Edmund Randolph’s Notes on Jefferson’s Letter to George Hammond
[ca. 16 May 1792]
A cursory reading suggests for consideration the following hints.
- ✓ pa. 7. 1. When the just distinction is pressed between the covenanting and recommendatory parts of the treaty, would it be improper to refer to the knowledge, which Mr. Oswald must have had of the confederation, and therefore of its incapacity to warrant our ministers to go farther upon the points recommended?1
- pa. 23. 2. The doctrine of alienage is not free from difficulty. As it existed at common law, it could not exist relatively to those who were formerly members of the same empire: for this disability must be born with a man. It sprang then from the law of nations only. But when a foreigner is permitted to hold lands, and no restriction is connected with the words, giving that licence, is not an enjoyment of them by personal residence a clear consequence?
- pa. 30. 3. The similitude of an act of confiscation to an office found seems correct. But to what species of office? That of intituling; which can hardly be said to give possession without entry. See Buller’s nisi prius on this head. I have not consulted it; not having it with me.2
- pa. 42. 4. Levari facias is said to affect the profits only of lands. But if the profits do not exceed the annual interest, the creditor will become the proprietor for ever, altho’ he will not acquire a freehold.
- ✓ 43. 44. 5. I do not see, that it has been thought fit to reply to Mr. H’s remark on the laws, allowing a tender of property, that this was the same and no other measure, dealt out to the citizens as well as foreigners.3
- 6. There are some positions in the answer, which militate against the attempts, now made by the debtors in Virginia; The most obvious are, that treaties under the confederation were superior to the laws of the states, and that the lawyers in Virginia have so declared. I question the universality of the latter fact.
- 7. Messrs. Monro and Giles are undoubtedly mistaken in saying, that suits have been generally4 sustained in the state-courts for british debts contracted5 before the war.
- ✓ 8. Is not a peculiar asperity to be found in speaking of murders, rapes, robberies, trespasses &c. Does the subject require it?6
- pa. 52. 9. Do we know enough of Brailsford vs. Morris from the newspaper to say, that it proves the point, for which it is quoted; or does what is published7 absolutely reach the matter in hand?
- pa. 59. 10. Can it be important to diminish the value of our debts to G. B; and if not, is it clear, that they are so much within the compass of payment? and if not clear, may not the ease of paying be retorted upon us under some future circumstances with great affect?
- pa. 60. 11. The true situation of the Maryland bank-Stock is in some particulars different from your representation.8
- 12. I once supposed, that a distinction9 between a claim of interest on an open account or bond was maintainable. My principle was, that the penalty became the debt, from which equity would not absolve without a payment of interest. But being thrown into the arms of equity, it partakes of every subject within its cognizance, and may therefore be modified, as an open account.
- ✓ pa. 5. 13. In examining Pagan’s case, I have been led to believe, that some aid may be drawn to his antagonist, from considering, that the whole of british hostility was carried on under the colour of acts of parliament, not the law of nations. Does not this discharge us from the liberality, due to other enemies?10
- 14. I know not, what circuit court has allowed interest during the war. The case in Connecticut is the nearest; but it is too indistinctly known to be cited by me.
The above observations are too much hurried, to have any thing deserving reliance.
MS (DLC: TJ Papers, 98: 16775); in Randolph’s hand, with check marks and page references added by TJ; undated; endorsed by TJ: “E. Randolph’s notes.”
This document, consisting of the Attorney General’s comments on TJ’s draft of his 29 May 1792 letter to British minister George Hammond on the disputed provisions of the Treaty of Paris, establishes that Randolph did in fact suggest a number of changes to the Secretary of State (see Vol. 23: 606n). TJ reported to the President on 16 May 1792 that the draft “is now in the hands of the Attorney general,” thus indicating approximately when Randolph wrote these notes (TJ to George Washington, 16 May 1792). For the changes TJ made in the draft in response to Randolph’s recommendations, see notes 1–3, 6–7, and 10 below.
Buller’s Nisi Prius: Sir Francis Buller, An Introduction to the Law relative to trials at Nisi Prius (London, 1772), the sixth edition of which (Dublin, 1791) TJ subsequently acquired (Sowerby, description begins E. Millicent Sowerby, comp., Catalogue of the Library of Thomas Jefferson, Washington, D.C., 1952–59, 5 vols. description ends No. 1974). Mr. H’s remark: see Hammond to TJ, 5 Mch. 1792. Pagan’s case: see note to Hammond to TJ, 26 Nov. 1791.
4. Word interlined.
5. Word interlined.
7. Word interlined in place of “quoted.”
8. Randolph here canceled an unfinished line: “12. Does not the st.”
9. Randolph first wrote the remainder of the sentence as “of a claim of interest was maintainable” before altering it to read as above.