To George Hammond
Philadelphia May 29th. 1792.
Your favor of March 5. has been longer unanswered than consisted with my wishes to forward as much as possible explanations of the several matters it contained.1 But these matters were very various and the evidence of them not easily to be obtained, even where it could be obtained at all. It has been a work of time and trouble to collect from the different States, all the acts themselves, of which you had cited the titles, and to investigate the judiciary decisions which were classed with those acts, as infractions of the Treaty of Peace. To these causes of delay may be added, the daily duties of my office, necessarily multiplied during the Sessions of the legislature.
§. 1. I can assure you with truth, that we meet you on this occasion with the sincerest dispositions to remove from between the two Countries those obstacles to a cordial friendship, which have arisen from an inexecution of some articles of the Treaty of Peace.2 The desire entertained by this country to be on the best terms with yours, has been constant, and3 has manifested itself, through it’s different forms of4 administration by repeated overtures to enter into such explanations and arrangements as should be right, and necessary to bring about a complete execution of the treaty. The same dispositions lead us to wish that the occasion now presented should not be defeated by useless recapitulations of what had taken place anterior to that instrument. It was with concern, therefore I observed that you had thought it necessary to go back to the very commencement of the war,5 and in several parts of your letter, to enumerate and comment on all the acts of our different legislatures, passed during the whole course of it, in order to deduce from thence imputations, which your justice would have suppressed, had the whole truth been presented to your view, instead of particular traits, detached from the Ground on which they stood. However easy it would be to justify our country, by bringing into view the whole ground, on both sides, to shew that legislative warfare began with the British parliament, that, when they levelled at persons or property, it was against entire Towns or Countries, without discrimination of cause or conduct, while we touched individuals only, naming them, man by man, after due consideration of each case, and careful attention not to confound the innocent with the guilty; however advantageously weº might compare the distant and tranquil situation of their legislature with the Scenes, in the midst of which, ours were obliged to legislate, and might then ask Whether the difference of circumstance and situation would not have justified a contrary difference of conduct, and Whether the wonder ought to be that our legislatures had done so much, or so little—we will wave all this; because it would lead to recollections, º as unprofitable as unconciliating. The titles of some of your º acts, and a single clause of one of them only shall be thrown among the Documents at the end of this letter; [No: 1. 2.] and with this we will drop for ever the curtain on this Tragedy!
§. 2. We now come together to consider that Instrument which was to heal our wounds, and begin a new chapter in our history. The state in which that found things is to be considered as rightful so says the law of Nations. ‘L’etat où les choses se trouvent au moment du Traité doit passer pour legitime; et si l’on veut y apporter du changement il faut que le traité en fasse une mention expresse. Par consequent toutes les choses dont le Traité ne dit rien, doivent demeurer dans l’etat où elles se trouvent lors de sa conclusion. Vattel. L. 4. §. 21. ‘De quibus nihil dictum, ea manerit quo sunt loco,’ Wolf. 1222. No alterations then are to be claimed on either side, but those which the Treaty has provided. The moment too to which it refers, as a rule of conduct for this country at large, was the moment of it’s notification to the Country at large. Vattel. L. 4. §. 24. ‘Le Traité de paix oblige les parties contractantes du moment qu’il est conclu aussitôt qu’il reçu toute sa forme; et elles doivent procurer incessamment l’execution—mais ce traité n’oblige les sujets, que du moment qu’il leur est notifié. and §. 25. ‘le traité devient par la publication, une Loi pour les Sujets, et ils sont obligés de se conformer desormais aux dispositions dont on y est convenu.’ And another author as pointedly says ‘Pactio pacis paciscentes statim obligat quamprimum perfectum. Cum ex pacto veniat obligatio. Subditos vero et milites, quamprimum iisdem fuerit publicata; cum de eâ, ante publicationem ipsis certo constare non possit.’ Wolf. §. 1229. It was stipulated indeed by the IXth. article that ‘if before it’s arrival in America’ any place or territory belonging to either party should be conquered by the arms of the other, it should be restored. This was the only case in which6 transactions intervening between the signature and publication were to be nullified.
Congress on the 24th. of March 1783 received informal intelligence from the Marquis de la Fayette, that Provisional Articles were concluded; and on the same day they received a copy of the Articles in a letterº of March 19th. from General Carleton and Admiral Digby. They immediately gave orders for recalling all armed Vessels, and communicated the º orders to those officers, who answered on the 26th. and 27th. that they were not authorized to concur in the recall of armed Vessels on º their part. On the 11th. of April, Congress receive an official copy of these Articles from Doctor Franklin, with notice that a Preliminary treaty was now signed between France, Spain, and England. The event having now taken place on which the Provisional Articles were to come into effect, on the usual footing of Preliminaries, Congress immediately proclaim them, and on the 19th. of April a Cessation of hostilities is published by the Commander in Chief.—These particulars place all acts preceding the 11th. of April out of the present discussion, and confine it to the Treaty itself, and the circumstances attending it’s execution. I have therefore taken the liberty of extracting from your list of American Acts all those preceding that epoch, and of throwing them º together in the paper No. 6. as things out of question. The subsequent Acts shall be distributed according to their several Subjects of I. Exile and Confiscation. II. Debts. and III. Interest on those Debts; º Beginning 1st. with those of Exile and Confiscation, which will be considered together, because blended together, in most of the acts, and blended also in the same Article of the Treaty.
§. 3. Itº cannot be denied that the state of war strictly7 permits a nation to seize the property of it’s enemies found within it’s own limits, or taken in war,8 and in whatever form it exists, whether in action or possession. This is so perspicuously laid down by one of the most respectable writers on subjects of this kind, that I shall use his words. ‘Cum ea sit belli conditio, ut hostes sint omini jure spoliati, rationis est, quascunque res hostium, apud hostes inventas, dominum mutare, et fisco cedere. Solet praeterea in singulis fere belli indictionibus constitui, ut bona hostium, tam apud nos reperta, quam capta bello, publicentur.—Si merum jus belli sequamur, etiam immobilia possent vendi, et eorum pretium in fiscum redigi, ut in mobilibus obtinet. Sed in omni fere Europâ sola fit annotatio, ut eorum fructus, durante bello, percipiat fiscus, finito autem bello, ipsa immobilia ex pactis restituuntur pristinis dominis.’ Bynkersh. Quest. Jur. Pub. L. 1.c.7. Every nation, indeed would wish to pursue the latter practice, if under circumstances leaving them their usual resources. But the circumstances of our war were without example; excluded from all commerce even with Neutral Nations, without arms, money, or the means of getting them abroad, we were obliged to avail ourselves of such resources as we found at home. Great Britain too, did not consider it as an ordinary9 war, but a rebellion;10 she did not conduct it according the rules of war established by the law of nations but according to her acts of Parliament, made from time to time to suit circumstances. She would not admit our title even to the strict rights of ordinary war: she cannot then claim from us it’s liberalities.—Yet the confiscations of property were by no means universal; and that of debts still less so. What effect was to be produced on them by the Treaty, will be seen by the words of the Vth. Article which are as follows.
§. 4. ‘Article Vth. It is agreed that the Congress shall earnestly recommend it to the legislatures of the respective States, to provide for the restitution of all estates, rights and properties, which have been confiscated, belonging to real British subjects, and also of the estates, rights, and properties of persons resident in districts in the possession of his Majesty’s arms, and who have not borne arms against the said United States, and that persons of any other description shall have free liberty to go to any part or parts of any of the thirteeen United States and therein to remain twelve Months, unmolested in their endeavors to obtain the restitution of such of their estates, rights and properties, as may have been confiscated: and that Congress shall also earnestly recommend to the several states a reconsideration and revision of all acts or laws regarding the premises, so as to render the said laws or acts perfectly consistent, not only with justice and equity, but with that spirit of conciliation, which on the return of the blessings of Peace should universally prevail. And that Congress shall also earnestly recommend to the several States, that the estates, rights, and properties of such last mentioned persons, shall be restored to them, they refunding to any persons who may be now in possession, the bonâ fide price (where any has been given) which such persons may have paid on purchasing any of the said lands, rights, or properties, since the confiscation. And it is agreed, that all persons, who have any interest in confiscated lands, either by Debts, Marriage Settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights.
‘Article VIth. That there shall be no future confiscations made.’
§. 5. Observeº that in every other article the parties agree expressly that such and such things shall be done. In this they only agree to recommend that they shall be done. You are pleased to say (pa. 7.) ‘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.’ On the contrary we may fairly presume that if they had had the power to enforce, they would not merely have recommended. When in every other article they agree expressly to do, why in this do they change the Stile suddenly and agree only to recommend? because the things here proposed to be done were retrospective in their nature, would tear up the laws of the several States, and the contracts and transactions private and public which had taken place under them; and retrospective laws were forbidden by the Constitutions of several of the States.11 Between persons whose native language is that of this Treaty it is unnecessary12 to explain the difference between enacting a thing to be done, and recommending it to be done; the words themselves being as well understood as any by which they could be explained. But it may not be unnecessary to observe that recommendations to the people, instead of laws, had been introduced among us, and were rendered familiar in the interval between discontinuing the old, and establishing the new governments. The conventions and committees who then assembled to guide the conduct of the people, having no Authority to oblige them by law, took up the practice of simply recommending measures to them. These recommendations they either complied with, or not, at their pleasure. If they refused, there was complaint, but no compulsion. So after organizing the governments, if at any time it became expedient that a thing should be done, which Congress, or any other of the organized Bodies, were not authorized to ordain, they simply recommended, and left to the people, or their legislatures, to comply or not, as they pleased. It was impossible that the negotiators on either side should have been ignorant of the difference between agreeing to do a thing, and agreeing only to recommend it to be done. The import of the terms is so different, that no deception or surprise could be supposed, even if there were no evidence that the difference was attended to, explained and understood.
§. 6. Butº the evidence on this occasion removes all question. It is well known that the British court had it extremely at heart to procure a restitution of the estates of the refugees, who had gone over to their side: that they proposed it in the first conferences, and insisted on it to the last: that our Commissioners, on the other hand, refused it from first to last, urging 1st: That it was unreasonable to restore the confiscated property of the refugees, unless they would reimburse the destruction of the property of our Citizens, committed on their part; and 2dly. That it was beyond the powers of the Commissioners to stipulate, or of Congress to enforce. On this point the Treaty hung long. It was the subject of a special mission of a confidential Agent of the British Negotiator from Paris to London. It was still insisted on, on his return, and still protested against by our Commissioners: and when they were urged to agree only that Congress should recommend to the State legislatures to restore the estates &c. of the refugees, they were expressly told that the legislatures would not regard the recommendation.º In proof of this, I subjoin extracts from the letters and journals of Mr. Adams and Doctor Franklin, two of our Commissioners, the originals of which are among the records of the Department of State, and shall be open to you for a verification of the copies. These prove beyond all question that the difference between an express agreement to do a thing, and to recommend it to be done, was well understood by both parties, and that the British negotiators were put on their guard by those on our part, not only that the legislatures would be free to refuse, but that they probably would refuse. And it is evident from all circumstances that Mr. Oswald accepted the recommendation merely to have something to oppose to the clamours of the refugees, to keep alive a hope in them that they might yet get their property from the State legislatures; and that if they should fail in this, they would have ground to demand indemnification from their own government: and he might think it a circumstance of present relief, at least, that the question of indemnification by them should be kept out of sight till time and events should open it upon the Nation insensibly.
§. 7. The same was perfectly understood by the British Ministry, andº by the members of both houses of Parliament, as well those who advocated, as those who opposed the Treaty: the latter of whom, being out of the Secrets of the Negotiation, must have formed their Judgments on the mere import of the terms. That all parties concurred in this exposition will appear by the following extracts from the Parliamentary register, a work, which without pretending to give what is spoken with verbal accuracy, may yet be relied on, we presume,13 for the general reasoning and opinions of the Speakers. Houseº of Commons.14
The Preliminary Articles under consideration. 1783. Feb. 17. Mr. Thomas Pitt. ‘That the interest of the sincere loyalists were as dear to him as to any man, but that he could never think it would have been promoted by carrying on that unfortunate war which parliament had in fact suspended before the beginning of the Treaty; that it was impossible, after the part Congress was pleased to take in it, to conceive that their recommendation would not have it’s proper influence on the different legislatures; that he did not himself see what more could have been done on their behalf, except by renewing the war for their sakes, and increasing ours and their calamities.’ 9. Debrett’s Parl. Register 233.
Mr. Wilberforce. ‘When he considered the case of the loyalists he confessed he felt himself there conquered; there he saw his country humiliated; he saw her at the feet of America! Still he was induced to believe, that Congress would religiously comply with the Article, and that the loyalists would obtain redress from America. Should they not, this country was bound to afford it them. They must be compensated; Ministers, he was persuaded, meant to keep the faith of the Nation with them, and he verily believed, had obtained the best terms they possibly could for them.’ ib. 236.
Mr. Secretary Townshend. ‘He was ready to admit that many of the Loyalists had the strongest claims upon this Country; and he trusted, should the recommendation of Congress to the american States prove unsuccessful, which he flattered himself would not be the case, this country would feel itself bound in honor to make them full compensation for their losses.’ ib. 262.
House of Lords Feb. 17. 1783.
Lord Shelburne. ‘A part must be wounded, that the whole of the Empire may not perish. If better terms could be had, think you, my Lords, that I would not have embraced them? You all know my creed. You all know my steadiness. If it were possible to put aside the bitter cup the Adversities of this Country presented to me, you know I would have done it: but you called for peace.—I had but the alternative, either to accept the terms, said Congress, of our recommendation to the States, in favor of the Colonists, or continue the war. It is in our power to do no more than recommend. Is there any man who hears me, who will clap his hand on his heart, and step forward and say, I ought to have broken off the Treaty? If there be, I am sure he neither knows the State of the country, nor yet has he paid any attention to the wishes of it.—But say the worst: and that, after all, this estimable set of men are not received and cherished in the bosom of their own country. Is England so lost to gratitude, and all the feelings of humanity, as not to afford them an Asylum? Who can be so base as to think she will refuse it to them? Surely it cannot be that noble minded man who would plunge his country again kneedeep in blood, and saddle it with an expense of twenty millions for the purpose of restoring them. Without one drop of blood spilt, and without one fifth of the expense of one year’s campaign, happiness and ease can be given the loyalists in as ample a manner as these blessings were ever in their enjoyment: therefore let the outcry cease on this head.’ ib. 70.71.
Lord Hawke. ‘In America, said he, Congress had engaged to recommend their [the Loyalists] cause to the legislatures of the country: what other term could they adopt? He had searched the journals of Congress on this subject: what other term did they, or do they ever adopt in their requisitions to the different Provinces? It is an undertaking on the part of Congress: that body, like the King here, is the Executive power in america. Can the Crown undertake for the two Houses of Parliament? It can only recommend. He flattered himself that recommendation would be attended with success: but, said he, state the case, that it will not, the liberality of Great Britain is still open to them. Ministers had pledged themselves to indemnify them, not only in the address now moved for, but even in the last address, and in the Speech from the Throne.’
Lord Walsingham. ‘We had only the recommendation of Congress to trust to; and how often had their recommendations been fruitless? There were many cases in point in which provincial assemblies had peremptorily refused the recommendations of Congress. It was but the other day the States refused money on the recommendations of Congress. Rhode Island unanimously refused when the Congress desired to be authorized to lay a duty of 5 Cent; because the funds had failed. Many other circumstances might be produced of the failure of the recommendations of Congress, and therefore, we ought not, in negotiating for the Loyalists, to have trusted to the recommendations of Congress. Nothing but the repeal of the acts existing against them ought to have sufficed, as nothing else could give effect to the treaty. Repeal was not mentioned. They had only stipulated to revise and reconsider them.’ 11. Debrett’s Parl. reg. 44.
Lord Sackville. ‘The King’s ministers had weakly imagined that the recommendation of Congress was a sufficient security for these unhappy men. For his own part, so far from believing that this would be sufficient, or any thing like sufficient for their protection, he was of a direct contrary opinion: and if they entertained any notions of this sort, he would put an end to their idle hopes at once, by reading from a paper in his pocket, a resolution, which the assembly of Virginia had come to, so late as on the 17th. of December last—the resolution was as follows. ‘That all demands or requests of the British court for the restitution of property confiscated by this State, being neither supported by law, equity or policy, are wholly inadmissible: and that our Delegates in Congress be instructed to move Congress, that they may direct their Deputies, who shall represent these States in the general Congress for adjusting a peace or truce, neither to agree to any such restitution, or submit that the laws made by any independent State in this Union be subjected to the adjudication of any power or powers on earth.” ib. pa. 62. 63.
Some of the Speakers seem to have had not very accurate ideas of our Government. All of them however, have perfectly understood that a recommendation was a matter, not of obligation or coercion, but of persuasion and influence merely. They appear to have entertained greater or less degrees of hope or doubt as to it’s effect on the legislatures, and though willing to see the result of this chance, yet if it failed, they were prepared to take the work of indemnification on themselves.15
§. 8. Theº agreement then being only that Congress should recommend to the State legislatures a restitution of estates and liberty to remain a twelve-month for the purpose of soliciting the restitution and to recommend a revision of all acts regarding the Premises, Congress did immediately, on the receipt of the Definitive Articles, to wit, on the 14th. of January 1784 come to the following Resolution, vizt. ‘Resolved, unanimously, nine States being present, That it be, and it is hereby earnestly recommended to the legislatures of the respective States to provide for the restitution of all estates, rights, and properties which have been confiscated, belonging to real British Subjects; and also of the estates, rights, and properties of persons resident in districts, which were in the possession of his Britannic Majesty’s arms, at any time between the 30th. day of Nov. 1782, and the 14th. day of January 1784, and who have not borne arms against the said United States; and that persons of any other description shall have free liberty to go to any part or parts of any of the thirteen United States, and therein to remain twelve months unmolested in their endeavours to obtain the restitution of such of their estates, rights, and properties as may have been confiscated: And it is also hereby earnestly recommended to the several States to reconsider and revise all their acts or laws regarding the premises, so as to render the said laws or acts perfectly consistent not only with justice and equity, but with that spirit of conciliation, which, on the return of the Blessings of peace should universally prevail: And it is hereby also earnestly recommended to the several States, that the estates, rights, and properties of such last mentioned persons should be restored to them, they refunding to any persons who may be now in possession the bonâ fide price (where any has been given) which such persons may have paid on purchasing any of the said lands, rights or properties since the confiscation.
Ordered, that a copy of the proclamation of this date, together with the recommendation, be transmitted to the several States by the Secretary.
§. 9. The British Negotiators had been told by ours that all the States would refuse to comply with this recommendation. One only however, refused altogether. The others complied in a greater or less degree, according to the circumstances and dispositions in which the events of the war had left them. But had all of them refused, it would have been no violation of the Vth. Article, but an exercise of that freedom of will, which was reserved to them, and so understood by all parties.
Theº following are the acts of your catalogue which belong to this head, with such short observations as are necessary to explain them;16 Beginning at that end of the Union, where the war having raged most, we shall meet with the most repugnance to favor.
§. 10. Georeia.
July 29.º An act releasing certain persons from their bargains. A law had been passed during the war, to wit, in 1782 [A.30.] confiscating the estates of persons therein named, and directing them to be sold. They were sold; but some misunderstanding happened to prevail among the purchasers, as to the mode of payment. This act of 1783, therefore, permits such persons to relinquish their bargains, and authorizes a new sale—the lands remaining confiscated under the law made previous to the Peace.
Feb. 22.º An act to authorize the Auditor to liquidate the demands of such persons as have claims against the confiscated Estates. In the same law of confiscations made during the war, it had been provided that the estates confiscated should be subject to pay the debts of their former owner. This law of 1785 gave authority to the Auditor to settle with and pay the creditors, and to sell the remaining part of the estate confiscated as before.
Feb. 10.º An act to compel the settlement of public accounts, for inflicting penalties, and vesting the Auditor with certain powers. This law also is founded on the same confiscation law of 1782 requiring the Auditor to press the settlement with the creditors, &c.
Feb. 7.º An act for ascertaining the rights of Aliens, and pointing out the mode for the admission of citizens. It first describes what persons shall be free to become citizens, and then declares none shall be capable of that character who had been named in any confiscation law, or banished, or had borne arms against them. This act does not prohibit either the refugees, or real British Subjects from coming into the State to pursue their lawful affairs. It only excludes the former from the right of citizenship; and, it is to be observed, that this recommendatory Article does not say a word about giving them a right to become citizens.17 If the conduct of Georgia should appear to have been peculiarly uncomplying, it must be remembered that, that state had peculiarly suffered; that the British army had entirely overrun it; had held possession of it for some years; and that all the inhabitants had been obliged either to abandon their estates and fly their country, or to remain in it under a military government.
§. 11. South Carolina.
Augt. 15.º An act to vest 180 acres of land late the property of James Holmes in certain persons in trust for the benefit of a public school. These lands had been confiscated and sold during the war. The present law prescribes certain proceedings as to the purchasers, and provides for paying the debts of the former proprietors.
Mar. 22.º An act to amend the confiscation act, and for other purposes therein mentioned. This relates only to estates which had been confiscated before the peace. It makes some provision towards a final settlement, and relieves a number of persons from the amercements which had been imposed on them during the war for the part they had taken.
March 26.º An act restoring to certain persons their estates, and permitting the said persons to return, and for other purposes. This act recites that certain estates had been confiscated, and the owners 124 in number banished by former laws; that Congress had earnestly recommended in the terms of the treaty—it therefore distributes them into three lists or classes, restoring to all of them the lands themselves where they remained unsold, and the price, where sold: requiring from those in lists No. 1. and 3. to pay 12 Cent on the value of what was restored, and No. 2. nothing; and it permits all of them to return, only disqualifying those of No. 1. and 3. who had borne military commissions against them, from holding any office for seven years.
Governor Moultrie’sº letter of June 21. 1786 informs us that most of the confiscations had been restored; that the value of those not restored, was far less than that of the property of their citizens carried off by the British; and that fifteen instead of twelve Months had been allowed to the persons for whom permission was recommended to come and solicit restitution.
§. 12. North Carolina.
Oct.º An Act directing the sale of confiscated property.
Dec. 29.º An Act to secure and quiet in their possessions the purchasers of Lands, Goods, &c. sold or to be sold by the Commissioners of forfeited estates. These two acts relate expressly to property ‘heretofore confiscated,’ and secure purchasers under those former confiscations.
Theº case of Bayard v. Singleton adjudged in a court of Judicature in North º Carolina. Bayard was a purchaser of part of an estate confiscated during the war, and the Court adjudged his title valid; and it is difficult to conceive on what principle that adjudication can be complained of as an infraction of the Treaty.
Nov. 19.º An act was passed to restore a confiscated estate to the former proprietor, Edward Bridgen.
Oct.º An Act to describe and ascertain such persons as owed allegiance to the State, and impose certain disqualifications on certain persons therein named.
Nov.º An act to amend the preceding act.
April.º An act of pardon and oblivion. The two first of these acts exercised the right of the State to describe who should be it’s citizens, and who should be disqualified from holding offices. The last intitled an act of pardon and oblivion, I have not been able to see; but so far as it pardons, it is a compliance with the recommendation of Congress under the treaty, and so far as it excepts persons out of the pardon, it is a refusal to comply with the recommendation, which it had a right to do. It does not appear that there has been any obstruction to the return of those persons who had claims to prosecute.
§. 13. Virginia.
The catalogue under examination presents no act of this State subsequent to the treaty of Peace on the subject of confiscations. By one of Oct. 18. 1784,º they declared there should be no future confiscations. But they did not chuse to comply with the recommendation of Congress, as to the restoration of property which had been already confiscated: with respect to persons, the first assembly which met after the peace, passed—
Oct.º The act prohibiting the migration of certain persons to this Commonwealth, and for other purposes therein mentioned, which was afterwards amended by
Oct.º An act to explain and amend the preceding.
These acts, after declaring who shall not have a right to migrate to, or become citizens of the State, have each an express proviso that nothing contained in them shall be so construed as to contravene the treaty of peace with Great Britain, and a great number of the refugees having come into the state under the protection of the first law, and it being understood that a party was forming in the State to ill treat them,º the Governor, July 26. 1784 published the Proclamation No. 14. enjoining all Magistrates, and other civil officers to protect them, and secure to them the rights derived from the treaty and acts of assembly aforesaid, and to bring to punishment all who should offend herein, in consequence of which those persons remained quietly in the state, and many of them have remained to this day.
§. 14. Maryland.
Nov.º An act to vest certain powers in the Governor and Council. Sec. 3.
Nov.º An act to empower the Governor and Council to compound with  the discoverers of British property, and for other purposes. These acts relate purely to property which had been confiscated during the war, and the State not chusing to restore it as recommended by Congress, passed them for bringing to a conclusion the settlement of all transactions relative to the confiscated property.
I do not find any law of this state which could prohibit the free return of their refugees, or the reception of the Subjects of Great Britain, or of any other country. And I find that they passed in
Nov.º An act to repeal that part of the act for the security of their government which disqualified non jurors from holding offices and voting at elections.
Theº case of Harrison’s representatives in the Court of chancery of Maryland is in the list of infractions. These representatives being British subjects, and the laws of this country, like those of England, not permitting aliens to hold lands, the question was whether british subjects were aliens. They decided that they were; consequently that they could not take lands, and consequently also, that the lands in this case18 escheated to the State. Whereupon the legislature immediately interposed and passed a special act allowing the benefits of the succession º to the representatives. But had they not relieved them, the case would not have come under the treaty, for there is no stipulation in that doing away the laws of alienage and enabling the members of each nation to inherit or hold lands in the other.
§. 15. Delaware.
This state in the year 1778 passed an act of confiscation against 46 citizens by name, who had joined in arms against them, unless they should come in by a given day and stand their trial. The estates of those who did not, were sold and the whole business soon closed. They never passed any other act on the subject, either before or after the peace. There was no restitution, because there was nothing to restore—their debts having more than exhausted the proceeds of the salesº of their property as appears by Mr. Reed’s letter, and that all persons were permitted to return, and such as chose it have remained there in quiet to this day.
§. 16. Pennsylvania.
The catalogue furnishes no transaction of this State, subsequent to the arrival of the treaty of Peace, on the subject of confiscation, except Aug.º An order of the Executive council to sell part of Harry Gordon’s real estate, under the act of Jany. 31. 1783. This person had been summoned by Proclamation, by the name of Henry Gordon, to appear before the 1st. day of November 1781, and, failing, his estate was seized by the Commissioners of forfeitures, and most of it sold. The act 1783 January 31, cured the misnomer, and directed what remained of his estate to be sold. The confiscation being complete, it was for them to say whether they would restore it in compliance with the recommendation º of Congress. They did not, and the Executive completed the sale as they were bound to do. All persons were permitted to return to this State, and you see many of them living here to this day in quiet and esteem.
§. 17. New Jersey.
The only act alledged against this State as to the recommendatory article, is
Dec. 23.º An act to appropriate a certain forfeited estate. This was the estate of John Zabriski, which had been forfeited during the war, and the act gives it to Major General Baron Steuben in reward for his Services. The confiscation being complete, the legislature were free to do this.
Governorº Livingston’s letter, is an additional testimony of the moderation of this state, after the Proclamation of Peace, and from that we have a right to conclude that no persons were prevented from returning and remaining indefinitely.
§. 18. New York.
This State had been among the first invaded, the greatest part of it had been possessed by the enemy through the war; it was the last evacuated; it’s inhabitants had in great numbers been driven off their farms, their property wasted, and themselves living in exile and penury, and reduced from affluence to want, it is not to be wondered at if their sensations were among the most lively—accordingly they in the very first moment, gave a flat refusal to the recommendation, as to theº restoration of property, see Document No. 17. containing their reasons. º They passed, however May 12. The act to preserve the freedom and independence of this State, and for other purposes therein mentioned, in which, after disqualifying refugees from offices, they permit them to come and remain as long as may be absolutely necessary to defend their estates.
§. 19. Connecticut.
A single act only on the same subject is alledged against this State after the treaty of Peace. This was
Anº act directing certain confiscated estates to be sold. The title shews they º were old confiscations, not new ones, and Governor Huntington’s letter, informs us that all confiscations and prosecutions were stopped on the peace, that some restorations of property took place, and all persons were free to return.
§. 20. Rhode Island.
The titles of 4 Acts of this State are cited in your appendix, to wit—
May 27.º An act to send out of the State N. Spink and J. Underwood who had formerly joined the enemy, and were returned to Rhode Island.
June 8.º An act to send William Young theretofore banished out of the State and forbidden to return at his peril.
June 12.º An act allowing William Brenton late an absentee, to visi his family for one week, then sent away not to return.
Oct.º An act to banish S. Knowles (whose estate had been forfeited) on pain of death if he return. Mr. Channing, the attorney of the United States º for that District, says in his letter, ‘he had sent me all the acts of that legislature that affect either the debts or the persons of British subjects, or american refugees.’ The acts19 above cited are not among them. In the answer of April 6. which you were pleased to give to mine of March 30. desiring copies of these, among other papers,20 you say the book is no longer in your possession. These circumstances, will I hope excuse my not answering21 or admitting these acts, and justify my proceeding to observe that nothing is produced against this State on this subject after the treaty; and the District Attorney’s letter, before cited22 informs us that their courts considered the treaty as paramount the laws of the State, and decided accordingly, both as to persons and property, and that the estates of all British subjects seized by the State had º been restored, and the rents and profits accounted for. Governor Collins’s letter No. 20. is a further evidence of the compliance of this State.23
§. 21. Massachusetts.
Mar. 24.º This State passed, an act for repealing two laws of this State, and for asserting the right of this free and sovereign Commonwealth to expel such aliens as may be dangerous to the Peace and good order of Government, the effect of which was to reject the recommendation of Congress as to the return of persons, but to restore to them such of their lands as were not confiscated, unless they were pledged for debt and by
Nov. 10.º An act in addition to an act for repealing two laws of this State, they allowed them to redeem their lands pledged for debt, by paying the debt.
§. 22. New Hampshire.
Against New Hampshire nothing is alledged; that State, having not been invaded at all, was not induced to exercise any acts of rigor against the subjects or adherents of their enemies.
The acts then, which have been complained of as violations of the Vth: Article, were such as the States were free to pass notwithstanding the recommendation, such as it was well understood they would be free to pass without any imputation of infraction and may, therefore, be put entirely out of question.
§. 23.º And we may further observe with respect to the same acts that they have been considered as infractions not only of the Vth. Article, which recommended the restoration of the confiscations which had taken place during the war, but also of that part of the VIth. Article which forbade future confiscations, but not24 one of them touched an estate which had not been before confiscated;25 for you will observe *that* an act of the legislature confiscating lands, stands in place of an Office found in ordinary cases: and that on the passage of the act, as on the finding of the office, the State stands ipso facto possessed of the lands, without a formal entry. The confiscation then is complete by the passage of the act. Both the title and possession being devested out of the former proprietor, and vested in the state, no subsequent proceedings relative to the lands, are acts of confiscation, but are mere exercises of ownership, whether by levying profits, conveying for a time by lease, or in perpetuo, by an absolute deed. I believe, therefore, it may be said with truth that there was not a single confiscation made in any one of the United States, after Notification26 of the treaty: and consequently it will not be necessary to notice again this part of the VIth. Article.
§. 24.º Before quitting the Recommendatory article, two passages in the letter are to be noted, which, applying to all the States in general could not have been properly answered under any one of them in particular. In page 16. is the following passage. ‘The express provision in the Treaty for the restitution of the estates and properties of persons of both these descriptions [British subjects, and Americans who had staid within the British lines, but had not borne arms] certainly comprehended a virtual acquiescence in their right to reside where their property was situated, and to be restored to the privileges of citizenship.’ Here seems to be a double Error; first in supposing an express provision whereas the words of the article, and the collateral testimony adduced, have shewn that the provision was neither express, nor meant to be so. And secondly, in inferring from a restitution of the estate, a virtual acquiescence in the right of the party to reside where the estate is. Nothing is more frequent than for a sovereign to banish the person and leave him possessed of his estate. The inference in the present case too is contradicted as to the refugees by the recommendation to permit their residence twelve months; and as to British subjects, by the silence of the Article, and the improbability that the British Plenipotentiary meant to stipulate a right for British subjects to emigrate and become members of another community.
§. 25.º Again, in pa. 34, it is said ‘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 has been before proved that Mr. Oswald understood perfectly that no indemnification was claimable from us; that, on the contrary, we had a counterclaim of indemnification to much larger amount: it has been supposed, and not without grounds, that the glimmering of hope provided by the recommendatory article, was to quiet for the present the Clamours of the sufferers, and to keep their weight out of the Scale of opposition to the peace, trusting to time and events for an oblivion of these claims, or a gradual ripening of the public mind to meet and satisfy them at a moment of less embarrassment: the latter is the turn which the thing took. The claimants continued their importunities,27 and the government determined at length to indemnify them for their losses; and, open-handedly as they went to work, it cost them less than to have settled with us the just account of mutual indemnification, urged by our Commissioners.28 It may be well doubted whether there were not single states of our Union to which the four Millions you have paid, would have been no indemnification for the losses of property sustained contrary even to the laws of war:29 and what sum would have indemnified the whole thirteen, and consequently, to what sum our whole losses of this description have amounted, would be difficult to say. However, though in no wise interested in the sums you thought proper to give to the refugees, we could not be inattentive to the measure in which they were dealt out. Those who were on the spot, and who knew intimately the state of affairs with the individuals of this description, who knew that their debts often exceeded their possessions, insomuch that the most faithful administration made them pay but a few Shillings in the pound, heard with wonder of the sums given, and could not but conclude that those largesses were meant for something more than loss of property; that services and other circumstances must have had great influence. The sum paid is, therefore, no imputation on us. We have borne our own losses. We have even lessened yours by numerous restitutions, where circumstances admitted them: and we have much the worst of the Bargain, by the alternative you chose to accept, of indemnifying your own sufferers, rather than ours.
§. 26. II.º The article of DEBTS is next in order: but, to place on their true º grounds, our proceedings relative to them, it will be necessary to take a view of the British proceedings which are the subject of complaint in my letter of December 15.
Inº the VIIth. article it was stipulated that his Britannic Majesty should withdraw his armies, garrisons, and fleets without carrying away any Negroes or other property of the american Inhabitants. This stipulation was known to the British commanding Officers before the 19th. of March 1783, as provisionally agreed, and on the 5th. of April, they received official Notice from their Court of the conclusion and ratification of the preliminary Articles between France, Spain, and Great Britain, which gave activity to ours, as appears by the letter of º Sir Guy Carleton to General Washington, dated April 6. 1783 [Document No. 21]. From this time then, surely no Negroes could be carried away without a violation of the Treaty. Yet we find that so early as the 6th. of May, a large number of them had already been embarked for Nova Scotia, of which, as contrary to an express stipulation in the Treaty, General Washington declared to him his sense and his surprise. In the letter of Sir Guy Carleton of May 12th. (annexed to mine to you of the 15th. of December) he admits the fact, palliates it by saying he had no right ‘to deprive the Negroes of that liberty he found them possessed of, that it was unfriendly to suppose that the King’s minister could stipulate to be guilty of a notorious breach of the public faith towards the Negroes, and that if it was his intention, it must be adjusted by compensation, restoration being utterly impracticable, where inseparable from a breach of public faith.’ But surely, Sir, an officer of the King is not to question the validity of the King’s engagements, nor violate his solemn Treaties, on his own scruples about the public faith. Under this pretext, however, General Carleton went on in daily infractions, embarking from time to time, between his notice of the Treaty the 5th. of April, and the evacuation of New York Nov. 25th. 3,000 Negroes, of whom our Commissioners had inspection, and a very large number more in public and private vessels, of whom they were not permitted to have inspection. Here then was a direct, unequivocal, and avowed violation of this part of the VIIth. Article, in the first Moments of it’s being known; an Article which had been of extreme solicitude on our part; on the fulfilment of which depended the means of paying debts, in proportion to the Number of labourers withdrawn: and when in the very act of violation we warn, and put the commanding Officer on his guard, he says directly he will go through with the Act, and leave it to his Court to adjust it by Compensation.
§. 27. By the same Article, his Britannic Majesty stipulates that heº will, with all convenient speed, withdraw his Garrisons from every post within the United States. ‘When no precise term, says a writer on the law of nations [Vattel L. 4. c. 26.] has been marked for the accomplishment of a Treaty, and for the execution of each of it’s articles, good sense determines that every point should be executed as soon as possible: this is without doubt what was understood.’30 The term in the Treaty, with all convenient speed, amounts to the same thing, and clearly excludes all unnecessary delay. The general pacification being signed on the 20th. of January, some time would be requisite for the Orders for evacuation to come over to America, for the removal of Stores, property and persons; and, finally, for the act of evacuation. The larger the post, the longer the time necessary to remove all it’s contents; the smaller the sooner done. Hence, though General Carleton received his orders to evacuate New York in the Month of April, the evacuation was not completed till late in November. It had been the principal place of arms and Stores; the Seat, as it were, of their general Government, and the asylum of those who had fled to them. A great quantity of shipping was necessary, therefore, for the removal, and the General was obliged to call for a part from foreign countries. These causes of delay were duly respected on our part. But the Posts of Michillimackinac,* Detroit, Niagara, Oswego, Oswegatchie, Point au fer, Dutchman’s point, were not of this magnitude. The orders for evacuation, which reached General Carleton in New York, early in April, might have gone, in one month more, to the most remote of these posts: some of them might have been evacuated in a few days after, and the largest in a few weeks. Certainly they might all have been delivered, without any inconvenient speed in the operations, by the end of May, from the known facility furnished by the Lakes, and the water connecting them; or by crossing immediately over into their own Territory, and availing themselves of the Season for making new establishments there, if that was intended: or whatever time might, in event, have been necessary for their evacuation, certainly the order for it should have been given from England, and might have been given as early as that from New York. Was any order ever given? Would not an unnecessary delay of the order, producing an equal delay in the evacuation, be an infraction of the Treaty?—Let us investigate this matter.
On the 3rd. of August 1783, Major General Baron Steuben, by orders from General Washington, having repaired to Canada for this purpose,º wrote the letter No. 22. to General Haldimand, Governor of the Province, º and received from him the Answer of Aug. 13. No. 23. wherein he says ‘The orders I have received, direct a discontinuance of every hostile measure only’ &c. and in his conference with Baron Steuben, he says expressly ‘that he had not received any orders for making the least arrangement for the evacuation of a single post.’ The orders then which might have been with him by the last of April, were unknown, º if they existed, the middle of August. See Baron Steuben’s letter No. 24.
Again, on the 19th. of March 1784, Governor Clinton of New York, within the limits of which State some of these posts are, writes to Generalº Haldimand the letter No. 25. and that General answering him May 10th. from Quebec, says ‘Not having had the honor to receive orders and instructions relative to withdrawing the Garrisons,’ &c. fourteen months were now elapsed, and the orders not yet received, which might have been received in four.
Again on the 12th. of July, Colonel Hull, by order from General Knox,º the Secretary at war, writes to General Haldimand the letter No. 27.º and General Haldimand gives the answer of the 13th. No. 28. wherein he says ‘Though I am now informed by his Majesty’s Ministers of the ratification, &c. I remain, &c. not having received any orders to evacuate the Posts which are without the limits,’ &c. and this is eighteen months after the Signature of the general pacification!31 Now is it not fair to conclude, if the order was not arrived on the 13th. of August 1783, if it was not arrived on the 10th. of May 1784, nor yet on the 13th. of July, in the same Year, that in truth the order had never been given? And if it had never been given, may we not conclude that it never had been intended to be given?—From what moment is it we are to date this infraction? From that at which, with convenient speed, the order to evacuate the upper posts might have been given. No legitimate reason can be assigned why that order might not have been given as early, and at the same time as the order to evacuate New York: and all delay after this was in contravention of the Treaty.
§. 28. Was this delay merely innocent and unimportant, as to us, setting aside all considerations, but of interest and safety? 1. It cut us off from the Fur-trade, which, before the war, had been always of great importance as a branch of Commerce, and as a source of remittance32 for the payment of our debts to Great Britain: for to the injury of withholding our Posts, they added the obstruction of all passage along the Lakes and their communications. 2. It secluded us from connection with the North-Western Indians, from all opportunity of keeping up with them friendly and neighborly intercourse, brought on us, consequently, from their known dispositions, constant and expensive war, in which numbers of men, women and Children have been, and still are daily falling victims to the Scalping knife; and to which there will be no period, but in our possession of the Posts, which command their Country.
It may safely be said then that the Treaty was violated in England, before it was known in America; and in America, as soon as it was known; and that too in points so essential as that, without them, it would never have been concluded.
§.29. And what was the effect of these infractions on the Americanº mind?—On the breach of any article33 of a Treaty by the one party, the other has it’s election, to34 declare it dissolved in all it’s Articles, or to compensate itself by withholding execution of equivalent articles; or to wave notice of the Breach altogether.
Congress being informed that the British commanding officer was carrying away the negroes from New York, in avowed violation of the Treaty, and against the repeated remonstrances of General Washington, they take up the Subject on the 26th. of May 1783; they declare that it is contrary to the Treaty; direct that the proper papers be sent to their Ministers Plenipotentiary in Europe to remonstrate and demand reparation, and that, in the meantime General Washington continue his Remonstrances to the British commanding officer, and insistº on the discontinuance of the measure. [see Document No. 29.]
§. 30. The State of Virginia, materially35 affected by this infraction,36 because the labourers, thus carried away, were chiefly from thence, while heavy debts were now to be paid to the very nation which was depriving them of the means, took up the subject in Dec. 1783. that is to say 7. months after that particular infraction,36 and 4 months after the first refusal to deliver up the Posts, and, instead of arresting the debts absolutely, in reprisal, for their negroes carried away, they passed [D.5.] the act to revive and continue the several acts for suspending the issuing executions on certain judgments until Dec. 1783, that is to say, they revived till their next meeting, two acts passed during the war, which suspended all voluntary and fraudulent assignments of debt, and, as to others, allowed real and personal estate to be tendered in discharge of executions: the effect of which was37 to relieve the body of the debtor from prison, by authorizing him to deliver property in discharge of the debt.—In June following 13 months after the violation last mentioned; and after a second refusal by the British commanding officerº to deliver up the posts, they come to the Resolution No. 30. reciting specially the infraction respecting their Negroes, instructing their Delegates in Congress to press for reparation, and resolving that the Courts shall be opened to British suits, as soon as reparation shall be made, or otherwise as soon as Congress shall judge it indispensably necessary. And in 1787, they passed [E.7.] the act to repeal so much of all and every act or acts of assembly as prohibits the recovery of British debts; and at the same time [E. 6.] the act to repeal part of an act for the protection and encouragement of the commerce of nations acknowledging the independence of the United States of America. The former was not to be in force till the evacuation of the posts and reparation for the Negroes carried away: the latter requires particular explanation.—The small supplies of European goods which reached us during the war, were frequently brought by Captains of Vessels and supercargoes, who, as soon as they had sold their goods, were to return to Europe with their Vessels. To persons under such circumstances, it was necessary to give a summary remedy for the recovery of the proceeds of their Sale. This had been done by the law for the protection and encouragement of the commerce of Nations acknowledging the independence of the United States, which was meant but as a temporary thing to continue while the same circumstances continued: On the return of Peace, the supplies of foreign Goods were made, as before the war, by Merchants resident here. There was no longer reason to continue to them the summary remedy which had been provided for the transient vendor of goods: and indeed it would have been unequal to have given the resident Merchant instantaneous judgment against a farmer or tradesman, while the farmer or tradesman could pursue those who owed him money, but in the ordinary way, and with the ordinary delays. The British creditor had no such unequal privilege while we were under British government, and had no title to it in justice, or by the Treaty, after the war. When the legislature proceeded then to repeal the law as to other nations, it would have been extraordinary to have continued it for Great Britain.
§. 31. South Carolina was the second State which moved in consequence of the the British infractions, urged thereto by the desolated condition in which their armies had left that country, by the debts they owed, and the almost entire destruction of the means of paying them. They passed [D.7. 20.] 1784 March 26. An ordinance respecting the recovery of debts, suspending the recovery of all actions, as well American as British, for 9 months, and then allowing them to recover payment at four equal and annual instalments only; requiring the debtor in the meantime to give good security for his debt, or otherwise refusing him the benefit of the Act, by
[D.21.] 1787. Mar. 28. An act to regulate the recovery and payment of debts, and prohibiting the importation of Negroes, they extended the instalments a year further in a very few cases. I have not been able to procure the two following acts, [D.14.] 1785. Oct. 12. An act for regulating sales under executions, and for other purposes therein mentioned: and
[D.22.] 1788. Nov. 4. An Act to regulate the payment and recovery of debts, and to prohibit the importation of Negroes for the time therein limited; and I know nothing of their effect, or their existence, but from your letter, which says their effect was to deliver property in execution in relief of the body of the debtor, and still further to postpone the instalments. If, during the existence of material infractions on the part of Great Britain, it were necessary to apologize for these modifications of the Proceedings of the debtor, grounds might be found in the peculiar distresses of that State, and the liberality with which they had complied with the recommendatory Articles, notwithstanding their sufferings might have inspired other dispositions, having pardoned every body, received every body, restored all confiscated lands not sold, and the prices of those sold.
§. 32. Rhode Island next acted on38 the British infractions39 and imposed modifications in favor of such Debtors as should be pursued by their creditors, permitting them to relieve their bodies from execution by the payment of paper money, or delivery of Property. This was the effect of
[D.12.] 1786. March, An act to enable any Debtor in Jail on execution, at the suit of any Creditor, to tender real, or certain specific Articles of personal estate, and
[D.16.] 1786, May, An Act making paper money a legal tender. But observe that this was not till three years after the infractions by Great Britain, and repeated and constant refusals of compliance on their part.
§. 33. New Jersey did the same thing by
[D.13.] 1786. Mar. 23rd. An Act to direct the modes of proceedings on writs of fieri facias, and for transferring lands and chattels for payment of debts. And
[D.18.] 1786. May 26. An act for striking and making current 100,000£. in Bills of credit to be let out on loan and
[D.17.] 1786 June 1. An act for making Bills40 emitted by the act for raising a revenue of £31,259-5 per annum for 25 Years legal tender, and
§. 34. Georgia by [D.19.] 1786 Aug. 14. An act for emitting the sum of £50,000 in bills of credit, and for establishing a fund for the redemption, and for other purposes therein mentioned, made paper money also a legal tender.
These are the only States which appear, by the acts cited in your letter, to have modified the recovery of Debts. But I believe that north Carolina also emitted a sum of paper money, and made it a tender in discharge of executions; though, not having seen the act, I cannot affirm it with certainty. I have not mentioned, because I do not view the act of Maryland [D.15.] 1786. Nov. c. 29. for the settlement of public accounts &c. as a modification of the recovery of Debts. It obliged the British subject before he could recover what was due to him within the State, to give bond for the payment of what he owed therein. It is reasonable that every one, who asks justice, should do justice: and it is usual to consider the property of a foreigner in any country, as a fund appropriated to the payment of what he owes in that country exclusively. It is a care which most Nations take of their own citizens, not to let the property which is to answer their demands, be withdrawn from it’s Jurisdiction, and send them to seek it in foreign Countries, and before foreign tribunals.41
§. 35. Withº respect to the obstacles thus opposed to the British creditor, besides their general justification, as being produced by the previous infractions on the part of Great Britain, each of them admits of a special apology. They are 1. Delay of Judgment. 2. Liberating the body from execution on the delivery of Property. 3. admitting executions to be discharged in paper money. As to the 1st. Let it be considered that from the nature of the commerce carried on between these States and Great Britain, they were generally kept in debt: that a great part of the country, and most particularly Georgia, South Carolina, North Carolina, Virginia, New York, and Rhode Island, had been ravaged by an enemy, moveable property carried off, houses burnt, lands abandoned, the proprietors forced off into exile and poverty. When the peace permitted them to return again to their lands, naked and desolate as they were, was instant payment practicable? The contrary was so palpable, that the British creditors themselves were sensible that, were they to rush to judgment immediately against their debtors, it would involve the Debtor in total ruin, without relieving the Creditor. It is a fact, for which we may appeal to the knowledge of one member at least of the British administration of 1785. that the Chairman of the North American Merchants, conferring on behalf of those Merchants with the American ministers then in London, was so sensible that time was necessary, as well to save the Creditor as Debtor, that he declared there would not be a moments hesitation, on the part of the Creditors,42 to allow payment by instalments annually for 7. years: and that this arrangement was not made, was neither his fault nor ours.
To the necessities for some43 delay in the payment of debts, may be added, the British44 commercial regulations, lessening our45 means of payment, by prohibiting us from carrying, in our own bottoms, our own produce46 to their47 dominions in our neighborhood, and excluding valuable branches of it from their home markets by prohibitory duties. The means of payment constitute one of the motives to purchase, at the moment of purchasing. If these means are taken away,48 by the creditor himself, he ought not in conscience to complain of a mere retardation of his debt, which is the effect of his own act, and the least injurious of those it is capable of producing. The instalment acts before enumerated, have been much less general, and for a shorter term, than what the Chairman of the american Merchants thought reasonable.49 Most of them required the Debtor to give security, in the meantime to his creditor, and provided complete indemnification of the delay, by the payment of interest, which was enjoined in every case.
§. 36.º The 2nd. species of obstacle, was, the admitting the debtor to relieve his body from imprisonment by the delivery of lands or goods to his creditor. And is this idea original, and peculiar to us? Or whence have we taken it? From England, from Europe, from natural right and reason: for it may be safely affirmed that neither natural50 right nor reason subjects the body of a man to restraint for debt. It is one of the abuses introduced by Commerce and credit, and which even the most commercial Nations have been obliged to relax51 in certain cases. The Roman Law, the principles of which are52 the nearest to natural reason of those of any municipal code hitherto known, allowed imprisonment of the body in criminal cases only, or those wherein the party had expressly submitted himself to it. The french Laws allow it only in criminal or commercial cases. The laws of England, in certain descriptions of cases (as Bankrupcy) release the Body. Many of the United States do the same, in all cases, on a cession of property by the debtor. The levarifacias, an execution affecting only the profits of lands, is the only one allowed in England in certain cases: The Elegit, another execution of that and this country, attaches first on a man’s chattels, which are not to be sold, but to be delivered to the pl. on a reasonable appraisement, in part of Satisfaction for his debt, and if not sufficient, one half only of his lands are then to be delivered to the plaintiff, till the profits shall have satisfied him. The tender Laws of these States were generally more favorable than the execution by elegit, because they not only gave, as that does, the whole property in chattels, but also the whole property in the lands, and not merely the profits of them. It is therefore an execution framed on the model of the English Elegit, or rather an amendment of that writ,53 taking away, indeed, the election of the party against the body of his Debtor, but giving him, in exchange for it, much more complete remedy against his lands.54—Let it be observed too, that this proceeding was allowed against citizens as well as foreigners: and it may be questioned whether the Treaty is not satisfied, while the same measure is dealt out to British subjects as to foreigners of all other Nations, and to natives themselves. For it would seem that all a Friend can expect is to be treated as a native citizen.
§. 37.º The 3rd. Obstacle was the allowing paper money to be paid for goods sold under execution. The complaint on this head is only against Georgia, South Carolina, Jersey and Rhode Island: and this obstruction like the two others, sprung out of the peculiar nature of the war. For those will form very false conclusions, who reason, as to this war, from the circumstances which have attended other wars, and other nations. When any nation of Europe is attacked by another, it has neighbors with whom it’s accustomary commerce goes on, without interruption; and it’s commerce with more distant Nations is carried on by sea in foreign bottoms at least,55 under protection of the laws of Neutrality. The produce of it’s soil can be exchanged for money as usual, and the stock of that medium of circulation is not at all diminished by war; so that property sells as readily and as well, for real money, at the close, as at the commencement of the war. But how different was our case. On the North and South were our enemies: on the West, desarts inhabited by Savages in league with them: on the East, an ocean of 1,000 leagues, beyond which indeed were nations who might have purchased the produce of our soil, and have given us real money in Exchange, and thus kept up our stock of money, but who were deterred from coming to us by threats of war on the part of our enemies, if they should presume to consider us as a people intitled to partake the benefit56 of that law of war which allows commerce with neutral Nations. What were the consequences? The stock of hard money which we possessed in an ample degree, at the beginning of the war, soon flowed into Europe for supplies of arms, ammunition and other necessaries, which we were not in the habit of manufacturing for ourselves. The produce of our soil, attempted to be carried in our own bottoms to Europe, fell two thirds of it into the hands of our enemies, who were Masters of the Sea, the other third illy sufficed to procure the necessary implements of war, so that no returns of money supplied the place of that which had gone off. We were reduced then to the resource of a paper medium, and that completed the exile of the hard money; so that, in the latter stages of the war, we were for years together without seeing a single coin of the precious metals in circulation. It was closed with a stipulation that we should pay a large mass of debt in such coin. If the whole soil of the United States had been offered for sale for ready coin, it would not have raised as much as would have satisfied this stipulation. The thing then was impossible; and reason and authority declare ‘Si l’empechement est reel, il faut donner du tems; car nul n’est tenu à l’impossible.’ Vattel L. 4. §. 51. We should with confidence have referred the case to the Arbiter proposed by another Jurist, who lays it down that a party ‘Non ultra obligari, quam in quantum facere potest; et an possit, permittendum alterius principis, qua boni viri, arbitrio.’ Bynk. Q. J. P. L. 2. c. 10. §. Quid. That four of the States should resort, under such circumstances, to very small emissions of paper money, is not wonderful: that all did not, proves their firmness57 under sufferance, and that they were disposed to bear whatever could be borne rather than contravene, even by way of equivalent, stipulations which had been authoritatively entered into for them. And even in the four States which emitted paper money, it was in such small sums, and so secured as to58 suffer only a shortlived and not great depreciation of value; nor did they continue it’s quality as a tender,59 after the first paroxysms of distress were over.60—Here too it is to be observed that Natives were to receive61 this species of payment, equally with British subjects.
So that when it is considered that the other party had broken the Treaty from the beginning, and that too in points which lessened our ability to pay their Debts, it was a proof of the moderation of our Nation to make no other use of the opportunity of retaliation presented to them, than to indulge the Debtors with that time for discharging their Debts which their distresses called for, and the interests and the reason of their Creditors approved.62
§. 38.º It is to be observed that during all this time, Congress, who alone possessed the power of Peace and War, of making Treaties, and, consequently, of declaring their infractions, had abstained from every public declaration, and had confined itself to the resolution of May 26. 1783, and to repeated efforts through their Minister plenipotentiary at the court of London, to lead that Court into a compliance on their part, and reparation of the Breach they had committed. But the other party now laid hold of those very proceedings of our States which their previous infractions had produced, as a ground for further refusal, and inverting the natural order of cause and effect, alledged that these proceedings of ours were the causes of the infractions which they had committed Months and Years before. Thus the British Minister for foreign Affairs, in his answer of Feb. 28. 1786, to Mr. Adams’s Memorial, says ‘The engagements entered into by Treaty ought to be mutual and equally binding on the respective contracting parties. It would, therefore, be the height of folly, as well as injustice, to suppose one party alone obliged to a strict observance of the public faith, while the other might remain free to deviate from it’s own engagements, as often as convenience might render such deviation necessary, though at the expense of it’s own national credit and importance. I flatter myself however, Sir, that Justice will speedily be done to British creditors; and I can assure you, Sir, that whenever America shall manifest a real intention to fulfil her part of the Treaty, Great Britain will not hesitate to prove her sincerity, to cooperate in whatever points depend upon her for carrying every article of it into real and complete effect.’ Facts will furnish the best commentary on this letter. Let us pursue them.
The Secretary for foreign affairs of the United States, by order of Congress, immediately wrote circular letters to the Governors of the severalº States, dated May 3rd. 1786 [No. 31.] to obtain63 information how far they had complied with the Proclamation of Jan. 14. 1784. and the RECOMMENDATION accompanying it; and April 13. 1787. Congress, desirous of removing every pretext which might continue to cloak the inexecution of the Treaty, wrote a circular letter to the several States, in which, in order to produce more surely the effect desired, they demonstrate that Congress alone possess the right of interpreting, restraining, impeding, or counteracting the operation and execution of treaties, which, on being constitutionally made, become, by the Confederation, a part of the law of the land, and as such, independent of the will and power of the legislatures: that, in this point of view, the state acts, establishing provisions relative to the same objects, and incompatible with it, must be improper: resolving that all such acts now existing ought to be forthwith repealed, as well to prevent their continuing to be regarded as violations of the Treaty, as to avoid the disagreeable necessity of discussing their validity; recommending, in order to obviate all future disputes and questions, that every state, as well those which had passed no such acts, as those which had, should pass an act, repealing in general terms, all acts and parts of acts repugnant to the Treaty, and encouraging them to do this, by informing them that they had the strongest assurances that an exact compliance with the treaty on our part, would be followed by a punctual performance of it on the part of Great Britain.
§. 39.º In consequence of these letters New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, Delaware, Maryland, Virginia, and North Carolina, passed the acts No: 18.104.22.168.22.214.171.124.40. New Jersey and Pennsylvania declared that no law existed with them repugnant to the Treaty [see Documentsº 41.42.43]. Georgia had no law existing against the Treaty. South Carolina, indeed, had a law existing, which subjected all persons º foreign or native [No. 44.] to certain modifications of recovery and payment. But the liberality of her conduct on the other points, is a proof she would have conformed in this also, had it appeared that the fullest conformity would have moved Great Britain to compliance, and had an express repeal been really necessary.
§. 40.º For indeed all this was supererogation. It resulted from the instrument of Confederation among the States that TREATIES made by Congress according to the Confederation were SUPERIOR to the LAWS of the States. The circular letter of Congress had declared and demonstrated it, and the several States, by their acts and explanations before mentioned had shewn it to be their own sense, as we may safely affirm it to have been the general sense of those, at least, who were of the profession of the law. Besides the proofs of this, drawn from the act of Confederation itself, the declaration of Congress, and the acts of the States beforementioned, the same principle will be found acknowledged in several of the Documents hereto annexed for other purposes. º Thus in Rhode Island, Governor Collins, in his letter No. 20. says ‘The treaty, in all it’s absolute parts, has been fully complied with, and to those parts that are merely recommendatory, and depend upon the legislative discretion, the most candid attention hath been paid,’ plainly implying that the absolute parts did not depend upon the legislative discretion. Mr. Channing, the Attorney for the United States in º that State No. 19. speaking of an act passed before the Treaty, says ‘This act was considered by our Courts as annulled by the Treaty of Peace, and subsequent to the ratification thereof, no proceedings have been º had thereon.’ The Governor of Connecticut in his letter No. 18. says ‘The VIth. Article of the Treaty was immediately observed on receiving the same with the proclamation of Congress, the Courts of Justice adopted it as a principle of law. No further prosecutions were instituted against any person who came within that Article and all such prosecutions as were then pending, were discontinued.’ Thus prosecutions going on under a law of the State, were discontinued by the Treaty operating as a repeal of the law. In Pennsylvania, Mr. Lewis, º Attorney for the United States, says in his letter No. 60. ‘The Judges have uniformly, and without hesitation declared in favor of the Treaty, on the ground of it’s being the supreme law of the land. On this ground, they have not only discharged attainted Traitors from Arrests, but have frequently declared that they were entitled by the Treaty to protection.’64 The case of the Commonwealth v. Gordon Jan. 1788, Dallas’s Rep. 233. is a proof of this. In Maryland, in the case of Mildred v. Dorsey, cited in your letter E.4. a law of the State, made during the war, had compelled those who owed debts to British subjects, to pay them into the treasury of that State. This had been done by Dorsey before the date of the Treaty, yet the Judges of the State General court65 decided that the treaty not only repealed the law for the future, but for the past also, and decreed that the def. should pay the money over again to the British Creditor. In Virginia, Mr. Monroe, one of the Senators of that State in Congress, and a Lawyer ofº eminence, tells us No. 52, that both court and counsel there avowed the opinion that the treaty would controul any law of the State opposed to it. And the legislature itself, in an act of October 1787. c. 36, concerning monies carried into the public Loan Office, in payment of British debts, use these expressions, ‘And whereas it belongs not to the legislature to decide particular questions, of which the judiciary have cognizance, and it is therefore unfit for them to determine whether the payments so made into the loan office be good or void between the Creditor and Debtor.’ In New York Mr. Harrison, Attorney for the United º States in that District, assures us No. 45 that the act of 1782, of that State, relative to debts due to persons within the enemy’s lines, was, immediately after the Treaty, restrained by the Superiour courts of the State, from operating on British Creditors, and that he did not know a single instance to the contrary: a full proof that they considered the Treaty as a law of the land paramount the law of their State.
§. 41. The very case of Rutgers v. Wadington [E.8.] which is a subject of complaint in your letter, is a proof that the courts consider the Treaty as paramount the laws of the States. Some parts of your information, as to that case, have been inexact. The State of New York had, during the war, passed an act [C. 16.] declaring that in any action by the proprietor of a house or tenement against the occupant for rent or damage, no military order should be a justification: and May 4th. 1784. after the refusal of the British to deliver up the Posts in the State of New York, that legislature revived the same act [C. 19.]. Wadington, a British subject had occupied a Brew-house in New York, belonging to Rutgers, an American, while the British66 were in possession of New York. During a part of the time he had only permission from the Quarter master General: for another part he had an order of the Commanding officer to authorize his possession.67 After the evacuation of the city, Rutgers, under the authority of this law of the State, brought an action against Wadington for rent and damages, in the Mayor’s court of New York. Wadington pleaded the Treaty, and the Court declared the Treaty a justification, in opposition to the law of the State, for that portion of the time authorized by the commanding officer, his authority being competent: and gave judgment for that part, in favor of the defendant. But for the Time he held the house under permission of the Quarter master General only, they gave judgment against the defendant, considering the permission of that Officer as incompetent, according to the regulations of the existing power. From this part of the Judgment the def. appealed. The first part, however, was an unequivocal decision of the superior Authority of the Treaty over the law. The latter part could only have been founded in an opinion of the sense of the Treaty in that part of the VIth. Article which declares ‘There shall be no future prosecutions against any person for the part he may have taken in the war, and that no person should on that account suffer any future loss or damage in their property,’ &c. They must have understood this as only protecting actions which were conformable with the laws and authority existing at the time and place. The tenure of the def. under the Quarter master General was not so conformable. That under the commanding Officer was. Some may think that Murders, and other crimes and offences,68 characterised as such by the Authority of the time and place where committed, were meant to be protected by this paragraph of the Treaty: and perhaps, for peace sake, this construction may be the most convenient. The Mayor’s Court, however, seems to have revolted at it. The def. appealed, and the Question would have been authoritatively decided by the superior Court, had not an amicable compromise taken placeº between the parties. See Mr. Hamilton’s statement of this case No: 46.
§. 42. The same kind of doubt brought on the arrest of John Smith Hatfield in New Jersey, whose case [E.9.] is another ground of complaint in your letter. A refugee, sent out by the British as a Spy, was taken within the American lines, regularly tried by a Court Martial, found guilty, and executed. There was one Ball, an inhabitant of the American part of Jersey, who, contrary to the laws of his Country, was in the habit of secretly supplying the British camp in Staten Island with Provisions. The first time Ball went over, after the execution of the Spy, of which it does not appear he had any knowledge, and certainly no agency in his prosecution, John Smith Hatfeild, a refugee also from Jersey, and some others of the same description, seized him, against the express orders of the British commanding officer, brought him out of the British lines, and Hatfeild hung him with his own hands. The British Officer sent a message to the Americans disavowing this act, declaring that the British had nothing to do with it, and that those who had perpetrated the crime ought alone to suffer for it. The right to punish the guilty individual seems to have been yielded by the one party, and accepted by the other in exchange for that of retaliation on an innocent person; an exchange which humanity would wish to see habitual. The criminal came afterwards into the very neighborhood, a member of which he had murdered. Peace indeed had now been made, but the magistrate, thinking, probably, that it was for the honest Soldier and Citizen only, and not for the Murderer, and supposing with the mayor’s Court of New York, that the paragraph of the Treaty against future prosecutions meant to cover authorized acts only, and not Murders and other atrocities, disavowed by the existing authority, arrested Hatfeild. At the Court which met for his Trial, the witnesses failed to attend. The Court released the criminal from confinement, on his giving the Security required by law for his appearance at another Court. He fled: and you say that ‘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.’ But your information in this, Sir, has not been exact. The recognizances are not forfeited. His friends, confident in the opinion of their counsel and the integrity of the Judges, have determined to plead the Treaty, and not even give themselves the trouble of asking a release from the legislature: and the case is now depending. See the letter of Mr. Boudinot, memberº of Congress for Jersey No.47.
§. 43. In Georgia, Judge Walton, in a charge to a Grand Jury, saysº ‘The State of Rhode Island having acceded to the Federal Constitution, the Union and Government have become complete.—To comprehend the extent of the General Government, and to discern the relation between that and those of the States, will be equally our interest and duty. The Constitution, laws, and Treaties of the Union are paramount.’69 And in the same State, in their last federal circuit court, we learn from the public papers that in a case wherein the plaintiffs were Brailsford and others, British subjects, whose debts had been sequestered (not confiscated) by an act of the State during the war, the Judges declared the Treaty of peace a repeal of the act of the State, and gave Judgment for the Plaintiffs.
§. 44.º The integrity of these opinions and Proceedings of the several courts should have shielded them from the insinuations hazarded against them. In pa. 9. and 10. it is said ‘That, during the War, the legislatures passed laws to confiscate the estates of the Loyalists, to enable debtors to pay into the State Treasuries paper money, then exceedingly depreciated in discharge of their debts.’ And pa. 24. ‘The dispensations of law by the State Courts, have been as unpropitious to the subjects of the Crown as the legislative acts of the different assemblies.’ Let us compare, if you please, Sir, these unpropitious opinions of our State courts with those of foreign lawyers writing on the same subject. ‘Quod dixi de actionibus recte publicandis, ita demum obtinet, se, quod subditi nostri hostibus nostris debent, Princeps a subditis suis revera exegerit. Si exegerit, recte solutum est; si non exegerit, pace facta, reviviscit juspristinum creditoris.’—‘Secundum haec inter gentes fere convenit, ut nominibus bello publicatis, pace deinde factâ, exacta censeantur perisse, et maneant extincta; non autem exacta reviviscant et restituantur veris creditoribus.’ Bynk. Quest. J.P.L. 1. c. 7. But what said the Judges of the State court of Maryland, in the case of Mildred and Dorsey? That a debt, forced from an American debtor into the Treasury of his sovereign, is not extinct, but shall be paid over again to his British creditor. Which is most propitious, the unbiassed foreign Jurist, or the American Judge charged with dispensing justice with favor and partiality? But from this you say there is an appeal. Is that the fault of the Judge, or the fault of any body? Is there a country on earth, or ought there to be one, allowing no appeal from the first Errors of their courts? And if allowed from errors, how will those from just judgments be prevented? In England, as in other countries, an appeal is admitted to the party thinking himself injured; and here had the judgment been against the British creditor, and an appeal denied, there would have been better cause of complaint than for not having denied it to his adversary. If an illegal judgment be ultimately rendered on the appeal, then will arise the right to question it’s propriety.
§. 45. Again it is said pa. 34. ‘In one State 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.’ If by the Supreme federal Court be meant the Supreme court of the United States, I have had their records examined in order to know what may be the case here alluded to; and I am authorized to say there neither does nor ever did exist any cause, before that Court, between a British subject and a citizen of the United States. See the certificate of the Clerk of theº Court. No: 48. If by the Supreme federal court, be meant one of the Circuit courts of the United States, then which Circuit, in which State, and what case is meant? In the course of inquiries I have been obliged to make, to find whether there exists any case, in any district of any circuit court of the United States, which might have given rise to this complaint, I have learnt that an action was brought to issue and argued in the circuit Court of the United States in Virginia at their last term, between Jones a British subject pl. and Walker an American def. wherein the question was the same as in the case of Mildred and Dorsey, to wit, Whether a payment into the Treasury, during the war, under a law of the State, discharged the Debtor? One of the Judges retiring from Court in the midst of the argument, on the accident of the death of an only Son, and the case being primae impressionis in that Court, it was adjourned for consideration till the ensuing term. Had the two remaining Judges felt no motive but of predilection to one of the parties had they considered only to which party their wishes were propitious, or unpropitious, they possibly might have decided that question on the spot. But learned enough in their Science to see difficulties which escape others, and having characters and consciences to satisfy, they followed the example so habitually and so laudably set by the Courts of your country, and of every country where law, and not favor, is the rule of decision, of taking time to consider. Time and consideration are favorable to the right cause, precipitation to the wrong one.
§. 46. You say again pa. 29. ‘The few attempts to recover British debts in the county Courts of Virginia have universally failed; and these are the Courts wherein from the smallness of the sum, a considerable number of debts can only be recovered.’ and again pa. 34. ‘In the same State, the county Courts (which alone can take cognizance of debts of limited amount) have uniformly rejected all suits instituted for the recovery of Sums due to the subjects of the Crown of Great Britain.’ In the 1st. place, the county courts, till of late, have had exclusive jurisdiction only of sums below £10. and it is known that a very inconsiderable proportion of the British debt consists in demands below that Sum. A late law, we are told, requires that actions below £30. shall be commenced in those courts; but allows at the same time an appeal to correct any errors into which they may fall. In the 2d. place, the evidence of Gentlemen who are in the way of knowing the fact,º [No. 52. 53.] is that, though there have been accidental checks in some of the subordinate Courts, arising from the chicanery of the debtors, and sometimes, perhaps, a moment of error in the Court itself, yet these particular instances have been immediately rectified either in the same, or the superior court, while the great mass of Suits for the recovery of Sums due to the subjects of the Crown of Great Britain have been uniformly sustained to judgment and execution.
§. 47. A much broader assertion is hazarded pa. 29. ‘In some of the Southern States, there does not exist a single instance of the recovery of a British debt in their courts, tho’ many years have expired since the establishment of peace between the two Countries.’ The particular States are not specified. I have therefore thought it my duty to extend my inquiries to all the States which could be designated under the description of Southern, to wit, Maryland, and those to the South of that.
As to Maryland, the joint certificate of the Senators and Delegates of theº State in Congress, the letter of Mr. Tilghman, a Gentleman of the law in the same State, and that of Mr. Gwinn Clerk of their General Court, prove that British suits have been maintained in the Superior and inferior Courts throughout the State without any obstruction, that British claimants have, in every instance, enjoyed every facility in the tribunals of Justice, equally with their own citizens, and have recovered in due course of law, and remitted large debts, as well under contracts previous, as subsequent, to the war.
In Virginia, the letters of Mr. Monroe and Mr. Giles members of Congressº from that State, and lawyers of eminence in it, prove that the Courts of70 law in that State have been open and freely resorted to by the71 British Creditors, who have recovered and levied their monies without obstruction: for we have no right to consider as obstructions the dilatory pleas of here and there a debtor, distressed perhaps for time, or even an accidental error of opinion in a subordinate court, where such pleas have been overruled, and such errors corrected in a due course of proceeding marked out by the laws in such cases. The general fact suffices to shew that the assertion under examination cannot be applied to this State.
In North Carolina, Mr. Johnston, one of the Senators for that State, tells us he has heard indeed but of few suits brought by British creditors in that State: but that he never heard that any one had failed of a recovery, because he was a British subject; and he names a particular case of Elmesly v. Lee’s executors ‘of the recovery of a British debtº in the Superior court at Edenton.’ See Mr. Johnston’s letter No. 54.
Inº South Carolina we learn from No. 55. of particular judgments rendered, and prosecutions carried on, without obstacle, by British creditors, and that the Courts are open to them there as elsewhere. As to the modifications of the execution heretofore made by the State law, having been the same for foreigner and citizen, a court would decide whether the Treaty is satisfied by this equal measure; and if the British creditor is privileged by that against even the same modifications to which citizens and foreigners of all other nations were equally subjected, then the law imposing them was a mere nullity.
Inº Georgia, the letter of the Senators and Representatives in Congress, No. 56. assures us that tho’ they do not know of any recovery of a British debt in their State, neither do they know of a denial to recover since the ratification of the Treaty; the creditors having mostly preferred amicable settlement; and that the federal Court is open and unobstructed to British creditors there, as in any other of the United States;72 and this is further proved by the late recovery of Brailsford and others before cited.
§. 48. You say more particularly of that State pa. 25. ‘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.’ No Judge, no case, no time, is named. Imputations on the Judiciary of a country are too serious to be neglected. I have thought it my duty therefore to spare no endeavors to find on what fact this censure was meant to be affixed. I have found that Judge Walton of Georgia, in theº summer of 1783. the Definitive Treaty not yet signed in Europe, much less known and ratified here, set aside a writ in the case of Thompson a British subject v. Thompson, assigning for reasons 1. That there was no law authorizing a subject of England to sue a citizen of that State: 2. That the war had not been definitively concluded; or 3. If concluded, the treaty not known to, or ratified by, the Legislature; nor 4. was it in any manner ascertained how those debts were to be liquidated.’ With respect to the last reason, it was generally expected that some more specific arrangements, as to the manner of liquidating, and times of paying British debts would have been settled in the Definitive º Treaty. No. 58 shews that such arrangements were under contemplation.73 And the Judge seems to have been of opinion that it was necessary the Treaty should be definitively concluded, before it could become a law of the land, so as to change the legal character of an alien enemy, who cannot maintain an action, into that of an alien friend, who may. Without entering into the question, Whether, between the Provisional and Definitive Treaties, a subject of either party could maintain an action in the Courts of the other, (a question of no consequence, considering how short the interval was, and this, probably, the only action essayed) we must admit that if the Judge was right in his opinion, that a definitive conclusion was necessary, he was right in his consequence that it should be made known to the legislature of the State, or in other words to the State, and that, till that notification, it was not a law authorizing a subject of England to sue a Citizen of that State. The subsequent doctrine of the same Judge Walton, with respect to treaties, when duly completed, that they are paramount the laws of the several States, as has been seen in his charge to a Grand Jury before spoken of (§.43.) will relieve your doubts whether the ‘principle still continues in that State of the continuance of war between the two Countries.’
§. 49. The latter part of the quotation before made, merits notice also;74 to wit, where, after saying not a single instance exists of the recovery of a British debt, it is added, ‘Though many years have expired since the establishment of Peace between the two Countries.’ It is evident from the preceding testimony, that many Suits have been brought, and with effect: yet it has often been matter of surprize that more were not brought, and earlier, since it is most certain that the Courts would have sustained their actions, and given them Judgments. This abstinence on the part of the creditors has excited a suspicion that they wished rather to recur to the Treasury of their own Country; and, to have colour for this, they would have it believed that there were obstructions here to the bringing their Suits. Their testimony is in fact the sole, to which your court, till now, has given access. Had the opportunity now presented, been given us sooner, they should sooner have known that the Courts of the United States,75 whenever the Creditors would chuse that resource, and would press, if necessary, to the highest tribunals, would be found as open to their suits, and as impartial to their subjects, as theirs to ours.
§. 50.º There is an expression in your letter pa. 7. That ‘British creditors have not 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.’ And again in pa. 8. ‘In many of the States, the subjects of the Crown, in endeavoring to obtain the restitution of their forfeited Estates and Property, have been treated with indignity.’ From which an inference might be drawn, which I am sure you did not intend, to wit, that the Creditors have been deterred from resorting to the Courts by popular tumults, and not protected by the laws of the Country. I recollect to have heard of one or two attempts by popular collections, to deter the prosecution of British claims. One of these is mentioned in No. 49. but these were immediately on the close of the war, while it’s passions had not yet had time to subside, and while the ashes of our houses were still smoaking. Since that, say for many years past, nothing like popular interposition on this subject, has been heard of in any part of our land. There is no country, which is not sometimes subject to irregular interpositions of the people. There is no country able at all times to punish them. There is no country which has less of this to reproach itself with than the United States, nor any where the laws have a more regular course, or are more habitually and cheerfully acquiesced in. Confident that your own observation and information will have satisfied you of this Truth, I rely that the inference was not intended, which seems to result from these expressions.
§. 51.º Some notice is to be taken as to the great deficiencies in collection urged on behalf of the British Merchants. The course of our commerce with Great Britain was ever for the Merchant there to give his correspondent here a year’s credit: so that we were regularly indebted from a Year to a Year and a half’s amount of our exports. It is the opinion of judicious Merchants that it never exceeded the latter term, and that it did not exceed the former at the commencement of the war. Let the holders then of this debt be classed into 1st. Those who were insolvent at that time. 2nd. Those solvent then, who became insolvent during the operations of the war, a numerous Class. 3rd. Those solvent at the close of the war, but insolvent now. 4th. Those solvent at the close of the war, who have since paid or settled satisfactorily with their Creditors, a numerous class also. 5th. Those solvent then and now, who have neither paid, nor made satisfactory arrangements with their Creditors. This last class, the only one now in question, is little numerous, and the amount of their debts but a moderate proportion of the aggregate which was due at the commencement of the war; insomuch that it is the opinion that we do not owe to Great Britain, at this moment of sperate Debts, old and new, more than a Year, or a Year and a quarter’s exports, the ordinary amount of the debt resulting from the common course of dealings.
§. 52. Inº drawing a comparison between the proceedings of Great Britain and the United States, you say pa. 35. ‘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 Courts of law of the former country, the citizens of the United States have experienced without exception the same protection and impartial distribution of Justice as the subjects of the Crown.’ No nation can answer for perfect exactitude of proceedings in all their inferior courts. It suffices to provide a Supreme Judicature, where all error and partiality will be ultimately corrected. With this qualification, we have heretofore been in the habit of considering the administration of Justice in Great Britain as extremely pure. With the same qualification, we have no fear to risk every thing which a nation holds dear on the assertion,76 that the administration of Justice here will be found equally pure. When the citizens of either party complain of the judiciary proceedings of the other, they naturally present but one side of the case to view, and are, therefore, to be listened to with caution. Numerous condemnations have taken place in your courts, of vessels taken from us, after the expirations of the terms of one and two months stipulated in the armistice. The State of Maryland has been making ineffectual efforts for nine Years, to recover a Sum of £55,000 sterling, lodged in the Bank of England previous to the war. A Judge of the King’s Bench, lately declared in the case of Greene an American citizen v. Buchanan & Charnock, British subjects, that a citizen of the United States, who has delivered £43,000 sterling worth of East India goods to a British subject at Ostend, receiving only £18,000 in part payment, is not entitled to maintain an action for the Balance in a court of Great Britain, though his debtor is found there, is in custody of the court, and acknowledges the Facts. These cases appear strong to us. If your Judges have done wrong in them, we expect redress. If right, we expect explanations. Some of them, have already been laid before your court. The others will be so in due time. These, and such as these, are the smaller matters between the two nations, which, in my letter of Dec. 15. I had the honor to intimate that it would be better to refer for settlement through the ordinary channel of our ministers, than embarrass the present important discussions with them. Such cases will be constantly produced by a collision of interests in the dealings of individuals, and will be easily adjusted by a readiness to do right on both sides, regardless of party.
§. 53. Itº is made an objection to the proceedings of our legislative and judiciary bodies that they have refused to allow Interest to run on debts during the course of the war. The decision of the right to this rests with the Judiciary alone; neither the legislature nor the executive having any authority to intermeddle.
The administration of Justice is a branch of the Sovereignty over a country, and belongs exclusively to the Nation inhabiting it. No foreign power can pretend to participate in their Jurisdiction, or that their citizens received there, are not subject to it. When a cause has been adjudged according to the rules and forms of the country, it’s justice ought to be presumed. Even error in the highest court, which has been provided as the last means of correcting the errors of others, and whose decrees are therefore subject to no further revisal, is one of those inconveniencies flowing from the imperfection of our faculties, to which every Society must submit: because there must be somewhere a last resort, wherein contestations may end. Multiply Bodies of revisal as you please, their number must still be finite, and they must finish in the hands of fallible men as Judges. If the error be evident, palpable, et in re minime dubiâ, it there indeed assumes another form, it excites presumption that it was not mere error, but premeditated wrong, and the foreigner, as well as native, suffering by the wrong, may reasonably complain, as for a wrong committed in any other way. In such case, there being no redress in the ordinary forms of the country, a foreign Prince may listen to complaint from his Subjects injured by the adjudication, may inquire into it’s principles to prove their criminality, and, according to the magnitude of the wrong, take his measures of redress by reprisal, or by a refusal of right on his part. If the denial of Interest, in our case, be justified by law, or even if it be against law, but not in that gross, evident, and palpable degree, which proves it to flow from the wickedness of the Heart, and not error of the Head in the Judges, then is it no cause for just complaint, much less for a refusal of right, or self-redress in any other way. The reasons on which the denial of interest is grounded, shall be stated summarily, yet sufficiently to justify the integrity of the Judge, and even to induce a presumption that they might be extended to that of his Science also, were that material to the present object.
§. 54. The Treaty is the text of the law in the present case, and it’s words are that there shall be no lawful77 impediment to the recovery of bonâ fide Debts. Nothing is said of Interest on those debts: and the sole question is Whether, where a Debts is given, Interest thereon flows from the general principles of the Law? Interest is not a part of the debt, but something added to the debt by way of damage for the detention of it. This is the definition of the English lawyers themselves, who say ‘Interest is recovered by way of damages, ratione detentionis debiti.’ 2 Salk. 622. 623. Formerly all interest was considered as unlawful, in every Country of Europe: it is still so in Roman catholic Countries, and Countries little commercial. From this, as a general rule, a few special cases are excepted. In France particularly the exceptions are those of minors, marriage-portions, and money, the price of lands. So thoroughly do their laws condemn the allowance of Interest, that a party who has paid it voluntarily, may recover it back again whenever he pleases. Yet this has never been taken up as a gross and flagrant denial of Justice, authorizing national complaint against those Governments. In England also, all interest was against law, till the Stat. 37. H.8. c.9. The growing spirit of commerce no longer restrained by the principles of the Roman church then first began to tolerate it. The same causes produced the same effect in Holland, and, perhaps, in some other commercial and acatholic countries. But even in England, the allowance of interest is not given by express law but rests on the discretion of Judges and Juries, as the arbiters of damages. Sometimes the Judge has enlarged the Interest to 20 per cent per annum (1. Chanc. Rep. 57) in other cases he fixes it habitually, one per cent lower than the legal rate (2. Tr. Atk. 343.) and in a multitude of cases he refuses it altogether. As for instance, no Interest is allowed,
1. On arrears of rents, profits, or annuities (1. Chanc. rep. 184. 2. P. W. 163. ca. temp. Talbot. 2.)
2. For maintenance, Vin. abr. Interest. c. 10.
3. For monies advanced by Exrs. 2. Abr. eq. 531.15.
4. For goods sold and delivered. 3. Wilson. 206.
5. On book debts, open accounts, or simple contracts. 3. Chan. rep. 64. Freem. Ch. rep. 133. Dougl. 376.
6. For money lent without a note. 2. Stra. 910.
7. On an inland Bill of Exchange, if no protest is taken. 2. Stra. 910.
8. On a Bond after 20. Years. 2. Vern. 458, or after a tender.
9. On decrees, in certain cases. Freem. Ch. rep. 181.
10. On judgments in certain cases, as battery and slander. Freem. Ch. rep. 37.
11. On any decrees or judgments in certain Courts, as the Exchequer chamber. Douglass 752.
12. On costs. 2. Abr. eq. 530.7.
And we may add, once for all, that there is no instrument or title to debt so formal and sacred, as to give a right to interest on it under all possible circumstances. The words of Lord Mansfeild, Dougl. 753. where he says ‘That the question was what was to be the rule for assessing the damage, and that, in this case, the Interest ought to be the measure of the damage, the action being for a debt, but that in a case of another sort, the rule might be different:’ His words Dougl. 376. ‘That Interest might be payable in cases of delay ‘If a Jury, in their discretion shall think fit to allow it.’ And the doctrine in Giles v. Hart 2. Salk 622. that damages, or interest, are but an accessary to the debt, which may be barred by circumstances, which do not touch the debt itself, suffice to prove that interest is not a part of the debt, neither comprehended in the thing, nor in the term, that words, which pass the debt, do not give interest necessarily, that the interest depends altogether on the discretion of the Judges and Jurors, who will govern themselves by all existing circumstances, will take the legal interest for the measure of their damages, or more, or less, as they think right, will give it from the date of the contract, or from a year after, or deny it altogether, according as the fault or the sufferings of the one or the other party shall dictate. Our laws are, generally, an adoption of yours; and I do not know that any of the States have changed them in this particular. But there is one rule of your and our law, which, while it proves that every title of debt is liable to a disallowance of Interest under special circumstances, is so applicable to our case, that I shall cite it as a text, and apply to it the circumstances of our case. It is laid down in Vin. Abr. Interest c. 7. and 2. Abr. eq. 529.3; and elsewhere in these words. ‘Where, by a general and national calamity, nothing is made out of Lands, which are assigned for payment of interest, it ought not to run on during the time of such calamity.’ This is exactly the case in question. Can a more general national calamity be conceived than that universal devastation, which took place in many of these States during the war? Was it ever more exactly the case any where, that nothing was made out of the lands, which were to pay the Interest? The produce of those lands, for want of the opportunity of exporting it safely, was down to almost nothing in real money. e.g. Tobacco was less than a dollar the hundred weight. Imported articles of Clothing or Consumption, were from 4. to 8. times their usual price. A Bushel of Salt was usually sold for 100 ℔. of Tobacco. At the same time these lands, and other property, in which the money of the British creditor was vested, were paying high taxes for their own protection, and the debtor, as nominal holder, stood ultimate insurer of their value to the creditor, who was the real proprietor, because they were bought with his money. And who will estimate the value of this insurance, or say what would have been the forfeit, in a contrary event of the war? Who will say that the risk of the Property was not worth the interest of it’s price?—General calamity then prevented profit, and consequently stopped interest, which is in lieu of profit. The creditor says indeed he has laid out of his money; he has therefore lost the use of it. The Debtor replies that if the creditor has lost, he has not gained it: that this may be a question between two parties, both of whom have lost. In that case the courts will not double the loss of the one, to save all loss from the other. That it is a rule of natural, as well as municipal, law, that, in questions de damno evitando, melior est conditio possidentis.—If this maxim be just, where each party is equally innocent, how much more so, where the loss has been produced by the act78 of the Creditor? For a nation as a Society, forms a moral person, and every member of it is personally responsible for his Society. It was the act of the lender, or of his nation which annihilated the profits of the money lent; he cannot then demand profits which he either prevented from coming into existence, or burnt or otherwise destroyed after they were produced. If then, there be no instrument or title of debt so formal and sacred as to give right to interest under all possible circumstances, and if circumstances of exemption, stronger than in the present case, cannot possibly be found, then no instrument or title of debt, however formal or sacred, can give right to interest under the circumstances of our case. Let us present the question in another point of view. Your own law forbade the payment of Interest when it forbade the receipt of American produce into Great Britain, and made that produce fair prize on it’s way from the debtor to the creditor, or to any other for his use or reimbursement. All personal access between creditor and debtor was made illegal: and the debtor, who endeavored to make a remitment of his debt, or interest, must have done it three times, to ensure it’s getting once to hand: for two out of three vessels were generally taken by the creditor nation, and sometimes by the Creditor himself, as many79 of them turned their trading vessels into Privateers. Where no place has been agreed on for the payment of a debt, the laws of England oblige the Debtor to seek his Creditor wheresoever he is to be found within the Realm. Coke Lit. 210. b. but do not bind him to go out of the Realm in search of him. This is our law too. The first act, generally80 of the Creditors and their Agents here, was, to withdraw from the United States with their books and papers. The creditor thus withdrawing from his debtor, so as to render payment impossible, either of the principal or interest, makes it like80 the common case of a tender and refusal of money, after which interest stops both by your laws and ours.ºWe see too, from the letter of Mr. Adams, June 16. 1786. No. 57. that the British Secretary for foreign affairs was sensible, that a British statute having rendered criminal all intercourse between the debtor and creditor, had placed the article of Interest on a different footing from the Principal. And the letter of our Plenipotentiaries to Mr. Hartley, the British Plenipotentiary for forming the Definitive TreatyºNo. 58. shews that the omission to express interest in the Treaty was not merely an oversight of the Parties; that it’s allowance81 was considered by our Plenipotentiaries as a thing not to be intended in the Treaty, was declared against by Congress, and that declaration communicated to Mr. Hartley. After such an explanation, the omission is a proof of acquiescence, and an intention not to claim it.—It appears then, that the Debt and Interest on that Debt, are separate things in every country, and under separate rules. That in every country a debt is recoverable, while, in most countries, interest is refused in all cases; in others, given, or refused, diminished, or augmented, at the discretion of the Judge; no where given in all cases indiscriminately, and, consequently, no where so incorporated with the debt, as to pass with that ex vi termini, or otherwise to be considered as a82 determinate and vested Thing.
While the taking interest on money has thus been considered in some countries83 as morally wrong in all cases, in others made legally right but in particular cases, the taking profits from lands, or rents in lieu of profits, has been allowed every where, and at all times, both in morality and law. Hence it is laid down as a general rule, Wolf §. 229. ‘Si quis fundum alienum possidet domini est, quantum valet usus fundi, et possessoris quantum valet ejus cultura et cura.’ But even in the case of lands restored by a Treaty, the arrears of profits or rents are never restored, unless they be particularly stipulated. ‘Si res vi pacis restituendae, restituendi quoque sunt fructus à die concessionis,’ say Wolf §. 1224. and Grotius ‘Cui pace res conceditur, ei et fructus conceduntur à tempore concessionis, non utro.’ L. 3. c. 20. §. 22. To place the right to interest on money on a level with the right to profits on land, is placing it more advantageously than has been hitherto authorized: and if, as we have seen, a stipulation to restore lands does not include a stipulation to restore the back profits, we may certainly conclude a fortiori that the restitution of debts does not include an allowance of back interest on them.84
These reasons, and others like these, have probably operated on the different courts to produce decisions that ‘No interest should run during the time this general and national calamity lasted.’ And they seem sufficient, at least to rescue their decision from that flagrant denial of right, which can alone authorize one nation to come forward with complaints against the judiciary proceedings of another.
§. 55. The States have85 been uniform in the allowance of Interest before, and since the war, but not of that claimed during the war. Thus we know by [E. 1.] the case of Neate’s executors v. Sands in New York, and Mildred v. Dorsey in Maryland, that in those States, interest during the war disallowed by the Courts. By [D.8.] 1784. May. the act is relating to debts due to persons who have been, and remained within the enemy’s power or lines during the late war. That Connecticut left it to their court of chancery to determine the matter according to the rules of Equity, or to leave it to referees: by [E.2.] the case of Osborne v. Mifflin’s executors, and [E.3.] Hare v. Allen, explained in the letter of Mr. Rawle,º Attorney of the United States, No. 59. and by the letter of Mr. Lewis, º Judge of the District court of the United States, No. 60., that in Pennsylvania the rule is that where neither the creditor nor any agent, was within the State, no interest was allowed: where either remained, they give interest. In all the other States I believe it is left discretionary in the Courts and Juries. In Massachusetts, the practice has varied. In Nov. 1784, they instruct their delegates in Congress to ask the determination of Congress, whether they understood the word ‘Debts’ in the Treaty as including interest? and whether it is their opinion that interest during the war should be paid? And at the same time they pass [D.9.] the act directing the courts to suspend rendering Judgment for any interest that might have accrued between April 19. 1775. and January 20. 1783. But in 1787. when there was a general compliance enacted through all the United States, in order to see if that would produce a counter-compliance, their legislature passed the act repealingº all laws repugnant to the Treaty No. 33. and their courts, on their part, changed their rule relative to interest during the war, which they have uniformly allowed since that time. The Circuit court of the United States at their Session at in 1790, determined in like manner that interest should be allowed during the war. So that on the whole we see, that, in one State, interest during the war is given in every case; in another it is given wherever the Creditor, or any agent for him, remained in the country, so as to be accessible; in the others, it is left to the Courts and Juries to decide according to their discretion and the circumstances of the case.
§. 56. I have, by way of Preliminary, placed out of the present discussion, all acts and proceedings prior to the Treaty of Peace, considering them as settled by that instrument, and that the then State of things was adopted by the parties,
with such alterations only as that instrument provided.
I have then taken up the subsequent acts and proceedings of which you complain, as infractions, distributing them according to their subjects: to wit,
- I. Exile and Confiscations.
- II. Debts.
- III. Interest.
- I. Exile and Confiscations. After premising that these are lawful acts of war;
- I have shewn that the Vth. Article was recommendatory only,
- it’s stipulations being, not to restore the confiscations and exiles,
- but to recommend to the State legislatures to restore them.
- that this word, having but one meaning, establishes the intent of the parties and moreover
- that it was particularly explained by the american Negotiators, that the legislatures would be free to comply with the recommendation or not, and probably would not comply.
- That the British Negotiators so understood it:
- that the British Ministry so understood it:
- and the members of both houses of parliament as well those who approved as who disapproved the Article.
- I have shewn that Congress did recommend earnestly and bonâ fide:
- that the States refused or complied, in a greater or less degree, according to circumstances, but more of them and in a greater degree than was expected:
- and that Compensation by the British treasury, to British sufferers, was the alternative of her own choice, our negotiators having offered to do that if she would compensate such losses as we had sustained by acts unauthorized by the modern and moderate principles of war.
- II. Before entering on the subject of Debts, it was necessary
- 1. To review the British infractions, and refer them to their exact dates.
- To shew that the carrying away of the Negroes preceded the 6th. of May 1783.
- That instead of evacuating the Upper posts with all convenient speed,
- no order had been received for the evacuation Augt. 13. 1783.
- none had been received May 10. 1784.
- none had been received July 13. 1784.
- from whence I conclude none had ever been given:
- and thence that none had ever been intended.
- In the latter case, this infraction would date from the Signature of the treaty,
- but founding it on the not giving the order with convenient speed,
- it dates from April 1783, when the order for evacuating New York was given:
- as there can be no reason, why it should have been inconvenient to give this order as early.
- but founding it on the not giving the order with convenient speed,
- The Infraction then respecting the Upper Posts was before the Treaty was known in america:
- that respecting the Negroes, was as soon as it was known.
- I have observed that these infractions were highly injurious;
- the first, by depriving us of our fur-trade, profitable in itself, and valuable as a means of remittance for paying the Debts:
- by intercepting our friendly and neighborly intercourse with the indian nations, and consequently keeping us in constant, expensive and barbarous war with them
- the second, by withdrawing the cultivators of the soil, the produce of which was to pay the debts.
- the first, by depriving us of our fur-trade, profitable in itself, and valuable as a means of remittance for paying the Debts:
- 1. To review the British infractions, and refer them to their exact dates.
- 2. After fixing the date of the British infractions, I have shewn
- That as they preceded so they produced the acts on our part complained of as obstacles to the recovery of the Debts:
- That when one party breaks any stipulations of a treaty, the other is free to break it also, either in the whole, or in equivalent parts, at it’s pleasure:
- That congress having made no election,
- four of the States assumed separately to modify the recovery of debts
- 1. by indulging their citizens with longer and more practicable times of paymt:
- 2. by liberating their bodies from execution, on their delivering property to the Creditor, to the full amount of his demand, on a fair appraisement, as practised always under the Elegit.
- 3. by admitting, during the first moments of the non-existence of coin among us, a discharge of executions, by payment in paper money.
- four of the States assumed separately to modify the recovery of debts
- That the first of these acts of retaliation was in Dec. 1783. nine months after the infractions committed by the other party:
- And all of them were so moderate, of so short duration, the result of such necessities, and so produced, that we might with confidence have referred them alterius principis, quâ boni viri, arbitrio.86
- 3. That, induced at length, by assurances from the British court, that they would concur in a fulfilment of the treaty87
- Congress, in 1787, declared to the States it’s will that even the appearance of obstacle raised by their acts should no longer continue,
- and required a formal repeal of every act of that nature; and to avoid question
- required it as well from those who had not, as from those who had passed such acts: which was complied with so fully that no such laws remained in88 any State of the Union, except one;
- and even that one could not have forborne, if any symptom of compliance from the opposite party had rendered a reiterated requisition from Congress important.
- Congress, in 1787, declared to the States it’s will that even the appearance of obstacle raised by their acts should no longer continue,
- 4. That, indeed, the requiring such a repeal, was only to take away pretext: for
- That it was at all times perfectly understood that Treaties89 Controuled the laws of the States:
- the Confederation having made them obligatory on the whole;
- Congress having so declared and demonstrated them:
- the legislatures and executives of most of the States having admitted it.
- and the Judiciaries, both of the separate and general governments, so deciding.
- That the Courts are open every where upon this principle:
- That the British Creditors have, for some time, been in the habit and course of recovering their debts at law
- That the class of sperate and unsettled debts, contracted before the war, forms now but a small proportion of the original amount.
- That the integrity and independence of the Courts of Justice in the United States are liable to no reproach,
- Nor have popular tumults furnished any ground for suggesting that either courts or creditors, are over-awed by them in their proceedings.
- That it was at all times perfectly understood that Treaties89 Controuled the laws of the States:
- III. Proceeding to the article of Interest, I have observed
- That the decision whether it shall, or shall not be allowed during the war, rests by our Constitution with the Courts altogether:
- That, if these have generally decided against the allowance, the reasons of their decision appear so weighty, as to clear them from the charge of that palpable degree of wrong which may authorize national complaint, or give a right of refusing execution of the treaty, by way of reprisal.
To vindicate them, I have stated shortly some of the reasons which support their opinion:
- That Interest during the war, was not expressly given by the Treaty:
- That the revival of Debts did not, ex vi termini, give interest on them:
- That interest is not a part of the debt, but damages for the detention of the debt:
- That it is disallowed habitually in most Countries, yet has never been deemed a ground of national complaint against them:
- That in England also, it was formerly unlawful in all cases:
- That at this day it is denied there in such a variety of instances, as to protect from it a great part of the transactions of life:
- That in fact there is not a single title to debt so formal and sacred, as to give a right to Interest, under all possible circumstances, either there or here:
- That of these circumstances, Judges and Jurors, are to decide in their discretion, and are accordingly in the habit of augmenting, diminishing or refusing interest in every case, according to their discretion:
- That the circumstances against the allowance are unquestionably of the strongest in our case:
- That a great national calamity, rendering the lands unproductive, which were to pay the interest, has been adjudged a sufficient cause of itself to suspend interest:
- That were both pl. and def. equally innocent of that cause, the question who should avoid loss? would be in favor of the party in possession:
- and, a fortiori, in his favor, where the calamity was produced by the act of the demandant.
- That, moreover, the laws of the party creditor, had cut off the personal access of his debtor;
- and the transportation of his produce or money to the country of the creditor, or to any other for him:
- and where the Creditor prevents payment both of Principal and Interest the latter, at least, is justly extinguished:
- That the departure of the Creditor, leaving no agent in the Country of the Debtor, would have stopped interest of itself:
- the Debtor not being obliged to go out of the Country to seek him:
- That the Brith. Minister was heretofore sensible of the weight of the objections to the claim of Intt.
- That the Declarations of Congress, and our Plenipotentiaries, previous to the Definitive Treaty, and the silence of that instrument, afford proof that Interest was not intended on our part nor insisted on, on the other:
- That, were we to admit interest on money to equal favor with profits on land, arrears of profits would not be demandable in the present case, nor consequently arrears of interest.90
- And, on the whole, without undertaking to say what the law is, which is not the province of the Executive,
- We say that the reasons of those Judges who deny interest during the war appear sufficiently cogent,
- to account for their opinion on honest principles:
- to exempt it from the charge of palpable and flagrant wrong, in re minimé dubiá:
- and to take away all pretence of withholding execution of the treaty, by way of reprisal, for that cause.
- We say that the reasons of those Judges who deny interest during the war appear sufficiently cogent,
§. 57. I have now, Sir, gone through the several acts and proceedings enumerated in your Appendix, as infractions of the Treaty, omitting, I believe, not a single one, as may be seen by a Table hereto subjoined, wherein every one of them, as marked and numbered in your Appendix, is referred to the Section of this Letter in which it is brought into view; and the result has been, as you have seen.
1. That there was no absolute stipulation to restore antecedent confiscations, and that none subsequent took place:
3. That the decisions of courts and Juries against the claims of Interest, are too probably founded, to give cause for questioning their integrity. These things being evident, I cannot but flatter myself, after the assurances received from you of his Britannic Majesty’s desire to remove every occasion of misunderstanding from between us, that an end will now be put to the disquieting Situation of the two Countries, by as complete execution of the Treaty as circumstances render practicable at this late day. That it is to be done so late, has been the source of heavy losses of blood and treasure to the United States. Still our desire of friendly accommodation is, and has been constant. No ‘lawful impediment has been opposed to the prosecution of the just rights of your Citizens.’ And if any instances of unlawful impediment have existed in any of the inferior tribunals, they would, like other unlawful proceedings, have been overruled on appeal to the higher Courts. If not overruled there, a complaint to the government, would have been regular, and their interference probably effectual. If your Citizens would not prosecute their rights, it was impossible they should recover them, or be denied recovery: and till a denial of right through all the tribunals, there is no ground for complaint, much less for a refusal to comply with solemn stipulations, the execution of which is too important to us ever to be dispensed with. These difficulties being removed from between the two nations, I am persuaded the interests of both will be found in the strictest friendship. The considerations which lead to it, are too numerous and forcible to fail of their effect: and that they may be permitted to have their full effect, no one wishes more sincerely than he who has the honor to be, with sentiments of the most perfect esteem and respect, Sir, Your most obedient and most humble servant,
Table of References
Translations of the Quotations
Tr (MHi:AM); in George Taylor’s hand except for some marginal headings, signature, and enclosed “Translations of the Quotations” by TJ; brackets inserted by TJ and Taylor. PrC (DLC). Tr (DNA: RG 59, SDR). Dft (DLC: TJ Papers, 74:12820–12856); in TJ’s hand except for a portion in Taylor’s hand (see note 14 below). Recorded in SJL with note: “on treaty of peace.”; in SJPL: “Correspondence between Th:J. & Hammond on inexecn. of treaty.”
TJ appended to this letter 60 documents, some of which he took from government files and some of which he personally solicited, and all of which are summarized below. Full texts of those written to TJ may be found in this edition in appropriate chronological order. All of these enclosures are 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, 216–37.
No. 1. Titles of 8 British acts directed at the rebellious colonies.
No. 2. A clause from 16 G. III, chap. 5 § 4, providing for the detaining of persons found on board prize vessels until the seizing ship enters a “port of Great Britain or Ireland, or in any port of America, not in rebellion,” where the captives were to be freed.
No. 3. Guy Carleton and Robert Digby to George Washington, 19 Mch. 1783, transmitting for Congress a copy of preliminary peace treaty signed at Paris on 30 Nov. 1782.
No. 4. Extract of Guy Carleton to Robert R. Livingston, 26 Mch. 1783, acknowledging receipt of resolution of Congress adopted upon receipt of word that Vice Admiral D’Estaing had been ordered to inform maritime stations of the cessation of hostilities hoping that Carleton might do the same. Carleton awaits word of “official certainty” from England.
No. 5. Robert Digby to Robert R. Livingston, 27 Mch. 1783, acknowledging receipt of resolution of Congress regarding cessation of hostilities on the seas and a copy of Livingston’s letter to Carleton. Digby asks that British prisoners be released before he reciprocates. He recommends that American vessels avoid sailing until he receives official word to withdraw his cruisers.
No. 6. List of acts in appendices to Hammond to TJ, 5 Mch. 1792, in chronological order through 21 Mch. 1783. MS (DLC); at top of text in TJ’s hand: “No. 6.” Mistakenly filed at June 1783.
No. 7. Richard Oswald to John Adams, Benjamin Franklin, and John Jay, 4 Nov. 1782, repeating demands for restitution of property confiscated from Loyalists and for a general amnesty. See Richard B. Morris, ed., Papers of John Jay (New York, 1980), ii, 399–400.
No. 8. John Adams, Benjamin Franklin, and John Jay to Richard Oswald, 7 Nov. 1782, in reply to No. 7, denying willingness to compensate for confiscated Loyalist property without British restitution for destruction of American property, and stating that the U.S. had “already agreed to an amnesty more extensive than justice required, and full as extensive as humanity could demand.” See same, p. 410–11.
No. 9. Extracts of John Adams’ diary entries, 11, 17, 29, and 30 Nov. 1782, dealing with the issue of compensation for property lost during the war and the fisheries question, and ending with a temporary resolution and the signing of the treaty. See Adams, Diary description begins Diary and Autobiography of John Adams, ed. L. H. Butterfield and others, Cambridge, 1961, 4 vols. description ends , iii, 51–2, 54–8, 79–82.
No. 10. Extracts of Benjamin Franklin to Robert R. Livingston, 14 Oct. and 5 Dec. 1782, reporting on negotiations regarding restitution and the fisheries. Extract of Franklin to Richard Oswald, 26 Nov. 1782, reporting on American attitudes and actions regarding loss of property to British and proposing an article for the treaty providing for British restitution for lost American property.
No. 11. Undated extracts from Franklin’s journal regarding conversations with Oswald on issue of compensation for lost property.
No. 12. Extract of John Adams, Benjamin Franklin, and John Jay to President of Congress, 10 Sep. 1783, recommending immediate implementation of Article v of the peace treaty, whereby Congress agreed to ask the states to make restitution to Loyalists for confiscated property.
No. 13. An act of Virginia, 18 Oct. 1784, prohibiting future confiscations.
No. 14. Proclamation of Benjamin Harrison, 26 July 1784, calling upon Virginians to refrain from mistreating former Loyalists in the state.
No. 15. Extract of George Read, Jr., to TJ, 4 Nov. 1790, regarding fair treatment of Loyalists and refugees in Delaware since the treaty of peace. See volume 18: 7–9.
No. 16. Resolution by Pennsylvania Executive Council, 16 Dec. 1790, directing the public sale of two lots forfeited to Pennsylvania “by the attainder of Harry Gordon for high treason.”
No. 17. Message of George Clinton to New York Legislature, 30 Jan. 1784, transmitting articles of treaty and requesting compliance therewith, and resolutions of the New York Senate and Assembly, 31 Mch. 1784, declining to comply with Article v.
No. 18. Samuel Huntington to John Jay, 12 July 1786, certifying Connecticut’s full compliance with the peace treaty.
No. 19. Extract of William Channing to TJ, 24 Nov. 1790, certifying compliance with the peace treaty in Rhode Island with the exception of the failure to repeal the banishment law. See volume 18: 67–8.
No. 20. John Collins to John Jay, 4 Sep. 1786, reporting that the Treaty of Paris “has been fully complied with” in Rhode Island.
No. 21. Extract of Guy Carleton to George Washington, 6 Apr. 1783, announcing receipt of dispatches from England informing him of the peace with France, Spain, and the Netherlands.
No. 22. Steuben to Frederick Haldimand, 3 Aug. 1783, informing him that he is ordered to confer with him on the transfer of posts in the U.S. now occupied by the British, and that he is en route to Quebec for that purpose.
No. 23. Frederick Haldimand to Steuben, 13 Aug. 1783, in which he regrets to notify the American commander that he is not authorized to transfer posts or to treat with him on that subject until he shall receive word of the ratification of peace and instructions to carry out terms specified therein.
No. 24. Steuben to George Washington, 23 Aug. 1783, concerning a meeting with Haldimand in which the British commander asserted he had been ordered to cease hostilities only, and that he would not “evacuate an inch of ground” until he received orders to do so.
No. 25. George Clinton to Frederick Haldimand, 19 Mch. 1784, requesting a schedule for the evacuation of the post at Niagara pursuant to Article VII of the peace treaty.
No. 26. Frederick Haldimand to George Clinton, 10 May 1784, claiming that “some accident, which has befallen the packet or messenger” has prevented his receiving official notification of the peace treaty and consequent orders, and that he cannot transfer any posts until he receives orders from England.
No. 27. William Hull to Frederick Haldimand, 12 July 1784, requesting a precise schedule for the evacuation by the British of American posts.
No. 28. Frederick Haldimand to William Hull, 13 July 1784, enclosing his letter to Henry Knox wherein he explains why he cannot consider evacuating the posts under his command. Frederick Haldimand to Henry Knox, 13 July 1784, stating his inability to discuss transferring posts until he receives specific orders from England to do so. He has been notified of the definitive treaty of peace, however.
No. 29. Resolution of Congress, 26 May 1783, instructing American ministers in Europe and George Washington to protest the “carrying away” of Negroes by departing British troops in violation of the peace treaty and demanding that Guy Carleton cease permitting Negroes belonging to American citizens to leave New York.
No. 30. Resolution of Virginia General Assembly, 22 June 1784, regarding unsuccessful attempts to recover slaves under protection of the British in New York. The Assembly instructs its delegates to Congress to request a remonstrance from that body and reparations from the British government, and informs Congress that it will not comply with the terms of the peace treaty until reparations are paid or “Congress shall judge it indispensably necessary.”
No. 31. John Jay to the Governors of the Several States, 3 May 1786, requesting information on the extent of compliance with Congress’ request to honor the terms of the peace treaty in each state.
No. 32. An act of New Hampshire, 15 Sep. 1786, providing for the unencumbered collection of debts by British subjects, the recovery of property confiscated between 30 Nov. 1782 and 14 Jan. 1784, and the repeal of several acts that violate the terms of the peace treaty.
No. 33. An act of Massachusetts, 30 Apr. 1787, repealing acts that violate the peace treaty.
No. 35. An act of Connecticut, 10 May 1787, repealing all state laws that violate the terms of the peace treaty and instructing courts in the state to decide cases in compliance with the same.
No. 36. An act of New York, 22 Feb. 1788, similar to that passed by Connecticut.
No. 37. An act of Delaware, 20 Oct. 1787, similar to that passed by Connecticut.
No. 38. An act of Maryland, 15 May 1787, declaring the treaty of peace the “supreme law” in the state.
No. 39. An act of Virginia, 12 Dec. 1787, repealing laws impeding the recovery of debts by British creditors only after the British surrender American posts and return Negroes taken away or provide compensation for the same.
No. 40. An act of North Carolina, 22 Dec. 1787, similar to that passed by Connecticut.
No. 41. William Livingston to John Jay, 15 June 1786, certifying New Jersey’s strict compliance with the proclamation of Congress of 14 Jan. 1784.
No. 42. Extract of Richard Stockton to TJ, 11 Dec. 1790, informing him that New Jersey had enacted no laws contrary to the peace treaty and that only one judicial decision had affected the rights of British subjects. See volume 18: 151.
No. 43. Resolution of Pennsylvania General Assembly, 3 Mch. 1788, declaring that no laws of that state were in any way repugnant to the peace treaty.
No. 44. William Moultrie to John Jay, 21 June 1786, reporting that South Carolina had created no obstacles aimed specifically at the recovery of debts owed British creditors, that the state had returned confiscated property even though the value of slaves taken away far exceeded the value of British property confiscated, and that the state had been quite liberal in the time it had allowed Loyalists to settle their affairs.
No. 45. Richard Harison to TJ, 4 Dec. 1790, explaining the nature of New York’s debt recovery act and the courts’ restraint of it after the signing of the peace treaty. See volume 18: 125–30.
No. 46. Alexander Hamilton to TJ, 19 Apr. 1792, stating the facts in the case of Rutgers v. Waddington.
No. 47. Elias Boudinot to TJ, 11 Apr. 1792, describing the events surrounding the case of John Smith Hatfield, a New Jersey Loyalist charged after the treaty of peace with murder during the war.
No. 48. Affidavit of Samuel Bayard, 25 Apr. 1792.
No. 49. John Henry, Charles Carroll, John F. Mercer, Samuel Sterret, Josiah Seney, William Vans Murray, Philip Key, and Upton Sheredine to TJ, 26 Apr. 1792, explaining Maryland’s compliance with the peace treaty as regards debt collection.
No. 50. Extract of William Tilghman to TJ, 26 Apr. 1792, relaying facts attesting to compliance of Maryland with the terms of the treaty of peace.
No. 51. John Gwinn to William Vans Murray, 23 Apr. 1792, citing examples of judicial action since the peace treaty whereby British creditors recovered debts owed them by citizens of Maryland.
No. 52. James Monroe to TJ, 1 May 1792, describing several examples of British recovery of debts in Virginia courts.
No. 53. William B. Giles to TJ, 6 May 1792, similar to no. 52, but citing different examples.
No. 54. Samuel Johnston to TJ, 13 Apr. 1792, stating that few cases for debt collection had been brought by British subjects in North Carolina, and describing the case of Bayard v. Singleton.
No. 55. Thomas Pinckney to TJ, 9 May 1792, relaying facts in one debt recovery case from South Carolina, and attesting to the general compliance with the peace treaty there. Extract of Edward Rutledge to Thomas Pinckney, 26 May 1792, citing several examples of British debt recovery in South Carolina.
No. 56. William Few, John Gunn, Abraham Baldwin, and Francis Willis to TJ, 25 Apr. 1792, asserting that no suits have been brought by British creditors for recovery of debts because all have been settled without judicial process.
No. 57. Extract of John Adams to John Jay, 16 June 1785, concerning a discussion with Lord Carmarthen concerning the issue of interest on debts during the course of the war, with the suggestion that it not be allowed.
No. 58. Extract of U.S. Peace Commissioners to David Hartley, 17 July 1783, requesting a delay of three years in collection of debts and a waiver of interest accrued during the war.
No. 59. Extract of William Rawle to TJ, 9 Apr. 1792, regarding case of Hoare v. Allen and the issue of interest on debts owed British creditors.
No. 60. William Lewis to TJ, 1 Jan. 1791, concerning federal courts and the question of interest on British debts. See volume 18: 461–71.
TJ’s letter to George Hammond is widely regarded as one of his finest state papers because of the skill with which it is argued, the mastery it displays of the main points at issue, and the thoroughness with which it refutes the leading arguments advanced in the British minister’s letter of 5 Mch. 1792. Samuel F. Bemis, The American Secretaries of State and their Diplomacy, 10 vols. (New York, 1927–1929), ii, 32, describes TJ’s letter as his “greatest diplomatic note.” This judgment is reiterated in 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. 134–40; concurred in by Malone, Jefferson description begins Dumas Malone, Jefferson and his Time, Boston, 1948-1981, 6 vols. description ends , ii, 412; and accepted with some reservations in Peterson, Jefferson description begins Merrill D. Peterson, Thomas Jefferson and the New Nation, New York, 1970 description ends , p. 453–4. Less positive evaluations of TJ’s reply to Hammond are given in A. L. Burt, The United States, Great Britain and British North America from the Revolution to the Establishment of Peace after the War of 1812 (New Haven, 1940), p. 121, and Charles R. Ritcheson, Aftermath of Revolution: British Policy Toward the United States, 1783–1795 (Dallas, Texas, 1969), p. 238, both of which deal sympathetically with British policy toward the United States after the Revolutionary War. For contrasting interpretations of the historical background of the Anglo-American dispute over the Treaty of Paris, see 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. 1–121, and Ritcheson, Aftermath of Revolution, p. 1–227.
TJ prepared this letter with his characteristic care and attention to detail. In anticipation of the resumption of negotiations between Great Britain and the United States on violations of the Treaty of Paris, he began as early as the summer of 1790 to collect information on alleged state infractions of this agreement (TJ to Richard Harison and other District Attorneys, 12 Aug. 1790). After receiving Hammond’s 5 Mch. 1792 statement of the official British position on this subject, he took voluminous notes on the British minister’s letter and made a detailed outline of a proposed response that was identical in substance to the letter printed above (Notes on Hammond’s Letter and Outline of TJ’s Response, MS in DLC: TJ Papers, 98: 16750–69; undated). In order to buttress his rebuttal of Hammond’s charges, he gathered a wide range of supporting evidence from the archives of the Continental Congress, the responses to his 1790 circular to federal district attorneys on state actions affecting the treaty, and the replies of congressmen in Philadelphia to his inquiries about various allegations made by the British minister. The resultant document reiterated his longstanding belief that American infractions of the peace treaty were justifiable responses to Britain’s refusal to restore the American slaves evacuated from New York in 1783 and to relinquish the western posts it continued to hold after that year in internationally recognized American territory (TJ to John Jay, 23 Apr. 1786). Accordingly, TJ’s letter repudiated the stance taken by his predecessor in an equally comprehensive report to the Continental Congress on the observance of the peace treaty, which had argued that British retention of the western posts was a legitimate response to prior American infractions of this agreement—a report TJ otherwise heavily relied on for factual information in preparing his answer to the British minister (John Jay to Congress, 13 Oct. 1786, JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774-1789, Washington, 1904-1937, 34 vols. description ends , xxxi, 781–874).
Having completed the first draft of his answer to Hammond by the middle of May, TJ then solicited comments on it from James Madison as well as the Attorney General, the Secretary of the Treasury, and the Secretary of War. Randolph and Knox apparently raised no objections to the letter (TJ to Washington, 16 May 1792; TJ to Knox, 28 May 1792). Madison and Hamilton suggested a number of revisions, many of which TJ incorporated into the final text of the letter, but these changes did not substantially alter the basic thrust of the document. Washington himself expressed approval of the letter shortly after his return to Philadelphia on 29 May from an eighteen-day trip to Mount Vernon, and it seems likely that he had conferred with TJ about this document even before making this journey (James Madison’s Notes on TJ’s Letter to Hammond, 16 May 1792; Hamilton to TJ, 20–27 May 1792; TJ to Madison, 1 June 1792). TJ thereupon submitted the letter to Hammond in the hope that it would lead to constructive negotiations between them aimed at securing British evacuation of the western posts and compensation for the slaves carried off by Sir Guy Carleton in 1783, though evidently he subsequently intimated to the British minister that compliance with the first condition alone would satisfy his demand on Britain for as complete execution of the treaty as circumstances render practicable at this late date (Hammond to Grenville, 8 June 1792, PRO: FO 4/15).
TJ’s comprehensive response to Hammond failed to resolve the longstanding Anglo-American impasse over the Treaty of Paris. Instead of entering into negotiations with TJ, Hammond forwarded this letter to Grenville with a request for further instructions. In doing so, he assured Grenville that nothing in it lessened the validity of his 5 Mch. 1792 statement of British grievances about the treaty. At the same time he noted that Hamilton had informed him that TJ’s letter did not reflect the views of the Washington administration—a duplicitous assertion by the pro-British Secretary of the Treasury that fatally compromised the Secretary of State’s negotiating position (same). Accordingly, Grenville instructed Hammond to suspend negotiations with TJ relating to the peace treaty until the British government had thoroughly reviewed TJ’s statement of the American position on this issue (Grenville to Hammond, 4 Aug. 1792, 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. 30–1). The British foreign secretary subsequently received critical analyses of TJ’s letter from British merchants and the British consul in Philadelphia. Owing, however, first to the evidence of dissension over the peace treaty at the highest levels of the American government and then to the outbreak of war with France, Grenville apparently decided that there was no need to formulate a response to TJ’s state paper. Thus, despite repeated promises to the contrary by Hammond, the British minister never submitted a reply to the letter printed above, thereby frustrating TJ’s wish to settle the conflict with Britain over the execution of the peace treaty during his tenure as Secretary of State (John Nutt and William Molleson to Grenville, 29 Aug. 1792; William Cunningham to Henry Dundas, 15 Sep. 1792; Hammond to Grenville, 3 Oct. 1792, all in PRO: FO 4/16; Phineas Bond to Grenville, 12 Oct. 1792, AHA, description begins American Historical Association description ends Annual Report, , p. 500–23; see also Hammond to TJ, 20 June, 22 Nov. 1793).
The Continental Congress received informal intelligence of the conclusion of the provisional treaty of peace in the form of Lafayette’s 5 Feb. 1783 letter to the President of Congress (Stanley J. Idzerda et al., eds., Lafayette in the Age of the American Revolution, 5 vols. [Ithaca, N.Y., 1977-], v, 84–5). Benjamin Franklin enclosed an official copy of this treaty in his 21 Jan. 1783 letter to Secretary for Foreign Affairs Robert R. Livingston (DNA: RG 360, PCC No. 82). A text of Congress’ 11 Apr. 1783 proclamation on a cessation of hostilities, which General Washington published eight days later, is in JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774-1789, Washington, 1904-1937, 34 vols. description ends , xxiv, 238–40. Congress did not actually ratify the treaty until 15 Apr. 1783 (same, p. 241–2). Henry Strachey, at the time an undersecretary of state in the Home Office, was the confidential agent whose November 1783 mission to London was referred to by TJ (Richard B. Morris, The Peacemakers: The Great Powers and American Independence [New York, 1965], p. 367–72). TJ himself was the author of the committee report on which Congress’ 14 Jan. 1784 recommendatory resolution was based (Report on Definitive Peace Treaty, [16 Dec. 1783]).
The controversy over the 3,000 to 4,000 Negroes … carried away from New York in 1783 under the authority of Sir Guy Carleton, the British commander-in-chief, stemmed from conflicting interpretations of Article vii of the peace treaty. Since most of the blacks in question had fled to the British before the signing of this agreement in response to British army proclamations offering them their freedom, Carleton maintained that they were no longer American property and hence did not have to be restored to their former masters under the provisions of Article vii. This contention was strenuously denied by Washington, the Continental Congress, and a succession of American diplomatic agents to Britain, who all insisted that the treaty required the return of these slaves, most of whom had belonged to Virginia masters. William Pitt admitted to John Adams in 1785 that Carleton’s action was an infraction of the treaty and offered to compensate the affected slaveholders, but nothing came of this offer because of the Continental Congress’ failure to provide Adams with specific information about American claims on this issue. TJ, who once asserted that payment for the disputed slaves was a mere “bagatelle” which might be secured by withholding part of the American debt to British merchants, subsequently led Hammond to believe that if the British gave up the western posts he would not insist on compensation for the slaves evacuated by Carleton. Eventually this issue was discreetly ignored in Jay’s Treaty (TJ to James Monroe, 10 May 1786; Hammond to Grenville, 8 June 1792, PRO: FO 4/15; Frederic A. Ogg, “Jay’s Treaty and the Slavery Interests of the United States,” AHA description begins American Historical Association description ends , Annual Report, , p. 275–98).
TJ shrewdly surmised that an order had never been given by the British government to evacuate the eight posts on American soil garrisoned by British troops after the conclusion of the peace treaty. In fact, owing to a wish to protect British fur traders and to prevent the outbreak of hostilities on the part of Indian tribes disaffected by British territorial concessions to the United States, Lord Sydney ordered the governor of Canada on 8 Apr. 1784—one day before Britain formally ratified the definitive peace treaty—to delay evacuation of these posts until the United States had fulfilled all of its treaty obligations. During the Nootka Sound crisis in 1790 the British government briefly considered relinquishing possession of the posts to guarantee American neutrality in the event of war with Spain, but the peaceful resolution of this dispute made this move unnecessary. Shortly before TJ wrote the above letter, Hammond received authorization from Grenville to offer evacuation of the posts in return for the creation of a neutral Indian barrier state in the Northwest Territory. But Hammond immediately recognized the impossibility of securing American acceptance of this plan and therefore never officially proposed it to the government of the United States (Grenville to Hammond, 17 Mch. 1792, 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. 25–7; Hammond to Grenville, 8 June 1792; Burt, United States, Great Britain, and British North America, p. 88–121; Andrew C. McLaughlin, “The Western Posts and the British Debts,” AHA, description begins American Historical Association description ends Annual Report, , p. 412–44).
The Marquis of Carmarthen, then British foreign secretary, was the member … of the British administration of 1785 who was thought to be familiar with TJ and John Adams’ dealings with Duncan Campbell, the Chairman of a committee of British merchants involved in the North American trade. Campbell concurred with TJ and Adams on the need for installment payments of the American debt to British merchants but disagreed with their insistence on the abatement of wartime interest (TJ to John Jay, 23 Apr. 1786). TJ’s contention that the Great Mass of Suits for the recovery of debts owed to British creditors was uniformly sustained to judgment and execution in Virginia state courts can no longer be upheld in the light of modern historical research. This research has revealed that for a variety of reasons—including lingering resentment at British wartime depredations, anger at Carleton’s refusal to return Virginia slaves, postwar economic depression, and a chronic shortage of hard money—these courts generally remained closed to British debt cases for about a decade after the conclusion of the Revolutionary War (Emory G. Evans, description begins Charles Evans, comp., American Bibliography, Chicago, 1903-1955 description ends “Planter Indebtedness and the Revolution in Virginia, 1776–1796,” WMQ description begins William and Mary Quarterly, 1892- description ends , xxviii , 349–74; Charles F. 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 , 176–81). TJ correctly surmised that many British creditors wished rather to recur to the treasury of their own country than to rely on American courts to secure payment of their debts. As early as 1785 British merchants, alarmed at the impediments the states of Maryland, Virginia, and North Carolina were interposing to the collection of debts, requested the British government to compensate them if the United States continued to neglect to enforce Article IV of the treaty of peace. As time passed and British merchants continued to experience difficulties in collecting debts in the southern states, they twice reiterated their request for compensation from the British treasury—once in 1789 and again in 1791. But on each occasion the British government failed to accede to their pleas, thereby signifying that they would have to rely on British diplomacy and American compliance with Article iv to achieve their goals (Memorial of Glasgow Merchants to Henry Dundas, 21 Oct. 1785, PRO: FO 4/3, f. 319–20; British Merchants Trading with North America to Leeds, , same, 4/7, f. 41–2; Charles R. Ritcheson, Aftermath of Revolution, p. 150).
TJ and Hammond had been personally involved for months in an effort to find a solution to the legal complications arising from one of the numerous condemnations by a British vice-admiralty court of an American vessel captured by the British after the cessation of hostilities in 1783 (see note to Hammond to TJ, 26 Nov. 1791). The state of Maryland’s long and ultimately successful struggle to gain control of the Bank of England stock acquired by the colony of Maryland before the American Revolution is well described in Jacob M. Price, “The Maryland Bank Stock Case: British-American Financial and Political Relations before and after the American Revolution,” Aubrey C. Land et al., eds, Land, Society, and Politics in Early Maryland (Baltimore, 1977), p. 3–40. TJ obtained his information about this exceedingly complicated case from two long memoranda compiled for his use on 1 Feb. 1792 by Samuel Chase, who had been employed by the Maryland legislature to prosecute the state’s claim before the English Court of Chancery (DLC: TJ Papers, 70: 12195–12204). TJ wisely did nothing more than suggest that the case of Greene … v. Buchanan & Charnock might represent a denial of impartial justice to an American citizen by a British court. In reality, the dismissal by the Court of King’s Bench in 1790 of William Green’s suit against Buchanan & Charnock to recover the proceeds from the sale of a cargo of East India goods the two British merchants had disposed of for him in Ostend was unrelated to Green’s American citizenship. Instead it hinged upon Green’s violation of 7 Geo. i c. 21, which invalidated all contracts between British subjects and foreigners that infringed upon the East India Company’s trading privileges (Summary of Green v. Buchanan & Charnock, n.d., enclosed in Phineas Bond to Grenville, 12 Oct. 1792, PRO: FO 4/16, f. 208–9; see also AHA, description begins American Historical Association description ends Annual Report, , p. 522–3). For a discussion of TJ’s relations with Green, see Editorial Note on American consul in London, at 31 May 1791.
The declaration of the Continental Congress communicated to Mr. Hartley was a 30 May 1783 instruction to the American peace commissioners in Paris to obtain the insertion in the definitive peace treaty of a clause specifically excluding the payment of wartime interest on British debts (JCC description begins Worthington C. Ford and others, eds., Journals of the Continental Congress, 1774–1789, Washington, D.C., 1904–37, 34 vols. description ends , xxiv, 375).
1. Remainder of paragraph interlined in Dft in place of five lines of canceled and illegible text.
2. In Dft TJ here canceled “I may safely appeal to yourself as a witness of.”
3. Preceding four words interlined in Dft in place of “a degree which,” canceled.
4. Preceding two words interlined in Dft in response to Madison’s comments on the draft.
5. Remainder of paragraph written in margin in Dft in place of the following, which TJ lined out in response to Hamilton’s comments on the draft: “to enumerate and comment in several parts of your letter, on all the acts of our <several> different legislatures passed during the whole course of it. I will quote a single passage of this kind from page 9. ‘During the war the respective legislatures of the U.S. passed laws to confiscate and sell, to sequester, take possession of, and lease the estates of the loyalists, 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 minors, and 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 was applied to the purposes of public buildings and improvements: in others was appropriated as rewards to individuals for military services rendered during the war, and in one instance property was mortgaged to a British creditor, was liberated from the incumbrance, by a special act of the legislature, as a provision for the representatives of the mortgagor who had fallen in battle.’ However averse to call up the disagreeable recollections of that day, the respect and duty we owe our country forbids us to suffer it to be thus placed in the wrong, when its justification is so easy. Legislative warfare was begun by the British parliament. The titles of their acts of this kind, shall be subjoined to the end of this letter. The stat. 12. G.3. c.24. for carrying our citizens charged with the offences it describes, to be tried in a foreign country; by foreign judges instead of a jury of their vicinage, by laws not our own, without witnesses, without friends or the means of making them; that of the 14. G.3. c.39. for protection from punishment those who should murder an American in the execution of a British law, were previous to our acts of EXILE, and even to the commencement of war. Their act of 14. G.3. c.19. for shutting up the harbor of Boston, and thereby annihilating, with the commerce of that city, the value of it’s property, that of 15. G.3. c.10. forbidding us to export to foreign markets the produce we had hitherto raised and sold at those markets, and thereby leaving that produce useless on our hands: that of 16. G.3. c.5. prohibiting all exports even to British markets, and making them legal prize when taken on the high seas, was dealing out confiscation, by wholesale, on the property of entire nations, which our acts, cited by you, retaliated but on the small scale of individual confiscation. But we never retaliated the 4th. section of the last mentioned act, <a section, cruel in it’s conception, irksome in it’s execution>, under which multitudes of our citizens, taken on board our vessels, were forced by starving, by periodical whippings, and by <perpetual> constant chains to become the murderers of their countrymen, perhaps of their fathers and brothers. If from this legislative warfare we turn to those scenes of active hostility which wrapped our houses in flames, our families in slaughter, our property in universal devastation, is the wonder that our legislatures did so much, or so little? Compare their situation with that of the British parliament, enjoying in ease and safety all the comforts and blessings of the earth, and hearing of these distant events as the wars of Benarés or the extermination of the Rohillas, and say with candor whether the difference of scene and scituation, would not have justified a contrary difference of conduct towards each other? §.2. But here let us drop for ever the curtain on this tragedy!”
6. In Dft TJ here canceled “there was to be any expectation from the time of it’s arrival. The Uti possidetis was the rule in.”
7. Preceding word interlined in Dft in response to Madison’s comments.
8. Preceding nine words interlined in Dft in place of “wherever found,” canceled, in response to Madison’s comments.
9. Preceding two words interlined in Dft in place of canceled and illegible word, in response to Madison’s comments.
10. Remainder of this sentence and the following sentence interlined in Dft in place of three lines of canceled and illegible text, in response to Madison’s comments.
11. In Dft TJ here interlined and canceled “circumstances which must have been known to Mr. Oswald as well as to our Negotiators, as the object of his mission must have led him to investigate our Constitution.”
12. Preceding two words interlined in Dft in place of “it would be idle to pretend,” canceled, in response to Madison’s comments.
13. Preceding two words interlined in Dft in response to Madison’s comments.
14. Starting at this section and through §23 (Future Confiscations) the Dft is in Taylor’s hand.
15. Preceding paragraph interlined in Dft in place of “Thus we see that the effect of a recommendation was perfectly understood, its results […], and their minds prepared to grant the indemnification themselves, after taking the chance of getting it from the States under the recommendation of Congress,” canceled.
16. In Dft TJ interlined remainder of sentence.
17. In Dft TJ here canceled “The policy of Great Britain has certainly not been to negotiate a right for her inhabitants to migrate into these states and become citizens” in response to Madison’s comments.
18. TJ altered this from “that they escheated” in the Dft.
19. TJ interlined preceding word in Dft in place of “three,” canceled.
20. TJ interlined preceding four words in Dft in place of “them,” canceled.
21. In Dft Taylor first wrote “excuse my answering” and then TJ altered it to read as above in response to Madison’s comments.
22. Preceding two words interlined in Dft by TJ.
23. TJ interlined this sentence in Dft.
24. Preceding word interlined in Dft by TJ.
25. Remainder of this sentence and two following sentences written in margin of Dft by TJ in response to Madison’s comments.
26. Here ends the portion of the Dft in Taylor’s hand.
27. Preceding three words interlined in Dft in place of canceled and illegible passage.
28. In Dft TJ here canceled “but evidently declined by theirs.”
29. Remainder of sentence written in margin in Dft.
30. In the margin of all texts TJ wrote the original of this quotation: “Lorsqu’on n’a point marqué de terme pour l’accomplissement du traité, et pour l’execution de chacun des articles, le bon sens dit que chaque point doit être executé aussitot qu’il est possible. C’est sans doute ainsi qu’on l’a entendu.”
31. In Dft TJ here canceled “and this is withdrawing the garrisons from every post within the U.S. with all convenient speed” in response to Madison’s comments.
32. In Dft TJ first wrote “one of our most valuable branches of commerce, and one of the best sources of remittance” and then altered it to read as above in response to Madison’s comments.
33. Preceding three words interlined in Dft in response to Madison’s comments.
34. Remainder of sentence interlined in Dft in place of “go to war to make reprisals or to withold it’s stipulated engagements as satisfaction: or it may leave,” canceled, in response to Madison’s comments.
35. Preceding word interlined in Dft in place of “chiefly,” canceled.
36. Preceding word interlined in Dft in place of “violation,” canceled.
37. In Dft TJ here canceled “either to […] a suspension of execution, or.”
38. Preceding two words interlined in Dft in place of “availed itself of the right <of> which.”
39. In Dft TJ here canceled “had given, not by witholding their debts altogether, but by.”
40. In Dft TJ here canceled “of credit.”
41. Preceding paragraph added in margin in Dft.
42. Preceding six words interlined in Dft.
43. Preceding five words interlined in Dft in place of “That,” canceled.
44. Preceding five words interlined in Dft in place of “as it furnished colour for the detention of our posts, tho’ originally produced by that, was not disagreeable to that government may be inferred from their own,” canceled, in response to Madison’s comments.
45. Preceding two words interlined in Dft in place of “depriving us of the,” canceled.
46. In Dft TJ first wrote “carrying our produce” and then altered it to read as above.
47. In Dft TJ here canceled “foreign.”
48. Preceding two words interlined in Dft in place of “lessened,” canceled.
49. Remainder of paragraph interlined and added in margin in Dft.
50. Preceding word interlined in Dft.
51. Preceding word interlined in Dft in place of canceled and illegible word.
52. Preceding five words interlined in Dft in response to Madison’s comments.
53. Preceding seven words interlined in Dft.
54. Remainder of paragraph interlined and written in margin in Dft.
55. Preceding five words interlined in Dft in place of “as usual,” canceled.
56. Remainder of sentence interlined in Dft in place of “of the laws of neutrality,” canceled.”
57. Remainder of sentence interlined in Dft in place of “in meeting whatever was possible rather than appear to infringe a treaty, which the other party had not scrupled to contravene from it’s signature,” canceled, in response to Madison’s comments.
58. Remainder of sentence through “continue” interlined in Dft in place of “be for the most part equal in value to gold and silver,” canceled, in response to Madison’s comments.
59. In Dft TJ here canceled “was not continued.”
60. Next sentence interlined and written in margin in Dft.
61. Preceding two words interlined in Dft in place of “subjected to,” canceled.
62. TJ here erased a sentence in Dft that is now indecipherable.
63. In Dft TJ here canceled “a particular statement.”
64. In Dft TJ here deleted “And it was accordingly so determined.”
65. Preceding five words interlined in Dft.
66. Preceding word interlined in Dft in place of “enemy,” deleted.
67. In Dft TJ here canceled “and during no part of it had he paid any rent” in response to Hamilton’s comments.
68. Preceding five words interlined in Dft in place of “rapes, robberies and trespasses,” canceled.
69. Remainder of paragraph interlined and written in margin in Dft.
70. Preceding two words interlined in Dft in place of “[current?] of the,” canceled.
71. Preceding seven words interlined in Dft in place of canceled and illegible passage.
72. Remainder of paragraph interlined in Dft.
73. Remainder of paragraph written in margin in Dft in place of the following, which was canceled in response to Hamilton’s comments: “That the treaty should be made known to the legislature of that state, or in other words to the state, was certainly material, tho’ it’s ratification by them was not. But that it should have been definitively formed, signed and ratified by the proper organs of the two governments, was so necessary to make it a law of the land, that it would have been wonderful had a judge declared it so, before he knew what the treaty was, and even before it existed. The Executive and Legislative branches indeed are free, and even bound, to respect preliminary articles, in expectation that they will be definitively confirmed. But judges are allowed no such latitude. They are to decide on the single question Is this law? or is it not law? And it is impossible to say that a treaty is become a law of the land as soon as it is provisionally signed only, and consequently to say that at the time Judge Walton gave this opinion, the law of the land was repealed which denied to Alien enemies the right of maintaining suits. ‘Le traité devient, par la publication, un loi pour les sujets: et ils sont obligés de se conformer desormais aux dispositions dont on y est convenu.’ Vattel. L.4. £. 25. ‘Pacto pacis paciscentes statim obligat quam primum perfectum. Cum ex pacto veniat deligatio. Subditos verast militas, quam primum iisdem fuerit publicata; cum de eâ, ante publicationem ipsis certo constare non profit.’ Wolf. 1229. These authorities which establish the judge’s opinion, at the time he gave it, will remove your doubts whether ‘the principle still continues in that state of the continuance of war between the two countries,’ to which is added the subsequent doctrine of the same Judge Walton, with respect to treaties, when duly compleated, that they are paramount the laws of the several states: as has been seen in his charge to the grand jury before spoken of.”
74. Remainder of sentence through “added” interlined in Dft.
75. Remainder of sentence through “found” interlined in Dft in response to Madison’s comments.
76. Preceding three words interlined in Dft.
77. Preceding word interlined in Dft.
78. Preceding word interlined in Dft in place of “wrong,” canceled, in response to Hamilton’s comments.
79. Preceding word interlined in Dft in place of “most,” canceled.
80. Preceding word interlined in Dft.
81. Preceding three words interlined in Dft in place of “but,” canceled.
82. In Dft TJ here canceled “fixed and a.”
83. Preceding three words interlined in Dft.
84. Preceding paragraph added in margin in Dft.
85. In Dft TJ here canceled “all.”
86. In Dft TJ here canceled “3. That Congress had so far thought it best neither to declare, nor relinquish, the infractions of the other party, neither to give, nor refuse, their sanction to the retaliations by the four states” in response to Hamilton’s comments.
87. Preceding six words interlined in Dft.
88. Preceding eight words interlined in Dft in place of canceled and illegible passage.
89. In Dft TJ first wrote “the Treaty” and then altered it to read as above.
90. Preceding paragraph interlined in Dft.
91. Preceding word interlined in Dft in place of “really,” canceled.
92. Preceding word interlined in Dft in place of “apparently,” canceled.