Dulany v. Wells

²³ There were a number of other cases in which similar statements of facts were drawn up for the court’s opinion thereon at this term. The Court decided, that the payments made into the treasury were not valid, and gave judgment for the whole of the plaintiff’s claim, except the interest during the war; that is, from the 4th of July, 1776, to the 3d of September, 1783. The defendants appealed to the court of appeals. ²⁴ The law of nature is the only immutable law. It is implanted in the heart, and ought to govern the actions of all mankind.

It is equally obligatory on states as upon private individuals; and a nation in its political capacity, as well as a private individual, can do nothing legally that is contrary to the law of nature. Ruth. b. 2. p. 6. s. 10, 11. Vattel, Prel. Discourse, s. 8, 9.

A person born in a state of society and government,contracts an obligation for the preservation of that government, in his earliest infancy, and before he is capable of making any other engagement whatever. Every person, therefore, knows, who enters into a contract with the subject of a foreign state, that the private engagements of the person who contracts with him, must yield to the prior and superior obligations he owes to the state, whenever its safety or preservation may require it. Self-preservation is the first law of nature. If I contract with a citizen of France, I know that he is under a prior obligation to his country that prohibits his making any engagement that shall endanger its safety.

I know that upon a war being entered into between this country and France, if their • safety required it, they might confiscate my debt, and apply the money to their own defence. But though such contracts may .be made- to yield to the ²⁵ safety of the state, consistent with the law of nature, which declares self-preservation to be its first rule in the ease of a state as well as of an individual, in a case of extreme necessity, yet Vattel says, it is not now practised. In Europe, and any state who should do it, will be guilty of a breach of the law of nations, as now practised, as upon the faith of that custom many of these contracts are created. Vat. b. 3. c. 5. s. 77.

Grotius, 700. Jenk. 201. 2 Bynk. 177. But if I contract with one of our own citizens, bound by the samé obligations and the same laws, if he chooses to separate from this government hereafter, how can he acquire a right, or give it to others, to dissolve or annul this contract without my consent. If two persons in a state of nature should enter into engagements with each other, before they had contracted any prior engagements with society, such private contract would be so far an alienation of their natural rights, that neither of them, without the consent of the other, could dissolve that contract, or by entering into, and becoming a member of, a society afterwards tobe formed, or then existing, could give that society a subsequent right to do it, 1 Ruth. c. 12. s. 9. 2 Ruth. c. 7. s. 12. c. 2. s. 4.

Vat. Prel. s. 11. 1 Hale's P. C. 68. 1 Bl. Rep. 3. Ratcliff's Case.

How contrary to every idea of justice would it be to suppose that any man in a state of nature, indebted to another, might, by a quarrel between them, extinguish the claim of his adversary. Such principles would tend to perpetual enmity and war among mankind •, and if an individual "could not do this himself, he could not, by any subsequent engagement with society, transfer such a right to others. Upon the same principle, if one state is indebted to another, (and all states are in a state of nature with respect to each other,) no quarrel or war between them will extinguish the debt. So if two states join and form an empire, or if one subdivide and form two, the debts ²⁶ contracted prior to such events, remain and must be satisfied.

Puff. b. 8. c. 12. s. 2. Here, then, was an obligation contracted, riot between subjects of different independent states, subject to the control, arid the prior obligations to the respective states of which they were citizens, but between two members of the same state, equally bound at the time by one common law. Could either of these, joining with others,. form a new government, and vest such powers in it as to extinguish this prior obligation, which was contracted before the government itself existed ? Government itself may be dissolved, either by breaking the public compact by general consent, or by the power of a conqueror.

The obligations to, the state in these cases cease 5 but yet the contracts of private individuals remain. Ruth. b. 2. c. 10. s. 13. Ruth. b. 2. c. 6. s. 10, 11. 13. Ruth. b. 1. c. 13. 29.

Vattel, b. 2. c. 14. s. 216. When Great Britain, by her conduct, justified the resistance of America^ and the declaration of independence, all obligations to that government ceased. But our private obligations remained, and we were precisely in that predicament of a man who should contract a debt in a state of nature, and afterwards enter into civil society. We had already alienated so much of our natural liberty by the debts we had contracted, and could form no other contract, without the consent of the creditor, to defeat that obligation.

There is a wide difference between power and right. The state of Maryland might refuse the sanction of. her laws for the recovery of such a debt j but if it was necessary on this occasion, Í should contend, on the principles I have suggested, the state could not extinguish it, as being contrary to the laws of nature. Ruth. b. 2. c. 5. s. 3. c. 9. s. 6. But in this case there can be no occasion to resort to that question ; because, when the creditor comes here to Seek his remedy, he submits to the laws of the state s if ²⁷ they prohibit his recovery he must fail; if they do not, he must have judgment in his favour.

The laws of the state are the terms adjusted in writing, on which we are to live with the state, and with each other. The law of nations and public treaties, are the terms on which all states are to live with one another. Furg. Essays, 440, 441.

When there is no treaty, the law of nations, as now established, must prevail between foreigners. But the law of nations is of little import when there is a treaty, for that must be the law between independent nations in all cases to which such treaty extends. In the consideration of this subject I shall examine, 1. Whether, by the law of nations or the common law, this debt was confiscated or extinguished, independent of any positive law of the state ? 2.

Whether it was confiscated or extinguished by any law of the state ? 3. If it was, what is the force and operation of the treaty between Great Britain and this country, of the 3d September, 1783 ? I admit that while a war exists between two nations, all intercourse between their subjects ought to cease, and that it is alone a suspension of the remedy, and may be pleaded in bar to the recovery of debts. Vat. b. 3. c. 5. s. 77.

Grot. 700. 2 Bynk. 177. Park, 267. But it is only a temporary bar that exists while the war continues. The debt remains in conscience, and peace restores the right of action.

If there had been no law of this state respecting this subject, nobody could doubt for a moment but that, on peace taking place, the creditor might have brought suit, being restored to his right of action, and have recovered his debt. Dreadful would be the consequences if it were not so; for upon every war among the nations of Europe, the subjects of those states would be, at least one half of them, made bankrupts and ruined. Bynk. b. 1. c. 7. ²⁸ But the law of nations, as now established, is fixed upon more solid principles of justice and humanity. If the law of nations and the common law operate only as a temporary bar to the recovery during the continuance of the war, let us examine what operation the acts of this state can have on the question.

(Act 1780, c. 5.) That act is nothing more than a legislative compact between the state and its own citizens; the act gives them permission, but does not compel them, to lodge the money in the treasury, (for the use of the creditor,) with assurances that the money so lodged may be pleaded as a payment, or that they would not, by law, give a sanction to the recovery of other money in lieu of it. If this law or compact is repealed or broken, and private individuals have been injured by it, that is a subject which relates to the state and its own citizens that complain of the injury; but the foreign creditor is in no manner affected by it. The state did not intend to confiscate the debt. If they had, they would have appropriated the money so paid to. the use of the state; whereas it is expressly declared to be lodged in the treasury for the use of the creditor, who may receive it whenever he thinks proper.

But the sense of the legislature is clearly expressed by a subsequent law of the same session, when they confiscate all British property, debts only excepted. Act 1780, c. 45. If they had supposed debts were confiscated by the first law, there was no occasion to have Said any thing respecting them in this ; and as the words are general, comprehending all British property, which would have included debts, it is plain by the exception, they meant to declare that debts were not intended to be confiscated. Puff. b. 8. c. 6. s. 20. .

But if the state of Maryland had expressly confiscated British debts, which I contend they have not, nor did not intend to do; yet still, I should now contend the treaty of peace would have done away the effect of such ²⁹ an act, revived the claim, and entitled the creditors to recover. It is no longer a question whether the congress had a power to make such a treaty. It is no longer a question whether the treaty, thus made, can bind the judges to decide upon it, in opposition to the then existing laws of the state. It is now declared to be the supreme law of the land, and is to be carried into effect, according to the spirit, true intent and meaning, thereof.

Act of 1787. The treaty was not intended to operate barely as a repeal of other laws, as it has been contended. If that was the intention, it would only have provided that all laws preventing the recovery of debts should be repealed, and the courts of justice open to suitors on both sides. But this is not the treaty which plainly means that these laws, and all proceedings under them, shall be no impediment to the recovery of debts in sterling money, according to the terms of the original contract.

Suppose the treaty to have recited the law of 1780, c. 5. to have recited the payments in the treasury under that law, and then to have declared that notwithstanding such payment the creditor might recover the debt in sterling money, will it be said this court could avoid carrying* such an express provision into execution? There never was a treaty ending a war without mutual stipulations of benefit. At the time of the contest between Great Britain and America, Great Britain claimed the right of sovereignty over America. America thought she ought not to be subjected, and Great Britain ceded to this country its independence upon condition that they paid the debts due to the British creditors.

Puff. b. 8. c. 8. s. 3, c. 10. s. 7. Ruth. b. 2. c. 9. s. 6. Vat. b. 3. C. 2. s. 12.

Suppose any island in this bay, the property of a citi-. zen of this state, had been ceded by the treaty to the British government, would not the grant of the state, and ³⁰ the right acquired under it, be superseded and lost to the proprietor ? There can be no doubt of it. The government have a right on such occasions to sacrifice the property or the privileges of any part of its citizens for the benefit of the whole. If this be law, let us examine whether the fair and necessary construction of this treaty is not as plain to that effect, as if such a clause had been expressly contained in it.

Vat. b. 2. s. 264. 271. 300. 307. Co. Litt. 147. a. There are two methods of construing treaties; 1st. According to the words. 2d.

That it may operate to the reciprocal benefit of both parties, and to have an effect in furtherance of natural justice and equity. The 4th article of the treaty has the following clause t “ The creditors on either side are to meet with no legal impediment to the recovery of the full value, in sterling, of all bona fide debts heretofore contracted.” W ords as expressive as language will permit, and which comprehend as well their debts that have been deposited in the treasury, as those which have not been attempted to be paid at all. A law that is universally beneficial cannot contain exceptions ; for such would make it only' beneficial in the cases not excepted. The word all, without any exception annexed to it, is a term of universality, and cannot be restrained, there being no ambiguity in the expressions.

To say that this clause was intended to restrain the enacting offuture laws, would be to make it absurd and of no effect, a mere dead letter; for any act passed after the treaty is guarded by the 6th article, and would be null and void. To put such a construction on this article as to consider it a guard against illegal acts, would be absurd, and. all constructions that introduce absurdity are to be avoided. They have said there shall be no legal impediment, which could only mean the impediments ³¹ that existed before the treaty was made should be done away. See Vattel, b. 2. s. 264.

The words are general. If any restrictions were intended, the exceptions ought to have been inserted, or the words will prevail. If they mean what they have not expressed, it was a deception of which they cannot avail themselves. Besides, justice and reciprocal remedies to the subjects of both nations require the construction I contend for.

They made no laws in England for payments of this narture. All persons having claims may ' recover them % and it was certainly the intention to place the subjects of both countries on the same footing. If private persons enter into contracts, they cannot avoid them, or render them nugatory by any implied reservation ; this would be opening a door to endless contention, and the honour and good faith of a nation is more to be considered in the execution of its contracts, than those between private individuals. I have shown that neither the law of nations, nor the common law, were any impediment to the recovery of debts after peace.

I have shown that the state did not confiscate, but expressly excepted debts out of the act. If the act of 1780, c. 5. had not been passed, would the payment in the treasury have been good l Certainly not ; it would have been illegal, and the court would have paid no regard to it. But the act of 1780 made the payment an impediment to the recovery; therefore it was a legal impediment, and there was no other legal impediment. If the treaty was not intended to remove this impediment, created by this law, it could have relation to nothing, and is a mere dead letter.

If the law had not passed, all debts would have been recoverable after peace, if the treaty had said nothing about them. All debts not paid into the treasury under the law, would be recoverable if the law had continued, ³² and the treaty had been silent respecting them; then the treaty must, by necessary construction, be applied to avoid these payments, or it can apply tb nothing. Suppose all the debts had been paid into the treasury, and neither party knew it at the time of making the treaty, would not the treaty apply to them ? As there is no other impediment, it must apply to that or nothing.

When property is actually seized, the right of property must be transferred by the pacification, or the party may seize the property again, whenever he is able and strong enough to do it. Puff. b. 8. c. 6. s. 20. The state confiscated, and seized some property. 5th article of the treaty. As to that, the treaty stipulates that congress shall recommend a restitution of confiscated property ; but as to debts it does not recommend; the provision is express, as these were not confiscated and seized, “ that there shall be no legal impediment to the recovery of all bona jide debts heretofore contracted, without any exception whatever." Vat. b. 4. c. 2. s. 21, 22. b. 2. s. 264. 273.

Puff. b. 5. c.12. See also Mr. Jeffersoids correspondence with Mr. Hammond, page 30. 48. How can it be said that it %vas not the intention of the treaty to provide for the payment of debts over which the state had exercised their power, when it appeared that as to debts, of all description, the treaty speaks positively ; but as to those subjects over which the state had exercised their power of confiscation, it only recoma mends a reversion of their laws, and restitution. It is contended the person must be a creditor at thfe time the treaty was made to derive any benefit under the 4th article, and then it is alleged that by the deposit in the treasury, the debt was paid and extinguished; all relation between debtor and creditor ceased, and that a personal defat once extinguished, is gone for ever : This is quibbling, and reprehended by Vattcl and all other writers on treaties.

What was the intent of the contracting parties ? Could the British commissioner, or any man in ³³ England consider the payment, or deposit in the treasury of paper money, as the payment to the creditor? But the debts did exist, they were not confiscated, but only a right given to the debtor to plead this deposit in our own courts in bar to a recovery. There can be no payment unless it is received and accepted, and the act of assembly could not oblige the creditors to accept it; it could only give a power to plead the deposit in bar.

The debt existed until it was bona Jide paid according to the original contract of the parties, unless it be in such instances where the creditors themselves, or by their agents, consented to receive paper, or any other thing in discharge; in such cases, an extinguishment by the act of the party for a moment, would be so for ever. But it is not so, where the suspension or extinguishment is by operation of law, and.not by the consent of the party. If an obligee marries an obligor it is an extinguishment; so if the obligee makes the obligor his executor. 1 Atk. 461. cites 1 Sal. 229. 3 Co. 135. But if administration be granted to the obligor, the remedy is suspended only, for on his death it revives at law against his executor or administrator. 1 Atk. 461.

So if there be an outlawry, it suspends the remedy only; but if it be reversed, or there be a pardon, it removes the impediment. Gilb. C. P. 202. Co. Litt. 128. b.

In like manner, war suspends the remedy, but peacq restores an alien to his right of action; for though each, individual acquires a right as against the enemy himself, to retain the debt during the continuation of the war, yet the plea of alienage is only a temporary bar, and is not said to be more in any book of authority that can be •produced. There is no act of the party in this case that can operate against him; no consent to dissolve this contract, or to suspend it for a moment. Grot. 700. The effect of this act, therefore, was only to take away the remedy by action, which continued until the treaty, the act of a superior power, did away all the effect of ³⁴ the act, and revived the remedy.

As this treaty is the7 supreme law, and made so by our own consent, we have thereby, by our own consent, revived the remedy. An infant by a promise at full age, may give remedy for a debt which before existed in conscience only. Cowp. 289. So the promise of a bankrupt revives a debt extinguished by the certificate of the commissioners of bankruptcy.

Cowp. 290. 544. Doug. A debt, the recovery of which is barred by limitation, may be revived by a bare acknowledgment only. 2 Burr. 1099. Congress having a right to make treaties, had of necessity a right to supersede the effects of any precedent laws of any state in the union.

But we have confirmed this treaty by a law of our own, and declared it the supreme law, and that it shall be carried into effect according t© the spirit, true intent and meaning of it. This makes the question to be simply what is the intention and true construction of the treaty. I contend, that as there was no impediment to the recovery of all debts, except the act of 1780, c. 5. that it was the intention of the contracting parties to remove that impediment, or the words can have no legal operation ; that debts not paid into the treasury might have been recovered without this clause; that no future law could legally be made, if this clause had not been inserted, to prevent a recovery. That you. cannot suppose it was intended to guard against paper emissaries, and the payment of debts in paper, since it had ceased to be a tender long before the peace.

That it could not operate as a repeal of the law of 1780 only, because that would be doing nothing. No money could be paid under that law after the first day of June, 1781, and the effect of the law had taken place long before, and there was no occasion to repeal it, unless it was intended also todo away every thing which had been trans ³⁵ acted under the law, and render the payment wholly void , _ „ ' and or no effect. The government might sacrifice the benefits that individuals would have had, to obtain peace. This construetion is most agreeable to the general and extensive words of the treaty; to the reciprocal benefits intended by it to both parties, and most consonant to justice and equity, and the law of nature, which expressly declares, that all debts ought to be paid according to their full value at the time of the contract.

Ruth. b. 1. c. 13. s. 29. Such has been the construction of this treaty by our own legislature, upon another clause of it; which provides, “ that all persons who have any interest in confiscated lands, either by debts, marriage-settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights ;” and under this clause the state of Maryland has paid one debt of 1200/. sterling, after having confiscated and sold the estate that was mortgaged to secure it. So in the treaties made between France, Spain and Holland with Great Britain, about the same period, there is no such provision, because there existed no such acts of those respective states, which made it necessary to render their effects, by such a clause, of no validity. But to confine the construction of the treaty to debts not paid into the treasury, or to any future acts of this, or other states, is giving the words only one half of their operation, for they certainly comprehend all debts, and all the laws then existing, as well as any that should thereafter be made.

In fact it is downright quibbling, and not unlike the construction put upon a treaty stated by Puff. b. 5. c. 12. between Fabius and Antiochus, in which the Romans stipulated to restore one half of the ships of Antiochus they had taken, and then sawed the whole of them in two, by which they rendered the treaty wholly useless, and which Puffendorf reprobates with great severity. ³⁶ In the cáse that was lately argued in the supreme federal court, The State of Georgia against Towel Brailsford and Hopton, the court were unanimous in declaring that as the state of Georgia had only sequestered, and not confiscated, the debt in question, there was no doubt that the property always remained in the creditor, and that independent of the treaty, peace restored the right of action for the recovery. We have here the common law, the law of nations, and the treaty also, in our favour. The state of Maryland did not confiscate debts; but by the act of 1780, c. 45. which must be considered as part of the same system, expressly excepted them, and the determination ■of congress as to this point is directly in our fav'our. ' I shall only further remark, that if the debt is recoverable, interest, the suit being upon a bond, is as much a part of the debt by the contract of the parties as the principal, and must be recoverable also, 3 Burr. 13 75. Key, for the appellee.

The magnitude of this subject arises from the great degree of property at stake on the decision of the court, and the general expectancy of the people has given it a. degree of consequence and importance far beyond what any difficulty or intricacy in the case would of itself occasion. By an act of the legislature (1780, c. 5.) of Maryland, after it becomes an independent state, the citizens of said state, debtors to British subjects, were permitted to discharge their debts under certain circumstances, by a payment of continental paper money to the treasurers of said state, and the receipt of the treasurers should be good and sufficient evidence of the payment of such debt, in the courts of law and equity. By the 4th article of the treaty between America and Great Britain it is agreed, “ that creditors on either side ³⁷ shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted.” Act of May, 1787, c. 25. The state of Maryland by a law enacted that the said treaty should be the supreme law of the land, and should be so considered and adjudged in all courts of law, and all causes and questions cognisable in said courts ought and shall be determined according to the said treaty, and the tenor, true intent, and meaning thereof.

Many of the citizens of the state of Maryland availed themselves of the act of 1780, and paid their British debts into the treasury. The creditors, by virtue of the treaty, have commenced suits against such debtors, and they have pleaded their payments in the treasury under the act of 1780, in bar of the recovery of such debts, and the simple question is, “ whether under, and in virtue of the said treaty and act of 1787, the creditors can now recover their debts against such payments, made in pursuance of the act of 1780.” Questions depending between nations must be determined by the laws of nations where there has been no treaty. But if a treaty exists, the true construction of that treaty must be the rule, and must govern between them. 1. However, I shall consider the situation of the creditor and debtor at the time of the contract, and the operation of the laws of nations upon their contract, arising from the establishment of the state of Maryland into an independent sovereignty, and the subsequent war. 2.

The operation and extent of the act of 1780, c. 5. sec. 11. upon those debts. 3. The operation of the treaty of peace, the act of 1787, and the act of 1780, as being made pari materia, and from thence form a conclusion of clear construction that the British creditors are entitled to recover of the ³⁸ original debtors the amount of their respective claims, notwithstanding the payment into the treasury of Mary land. Upon the first point. It is obvious that the debt was contracted between citizens and subjects of the same go« vernment, bound by the same laws, under the same obligations.

That by the secession of the colonies of North America from Great Britain, the debtor and creditor became citizens and subjects of different independent governments, and I hold, under such circumstances, that the debtor carried the obligation of the debt upon and with him when he became the member of a new independent government. 1 Ruth. c. 12. s. 9. Vattel, Prel. sec. 11. If two persons in a state of nature enter into a contract, and afterwards become citizens of the same or different governments, the contract still exists between them, and is not defeated by their posterior act. The same reason exists if two persons are citizens of the same state or government, and one becomes a citizen of another government, the anterior contract or obligation is not destroyed by this posterior conduct, and it follows necessarily, if the same government of which they were citizens divides itself into two or more independent sovereignties, the anterior contract rides over the subsequent act of the parties, and binds them though they become members of different sovereignties created out of that government of which both were citizens at the time of the contract.

This may be familiarized by examples : if A. a citizen of Maryland, largely indebted to his fellow citizens, goes to France and there becomes a citizen, it does not annul or dissolve contracts antecedently entered into by him, but they follow and attach upon him. The state of Virginia allows a citizen to expatriate himself by a particular law. This done, such person is in a state of nature with respect to all governments j free ³⁹ to choose of which he will become a citizen, and becoming one, his debts and contracts antecedently created follow and attach upon him, and any other construction would be idle and absurd; it would be preposterous to suppose, that by permitting a person to expatriate himself, he was thereby to be exonerated from his private contracts and engagements. If from reason and authorities it is clear that where two persons in a state of nature enter into a contract, and one or both of them becoming afterwards members of different sovereignties, the contract still follows and binds, there certainly is, and can exist, no sound distinction where two citizens of the same government enter into a contract, and afterwards become citizens of different ,-sovereignties, but the contract must equally follow and bind; and from this it necessarily results, that the Maryland debtor, by the erection of Maryland into an independent sovereignty, is bound by those debts and contracts entered into when Maryland was a part of the British empire, and before its secession.

But it is objected, that the subsequent war between America and Great Britain confiscated the debts due from an American to a British subject, though created when under the same common government, and being alien enemies by reason of the war, the debt is not recoverable. To this I reply, that by the law of nature all property and debts of aliens became confiscated by -a declaration of war. In ancient times every thing belonging to an enemy was fair gain, and in the most polished nations of antiquity the life of an enemy as well as his property was in the captor. They were generally, when taken, sold as slaves.

But war is sufficiently dreadful of itself, without recurrence to the barbarous ideas and usage of even the most refined,of the ancient nations. To the honour of humanity, the frequent intercourse of modern nations, and the reciprocal benefits of extended commerce, has ⁴⁰ established a different law; and however, in cases of extreme necessity, nations may be justified by the law of nature, to preserve themselves by a confiscation of debts due to an enemy, yet only such necessity can justify it, and it is not the law of nations, as now practised, so to do. The invariable usage is otherwise, and the history of the present century does not afford an instance of confiscation of debts by a declaration of war. Millions would have been'beggared on such principles in the frequent wars between England, France, Spain aiid Holland., within this century; and debts in modern times, eveii between citizens of different governments, being contracted upon faith of the usage now established among nations, it would be a breach of that faith, and a violation of the law of nations, to consider a declaration of war, of itself, as a confiscation of debts.

A declaration of war does not pay debts between the partie s; but upon principles of policy, nations may not suffer their citizens to pay debts to enemies during a war, because it carries funds and resources out of their country to enrich their enemies. It weakens themselves and empowers their adversaries. War at present, therefore, only suspends the remedy, and if a suit be brought to recover a debt during a war, alien enemy may be pleaded in abatement or bar of such recovery. But such bar is only a temporary one ; exists during the war only, et cessante ratione cessat et ipsa lex.

The policy ceasing, the measure directed by it ceases also, and peace, which restores the remedy, entitles the party to recover his debt from the alien debtor. See Vattel, b. 3. c. 5. s. 77. Grot. 700. Bynk. 177.

Parker’s Rep. 267. If, therefore, the situation of the contracting parties, becoming subsequently members of a new independent sovereignty, does not destroy the debt or contract, but it. still continues to exist between them, and if a declaration of war, according to the law of nations as now practised, does not, of itself, confiscate the debts due to aliens, we ⁴¹ ■must recurto the act of 1780, permitting the payments from the debtors into the treasury, to see the operation and extent of that act, which leads me to the second point, to wit: The operation and extent of the act of 1780, c. 5. s. 11. upon these debts. This act permitted the citizens of Maryland, debtors to British subjects, under certain circumstances, to pay the amount of their debts into the treasury, and the treasurer’s receipt should be evidence of such payment. I shall observe upon this act, that the debts due to British subjects were not confiscated, and what evidences this clearly, besides the exposition of the law is, a future law of the same session, where, in the general confiscation law, debts are excepted. • This law did not even compel or direct debtors to pay their debts into the treasury, but was merely permissive, and upon such payment made, authorized the debtors to plead the same in bar to the claims.

Had a general confiscation of debts been contemplated, they would have been ordered to be paid into the treasury; but this was not the case. This law, then, became an impediment only to the recovery of British debts, as it furnished the debtor with a plea of payment against the creditor, though in truth and fact, no payment between the creditor and debtor existed. From reasons of policy this law took place, and might be availed of by the debtor in the same manner as alien enemy at common law might have been pleaded by him, and being an impediment to the recovery of the debt by the creditor, it would have barred the recovery had not the treaty and act of 1787 taken place, as I mean to show in the consideration of the third point, to wit; 3d. Point.

That the treaty of peace, and act of 1787 together, repeal the act of 1780, and all benefits derived under it, and leave the creditor to recover his deb.t from the original debtor. I have already observed, that the law of nations governs between nations where there fe ⁴² no treaty; but if a treaty exists, the true constructive of that treaty must determine a controversy. Whether the congress of the United States of America could then legally make a treaty to contravene the positive laws of any individual state or not, can be no question in our courts. The act of 1787 declares the treaty to be the supreme law, and directs our judges t© be governed by it.

Vattel, b. 2. c. 17. s. 269. The first general rule in the construction of a treaty I take to be the words of the treaty itself, expressive of the sense of the contracting parties, and the words of the 4th article of the treaty are so clear and precise that it seems to require some ingenuity to misunderstand them. “ That creditors on either side shall meet with no lawful impediment,” &c. What then is the obvious intent of the contracting parties, but that all bona jide debts theretofore contracted should be fully paid ? Was it, or could it be conceived by the agent of the contracting powers, that a payment into the treasury of Maryland of depreciated paper was a full payment of the debts to the creditor ?

Most certainly not; but if any doubt or obscurity arises upon the expressions in this article, or if common sense and common honesty can doubt the meaning of the contracting parties at the time, let us resort to the preamble o£ the treaty as a key to discover the meaning of them. It wisely states, that reciprocal advantages and mutual conveniences form the only permanent foundation of peace between states, See. ; that this treaty should take, place on principles of liberal equity and reciprocity, and reprobates partial advantages as seeds of discord, &c. Now let us examine the reciprocity and liberal equity contended for. A citizen of Maryland is to be protected in the payment to a British creditor of depreciated paper money into the treasury of Maryland,, in discharge of his debt, and the British debtor is to pay the American creditor in gold and silver, to the full amount of his ⁴³ claim.

For instance, an American debtor owes 1,000/. to a subject of Great Britain, and pays into the treasury of Maryland the balance of 50/. in discharge thereof, 'and being the creditor of a British subject to the amount of 1,000/., he sues for it under the treaty, and recovers it in gold and silver. Now, if this be the spirit of the treaty upon principles of reciprocity and liberal equity, and reprobating partial advantages, the whole college of Jesuits may tafee lessons of chicane and duplicity from its construction. But it is objected, that the treaty mentioning debts, must mean debts then existing, and these debts being discharged by a payment into the treasury, are no longer debts, and, consequently, the treaty cannot operate on them. This is begging the question — the petitio principn of the logicians; for though the act of 1780 might per» Bait the payment into the treasury to be pleaded in bar of those debts as an agreement between the state and the debtors, yet the creditor was no party to this law, and without his assent was to be injured by its operation; and what was the treaty for, but made by the heads of the respective contracting parties, with a view to the benefit of the individuals of each nation.

The contract is, that the creditor on each side shall meet with no law» ful impediment to the recovery of their debts. Then, as between the British creditor and American debtor, no payment has ever taken place, and if no payment, consequently the debt still exists and the creditors are entitled to recover, and this recovery between the creditor and debtor is guarantied by the 4th article of the treaty. A declaration of war, as at present practised, suspends the remedy for the recovery of the debt; but war ceasing, the remedy revives with peace, and the debt is then recoverable. The state of Maryland, by the act of 1780, permitted the debtor to pay his debt into the trea~ ⁴⁴ sury, and plead or give in evidence such payment in bar to recovery.

This law, then, became an impediment to the creditor in the recovery of his debt, and peace, which in ordinary cases restores the remedy, would not have restored it in the face of the law, therefore it became necessary for a precise stipulation, and it was contracted in the 4th article of the treaty, that there should be no lawful impediment to the recovery. Now on a peace taking place, there being no impediment but this law to prevent the recovery of the debt, the treaty was intended and must be construed to operate on this very law of 1780, and though the treaty would not of itself annul the law, yet being declared the supreme law of the land in 1787, it does repeal and annul the provisions of the act of 1780. Vattel, in his chapter on the construction of treaties, says, that “ where one construction leads to obscurity, and another to clearness and certainty, there can be little difficulty in determining which to choose.” Now those debts are within the meaning of the treaty, or you construe it to be a dead letter. The treaty does not extend to illegal acts, but, no doubt, extends to laws (which are legal acts) of the state before the treaty.

These debts were contracted before the treaty, and the only impediment to the recovery is the law passed in 1780, and, consequently, that law was contemplated by the contracting parties, and comes within the words and meaning of the treaty, and in truth, fact, honour and justice, there being no payment by the debtor to the creditor, the debt as between them still existed, and being an existing debt between them at the time of the treaty, and the treaty operating to protect the rights of the individuals of each nation, the ’ debt is recoverable by virtue thereof and the law of 1787. The words of the 4th article are universal and comprehensive. But it is objected that the act of 1780 gave the debtor a right to pay his debt into the treasury, and upon pay ⁴⁵ ment, this right vested in him, and being once vested, could not be devested ; once a payment, always a payment, and the repeal of the act could not defeat rights accrued under it. It may be answered: the payment into the treasury of Maryland was a legislative compact between the state and its citizens.

The foreign creditor was no party, and, as I have observed, the act gave the debtor a right tb plead the payment in bar. Now as the legislature of Maryland had a right to confer a benefit on the debtor, its power was equal in depriving him of it afterwards, as exigencies required. Had the creditor brought suit during the existence of the law, the plea of payment in the treasury would have been a bar, and yet common sense must admit it to be no payment to the creditor; but no suit being brought until the plea given by the act of 1780 was destroyed by the treaty and subsequent act of 1787, it is no longer efficacious. There never was a treaty without stipulating natural concessions for mutual benefit, and it was found necessary, in attaining this end, that creditors on each side should be protected in the recovery of their just debts, and this is declared to be upon principles of liberal equity and reciprocity.

What necessarily follows That to obtain the great end of peace, as beneficial to the whole states, the rights of particular individuals should be sacrificed for the general good; and the payments into the treasury being a measure of policy, and not a payment to the creditor, such payments were sacrificed to the general public welfare, and a stipulation was entered into that the creditqrs on each side should meet with no lawful impediment to the recovery of their debts, and, consequently, the creditors are entitled to recover. The stipulations of the 4th article are absolutely void and nugatory upon any other construction than what I contend for. Supposing the act of 1780 never to have ta~ ⁴⁶ ken place, upon the establishment of peace the creditor could sue for and recover his debts. Then why introduce this article but to defeat the legal impediment to the recovery of these debts, created by the positive law of 1780?

It is objected that it was to guard against future emissions of paper money; but this could not be the object of the contracting parties. Paper, by law, was no tender, and had then ceased even to be a circulating medium. It was felo de se; the immensity of state and continental emissions of money had made it its own executioner; and at this time the revival of a paper emission under which all had suffered, was never contemplated. The spirit and letter of the treaty meant to operate on a very different subject; to restitute the injured creditor the recovery of an honest debt, suspended by the war and the provisions of the act of 1780.

As the subject will be exhausted by gentlemen who, as counsel, have had the cause under consideration years before I was engaged in it, but who have aided me with their notes; to their arguments I shall refer, observing only, that this case must ultimately rest on the true liberal construction of the treaty, upon such principles as will, in its own language, best ensure a permanent peace, by making liberal equity and mutual reciprocity (free from partial advantage) the basis of it; and only suggesting to your honours, that the empire of America, now risen to importance amongst the nations of the earth, should establish its honour by a religious adherence to the extent of its engagements, free from cavil and exempt from chicane. fellings, for the appellee. Before and at the time of the happening of the disputes which have produced a separation between Great Britain and America, many of the subjects and inhabitants of the state of Maryland were indebted in considerable sums of money to several British subjects then and still resident in Great Britain* ⁴⁷ Soon after the different states had assumed to them» selves the powers of legislation, independently of the government of Great Britain, the state of Maryland, amongst the rest, made an ordinance or act of assembly, whereby the representatives of the state in congress were empowered to enter into a federal union. This union was in a short time effected, and was afterwards confirmed by a law of the separate legislature of each state. By the terms of the confederation the sole power of making war and peace was lodged in the congress, as in the body which represented all the states.

Previously to the year 1780, both the congress and the different states of America had issued great quantities of paper money, which were then in a state of extreme depreciation. In this situation of things, the state of Maryland thought it expedient to pass a law to empower debtors within that state, to pay into the treasury there, in discharge of their several debts, the amount thereof in paper currency, according to, and estimating such bill in ©ach payment, at the sum for which it was drawn, though at that time, a bill for forty dollars was worth only one dollar in specie. For this purpose the act of assembly, 1780, c. 5. was passed. In pursuance of this act of assembly, several of the inhabitants of Maryland who had contracted debts with British subjects resident in Britain, paid into the hands of the treasurer of the state, within the time limited by the act, the amount of their several debts, either in the old bills of credit, when one dollar in specie was worth only forty in paper currency, or in new bills, at the rate of one for forty of the old bills.

On the 3d of September, 1783, the definitive treaty of peace between Great Britain and America was concluded, and by article 4th of that treaty,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.” ⁴⁸ la April, 1787, the following act of assembly was passed: “ An act declaring the treaty of peace between the United States and his Britannic Majesty, the supreme law within this state. “ Be it enacted by the general assembly of Maryland\ and it is hereby declared, that the treaty of peace made between the United States of America and his Britannic Majesty, is the . supreme law within this state, and shall be so considered and adjudged, in all courts of law and equity; and all causes and questions cognisable by the said courts respectively, ought and shall be determined according tó the said treaty, and the true intent and meaning thereof.” Since the treaty of peace, some of the British creditors have, for the recovery of their debts, commenced actions which are now depending against their debtors, residents in Maryland, who, by way of defence, insist, that having complied with the. terms prescribed to them by the act of assembly, passed in 1780, they are legally discharged from the payment of these debts. The true construction of the treaty includes these debts, and it was intended they should be recovered. This is the first question which has been agitated in this state under the treaty, and being now to be determined by our own tribunals, we should decide it on the most liberal principles. We have just become a nation, and it is with nations as it is with individuals j their first conduct generally stamps their character for integrity, The preamble plainly shows the principles on which the treaty should be construed.

Questions between nations must be decided by the law of nations, where there are no treaties. But where a treaty exists, that must be the rule. There being a treaty in this case, the law of nations is of little import, unless the expressions of the treaty are ambiguous, and then the ⁴⁹ law of nations may be called in aid as a rule of construction. It is still more useless to run back into the conduct of barbarous or ancient nations.

In former times, whatever was taken by enemies, whether persons or property, belonged to the captors. They acquired the power of life and death, of slavery and manumission. Their conduct after a victorious war was more or less savage and cruel, as they were more or less civilized. The Romans dragged conquered princes at their chariot wheels, when the generals were decreed a triumph.

But if the English had treated marshal Tollard in this manner when he was brought a prisoner to London, in the reign of Queen Anne, ancient practice would not have justified such barbarity. To wander into remote antiquity on these subjects, however amusing, cannot enforce conviction respecting the present question. To pursue the argument in this manner is as absurd as quoting the ancient Romish canons respecting the annulling of Shandy’s baptism, which occasioned Toby to remark, u but what has all this to do With the child of a protestant gentleman, christened Tristram, against the will of his friends and relations ?” So here, what has the conduct of the Medes, Persians, or Macedonians, or the period of uncivilized customs in England, to do with the present law of nations, or the construction of a treaty entered into for settling peace on reciprocal and liberal terms, between America and Great Britain, who entered into and agreed to be bound by this treaty to terminate their differences. War is sufficiently terrible as at present carried ona and there needs no superadded calamity, under the sanction of ancient cruelty, to render it more terrible.

Instead, therefore, of wandering into the wilds of antiquity, we must have recourse to the treaty, which is plain and explicit. The first rule of construction is to resort to the words, they being used by the parties to express their meanings ⁵⁰ if these are plain, we should be guided by them. The words are plain : (Art. 4.) “ It is agreed that the 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 contractedwords as plain as language can make them. Where such general terms are used, if any restrictions were intended by one party to operate as exceptions, such restrictions ought to be mentioned, and ought not to be supposed.

See Vattel on the interpretation of treaties, b. 2. c. 17. If there were, thérefore, local laws existing, and within the knowledge of one of the parties, which were meant to operate as exceptions, they should have been mentioned'. Should a different construction prevail, the party, would take advantage of his own wrong; for if the words are so general as to include a case he means to exclude, he should be bound by the general words, or he would be benefited by his own deception. If persons entering into contracts could avoid complying with the express terms of them under pretence of an implied reservation as to particular acts, it would open a door for endless altercation, instead of terminating differences, which ought to be the natural effects of agreements.

A fortiori, Ought such subterfuges to be allowed in this case where the parties have expressly stipulated to treat on the most liberal terms. Neither side could mean to stipulate against illegal acts of individuals, such as unwarrantable combinations of debtors therefore such proceedings could not be considered as infractions of the treaty, though we may presume the respective governments, in support of their own authority, would punish the aggressors. But any impediment that creditors should meet with, under colour of- a law of the state, would be an infraction of the treaty, ánd was expressly guarded against; to construe it otherwise, this treaty does nothing. It is plain the treaty does not extend, upon any known ⁵¹ yule of construction, to the illegal acts, and if it does not either extend to acts imposed by law, it does nothing; for all impediments to the recovery of these debts must be unlawful impediments, or impediments imposed by law.

It cannot extend to unlawful ones, and they say it does not to others; therefore it does nothing. Is not this a bona fide debt ? Was it not contracted be- * fore the treaty ? Is not the impediment opposed to its recovery created by a law of the state l These facts cannot be denied, and it follows that the case is included within the express words of the treaty.

To suppose it does not extend to any impediments then existing, but was meant to prevent others in future, would be derogatory to the honour of the United States, as well as contrary to the words of the treaty. It would be derogatory to their honour, for it would be supposing they had a design to act with duplicity; that is, notwithstanding in the outset, they profess to treat on terms of liberal equity and reciprocity, and to exclude partial advantages, and use words fully expressive of this intent; yet that they would have passed laws, after the treaty, to destroy or diminish debts due to British merchants, had they not been prevented by a subsequent clause in the treaty. The words of the treaty are general; but to give it this partial construction would destroy this general effect plainly expressed. Had they meant no future laws should be made, and nothing more, they would have expressed it, and not have used such general and inapposite language to express such a meaning.

If the letter of the 4th article was less explicit than it is, the preamble would explain the meaning. There are to be no partial advantages, and there is to be liberal equity and reciprocity. Now there were no laws in England made during the war, or at any other time, to affect American debts. But if the British debts are to be ⁵² destroyed notwithstanding the treaty, the reciprocity s* candidly professed is plainly violated.

Suppose all Bri~ debts had been paid into the respective state treasuries in paper money, (the contrary of which neither of the contracting parties could know,) then, on the principles of construction contended for on the other side, the treaty might have had the effect to compel British debt» ors to pay all claims to American creditors, and to leave the B. :iisft creditors with a payment of one for forty. A construction which might have an effect so unjust, can certainly never be right, cannot be liberal or reciprocal ; yet such it ought to be. Saying that creditors should meet with no lawful impediments, certainly means that no such impediments should be of any effect. A law that might have been a lawful impediment to the recovery of antecedent debts, is by the treaty prevented from having such consequence.

The payment into the treasury under the law was, or was not a lawful impediment antecedent to the treaty ; if it never was a lawful impediment, then it can ■have no effect. If it was ever a lawful impediment, then, by the express words of the treaty, it is removed. The .act of April session, 1787, strengthens these observations. This law must be construed as if the words of the treaty were repeated in it; if so, it certainly includes all impediments. 2.

The treaty should ba construed to have some effect, with respect to debts, or it would not have mentioned them; and construing the treaty to have a future effect only, is unjust and absurd. To construe the treaty to mean only that no future laws should be made as impediments to the recovery of British debts, is making it of no effect, unless we suppose that the states would have acted unjustly in making such laws. By the law of nations as now established, debts are recoverable after a peace; therefore at least all debts ⁵³ not affected by any local laws of the particular states* were recoverable without the aid of a treaty, and to give it this effect only, is saying no more than would have been said without it. It might as well be said that .the treaty intended that no laws should be made to prevent British creditors from recovering their debts which might be contracted after the treaty, as to suppose any laws would be made after the treaty of peace, to prevent former debts being recovered according to the law of nations.

But both being equally unjust, it could not be imagined that either would be attempted. There was no occasion for a treaty to guard against the mischiefs, as there was a sufficient provision against both by the laws of nations. The treaty, therefore, was properly applicable to debts which would otherwise be affected by the local laws of the states, and any other construction would be nugatory. To have made future laws to prevent the payment of British debts after the treaty was made, would have been contrary to the law of nations, therefore unlawful; consequently, if such were the only laws intended to be guarded against, the language would have been more proper, had, it said, ^ the creditors shall meet with no unlawful impediments So the recovery of their debts.” If debts are absolutely forfeited by a war, the act of 1780, enabling debtors to make payments into the treasury, was needless, for the debtors were already discharged from payment, and this act, instead of being a benefit to them, was an injüry, as it compelled them to make some payment, trifling as it was, and which, without this act, they need not have made.

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