Philadelphia, April 15, 1783.
Sir:
There are two resolutions passed relative to the restoration of the
British prisoners, and to making arrangements for the surrender of the
posts in the possession of the British troops; the first of which
is to be transacted by you in conjunction with the Secretary at War;
the latter by yourself alone. I will explain to you some doubts which
have arisen in Congress, with regard to the true construction of the
provisional treaty; which may be of use to you in transacting the
business above-mentioned.
The sixth article declares, that there shall be no future
confiscations, etc., after the _ratification of the Treaty in America_;
and the seventh article makes the surrender of prisoners, evacuation of
posts, cessation of hostilities, etc., to depend on that event, to wit,
_the ratification of the treaty in America_.
Now the doubt is, whether _the treaty_ means the provisional treaty
_already concluded_, or the _definitive_ treaty _to be concluded_. The
last construction is most agreeable to the letter of the provisional
articles; the former, most agreeable to the usual practice of nations:
for hostilities commonly cease on the ratification of the preliminary
treaty.
There is a great diversity of opinion in Congress. It will be, in my
opinion, advisable, at the same time that we do not communicate our
doubts to the British, to extract their sense of the matter from them.
This may be done by asking them, at what periods they are willing to
stipulate the surrender of posts; at the same time that they are asked,
in what manner it will be the most convenient to them to receive the
prisoners.
If they postpone the evacuation of the different posts to the
definitive treaty, we shall then be justified in doing the same
with respect to prisoners. The question will then arise, Whether,
on principles of humanity, economy, and liberality, we ought not to
restore the prisoners, at all events, without delay? Much may be
said on both sides. I doubt the expedience of a total restoration of
prisoners, till they are willing to fix the epochs at which they will
take leave of us. It will add considerably to their strength; and
accidents, though improbable, may happen.