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Subject Area: Political Theory
Topic: The American Revolution and Constitution

TO RECAPITULATE - Thomas Jefferson, The Works, vol. 7 (Correspondence 1792-1793) [1905]

Edition used:

The Works of Thomas Jefferson, Federal Edition (New York and London, G.P. Putnam’s Sons, 1904-5). Vol. 7

Part of: The Works of Thomas Jefferson, 12 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


TO RECAPITULATE

§ 56. I have, by way of Preliminary, placed out of the present discussion, all acts & proceedings prior to the Treaty of Peace, considering them as settled by that instrument, & that the then state of things was adopted by the parties, with such alterations only as that instrument provided.

I have then taken up the subsequent acts and proceedings, of which you complain, as infractions, distributing them according to their subjects: to wit,

  • I. Exile and Confiscations.
  • II. Debts.
  • III. Interest.

I. Exile and Confiscations. After premising that these are lawful acts of war; I have shewn that the Vth. article was recommendatory only,

It’s stipulations being, not to restore the confiscations and exiles, but to recommend to the state legislatures to restore them.

That this word, having but one meaning, establishes the intent of the parties: & moreover that it was particularly explained by the American negotiators that the legislatures would be free to comply with the recommendation or not, & probably would not comply:

That the British negotiators so understood it:

That the British ministry so understood it:

And the members of both houses of parliament, as well those who approved as who disapproved the article.

I have shewn that Congress did recommend earnestly & bonâ fide:

That these states refused or complied, in a greater or less degree, according to circumstances, but more of them & in a greater degree than was expected:

And that Compensation by the British treasury, to British sufferers, was the alternative of her own choice, our negotiators having offered to do that if she would compensate such losses as we had sustained by acts authorized by the modern & moderate principles of war.

II. Before entering on the subject of Debts, it was necessary

1. To review the British infractions, and refer them to their exact dates.

To shew that the carrying away of the negroes preceded the 6th of May, 1783.

That instead of evacuating the Upper posts with all convenient speed,

No order had been received for the evacuation Aug 13. 1783.

None had been received May 10. 1784.

None had been received July 13. 1784.

From whence I conclude none had ever been given:

And thence that none had ever been intended.

In the latter case, this infraction would date from the signature of the treaty, but founding it on the not giving the order with convenient speed,

It dates from April 1783. when the order for evacuating New York was given:

And there can be no reason why it should have been inconvenient to give this order as early.

The Infraction then respecting the Upper Posts, was before the treaty was known in America:

That respecting the Negroes, was as soon as it was known.

I have observed that these infractions were highly injurious.

The first, by depriving us of our fur-trade, profitable in itself,

And valuable as a means of remittance for paying the Debts:

By intercepting our friendly & neighborly intercourse with the Indian nations, & consequently keeping us in constant, expensive & barbarous war with them.

The second, by withdrawing the cultivators of the soil, the produce of which was to pay the debts.

2. After fixing the date of the British infractions, I have shewn

That as they preceded, so they produced, the acts on our part complained of as obstacles to the recovery of the Debts:

That when one party breaks any stipulation of a treaty, the other is free to break it also, either in the whole, or in equivalent parts, at it’s pleasure.

That Congress having made no election,

Four of the states assumed separately to modify the recovery of debts

1. By indulging their citizens with longer & more practicable times of payment:

2. By liberating their bodies from execution, on their delivering property to the creditor, to the full amount of his demand, on a fair appraisement, as practised always under the Elegit.

3. By admitting, during the first moments of the non-existence of coin among us,

A discharge of executions, by payment in paper money.

That the first of these acts of retaliation was in Dec. 1783. nine months after the infractions committed by the other party:

And all of them were so moderate, of so short duration, the result of such necessities, and so produced, that we might with confidence have referred them, alterius principis, quâ boni viri, arbitrio.

[3. That Congress had so far thought it best neither to declare, nor relinquish, the infractions of the other party, neither to give, nor refuse, their sanction to the retaliations by the four states.]1

3. That, induced at length by assurances from the British court, that they would concur in a fulfilment of the treaty,

Congress, in 1787, declared to the states it’s will that even the appearance of obstacles raised by their acts should no longer continue,

And required a formal repeal of every act of that nature; & to avoid question required it as well from those who had not, as from those who had passed such acts: which was complied with so fully that no such laws remained in any state of the Union, except one:

And even that one could not have forborne; if any symptoms of compliance from the opposite party had rendered a reiterated requisition from Congress, important.

4. That indeed the requiring such a repeal, was only to take away pretext: for

That it was at all times perfectly understood that Treaties controuled the laws of the states:

The Confederation having made them obligatory on the whole:

Congress having so declared and demonstrated them:

The legislatures & executives of most of the states having admitted it:

& the Judiciaries, both of the separate & general governments, so deciding.

That the courts are open every where upon this principle:

That the British creditors have, for some time, been in the habit & course of recovering their debts at law

That the class of separate & unsettled debts, contracted before the war, forms now but a small proportion of the original amount:

That the integrity and independance of the courts of justice in the U S. are liable to no reproach

Nor have popular tumults furnished any ground for suggesting that either courts or creditors are overawed by them in their proceedings.

III. Proceeding to the article of Interest, I have observed

That the decision Whether it shall, or shall not be allowed durg the war, rests, by our constitution, with the Courts altogether.

That, if these have generally decided against the allowance, the reasons of their decisions appear so weighty, as to clear them from the charge of that palpable degree of wrong which may authorize National complaint, or give a right of refusing execution of the treaty, by way of reprisal.

To vindicate them, I have stated shortly, some of the reasons which support their opinion:

That Interest during the war, was not expressly given by the treaty:

That the revival of Debts did not, ex vi termini, give interest on them.

That interest is not a part of the debt, but damages for the detention of the debt:

That it is disallowed habitually in most countries,

Yet has never been deemed a ground of national complaint against them:

That in England also, it was formerly unlawful in all cases:

That at this day it is denied there in such a variety of instances, as to protect from it a great part of the transactions of life:

That in fact there is not a single title to debt, so formal & sacred,

As to give a right to Interest, under all possible circumstances, either there or here:

That, of these circumstances, Judges & Jurors, are to decide in their discretion, & are accordingly in the habit of augmenting, diminishing or refusing interest in every case, accordg to their discretion:

That the circumstances against the allowance are unquestionably of the strongest in our case:

That a great national calamity, rendering the lands unproductive, which were to pay the interest, has been adjudged a sufficient cause of itself to suspend interest:

That were both pl. & def. equally innocent of that cause,

The question, who should avoid loss? would be in favor of the party in possession:

And, à fortiori, in his favor, where the calamity was produced by the act of the demandant.

That moreover, the laws of the party creditor, had cut off the personal access of his debtor;

And the transportation of his produce or money to the country of the creditor, or to any other for him:

And where the Creditor prevents paiment, both of Principal & interest, ye. latter, at least, is justly extinguished:

That the departure of the Creditor, leaving no Agent in the country of the Debtor, would have stopped Interest of itself:

The Debtor not being obliged to go out of the country to seek him:

That the British minister was heretofore sensible of the weight of the objections to the claim of Interest:

That the Declarations of Congress, & our Plenipotentiaries, previous to the Definitive treaty, & the silence of that instrument

Afford proof that Interest was not intended on our part, nor insisted on on the other:

That were we to admit interest on money to equal favor with profits on land, arrears of profits would not be demandable in the present case, nor consequently arrears of interest:

And, on the whole, without undertaking to say what the law is, which is not the province of the Executive,

We say that the reasons of those judges who deny interest during the war appear sufficiently cogent

To account for their opinion on honest principles:

To exempt it from the charge of palpable & flagrant wrong, in re minimé dubiâ:

And to take away all pretence of withholding execution of the treaty, by way of reprisal for that cause.

§ 57. I have now, sir, gone through the several acts & proceedings enumerated in your Appendix, as infractions of the treaty, omitting, I believe, not a single one, as may be seen by a Table hereto subjoined, wherein every one of them, as marked and numbered in your Appendix, is referred to the section of this letter in which it is brought to view, and the result has been, as you have seen

1. That there was no absolute stipulation to restore antecedent confiscations, & that none subsequent took place:

2. That the recovery of the debts was obstructed validly in none of our states, invalidly only in a few, & that not till long after the infractions committed on the other side: and

3. That the decisions of courts & juries against the claims of interest, are too probably founded, to give cause for questioning their integrity. These things being evident, I cannot but flatter myself, after the assurances received from you of his Britannic majesty’s desire to remove every occasion of misunderstanding from between us, that an end will now be put to the disquieting situation of the two countries, by as complete execution of the treaty as circumstances render practicable at this late day. That it is to be done so late, has been the source of heavy losses of blood & treasure to the U. S. Still our desire of friendly accommodation is, & has been, constant. No “lawful impediment has been opposed to the prosecution of the just rights of your citizens.” And if any instances of unlawful impediment have existed, in any of the inferior tribunals, they would, like other unlawful proceedings, have been overruled on appeal to the higher courts. If not overruled there, a complaint to the government, would have been regular, & their interference probably effectual. If your citizens would not prosecute their rights, it was impossible they should recover them, or be denied recovery: and till a denial of right through all the tribunals, there is no ground for complaint, much less for a refusal to comply with solemn stipulations the execution of which is too important to us ever to be dispensed with. These difficulties being removed from between the two nations, I am persuaded the interests of both will be found in the strictest friendship. The considerations which lead to it are too numerous and forcible to fail of their effect: & that they may be permitted to have their full effect, no one wishes more sincerely than he who has the honor to be, with sentiments of the most perfect esteem & respect Sir your most obedt. & most humble servt.

[1 ]Portion in [] struck out in original.