WARE, ADMINISTRATOR OF JONES, PLAINTIFF IN ERROR, VERSUS HYLTON ET AL.

The Cou-rt,

after great confideration, delivered their opinions, feriatim, as follow :

Chace, Jujtice.

The Defendants in error, on th ' day of July, 1774, palled their penal bond to Farrell and Jones, for the payment of f. 2,976 II 6, of good Britijh money; but the condition of the bond, or the time of payment, does not appear on the record.

On the 20th of-October, 1777, the legislature of the commonwealth of Virginia, palled a law to fequefier Britijh property, In the 3d fedliou of the law, it was enabled, “that it ihould be lawful for any citizen of Virginia, owing money to a fub-je£l of Great Britain, to pry the lame, or any part' thereof, from time to time, as he-ihould think fit, into the loan office, taking thereout a certificate for the fame, in die name of the creditor, with an indoifemcnt, under the hand of the commit-fioner of the-faid office, expreiiing the name of the payer ; arid ihall deliver fuch certificate to the governor and the council’ whofe receipt-ihall • difcbarge-him from fo much of the debt. And the governor and the council 'ihall, in like mannsf, lay before the General Affembly, once in every year, an account of thefe certificates, fpecifying the names of the perfons by, and for whom they were paid; and ihall fee to the fafe keeping of the fame-, fubjeSl to the future direSlions of the legiflature : provided, that the governor and the council may make fuch allowance, as they ihall think reafonable, out of the interest of the-money fo paid, into the loan office, to the wives and children, refiding in the ftate, offuch creditor. On the 26th of April, 1780, the Defendants in error, paid in,to the loan office of Virginia, part of their debt, to. wit, 3,111 1-9 dollars, equal to £. 933 14 0 Virginia currency; and obtained a certificate from the commiffioners 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 fued, on the abovee found contrary to that treaty are by force of the faid article, proftrated before’ the treaty. 3d. That confequently the tt'eaty of 1783 has fupe-rior power to the Legiflature of any State, becaufe no Legif-lature of any State has any kind of power over the Conftitu- . tion, which was-its creator. 4thly. That it is the declared duty of the State Judges to determine any Conftitution, 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 fame conduit*.

The argument, that Congrefs had not power to make the 4th article of the treaty of peace, if its intent and operation was to annul the laws of any of the States, and to deftroy vejled rights (which the Plaintiff’s Council contended to be the object and effect of the 4th article) was qnneceffary, but on the fuppofition that this court poffefs a' power to decide, whether, this article of the treaty is within the authority delegated to that bod-/, by the articles of confederation. Whether this court conftitutionaliy poffefs fuch a power is not neceffary now to determine, becaufe I am fully fatisfied that Congrefs were invefted with the authority to make the ftjpulation in the 4th article. If the court poffefs a powey to declare treaties void, I íhall never exercife it, but in a very clear cafe indeed. One further remark will fhew how very circumfpjft the court ought to be before they would decide againft the right of Cqn-grefs to make the ftipulation objefired to. If Congrefs Rad ho 'power (under the confederation) to make the 4th article of the treaty, .and for want of power that article, is void, would if not be in the option of the crown of Great Britain to fay, whether the other articles, in-the fame treaty, fliall be obligatory on the Britijh nation ?

I will now proceed to the conilderation of the treaty of 1783. It is evident on a perufal of it what were the great and principal ebje&s in view by both parties. There were four on the part of the United. States, to wit. , lit. An acknowledgment of their independence, by the crown of Great Britain. 2d. A fettlementof their weflerft bounds. 3d. The right of fishery: and 4thly. The. free navigation of the Mijffippi-I here were three on the part of Great Britain, to wit„ lit. A recovery by Britijh Merchants,’ of the value infterling money, of debts contrafted, by the citizens-of America, before the treaty;2d. Reftitution of the confifcated ..property" of real Britijh- • fubjedts,- and of -perfons residents in diftridts in-pofieffion of the Britijh forces, and( who had not borne arms againil the United States; and a' conditional reftoration of the confifcated property of all other perfons: and 3dly. A prohibition of all future confifcations, and profecutions. The following fadts . were of.the moil public notoiiety, at the time when the treaty was made, and therefore muft have been very-well known to the gentlemen who aflented to it. lit. That Britijh debts, to a great amount, had been paid into fome of the State Treasuries, or loan offices, in paper money of very.little value, either under laws confifcating debts, or under laws autborifing payment of fuch debts in paper money, and difeharging the debtors, ad. That tender laws had exifted -in all the ftates; and that by fomd of thofe laws, a tender and a refufal to acceptj by principal or factor, was declared 'an extinguishment of the debt. P'rom the knowledge that fuch laws had exifted there was good reafon to fear-that Jimilar laws, with Únjame or lefs confequences, might be again made, (and the fa£t really happened) and prudence required to guard the Britiih creditor againil them. 3d. That in fome of the States property, of any kind, might be paid, at an appraifement-¡ jn di ¡charge of any. execution. 4th. That laws were' in force in fome of the States, at the time of the treaty, which prevented fuits by Britijh ere-' Editors. 5th. That laws were in force in other of the States, at the time of the treaty,- to prevent fuits by any perfm for a limited time. Ail thefe laws created legal impediments, of one kind or another, to the recovery of many Britiflj debts, contracted before the -war; and in many cafes compelled the receipt of property inftead of gold and filver. To fecure the recovery of Briti/h debts, it was by the latter part of the ¾⅛ article, agreed as follows, “ That all perfons who have any intereft in confifcated lands, by debts, fhould meet with no lawful impediment in the profecurion of their juft-rights.” This provision clearly relates -to delts fecuredby mortgages on lands in fee ftmpie, which were afterwards con-fiicatcd'; or to debts oh judgments,, which were a lien on lands, Tjdiich alfo were afterwards confifcated, and where fuch debts on mortgages, or judgments, had been paid into the State Treafuries, and the debtors difeharged. This ftipujation was abfolutelvneceflary if fucb debts were intended to be paid. The pledge, or fecurity by lien, had been confifcated and fold. Britijh fubjedts being aliens, could neither recover the poilef-fion of.lands by ejediment, nor foreclofe the equity of redemption ; nor could they claim the money fecured by a.mortgage, or have the benefit of a lien from a judgment, if the debtor had paid his'debt into the Treafury, and been difeharged. If a Britijh fubjedt, in either of thofe cafes, profecuted his-juft right, it could only be in a court of juftice, and if any of the above caufes were fet up as a lawful impediment, the courts were bound to decide, whether this article of the treaty nullified the laws confifcating the lands, and alfo the purchases made under them, or the laws authorizing payment-of fuch debts to the State; or whether aliens were enabled, by this article, to hold lands mortgaged to them before the war. In all thefe cafes, it feems to me,. that the courts, in winch the cafes arofe, were the only proper authority to decide, whether the -cafe was within this.article of the treaty, and the operation and eftet can only be matter of law pleaded in bar to the adlion. If the. word lawful had been omitted, tjie impediment would not be confined to matter of law. The prohibition that no lawful impediment fhall be inUrpofed, is the fame as that all lawful impediments {ball be removed. The meaning cannot be fatisfied by the removal of one impediment, and leaving another; and a fortiori by taking away the lefs and leaving tint greater. Thefe words have both a retrofpective and future afpect.

4th. “To the recoyery,” that is,, to the right of action, judgment, and execution, and receipt:.of the money, without impediments in courts of juilice, which could only be by plea, (as in the prefent cafe) or by proceedings, afler judgment, to compel receipt of paper money, or property, inftead of Herding money. The word recovery is very comprehenlive, and operates, in the prefent cafe, to give remedy from the commencement of fuit, to the receipt of the money.

5th. “ In the full value in Jlerling money,”' that is, Britijh-creditors ihall not be obliged to receive paper money, jor property at á valuation, or any thing elfe but the full value of their debts, according to the exchange with Great Britain. This provifion is.clearly rejlrilled to Britijh debts, controlled before the treaty, and cannot relate to debts contracted afterzvards, which would.be difcliargeable according to contrail, and the laws of the State where entered into. This provifion has al-io a future afpeit in this particular, namely, that no lawful. impediment, no law of any of the States made after the treaty, ihall oblige Britifio creditors to receive their debts, controlled before the treaty, iri pape /-.money, or property at afpraifement, or in any thing but the value in iterling money. . The obvious intent of thefe words was to prevent the operation of past and future tender laws; or-past and future laws, authorizing the difeharge of executions for fuch debts by property át a valuation.

6th.- “ Of all pona fide debts,” that is, debts of every fpe-cics, kind, or nature, whether by mortgage, if a covenant-therein for payment; or by judgments, fpecialties, or fimple contrails. But the debts contemplated w'ere to be bona fide debts, that is, bona fide controlled befipre the peace, and con - trailed with good faith, or honeilly, and without covin, and not kept on'foot fraudulently. Bona .fide isa legal-technical expreílion ; and the law of Great Britain and this country has annexed a certain idea,to it. It is a term ufed in flatútes in England, and in ails of Afiembly of all the States, and fig-nifies a thing done really, with a good faith, without/h?W, or deceit, or collufton, or trust. The words bona fide are restric-five, for a debt may be for a valuable confideraiion, and yet not bona fide. A debt mu ft be bona fide at the time of its commencement, or it never can become fo afterwards. The words bona fide, were not prefixed to deferibe the nature.oí the debt át the date of the treaty, . but the nature of the debt at the tbne it ivas contracted. Debts created before the war, were almoft the only debts in the-contemplation of the treaty; although debts’contracted during the zvar were covered by the general provifion, taking in debts from the moil diftant period of time, to the date of the treat". The recovery, where no ¡awful impediments, were to be interpofed, waste have two qualifications : -lit. The debts were to be bona fide contracted-, and, 2d, they were to be contracted before the -peace.¹

7th. “ Heretofore contracted,” that is, entered into at any period óf time before the date of the-treaty y without regard to the length or diftance óf time. Thefe words are deferiptive of the particular debts that might be recovered; and relate back to the time fiuch debts were contracted. The time of the contract was plainly to deftgnate the particular debts that might be recovered. A debt entered into 'during the war, would not have been recoverable, unlcfs under this defeription of a debt contracted at -any thne before, the treaty.

If the words of the 4th article taken fepqrately, truly bear the meaning¹ have, given them, -their fenfe collectively, cannot . be miftaken, and rn.uft be the fame.

The next enquiry is, whether the debt in queftion, is one of •thofe, defended in this article. It is-vary clear that the article contemplated no debts but thofe contraded before the treaty ; and no debts but only thofe to the recovery whereof fome lavs - ful impediment might be interpofed. The prefent debt was-contrafted 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 fued for, is within the defeription, if¹, have given a proper interpretation of the words. If the treaty had been filent 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 {hews -that the ohly impediment to the recovery of. the debt in queftion, is the law of Virginia, and the payment under.it; and the treaty relates to. every 'kind of legal impediment. -

But it is aiked, did the 4th article intend to annul a law of the ftates ? and deftroy rights acquired under it ?

I anfwer, that the 4th árticie'did intend to deftroy áll lawful' impediments, pafi and future ; and that the law of Virginia,. and the paj'ment under it, is a lawful impediment; and would bar a recovery, if not deftroyéd by this -article .of the treaty, This 'itipuiation could n.ot intend only to repeal .laws that ere-' .ated legal impediments* to the recovery of the debt ( without •refpect to the mode of payment) beoáufe the mere-repeal of ⅛ few would not deftroy acts done, and rights acquired, under' tire law* during it 's exijlence and before the repeal. This right to repeal was only admitted by the council for the Defendants in error, becaufe a repeal would not affeCt their cafe; but on the-fume ground that a treaty .can repeal a law of the ftate, it can • nullify ¡tí I have already proved,, that a treaty can totally cmnth Hate any part of the Confutation of any of the individual flates, that is contrary to a treaty. It is admitted' that the treaty intended and did annul fome laws of the ftate?, to wit, any laws, paji or future, that authorifed a tender of paper, money lo extinguiih or difcharge the debt, and any laws, paji or future, that authorifed' the dilcharge of executions hy paper money, or delivery of property at appraifement; becaufe if the words sterling money have not this effect, it cannot be ihewn that they have any other. If the treaty could nullify fome .laws, it will be difficult k> maintain.that it-could not equally annul others. .

It was argued, that the 4th article was neccifary 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 4th article was notneceffary on that account, be-* caufe there Was no doubt that debts not paid do. revive.by-the law of nations; as appears from Bynkerjhock, Lee,' and Sir Thomas Parker. And if neceffary, this article would not have this effedt, becaufe it revives no debts, but only thofe' to which fome legal impediment might be interpofed, and there could be no legal impediment, or bar, to the recovery, after. -- peace, of debts not paid, during the war to the ftate.

. It was contended, that the pro.vifi.on is, that creditors, ihall recover, &c. and there was no creditor at the time of the treaty, becaufe there was then no debtor, he having been legally difeharged. The creditors' defcribed'in the treaty, were • not creditors generally, but only thofe with whom debts had been contra&d,.,at fome time before .the treaty; and is a de-feription of perfons, and not of their rights-. This adhering to the letter, is to deftroy the plain meaning of the proviiion; becaufe, if the treaty' does not extend to debts paid into the ftate treafuries, or loan offices, it is yery clear that nothing was done, by the treaty as to thofe debts, not .even fo much as was ftipulated for Royalists', and Refugees, to wit, a recommendation of restitution. Further, by this cor.ftruftion, nothing was done for Britijh creditors, becaufe the law of nations fecured a recovery of their debts, which had not been confif-cated and paid to the ftates; and if the debts paid in paper money, of little value, into the ftate treafuries, or loan offices, were not to' be paid to them, -the article was of ho .kind of value to them, and they were deceived, The article relates either to debts not paid, or, to debts paid into the treafuries, or loan offices. It has no relation to the first, for the reafons above affigned; and if it does not include the latter jt relates tq nothing^

It was faid that the treaty fecured Britijh creditors from payment in paper money. This is admitted,, but it is by force and operation of the wordsin sterling money f but then the words, “ heretofore ' contractedf are to have no effect zvhatfo-ever ; and it'is thofe very words,- and thofe only, that fecure the recovery of the debts; paid to the ,ftates ; becaufe no lawful-impediment is to-be allowed to ‘prevent the recovery of debts contracted 'at any time before the treaty.

But it was alledged, that the 4th article only ftipulates, that there íhall be no lawful impediment, &c. bur that a law of the ftate was firft neceiTary.tO i?««zz/ thqjaw creating fuch impediment;'and that the ftate is under a moral obligation' to país fuch a law; but until it is doné, the impediment remains,

I confider the 4th article in this light, that it-is not a ftipu-Jation that certain a¿ls íhall be done, and that it was necefiary for the legiilatures of individual ftá.tes, to do thofe a£ts ; .but that it is .an exprefs agreement, that certain things íhall hot be permitted the American courts of juftice; and that-it is a .contradi-, on behalf of thofe courts,, that-they will not allow fuch afis to' be pleaded in bar, to prevent árecovery of' certain Britijh debts. Creditors are-to meet with no lawful impediment, See.” As creditors can only fue for the recovery of their debts, in courts of j.uilice; and it is only in courts of juftice that a legal 'impediment can be fet up by way .of plea, .in bar of their a iions; it appears to me," that the 'courts are bound'to overule every fuch 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 fterling' money, can only be prevented by a like plea in-bar to the adiion, as tender and . refufa), to operate as an extinguiíhment. After judgment, páyment thereof in sterling money can only be prevented by ibrne proceedings under fome law/that authorifes the debtor to difeharge an execution in paper money, or in property, at .a valuation, in al! thefe, and • fimilar cafes, 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 ftipulate, that certain a£ts íhall be done by the Legiflature ; that other a£ts íhall be done by the Executive; and others by the Judiciary. In the ^th article it is provided, that no future, profe-cutions íhall be commenced agai nit any perfon, for or byrea-foh of the part he took in . the war. ' Under , this arficle the American courts of juftice difeharged the. profecutions, and the perfons, on receipt of the treaty, and the proclamation of Con-grefs. j Dali. Rep, 233.

If a law of the State to annul a former law was firjl necefr fary, it muft be either on the ground that-/¿¿ treaty could not annul any lava of a State; or that the words ufed in the treaty Were not explicit or effectual for that purpofe. Our Federal Coiiftitution eftabliihes the power of a treaty over the conflitution and laws of any of the States; and I have ihewn that the words of the 4th article were intended, and are fuffi-cient to nullify the .lava of Virginia-, and the payment under it. It was contended-that Virguláis interefted in this queftion,' and ought to compenfate the Defendants in error, if obliged to pay the Plaintiff under the treaty. If Virginia had a right to receive the money, which I hope¹ have clearly eftabliihed, by what law is ihe obliged to return it ? The treaty only fbeaks of the original debtor, and, fays nothing about a recovery from any of the States.

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

That Congrefs had the power to facrifice the rights and in-ierejls of private citizens to fecure the fáfeiy or profperity of the public, I have no doubt; but the immutable principles of juftice; the-public faith of the States,-that confifcated and received Britijh debts, pledged to the debtors ; and the rights of the' debtors violated by the treaty;.all combine to prove, that ample compenfation ought tobe made to all the debtors who have been'injured’by the treaty for the benefit of the public. This principle is recognized by the Conftitution, which declares, “ that private property ihall not be taken for public life, without juji compenfation,,. See Vattél. lib. 1. c. 20. f 2441'

Although Virginia is not bound-to make compenfation to the debtors, yet it evident that they ought to be indemnified, and it is not to be fuppofed, that thofe whofe duty it may be to make the compenfition, will permit the rights of our citizens to bo-iácrificed to a public objeEl, without the fulleft indemnity. .

On the beft inveíligation I have been able to give the 4th article of the treaty, i cannot conceive, that the wifdom of tnen could exprefs their meaning in more accurate and intelligible words, or -in wprds more proper and effeitual to carry their intention into execution. ' I am fatisfied, that the words, - in their natural import, and common ufe, give a recovery to the Britijh creditor from his original debtor of the debt con-trailed before ..'the treaty, notwithstanding the payment thereof into the public treafuries, 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 begeverfed, find that .judgment ought to be given, on the demurrer, for the Plaintiff in error; with the coils in the Circuit'Court, and.the coils of the: ap'peá!.

' / Paterson, Juftke.t

The prefect fuit is inftituted on a /bond bearing date the 7 th of July-ii']^, and executed by Daniel-Lawrence Hylton & Co. arid Francis Eppes, citizens of the?, State of Virgipia, to Jefiph Barrel and IVillism Jones, fubjedts of the King of Great Britain, for the payment of £2,976 1 if 6d. Britijh, or ftetling, money.

The. Defendants, among-other pleas, .pleaded, ift. Payment; on which iffue is joined;

2d. That 31 n 1-9 dollars, equal to, £ 933 14/ p'd. part of the debt mentioned in the declaration, were, on the 26th of-April 1780, paid b'y them into the loan office of Virginia pur-fuant to an adt of that State, paffed the 20th of October 1777, entitled, “ An adt for fequeftering Britijh property, enabling “ thole indebted to Britijh fubjedts to pay off fuch debts, and “ diredtirrg the proceedings in fuits where fuch fubjedts are “ parties”. The'material fedtion of ‘the adt is recited in the plea.' .

• To this plea-the Plaintiffs reply, and.,fet up the 4th article of the treaty, made the 3d. of September 1783, between the United States and his Britannic .Majefty, and-the Conftitution of the United States making treaties' the fupreme law of the land.

The rejoinder fets forth, that the -debt in the declaration mentioned, or fo much thereof as is equal to the fum of £ 933 lip od. was not a bona Jide debt'due a:_d owing to the Plain- ' tiffs on the 3d of September 1783, becaufe the Defendants had, on the 26th of -April 1780, paid, in part thereof, the, fum of 3111-1-9 dollars into the loag office of Virginia;• and obtained a certificate and receipt therefor purfuant to-the diredtions of the faid adt; without that, that the faid treaty of ?eace, and the Conftitution-of the United States entitle the . laintiffs to maintain their adtióri .againft the'Deferidants for fo much of the faid debt in the declaration mentioned as.is equal to £ 933 14/ - _ ,

_ , To this rejoinder the Plaintiffs demur. The defendants join in demurrer. On this ¡flue in law judgment was.entered for the Defendants in the Circuit Court for the Diftridt of 'Virginia. A Writ .of Error has been brought, and the general errors are affigned. •

The queftion is, whether the judgm nt rendered in the Circuit Qourt be erroneous? I mall not purfue the range of diicuffion, which was taken by the Counfel on the part of the Plaintiffs'in error. | do.not deem it neceflary to enter on the queftion, whether the Legiflature of Virginia had authority to make an adt, confifcating the debts due from its citizens to-the fubjedts óf the king of Great Britain, fubjedh*

The preamble reprobates the dodtine as being inconiiftervt. wi.th public faith, a.iid the law and ufages of nations. TJife •payments made into the loan office were voluntary snd • not cornpulfive; for it was in the option of the debtor to pay or not. The enadting claufe will admit of a conftrudtion in-full . confiftency with, the preamble ; for, although the certificates were to be fubjedt to the future diredtion of the Legiflature, yet -it was under the exprefs declaration, that there ihould bé ' no confifeation, unlefs the King of Great Britain ihould fet the example; if he ihould confifcate debts due to the citizens . of Virginia,- then the Legiilat'ute of Virginia would cor.meats debts due. to Britijh fubjefts. But the King of Great Britain did not confifcgte debts on his part, and the Legidature of Virginia have not confifc'ated debts on their part. It is, however, faid, that the payment' being made Under the act, the faith 0 f Virginia is plighted. True—butte 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'fha-ped and varied according to the .event—if one way,- then to the'creditor}'if another, then to the debtor. Be thefe points as they may, the Legiflature thought it expedient to declare to what amount Virginia -fhould be bound-for payments-fo made. The aft for this purpofe was palled onthe^d of 'January, IjSo ; and'is-entitled 44 An' áft concerning monies, paid jnto u the public loan office, in payment of Britijh debts.”

“ Seftion 1. Whereas;by an aft of the General Affembly, 44 entitled 4 An aft for fequeftering Britijiy property, enabling 44 thofe-indebted to Britifi.’} fubjefts, to pay off-fuch debts, and 44 direfting the proceedings in fuits .where fuch fubjefts are “ parties}” i't is among other things provided, that it'ihall and “ maybe lawful for any-citizen of this commonwealth, owing 44 money to afubjeft of Great Britain, to pay the fame,'or any 44 part thereof, from time to time, as he ihall think fit, into the 44 faid loan office, taking thereout a certificate for the fame,- in. 44 the name of the creditor; with an indorfement under the hand 44 of the commiffioner of the faid office,- expreffing the namebf “.the payer; and íhail-deliver fuch certificate to the governor 44 and council, whofe receipt ihall'difcharge him from fo much 44 of thfa d.ebt; and the Governor and Council ihall, in like man-44 ner, lay before the General Affembly, once in every -.year, an “ account of thefe certificates, fpecifying the names of the per- “ ions, by and for. whom, they were paid, and ihall fee tothefafe “ keeping of the Tame, fubjeft to the futuredireftion of the Le-44 giflature.

44' Seft. 2. And whereas it belongs not to the Legislature to 44 decide particular queftions, of which the judiciary have cogni-44 zancé, and it is therefore unfit for them to determine, whether .44 ⅜-e payments fo made into the loan office, as aforeuid, be good. 44 or void between the creditor and debtor. But it is expedient - 44 to declare to what amount this commonwealth may be bound 44 for.the payments aforefaid. Be it enabled .and declared,¹ hat' “ this-commonwealth ihall, at no time-nor in any event or con-44 tingency, be liable to any .per fon or perfons wbatfoever, for 44 any fum, on account of the payments aforefaid, ether than the 44 value thereof when reduced by th'efcalc of depreciation, efta-44 la bribed by one other aft of the General Aflcmbly, entitled 44 An abt direfting the mode of adjufiing and fettling the’pa y-merit of certain debts and contrails, and for .other • piirpofes, “ with intereft theteon, at the rate of fix per centum per an- “ num; any law, ufage, cuftom, or airy adjudication or con- “ ftruition of the firft recited ait already made, or hereaf-⅛ to be máde notwithftandipg.”

On the part of the Defendants; it has been alfo urged, that it is immaterial whether the payment-be voluntary or compul-fivej becaiife the payer, on complying with thé’ direitions of the aitj Ihall be difcharged from fo much of the debt. Be it fo. If the Legislature had authority to make the ait, the Con-grefs could, by treaty, repeal the ait, and annul every thing done under it. This leads iis to confider the treaty and its operation. Treaties mutt be conftrue'd in fuch manner, as to effeituate the intention of the parties; The intention is to be colleited from the letter and fpirit of the inftrument, and may be illuftrated and enforced by confiderations deduciblefrom the Situation of the parties; and the reafonablénefs, juftice, and nature of the thing, for which provifion-has been made. The 4th article of the treaty gives the text, and runs in the following words:

“ It is agreed, that creditors on either fide, ihall meet with no ⅛ legal impediment to thérecovery of the full value in fterling “ money, of all bona fide debts heretofore contracted/’

The phrafeology made ufe of, leaves in my mind no room to hefitate as to the intention of the parties. The'terms are unequivocal and univerfal in their Signification, and dbvioufly > point to and comprehend all creditors, and all-.debtors, previ-oufly to the 3d of September, 1783. In this article there ap*-péars to be a Selection of expreilions plain and extenfive in their import, and admirably calculated to obviate doubts, to. remove difficulties, to defignate the objects,- and afeertain the intention of the contending powers, and, in fhort, to meet and, provide for all poffible cafes that could arife under the head or debts. The words “creditors on either fide,” embrace every defeription of creditors, and cannot be limited or narrowed down to fuch only, whofe debtors had not paid into the loan office of Virginia. Creditors muft have debtors; debtors is th'e correlative term. Who are thefe debtors ? On the part of the Defendants in error, it fias been contended, that Virginia is the fubftituted debtor, fo far as repedts debtors, who may have paid money into the loan office under' its laws; Bur the Idea, that the, treaty may be Satisfied by fubíti-, tuting the ftate of Virginia in the Head of the original debtor, is far fetched, and altogether inadmiffible. The terms in which the article is exprefTed, clearly evince a contrary intention, and naturally and irrefiftably carry the" mind-'bacic to the . debtor; for, as between the creditor and rhe itate of Virginia, there was no expréfs and pre-exifting ftipii-latfon or debt. Befides, what lawful impediment was to be removed out'of the way of the creditor, if Virginia was the fubftituted or felf-created debtor ? Did this •claufe’make Virginia liable to a profecution for the debt ? Is Virginia now finable by fuch -Britijh creditor? No; he would in fuch cafe be totaily remedilefs, unlefs the nation of which he is a fubjecl, would interpole in his behalf. The wort's “ ihall meet with no. lawful impediment,” refer to legiílative arils, and every thing done under them, fo far as the creditor might be affc-Sed or obftrucfted in regard either to ids remedy or right. All-lawful impediments, of whatever kind, they might be, whether they-rclated to perfonal difabilities, or confifcatioris, fequef-trations, or payments into loan Offices or treafuries, are reino-vedi No aril of 'any ftafe legiflature, and no payment made under fuch-act into -the public coffers, ihall obftrurit the credit-or in his courfe of recovery againfthis debtor; The aril i'tfelf is a lawful impediment, and therefore is, repealed ; the payment under the ait is alfo a lawful impediment, and therefore .¡s, made void. The article is to be conftrued according to the fubjerit matter or nature of Ae impediment; it repeals .in the firft iriftance, and nullifies in the fecund. Unlefs this be the conftrurilion, it is not true, that the creditor fha.ll meet with no legal in.pediment to the recovery ot his debt. Does not the plea in the prefent cafe contradiril tjie treaty,,arid raife an impediment in the way of recovery, when the treaty declares, there-lha-ll be-none ? Pa-yinents made in paper money into loan. 0Fees, and treafuries, were the principal impediments to.be removed, and rnifehieis to he redreffed. The article ritakes provifion accordingly. It ftipulates, that the'' creditor Ihall recover the fall value of his debt in fterling money; hereby,iecuiing and guarding him-agairift-all payments' in paper money. Suppofe the creditor ihould call-on Virginia for payment—what Wo.u-ld it. be—the paper money .paid into the loan-office,. of its-value. Would'this be a compliance with the article ? In the one . cafe, the-money being cried down and dead, is no.better than•• w.afte paper; and in the other, the payment, when, reduced by the'table"of depreciation,, would be in-coafiderable, md in--.many cafes not more than. fix-pence in. the pounfif" Can-this be-.called' payment to the-full' value. pfAfe '• debt in.-ften'ing.money.?. The fiibfequent expref--lions-in-; the article,, enforce' the preceding obfervatiüns, and mark ¡the. will and-intention; of the conrradfing'{Jarcies, in the moil clear and. precife terms. Theconcluding words are-, w all' bpn^idc-debts heretofore con trariced. ’ ’ In the conftruc-,⅜⅛⅛. ofi conCtedis,. words, aie to-be taken in-their natural and obvious, meaciog,; ur.kf&fcms good reaíba be affigned, ,to ihew,.' ' that they fhould be underftood in a different fenfe, Now, if a perfon, in reading this article, fhould take the words in thejr common meaning, and as generally understood, could he miftake the intention of the parties ? Their defign Qnqueftionably was, to reftore the creditor and debtor to their origina! fíate, and place them precifely in the fituation they would have flood, if no war had intervened, or aft of the Legifiature of Virginia had been pafied. The impediments created by Legifiative ails, and the payments made in purfuance of them, and all the evils ' growing out of them, were, fo far as refpeited creditors, done away and cured. This is the only way in which all lawful impediments'can be removed, and all debts, con ( rafted before the .date of the treaty, can be recovered to their full value, by the creditors againil their debtor'. It has, however, been urged, that this article muft be reftrided to debts-exifting and due at the time of making the treaty; that the debt in queftion was difcharged, becaufe it has been paid into the Loan Office,-agreeably to law ; and that thwtreaty ought not tobe confirmed fo as to renovate or revive it. To enforce this .objection, the rule laid down by Vattel was relied on, •“ that the fíate of things at “ the inftant of the treaty, is to be 'held legitimate, and any “ change to be made in it requires an exprefs fpccification in “the treaty; confequently aft things not mentioned in the “ treaty, are to remain as they were at the conclufion of-.it.” Vatt. B. 4. c. 2. f. ⅞1. Thefirfl part of the ohjeftion has been already anfwered; for it is within both the letter and fpirit of the inflrument, that the creditors fhould be reir.ftatcd, and, of courfe, that the debtors fhould be liable to pay. The aft of Virginia, and the payment under it have, fo far as the creditor is concerned, no operation, and are void. There is no difficulty in .anfwering the objection arifing from'the paflage in Vattel.. The univerfality of the terms is equal to an exprefs fpecification in the treaty, and indeed includes it. For it'is fair and conclusive reafiminc, that-if any deicription of debtors or clafs of cafes was intended to be excepted, it would have-been fpecified in the inflrument, and the words, “ that credi-,c tors on either fide, fhall meet with no lawful impediment to “ the recovery of the full value in ftcriing money of all debts “ heretofore contracted,” would not have been made ufe of in .the unqualified manner, in .which they Hand in the treaty. Another article in the treaty now under review, v/fti ferve by way of illuftration.

“Article VLÍ. There íhallhe a firm and perpetual peace, “between his Britannic Majefty and the faid States, and between the fubjects of the one and the citizens of the other, wherefore “ all hoftilitie?.both by fea and land jhall then immediately ceafe: ‘‘‘.all prifoners on both tides fhall beLt at liberty, and his Britannic “ Majefty ihall, with all convenient fpeed, and without cauf- “ ing any deftruftion, or carrying away any negroes or other “ property of the American inhabitants, withdraw all his armies, “ garrifons and fleets from thefáid United States-, and from every “port, place and harbour within the fame; leaving in all fortifi-' “cations the American artillerythaf may be therein. And ihall “alfo order and caufe all archives, records, deeds, and papers, “belonging to any of the faid States, or their citizens, which ⅛ “ the courfe of the war may have fallen into the hands of his officers, to be forthwith reftored and delivered tothé proper States “and pérfons to whom they belong. ” Would it be an objection on the part of his Britannic Majefty, that the ftate.'of things at the inftant of the treaty is tobe held legitimate, and any change to be made in it, requires an exprefs fpecification ? That the forts are not. fpecified, and therefore npt to be given up ? The objection would beconfidered as futile and evafive. The an-fwer would be, that there is no doubt, becaufe. the expreifions are general; comprehend the forts, and are equal to an exprefs fpecification.' So in the prefént cafe, the univerfality of the terms are equal to a fpecification of every particular debt, or aq enumeration of every creditor and debtor, It is the fame thing as though they had been individually named,. All the creditors on either fide, without diftinCHon; muft have been contemplated by the parties in the fourth article. Almoft every, word, fe-parately taken, is expreffiveof this idea, and when all-thé words are combined and taken together, they remove every particle of doubt. But if the clafs of Br.itijh creditors, whofe debtors have paid into the Loan Office of Virginia, are not comprehended in the fourth article, then they pafs without redrefs, without notice, without fo much as a recommendation in their favour. The thing is incredible.' Why a diftinCtion—why ihould the creditors, whofe debtors paid into the Loan Office, be in a worfe fituation than the creditors, whofe debtors did not thus pay ? The traders, and others of this country, were largely indebted to the merchants of Great Britain. Topro- , vide fof the payment of thefe debts, and give fatisfa&ion to thi§ • clafs of‘fubjeCts,'muft have been a matter‘of'primary importance to the BritiJI) miniftry. ' This, doubtlefs, is at all times, and in all fituations, an objeCt of moment to a commercial country, The opulence, refources, and power of the Britijh nation, may, in no final] degree, be afcribed to its commerce; it is a nation of manufacturers and merchants. To proteCt their interefts and provide for ’the payment of debts due to them, efpecially when thofe debts amounted to an immenfe fum, could not fail of arrefting .the attention, and calling forth the utmoft exertions of the Britijh cabinet. A meafure of this kind, it .is eafy to perceive, would be purfued with unremitting diligence and ardour; facrifices would be made to enfure its fuccefs-; and, perhaps, nothing ihort of - extreme neceííity would induce them to give it up. But, if the debts, which have been confifcated, or paid into loan offices, or treafuries, be not within the provifion of the fourth article, then a numerous clafs of Britijh merchants are paffed over in filence, aud not fo much attended to as the loyalifts, or Americans, who attached themfelves to the caufe of Britain during the war. Is it a fup-pofable cafe, that the BritiJh negociators would have been more regardful of the interefts of the loyalifts than of their own merchants ? That they would make a diferimination between merchants, when in a national and political view, and in the eye of juftice, they were equally merritorious, and entitled to receive complete fatisfaftion for their debts? No line ftiould be drawn between creditors unlefs 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 expreffed. The indefinite and fweeping terms made ufe of by the parties, fuch as “creditors on either fide, no lawful impediment to the recovery of the full value in fterling money, of all debts heretofore . contracted, ” exclude the idea of any clafs of cafes having been intended tobe excepted, and explode the doftxine of conftruc-tive diferimination. The fourth article appears to me to come, within the firft general maxim of interpretation laid down by Vattel. It is not permitted to interpret what has no need of “ interpretation. When an ait .is conceived in clear and pre-K cife terms, when the fenfe is manifeft, and leads to nothing “ abfurd, there can be no reafon to refufe the fenfe which this “ treaty naturally prefents. To goelfewhere in fearch of con- “ jeiftures, ⅛ order to reftrain or extinguifh it, is to endeavour “ to elude it. If this.dangerous method be Once admitted, “ there will be no a 36> 37> 38-Burl P-35^ port 4-c. 14. in f. 8. Fattel, b. 4, c. 4. f 54.

The gentlemen for the defendant, taking hold of fome particular exprelilions, without regarding the whole of thefe authorities, and confidering the reafon of them, have argued, that true, in the, prefent inftance (Tor example). Congrefs might have remitted the infradtion, but not having done fo, the Plaintiff is barred for the prefent, however he might be teftored to the right, in cafe the infraction fhould. hereafter be actually .remitted.

But to me it is very evident, that fuch a pofition is not maintainable, either by the authorities I have recited, or the reafon of the thing.

The words of Grótius are pointed and exprefs to fhew, not-that the treaty ihall.be reputed broken until a rcmijfion is a£iually pronounced by the injured party, but that itihall not be reputed as broken, until the injured party ihall think proper ao tually 'to proribunce it broken; and it is remarkable that his words to this effeffc, are calculated for the very purpofe of removing any dotibts which other more general expreffions might occafion. His words are: . .

“ When there is treachery on one fide, it. is certainly at the K choice of the innocent party to let thé peace fubfift; as Scipio “ did formerly after many perfidious actions of . the Carthage- “ nians. Becaufe ,no man, by doing contrary to his ebliga- “ tion, can thereby difcharge himfilf from ic. For though “ it is exprefied, that by fucb a fait the peace ihall be reputed “ as broken, yet this claufe is to he underjiood only in favour of Ci the innocent, if he thinks fit' to make ufe of it.”' Grotius.- . b. 3. r. ao. f 38.

The whole claufe of Fattel is fubftantially to the-fame pur-pofe; and, therefore, where in one part of the claufe he fays, “ the offended party may remit the infradiion committed,” this muft be understood, to make the whole confiftent, a remiffion not arifing from an exprefs declaration, but from a tacit ac-quiefcence in the breach. Ocherwife, what becomes of the words ?—“ but if he chufes not to come to a rupture, the “ treaty remains valid and obligatory;” The treaty, there-* fore, muft remain valid and obligatory, until the power, author ¡fed to come-to a rupture, does come to it.

The fame obfervations apply to Burlamaqui, who exprefles himfelf more generally, but ftates fubftantially the fame doctrine. His expreilion is, “it is at the choice of the innocent “ party to let the peace fubfift,” which certainly does not require a pofitive declaration that it ill all fubfift.

This doefrine appears to me to be grounded on the higheft reafon. It is undoubtedly tjue, that each nation is confidered as a moral perfon, and the w el fire and íñiereft of all the-individuals-of tht nation, fo far as they’may be aftedled by its concerns With foreign nations, are in each country entrufted to fome particular . power authorifed to negocíate with them,’ or to fpeak the fenfe of the nation on any emergency.

When any individual, -therefore, of any nation, has caufe of complaint againft 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 entrufted with the fovereignty of it as to foreign negociations, and he will be enitled to all the redrefs which the nature of. his cafe requires, and the fiutation of his own country will enable him to obtain,

The people of the United States, in their prefent Conftitution, have devolved on the Prefident and Senate, the power of' making treaties; and upon Congrefs, the power of declaring war. ,To one or other of thefe powers, in cafe of an infracliorf of a treaty that has been entered into with the UnitedrStates, I apprehend application is to be made, Upon fuch an application various'important confiderations would neceifarily occur. 1. Whether the treaty was firft violated on the part of the United States, or on that of the other contracting power ?

2. Whether, if firft violated by the latter, it was a violation in an important or an inco'nfiderable article; whether the violation was by defign or accident, or owing to unforefeen obfta-cles; whether, in ihort, it was wholly or partially without ex-cufe ?

3. Whether, admitting it' was either, it was a matter for which compenfation could be made, or otherwife ?

Whether the injury was of fuch a nature as to admit of negociation, or to require immediate fatisfaftion, peremptorily and without delay?

5. Whether, if the circumftances in all other cafes juftified it, it was advifeable, upon an extenfive view and wife eftimation o.f all the relative circumftances of the United States, t9 declare the treaty broken, and of courfe void-, for though the parly firft|breaking the treaty cannot make it abfolutely void, but it is only voidable at the election of the injured party, yet when that eledtion is made, by declaring the treaty Void, I conceive it is totally fo as to both parties, and that all rights enjoyed under the treaty are abfolutely annulled, as if no ftipulation had been rnade for them ?

Thefe are confiderations of policy, confiderations of extreme magnitude, and certainly entirely incompetent to the examination and decifion of a Court of Juftice.

Miferable and difgraceful indeed, would be the fituation of the citizens of the United States, if they were obliged to-comply with a treaty on their part, and had no means of redrefs for a non-compliance by the other contra&ing power. But tfiey have, and the law of nations points out the remedy. The remedy depends on the diferetion and fenfe of duty of theft own government.

This plea is therefore defective, fo far as concerns the breach of the treaty, rrot becauié this, court hath no cognizance of a breadh of treaty, but becaufe by'the law of nations, we have no authority upon any information or conceffions of any individuals, to confider or declare it broken; but our judgment rnuj be grounded on the folemn declaration of Gongrefs alone, (to whom, I conceive, the authority is entrufted) given for the verv purpofe of vacating the treaty on the principles I have ftated. The paper tranfmitted' by order of Congrefs, to the Executive of Virginia,-'on the fubjedl of a violation complained ,of on the part of the Britijh, certainly cannot amount to fo much, efpecially as there is another paper of theirs in the year ¾787, tranfmitted to the different States, complaining of violations on our part. They have pronounced no folemn decifion, which committed the firft infraftion; much lefs have they declared that in cónfequence of the infrañion¹ on the part of the Britijhy they chofe that the treaty ihould be annulled

But it is faid .that a declaration by Congrefs, that the treaty was broken by Great Britain, would be exercifing a judicial power, which by the Cqnftitution in all cafes of treaties is devolved on the Judges. "

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

The method contended for by the-defendaíH’s counfel is very ill fuited to another par.t of their dotftrine, which is certainly right, that a nation is a moral perfon, and that the a£t of afove-reign-power to whom its foreign concerns are entrufted, is the ait of every individual of that nation, becaufe he reprefents the whole.

But in this cafe, the King of Gr-eat Britain does not ait on behalf of the plaintiff, his fubjeit, and the United Staferon'be-half of the defendants, their citizens; but the plaintiff is alledged to reprefent the.fovereignty of the United States, a dignity for-aught I know, of which they may be refpeitively worthy,'but which certainly does not either politically or judicially belong to them.

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

The fubjedi of treaties, Gentlemen truly fay, is to be determined by the law of nations. •

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

If. Congrefs, therefore,, (who, I conceive, alone have fuch authority ^finder pur Government) ihall make fuch • a declaration, in any cafe like the.prefent, I ihall deem-it my. duty to regard the treaty as void, and then to forbear any ihare in-executing it as-a Judge.

But the fame law of nations tells me, that until that declaration be made,, I muft regard it (in the language of the lawj valid and obligatory.

The admiffion of the fadl, flared in the plea, cannot be, taken as an admiffion that the fa£i is JlriBly true, becaufe 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 admiffion of the entire truth, but not otherwife. For the reafons I have given, it is clear to me that it is not well pleaded. 2. In regard to the fecond branch of this plea, new ails op hoftility, if meant as conftitoting a breach, (which I don’t un-derftand it to be) the obfer'vationS I have already made will equally applv to this part of the plea. If meant as a proof, that a war in fail:, tho’ nothin name fubfifts, and therefore that the plaintiff is an alien enemy, the fame obfervations will apply ftill more forcibly We muft receive a declaration, that we are in a ftate of war, from ¿hat part of the fovereignty of the union to which that important fubjeft is entrufted. We certainly want feme better information of.tbe faft than we have at prefent.— However, this point feems fo clear, that the defendant’s counfel very faintly attempted to maintain this idea of the cafe.

I conclude, therefore, for thefe reafons, that there is nothing in the 4th plea which is a bar to the plaintiff’s aflion.

The great difficulty of the cafe arifes from the fecond plea.— This is the only part of the cafe, about which I have, from the beginning, entertained any doubt. And I muft confefs, I have had very great doubts, indeed, on this fubjefl. My opinion has varied more than once in regard to if. I have endeavoured to come to a cortclufion byanalyfing it in all its parts; and the jefult of my inveftigation has been, according to the beft judgment I am capable of forming, upon the moil deliberate examination, that the plea is fupportable. My reafons for this opinion, Í muft give at confiderable length, in order to ihew it is not a rafh one, and that Gentlemen may be enabled in the future progrefs of this cafe, more eafily to deleft my errors, i.f I ihould have committed any.

I will divide the corfideration of the. plea into two points :

1. Whether the plea would have been a bar if this cafe had . ftood independently of the treaty ?

2. Whether the treaty deftroys the operation of the plea?

• In confidering the firft point, ‡ fhall, for the greater perfpi-c:uity, coniider it under the following heads :

1. Whether the Legiflarure of this State had a right, agrea-ble to the law of nations, to confifcate the debt in queftion ?

2. Whether, admitting that the Legiflature had not a right, agreabiy to the law of nations, to confifcate the debt, 'yet if they in fail did fo, it would not, while it remained unrepealed by any fubfequent, Sufficient authority, have been valid and obligatory within the limits of the State, fo as to bar any fuit for the recovery .qf the debt ?•

3. Whether, if it fhall be confidered. that the Legiflature dj-cf not wholly confifcate the debt, foas totally to extinguifh all right in the creditor, (as I apprehend they clearly did not) but only fequefter it under the peculiar eircumftances ftated in the a'. demnify every one who ihould pay money under ic/purAai-it'to the invitation it held out. ... , ' ' .

Having never confifcated the dabt, the Siate.raúíly in"the nature and reafon of things, confider itfclfas ar.fwc&5b1-e'tOj-the' value. And this feems to-be the full fenfe of the vjegiilators . upon this Abject, in a fubfcqutnt aft of aAembiy but the treaty holds the original debtor anljverable Co his.creditor, .as Í underirand. tiie. matter. The State, therefore, muft-be r^fpon-’ lible to the debtor. Thefe confiderations will, incAeft, exclude, the idea, of the. power .of eminent domain; and if they did -not,- yet ⅛there was AiBcient authority to exetcile it, and the greattA occafion that perhaps could ever happen,'. The' fame coniideratidnswi.il alfo takeaway all ground of imputation upon public faith. ; ..

Again, the' treaty -regarded^.the' .exifting. fiate -of things, by removing the laws then cxifting, which intended 10 defeat the creditor of his ufual remedy at law.

As to the obferva'tions 'Upon the..recommendaioiT -próvifion of-the 5th article; I do not fee.that.wc can colleft the private opinion of the negcciators, refpeftrng their powers, -by 'whát they .did -not do: and if \ys could, this, court, is. not bound .by . their opinion, unlefs the reafons‘on which it was founded, being .known, were convincing. It would be hard upon them, to fuppofe they gave up all, that they might thmjc they Arjftly had a right to give up. W e may allow force what to ikili, policy and fidelity.

With refpeft to confutations of real and-perfonal dilates, which had been compleated, the eftates fold, and, perhaps, paiTcd through the hands of a number cfpurcbafors, ar.d improvements made Upon real eftates, by the then poíüítbrs; they knew, that to give them up abiblutely, rn.nt create much confufion in this country. Avoiding that;'(whether from an apprehenfion of want of power does not appear from the inftrument) they were lead only to agree, that Congrefs-ihould recommend a reftitution, or composition.

The 4th article, which is particularly and folely employed about debts,, makes provifion, according to the doCtrine then held fa'cred by all the fovereigns of Europe.

Although our negociators 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 fiihery, large boundaries, a fettled peace, .and abfolute independence, with their concomitant and confequent advantages: All which, it might not have been prudent for them to rifque, by obftinately infilling on fuch exemption, either in whole or in part, contrary to the humane apd meliorated policy of the civilized world, in this particular. The 5th article, it is conceived, can not affeft or alter the conltru&ion of the 4th article. For, firit, it is againft reafon, that a (pedal provifion madé refpedting debts by name, ihould' be taken away immediately after, in the next article, by general words, or words of'implication, which words too, have, other-wife, ample matter-to operate upon. ad. No implication'.from the 5th article,.- can touch the prefent cafe, becaufe that fpeaks only of aCtqái confifcations, and here was no confifcation. If we believe the Virginia legillators, they fay, “ We do not con- “ fifcate—we will not confifcate debts, unlefs Great Britain “•lets the example^1 which it is not pretended (he-ever did.

The provifion, that-,'14 Creditors jhall meet - with no lawful “ impediment,” &c. is as abfolute, unconditional, and-peremptory, as words can well exprefs, and made not to depend on the will and pleafure, or the optional condu£l of any body of men whatever. -

To eiFecl the objeCl intended, there is no want of proper and ftrong language; there is no want of power, the treaty being fan&ioned as the fupreme law, by the conllitution of the United States-, which nobqdy pretends to deny to be paramount and controlling to all ftate laws, and even Hate conftitutions, wherefoever they interfere or, difagree. , '

The treatyj then,- aS to the point in queftion, is of equal force p'with the-conllitution'itfelf;- and certainly, with, any law-what-fover. And the words, “ Jhall meet with no lawful impedi-mentfi &c. are as ftrong-as the wit of man coul'd deviie, to avoid all effects, of iequeilration, confifcation, or any other ob-ftacle thrown in the way, by any law, particularly pointed againft the recovery of fuch .debts.

I.am, therefore, of'opinion, that the judgment of-the.Circuit Court-ought to b¿ reverfed.' By the Court. All and fingular the premifes being feen by the court here and fully underftood, and mature deliberation had thereon, becaufe it appears to the court now here, that in the record and procefs aforefaid, and alfo in the rendition of the judgment aforefaid, upon the demurrer to the rejoinder of the Defendants in error, to the replication of the fecónd plea, it is manifeftly erred, it is confidered that the laid judgment .for thofe errors and others in the record and procefs aforefaid, be revoked and annulled, and altogether held for nought, and it is further confidered by the court here, that the Plaintiff in error recover againft the Defendants, two thoufand nine hundred and feventy-iix pounds, eleven ihillings and fix-pence, . good Britijh money, commonly called fterling money, his debt aforefaid, and his cofts by him about his fuit in this behalf expended, and the faid Defendants, in mercy, &c. But this judgment is to be, difeharged by the payment of the fum of 596 dollars, and intereft thereon to be computed after the rate of .five per cent per annum, from the 7th day of July, 1782, till payment, befides the cofts, and by the payment of fuch dama-, ges as ihall be awarded to the Plaintiff in error, on a writ of enquiry to be iffued by the Circuit Court of Virginia,-to af-certain the fum really due to the Plaintiff in error, exclufive-Jy of the faid fum of 596 dollars, which was found to be due to the Plaintiff ih'error, upon the trial in the faid Circuit Court, on the iffue joined upon the Defendant’s plea of payment, at a time when the judgment of the faid Circuit Court on the faid demurrer was unrev'erfed and in full force and vigor, and for the execution of the judgment of the courti the caufe aforefaid is remanded to the faid Circuit Court of Virginia.

Judgment 'reve'rfed. '

*

See the Ordinance of the ¿orh of November, t 7Sr. See, alfo, the Refs)!utio:i of the 23J of November, 1781, in which Congrefs recoin-» mended to the (bates, to pufs jaws to puniih inflations of the law cf nations.

*

See the oath in the aft of the 24th of September, J7Í9. 1. vol. p. 53. f. 8. S.vift’s edition.

*

7udge TREOELL, (oiie of: the Judges whq decided the origi~-~ iial caufC) in conformity to a pr~Uce which the Judges of this court Pave gene~aliy p~rthed, forbore taking any part in this decition, a~ a Jnd~e, "ponthe prefent wrtt of~rror. havine declared fr~n the uIrft he meant on1y to do Lo, in cafe of an. eq~aI divilioii of.opinion among the other Judges. But he obferved, that he thought there would be no im-~ proptiety in his readina in hi~ place the reàfon~ he had given in fuppor~ qt the judgment in the Circuit Court, a pra!tice exprefsly autho~rized inthe cafe of the Diftritft Judge~ upon an appe~d to the Circuit Court from hit own dècjfion tho' he is a~ the fame jinse &cluded from vot-iag. And Judge Iredril added~ that upon conmulting his brethren on the bei~ch, they.had acquicfced in the propriety of this proceeding. He therefore read thefe reafons in his place, fo far as th~'y reIpe~cd th~ 2~flC iiibje~t of.difcuffion in both courts, ~vhich was only as to the ct-±c~ of payments into the ticafury, every other point in contelt in th~ &~IrcuitConr~ having been relin~uifhed.

It is, however, thought proper on this occahon, to publith. the \v~1OIC of th&~ argun~ent as delivered in the Cli cult Cotsrt, there beii~g fome Ol)~ fervationson that part of the fulde& that was r~linquiIhed which, it i~ copcei~d, ferve to illuftrate ~he great topk ofcontroverfy that occaf~oned the ~refentwrit of error. - - - - -

The Judge, ~tterread~ngh~s.Opthidn, ãsdetlvered ~n t~e court ne1ow~ added, thati~th'~td not been chai~ged by any thins ~hich had .oc~ urred, i~I ~~the c~[e ou t¹~e prclentwrit ~i etror. *

Rui.! againit Btmkman, 3 Term Rep. 151. By-thrse Judges againft-one, in the (Jouvc of King’s Bench, in KnglunJ,

†

Chancellor H'ythc, of VhginU¹, who had given a contrary Opinion in . the High Court of Chancery of Virginia, a.few days before.

*

*

The book commonly called “ The OM™£aw 6f,Evidence ;.T originally printed in 1735, and afterwards in 1739 and 17-14*

†

Upon confulting the BiUioth-ca Isrguni, it appears that Chtytin't Rqs>n: were publilhed in 1651, fo that tjie decilion mud have been under th.e' commonwealth.