Front Page Titles (by Subject) 1792 - TO THE BRITISH MINISTER 1 (GEORGE HAMMOND) - The Works, vol. 7 (Correspondence 1792-1793)
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1792 - TO THE BRITISH MINISTER 1 (GEORGE HAMMOND) - Thomas Jefferson, The Works, vol. 7 (Correspondence 1792-1793) 
The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 7
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TO THE BRITISH MINISTER1
May 29, 1792.
Your favor of Mar 5 has been longer unanswered than consisted with my wishes to forward as much as possible explanations of the several matters it contained. But these matters were very various, & the evidence of them not easily to be obtained, even where it could be obtained at all. It has been a work of time & 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. The desire entertained by this country to be on the best terms with yours, has been constant, & has manifested itself through it’s different forms of administration by repeated overtures to enter into such explanations & arrangements as should be right & 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, & [to enumerate & comment in several parts of your letter, on all the acts of our 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 & sell, to sequester, take possession of & lease the estates of the loyalists, & to apply the proceeds thereof towards the redemption of certificates & bills of credit, or towards defraying the expenses 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, &, if found within the state, declared felons without benefit of clergy. In some states, the estates and rights of married women, of widows, & of minors, and of persons who have 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, & to abide their trials for High treason; in failure of which the parties so required were attainted, were subjected to, & suffered all the pains, penalties, & 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 & generally reputed to hold or claim, or, if dead, to have held or claimed, at the time of their decease real or personal estate) & upon notice or neglect to appear & traverse the indictment or upon trial & conviction the persons charged in the indictment, whether in full life or deceased, were respectively declared guilty of the offences charged, & 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 & improvements: in others was appropriated as rewards to individuals for military services rendered during the war, & in one instance property mortgaged to a British creditor, was liberated from the incumbrance by a special act of the legislative, as a provision for the representatives of the mortgager who had fallen in battle.”
However averse to call up the disagreeable recollections of that day, the respect & duty we owe our country, forbids us to suffer it to be thus placed in the wrong, when it’s 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 their own, without witnesses, without friends or the means of making them; that of the 14 G. 3. c. 39. for protecting from punishment those who should murder an American in the execution of a British law, were previous to our acts of Exile, & even to the commencement of war. Their act of 14. G. 3. c. 19. for shutting up the harbor of Boston, & 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 have hitherto raised and sold at those markets, & thereby leaving that produce useless on our hands; that of 10. G. 3. c. 5. prohibiting all exports even to British markets, & 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, under which multitudes of our citizens taken on board our vessels were forced by starving, by periodical whippings, & by constant chains to become the murderers of their countrymen, perhaps of their fathers & brothers. If from this legislative warfare we turn to those scenes of active hostility which wrapped our houses in flame, 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 & blessings of the earth, & hearing of these distant events as of the wars of Benaris or the extermination of the Rohillas, & say with candor whether the difference of scene & situation would not have justified a contrary difference of conduct towards each other?]1 & in several parts of your letter, to enumerate & 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 we 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 & situation would not have justified a contrary difference of conduct, & whether the wonder ought to be that our legislatures had done so much, or so little—we will waive all this; because it would lead to recollections, as unprofitable as unconciliating. The titles of some of your 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 forever the curtain on this tragedy!
§ 2. We now come together to consider that instrument which was to heal our wounds & 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’état 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’état où elles se trouvent lors de sa conclusion.” Vattel, l. 4, § 21. “De quibus nihil dictum, ea manent quo sunt loco.” Wolf, § 1222.1 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 a reçu toute sa forme; et elles doivent procurer incessamment l’execution—mais ce traité n’oblige les sujets que du moment qu’l leur est notifié.” And § 25. “Le traité devient par la publication, un loi pour les sujets, et ils sont obligés de se conformer désormais aux dispositions dont on y est convenu.” And another author as pointedly says “Pactio pacis paciscentes statim obligat quam primum perfecta, cum ex pacto veniat obligatio. Subditos vero et milites, quam primum 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 which transactions intervening between the signature & publication were to be nullified.
Congress on the 24th of Mar. 1783. received informal intelligence from the Marquis de la Fayette that Provisional articles were concluded; & on the same day they received a copy of the articles in a letter of Mar. 19. from Genl. Carleton & Admiral Digby. They immediately gave orders for recalling all armed vessels, & communicated the orders to those officers, who answered on the 26th & 27th that they were not authorized to concur in the recall of armed vessels on 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 & 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, & 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, & 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, & of throwing them 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; Beginning, Ist. with those of Exile and Confiscation, which will be considered together, because blended together in most of the acts, & blended also in the same Article of the treaty.
§ 3. It cannot be denied that the state of war strictly permits a nation to seize the property of it’s enemies found within its own limits, or taken in war, and in whatever form it exists whether in action or possession. This is so perspicuously laid down by one of the most respected writers on subjects of this kind, that I shall use his words,
“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 præterea 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 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 its 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 V. 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 & properties, which have been confiscated, belonging to real British subjects, & also of the estates, rights & properties of persons resident in districts in the possession of his Majesty’s arms, & who have not borne arms against the sd U. S.: and that persons of any other description shall have free liberty to go to any part or parts of the thirteen U. S. & therein to remain twelve months, unmolested in their endeavors to obtain the restitution of such of their estates, rights & properties, as may have been confiscated; & that Congress shall also earnestly recommend to the several states a reconsideration & revision of all acts or laws regarding the premises, so as to render the sd laws or acts perfectly consistent, not only with justice & equity, but with that spirit of conciliation, which on the return of the blessings of peace should universally prevail, & that Congress shall also earnestly recommend to the several states, that the estates, rights & properties of such lastmentioned 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 VI. That there shall be no future confiscations made.”
§ 5. Observe that in every other article the parties agree expressly that such & 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 & 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, & the contracts & transactions private & public which have taken place under them; & retrospective laws were forbidden by the constitutions of several of the states. Between persons whose native language is that of this treaty, it is unnecessary to explain the difference between enacting a thing to be done, & 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, & were rendered familiar in the interval between discontinuing the old, & establishing the new governments. The conventions & 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, & 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, & 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 & understood.
§ 6. But 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, & 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; & 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, & still protested against by our Commissioners; & 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. In proof of this, I subjoin extracts from the letters & journals of Mr. Adams & Dr. Franklin, two of our Commissioners, the originals of which are among the records of the department of state, & shall be open to you for a verification of the copies. [No. 7, 8, 9, 10, 11, 12.] These prove beyond all question that the difference between an express agreement to do a thing, & to recommend it to be done, was well understood by both parties, & 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; & 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 & events should open it upon the nation insensibly.
§ 7. The same was perfectly understood by the British ministry and by the members of both houses in 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 for the general reasoning and opinions of the Speakers.
House of Commons
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 pledged 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 our and their calamities.” 9. Debrett’s Parl. register, 233.
“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 Townsend.
“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.
“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 recommendations 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 knee-deep 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.
“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 of 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.”
“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 recommendation of Congress. Rhode Island unanimously refused when the Congress desired to be authorized to lay a duty of 5. per cent. because the funds had failed. Many other instances 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 Par. reg. 44.
“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 anything 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., pages 62, 63.
Some of the Speakers seem to have had no 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 its effect on the legislatures, and, tho willing to see the result of this chance, yet if it failed, they were prepared to take the work of indemnification on themselves.
§ 8. The agreement then being only that Congress should recommend to State legislatures a restitution of estates and liberty to remain a twelvemonth for the purpose of soliciting the restitution and to recommend a revision of all acts regarding the premises, Congress did immediately on the rect. 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 Britannick Majesty’s arms, at any time between the 30th day of November 1782, and the 14 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 bona 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.
The following are the Acts of our catalogue which belong to this head, with such short observations as are necessary to explain them; beginning at that end of the Union, where the war having raged most, we shall meet with the most repugnance to favor:
§ 10.Georgia. [B. 7.] 1783. July 29. 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.
[B. 4.] 1785 Feb. 22. 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.
[B. 8.] 1787 Feb. 10. 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.
[C. 3.] 1785 Feb. 7. 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. [If the policy of Great Britain has certainly not been to negotiate a right for her inhabitants to migrate into these states and become citizens.]1
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. [A. 31.] 1783, Augt. 15. 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 during the war. They were free to restore them, or to refuse. They did the latter and applied them to a public purpose.
[B. 5.] 1784, Mar. 26. An ordinance for amending and explaining the confiscation act. 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.
[B. 6.] 1786 Mar. 22. 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.
[C. 9.] 1784 Mar. 26. 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 law,—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, when sold: requiring from those in lists No. 1, & 3, to pay 12 p 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. & 3. who had borne military commissions against them, for holding any office for seven years.
[Doct. No. 44.] Governor Moultrie’s 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. [B. 3.] 1784. Oct. An act directing the sale of confiscated property.
[B. 2.] 1785 Dec. 29. 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 the property “heretofore confiscated,” and secure purchasers under those former confiscations.
[No. 54 D. 11.] 1790. The case of Bayard v. Singleton adjudged in a court of judicature in North 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.
1785, Nov. 19. An act was passed to restore a confiscated estate to the former proprietor, Edward Bridgen.
[C. 7.] 1784 Oct. An act to describe and ascertain such persons as owed allegiance to the state, and impose certain disqualifications on certain persons therein named.
[C. 8.] 1785, Nov. An act to amend the preceding act.
[C. 1] 1788 Apr. An act of pardon and oblivion. The two first of these acts exercised the right of the state to describe who should be its citizens, and who should be disqualified from holding offices. The last, entitled 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 October 18, 1784, they declared there should be no future confiscations. [No. 13.] 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—
[C. 5.] 1783, Oct. The act prohibiting the migration of certain persons to this commonwealth, and for other purposes therein mentioned, which was afterwards amended by—
[C. 6.] 1786 Oct. An act to explain and amend the preceding.
These acts after declaring who shall 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, 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. [B. 9.] 1785. Nov. An act to vest certain powers in the Governor and Council. Sect. 3.
[B. 10.] 1788 Nov. An act to empower the Governor and Council to compound with the discoveries of British property, and for other purposes. These acts relate purely to property which had been confiscated during the war; and the state not choosing 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
1786, Nov. 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.
[D. 11.] 1790. The 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 case escheated to the state. Whereupon the legislature immediately interposed and passed a special act allowing the benefits of the succession 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 sales of their property as appears by Mr. Read’s letter and that all persons were permitted to return, and such as chose it have remained there in quiet to this day. [No. 15].
§. 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 1790, August [C. 15]: 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 of 1783, Jany. 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 of congress [No. 16]. 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 alleged against this state as to the recommendatory Article, is
[A. 33.] 1783. Dec. 23, An act to appropriate certain forfeited estates. 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. [No. 41.] Governor 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 the restoration of property. See document No. 17. containing their reasons. They passed however 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 alleged against this state after the treaty of peace. This was
[A. 5.] 1790. An act directing certain confiscated estates to be sold. The title shews they 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. [No. 18.]
§. 20.Rhode Island. The titles of 4. acts of this state are cited in your appendix, to wit:
1783, May 27, An act to send out of the State N. Spink and I. Underwood who had formerly joined the enemy and were returned to Rhode Island. [C. 11]
1783, June 8. An act to send Wm Young theretofore banished out of the state and forbidden to return at his peril. [C. 12]
1783, June 12, An act allowing Wm Brenton late an absentee, to visit his family for one week, then sent away not to return. [C. 13]
1783, Oct, 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 for that district, says in his letter, [Doct. No. 19] he had sent me all the acts of that legislature that affect either the debts or the persons of British subjects, or American refugees. [C. 14] The acts 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, you say the book is no longer in your possession. These circumstances will I hope, excuse my not answering or admitting these acts, and justify my proceeding to observe that nothing is produced against this state on the subject after the treaty; and the District attorney’s letter before cited informs us that their courts considered the treaty as paramount to 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 been restored and the rents and profits accounted for. Governor Collins’ letter [No. 20.] is a further evidence of the compliance of this state.
§. 21.Massachusetts. 1784, Mar. 24. 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 [C. 2]
1784, Nov. 10. 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. [B. 1]
§. 22.New Hampshire. Against New Hampshire nothing is alleged, that State having not been invaded at all, was not induced to exercise any acts of rigor against the subjects of 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. 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 not one of them touched an estate which had not been before confiscated, for you will observe,1 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 divested 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 notification of the treaty: & consequently it will not be necessary to notice again this part of the VIth. Article.
§. 24. 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 staied within the British lines, but had not borne arms] certainly comprehended a virtual acquiescence in their right to reside where their property was situated, & 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 & 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 & 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; & as to British subjects, by the silence of the article, & the improbability that the British Plenipotentiary meant to stipulate a right for British subjects to emigrate & become members of another community.—
§ 25. Again in pa. 34, it is said, “The nation of Gr. Britain has been involved in the payment to them of no less a sum than four million 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, & not without grounds, that the glimmering of hope provided for by the recommendatory article, was to quiet for the present the clamours of the sufferers, & to keep their weight out of the scale of opposition to the peace, trusting to time & events for an oblivion of these claims, or for 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 & 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. 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; 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, tho’ in nowise 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, & 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 & 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 worse of the bargain by the alternative you chose to accept, of indemnifying your own sufferers, rather than ours.
§ 26. II. The article of Debts is next in order: but, to place on their true 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 Dec. 15.
In the VIIth. article it was stipulated that his Britannic majesty should withdraw his armies, garrisons & 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 Mar. 1783, as provisionally agreed, & on the 5th of April they received official notice from their court of the conclusion & ratification of the preliminary articles between France, Spain & Great Britain, which gave activity to ours, as appears by the letter of Sir Guy Carleton to Genl Washington dated Apr. 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, Genl Washington declared to him his sense & his surprise. In the letter of Sir Guy Carleton of May 12 (annexed to mine to you of the 15th of Dec) 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, & 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, Genl Carleton went on in daily infractions, embarking from time to time, between his notice of the treaty and the 5th of April, & the evacuation of New York Nov. 25th, 3000. negroes, of whom our Commissioners had inspection, and a very large number more, in public & private vessels, of whom they were not permitted to have inspection. Here then was a direct, unequivocal, & avowed violation of this part of the VIIth. article, in the first moments of its 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, & put the Commanding officer on his guard, he says directly he will go through with the act, & leave it to his court to adjust it by compensation.
§ 27. By the same article, his Britannic Majesty stipulates that he will, with all convenient speed, withdraw his garrisons from every post within the U. S. “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, & 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.”1 The term in the treaty, with all convenient speed, amounts to the same thing, & 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, & persons; & 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 tho’ Genl 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 & stores; the seat, as it were, of their general government, & the asylum of those who had fled to them. A great quantity of shipping was necessary therefore for the removal, & 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,1 Detroit, Niagara, Oswego, Oswegatchie, Point au Fer, Dutchman’s point were not of this magnitude. The orders for evacuation, which reached Genl 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, & 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, & the water connecting them; or by crossing immediately over into their own territory, & 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 for 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 3d of Aug, 1783, Majr-Genl Baron Steuben, by orders from Genl Washington, having repaired to Canada for this purpose, wrote the letter [No. 22] to Genl Haldimand, Governor of the province, & 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, if they existed, the middle of August. See Baron Steuben’s letter [No. 24.]
Again on the 19th of Mar. 1784, Governor Clinton of New York, within the limits of which state some of these posts are, writes to Genl Haldimand the letter [No. 25], and that General, answering him May 10, from Quebec, says, “not having had the honor to receive orders & 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. [No. 26.]
Again on the 12th of July, Colo Hull, by order from Genl. Knox the Secretary at War, writes to Genl Haldimand, the letter [No. 27,] and General Haldimand gives the answer of the 13th, [No. 28,] wherein he says “Tho’ 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! Now, is it not fair to conclude, if the order was not arrived on the 13th of Aug. 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, & 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 & unimportant as to us, setting aside all consideration but of interest & safety? 1. It cut us off from the Furtrade, which, before the war, had been always of great importance as a branch of commerce, & as a source of remittance 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 & their communications. 2. It secluded us from connection with the Northwestern Indians, from all opportunity of keeping up with them friendly & neighborly intercourse, brought on us consequently, from their known dispositions, constant & expensive war, in which numbers of men, women & children, have been, and still are daily falling victims to the scalping knife; & 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; & 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 American mind?—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 waive 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 Genl 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 & demand reparation, and that, in the meantime, Genl Washington continue his remonstrances to the British commanding officer, & insist on the discontinuance of the measure. [See document No. 29.]
§ 30. The state of Virginia, materially affected by this infraction, 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, 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 & 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 & fraudulent assignments of debt, and, as to others, allowed real & personal estate to be tendered in discharge of executions: the effect of which was 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, & after a second refusal by the British commanding officer to deliver up the posts, they came to the resolution [No. 30.] reciting specially the infraction respecting their negroes, instructing their delegates in Congress to press for reparation; & 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 & every act or acts of assembly as prohibits the recovery of British debts; & at the same time [E. 6.] the act to repeal part of an act for the protection & encouragement of the commerce of nations acknoleging the independance of the U S of America. The former was not to be in force till the evacuation of the posts & 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 & 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 & encouragement of the commerce of nations acknoleging the independance of the U S. 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 vender 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, & 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 British infractions, urged thereto by the desolated condition in which their armies had left that country, by the debts they owed, & the almost entire destruction of the means of paying them. They passed [D. 7. 20.] 1784 Mar 26, An Ordinance respecting the recovery of debts, suspending the recovery of all actions, as well American as British, for 9. months, & 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 & payment of debts, & 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, & for other purposes therein mentioned: and
[D. 22.] 1788. Nov. 4, An act to regulate the payment & recovery of debts, & to prohibit the importation of negroes for the time therein limited; & 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, & 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 everybody, received everybody, restored all confiscated lands not sold, & the prices of those sold.
§. 32. Rhode island next acted on the British infractions 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, Mar. An act to enable any debtor in jail, on execution, at the suit of any creditor, to tender real, or certain specified 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, & repeated & constant refusals of compliance on their part.
§. 33. New Jersey did the same thing by:
[D. 13.] 1786. Mar 23. An act to direct the modes of proceedings on writs on fieri facias & for transferring lands & chattels for paiment of debts, and
[D. 18.] 1786. May 26. An act for striking & making current 100,000£ in bills of credit to be let out on loan, and
[D. 17.] 1786. June 1. An act for making bills 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. August 14. An act for emitting the sum of £50,000 in bills of credit, & for establishing a fund for the redemption, & 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, & 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 accts. &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.
§. 35. With 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, & most particularly Georgia, S. Carolina, N. Carolina, Virginia, New York, & Rhode island had been ravaged by an enemy, movable property carried off, houses burnt, lands abandoned, the proprietors forced off into exile & 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 moment’s hesitation on the part of the creditors, to allow paiment by instalments annually for 7 years; & that this arrangement was not made, was neither his fault nor ours.
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, and excluding valuable branches of it from their home markets by prohibitory duties. The means of paiment constitute one of the motives to purchase, at the moment of purchasing. If these means are taken away 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, & the least injurious of those it is capable of producing. The instalment acts before enumerated have been much less general, & for a shorter term, than what the chairman of the American merchants thought reasonable. Most of them required the debtor to give security in the meantime, to his creditor, & provided complete indemnification of the delay by the paiment of interest which was enjoined in every case.
§ 36. The 2d. 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 & reason: for it may be safely affirmed that neither natural right nor reason subjects the body of a man to restraint for debt. It is one of the abuses introduced by commerce & credit, & which even the most commercial nations have been obliged to relax, in certain cases. The Roman law, the principles of which are 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 bankruptcy) release the body. Many of the U. S. do the same, in all cases, on a cession of property by the debtor. The levari facias, an execution affecting only the profits of lands, is the only one allowed in England in certain cases. The Elegit, another execution of that & 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, & if not sufficient, one half only of his lands are then to be delivered to the pl. 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, & 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, 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.—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 foreigner can expect is to be treated as a native citizen.
§ 37. The 3d 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, & 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, & other nations. When any nation of Europe is attacked by another, it has neighbors with whom it’s accustomary commerce goes on, without interruption; & it’s commerce with more distant nations is carried on by sea in foreign bottoms at least 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 the war; so that property sells as readily & as well, for real money, at the close, as at the commencement of the war. But how different was our case: on the North & South were our enemies; on the West, desarts inhabited by savages in league with them: on the East an ocean of 1000. leagues, beyond which indeed were nations who might have purchased the produce of our soil, & have given us real money in Exchange, & 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 entitled to partake of the benefit 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, & 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 U. S. 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; & reason & authority declare “Si l’empechement est reel, il faut donner du tems; car nul n’est tenu á 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, quo 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 firmness 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 to suffer only a short lived and not great depreciation of value; nor did they continue it’s quality, as a tender, after the first paroxysms of distress were over.—Here too it is to be observed that natives were to receive 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, & 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, & the interests & the reason of their creditors approved.
§ 38. It is to be observed that during all this time, Congress, who alone possessed the power of peace & war, of making treaties, & consequently of declaring their infractions, had abstained from every public declaration, & 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, & 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, & inverting the natural order of cause & effect, alledged that these proceedings of ours were the cause of the infractions which they had committed months & 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 & 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, tho’ at the expense of its own national credit & importance. I flatter myself however, Sir, that justice will speedily be done to British creditors, & I can assure you, Sir, that whenever America shall manifest a real intention to fulfill 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 & complete effect.” Facts will furnish the best commentary on this letter. Let us pursue them.
The Secretary for foreign affairs of the U. S. by order of Congress, immediately wrote circular letters to the Governors of the several states, dated May 3. 1786. [No. 31.] to obtain information how far they had complied with the proclamation of Jan. 14. 1784. & the recommendation accompanying it; & Apr. 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 & execution of treaties, which on being constitutionally made, become, by the Confederation, a part of the law of the land, & as such independant of the will & power of the legislatures: that, in this point of view, the state acts establishing provisions relative to the same objects, & 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 & 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 & parts of acts repugnant to the treaty, & 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 Gr. Britain.
§ 39. In consequence of these letters N. Hampshire, Massachusets, Rhode island, Connecticut, New York, Delaware, Maryland, Virginia & N. Carolina passed the acts No. 32, 33, 34, 35, 36, 37, 38, 39, 40. New Jersey & Pennsylvania declared that no law existed with them repugnant to the treaty [see Documents 41, 42, 43.] Georgia had no law existing against the treaty. South Carolina indeed had a law existing, which subjected all persons 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 Gr. Britain to compliance, & had an express repeal been really necessary.
§ 40. 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 & demonstrated it, & the several states by their acts & 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 before mentioned, the same principle will be found acknoleged in several of the Documents hereto annexed for other purposes. Thus, in Rhode island, Governor Collins, in his letter, [No. 20.] says “The treaty, in all its absolute parts, has been fully complied with, & to those parts that are merely recommendatory & 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 U. S. in 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, & subsequent to the ratification thereof, no proceedings have been 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, attorney for the U. S., says, in his letter [No. 60.] “The judges have uniformly, & without hesitation, declared in favor of the treaty, on account of it’s being the supreme law of the land. On this ground, they have not only discharged attainted traitors from arrest, but have frequently declared that they were entitled by the treaty to protection.” 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 court decided that the treaty not only repealed the law for the future, but for the past also, & decreed that the def should pay the money over again to that British creditor. In Virginia, Mr. Monroe, one of the Senators of that state in Congress, and a lawyer of eminence tells us [No. 52.] that both court & 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 Oct. 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, & it is therefore unfit for them to determine whether the payments so made into the loan office be good or void between the creditor & debtor.” In New York Mr. Harrison, attorney for the U. S. in that district, assures us [No. 45.] that the act of 1782. of that state relative to the debts due to persons within the enemy’s lines, was, immediately after the treaty, restrained by the Superior courts of the state, from operating on British creditors, & 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 to the law of their state.
§ 41. The very case of Rutgers v. Waddington [E. 8.] which is a subject of complaint in your letter, is a proof that the courts consider the treaty as paramount to 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 4, 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.] Waddington, a British subject had occupied a brew house in New York belonging to Rutgers, an American, while the British were in possession of New York. During a part of the time he had only permission from the Quartermaster General; for another part he had an order of the Commanding officer to authorize his possession. After the evacuation of the city, Rutgers, under the authority of this law of the state, brought an action against Waddington for rent & damages, in the Mayor’s court of New York. Waddington 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: & gave judgment for that part, in favor of the defendant, but for the time he held the house under permission of the Quartermaster 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 & authority existing at the time & place. The tenure of the def. under the Quartermaster genl. was not so conformable. That under the commanding officer was. Some may think that murders and other crimes and offences characterized as such by the authority of the time & 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, & the question would have been authoritatively decided by the superior court, had not an amicable compromise taken place 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 & 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 knolege, and certainly no agency in his prosecution, John Smith Hatfield, a refugee also from Jersey, & some others of the same description, seized him, against the express orders of the British commanding officer, brought him out of the British lines, & Hatfield 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, & 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 & 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 & 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 persecutions meant to cover authorized acts only, and not murders & other atrocities disavowed by the existing authority, arrested Hatfield. 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 & the integrity of the judges, have determined to plead the treaty, & not even give themselves the trouble of asking a release from the legislature: & the case is now depending. See the letter of Mr. Boudinot, member of Congress for Jersey. [No. 47.]
§ 43. In Georgia, Judge Walton, in a charge to a Grand Jury, says “The state of Rhode island having acceded to the Federal constitution, the Union & Government have become compleat.—To comprehend the extent of the General government, & to discern the relation between that & those of the states, will be equally our interest & duty. The Constitution, laws, & treaties of the Union are paramount.” [See Georgia Gazette Aug. 7. 1790.] 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 & 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, & gave judgmt for the pls.
§ 44. The integrity of those opinions & proceedings of the several courts should have shielded them from the insinuations hazarded against them. In pa 9. & 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, si quod subditi nostri hostibus nostris debent, princeps a subditus suis revera exegerit. Si exegerit, recte solutum est; si non exegerit, pace facta, reviviscit jus pristinum creditoris”—“secundum hæc inter gentes fere convenit, ut nominibus bello publicatis, pace deinde factâ, exacta censeantur periisse, et maneant extincta; non autem exacta reviviscant et restuantur veris creditoribus.” Bynk. Quint. J. P. l. 1, c. 7. But what said the judges of the state-court of Maryland in the case of Mildred & Dorsey? That a debt, forced from an American debtor into the treasury of his sovereign, is not extinct, but shall be paid over again by that debtor to his British creditor. Which is most propitious the unbiassed foreign Jurist, or the American judge charged with dispensing justice with favor & partiality? But from this you say there is an appeal. Is that the fault of the judge, or the fault of anybody? 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 & 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 theSupreme federal court be meant the Supreme court of the U. S. I have had their records examined in order to know what may be the case here alluded to; & I am authorized to say there neither does nor ever did exist any cause, before that court, between a British subject & a citizen of the U. S. See the certificate of the clerk of the court [No. 48.] If by the Supreme federal court be meant one of the Circuit courts of the U. S. then which circuit, in which state, & what case is meant? In the course of the inquiries I have been obliged to make to find whether there exists any case, in any district of any circuit court of the U. S. which might have given rise to this complaint, I have learned that an action was brought to issue & argued in the circuit court of the U. S. in Virginia at their last term, between Jones a British subject pl & Walker an American def. wherein the question was the same as in the case of Mildred & 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, & the case being primæ 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, & having characters & consciences to satisfy, they followed the example so habitually & so laudibly set by the courts of your country & of every country where law, & not favor, is the rule of decision, of taking time to consider. Time & 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; & 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, 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 Gr 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 [No. 52, 53,] is that tho’ there have been accidental checks in some of the subordinate courts, arising from the chicanery of the debtors, & 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 Gr 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, & those to the South of that.
As to Maryland, the joint certificate of the Senators & delegates of the state in Congress, the letter of Mr. Tilghman a gentleman of the law in the same state, & that of Mr. Gwinn, clerk of their General court, prove that British suits have been maintained in the superior & 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, & have recovered in due course of law & remitted large debts, as well under contracts previous, as subsequent, to the war. [No. 49. 50. 51.]
In Virginia, the letters of Mr. Monroe & Mr. Giles, members of Congress from that state, & lawyers of eminence in it, prove that the courts of law in that state have been open and freely resorted to by the British creditors, who have recovered & levied their monies without obstruction: for we have no right to consider as obstructions the dilatory pleas of here & there a debtor distressed perhaps for time, or even an accidental error of opinion in a subordinate court, when such pleas have been overruled, & 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. [No. 52, 53.]
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; & he names a particular case of Elmesley v. Lee’s executors “of the recovery of a British debt in the Superior court at Edenton.” See Mr. Johnston’s letter, [No. 54.]
In South Carolina, we learn [from No. 55,] of particular judgments rendered, & prosecutions carried on, without obstacle, by British creditors, & 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 & 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 & foreigners of all other nations were equally subjected, then the law imposing them was a mere nullity.
In Georgia, the letter of the Senators & 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; & that the federal court is as open & unobstructed to British creditors there, as in any other of the U. S., and this is further proved by the late recovery of Brailsford & 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 Gr. 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 the summer of 1783. the Definitive treaty not yet signed in Europe, much less known & 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 & times of paying British debts would have been settled in the Definitive treaty. [That the treaty should be made known to the legislature of the state, or in other words to the state, was certainly material. Tho’ it’s ratification of them was not, but that it should have been definitively formed, signed & 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, & 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, & 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 disposition dont ou y est convenu?’ Vattel. l. 4. §. 25. ‘Pactio paci paciscentis statim obligat quamprimum perfectum cum ex pacto veniat obligatio subditos vero et milites, quamprimum iisdem fuerit publicata; cum de eâ ante publicationem ipsiis certo constare non possit.’ 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: has been seen in his charge to a grand jury before spoken of.]1 No. 58. shews that such arrangements were under contemplation. 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 & 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, & 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, & 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 the treaties, when duly compleated, that they are paramount to 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, 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, & with effect: yet it has often been matter of surprise that more were not brought, & earlier, since it is most certain that the courts would have sustained their actions, & 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 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 U. S., whenever the creditors would chuse that recourse, and would press, if necessary, to the highest tribunals, would be found as open to their suits, & as impartial to their subjects, as theirs to ours.
§ 50. 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 & 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, & 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 smoking. 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 U. S. nor any where the laws have a more regular course, or are more habitually and chearfully 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. 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 Gr 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 & 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 1. Those who were insolvent at that time. 2. Those solvent then who became insolvent during the operations of the war, a numerous class. 3. Those solvent at the close of the war, but insolvent now. 4. Those solvent at the close of the war, who have since paid or settled satisfactorily with their creditors, a numerous class also. 5. Those solvent then & now, who have neither paid, nor made satisfactory arrangements with their creditors. This last class, the only one now in question, is little numerous, & 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 Gr. Britain, at this moment, of separate 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. In drawing a comparison between the proceedings of Gr Britain & the U. S. you say pa 35. “The conduct of Gr Britain, in all these respects, has been widely different from that which has been observed by the U. S. In the courts of law of the former country, the citizens of the U. S. have experienced without exception the same protection & 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 & partiality will be ultimately corrected. With this qualification we have heretofore been in the habit of considering the administration of justice in Gr Britain as extremely pure. With the same qualification we have no fear to risk everything which a nation holds dear on the assertion 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 & 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 sterl 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 U. S. who has delivered £43,000 sterl. 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 Gr Britain though his debtor is found there, is in custody of the court, and acknoleges 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, & 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. III. Interest. It is made an objection to the proceedings of our legislative & 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 legislative 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 & 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 inconveniences 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, & they must finish in the hands of fallible men as judges. If the error be evident, palpable, et in re minime dubiâ, it then 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 enquire 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, & palpable degree, which proves it to flow from the wickedness of the heart, & not error of the head in the judges, then it is 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 produce 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 lawful impediment to the recovery of bonâ fide debts. Nothing is said of Interest on these debts: and the sole question is Whether where a debt 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, & countries little commercial. From this, as is a general rule, a few special cases are excepted. In France particularly the exceptions are those of Minors, Marriage portions, & 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 & 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, & perhaps in some other Commercial and catholic countries. But even in England, the allowance of interest is not given by express law, but rests on the discretion of judges & 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. la 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 & delivered. 3. Wilson. 206.
5. On book debts, open accounts, or simple accounts. 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 & 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 & sacred, as to give a right to interest on it under all possible circumstances. The words of Lord Mansfield, Dougl. 753. where he says “that the question was what was to be the rule for assessing the damage, & that, in this case, the interest ought to be the measure of the damage, the action being for 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 & 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; & I do not know that any of the states have changed them in this particular. But there is one rule of your & 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, & apply to it the circumstances of our case. It is laid down in Vin. abr. Interest. c. 7, & 2. Abr. eq. 5293. and elsewhere in these words. “Where, by a general & 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 anywhere that nothing wasmade 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 cloathing or consumption were from 4. to 8. times their usual price. A bushel of salt was usually sold for 100 lb. 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, & the debtor, as nominal holder, stood ultimate ensurer 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 risque of the property was not worth the interest of it’s price?—General calamity then prevented profit, & consequently stopped interest, which is in lieu of profit. The creditor says indeed he has laid out 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 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 act 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 Gr 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 & 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, & sometimes by the creditor himself, as many 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 generally of the creditors & their agents here was to withdraw from the U. S. with their books & papers. 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.—We 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 treaty [No. 58] shews that the omission to express interest in the treaty was not merely an oversight of the parties, that it’s allowance was considered by our Plenipotentiaries as a thing not to be intended in the treaty, was declared against by Congress, & that declaration communicated to Mr. Hartley. After such an explanation, the omission is a proof of acquiescence & an intention not to claim it.—It appears then that the Debt and interest on that Debt are separate things in every country, & 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 a determinate & vested thing.
While the taking interest on money has thus been considered in some countries 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 everywhere, & 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 restituendæ, restituendi quoque sunt fructus a die concessionis” says Wolf. § 1224. and Grotius “cui pace res conceditur, ei et fructus conceduntur a tempore concessionis.non retro.” 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.
These reasons, & others like these, have probably operated on the different courts to produce decisions that “no interest should run during the time this general & 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 have been uniform in the allowance of interest before, & since the war, but not of that claimed during the war. Thus we know by [E. 1.] the case of Neate’s exrs v. Sands in New York, & Mildred v. Dorsey in Maryland, that in those states, interest during the war is disallowed by the courts. By [D. 8.] 1784. May. the act relating to debts due to persons who have been & 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 exrs, and [E. 3.] Hare v. Allen explained in the letter of Mr. Rawle Attorney of the U. S. [No. 59.] And by the letter of Mr. Lewis, judge of the District court of the U. S. [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 gave interest. In all the other states I believe, it is left discretionary in the courts and juries. In Massachusets 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 Apr. 19. 1775. & Jan. 20. 1783. But in 1787, when there was a general compliance enacted thro’ all the U. S. in order to see if that would produce a counter-compliance, their legislature passed the act repealing 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 U. S. 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 & 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 & proceedings prior to the Treaty of Peace, considering them as settled by that instrument, & 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. 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: & moreover that it was particularly explained by the American negotiators that the legislatures would be free to comply with the recommendation or not, & 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 & bonâ fide:
That these states refused or complied, in a greater or less degree, according to circumstances, but more of them & 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 authorized by the modern & 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 Aug 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:
And there can be no reason why it should have been inconvenient to give this order as early.
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 & neighborly intercourse with the Indian nations, & consequently keeping us in constant, expensive & barbarous war with them.
The second, by withdrawing the cultivators of the soil, the produce of which was to pay the debts.
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 stipulation 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 & more practicable times of payment:
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.
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.
[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.]1
3. That, induced at length by assurances from the British court, that they would concur in a fulfilment of the treaty,
Congress, in 1787, declared to the states it’s will that even the appearance of obstacles raised by their acts should no longer continue,
And required a formal repeal of every act of that nature; & 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 in any state of the Union, except one:
And even that one could not have forborne; if any symptoms of compliance from the opposite party had rendered a reiterated requisition from Congress, important.
4. That indeed the requiring such a repeal, was only to take away pretext: for
That it was at all times perfectly understood that Treaties controuled the laws of the states:
The Confederation having made them obligatory on the whole:
Congress having so declared and demonstrated them:
The legislatures & executives of most of the states having admitted it:
& the Judiciaries, both of the separate & 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 & course of recovering their debts at law
That the class of separate & unsettled debts, contracted before the war, forms now but a small proportion of the original amount:
That the integrity and independance of the courts of justice in the U S. are liable to no reproach
Nor have popular tumults furnished any ground for suggesting that either courts or creditors are overawed by them in their proceedings.
III. Proceeding to the article of Interest, I have observed
That the decision Whether it shall, or shall not be allowed durg the war, rests, by our constitution, with the Courts altogether.
That, if these have generally decided against the allowance, the reasons of their decisions 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 & sacred,
As to give a right to Interest, under all possible circumstances, either there or here:
That, of these circumstances, Judges & Jurors, are to decide in their discretion, & are accordingly in the habit of augmenting, diminishing or refusing interest in every case, accordg 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. & def. equally innocent of that cause,
The question, who should avoid loss? would be in favor of the party in possession:
And, à 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 paiment, both of Principal & interest, ye. 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 British minister was heretofore sensible of the weight of the objections to the claim of Interest:
That the Declarations of Congress, & our Plenipotentiaries, previous to the Definitive treaty, & 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:
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 & flagrant wrong, in re minimé dubiâ:
And to take away all pretence of withholding execution of the treaty, by way of reprisal for that cause.
§ 57. I have now, sir, gone through the several acts & 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 to view, and the result has been, as you have seen
1. That there was no absolute stipulation to restore antecedent confiscations, & that none subsequent took place:
2. That the recovery of the debts was obstructed validly in none of our states, invalidly only in a few, & that not till long after the infractions committed on the other side: and
3. That the decisions of courts & 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 & treasure to the U. S. Still our desire of friendly accommodation is, & 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, & 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: & 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 & respect Sir your most obedt. & most humble servt.
TO JAMES MADISONJ. MSS.
Philadelphia, June 1. 1792.
My Dear Sir,—
I sent you last week some of Fenno’s papers in which you will have seen it asserted impudently & boldly that the suggestions against Members of Congress were mere falsehoods. I now inclose his Wednesdays paper. I send you also a copy of Hamilton’s notes. Finding that the letter would not be ready to be delivered before the Pr’s return, I make notes corresponding with his, shewing where I agreed, where I did not, & I put his & mine into the Pr’s hand’s to be perused a this leisure. The result was that he approved of the letter remaining as it was particularly on the article of Debts, which he thought a subject of justification & not merely of extenuation.—He never received my letter of the 23d till yesterday. He mentioned it to me in a moment when nothing more could be said than that he would take an occasion of conversing with me on the subject.
I have letters from France concerning the appointment there in the severest terms.
TO C. W. F. DUMASJ. MSS.
Philadelphia, June 3, 1792.
* * * The prices of our funds have undergone some variations within the last three months. The six percents were pushed by gambling adventurers up to 26/ or 27/ the pound. A bankruptcy having taken place among them, & considerably affected the more respectable part of the paper holders, a greater quantity of paper was thrown suddenly on the market than there was demand or money to take up. The prices fell to 19/. This crisis is past & they are getting up towards their true value, being at 23/. Tho’ the price of public paper is considered as the barometer of the public credit, it is truly so only as to the general average of prices. The real credit of the U.S depends on the ability, & the immutability of their will, to pay their debts. These were as evident when their paper fell to 19/. as when it was at 23/. The momentary variation was, like that in the price of corn, or any other commodity, the result of a momentary disproportion between the demand & supply.
The unsuccessful issue of our expeditions against the Indians the last year, are not unknown to you. More adequate preparations are making for the present year, in the mean time, some of the hostile tribes have accepted peace & others have expressed a readiness to do the same.
Another plentiful year has been added to those which had preceeded it; & the present bids fair to be equally so, a prosperity built on the basis of Agriculture is that which is the most desirable to us, because to the effects of labour, it adds the effects of a greater proportion of soil. The checks however which the commercial regulations of Europe have given to the sale of our produce, has produced a very considerable degree of domestic manufacture, which so far as it is in the household way, will doubtless continue: and so far as it is more public, will depend on the continuance or discontinuance of this policy of Europe.
TO JAMES MADISONJ. MSS.
Philadelphia June 4. 1792.
I wrote you on the 1st inst. which I will call No. 1. and number my letters in future that you may know when any are missing. Mr. Hammond has given me an answer in writing, saying he must send my letter to his court & wait their instructions. On this I desired a personal interview that we might consider the matter together in a familiar way. He came accordingly yesterday and took a solo dinner with me, during which our conversation was full, unreserved & of a nature to inspire mutual confidence. The result was that he acknoleged explicitly that his court had hitherto heard one side of the question only, & that from prejudiced persons, that it was now for the first time discussed, that it was placed on entirely new ground, his court having no idea of a charge of first infraction on them, and a justification on that ground of what had been done by our states, that this made it quite a new case to which no instructions he had could apply. He found from my expressions that I had entertained an idea of his being able to give an order to the governor of Canada to deliver up the posts, and smiled at the idea; & it was evident from his conversation that it had not at all entered into the expectations of his court that they were to deliver us the posts. He did not say so expressly, but he said that they considered the retaining of the posts as a very imperfect compensation for the losses their subjects had sustained; under the cover of the clause of the treaty which admits them to the navigation of the Missisipi and the evident mistake of the negotiators in supposing that a line due West from the lake of the Woods would strike the Missisipi, he supposed an explanatory convention necessary, & shewed a desire that such a slice of our Northwestern territory might be cut off for them as would admit them to the navigation profit of the Missisipi; &c. &c. He expects he can have his final instructions by the meeting of Congress.—I have not yet had the conversation mentioned in my last. Do you remember that you were to leave me a list of names? Pray send them to me. My only view is that, if the P. asks me for a list of particulars, I may enumerate names to him, without naming my authority, and shew him that I had not been speaking merely at random. If we do not have our conversation before I can make a comparative table of the debts and numbers of all modern nations, I will shew him how high we stand indebted by the poll in that table.—I omitted Hammond’s admission that the debt from the Potowmac North might be considered as liquidated, that that of Virginia was now the only great object, & cause of anxiety, amounting to two millions sterling.—Adieu. Yours affectionately.
TO THE GOVERNOR OF NORTH CAROLINA
Philadelphia, June 6. 1792.
I have the honor to acknolege the receipt of Mr. Smith’s letter of Dec. 9. written during your absence, as also yours of Dec. 26. & Apr. 23. With respect to the question on the dividing line between your government and the State of Kentucky, as that state is now coming into the Union as an independent member, we have delayed taking any measures for settling the boundary till they can be taken in concert with Kentucky.
With respect to the grants of land made by the state of N. Carolina since her deed of cession, south of the French Broad river, I have written to the Governor of that State to ask an explanation whether it has been by error or under any claim of right on their part? As soon as I receive his answer, proper proceedings at law shall be directed against the individual grantees to confirm or vacate their grants according to law. In the mean time I am to desire you to prevent any new settlements being made on those lands in the mildest way which the law authorises and which may be effectual. By new settlements I mean all made since the day of the meeting of the last session of Congress; because the intrusion of those made before that day was stated to Congress, and may be considered as under their consideration. I should think however, even as to those previous settlers, it would be proper for you to require every man to give in his name and a description of the spot of his settlement to prevent new settlers from confounding themselves with them.
TO JAMES MADISONJ. MSS.
Philadelphia June 10. 1792.
The poll of the N. Y. election stood the day before yesterday.
General Schuyler says there will be about 16.000 voters and offers to bet 3. to 1. as far as 500. guineas that Jay will still be elected. However, he seems to be alone here in that expectation. We dined together at the P’s on Thursday, and happening to set next one another we got towards the close of the afternoon, into a little contest whether hereditary descent or election was most likely to bring wise and honest men into public councils. He for the former, Pinckney & myself for the latter.
I was not displeased to find the P. attended to the conversation as it will be a coroboration of the design imputed to that party in my letter.—At a dinner of Jay-ites yesterday, R. M. mentioned to the company that Clinton was to be vice-president, that the Antis intended to set him up. Bingham joined in attesting the project, which appeared new to the rest of the company. I paid Genl. Irvine 50 D. for Mr. More, the receipt he had, vouching it. Adieu yours affectionately.
TO THE U. S. MINISTER TO GREAT BRITAIN
Philadelphia, June 11. 1792.
I have already had the honor of delivering to you your commission as Minister Plenipotentiary of the U. S. at the court of London, and have now that of enclosing your letter of credence to the king, sealed, and a copy of it open for your own information. Mr. Adams, your predecessor, seemed to understand, on his being presented to that court, that a letter was expected for the queen also. You will be pleased to inform yourself whether the custom of that court requires this from us, and to enable you to comply with it, if it should, I enclose a letter sealed for the Queen, and a copy of it open for your own information. Should it’s delivery not be requisite, you will be so good as to return it, as we do not wish to set a precedent which may bind us hereafter to a single unnecessary ceremony.
To you, Sir, it will be unnecessary to undertake a general delineation of the duties of the office to which you are appointed. I shall therefore only express a desire that they be constantly exercised in that spirit of sincere friendship which we bear to the English nation, and that in all transactions with the Minister, his good dispositions be conciliated by whatever in language or attentions may tend to that effect. With respect to their government, or policy, as concerning themselves or other nations, we wish not to intermeddle in word or deed, and that it be not understood that our government permits itself to entertain either a will or opinion on the subject.
I particularly recommend to you, as the most important of your charges, the patronage of our commerce, and it’s liberation from embarrassments in all the British dominions; but most especially in the West Indies. Our Consuls in Great Britain & Ireland are under general instructions to correspond with you as you will perceive by a copy of a circular letter lately written to them, & now inclosed. From them you may often receive interesting information. Mr. Joshua Johnson is Consul for us at London, James Maury at Liverpool, Elias Vanderhorst at Bristol, Thomas Auldjo Vice Consul at Pool (resident at Cowes) and William Knox consul at Dublin. The jurisdiction of each is exclusive & independant and extends to all places within the same allegiance nearer to him than to the residence of any other consul or vice-consul of the U. S. The settlement of their accounts from time to time, and the payment of them, are referred to you, & in this the act respecting Consuls & any other laws made or to be made are to be your guide. Charges which these do not authorize, you will be pleased not to allow. These accounts are to be settled up to the first day of July in every year, and to be transmitted to the Secretary of State. * * *
The peculiar custom in England of impressing seamen on every appearance of war, will occasionally expose our seamen to peculiar oppressions & vexations. These will require your most active exertions and protection, which we know cannot be effectual without incurring considerable expence: and as no law has yet provided for this, we think it fairer to take the risk of it on the Executive than to leave it on your shoulders. You will therefore with all due economy and on the best vouchers the nature of the case will admit, meet those expences, transmitting an account of them to the Secretary of state to be communicated to the legislature. It will be expedient that you take proper opportunities in the meantime of conferring with the minister on this subject in order to form some arrangement for the protection of our seamen on those occasions. We entirely reject the mode which was the subject of a conversation between Mr. Morris & him, which was that our seamen should always carry about them certificates of their citizenship. This is a condition never yet submitted to by any nation, one with which seamen would never have the precaution to comply, the casualties of their calling would expose them to the constant destruction or loss of this paper evidence, and thus the British government would be armed with legal authority to impress the whole of our seamen. The simplest rule will be that the vessel being American, shall be evidence that the seamen on board her are such. If they apprehend that our vessels might thus become asylums for the fugitives of their own nation from impress-gangs, the number of men to be protected by a vessel may be limited by her tonnage, and one or two officers only be permitted to enter the vessel in order to examine the numbers on board; but no press-gang should be allowed ever to go on board an American vessel till after it shall be found that there are more than their stipulated number on board, nor till after the master shall have refused to deliver the supernumeraries (to be named by himself) to the press-officer who has come on board for that purpose, and even then the American consul should be called in. In order to urge a settlement of this point before a new occasion may arise, it may not be amiss to draw their attention to the peculiar irritation excited on the last occasion, and the difficulty of avoiding our making immediate reprisals on their seamen here. You will be so good as to communicate to me what shall pass on this subject, and it may be made an article of convention to be entered into either there or here.
You will receive herewith a copy of the journals of the antient Congress, and of the laws and journals and reports of the present. Those for the future, with gazettes & other interesting papers, shall be sent you from time to time; and I shall leave you generally to the gazettes for whatever information is in possession of the public, and shall specially undertake to communicate by letter, such only relative to the business of your mission as the gazetteers cannot give. From you I ask once or twice a month a communication, of interesting occurrences in England, of the general affairs of Europe, the court gazette, the best paper in the interest of the ministry, & the best of the opposition party, most particularly that one of each which shall give the best account of the debates of parliament, the parliamentary register annually, and such other political publications as may be important enough to be read by one who can spare little time to read anything, or which may contain matter proper to be kept and turned to on interesting subjects and occasions. The English packet is the most certain channel for such epistolary communications as are not very secret, and intermediate occasions by private vessels may be resorted to for secret communications, and for such as would come too expensively burthened with postage by the packets. You are furnished with a cypher for greater secrecy of communication. To the papers before mentioned I must desire you to add the Leyden gazette, paper by paper as it comes out, by the first vessel sailing after it’s receipt.
I inclose you the papers in the case of a Mr. Wilson, ruined by the capture of his vessel after the term limited by the Armistice. They will inform you of the circumstances of his case, and where you may find him personally, and I recommend his case to your particular representations to the British court. It is possible that other similar cases may be transmitted to you. You have already received some letters of Mr. Adams’s explanatory of the principles of the armistice and of what had passed between him & the British minister on the subject. * * *
TO LAFAYETTE1J. MSS.
Philadelphia, June 16, 1792.
Behold you, then, my dear friend, at the head of a great army, establishing the liberties of your country against a foreign enemy. May heaven favor your cause, and make you the channel thro’ which it may pour it’s favors. While you are exterminating the monster aristocracy, & pulling out the teeth & fangs of it’s associate monarchy, a contrary tendency is discovered in some here. A sect has shewn itself among us, who declare they espoused our new constitution, not as a good & sufficient thing itself, but only as a step to an English constitution, the only thing good & sufficient in itself, in their eye. It is happy for us that these are preachers without followers, and that our people are firm & constant in their republican purity. You will wonder to be told that it is from the Eastward chiefly that these champions for a king, lords & commons come. They get some important associates from New York, and are puffed off by a tribe of Agioteurs which have been hatched in a bed of corruption made up after the model of their beloved England. Too many of these stock jobbers & king-jobbers have come into our legislature, or rather too many of our legislature have become stock jobbers & king-jobbers. However the voice of the people is beginning to make itself heard, and will probably cleanse their seats at the ensuing election.—The machinations of our old enemies are such as to keep us still at bay with our Indian neighbors.—What are you doing for your colonies? They will be lost if not more effectually succoured. Indeed no future efforts you can make will ever be able to reduce the blacks. All that can be done in my opinion will be to compound with them as has been done formerly in Jamaica. We have been less zealous in aiding them, lest your government should feel any jealousy on our account. But in truth we as sincerely wish their restoration, and their connection with you, as you do yourselves. We are satisfied that neither your justice nor their distresses will ever again permit their being forced to seek at dear & distant markets those first necessaries of life which they may have at cheaper markets placed by nature at their door, & formed by her for their support.—What is become of Mde de Tessy and Mde de Tott? I have not heard of them since they went to Switzerland. I think they would have done better to have come & reposed under the Poplars of Virginia. Pour into their bosoms the warmest effusions of my friendship & tell them they will be warm and constant unto death. Accept of them also for Mde de la Fayette & your dear children—but I am forgetting that you are in the field of war, & they I hope in those of peace. Adieu my dear friend! God bless you all. Yours affectionately.
TO THE U. S. MINISTER TO FRANCE.
Philadelphia, June 16, 1792.
My last to you was of Mar. 28. Yours of Apr 6. & 15. came to hand three days ago.
With respect to the particular objects of commerce susceptible of being placed on a better footing, on which you ask my ideas they will shew themselves by the inclosed table of the situation of our commerce with France and England. That with France is stated as it stood at the time I left that country, when the only objects whereon change was still desireable, were those of salted provisions, tobacco & tar, pitch & turpentine. The first was in negotiation when I came away, & was pursued by Mr. Short with prospects of success till their general tariff so unexpectedly deranged our commerce with them as to other articles. Our commerce with their West Indies had never admitted amelioration during my stay in France. The temper of that period did not allow even the essay, and it was as much as we could do to hold the ground given us by the Marshal de Castries’ Arret admitting us to their colonies with salted provisions &c. As to both these branches of commerce, to wit, with France & her colonies, we have hoped they would pursue their own proposition of arranging them by treaty, & that we could draw that treaty to this place. There is no other where the dependance of their colonies on our states for their prosperity is so obvious as here, nor where their negotiator would feel it so much. But it would be imprudent to leave to the uncertain issue of such a treaty, the reestablishment of our commerce with France on the footing on which it was in the beginning of their revolution. That treaty may be long on the anvil; in the meantime we cannot consent to the late innovations without taking measures to do justice to our own navigation. This object therefore is particularly recommended to you, while you will also be availing yourself of every opportunity which may arise of benefiting our commerce in any other part. I am in hopes you will have found the moment favorable on your arrival in France when M. Claviere was in the ministry and the dispositions of the National Assembly favorable to the ministers.—Your cypher has not been sent hitherto because it required a most confidential channel of conveyance. It is now committed to Mr. Pinckney, who also carries the gazettes, laws & other public papers for you. We have been long without any vessel going to Havre. Some of the Indian tribes have acceded to terms of peace. The greater part however still hold off, and oblige us to pursue more vigorous measures for war.—I inclose you an extract from a circular letter to our Consuls, by which you will perceive that those in countries where we have no diplomatic representative, are desired to settle their accounts annually with the minister of the U. S. at Paris. This business I must desire you to undertake. The act concerning Consuls will be your guide, & I shall be glad that the 1st of July be the day to which their accounts shall be annually settled, & paid, and that they may be forwarded as soon after that as possible to the office of the Secretary of state, to enter into the general account of his department which it is necessary he should make up always before the meeting of Congress.
P. S. I have said nothing of our whale oil, because I believe it is on a better footing since the Tariff than before. I inclose you a letter from a person in Lyons to Mr. Short, desiring inquiries might be made after a M. de Sn. Pry, with the result of the inquiries. I am unable to say how you will find the letter writer, as I have no information but what is in the letter itself.
NOTES ON ARTHUR YOUNG’S LETTER1J. MSS.
[June 18, 1792.]
Pa. 3. Is the labour (of Negroes @ £9. sterl.) to be commanded in any amount?—if taken by the year it may be commanded in any amount: but not if wanted on particular occasions only as for harvest, for particular dressings of the land, &c.
Pa. 4. The labour of a negro Mr. Young reckons cent. per cent dearer than the labour of England.—To the hirer of a negro man his hire will cost £9. and his subsistence, cloathing & tools £6. Making £15. sterl. or at the most it may sometimes be £18.—To the owner of a negro his labour costs as follows. Suppose a negro man of 25. years of age costs £75. sterling: he has an equal chance to live 30. years according to Buffon’s table; so that you lose your principal in 30. years. Then say.
There must be some addition to this to make the labour equal to that of a white man, as I believe the negro does not perform quite as much work, nor with as much intelligence.—But Mr. Young reckons a laboring man in England £8. & his board £16. making £24.
Pa. 5. “In the instances of mountain land, the expressions seem to indicate waste land unbuilt & uninclosed.” If Mr. Young has reference here to the notes which Th: J. gave to the President on the subject of mountain land, the following explanation is necessary. The lands therein contemplated are generally about one half cleared of the timber which grew on them, say all the land of the first quality & half that of the middling quality. This half is for the most part inclosed with rail fences which do not last long (except where they are of chestnut) but are easily repaired or renewed. The houses on them for the use of the farm are so slight and of so little worth that they are thrown into the bargain without a separate estimate. The same may be said of the farmer’s house, unless it be better than common. When it is of considerable value, it adds to the price of the land, but by no means it’s whole value. With respect to the soil I saw no uplands in England comparable to it. My travels there were from Dover to London, & on to Birmingham, making excursions of 20. or 30. miles each way. At Edgehill in Warwickshire my road led me over a red soil sometimes like this, as well as I recollect. But it is too long ago to speak with certainty.
Pa. 7. That “in America farmers look to labour much more than to land, is new to me.”—But it is an important circumstance. Where land is cheap, & rich, & labour dear, the same labour, spread in a slighter culture over 100. acres, will produce more profit than if concentrated by the highest degree of cultivation on a small portion of the lands. When the virgin fertility of the soil becomes exhausted, it becomes better to cultivate less & well. The only difficulty is to know at what point of deterioration in the land, the culture should be increased, and in what degree.
Pa. 10. “Can you sell your beef & mutton readily?” The market for them, fresh and in quantity, is not certain in Virginia. Beef well salted will generally find a market, but salted mutton is perhaps unknown.
Pa. 11. “Mutton dearer than beef.” Sheep are subject to many diseases which carry them off in great numbers. In the middle & upper parts of Virginia they are subject to the wolf, & in all parts of it to dogs. These are great obstacles to their multiplication. In the middle and upper parts of the country the carcase of the beef is raised on the spontaneous food of the forests, and is delivered to the farmer in good plight in the fall, often fat enough for slaughter. Hence it’s cheapness. Probably however sheep, properly attended to, would be more profitable than cattle as Mr. Young says they have not been attended to as they merited.
Pa. 13. Mr Young calculates the employment of £5040. worth of land and £1200. farmer’s capital, making an aggregate capital of £6240. in England, which he makes yield 5. pr. cent extra, or 10. pr. cent on ye. whole. I will calculate, in the Virginia way, the employment of the same capital, on a supposition of good management, in the manner of the country.
1. Suppose labourers to be hired, one half men @ £18. the other half women @ £14. for labor, clothg. (I always mean sterlg money).
Produce to be sold annually.
2. Suppose labourers to be bought, one half men, & one half women @ £60. sterl. on an average.
Produce to be sold annually.
In the preceding estimate I have supposed that 200. bushels of wheat may be sold for every labourer employed, which may be thought too high. I know it is too high for common land, & common management, but I know also on good land & with good management it has been done thro’ a considerable neighborhood and for many years. On the other hand I have overrated the cost of laboring negroes, and I presume the taxes also are overrated. I have observed that our families of negroes double in about 25. years, which is an increase of the capital, invested in them, of 4. per cent over & above keeping up the original number.
I am unable to answer the queries on page — as to the expenditure necessary to make an acre of forest land maintain one, two, or three sheep. I began an experiment of that kind in the year 1783. clearing out the under-growth, cutting up the fallen wood but leaving all the good trees. I got through about 20. or 30. acres and sowed it with white clover & green wood, and intended to have gone on through a forest of 4. or 500. acres. The land was excessively rich, but too steep to be cultivated. In spite of total neglect during my absence from that time to this, most of it has done well. I did not note how much labour it took to prepare it; but I am sure it was repaid by the fuel it yielded for the family. The richness of the pasture to be thus obtained, will always be proportioned to that of the land. Most of our forest is either middling, or poor. It’s enclosure with a wood fence costs little, as the wood is on the spot.
TO THOMAS PAINEJ. MSS.
Philadelphia, June 19. 1792.
I received with great pleasure the present of your pamphlets, as well for the thing itself as that it was a testimony of your recollection. Would you believe it possible that in this country there should be high & important characters who need your lessons in republicanism, & who do not heed them? It is but too true that we have a sect preaching up & pouting after an English constitution of king, lords, & commons, & whose heads are itching for crowns, coronets & mitres. But our people, my good friend, are firm and unanimous in their principles of republicanism & there is no better proof of it than that they love what you write and read it with delight. The printers season every newspaper with extracts from your last, as they did before from your first part of the Rights of Man. They have both served here to separate the wheat from the chaff, and to prove that tho’ the latter appears on the surface, it is on the surface only. The bulk below is sound & pure. Go on then in doing with your pen what in other times was done with the sword: shew that reformation is more practicable by operating on the mind than on the body of man, and be assured that it has not a more sincere votary nor you a more ardent well-wisher than Yrs. &c.
TO JOEL BARLOWJ. MSS.
Philadelphia June 20, 1792.
Tho’ I am in hopes you are now on the Ocean home-bound, yet I cannot omit the chance of my thanks reaching you for your Conspiracy of kings and advice to the privileged orders, the second part of which I am in hopes is out by this time. Be assured that your endeavors to bring the Transatlantic world into the road of reason, are not without their effect here. Some here are disposed to move retrograde and to take their stand in the rear of Europe now advancing to the high ground of natural right. But of all this your friend Mr. Baldwin gives you information, and doubtless paints to you the indignation with which the heresies of some people here fill us.
This will be conveyed by Mr. Pinckney, an honest sensible man & good republican. He goes our Min. Plen. to London. He will arrive at an interesting moment in Europe. God send that all the nations who join in attacking the liberties of France may end in the attainment of their own. I still hope this will not find you in Europe & therefore add nothing more than assurances of affectionate esteem from Dr. Sir Your sincere friend & servt.
TO JAMES MADISONJ. MSS.
Philadelphia, June 21, 1792.
Your No. 1. came to hand two days ago. When I inclosed you the papers of the last week I was too much hurried to write. I now therefore write earlier & inclose only one of Fenno’s papers. The residue of the New York election was as follows:
The Otsego votes were rejected, about 1000 in number, of which Jay had about 850. say a majority of 700. so that he was really governor by a majority of 500. votes according to his friends.
The Clintonians again tell strange tales about these votes of Otsego.
I inclose you two New York papers which will put you fully in possession of the whole affair. Take care of them if you please, as they make part of a collection. It does not seem possible to defend Clinton as a just or disinterested man if he does not decline the Office, of which there is no symptom; and I really apprehend that the cause of republicanism will suffer and its votaries be thrown into schism by embarking it in support of this man, and for what? to draw over the antifederalists who are not numerous enough to be worth drawing over.
I have lately seen a letter from — to — on receiving his appointment.1 He pleads guilty to the charge of indiscretion hitherto and promises for the future the most measured circumspection, and in terms which mark him properly & gratefully impressed with the counsel which had been given him pretty strongly as you know. I have made out my table, but instead of setting the proportion of the debt of each country to it’s population, I have done it to its revenues. It is as follows:
I have not yet examined into the debt of the U. S. but I suppose it is to be about 20 years revenue, and consequently that tho’ the youngest nation in the world we are the most indebted nation also. I did not go into the debt & revenues of the United Netherlands, because they are so jumbled between general & provincial, & because a great deal of their debt, is made by borrowing at low interest & lending it at high, & consequently not only this part is to be struck off from the amount of their debt, but so much of the residue of it also as has its interest paid by this means.—Brandt, the famous Indian is arrived here; he dined with the P. yesterday, will dine with Knox to-day, Hammond on Sunday, the Presidt. on Monday.
TO PETER CARRJ. MSS.
Philadelphia June 22, 1792.
I received in due time your favor of May 28. with the notes it contained on the subject of Waste. Your view of the subject as far as it goes, is perfectly proper. Perhaps in such a question in this country, where the husbandry is so different, it might be necessary to go further & enquire whether any difference of this kind should produce a difference in the law. The main objects of the law of waste in England are: 1. to prevent any disguise of the lands which might lessen the reversioner’s evidence of title, such as the change of pasture into arable &c. 2. to prevent any deterioration of it, as the cutting down forest, which in England is an injury, so careful is the law there against permitting a deterioration of the land, that tho’ it will permit such improvements in the same line, as manuring arable lands, leading water into pasture lands, &c., yet it will not permit improvements in a different line, such as erecting buildings, converting pasture into arable &c. lest these should lead to a deterioration. Hence we might argue in Virginia that tho’ the cutting down of forest is, in our husbandry, rather an improvement generally, yet it is not so always, and that therefore it is safer never to admit it. Consequently there is no reason for adopting different rules of waste here from those established in England.
Your objection to Ld. Kaims that he is too metaphysical is just, and it is the chief objection to which his writings are liable. It is to be observed also that tho’ he has given us what should be the system of equity, yet it is not the one actually established, at least not in all it’s parts. The English Chancellors have gone on from one thing to another without any comprehensive or systematic view of the whole field of equity, and therefore they have sometimes run into inconsistencies & contradictions.
Never fear the want of business. A man who qualifies himself well for his calling never fails of employment in it. The foundation you will have laid in legal reading will enable you to take a higher ground than most of your competitors, & even ignorant men can see who it is that is not one of themselves. Go on then with courage, and you will be sure of success; for which be assured no one wishes more ardently, nor has more sincere sentiments of friendship towards you than Dear Sir Your affectionate friend.
TO JAMES MONROEJ. MSS.
Philadelphia, June 23d, 1792.
Supposing the particulars of the New York election interesting to you, I will give you a statement of the votes, as follows:
On the result of these votes Clinton was declared elected. The canvassers set aside the votes of the county of Otsego, where Jay had about 850 Clinton 150, which would have given a majority to Jay. The reason of setting them aside was, that the election was held by the sheriff of the last year, the new one not being yet qualified.
The Jayites say he was sheriff de facto, and, therefore, his proceedings, being in favor of public right, are valid: and that it was Clinton’s fault that there was not a new sheriff.
The Clintonians answer that a new commission had been in good time delivered to Judge Cooper, the Bashaw of Otsego, furious partisan of Jay, who, finding the ex-sheriff strongly in favor of Jay & the new one neutral, kept the commission in his pocket: they say that had all the good votes set aside for irregularity in all the counties been admitted, Clinton had a majority, that in Otsego particularly far the the greater part were the votes of persons unqualified, for instance, in the town of Otsego where were only qualified voters, upwards of 500 votes were received for Mr. Jay.—Among the attacks on Clinton has been an endeavor to prove him concerned in McComb’s great purchase. They therefore took McComb’s deposition.—He swore that Clinton was not, as far as he knew or believed, concerned in that purchase: but that in a purchase he made of ten townships of 10 miles square, each on the St. Lawrence, he had partners, to wit, Genl. Schuyler, Renslaer his son in law, Colo. Hamilton, Genl. Knox, Ogden, and two or three others whose names I forget.—Upon the whole it seems probable that Mr. Jay had a majority of the qualified voters, and I think not only that Clinton would have honored himself by declining to accept, and agreeing to take another fair start, but that probably such a conduct would have insured him a majority on a new election. To retain the Office when it is probable the majority was against him is dishonorable. However there is no symptom of his refusing the Office on this election & from the tumultuous proceedings of Mr. Jay’s partisans, it seems as if the state would be thrown into convulsions—it has silenced all clamour about their bankruptices.—Brandt is arrived here.—Nothing else new or interesting but what the papers will give you. My best affections to Mrs. Monroe, and believe me to be, Dear Sir, your sincere friend and servt.
TO THE SECRETARY OF THE TREASURY
Philadelphia June 24. 1792.
I have the honor to inclose you the answer of the minister of France to the letter I wrote him on the subject of the complaint of Bermuda hundred against the French consul at Norfolk, whereby you will see that he undertakes to have the latter set right. I have not thought it necessary to reply to his observation that ‘Le Consul de Norfolk est dans doute obligé de maintenir les loix de France, aussi bien que le Collecteur de Bermude hundred doit faire observer celles des états-unis’; presuming he can only mean when the former do not interfere with the latter. The supremacy of the laws of every country within itself is too well known to be drawn into question. I shall take care however to state to him in conversation that the latitude of his expression if taken in all it’s extent, would render it enormous. I have the honour to be with every sentiment of respect, Sir, your most obedt. & most humble servt.
TO JAMES MADISONMAD. MSS.
Philadelphia. June 29. 1792.
I wrote you last on the 21st. The present will cover Fenno of the 23d & 27th. In the last you will discover Hamilton’s pen in defence of the bank, and daring to call the republican party a faction. I learn that he has expressed the strongest desire that Marshall should come into Congress from Richmond, declaring that there is no man in Virginia whom he wishes so much to see there; and I am told that Marshall has expressed half a mind to come. Hence I conclude that Hamilton has played him well with flattery & sollicitation, and I think nothing better could be done than to make him a judge. I have reason to believe that a regular attack, in phalanx is to be made on the Residence at the next session, with a determination to repeal it if the further assumption is not agreed to. I think this also comes from Hamilton tho’ it is thro’ two hands, if not more, before it comes to me.
Brandt went off yesterday, apparently in the best dispositions, & with some hopes of effecting peace. A letter received yesterday, from Mr. Short gives the most flattering result of conversations he had had with Claviere & Dumourier. Claviere declared he had nothing so much at heart as to encourage our navigation, & the present system of commerce with us. Agreed they ought immediately to repeal their late proceedings with respect to tobo. & ships, and receive our salted provisions favorably, and to proceed to treat with us on broad ground. Dumourier expressed the same sentiments. Mr. Short had then received notice that G. M. would be there in a few days, and therefore told the ministers that this was only a preliminary conversation on what Mr. Morris would undertake regularly. This ministry, which is of the Jacobin party cannot but be favorable to us, as that whole party must be. Indeed notwithstanding the very general abuse of the Jacobins, I begin to consider them as representing the true revolution-spirit of the whole nation, and as carrying the nation with them. The only things wanting with them is more experience in business, and a little more conformity to the established style of communication with foreign powers. The latter want will I fear bring enemies into the field, who would have remained at home; the former leads them to domineer over their executive so as to render it unequal to it’s proper objects. I sincerely wish our new minister may not spoil our chance of extracting good from the present situation of things. The President leaves this about the middle of July. I shall set out some days later, & have the pleasure of seeing you in Orange. Adieu, my dear Sir.
TO JAMES MADISONMAD. MSS.
Philadelphia, July 3, 1792.
Since my last of June 29, I have received your Nos. 2. & 3. of June 24 & 25. The following particulars occur. Vining has declined offering at the next election. It is said we are to have in his room a Mr. Roach, formerly of the Army, an anticincinnatus, and good agricultural man. Smith of S. C. declines also. He has bought a fine house in Charleston for 5000.£ and had determined not even to come to the next session. But his friends it is said have made him promise to come. One gentleman from S. Carolina says he could not be re-elected. Another says there could be no doubt of his re-election. Commodore Gillon is talked of as his successor. Izard gives out that it is all false that Mr. Smith is so rich as has been pretended, that he is in fact poor, cannot afford to live here, & therefore has retired to Charleston. Some add that he has entered again at the bar. The truth seems to be that they are alarmed, & he driven out of the field, by the story of the modern Colchis. His furniture is gone off from hence. So is Mr. Adam’s. Some say he declines offering at the next election. This is probably a mere conjecture founded on the removal of his furniture. The most likely account is that Mrs. Adams does not intend to come again, & that he will take private lodgings. It seems nearly settled with the Treasuro-bankites that a branch shall be established at Richmond; could not a counter-bank be set up to befriend the agricultural man by letting him have money on a deposit of tobo. notes, or even wheat, for a short time, and would not such a bank enlist the legislature in it’s favor, & against the Treasury bank? The President has fixed on Thursday the 12th for his departure, & I on Saturday the 14th for mine. According to the stages I have marked out I shall lodge at Strode’s on Friday the 20th, and come the next morning, if my horses face Adam’s mill hills boldly, to breakfast at Orange C. H. and after breakfast will join you. I have written to Mr. Randolph to have horses sent for me on that day to John Jones’s about 12 miles from your house, which will enable me to breakfast the next day (Sunday) at Monticello. All this however may be disjointed by unexpected delays here, or on the road. I have written to Dr. Stewart & Ellicot to procure me renseignements on the direct road from Georgetown to Elkner Church which ought to save me 20 or 30 miles.
P. S. I shall write you again a day or two before I leave this.
TO THE COMMISSIONERS OF SPAIN
Philadelphia July 9. 1792.
Information has been received that the Government of West Florida has established an Agent within the territory of the United States belonging to the Creek Indians, and it is even pretended that that Agent has excited those Indians to oppose the marking a boundary between their district and that of the Citizens of the United States. The latter is so inconsistent with the dispositions to friendship and good neighborhood which Spain has always expressed towards us, with that concert of interest which would be so advantageous to the two nations and which we are disposed sincerely to promote, that we find no difficulty in supposing it erroneous. The sending an Agent within our limits we presume has been done without the authority or knowledge of your government. It has certainly been the usage, where one nation has wished to employ agents of any kind within the limits of another, to obtain the permission of that other, and even to regulate by convention and on principles of reciprocity, the functions to be exercised by such Agents. It is not to a nation whose dominions are circumstanced as those of Spain in our neighborhood that we need develop the inconveniences of permitting reciprocally the unlicensed mission of Agents into the territories of each other. I am persuaded nothing more is necessary than to bring the fact under the notice of your government in order to it’s being rectified, which is the object of my addressing you on this occasion; with every assurance that you will make the proper communications on the subject to your court.
TO THE GOVERNOR OF VERMONT
Philadelphia, July 12th, 1792.
I had the honor of inclosing to you on the 9th instant copies of some papers I had received from the British minister here, and I have now that of forwarding some received from him this day. I must renew my entreaties to your Excellency that no innovation in the state of things may be attempted for the present.—It is but lately that an opportunity has been afforded of pressing on the court of Gt. Britain our rights on the question of the posts, and it would be truly unfortunate if any premature measures on the part of your state should furnish a pretext for suspending the negotiations on this subject. I rely therefore that you will see the interest even of your own state in leaving to the general government the measures for recovering it’s rights, and the rather as the events to which they might lead are interesting every state in the highest degree.
TO THE PRESIDENT OF THE UNITED STATESD. S. MSS.
Monticello July 30. 1792.
I received yesterday the letter you did me the honor to write on the 23d inst. covering one from the Governor of Vermont. As the question which party has a right to complain depends on the fact which party has hitherto exercised jurisdiction in the place where the seizure was made, and the Governor’s letter does not ascertain that fact, I think it will be better to wait his answer to my two former letters in which he cannot fail to speak to that point. I inclose a letter just received from Colo. Humphreys; as also one for the Commissioners of the federal territory from myself, covering one from Mr. Blodgett.—The inhabitants of Culpepper are intent on opening a short and good road to the new city. They have had a survey of experiment made along the road I have so much enquired after, by State run church, Champs’ race paths & Sangster’s tavern to George town, and they have reason to believe they may make it shorter by 20. miles and better than any of the present roads. This once done, the counties from Culpepper Southwardly will take it up probably, and extend it successively towards Carolina.
TO THE PRESIDENT OF THE UNITED STATESJ. MSS.
Monticello Sep 9, 1792.
I received on the 2d inst the letter of Aug 23, which you did me the honor to write me; but the immediate return of our post, contrary to his custom, prevented my answer by that occasion. The proceedings of Spain mentioned in your letter are really of a complexion to excite uneasiness, & a suspicion that their friendly overtures about the Missisipi have been merely to lull us while they should be strengthening their holds on that river. Mr. Carmichael’s silence has been long my astonishment: and however it might have justified something very different from a new appointment, yet the public interest certainly called for his junction with Mr. Short as it is impossible but that his knolege of the ground of negotiation of persons & characters, must be useful & even necessary to the success of the mission. That Spain & Gr Britain may understand one another on our frontiers is very possible; for however opposite their interests or disposition may be in the affairs of Europe, yet while these do not call them into opposite action, they may concur as against us. I consider their keeping an agent in the Indian country as a circumstance which requires serious interference on our part; and I submit to your decision whether it does not furnish a proper occasion to us to send an additional instruction to Messrs. Carmichael & Short to insist on a mutual & formal stipulation to forbear employing agents or pensioning any persons within each other’s limits: and if this be refused, to propose the contrary stipulation, to wit, that each party may freely keep agents within the Indian territories of the other, in which case we might soon sicken them of the license.
I now take the liberty of proceeding to that part of your letter wherein you notice the internal dissentions which have taken place within our government, & their disagreeable effect on it’s movements. That such dissentions have taken place is certain, & even among those who are nearest to you in the administration. To no one have they given deeper concern than myself; to no one equal mortification at being myself a part of them. Tho’ I take to myself no more than my share of the general observations of your letter, yet I am so desirous ever that you should know the whole truth, & believe no more than the truth, that I am glad to seize every occasion of developing to you whatever I do or think relative to the government; & shall therefore ask permission to be more lengthy now than the occasion particularly calls for, or could otherwise perhaps justify.
When I embarked in the government, it was with a determination to intermeddle not at all with the legislature, & as little as possible with my co-departments. The first and only instance of variance from the former part of my resolution, I was duped into by the Secretary of the Treasury and made a tool for forwarding his schemes, not then sufficiently understood by me; and of all the errors of my political life, this has occasioned me the deepest regret. It has ever been my purpose to explain this to you, when, from being actors on the scene, we shall have become uninterested spectators only. The second part of my resolution has been religiously observed with the war department; & as to that of the Treasury, has never been farther swerved from than by the mere enunciation of my sentiments in conversation, and chiefly among those who, expressing the same sentiments, drew mine from me. If it has been supposed that I have ever intrigued among the members of the legislatures to defeat the plans of the Secretary of the Treasury, it is contrary to all truth. As I never had the desire to influence the members, so neither had I any other means than my friendships, which I valued too highly to risk by usurpations on their freedom of judgment, & the conscientious pursuit of their own sense of duty. That I have utterly, in my private conversations, disapproved of the system of the Secretary of the treasury, I acknolege & avow: and this was not merely a speculative difference. His system flowed from principles adverse to liberty, & was calculated to undermine and demolish the republic, by creating an influence of his department over the members of the legislature. I saw this influence actually produced, & it’s first fruits to be the establishment of the great outlines of his project by the votes of the very persons who, having swallowed his bait were laying themselves out to profit by his plans: & that had these persons withdrawn, as those interested in a question ever should, the vote of the disinterested majority was clearly the reverse of what they made it. These were no longer the votes then of the representatives of the people, but of deserters from the rights & interests of the people: & it was impossible to consider their decisions, which had nothing in view but to enrich themselves, as the measures of the fair majority, which ought always to be respected.—If what was actually doing begat uneasiness in those who wished for virtuous government, what was further proposed was not less threatening to the friends of the Constitution. For, in a Report on the subject of manufactures (still to be acted on) it was expressly assumed that the general government has a right to exercise all powers which may be for the general welfare, that is to say, all the legitimate powers of government: since no government has a legitimate right to do what is not for the welfare of the governed. There was indeed a sham-limitation of the universality of this power to cases where money is to be employed. But about what is it that money cannot be employed? Thus the object of these plans taken together is to draw all the powers of government into the hands of the general legislature, to establish means for corrupting a sufficient corps in that legislature to divide the honest votes & preponderate, by their own, the scale which suited, & to have that corps under the command of the Secretary of the Treasury for the purpose of subverting step by step the principles of the constitution, which he has so often declared to be a thing of nothing which must be changed. Such views might have justified something more than mere expressions of dissent, beyond which, nevertheless, I never went.—Has abstinence from the department committed to me been equally observed by him? To say nothing of other interferences equally known, in the case of the two nations with which we have the most intimate connections, France & England, my system was to give some satisfactory distinctions to the former, of little cost to us, in return for the solid advantages yielded us by them; & to have met the English with some restrictions which might induce them to abate their severities against our commerce. I have always supposed this coincided with your sentiments. Yet the Secretary of the treasury, by his cabals with members of the legislature, & by high-toned declamation on other occasions, has forced down his own system, which was exactly the reverse. He undertook, of his own authority, the conferences with the ministers of those two nations, & was, on every consultation, provided with some report of a conversation with the one or the other of them, adapted to his views. These views, thus made to prevail, their execution fell of course to me; & I can safely appeal to you, who have seen all my letters & proceedings, whether I have not carried them into execution as sincerely as if they had been my own, tho’ I ever considered them as inconsistent with the honor & interest of our country. That they have been inconsistent with our interest is but too fatally proved by the stab to our navigation given by the French.—So that if the question be By whose fault is it that Colo Hamilton & myself have not drawn together? the answer will depend on that to two other questions; whose principles of administration best justify, by their purity, conscientious adherence? and which of us has, notwithstanding, stepped farthest into the controul of the department of the other?
To this justification of opinions, expressed in the way of conversation, against the views of Colo Hamilton, I beg leave to add some notice of his late charges against me in Fenno’s gazette; for neither the stile, matter, nor venom of the pieces alluded to can leave a doubt of their author. Spelling my name & character at full length to the public, while he conceals his own under the signature of “an American” he charges me 1. With having written letters from Europe to my friends to oppose the present constitution while depending. 2. With a desire of not paying the public debt. 3. With setting up a paper to decry & slander the government. 1. The first charge is most false. No man in the U. S. I suppose, approved of every title in the constitution: no one, I believe approved more of it than I did: and more of it was certainly disproved by my accuser than by me, and of it’s parts most vitally republican. Of this the few letters I wrote on the subject (not half a dozen I believe) will be a proof: & for my own satisfaction & justification, I must tax you with the reading of them when I return to where they are. You will there see that my objection to the constitution was that it wanted a bill of rights securing freedom of religion, freedom of the press, freedom from standing armies, trial by jury, & a constant Habeas corpus act. Colo Hamilton’s was that it wanted a king and house of lords. The sense of America has approved my objection & added the bill of rights, not the king and lords. I also thought a longer term of service, insusceptible of renewal, would have made a President more independant. My country has thought otherwise, & I have acquiesced implicitly. He wishes the general government should have power to make laws binding the states in all cases whatsoever. Our country has thought otherwise: has he acquiesced? Notwithstanding my wish for a bill of rights, my letters strongly urged the adoption of the constitution, by nine states at least, to secure the good it contained. I at first thought that the best method of securing the bill of rights would be for four states to hold off till such a bill should be agreed to. But the moment I saw Mr. Hancock’s proposition to pass the constitution as it stood, and give perpetual instructions to the representatives of every state to insist on a bill of rights, I acknoleged the superiority of his plan, & advocated universal adoption. 2. The second charge is equally untrue. My whole correspondence while in France, & every word, letter, & act on the subject since my return, prove that no man is more ardently intent to see the public debt soon & sacredly paid off than I am. This exactly marks the difference between Colo Hamilton’s views & mine, that I would wish the debt paid to morrow; he wishes it never to be paid, but always to be a thing where with to corrupt & manage the legislature. 3. I have never enquired what number of sons, relations & friends of Senators, representatives, printers or other useful partisans Colo Hamilton has provided for among the hundred clerks of his department, the thousand excisemen, custom-house officers, loan officers &c. &c. &c. appointed by him, or at his nod, and spread over the Union; nor could ever have imagined that the man who has the shuffling of millions backwards & forwards from paper into money & money into paper, from Europe to America, & America to Europe, the dealing out of Treasury-secrets among his friends in what time & measure he pleases, and who never slips an occasion of making friends with his means, that such an one I say would have brought forward a charge against me for having appointed the poet Freneau translating clerk to my office, with a salary of 250. dollars a year. That fact stands thus. While the government was at New York I was applied to on behalf of Freneau to know if there was any place within my department to which he could be appointed. I answered there were but four clerkships, all of which I found full, and continued without any change. When we removed to Philadelphia, Mr. Pintard the translating clerk, did not chuse to remove with us. His office then became vacant. I was again applied to there for Freneau, & had no hesitation to promise the clerkship for him. I cannot recollect whether it was at the same time, or afterwards, that I was told he had thought of setting up a newspaper there. But whether then, or afterwards, I considered it as a circumstance of some value, as it might enable me to do, what I had long wished to have done, that is, to have the material parts of the Leyden gazette brought under your eye & that of the public, in order to possess yourself & them of a juster view of the affairs of Europe than could be obtained from any other public source. This I had ineffectually attempted through the press of Mr. Fenno while in New York, selecting & translating passages myself at first then having it done by Mr. Pintard the translating clerk, but they found their way too slowly into Mr. Fenno’s papers. Mr. Bache essayed it for me in Philadelphia, but his being a daily paper, did not circulate sufficiently in the other states. He even tried, at my request, the plan of a weekly paper of recapitulation from his daily paper, in hopes that that might go into the other states, but in this too we failed. Freneau, as translating clerk, & the printer of a periodical paper likely to circulate thro’ the states (uniting in one person the parts of Pintard & Fenno) revived my hopes that the thing could at length be effected. On the establishment of his paper therefore, I furnished him with the Leyden gazettes, with an expression of my wish that he could always translate & publish the material intelligence they contained; & have continued to furnish them from time to time, as regularly as I received them. But as to any other direction or indication of my wish how his press should be conducted, what sort of intelligence he should give, what essays encourage, I can protest in the presence of heaven, that I never did by myself or any other, directly or indirectly, say a syllable, nor attempt any kind of influence. I can further protest, in the same awful presence, that I never did by myself or any other, directly or indirectly, write, dictate or procure any one sentence or sentiment to be inserted in his, or any other gazette, to which my name was not affixed or that of my office.—I surely need not except here a thing so foreign to the present subject as a little paragraph about our Algerine captives, which I put once into Fenno’s paper.—Freneau’s proposition to publish a paper, having been about the time that the writings of Publicola, & the discourses on Davila had a good deal excited the public attention, I took for granted from Freneau’s character, which had been marked as that of a good whig, that he would give free place to pieces written against the aristocratical & monarchical principles these papers had inculcated. This having been in my mind, it is likely enough I may have expressed it in conversation with others; tho’ I do not recollect that I did. To Freneau I think I could not, because I had still seen him but once, & that was at a public table, at breakfast, at Mrs. Elsworth’s, as I passed thro’ New York the last year. And I can safely declare that my expectations looked only to the chastisement of the aristocratical & monarchical writers, & not to any criticisms on the proceedings of government: Colo Hamilton can see no motive for any appointment but that of making a convenient partizan. But you Sir, who have received from me recommendations of a Rittenhouse, Barlow, Paine, will believe that talents & science are sufficient motives with me in appointments to which they are fitted: & that Freneau, as a man of genius, might find a preference in my eye to be a translating clerk, & make good title to the little aids I could give him as the editor of a gazette, by procuring subscriptions to his paper, as I did some, before it appeared, & as I have with pleasure done for the labours of other men of genius. I hold it to be one of the distinguishing excellencies of elective over hereditary succesions, that the talents, which nature has provided in sufficient proportion, should be selected by the society for the government of their affairs, rather than that this should be transmitted through the loins of knaves & fools passing from the debauches of the table to those of the bed. Colo Hamilton, alias “Plain facts,” says that Freneau’s salary began before he resided in Philadelphia. I do not know what quibble he may have in reserve on the word “residence.” He may mean to include under that idea the removal of his family; for I believe he removed, himself, before his family did, to Philadelphia. But no act of mine gave commencement to his salary before he so far took up his abode in Philadelphia as to be sufficiently in readiness for the duties of the office. As to the merits or demerits of his paper, they certainly concern me not. He & Fenno are rivals for the public favor. The one courts them by flattery, the other by censure, & I believe it will be admitted that the one has been as servile, as the other severe. But is not the dignity, & even decency of government committed, when one of it’s principal ministers enlists himself as an anonymous writer or paragraphist for either the one or the other of them?—No government ought to be without censors: & where the press is free, no one ever will. If virtuous, it need not fear the fair operation of attack & defence. Nature has given to man no other means of sifting out the truth either in religion, law, or politics. I think it is as honorable to the government neither to know, nor notice, it’s sycophants or censors, as it would be undignified & criminal to pamper the former & persecute the latter.—So much for the past. A word now of the future.
When I came into this office, it was with a resolution to retire from it as soon as I could with decency. It pretty early appeared to me that the proper moment would be the first of those epochs at which the constitution seems to have contemplated a periodical change or renewal of the public servants. In this I was confirmed by your resolution respecting the same period; from which however I am happy in hoping you have departed. I look to that period with the longing of a wave-worn mariner, who has at length the land in view, & shall count the days & hours which still lie between me & it. In the meanwhile my main object will be to wind up the business of my office avoiding as much as possible all new enterprize. With the affairs of the legislature, as I never did intermeddle, so I certainly shall not now begin. I am more desirous to predispose everything for the repose to which I am withdrawing, than expose it to be disturbed by newspaper contests. If these however cannot be avoided altogether, yet a regard for your quiet will be a sufficient motive for my deferring it till I become merely a private citizen, when the propriety or impropriety of what I may say or do may fall on myself alone. I may then too avoid the charge of misapplying that time which now belonging to those who employ me, should be wholly devoted to their service. If my own justification, or the interests of the republic shall require it, I reserve to myself the right of then appealing to my country, subscribing my name to whatever I write, & using with freedom & truth the facts & names necessary to place the cause in it’s just form before that tribunal. To a thorough disregard of the honors & emoluments of office I join as great a value for the esteem of my countrymen, & conscious of having merited it by an integrity which cannot be reproached, & by an enthusiastic devotion to their rights & liberty, I will not suffer my retirement to be clouded by the slanders of a man whose history, from the moment at which history can stoop to notice him, is a tissue of machinations against the liberty of the country which has not only received and given him bread, but heaped it’s honors on his head.—Still however I repeat the hope that it will not be necessary to make such an appeal. Though little known to the people of America, I believe that, as far as I am known, it is not as an enemy to the republic, nor an intriguer against it, nor a waster of it’s revenue, nor prostitutor of it to the purposes of corruption, as the American represents me; and I confide that yourself are satisfied that, as to dissensions in the newspapers, not a syllable of them has ever proceeded from me; & that no cabals or intrigues of mine have produced those in the legislature, & I hope I may promise, both to you & myself, that none will receive aliment from me during the short space I have to remain in office, which will find ample employment in closing the present business of the department.—Observing that letters written at Mount Vernon on the Monday, & arriving at Richmond on the Wednesday, reach me on Saturday, I have now the honor to mention that the 22d instant will be the last of our post-days that I shall be here, & consequently that no letter from you after the 17th, will find me here. Soon after that I shall have the honor of receiving at Mount Vernon your orders for Philadelphia, & of there also delivering you the little matter which occurs to me as proper for the opening of Congress, exclusive of what has been recommended in former speeches, & not yet acted on. In the meantime & ever I am with great and sincere affection & respect, dear Sir, your most obedient and most humble servant.
TO ARCHIBALD STUART1
Monticello, Sep 9. 1792.
I wrote you a long letter from Philadelphia early in the summer, which would not now have been worth recurring to, but that I therein asked the favor of you to sound Mr. Henry on the subject you had written to me on, to wit, the amendment of our constitution, and to find whether he would not approve of the specific amendments therein mentioned, in which case the business would be easy. If you have had any conversation with him on the subject I will thank you for the result. As I propose to return from my present office at the close of the ensuing session of Congress, & to fix myself once more at home, I begin to feel a more immediate interest in having the constitution of our country fixed, & in such a form as will ensure a somewhat greater certainty to our laws, liberty, & property, the first & last of which are now pretty much afloat, & the second not out of the reach of every enterprize. I set out for Philadelphia about the 20th, and would therefore be happy to hear from you before that. I am with great & sincere esteem, Dear Sir Your constant friend & servt.
TO CHARLES CLAYJ. MSS.
Monticello, Sep. 11, 1792.
Your favor of Aug. 8, came duly to hand, and I should with pleasure have done what you therein desired, as I ever should what would serve or oblige you; but from a very early period of my life I determined never to intermeddle with elections of the people, and have invariably adhered to this determination. In my own country, where there have been so many elections in which my inclinations were enlisted, I yet never interfered. I could the less do it in the present instance, your people so very distant from me, utterly unknown to me, & to whom I also am unknown; and above all, I a stranger, to presume to recommend one who is well known to them. They could not but put this question to me, “who are you, pray?” In writing the letter to you on the former occasion, I went further than I had ever before done, but that was addressed to yourself to whom I had a right to write, and not to persons either unknown to me or very capable of judging for themselves. I have so much reliance on your friendship and candor as not to doubt you will approve of my sentiments on this occasion, & be satisfied they flow from considerations respecting myself only, & not you to whom I am happy on every occasion of testifying my esteem. I hope to see you in Bedford about May next, and am with great attachment, Dear Sir, your friend & servt.
TO EDMUND RANDOLPHJ. MSS.
Monticello, September 17, 1792.
My Dear Sir,—
The last post brought me your favor of the 26th of August; but it brought me at the same time so much business to be answered by return of post, and which did not admit of delay, that I was obliged to postpone the acknowledgment of yours. I thank you sincerely for what respects myself. Though I see the pen of the Secretary of the Treasury plainly in the attack on me, yet, since he has not chosen to put his name to it, I am not free to notice it as his. I have preserved through life a resolution, set in a very early part of it, never to write in a public paper without subscribing my name, and to engage openly an adversary who does not let himself be seen, is staking all against nothing. The indecency too of newspaper squabbling between two public ministers, besides my own sense of it, has drawn something like an injunction from another quarter. Every fact alleged under the signature of “an American” as to myself is false, and can be proved so; and perhaps will be one day. But for the present, lying and scribbling must be free to those mean enough to deal in them, and in the dark. I should have been setting out to Philadelphia within a day or two, but the addition of a grandson and indisposition of my daughter will probably detain me here a week longer. My best respects to Mrs. Randolph, and am, with great and sincere esteem, dear Sir, your affectionate friend and servant.
TO JAMES MADISONMAD. MSS.
Monticello, Sep. 17, 1792.
My dear Sir,—
I thank you for the perusal of the two letters which are now inclosed. I would also have inclosed Fenno’s two last papers but that Mr. Randolph, who has them, has rode out, if he returns in time they shall be sent you by the bearer. They contain nothing material but the Secretary’s progress in paying the national debt, and attacks and defences relating to it. The simple question appears to me to be what did the Public owe, principal and interest, when the Secretary’s taxes began to run? If less, it must have been paid, but if he was paying old debts with one hand & creating new ones with the other, it is such a game as Mr. Pitt is playing. My granddaughter has been at death’s door. The Doctor left us only this morning. She is now, we think, out of danger. While we sent for him for one patient, two others were prepared for him, to wit, my daughter & a grandson which she produced. All are now doing well, yet I think I shall not be able to leave her till about Tuesday, and even then it will depend on the little accidents to which her present situation leaves her liable. Adieu.
TO THE PRESIDENT OF THE UNITED STATES1J. MSS.
Monticello, Sep. 18, 1792, 2 o’clock p.m.
Your express is this moment arrived with the Proclamation on the proceedings against the laws for raising a revenue on distilled spirits, and I return it herein inclosed with my signature. I think if instead of the words “to render laws dictated by weighty reasons of public exigency & policy as acceptable as possible” it stood “to render the laws as acceptable as possible” it would be better. I see no other particular expressions which need alteration. I am sincerely sorry to learn that such proceedings have taken place; and I hope the proclamation will lead the persons concerned into a regular line of application which may end either in an amendment of the law, if it needs it, or in their conviction that it is right. If the situation of my daughter (who is in the straw) admits it, I propose to set out about a week hence, & shall have the honour of taking your commands for Philadelphia. I have now that of being with great & sincere respect & attachment, Dr. Sir, Your most obdt. & most humble servt.
P. S. The express is detained out about twenty minutes.
TO JAMES MADISONMAD. MSS.
Georgetown, Oct. 1. 1792.
My Dear Sir,—
I called at Gunstonhall, the proprietor just recovering from a dreadful attack of the cholic. He was perfectly communicative, but I could not, in discretion let him talk as much as he was disposed. I proceeded to Mount Vernon & had a full free & confidential conversation with the President, the particulars shall be communicated when I see you. He declares himself quite undecided about retiring, desirous to do so, yet not decided if strong motives against it exist. He thinks if he declares a month before the day of election it will be sufficient; consequently that he may make his declaration even after the meeting of Congress.
Bishop Madison whom I met here is just stepping into the stage, therefore I can only add assurances of my sincere affection.
TO MRS. CHURCH1
Philadelphia, Oct. 1792.
Your favor of July 6. was to have found me here but I had departed before it reached here. It followed me home, & of necessity the enquiries of our frd M.d de Corny was obliged to await mrs M’s arrival at her own house. This was delayed longer than was expected so that by the time I could make the enquiries, I was looking again to my return to Philada. This must apologize for the delay which has taken place. Mrs M tells me that M. de C. was at one time in extreme distress, her revenue being in rents & then pd in assignats worth nothing. Since their abolition however, she receives her rents in cash & is now entirely at her ease. She lives in hired lodgings furnished by herself and everything about her as nice as you know she always had. She visited mrs M familiarly & freely in a family way, but would never dine when she had company nor remain if company came. She speaks seriously sometimes of a purpose to come to America, but she surely mistakes a wish for a purpose. You & I know her [illegible] too well, & her horror of the sea, to believe she could pass or attempt the Atlantic. Mrs M could not give me her address, so as to enable me to write to her, in all events it is a great consoln that her situation is easy. We have here a mr Niemcewitz a polish gent. who was with us at Paris when M Cosway was there, and who was of her society in Lond. last summer. He mentions the loss of her daur the gloom into which that & other circumstances have thrown her, that it has taken the hue of religion, that she is solely devoted to religious exercises & superintendt of a school she has instituted for catholic chdrn. but that she still speaks of her friends here with tenderness & desire. Our lres have been rare, but they have let me see that her gaiety was gone, & her mind entirely placed on a world to come. I have recd. from my young frd Cath a letter which gratifies me much as it proves that our friendly impressions have not grown out of her memory. I am indebted to her too for an acqu with your son whose connections suffice to raise the strongest prepossessions with me in his favor. Be so good as to present my respects to mr C. I hope he will find the state of society different in N. Y. from what it is in this place. Party animosities here have raised a wall of sepern between those who differ in political sentimts.1 They must love misery indeed who would rather at the sight of an honest man feel the torment of hatred & aversion than the benign spasms of benevolence & esteem. Accept assurances of the unalterable attachment of your sincere & affect friend & servt.
TO THE U. S. MINISTER TO GREAT BRITAIN
Philadelphia, Oct 12, 1792.
Your favor of Aug 7 came to hand on the 6th inst, and gave me the first certain information of your safe arrival. Mr. Otto being about to sail for London, furnishes me with an opportunity of sending the newspapers for yourself and Mr. Barclay, & I avail myself of it chiefly for this purpose, as my late return from Virginia and the vacation of Congress furnishes little new & important for your information. With respect to the Indian war, the summer has been chiefly employed in our part on endeavors to persuade them to peace, in an abstinence from all offensive operations in order to give those endeavors a fairer chance, and in preparation for activity, the ensuing season, if they fail. I believe we may say these endeavors have all failed, or probably will do so.—The year has been rather a favorable one for our agriculture. The crops of small grain were generally good. Early frosts have a good deal shortened those of tobacco & Indian corn, yet not so as to endanger distress. From the South my information is less certain, but from that quarter you will be informed thro’ other channels. I have a pleasure in noting this circumstance to you, because the difference between a plentiful and a scanty crop more than counterpoises the expenses of any campaign. Five or six plentiful years, successively, as we have had, have most sensibly ameliorated the condition of our country; and uniform laws of commerce introduced by our new government have enabled us to draw the whole benefits of our agriculture.—I inclose you the copy of a letter from Messrs. Blow & Milhaddo, merchants of Virginia, complaining of the taking away of their saylors on the coast of Africa, by the commander of a British armed vessel. So many instances of this kind have happened that it is quite necessary that their government should explain themselves on the subject, and be led to disavow & punish such conduct. I leave to your discretion to endeavor to obtain this satisfaction by such friendly discussions as may be most likely to produce the desired effect, and secure to our commerce that protection against British violence, which it has never experienced from any other nation. No law forbids the seaman of any country to engage in time of peace on board a foreign vessel; no law authorizes such seaman to break his contract, nor the armed vessels of his nation to interpose force for his rescue. I shall be happy to hear soon that Mr. B. is gone on the service on which he was ordered.
TO THE U. S. COMMISSIONERS TO SPAIN
Philadelphia, October 14, 1792.
Since my letters of March 18th & April 24 (which have been retarded so unfortunately) another subject of conference and Convention with Spain, has occurred. You know that the frontiers of her Provinces, as well as of our States, are inhabited by Indians holding justly the right of occupation, and leaving to Spain and to us only the claim of excluding other nations from among them, and of becoming ourselves the purchasers of such portions of land from time to time as they chuse to sell. We have thought that the dictates of interest, as well as humanity enjoined mutual endeavors with those Indians to live in peace with both nations, and we have scrupulously observed that conduct. Our Agent with the Indians bordering on the territories of Spain, has a standing instruction to use his best endeavors to prevent them from committing acts of hostility against the spanish settlements. But whatever may have been the conduct or orders of the government of Spain, that of their officers in our neighborhood has been indisputably unfriendly and hostile to us. The papers enclosed will demonstrate this to you. That the Baron de Carondelet their chief Governor at New Orleans has excited the Indians to war on us; that he has furnished them with abundance of arms and ammunition, and promised them whatever more shall be necessary I have from the mouth of him who had it from his own mouth. In short, that he is the sole source of a great and serious war now burst out upon us, and from Indians who we know were in peaceable dispositions towards us, till prevailed on by him to commence the war, there remains scarcely room to doubt. It is become necessary that we understand the real policy of Spain on this point. You will, therefore, be pleased to extract from the enclosed papers such facts as you think proper to be communicated to that Court, and enter into friendly but serious expostulations on the conduct of their officers; for we have equal evidence against the Commandants of other posts in West Florida, though they being subordinate to Carondelet, we name him as the source. If they disavow his conduct, we must naturally look to their treatment of him as the sole evidence of their sincerity. But we must look further. It is a general rule that no nation has a right to keep an agent within the limits of another, without the consent of that other, and we are satisfied it would be best for both Spain and us to abstain from having agents or other persons in our employ or pay among the savages inhabiting our respective territories, whether as subjects or independent. You are, therefore, desired to propose and press a stipulation to that effect. Should they absolutely decline it, it may be proper to let them perceive, that as the right of keeping Agents exists on both sides, or on neither, it will rest with us to reciprocate their own measures. We confidently hope that these proceedings are unauthorized by the government of Spain, and in this hope, we continue in the dispositions formerly expressed to you, of living on terms of the best friendship and harmony with that country, of making their interests, in our neighborhood, our own, and of giving them every proof of this except the abandonment of those essential rights which you are instructed to insist on.
PARAGRAPHS FOR PRESIDENT’S MESSAGE1J. MSS.
[October 15, 1792.]
The interests of a nation, when well understood, will be found to coincide with their moral duties. Among these it is an important one to cultivate habits of peace & friendship with our neighbors. To do this we should make provision for rendering the justice we must sometimes require from them. I recommend therefore to your consideration. Whether the laws of the Union should not be extended to restrain our citizens from committing acts of violence within the territories of other nations, which would be punished were they committed within our own.—And in general the maintenance of a friendly intercourse with foreign nations will be presented to your attention by the expiration of the law for that purpose, which takes place, if not renewed, at the close of the present session.
In execution of the authority given by the legislature, measures have been taken for engaging some artists from abroad to aid in the establishment of our mint; others have been employed at home; provision has been made of the requisite buildings, and these are now putting into proper condition for the purposes of the establishment. There has been also a small beginning in the coinage of the half dimes & cents, the want of small coins in circulation calling our first attentions to them.
TO THE U. S. MINISTER TO FRANCE
Philadelphia Oct 15, 1792.
I have duly received your favor of July 10, No. 4, but no other N°. preceding or subsequent. I fear therefore that some miscarriage has taken place. The present goes to Bordeaux under cover to Mr. Fenwick who I hope will be able to give it a safe conveyance to you. I observe that you say in your letter that “the marine department is to treat with you for supplies to S. Domingo.” I presume you mean “supplies of money” and, not that our government is to furnish supplies of provisions &c. specifically, or employ others to do it: this being a business into which they could not enter. The payment of money here to be employed by their own agents in purchasing the produce of our soil is a desirable thing.—We are informed by the public papers that the late constitution of France, formally notified to us, is suspended, and a new Convention called. During the time of this suspension, & while no legitimate government exists, we apprehend we cannot continue the payments of our debt to France, because there is no person authorized to receive it, and to give us an unobjectionable acquittal. You are therefore desired to consider the paiment as suspended until further orders. Should circumstances oblige you to mention this (which it is better to avoid if you can) do it with such solid reasons as will occur to yourself & accompany it with the most friendly declarations that the suspension does not proceed from any wish in us to delay the payment, the contrary being our wish, nor from any desire to embarras or oppose the settlement of their government in that way in which their nation shall desire it: but from our anxiety to pay this debt justly & honorably, and to the persons really authorized by the nation (to whom we owe it) to receive it for their use. Nor shall this suspension be continued one moment after we can see our way clear out of the difficulty into which their situation has thrown us. That they may speedily obtain liberty, peace & tranquillity is our sincere prayer. * * *
TO WILLIAM SHORT1
October 16, 1792.
* * * You complain of silence and reserve on my part with respect to the diplomatic nominations in which you are interested. Had you been here there should have been no silence or reserve, and I long for the moment when I can unbosom to you all that passed on that occasion. But to have trusted such communications to writing, and across the Atlantic, would have been an indiscretion which nothing could have excused. I dropped you short and pregnant sentences from time to time as, duly pondered, would have suggested to you such material circumstances as I knew. You say that silence and reserve were not observed as to Mr. Morris, who knew he was to be appointed. No man upon earth knew he was to be appointed 24 hours before he was appointed but the President himself, and he who wrote Mr. Morris otherwise wrote him a lie. It may be asked how I can affirm that nobody else knew it. I can affirm it from my knowledge of the P’s character, and from what passed between us.
The people of Virginia are beginning to call for a new constitution for their State. This symptom of their wishes will probably bring over Mr. Henry to the proposition. He has been the great obstacle to it hitherto; but you know he is always alive to catch the first sensation of the popular breeze, that he may take the lead of that which in truth leads him. * * *
TO THE FRENCH MINISTER
Philadelphia, Oct. 16, 1792.
I am to acknolege the receipt of your letter of the 9th inst. proposing a stipulation for the abolition of the practice of privateering in times of war. The benevolence of this proposition is worthy of the nation from which it comes, & our sentiments on it have been declared in the treaty to which you are pleased to refer, as well as in some others which have been proposed. There are in those treaties some other principles which would probably meet the approbation of your government, as flowing from the same desire to lessen the occasions & the calamities of war. On all of these as well as on those amendments to our treaty of commerce which might better it’s conditions with both nations, and which the National assembly of France has likewise brought into view on a former occasion, we are ready to enter into negotiation with you, only proposing to take the whole into consideration at once. And while contemplating provisions which look to the event of war, we are happy in feeling a conviction that it is yet at a great distance from us, & in believing that the sentiments of sincere friendship which we bear to the nation of France are reciprocated on their part. Of these our dispositions be so good as to assure them on this & all other occasions, & to accept yourself those sentiments of esteem & respect with which I have the honor to be Sir, your most obedt. & most humble servt.
TO THE PRESIDENT OF THE UNITED STATESMON. MSS.
Philadelphia, Oct. 17. 1792.
In a letter from Monticello I took the liberty of saying that as soon as I should return here where my letter books were, I would take the liberty of troubling you with the perusal of such parts of my correspondence from France as would shew my genuine sentiments of the new constitution. When I arrived in Philadelphia, the 5th inst., I found that many of my letters had been already put into the papers, by the gentleman possessed of the originals, as I presume, for not a word of it had ever been communicated to me, and the copies I had retained were under a lock of which I had the key. These publications are genuine, and render it unnecessary to give you any further trouble than to see extracts from two or three other letters which have not been published, and the genuine letter for the payment of the French debt. Pardon my adding this to so many troubles as you have.1 I think it necessary you should know my real opinions that you may know how to make use of me, and it is essential to my tranquillity not to be mis-known to you. I hope it is the last time I shall feel the necessity of asking your attention to a disagreeable subject.
TO THE FRENCH MINISTER
Oct. 23, 1792.
Th: Jefferson presents his respectful compliments to Mr. de Ternant—He has examined again with care the commission of M. de la Forest, and finds it impossible to consider it as anything more than a Commission of Consul General for N. York, Jersey, Pensylva, & Delaware. If any thing more has been intended, the error has been in those who drew the commission, and this error we are not authorised to correct. Being corrected by a new commission, we shall be very happy to render the Exequatur conformable to that, as the one now inclosed is to the present commission. M. de Ternant will see on the next page an analysis of the present commission & some observations on it.1
TO THE COMMISSIONERS OF SPAIN
Philadelphia November 1st, 1792.
I have now to acknowledge the receipt of your favor of October the 29th, which I have duly laid before the President of the United States, and in answer thereto, I cannot but observe that some parts of it’s contents were truly unexpected. On what foundation it can be supposed that we have menaced the Creek nation with destruction during the present autumn, or at any other time, is entirely inconceivable. Our endeavors, on the contrary, to keep them at peace, have been earnest, persevering, and notorious, and no expense has been spared which might attain that object. With the same view to peace, we have suspended, now more than a twelvemonth, the marking a boundary between them and us, which had been fairly, freely, and solemnly established with the Chiefs whom they had deputed to treat with us on that subject; we have suspended it, I say, in the constant hope, that taking time to consider it in the Councils of their nation, and recognizing the Justice and reciprocity of it’s conditions, they would at length, freely concur in carrying it into execution. We agree with you, that the interests which either of us have in the proceedings of the other, with this nation of Indians, is a proper subject of discussion at the negotiation to be opened at Madrid, and shall accordingly give the same in charge to our Commissioners there. In the meantime we shall continue sincerely to cultivate the peace and prosperity of all the parties, being constant in the opinion that this conduct, reciprocally observed, will most increase the happiness of all.
TO THE PRESIDENT OF THE UNITED STATESJ. MSS.
Philadelphia November 2d, 1792.
The letter of October 29th, from Messieurs Viar & Jaudenes, not expressing the principle on which their government interests itself between the United States and the Creeks, I thought it of importance to have it ascertained. I therefore called on those gentlemen, and entered into explanations with them. They assured me, in our conversation, that, supposing all question of boundary to be out of the case, they did not imagine their government would think themselves authorized to take under their protection any nation of Indians, living within limits confessed to be ours; and they presumed that any interference of theirs, with respect to the Creeks, could only arise out of the question of disputed territory, now existing between us; that, on this account, some part of our treaty with the Creeks had given dissatisfaction. They said, however, that they were speaking from their own sentiments only, having no instructions which would authorize them to declare those of their Court; but that they expected an answer to their letters covering mine of July 9th, (erroneously cited by them as of the 11th.) from which they would probably know the Sentiments of their Court. They accorded entirely in the opinion that it would be better that the two nations should mutually endeavor to preserve each the peace of the other; as well as their own, with the neighboring Tribes of Indians.
I shall avail myself of the opportunity, by a vessel which is to sail in a few days, of sending proper information and instructions to our Commissioners on the subject of the late, as well as of future interferences of the Spanish officers, to our prejudice with the Indians, and for the establishment of common rules of conduct for the two nations.
TO THOMAS MANN RANDOLPHJ. MSS.
Philadelphia, Nov. 2d, 1792.
I received yesterday your favor of Oct. 22, and am much relieved by the favorable account of dear Anne’s health. The journey you meditate will probably be of some service to her. It is more doubtful as to the young hero, as at his age they stand travelling worse. However the short stages you propose may prevent injury. Colo. & Mrs. Monroe arrived yesterday as also Mr. Madison. The members of Congress begin to drop in, and the winter’s campaign opens on Monday. The less they do, & the more they leave to their successors, the better in my opinion.
The election of this state has had an issue very favorable to the republican wishes. The monocrats of this place (who are few tho’ wealthy & noisy) are au desespoir. The nearer I approach the term of my relief from their contests the more impatiently I bear them. They have kept up the ball with respect to myself till they begin to be tired of it themselves. Their chief object was to influence the election of this state, by persuading them there was a league against the government, and as it was necessary to designate a head to the league, they did me that honour. This indulged at the same time the personal enmity of a particular gentleman, who has written & written under all sorts of shapes & signatures without much advancing the cause of his part. Tho’ I have no reason to be dissatisfied with the impression made, yet I have too many sources of happiness at home, and of the tranquil kind which are alone happiness to me, not to wish for my release. Maria is well. Present my affections to my dear Martha, and believe me to be most sincerely your’s &c.
TO THE U. S. COMMISSIONERS TO SPAIN1
Philadelphia Nov 3, 1792.
I wrote you on the 14th of last month, since which some other incidents and documents have occurred bearing relation to the subject of that letter. I therefore now inclose you a duplicate of that letter.
“Copy of a letter from the Govr. of Georgia, with the deposition it covered of a Mr. Hull & an original passport signed by Olivier wherein he stiles himself Commissary for his Catholic majesty with the Creeks.
“Copy of a letter from Messrs. Viar & Jaudenes to myself, dated Oct. 29. with that of the extract of a letter of Sep. 24. from the Baron Carondelet to them.
“Copy of my answer of Nov. 1. to them, and
“Copy of a letter from myself to the President, stating a conversation with those gentlemen.”
From these papers you will find that we have been constantly endeavoring by every possible means to keep peace with the Creeks, that in order to do this we have even suspended & still suspend the running a fair boundary between them & us, as agreed to us by themselves, & having for object the precise definition of their & our lands, so as to prevent encroachment on either side, & that we have constantly endeavored to keep them at peace with the Spanish settlements here; that Spain on the contrary, or at least the officers of her governments, since the arrival of the Baron de Carondelet, has undertaken to keep an Agent among the Creeks, has excited them, & the other Southern Indians to commence a war against us, has furnished them with arms & ammunition for the express purpose of carrying on that war, and prevented the Creeks from running the boundary which would have removed the source of differences from between us. Messrs. Viar & Jaudenes explain the ground of interference on the fact of the Spanish claim to that territory, and on an article in our treaty with the Creeks putting themselves under our protection. But besides that you already know the nullity of their pretended claim to the territory, they had themselves set the example of endeavoring to strengthen that claim by the treaty mentioned in the letter of the Baron de Carondelet, and by the employment of an Agent among them.—The establishment of our boundary, committed to you, will, of course, remove the grounds of all future pretence to interfere with the Indians within our territory; and it was to such only that the treaty of New York stipulated protection; for we take for granted that Spain will be ready to agree to the principle that neither party has a right to stipulate protection or interference with the Indian nations inhabiting the territory of the other. But it is extremely material also with sincerity & good faith to patronize the peace of each other with the neighboring savages. We are quite disposed to believe that the late wicked excitements to war have proceeded from the Baron de Carondelet himself, without authority from his court. But if so, have we not reason to expect the removal of such an officer from our neighborhood, as an evidence of the disavowal of his proceedings. He has produced against us a serious war. He says in his letter indeed that he has suspended it. But this he has not done, nor possibly can he do it. The Indians are more easily engaged in a war than withdrawn from it. They have made the attack in force on our frontiers, whether with or without his consent, and will oblige us to a severe punishment of their aggression. We trust that you will be able to settle principles of friendly concert between us & Spain with respect to the neighboring Indians: & if not that you will endeavor to apprize us of what we may expect that we may no longer be tied up by principles which, in that case would be inconsistent with duty & self-preservation.
TO THE U. S. MINISTER TO FRANCE
Philadelphia, Nov. 7, 1792.
My last to you was of the 15th of Oct since which I have received your Nos. 1, 2, 3, 5, 6, 7. Tho’ mine went by a conveyance directly to Bordeaux, & may therefore probably get safe to you, yet I think it proper, lest it should miscarry, to repeat to you the following paragraph from it. * * *
I am perfectly sensible that your situation must, ere this reaches you, have been delicate & difficult: and tho’ the occasion is probably over, and your part taken of necessity, so that instructions now would be too late, yet I think it just to express our sentiments on the subject as a sanction of what you have probably done. Whenever the scene became personally dangerous to you, it was proper you should leave it, as well from personal as public motives. But what degree of danger should be awaited, to what distance or place you should retire, are circumstances which must rest with your own discretion, it being impossible to prescribe them from hence.—With what kind of government you may do business, is another question. It accords with our principles to acknolege any government to be rightful which is formed by the will of the nation substantially declared. The late government was of this kind, & was accordingly acknoleged by all the branches of ours. So any alteration of it which shall be made by the will of the nation substantially declared, will doubtless be acknoleged in like manner. With such a government every kind of business may be done. But there are some matters which I conceive might be transacted with a government de facto: such for instance as the reforming the unfriendly restrictions on our commerce & navigation. Such cases you will readily distinguish as they occur. With respect to this particular reformation of their regulations we cannot be too pressing for it’s attainment, as every days continuance gives it additional firmness & endangers it’s taking root in their habits & constitution: and indeed I think they should be told, as soon as they are in a condition to act, that if they do not revoke the late innovations, we must lay additional & equivalent burthens on French ships, by name.—Your conduct in the case of M. de Bonne-Carrere is approved intirely. We think it of great consequence to the friendship of the two nations to have a minister here in whose dispositions we have confidence.—Congress assembled the day before yesterday. I inclose you a paper containing the President’s speech whereby you will see the chief objects of the present session. Your difficulties as to the settlements of our accounts with France, & as to the payment of the foreign officers will have been removed by the letter of the Secretary of the Treasury, of which, for fear it should have miscarried, I now inclose you a duplicate. Should a conveyance for the present letter offer to any port of France directly, your newspapers will accompany it. Otherwise I shall send it through Mr. Pinckney, & retain the newspapers as usual for a direct conveyance.
TO THOMAS PINCKNEYJ. MSS.
Philadelphia Nov. 8, 1792.
Having at the moment I was induced to undertake my present office, determined to retire from it as soon as decency would permit, & very early after, fixing on the termination of our first federal period of 4. years as the proper epoch for retirement, I now contemplate the approach of that moment with the fondness of a sailor who has land in view. The object of this private letter is to desire that you will be so good as to direct your future public letters to the Secretary of State by that title, & not by name till you know who he will be, as otherwise all letters arriving after the 3rd. of March should incur the expense, delay and risk of travelling 600. miles by post.—The prospect of resuming the direction of my farm induced me to trouble you with the commission for the threshing machine, which I shall be happy to receive, and shall take the most effectual methods of rendering public.
I may perhaps, with your permission, take the liberty of troubling you sometimes with a line from my retirement, and shall be ever happy to hear from you, & give every proof of the sincere esteem & respect with which I have the honor to be Dear Sir your most obedt Servt.
P. S.—We received information yesterday of the conclusion of peace with the Wabash & Illinois Indians. This forms a separation between the Northern & Southern war-tribes.
TO THE PRESIDENT OF THE UNITED STATESJ. MSS.
Nov. 16, 1792.
Th: Jefferson has the honor to inform the President that the papers from Johanna Lucia Henriette Hendrickson, a Danish subject, state that she is entitled to inherit from her brother Daniel Wriesburg deceased two tracts of land in New Jersey & New York and she petitions Congress, & the states of New Jersey & New York to have justice done her, offering, if they will pay her the reasonable rents during her life and an indemnification for the detention hitherto, that she will cede to them the remainder after her death for the establishment of a charitable institution for the benefit of poor military persons, the plan of which she leaves to the President of the U. S. to settle.
Th: Jefferson is of opinion that the incompetence of the General government to legislate on the subject of inheritances is a reason the more against the President’s becoming the channel of a petition to them: but that it might not be amiss that Th: J. should inclose to the Governors of New Jersey & N. York the petitions addressed to their states, as some advantages are offered to them of which they will take notice, or not, at their pleasure. If the President approves of this, & will return the petitions they shall be inclosed accordingly.
TO THOMAS MANN RANDOLPHJ. MSS.
Philadelphia Nov. 16, 1792.
Congress have not yet entered into any important business. An attempt has been made to give further extent to the influence of the Executive over the legislature, by permitting the heads of departments to attend the house and explain their measures viva voce. But it was negatived by a majority of 35 to 11 which gives us some hope of an increase of the republican vote. However no trying question enables us yet to judge, nor indeed is there reason to expect from this Congress many instances of conversion tho’ some will probably have been effected by the expression of the public sentiment in the late election. For as far as we have heard the event has been generally in favor of republican & against the aristocratical candidates. In this state the election has been triumphantly carried by the republicans; their antagonists having got but 2 out of 11 members, and the vote of this state can generally turn the balance. Freneau’s paper is getting into Massachusetts under the patronage of Hancock & Sam Adams, & Mr. Ames, the colossus of the monocrats & paper men, will either be left out or hard run. The people of that state are republican; but hitherto they have heard nothing but The hymns & lauds chaunted by Fenno.—My love to my dear Martha and am Dear Sir Yours affectionately.
TO THE PRESIDENT OF THE UNITED STATESJ. MSS.
November 18, 1792.
Th: Jefferson has the honor to inform the President that the papers from Monsr. Cointeraux of Paris contain some general ideas on his method of building houses of mud, he adds that he has a method of making incombustible roofs and ceilings, that his process for building is auxiliary to agriculture, that France owes him 66,000 livres, for so much expended in experiments & models of his art, but that the city of Paris is unable to pay him 600. livres decreed to him as a premium, that he is 51. years old has a family of seven persons, and asks of Congress the expenses of their passage & a shop to work in.
Th: Jefferson saw M. Cointeraux at Paris, went often to examine some specimens of mud walls which he erected there, and which appeared to be of the same kind generally built in the neighborhood of Lyons, which have stood perhaps for a century. Instead of moulding bricks, the whole wall is moulded at once, & suffered to dry in the sun, when it becomes like unburnt brick. This is the most serious view of his papers. He proceeds further to propose to build all our villages incombustible that the enemy may not be able to burn them, to fortify them all with his kind of walls impenetrable to their cannon, to erect a like wall across our whole frontier to keep off the Indians, observing it will cost us nothing but the buildings, &c. &c. &c.
The paper is not in the form of a petition, tho’ evidently intended for Congress, & making a proposition to them. It does not however merit a departure from the President’s rule of not becoming the channel of petitions to that body, nor does it seem entitled to any particular answer.
ACT TO AMEND THE ACT INTITLED AN ACT MAKING PROVISION FOR REDEMPTION OF THE PUBLIC DEBTJ. MSS.
It being highly expedient that no time should be lost in redeeming those portions of the principal of the Public debt which may be annually redeemed, and more desirable, until other funds shall be provided, to apply to this object the surplus of duties described in the act making provision for the reduction of the Public debt, than to the purchase of any other part of the said Debt.
Be it enacted by the Senate & House of Repr of the U. S. of A. in Congs. assembled, that the sd surplus now in the treasury, or hereafter coming into the treasury shall be applied under the direction of the persons therein named to the redemption of those proportions of the public debt bearing a present interest of six per centum per annum which may be lawfully redeemed, for the year preceeding the sd payments; and the residue, if any, to the redemption of the proportion of the same debt which may be redeemed in the then succeeding year.
TO THE FRENCH MINISTER
Philadelphia Novr 20th, 1792.
Your letter on the subject of further supplies to the colony of St. Domingo, has been duly received and considered. When the distress of that Colony first broke forth, we thought we could not better evidence our friendship to that, and to the mother country also, than to step in to its relief, on your application, without waiting a formal authorization from the national Assembly. As the case was unforeseen, so it was unprovided for on their part, and we did what we doubted not they would have desired us to do, had there been time to make the application, and what we presumed they would sanction as soon as known to them. We have now been going on more than a twelve-month, in making advances for the relief of the Colony, without having as yet received any such sanction; for the Decree of 4. millions of Livres in aid of the Colony, besides the circuitous and informal manner by which we became acquainted with it, describes and applies to operations very different from those which have actually taken place. The wants of the Colony appear likely to continue, and their reliance on our supplies to become habitual. We feel every disposition to continue our efforts for administering to those wants; but that cautious attention to forms, which would have been unfriendly in the first moment, becomes a duty to ourselves; when the business assumes the appearance of long continuance, and respectful also to the National assembly itself, who have a right to prescribe the line of an interference so materially interesting to the Mother country and the Colony.
By the estimate you were pleased to deliver me, we perceive that there will be wanting to carry the Colony through the month of December, between 30 & 40,000 dollars, in addition to the sums before engaged to you. I am authorized to inform you that the sum of 40,000 Dollars shall be paid to your orders at the Treasury of the United States, and to assure you that we feel no abatement in our dispositions to contribute these aids from time to time, as they shall be wanting for the necessary subsistence of the Colony: but the want of express approbation from the national legislature must ere long produce a presumption that they contemplate perhaps other modes of relieving the Colony, and dictate to us the propriety of doing only what they shall have regularly and previously sanctioned.
Their Decree before mentioned, contemplates purchases made in the United States only. In this they might probably have in view, as well to keep the business of providing supplies under a single direction as that these supplies should be bought where they can be had cheapest, and where the same sum will consequently effect the greatest measure of relief to the Colony. It is our wish, as undoubtedly it must be yours, that the monies we furnish, be applied strictly in the line they prescribe. We understand, however, that there are in the hands of our Citizens, some bills drawn by the administration of the Colony, for articles of subsistence delivered there. It seems just that such of them should be paid as were received before bona fide notice that that mode of supply was not bottomed on the funds furnished to you by the United States, and we recommend them to you accordingly.
REPORT ON NEUFVILLEJ. MSS.
November 26, 1792.
The Secretary of State, to whom was referred by the House of Representatives, the petition of John De Neufville, with instructions to examine the same, and report thereupon his opinion to the House, at the present Session, has had the same under examination, together with the Letter accompanying it from William Lee, Esquire, to the Petitioner, bearing date Dec. 14th., 1791, and hath also examined the records of the Department of State, which might throw light on the allegations of the said petition: And he finds—
That William Lee, Esquire, was appointed by Congress in May 1777, a Commissioner for the United States to the Courts of Vienna and Berlin, with power to communicate and treat with those Courts on the subjects of friendship, peace, the safety of navigation and mutual commerce, and to do all such things as might conduce to those ends.
That the Petitioner, then a citizen of the United Netherlands, met with Mr. Lee in Germany, where, conversing on the subject of their two Countries, a Treaty between them was spoken of as desirable, and perhaps practicable: that the Petitioner, having afterwards consulted with persons of influence in his own Country, was engaged by them, on behalf of their country, to concert with Mr. Lee, or any other person, in the employment of the United States, a plan of a Treaty: that this was done at a subsequent meeting, and the Plan signed by Mr. Lee, on our part, and by the Petitioner, on the other Part: but that this plan was not prosecuted to effect, Congress putting the business into other hands. Which several facts appear by the Records in the Department of State, some of the most material of which have been extracted, and are hereto annexed.
The Petitioner further sets forth—
That the persecution excited against him by the enemies of the United States, on account of his Agency on the Part of Holland, in preparing the plan of a Treaty, obliged him to convey all his estate to his Son, to leave his Country, and to part with his property in the British funds, by which last operation, he lost between four and five thousand pounds sterling:
That he advanced for the State of South Carolina, fifteen thousand pounds sterling in Military and other Stores; for which advance, being pressed by his creditors, he was obliged to sell his House in Amsterdam for £10,000 Sterling, which was worth £14,000, and to pass over to America.
That he lent to Mr. Laurens, during his captivity, £1,000 sterling, which sum, however, Mr. Laurens, repaid him immediately on his liberation.
That he shipped goods to St. Eustatia, with a view to supply the Americans, of which £15.000 sterling’s worth was captured by British ships:
And that, during a space of three Years, his House was a hospital asylum for Americans in general, by which he incurred an Expense of £10,000 sterling.
The establishment of these latter facts has not been required by the Secretary of State, because, if established, they would not, in his opinion, have founded a right to indemnification from the United States.
The part the Petitioner bore in projecting a Treaty between Holland and the United States, was, as a citizen of Holland, on the behalf of that country, while the Counterpart was carried on for us by Mr. Lee, then employed on another mission. It follows that each party should defray the expense of its own Agent, and that the Losses in the British funds, stated as a consequence of this particular transaction, were to be indemnified by his own nation, if by either party.
The advance of £15,000 sterling in Stores to the State of South Carolina, was a matter of account with that State, as must also be the losses consequent on that, in the Sale of his House, if they be a subject of indemnification at all.
The loan of a thousand pounds to Mr. Laurens, one of the Ministers of the United States, is acknowledged to have been speedily repaid.
The shipments of goods to St. Eustatia, with a view of disposing of them to the Americans, were in the line of his commerce, and the Losses sustained on them by capture, belong fairly to the account of Profit and Loss, which every merchant hazards, and endeavors to counterpoise, without supposing himself insured either by his own, or any foreign Government.
The hospitalities of the Petitioner in Amsterdam, stated at £10,000 sterling, of which such Americans participated as happened to be there, found a claim to their particular gratitude and attention, and to the esteem attached to the exercise of private virtues: but, whilst we sincerely regret calamities, which no degree of personal worth can avert, we are forced to declare they are no legitimate object of taxation on our Citizens in general.
These several Articles, constituting the foundation of the petition, the Secretary of State reports it is his Opinion, that no part of it ought to be granted.
AMENDMENTS TO FOREIGN INTERCOURSE BILL1
[Dec. 1, 1792.]
To the bill for continuing the act of July 1. 1790. c. 22, “providing the means of intercourse between the U. S. and foreign nations” it is proposed to add the following clause:
And be it further enacted that where monies shall have issued, or shall issue, from the treasury, for the purpose of intercourse or treaty with foreign nations, under the authority of the2 said act, not the present, or3 any preceding act, the President shall be authorized to refer the settlement and delivery of vouchers, for all such parts thereof as in his judgment may be made public to the Auditor of the U. S. and for all other parts, to such person as he shall appoint, prescribing for their government, in every case, such rules as the nature of the case shall in his opinion require.1
OPINION ON FUGITIVE SLAVESJ. MSS.
December 3, 1792.
Opinion relative to a case of recapture, by citizens of the United States, of slaves escaped into Florida, and of an American enticing French slaves from St. Domingo.
Complaint has been made by the Representatives of Spain that certain individuals of Georgia entered the State of Florida, and without any application to the Government, seized and carried into Georgia, certain persons, whom they claim to be their slaves. This aggression was thought the more of, as there exists a convention between that government and the United States against receiving fugitive slaves.
The minister of France has complained that the master of an American vessel, while lying within a harbor of St. Domingo, having enticed some negroes on board his vessel, under pretext of employment, brought them off, and sold them in Georgia as slaves.
1. Has the general government cognizance of these offences? 2. If it has, is any law already provided for trying and punishing them?
1. The Constitution says “Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts &c., provide for the common defence and general welfare of the United States.” I do not consider this clause as reaching the point. I suppose its meaning to be, that Congress may collect taxes for the purpose of providing for the general welfare, in those cases wherein the Constitution empowers them to act for the general welfare. To suppose that it was meant to give them a distinct substantive power, to do any act which might tend to the general welfare, is to render all the enumerations useless, and to make their powers unlimited. We must seek the power therefore in some other clause of the Constitution. It says further, that Congress shall have power to “define and punish piracies and felonies committed on the high seas, and offences against the law of nations.” These offences were not committed on the high seas, and consequently not within that branch of the clause. Are they against the law of nations, taken as it may be in its whole extent, as founded, 1st, by nature; 2d, usage; 3d, convention. So much may be said in the affirmative, that the legislators ought to send the case before the judiciary for discussion; and the rather, when it is considered that unless the offenders can be punished under this clause, there is no other which goes directly to their case, and consequently our peace with foreign nations will be constantly at the discretion of individuals.
2. Have the legislators sent this question before the Courts by any law already provided? The act of 1789, chapter 20, section 9, says the district courts shall have cognizance concurrent with the courts of the several States, or the circuit courts, of all causes, where an alien sues for a tort only, in violation of the law of nations; but what if there be no alien whose interest is such as to support an action for the tort?—which is precisely the case of the aggression on Florida. If the act in describing the jurisdiction of the Courts, had given them cognizance of proceedings by way of indictment or information against offenders under the law of nations, for the public wrong, and on the public behalf, as well as to an individual for the special tort, it would have been the thing desired.
The same act, section 13, says, the “Supreme Court shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently, with the law of nations.”—Still this is not the case, no ambassador, &c., being concerned here. I find nothing else in the law applicable to this question, and therefore presume the case is still to be provided for, and that this may be done by enlarging the jurisdiction of the courts, so that they may sustain indictments and informations on the public behalf, for offences against the law of nations.1
TO THOMAS PINCKNEYJ. MSS.
Philadelphia, December 3. 1792.
* * * I do not write you a public letter by the packet because there is really no subject for it. The elections for Congress have produced a decided majority in favor of the republican interest. They complain, you know, that the influence and patronage of the Executive is to become so great as to govern the Legislature. They endeavored a few days ago to take away one means of influence by condemning references to the heads of department. They failed by a majority of five votes. They were more successful in their endeavor to prevent the introduction of a new means of influence, that of admitting the heads of department to deliberate occasionally in the House in explanation of their measures. The proposition for their admission was rejected by a pretty general vote. I think we may consider the tide of this government as now at the fullest, and that it will, from the commencement of the next session of Congress, retire and subside into the true principles of the Constitution. An alarm has been endeavored to be sounded as if the republican interest was indisposed to the payment of the public debt. Besides the general object of the calumny, it was meant to answer the special one of electioneering. Its falsehood was so notorious that it produced little effect. They endeavored with as little success to conjure up the ghost of antifederalism, and to have it believed that this and republicanism were the same, and that both were Jacobinism. But those who felt themselves republicans and federalists too, were little moved by this artifice; so that the result of the election has been promising. The occasion of electing a Vice-President has been seized as a proper one for expressing the public sense of the doctrines of the monocrats. There will be a strong vote against Mr. Adams, but the strength of his personal worth and his services will, I think, prevail over the demerit of his political creed.
DRAFT OF MESSAGE ON SOUTHERN INDIANS1
[Dec. 7, 1792]
Gentlemen of the Senate & H. of Representatives,—
I now lay before you, for your further information, some additional advices lately received, on the subject of the hostilities committed by the Chuckamogga Towns, or under their name and guidance.
The importance of preventing this hostile spirit from spreading to other tribes, or other parts of the same tribe of Indians, a considerable military force actually embodied in their neighborhood, and the advanced state of the season, are circumstances which render it interesting that this subject should obtain your earliest attention.
The Question of War, being placed by the Constitution with the legislature alone, respect to that made it my duty to restrain the operations of our militia to those merely defensive: & considerations involving the public satisfaction, & peculiarly my own, require that the decision of that Question, whichever way it be, should be pronounced definitively by the legislature themselves.
EXTEMPORE THOUGHTS AND DOUBTS ON VERY SUPERFICIALLY RUNNING OVER THE BANKRUPT BILL1
The British statute excepts expressly farmers, graziers, drovers, as such tho’ they buy to sell again. This bill has no such exception.
The British adjudications exempt the buyers & sellers of bank stock, government papers, &c. What feelings guided the draughtsman in adhering to his original in this case & departing from it in the other?
The British courts adjudge that any artists may be bankrupts if the materials of their art are bought, such as shoemakers, blacksmiths, carpenters, &c. Will the body of our artists desire to be brought within the vortex of this law? It will follow as a consequence that the master who has an artist of this kind in his family whether hired, indentured, or a slave, to serve the purposes of his farm or family, but who may at leisure time do something for his neighbors also, may be a bankrupt.
The British law makes a departure from the realm. i.e. out of the mediation of British law, an act of bkrptcy. This bill makes a departure from the State wherein he resides (tho’ into a neighboring one where the laws of the U. S. run equally,) an act of bankruptcy.
The Commnrs may enter houses, break open doors, chests, &c. Are we really ripe for this? is that spirit of independence & sovereignty which a man feels in his own house and which Englishmen felt when they denominated their houses their castles, to be absolutely subdued & is it expedient that it should be subdued?
The lands of the bankrupt are to be taken sold & is not this a predominant question between the general & State legislatures?
Is Commerce so much the basis of the existence of the U. S. as to call for a bankrupt law? on the contrary are we not almost agricultural? Should not all laws be made with a view essentially to the poor husbandman? When laws are wanting for particular descriptions of other callings, should not the husbandman be carefully excused from their operation, and preserved under that of the general system only, which general system is fitted to the condition of the husbandman?
TO DR. GEORGE GILMERJ. MSS.
Philadelphia Dec. 15, 1792.
I received only two days ago your favor of Oct. 9, by Mr. Everett. He is now under the small-pox. I am rejoiced with the account he gives me of the invigoration of your system, and am anxious for your persevering in any course of regimen which may long preserve you to us.—We have just received the glorious news of the Prussian army being obliged to retreat, and hope it will be followed by some proper catastrophe on them. This news has given wry faces to our monocrats here, but sincere joy to the great body of citizens. It arrived only in the afternoon of yesterday, & the bells were rung, & some illuminations took place in the evening.—A proposition has been made to Congress to begin sinking the public debt by a tax on pleasure horses; that is to say, on all horses not employed for the draught or farm. It is said there is not a horse of that description eastward of New York. And as to call this a direct tax would oblige them to proportion it among the states according to the census, they chuse to class it among the indirect taxes.—We have a glimmering hope of peace from the Northern Indians, but from those of the South there is danger of war. Wheat is at a dollar and a fifth here. Do not sell yours till the market begins to fall. You may lose a penny or two in the bushel then, but might lose a shilling or two now. Present me affectionately to Mrs. Gilmer. Your’s sincerely.
TO JOHN FRANCIS MERCERJ. MSS.
Philadelphia Dec. 19, 1792.
I received yesterday your favor of the 13th. I had been waiting two or three days in expectation of vessels said to be in the river & by which we hoped more particular accounts of the late affairs in France. It has turned out that there were no such vessels arriving as had been pretended. However I think we may safely rely that the D of Brunswick has retreated, and it is certainly possible enough that between famine, disease, and a country abounding with defiles, he may suffer some considerable catastrophe. The Monocrats here still affect to disbelieve all this, while the republicans are rejoicing and taking to themselves the name of Jacobins which two months ago was affixed on them by way of stigma. The votes for Vice President, as far as hitherto known stand thus:
Bankrupt bill is brought on, with some very threatening features to landed & farming men, who are in danger of being drawn into it’s vortex. It assumes the right of seizing & selling lands, and so cuts the knotty question of the Constitution whether the general government may direct the transmission of land by descent or otherwise.—The post office is not within my department, but that of the treasury.—I note duly what you say of Mr. Skinner, but I don’t believe any bill on Weights & measures will be passed. Adieu. Dr. Sir, Yours affectionately.
TO THOMAS MANN RANDOLPHJ. MSS.
Philadelphia Dec. 21, 1792.
We have as yet no direct information from France of the retreat of the D. of Brunswick. However so many circumstances are stated in the English papers as to leave no doubt of the fact.—Wheat is fallen from 125 to 112 cents. This has been effected by the bank here, which refused to merchants purchasing wheat here the aids it has been in the habit of furnishing. Merchants no longer getting their bills discounted at the bank, have been obliged to draw bills of exchange & also to sell their stock to make their purchases of wheat, the consequence has been that exchange stock & wheat have fallen. However the demand will continue to be great.—Will you be so good as to ask of Smith George a list of the tools of which he has need to enable him to do good work in every way in which he can work. I shall be glad to get them while here.—You have heard of the proposed tax on horses. It is uncertain what will be it’s fate. Besides it’s partiality, it is infinitely objectionable as foisting in a direct tax under the name of an indirect one.—A bankrupt bill is brought in in such a form as to render almost all the land holders South of this state liable to be declared bankrupts. It assumes a right of seizing & selling lands. Hitherto we had imagined the general government could not meddle with the title to lands.—My love to my dear Martha & am Dear Sir, Your’s affectionately.
TO THE U. S. MINISTER TO FRANCE
Philadelphia Dec. 30. 1792.
My last to you was of Mar. 7. since which I have received your Nos. 8. and 9. I am apprehensive that your situation must have been difficult during the transition from the late form of government to the re-establishment of some other legitimate authority, and that you may have been at a loss to determine with whom business might be done. Nevertheless when principles are well understood their application is less embarrassing. We surely cannot deny to any nation that right whereon our own government is founded, that every one may govern itself under whatever forms it pleases, and change these forms at it’s own will, and that it may transact it’s business with foreign nations through whatever organ it thinks proper, whether King, convention, assembly, committee, President, or whatever else it may chuse. The will of the nation is the only thing essential to be regarded. On the dissolution of the late constitution in France, by removing so integral a part of it as the King, the National Assembly, to whom a part only of the public authority had been delegated, sensible of the incompetence of their powers to transact the affairs of the nation legitimately, incited their fellow citizens to appoint a national convention during this defective state of the national authority. Duty to our constituents required that we should suspend paiment of the monies yet unpaid of our debt to that country, because there was no person or persons substantially authorized by the nation of France to receive the monies and give us a good acquittal. On this ground my last letter desired you to suspend paiments till further orders, with an assurance, if necessary, that the suspension should not be continued a moment longer than should be necessary for us to see the re-establishment of some person or body of persons with authority to receive and give us a good acquittal. Since that we learn that a Convention is assembled, invested with full powers by the nation to transact it’s affairs. Tho’ we know that from the public papers only, instead of waiting for a formal annunciation of it, we hasten to act upon it by authorizing you, if the fact be true, to consider the suspension of paiment, directed in my last letter, as now taken off, and to proceed as if it had never been imposed; considering the Convention, or the government they shall have established as the lawful representatives of the Nation and authorized to act for them. Neither the honor nor inclination of our country would justify our withholding our paiment under a scrupulous attention to forms. On the contrary they lent us that money when we were under their circumstances, and it seems providential that we can not only repay them the same sum, but under the same circumstances. Indeed, we wish to omit no opportunity of convincing them how cordially we desire the closest union with them: Mutual good offices, mutual affection and similar principles of government seem to have destined the two people for the most intimate communion, and even for a complete exchange of citizenship among the individuals composing them.
During the fluctuating state of the Assignats of France, I must ask the favor of you to inform me in every letter of the rate of exchange between them & coin, this being necessary for the regulation of our custom houses. We are continuing our supplies to the island of St. Domingo at the request of the Minister of France here. We would wish however to receive a more formal sanction from the government of France than has yet been given. Indeed, we know of none but a vote of the late National Assembly for 4 millions of livres of our debt, sent to the government of St. Domingo, communicated by them to the Minister here, & by him to us. And this was in terms not properly applicable to the form of our advances. We wish therefore for a full sanction of the past & a complete expression of the desires of their government as to future supplies to their colonies. Besides what we have furnished publicly, individual merchants of the U. S. have carried considerable supplies to the island of St. Domingo, which have been sometimes purchased, sometimes taken by force, and bills given by the administration of the colony on the minister here, which have been protested for want of funds. We have no doubt that justice will be done to these.1
[1 ]This is the first or rough draft of the letter. The copy as finally framed and sent being printed in the State Papers (Foreign Relations, I., 201), with an appendix of documents in support of the letter. This draft was submitted to Madison and Edmund Randolph (see VI., 487) and then to Hamilton, who made the following notes, upon which Jefferson commented as indicated. This paper is printed in the two editions of Hamilton’s Works, but in both is misdated “March, 1791.”
TH. J. TO J. MADISON
[1 ]This whole section in [ ] is struck out in original.
[1 ]In the copy printed in the State Papers, these quotations are all translated.
[1 ]Portion in [ ] struck out in original.
[1 ]Blackstone. T. J.
[1 ]“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 aussitôt qu’il est possible. C’est sans doute ainsi qu’on l’aentendu.”—T. J.
[1 ]Instead of this, Fort Erie was by error inserted in my letter of Decr 15.—T. J.
[1 ]Portion in [ ] struck out in original.
[1 ]Portion in  struck out in original.
[1 ]This is the first letter written by Jefferson to Lafayette after the abolition of titles.
[1 ]Young wrote to Washington concerning American agriculture, and Jefferson undertook to prepare some notes on the subject, resulting in the above. They were sent to Young, who commented on them as follows:
“Philadelphia, June 28, 1793.
I should have taken time ere this, to have considered the observations of Mr. Young, could I at this place have done it in such a way as would satisfy either him or myself. When I wrote the notes of the last year, I had never before thought of calculating what were the profits of a capital invested in Virginia agriculture. Yet that appeared to be what Mr. Young most desired. Lest therefore, no other of those whom you consulted for him, should attempt such a calculation, I did it; but being at such a distance from the country of which I wrote, and having been absent from that, and from the subject in consideration, many years, I could only, for my facts, recur to my own recollection, weakened by time, and very different applications, and I had no means here of correcting my facts. I, therefore, hazarded the calculation, rather as an essay of the mode of calculating the profits of a Virginia estate, than as an operation which was to be ultimately relied on. When I went last to Virginia, I put the press copy of those notes into the hands of the most skilful and successful farmer in the part of the country of which I wrote. He omitted to return them to me, which adds another impediment to my resuming the subject here. But indeed, if I had them, I could only present the same facts, with some corrections, and some justifications of the principles of calculation. This would not, and, ought not, to satisfy Mr. Young. When I return home, I shall have time and opportunity of answering Mr. Young’s inquiries fully. I will first establish the facts, as adapted to the present times, and not to those to which I was obliged to recur by recollection, and I will make the calculation on rigorous principles. The delay necessary for this, will, I hope, be compensated by giving something which no endeavors on my part shall be wanting to make worthy of confidence. In the mean time, Mr. Young must not pronounce too hastily on the impossibility of an annual production of 750l worth of wheat, coupled with a cattle product of 125l. My object was to state the product of a good farm, under good husbandry, as practised in my part of the country. Manure does not enter into this, because we can buy an acre of new land cheaper than we can manure an old one. Good husbandry with us, consists in abandoning Indian corn and tobacco; tending small grain, some red clover, fallowing, and endeavouring to have, while the lands are at rest, a spontaneous cover of white clover. I do not present this as a culture judicious in itself, but as good, in comparison with what most people there pursue. Mr. Young has never had an opportunity of seeing how slowly the fertility of the original soil is exhausted, with moderate management of it. I can affirm, that the James river low-grounds, with the cultivation of small grain, will never be exhausted; because we know, that, under that cultivation, we must now and then take them down with Indian corn, or they become, as they were originally, too rich to bring wheat. The high-lands where I live, have been cultivated about sixty years. The culture was tobacco and Indian corn, as long as they would bring enough to pay the labour; then they were turned out. After four or five years rest, they would bring good corn again, and in double that time, perhaps, good tobacco. Then they would be exhausted by a second series of tobacco and corn. Latterly we have begun to cultivate small grain; and excluding Indian corn, and following, such of them as were originally good, soon rise up to fifteen or twenty bushels the acre. We allow that every labourer will manage ten acres of wheat, except at harvest. I have no doubt but the coupling cattle and sheep with this, would prodigiously improve the produce. This improvement, Mr. Young will be better able to calculate than any body else. I am so well satisfied of it myself, that having engaged a good farmer from the head of Elk (the style of farming there you know well), I mean in a farm of about five hundred acres of cleared land, and with a dozen labourers to try the plan of wheat, rye, potatoes, clover, with a mixture of some Indian corn with the potatoes, and to push the number of sheep. This last hint I have taken from Mr. Young’s letters, which you have been so kind as to communicate to me. I had never before considered, with due attention, the profit from that animal. I shall not be able to put the farm into that form exactly the ensuing autumn, but against another I hope I shall; and I shall attend with precision to the measures of the ground, and to the product, which may, perhaps, give you something hereafter to communicate to Mr. Young, which may gratify him; but I will furnish the ensuing winter, what was desired in Mr. Young’s letter of January 17, 1793.”
[1 ]Gouverneur Morris to the President.
[1 ]From the original in the possession of the Virginia Historical Society.
[1 ]This letter is printed in Hamilton’s Works of Hamilton, IV., 314, as written to Hamilton, and the termination slightly changed.
[1 ]From a copy in the possession of Miss S. N. Randolph.
[1 ]Jefferson has here struck out the following lines: “the oldest friends will cross the street to avoid meeting each other. People must have a wonderful propensity to self-torment who can prefer the harsher feelings of the mind, who would rather that.”
[1 ]In a paper dated Nov. 1, 1792, Jefferson suggested an alteration in this paper, as follows:
[1 ]From the Southern Bivouac, II., 434.
[1 ]Copy of a paper enclosed to the President, Oct., 1792.
“Paris Sep. 26. 1786.—It being known that M. de Calonne the minister of finance for this country is at his wits end how to raise supplies for the ensuing year, a proposition has been made by a Dutch company to purchase the debt of the U. S. to this country for 20 millions of livres in hand. His necessities dispose him to accede to the proposition, but a hesitation is produced by the apprehension that it might lessen our credit in Europe, & perhaps be disagreeable to Congress. I have been consulted hereon by the Agent for that company. I informed him that I could not judge what effect it might have on our credit, & was not authorized either to approve or disapprove of the transaction. I have since reflected on this subject. If there be a danger that our payments may not be punctual, it might be better that the discontents which would thence arise should be transferred from a court of whose good will we have so much need to the breasts of a private company, but it has occurred to me that we might find occasion to do what would be grateful to this court and establish with them a confidence in our honor. I am informed that our credit in Holland is sound, might it not be possible then to borrow there the four & twenty millions due to this country, & thus pay them their whole debt at once. This would save them from any loss on our account, nor is it liable to the objection of impropriety in creating new debts before we have more certain means of paying them; it is only transferring a debt from one creditor to another, & removing the causes of discontent to persons with whom they would do us less injury. Thinking that this matter is worthy the attention of Congress I will endeavor that the negotiation shall be retarded till it may be possible for me to know their decision, which therefore I will take the liberty of praying immediately.”
Neither the quotation used by Hamilton nor Jefferson’s fuller extract follows the text of the original letter exactly, each being slightly changed to accentuate or palliate the suggestion. See also the reference to this matter in the letter to Madison of March, 1793.
[1 ]“Observations—The first clause to this commission, specifies the jurisdiction of Mr. de la Forest as Consul general for New York, Jersey, Pensva & Delaware. All the subsequent clauses use the restrictive words la dite charge, la dite qualité, referring clearly to the description in the first clause, except the last one, le dit Sr. la Forest de la charge, not repeating the word dite before charge, yet it is impossible to understand it but as referring to the preceeding charge. To consider the body of the commission as a commission of Consul general for N. Y. Jers. Pens. & Del. and the clause of Nous Prions, &c. as another commission to be Consul general over all the U. S. would be against every rule of construction. The king cannot be supposed to pray us to receive him as Consul general over all the U. S. He had not established him in the preceeding part but as Consul genl. of N. Y. Jers. Pens. & Del.”
[1 ]Washington wrote to Jefferson concerning this as follows:
“Philadelphia Novr. 3d. 1792.
Your letter to Messrs. Carmichael and Short (now returned) is full & proper.—I have added a word or two with a pencil, which may be inserted or not as you shall think best.—The intention of them is to do away the charge of Sovereignty over more than are within our own territory.
“The erazures from the Speech as you advise are made, except exchange the word ‘high’ for ‘just.’ If facts will justify the former (as I think they indubitably do), policy, I conceive, is much in its favor:—For while so many unpleasant things are announced as the Speech contains, it cannot be amiss to accompany them with communications of a more agreeable nature.—I am always—Yours.”
[1 ]See Annals, III., 740, 1411. A copy of this was enclosed to the President, in the following letter:
“Sat. Dec. 1, 92.
“Th. Jefferson has the honor to submit to the President the inclosed draught of a clause which he has thought of proposing to the committee to whom the President’s letter with the accounts of the Department of State are referred. He will have the honor of waiting on the President at one o’clock, as well to explain any parts of it as to take his pleasure on the whole matter.”
[2 ]1790, July 1. c. 22. T. J.
[3 ]to wit 1791, Mar. 2. c. 16. 1792, May 2. c. 126. T. J.
[1 ]The acts of 1790 & 1792 are for the purpose of intercourse with foreign nations; that of 1791. is for a treaty with Morocco. T. J.
[1 ]To this Jefferson has added a note at a later period:
[1 ]This is not dated, but was probably written in December, 1792. The message sent was entirely different. See Journal of the Senate, I., 462.
[1 ]This is undated, but is apparently Jefferson’s comment on the bankrupt bill introduced in the House of Representatives by W. L. Smith as chairman of a committee, Dec. 10. 1792.
[1 ]The completion of this letter is lost.