From William Nelson, Jr.
Williamsburg February 4th. 1791.
I wrote to you by post on the 22d. of November, since which I have not had the pleasure of hearing from you. I then enclosed you attested copies of the resolutions and acts of Assembly, as well as those of proclamations and certain orders of council which affect the debts, or other property, or the persons of British subjects or American refugees. The day after the date of my letter, I sent the collection of the acts of Assembly printed in 1733. to York, to the care of Mr. T. Nelson, who was expected about that time to set off for Philadelphia.—Since that time, I determined to wait till I could make a more complete collection of the ordinances, and acts of the Assembly of this State, than could then be procured. I send you by this stage the edition abovementioned, together with those of 1752 and 1769: also the acts passed in 1769—
|the ordinances passed in||December||1775.|
|the Acts passed in||October||1776.|
|May and October||1778.|
|May and October||1779.|
|May and November||1781.|
|May and October||1782.|
|and of May||1783.|
The acts, from October 1783 to October 1788 inclusive, are in your office, and I will send those which are required to make up the complement from the beginning of the revolution as soon as I can procure them. The Gentlemen, who copied the acts, proclamations, resolutions, and orders of Council, have presented the enclosed accounts for their services.—You will be pleased to send me an order for the amount on William Heth collector for the district of Bermuda Hundred and City-Point. I have sent also the journals of two conventions, as they may contain some information curious, and worthy to be filed in your office, relative to the immediate causes of the revolution.
I mentioned in the letter above referred to, that some members of the bar hold an opinion, that “the act to repeal so much of a former act as suspends the issuing of executions, upon certain judgments, until December 1783,” which was passed in May 1782, (and which is No. 8. in the list sent you.); whilst it was in force, only prevented the recovery of debts which were assigned by British subjects to Citizens, and that, even if it did prohibit the recovery of british debts, which had never been assigned, it hath expired with the Act passed in Octr. 1782. to amend the former law.
From the marginal note, as well as the manner in which the judges of the Court of Chancery of this State have taken notice of the subject, in the table to the collection which is in your office, under the head of “British Debts,” it would seem that they favored the opinion that the first law only prevented the recovery of debts assigned. To me, however, it is clear, that the recovery of all debts originally due to British subjects, was prohibited by it, and the words “altho’ the same may be transferred to a citizen of this State and unless the assignment hath been made or may be made for a valuable consideration bona fide paid before the 1st. of May 1777. &c.” were intended only to prevent fraudulent assignments, and can not restrain thte prior general expressions that no debt originally due to British subjects should be recoverable.
The act of Octr. 1782 prevented the recovery of those debts or demands even if contracted with or due to any other person, for the use of, or in common with, any British subject, altho’ renewed, changed, and acknowledged to an agent, partner or assignee, or to any other person for their own use or benefit, or for that of such british-subject, since the 19th. of April 1775. By this act also citizen-partners might recover their proportion by attachment in the high Court of Chancery. It has been contended in the General Court of this state, in conformity with the opinion abovestated that the former act by this was rendered temporary, and, that this act having expired, the former hath also expired, it being the design of the legislature to embrace the whole subject of British debts in this and to comprehend in it the substance of the former, and hence that they making this temporary, intended that the other should be considered as temporary also. I think, however, that only the latter act is made temporary, and perhaps, even if a law at first perpetual, under an idea of its being temporary, is continued by a subsequent act, which is to expire at a particular period, when the latter goes out of force, the former is still in existence. The old doctrine, that, if a perpetual law is repealed by a temporary one, when the repealing law expires, the original law remains in force, is well known.
This rule of construction is now altered by the 9th. chapter of the Acts of 1789.
The question whether the Act passed in May 1782 was still in force arose before the passage of the Act of 1789; but, as it was only a collateral one before the court, it was not decided.—Whether the Act of October 1782 carried it out of existence with itself, or not; it appears to me that the Treaty with Great Britain has repealed it.
As your letter required information relative to the decisions on this subject, I have thought it not improper to state the question as it has arisen in one of our superior Courts, altho’ it was not decided. I referred you in my last to Colo. Monroe, as to two decisions, which I heard had taken place in the State-District-Courts of Charlottesville and Fredericksburg, as that gentleman practised at that time in those Courts, and informed you, that the general Court, at their last session had ordered the papers in the British Suits, which were made dormant by the sequestration law, to be sent to the District-Courts. This, however, was not thought to prejudge the question “whether they were recoverable.”—I beg’d also to be informed by you whether you wish for copies of the inquisitions, traverses, injunctions, judgments or decrees relative to escheated estates. As to the orders of council relative to sequestered estates or the persons of refugees prior to those which I sent, I informed you that the journals of the executive containing them, were in the hands of Colo. Davies, one of the commissioners for settling the accounts between the United States and the individual States.—I have the honor to be With great regard Sir Your mo: ob: servt.,
Wm. Nelson jr
P.S. Upon reflection I fear that the books, if sent by the stage, may miscarry, and shall therefore send them to Norfolk, to the care of Colo. Lindsay, who will send them to you by water. WN