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 Page 3 U. S. 200 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, Page 3 U. S. 201 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 Page 3 U. S. 202 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 Page 3 U. S. 203 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 Page 3 U. S. 204 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 Page 3 U. S. 205 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 Page 3 U. S. 206 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 Page 3 U. S. 207 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? Page 3 U. S. 220 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 Page 3 U. S. 221 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 Page 3 U. S. 222 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 Page 3 U. S. 223 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 Page 3 U. S. 224 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 Page 3 U. S. 225 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. Page 3 U. S. 226 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. " Page 3 U. S. 227 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. Page 3 U. S. 228 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 Page 3 U. S. 229 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. Page 3 U. S. 230 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 Page 3 U. S. 231 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 Page 3 U. S. 232 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 Page 3 U. S. 233 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 Page 3 U. S. 234 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 Page 3 U. S. 235 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 Page 3 U. S. 236 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 Page 3 U. S. 237 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 Page 3 U. S. 238 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 Page 3 U. S. 239 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 Page 3 U. S. 240 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 Page 3 U. S. 241 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, Page 3 U. S. 242 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 Page 3 U. S. 243 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 Page 3 U. S. 244 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 Page 3 U. S. 245 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 Page 3 U. S. 246 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 Page 3 U. S. 247 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 Page 3 U. S. 248 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 Page 3 U. S. 249 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 Page 3 U. S. 250 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 Page 3 U. S. 251 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 Page 3 U. S. 252 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 Page 3 U. S. 253 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 Page 3 U. S. 254 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,
temporary and inconsiderable, whereas the injury is certain and
incalculable, and the ignominy great and lasting. History furnishes
a remarkable instance in support and illustration of the foregoing
remarks. For in the war that broke out between France and Spain in
the year 1684, his Catholic Majesty endeavored to seize the effects
of the subjects of France in his kingdom, but the attempt
proved Page 3 U. S. 255 abortive, for not one Spanish agent or factor violated his trust
or betrayed his French principal or correspondent. If the payments
which have been made into the loan office pursuant to the act of
Virginia should be scaled according to a subsequent act of that
state, they would not, it is probable, amount to a very large
sum.

															Other reasons in support of the doctrine have been assigned --
namely that the confiscation of debts operates as an indemnity for
past losses and a security against future injuries -- but they do
not appear to me to be more solid than those already mentioned.
Confiscation of debts is considered a disreputable thing among
civilized nations of the present day, and indeed nothing is more
strongly evincive of this truth than that it has gone into general
desuetude, and whenever put into practice, provision is made by the
treaty which terminates the war for the mutual and complete
restoration of contracts and payment of debts.

															I feel no hesitation in declaring that it has always appeared to
me to be incompatible with the principles of justice and policy
that contracts entered into by individuals of different nations
should be violated by their respective governments in consequence
of national quarrels and hostilities. National differences should
not affect private bargains. The confidence, both of an individual
and national nature, on which the contracts were founded ought to
be preserved inviolate. Is not this the language of honesty and
honor? Does not the sentiment correspond with the principles of
justice and the dictates of the moral sense? In short, is it not
the result of right reason and natural equity? The relation which
the parties stood in to each other at the time of contracting these
debts ought not to pass without notice. The debts were contracted
while the creditors and debtors were subjects of the same King and
children of the same family. They were made under the sanction of
laws common to and binding on both. A revolution war could not,
like other wars, be foreseen or calculated upon. The thing was
improbable. No one, at the time that the debts were contracted, had
any idea of a severance or dismemberment of the empire by which
persons, who had been united under one system of civil polity
should be torn asunder and become enemies for a time, and perhaps
aliens forever. Contracts entered into in such a state of things
ought to be sacredly regarded. Inviolability seems to be attached
to them.

															Considering then the usages of civilized nations and the opinion
of modern writers relative to confiscation, and also the
circumstances under which these debts were contracted, we ought to
take the expressions in this fourth article in their most extensive
sense. We ought to admit of no comment that will narrow and
restrict their operation and Page 3 U. S. 256 import. The construction of a treaty made in favor of such
creditors, and for the restoration and enforcement of preexisting
contracts, ought to be liberal and benign. For these reasons, this
clause in the treaty deserves the utmost latitude of exposition.
The fourth article embraces all creditors, extends to all
preexisting debts, removes all lawful impediments, repeals the
legislative act of Virginia, which has been pleaded in bar, and
with regard to the creditor annuls everything done under it. This
article reinstates the parties; the creditor and debtor before the
war are creditor and debtor since; as they stood then they stand
now. To prevent mistakes, it is to be understood that my argument
embraces none but lawful impediments within the meaning of the
treaty, such as legislative acts, and payments under them into loan
offices and treasuries. An impediment created by law stands on
different ground from an impediment created by the creditor.

															To conclude, I am of opinion that the demurrer ought to have
been sustained, and of course that the judgment rendered in the
court below is erroneous and must be reversed.

															IREDELL, JUSTICE.

															In delivering my opinion on this important case, I feel myself
deeply affected by the awful situation in which I stand. The
uncommon magnitude of the subject, its novelty, the high
expectation it has excited, and the consequences with which a
decision may be attended have all impressed me with their fullest
force. I have trembled lest by an ill informed or precipitate
opinion of mine, either the honor, the interest, or the safety of
the United States should suffer or Page 3 U. S. 257 be endangered, on the one hand, or the just rights and proper
security of any individual, on the other. In endeavoring to form
the opinion I shall now deliver, I am sure the great object of my
heart has been to discover the true principles upon which a
decision ought to be given, unbiased by any other consideration
than the most sacred regard to justice. Happy should I have thought
myself if I could as confidently have relied on a strength of
abilities equal to the greatness of the occasion.

															The cause has been spoken to at the bar with a degree of ability
equal to any occasion. However painfully I may at any time reflect
on the inadequacy of my own talents, I shall as long as I live
remember with pleasure and respect the arguments which I have heard
on this case. They have discovered an ingenuity, a depth of
investigation, and a power of reasoning fully equal to anything I
have ever witnessed, and some of them have been adorned with a
splendor of eloquence surpassing what I have ever felt before.
Fatigue has given way under its influence, and the heart has been
warmed, while the understanding has been instructed.

															The action now before the Court is an action of debt brought by
a British creditor against an American debtor to recover upon a
bond executed before the late war.

															To this action there are five pleas, substantially as
follow.

															The 1st, a plea of payment, on which issue is joined, but not
now before the Court, and which is to be tried by a jury in case
judgment be given for the plaintiff upon the legal questions
arising on the other pleas, so as to entitle him to try the
issue.

															The 2d is a plea of a payment into the treasury of the state of
part of the debt under an act of assembly of 20 October, 1777.

															The 3d plea is grounded on two acts of assembly -- one of May,
1779, under which it is alleged that the debt in question became
forfeited to the state; the other of May, 1782, which is relied on
as a bar to the recovery. The former part of the plea I understand
to be given up by the defendant's counsel, and certainly with great
propriety, because debts are expressly excepted in the act it
refers to.

															The 4th plea alleges a noncompliance with the treaty on the part
of Great Britain, and therefore that the British creditor cannot
now recover a benefit under the same treaty. It also alleges acts
of hostility by Great Britain since the peace, as likewise forming
a bar to the recovery of the plaintiff, who is a British
creditor.

															The 5th plea is that this debt was absolutely annulled by the
change of government. This also I understand to have Page 3 U. S. 258 been given up in the course of the argument, and undoubtedly it
is not tenable.

															The only pleas, therefore, for us to consider are the second,
part of the third, and the fourth. Everything I have to say on that
part of the 3d, not relinquished, admitting the fullest operation
of the act of 1782, as intending to affect British creditors
themselves, as well as assignees, which does not appear to me to
have formed any part of its object, will appear from my
observations on the second plea, and therefore, to prevent
unnecessary repetition, I shall not consider it separately by
itself.

															It seems proper to speak of the fourth plea first, because if
that can be maintained, it is altogether immaterial to consider
either of the others.

															I am clearly of opinion that the fourth plea is not
maintainable.

															It is grounded on two allegations.

															1st, the breach of the treaty by Great Britain, as alleged in
the plea.

															2d, new acts of hostility on the part of that kingdom.

															1. In regard to the first, I consider the law of nations to be
decided as to the following position, viz., "That if a treaty be broken by one of the contracting parties,
it becomes (in the expressive language of the law) not absolutely
void, but voidable, and voidable not at the option of any
individual of the contracting country injured, however much he may
be affected by it, but at the option of the sovereign power of that
country of which such individual is a member."

															The authorities, I think, are full and decisive to that effect.
Grotius, b. 2, c. 15, s. 15; ib., b. 3, c. 20, s. 35, 36,
37, 38; 2 Burl. 355, part 4, c. 14, in s. 8; Vattel, b. 4, c. 4, s.
54.

															The gentlemen for the defendant, taking hold of some particular
expressions without regarding the whole of these authorities and
considering the reason of them, have argued that true, in the
present instance (for example) Congress might have remitted the
infraction, but not having done so, the plaintiff is barred for the
present, however he might be restored to the right, in case the
infraction should hereafter be actually remitted.

															But to me it is very evident that such a position is not
maintainable either by the authorities I have recited or the reason
of the thing.

															The words of Grotius are pointed and express to show not that
the treaty shall be reputed broken until a remission is actually
pronounced by the injured party, but that it shall not be reputed
as broken until the injured party shall think proper actually to
pronounce it broken, and it is remarkable that his Page 3 U. S. 259 words to this effect are calculated for the very purpose of
removing any doubts which other more general expressions might
occasion. His words are:

															"When there is treachery on one side, it is certainly at the
choice of the innocent party to let the peace subsist; as Scipio
did formerly after many perfidious actions of the Carthagenians.
Because no man, by doing contrary to his obligation, can thereby
discharge himself from it. For though it is expressed that by such
a fact the peace shall be reputed as broken, yet this clause is to
be understood only in favor of the innocent if he thinks fit to
make use of it."

															Grotius, b. 3, c. 20, s. 38.

															The whole clause of Vattel is substantially to the same purpose,
and therefore where in one part of the clause he says, "the
offended party may remit the infraction committed," this must be
understood to make the whole consistent, a remission not arising
from an express declaration, but from a tacit acquiescence in the
breach. Otherwise, what becomes of the words "but if he chooses not
to come to a rupture, the treaty remains valid and obligatory." The
treaty therefore must remain valid and obligatory until the power,
authorized to come to a rupture, does come to it.

															The same observations apply to Burlamaqui, who expresses himself
more generally, but states substantially the same doctrine. His
expression is, "it is at the choice of the innocent party to let
the peace subsist," which certainly does not require a positive
declaration that it shall subsist.

															This doctrine appears to me to be grounded on the highest
reason. It is undoubtedly true that each nation is considered as a
moral person, and the welfare and interest of all the individuals
of that nation, so far as they may be affected by its concerns with
foreign nations, are in each country entrusted to some particular
power authorized to negotiate with them, or to speak the sense of
the nation on any emergency.

															When any individual, therefore, of any nation has cause of
complaint against another nation or any individual of it not
immediately amenable to the authority of his own, he may complain
to that power in his own nation which is entrusted with the
sovereignty of it as to foreign negotiations and he will be
entitled to all the redress which the nature of his case requires
and the situation of his own country will enable him to obtain.

															The people of the United States, in their present Constitution,
have devolved on the President and Senate the power of making
treaties, and upon Congress the power of declaring war.

															To one or other of these powers, in case of an infraction of a
treaty that has been entered into with the United States, I
apprehend application is to be made. Page 3 U. S. 260 Upon such an application, various important considerations would
necessarily occur.

															1. Whether the treaty was first violated on the part of the
United States or on that of the other contracting power.

															2. Whether, if first violated by the latter, it was a violation
in an important or an inconsiderable article; whether the violation
was by design or accident, or owing to unforeseen obstacles;
whether, in short, it was wholly or partially without excuse.

															3. Whether, admitting it was either, it was a matter for which
compensation could be made, or otherwise.

															4. Whether the injury was of such a nature as to admit of
negotiation or to require immediate satisfaction, peremptorily and
without delay.

															5. Whether, if the circumstances in all other cases justified
it, it was advisable, upon an extensive view and wise estimation of
all the relative circumstances of the United States, to declare the
treaty broken, and of course void, for though the party first
breaking the treaty cannot make it absolutely void, but it is only
voidable at the election of the injured party, yet when that
election is made by declaring the treaty void, I conceive it is
totally so as to both parties, and that all rights enjoyed under
the treaty are absolutely annulled, as if no stipulation had been
made for them.

															These are considerations of policy -- considerations of extreme
magnitude and certainly entirely incompetent to the examination and
decision of a court of justice.

															Miserable and disgraceful indeed would be the situation of the
citizens of the United States if they were obliged to comply with a
treaty on their part and had no means of redress for a
noncompliance by the other contracting power.

															But they have, and the law of nations points out the remedy. The
remedy depends on the discretion and sense of duty of their own
government.

															This plea is therefore defective so far as concerns the breach
of the treaty -- not because this Court hath no cognizance of a
breach of treaty, but because by the law of nations we have no
authority, upon any information or concessions of any individuals,
to consider or declare it broken; but our judgment must be grounded
on the solemn declaration of Congress alone (to which, I conceive,
the authority is entrusted), given for the very purpose of vacating
the treaty on the principles I have stated. The paper transmitted
by order of Congress to the Executive of Virginia on the subject of
a violation complained of on the part of the British certainly
cannot amount to so much, especially as there is another paper of
theirs in the year 1787, transmitted to the different states,
complaining of violations Page 3 U. S. 261 on our part. They have pronounced no solemn decision which
committed the first infraction; much less have they declared that,
in consequence of the infraction on the part of the British, they
chose that the treaty should be annulled.

															But it is said that a declaration by Congress that the treaty
was broken by Great Britain would be exercising a judicial power,
which by the Constitution in all cases of treaties is devolved on
the judges.

															Surely such a thing was never in the contemplation of the
Constitution. If it was, a method is still wanting by which it
could be executed, for if we are to declare whether Great Britain
or the United States has violated a treaty, we ought to have some
way of bringing both the parties before us.

															The method contended for by the defendant's counsel is very ill
suited to another part of their doctrine, which is certainly right,
that a nation is a moral person and that the act of a sovereign
power to whom its foreign concerns are entrusted is the act of
every individual of that nation, because he represents the
whole.

															But in this case, the King of Great Britain does not act on
behalf of the plaintiff, his subject, and the United States on
behalf of the defendants, their citizens, but the plaintiff is
alleged to represent the sovereignty of the United States, a
dignity for aught I know, of which they may be respectively worthy,
but which certainly does not either politically or judicially
belong to them.

															The Judiciary is undoubtedly to determine in all cases in law
and equity coming before them concerning treaties.

															The subject of treaties, gentlemen truly say, is to be
determined by the law of nations.

															It is a part of the law of nations that if a treaty be violated
by one party, it is at the option of the other party, if innocent,
to declare, in consequence of the breach, that the treaty is
void.

															If Congress, therefore (which, I conceive, alone has such
authority under our government). shall make such a declaration in
any case like the present, I shall deem it my duty to regard the
treaty as void and then to forbear any share in executing it as a
judge.

															But the same law of nations tells me that until that declaration
be made, I must regard it (in the language of the law) valid and
obligatory.

															The admission of the fact, stated in the plea, cannot be taken
as an admission that the fact is strictly true, because the
plaintiff had no way of avoiding the plea but by a demurrer,
whether it was true or not. If it was well pleaded, it is an
admission of the entire truth, but not otherwise. For the reasons I
have given, it is clear to me that it is not well pleaded. Page 3 U. S. 262 2. In regard to the second branch of this plea, new acts of
hostility, if meant as constituting a breach (which I don't
understand it to be), the observations I have already made will
equally apply to this part of the plea. If meant as a proof that a
war in fact, tho' not in name, subsists, and therefore that the
plaintiff is an alien enemy, the same observations will apply still
more forcibly. We must receive a declaration that we are in a state
of war from that part of the sovereignty of the union to which that
important subject is entrusted. We certainly want some better
information of the fact than we have at present. However, this
point seems so clear that the defendant's counsel very faintly
attempted to maintain this idea of the case.

															I conclude, therefore, for these reasons that there is nothing
in the fourth plea which is a bar to the plaintiff's action.

															The great difficulty of the case arises from the second plea.
This is the only part of the case about which I have from the
beginning entertained any doubt. And I must confess I have had very
great doubts indeed on this subject. My opinion has varied more
than once in regard to it. I have endeavored to come to a
conclusion by analyzing it in all its parts, and the result of my
investigation has been, according to the best judgment I am capable
of forming upon the most deliberate examination, that the plea is
supportable. My reasons for this opinion I must give at
considerable length in order to show it is not a rash one, and that
gentlemen may be enabled in the future progress of this case more
easily to detect my errors, if I should have committed any.

															I will divide the consideration of the plea into two points:

															1. Whether the plea would have been a bar, if this case had
stood independently of the treaty.

															2. Whether the treaty destroys the operation of the plea.

															In considering the first point, I shall, for the greater
perspicuity, consider it under the following heads:

															1. Whether the Legislature of this state had a right, agreeable
to the law of nations, to confiscate the debt in question.

															2. Whether, admitting that the legislature had not a right
agreeably to the law of nations to confiscate the debt, yet if it
in fact did so, it would not, while it remained unrepealed by any
subsequent sufficient authority, have been valid and obligatory
within the limits of the state so as to bar any suit for the
recovery of the debt.

															3. Whether, if it shall be considered that the legislature did
not wholly confiscate the debt so as totally to extinguish all
right in the creditor (as I apprehend they clearly did not), but
only sequester it under the peculiar circumstances stated in the
act, the payment in question, under the authority of the act, did
not, at that time at least, wholly exonerate the debtor. Page 3 U. S. 263 1. It being clear that there was no absolute confiscation in
this case, I shall not give a conclusive opinion upon the right;
but as I think it highly probable such a right did exist, some
observations on that subject will naturally and properly lead to
those upon which my opinion as to the validity of the payments is
ultimately founded. For this reason and this reason only, I discuss
the present question.

															Whatever doubt might have been entertained by reasoning on the
particular examples of Grotius and Puffendorf, Bynkershoek (who, I
believe, is alone, a very great authority) is full and decisive in
the very point as to a general right of confiscating debts of an
enemy. His doctrine I take to be this -- that the law of nations
authorizes it unless in former treaties between the belligerent
powers, there be particular stipulations to the contrary. Vattel
recognizes the general right, but states a prevailing custom in
Europe to the contrary, in consequence of which he says

															"As this custom has been generally observed, he who would 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."

															Vattel mentions the fact, but does not state the origin of the
fact, which I think it is not improbable may have arisen in
consequence of particular stipulations, as mentioned by
Bynkershoek, very few of the civilized nations of Europe not having
treaties with each other.

															Whether this customary law (admitting the principle to prevail
by custom only) was binding on the American states during the late
war, in respect to Great Britain at least, may be a question of
considerable doubt. There were particular circumstances in the
relative situation of the two countries which might possibly exempt
this from the force of such a custom could it be supposed that when
this country became an independent nation, this customary law
immediately attached upon it. However this country might have been
considered bound to observe such a law in regard to any nation
recognizing its independence, had we been unfortunately at war with
such, and who observed it on her part (for undoubtedly a breach on
one side would justify a nonobservance by the other), it did not
necessarily follow that the people of this country were bound to
observe it to a nation which not only did not recognize, but fought
to destroy their very existence as an independent people,
considering them in no other light than as traitors whose lives and
fortunes were forfeited to the law. The people of this country
literally fought pro aris & focis, and therefore means
of defense which, when inferior objects were in view, might not be
strictly justifiable might in such an extremity become so on the
great principle on which the laws of war are Page 3 U. S. 264 founded, self preservation -- an object that may be attained by
any means not inconsistent with the eternal and immutable rules of
moral obligation.

															The principles of the common law of England, as appears from a
case I showed to the bar (that in Sir Thomas Parker's Reports 267, Attorney General v. Weeden & Shales ) do undoubtedly
recognize the forfeiture of a chose in action due to an enemy. At
the utmost, it only requires that an inquisition should be
completed during the war, so as, by ascertaining the fact, fully to
establish the title of the Crown. I can see no reason why that
principle of the common law should not obtain here. If so, then
independent of any act of legislation whatever, an inquisition
completed during the war finding the fact would have vested the
title to the debt in question absolutely in the state, unless this
debt can be distinguished from any other chose in action. Such a
distinction has been attempted, 1st, because this debt was due
before the war; 2d, because the state had not possession of the
bond. To these objections, I think, easy answers may be given. 1st,
the right acquired by war (detached from custom, which I am not now
considering, or any express stipulation, if there be such) depends
on the power of seizing the enemy's effects. It is not grounded on
any antecedent claim of property, but, on the contrary, the
property is admitted to be the enemy's, in the very act of seizing
it. Its sole justification is that being forced into a state of
hostility by an injury for which no satisfaction could be obtained
in a peaceable manner, reprisals may be made use of as a means to
compel justice to be done or to enable the injured party to obtain
satisfaction for itself. Such a power, from its nature (being
grounded on necessity only) seems incapable of limitation by any
general rule, and if conscientiously used (of which each nation
must judge for itself), the principle applies as well to property,
which was in the country before the war began, as to any other
which may be accident come into its possession. The same objection
would apply to the seizure of any other property of an enemy which
had been in the country before the war began as of an incorporeal
right. The first resolution in the case I cited is as to choses in
action generally, tho' the chose in action there in question was in
fact one which had accrued during the war. 2d, the objection from
the state's not having possession of the bond (though countenanced
by one or two writers) I think is also susceptible of a
satisfactory answer. The bond does not create the debt, but is only
evidence of it. Possession of it alone can give no right. A robber
or an individual coming to the possession of it by accident
acquires no more title to the money than he had before. The law is
so even as to promissory notes payable to bearer, if the fact can
be Page 3 U. S. 265 made to appear. If a bond be lost, equity has long since
afforded a remedy.

															In a modern case in a court of law, a profert of a deed has been
dispensed with, upon a special declaration stating the loss of it.
It was while the possession and the right were confounded that this
objection was thought of weight. It is observable also that it
would create an idle and a trifling distinction between debts due
by specialty and simple contract debts -- a distinction that might
be supported by ingenuity but certainly not by reason. And it would
found harsh to say that simple contract debts should be forfeitable
if the witnesses were in the country, but otherwise not. Now if the
forfeiture of the debt in question could have been effected at
common law by an inquisition completed during the war, I can see no
reason why the legislature could not, with equal propriety as to
the right, have effected the same object substantially in any other
mode. The proceeding in each case must be ex parte, and
the object affected can be conclusively bound by neither if his
case did not come within the principles of the law. This I argue
upon a supposition that the customary law of nations was not
binding here, at least in this instance. That, however, is a point
of some delicacy, and not necessary for me now to determine,
because, 2d, I am of opinion that admitting that the legislature
had not strictly a right, agreeably to the law of nations, to
confiscate the debt in question, yet if they in fact did so, it
would, while it remained unimpeached by any subsequent sufficient
authority, have been valid and obligatory within the limits of the
state, so as to bar any suit for the recovery of the debt.

															In this opinion I have the misfortune to differ from a very high
authority, for which I have the greatest respect. But however
painful it may be to differ from gentlemen whose superior abilities
and learning I readily acknowledge, I am under the indispensable
necessity of judging according to the best lights of my own
understanding, assisted by all the information I can acquire. I
confess, therefore, that I agree entirely with the defendant's
counsel in thinking that the acts of the legislature of the state
in regard to the subject in question, so far as they were
conformable to the constitution of the state and not in violation
of any article of the Confederation (where that was concerned) were
absolutely binding de facto, and that if, in respect to
foreign nations or any individual belonging to them, they were not
strictly warranted by the law of nations, which ought Page 3 U. S. 266 to have been their guide, the acts were not for that reason
void, but the state was answerable to the United States for a
violation of the law of nations which the nation injured might
complain of to the sovereignty of the Union.

															There is no doubt that an act of Parliament in Great Britain
would bind in its own country in every possible case in which the
legislature thought proper to act. Blackstone, 1 Comm. 91, is
precise as to that point even in cases manifestly unjust, if the
words of the law are plain and unequivocal. In this country, thank
God, a less arbitrary principle prevails. The power of the
legislatures is limited; of the state legislatures by their own
state Constitutions, and that of the United States; of the
legislature of the Union by the Constitution of the Union. Beyond
these limitations, I have no doubt their acts are void because they
are not warranted by the authority given. But within them, I think,
they are in all cases obligatory in the country subject to their
own immediate jurisdiction, because in such cases the legislatures
only exercise a discretion expressly confided to them by the
Constitution of their country, and for the abuse of which (if it
should be abused) they alone are accountable. It is a discretion no
more controllable (as I conceive) by a court of justice than a
judicial determination is by them, neither department having any
right to encroach on the exclusive province of the other in order
to rectify any error in principle which it may suppose the other
has committed. It is sufficient for each to take care that it
commits no error of its own. As to a distinction between a state
court and this Court in this respect, I do, for my part, disclaim,
according to my present sentiments, any authority to give a
different decision in any case whatsoever from such as a state
court would be competent to give under the same circumstances. I
have no conception that this Court is in the nature of a foreign
jurisdiction. The thing itself would be as improper as it would be
odious in cases where acts of the state have a concurrent
jurisdiction with it.

															With regard to the exception I speak of, no one has suggested,
that the act of October, 1777, was in any manner inconsistent with
the constitution of the state, and at that time the Articles of
Confederation were not in force; but if they had been, I think
there is no color for alleging any inconsistency with them, since
Congress could have passed no act on this subject, but if it had
wished for an act, must have recommended to the state legislatures
to pass it. And the very nature of a recommendation implies that
the party recommending cannot, but the party to whom the
recommendation is made can, do the thing recommended. Page 3 U. S. 267 The third question under the present head that I proposed was
this:

															"Whether, if it shall be considered that the legislature did not
absolutely confiscate the debt, so as totally to extinguish all
right in the creditor (as I apprehend they clearly did not), but
only sequestered it under the peculiar circumstances stated in the
act, the payment in question, under the authority of the act, did
not, at that time at least, wholly exonerate the debtor."

															The words of the enacting clause concerning this subject are as
follow:

															"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
said sum 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 say 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."

															We are too apt, in estimating a law passed at a remote period,
to combine in our consideration all the subsequent events which
have had an influence upon it, instead of confining ourselves
(which we ought to do) to the existing circumstances at the time of
its passing. Let us, however, recollect that at this period, no
British creditor could institute a suit for the recovery of his
debt, as the war constituted him an alien enemy, and therefore his
remedy stood suspended at common law, so that he ran the risk of
the entire loss of every debt where his debtor proved insolvent
during the war. Consequently it would, in his own estimation, have
been doing him a considerable service that the state should
authorize a receipt on his behalf had there been no other currency
in circulation than gold or silver. It would have been placing him
in a state of security greater than he had any reason to expect.
The extremity of the public situation rendered paper money
unavoidable, but this was an evil to which all American as well as
British creditors were liable, and the former (as we all know) were
compelled, upon a tender, under pain of being deemed enemies of
their country, to receive it at its nominal value. It was natural
and perhaps not altogether, if at all, unjust if a man had $100 due
to him from B. and he himself owed C. $100, and B. paid him the
$100, though in depreciated Page 3 U. S. 268 money, that he should immediately carry it to his creditor.
Many, I have no doubt, paid their creditors upon these plain
grounds of retribution, though others undoubtedly (for no
government can make all men honest) took most scandalous advantages
of depreciation in its advanced periods. When this law was passed,
the depreciation, I believe, was little felt and not at all
acknowledged. De minimis non curat lex is an old law
maxim. I may parody it on this occasion by saying de minimis
non curat libertas. When life, liberty, property, everything
dear to man was at stake, few could have coldness of heart enough
to watch the then scarcely perceptible gradation in the value of
money. In this situation, the legislature of the state passed the
law in question. It did all that the then situation of affairs
would admit of, even for the benefit of the British creditors
themselves, and it put it in the power of American creditors, who
were compelled to receive the existing currency, to pay their own
debts with it. The depositing of money in the loan office was at
that time by many, even in America itself, thought an eligible
method of securing it, and with some foreigners it was a favorite
object of speculation. I know myself that the proceeds of some very
valuable cargoes were ordered to be so applied, and probably there
were such instances of which I knew nothing. The increased
difficulties of the American war in a great degree disappointed the
intentions of the original law, but still British and American
creditors were placed on the same footing so far as it was in the
power of the legislature to effect it.

															I thought it proper to say thus much as introductory to the
observations I shall make on the legal operation of those
payments.

															1. If the state, de jure, according to the law of
nations (which I strongly incline to think) had a right wholly to
confiscate this debt, it had undoubtedly a right to proceed a
partial way towards it by receiving the money and discharging the
debtor, substituting itself in his place. We are to be governed by
things, and not names, and consequently if the state had a right to
say to a debtor "We confiscate the right of your creditor, and you
must pay your debt to us, and not to him," it had a right to
say

															"We do not choose for the present absolutely to confiscate this
debt, although we have the power so to do, but if you will pay the
money to us, you shall be as completely discharged as if we
did."

															In this point of view, I think there can be no doubt but that a
discharge would, under such circumstances, have as completely
extinguished the right of the creditor as to the debtor as if, in
case no war had intervened, and therefore no right had accrued
under it to the states, the debtor had actually paid the money Page 3 U. S. 269 to the order of the creditor and received a discharge from
himself.

															2. For the reasons I have before given, I think a confiscation,
either whole or partial, or any less exercise of that power de
facto, though not de jure, would in this state have
been perfectly binding, and in legal contemplation as effectual to
bar a recovery as if the law of nations had been strictly and
unquestionably pursued.

															3. I believe there can be no doubt but that according to the law
of nations, even on the most modern notions of it, a sequestration
merely for the purpose of recovering the debts and preventing the
remittance of them to the enemy, and thereby strengthening him and
weakening the government, would be allowable, and if so, surely it
follows as a matter of course (perhaps it would follow without a
solemn declaration) that when, in virtue of any such act, the money
was paid to the government, the debtor was wholly discharged, and
the government, if it thought proper not to proceed to confiscation
afterwards, became itself liable.

															The case cited from the Law of Evidence I think is an authority
substantially in point to show the complete discharge of the
debtor.

															"In debt upon a lease, the defendant pleaded payment, and in
evidence showed he paid it to sequestrators of the commonwealth,
the plaintiff being a delinquent, and it was ruled this was good
payment to prove the issue, which was a payment to the plaintiff
himself."

															Clayton 129. Anonymous Law of Evidence (Edit of 1744) 196, c. 9,
c. 11.

															This case is certainly very strong, for it was not deemed
necessary to plead it in bar, but it was admitted in evidence upon
a plea that he paid the money to the plaintiff himself. It does not
appear whether this action was tried under the commonwealth or
after the restoration. If under the former, it is more parallel to
the present action. If it was tried after the restoration, it is a
still stronger case, for it showed that courts of justice thought
themselves bound to protect individuals, who acted under laws of a
government they deemed an usurpation, and on all occasions treated
with contempt. Besides an objection which I shall notice presently,
I can imagine but one real difference between that case and the one
before us, and that is that in England the payment was compelled;
here Page 3 U. S. 270 it was voluntary. I once thought that circumstance of weight,
but on reflection I consider the public faith equally pledged in
one case as in the other; that the authority exercised in both is
the same, and that it not only would be unjust in itself, but of
dangerous example to tell men that they should be protected under a
compulsory obedience to government, but not upon a cheerful
submission to it.

															4. My observations as to the paper money, which the necessities
of this country unfortunately constrained us to use so long, had no
other tendency than to show the circumstances of the fact as they
really existed. As a judge, I conceive myself bound to say that
that makes no difference as to the right. The competency of such
acts at that time was unquestionable. Their justice depended on the
degree of necessity which gave rise to them. A payment in paper
money, then a legal tender, I must consider as complete and
effectual a payment at that time as payment in gold or silver. Such
was the law of the country. A law which severe necessity dictated,
and by which, in the course of the war, in which many sacrifices
became unavoidable, many thousand American citizens, as well as
many British merchants, suffered. It is the lot of our nature to
experience many evils for which we can find no remedy, and
therefore nothing can be more fallacious than in anything of a
general nature to expect perfect exactness.

															For these reasons, I am clearly of opinion that under the act of
sequestration and the payment and discharge, the discharge will be
a complete bar in the present case unless there be something in the
Treaty of Peace to revive the right of the creditor against the
defendant, so as to disable the latter from availing himself of the
payment into the treasury in bar to the present action.

															The operation of that treaty comes, therefore, now to be
considered. None can reverence the obligation of treaties more than
I do. The peace of mankind, the honor of the human race, the
welfare, perhaps the being of future generations, must in no
inconsiderable degree depend on the sacred observance of national
conventions. If ever any people, on account of the importance of a
treaty, were under additional obligations to observe it, the people
of the United States surely are to observe the treaty in question.
It gave peace to our country after a war attended with many
calamities, and in some of its periods presenting a most melancholy
prospect. It insured, so far as peace could insure them, the freest
forms of government, and the greatest share of individual liberty,
of which perhaps the world had seen any example. It presented
boundless views of future happiness and greatness which almost
overpower the imagination, and which, I trust, will not be
altogether Page 3 U. S. 271 unrealized. The means are in our power; wisdom and virtue are
alone required to avail ourselves of them. Such was the peace which
was procured by the treaty now in question -- a treaty which, when
it shall be fully executed in all its parts on both sides, future
generations will look up to with gratitude and admiration and with
no small degree of fervor towards those who had an active share in
procuring it.

															In proceeding to examine the treaty with these sentiments, it
may well be imagined I do it with a reverential and sacred awe lest
by any misconstruction of mine I should weaken any one of its
provisions.

															The question now is whether, under this treaty, the payment into
the treasury is a bar to so much of the plaintiff's claim, as
comprehends money to that amount?

															I shall examine this question under two divisions:

															1st, whether it would have been a bar, as the law existed, after
the ratification of the treaty and previous to the passing of the
present Constitution of the United States, even if the words of the
treaty must be construed to comprehend such a case.

															2d, whether, under that Constitution, it can now be considered
as a bar.

															My opinion, I confess, as to the first question is that if the
treaty had plainly comprehended such cases, the plaintiff could not
have recovered in a court of justice in this state, as the law
stood previous to the ratification of the present Constitution of
the United States.

															I feel, as I ought to do, great diffidence, when I am under the
necessity, in the execution of my duty as a judge of differing from
the opinions of those entitled from superior talents and high
authority to my utmost respect. I am compelled to do so in the
present instance, but I shall at the same time assign my reasons
for my opinion, and if in the future course of this great cause I
can be convinced that in this or in any other instance I have
committed an error, I shall most cheerfully acknowledge it.

															The opinion I have long entertained and still do entertain in
regard to the operation of the fourth article is that the
stipulation in favor of creditors, so as to enable them to bring
suits and recover the full value of their debts, could not at that
time be carried into effect in any other manner than by a repeal of
the statutes of the different states constituting the impediments
to their recovery, and the passing of such other acts as might be
necessary to give the recovery entire efficacy in execution of the
treaty.

															I consider a treaty (speaking generally, independent of the
particular provisions on the subject in our present
Constitution, Page 3 U. S. 272 the effect of which I shall afterwards observe upon) as a solemn
promise by the whole nation that such and such things shall be done
or that such and such rights shall be enjoyed.

															I think the distinction taken by the plaintiff's counsel as to
stipulations in the treaty, executed or executory, will enable me
to illustrate my meaning by considering various stipulations in the
treaty in question.

															1st. I will consider what may be deemed executed articles.

															In this class I would place, the acknowledgement of independence
in the first article; the permission to fish on the banks in the
third; the acknowledgement of the right to navigate the Mississippi
in the eighth.

															These I call executed because, from the nature of them, they
require no further act to be done.

															2d. The executory (so far as they concern our part in the
execution) I would place in three classes.

															Those which concern either, 1st, the legislative authority; 2d,
the Executive; 3d, the judicial.

															The fourth article in question I consider to be a provision, the
purpose of which could only be effected by the legislative
authority, because when a nation promises to do a thing, it is to
be understood that this promise is to be carried into execution in
the manner which the Constitution of that nation prescribes.

															When, therefore, a treaty stipulates for anything of a
legislative nature, the manner of giving effect to this stipulation
is by that power which possesses the legislative authority and
which consequently is authorized to prescribe laws to the people
for their obedience, passing such laws as the public obligation
requires. Laws are always seen, and through that medium people know
what they have to do. Treaties are not always seen. Some articles
(being what are called secret articles) the public never see. The
present Constitution of the United States affords the first
instance of any government which, by saying treaties should be the
supreme law of the land made it indispensable that they should be
published for the information of all. At the same time I admit that
a treaty, when executed pursuant to full power, is valid and
obligatory, in point of moral obligation, on all, as well on the
legislative, executive, and judicial departments (so far as the
authority of either extends, which in regard to the last, must in
this respect be very limited) as on every individual of the nation,
unconnected officially with either, because it is a promise in
effect by the whole nation to another nation, and if not in fact
complied with, unless there be valid reasons for noncompliance, the
public faith is violated.

															I have mentioned this great article which concerns the
legislative Page 3 U. S. 273 department. Let me now, by way of further illustration, consider
one which concerns the executive.

															It is stipulated in one part of this treaty "That all prisoners
on both sides shall be set at liberty." I very much doubt whether
the Commander in Chief, without orders from Congress (then
possessing the supreme executive authority of the Union) could have
been justified in releasing such prisoners as he had then in
custody after the ratification. Certainly no inferior officer in
whose actual care they were could without an order directly or
indirectly from the Commander in Chief. And yet I can see no
reason, if a treaty is to be considered as operating de
facto, by superior authority, notwithstanding any impediment
arising from laws then in being, why the "rigor" of the treaty,
which in that instance is said to be uncontrollable, should not be
so in every other. If legislative authority is superseded, why not
executive? Surely the former is not less sacred than the
latter.

															In like manner as to the judicial. It is stipulated in the sixth
article

															"That there shall be no future confiscations made, nor any
prosecutions commenced against any person or persons, for or by
reason of any part which he or they may have taken in the present
war, and that no person shall on that account suffer any future
loss or damage either in his person, liberty, or property, and that
those who may be in confinement on such charges at the time of the
ratification of the treaty in America shall be immediately set at
liberty and the prosecutions so commenced be discontinued."

															I apprehend this article, so far as it respected the release of
prisoners confined, could only be executed by an order from the
judges of the court having judicial authority in the cases in
question in consequence either of an actual alteration in the law
by the legislature in conformity to the treaty (where that was
necessary) or, of a particular pardon by the executive, and that if
a jailer, merely because the treaty was ratified and he found this
article in it, had set all such prisoners at liberty, he would have
been guilty of an escape.

															This reasoning, in my opinion, derives considerable weight from
the practice in Great Britain.

															The King of Great Britain certainly represents the sovereignty
of the whole nation as to foreign negotiations as completely as the
Congress of the United States ever represented the sovereignty of
the Union in that particular. His power as to declaring war and
making peace is as unlimited as the respective authorities for
those purposes in the United States. The whole nation of Great
Britain speaks as effectually and as completely through him as all
the people of the United States can now speak through Congress as
to a declaration of Page 3 U. S. 274 war, or through the President and Senate as to making peace, and
of course as they ever did through Congress, under the old Articles
of Confederation, the power certainly not being lessened. The law
of nations equally applies to his treaties on behalf of Great
Britain as it can apply to any treaty made on behalf of the United
States. Yet I believe it is an invariable practice in that country,
when the King makes any stipulation of a legislative nature, that
it is carried into effect by an act of Parliament. The Parliament
is considered as bound upon a principle of moral obligation to
preserve the public faith pledged by the treaty by passing such
laws as its obligation requires, but until such laws are passed,
the system of law, entitled to actual obedience, remains de
facto as before. I doubt not, if my time had admitted of a
full search and I could have had access to the proper books for
information, that I could find many instances of this. I will,
however, mention one, which I have been able to procure here. It is
a transaction of this nature, so late as the commercial treaty
between Great Britain and France in 1786. The information I derive
is from the Annual Registers of 1786 and 1787, which I suppose, as
to this point, are correct.

															One article of the treaty was in these words:

															"The wines of France, imported directly from France to Great
Britain, shall in no case pay any higher duties than those which
the wines of Portugal now pay."

															This treaty was signed at Versailles 26 September, 1786.

															On 24 January, 1787, the King met his Parliament, and among
other things, informed the two houses

															"That he had concluded a treaty of commerce with the French
King, and had ordered a copy of it to be laid before them. He
recommended, as the first object of their deliberations the
necessary measures for carrying it into effect, and expressed his
trust that they would find the provisions contained in it to be
calculated for the encouragement of industry and the extension of
lawful commerce in both countries, and by promoting a beneficial
intercourse between their respective inhabitants, likely to give
additional permanency to the blessings of peace."

															On 15 February, the House of Commons, being in a committee of
the whole house, Mr. Pitt, the principal Minister of the Crown,
moved the following resolution:

															"That the wines of France be imported into this country upon as
low duties, as the present duties paid on the importation of
Portugal wines."

															I have not had time to examine them all, but I doubt not it will
be found on inspection that there was not a single provision Page 3 U. S. 275 in the treaty inconsistent with former Parliamentary
regulations, but Parliament acted upon it by a new law calculated
to give it effect.

															The following quotation,(which is a literal one) I think is very
much to the purpose:

															"On the Monday following, the report of the committee, upon the
commercial treaty was brought up and, on the usual motion's being
made that the house do agree to the same, notice was taken of the
omission of the mention of Ireland, both in the treaty and the
tariff, and it was asked whether or not she was understood to be
included in it? To this question Mr. Pitt replied that Ireland was
undoubtedly entitled to all the benefits of the treaty, but it was
entirely at her own option whether she would choose to avail
herself of those advantages, for it was only to be done by her
passing such laws as should put the tariff on the same footing in
that country as it was stipulated should be done in this. Had the
adoption of the treaty by Ireland, been a stipulation necessary to
be performed before it could be finally concluded on in this
country, then this country would have been deprived of all the
benefits resulting from it in the event of Ireland's refusal."

															Now it is observable that in speaking of this tariff in the
treaty, the King of Great Britain does not promise that the
Parliament shall pass laws to such an effect; but the language is
thus:

															"The two high contracting parties have thought proper to settle
the duties on certain goods and merchandises in order to fix
invariably the footing on which the trade therein shall be
established between the two nations. In consequence of which, they
have agreed upon the following tariff. . . ."

															In another part, the King of Great Britain says

															"His Britannic Majesty reserves the right of countervailing by
additional duties on the undermentioned merchandises, the internal
duties actually imposed upon the manufactures, or the import duties
which are charged on the raw materials -- namely, on all linens or
cottons, stained or painted, on beer, glassware, plate glass, and
iron."

															Here is no mention of the Parliament, and yet no man living will
say that a bare proclamation of the King upon the ground of the
treaty would be an authority for the levying of any duties
whatever; but it must be done in the constitutional mode, by act of
Parliament, which affords an additional proof that where anything
of a legislative nature is in contemplation, it is constantly
implied and understood (without express words) that it can alone be
effected by the medium of the legislative authority. Page 3 U. S. 276 That this practice I have noticed is not an occasional one, but
has been constantly observed, I think is highly probable from this
circumstance; that if treaties were considered in that country as ipso facto repealing all laws inconsistent with them and
imposing new ones, they ought to be bound up with the statutes at
large (which they never have been), otherwise the publication would
be at least incomplete, if not deceitful.

															These examples from Great Britain I consider of very high
authority, as they are taken from a kingdom equally bound by the
law of nations as we are, possessing a mixed form of government as
we do, and, so far as common principles of legislation are
concerned, being the very country from which we derive the
rudiments of our legal ideas.

															But I must admit that there is also a very high authority, and
to which we naturally should be more partial, against this
construction. It is the authority of the Congress of the United
States in the year 1787. It is an authority derived from an
unanimous opinion of that truly respectable body, conveyed in a
circular letter from Congress to the different states on this very
subject. I bow with proper deference to that great authority. But I
should be unworthy of the high station I hold if I did not speak my
real sentiments as a judge, uninfluenced by any authority
whatsoever. It is certain that in this particular Congress was not
exercising a judicial power, and therefore the opinion is not
conclusive on any court of justice. I feel, however some
consolation in differing from an opinion for which so much respect
must and ought to be entertained by reflecting that though this was
the unanimous opinion of Congress, it was not the unanimous opinion
of the people of the United States. So far from it that I believe
no suit was ever maintained in any court in the United States
merely on the footing of the treaty when an act of the legislature
stood in the way. It was to remove the obstacle arising from such
an opinion that Congress recommended the repeal of all acts
inconsistent with the due execution of the treaty. And I must with
due submission say that in my opinion, without such a repeal no
British creditor could have maintained a suit in virtue of the
treaty, where any legislative impediment existed, until the present
Constitution of the United States was formed.

															2d. The article in the Constitution concerning treaties I have
always considered, and do now consider, was in consequence of the
conflict of opinions I have mentioned on the subject of the treaty
in question. It was found in this instance, as in many others, that
when thirteen different legislatures were necessary to act in
unison on many occasions, it was in vain to expect that they would
always agree to act as Congress might think it their duty to
require. Requisitions formerly Page 3 U. S. 277 were made binding in point of moral obligation (so far as the
amount of money was concerned, of which Congress was the
constitutional judge), but the right and the power being separated,
it was found often impracticable to make them act in conjunction.
To obviate this difficulty, which everyone knows had been the means
of greatly distressing the union and injuring its public credit, a
power was given to the representatives of the whole union to raise
taxes by their own authority for the good of the whole. Similar
embarrassments had been found about the treaty. This was binding in
moral obligation, but could not be constitutionally carried into
effect (at least in the opinion of many), so far as acts of
legislation then in being constituted an impediment, but by a
repeal. The extreme inconveniencies felt from such a system
dictated the remedy which the Constitution has now provided,

															"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 that the judges in every state shall be bound thereby,
anything in the Constitution or laws of any state to the contrary
notwithstanding."

															Under this Constitution, therefore, so far as a treaty
constitutionally is binding, upon principles of moral obligation,
it is also by the vigor of its own authority to be executed in
fact. It would not otherwise be the supreme law in the new sense
provided for, and it was so before in a moral sense.

															The provision extends to subsisting as well as to future
treaties. I consider, therefore, that when this Constitution was
ratified, the case as to the treaty in question stood upon the same
footing as if every act constituting an impediment to a creditor's
recovery had been expressly repealed, and any further act passed,
which the public obligation had before required, if a repeal alone
would not have been sufficient.

															Before I go to the consideration of the words of the treaty
itself, I think it material to say a few words as to the operation
which an actual repeal would have had.

															I believe no one will doubt that everything done under the act
while in existence, so far as private rights at least were
concerned, would have been unaffected by the repeal. If a statute
requires a will of lands to be executed in the presence of two
witnesses, and a will is actually executed in that manner and the
statute is afterwards repealed and three witnesses are made
necessary, the will executed in the presence of two others when the
former statute was in being would be undoubtedly good, and if I am
not mistaken, a will made according to a law in being has been held
good even though the devisor died after an alteration of it. Of
this, however, I am not sure; but the general position, I imagine,
will not be questioned. Page 3 U. S. 278 Let us now see the words of the treaty.

															They are these:

															"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."

															The meaning of this provision may perhaps be better considered
by an analysis of its parts so far as they concern the question
before us.

															1. Creditors -- There can be no creditor without two
correlatives, a debtor and a debt. Prima facie, therefore, if a debtor has been
discharged, he is not the person whom any other person can sue as a
creditor. This probably may be fairly applied to the present
defendant, who as a debtor was discharged by legal authority.

															With regard to the debt, that in the present instance was not
extinguished even by the act of the state, because the right of the
creditor to the money was not taken away.

															The debt therefore remains, but not from the same debtor. The
state may be considered as substituting itself in some measure in
the place of the debtor. The full effect of that substitution I am
not now to consider, nor would it be proper for me at present to
give an opinion upon it. The question is not whether the creditor
is entitled to his money, or in what manner, but whether he is
entitled to recover it against the present defendant.

															2. No lawful impediment.

															These words must be construed as relative to the former, for the
whole clause must be taken together. Therefore, where there are a
creditor and a debtor, there is to be no lawful impediment to the
former recovering against the latter.

															If the present defendant be not a debtor to the plaintiff, how
can the treaty operate as against him?

															The words "lawful impediment," may admit of two senses.

															One "any lawful impediment whatsoever arising from any act done
to the prejudice of a creditor's right during the war." I add that
restriction "during the war" because the rules of construction as
to treaties must narrow the words as to the object, the war, the
affairs of which the Treaty of Peace was intended to operate
upon.

															Or "any impediment arising from any law then in being or
thereafter to be passed to the prejudice of a creditor's
right."

															The latter, I think, is not an unnatural construction, and would
give the words great operation, and I think is to be preferred to
the former for the following reasons:

															1. This would stipulate for what each legislature of the Union
would rightfully and honestly do, relinquish public claims Page 3 U. S. 279 to debts existing before the war, and which otherwise might have
stood upon a precarious footing, for though peace alone would do
away a common law disability to sue, yet I apprehend it would not ipso facto remove a disability expressly created by
statute, much less extinguish any public right acquired under any
act of confiscation.

															2. Though Congress possibly might, as the price of peace, have
been authorized to give up even rights fully acquired by private
persons during the war, more especially if derived from the laws of
war only against the enemy, and in that case the individual might
have been entitled to compensation from the public, for whose
interests his own rights were sacrificed, yet nothing but the most
rigorous necessity could justify such a sacrifice; such a sacrifice
is not to be presumed even to have been intended under the
operation of general words, not making such a construction
unavoidable. For it is reasonable to infer that in such a case
special words would have been used to obviate the least colorable
doubt.

															Thus (for example) if it was stipulated in a treaty of peace
between two European powers "that all ships taken during the war
should be restored," I imagine this would not be construed to
include ships taken by privateers, and legally condemned during the
war, unless it had in fact happened that no other ships had been
taken, and then I suppose they would be understood as comprehended,
and their own nation must have indemnified them.

															3. If, according to the practice in Great Britain, in conformity
to the law of nations, and upon the principles of a mixed
government, in case any impediments had then existed by acts of
Parliament in Great Britain to the recovery of American debts, such
impediments could only have been removed by a repeal, we may
presume the British negotiator had reason to conclude that the
lawful impediments in this country could only be removed in the
same manner, and if so may we not fairly say that the impediments
in view could be no other than such as the legislatures in the
respective countries could do away by a repeal or might by
subsequent laws enact? If they wanted a further act of legislation
grounded not merely on ordinary legislative authority, but upon
power to destroy private rights acquired under legislative faith,
long since pledged and relied on, very special words were proper to
effect that object, and neither in one country nor the other could
it have been effected with the least color of justice but by
providing at the same time the fullest means of
indemnification.

															4. This construction derives great weight from the
recommendatory letter of Congress I before mentioned, for I will
venture to say, had the act they recommended been passed in Page 3 U. S. 280 the state in the very words they recommended, they would not
have had efficacy enough to destroy those payments as a bar. And
yet, if Congress thought such a case ought to have been
comprehended, I presume it would have recommended a special
provision clearly comprehending such cases and accompanied with a
full indemnity.

															I said the words of the treaty would have great operation,
without giving them the very rigorous one contended for. And that
will more fully appear when we take up the remaining words, viz., 3. "To the recovery of the full value in sterling money of all bona fide debts heretofore contracted."

															The operation (exclusive of these payments) would therefore be
this:

															1st. All creditors whose debts had not been confiscated or where
the confiscations were not complete and no payments had been made
would have a right of recovering their debts.

															2d. Perhaps all creditors, whether their debts were confiscated
or not or whether confiscations were complete or not, excepting
those only from whom the government had received the money, would
be entitled to recover, because undoubtedly the respective
legislatures were competent to restore all these.

															3d. Another object of no small importance was to secure the
payment of all these debts in sterling money, so that the creditors
might not suffer by paper currency, either then in existence or
that might be thereafter emitted.

															When these general words, therefore, can comprehend so many
cases, all reasonable objects of the article, I cannot think I am
compelled as a judge, and therefore I ought not to do so, to say
that the general words of this article, shall extinguish private as
well as public rights.

															I hold public faith so sacred, when once pledged either to
citizens or to foreigners, that a violation of that faith is never
to be inferred as even in contemplation, but when it is impossible
to give any other reasonable construction to a public act. I do not
clearly see that it was intended in the present instance. I cannot
therefore bring myself to say that the present defendant, having
once lawfully paid the money, shall pay it over again. If the
matter be only doubtful, I think the doubt should incline in favor
of an innocent individual, and not against him. I should hope that
the present plaintiff will still receive his money, as his right to
the money certainly has not been divested, but I think, for all the
reasons I have given, he is not entitled to recover it from the
present defendant.

															My opinion, therefore, on the whole of this case is that
judgment ought to be given for the defendant upon the second plea,
upon the third, fourth and fifth for the plaintiff. Page 3 U. S. 281 WILSON, JUSTICE.

															I shall be concise in delivering my opinion, as it depends on a
few plain principles.

															If Virginia had a power to pass the law of October, 1777, she
must be equally empowered to pass a similar law in any future war,
for the powers of Congress were in fact abridged by the Articles of
Confederation, and in relation to the present Constitution she
still retains her sovereignty and independence as a state, except
in the instances of express delegation to the federal
government.

															There are two points involved in the discussion of this power of
confiscation, the first arising from the rule prescribed by the law
of nations and the second arising from the construction of the
treaty of peace.

															When the United States declared its independence, it was bound
to receive the law of nations in its modern state of purity and
refinement. By every nation, whatever is its form of government,
the confiscation of debts has long been considered disreputable,
and we know that not a single confiscation of that kind stained the
code of any of the European powers, which were engaged in the war
which our revolution produced. Nor did any authority for the
confiscation of debts proceed from Congress (that body, which
clearly possessed the right of confiscation as an incident of the
powers of war and peace), and therefore, in no instance can the act
of confiscation be considered as an act of the nation.

															But even if Virginia had the power to confiscate, the treaty
annuls the confiscation. The fourth article is well expressed to
meet the very case. it is not confined to debts existing at the
time of making the treaty, but is extended to debts heretofore
contracted. It is impossible by any glossary or argument, to make
the words more perspicuous, more conclusive, than by a bare
recital. Independent, therefore, of the Constitution of the United
States, (which authoritatively inculcates the obligation of
contracts), the treaty is sufficient to remove every impediment
founded on the law of Virginia. The state made the law; the state
was a party to the making of the treaty; a law does nothing more
than express the will of a nation, and a treaty does the same.

															Under this general view of the subject, I think the judgment of
the circuit court ought to be reversed.

															CUSHING, JUSTICE.

															My state of this case will, agreeably to my view of it, be
short; I shall not question the right of a state to confiscate
debts. Here is an act of the Assembly of Virginia, passed in 1777,
respecting debts, which contemplating to prevent the enemy deriving
strength by the receipt of them during the war, provides that if
any British debtor will pay his debt into the Loan Office, obtain a
certificate and Page 3 U. S. 282 receipt as directed, he shall be discharged from so much of the
debt. But an intent is expressed in the act not to confiscate
unless Great Britain should set the example. This act, it is said,
works a discharge and a bar to the payer. If such payment is to be
considered as a discharge or a bar so long as the act had force,
the question occurs was there a power by the treaty, supposing it
contained proper words, entirely to remove this law and this bar
out of the creditor's way?

															This power seems not to have been contended against by the
defendant's counsel, and indeed it cannot be denied, the treaty
having been sanctioned in all its parts by the Constitution of the
United States as the supreme law of the land.

															Then arises the great question upon the import of the fourth
article of the treaty, and to me the plain and obvious meaning of
it goes to nullify ab initio all laws, or the impediments
of any law, as far as they might have been designed to impair or
impede the creditor's right or remedy against his original
debtor.

															"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."

															The article speaking of creditors and bona fide debts
heretofore contracted plainly contemplates debts as originally
contracted, and creditors and original debtors, removing out of the
way all legal impediments, so that a recovery might be had as if no
such laws had particularly interposed. The words "recovery of the
full value in sterling money," if they have force or meaning, must
annihilate all tender laws making anything a tender but sterling
money, and the other words, or at least the whole taken together,
must in like manner remove all other impediments of law aimed at
the recovery of those debts.

															What has some force to confirm this construction is the sense of
all Europe that such debts could not be touched by states without a
breach of public faith. And for that and other reasons, no doubt,
this provision was insisted upon in full latitude by the British
negotiators. If the sense of the article be as stated, it obviates
at once all the ingenious, metaphysical reasoning and refinement
upon the words "debt, discharge, extinguishment," and affords an
answer to the decision made in the time of the interregnum that
payment to sequestors was payment to the creditor.

															A state may make what rules it pleases, and those rules must
necessarily have place within itself.

															But here is a treaty, the supreme law, which overrules all state
laws upon the subject to all intents and purposes, and that makes
the difference. Diverse objections are made to this construction:
that it is an odious one, and as such ought to Page 3 U. S. 283 be avoided; that treaties regard the existing state of things;
that it would carry an imputation upon public faith; that it is
founded on the power of eminent domain, which ought not to be
exercised but upon the most urgent occasions; that the negotiators
themselves did not think they had power to repeal laws of
confiscation because they, by the fifth article, only agreed that
Congress should recommend a repeal to the states.

															As to the rule respecting odious constructions, that takes place
where the meaning is doubtful, not where it is clear, as I think it
is in this case. But it can hardly be considered as an odious thing
to enforce the payment of an honest debt according to the true
intent and meaning of the parties contracting, especially if, as in
this case, the state having received the money, is bound in justice
and honor to indemnify the debtor for what it in fact received. In
whatever other rights this act of assembly may be reviewed, I
consider it in one as containing a strong implied engagement on the
part of the state to indemnify everyone who should pay money under
it pursuant to the invitation it held out.

															Having never confiscated the debt, the state must, in the nature
and reason of things, consider itself as answerable to the value.
And this seems to be the full sense of the legislators upon this
subject in a subsequent act of assembly; but the treaty holds the
original debtor answerable to his creditor, as I understand the
matter. The state therefore must be responsible to the debtor.

															These considerations will, in effect, exclude the idea of the
power of eminent domain, and if they did not, yet there was
sufficient authority to exercise it, and the greatest occasion that
perhaps could ever happen. The same considerations will also take
away all ground of imputation upon public faith.

															Again, the treaty regarded the existing state of things by
removing the laws then existing, which intended to defeat the
creditor of his usual remedy at law.

															As to the observations upon the recommendatory provision of the
fifth article, I do not see that we can collect the private opinion
of the negotiators respecting their powers by what they did not do,
and if we could, this Court is not bound by their opinion unless
the reasons on which it was founded, being known, were convincing.
It would be hard upon them to suppose they gave up all that they
might think they strictly had a right to give up. We may allow
somewhat to skill, policy, and fidelity.

															With respect to confiscations of real and personal estates,
which had been completed, the estates sold, and, perhaps, passed
through the hands of a number of purchasers, and improvements made
upon real estates by the then possessors, they knew that to give
them up absolutely must create much confusion in this Page 3 U. S. 284 country. Avoiding that (whether from an apprehension of want of
power does not appear from the instrument), they were led only to
agree that Congress should recommend a restitution or
composition.

															The fourth article, which is particularly and solely employed
about debts, makes provision according to the doctrine then held
sacred by all the sovereigns of Europe.

															Although our negotiators did not gain an exemption for
individuals from bona fide debts contracted in time of
peace, yet they gained much for this country -- as rights of
fishery, large boundaries, a settled peace, and absolute
independence, with their concomitant and consequent advantages. All
which it might not have been prudent for them to risk by
obstinately insisting on such exemption, either in whole or in
part, contrary to the humane and meliorated policy of the civilized
world in this particular.

															The fifth article, it is conceived, cannot affect or alter the
construction of the fourth article. For first, it is against reason
that a special provision made respecting debts by name should be
taken away immediately after, in the next article, by general
words, or words of implication, which words too, have otherwise
ample matter to operate upon. 2d. No implication from the fifth
article can touch the present case, because that speaks only of
actual confiscations, and here was no confiscation. If we believe
the Virginia legislators, they say, "We do not confiscate we will
not confiscate debts, unless Great Britain sets the example," which
it is not pretended she ever did.

															The provision, that "Creditors shall meet with no lawful
impediment," etc is as absolute, unconditional, and peremptory, as
words can well express, and made not to depend on the will and
pleasure, or the optional conduct of any body of men whatever.

															To effect the object intended, there is no want of proper and
strong language; there is no want of power, the treaty being
sanctioned as the supreme law by the Constitution of the United
States, which nobody pretends to deny to be paramount and
controlling to all state laws, and even state constitutions,
wheresoever they interfere or disagree.

															The treaty, then, as to the point in question, is of equal force
with the Constitution itself, and certainly with any law
whatsoever. And the words, "shall meet with no lawful impediment,"
etc., are as strong as the wit of man could devise to avoid all
effects of sequestration, confiscation, or any other obstacle
thrown in the way, by any law, particularly pointed against the
recovery of such debts.

															I am therefore of opinion that the judgment of the circuit court
ought to be reversed. Page 3 U. S. 285 BY THE COURT. All and singular the premises being seen by the
Court here and fully understood, and mature deliberation had
thereon, because it appears to the Court now here that in the
record and process aforesaid, and also in the rendition of the
judgment aforesaid upon the demurrer to the rejoinder of the
defendants in error to the replication of the second plea, it is
manifestly erred, it is considered that the said judgment for those
errors and others in the record and process aforesaid be revoked
and annulled and altogether held for nought, and it is further
considered by the Court here that the plaintiff in error recover
against the defendants �2,976 11s. 6p., good British money,
commonly called sterling money, his debt aforesaid, and his costs
by him about his suit in this behalf expended, and the said
defendants, in mercy, etc. But this judgment is to be discharged by
the payment of the sum of $596, and interest thereon to be
computed, after the rate of five percent per annum, from 7 July,
1782, till payment, besides the costs, and by the payment of such
damages as shall be awarded to the plaintiff in error on a writ of
inquiry to be issued by the Circuit Court of Virginia, to ascertain
the sum really due to the plaintiff in error, exclusively of the
said sum of $596, which was found to be due to the plaintiff in
error upon the trial in the said circuit court, on the issue joined
upon the defendant's plea of payment at a time when the judgment of
the said circuit court on the said demurrer was unreversed and in
full force and vigor, and for the execution of the judgment of the
court, the cause aforesaid is remanded to the said circuit court of
Virginia. Judgment reversed.

Summary:
Here is a summary of the case:

In *Ware v. Hylton*, the Supreme Court ruled on a case concerning a debt owed by an American citizen to a British subject during the Revolutionary War. The case centered around a Virginia state law from 1779 that allowed debtors to pay their debts owed to British subjects into a state loan office instead of directly to the creditor during the war. The defendant, Hylton, had attempted to use this law to avoid repaying the debt to the plaintiff, Ware, after the war had ended and a peace treaty was signed in 1783.

The Court ruled that the Virginia state law was annulled by the peace treaty, which guaranteed that creditors "shall meet with no lawful impediment" in recovering debts. The Court found that the state law was an impediment to the recovery of debts and therefore violated the treaty. As a result, the Court reversed the lower court's decision and ruled in favor of Ware, allowing him to recover the debt owed by Hylton.

This case established the principle that state laws must comply with treaties signed by the United States and that treaties are the supreme law of the land, on par with the Constitution itself.