From George Hammond
Philadelphia 5th March 1792
In conformity to the mode, which you have pursued and suggested, I have now the honor of submitting to you an abstract of such particular acts of the United States, as appear to me infractions, on their part, of the definitive treaty of peace concluded between the King my master and the United States. The necessity of collecting from distant parts of this continent the requisite materials, of combining and arranging them has occasioned a much longer delay in presenting to you this abstract than I at first apprehended: I trust however that it will be found so comprehensive as to include every cause of complaint, resulting from the treaty, and so fully substantiated as to require no subsequent elucidations to prove and to confirm the facts which I shall specify.
Many of the legislative acts and judicial determinations, which I shall adduce as violations of the treaty, having been common to a majority of the states, I have thought it expedient, in order to avoid repetitions, not to discuss the tendency and extent of their operation in the several states distinctly and separately, but to reduce the infractions under general heads, and to throw into the form of an appendix references to justify and explain the documents by which they are authenticated.
Although I have employed every exertion in my power to acquire the most accurate and general information upon the respective points, comprehended in this abstract, it is still possible, that many materials may have been out of my reach, or that, in the extensive collection of laws and of other documents which I have been obliged to peruse and digest many objects may have escaped my notice. It is possible that acts of the states, of which I have complained, as militating against the treaty of peace, may have been repealed or modified by succeeding legislatures; and that decisions of the State Courts, which I have alleged as violations of the treaty, may have been rectified by subsequent determinations. I am not conscious of any errors or misrepresentations of this nature; but if any such should exist in the abstract, I desire you, Sir, to be persuaded that they have been totally unintentional on my part, and that I shall be extremely solicitous to have them explained and corrected.
Immediately after the ratification of the definitive treaty of Peace, the Congress of the United States by a proclamation, announcing that event, and by a resolve dated 14 January 1784, required and enjoined all bodies of magistracy, legislative, executive and judiciary, to carry into effect the definitive articles, and every Clause and sentence thereof, sincerely, strictly and completely—and earnestly recommended to the legislatures of the respective States, to provide for the restitution of all Estates, Rights and Properties confiscated, belonging to real British Subjects, and of Estates, rights and properties of persons resident in districts in possession of his Majesty’s arms between 30th November 1782 and 14th January 1784 who had not borne arms against the United States; and that persons of any other description should have liberty to go to any part of the United States, to remain twelve months, unmolested in their endeavors to obtain the restitution of their Estates, rights and properties confiscated. It was also recommended to the several states to reconsider and revise all laws regarding the premises, so as to render them perfectly consistent with justice and that spirit of conciliation, which, on the return of the blessings of Peace, should universally prevail—and it was farther recommended that the Estates, rights and properties of such last mentioned persons should be restored to them, they refunding the bonâ fide price, paid on purchasing any of the said lands, rights and properties, since the Confiscation.
In consequence of the little attention which had been manifested to this proclamation and recommendation, and of the answer given (20th February 1786) by the Marquis of Carmarthen to the requisitions of Mr. Adams, respecting the posts and territories ceded by the treaty of Peace to the United States, the Congress transmitted, in April 1787, a circular letter, to the Governors of the respective States, recommending it to the different legislatures to repeal such acts, or parts of acts, as were repugnant to the Treaty of Peace between his Britannic Majesty and the United States or any article thereof, and that the Courts of Law and Equity should be directed and required, in all Causes and Questions cognizable by them respectively, and arising from or touching the said Treaty, to decide and adjudge according to the Tenor, true intent and meaning of the Same, any thing in the said acts or parts of Acts to the contrary thereof in any wise notwithstanding.
In this circular letter, after inforcing in the most energetic manner, the regard due to solemn national compacts and the impropriety of the individual states attempting to contravene, or even discuss, stipulations, which had been sanctioned by their general government, the Congress farther declare, “they have deliberately and dispassionately examined and considered the several facts and matters urged by Great Britain, as infractions of the Treaty of Peace on the part of America; and regret that, in some of the States, too little attention appears to have been paid to the public faith pledged by the Treaty.”
It is observable that Congress, neither in this proclamation nor recommendation, take any notice of the fourth article of the Treaty of Peace, by which it was agreed, that Creditors on either side should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bonâ fide debts, theretofore contracted; nor does either the proclamation or recommendation extend to the stipulations in the close of the fifth article, whereby it was agreed that all persons who have any interests in confiscated lands either by debts, marriage settlements, or otherwise, should meet with no lawful impediment in the prosecution of their just rights.
This omission of these essential points can only be ascribed to the conviction that Congress entertained that it was totally unnecessary to specify them, as they were stipulations positive and obligatory upon the individual states, and that no local regulation was competent either to confirm or invalidate them. It does not however appear that this proclamation and recommendation had any general and extensive effect upon the legislatures of the respective States, as, in consequence thereof, even the formality of a municipal adoption of the Treaty, either in the nature of a repeal of existing laws, repugnant to the Treaty of Peace, or of a declaratory law, establishing the Treaty of Peace as the supreme law of the land, seems to have been confined to a small portion of the several states.
Having thus stated the measures pursued by Congress to give validity and effect to the engagements contained in the treaty of peace, it is now expedient to specify, in detail, the particular acts, which Great Britain considers as infractions of the treaty, on the part of the United States, and it will tend to simplify the discussion to make the following arrangement.
Ist. To define what Congress has enforced or omitted.
IInd. To advert to the conduct observed by the individual States generally, in respect to the Treaty of Peace,
In not repealing laws that existed antecedently to the Pacification,
In enacting laws subsequent to the peace in contravention of the Treaty,
And in the decisions of the State Courts upon questions, affecting the rights of British Subjects.
As to the first of these points, it cannot be presumed that the Commissioners, who negotiated the Treaty of Peace, would engage in behalf of Congress, to make recommendations to the legislatures of the respective States, which they did not expect to be effectual, or enter into direct stipulations, which they had not the power to enforce: And yet the laws were not repealed which Congress recommended to be repealed; nor were the stipulations enforced, which Congress was absolutely pledged to fulfil. It does not appear that any of the State Legislatures repealed their Confiscation Laws, or provided for the restitution of all estates, rights and properties of real British Subjects, which had been confiscated, and of persons resident in districts in the possession of his Majesty’s arms, who had not borne arms against the United States—that persons of other descriptions, were at liberty to remain twelve months in the United States unmolested in their Endeavors to obtain the restoration of their confiscated Estates, Rights and properties—that the acts of the several states, which respected Confiscations, were in many of the states reconsidered or revised—nor finally, have British Creditors been countenanced or supported either by the respective legislatures, or by the State Courts, in their endeavors to recover the full value of debts, contracted antecedently to the Treaty of Peace. On the contrary in some of the States the Confiscation laws have been acted upon since the Peace, and new legislative Regulations have been established to carry them into effect. In many of the States, the subjects of the Crown, in endeavoring to obtain the restitution of their forfeited Estates and property, upon refunding the price to the purchasers, have been treated with indignity, menaced, exposed to personal danger, and in some instances imprisoned. Prosecutions have been commenced against his Majesty’s Subjects, for the part, which they had taken in the late war. In many of the States, laws have actually passed, delaying the legal investigation of just claims, and abridging the demands of British Merchants. Local Regulations, in respect to the tender of property, in discharge of just debts, have prevailed to such an extent as to amount to a prohibition of suits. Paper money, emitted by particular states, has been made at its nominal value, legal tender and payment for all debts, for the recovery of which actions were commenced at the time, when money of that description was greatly depreciated. Creditors too, in some of the States, were exposed to the necessity of taking real or personal property at a valuation made by a partial, prejudiced or interested neighbourhood, while in other States, when the question of alienage has been under discussion, the Courts of Law and Equity have determined that a subject of Great Britain residing within the King’s dominions, at and after the declaration of Independence, was not competent to acquire or hold real property within the United States. In many of the State Courts, decisions have taken place, reducing the amount of British debts, in violation of the terms of the original Contracts, and some of those Courts have positively refused to take cognizance of suits instituted for the recovery of British debts. These facts will be more fully illustrated under the next head of arrangement.
IInd. To advert to the conduct observed by the individual States, generally, in respect to the Treaty of Peace.
1st. In not repealing the laws that existed antecedently to the Pacification.
During the war the respective legislatures º of the United States passed laws º to confiscate and sell, to sequester, take possession of, and lease, the Estates of the Loyalists, and to apply the proceeds thereof towards the redemption of Certificates and Bills of Credit, or towards defraying the expences of the war—to enable Debtors to pay into the State Treasuries or Loan Offices paper money then exceedingly depreciated, in discharge of their debts. Under some of the laws, many individuals were attainted by name, others were banished for ever from the Country, and, if found within the state, declared felons without benefit of Clergy. In some States, the Estates and rights of married women, of widows and of minors, and of persons, who had died within the territories possessed by the British arms, were forfeited. Authority also was given to the executive department to require persons who adhered to the Crown, to surrender themselves by a given day and to abide their trials for High Treason; in failure of which the parties so required were attainted, were subject to, and suffered all the pains, penalties and forfeitures awarded against persons attainted of High Treason. In one State (New York) a power was vested in the Courts to prefer Bills of Indictment against Persons alive or dead, who had adhered to the King, or joined his fleets or armies (if in full life and generally reputed to hold or claim, or, if dead, to have held or claimed, at the time of their decease, real or personal Estate)—And upon notice or neglect to appear and traverse the Indictment, or, upon trial and conviction, the persons charged in the Indictment, whether in full life or deceased, were respectively declared guilty of the offences charged, and their Estates were forfeited, whether in possession, reversion or remainder. In some of the States confiscated property º was applied to the purposes of public buildings and improvements, in others º was appropriated as rewards to individuals for military services rendered during the war, and in one instance Property mortgaged º to a British Creditor was liberated from the incumbrance by a special act of the legislature, as a provision for the representatives of the mortgager who had fallen in battle.
A general repeal of these laws, under the stipulated exceptions, would have been a compliance with the terms of the Treaty of Peace. But the restitution of the Estates, rights and properties, of real British Subjects, or of persons resident in districts in possession of his Majesty’s arms, and who had not borne arms against the United States, was not provided for by any local law or general regulation, nor did any such law or regulation prevail to support persons of other descriptions in their endeavors to obtain the restitution of such of their Estates, rights and properties as had been confiscated. Some of the State legislatures, it is true, soon after the Peace, passed Acts, in conformity to the Treaty, to provide against farther Confiscations, and to deliver up, under certain conditions and assessments, such lands and tenements, the property of persons described in Confiscation Laws, as had not been confiscated by process of law. Other States have, in certain instances, upon application of the children or friends of attainted Persons, passed laws to restore the ownership of forfeited Estates, upon the payment of a given price in depreciated Certificates, and, in others, without exacting any consideration for the property restored. Acts of Pardon and Oblivion are also to be found in the Statute Book of some of the States, but fettered with such qualifications, exceptions and restraints, as to exclude effectually from the hope of recovery or restitution numbers who were expressly within the meaning and intention of the treaty.
2nd. In enacting laws subsequent to the Peace in contravention of the Treaty.
In stating the particular acts that relate to this head of arrangement, it will be proper to place them in three classes.
- 1. Such as relate to the Estates of the Loyalists;
- 2. Such as respect their persons; and lastly,
- 3. Such as obstruct the recovery of debts due to the subjects of the Crown.
1. Many of the confiscated Estates being undisposed of, not only at the time the preliminary articles of peace were signed, but even after the conclusion of the definitive Treaty, it would have been perfectly consistent with Justice, and that spirit of conciliation, which ought to have prevailed upon the return of the blessings of Peace, to have suspended the sales of property not then disposed of, to have repealed the laws of confiscation, under certain limitations, and to have restored the rights of married women, of widows and of minors: and though the policy of the different State Governments might exact a rigid adherence to forfeitures incurred by persons who had actually borne arms during the war, yet such a suspension of sales, repeal of laws and restitution of property might have been effected with great convenience in a number of instances, and might have been liberally extended to real British Subjects, and to persons, who had not borne arms against the United States, but who from local residence were liable to the imputation of offence and to the operation of severe penal laws.
But immediately after the preliminary articles were signed, and for manyº years subsequent to the peace, acts passed the different legislatures º of the United States—to confirm forfeitures and confiscations made by virtue of former laws º—to secure in their possessions persons who had purchased forfeited lands, tenements, goods and chattels—to sell confiscated property º that remained unsold—to resell such as had been already sold,º and to which no title had been given—and to release º from their bargains persons who had misconceived the modes of payment.º In one State (Georgia) many years subsequent to the Peace, an act passed, to compel, under severe penalties, the discovery of debts due to merchants and subjects of the Crown of Great Britain, that had been sequestered by particular regulations. Under this act the Auditor of that state has published a formal notice, manifesting his determination to pursue the rigid letter of the law, and to sequester British debts, in º defiance of the solemnity of national engagements. In another State (Maryland) offers have even been held out by legislative authority to persons who, within limited periods, should make discovery of British property, to compound for the same by granting certain portions of such as should be discovered: And these legislative acts extended to forfeited rights and property, generally, without discrimination or distinctions of persons plainly defined in the treaty; distinctions which the spirit of conciliation and the feelings of humanity most forcibly recommended, and which the respective States were fully competent to establish and enforce, when applied to estates and property, either unsold at the period of the peace, or for which (owing to the default of the purchasers) no titles had been given.
2nd. In respect to the persons who under the Treaty of Peace were to have free liberty to come to any part of the United States, the permission in their favor was in terms the most general and unqualified; and though the period, in which persons of one description were to remain in this Country, was restricted, none, however exceptionable their political Conduct might have been considered by the United States, were debarred from the means, of personal application, and of endeavoring to obtain the restitution of such of their estates, rights and properties as had been confiscated. As to those who, under the appellation of British Subjects had incurred no other imputation of criminality than that of adherence to their Sovereign, and as to others, who, though resident in districts in possession of his Majesty’s forces, had not borne arms against the United States, the express provision in the treaty for the restitution of the Estates and properties of persons of both these descriptions certainly comprehended a virtual acquiescence in their right to reside, where their property was situated, and to be restored to the privileges of Citizenship: This virtual acquiescence may be justly assumed as an argument in favor even of those, who had borne arms against the United States, and who (if any instances of this kind existed) had been successful in their endeavors to obtain the restoration of their confiscated Estates on refunding to the purchasers the bonâ fide price that had been paid. Acts however of proscription, attainder and banishment, which had passed during the war, and which extended not only to those who had borne arms against the United States, but also to those who had borne arms against their allies; to personsº who had left particular states and gone off with the fleets or armies of Great Britain—to those º who had attached themselves to, adhered to, or taken the protection of the government, fleets or armies of Great Britain; who were and still remained absent from the states; who had withdrawn themselves from and still resided beyond the limits of the United States—though repealed as to certain individuals therein named, remained in full force against numbers of every description of persons defined in the Treaty. And subsequent to the Peace, Acts passed several of the State Legislatures º for the purpose of asserting the rights of the States, º for preserving their independence, and expelling such aliens º as might be dangerous to the peace and good order of government, whereby persons who had left the States, gone off º to or taken the protection of the government, fleet or armies of Great Britain, or aided, assisted or abetted the same, or had borne arms,º exercised or accepted military commands, or owned or fitted out armed vessels to cruize against the United States or their allies, or had been joined to the fleets or armies, or to any volunteer corps of the King, or had held any office at particular boards instituted during the war—and all other absentees named in divers acts º of confiscation, or who had been banished, or sent out of the States, were forbidden to return without licence º at their peril, or were subject to disqualifications, to prosecution and tedious imprisonment, if they remained after notice º given to depart the State. In some States the ceremony of notice was dispensed with, and the parties upon being found therein were liable to imprisonment, to the confiscation of the property they possessed,º and in other States to the penalty of death. In some of the States, it is true, permission was given to certain individuals to return unconditionally but in others º the indulgence was of momentary duration, and the unfortunate objects of it were then banished from their Connections and friends for ever.
To this it may be added that though the Treaty of peace expressly declares that no future confiscations shall be made nor any prosecutions commenced against any persons for or by reason of the part which they might have taken during the war, confiscation actsº have passed since the preliminary articles were signed, and sales have been made of confiscated Estates long since the Peace; Acts have also passed for granting effectual relief in casesº of trespasses, and pointing out modes for the recovery of property acquired while the King’s troops occupied particular districts, whereby it was made lawful for any inhabitants of the State, who had left their places of abode, and had not since voluntarily put themselves into the power of the King’s troops, to bring actions of trespass against any person who had occupied, injured or destroyed their Estate either real or personal within the power of the King’s troops, or against persons who had received or purchased such goods or effects; and the purchasers of property, under sales made in districts occupied by the Royal Army, were required to restore and deliver up the same under the penalty º of forfeiting treble the value of such property, so obtained, and neglected to be delivered or restored; to the great inconvenience of many who had used, possessed, or acquired real and personal property, under the sanction of the only authority existing in the districts wherein the property was situated, an authority justified by the laws and usages of nations, and confirmed by the letter and spirit of the Treaty of Peace. The Persons who were the objects of the Trespass law were still more oppressed by it’s operation, in consequence of a subsequent act º suspending prosecutions for acts done to promote the American cause, which was manifestly levelled at the friends of the Crown, and deprived them of the means of satisfaction for those acts of outrage, which had involved them in loss and ruin. And in order to provide for the enforcement of these Trespass laws º against Absentees, the remedy of attachment against absconding Debtors was extended to the recovery of Damages sustained by the injury, destruction or occupancy of real or personal Estates during the war, whereby Absentees, though in a state of legal exile, were considered as absconding Debtors.
3rd. The securing of the enormous debt due from the Citizens of the United States to the merchants of Great Britain, being an object of important consideration to his Majesty’s Government in arranging and discussing the terms of the Treaty of Peace, was expressly provided for in it; though stipulations of that nature are not usual in treaties between independent nations: as the engagements of individuals of different countries are not liable to the intervention of partial local regulations, but rest upon the sacred and permanent basis of universal justice. The magnitude of this object cannot therefore be better ascertained than by this circumstance and accordingly a solemn and unequivocal stipulation was introduced into the Treaty, “that Creditors, on either side, should meet with no lawful impediment to the recovery of the full value in sterling money of all bonâ fide debts heretofore contracted”; a stipulation as precise and definite as to the measure and mode of recovery and payment, as it was general and unqualified in respect to the debts to be recovered. “The full value in sterling money” could only mean the value, to be ascertained by the nature and terms of the original contract between Debtor and Creditor, and to be paid in sterling money, according to the rate of exchange prevailing between the two Countries. “All bonâ fide debts heretofore contracted” comprehended every species of debt, due to the Creditors on either side, contracted antecedent to, and which remained unpaid at, the period of concluding the Treaty of Peace.
Hithertò Great Britain has anxiously, though in vain, expected from the United States the fulfilment of this articleº in behalf of her suffering merchants: But prohibitions of suits and personal disabilities,º created during the war, to commence actions remained unrepealed and have been protracted to periods subsequent to the peace. Acts º too have passed º since the peace suspending for a time the recovery of debts and the issuing of executions. Courts have been authorized by law to direct and admit the reduction of interest; º and the absolute reduction of interest for a limited number of years has been provided for. Laws º which º existed before the war, compelling Creditors to take the debtor’s land at an appraised value, remained unrepealed, notwithstanding the change of circumstances º in the two Countries had, in some of the State Courts, tended to establish principles of alienage which have been carried to so rigorous an extent, applied to British Subjects, as to inspire doubts of their competency to acquire or hold real property within the United States. New tender and valuation Laws º have been passed subsequent to the Peace, by the operation of which Creditors were reduced to the alternative, º either of accepting under partial appraisements resulting from prescribed modes º of valuation real and personal property which bore no proportion to the value of the original debt, and for which they could command no price whatsoever; or of having the persons of their Debtors protected from Arrests or discharged from executions. º British Subjects and their agents were compelled to give security to pay all just debts due from the Creditors to any citizen of the state, as far as the amount of the debts to be collected, before any debtor º could be compelled to make payment. Paper money emitted and made current for a number of years was constituted legal tender for payment and discharge of any debt, bargain or sale, bond, mortgage, specialty or contract whatsoever “already made or hereafter to be made” either for sterling money, silver money, dollars or any species º of gold or silver. Instalment laws º have passed restraining for a time the commencement of suits and then limiting the modes of recovering all debts due previous to the month of February 1782, and of obligations taken since that time for debts previously incurred, to three annual payments of one third of the principal and interest in each successive year:º These restrictions and limitations were afterwards extended to all debts contracted previous to the 1st January 1787; and when these limitations, in which the British merchants most patiently and benevolently acquiesced, were about to expire, a new Instalment Law º was passed, protracting the period of payments five years longer and restraining the recovery even of bonds or notes, given payable according to the instalment prescribed by the former acts, to the manner directed in the last Instalment law.
It is worthy of observation that this latter Instalment Law passed subsequent to the formation of the federal Constitution, which ordains that all Treaties, made, or which should be made, under the authority of the United States, should be the supreme law of the land, and that the Judges in each state, should be bound thereby and every Senator and Representative of the United States, members of the several State legislatures, and all executive and judicial officers both of the United States and of the several states, were to be bound by Oath or Affirmation to support that Constitution.
3rd. The last point of discussion relates to the decisions of State Courts upon questions affecting the rights of British Subjects; in respect to which the dispensations of law have for the most part, been as unpropitious to the subjects of the Crown as the legislative acts of the different Assemblies throughout this continent: It must however be allowed that in one State (Massachusetts Bay) where great property was at stake, Justice has been liberally dispensed, and, notwithstanding a particular regulation of the State warranted the deduction of that portion of the interest on British debts which accrued during the war, the Courts, in conformity to the plain terms of the Treaty, have admitted and directed the Quantum of the demand to be regulated by the original Contract; and where the Contract bore interest, or the custom of the trade justified the charge, the full interest has been allowed to British Creditors, notwithstanding the intervention of war. On the other hand it is to be lamented, that in a more distant state (Georgia) it was a received Principle, inculcated by an opinion of the highest judicial authority there, that as no legislative act of the state existed, confirming the treaty of peace with Great Britain, war still continued between the two countries; a principle which may perhaps still continue in that state, as it is one of those that have not to this moment, paid any municipal regard to the different recommendations of Congress to the several legislatures, to repeal all laws inconsistent with the Treaty of Peace.
The decisions of the State Courts having affected the claims and persons of British Subjects, a short view will be taken of some of the most important decisions, under these two heads.
1st. In the prosecution of claims, instituted by British merchants for debts contracted previous to the war, proof of the usage of the Trade to allow interest after the expiration of a year on the amount of the goods shipped, or of the specific contract between the Debtor and Creditor has been uniformly establshed; the full value of the debt, to be recovered, ought consequently to have been nothing short of the debt and interest according to the usage of the trade or to the termsº of the Contract: º But under the direction of many of the Courts, Juries have invariably abated interest on the British debts for seven years and a half. Even the solemnity of obligations º has not been found of sufficient force to secure the Creditor from this deduction, it having been determined that obligations, which on the face of the Contract itself bore interest, were upon no better footing in this respect than Book Debts, in which the intervention of war and the prohibitory resolves of Congress were deemed sufficient Grounds to destroy the usage between the British and American Trader, by abating the interest for the period the war continued; and that as the Debtor was deprived of the means of making payment, unless by a violation of a positive restrictive law, prohibiting remittances as a means of strengthening the enemy, and as it would have been criminal to have remitted during the war, no man should suffer for his obedience to the laws, or be answerable for the interest while the laws of the land restrained him from remitting the principal. The treaty of Peace too has been considered as having no effect upon this question, it having been held that the Treaty only secured the mutual recovery of debts, when the amount was ascertained; but the amount of the debts was to be settled by the laws of the land.
In one state particularly, in which the claim of interestº has been generally involved in the recovery of British debts, that had been paid in consequence of legislative acts into the State Treasury, the superior Court of the State determined, that the construction of the Treaty and the acts of the State intitled the Creditor to recover the principal of his debt and all interest thereon, which had not arisen during the war, and that as by the intervention of war the means of recovering British debts were suspended, the claim of interest during the suspension, was inadmissible. It was admitted that notwithstanding the payments into the Treasury the Treaty of Peace restored the right of action; but interest was recoverable only from the date of the definitive Treaty.
In one of the Southern States (Virginia) where debts to a very considerable amount are depending, the suits, that have been instituted for their recovery, have been referred to the district Courts of the State, and some of the Causes having stood for several years under a mere formal continuance upon the records have been adjourned, for difficulty, to the General Court, wherein they still remain undecided, and others, it is said, have been actually dismissed. The delay of Justice, operating equallyº as a denial of Justice, would have been effectually reformed in that State by the provisions of a particular law giving summary relief in determining disputes wherein Subjects of those Countries, which had acknowledged or should hereafter recognize the independence of the United States, were parties against the Citizens of that state; but unfortunately for the British Creditors, upon the conclusion of Peace, it was soon found that this summary relief extended to British debts in common with the claims of other foreigners whose Sovereigns had recognized the independence of the United States, and that some of the Judges favored the idea; and so much of the act as points out and authorizes the mode of proceeding in suits wherein foreigners were º parties, was repealed, and at this moment the means of recovery depend solely upon limitations and conditions º created by local regulations, which are in direct opposition to the recommendatory resolves of Congress and palpable infractions of the fourth article of the Treaty of Peace.
The few attempts to recover British debts in the County Courts of that State have universally failed; and these are the Courts wherein from the smallness of the sum, a considerable number of debts can only be recovered.
A farther hardship, under which the British Creditors labor, is that they are answerable and proceeded against by Course of Law for every claim brought against them; when at this moment it is not a settled point whether even the federal Court, in that district, will entertain, in their behalf, suits to which that Jurisdiction is competent, the Circuit Court of the United States, after very solemn argument, having adjourned the Question.
In addition to these observations it is necessary to mention, that in some others of the Southern States, there does not exist a single instance of the recovery of a British Debt in their Courts, though so many years have expired since the establishment of Peace between the two Countries.
2nd. The proceedings of the State Courts upon points, which affected the persons of British Subjects have been equally repugnant to the Terms of the Treaty. In one State suits have been instituted under the actsº for granting a more effectual relief in cases of certain trespasses, for the recovery of damages resulting from the occupancy of estates, held in districts in the possession of his Majesty’s arms, by virtue of licence and permission from the Commanders in Chief; and though the licence and permission were pleaded, and it was stated upon the record that after the declaration of independence by Congress, there was open war between the two Countries—that the place where the Estates were situate continued in the uninterrupted Possession of the Royal Army during the whole period they were occupied under such licence and permission, and as long as the same remained in force—that by the Treaty of Peace the claim which the subjects or citizens of either of the contracting Parties had to recompence or retribution for injuries done to each other in consequence of or relating to the war, were mutually relinquished and released—that the Parties, against whom the suits were instituted, were subjects of the Crown, residing in a district occupied by the Royal Army, where the Estate in question was situate, under the protection of the King then at war with this Country: These Pleas were overruled by the Court as insufficient, and Damages have been awarded against the Parties for the time the Estates were so occupied by them, to the great injury of numbers who had during the war actually paid a competent rent for the property they occupied, under the authority of the Commander in Chief.
In another State an indictment has lately been preferred against aº subject of the Crown for the murder of a citizen of the United States found under suspicious circumstances within the Royal lines. Though the Grand Jury did not find the bill of indictment against the party, as the facts alledged were not sufficiently proved, they postponed a farther inquiry to a future time, to give the prosecutor an opportunity of producing farther testimony, in which the Court acquiesced and refused to discharge the Prisoner, observing when the Counsel moved for his discharge, that the Commission for holding the Court of Oyer and Terminer did not expire for some months, and the Court would again sit before the Period expired. The Prisoner was however admitted to bail upon his own recognizance in £500 and two Sureties in £250 each; but as his friends doubted the disposition of the Court to determine according to the terms of the Treaty, they thought it more prudent to suffer the forfeiture of the recognizances, than to put his life again into jeopardy.
In that state also actions of trespass have been instituted for taking and driving off Cattle during the war, converting indictable offences into civil suits with a view of eluding the stipulations of the Treaty; but with what success has not been ascertained.
Upon this last head of arrangement, it is only necessary farther to observe that the prosecutions in the cases specified are all direct and positive violations of the sixth article of the Treaty of Peace.
From the foregoing detail it is evident—that the recommendations of Congress to the respective State-legislatures have in some of the states been totally disregarded, and in none have produced that complete and extensive effect which Great Britain, from the stipulations of the Treaty, was perfectly justifiable in expecting and requiring—that, since the Peace, many of the States have passed laws in direct contravention of the definitive treaty, and essentially injurious to the estates, rights and properties of British Subjects, in whose favor precise distinctions were clearly defined and expressed in the treaty—that although some of the States may have repealed their exceptionable laws partially or generally, yet in a majority of the states they still exist in full force and validity—and that in some of the State Courts actions have been commenced and prosecuted with success against individuals for the part they had taken in the war; which actions were in their origin positive contraventions of the sixth article of the treaty, and in their consequences materially detrimental to the rights and property of many subjects of the Crown of Great Britain.
In consequence of the violation of the treaty in these particulars, great numbers of his Majesty’s subjects have been reduced to a state of penury and distress, and the nation of Great Britain has been involved in the payment to them of no less a sum than four millions sterling, as a partial compensation for the losses they had sustained.
It is farther manifest that the stipulation in the fourth article of the treaty, which provides for the recovery of the debts due to the subjects of the two Countries respectively, has been not only evaded in many of the states, but that municipal regulations have been established in them in avowed contravention of it—and that in many instances the means and prospect of obtaining redress are nearly as remote as ever. Since in one State, in which a Sum far exceeding one million sterling is still due to British Creditors, the supreme federal Court has thought proper to suspend for many months the final judgment on an action of debt brought by a British Creditor, and since, in the same State, the County Courts (which alone can take cognizance of debts of a limited amount) have uniformly rejected all suits instituted for the recovery of sums due to the Subjects of the Crown of Great Britain.
The delay, which has arisen in the administration of justice, has with equal propriety been stated as equivalent to an infraction of the treaty: For by the effect of that delay many descriptions of his Majesty’s Subjects have been exposed not only to material inconvenience, but in various cases to the ruin and absolute loss of their property.
The conduct of Great Britain in all these respects has been widely different from that which has been observed by the United States. In the former Country, the Legislature has never harboured the intention of enacting regulations, which might invalidate a national compact, or affect the sacred tenor of engagements contracted between individuals. And in the Courts of Law, the Citizens of the United States have experienced without exception the same protection and impartial distribution of justice as the subjects of the Crown. Examples can be adduced of judgment having been given in favor of American Creditors in actions of debt brought even against Loyalists, the whole of whose property had been seized by legislative acts of the States, in which it was situated, and appropriated in the first instance to the liquidation of the very description of debts, for which these suits were commenced against them in England.
Such is the nature of the specific facts, which the King my master has considered as infractions of the Treaty on the part of the United States, and in consequence of which his Majesty has deemed it expedient to suspend the full execution on his part of the seventh article of that treaty. On this head also it is necessary to premise the following evident distinction—that the King has contented himself with a mere suspension of that article of the treaty, whereas the United States have not only withheld from subjects of the Crown that redress to which they were entitled under the terms of the treaty, but also many of the States have, subsequent to the peace, passed new legislative regulations, in violation of the treaty, and imposing additional hardships on individuals, whom the national faith of the United States was pledged, under precise and solemn stipulations, to insure and protect from future injury.
On the grounds therefore of the irreparable injury, which many classes of his subjects have sustained, and of the heavy expence to which the British nation has been subjected by the non-performance of their engagements on the part of the United States, the measure that the King has adopted (of delaying his compliance with the seventh article of the treaty) is perfectly justifiable. Nevertheless his Majesty’s sincere desire to remove every occasion of misunderstanding has induced him to direct me to express his readiness, to enter into a negociation with respect to those articles of the treaty, which have not been executed by the two Countries respectively; and to consent to such arrangements upon the subject, as, after due examination, may now be found to be of mutual convenience and not inconsistent with the just claims and rights of his subjects.—I have the honor to be, with sincere respect and esteem, Sir, Your most obedient and most humble servant,
RC (DNA: RG 59, NL); in a clerk’s hand except for signature; endorsed by TJ as received 5 Mch. 1792 and so recorded in SJL. Tr (same). FC (DNA: RG 59, SDR). PrC of another Tr (DLC).
The British minister’s letter faithfully reflected his government’s longstanding position that American infractions of Articles iv, v, and vi of the Treaty of Paris justified British retention of the eight frontier posts on American soil that were supposed to have been evacuated under the terms of Article vii of that agreement (see notes to TJ to Hammond, 29 May 1792). Hammond had come to the United States in October 1791 with instructions to discuss these infractions with American government officials and to assure them that, in return for American compliance with the first three disputed articles, Britain was prepared to offer “some practicable and reasonable Arrangement on the Subject of the Posts” (Grenville to Hammond, 2 Sep. 1791, Mayo, British Ministers description begins Bernard Mayo, ed., “Instructions to the British Ministers to the United States 1791-1812,” American Historical Association, Annual Report, 1936 description ends , p. 14–15). Unfortunately for Hammond, the British government still had not decided as of this date upon the specific conditions under which it would relinquish possession of the posts—hence the calculated ambiguity with which he treated this issue in his letter. Despite his instructions to discuss these issues personally with American officials, the British minister presented his government’s case against the United States in the form of a letter to the Secretary of State as a result of an initiative by TJ. In order to facilitate a diplomatic resolution of the Anglo-American disputes over the peace treaty, TJ decided to confine the first phase of his negotiations on these points with Hammond to written communications, so that later both men could concentrate their attention on settling the major points at issue between the two nations without the intrusion of less significant questions in their deliberations. Accordingly, TJ wrote a letter to Hammond in the middle of December 1791, in which he specified the principal British violations of the peace treaty and invited Hammond to respond with a written statement of American infractions of this agreement. Hammond readily consented to this mode of negotiation because, as he pointed out to the British foreign secretary, it “precludes any doubt of our respective meaning, and enables me to submit every particular to your Lordship’s consideration” (TJ to Hammond, 15 Dec. 1791; Hammond to Grenville, 19 Dec. 1791, PRO: FO 4/11). Instead of responding promptly with a relatively brief specification of American treaty violations, as TJ had expected, Hammond spent the next two and a half months compiling a comprehensive statement of British complaints with respect to the treaty. In this endeavor Hammond gathered information about a multitude of state laws and state court decisions that he regarded as contrary to the terms of the treaty from the British consuls and “other respectable persons” in America (Hammond to Grenville, 16 Nov. 1791, 8 June 1792, PRO: FO 4/11; same, 4/15; see also Memoranda of Consultations with the President, 11 Mch.-9 Apr. 1792). He derived most of his material on these subjects from Phineas Bond, the British consul in Philadelphia, who had been especially assiduous in keeping a record of American violations of the treaty (Hammond to Grenville, 6 Mch. 1792, PRO: FO 4/14, DLC photostat; Joanne L. Neel, Phineas Bond: A Study in Anglo-American Relations,1786–1812 [Philadelphia, 1968], chs. vi—viii). But the long delay between TJ’s original specification of British treaty infractions and the submission of Hammond’s counterstatement was not due entirely to the time the British minister spent in gathering supporting evidence for his complaints. Hammond also deliberately refrained from completing this letter and submitting it to TJ for as long as possible in the belief that the failure of Arthur St. Clair’s Indian expedition in November 1791 had made the American government so anxious to gain possession of the western posts, in order to be in a better position to launch a new campaign against the western tribes, that it would be willing to acknowledge the justice of the British position on Articles iv, v, and vi and redress the grievances arising from them in return for the evacuation of these forts. However, further delay became imprudent after TJ, acting at the express wish of Washington, pointedly reminded Hammond at a presidential reception near the end of February that the American government was anxious to receive his statement on the treaty. After delivering this letter to TJ Hammond looked forward with confidence to the prospect of personal negotiations with the Secretary of State because he was convinced that his letter clearly demonstrated beyond “the probability of cavil and contradiction” that Britain’s refusal to evacuate the western posts was a justifiable response to numerous American violations of the provisions of the Treaty of Paris dealing with Loyalists and British creditors (Hammond to Grenville, 6 Mch. 1792, PRO: FO 4/14, DLC photostat; see also Memoranda of Consultations with the President, 11 Mch.-9 Apr. 1792).
In private Hammond was somewhat more sanguine about the chances for British merchants to recover their enormous debt through regular judicial proceedings than he was in this letter to TJ. He believed that if all the states had accepted the implications of the constitutional provision making treaties part of the supreme law of the land, “no other measures would now have been requisite to place the subjects of the Crown (and especially the British Creditors) in the situation, to which they are entitled by the treaty.” But although he detected a marked tendency to comply with this provision among the northern states, as evidenced by several court decisions favorable to British creditors, he found an equally strong disposition to oppose it among the southern states, though he later singled out Virginia as the worst offender (Hammond to Grenville, 6 Mch. 1792, PRO: FO 4/14, DLC photostat; Notes of Conversation with George Hammond, 3 June 1792).
Virginia was the one state referred to and the action of debt was the celebrated case of Jones v. Walker. For an analysis of this case, which hinged on the issue of whether a payment into the Virginia Loan Office under the terms of a 1777 state act discharged a debtor of his obligation to a British creditor, see Charles A. Hobson, “The Recovery of British Debts in the Federal Circuit Court of Virginia, 1790–1797,” VMHB description begins Virginia Magazine of History and Biography, 1893- description ends , xcii (1984), p. 176–200.
Bemis, Jay’s Treaty description begins Samuel Flagg Bemis, Jay’s Treaty: A Study in Commerce and Diplomacy, New Haven, 1962, rev. edn. description ends , p. 134; Malone, Jefferson description begins Dumas Malone, Jefferson and his Time, Boston, 1948-1981, 6 vols. description ends , ii, 412; and Peterson, Jefferson description begins Merrill D. Peterson, Thomas Jefferson and the New Nation, New York, 1970 description ends , p. 452, criticize Hammond for allegedly failing to link the general charges made in the body of this letter with the specific laws and legal decisions cited in the appendices. This misconception arises from the fact that all three scholars used the text of the letter printed in ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States, Washington, Gales & Seaton, 1832–61, 38 vols. description ends , Foreign Relations, i, 192–200, which lacks the marginalia Hammond inserted in the RC to make this very connection.