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. sect. 4.

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The Baron De Wolfuis, 1222, says, De quibus nihil dictum ea 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 moreable 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 231*] goods taken; and *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 p. 558 to 573.

1774, until the ratification of the articles of confederation, on the 1st of 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 *impliedly ratified by the ac- [*232 quiescence and obedience of the people. After the confederacy was compleated, 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 rerolutionary 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 the 6th of 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. 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 tar 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 is sued by Congress. It was expressly provided. in the 8th article of the confederation, that "all charges of war (and all other expences for the common defence 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 proFrom these observations, and the authority of portion, shall be levied by the Legislatures of the Bynkershoek, Lee, Burlamaque, and Ruther- several States." In every free country the pow forth, I conclude, that Virginia had a right, as er of laying taxes is considered a legislative a sovereign and independent nation, to confis-power over the property and persons of the citicate any British property within its territory, zens; and this power the people of the United unless she had before delegated that power to States, granted to their State Legislatures, and Congress, which Mr. Lewis contended she had they neither could, nor did transfer it to Condone. The proof of the allegation that Vir-gress; but on the contrary they expressly stipu ginia had transferred this authority to Congress, lated that it should remain with them. It is an lies on those who make it; because if she had incontrovertible fact that Congress never atparted with such power it must be conceded, į tempted to confiscate *any kind of Brit- [*233 that she once rightfully possessed it.

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 doc- | trine seemed strange to me in an American Court of Justice. In the case of Wright and 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. Rep. p. 149. In the case of Folliott against Ogden, Lord Loughborough, Chief Justice of the Court of Common Pleas, in deliver ing 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. Rep. 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 Ashurst and Buller were silent. 3 Term. Rep. p. 726.

It has been enquired what powers Congress possessed from the first meeting, in September,

That

ish 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 them. Some of the States did exercise this power, and thence I infer, they possessed it.-On the 23d of March, 3d of April, and 24th of July, 1776, Congress confiscated British property, taken on the high seas.1

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 she did not exercise that right by the act of the 20th October, 1777." If this objection is well founded, the Plaintiff in error must have judgment for the money covered by the plea of that lav, 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 connexion 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 their intention to provide for certain cases, or to punish certain offences, and in enacting clauses to include other cases, and other offences. 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 they 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 their intention.

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, collectirely 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, (page 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 paid into the [*235 I am of opinion, that the law of the 20th of Oc- loan office. Such a construction, therefore, is tober, 1777, and the payment in virtue thereof, too violent and not to be admitted. If Virginia amounts either to a confiscation or extinguish-had confiscated British debts, and received the ment, of so much of the debt as was paid into the loan office of Virginia. 1st. The law makes it laful for a citizen of Virginia indebted to a sub234*] ject of Great Britain *to pay the whole, or any part, of his debt, into the loan office of that commonwealth. 2d. It directs the debtor It appears to me that the plea, by the Defendto take a certificate of his payment, and to de-ant, of the act of Assembly, and the payment liver it to the governor and the council; and it agreeably to its provisions, which is admitted, is declares that the receipt of the governor and the a bar to the plaintiff's action, for so much of his council for the certificate shall discharge him debt as he paid into the loan office; unless the (the debtor) from so much of the debt as he paid plea is avoided, or destroyed, by the Plaintiff's into the loan office. 3d. It enacts that the cer- replication of the fourth article of the Definitive tificate shall be subject to the future direction of Treaty of Peace, between Great Britain and the the legislature. And 4thly, it provides, that the United States, on the 3d of September, 1783. governor and council may make such allowance, The question then may be stated thus: Whether as they shall think reasonable, out of the INTER- the 4th article of the said treaty nullifies the EST of the money paid, to the wives and chil- law of Virginia, passed on the 20th of October, dren, residing within the state, of such creditor. 1777; destroys the payment made under it; and The payment by the debtor into the loan office revives the debt, and gives a right of recovery is made a lawful act. The public receive the thereof, against the original debtor?

1.-See the Ordinance of the 30th of November, 1781. See, also, the Resolution of the 23d of November, 1781, in which Congress recommended to the States, to pass laws to punish infractions of the law of nations.

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 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

But a few remarks will be necessary to shew 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.

vested in individuals, in virtue of such acts. | Constitution, which provides "That all treaties Another of the Defendant's counsel (Mr. Camp-made, or which shall be made, under the aubell) expressly, and with great zeal, denied that thority of the United States, shall be the su Congress possessed such power. preme 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 Constitu tions were made, and by their authority the Constitution of the United States was estab lished; 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 *of the State Legislature, must not be [*237 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 laurs 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 roidable only by a repeal, or nullification by a State Legislature, this certain conse quence follows, that the will of a small part of the United States may controul 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 Consti tution, or laws of any of the States, contrary to a treaty, shall be disregarded.

2d. The legislatures of all the states have of ten 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.

3d. 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 236*1 power of making *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 9th article of the Confederation (ratified by all the states, on the 1st of 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.

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. 3d. 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. 4thly. That it is the declared duty of the State Judges, to determine any Constitu tion, or laws of any State, contrary to that treaty (or any other) made under the authority of the United States, null and roid. National or Federal Judges are bound by duty and oath to the same conduct.1

Surely, the sacrificing public, or private, property, to obtain peace cannot be the cases in which a treaty would be void. Vatt. lib. 2 The argument, that Congress had not power c. 12 s. 160. 161. p. 173. lib. 6. c. 2. 8. 2. to make the 4th article of the treaty of peace. It seems to me that treaties made by Congress, if its intent and operation was to annul the according to the Confederation, were superior laws of any of the States, and to destroy rested to the laws of the states; because the Confeder-rights (which the Plaintiff's Counsel contended ation made them obligatory on all the states. to be the object and effect of the 4th_article) They were so declared by Congress on the was unnecessary, but on the supposition that 13th of April, 1787; were so admitted by the this court possess a power to decide, whether legislatures and executives of most of the states; this article of the treaty is within the authority and were so decided by the judiciary of the delegated to that body, by the articles of con general government, and by the judiciaries of federation. Whether this court constitutionsome of the state governments. ally possess such a power is not necessary now

If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the ber, 1789. 1. vol. p. 53. s. 8. Swift's edition.

1. See the oath in the act of the 24th of Septem

to determine, because I am fully satisfied that Congress were invested with the authority to make the stipulation in the 4th 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 shew how very circumspect the court ought to be before they would decide against the right of Congress to make the stipulation objected to. If Con238*] gress had no *power (under the confedertion) to make the 4th 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 Britian 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 their independence, by the crown of Great Britain. 2d. A settlement of their western bounds. 3d. The right of fishery: and 4thly. The free navigation of the Missis sippi. 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 3dly. 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 pay ment 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 extinguish ment 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. 3d. 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.

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 or 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 4th 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. sect. 263 and 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, *or from probable or rational [*240 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 To secure the recovery of British debts, it was be observed in literal interpretation, is to follow by the latter part of the fifth article, agreed as that sense, in respect both of the words, and the 239*] follows, "That all persons who have construction, which is agreeable to common any interest in confiscated lands, by DEBTS, | use.

If the recovery of the present debt is not within the clear and manifest intention and let ter of the 4th 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 pay ment under it, and to rerire 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 4th article of the treaty in its several parts; and endeavour to affix the plain and natural meaning of each part.

To take the 4th 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.

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into. This provision has also a future aspect in this particular, namely, that no lawful im pediment, 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 any thing but the value in sterling money. The obvious intent of these words was to prevent the operation of past and future tender lars; 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 bord fide. A debt must be bona fide at the time of 2d. "That creditors on either side," without its commencement, or it never can become so af doubt meaning British and American creditors, terwards. The words bona fide, were not pre3d. Shall meet with no lawful impedi- fixed to describe the nature of the debt at the ment," that is, with no obstacle (or bar) arising date of the treaty, but the nature of the debt at the from the common law, or acts of Parliament, time it was contracted. Debts created before or acts of Congress, or acts of any of the States, the war, were almost the only debts in the conthen in existence, or thereafter to be made, templation of the treaty; although debts conthat would, in any manner, operate to prevent tracted during the war were covered by the the recovery of such debts, as the treaty con- general provision, taking in debts from the templated. A lawful impediment to prevent most distant period of time, *to the [*242 a recovery of a debt can only be matter of law date of the treaty. The recovery, where no pleaded in bar to the action. If the word law-lawful impediments were to be interposed, was ful had been omitted, the impediment would to have to qualifications: 1st. The debts were not be confined to matter of law. The prohi- to be bona fide contracted; and, 2d, they were bition 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, 241*] and leaving another; and a fortiori *by taking away the less and leaving the greater. These words have both a retrospective and future aspect.

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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

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 recov ered. 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 4th article taken separately, truly bear the meaning I have given them, their sense collectively, cannot be mistaken, and must be the same.

The next. enquiry 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 recov ery whereof some lawful impediment might be interposed. The present debt was contracted before the war, and to the recovery of it a r ful 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 inter