Grosvenor Square June 16. 1786
Two days ago, I was honoured with your Letter of the 4. of May, in which another of the first of the same month is referr’d to, and as I hear there is a Passenger expected from the Packet, I hope to receive it from him when he arrives in town.
Lord Carmarthen told me Yesterday, “that he had Letters from Mr Anstey, mentioning his civil reception: his Lordship Said, too, that a Minister Plenipotentiary would certainly be Sent to Congress: that it was not from any Coldness or Want of Respect to the United States that it had not been already done; but merely from the difficulty of finding a proper Person: that he had received many Applications, but they had been generally from Persons who he was Sure would not be agreable in America: and in some Instances from Persons more Suitable for a Place in the Customs, than in the Corps Diplomatique.”
A long Conversation ensued upon the Subject of the Posts Debts &c little of which being new is worth repeating. The Policy of giving up the Interest during the War, and of agreeing to a Plan of Payment by Installments, was again insisted on, from various considerations, particularly from the evident Injustice of demanding Interest for that Period. it was urged that the Claim of Interest in most Cases was grounded upon Custom, and the mutual Understanding of the Parties: but that it never had been the Custom, nor had it ever been Understood or foreseen, that an Act of Parliament Should be passed, casting the American Debtor out of the Protection of the Crown, cutting off all Correspondence and rendering all Intercourse criminal; for that was the Result and the legal Construction during the whole War. Here his Lordship fully agreed with me and even outwent me, Saying that “it was very true that by construction of the Law of this Land, it was High Treason in a Creditor in Great Britain to receive a Remittance, from his Debtor in America during the War. His Lordship added Some Slight Expressions concerning the Interest and wished that the Courts were opened for recovering the Principal. We might leave the Interest for an After Consideration. in Short they waited only for some Appearance of a disposition.” The Answer to my Memorial of 30 Nov. contained their true Intentions. They Sincerely meant to fullfill "every Engagement, whenever they Saw a Disposition on our Part." These Expressions you see are somewhat oracular, but they conveyed so much meaning to me that I will no longer hesitate to recommend to Congress to take up this matter and decide it at once. it would be going too far to point out the Mode. but it may be Suggested, whether it is not expedient for Congress to require of all the States who have made Laws irreconcilable to the Treaty, immediately to repeal them. declaring at the Sametime, that Interest upon Book Debts and Simple Contracts during the War, cannot be considered as any Part of the Bona Fide Debts intended in the Treaty. as to Specialties, there may be in Some Cases more Difficulty. Yet I dont See but the Same Reasoning is applicable to all. The legal Contract was dissolved by throwing Us out of the Protection of the Crown and our Subsequent Assumption of Independence, and had no Existence untill revived by Treaty, private honour and Conscience are out of this Question. those who think themselves bound by these Ties, will do as they please. but I believe under all the Circumstances, few Persons even of the most delicate sentiments will be Scrupulous. if Such a Declaration should be made by Congress, Candour will require that it Should extend to both Sides, to the British and Refugee Debtor to American Creditors as well as Vice Versa.
If Congress Should choose to avoid involving themselves in Such a
Declaration, it would not be proper for individual States to do it; and in this Case, I
humbly conceive the Laws ought to be repealed, and the Question left to Judges and
Juries, who upon the Strictest Construction of Law Equity and the Treaty may in my
opinion in most <
if not all> Cases if not in all, deny the Interest during the
War to the Creditor. in some of these Ways relief must be had, or in none, for the
Ministry here will never intermeddle in the Business.
If any one Sshould ask what was the Intention of the Contracting
Parties at the Treaty? The Answer must be the Treaty itself must determine, and any one
be> it may judge as well as one of the Plenipotentiaries. The Word
“heretofore,” was not used in Preference to the words “before the War,” with any View to
the Interest but to comprehend Debts which had been contracted during the War.—The
Intention was, no doubt, that whatever Judges and Juries should find to be a Debt,
should be recovered. and I believe that any Man acting in the Character of either will
find it difficult to Say upon his Oath, that Interest during the War, is bona fide
due.—did any Debtor, forseeing the War, contract a Debt, and pledge his Faith to pay
Interest during the Continuance of it? Let this be proved and a Judge or Juror would
compell Payment. But probably there is not one such Case.—The War may be considered as
one of those Accidents, bona fide not expected or foreseen, against which Equity will
always give Relief.
With great and Sincere / Esteem I have the Honour to be, sir, / your most obedient and most / humble servant