Ware v. Hylton. 3 D. ral States." In every free country, the power of laying taxes is considered a legislative power over the property and persons of the citizens; and this power the people of the United States granted to their State legislatures, and they neither could, nor did transfer it to congress; but on the contrary they expressly stipulated that it should remain with them. It is an incontrovertible fact that congress never attempted to confiscate any kind of British [233] 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 law, and the payment under it. The preamble recites, that the public faith, and the law and the usage of nations require, that debts incurred, during the 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 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. Ware v. Hylton. 3 D. the intention of the legislature, it must prevail, on the principle that the legislature changed their intention. I am of opinion, that the law of the 20th of October, 1777, and the payment in virtue thereof, amounts either to a confiscation or extinguishment, of so much of the debt as was paid into the loan office of Virginia. 1st. The law makes it lawful for a citizen of Virginia indebted to a subject of Great Britain * to pay the [* 234 ] whole, or any part, of his debt, into the loan office of that commonwealth. 2d. It directs the debtor to take a certificate of his payment, and to deliver it to the governor and the council; and it declares that the receipt of the governor and the council for the certificate shall discharge him, the debtor, from so much of the debt as he paid into the loan office. 3d. It enacts that the certificate shall be subjected to the future direction of the legislature. And, 4thly, it provides, that the governor and council may make such allowance, as they shall think reasonable, out of the interest of the money paid, to the wives and children, residing within the State, of such creditor. The payment by the debtor into the loan office is made a lawful act, The public receive the money, and they discharge the debtor, and they make the certificate, which is the evidence of the payment, subject to their direction; and they benevolently appropriate part of the money paid, to wit, the interest of the debt, to such of the family of the creditor as may live within the State. All these acts are plainly a legislative interposition between the creditor and debtor; annihilates the right of the creditor, and is an exercise of the right of ownership over the money; for the giving part to the family of the creditor, under the restriction of being residents of the State, or to a stranger, can make no difference. The government of Virginia had precisely the same right to dispose of the whole, as of part of the debt. Whether all these acts amount to a confiscation of the debt, or not, may be disputed according to the different ideas entertained of the proper meaning of the word confiscation. I am inclined to think that all these acts, collectively considered, are substantially a confiscation of the debt. The verb confiscate is derived from the Latin, con, with, and fiscus, a basket, or hamper, in which the emperor's treasure was formerly kept. The meaning of the word to confiscate is to transfer property from private to public use; or to forfeit property to the prince, or state. In the language of Mr. Lee, (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 Ware v. Hylton. 3 D. 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 [* 235 ] into the loan office. Such a construction, therefore, is too violent and not to be admitted. If Virginia had confiscated British debts, and received the debt in question, and said nothing more, the debtor would have been discharged by the operation of the law. In the present case, there is an express discharge on payment, certificate, and receipt. It appears to me that the plea, by the defendant, of the act of assembly, and the payment agreeably to its provisions, which is admitted, is a bar to the plaintiff's action, for so much of his debt as he paid into the loan office, unless the plea is avoided, or destroyed by the plaintiff's replication of the fourth article of the definitive treaty of peace, between Great Britain and the United States on the 3d of September, 1783. The question then may be stated thus: Whether the 4th article of the said treaty nullifies the law of Virginia, passed on the 20th of October, 1777; destroys the payment made under it, and revives the debt and gives a right of recovery thereof against the original debtor? It was doubted by one of the counsel for the defendants in error (Mr. Marshall) whether congress had a power to make a treaty that could operate to annul a legislative act of any of the States, and to destroy rights acquired by, or vested in individuals in virtue of such acts. Another of the defendant's counsel, (Mr. Campbell) expressly, and with great zeal, denied that congress possessed such power. But a few remarks will be necessary to show the inadmissibility of this objection to the power of congress. 1st. The legislatures of all the States have often exercised the power of taking the property of its citizens for the use of the public, but they uniformly compensated the proprietors. The principle to maintain this right is for the public good, and to that the interest of individuals must yield. The instances are many; and among them are lands taken for forts, magazines, or arsenals, or for public roads, or canals, or to erect towns. 2d. The legislatures of all the States have often exercised the power of devesting 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 pa Ware v. Hylton. 3 D. per 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 power of making 236] such treaty. If Virginia had such power before she delegated it to congress, it follows that afterwards that body possessed it. Whether Virginia parted with the power of making treaties of peace, will be seen by a perusal of the ninth article of the confederation (ratified by all the States on 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 sixth article, and of entering into treaties and alliances, with a proviso, when made, respecting commerce." This grant has no restriction, nor is there any limitation on the power in any part of the confederation. A right to make peace necessarily includes the power of determining on what terms peace shall be made. A power to make treaties must of necessity imply a power to decide the terms on which they shall be made. A war between two nations can only be concluded by treaty. Surely the sacrificing public or private property to obtain peace cannot be the cases in which a treaty would be void. Vatt. lib. 2, c. 12, s. 160, 161, p. 173; lib. 6, c. 2, s. 2. It seems to me that treaties made by congress, according to the confederation, were superior to the laws of the States, because the confederation made them obligatory on all the States. They were so declared by congress on the 13th of April, 1787; were so admitted by the legislatures and executives of most of the States; and were so decided by the judi ciary of the general government, and by the judiciaries of some of the state governments. If doubts could exist before the establishment of the present national government, they must be entirely removed by the sixth article of the constitution, which provides "that all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing 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 Ware v. Hylton. 3 D. state constitutions were made, and by their authority the constitution of the United States was established; and they had the power to change or abolish the state constitutions, or to make them yield to the general government, and to treaties made by their authority. A treaty cannot be the supreme law of the land, that is, of all the United States, if any act of a state legislature can stand in its way. If the constitution of a State (which is the fundamental law of the State, and paramount to its legislature) must give way to a treaty, and fall before it, can it be questioned whether the less power, an act of the state legislature must not be pros- [* 237 ] trate? It is the declared will of the people of the United States that every treaty made by the authority of the United States, shall be superior to the constitution and laws of any individual State, and their will alone is to decide. If a law of a State, contrary to a treaty, is not void, but voidable only by a repeal, or nullification by a state legislature, this certain consequence follows, that the will of a small part of the United States may control or defeat the will of the whole. The people of America have been pleased to declare that all treaties made before the establishment of the national constitution, or laws of any of the States, contrary to a treaty, shall be disregarded. Four things are apparent on a view of this 6th article of the national constitution. 1st. That it is retrospective, and is to be considered in the same light as if the constitution had been established before the making of the treaty of 1783. 2d. That the constitution, or laws, of any of the States, so far as either of them shall be found contrary to that treaty, are, by force of the said article, prostrated before the treaty. 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. 4th. That it is the declared duty of the state judges to determine any constitution, or laws of any State, contrary to that treaty, or any other, made under the authority of the United States, null and void. National or federal judges are bound by duty and oath to the same conduct.1 The argument, that congress 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 destroy vested rights, which the plaintiff's counsel contended to be the object and effect of the 4th article, was unnecessary, but on the supposition that this court pos 1 See the oath in the act of the 24th of September, 1789, vol. 1, p. 53, s. 8, Swift's edition, 1 U. S. Stat. at Large, 76. 16 VOL. I. |