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

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U.S. Supreme Court

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

Ware v. Hylton

3 U.S. (3 Dall.) 199

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:

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Primary Holding

International treaties trump state law, although not the Constitution, because of the Supremacy Clause.

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