James Madison Papers

Notes on the Draft of Thomas Jefferson’s Letter to George Hammond, [ca. 16 May 1792]

Notes on the Draft of
Thomas Jefferson’s Letter to George Hammond

Editorial Note

George Hammond, the first British minister to the United States, arrived in Philadelphia in October 1791 and presented his credentials to President Washington on 11 November. Some two weeks later, Secretary of State Jefferson attempted to ascertain the minister’s powers to settle American differences with Great Britain with respect to the failure of the former mother country either to fulfill the terms of the seventh article of the 1783 Treaty of Paris or to make more generous arrangements for Anglo-American commerce. Since Hammond had no powers to make any commercial agreement, Jefferson decided to concentrate on the violations of the 1783 treaty, where Hammond had justified Great Britain’s refusal to honor the terms of article 7 on the grounds that the United States had not observed the engagements contained in articles 4, 5, and 6. On 15 December 1791, Jefferson suggested that he and Hammond specify “the particular acts which each considers to have been done by the other in contravention of the treaty,” and he “set the example” by complaining of Great Britain’s refusal to withdraw its garrisons from posts in the American Northwest and its abduction of a considerable number of slaves at the end of the war for independence (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (22 vols. to date; Princeton, N.J., 1950—). description ends , 22:409–10).

Hammond eventually responded on 5 March 1792 with a lengthy account of the failure of both Congress and the states to assist Loyalists and British creditors in their efforts to recover confiscated property and long-outstanding debts. The minister presented his indictment in the broadest terms and relegated the evidence to support his case to five appendices listing various acts and legal proceedings, which, he declared, exemplified the grievances he was protesting. Jefferson’s rebuttal was far more thoroughly researched and more focused in its argument, and by early May he had prepared a sixty-six-page draft (DLC: Jefferson Papers), which he showed first to JM and then, after receiving JM’s three pages of comments by 16 May, to Treasury Secretary Hamilton and Attorney General Randolph. JM, of course, hardly needed to be convinced of the merits of Jefferson’s arguments, and his comments reflected, as much as anything, the different temperaments of the two Virginians, with JM urging his friend to be either more restrained or more precise in the wording of some of his statements. But on the points that JM did raise, his comments clearly influenced Jefferson’s subsequent revisions of his note, which, after it had obtained the president’s approval in cabinet, was sent to the British minister on 29 May 1792 (see ASP description begins American State Papers: Documents, Legislative and Executive, of the Congress of the United States … (38 vols.; Washington, 1832–61). description ends , Foreign Relations, 1:188–200; Jefferson to Hammond, 29 May 1792, Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (22 vols. to date; Princeton, N.J., 1950—). description ends , 23:551–602 and nn.; Bemis, Jay’s Treaty, chap. 5; Malone, Jefferson and His Time description begins Dumas Malone, Jefferson and His Time (6 vols.; Boston, 1948–81). description ends , 2:412–17; and Syrett and Cooke, Papers of Hamilton description begins Harold C. Syrett and Jacob E. Cooke, eds., The Papers of Alexander Hamilton (27 vols.; New York, 1961–87). description ends , 11:408–14).

[ca. 16 May 1792]

p.  1. (a)— was the evidence of none produced?1
p   1. (b)— what meant by “its different administrations”2-& whatever its meaning is it a circumstance sufficiently marked to enforce the appeal?
p.  2. (a)— Is not “foreign” likely to be criticized as not applicable in its ordinary & strongest sense—distant Country—unknown judges or some equivalent epithets might be free from the objection if a real one.3
p.  3. (a)  Might not a more apt word be substituted for perpetual chains which is not literally just—nor congruous with the idea of becoming murderers &c.4
p.  5. (a)  wd. it be superfluous to guard the universality of these terms so as to correspond with “the apud hostes inventas” & “apud nos reperta” of Bynk. In their unqualified sense they extend to hostile property found with neutral nations—Quer. also whether a State of war, as now understood, permits the seizure of property in the broad sense of Bynkershook—if there be ground for this doubt, some such words as “in its rigor” might be thrown in.5
p.  5. (b)— will not this be called drawing up the curtain just dropped on the tragedy of the War?6 The expression might, if requisite, receive a less harsh form, without weakening the inference.
p   7. (a).  May not the word “idle” give offence,7 as Hammond has rejected or disregarded the difference stated.
p.  9. (a).  Mr. T. Pitt & Mr. Wilberforce seem to have very obscure ideas of the powers of Congs. & the obligation taken on them by the word recommend. Lord Hawke seems not to understand the difference between recommending, & the constitutional power of making requisitions.
May not these proofs be repelled, if Mr. H. chooses, by alledging want of accuracy & authenticity in the publication—& wd. it be amiss to admit both sub modo—without relinquishing the sufficiency of the general scope & complexion of the debate which could not well be mistaken.8
p. 17. (a).  Is this consistent with the journals & reports of the Commissrs, which shew that they opposed & that the British Negociators urged the admission of the people in question, to citizenship in this Country.9
p. 15. (b)  Why invert the geographical order of the States—if in compliance with Mr. H. a little explanatory amendment is suggested in loco.10
+ ☓ p. 15 (a)  Is it so clear, as to need no proof or remark, that confiscation is compleat by the Law—without the subsequent process for carrying the law into effect? Perhaps Mr. H.s Memorial may admit what is assumed. In that case the quere is superseded.11
p. 28 (a).  Are not these acts of Jany. that is prior to Apl. 11. 1783. thrown out of the question by the distinction with which the review sets out12
p 28. (b)  “will excuse my answering”—Is this phrase correct—sd. it not be excuse my not answering or excuse me from answering?13
p. 30 (a).  See ☓ p. 15 (a)14
p. 31— (a).  See p. 17 (a).15
p. 31. (b).  quer. whether so much here & p. 32. as animadverts on the Refugees &c. be necessary—and if not whether it be expedient.16
p. 36 (a).  May not this be viewed as unnecessarily pointed?17
p. 36 (b).  From accts. given of the Furr trade it is doubtful whether so great a proportion of it ever passed thro’ the present U. S. as to place it among the [“]most valuable branches of their commerce.”18
p. 37. (a)  Is it clear that a nation can rightly make general war in the first instance, for a breach of any treaty—or even a Treaty of peace?19
p. 41— (a).  Quer. whether so dishonorable an object can be prudently inferred from regulations which ostensibly were not at all, & perhaps really very little considered in that relation.20
p. 42. (a).  as the laws of all the States as well as of G. B. subject the body to restraint for debt, wd. it not be as well to omit this general denunciation of the practice as agst. reason?21
p 42 (b).  Is not this pre-eminence to the civil law liable to misconstruction?22
p. 44. (a)  The unwillingness to infringe the Treaty, seems here to be stated as the cheif, if not sole motive agst. paper money23
p. 44 (b).  Is not the value of paper emissions too strongly expressed. The depreciation was considerable in all & great in some cases. It is also a tender in N. Jersey yet in certain cases (Quer.) unless superseded by the Constitution.24
p. 58. (a)— see p. 31. (b)—as it is admitted that Modifications in the recovery of debts existed in some States—is not the positition [sic] too broad that our Courts have been as open as theirs?25
p. 62 (a)  Quere. whether this reasoning is applicable to the case of positive & express stipulations between two Countries. In ordinary cases the individual foreigner claims under the law & the tribunals for expounding it, & his sovereign can not interfere unless for palpable & culpable wrong. In the former case, an innocent error of the Judge which might defeat the stipulation, might be ground of complaint & satisfaction.26
p. 63 (a)  To this it may be said—that the law being known, justice could not claim interest; & of course no National complaint wd. be warranted.27
p. 65 / (a)  Does not this suppose that if America had been conquered, not only forfeitures wd. have taken place—but without payt. of the dbts of the traitors—a thing not presumable?28
p. 66. (a)  will not the forced exile of some form an exception here? It wd. seem also that the departure of an alien Creditor in all cases results of necessity on the event of a war, yet it is not the Modern practice to abate interest during war.29

Ms in two parts (DLC: Jefferson Papers). In JM’s hand. Marginal “+” and “—” marks were apparently added by Jefferson. Undated. In the Index to the Thomas Jefferson Papers the first part of these notes is dated 1791–95 and attributed to “United States Attorney General,” while the last paragraph, written on a separate slip of paper, is dated 1801. Conjectural date here assigned on the basis of Jefferson to Washington, 16 May 1792, where Jefferson mentioned that “Mr. Madison has favored me with some corrections for my letter to Mr. H.” (Ford, Writings of Jefferson description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson (10 vols.; New York, 1892–99). description ends , 5:514). Jefferson subsequently revised his draft letter to Hammond, 29 May 1792 (DLC: Jefferson Papers), to incorporate corrections suggested by JM and Hamilton. In the notes below the editors have reconstructed Jefferson’s original wording as nearly as possible to show how the final version, as printed in Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (22 vols. to date; Princeton, N.J., 1950—). description ends , 23:551–602, reflects JM’s suggestions.

1In acknowledging Hammond’s letter of 5 Mar. 1792, Jefferson had complained that the matters it raised were “very various & the evidence of them not [produced nor] easily to be obtained.” In the final version of his reply to Hammond, Jefferson omitted the words in brackets (see Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (22 vols. to date; Princeton, N.J., 1950—). description ends , 23:551).

2In his draft Jefferson had originally written that the desire of the U.S. to be on good terms with Great Britain “has manifested itself under it’s different administrations by repeated overtures.” The final version read that the desire of the U.S. to be on the “best terms” with Great Britain “has manifested itself, through it’s different forms of administration by repeated overtures” (ibid.).

3In his letter of 5 Mar., Hammond had complained of American laws going back as far as 1775, and Jefferson, in section 1 of his reply, covering pages 1–3 of his draft, had responded in kind by making objections to the 1774 Coercive Acts, including their provision for Americans “to be tried in a foreign country; by foreign judges instead of a jury of their vicinage.” In Jefferson’s final version most of these three pages were deleted, but the deleted portion has been reproduced in Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (22 vols. to date; Princeton, N.J., 1950—). description ends , 23:609–11 n. 5 (cf. with the version ibid., 23:552).

4Jefferson had mentioned section 4 of 16 Geo. 3, chap. 5, under which “multitudes of our citizens, taken on board our vessels, were forced by starving, by periodical whippings, & by perpetual chains to become the murderers of their countrymen.” He replaced “perpetual” with “constant” but later deleted the entire section in order to “drop for ever the curtain on this Tragedy” (ibid., 23:552).

5In section 3, dealing with “Exile & Confiscation,” in his draft response, Jefferson had quoted from Cornelius van Bynkershoek, Quaestionum juris publici … (1737 ed.), bk. 1, chap. 7, p. 51 (“Cum ea sit belli conditio, ut hostes sint omni 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”), to justify his assertion that “the state of war permits a nation to seize the property of it’s enemies wherever found, and in whatever form it exists.” In the final version Jefferson wrote that “the state of war strictly permits a nation to seize the property of it’s enemies found within it’s own limits, or taken in war, and in whatever form it exists” (Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (22 vols. to date; Princeton, N.J., 1950—). description ends , 23:553).

6In dealing with the circumstances under which the war for independence was fought, in section 3 of his draft, Jefferson had originally written that “Great Britain too, did not consider it as a common war, but a rebellion; & in it’s progress violated all the rules of humanity practised by the customs of Europe. She was therefore not entitled to claim any ⟨exceptions?⟩ under those customs.” He later modified it to read: “Great Britain too, did not consider it as an ordinary war, but a rebellion; she did not conduct it according to 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” (ibid., 23:554).

7In rejecting Hammond’s interpretation of American obligations under the 1783 Treaty of Paris, in section 5 of his draft reply, Jefferson had written, “Between persons whose native language is that of this treaty, it would be idle to pretend to explain the difference between enacting a thing to be done, & recommending it to be done.” He later replaced “would be idle to pretend” with “is unnecessary” (ibid., 23:555).

8In arguing that Great Britain had originally understood the “recommendations” of the 1783 treaty with respect to the Loyalists in the same sense that the U.S. did, Jefferson, in section 7 of his reply, quoted extensively from speeches made in Parliament by Thomas Pitt, William Wilberforce, and Martin Bladen Hawke, second lord Hawke. All three speakers believed that Congress would comply with the treaty, but they also feared that it lacked the power to exact compliance from the state governments. Lord Hawke had supported this contention by claiming that Congress had no more than the power to recommend requisitions to the states. Jefferson had then concluded his argument in the first draft: “Thus we see that the effect of a recommendation was perfectly understood, its result prognosticated, and their minds prepared to grant the indemnification themselves, after taking the chance of getting it from the States under the recommendation of Congress.” In the final version Jefferson deleted this sentence, possibly in response to JM’s suggestion, and replaced it thus: “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” (ibid., 23:556–59). For the purposes of his argument here Jefferson had quoted from the Parliamentary Register as a “work, which … may yet be relied on for the general reasoning and opinions of the Speakers.” Possibly in response to JM’s point that Hammond might question the authenticity of the source, Jefferson interlined that the register could be relied on, “we presume,” for the sense of the speakers (ibid., 23:556).

9In section 10 of his reply, Jefferson had defended a Georgia law of 7 Feb. 1785 regulating the rights of aliens and the admission of citizens against Hammond’s charge that it was in violation of article 5 of the 1783 treaty. He had concluded his argument by declaring, “The policy of Great Britain has certainly not been to negotiate a right for her inhabitants to migrate into these States and become citizens.” This sentence was deleted in the final version (see ibid., 23:561).

10Jefferson’s catalog of legislation on the Loyalists passed by the various states in sections 9 through 22 of his reply began with Georgia and proceeded geographically through the other states to end with New Hampshire. In his draft Jefferson offered no explanation for this ordering; later he added the phrase, “Beginning at that end of the Union, where the war having raged most, we shall meet with the most repugnance to favor” (ibid., 23:560).

11In defending in section 10 of his reply a Georgia law of 29 July 1783 “releasing certain persons from their bargains,” Jefferson had explained that the law amended a 1782 statute to authorize a new sale of confiscated lands as a mode of paying for them, “the lands remaining confiscated under the law made previous to the peace.” He made no change at this point in the final version but later addressed JM’s question in more general terms (see ibid.; and n. 14 below).

12In section 20 of his reply, Jefferson had defended four pieces of anti-Loyalist legislation passed in Rhode Island between May and October 1783. It seems that the dates of two of these laws, passed on 8 and 12 June 1783, were miscopied as January by Jefferson’s clerk, George Taylor, and JM therefore suggested that Jefferson omit any reference to them in his argument. Jefferson had already stated in his draft that he considered as “out of the present discussion” any American legislation passed before 11 Apr. 1783, the day Congress had received an official copy of the preliminary articles of peace. Jefferson accordingly struck out the part of section 20 relating to the Rhode Island laws, but he then reinstated it and altered the January dates to June (see Boyd, Papers of Jefferson description begins Julian P. Boyd et al., eds., The Papers of Thomas Jefferson (22 vols. to date; Princeton, N.J., 1950—). description ends , 23:553, 565).

13On 30 Mar. 1792 Jefferson had requested from Hammond copies of a number of Rhode Island laws relating to the treatment of Loyalists, which Hammond, in his reply of 6 Apr., stated he was unable to supply as he was no longer in possession of the material. Jefferson thus wrote in his draft: “These circumstances will excuse my answering or admitting these acts.” He later altered the sentence to read: “These circumstances, will I hope excuse my not answering or admitting these acts” (ibid., 23:565).

14In concluding the sections of his draft in defense of state legislation relating to Loyalists, Jefferson had declared that Hammond was not entitled to complain of any of the laws as violations of article 5 of the 1783 peace treaty. Since JM was apparently suggesting the need to place beyond question the legality of these statutes as well as any legislation passed to give them effect after the arrival of the articles of peace in April 1783, Jefferson may have added a new section (no. 23) in his final reply to refute Hammond’s claim that all measures relating to the Loyalists taken after the arrival of the peace treaty in America violated its sixth article. Drawing on Blackstone, Jefferson argued here 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.” He then concluded section 23: “and consequently it will not be necessary to notice again this part of the VIth. Article” (ibid., 23:566).

15Here, in section 24 of his draft, Jefferson repeated his assertion, previously made in his draft of section 10, that the British negotiators in 1783 had not intended “to stipulate a right for British subjects to emigrate & become members of another community.” Jefferson left his draft unchanged (see ibid., 23:567).

16In section 25 of his draft, Jefferson seemed to question both the justice of the Loyalists’ grievances and the motives behind the British government’s policies toward them. The original wording at the beginning of the third sentence of this section has been crossed out, but it apparently read: “the claimants [were too numerous, & too noisy to be ⟨put off?⟩], & the government determined at length to indemnify them for their losses.” Jefferson replaced the phrase in brackets with “continued their importunities.” He also noted that the decision of the British government to indemnify the Loyalists cost it less “than to have settled with us the just account of mutual indemnification, urged by our Commissioners [but prudently declined by theirs].” Jefferson later deleted the phrase in brackets (see ibid.).

17In answering Hammond’s complaints about American refusals to pay debts owed to British creditors, Jefferson, in section 27 of his draft, cited several instances in which Great Britain had been slow to comply with treaty provisions requiring the withdrawal of its garrisons from the U.S. “with all convenient speed.” In particular Jefferson had maintained that Great Britain had been unreasonably tardy in withdrawing from posts in upstate New York, a delay which Gen. Frederick Haldimand had justified as late as 13 July 1784 on the grounds that he had not received the necessary orders. Jefferson angrily noted this was “eighteen months after the signature of the general pacification! [and this is withdrawing the garrisons from every post within the U.S. with all convenient speed].” He later deleted the phrase in brackets (see ibid., 23:570).

18Jefferson, in section 28 of his draft, alleged that Great Britain’s refusal to withdraw from the northwestern posts had cut the U.S. off from the fur trade, which, he claimed, “before the war, had been always one of the most valuable branches of our commerce, & one of the best sources of remittance for the payment of our debts to Great Britain.” He subsequently modified the sentence to read that the fur trade “had been always of great importance as a branch of Commerce, and as a source of remittance …” (ibid., 23:570–71).

19In section 29 of his draft, Jefferson had observed that “on the breach of a treaty by one party, the other has it’s election to go to war, to make reprisals, or to withold it’s stipulated engagements in satisfaction, or it may wave the breach altogether.” He rewrote the section as follows: “On the breach of any article of a Treaty by the one party, the other has it’s election, to 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” (ibid., 23:571).

20At the end of section 35 of his draft, Jefferson had attempted to summarize the extenuating circumstances to account for Americans not paying their debts to their British creditors. “That delay in the payment of debts,” he wrote, “as it furnished a colour for the detention of our posts, tho’ [not?] originally produced by that, was not disagreeable to that government may be inferred from their own commercial regulations for depriving us of the means of payment, by prohibiting us from carrying our produce to their dominions in our neighborhood.” He later rewrote the sentence thus: “To the necessities for some delay in the payment of debts, may be added, the British commercial regulations, lessening our means of payment, by prohibiting us from carrying, in our own bottoms, our own produce to their dominions in our neighborhood” (ibid., 23:575).

21See section 36 of Jefferson’s draft where he justified American laws releasing persons from imprisonment for debt. Jefferson did not make any significant change in his final version (see ibid.).

22In defending the release of persons from imprisonment for debt, Jefferson adduced precedents from first Roman, then French and English law. JM seems to have been questioning Jefferson’s assertion that “the Roman law” was “the nearest to natural reason” in this matter. Jefferson did not alter his emphasis here, though his interlineation—the Roman law, “the principles of which” were the nearest to natural reason—may have been made in response to JM’s question (see ibid.).

23In section 37 of his draft, defending and minimizing the use of paper money by the American states, Jefferson claimed that the fact that the states had not issued more paper than they had “proves their firmness [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].” He later deleted the section in brackets and replaced it with “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” (ibid., 23:577).

24Jefferson had argued in section 37 of his draft that only four states had issued paper money, that the amount of the emissions was small, and that it was “so secured as to [be for the most part equal in value to gold & silver &] it’s quality, as a tender, [was not continued] after the first paroxysms of distress were over.” He later deleted the sections in brackets and wrote that the states had so secured the paper money as to “suffer only a shortlived and not great depreciation of value; nor did they continue it’s quality as a tender, after the first paroxysms of distress were over” (ibid., 23:577).

25In order to counter Hammond’s objections to the obstacles preventing British creditors from recovering their debts owed by Americans, Jefferson, in section 49, expressed surprise that British creditors had not brought more suits in American courts to do so. He asserted that American courts “were as open to their suits, & as impartial to their subjects, as theirs to ours.” He later modified the sentence to read that American courts, “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” (ibid., 23:587).

26See section 53 of Jefferson’s letter in answer to Hammond’s complaint that American courts and legislatures had refused to allow British creditors the right to collect interest on debts owed them by Americans. Jefferson argued in response that a foreign prince had no recourse against errors committed by American authorities unless these were so evident and so palpable that they amounted to “premeditated wrong,” in which case a foreign prince might take measures to redress the grievances of his subjects. Jefferson made no changes from his original draft here (see ibid., 23:589).

27In section 54 of his draft, Jefferson argued at length that neither the text of the 1783 treaty nor the principles of English law established a right either for British creditors to claim interest on debts owed them or for the British government to complain of this. JM may have been suggesting that Jefferson had needlessly overstated his case, but Jefferson made no changes in the final version (see ibid., 23:590).

28Later in section 54, Jefferson had tried to strengthen his case against Hammond’s claims for interest payments to British creditors on the grounds that during “a general and national calamity, [when] nothing is made out of lands, which are assigned for payment of interest, it [the interest] ought not to run on during the time of such calamity.” The war for independence, Jefferson declared, was such a calamity, and while creditors might argue they had lost the use of their money for its duration they could not claim interest from a debtor who, demonstrably, had not derived any use from it either (see ibid., 23:591–92).

29Jefferson further argued, in section 54, against the right of British creditors to claim interest on the grounds that it was literally impossible for American debtors to pay their creditors after the latter had withdrawn their agents, with their books and papers, from the U.S. “The creditor thus withdrawing from his debtor, so as to render payment impossible, either of the principal or interest, makes it like the common case of a tender & refusal of money, after which interest stops both by your laws & ours” (see ibid., 23:593).

Index Entries