to Supreme Executive Council of Pennsylvania
RC (Historical Society of Pennsylvania). Written by Meriwether Smith, except for the signatures of the other delegates. Docketed: “1781 July 12th. From Delegates of Virga State respg. property of Virga. attached by Simon Nathan.”
[ca. 9 July 1781]1
The underwritten the Delegates attending in Congress from the Common Wealth of Virginia, beg leave to communicate to the supreme Executive Council of the Common Wealth of Pennsylvania, the Information they have received from George Nicolson an Agent from the State of Virginia now in this City.2
“That an Attachment granted by a Magistrate of the City of Philadelphia3 hath been levied on fifteen Bales of Merchandise, imported in the Ship Franklin,4 the property of the State of Virginia and in the possession of Messrs: Butler & Mifflin,5 who have been summoned to appear and answer as Garnishees. a Copy of the Attachment and Sheriff’s Return of the Execution thereof is hereunto annexed.6 That these Goods are for cloathing the Troops of the State in the Continental Army and were shipped on Board the Franklin by Mr. P. Penet7 Merchant in France, and addressed to the Care of Mr. Robert Morris for the Use of the Commonwealth of Virginia, as by the Bill of Loading and Invoice ready to be produced if required may appear.”
The Underwritten think it necessary to communicate this Transaction to the Supreme Executive Council for their Information; and take the Liberty of observing that they conceive the Goods in Question—the property of the State of Virginia cannot be arrested or detained by process issuing from any of the Courts or Magistrates of Pennsylvania or any other State in the Union, such proceeding necessarily involving one of two Consequences, either that the State, whose property is thus arrested, suffer the Inconvenience of an exparte Adjudication ever dangerous to the Rights of property, or abandon its Sovereignty by descending to answer before the Tribunal of another Power8—Alternatives, which, it is equally the Interest of the State of Pennsylvania as of Virginia, to avoid.
The Courts of Law in the Common Wealth of Virginia being open, as well to the Citizens of other States, as to her own, the said Simon Nathan, as well as any other individual might have applied there, for Justice, and obtained it.9 If his Demand, although just, were of such a Nature as to be out of the reach of the Courts of Law, still the Case would not be without Remedy; as on Petition to the Legislature, the supreme Authority of the State, it would no doubt be attended to, and redressed.
Besides the Consequences above stated, it will occur to the supreme Executive Council, that great Evils may ensue to the particular State, and to the Union in general, if Individuals Claims be allowed to arrest the Military Supplies of one State imported into or passing through another in Time of War, and to withold them from her until released by the usual Course of Law.10
The underwritten therefore cannot but consider this proceeding as unwarrantable; derogatory to the Rights of Sovereignty of the State of Virginia, and requiring the immediate Interference of the Authority of the State of Pennsylvania to put a Stop thereto; and for restoring the Goods to the Condition they were in when the Attachment was levied.11
James Madison Junr
2. George Nicolson’s “Information” may have been given orally. No letter of about this date from him to the delegates has been found.
3. The order was issued by Jonathan Bayard Smith (1742–1812), a Philadelphia merchant and a member of Congress in 1777–1778. He was prothonotary of the Court of Common Pleas for the city and county of Philadelphia from 1777 to 1788 and a justice of that court from 1778 to 1788. He was the father of Samuel Harrison Smith, founder and editor of the National Intelligencer.
4. The “Franklin” arrived in Philadelphia on 21 June after a very long passage from L’Orient, France (Burnett, Letters description begins Edmund C. Burnett, ed., Letters of Members of the Continental Congress (8 vols.; Washington, 1921–36). description ends , VI, 125, 130).
5. Enclosed in the delegates’ letter was a copy of J. B. Smith’s writ directing William Will, sheriff of the county of Philadelphia, to attach all the “Goods and Chattles, Rights and Credits” of the Commonwealth of Virginia which “may be found in your Bailwick.” At the foot of the writ, Will certified that he had executed it by attaching fifteen bales of goods each marked “SV,” in the hands of “Messrs. Jonathan Mifflin and Sol: Butler.” In the Pennsylvania Packet of 12, 19, and 28 July 1781, Mifflin and Butler advertised that they had for sale at their store on the South Street wharf a variety of merchandise, imported in the “Franklin,” including sail canvas, cordage, Bohea tea, spices, brandy, glass, and lead. Probably none of these wares was from the “fifteen bales” belonging to Virginia. William Will (d. 1798) had organized and commanded a company of “associators,” 1776–1777, and risen to be a lieutenant colonel of militia. In 1785 he served in the Pennsylvania Assembly (Jacob Cox Parsons, ed., Extracts from the Diary of Jacob Hiltzheimer of Philadelphia, 1765–1798 [Philadelphia, 1893], p. 252; Pennsylvania Magazine of History and Biography, XXVI , 346). Jonathan Mifflin (ca. 1753–1840), a merchant-shipper of Fountain Green, near Philadelphia, had served in 1776 as brigade major to his second cousin, General Thomas Mifflin, in 1776–1777 as paymaster of the 5th Pennsylvania Battalion, and between 1777 and 1781 as deputy quartermaster general of the continental army (Fitzpatrick, Writings of Washington description begins John C. Fitzpatrick, ed., The Writings of George Washington, from the Original Sources, 1745–1799 (39 vols.; Washington, 1931–44). description ends , V, 196; VI, 423 n.; VIII, 328; Heitman, Historical Register Continental description begins F. B. Heitman, Historical Register of Officers of the Continental Army during the War of the Revolution (Washington, 1893). description ends , p. 293). In 1797, after three years’ service as cashier of the Bank of Pennsylvania, he resigned. Ruined by losses at sea during the naval war with France, he moved in 1800 to Hybla, his third wife’s estate near the present town of Columbia, Pa. (John Houston Merrill, Memoranda Relating to the Mifflin Family [privately printed, n.p., 1890], pp. 43, 61–68). His merchandising partner, Solomon Butler, has not been identified.
6. The delegates’ letter and the writ with the sheriff’s “Return” are printed in Pennsylvania Archives description begins Samuel Hazard et al., eds., Pennsylvania Archives (9 ser., 138 vols.; Philadelphia and Harrisburg, 1852–1949). description ends , 1st ser., IX, 261.
7. J. Pierre Penet, a merchant of Nantes (Papers of Madison description begins William T. Hutchinson, William M. E. Rachal, et al., eds., The Papers of James Madison (2 vols. to date; Chicago, 1962——). description ends , I, 294, and n. 2).
8. That is, the hearing before a Pennsylvania tribunal would necessarily be ex parte, because the defendant, the sovereign Commonwealth of Virginia, would refuse to respond to a suit brought by an individual without her consent, let alone submit to a subpoena issued by the judiciary of a “foreign” jurisdiction.
9. For Nathan’s claims against Virginia, see Jefferson to Virginia Delegates, 15 March, and nn.; Virginia Delegates to Jefferson, 10 April, and n. 4, and 1 May 1781, and n. 1. In “An act declaring who shall be deemed citizens of this Commonwealth,” passed on 26 June 1779 (Journal of the House of Delegates description begins Journal of the House of Delegates of Virginia, March 1781 Session in Bulletin of the Virginia State Library, XVII, No. 1 (January 1928). description ends , May 1779, pp. 67–68, 70), the General Assembly had opened the judicial system of Virginia to the use of non-citizens, by stipulating that the “free white inhabitants of every of the states, parties to the American confederation” should “be entitled to all rights, privileges, and immunities of free citizens in this commonwealth” (Hening, Statutes description begins William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619 (13 vols.; Richmond and Philadelphia, 1819–23). description ends , X, 130). Thus, if Nathan had wished to sue the state, he could have done so by bringing an action against the governor, under Article IX of the law “establishing a General Court” (ibid., IX, 403–4), enacted on 24 January 1778 (Journal of the House of Delegates description begins Journal of the House of Delegates of Virginia, March 1781 Session in Bulletin of the Virginia State Library, XVII, No. 1 (January 1928). description ends , October 1777, p. 136). That Nathan might pursue such a course was to cause former Governor Jefferson such anxiety that on 22 September 1782 he would address Governor Benjamin Harrison to inquire whether, in event of a suit, his defense as chief magistrate at the time the trouble with Nathan had originated would be sustained at public expense. Harrison replied affirmatively (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (16 vols. to date; Princeton, N.J., 1950——). description ends , VI, 197, 200).
10. J. B. Smith’s writ, referred to in nn. 5 and 6 above, directed that “the said Common wealth [of Virginia] be and appear before our Justices of Philadelphia at our Court of Common Pleas there to be held the fifth Day of September next.” Therefore, even though Virginia should consent to and win the suit, two or three months would elapse before the property at issue could reach its destination.