The Writings of Thomas Jefferson, Vol. 3 (of 9) / Being His Autobiography, Correspondence, Reports, Messages, Addresses, and Other Writings, Official and Private

by Thomas Jefferson

Sec. 45. Again it is said, page 34, "In one State the supreme federal court has thought proper to suspend for many months the final judgment on an action of debt, brought by a British creditor." If by the supreme federal court be meant the supreme court of the United States, I have had their records examined, in order to know what may be the case here alluded to; and I am authorized to say, there neither does, nor ever did exist any cause before that court, between a British subject and a citizen of the United States. See the certificate of the clerk of the court, No. 48. If by the supreme federal court be meant one of the circuit courts of the United States, then which circuit, in which State, and what case is meant? In the course of inquiries I have been obliged to make, to find whether there exists any case, in any district of any circuit court of the United States, which might have given rise to this complaint, I have learnt, that an action was brought to issue, and argued in the circuit court of the United States, in Virginia, at their last term, between Jones, a British subject, plaintiff, and Walker, an American, defendant; wherein the question was the same as in the case of Mildred and Dorsey, to wit; Whether a payment into the treasury, during the war, under a law of the State, discharged the debtor? One of the judges retiring from court, in the midst of the argument, on the accident of the death of an only son, and the case being primæ impressionis in that court, it was adjourned, for consideration, till the ensuing term. Had the two remaining judges felt no motive but of predilection to one of the parties; had they considered only to which party their wishes were propitious or unpropitious; they possibly might have decided that question on the spot. But, learned enough in their science to see difficulties which escape others, and having characters and consciences to satisfy, they followed the example so habitually and so laudably set by the courts of your country, and of every country, where law, and not favor, is the rule of decision, of taking time to consider. Time and consideration are favorable to the right cause, precipitation to the wrong one.

Sec. 46. You say again, p. 29, "The few attempts to recover British debts, in the courts of Virginia, have universally failed, and these are the courts wherein, from the smallness of the sum, a considerable number of debts can only be recovered." Again, p. 34, "In the same State, county courts (which alone can take cognizance of debts of limited amount) have uniformly rejected all suits instituted for the recovery of sums due to the subjects of the crown of Great Britain." In the first place, the county courts, till of late, have had exclusive jurisdiction only of sums below 10l., and it is known, that a very inconsiderable proportion of the British debt consists in demands below that sum. A late law, we are told, requires, that actions below 30l. shall be commenced in those courts; but allows, at the same time, an appeal to correct any errors into which they may fall. In the second place, the evidence of gentlemen who are in the way of knowing the fact, No. 52, 53, is, that though there have been accidental checks in some of the subordinate courts, arising from the chicanery of the debtors, and sometimes, perhaps, a moment of error in the court itself, yet these particular instances have been immediately rectified, either in the same or the superior court, while the great mass of suits for the recovery of sums due to the subjects of the crown of Great Britain, have been uniformly sustained to judgment and execution.

Sec. 47. A much broader assertion is hazarded, page 29. "In some of the Southern States, there does not exist a single instance of the recovery of British debt in their courts, though many years have expired since the establishment of peace between the two countries." The particular States are not specified. I have therefore thought it my duty to extend my inquiries to all the States which could be designated under the description of Southern, to wit: Maryland, and those to the south of that.

As to Maryland, the joint certificate of the senators and delegates of the State in Congress, the letter of Mr. Tilghman, a gentleman of the law in the same State, and that of Mr. Gwinn, clerk of their general court, prove that British suits have been maintained in the superior and inferior courts throughout the State without any obstruction; that British claimants have, in every instance, enjoyed every facility in the tribunals of justice equally with their own citizens; and have recovered in due course of law, and remitted large debts, as well under contracts previous, as subsequent to the war.

In Virginia, the letters of Mr. Monroe and Mr. Giles, members of Congress from that State, and lawyers of eminence in it, prove that the courts of law in that State have been open and freely resorted to by the British creditors, who have recovered and levied their moneys without obstruction; for we have no right to consider as obstructions the dilatory pleas of here and there a debtor, distressed perhaps for time, or even an accidental error of opinion in a subordinate court, when such pleas have been overruled, and such errors corrected in a due course of proceeding marked out by the laws in such cases. The general fact suffices to show that the assertion under examination cannot be applied to this State.

In North Carolina, Mr. Johnston, one of the senators of that State, tells us he has heard indeed but of few suits brought by British creditors in that State; but that he never heard that any one had failed of a recovery because he was a British subject; and he names a particular case, of Elmesly v. Lee's executors, "of the recovery of a British debt in the superior court at Edenton." See Mr. Johnston's letter, No. 54.

In South Carolina, we learn, from No. 55, of particular judgments rendered, and prosecutions carried on, without obstacle, by British creditors, and that the courts are open to them there as elsewhere. As to the modifications of the execution heretofore made by the State law having been the same for foreigner and citizen, a court would decide whether the treaty is satisfied by this equal measure; and if the British creditor is privileged by that against even the same modifications to which citizens and foreigners of all other nations were equally subjected, then the law imposing them was a mere nullity.

In Georgia, the letter of the senators and representatives in Congress, No. 56, assures us that, though they do not know of any recovery of a British debt, in their State, neither do they know of a denial to recover since the ratification of the treaty, the creditors having mostly preferred amicable settlement; and that the federal court is as open and unobstructed to British creditors there, as in any other of the United States; and this is further proved by the late recovery of Brailsford and others, before cited.

Sec. 48. You say more particularly of that State, page 25, "It is to be lamented, that, in a more distant State, (Georgia) it was a received principle, inculcated by an opinion of the highest judicial authority there, that as no Legislative act of the State ever existed, confirming the treaty of peace with Great Britain, war still continued between the two countries—a principle which may perhaps still continue in that State." No judge, no case, no time, is named. Imputations on the judiciary of a country are too serious to be neglected. I have thought it my duty, therefore, to spare no endeavors to find on what fact this censure was meant to be affixed. I have found that Judge Walton of Georgia, in the summer of 1783, the definitive treaty not yet signed in Europe, much less known and ratified here, set aside a writ in the case of Thompson, (a British subject) v. Thompson, assigning for reasons, 1st. "That there was no law authorizing a subject of England to sue a citizen of that State; 2d. That the war had not been definitively concluded; or 3d. If concluded, the treaty not known to, or ratified by, the Legislature; nor 4th. Was it in any manner ascertained how those debts were to be liquidated." With respect to the last reason, it was generally expected that some more specific arrangements, as to the manner of liquidating and times of paying British debts would have been settled in the definitive treaty. No. 58 shows, that such arrangements were under contemplation. And the judge seems to have been of opinion that it was necessary the treaty should be definitively concluded, before it could become a law of the land, so as to change the legal character of an alien enemy, who cannot maintain an action, into that of an alien friend, who may. Without entering into the question, whether, between the provisional and definitive treaties, a subject of either party could maintain an action in the courts of the other (a question of no consequence, considering how short the interval was, and this, probably the only action essayed), we must admit that, if the judge was right in his opinion, that a definitive conclusion was necessary, he was right in his consequence that it should be made known to the Legislature of the State, or, in other words, to the State; and that, till that notification, it was not a law authorizing a subject of England to sue a citizen of that State. The subsequent doctrine of the same judge, Walton, with respect to the treaties, when duly completed, that they are paramount to the laws of the several States, as has been seen in this charge to a grand jury, before spoken of, (Sec. 43,) will relieve your doubts whether the "principle still continues in that State, of the continuance of war between the two countries."

Sec. 49. The latter part of the quotation before made, merits notice also, to wit, where, after saying not a single instance exists of the recovery of a British debt, it is added, "though many years have expired since the establishment of peace between the two countries." It is evident from the preceding testimony, that many suits have been brought, and with effect; yet it has often been matter of surprise that more were not brought, and earlier, since it is most certain that the courts would have sustained their actions and given them judgments. This abstinence on the part of the creditors has excited a suspicion that they wished rather to recur to the treasury of their own country; and to have color for this, they would have it believed that there were obstructions here to bringing their suits. Their testimony is in fact the sole, to which your court till now, has given access. Had the opportunity now presented been given us sooner, they should sooner have known that the courts of the United States, whenever the creditors would choose that recourse, and would press, if necessary, to the highest tribunals, would be found as open to their suits, and as impartial to their subjects, as theirs to ours.