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.
Your Excellencies Letter of the 12. of January I have had the Honour to receive, and am much obliged to you for the Information in it
Your Opinion of the Policy of this Country, will be found in the Result of Things to be just, and your Reasoning in Support of it is so conclusive and at the Sametime, so obvious, that it is astonishing it has not its Effect upon the Cabinet. Every Consideration has
287
been repeatedly urged to no Effect. Seamen, the Navy, and Power to Strike an awfull Blow to their Ennemies at Sea, on the first breaking out of a War, are the Ideas that prevail over all others. Mr Jenkinson, an old Friend of the British Empire, is Still at his Labours. He is about establishing a Bounty upon fifteen Ships, to the southward and upon two to double Cape Horn for Sperma Cæti Whales. Americans are to take an Oath that they mean to settle in England, before they are entitled to the Bounty.1 I have long Since informed Congress, that nothing is to be expected from this Country, but Poverty, Weakness and Ruin. if after all our People will carry on a ruinous Trade, it is their own Concern. But no Man can do them a greater Injury, than by holding up to their View a hope, that We shall receive any Relief, by taking off the Duty on Oil, or by admission to the West India Islands. They will infallibly be deceived if they entertain any Such Expectations.
I have been circumstancially informed from time to time and Step by Step, from Mr Jefferson the Marquis de la Fayette and Mr Barrett of all the Negotiations for exchanging our Oyl for the Produce, Manufactures and Sugars of France. The great Revolution in Trade, which you mention ought to be promoted by every Friend of America, and it must take Place. I have made Use of all these Considerations But if an Angel from Heaven should declare to this Nation that our States will unite, retaliate, prohibit or trade with France, they would not believe it. There is not one Man in the Nation, who pretends to believe it, and if he did he would be treated with Scorn. Let me intreat you, Sir, and every other Citizen of the United States to extinguish all hopes of relief to their Trade from this Country.
Peace with the Turks, comprehending under this Term Constantinople Tunis, Tripoli, Algiers and Morocco, is essential to our Navigation and Commerce and political Consideration in Europe. Two or three hundred Thousand Guineas, and nothing less will obtain it. it will be miserable Policy and Œconomy, to loose two or three millions in Trade, Insurance &c and Still worse to add two or three millions more in filling out a Navy to fight them, in order to Save that Sum in customary Presents. We are now limited to a Sum that will be worse than thrown away.
Intrigues of Individuals are Said to be on foot, to sett South America free from Spain, and not improbably the Pulse may be felt in the United States. But I hope the States will not only be prudent 288 themselves, but oblige Individuals to be so too.— Portugal & Spain are bound by a Treaty of 1778 to Support each other in Such a Case, and all the World will be in flames.2 We had better avoid the fury of them.
Three great Objects agitate the Cabinets of Europe in Secret. The Passage of the Dardanells and navigation of the Danube, I consider as one, a free Commerce with all the East Indies is a Second, and the Independence of south America is the third. They will all be pursued untill they are obtained, as I fully believe. But as all know the Contest will be Sharp, extensive and long, all are afraid to begin. This is all confidential, between you and me and a few of our discreet Friends.
God bless our Country, but I still tremble for its Safety.
With great Respect, I have the Honour / to be your Excellencys most obedient / and most humble servant
RC (MHi:Winthrop Papers); internal address: “His Excellency / James Bowdoin / Governor of Massachusetts.” LbC (Adams Papers); APM Reel 113.
JA refers to two undertakings then before the Pitt ministry and Parliament. The first concerned the negotiations between William Rotch, a Nantucket merchant, and Charles Jenkinson regarding Rotch’s plan to move Nantucket whaling families to England so that they could carry on their trade without being subject to the British alien duties. The negotiations broke down by mid-1786, and Rotch turned to France as an alternative (vol. 17:598).
The second was an act for the “Encouragement of the Southern Whale Fishery” (26 Geo. 3, ch. 50) that was adopted on 7 June. It was notable for permitting British whaling ships to operate in waters nominally controlled by the East India Company and the South Sea Company. Neither this act nor an earlier act pertaining to the Greenland fishery mentioned Americans (Edouard A. Stackpole, Whales & Destiny: The Rivalry between America, France, and Britain for Control of the Southern Whale Fishery, 1785–1825, Amherst, Mass., 1972, p. 78–79, 81–82; to Benjamin Goodhue, 10 March, note 1, above).
This is the Treaty of El Pardo, signed by Queen Maria I of Portugal and King Charles III of Spain on 11 March 1778.