James Madison Papers

To James Madison from John Francis Mercer, 23 December 1786

From John Francis Mercer

Annapolis Decr. 23. 1786

Dear Sir

I committed some hasty thoughts to paper in an illegible hand, which I sent you by Doctr. Griffin, relative to a clause in the British debt bill that you told me, pass’d the House of delegates by an almost unanimous assent, directing those who had paid British Debts into the public Treasury, to pay them over again.1 From the little consideration I had given this question myself. & from the unadvised & inconsiderate determ[ina]tion of the H. of D. I am persuaded, that if [it] did not pass without observation, yet that it never recd. the lights which just di[s]cussion woud have given it. The solemn determination of the Legislature of Virginia will be great impression on the question as far [as] it may affect other States—tho’ God knows & those who know how questions are generally caused the[re]in can bear evidence of what little authority their opinion ought to be any where. It cannot be the wish of any American Whig—& I am sure it is not yours that the Legislature of any state shoud wrest a question of such high legal impression from the judicial department, in order too to decide against our own Citizens in favor of Great Britain. Our Citizens have suffered enough from depreciation & if they can now put a share of the burthen legally on those who were the unjust authors of our Calamities, ill [bef]all the Man or sett of Men who woud prevent them. In all applications for justice it is an universal maxim & the Law of Nations & the natural inference of reason that the applicants must submit themselves to the tribunals of the Country where they apply. In applications to our Courts, the British can never complain as one common law governs both nations. What is law & justice in Westminster Hall, will be found law & justice in the American forum. But in every veiw we know that there is no peculiar tribunal, who take cognizance of questions arising under Treaties or the Law of nations. Those are admitted on all hands, to enter into the [ju]risprudence of every Country & to be as binding on all invested with the dispensation of judicial powers as the Municipal law of the land. The Question will come before them regularly, & they must decide on the force of the Treaty. One veiw will be whether it is to be considered as a repeali[ng] Law—regularly retrospective law is invalid—& when a thing is done by law, which might be done by Law, all contraventions act in the nature of a repeal. If the Treaty operates in this manner, in every legal principal of construction, the paymts. are good, admitted by writers in the Jus publicum equal with those on the municipal law—see Rutherford Int.2 If it is to be considered wholly by itself & to receive no relative interpretation, the question will then be—What is meant by the term Debts, & then the reasoning in my note by Doctr. Griffin applies, & these were unquestionably not debts at the time of the Treaty. The Question with respect to Interest rests best upon this ground. Whatever is suspended & these debts were at least suspended, must ex vi termini be reviv’d in the same state they were previous to their suspension. [As] by the law of England, A Sequestration out of the Court of Chancery, (which as I before observ’d is but a subordinate & suppletory legislation) will always destroy interest. With respect to the main question—Alien Enemy by the Law of England & consequently our law—is a plea in Base & not in Abatement which shews that the Debt is destroy’d by War, indeed this is pointedly held by all the old lawyers & to the best of my recollection there are Cases in point in Coke. The best writers of a later date & all the former writers I beleive hold thi[s] to be the operation of War. In the Treaty of Munster which closed a War precisely similar to ours, a similar stipulation took place with respect to a general recovery of Debts. That & the 4th. Article of the American Treaty lead to the conclusion that otherwise the Debts were indiscriminately forfeited. So that the stipulation has its object & operation without being extended to these debts discharg’d according to the existing Laws of the Country—Vattel. The Party to a Treaty claiming the benefit of a stipulation in the Treaty, shall claim no constructive benefit for [illegible] the Author—it was their fault that they did not clearly describe the extent of the advantage they wish’d. If the British Nation shoud be dissatisfeid with the decision of our Tribunals in case they determine in favr. of these paymts. it will then probably become the object of national discussion & shoud the Americans be induced from either conviction or terror to give up the point, it perhaps may then become proper for the legislature to determine that the individuals shall make up the depreciation. I shall be glad to hear from our Virginia. I had like to [have] said from our Assembly—but our assembly, I have to inform you, as far as H of [D] have voted paper money.3 The Senate will refuse. They say (the D.) that they will appeal to the People & break up. I beleive they’ll all go to the [Devil?]. The wiser part approve strongly of the Convention in May. My last hopes have taken refuge there. They will I beleive give almost unlimited powers. A party in the H. of Del. rejected Mr. D. C. our old freind4 in the election to Congress by one vote to the great regret of every person out of-doors. Adeiu Good Christmass to you.

J F Mercer.

RC (DLC). Addressed by Mercer. Docketed by JM. As portions of the Ms are faded, conjectural restorations are placed within brackets. Mercer’s thoughts were ahead of his pen, so that “it,” “as,” and “have” are also added in brackets for the sake of clarity, as are omitted letters in “discussion” and “therein.”

1The “hasty thoughts” have not been found, but Mercer appears to have misinterpreted JM’s report of legislative action on the prewar debts owed by Virginians to British merchants. No bill was passed ordering debtors to pay the debts “over again” if they had deposited funds under the 1777 act “enabling those indebted to British subjects to pay off such debts” (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 , IX, 379–80). The subject was so controversial that it repeatedly came before the General Assembly because of creditors’ petitions and perhaps even debtors’ consciences, but at the time JM apparently saw Mercer in Annapolis (during the short-lived convention of September 1786), there was no act in force to redress British debtors’ grievances. “Doctr. Griffin” was Cyrus Griffin (Papers of Madison description begins William T. Hutchinson et al., eds., The Papers of James Madison (9 vols. to date; Chicago, 1962——). description ends , II, 13 n. 3).

2Thomas Rutherforth (1712–1771), Institutes of Natural Law … (2 vols.; Cambridge, 1754–56), a commentary on Grotius’s Rights of War and Peace.

3Mercer meant he had moved from Virginia to Maryland. The House of Delegates in his adopted state had recently approved a paper-money bill, but as Mercer correctly predicted, the measure was rejected by the Senate (Nevins, American States during and after the Revolution, pp. 531–32).

4“D. C.”—Daniel Carroll—who had served in Congress with JM in 1781–1783. Carroll’s public talents were not lost, however, as he was later selected (along with Mercer) for service in the Maryland delegation to the convention of 1787 (Mary Virginia Geiger, Daniel Carroll: A Framer of the Constitution [Washington, 1943], pp. 122–25).

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