Chapter XX: Section 1: I can assure you with truth, that we meet you on this (3)

Sec. 52. In drawing a comparison between the proceedings of Great Britain and the United States, you say, page 35, "The conduct of Great Britain, in all these respects, has been widely different from that which has been observed by the United States. In the courts of law of the former country, the citizens of the United States have experienced, _without exception_, the same protection and _impartial_ distribution of justice, as the subjects of the crown." No nation can answer for perfect exactitude of proceedings in all their inferior courts. It suffices to provide a supreme judicature, where all error and partiality will be ultimately corrected. With this qualification, we have heretofore been in the habit of considering the administration of justice in Great Britain as extremely pure. With the same qualification, we have no fear to risk everything which a nation holds dear, on the assertion, that the administration of justice here will be found equally pure. When the citizens of either party complain of the judiciary proceedings of the other, they naturally present but one side of the case to view, and are, therefore, to be listened to with caution. Numerous condemnations have taken place in your courts of vessels taken from us after the expirations of the terms of one and two months stipulated in the armistice. The State of Maryland has been making ineffectual efforts, for nine years, to recover a sum of £55,000 sterling, lodged in the bank of England previous to the war. A judge of the King's bench lately declared, in the case of Greene, an American citizen, _v._ Buchanan and Charnock, British subjects, that a citizen of the United States, who had delivered £43,000 sterling worth of East India goods to a British subject at Ostend, receiving only £18,000 in part payment, is not entitled to maintain an action for the balance in a court of Great Britain, though his debtor is found there, is in custody of the court, and acknowledges the fact. These cases appear strong to us. If your judges have done wrong in them, we expect redress. If right, we expect explanations. Some of them have already been laid before your court. The others will be so in due time. These, and such as these, are the smaller matters between the two nations, which, in my letter of December 15th, I had the honor to intimate, that it would be better to refer for settlement through the ordinary channel of our ministers, than embarrass the present important discussions with them. Such cases will be constantly produced by a collision of interests in the dealings of individuals, and will be easily adjusted by a readiness to do right on both sides, regardless of party.

Sec. 53. III. It is made an objection to the proceedings of our legislative and judiciary bodies, that they have refused to allow interest to run on debts during the course of the war. The decision of the right to this rests with the judiciary alone, neither the Legislative nor the Executive having any authority to intermeddle.

The administration of justice is a branch of the sovereignty over a country, and belongs exclusively to the nation inhabiting it. No foreign power can pretend to participate in their jurisdiction, or that their citizens received there are not subject to it. When a cause has been adjudged according to the rules and forms of the country, its justice ought to be presumed. Even error in the highest court which has been provided as the last means of correcting the errors of others, and whose decrees are, therefore, subject to no further revisal, is one of those inconveniences flowing from the imperfection of our faculties, to which every society must submit; because there must be somewhere a last resort, wherein contestations may end. Multiply bodies of revisal as you please, their number must still be finite, and they must finish in the hands of fallible men as judges. If the error be evident, palpable, [16]et in re minime dubiâ, it then, indeed, assumes another form; it excites presumption that it was not mere error, but premeditated wrong; and the foreigner, as well as native, suffering by the wrong, may reasonably complain, as for a wrong committed in any other way. In such case, there being no redress in the ordinary forms of the country, a foreign prince may listen to complaint from his subjects injured by the adjudication, may inquire into its principles to prove their criminality, and, according to the magnitude of the wrong, take his measures of redress by reprisal, or by a refusal of right on his part. If the denial of interest, in our case, be justified by law, or even if it be against law, but not in that gross, evident, and palpable degree, which proves it to flow from the wickedness of the heart, and not error of the head in the judges, then is it no cause for just complaint, much less for a refusal of right, or self-redress in any other way. The reasons on which the denial of interest is grounded shall be stated summarily, yet sufficiently to justify the integrity of the judge, and even to produce a presumption that they might be extended to that of his science also, were that material to the present object.

Sec. 54. The treaty is the text of the law in the present case, and its words are, that there shall be no lawful impediment to the recovery of bona fide _debts_. Nothing is said of _interest_ on these debts; and the sole question is, whether, where a _debt_ is given, _interest_ thereon flows from the general principles of the law? Interest is not a part of the debt, but something added to the debt by way of damage for the detention of it. This is the definition of the English lawyers themselves, who say, "Interest is recovered by way of _damages_ ratione detentionis debiti."[17] 2 Salk. 622, 623. Formerly, all interest was considered as unlawful, in every country of Europe; it is still so in Roman Catholic countries, and countries little commercial. From this, as a general rule, a few special cases are excepted. In France, particularly, the exceptions are those of minors, marriage portions, and money, the price of lands. So thoroughly do their laws condemn the allowance of interest, that a party who has paid it voluntarily, may recover it back again whenever he pleases. Yet this has never been taken up as a gross and flagrant denial of justice, authorizing national complaint against those governments. In England, also, all interest was against law, till the stat. 37 H. 8, c. 9. The growing spirit of commerce, no longer restrained by the principles of the Roman church, then first began to tolerate it. The same causes produced the same effect in Holland, and, perhaps, in some other commercial and Catholic countries. But, even in England, the allowance of interest is not given by _express law_, but rests on the _discretion of judges and juries_, as the arbiters of damages. Sometimes the judge has enlarged the interest to 20 per cent. per annum. [1 Chanc. Rep. 57.] In other cases, he fixes it, habitually, one per cent. lower than the legal rate, [2 T. Atk. 343,] and in a multitude of cases he refuses it altogether. As, for instance, no interest is allowed--

1. On arrears of rents, profits, or annuities. 1 Chan. Rep. 184, 2 P. W. 163. Ca. temp. Talbot 2.

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

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

4. For goods sold and delivered. 3. Wilson, 206.

5. On book debts, open accounts, or simple contracts. 3 Ch. Rep. 64. Freem. Ch. Rep. 133. Dougl. 376.

6. For money lent without a note. 2 Stra. 910.

7. On an inland bill of exchange, if no protest is taken. 2 Stra. 910.

8. On a bond after 20 years. 2 Vern. 458, or after a tender.

9. On decrees in certain cases. Freem. Ch. Rep. 181.

10. On judgments in certain cases, as battery and slander. Freem. Ch. Rep. 37.

11. On any decrees or judgments in certain courts, as the exchequer chamber. Douglass, 752.

12. On costs. 2 Abr. Eq. 530, 7.

And we may add, once for all, that there is no instrument or title to debt, so formal and sacred, as to give a right to interest on it, under all possible circumstances--the words of Lord Mansfield, Dougl. 753, where he says: "That the question was, what was to be the rule for assessing the _damage_, and that, in this case, the _interest_ ought to be the _measure of the damage_, the action being for a _debt_, but that, in a case of another sort, _the rule might be different_:" his words, Dougl. 376, "That interest might be payable in cases of delay, if a jury, _in their discretion_, shall think fit to allow it." And the doctrine in Giles v. Hart. 2 Salk. 622, that damages, or interest, are but an accessary to the debt, which may be barred by circumstances, which do not touch the debt itself, suffice to prove that interest is not a part of the debt, neither comprehended in the thing, nor in the term; that words, which pass the debt, do not give interest necessarily; that the interest _depends altogether on the discretion of the judges and jurors_, who will govern themselves by all existing circumstances, will take the legal interest for the measure of their damages, or more or less, as they think right; will give it from the date of the contract, or from a year after, or deny it altogether, according as the fault or the sufferings of the one or the other party shall dictate. Our laws are, generally, an adoption of yours, and I do not know that any of the States have changed them in this particular. But there is one rule of your and our law, which, while it proves that every title of debt is liable to a disallowance of interest under special circumstances, is so applicable to our case, that I shall cite it as a text, and apply it to the circumstances of our case. It is laid down in Vin. Abr. Interest. c. 7, and 2 Abr. Eq. 5293, and elsewhere, in these words: "Where, by a _general and national calamity_, nothing is made out of lands which are assigned for payment of interest, it ought not to run on _during the time of such calamity_." This is exactly the case in question. Can a more _general national calamity_ be conceived, than that universal devastation which took place in many of these States during war? Was it ever more exactly the case anywhere, _that nothing was made out of the lands which were to pay the interest_? The produce of those lands, for want of the opportunity of exporting it safely, was down to almost nothing in real money, e. g. tobacco was less than a dollar the hundred weight. Imported articles of clothing for consumption were from four to eight times their usual price. A bushel of salt was usually sold for 100 lbs. of tobacco. At the same time, these lands, and other property, in which the money of the British creditor was vested, were paying high taxes for their own protection, and the debtor, as nominal holder, stood ultimate insurer of their value to the creditor, who was the real proprietor, because they were bought with his money. And who will estimate the value of this insurance, or say what would have been the forfeit, in a contrary event of the war? Who will say that the risk of the property was not worth the interest of its price? _General calamity_, then, prevented profit and, consequently, stopped interest, which is in lieu of profit. The creditor says, indeed, he has laid out of his money; he has therefore lost the use of it. The debtor replies, that, if the creditor has lost, he has not gained it; that this may be a question between two parties, both of whom have lost. In that case, the courts will not double the loss of the one, to save all loss from the other. That it is a rule of natural as well as municipal law, that in questions "de damno evitando melior est conditio possidentis." If this maxim be just, where each party is equally innocent, how much more so, where the loss has been produced by the act of the creditor? For, a nation, as a society, forms a moral person, and every member of it is personally responsible for his society. It was the act of the lender, or of his nation, which annihilated the profits of the money lent; he cannot then demand profits which he either prevented from coming into existence, or burnt, or otherwise destroyed, after they were produced. If, then, there be no instrument, or title of debt so formal and sacred as to give right to interest under all possible circumstances, and if circumstances of exemption, stronger than in the present case, cannot possibly be found, then no instrument or title of debt, however formal or sacred, can give right to interest under the circumstances of our case. Let us present the question in another point of view. Your own law forbade the payment of interest, when it forbade the receipt of American produce into Great Britain, and made that produce fair prize on its way from the debtor to the creditor, or to any other, for his use of reimbursement. All personal access between creditor and debtor was made illegal; and the debtor, who endeavored to make a remitment of his debt, or interest, must have done it three times, to answer its getting once to hand; for two out of three vessels were generally taken by the creditor nation, and, sometimes, by the creditor himself, as many of them turned their trading vessels into privateers. Where no place has been agreed on for the payment of a debt, the laws of England oblige the debtor to seek his creditor wheresoever he is to be found _within the realm_--Coke Lit. 210, b. but do not bind him to go out of the realm in search of him. This is our law too. The first act, generally, of the creditors and their agents here, was, to withdraw from the United States with their books and papers. The creditor thus withdrawing from his debtor, so as to render payment impossible, either of the principal or interest, makes it like the common case of a tender and refusal of money, after which, interest stops, both by your laws and ours. We see, too, from the letter of Mr. Adams, June 16, 1786, No. 57, that the British Secretary for Foreign Affairs was sensible that a British statute, having rendered criminal all intercourse between the debtor and creditor, had placed the article of interest on a different footing from the principal. And the letter of our plenipotentiaries to Mr. Hartley, the British plenipotentiary, for forming the definitive treaty, No. 58, shows, that the omission to express _interest_ in the treaty, was not merely an oversight of the parties; that its allowance was considered by our plenipotentiaries as a thing not to be intended in the treaty, was declared against by Congress, and that declaration communicated to Mr. Hartley. After such an explanation, the omission is a proof of acquiescence, and an intention not to claim it. It appears, then, that the _debt_ and _interest_ on that debt are separate things in every country, and under separate rules. That, in every country, a _debt_ is recoverable, while, in most countries, interest is refused in all cases; in others, given or refused, diminished or augmented, at the discretion of the judge; nowhere given in all cases indiscriminately, and consequently nowhere so incorporated with the _debt_ as to pass with that, _ex vi termini_, or otherwise to be considered as a determinate and _vestat_ thing.

While the taking _interest on money_ has thus been considered, in some countries, as morally wrong in all cases, in others made legally right but in particular cases, the taking _profits from lands_, or rents in lieu of profits, has been allowed everywhere, and at all times, both in morality and law. Hence it is laid down as a general rule, Wolf, s. 229, "Si quis fundum alienum possidet, domini est quantum valet usas fundi, et possessoris quantum valet ejus cultura et cura."[18] But even in the case of lands restored by a treaty, the _arrears_ of profits or rents are never restored, unless they be particularly stipulated. "Si res vi pacis restituendæ, restituendi quoque sunt fructus a die _concessionis_,"[19] say Wolf, s. 1224; and Grotius, "cui pace res conceditur, ei et fructus conceduntur à _tempore concessionis_: NON RETRO."[20] l. 3. c. 20. s. 22. To place the right to interest on money on a level with the right to profits on land, is placing it more advantageously than has been hitherto authorized; and if, as we have seen, a stipulation to restore lands does not include a stipulation to restore the _back profits_, we may certainly conclude, _à fortiori_, that the restitution of debts does not include an allowance of _back interest_ on them.

These reasons, and others like these, have probably operated on the different courts to produce decisions, that "no interest should run during the time this general and national calamity lasted;" and they seem sufficient at least to rescue their decisions from that flagrant denial of right, which can alone authorize one nation to come forward with complaints against the judiciary proceedings of another.

Sec. 55. The States have been uniform in the allowance of interest before and since the war, but not of that claimed during the war. Thus we know by [E. 1.] the case of Neate's executors _v._ Sands, in New York, and Mildred _v._ Dorsey, in Maryland, that in those States interest during the war is disallowed by the courts. By [D. 8.] 1784, May, the act relating to debts due to persons who have been, and remained within the enemy's power or lines during the late war. That Connecticut left it to their Court of Chancery to determine the matter according to the rules of equity, or to leave it to referees; by [E. 2.] the case of Osborn _v._ Mifflin's executors, and [E. 3.] Hare _v._ Allen, explained in the letter of Mr. Rawle, attorney of the United States, No. 59. And by the letter of Mr. Lewis, judge of the district court of the United States, No. 60, that in Pennsylvania the rule is, that where neither the creditor nor any agent was within the State, no interest was allowed; where either remained, they gave interest. In all the other States, I believe it is left discretionary in the courts and juries. In Massachusetts the practice has varied. In November, 1784, they instruct their Delegates in Congress to ask the determination of Congress, whether they understood the word "debts" in the treaty as including interest? and whether it is their opinion, that interest during the war should be paid? and at the same time they pass [D. 9.] the act directing the courts to suspend rendering judgment for any interest that might have accrued between April 19, 1775, and January 20, 1783. But in 1787, when there was a general compliance enacted through all the United States, in order to see if that would produce a counter compliance, their Legislature passed the act repealing all laws repugnant to the treaty, No. 33, and their courts, on their part, changed their rule relative to interest during the war, which they have uniformly allowed since that time. The Circuit Court of the United States, at their sessions at ----, in 1790, determined in like manner that interest should be allowed during the war. So that, on the whole, we see that, in one State interest during the war is given in every case; in another it is given wherever the creditor, or any agent for him, remained in the country, so as to be accessible; in the others, it is left to the courts and juries to decide according to their discretion and the circumstances of the case.

TO RECAPITULATE.

Sec. 56. I have, by way of preliminary, placed out of the present discussion all acts and proceedings prior to the treaty of peace, considering them as settled by that instrument, and that the then state of things was adopted by the parties, with such alterations only as that instrument provided.

I have then taken up the subsequent acts and proceedings, of which you complain as infractions, distributing them according to their subjects, to wit:

I. Exile and confiscations.
II. Debts.
III. Interest.

I. Exile and confiscations.

After premising, that these are lawful acts of war, I have shown that the 5th article was _recommendatory_ only, its stipulations being, not to _restore_ the confiscations and exiles, but to _recommend_ to the State Legislatures to restore them:

That this word, having but one meaning, establishes the intent of the parties; and moreover, that it was particularly explained by the American negotiators, that the Legislatures would be free to comply with the recommendation or not, and probably would not comply:

That the British _negotiators_ so understood it:

That the British _ministry_ so understood it:

And the members of both Houses of _Parliament_, as well those who approved, as who disapproved the article.

I have shown, that Congress did recommend, earnestly and _bona fide_:

That the States refused or complied, in a greater or less degree, according to circumstances, but more of them, and in a greater degree than was expected:

And that compensation, by the British treasury, to British sufferers, was the alternative of her own choice, our negotiators having offered to do that, if she would compensate such losses as we had sustained by acts authorized by the modern and moderate principles of war.

II. Before entering on the subject of debts, it was necessary--

1st. To review the British infractions, and refer them to their exact dates.

To show that the carrying away of the negroes preceded the 6th of May, 1783.

That instead of evacuating the _upper posts with all convenient speed_, no order had been received for the evacuation, August 13, 1783.

None had been received May 10, 1784.

None had been received July 13, 1784.

From whence I conclude none had ever been _given_,

And thence, that none had ever been _intended_.

In the latter case, this infraction would date from the signature of the treaty. But founding it on the _not giving the order with convenient speed_, it dates from April, 1783, when the order for evacuating New York was given, as there can be no reason why it should have been inconvenient to give this order as early.

The infraction, then, respecting the upper posts, was before the treaty was known in America.

That respecting the negroes, was as soon as it was known.

I have observed that these infractions were highly injurious.

The first, by depriving us of our fur trade, profitable in itself, and valuable as a means of remittance for paying the debts; by intercepting our friendly and neighborly intercourse with the Indian nations, and consequently keeping us in constant, expensive, and barbarous war with them.

The second, by withdrawing the cultivators of the soil, the produce of which was to pay the debts.

2d. After fixing the date of the British infractions, I have shown,

That, as they _preceded_, so they _produced_ the acts on our part complained of, as obstacles to the recovery of the debts.

That when one party breaks any stipulation of a treaty, the other is free to break it also, either in the whole, or in equivalent parts, at its pleasure.

That Congress having made no elections,

Four of the States assumed, separately, to modify the recovery of debts--

1. By indulging their citizens with longer and more practicable times of payment.

2. By liberating their bodies from execution, on their delivering property to the creditor, to the full amount of his demand, on a fair appraisement, as practised always under the elegit.

3. By admitting, during the first moments of the non-existence of coin among us, a discharge of executions by payment in paper money.

The first of these acts of retaliation, was in December, 1783, nine months after the infractions committed by the other party.

And all of them were so moderate, of so short duration, the result of such necessities, and so produced, that we might, with confidence, have referred them, _alterius principis, quo boni viri, arbitrio_.

3. That induced, at length, by assurances from the British court, that they would concur in a fulfilment of the treaty,

Congress, in 1787, declared to the States its will, that even the appearance of obstacle, raised by their acts, should no longer continue;

And required a formal repeal of every act of that nature; and to avoid question, required it as well from those who had not, as from those who had passed such acts; which was complied with so fully, that no such laws remained in any State of the Union, except one;

And even that one could not have forborne, if any symptoms of compliance from the opposite party had rendered a reiterated requisition from Congress important.

4. That, indeed, the requiring such a repeal, was only to take away pretext:

For, that it was at all times perfectly understood, that treaties controlled the laws of the States--

The confederation having made them obligatory on the whole:

Congress having so declared and demonstrated them:

The Legislatures and Executives of most of the States having admitted it:

And the Judiciaries, both of the separate and General Governments, so deciding.

That the courts are open everywhere upon this principle:

That the British creditors have, for some time, been in the habit and course of recovering their debts at law:

That the class of separate and unsettled debts contracted before the war, forms now but a small proportion of the original amount:

That the integrity and independence of the courts of justice in the United States, are liable to no reproach:

Nor have popular tumults furnished any ground for suggesting, that either courts or creditors are overawed by them in their proceedings.

III. Proceeding to the article of interest, I have observed:

That the decision, whether it shall or shall not be allowed _during the war_, rests, by our constitution, with the courts altogether.

That if these have generally decided against the allowance, the reasons of their decisions appear so weighty, as to clear them from the charge of that palpable degree of wrong, which may authorize national complaint, or give a right of refusing execution of the treaty, by way of reprisal.

To vindicate them, I have stated shortly, some of the reasons which support their opinion.

That interest during the war, was not _expressly_ given by the treaty:

That the revival of debts did not, _ex vi termini_, give interest on them:

That interest is not a part of the debt, but damages for the detention of the debt:

That it is disallowed habitually in most countries;

Yet has never been deemed a ground of national complaint against them:

That in England also, it was formerly unlawful in all cases:

That at this day it is denied there, in such a variety of instances, as to protect from it a great part of the transactions of life:

That, in fact, there is not a single _title_ to debt, so formal and sacred, as to give a right to _interest_, under all possible circumstances, either there or here:

That of these circumstances, judges and jurors are to decide, _in their discretion_, and are accordingly in the habit of augmenting, diminishing, or refusing interest, in every case, according to their discretion:

That the circumstances against the allowance, are unquestionably of the strongest in our case:

That a _great national calamity_ rendering the lands unproductive, which were to pay the interest, has been adjudged a sufficient cause of itself, to suspend interest:

That, were both plaintiff and defendant equally innocent of that cause,

The question, who should avoid loss? would be in favor of the party in possession:

And, _à fortiori_, in his favor, where the calamity was produced by the act of the demandant.

That, moreover, the laws of the party creditor had cut off the _personal_ access of his debtor,

And the transportation of his _produce or money_ to the country of the creditor, or to any other for him:

And where the creditor prevents payment both of principal and interest, the latter, at least, is justly extinguished.

That the _departure_ of the creditor, leaving no agent in the country of the debtor, would have stopped interest of itself,

The debtor not being obliged to go out of the country to seek him.

That the British minister was heretofore sensible of the weight of the objections to the claim of interest:

That the declarations of Congress and our plenipotentiaries, _previous to the definitive treaty_, and the silence of that instrument, afford proof that interest was not intended on our part, nor insisted on, on the other:

That, were we to admit interest on money, to equal favor with profits on land, arrears of profits would not be demandable in the present case, nor consequently arrears of interest:

And, on the whole, without undertaking to say what the law is, which is not the province of the Executive,

We say, that the reasons of those judges, who deny interest during the war, _appear sufficiently cogent_--

To account for their opinion on honest principles:

To exempt it from the charge of palpable and flagrant wrong, _in re minime dubiâ_:

And to take away all pretence of withholding execution of the treaty, by way of reprisal for that cause.

Sec. 57. I have now, sir, gone through the several acts and proceedings enumerated in your appendix, as infractions of the treaty, omitting, I believe, not a single one, as may be seen by a table hereto subjoined, wherein every one of them, as marked and numbered in your appendix, is referred to the section of this letter in which it is brought into view; and the result has been, as you have seen--

1. That there was no absolute stipulation to restore _antecedent_ confiscations, and that none _subsequent_ took place:

2. That the recovery of the debts was obstructed _validly_ in none of our States, _invalidly_ only in a few, and that not till long after the infractions committed on the other side; and

3. That the decisions of courts and juries against the claims of interest are too probably founded to give cause for questioning their integrity. These things being evident, I cannot but flatter myself, after the assurances received from you of his Britannic Majesty's desire to remove every occasion of misunderstanding from between us, that an end will now be put to the disquieting situation of the two countries, by as complete execution of the treaty as circumstances render practicable at this late day: that it is to be done so late has been the source of heavy losses, of blood and treasure, to the United States. Still our desire of friendly accommodation is, and has been, constant. No "_lawful impediment_ has been opposed to the prosecution of the just rights of your citizens." And if any instances of _unlawful_ impediment have existed in any of the inferior tribunals, they would, like other unlawful proceedings, have been overruled on appeal to the higher courts. If not overruled there, a complaint to the Government would have been regular, and their interference probably effectual. If your citizens would not prosecute their rights, it was impossible they should recover them, or be denied recovery; and till a denial of right through all the tribunals, there is no ground for complaint; much less for a refusal to comply with solemn stipulations, the execution of which is too important to us ever to be dispensed with. These difficulties being removed from between the two nations, I am persuaded the interests of both will be found in the strictest friendship. The considerations which lead to it are too numerous and forcible to fail of their effect; and that they may be permitted to have their full effect, no one wishes more sincerely than he, who has the honor to be, &c.[21]

FOOTNOTES:

[6] "The state in which things are found at the moment of the treaty,
should be considered as lawful; and if it is meant to make any change
init, the treaty must expressly mention it. Consequently, all things,
about which the treaty is silent, must remain in the state in which
they are found at its conclusion." Vattel, 1. 4. s. 21.

[7] "Those things of which nothing is said, remain in the state in
which they are." Wolf, 1222.

[8] Vattel, 1. 4, s. 24.--"The treaty of peace binds the _contracting
parties_ from the moment it is concluded, as soon as it has received
its whole form, and they ought immediately to have it executed. But
this treaty does not bind the _subjects_, but from the moment it is
notified to them." And s. 25.--"The treaty becomes, by its
_publication_, a law for the subjects, and they are obliged,
_thenceforward_, to conform themselvesto the stipulations therein
agreed on."

[9] "The paction of the peace binds the _contractors_ immediately, as
it is _perfect_, since the obligation is derived from the pact; but
the _subjects_ and soldiers, as soon as it is _published_ to them;
since _they cannot have certain evidence of it before its
publication_." Wolf, s. 1229.

[10] "Since it is a condition of war, that enemies may be deprived
of all their rights, it is reasonable that everything of an enemy's,
found among his enemies, should change its owner, and go to the
treasury. It is, moreover, usually directed, in all declarations
of war, that the goods of enemies, as well _those found among us_,
as those taken in war, shall beconfiscated. If we follow the mere
right of war, even _immovable_ property may be sold, and its price
carried into the treasury, as is the customwith movable property.
But in almost all Europe, it is only notified that their profits,
during the war, shall be received by the treasury; and the war being
ended, the immovable property itself is restored, by agreement,
to the former owner." Bynk. Ques. Jur. Pub. 1. 1, c. 7.

[11] "Lors qu'on n'a point marqué de terme pour l'accomplissement du
traité, et pour l'execution de chacun des articles, le bon sens dit
que chaque point doit être executé _aussitôt qu'il est possible_.
C'est sans doute ainsi qu'on l'a entendu."

[12] Instead of this, Fort Erie was, by error, inserted in my letter
of December 15.

[13] "If the obstacle be real, time must be given, for no one is
bound to an impossibility." Vattel l. 4, s. 51.

[14] "No one is bound beyond what he can do, and whether he can,
may be left to the decision of the other prince, as an honest man."
Bynk. Q. J. P. l. 2, c. 10.

[15] "What I have said of things in action being rightly confiscated
hold thus: If the prince really exacts from his subjects what they
owed to our enemies, if he shall have exacted it, it is rightfully
paid, if he shall not have exacted it, peace being made, the former
right of the creditor revives; accordingly, it is for the most part
agreed among nations, that things in action being confiscated in war,
the peace being made, those which were paid are deemed to have
perished and remain extinct; but those not paid, revive, and are
restored to their true creditors."--Bynk. Q. J. P. l. 1, c. 7.

[16] In a matter susceptible of no doubt.

[17] On account of the detention of the debt.

[18] "If any one is in possession of another's land, so much belongs
to the owner as the use of the land is worth, and so much to the
possessor as his labor and care are worth."

[19] "If things are to be restored by virtue of the peace, the
profits are also to be restored _from the day of the cession_."

[20] "To whomsoever a thing is conceded by the peace, to him
also the profits are conceded, _from the time of the concession_,
BUT NOT BACK."

[21] For documents referred to in this letter, see American
State Papers, Foreign Affairs, vol. ii., p. 216.

CIRCULAR TO THE AMERICAN CONSULS.

Philadelphia, May 31, 1792.

Sir,--Congress having closed their session on the 8th instant, I have now the honor to forward you a copy of the laws passed thereat. One of these, chapter twenty-four, will require your particular attention, as it contains such regulations relative to the consular office, as it has been thought proper to establish legislatively.

With respect to the security required by the sixth section, I would prefer persons residing within the United States, where the party can procure such to be his security. In this case, his own bond duly executed may be sent to me, and his sureties here may enter into a separate bond. Where the party cannot conveniently find sureties within the United States, my distance and want of means of knowing their sufficiency, oblige me to refer him to the minister or chargé des affaires of the United States, within the same government, if there be one, and if not, then to the minister of the United States, resident at Paris. The securities which they shall approve, will be admitted as good. In like manner, the account for their disbursements, authorized by this law (and no other can be allowed), are to be settled at stated periods with the minister or chargé within their residence, if there be one, if none, then with the minister of the United States at Paris. The person who settles the account is authorized to pay it. Our consuls in America are not meant to be included in these directions as to securityship and the settlement of their accounts, as their situation gives them a more convenient communication with me. It is also recommended to the consuls to keep an ordinary correspondence with the minister or chargé to whom they are thus referred; but it would be also useful, if they could forward directly to me, from time to time, the prices current of their place, and any other circumstance which it might be interesting to make known to our merchants without delay.

The prices of our funds have undergone some variations within the last three months. The six per cents were pushed by gambling adventurers up to twenty-six and a half, or twenty-seven and a half shillings the pound. A bankruptcy having taken place among these, and considerably affected the more respectable part of the paper holders, a greater quantity of paper was thrown suddenly on the market than there was demand or money to take up. The prices fell to nineteen shillings. This crisis has passed, and they are getting up towards their value. Though the price of public paper is considered as the barometer of the public credit, it is truly so only as to the general average of prices. The real credit of the United States depends on their ability, and the immutability of their will to pay their debts. These were as evident when their paper fell to nineteen shillings, as when it was at twenty-seven shillings. The momentary variation was like that in the price of corn, or any other commodity, the result of a momentary disproportion between the demand and supply.

The unsuccessful issue of our expedition against the savages the last year, is not unknown to you. More adequate preparations are making for the present year, and in the meantime, some of the tribes have accepted peace, and others have expressed a readiness to do the same.

Another plentiful year has been added to those which had preceded it, and the present bids fair to be equally so. A prosperity built on the basis of agriculture is that which is most desirable to us, because to the efforts of labor it adds the efforts of a greater proportion of soil. The checks, however, which the commercial regulations of Europe have given to the sale of our produce, have produced a very considerable degree of domestic manufacture, which, so far as it is of the household kind, will doubtless continue, and so far as it is more public, will depend on the continuance or discontinuance of the European policy.

I am, with great esteem, Sir, your most obedient humble servant.

TO JOHN PAUL JONES.

Philadelphia, June 1, 1792.

Sir,--The President of the United States having thought proper to appoint you commissioner for treating with the Dey and government of Algiers, on the subjects of peace and ransom of our captives, I have the honor to enclose you the commission, of which Mr. Thomas Pinckney, now on his way to London as our Minister Plenipotentiary there, will be the bearer. Supposing that there exists a disposition to thwart our negotiations with the Algerines, and that this would be very practicable, we have thought it advisable that the knowledge of this appointment should rest with the President, Mr. Pinckney and myself; for which reason you will perceive, that the commissions are all in my own hand writing. For the same reason, entire secrecy is recommended to you, and that you so cover from the public your departure and destination, as that they may not be conjectured or noticed; and at the same time, that you set out after as short delay as your affairs will possibly permit.

In order to enable you to enter on this business with full information, it will be necessary to give you a history of what has passed.

On the 25th of July, 1785, the schooner Maria, Captain Stevens, belonging to a Mr. Foster, of Boston, was taken off Cape St. Vincents, by an Algerine cruiser; and five days afterwards, the ship Dauphin, Captain O'Bryan, belonging to Messrs. Irwins, of Philadelphia, was taken by another, about fifty leagues westward of Lisbon. These vessels, with their cargoes and crews, twenty-one persons in number, were carried into Algiers. Mr. John Lambe, appointed agent for treating of peace between the United States and the government of Algiers, was ready to set out from France on that business, when Mr. Adams and myself heard of these two captures. The ransom of prisoners being a case not existing when our powers were prepared, no provision had been made for it. We thought, however, we ought to endeavor to ransom our countrymen, without waiting for orders; but at the same time, that acting without authority, we should keep within the lowest price which had been given by any other nation. We therefore gave a supplementary instruction to Mr. Lambe to ransom our captives, if it could be done for two hundred dollars a man, as we knew that three hundred French captives had been just ransomed by the Mathurins, at a price very little above this sum. He proceeded to Algiers; but his mission proved fruitless. He wrote us word from thence, that the Dey asked fifty-nine thousand four hundred and ninety-six dollars for the twenty-one captives, and that it was not probable he would abate much from that price. But he never intimated an idea of agreeing to give it. As he has never settled the accounts of his mission, no further information has been received. It has been said that he entered into a positive stipulation with the Dey, to pay for the prisoners the price above mentioned, or something near it; and that he came away with an assurance to return with the money. We cannot believe the fact true; and if it were, we disavow it totally, as far beyond his powers. We have never disavowed it formally, because it has never come to our knowledge with any degree of certainty.

In February, 1787, I wrote to Congress to ask leave to employ the Mathurins of France in ransoming our captives; and on the 19th of September, I received their orders to do so, and to call for the money from our bankers at Amsterdam, as soon as it could be furnished. It was long before they could furnish the money, and as soon as they notified that they could, the business was put into train by the General of the Mathurins, not with the appearance of acting for the United States, or with their knowledge, but merely on the usual ground of charity. This expedient was rendered abortive by the revolution of France, the derangement of ecclesiastical orders there and the revocation of church property, before any proposition, perhaps, had been made in form by the Mathurins to the Dey of Algiers. I have some reason to believe that Mr. Eustace, while in Spain, endeavored to engage the court of Spain to employ their Mathurins in this business; but whether they actually moved in it or not, I have never learned.

We have also been told, that a Mr. Simpson of Gibraltar, by the direction of the Messrs. Bulkeleys of Lisbon, contracted for the ransom of our prisoners (then reduced by death and ransom to fourteen) at thirty-four thousand seven hundred and ninety-two dollars. By whose orders they did it, we could never learn. I have suspected it was some association in London, which, finding the prices far above their conception, did not go through with their purpose, which probably had been merely a philanthropic one. Be this as it may, it was without our authority or knowledge.

Again, Mr. Cathalan, our consul at Marseilles, without any instruction from the government, and actuated merely, as we presume, by willingness to do something agreeable, set on foot another negotiation for their redemption; which ended in nothing.

These several volunteer interferences, though undertaken with good intentions, run directly counter to our plan; which was, to avoid the appearance of any purpose on our part ever to ransom our captives, and by that semblance of neglect, to reduce the demands of the Algerines to such a price, as might make it hereafter less their interest to pursue our citizens than any others. On the contrary, they have supposed all these propositions directly or indirectly came from us; they inferred from thence the greatest anxiety on our part, where we had been endeavoring to make them suppose there was none; kept up their demands for our captives at the highest prices ever paid by any nation; and thus these charitable, though unauthorized interpositions, have had the double effect of strengthening the chains they were meant to break, and making us at last set a much higher rate of ransom for our citizens, present and future, than we probably should have obtained, if we had been left alone to do our own work in our own way. Thus stands this business then at present. A formal bargain, as I am informed, being registered in the books of the former Dey, on the part of the Bulkeleys of Lisbon, which they suppose to be obligatory on us, but which is to be utterly disavowed, as having never been authorized by us, nor its source even known to us.

In 1790, this subject was laid before Congress fully, and at the late session, moneys have been provided, and authority given to proceed to the ransom of our captive citizens at Algiers, provided it shall not exceed a given sum, and provided also, a peace shall be previously negotiated within certain limits of expense. And in consequence of these proceedings, your mission has been decided on by the President.

Since, then, no _ransom_ is to take place without a _peace_, you will of course take up first the negotiation of peace; or, if you find it better that peace and ransom should be treated of together, you will take care that no agreement for the latter be concluded, unless the former be established before or in the same instant.

As to the conditions, it is understood that no peace can be made with that government, but for a larger sum of money to be paid at once for the whole time of its duration, or for a smaller one to be annually paid. The former plan we entirely refuse, and adopt the latter. We have also understood that peace might be bought cheaper with naval stores than with money; but we will not furnish them with naval stores, because we think it not right to furnish them means which we know they will employ to do wrong, and because there might be no economy in it as to ourselves, in the end, as it would increase the expenses of that coercion which we may in future be obliged to practise towards them. The only question then, is, what sum of _money_ will we agree to pay them _annually_, for peace? By a letter from Captain O'Bryan, a copy of which you will receive herewith, we have his opinion that a peace could be purchased with _money_, for sixty thousand pounds sterling, or with _naval stores_, for one hundred thousand dollars. An annual payment equivalent to the first, would be three thousand pounds sterling, or thirteen thousand and five hundred dollars, the interest of the sum in gross. If we could obtain it for as small a sum as the second, in _money_, the annual payment equivalent to it would be five thousand dollars. In another part of the same letter, Captain O'Bryan says, "if maritime stores and two light cruisers be given, and a tribute paid in maritime stores every two years, amounting to twelve thousand dollars in America," a peace can be had. The gift of stores and cruisers here supposed, converted into an annual equivalent, may be stated at nine thousand dollars, and adding to it half the biennial sum, would make fifteen thousand dollars, to be annually paid. You will, of course, use your best endeavors to get it at the lowest sum practicable; whereupon I shall only say, that we should be pleased with ten thousand dollars, contented with fifteen thousand, think twenty thousand a very hard bargain, yet go as far as twenty-five thousand, if it be impossible to get it for less; but not a copper further, this being fixed by law as the utmost limit. These are meant as annual sums. If you can put off the first annual payment to the end of the first year, you may employ any sum not exceeding that, in presents to be paid down; but if the first payment is to be made in hand, that and the presents cannot by law exceed twenty-five thousand dollars.

And here we meet a difficulty, arising from the small degree of information we have respecting the Barbary States. Tunis is said to be tributary to Algiers. But whether the effect of this be, that peace being made with Algiers, is of course with the Tunisians without separate treaty, or separate price, is what we know not. If it be possible to have it placed on this footing, so much the better. In any event, it will be necessary to stipulate with Algiers, that her influence be interposed as strongly as possible with Tunis, whenever we shall proceed to treat with the latter; which cannot be till information of the event of your negotiation, and another session of Congress.

As to the articles and form of the treaty in general, our treaty with Morocco was so well digested that I enclose you a copy of that, to be the model with Algiers, as nearly as it can be obtained, only inserting the clause with respect to Tunis.