George Washington Papers
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To George Washington from William Stephens Smith, 30 May 1783

New York 30th may 1783.


We would ee’r this have done ourselves the Honor, to have wrote Your Excellency had any thing occurred making a Communication necessary.

We arrived here the 10th Inst. and Immediately by a writtin Message announced our arrival to Sir Guy Carleton, and requested to know when we should attend him to produce our Credentials, in answer to which we were informed, by one of the Gentlemen of His Family, that he was still indisposed, and that as soon as his Health would permit his attending to public Business he would receive us.

On the 15th we waited on him and deliver’d a Copy of our Commission—He was pleased to express his satisfaction in the appointment and gave us assurances of affording every aid in his power in the Execution of our Authorities.

Thus matters remained untill the 24th, when we transmitted to him the inclosures No. 1 & No. 2, and this morning we received the answer Inclosure No. 3.

From the latter your Excellency will perceive the Door is closed against every future attempt to execute that Instruction in the Commission, requiring us to obtain the Delivery of Property—for it appears necessarily inferrable that no Property will be delivered untill it is at least in Danger of being [embarked] or carried away—When an Embarkation takes place, we shall make another Essay, and, in case of a Claim, insist, if the Claim is supported, that the property be not only not carried away, but that it be delivered to the Proprietor, and we shall immediately report to Your Excellency the result.

In the Interim between the 15th and 24th, Numbers applied to us for a restitution of their negroes and other Property in the Possession of others—but we supposed it most eligible to defer a Requisition ’till a clear unequivocal Case, similar to that of Mr Van Der Burgh’s, where the Proofs were at hand and not embarrassed with the Circumstances of a Capture in War or other Pretences under which Property is with-held here, should present itself—sensible that if Restitution was denied in such an Instance it would inevitably in every other.

By our Commission we are to represent “to the British Commander in Chief, every Infraction of the Letter or Spirit of the Treaty that Redress may be immediately order’d”—with respect to this Instruction we find ourselves in rather an embarrassing Situation, and should be happy in Your Excellency’s Sentiments and Directions.

Our Difficulties are respecting Acts which we are to represent—Whether only such are intended as are merely the Acts of Individuals, of which the Government here cannot be presumed to have notice, and which have not the sanction of their Authority—or whether the Instructions also comprises Acts of general and public Notoriety, and done in consequence of the Orders of the Commander in Chief—We have hitherto supposed the former only to be the object of our Commissions, as it appeared to us improbable that Sir Guy Carleton ever intended to afford Redress against his own Orders and Measures which ought always to be supposed to be taken with due Caution and Deliberation, and should it be declared that we ought also to take notice of the latter we flatter ourselves Your Excellency is apprized that it will open an extensive Field of fruitless Representation.

If such be the Intent of our Commission it possibly may become our duty to represent the Embarkations of the Persons, here distinguished by the appellation of Loyalists, as an Infraction of the Treaty—for by the Terms of the Treaty the King of Great Britain is to with-draw his Armies Garrisons, and Fleets, which in our Conception does not imply a Right to convey away the Persons or Effects of any of the subjects of the United States, under which Character we view these Loyalists except such of them who by having actually engaged in Military service may therefore be deemed as belonging to the Armies—This leads us to mention to your Excellency that, in consequence of his Invitation, we a few Day’s since met Mr Elliot who presides in a Kind of Custom house department here—the design of the meeting was to know whether we could suggest to Sir Guy Carleton any mode for preventing Merchant Vessels, outward bound, from carrying away American Property—we observed that our Commission directed us to superintend such Embarkations as the Evacuation of this Post should require, that we could not view Commerce of any kind as requisite to an evacuation and therefore that we should decline having any Agency in the Business, That if we did interfere it would only be to represent the Matter as an Infraction of the Treaty, agreable to our Interpretation of which, the British Commander could not Justify exercising any Jurisdiction or permitting any Trade or Intercourse byond what was necessary for the security and Accommodation of the Fleets, Armies and Garrisons untill they could conveniently be with drawn.

From the two Instances we trust your Excellency will collect our Embarrassments, and we could therefore wish that if possible some difinition or Character may be given of the Acts which it is intended we should represent as Infractions of the Treaty, and we cannot forbear observing to your Excellency that in our sentiment no valuable purpose will be effected by representing, at this Juncture, violations of the Treaty—Cases where we are certain Redress will be denied, when possibly we have it not in our power to enforce it, and with respect to which, if it should be hereafter necessary, the fullest Evidence can be Obtained—The Expediency of such Representations at this Time was in our Estimation so momentuous a Question as to induce us to defer making them untill we had an Oppertunity of communicating to Your Excellency and receiving your further directions.

Hitherto no Inconvenience we apprehend has arisen from the Delay.

We are not authorized to assure your Excellency that any Preparations are making to with draw the British Fleet and Army from this Place, unless an Embarkation of the Loyalists which will shortly take place is to be considered as such—The Troops are still in their Winter Quarters, and the greater part of the Transports are lying at the Wharves, and it does not appear to us that they are fitting-out for sea neither do we know that any orders have been given for that purpose. We have the honor to be with perfect Respect You Excellency’s most Obedient Humble Servants

Egbt Benson

W.S. Smith

DLC: Papers of George Washington.


May 24th 1783


With this We do ourselves the Honor to transmit Your Excellency the Case of James Van Der Burgh Esqr., an Inhabitant of this State, and conformable to the Instructions contained in our Commission it becomes our Duty to request that Your Excellency will please to direct that the Claim of Mr Van Der Burgh may be enquired into, and if on such Enquiry the Facts as stated should be proved, that the Horse may then be deliver’d to Mr Van Der Burgh. We have the Honor to be with respect Your Excellency’s most obedt Serts

Egbt Benson

W.S. Smith


New York May 29th 1783


I am directed to inform You in answer to Your Letter of the 24th instant, that after the most attentive review by the Commander in Chief, of his letter to the Honble R. R. Livingston, which has become the declared Ground of Your Commission, he is not able (suspending all other Considerations) to perceive either in that Letter or in any Clause of Your Instructions any Authority for Your officially claiming on behalf of Mr Van Der Burgh an Horse stolen or taken in Dutchess County in the Year 1780 and which You do not even suggest to be in danger of being presently embarked and carried away. I have the honor to be Gentlemen Your most obedt & most humble Servt

M. Morgann


The Case of James Van Der Burgh Esqr.

c.30 May 1783

Mr Van Der Burgh had an Horse stolen from him out of his Stable in Reckman Precinct in Dutchess County [26]th Feby 1780, and the Horse was conveyed by the Persons who stole him to a then British Post in West Chester County, where he has since been detained so that Mr Van Der Burgh could not recover him again—The Horse is now in the Possession of Colo. James De Lancey, in this City, from whom Mr Van Der Burgh has demanded him, and who refuses to deliver him to Mr Van Der Burgh.


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