From William Lewis
Philadelphia January 1st. 1791.
In consequence of your Letter of the 12th. of August last, I am about to lay before you the Information which it calls for, so far as I have been able to collect it. As I do not take your meaning to be, that I should confine myself to such matters as I might think exceptionable, I shall mention all such as have fallen within my knowledge, that “May be considered by the British Nation as an infraction of the Treaty,” and submit them, with some remarks of my own to your consideration.—On conversing with the British Consul for the State of Pennsylvania I found, that he was possessed of a printed statement, which had been prepared by a Committee of British Merchants, appointed for the purpose of enumerating the Infractions of which they complained, and I hoped to derive some useful Information from it, but I could not be favoured with a sight of it. Recollecting that he had in March 1788 presented a memorial on the same subject, to the President and supreme executive Council of this Commonwealth, and supposing it to contain so much of the printed Statement as relates to Pennsylvania; I procured a Copy of it, which shall, with some explanatory observations be laid before you. The memorial was transmitted by the President and Council to the Legislature. On the first day of March A.D. 1788, a Committee of the House, appointed in consequence of a Resolution of Congress, made a Report, which was soon after adopted, that having “Examined into the subject matter of that part of the said message, which recommends to the notice of this House the resolution of Congress passed March 21st. 1787, and suggests the propriety of passing a declaratory Act to answer the end intended by the said resolution, they cannot find that there is any act or acts, or any part or parts of any act or Acts, passed by the Legislature of Pennsylvania, now in force, which are repugnant to the treaty of peace between the united States and his Britannic Majesty, or to any articles thereof, or that at all tend to restrain, limit, or in any manner impede, retard or counteract the operation and execution thereof, or to explain the same.”
On receiving your Letter, I sent an extract of so much of it as relates to this business, to the President and Council, and requested to be furnished with Copies of all Proclamations, orders, minutes and Proceedings of Council (if any such there were) which might be supposed by the people of Great-Britain to have been in violation of the Treaty, between that nation and the united States, and I was soon after furnished by them with the following Resolution, to wit,
“Resolved that the Secretary be desired to inform the Attorney of the united States for the District of Pennsylvania, that the supreme executive Council of this Commonwealth, having never been inattentive to any National Engagement, are not informed that any proclamation, order, minute, or proceeding of their Body, has been, or can be in any degree supposed by the people of Great-Britain, to be in violation of the Treaty between that Nation and the United States.”
These Documents shew the Sentiments of the executive and legislative Authorities of Pennsylvania with respect to their observance of the Treaty with Great-Britain, and from what follows, you will be able to form an accurate Judgment thereon. I shall begin with the memorial, and as it relates to matters with which you may not be fully acquainted, I shall endeavour to give the necessary Information respecting them.
The first complaint which it contains is, that the Legislature of Pennsylvania have not passed an act in pursuance of “The recommendatory Resolve of Congress to the different States of the Union, to repeal all Laws repugnant to the Treaty of peace.” Had the Legislature of Pennsylvania conceived the meaning of that Resolution to be, that such repealing Laws should be passed by States in which no repugnant Law existed, and within which such repealing Law could not possibly operate, I am confident that it would have readily been complied with; but as they did not understand it in this Sense, and were informed by their Committee that no such repugnant Act existed in Pennsylvania, they passed no Law in consequence of it.
The memorial admits, that the Report of the Committee “Is founded in the strictest Truth” and that “There is no Law at present existing in this State repugnant to the Treaty of peace,” but adds that “The position must be taken in this qualified Sense, that no Laws exist here which contravene the Treaty of peace, provided the Treaty be the scale by which the Laws are to be construed, and explained; for there certainly are Laws now existing, the construction of which if confined to the mere letter of the Laws themselves, would essentially affect the rights of British Subjects; Whereas by referring to the Treaty to qualify such Laws, no impediment could arise, but every just right might be prosecuted according to the Spirit and Meaning of the Treaty.” If what is here assumed for fact is realy so, the reasoning on it may be just, but if the Instances brought to prove it, have not that effect, and if no others exist, the conclusion cannot be warranted.
The first one mentioned by the Consul is “The present situation of the Bankrupt Laws of this State” which are said “In some Instances to press hard upon the Interest and Security of all foreign Creditors, but they particularly affect the British Creditors by reason of their very extensive Dealings” And that “One essential Inconvenience arises from a late Determination of the Commissioners of Bankruptcy by which they excluded the agents of foreign Merchants from any right to vote in the choice of the assignees of the Bankrupt. But one Instance is here mentioned of the “Bankrupt Laws pressing hard upon the Interest and security of British Creditors” and I cannot possibly immagine another, nor see any weight in this. I do not know that the Creditors of a Bankrupt in England ever had the Right of choosing Assignees under the Laws of that Country, until it was given them by a Statute of the 5th. of George the 2nd. c.30. § 26th. which declares, that this right may be exercised by their Agents or Attornies, whose powers are authenticated in the special manner therein mentioned. No part of the British Bankrupt Laws has ever been held to extend to Pennsylvania, and of course no right could be derived here under this Statute. The first Bankrupt Law that we ever had in Pennsylvania was passed on the 16th. of September 1785. It gave to Commissioners to be appointed by the President or Vice-President of the Supreme executive Council the right of disposing of the Bankrupt’s estate for the benefit of his Creditors, but did not enable the Creditors to choose Assignees. This power was first given them by the 11th. Section of an Act passed on the 15th. of March 1787, and as it makes no mention of their voting by Agents &c. the question referred to by the Consul arose under it. It was further objected to their right of voting, with equal and perhaps greater weight, that admitting the Creditors right of voting by their Agents, the powers of the Agents were in the Instance referred to, which was that of Col: Dean, given for other purposes, and did not extend to this, nor were they authenticated as the Statute of George the 2nd. required. On one or both of these objections the Agents were excluded from voting, and not because the Creditors were British Subjects, for had they belonged to any nation, or to a neighbouring State, or even been Citizens of Pennsylvania, the questions and the Decision must have been precisely the same: so that I am altogether at a loss to conceive, how this can be an Infraction of the Treaty, or have any relation to it.
And I am if possible at a still greater loss to conceive how “The operation of the Laws of Attachment of this State” should have been thought of as an evil to be complained of by the Consul; for he admits the wisdom and justice of our Law as to “Domestic Attachments” as they are called, and that which relates to foreign ones, was passed in the year 1705. It gives the same right to all Creditors, of all denominations and of all Countries, that it does to the Citizens of Pennsylvania, tho’ it must be admitted, that British Creditors, by availing themselves of their early knowledge of the failure of British Merchants who trade to this Country, send here, and attach their property before the failures are generally known, and thereby derive greater advantage from this Law than all the world besides. The Act complained of may be found in pa. 44. of the first volume of Pennsylvania Laws.
“The Settlement of Interest on Debts due to British Merchants antecedent to the late Troubles” is the next matter mentioned by the Consul, and this is said to be “Of considerable consequence to them, and is presumed by him to be of so much Importance as to require some particular legislative Interposition to define its nature and extent.”
[The Legislature of the year 1788, did not think themselves authorized by any principles of sound policy or good Government, to pass a Law to define the nature and extent of Contracts entered into more than a dozen years before and it is reasonable to presume that such a Law would have been complained of as an Infraction of the Treaty. Every person has been left to pursue his remedy at Law, without any particular act being made for the allowance or abatement of Interest, and as the question has altogether depended on the Laws of England, the Consuls acknowledgement that “The Channels of Justice flow with great purity and Impartiality in Pennsylvania, and that the Laws are faithfully and diligently administered” Seems to be a full refutation of his own objection. Since however the objection is so much insisted on, I will take the liberty of mentioning some facts, a knowledge whereof may be necessary to form a Judgment respecting it.
I beleive it is truly stated by the Consul, that “The terms of Contracts between British and American Merchants are for the most part of this sort. Goods are sent hither to be paid for in one year; after which Interest becomes due at the yearly rate of 5 Cent.” This having been a long established usage, it has so far received the sanction of our Courts, as that Interest has been allowed in such cases from the end of the year, but as there is no positive Law for the allowing of Interest on an account; as the claim of Interest by British Merchants from their American Debtors, was founded on this usage alone; and as no Instance had before happened of the Intercourse between the People of Great-Britain and of America being interrupted by War; Our Courts held the Case to be a new one, to which the usage did not extend, and as there was neither Law or usage for allowing Interest during the War; that is from the Battle of Lexington in April 1775 until the provisional Articles between the united States and his Britannic Majesty in November 1782, it has been generally disallowed during that period. If the Debt had been contracted more than a year before the Battle of Lexington, Interest has been allowed, I beleive in all cases, from the time of the Debt becoming due, until the Battle of Lexington, and from the provisional Articles, until the time of payment. The Rule has been reciprocal. It prevailed in a trial in our Supreme Court wherein a Citizen of a neighbouring State was Plaintiff and a British Subject defendant, altho’ the Debt had been contracted long before the War. It has been observed in other Cases, and I very much doubt if a different one has prevailed at Westminster-Hall in actions brought on running Accounts.]1
What is said by the Consul with respect to the Law of Alienage, seems to bear so very little relation to the Treaty, that I should have supposed it to have been mentioned under an Idea, that England ought, as the most favoured Nation to have some exclusive Grant of Priviledges: were it not for the following words contained in the memorial “If the Faith of Treaties enjoins the mutual security of Rights, the justice of this Government will encourage every fit means to effectuate this essential purpose.”—I will only add, that whatever our Law of Alienage may be, we received it from England, with this difference that by an Act entitled “An Act to enable Aliens to purchase and hold real Estates within this Commonwealth”—passed the 11th. Day of February 1789. All Foreigners or Aliens not being the subjects of some sovereign State or Power at War with the United States of America are declared capable until the first day of January Anno Domini 1792 to purchase Lands, Tenements, and Hereditaments within this Commonwealth and to hold the same to them their heirs and assigns for ever.
And with this farther difference, that in Pennsylvania a Mortgage being a mere Security, on which the Remedy is a Scire facias to effect a Sale of the Land for the payment of the Debt, it may be taken by a Foreigner as well as by a Citizen of Pennsylvania and has always been considered as personal Estate.
I am afraid that I have wearied your patience, by paying an over minute attention to this long memorial, which I might perhaps have considered as merely containing Hints for the improvement of our Laws, so as to become peculiarly favourable to the people of Britain, did it not conclude with some observations respecting “National Character and national Justice” And an express Declaration that “The suggestions are built on the broad principles of commutative Justice, and the solemn stipulations of Treaties, applied to the particular objects of the Representation.”
The British Consul considers the 14th. § of an Act entitled “An act for the Attainder of divers Traitors &c.” passed the 6th. of March 17882 and the 4th. § of a Supplement thereto, passed the 29th. of March 1779. as an Infraction of the Treaty. The first of these Acts is in pa. 98 of the 2nd. Vol. of the Pennsylvania Laws, and the Supplement is in pa. 177 of the same Book. The Reasons assigned by him are, if I rightly comprehend them
1. That a British Subject, who has a lawful title to the Lands seised as the property of an attainted Traitor, or who is his Judgment or mortgage Creditor, will be suddenly barred of his right by the opperation of these Sections, if he does not exhibit his claim in the manner therein mentioned.
2. That these sections are calculated to draw the Decision of questions affecting the rights of British Subjects from the proper Tribunals to summary ones, and to subject them to new and unusual modes of Trial.
3. That if a British Subject who is a Creditor of any such attainted Traitor, establishes his claim, he is not under these Acts intitled to payment in gold or silver.
1. I have not heard of any such case as is here mentioned having occurred, nor of facts that can give rise to any thing of the kind; from which I conclude, that they were mentioned as possible cases, under supposed Circumstances.
2. These acts authorized the President or Vice-President (I say authorized, because we have no such officers at present) to call on such offenders only, as should aid the enemy by joining the army &c., to surrender themselves under the Penalty of attainder, and not upon all offenders; and as the Treaty put an end to the War, so it put an end to all attainders under these acts, and consequently no new case can arise.
3. The 8th. Sect. of the Supplement pa. 179. restores the Remedy by Ejectment to all persons, except such as claim by a Title derived under the person attainted.
4. The 10th. Sect. of the Supplement pa. 180. gives the right of Trial by Jury, to all Claimants, so that the course of justice is the same as in other cases.
5th. The 4th. and 5th. Sects. of the Supplement pa. 178. extends the time limited by the 14th. Section pa. 107 of the first Act for exhibiting of claims—And in addition to this, most, if not all Countries have their Laws for limiting the time within which actions shall be brought. They have them in England and we have them here, and I cannot see how a reasonable time limitted by the Legislature for closing all claims on the Person attainted, and bringing the balance into the Treasury, can be a violation of any Treaty; But it is a full answer to the objection
6th. That the British Creditor may still have his remedy by action against the Person attainted, and the reasoning used by the Consul would put an End to all the Laws of Forfeiture, since there cannot be a Doubt, but that the Legislature of any State, might at any time, after the Treaty as well as before, prohibit the Commission of any offence, under the penalty of any particular Sum, or of the Forfeiture of all the offender’s Estate, without making any provision for the payment of his Debts. Of this the English Law affords abundant proof. Hence it appears that these acts, instead of being Infractions of the Treaty, give rights to the British Creditors, which they would not have otherwise had, and leave them the choice of accepting of them or not as they think proper.
These remarks will I hope be excused, since they have arisen from a desire to save you the Trouble of a tedious perusal and consideration of the Several Acts.
Tender Laws as they are called, having given rise to complaints against some or all of the States, it may afford you satisfaction, at the expence of but little trouble, to have a short statement of them, as they have existed in Pennsylvania.
The 2nd. and 3rd. Sects. of an act entitled “An act for making the Continental Bills of Credit, and the Bills of credit emitted by resolves of the late assemblies legal tender, and for other purposes therein mentioned,” passed the 29th. of January 1777. made “The Bills of Credit emitted and made current by the Continental Congress, and the Bills of Credit made current by the Resolves of the late assemblies of Pennsylvania, and certain other Bills therein mentioned[”] a legal tender, under the penalty of forfeiting the Debt by a refusal, pa. 7 of the 2nd. vol. of Pennsylvania Laws.
As this act only mentioned “The Bills of Credit emitted and made Current” it was held not to extend to such bills as were emitted by future Acts of Congress, or of our State Legislature, and therefore subsequent Laws were enacted, declaring them to be a legal Tender, but for want of sufficient accuracy of expression by the Legislature, such subsequent Emissions, were for the most part only made a legal tender for the purpose of stopping Interest, and not of forfeiting the Debt by a Refusal. It is not necessary to refer you to the several Acts, nor to some others that were afterwards made to suspend their operation: For a Law passed on the 21st. of June 1781 repealing “So much of all the Laws of this Commonwealth as declare all or any of the above mentioned Bills of Credit a legal tender, or as impose any forfeiture for refusing to take them[”]—2. vol. State Laws 493.
Should it appear to you, on comparing the 6th. Sect. of the Act of the 29th. of January 1777 with the 2nd. Section of that of the 21st. of June 1781. that the latter does not repeal the former, and of course that the legal Exchange between Great-Britain and America remains as it was fixed by the first Act, at 155 Cent, I answer that a solemn determination to the contrary took place several years ago in our Supreme Court, since which, the Judges have refused to let the question be argued, and the exchange has been regulated, both in and out of Court by the current price of Bills. I mention this, because there may perhaps appear to be some grounds for a contrary opinion.
On the 16th. of March 1785 a Law was passed for emitting £150000. in Bills of Credit, but as they were only made receiveable in the payment of Taxes, and of other Debts due to the State, no British Creditor can, or ever could be injured by this Act.
As the acts for emitting Bills of Credit, and making them a Tender for different purposes, are very numerous, I have made this short statement, which gives a full view of all that can be necessary for you to know respecting them.
The following Remarks will shew, the restrictions which have been laid at different periods by acts of the Legislature, on the Recovery of Debts.
The 6th. 7th. 8th. and 9th. Sections of the abovementioned Act of the 21st. of June 1781 Entitled “An act for the repeal of so much of the Laws of this Commonwealth as make the Continental Bills of Credit &c a legal tender” &c, restrain under the Limitations therein mentioned, the issuing of Executions for the principle of any Debt, until two years from the passing of the said Act. 2 Vol State Laws 495. 496.
Before the two years had expired, to wit on the 12th. of March 1783, Another Act was passed extending the Restriction for one year longer, that is to say, until the 21st. of June 1784, and from thence until the end of the next sitting of Assembly. 3 Vol of Pennsylvania Laws 138.—There was no Exception in this Act in favour of British Creditors, and as the end of the next sitting of Assembly after the 21st. of June 1784, was on the 24th. of September in the same year, it expired on that day. From that time until the 23rd. of December in the same year, there was no existing Law in Pennsylvania, laying any restraint on the Recovery of any Debts whatever, but on the last mentioned Day, another Law was enacted respecting Debts contracted before the 1st. Day of January 1777, and subjecting the Recovery thereof to considerable Restraints, with an exception in favour of all British Creditors, whose Debts had been contracted before the 4th. Day of July Anno Domini 1776.
Hence it appears—
1st. That the impediment to the recovery of all Debts contracted before the 1st. Day of January Anno Domini 1777, created by the act of the 21st. of June 1781, and continued by that of the 12th. of March 1783. continued, (if the Treaty did not prevent it) until the 24th. day of September Anno Domini 1784.
2. That a new impediment (if the Treaty did not prevent it) was created by the Act of the 23rd. of December Anno Domini 1784, to the Recovery by British Creditors of their Debts contracted between the 4th. Day of July Anno Domini 1776. and the 1st. Day of January 1777, which continued until the 23rd. of December 1787–3 Vol Penna. Laws pa. 412.
As commerce between England and Pennsylvania had ceased before the 4th. Day of July 1776; it can hardly be supposed, that any such Debts as are last mentioned, were contracted between that period and the first Day of January 1777. Of course there could not have been any Impediment to the recovery of them and I am confident that no such Case ever occurred.
Whether British Creditors ever met with any Impediment under the act of the 21st. of June 1781, or that of the 12th. of March 1783 in the recovery of their Debts, I will not undertake to say. I was in full practice at the Bar during the Continuance of both these acts, and recollect no Instance of the kind, so that it is not likely that the Court was ever called upon to determine whether they or the treaty should prevail. In other cases, [the Judges have uniformly and without hesitation declared in favor of the Treaty, on the Ground of its being the Supreme Law of the Land. On this ground, they have not only discharged attainted Traitors from Arrests but have frequently declared that they were entitled by the Treaty to Protection.]3
I do not know whether I have answered your views or not. My object has been, on the one hand to avoid reasoning on general principles, and on the other to enable you to avail yourself of any local knowledge which I may possess. I beleive that I have omitted nothing which can be “Considered by the British Nation as an Infraction of the Treaty.”
Should any further Information be thought necessary, I shall be happy in having an opportunity to communicate it.
[I am with the highest Esteem Yr. Mo: Obt. & very Hble. Servt.
RC (DNA: RG 59, MLR); endorsed by TJ as received 3 Jan. 1791 and so recorded in SJL. FC of Extracts (DNA: RG 59, SDR); in clerk’s hand, consisting of three extracts (see notes 1 and 3), over the first of which is this caption: “No. 60. Extract of a letter of March 15th. 1788. from the British Consul at Philadelphia, to the Governor of Pennsylvania” and over the last two of which is the following: “Observations on the preceding Extract by William Lewis, Esqr. Attorney of the district of Pennsylvania for the United States.” These extracts comprise the whole text of enclosure No. 60 in TJ to Hammond, 29 May 1792. For other texts of extracts as set forth in enclosures Nos. 1–60, see notes to that letter.
Despite his elaborate effort, Lewis failed to supply one document central to the purpose of TJ’s inquiry—the resolution of the General Assembly of 3 Mch. 1787, the text of which (enclosure No. 43 in TJ to Hammond, 29 May 1792) he was obliged to obtain from the journals of that body rather than rely upon the partial quotation given above. Congress’ resolution of 21 Mch. 1787 was carefully designed to obviate the kind of action already taken by Pennsylvania. That resolution was based on the explicit assertion that no state could rightfully impede or interpret the terms of the Treaty of Peace as the supreme law of the land. Congress requested each state to pass a general law repealing all statutes held to contravene the treaty, not specifying particular acts by title. The object, of course, was to make such a comprehensive repeal specifically binding upon courts of law and equity (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, 1904–1937, 34 vols. description ends , xxxii, 124–5). In the meager selection from Lewis’ letter that TJ was able to use in his reply to Hammond, the attorney did point out that Pennsylvania courts had recognized the supremacy of the treaty.
1. Matter in brackets (supplied) is the whole of the first extract indicated in note above.
2. Thus in MS, an error for 1778.
3. Matter in brackets (supplied) is the whole of the last two extracts indicated in note above.