Section 1. I can assure you with truth, that we meet you on this

occasion, with the sincerest dispositions to remove from between the

two countries those obstacles to a cordial friendship, which have arisen

from an inexecution of some articles of the treaty of peace. The desire

entertained by this country, to be on the best terms with yours, has

been constant, and has manifested itself through its different forms of

administration, by repeated overtures to enter into such explanations and

arrangements as should be right and necessary to bring about a complete

execution of the treaty. The same dispositions lead us to wish, that the

occasion now presented should not be defeated by useless recapitulations

of what had taken place anterior to that instrument. It was with concern,

therefore, I observed that you had thought it necessary to go back to

the very commencement of the war, and in several parts of your letter

to enumerate and comment on all the acts of our different legislatures,

passed during the whole course of it, in order to deduce from thence,

imputations which your justice would have suppressed, had the whole truth

been presented to your view, instead of particular traits, detached from

the ground on which they stood. However easy it would be to justify our

country, by bringing into view the whole ground, on both sides, to show

that legislative warfare began with the British Parliament; that when they

levelled at persons or property, it was against entire towns or countries,

without discrimination of cause or conduct, while we touched individuals

only; naming them man by man, after due consideration of each case, and

careful attention not to confound the innocent with the guilty; however

advantageously we might compare the distant and tranquil situation of

their Legislature with the scenes in the midst of which ours were obliged

to legislate; and might then ask, whether the difference of circumstance

and situation would not have justified a contrary difference of conduct,

and whether the wonder ought to be, that our legislatures had done so

much, or so little? we will waive all this, because it would lead to

recollections, as unprofitable as unconciliating. The titles of some of

your acts, and a single clause of one of them only, shall be thrown among

the documents at the end of this letter, No. 1, 2, and with this we will

drop forever the curtain on this tragedy!

Sec. 2. We now come together to consider that instrument which was to heal

our wounds, and begin a new chapter in our history. The state in which

that found things, is to be considered as rightful: so says the law of

nations. [6]"L'état où les choses se trouvent au moment du traité doit

passer pour legitime; et si l'on veut y apporter du changement il faut que

le traité en fasse une mention expresse. Par consequent toutes les choses

dont le traité ne dit rien, doivent demeurer dans l'etat où elles se

trouvent lors de sa conclusion." Vattel, 1. 4, s. 21. [7]"De quibus nihil

dictum, ea manent quo sunt loco." Wolf, 1222. No alterations then are to

be claimed on either side, but those which the treaty has provided. The

moment, too, to which it refers, as a rule of conduct for this country at

large, was the moment of its notification to the country at large. Vattel,

1. 4, s. 24. [8]"Le traité de paix oblige les _parties contractantes_ du

moment qu'il est conclu aussitôt qu'il a reçu toute sa forme; et elles

doivent procurer incessamment l'execution; mais ce traité n'oblige les

_sujets_ que du moment qu'il leur est notifié." And s. 25. "Le traité

devient _par la publication_, une loi pour les sujets, et ils sont obligés

de se conformer désormais aux dispositions dont on y est convenu." And

another author as pointedly says, [9]"Pactio pacis _paciscentes_ statim

obligat quam primum _perfecta_, cum ex pacto veniat obligatio. Subditos

vero et milites, quam primum iisdem fuerit _publicata_; cum de eâ _ante

publicationem ipsis certo constare non possit_." Wolf, s. 1229. It was

stipulated, indeed, by the ninth article, that "if, before its arrival in

America," any place or territory, belonging to either party, should be

conquered by the arms of the other, it should be restored. This was the

only case in which transactions, intervening between the signature and

publication, were to be nullified.

Congress, on the 24th of March, 1783, received informal intelligence

from the Marquis de la Fayette, that provisional articles were concluded;

and, on the same day, they received a copy of the articles, in a letter

of March 19th, from General Carleton and Admiral Digby. They immediately

gave orders for recalling all armed vessels, and communicated the orders

to those officers, who answered, on the 26th and 27th, that they were not

authorized to concur in the recall of armed vessels, on their part. On the

11th of April, Congress received an official copy of these articles from

Dr. Franklin, with notice that a preliminary treaty was now signed between

France, Spain and England. The event having now taken place on which the

provisional articles were to come into effect, on the usual footing of

preliminaries, Congress immediately proclaim them, and, on the 19th of

April, a cessation of hostilities is published by the commander-in-chief.

These particulars place all acts preceding the 11th of April out of

the present discussion, and confine it to the treaty itself, and the

circumstances attending its execution. I have therefore taken the liberty

of extracting from your list of American acts all of those preceding

that epoch, and of throwing them together in the paper No. 6, as things

out of question. The subsequent acts shall be distributed, according to

their several subjects, of I. Exile and confiscation: II. Debts: and III.

Interest on those debts:

Beginning, I. with those of exile and confiscation, which will be

considered together, because blended together in most of the acts, and

blended also in the same article of the treaty.

Sec. 3. It cannot be denied that the state of war strictly permits

a nation to seize the property of its enemies found within its own

limits, or taken in war, and in whatever form it exists, whether in

action or possession. This is so perspicuously laid down by one of the

most respectable writers on subjects of this kind, that I shall use his

words, [10]"Cum ea sit belli conditio, ut hostes sint omni jure spoliati,

rationis est, quascunque res hostium apud hostes inventas dominum mutare,

et fisco cedere. Solet præterea in singulis fere belli indictionibus

constitui, ut bona hostium, tam _apud nos reperta_, quam capta bello

publicentur. Si merum jus belli sequamur, etiam _immobilia_ possent vendi,

et eorum pretium in fiscum redigi, ut in mobilibus obtinet. Sed in omni

fere Europa sola fit annotatio, ut eorum fructus, durante bello, percipiat

fiscus, finito autem bello, ipsa immobilia ex pactis restituuntur

pristinis dominis." Bynkersh. Quest. Jur. Pub. 1. 1, c. 7. Every nation,

indeed, would wish to pursue the latter practice, if under circumstances

leaving them their usual resources. But the circumstances of our war were

without example; excluded from all commerce, even with neutral nations,

without arms, money, or the means of getting them abroad, we were obliged

to avail ourselves of such resources as we found at home. Great Britain,

too, did not consider it as an ordinary war, but a rebellion; she did

not conduct it according to the rules of war, established by the law of

nations, but according to her acts of parliament, made from time to time,

to suit circumstances. She would not admit our title even to the _strict

rights_ of ordinary war; she cannot then claim from us its _liberalities_;

yet the confiscations of property were by no means universal, and that of

debts still less so. What effect was to be produced on them by the treaty,

will be seen by the words of the fifth article, which are as follows:

Sec. 4. "Art. V. It is agreed, that the Congress shall earnestly

recommend it to the Legislatures of the respective States, to provide

for the restitution of all estates, rights, and properties, which have

been confiscated, belonging to real British subjects, and also of the

estates, rights, and properties, of persons resident in districts in the

possession of his Majesty's arms, 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 the thirteen United States, and

therein to remain twelve months, unmolested in their endeavors to obtain

the restitution of such of their estates, rights, and properties, as may

have been confiscated; and that Congress shall also earnestly recommend

to the several States a reconsideration and revision of all 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 that Congress shall also earnestly recommend

to the several States, that the estates, rights, and properties, of such

last-mentioned persons, shall 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. And it

is agreed, that all persons who have any interest in confiscated lands,

either by debts, marriage, settlements, or otherwise, shall meet with no

lawful impediment in the prosecution of their just rights."

"Art. VI. That there shall be no future confiscations made."

Sec. 5. Observe, that in every other article, the parties agree expressly,

that such and such things _shall be done_; in this, they only agree to

_recommend_ that they shall be done. You are pleased to say (page 7), "It

cannot be presumed, that the Commissioners, who negotiated the treaty of

peace, would engage, in behalf of Congress, to make _recommendations_ to

the Legislatures of the respective States, which they did not expect to

be effectual, or enter into direct stipulations which they had not the

power to enforce." On the contrary, we may fairly presume that, if they

had had the power to _enforce_, they would not merely have _recommended_.

When, in every other article, they agree expressly _to do_, why in

this do they change the style suddenly, and agree only to _recommend_?

Because the things here proposed to be done were retrospective in their

nature--would tear up the laws of the several States, and the contracts

and transactions, private and public, which had taken place under them;

and retrospective laws were forbidden by the constitutions of several of

the States. Between persons whose native language is that of his treaty,

it is unnecessary to explain the difference between _enacting_ a thing to

be done, and _recommending_ it to be done; the words themselves being as

well understood as any by which they could be explained. But it may not

be unnecessary to observe, that _recommendations_ to the people, instead

of _laws_, had been introduced among us, and were rendered familiar in

the interval between discontinuing the old, and establishing the new

governments. The conventions and committees who then assembled, to guide

the conduct of the People, having no authority to oblige them by law,

took up the practice of simply recommending measures to them. These

recommendations they either complied with or not, at their pleasure. If

they refused, there was complaint, but no compulsion. So, after organizing

the Governments, if at any time it became expedient that a thing should

be done, which Congress, or any other of the organized bodies, were not

authorized to ordain, they simply recommended, and left to the People,

or their Legislatures, to comply, or not, as they pleased. It was

impossible that the negotiators on either side should have been ignorant

of the difference between agreeing _to do_ a thing, and agreeing only to

_recommend_ it to be done. The import of the terms is so different, that

no deception or surprise could be supposed, even if there were no evidence

that the difference was attended to, explained, and understood.

Sec. 6. But the evidence on this occasion removes all question. It is

well known that the British court had it extremely at heart, to procure

a restitution of the estates of the refugees who had gone over to their

side; that they proposed it in the first inferences, and insisted on it to

the last; that our commissioners, on the other hand, refused it from first

to last, urging, 1st. That it was unreasonable to restore the confiscated

property of the refugees, unless they would reimburse the destruction of

the property of our citizens, committed on their part; and 2dly. That it

was beyond the powers of the commissions to stipulate, or of Congress to

enforce. On this point, the treaty hung long. It was the subject of a

special mission of a confidential agent of the British negotiator from

Paris to London. It was still insisted on, on his return, and still

protested against, by our commissioners; and when they were urged to

agree only, that Congress should _recommend_ to the State Legislatures

to restore the estates, &c., of the refugees, they were expressly told

that the Legislatures would not regard the recommendation. In proof of

this, I subjoin extracts from the letters and journals of Mr. Adams and

Dr. Franklin, two of our commissioners, the originals of which are among

the records of the Department of State, and shall be open to you for a

verification of the copies. These prove, beyond all question, that the

difference between an express agreement to do a thing, and to recommend

it to be done, was well understood by both parties, and that the British

negotiators were put on their guard by those on our part, not only that

the Legislature will be free to refuse, but that they probably would

refuse. And it is evident from all circumstances, that Mr. Oswald accepted

the _recommendation_ merely to have something to oppose to the clamors

of the refugees--to keep alive a hope in them, that they might yet get

their property from the State Legislatures; and that, if they should fail

in this, they would have ground to demand indemnification from their own

Government; and he might think it a circumstance of present relief at

least, that the question of indemnification by them should be kept out of

sight, till time and events should open it upon the nation insensibly.

Sec. 7. The same was perfectly understood by the British ministry, and by

the members of both Houses in Parliament, as well those who advocated, as

those who oppose the treaty; the latter of whom, being out of the secrets

of the negotiation, must have formed their judgments on the mere import

of the terms. That all parties concurred in this exposition, will appear

by the following extracts from the parliamentary register; a work, which,

without pretending to give what is spoken with verbal accuracy, may yet

be relied on, we presume, for the general reasoning and opinions of the

speakers.

House of Commons.--_The preliminary articles under consideration; 1783,

February 17th._

_Mr. Thomas Pitt._--"That the interests of the sincere loyalists were

as dear to him, as to any man; but that he could never think it would

have been promoted by carrying on that unfortunate war, which Parliament

had in fact suspended before the beginning of the treaty; that it was

impossible, after the part Congress was pleased to take in it, to conceive

that their _recommendation_ would not have its proper influence on the

different Legislatures; that he did not himself see what more could have

been done on their behalf, except by renewing the war for their sakes,

and increasing our and their calamities."--_9 Debrett's Parliamentary

Register_, 233.

_Mr. Wilberforce._--"When he considered the case of the loyalists, he

confessed he felt himself there conquered; there he saw his country

humiliated; he saw her at the feet of America! Still he was induced to

believe, that Congress would religiously comply with the article, and that

the loyalists would obtain redress from America. Should they not, this

country was bound to afford it them. They must be compensated. Ministers,

he was persuaded, meant to keep the faith of the nation with them, and

he verily believed, had obtained the best terms they possibly could for

them."--_Ib._ 236.

_Mr. Secretary Townsend._--"He was ready to admit, that many of the

loyalists had the strongest claims upon this country; and he trusted,

should the _recommendation_ of Congress to the American States prove

unsuccessful, which he flattered himself would not be the case, this

country would feel itself bound in honor to make them full compensation

for their losses."--_Ib._ 262.

House of Lords.--_February 17, 1783._

_Lord Shelburne._--"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 recommendation 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.

_Lord Hawke._--"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

in 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."

_Lord Walsingham._--"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 recommendations of Congress. Rhode Island

unanimously refused, when the Congress desired to be authorized to

lay a duty of five per cent. because the funds had failed. Many other

circumstances 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 Parliamentary

Reg. 44._

_Lord Sackville._--"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 not very accurate ideas of our

government. All of them, however, have perfectly understood, that a

_recommendation_ was a matter, not of obligation or coercion, but of

persuasion and influence, merely. They appear to have entertained greater

or less degrees of hope or doubt, as to its effect on the Legislatures,

and though willing to see the result of this chance, yet, if it failed,

they were prepared to take the work of indemnification on themselves.

Sec. 8. The agreement then being only that Congress should _recommend_ to

the 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 receipt of the definitive articles, to wit, on the

14th of January, 1784, come to the following resolution, viz: "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 Britannic Majesty's arms, at any time

between the 30th day of November, 1782, and the 14th 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 endeavors 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."

Sec. 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 5th 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 your 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:

Sec. 10. _Georgia._--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.

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.

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.

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

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.

Sec. 11. _South Carolina._--1783, August 15th. 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 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.

1786, March 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.

1784, March 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 laws; 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, where sold, requiring from those in lists

No. 1, and 3, to pay 12 per 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 and 3, who had borne military commissions against them,

from holding any office for seven years.

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.

Sec. 12. _North Carolina._--1784, October. An act directing the sale of

confiscated property.

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 property

"heretofore confiscated," and secure purchasers under those former

confiscations.

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.

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.

1785, Nov. An act to amend the preceding act.

1788, April. 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.

Sec. 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. But they did not choose 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--

1783, October, The act prohibiting the migration of certain persons to

this commonwealth, and for other purposes therein mentioned, which was

afterwards amended by,

1786, October, An act to explain and amend the preceding. These acts,

after declaring who shall not 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.

Sec. 14. _Maryland._--1785, Nov. An act to vest certain powers in the

Governor and council. Sec. 3;

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.

1790. The ease 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.

Sec. 15. _Delaware._--This State, in the year 1778, passed an act of

confiscation against forty-six 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.

Sec. 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. An order of the executive council

to sell part of Harry Gordon's real estate, under the act of January 31,

1783. This person had been summoned by proclamation, by the name of Henry

Gordon, to appear before the first day of November, 1781, and failing,

his estate was seized by the commissioners of forfeitures, and most of

it sold. The act of 1783, January 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. 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.

Sec. 17. _New Jersey._--The only act alleged against this State, as to

the recommendatory article, is,

1783, December 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. 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.

Sec. 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; its 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, 1784, May 12, 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.

Sec. 19. _Connecticut._--A single act only on the same subject is alleged

against this State, after the treaty of peace. This was

1790, An act directing certain confiscated estates to be sold. The title

shows 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.

Sec. 20. _Rhode Island._--The titles of four 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.

1783, June 8, An act to send William Young, theretofore banished out of

the State, and forbidden to return at his peril.

1783, June 12, An act allowing William Brenton, late an absentee, to visit

his family for one week, then sent away, not to return.

1783, October, 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, "he had sent

me all the acts of that Legislature, that affect either the debts, or the

persons of British subjects, or American refugees." 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.

Sec. 21. _Massachusetts._--1784, March 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--

1784, November 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.

Sec. 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 right against the subjects or adherents of their enemies.

The acts, then, which have been complained of as violations of the 5th

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.

Sec. 23. And we may further observe, with respect to the same acts, that

they have been considered as infractions not only of the 5th article,

which recommended the restoration of the confiscations which _had taken

place during the war_, but also of that part of the 6th article which

forbade _future_ confiscations. But not one of them touched an estate

which had not been before confiscated; for you will observe, 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; and,

consequently, it will not be necessary to notice again this part of the

6th article.

Sec. 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 stayed within the

British lines, but had not borne arms] certainly comprehended a virtual

acquiescence in their right to reside where their property was situated,

and 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, and the collateral testimony adduced, have shown 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, and 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; and as to British subjects, by the silence of the article, and the

improbability that the British plenipotentiary meant to stipulate a right

for British subjects to emigrate and become members of another community.

Sec. 25. Again, in page 34, it is said, "The nation of Great Britain has

been involved in the payment to them of no less a sum than four millions

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 counter claim of indemnification to much larger amount. It has been

supposed, and not without grounds, that the glimmering of hope, provided

by the recommendatory article, was to quiet, for the present, the clamors

of the sufferers, and to keep their weight out of the scale of opposition

to the peace, trusting to time and events for an oblivion of these claims,

or 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, and 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, though 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,

and 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 and 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 worst of the

bargain by the alternative you choose to accept, of indemnifying your own

sufferers, rather than ours.

Sec. 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 December 15.

In the 7th article, it was stipulated, that his Britannic Majesty should

withdraw his armies, garrisons, and 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 March,

1783, as _provisionally_ agreed; and on the 5th of April they received

official notice from their court of the conclusion and ratification of

the preliminary articles between France, Spain, and Great Britain, which

gave activity to ours, as appears by the letter of Sir Guy Carleton to

General Washington, dated April 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 May 6, a _large_ number of them

had already been embarked for Nova Scotia, of which, as contrary to an

express stipulation in the treaty, General Washington declared to him his

sense and surprise. In the letter of Sir Guy Carleton of May 12 (annexed

to mine to you of the 15th of December), 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; and 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, General Carleton went on in daily

infractions, embarking, from time to time, between his notice of the

treaty and the 5th of April, and the evacuation of New York, November

25, 3,000 negroes, of whom our commissioners had inspection, and a very

large number more, in public and private vessels, of whom they were not

permitted to have inspection. Here, then, was a direct, unequivocal and

avowed violation of this part of the 7th 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 laborers withdrawn; and when, in the very

act of violation, we warn, and put the commanding officer on his guard,

he says, directly, he will go through with the act, and leave it to his

court to adjust it by compensation.

Sec. 27. By the same article, his Britannic Majesty stipulates, that he

will, _with all convenient speed_, withdraw his garrisons from _every_

post within the United States. "When no precise term," says a writer

on the Law of Nations [Vattel, 1. 4. c. 26.], "has been marked for the

accomplishment of a treaty, and for the execution of each of its articles,

good sense determines that every point should be executed _as soon as

possible_. This is, without doubt, what was understood."[11] The term

in the treaty, _with all convenient speed_, amounts to the same thing,

and 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, and persons, and finally for the act of evacuation. The larger

the post, the longer the time necessary to remove all its contents; the

smaller, the sooner done. Hence, though General 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 and stores; the seat, as it were, of their general government, and

the asylum of those who had fled to them. A great quantity of shipping

was necessary, therefore, for the removal, and 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,[12] Detroit,

Niagara, Oswego, Oswegatchie, Point-au-Fer, Dutchman's Point, were not of

this magnitude. The orders for evacuation, which reached General 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, and 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, and

the water connecting them; or by crossing immediately over into their

own territory, and 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 from 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 August, 1783, Major-General Baron Steuben, by orders from

General Washington, having repaired to Canada for this purpose, wrote the

letter No. 22 to General Haldimand, Governor of the province, and received

from him the answer of August 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 arrangements 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 March, 1784, Governor Clinton, of New York, within

the limits of which State some of these posts are, writes to General

Haldimand, the letter No. 25; and that General, answering him, May 10,

from Quebec, says, "Not having had the honor _to receive orders_ and

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.

Again, on the 12th of July, Colonel Hull, by order from General Knox,

the Secretary of War, writes to General Haldimand, the letter No. 27;

and General Haldimand gives the answer of the 13th, No. 28, wherein

he says, "Though 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 August,

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, and at

the same time, as the order to evacuate New York; and _all delay, after

this, was in contravention of the treaty_.

Sec. 28. Was this delay merely innocent and unimportant to us, setting

aside all considerations but of interest and safety? 1. It cut us off from

the fur-trade, which before the war had been always of great importance

as a branch of commerce, and as a source of remittance for the payment

of our debts to Great Britain; for the injury of withholding our posts,

they added the obstruction of all passage along the lakes and their

communications. 2. It secluded us from connection with the northwestern

Indians, from all opportunity of keeping up with them friendly and

neighborly intercourse, brought on us consequently, from their known

dispositions, constant and expensive war, in which numbers of men,

women, and children, have been, and still are, daily falling victims

to the scalping knife, and 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,

and that too, in points so essential, as that, without them, it would

never have been concluded.

Sec. 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 its election to declare it dissolved in all its 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 General 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, and demand reparation, and

that, in the meantime, General Washington continue his remonstrances to

the British commanding officer, and insist on the discontinuance of the

measure. See document No. 29.

Sec. 30. The State of Virginia, materially affected by this infraction,

because the laborers 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 December, 1783, that is to say,

seven months after that particular infraction, and four 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 and continue the several acts for suspending the

issuing executions on certain judgments until December, 1783, that is to

say, they revived, till their next meeting, two acts passed during the

war, which suspended all _voluntary and fraudulent_ assignments of debt,

and as to _others_, allowed real and 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, thirteen months after the

violation last mentioned, and 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; and

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 [C. 7.] the act to

repeal so much of all and every act or acts of assembly, as prohibits the

recovery of British debts; and, at the same time [E. 6.] the act to repeal

part of an act for the protection and encouragement of the commerce of

nations acknowledging the independence of the United States of America.

The former was not to be in force till the evacuation of the posts, and

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 and 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 and encouragement of the

commerce of nations acknowledging the independence of the United States,

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, and with the ordinary

delay. 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.

Sec. 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, and the

almost entire destruction of the means of paying them. They passed [D.

7. 20.] 1784, March 26th, an ordinance respecting the recovery of debts,

suspending the recovery of all actions, as well American as British, for

nine months, and 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, March 28, An act to regulate the recovery and payment of

debts, and 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, October 12th, An act

for regulating sales under executions, and for other purposes therein

mentioned; and

[D. 22.] 1788, Nov. 4, An act to regulate the payment and recovery of

debts, and to prohibit the importation of negroes for the time therein

limited; and 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, and 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,

and the prices of those sold.

Sec. 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, March, 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, and repeated and constant refusals of compliance on their part.

Sec. 33. New Jersey did the same thing, by--

[D. 13.] 1786, March 23, An act to direct the modes of proceedings on

writs on _fieri facias_, and for transferring lands and chattels for

payment of debts; and

[D. 18.] 1786, May 26, An act for striking, and 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_s._ per annum, for twenty-five years, a

legal tender; and

Sec. 34. Georgia, by [D. 19.] 1786, August 14, An act for emitting the

sum of £50,000 in bills of credit, and for establishing a fund for the

redemption, and 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 and 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 accounts, &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 its jurisdiction, and send

them to seek it in foreign countries, and before foreign tribunals.

Sec. 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, 1st. Delay of judgment; 2d. Liberating the

body from execution, on the delivery of property; 3d. 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, and most particularly Georgia, South Carolina, North

Carolina, Virginia, New York, and Rhode Island, had been ravaged by an

enemy, movable property carried off, houses burnt, lands abandoned, the

proprietors forced off into exile and 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 1783, 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 payment by instalments

annually for seven years, and 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 payment 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, and the least injurious to those it is capable of producing. The

instalment acts before enumerated have been much less general, and 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, and provided complete indemnification of the

delay by the payment of interest, which was enjoined in every case.

Sec. 36. The second 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 and

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 and credit, and 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 United States do the

same in all cases, on a cession of property by the debtor. The _levari

facias_, an execution affording only the _profits of lands_, is the

only one allowed in England, in certain cases. The _elegit_, another

execution of that and this country, attaches first on a man's chattels,

which are not to be sold, but to be _delivered to the plaintiff_, on a

_reasonable appraisement_, in part of satisfaction for his debt, and if

not sufficient, one half only of his lands are then to be delivered to the

plaintiff, 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, and 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 friend can expect, is to be treated as a native citizen.

Sec. 37. The third 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, and 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, and other nations. When

any nation of Europe is attacked by another, it has neighbors, with whom

its accustomary commerce goes on, without interruption; and its 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 its soil

can be exchanged for money, as usual, and the stock of that medium of

circulation is not at all diminished by war; so that property sells as

readily and as well, for real money, at the close, as at the commencement

of the war. But how different was our case: on the north and south, were

our enemies; on the west, deserts inhabited by savages in league with

them; on the east, an ocean of one thousand leagues, beyond which, indeed,

were nations, who might have purchased the produce of our soil, and have

given us real money in exchange, and 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 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, and

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 United States 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, and reason and authority declare, "Si l'empêchement

est reel, il faut donner du tems; car nul n'est tenu a l'impossible."[13]

Vattel, l. 4, s. 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."[14] Bynk. Q.

J. P. l. 2, c. 10. 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

its 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, and 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, and the interests and the reason

of their creditors approved.

Sec. 38. It is to be observed, that, during all this time, Congress,

who alone possessed the power of peace and war, of making treaties, and,

consequently, of declaring their infractions, had abstained from every

public declaration, and had confined itself to the resolution of May 26th,

1783, and to repeated efforts, through their minister plenipotentiary at

the court of London, to lead that court into a compliance on their part,

and 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; and inverting

the natural order of cause and effect, alleged that these proceedings

of ours were the causes of the infractions, which they had committed

months and years before. Thus the British minister for foreign affairs,

in his answer of February 28th, 1786, to Mr. Adams' memorial, says, "The

engagements entered into by treaty ought to be mutual, and 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 its own engagements, as often as convenience might render

such deviation necessary, though at the expense of its own national credit

and importance; I flatter myself, however, Sir, that justice will speedily

be done to British creditors; and I can assure you, Sir, that whenever

America shall manifest a real intention to fulfil her part of the treaty,

Great Britain will not hesitate to prove her sincerity to co-operate in

whatever points depend upon her, for carrying every article of it into

real and complete effect." Facts will furnish the best commentary on this

letter. Let us pursue them.

The Secretary for Foreign Affairs of the United States, 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 January 14th, 1784, and the

recommendation accompanying it; and April 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 and execution of treaties, which, on

being constitutionally made, become, by the confederation, a part of the

law of the land, and, as such, independent of the will and power of the

Legislatures; that, in this point of view, the State acts, establishing

provisions relative to the same objects, and 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 and

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 and parts of acts repugnant to the treaty; and 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 Great Britain.

Sec. 39. In consequence of these letters, New Hampshire, Massachusetts,

Rhode Island, Connecticut, New York, Delaware, Maryland, Virginia, and

North Carolina, passed the acts Nos. 32, 33, 34, 35, 36, 37, 38, 39,

40. New Jersey and Pennsylvania declared that no law existed with them

repugnant to the treaty--see documents Nos. 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 Great Britain to

compliance, and had an express repeal been really necessary.

Sec. 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 and demonstrated it,

and the several States, by their acts and explanations before mentioned,

had shown 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 proof 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 acknowledged 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, and to those parts that are

merely _recommendatory_ and _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 United States 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_, and subsequent to

the ratification thereof no proceedings have been had thereon." The

Governor of Connecticut, in his letter, No 18, says, "The sixth 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 the law of the

State, were discontinued, by the treaty operating as a repeal of the

law. In Pennsylvania, Mr. Lewis, attorney for the United States, says, in

his letter, No. 60, "The judges have, uniformly and without hesitation,

declared in favor of the treaty, on the ground of its 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 _vs._ Gordon,

January, 1788, Dallas' Reports, 233, is a proof of this. In Maryland, in

the case of Mildred _vs._ 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, and decreed that the defendant

should pay the money over again to the 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 and counsel there avowed the

opinion, that the treaty would control any law of the State opposed to it.

And the Legislature itself, in an act of October, 1787, c. 36, concerning

moneys 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, and

it is, therefore, unfit for them to determine whether the payments so made

into the loan office be good or void between the creditor and debtor." In

New York, Mr. Harrison, attorney for the United States 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 line, was, immediately after the

treaty, restrained _by the superior courts of the State_ from operating

on British creditors, and 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.

Sec. 41. The very case of Rutgers, _vs._ 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 and 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, and 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 incompetent, according to the regulations

of the existing powers. From this part of the judgment the defendant

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 6th article which declares, "There shall be no future prosecutions

against any persons 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 and authority existing at the time

and place. The tenure of the defendant under the quartermaster general

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 and 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 defendant appealed, and 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.

Sec. 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, and 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 knowledge, and certainly no agency in his

prosecution, John Smith Hatfield, a refugee also from Jersey, and some

others of the same description, seized him, against the express orders

of the British commanding officer, brought him out of the British lines,

and 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, and 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, and 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 and 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 and 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, and the integrity of the judges, have

determined to plead the treaty, and not even give themselves the trouble

of asking a release from the Legislature; and the case is now depending.

See the letter of Mr. Boudinot, member of Congress for Jersey, No. 47.

Sec. 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 and Government have become complete. To comprehend the extent of the

General Government, and to discern the relation between that and those of

the States, will be equally our interest and duty. The Constitution, laws,

and _treaties_ of the Union are _paramount_." 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 and 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, and gave judgment for the plaintiffs.

Sec. 44. The integrity of those opinions and proceedings of the

several courts should have shielded them from the insinuations hazarded

against them. In pages 9 and 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 page 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. [15]"Quod dixi de actionibus recto publicandis ita

demum obtinet; si quod subditi nostri hostibus nostris debent, princeps

a subditis 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 restiuantur veris creditoribus." Bynk. Q. J. P. l. 1, c.

7. But what said the judges of the State court of Maryland in the case

of Mildred and Dorsey? That a debt forced from an American debtor into

the treasury of his sovereign, is not extinct, but shall be paid over

again to his British creditor. Which is most propitious, the unbiassed

foreign jurist, or the American judge, charged with dispensing justice

with favor and 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, and 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 its propriety.

Sec. 45. Again it is said, page 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 _the supreme

federal court_ be meant _the supreme court of the United States_, I

have had their records examined, in order to know what may be the case

here alluded to; and I am authorized to say, there neither does, nor

ever did exist any cause before that court, between a British subject

and a citizen of the United States. 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 United States_, then which circuit, in which

State, and what case is meant? In the course of inquiries I have been

obliged to make, to find whether there exists any case, in any district

of any circuit court of the United States, which might have given rise to

this complaint, I have learnt, that an action was brought to issue, and

argued in the circuit court of the United States, in Virginia, at their

last term, between Jones, a British subject, plaintiff, and Walker, an

American, defendant; wherein the question was the same as in the case of

Mildred and 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, and 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, and having characters and consciences to satisfy,

they followed the example so habitually and so laudably set by the courts

of your country, and of every country, where law, and not favor, is the

rule of decision, of taking time to consider. Time and consideration are

favorable to the right cause, precipitation to the wrong one.

Sec. 46. You say again, p. 29, "The few attempts to recover British debts,

in the courts of Virginia, have _universally_ failed, and these are the

courts wherein, from the smallness of the sum, a considerable number of

debts can only be recovered." Again, p. 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 Great Britain." In the first place, the

county courts, till of late, have had exclusive jurisdiction only of sums

below 10_l._, 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_l._ 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 second place, the evidence of gentlemen who

are in the way of knowing the fact, No. 52, 53, is, that though there have

been accidental checks in some of the subordinate courts, arising from

the chicanery of the debtors, and 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

Great Britain, have been uniformly sustained to judgment and execution.

Sec. 47. A much broader assertion is hazarded, page 29. "In some of the

Southern States, there does not exist a single instance of the recovery

of British debt in their courts, though 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, and those to the south of that.

As to Maryland, the joint certificate of the senators and delegates of

the State in Congress, the letter of Mr. Tilghman, a gentleman of the

law in the same State, and that of Mr. Gwinn, clerk of their general

court, prove that British suits have been maintained in the superior

and 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; and have recovered

in due course of law, and remitted large debts, as well under contracts

previous, as subsequent to the war.

In Virginia, the letters of Mr. Monroe and Mr. Giles, members of Congress

from that State, and 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 and levied their moneys without obstruction;

for we have no right to consider as obstructions the dilatory pleas

of here and there a debtor, distressed perhaps for time, or even an

accidental error of opinion in a subordinate court, when such pleas have

been overruled, and such errors corrected in a due course of proceeding

marked out by the laws in such cases. The general fact suffices to show

that the assertion under examination cannot be applied to this State.

In North Carolina, Mr. Johnston, one of the senators of 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; and he names a particular case, of

Elmesly _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, and prosecutions carried on, without obstacle, by British

creditors, and 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 and 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

and foreigners of all other nations were equally subjected, then the law

imposing them was a mere nullity.

In Georgia, the letter of the senators and representatives in Congress,

No. 56, assures us that, though 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; and that the federal court is as open and

unobstructed to British creditors there, as in any other of the United

States; and this is further proved by the late recovery of Brailsford and

others, before cited.

Sec. 48. You say more particularly of that State, page 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 ever existed, confirming

the treaty of peace with Great 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 and ratified here, set aside a writ in the case

of Thompson, (a British subject) _v._ Thompson, assigning for reasons,

1st. "That there was no law authorizing a subject of England to sue

a citizen of that State; 2d. That the war had not been _definitively_

concluded; or 3d. If concluded, the treaty not _known to, or ratified

by_, the Legislature; nor 4th. 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 and times of paying British debts would have been settled

in the definitive treaty. No. 58 shows, 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

and 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, and 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; and 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 completed_, that they are paramount to the

laws of the several States, as has been seen in this charge to a grand

jury, before spoken of, (Sec. 43,) will relieve your doubts whether the

"principle still continues in that State, of the _continuance of war

between the two countries_."

Sec. 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, and with effect;

yet it has often been matter of surprise that more were not brought, and

earlier, since it is most certain that the courts would have sustained

their actions and 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 color 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 United States, whenever

the creditors would choose that recourse, and would press, if necessary,

to the highest tribunals, would be found as open to their suits, and as

impartial to their subjects, as theirs to ours.

Sec. 50. There is an expression in your letter, page 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 p. 8, "In many of the States, the subjects of

the crown in endeavoring to obtain the restitution of their forfeited

estates and 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, and 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 its 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 United States, nor any, where the laws have more regular

course, or are more habitually and cheerfully 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.

Sec. 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 Great 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 and 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, 1st. Those who were

insolvent at that time. 2d. Those solvent then, who became insolvent

during the operations of the war--a numerous class. 3d. Those solvent

at the close of the war, but insolvent now. 4th. Those solvent at the

close of the war, who have since paid or settled satisfactorily with

their creditors--a numerous class also. 5th. Those solvent then and now,

who have neither paid, nor made satisfactory arrangements with their

creditors. This last class, the only one now in question, is little

numerous, and 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 Great 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.

Sec. 52. In drawing a comparison between the proceedings of Great Britain

and the United States, you say, page 35, "The conduct of Great Britain,

in all these respects, has been widely different from that which has

been observed by the United States. In the courts of law of the former

country, the citizens of the United States have experienced, _without

exception_, the same protection and _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 and partiality will be ultimately

corrected. With this qualification, we have heretofore been in the habit

of considering the administration of justice in Great 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 and 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 sterling,

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 and Charnock, British subjects, that a citizen of the United

States, who had delivered £43,000 sterling 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 Great

Britain, though his debtor is found there, is in custody of the court,

and acknowledges the fact. 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, and such as these, are the smaller

matters between the two nations, which, in my letter of December 15th, 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.

Sec. 53. III. It is made an objection to the proceedings of our

legislative and 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 and forms of the country, its 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, and they must finish in the hands

of fallible men as judges. If the error be evident, palpable, [16]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

inquire into its 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, and palpable degree, which proves it to flow from the wickedness

of the heart, and not error of the head in the judges, then is it 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.

Sec. 54. The treaty is the text of the law in the present case, and its

words are, that there shall be no lawful impediment to the recovery of

bona 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."[17] 2 Salk. 622, 623. Formerly, all interest was considered as

unlawful, in every country of Europe; it is still so in Roman Catholic

countries, and countries little commercial. From this, as a general rule,

a few special cases are excepted. In France, particularly, the exceptions

are those of minors, marriage portions, and 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 and 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, and, 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 and 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 T. 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 Chan. Rep. 184, 2 P. W.

163. Ca. temp. Talbot 2.

2. For maintenance. Vin. Abr. Interest. c. 10.

3. For moneys advanced by executors. 2 Abr. Eq. 531, 15.