Benjamin Franklin Papers

To Benjamin Franklin from Benjamin Vaughan, 9 August 1782

From Benjamin Vaughan8

Copy:9 Massachusetts Historical Society

Paris August 9th: 1782

My Dearest Sir

To avoid pressing you with conversation, & to shew how little I expect you to enter into any answer or dispute, I leave with you upon paper, my thoughts concerning your American confiscations; that you may take as much or as little of them as you please.

I know of two principles, which your American friends will say influenced them in this matter; Retaliation & the just rights of society— Let us begin with Retaliation; from which, however I may exclude maritime captures; because you have seemed of opinion, that America has something like revenge in that article, by making similar captures.

I am sensible the Injuries done you, have very feelingly provoked Retaliation. It is, however a fact in criminal Law, that tho’ there are no bounds to crimes, yet every wise society determines that there are bounds to Punishments. If a Villain tortures my Brother, there is no civil law that determines reciprocal torture for that Villain; & still less for that Villain’s Brother, who perhaps was wholly averse to the crime. Where the Practice was otherwise, Brutus (according to Voltaire) would say, “C’est agir en tyrans, nous, qui les punissons”—1 It is not the practice of our modern Europians, I am sure, to confiscate in this manner; for in the hottest wars that we have known among us, we have seen Enemies respecting the private property of each others Subjects, wether in Lands or in Funds, when left in their power; & this, even where the Individual has taken a personal part in the war & it’s success. And notwithstanding the brutality which a part of our people have exercised beyond the Atlantic; & notwithstanding our Ministry (as you say) by declaring you traitors, virtually determined your whole property to be confiscated, & meant to have confiscated that of particular persons; yet I know of no one public Confiscation of such American Property existing in England itself notwithstanding the many debts still due from America to England, nor Do I believe your example will yet be pleaded with us, in order to induce our legislature to confiscate such American property.— And indeed there was no time of the war, in which an act would not have been in danger of being highly unpopular in England. The Case which I put were it to happen would be highly distressing to many; as I know some who are in the predicament of having property & friends on both sides of the quarrel; & who would in consequence be greatly divided which of the two places to chuse for their residence & Party.

As to the detention of the money in the funds, belonging to the province of Mary land;2 I think the case admits of a very natural explanation, without considering it as an act of public confiscation; a measure, which the English for the sake of their public credit & policy, would as much avoid I believe in the case of America, as they do in the case of Holland. The money in question was I think was deposited in our funds by the hands of private commissioners; & as it depended upon an Event (vizt: the fate of the war) whether the new Government of Mary land was to be held legitimate or not, the commissioners wished to avoid the risque of paying the money twice over; for having been intrusted with it by the proprietary Government, they were afraid that a receipt given on the part of the new popular Government only, might not be deemed as a sufficient Acquittal for them, should the old proprietary Government be restored by the force of the British Arms.— In this affair, therefore, the commissioners acted as private men; & tho’ the opinions that led them, were obtained from Crown Lawyers, yet their advice was given as private advice; &, coming from lawyers, was framed according to statutes, & not according to Policy or justice.— Besides, considered as a public sum, it was very small; only £30,000; & for this £30,000, a general confiscation took place, of refugee & absentee property;3 without, considering whether it was not more than a proportionate Reimbursement; even supposing the money should be finally sequestered, contrary to probability.— But I may be told, that the principles of society admit & require these measures towards offending subjects, independant of Retaliation.— When I think, however, of any punishment for guilt, I am always apt to reflect by what means the unhappy Parties became guilty.— In England, the Sin of the bad politics that prevailed, arose very much from distance, bad education, & industrious deceptions; & often times when it appeared the act of the many, it was really the act of the few. Such Sins therefore of the few, are to be punished on the many with some measure of relenting; and so far as the punishment is meant for prevention, something should be considered as to the frequency of the occasion which is said to require the prevention, & the real efficacy of the example itself for preventing— Among the refugees, I am convinced that some (for want of a better reason) took side in order to follow their relations; others took side from some accidental injury; others from fear of the issue, in a struggle where they thought more was to be lost, than could be gained (a Maxim, which ought to have fair influence in all situations, & which cannot be held worthy of the Bitterest punishments); not to mention, that it is but candid to allow, that as Mankind differ on all other subjects, so it is possible for some [few?] honest men to have differed on this, & that some persons also may have been influenced by the oaths they were made to take, or by the personal danger that was supposed at times to threaten them. Refugees of this discription, one should think, deserved at least a degree of lenity.

But what are we to say to the confiscation of the Estates of distant innocent absentees, among whom were many Women & Youths; Absentees, who never took a hostile part, or who perhaps were usefully employed in Europe in combating prejudices or distributing information, or who were otherwise attached to some particular connection or Profession, or some place of Residence or education. They left their Estates answerable for paying their full proportion of taxes, & have themselves rarely received one farthing of Revenue in the interim.— It is true, these absentees yielded no personal service in the field; nor were all of them calculated for yielding it; but neither have many of your own subjects yielded personal services; & in what are such subjects better than absentees; & why are the one allowed to provide Substitutes for themselves in the Militia, & not the other? The Estates of the absentee was ready to contribute towards the substitute, & I presume was taxed, with a view to it; & as the proprietor of it was not upon the spot to mitigate his share of the tax, it is probable he was not spared so much as the resident.— The only point of essential difference that I see between them, is, that the Resident has probably taken oaths which the absentee has not taken; but as Experience shews, the facility with which such oaths are taken and broken, this difference becomes of less importance. The resident in defiance of his oath may have secretly spread causes of terror and distress, thro’ his country, which seldom can be imputed to the other; so that he may be found no otherwise to have taken a side, than by contributing his effects; in which shape probably the Absentee has taken his side still more seriously. Risques attending the passive residents from the events of war are put a good deal out of the question when it is candidly considered how easy it is for the resident to avoid giving offense & even to gratify the Loyalists; so as to secure their protection, in spite of his oaths, his contribution to taxes, & his backward service in the Militia, & perhaps, all things considered, to make his situation more useful to himself, than that of the absentee. In short, tho’ I think I have heard all that is usually said about the right of Society to command the persons, Effects, & landed property of it’s members; yet the present case I believe exceeds the usual theory, as well as practice of Europe, on these occasions; especially when it is remembered, that the military service is so easily, & has in fact in America so often been, compounded for, either in money or taxes.

If these Estates are said to be confiscated, to furnish a fund out of which to indemnify your own sufferers, I cannot but reply, that if those sufferers are provided for inconsistently with justice, they will create other Sufferers. They will occasion Violence to those private rights, which are not less the pillars of Society, than those sterner Virtues that produce civil Revolutions. They will eject others from honest acquisitions, made in peaceable times by private citizens, either by purchase, economy(?) or labor; & this too, when most of the States have other natural ways of assisting the sufferer, by considerations of vacant Lands, or immunity from taxes, & the like. Besides whenever the English evacuate any of their Posts, much of this private property will be restored again to your people; not to mention, that it is in some little degree to be considered, that English subjects have suffered in Florida & Canada by a simular course of war; & may still again suffer, either there, or in the West Indies.— There are suspicions, however, that these late confiscations, are made chiefly as a substitute for taxes, which have only lately begun to be imposed in America; & those suspicions are confirmed, from finding you have been so little disposed to retaliate for personal injuries. And there are reports here, on this side the Atlantic, (which I pray may not be authentic), that a language is uttered & principles are espoused on some of these occasions, not very favorable to the encouragement of public humanity or private charity; & in some cases, to the breach of personal gratitude, & the improper indulgence of private interest & private pique.— There is no doubt, that the several parties whose property is in question, must expect more or less to suffer considerable levies upon it; but (excepting a few,) I think not to the lenth of complete Sequestration.— Besides, it is worth considering, that the gain of the public has in no degree been in proportion to the injury of the individual; the Estates having in many Cases produced less than their value, & especially formerly, when they were paid for with a falling currency.— A General Confiscation likewise, with a design of Restitution in favor of deserving individuals, I conceive must end in injustice, either to the sufferers or yourselves; first, because all retributions is difficult; & next, because it will be particularly hard for yourselves to restore a value, where you did not receive a Price; & if you mean to do precise justice, by returning the specific property sequestered, you may do injustice to the purchasers; who may have ventured upon considerable improvements, as well as withstood other bargains in the interim, for the sake of it. Instead therefore of confiscating the whole number of these Estates indiscriminately, & afterwards reinstating the innocent; it seems a truer method, to begin only with what are known to belong to the guilty, & add the rest in proportion as they come to light.— But as a friend to the prosperity of America, I beg to ask, whether the principle of imposing Residence upon purchasers or traders in that country, may not in some views be impolitic; as Many Europians or West Indians might employ their capitals in cultivating Trade or Lands in America, so as to make the remaining Lands more valuable; & more abounding in useful labours, for by their situation they might easely Send over provided they were allowed to preserve to themselves the Choice of Residence out of the Country; for at present, it appears as a Rule, that no Europian can vest a Capital in trade or lands, nor any American depart from his trade or Lands, without (what is every where else unheard of) a formal leave of Absence.

But as it is time to conclude, I shall only add, that the farther these things are proceeded in, the more obstacles are thrown in the way of affectionate Reconciliation. The present English Ministry & government, are not your wrong doers, & will perhaps feel themselves, with the rest of the English Nation, somewhat hurt, at not discovering things returning into an immediate train of happy Settlement.— The business however of deciding concerning the more obnoxious refugees, is an affair left in the hands of Persons fully authorized on the subject; & what I write on this occasion, you know to be the more Spontaneous Measure of an individual, (who feels warmly for America,) in favor of Refugees or absentees, who have proved either innocent or neutral in the public Contest.

I am well aware you have no present powers to act in this Subject, nor has even the Congress itself, which has commissioned you. But you can communicate Opinions on this head, to your different Countrymen; & perhaps procure the Revision or suspension of what is going forwards that relates to it, in the different States.— At all events, as peace & the mode of it is a general Import, I conceive not wholly impracticable for the different States to receive the advice of Congress, & for Congress in return to receive the instructions of the different States, for concluding this matter in a general national way, with Great Britain. And the Instructions to their Commissioners here, may either arrive in time for the general treaty; or else serve in bringing on a special Settlement of the affair; supposing the States unwilling to take the redress of the grievance upon themselves.

I am, my dearest Sir, with the utmost respect, Your ever devoted, affectionate & grateful,

Benjn. Vaughan

[Note numbering follows the Franklin Papers source.]

8The subject of this letter, the confiscation of property from Loyalists, was of interest to Vaughan’s fellow Briton Richard Oswald, who may have discussed the matter with Vaughan. Oswald’s instructions included an article calling his attention to such confiscations: Giunta, Emerging Nation, I, 483, 505.

9In a hand we do not recognize, with later editing marks (which we do our best to ignore) in another unknown hand.

1Voltaire, Brutus (Paris, 1731), Act IV, Scene vii.

2The British government prevented the trustees of Maryland from selling Bank of England stock: XXXI, 336n; XXXIII, 254–5.

3Maryland required absentees in the British dominions to return to the state by March 1, 1782, under penalty of forfeiture of their property: XXXV, 179.

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