Томас Джефферсон
The Writings of Thomas Jefferson, Vol. 3 (of 9)
Sec. 25. Again, in page 34, it is said, "The nation of Great Britain has been involved in the payment to them of no less a sum than four millions sterling, as a partial compensation for the losses they had sustained." It has been before proved, that Mr. Oswald understood perfectly, that no indemnification was claimable from us; that, on the contrary, we had a counter claim of indemnification to much larger amount. It has been supposed, and not without grounds, that the glimmering of hope, provided by the recommendatory article, was to quiet, for the present, the clamors of the sufferers, and to keep their weight out of the scale of opposition to the peace, trusting to time and events for an oblivion of these claims, or a gradual ripening of the public mind to meet and satisfy them at a moment of less embarrassment: the latter is the turn which the thing took. The claimants continued their importunities, and the Government determined at length to indemnify them for their losses; and, open-handedly as they went to work, it cost them less than to have settled with us the just account of mutual indemnification urged by our commissioners. It may be well doubted, whether there were not single States of our Union to which the four millions you have paid would have been no indemnification for the losses of property sustained contrary even to the laws of war; and what sum would have indemnified the whole thirteen, and, consequently, to what sum our whole losses of this description have amounted, would be difficult to say. However, though in nowise interested in the sums you thought proper to give to the refugees, we could not be inattentive to the measure in which they were dealt out. Those who were on the spot, and who knew intimately the state of affairs with the individuals of this description, who knew that their debts often exceeded their possessions, insomuch that the most faithful administration made them pay but a few shillings in the pound, heard with wonder of the sums given, and could not but conclude, that those largesses were meant for something more than loss of property—that services and other circumstances must have had great influence. The sum paid is therefore no imputation on us. We have borne our own losses. We have even lessened yours, by numerous restitutions, where circumstances admitted them; and we have much the worst of the bargain by the alternative you choose to accept, of indemnifying your own sufferers, rather than ours.
Sec. 26. II. The article of debts is next in order; but to place on their true grounds our proceedings relative to them, it will be necessary to take a view of the British proceedings, which are the subject of complaint in my letter of December 15.
In the 7th article, it was stipulated, that his Britannic Majesty should withdraw his armies, garrisons, and fleets, without carrying away any negroes, or other property of the American inhabitants. This stipulation was known to the British commanding officers, before the 19th of March, 1783, as provisionally agreed; and on the 5th of April they received official notice from their court of the conclusion and ratification of the preliminary articles between France, Spain, and Great Britain, which gave activity to ours, as appears by the letter of Sir Guy Carleton to General Washington, dated April 6, 1783. Document No. 21. From this time, then, surely, no negroes could be carried away without a violation of the treaty. Yet we find that, so early as May 6, a large number of them had already been embarked for Nova Scotia, of which, as contrary to an express stipulation in the treaty, General Washington declared to him his sense and surprise. In the letter of Sir Guy Carleton of May 12 (annexed to mine to you of the 15th of December), he admits the fact; palliates it by saying he had no right to deprive the negroes of that liberty he found them possessed of; that it was unfriendly to suppose that the King's minister could stipulate to be guilty of a notorious breach of the public faith towards the negroes; and that, if it was his intention, it must be adjusted by compensation, restoration being utterly impracticable, where inseparable from a breach of public faith. But surely, sir, an officer of the King is not to question the validity of the King's engagements, nor violate his solemn treaties, on his own scruples about the public faith. Under this pretext, however, General Carleton went on in daily infractions, embarking, from time to time, between his notice of the treaty and the 5th of April, and the evacuation of New York, November 25, 3,000 negroes, of whom our commissioners had inspection, and a very large number more, in public and private vessels, of whom they were not permitted to have inspection. Here, then, was a direct, unequivocal and avowed violation of this part of the 7th article, in the first moments of its being known; an article which had been of extreme solicitude on our part, on the fulfilment of which depended the means of paying debts, in proportion to the number of laborers withdrawn; and when, in the very act of violation, we warn, and put the commanding officer on his guard, he says, directly, he will go through with the act, and leave it to his court to adjust it by compensation.
Sec. 27. By the same article, his Britannic Majesty stipulates, that he will, with all convenient speed, withdraw his garrisons from every post within the United States. "When no precise term," says a writer on the Law of Nations [Vattel, 1. 4. c. 26.], "has been marked for the accomplishment of a treaty, and for the execution of each of its articles, good sense determines that every point should be executed as soon as possible. This is, without doubt, what was understood."11 The term in the treaty, with all convenient speed, amounts to the same thing, and clearly excludes all unnecessary delay. The general pacification being signed on the 20th of January, some time would be requisite for the orders for evacuation to come over to America, for the removal of stores, property, and persons, and finally for the act of evacuation. The larger the post, the longer the time necessary to remove all its contents; the smaller, the sooner done. Hence, though General Carleton received his orders to evacuate New York in the month of April, the evacuation was not completed till late in November. It had been the principal place of arms and stores; the seat, as it were, of their general government, and the asylum of those who had fled to them. A great quantity of shipping was necessary, therefore, for the removal, and the General was obliged to call for a part from foreign countries. These causes of delay were duly respected on our part. But the posts of Michillimackinac,12 Detroit, Niagara, Oswego, Oswegatchie, Point-au-Fer, Dutchman's Point, were not of this magnitude. The orders for evacuation, which reached General Carleton, in New York, early in April, might have gone, in one month more, to the most remote of these posts. Some of them might have been evacuated in a few days after, and the largest in a few weeks. Certainly they might all have been delivered, without any inconvenient speed in the operations, by the end of May, from the known facility furnished by the lakes, and the water connecting them; or by crossing immediately over into their own territory, and availing themselves of the season for making new establishments there, if that was intended. Or whatever time might, in event, have been necessary for their evacuation, certainly the order for it should have been given from England, and might have been given as early as that from New York. Was any order ever given? Would not an unnecessary delay of the order, producing an equal delay in the evacuation, be an infraction of the treaty? Let us investigate this matter.
On the 3d of August, 1783, Major-General Baron Steuben, by orders from General Washington, having repaired to Canada for this purpose, wrote the letter No. 22 to General Haldimand, Governor of the province, and received from him the answer of August 13, No. 23. Wherein he says, "The orders I have received, direct a discontinuance of every hostile measure only," &c. And in his conference with Baron Steuben, he says expressly, "That he had not received any orders for making the least arrangements for the evacuation of a single post." The orders, then, which might have been with him by the last of April, were unknown, if they existed, the middle of August. See Baron Steuben's letter, No. 24.
Again, on the 19th of March, 1784, Governor Clinton, of New York, within the limits of which State some of these posts are, writes to General Haldimand, the letter No. 25; and that General, answering him, May 10, from Quebec, says, "Not having had the honor to receive orders and instructions relative to withdrawing the garrisons," &c.; fourteen months were now elapsed, and the orders not yet received, which might have been received in four.
Again, on the 12th of July, Colonel Hull, by order from General Knox, the Secretary of War, writes to General Haldimand, the letter No. 27; and General Haldimand gives the answer of the 13th, No. 28, wherein he says, "Though I am now informed, by his Majesty's ministers, of the ratification, &c., I remain, &c., not having received any orders to evacuate the posts which are without the limits," &c. And this is eighteen months after the signature of the general pacification! Now, is it not fair to conclude, if the order was not arrived on the 13th of August, 1783, if it was not arrived on the 10th of May, 1784, nor yet on the 13th of July, in the same year, that, in truth, the order had never been given? and if it had never been given, may we not conclude that it never had been intended to be given? From what moment is it we are to date this infraction? From that, at which, with convenient speed, the order to evacuate the upper posts might have been given. No legitimate reason can be assigned, why that order might not have been given as early, and at the same time, as the order to evacuate New York; and all delay, after this, was in contravention of the treaty.
Sec. 28. Was this delay merely innocent and unimportant to us, setting aside all considerations but of interest and safety? 1. It cut us off from the fur-trade, which before the war had been always of great importance as a branch of commerce, and as a source of remittance for the payment of our debts to Great Britain; for the injury of withholding our posts, they added the obstruction of all passage along the lakes and their communications. 2. It secluded us from connection with the northwestern Indians, from all opportunity of keeping up with them friendly and neighborly intercourse, brought on us consequently, from their known dispositions, constant and expensive war, in which numbers of men, women, and children, have been, and still are, daily falling victims to the scalping knife, and to which there will be no period, but in our possession of the posts which command their country.
It may safely be said, then, that the treaty was violated in England, before it was known in America, and in America, as soon as it was known, and that too, in points so essential, as that, without them, it would never have been concluded.
Sec. 29. And what was the effect of these infractions on the American mind? On the breach of any article of a treaty by the one party, the other has its election to declare it dissolved in all its articles, or to compensate itself by withholding execution of equivalent articles; or to waive notice of the breach altogether.
Congress being informed that the British commanding officer was carrying away the negroes from New York, in avowed violation of the treaty, and against the repeated remonstrances of General Washington, they take up the subject on the 26th of May, 1783; they declare that it is contrary to the treaty; direct that the proper papers be sent to their ministers plenipotentiary in Europe to remonstrate, and demand reparation, and that, in the meantime, General Washington continue his remonstrances to the British commanding officer, and insist on the discontinuance of the measure. See document No. 29.
Sec. 30. The State of Virginia, materially affected by this infraction, because the laborers thus carried away were chiefly from thence, while heavy debts were now to be paid to the very nation which was depriving them of the means, took up the subject in December, 1783, that is to say, seven months after that particular infraction, and four months after the first refusal to deliver up the posts, and instead of arresting the debts absolutely, in reprisal for their negroes carried away, they passed [D. 5.] the act to revive and continue the several acts for suspending the issuing executions on certain judgments until December, 1783, that is to say, they revived, till their next meeting, two acts passed during the war, which suspended all voluntary and fraudulent assignments of debt, and as to others, allowed real and personal estate to be tendered in discharge of executions; the effect of which was to relieve the body of the debtor from prison, by authorizing him to deliver property in discharge of the debt. In June following, thirteen months after the violation last mentioned, and after a second refusal by the British commanding officer to deliver up the posts, they came to the resolution No. 30, reciting specially the infraction respecting their negroes, instructing their delegates in Congress to press for reparation; and resolving, that the courts shall be opened to British suits, as soon as reparation shall be made, or otherwise, as soon as Congress shall judge it indispensably necessary. And in 1787, they passed [C. 7.] the act to repeal so much of all and every act or acts of assembly, as prohibits the recovery of British debts; and, at the same time [E. 6.] the act to repeal part of an act for the protection and encouragement of the commerce of nations acknowledging the independence of the United States of America. The former was not to be in force till the evacuation of the posts, and reparation for the negroes carried away. The latter requires particular explanation. The small supplies of European goods, which reached us during the war, were frequently brought by captains of vessels and supercargoes, who, as soon as they had sold their goods, were to return to Europe with their vessels. To persons under such circumstances, it was necessary to give a summary remedy for the recovery of the proceeds of their sale. This had been done by the law for the protection and encouragement of the commerce of nations acknowledging the independence of the United States, which was meant but as a temporary thing, to continue while the same circumstances continued. On the return of peace, the supplies of foreign goods were made, as before the war, by merchants resident here. There was no longer reason to continue to them the summary remedy, which had been provided for the transient vender of goods. And, indeed, it would have been unequal to have given the resident merchant instantaneous judgment against a farmer or tradesman, while the farmer or tradesman, could pursue those who owed him money but in the ordinary way, and with the ordinary delay. The British creditor had no such unequal privilege while we were under British government, and had no title to it, in justice, or by the treaty, after the war. When the Legislature proceeded, then, to repeal the law, as to other nations, it would have been extraordinary to have continued it for Great Britain.
Sec. 31. South Carolina was the second State which moved in consequence of the British infractions, urged thereto by the desolated condition in which their armies had left that country, by the debts they owed, and the almost entire destruction of the means of paying them. They passed [D. 7. 20.] 1784, March 26th, an ordinance respecting the recovery of debts, suspending the recovery of all actions, as well American as British, for nine months, and then allowing them to recover payment at four equal and annual instalments only, requiring the debtor in the meantime, to give good security for his debt, or otherwise refusing him the benefit of the act, by—
[D. 21.] 1787, March 28, An act to regulate the recovery and payment of debts, and prohibiting the importation of negroes, they extended the instalments, a year further in a very few cases. I have not been able to procure the two following acts [D. 14.] 1785, October 12th, An act for regulating sales under executions, and for other purposes therein mentioned; and
[D. 22.] 1788, Nov. 4, An act to regulate the payment and recovery of debts, and to prohibit the importation of negroes for the time therein limited; and I know nothing of their effect, or their existence, but from your letter, which says, their effect was to deliver property in execution, in relief of the body of the debtor, and still further to postpone the instalments. If, during the existence of material infractions on the part of Great Britain, it were necessary to apologize for these modifications of the proceedings of the debtor, grounds might be found in the peculiar distresses of that State, and the liberality with which they had complied with the recommendatory articles, notwithstanding their sufferings might have inspired other dispositions, having pardoned everybody, received everybody, restored all confiscated lands not sold, and the prices of those sold.
Sec. 32. Rhode Island next acted on the British infractions, and imposed modifications in favor of such debtors as should be pursued by their creditors, permitting them to relieve their bodies from execution by the payment of paper money, or delivery of property. This was the effect of [D. 12.] 1786, March, An act to enable any debtor in jail, on execution at the suit of any creditor, to tender real, or certain specified articles of personal estate; and
[D. 16.] 1786, May, An act making paper money a legal tender. But observe, that this was not till three years after the infractions by Great Britain, and repeated and constant refusals of compliance on their part.
Sec. 33. New Jersey did the same thing, by—
[D. 13.] 1786, March 23, An act to direct the modes of proceedings on writs on fieri facias, and for transferring lands and chattels for payment of debts; and
[D. 18.] 1786, May 26, An act for striking, and making current £100,000 in bills of credit, to be let out on loan; and
[D. 17.] 1786, June 1, An act for making bills, emitted by the act for raising a revenue of £31,259 5s. per annum, for twenty-five years, a legal tender; and
Sec. 34. Georgia, by [D. 19.] 1786, August 14, An act for emitting the sum of £50,000 in bills of credit, and for establishing a fund for the redemption, and for other purposes therein mentioned, made paper money also a legal tender.
These are the only States which appear, by the acts cited in your letter, to have modified the recovery of debts. But I believe that North Carolina also emitted a sum of paper money and made it a tender in discharge of executions; though, not having seen the act, I cannot affirm it with certainty. I have not mentioned, because I do not view the act of Maryland [D. 15.] 1786, Nov. c. 29, for the settlement of public accounts, &c., as a modification of the recovery of debts. It obliged the British subject, before he could recover what was due to him within the State, to give bond for the payment of what he owed therein. It is reasonable that every one, who asks justice, should do justice; and it is usual to consider the property of a foreigner, in any country, as a fund appropriated to the payment of what he owes in that country, exclusively. It is a care which most nations take of their own citizens, not to let the property, which is to answer their demands, be withdrawn from its jurisdiction, and send them to seek it in foreign countries, and before foreign tribunals.
Sec. 35. With respect to the obstacles thus opposed to the British creditor, besides their general justification, as being produced by the previous infractions on the part of Great Britain, each of them admits of a special apology. They are, 1st. Delay of judgment; 2d. Liberating the body from execution, on the delivery of property; 3d. Admitting executions to be discharged in paper money. As to the 1st, let it be considered, that, from the nature of the commerce carried on between these States and Great Britain, they were generally kept in debt; that a great part of the country, and most particularly Georgia, South Carolina, North Carolina, Virginia, New York, and Rhode Island, had been ravaged by an enemy, movable property carried off, houses burnt, lands abandoned, the proprietors forced off into exile and poverty. When the peace permitted them to return again to their lands, naked and desolate as they were, was instant payment practicable? The contrary was so palpable, that the British creditors themselves were sensible that, were they to rush to judgment immediately against their debtors, it would involve the debtor in total ruin, without relieving the creditor. It is a fact, for which we may appeal to the knowledge of one member at least of the British administration of 1783, that the chairman of the North American merchants, conferring on behalf of those merchants with the American ministers then in London, was so sensible that time was necessary as well to save the creditor as debtor, that he declared there would not be a moment's hesitation, on the part of the creditors, to allow payment by instalments annually for seven years, and that this arrangement was not made, was neither his fault nor ours.
To the necessities for some delay in the payment of debts may be added the British commercial regulations, lessening our means of payment, by prohibiting us from carrying in our own bottoms our own produce to their dominions in our neighborhood, and excluding valuable branches of it from their home markets by prohibitory duties. The means of payment constitute one of the motives to purchase, at the moment of purchasing. If these means are taken away, by the creditor himself, he ought not in conscience to complain of a mere retardation of his debt, which is the effect of his own act, and the least injurious to those it is capable of producing. The instalment acts before enumerated have been much less general, and for a shorter term than what the chairman of the American merchants thought reasonable. Most of them required the debtor to give security, in the meantime, to his creditor, and provided complete indemnification of the delay by the payment of interest, which was enjoined in every case.
Sec. 36. The second species of obstacle was the admitting the debtor to relieve his body from imprisonment, by the delivery of lands or goods to his creditor. And is this idea original, and peculiar to us? or whence have we taken it? From England, from Europe, from natural right and reason. For it may be safely affirmed, that neither natural right nor reason subjects the body of a man to restraint for debt. It is one of the abuses introduced by commerce and credit, and which even the most commercial nations have been obliged to relax, in certain cases. The Roman law, the principles of which are the nearest to natural reason of those of any municipal code hitherto known, allowed imprisonment of the body in criminal cases only, or those wherein the party had expressly submitted himself to it. The French laws allow it only in criminal or commercial cases. The laws of England, in certain descriptions of cases (as bankruptcy) release the body. Many of the United States do the same in all cases, on a cession of property by the debtor. The levari facias, an execution affording only the profits of lands, is the only one allowed in England, in certain cases. The elegit, another execution of that and this country, attaches first on a man's chattels, which are not to be sold, but to be delivered to the plaintiff, on a reasonable appraisement, in part of satisfaction for his debt, and if not sufficient, one half only of his lands are then to be delivered to the plaintiff, till the profits shall have satisfied him. The tender laws of these States were generally more favorable than the execution by elegit, because they not only gave, as that does, the whole property in chattels, but also the whole property in the lands, and not merely the profits of them. It is, therefore, an execution framed on the model of the English elegit, or rather an amendment of that writ, taking away, indeed, the election of the party against the body of his debtor, but giving him, in exchange for it, much more complete remedy against his lands. Let it be observed, too, that this proceeding was allowed against citizens, as well as foreigners; and it may be questioned, whether the treaty is not satisfied, while the same measure is dealt out to British subjects, as to foreigners of all other nations, and to natives themselves. For it would seem, that all a friend can expect, is to be treated as a native citizen.
Sec. 37. The third obstacle was the allowing paper money to be paid for goods sold under execution. The complaint on this head is only against Georgia, South Carolina, Jersey, and Rhode Island; and this obstruction, like the two others, sprung out of the peculiar nature of the war; for those will form very false conclusions, who reason, as to this war, from the circumstances which have attended other wars, and other nations. When any nation of Europe is attacked by another, it has neighbors, with whom its accustomary commerce goes on, without interruption; and its commerce with more distant nations is carried on by sea, in foreign bottoms, at least under protection of the laws of neutrality. The produce of its soil can be exchanged for money, as usual, and the stock of that medium of circulation is not at all diminished by war; so that property sells as readily and as well, for real money, at the close, as at the commencement of the war. But how different was our case: on the north and south, were our enemies; on the west, deserts inhabited by savages in league with them; on the east, an ocean of one thousand leagues, beyond which, indeed, were nations, who might have purchased the produce of our soil, and have given us real money in exchange, and thus kept up our stock of money, but who were deterred from coming to us by threats of war on the part of our enemies, if they should presume to consider us as a people, entitled to partake the benefit of that law of war, which allows commerce with neutral nations. What were the consequences? The stock of hard money, which we possessed in an ample degree, at the beginning of the war, soon flowed into Europe for supplies of arms, ammunition, and other necessaries, which we were not in the habit of manufacturing for ourselves. The produce of our soil, attempted to be carried in our own bottoms to Europe, fell, two-thirds of it, into the hands of our enemies, who were masters of the sea; the other third illy sufficed to procure the necessary implements of war; so that no returns of money supplied the place of that which had gone off. We were reduced, then, to the resource of a paper medium, and that completed the exile of the hard money; so that, in the latter stages of the war, we were, for years together, without seeing a single coin of the precious metals in circulation. It was closed with a stipulation that we should pay a large mass of debt, in such coin. If the whole soil of the United States had been offered for sale for ready coin, it would not have raised as much as would have satisfied this stipulation. The thing, then, was impossible, and reason and authority declare, "Si l'empêchement est reel, il faut donner du tems; car nul n'est tenu a l'impossible."13 Vattel, l. 4, s. 51. We should, with confidence, have referred the case to the arbiter proposed by another jurist, who lays it down that a party, "Non ultra obligari, quam in quantum facere potest; et an possit, permittendum alterius principis, quo boni viri arbitrio."14 Bynk. Q. J. P. l. 2, c. 10. That four of the States should resort, under such circumstances, to very small emissions of paper money, is not wonderful; that all did not, proves their firmness under sufferance, and that they were disposed to bear whatever could be borne, rather than contravene, even by way of equivalent, stipulations which had been authoritatively entered into for them. And even in the four States, which emitted paper money, it was in such small sums, and so secured, as to suffer only a short-lived, and not great depreciation of value; nor did they continue its quality as a tender, after the first paroxysms of distress were over. Here, too, it is to be observed, that natives were to receive this species of payment, equally with British subjects.
So that, when it is considered, that the other party had broken the treaty, from the beginning, and that, too, in points which lessened our ability to pay their debts, it was a proof of the moderation of our nation, to make no other use of the opportunity of retaliation presented to them, than to indulge the debtors with that time for discharging their debts, which their distresses called for, and the interests and the reason of their creditors approved.
Sec. 38. It is to be observed, that, during all this time, Congress, who alone possessed the power of peace and war, of making treaties, and, consequently, of declaring their infractions, had abstained from every public declaration, and had confined itself to the resolution of May 26th, 1783, and to repeated efforts, through their minister plenipotentiary at the court of London, to lead that court into a compliance on their part, and reparation of the breach they had committed. But the other party now laid hold of those very proceedings of our States, which their previous infractions had produced, as a ground for further refusal; and inverting the natural order of cause and effect, alleged that these proceedings of ours were the causes of the infractions, which they had committed months and years before. Thus the British minister for foreign affairs, in his answer of February 28th, 1786, to Mr. Adams' memorial, says, "The engagements entered into by treaty ought to be mutual, and equally binding on the respective contracting parties. It would, therefore, be the height of folly, as well as injustice, to suppose one party alone obliged to a strict observance of the public faith, while the other might remain free to deviate from its own engagements, as often as convenience might render such deviation necessary, though at the expense of its own national credit and importance; I flatter myself, however, Sir, that justice will speedily be done to British creditors; and I can assure you, Sir, that whenever America shall manifest a real intention to fulfil her part of the treaty, Great Britain will not hesitate to prove her sincerity to co-operate in whatever points depend upon her, for carrying every article of it into real and complete effect." Facts will furnish the best commentary on this letter. Let us pursue them.
