From Richard Harison
New York December 4th: 1790
In consequence of the request, contained in your Letter of the 12th. of August last, I have entered into an Examination of the several legislative Acts and judicial proceedings in this State which may probably have been considered by the British Government as Infractions of the Treaty, between the United States, and Great Britain.—A variety of Circumstances, particularly the necessity of my own absence, and that of some of the public Officers, from this Place for a considerable time have rendered it impossible for me to be earlier in laying the result of my Enquiries before you. I hope however that no Inconvenience has arisen from such a Delay, which though unavoidable, has given me much Pain, and militated with the Inclination I have to be as serviceable to the Public as my Abilities will permit.
The Acts of the Legislature of New York, which upon any Constitution may be esteemed repugnant to the Treaty of Peace are but few in number. They consist of
1st. The Act relative to debts due to Persons within the Enemy’s lines passed the 12th day of July 1782, with it’s subsequent Modifications.º
2. The Act for granting a more effectual relief in Cases of certain Trespasses, passed 17th. of August1 1783, afterwards extended but in 1787, varied and in part repealed andº
3. The Act to preserve the Freedom and Independence of the State, commonly called the Discrimination Act, passed the 12th. May 1784, and since repealed.
[1. The Act relative to Debts due to Persons, within the Enemy’s Lines appears to have passed even before the provisional Articles were concluded between Great Britain, and the United States. It cannot therefore be considered as an Infraction of a Treaty, not existing until several Months after, which at most could only be contemplated as probable, and was perhaps considered as barely possible.
Whatever therefore might be the nature or Tendency of this Act, it’s Origin was not exceptionable as interfering with any national Compact. The Act besides a temporary restraint upon commencing any Suits by Persons, who had been with the Enemy (which was removed soon after the peace) subjected such Persons to the Loss of Interest upon their Debts from 1st. January 1776;made them liable to any farther abatement, even of the principal, which Referees might think proper; and obliged them to recieve the Balance in public Securities.
The Operation of this Act, became soon after the peace a Subject of much Complaint, grounded upon that Article of the Treaty which forbids any Impediment to the recovery of the full value in Sterling money of all bonâ Fide Debts, and that which declares that no Person shall suffer any future Loss in his Person, Liberty, or Property.
With regard to British Creditors, who were supposed to be the proper Objects of the 4th. Article of the Treaty, the Superior Courts of the State soon restrained the operation of the Act, and I do not know a Single Instance where they have been held to be affected by it.]2 But with regard to that Class of American Citizens, who either voluntarily united themselves to Great Britain in the late Contest, or remained within the Enemy’s Lines, rather than desert their Property, there is no doubt that the Act has had it’s full Operation; and these Persons have at all times complained that their Losses have been sustained “in consequence of the Part which they had taken in the late War.”
It would be extremely difficult if not impracticable, to collect every Instance in which Creditors of the latter descriptions, have been sufferers in consequence of this Act. Proceedings under it have been had in almost all the Courts of the State, and it would be necessary to search the Records of every County to particularize them. Besides which, many Creditors have been induced to compound with their Debtors, from the Threats that have been used, or the Apprehensions they have entertained upon this Subject—so that the effect of the Act has been more extensive than could be evidenced by any judicial Proceedings.º
The Act in question was explained and extended by an Act passed the 27th Novr: 1784 and amended by another passed the 20th. April 1787.º
By the latter Law, and by one passed the 3d. March 1789, the Debtor was precluded from the right of payment in public Securities, but was discharged from Interest between the 1st. of January 1776, and the 1st. May 1786, and thus a particular Class of Creditors, was deprived of Interest upon their Debts not only during the war but for several years after it was terminated.
I do not pretend to determine how far the Operation of these Laws is to be considered as contrary either to the Letter or Spirit of the definitive Treaty; nor whether that Treaty can be construed New Edit. of the Laws of N York Vol. 1. p. 186. Same Book Vol. 2d. p. 166. Same Book Vol. 2d. p. 470. as affording Security with respect to their Debts, to any but real British Subjects.
But altho’ British Creditors have not been held to be within the Laws, yet it is a well known Fact that they have not recovered any Interest upon simple Contract Debts, for the Period of the War, where the Debtor had been resident without the British Lines. The right of British Creditors to recover such interest was the subject of serious discussion in the Supreme Court of the State, some time in the year 1786 or 1787 where the Treaty of Peace was relied upon by their Counsel as conclusive in their favor. It was urged on the other Hand, that the War had been a general Calamity, during which the Parties could not have access to each other; and even3 if they could that not only the Law of Nations, but the express Regulations, both of Congress and the British Parliament had declared any intercourse between them to be highly criminal. That the American Merchants had suffered to a prodigious Extent in consequence of payments made to them in a depreciated Currency, and that it would be unjust in the Extreme to charge them with damages merely for omitting what they could not perform without a Violation of their Duty.º
Upon this Occasion the reasoning of the Defendant’s Counsel was prevalent. The Jury (which was special) disallowed the Claim of Interest during the War, and their Determination was sanctioned by the Judgment, if not by the avowed approbation of the Court. In Consequence it has become a general Rule to deduct Interest from British Debts for about Seven years, but the deduction has not been acquiesced in without frequent Complaints on the Part of the Creditors or their Agents.
2. I proceed now to the Act generally called the Trespass Act. This Act was intended to afford a Remedy to those American Citizens, whose property had been injured or made use of whilst in the Possession of the Enemy. It declares that all those who had left their Places of abode on account of the invasion of the Enemy and had not afterwards voluntarily put themselves into the Enemy’s Power, may bring Actions of Trespass against those who have occupied injured or destroyed their Estates within the Enemy’s Power or against any Persons who have purchased or recieved their Effects.4
It is evident that the general Expressions in this Law seem intentionally to have been adopted in order to comprehend every possible Case in which the Estate or Effects of the Persons described in the Act, had been in the Possession of others within the British Lines. No Exception is made for Persons compelled to act by the Mandates of British Officers; for Cases where Property was changed by the Laws of War among civilized Nations; nor even in favor of those who being subjects of the British Crown, had acted as open Enemies in the Line of their duty.
Hence a variety of Suits has been prosecuted upon this Act since the return of peace against British Officers for Acts of Hostility or Depredation; against Persons impressed or hired to cut or cart Wood for the British Troops; against Persons who had been employed as Artificers to take down Buildings; against Commissaries of Cattle; and against Merchants even of the British Nation who having joined the Enemy for the purposes of trade, were Occupants under their Authority of Houses deserted by the Citizens of America.
It may perhaps be questioned how far many of these Cases were upon sound Construction within the Purview of the Act, and perhaps also the Judges might have been justifiable in qualifying the general Expressions made use of by a tacit Exception of those Actions which were done by the Enemy as such, or had an immediate Relation to the War.º
Accordingly a decision was had in the Mayors Court of New York, that a British Merchant, who had hired a House from Officers appointed by the British General, and paid rent for it, should not be charged under the Act, by the American owner for the same occupation.
Still, however, as the Principles upon which this Decision was founded had been doubted, and the Act expressly forbid “any military Order or Command of the Enemy” being pleaded or given in Evidence many Persons were subjected to the payment of large Sums (as they supposed) on account of the part which they had taken in the War, and contrary to the Treaty of Peace which they insisted must from it’s very nature imply an Indemnity for Acts done in a State of Hostility.º
The latter Part of the Trespass Act was repealed on the 4th. of April 1787, but the Supreme Court of the State have nevertheless sustained Actions, even where it appeared that Property had been seised and sold by the direction of the Quarter master General of the British Army.
3. The Act commonly called the discrimination Act passed the 12th. of May 1784. has also been complained of as an Infraction of the Treaty, because Numbers of Persons coming within the description of American Refugees were thereby banished, or disqualified from electing or being elected to Offices. This Act was virtually repealed in some respects by the Act respecting Elections passed 13th February 1787. and in the whole by an Act passed 12th. March 1788.º
Having thus recapitulated all the Laws of New York, which I apprehend may have been considered by the British Nation as Infractions of the Treaty it is proper that I should mention an Act passed the 22d. February 1788, whereby all Acts and parts of Acts repugnant to the Treaty are repealed. If therefore any Infraction of the Treaty has taken place since that Period in consequence of the Laws of the State, it must be attributed not to the Legislature, but either to the judicial or executive Powers.º
For my own part I do not know of any Act by the Executive of this State which can with propriety be complained of as contrary to the Treaty between Great Britain and the United States.—With respect to the Acts of the Judiciary (besides those which I have mentioned) it has been a Subject of Complaint that Judgments have been given in several Instances upon the Confiscation Act since the Peace.—This Act is contained in the first Volume of the New Edition of New York Laws at page 39. &ca. and the Judgments uniformly pursued the Directions there given. I have procured from the Clerk of the Supreme Court a List of all the Judgments given since the date of the provisional Articles which you will find inclosed.5
I have now Sir complied as far as was practicable with your Commands except that part of them which relates to the furnishing a Collection of the State Laws. Upon that Subject I have already mentioned what I had been able to procure, but I did not chuse to send the Books without your Approbation. Indeed I supposed that the Removal of the Public Offices might render the delay acceptable.
If I can be further serviceable in this or any other matter that regards the general Service, you will be pleased to command me, and to believe that I am, with the utmost Deference and respect Sir your most obedt. and most humble Servant,
RC (DNA: RG 59, MLR); in clerk’s hand, unsigned; endorsed by TJ as received 18 Dec. 1790 and so recorded in SJL. Dft (NHi); with numerous deletions and interlincations, some of which—together with clerical errors in RC—are indicated in notes below. FC of Extract (DNA: RG 59, SDR); at head of text: “No. 45. Extract of a letter from Richard Harrison … to the Secretary of State, dated New York December 4th. 1790,” consisting of that part of the text indicated in note 2 below and enclosed in TJ to Hammond, 29 May 1792, as enclosure No. 45. PrC of Extract (DLC); in another clerk’s hand.
1. Thus in MS. Dft reads “March,” the correct date.
3. This word supplied from Dft, having been omitted by the clerk.
4. At this point in Dft the following is deleted: “The Remedy of this Act was afterwards extended in 1784 to absent Defendants, and great Numbers of Suits at Law have been commenced and prosecuted. Some of which are depending even at the present Hour and a Variety of Decisions has taken place in Consequence of it at different Times.”
5. At this point the following in Dft is deleted: “But whether these or any of them are to be considered as Infractions of the Treaty.”