“Your ministers require that we should receive again into our bosom those who have been our bitterest enemies, and restore their properties who have destroyed ours,—and this while the wounds they have given us are still bleeding. It is many years since your nation expelled the Stuarts and their adherents, and confiscated their estates. Much of your resentment against them may by this time be abated; yet, if we should propose it, and insist on it, as an article of our treaty with you, that that family should be recalled and the forfeited estates of its friends restored, would you think us serious in our professions of earnestly desiring peace?
“I must repeat my opinion, that it is best for you to drop all mention of the refugees.”[47]
But on this occasion there was a compromise. Instead of positive stipulations in behalf of the loyalists, it was agreed in the treaty, “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.”[48] Thus, while in every other article of the treaty it was agreed that certain things shall be done, here it was only agreed to recommend that they shall be done; and even the recommendation of restitution was confined to what are called “real British subjects,” and others “who have not borne arms against the United States,”—thus evidently recognizing the liability of those who did not come within these two exceptions.
After the adoption of our Constitution, this article came under discussion between the United States and Great Britain, when Mr. Jefferson, in the most elaborate diplomatic paper of his life, ably vindicated the conduct of our Government. It was on this occasion that he quoted the words of Bynkershoek, that “it stands to reason that whatever property of an enemy is found in his enemy’s country changes its owner and goes to the treasury, … even immovables, as is the practice in regard to movables.”[49] And in the course of his argument he distinctly asserts that “an Act of the Legislature confiscating lands stands in place of an office found in ordinary cases,—and that, on the passage of the Act, as on the finding of the office, the State stands ipso facto possessed of the lands without a formal entry. The confiscation, then, is complete by the passage of the Act, both the title and possession being divested out of the former proprietor and vested in the State.”[50]
This is strong language. Not only in our diplomacy, but also in our courts, was the validity of these Acts upheld. Mr. Jefferson was sustained by the Supreme Court of the United States in an early case on the confiscation of British debts by Virginia,[51] where it was declared that “a State may make what rules it pleases, and those rules must necessarily have place within itself,”[52]—that “the right to confiscate the property of enemies during war is derived from a state of war, and is called the Rights of War,”[53]—and that “the right acquired by war depends on the power of seizing the enemy’s effects.”[54] The last remark has a subtle significance. But the whole case was stated at the bar by John Marshall, afterwards our honored Chief Justice, in words applicable to our own times.
“It has been conceded that independent nations have in general the right of confiscation, and that Virginia at the time of passing her law was an independent nation. But it is contended, that, from the peculiar circumstances of the war, the citizens of each of the contending nations having been members of the same government, the general right of confiscation did not apply, and ought not to be exercised. It is not, however, necessary to show a parallel case in history, since it is incumbent on those who wish to impair the sovereignty of Virginia to establish on principle or precedent the justice of their exception. That State, being engaged in a war, necessarily possessed the powers of war, and confiscation is one of those powers, weakening the party against whom it is employed, and strengthening the party that employs it.”[55]
In closing what I have to say of the confiscation bills of the Revolution, I cannot disguise that they have been thought severe in some cases beyond the acknowledged exigencies of the times; but, admitting their severity, they testify none the less to those Rights of War in which they had their origin.
Such, Sir, are examples of history, so far as I can gather them, to guide on the present occasion. The embarrassment of Hercules is constantly repeated. There are paths to avoid, as well as paths to take; and it is for you to determine, under the lights of the past, how your course shall be directed.