To Thomas Jefferson
[Philadelphia, April 19, 1792]
The following are the material facts in relation to the case of Rutgers agt. Waddington,1 as far as they are now recollected, and a confidence is entertained, that the statement is substantially accurate.
The suit was brought in the Mayor’s court of the City of New York,2 for the occupation and injury of a brewhouse in that City, during the possession of it by the British army founded upon an act of the State of New York, entitled “An act for granting a more effectual relief in cases of certain trespasses”3 which gives remedy by action of trespass, to all citizens who had resided without the enemy’s lines, against those who had resided within those lines, wherever the property of the former had been occupied, injured, destroyed, purchased, or received by the latter, declaring “that no defendant should be admitted to plead in justification, any military order or command whatever of the enemy, for such occupancy, injury, destruction, purchase or receipt, nor to give the same in evidence on the general issue.” This act was passed subsequent to the provisional, but prior to the definitive treaty.
The fact was that the defendant had occupied the brewhouse in question, under regular authority of the British army, proceeding for a part of the time, immediately from the commander in chief,4 and for another part of it, from the Qr. Master General,5 and had even paid rent for the use of it.
Several pleas were pleaded, for the different portions of time, corresponding with the State of the fact, one alledging the occupation, under the immediate order of the commander in chief, the other under that of the Quarter Master General.
The particulars of the pleas appear to be accurately stated in Mr Hammond’s memorial.6
The court allowed the plea, which alledged the occupation, under the immediate authority of the commander in chief, and overruled the other, giving judgement for the plaintiff for the portion of time covered by the latter. The ground of distinction, was that it could not be in the course of service, for a Quarter Master General to let out Brew houses. The force of the treaty to overrule the inhibition against pleading a military order, was admitted by the decision, which allowed in fact the validity of such an order, when proceeding from the commander in chief.
But a writ of error was brought by the defendant to reverse the judgement in the supreme Court, and pending that writ, a voluntary compromise between the parties took place, which superceded its prosecution to a final decision. A sum of money was paid by the defendant, in consequence of this compromise.
It is however but candor to acknowledge, that from the uncertainty of the event, the desire of the defendant to compromise, as a prudential course, was not discouraged by his Counsel.
It is not recollected that any decision ever took place, in the Supreme Court of the State, giving effect to the inhibition above mentioned. It is believed that none ever did. The exceptionable clause was repealed by the Act of the 4th. of April 1787;7 which put an end to the question.
I acted as Attorney and Counsel for the defendant.8
Letterpress copy, Thomas Jefferson Papers, Library of Congress; copy, Adams Family Papers, deposited in the Massachusetts Historical Society, Boston.
1. Shortly after George Hammond presented his credentials as British Minister to the United States, Jefferson proposed that he and Hammond begin negotiations by each specifying the fashion in which the other’s country had violated the peace treaty of 1783 (see “Conversation with George Hammond,” January 2–9, 1792). On March 5, 1792, Hammond wrote a letter to the Secretary of State which contained a detailed indictment of the refusal of the United States to fulfill its treaty obligations (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 193–200). Among the court decisions which Hammond considered as contravening the treaty was the New York case of Rutgers v Waddington. As H had represented Joshua Waddington in the case brought by Elizabeth Rutgers, Jefferson asked H for information on the case to be used in his reply to Hammond. H’s recollection of Rutgers v Waddington appears as Item No. 46 in the letter Jefferson wrote to Hammond on May 29, 1792, which was among the documents submitted by Washington to Congress on December 5, 1792 (ASP description begins American State Papers, Documents, Legislative and Executive, of the Congress of the United States (Washington, 1832–1861). description ends , Foreign Relations, I, 141–246).
2. The Mayor’s Court in New York City was convened late in February, 1784. Rutgers v Waddington was one of the first cases brought before the court.
3. Laws of the State of New York, I description begins Laws of the State of New York Passed at the Sessions of the Legislature Held in the Years 1777, 1778, 1779, 1780, 1781, 1782, 1783, and 1784, Inclusive, Being the First Seven Sessions (Albany, 1886), I. description ends , 552 (March 17, 1783).
4. Sir Henry Clinton.
5. H is referring to the commissary general, who was Daniel Wies.
6. See note 1.
7. “An Act to repeal part of an act, entitled ‘An Act for granting a more effectual relief, in cases of certain trespasses’” (Laws of the State of New York, II description begins Laws of the State of New York Passed at the Sessions of the Legislature Held in the Years 1777, 1778, 1779, 1780, 1781, 1782, 1783, and 1784, Inclusive, Being the First Seven Sessions (Albany, 1886), I. description ends , 496 [April 4, 1787]).
8. H’s account of Rutgers v Waddington should be compared with the account in Goebel, Law Practice, I description begins Julius Goebel, ed., The Law Practice of Alexander Hamilton: Documents and Commentary (New York and London, 1964– ). description ends , 282–419, and in Richard B. Morris, ed., Select Cases of the Mayor’s Court of New York City, 1674–1784 (Washington, 1935), 57–59, 302–27.