The Writings of Thomas Jefferson, Vol. 3 (of 9)

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 5s. 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.