THIS was an action of trespass brought against the Defendant upon an act of the Legislature of this state, passed the seven­teenth of March, one thousand seven hundred and eighty-three, for the occupation of a brew-house and malt-house of the Plaintiff, from the thirteenth day of August, one thousand seven hundred and se­venty-eight, until the time of passing the act above­mentioned. The cause came on to be argued upon demurrer, before the Honorable James Duane, Esq. Mayor, Richard Varrick, Esq. Recorder, Benja­min Blagge, William W. Gilbert, William Neil­son, Thomas Randal, and Thomas Ivers, Esquires, Aldermen, on Tuesday the twenty-ninth day of June past.

The Counsel for the Plaintiff, were Mr. Law­rence, assisted by the Attorney-General, Mr. Wil­cox, and Mr. Troupe. Those for the Defendant, [Page 4] were Mr. Hamilton, assisted by Mr. B. Livingston, and Mr. Lewis.

Mr. Lawrence opened the pleadings and argu­ments on the part of the Plaintiff, and was followed by Mr. Wilcox. Mr. Livingston, Mr. Lewis, and Mr. Hamilton, were next successively heard, in be­half of the Defendant; and were replied to by Mr. Lawrence, Mr. Troupe, and the Attorney-General. The arguments on both sides were elaborate, and the authorities numerous.

The Court took time to advise, until Tuesday the twenty-seventh day of August, and then the Hono­rable the Mayor proceeded to deliver the judgment of the Court, as follows:

"IN the case of Elizabeth Rutgers, versus Joshua Waddington, which we gave notice should be de­termined this day, the Court now proceed to judg­ment. It is represented to be a controversy of high importance; from the value of the property, which in this and other actions depends on the same princi­ples; from involving in it questions, which must af­fect the national character:—Questions whose decision will record the spirit of our Courts to prosperity! Questions which embrace the whole law of nations!

It were to be wished, that a cause of this magni­tude was not to receive its first impression from a Court of such a limited jurisdiction, as that in which we preside;—from Magistrates actively engaged in establishing the police of a disordered city, and in other duties, which cut them off from those studious researches, which great and intricate questions re­quire. If we err in our opinion, it will be a a consolation, that it has been intimated, "to be [Page 5] probable, whatever may be the determination that it will not end here."

The Counsel on both sides, who have managed this cause, and by whose diligence and abilities, so much learning, on an uncommon subject, hath been drawn into view, have spared us much labour.

We cannot but express the pleasure which we have received, in seeing young gentlemen, just call­ed to the bar, from the active and honorable scenes of a military life, already so distinguished as public speakers, so much improved in an arduous science.^*

That in a contest, (which we are told) is not con­sidered without temporary prepossession, we may express our sentiments with more deliberation and correct­ness; and that nothing to be offered by us, may be misunderstood or misapplied, we have taken the trouble to preserve our remarks by committing them to paper.^‡

The action is grounded on a statute of this state, entitled, ‘an act for granting a more effectual relief in cases of certain trespasses,’ passed the se­venteenth day of March, one thousand seven hun­dred and eighty-three; and the declaration charges, 1st. The substance of the act, viz. "That it shall and may be lawful for any person or persons, who are, or were inhabitants of this state, and who, by reason of the invasion of the enemy, left his, her, or their place or places of abode, who have not volun­tarily put themselves respectively into the power of [Page 6] the enemy, since they respectively left their places of abode, his, her, or their heirs, executors, or admini­strators, to bring an action of trespass against any person or persons, who may have occupied, injured, or destroyed his, her, or their estate, either real or personal, within the power of the enemy."

2. Complains that the Defendant, on the thirtieth day of August, 1778, with force and arms, &c. oc­cupied one brew-house, and one malt-house of the Plaintiff, situate in the east ward of the city of New-York, and within the jurisdiction of this Court, and his occupation thereof so continued, from the said 13th day of August, in the year 1778, until the 17th day of March, in the year 1783.

3. And also, that he the said Joshua, with force and arms, &c. afterwards, to wit, the same 13th day of August, 1778, and at divers days and times, between the said 13th day of August, 1778, and the 17th day of March, 1783, occupied one other brew-house, and one other malt-house, of her the said Elizabeth, within the city and ward, and within the jurisdiction, &c. et alia enormia, to the great da­mage, &c. against the peace, &c. And the said Eli­zabeth avers,—

1st. That there was open war between the king of Great-Britain, his vassals, &c. and the people of the state of New-York aforesaid, on the 10th day of September, 1776, to wit, at the east ward, &c. and within, &c. and that the said open war con­tinued from the said day, until the time of passing the act aforesaid.

2d. That the King of Great-Britain, his vassals, &c. and the enemy mentioned and intended in the said act are one and the same and not different.

[Page 7]3d. That she was an inhabitant of the state of New-York, and that the place of her abode was the city of New-York, in the state of New-York, on the tenth day of September, in the year last afore­said, to wit, in the east ward, &c. and within the jurisdiction, &c.

4th. That by reason of the invasion of the enemy, she the said Elizabeth afterwards, to wit, the said tenth day of September, in the year aforesaid, left her said place of abode, to wit, in the ward afore­said and within &c.

5th. That she did not, at any time after she left her said place of abode, as aforesaid, voluntarily put herself within the power of the enemy aforesaid.

6th. That the brew-house and malt-house afore­said, were parcel of the real estate of the said Eliza­beth, and at the days and times they were occupied by the said Joshua were in the power of the enemy, to wit, at the east ward, &c, and within &c.

Wherefore the said Elizabeth saith she is made worse, and hath sustained damage to eight thousand Pounds et inde, &c.

The Defendant to this charge, as to the force and arms and whatsoever is against the peace, and as to the whole of the trespass aforesaid, except as to the occupying the said brew-house and malt-house of the said Elizabeth, on the twenty-eighth day of September 1778, and continuing the occupa­tion thereof until the seventeenth day of March 1783, he pleads not guilty and takes issue.

And as to the occupying the brew-house and malt-house, on the aforesaid twenty-eighth day of Septem­ber, 1778, and continuing the occupation thereof until the last day of April 1780 inclusively, the said Defendant saith, that the said Elizabeth actionem [Page 8] non, quia dicet, that long before the said twenty-seventh day of September 1778, to wit, on the fourth day of July 1776, in (substance) the declara­tion of independence by Congress, who did then and there declare, that the United Colonies were, and of right ought to be free and independent states; that they were absolved from all allegiance to the British crown, and that all political connection be­tween them an the state of Great-Britain was, and ought to be totally dissolved, &c. That the said de­claration was on the ninth of July, in the year afore­said, approved of by the Convention of the state of New-York: And afterwards, on the 8th day of May 1777, the same was recognized and confirmed by the Legislature of this state.

That upon the 10th day of September 1776, and from that time until after the last day of April 1783, there being open war between &c. the army of the said king, on the 10th day of September, 1776, conquered the city of New-York, and con­tinued in uninterrupted possession thereof, from that time until and after the last day of April 1778; and the said army so being in possession, the said brew-house and malt-house, by virtue of authority from the Commander in Chief of the said army, on the 10th day of June 1778, was taken possession of by the Commissary-General of the said army, for the use of the said army—as by the laws, &c. of nati­ons in time of war he lawfully might do—and that the said Commissary on &c. at &c. gave his licence and permission to Benjamin Waddington and Evelyn Pierrepont, residing in the said city as British mer­chants, under the protection of the said British army, and having been from their birth and still being sub­jects of the King of Great-Britain, to enter into, [Page 9] use and occupy the said malt-house and brew-house, from the said 28th day of September 1778 inclusive­ly, to the last day of April 1780 inclusively: By virtue whereof they entered and occupied the pre­mises, from the first of the two last mentioned days to the last inclusively; and the Defendant as their servant and at their command, horn time to time, and at divers times rom the first to the last of those days, entered into and occupied the said brew-house and malt-house, for the benefit of the said Benjamin and Evelyn; Quae est eadem &c. whereof the Plain­tiff complains, in the first count of her declaration.

And as to the occupying the said brew-house and malt-house, from the last day of April, 1780, to the 17th of March, 1783, he pleads over again the de­claration of independence of these states; the appro­bation thereof by the Convention of the state; and the recognition and confirmation thereof by the Con­vention; the conquest of the city of New-York by the British: And that the brew house and malt-house, being out of the possession of the Plaintiff, the Commander in Chief of the said army, on the last day of April, 1780, gave his license and permis­sion (as by the laws of nations he might lawfully do) to the said Benjamin and Evelyn (describing them as in the other plea) to enter into and occupy the said brew-house and malt-house, from the last day of April, 1780, until the said license and permission should be revoked; paying therefore to such person as the Commander in Chief should authorize to re­ceive the same, at the rate of one hundred and fifty pounds for each year, in quarterly payments, &c.

He then avers that they accordingly entered and occupied the said brew-house and malt-house, on the [Page 10] 1st day of May, 1780, and continued the occupa­tion thereof until the 17th day of March, 1783, till when the said license remained in force; and then avers as before, that he as their servant, and at their command, from time to time and at divers times, between the two last mentioned days, did enter and oc­cupy the said brew-house and malt-house, &c, quae est eadem &c. concluding with an averment, that the said Benjamin and Evelyn did pay the said one hundred and fifty pounds a year to John Smith, ap­pointed by the said Commander in Chief to receive the same.

For further plea to the whole of the tresprass, ac­cording to the form of the statute, the Defendant saith, that the Plaintiff actionem non &c. Because he saith, that after the passing the act of the Legisla­ture of this state, in the declaration mentioned, to wit, on the 3d day of September, 1783, at &c. a certain definitive treaty of peace, between the king of Great-Britain and his subjects, and the United States and the subjects and citizens thereof and of each of them, was entered into, made and conclud­ed by plenipotentiaries on the part of the said king and states respectively (naming them) in virtue of full powers &c. which definitive treaty, on the 14th day of January, 1784, at Annapolis, &c. by the Uni­ted States of America in Congress, then and there assembled in due form, was ratified and confirmed; and afterwards on the same day, announced and pub­lished by proclamation under the seal of the United States, to all the good citizens of the said United States; enjoining all magistracies, legislatures, &c. to carry into effect the said definitive treaty &c. prout &c. In virtue of which said definitive treaty, [Page 11] all right, claim, &c. which either of the said contracting parties, and the subjects and citizens of either of them might otherwise have had to any compensation, recompence, retribution, or indemnity whatsoever, for or by reason of any injury, or damage, whether to the public or individuals, which either of the said contracting parties, and the subjects and citizens of either might have done or caused to be done to the other, in consequence of, or in any wise relat­ing to the war between them, from the time of the commencement to the determination thereof, were mutually and reciprocally, virtually and effectually, relinquished, renounced and released to each other &c. —And he avers, as in his other plea, that from the time of his birth, and at all times since, he hath been and still is a subject of the king of Great-Britain: And between the times in his plea mentioned, as a subject of the said king, resided in the city of New-York, using the art, trade, &c. of a merchant, un­der the protection of the army of the said king, then waging war against the said state; et hoc paratus est verificari: Wherefore he prays judgment whether the said Plaintiff, her action against him ought to have or maintain; with this, that the said Joshua will verify that the whole of the trespass by him sup­posed to be committed, is for certain acts &c. by him supposed to have been done while he was re­siding as a subject of the said king, and under the protection of the army of the said king, and in re­lation to the war aforesaid.

The Plaintiff replies as to the plea of the De­fendant, as to the residue of the trespass, by him done as aforesaid, by him above pleaded in bar, that she by reason thereof ought not to be barred [Page 12] from her said action; because she says, that by the act &c. for granting a more effectual relief in cases of certain trespasses, in her declaration in part recited, it is also among other things enacted, that no De­fendant or Defendants, shall be admitted to plead in justification any military order, or command what­soever of the enemy, for such occupancy: And avers, that the said Commissary-General and Commander in Chief were, at the time of giving the permission or license, subjects to the said king of Great-Britain, the enemy mentioned and intended by the act afore­said, and in the military service of the said king: Where­fore seeing that the said Joshua hath acknowledged the trespass by him done as aforesaid, the said Elizabeth prays judgment and her damages, &c.

And as to the further plea of the said Joshua, to the whole of the trespass aforesaid by him pleaded in bar, the Plaintiff demurs.

And the Defendant on his part demurs to the plea of the Plaintiff last above pleaded.

The pleadings close with joinders in demurrer, in the usual forms.

From these pleadings, and the arguments which they have produced, three questions are presented for our consideration.—

Ist. Whether the Plaintiff's case is within the letter and intent of the statute on which this action is grounded?

IIdly. Whether the laws of nations give the cap­tors, and Defendant under them, rights which con­troul the operation of the statute and bar the present suit?

IIIdly. Whether there is such an amnesty in­cluded or implied in the definitive treaty of peace, as virtually or effectually relinquishes or releases the Plaintiff's demand under the said statute?

[Page 13]Under one or other of these heads, all the reasons and authorities which have been offered on both sides, may be properly applied:

I. Then we are to enquire, whether the Plain­tiff's case is within the letter and intent of the sta­tute, on which this action is grounded.

From the concessions which arise out of the plead­ings, we find, that according to the letter of the sta­tute, she was an inhabitant of this city, who by reason of the invasion of the enemy, left her place of abode; and that she hath not since voluntarily put herself into the power of the enemy; that the brew-house and malt-house in question, were part of her real estate; ‘that they were occupied by the Defendant as charged in the declaration, and at the time of such occupancy, were in the power of the enemy:’ and nothing more is required to make Mrs. Rutgers a compleat Plaintiff, within the statute.

Instead of contesting this point, the Defendant's counsel endeavour to shew, that according to the in­tention of the Legislature, the statute cannot com­prehend the Defendant. For this purpose, they strongly rely on his being a British subject, residing in this city as a merchant, under the protection of the British army, when the cause of action accrued.

Without embarrassing the question at present with the privileges claimed for the Defendant, either from the temporary conquest of the city, or the defi­nitive treaty,—which will hereafter meet with due attention —it seems proper to consider simply, whe­ther from the nature of the provision, and the cir­cumstances of the Defendant, he was intended to be included in the statute, for if it doth not extend to [Page 14] him there is an end of the suit—if it doth extend, there will be a fair opening to examine—whether the temporary conquest, or the treaty of peace, operate as an extinguishment, or release of the cause of acti­on? And here it will be proper to enquire into the occasion and nature of the statute—the remedy it pro­vides— and the rules by which it ought to be con­strued.

The statute was made at the eye of a war, when peace, and an evacuation of the southern district, were like to take place. The object of it, as the title expresses, was for granting a more effectual re­lief in cases of certain trespasses. The persons who are to be redressed are the exiles, who were compel­led to retire from their estates, on the invasion of the southern district: The persons to be prosecuted, were those who had occupied, injured, or destroy­ed, the real or personal estates of those exiles, with­in the power of the enemy: and it is provided, that every Defendant who had occupied, injured or de­stroyed the property, shall be held to bail; and that no Defendant shall be admitted to plead in jus­tification, any military order, or command of the enemy for such occupation, &c.

This then is clearly a remedial law. Great pains have been taken on both sides, to enforce the rules by which it ought to be expounded.

The counsel for the Defendant urge, that a sound legal discretion ought to be used in recurring to first principles; so as to make law a rule of right, and not a net to entangle justice. That Ratio est anima legis: et qui haeret in litera haeret in cortice; they point [Page 15] out how far the common law is to be consulted,Show, 405 to 10 mod. 20. Bacon, p. 648, 4 co. 71 a. in the construction of sta­tutes.—

Vin. Stat. 512. 4 co. p. 13.That statutes against law and reason are void.—

1 Domat. p. 782 Puff. b. 5 c. 12 p. 6. Plow. 466, 7.That many things are within the letter, which are not within the equity of a statute.—

Bac. Stat. 649, to 651.That no statute can be construed so as to be inconvenient, or against rea­son.—

They exemplify these rules by a number of par­ticular cases, to which if time does not fail us, pro­per attention shall be paid in another place.

They add, that this being an act of a mere private nature, may be the more easily controuled.

On the other hand it is urged,—That when a sta­tute gives a remedy for a wrong, it is to be construed according to equity.—

That it ought to be construed in suppression of the mischief,Wood 10. and in ad­vancement of the remedy.—

That it ought to be interpreted rea­sonably,Wood 9 mod. 161. and according to the mean­ing of the Legislature.—

Wood 10.That what is in the same mischief is in the same remedy, tho' out of the letter.—

8 mod. 65.That even in the construstion of a penal statute the intention is to be re­garded.—

Heb. 97.That a court ought so to construe a statute as not to suffer it to be elu­ded.—

[Page 16]In one point, both parties agree, that the advice of Plowden is most worthy of attention. ‘In order, says he, to form a right judgment whether a case be within the equity of a statute, it is a good way to suppose the law maker present, and that you asked him the question—did you intend to comprehend this case? Then you must give your­self such answer as you imagine, he being an upright and reasonable man, would have given. If this be, that he did mean to comprehend it, you may safe­ly hold the case to be within the equity of the sta­tute; for while you do no more than he would have done, you do not act contrary to but in con­formity with the statute.’

The result of all these rules is obviously this— that remedial laws are so to be expounded as to have their full force—in advancement of the remedy—upon an equitable interpretation—according to the inten­tion of the Legislature—to be sought after by a sound, legal discretion

Under the impression of these maxims, it is asked whether the law intended to exempt, or to include a per­son under the circumstances or description of the Defendant.

Here then is a British merchant, who merely for the purpose of commerce resided in the city, while it was in the power of the British, for his own private accomodation: He was permitted by the Commissary-General, and afterwards by the Commander in Chief, to enjoy the Plaintiff's property for near six years: He has paid as a rent, one hundred and fifty pounds a year, for three years only of the term, to the order of the British Commander in Chief. He remains in the city, pursuing his business as a merchant, altho' [Page 17] those under whose protection he exercised his func­tion, are long since withdrawn.

The temporary conquest and the definitive treaty out of the question, what can exempt him from the description of the statute? Can any or all the max­ims laid down by his counsel for its construction? Before assent is yielded to such a proposition, let us take a nearer view of his case as connected with his principals under whom he justifies.

If they did not come to this country to join the military in its oppression, and to enrich themselves by its spoils—a suspicion too dishonorable to be en­tertained! If they resided here under the protection of the British army, to pursue their private affairs as merchants—as their pleas avow, and we are bound to believe.—If for their private purposes, without rela­tion to or connection with the war, they occupied the Plaintiff's tenements, confessedly for a consider­able part of the time without any consideration at all? why it is repeated should they be exempted from this statute?

How, as applied to them personally and indepen­dent of national considerations, can it be harder con­trary to reason or justice, that they should be com­pelled to pay an adequate rent for the accommoda­tions which they have enjoyed? why should they even wish to be exempted at the expence of a widow, driven into exile by the dread of a siege, or the ex­pectation of a storm? would not this be unreasona­ble, unjust? If, according to the advice of Plow­den, we were to suppose ourselves conversing with the members of the Legislature; that the Defen­dant's case was fairly stated, as it in fact existed, at the moment of passing the statute; and that they [Page 18] had been asked whether they meant to comprehend such a case, what would probably be their answer? there is no doubt in our minds but it would be in the affirmative. The spirit import general terms of the statute; its design and the circumstances which gave it birth, seem fully to justify this conclusion.

Besides that Legislature knew too well the prac­tice of war, to suppose that the Commissary-General of a British army had competent authority to grant the license or permission in question: From the nature of his office the contrary would be presumed, especially when the pleas themselves aver expressly, ‘that the said brew-house and malt-house, by virtue of authority from the Commander in Chief of the said army, were taken possession of by the said Com­missary-General for the use of the said army.’ The license then from the Commissary to occupy those tenements for the private purposes of the Defendant's employers was repugnant to the orders of his Com­mander in Chief; an encroachment on other depart­ments, for which there was no colour of right; and it is consequently to be considered as a mere nullity. This had the facts been fully represented, the Legislature could not but have observed: To give it now its pro­per weight will be the duty of the court.

As a circumstance of much moment to the Defend­ant it is contended, that the obtaining and the occupancy of the tenements in question, related to the war.

In arguments, which display great skill, and an uncommon degree of zeal and industry, this interest­ing point is slightly touched.

The relationship to the war results from the capture of the city, say the gentlemen, by which the right to the use of the lands vested in the conqueror: His [Page 19] authority to the Defendant to use it continues the relation, and by way of illustration this case is stated — ‘a prize ship is condemned and sold—the pur­chaser is a merchant: tho' this is a private specula­tion on his part, yet the damage done was in rela­tion to the war, and the sale and purchase good.’

But this is a remote argument indeed. The mer­chant here had no other agency than to purchase a prize lawfully condemned, in which, by the law of nations, the original owner no longer had any inter­est, the property being absolutely and effectually changed. Can it then be said with the least appear­ance of reason, that this purchase was an act which bore a relation to the war? it is true the original capture and the damage sustained by it were consequences of the war; but these circumstances could produce no rela­tionship between the act done by the merchant— The purchase, which is the true point—and the war.

Let us suppose a case; a statute passes to criminate every man within the power of the enemy, who had voluntarily done any act on the side of the enemy, in relation to the war; could this Defendant on the facts stated in the pleadings, have been convicted? Take up that part of the case, which would have been most unfavourable to him—his contract with the British commander: He hired the tenements from him; but it was for the purpose of his own private commerce: The rent which he paid contributed to strengthen the hands of the enemy; but they had a right to raise contributions; they had a force to collect them, which could not be resisted. Here then is no evi­dence of hostility or enmity, of a concern in or rela­tion to the war. The most zealous of our friends, within their power, could have been compelled to be related to the war in this way: They must either [Page 20] submit to be accommodated on the terms of the con­queror, or to perish in the streets. Under the pro­secution then which we have supposed, the Defendant must have been acquitted.

We must not be amused by high sounding words —too much is attempted—if a construction of the license from the British commander to occupy the tenements for the three last years of the term, had depended abstractedly on the voice of reason, we must have found it difficult to conceive how even such a license bore a relation to the war.

Here however, other considerations, which it will be premature to explain in this place, must have their weight.

But when it is insisted that the remainder of the term for which the tenements were held under the bare unauthoritative permission of the Commissary-General, had any relation to the war, it is altogether without foundation.

We proceed now to the second general head, in which it is proposed:

IIdly. To enquire—whether the law of nations gives the captors, and the Defendant under them, rigths which controul the operation of the statute, and bar the present suit?

To maintain those rights and that controul, the Defendant's counsel have entered into a large display of the law of nations, its principles, divisions, obli­gations and effects, and have pointed out the sacred­ness of its authority, and the temerity and dishonour, in a national view, of countenancing any act repug­nant to it.

On the other hand, one of the Plaintiff's counsel from a view of the contradictory opinions, which [Page 21] were read, seemed to think that this law afforded no rule of right, and ought to have no influence on the government of a people.

The truth is, that the law of nations is a noble and most important institution: The rights of sove­reigns, and the happiness of the human race, are promoted by its maxims and concerned for its vin­dication.

We hitherto have not been so loudly called upon to form and inculcate an extensive knowledge of this interesting science; but now since we are placed in a new situation, as one of the nations of the earth, it is become an indispensable obligation. We pro­fess to revere the rights of human nature; at every hazard and expence we have vindicated, and suc­cessfully established them in our land! and we can­not but reverence a law which is their chief guar­dian—a law which inculcates as a first principle— that the ^* amiable precepts of the law of nature, are as obligatory on nations in their mutual intercourse, as they are on individuals in their conduct towards each other; and that every nation is bound to con­tribute all in its power to the happiness and perfec­tion of others! What more eminently distinguishes the refined and polished nations of Europe, from the piratical states of Barbary, than a respect or a contempt [Page 22] for this law. Books therefore which treat of the law of nations have always been received with avi­dity and applause.

The principal authorities adduced in this cause, are from Grotius, Puffendorff, Wolfius, Burla­maqui and Vattel.

Grotius, ^* in his book de jure belli et pacis, professes to treat of but a small part of the law of nations— marriage—the power of fathers —masters—and sove­reigns—promises—contracts—oaths—treaties—ambassa­dors —burials—punishments—peace and war.

Commentators have observed, that tho' this ce­lebrated work contains many excellent precepts, it is neither methodical nor comprehensive.

Puffendorff next composed his treatise, de jure na­turae et gentium, in which we find more order, and great erudition: But it has been observed, that this work is not free from error, and that the author has not shewn how the civil does not destroy natural so­ciety; and that the latter only serves to perfect the former.

We are informed, that to illustrate this was at­tempted by Wolsius; ^‡ and after him by Burlamaqui. ^‖ This last work, says a writer, is evidently rather an introduction than a system; and it served only to ex­cite a desire to see it continued with equal perspicu­ity and elegance. The honor of this task was re­served for the great Vattel, whose work is entitled to the highest admiration? He modestly takes Wol­fius for his guide; but in numberless passages cor­rects, abridges and improves him. What Wolfius has diffused into fourteen volumes, our author has contracted into one; at the same time that his rea­sonings [Page 23] are clear and satisfactory, and carry nothing of the dryness of an abridgment.

Thus we see, that the writers on the law of na­tions are distinguished philosophers, of different countries and ages; some educated in republics; some in monarchies; some at a time when prejudice, and an ignorance of the rights of mankind prevailed; and others when philosophy had refined the reason, and in some measure subdued the fiercer passions of the hu­man mind.

Hence it can be no more an objection or re­proach to the law of nations, than it is to any other science (for all partake of imperfection)—that a dif­ference of sentiments and opinions should be discovered among different authors!—A further use intended by these observations, is to justify the preference, which we shall give to Mr. Vattel, in points where we shall find him at variance with other writers.

But to return from this digression, to the argu­ments before us: It has been objected by one of the Plaintiff's counsel, that these states are not bound by the customary and voluntary law of nations, any fur­ther than as either of them, has adopted or engrafted them.

But the objection has been fully answered: By our excellent constitution, the common law is de­clared to be part of the law of the land; and the jus gentium is a branch of the common law. In re­publica maxime conservandi sut jura belli, is an ancient adage.

Co L. p. 11, b. Black. 4, p. 67, Burr. 3 vol. p. 14 30.The authorities cited on this point for the Defendant are full and conclu­sive.

Indeed if we should not recognise the law of na­tions, [Page 24] neither ought the benefit of that law to be ex­tended to us: and it would follow that out commerce, and our persons, in foreign parts, would be unpro­tected by the great sanctions, which it has enjoin­ed.—

After being thus explicit, it is almost unnecessary to touch a more limited question, of the same na­ture, which has been debated in the course of the arguments, viz.

Whether the common laws of war which apply to two great nations, apply to two great parts of the same nation?

The manner in which Mr. Vattel treats this ques­tion, is highly satisfactory; and humanity forbids, that his principles should be ever called in question!

When a nation becomes divided into two parties absolutely independent, and no longer acknowledg­ing a common superior, the state is dissolved; and the war betwixt the two parties, in every respect, is the same with that of a public war, between two dif­ferent nations. Independent of each other, they can have no judge; like two different nations, they ap­peal to the ultima ratio regum—they decide the quar­rel by arms—were it not for the restraints imposed by the law of nations, such a civil war would be be­yond expression cruel and destructive. Hasty pu­nishments, in the moment of rage and animosity, would mark its progress with injustice, slaughter and desolation.

But alas! have the restraints of that benevolent law protected our country in the late war, from the miseries we have described? They have not!—Ven­geance unrestrained, and undistinguished, hath been let loose upon us in all her horrors!

[Page 25]But it is peace!—Let our injuries and our resent­ments be buried forever in the definitive treaty!—

What we have suffered cannot alter the common laws of war: they are founded upon reason and hu­manity, and will prevail as long as reason and huma­nity are cultivated. As philosophy and the love of mankind extend themselves, these beneficial institu­tions will, we trust, be still further improved, to con­troul the human passions, and mitigate the asperities of war; till in the end hostilities shall be banished from the world, as disgraceful to our nature.^* But to return to the point.

The words which follow, are the decision of Vat­tel, speaking of the case before us—"The obliga­tion" says he, ‘of observing the common laws of war,Vatt. b. 3, p. 111, last clause of § 3. is therefore absolute indispensi­ble to both parties; and the same which the law of nature obliges all nations to observe between state and state.’

And here it is questioned, whether since the law of nations is obligatory, it may in any part be alter­ed by a particular society, so as to deprive a foreign­er, when residing in that country, of his appeal to them?

The Defendant's counsel deny, that in theory, a particular state hath such a right. They raise this distinction, that where there is merely an infringe­ment of the local law, foreigners like all others, must [Page 26] be judged by that law: But where the transaction originally affects a man's conduct, as a member of a foreign nation, he may appeal to the law of nations, and by that law, which is part of the law of the land, the thing must be decided.

And they consider the foederal compact as giving additional force to this restraint—

In support of this reasoning, a passage from the elements of jurisprudence,Elem. Jurisp. page 62. is cited to this effect:

"States like the individuals who compose them, are moral persons, they have a public will and un­derstanding, are capable of natural and acquired rights, and susceptible of respective obligations. The primary law of nations therefore is no other than the law of nature, so far as it is applicable to them. Whatever, in this behalf, reason dictates is a duty of natural justice, from the necessary law of nations."

Thus far we could agree with the professor, that to state can by its separate ordinance, prejudice any [...] of such a law—nay, that all the states of the world united could not; because being of moral obligation, it is immutable. But when this doctrine is applied in general to all customs, which prevail by tacit consent as part of the law of nations; we do not find that he is warranted by authorities.

Hook. ec. pol. b. 1. g. 10.Hooker's ec. pol. not being at hand, we have not examined him.

But Vattel treating of the necessary law of nations— which Grotius calls the internal law of nations, and se­veral others the natural law of nations, uses these strong expressions.

"Since then the necessary law of nations consists in the application of the law of nature to states, and is [Page 27] immutable, as being founded on the nature of things,— and in particular on the nature of man: It follows, that the necessary law of nations is immutable, and whence, says he, as this law is immutable, the obligations that arise from it necessary and indis­pensable, nations can neither make any change in it, by their conventions, dispense with it themselves, nor reciprocally with respect to each other.

The restraint then of which the lecturer speaks is not perhaps so general, as he teaches; for accor­ding to Mr. Vattel, it seems only to be applicable to laws of moral obligation. Vattel, p. 2 3.

Now we know, that there are usages of nations which are indifferent, and which, as Mr. Vattel ob­serves, different states may agree to establish by trea­ty, or introduce by custom, at their pleasure.

With respect to such usages, it might perhaps have been considered that every nation by the law of nature, is free and independent of all foreign and external controul; but if one nation must be sub­jected, at all events, to usages which she cannot ap­prove, because others may have thought fit to adopt them, her liberty would no longer remain entire.

The usage of ransoming captures at sea seems to have been dictated by a spirit of benevolence; it fa­voured personal liberty; it afforded some alleviations to the misfortune of the captive merchant and ma­riner, who, unconnected with the war, were in­terrupted in the pursuit of their private concerns; it was an usage which, we believe, every polished na­tion adopted: Nevertheless, when Great-Britain con­ceived, that this usage did not correspond with her interest, her Parliament did not hesitate to abrogate it; for by a statute passed so lately as 1782, it is made unlawful for any British subject to ransom his ship or effects when captured, "and all contracts [Page 28] and agreements which shall be entered into, and all bills and other securities which shall be given to any person or persons, shall be absolutely void."

It cannot be said, that this is a law operating only on the subjects of the British state. All commer­cial nations appear to be interested in the usage; it was a benefit to the captor as well as the captive; nor is any provision made for ransom bills, which might have taken effect before the law could be promul­gated to the different parts of the world.Doug. Kep. P. 169.

This circumstance proves, at least, that the Bri­tish nation did not consider itself bound by the broad principles laid down by the lecturer.

Time will not permit us to give this subject a ful­ler discussion.

We must acknowledge there appears to us very great force in the observation arising from the foede­ral compact. By this compact these states are bound together as one great independent nation; and with respect to their common and national affairs, exercise a joint sovereignty, whose will can only be mani­fested by the acts of their delegates in Congress as­sembled. As a nation they must be governed by one common law of nations; for on any other prin­ciples how can they act with regard to foreign pow­ers; and how shall foreign powers act towards them? It seems evident that abroad they can only be known in their foederal capacity. What then must be the ef­fect? What the confusion? if each separate state should arrogate to itself a right of changing at plea­sure those laws, which are received as a rule of con­duct, by the common consent of the greatest part of the civilized world.

We shall deduce only one inference from what [Page 29] hath been here observed—that to abrogate or alter any one of the known laws or usages of nations, by the authority of a single state, must be contrary to the very nature of the confederacy, and the evident intention of the articles, by which it is established, as well as dangerous to the union itself.

We are next led by the arguments which have been offered, to examine—whether the war was of such a nature; and the capture such a conquest as ab­solutely to transfer, under the idea of an usufruct, the rents and issues of houses and lands to the Bri­tish Commander, during his occupancy of the city?

On the part of the Plaintiff it is insisted, that the war which was waged against us by Great-Britain was unjust. As a matter of fact this cannot be denied—the honour of every American is con­cerned in its establishment. Every patriot knows and feels it. Upon account of the injustice of the war, he renounced his allegiance and committed his fortune and his life to uncertain hazard. Upon account of the injustice of the war, Lord Chatham exclaimed in the British House of Peers that he rejoiced America had resisted.—Against the injustice of the war Lord Cambden and his compeers protested; and the great cities of England itself re­monstrated: And finally, on account of the injustice of the war, even the British House of Commons, in spite of the influence of the court, resolved against its further prosecution.—And it is not too presumptuous to think that upon account of its in­justice, all the astonishing efforts to subdue our coun­try were blasted by the hand of Heaven!

Loft's Rep. 79. 2 Vatt. 77. Grot. 698. [...] [...]1. n. 9.Upon this ground then the Plaintiff's counsel enforce her demand; by an un­just war, they affirm, the unjust party ac­quires [Page 30] no right; all the acts of that party, however otherwise allowable, imbibing the taint of the first in­justice,

1 Ruth. 33.That it is a maxim of the law of nations, that no right can be derived from an injury.

Cro. El. 540. mo. 461. Bull. 92.That this principle is consonant to the common law; for that wherever there has been a disseizen, and a recovery is had against the disseizer, or even an innocent purchaser, the disseizee shall recover the mesne profits; the first act being tortious no subsequent act could be otherwise.

3 Vat. 72. § 183, 187. 3 Gro. 167 8. § 3—4. 2 Ruth. 678. 2 Vatt. 10. § 26 28.They subjoin another proposition, "that by the law of nations the rights of war are only appropriated to war of the so­lemn kind;" and insist, that the annuncia­tion of hostilities in the late war, was not attended with the solemnities which the law of nati­ons requires.

To these observations and authori­ties the Defendant's counsel reply— That the obligation to make restitution of that which is acquired in an unjust war, rests in foro conscientiae, and is not external—that in the language of the law of nations every solemn war is a just war.3 Vatt. P. 72. § 183.187. 3 Gro. 167 8. § 3.4. 2 Ruth. 678. 2 Vatt. 10. § 26.28.That the late war was a solemn war: And that no conse­quence can be drawn from the injustice 2 Ruth. 508.510.564.579. 2 Hutch. 357. 1 H. P. C. 163 4. 2 Bu. l. P. 263. Cunn. Policies of Insurance 276. of the quarrel on the part of Great-Bri­tain—that the opinion of the antient Doctors, that the rights of war are on­ly appropriated to war of the solemn kind, is explod­ed by some of the most respectable modern authors, who attribute the same effects to all public wars: But that the war between us and Great-Britain was the most solemn that modern times have exhibited. [Page 31] This they infer from the act of the British Parlia­ment putting us out of the protection of the law; and the declaration of the independence of the Uni­ted States, which goes on the idea of an open war: and with respect to the formalities in the annuncia­tion of war they show that they are arbi­trary.Burl. 271. § 21.

Without entering into a minute examination of the reasons and authorities, by which the parties have attempted to maintain opinions so opposite to each other; we shall consider the subject in a more enlarged view.

It is a maxim founded in reason and humanity, that the restoration of peace, whatever may be the cause of a war, ought always to be in contemplation. Every impediment then, which might retard this blessing, ought to be discountenanced—every faci­lity which could promote it, encouraged; in pro­portion as the refinements of civilization enlighten­ed mankind, it was to be expected that the law of nations, fostered and cherished by philosophers, should become more benevolent, and more suitable to the dignity and happiness of man. Hence the doctrine, that the solemnity and justice of a war were essential in ascertaining the rights acquired as the effects of war, came to be exploded; because experience had fully proved, that it was productive of mischief. The shedding of human blood, and the ruin of families and countries could be but poor­ly compensated by the most humiliating concessions; while such is the influence of pride and ambition, that two nations, equally convinced that it is their duty and their interest to embrace an accommodati­on, often suffer the calamities of war to rage only [Page 32] from the fear of being degraded, by making the first advances towards peace. They wait for some splen­did victory, which may never happen, to have an opportunity of manifesting their superiority, and of opposing what is necessary to their affairs, as an act of generosity.

If then every treaty of peace was to be determin­ed only by the precise rules of justice: If it must ne­cessarily be acknowledged on one side, that the cause of the war was, on their part, unjust, or hostilities were commenced by them without those previ­ous solemnities which have once been deemed essen­tial; where is the nation which would confess their wantonness or injustice? or where the tribunal to whose arbitration they would submit their honour? It is therefore for the happiness of mankind; found­ed, in a manner, in necessity, that in a treaty of peace neither party should be condemned for, or be bound to acknowledge, precipitancy, or the want of solemnity, in certain formalities in the commence­ment of the war; and much less the injustice of their cause; and that the odium of all the blood which had been shed, was imputable to them. This would be to subscribe to an indelible disgrace, to which a sovereign power very seldom would consent, and ne­ver but in the last extremity. If then it is plain, that no acknowledgment of such a nature can be sti­pulated in a treaty, and there is no tribunal to judge between sovereign powers, all enquiry into the jus­tice or solemnity of a war must cease, and those facts be incapable of servings the basis of a precept—. in short, that they can be no otherwise material, than in foro conscientiae.—These observation are justified by the authority of Mr. Vattel; they are corroborated [Page 33] by the usage of nations; and in the particular question before us, govern our decision.—We con­clude therefore, that if there had been a want of solemnity, or the usual formalities in the commence­ment of the war—which we do not think is the case—and altho' as a matter of fact this war, both in its principle and progress, hath been marked with un­parralleled injustice and violence; none of these cir­cumstances are of any avail in the present case.3 Vatt. 110.

The next point which has been raised, is, Whe­ther the capture and occupancy of the city of New-York, is such a conquest as vested the British Com­mander with the disposal of the rents and profits of real property?

To maintain the negative of this question, the Plaintiff's counsel have recourse to the doctrine of Postliminium—which is that right, by virtue where­of, persons and things are restored to their former state; when coming again under the power of the nation to which they belong.

Vatt. 85.112.87.197.79.214.They cite opinions, that the acquisiti­ons of a town taken in war is not com­pleat till confirmed by a treaty of peace, or submis­sion, till then there are hopes of recovery.

Gro. 616.701. n. 22.That acquisitions of war are only of force against neutral persons; to give the conque­ror a right, it must be by peace, otherwise the right is supposed to continue in the old proprietor.

What I have observed, says Grotius, of lands, takes place also in my opinion in regard to all rights annexed to those lands. Upon this principle it must be said, that the profits of the land recovered are to be restored; and he refers to a formal decision of the civilian Pau­lus, in the point.

[Page 34]They add, that no usurpation putteth the party out of possession.

On the other hand the Defendant's counsel argue:

That the Romans and other nations of antiquity, used upon any conquest to make an immediate distrubtion even of the lands among them­selves: But that the refinements of more civi­lized ages have softened the rigour of this right,Vatt. B. 369. P. 62. § 165. so far as to leave individuals who remain with their property, unmolested, further than in making contribution.Gro. 6.3. C. 9. P. 612. § 1.2. Id. P. 622. § 13. But that the personal property of those who fly becomes a booty,

Gro. 2.3. c. 20. P. 721. § 22.To these general authorities which they quote are added two in point, viz.

2 Hutch. 36¼. Vatt. b. 4. c. 3. Gro. b. 3. c. 20. P. 701. § 22."To whom any thing is granted by the articles of peace, to him also are al-allowed all the profits from the time of the grant: but not before."

When lands are enclosed by for­tifications the effects of cap­ture take place.Again, "The products restored on a peace are due from the instant fixed for the execution. If there is no fixed time, they are due from the moment of restitu­tion of the things granted,3 Gro. C. 6. p. 583. § 4 Gro. 20 P. 699. n. 1. § 12. n. 2. Vatt. b. 4 c. 3. § 30. P. 123. but those which were collected before the conclusi­on of the peace are not to be delivered up: For the fruits belong to the proprietor of the stock; and here possession is accounted for law­ful title."

The two authorities quoted from Grotius, and on each side of the question, seem at the first view, to be repugnant; but on an attentive examination it will appear otherwise: In the first case he is speaking of profits of lands to be restored. He conceives, that [Page 35] the profits of such lands ought to be recovered on ac­count of the antecedent right of soil to which they were annexed.

But in the last case, he speaks of a new right, grant­ed by the articles of peace, which had no prior ex­istence, there he says the profits shall be allowed from the time of the grant, and not before. That this dis­tinction is just will appear from a view of the whole of the last authority:

To whom any thing is granted by articles of peace, to him are also all the profits allowed from the time of the grant but not before; then follows this passage which explains the sense of the author— "As Au­gustus Caesar well argued against Sextus Pompeius, who having Peleponnesus granted to him, would have also had all the tributes, which were in arrear for some years past before the time of that grant."

Thus Grotius is at unity with himself: But it is not in our power to reconcile him to Vattel. These authors differ in their opinions with respect to the restitution after peace, of the fruits collected by a captor during the war. Besides this, which is un­der consideration, there are several strong passages in Vattel, which corroborate the same doctrine; and it receives additional force from the authority of Burlamaqui and of Barbeyrac in his notes upon Grotius.

We are therefore of opinion, that restitution of the fruit, or in other words, the rents and issues of houses and lands, which have been bona fide, collect­ed by or under the authority of the British Com­mander, while he held possession of the city, can­not, according to the law of nations, be required.

The usufruct seems to be placed on the footing [Page 36] of any other contribution exacted by a conqueror in the course of a war; and the right of demanding contributions in such case, hath, we believe, never been questioned.—With respect to the products, which might be due on the conclusion of a peace, they must cease to be recoverable by the captor af­ter the restoration of the town, unless the treaty should provide for it by an express stipulation.

But this doctrine in its fullest extent will prove no effectual relief to the Defendant. As we have before observed the rights of the British General as the effect of a temporary conquest, could only be communicated by his immediate authority; the agen­cy of the Commissary General in disposing of those rights, was an act of usurpation; and it is not pre­tended that meerly as British merchants and British subjects, either the Defendant or his employers had any claim or interest in the usufruct.

The Defendant therefore, upon the most liberal construction of the law of nations, remains charge­able to the Plaintiff in this action.

We proceed therefore to the third general head, to enquire—

Vatt. B. 4. c. 2. P. 120.121 § 18 to 21 Grot. B. 3. c. 20. P. 699 and Barbeyrac's Note. Burla. p. 253, § 7—1—3.IIIdly, Whether there is such an am­nesty included or implied in the de­finitive treaty of peace, as virtually or effectually relinquishes or releases the Plaintiff's demand?

And here the Defendant's counsel insist, that every treaty of peace implies an amnesty and oblivion of damages and injuries in the war; and rely on the authority of Grotius, Barbeyrac, Barlemaqui and V [...]tel in support of the proposition.

A treaty of peace can be no more than an agree­ment. [Page 37] The effect of it is to put an end to the war, and to abolish the subject of it: as it forbids the revival of the same war, by taking up arms for the cause which first enkindled it, it is in reality perpetual.

An amnesty is a perfect oblivion of what is past, and the end of peace being to extinguish all subjects of discord, this should be the leading article of the treaty. This accordingly, says Vattel, at present is the constant rule.

But tho' the treaty, he adds, should be wholly si­lent on this head, the amnesty, by the very nature of the peace, is necessarily implied in it.

In another passage, he observes, that the effect of the amnesty, cannot be extended to things of no relati­on to the war concluded by the treaty.

These principles are well established by the law of nations; and they are even admitted by the coun­sel for the Plaintiff.

But it is objected, on their part, that the occu­pation of the tenements in question by the Defend­ant, had no relation to the war; and that therefore the amnesty cannot acquit him.

This objection has been fully considered; and we have given an opinion that the term for which the tenements were held by the permission of the Com­missary General can, on no construction, have a re­lation to the war:

The amnesty implied in the treaty cannot there­fore justify the Defendant; for all the authorities prove, that it can be only extended to things done in re­lation to the war.

The parties have indeed joined their issues upon other points, upon which, if the cause had entirely rested, judgment ought to have been given.

[Page 38] ‘But it is a known rule, that if upon the whole record, matter in law appear why judgment should be given against one party, the court must judge so, for it is the office of the court to judge the law upon the whole record, and the consent of parties cannot prejudice their opinions, nor acquit them of their office in that point.Hob. 56.’

It has been further objected, that Congress could form no treaty of peace to reach our internal police.

There is a great distinction between the authority of the treaty; and its operation and effects.

The first we hold to be sacred and shall never, as far as we have power, suffer it to be violated or ques­tioned.

It is the great charter of America—it has formal­ly and forever released us from foreign domination— It has confirmed our sovereignty and independence; and ascertained our extensive limits.

Our union as has been properly observed, is known and legalized in our constitution; and adopt­ed as a fundamental law in the first act of our legis­lature. The foederal compact hath vested Congress with full and exclusive powers to make peace and war. This treaty they have made and ratified, and rendered its obligation perpetual.

And we are clearly of opinion, that no state in this union can alter or abridge, in a single point, the foederal articles or the treaty:

But the operation and effects of the treaty, within our own state, are fit subjects of enquiry and deci­sion: According to its spirit and true meaning we must determine our judgment: Nor shall any man, by any act of ours, be deprived of the benefits which, on a fair and reasonable construction, he ought to derive from it.

[Page 39]On this occasion, we say with the sage—fiat justitia ruat coelum.

We cannot, it is urged by the Defendant's coun­sel, impose a sense upon the treaty different from that which it intrinsically bears. "The rules re­ceived among nations must interpret treaties."

This is an unnecessary observation: No dispute hath arisen respecting the intrinsic sense of the treaty: The Plaintiff's counsel repeatedly insisted that the article of the treaty which respected an indemnity related to public offences —the Defendant's counsel in answer frankly confessed, that though that article was mentioned by one of them, it was not relied on. That they rested on two things; one, the right which the law of nations gives the captors; the other the amnesty included essentially in every treaty, whether expressed or not, agreeably to the current of autho­rities, and the reason of the thing.

It is then an implied and not an express amnesty, on which the Defendant relies; an amnesty which necessarily results from every treaty of peace—And thus, the intrinsic sense of the treaty and the rules for its interpretation are out of the question.

We have in some measure anticipated another question, which was much debated at the hearing—

Whether the courts of justice ought to be govern­ed by the statute, where it clearly militated against the law of nations.

Here it is material to observe that the description of persons, who are subject to be sued by this statute is general; extending to all who had occupied or in­jured the real or personal estate of the exiles, with­in the power of the enemy.

The counsel for the Defendant, by stating a num­ber [Page 40] of pointed cases, shewed clearly, from the nature of things, that the statute must admit of exceptions. Mr. Attorney-General, one of the counsel for the Plaintiff, who argued the cause very ably, admitted that many cases may be out of the statute, tho' the Plaintiff's is not of the number.

Thus then, it seems to be agreed, on both sides, that the provision in the statute, being general, can­not extend to all cases: and must therefore receive a reasonable interpretation according to the intention; and not according to the lattitude of expression of the le­gislature: It follows as a necessary consequence, that the interpretation is the province of the court, and, however difficult the task, that we are bound to perform it.

Hob. 346The authorities which have been cited on the part of the Defend­ant, not only establish this gene­ral principle; but bring forward a number of judicial decisions, wherein the courts of justice have exercised that power.Plowd. 109. Show. 455. Vin. Tit. statute, P. 514. n. 27, 30, 31, Ibid 524. n. 119 128. Ibid 528. n. 154. n. 156 1 Stat. 506. 4 Bur. 250. 1. Blac. Rep. 602. 10 Mod. 245.

On the other side, the uncon­troulable power of the legisla­ture, and the sanctity of its laws, have been earnestly pressed by the counsel for the Plaintiff; and a great number of authorities have been quoted to establish an opinion, that the courts of justice, is no case ought to execise a discretion in the construction of a statute.1 Inst. 36, 6. Co. Lit. 24, 6, 290. Vin. Vel. 19. P. 514. n. 22, 24, 25. 4 Bac. 639. 12 Mod. 688. 4 Bac. 651, 3 Rep. 7. 4 Bac. 647. Plowd. 205. Plowd. 205. 11 Rep. 73. 19 Vin. 519. n. 91 464 11 Mod. 161. 1 Black. 91. 4 Bac. 52. 10 Mod. 344. 19 Vin. 520. Hob. 298. Cart. 36. Vaugh. 179.

However contradictory these authorities may ap­pear to superficial observers; they are not only ca­pable [Page 41] of being reconciled; but the result of the whole will appear to be wise, suited to human im­perfection and easily explained.

The supremacy of the Legislature need not be called into question; if they think fit positively to enact a law, there is no power which can controul them. When the main object of such a law is clearly ex­pressed, and the intention manifest, the Judges are not at liberty, altho' it appears to them to be unrea­sonable, to reject it: for this were to set the judicial above the legislative, which would be subversive of all government.

But when a law is expressed in general words, and some collateral matter, which happens to arise from those general words is unreasonable, there the Judges are in decency to conclude, that the consequences were not foreseen by the Legislature; and therefore they are at liberty to expound the statute by equity, and only quoad hoc to disregard it.

When the judicial make these distinctions, they do not controul the Legislature; they endeavour to give their intention it's proper effect.

This is the substance of the authorities, on a comprehensive view of the subject; this is the lan­guage of Blackstone in his celebrated commentaries, and this is the practice of the courts of justice, from which we have copied our jurisprudence, as well as the models of our own internal judicatories. To apply these general remarks to the particular case under our consideration—The American prisoners of war, in the power of the enemy, were quartered in the houses of the exiles: they in fact occupied those houses by a military order or command, and are inclu­ded within the general description of the statute, [Page 42] which according to the letter, extends to all persons without any exception, who have so occupied or in­jured such houses. But can we force ourselves to believe, that the Legislature could have been so un­just and oppressive, as to add to the sufferings of the patriot soldier, consigned after fighting the battles of his country, to a long captivity by making him pay for the fetters, which he had worn in the service of his country, or for want of means, to undergo a second loss of liberty?

That the legislative, judicial and executive pow­ers of government should be independent of each other, is essential to liberty.

This principle entered deeply into our excellent constitution, and was one of the inducements to the establishment of the Council of Revision, that the judicial and executive of whom it is composed, might have the means of guarding their respective rights, against the encroachments of the Ligislature, whe­ther by design, "or by haste or unadvisedness." For this and other purposes, all bills, which have passed the Senate and Assembly, before they become laws, are to be presented to the Council for their revisal and consideration; that if it should appear impro­per to them, that any bill should become a law, it may be returned with their objections for further consideration, and become subject to the approbati­on of two-thirds of the members of each house, be­fore it can be a law.

From this passage of our constitution, Mr. Attor­ney seems to regard this determination of the Coun­cil of Revision on the law in question, in the light of a judicial decision; by which this court ought to be guided, for the sake of uniformity in the dispensa­tion [Page 43] of justice. But surely the respect, which we owe to this honourable Council, ought not to carry us such lengths; it is not to be supposed, that their assentor objection to a bill, can have the force of an adjudication: for what in such a case, would be the fate of a law, which prevailed against their senti­ments? Besides in the hurry of a session, and espe­cially slagrante bello, they have neither leisure nor means, to weigh the extent and consequences of a law, whose provisions are general, at least not with that accuracy and solemnity, which must be necessa­ry to [...]ender their reasons incontrovertible, and their opinions absolute. The institution of this Council is sufficiently useful and salutary, without ascribing to their proceedings, effects so extraordinary; nor is it probable, that the high judicial powers them­selves, would in the seat of judgment always be pre­cluded, even by their own opinion given in the Council of Revision;—for instance, if they had con­sented to a bill, general in its provision, and in the ad­ministration of justice they discovered, that accor­ding to the letter, it comprehended cases, which rendered its operation unseasonable, mischievous and con­trary to the intention of the Legislature, would they not give relief? surely it cannot be questioned.

Upon the whole, this being a statute is obligato­ry, and being general in its provisions, collateral matter arises out of the general words, which hap­pens to be unseasonable. The Court is therefore bound to conclude, that such a consequence was not foreseen by the Legislature, to explain it by e­quity, and to disregard it in that point only, where it would operate thus unseasonably.

The questions then, whether this statute hath [...] [Page 44] any respect revoked the law of nations, or is repeal­ed by the definitive treaty of peace, are foreign to the circumstances of the case: neither will happen, nor ought to be apprehended.

There is not a tittle in the treaty, to which the statute is repugnant. The amnesty is constructive, and made out by reasoning from the law of nations to the treaty.

The repeal of the law of nations, or any inter­ference with it, could not have been in contempla­tion, in our opinion, when the Legislature passed this statute; and we think ourselves bound to ex­empt that law from its operation: First, because there is no mention of the law of nations, nor the most remote allusion to it, throughout the whole statute: Secondly, because it is a subject of the high­est national concern and of too much moment to have been intended to be struck at in silence; and to be controuled implicatively under the generality of the terms of the provision: Thirdly, because the provisi­on itself is so indefinite, that without any controul, it would operate in other cases unreasonably, to the oppression of the innocent, and contrary to humanity; when it is a known maxim ‘that a statute ought to be so construed, that no man who is innocent be punished or endamaged:’ Fourthly, be­cause the statute under our consideration, doth not contain even the common non obstante clause, tho' it is so frequent in our statute book—"And it is an esta­blished maxim, where two laws are seemingly repug­nant, and there be no clause of non obstante in the latter, they shall, if possible, have such construction, [...] the latter may not repeal the former by implica­tion:" Fifthly, because altho' it is a true rule, that [Page 45] posteriores leges prioribus derogant, to use the language of Sir Thomas Powis, in the Dutchess of Hamil­ton's case,—at the same time it must be remembered, that repeals by implication are disfavoured by law, and never allowed of but where the inconsistency and repugnancy are plain, glaring and unavoidable: for these repeals carry along with them a tacit reflection up­on the Legislature, that they should ignorantly, and without knowing it, make one act repugnant to and inconsistent with another: and such repeals have ever been interpreted so as to repeal as little of the precedent law as possible.10 Mod. 118.

Dyer 348, at the bottom. Hard. 344.The Plaintiff's counsel, who them­selves argued in favour of this last propo­sition, adduced several authorities to support it.

Whoever then is clearly exempted from the opera­tion of this statute by the law of nations, this Court must take it for granted, could never have been in­tended to be comprehended within it by the Legisla­ture.

It is asked by the Defendant's counsel, whether if a person within the power of the enemy, had been ordered by them on pain of death, to injure or destroy the property of an exile, he could have been sued under this statute, for obeying such order? The an­swer is obvious—if he did the injury under coertion, and for the preservation of his life, the duress on eve­ry principle of law and reason, ought to work out his justification;—for no one can conceive that the statute, comprehensive as it is in the provision, could have been intended to be applied to such a case of extreme and fatal necessity.

Again it is asked, whether vessels condemned here in the [...], can be recovered under this [Page 46] statute. Whether the British Generals, Howe and Clinton can be prosecuted under it for damages which they have committed on the property of the exiles, in relation to the war? The principles, which we have lain down, clearly shew that such vessels cannot be recovered: That those Generals cannot be sued; because these are all acts done in relation to the war, which according to the law of nations, are virtually and effectual buried in oblivion by the definitive treaty: every such treaty in its very nature imply­ing a general amnesty.

We have gone further perhaps into many impor­tant subjects, which have been brought into view by this controversy, than was strictly necessary; but it is time that the law of nations and the nature and effects of treaties should be understood: And in the infancy of our republic, every proper opportunity should be embraced to inculcate a sense of national obligation, and a reverence for institutions, on which the tranquility of mankind, considered as members of different states and communities so essentially de­pends.

Besides the maxim interest reipublicae ut sit finis litium, never applied more forcibly, than it now doth to us in our present circumstances; and it is hoped by be­ing thus explicit, we may ease the minds of a mul­titude of suitors, whose causes are depending here under this statute—at all events we shall relieve this Court from an unusual weight of judicial ex­amination, which a want of time [...]enders incompa­tible with our other public and indispensable duties.

Upon the whole, it is the opinion of this Court, that the plea of the Defendant as to the occupancy of the Plaintiff's brew-house and malt-house, be­tween [Page 47] the 28th day of September, 1778, and the last day of April, 1780; and the last plea of the Defendant as to the whole of the trespass, charged in the Plaintiff's declaration are insufficient in the law; and that only the plea of the Defendant in justification of the occupancy between the last day of April 1780, and the 17th day of March 1783, is good and sufficient in the law.—

Let Judgment be entered accordingly.