been an actual sale. "But," continues he, "I can find, nowhere, even a request, and that only implied, that any of the three classes may dwell among us, and enjoy the immunities and privileges of citizens: for the first class are considered as former subjects; the second and third as acquired subjects of England;" acquired but not real.

Thus we see, by taking the outlines of Mentor's construction, and filling up the canvas in a manner suited to the design, the whole is a group of absurdities; or, in other words, by connecting the consequences with the principles of his comment on the Treaty, the result is too ridiculous not to strike the meanest understanding.

It must appear by this time manifest, that there is nothing in the terms of the Treaty, which countenances the supposition that those who have been within the British lines are considered and stipulated for as aliens. One ground upon which this idea has been originally adopted, was, that it would have been improper to have stipulated for them at all, if they were not aliens: but I have shown, in my former letter, that a stipulation for subjects, in similar circumstances, has been far from unprecedented.

A good criterion by which to determine the meaning of the Treaty, in this respect, is, to recur to the impressions that it made on its first appearance, before there had been time to contrive and substitute an artificial to the natural and obvious sense of the words. Every man, by appealing to his own bosom, will recollect that he was at first struck with an opinion that the disaffected were secured from every future deprivation and injury whatever and however many may have been chagrined at the idea that they should be admitted to a parity of privileges with those who had supported the Revolution, none doubted that this was the sense of the Treaty. Indeed, the principal doubt seemed to be, in the first instance, whether the sixth article was not so broad as to protect even those who had been attainted, from personal injury, in case of their return within the State.

I shall not, in this place, revive the question of the power of Congress to make this stipulation; not only because Mentor appears to have conceded this point, and to acknowledge our

obligation to a faithful observance of the Treaty; but because what has been offered in my former letter on this head, must continue to appear to me to be absolutely conclusive, until some satisfactory limits can be assigned to the powers of war, peace, and treaty, vested in Congress, other than those I have mentioned the public safety, and the fundamental constitutions of society.

When any different and intelligible line shall be drawn, I will give up the question, if I cannot show it is inadmissible in practice.

The common interests of humanity, and the general tranquillity of the world, require that the power of making peace, wherever lodged, should be construed and exercised liberally: and even in cases where its extent may be doubtful, it is the policy of all wise nations to give it latitude rather than confine it. The exigencies of a community, in time of war, are so various, and often so critical, that it would be extremely dangerous to prescribe narrow bounds to that power by which it is to be restored. The consequence might frequently be a diffidence of our engagements, and a prolongation of the calamities of war.

It may not be improper, in this place, to answer an objection. which has been made to a position contained in my former letter. It is there laid down as a rule, that the breach of a single article of a Treaty annuls the whole. The reason of this rule is, that every article is to be regarded as the consideration of some other article.

This has given occasion to observe, that a breach of the Treaty on the part of the British, in sending away a great number of negroes, has, upon my principles, long since annihilated the Treaty, and left us at perfect liberty to desert the stipulations on our part.

The breach of one

This admits of an easy and solid answer. article annuls the whole, if the side injured by it chooses to take advantage of it to dissolve the Treaty:* but if its interest dictates a different conduct, it may waive the breach, and let the obligation of the Treaty continue. The power of determining

* Vatel, page 130, ý 48.

whether the Treaty has been broken, properly belongs to that body who made it. Congress have wisely taken a different course; and, instead of reviving the state of hostility by declaring the Treaty void, have proceeded upon the presumption of its continuing in force; and, by subsequent acts, have given it additional validity and strength. The definitive Treaty has been since concluded, and proclaimed with a remarkable solemnity and energy for the observance of the citizens of the United States.

The third mode mentioned, by which the inhabitants of the Southern district may have lost their rights of citizenship, is, their having been left out of the compact by some subsequent association of the body of the State. The fact, however, is directly the reverse: for, not only the Constitution makes provision for the representation of the people of the Southern district in the Legislature, but, during the whole war, by an ordinance of the Convention who framed the Constitution, an actual representation has been kept up in a manner, the regularity of which (whatever might have been the expedience of it) was more than questionable, as all elections were suspended in that part of the State. This circumstance of a constant representation of the inhabitants of the Southern district in the Legislature, during the war, is, in a rational as well as a legal light, a conclusive refutation of the pretended alienism of those inhabitants by any events of the war, or by any other matter that applies to them in a collective view antecedent to the Treaty of Peace. To this it may be added that a variety of the laws of the State, in the course of the war, suppose and treat the inhabitants of the Southern district as subjects owing allegiance to the State, and, consequently, having the rights which subjects in general enjoy under the government.*

The argument is still stronger when we attend to what has been done by the government since the restoration of its jurisdiction in the Southern district. We did not wait till a bill of naturalization was passed, to remove the disabilities of the inhabitants before we proceeded to elections. We did not confine those

* Vide Position 5th.

elections to such persons only as had resided without the British lines, but left them open to all descriptions of persons who would choose to take the oath prescribed for that purpose by the Council. Few, indeed, in this city, besides those who had been absent, did in fact vote at the elections; but a considerable number did in the counties. And if we should admit the doctrine of the general alienism of the inhabitants of the Southern district, either before, or in consequence of the Treaty of Peace, a curious question, not easy to be solved, would arise, as to the validity of the election of many individuals now holding seats in Senate and Assembly. So far as an act of government can decide the point in controversy, it is already decided. The Council for the temporary government of the Southern district, in appointing the mode of election; the conduct of the Legislature since, in admitting the members elected in that mode, are unconstitutional; or the inhabitants at large of the Southern district, either by the Treaty, or any antecedent circumstance, are not aliens.

I have dwelt the more largely on this head, not only because the idea of a general alienism of the inhabitants of the Southern district is the ground Mentor has taken; but because some persons, who have it in their power to make a mischievous use of it, are endeavoring to give it circulation, where, if it could prevail, it might lead to pernicious consequences. Pressed by the difficulty of discriminating those who may have forfeited the rights of citizenship from those who have not, without a manifest violation, as well of the Constitution as of the Treaty of Peace, they are willing, if possible, to devise some general expedient to evade both; and the one they have hit upon, is, to declare all those aliens who have lived within the British lines during the war, on the miserable pretence that they are made such by the Treaty.

Thus we have another example how easy it is for men to change their principles with their situations; to be zealous advocates for the rights of the citizens when they are invaded by others; and, as soon as they have it in their power, to become the invaders themselves; to resist the encroachments of power,

when it is in the hands of others; and, the moment they get it into their own, to make bolder strides than those they have resisted. Are such men to be sanctified with the hallowed name of patriots? Are they not rather to be branded as men who make their passions, prejudices, and interests, the sole measure of their own and others' rights?

The history of mankind is too full of these melancholy instances of human contradiction.

Having mentioned the oath directed to be prescribed to electors in the Southern district, by the Council for the temporary government, I shall take occasion, in this place, with freedom but with respect, to examine the propriety of that measure.

This measure was founded upon an act of the Legislature of this State, passed in the year declaring, that persons who had been guilty of certain matters particularized in that act, should be for ever after disqualified from voting at all public elections. I confine myself, for the sake of brevity, to the general idea of the act. The embarrassment with the Council, no doubt was, how to ascertain the persons who had incurred the disability. As the matters to which that disability related were of a specific nature, it was necessary they should be specifically ascertained before the law could have its effect.

The Council, therefore, could not satisfy that law by declar. ing all those disqualified who had resided within the British lines during the war. They would not leave the operation of it to a course of judicial investigation and decision, because this would be to fly in the face of the Treaty; and appearances were to be preserved. This consideration was strengthened by another. The course of the law must have been dilatory. The elections were to be entered upon. It was deemed inexpedient that the voice of the citizens at large (which must have been the case if the act of the Legislature in question had been left to its natural course) should govern these elections. If the returning citizens were not at this juncture gratified, tumults were by some apprehended.

This was a plausible step, and on that account the more dangerous. If we examine it with an unprejudiced eye, we must