Wythe to Thomas Jefferson, 9 March 1781

George Wythe tells Thomas Jefferson his views on a case concerning payment of bills to Simon Nathan. See Thomas Jefferson to Edmund Randolph, 18 July 1783 and Thomas Jefferson to the Board of Trade, (18? March 1780)

Letter text

Williamsburg, March 9th, 1781.

Notwithstanding those to whom the bills were drawn immediately payable, could not have been entitled to more than the value received for them, I think that Mr. Nathan, the endorsee, if he were not privy to that transaction, and actually paid cash, or an equivalent for them at par when he took them up, may equitably, as well as legally, insist upon the assumpsit; because the terms of the contract between the drawers and original holders not appearing in the bill, as I suppose, it could bind only themselves and such as had notice of the terms, and the contract between him and the drawers was entered into without any deception which could make it appear unfair on his part.

If he were not privy to the contract between the drawers and original holders, and had not mentioned any thing of what he paid for the bills, he might have been irreprehensible; but having informed the Executive that he had taken them up at par, if he do not prove that fact, for otherwise the contrary is presumable, because it is in his power to do it, and the other party probably cannot disprove it; I think equity will relieve against the assumpsit upon this principle, that there was a suggestio falsi on his part, and an advantage gained by it. If he knew of the contract between the drawers and original holders, as he did not mention it to the Executive, although what he said of taking them up at par be true, it seems a disputable question whether there can be any relief. It would be going too far to say that in every bargain one party should disclose to the other whatever the former knows and it is the interest of the latter to know: a total silence, if the dealing in other respects be fair, may be innocent; but if one disclose part only of what he knows, and concealing the rest, by that means gain an unconscienable advantage, this seems a culpable suppression of the truth, because the other party confided in him, and that confidence was abused by not relating the whole truth. Frivolous as this might appear in a matter of light moment; in this case, I suspect the gain to have been enormous, and suppose Mr. Nathan to have been well apprised of the difference between paper bills, the only money which circulated in this Commonwealth, and gold and silver, I think it a good foundation for controverting his demand.

G. WYTHE

Edmund Pendleton's Response to the Issue

From Edmund Pendleton

Edmundsburg, March 7, 1781.

Sir

Relying on the honor of government to keep the case on which my opinion is required out of our Courts of Justice, I see no impropriety in giving it, as you have done me the honor to request: the ground on which it is supposed a Court of Equity might relieve against that acceptance which made a new contract between the Executive and Mr. Nathan, is, that the drawers allege the bills on the Governor and treasurer of Virginia were payable in paper money, and in consequence a value was received for them only according to the then depreciation of that paper; on which head a very proper inquiry seems to be, whether the bills themselves pointed out the sort of money that was to be paid for them or the specific value received? I suppose neither, as that would neither have escaped Mr. Nathan in his purchase, nor the Executive in their acceptance, and that the bills were in the usual and general form, requiring the payment of so many dollars for value received; in which case the bills drawn in the wilderness, and circulated through one Spanish government into another, gave no clue to Mr. Nathan to suppose that any other than silver dollars were intended, so as to put him on his guard. Again, he might very properly say, I run no risk in allowing specie value for the bills, since if it should prove otherwise, and that any other mode of payment should be proposed by those on whom they are drawn, I can declare the proposition, procure a protest of the bills, and have recourse for my money to the endorser from whom I purchase. He accordingly pays full specie value, and presents his bills, which are accepted, and a mode of payment fixed to the satisfaction of both parties; a large payment is accordingly made, and near a year elapsed before any notice is given to Mr. Nathan that government had any objection to the payment as stipulated. The Executive were deceived indeed, but by whom? Not by Mr. Nathan, who, as he paid the same he demanded, was an innocent and fair purchaser; I will not say that those worthy gentlemen who drew the bills were guilty of deceit or neglect in the mode of drawing the bills, or in not giving timely notice of the different value got for them, since I impute these to the hurry they were in, and the difficulty of conveying timely intelligence; but surely the present difficulty is derived from that source, and it is more just that the State should bear the loss than that it should fall on a man who has the law on his side, is in no fault at all, and who has now lost that advantage a protest at first would have entitled him to, of recurring for his money to the man of whom he purchased the bills.

Thus you discover, Sir, my opinion to be in favor of Mr. Nathan, an opinion however, drawn from general principles, and not from any determination I recollect on the subject. You and the Council will judge of the reasoning, and afterwards perhaps it may give the public more satisfaction to have the matter arbitrated in the way you proposed, than to have it rest on my judgment. I have the honor to be, the Council’s and your excellency’s most obedient servant,

Edmund Pendleton

Simon Nathan v. The Commonwealth of Virginia

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As the following case may give some satisfaction to our sister states, I hope the insertion of it here, will not be deemed an improper deviation from my intention, to confine the reports of decisions in the Common Pleas, to those which have occurred since the appointment of Mr. President SHIPPEN — particularly, as I have reason to believe, that the principle of this adjudication, met with the approbation of all the judges, of the Supreme Court.

Common Pleas, Philadelphia County.

September Term, 1781.

Simon Nathan versus the Commonwealth of Virginia.

A foreign attachment was issued against the Commonwealth of Virginia, at the suit of Simon Nathan: and a quantity of cloathing, imported from France, be-

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longing to that state, was attached in Philadelphia. The delegates in Congress from Virginia, conceiving this a violation of the laws of nations, applied to the supreme executive council of Pennsylvania, by whom the sheriff was ordered to give up the goods.

The council for the plaintiff, finding that the sheriff suppressed the writ, and made no return of his proceedings, obtained, September 20, 1781, a rule that the sheriff should return the writ, unless cause was shewn

They contended that the sheriff was a ministerial officer; that he could nor dispute the authority of the court, out of which the writ issues, but was bound to execute and return it at his own peril. 6 Co. 54

That those cases in England, where the sheriff was not compelled to return writs issued against ambassadors or their retinue, depended upon the Stat. 7 Ann. c. 12. which did not extend to this state

The Attorney General, on the part of the sheriff, and by direction of the supreme executive council, shewed cause, and prayed that the rule might be discharged.

He premised, that though the several states, which form our federal republic, had, by the confederation, ceded many of the prerogatives of sovereignty to the United States, yet these voluntary engagements did not injure their independence on each other; but that each was a sovereign, "with every power, jurisdiction, and right, not expressly given up."

He then laid down two positions. First: that every kind of process, issued against a sovereign, is a violation of the laws of nations; and is in itself null and void. Secondly: that a sheriff cannot be compelled to serve or return a void writ.

I. The first point he endeavoured to prove, by considering, first the nature of sovereignty: and, secondly, the rules of law, relative to process issued against ambassadors, the representatives of sovereigns.

He said, that all sovereigns are in a state of equality and independence, exempt from each other's jurisdiction, and accountable to no power on earth, unless with their own consent.

That sovereigns, with regard to each other, were always considered as individuals in a state of nature, where all enjoy the same prerogatives, where there could be no subordination to a supreme authority, nor any judge to define their rights, or redress their wrongs.

That all jurisdiction implies superiority over the party, and authority in the judge to execute his decrees: but there could be no superiority, where there was a perfect equality — no authority, where there was an entire independence.

That the king of England, as sovereign of the nation, is said to be independent of all, and subject to no one but God: and his crown is stiled imperial, on purpose to assert that he owes no kind of subjection to any potentate on earth. No compulsory action can be brought against him, even in his own courts.

That a sovereign, when in a foreign country, is always considered by civilized nations, as exempt from its jurisdiction, privileged from arrests, and not subject to its laws.

Hence this inference was drawn, that the court having no jurisdiction over Virginia, all its process against that state, must be coram non judice, and consequently void. 1 Vatt. p. 2. 133. 2. Vatt. 158. 1 Blackst. 141. 5 Bac. 450.

It was then observed, that there being no instance in our law books, of any process against a sovereign, it was proper to consider the rules of law relative to process against their representatives.

The Statute of Ann was read, with the history of the outrage that gave birth to it; which act declares that all process against the person, or goods, or domestics of an ambassador shall be null and void, and all concerned in issuing or serving it should be punished as infractors of the laws of nations.

That this Statute was not introductory of any rule, but barely declaratory of the laws of nations. That there was nothing new in it, except the clause prescribing a summary mode of punishment. That it was a part of the common law of the land before, and consequently extended to Pennsylvania. 4 Blackst. 67. 3 Burr. 1480. 4 Burr. 2016.

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Hence it was concluded, that if process against an ambassador be null and void, a fortiori, shall it be void if issued against a sovereign.

That the true reason of the minister's exemption from process is the independence and sovereignty of the person he represents. And although by engaging in trade, he may so far divest himself of his public character, as to subject these goods to attachment, yet in every case where he represents his master, his property is sacred. But a sovereign cannot subject himself by implication: he must do it expressly.

That though the goods of a sovereign, as well as of an individual, might be liable for freight, or duties, or subject to forfeiture; yet in those cases, there was a lien on the goods, they were answerable, and the process was in rem: in this case, it was in personam; and the goods were attached merely to compel the party's appearance to answer the plaintiff's demand. And no sovereign would submit to the indignity of doing this.

Hence it was inferred that the writ was a mere nullity.

II. Upon the second point, authorities were read to explain the case produced by the plaintiff's council, and to shew a distinction between an erroneous and a void writ. That the sheriff was bound to execute and return the writ, although erroneous, if the court had jurisdiction. But when the court had no jurisdiction, the writ was void, and the sheriff was a trespasser if he dared to obey it; a void authority being the same as none. That in England, the sheriffs were never obliged to return a writ, if upon shewing cause, it appeared that the defendant was a public minister, or one of his domestics. 5 Bac. 431. Salk. 700. 2 Barnes. 1 Wils. 20.

That suppressing the writ was not making the sheriff judge, because he was obliged to assign a reason for so doing: and on the legality of that reason the court was now to determine.

He added, that if the sheriff had attached the goods, he was liable to punishment, and to compel him to return his proceedings, was to oblige him to put his offence upon record, and to furnish testimony against himself.

He finally observed that the writ was void, or it was not. If void, the sheriff need pay no attention to it: if not void, he was obliged to execute it at all events; and if so, these inconveniencies would follow. That any disaffected person, who happened to be a creditor of the United States, might injure our public defence, and retard or ruin the operations of a campaign; that he might issue an attachment against the cannon of General Washington, or seize the public money designed for the payment of his army. That the states united or several, would never submit to put in special bail (which must be done to prevent judgment) and to answer before the tribunal of a sister state.

That the plaintiff was under no peculiar inconvenience. Every creditor of this state or of the United States lay under the same. If his demand was just, Virginia would, upon application, do what was right; if not, and flagrant injustice was done him, he might (if a subject of this state, and entitled to its protection) complain to the executive power of Pennsylvania.

He concluded with observing on the importance of suppressing such measures as the present, at their first appearance, and of preserving the rights of sovereign states inviolate — and prayed that the rule might be discharged.

The counsel for the plaintiff insisted, that though Virginia was a sovereign state, yet this ought not to exempt her property in every case from the laws and jurisdiction of another state. That sovereignty should never be made a plea in bar of justice: and that the true idea of prerogative, was the power of doing good, and not, as it had sometimes been expressed, "the divine right of doing ill."

That every person, and all property within this state, was subject to its jurisdiction, by so being within it, except a sovereign power, and the representative of a sovereign power, with his domestics and effects, which he holds as representative.

That if an ambassador engages in trade, his property so engaged is liable to attachment, Vat B. IV sect. 114. and if a sovereign state turns merchant, and draws, or accepts bills of exchange, its property ought in like manner to be subject

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to the law merchant, and answerable in the state where it happens to be imported.

That sovereignty is better represented by persons than things: and as any or all the citizens of Virginia would be amenable to the jurisdiction of this state, if they were to come within its bounds, so there is no reason why property brought here should not be attached as well as the citizen arrested.

That one sovereign may lay duties upon the goods of another: and this appears to have been the sense of Congress, by their expressly stipulating in the articles of confederation, that no duties should be laid by one state on the property of another.

That the goods, which were attached, were- certainly liable for their freight: so if they had been imported contrary to law, they were subject to forfeiture: process against them might issue out of this court, and jurisdiction over them be exercised, the sovereignty of Virginia notwithstanding.

That if a vessel belonging to Virginia, should be taken, as prize retaken, and libelled here, Virginia must submit her claim to the decision of the admiralty of Pennsylvania, and could not claim an exemption, on account of her sovereignty.

That a sovereign state may wave its rights— and by the very act of importing merchandize, it subjects itself to the jurisdiction of the country.

That all property in this state is under the protection of the government, and therefore should be answerable in its turn, and amenable to its laws.

That the statute of Ann, though declaratory, is only declaratory of the ideas which that parliament entertained of the laws of nations. These were often erroneous, and could not be binding on us.

That whatever might be the case with regard to foreign ministers, by the articles of confederation, the delegates from Virginia were privileged only in their persons, and not in their goods: and as they represent the state, it was to be presumed, they enjoy every exemption that their sovereign expected or claimed.

They said, that whether Virginia was subject to, or exempt from, the jurisdiction of this state, in the present instance, was not the point now in question: it was only, whether the sheriff should or should not obey the command of the court.

That by the writ, he was directed to return it to the court, and he was not to withhold the process in contempt of this order, and to stifle the proceedings in their birth.

That the sheriff was to act under the judgment of the court, and if he had any doubt about the validity of the writ, he ought to return it. Then the court might, if cause was shewn, quash it as illegal.

That his not being obliged to return process against ambassadors was owing to the statue of Ann: and this exemption was singular, and not to be extended here.

That though a writ might be void, where the court had no jurisdiction of the cause, or issued a writ, which they had no authority to issue; yet the cause here was trespass upon the case, of which the court may hold plea, and the process was a foreign attachment; which they certainly had authority to issue.

That to suffer the sheriff to suppress writs at pleasure, was establishing a dangerous precedent, which in future would be greatly abused.

That the questions upon which this cause depended, were important, and deserved the fullest consideration: and that an appeal from one tribunal to another, was the right and the security of the subject. But if the writ was now to be suppressed, there could be no record to be removed, and the plaintiff was left without remedy.

They finally observed, that this mode of applying to a court of judicature, to decide on the justice of the plaintiff's demand, was every way preferable to that proposed by the attorney general, of sending him to complain to the executive power, who could give him no redress, but by appealing to arms, and involving the state in a war.

They therefore prayed, that the rule might be made absolute.

THE COURT held the matter some days under advisement—and at their next meeting, THE PRESIDENT delivered it as the judgment of the court.

That the rule made upon the sheriff, to return the writ issued against the Commonwealth of Virginia, at the sit of Simon Nathan, should be discharged."

See also

• Journal of the House of Delegates of Virginia
• Thomas Jefferson to the Judges of the High Court of Chancery, 5 March 1781
• Wythe to Thomas Jefferson, 31 December 1781

External links

• "Thomas Jefferson to the Judges of the High Court of Chancery, 5 March 1781," Founders Online, National Archives.
• "Edmund Pendleton to Thomas Jefferson, 7 March 1781," Founders Online, National Archives.
• "George Wythe to Thomas Jefferson, 9 March 1781," Founders Online, National Archives.
• Simon Nathan vs. the Commonwealth of Virginia, Court of Common Pleas, Philadelphia County, Pennsylvania, 1781 (1 Dallas 77, Note), Wikisource.