United States Supreme Court Cases & Opinions

U.S. Supreme Court

Ware v. Hylton, 3 U.S. 3 Dall. 199 199 (1796)

Ware v. Hylton

3 U.S. (3 Dall.) 199

ERROR TO THE CIRCUIT COURT

FOR THE DISTRICT OF VIRGINIA

Syllabus

The act of the Legislature of Virginia of 1779 entitled "An act concerning escheats and forfeitures from British subjects," and under which a debtor to a subject of Great Britain had, in conformity to the provisions of that law, during the war, paid into the loan office of the state a portion of the debt due by him, did not operate to protect the debtor from a suit for such debt after the treaty of peace in 1783. The statute of Virginia, if it was valid and the legislature could pass such a law, was annulled by the fourth article of the treaty, and under this article, suits for the recovery of debts so due might be maintained, the provisions of the Virginia law to the contrary notwithstanding.

The action was brought by William Jones (but as he died pendente lite, his administrator was duly substituted as plaintiff in the cause), surviving partner of Farrel & Jones, subjects of the King of Great Britain, against Daniel Hylton & Co. and Francis Eppes, citizens of Virginia, on a bond, for the penal sum of £2976 11s. 6d. sterling, dated 7 July, 1774.

The defendants pleaded 1st, payment, and also, by leave of the court, the following additional pleas in bar of the action.

"2d. That the plaintiff ought not to have and maintain his action aforesaid, against them for $3,111 1/9, equal to £933 14.s., part of the debt in the declaration mentioned, because they say that on 4 July, 1776, they, the said defendants, became citizens of the State of Virginia, and have ever since remained citizens thereof and residents therein, and that the plaintiff, on the said 4 July, 1776, and the said Joseph Farrel were, and from the time of their nativity ever had been, and always since have been, and the plaintiff still is a British subject, owing, yielding, and paying allegiance to the King of Great Britain, which said King of Great Britain and all his subjects, as well the plaintiff as others, were, on the said 4 July, 1776, and so continued until the third of September, 1783, enemies of and at open war with the State of Virginia and the United States of America, and that being so enemies and at open war as aforesaid, the Legislature of the State of Virginia did, at their session begun and held in the City of Williamsburgh on Monday, 20 October, 1777, pass an act entitled"

"An act for sequestering British property, enabling those indebted

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to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties,"

"whereby it was enacted"

" That it may and shall be lawful for any citizen of this Commonwealth owing money to a subject of Great Britain to pay the same or any part thereof from time to time as he shall think fit into the said loan office, taking thereout a certificate for the same in the name of the creditor, with an endorsement under the hand of the commissioner of the said office expressing the name of the payer, and shall deliver such certificate to the governor and council, whose receipt shall discharge him from so much of the said debt."

"And the defendants say that the said Daniel L. Hylton and Co. did, on 26 April, 1780, in the County of Henrico and in the State of Virginia, while the said recited act continued in full force, in pursuance thereof pay into the loan office of this Commonwealth, on account of the debt in the declaration mentioned, the sum of $3,111 1/9, equal to £933 14s., and did take out a certificate for the same in the name of Farell and Jones, in the declaration mentioned, as creditors, with an endorsement under the hand of the commissioner of the said office, expressing the name of the payer, which certificate they, the defendants, then delivered to the governor and council, who gave a receipt therefor in conformity to the directions of the said act, in the words and figures following, to-wit:"

" Received into the council's office a certificate bearing date 26 April, 1780, under the hand of the treasurer, that Daniel L. Hylton and Co. have paid to him $3,111 1/9, to be applied to the credit of their accounts with Farrell & Jones, British subjects. Given under my hand, at Richmond, this 30 May, 1780."

"T. JEFFERSON"

"Whereby the defendants, by virtue of the said act of assembly, are discharged from so much of the debt in the declaration mentioned as the said receipt specifies and amounts to, and this they are ready to verify. Wherefore they pray the judgment of the court whether the said plaintiff ought to have or maintain his action aforesaid against them for the £933 14s., part of the debt in the declaration mentioned."

"3d. That the plaintiff ought not to have or maintain his action aforesaid against them because they say that, on 4 July, 1776, the said defendants became citizens of the State of Virginia, and have ever since remained citizens thereof and residents therein, and that the said plaintiff and the said Joseph Farrell, on the said 4 July, 1776, and from the time of their nativity, had ever been, and always since have been, British subjects,

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and the plaintiff still is a British subject, yielding and paying allegiance to the King of Great Britain, which said King of Great Britain, and all his subjects, as well the plaintiff and the said Joseph Farell as others, were on the said 4 July, 1776, and so continued till 3 September, in the year 1783, enemies of and at open war with the State of Virginia and the United States of America, and that, being so enemies and at open war as aforesaid, the Legislature of the State of Virginia did, at its session commenced and held in the City of Williamsburg on 3 May, 1779, pass an act entitled 'An act concerning escheats and forfeitures from British subjects,' whereby it was, among other things enacted,"

" That all the property, real and personal, within this commonwealth belonging at this time to any British subject or which did belong to any British subject at the time when such escheat or forfeiture may have taken place shall be deemed to be vested in the commonwealth; the lands, slaves, and other real estate, by way of escheat, and the personal estate by forfeiture."

"And the Legislature of the State of Virginia did, in its session begun and held in the Town of Richmond on Monday, 6 May, 1782, pass an act entitled 'An act to repeal so much of a former act as suspends the issuing of executions upon certain judgments until December, 1783,' whereby it is enacted that no demand whatsoever originally due to a subject of Great Britain shall be recoverable in any court in this commonwealth, although the same may be transferred to a citizen of this state or to any other person capable of maintaining such an action, unless the assignment hath been or may be made for a valuable consideration, bona fide, paid before 1 May, 1777, which said acts are unrepealed and still in force. And the defendants in fact say, that the debt in the declaration mentioned was personal property within this commonwealth, belonging to a British subject at the time of the passing of the said act entitled 'An act concerning escheats and forfeitures from British subjects,' and the defendants in fact also say that the debt in the declaration mentioned is a demand originally due to a subject of the King of Great Britain not transferred to any person whatsoever. And these things they are ready to verify. Wherefore they pray the judgment of the court, whether the said plaintiff ought to have, or maintain his action aforesaid against them."

"4th. That the plaintiff his action aforesaid against them ought not to have or maintain because they say that a definitive treaty of peace between the United States of America and his Britannic Majesty was done at Paris on 3 September, 1783, and that by a part of the seventh

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article of the said treaty it was expressly agreed on the part of his Britannic Majesty with the United States, among other things,"

" That his said Britannic Majesty should with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons, and fleets from the said United States and from every port, place, and harbor within the same,"

"which may more fully appear, reference being had to the said treaty; and the said defendants aver that on the 3 September, 1783, and from their birth to this day, they have been citizens of these United States and of the State of Virginia, and that the plaintiff has ever been a British subject, and that the plaintiff ought not to maintain an action, because his Britannic Majesty hath willfully broken and violated the said treaty in this, that his Britannic Majesty hath, from the day of the said treaty and ever since, continued to carry off the negroes in his possession, the property of the American inhabitants of the United States, and hath and still doth refuse to deliver them or permit the owners of the said negroes to take them. And the defendants aver that his Britannic Majesty hath refused and still doth refuse to withdraw his armies and garrisons from every port and harbor within the United States, which his said Britannic Majesty was bound to do by the said treaty; and the defendants aver that from the day of the treaty, his Britannic Majesty, by force and violence and with his army, retains possession of the forts Detroit and Niagara and a large territory adjoining the said forts and within the bounds and limits of the United States of America, and the defendants say that in further violation of the said treaty of peace concluded as aforesaid, certain nations or tribes of Indians, known by the names of Shawanese, Tawas, Twightoes, Powtawatemies, Quiapoees, Wiandots, Mingoes, Piankaskaws, and Naiadonepes, and others, being at open, public, and known wars with the inhabitants of the United States and living within the limits thereof, and for the purpose of aiding the said Indians in such war and hostility, at certain posts, forts and garrisons, held and kept by the troops and garrisons of his Britannic Majesty, to-wit, at Detroit, Michelimachinac, and Niagara, within the limits of the said United States, on 4 September, 1783, and at divers times after the said 4 September, 1783, up to the institution of this suit, by orders and directions of his Britannic Majesty and his officers commanding his said troops and armies at the said garrisons of Detroit, Michelimachinac, and Niagara, and at other forts and places held by the said troops and armies within the limits of the United States, are supplied and furnished with arms, ammunition, and weapons of war, to-wit, with guns and gunpowder, lead

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and leaden bullets, tomahawks and scalping-knives, for the purpose of enabling them to prosecute the war against the citizens of these United States, and also giving and paying to the said Indians money, goods, wares, and merchandise for booty and plunder taken in such war, and for persons, citizens of these United States, made prisoners by the said Indians, in such their warfare against the United States, and so the King of Great Britain is an enemy to these United States; and this they are ready to verify. Wherefore they pray judgment of the court whether the plaintiff his action aforesaid against them ought to have or maintain."

"5th. That the debt in the declaration mentioned was contracted before 4 July, 1776, to-wit, on 7 July, 1774, and that when the said debt was contracted, and from thence to the said 4 July, 1776, and on that day and until this day the said plaintiff was and is a subject to the King of Great Britain residing in Virginia, until the said 4 July, 1776, on which day the people of North America, among whom were these defendants, who had theretofore been the subjects of the King of Great Britain, dissolved the 'till then subsisting government, whereby the right of the plaintiff to the debt in the declaration mentioned was totally annulled. And this they are ready to verify; wherefore they pray the judgment of the court whether the plaintiff ought to have or maintain his action aforesaid, against them."

The plaintiff replied 1st., non solverunt to the plea of payment, on which issue was joined, and to the 2d plea in bar he replied,

"2d. That he, by reason of anything in the said plea alleged ought not to be barred from having or maintaining his said action against the said defendants, because, protesting that that plea and the matters therein contained are not sufficient in law to bar the said plaintiff from having or maintaining his said action in this behalf against the said defendants, to which the said plaintiff hath no reason, nor is he bound by the law of the land to answer, yet for replication in this behalf he, the said plaintiff, saith that after the debt in the said declaration mentioned was contracted and after the said 4 July, 1776, in the said plea of the said defendants mentioned, and also after the said 20 October, 1777, and the passing the act of general assembly in the said plea also mentioned, and also after the day in which the said receipt in the plea stated, is said to have been granted, to-wit, on 3f September, 1783, it was by the definitive Treaty of Peace between the United States of America and his Britannic Majesty, made and done in the

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City of Paris, that is to say, in the Commonwealth, now District, of Virginia, and now within the jurisdiction of this Honorable Court, stipulated and agreed, among other things,"

"that the creditors of either side should meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts, theretofore contracted,"

"and the said plaintiff in fact saith that he, on the said 3 September, 1783, and for a long time before (as well as the said Joseph Farrell, in his lifetime were) then was and ever since hath been and still is a subject of his Britannic Majesty and a creditor within the intent and meaning of the 4th article of the Definitive Treaty, and that the debt in the declaration mentioned was contracted before the said 3 September, 1783 -- that is to say in the county and commonwealth aforesaid, now the District of Virginia, and now within the jurisdiction of this Honorable Court, and there was and still is owing and unpaid. And the said plaintiff, for further replication saith that after contracting the debt in the declaration mentioned by the said defendants, and also after 4 July, 1776, and after the said 20 October, 1777, and also after the said 3 September, 1783 -- that is to say, on the __ day of 1787 in the then Commonwealth, now the District of Virginia, and now within the jurisdiction of this Honorable Court, it was by the Constitution of the United States of America, among other things, expressly declared that treaties which were then made or should thereafter be made under the authority of the United States, should be the supreme law of the land, anything in the said Constitution, or of the laws of any state to the contrary notwithstanding, and the said plaintiff doth in fact aver that the said Constitution of the United States was made and accepted subsequent to and after the ratification of the said definitive treaty of peace between the said United States of America and his Britannic Majesty, whose subject the said plaintiff then was and still is, and after the said 4 July, 1776, and also after the said 20 October, 1777. Wherefore, without that the debt in the declaration mentioned was bona fide contracted before the making of the said Definitive Treaty of Peace and before the making of the said Constitution of the United States, that he, the said plaintiff, is entitled to demand, have, and recover of the said defendants the aforesaid debt in the declaration mentioned without that the governor and council did give a receipt for a certificate of the payment into the loan office of the sum of $1,311 1/9 in the name of Farrell & Jones

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and in conformity to the direction of the act of general assembly entitled"

"An act for sequestering British property, enabling those indebted to British subjects to pay of such debts, and directing the proceedings in suits where such subjects are parties,"

"whilst the said act was in force, as in the said plea of the said defendants is alleged, and this he is ready to verify. Wherefore the said plaintiff, as before, prays judgment of the court, and his debt aforesaid, and damages for detention of the debt to be adjudged to him."

To the 3rd, 4th and 5th pleas in bar, the plaintiff demurred generally.

The defendants to the plaintiff's second replication rejoined that the said plaintiff, for anything in the said replication contained, ought not to have or maintain his said action against them because they, by way of rejoinder, in this behalf, say, that in the same Definitive Treaty of Peace between the United States of America and his Britannic Majesty, by the said plaintiff in his replication mentioned, and which is now to the court shown, it was among other things stipulated and contracted as follows:

"There shall be a firm and perpetual peace between his Britannic Majesty and the said United States and between the subjects of the one and the citizens of the other; wherefore, all hostilities both by sea and land, shall from henceforth cease, all prisoners on both sides shall be set at liberty, and his Britannic Majesty shall, with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons, and fleets, from the said United States and from every port, place, and harbor within the same. And the defendants in fact say that his said Britannic Majesty hath not performed those things which by the said Treaty of Peace he was bound to perform, but hath altogether failed to do so, and hath broken the said Treaty in this: that on 4 September, 1783, and on 3 June, 1790, and at divers times between the said 4 September, 1783, and the said 3 June, 1790, his Britannic Majesty at Detroit and other parts within the boundaries of the United States, to-wit, within the Commonwealth of Virginia and the jurisdiction of this Honorable Court, in open violation of the said treaty and the articles thereof, excited, persuaded, and stirred up the Shawanese and divers other tribes of Indians to make war upon the said United States of America and the Commonwealth of Virginia, and gave them, the said Indians, aid in the prosecution of the said war and furnished them with arms and ammunition for the purpose of enabling them to prosecute the same. And his said Britannic

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Majesty hath not, with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdrawn all his armies, garrisons and fleets from the said United States and from every port and place within the same, but hath carried away five thousand negroes, the property of American inhabitants, on 4 September, 1783, from New York, to-wit, in the Commonwealth of Virginia, and within the jurisdiction of the court, and hath refused to withdraw with all convenient speed his armies and garrisons from the United States and from every post and place within the same, but hath, with force and violence and in open violation of the said Treaty of Peace, on the said 3 September, 1783, and since maintained his armies and garrisons in the forts of Niagara and Detroit, which are posts and places within the United States, and still doth maintain his armies and garrisons within the said forts; and the defendants further say that the debt in the declaration mentioned, or so much thereof as is equal to the sum of £933 14s., was not a bona fide debt due and owing to the plaintiff, on the said 3 September, 1783, because the defendant had, on the ___ day of 1780, in Virginia as aforesaid, paid in part thereof, the sum of $311 1/9, and afterwards obtained a certificate therefor, according to the act of the general assembly entitled"

"An act for sequestering British property, enabling those indebted to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties,"

"which payment was made while the said act continued in full force, without that the said Treaty of Peace and the Constitution of the United States entitle the said plaintiff to maintain his said action against the said defendants, for so much of the said debt in the declaration mentioned as is equal to £933 14s., and this they are ready to verify. Wherefore they pray the judgment of the court whether the plaintiff ought to have or maintain his action aforesaid, against them, for so much of the debt in the declaration mentioned, as is equal to the said sum of £933 14s."

The defendants joined issue on the demurrer to the 3rd, 4th, and 5th pleas in bar. And the plaintiff having demurred to the defendants rejoinder to the second replication, issue was thereupon likewise joined.

On the demurrer to the defendant's rejoinder to the plaintiff's replication to the second plea, judgment was given by the circuit court, for the defendants, and that as to so much of the debt in the declaration mentioned, as is in the said second plea set forth, the plaintiff take nothing by his bill. On which judgment, the present writ of error was brought, but on

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demurrer to the 3rd, 4th, and 5th pleas, judgment was given for the plaintiff; a venire was awarded to try the issue in fact on the first plea of payment, and on the trial, a verdict and judgment were given for the plaintiff for $596, with interest at 5 percent from 7 July, 1782, and costs.

On the return of the record, the error assigned was that judgment had been given for the defendants, instead of being given for the plaintiff, upon his demurrer to their rejoinder to the replication to the second plea. In nullo est erratum was pleaded, and thereupon issue was joined.

The general question was whether, by paying a debt due before the war from an American citizen to British subjects into the loan office of Virginia in pursuance of the law of that state, the debtor was discharged from his creditor?

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The Court, after great consideration, delivered its opinions seriatim, as follow:

CHASE, JUSTICE.

The defendants in error, on the __ day of July, 1774, passed their penal bond to Farrell & Jones for the payment of £2,976 11s. 6p. of good British money, but the condition of the bond, or the time of payment, does not appear on the record.

On 20 October, 1777, the Legislature of the Commonwealth of Virginia, passed a law to sequester British property. In the third section of the law it was enacted

"That it should be lawful for any citizen of Virginia owing money to a subject of Great Britain to pay the same or any part thereof from time to time as he should think fit into the loan office, taking thereout a certificate for the same in the name of the creditor, with an endorsement, under the hand of the commissioner of the said office, expressing the name of the payer, and

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shall deliver such certificate to the governor and the council, whose receipt shall discharge him from so much of the debt. And the governor and the council shall in like manner lay before the general assembly once in every year an account of these certificates, specifying the names of the persons by and for whom they were paid, and shall see to the safekeeping of the same, subject to the future directions of the legislature, provided that the governor and the council may make such allowance as they shall think reasonable out of the interest of the money so paid into the loan office to the wives and children, residing in the state of such creditor."

On 26 April, 1780, the defendants in error paid into the loan office of Virginia part of their debt, to-wit, $3,111 1/9, equal to £933 14s. Virginia currency, and obtained a certificate from the commissioners of the loan office and a receipt from the Governor and the Council of Virginia, agreeably to the above, in part recited law.

The defendants in error, being sued on the above bond in the Circuit Court of Virginia, pleaded the above law and the payment above stated in bar of so much of the plaintiff's debt. The plaintiff, to avoid this bar, replied the fourth article of the Definitive Treaty of Peace, between Great Britain and the United States, of 3 September, 1783. To this replication there was a general demurrer and joinder. The circuit court allowed the demurrer, and the plaintiff brought the present writ of error.

The case is of very great importance, not only from the property that depends on the decision but because the effect and operation of the treaty are necessarily involved. I wished to decline sitting in the cause, as I had been counsel, some years ago, in a suit in Maryland in favor of American debtors, and I consulted with my brethren, who unanimously advised me not to withdraw from the bench. I have endeavored to divest myself of all former prejudices and to form an opinion with impartiality. I have diligently attended to the arguments of the learned counsel, who debated the several questions that were made in the cause with great legal abilities, ingenuity, and skill. I have given the subject, since the argument, my deliberate investigation, and shall, as briefly as the case will permit, deliver the result of it with great diffidence and the highest respect for those who entertain a different opinion. I solicit and I hope I shall meet with a candid allowance for the many imperfections which may be discovered in observations hastily drawn up, in the intervals of attendance in court and the consideration of other very important cases.

The first point raised by the counsel for the plaintiff in error was "that the Legislature of Virginia had no right to make

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the law of 20 October, 1777, above in part recited." If this objection is established, the judgment of the circuit court must be reversed because it destroys the defendants plea in bar and leaves him without defense to the plaintiff's action.

This objection was maintained on different grounds by the plaintiff's counsel. One of them (Mr. Tilghman) contended, that the Legislature of Virginia had no right to confiscate any British property, because Virginia was part of the dismembered empire of Great Britain, and the plaintiff and defendants were, all of them, members of the British nation when the debt was contracted, and therefore that the laws of independent nations do not apply to the case, and if applicable, that the Legislature of Virginia was not justified by the modern law and practice of European nations in confiscating private debts. In support of this opinion he cited Vattel Lib. 3, c. 5, s. 77, who expresses himself thus:

"The sovereign has naturally the same right over what his subjects may be indebted to enemies. Therefore he may confiscate debts of this nature if the term of payment happen in the time of war. But at present, in regard to the advantage and safety of commerce, all the sovereigns of Europe have departed from this 'rigor', and as this custom has been generally received, he who should act contrary to it would injure the public faith, for strangers trusted his subjects only from a firm persuasion that the general custom would be observed."

The other counsel for the plaintiff in error (Mr. Lewis) denied any power in the Virginia Legislature to confiscate any British property because all such power belonged exclusively to Congress, and he contended that if Virginia had a power of confiscation, yet it did not extend to the confiscation of debts by the modern law and practice of nations.

I would premise that this objection against the right of the Virginia Legislature to confiscate British property (and especially debts) is made on the part of British subjects and after the treaty of peace, and not by the government of the United States. I would also remark that the law of Virginia was made after the declaration of independence by Virginia, and also by Congress, and several years before the Confederation of the United States, which, although agreed to by Congress on 15 November, 1777, and assented to by ten states in 1778, was only finally completed and ratified on 1 March, 1781.

I am of opinion that the exclusive right of confiscating, during the war, all and every species of British property within the territorial limits of Virginia resided only in the legislature of that commonwealth. I shall hereafter consider whether the law of the 20th of October 1777, operated to confiscate or extinguish

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British debts contracted before the war. It is worthy of remembrance that delegates and representatives were elected, by the people of the several counties and corporations of Virginia to meet in general convention for the purpose of framing a new government by the authority of the people only, and that the said convention met on 6 May and continued in session until 5 July, 1776, and in virtue of their delegated power, established a constitution or form of government to regulate and determine by whom and in what manner the authority of the people of Virginia was thereafter to be executed. As the people of that country were the genuine source and fountain of all power that could be rightfully exercised within its limits, they had therefore an unquestionable right to grant it to whom they pleased and under what restrictions or limitations they thought proper.

The people of Virginia, by their constitution or fundamental law, granted and delegated all their supreme civil power to a legislature, and executive, and a judiciary -- the first to make, the second to execute, and the last to declare or expound the laws of the commonwealth. This abolition of the old government and this establishment of a new one was the highest act of power that any people can exercise. From the moment the people of Virginia exercised this power, all dependence on and connection with Great Britain absolutely and forever ceased, and no formal declaration of independence was necessary, although a decent respect for the opinions of mankind required a declaration of the causes which impelled the separation, and was proper to give notice of the event to the nations of Europe. I hold it as unquestionable that the Legislature of Virginia established, as I have stated, by the authority of the people was forever thereafter invested with the supreme and sovereign power of the state and with authority to make any laws in their discretion, to affect the lives, liberties, and property of all the citizens of that commonwealth, with this exception only -- that such laws should not be repugnant to the Constitution, or fundamental law, which could be subject only to the control of the body of the nation, in cases not to be defined and which will always provide for themselves. The legislative power of every nation can only be restrained by its own constitution, and it is the duty of its courts of justice not to question the validity of any law made in pursuance of the Constitution. There is no question but the Act of the Virginia Legislature of 20 October, 1777, was within the authority granted to them by the people of that country, and this being admitted, it is a necessary result that the law is obligatory on the courts of Virginia, and, in my opinion, on the courts of the United States. If Virginia as a sovereign state, violated the ancient or modern

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law of nations in making the law of 29 October 1777, she was answerable in her political capacity to the British nation, whose subjects have been injured in consequence of that law. Suppose a general right to confiscate British property is admitted to be in Congress, and Congress had confiscated all British property within the United States, including private debts; would it be permitted to contend in any court of the United States that Congress had no power to confiscate such debts by the modern law of nations? If the right is conceded to be in Congress, it necessarily follows that it is the judge of the exercise of the right, as to the extent, mode, and manner. The same reasoning is strictly applicable to Virginia, is considered a sovereign nation, provided it had not delegated such power to Congress before the making of the law of October, 1777, which I will hereafter consider.

In June, 1776, the Convention of Virginia formally declared that Virginia was a free, sovereign, and independent state, and on 4 July, 1776, following, the United States, in Congress assembled, declared the Thirteen United Colonies free and independent states, and that as such they had full power to levy war, conclude peace, etc. I consider this as a declaration not that the United Colonies jointly, in a collective capacity, were independent states, etc., but that each of them was a sovereign and independent state -- that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power upon earth.

Before these solemn acts of separation from the Crown of Great Britain, the war between Great Britain and the United Colonies, jointly and separately, was a civil war; but instantly on that great and ever memorable event, the war changed its nature and became a public war between independent governments, and immediately thereupon all the rights of public war (and all the other rights of an independent nation) attached to the government of Virginia, and all the former political connection between Great Britain and Virginia, and also between their respective subjects, were totally dissolved, and not only the two nations, but all the subjects of each, were in a state of war, precisely as in the present war between Great Britain and France. Vatt. Lib. 3, c.18; s. 292-295; lib. 3., c. 5, s.70, 72 and 73.

From 4 July, 1776, the American states were de facto, as well as de jure in the possession and actual exercise of all the rights of independent governments. On 6 February, 1778, the King of France entered into a treaty of alliance with the United States, and on 8 Oct., 1782, a Treaty of Amity and Commerce was concluded between the United States and the States General of the United Provinces. I have ever

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considered it as the established doctrine of the United States that its independence originated from and commenced with the declaration of Congress on 4 July, 1776, and that no other period can be fixed on for its commencement, and that all laws made by the legislatures of the several states after the Declaration of Independence were the laws of sovereign and independent governments.

That Virginia was part of the dismembered British empire can, in my judgment, make no difference in the case. No such distinction is taken by Vattel (or any other writer), but Vattel, when considering the rights of war between two parties absolutely independent, and no longer acknowledging a common superior (precisely the case in question), thus expresses himself, Lib. 3, c. 18, s. 295.

"In such case, the state is dissolved and the war between the two parties in every respect is the same with that of a public war between two different nations."

And Vattel denies that subjects can acquire property in things taken during a civil war.

That the creditor and debtor were members of the same empire when the debt was contracted cannot (in my opinion) distinguish the case for the same reasons. A most arbitrary claim was made by the Parliament of Great Britain to make laws to bind the people of America in all cases whatsoever, and the King of Great Britain, with the approbation of Parliament, employed not only the national forces, but hired foreign mercenaries to compel submission to this absurd claim of omnipotent power. The resistance against this claim was just, and independence became necessary, and the people of the United States announced to the people of Great Britain "that they would hold them, as the rest of mankind, enemies in war, in peace, friends." On the declaration of independence, it was in the option of any subject of Great Britain to join their brethren in America or to remain subjects of Great Britain. Those who joined us were entitled to all the benefits of our freedom and independence, but those who elected to continue subjects of Great Britain exposed themselves to any loss that might arise therefrom. By their adhering to the enemies of the United States, they voluntarily became parties to the injustice and oppression of the British government, and they also contributed to carry on the war and to enslave their former fellow citizens. As members of the British government, from their own choice, they became personally answerable for the conduct of that government, of which they remained a part, and their property, wherever found (on land or water) became liable to confiscation. On this ground, Congress, on 24 of July, 1776, confiscated any British property taken on the seas. See 2 Ruth.Inst., lib. 2, c.9, s.13, p. 531-559; Vatt.

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lib. 2, c.7, s.81, &c.; 18, s. 344; lib. 3, c. 5, s.74, &c., 9, s. 161 & 193.

The British creditor, by the conduct of his sovereign, became an enemy to the Commonwealth of Virginia, and thereby his debt was forfeitable to that government as a compensation for the damages of an unjust war.

It appears to me that every nation at war with another is justifiable, by the general and strict law of nations, to seize and confiscate all moveable property of its enemy (of any kind or nature whatsoever) wherever found, whether within its territory or not. Bynkershoek, Q. 1, P. de rebus bellicis, Lib. 1, c. 7, 175, thus delivers his opinion.

"Cum ea sit belli conditiout hostes sint, omni jure, spoliati proscriptique, rationis est, quascunque res hostium, apud hostes inventas, Dominum mutare, et Fisco cedere. Since it is a condition of war that enemies, by every right, may be plundered and seized upon, it is reasonable that whatever effects of the enemy are found with us who are his enemy should change their master and be confiscated or go into the treasury."

S.P. Lee on Capt., c. 8., p. 111; S.P. 2 Burn., p. 209, s.12, p.219; s. 2, p. 221, s.11. Bynkershoek, the same book and chapter, page 177, thus expresses himself:

"Quod dixi de actionibus recte publicandis ita demum obtinet. Si quod subditi nostri hostibus nostris debent, princeps a subditis juis, revera exegerit. Si exegerit recte solutum est, si non exegerit, pace facta, reviviscit jus pristinum creditoris; quia occupatio, quae bello fit, magis in facto, quam in potestate juris consistit. Nomina igitur, non exacta, tempore belli quodammodo intermori videntur, sed per pacem, genere quodam postliminii, ad priorem dominum reverti. Secundum haec inter gentes fere convenit ut nominibus bello publicatis, pace deinde facta, exasta censeantur periisse, et maneant extincta; non autem exacta reviviscant, et restituantur veris creditoribus."

"What I have said of things in action being rightfully confiscated holds thus: if the prince truly exacts from his subjects what they owed to the enemy; if he shall have exacted it, it is rightfully paid, if he shall not have exacted it, peace being made, the former right of the creditor revives, because the seizure which is made during war consists more in fact than in right. Debts, therefore, not exacted seem as it were to be forgotten in time of war, but upon peace, by a kind of postliminy, return to their former proprietor. Accordingly, it is for the most part agreed among nations that things in action, being confiscated in war, the peace being made, those which were paid are deemed to have perished, and remain extinct; but those not paid revive, and are restored to their true creditors. Vatt. lib. 4, s. 22. S.P. Lee on Capt., c. 8, p 118. "

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That this is the law of nations as held in Great Britain appears from Sir Thomas Parker, p. 267 (II William 3rd), in which it was determined that choses in action belonging to an alien enemy are forfeitable to the Crown of Great Britain, but there must be a commission and inquisition to entitle the Crown, and if peace is concluded before inquisition taken, it discharges the cause of forfeiture.

The right to confiscate the property of enemies during war is derived from a state of war, and is called the rights of war. This right originates from self-preservation, and is adopted as one of the means to weaken an enemy and to strengthen ourselves. Justice also is another pillar on which it may rest, to-wit, a right to reimburse the expense of an unjust war. Vatt. lib. 3, c.8, s. 138 &c.; 9, s. 161.

But it is said if Virginia had a right to confiscate British property, yet by the modern law and practice of European nations she was not justified in confiscating debts due from her citizens to subjects of Great Britain -- that is, private debts. Vattel is the only author relied on (or that can be found) to maintain the distinction between confiscating private debts and other property of an enemy. He admits the right to confiscate such debts if the term of payment happen in the time of war, but this limitation on the right is nowhere else to be found. His opinion alone will not be sufficient to restrict the right to that case only. It does not appear in the present case whether the time of payment happened before or during the war. If this restriction is just, the plaintiff ought to have shown the fact. Vattel adds,

"at present, in regard to the advantages and safety of commerce, all the sovereigns of Europe have departed from this 'rigor,' and this custom has been generally received, and he who should act contrary to it (the custom) would injure the public faith."

From these expressions it may be fairly inferred that, by the "rigor" of the law of nations, private debts to enemies might be confiscated, as well as any other of their property, but that a general custom had prevailed in Europe to the contrary, founded on commercial reasons. The law of nations may be considered of three kinds -- to-wit, general, conventional, or customary. The first is universal, or established by the general consent of mankind, and binds all nations. The second is founded on express consent, and is not universal, and only binds those nations that have assented to it. The third is founded on tacit consent, and is only obligatory on those nations which have adopted it. The relaxation or departure from the strict rights of war to confiscate private debts by the commercial nations of Europe was not binding on the State of Virginia, because founded on custom only, and she was at liberty to reject or adopt the custom as she pleased.

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The conduct of nations at war is generally governed and limited by their exigencies and necessities. Great Britain could not claim from the United States, or any of them, any relaxation of the general law of nations during the late war, because she did not consider it as a civil war, and much less as a public war, but she gave it the odious name of rebellion; and she refused to the citizens of the United States the strict rights of ordinary war.

It cannot be forgotten that the Parliament of Great Britain, by statute (16 Geo. III, c. 5, in 1776) declared that the vessels and cargoes belonging to the people of Virginia and the twelve other colonies found and taken on the high seas should be liable to seizure and confiscation as the property of open enemies, and that the mariners and crews should be taken and considered as having voluntarily entered into the service of the King of Great Britain, and that the killing and destroying the persons and property of the Americans, before the passing this act, was just and lawful. And it is well known that in consequence of this statute, very considerable property of the citizens of Virginia was seized on the high seas and confiscated, and that other considerable property found within that commonwealth was seized and applied to the use of the British army or navy. Vattel lib. 3, c.12, sec. 191, says, and reason confirms his opinion, "That whatever is lawful for one nation to do, in time of war is lawful for the other." The law of nations is part of the municipal law of Great Britain, and by her laws all moveable property of enemies found within the kingdom is considered as forfeited to the Crown, as the head of the nation, but if no inquisition is taken to ascertain the owners to be alien enemies before peace takes place, the cause of forfeiture is discharged by the peace ipso facto. Sir Thomas Parker, p. 267. This doctrine agrees with Bynk. lib. 1, c. 7, p. 177, and Lee on Capt., ch. 8, p. 118, that debts not confiscated and paid revive on peace. Lee says,

"Debts, therefore, which are not taken hold of seem, as it were, suspended and forgotten in time of war, but by a peace return to their former proprietor by a kind of postliminy."

Mr. Lee, who wrote since Vattel, differs from him in opinion that private debts are not confiscable, p. 114. He thus delivers himself:

"By the law of nations, rights and credits are not less in our power than other goods; why, therefore, should we regard the rights of war in regard to one and not as to the other? And when nothing occurs which gives room for a proper distinction, the general law of nations ought to prevail."

He gives many examples of confiscating debts, and concludes (p. 119) "All which prove that not only actions, but all

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other things whatsoever, are forfeited in time of war, and are often exacted."

Great Britain does not consider herself bound to depart from the rigor of the general law of nations because the commercial powers of Europe wish to adopt a more liberal practice. It may be recollected that it is an established principle of the law of nations "that the goods of a friend are free in an enemy's vessel, and an enemy's goods lawful prize in the vessel of a friend." This may be called the general law of nations. In 1780, the Empress of Russia proposed a relaxation of this rigor of the laws of nations, "That all the effects belonging to the subjects of the belligerent powers shall be free on board neutral vessels except only contraband articles." This proposal was acceded to by the neutral powers of Sweden, Denmark, the States General of the United Provinces, Prussia, and Portugal; France and Spain, two of the powers at war, did not oppose the principle, and Great Britain only declined to adopt it, and she still adheres to the rigorous principle of the law of nations. Can this conduct of Great Britain be objected to her as an uncivilized and barbarous practice? The confiscating private debts by Virginia has been branded with those terms of reproach, and very improperly, in my opinion.

It is admitted that Virginia could not confiscate private debts without a violation of the modern law of nations; yet if in fact she has so done, the law is obligatory on all the citizens of Virginia and on her courts of justice, and in my opinion on all the courts of the United States. If Virginia by such conduct violated the law of nations, she was answerable to Great Britain, and such injury could only be redressed in the treaty of peace. Before the establishment of the national government, British debts could only be sued for in the state court. This alone proves that the several states possessed a power over debts. If the Crown of Great Britain had, according to the mode of proceeding in that country, confiscated or forfeited American debts, would it have been permitted in any of the courts of Westminster Hall to have denied the right of the Crown and that its power was restrained by the modern law of nations? Would it not have been answered that the British nation was to justify her own conduct, but that her courts were to obey her laws.

It appears to me that there is another and conclusive ground which effectually precluded any objection, since the peace, on the part of Great Britain, as a nation, or on the part of any of her subjects, against the right of Virginia to confiscate British debts or any other British property during the war, even on the admission that such confiscation was in violation of the ancient or modern law of nations.

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If the Legislature of Virginia confiscated or extinguished the debt in question by the law of 20 October, 1777, as the defendants in error contend, this confiscation or extinguishment took place in 1777, flagrante bello, and the definitive treaty of peace was ratified in 1783. What effects flow from a treaty of peace, even if the confiscation or extinguishment of the debt was contrary to the law of nations and the stipulation in the 4th article of the treaty does not provide for the recovery of the debt in question?

I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded, neither the matter in dispute nor the conduct of either party during the war can ever be revived or brought into contest again. All violences, injuries, or damages sustained by the government or people of either during the war are buried in oblivion, and all those things are implied by the very treaty of peace, and therefore not necessary to be expressed. Hence it follows that the restitution of or compensation for British property confiscated or extinguished during the war by any of the United States could only be provided for by the treaty of peace, and if there had been no provision respecting these subjects in the treaty, they could not be agitated after the treaty by the British government, much less by her subjects in courts of justice. If a nation, during a war, conducts itself contrary to the law of nations and no notice is taken of such conduct in the treaty of peace, it is thereby so far considered lawful as never afterwards to be revived or to be a subject of complaint.

Vattel lib. 4, sec. 21, 121, says

"The state of things at the instant of the treaty is held to be legitimate, and any change to be made in it requires an express specification in the treaty; consequently all things not mentioned in the treaty are to remain as they were at the conclusion of it. All the damages caused during the war are likewise buried in oblivion, and no plea is allowable for those the reparation of which is not mentioned in the treaty. They are looked on as if they had never happened."

The same principle applies to injuries done by one nation to another on occasion of and during the war. See Grotius, lib. 3, c. 8, sec. 4.

The Baron De Wolfuis, p. 1222, says, "De quibus nihil dictum ca manent quo sunt loco." Things of which nothing is said remain in the state in which they are.

It is the opinion of the celebrated and judicious Doctor Rutherforth that a nation in a just war may seize upon any moveable goods of an enemy (and he makes no distinction as to private debts), but that whilst the war continues, the nation has, of right, nothing but the custody of the goods taken, and

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if the nation has granted to private captors (as privateers) the property of goods taken by them, and on peace restitution is agreed on, that the nation is obliged to make restitution, and not the private captors, and if on peace no restitution is stipulated, that the full property of moveable goods taken from the enemy during the war passes, by tacit consent, to the nation that takes them. This I collect as the substance of his opinion in lib. 2, c. 9, from pp. 558-573.

I shall conclude my observations on the right of Virginia to confiscate any British property by remarking that the validity of such a law would not be questioned in the Court of Chancery of Great Britain, and I confess the doctrine seemed strange to me in an American court of justice. In the case of Wright v. Nutt, Lord Chancellor Thurlow declared that he considered an act of the State of Georgia, passed in 1782, for the confiscation of the real and personal estate of Sir James Wright and also his debts as a law of an independent country, and concluded with the following observation, that the law of every country must be equally regarded in the courts of justice of Great Britain, whether the law was a barbarous or civilized institution or wise or foolish. H. Black, p. 149. In the case of Folliot v. Ogden, Lord Loughborough, Chief Justice of the Court of Common Pleas, in delivering the judgment of the court, declared

"That the act of the State of New York, passed in 1779, for attainting, forfeiting, and confiscating the real and personal estate of Folliott, the plaintiff, was certainly of as full validity as the act of any independent state. H. Black, p. 135."

On a writ of error, Lord Kenyon, Chief Justice of the Court of King's Bench, and Judge Grose delivered direct contrary sentiments, but Judges Asburst and Buller were silent. 3 Term 726.

From these observations and the authority of Bynkersboek, Lee, Burlamaque, and Rutherforth I conclude that Virginia had a right, as a sovereign and independent nation, to confiscate any British property within its territory unless she had before delegated that power to Congress, which Mr. Lewis contended she had done. The proof of the allegation that Virginia had transferred this authority to Congress lies on those who make it, because if she had parted with such power, it must be conceded that she once rightfully possessed it.

It has been inquired what powers Congress possessed from the first meeting in September, 1774, until the ratification of the Articles of Confederation on 1 March, 1781? It appears to me that the powers of Congress during that whole period were derived from the people they represented, expressly given, through the medium of their state conventions or state legislatures, or that after they were exercised, they were

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impliedly ratified by the acquiescence and obedience of the people. After the confederacy was completed, the powers of Congress rested on the authority of the state legislatures and the implied ratifications of the people, and was a government over governments. The powers of Congress originated from necessity, and arose out of, and were only limited by, events, or in other words they were revolutionary in their very nature. Their extent depended on the exigencies and necessities of public affairs. It was absolutely and indispensably necessary that Congress should possess the power of conducting the war against Great Britain, and therefore if not expressly given by all (as it was by some of the states), I do not hesitate to say that Congress did rightfully possess such power. The authority to make war of necessity implies the power to make peace, or the war must be perpetual. I entertain this general idea -- that the several states retained all internal sovereignty, and that Congress properly possessed the great rights of external sovereignty -- Among others, the right to make treaties of commerce and alliance, as with France on 6 February 1778. In deciding on the powers of Congress and of the several states before the confederation, I see but one safe rule -- namely that all the powers actually exercised by Congress before that period were rightfully exercised, on the presumption not to be controverted, that they were so authorized by the people they represented by an express, or implied grant, and that all the powers exercised by the state conventions or state legislatures were also rightfully exercised on the same presumption of authority from the people. That Congress did not possess all the powers of war is self-evident from this consideration alone that she never attempted to lay any kind of tax on the people of the United States, but relied altogether on the state legislatures to impose taxes, to raise money to carry on the war, and to sink the emissions of all the paper money issued by Congress. It was expressly provided in the 8th article of the confederation that

"All charges of war (and all other expenses for the common defense and general welfare) and allowed by Congress shall be defrayed out of a common treasury, to be supplied by the several states in proportion to the value of the land in each state, and the taxes for paying the said proportion shall be levied by the legislatures of the several states."

In every free country the power of laying taxes is considered a legislative power over the property and persons of the citizens, and this power the people of the United States granted to their state legislatures, and they neither could nor did transfer it to Congress, but on the contrary they expressly stipulated that it should remain with them. It is an incontrovertible fact that Congress never attempted to confiscate

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any kind of British property within the United States (except what their army, or vessels of war captured), and thence I conclude that Congress did not conceive the power was vested in it. Some of the states did exercise this power, and thence I infer they possessed it. On 23 March, 3 April, and 24 July, 1776, Congress confiscated British property, taken on the high seas. See the Ordinance of 30 November, 1781. See also the Resolution of 23 November, 1781, in which Congress recommended to the states to pass laws to punish infractions of the law of nations.

The second point made by the counsel for the plaintiff in error was "if the Legislature of Virginia had a right to confiscate British debts, yet it did not exercise that right by the act of 20 October, 1777." If this objection is well founded, the plaintiff in error must have judgment for the money covered by the plea of that law and the payment under it. The preamble recites that the public faith and the law and the usage of nations require that debts incurred during the connection with Great Britain should not be confiscated. No language can possibly be stronger to express the opinion of the Legislature of Virginia that British debts ought not to be confiscated, and if the words or effect and operation of the enacting clause are ambiguous or doubtful, such construction should be made as not to extend the provisions in the enacting clause beyond the intention of the legislature so clearly expressed in the preamble; but if the words in the enacting clause in their nature, import, and common understanding are not ambiguous, but plain and clear, and their operation and effect certain, there is no room for construction. It is not an uncommon case for a legislature in a preamble to declare its intention to provide for certain cases or to punish certain offenses, and in enacting clauses to include other cases and other offenses. But I believe very few instances can be found in which the legislature declared that a thing ought not to be done and afterwards did the very thing it reprobated. There can be no doubt that strong words in the enacting part of a law may extend it beyond the preamble. If the preamble is contradicted by the enacting clause as to the intention of the legislature, it must prevail on the principle that the legislature changed its intention.

I am of opinion that the law of 20 October, 1777, and the payment in virtue thereof, amounts either to a confiscation or extinguishment of so much of the debt as was paid into the loan office of Virginia.

1st. The law makes it lawful for a citizen of Virginia indebted to a subject of Great Britain

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to pay the whole or any part of his debt into the loan office of that commonwealth.

2nd. It directs the debtor to take a certificate of his payment and to deliver it to the governor and the council, and it declares that the receipt of the governor and the council for the certificate shall discharge him (the debtor) from so much of the debt as he paid into the loan office.

3rd. It enacts that the certificate shall be subject to the future direction of the legislature.

And 4th, it provides that the governor and council may make such allowance as they shall think reasonable out of the interest of the money paid to the wives and children residing within the state of such creditor. The payment by the debtor into the loan office is made a lawful act. The public receives the money, and they discharge the debtor and they make the certificate (which is the evidence of the payment) subject to their direction, and they benevolently appropriate part of the money paid, to-wit, the interest of the debt, to such of the family of the creditor as may live within the state. All these acts are plainly a legislative interposition between the creditor and debtor, annihilates the right of the creditor, and is an exercise of the right of ownership over the money, for the giving part to the family of the creditor, under the restriction of being residents of the state, or to a stranger can make no difference. The government of Virginia had precisely the same right to dispose of the whole, as of part of the debt. Whether all these acts amount to a confiscation of the debt or not may be disputed according to the different ideas entertained of the proper meaning of the word "confiscation." I am inclined to think that all these acts, collectively considered, are substantially a confiscation of the debt. The verb "confiscate" is derived from the Latin, con, with, and fiscus, a basket or hamper in which the emperor's treasure was formerly kept. The meaning of the word to "confiscate" is to transfer property from private to public use, or to forfeit property to the prince or state. In the language of Mr. Lee, p. 118, the debt was taken hold of, and this he considers as confiscation. But if, strictly speaking, the debt was not confiscated, yet it certainly was extinguished as between the creditor and debtor; the debt was legally paid, and of consequence extinguished. The state interfered and received the debt and discharged the debtor from his creditor, and not from the state, as suggested. The debtor owed nothing to the State of Virginia, but she had a right to take the debt or not at her pleasure. To say that the discharge was from the state, and not from the debtor, implies that the debtor was under some obligation or duty to pay the state what he owed his British creditor. If the debtor was to remain charged to his creditor notwithstanding his payment, not one farthing would have been

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paid into the loan office. Such a construction, therefore, is too violent, and not to be admitted. If Virginia had confiscated British debts and received the debt in question, and said nothing more, the debtor would have been discharged by the operation of the law. In the present case, there is an express discharge on payment, certificate, and receipt.

It appears to me that the plea by the defendant of the act of assembly and the payment agreeably to its provisions, which is admitted, is a bar to the plaintiff's action for so much of his debt as he paid into the loan office unless the plea is avoided or destroyed by the plaintiff's replication of the fourth article of the Definitive Treaty of Peace between Great Britain and the United States on 3 September, 1783.

The question, then, may be stated thus: whether the 4th article of the said treaty nullifies the law of Virginia, passed on 20 October, 1777, destroys the payment made under it, and revives the debt and gives a right of recovery thereof against the original debtor?

It was doubted by one of the counsel for the defendants in error (Mr. Marshall) whether Congress had a power to make a treaty that could operate to annul a legislative act of any of the states and to destroy rights acquired by or vested in individuals in virtue of such acts. Another of the defendant's counsel (Mr. Campbell) expressly and with great zeal denied that Congress possessed such power.

But a few remarks will be necessary to show the inadmissibility of this objection to the power of Congress.

1st. The legislatures of all the states, have often exercised the power of taking the property of its citizens for the use of the public, but they uniformly compensated the proprietors. The principle to maintain this right is for the public good, and to that the interest of individuals must yield. The instances are many, and among them are lands taken for forts, magazines, or arsenals, or for public roads or canals, or to erect towns.

2nd. The legislatures of all the states have often exercised the power of divesting rights vested, and even of impairing and in some instances of almost annihilating the obligation of contracts, as by tender laws, which made an offer to pay and a refusal to receive paper money for a specie debt, an extinguishment to the amount tendered.

3rd. If the Legislature of Virginia could by a law annul any former law, I apprehend that the effect would be to destroy all rights acquired under the law so nullified.

4th. If the Legislature of Virginia could not by ordinary acts of legislation do these things, yet possessing the supreme sovereign power of the state, she certainly could do them, by a treaty of peace; if she had not parted with the power or making

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such treaty. If Virginia had such power before she delegated it to Congress, it follows that afterwards, that body possessed it. Whether Virginia parted with the power of making treaties of peace will be seen by a perusal of the ninth article of the Confederation (ratified by all the states on 1 March, 1781), in which it was declared

"That the United States in Congress assembled shall have the sole and exclusive right and power of determining on peace, or war, except in the two cases mentioned in the 6th article, and of entering into treaties and alliances, with a proviso, when made, respecting commerce."

This grant has no restriction, nor is there any limitation on the power in any part of the confederation. A right to make peace necessarily includes the power of determining on what terms peace shall be made. A power to make treaties must of necessity imply a power to decide the terms on which they shall be made. A war between two nations can only be concluded by treaty.

Surely the sacrificing public or private property to obtain peace cannot be the cases in which a treaty would be void. Vatt., lib. 2, c. 12, s. 160, 161, 173; lib. 6, c. 2, s. 2. It seems to me that treaties made by Congress, according to the Confederation, were superior to the laws of the states, because the Confederation made them obligatory on all the states. They were so declared by Congress on 13 April, 1787, were so admitted by the legislatures and executives of most of the states, and were so decided by the judiciary of the general government and by the judiciaries of some of the state governments.

If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the Constitution, which provides

"That all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."

There can be no limitation on the power of the people of the United States. By their authority, the state constitutions were made, and by their authority the Constitution of the United States was established, and they had the power to change or abolish the state constitutions or to make them yield to the general government and to treaties made by their authority. A treaty cannot be the supreme law of the land, that is of all the United States, if any act of a state legislature can stand in its way. If the constitution of a state (which is the fundamental law of the state, and paramount to its legislature) must give way to a treaty and fall before it, can it be questioned whether the less power, an act

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of the state legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made by the authority of the United States shall be superior to the constitution and laws of any individual state, and their will alone is to decide. If a law of a state, contrary to a treaty, is not void, but voidable only by a repeal or nullification by a state legislature, this certain consequence follows -- that the will of a small part of the United States may control or defeat the will of the whole. The people of America have been pleased to declare that all treaties made before the establishment of the national Constitution or laws of any of the states contrary to a treaty shall be disregarded.

Four things are apparent on a view of this 6th article of the national Constitution.

1st. That it is retrospective, and is to be considered in the same light as if the Constitution had been established before the making of the treaty of 1783.

2d. That the constitution or laws of any of the states, so far as either of them shall be found contrary to that treaty, are by force of the said article prostrated before the treaty.

3rd. That consequently the treaty of 1783 has superior power to the legislature of any state, because no legislature of any state has any kind of power over the Constitution, which was its creator.

4th. That it is the declared duty of the state judges to determine any constitution or laws of any state contrary to that treaty (or any other) made under the authority of the United States null and void. national or federal judges are bound by duty and oath to the same conduct.

The argument that Congress had not power to make the fourth article of the treaty of peace, if its intent and operation was to annul the laws of any of the states, and to destroy vested rights (which the plaintiff's Council contended to be the object and effect of the fourth article) was unnecessary, but on the supposition that this Court possess a power to decide whether this article of the treaty is within the authority delegated to that body by the Articles of Confederation. Whether this Court constitutionally possess such a power is not necessary now to determine, because I am fully satisfied that Congress was invested with the authority to make the stipulation in the fourth article. If the Court possess a power to declare treaties void, I shall never exercise it but in a very clear case indeed. One further remark will show how very circumspect the Court ought to be before it would decide against the right of Congress to make the stipulation objected to. If Congress had no

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power (under the confederation) to make the fourth article of the treaty, and for want of power that article is void, would it not be in the option of the Crown of Great Britain to say whether the other articles in the same treaty shall be obligatory on the British nation?

I will now proceed to the consideration of the treaty of 1783. It is evident on a perusal of it what were the great and principal objects in view by both parties. There were four on the part of the United States, to-wit, 1st, an acknowledgment of its independence by the Crown of Great Britain; 2d, a settlement of its western bounds; 3d, the right of fishery, and 4th, the free navigation of the Mississippi. There were three on the part of Great Britain, to-wit, 1st, a recovery by British merchants of the value in sterling money of debts contracted by the citizens of America before the treaty; 2d, restitution of the confiscated property of real British subjects and of persons residents in districts in possession of the British forces, and who had not borne arms against the United States, and a conditional restoration of the confiscated property of all other persons, and 3rd, a prohibition of all future confiscations and prosecutions. The following facts were of the most public notoriety at the time when the treaty was made, and therefore must have been very well known to the gentlemen who assented to it. 1st, that British debts, to a great amount, had been paid into some of the state treasuries or loan offices in paper money of very little value, either under laws confiscating debts or under laws authorizing payment of such debts in paper money, and discharging the debtors; 2d, that tender laws had existed in all the states, and that by some of those laws a tender and a refusal to accept by principal or factor was declared an extinguishment of the debt. From the knowledge that such laws had existed there was good reason to fear that similar laws, with the same or less consequences, might be again made (and the fact really happened), and prudence required to guard the British creditor against them; 3, that in some of the states, property of any kind might be paid at an appraisement in discharge of any execution; 4th, that laws were in force in some of the states at the time of the treaty which prevented suits by British creditors; 5th, that laws were in force in other of the states at the time of the treaty to prevent suits by any person for a limited time. All these laws created legal impediments of one kind or another to the recovery of many British debts contracted before the war, and in many cases compelled the receipt of property instead of gold and silver.

To secure the recovery of British debts, it was by the latter part of the 5th article agreed as follows:

"That all persons

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who have any interest in confiscated lands by debts should meet with no lawful impediment in the prosecution of their just rights."

This provision clearly relates to debts secured by mortgages on lands in fee simple which were afterwards confiscated, or to debts on judgments which were a lien on lands, which also were afterwards confiscated, and where such debts on mortgages, or judgments had been paid into the state treasuries and the debtors discharged. This stipulation was absolutely necessary if such debts were intended to be paid. The pledge, or security by lien, had been confiscated and sold. British subjects, being aliens, could neither recover the possession of lands by ejectment nor foreclose the equity of redemption, nor could they claim the money secured by a mortgage or have the benefit of a lien from a judgment if the debtor had paid his debt into the treasury and been discharged. If a British subject in either of those cases prosecuted his just right, it could only be in a court of justice, and if any of the above causes were set up as a lawful impediment, the courts were bound to decide whether this article of the treaty nullified the laws confiscating the lands and also the purchases made under them or the laws authorizing payment of such debts to the state, or whether aliens were enabled by this article to hold lands mortgaged to them before the war. In all these cases it seems to me that the courts in which the cases arose were the only proper authority to decide whether the case was within this article of the treaty and the operation and effect of it. One instance among many will illustrate my meaning. Suppose a mortgagor paid the mortgage money into the public treasury, and afterwards sold the land, would not the British creditor, under this article, be entitled to a remedy against the mortgaged lands?

The fourth article of the treaty is in these words:

"It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts heretofore contracted."

Before I consider this article of the treaty, I will adopt the following remarks, which I think applicable and which may be found in Dr. Rutherforth and Vattel. 2 Ruth. 307 to 315; Vattel, lib. 2, c. 17, s. 263, 271. The intention of the framers of the treaty must be collected from a view of the whole instrument, and from the words made use of by them to express their intention or from probable or rational conjectures. If the words express the meaning of the parties plainly, distinctly and perfectly, there ought to be no other means of interpretation; but if the words are obscure or ambiguous or imperfect, recourse must be had to other means of interpretation, and in these three cases we must collect the meaning from the words

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or from probable or rational conjectures, or from both. When we collect the intention from the words only, as they lie in the writing before us, it is a literal interpretation, and indeed if the words and the construction of a writing are clear and precise, we can scarce call it interpretation to collect the intention of the writer from thence. The principal rule to be observed in literal interpretation is to follow that sense, in respect both of the words and the construction which is agreeable to common use.

If the recovery of the present debt is not within the clear and manifest intention and letter of the fourth article of the treaty, and if it was not intended by it to annul the law of Virginia mentioned in the plea and to destroy the payment under it and to revive the right of the creditor against his original debtor, and if the treaty cannot effect all these things, I think the Court ought to determine in favor of the defendants in error. Under this impression, it is altogether unnecessary to notice the several rules laid down by the counsel for the defendants in error for the construction of the treaty.

I will examine the fourth article of the treaty in its several parts, and endeavor to affix the plain and natural meaning of each part.

To take the fourth article in order as it stands.

1st. "It is agreed" -- that is, it is expressly contracted, and it appears from what follows that certain things shall not take place. This stipulation is direct. The distinction is self-evident between a thing that shall not happen and an agreement that a third power shall prevent a certain thing being done. The first is obligatory on the parties contracting. The latter will depend on the will of another, and although the parties contracting had power to lay him under a moral obligation for compliance, yet there is a very great difference in the two cases. This diversity appears in the treaty.

2nd. "That creditors on either side," without doubt meaning British and American creditors.

3rd. "Shall meet with no lawful impediment" -- that is, with no obstacle (or bar) arising from the common law, or acts of Parliament, or acts of Congress, or acts of any of the states, then in existence or thereafter to be made, that would, in any manner, operate to prevent the recovery of such debts, as the treaty contemplated. A lawful impediment to prevent a recovery of a debt can only be matter of law pleaded in bar to the action. If the word "lawful" had been omitted, the impediment would not be confined to matter of law. The prohibition that no lawful impediment shall be interposed is the same as that all lawful impediments shall be removed. The meaning cannot be satisfied by the removal of one impediment and leaving another, and a

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fortiori by taking away the less and leaving the greater. These words have both a retrospective and future aspect.

4th. "To the recovery" -- that is, to the right of action, judgment, and execution, and receipt of the money, without impediments in courts of justice, which could only be by plea (as in the present case) or by proceedings after judgment to compel receipt of paper money or property instead of sterling money. The word "recovery" is very comprehensive, and operates in the present case to give remedy from the commencement of suit to the receipt of the money.

5th. "In the full value in sterling money" -- that is, British creditors shall not be obliged to receive paper money, or property at a valuation, or anything else but the full value of their debts according to the exchange with Great Britain. This provision is clearly restricted to British debts contracted before the treaty, and cannot relate to debts contracted afterwards, which would be dischargeable according to contract and the laws of the state where entered into. This provision has also a future aspect in this particular -- namely that no lawful impediment, no law of any of the states made after the treaty, shall oblige British creditors to receive their debts, contracted before the treaty, in paper money, or property at appraisement, or in anything but the value in sterling money. The obvious intent of these words was to prevent the operation of past and future tender laws, or past and future laws authorizing the discharge of executions for such debts by property at a valuation.

6th. "Of all bona fide debts" -- that is, debts of every species, kind, or nature, whether by mortgage, if a covenant therein for payment, or by judgments, specialties, or simple contracts. But the debts contemplated were to be bona fide debts -- that is, bona fide contracted before the peace, and contracted with good faith or honestly and without covin and not kept on foot fraudulently. Bona fide is a legal technical expression, and the law of Great Britain and this country has annexed a certain idea to it. It is a term used in statutes in England and in acts of assembly of all the states, and signifies a thing done really, with a good faith, without fraud or deceit or collusion or trust. The words "bona fide" are restrictive, for a debt may be for a valuable consideration and yet not bona fide. A debt must be bona fide at the time of its commencement, or it never can become so afterwards. The words "bona fide" were not prefixed to describe the nature of the debt at the date of the treaty, but the nature of the debt at the time it was contracted. Debts created before the war were almost the only debts in the contemplation of the treaty, although debts contracted during the war were covered by the general provision, taking in debts from the most distant period of time,

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to the date of the treaty. The recovery, where no lawful impediments were to be interposed, was to have two qualifications: 1st. the debts were to be bona fide contracted, and 2d, they were to be contracted before the peace.

7th. "Heretofore contracted" -- that is, entered into at any period of time before the date of the treaty, without regard to the length or distance of time. These words are descriptive of the particular debts that might be recovered, and relate back to the time such debts were contracted. The time of the contract was plainly to designate the particular debts that might be recovered. A debt entered into during the war would not have been recoverable unless under this description of a debt contracted at any time before the treaty.

If the words of the fourth article, taken separately, truly bear the meaning I have given them, their sense collectively cannot be mistaken, and must be the same.

The next inquiry is whether the debt in question is one of those described in this article. It is very clear that the article contemplated no debts but those contracted before the treaty, and no debts but only those to the recovery whereof some lawful impediment might be interposed. The present debt was contracted before the war, and to the recovery of it a lawful impediment, to-wit, a law of Virginia and payment under it, is pleaded in bar. There can be no doubt that the debt sued for is within the description if I have given a proper interpretation of the words. If the treaty had been silent as to debts and the law of Virginia had not been made, I have already proved that debts would, on peace, have revived by the law of nations. This alone shows that the only impediment to the recovery of the debt in question is the law of Virginia, and the payment under it, and the treaty relates to every kind of legal impediment.

But it is asked did the fourth article intend to annul a law of the states and destroy rights acquired under it?

I answer that the fourth article did intend to destroy all lawful impediments, past and future, and that the law of Virginia, and the payment under it, is a lawful impediment, and would bar a recovery if not destroyed by this article of the treaty. This stipulation could not intend only to repeal laws that created legal impediments, to the recovery of the debt (without respect to the mode of payment), because the mere repeal of a law would not destroy acts done and rights acquired under the law during its existence and before the repeal. This right to repeal was only admitted by the counsel for the defendants in error because a repeal would not affect their case; but on the same ground that a treaty can repeal a law of the state, it can nullify it. I have already proved that a treaty can totally annihilate

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any part of the constitution of any of the individual states that is contrary to a treaty. It is admitted that the treaty intended and did annul some laws of the states, to-wit any laws, past or future, that authorized a tender of paper money to extinguish or discharge the debt, and any laws, past or future, that authorized the discharge of executions by paper money or delivery of property at appraisement, because if the words "sterling money" have not this effect, it cannot be shown that they have any other. If the treaty could nullify some laws, it will be difficult to maintain that it could not equally annul others.

It was argued that the fourth article was necessary to revive debts which had not been paid, as it was doubtful whether debts not paid would revive on peace by the law of nations. I answer that the fourth article was not necessary on that account, because there was no doubt that debts not paid do revive by the law of nations, as appears from Bynkershock, Lee, and Sir Thomas Parker. And if necessary, this article would not have this effect, because it revives no debts but only those to which some legal impediment might be interposed, and there could be no legal impediment or bar to the recovery, after peace, of debts not paid during the war to the state.

It was contended that the provision is that creditors shall recover, etc., and there was no creditor at the time of the treaty, because there was then no debtor, he having been legally discharged. The creditors described in the treaty were not creditors generally, but only those with whom debts had been contracted at some time before the treaty, and is a description of persons, and not of their rights. This adhering to the letter is to destroy the plain meaning of the provision, because if the treaty does not extend to debts paid into the state treasuries or loan offices, it is very clear that nothing was done by the treaty as to those debts, not even so much as was stipulated for royalists and refugees, to-wit, a recommendation of restitution. Further, by this construction, nothing was done for British creditors, because the law of nations secured a recovery of their debts, which had not been confiscated and paid to the states, and if the debts paid in paper money of little value into the state treasuries or loan offices were not to be paid to them, the article was of no kind of value to them, and they were deceived. The article relates either to debts not paid or to debts paid into the treasuries or loan offices. It has no relation to the first, for the reasons above assigned, and if it does not include the latter, it relates to nothing.

It was said that the treaty secured British creditors from payment in paper money. This is admitted, but it is by force

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and operation of the words "in sterling money," but then the words, "heretofore contracted," are to have no effect whatsoever, and it is those very words, and those only, that secure the recovery of the debts paid to the states, because no lawful impediment is to be allowed to prevent the recovery of debts contracted at any time before the treaty.

But it was alleged that the fourth article only stipulates that there shall be no lawful impediment, etc., but that a law of the state was first necessary to annul the law creating such impediment, and that the state is under a moral obligation to pass such a law, but until it is done, the impediment remains.

I consider the fourth article in this light -- that it is not a stipulation that certain acts shall be done and that it was necessary for the legislatures of individual states to do those acts, but that it is an express agreement that certain things shall not be permitted the American courts of justice, and that it is a contract on behalf of those courts that they will not allow such acts to be pleaded in bar to prevent a recovery of certain British debts. "Creditors are to meet with no lawful impediment, etc." As creditors can only sue for the recovery of their debts in courts of justice, and it is only in courts of justice that a legal impediment can be set up by way of plea in bar of their actions, it appears to me that the courts are bound to overrule every such plea if contrary to the treaty. A recovery of a debt can only be prevented by a plea in bar to the action. A recovery of a debt in sterling money can only be prevented by a like plea in bar to the action, as tender and refusal, to operate as an extinguishment. After judgment, payment thereof in sterling money can only be prevented by some proceedings under some law that authorizes the debtor to discharge an execution in paper money or in property at a valuation. In all these and similar cases, it appears to me that the courts of the United States are bound by the treaty to interfere. No one can doubt that a treaty may stipulate that certain acts shall be done by the legislature; that other acts shall be done by the Executive, and others by the Judiciary. In the sixth article it is provided that no future prosecutions shall be commenced against any person for or by reason of the part he took in the war. Under this article, the American courts of justice discharged the prosecutions and the persons on receipt of the treaty and the proclamation of Congress. 1 U. S. 1 U.S. 233.

If a law of the state to annul a former law was first necessary, it must be either on the ground that the treaty could not annul any law of a state or that the words used in the treaty were not explicit or effectual for that purpose. Our federal Constitution establishes the power of a treaty over the constitution

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and laws of any of the states, and I have shown that the words of the fourth article were intended, and are sufficient to nullify the law of Virginia and the payment under it. It was contended that Virginia is interested in this question, and ought to compensate the defendants in error, if obliged to pay the plaintiff under the treaty. If Virginia had a right to receive the money, which I hope I have clearly established, by what law is she obliged to return it? The treaty only speaks of the original debtor, and says nothing about a recovery from any of the states.

It was said that the defendant ought to be fully indemnified if the treaty compels him to pay his debt over again, as his rights have been sacrificed for the benefit of the public.

That Congress had the power to sacrifice the rights and interests of private citizens to secure the safety or prosperity of the public I have no doubt, but the immutable principles of justice, the public faith of the states that confiscated and received British debts, pledged to the debtors, and the rights of the debtors violated by the treaty all combine to prove that ample compensation ought to be made to all the debtors who have been injured by the treaty for the benefit of the public. This principle is recognized by the Constitution, which declares "that private property shall not be taken for public use without just compensation". See Vattel, lib. 1, c. 20, s. 244.

Although Virginia is not bound to make compensation to the debtors, yet it is evident that they ought to be indemnified, and it is not to be supposed that those whose duty it may be to make the compensation will permit the rights of our citizens to be sacrificed to a public object without the fullest indemnity.

On the best investigation I have been able to give the fourth article of the treaty, I cannot conceive that the wisdom of men could express their meaning in more accurate and intelligible words or in words more proper and effectual to carry their intention into execution. I am satisfied that the words, in their natural import, and common use, give a recovery to the British creditor from his original debtor of the debt contracted before the treaty, notwithstanding the payment thereof into the public treasuries or loan offices under the authority of any state law, and therefore I am of opinion that the judgment of the circuit court ought to be reversed and that judgment ought to be given on the demurrer, for the plaintiff in error, with the costs in the circuit court, and the costs of the appeal.

PATERSON, JUSTICE.

The present suit is instituted on a bond bearing date 7 July, 1774, and executed by Daniel Lawrence Hylton & Co. and Francis Eppes, citizens of the State of Virginia, to Joseph Farrel and William Jones, subjects

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of the King of Great Britain, for the payment of £2,976 11s. 6d. British, or sterling, money.

The defendants, among other pleas, pleaded

1st. Payment, on which issue is joined.

2d. That $3,111 1/9, equal to £933 14s., part of the debt mentioned in the declaration, were, on 26 April, 1780, paid by them into the loan office of Virginia pursuant to an act of that state passed 20 October, 1777, entitled

"An act for sequestering British property, enabling those indebted to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties."

The material section of the act is recited in the plea.

To this plea the plaintiffs reply and set up the fourth article of the treaty, made 3 September 1783, between the United States and his Britannic Majesty and the Constitution of the United States, making treaties the supreme law of the land.

The rejoinder sets forth that the debt in the declaration mentioned, or so much thereof as is equal to the sum of £933 14s., was not a bona fide debt due and owing to the plaintiffs on 3 September, 1783, because the defendants had, on 26 April, 1780, paid in part thereof the sum of $3,111 1/9 into the loan office of Virginia, and obtained a certificate and receipt therefor pursuant to the directions of the said act; without that, that the said treaty of peace, and the Constitution of the United States entitle the plaintiffs to maintain their action against the defendants for so much of the said debt in the declaration mentioned as is equal to £933 14s.

To this rejoinder the plaintiffs demur.

The defendants join in demurrer.

On this issue in law, judgment was entered for the defendants in the Circuit Court for the District of Virginia. A writ of error has been brought, and the general errors are assigned.

The question is whether the judgment rendered in the circuit court be erroneous. I shall not pursue the range of discussion which was taken by the counsel on the part of the plaintiffs in error. I do not deem it necessary to enter on the question whether the Legislature of Virginia had authority to make an act confiscating the debts due from its citizens to the subjects of the King of Great Britain, or whether the authority in such case was exclusively in Congress. I shall read and make a few observations on the act, which has been pleaded in bar, and then pass to the consideration of the fourth

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article of the treaty. The first and third sections are the only parts of the act necessary to be considered.

"1st. Whereas divers persons, subjects of Great Britain, had, during our connection with that kingdom, acquired estates, real and personal, within this commonwealth, and had also become entitled to debts to a considerable amount, and some of them had commenced suits for the recovery of such debts before the present troubles had interrupted the administration of justice, which suits were at that time depending and undetermined, and such estates being acquired and debts incurred, under the sanction of the laws and of the connection then subsisting, and it not being known that their sovereign hath as yet set the example of confiscating debts and estates under the like circumstances, the public faith, and the law and usages of nations require that they should not be confiscated on our part, but the safety of the United States demands, and the same law and usages of nations will justify, that we should not strengthen the hands of our enemies during the continuance of the present war by remitting to them the profits or proceeds of such estates or the interest or principal of such debts."

"3d. And be it further enacted that it shall and may be lawful for any citizen of this commonwealth owing money to a subject of Great Britain to pay the same, or any part thereof, from time to time, as he shall think fit, into the said loan office, taking thereout a certificate for the same in the name of the creditor, with an endorsement under the hand of the commissioner of the said office expressing the name of the payer, and shall deliver such certificate to the Governor and Council, whose receipt shall discharge him from so much of the debt. And the Governor and Council shall in like manner lay before the general assembly, once in every year, an account of these certificates, specifying the names of the persons by and for whom they were paid, and shall see to the safekeeping of the same, subject to the future direction of the legislature."

The act does not confiscate debts due to British subjects. The preamble reprobates the doctrine as being inconsistent with public faith and the law and usages of nations. The payments made into the loan office were voluntary, and not compulsive, for it was in the option of the debtor to pay or not. The enacting clause will admit of a construction in full consistency with the preamble, for although the certificates were to be subject to the future direction of the legislature, yet it was under the express declaration that there should be no confiscation unless the King of Great Britain should set the example; if he should confiscate debts due to the citizens

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of Virginia, then the Legislature of Virginia would confiscate debts due to British subjects. But the King of Great Britain did not confiscate debts on his part, and the Legislature of Virginia has not confiscated debts on its part. It is, however, said that the payment being made under the act, the faith of Virginia is plighted. True, but to whom is it plighted -- to the creditor or debtor -- to the alien enemy or to its own citizen, who made the voluntary payment? Or will it be shaped and varied according to the event -- if one way, then to the creditor; if another, then to the debtor. Be these points as they may, the legislature thought it expedient to declare to what amount Virginia should be bound for payments so made. The act for this purpose was passed on 3 January, 1780, and is entitled "An act concerning monies paid into the public loan office in payment of British debts."

"Section 1. Whereas by an act of the general assembly entitled"

"An act for sequestering British property, enabling those indebted to British subjects to pay off such debts, and directing the proceedings in suits where such subjects are parties"

"it is among other things provided that it shall and may be lawful for any citizen of this commonwealth owing money to a subject of Great Britain to pay the same or any part thereof from time to time, as he shall think fit, into the said loan office, taking thereout a certificate for the same in the name of the creditor with an endorsement under the hand of the commissioner of the said office expressing the name of the payer, and shall deliver such certificate to the Governor and Council, whose receipt shall discharge him from so much of the debt, and the Governor and Council shall in like manner lay before the general assembly once in every year an account of these certificates specifying the names of the persons by and for whom they were paid, and shall see to the safekeeping of the same subject to the future direction of the legislature."

"Sec. 2. And whereas it belongs not to the legislature to decide particular questions of which the judiciary have cognizance, and it is therefore unfit for them to determine whether the payments so made into the loan office as aforesaid be good or void between the creditor and debtor. But it is expedient to declare to what amount this commonwealth may be bound for the payments aforesaid. Be it enacted and declared that this commonwealth shall at no time nor in any event or contingency be liable to any person or persons whatsoever for any sum on account of the payments aforesaid other than the value thereof when reduced by the scale of depreciation established by one other act of the general assembly entitled"

"An act directing the mode of adjusting and settling the payment

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of certain debts and contracts and for other purposes, with interest thereon at the rate of six percentum per annum, any law, usage, custom, or any adjudication or construction of the first recited act already made or hereafter be made notwithstanding."

On the part of the defendants it has been also urged that it is immaterial whether the payment be voluntary or compulsive, because the payer, on complying with the directions of the act, shall be discharged from so much of the debt. Be it so. If the legislature had authority to make the act, the Congress could, by treaty, repeal the act and annul everything done under it. This leads us to consider the treaty and its operation. Treaties must be construed in such manner as to effectuate the intention of the parties. The intention is to be collected from the letter and spirit of the instrument, and may be illustrated and enforced by considerations deducible from the situation of the parties and the reasonableness, justice, and nature of the thing for which provision has been made. The fourth article of the treaty gives the text, and runs in the following words:

"It is agreed that creditors on either side shall meet with no legal impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted."

The phraseology made use of leaves in my mind no room to hesitate as to the intention of the parties. The terms are unequivocal and universal in their signification, and obviously point to and comprehend all creditors and all debtors previously to 3 September, 1783. In this article there appears to be a selection of expressions plain and extensive in their import, and admirably calculated to obviate doubts, to remove difficulties, to designate the objects, and ascertain the intention of the contending powers, and, in short, to meet and provide for all possible cases that could arise under the head or debts. The words "creditors on either side" embrace every description of creditors, and cannot be limited or narrowed down to such only whose debtors had not paid into the loan office of Virginia. Creditors must have debtors; "debtors" is the correlative term. Who are these debtors? On the part of the defendants in error, it has been contended that Virginia is the substituted debtor, so far as respects debtors who may have paid money into the loan office under its laws. But the idea that the treaty may be satisfied by substituting the State of Virginia in the stead of the original debtor is far-fetched and altogether inadmissible. The terms in which the article is expressed clearly evince a contrary intention and naturally and irresistibly carry the mind back to the original debtor, for as between the British creditor and the

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State of Virginia there was no express and preexisting stipulation or debt.

Besides, what lawful impediment was to be removed out of the way of the creditor if Virginia was the substituted or self-created debtor? Did this clause make Virginia liable to a prosecution for the debt? Is Virginia now suable by such British creditor? No, he would in such case be totally remediless unless the nation of which he is a subject would interpose in his behalf. The words "shall meet with no lawful impediment" refer to legislative acts and everything done under them so far as the creditor might be affected or obstructed in regard either to his remedy or right. All lawful impediments, of whatever kind they might be, whether they related to personal disabilities or confiscations, sequestrations, or payments into loan offices or treasuries, are removed. No act of any state legislature, and no payment made under such act into the public coffers, shall obstruct the creditor in his course of recovery against his debtor. The act itself is a lawful impediment, and therefore is repealed; the payment under the act is also a lawful impediment, and therefore is made void. The article is to be construed according to the subject matter or nature of the impediment; it repeals in the first instance, and nullifies in the second. Unless this be the construction, it is not true that the creditor shall meet with no legal impediment to the recovery of his debt. Does not the plea in the present case contradict the treaty and raise an impediment in the way of recovery when the treaty declares there shall be none? Payments made in paper money into loan offices, and treasuries were the principal impediments to be removed and mischiefs to be redressed. The article makes provision accordingly. It stipulates that the creditor shall recover the full value of his debt in sterling money, thereby securing and guarding him against all payments in paper money. Suppose the creditor should call on Virginia for payment, what would it be -- the paper money paid into the loan office, or its value. Would this be a compliance with the article? In the one case, the money being cried down and dead, is no better than waste paper, and in the other, the payment, when reduced by the table of depreciation, would be inconsiderable, and in many cases not more than six-pence in the pound. Can this be called payment to the full value of the debt in sterling money? The subsequent expressions in the article enforce the preceding observations and mark the will and intention of the contracting parties in the most clear and precise terms. The concluding words are, "all bona fide debts heretofore contracted." In the construction of contracts, words are to be taken in their natural and obvious meaning unless some good reason be assigned to show

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that they should be understood in a different sense.

Now if a person, in reading this article, should take the words in their common meaning and as generally understood, could he mistake the intention of the parties? Their design unquestionably was to restore the creditor and debtor to their original state and place them precisely in the situation they would have stood if no war had intervened or act of the Legislature of Virginia had been passed. The impediments created by legislative acts and the payments made in pursuance of them and all the evils growing out of them were, so far as respected creditors, done away and cured. This is the only way in which all lawful impediments can be removed and all debts contracted before the date of the treaty can be recovered to their full value by the creditors against their debtors.

It has however been urged that this article must be restricted to debts existing and due at the time of making the treaty; that the debt in question was discharged because it has been paid into the Loan Office agreeably to law, and that the treaty ought not to be construed so as to renovate or revive it. To enforce this objection, the rule laid down by Vattel was relied on

"that the state of things at the instant of the treaty is to be held legitimate, and any change to be made in it requires an express specification in the treaty; consequently all things not mentioned in the treaty are to remain as they were at the conclusion of it."

Vatt., B. 4, c. 2, s. 21. The first part of the objection has been already answered, for it is within both the letter and spirit of the instrument that the creditors should be reinstated, and of course that the debtors should be liable to pay. The act of Virginia and the payment under it have, so far as the creditor is concerned, no operation, and are void. There is no difficulty in answering the objection arising from the passage in Vattel. The universality of the terms is equal to an express specification in the treaty, and indeed includes it. For it is fair and conclusive reasoning that if any description of debtors or class of cases was intended to be excepted, it would have been specified in the instrument, and the words "that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all debts heretofore contracted" would not have been made use of in the unqualified manner in which they stand in the treaty. Another article in the treaty now under review will serve by way of illustration.

"Article VII. There shall be a firm and perpetual peace between his Britannic Majesty and the said states, and between the subjects of the one and the citizens of the other, wherefore all hostilities both by sea and land shall then immediately cease; all prisoners on both sides shall be set at liberty, and his Britannic

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Majesty shall, with all convenient speed and without causing any destruction or carrying away any negroes or other property of the American inhabitants, withdraw all his armies, garrisons, and fleets from the said United States and from every port, place, and harbor within the same, leaving in all fortifications the American artillery that may be therein. And shall also order and cause all archives, records, deeds, and papers belonging to any of the said states or their citizens which in the course of the war may have fallen into the hands of his officers to be forthwith restored and delivered to the proper states and persons to whom they belong."

Would it be an objection on the part of his Britannic Majesty that the state of things at the instant of the treaty is to be held legitimate, and any change to be made in it requires an express specification? That the forts are not specified, and therefore not to be given up? The objection would be considered as futile and evasive. The answer would be that there is no doubt, because the expressions are general, comprehend the forts, and are equal to an express specification. So in the present case, the universality of the terms are equal to a specification of every particular debt, or an enumeration of every creditor and debtor. It is the same thing as though they had been individually named. All the creditors on either side, without distinction, must have been contemplated by the parties in the fourth article. Almost every word, separately taken, is expressive of this idea, and when all the words are combined and taken together, they remove every particle of doubt.

But if the class of British creditors whose debtors have paid into the Loan Office of Virginia, are not comprehended in the fourth article, then they pass without redress, without notice, without so much as a recommendation in their favor. The thing is incredible. Why a distinction -- why should the creditors whose debtors paid into the Loan Office be in a worse situation than the creditors whose debtors did not thus pay? The traders and others of this country were largely indebted to the merchants of Great Britain. To provide for the payment of these debts and give satisfaction to this class of subjects must have been a matter of primary importance to the British ministry. This doubtless is at all times and in all situations an object of moment to a commercial country. The opulence, resources, and power of the British nation may in no small degree be ascribed to its commerce; it is a nation of manufacturers and merchants. To protect their interests and provide for the payment of debts due to them, especially when those debts amounted to an immense sum, could not fail of arresting the attention, and calling forth the utmost exertions of the British cabinet. A measure of this kind, it is easy to perceive, would be pursued with unremitting

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diligence and ardor; sacrifices would be made to ensure its success, and perhaps nothing short of extreme necessity would induce them to give it up. But if the debts which have been confiscated or paid into loan offices or treasuries be not within the provision of the fourth article, then a numerous class of British merchants is passed over in silence, and not so much attended to as the loyalists or Americans who attached themselves to the cause of Britain during the war. Is it a supposable case that the British negotiators would have been more regardful of the interests of the loyalists than of their own merchants? That they would make a discrimination between merchants when in a national and political view, and in the eye of justice, they were equally meritorious and entitled to receive complete satisfaction for their debts? No line should be drawn between creditors unless it be found in the treaty. The treaty does not make it; the truth is that none was intended, for if intended it would have been expressed. The indefinite and sweeping terms made use of by the parties, such as "creditors on either side, no lawful impediment to the recovery of the full value in sterling money, of all debts heretofore contracted," exclude the idea of any class of cases' having been intended to be excepted, and explode the doctrine of constructive discrimination. The fourth article appears to me to come within the first general maxim of interpretation laid down by Vattel.

"It is not permitted to interpret what has no need of interpretation. When an act is conceived in clear and precise terms, when the sense is manifest, and leads to nothing absurd, there can be no reason to refuse the sense which this treaty naturally presents. To go elsewhere in search of conjectures in order to restrain or extinguish it is to endeavor to elude it. If this dangerous method be once admitted, there will be no act which it will not render useless. Let the brightest light shine on all the parts of the piece, let it be expressed in terms the most clear and determinate; all this shall be of no use if it be allowed to search for foreign reasons, in order to maintain what cannot be found in the sense it naturally presents."

Vatt., B. 2, ch. 17, s. 263.

To proceed, the construction on the part of the defendants excludes mutuality. The debts due from British subjects to American citizens were not confiscated or sequestered or drawn into the public coffers. They were left untouched. Now if all the British debtors be compelled to pay their American creditors, and a part only of the American debtors be compelled to pay their British creditors, there will not be that mutuality in the thing which its nature and justice require. The rule in such case should work both ways, whereas the other construction creates mutuality and proceeds upon

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indiscriminating principles. The former construction does violence to the letter and spirit of the instrument; the latter flows easily and naturally out of it.

It has been made a question whether the confiscation of debts which were contracted by individuals of the enemy in time of war is authorized by the law of nations among civilized states. I shall not, however, controvert the position that by the "rigor" of the law of nations, debts of the description just mentioned may be confiscated. This rule has by some been considered as a relict of barbarism; it is certainly a hard one, and cannot continue long among commercial nations; indeed it ought not to have existed among any nations, and perhaps is generally exploded at the present day in Europe. Hear the language of Vattel on this subject, B. 3, c. 5, s. 77.

"But at present, in regard to the advantage and safety of commerce, all the sovereigns of Europe have departed from this rigor. And as this custom has been generally received, he who should act contrary to it would injure the public faith, for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. The state does not so much as touch the sums which it owes to the enemy. Everywhere in case of war, funds credited to the public are exempt from confiscation and seizure."

The legislators of Virginia who made the act which has been pleaded in bar lay down the doctrine relative to this point in strong and unequivocal terms. For they expressly declare that the law and usages of nations require that debts should not be confiscated. If the enemy should in the first instance direct a confiscation of debts, retaliation might in such case be a proper and justifiable measure. The truth is that the confiscation of debts is at once unjust and impolitic; it destroys confidence, violates good faith, and injures the interests of commerce; it is also unproductive, and in most cases impracticable. Ingenious writers have endeavored to defend the doctrine on the ground that the confiscation of debts weakens the enemy and enriches ourselves. The first is not true, because remittances are seldom if ever made during a war, and the second generally proves unprofitable when attempted to be carried into practice. The gain is, at most,