To Stephen Van Rensselaer
New York Jany 27. 1799
I ought to beg your pardon for not having before answered your letters of the 12th. of Novemr and 11th instant.1 You know the multitude of my engagements. Added to them, my health for a considerable time past has been very indifferent. Be indulgent.
I left a memorandum with the Secy at War respecting Mr. Tisdale.2
As to an Insolvent law,3 these are my ideas. There is a serious doubt whether any such law, passed by a Legislature subsequent to the adoption of the Constitution of the UStates, will not be an infringement of that article, which forbids a state to pass “any law impairing the obligation of Contracts.” I think it the better opinion that it will. What way so effectual to impair the obligation of a Contract as to defeat the means which the established laws allow for its enforcement? In the eye of a human forum, the essence of the obligation of a Contract consists in the sanctions by which it is carried into execution; by which, as between Debtor & Creditor, the former can obtain a satisfaction, whether by exertion of the person or property of the Debtor.
This difficulty out of the Way I should feel no great objection to a law like the following—
Providing that after a Debtor shall have been imprisonned by his Creditor upon execution for a term of five years, it shall be in the discretion of Commissioners to examine into the circumstances of the case, and to liberate the Debtor from imprisonment, upon the condition however of a surrender of all the property he has & leaving all he may acquire afterwards to be subject to the demands of his Creditors—in order to which the Debtor to account every five years on oath before the Commissioners for whatever surplus he may have acquired, they to direct what dividend shall be made among the Creditors and to permit him to retain from time to time so much as they may think expedient for carrying on whatever business he may be engaged in having regard to the interest of his Creditors. His Liberty also so long as he shall be called to account to be exempt from execution, the same as before his Insolvency.
The Commissioners to be selected and designated by the Council of Appointment with competent allowances. These may arise from fees.
As to the pretended decision of the Commissioners on the 6th article of the British Treaty4 all I can say is, that it must be from the nature of things, matter of conjecture not of knowlege how far any principle they may have adopted will go in swelling the sum to be paid—that I have not heared of any decision likely to occasion it to amount to any thing near the sum which you state—that if the Commissioners by misconstruction exceed their authority, the UStates may & will dispute the validity of their decisions & probably by negotiation will rectify them.
It is true indeed that the Commissoners have shewn some disposition to stretch points—but any thing improper will be steadily resisted and it may be hoped with success. All this however is tender ground and must be trodden upon with caution. Eliza joins in love to Mrs. Rensselaer.5 Adieu.
I remain Yr sincere & ob ser
Lt G Rensselaer
ALS, from the original in the New York State Library, Albany.
1. Neither letter has been found.
2. Thomas Trisdale. See the first enclosure to H to James McHenry, August 21, 1798. H’s memorandum has not been found.
3. In August, 1798, the New York Assembly began to debate the bill that eventually became “An Act to amend the Act entitled an Act for the relief of Debtors with respect to the Imprisonment of their Persons” (New York Laws, 22nd Sess., Ch. LXXXV [April 2, 1799]). For the earlier statute, see “An Act for the relief of debtors with respect to the imprisonment of their persons” (New York Laws, 12th Sess., Ch. XXIII [February 13, 1789]). For the debate in the Assembly, see Journal of the Assembly of the State of New-York; 22nd Sess., 17, 20, 31–32, 34, 279.
4. This is a reference to the mixed commission authorized by Article 6 of the Jay Treaty. For the text of Article 6, see “Remarks on the Treaty … between the United States and Great Britain,” July 9–11, 1795, note 13. See also the introductory note to H to George Washington, March 7, 1796; Oliver Wolcott, Jr., to H, August 9, 1798.
5. Margaret (Margarita) Schuyler Van Rensselaer was Elizabeth Hamilton’s sister.