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Ware v. Hylton. 3 D.

will of lands to be executed in the presence of two witnesses, and a
will is actually executed in that manner, and the statute is afterwards
repealed, and three witnesses are made necessary, the will executed
in the presence of two others when the former statute was in being,
would be undoubtedly good; and if I am not mistaken, a will made
according to a law in being has been held good, even though the
devisor died after an alteration of it. Of this, however, I am not sure;
but the general position, I imagine, will not be questioned.
*Let us now see the words of the treaty. They are
these:

[* 278 ]

"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."

The meaning of this provision may perhaps be better considered by an analyzation of its parts, so far as they concern the question before us.

1. Creditors. There can be no creditor without two correlatives, a debtor and a debt.

Prima facie, therefore, if a debtor has been discharged, he is not the person whom any other person can sue as a creditor. This probably may be fairly applied to the present defendant, who as a debtor was discharged by legal authority.

With regard to the debt, that in the present instance was not extinguished even by the act of the State, because the right of the creditor to the money was not taken away.

The

The debt, therefore, remains, but not from the same debtor. State may be considered as substituting itself in some measure in the place of the debtor. The full effect of that substitution I am not now to consider, nor would it be proper for me at present to give an opinion upon it. The question is not, whether the creditor is entitled to his money, or in what manner, but whether he is entitled to recover it against the present defendant.

2. No lawful impediment.

These words must be construed as relative to the former, for the whole clause must be taken together. Therefore, where there are a creditor and debtor, there is to be no lawful impediment to the former recovering against the latter.

If the present defendant be not a debtor to the plaintiff, how can the treaty operate as against him?

The words "lawful impediment," may admit of two senses.

One, "Any lawful impediment whatsoever arising from any act done to the prejudice of a creditor's right during the war." I add that restriction, "during the war," because the rules of construction as to

Ware v. Hylton. 3 D.

treaties, must narrow the words as to the object, the war, the affairs of which the treaty of peace was intended to operate upon.

Or, “Any impediment arising from any law then in being, or thereafter to be passed, to the prejudice of a creditor's right."

The latter I think, is not an unnatural construction, and would give the words great operation, and I think is to be preferred to the former, for the following reasons:

1. This would stipulate for what each legislature of the Union would rightfully and honestly do, relinquish public claims

* to debts existing before the war, and which otherwise might [* 279 ] have stood upon a precarious footing; for though peace alone would do away a common law disability to sue, yet I apprehend it would not ipso facto remove a disability expressly created by statute, much less extinguish any public right acquired under any act of confiscation.

2. Though congress possibly might, as the price of peace, have been authorized to give up even rights fully acquired by private persons during the war, more especially if derived from the laws of war only against the enemy, and in that case the individual might have been entitled to compensation from the public, for whose interests his own rights were sacrificed; yet, nothing but the most rigorous necessity could justify such a sacrifice; such a sacrifice is not to be presumed even to have been intended under the operation of general words, not making such a construction unavoidable. For, it is reasonable to infer, that in such a case, special words would have been used to obviate the least colorable doubt.

Thus, for example, if it was stipulated in a treaty of peace between two European powers, "that all ships taken during the war should be restored," I imagine this would not be construed to include ships taken by privateers, and legally condemned during the war, unless it had, in fact, happened that no other ships had been taken, and then I suppose they would be understood as comprehended, and their own nation must have indemnified them.

3. If, according to the practice in Great Britain, in conformity to the law of nations, and upon the principles of a mixed government, in case any impediments had then existed, by acts of parliament in Great Britain, to the recovery of American debts, such impediments could only have been removed by a repeal, we may presume the British negotiator had reason to conclude, that the lawful impediments in this country could only be removed in the same manner; and if so, may we not fairly say, that the impediments in view could be no other than such as the legislatures in the respective countries could do away by a repeal, or might by subsequent laws enact? If they

Ware v. Hylton. 3 D.

wanted a further act of legislation, grounded not merely on ordinary legislative authority, but upon power to destroy private rights acquired under legislative faith, long since pledged and relied on, very special words were proper to effect that object, and neither in one country nor the other could it have been effected with the least color of justice, but by providing at the same time the fullest means of indemnification.

4. This construction derives great weight from the recommendatory letter of congress, I before mentioned; for I will venture to [*280] say, had the act they recommended been passed in the State, in the very words they recommended, they would not have had efficacy enough to destroy those payments as a bar. And yet, if congress thought such a case ought to have been comprehended, I presume they would have recommended a special provision, clearly comprehending such cases, and accompanied with a full indemnity.

I said the words of the treaty would have great operation, without giving them the very rigorous one contended for. And that will more fully appear when we take up the remaining words, namely:

3. "To the recovery of the full value in sterling money of all bonâ fide debts heretofore contracted."

The operation, exclusive of these payments, would therefore be this:

1st. All creditors whose debts had not been confiscated, or where the confiscations were not complete, and no payments had been made, would have a right of recovering their debts.

2d. Perhaps all creditors, whether their debts were confiscated or not, or whether confiscations were complete or not, excepting those only from whom the government had received the money, would be entitled to recover, because undoubtedly the respective legislatures were competent to restore all these.

3d. Another object of no small importance, was to secure the payment of all these debts in sterling money, so that the creditors might not suffer by paper currency, either then in existence, or that might be thereafter emitted.

When these general words, therefore, can comprehend so many cases, all reasonable objects of the article, I cannot think I am compelled as a judge, and therefore I ought not to do so, to say that the general words of this article shall extinguish private as well as public rights.

I hold public faith so sacred, when once pledged either to citizens or to foreigners, that a violation of that faith is never to be inferred as even in contemplation, but when it is impossible to give any other

Ware v. Hylton. 3 D.

reasonable construction to a public act. I do not clearly see that it was intended in the present instance. I cannot therefore bring myself to say, that the present defendant having once lawfully paid the money, shall pay it over again. If the matter be only doubtful, I think the doubt should incline in favor of an innocent individual, and not against him. I should hope that the present plaintiff will still receive his money, as his right to the money certainly has not been devested, but I think for all the reasons I have given, he is not enti tled to recover it from the present defendant.

My opinion, therefore, on the whole of this case is, that judgment ought to be given for the defendant upon the second plea; upon the third, fourth, and fifth for the plaintiff.

WILSON, J. I shall be concise in delivering my opinion, [281] as it depends on a few plain principles.

If Virginia had a power to pass the law of October, 1777, she must be equally empowered to pass a similiar law in any future war; for, the powers of congress were, in fact, abridged by the articles of confederation; and in relation to the present constitution, she still retains her sovereignty and independence as a State, except in the instances of express delegation to the federal government.

There are two points involved in the discussion of this power of confiscation. The first arising from the rule prescribed by the law of nations; and the second arising from the construction of the treaty of peace.

When the United States declared their independence, they were bound to receive the law of nations in its modern state of purity and refinement. By every nation, whatever is its form of government, the confiscation of debts has long been considered disreputable; and, we know, that not a single confiscation of that kind stained the code of any of the European powers, who were engaged in the war which our revolution produced. Nor did any authority for the confiscation of debts proceed from congress, that body which clearly possessed the right of confiscation, as an incident of the powers of war and peace, and, therefore, in no instance can the act of confiscation be considered as an act of the nation.

But even if Virginia had the power to confiscate, the treaty annuls the confiscation. The fourth article is well expressed to meet the very case; it is not confined to debts existing at the time of making the treaty; but is extended to debts heretofore contracted. It is impossible by any glossary or argument, to make the words more perspicuous, more conclusive, than by a bare recital. Independent, therefore, of the constitution of the United States, which authori

Ware v. Hylton. 3 D.

tatively inculcates the obligation of contracts, the treaty is sufficient to remove every impediment founded on the law of Virginia. The State made the law; the State was a party to the making of the treaty; a law does nothing more than express the will of a nation; and a treaty does the same.

Under this general view of the subject, I think the judgment of the circuit court ought to be reversed.

CUSHING, J. My state of this case will, agreeably to my view of it, be short. I shall not question the right of a State to confiscate debts. Here is an act of the assembly of Virginia, passed in 1777, respecting debts; which contemplating to prevent the enemy deriving strength by the receipt of them during the war, provides, that if any British debtor will pay his debt into the loan office, obtain [282] a certificate and receipt as directed, he shall be discharged from so much of the debt. But an intent is expressed in the act not to confiscate, unless Great Britain should set the example. This act, it is said, works a discharge and a bar to the payer. If such payment is to be considered as a discharge, or a bar, so long as the act had force, the question occurs:- Was there a power, by the treaty, supposing it contained proper words, entirely to remove this law, and this bar, out of the creditor's way?

This power seems not to have been contended against by the defendant's counsel. And, indeed, it cannot be denied; the treaty having been sanctioned, in all its parts, by the constitution of the United States, as the supreme law of the land.

Then arises the great question, upon the import of the fourth article of the treaty. And to me, the plain and obvious meaning of it goes to nullify, ab initio, all laws, or the impediments of any law, as far as they might have been designed to impair, or impede, the creditor's right, or remedy, against his original debtor. "Creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money, of all bonâ fide debts heretofore contracted."

The article speaking of creditors, and bonâ fide debts heretofore contracted, plainly contemplates debts, as originally contracted, and creditors and original debtors; removing out of the way all legal impediments; so that a recovery might be had, as if no such laws had particularly interposed. The words, "recovery of the full value in sterling money," if they have force or meaning, must annihilate all tender laws making any thing a tender but sterling money; and the other words, or at least the whole taken together, must, in like manner, remove all other impediments of law, aimed at the recovery of those debts.

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