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A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875
Journals of the Continental Congress --FRIDAY, OCTOBER 13, 1786.
Congress assembled. Present as before.
On the report of a committee, consisting of Mr. [Josiah] Hornblower, Mr. [John Cleves] Symmes and Mr. [Melancton] Smith, to whom was referred a memorial of captain Daniel Baldwin, with a report of the secretary at War and board of treasury thereon,
Resolved, by 9 States, That the Commissioner of Army Accounts make out a certificate to capt. Daniel Baldwin for one thousand dollars, in full for his services, expences and disbursements, for public service, during the time he was stationed at Newark, in New Jersey, in consequence of an Order from his Excellency the commander in chief.
Congress resumed the consideration of the Ordinance for establishing a board, to liquidate and settle all accounts between the United States and individual states: and a motion was made by Mr. [Charles] Pinckney, seconded by Mr. [Edward] Carrington, to insert in the Ordinance, in lieu of the paragraph struck out, the following clause:
That where supplies have been furnished by individuals for the use of the army of the United States, from the 1 January, 1780, and have been assumed by any state, the said board are hereby authorised and
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instructed to liquidate the said claims upon the same principles as if they had remained in the hands of individuals, and admit them as a charge against the United States; that all other debts due from the United States to individuals and assumed by any state be liquidated, upon the same principles as if they had remained in the hands of the individuals, and admitted as a charge against the United States in their general account with the state so assuming; provided that nothing contained in this resolution be taken or construed to prejudice or affect the resolutions of February 25 and of 1 June, 1780, or any other resolution, allowing a state payment for supplies furnished the United States.1
[Note 1: 1 This motion, in the writing of Charles Pinckney, is in the Papers of the Continental Congress, No. 36, III, folio 309.]
A motion was made by Mr. [Melancton] Smith, seconded by Mr. [William Samuel] Johnson, to amend the motion by striking out the words "upon the same principles as if they had remained in the hands of individuals, and admit them as a charge against the United States:" And on the question, shall these words stand? the yeas and nays being required by Mr. [Charles] Pinckney,
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So the question was lost, and the words were struck out.
A question being taken on the motion as amended, was lost.
The second reading being gone through, and the Ordinance further amended, it was read a third time: And on the question, shall the ordinance as amended pass? the yeas and nays being required by the state of South Carolina,
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So it was resolved in the affirmative, and the Ordinance was passed as follows:
An Ordinance for establishing a Board to liquidate and settle all Accounts between the United States and individual States.
It is hereby ordained, by the United States in Congress Assembled, that the authority of the Commissioners appointed in pursuance of the resolution of Congress of the 20 February, 1782, shall; from and after the first day of April next, terminate and cease, except the commissioners for the states of North Carolina and Georgia, who shall continue in office for the purpose of settling the claims of individuals for such longer time, not exceeding six months, as the board of treasury shall direct; provided always, that the board of treasury may sooner dismiss any of the said commissioners. That a board, to consist
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of three members, any two of whom shall be a quorum, be appointed, who shall be, and hereby are invested with all the powers and Authorities of the aforesaid commissioners, so far as they relate to the settlement of the Accounts between the United States and individual states, and shall sit where Congress may, from time to time, direct.
That in cases where no written vouchers can be produced for claims founded upon existing resolutions of Congress, and the said board shall receive satisfactory evidence that such vouchers have been destroyed or unavoidably lost, or that, from the circumstances of the case, they have never been obtained, the said board may receive such other evidence as shall be satisfactory to them, provided the same be the best that the nature and circumstances of the case will admit of, and at their discretion may examine on Oath, any person or persons they may think fit, respecting the claims exhibited, whether accompanied with written vouchers or not.
That in cases where the testimony of a witness not residing within twenty miles of the place where the said board shall sit, shall appear to be essential, the said board are hereby authorised to issue a commission to some proper person or persons to take his deposition in writing, with the interrogatories and answers, in presence of the agent or agents of the party claimant, his or their Attorney, and the person appointed by the said board, agent on the part of the United States: And the said board are hereby authorised to appoint some suitable person to be present as agent of the United States, at the taking of such deposition, to interrogate the witness, and observe that his evidence contain the whole truth, and nothing more: And the said board shall, in each commission, notify to the person or persons to whom the said commission may be issued, the name and place of residence of such agent, and the said person or persons shall give due notice, in writing, to the party claimant, and to the said agent to be present at taking such deposition, allowing at the rate of one day for every ten miles the most remote of them shall be from the place where the deposition is to be taken.
That it be, and it is hereby recommended to the legislatures of the several states, to pass laws to enable the said board and the person or persons so commissioned by them, to call before them respectively, witnesses, and examine them on Oath or affirmation, in all matters touching the claims exhibited to the said board.
That where any state has claims against the United States, not authorised or sanctioned by existing resolutions of Congress, and the
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same shall be laid before the said board, within one year after the organization thereof, the board shall examine the same, and report the state of such claims, with their Opinion thereon to Congress.
That the Commission of the board shall continue in force for three years, unless sooner revoked by Congress. Done, &c.
Office for Foreign Affairs,
October 13, 1786.
The Secretary of the United States for the Department of Foreign Affairs, to whom was referred a Letter of the 4th March last, from the Honble. John Adams, Esquire, together with the papers that accompanied it, reports,
That as the subject of these papers and of this report appears to your Secretary in a very important point of light, he thinks they should be so incorporated as that the record of the latter in this Office may always exhibit an entire and complete view of the whole business. He therefore reports,
That on the 8th day of December, 1785, Mr. Adams, agreeable to his instructions of the 7th day of March, 1785, presented to His Britannic Majesty's Secretary of State a Memorial, dated the 30th day of the preceding month, in the following words:
A Memorial
The Subscriber, Minister plenipotentiary from the United States of America, has the honour to represent to the Ministry of His Britannic Majesty, that by the seventh Article of the preliminary treaty of peace between his Majesty and the United States of America, signed at Paris, on the thirtieth day of November, one thousand seven hundred and eighty two, confirmed by the definitive treaty of peace, signed at Paris, on the 3d. day of September, one thousand seven hundred and
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eighty three, it was stipulated, that his Britannic Majesty should, with all convenient speed, and without causing any destruction, or carrying away any Negroes or other property of the American Inhabitants, withdraw all his Armies, garrisons and fleets from the said United States, and from every port, place and harbour within the same, leaving in all fortifications the American Artillery that may be therein.
That, although a period of three years has elapsed since the signature of the preliminary treaty, and of more than two years since that of the definitive treaty, the posts of Oswegatchy, Oswego, Niagara, Presqueisle, Sandusky, Detroit, Michillimackinac, with others not necessary to be particularly enumerated, and a considerable territory round each of them, all within the incontestable limits of the said United States, are still held by British garrisons, to the loss and injury of the said United States.
The subscriber, therefore, in the name and behalf of the said United States, and in obedience to their express commands, has the honor to require of his Britannic Majesty's Ministry, that all his Majesty's Armies and garrisons be forthwith withdrawn from the said United States, from all and every of the posts and fortresses herein before enumerated, and from every other port, place and harbour, within the territory of the said United States, according to the true intention of the treaties aforesaid.
Done at Westminster, this thirtieth day of November, one thousand seven hundred and eighty five.
John Adams.
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That the answer received by Mr. Adams to the said Memorial is contained in the following letter from the said Secretary of State to Mr. Adams, vizt.
St. Jame's, February 28, 1786.
Sir: In answer to the Memorial you did me the honor to deliver to me on the 3th December, I have to observe to you, Sir, that it is his Majesty's fixed determination, upon the present as well as every other occasion, to act in perfect conformity to the strictest principles of justice and good faith.
The seventh Article both of the provisional and of the definitive treaties between his Majesty and the United States, clearly stipulates the withdrawing with all convenient speed, his Majesty's armies, garrisons and fleets, from the said United States, and from every port, place and harbour within the same; and no doubt can possibly arise respecting either the Letter or spirit of such an engagement.
The fourth Article of the same treaties as clearly stipulates, that Creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted.
The little attention paid to the fulfilling this engagement on the part of the Subjects of the United States in general, and the direct breach of it in many particular instances, have already reduced many of the King's Subjects to the utmost degree of difficulty and distress; nor have their applications for redress, to those whose situations in America naturally pointed them out as the guardians of publick faith, been as yet successful in obtaining them that justice to which, on every principle of law as well as of humanity, they were clearly and indisputably entitled.
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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 publick 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 determination 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.
The enclosed paper contains a state of the grievances complained of by Merchants and other British Subjects having estates, property and debts due to them in the several States of America.
I am, sir, your most obedient, humble servant,
Carmarthen.
John Adams, Esq. &c. &c. &c.
That the state of Grievances mentioned in the said letter, and referred to in it, is as follows:
State of the grievances complained of by Merchants and other British Subjects, having estates, property and debts due to them in the several States of America.
MASSACHUSETTS BAY.
By an Act of this State, passed the 9th of November, 1784, the Justices of the Court of Judicature were directed severally to suspend rendering judgment for any interest that might have accrued between the 19th of
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April and the 20th January, 1783, on debts due to British Subjects. This Act is peculiarly severe on the british Subject, against whom it is expressly pointed; the demand of interest is called inequitable and unjust, and the Legislature of this State conceive it to be repugnant to the spirit and intention of the fourth Article of the treaty of peace, which they say provides only for bona fide debts. The Act states that the Legislature have taken measures to obtain the sense of Congress upon this Article; but the Committee have not heard that any opinion has been given thereon.
NEW YORK.
By an Act passed in this State, the 12th of July, 1782, british Creditors are precluded from the Claim of interest on all debts contracted before the 1st of January, 1776, until after the 1st of January, 1783; and Executions for the principal of those debts are forbidden to be levied, till the expiration of three years after the evacuation of New York. By another Act passed the 17th of March, 1783, and confirmed by others in 1784 and 1785, those Americans who had abandoned their possessions in New York upon its capture by the british troops, and resided without the lines during the War, are enabled to bring Actions of Trespass for rents, &c., during their absence, against the persons who had occupied their premises, whether under the authority or permission of the british Commander or otherwise, and who, by this Act, are precluded from pleading any military order whatsoever, in justification of their occupancy; it also authorises the sequestration of the Estates of british Subjects lying in that Country, for their Conduct during the War. By virtue of this law, Actions for claims to an enormous amount, were immediately instituted against british
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Subjects, who, relying implicitly on the treaty of peace and the faith of nations, were encouraged to remain in New York upon its evacuation, for the purposes of collecting their debts and settling or extending their Commercial Affairs; and in Cases where those who had occupied the premises were not to be found, the demands were made on the Lodger, the late Servant, or the Agent of those Occupiers. These Suits have been prosecuted with the utmost severity, and being determinable by Juries of interested men, as well as conformable to the above-mentioned Statute, it is no wonder that verdicts of exorbitant rents and damages have in every instance been found against the Defendants.
PENNSYLVANIA.
This State has violated the 4th Article of the definitive treaty, by passing a Law soon after the peace to restrain the recovery of the old debts for a given period.
The british Merchants were in consequence thereof set at defiance; and few instances exist of payment having been made for any debts contracted before the War. This Law was limited to September, 1784; but whether it has been further extended by any new Act, or whether it expired at that time, the Committee are not certain. This law, operating with the fears and prejudices of some of the inhabitants, has produced effects of the most mischievous consequence to the british Merchants; for not only a uniform opposition has been made against the payment of interest, but the Lawyers, dreading the resentment of some of the most violent among their Countrymen, have refused to engage in the recovery of these unpopular demands, and the Committee are well assured that not one Action for the payment of an old british debt has been prosecuted in this State.
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VIRGINIA, MARYLAND AND NORTH CAROLINA.
The Merchants interested in the trade to these States, having already by their Chairman presented their Case and Memorial to the right honourable the Marquis of Carmarthen, respecting their situation as to the debts due to them previous to the late War, and the hardships they experience from the infraction of the 4th article of the definitive treaty, the Committee beg leave to refer to the annexed extract.
SOUTH CAROLINA.
After Congress had ratified the definitive treaty of peace, they recommended a due observance thereof to the different States, and the Assembly of South Carolina resolved to carry the said treaty into execution, sincerely, strictly and compleatly, but regardless of those resolutions, and in Contravention to the treaty, the Legislature passed an Ordinance the 26th of March, 1784, declaring among other Things, that no Suit should be instituted for any debt contracted by any Citizen of the United States previous to the 26th of February, 1782, until the 1st of January, 1785, when the interest only which had accrued since January, 1780, might be recovered. And on the 1st of January, 1786, one fourth part of the principal and all such other interest as might be then due. On the 1st of January, 1787, one other fourth part of the principal and the interest which shall have accrued. On the first of January, 1788, one other fourth part of the principal and the interest accrued thereon. And on the 1st of January, 1789, the balance which may be then due.
By this Ordinance, debtors are judicially protected from Suits brought at the instance of their Creditors,
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who are chiefly british Merchants; and so great and general are the obstructions to the recovery of debts, that in several districts remote from Charleston, the Courts have been prevented by tumultuous and riotous proceedings, from determining Actions for debt. By the delay thus occasioned, the property of the british Merchant becomes every day more precarious; his Credit and fortune are materially injured; and in many Cases totally destroyed.
To prevent the operation of the Act beforementioned, in cases where it empowers Creditors to sue for one fourth part of the principal of a debt on the 1st of January, 1786, an Act was passed by this Legislature the 12th of October, 1785, entitled "An Act for regulating sales under execution, and for other purposes therein mentioned;" whereby a debtor, during any period of a Suit that has been or may be commenced, is allowed to tender land in payment of his debt; such Land to be appraised by three Citizens of the County or Parish where it lies, who are authorised to value it as ff sold at a Credit of six months: the Creditor is then obliged to take the Land at three fourths of the value at which it is so appraised. By the same Law it is further enacted, that no Creditor shall bring any Suit for debt, until he make application in writing from himself to his debtor for payment. This Act seems calculated to cut off all possibility of non resident british Creditors commencing a Suit. The proviso that he must write himself to his debtor, is considered as an insurmountable obstacle in his proceedings; as he must meet with innumerable difficulties in proving the delivery of his Letter to a debtor, who may reside in the interiour part of the State. Where this difficulty does not exist, the Creditor must either drop his Action or run the risk of
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having property of little or no value, bordering perhaps on the Indian Country, forced upon him, which, if sold for Cash, would not produce one tenth part of its appraised value. Another instance of the violation of the 4th Article of the treaty, which provides that "Creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted," arises from the payment of debts to british Subjects, in depreciated paper Currency, which was forced into circulation during the War, and made a legal tender, according to its nominal value, by the then Government. The depreciation became so great, that debtors by such unjust tenders did not pay one shilling in the pound; and where they plead those payments or tenders in bar to the demands of their british Creditors, such Creditors are proportionally defrauded of their property.
The fifth Article of the treaty stipulates, that persons of certain descriptions shall have free liberty to go to any part of the United States, to obtain the restitution of their rights and properties. This Article has been grossly violated in this State; for though such persons were permitted to go thither, yet the purposes for which they went were frustrated by a suspension of the course of Justice; for they were compelled to depart by a publick notification from the Governour, and to abandon their property, under the aggravating reflection of having been at considerable expense both of time and money, in a delusive pursuit, and having also experienced great personal insult and abuse during their continuance in the State.
Several british Merchants who had sold goods in Charleston, while in possession of His Majesty's troops, were obliged to accept houses and Lands in payment
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of debts. After its evacuation, an Act of Confiscation was enforced, which, though not passed till the 26th of February, 1782, had retrospect to the 4th of July, 1776. Houses and Lands then the property of persons in purview of the Act, but which had undergone many changes and actually belonged to british Merchants when the Act was passed, were sold by the Commissioners of confiscated estates in June, 1784, without any regard to their Claims, founded upon the 5th and 6th Articles of the treaty of peace. The property was sold at a Credit of five years, and State-rodents were to be received in payment. In case the State of Carolina should comply with the 5th Article of the treaty, it has been suggested that the Claimants will be paid in State-indents, which are already depreciated 50 per Cent. and it is apprehended may at the end of five years be so reduced in value, that Creditors of this description will not receive one shilling in the pound of their demands.
It is also necessary to observe, that the decisions of the Board of police, established under the King's government in Charleston, however equitable, have been set aside since the peace. British Subjects have been deprived of their property, purchased under its process, and cast in excessive damages and Costs, for no other cause than having brought Actions therein for the recovery of debts, even where the defendant had confessed judgment, and when both plaintiff and defendant were british Subjects.
GEORGIA.
Laws and regulations similar to those which have passed in South Carolina exist in this State, with degrees of peculiar and manifest aggravation; the Judges from
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the bench having declared, that no Suit shall be proceeded on if brought by a british Subject; while on the contrary, they allow british Subjects to be sued by their Creditors.
According to the present regulations in both Countries--
An American is protected in his property by our Laws. All our Courts are, and always have been, open to him for the recovery of any debt, as well interest as principal.
A british Merchant is in some States positively, in others virtually, prohibited by their Legislatures from recovering his property, which is a violation of the 4th Article of the treaty of peace. In several States, judgment for interest for more than seven years is actually suspended by Law, whilst in others, although the Courts appear to be open, the Lawyers are afraid to prosecute for British debts. Those Creditors are deemed fortunate who, upon giving up all Claim to interest (which is equal to thirty, and in some instances to forty per Cent.) can obtain security for the payment of the principal.
Extract of the Case and Memorial of the Merchants of London, Bristol, Liverpool, Whitehaven and Glasgow, trading to Virginia, Maryland and North Carolina, previous to the year 1776. Addressed to the right honourable
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the Marquis of Carmarthen, his Majesty's principal Secretary of State for the foreign Department.
That in the year 1777, the british agents and Factors as well as many of the Merchants were compelled to quit the late American Colonies, leaving behind them in real estates, debts and other property, equal in value to more than three millions sterling, belonging to the Merchants of London, Bristol, Liverpool and Glasgow. That in the course of the War, much of the property of the british Merchants was confiscated and sold; and debts owing to persons who had no share in the Contest, were paid into the public treasuries of Virginia and Maryland by Legislative authority.
That the provisional Articles of peace between Great Britain and the United States of America having been agreed upon the 30 November, 1782, and finally adjusted on the 3d of March, 1783, it was settled and agreed by the fourth Article of the said treaty, "That Creditors on either side should meet with no lawful impediment in the recovery of the full value in sterling money, of all bona fide debts heretofore contracted." And the fifth Article having stipulated, that the Congress should earnestly recommend to the Legislatures of the respective States, to provide for the restitution of all estates, rights and properties which had been confiscated, belonging to real british Subjects; and the sixth Article having provided, that there should be no future Confiscations, many of the british Merchants, anxiously solicitous to recover the property so long withheld from them, and upon which the support of their families in many instances depended, sent out Agents and Factors, particularly to Virginia and Maryland, not doubting but they should experience every facility in the collection of the wreck of their fortunes: but upon the 2d of
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July, 1783, an Edict was published by the Governour of Virginia, ordering all the british Agents and Factors who had arrived in that State forthwith to depart the same. That in this situation, these Agents and Factors were not only compelled to retire on board of british Ships, then trading to the Country, but had the mortification to find, that the real estates of many of the british Merchants had been confiscated and sold, and the produce of the same applied to the public services of government. That in the month of October, 1783, the legislative Body of Virginia removed the restriction; in November following, the british Merchants and Agents were permitted to return; and they have remained unmolested since that period; but no permission whatsoever has been given, either to Merchants acting for themselves, or to Agents or Factors acting for Employers in Great-Britain, to recover any part of the debts or property left in the Country in the year 1775. That in the month of October, 1784, the legislative Body of Virginia met; and in the course of the sessions a Bill was brought in, the preamble of which runs thus: "Whereas by the 4th Article of the definitive treaty of peace between the United States of America and Great Britain, ratified by the King of Britain on the 12th day of May last, it was stipulated, among other things, by the said contracting parties, that Creditors on either side shall meet with no lawful impediment in the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted; and good faith requires, that the said treaty shall be carried into execution according to the true intent and meaning thereof." The Bill then proceeds to several enacting Clauses, the substance of which are as follows:--1st. That the restraints disabling british Subjects from prosecuting for the recovery of debts shall be
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removed by the repeal of an Ordinance made since the 19th April, 1775. 2d. That all british debts due before the date of the provisional Articles shall be discharged by seven equal payments, the first of which shall become due the 1st of April, 1786. 3d. That the other payments shall fall due on the same day in the six years then next following respectively. 4th. That no interest shall be allowed to british Subjects for any intermediate time between the 19th day of April, 1775, and the 3d day of March, 1783, the same time to be considered as one day in Law. 5th. That no settlement made by Bonds or other Specialties, with interest included, at any time since that period, shall preclude a Citizen of America from the benefit of this Act, so far as respects interest and payment by instalments to british Creditors. 6th. That no Execution shall issue against any debtor for more than the proportion of the instalment due for the time being; but such Execution may issue annually for the proportion then due, until the whole shall be discharged. 7th. That the Citizens of Virginia who have been resident there on the 19th April, 1775, and have remained ever since, although the partners of british Merchants, shall not, so far as they are concerned, be subject to the restrictions of this act, but shall enjoy the privileges of other Citizens. This Bill passed the Assembly and Senate of Virginia, but from the want of some forms, it was delayed if not lost.
That whether the same system of explaining and fulfilling the fourth Article of the definitive treaty will be followed by other States in America, or whether the Commonwealth of Virginia will finally enact this law, remains to be determined; but the peculiar hardships to which british Merchants are subject cannot fail to be strikingly conspicuous, when it is considered, 1st. That
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it is now ten years since their property has been withheld from them. 2d. That they are to be deprived of eight years interest, equal to 40 per cent. 3d. That the system of making payments by instalments to run out to such lengths of time, must subject them to great loss, from the natural causes of deaths, bankruptcy and removals, which must be expected to happen in the course of eight years. 4th. That during this period no security can be demanded, neither can a debtor be restrained by law from wasting or removing property. 5th. That with all these disadvantages, that of removing the last payment to the year 1792, and of consequence obliging the british Merchants to keep Factors and Agents at a great expense in the Country to collect these debts, cannot fail to prove a great additional burden to your Memorialists. 6th. That no provision is proposed to be made for the real property confiscated and sold for publick services, nor for Money paid into the treasuries of Virginia and Maryland.
That these and other hardships are distressing in the extreme to the british Merchants. And when it is considered, that in addition to all this some of them have had the mortification to have their property confiscated and sold since the ratification of the treaty of peace, they conceive the grounds of their distress to be so peculiarly striking as to claim the assistance and interposition of the British government in procuring a compliance with the treaty of peace entered into with the American States.
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List of money paid into the Treasury in Maryland, on account of British debts.
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N. B. The above sum of £144,574 is equal to £86,744 sterling.
List of money paid into the Treasury in Virginia, on account of British Debts.
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N. B. The above sum of £273,554 13 7, Currency, is equal to £12,035 sterling.
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This and the preceding sheets contain true Copies of the state and lists enclosed in the Marquis of Carmarthen's Letter to me, dated 28th of February, 1786, in answer to the Memorial of the 30th November, delivered to his Lordship the 8th December, 1785, Compared by
John Adams.
On considering the before recited papers, these important questions present themselves:
Of these in their Order; and
1st. Of the right of an individual State to enact in what sense a National treaty shall be understood within its particular Limits.
Your Secretary considers the thirteen independent sovereign States as having, by express delegation of power, formed and vested in Congress a perfect though limited sovereignty for the general and National purposes specified in the Confederation. In this Sovereignty they cannot severally participate (except by their Delegates) or have concurrent Jurisdiction; for the 9th Article of the Confederation most expressly conveys
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to Congress the sole and exclusive right and power of determining on wax and peace, and of entering into treaties and alliances, &c. &c.
When therefore a treaty is constitutionally made, ratified and published by Congress, it immediately becomes binding on the whole nation, and super-added to the laws of the land, without the intervention, consent or fiat of State legislatures. It derives its obligation from its being a compact between the Sovereign of this, and the Sovereign of another Nation; but Laws or statutes derive their force from being Acts of a Legislature competent to the passing of them. Hence it is clear, that treaties must be implicitly received and observed by every member of the Nation; for as State Legislatures are not competent to the making of such Compacts or treaties, so neither are they competent, in that capacity, authoritatively to decide on or ascertain the construction and sense of them. When doubts arise respecting the construction of State Laws, it is common and proper for the State Legislatures by explanatory or declaratory Acts to remove those doubts; but when doubts arise respecting the construction of a treaty, they are so far from being cognizable by a State Legislature, that Congress itself have no authority to settle and determine them. For as the Legislature only, which constitutionally passes a law, has power to revise and amend it, so the Sovereigns only, who are parties to the treaty, have power by posterior Articles and mutual consent to correct or explain it.
All doubts, in cases between private individuals, respecting the meaning of a treaty, like all doubts respecting the meaning of a law, are in the first instance mere judicial questions; and are to be heard and decided in the Courts of Justice having Cognizance of the causes
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in which they arise, and whose duty it is to determine them according to the rules and maxims established by the laws of nations for the interpretation of treaties.
If this reasoning and these principles be right, as your Secretary thinks they are, it follows of consequence that no individual State has a right by legislative Acts to decide and point out the sense in which their particular Citizens and Courts shall understand this or that Article of a treaty. A Contrary doctrine would not only militate against the common and received principles and ideas relative to this subject, but would prove as ridiculous in practice, as it appears irrational in theory; for in that case, the same Article of the same treaty may by law mean one thing in New Hampshire, another in New York, and neither the one nor the other in Georgia.
It would be foreign to the object of this report to inquire how far such legislative Acts are valid and obligatory even within the limits of the State passing them. Much might be said on that head: certain however it is, that they cannot bind either of the contracting Sovereigns, and consequently cannot bind their respective Nations.
2d. Whether any and which of the Acts mentioned in the list of Grievances do violate the treaty with Great Britain?
It is to be observed, that the violations complained of are confined to three Articles of the treaty, viz. the 4th, 5th, and 6th. Your Secretary will therefore proceed to arrange and consider these Acts in that order.
The 4th Article of the treaty is in these Words:
"It is agreed that the Creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted."
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This Article, in the opinion of your Secretary, establishes this point, vizt that the bona fide debts theretofore contracted remained unextinguished by the War. The propriety of making this remark will appear from adverting to the distinction there is between cases where the rights of Creditors survived the war, and cases where Creditors, having been divested of their rights in the course of the War, are restored to them by the treaty of peace. In the former case his right remains precisely as it was; but in the latter case it may sometimes be questionable whether the treaty restores that right wholly, or only in part; and such questions are only to be decided by recurring to the Article of restoration. This distinction is introduced for the purpose of casting light on the question, whether interest is or is not payable on, or comprised in, the bona fide debts mentioned in the Article before us. For if the Article considers these debts or Contracts as being in their original state of extent and obligation, there can be little doubt but that when a stipulation to pay interest makes a part of the Contract, every attempt to invalidate that particular part must be in opposition to the treaty. But, on the other hand, if the Article is to be considered as restoring Creditors to rights they had lost in the war, then inasmuch as it provides only for the recovery of the bona fide debts, without making mention of the interest accrued on them, it may be a question with some, whether the right to recover the interest is so attached to the right of recovering the principal, as that a restoration of the latter necessarily implies and restores the former; for nothing being said in the Article to exclude interest, the only question is, whether the revival of the principal debt does or does not operate as a revival of the interest? But this is only a secondary question, and to be asked only in case it
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should appear that both principal and interest were lost in the war and restored by the treaty under the denomination of bona fide debts, which words some construe as including both principal and interest, and others think can intend only the principal.
They who consider this Article as being restoratory, must insist and ought to shew, that the debts said to be restored were actually lost to the Creditors in the course of the War. If that was the case, they must have been so lost either by extinction, remission or confiscation, and that either tacitly and silently by the laws of war, or expressly by National Acts.
Your Secretary is not informed of any laws of war among Civilized nations whereby all debts before subsisting between the people of belligerent Nations are immediately and silently either extinguished, remitted, or confiscated; and it would he conceives be useless to adduce the obvious reasons which induce him to think that there neither are nor ought to be any such Laws. If this be so, it follows that the 4th Article cannot be considered as restoratory on the principle that the debts in question were lost by the silent operation of such Laws.
The next enquiry then is, whether belligerent powers have a right by express Acts to extinguish, remit or confiscate such debts. Your Secretary thinks, that the laws of Nations strictly and rigidly considered will authorize it; but that since mankind have become more enlightened, and their manners more softened and humanized, it has not been common as well for those reasons, as for others suggested by the interest of Commerce and mutual intercourse, to practise such severities.
But admitting that the United States had a right to extinguish, remit or confiscate debts due from their Citizens to British Subjects, it still remains to be
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required whether, and in what manner, and by what Acts they exercised that right? For ff they did not exercise this right at all, then it will follow that these debts were neither extinguished, remitted nor confiscated, and consequently, that the Article cannot be considered as restoratory; nothing being more clear than that restoration always implies previous deprivation.
Here a very important question presents itself, viz. Whether the State Legislatures can derive a right, from the existence of War between their Sovereign and a foreign one, to extinguish, remit or confiscate, by their Acts, debts due from their Citizens to the Subjects of that foreign Sovereign?
The rights to make war, to make peace, and to make treaties, appertaining exclusively to the National Sovereign, that is, to Congress, your Secretary is of opinion that the thirteen State Legislatures have no more authority to exercise the powers, or pass Acts of Sovereignty on those points, than any thirteen individual Citizens. To execute the laws, or exercise the rights of War against a National enemy, belongs only to the National Sovereign, or to those to whom the National Sovereign may constitutionally delegate such authority. So that whatever right each State, individually considered, may have to sequester or confiscate the property of their own proper Citizens, yet with respect to the common enemy of the Nation, they can separately do no Act of National Sovereignty; for surely a thirteenth part of a Nation can with no propriety assume a power of doing National Acts proper only to the National Sovereign. However recent may be the date of the Confederation, yet an union founded in Compact, and vesting the rights of War and peace in Congress, preceded it; and your Secretary is exceedingly mistaken if there ever was a period
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since the year 1775, to this day, when either of the then Colonies, now States, were in capacity to pass State-laws for sequestering or confiscating the debts or property of a National enemy. It was then, and afterwards, by virtue of National Commissions, that the Enemy's property on the Sea was liable to be captured and confiscated; and equal authority was necessary to justify the confiscation of their property found on the land. Whatever State Acts therefore may have been passed during the war, exercising rights accruing to the Sovereign from the Laws of Nations respecting war, they cannot, in the opinion of your Secretary, be obligatory on either of the belligerent Sovereigns, and consequently not on any of their respective citizens or Subjects.
Your Secretary would not have it inferred from these remarks, that the States have passed general laws for confiscating british debts due from their Citizens. His design in these remarks is to obviate any arguments that might be drawn from certain other Acts less general and direct, but in his opinion equally improper, such for instance as those whereby certain british Subjects were declared Traitors, and whereby, as a consequence of treason, the debts due to them became payable to the State to which those British subjects were declared to be Traitors; for such laws, however absurd, do exist. There are also certain other Laws authorizing the payment of debts due to certain Individuals to be made at the State treasury in paper Money, &c. &c.
The question then again recurs, Did Congress do any Act for extinguishing, remitting or confiscating debts due from Americans to British Subjects?
In an Act of South Carolina, passed in their Senate the 26th February, 1782, and entitled "An Act for disposing of certain estates, and banishing certain persons therein
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mentioned," your Secretary finds the following recital, viz: "Whereas the good people of these States, having not only suffered great losses and damages by Captures of their property on the Sea by the Subjects of his britannic Majesty, but by their seizing and carrying off much property taken on the land. In consequence of such proceedings of the british Crown and those acting under its authority, the honorable Congress of the United States, after due and mature consideration, authorised the seizing and condemnation of all property found on the Sea, and belonging to the Subjects of Great Britain; and recommended to the several States, in which such Subjects had property, to confiscate the same for the publick use."
This recommendation is not specified by its date. Your Secretary has taken pains to find it in the Journals of Congress, but without success; nor does the Secretary of Congress recollect it. Admitting, however, that there was such a recommendation, yet he cannot think that a recommendation to confiscate such british property as might be in particular States, can with any propriety be construed to extend to the debts due from the people of such States to persons in Britain. Nay, the very Act which recites this recommendation, and which does confiscate the property of several british Subjects, makes an express exception of debts.
In short, your Secretary does not know of any Act of Congress whereby debts due from Americans to Britons were either extinguished, remitted or confiscated; and therefore concludes, that the 4th article of the treaty must be understood not as reviving or restoring those debts, but as considering them to be and remain exactly and precisely in their pristine and original state, both with respect to extent and obligation. If this conclusion be
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just, your Secretary can perceive no ground for the singular reasons and questions that have prevailed respecting the payment of interest claimed by british Creditors in virtue of express Contracts between them and their American debtors. However harsh and severe the exaction of this interest, considering the war and its effects, may be and appear, yet the treaty must be taken and fulfilled with its bitter as well as its sweets; and although we were not obliged to accept peace on those terms, yet having so accepted it, we cannot now invalidate those terms or stipulations, nor with honor or Justice refuse to comply with them. Much better would it be for the United States, either severally or jointly, by their bounty to relieve those Suffering and deserving individuals on whom the performance of this Article may press too hard, than by reasonings and Comments which neither posterity or impartial Contemporaries can think just, to permit our National reputation for probity, candor and good faith, to be tarnished.
Your Secretary will conclude what he has to say on the subject of interest with a few short remarks.
It appears to him that there are only three Cases in which interest can with justice be demanded; and that in the first of the three the Courts of Justice are not and ought not to be at liberty to refuse it, vizt.:
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Your Secretary will now proceed to examine the Acts complained of as infractions of this Article. The first on the list is called an Act of Massachusetts, passed the 9th. November, 1784; but it was a resolution of the Legislature, rather than a formal Act. As the abridgement of it in the list of Grievances may not be so satisfactory to Congress as a recital of it at large, your Secretary thinks it best to report it.
Commonwealth of Massachusetts,
In Senate, November 9, 1784.
Whereas the payment of interest which might have accrued during the late war, upon debts due from the
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Citizens of this or any of the United States prior to the commencement of the same, to real british Subjects and others, commonly called Absentees, would be not only inequitable and unjust, but the Legislature of this Commonwealth conceive repugnant to the spirit and intendment of the fourth Article in the treaty of peace, which provides only for the payment of bona fide debts, and as the Legislature have taken measures to obtain the sense of Congress upon the said article, so far as the same respects the payment of interest which might have accrued as aforesaid, and in the mean time Judgments may be obtained in some of the Courts of Law within this Commonwealth for interest accruing as aforesaid, contrary to the true design of the said treaty: Therefore,
Resolved, That in all Actions or suits, which are or may be instituted or brought to any of the judicial Courts within this Commonwealth, wherein any real british Subject or Absentee is plaintiff or defendant, and which actions or suits by the laws thereof are sustainable therein, the Justices of the same Courts are hereby severally directed to suspend rendering judgment for any interest that might have accrued upon the demand contained in such Actions or Suits between the 19th day of April, 1775, and the 20th day of January, 1783, until the third Wednesday of the next sitting of the General Court: provided always, that ff in any such Actions or suits the Plaintiffs shall move for, or by default have right to judgment, then, and in such case, the Justices aforesaid shall cause judgment to be entered for the principal sum, which, by the laws of this Commonwealth, such Plaintiff shall be entitled to recover, and all such interest as accrued thereon before the said 19th day of April, and subsequent to said 20th
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day of January; and Execution shall issue accordingly. And if Congress shall hereafter determine that the interest, which might have accrued on any bona fide debt aforesaid during the War, ought by the treaty aforesaid to be considered as part of such debt, then the said Courts respectively shall proceed to enter a further Judgment for the amount of all such last mentioned interest, without any new process, and issue Execution for such further sum accordingly; and all attachments made or Bail given upon any action instituted as aforesaid, shall be holden to respond the final Judgment that may be given for the amount of such last mentioned interest.
Sent down for concurrence.
Samuel Adams,
President.
In the House of Representatives, November 10, 1784. Read and concurred.
Samuel A. Otis,
Speaker.
Approved,
John Hancock.
A true copy.
Attest, John Avery, jun.,
Secretary.
However this resolution may deviate from the Treaty, and perhaps from the proper jurisdiction of the Legislature, yet it bears strong marks of fairness and regard to equal justice. It states their doubts on the construction of the Article. It does not assume the power of deciding those doubts. It refers that question to Congress; and although it suspends Judgments for interest, yet it does it impartially, and not only in cases where british Creditors are Plaintiffs, but also where
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they are defendants. It also provides, that if Congress should decide in favour of interest, then Judgment and Execution shall be given accordingly.
Your Secretary is nevertheless of opinion that this resolution was an Infraction of the said 4th Article:
Because State Legislatures having no Cognizance of questions respecting the Construction of treaties, can with no propriety suspend their operation on account of any fears or apprehensions which they may entertain of and concerning such questions:
Because, as it appertained to the Courts of Judicature to decide such questions, the Legislature ought not to have restrained those Courts from rendering such judgments as to them appeared consistent with the treaty and the law. For by restraining the Courts from giving Judgment for interest in cases where they would have given such Judgment, unless so restrained, the Legislature did certainly interpose a lawful impediment to the plaintiff's recovering what the Courts were ready to adjudge to be his right under that Article of the treaty; and their so doing was therefore a violation of it.
The next Act complained of as being contrary to this Article is one of New York, passed the 12th July, 1782, which was some months prior to the date of the provisional Articles; so that this complaint must be ill founded, unless this Act (if inconsistent with the treaty) was continued and so executed after the peace as to violate the treaty.
It is by no means accurately stated, as will appear on comparing the account given of it in the list of grievances, with the Act itself, which is in the following words:
An Act relative to debts due to persons within the Enemy's lines, passed 12th July, 1782.
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Whereas many of the inhabitants of this State, who have not remained within the enemy's power, and who were indebted to others who did so remain, are now threatened with suits, and have it not in their power to recover from those who are indebted to them and remained within the power of the enemy.
Be it therefore enacted by the people of the State of New York, represented in Senate and Assembly, and it is hereby enacted by the authority of the same, That all suits and prosecutions for any debt arising on simple Contract, Bills single or penal, or any other Obligation, Mortgage, Security or demand whatsoever, due by or from any person not within the enemy's power or lines, that has remained with, gone into, or has in consequence of any law of this state been sent within the enemy's power or lines, already commenced or which hereafter may be commenced, shall be stayed until the Legislature shall make further provision in the premises, any law to the contrary notwithstanding.
And whereas it is also just and reasonable that provision should be made for the relief of such Citizens of this State, who, having received in payment of debts due to them paper Currency, which at the time of such payment was a legal tender, and which they might of right have paid in discharge of any debts due by them, but which it was not in their power to pay to such of their Creditors as have remained with, gone into, or were so sent within the enemy's lines, and which money has, since the receipt thereof, depreciated in their hands: And whereas it is impossible to apply one general rule to all the variety of cases which do or may arise:
Be it therefore enacted by the authority aforesaid, That in every suit or prosecution which shall be commenced after the Legislature shall by law have declared
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that the necessity of staying such suits or prosecutions as aforesaid do no longer exist, by any person who may have remained with the enemy, gone unto them, sent or to be sent as aforesaid unto them, against any person who has remained without the power of the enemy, it shall and may be lawful for the Court in which such suit shall be commenced or prosecuted, and the court is hereby required, on Motion of the Defendant or his Attorney, to appoint three or five Referees, at the option of the Court, to try the matter in controversy; and the Defendant shall, and hereby is allowed, to plead before such referees any special matter; and if it shall appear to the said Referees or the major part of them, that the special matter alleged and proved by the Defendant is of such a nature that in equity and good conscience abatement ought to be made from any sum or sums due by such Defendant, the Referees shall, by majority of voices, determine the quantum of such abatement; and having made their report and award in writing, shall return the same into Court; and the Court shall thereupon give judgment, and order execution to issue in favour of the Plaintiff for the sum so awarded to be due to the Plaintiff; provided, that such execution shall not be levied until the expiration of three years next after the enemy shall be expelled from, or shall have abandoned the City of New York.
And be it further enacted by the authority aforesaid, That it shall and may be lawful for every Defendant to pay in discharge of any debt so found due, as aforesaid, to such plaintiff as aforesaid, Certificates or Notes signed by any Commissioner of Loans of the United States, according to the value thereof, as settled by the Continental scale of depreciation, or Certificates for
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money due on loan by this State, according to the value thereof, ascertained by law.
And be it further enacted by the authority aforesaid, That it shall and may be lawful for any person now without the power of the enemy, being a debtor to any person now within the power of the enemy, at any time after the enemy shall be expelled from, or shall have abandoned the City of New York, and that the Legislature shall have by law declared that such suits as aforesaid shall be no longer stayed, to cite his Creditors before any Court of law in this State to have a settlement, and make payment agreeable to the mode prescribed by this Act; and if the Creditors shall refuse to appear and come to trial, within two terms next after such Citation, he shall be and hereby is declared to be barred and precluded from recovering his said debt, due or demand, or any part thereof.
Be it further enacted by the authority aforesaid, That any Subject or Subjects of this State, not in the power or lines of the enemy, who are indebted by simple Contract, Bill single or penal, or any other Obligation, Mortgage, Security or demand whatsoever, to any person or persons, that have either remained with, gone into, or have, in consequence of any law of this State, been sent within the enemy's power or lines, for such Subjects of this State, not in the power or lines of the enemy, so indebted, shall be and hereby are discharged from any interest which may have become due on such Contract, bill, Obligation, Mortgage or securities, since the first day of January, 1776, to the first day of January which shall follow next after the conclusion of the present war; any law, usage or custom to the contrary notwithstanding. Provided, that nothing in this clause contained shall be deemed to operate as a discharge of any
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interest which may have accrued on any such bill, obligation, Mortgage or other security, executed since the said first day of January, 1776: Provided nevertheless, that no person or persons shall be allowed the benefit of this Act, unless he, she or they shall first have taken the Oath of abjuration, and the Oath of Allegiance to this State, and shall obtain a Certificate signed by two reputable and well affected Freeholders of this State, one whereof shall be a Judge of the inferiour Court of common pleas of the County in which the person named in such Certificate shall reside, certifying that he or she is well attached to the freedom and independence of the United States of America, and have taken an active and decided part therein: and provided farther, that this Act, shall not extend to any debt or debts, contracted or made, or hereafter to be made for the use of the State, for the payment of which the faith thereof is pledged: and also provided farther, that nothing in this Act contained shall be construed to extend to any person that heretofore hath been, now is, or hereafter shall be a prisoner with the enemy.
It must be obvious to those who carefully peruse this Act, that it neither mentions nor respects british Creditors; and your Secretary is well informed that it never has been construed to extend to them, but on the contrary, it has universally been considered as incapable of such a construction. The complaint urged against it therefore is entirely without reason.
This circumstance shows the necessity of minutely examining the facts and complaints contained in this list of grievances.
The next in order is an Act of Pennsylvania, said to have been passed soon after the peace. to restrain the
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recovery of the old debts for a given period. The one intended is doubtless the following:
An Act for extending the provision made in the seventh section of the Act entitled "An Act for the repeal of so much of the Laws of this Commonwealth as make the Continental bills of Credit and the bills emitted by the resolves or Acts of Assemblies of the said Commonwealth a legal tender, and for other purposes therein mentioned."
Whereas the provision made by the Act entitled "An act for the repeal of so much of the laws of this Commonwealth as make the Continental Bills of Credit, and the Bills emitted by the resolves or Acts of Assemblies of said Commonwealth, a legal tender" in behalf of those persons who from principles of honor and honesty declined paying their debts with a depreciated paper Currency, when they had it in their power by law so to have done, will cease on the twenty first day of June next:
And whereas it was deemed reasonable at the time of passing the aforesaid act, that such honest debtors should not be compelled to pay their old debts till Gold and Silver money should become more plenty and easier to be procured: and Whereas from divers causes, it hath actually become more scarce and difficult to be procured than at the time of passing the aforesaid Act; and in consequence thereof great numbers of honest debtors as aforesaid will be ruined, unless some further relief be provided for them:
Be it therefore enacted, and it is hereby enacted by the representatives of the freemen of the Commonwealth of Pennsylvania in General Assembly met, and by the authority of the same, That no Execution shall issue for the principal sum due by any Contract or species
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of Contract whatever, entered into before the first day of January, 1777, debts due to the State only excepted, until one year from and after the twenty first day of June next ensuing, and from thence until the end of the next sitting of Assembly, any thing in the said Act to the contrary notwithstanding.
And whereas divers debtors, who had contracted debts which by reason of losses and misfortunes in trade they were unable at the time to pay, have, before the first day of January, 1777, assigned and made over their real estates, or such parts thereof as their Creditors were willing to accept, to Trustees, in trust that the same shall be sold within a reasonable time, to pay and satisfy such debts; which said trusts have not been executed: and whereas the scarcity of Cold and Silver hath caused the value of Lands and tenements in most parts of this State to fall vastly below the real value of the same, and if compulsory sales were to be made of such lands and tenements, it is probable they would fall short of paying the debts which they were at first supposed a sufficient security for, to the injury and oppression of both Creditor and Debtor:
Be it therefore enacted by the authority aforesaid, That no sales shall be made by any such trustees of any lands or tenements which were so as aforesaid assigned and made over to them before the said twenty first day of June, 1784, and from thence until the end of the next sitting of Assembly, without the consent in writing of the debtor or assignor, or his legal representatives, first had and obtained.
And be it further enacted by the authority aforesaid, That no Act or Statute of limitation of Actions shall run, or be deemed or taken to have run, at any time between the first day of January, 1776, and the end of one year
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from and after the twenty-first day of June next, upon all debts and Contracts made or entered into before the first day of January, 1776.
And be it further enacted by the authority aforesaid, That whenever it shall appear that any debt or duty was contracted or incurred on or before the first day of January, 1777, and any Bond, Obligation or other security hath been entered into for the payment thereof, since the said first day of January, the Plaintiff who hath brought or shall bring any suit or suits on any such bond or obligation, executed in the manner aforesaid, may proceed to judgment in such action, and may issue his Execution for the interest, damages and costs, as aforesaid; but no Execution shall issue for the principal debt or sum, until one year from and after the twenty-first day of June next, as aforesaid.
And be it also further enacted by the authority aforesaid, That so much of the aforesaid Act as is contrary to this Act, shall be and the same is hereby repealed and made void. Signed by the Order of the House.
Frederick A. Muhlenberg,
Speaker.
Enacted into a law at Philadelphia, on Wednesday the 12th day of March, in the Year of our Lord 1783.
Peter Z. Lloyd,
Clerk of the General Assembly.
To say in general terms this Act was passed to restrain the recovery of the old debts for a given period, was rather conveying harder ideas of it than candor would justify; for from this description one would suppose that the Act was passed to prevent actions being brought for a given period for the recovery of british debts in particular, whereas the Act leaves every british and other Creditor at liberty to commence and prosecute actions to Judgment, and only restrains them for a limited time from
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issuing Executions for the principal sum due. Your Secretary is nevertheless of opinion, that by law to restrain for any given time british Creditors from issuing Execution or judgments regularly obtained, is an infraction of the fourth Article of the treaty, and therefore that this Act of Pennsylvania must be considered in that light.
To this Act the list of Grievances imputes consequences, with which it does not appear to be chargeable. "This law, it says, operating with the fears and prejudices of some of the inhabitants, has produced effects of the most mischievous consequence to the british Merchants; for not only a uniform opposition has been made against the payment of interest, but the Lawyers, dreading the resentment of some of the most violent among their Countrymen, have refused to engage in the recovery of these unpopular demands, &c."
That there may have been an opposition to the payment of interest prevailing in Pennsylvania may be true, but the Act affords no countenance to such opposition, nor does it contain any thing to discourage or to induce the people to discourage Lawyers from commencing actions for the recovery of debts due to british Subjects. That they may have been generally disinclined to such Actions is possible, but surely they must reason strangely who, from the personal disinclination or refusal of Lawyers to be concerned in certain causes, can argue legal impediments to the prosecution of such Causes.
The Act in question was followed by another, which, though less exceptionable, is not altogether free from objections. It passed the 23d December, 1784, and is as follows:
An Act for directing the mode of recovering debts contracted before the first day of January, in the year of our Lord, 1777.
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Whereas most of the debts contracted by the Citizens of this State, before the first day of January, in the Year of our Lord, 1777, which yet remain unpaid, are due and owing from persons, who, from principles of honor and honesty, declined paying their debts in paper Currency of less value than the money in which they were contracted, when by the laws of the state they might have so done, and it would be unreasonable that such debtors should be compelled or compellable to discharge their old debts in gold or silver money until it shall become more plenty, and easier to be acquired: And Whereas divers Acts have been heretofore made, giving time to such debtors to pay such debts, which acts have expired by their own limitation, and it is reasonable to provide a further term for the payment of such debts:
Be it therefore enacted, and it is hereby enacted by the Representatives of the freemen of the Commonwealth of Pensylvania, in General Assembly met, and by the authority of the same, That where any Judgment hath already been or hereafter shall be entered in any Court of Record within this State, against any Citizen or Inhabitant thereof, either by default, or upon the confession of the party, the report of referees, the verdict of a Jury, or otherwise, for any sum of Money contracted for or due upon any Bond, Specialty, Bill, Note, Bill of Exchange, Order, Assumpsit, simple Contract, or otherwise, or for rents, or annuities due or payable before the said first day of January, in the year 1777, Such Court is hereby authorized and required to ascertain the sum or sums so due, in each respective ease, and thereupon to give Judgment for the whole sum due, as well principal as legal interest, to the time of such Judgment being obtained, with stay of execution
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nevertheless for the respective times herein after limited, that is to say, as to one third part of the said principal and interest, and one year's interest thereon, and the whole cost and charges accrued thereon, for the term of one year from and after the passing of this Act: As to one other third part thereof, and one year's interest upon the two third parts thereof, with the increased costs and charges thereon, for the term of two years from and after the passing of this Act; and as to the remaining one third part thereof, with one years interest thereon, and the further increased Costs and charges thereon, for the term of three years from and after the passing of this Act; and that several executions for the said several proportions of the said debts or damages, may and shall be issued at the request of the plaintiff or plaintiffs, his, her or their Executors, Administrators or Assigns, if the said several proportions of the same be not paid and discharged, with interest and Costs, in the manner and at the times above specified. And in all such judgments hereafter to be entered, the stay of Execution shall be regulated in equal third parts, that is to say, the first third part thereof for such time as shall be equal to one third part of the time between the entering of such judgment and the expiration of three years from the passing of this act; the second third part thereof for such time as shall be equal to two third parts of the time from the entering such judgment, and the expiration of three years from the passing of this Act; and the remaining third part thereof until the expiration of the said three years from the passing of this Act; after which time Executions may and shall, at the request of the Plaintiff or Plaintiffs, his or their Executors, Administrators or Assigns,
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or any person for him or them, be issued against the defendant or defendants, his, her or their Executors, Administrators or Assigns, without any writ or writs of Scire Facias to revive such Judgments.
And be it further enacted by the authority aforesaid, That all process and proceedings upon any writs of Execution now issued and in the hands of any Sheriff or other Officer within this State, founded upon Judgments obtained for any such debts due before the first day of January, in the year of our Lord, 1777, shall be stayed; and the Sheriffs and other Officers are hereby forbid to proceed therein, if the Defendant or Defendants in such writ named, or some person for him or them, shall tender and pay to such Sheriff or other Officer the amount of the interest of such debt, and the Costs and Charges accrued thereon, at any time before actual sale of the goods and chattels, lands and tenements, taken in execution, and shall give security that the goods and Chattels (if such be taken in Execution upon such Writs) shall be forth coming in equal plight and of equal value at the expiration of one year from the passing of this Act, and satisfy such debts or damages as in the said writs are specified.
And whereas divers persons have assigned and made over their Estates, or some parts thereof, to Trustees, to be sold for the satisfaction of debts contracted before the said first day of January, 1777, and it is reasonable to allow to such assigning debtors the benefit of the terms herein before allowed to other Debtors for discharging their old debts:
Be it therefore enacted, and it is hereby enacted by the authority aforesaid, That no Assignee or Assignees in trust of the Estate of any debtor, whose debts were contracted and the assignment to secure the same was made before the said first day of January, 1777, shall
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have power to sell, or expose to sale, any part of the lands or tenements so to them or him assigned, for the purpose of raising money to pay such debts within the term of three years from the passing of this act, without the consent of such assigning debtor to be expressed in writing, or by his signing, as a Witness or a party, to the Deeds of Conveyance of the same.
Provided always nevertheless, That nothing contained in this Act shall be taken or construed to affect the recovery of any debt due to this State or to the United States; and that if any defendant or defendants, or any assigning debtor or debtors as aforesaid, are not or shall not be seized in his or their own right, of a real Estate sufficient to satisfy beyond reprizes, all his, her or their debts, and shall be about to depart this State without securing the same, then and in such case, it shall and may be lawful to and for all and every Plaintiff and Plaintiffs, Creditor and Creditors, Assignee or Assignees, to sue out Executions, and proceed to sale, of all their goods and Chattels, lands and tenements, to satisfy such debts, in the same manner as he or they could have done the same, if this act had never been passed, any thing herein contained to the contrary in any wise notwithstanding.
And provided also, and be it further enacted by the authority aforesaid, That this Act, nor any thing therein contained, shall not extend or be construed to extend to any debt or debts which were due before the fourth day of July, 1776, by any of the Citizens of this state, to any of the Subjects of Great Britain.
Signed by order of the House. John Bayard, Speaker.
Enacted into a Law, at Philadelphia, on Thursday, the 23d day of December, in the Year of our Lord, 1784.
Samuel Bryan,
Clerk of the General Assembly.
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It is to be observed, that this Act applies generally to all debts contracted prior to the 1st January, 1777, and that the proviso in favour of british Creditors only prevents its extending to such debts to british Subjects, as were due before the 4th July, 1776; so that the law is left to operate on all debts to british Subjects, which became due between the 4th July, 1776, and 1st January, 1777. This discrimination in those debts appears to your Secretary to be inconsistent with the treaty, and the more so, as debts which became due in the course of that interval might have been, and many of them doubtless were, contracted at a much more early date, and before actual War had taken place between the two Countries. Inasmuch therefore as this Act creates lawful impediments to the recovery of those debts to british Subjects which became due or payable after the 4th July, 1776, your Secretary thinks it does in that respect contravene the 4th Article of the treaty.
Maryland is mentioned in the list of grievances as having violated the treaty by Acts relative to debts due to british Subjects, but no specific complaint or Charge is urged against her, nor is any one of the Acts named as liable to that imputation or construction.
Against Virginia the list of grievances contains pointed Complaints. It states that many british Merchants had sent Agents and Factors to Maryland and Virginia to collect their debts, &c. &c. and that the Governour of Virginia, on the 2d July, 1783, issued (what the Complainants call) an Edict, but in fact a proclamation, ordering as they say, "all the british Agents and Factors who had arrived in that State forthwith to depart the same."
This is not a candid representation of that proclamation. It is as follows:
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By his Excellency, Benjamin Harrison, Esquire, Governour of the Commonwealth of Virginia,
A PROCLAMATION.
Whereas by reason of the late suspension of hostilities between the United States and his Britannic Majesty, and an abuse of those indulgences granted to british Commerce at the last session of General Assembly, many evil disposed persons, still obnoxious to the laws of this commonwealth, have found means to introduce themselves into the same: And Whereas it is probable many others will follow their example, to the disturbance of the peace and harmony of the state, unless speedily prevented by a vigorous execution of the Law:--I have therefore thought fit, with the advice of the Council of State, to issue this my proclamation, hereby commanding all such persons as have either voluntarily left this Country and adhered to the Enemy since the 19th of April, 1775, or have been expelled the same, by any Act of the Legislature or Order of the Executive, or such Natives who have at any time borne arms in the service of the enemy against this Commonwealth, and have since returned without being authorized by law so to do, forthwith to depart the State. And I do further hereby strictly inhibit the return, as well of those as all others coming within the like description, until the determination of the Legislature on this subject can be known. And to the end that this proclamation may have its full effect, I hereby enjoin and command all Officers, Civil and Military, within this Commonwealth, and all others concerned, to pay due obedience thereto.
Given under my hand, and Seal of the Commonwealth, in the Council Chamber, the second day of July, 1783. (Signed) Benjamin Harrison.
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They who read this proclamation cannot easily avoid observing that it has no relation to British Agents and Factors, considered as such, but only to persons of certain descriptions, whose residence in Virginia was inadmissible by the laws then existing, and who while so circumstanced ought not to have gone, or been sent there, either as Factors, or in any other Character. It is also certain that this proclamation was issued on the 2d July, 1783, and that the treaty of peace was not ratified by either of the parties until the following year. It is very extraordinary therefore that, considering its Contents and date, this proclamation should be viewed by any candid eye as an infraction of the 4th or any other Article of the Treaty; especially too as the Complainants knew and do admit that in November, 1783, and before the treaty was ratified, "the legislative body of Virginia removed the restriction."
They further complain, that although the said Agents and Factors have since remained unmolested, yet that "no permission whatsoever has been given either to Merchants acting for themselves, or to Agents or Factors acting for employers in Britain, to recover any part of the debts or property left in the Country in the year 1775." But they do not particularize the Acts of Virginia which impose the restrictions they complain of.
Your Secretary nevertheless believes that fact to be as they represent it, for he finds it standing admitted by the Assembly of Virginia in resolutions they passed on the 22d June, 1784, vizt.
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VIRGINIA TO WIT.
In General Assembly, the 22d of June, 1784.
It appearing to the General Assembly from a Letter from His Excellency General Washington, dated the 7th day of May, 1783, that in obedience to a resolution of Congress, he had a conference with General Carleton, on the subject of delivering up the Slaves and other property belonging to the Citizens of the United States, in compliance with the Articles of the provisional treaty; that he (General Carleton) appeared to evade a compliance with the said Treaty, by a misconstruction of the same, and permitted a large number of the said Slaves to be sent off to Nova Scotia. It further appearing to the General Assembly, from the testimony of Thomas Walke, Esquire, that he together with several other persons from the Counties of Norfolk and Princess Anne, in or about the month of April, 1783, went to New York, with a view of recovering the Slaves which had been taken from them by the british troops during the war; that not being permitted to take possession of those Slaves, which they found in that City, the said Walke made a personal application to General Carleton, and requested a delivery of the said Slaves in compliance with the seventh Article of the treaty which prohibits the carrying off Negroes, or other property, belonging to inhabitants of the United States. This he peremptorily refused, alleging that he was not authorized to do it without particular instructions from the british Government; that at the time of this application the said Walke was informed by an Aid de Camp of General Carleton, that an Agent was appointed to superintend the embarkation, and keep a register of Slaves sent to Nova Scotia; and that he afterwards saw
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the said register, and also saw a large number of Negroes embarked to be sent to that Country. It further appearing to the General Assembly from the testimony of Mr. John Stewart, of the State of Maryland, as well as from a variety of other circumstances, that many applications were made to General Carleton, by Citizens of America, for the restitution of property, which were invariably rejected:
Resolved, That there has been an infraction on the part of Great Britain, of the seventh Article of the treaty of peace between the United States of America and Great Britain, in detaining the Slaves and other property of the Citizens of the United States.
Resolved, That the Delegates representing this State in Congress be instructed to lay before that body the subject matter of the preceding Information and resolution, and to request from them a remonstrance to the british Court, complaining of the aforesaid infraction of the treaty of peace, and desiring a proper reparation of the injuries consequent thereupon; that the said Delegates be instructed to inform Congress, that the General Assembly has no inclination to interfere with the power of making treaties with foreign nations, which the Confederation hath wisely vested in Congress; but it is conceived, that a just regard to the National honor and interest of the Citizens of this Commonwealth obliges the Assembly to withhold their co-operation in the compleat fulfilment of the said treaty, until the success of the aforesaid remonstrance is known, or Congress shall signify their sentiments touching the premises.
Resolved, That so soon as reparation is made for the aforesaid infraction, or Congress shall judge it indispensably necessary, such Acts of the Legislature passed during the late War, as inhibit the recovery of british
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debts, ought to be repealed, and payment thereof made in such time and manner as shall consist with the exhausted situation of this Commonwealth. Extract from the Journal of Assembly.
John Beckley,
Clerk H. Ds.
Inasmuch therefore as laws of Virginia, existing in force after the peace, did inhibit the recovery of british debts, there can be no doubt, but that such inhibition was and is an infraction of the 4th Article of the Treaty. Whether that infraction was justifiable, or in other words, whether the reasons assigned for it in the preamble to those resolutions were good and sufficient, shall be considered under a distinct head.
As to the Bill said to have passed the Legislature of Virginia, in October, 1784, the Complainants admit that it never became a law, and therefore it is, and ought to be, entirely out of question.
North Carolina is classed with Virginia in such a manner as to infuse an idea of her having given occasion to similar complaints, but not a single charge being specified or stated against her, there is reason to presume that she had not given just cause for Complaint. Whether that is or is not in fact the case, your Secretary is uninformed, not having as yet been able to procure a Copy of the Acts of North Carolina.
Of South Carolina the list of grievances complains in strong and pointed terms. It takes particular notice of an Ordinance passed there the 26th March, 1784, vizt.
AN ORDINANCE RESPECTING SUITS FOR THE RECOVERY
OF DEBTS.
Be it ordained by the honourable the Senate and House of Representatives met in General Assembly, and
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by the authority of the same, That no Suit or Action shall be commenced either in equity or at law for the recovery of any debt or bond, note or account, contracted by a Citizen of this or any of the United States, previous to the 26th day of February, in the year of our Lord, 1782, until the first day of January next, after which time it shall and may be lawful to and for any person and all persons, to sue for and recover all interest which shall have accrued since the first day of January, 1780, on all Bonds, Notes, or other Contracts bearing interest; provided nevertheless, that nothing herein contained shall be construed to extend to prevent any Creditor from suing for and recovering all interest accruing upon bond or notes, since the 26th day of February, 1782.
And be it further Ordained by the authority aforesaid, That it shall and may be lawful for any person and all persons, to whom any debt shall be due as aforesaid, to sue for and recover after the first day of January, which will be in the year of our Lord, 1786, all such other interest as may be then due on such debt, and the fourth part of the principal debt which shall be owing to him, her or them; and from and after the first day of January, which will be in the year of our Lord, 1787, one other fourth part of the principal debt, with the interest which shall have accrued thereon; and from and after the first day of January, which will be in the year of our Lord, 1788, one other fourth part of the principal debt, with the interest which shall have accrued thereon; and from and after the first day of January, which will be in the year of our Lord, 1789, the balance which may be then due and owing: provided nevertheless, that if any person who shall be indebted as aforesaid, shall, after a notice of ten days, refuse to give security to
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his Creditor (which notice shall be proved by such Creditor on oath before any justice of the peace) for the payment of such sum or sums of money as may be due and owing to him, to be approved of by one of the Judges of the court of Common pleas, if in Charleston district, and by a Commissioner for taking special bail, if in any of the Circuit Court districts, that in such case it shall and may be lawful for the Creditor to sue for the said debt, and to proceed to execution, which execution may be levied, and the property so seized be sold, if the debtor shall refuse to give the security hereby required, and pay the Costs of suit.
And be it further Ordained by the authority aforesaid, That all moneys which shall be due on such open Accounts as are restrained by this Ordinance from being sued, shall bear an interest of seven per Cent. per Annum from the passing of this Ordinance.
And be it further Ordained by the authority aforesaid, That all Bonds or other Securities which have been given since the 26th day of February, in the year of our Lord, 1782, for debts contracted previous to that day, except Bonds or Notes which have been taken for interest due since that time, shall be, and the same are hereby declared to be no otherwise recoverable than other debts for which securities have not been given.
And be it further Ordained by the authority aforesaid, That no seizure shall be made of any property which may have been mortgaged previous to the 26th day of February, in the year of our Lord, 1782; provided the person whose property has been mortgaged shall pay the principal and interest of the debt for which the said property has been mortgaged at such periods as are required by this Ordinance; and on failure thereof the said mortgaged property may be taken and held by
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the person to whom the same has been so mortgaged, until the payment shall be made as aforesaid.
In the Senate house, the 26th day of March, in the year of our Lord, 1784, and in the eighth year of the Independence of the United States of America.
John Lloyd,
President of the Senate.
Hugh Rutledge,
Speaker of the House of Representatives.
The most cursory comparison of this Ordinance with the 4th Article of the treaty, will point out the direct opposition that exists between them.
The list of grievances also states with much particularity an Act of South Carolina, which it says was passed 12th October, 1785, and entitled "An Act for regulating sales under execution, and for other purposes therein mentioned," whereby a debtor during any period of a suit that has been or may be commenced, is allowed to tender land in payment of his debts, &c.
Your Secretary has not been able to procure a Copy of this Act. If the account given of it in the list of grievances be accurate, it certainly is a singular Act, and a plain violation of the 4th Article, which expressly stipulates for the recovery of the full value in sterling money of all bona fide debts, &c. In the same light must be viewed the pleas (if adjudged good ones) of former tenders in depreciated paper in bar of the demands of british Creditors.
The list of grievances in a summary manner charges Georgia with having passed laws and regulations similar to those in South Carolina, and with degrees of peculiar and manifest aggravation. But as none of these Laws or regulations are specified, and as your Secretary has
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not the Acts of Georgia, he cannot decide how far these Complaints against her are well founded or otherwise. It is much to be wished that the executive of each of the States could be prevailed upon, at the conclusion of every session, to transmit to Congress Copies of all the Acts passed by the Legislature during the course of it; or that Congress would be pleased to direct that such Copies be regularly purchased and sent to them at the public expense.
There are other matters mentioned in the list of grievances relative to the performance of the 4th Article, which merit some consideration. They may be comprised under two heads.
With respect to the first of these, your Secretary thinks the following observations are applicable to such cases, when and wherever arising.
Although popular reluctance and opposition to pay debts may, and probably does in some instances, retard and embarrass the recovery of them, yet while the course of Justice continues steadily to bear down that opposition, and to execute the laws with punctuality and decision, such vanquished opposition rather does honour than discredit to the government, and therefore however inconvenient any temporary commotions or improper combinations may have been, yet the vigorous and effectual interposition of Government must forever acquit it of blame.
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But if from the imbecility and relaxation, or from the connivance of government, it should so happen, that the ordinary course of Justice becomes and continues so obstructed as that foreigners, claiming the benefit of treaties with the United States, cannot avail themselves of rights secured to them by such treaties, then in his opinion the delinquent state cannot be without blame; for as every government is and must be presumed to have sufficient power and energy to exact from its own Citizens a compliance with their own Compacts and stipulations, a failure or omission to do it will naturally be imputed to the want of inclination, and not to the want of means. Whenever such Cases happen, they must excite the notice of Congress, to whom it appertains to see that national treaties be faithfully observed throughout the whole extent of their jurisdiction.
Your Secretary does not think himself warranted by any facts which have hitherto come to his knowledge, to apply these principles against any of the states; for although the list of grievances complains "that so great and general are the obstructions to the recovery of debts, that in several districts remote from Charleston, the Courts have been prevented, by tumultuous and riotous proceedings, from determining Actions of debt," yet it neither informs us whether this was a singular or a common case, nor whether the government did or did not interpose and re-establish good order. The presumption is, that the Government did what they ought to have done; and he thinks such must continue to be the presumption, until well authenticated facts shall declare it to be ill founded.
Your Secretary does not experience much difficulty in forming a judgment of what is right relative to the
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payments made into some of the State Treasuries, by debtors to british Creditors, in pursuance of certain State Acts requiring or authorizing the same.
From the principles stated in the preceding part of this report your Secretary infers, that the treaty of peace does consider the debts mentioned in the 4th Article as being exactly in their original state of obligation and extent, leaving the Contracts on which they depend, to be executed according to the tenor, true intent and meaning of them. If so, british Creditors have no sort of concern with any payments (made on account of the debts due to them) other than such as they either accepted, directed or approved; for in relation to the Creditor, all such payments are as if they had never been made, and he is justifiable in proceeding against his debtor accordingly. But between the debtor so paying into a State Treasury, and the State directing, inviting or authorizing him to do it, an account should be opened; and the state is, in your Secretary's opinion, bound in justice to repay him the then real value of such money as he so put into the treasury, together with lawful interest for the use of it.
But violations of the 4th Article are not the only ones alleged in the list of grievances. It expressly charges, that as little respect has in certain instances been paid to the 5th and 6th Articles. Of these in their Order.
The 5th Article is in these words: "It is agreed, that 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 possession of his Majesty's Arms,
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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 endeavours 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 respecting the premises, so as to render the said Acts or Laws 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 person who may now be 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 may 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."
The Complainants insist that South Carolina has violated this Article, and in the following instances, vizt.
1. That certain persons were permitted to go there to obtain the restitution of their rights and properties, and that the purposes for which they went were frustrated by a suspension of the Courts of Justice. That they were compelled to depart by a public notification from the Governor, after having been at considerable
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expense of time and money in a delusive pursuit. That during their stay they experienced great personal insult and abuse.
Who these persons were, may be conjectured from the purposes for which they went to South Carolina. They went to obtain the restitution of their rights and properties, and were probably of the number of those who were objects of a certain Act passed there the 26th February, 1782, entitled "An act for disposing of certain Estates, and banishing certain persons therein mentioned."
It should be remembered that this Act was passed during the war. An examination of it and of some subsequent Acts will tend to shew how far the complaint of these persons is well founded.
This Act divides the persons intended to be affected by it into Classes.
The first Class was composed of persons who were known to be Subjects of his britannick Majesty. Their Names are mentioned in a Schedule annexed to the Act, which is distinguished by list No. 1. No personal Offences are imputed to them, and National reasons are assigned for divesting them of their property real and personal, "debts excepted," for the use of the State.
The second Class was composed of persons who, owing allegiance to the State, refused to take an Oath professing the same.
The third Class consisted of persons who, owing allegiance to the State, had in 1779 taken up arms with the enemy, and having by proclamation been required by name to surrender themselves by a given time, did not obey. The Act divests them of their Estates, with
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exception however of such as had returned and borne arms in defence of the state, before the 27th of September, 1781.
The fourth Class (named in list No. 2.) had withdrawn themselves from their Allegiance, and congratulated the Enemy's Leaders on the reduction of Charleston.
The fifth Class (named in List No. 3.) had withdrawn from their Allegiance, and requested to be embodied and to be permitted to serve as royal Militia.
The sixth Class (named in List No. 4.) had, in violation of their duty to the State, and with Circumstances aggravating the impropriety of such conduct, congratulated Earl Cornwallis on his success, and gloried in the blood of their Countrymen shed by the enemy.
The seventh Class (named in List No. 5.) held, or had held Commissions in the Enemy's service, in defiance of an Act of the State declaring such Offences to be Capital.
The eighth Class (named in List No. 6.) had manifested their attachment to the british Government, and their inveteracy to the States.
The Act divested these seven last mentioned Classes of their Estates, and banished all those whose names are mentioned in Lists No. 2, 3, 4 and 5.
From this Act, compared with the case of the Complainants as stated by themselves, it may fairly be inferred that they are not british Subjects, for none of that character are banished by the Act.
During the course of the same session, vizt. 1782, an Act was passed entitled, "An Act for pardoning the persons therein described, on the conditions therein mentioned." The preamble is in these words: "Whereas many persons, Inhabitants of and owing Allegiance to this State, some of them having signed congratulatory Addresses to Sir Henry Clinton, and Mariot Aburthnot,
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Esquire, and to the Earl Cornwallis, on the successes of his britannick Majesty's Arms in this Country, and others having borne Commissions under the british government, are excepted by the Governor's proclamation, bearing date on or about the 27th September last, from pardon for those offences: And whereas some of the said persons have surrendered to the Justice, and submitted themselves to the mercy of their Country: And Whereas many persons who would have been entitled to the benefit of the said proclamation, had they returned to their Allegiance before the expiration of the time limited for the same, did neglect to surrender themselves, but have since the 17th day of December withdrawn from the enemy and borne Arms in defence of this State, and the Legislature moved with compassion, are willing to grant them pardon on conditions which may in some degree atone for those Offences."
The Act then proceeds to charge them with the payment (within six months) of ten per cent. on the Amount of their estates, and thereupon to grant a full pardon to them all, excepting only such as were or might be accused of counterfeiting money, plundering, robbery, Houseburning, Housebreaking, or Murder. It also pardons all such as had borne Arms with the enemy, and had come out since the 17th December, and who had no estates; it however bound them over to the next session, and required that they should either do nine months duty in the Militia, or enlist in the Continental service.
Although this merciful and humane Act comprehended a large number of persons, yet it seems that the Complainants were either not included in it, or have failed to comply with the terms it required.
On the 16th March, 1783, an Act was passed "To alter and amend the Act entitled an Act for disposing of
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certain estates and banishing certain persons therein mentioned."
This Act also bears strong marks of temper and humanity. The preamble recites "That whereas in and by the sixteenth section of the said Act it is enacted, that instead of inflicting Capital punishment on such persons, they should be, and they are thereby to be for ever banished from the said State: and if any of the said persons should remain in the said State forty days next after the passing of the said Act, or should return to this State, the Governor or Commander in Chief for the time being is thereby authorized and required to cause the personS remaining in, or returning to the State, to be apprehended and committed to Goal, there to remain without bail or Mainprize, until a convenient opportunity should offer of transporting the said person or persons from this state to some part of his britannick Majesty's dominions, which the Governour or Commander in Chief for the time being is thereby required to do: And if any of the said persons should return to this State after such transportation, then and in such case, he or they should be adjudged, and they are thereby declared to be guilty of felony, and should, upon Conviction of the Offence of having returned as aforesaid, suffer death without benefit of Clergy:"
"And Whereas notwithstanding the said Act, on the evacuation of the garrison at Charleston by the british forces, on the fourteenth day of December last past, many persons whose names are mentioned in the list annexed to the said Act, relying on the lenity of the American Government, and the mercy of their fellow Citizens, did remain and continue in Charleston, and have surrendered themselves to the custody of the sheriff of Charleston district, and have been confined by virtue
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of and in pursuance of the said recited act, in the common Goal of Charleston district:"
"And Whereas such persons have severally preferred their humble petitions to the Legislature of the said State, asserting their innocence of any of the Crimes imputed to them, and praying for a trial and full examination of their Conduct, which petitions have been received and are referred to proper Committees, by both houses of the Legislature: And Whereas it is considered unnecessary in such cases, to carry the said in part recited Act into a full and strict execution, with respect to the close imprisonment and sale of the effects of the said persons as aforesaid surrendering and submitting themselves. And the Legislature, with its accustomed lenity, hath resolved to admit bail for Such persons to be taken to enforce their appearance at a future day, when the merits of their petitions shall have been decided on."
The Act accordingly admits them to Bail, and suspends the further sale of their estates until their cases should be finally decided on. To this Act there is annexed, "A List of persons on the Confiscation Bill who have petitioned, and whose cases have been favorably determined in the Senate, and others who have been favorably reported on in the House of Representatives." This List contains above seventy names; the Complainants however seem not to have been of that description.
In the same session another good natured Act was passed, which among other things provided, "that the household furniture, plate, linen, wearing apparel, Carriages and Carriage horses, with such Negroes as were generally attendant upon the family of those
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persons who were described in the Confiscation Act, should be allowed to them."
Your Secretary takes notice of this Act because it indicates a degree of humanity in the Legislature which, considering the outrages committed in that State, is remarkable.
On the 17th March, 1783, an Ordinance was passed for disposing of the estates of certain persons, and for other purposes therein mentioned. It recites, "that many of the former Citizens of that State in violation of their allegiance had withdrawn themselves, and joined the enemy." It Confiscates the estates of such persons. It directs the Commanding Officers of the several Regiments of Militia to return the names of such persons to the Commissioners within three months. With great regard for justice and fairness, it permits such persons to return to the State within six months after the end of that session, to take their trial, and declares the Ordinance to be void as to such of them as should be acquitted.
If the Complainants were of the class mentioned in this Act, they either neglected the means it prescribes for them to manifest their innocence, or they faded in doing it.
On the 26th March, 1784, an Act was passed which in the opinion of your Secretary places the magnanimity and moderation of the State in so distinguished a point of light, that it ought to be inserted at large in this report.
"An Act for restoring to certain persons therein mentioned, their estates, both real and personal, and for permitting the said persons to return to this State, and for other purposes therein mentioned.
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Whereas by an Act entitled, "An Act for disposing of certain estates, and banishing certain persons therein mentioned," the estates of such persons were confiscated and forfeited to the use of this State: and Whereas the United States in Congress assembled have earnestly recommended to the several States to reconsider and revise their laws regarding Confiscation, so as to render the said laws perfectly consistent not only with justice and equity but with that spirit of conciliation which, on the returns of the blessings of peace, should universally prevail:
Be it enacted by the Honorable the Senate and House of Representatives in General Assembly met, and by the authority of the same, That all and every the estate and estates, both real and personal, of the several persons whose names are mentioned in the List No. 1, hereunto annexed, and which estates have not been sold by the Commissioners of forfeited estates, is, and are, and shall be, taken from and divested out of the Commissioners appointed by the said Act for disposing of the said estates, and from their Heirs; and every such estate is hereby restored to and revested in the several persons respectively mentioned in the said List No. 1, and to the Heirs of each and every of them, in the same manner, and for the same use and behoof as each and every of the said persons were seized or possessed of the same, before the passing of the said Act.
And be it further enacted by the authority aforesaid, That all and every of the said person and persons mentioned in the Lists No. 1, 2 and 3 be allowed and permitted to return to, and reside in this State, and every part, clause, matter and thing in the said Act contained, respecting the banishment of the said persons, and the disposal of their estates for the use of this State, except
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such parts thereof as have been sold by the Commissioners of forfeited estates, be and the same is hereby repealed.
Provided always, and be it further enacted by the authority aforesaid, That the persons named in the Lists No. 1 and 3, their Attorneys or Agents, where their estates have not been sold, should make a just and true return to the said Commissioners, on Oath or Affirmation, of all their estates real and personal, within four months next after the passing this Act, and that the said Commissioners shall cause an Assessment of twelve per Cent. to be rated on the just and real value of such estates, which Assessment shall be paid by the said persons to the said Commissioners in Specie, on or before the first day of March, 1785, and on their failing to do so, the said Commissioners shall cause such Assessment to be levied and paid into the Treasury, for the use of this State, and that the said Assessment shall be rated and levied in the mode prescribed by the amercement Act, with respect to the amercement thereby imposed; and where their estates have been sold, twelve per Cent. shall be deducted from the amount sales thereof, and that the Commissioners of confiscated estates shall be allowed a Commission of two pounds per Centum.
And be it further enacted by the authority aforesaid, That all and every estate and estates, both real and personal, of the several persons whose names are mentioned in the List No. 2 hereunto annexed, where the same is not yet sold, shall be taken from and divested out of the said Commissioners and their Heirs as aforesaid, and every such estate is hereby restored to, and revested in the several persons respectively mentioned in the said List No. 2, and to the Heirs of each and
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every of them, in as full and ample a manner as hath been extended to the persons and their Heirs comprehended in the List No. 1; and that all and every person and persons mentioned in the said List No. 2, be allowed and permitted to return to, and reside in this State; and that they or any of them shall not be liable or subject to any amercement whatsoever, and every part, Clause, matter and thing in the said Act contained, respecting the banishment of the said persons, and the disposal of their estates, where any such estate hath not and is not already sold by the Commissioners aforesaid, for the use of the State, be and the same is hereby repealed.
And be it further enacted by the authority aforesaid, That in all and every case wherein the estate of any of the said persons hath been sold by the said Commissioners, and the purchaser shall be unwilling to give up the purchase to such original proprietor, then it shall and may be lawful for the Commissioners of the treasury or the Commissioners of forfeited estates, and they are hereby authorized and required, to pay on demand to every person respectively, in the said Lists No. 1, 2 and 3 comprehended, all such Indents and Specie as they the said Treasurers or Commissioners have or may receive from the said purchasers. And in all and every case, where such purchaser shall agree to give up his purchase to any original proprietor in the said three lists comprehended, (which proprietor shall be obliged to accept the said relinquishment) then in that case the Commissioners of the treasury and the Commissioners of forfeited estates, as the case may be, are hereby authorized and required to give up and restore to every such purchaser his bond and other security given for the purchase: provided always, that all and every person
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in the said Lists No. 1, 2 and 3 comprehended, shall be liable and subject to pay all Commissions and Charges which may be due to the Commissioners of forfeited estates, or others acting under their authority. And in any instance where the Negroes or other property of any person hereby subject or liable to amercement hath been sold or taken, or moneys have been received by virtue of any law or publick authority of this State, the price for which such Negroes were sold, and the value of such other property and money received as aforesaid, shall be allowed in discount of their amercement respectively.
And be it further enacted by the authority aforesaid, That the several persons whose names are contained on the List No. 3, and all such on the List No. 1, who held military Commissions at any time during the war, be disqualified from being elected Governor, Lieutenant Governor, Member of the privy Council, or of either branch of the Legislature, or of holding any Office or place of trust within, or under the authority of this State, for and during the term of seven years.
And Whereas several persons have applied to the Legislature to be relieved from the penalties of an Act entitled "An Act for amercing certain persons therein "mentioned," whose petitions are referred to a Committee of each branch of the Legislature:
Be it therefore enacted by the authority aforesaid, That as much of the said Act as respects the several persons favourably reported on in either House, shall be, and the same is hereby repealed. And that the operation of the said Act shall be suspended as to the remainder of the said persons therein mentioned, until the end of the next meeting and sitting of the Legislature.
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And be it further enacted by the authority aforesaid, That Nathaniel Russell, William Roach, James Wright, Peter Prow and Andrew Keigler, be, and they are hereby exempted from all the pains, penalties and forfeitures of an Ordinance of the General Assembly, passed the 17th day of March, 1783, entitled "An Ordinance for the disposal of the estates of certain persons, subjects and adherents of the british Government, and for other purposes therein mentioned."
In the same spirit of humanity the Legislature afterwards, to wit, the 19th March, 1785, passed a benevolent act, entitled, "An Act to afford a maintenance to the persons therein mentioned," and is as follows, vizt.
Whereas it is but consistent with justice and humanity, that a suitable maintenance should be made to the Widows and Orphans of the following persons, whose whole estates are under confiscation:
Be it therefore enacted by the honourable the Senate and House of Representatives now met and sitting in General Assembly, and by the authority of the same, That the plantation or tract of land on Reaburn's Creek, containing two hundred Acres, late the property of Andrew Cunningham, whereon he formerly lived, and not sold by the Commissioners of forfeited estates, shall be and the same is hereby vested in Margaret Cunningham (Relict of the said Andrew Cunningham) and her children by the said Andrew Cunningham, now alive, their Heirs and Assigns forever.
Be it enacted by the authority aforesaid, That all those two plantations or tracts of Land, situate in the Neighbourhood of Ninety Six, late the property of Culbert Anderson, containing in the whole four hundred and forty one acres, and which were sold to Captain Richard Pollard, in July, 1783, but the terms of sale not
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complied with, shall be and the same are hereby vested in Mary Anderson (Relict of the said Culbert Anderson) and her children by the said Culbert Anderson, now alive, their Heirs and Assigns for ever; she paying the Surveyor's fees, and contingent charges on the Sale.
Be it enacted by the authority aforesaid, That those two tenements or lots of land, late the property of Edward Oats, situate in Colleton-Square, the one seventy five feet front, and one hundred feet deep, the other thirty feet front and seventy-five feet deep, with eleven Acres of land, more or less, on Daniel's Island, shall be and the same are hereby vested in Elizabeth Oats (widow and relict of the said Edward Oats) and her Children by the said Edward Oats, their Heirs and Assigns for ever; she paying the expenses and contingent charges on the sale.
Be it enacted by the authority Moresaid, That five hundred acres of any lands, late the property of William Guest, not sold by the Commissioners of forfeited estates, that Sarah Guest, wife of the said William Guest, shall choose, shall be and the same is hereby vested in the said Sarah Guest and her Children by the said William Guest, their Heirs and Assigns for ever.
And be it further enacted by the authority aforesaid, That all personal property under Confiscation, not disposed of for public purposes, lately belonging to the said Andrew Cunningham, Culbert Anderson, William Guest and Edward Oats, shall be and the same is hereby restored to and vested in the said Margaret Cunningham, Mary Anderson, Sarah Guest and Elizabeth Oats, respectively, and their respective Children: provided always, that each estate or parts of estate so restored by this Act, shall be subject to the payment of
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all just and bona fide debts that may be against such estate.
In the Senate house, the 19th day of March, A.D. 1785, and in the ninth year of the Independence of the United States of America.
John Lloyd,
President of the Senate.
John Fauchereaud Grimke,
Speaker of the House of Representatives.
On the 24th March, 1785, an Act was passed whereby the estate which had been confiscated of Edward Fenwick was restored to, and revested in him, and he permitted to remain twelve months in the State.
From these several Acts it is apparent, that although much severity was naturally to be expected, and would have been excusable in South Carolina, considering the manner in which she had been treated, yet great regard to justice, and an uncommon degree of benevolence, humanity and mercy, has marked her conduct towards her offending Citizens. How it happened that the Complainants have not experienced the good effects of this continued prevailing disposition, cannot easily be accounted for on any principles reputable to their Characters.
They seem to have forgotten that the 5th Article of the treaty (the last Clause only excepted which has no relation to their Complaint) contains no other stipulation than that Congress should recommend the several matters therein stipulated. Congress accordingly recommended them; and South Carolina complied with those recommendations to a great extent. That State was at liberty to comply or not to comply in the whole or in part; she has shewn much mercy, and is not responsible
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for not shewing more. In that State as in some others, there doubtless were some Citizens to whom more mercy than they have received would have been injustice. Who the complainants are, or what may be their Character, or particular Cases, does not appear from the list of Grievances, nor has your Secretary any information respecting them. They had permission, it seems, to go to Charleston. That was a matter of favour, not of right. After a certain time they were ordered to depart. All this may be true, and yet the treaty remain unviolated.
They say the purposes of their going there were frustrated by a suspension of the Courts of Justice; if so, it evident that their business was not with the Legislative but with the courts; and business with the latter for the restitution or recovery of rights and property may as well be transacted by Attorney as in person.
If after coming there they were insulted and abused, the persons who treated them in that manner acted improperly; but insults and abuses are often of a kind of which the law takes no notice; and it is probable that those in question were of that kind, for the Complainants do not allege the contrary, nor do they in that respect impute any blame to the Government, which they would doubtless have done, if there had been room for it.
2. That several british Merchants, while Charleston was in possession of his Majesty's troops, accepted in payment of debts, houses and Lands, which on the 4th of July, 1776, were the property of persons, whose estates were confiscated by an Act passed 26th February, 1782, but which retrospected to the 4th July, 1776.
That these Lands which since July, 1776, had been often transferred and actually belonged to british Merchants when the Act passed, were afterwards, vizt. in
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June, 1784, sold by the Commissioners of Confiscated estates, without any regard to the Claims of these merchants founded on the 5th and 6th Articles of the Treaty.
Under this head the first question that presents itself is, whether, or how far it was right that the Act of the 26th February, 1782, should retrospect to 4th July, 1776.
This question may be discussed with more perspicuity by distinguishing between the british Subjects, and the offending Citizens who were the Objects of this Act.
The first violated no allegiance to the State, for they owed none. The Act imputes no particular Offences to them, but assigns general and National reasons for confiscating their property.
On the 4th July, 1776, all british Subjects became Aliens to the United States; thenceforth to the end of the War they were not only Aliens, but Alien enemies; as such they were during that period under legal disabilities, either to acquire or convey lands in this Country. On these principles therefore it was right and just that the act should consider all those lands to be still the lands of the british Subjects in question, of which they were Proprietors on the 4th July, 1776.
The next inquiry is, Whether the like retrospect in the Cases of offending Citizens was justifiable?
On this point your secretary thinks it not improper to observe, that if it shall appear that the Complainants are not interested in nor affected by such retrospect, that then it is a matter which they being Foreigners have no right to meddle with, nor to complain of.
By their own shewing it appears, that the Complainants are and were british Merchants, that is british Subjects, who during the War, when they were alien enemies, accepted grants of lands lying in this Country in payment of debts. No point is more indisputable or
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more clearly established, both by the law of this Country and of England, than that Alienation of land to an Alien operates a forfeiture of it to the Sovereign; and if such be the law respecting Alien friends, with how much greater force does it apply to the Case of Alien Enemies? It follows then that the british Merchants in question, not being capable of purchasing and holding lands in this Country, nothing passed to them by the said Grants from their debtors; and if they thereby acquired no right or title to the Lands in Contemplation, they can with no propriety complain of or reprehend the Legislature of South Carolina for passing that or any other law respecting those lands.
As your Secretary considers this reasoning as being conclusive, he thinks it unnecessary to swell this report by any further remarks on the retrospect in this Act.
There remains but one further question on this head, vizt. Whether the 5th or the 6th Articles of the treaty contain any thing to validate the titles which these british Merchants claim to have to these lands?
By the 5th Article "It is agreed that all persons who may 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."
The obvious meaning of which is, that all fair lawful Contracts touching land, to which the parties were at the time competent, shall continue in full force and be executed in favour of innocent persons claiming the benefit thereof, notwithstanding the said lands may have been confiscated. The Article clearly relates to Grants or Contracts which at the time they were made were valid, and not to grants or contracts which at the time they were made conveyed no rights to the Grantees
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or Contractees. The Article expressly removes impediments to the prosecution of just or legal rights, and that idea excludes the supposition of its meaning to confer validity to Claims not warranted by law, or to create rights which at no prior period had even existence.
If therefore these british Merchants never had nor could have title to or interest in these lands by any grants made during the war and subsequent to July, 1776, your Secretary cannot perceive the most distant reason for blaming the conduct of the Commissioners in paying no respect to such fruitless grants.
As to the 6th Article, it gives no Colour to the complaint. It provides,
The Confiscation in question was prior and not future to the treaty.
The sale of lands long before vested in the State by Confiscation, can with no more propriety be called a Commencement of a prosecution, than the leasing, or tilling, or fencing it can be.
If there was any loss in the present Case, it arose from the Confiscation that took place during the war, which, being in point of time before the treaty, cannot be easily construed to have been posterior or future to it.
Thus your Secretary has considered this complaint as resting on the facts and principles stated and assumed by the Complainants, and he presumes that nothing
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further need be added to manifest its futility. He cannot however dismiss it, without remarking the want of Candour observable in the statement of this Complaint.
This Complaint gives the reader to understand that the Act retrospected generally, and confiscated without exception of Cases, the lands which the persons, who were the objects of it, possessed on the 4th July, 1776. The fact is otherwise, for that very Act contains the following Clause, vizt.
"And be it further enacted by the authority aforesaid, that all real and personal property, of which the persons named in the said lists were possessed, either by themselves or Agents, on the 4th July, 1776, or at any time between that day and the 12th May, 1780, shall be held and deemed to be still theirs, unless the same was really and bona fide sold, and conveyed for a valuable consideration of money paid or secured to be paid, and actual possession given to the purchaser before the said 12th May, without any secret trust or condition, and not with a view of eluding a forfeiture."
On the 16th March, 1783, an act was passed for amending the Confiscation Act, and in it there is a Clause which enacts "That where purchases have been made of the property of the banished persons, before the passing of the confiscation Act, by persons who were then Citizens of this, or of the United States, and where such purchases have been actually paid for, or only part of the purchase money paid, such persons shall still retain the property so purchased; provided the same was made for a valuable Consideration of money to be paid without collusion, or fraud, &c."
The fact then really is, that the retrospect in question was so narrowed and limited, as to become perfectly consistent not only with strict law and justice, but
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with the more delicate principles of equity and good conscience.
Lest an idea should be imbibed from this Complaint that bona fide Creditors lost their debts by this Act of Confiscation, it may be well to refer those who may not be well informed on the subject to the first enacting clause of the last mentioned Act, which provides, "that the estates of the persons mentioned on the List No. one, specified in the said Act, of those who left this Country upon refusing to take the Oath of Allegiance, and also those who withdrew from their Allegiance, and went over to, and took up Arms with, the enemy in the year of our Lord, 1779, shall be respectively liable to discharge the debts due by them, as the estates of those persons who are mentioned on the List, Numbers two, three, four, five and six." It further provides, that such debts "when examined and certified by the Auditor General, shall be allowed in purchase of any confiscated property, where the estates against which the debts shall be so certified are fully and clearly equal to the demands upon them; or, at the option of such Creditors, they shall be paid proportionately out of the annual interest arising on the bonds given for the purchase of confiscated estates." The Act directs such demands to be brought in and liquidated by the 20th July next; but by a posterior Act, passed 26th March, 1784, the term was extended to 26th March, 1785.
The List of grievances also contains a singular Complaint respecting certain Adjudications in Charleston; for it is not suggested that any Act of the Legislature had been passed on the subject, viz.
"That the decisions of the board of police, established under the King's Government in Charleston, however equitable, have been set aside since the peace. British
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Subjects have been deprived of their property purchased under its process, and east in excessive damages and Costs, for no other cause than having brought Actions therein for the recovery of debts, even where the Defendant had confessed judgment, and when both Plaintiff and defendant were british Subjects."
If the Complainants had particularized any one of these Cases, by stating the nature of the cause, the names of the parties, and by what Court and when it was tried and adjudged, more respect would have been due to their representation than it seems to merit in its present form. Why these important particulars were omitted can only be conjectured.
Your Secretary has no other information respecting these extraordinary facts than what he derives from the list of grievances. To him, however, it appears sufficient to observe, that the laws of Nations afford an answer to this complaint, which ought, in the present state of it to be satisfactory, vizt. "As the Administration of Justice necessarily requires that every definitive Sentence, regularly pronounced, be esteemed just, and executed as such, as soon as a Cause in which Foreigners find themselves interested has been decided in form, the Sovereign of the Defendant cannot hear their Complaints. To undertake to examine the justice of a definitive sentence, is to attack the Jurisdiction of him who has passed it. The Prince ought not then to interfere in the Causes of his Subjects in foreign Countries, and to grant them his protection, excepting in the cases of a refusal of justice, palpable and evident injustice, a manifest violation of rules and form, or an odious distinction made to the prejudice of his Subjects, or of Foreigners in general."
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Your Secretary having considered several matters alleged against South Carolina as violations of the sixth Article, will now proceed to examine the remaining complaints of the like kind against New York; for South Carolina and New York are the only States against whom such complaints are made.
It should be remembered that this Article contains five express and positive stipulations, vizt.
It is charged that the State of New York has violated this Article; for that by an Act "passed the 17th March, 1783, and confirmed by others in 1784 and 1785, those Americans who had abandoned their possessions in New York, upon its Capture by the british troops, and resided without the lines during the war, are enabled to bring Actions of trespass for rent, &c. during their absence, against persons who had occupied their premises, whether under the authority or permission of the British Commander or otherwise, and who by this Act are precluded from pleading any Military Order whatsoever in justification of their occupancy. It also authorizes the sequestration of the estates of british Subjects lying in that Country for their Conduct during the War."
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This charge (the last Article excepted) is not without foundation, as will appear from a perusal of this extraordinary Act. It is as follows:
An Act for granting a more effectual relief in cases of certain trespass. Passed 17th March, 1783.
Be it enacted by the people of the State of New York, represented in Senate and Assembly, and it is hereby enacted by the authority of the same, That it shall and may be lawful for any person or persons, who are or were Inhabitants of this State, and who, by reason of the invasion of the enemy, left his, her or their place or places of abode, and who have not voluntarily put themselves respectively into the power of the enemy, since they respectively left their places of abode, his, her or their Heirs, Executors or Administrators, to bring an action of trespass against any person or persons who may have occupied, injured or destroyed his, her or their estate, either real or personal, within the power of the enemy, or against any person or persons, who shall have purchased or received any such goods or effects, or against his, her or their Heirs, Executors or Administrators, in any Court of record within this State, having cognizance of the same; in which Action, if the same shall be brought against the person or persons who have occupied, injured or destroyed, or purchased or received such real or personal estate as aforesaid, the Defendant or Defendants shall be held to Bail; and if any such Action shall be brought in any inferiour Court within this state, the same shall be finally determined in such court, and every such Action shall be considered as a transitory Action. That no Defendant or Defendants shall be admitted to plead, in justification, any military Order or Command whatever, of the enemy, for such occupancy,
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injury, destruction, purchase or receipt, nor to give the same in evidence on the general issue.
Your Secretary has reason to believe that this is the first and only Act of the kind that ever was passed by any Legislature or Sovereign. Neither the laws nor the practice of Nations (as far as your Secretary has knowledge of them) afford any countenance or Colour to an opinion that after a war has been terminated by a treaty of peace solemnly made and ratified, either of the late belligerent powers or their respective Citizens have a right to commence and prosecute actions at law against the Soldiers, Subjects or Adherents of the other for damages by them done during the war, and in the course of invasions and hostilities by military Order. Such an opinion appears to your Secretary to be so destitute of even resemblance to reason, that a particular exposition of its demerits would be an unnecessary, and therefore an improper application of time and attention. In a word, this Act is, in his opinion, a direct violation of the treaty of peace, as well as of the acknowledged Laws of Nations. But it is not true that this act does "authorize the sequestration of the estates of british Subjects lying in this Country for their conduct during the War," as the list of grievances very improperly asserts.
It is said that this Act was confirmed by others in 1784 and 1785, but they are not described either by their titles or Contents.
Your Secretary finds one passed the 12th May, 1784, entitled "An Act to preserve the freedom and independence of this State, and for other purposes therein mentioned," which in his opinion is very exceptionable. It is as follows:
Whereas it is of great importance to the safety of a free Government, that persons holding principles inimical
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to the constitution should not be admitted into Offices or places of trust, whereby they might acquire an immediate influence in the direction of its Councils: And Whereas some of the Citizens of this State, entertaining sentiments hostile to its independence, have taken an active part in the late War, in opposition to the present government, and it would be improper and dangerous that such persons should be suffered to hold or enjoy any such office or place or trust within this State: And Whereas it is the duty of the Legislature to pursue every reasonable and proper measure to secure the government from being disturbed and endangered:
Be it therefore enacted by the people of the State of New York, represented in Senate and Assembly, and it is hereby enacted by the authority of the same, That all and every person or persons, Natives or others, who being resident in this State, or any other of the United States, on the Ninth day of July, in the year of our Lord 1776, and who have at any time since the said ninth day of July, in the year of our Lord 1776, accepted, received, held or exercised any Military Commission or Commissions whatsoever, by or under any authority derived from the King of Great Britain; and every person or persons who being resident within this State, or any other of the United States as aforesaid, on the ninth day of July, 1776, aforesaid, who have owned or fitted out, or have been concerned in fitting out any privateer or privateers, or Vessels of War, to cruise against or commit Hostilities upon the vessels, property and persons of any of the Citizens of the United States, or against their Allies; and every person or persons whatsoever, who being resident in this State, or any other of the said United States, on the 9th day of July, in the year of our Lord, 1776, aforesaid, who
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have served on board such privateers or Vessels of War, in the condition or Capacity of Captain, Lieutenant or Master; and also every person or persons who being resident in this State, or any other of the United States, on the ninth day of July, 1776, aforesaid, and who since that time have accepted, held or exercised any Office, Commission or appointment, in the board or boards of police, instituted and established in the Southern district of this State during the late war, by virtue of, and under authority derived from the King of Great Britain; and also every person or persons whatsoever, who being resident in this State, or any other of the United States, on the 9th day of July, in the year 1776, aforesaid, and who since that time have accepted, received, held or exercised any Office, Commission or Appointment whatsoever, in the Court of Admiralty instituted and established in the Southern district of this State, during the late War, by virtue of authority derived from the King of Great Britain as aforesaid; and also all and every person or persons whatsoever, who being resident in any of the United States, except this State, on the ninth day of July, 1776, aforesaid, and who at any time since that day and during the late war, have fled or removed from such of the said States, of which such person or persons were respectively resident on the ninth day of July aforesaid, and who have gone over to, joined, or put himself or themselves under the power and protection of the fleet or armies of the King of Great Britain aforesaid; and all and every person and persons who being resident in this State on the 9th day of July, 1776, aforesaid, and who since that day have voluntarily gone over to, remained with, or joined the fleets and Armies of the king of Great Britain aforesaid, at any time during the
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late war, who has or have left this State on or before the 10th day of December, in the year of our Lord, 1783, and who have not returned, and who shall hereafter be found within this State; such person or persons so found, shall be, on conviction thereof, adjudged guilty of Misprision of Treason.
Provided always, that nothing in this Act contained shall be taken or deemed to affect any person who at the time of committing any of the offences aforesaid, was a Minor under sixteen years of age, or a person insane.
And provided also, that it shall and may be lawful for any such person or persons, whose estates respectively may be attached by any law of this State, and advertisement made thereof agreeable to such law, to come and remain within this State for so long a tune as may be absolutely necessary to defend his, her or their suit; any thing in this Act to the contrary thereof in any wise notwithstanding.
And be it further enacted by the authority aforesaid, That all and every person or persons falling under any of the descriptions herein beforementioned, and the descriptions mentioned in the twelfth section of the Act entitled, "An Act to regulate elections within this state," passed the 27th day of March, 1778, and who has or have not left this state, are hereby for ever disqualified and rendered incapable of holding, exercising or enjoying any legislative, judicial or executive Office or place whatsoever within this State, and shall and hereby is and are for ever disqualified and incapacitated to elect or vote, either by ballot or viva voce, at any election to fill any Office or place whatsoever, within this State; and if any person shall offer himself as an Elector, at any election hereafter to be holden for an Office or place within this State, and shall be suspected
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of, or charged to be within any of the descriptions aforesaid, it shall be lawful for the Inspectors or Superintendants (as the case may be) to inquire into and determine the fact whereof such person shall be suspected, or wherewith he shall be charged as the cause of disqualification aforesaid, on the Oath of one or more Witness or Witnesses, or on the oath of the party so suspected or charged, at their discretion; and if such fact shall, in the judgment of the Inspectors or Superintendants, be established, it shall be lawful for them, and they are hereby required to reject the vote of such persons at such Election.
Provided always, that if it shall appear to the satisfaction of the Inspectors or Superintendants at any election, that any person offering himself as an elector, has during the late War, within the Southern District, by fear or compulsion, accepted, held or exercised any such Office, Commission or Appointment, or may have involuntarily done any Act or Acts which by the said section would have disqualified him from holding any Office, or from being an elector, had the same been voluntarily done, and that such person otherwise has uniformly behaved as a friend to the freedom and independence of the United States, the Inspectors shall admit such person to give his vote at any such election, any thing in this Act to the contrary notwithstanding.
Whereas a very respectable number of Citizens of this State, well attached to the freedom and independence thereof, have entreated the legislature to extend mercy to persons hereinafter mentioned, and to restore them to their Country:
Be it therefore enacted by the authority aforesaid, That Gysbert Marselius, Henry Staats, John Stevenson, Henry Vandyck, John Vanallen, Henry Vanschaack,
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David Vanschaack, Harman Pruyn, William Rea, Myndert Viele, William Lupton, Cadwallader Colden, Walter Dubois, Cornelius Luyster, Andrew Graham, John Thurman, Samuel Fowler, Joseph Mabbit, John Green, Dirck Vanvlect, Jost Garrison, John Booth, Rolef Etting, Solomon Etting, Richard Harrison, James Smith and Benjamin Lapham, shall be, and every of them are hereby permitted to return to, and reside within this State, without any molestation, and therein to remain until the end of the next meeting of the Legislature, or until further legislative provision shall be made in the premises, any thing in the Act entitled, "An Act more effectually to prevent the mischiefs arising from the influence and example of persons of equivocal and suspected Characters in this State," passed the 30th day of June, 1778, to the contrary thereof in any wise notwithstanding.
This intemperate Act was passed after the treaty had been ratified by both Nations, and most clearly violates the 6th Article in various respects too obvious and decided to require enumeration or discussion.
Your Secretary has reason to believe that there axe some other Acts not particularized in the list of Grievances, which, on being compared with the treaty, would appear in some respects inconsistent with it; but as the principles applied by this report to the other Acts, will also apply to all of the like kind, he thinks the investigation may here be concluded with propriety.
From the aforegoing review of the several Acts complained of, it is manifest, that the 4th and 6th Articles of the treaty have been violated by certain of them.
The next inquiry in order seems to be, Whether these violations can be justified or excused by any prior ones on the part of Britain?
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There is no doubt but that Britain has violated the 7th Article, which provides "that his Britannic Majesty shall with all convenient speed, and without causing any destruction, or carrying away any Negroes, or other property of the American Inhabitants, withdraw all his Armies, garrisons and fleets from the said United States, and from every post, place and harbour within the same."
The Violations of this Article alluded to, are these, vizt.
With respect to the Negroes, it may be proper to distinguish them into three Classes.
The stipulation, "not to carry away any Negroes or other property of the American Inhabitants," cannot in the opinion of your Secretary be construed to extend to, and comprehend the first Class. By the laws of war all goods and Chattels captured and made booty flagrante Bello, become the property of the Captors. Whether men can be so degraded as under any circumstances to be with propriety denominated Goods and Chattels, and under that idea capable of becoming booty, is a question
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on which opinions are unfortunately various, even in Countries professing Christianity and respect for the rights of mankind. Certain it is that our Laws assert, and Britain by this Article as well as by her practice admits, that Man may have property in Man. If so, it is fair reasoning to conclude that this like other moveable property is capable of changing Owners by capture in War. The Article places "Negroes and other property of the American Inhabitants" on the same footing; so that if it means that Captured Negroes shall not be carried away, it must also mean that no other captured property shall be carried away, which would in other words amount to an agreement that the british fleet and Army should leave behind all the booty then in this Country, which they had taken from the American Inhabitants at any period of the War. It would be a task beyond the abilities of your Secretary to raise such a construction of the Article on any principles capable of supporting it.
As to the Second Class, to wit, such as belonged to and remained with American Inhabitants within the british lines, they seem clearly to be within the design and meaning of the Article; for as the enemy had never taken them from their Masters, nor treated them as booty, the property remained unchanged; and the like reasoning applies to all other Negroes kept as Slaves within their lines, and respecting whom the enemy had done no Act which divested their Masters of the property.
Your Secretary also thinks that the third Class are clearly comprehended in the Article, and for the same reason, Vizt. because they still remained as much as ever the property of their Masters. They could not by merely flying or eloping extinguish the right or title of
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their Masters; nor was that title destroyed by their coming into the enemy's possession, for they were received, not taken by the enemy; they were received not as Slaves but as friends and freemen; by no Act, therefore, either of their own or of their friends, was the right of their Masters taken away; so that being the property of American Inhabitants, it was an infraction of the 7th Article of the treaty to carry them away.
Whenever the conduct of Nations or of Individuals becomes the subject of investigation, truth and candor should direct the enquiry. The circumstances under which these last mentioned Negroes were carried away make a strong impression on the mind of your Secretary, and place that transaction before him in a point of view less unfavourable to Britain than it appears in to his Countrymen in general. He is aware he is about to say unpopular things; but higher motives than personal considerations press him to proceed.
If a War should take place between France and Algiers; and in the course of it France should invite the American Slaves there to run away from their Masters, and actually receive and protect them in their Camp, what would Congress, and indeed the world, think and say of France, if, on making peace with Algiers, she should give up those American Slaves to their former Algerine Masters? Is there any other difference between the two cases than this, Vizt. that the American Slaves at Algiers are white people, whereas the African Slaves at New York were Black people?
It may be said that these remarks are made out of season; for whether they be well or ill founded, the fact is, that Britain expressly agreed to give them up, and therefore ought to have done it.
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How far an obligation to do wrong may, consistent with morality, be so modified in the execution as to avoid doing injury, and yet do essential justice, merits Consideration. By this agreement Britain bound herself to do great wrong to these Slaves; and yet by not executing it she would do great wrong to their Masters. This was a painful dilemma; for, as on the one hand, she had invited, tempted and assisted these Slaves to escape from their Masters, and on escaping had received and protected them, it would have been cruelly perfidious to have afterwards delivered them up to their former bondage, and to the severities to which such Slaves are usually subjected; so on the other hand, after contracting to leave these Slaves to their Masters, then to refuse to execute that Contract, and in the face of it to carry them away, would have been highly inconsistent with justice and good faith. But one way appears to your Secretary in which Britain could extricate herself from these embarrassments, that was, to keep faith with the Slaves by carrying them away, and to do substantial justice to their Masters by paying them the value of those Slaves. In this way neither could have just cause to complain; for although no price can compensate a Man for bondage for life, yet every Master may be compensated for a runaway Slave.
In the opinion therefore of your Secretary, Great Britain ought to stand excused for having carried away these Slaves, provided she pays the full value of them; and on this he thinks the United States may with great propriety and justice insist. Indeed there is an intimation in one of Mr. Adams's Letters, that the British Minister did not object to it.
But however capable of palliation the conduct of Britain respecting these Negroes may be, it unquestionably was an infraction of the 7th Article.
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It is equally clear, that her continuing to hold the posts from which by that Article she agreed to withdraw her Garrisons, is also a decided violation of the Treaty.
It appears, then, that there are violations of the Treaty justly chargeable on both parties; but as the present inquiry is, whether our violations can be justified by antecedent ones on the part of Britain, their respective dates must be ascertained.
It is but just to observe, that Britain withdrew her fleet and Army from New York before the treaty was ratified. She evacuated that place on the 25th November, 1783; and it was not until the next year that the treaty was ratified.
The first violation that (to the knowledge of your Secretary) we complain of, happened when the British forces left New York; for they then carried away with them the Negroes in question; so that the first violation on the part of Britain was on the 25th November, 1783.
The famous trespass Act of New York was passed 17th March, 1783, and is still in force.
The Act of Pensylvania, which impeded the recovery of british debts, was passed 12th March, 1783.
The Ordinance of South Carolina for disposing of certain estates, &c. was passed 17th March, 1783.
All these acts were in force on and long after the day of the date of the treaty, Vizt. 3d September, 1783.
In whatever light, therefore, deviations from the Treaty prior to its final conclusion and ratification may be viewed, it is certain that deviations on our part preceded any on the part of Britain; and therefore instead of being justified by them, afford excuse to them.
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As to the detention of our posts, your Secretary thinks that Britain was not bound to surrender them until we had ratified the treaty. Congress ratified it 14th January, 1784, and Britain on the 9th April following. From that time to this, the 4th and 6th Articles of the treaty have been constantly violated on our part by legislative Acts then and still existing and operating.
Under such circumstances, it is not a matter of surprize to your Secretary that the posts are detained; nor in his opinion would Britain be to blame in continuing to hold them until America shall cease to impede her enjoying every essential right secured to her, and her people and Adherents, by the treaty.
Your Secretary has heard another reason or excuse assigned to justify deviating from the 4th Article, and restraining british Creditors in the recovery of their debts, Vizt. that by giving time to the Debtor, he became more able to pay the debt; and as that additional ability was a benefit to the Creditor, the latter ought not to complain of the restraint which produced it.
Although this argument may be somewhat ingenious, it unfortunately proves too much. By the treaty a british Creditor has a right to sue when he pleases; and by the common law a Farmer has a right to plough when he pleases, a Merchant to send out his vessels when he pleases, and every man to eat and drink when he pleases.
Admit that a british Creditor would do better to delay his Suits, that a Farmer was about to plough in an improper manner or season, that a Merchant had ordered his Vessels to sea when a hurricane was expected, or that a certain gentleman injured his health by intemperance; admit these facts; would it thence follow, that
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every or any good natured officious man, who might think himself more judicious and prudent, has a right to hinder the Creditor from Suing, the Farmer from ploughing, the Merchant from despatching his Vessels, or the bonvivant from indulging his Appetite? Surely not.
In short, as your Secretary is uninformed of any facts or matters that can justify the violations on our part, the only question which seems to remain to be considered is,
What is to be done?
The United States in Congress assembled have neither committed, nor approved, of any violation of the treaty. To their conduct no exceptions are taken; but to their justice an appeal is made relative to the conduct of particular States. The United States must, however, eventually answer for the conduct of their respective Members; and for that, and other reasons suggested by the nature of their Sovereignty and the Articles of Confederation, your Secretary thinks they have good right to insist and require that National faith and National treaties be kept and observed throughout the Union; for otherwise it would be in the power of a particular State, by injuries and infractions of treaties, to involve the whole Confederacy in difficulties and War.
In his opinion it would highly become the dignity of the United States to act on such occasions with the most scrupulous regard to justice and Candor towards the injured Nation, and with equal moderation and decision towards the delinquent State or States.
In the present case he thinks it would be proper to resolve,
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Clause of it; nor for restraining, limiting or in any manner impeding, retarding or counteracting the operation or execution of the same; for that on being constitutionally made, ratified and published, they become, in virtue of the Confederation, part of the law of the land, and are not only independent of the will and power of such Legislatures, but also binding and obligatory on them.
The two first of these proposed resolutions do not appear to your Secretary to require any Comments. He thinks the third would be expedient for several reasons:
As it is general, and points at no particular State, it cannot wound the feelings of any.
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The general Law it recommends he thinks preferable to a minute enumeration of the exceptionable Acts and Clauses, because either omissions might accidentally be made in the enumeration, or questions might be agitated, and perhaps improperly determined, respecting this or that Act or Clause which some may think exceptionable, and others not. By repealing in general terms, and obliterating all exceptionable Acts and Clauses as it were by one stroke of the pen, the whole business will be turned over to its proper department, viz. to the judicial; and the Courts of law will find no difficulty in deciding whether any particular Act or Clause is or is not repugnant to the treaty. When it is considered that the Judges in general are Men of Character and learning, that they stand in responsible situations, and feel as well as know the obligations of Office and the value of reputation, there is reason to presume that their conduct and judgments relative to these as well as other judicial matters will be wise and upright.
Your Secretary also thinks, that in case these resolutions should be adopted, it would be proper that a circular letter from Congress should accompany Copies of them to the States; but as the forming a draft or plan of such a Letter, seems not to belong to the department of foreign Affairs, he forbears to report one.
He is further of opinion, that a Copy of this report should be transmitted to the Minister plenipotentiary of the United States at the Court of London for his information; and that he be instructed candidly to admit that the 4th and 6th Articles of the treaty have been violated in America, as well as the 7th has on the part of Great Britain.
That he inform his britannic Majesty that the United States are taking effectual measures for removing all cause of complaint on their part.
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That he also be authorized to propose and conclude, in the name and behalf of the United States, a Convention with his Majesty, whereby it shall be agreed, that the value of the Negroes, or other American property carried away contrary to the 7th article, be estimated by Commissioners, and paid for; and that the said payment, together with a surrender of all the posts and places now held by his Majesty within the limits of the United States, shall be within Months after all the Acts and parts of Acts existing in the several States, and which violate the treaty, are repealed, and due notice thereof given.
That he be also instructed to assure his Majesty that it will always give pleasure to Congress fairly and candidly to discuss and accommodate every difference or Complaint that may arise relative to the construction or to the performance of the treaty. That they are determined to execute it with good faith; and that as this is the only instance in which any Complaints of that kind have ever come regularly before them, they flatter themselves that the frankness and Candor of their conduct on this Occasion will create in him the same confidence in the purity of their intentions, which they repose in his assurance, "that whenever America shall manifest a real determination to fulfil her part of the treaty, Great Britain will not hesitate to co-operate in whatever points depend upon her for carrying every Article into real and complete effect."
It might also be well to instruct Mr. Adams to endeavour to have an Article inserted in the Convention for the remission of the interest, or a proportion of it, which became due on private Contracts during the War; but your Secretary apprehends, from the general and great impropriety of such interference with private Contracts, that his endeavours would be fruitless.
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He also thinks it might be proper to instruct Mr. Adams to obtain, if possible, an Article to fix the true construction of the declaration for ceasing Hostilities, and stipulating that compensation be made for all Captures contrary to it; but he likewise fears that as this may be considered as a judicial question, and as the balance of the Captures so circumstanced is in favor of Britain, that her consent to such an Article would not be easy to obtain.
It appears to your Secretary that this system ought to give perfect satisfaction to the Court of London, unless perhaps in one point, vizt. that the Individuals who have suffered by our violations are left without compensation for their losses and sufferings.
Although strict justice requires that they who have wrongfully suffered should as far as possible receive retribution and Compensation, yet as it would be very difficult, if practicable, to prevail on the States to adopt such a measure, he thinks it best to be silent about it, especially as the United States have neither the power nor the means of doing it without their concurrence.
Besides, as the detention of the posts has been and continues injurious to the United States, the Consequences of their respective violations may be set against each other; and although the account may not be exactly balanced, yet it cannot be well expected that in affairs of such magnitude, the same regard can be had to minutiæ as in transactions between Individuals.
This report is on a subject no less new and singular than important. Your Secretary is not conscious of any errours in it; and yet there may be some. He hopes the facts are not mistaken or misstated. He believes his reasoning on them to be just; and he flatters
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himself whatever mistakes relative to either may be discovered, that they will be treated with Candor, and ascribed neither to want of attention, nor of Care, but to that fallibility, from which few, if any, even of the wisest and most able, are wholly exempt.1
[Note 1: 1 This proceeding is entered by Benjamin Bankson only in Secret Journal, Foreign, No. 5. See post, October 16.]
Board Of Treasury,
October 12th, 1786.
The Board of Treasury to whom was referred a State of an Account of John Q. Adams against the United States, for his services as private Secretary to the Hon'ble Mr. Dana whilst on his Embassy to the Court of Petersburgh, beg Leave to Report:
That the United States in Congress by their Act of the 22d July, 1785, Resolved "That there be allowed to Mr. Dana, his necessary expence for a private Secretary whilst on his embassy to the Court of Petersburgh."
That the Officers of the Treasury do not conceive themselves authorised to determine under the above resolve the amount of such necessary expence.
That the United States in Congress by their Acts of the 24th May, 1780, and 30th. June, 1786, have allowed to two Gentlemen employed in the same capacity with Mr. J. Q. Adams, at the rate of Three hundred pounds sterling per Annum during the Time they respectively officiated,
That this Board presume therefore that Congress judged the above allowance proper for the service and necessary expence of a person acting in the Capacity of a private Secretary to a Foreign Minister--and as it appears that Mr. J. Q. Adams was employed as a private Secretary to Mr Dana from the 1st. July, 1781, to the 21st April, 1783, the Board submit to the consideration of Congress the following Resolve, vizt.:
That there be allowed to Mr Francis Dana the sum of Two thousand four hundred and ten Dollars 3/90ths of a Dollar, in full for the service and expence of a private Secretary by him employed, whilst on his
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Embassy at the Court of Petersburgh, from the 1st. of July, 1781, to the 21st. April, 1783.
All which is most humbly submitted.1
[Note 1: 1 This report, signed by Samuel Osgood, Walter Livingston, and Arthur Lee, is in the Papers of the Continental Congress, No. 138, I, folio 25. According to indorsement it was read this day and passed October 2, 1787. The accounts are on folios 29--35.]
Boston, 8th October, 1786.
Sir: I had the honor to address your Excellency from Springfield on the 3rd. instant immediately after which, I came to this place in order to concert with the Governor, the most proper measures for the security of the federal magazine at Springfield. He and those gentlemen, connected in the affairs of Government, with whom he consulted confidentially on the occasion, axe unanimous in their opinions, that the stores ought to be protected in their present situation, by the highest exertions.
But a considerable body of troops being essential for this purpose, it is an extremely difficult point to assemble them without alarming the malcontents, an event to be avoided if possible, as it would probably precipitate them to attempt seizing the Magazine. There are abundant reasons to believe they have decided on this measure when their other designs shall be sufficiently matured.
If any eligible plan can be devised, I shall immediately inform your Excellency thereof in order that it may be submitted to Congress for their approbation or otherwise. But it is doubtful in the present convulsed State of this government whether any effectual measures can be adopted for the protection of the Stores in their present situation, unless powerfully assisted by the United States. As soon as this business can be brought to any tolerable issue I shall repair to New York.
I have the honor to be etc.,
H. Knox.2
[Note 2: 2 This letter is in the Papers of the Continental Congress, No. 150, II, folio 17. According to indorsement it was read Oct. 13.
Also was read a petition from Abraham Whipple, praying a settlement of his accounts. It is in No. 42, VIII, folio 369. See post, October 16.]
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