The act of the Legislature of Georgia of 4 May, 1784, did not
vest in the state debts due by a citizen of Georgia to a
partnership, some of the members of which were citizens of South
Carolina and one of whom was a subject of Great Britain.
No sequestration divests the property in the thing
sequestered.
The act of the Legislature of Georgia sequestering debts due to
British subjects prevented the recovery of the debt by suit during
the continuance of the war, but the mere restoration of peace, as
well as the terms of the treaty, revived the right of action.
Page 3 U. S. 2
This was a trial at the bar of the Court by a jury to determine
the right of the State of Georgia, under the Confiscation Act of 4
May, 1782, to a debt due by a citizen of Georgia to a partnership
composed of certain persons, some of whom were citizens of South
Carolina and one of whom was a British subject and had been in
England during the whole of the war of the Revolution.
The plaintiffs alleged that James Spalding, a citizen of Georgia
and surviving co-partner of Kelsall & Spalding, was indebted to
the defendants in the penal sum of �7,058 9s. 5d. upon a bond,
dated in 1774, which debt, by virtue of the said recited law, was
transferred from the obligees and vested in the state -- Brailsford
being a native subject of Great Britain, constantly residing there
from the year 1767 'till after the passing of the law; Hopton's
estate, real and personal (debts excepted), having been expressly
confiscated by an act of the Legislature of South Carolina, and
Powell coming within the description of persons whose estates, real
and personal (debts excepted), were also confiscated by acts of the
Legislature of South Carolina if after refusing to take the oath of
allegiance, they returned to the state.
It was denied by the defendants that by a fair construction of
the law of South Carolina and of the confiscation act of Georgia,
the debt due by Kelsall & Spalding had become the property of
the plaintiffs. For the plaintiffs, it was contended:
1. That Georgia, as a sovereign state, had power to transfer the
debt from the original creditor, an alien enemy, to herself
notwithstanding some of the debtors were citizens of another state,
and that, by her law, she had declared her intention to make the
transfer, and that without an inquest of office, the transfer had
been carried into effect in due form, as well in relation to her
own citizens as to the parties who were citizens of South
Carolina.
Page 3 U. S. 3
MR. CHIEF JUSTICE JAY.
"This cause has been regarded as of great importance, and
doubtless it is so. It has accordingly been treated by the counsel
with great learning, diligence, and ability, and on your part it
has been heard with particular attention. It is therefore
unnecessary for me to follow the investigation over the extensive
field into which it has been carried -- you are now, if ever you
can be, completely possessed of the merits of the cause. "
Page 3 U. S. 4
"The facts comprehended in the case are agreed; the only point
that remains is to settle what is the law of the land arising from
those facts, and on that point it is proper that the opinion of the
Court should be given. It is fortunate on the present, as it must
be on every occasion, to find the opinion of the Court unanimous:
we entertain no diversity of sentiment, and we have experienced no
difficulty in uniting in the charge, which it is my province to
deliver."
"We are then, Gentlemen, of opinion that the debts due to Hopton
& Powell (who were citizens of South Carolina) were not
confiscated by the statute of South Carolina, the same being
therein expressly excepted: that those debts were not confiscated
by the statute of Georgia, for that statute enacts, with respect to
Powell & Hopton, precisely the like, and no other, degree and
extent of confiscation and forfeiture with that of South Carolina.
Wherefore it cannot now be necessary to decide how far one state
may of right legislate relative to the personal rights of citizens
of another state not residing within their jurisdiction."
"We are also of opinion that the debts due to Brailsford, a
British subject, residing in Great Britain, were by the statute of
Georgia subjected not to confiscation, but only to sequestration,
and therefore that his right to recover them revived at the peace,
both by the law of nations and the treaty of peace."
"The question of forfeiture in the case of joint obligees, being
at present immaterial, need not now be decided."
"It may not be amiss, here, Gentlemen, to remind you of the good
old rule that on questions of fact, it is the province of the jury;
on questions of law it is the province of the court to decide. But
it must be observed that by the same law which recognizes this
reasonable distribution of jurisdiction, you have nevertheless a
right to take upon yourselves to judge of both, and to determine
the law as well as the fact in controversy. On this and on every
other occasion, however, we have no doubt you will pay that respect
which is due to the opinion of the court: for, as on the one hand,
it is presumed, that juries are the best judges of facts, it is, on
the other hand, presumable that the court is the best judge of law.
But still both objects are lawfully, within your power of
decision."
"Some stress has been laid on a consideration of the different
situations of the parties to the cause. The State of Georgia sues
three private persons. But what is it to justice how many, or how
few; how high, or how low; how rich, or how poor; the contending
parties may chance to be? Justice is indiscriminately due to all,
without regard to numbers, wealth, or rank. Because to the State of
Georgia, composed of many
Page 3 U. S. 5
thousands of people, the litigated sum cannot be of great
moment, you will not for this reason be justified in deciding
against her claim; if the money belongs to her, she ought to have
it; but on the other hand, no consideration of the circumstances or
of the comparative insignificance of the defendants can be a ground
to deny them the advantage of a favorable verdict if in justice
they are entitled to it."
"Go then, Gentlemen, from the bar without any impressions of
favor or prejudice for the one party or the other; weigh well the
merits of the case, and do on this as you ought to do on every
occasion, equal and impartial justice."
The jury having been absent some time, returned to the bar, and
proposed the following questions to the court.
1. Did the act of the State of Georgia completely vest the debts
of Brailsford, Powell & Hopton in the state at the time of
passing the same?
2. If so, did the treaty of peace or any other matter revive the
right of the defendants to the debt in controversy?
In answer to these questions, THE CHIEF JUSTICE stated that it
was intended in the general charge of the Court, to comprise their
sentiments upon the points now suggested, but as the jury
entertained a doubt, the inquiry was perfectly right. On the first
question, he said it was the unanimous opinion of the judges that
the act of the State of Georgia did not vest the debts of
Brailsford, Powell & Hopton in the state at the time of passing
it. On the second question he said that no sequestration divests
the property in the thing sequestered, and consequently Brailsford,
at the peace and indeed throughout the war, was the real owner of
the debt. That it is true the State of Georgia interposed with her
legislative authority to prevent Brailford's recovering the debt
while the war continued, but that the mere restoration of peace, as
well as the very terms of the treaty, revived the right of action
to recover the debt, the property of which had never in fact or law
been taken from the defendants, and that if it were otherwise, the
sequestration would certainly remain a lawful impediment to the
recovering of a
bona fide debt due to a British creditor,
in direct opposition to the fourth article of the treaty.
After this explanation, the jury, without going again from the
bar, returned a verdict for the defendants.
