CHAPTER VII

WARE V. HYLTON. THIS CASE DID NOT DECIDE THAT THE DEFINITIVE TREATY OF PEACE OF 1783 ANNULLED THE LAW OF VIRGINIA OF OCTOBER, 1777

§ 154. This case was one of those involving the right of British creditors to recover their debts against Virginia debtors despite the law of Virginia passed in October, 1777. The action was brought in the United States Circuit Court of Virginia by a subject of Great Britain against two citizens of Virginia, on a bond dated the 7th of July, 1774. A number of States of the Union besides Virginia had passed laws which, it was claimed, had for their object the confiscation of British debts, and the case therefore excited great interest, not only in Virginia, but throughout the whole country. It was tried before Chief Justice Jay, Justice Iredell, and United States District Judge Griffin, in the Circuit Court at Richmond, Virginia, in May, 1793.

Justice Iredell, in a letter to his wife dated Richmond, June 7, 1793, says:

"We have this day given judgment in the great question as to British causes which has been depending so long. The judgment was in favor of the plaintiff, but with the execption of certain sums paid into the treasury. Mr. Griffin and myself concurred. Mr. Jay was for overruling it, etc., etc. (Signed) JAMES IREDELL." 2

13 Dallas, 199, 1 L. ed. 568.

2 Mr. Pellew, in his life of John Jay (American Statesmen Series), p. 285, states that this case was argued at Richmond in the spring of 1793. Flanders, in his "Lives of the Chief Justices," p. 388, says that Chief Justice Jay held the Circuit Court in Richmond in May, 1793, and that the February Term, 1794, of the Supreme Court, was the last session of that Court attended by him.

The great interest, both national and local, which this case excited brought to it the most distinguished members of the bar as counsel, both in its prosecution and its defence; Wickham, Ronald, Baker, and Stark appeared for the plaintiff, while Patrick Henry, John Marshall, Innes, and Campbell appeared for the defendants. Patrick Henry did not appear in the case when brought to the Supreme Court of the United States, but his argument in the Circuit Court is described by those who heard it as representing the highwater mark of the great orator as a forensic advocate.

§ 155. Having been decided against the British creditor in the lower court, the case was appealed to the Supreme Court of the United States. There Wilcocks and Lewis appeared for the British creditors, while Marshall and Campbell of Virginia appeared for the Virginia debtors. Chief Justice Jay did not sit at the hearing of the cause in the Supreme Court. It was heard before five justices, Chase, Paterson, Iredell, Cushing, and Wilson. Each delivered a separate opinion in the case. Iredell did not sit as a judge in the case,1 while Chase, Paterson, Cushing, and Wilson concurred in reversing the judgment of the Circuit Court; but there was no opinion of the Court, and the opinions of the justices differed widely in their method of approaching the case and the arguments by which they reached their conclusions.

The State of Virginia, in October, 1777, passed an act, the first and third sections of which are alone necessary to be considered. They are as follows:

"1st. Whereas divers persons, subjects of Great Britain, had, during our connection with that kingdom acquired estates, real and personal, within this commonwealth, and had also become entitled to debts to a considerable amount, and some of them had commenced suits for the recovery of such debts before the present troubles had interrupted the administration of justice, which suits were at that time depending and undetermined, and such estates being acquired and debts incurred, under the sanction of the laws and of the connection then sub1 See Note, page 256. 2 Page 247.

sisting, and it not being known that their sovereign hath as yet set the example of confiscating debts and estates under the like circumstances, the public faith, and the law and usages of nations require, that they should not be confiscated on our part, but the safety of the United States demands, and the same law and usages of nations will justify, that we should not strengthen the hands of our enemies during the continuance of the present war, by remitting to them the profits or proceeds of such estates, or the interest or principals of such debts.

"3rd. And be it further enacted, that it shall and may be lawful for any citizen of this commonwealth, owing money to a subject of Great Britain, to pay the same, or any part thereof, from time to time, as he shall think fit, into the said loan office, taking thereout a certificate for the same in the name of the creditor, with an endorsement under the hand of the commissioner of the said office expressing the name of the payer, and shall deliver such certificate to the Governor and Council, whose receipt shall discharge him from so much of the debt. And the Governor and Council shall in like manner lay before the General Assembly, once in every year, an account of these certificates, specifying the names of the persons by and for whom they were paid, and shall see to the safe-keeping of the same, subject to the future direction of the legislature.'

The Definitive Treaty of Peace between the United States and Great Britain, ratified on the 14th of January, 1784, contained the following:

"It is agreed that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted." (Fourth Article.)

§ 156. These being the facts of the case, what were the pleadings?

This was an action on a bond. Defendants pleaded payment (which the Court said it was not necessary to consider,) and a second plea setting up the law of Virginia of October, 1777, which the defendants claimed was a bar to the plaintiff's action, they having paid three thousand one hundred and

eleven and one ninth dollars into the loan office of the State and received a certificate for the same under the hand and seal of the Governor of the State. The plea will be found below in full in a note.1

"That the plaintiff ought not to have and maintain his action, aforesaid, against them, for three thousand one hundred and eleven and one ninth dollars, equal to nine hundred and thirty-three pounds, fourteen shillings, part of the debt in the declaration mentioned, because they say, that, on the fourth day of July, in the year one thousand seven hundred and seventy-six, they, the said Defendants, became citizens of the state of Virginia, and have ever since remained citizens thereof, and resident therein; and, that the Plaintiff, on the said fourth day of July, in the year 1776, and the said Joseph Farrel were, and from the time of their nativity ever have been, and always since have been, and the plaintiff still is a British subject, owing, yielding and paying allegiance to the King of Great Britain; which said King of Great Britain, and all his subjects, as well the Plaintiff as others, were, on the said fourth day of July, in the year 1776, and so continued until the third of September, in the year 1783, enemies of, and at open war with, the state of Virginia and the United States of America; and, that being so enemies, and at open war as aforesaid, the legislature of the State of Virginia did, at their session begun and held in the city of Williamsburg, on Monday the twentieth day of October, in the year 1777, pass an act, entitled '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,' whereby it was enacted, 'that it may and shall be lawful for any citizen of this Commonwealth, owing money to a subject of Great Britain to pay the same, or any part thereof, from time to time, as he shall think fit, into the said loan office, taking thereout a certificate for the same, in the name of the creditor, with an endorsement under the hand of the commissioner of the said office, expressing the name of the payer, and shall deliver such certificate to the Governor and council whose receipt shall discharge him from so much of the said debt.' And the Defendants say, that the said Daniel L. Hylton and Co. did on the 26th day of April, in the year 1780, in the County of Henrico, and in the State of Virginia, while the said recited act continued in full force, in pursuance thereof, pay into the loan office of this Commonwealth, on account of the debt in the declaration mentioned, the sum of $3111. dollars, equal to 933.14 pounds and shillings, and did take out a certificate for the same, in the name of Farrell and Jones, in the declaration mentioned, as creditors, with an endorsement under the hand of the commissioner of the said office, expressing the name of the payer, which certificate they, the Defendants, then delivered to the Governor and Council who gave a receipt therefor, in conformity

1

The plaintiff filed a replication to this second plea of the defendants, setting up, First: The Fourth Article of the definitive Treaty of Peace of 1783; and Second: The Constitution of the United States in Article Sixth, declaring that treaties are the supreme law of the land.

To this replication the defendants rejoined, and in their rejoinder claimed that the Fourth Article of the Treaty of Peace could not avail the plaintiff, because Great Britain had broken the treaty in several particulars, and therefore the Fourth Article was not binding on Americans.2 To this rejoinder, the plaintiff demurred.

§ 157. Under these pleadings it is seen that the act of Virginia, which was claimed to be a confiscation act, was set up by the defendants as the ground for their release from liability to the plaintiff. The second plea concludes: "Whereby the defendants, by virtue of the said Act of Assembly, are discharged from so much of the debts," etc. The plaintiff on the other hand, by replication set up the definitive Treaty of Peace, which declared that "No lawful impediment" should be raised by debtors of either party against creditors of the other in the collection of debts. The defendants filed a rejoinder to this replication, setting up the fact that the treaty had been broken by Great Britain in several particulars, and therefore was no to the directions of the said act, in the words and figures following to-wit: "Received into the Council's office, a certificate bearing date the twenty-sixth day of April, 1780, under the hand of the Treasurer, that Daniel L. Hylton and Co. have paid to him, thirty one hundred and eleven and one ninth dollars, to be applied to the credit of their accounts with Farrell and Jones, British subjects. Given under my hand at Richmond, this 30th May, 1780.

64

"T. JEFFERSON.

Whereby the Defendants, by virtue of the said act of Assembly, are discharged from so much of the debt in the declaration mentioned, as the said receipt specifies and amounts to, and this they are ready to verify. Wherefore, they pray the judgment of the court, whether the said plaintiff ought to have or maintain his action, aforesaid, against them for the nine hundred and thirty-three pounds and fourteen shillings, part of the debt in the declaration mentioned."

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1 Id., pp. 203, 204.

2 Id., p. 206.