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.

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 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. 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 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 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 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.

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 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 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.

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 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 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 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."Preſident's Meſſages, page 140. 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 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 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 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 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.

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, 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 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 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.

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 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 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.Bynherſhook tranſlated by Lee in his treatiſe on captures ſeems to imply that intereſt during a war in ordinary circumſtances ought not to be paid, he ſays Debts therefore which are not taken hold of, ſeem as it were ſuſpended and forgotten in time of war, but by a peace return to their former proprietor, by a kind of poſtliminy. Lee on captures, p. 118. If the proprietor at the end of the war is only reinſtated as he ſtood at the beginning of it, which is the correct operation of poſtliminy, intereſt during the war is neceſſarily excluded. If intereſt is allowed, the creditor is not in the ſame but a better ſtate, than he was when the war began. Can a debt be ſaid to be ſuſpended and forgotten during a war, if during that period it is producing the cuſtomary peace profit in the form of intereſt? This aſſertion is therefore not ſo clear of doubt, as might be ſuppoſed, and on the preſent occaſion is not intended to be examined. 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 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 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. 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 from American citizens to Britiſh ſubjects,Intereſt during the War. that had been contracted before the war.Quene whether all acts of ſtate authority ſ • bſ • quent to the treaty and contrary to it were not void. 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 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 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.

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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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. 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, 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 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.

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.