“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.