THE CLAIM. TO THE COMMISSIONERS For carrying into effect the Sixth Article of the Treaty of Amity, Commerce and Navigation, concluded between his Britannic Majesty and the United States of America, the Nineteenth day of November, 1794,

THE MEMORIAL of William Cunningham, Pe­ter Murdoch, James Robison, and John Hamil­ton, Junior, surviving partners of Andrew Coch­rane, William Cunningham, Robert Bogle, John Murdoch, Peter Murdoch, James Robison, Wil­liam Henderson, William Reid, and John Hamil­ton, Junior, RESPECTFULLY SHEWETH,

THAT the said Andrew Cochran, William Cunningham, Robert Bogle, John Murdoch, Pe­ter Murdoch, James Robison, William Henderson, William Reid and John Hamilton, junior, were subjects of his Britannic Majesty carrying on business under the firm of William Cunningham and com­pany, and that the said William Cunningham, Peter [Page 4] Murdoch, James Robison and John Hamilton, jun­ior, are the survivors of the said firm.

Your memorialists further beg leave to shew, that for many years previous to the fourth day of July one thousand seven hundred and seventy-six, they carried on extensive business as merchants in the then colony, now state of Virginia, and had estab­lished several considerable stores in that country un­der the management and direction of different fact­ors and agents, among others the store called Wil­liam Cunningham and company's Brunswick Store, the accounts of which will be herein after more par­ticularly mentioned.

Your memorialists further beg leave to state and shew, that from the earliest settlement of Virginia, the inhabitants, having very little circulating cash among them, had no means of procuring necessaries from Europe but by the crops they annually made—hence arose a practice of obtaining goods upon credit un­til their crops were reaped, and as the articles taken up at any one time were generally small in value and quantity, being chiefly occasional supplies for their families, it was never thought necessary to procure evidence of the facts, the most perfect and deserved­ly well grounded confidence, was placed by the planter in the books of the merchant; but in pro­cess of time, as the inhabitants became much more numerous, debtors sometimes disputed the accounts, which threatened destruction to that confidence which had hitherto subsisted between the merchants and the planter, and which was essential to the con­venience of the inhabitants. This induced the le­gislature [Page 5] of Virginia in the year 1748 to pass the act intituled "An act prescribing the method of prov­ing book debts"—a copy of which act is laid before the board.

After the passage of this law the course of trade continued upon the ancient footing, the decisions of the courts were equitable, and the practice of the bar liberal—a mutual confidence existed between the merchant and the planter, and in the public o­pinion few evidences were more respected than a merchant's books. From this temper and disposi­tion of the parties, and the security which the law and the practices of the country afforded the credit­or, suits were seldom brought unless the delay of payment was unconscionable or the debtor declining in his circumstances, in which cases they were brought not to authenticate the debt, for that was considered as established without, but merely to in­force payment of the money. The revolution and its consequent regulations, came therefor on your memorialists by surprize; but even if it had been foreseen, it was not in their power to compel pay­ment after the twelfth day of April 1774, as the costs of suit in Virginia were regulated by a tempora­ry law called the Fee Bill, which expired on that day and was not revived again until other impedi­ments hereafter to be mentioned began to exist. In this situation were things when a law was passed which obliged the creditors, their factors and agents to leave the country.

Your memorialists further beg leave to shew, that on the 4th day of October 1779, an act was passed [Page 6] in Virginia, intituled "An act for discouraging ex­tensive credits, and repealing the act prescribing the method of proving book debts"—a copy of which is also before the board. By the operations of this act and the decisions under it, those hopes which your memorialists had entertained, that on a return of peace they would have been permitted to prove their debts according to the existing mode at the time they were contracted, were entirely blasted —for their books being no longer admitted as proof of the debt, and the factors, agents and store-keep­ers who might in some cases have proved them, be­ing driven out of the state, dead, or dispersed into different parts of the world, your memorialists, in all cases of this description are without redress in the courts of the state.

Your memorialists having made these few prelim­inaries, and in their opinion necessary observations, beg leave further to shew that prior to the fourth day of July 1776, they had established (among o­thers) a store at [...] in Virginia under the care, superintendance and direction of Mr. Alexan­der Hosburgh, which went by the name of their Brunswick Store; and that at the time your memo­rialists said factor was obliged to leave Virginia there was justly and bona fide due and owing to them from divers citizens of Virginia, [...] the sum of thirteen hund­red and twenty-nine pounds thirteen shillings and two pence three farthings Virginia currency, equal to [...] sterling money of Great Britain principal sum, a true and accurate statement of which with the names of the several debtors and [Page 7] the dates, nature and amount of the several debts and the interest accrued thereon are annexed to this memorial on the several papers marked A, B, C, D, E, which your memorialists pray, may be received taken and considered as part of this memorial and claim, and the several original notes, bills, orders and bonds, together with the accounts of the said store are ready to be produced before your board when and where you shall be pleased to direct.

Your Memorialists further beg leave to shew that each, every and all of the debts stated on the seve­ral papers marked as above, and forming part of this memorial, remained due and unpaid to your me­morialists and their factor, at the time of their fac­tor's leaving Virginia in obedience and conformity to the law before mentioned, And that no part or parts of the said debts and demands, or any of them, have since been recovered or received by your Me­morialists, or by any other person or persons to their use, but that each, every and all of them, still re­main due and unpaid.

Your Memorialists further beg leave to shew, that from a short time after the definitive treaty of peace between Great-Britain and the United States, they have had an Agent in Virginia, and yet have, fully authorized and empowered to collect and give ac­quittances for the debts due to them, but all the en­deavors of their said Agents were without effect, owing as well to the Impediments before stated as to others herein after mentioned. In fact your me­morialists assert, that notwithstanding the provision [Page 8] contained in the 4th article of the said treaty of peace, no judgment was or could be obtained in Virginia, at the suit of a British subject, for a debt due before the war, where a plea of British debts was put in and supported, until after the commence­ment of the year 1793, which year the first judg­ment was rendered, and the decisions in many of the districts and county courts were not effected sooner than between two and three years afterwards.

The legal impediments which existed in Virginia since the peace, preventing the recovery of British Debts, are to be found in the following Acts of As­sembly, in addition to those abovementioned, copies of which, in the following order, are before the Board.

October 20, 1777.An Act for sequestering British property, enabling those in­debted to British subjects to pay off such debts, and direct­ing the proceedings in suits where such subjects are parties.
May 1780.The paper money being depre­ciated to so great a degree as to be worth scarcely any thing; so much of the above Act as authorized payment of it into the Treasury, was suspended— but by the Act of
May 1782,The suspended clause was again revived.

The operation and effects of the foregoing acts are too obvious to require comments.

[Page 9]The next act of the Legislature of Virginia which operated as an impediment, is the law of

November1781, entitled ‘An Act direct­ing the mode of adjusting and settling the payment of certain debts and contracts, and for other purposes.’

This act is more generally known by the name of the Depreciation Law, and operates as an impedi­ment in the following manner. The debts due to your Memorialist [...] were contracted before any De­preciation was known, but in many instances the Bonds were not taken for the said debts until after the period at which this retrospective law has fixed the commencement of the scale of depreciation. The bonds are taken for current money of Virginia; and as the courts of law refuse to admit parol proof to alter the purport of what is under seal, these bonds are determined to have been taken for the money current at the date, and to be reduced accordingly.

Your Memorialists deem it unnecessary herein par­ticularly to state each and every Act of the Legisla­ture of Virginia which created impediments to the recovery of their just demands; they will only add, that when the Assembly of that State on the 12th December 1787, passed ‘an Act to repeal so much of all and every Act or Acts of Assembly as pro­hibits the recovery of British Debts.’ They ad­ded—

Sect. 2. Pro [...]ided, that this act shall be suspend­ed until the Governor, with the advice of Coun­cil, [Page 10] shall, by his Proclamation, notify to this State that Great-Britain hath delivered up to the United States the posts therein now occu­pied by British troops, which posts were stipu­lated to be given up to Congress immediately after the conclusion of peace, and is also taking measures for the further fulfilments of the said treaty by delivering up the negroes belonging to the citizens of this State, taken away contra­ry to the seventh article of the treaty, or by making such compensation for them as shall be satisfactory to Congress.’

Your Memorialists further shew, that by means of the impediments aforesaid, no suits whatever could be maintained for debts due before the peace, in Virginia, to British subjects, until after the adop­tion of the present Constitution of the United States—That even since the adoption of the said Constitution, no debt can be recovered where your Memorialists Store Books are the only evidence to support the demand, and in many instances of pro­missory notes and signed settlements acknowledging the balance, the Act of Limitations has barred re­covery.

That in suits upon obligations under seal, bearing interest, the juries in all cases deduct at least eight years interest, in many cases they barely allow the principal, and in others allow interest only from the impetration of the writ—That during the continu­ance of the impediments aforesaid, many of your Memorialists' debtors have absconded or become in­solvent, and from those yet reputed solvent, and [Page 11] whose debts are evidenced by bonds or notes, your Memorialists cannot now actually have and receive the full value thereof in the ordinary course of judi­cial proceedings, as well owing to the deduction of interest as aforesaid as to this further impediment, to wit, that at the time the said debts were severally contracted the difference between sterling money of Great-Britain and the currency of Virginia was only 25 per cent, whereas by laws passed since, there is now a difference of 331/3; per cent.—

Your memorialists therefore pray that this their claim may be received to the amount of the several sums of money principal and interest stated in the several schedules annexed to and forming part of this memorial, in which they have arranged the se­veral debtors to their Brunswick store, under the following classes.—

  • A. Debtors upon open accounts in the store books of your Memorialists' Brunswick store—No re­covery could at any period since the peace be had upon any of these demands.
  • B. Debtors who have become insolvent during the legal impediments, whose debts are evidenced by bond &c.—
  • C. Debtors whose debts are evidenced by bond &c. whose estates have been, and yet are reputed solvent, and from whom it is probable a recove­ry may be had, except interest and the difference between the currency at the present time and when the debt was contracted, but the amount [Page 12] which may be recovered, or the loss which may be sustained whether by deductions or insolven­cies may not be ascertained until after the time limited for receiving claims shall expire.—
  • D. Debtors who have deceased and their property divided or squandered, or who have removed during the existence of legal impediments, and whose present residence and circumstances are unknown.
  • E. Losses sustained by deductions of interest and the difference between the Currency of Virginia at the time certain debts were contracted, and the time they were paid.

Your Memorialists hold themselves ready at all times to execute such releases and such assignments of the said debts as shall be awarded and directed by the Board, in order that the United States on com­pensation made, may not only be released from the claim of your Memorialists, but may be enabled to recover from such of their debtors as yet remain sol­vent. But if your Board shall think it consistent with equity and justice, after the delays, losses and expen­ses already incurred, that the Agents of your Me­morialists should still longer be detained in the prose­cuting the said debtors yet remaining solvent, your Memorialists pray that a partial award may be made upon the whole of this claim, excepting the debts on sheet C, together with such further allowances as justice and equity shall require.

A A LIST of DEBTS due William Cunningham & Co. on the Books of their Store in Brunswick County, Virginia, which cannot be recovered in the Courts in Virginia.
Debtors' Names & Residence.Character.How constituted.Time of InterestInt. to Jan. 1, 1798.
Names.ResidenceDoubtfulGood.VoucherWhen due.Y. M.Pr. An.on doubtf.On Good.
James Bal [...]ourBrunswick 4 9 5Account1773. Nov. 224 14s5 1-2 5 7 7½
William Burnes 6  May 21.24 73d 6-107 4½ 
Joseph Bennett 1 5 4  May 5.24 71s3 2-101 11 1½ 
Gray BriggsDinwiddie 18 3 Feb. 22.24 1010 2-10 1 2 7¼
John CowlesAmelia 2 [...] ¼ Aug. 6.24 422s 26 15 4¼
John Dugger, jun.Surry 22 18 9 1772, Dec. 21.25 [...] s11¼ 28 13 5¼
James FisherBrunswick 4 7 1773, April 13.24 82d 7-10 5 7½
Lawr Gibbons, jun  2 10 4 1774, Aug. 1.13 52s6 2-10 2 18 11
Philip George  9 15 10 1775, Sept. 29.22 39s9 5-10 10 17 10¼
Ambrose Harwell  3 12 3 1772, Sept. 23.25 33s7 7-10 4 11 2½
Lewis Hicks  1 3 10 1773, Sept. 7.24 21s [...] 3-10 1 8 9½
James Harwell  7 [...]½ 1773, Jan. 28.24 114d 2-10 8 10¾
Henry HancockSurry14 9  1773, Mar. 29.24 98d 3-1018 3 
James JonesBrunswick1 6 2  1774, April 1.23 4 [...] s3 7-101 11 0¾ 
Michael J [...]nesDinwiddie 2 6 10¾ Sept. 1.23 42s4 1-10 2 14 8¾
Benjamin Lani [...]rBrunswick 29 18 9½  23 429s5 2-10 34 6 10¾
Joel Mab [...]y  3 3 1½  23 43s1 8-10 3 19 7½
Henry Morris  26 5 1773, Sept. 29.24 326s3 31 16 6¾
John MarshallN. Car. 15 3 July 9.24 59d 1-10 18 7¼
William NicksBrunswick4 6 4  July 14.24 54s3 8-105 4 1¾ 
Robert Nicolson  29 14 6 May 29.24 729s8 7-10 36 10 8¾
Augustine Pittillo 14  Oct 7.24 28d 4-1016 11 
Jesse Peeples, jun.  9 15 7¼ 1775, Mar. 1.22 109s9 3 10 11 2 6
William PoolDi [...]widdie1 5 8¼  1772, Jan. 1.261s3 4-101 13 4½ 
Edm. Stith's EstateBrunswick 4 4 4½ 1773. July 21.24 54s2 6-10 5 5 5½
Bethia S [...]sson  13 6 1772, Aug. 2425 48d 1-10 27 1
Littleberry Stanback  1 11 July 20.25 51d 1-10 2 5
David Simms  1 2 1774, Sept. 1.23 47-10 1 4¼
Col. William Stith  2 10 5 1772, June 2.25 62s6 1-4 3 4 3¼
Sheriff of Brunswick  9 4 9 1775, Sept. 1.22 49s [...] 8-10 10 6 3½
Paul Tatum  1 6 10 July 1.22 61s4 1-10 1 10 8¼
China Tatum  7 2 3½ Jan. 18.22 117s1 3-10 8 0 3¼
Henry Taz [...]well   [...] 8 Jan. 2522 112d 2-10 4 2½
George Wall  6 1 4 1773, July 2.24 56s 8-10 7 8 1½
Avris Wi [...]nson  1 4 1 1774, July 9.23 51s2 4-10 1 8 3¼
Edmund Wilkins  5 5 8¼ 1773. June 17.24 65s3 4-10 6 9 5½
  9 18 [...]½207 9 7½    12 2 3249 0 7½
B. A LIST of DEBTS due on Bond, &c. to William Cunningham & Co. at the foregoing Store, from persons whose Estates are now insolvent.
Doctors' Names & ResidenceCharactersHow constitutedTime of InterestInt. to Jan 1, 1798.
Names.ResidencedoubtfulGood.VoucherWhen due.Y. MPer Anon doubtfulon good.
William ColeyBrunswick  [...] 11 2Bond1774, Jan. 22.23 112s6 7-10 3 1 2¼
Randall DanielDinwiddie7 14 4½  1773, April [...].24 97s8 6-109 11 0¼ 
William ParsonsBrunswick 6 15 3½ Nov. 4.24 16s9 1-10 8 2 21
Michael WallSussex 14 13 1Judgmt.1774, Feb. 1.23 1114s7 2-10 17 10 5
Edward WalkerDinwiddie 55 12Bond1774, Oct 2523 255s7 3-10 64 8 0¾
  7 14 4½79 11 6½    9 11 0¼93 2 7½


C LIST of DEBTS due upon Bond, &c. to William Cunningham & Co. at the forgoing Store, from persons whose estates are reputed to be solvent, and from whom a recovery may probably be had, except interest during the War.
Names and Residence.Characters.How Constituted.Time of Interest.Int. to Jan. 1, 1798. 
Names.ResidenceDoubtful.Good.VoucherWhen Due.Y. Mper. annumon doubtf.on good
John ButtsBrunswick 29 19 0Bond1773, June 12.24 529s11 4-10 36 13 9¼Suit in Bunswick District Court.
Martin BakerHalifax37 18 7¼  1776, Sept. [...].21 4 [...] s [...]40 9 1 [...]  
John CollierBrunswick 9 9 [...] 1774, March 2823 99s [...] 4 10 11 4 5 [...]Suit in Brunswick County Court.
Lewis Charles  117 19 8 1773, Jan. 1. [...]5117s11 3-10 117 9 7Deceased, Lewis Charles, executor
Eldridge Cleck  6 6 6 Oct [...]621 26s3 9-10 7 12 11 
Daniel Fisher  3 10 3Account1775, Oct. 18.22 25s [...] 2-10 6 2 3 
William Goodrum  18 1 2Bond1774. June 2923 618s 7-10 21 4 4 [...]Suit in Brunswick District Court.
Charles Harrison  25 15 3Account1775, Sept. 122 3 [...]6s9 1-10 28 13 2 [...] 
Stephen Kirkland 26 4 8 [...] Bond1773, Oct. 2524 [...] [...]6s [...] 8-1031 14  
Robert Kennon  4 18 8Note1773 Oct. 1324 24s11 2-10 5 19 2½ 
William Lanier  125 0 2Bond1775. Jan. 2522 1112 [...] s 1-10 143 4 9¼Suit in Brunswick District Court.
Nicholas S. Lanier  1 15 2 1773 Nov. 1524 11s9 1-10 2 2 4 
Evans Mabry  6 9 1 1774. Sept. 1.23 46s [...] 4 10 7 10 7 [...] 
Isaac & I. Marshall  30 12 11 1773, July 2624 [...]3 [...] s [...] 7-10 37 8 3Suit in Brunswick District Court:
Henry Roll [...]  11 14 5 Sept. 124 41 [...] s8 6- [...]0 14 5 2¼Suit in Brunswick County Court.
Edward Saunders  2 19 8 Oct. 3.24 2 [...] s1 8-10 3 12 1¼ 
Jones Williams  6 8 4 Sept. 1514 36s [...] 7 15 7¼Deceased, John Smithy admin' [...]·
William Walker  34 7 4 [...] May 2 [...].24 734 [...] 4-10 4 [...] 4 10 
Isham House  11 9 1 Oct. 3024 21 [...] s [...] 4-10 13 6 9½ 
  64 3 3½448 15 [...]    7 [...] 3 [...]536 10 3 [...] 
D LIST of DEBTS due upon Bonds, &c. to William Cunningham & Co. at the foregoing Store, from persons who are dead, and their property divided or squandered; or whose residence and circumstances are not known.
Names and former Residence.Characters.Voucher and when Due.Time of InterestInt. to Jan. 1, 1798. 
Names.Form. resid.Doubtful.Good.VoucherWhen Due.Y. M.per. annum.on doubtf.on good. 
Lewis Brown, junr.Brunswick, 5 8 4Bond1773, Nov. 16.24 15s4 9-1 [...] 5 10 0¼ 
William Brown  25 16 0 Nov. 22.24 12 [...] s9 6 10 31 1 4Removed.
Samuel Bagley 2 1 6¼  May 22.24 72s 9-102 11 0¼ Removed.
William Brent  56 10 2 Dec. 25.2456s6 7-10 67 16 2¼Removed.
Benjamin Chapman 22 17 7½ Judgment177 [...], Dec. 1.25 122s10 5 1028 13 11 Removed.
Britain Clayton  6 14 2 [...]BondNov. 15.25 16s8 1-2 8 8 3½Removed.
Joseph Carter  16 1 7Note1772, Nov. 4.25 116s1 2 [...] 3 3Removed.
John Carlos, senior  15 5 9Bond1774, Nov. 22.23 115s3 4 10 17 12 10½Dead.
Mother Ca [...]l [...]s  16 1 2 1772, Sept. 1.2 [...] 416s 7-10 20 6 9½Dead.
Peter Harwell  13 8 11 [...]Judgment1775, Sept. 1.22 [...]1 [...] s11 4-10 15 10 4 [...]Removed.
Peter Green  5 7 5Bond1774, June 29.23 65s [...] 4-1 6 6 2 [...]Removed.
Frederick Harwell  3 12 8Note1773, Oct. 25.24 2 [...] s7 6-10 4 7 10 [...]Removed.
Samuel Harwell  125 6 6Bond1775, Oct. 25.22 212 [...] s [...] 9-10 138 18 01/ [...]Removed.
Seany Harrison  11 7 10 1773, Nov. 5.24 111s4 7-8 13 14 4 
Mark HighDinwiddie, 2 3 5 1777, Oct. 2222 12s2 2 8 1 [...]Removed.
Clement Hartley  7 6 9 [...] 177 [...]. Nov. [...].24 1 [...] s4 8 16 9 
Thomas JohnstonBrunswick, 12 10 7 [...] 1774, Nov. 28.23 112s6 [...]-10 14 9 2Removed.
John Russ  [...]0 17 10  1773, Oct. 2 [...].24 2 [...] s10 7- [...] [...]1 9 10 Removed.
Charles Smith  21 1 10 Sept. 1024 321s1 1-1 25 11 5 [...]Removed.
Isaac Withers  11 2 [...] 1773, Oct. 2324 20s6 7 1 13 6 
Burgess Wall  90 18 8 [...]Judgment1773, April. 4.24 890s11 2 1 [...] 112 3 1Removed.
  75 16 11 [...]436 3 [...]    92 14 9 [...]513 17 8 [...] 


E. LIST OF LOSSES sustained by William Cunningham & Co. by Deduction of Interest during the w [...], upon Debts due at the foregoing Store.
Vouchers.Orig. Debt.When due.Debtors' Names.Int. to the time of paymt. [...]m of P. & IPayment.Loss of Int.
Bond5 1 71775, Jan. 25.Margaret Bruce1796, June 3.5 8 210 9 98 13 81 16 1
 9 15 61773, Oct. 2.Thomas ShortJune 3.11 1 6½20 17 016 18 10½3 18 2
 8 14 21773, Oct.John ClaytonJune 12.7 18 116 12 313 2 73 9 8
Account41773, Nov. 1.Thomas StithDec. 2.4 10½8 1044 10½
Bond10 141775, Jan. 25.Edward Goodrich 11 14 1½22 8 1 [...]18 2 7 [...]4 5 6
 15 2 21773, Oct. 30.William Short1797, June 30.17 13 10 [...]32 16 026 3 2 [...]5 12 10
Bond6 2 11Nov. 16.Lewis Brown1795. Jan. 26.6 2 1112 5 1010 3 22 2 8
 32 6 [...]½1775, Dec. 25. 1796, May 25.33 8 965 15 0 [...]52 16 6 [...]12 18 6
 11 9 11Feb. 28.J. B. Goldsberry1795, July 27.11 13 923 3 818 9 34 4 5
 8 11 61773, Dec. 29.John LoydApril 29.9 10 10 [...]18 2 4 [...]15 2 72 19 9½
Account7 3 61775, May 1.Douglass WilkinsMay 8.7 3 614 711 2 73 4 5
Bill of Sale13 4 11July 1.William RideoutJuly 27.13 4 1126 9 1023 8 103 1
 128 10 5¾   135 5 3¾263 15 9½214 17 10½48 17 11
Difference between the Currency of Virginia when the above debts were contracted and the time when they were paid, 6 2-3 per cent. on l. 214 17 10 1-214 16 5½
Total Amount of the foregoing Claims.
Class.Characters.Interest to Jan. 1, 1798. 
A.9 18 3¼207 9 712 2 0½249 0 7¼ 
B.7 14 4½79 11 6½9 11 1¾93 2 7½ 
C.64 3 3½448 15 10¾72 3 3536 10 3¾ 
D.75 16 11¾436 3 3½92 14 9¾513 17 8¼ 
 157 12 111172 0 3¾186 11 2¾1392 11 2¾ 
    186 11 2¾ 
    1172 0 3¾ 
    157 12 11 
    -2908 15 8¼
E.----48 17 11
   Virginia Currency, £2957 13 7¼
   Difference of Currency,14 6 51/ [...]
Errors and Omissions Excepted,
Thomas Gordon, Attorney in fact for William Cunningham & Co.

N. B. The foregoing Lists of Debts were contracted at a Store kept by Alexander Horsburgh, as Factor for William Cunningham & Co. previous to the American war, and are characterized agreeably to a List made out in 1775.


THE ANSWER. TO THE COMMISSIONERS For carrying into effect the Sixth Article of the Trea­ty of Amity, Commerce and Navigation, be­tween His Britannic Majesty and the United States of America, concluded on the Nineteenth of November, 1794.
The answer of the United States by their agent to the claim of William Cunningham, Peter Murdoch, James Robison and John Hamilton, junior, surviv­ing partners of Andrew Cochran, William Cunning­ham, Robert Bogle, John Murdoch, Peter Mur­doch, James Robison, William Henderson, William Reid and John Hamilton, junior.

SECTION I. AS this claim is conceived to submit to the decision of the board of commissioners many of the important principles relative to the debts within the state of Virginia, of which payment may be claimed under the treaty of 1794 from the treasury of the United States, it seems necessary that it should be distinctly and thoroughly examined in all its parts, and that every material principle which it involves should be fully discussed.

[Page 2] Limited juris­diction of the Arbitrators.The United States and his Britannic Majesty have constituted by mutual consent an extraordinary tri­bunal for hearing and deciding the special cases con­tained in the 6th article of the treaty of 1794. As the cognizance of this tribunal is expressly limited to special cases, nothing can be more indispensably requisite than to understand the limits which are set to it. In arbitraments between man and man under the municipal regulations of a state, it is a rule that the arbitrators ought not to exceed their jurisdiction, and if they do, a remedy may be easily supplied in the ordinary course of justice, for by the civil as well as the common law an award upon a case to which the submission does not extend is void. In arbitra­ments between nation and nation the same rule pre­vails that the arbitrators ought not to exceed their jurisdiction, but if they do, there being no common controuling power to correct the error each nation has a just right to judge for itself, and may justly consider as void every arbitrament upon a case out of their limited jurisdiction. This observation is made to impress on the commissioners the pri­mary importance of understanding the limits which are prescribed to them by the terms of the article: For should an error unfortunately occur on this point it may lay a foundation for disappointing all the good consequences that have been expected from the article and perhaps for renewing the dissen­sions between the two nations which it is so desira­ble should be forever composed.

In expressing on the part of the United States their opinion, that it is necessarily reserved to each [Page 3] nation to determine for itself whether an award is within the sphere of the submission,Limited juris­diction of the Arbitrators. it is not meant to assert that the arbitrators are not to decide for themselves whether a case is cognizable before them or not, but it is meant to assert that though they shall decide a case to be cognizable before them, yet if it ap­pears to either nation that it is not, either has a just right to disregard the award. If this were not so, there would be no difference between a limited and an un­limited submission. If this were not so, the commis­sioners might determine any and every question upon any and every subject which concern the two nations. Though this opinion is so reasonable in itself that it need not be supported by any authority, yet what a learned modern writer has said upon this subject deserves to be noticed. Vattel relative to the arbi­tration of national disputes observes ‘It may then happen, as in the example just alledged, that the arbitrators may exceed their power, and pass their judgment on what has not been really submit­ted to their decision: and being called to judge of the satisfaction a state ought to make for an offence they may condemn it to become subject to the offen­ded. Certainly that state never gave them so exten­sive a power, and their absurd sentence is not bind­ing. To avoid all difficulty, and to take away every pretence from bad faith, it is necessary to determine exactly in the compromise, the subject of the dis­pute, the respective and opposite pretension, the demands of the one, and the oppositions of the other. This is what is submitted to arbitrators, and upon this they promise to adhere to their judgment. [Page 4] If then their sentence is confined within these bounds,Limited juris­diction of the Arbitrators. it is necessary to submit to it. It cannot be said that it is manifestly unjust, since it is pro­nounced on a question which the dissention of the parties renders doubtful, and which has been submit­ted as such. In order to be free from such a sentence, it should be proved by indubitable facts, that it was produced by corruption, or a flagrant partial­ity.’ —Book 2d, section [...]29.

Hence it appears if a case within the submission is de­cided by arbitrators, even though the sentence is con­ceived to be unjust it ought to be executed unless proceeding from corruption; but if the case be out of the submission then the sentence is not obligatory.

When the treaty of 1794 was formed, the courts of justice in all the states of America were open. This was well known to the negociators on both sides as well as to both nations. But there were some par­ticular and extraordinary cases in which complete justice was not attainab [...]e in the ordinary course of justice and to decide these a particular and extraor­dinary tribunal was instituted. The treaty having been made between two nations who speak the same language, who are alike in manners and morals, who till lately were united under the same empire and whose principles and ideas of justice are deri­ved from the same sources, it may be hoped to re­ceive the same interpretation in both countries, and especially that there will be no disagreement respect­ing the meaning of the 6th article among the com­missioners who are selected to decide upon it. In [Page 5] the proposed discussion much aid will be sought by the agent for the United States from the rules and principles of equity recognized by the judicial de­terminations of the British courts, whose pure and wise administration of justice for many ages while it has been the source of happiness to the people of that country, has also been an object of the high­est admiration among mankind.

It is a general rule that has prevailed at all times and which is acknowledged in all courts that the plaintiff or claimant must produce sufficient proofs of his case to be entitled to the redress he seeks.Claimant to prove his Case. Melior est conditio defendentis is a maxim highly es­teemed because it conduces to the security of pro­perty and to the repose of society. This rule applies to the claims which may be brought before the board with more than ordinary force from the nature of the transactions to be examined and proved, which in detail are unknown to the United States or their agent but which may be presumed generally to be known to the claimants with all the material cir­cumstances belonging to each case. The proprie­ty of applying this rule with precision is further strengthened by the terms of the agreement on the part of the United States who promise to make full compensation for losses and damages in those cases only where full compensation cannot be obtained in the ordinary course of judicial proceedings and which have been occasioned by some lawful impediment, without the delay or negligence or wilful omission of the claimant and without the insolvency of the debtors or other causes as would equally have ope­rated [Page 6] to produce such loss if some legal impediment had not existed.Claimant to prove his Case

Wherefore the agent for the United States cannot omit to insist that the United States ought not to be awarded to pay the debt of any citizen to the claim­ant until the latter shall produce satisfactory proof of every ingredient essential to a case of loss and damage chageable to them under the stipulations in this article of the treaty. What those ingredients are, will now be the subject of enquiry, for which purpose it will be convenient to recite the first clause of the article under consideration which is as fol­lows:

‘Whereas it is alledged by divers British mer­chants and other his majesty's subjects, that debts to a considerable amount, which were bona fide con­tracted before the peace still remain owing to them by citizens or inhabitants of the United States, and that by the operation of various lawful impediments since the peace, not only the full recovery of the said debts has been delayed, but also the value and security thereof have been in several instances im­paired and lessened, so that by the ordinary course of judicial proceedings, the British creditors cannot now obtain, and actually have and receive full and adequate compensation for the losses and damages which they have thereby sustained. It is agreed, that in all such cases, where full compensation for such losses and damages cannot, for whatever reason, be actually obtained, had and received by the said creditors in the ordinary course of justice, the U­nited States will make full and complete compensation [Page 7] for the same to the said creditors:Claimant to prove his Case▪ But it is distinctly understood, that this provision is to extend to such losses only as have been occasioned by the lawful impediments aforesaid, and is not to extend to losses occasioned by such insolvency of the debtors, or o­ther causes as would equally have operated to pro­duce such loss, if the said impediments had not existed; nor to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the claimant.’

So brief and intelligible is this stipulation that it is difficult by any phraseology to make it either more concise or plain. To attempt it let it be said that every claim against the United States must be found­ed on a debt contracted before the peace and remain­ing due to a British subject on the 19th November 1794, from a citizen or inhabitant of the United States, which by the operation of some lawful im­pediment since the peace, has been either delayed as to recovery or lessened in value or security, so that a loss and damage has accrued to the creditor for which in the ordinary course of judicial proceedings full compensation cannot be obtained and which loss and damage was not occasioned by the insolvency of the debtor or any other cause that would have equally produced it, if a legal impediment had not existed, or by the manifest delay or negligence or wilful omission of the claimant. For every such loss and damage, full and adequate compensation is pro­mised by the United States, and God forbid that a promise so just and so honorable should not be ful­filled with exemplary fidelity.

[Page 8] Claimant to prove his Case.Every remediable claim must be for a loss of the special description following:

1st. There must have been a debt from a citizen of the United States to a British subject contracted before the peace of 1783.

2d. This debt must have remained due in whole or in part on the 19th November 1794, when the last treaty is dated.

3d. The debtor must have been solvent at the date of the treaty of peace and during the existence of some lawful impediment must have become insolvent and be so yet.

4th. Some loss and damage to the creditor must have arisen from some lawful impediment either by delaying the payment of it or lessening its value or security, and the nature and extent of that loss should be described.

5th. There must be an incompetency in the ordi­nary tribunals of justice to compel the debtor to make full compensation for the loss and damage be­fore mentioned.

These several ingredients it is incumbent on the claimant to prove to the satisfaction of the commis­sioners before an award can be justly made in his fa­vor; and moreover, if it shall appear from the proofs produced either that the loss and damage a­foresaid had been occasioned by the manifest delay or negligence or wilful omission of the claimant or by the insolvency of the debtor or other cause that would have equally. produced it, if no legal impedi­ment [Page 9] had existed,The claimant to prove his case. it is not to be compensated by the United States.

Nothing need be said to shew the necessity of proving the first, second and fourth particular nor to elucidate the reasonableness of requiring that proof from the claimant. A few remarks however are expedient relative to the third and fifth.

As to these it may be observed the claimant is to be presumed to know the circumstances of the debt­or, because they are generally known when the credit is given, and the creditor having an interest in the affairs of his debtor, will naturally from time to time make enquiries concerning his transactions, so as to know how he has been employed, whether he has been thrifty or prodigal, what estate he possessed, what was done with it, where his domicil is, and many other particulars which need not be here enu­merated. If the agents of the United States were multiplied so as to fill every corner of the country this sort of knowledge would be acquired by them in most instances with great difficulty and expense. This observation is specially applicable to claims ari­sing out of debts contracted in America in the course of retail dealing. Therefore it seems on this account reasonable that the claimant should be required to prove the solvency of the debtor at the treaty of peace, and his insolvency since, and the legal im­pediment to the recovery of the debt which has oc­casioned a loss. But another reason for requiring these proofs from the claimant arises from the na­ture of the promise of the United States. It is a promise to pay out of their treasury whatever sum [Page 10] of money is necessary in certain cases for doing com­plete justice to the creditor which the debtor ought to pay, but which cannot be got from him. They are responsible to pay, only if the debtor cannot ei­ther by reason of inability or certain other cau­ses be compelled to make full compensation, and have agreed to pay whatever deficiency of full com­pensation shall remain unattainable from the debtor in the ordinary course of judicial proceedings in the particular caseS described in the article. The claim­ant therefore ought to prove what this deficiency is, which implies that he must also prove that he has diligently prosecuted all reasonable means for recov­ering from the debtor whatever it was possible to get from him in the ordinary course of justice. In the case of every particular debtor a question will a­rise to be decided by the commissioners, whether the creditor has used reasonable diligence to compel him to pay the debt. Hence it may be inferred as a general rule that the creditor ought to apply to the courts of justice against the debtor before he applies to the commissioners against the United States.

Cases not re­lievable under the treaty.If this interpretation of the meaning of the stipu­lation be correct, it will follow that compensation ought not to be awarded against the United States for a loss and damage in any of the following cases.

1st. Where a debtor has resided in a state, in which ever since the peace the course of justice has been as free and unimpeded in respect to British cre­ditors as it was before the war.

[Page 11]2d. Nor where the debtor was insolvent at the date of the treaty of peace.

3d. Nor where the debtor was solvent at the time when the present constitution of the United States went into operation and by ordinary judicial pro­ceedings might have been compelled to pay the debt if he had been prosecuted with reasonable diligence.

4th. Nor where the debtor is solvent now, and the ordinary course of justice is competent to full re­lief.

5th. Nor where the debtor is solvent now and the ordinary course of justice is competent to partial re­lief for any more than the part which cannot be recovered from the debtor in the ordinary course of justice.

6th. Nor where the debtor and creditor have vol­untarily compromised the original demand by a new contract, or satisfactorily settled it before or subsequent to the treaty of peace.

7th. Nor where the creditor from the consider­ation of blood or friendship to the debtor, has omit­ted to sue for it till it has become irrecoverable, or would not now sue for it if the debtor was able and might be compelled to pay it. That cannot be said to be a loss and damage, to which the party freely consents.

8th. Nor where the creditor at the commencement of the war was barred according to the laws of the land by the judgment of a competent court or by any act of limitation or other cause, so that if the [Page 12] independence of the United States had not been esta­blished a recovery could not have been had.

9th. Nor where the treaty of peace having com­plete operation, the justice and extent of the claim has been judicially decided and ascertained accord­ing to those rules of law and equity which prevailed when the contract was made and the judgment of the court has been fully satisfied and discharged. For instance, where verdicts founded on equity have been rendered for the defendant, or where in judicial proceedings off-sets and credits have been justly al­lowed to reduce the debt, or where interest during the war in whole or in part has been disallowed upon equitable considerations.

It is not attempted to enumerate here all the cases which may be brought forward, containing some feature or other that excludes them from relief under the 6th article of the treaty, but those are present­ed to view which seem least liable to controversy. This article must be admitted to have grown out of the 4th article of the treaty of peace, and was meant to retribute the losses and damages in certain cases arising from a contravention or imperfect execution of it. If this be the policy of the stipulation, it may be laid down as a fundamental rule, that no loss nor damage is reparable under the treaty of 1794 that is not grounded on a debt comprehended in the 4th article of the treaty of 1783 and has not pro­ceeded from the violation or non execution thereof. This leads to an enquiry as to the true meaning of the lastmentioned article and particularly whether it meant to provide for the payment of interest during [Page 13] the war, and if it did not, then it must be contended that compensation ought not to be awarded for in­terest during the war.

SEC. 4.Interest during the War. These debts were contracted either in the then American colonies where the creditor and deb­tor resided at the time of contract, or elsewhere in other parts of the British dominions where the cre­ditor resided. Most of the objections against the claim of war-interest, are alike applicable to both descriptions of debt and a few will apply with grea­ter force to the former.

Though the 4th article of the treaty of peace, is in its terms reciprocal so that it would seem that each nation was equally interested in having it plain and free from doubt, yet the contrary is well known to be the fact. The creditors almost entirely belong­ed to one and the debtors to the other nation. It was then the peculiar interest and duty of the credi­tor nation to express this stipulation in such language as to leave no doubt that it embraced not only the principal debt but the interest also during the war, and if this explanation has not been made it is the worse for that nation. Veteribus placet pactionem ob­scuram vel ambiguam venditori et qui locavit nocere; in quorum fuit potestate legem apertius conscribere. Di­gest, lib. 2, tit. 14, de pactis leg. 39. "It is an ancient rule that an obscure or ambiguous pact is to be con­strued unfavorably to the vender and creditor in whose power it was to express the legal meaning more plainly." The same thing is laid down by Vat­tel as a general maxim in interpreting treaties B. 2. Section 264. "If he who can and ought to have ex­plained [Page 14] himself clearly and plainly has not done it,Interest during the War. it is the worse for him; he cannot be allowed to in­troduce subsequent restriction; which he has not ex­pressed," nor (I will add on the same principle) can he be allowed to introduce subsequent extensions which he has not expressed. The pact made between the two nations exists only in the article now under consideration, and if the expressions admit a reaso­nable doubt whether interest during the war was comprehended or not, and if it was the duty of the creditor to have been more explicit than he has been, that interpretation is to be received according to these rules, which is most favorable to the debtor.

This argument is enforced by what passed between the Commissioners of the United States for negotiat­ing a peace with Great-Britain, and David Hartley, minister of his Britannic Majesty. Before the defi­nitive treaty was signed in their letter of the 17th July 1783, they represented the sense of Congress on war-interest, in the following words "Congress also think it reasonable that such part of the interest which may have accrued on such debts during the war shall not be payable, because all intercourse be­tween the two countries had, during that period be­come impracticable, as well as improper. It does not appear just that individuals in America should pay for delays in payment, which were occasioned by the civil and military measures of Great-Bri­tain."* After this if War-interest was meant to be claimed on the part of Great-Britain some un­eqivocal terms should have been used, comprehend­ing it, and the not using such terms is an acquiescence [Page 15] in the opinion entertained by Congress,Interest during the War. which had been communicated by the American negotiators of the Treaty.

Hence it may [...]e presumed that the article was understood by Great-Britain, as it was by America, and understood not to comprehend war-interest.

Moreover, it is said by Grotius, that if the mean­ing of words be dubious as the seller or buyer may be affected, the interpretation ought to be against the seller, who ought to blame himself for not fully explaining himself. B. iii. Ch. 20. Sect. 26. So if a doubt arises whether the words of a stipulation ought to be interpreted favorably to the creditor or to the debtor, the reason of this rule ought to be ap­plied in favor of the debtor, who is generally in the greater want, and therefore is in more need of the benignity of construction.

2dly. Supposing the words of the article to be am­biguous, that interpretation is to be preferred that leads to equality, and therefore it has become a well known rule, that the cause of him who wishes to avoid a loss, is to be preferred to him who seeks an advantage. Vattel, book 2d. section 301. To deny interest on these debts during the war will put the creditor and debtor upon a more equal footing than to exact it, and a loss will not be incurred by the debtor for the sake of a gain to the creditor.

What is meant by interest?

If interest be defined the hire of money to be paid by another for the use of it, this ought not to be paid to the creditor, when the debtor has been de­prived [Page 16] of the means of using it with profit by unfore­seen events,Interest during the War. to be attributed to the creditor equally, if not more than to himself. If the creditor receive interest during the war, he loses nothing, and gains every thing that he would have gained in peace. To him the war is no calamity. On the other hand if the debtor pays interest during the war, hav­ing made no profit during this period, but in many instances having sustained losses, he will be charged with an additional loss.

Thus then it is apparent, that if the British cre­ditors remain without war-interest from their Ame­rican debtors, who made no profits during the war, the two parties will be in a more equal situation, than if the former should receive that interest.

Thirdly. The stipulation in the fourth article of the treaty of peace "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" contracted before that time, provides for the principal only, and leaves all claims of interest open, to be decided judicially, according to all the circum­stances of each case. There is no country in the world, where the distinction between principal and interest is better understood than in Great-Britain, and there Debt in common parlance means principal exclusively of interest. Generally in accounts the debt and the interest are distinctly stated.

If in the language of some political writers inte­rest is truly defined to be the hire of money, it cannot be contended that the hire of the sum is the same thing with the sum itself. This would be to say that [Page 17] a profit produced by a thing, was the thing itself.Interest during the War. But the profit of land, or chattels is well known to be a distinct and separate thing from the land or chattels. No remark perhaps can more strongly en­force this distinction between debt and interest, than that debts in many instances do not carry interest. This is too well known to require particular illustra­tion. If a sum of money be due, a promise to pay the debt is not a promise that interest on the debt shall be paid also.

According to the Roman lawyers "interest is what is given more than the principal, that the creditor may not be a loser;" Usura quod accedit ne in dam­no versetur creditor. Grotius B. 2. chap. 12. note to sec. 21. The learned Puffendorf observes that the damages allowed the creditor for what he might have made of his money, are among other reasons, de­manded for failure of payment at the time appoint­ed, which ought to be stated according to the loss sustained, be it what it will; but because it would be difficult to prove and adjust it exactly, it is there­fore generally reduced to regular interest."

"Since therefore 'tis lawful to demand damages for tardy payment, or because we lose by not having our money paid in at the time appointed, why may we not bargain for something certain be­fore hand, upon consideration that our money is in another man's power, whereas we were not obliged for his benefit to venture the loss, or to neglect the gain that might be made of it." B. 5. chap. 7. sec. 9. But on this point let the books of English jurispru­dence be consulted, and let that definition of interest [Page 18] be received in preference to any other,Interest during the War. which in a long course of judicial decisions, by learned, wise and just judges, has been established in England. To this the claimant will not presume to object, and the agent for the United States conscious of the inte­grity, intelligence and equity, which the judges of that country have displayed, most readily consents. By the English judges, interest is considered as com­pensation for the damage arising from detaining the debt, and so distinct is the interest considered from the debt, that an action of debt does not lie to reco­ver the interest accrued on the debt. In the case of Yeoman vs. Barstow, justice Powel said that "debt ne gist pour interet," 1 Lutwyche 274. In the case of Seaman vs. Dee, after several arguments lord chief justice Hale said "no action of debt lies for the inte­rest of money, though he which borrows it, promi­ses to pay after the rate of 6 per cent for it, but it is to be recovered by assumpsit in damages. So where by deed the party covenants or binds himself to pay the principal with interest, the interest is not to be included with the principal, in an action of debt, but shall be turned into damages, which the jury is to measure to what the interest amounts to." 1 Ven­triss 198. This is a judicial resolution upon the very point, whether interest was recoverable as debt, which was brought before the court by demurrer, and therefore is of high authority. If it be an axiom of English law, as it is believed to be that an action of debt lies for recovering every debt, and if such an action does not lie for interest, as has been shewn, it then follows that in the eye of English law, inte­rest is not debt.

[Page 19]In the case of Holdiph vs. Otway,Interest during the War. it was declared by the c [...] to be the course of both courts upon a judgment in debt by default or confession to tax the damages occasione detentionis debiti as well as the costs of suit &c. 2d. Saunders 206. In Hobior vs. Ebyzson upon a writ of error to the king bench, the counsel for the plaintiff said that in an action of debt and judgment by default interest was allowable by the court, by way of damages occasione deten­tionis debiti, without the trouble of a writ of enqui­ry, and the counsel for the defendant, agreed, That in debt a jury will be directed to give the interest in damages, and chief justice Parker in giving judge­ment declared that by the common law in every ac­tion of debt damages are given occasione detentio­nis debiti, either by writ of enquiry or by the court. 10th. Mod. 277. Lord Mansfield in the case of Zinck vs. Langton, confirmed this doctrine that in an action for debt interest is recoverable by the way of damage and ought to be the rule for assessing the damage. This was a writ of error, and a motion was made under the statute of Henry the 7th. that interest on the original judgement should be allowed for da­mage sustained by the delay arising from the writ of error which was granted by the court, who said that the original action being for a debt, the interest ought to be the measure of the damage." So in Sweatland vs. Squire, justice Powel said that interest is recovered by way of damages when damages are recovered occasione detentionis debiti. 2d. Salkeld 623. In short no rule seems better established in the practice of the courts of England as well as of the several United States than that in an action of debt, [Page 20] interest is recoverable as compensation for the da­mage occasioned by detaining the debt.Interest during the War. Thus much has been thought necessary for supporting the posi­tion, that "debt" is distinguishable from interest and does not necessarily ex vi termini include inte­rest. If this be admitted, then the 4th article of the treaty of peace being silent as to interest, may be interpreted not to include it, but to leave all claims of interest to be decided according to justice, upon a comprehensive view of all circumstances attending each case.

As a general rule it may be admitted that interest from the ratification of the definitive treaty of peace ought to be paid to the creditor in specialty cases, and also wherever by the usage of trade it was in contemplation of both parties that it should be pay­able. Though this should be admitted, yet it is contended that interest during the war under the singular and unprecedented circumstances under which the creditor and the debtor were placed by it, ought not in equity to be paid.

1st. Because it may fairly be inferred that the omission in the treaty to stipulate for the payment of war-interest, was meant to bury in oblivion that species of damage arising from the detention of debt for which interest is the ordinary compensation. This idea is strongly supported by Vattel, who says, ‘As every power at war pretends to have right on its side, and this pretension is not liable to be judg­ed by others, the state of things at the instant of the treaty is to be held legitimate, and any change to be made in it requires an express specification [Page 21] in the treaty,Interest during the War. consequently all things not mention­ed in the treaty, are to remain as they were at the conclusion of it. This is also a consequence of the promised amnesty. All the damages caused during the war are likewise buried in oblivion, and no plea is allowable for those the restoration of which is not mentioned in the treaty: they are looked on as if they had never happened.’ B. iv, sec. 21. If then the damage to the creditor by detain­ing his debt during the war, is to be buried in obli­vion, there remains no ground to claim compensa­tion for that damage, or in other words to claim in­terest. This matter must remain incapable of repa­ration as at the instant of the treaty.

2dly. In a liberal view of this subject it deserves to be noticed that different opinions have been en­tertained in the United States and great Britain con­cerning that part of the 7th Article which prohibits the "carrying away negroes or other property of the American in habitants," and it has been executed in the manner most favorable to the latter. The Ame­ricans insisted that this Article was to be interpreted liberally in favor of their ancient rights, but the strict construction has prevailed. With respect to the 4th Article concerning debts, the Americans have con­tended and do contend, that a strict construction ought to be given to it, excluding interest, but on the part of Britain it is urged that a liberal construc­tion should be given, so as to include interest. Is it reasonable or equal that where a strict interpreta­tion of one article will be advantageous to Britain, it should be taken, and that where a strict interpreta­ion [Page 22] of another article will be advantageous to Ame­rica,Interest during the War. it should be denied. In a national point of view, may not the loss of slaves by reason of the strict construction put on one article, be reasonably opposed to the demand of interest during the war, when founded not on a strict but on the most liberal interpretation of another article? Is it reasonable that every article in the treaty shall be understood most unfavorably to the United States? Is it consist­ent with those "principles of liberal equity and re­ciprocity" which the preliminary articles declare to be the basis for securing perpetual peace and harmo­ny?

3dly. It cannot be said with reason or justice, that when by the laws of the nation to whom the credi­tor was subject, it was highly criminal for him to receive payment, the damage to him in not re­ceiving payment, should be answered by the debt­or. So fully impressed with the weight of this argu­ment was the British Secretary of Foreign Affairs, in the year 1786, in a conversation with the Ameri­can Minister, that he agreed with him in the injus­tice of demanding interest during that period. This may be seen in an extract of a letter from the Ame­rican Minister at the Court of Great-Britain to the American Secretary for Foreign Affairs, dated June 16, 1786.

Lord Caermarthen told me yesterday, "That he had letters from Mr. Anstey, mentioning his civil reception." A long conversation ensued up­on the subject of the frosts, debts, &c. little of which being new is worth repeating. The policy [Page 23] of giving up the interest during the war,
Interest during the War.
and of agreeing to a plan of payment by instalments, was again insisted on, from various considerations, particularly from the evident injustice of demand­ing interest from that period. It was urged that the claim of interest, in most cases, was grounded upon custom and the mutual understanding of the parties; but that it never had been the custom, nor had it ever been understood or foreseen that an Act of Parliament should be passed, casting the American debtor out of the protection of the crown, cutting off all correspondence and render­ing all intercourse criminal; for that was the re­sult and the legal construction during the whole war.

‘Here his Lordship fully agreed with me, and ev­en out-went me, saying, that "It was very true, that by construction of the law of this land, it was high treason in a creditor in Great-Britain to re­ceive a remittance from his debtor in America du­ring the war." His Lordship added some slight expressions concerning the interest, and wished that the Courts were opened for recovering the principal: we might leave the interest for an after consideration.’ President's Messages, 140.

4thly. The detention of the debt during the war, was unavoidable by reason of the war, not only be­cause all commerce was interdicted to the United States by the British parliament, and all intercourse and access between the American debtors and British creditors was unlawful and generally impossible in consequence of the party creditor, but because the [Page 24] Americans were absolutely deprived of the means of payment,Interest during the War. by the nature, manner and events of the war. On the side of the Americans it was a war for life, liberty and property—it was a war pro aris et focis; their country was invaded almost every where, hostilities were brought into its bosom, their great towns taken, some of their small ones destroy­ed, the husbandmen obliged to abandon their homes, the labourers carried away by force, or seduced by reward, the plantations and farms not permitted to be cultivated, as in ordinary wars between independent nations they might have been, and all the products of the land were indispensably necessary for defence. There was nothing left to an individual for paying interest on his debt, and in a contest of this kind, if successful, few expected to be required at a future day to pay interest upon any debt due to a British creditor, for that space of time when all profit from their property was become impossible. Waving the enquiry before a tribunal constituted as this is, con­cerning the justice of the war on the one side or on the other, it may be asserted, that if the two nati­ons had equal justice on its side in regard to it, yet under the extraordinary circumstances attending its prosecution it is not equitable to claim interest dur­ing the period of the war upon American debts due to British subjects. The agent for the United States is aware that Great-Britain is to be viewed in the light of a creditor nation in Europe, Asia and Ame­rica, and that it deeply concerns her to extend the claims of interest upon debts as far as may be prac­ticable, yet he relies they will be limited by the principles of equity. He shall avoid controverting [Page 25] the proposition that debts due to private persons before a war, shall be paid after the war,Interest during the War. and with interest too during the war, if such was the con­tract, either tacit or express.* However just and true the proposition may be in general, yet he in­sists that the present case ought to be excepted upon principles of sound reason and genuine justice. Here he cannot omit making a few remarks upon a passage in Grotius, and another in Vattel, lest they should be supposed to invalidate the present argument. The former uses these words ‘If no­thing else be agreed upon, yet this is to be sup­posed in every peace that no action shall be com­menced for damages done in war, which also is to be understood of those done to private persons, these being also the effects of war: for in a doubtful case it is to be imagined that neither party will be willing to own themselves guilty of injustice, book 3. ch. 20. sect. 15. Yet those debts which were due to pri­vate persons at the beginning of the war are not to be forgiven, for these were not contracted by the right of war, but only forbidden to be demanded in time of war, therefore the impediment being re­moved, that is the war ended, they retain their full force.’ b. 3. 620. sect. 16.

It is to be observed that at the time this author [Page 26] wrote,Interest during the War. interest was lawful in but few countries, and there not generally but in special cases: therefore interest on a debt during war could not have been in his contemplation, and the latter section is to be confined to the principal only. So understand­ing it the doctrine is not denied. But the former section very much favors the idea which has been be­fore pressed, that interest being the rated damage for detaining the principal, and this detention being the effect of the war, and the treaty not expressly mentioning interest, it ought to be considered as a damage forgiven by the peace.

In like manner it is laid down by Vattel ‘debts contracted with individuals or injuries which they may have received without relating to the war, are likewise not abolished by the agreement and amnesty, these relating only to their object, that is the war, its causes and effects. ‘That the ef­fect of the agreement or amnesty cannot be ex­tended to things of no relation to the war, con­cluded by the treaty. Thus claims founded on a debt or an injury prior to the war, but which made a part of the reasons for undertaking it remain en­tire, and are not abolished by the treaty unless it be formally extended to the extinction of every claim whatever. It is the same with debts con­tracted during the war but for causes of no rela­tion to it or with injuries likewise done during the course of the war, but foreign to the state of it.’ Upon this let it be observed that the first clause relates to the debts due to the nation, and the latter to the debts due to individuals; and it is agreed that [Page 27] neither species of debts as distinct from interest,Interest during the War. are abolished by a treaty of peace without express words to that effect. 2d. It is true that the author lived at a time when interest on debts was become more ge­neral than in the time of Grotius, and therefore per­haps he has used different expressions, which as to individuals are confined to debts exclusive of interest, or if they extend to interest during the war, they are to be understood to abolish interest during this period. According to him claims for re­paration of injuries arising from or effected by the war, are abolished; others not relating to the war are not. Tne detention of the debt during the war was an injury or damage to the creditor, pro­duced by the war, especially under the circumstances of the American war; therefore a claim for repara­tion for this damage, that is for interest during the war is abolished by the treaty of peace.

But further to illustrate that the circumstances of the American war ought in the judgment of just men to exempt the debtor from paying interest during that period, it deserves to be noticed that in the un­derstanding of both parties when the credit was giv­en, the expected profits of the farms and plantations in America constituted the funds from which the debts were payable, and the interest too in those ca­ses where by contract or usage interest ought to be paid. It is laid down by Viner in his abridgement of the laws of England ‘that where by a general and national calamity nothing is made out of lands which are assigned for the payment of in­terest, it ought not to run on during the time of such calamity.’ title Interest, C. 7. Basil vs. Ache­son. [Page 28] Surely it is not necessary to enlarge on the ca­lamitous situation of America during the war,Interest during the War. or to attempt to prove a fact so notorious, that individuals generally made no profit to themselves out of their lands. In the language of the American Secretary of State, in his excellent letter of 29th May 1792, to the British minister, ‘Can a more general nati­onal calamity be conceived than that universal de­vastion, which took place in many of those states during the war? Was it ever more exactly the case any where that nothing were made out of the lands which were to pay the interest? The pro­duce of those lands, for want of the opportunity of exporting it safely, was down to almost no­thing in real money, e. g. tobacco was less than a dollar the 100lb. Imported articles of cloathing or comsumption were from four to eight times their usual price. A bushel of salt was usually sold for 100lb. of tobacco. At the same time, these lands, and other property, in which the money of the British creditor was vested, were paying high taxes for their own protection, and the debtor as nomi­nal holder, stood ultimate insurer of their value to the creditor, who was the real proprietor, be­cause they were bought with his money. And who will estimate the value of this insurance, or say what would have been the forfeit in a contrary event of the war? Who will say that the risk of the property was not worth the interest of its price.’ President's message, 80.

5th. In none of the states except Georgia and South-Carolina was any law passed after the defini­tive treaty which impeded the recovery of debts due [Page 29] from American citizens to British subjects,Interest during the War. that had been contracted before the war.* The courts of jus­tice immediately after the peace were open in almost all the states to suits of this kind, and so plain was the equity relative to interest during the war, that the prac­tice of the courts and juries in disallowing it was the same generally throughout the United States. Such was the practice of the courts in Massachusetts till the year 1787. Such was and has continued to be the prac­tice of the courts of New-York, New-Jersey, Pennsyl­vania, Delaware, Maryland, Virginia and South-Caro­lina, and in like manner have juries acted in the cases that were under the power of their verdicts. A con­currence of opinion on this point in the different states, of the numerous individuals whose duty in some way or other it has been to decide upon it, speaks loudly in favor of its rectitude; especially when it is remem­bered that in some of the states, the claims of British debts were so inconsiderable, and so few as not to have occasioned public concern, or to have excited any prejudices. This opinion therefore must have proceeded from the purest principles of equity; and to suppose the contrary would be to question the pro­bity of the best and most intelligent part of the Ame­rican society.

Conscious that they were not entitled to interest during the war, the British creditors themselves, or their agents, when they began the adjustment and col­lection of their debts, almost universally disclaimed interest during this period. When they obtained judgments in the courts, they formally released the [Page 30] interest during the war,Interest during the War. and the like rule they ob­served in all amicable adjustments with their debt­ors. President's Messages, page 133, 134, 12, 6, 143. The Agent for the United States is authoriz­ed to represent that this was the prevailing practice in Maryland and Virginia; and to add, that demands for more than a million of dollars have been settled and paid in those two states according to this rule, with the consent of the creditors, and in most in­stances at their own suggestion. The idea of claim­ing interest during the war, upon this kind of debts, scarcely prevailed any where until of very late years, except in the State of Massachusetts, where it began to appear in the year 1788.

Whether interest during the war, ought in equity to be paid, was a question more likely to be decided rightly immediately upon the return of the peace, when all the circumstances of the war were in the knowledge of the parties, than at a later period; and the general impression, the general conviction and general practice which was then taken up by the cre­ditors, that interest during the war ought not to be claimed furnishes an argument that deserves much consideration.

These are the reasons that have occured for main­taining the proposition that the British creditors are not entitled upon principles of justice to interest dur­ing the war, on the debts due from the American debtors, which were contracted before the war, whe­ther the debts be evidenced by bond, note or account. A bond in common form carries interest only by the usage of the courts and juries in America as well as [Page 31] in Great Britain, for the legislative acts,Interest during the War. of both coun­tries, are alike on this subject, and in both they limit the annual interest not to exceed a certain sum and do not enact positively that interest shall be paid in any case.

If according to the treaty of peace the payment of interest during the war is not stipulated but left to be decided by principles of equity, and if these princi­ples dictate that it ought not to be paid, then the claim of interest during the war cannot be awarded in any case whatever, under the treaty of 1794. The 6th article of this treaty was not designed to enlarge the rights of creditors beyond what they were under the treaty of 1783, but to satisfy their claims under the 4th article of that treaty, in instances where from the operation of legal impediments contrary to good faith losses had occurred, and complete jus­tice was unattainable from the debtors, and the cre­ditors had not been in fault.

Having upon general principles investigated the subject submitted to the commissioners under the sixth article of the treaty of 1794,Virginia law [...] and usages. the agent for the United States will proceed to discuss the particular claim of Cunningham and company. In doing this it will be necessary to enquire into the municipal laws and usages of the state of Virginia, where the debts were contracted, which are the foundation of the claim, and where the debtors, as well as the creditors or their factors did, and yet do reside: And a more particular attention will be necessary, because there is an evident want of legal information discoverable on the part of the claimants.

[Page 32]It is not denied on the part of the United States that the claimants are the surviving partners of Wil­liam Cunningham and company, who were a com­pany of British merchants, owning sundry stores in the then colony, now state of Virginia, of which a store called. William Cunningham and company's Brunswick sto [...] was one, and which for several years was under the management of their factor residing in the county of Brunswick. Nor is it denied that the practice of selling goods by retail to the plan­ters on cre [...] to answer their occasional wants, prevailed generally among the British merchants, from the earliest settlement of Virginia until the commencement of the war. Nor is it denied that anterior to the independence of Virginia, justice was administered in a satisfactory manner, but it is con­fidently asserted that since that period many improve­ments have been made from time to time, and espe­cially within the last ten years in the judiciary system of that state, so that at present justice is no where better administered than in its superior and most of its inferior courts.

Whatever respect might have been shewn anci­ently in the courts of justice to the evidence of mer­chants books, when the planters were in greater igno­rance and in greater necessity than within the last forty years, it seems very certain, that this kind of evidence had declined in reputation in the year 1748, when the act prescribing the method of proving book debts was passed, to which the claimants have referred. To encourage the merchants of Great-Bri­tain who traded to America, was the policy declar­ed [Page 33] and practised by that kingdom,Law concern­ing book debts. and this very act proceeded from a partiality to the mercantile inte­rest, and was always considered in Virginia in the light of a grievance to the planters. It instituted a species of proof unadmitted in Great-Britain, in controversies between subject and subject in that country; a species of proof which the first princi­ple of justice rejects: For no man shall be a witness for himself. But it is not correctly stated by the claimants that at the time the revolution was com­menced, the book of a merchant who or whose fac­tor resided in Virginia when the goods were sold and delivered, was conclusive evidence of the debt in all cases, but on the contrary it was only admis­sable evidence in special cases and under special cir­cumstances and relative to goods sold and delivered within a certain short time previous to the action brought, and was liable to be oppugned by any le­gal evidence whatsoever. The law consisted of the following particulars.

1st. To entitle the plaintiff to this evidence at the trial of the cause, he was required to swear or so­lemnly affirm that the matter in dispute is a store account, and that he hath no means to prove the delivery of the articles therein contained, or any of them, but by his store account. This implies that goods must have been delivered by himself or by some persons since dead, or whose testimony cannot be reasonably expected to be produced.

2d. The oath or affirmation is to set forth that the book contains a true account of all the dealings or [Page 34] the last settlement of accounts between the parties,Law concern­ing book debts. that all the articles therein contained were bona fide delivered, and that all just credits have been given to the defendant.

3d. Such book and oath or affirmation might be received as good evidence for any of the articles delivered within two years before action brought, but not for any article of longer standing, unless the defendant should have removed out of the county where the debt was contracted, in which case the time limited was three years after the article in dis­pute was delivered.

4th. A copy from the book with the like oath or affirmation might be received instead of the book itself, unless the defendant required at the time of joining issue, the book to be produced.

5th. If the creditor who delivered the merchan­dize be dead, his executor or administrator upon making oath that there are no witnesses to his know­ledge capable of proving the delivery of the mer­chandize, and the book was found so stated, and that he does not know of any credit to be given, might give such book and oath in evidence for any articles delivered within the time aforesaid.

6th. This evidence might be contested and oppos­ed by other legal evidence, and if the defendant was dead, his book might be given in evidence a­gainst the plaintiff's book. Virginia laws, 229.230. Let it be also here observed that by an act passed in 1755, the factor for merchant resident in Great-Britain or Ireland was allowed to take the same oath [Page 35] to his book of accounts or to a copy thereof which was admissable evidence in the same manner and un­der the like limitations and restrictions as were im­posed on the creditor by the act of 1748.Law concern­ing book debts. But where non-resident merchants had factors resident, they were excluded from the saving in the act for the li­mitation of actions, to persons beyond sea at the time the action accrued. Virginia laws 324.325.

These laws were in force when the revolution commenced, and are at this day in regard to goods wares, and merchandize sold and delivered before the first day of May 1780. The act of October 1779 which has been mentioned by the claimants as re­pealing the act of 1748, need only be quoted to shew the erroneous representation which the clai­mants have made of it. The first section enacts "that from and after the first day of May next, the act entitled "an act prescribing the method of prov­ing book debts, shall be and the same is hereby re­pealed, except only so far as relates to goods wares and merchandize sold and delivered, or debts contracted before the said first day of May." If any inferior court in Virginia has otherwise determined it must have been an erroneous determination, to which the cre­ditor ought not to have submitted, and which might and should have been carried to a superior tribunal to be corrected. In acquiesicng to such a decision the creditor has been manifestly negligent, or has wil­fully omitted to use the means proper and compe­tent for his redress, and in either case no damage arising from this source can be brought within the 6th article of the treaty of 1794.

[Page 36] Law concern­ing book debts.It is probable that some instances may have oc­curred, where the creditor or his factor has of­fered to prove his account by his own oath, but in consequence of failing to comply with some of the requisites of the act [...] of 17 [...] or 1755, he has been denied. However in such a case there is no ground of complaint against the court. These acts then have never been repealed and exist at this moment in full force relative to debts contracted before the war, and if this be admitted it cannot be pretended that though the factors and store keepers are dead or dispersed into distant parts of the world, the cre­ditors are deprived of any means of proof which were admissiable before the war; or that enjoying the same means of proof since the revolution which they had formerly, because they cannot satisfacto­rily prove the justice of their claims before an or­dinary tribunal of law or equity so as to obtain pay­ment from the debtors, they have therefore a right merely on this account to seek redress from the United States. Enough it is hoped has already been said upon the interpretation of the treaties to shew the untenability of such a doctrine, and with great deference to the board the agent for the United States submits whether what has been stated by the claimants relative to the operation of the acts of Virginia above mentioned, on their claims found­ed on book-debts, be not either erroneous or irrele­vant.

No legal impe­diment in Vir­ginia since the peace.It is true the courts of justice in Virginia were occluded on the 12th April, 1774, by the expiration of the act commonly called the "Fee Bill" and so [Page 37] continued 'till the revolution commenced.No legal impe­diment in Vir­ginia since the peace. From that time 'till the third day of September in 1783, when peace was made, the courts were not open to the recovery of debts due to British subjects, who be­ing enemies were incapable by common law and by the law of nations of maintaining actions in the Ame­rican courts during the war. But peace being defi­nitively made, it is contended that no legal impedi­ment afterwards existed in Virginia to their prose­cuting suits. This rests on two grounds—first that there was no act of assembly which prohibited the ori­ginal creditors from suing for their debts: And se­condly, that the treaty abrogated every law of the state which was contrary to it.

The acts of the legislature which the claimants have represented as containing impediments to the recovery of their debts are,

October 1779, ‘An act for discouraging exten­sive credits, and repealing the act prescribing the method of proving book-debts.’ This is alledged to have repealed the acts of 1744 and 1755, relative to the mode of proving book-debts. It is hoped enough has already been advanced to prove the erroneousness of this idea.

20th October, 1777, ‘An act for sequestering British property, enabling those indebted to British Subjects to pay off such debts, and di­recting the proceedings in suits where such sub­jects are parties.’ Chancery revisal, page 64. It is not expressly stated by the claimants how this act impeded the recovery of any British debts, and more [Page 38] especially any of those set forth in their claim:No legal impe­diment in Vir­ginia since the peace. Nor can it be supposed that it created any impediment un­less in two ways. First, by authorizing debtors to British subjects to make payment into the loan office of the state: but it has been solemnly determined in the supreme court of the United States, that pay­ments under this act are no legal impediment to the recovery of the full value in sterling money, of any debts contracted before the war. Jones executors vs. Hylton. at February term, 1796. To this judg­ment all the inferior courts are bound in duty to con­form, and it is believed do actually conform, There­fore it cannot be admitted that the payments into the loan office under this act or any other are legal im­pediments. Secondly, by suspending executions un­til the further direction of the legislature, in those par­ticular suits which were depending in any court of law and equity the 12th day of April, in the year 1774, wherein British subjects alone were plaintiffs, and any citizen of the Commonwealth was a defend­ant; see 5th section. It is answered that to permit these suits to continue in court during the war was a favor to which the plaintiffs, who had become enemies, were not on general principles entitled. These suits should have been abated in consequence of the war, but they were not, and on the return of peace they might have been immediately, as they have since been prosecuted, and in many instances with effect. In the classifica­tion which the claimants have made of their various debts, none were in suit on the 12th day of April, 1774, as will appear hereafter, upon examining the several claims which are presented by them to the board, and therefore, they cannot have suffered any [Page 39] damage whatever in consequence of this part of the act of 1777.No legal impe­diment in Vir­ginia since the peace. This alone is a sufficient answer to these claimants, and as to those particular persons who may have had suits pending on the 12th of April, 1774, the treaty removed the suspension im­posed by this act. On the operation of the treaty upon the laws of the state more will be said hereafter.

May 1782, ‘An act providing more effectual funds for the redemption of certificates grant­ed the officers and soldiers raised by this state. Chancery revisal, page 166.’ This act is al­ledged to have revived the act of 20th October 1777 above mentioned, by repealing the act of May 1780, which suspended so much of the act of 20th October 1777, as authorised those indebted to British subjects to make payment into the loan office. In this the claimant is correct, yet if it has been satisfactorily shewn, and the agent for the United States trusts it has been satisfactorily shewn that no payment under the act of 1777 is a legal impediment, the revival of it must be deemed wholly immaterial.

November 1781, ‘An act directing the mode of adjusting and settling the payment of certain debts and contracts, and for other purposes. Chancery revisal, p. 147.’ The claimants represent this act to have operated as an impediment in the following manner, that bonds were taken sub­sequent to the period when the scale of depretiation commence for securing debts contracted prior to that period, and that in suits on these bonds in courts of law, parole proof is not admitted to explain or [Page 40] alter the purport of the bonds,No legal impe­diment in Vir­ginia since the peace. so that they are determined to be liable to be sealed accord­ing to the date. The material words of this act are ‘And whereas the good people of this state will labor under many inconveniencies for want of some rule, whereby to settle and adjust the pay­ment of debts and contracts entered into and made between the first day of January, one thousand seven hundred and seventy-seven, and the first day of January one thousand seven hundred and eighty-two, unless some rule shall be by law established for liquidating and adjusting the same, so as to do justice as well to the debtor as creditor: Be it therefore enacted by the General Assembly, that from and after the pas­sing of this act, all debts and contracts en­tered into or made in the current money of this state or of the United States, excepting at all times contracts entered into for gold and silver coin, tobacco, or any other specific property, with­in the period aforesaid, now remaining due and unfulfilled, or which may become due at any fu­ture day or days, for the payment of any sum or sums of money, shall be liquidated, settled and adjusted, agreeable to a scale of depreciation here­in after mentioned and contained, that is to lay, by reducing the amount of all such debts and con­tracts to the true value in specie at the days or times the same were incurred or entered into:’

Let it be observed that in the lists of debts pre­sented by William Cunningham and company the [Page 41] present claimants,No legal impe­diment in Vir­ginia since the peace. there is not a single bond of this description; for they are dated anterior to the first day of January in the year 1777, and the space of depreciation fixed by the act commenced on the first day of January 1777, and ended the 1st day of Ja­nuary 1782. Consequently these claimants have no right to complain of the depreciation law, as they have not received a loss from it in any case, in any form whatever. It is reserved to the United States more fully to discuss this law, when any case of loss under it shall be presented to the board. In the mean time the agent for the United States thinks proper to mention his information, that by judicial decisions it has been settled in Virginia, that if a bond dated at any time between the 1st day of Ja­nuary 1777, and 1st day of January 1782, contains in the condition or any part of it any thing to shew the debt was originally contracted before the date of the bond, the depreciation law shall not be construed to operate on such a case; but if the bond has no such intrinsic evidence of the time the debt was con­tracted, it is liable to be scaled and parole evidence is not admitted to alter the effect and purport of the sealed instrument. Thus then if the creditor omitted to take a bond so as to shew by something in it, that it was probably to secure a debt contracted before the war, it was a wilful omission in him, and if any loss arises from hence, it is a loss not intended by the treaty of 1794, to be charged on the United States.

12th December 1787, ‘An act to repeal so much of all and and every act or acts of Assembly as prohibits the recovery of British debts.’ These [Page 42] are the words,No legal impe­diment in Vir­ginia since the peace. ‘Whereas it is stipulated by the fourth article of the treaty of peace between the king of Great-Britain and the United States of America in Congress assembled, that creditors on either side shall meet with no lawful impediment in the recovery of the full value in sterling money of all bona fide debts heretofore contracted; Be it therefore enacted by the General Assembly, that such of the acts or parts of acts of the legislature of this commonwealth, as have prevented or may prevent the recovery of debts due to British sub­jects, according to the true intent and meaning of the said treaty of peace, shall be, and are here­by repealed.’

‘Provided that this act shall be suspended until the governor with the advice of council shall, by his proclamation, notify to this state that Great-Britain hath delivered up to the United States the posts therein now occupied by British troops, which posts were stipulated by treaty, to be given up to Congress immediately after the conclusion of peace; and is also taking measures for the fur­ther fulfilment of the said treaty, by delivering up the negroes belonging to the citizens of this state taken away contrary to the seventh article of the treaty, or by making such compensation for them as shall be satisfactory to Congress.’ It will not be urged that this act repealed any act whatsoever prohibiting the recovery of British debts, if any le­gal prohibition at that time existed. But the whole act is to be considered as nugatory; the proviso an­nexed to the act which is correctly set forth by the [Page 43] claimants suspended the operation of the act com­pletely,No legal impe­diment in Vir­ginia since the peace. if indeed there had been any subject for its operation. In reality there was no such subject. There was no act or part of an act in force which prohibited the recovery of British debts on the 12th of December 1787, and it was passed under an erro­neous opinion that some such act or part of an act did then exist: an opinion that was generally prevalent as much because the creditors did not venture to bring forward their claims from an idea of a general prejudice against them before a court of justice, as for any other reason which can be assigned.

It has been alledged as another impediment to the recovery of the full value of the debts in sterling money, in the ordinary course of judicial proceed­ings, that at the time the debts were severally contract­ed the difference between sterling money of Great-Britain and currency of Virginia was only 25 per cent, and by the laws passed since the revolution the difference is now 33⅓ per cent. Since the year 1755 to this day, the law has been respecting the ster­ling money debts, the same. It was enacted, ‘that in any action which hath been or shall be com­menced, and is or shall be depending for the reco­very of any sterling money in any court of record within this commonwealth, wherein the plaintiff or plaintiffs shall recover; such court shall have power, and are hereby directed by rule, to be en­tered at the foot of their judgment in such action, to order such judgment to be discharged or levied in current money at such rate of exchange as they shall think just, any law, usage or custom to the [Page 44] contrary notwithstanding.No legal impe­diment in Vir­ginia since the peace. Virginia laws 121,323. These are the very words of the act of assembly at this day in force, and consequently there seems no pretence for the complaint which has been made re­lative to debts contracted in sterling money. As to debts contracted in Virginia, in current money of Vir­ginia, there never was a law which fixed the value of current money of Virginia in sterling money of Great-Britain at any certain rate, nor was a debt in the current money of the state ever expected to be discharged in sterling money: The lex loci was in theory and practice the rule, and when the current money debt was paid in specie at the current value, the debtor was discharged in equity as well as law. The value of a Spanish milled dollar varied from five shillings and ninepence currency to six shillings cur­rency, and was estimated of the latter value about the time the revolution commenced. Since the re­volution the value of a dollar is fixed by law to be six shillings, and other silver coins in proportion, and the dollar is the adopted item in account. Was it contemplated by the two nations when they made the treaties, that this was a subject on which a diffe­rence would arise? Rather was not the phrase ‘va­lue in sterling money’ in the treaty of peace intend­ed to preclude paper money in all varieties of form: Ought it not to be restrained to paper money, and not extended to specie? especially when the actual rate of specie in the dealings of individuals was the same on the 19th April 1775, or 4th July 1776, as at this day in Virginia.

These are all the acts which the present claimants have specifically alledged to create impediments to [Page 45] the due recovery of British debts,No legal impe­diment in Vir­ginia since the peace. and to their an answer has been severally given. But having said they dee [...] it unnecessary particularly to state, each and every act of the legislature of Virginia of this kind, it is incumbent to go still further into this sub­ject. The only act that can be supposed to have created any impediment to the claimants is the act of May 1782, ‘An act to repeal so much of a former act as suspends the issuing of executions upon certain judgment until December 1783.’ By the second section it is enacted ‘that no debt or debt or demand whatsoever, originally due to a subject of Great-Britain shall be recoverable in any court in this Commonwealth, although the same may be transferred to a citizen of this state, or to any other person capable of maintaining such ac­tion, unless the assignment hath been or may be made for a valuable consideration, bona side paid before the first day of May, in the year one thou­sand seven hundred and seventy seven, the proof of which consideration and the time thereof, shall be on the plaintiff.’ Chancery revisal, page 165.

The intent of this act which passed flagrante bell [...] was evidently to disable citizens assignees of bonds, notes or other evidencies of British debts from suing and recovering those debts which it was suspected would have been in most cases collusively done for the benefit of the original creditor. By a law of Vir­ginia of old standing an assignee of a bond note or bill may sue in his own name an action of debt. To disable the British creditor who was declared by law an alien enemy from prosecuting suits in the courts [Page 46] of Virginia,No legal impe­diment in Vir­ginia since the peace. the particular interposition of the legisla­ture was not at this time requisite. The state of war created this disability in British subjects, who being enemies could not maintain actions in our courts. But suits might have been prosecuted, upon debts of this kind assigned to citizens. This during the trouble and distresses of the war would have been oppressive and intolerable, and it called for the pre­ventive aid of the legislature: Therefore this act was made, which may be reasonably restrained to the re­covery of British debts assigned to citizens; and if this be the most proper construction it follows that no impediment has arisen to British creditors from this law.

But supposing it must be understood more gene­rally, yet it will be found not to have been in force longer than July 1784, if so long. This act not be­ing satisfactory, another act was at the next session of assembly passed, embracing the same subject, which it is contended repealed so much of the act of May 1782, as related to suits for British debts. This last law is expressly limited to continue in force from the passing of it 'till the first day of December, 1783.

October 1782, An act to amend an act, entitled an act to repeal so much of a former act as suspends the issuing of executions on certain judgments until December 1783. ‘Where­as from an act entitled, an act to repeal so much of a former act as suspends the issuing executions upon certain judgments until December, one thousand seven hundred and eighty three; sun­dry great and ruinous inconveniencies and hard­ships [Page 47] will result to the good people of this com­monwealth, unless a speedy remedy be applied:No legal impe­diment in Vir­ginia since the peace. Be it enacted by the general assembly, that no debt or demand whatever, contracted with, or due to any British subject, or contracted with, or due to any other person, for the use of, or in concern with any British subject, and still remaining un­paid, shall be recoverable in any court of record within this commonwealth, notwithstanding the same may have been renewed, changed, altered or acknowledged, to any agent, partner or assignee of such British subject, or to any other person what­soever, either for their own use or benefit, or for the use or benefit of such British subject, since the nineteenth day of April, in the year one thousand seven hundred and seventy five, any law to the con­trary, in any wise, notwithstanding.’

‘And whereas from the commencement of hos­tilities by the British against these United States, and the subsequent proceedings of the general con­vention and general assembly, there is reason to believe, that much fraud has been used to secure the debts due to British subjects, their agents or factors within this commonwealth, by pretended sales, exchanges or assignments (to the citizens thereof or other persons qualified to maintain suits for the recovery of such debts) bearing date prior to the nineteenth day of April, one thousand seven hundred and seventy five, thereby interesting a part of the citizens, in supporting the British in­terest and connection, to the injury of another part, and to the disturbance of the peace and har­mony [Page 48] of the commonwealth: Be it therefore en­acted,No legal impe­diment in Vir­ginia since the peace. that where any debt or demand shall not be recoverable in any court of record within this com­monwealth, unless it shall appear on the trial of any suit or suits for the recovery thereof, that the same was transferred or assigned for the full value thereof bona fide, paid at the time of such assign­ment or transfer, before the said nineteenth day of April one thousand seven hundred and seventy five, and that notice thereof shall have been given to the debtor before the tenth day of September, in the year one thousand seven hundred and seven­ty five, the proof of the said consideration paid; the time of assignment or transfer, and the notice thereof given as aforesaid to be on the person or persons claiming such debt or demand.’ ‘And all and every thing in the said act, and any other act whatsoever, not compatible with the above, and every part thereof, is, and the same is hereby de­clared to be repealed: Provided always, that no­thing in this act or any other act (except for British debts as aforesaid) shall prevent the recovering by executions, debts under five pounds, but that the same shall be prosecuted in like manner as if this or any other act to the contrary thereof, had never been made.’

‘Provided nevertheless, that this act shall conti­nue and be in force from and after the passing thereof, until the first day of December one thou­sand seven hundred and eighty three.’ Chancery revisal, 182.

It cannot be controverted that one statute may be [Page 49] repealed by another,No legal impe­diment in Vir­ginia since the peace. without express words of re­peal, if such be the evident sense of the latter: if for example the former be digested and merged in the latter, so that both may not consistently be in force at the same time. This is conceived to be the case with respect to the acts of May and October 1782. Be­sides the latter contains a sentence of repeal of every part of the former not compatible with the latter. If then the act of May 1782 be digested, amended and merged in the act of October 1782, which was temporary, it may be considered as being out of force with the act of October 1782. It is admitted as laid down in Hobart, 215, that an affirmative con­tinuance for a limitted time, of a perpetual statute will not abrogate it, after the expiration of the limited time, but this rule does not apply to the present case, where a perpetual statute was digested, merged and re-enacted under additional modifications by a­nother statute which was limited in its duration. This was the sense of the legislature as is undeniably manifest by an act passed in December 1783, reviv­ing the two acts of May and October 1782, for the short space of four months from the first day of De­cember 1783, when they had expired, and from thence to the end of the next session of assembly. This period happened early in July 1784, as can be proved if required. The act of December 1783 is too material not to be quoted, and is in the words following,

December 1783, ‘An act to revive and continue the several acts of assembly for suspending the [Page 50] issuing of executions on certain judgments un­til December 1783.No legal impe­piment in Vir­ginia since the peace. ‘Whereas the present scarcity of specie in this state, causes an utter ina­bility in debtors to discharge their debts, unless they are still permitted to pay them in the produce of the country, or by transferring property to their creditors, and it is therefore wise, just and necessary that the act, entitled an act to amend an act, en­titled an act, to repeal so much of a former act as suspends the issuing of executions on certain judg­ments, until December, one thousand seven hun­dred and eighty three (which provides a remedy for the said mischief) and expired on the first day of the present month, should be revived and con­tinued: Be it therefore enacted, that the said re­cited act, entitled an act, to amend an act, entitled an act, to repeal as much of a former act as suspends the issuing of executions on certain judgments un­til December, one thousand seven hundred and eighty three, be, and the same is hereby revived and further continued, from the day on which it expired, for and during the term of four months, and from thence to the end of the next session of assembly.’

‘And whereas, the said before recited act, entitled an act to repeal so much of a former act as sus­pends the issuing of executions upon certain judg­ments, until December, one thousand seven hun­dred and eighty three, hath also expired: Be it further enacted, that the said last recited act, en­titled an act to repeal so much of a former act as suspends the issuing of executions upon certain [Page 51] judgments until December,No legal impe­diment in Vir­ginia since the peace. one thousand seven hundred and eighty three, shall be, and the same is hereby also revived, and shall continue and be in force for and during the term of four months, and from thence to the end of the next session of assem­bly.’ Chancery Revisal, page 218.

From this view which has been fairly presented of the acts of Virginia, there seem strong grounds for the opinion, that independent of the operation of the treaty of peace, there was no law in force in that state which prohibited British subjects from recover­ing their just debts from the date of the peace, and at all events from the [...] of July, 1784, when the aforementioned acts of 1782 expired. Since the peace no act was passed by that state prohibiting the recovery of British debts: If any such be supposed to exist, let it be produced.

Secondly. The operation of the treaty of peace upon the acts of Virginia, will now claim some atten­tion. It is contended that the treaty abrogated all the legislative acts of Virginia, which were contrary to it if any such were to be found. On the 14th of January, 1784, Congress ratified it, and proclaimed it the law of the land, and required it to be executed and obeyed accordingly. In this light it was gene­rally considered throughout the United States; and it is not believed that any judicial decision was ever made to the contrary by the judges of any court in any state; and if by accident such a decision was ever made, it may be pronounced to be erroneous, and it would have been corrected if it had been carried be­fore [Page 52] a higher tribunal.No legal impe­diment in Vir­ginia since the peace. Much useful information may be obtained on this head in the letter of Mr. Jefferson, the American secretary of state, to Mr. Hammond, the British minister at Philadelphia, dated 29th May, 1792; see the sections 40 to 52, Presi­dent's Messages.

On the 13th of April 1787, the sense of Congress was unanimously expressed in their circular letter to the states that under the 9th article of the confedera­tion, the sole and exclusive right and power of deter­mining on war and peace, and entering into treaties, was vested in them, and that a treaty made and pub­lished by them, became immediately obligatory on the whole nation, "and superadded to the laws of the land without the intervention of the state legislatures." On the same day Congress resolved ‘that the legisla­tures of the several states cannot, of right, pass any act or acts for interpreting, explaining or constru­ing a national treaty, or any part or clause of it; nor for restraining, limiting or in any manner im­peding, retarding or counteracting the operation and execution of the same; for that on being con­stitutionally made, ratified and published, they be­come in virtue of the confederation, part of the law of the land, and are not only independent of the will and power of such legislatures, but also binding and obligatory on them.’ Journals of Congress, 1787, p. 49.

The propriety of this resolution is apparent from the words of the ninth article. ‘The United States in Congress assembled, shall have the sole and exclu­sive right and power of determining on peace and [Page 53] was,No legal impe­diment in Vir­ginia since the peace. except in the cases mentioned in the sixth article of sending and receiving embassadors; entering into treaties and alliances, provided that no treaty of commerce shall be made, whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to or from pro­hibiting the exportation or importation of any spe­cies of goods or commodities whatsoever.’ 2 Vo­lume Laws of the United States, page 551.

‘A treaty of peace binds the contracting parties from the moment of its conclusion as soon as it hath passed through all its forms. On the publi­cation the treaty becomes a law to the subjects and they are obliged to conform to the articles stipula­ted therein.’ Vattel B. 4. Section 25.

If the commonwealth of Virginia had not been con­federated with the other states, and had alone made a treaty; there is no pretence for doubting whether it would not have been received as part of the law of the land in that state, and consequently have repealed all laws in that state contrary to it. Shall it have less force, when it has been made by that state, united with other states, in conformity to the articles of con­federation. Surely not. Congress made the treaty for all the states; and none but Congress could have made it. If it be a part of the laws of the land, it has repealed all legislative acts incompatible with it upon the principle that leges posteriores priores abrogant. Though in the present constitution of the United [Page 54] States the power of a treaty over the laws of the states,No legal impe­diment in Vir­ginia since the peace. is expressly declared to be supreme, yet this expression was introduced for the sake of explicitness to prevent all misapprehensions on the subject. It furnishes no substantial argument against the power of a treaty over prior state laws under the old con­federation, on which there seems to have been a concurrence of sentiment in every part of the United States. In confirmation of this doctrine, the unani­mous judgment the circuit court of the United States in the district of North-Carolina held in June 1796, in the case of Hamiltons against Eaton, may be cited as of the highest authority. Chief justice Ellsworth in delivering his sentiments observed with his usual strength and perspicuity of expression, ‘As to the opinion that a treaty does not annul a statute, so far as there is an interference, it is unsound. A statute is a declaration of the public will, and of high authority; but it is controulable by the public will subsequently declared. Thence the maxim, that where two statutes are opposed to each other, the latter abrogates the former. Nor is it material as to the effect of the public will, what organ it is declared by, provided it be an organ constituti­onally authorised to make the declaration. A trea­ty when it is in fact made, is with regard to each nation that is a party to it, a national act, an ex­pression of the national will, as much so as a sta­tute can be. And it does, therefore, of necessity, annul any prior statute so far as there is an inter­ference. The supposition that the public can have two wills at the same time, repugnant to each other, one expressed by statute and another by a treaty, is absurd.’

[Page 55] ‘The treaty now under consideration was made,No legal impe­diment in Vir­ginia since the peace. on the parts of the United States, by a congress composed of deputies from each state, to whom were deligated by the articles of confederation, expressly, "the sole and exclusive right and power of entering into treaties and alliances" and being ratified and made by them it became a complete national act, and the act and law of every state American law cases.’ Hamilton vs. Eaton, page 77.

These are the reasons by which the agent for the United States maintains the proposition, that in Virginia there was no legal impediment to the re­covery of British debts, subsequent to the peace of 1783, or at all events, subsequent to July 1784. If this shall have been satisfactorily proved to the board, it will be difficult to produce any case grounded on a debt contracted in Virginia, where according to the treaties, the creditors will be entitled to reparation from the treasury of the United States. It is there­fore a most important point to be determined by the board. It is not denied that the British creditors generally entertained the opinion that suits were not maintainable in the courts of Virginia, and conse­quently the fact was, that very few suits were com­menced by them 'till the operation of the present constitution of the United States. This was a wilful omission on their part, and especially on the part of those who were advised, by respectable counsel, that the courts were open to the recovery of their debts.

Having said that the judicial system in VirginiaJudicial System in Virginia. [Page 56] was proper and well executed the agent for the Unit­ed States will proceed to give a general sketch of it.Judicial System in Virginia.

Virginia is divided into counties and judicial dis­tricts. In each county are a convenient number of justices of the peace; who possess jurisdiction singly to hear and determine all claims for debt under five dollars and award execution against the debtors goods and chattels. In each county a court which is a court of record, consisting of any four or more of the justices, is to be held every month, who have final ju­risdiction to hear and determine in a summary way on all demands of debts under twenty dollars, and to hear and determine all actions founded on contract, where the sum in controversy amounts to twenty dol­lars or more, and all actions founded on tort, accord­ing to the principles of common law or chancery, as the case may require; and their jurisdiction is final in common law cases founded on contract where the judgment is for less than one hundred dollars, if for more, it may be carried into the District court for correction, by writ of error or appeal, upon giving approved security for satisfying the judgment and da­mages for the delay, if affirmed, and in Chancery cases an appeal lies to the high court of Chancery, on giv­ing approved security for performing the decree if affirmed. The rules of proceeding are declared by law, so that they are not only easily understood but productive of an uniform practice. These rules are generally derived from the most improved practice of the courts of King's Bench, and of Chancery in Eng­land, with such alterations and additions as by expe­rience have been found to render them more cheap, [Page 57] more plain and more suitable to the judiciary system of that state.Judiciary of Virginia. Each judicial district it composed of several counties. A court is held in it at a fixed place twice a year, by one of the judges of the gene­ral court, according to allotment. It possesses origi­nal common law jurisdiction, in civil cases, for all sums above one hundred dollars, but their judgments may be revised and corrected in the court of appeals, by writ of error or appeal, security being given to satisfy the judgment and damages for the delay if affirmed. It possesses an appellate jurisdiction over judgments rendered in the county courts for one hun­dred dollars or more. The judges are selected from the most able, virtuous and learned of the bar.

There is a high court of Chancery, consisting of one judge, having general jurisdiction in Chancery over persons and things within the state where the matter in controversy is of greater value than ten pounds. It has three sessions annually, and for certain purposes is always open. The Chancellor is distinguished for his probity, learning and experience, for his impar­tiality, and for his unremitted, diligent and sincere endeavours to fulfil the duties of his station, so that from this court, justice has been dispensed for many years with expedition, and to the very great advan­tage of the state. The rules and forms of proceed­ing in general are established by law, and are very similar to those of the Chancery in England.

There is a court of appeals consisting of five judges, composed of law characters of the most eminent a­bilities [Page 58] and integrity,Judiciary of Virginia. who exercise appellate jurisdic­tion only in cases decided in the high court of Chan­cery and district courts. This court holds two ses­sions annually, and its decrees and judgments are final.

The person and property of the debtor are liable to be taken in execution; the person by capias ad sa­tisfaciendum, the goods and chattels by fieri facias, and the lands by elegit, which writs are issuable from and returnable to the court where the judgment or decree is rendered. This brief account of the judiciary of Virginia has been thought proper, not only to do away the mistaken notions that are prevalent on this subject, but to prepare for those observations which a particular examination of the claim of Cunningham and Company renders necessary.

William Cun­ningham and company.The claim of William Cunningham and company is for the principal sum of one thousand three hun­dred twenty-nine pounds thirteen shillings and two pence three farthings, current money of Virginia, of which a part, one thousand one hundred seventy-two pounds three pence three farthings, is stated to be good or sperate, and the residue one hundred fifty-seven pounds twelve shillings and eleven pence to be doubtful. The debts arose in the course of retail dealing in the state of Virginia, in current mo­ney of the state, and the debtors charged with the different parts of the debts are in number eighty-one, who are distributed by the claimants into five classes as expressed in the lists A. B. C. D. E. each of which will require a separate consideration.

[Page 59]A.William Cun­ningham and company. Debtors upon open account of whom it is as­serted no recovery could at any time be had since the peace, of any part of the debts.

B. Debtors whose debts are evidenced by bonds, &c. and who are said to have become insolvent since the peace, during the existence of some legal imped­iments.

C. Debtors whose debts are evidenced by bonds, whose estates are solvent and from whom it is proba­ble a recovery may be had, except interest, and the difference between the currency at the present time and when the debt was contracted, but the amount of the loss not likely to be ascertained till the time for receiving claims shall have expired.

D. Debtors who are deceased and whose property has been divided or has been squandered, or who have removed during the existence of some legal im­pediments and whose residence and circumstances are unknown.

E. Losses in consequence of deductions of interest and the difference of currency at the time the debts were contracted and at the time they were paid.

The lists of A. B. C. D. are said by the claim­ants to have been made out and characterized in 1775. This remark is understood to refer to the names of the debtors, the sums due, the evidences of debts, and whether doubtful or good in 1775, and not to the other matters which they contain.

[Page 60]


William Cun­ningham and company, list A.Upon examining this list which contains debts claimed from thirty-six individuals, amounting to the sum of £. 217.7.11, of which £. 207.9 7½ are stated to be good, and the residue £. 9.18 3½ to be doubtful, a question naturally arises upon what grounds do the claimants demand payment of the several sums set forth in this list from the United States. As to those which are stated to be good, why have not suits been brought? In such cases can it be said that full compensation is not attainable in the ordinary course of judicial proceedings until a trial shall be made? Can this be admitted to be true as to all these cases in aggregate? Perhaps in some instan­ces compensation might be had if it was sought in the tribunals having cognizance and these instances ought to be deducted.

Of these thirty-six cases twelve are cognizable be­fore a single magistrate, each being under the sum of five dollars, one is for so small a sum as one shil­ling and two pence: other twelve are recoverable in a summary way by petition before a county court, each being for a sum less than twenty dollars. While such demands furnish a proof of the extreme care and industry with which the claimants have been glean­ing their books and papers, they are liable to this ob­jection, that the two nations never contemplated such to be subject to the awards of the commissioners. Not only the maxim, de minimis non curat lex, but the honor and dignity of the nations dictate their exclusion. If it be said that the principles of equity are the same, whether the debt be one shilling or [Page 61] one hundred pounds,William Cun­ningham and company, list A. let it be observed that there will be required the same proofs and consequently the same trouble to investigate a claim for the smaller as for the larger sum. Did Lord Grenville and Mr. Jay intend this? Did the nations intend it? Or was the treasury of the United States to be resorted to for all the little balances due in America to British subjects to save them the inconvenience of requesting payment from the debtors? In all such cases payment it is presumable would be made on request where the demand is just.

As to the other remaining twelve cases in list A. how is the assertion proved that they are not recover­able in the courts of Virginia. Each of these is re­presented to be good, that is to say, due from a sol­vent person. With respect to these, the attention of the board is requested to all those observations which have been made in a general point of view, relative to the interpretation of the treaties, relative to the mat­ters which ought to be proved by the claimants, and relative to the judiciary of Virginia. It may here be added as a general rule, that the creditors ought to go before the ordinary tribunals with their claims, and ought to use reasonable endeavours to obtain payment from the debtors capable of paying, before the United States shall be charged. These endea­vours should be made to appear before the commis­sioners, and ought not to be presumed. Equity re­quires this not only for the reasons that have been given, but because in suits against the debtors, some instances will probably occur where the debts appear­ing [Page 62] to be due,William Cun­ningham and company, list A. according to the books of the mer­chants, can and will be proved by the debtors to have been in whole or in part paid. Such instances the agent of the United States is authorized to de­clare, have occurred in Virginia. It is also thought reasonable that the creditor should go through the same labor and preparation to obtain payment from the debtor, who is not certainly insolvent, as if no treaty had been made. To ease him of this was not the intent of the treaty. Again, some claims were barred by the acts of limitation before the commence­ment of the war, and such cannot be reasonably brought within the operation of the treaty, or it will have an operation retro-active to the first settlements in America. As to interest on these cases, where the creditors and debtors resided in Virginia at the time the debts were contracted, in retail dealing, it may well be doubted whether interest is justly recoverable. For goods sold, it was not usual in Virginia to al­low interest in judicial decisions before the war, and therefore they were sold at a higher price. The ex­orbitance of price compensated for the denial of in­terest. At common law, book debts do not of course carry interest, and if it be payable at all, it must be in consequence of custom or of some special agree­ment, or, ‘in cases of long delay under vexatious and oppressive circumstances,’ of which a jury in their discretion may judge. These are the words of Lord Mansfield in the case of Eddowes vs. Har­ris's executors. Douglass 361. Admitting this rule to be proper as here laid down, and that the usage in Virginia was to disallow interest on book-debts, and that no special agreement existed in any [Page 63] of these cases in list A. it follows that unless there has been long delay under vexatious and oppressive cir­cumstances,William Cun­ningham and company, list A. there is not ground to demand interest on these accounts. As to long delay, the creditor, for aught appears, has not even asked payment; cer­tainly he has not sued, but has neglected from the time of the peace, or at any rate from July 1784, to sue as it has been shewn he might have done. As to vex­atious and oppressive circumstances, they, it is hoped, will not be the subject of discussion, because such a discussion will draw forth an enquiry into the conduct of the two nations relative to the non-execution of the treaty of peace, which has been wisely consigned to oblivion by the treaty of 1794; and therefore it would very improperly be stirred, even if any such cir­cumstances existed before the national arbitrators: But if it is, the agent for the United States reserves to himself the privilege of a copious and thorough disquisition. With respect to interest during the war, on debts of this kind, an additional argument to what has been urged on this head, ought not to be omitted. The creditors and their factors left Vir­ginia and carried away their books and vouchers, and were inaccessable to the debtors 'till the return of peace. The place of payment was in Virginia, and the debtors were not bound to pay while there was no person there to receive payment; and this alone ought to discharge the claim of interest during the war, in cases of this kind. So it has been judicially determined in the court of appeals of Virginia, in the case of M'Call, vs. Turner. No. 1. A manuscript re­port of which case, taken by one of the able and ju­dicious counsel of that court, is annexed for the sa­tisfaction [Page 64] of the commissioners.William Cun­ningham and company, list A. If it be alledged that this absence was occasioned by the law of Virginia, and therefore the creditor ought not to suffer by rea­son of this conduct; It is answered that on the first day of January, 1776, the Parliament of Great Bri­tain had prohibited all intercourse between the two countries, and it was not 'till the third day of Janu­ary 1777, after allowing all persons to choose their sides in the war, that any persons were ordered out of the Commonwealth. Before this time, many had voluntarily gone, and only such of those who re­mained were ordered away, who had given proofs of their disaffection to the cause of America. It was there­fore their own act, their preference to the cause of Great Britain that occasioned their dismission. Under such circumstances it was moderation, laudable mo­deration, on the part of Virginia, to permit or direct them to be absent. They who were friendly to the American side, and preferred to stay, were permitted to do so: Therefore, every individual may be said to have been left freely to follow his own choice. A copy of the proclamation on this subject is also here­to annexed. No. 2.

Some general observations relative to those cases of book-debts which are not sanctioned by judicial determinations, if any such can be cognizable by the commissioners, will conclude what was intend­ed to be said relative to list A. It is deemed reasona­ble that the books containing the original entries should be exhibited to an authorized agent for the United States, with leave to take copies of any [Page 65] thing material to the claim in such cases as shall be advised unless they are produced to the commission­ers.William Cun­ningham and company, list A.

That each account shall state the dates and arti­cles of debit and credit, shewing when and how the balance that is claimed has arisen in each parti­cular case.

That the books themselves be shewn to the com­missioners, unless in those particular cases where consistently with justice, this rule may be suspend­ed.

And lastly, that the best proof be required of the justice of the original debt that the nature of the case admits, so as to guard effectually against at­tempts to defraud the United States. It is for this end that judgments against the original debtors should be required to precede applications to the board, unless some good reason in any particular case is offered as the excuse. It is remarkable that no proof has been yet produced of any of the debts contained in this list.


This list contains only five cases,List B. of which one ap­pea [...] to be on a judgment in February 1774, and the rest on bonds. Why was not the judgment car­ried into execution before the war? is an obvious question—Was the debtor then insolvent? This may be supposed, and surely if this was the fact, the United States cannot possibly be liable in this or any [Page 66] such instance.William Cun­ningham and company, list B. Thomas Gordon the agent for the claimants, has subjoined a remark which applies to each list, that each is characterized agreeable to a list in 1775. A doubt arises on the meaning of this phrase. If understood to mean among other things the solvency or insolvency of the debtors in 1775 it is hoped that those that are stated then to have been doubtful shall be excluded, unless solvency shall be actually and satisfactorily proven subsequent to the peace, as well as all the other requisites that have formerly in the general argument been urged to be indispensable to entitle a claim to redress under the treaty of 1794. Those which are then represented to be good, it is insisted ought to be proved to have continued good on the third day of September 1783 when the treaty of peace was concluded. And on this occasion it is repeated that wherever the insol­vency happened before the date of the treaty of peace, no circumstances can bring any loss arising from thence within the meaning of the 6th article of the treaty of 1794. It would be tedious to reiterate the arguments which already have been adduced and which are almost all applicable to the debts descri­bed in this list; and because they are not again dis­tinctly pressed they are not to be supposed in any manner waived. One observation relative to interest during the war must however be here mentioned. By the municipal law of Virginia of an ancient standing, it is enacted ‘That in all actions which shall be brought upon any bond or bonds for the payment of money wherein the plaintiff shall re­cover, judgment shall be entered for the penalty of such bond to be discharged by payment of the [Page 67] principle and interest due thereon and the costs of suit.’ Virginia laws page 181.William Cun­ningham and company, list B. By the terms of this act as adjudged and practiced in Virginia, it is the duty of the jury to ascertain the interest due on a bond, who are to consider all circumstances that in equity ought to cause any abatement or deduction. A contrary opinion was however once expressed in the case of Jones' executors vs. Hylton by the chief justice of the United States on the meaning of this act, who thought where the debt was evidenced by a bond, that the jury had no power over the interest but it accrued of course. This opinion, though proceeding from a most respected judge, was never approved by the bar or bench of the state of Vir­ginia, and a different interpretation has prevailed there. This matter is explained in order that the opinion of the chief justice may not improperly in­fluence the question, whether in equity interest dur­ing the war is payable. It was not on principles of equity but on the statute of Virginia strictly consi­dered that the opinion was expressed which with great deference to the able and learned Judge, has been generally deemed erroneous. The case of M' Call vs. Turner is in point and expresses the unani­mous judgment of the court of appeals in that state.


All the debtors in this list are stated to be solvent now,List C. and the only claim that can at any time be made against the United States in these instances, will be for interest during the war and the supposed difference in the current money of Virgia when the debts were contracted and at the time they may be [Page 68] paid.William Cun­ningham and company, list C. Upon these heads nothing new will be attempt­ed to be advanced, but they are submitted to the de­cision of the commissioners on the arguments which have been adduced. In the present situation of these it is evident there can be no award in favor of the claimants.


List D.The debtors in this list are distinguishable into two classes.

1st. Those who it is alledged are deceased, and whose property has been divided or squandered.

2dly. Those who it is alledged have removed du­ring the existence of some legal impediments, and whose residence and circumstances are unknown.

Respecting both it is contended that the Claimants should set forth, and prove too, all the facts and cir­cumstances belonging to each debtor which are ma­terial for doing justice in the particular case between the Claimant and the United States. Vague and un­certain declarations of losses are inadmissable.

As to the 1st Class, though the debtor is deceased and his property has been divided, it does not follow that the United States are to be awarded to pay the debt. By the laws of Virginia the personal proper­ty of the deceased is liable in the hands of his repre­sentatives to pay all his debts, and the lands and real property of the deceased are liable in the hands of his heirs or devisees to pay his specialty or judgment debts: Therefore, though divided, the estate may and ought to be pursued by the Creditor. Virginia [Page 69] Laws, Revisal of 1793, page 54. Nor,William Cun­ningham and company, list D. though the estate has been squandered either by the deceased in his life time or by his representative, does it follow that the United States are to be awarded to pay the debt. If the Creditor has neglected for a long time to prosecute the debtor or his representative, when he might have prosecuted them, and in this interval the estate has been wasted, the loss ought to remain with the Creditor for his wilful laches.

Respecting the 2d class. It has been denied that any legal impediment to the recovery of the British debts existed in Virginia since the peace. The trea­ty of peace repealed all acts anterior to it, which created any such impediments, and no laws of that kind were passed posterior to it, unless the continu­ance of the acts of May and October 1782, 'till July 1784, be said to be one.

This point the agent for the United States hopes, with confidence, has been fully and satisfactorily pro­ven to the board, and to his former arguments he prays leave to refer. Then the short space of a few months, viz.—From the third of September 1783 to the sixth of July 1784 was the utmost space that any impediment existed in Virginia, and during this pe­riod very few debtors, if any, removed out of that state into parts unknown. The damage arising from this source if any, must consequently be very incon­siderable, and it is therefore reasonable that every in­dividual case of this kind should be explained and made out by sufficient proofs. Surely the removal of a debtor from one county to another in the same [Page 70] state,William Cun­ningham and company, list D. will not form any subject of complaint. In list D, it will be proper for the claimants to discrimi­nate each case according to the foregoing ideas, and 'till it be done, the claim founded on it, is too loose, indefinite and confused to admit of any redress. Besides, let it be observed, that the onus probandi being on the claimants, it is more especially necessary in claims, such as are founded on debts situate a [...] those are said to be, which are contained in list D, there should be complete proof of every essential par­ticular for bringing the claim within the treaty.


List E.This embraced losses said to be in consequence of de­ductions of interest during the war by the juries who decided the causes, and losses said to arise from the dif­ference of currency when the debts were contracted and when they were paid. The latter shall be left in the point of view in which it has been placed. Relative to the former, in addition to the arguments already used upon this head, let it be remembered that the trial of the causes in the courts of justice, was in the same form and under the same laws which were in force before the war. The contracts were made subject to the discretion of juries and courts, as to the allow­ance or disallowance of interest in all cases in Virgi­nia, however evidenced, whether by bond, bill, note or book account. No new law was introduced on this subject, and therefore this conduct of juries or courts cannot be truly represented as a legal impedi­ment in the contemplation of the treaty of 1783. The legal impediments meant to be removed by it were such as had originated subsequent ta the com­mencement [Page 71] of hostilities.William Cun­ningham and company, list E. These contracts have been carried into effect and satisfied according to the laws in force when they were made. This is all that jus­tice could or can require. Can it be right to con­strue the treaty as repealing any laws that were in force at the time the debts were contracted? Or can it be understood to require the institution of new laws or a new mode for deciding upon and recover­ing debts contracted before the war? If, there­fore, the deduction of interest has been regu­larly and justly made by the competent tribunal according to ancient laws, no ground is perceived for makings this the basis any claim against the United States. The deduction of interest so made if to be called a loss is manifestly a loss occasioned not by any legal impediments created since the 4th July 1776, but occasioned by other causes that would equally have operated to produce it, if there had been no legal impediments since the peace in Vir­ginia. If this be admitted to be correct it follows that it is expressly excluded from the provision of the 6th article of the treaty of 1794, and that no award can be made against the United States for compensation of interest that is deducted by the com­petent tribunal in the ordinary course of proceeding, according to ancient usage and laws. The claim therefore grounded on the cases in list E ought to be disallowed on this principle, if no other objection had been brought against them.

The agent for the United States having made these observations on the particular case before the board,Conclusion. prays their serious attention to the general principles which he has endeavored to maintain in [Page 72] the course of his argument.Conclusion. Such of them as are satisfactorily supported he trusts will be applied with discernment and candour to the variety of questions that arise in this case or that may arise in any other which shall come under their notice. A recapitula­tion of them is not necessary, and may the more readily be spared in an argument which has been so far extended as to be in danger of being thought tedious.

All which is most respectfully submitted. JOHN READ, Jun. Agent General for the United States.



WHEREAS the king of Great-Britain hath waged war against this commonwealth and the United States of America, and there are within this commonwealth divers merchants and others, sub­jects of the said king, who while they remain here, have frequent opportunities of seducing and corrupt­ing the minds of the people, and are suspected of holding correspondence with and giving intelligence to the enemy: I have therefore thought fit, by and with the advice of the Privy Council, to issue this my Proclamation, in the name of the commonwealth; hereby strictly requiring and enjoining all the natives of Great-Britain, who were partners with, factors, agents, storekeepers, assistant storekeepers or clerks [Page ii] here, for any merchant or merchants in Great-Bri­tain, on the first day of January 1776, the time the act of the British Parliament for restraining the trade of America, and seizing our property upon the wa­ter, took place, to depart this commonwealth, with their goods, within forty days from the date hereof, except such of the said natives as have heretofore uniformly manifested a friendly disposition to the American cause, or are attached to this country by having wives or children here, agreeable to a reso­lution of the General Assembly in that case made, and to the statute staple of the 27th of Edward 3d. chapter 17th. in conformity to which, I do hereby notify to all such persons that they are at liberty, in the mean time, to sell and dispose of their goods and merchandize to any person or persons who shall be willing to purchase the same.


To JOHN READ, ESQUIRE, Agent for the United States, relative to claims of British subjects, under the sixth article of the trea­ty of 1794, between the United States of America and Great-Britain.


THE claim of William Cunningham and compa­ny, contained so many important principles necessary to be decided by the commissioners, that in prepar­ing an answer to it, I thought it best to make a tho­rough examination of the subject which the treaty has referred to them. The answer you will be pleas­ed to file, and in other claims which embrace any of the matters that have been here discursed, it will be convenient and save much trouble to refer in a pro­per manner to the arguments which have been urged in this case.

I am very respectfully sir, Your most obedient servant, CHARLES LEE.





TO THE COMMISSIONERS For carrying into Effect the Sixth Article of the Treaty of Amity, Commerce, and Navigation, concluded between His Britannic Majesty and the United States of America, the nineteenth Day of November, 1794.

IN Conformity to the following resolution of the Board, William Cun­ningham and Co. will proceed to reply to such parts of the answer filed on behalf of the United States, to their Claim, as shall require repli­cation; and they respectfully trust and believe, that on a calm, and full investigation of the different objections urged against their claim, they will be found void of any solid foundation, either in justice, equity, or even law.


In the Case of WILLIAM CUNNINGHAM, and others.

THE Answer of the United States, signed by their Agent, having in this case been printed and laid before the board,—Ordered, that the General Agent for claimants, or Attorney for these claimants, have leave to see and reply to the same within three weeks; but with the exception of the introductory argument "to impres [...]on the Commissioners (as it is there said) the primary importance of understanding the limits" of their duty, and instructing them, on the authority of Vattel, and with referrence to a supposed [...]e, of manifest and intentional wrong, in the expediency of taking care that they do not "renew the dissentions between the two nations," by deciding in a manner so palpably "absurd," or so clearly [Page 4] proceeding from "corruption, or flagrant partiality," as to entitle "ei­ther nation to disregard the award." The Board make no further animadversion on the above argument than thus to state its import, and prohibit all allusion to such topics in future. They know no policy but that of justice, and look forward to no consequence but the consciousness of having done their duty.

Ordered, that the Reply in this case be printed; that this Order be therein fully recited, and copies hereof served upon the Agents for both parties.

Extract from the Proceedings of the Board,
To WILLIAM MOORE SMITH, Esqr. General Agent for Claimants.

FOR the sake of order and method the Claimants will pursue a different course of ar­gument in their Reply, from that adopted in the Answer to their claim—For if the doctrine, (to them so strange) "that no legal impediments to the recovery of their debts existed in Virginia since the peace" be really well founded, every other discussion will be vain and useless.

This claim was intended "to submit to the decision of the Board most of the principles relative to the debts within the State of Virginia, of which payment may be claimed, under the treaty of 1794, from the treasury of the United States." In order to bring these forward with as much expedition, and at as small expence and trouble as possible, the claimants at large, were advised by their General Agent to select that list of balances which contained the fewest names, and to class the several debtors agreeably to a form prescribed.—It was not thought absolutely necessary, that the list so selected should contain at least one case under every different head of impediment, especially as a claim on account of a treasury payment had been filed, and in part argued before the Board— The list selected, does embrace nearly every other case upon which a question of impor­tance can arise. It was therefore expected, and if the claimants are correct in their recollection, it was agreed, that every point should be argued, in order, that after the long delay which had unfortunately tho' unavoidably taken place, as many principles as possible, should be settled by a decree in a single claim, which would enable other claimants so to prepare their different memorials, that all their tenable demands might be arranged under their proper heads, and the class or classes which might be determined untenable, abandoned or omitted.

[Page 5]The form in which the Answer in this case appears, and the direction that the re­plication have equal publicity, must be the apology for a repetition in many instances of, instead of a reference to, the arguments in other cases—the Answer does not appear to demand very much new matter in the Reply.

The claimants would not have thought it altogether justifiable, for them, in reasoning upon the plain words of a written instrument, to draw inferences from the correspon­dence or conversation of ministers, in order to extend or narrow down the evident and natural meaning of those words,—a mode of argument however which has been adopt­ed in one case on one side, may be pursued in other cases on the other side—and as the example has been given, it will be followed.—Mr. Jefferson's letter to Mr. Ham­mond has also been cited with much approbation, in the Answer on behalf of the United States to this claim; in that letter the opinions of members of the two British Houses of Parliament are quoted, to shew the idea that nation entertained of the effect of recommendations of Congress.—In this Reply the opinions of the most conspicuous mem­bers of several deliberative bodies in the United States will be resorted to, to show the ideas Americans entertained of impediments—Decisions in English courts have been re­lied upon in the Answer—Decisions in American courts will be brought forward in the Reply.

It is asserted, "that no legal impediments to the recovery of British debts, contracted be­fore, existed after, the peace, in the State of Virginia; and, if some laws of that State bore the complexion of impediments, they were ipso facto repealed by the treaty.

In order to form a true judgment upon these positions, it is necessary to examine into the powers of Congress previous to the articles of confederation; the authorities vested in them by that instrument, and whether they ever possessed the means of en­forcing obedience to resolutions, decrees, ordinances or compacts, passed or entered in­to by them, within the undoubted limits of that authority!

‘The powers of Congress were revolutionary in their nature, arising out of events, adequate to every national emergency, and co-extensive with the object to be at­tained. Congress was the general, supreme, and controuling council of the nation, the centre of union, the centre of force, and the sun of the political system. To de­termine what their powers were, we must enquire what powers they exercised. Con­gress raised armies, fitted out a navy, and prescribed rules for their government: Congress conducted all military operations both by land and sea: Congress emitted bills of credit, received, and sent Ambassadors, and made treaties: Congress com­missioned privateers to cruise against the enemy, directed what vessels should be lia­ble to capture, and prescribed rules for the distribution of prizes. Those high acts of sovereignty were submitted to, acquiesced in, and approved of, by the people of A­merica. In Congress were vested, because by Congress were exercised with the approba­tion of the people, the rights and powers of war and peace. In every government, whether it consist of many states, or of few, or whether it be of a federal or consoli­dated nature, there must be a supreme power or will; the rights of war and peace are component parts of this supremacy, and incidental thereto is the question of prize. —The question of prize grows out of the nature of the thing. If it be asked, in whom, during our revolution war, was lodged, and by whom was exercised this su­preme authority? No one will hesitate for an answer. It was lodged in and exerci­sed by Congress; it was there or no where; the States individually did not, and with safety could not, exercise it. Disastrous would have been the issue of the contest, if the states, seperately, had exercised the powers of war. For in such case, there would have been as many supreme wills as there were States, and as many wars as there were wills. Happily, however, for America, this was not the case; there was but one war, and one sovereign will to conduct it. The danger being imminent and common, it became necessary for the people or colonies to coalesce and act in concert, in order to divert or break the violence of the gathering storm; they accordingly grew into union, and [Page 6] founded one great political body, of which Congress was the directing principle and soul. As to war and peace, and their necessary incidents, Congress, by the unanimous voice of the people, exercised exclusive jurisdiction, and stood, like Jove, amidst the Deities of old, paramount, and supreme. The truth is, that the States individually were not known nor recognized as sovereign by foreign nations, nor are they now? the States collectively, under Congress as the connecting point, or head, were acknowledged by foreign powers as sovereign, particularly in that acceptation of the term, which is applicable to all great national concerns, and in the exercise of which, other sove­reigns would be more immediately interested; such, for instance, as the rights of war and peace, of making treaties, and sending and receiving Ambassadors. Besides, every person must be amenable to the authority, under which he acts. If he accept from Con­gress a commission to cruise against the enemy, he must be responsible to them for his conduct. If under colour of such commission, he had violated the law of nations. Con­gress would have been called upon to make atonement and redress. The persons who exercise the right or authority of commissioning privateers, must, of course, have the right or authority of examining into the conduct of the officer acting under such com­mission, and of confirming or annulling his transactions and deeds.’ (Judge Patterson in the case Penhallow and others against Doane's Admrs. Sup. Court. U. S. Feb. 1795.)

The following brief state of the case in which the above opinion was delivered, is abridged from the Judge's statement:

On the 25th Nov. 1775, Congress (1 journ. 259) passed a series of resolutions respecting captures, and recommended it to the different colonies, to erect courts for the trial of such as should be made, reserving in all cases an appeal to Congress, or such persons as they should appoint for the trial of appeals.

On the 23d of March, 1776, they resolved, that the inhabitants of the Colonies be per­mitted to fit out armed vessels to cruise on the enemies of the United Colonies, and a few days after, they agreed upon the form of a commission to the commanders of private ships of war, which was to run in the name of the Delegates of the United Colonies, and be signed by the President of Congress.

On the 3d July, 1776, New-Hampshire passed an act for the trial of captures, and allowed in certain cases an appeal to Congress, and in others to the Superior Court of the State.

On the 30th of Jan. 1777, Congress appointed a standing Committee of Appeals.

In October, 1777, the brigantine Susanna was captured by an armed vessel belonging to Penhallow and others, citizens of New-Hampshire—she was libelled in the Maritime Court of New-Hampshire, and a claim filed on behalf of Doane and others, citizens of Massachusetts—On the 16th of December, 1777, she was condemned—An appeal to Con­gress was in due time demanded and refused, because contrary to a law of the State—An appeal was then pray'd by the claimants to the Superior Court of New-Hampshire and allowed—and in September, 1778, a judgment of condemnation was also rendered in that court—The claimants in due time demanded an appeal to Congress, tender'd se­curity to prosecute the appeal to effect, and the same was lodged in Congress within the proper time after the definitive sentence was pronounced.

On the 9th of October, 1778, a petition from Elisha Doane was read in Congress, ac­companied with the proceedings in New-Hampshire, and praying an appeal—this was referred to the Committee of Appeals (4 journal, 586.)

On the 26th of June, 1779, the Commissioners of Appeal gave their opinion that they had jurisdiction of the cause.

[Page 7]By the articles of Confederation dated the 19th of July, 1778, ratified the 1st of March, 1781, Congress were vested with the s [...]e and exclusive power of establishing courts for finally determining appeals in cases of capture, and in consequence thereof they did erect such court, and resolved, that all matters respecting appeals in cases of capture then depending before Congress, or the Commissioners of Appeals, should be referred to the newly erected Court of Appeals, to be there adjudged and determined according to law.

In the month of September, 1783, the Court of Appeals, before whom the parties ap­peared by their advocates, did after a full hearing and solemn argument finally adjudge and decree, that the sentences of the inferior and superior courts of New-Hampshire should be reversed, and the property restored.

Here the cause rested till the adoption of the existing Constitution of the United States, except an ineffectual struggle before Congress on the part of New-Hampshire, and an unavailing experiment at common law, to obtain redress on the part of the appellants.

From the foregoing statement, William Cunningham & Co. think, that they are not going too far in saying, that there the cause would have rested forever, had it not been for the present judiciary system of the United States.—Fortunately however, that system was established, the time arrived when theory could be reduced to practice, when imbe­cility was succeeded by energy, when impartial justice could not only pronounce her decision, but enforce its execution, and in the year 1795, the representative of Doane heard a decree in his favour from the highest tribunal in America, prefaced with this honest and correct sentiment— ‘Judges may die, and Courts be at an end; but Justice still lives, and though she may sleep for a while, will eventually awake, and must be satisfied.’

Another instance:

In the case of the sloop Active, in the Admiralty of Pennsylvania, the jury found a verdict which was confirmed by the Judge, and sentence passed thereon—An appeal was lodged and referred by Congress to the Committee of Appeals—the Committee reversed the sentence, making a new decree, and ordering process out of the Court of Admiralty of Pennsylvania, to carry this their decree into execution.

The Judge of the Court of Admiralty refused to carry into execution the decree of the Committee on Appeals, and assigned as the reason of his refusal, that an act of the Legisla­ture of the State has declared, that the finding of a jury shall establish the facts in all trials in the Court of Admiralty without re-examination or appeal, and that an appeal is permitted only from the decree of the Judge.

This business was agitated in Congress, and it was "Resolved, That Congress, or such persons as they appoint, to bear and determine appeals from the Courts of Admiralty, have necessarily the power to examine, as well into decisions on facts, as decisions on the law, and to decree finally thereon, and that no finding of a jury in any Court of Ad­miralty, or Court for determining the legality of captures on the high seas, can or ought to destroy the rights of appeal, and the re-examination of the facts reserved to Congress:

That no act of any one State, can or ought to destroy the right of appeals to Congress in the sense above declared:

That Congress is by these United States invested with the supreme sovereign power of war and peace:

That the power of executing the law of nations is essential to the sovereign supreme power of war and peace:

[Page 8]That the legality of all captures on the high seas must be determined by the law of nations:

That the authority ultimately and finally to decide on all matters and questions touching the law of nations, does reside, and is vested in the sovereign supreme power of war and peace:

That a controul by appeal is necessary, in order to compel a just and uniform exe­cution of the law of nations:

That the said controul must extend, as well over the decisions of juries as Judges, in courts for determining the legality of captures on the sea; otherwise the juries would be possessed of the ultimate supreme power of executing the law of nations in all cases of captures, and might at any time exercise the same in such manner, as to prevent a possibility of being controuled; a construction which involves many inconveniences and absurdities, destroys an essential part of the power of war and peace entrusted to Congress, and would disable the Congress of the United States, from giving satisfaction to foreign nations complaining of a violation of neutralities, of treaties or other breaches of the law of nations, and would enable a jury in any one State, to involve the United States in hostilities; a construction, which for these and many other reasons, is inadmissible.

That this power of controuling by appeal the several admiralty jurisdictions of the States, has hitherto been exercised by Congress, by the medium of a Committee of their own Members.

That the Committee who determined the appeal from the Admiralty of Pennsylvania was duly constituted. The Congress then

"Resolved, that the said Committee had competent jurisdiction to make thereon a final decree, and therefore their decree ought to be carried into execution."

The powers above claimed by Congress, were most absolutely and essentially necessary to be vested somewhere in confederated Republics, as well as in single States and Monar­chies. The supreme power of the confederation was the only place in which they could be lodged. The safety of all the States as well as of each individual State, irresistibly required it; and the deductions drawn by Congress from the necessary and acknowledged possession of the power, flow too palpably to admit of contradiction. All this the Judge of the Admiralty of Pennsylvania knew, as well as Congress. But there was a collisio legum. Congress the supreme power of the whole had reserved the right of deciding on appeals in all cases of capture: The law of Pennsylvania had declared the finding of a jury to be final. That law was not inconsistent with the Constitution of the State. The Judge of the State court was bound by his oath, to decide according to the law of the State: He was not to declare a new law; he was not to determine whether the par­tial appeal was politic or impolitic: He could only say, this act is my authority; my oath and conscience are my monitors: And this Congress knew as well as the Judge. What then did Congress do? Had they the means of enforcing the decree of their committee? Could they compel the inferior to bend to the superior court? They did all in their power.—

They resolved,

"That the General Assembly of the State of Pennsylvania be requested to appoint a committee to confer with a committee of Congress, on the subject of the proceedings relative to the sloop Active, and the objections made to the execution of the decree of the Committee on Appeals, to the end that proper measures may be adopted for removing the said obstacles: And that a committee of three be appointed to hold the said confer­ence with the committee of the General Assembly of Pennsylvania, (5 journals, 86 to 90.)

Pennsylvania appointed a committee to confer accordingly, and the following reso­lutions passed the House of Assembly as directions to that committee.

[Page 9]MARCH 10, 1779. P. M.

Resolved 1st. That "the power of establishing courts for receiving and determining finally appeals in all cases of captures". is reserved in Congress by the articles of Con­federation: And as the State of Pennsylvania has acceded to those articles, this house esteem it their duty to adopt such regulations, consistent with the principles of the Con­federation, as Congress may judge necessary for the due exercise of the said power.

2dly. That by an act of this Commonwealth for establishing a Court of Admiralty, it is declared and enacted, that the finding of the jury shall establish the facts without re-examination or appeal; and that the said act is not repugnant to, but consistent with the resolutions of Congress of 25th Nov. 1775.

3dly. That the proceedings in the case of the sloop Active were founded on the aforesaid act of Assembly, which, together with the said resolve, form the true ground whereupon the decision of the contested points should be made, without involving a con­sideration of the necessity or propriety of future alterations or amendments.

It need only be added, that the Legislature the next year amended their Admiralty law, directed that cases of capture should be decided agreeably to the law of nations and acts of Congress; that the proceedings should be according to the course of the civil law, and an appeal in all cases given to Congress.

From the foregoing cases it is evident, that whenever any difference arose between the Superior Court of Congress and the Inferior Court of the State, the advantage was on the side of the State Court; that when in the lower court, a State law came in op­position to the act, ordinance, or resolve of Congress, the latter was obliged to yield to the former: In fine, that although Congress appeared to possess extensive powers, they could carry nothing into effect, when opposed by the laws and courts of individual States; in theory they had every thing, in practice nothing.

Were the real powers of Congress increased by the adoption of the articles of Confe­deration?—It is contended their power in making treaties was diminished. Congress had declared the States independent;—the States individually formed Constitutions for themselves;—the Constituted Authority in each State sent their Delegates to Congress, to consult and act for the general good;—thus sent with undefined powers, the only na­tural conclusion was, that their authority must be commensurate to the object of their ap­pointment:—"He who wills the end, wills also the means by which that end should be accomplished." Under the impression of having the fullest powers for that purpose, Congress entered into and ratified treaties with France;—but this power, is (by the strongest implication) considered in a less extensive point of view in the articles of Confede­ration. There each State reserves its own sovereignty, and every power not expressly delegated to Congress; and so far were the States from allowing that Treaties were the Law of the Land, that a clause was inserted, that ‘No State should lay imposts or duties to interfere with any stipulations in Treaties, entered into by the United States, in Congress assembled, with any King, Prince, or State, in pursuance of any Treaties already proposed by Congress to the Courts of France and Spain:’ And in the 9th article, in which the power of entering into Treaties is delegated, the power of establishing rules for deciding in cases of capture is given, but with this remarkable difference, that all the important rights of foreigners, however secured by Treaty, all the numerous questions on the law of nations arising out of Treaties, are left to be decided as many different ways as there may be courts; and in many instances the national faith, character, honor and peace, committed to the general verdicts of uninformed juries, while a dispute about a cock-boat could be carried to a Court of Appeals appointed by Congress.

[Page 10]The imperfections of a system formed in a time of general commotion, became day by day more visible. The public inconveniences arising from them were severely felt after the peace; amendments were constantly called for, and at last, the voice of the Continent, upon the subject of the imbecility of the Confederation, became too loud and powerful to be resisted. A Convention was called to amend the article. They found it easier to build up a new system than patch the old one. A new Form of Go­vernment was agreed upon, and submitted to the different States for adoption or rejection.

That valuable instrument had its friends and opponents in all the States. In none was it more strenuously opposed, or more ably supported than in Virginia; and to no part of it was the opposition more pointed, than that which made Treaties the Law of the Land.

The opinions and declarations of some of the ablest characters is the Union on that important occasion will be quoted, not as authorities to extend or narrow any word in a Compact, but as irresistible proof of the general sentiment of America, respecting the po [...] of Congress, under the Confederation, and of the infractions of the Treaty of Peace. The celebrated author of the Federalist, a work which has been cited with respect in the Supreme Court of the United States, says, (vol. 1. p. 87.)

In pursuance of the plan which I have laid down, for the discussion of the subject, the point next in order to be examined, is the ‘insufficiency of the present confederation to the preservation of the union.’ It may perhaps be asked, what need is there of reason­ing or proof to illustrate a position, which is neither controverted nor doubted; to which the understandings and feelings of all classes of men assent; and which in substance is ad­mitted by the opponents as well as by the friends of the new constitution?—It must in truth be acknowledged, that however these may differ in other respects, they in general appear to harmonise in this sentiment at least, that there are material imperfections in our national system, and that something is necessary to be done to rescue us from impe [...]ing anarchy. The facts that support this opinion are no longer objects of speculation. They have for­ced themselves upon the sensibility of the people at large, and have at length extorted from those, whose mistaken policy has had the principal share in precipitating the extre­mity at which we are arrived, a reluctant confession of the reality of many of those de­fects in the scheme of our federal government, which have been long pointed out and regretted by the intelligent friends of the union.

We may indeed, with propriety, be said to have reached almost the last stage of national humiliation. There is scarcely any thing that can wound the pride, or degrade the cha­racter of an independent nation, which we do not experience. Are there engagements to the performance of which we are held by every tie respectable among men? These are the subjects of constant and unblushing violation. Do we owe debts to foreigners and to our own citizens, contracted in a time of imminent peril, for the preservation of our political existence? These remain without any proper or satisfactory provision for their discharge. Have we valuable territories and important posts in the possession of a foreign power, which by express stipulations ought long since to have been surrendered? These are still retained to the prejudice of our [...] rests not less than of our rights. Are we in a con­dition to resent, or to repel the aggression? We have neither troops, nor treasury, nor government, (for the Union.) Are we even in a condition to remonstrate with dignity? The just imputations on our own faith, in respect to the same treaty, ought first to be removed.

[...], page 140.

[...] which crowns the defects of the confederation, remains yet to be [...] [...]iciary power. Laws are a dea [...] le [...] without courts to [...] [...]ing and operation. Th [...] [...] United States, [Page 11] to have any force at all, must be considered as part of the law of the land. Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations. To produce uniformity in these determinations, they ought to be submitted in the last resort, to one SUPREME TRIBUNAL: And this tribunal ought to be instituted under the same authority which forms the treaties themselves. These in­gredients are both indispensible. If there is in each state a court of final jurisdiction, there may be as many different final determinations on the same point, as there are courts. There are endless diversities in the opinions of men. We often see not only differing courts, but the judges of the same court differing from each other. To avoid the confusion which would unavoidably result from the contradictory decisions of a num­ber of independent judicatories, all nations have found it necessary to establish one court paramount to the rest, possessing a general superintendence, and authorised to settle and declare in the last resort, an uniform rule of civil justice.

"This is the more necessary where the frame of the government is so compounded, that the laws of the whole are in danger of being contravened by the laws of the parts. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from difference or opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. As often as such an interference was to happen, there would be reason to apprehend, that the provisions of the particular laws might be prefered to those of the general laws; from the deference with which men in office naturally look up to that au­thority to which they owe their official existence. The treaties of the United States, under the present constitution, are liable to the infractions of thirteen different legisla­tures, and as many different courts of final jurisdiction, acting under the authority of those legislatures. The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every mem­ber of which it is composed. Is it possible that foreign nations can either respect or con­fide in such a government? Is it possible that the people of America will longer consent to trust their honour, their happiness, their safety, on so precarious a foundation?"

And in vol 2. page 304.

"If there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed."

Before the Claimants proceed to shew from the debates in the Virginia convention on the adoption of the federal constitution, the sentiments of some of the best informed ci­tizens of that State, they request permission to refer to the opinions of two celebrated Jurists in Pennsylvania on the same occasion. The high character and official stations of the Speakers give great weight to what fell from them.

Mr. Wilson, at present one of the Judges of the Supreme Court of the United States, expresses himself in this manner. (Penn. Deb. 36.)

"Need I call to your remembrance the contrasted scenes of which we have been wit­nesses? On the glorious conclusion of our conflict with Britain, what high expectations were formed concerning us by others! what high expectations did we form concerning ourselves! Have those expectations been realized? No. What has been the cause? Did our Citizens lose their perseverance and magnanimity? No. Did they become insensible of resentment and indignation at any high-handed attempt, that might have been made to injure or enslave them? No. What then has been the cause? The truth is, we dread­ed [Page 12] danger only on one side: This we manfully repelled. But on another side, danger, not less formidable, but more infidious, stole in upon us; and our unsuspicious tempers were not sufficiently attentive, either to its approach or to its operations. Those, w [...] foreign strength could not overpower, have well nigh become the victims of internal a­narchy.

"If we become a little more particular, we shall find that the foregoing representation is by no means exaggerated. When we had baffled all the menaces of foreign power, we neglected to establish among ourselves a government, that would ensure domestic vigour and stability. What was the consequence? The commencement of peace was the com­mencement of every disgrace and distress, that could befal a people in a peaceful state. Devoid of national power, we could not prohibit the extravagance of our importations, nor could we derive a revenue from their excess. Devoid of national importance, we could not procure, for our exports, a tolerable sale at foreign markets. Devoid of nati­onal credit, we saw our public securities melt in the hands of the holders, like snow, be­fore the Sun. Devoid of national dignity, we could not in some instances, perform our treaties, on our parts, and in other instances, we could neither obtain nor compel the performance of them on the part of others. Devoid of national energy, we could not carry into execution our own resolutions, decisions or laws."

And again (ib. 96.) speaking of the judiciary:

"The judicial power extends to all cases arising under treaties made, or which shall be made, by the United States. I shall not repeat, at this time, what has been said with regard to the power of the States to make Treaties; it can not be controverted, that when made, they ought to be observed. But it is highly proper that this regulation should be made; for the truth is, and I am sorry to say it, that in order to prevent the payment of British debts, and from other causes, our treaties have been violated, and violated too by the express laws of several States in the Union. Pennsylvania, to her honor be it spoken, has hitherto done no act of this kind; but it is acknowledged, on all sides, that many States in the Union have infringed the treaty; and it is well known, that when the Minister of the United States made a demand of Lord Carmar­then, of a surrender of the Western Posts, he told the Minister, with truth and justice, ‘The treaty, under which you claim those possessions, has not been performed on your part: Until that is done, those possessions will not be delivered up.’ This clause, Sir, will shew the world, that we make the faith of treaties a constitutional part of the character of the United States; that we secure its performance no longer nominally, for the Judges of the United States will be enabled to carry them into effect, let the le­gislatures of the different States do what they may."

And in another page (131.)

"I stated on a former occasion one important advantage; by adopting this system, we become a nation; at present we are not one. Can we perform a single national act? Can we do any thing to procure us dignity, or to preserve peace and tranquillity? Can we relieve the distress of our citizens? Can we provide for their welfare or happi­ness? The powers of our government are mere sound. If we offer to treat with a nation, we receive this humiliating answer, "You cannot, in propriety of language, make a treaty—because you have no power to execute it."

And Chief Justice M'Kean gives this as one of his leading reasons for adopting the Constitution, which he declares to be one of the best Systems the world has yet seen:

"You will encourage your allies to join with you; nay, to depend that what hath been stipulated, or shall hereafter be stipulated and agreed upon, will be punctually per­formed, and other nations will be induced to enter into treaties with you."

[Page 13]Mr. Maddison, in the Virginia Convention (1 vol. deb. 140) uses the following strong expressions:

"The Confederation is so notoriously feeble, that foreign nations are unwilling to form any treaties with us—They are apprised that our General Government cannot perform any of its engagements; but, that they may be violated at pleasure by any of the States. Our violation of treaties already entered into, proves this truth unequivocally."

Mr. Randolph, (at that time Governor of Virginia, and since Attorney-General, and afterwards Secretary of State for the United States) in answer to some observations of Mr. Henry on the Confederation, says,

"P [...] the meeting of the federal convention, says the honorable gentleman, we rest­ed in peace; a miracle it was, that we were so: Miraculous must it appear to those who consider the distresses of the war, and the no less afflicting calamities, which we suffered in the succeeding peace;—be so good as to recollect how we fared under the confederati­on. I am ready to pour forth sentiments of the fullest gratitude to those gentlemen who framed that system. I believe they had the most enlightened heads in this western hemis­phere:—Notwithstanding their intelligence, and earnest solicitude, for the good of their country, this system has proved totally inadequate to the purpose, for which it was devi­sed: But, Sir, this was no disgrace to them; the subject of confederations was then new, and the necessity of speedily forming some government for the States, to defend them a­gainst the pressing dangers, prevented, perhaps, those able Statesmen from making that system as perfect as more leisure and deliberation might have enabled them to do: I can­not otherwise conceive how they could have formed a system, that provided no means of enforcing the powers which were nominally given it. Was it not a political farce, to pretend to vest powers, without accompanying them with the means of putting them in execution? This want of energy was not a greater solecism than the blending together, and vesting in one body, all the branches of Government. The utter inefficacy of this system was discovered the moment the danger was over, by the introduction of peace: The accumulated public misfortunes that resulted from its inefficacy, rendered an altera­tion necessary; this necessity was obvious to all America: Attempts have according­ly been made for this purpose. I have been a witness to this business from its earliest be­ginning. I was honoured with a seat in the small Convention held at Annapolis. The members of that Convention thought [...]animously, that the controul of commerce should be given to Congress, and recommended to their [...]tat [...] to extend the improvement to the whole system. The members of the general Convention were particularly deputed to me­liorate the confederation. On a thorough contemplation of the subject, they found it impossible to amend that system: What was to be done? The dangers of America, which will be shewn at another time by a particular enumeration, suggested the expedient of forming a new plan: The confederation has done a great deal for us, we all allow, but it was the danger of a powerful enemy, and the spirit of America, Sir, and not a­ny energy in that system that carried us through that perilous war: For what were its best arms? The greatest exertions were made, when the danger was most imminent. This system was not signed till March 1781, Maryland having not acceded to it before: yet the military atchievements and other exertions of America, previous to that period, were as brilliant, effectual, and successful, as they could have been under the most energie Go­vernment. This clearly shews, that our perilous situation was the cement of our Union —How different the scene when this peril vanished, and peace was restored! The de­mands of Congress were treated with neglect. One State complained that another had not paid its quotas as well as itself. Public credit gone—for I believe were it not for the private credit of individuals we should have been ruined long before that time. Commerce languishing—produce falling in value, and justice trampled under foot. We became con­temptible in the eyes of foreign nations; they discarded us as little wanton bees who had played for liberty, but who had not sufficient solidity or wisdom to secure it on a perma­nent [Page 14] basis, and were therefore unworthy of their regard. It was found that Congress could not even enforce the observance of treaties."

The same Gentleman, who must be supposed acquainted with the laws of Virginia and the practice of its courts, and who cannot be suspected of a public slander upon his na­tive State, says, "The cry of peace is false. It is but a sudden calm; the tempest growls over you—look round—wheresoever you look you see danger. When there are so many witnesses in many parts of America, that Justice is suffocated, shall peace and happiness still be said to reign? Candour, Sir, requires an undisguised representation of our situation. Candour demands a faithful exposition of facts. Many citizens have found Justice strangled and trampled under foot, through the course of jurisprudence in this country. Are those who have debts due to them, satisfied with your government? Are not creditors wearied with the procrastination of your legal process? A process ob­scured by legislative mists."

If the above remarks are founded, (and the Claimants do not observe that they were contradicted,) if even citizens were thus impeded in the recovery of their just debts, what must have been the situation of British creditors?

Again, the same speaker says, (1 vol. deb. 84) "The debts due to the British are also very considerable. These have been withheld contrary to treaty." And in reply to Mr. Henry, who had answered him, he says, (p. 190) "The honorable gentleman has past by my observations with respect to British debts. He has thought proper to be silent on the subject. My observations must, therefore, have full force." The Claimants do not conceive that any member could contradict the assertion. The instrument then under consideration was dated Sept. 17, 1787. The act of Virginia of Dec. 12, 1787, and its suspending clause, was only six months old, and must have been too fresh in the memory of every one present, to admit of a contradiction.

Mr. Pendleton, the president of the Convention, says, "It was the spirit of Ame­rica, and not the Confederation, that carried us thro' the war. Thus I prove it; the moment of peace shewed the imbecility of the Federal Government. Congress were em­powered to make war and peace. A peace they made, giving us the great object, In­dependence, and yielding us a territory that exceeded my most sanguine expectations. Unfortunately, a single disagreeable clause, not the object of the war, has retarded the performance of the treaty on our part. Congress could only recommend its performance, not enforce it."

Mr. Nicholas, in urging the necessity of adopting the Constitution, says, (Deb. vol. 2, p. 43) "There is another point wherein this government will set them right; I mean the Western Posts. They have been withheld from us since the peace by the British. The violation of the treaty on our part, authorises this detention in some degree. The answer of the British Minister to our demand of surrendering the Posts, was, that as soon as America should shew a disposition to comply with the treaty on her part, that Great Britain should do the same. By this Constitution, treaties will be the supreme law of the land."

If other proof was wanting, in addition to these strong and uncontradicted acknowledg­ments, Congress have repeatedly declared their sentiments on the subject. It was in vain they asserted, that "a treaty made and published by them became obligatory on the whole nation." The assertion was a dead letter. They had no power to inflict penal­ties on infractions; no courts to carry their decrees into execution: It was in vain they recommended repeals of existing laws infringing the treaty; the days of common danger were over; the talisman that had once ensured respect to their ordinances, had lost its virtue, and their recommendations sounded as feebly in the south, as the voice of Justice in the ears of a dishonest and protected debtor.

[Page 15]The reasoning of the Author of the Federalist is so conclusive that the Claimants must beg leave to adopt it as their own.

"The case of Virginia is still stronger than that of South Carolina. There is e­vidence which cannot be disputed, that her courts, in defiance of the treaty, have con­stantly remained shut to the recovery of British debts, in virtue of laws passed during the War.

"An act of her general assembly of the 22d. June, 1784, after suggesting as breaches of the treaty by Great-Britain the carrying off of the Negroes, and the detention of the posts, after instructing her delegates in Congress to request a remonstrance to the British court, complaining of those infractions, and desiring reparation, and after declaring that the national honour and interest of the citizens of that Commonwealth, obliged the as­sembly to withhold their co-operation in the compleat fulfilment of the said treaty, until the success of the aforementioned remonstrance is known, or Congress shall signify their sentiments touching the premises, concludes with the following resolution:

"That so soon as reparation is made for the foregoing infraction, or congress shall judge it indisputably necessary, such acts and parts of acts passed during the late war, as inhibit the recovery of British debts, ought to be repealed, and payment thereof made in such time and manner, as shall consist with the exhausted situation of the common­wealth.

"The plain language of this resolution is, that there were acts passed during the war, which then actually inhibited the recovery of British debts, and that for the removal of this inhibition, a repealing act by the authority of Virginia was necessary.

"However unfounded this position might have been in theory, here is conclusive evi­dence that the fact in Virginia was conformable to it; that her courts had been, ever since the peace, then were, and until a repealing law was passed, were likely to continue to be shut against the recovery of British debts.—When testimony of this kind was urged by the British Minister, was it possible for our Envoy to make any solid reply; Who could be supposed to know better than the legislature of Virginia, the real state of the fact? When that legislature declared it to be as has been stated, who, or what could contradict it? With what truth has it been asserted, that "it was at all times perfectly understood" that treaties controuled the laws of the States?

"Additional proof of the contrary is found in the subsequent conduct of Virginia. On the 12th of December, 1787, the State passed an act, repealing all such acts or parts of acts of the State, as had prevented, or might prevent the recovery of debts due to British subjects, according to the true intent of the treaty; but with this proviso, that there should be a suspension of the repeal, 'till the Governor, by advice of council, had, by proclamation, notified that Great-Britain had delivered up the posts, and was taking measures for the further fulfilment of the treaty by delivering up the negroes, or by making compensation for them. This denotes clearly, that in the opinion of the legis­lature of Virginia, there were acts of that State which had prevented, and might pre­vent, the recovery of debts according to the treaty.

"It is observable too, that the resolutions of June, 1784, do not even give the expectation of a complete repeal of the impeding laws, in the event of reparation of the breaches of treaty by Great-Britain. They only promise such a modification of them as would permit the payment in such time and manner as should consist with the exhausted situ­ation of the Commonwealth; that is, not according to the true intent of the treaty, but according to the opinion of the legislature of Virginia of the abilities of the Com­monwealth.

[Page 16]"The complaints of a power, whose treaty with us was, in fact, violated by the ope­ration of a State law, could never be satisfactorily answered by referring to a theo­retic abstract, or disputed proposition. Such a power might reply with irresistible force: "It is not for us to concern ourselves about the structure and meaning of your political constitutions, or the force of legal maxims deducible from the forms and distri­butions of power which you have adopted for your government. It is the act in which alone we are interested; you have stipulated this and that to us; your stipulation in practice is contravened. It is your duty to see that there are no impediments from con­flicting authorities within yourselves, to an exact fulfilment of your promises. If you suffer any such impediment to exist, you are answerable for the consequences."

But it is said that the legislature of Virginia did not know what their own laws were, or in other words, that the suspending clause in the act of 12th December, 1777, acknowledging the existence of impediments, and refusing to repeal the [...], "passed un­der an erroneous opinion that impediments did exist, and that this opinion was generally prevalent, as much because the creditors did [...] venture to bring forward their claim [...], from an idea of a general prejudice against them before a court of justice, as for any other reason that can be assigned." If the members were in the habit of attending the courts of their respective counties, they would find good reasons for their opinion. This is the first instance in which the Claimants have ever heard the ignorance of a legislature used as an argument to do away an unequivocal declaration in a statute. If, indeed, the laws regulating elections in Virginia, contained a prohibition similar to that in the writs for the Coventry Parliament, then the name of Parliamentum indoctum, and the observa­tion of Sir Edward Coke, "that they never made a good law," might be applied to the Virginia Assembly of 1787. If any member of that house subscribes to the assertion in the Answer, the Claimants will refer him to the only reported case they know, in which, and the terms on which, ignorance of the law was admitted as an excuse.

"In the year 1598, Sir E. Coke, then Attorney-General, married the Lady Hatton, without banns or licence, and in a private house, several great men were present, as Lord Burleigh, &c.—they all submitted to the censure of the Arch-Bishop, who granted them absolution from the excommunication they had incurred. The act of absolution sets forth, that it was granted by reason of their penitence, and the fact seeming to have been done through ignorance of the law. N. B. Lord Chancellor Egerton submitted to the censure of the Arch-Bishop on the same account." (Hardw. 58.)

The Claimants in this case sincerely repent, that they were as ignorant of the laws of Virginia as the law-makers themselves are stated to be, in the answer to their claim; and they trust their ignorance will be their excuse.

But even supposing there were legal impediments in Virginia, and that the legislature of that State were not in an error when they passed the act of 1787, "it is contended that the treaty of peace abrogated all the legislative acts of Virginia, which were con­trary to it: In this light it was generally considered throughout the United States; and it is not believed, that any judicial decision was ever made to the contrary, by the Judges of any court, in any State: And if, by accident, such a decision was ever made, it may be pronounced to be erroneous, and would have been corrected, if it had been carried before a higher tribunal." (Answer, p. 51.)

It is conceived, that enough has already been said to afford a satisfactory reply to this part of the answer: A very few observations more will be made.

It is a general rule, that a statute ought to be so construed that, if it can be pre­vented, no clause, sentence, or word shall be superfluous, void, or insignificant.

[Page 17]Legislatures are not to be supposed to have used any words unnecessarily; they are not to be suspected of works of supererrogation. Every law must be supposed to have been enacted to answere some end, and that the law so enacted was necessary to answer that end. Ignorance o [...] the purpose to be attained by a law, and of the necessity of attaining that purpose, is not imputable to them. And when Congress thought it necessary, earnestly to recommend to the legislatures of the different States to repeal all laws intringing the treaty, it was a solemn declaration of the United States, that such repeal was necessary, [...] that the treaty could not be "executed by the vigor of its own authority." When Virginia passed such a law, but suspended its operation, it is a most solemn acknow­ledgment of the existence of impediments: And foreigners coming into a country are not expected to be wiser and more learned in the laws than the ruling powers of that country. "Neminem oppertet esse sapientiorem legibus."

The Claimants in this case never contended that the treaty of peace, when ratified and exchanged, was not binding in a moral sense; but they do contend, "that the Judges of each State were bound to judge according to the established laws of that State, and were not bound to regard, or take notice, ex officio, of the articles of any treaty made by Congress, unless that treaty had become the law of the State, according to the due form of proceeding in making acts, statutes, and ordinances in that State. The Claimants also admit, that there can be no doubt whatever, but that by the law of nations, and general equity, every particular State (where there are many which compose one whole) is bound to perform the contract or peace-treaty entered into at a Congress of the representatives of those States, which form the whole; and that such treaty must ope­rate as a tie upon each State, to rescind all acts and ordinances whatever made during the war, which contravent the terms of the treaty. But they contend, and the Congress of the United States have admitted, that some act of each particular State (repealing any act or ordinance which might impede the operation of the treaty, and giving power to the stated Judges of each State to pronounce judgment notwithstanding such act or ordi­nance in conformity to the treaty) would be necessary to warrant the Judges of each State to act in conformity to the treaty.

It is asserted (Answer, pa. 51) that the treaty was generally considered throughout the United States as the law of the land and to be obeyed and executed accordingly; it is acknowledged (pa. 43) that a contrary opinion was generally prevalent in Virginia, and even adopted and acted upon by the Legislature.

It is said in the Answer (pa. 51.) that "it is not believed that any judicial decision was ever made to the contrary by the judges of any Court in any State, and if by acci­dent such decision was ever made, it may be pronounced erroneous." One out of many shall encumber this reply—others will be produced to the Board in proper time.

At a Court of Quarter Sessions continued and held for Lancaster County, (Virginia,) 19th. day of March, 1788.

Anthony Warwick, Admr. of Anthony M'Quhaa, v Thomas Gaskins, jr. in debt.

"On this day came the parties by their Attornies, and upon hearing the arguments that were offered by the said Attornies, and all matters of law arising thereupon, the Court are of opinion that this suit be dismissed, it appearing to the Court to be a British Debt."

The foregoing is duly certified under the County Seal—The decision does not appear from the record to have been made by accident, but upon deliberation and hearing argu­ments of Council.

[Page 18]The record of the case of Clerk, Admr. of Russel v Harwood, in Maryland, has been before the Board as a document in another Claim. A repetition of a few observations upon that decision, may be proper here. The effect of a payment of a debt due to a British subject into the treasury of Maryland, was the same, as a similar payment in Virginia. By the laws of each State it operated as a discharge of the debt. It is fair to reason from what did pass in Maryland, whose courts were open immediately after the peace, to what would have passed in Virginia, had she barely repealed all laws prevent­ing British subjects from prosecuting suits for the recovery of their debts, without going further and declaring the Treaty of peace the supreme law of the land.

In the case of Russell's Admr. v Harwood,

The original Writ issued 19th. June 1786—Several pleas were put in, but all of them were afterwards relinquish'd, except that of payment unto the treasury agreeably to the act of Assembly, and judgment was rendered in favour of the Plaintiff by the Judges of the General Court, deducting war interest, on the 12th of October 1790. A writ of Er­ror was sued out the 21st. December 1790, and the judgment of the General Court was reversed in the high court of errors and appeals, June the 9th. 1795.

The Claimants do not pretend, nor have they, or any other Claimants before the Board, ever pretended, that the decree of the court of appeals in this Case can be sup­ported on legal principles—The judgment of the general court was rendered after the trea­ty had been declared the law of the land, by the Legislature of Maryland, and after it had been solemnly established as the supreme law of the land, by the adoption of the present constitution of the United States—It however establishes undeniably these points—That the act authorising payments into the treasury of debts due to British subjects, and pay­ments made in conformity to the directions of that act, were in the opinion of the high­est court of Maryland, a bar to the recovery of the debt, and notwithstanding the fede­ral Constitution, would still be a bar, if an appeal had not been authorised in the "act to establish the judicial courts of the United States."

There exists also an impediment which that act itself cannot remove, and which would entitle the Administrator of Russel to claim compensation of the United States, if Har­wood had became insolvent even subsequent to the 9th. of June, 1795. The bail in er­ror, was bail for the absolute payment of the debt, if the court of appeals of Maryland affirmed the judgment. By the reversal of the judgment of the General Court that bail was discharged. Another consequence is undeniable. If this suit had been brought earli­er, and if the final judgment of the court of appeals in Maryland had been rendered be­fore the 24th. of September, 1789, the date of the "act to establish the judicial courts of the United States," the Creditor would have been without remedy, except under the 6th Article of the Treaty of Amity,—And if all the Creditors in Virginia had commen­ced their suits immediately after the peace, and every one had been dismissed, on the ground that they were for British debts, no courts erected subsequent to those judgments, and under a constitution adopted subsequent to them, could possibly re-examine and reverse them.

But it is said that the decision of the circuit Court of the United States in June, 1796, fully establishes the doctrine, that a treaty controuls all State laws opposed to it. Could a similar decision of the Judges of the Supreme court of Virginia since the peace and before the adoption of the federal Constitution, be produced, it might be of consequence, but it lies not with the United States to say, "It is true that in 1783, we stipulated, that no legal impediments should exist to the recovery of debts, the courts in the different States ought to have decided that that stipulation repealed the laws which the Judges of those courts were sworn to support; We recommended it to them so to do; Their obstinacy would not, or their consciences could not, bend to our recommendati­ons. It is true, that many losses have been sustained in consequence thereof: It is true [Page 19] that in 1794, we promised compensation for those losses; but we are released from both stipulations, because, in 1796, the Judges of our Circuit Court have decided that judgments of State Courts, (not in our power to reverse,) were rendered on erroneous principles."

But the case cited (Hamilton v Eaton) does not go the full length contended for in the Answer. The principle there laid down is correct where there is one sovereign will; but it has been shewn, that it is at best extremely doubtful where there is imperium in imperio; nor was it necessary to decide the point, for the Chief Justice goes on and says, "If, however, a subsequent sanction of this State was at all necessary to make the treaty law here, it has been had and repeated. By a statute passed in 1787, the treaty was de­clared to be law in this State, &c. And in 1789, was adopted here, the Constitution of the United States, which declared, that all treaties made, or to be made, under the authority of the United States, should be the supreme law of the land, and that the Judges in every State should be bound thereby; any thing in the Constitution or laws of the State to the contrary notwithstanding. Surely then, the treaty is now law in this State." He concludes with saying, "What is most material to be here noted is, that the right or obstacle in question, whatever it may amount to, has been created by law, and not by the creditors: It comes within the description of lawful impediments, all of which, in this case, the treaty, as I apprehend, removes.

Here the Claimants leave the general points on legal impediments, with this remark, that if the power of the State legislature of North Carolina*, had not been controuled by the Constitution of the United States; or if the 14th amendment to that Constitution agreed to by the Virginia Convention, had been adopted, it is probable the cases of Hamilton v Eaton, or Jones v Hylton, would have never been decided.

[Page 20]

The Claimants are to prove their Case.

THIS is admitted, but it is contended that in this case, as well as in suits at law, a title prima facia good, is sufficient until the defendant shews, either that the plaintiff has been divested of that title, or that the defendant, or some person else, has a better; or, if it is a demand for money, that the demand has been legally satisfied. But there are cases even at law where the fullest proof cannot be expected; and here a legal maxim applies: "No man is permitted to take advantage of a defect of evidence, when that defect is occasioned by his own act."

A maxim is cited in the Answer, (p. 5) Melior est conditio defendentis—This requires an observation. "Potior est conditio possidentis," is a correct maxim. In an ejectment the plaintiff must produce a clear title, otherwise the mere possession of the defendant is sufficient. The maxim cited in the answer should be, "In pari delictu melior est conditio defendentis." This is founded on a principle of general policy, which a defendant has advantage of, contrary to real justice, as between him and the plaintiff; the principle is, "ex dolo malo non oritur actio." If the cause of action appears to arise ex turpi c [...]usa, or a transgression of a positive law, there the court says, the plaintiff has no right to be assisted; it is not for the sake of the defendant, but because they will not lend their aid to such a plaintiff, (Cowper 343.) In reply to this maxim, a claimant can only ask, in the "plaintive motto of a Courtnay, Ubi lapsus? quid feci."

It is agreed, that the stipulation in the Sixth article of the treaty of Amity is so "brief and intelligible, that it is difficult by any phraseology to make it either more concise or plain." (Answ. pa. 7.) But the Claimants do not entirely acceed to the special descripti­on in the Answer. (pa. 8.) within which it is said, a "remediable claim must be brought;" nor to all the cases (pa. 10.11.) said to be "not relievable under the trea­ty." They fully agree with the Answer in this, "that the 6th. article of the treaty of amity grew out of the 4th. article of the treaty of peace" but while they acknowledge the fundamental principle laid down, (pa. 12.) ‘that no loss or damage is reparable under the treaty of 1794, that is not grounded on a debt comprehended in the 4th article of the treaty of 1783, and has not proceeded from the violation or non-execution thereof,’ to be cor­rect as far as it goes, they respectfully contend, that the fundamental rule should be in the affirmative, and not the negative; it should be—Every loss or damage is reparable under the treaty of 1794, that is grounded on a Debt comprehended in the 4th article of the treaty of peace, and has proceeded from a violation or non-execution thereof.

This leads to a short discussion as to the true meaning of both articles. The Claimants will state the construction which to them appears to arise from the Words—The Board will decide between the answer and reply.

"It is agreed, that Creditors on either side, shall meet with no lawful impediment to the recovery of the full value, in sterling Money, of all bona fide debts heretofore contracted."

The words Creditors on either side, are to be taken in their most extensive signification. All British subjects having demands on one side, whether resident in Great Britain, Ireland, the Indies, or the Continent; and all American citizens on the other. All [Page 21] distinctions of British subjects taken from their residence, are blended in the designation Creditors on the side of His Britannic Majesty. Not a word is said of Debtors; therefore, the first description in the Answer (pa. 8) is not quite accurate; for, if a British subject indebted to a British subject before the peace, had absconded with his property, after the peace, and becoming either a citizen or inhabitant of any State, had there been protected by a State law from the pursuit of his creditor, it is not unfair to sup­pose it a remediable claim. That, however, is not the case of the Claimants, nor is it known or believed that any such case exists.

Further. "Creditors of all bona fide debts theretofore contracted," whether entitled to receive the debts, as creditors by original contract or assignment before the peace: Whether the debts had been confiscated, sequestered, paid into the Treasury, or tendered in worthless paper, or in any thing less than sterling value: Whether the obligations or evidences of the debts had been seized, destroyed and cancelled, as in several cases they were, under a State law; or fraudulently or forcibly, or by operation of law, obtained by the debtor—Still they are creditors, and are to meet no lawful impediment to the recovery of the full value in sterling money of all such debts.

A law that is universally beneficial cannot contain exceptions, for such would make it only beneficial in 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 expression, and as to the words lawful impediments to the recovery, they have nothing to operate upon, especially as connected with the words full value in sterling money, except confiscations, sequestrations, depreciated paper, depreciation laws, scaleing debts, and laws at that time in force prohibiting suits; all of which required legislative interference to remove; in every other case, by the mere return of peace, without any express stipu­lation, the war suspended remedy revived. The article therefore clearly means, that those laws, and all proceedings under them, should be no impediment to a full recovery. A rule of construction of statutes, already mentioned, is "to give its force to every word, where it can be done." And Vattel says, "where an act is conceived in clear and pre­cise terms, when the sense is manifest and leads to nothing absurd, there can be no reason to refuse the sense which it naturally presents,—to go elsewhere in search of conjectures to extin­guish or restrain it, is to endeavour to elude it."

In the treaties made between France, Spain, and Holland, with Great Britain, about the same time, there is no such provision; because there existed no such acts in those governments, which rendered necessary a stipulation that their effects should be of no validity.

Justice, and reciprocal remedies to the subjects and citizens of the two countries, call for this construction. The intimate connection which had subsisted between Great Bri­tain and the Colonies, previous to their separation, strongly require it, in order to make the article completely mutual. No laws were made in England confiscating debts, or making depreciated paper a tender; and if a creditor was beyond seas, no act of limi­tation barred him. If, therefore, less than all impediments to the recovery of all debts were intended to be removed, where is the line to be drawn?—An half, a fiftieth, or a thousandth part? Or, is a construction to be put, similar to that stated and severely re­probated by Puffendorf, on the treaty between Fabius Labeo and Antiochus. in which the Romans stipulated to restore one half the ships taken from Antiochus. They sawed them all in half, and rendered the whole useless.

The sixth article of the treaty of amity which arose out of the foregoing article of the treaty of peace, in consequence of alledged infractions, evidently contains, and must be divided into two parts. Great Britain complained, "that debts to a considerable amount, which were bona fide contracted before the peace, still remain owing to her sub­jects, by citizens or inhabitants of the United States; that by the operation of various [Page 22] lawful impediments [...]ce the peace, not only the full recovery of the said debts has been delayed, but also the value and security thereof have been, in several instances, impaired and lessened, so that by the ordinary course of judicial proceedings, the British creditors can­not now obtain and actually have and receive full and adequate compensation, for the losses or damages which they have thereby sustained."

Within this part of the section, and this only, the Claimants must prove their case. They come fairly before the Board on the following terms:

They must be British subjects.

Their Debtors must have been citizens or inhabitants of the United States.

Their debts must have been bona fide contracted before the peace; they are to be proved in that manner which was admissible and sufficient, at the time they were con­tracted, if that is now possible; but, if from the unavoidable accidents that must have happened in a long lapse of time, that is now impracticable, the next best testimony in their power is to be received and considered. Their debts must still remain owing to them; legal impediments must have so operated, that a full recovery has been delayed, or the value and security impaired and lessened, so that by the ordinary course of judicial proceed­ings (that is, the courts which had original jurisdiction, according to the amount in the State where the debt was contracted,—for the prosecution of a five pound appeal, seven hundred miles off, was never contemplated) they cannot NOW actually have and receive full and adequate compensation for the losses and damages thereby sustained. No further or other points are to be proved, and if they cannot now actually have and receive from their Debtor, they are not to wait the event of hopeless suits or general verdicts, years after the commission shall have been expended; because, the United States have agreed, that in all such cases where full compensation cannot, for whatever reason, be actually ob­tained, they will make it.

While the Claimants state the above to be all that can be required of them, and insist that it is sufficient to entitle them to a decree, (they executing proper assigmnents and releases) for all losses and damages thus proved to be sustained, if nothing else appears; They admit, that there is a defendant side to the case, because, when the United States stipulated to make compensation as above, they required, and it was agreed, and "distinctly understood, that the stipulation was not to extend to losses occasioned by such insolvency of the debtors, as would equally have operated to produce such loss if the said impe­diments had not existed, nor to such losses or damages as have been occasioned by the ma­nifest delay, negligence, or wilful omission of the Claimant."

This part of the article belongs to the United States, and when the insolvency of the debtor at and ever since the peace is affirmed, the burthen of the proof lies on the par­ty affirming. If an executor or administrator pleads no assets, or fully administer'd, it is incumbent upon him to shew that nothing was in his hands, or how he has administer'd. So where omission or negligence is alledged.

If the foregoing view of the article is correct, short replies will be sufficient to many observations contained in the Answer.

It is alledged "that it is reasonable that the claimants should be required to prove the solvency of the debtor at the peace, and his insolvency since, because he is presumed to know the circumstances of the debtor, and [...]ould naturally from time to time make en­quiries concerning his circumstances" &c. (see Answ. pa. 9.)

With regard to actual solvency, it is not required to [...] p [...]!—It is impossible in one case out of a [...] hundred to prove it. In mer [...] [...] it is always allowed, that [Page 23] while debtors are transacting business publicly, buying, selling, and trading, they are at that time good and solvent debtors; and the State of Virginia by protecting their debtors from a suit, was like the holder of a bill of exchange giving credit at his own risk to an acceptor.

If all those debts had been assigned to the United States at the peace for valuable con­sideration, with assurances to refund such part as, with due diligence could not be reco­vered by reason of insolvency, and Virginia one of the United States created, or permited impediments to exist for several years, which were at last removed, but the debtor became insolvent before a suit can be prosecuted to judgment,—The remedy over is lost unless clear proof can be brought of actual insolvency at the time of the assignment. So where the payee of a bill neglects to give due notice of the non-acceptance, he will lose his re­medy against the drawer, on the principle, that if due notice had been given, the draw­er might have secured himself; this defence however of the drawer will not avail him, if it is sufficiently proved that he had no funds in the hands of the drawee. It must there­fore be evident, that if, in the case of an assignment as above stated, the United States could not recover of the Claimants, without proof of insolvency at the peace, (which is equivalent to proof of no funds in the hands of a drawee) so neither can they resist their promise to make full compensation, without that proof.

But the reverse of the allegation is true. The creditors were driven out of the State by law. The courts were occluded in 1774. At the return of peace, suits were pro­hibited. If therefore, there is a defect of proof on this point, it arises from the act of the State, and not to be taken advantage of. Where present insolvency, or removal from the State during the existence of legal impediments, are the grounds on which com­pensation is claimed, they will be proved.

It is laid down as a general rule, "that the creditor ought to apply to the Courts of Justice against the debtor, before he applies to the Commissioner's against the United States." (Answ. pa. 10.)

In many instances the debtors have sold off their property during the period of existing impediments, and removed to places beyond the reach or knowledge of the claimants; it cannot be expected that records of suits shall be produced in such cases. To sue persons notoriously insolvent, only to produce a return of "no goods," is to suppose the Commis­sioners can receive no testimony of facts, but what arises from record.—If one such re­turn was had, it might be alledged, that the claimants had only tried one county;—that the debtor might have goods in another of the eighty-two counties, he must be pursued in each; if the returns are uniform, it may be urged that he has lands; the claimants must try their elegits, and at last after twenty years delay, and expence equal to fifty times the debt, they will be able to establish by records what the board can easily decide upon testi­mony less expensive, more easily obtained, and equally satisfactory.—To bring suits in ca­ses where there is no other testimony except the books, or even where there is other proof, if length of time is a bar, would only be adding the costs of ten thousand fruitless suits to the loss and damage already sustained.

The first case stated (Answ. pa. 10, 11) as not relievable, is admitted; so is the se­cond, on proof by the United States of the debtors insolvency at the peace, and at all times since: The third and fourth are contested, for reasons already given; and be­cause most of the debts are below the jurisdiction of the Circuit Court of the United States. It would take years to carry those which are above the final jurisdiction of the inferior court, up to the "highest court of law or equity of the State in which a decision can be had;" in order to bring them within the appellate jurisdiction of the Supreme Court of the United States; and because the word now, in the sixth article, does not mean ten years after the Board shall have broken up.

[Page 24]The fifth and sixth are a little at variance—the former insists upon the necessity of a tedious and expensive suit for partial relief, before application for the balance shall be made to the Board; and the latter insists, that no compensation shall be made where a creditor has accepted, without suit, as much as he could possibly recover at law; that rea­soning is not sound—"Interest reipublicae ut finis sit litium." The sixth case however, contains something to be admitted, and something that will be strenuously denied. Where the debt has been satisfactorily settled before the peace, there was no debt at the peace; where ever it has been so settled since the peace, there is no debt now owing; where it was voluntarily compromised by a new contract before the peace, and the performance of that contract has been prevented by legal impediments since, that is strictly within the treaty; where it has been voluntarily compromised by a new contract since the peace, the original demand is extinguished, and it is not within the treaty. In making these admissions, the Claimants understand the words voluntarily and satisfactorily in their plain sense—the will must have been unfettered by the certainty that compromise was ne­cessary, because payment could not be enforced; and the settlement must have been such, as would have been satisfactory, if access to the courts had not been denied, and the course of justice had been unimpeded. A case may arise, where a debtor in affluent circum­stances, or the heirs of such debtor, paid the debt into the treasury of Virginia, and took a receipt, which by law was declared an effectual discharge from the debt: The estate of the deceased has passed unincumbered into the hands of bona fide purchasers: The heirs, in the enjoyment of the personal and the purchase money of the real estate are, on the return of peace, applied to by the creditor: Their answer is rigorous, but mixt with honesty, and a regard for character: Your debt (say they) has been paid according to a law in force: By law we are discharged—by law you cannot recover: It is true, that the money paid into the treasury was worth nothing—it is true, you have received no satisfaction, and in conscience and justice you are entitled to it; make us certain deductions, give us certain terms of instalment, accept our separate engage­ments according to the proportions of estate which have respectively descended to us, and we will give them; but you must take this or nothing. In such a case, the credi­tor complying was doing the best in his power for himself, and of course the best in his power for the United States. But can this be called a voluntary compromise, a satisfac­tory settlement? And if one of those heirs became insolvent before payment could be en­forced, can negligence or omission be imputed to the creditor, or will it be fair in the United States to say, "We did stipulate that no impediments should exist, but we are dis­charged from that agreement, because the creditor has been compelled to submit to impediments which actually did exist."

The seventh excepted case is admitted, provided the indulgence was granted since the establishment of the federal court, and the sum was within its jurisdiction; but it is ho­ped that no endeavours of a claimant to persuade a debtor to do justice, no kind expostu­lations in letters soliciting payment, or even part payments, at a time when no payment which could not be enforced by law, will be construed into such indulgence, and in in­stances where the Attorney for the creditor was a relation of the debtor, it might have been hoped, that those expostulations would have had more weight then when pro­ceeding from a stranger.

The eighth excepted case in the Answer, is by no means agreed to. Judgments of competent courts before the war, are undoubtedly a bar to any claim, on account of a debt then determined not to be just; but if non-suits have been ordered, suits dismissed, or judgments rendered for defendants during the commotions at the commencement of the war, and in the absence of the plaintiff, it will require more consideration before claims on that account are abandoned. The different Claimants have been advised by their General Agent not to bring forward any very stale claims; but it is by no means ad­mitted, that a debt, which had been five years due, at the time of the occlusion of the courts in Virginia, was not a bona fide debt within the meaning of the treaty.

[Page 25]The Claimants acknowledge, if the courts in Virginia had been open to them at the ratification of the treaty of peace, and all the time between their occlusion and that ra­tification had been declared out of the act of limitations, in that case they would have had no right to complain. If length of time had then been pleaded, they might have repelled the plea by proof of subsequent acknowledgments and promises, which is not now within their power.

Here some observations on the book debt law, the act of limitations, the decisions of courts, and the practice of the bar in Virginia under those acts, may be properly in­troduced. Decisions nearly coeval with the date of a statute, and particularly where an uniform practice conformably to such decisions has taken place for a length of years, are of such high authority as not to be shaken; "Contemporanea expositio est fortissima in lege," they restrain, they enlarge the construction, and sometimes settle a construc­tion contrary to the letter.

Before the enacting of the act of 1748, the store books of the merchant had always been admitted as evidence of the debt, and an act (5 Geo. IId. now out of print) of the same title as the act of 1748, was in force; and it is believed no complaints ever were heard either against the practice or the law. But as the state of society advan­ced, debtors sometimes disputed the accounts, which threatened destruction to that mu­tual confidence which had hitherto subsisted between the merchant and the planter, and which was essential to the convenience of the inhabitants. However, the exigencies of the people, who were moneyless a great part of the year absolutely requiring it, (for otherwise, they could not without the most intolerable inconvenience to themselves have procured the comforts and necessaries which their families daily stood in need of,) the le­gislature, at once to comply with the public convenience, and to secure the merchant, passed the "act prescribing the method for proving book debts."

After the passing of this law, (which the claimants never understood to have been con­sidered as a grievance to the planters) the course of trade was continued upon the ancient footing, and the planters persisted to take up goods, as they had occasion for them for the use of their families, and to pay for them out of the ensuing crop. It frequently hap­pened though, that they over went the growing crop and anticipated the subsequent one: In which cases, if the excess was not great in proportion to the usual extent of their crops, it was customary once a year to call over the accounts in presence of the debtor, to fur­nish him with a copy if desired; and to transfer the balance to another ledger, without demanding a specialty, which would have been considered as a mark of distrust, and therefore would have been highly offensive, insomuch that it was never done, except in cases supposed to be perilous, in order to give dignity to the debt. Nor is there any in­stance recollected where such transfer of the balance has ever been made, until the ac­count was approved of by the debtor. The courts fell in with this disposition of the par­ties, and took the law by equity; which they extended beyond the strictness of the let­ter to cases which hardly seemed to be within the provisions of it.

Thus, although the first and second sections relate to accounts for store dealings and transactions altogether, yet accounts between planters, or for mechanic work, or upon a­ny other account whatsoever, were proved in the same way, and judgment given on them.

So, although the law speaks of two and three years, yet the County Courts universally dispensed with the limitations, and allowed the evidence at any distance of time. Hence it came to pass, that nothing ever prevented a recovery of an open account thus authen­ticated, but the general act of limitations passed in the year 1705; which, at that time, was thought so disgraceful, that lawyers never insisted on it without directions, and no person of reputation would require it to be pleaded; and whoever did was held in such dishonour that very few instances of it ever occurred; and even in those, juries found for the defendant with such reluctance, that any thing was admitted in avoidence of the [Page 26] plea. In the General Court too, which at that time was the highest Court of Judicature in the State such evidence was admitted, where not pointedly objected to; and the ob­jection either from the integrity of the bar, or the discountenance shewn by the Court, was seldom made, insomuch that it is believed, that but few cases happened where the plain­tiff failed to recover merely upon the ground of that objection. Nay, such was the encou­ragement given by the Courts to this species of evidence, that in cases where the plain­tiffs summoned his clerks or others to prove the account, payment for the witnesses atten­dance was disallowed by the Court, as the plaintiff might have proved it by his own oath and therefore should not have summoned the witness and unnecessarily have encreased the costs of the suit against the defendant.

This conduct generated a mutual confidence between the merchants and their custo­mers, which induced candour in the planter, and a strict attention on the part of the merchant to the fairness of his accounts; insomuch that he would have yielded any debt which was pointedly objected to by the customer, sooner than have the reputation of his books impeached. And to such length was this carried, that a wilful false entry in his books would have been as highly condemned, not only by customers, but by mer­chants, as if he had committed forgery; because such practices would, in the long run, have weakened the testimony, which, while it remained unimpaired, was held as sacred as a bond. Hence, in the public estimation, few evidences were more respected than a merchant's books, and none, where it was more essentially the interest of the party that they should be pure and unexceptionable.

Under this act, therefore, prior to the revolution, the merchants and traders of all de­nominations rested perfectly secure, and seldom thought of procuring any other testi­mony, except where the claim had grown to any considerable amount, or all dealings and transactions were broken off betwixt the parties, when bonds were sometimes taken to give dignity to the debt. The planter confided in the books, and the merchant relied on them as the only evidence of his claim, which he trusted would be always suf­ficient to support it; and assured of this, from the whole experience of his business, he gave himself no concern about any other. Which security was not indiscreet, but was founded on the practice and decisions of the country.

From this temper and disposition of the parties, and the security which the law and practice of the country afforded the creditor, suits were seldom brought, unless the delay of payment was unconscionable, or the debtor was declining in his circumstances: In which cases they were brought, not to authentica [...]e the debt, for that was considered as established without, but merely to enforce payment of the money.

The revolution then, and its consequent regulations, came upon them by surprise. It was an event which no human wisdom could have foreseen, and therefore could not be provided against. But even had it been foreseen, and had the creditors resolved to guard against it, they must have relied upon the generosity and integrity of the debtors, as it was not in their power to compel them, from the twelfth day of April, 1774, to this very time. For the costs of suit in Virginia were ascertained by a temporary law called the F [...]e Bill, which expired upon the 12th day of April, 1774, and was not revived again until the impediments already mentioned in the memorial, began to exist. Hence, in a variety of instances, the creditor could not have brought his suit, had he deemed it necessary to do so, within the limitations prescribed by the act of Assembly; which being an impediment arising from a defect of justice in the country, the delay of suit ought not to be imputed to the creditor, even had it been foreseen that such a step was important. But when it is considered, that no sagacity could have penetrated into the events which afterwards took place, every shadow of carelessness and indiscretion imme­diately disappears.

[Page 27]In this situation were things then at the commencement of the revolution, which brought on an occlusion of the courts of justice, paper money, and a thousand other ob­structions, until finally a law was passed which obliged the creditors, their factors and agents, to depart the country. So that it became impossible, by this additional act of government, even had they divined the necessity of it, to obtain further proofs of their debts, which they could not sue for and reduce into possession—1st. Because there was an occlusion of the courts of justice—2d. Because there was an express inhibition to pro­ceedings in suits brought by British subjects—3d. Because the creditor could only have recovered paper money, which would have been of no service to him out of America; and here he was not allowed to use or employ it.

Hence if no alteration had been made in the law, it would not have been a chimerical inference in the creditors, that they would on the return of peace, have been allowed to prove their debts according to the existing modes at the time they were contracted. But flattering as this prospect was, it was afterwards blasted for ever; for, in the year 1779, the book-debt law was repealed; and although the repealing act has an excep­tion with regard to goods sold before, yet the Courts immediately began to depart from the liberality of the former practice, and held the plaintiff to the strict letter of the book-debt law, in all cases previous to the operation of the repealing statute, and called on him for common law proof in all cases subsequent to that statute. So that it is now universally holden in all cases before the State courts, that neither citizen or foreigner can establish his claim by his own oath; and at a late court of the United States for the middle circuit and district of Virginia, it was expressly decided, that the plaintiff could not recover in a suit brought by him upon an open account which was only proved by his own oath, but that the delivery of the articles to the debtor must be proved by dis­interested testimony. Added to this, in the State court on whom alone the decision of all causes under five hundred dollars is devolved, and of these particularly the county courts, who have concurrent jurisdiction in all common plea cases whatsoever, and ex­clusive jurisdiction in all cases under one hundred dollars, the difficulty would be greater still: For even [...] cases supported by other evidence, the plaintiffs, sometimes from the obstinacy of the juries, and at other times from the reluctance of the courts, have been continually delayed, or their claims have been decided against them without regard to the merits of the case, merely on the ground of their being British debts.

Hence it has become morally certain, that no recovery can be had of the debtor for these claims, because the law having been held to be out of force which allowed the plaintiffs to prove them by their own oaths, and the factors, agents, and store-keepers who might in some instances have been able to have proved them having been driven out of the State; and being now dead, or dispersed into different quarters of the world unknown, in much the greater part of the cases, to the creditors, it is impossible to prove them according to the common law rules in a court of justice.

The claimants respectfully contend, that a change of the rules of evidence after the debts were contracted, ought not to affect the creditor, who only provided himself with such evidence as the then existing laws and usages required, and as it was not necessary for them to have witnesses at that time it ought not now to be required; otherwise the treaty will have done nothing for them, since although the right to recover is acknow­ledged, yet the means are taken away by requiring testimony not foreseen, and impossible to be procured.

The ninth case stated in the Answer (pa. 12.) as not relievable under the treaty, would not have been much contested if it had rested at the first period; but the instance given in the latter part is so contradictory to what the claimants conceive to be an undeniable maxim, to wit "neither of the contracting powers has a right to interpret the treaty at his pleasure," and would go to the entire cutting up of so large a portion of the claims which were intended to be compensated, that the admission would be making the greater [Page 28] part of the treaty a dead letter. It is also inconsistent with another part of the Answer it­self. In one case it is insisted, that the creditors must resort in all cases to the tribunals of the country, where they can only obtain a partial relief, before they can come before the Board for that part which cannot be recovered; and here it is insisted, that when they have resorted to that tribunal, and obtained a verdict for that part of their demand which a jury may please to allow, they are to be concluded by the verdict, as to the amount, and can never be permitted to shew, that injustice has been done to them. In other words it is saying, that the courts and juries in Virginia, and in cases of general verdicts juries alone, the friends and neighbours of the debtor, with every prejudice, if not resent­ment against the creditor, are to be the exclusive judges on the construction of the treaty of peace, that their ideas of equity and justice is to be binding on the consciences of the Commissioners, and that if Judges, on a plea of payment to a bond, will admit evidence of the absence of the creditor, though forced from the country by law, as a set-off, that the British subject must in all cases submit to it; this (to use the expressions of Congress already quoted, see pa. 8. anti.) "is a construction which involves many inconveniences and absurdi­ties, destroys an essential part of the power of war and peace entrusted to Congress, and would disable the Congress of the United States, from giving satisfaction to foreign nations complain­ing of a violation of neutralities, of treaties, or other breaches of the law of nations, and would enable a jury in any one State, to involve the United States in hostilities; a con­struction, which for these and many other reasons, is inadmissible."

An instance in which the verdicts of juries has been peculiarly injurious to British creditors, arises from an act settling a scale of depreciation. It is true, that the sche­dules of debts due at the Brunswick store, contain no demand on this account; but the Claimants stated in their memorial, that they had several stores, and it was agreed that as many heads of real complaints as possible should be brought forward for discussion in one claim. Under this agreement, and referring to it, the Agent of the United States omitted answering several points in the case of Oswald Dennistown, & Co. to save repetition before the Board.

The whole of the debts due to the Claimants were contracted at a time of unsus­pecting confidence; when debtor and creditor were subjects of the same Sovereign, and bound by the same laws, under the faith of which the credit was given. No depreci­ation of money was then known. In the year 1777, persons of their description were ordered, by proclamation, to quit Virginia in forty days. To collect their debts in that short space was impossible—they did what they could. From as many of their debtors as they met, who were willing to give, they obtained bonds for the balances due to them. In 1781, a law is passed, by which the sums are directed to be reduced to two thirds of the debt bona fide contracted, and war interest deducted from that two thirds: Is this equity and justice? Is this full compensation? Courts and juries may think so, or be bound to decide so in the United States, but debts due to British subjects are not to be legislated away, by acts to which they were no party. (Du Costa v Cole, Skinner, 272) And as such judgments are no compliance with the 4th article of the treaty of peace, the loss sustained by means of them are to be redressed under the 6th article of the treaty of amity.

But it is alledged (Answ. pa. 41.) "that by judicial decisions it has been settled in Virginia, that if a bond dated at any time between the 1st day of January 1777, and 1st day of January 1782, contains in the condition, or any part of it, any thing to shew the debt was originally contracted before the date of the bond, the depreciation law shall not be construed to operate on such a case; but if the bond has no such intrinsic evidence of the time the debt was contracted, it is is liable to be scaled, and parole evidence is not admitted to alter the effect and purport of the sealed instrument. Thus then, if the creditor omitted to take a bond so as to shew by something in it, that it was probably to secure a debt contracted before the war, it was a wilful omission in him, and if any loss arises from hence, it is a loss not intended by the treaty of 1794, to be charged on the United States."

[Page 29]The only omission the Claimants can charge themselves with, is, in not having stated in their memorial, that they are natives of Glasgow only, and not from the north; and that there, as in America, the maxim obtains, "Nemo tenetur divinare."

Interest during the War.

Interest is recoverable upon contracts wherein interest is stipulated to be paid; upon merchandize according to the usage of particular branches of trade, or of a special agree­ment; upon goods sold and delivered at a limited credit, after the expiration of the time of credit; upon money payable at a particular day, after that day is passed; upon money payable on demand, after demand proved; upon accounts after final settlement, and even upon accounts where no time of credit was specified, if the delay has been long, and under vexatious and oppressive circumstances.

This question of interest will be examined upon general principle, because, the occlu­sion of courts prevented a legal demand at one period, the banishment of the creditors or their factors rendered final settlements in most cases impossible, the impediments since the peace have been vexatious, the decisions reducing their bonds bearing interest, have been oppressive, the loss upon their accounts for which bonds were not obtained, has been nearly total, and the expence of agents and factors for fourteen years past in endea­vouring to collect their debts, has been more than equal to all recovered.

The Claimants do not think it necessary to go back to the black letter decisions in the reigns of the Stuarts, to discover whether interest was recoverable as debt or da­mages; or to find out how judgments were entered, or what pleadings were faulty, a century ago. All the cases, therefore, cited in the Answer from the 13th to the 20th page, will, (except one) be left as they are. The case in a Ventris, 198, is said in the Answer to be "a judicial resolution upon the very point, whether interest is reco­verable as debt," and as it was decided upon demurrer, it "therefore is of high autho­rity." The case is shortly this. A testator borrowed a sum of money, for which he gave his obligation to repay the same sum with interest; a judgment was obtained on this obligation against the executor. Another suit, by another creditor, was afterwards brought against the executor, to which he pleaded that judgment, in which, the debt and interest at the time of the action brought, amounted to such a sum, &c. ultra quae he had not to satisfy: Demurrer and judgment for the plaintiff. Lord Hale does make use of the expressions quoted in the Answer, (pa. 18) but as the real reason for the judgment is omitted in the Answer, it shall be inserted in the Reply. "It [...]rs, that part of the interest accrued after the testator's death, which is the EXECUTOR's [...] ­PER DEBT, being his own default to suffer the interest to run on," &c.

From the several cases cited in the Answer, the following conclusion is drawn: "If it be an axiom of the English law, as it is believed to be, that an action of debt lies for recovering every debt; and if such an action of debt does not lie for interest, as has been shewn, then it follows, that in the eye of English law, interest is not debt."

In the eye of the English law, interest is debt; it is demandable as soon as it be­comes due and payable; it is recoverable in an action of debt brought for interest alone, notwithstanding the case in Ventris: For instance, if a sum of money was lent for a num­ber of years with interest, payable half yearly, the interest could not be recovered by assumpsit in damages for not paying the principal, because the principal might not be due. And Lord Kenyon says, (5 term. R. 556) "The case cited from Ventris ought not to be treated slightly, or overturned without great consideration, because it has the sanction of Lord Hale's name. But as at present advised, I confess it appears to me, that the reasons given in support of that judgment, are strong to show, that the decision should have been the other way; for if it were rightly decided in that case, that an action of debt will not lie for interest, great injustice would be done in a variety of instances that might be put. [Page 30] If by the terms of the contract, the payment of the money borrowed is to be postponed to a distant day, and interest be reserved and made payable in the mean time, the leader would not, acoording to that doctrine, have any me [...]s of enforcing the payment of the interest, before the principal can be recovered, and in the instance put, of the security being by deed, the lender could not recover interest at all, in assumpsit, on ac­count of the deed."

Lord Mansfield says, (3 Burr. 1375) "The interest (even upon sums payable by in­stalment) is part of the original debt due upon and secured by the bond."

Lord Hale in the case of Ventris, admits, that interest may be recovered in assumpsit, and it is a rule, that wherever indebit [...]t [...]: assumpfit will lie, debt will also lie. And lastly, the answer itself admits, that interest since the peace should be paid;

Nor is the maxim laid down in the Answer, (pa. 19, 20) "that in an action of debt interest is recoverable for the damage occasioned by detaining the debt," more cor­rect than the axiom.

In truth, interest is recoverable both in Great-Britain and the United States in one or the other of all the following forms.

In actions of debt on bonds with penalty, judgment is rendered for the penalty as the debt, to be released on payment of the principal and interest due, and if there is a delay of payment beyond the time of judgment, the principal and interest form a new debt upon which interest is calculated.

In actions of debt without penalty, interest is given for detention, and judgment is rendered, (to preserve old forms,) for so much debt and so much damages.

In actions on the case, both principal and interest are called damages, and judgment rendered for one sum including both; and

Interest is recoverable in an action of debt, by itself, and in an action of assumpsit by itself, where the principle is not due.

But it is totally immaterial to the Claimants, in what form of action, or by what name interest is recoverable, or how judgment rolls are made up in different actions; to them it is sufficient, that interest is money, and that it is due. Instead therefore of hunting through obsolete cases for what was the strict meaning of a word, not to be found in the 4th. article of the treaty, to wit, "interest," the Claimants beg leave to examine into the meaning of a very important word in that article, debts.

In common parlance all debts must, and do mean, every sum of money a man owes, whether principal or interest, whether by sealed specialty, bill, note, book-debt, or pro­mise express or implied; whether recoverable by action of debt, covenant, assumpit, or even case for a quantum meruit; or against a common carrier for the value of goods lost. If a note bearing interest is barred by an act of limitation, a promise to pay the debt will revive the remedy as to principal and interest. So, directions in a will to pay all the testator's just debts, has been held to revive the remedy for both principal and interest of debts which had been barred by length of time. It is in this common acceptation that the word was used in the treaty. In many instances, however, of this particular claim, if the strict legal meaning of the word debt is adhered to, then the award, even deducting interest during the war, will far exceed the present demand. On failure of payment agreeably to the condition, the penalty became the debt in every case of spe­cialties with penalty;—The penalty was the debt at the treaty of peace—The penalty is the sum for which an action must be brought, and for which the Court are obliged to [Page 31] render judgement; and (bound down to certain forms of proceeding) nominal damages must be given on that penalty, and if from length of time, the principal and interest exceed the penalty, the overplus interest is recoverable beyond the penalty. Formerly, Courts of Equity only could relieve against the penalty; modern statutes have authorized Common Law Courts to relieve; but how? They render judgement for the penalty— to be released on payment of principal and interest. Courts rendering judgements on other grounds are assuming Chancery powers not delegated to them.

It is to be wished, that an accurate report of the case of Jones v Hylton, had been printed, as well as M'Call v Turner. In that cause Chief Justice Jay presided, and delivered in the most express and pointed terms, the opinion of the Court, that full in­terest should be recovered. The jury were sent out more than once, but persisted in the deduction. In the case of Hamilton v Eaton, the jury of enquiry found a special ver­dict, by which the question of war interest was left to the Court, and decided in favour of the plaintiff.

One circumstance here requires remark. Whenever a Claimant grounds his Claim upon an impediment, created by the judgement of the highest State Court, the necessi­ty of an appeal to the dernier resort is insisted upon. Here, however, the case of M'Call v Turner is relied upon, in opposition to the decided opinion of the Judges who compose that Superior Court. It belongs not exclusively to the Courts of either Country to inter­pret treaties. If they differ, no inference but what arises from the force, the reason of their arguments, can be drawn. Where the supreme judicial authority of both agree in opinion, that opinion is of the greatest weight.

It has been endeavoured in the Answer, (pa. 14.) to draw an inference from an extract of a letter from the American Commissioners to Mr. Hartly, dated Passy, July 17th. 1783, in support of the position, that war interest should not be allowed. The Claimant makes no exception to it, but he believes, that if the present was a discussion before the highest Court of Law of Equity, either in Great Britain or the United States, the Jud­ges would not listen to such an argument. The answer would be— ‘We are bound by our oaths to judge upon the words of the instrument, as it is before us—Our consciences are not to be guided by the correspondence of the Ministers on either side—If the Commissioners on both sides were present we could not examine them—Who ever heard of legislators be­ing call'd upon to explain the meaning they affix'd to words? 'Tis theirs to legislate, to us belongs the interpretation of their acts. As the letter or extract is before the Board it will be observed upon, and one undeniable position being ceded, it is thought a conclusion, diametrically opposite to that of the Attorney General, will be fairly drawn.

The provisional articles which were to form the basis of the definitive treaty of peace were signed the 30th of November, 1782. They laid the foundation of peace and re­conciliation—They were to be inserted in and constitute the treaty of peace. Whatever therefore was meant by the 4th provisional article, must be the meaning of the 4th arti­cle of the definitive treaty. This is the position not to be denied. These articles were sent over to Congress: They knew the meaning of the word debt, and that it included interest and principal: Satisfactory as the articles must have been, still Congress wished for something more. From the circumstances of the country at the close of the war, they thought it reasonable that time should be given for payment, and a deduction of interest agreed to, and instructed their Ministers accordingly.

For what purpose then was the letter of July 17th, 1783, written? To obtain an a­mendment of the article. In what points? In order that instalments might be settled, and a deduction of interest agreed to. Was this amendment obtained? No. What is the consequence? That instalment laws and deductions of interest were a violation of the treaty. To recur to the argument on this point.—"After this, if war interest was meant to be claimed on the part of Great Britain, some unequivocal terms should have been [Page 32] used, comprehending it; and the not using such terms, is an acquiescence in the opinion entertained by Congress, which had been communicated by the American negociators of the treaty." Let this inference be contrasted by maxims, and it will at once fall to the ground. If he who can, and ought "to have explained himself clearly and plainly, has not done it, it is the worse for him; he can not be allowed to introduce subsequent re­strictions, which he has not expressed." To this authority from Vattel, the Claimants will add a maxim from a writer equally respectable: "All contracts are to be taken according to the intent of the parties, expressed by their own words, and if there be any doubt in the sense of the words, such interpretation must be made, as is most strong against the grantor or obligor, that he may not by obscure wording of the contract, find means to evade or elude it."

The Claimants believe the 4th article was, as its terms express it to be "reciprocal." If the contrary is the case, as contended for, the United States are the grantors, the obligors, and for the most valuable of all considerations: Their country was discovered by Britons, peopled by Britons, and during its infancy and weakness, had been guarded and protected by the blood and treasure of Britain. It is true, that as the Colonies matured in strength and vigour, they were in a fair way of repaying, by an almost ex­clusive commerce, even if they had not actually repaid, the debt of protection. But if at the close of a civil war, they demanded and obtained the acknowledgment of their Independence, and the cession of an immense territory unoccupied by citizens of the United States, granted by the Aborigines to the Crown, and in an extensive line join­ing other possessions of that Crown; and in lieu of this acknowledgment and cession, they covenanted, that all debts contracted in a time of mutual confidence, should be paid, the United States are grantors and obligors for a valuable consideration, and can not by any subsequent restriction of the meaning of any word in their contract, lessen the force of their obligation.

There are stronger objections to any argument being drawn against the Claimants from Lord Carmarthen's conversation, than from the Commissioners correspondence. Courts of law will not admit parole testimony to contradict a deed; and surely conversation is not to contradict a treaty. But what is the purport of it? Two years after the negocia­tors of the treaty had fruitlessly endeavoured to have the fourth article amended, so as to admit of instalments and a deduction of interest, the same subject is broached, but the expressions are widely different, and in both cases correct.

While the negociation was yet open, and there was a possibility of an alteration being made, the language is, "Congress think it reasonable that the interest which may have accrued during the war, shall not be payable. In June, 1786, Mr. Jay urges the policy of giving up the interest during the war, thereby plainly allowing the right to demand it, although the United States may have thought it impolitic and severe to exert that right. Mr. Jay's decisions as Chief Justice of the United States, corroborate this construction. Lord Carmarthen's ideas of treason, do not appear extremely correct; and the Clai­mants, yielding in loyalty to none of their fellow-subjects, would have thought it no crime to have received their debts during the war; but his Lordship's slight expressions concerning the interest, and his wishes that the courts were open for recovering the prin­cipal, were a very mild reproof upon the instalment and other laws infringing the treaty. As to interest being left to after consideration, that has been the case. Instalment laws, deductions of interest, treasury payments, and a variety of other impediments, have been the subject of after negociation and treaty.

The first clause only of the sixth article of that treaty, which speaks of bona fide debts contracted before the peace, and losses and damages occasioned by impediments and in­solvencies, has been inserted in the Answer to the claim of Cunningham and Company. If the article had rested at the end of the first clause, it might with as much reason be urged, that no interest at all should be allowed—that when the whole debt was lost by [Page 33] insolvency, the original sum due, should be the full compensation; and where a partial insolvency happened, the only damage or loss was to be the difference of the sum reco­vered and the original debt. Debts bona fide contracted before the peace, and bona fide debts contracted before the peace, mean one and the same thing—both include interest, or neither does.

The general tenor of the interest argument sufficiently accounts for the omission of, and total silence upon, a latter clause of the 6th article of the treaty of amity, in the Answer to Cunningham's claim: As it contradicts nothing, but supports every thing ad­vanced in this Reply, the same reason for silence does not apply. It will be observed upon.

The said Commissioners in examining the complaints and applications so preferred to them—(for what? For debts lost or impaired by legal impedime [...]‘are impowered and required in pursuance of the true intent and meaning of [...] article, to take into consideration all claims, whether of principal or interest, and balances of principal and interest, to determine the same respectively, according to the merits of the se­veral cases, due regard being had to the circumstances thereof, and as equity and justice shall appear to them to require.’

The construction on the 7th article of the treaty of peace formerly contended for, has been abandoned, and the true construction of the 4th article, has been solemnly settled by negociation. All questions on the former being now at rest for ever, it will here be only remarked, that however proper the subject was for discussion between Mr. Jefferson and Mr. Hammond in 1792, there was no necessity for any allusion to it, either in the decision of M'Call v Turner, or in the Answer to the memorial of the Claimants. Not the most distant imputation is meant to be made upon the integrity and virtue of the Judges who decided that case; but the legality and propriety of the decision may be canvassed and denied without a shadow of disrespect to them. The great Lord Hard­wicke, after full argument, and long consideration, decided an important cause; ano­ther hearing was afterwards had, and having taken a twelvemonth's time to consider, he reversed his own decree, concluding with this observation: "These are the reasons which induced me to alter my opinion, and I am not ashamed of doing it; for I always thought it a much greater reproach to a Judge to continue in his error than retract it." Many re­marks might be made upon the decision in M'Call v Turner, but they will (except one) be avoided. President Pendleton, after declaring, that interest during the war ought to be deducted, says, "The opinion of the Chief Justice of the United States in a case (Jones v Hylton) before the Federal Court, was cited, in which he is stated to have deli­vered to the jury a charge differing from the opinion I have just expressed, but I cannot con­cur with him." In the Answer (pa. 38) the case of Jones v Hylton is mentioned, and this remark is made: "To this judgment all the Inferior Courts are bound in duty to con­form, and it is believed actually do conform." Juries are sworn to give verdicts according to their evidence; the opinion of the Court is their evidence what the law of the land is; —They disregard it. Inferior Courts are bound in duty to conform to the judgment of Superior Courts, but they cannot concur.

The observations in the Answer, (pa. 25 & seq.) do not require reply. Damages done in war, and interest occurred during a war, are too widely different to be compared to­gether, or to have inferences drawn from the law of nations respecting one, applied to the other; in the authorities cited, they are opposed to each other. On a peace, da­mages done in war, whether to public or private property, are to be buried in oblivion, these being the effects of war; but debts retain their full force.

Here the Claimants rest the question of interest during the war, with only one remark, That however disposed they might themselves have been to indulgence and some allow­ances, if they could have obtained payment of their debts at the peace, it is not rea­sonable to expect them now—nor are they to be bound by what others have done, "Qui­libet potest renunciari jure pro se introducto."

[Page 34]THE Claimants respectfully trust and believe, that they have clearly established the following points:

1. That in Virginia there existed legal impediments to the recovery of all British debts contracted before the peace, from the time of the occlusion of the Courts in 1774, until the establishment of the Federal Judiciary.

2. That the treaty of peace did not, of itself, by its own mere power, repeal those impediments; and that the Legislature of Virginia, who alone had the power, refused to repeal them.

3. That even if the plausible theory of the repealing power of the treaty was as cor­rect and sound, as it is unsound, or at most, doubtful; yet, as the general opinion of the Legislature and people of Virginia, and the practice of the Courts was the other way, no fault is imputable to the Claimants.

4. That there are impediments yet existing, which even the Federal Courts cannot re­move, as they are obliged to determine according to the laws of the State: These arise from the lapse of time, which is against the Claimants, altho' the Courts were shut to them, so that in every instance, where their books are all their evidence, judgment must be given against them; in cases where other evidence can be produced, the act of limitations is a bar, altho' it would not have been a bar, could the Claimants have sued at the peace; and in all cases, where bonds were taken in 1777, for debts due years before, they are reduced by a scale, which the Claimants could not foresee, and which was passed several years after taking the bonds. That as full compensation can­not in the ordinary course of judicial proceedings be actually had for such losses, the United States have agreed to make it. That the General Government is alone answerable for any violation of treaties; and that if the State Governments suffered legal impediments to remain, and in consequence, the claims of creditors have been delay'd, and the common law evidence to support such claims lost by the delay, or statutes of limitation had run against them, the General Government cannot avail itself of these circumstances; be­cause this would be first to violate a compact by delaying a claim till the evidence of it was lost, and then to avail themselves of that act which they had created.

5. That proof of the actual insolvency of debtors at the peace, would, in almost every instance, be impossible, and that it is not required of the Claimants.

6. That where insolvency, omission, or any other cause, is alledged to have equally operated to produce the loss, that is the defence of the United States and must be sup­ported by proof.

7. That the claimants are entitled to full interest on their demands, and that they are not to wait the event of suits until years after the Commission shall be broken up.

It remains now to be shewn, how each particular class of demands annexed to the memo­rial in this particular claim, comes within the true intent, spirit and meaning of the trea­ty of amity, and on what grounds the Claimants demand payment of the several sums set forth in the several lists. In the Answer on behalf of the United States, (pa. 60.) a re­mark is made upon the list of debts, which might have been spared; The Claimants are not hurt by it; Conscious of their own integrity, they do not believe any imputation was intended to be cast upon them; indeed the whole tenor of the Answer forbids them to entertain an idea of the kind. ‘It is said while such demands furnish a proof of the ex­treme [Page 35] care with which the Claimants have been gleaning their books and papers, they are liable to this objection, that the two nations never contemplated such to be subjects to the awards of the Commissioners’ The Claimants have been gleaning no books and pa­pers—It was the constant practice with the resident factors of the mercantile houses in Scotland who had retail stores in Virginia, to make out once in every year and transmit to their employers, correct lists of all outstanding debts, divided into three classes, bad, doubtful, and good—The factors knew every individual in the neighbourhood of the stores, and the statements thus made could be relied upon. If they could ever have been dispo­sed to dishonesty, they would have added to the bad from the doubtful, and to the doubt­ful from the good, because they had allowances for bad and doubtful debts, bringing forward this list therefore, omitting only those which were bad in 1775, and those who have paid since the peace, is acting in the fairest and most candid manner. The lists also furnish full proof of the industry of the factor in collecting, and the punctuality of the neighbourhood in paying before the war—No old longstanding debts appear—none barred by the act of limitations; none which could not be proved agreeably to the book debt law—But it is said the demands are too small to be subject to the award of the Board — ‘that the maxim de minimis non curat lex, and the honor and dignity of the nations dictate their exclusion.’ —If this is so, the Claimants must be the sufferers; for they cannot fabricate books for large debts, when only small ones are due.—But the answer it­self affords the Claimants the best Reply, "The principles of equity are the same whe­ther the debt be one shilling or one hundred pounds"—And although, if burthensome and expensive proof of every small claim could be required of the Claimants, they might think it beneath the dignity of a great nation to insist upon the production of that proof, and if insisted upon, might in many instances abandon, rather than pursue the demand, they also think, that the burthen of the proof is on the other side, and that it is more consistent with the dignity of a nation to pay than contend for trifles.—As there is no power in the Board to listen and agree to compromises, the Claimants must contend for principles.

LIST A. THIS List contains debts, the only evidence of which are the store books of the company. None of these had been two years due at the time of the occlu­sion of the Courts, and at no time since the peace, could any suits be maintained for them in any Court of Virginia. Claimants who immediately after the peace sent out, and at great expence have ever since kept Agents in this country, exerting every industry to collect their debts, cannot be supposed guilty of any wilful omission. In this list no complaint is made of the insolvency of the debtor, but of the impediments occasioned by law, and the decisions of Courts.

LIST B. This list contains debts due from persons believed solvent at the peace, but who be­came totally insolvent during the existence of legal impediments.

LIST C. Contains debts due from persons whose estates are yet reputed solvent and from whom a recovery in part may be expected. The claim for these is filed at present, both to a­void the lapse of the 18 months, and because they think, agreeably to the treaty, that as full compensation cannot NOW be obtained from the debtor, they are strictly entitled to an award on assigning their vouchers to the United States. They were well disposed to be at the trouble of prosecuting the debtors, and they were advised by their General Agent, in all cases of debts evidenced by specialty, if the debtor would pay as much as he could be compelled to pay, as the Law is now administered, to receive the money. They were also advised in all cases of book accounts, where the debtor refused making any new pro­mise [Page 36] or acknowledgment of the debt, to accept the principal if he would pay it; this they were told was aiding the United States. But as they cannot compel a debtor [...]o confess a judgment for their full demand, as they cannot compel special verdicts, as it is con­tended that general verdicts are conclusive as to the amount of their demand, and that a compromise will exclude them from any claim, they are at a loss how to act until these points are decided.

LIST D. Contains debts due from persons who were reputed solvent at the peace, but who left the State during the existence of laws preventing the creditor from prosecuting them.

LIST E. Is a statement of losses occasioned by deductions of interest, and the difference of cur­rency. Their accounts were kept in pounds, shillings, and pence, and at present, a less number of dollars make one hundred pounds than at the time the debts were contracted; this is an impediment to a recovery of the full value, and creates a loss and damage in the debtor. The first question of interest has been fully argued. All arguments that could apply to losses occasioned by the depreciation law, will apply to difference of cur­rency. Instead of swelling this Replication with further observations, the Claimants will content themselves with referring to Dr. Hutchinson's excellent treatise on Moral Philosophy, Book II. chap. 12. s. 4.

The short time allotted for preparing and printing this Reply, and the necessity of be­ing punctual, will, it is hoped, be an apology for incorrectness; the numerous defi­ciencies arising from the inability of their General Agent, will undoubtedly be supplied by the candor, abilities, and impartiality of the Board.

The Claimants it is admitted are British subjects. They will produce the best proof the nature of the case will admit of, that their debts were bona fide contracted before the peace, and that their debtors were citizens or inhabitants of the United States.

The debts claimed are still due and owing; full compensation cannot now be actually had, in the ordinary course of judicial proceedings; and the loss they have sustained, without any manifest delay, negligence, or wilful omission on their part, has been occa­sioned by lawful impediments, "For every such loss, (to use the words of the An­swer) full and adequate Compensation is promised by the United States;" and God forbid, that a promise so just, and so honorable, should not be fulfilled with exemplary fidelity.

WILLIAM MOORE SMITH, General Agent for Claimants.




To the Commissioners for carrying into effect the 6th Article of the Treaty of Amity, Commerce and Navigation concluded be­tween his Britannic Majesty and the United States of America, on the 19th November, 1794.
OBSERVATIONS On the part of the UNITED STATES by their AGENT, to the reply of DANIEL DULANY.

THE agent for the United States regrets that he finds himself under the necessity of again troubling the board upon the subject of the claim of Daniel Dulany. The reply contains some positions and observations not before urged, which are of real importance and ought not to go unanswered. It con­tains others, which, whether true or not in them­selves, need not and therefore will not be contro­verted.

The material facts in this case, according to the al­legations of the claimant, to be found in his original claim and subsequent reply, may be stated as follows:

[Page 4]Ann Tasker, some years before the commence­ment of the revolution war, departed this life, pos­sessed of a very considerable estate, of which a princi­pal part, to the value of £42,000 sterling was in cre­dits, evidenced by bonds and otherwise. By her will she devised various pecuniary legacies of the value of £28,000 sterling, appointed Daniel Dulany the elder, sole executor, and his son Daniel Dulany the young­er, residuary legatee. The debts were all contracted and payable in the then colony, now state of Mary­land, where Ann Tasker, as well as the debtors and executor, resided. The executor undertook the trust, and died in opulent circumstances in the year 1796. The residuary legatee was and always has been a real British subject, and the debtors to Ann Tasker, as well as her executor, became citizens of the state of Maryland when the separation of the two countries took effect. During the war the debtors fully paid to the executor, their debts in the lawful money of the state, which was depreciated at the time of payment, in so much, that upon the sum of £12,559 1 8 sterling, which was thus received, the loss was £10,344 8 7 sterling, the real value of the money being £3655 11 5, according to the scale of depreciation afterwards established by law in that state. For this difference £10,344 8 7 sterling, the residuary legatee now applies for payment from the United States, alledging it ought to be awarded to him under the treaty of 1794, in as much as no re­covery can be had of it, either from the executor, or from the original debtors, who have received acquit­tances in full from the executor. An act of the state of Maryland was in full force at the time of payment, [Page 5] making the money a legal tender. The necessary proofs for establishing this statement to the satisfac­tion of the board, the agent for the United States in­sists should be produced by the claimant. If these proofs shall be produced he then contends the case is not relievable under the treaty of 1794.

In the answer to the claim of William Cunning­ham and Company, the agent for the United States discussed a variety of propositions, some of which con­cern the present claim; such as that the jurisdic­tion of the arbitrators was limited, and that the claim­ant is bound to prove every matter essential to his case to bring it within the relief of the treaty. He also endeavoured to lay down the true interpretation of the 4th article of the treaty of peace, and the 6th ar­ticle of the treaty of amity, to explain their connection with each other, and to prove that the latter was confined to compensation in such cases only where losses had happened by reason of the operation of le­gal impediments contrary to the former. Upon these several heads as well as relative to interest during the war, he begs leave to refer the board to the ar­guments which have been there used. The case which has been stated presents for consideration these positions;

1st. That the claimant was always, and is now a real British subject.

2dly. That he was the residuary legatee of Ann Tasker, and for the actual residuum, which existed in out-standing debts was a creditor until the debts were paid.

[Page 6]3dly. That the residuum was £14,000 sterling.

4th. That the debts were contracted in Maryland, where, when a colony, a legislative power over its internal affairs was exercised, and where the laws regulated the mode of fulfilling and discharging con­tracts there made as in an independent state.

5th. That Ann Tasker, the creditor, as well as her executor, and all the debtors were inhabitants of Maryland when the debts were contracted, and so continued always.

6th. That the debts were fully paid by the debtors to the authorized agent of the creditor, who accept­ed the money in payment, gave acquitances, and de­livered up the bonds.

7th. That the acceptance of the money might have been refused, and if it had been the legal effect of the refusal would have been a legal question.

8th. That the executor, unless he committed a breach of trust in receiving the payment, cannot be charged with the loss by depreciation, nor the debt­ors who have fully and legally discharged their debts, so that this loss must remain with the claimant unless the United States under the treaties of peace and of amity shall be made responsible.

9th. That the difference between the sterling value of the money in which the debt was contracted, and the sterling value of the money in which it was paid, forms the sum which is claimed from the United States.

[Page 7]The agent for the United States contends that such a claim cannot be maintained before the board, who have no authority to award payment by the United States in a case so circumstanced, and therefore any such award will be void. The principle on which the defence of the United States rests, against a claim of this description is, ‘that whenever a debt is completely satisfied according to the laws of the country where the debt was contracted, and to be paid, by the payment of the debtor to the creditor, or his authorized agent which has been accepted, it is a final discharge.’ This, as a general principle, cannot be denied. In the case reported by Brown 376, it is expressly affirmed by the Lord Chancellor that if a transaction is legally satisfied in the country where it arose nothing is left for equity to do. This adjudication related to a contract made before the war in South Carolina, evidenced by bond, and af­terwards satisfied there by a payment in paper money at the legal nominal value in that state during the war. Whether the creditor was or was not a real British subject does not appear, and though he were, the principal of lexloci, as to contracts, has the same operation. If a British subject will go into Russia, and there make a contract with a Russian, and the contract is satisfied according to the laws of Russia, the satisfaction is final and conclusive according to the jurisprudence of England. Before the revolu­tion, if any Englishman or Scotsman should have gone from London or Edinburg into the colony of Maryland, and there given a credit, or contracted a debt, a satisfaction there according to the local laws of the colony, would have been deemed a compleat [Page 8] satisfaction in every court at Westminster. Under the colonial system as well as since the independence of Maryland, the legislature could make a paper mo­ney current and a tender in payment, of debts con­tracted within its limits. In many colonies before the war, such as Pennsylvania, Virginia, New Jersey, Massachusetts, &c. &c. there was a paper currency. The 4th, 5th, 6th, 7th and 8th particulars above reci­ted, deserve to be well considered, as they contain the grounds of the defence in this case; and the 1st, 2nd, 3rd and 9th are submitted, with such proofs as may be offered concerning them.

The 4th article of the treaty of peace is the basis of the 6th article of the treaty of Amity. The form­er never meant to annul or set aside, in whole or in part, any compleat payments which had legally been made to, and excepted by the creditor.

A manifest difference exists between payments to a state and payments to a creditor. If the former assumed authority to receive payment it also abroga­ted what was so done by the provision in the treaty. In all adjudications respecting confiscations or pay­ments into the state treasuries, it was taken as a foun­dation, that the creditor had never accepted the pay­ment, and was not bound by it. But if a creditor is not bound by his own act in accepting payment ac­cording to the laws of the place, where the contract was made, and where it was to be fulfilled, what is there can bind him? It was by the acts of debtor and creditor that the debt was originally contracted, and it has since been paid by the one and accepted by the other; the contracts are equally valid, that which in­curred [Page 9] the debt and that which discharged it. It is not therefore to be supposed that the 4th article of the treaty of 1783 was intended to set aside pay­ments accepted by the creditors themselves, under an idea that such payments were legal impediments. The impediment arising from the receipt of the cre­ditor is an impediment of fact, an impediment which could not have been without his concurrence. Can it be reasonably supposed that this article was intend­ed to open and unsettle the numberless liquidations and payments to which the parties, debtor and cre­ditor had agreed? By the 6th article of the treaty of 1794 the United States can be liable in no case what­ever, unless the loss has arisen from some legal im­pediments which have prevented a due recovery of the debts in pursuance of the treaty of peace, and losses of this special description only are referred to arbitration. This is fully illustrated in the case of Cunningham and Company, to which the agent of the United States prays leave to refer.

If this view of the two treaties be correct, and if payment to, and acceptance by a creditor according to law, be not a legal impediment intended to be remov­ed by the 4th article of the treaty of peace, it follows that in cases where payments in paper money have been accepted by creditors, the losses, if any, are not reparable under either treaty, but must lie as they have fallen.

According to this doctrine, if in the present case, the bonds had been assigned to the claimant by the ex­ecutor, and if the claimant had accepted payment in [Page 10] paper money he would not be relievable under the treaty of 1794.

There is no difference between the acceptance of the creditor himself and the acceptance of an autho­rized agent. The executor received full authority by the will of the testatrix, who died before the war, to receive payment of these debts, and he alone was legally authorized to receive payment.—When re­ceived, the executor held the money paid to him in the character of trustee for the legatees. If in the hands of the trustee, the money depreciated without his fault, the loss will fall on the cestuique trust for which he has no remedy, and which properly may be termed a misfortune.

But if the executor has committed a breach of trust either in accepting payment as the claimant, in his reply, seems to intimate, by declaring him ‘parti­ceps criminis,’ or by any other act, then the ex­ecutor was responsible for it, and his representatives may now be made to repair the wrong in the ordinary course of judicial proceedings in Maryland, for let it be recollected that the claimant represents him as having died fully sufficient and solvent to make good the loss here claimed from the United States.

There is a manifest and essential difference between the confiscation of a debt belonging to an enemy by a sovereign, and the payment of a debt by a debtor to an enemy creditor, which he accepts. The hazard that is run of losing the debt entirely, by the laws of war, as it may be taken away during the war by con­fiscation, and may not be restored by the terms of [Page 11] the peace, may induce the creditor to accept specific commodities at an over-rated value, or a depreciated paper currency in payment. If under such circum­stances, the creditor or his agent accepts in full pay­ment a thing not one half the value of the debt, it is his own contract that ought to bind him in reason, and therefore in equity also.

Confiscation is a lawful appropriation to public use of the property of an individual who offends the state, or who is an open enemy. This property may be restored by the sovereign without interfering with the rights of a third person. In the case of debtor and creditor where payment has been accepted, a re­storation cannot be made without infringing directly or indirectly private rights. Though then it be ad­mitted that the 4th article of the treaty of peace sets aside the confiscation of debts, it does not also follow that it sets aside payments accepted by the creditor or his authorized agent, in a depreciated current money.

The state of Maryland confiscated no part of the debts due to the testatrix, Ann Tasker, but in the confiscation laws, the debts were expressly excepted. This exception proves the sense of Maryland, that a debt paid in depreciated money, was not considered as a confiscation. The claimant seems to contend that there is no difference between payment in depreciated paper and a confiscation; that the former is a confis­cation in another form. The difference, it is hoped, has been shewn; the former cannot take place with­out the participation of the creditor or his agent; the latter is effected independently of such participa­tion. In the former case, when the money is receiv­ed [Page 12] according to law, the debtor is discharged, and it does not concern him whether a profit or a loss is made out of it by the creditor. The debt is paid according to the laws of the country, where, by the original contract, it ought to have been paid; and re­lative to payments so made, the laws bind an alien as firmly as a citizen. In whatever light, therefore, the claimant may be considered, whether as an alien or as a citizen of Maryland (and in one or other of these lights he must be considered after the 4th day of July, 1776) the tender law made in 1777 by Maryland, must operate on the debts contracted and payable there. It is hoped it will not seriously be disputed that Maryland was an independent state in the year 1777, for even the Lord Chancellor and the master of the Rolls of England have openly affirmed it. Wright and Nutt Henry Blackstone's reports 154. This was a case between a British sub­ject and a citizen of South Carolina. The same opinion is declared by Lord Loughborough, in the case of Folliott and Ogden. Henry Blackstone's re­ports 135. ‘A civil war breaks the bonds of society and government, or at least suspends their force and effects. It produces in the nation two independent parties, considering each other as enemies, and ac­knowledging no common judge; therefore, of ne­cessity, these two parties must be considered at least for a time, as forming two separate bodies, two distinct people.’ &c. Vattel, B. 3d. Sect. 293.

‘But when a nation becomes divided into two par­ties, absolutely independent, and no longer acknow­ledging a common superior, the state is dissolved, and [Page 13] the war betwixt the two parties, in every respect, is the same with that of a public war between two different nations.’ Vattel B. 3. Sect. 295.

It has been said by the claimant, that upon the se­verance of an empire into two parts, if one subject adhere to one part, and another to the other, neither part can annul the contract between the two indivi­duals. It is however asserted, that each part having become a sovereign independent state, has compleat power, if a war subsists, to appropriate the contract to its self, by the rights of war, and to make laws that reach all contracts made and to be fulfilled within its limits, as well those between its own subjects as aliens.

The claimant need not have taken any trouble to assert that ‘if one empire is subdivided and forms two, the debts contracted, prior to that event, still are to be satisfied.’ This is fully answered by the fact of the case, for the debts have been satis­fied according to the laws of the country where they were to be paid, and this satisfaction is valid every where. Nor though it be admitted that such debts could not be confiscated or extinguished by a legisla­tive act of the state, does it follow that payments made and accepted in the money of the country, declared a legal tender, shall not avail as compleat satisfaction.

It is asserted by the claimant, ‘that the state of Maryland was bound in good faith, so to modi­fy its laws, as to enable him to recover the differ­ence here claimed, and as that has not been done, and perhaps cannot constitutionally be done, that he is now entitled to compensation under the 6th [Page 14] article of the treaty of amity.’ To this it is an­swered that no such modification was necessary, be­cause the treaty of peace not only repealed all legal impediments which had been created to the recovery of the full value in sterling money, of debts there­tofore contracted, but was always considered in that state as the supreme law of the land, which no act of the state, either before or since the peace, could con­travene or invalidate. Therefore, this cannot be a sufficient ground for demanding compensation from the United States under the treaty of amity. If how­ever, a payment accepted by the creditor, be a legal impediment within this treaty, which is not admitted, but denied on the part of the United States; and if it has been annulled, recourse should be had to the ori­ginal debtors, who are still solvent for the difference in value between the money due and the money paid.

The agent for the United States acknowledges that he expressed himself inaccurately when he said that the treaty of 1794 contemplated no remedy, except what was given by the treaty of 1785; he meant to have said that the treaty of 1794 contemplated no re­medy except for a loss that had been occasioned to the creditor in consequence of the operation of some legal impediment, contravening the treaty of 1783, and without any fault or laches on his part. Admit­ting that the treaty of peace shall be construed to annul the confiscations of debts as being a kind of legal impediment meant to be removed; if there is a real difference between debts confiscated and debts paid to the creditors or their agents, duly authorized, [Page 15] which it is hoped has been satisfactorily shewn, any argument concerning the former is to be considered as irrelative to the latter.

It is also asserted by the claimant, that however the state might pass laws to bind its own citizens, it could not pass laws to bind a subject of Great Britain. To these an answer has been given, and here it is repeat­ed, that a state, by the laws of nations as recognized by the English law, has a right to pass laws that shall govern all contracts made and to be fulfilled within its territory; and such laws bind all persons, as well the subjects or citizens as foreigners or aliens. A law of this kind is compulsory on all, and foreigners have no right to expect a different law concerning their contracts made and to be fulfilled in the state, than the subjects enjoy in the like cases.

Against this proposition, nothing urged by the claimant will be found to militate. But it will be ob­vious that it has been avoided, and that the arguments as well as the authorities, on which the claimant has relied, are beside, and do not meet the principle on which the defence of the United States has been placed.

The claimants seem to rely on a decision in the cir­cuit court of the United States, which he has cited as applicable in his favour. The contract was made in the state of Pennsylvania, for a sum of money to be paid in France, where the parties intended payment to be made in specie and not in paper medium called as­signats. It was decided that the creditor was not bound to accept the paper. This decision is legal and [Page 16] just, but in two points the facts of this case differ from the case of the claimant. 1st. The contract was made in one state, to be performed in another. 2d. The assignats were not accepted in pay­ment.

Suppose the assignats had been accepted in payment by the holders of the bill in France, let it be asked whether the drawer would not have been forever, and every where discharged. Undoubtedly he would.

The like doctrine is established in the other case cited by the claimant, Da Costa, vs. Cole Skinner 272, which is consequently entitled to the like ans­wer. There too, payment was not actually accepted in the lessened money of Portugal, but payment was refused because the parties did not contemplate any change in the value of the money, and the drawer and payee were both British subjects.

The question in this case was not on the validity of a payment accepted in lessened money, but how the payments ought to have been made.

The claimant has also quoted the sentiments of Judge Sitgreaves, in the case of Hamilton, vs. Eas­ton, in the circuit court of North Carolina, which need not be questioned on the present occasion, and perhaps on no other. They seemed not to furnish any opposition to the present defence.

It is thus the agent of the United States has en­deavoured to answer those observations of the claim­ant which have appeared to him most material, and [Page 17] to support the proposition that a loss arising from the payment, by a citizen, of a debt due to a British subject, before the war, in a depreciated currency, the lawful money of the state where the debt had been contracted, and was payable when a colony, which payment the creditor or his agent, has accepted, is not a loss that can be awarded to be paid by the U­nited States, under the treaty of 1794, and with great deference his arguments are submitted to the consideration of the commissioners.


In the Case of Daniel Dulany.

FOR the purpose of having a subject of so much importance, as the general question which occurs in this case, maturely considered, on full discussion and argument,

Ordered, that the agent for the United States have leave, within eight days, to lay before the Board such further argument as he may think pro­per, for obviating the points suggested in the fol­lowing questions.

1st. It has been stated on the part of the United States,See Answer, &c. in Han­bury's case. that the effect of the "concession" made by the treaty on their part was "to revive" debts which were held to be satisfied; and in the case of pay­ments into the treasury, before the peace, it never has been disputed that the creditor is entitled to a remedy under the treaty, although it was adjudged in the last resort, and held to be a law, that by such payments into the treasury, pursuant to an act of the state declaring the debt to be thereby extin­guished, it was accordingly so extinguished and sa­tisfied at law. Is it not, therefore, clearly under­stood by both parties, as a principle, that a dis­charge or extinction of the debt at law before the [Page 2] treaty, is not of itself a bar to the remedy thereby provided; but that it must also appear to have been such an extinction and discharge as proceed­ed from the free concurrence and voluntary act of the creditor, and not from the effect and operation of law; such operation of law, in bar of all legal remedy, being on the contrary relied on as the main foundation of a right to claim under the treaty?

2dly. By the "Tender law" of Maryland, pass­ed in April, 1777, it is enacted that the paper mo­ney in question shall pass current and be received in payment and discharge of all manner of debts.’ Do the United States contend that any individual living within the state of Maryland, whether Bri­tish subject or American citizen, was at liberty to disrega [...] this law, and ought not to have obeyed it? If not, is the loss arising from his obedience ascri­bable under the treaties, to his own free concur­rence and voluntary act, or solely to the act of the law itself? Having it in view that the question here raised, refers, not to an implied concurrence, neces­sarily connected with all obedience, by fiction or maxim of law, but to that true meaning, purpose, and understanding of the party, acting upon choice and fair alternative, which arbitrators in equity are bound to require.

3dly. But supposing it to be argued on the part of a public government that an individual was at at liberty, and ought to have disobeyed a precise [Page 3] and positive law of the state in which he lived, would he as a creditor, or the person for whose be­nefit he acted, have been in a better situation in consequence of his disobedience? In obeying the law, he received something; by refusing to obey it, he would have forfeited all—for it is also there­by enacted, that if the creditor refuse to receive the paper money tendered, as a satisfaction, the whole debt or demand shall be forever extinguished, and if any suit shall be commenced for the recovery of such debt or demand, after tender and refusal as aforesaid, the defendant may plead payment, and give this act and the special matter in evi­dence.’ —And further it is thereby provided that it shall, in that case, be lawful for the debtor to demand the bond or contract; or a discharge of the debt and if the creditor shall refuse to deliver up the same or give such discharge, it shall be lawful for such debtor to sue him for damages, to the extent of the debt, with costs of suit.—How it is to be maintained that a debt was voluntarily given up when it could not be saved? Or that a claim under the treaty is to be less admissible or just for compen­sation on account of his having been deprived by the above law of only part of his debt, than it would have been, if, in consequence of his disobe­dience, he had been thereby deprived of the whole? Was the extinction less compleat, or re­medy more attainable, under the law, in the latter case than in the former?

4thly. To place the same subject in another point [Page 4] of view—It has been argued in this case, on the part of the United States, that ‘by the 4th article of the treaty of peace it was not intended to set aside payments accepted by the creditors themselves under the idea that such payments are lawful im­pediment.’ —But ought it not rather to be consi­dered and discussed how far the effect given by law to those payments, being full value of the debt in paper money, though but a small part of the full value in sterling money, as a compleat satisfaction for the debt, and a lawful bar or impediment to all fur­ther recovery, shall be available not to the debtor (who is here out of the question) but to the nation who made the law, and who, in opposition (as it is argued) to their own stipulatton that ‘creditors should meet with no lawful impediments to the recovery of full value in sterling money of all bona fide debts theretofore contracted,’ without any distinction or reserve whatever, suffered that law to remain in existence and force as a perpetual bar or lawful impediment to the recovery of what was "still owing" under the treaty, of the "full value in sterling money" so secured?

7thly. May it not be urged, not as a necessary argument, but as confirming an interpretation fa­vourable to the claim of a British creditor, who re­ceived paper money in obedience to the law, that such interpretation is manifestly consonant with justice to both parties—to the British creditor, in as much as it saves him from the loss of the greater part of a just debt in consequence of his [Page 5] compliance with a public law, binding upon him at the time; but from which, being a British sub­ject, he could derive no participation of benefit— and to the Unite States, in as much as they are only thereby called upon to pay for the loss sus­tained by an alien, in consequence of their own laws, for their own benefit; and from which los [...] they derived a benefit accordingly?

Extract from the Proceeding of the Board,
G: EVANS, Sec'ry.
[Page 7]

In the Case of Daniel Dulany.

THE agent for the United States, respectfully offers the following observations, upon the several points suggested by the commissioner, in their order of the 7th instant.


When the agent for the United States, in the course of his argument in Hanbury's case, repre­sented the effect of the treaty on debts that might have been deemed to have been paid before the peace, he had in view those debts only which had been paid into a state treasury. The Board will be pleased to recollect that in Hanbury's case the debtor had made payment into the treasury of Maryland, pursuant to a law of that state, and that it was only with respect to the operation of the treaty on treasury payments that the agent had oc­casion to make any observations; and he there­fore trusts they will be applied to treasury pay­ments only as they were intended. With respect to payments accepted by the creditors, whether in paper money, in lands, in houses, in public securi­ties, or in any other commodity, the validity of either of these, to which both parties, the creditor and debtor had agreed was not imagined to be questionable.

After the supreme court of the United States [Page 8] had decided in the case of Hylton, that the pay­ment of the debt into the treasury of Virginia, in pursuance to the laws of that state, was not a bar to the action of the plaintiff, because the fourth ar­ticle of the treaty of peace had annulled such a pay­ment, and had placed the creditor and debtor in the same situation, as if it never had been made; the agent for the United States would not presume to controvert the operation of the treaty on such payments, though he well knows that many learn­ed and able jurists avow their dissent from that de­cision. This has however established, that a trea­sury payment is by the operation of the treaty of peace to be considered as no payment, to which adjudication not only the courts, but the states of America have conformed.

In Virginia an act was lately passed, authoriz­ing her treasurer to re-pay to the debtor the value in specie, of the paper money he had paid into the treasury, and the same has accordingly been repaid when demanded, so that treasury payments are null and void to every intent and purpose. They form no impediment either in law or equity, to the re­covery of any debt, bona fide, contracted before the late war, and due from a citizen of the United States to a British subject. The debtor is liable in like manner, as if he had made no such payment, and from him the creditor is bound to use all rea­sonable means to obtain payment, before he can have under any circumstances whatever any just ground to apply to the United States. The con­struction [Page 9] given by the supreme court to the fourth article of the treaty of peace, was supposed most liberal, and to extend it further seems inadmissable. If the treaty of peace had not been construed to an­null the treasury payments, the creditors would have lost those sums by the laws of war, by con­fiscation; but the American courts have been so liberal as to interpret the treaty to restore debts paid into the public treasury. The principle upon which this interpretation rests has been fully ex­plained in the former argument in this case, where it has been contended that there is an essential dif­ference between a payment into a state treasury, and the acceptance of payment by the creditor in any commodity, whether paper money, lands, or public securities.

Upon this occasion the agent for the United States ought not to omit to observe, that the trea­sury payments having been made without the pri­vity or consent of the creditors, might have been considered by them only as extinguishing the legal remedy for a time, which was restored by the trea­ty, in which cases the treaty might be construed to remove any impediments of that description with­out interfering improperly with private transac­tions, or without occasioning general inconveni­ence. But the agent for the United States does not admit, that it was ever understood by him, or by the United States, as a general ‘principle, that the discharge or extinction of the debt at law [Page 10] before the peace was a legal impediment, which the treaty of peace removed,’ and consequently that every adjustment, and payment between the debtor and creditor, before that period, was liable to be re-examined and unsettled. On the contra­ry, the agent denies such a principle, and contends that the Board has no power to make examination into any matter that has been settled by the debtor and creditor, according to the laws of the land. The jurisdiction of the commissioners is con­ceived to be confined to claims against the United States, in cases where the debtor and creditor have not so settled, and which are attended with all the other circumstances requisite to bring those cases within the treaty of 1794. Upon this subject, and the true interpretation of the treaties he prays leave to refer to the argument in the case of Cunning­ham and Company.


As a general rule, it is lawful for a creditor to refuse money tendered to him, in payment of a debt, and the consequence of such refusal is a dis­charge from interest and costs from the time of the tender, 3d Blac. Com. 303. Ld. Raym. 254. The United States therefore do contend, that according to common law, it was in the power of any indi­vidual creditor, if he pleased, and that it is at this day, in his power to refuse a tender, whether made in paper or specie, the lawful current money of the country; and at common law such refusal is not a public offence. So too, when a statute declares a [Page 11] thing to be money, and shall pass, and be received as such, if a creditoe refuses to take it under par­ticular circumstances, he is not chargeable as an offender, with disobeying the law, for if this disobe­dience was a public offence if would be punishable­able as such. To refuse paper declared money by statute is no more a public offence than to refuse metal declared money by statute. If therefore a creditor accepts a tender, which he might refuse, and a loss accrues in consequence thereof, it is to be imputed to his own act, and not solely to the statute which made the money a tender, and it is contended, neither treaty had in view any losses which arose in whole or in part from the conduct of the creditor.

Though it be admitted that it was desirable on the part of the United States, that the paper cur­rency should have passed freely as specie from hand to hand, yet many persons, from disaffection to the American cause, created difficulties, made objec­tions, and thereby occasioned a depreciation. These causes of depreciation, or any other, did not proceed from the will of the constituted au­thorities.

May it be permitted here to ask, whether on the part of his Britannic Majesty, or of his subjects it is contended, that a British subject ought to have receiv­ed, or was obliged by duty to receive in payment, during the late war, the paper currency emitted by any of the United States? Rather was it not an of­fence, for which by the laws of Great Britain, he [Page 12] was punishable, as all intercourse was prohibited by his King? And shall he now claim a merit for re­ceiving paper money which the laws of his country try required him to refuse?

As to the power of arbitrators in equity, it can­not be better decided than by the maxims of equity which are established in the high courts of equity in Great Britain and America.


Supposing a British subject had refused a tender in paper currency, which he might have done with­out committing a public offence, it is contended that he would have been in a better situation with respect to his right to recover his debt under the laws of the land and the treaty of peace, than he is after accepting it. 1st. Let it be observed that there is scarcely an instance between citizen and citizen, where the validity of a tender in paper mo­ney has been litigated that it has been maintained. There has been some defect, either in the quality of the bills or in the time, or in the place, or in the per­son, or in some other material thing, or as the tender might relate to the contract, for which the tender has been adjudged insufficient. The doctrine of tenders was little understood here, 'till after the peace, when a number of law-suits brought the sub­ject before the American courts. Hence it may be inferred, that on legal grounds, the tender would have been unavailing, 2dly. The effect of a ten­der and refusal is always a matter of legal construc­tion. [Page 13] It is not a payment of the debt at common law under any circumstances. It is not a payment of the debt even under the statute of Maryland, which has been quoted; but the utmost operation of that statute would have been to extinguish the remedy of the creditor, but not his right, or even supposing the right to be extinguished 'till the trea­ty of peace was made, this treaty would have set aside the effect of the tender and refusal, would have revived the right of the creditor upon the like principles, that debts paid into the treasury may be recovered from the debtors by the credi­tors, which having been the solemn judgment of the court of the United States, is the law of the land.

Thus then it is not admitted that the creditor might not have saved his debt, so as to recover the full value thereof in sterling money from his debtor. On the contrary it is contended, that by refusing the tender, this would have been in his power under the laws of the country and the trea­ty of peace. If by the act of the creditor, the debtor has been discharged, the United States are not, according to any stipulations with Great Bri­tain to be held liable. If the creditor had refused the tender, he might have recovered the whole from the debtor, the principal as well as the inter­est, to which justice would have entitled him. The inadmissibility then of this claim against the United States, rests not on the idea that the credi­tor could have had a better title to recover from [Page 14] the United States the whole, if he had refused the tender, than a part since he accepted the tender, but it rests on the principle that the creditor has done an act which has forever discharged the debt­or, which act might not have been done, and if o­mitted, the debtor would have been responsible for the debt.


It has been insisted by the agent for the United States, that by the fourth article of the treaty of peace, it was not intended to set aside payments ac­cepted by the creditors themselves, under the idea that such payments are lawful impediments. To prove the truth of this proportion nothing new will be attempted here, but the agent prays leave to refer to his former arguments in this case. If true, there seems no room for controversy, for un­less the treaty of peace did contemplate payments accepted by the creditors, as legal impediments, which it intended to annul; there is no contraven­tion of the treaty in maintaining their validity; consequently from this cause, no complaint can exist against the United States, for which they are to make compensation.

But to consider this point in the view presented by the board, it may be contended that the debtor is not discharged, merely by the effect given by sta­tute to payments, where the creditor has accepted in full satisfaction, a commodity of less than the full value, but the discharge arises from the acts of the [Page 15] creditor, who has accepted satisfaction, and given an acquittance. If a creditor received public secu­rities of the United States, or land, or any specific commodity, in satisfaction of his debt, and gave an acquittance in full, the debtor is discharged, though there is no statute giving such an effect to a transac­tion of that kind. Here it may be remarked, that British creditors have received in satisfaction of their debts, many things which have suddenly apprecia­ted in their hands: are these willing to unsettle their liquidations, and to restore to the debtors the immense gains which have accrued from this source? Would it be reasonble to demand it? Or ought such gains to be paid to the United States?

With this view of the subject then, it is urged, that the United States do not act in opposition to the treaty of peace, when they maintain the effica­cy of payments in paper money, accepted by the creditors; nor are they chargeable with a breach of that treaty by suffering such payments to re­main a perpetual bar to any demands of British creditors in full satisfaction of which they have been accepted.


There doubtless, are cases in which the creditors who accepted depreciated paper money in payment, may have sustained losses, but these losses arising wholly or in part from their own act, are not en­titled to retribution from any quarter; if from any it should be from the debtors. A claim of this kind [Page 16] only concerns the debtor and creditor; a nation not being answerable for the losses which accrue to individuals from their dealings with one another, either by the principles of reason and justice, or by the usage of nations. Therefore, any argument a­rising from the justice of making a nation responsi­ble for any losses of this kind, it is hoped will not weigh with the Board.

The agent for the United States has endeavour­ed to confine his observations strictly to the matters suggested in the order of the Board, and he trusts that they will obviate and remove all doubts that a claim for compensation from the United States, on account of payments accepted by British credi­tors in depreciated money, is not by the treaty of amity, submitted to the jurisdiction of the com­missioners.


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