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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
[July 9-10,1781]1 The underwritten the Delegates attending in Congress from the Common Wealth of Virginia, beg leave to communicate to the Supreme Executive Council of the Common Wealth of Pennsylvania, the Information they have received from George Nicolson an Agent from the State of Virginia now in this City.
"That an Attachment granted by a Magistrate of the City of Philadelphia hath been levied on fifteen Bales of Merchandise, imported in the Ship Franklin, the property of the State of Virginia and in the possession of Messrs. Butler & Mifflin, who have been summoned to appear and answer as Garnishees-a Copy of the Attachment and Sheriff's Return of the Execution thereof is hereunto annexed, That these Goods are for cloathing the Troops of the State in the Continental Army and were shipped on Board the Franklin by Mr. P. Penet Merchant in France, and addressed to the Care of Mr. Robert Morris for the Use of the Commonwealth of Virginia, as by the Bill of Loading and Invoice ready to be produced if required may appear."(2)
The Underwritten think it necessary to communicate this Transaction to the Supreme Executive Council for their Information; and take the Liberty of observing that they conceive the Goods in Question-the property of the State of Virginia cannot be arrested or detained by process issuing from any of the Courts or Magistrates of Pennsylvania or any other State in the Union, such proceeding necessarily involving one of two Consequences, either that the State, whose property is thus arrested, suffer the Inconvenience of an exparte Adjudication ever dangerous to the Rights of property, or abandon its Sovereignty by descending to answer before the Tribunal of another Power-Alternatives, which, it is equally the Interest of the State of Pennsylvania as of Virginia, to avoid.
The Courts of Law in the Common Wealth of Virginia being open, as well to the Citizens of other States, as to her own, the said Simon Nathan, as well as any other individual might have applied there, for Justice, and obtained it.(3) If his Demand, although just, were of such a Nature as to be out of the reach of the Courts of Law, still the Case would not be without Remedy; as on Petition to the Legislature, the Supreme Authority of the State, it would no doubt be attended to, and redressed.
Besides the Consequences above stated, it will occur to the Supreme Executive Council, that great Evils may ensue to the particular State, and to the Union in general, if Individual Claims be allowed to arrest the Military Supplies of one State imported into or passing through another in Time of War, and to withold them from her until released by the usual Courts of Law.
Page 390
JULY 9-10, 1781
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The underwritten therefore cannot but consider this proceeding as unwarrantable; derogatory to the Rights of Sovereignty of the State of Virginia, and requiring the immediate Interference of the Authority of the State of Pennsylvania to put a Stop thereto; and for restoring the Goods to the Condition they were in when the Attachment was levied.(4)
Jos. Jones. Theok. Bland
James Madison Junr M. Smith
RC (PHi: Gratz Collection). Written by Smith and signed by Smith, Bland, Jones, and Madison. Endorsed: "1781 July 12th. From delegates of Virga state respg. property of Virga. attached by Simon Nathan." Madison, Papers (Hutchinson), 3: 184-85.
1 This memorial was undoubtedly written after the delegates' receipt of the July 9 writ they included with it but before Pres. Joseph Reed's July 10 reply, for which see the following notes.
2 The action taken by Philadelphia authorities and described to the delegates by agent Nicolson had its origin in a complex claim that Philadelphia merchant and money-lender, Simon Nathan, pressed against the Virginia government from 1780 through 1791, for which see Virginia Delegates to Thomas Jefferson, March 27, note 2, and April 3, 1781, note 1. In this instance, Nathan had obtained a writ on July 9 directing the Philadelphia County sheriff to attach the "Goods and Chattles, Rights and Credits" of the Commonwealth of Virginia that "may be found in your Bailwick." Virginia representatives were further directed to appear at a September 5 session of the Court of Common Pleas "to answer Simon Nathan in a Plea of Trespass." Following the writ, which Meriwether Smith copied at the bottom of the memorial, Smith also noted that Sheriff William Will had seized "fifteen Bales Goods marked SV" which had been consigned to "Messrs. Jonathan Mifflin and Sol. Butler." The delegates' memorial, the writ, and the sheriffs "Return" are printed in Pa. Archives, 1st ser. 9:260-61.
3 In June 1779 the Virginia assembly had opened the state's judicial system to "free white inhabitants of every of the states, parties to the American confederation" and entitled them to "all rights, privileges, and immunities of free citizens in this commonwealth." See Hening, Statutes, 10:130.
4 In his July 10 reply, Pres. Joseph Reed expressed the Council's "entire Disapprobation of the Measure," but since the case could "establish a Precedent of great Importance," the Council thought it prudent "to advise with the Law Officer of the State." Subsequently Reed directed Attorney General William Bradford to confer with Thomas McKean and George Bryan of the state's supreme court. The gist of their July 12 ruling was that "the Commonwealth of Virginia being an independent & Sovereign power, cannot be compelled to appear or answer in any Court of Justice within this State." That day Reed advised the Virginia delegates that steps would be taken for the "immediate Restoration of the Property" seized and offered to seek "Punishment of the offending Parties" if there were "no mitigating Circumstances" and the delegates thought it proper. See Pa. Archives, 1st ser. 9:266, 271-72; and Madison, Papers (Hutchinson), 3:187, 190-91. See also Virginia Delegates to Joseph Reed, July 13, 1781.
Page 391
JULY 10, 1781
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