Ware v. Hylton. 3 D. ten States, in 1778, was only finally completed and ratified on the 1st of March, 1781. I am of opinion that the exclusive right of confiscating, during the war, all and every species of British property, within the territorial limits of Virginia, resided only in the legislature of that commonwealth. I shall hereafter consider whether the law of the 20th of October, 1777, operated to confiscate or extinguish * British debts, contracted before the war. It is worthy of [* 223] remembrance, that delegates and representatives were elect ed by the people of the several counties and corporations of Virginia, to meet in general convention, for the purpose of framing a new government, by the authority of the people only; and that the said convention met on the 6th of May, and continued in session until the 5th of July 1776, and in virtue of their delegated power, established a constitution, or form of government, to regulate and determine by whom and in what manner the authority of the people of Virginia was thereafter to be executed. As the people of that country were the genuine source and fountain of all power that could be rightfully exercised within its limits; they had therefore an unquestionable right to grant it to whom they pleased, and under what restrictions or limitations they thought proper. The people of Virginia, by their constitution or fundamental law, granted and delegated all their supreme civil power to a legislature, an executive, and a judiciary; the first to make, the second to execute, and the last to declare or expound the laws of the commonwealth. This abolition of the old government, and this establishment of a new one, was the highest act of power that any people can exercise. From the moment the people of Virginia exercised this power, all dependence on, and connection with Great Britain absolutely and forever ceased; and no formal declaration of independence was necessary, although a decent respect for the opinions of mankind required a declaration of the causes which impelled the separation; and was proper to give notice of the event to the nations of Europe. I hold it as unquestionable, that the legislature of Virginia established, as I have stated, by the authority of the people, was for ever thereafter invested with the supreme and sovereign power of the State, and with authority to make any laws in their discretion, to affect the lives, liberties, and property of all the citizens of that commonweath, with this exception only, that such laws should not be repugnant to the constitution, or fundamental law, which could be subject only to the control of the body of the nation, in cases not to be defined, and which will always provide for themselves. The legislative power of every nation can only be restrained by its own constitution; and it is the Ware v. Hylton. 3 D. * duty of its courts of justice not to question the validity of any law made in pursuance of the constitution. There is no question but the act of the Virginia legislature, of the 20th of October, 1777, was within the authority granted to them by the people of that country, and this being admitted, it is a necessary result, that the law is obligatory on the courts of Virginia, and in my opinion, on the courts of the United States. If Virginia as a sovereign State, vio[* 224 ] lated the ancient or modern law of nations, in making the law of the 20th of October, 1777, she was answerable in her political capacity to the British nation, whose subjects have been injured in consequence of that law. Suppose a general right to confiscate British property is admitted to be in congress, and congress had confiscated all British property within the United States, including private debts, would it be permitted to contend in any court of the United States that congress had no power to confiscate such debts, by the modern law of nations? If the right is conceded to be in congress, it necessarily follows that she is the judge of the exercise of the right, as to the extent, mode, and manner. reasoning is strictly applicable to Virginia, if considered a sovereign nation; provided she had not delegated such power to congress, before the making of the law of October, 1777, which I will hereafter consider. The same In June, 1776, the convention of Virginia formally declared that Virginia was a free, sovereign, and independent State; and on the 4th of July, 1776, following, the United States, in congress assembled, declared the thirteen united colonies free and independent States; and that as such, they had full power to levy war, conclude peace, &c. I consider this as a declaration, not that the United Colonies jointly, in a collective capacity, were independent States, &c., but that each of them was a sovereign and independent State, that is, each or them had a right to govern itself by its own authority and its own laws, without any control from any other power upon earth. Before these solemn acts of separation from the crown of Great Britain, the war between Great Britain and the United Colonies jointly and separately, was a civil war; but instantly, on that great and ever memorable event, the war changed its nature, and became a public war between independent governments; and immediately thereupon all the rights of public war, and all the other rights of an independent nation, attached to the government of Virginia; and all the former political connection between Great Britain and Virginia, and also between their respective subjects, were totally dissolved; and not only the two nations, but all the subjects of each, were in a Ware v. Hylton. 3 D. state of war, precisely as in the present war between Great Britain and France. Vatt. lib. 3, c. 18, s. 292 to 295; lib. 3, c. 5, s. 70, 72, and 73. From the 4th of July, 1776, the American States were de facto, as well as de jure, in the possession and actual exercise of all the rights of independent governments. On the 6th of February, 1778, the king of France entered into a treaty of alliance with the United States; and on the 8th of October, 1782, a treaty of amity and commerce was concluded between the United States and the States General of the United Provinces. I have ever con- [* 225] sidered it as the established doctrine of the United States, that their independence originated from, and commenced with the declarations of congress, on the 4th of July, 1776; and that no other period can be fixed on for its commencement; and that all laws made by the legislatures of the several States, after the declaration of independence, were the laws of sovereign and independent governments. That Virginia was part of the dismembered British empire, can, in my judgment, make no difference in the case. No such distinction is taken by Vattel, (or any other writer) but Vattel, when considering the rights of war between two parties absolutely independent, and no longer acknowledging a common superior, (precisely the case in question,) thus expresses himself, lib. 3, c. 18, s. 295: "In such case the State is dissolved, and the war between the two parties, in every respect, is the same with that of a public war between two different nations." And Vattel denies that subjects can acquire property in things taken during a civil war. That the creditor and debtor were members of the same empire when the debt was contracted, cannot, in my opinion, distinguish the case, for the same reasons. A most arbitrary claim was made by the parliament of Great Britain to make laws to bind the people of America in all cases whatsoever, and the king of Great Britain, with the approbation of parliament, employed not only the national forces, but hired foreign mercenaries to compel submission to this absurd claim of omnipotent power. The resistance against this claim was just, and independence became necessary; and the people of the United States announced to the people of Great Britain, "that they would hold them, as the rest of mankind, enemies in war; in peace, friends." On the declaration of independence, it was in the option of any subject of Great Britain, to join their brethren in America, or to remain subjects of Great Britain. Those who joined us were entitled to all the benefits of our freedom and independence; but those who elected to continue subjects of Great Britain, exposed Ware v. Hylton. 3 D. themselves to any loss that might arise therefrom. By their adhering to the enemies of the United States, they voluntarily became parties to the injustice and oppression of the British government; and they also contributed to carry on the war, and to enslave their former fellow-citizens. As members of the British government, from their own choice, they became personably answerable for the conduct of that government, of which they remained a part; and their property, wherever found, on land or water, became liable to confiscation. On this ground, congress on the 24th of July, 1776, confiscated any British property taken on the seas. See 2 Ruth. * 226 ] Inst. lib. 2, c. 9, s. 13, p. 531, 559; Vatt. * lib. 2, c. 7, s. 81, and c. 18, s. 344; lib. 3, c. 5, s. 74, and c. 9, s. 161, and 193. The British creditor, by the conduct of his sovereign, became an enemy to the commonwealth of Virginia; and thereby his debt was forfeitable to that government, as a compensation for the damages of an unjust war. [*226 It appears to me that every nation at war with another is justifiable, by the general and strict law of nations, to seize and confiscate all movable property of its enemy, (of any kind or nature whatsoever) wherever found, whether within its territory, or not. Bynkershoek Q. I. P. de rebus bellicis, lib. 1, c. 7, p. 57, thus delivers his opinion: "Cum ea sit belli conditio ut hostes sint, omni jure, spoliati proscriptique, rationis est, quascunque res hostium, apud hostes inventas, Dominum mutare, et Fisco cedere." "Since it is a condition of war that enemies, by every right, may be plundered and seized upon, it is reasonable that whatever effects of the enemy are found with us who are his enemy, should change their master and be confiscated, or go into the treasury." S. P. Lee on Capt. c. 8, p. 111; S. P. 2 Burl. p. 209, s. 12; p. 219, s. 2; p. 221, s. 11. Bynkershoek, the same book and chapter, page 57, thus expresses himself: "Quod dixi de actionibus recte publicandis ita demum obtinet. Si quod subditi nostri hostibus nostris debent, princeps a subditis suis, revera exegerit. Si exegerit recte solutum est, si non exegerit, pace facta, reviviscit jus pristinum creditoris; quia occupatio, quæ bello fit, magis in facto, quam in potestate juris consistit. Nomina igitur, non exacta, tempore belli quodammodo intermori videntur, sed per pacem, genere quodam postliminii, ad priorem dominum reverti. Secundum hæc inter gentes fere convenit ut nominibus bello publicatis, pace deinde facta, exacta censeantur periisse, et maneant extincta; non autem exacta reviviscant, et restituantur veris creditoribus." "What I have said of things in action being rightfully confiscated, holds thus: If the prince truly exacts from his subjects what they owed to the enemy; if he shall have exacted it, it is rightfully paid; Ware v. Hylton. 3 D. if he shall not have exacted it, peace being made, the former right of the creditor revives; because the seizure, which is made during war, consists more in fact than in right. Debts, therefore, not exacted, seem as it were to be forgotten in time of war, but upon peace, by a kind of postliminy, return to their former proprietor. Accordingly, it is for the most part agreed among nations, that things in action, being confiscated in war, the peace being made, those which were paid are deemed to have perished, and remain extinct; but those not paid revive, and are restored to their true creditors. Vatt. lib. 4, s. 22; S. P. Lee on Capt. c. 8, p. 118." That this is the law of nations, as held in Great Britain, [* 227 ] appears from Sir Thomas Parker's Rep. p. 267, (11 William 3,) in which it was determined that choses in action belonging to an alien enemy are forfeitable to the crown of Great Britain; but there must be a commission and inquisition to entitle the crown; and if peace is concluded before inquisition taken, it discharges the cause of forfeiture. The right to confiscate the property of enemies during war, is derived from a state of war, and is called the rights of war. This right originates from self-preservation, and is adopted as one of the means to weaken an enemy, and to strengthen ourselves. Justice, also, is another pillar on which it may rest; to wit, a right to reimburse the expense of an unjust war. Vatt. lib. 3, c. 8, s. 138, and c. 9, s. 161. But it is said, if Virginia had a right to confiscate British property, yet by the modern law, and practice of European nations, she was not justified in confiscating debts due from her citizens to subjects of Great Britain; that is, private debts. Vattel is the only author relied on, or that can be found to maintain the distinction between confiscating private debts, and other property of an enemy. He admits the right to confiscate such debts, if the term of payment happen in the time of war; but this limitation on the right is nowhere else to be found. His opinion alone will not be sufficient to restrict the right to that case only. It does not appear in the present case, whether the time of payment happened before, or during the war. If this restriction is just, the plaintiff ought to have shown the fact. Vattel adds, "At present, in regard to the advantages and safety of commerce, all the sovereigns of Europe have departed from this rigor; and this custom has been generally received, and he who should act contrary to it (the custom) would injure the public faith." From these expressions it may be fairly inferred, that, by the rigor of the law of nations, private debts to enemies might be confiscated, as well as any other of their property; but that a general custom had prevailed in Europe to the contrary, founded on commercial reasons. |