Papers of John Adams, volume 18
th:May 1786.
This will be delivered to you by Dr. Wales Professor of Divinity in Yale-College in New Haven who is About to take a Voyage to England for the recovery of his Health.—1
There is a cause depending in the Superior Court in this State, that is of National concern on which I wish to receive Some information from Your Excellency respecting the law and usage of Nations, it is an Action of Debt between two Subjects of the King of Great Brittain on a contract under hand & Seal Made at Nova Scotia and was to have been performed there, but the Deft. came with his Effects into this State, where he resides at present, the Plaintiff employed Counsel here who brought an action on the contract & Attached a Vessel & other effects of the Deft. the Deft. Pleads abatement to the Jurisdiction of the Courts here because both parties are foreigners & the Contract was made & to have been performed in a foreign State, the Cause has been once heard before the Supr. Court and continued to Advise, there were no precedents in point produced on either side; I Should take it as a particular favour to be informed by your Excellency what is the law and usage of Nations in Europe in Such cases & particularly in Great Britain, whether the Courts there would Sustain Such an Action between two citizens of the United States, I take it, that that Case does not differ from Debt on a Bond or any other tansitory Action, as to the right of maintaing it,—And we wish to give foreigners the Same privileges in our Courts as they will give our citizens in theirs.— this cause is to be heard again the first Tuesday in Sepr. next, I Should therefore wish to have an Answer before that time, if convenient.—2
I have no News remarkable to communicate, we hear that New York State has Granted the General Impost to the united States. all the other States had granted it before— the matter of revenue is the greater difficulty attending our political affairs.— I Shall be obliged to your Excellency for any information that you may think proper to give respecting our affairs in Europe—
286I am with Great Esteem & Respect / Your Excellency’s humble Servt.
RC (Adams Papers); internal address: “His Excellency John Adams Esqr.”; endorsed by WSS: “Roger sherman / May 8th. 1786—”
Rev. Samuel Wales (1748–1794), Yale 1767, was born in Raynham, Mass., and since 1782 had served as the Livingston Professor of Divinity. He was traveling to Europe to seek relief from a condition that later developed into epilepsy (Dexter, Yale Graduates
, 3:257–261). John Jay introduced Wales in a 10 May 1786 letter (Adams Papers), and Ezra Stiles, president of Yale, enclosed a letter to Wales in his to JA of 28 Aug., below.
In 1786 Roger Sherman, later chief justice of the United States and author of the Judiciary Act of 1789, was a justice on the Conn. Superior Court (
DAB
). He refers to the case of Brinley v. Avery. Brought by George Brinley, commissary general of Nova Scotia, the court’s ruling was that “an action is not maintainable in this state upon a contract made in a foreign country, between citizens of that country, and to be there performed.” In only one other known instance, the 1793 Maryland case of Dumoussay v. Delevit, did an American court rule in accordance with Connecticut in the Brinley case.
By 1796, in Potter v. Allin, even Connecticut was in accord with the general rule, which was clearly enunciated in the 1819 Massachusetts case of Barrell v. Benjamin that “it is true that the debtor may be put to inconvenience by being obliged to answer in a foreign country. But the creditor may also be put to inconvenience if he should be denied the privilege of suing in a foreign court; for the debtor may withdraw his person and effects from the place of his business; and if he cannot be pursued, may defraud his creditor of his due” (Kirby 25 [Conn. 1796]; 3 Harr. & McH. 151 [Md. 1793]; 2 Root 63 [Conn. 1796]; 15 Mass. 354 [1819]; Edward L. Barrett Jr., “The Doctrine of Forum Non Conveniens,” California Law Review, 35:380 [Sept. 1947]).
On the fourth, blank page of the letter JA entered the following queries, but there is no indication that he pursued the issues raised in the case further, and he did not reply to Sherman.
“Q.1. Whether a Subject of France can maintain a personal Action against another Subject of France, in the Courts at Westminster Hall, for a Debt contracted in France
“Q.2. Can a British Subject maintain an Action in France against another British Subject for a Debt, contracted in Britain— Suppose it a Note or Bond, and both the Frenchmen in England Englishmen in France.
“Q.3. Can one American Citizen recover of another in London a Debt contracted in the U.S.
“Q.4. Does the Priviledge of Alien Friends of maintaining personal Actions extend to Causes of Action happening out of the British Dominions, and to other alien Friends?” In the second query, the three words replacing the canceled passage are in WSS’s hand.