Your Favor of the 1st of Jany. I have had the pleasure of receiving, & should have answered it before this time, had I been able to collect any Information of Consequence relative to your Queries. You observe, that several questions arise with Respect to Confiscations, & the Affairs of the Absentees -- That probably the Laws for Confiscation, are not, in some of the States the same in operation, as our Laws, which occasioned the 6th Article in the Treaty to be worded as it is. I have enclosed for your Information what our Commissioners have wrote Jointly on the Article respecting the Refugees;(1) & it is not in my Power to collect any other Information of Importance.
New York has had no Delegate in Congress since we have been at this Place. New Jersey has had one only, & he is not able to give any Detail of the Proceedings of this State in these Matters, Neither can I collect any Thing from the Delegates of Pennsylvania that will throw any Light upon your Queries.
Congress did on the 14th of January last make the Recommendation stipulated in the 5th Article(2) -- And I apprehend the Business must now rest with the several Legislatures, who alone, have the Right & Power of altering the Laws respecting Absentees, & of making such others relative to them as shall not be expressly contrary to the definitive Treaty. Some may say, that what relates to them in the Treaty is so ambiguously express'd, as that it will be difficult to determine what may, or may not be opposed thereto. One Point I think is clear that the Refugees have nothing to expect, of Rights; The Legislatures must determine how far it is proper to extend their Lenity & Compassion towards them.
The State of Maryland has confiscated real Estate, the Property of british Subjects to the Amo. of about £300,000 Sterg. Little is said about it. The former Owner of the greatest Part of it, Mr. Hartford a natural Son of the late Lord Baltimore, & his Heir, is now in this Place; He has made no formal application tho' he has been here since last August. It is supposed he waited for the Completion of the Definitive Treaty, since which the Legislature of this State has not been in session -- from what I can collect, any Application of his will be fruitless. The State have also confiscated of his, about £30,000 Sterg. due for quit rents. This may be a Matter of more nice Discussion as it will come under the Denomination of a Debt due to a brittish Subject. It is said, that a Charge of an equal Amount will be made by the State on this ground, a certain Sum was laid on the Tonnage of Vessels & appropriated for the Defence of the State, which was received for many years & not applied to the Purpose for which it was granted, but the Proprietor or his Governor keept it to their own Use. There does not
These consider the Navigation Act, & a firm Adherance to it, as Matters of the highest national Consequence, & on which the future Prosperity, if not Existence of the Nation depend.
But it is nearly of as high Consequence to us that they should relax; For without the beforementioned Branches of Trade; Masstts., especially, will have gained a Loss as St. Paul says -- She will have gaind her
But granting that we are to make a Bargain for the Refugees, ought not the Matter to be well husbanded. If thro' them we are to obtain a more liberal commercial Treaty, that Indulgence ought not to be granted until Stipulations are fairly entered into. We certainly have a Right to make the best we can of a bad Bargain. As it is possible, tho I do not think it probable, that Britain might be induced on Account of the Refugees to enter into a more favourable Treaty of Commerce with us, we ought by no Means to relax with respect to them, until we know her ultimate Intentions.
You seem to be afraid to ask what is to be done, with Loan office Certificates & old Emissions.(4) Perhaps I have much more Reason to be afraid to give you an Answer. As to the last, we can take no Question in Congress upon the Matter, for Want of a sufficient Representation. We have had nine States represented but three Days only, since we have been in this Place -- And when we shall have nine States again, I know not. Congress have but a few Objects of Consequence before them; they generally require the Assent of Nine States. If there was a full Representation, these might all, in the Course of two Months, be dispatch'd, & Congress might then have a Recess of five or six Months. If the States are not disposed to keep up a Representation, how can the Evil be remedied? Congress have no Power over their absent Members. As to Loan Certificates, it does not appear to me that there is a Probability that the States will give to Congress permanent & adequate Funds to discharge Interest or Principal. But we must wait the Issue.
I am Dear Sir, your most huml Servt. Saml Osgood
RC (MHi: Paine Papers).
1 In their letter of July 18, 1783, the commissioners had explained:
"There are, no doubt, certain ambiguities in our articles; but it is not to be wondered at, when it is considered how exceedingly averse Britain was to expressions which explicitly wounded the tories, and how disinclined we were to use any that should amount to absolute stipulations in their favor.
"The words for restoring the property of real British subjects were well understood and explained between us not to mean or comprehended American refugees. Mr. Oswald and Mr. Fitzherbert know this to have been the case, and will readily confess and admit it. This mode of expression was preferred by them as a more delicate mode of excluding those refugees, and of making a proper distinction between them and the subjects of Britain, whose only particular interest in America consisted in holding lands or property there.
"The sixth article, viz., where it declares that no future confiscations shall be made, &c., ought to have fixed the time with greater accuracy. We think the most fair and true construction is, that it relates to the date of the cessation of hostilities. That is the time when peace in fact took place, in consequence of prior informal, though binding, contracts to terminate the war. We consider the definitive treaties as only giving the dress of
2 That is, "earnestly recommended 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." See JCC, 26:30-31.
3 The first part of this lament that "Luxury, more deadly than any foe, has laid her hand upon us," is drawn from Juvenal, Satires, VI.292-93; "saevior armis luxuria incubuit...." The remainder was probably Osgood's creation, drawn from similar aphorisms in English literature.
4 See Massachusetts Delegates to John Hancock, February 1, note 2.