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House of Lords. Feb. 17, 1783. - 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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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.
[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.