198 APPENDIX TO BKITISH COUNTER CASE. 



to be mere form of words not matters of course but a solemn 

 promise to accept, perform, and ratify all that should be done in their 

 name. There were two propositions contained in the fifth and sixth 

 articles; the security of the persons of those to whom the articles 

 relate, and restitution of their estates. He begged their Lordships to 

 see how the effect would be in both cases. The treaty was not supe- 

 rior to law, and that there were positive laws enacted by the provin- 

 cial assemblies, directly contrary to these provisions, he need not 

 inform their Lordships. He quoted several of their laws of banish- 

 ment declaring persons by name aliens forbidding their return 

 their punishment if they did return, being, that they were seized by 

 the sheriff of the county where they were seized, and by him made 

 over to the board of war : by their sentence, they were to be trans- 

 mitted to some of the British dominions; and if they should after 

 this presume to return, they were to be punished with death, like 

 felons. While these laws were in existence, the sheriffs must obey 

 them; they could not take cognisance of the treaty the laws are 

 compulsory on them they have no discretion and therefore it was 

 nugatory to stipulate for these unhappy men going into the colonies, 

 and staying for twelve months to endeavour to regain their estates. 

 Beside the law of banishment, the law of confiscation would operate 

 against these unhappy men; the noble Lord pointed out its provi- 

 sions, and said that it was recommended by Congress originally: 

 under this law the effects of the loyalists were sold for public use; 

 the legislatures of the respective provinces had warranted the titles 

 to the purchasers for ever. 



Suppose, then, that the possessors of these estates will not part with 

 them; how can the loyalists force them? The States cannot compel 

 them without a breach of faith ; and how is the injured owritr to buy 

 it without money? Suppose that an estate had been parcelled out 

 and sold to twenty persons, how would it be practicable to ascertain 

 the price ? Beside the danger of subsequent transfers, all these diffi- 

 culties occurred, even supposing that respect and attention was paid 

 to the recommendations of the Congress ; but We had only the recom- 

 mendations of Congress to trust to: and how often had their rec- 

 ommendations been fruitless? there were many cases in print in 

 which provincial assemblies had peremptorily refused the recom- 

 mendations of Congress. It was but the other day the States refused 

 money on the recommendations of Congress. Rhode Island unani- 

 mously refused when the Congress desired to be authorised to levv a 

 duty of 5 per cent, because the funds had failed: many other in- 

 stances might be produced of the failure of the recommendations of 

 Congress, and, therefore we ought not in negotiating for the loyalists 

 to have trusted to the recommendations of Congress : nothing but the 

 repeal of the Acts existing against them ought to have sufficed, as 

 nothing else could give effect to the treaty. Repeal was not men- 

 tioned; they had only stipulated to revise and reconsider them, a 

 mortifying and humiliating distinction was made in prejudice of 

 those who had borne arms for Britain : to this we should never have 

 consented ; their services claimed the utmost gratitude, and we ought 

 to have hazarded almost everything for them; what had they not 

 sacrificed for us ! had they not left their families ? had they not left 

 their country? had they not risked their lives, and made a common 

 cause with us; and what was the perfidious and ungrateful return? 



