James Madison Papers

To James Madison from Edmund Pendleton, 9 December 1791

From Edmund Pendleton

Virga. Decemr. 9th. 1791.

Dr. Sir

Having spent 6 days in Richmond in hearing two Gentn. on each side argue the great Question respecting the recovery of British debts, I have for yr. amusement thrown together what I recollect of the General heads of the Argument, which may not comprehend the whole of those since I took no Notes, & give it from a faulty memory. They spake well on both sides, but Mr. Henry was truly great, & for the first time I ever heard him, methodical & connected for 2 days & an half. Grotious, Puffendorf, Vatell, & others were worried in the Service. They were still disputing on the 9th. day from the Commencement when I left the City—no hint from the Judges enabled even a conjecture of their Opinion, but the bystanders who were disinterested, pretty generally thought there could not be a recovery. We hear there is a Plenipo. from London with you to settle this business1—at any rate it seems to me that Congress must act in it, before it can be settled either way. The truly distressing Accots. from Miame are universally charged to Br——n,2 we are very anxious to hear how the affair ends. You’l have the Intelligence of the day from yr. bror. at Richmond. I have only to add that I am grown well & fat, & that I am still as much as ever Dr. sr. Yr. mo. Affecte.

Edmd Pendleton


Jones Surviving Partner of Farrel & Jones
   of Great Britain Plts.
Thomas Walker   deft.
} In debt on bond
before the Fœdral
Circuit Court at
Richmond Virga.

The defts. pleaded that the Plt. and his Partner were british Subjects when the debt was contracted, at the commencement of the late War & ever since, and that by the War this debt, then due, was forfeited to the Com.Wealth of Virginia. That pursuant to an Act of Assembly in 1777,3 he paid the Amount of the debt into the Virginia Loan Office as due to the Plt., & took the receipt directed by the Act, whereby in the terms of that Law, he was discharged of the debt.

The plt. replied the 4th. Article of the Treaty of peace4 “that there should be no legal impediment on either side to the bona fide recovery in Sterling money of all debts theretofore contracted” and the Fœdral Constitution declaring Treatys the Supreme law,5 as having repealed all the laws of the Virga. Assembly on the Subject.

The deft. rejoined the Covenants in the Treaty on the part of the british Sovereign for delivering up all American Property then possessed by the Army, to remove his Fleets and Armies from the Territory of the united States & deliver up all the Garrisoned Posts therein, & to live with America in good faith as became friends. Then alledged a breach of those Covenants 1. in refusing to deliver, & carrying away 5000 slaves American Ppty. which they had in possession at the time of the treaty. 2. in retaining the Posts & a large tract of territory within the American limits—& 3. in furnishing the Indians wth. Arms and Amunition, & instigating them to War with the United states contrary to friendship & the rights of Neutrality

The Plt. demur’d, & so the case came on before the Court for Argument.

For the Plt. For the Deft.
1. Wars betwn. Nation’s don’t affect the Contracts of Indivls.—debts are not confiscatable, are suspended only during the War, & revived by Peace. Therefore all the laws of the Virga. Assembly, tending to confiscate them, were void Ab initio, as contrary to the law of Nations. 1. By the law of Nature & Nations in a War, self preservation was the first principle, and each Nation was to judge for itself, what means were dictated by necessity to effect that end—and that will justify the seizing of debts of individuals, if in their power.
*That America, distress’d for money, to repel an unjust War, & driven to the Source of emitting paper, had a right to seize the debts in aid; wch. was more reasonable as the Crs. then would otherwise have been on a better footing than those of Ama., obliged to receive paper for their debts—Seqn. only then intended, the Paymts. into the Treasury—placed them on an equal footing & preserv’d their money from future depreciation.
That the exemptn. of debts from seizure in War was founded, not on the rights of War, but in the Modn. customs of the Europn. Nations by comn. consent, wch. custom did not bind Ama. for 2 reasons
1. Amas. first effort in War, & not bound by Usuage [sic] to which she was no party.
2. Britain did not consider it as a common War but a Rebellion, & in it’s progress violated all the Rules of humanity practiced in Europe, & therefore not intitled to claim any exemptns. under that Custom.
*That Nations as a Community form but one Moral person represented by the Sovereign Power, & in War, each individual of one is considered as in hostility to each of the other, & debt’s from one to the other, are named among the Hostile things wch. may be seized.

2. That the Virginia laws did not confiscate the debts, but sequestered them only, reserving to future direction, how the money should be disposed of, which had never been declared. 2. The Legislature of Virga. having a right to confiscate the debts, & having Acted upon them so as to take them from, & discharged the Drs. from the Creditors, it was sufft. for the present purpose of the deft., even if there was no actual confiscation, wch. however they asserted had taken place.
The Act of 1777 Sequester’d only, discharged Drs. who pd. into the Loan Office, & left it open for Crs. to apply & claim of the State.
In 1779—All british property in the State was declared to belong to the Com. Wealth, the real Estate by Escheat, the Personal by forfeiture
several tempy. laws prohibited suits by Br. Crs.6 And
in 1782—a perpetual law declaring that no suit should be brought for the Recovery of a br. debt.7
Remedy being taken away the right must follow it.
The Preamble to the Sequestration Act of 1777, shews the Assembly Adopted the Law of Nations as to debts, intending to Sequester & not confiscate.
  Britain had never confiscated debts
The Preamble indeed shews the Wish of the Assembly that the War should be conducted upon the humane Principles of modern practice they waited 2 yrs. in that vain hope, under the experienced departure on the part of Br——n from every article of that custom—except indeed as to confiscatn. of debts, which they forebore, not from tenderness, but that Subject being agt. them, they wished it to sleep.
It was all America had for retaliation, & in 1779, the Virga. Assembly embraced it, & proceeded to confiscation.
It was alledged that the slaves alone Plundered from Virga. contrary to the modern rules of War, were more than sufft. to have pd. all the debts due from the Citizens to Br. Subjects. And the defts. concluded that under the law of Nature & nations, the rights of War, the Municipal law, & the principles of Eq. the debts were extinguished, & could not be recovered, unless under the Treaty.

3. The treaty intitled the Plts. to a recovery, which being declared by the fœdral Constitution to be the Supreme law of the land, repealed the Virga. Acts, and removed every legal impediment to a bona fide recovery, & of course that which declared a payment into the Loan Office to be a discharge to the Drs. 3. 1. Treaties must be distinguished according to the subject matter of them—such Covenants as are within the Power of the Executive, have force by the Treaty itself: but such as tend to alter Laws established, not being within those powers, must receive their confirmation from the Legislature, wch. by the Constitution is the Congress. A contrary construction, would enable the President & Senate to repeal any Law of the United States, by throwing it into the form of a Treaty.
That the 4th. Article of the Treaty being to Act upon subsisting laws, which neither of the contracting Sovereignties had power to repeal, could only amount to Covenants by each that their respective Leges. should pass laws to effect the purpose.
So it was understood in America, & Congress recommended it to the State Assemblies, Who then held the whole legislative power, to pass laws for removing the Obstructions—which proving ineffectual, that Legislation is vested in Congress by the new Constitution, but ’til they exercise the Power by Passing a law, the Virga. Acts stand unrepealed, & obstruct the Plts. recovery.
2. Considering it as a law, the Court must view it as a law of Treaty, & interpret it according to the rules for construing Treaties established by the law of Nations; according to which, compacts of mutual engagements, are to be considered as reciprocal Conditions precedent, each party saying to the other, I will do this, provided you do that. Therefore the Party making an Infraction can’t complain of a breach.
That in this view, the Virga. Assembly by their Act of 1787,8 removing all obstructns. to the recovery, when Britain had performed the Treaty on her part, spake the language of the law of Nations on the Subject.
That on Infractn. of a Treaty by one Nation, the other had his Election to go to War, make reprisals, or withhold his Stipulated Engagements in Satisfaction, or indeed they might wave it altogether—discussns. on that Subject are in Europe confined to the Cabinets of Sovereigns; but by the fœdral Constitution is, as a law, consigned to the Courts of Justice, who must say what the law is; & congress9 not having waved the Infraction, or made it’s Election as to the remedy, the Court must say that the Aggressing party, is not intitled to any benefit from the Treaty, as facts are stated in the proceedings, leaving it to Governmt. to Act on the Subject freely, and not by a premature Judgmt. for the debts, deprive them of One (perhaps the best) alternative of their choice.
That a partial performe. on the part of Br. was no performance, & did not change the law.
That considg. Britain as the stronger, and America as the weaker Nation, it was justifiable & wise in America, to withhold her performance, except as to friendship & Commerce, ’til Brn. had done all on her part

4th. That tho’ the fact of Infraction was admitted by the Demurrer, yet that was a matter of Sovereignty, to be adjusted between the two Governing Powers, and not to be discussed in a Court of Justice 4th. Here again was reiterated the Observation that the members of a nation form but one Moral person. That the Plt. having no right to recover but under the Contract of his Sovereign, must abide the fate of that whole Compact, & be bound by his Kings infractn., which deprives him of the benefit, & resort there for his Satisfaction; whilst the American Citizen, sued under the Contract of his Sovereign Power, has a right to stand in the Place of that Power, & avail himself of that breach of the Treaty, wch. has annulled the Engagement by which alone he was compelled to pay. And so the Court must consider it, until Congress or the Governmt. shall Act upon it, & remove the Objectn.
Or suppose it a contract between Plt. & deft. of things to be mutually done, the Plt. can’t recover if he has made a breach on his part.

RC and enclosure (owned by Richard Gilder, Jr., New York, N.Y., 1990). RC docketed by JM, with his later notation: “inclosing the discussions in the Circuit Court of the U.S. at Richmond on the subject of ‘British Debts.’” Extract of RC, with notes, printed in PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 14:145.

1The British minister to the U.S., George Hammond, took up his duties in October 1791.

2Pendleton assumed that Great Britain was ultimately responsible for Arthur St. Clair’s defeat by the Miami Confederacy (see George Nicholas to JM, 1 Feb. 1792, PJM description begins Robert J. Brugger et al., eds., The Papers of James Madison: Secretary of State Series (1 vol. to date; Charlottesville, Va., 1986—). description ends , 14:212–14, 215 n. 2).

3“An act for Sequestering British Property, enabling those indebted to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties” (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 , 9:377–80).

4Article 4 of the definitive Treaty of Peace (1783) between Great Britain and the U.S. (Miller, Treaties description begins Hunter Miller, ed., Treaties and Other International Acts of the United States of America (8 vols.; Washington, 1930–48). description ends , 2:154).

5Article 6, clause 2, of the U.S. Constitution.

6“An act concerning escheats and forfeitures from British subjects,” 3 May 1779 (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 , 10:66–71).

7“An act to repeal so much of a former act as suspends the issuing of executions upon certain judgments until December, one thousand seven hundred and eighty-three” (ibid., 11:75–76).

8“An act to repeal so much of all and every act or acts of assembly as prohibits the recovery of British debts” (ibid., 12:528).

9Pendleton here interlined “Governmt.” but did not delete “congress.”

Index Entries