creditor? And the argument took the following | upon, as ever to have created an impediment to general course.1

the Plaintiff's recovering the debt in controversy? And 2d. Whether such impediment, if it ever existed, has been lawfully removed?

may be advantageously employed to expound, the enacting clauses) is manifestly inconsistent with such an intention. The money, when paid by the debtor into the treasury, was, simply, to remain there, subject to the direction of the Legislature; and as the debtor was not bound so to pay it, the provisions of the act could not amount to a confiscation; but were merely an invitation to pay, with an implied promise, that whoever accepted the terms of the invitation, should be indemnified by the State. Nor was the invitation indiscriminately given to all debtors, but only to those who were sued; from which the inference is irresistible, that whatever responsibility the state meant herself to assume, there was no intention to extinguish the responsibility of the Virginia debtor to the British creditor. The act of the Virginia Legislature, passed the 3d of May, 1779, is in pari materia, and throws light on the construction of the former act; for, there, when the Legislature meant to interpose a bar to the recovery, they have in express terms declared it. Several other acts have passed on the subject, to which it is merely necessary to refer: The act of the 1st of May, 1780, repeals the act [*209 of the 20th of October, 1777, so far as regards the authority to pay debts into the treasury. The acts of the 6th of May, 1782, and 20th of October, 1783, revive the authority of making such payments in relation to British debts; and prevents the recovery by British creditors. The act of the 3d of January, 1788, fixes the amount for which the State will be liable on account of payments into the treasury; to wit, for the value of the money at the time it was so paid, with interest.

E. Tilghman, for the Plaintiff in error. It is conceded that a debt was due from the Defendants to the Plaintiff, at the commencement 1st. It does not appear, from the enacting of the revolutionary war; and it has been de- clauses of the law of Virginia, which has been cided, in the case of Georgia versus Brailsford,ant. | pleaded that the State had any intention to confixp. 1. that although the state had a power to sus-cate the British debts paid into her treasury; and pend the payment of such a debt, during the the preamble (which though it cannot controul, continuance of hostilities, yet that the creditor's right to recover it, revived as an incident and consequence of the peace. There is, indeed, no controverting the general right of a belligerent power to confiscate the property of its enemy, in ordinary cases; though the modern policy of nations abstains from the exercise of that right, in respect to debts. Vatt. B. 3. 8. 77. p: 484. But the relative situation of Great Britain and her colonies was of a peculiar nature, widely different from the situation of the Grecian, or Roman colonies; and, therefore, requiring a new and appropriate rule of action, At the time of the revolution, the creditor and debtor were members of the same society; subjects of the same empire. Had they belonged, originally, to distinct, independent states, both would have anticipated, in the case of a war, an exercise of the power of confiscation; but the event of a civil contest could not be reasonably contemplated, nor provided for. We find, therefore, upon the law of positive authority, as well as upon a principle of natural justice, that even the declaration of independence was deemed to have no obligatory operation upon any inhabitant of the United States, who did not chuse, voluntarily to remain in the country, 208*] or to take an oath of allegiance, to some member of the confederation. 1 Dall. Rep. 53. On the declaration of independence, the American debtor might chuse his political party, but he could not dissolve his obligation to his British creditor; and if he had no power to dissolve it himself, it follows that he could not communicate such a power, to the society of which he became a member. Vatt. Pr. Dis. 8. 5. 11. Besides, there are, certainly, a variety of cases, to which the rigorous power of confiscation cannot, and ought not to extend. Suppose a contract is formed in a neutral country, between subjects of two belligerent powers, the debt thus incurred could hardly be the object of confiscation. An action, it has been adjudged, may be maintained on a ransom bill, even during the continuance of the war. Doug. 19. And, in general, it may be stated, that capitulations, made in time of war, though they embrace the security of debts, as well as other property, must be held sacred. Vatt. B. 3. 8. 263, 264. p. 612. 613.

But supposing Virginia had the right of confiscation in the present instance, two grounds for judicial enquiry will still remain to be explored-1st, Whether an act of the Legislature of that State has been passed, and so acted

1. As I was not present during the argument, I was in hopes to have obtained the briefs of the counsel themselves, for a more full display of their learning and ingenuity in this cause; but being disappointed in that respect, I have been aided by the notes of Mr. W. Tilghman, to whose kindness, it is just on the present occasion to acknowledge, I have been frequently indebted for similar communications, in the course of the compilation for these Reports.

2d. But if any impediment ever existed to the recovery of the debt, it is removed by the operation of the treaty between the United States and Great Britain, Congress having a power to repeal all the acts of the several States, in order to obtain peace; and the treaty made for that purpose being the supreme law of the land. The fourth article declares that creditors on either side shall meet with no lawful impediment to the recovery of debts heretofore contracted; and unless this provision applies to cases like the present, it will be useless and nugatory. An interpretation, which would render a clause in the treaty of no effect, ought not to be admitted. Vatt. B. 2. 8. 283. fifth article expressly stipulates, that Congress shall recommend the restoration of some parts of confiscated property, and a composition as to other parts; but that "all persons who may have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights." Both parties to the treaty seemed to think that there had been no confiscation of debts; and debts were

The

1.-IREDELL, Justice. The State of North Carolina did actually pass a confiscation law.

the great object which the British commissioners | ening the party that employs it. War, indeed, wished to secure. Whatever tends to produce is a state of force; and no tribunal can decide equality in national compacts ought to be between the belligerent powers. But did favoured; Vatt. B. 2. 8. 301. and as the British not Virginia hazard as much by the war, government had thrown no impediment in the way of recovering debts, the American should be presumed to have acted on the same liberal principle, if any doubt arises upon the construction of the public acts. When a statute is repealed, mesne acts are valid; but it is not so, when a subsequent act declares a former one to be void. Jenk. 233. pl. 6. Had the treaty meant to obviate only a part of the impediments, the meaning would have been expressed in qualified terms. But as it could not be supposed, that, after the peace, laws would be passed creating impediments to the recovery of British debts; the treaty cannot be construed merely to intend to prevent the passing future laws, but to annihilate the operation of such as were previously enacted. There is no such clause in the treaties, 210*] which England *made at the same period with France, Spain, and Holland, and for this obvious reason, that those countries had passed no law to impede the recovery of British debts. A change of circumstances, a recognition, ex post facto, will often impose an obligation, which may not, originally, be binding on the party: The debt contracted by an infant, is obligatory on him, if he promises to pay it when of age. The assumption of a certificated bankrupt, to satisfy a debt, which the certificate would, otherwise, have discharged, affords a new cause of action. And the bare acknowledgment of a debt, barred by the statute of limitations, is sufficient to maintain an action against the debtor. So, in the present case, the treaty, operating as a national compact, is a promise to remove every pre-existing bar to the recovery of British debts; and, whatever may have been the previous state of things, this is a paramouut engagement, entered into by a competent authority, upon an adequate consideration.

The

as if she had never been a member of the British empire? Did she not hazard more, from the very circumstance of its being a civil war? It will be allowed, that nations have equal powers; and that America, in her own tribunals at least, must from the 4th of July, 1776, be *considered as independent a [*211 nation as Great Britain: then, what would have been the situation of American property, had Great Britain been triumphant in the conflict? Sequestration, confiscation and proscription would have followed in the train of that event; and why should the confiscation of British property be deemed less just in the event of the American triumph? The rights of war clearly exist between members of the same Empire, engaged in a civil war. Vatt. B. 3. 8. 292. 295. But, suppose a suit had been brought during the war by a British subject against an American citizen, it could not have been supported; and if there was a power to suspend the recovery, there must have been a power to extinguish the debt; they are, indeed, portions of the same power, emanating from the same source. legislative authority of any country, can only be restrained by its own municipal constitution: This is a principle that springs from the very nature of society; and the judicial authority can have no right to question the validity of a law; unless such a jurisdiction is expressly given by the constitution. It is not necessary to enquire, how the judicial authority should act, if the Legislature were evidently to violate any of the laws of God; but property is the creature of civil society, and subject, in all respects, to the disposition and controul of civil institutions. There is no weight in the argument, founded on what is supposed to be the understanding of the parties at the place and time of contracting debts; for, the right of confiscation does not arise from the understanding of individuals, in private transactions, but from the nature and operation of government. Nor does it follow, that because an individual has not the power of extinguishing his debts, the community, to which he belongs, may not, upon principles of public policy, prevent his creditors from recovering them. It must be repeated, that the law of property in its origin and operation, is the offspring of the social state; not the incident of a state of nature. But the revolution did not reduce the inhabit1st. It has been conceded, that independent ants of America to a state of nature; and, if nations have, in general, the right of confisca- it did, the Plaintiff's claim would be at an end. tion; and that Virginia, at the time of passing Other objections to the doctrine are started: It her law, was an independent nation. But, it is is said, that a debt, which arises from a contract, contended, that from the peculiar circumstances formed between the subjects of two belligerent of the war, the citizens of each of the contend-powers, in a neutral country cannot be confising nations, having been members of the same cated; but the society has a right to apply to its government, the general right of confiscation own use, the property of its enemy, wherever did not apply, and ought not to be exercised. the right of property accrued, and wherever the It is not, however, necessary for the Defendant property itself can be found. Suppose a debt in error to shew a parallel case in history; since, had been contracted between two Americans, it is incumbent on those, who wish to impair and one of them had joined England, would the sovereignty of Virginia, to establish on not the right of confiscation extend to such a principle or precedent, the justice of their excep- debt? As to the case of the ransom bill, if the tion. That State being engaged in a war, neces- right of confiscation does not extend to it, sarily possessed the powers of war; and confis-(which is, by no means, admitted) it must be on cation is one of those powers, weakening the account of the peculiar nature of the contract, party against whom it is employed, and strength- implying a waver of the rights of *war. [*212

Marshall, (of Virginia) for the Defendant in error. The case resolves itself into two general propositions: 1st, That the act of Assembly of Virginia, is a bar to the recovery of the debt, independent of the treaty. 2d, That the treaty does not remove the bar.

1. That the act of Assembly of Virginia is a bar to the recovery of the debt, introduces two subjects for consideration: 1st. Whether the Legislature had power to extinguish the debt? 2d. Whether the Legislature had exercised that power?

And the validity of capitulations depends on the same principle. But, let it be supposed, that a government should infringe the provisions of a capitulation, by imprisoning soldiers, who had stipulated for a free return to their home, could an action of trespass be maintained against the gaoler? No: the act of the government, though disgraceful, would be obligatory on the judiciary department.

the use of the state, with orders that the Attorney General should sue all British debtors, could he have sued the Defendants in error, as British debtors, after this payment of the debt into the treasury? Common sense and common honesty revolt at the idea; and, yet, if the British creditor retained any right or interest in the debt, the state would be entitled, on principles of law, to recover the amount.

2d. But it is now to be considered, whether, II. Having thus, then, established, that at if the Legislature of Virginia had the power of the time of entering into the Treaty of 1783, confiscation, they have exercised it? The third the Defendant owed nothing to the Plaintiff; section of the act of Assembly discharges the it is next to be enquired, whether that treaty debtor; and, on the plain import of the term, revived the debt in favour of the Plaintiff, and it may be asked, if he is discharged, how can removed the bar to a recover, which the law of he remain charged? The expression is, he shall Virginia had interposed? The words of the be discharged from the debt; and yet, it is con- fourth article of the Treaty are, "that creditors tended, he shall remain liable to the debt. Sup- on either side, shall meet with no lawful impedpose the law had said, that the debtor should iment to the recovery of the full value, in be discharged from the commonwealth, but not sterling money, of all bona fide debts heretofore from his creditor, would not the Legislature contracted." Now, it may be asked, who are have betrayed the extremest folly in such a creditors? There cannot be a creditor where proposition? and what man in his senses would there is not a debt; and British debts were exhave paid a farthing into the treasury, under tinguished by the act of confiscation. The such a law? Yet, in violation of the expres- articles, therefore, must be construed with refsions of the act, this is the construction which erence to those creditors, who had bona fide is now attempted. It is, likewise, contended, debts, subsisting, in legal force, at the time of that the act of Assembly does not amount to a making the Treaty; and the word recovery can confiscation of the debts paid into the treasury; have no effect to create a debt, where none preand that the Legislature had no power, as be- viously existed. Without discussing the power tween creditors and debtors, to make a substi- of Congress to take away a vested right by tution, or commutation, in the mode of pay-treaty, the fair and rational construction of the ment. But what is a confiscation? The sub- instrument itself, is sufficient for the Defendstance, and not the form, is to be regarded. ant's cause. The words ought, surely, to be The state had a right either to make the con- very plain, that shall work so evident a hardfiscation absolute, or to modify it as she pleased. ship, as to compel a man to pay a debt, which If she had ordered the debtor to pay the money he had before extinguished. The treaty, itself, into the treasury, to be applied to public uses: does not point out any particular description of would it not have been, in the eye of reason, persons, who were to be deemed debtors; and a perfect confiscation? She has thought proper, it must be expounded in relation to the existing however, only to authorise the payment, to ex- state of things. It is not true, that the fourth onerate the debtor from his creditor, and to re- article can have no meaning, unless it applies tain the money in the treasury, subject to her to cases like the present. For instance;-there own discretion, as to its future appropriation. was a law of Virginia, which prohibited the reAs far as the arrangement has been made, it is covery of British debts, that had not been paid confiscatory in its nature, and must be binding into the treasury: these were bona fide subsisting on the parties; though in the exercise of her debts; and the prohibition was a legal impedidiscretion, the state might chuse to restore the ment to the recovery, which the treaty was inwhole, or any part, of the money to the orig- tended to remove. So, likewise, in several inal creditor. Nor is it sufficient to say, that other states, laws had been passed authorising a the payment was voluntary, in order to defeat discharge of British debts in paper money, or the confiscation. A law is an expression of the by tender of *property at a valuation, [*214 public will; which, when expressed, is not the and the treaty was calculated to guard against less obligatory, because it imposes no penalty. such impediments to the recovery of the sterBanks, Canal Companies, and numerous associa- ling value of those debts. It appears, there tions of a similar description, are formed on the fore, that at the time of making the treaty, the principle of voluntary subscription. The na- state of things was such, that Virginia had extion is desirous that such institutions should ercised her sovereign 'right of confiscation, and exist; individuals are invited to subscribe on had actually received the money from the the terms of the law; and, when they have sub- British debtors. If debts thus paid were within scribed, they are entitled to all the benefits, and the scope of the fourth article, those who are subject to all the inconveniences of the as- framed the article knew of the payment; and 213* association, although no penalties are upon every principle of equity and law, it imposed. So, when the government of Virginia ought to be presumed, that the recovery, which wished to possess itself of the debts previously they contemplated, was intended against the reowing to British subjects, the debtors were in-ceiving state, not against the paying debtor. vited to make the payment into the treasury; and, having done so, there is no reason, or justice, in contending that the law is not obligatory on all the world, in relation to the benefit, which it promised as an inducement to the payment. If, subsequent to the act of 1777, a law had been passed confiscating British debts, for

Virginia possessing the right of compelling a payment for her own use, the payment to her, upon her requisition, ought to be considered as a payment to the attorney, or agent, of the British creditor. Nor is such a substitution a novelty in legal proceedings: a foreign attachment is founded on the same principle. Sup

pose judgment had been obtained against the | as is paid into the treasury;"-whereas a confisDefendants in error, as Garnishee in a foreign cation of the debt, would only work a discharge attachment brought against the Plaintiff in by legal inference. To restrict the meaning of error, and the money had been paid, accord- the discharge to a discharge from the state, is ingly, to the Plaintiff in the attachment; but it absurd; for, the state never had a charge afterwards appeared that the Plaintiff in the at- against the debtor; or, if the state had a right tachment had, in fact, no cause of action, hav- to charge him, another consequence, equally ing been paid his debt before he commenced the fatal to the plaintiff's cause, would ensue, that suit: If the treaty had been made in such a the right of the British creditor to charge him state of things, which would be the debtor con- was extinguished; since the debtor clearly could templated by the fourth article, the Defend- not be responsible to both. ants in error, who had complied with a legal judgment against them, or the Plaintiff in the attachment, who had received the money? This act of Virginia must have been known to the American and British commissioners; and, therefore, cannot be repealed without plain and explicit expressions directed to that object. Besides, the public faith ought to be preserved. The public faith was plighted by the act of Virginia; and, as a revival of the debt in question, would be a shameful violation of the faith of the state to her own citizens, the treaty should receive any possible interpretation to avoid so dishonorable and so pernicious a consequence. It is evident, that the power of the government, to take away a vested right, was questionable in the minds of the American commissioners, since they would not exercise that power in restoring confiscated real estate; and confiscated debts, or other personal estate must come within the same rule. If Congress had the power of divesting a vested right, it must have arisen from the necessity of the case; and if the necessity had existed, the American commissioners, explicitly avowing it, would have justified their acquiescence to the nation. But the commissioners could have no motive to form a treaty such as the opposite construction supposes; for, if the stipulation was indispensable to the attainment of peace, the object was 215*] national, and so should be the *payment of the equivalent: the commissioners, in such case, would have agreed, at once, that the public should pay the British debts; since the public must, on every principle of equity, be answerable to the Virginia debtor, who is now said to be the victim. The case cited from Jenkins, does not apply; as there is no article of the treaty, that declares the law of Virginia void. See Old Law of Evidence 196.

Campbell, of Virginia, on the same side. The questions to be discussed are these:-1st. Did the act of Assembly of Virginia discharge the debtor? 2d. Did any subsequent act, or law, of the government, re-charge him?

I. The right of confiscation, in a time of war, is incontrovertibly established; Vatt. b. 3. c. 5. 8. 77. and nothing but the conventional, or customary, law of nations, can_restrain the exercise of that general right. But the conventional, or customary, law of nations is only obligatory on those nations by whom it is adopted. Vatt. Pret. Dise. 8. 24. 25. 17. Vatt. b. 3. c. 28. 8. 287. 292. Even in the English courts, indeed, the confiscation law of Georgia has been adjudged to be valid. If, therefore, the right of confiscation might be exercised by an individual state, nothing can more emphatically prove its exercise, than the language of the act of Virginia. The act is a discharge in express terms, saying, that "the receipt of the proper officer shall Discharge the payer from so much of his debt,

II. In considering, whether anything has been done by the Government, to revive the charge, in favor of the British creditor, it is to be premised, that the state of things, at the time of making the treaty, is to be held legitimate; and whatever tends to change that state, is odious in the eye of the law. Vatt. B. 4. c. 2. 8. 21. Ibid. B. 2. c. 17. s. 305. As, therefore, by the law of nations, a payment under a confiscation discharges a debtor, though if there had been no payment, the debt would have revived at the peace; Bynk. c. 8. p. 177. de reb. bell. nothing short of an express and explicit declaration of the treaty should be allowed so to alter the state of things, as to revive a debt, that had been lawfully extinguished. If then the treaty had been intended to alter the state of things, reason, equity, and law, concur in supposing, that it would have been by a provision, *calling on Virginia, who had [*216 received the money, to refund it in satisfaction of the claim of the British creditor. Adverting to the words of the 4th. article of the treaty, and thence deducing a fair, legal, and consistent meaning, the claim of the Plaintiff cannot be supported. It may not be improper to apply the word Creditors to British subjects; but, it is contended, that the Virginia act interposes a lawful impediment, (not an impediment in fact, such as payment to the creditor himself) to the recovery of the debt, which impediment the treaty intended to remove. The answer, however, is conclusive, that this was not a debt at the time of making the treaty; and, therefore, the expression, whatever may be its general import, cannot be applied to the case. It is urged, likewise, that the words debts heretofore contracted, are peculiarly descriptive of debts of the present class: but the words heretofore contracted, cannot alter the nature and import of the word debt; and those words were necessary to be inserted; because they ascertained the debts, which were, at all events, to be paid in sterling money;-debts contracted afterwards being left to the lex loci, and liable to the tender laws, which the different states had made, or might think proper to make. If, indeed the opposite construction prevails, then all debts, previously contracted, in whatever manner they may have been extinguished, are revived by the treaty. But, surely, obscure words ought not to be construed so as to alter the existing state of things between the two nations, and involve thousands of individual citizens in ruin. It is not now contended, that debts do not revive by the peace; though the Commissioners, who formed the treaty, might entertain doubts on the subject; and, therefore, provided specially for the case. Grotius B. 3. c. 9. 8. 9. says, (though his commentator dissents) that debts are not, of course, revived by a peace; and there are many instances of Conventions between