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Ware v. Hylton. 3 D. What has some force to confirm this construction, is the sense of all Europe, that such debts could not be touched by States without a breach of public faith. And for that, and other reasons, no doubt, this provision was insisted upon, in full latitude, by the British negotiators. If the sense of the article be as stated, it obviates at once all the ingenious, metaphysical reasoning and refinement upon the words debt, discharge, extinguishment, and affords an answer to the decision made in the time of the interregnum — that payment to sequestrators was payment to the creditor.

A State may make what rules it pleases; and those rules must necessarily have place within itself.

But here is a treaty, the supreme law, which overrules all State laws upon the subject, to all intents and purposes; and that makes the difference. Diverse objections are made to this construction. That it is an odious one, and as such ought to *be [ * 283 avoided. That treaties regard the existing state of things. That it would carry an imputation upon public faith. That it is founded on the power of eminent domain, which ought not to be exercised but upon the most urgent occasions. That the negotiators themselves did not think they had power to repeal laws of confiscation ; because they, by the fifth article, only agreed that congress should recommend a repeal to the States.

As to the rule respecting odious constructions, that takes place where the meaning is doubtful, not where it is clear, as I think it is in this case. But it can hardly be considered as an odious thing to enforce the payment of an honest debt, according to the true intent and meaning of the parties contracting, especially if, as in this case, the State having received the money, is bound in justice and honor to indemnify the debtor for what it in fact received. In whatever other lights this act of assembly may be reviewed, I consider it in one, as containing a strong implied engagement on the part of the State, to indemnify every one who should pay money under it, pursuant to the invitation it held out.

Having never confiscated the debt, the State must, in the nature and reason of things, consider itself as answerable to the value. And this seems to be the full sense of the legislators upon this subject, in a subsequent act of assembly; but the treaty holds the ori. ginal debtor answerable to his creditor, as I understand the matter. The State, therefore, must be responsible to the debtor.

These considerations will, in effect, exclude the idea of the power of eminent domain ; and if they did not, yet there was sufficient authority to exercise it, and the greatest occasion that perhaps could ever happen. The same considerations will also take away all ground of imputation upon public faith.

Ware v. Hylton. 3. D.

Again, the treaty regarded the existing state of things, by removing the laws then existing, which intended to defeat the creditor of his usual remedy at law.

As to the observations upon the recommendatory provision of the fifth article, I do not see that we can collect the private opinion of the negotiators, respecting their powers, by what they did not do; and if we could, this court is not bound by their opinion, unless the reasons on which it was founded, being known, were convincing. It would be hard upon them, to suppose they gave up all that they might think they strictly had a right to give up. We may allow somewhat to skill, policy, and fidelity.

With respect to confiscations of real and personal estates, which had been completed, the estates sold, and, perhaps, passed through the hands of a number of purchasers, and improvements made upon real estates, by the then possessors; they knew, that to give

them up absolutely, must create much confusion in this [ * 284 1 *country. Avoiding that, (whether from an apprehension

of want of power does not appear from the instrument,) they were led only to agree, that congress should recommend a restitution, or composition.

The fourth article, which is particularly and solely employed about debts, makes provision, according to the doctrine then held sacred by all the sovereigns of Europe.

Although our negotiators 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 fishery, large boundaries, a settled peace, and absolute independence, with their concomitant and consequent advantages. All which, it might not have been prudent for them to risk, by obstinately insisting on such exemption, either in whole or in part, contrary to the humane and meliorated policy of the civilized world, in this particular.

The fifth article, it is conceived, cannot affect or alter the construction of the fourth article. For, first, it is against reason, that a special provision made respecting debts by name, should be taken away immediately after, in the next article, by general words, or words of implication, which words too, have, otherwise, ample matter to operate upon. Second. No implication from the fifth article can touch the present case, because that speaks only of actual confiscations, and here was no confiscation. If we believe the Vir. ginia legislators, they say, “ We do not confiscate — we will not confiscate debts, unless Great Britain sets the example,” which it is not pretended she ever did.

The provision, that “creditors shall meet with no lawful impedi. Geyer r. Michel. 3 D. ment,” &c., is as absolute, unconditional, and peremptory, as words can well express, and made not to depend on the will and pleasure, or the optional conduct of any body of men whatever.

To effect the object intended, there is no want of proper and strong language; there is no want of power, the treaty being sanctioned a: the supreme law, by the constitution of the United States, which nobody pretends to deny to be paramount and controlling to all state laws, and even state constitutions, wheresoever they interfere or disagree.

The treaty, then, as to the point in question, is of equal force with the constitution itself; and certainly with any law whatsoever. And the words, “ shall meet with no lawful impediment,” &c., are as strong as the wit of man could devise, to avoid all effects of sequestration, confiscation, or any other obstacle thrown in the way, by any law particularly pointed against the recovery of such debts.

I am, therefore, of opinion, that the judgment of the circuit court ought to be reversed.

Judgment reversed. 3 D. 425, 8 C. 110; 14 P. 353.

GEYER et al. v. MICHEL et al. and the Ship DEN ONZEKEREN.

3 D. 285.

This was a writ of error to the circuit court for the district of South Carolina, in an admiraļty cause. The court having ordered the decree of the circuit court to be affirmed without assigning any reasons, and the case having turned on a question of fact, a detail of the evidence is omitted. The decision appears to have been made upon the ground stated in Moodie v. The Ship Phæbe Anne, 3. D. 319.


The United States v. La Vengeance. 3 D.

[ * 297]



3 D. 297.

An information in the district court to enforce the forfeiture of a vessel for exporting arms

and ammunition contrary to the act of May 22, 1794, (1 U. S. Stat. at Large, 369,) is a civil cause of admiralty and maritime jurisdiction, and not to be tried by a jury.

Error to the circuit court for the district of New York. The district attorney filed an ex officio information in the district court against the French privateer La Vengeance, alleging that certain arms and ammunition were exported in that schooner, contrary to the act of May 22, 1794, (1 U. S. Stat. at Large, 369.) The owner of the schooner filed a claim and answer, denying the exportation of arms, and as to the gunpowder, alleging it to have been part of the supplies of the Semillante, a frigate belonging to the republic of France, and to have been taken from the frigate, and put on board the schooner, by order of the proper officer of the republic.

The district judge decreed a forfeiture, but on appeal this decree was reversed by the circuit court, sitting without a jury.

The only questions made by the attorney-general on this writ of error were, whether this was a civil cause, and a cause of admiralty

and maritime jurisdiction. 1 * 301 ] * The chief justice informed the opposite counsel, (Du

Ponceau,) that as the court did not feel any reason to change the opinion, which they had formed upon opening the cause, they would dispense with any further argument; and on the 11th of August, he pronounced the following judgment.

BY THE COURT. We are perfectly satisfied upon the two points that have been agitated in this cause. In the first place, we think, that it is a cause of admiralty and maritime jurisdiction. The exportation of arms and ammunition is, simply, the offence; and exportation is entirely a water transaction. It appears, indeed, on the face of the libel, to have commenced at Sandy Hook; which, certainly, must have been upon the water. In the next place, we are unanimously of opinion, that it is a civil cause: it is a process of the nature of a libel in rem; and does not, in any degree, touch the person of the offender.

In this view of the subject, it follows, of course, that no jury was necessary, as it was a civil cause; and that the appeal to the circuit

Cotton v. Wallace. 3 D.

court was regular, as it was a cause of admiralty and maritime jurisdiction. Therefore,

Let the decree of the circuit court be affirmed, with costs.

But on opening the court the next day, the chief justice directed the words “with costs” to be struck out of the entry, as there appeared to have been some cause for the prosecution. He observed, however, that in doing this, the court did not mean to be understood, as at all deciding the question, whether, in any case, they could award costs against the United States; but left it entirely open for future discussion. 2 C. 406, 443; 7 C. 112; 1 W.9; 8 W. 391; 9 W. 421; 7 P. 324; 5 H. 441; 6 H. 344.

*Cotton, Plaintiff in Error, v. WALLACE.


3 D. 302.

When a judgment or decree is affirmed on a writ of error, there can be no allowance of

damages, except for delay. Eight per cent. per annum allowed.

Error to the circuit court for the district of Georgia. The decree of the circuit court in favor of the libellant having been affirmed, a question arose concerning a claim for damages on affirmance. It appeared, that the libel prayed for restitution of the brig Everton and her cargo, “and all the damages and costs that have arisen by occasion of the premises.” The brig and cargo had been sold. Restitution was decreed by the circuit court, but no decree for damages was made either by the district or circuit court.

After the decree of the circuit court had been affirmed, the libellant applied to that court to have damages assessed. The judges differed as to the propriety of so doing, and thereupon Reed, for the libellants, applied to this court, and offered evidence of the amount of the damages.

PATERSON, J. Do you mean to go out of the record to prove your damages; or is your estimate of damages founded upon what appears on the record itself?

Reed. The record does not show the extent of our damages, though the decree will entitle us to recover the full amount. We

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