#### HAMILTONS versus EATON.

DECLARATION.

U. S. Southern Circuit, No. Carolina District.

Circuit Court,

June Term, 1792.

ARCHIBALD HAMILTON and John Hamilton, merchants, of Great-Britain, and copartners in trade, under the firm of Archibald Hamilton and company, complain of John Eaton, surviving obligor of Gabriel Long dec. citizen of and resident within the state and district of North-Carolina, and within the jurisdiction of this honourable court, in custody of the Marshall of the said district, &c. of a plea that he render to them, eight hundred pounds, proclamation money, of the value of 2,000 dollars, money of the United States, which to them he owes, and from them unjustly detains: for that, whereas the said defendant, on the eleventh day of August, in the year 1777, at the county of Halifax aforesaid, in the province and district aforesaid, one of the United States of America, in the southern circuit, and now within the jurisdiction of this honourable court, made his certain writing obligatory, sealed with his seal and to the court shewn here thereon, and the date whereof is on the same day and year aforesaid, whereby the said defendant did bind and oblige himself to pay to them, the said Archibald and John, the aforesaid sum of 800 pounds of the value aforesaid, whenever afterwards he should be thereto required.

Nevertheless the said defendant did not, nor hath not paid to them, the said Archibald and John, the aforesaid sum of 800 hundred pounds of the value aforesaid, altho’ often required, and particularly on the tenth day of May, in the year 1789, at the county aforesaid, within the state and district aforesaid, and within the jurisdiction of this honourable court, but the same to them to pay, has hitherto altogether refused and still does refuse to pay, and detain the same to the damage of the said plaintiffs five hundred dollars, and therefore they bring suit, &c.

W. R. DAVIE, pro Quær.

John Doe and Richard Roe, pledges.

*2I. AND the said John Eaton, by John Haywood, his attorney, comes and defends the force and injury, when &c. and craves oyer of the writing obligatory aforesaid: and it is read to him these words, to wit.

KNOW all men by these presents, that we John Eaton and Gabriel Long of the county of Halifax and province of North-Carolina, are held and firmly bound unto Archibald Hamilton and Co. the county and province aforesaid, in the just and full sum of eight hundred pounds, proclamation money, to be paid unto the said Archibald Hamilton and Co. their certain attorney, their heirs, executor, administrators, or assigns: To which payment, well and truly to made, we bind ourselves, our heirs, executors, and adminisrator firmly by these presents, sealed with our seals, and dated this eleven day of August, Anno Dom. 1777.

And he likewise craves oyer of the condition of the said writing obligatory, and it is read to him in these words, to wit.

The condition of the above obligation is such, that is the above bound John Eaton and Gabriel Long do and shall well and true pay, or cause to be paid, unto the said Archibald Hamilton and Co. their certain Attorney, their executors, administrators, or assign the just sum of four hundred pounds like money, on or before, the first day of August next, with lawful interest from the date, then the above obligation to be void; or else to remain in full force and virtue.

Which being read and heard, the said John Eaton faith, that the said plaintiffs ought not to have or maintain their said action against him, because he faith, that on the 4th day of July in the year of our Lord, 1776, and from thence continually afterward unto the thirtieth day of November, in the year of our Lord 178 there was an open war between the king of Great-Britain and the United States of America, and that on the said fourth day of July in the said year of our Lord 1776, the aforesaid plaintiffs, and each of them were residents and inhabitants of this state, and continued to reside and inhabit within the same, until the twentieth day of October, in the year of our lord 1777; on which said twentieth day of October, the said plaintiffs withdrew themselves, and each of their withdrew himself, from this state, and from the United States of America, to wit, at the county of Halifax in this state; and continually afterwards, from the day last aforesaid, until the termination of said war, the said plaintiffs and each of them, resided beyond the limits of the said United States, under the sovereignty and jurisdiction of the said king, owning and acknowledging their allegiance to him, and during all the time last aforesaid the said plaintiff or either of them, did not return into this state to be admitted as citizen or citizens thereof; and that during the time of the said war, between the said king of Great-Britain and the said United States of America, by a certain act of the General Assembly, held *3Halifax, on the eighteenth day of October, in the year of our Lord 1779, entitled, “ an act to carry into effect an act passed at Newbern in the year 1777, entitled, an act for confiscating the property of all such persons as are inimical to this or the United States, and of such persons as shall not within a certain time therein mentioned, appear and submit to the state, whether they shall be received as citizens thereof, and of such persons as shall to appear, and shall not be admitted as citizens, and for other purposes therein mentioned," reciting that whereas is enacted by the aforesaid act passed at Newbern, in November one thousand seven hundred and seventy seven, that all the lands, tenements and hereditaments, and moveable property within this state, and all and every right, title and interest therein of which any person was seized or possessed, or to which any person had title, on the fourth day of July, in the year 1776, who, on the said day was absent from this state, and every part of the United States, or who as withdrawn himself from this or any of the United States, after the day aforesaid, and still resides beyond the limits of the United States, shall and are hereby declared to be confiscated to the use of this state, unless such person, shall at the then next General Assembly, which should be held after the first day of November, in the year 1777 appear and be admitted to the privilege of a citizen of this state, and restored to the possession or property which to him once belonged within the same; and whereas divers persons who some within the descriptions of the aforesaid recited act, had failed or neglected to appear before the said General Assembly as last mentioned, or at any General Assembly since, and submit to the state whether they should be admitted as citizens thereof, and restored to the possessions which to then once belonged, whereby such certain persons therein after mentioned had clearly incurred and become liable to the penalties of the aforesaid first recited act: in consideration thereof, by the authority of the same General Assembly, it was therein enacted, that all the lands, tenements, hereditaments and personal property within this state, of divers persons therein particularly named, and amongst others of John Hamilton and Archibald Hamilton, by the names of John Hamilton and Archibald Hamilton, state of Halifax, and of all others coming within the meaning of the said confiscation act, and of that act passed at Halifax, and all and every the right, title and interest, which all, or each of the persons aforesaid may have had therein, on the said fourth day of July in the year 1776, or at any time since should be, and were thereby, declared to be confiscated fully and absolutely forfeited to this state, and should be vested in the hands of commissioners as in the said act directed to be appointed for the purposes therein after mentioned. And by the authority of the same General Assembly, it was further wherein enacted that commissioners should be appointed, by the county court in each county, who in their respective counties should have all power and authority, to take possession of all lands, tenements, hereditaments, monies, debts, whether due by judgment, bond, bill, note, *4account, or otherwise, and all other personal property of the person aforesaid, in the name and for the use for the state, which thereby were declared to be forfeited to the said state, and give receipts and discharges which should forever indemnify all persons delivering or paying the same, their heirs, executors or administrators, against any future claim, for the articles or money, mentioned in such receipt or discharges. And by the authority of the same General Assembly it was therein further enacted, that the said commissioners might order the several constables to summon any of the inhabitants in their respective counties to appear before them, at convenient times and places, to render on oath an account of such forfeited property, and that they, or a majority of them being present, should administered on oath or affirmation to the inhabitants so appearing, whereby each inhabitant, rendering an account, should swear, or affirm, that the account by him rendered, contained a true and full account to the best of his knowledge, of all the lands, tenements, hereditaments debts, monies, and all personal property in the county or elsewhere which belonged on the fourth day of July, in the year of our Lord 1776, to any of the (therein) before mentioned person or persons, on any time since, who came within, or are included by the descriptions, or either of them, recited in the said act or the confiscation acts passed at Newbern, in the year 1777, and that he had not disposed, or parted with the same, or any part thereof, to elude or evade the intent and meaning of the confiscation act, or of that act passed at Halifax, and further that the said account contained, to the best of his recollection, the full amount of all and every sum, and sums of money which then were by him due, and owing to any such person or persons, including interest, if any due, by bond, note or account, or by virtue of any trust whatever; and if any person summoned as aforesaid, should fail to appear, or appearing, should fail to render an account as above mentioned, on oath or affirmation, as the case might be, in such case the said commissioners or a majority of them should have power to commit such person, if present, to close gaol until he or she should comply with the law; and if absent, should issue a warrant, directed to any Sheriff or Constable, to apprehend and bring such absent person before them, at any place, on a future day, when, if he or she should refuse to render an account on oath or affirmation as aforesaid, he or she should also be committed to close gaol, until he or she should render an account on oath as aforesaid and the said commissioners were thereby invested with power to administer the oath, issue warrants and make commitments in manner aforesaid. And the said commissioners were thereby invested with full power and authority to demand, make distress for, and receive all sums of money due and owing by the inhabitants of their respective counties, and declared forfeited by the said act, and were thereby made liable to account for the same to the public treasurers of this state. And the said John Eaton further faith, that on the day of the making of the aforesaid act, passed at Halifax, and also from the *5day of the date of the said writing obligatory, and from thence continually afterwards, until this present day, he, the said John, hath been an inhabitant of the said state, being and residing within the same, to wit, at the county of Halifax aforesaid, and that after the making of the aforesaid act passed at Halifax, the court of pleas and quarter sessions for the said county, held for the said county, at the town of Halifax, in the said county, on the — day of - in the year of our lord 1780, duly appointed Samuel Weldon, William Wooting and William Montfort, to be commissioners for the purposes aforesaid, in the said act expressed, for the said county of Halifax, who then and there accepted the appointment, and having duly qualified themselves for the same, by performing and complying with the several requisites by law prescribed in such case, then and there took upon themselves the exercise thereof: and that the said commissioners, after their appointment and qualification as aforesaid, caused the said John Eaton to be summoned according to the directions of the aforesaid act, to appear before them on the fifteenth day of April, in the year of our lord 1780, in the county aforesaid, to give in on oath, an account, among other things, of all and every the sum and sums of money as aforesaid, by him due and owing to the persons-aforesaid; whereupon the said John Eaton, then and there appeared before the said commissioners and rendered to them, on oath, an account of the sum of £. 460, being the principal and interest then due, in the said writing obligatory above specified, and that afterwards, to wit, on the same day and year last aforesaid, in the county aforesaid, that he, the said John Eaton, by the commissioners aforesaid was required to pay them the said sum of four hundred and sixty pounds, according to the directions and intent of the act aforesaid; and that he the said John Eaton thereupon, then and there, paid to the said commissioners the aforesaid sum of £. 460, being the whole sum mentioned in the condition aforesaid, and all the interest therefore then due: and that thereupon the said commissioners, then and there, made and delivered to him the said John Eaton, a receipt and discharge of and for the sum aforesaid, by him said as aforesaid, according to directions of the act aforesaid: and this he is ready to verify. Wherefore he prays judgment, whether the said plaintiffs ought to have or maintain their said action against him; together with this, that he is ready to verify that the said John Hamilton and Archibald Hamilton above named in the said declaration, and the said John Hamilton and Archibald Hamilton, in the aforesaid act of the said General Assembly likewise named, are the same and not different persons.

II. AND the said John Eaton further faith, that the said John Hamilton and Archibald Hamilton ought not to have and maintain their said action agaim him, because he faith that on the fourth day of July, in the year of our lord 1776, and continually afterwards, until the third day of September in the year of our lord 1782, a war *6was prosecuted and carried on against the United States of America by the king of Great Britain : And that in the time of the continuance thereof, by a certain act of the General Assembly of the state of North-Carolina, held at Newbern, on the fifteenth day of November, in the year of our lord 1777, it was amongst other things enacted by the authority of the same General Assembly, that all the lands, tenements, hereditaments and moveable property, within this said state, and all and every right, title, and interest therein, of which any person was seized, or to which any person had title on the fourth day of July, for the year of our lord 1776, who, on the aforesaid day, was absent from the said state and every part of the United States, and who then was still absent from the same, and then at any time during the war had attached himself to, or aided or abetted, the enemies of the said United States ; or who then had withdrawn himself from the said state, or any of the United States, and who then resided beyond the limits of the said United States, should be and are thereby declared to be confiscated to the use of the said state, unless such persons should at the next General Assembly, which should be held after the first day of October in the year 1778, appear and be by the said Assembly admitted to the privilege of a citizen of this said state, and restored to the possession and property which to him once belonged within the same. And the said John Eaton further faith, that afterwards, by one other aft of the General Assembly of this state aforesaid, held at Halifax, on the eighteenth day of October, in the year of our lord 1779, reciting the act last aforesaid, and that whereas divers persons, who come within the description of the aforesaid recited act, had failed or neglected to appear before the said General Assembly as therein mentioned, or at any General Assembly (then) since and submit to the state whether they should be admitted as citizens, thereof, and restored to the possessions which to them once belonged, whereby such certain persons in the said last mentioned act, therein after mentioned had clearly incurred and became liable to the penalties of the aforesaid first recited act, in consideration thereof, it was enacted by the authority of the same General Assembly, held at Halifax as aforesaid, amongst other things, that all the lands, tenements, hereditaments and personal property within the said state, of divers persons in the said last mentioned act named, and amongst others, of John Hamilton and Archibald Hamilton, then late of Halifax, and of all others who then came within the meaning of the aforesaid and first above mentioned, and of the said last mentioned act, and all and every the right, title, and interest, which all or each of the persons aforesaid may have had therein, on the said fourth day of July, 1776, or at any time (then) since, should be and thereby are declared to be confiscated, fully and absolutely forfeited to the said state, and should be vested in the hands of commissioners as therein directed to be appointed for the purpose therein after mentioned : and it was thereby further enacted, that commissioners should be ap*7pointed by the county court in each county, who should have full power and authority to take possession of all lands, tenements, hereditaments, monies, debts, whether due by judgment, bond, bill, note, account or otherwise, and other personal property of the persons aforesaid, in the name and for the use of the said date, which by the said act were declared to be forfeited to the said state and should give receipts and discharges which should forever indemnify and acquit the persons delivering or paying the same, their heirs, executors, and administrators, against any further claim for the articles or money mentioned in such receipts or discharges. And the said John Eaton further faith, that in the time when the said war was yet continuing, and upon the said fourth day of July, in the year of our Lord 1776, and continually afterwards, until the time of their departure front this state, herein after mentioned, the said plaintiffs, in the said declaration named, were residents, and each of them, was a resident, inhabiting and residing within the limits of the said state of North-Carolina, to wit, in the county of Halifax, and that act they the said plaintiffs whilst the said war was yet continuing, and after the said fourth day of July, in the year of our lord 1776, and before the making of the said acts herein before mentioned, or either of them, that is to say, on the first day of September, in the year of our lord 1777, at the county of Halifax aforesaid, did withdraw themselves, and each of them did withdraw himself, from this said state, and that they the said plaintiffs, and each of them, at the time of the making of the said first mentioned act, and also at the time of the said last mentioned act, and each of them, resided beyond the limits of the United States of America, and that they the said plaintiffs or either of them, at the time of the making of the aforesaid last mentioned act, had not, nor had either of them, appeared before any General Assembly of the said state, to be admitted a citizen or citizens thereof and to be restored to the possession and property which to them once belonged within the same ; nor had the said plaintiffs, or either of them, after their departure from this state as aforesaid, ever at any time thereafter, been admitted as citizens thereof, and restored to the possession and property which to them once belonged as aforesaid. And the said John Eaton faith, that at the time of passing the acts herein before mentioned, and each of them, and long before that time, that is to say, from the day of the date of the writing obligatory aforesaid, until the present day, that he the said John Eaton hath been continually an inhabitant and resident of this dwelling and residing within the same, to wit, at the county of Halifax aforesaid. And to the said John Eaton faith, that by reason of the premises, and by force of the acts of the General Assembly in such case made and provided, the debt aforesaid in the declaration aforesaid, and in the writing obligatory aforesaid above specified, hath been and is now confiscated and and absolutely forfeited to and vested in the said state : and this he is ready to verify. Wherefore he prays judgment whether the *8said John Hamilton and Archibald Hamilton ought to have or maintain their said action against him : together with this, that he the said John Eaton is ready to verify that the said John Hamilton and Archibald, Hamilton in in the said declaration, and the said John Hamilton and Archibald Hamilton likewise above named herein, and also in the act aforesaid, passed at Halifax, are the same and not different persons.

III. AND the said John Eaton, for further plea in bar, faith that by the aforesaid act, passed at Halifax, reciting that whereas many persons, who before that the refused to take the oath of allegiance to the state and were compelled to leave the same, in consequence thereof, by virtue of an act of Assembly, passed at Newbern in April, in the year of our lord 1777, entitled, an act for declaring what crimes and practices against the state shall be treason, and what shall be misprision of treason, and providing punishments adequate to crimes of both classes, and for preventing the dangers which may arise from persons disaffected to the state, and of another act passed at Newbern, in November, in the year 1777, to amend the aforesaid act, had failed or neglected to fell or convey their real estates, agreeable to the said acts, and to appoint lawful agents and attornies to receive and give discharges for debts due and owing by the inhabitants of the said state, to persons who so departed therefrom, whereby many lands of the persons last described, were them yet undisposed of, and still continued to be and remain to the use of the same, and many well meaning people were defeated of an opportunity to discharge such debts due as aforesaid: in consideration thereof, it was enacted, that all such lands of the persons described in these said last recited acts, which had not then been sold and disposed of bona fide, for a valuable consideration, actually paid, and all debts, money and personal property belonging to the same, then not yet collected and appropriated, according to the directions of the said acts therein recited, should be, and thereby were declared to be, forfeited to the aforesaid state, and the commissioners aforesaid, were thereby directed to proceed on such real and personal estate, in like manner as on the estate of the persons therein first mentioned, any thing contained in the said recited acts, to the contrary notwithstanding. And the said John Eaton, further faith, that the said plaintiffs, and each of them, before the making of the said acts, passed at Halifax, had refused, and each of them had refused, to take the oath of allegiance in the said first recited acts prescribed, that is to say, on the - day of -, in the year of our lord, 1777, in the state aforesaid, at the county of Halifax: and that therefore, they the said plaintiffs were compelled, and each of them was compelled, to leave the said state, by virtue of, and in pursuance of the first of the said recited acts; that is to say, at the county of Halifax aforesaid; and that they the said plaintiffs at the time of the making of the said act, passed at Halifax, had not appointed any lawful a*9gents or attornies, to receive and give discharges for the debts due and owing to them, from the inhabitants of the state aforesaid. And the said John Eaton, further faith, that he the said John Eaton, at the time of the making of the aforesaid act, passed at Halifax, and continually before that time, from the day of the date of the writing obligatory aforesaid, had been an inhabitant of the aforesaid state, living and residing within the same, to wit at the county of Halifax aforesaid. And so the said John Eaton faith, that by means of the premises, and by force of the acts of the General Assembly of the state aforesaid, in such cases made and provided, that the debt aforesaid, in the declaration aforesaid, by the said, John and Archibald Hamilton demanded of him was, and is confiscated and fully and absolutely forfeited to the aforesaid state of North-Carolina, and this he is ready to verify. Wherefore he prays judgment whether the said John Hamilton and Archibald Hamilton, ought to have or maintain their said action against him.

IV. AND the said John Eaton, for further plea in bar, faith, that by the aforesaid act, passed at Halifax, reciting that whereas many persons who, before that time, refused to take the oath of allegiance, to this state, and were compelled to leave the same, in consequence thereof, by virtue of an act of Assembly passed at Newbern, in April, in the year of our lord, 1777, entitled, An act for declaring what crimes and practices against the state, shall be treason, and what misprision of treason, and providing punishment adequate to crimes of both classes, and for preventing the dangers which may arise from persons disaffected to the state; and of another act, passed at Newbern, in November, in the year 1777, to amend the aforesaid act, had failed, or neglected, to fell or convey their real estates, agreeable to the said acts, and to appoint lawful agents, and attornies to receive and give discharges, for debts due and owing by the inhabitants of the said state, to persons who so departed therefrom, whereby many lands of the persons last described were then yet undisposed of, and still continued to be and remain, to the use of the same, and many well meaning people were defeated of an opportunity to discharge such debts due as aforesaid; in consideration thereof, it was enacted that all such lands of the persons described in these said last mentioned acts which had not then been sold and disposed of bona fide for a valuable consideration actually paid, and act debts, money and personal property belonging to the same, then not yet collected and appropriated, according to the directions of the said acts therein recited, should be and thereby were declared to be forfeited to the aforesaid state, and the commissioners aforesaid, were thereby directed to proceed on such real and personal estate, in like manner, as on the state of the persons therein first mentioned; any thing contained in the said recited acts to the contrary notwithstanding. And the said John Eaton further faith that the said plaintiffs, and each of *10them, before the making of the said acts, passed at Halifax, had refused and each of them had refused to take the oath of allegiance, the said first recited acts prescribed, that is to say, on the - day of - in the year of our lord 1777, in the state aforesaid, at the could of Halifax, and that therefore they the said plaintiffs were compelled, and each of them was compelled to leave the said state, virtue of and in pursuance of the first of the said recited acts, that to say, at the county of Halifax aforesaid, and that they the said plaintiffs, at the time of the making of the said act passed at Halifax, had not appointed any lawful agents or attornies, to receive and give discharges, for the debts due and owing to them from the inhabitants of the state aforesaid: and the said John Eaton, further faith, that he the said John Eaton, at the time of the making of the aforesaid act, passed at Halifax, and continually before that time, from the day of the date of the writing obligatory aforesaid, had been an inhabitant of the aforesaid state, living and residing within the same, to wit, at the county of Halifax aforesaid. And so the said John Eaton faith, that by means of the premises and by force of the acts of the General Assembly of the state aforesaid, in such cases made and provided, that the debt aforesaid, in the declaration aforesaid, by the said John Hamilton and Archibald Hamilton demanded of him, was, and is confiscated, and fully and absolutely forfeited, to the aforesaid state of North-Carolina: and this he is ready to verify. Wherefore he prays judgment, whether the said John Hamilton and Archibald Hamilton ought to have or maintain their said action against him.

JOHN HAYWOOD, pro Def.

REPLICATIONS.

I. AND the said Archibald and John Hamilton, as to the plea of the said John Eaton by him first above pleaded in bar ; say that they, by reason of any thing in that plea alledged, ought not to be barred from having or maintaining their said action thereof against him. Because, protesting that, that plea and the matters therein contained are not sufficient in law to bar the said Archibald and John Hamilton from having or maintaining their said action against the said John Eaton, for replication they, the said Archibald and John Hamilton, say that true it is that, on the said fourth day of July, in the said year 1776, and from thence continually afterwards, until the said thirtieth day of November, in the said year 1782, there was an open war between the said king of Great-Britain and the United States of America aforesaid, and that on the said fourth day of July, in the said year 1776, the said Archibald and John Hamilton were residents and inhabitants, and each of them was a resident and inhabitant of this state, and continued to reside and inhabit within the same until the said twentieth day of October, in the year 1777 aforesaid. Yet the said Archibald and John Hamilton further say that by an act made and provided in a General Assembly of the state of North-Caro*11lina, begun and held at Newbern aforesaid, in the said state of North-Carolina; and now in the district of North-Carolina; and within the jurisdiction of this court, after the said fourth day of July, in the year 1776 aforesaid, and before the time of making the said writing obligatory, (to wit) on the eighth day of April in the year 1777 aforesaid, entitled, “an all declaring what crimes and practices "against the state shall be treason and what shall be misprision of treason "and providing punishments adequate to crimes of both classes, and for "preventing the dangers which may arise from persons disaffected to "the state," (among other things) it is enacted, by the authority of the same General Assembly, that all the then late officers of the king of Great-Britain, and all persons (quakers excepted) being subjects of the said state, and then living therein, or who should thereafter come to live therein, who had traded immediately to Great-Britain or Ireland, within ten years then last part, in their own right, or acted as storekeepers, factors or agents here, or in any of the United States of America, for the merchants residing in Great Britain or Ireland, should take a certain oath of abjuration and allegiance therein mentioned, or depart out of the said state: and it is by the same act provided that all and every such person, and persons, should have liberty, and that they might also nominate and appoint an attorney or attornies, to fell and dispose of his, or their estates for his or their own use and benefit, as by the fame act (among other things) may more fully appear. And the said Archibald and John Hamilton further say that they, on the said eighth day of April, in the year 1777 aforesaid, and long before then, were, and from the time of their nativities respectively continually hitherto have been and first are, subjects of, and owing allegiance to, the said king of Great-Britain; and that they; the said Archibald and John Hamilton on the same day and year last aforesaid; and for a long time, (to wit) the space of ten years before the making of the same, and until the said twentieth day of October, in the said year 1777, were merchants and copartners, living in the then state, and formerly province of North-Carolina aforesaid, and had within, and during the said space of ten years last part, before the making of the same act, traded immediately to Great-Britain, (to wit,) at — in their own right, (that is to say,) at the state of North-Carolina aforesaid, and now in the district of North-Carolina aforesaid, and within the jurisdiction of this court. And after the said eighth day of April, in the year 1777 aforesaid, and before the said twentieth day of October in the said year 1777, (to wit,) on the same — day of - in the said year 1777, at North-Carolina aforesaid, no in the said district of North-Carolina and within the jurisdiction of this court the said John Eaton made his said writing obligatory in the said declaration mentioned, and by the same writing obligatory, he the said John Eaton, then and there bona fide contracted the said debt in the said declaration mentioned. And the said Archibald and John Hamilton further say that, after the said eighth day of April, in the *12said year 1777, and after the making of the said writing obligatory, (to wit) on the said twentieth day of October, in the year 1777 aforesaid, they the said Archibald and John Hamilton, then being merchants and copartners as aforesaid, and having lived, resided and inhabited, and then living, residing and inhabiting in the state of North-Carolina aforesaid, in the manner herein before mentioned, and having traded immediately to Great-Britain aforesaid, within and during ten years last past before the making of the same act as aforesaid, and then being the subjects of, and owing allegiance to the said king of Great-Britain as aforesaid. And the said John Eaton having contracted the said debt bona fide with the said Archibald and John Hamilton aforesaid; and the said Archibald and John Hamilton, being creditors in that respect as aforesaid, did withdraw themselves from the said state, and from the United States of America aforesaid, and they, and each of them did remove and depart out of the said state, (to wit,) to Europe, in conformity to the tenor, true intent and meaning of, and in obedience to, the same last mentioned act of the General Assembly; and continually afterwards from the said twentieth day of October, in the said year 1777, until the termination of the said war, the said Archibald and John Hamilton resided beyond the limits of the said United States, under the sovereignty and jurisdiction of the said King, owing and acknowledging their allegiance to him; and during all the time last aforesaid, they the said Archibald and John Hamilton did not, nor did either of them, return unto the said state to be admitted as citizens or a citizen thereof. And the said Archibald and John Hamilton further say, that afterwards such act of the General Assembly held at Halifax, on the eighteenth day of October, in the year 1779 aforesaid, entitled, an act to carry into effect an act passed at Newbern in the year 1777, entitled, an act for confiscating the property of all such persons as are inimical to this or the United States, and of such persons as shall not within a certain time therein mentioned appear and submit to the state whether they shall be received as citizens thereof, and of such persons as shall so appear and shall not be admitted as citizens, and for other purposes therein mentioned, and for other purposes," was made as in the same plea alledged, and that on the day of the making of the aforesaid act, at Halifax, and also from the day of the date of the said writing obligatory and from thence continually afterwards, until the day of pleading the same plea in bar, the said John Eaton hath been an inhabitant of the said state, being and residing within the same, (to wit,) at the county of Halifax aforesaid, and that after the making of the said act, passed at Halifax, the court of pleas and quarter-sessions for the said county, held for the said county, at the town of Halifax in the said county on the — day of —— in the said year 1780, duly appointed the said Samuel Weldon, William Wooting and William Montfort, to be commissioners for the purpose aforesaid, in the said act expressed, for the said county of Halifax, who then and there accepted . *13the said appointment, and having duly qualified themselves for the same, by performing and complying with the several requisites by law prescribed in such case, then and there took upon themselves the exercise thereof; and that the said commissioners, after their said appointments and qualifications aforesaid, caused the said John Eaton to be summoned, according to the directions of the aforesaid act, in the same plea in bar mentioned, to appear before them, on the said fifteenth day of April, in the said year 1780, in the county aforesaid, to give in on oath an account (amongst other things) of all and every the sum and sums of money aforesaid, by him due and owing to the persons aforesaid: whereupon the said John Eaton, then and there appeared before the said commissioners, and rendered to them on oath. an account of the sum of four hundred and sixty pounds, being the principal and interest then due on the said writing obligatory above specified; and that afterwards, (to wit,) on the same day and year aforesaid, in the county aforesaid, he, the said John Eaton, by be commissioners aforesaid was required to pay them the said sum of of £. 460, according to the directions and intent of the act aforesaid in the same plea in bar mentioned; and that he the said John Eaton thereupon then and there paid to the said commissioners the aforesaid sum of four hundred and sixty pounds, being the whole sum mentioned in the condition aforesaid, and all the interest thereupon then due : and that thereupon the said commissioners, then and there, made and delivered to him the said John Eaton a receipt and discharge of and for the sum aforesaid by him said as aforesaid, according to the directions of the act aforesaid in the same plea in bar mentioned. Yet the said Archibald and John Hamilton further say, that by the definitive treaty of peace between the United States of America aforesaid and his Britannic Majesty aforesaid, made and done at Paris, after the said fourth day of July, in the said year 1776, and after the time of making of the said writing obligatory, and after the departure of the said Archibald and John Hamilton, in conformity and obedience to the act of the General Assembly herein before pleaded, and after the passing the said act of the said General Assembly in the same plea in bar pleaded, (to wit,) on the third day of September, in the year of our lord 1783, it is (among other things) stipulated and agreed that creditors on either sides should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts theretofore contracted, as by the same treaty, (among other things) may more fully appear. And the said Archibald and John Hamilton further in fact say, that they at the time of the making of the said definitive treasury, and for a long time before then, (to wit,) on the said — day of - in the said year 1777, were, and from that same day continually hitherto have been, and still are, creditors of the said John Eaton, by virtue of the writing obligatory in the said declaration mentioned, in manner and form as therein is declared, and on the side of his said Britannic Majesty, within the true intent and mea*14ning of the said definitive treaty, (that is to say,) at the state of North-Carolina aforesaid, now in the district of North-Carolina, and within the jurisdiction of this court), and that they, the said Archibald and John Hamilton, at the time of the making of the said definitive treaty, at and before the passing of the said act of the General Assembly in the same plea in bar pleaded, and at and before the departing of the said Archibald and John Hamilton, in conformity to the act of the General Assembly herein before pleaded, by way of reply, and at and before the time of the making of the said writing obligatory in the said declaration mentioned, and at and before the time of the making of the said act herein before pleaded, by way of reply, and on the said fourth day of July in the said year 1776, and long before, then and from the times of their nativities respectively, were, and from thence continually hitherto have been, and still are, subjects of his said Britannic majesty, owing and acknowledging their allegiance and obedience to him. And that the said debt, in the said declaration mentioned, was contracted, and the said. writing obligatory therein also mentioned made and executed by the said John Eaton, bona fide, before the time of the making of the said definitive treaty, (to wit,) on the said — day of - in the said year 1777, and the same debt still remains wholly due and owing from the said John Eaton to the said Archibald and John Hamilton, and hath not, nor hath any part thereof, been paid or satisfied to them, or either of them, (that is to say,) at the state of North-Carolina aforesaid, and in the said district of North-Carolina, and within the jurisdiction of this court. And the said Archibald and John Hamilton further say that by the constitution ordained and established by the people of the United States for the United States of America, done in convention after the said third day of September, in the said year 1783, (to wit,) on the seventeenth day of September in the year of our lord 1787, it is (among other things) expressly declared that all treaties which were then made, or which should be made, under the authority of the United States, should be the supreme law of the land, any thing in the said constitution or laws of any state to the contrary notwithstanding, as by the same constitution more fully, appears. And the said Archibald and John Hamilton further say that, by an act made and provided in a General Assembly of the state of North-Carolina begun and held at Tarborough, now. in the district of North-Carolina aforesaid, and within the jurisdiction of this court, after the said third day of September, in the said year one thousand seven hundred and eighty three, and after the said seventeenth day of September in the said year 1787, (to wit,) on the eighteenth day of November, in the year of our lord 1787, and in the twelfth year of the independence of the said state, entitled, an act declaring the treaty of peace between the United States of America and the king of Great-Britain to be part of the law of the land, it is enacted by the authority of the same General Assembly, that the articles of the definitive treaty between the *15United States of America and the king of Great-Britain, were there by declared to be part of the law of the land. And it was and thereby further enacted by the same authority, that the courts of of law and equity were thereby declared in all cases and questions cognizable by them, respecting the said treaty, to judge accordingly; as by the same act more fully appears. Wherefore, for that the said Archibald and John Hamilton were merchants, and were and are subjects of the said king of Great-Britain, and creditors on his side as aforesaid; and the said debt was bona fide contracted before the making of the said definitive treaty, and the ordaining and establishing of the said constitution, and the passing of the said act declaring the said definitive treaty to be part of the law of the land: they, the said Archibald and John Hamilton, pray judgment and their said debt, together with their damages, occasioned by the definitive of the same, to be adjudged to them, &c.

II. AND the said Archibald and John Hamilton, as to the said plea of the said John Eaton, by him secondly above pleaded in bar, say that they, by reason of any thing in that same plea alledged, ought not to be barred from having or maintaining their said action thereof against him; because, protecting that, that same plea and the matters therein contained are not sufficient in law to bar the said Archibald and John Hamilton from having or maintaining their said action against the said John Eaton; for replication they, the said Archibald and John Hamilton say that true it is that on the said fourth day of July, in the year 1776, and continually afterwards, until the said third day of September, in the said year 1782, a war was prosecuted and carried on against the United States of America by the king of Great-Britain: and that, in the time of the continuance thereof, such act was made and passed by and at a General Assembly of the state of North-Carolina, held at Newbern aforesaid, on the said fifteenth day of November in the year 1777 aforesaid, as in the same plea in bar in that behalf is alledged; and that afterwards the said other act was made and passed by and at the General Assembly of the said state of North-Carolina, held at Halifax aforesaid, on the said eighteenth day of October in the year 1779 aforesaid, as in the same plea in bar in that behalf is also alledged; and that in the time when the said war was continuing, land upon the said fourth day of July, in the said year 1776, and continually afterwards, until the time of the departure of the said Archibald and John Hamilton from the said state herein after mentioned, they, the said Archibald and John Hamilton were residents, and each of them was a resident, inhabiting and residing within the limits of the said state, (to wit,) in the county of Halifax, and that the said John Eaton, at the times of the passing the acts in the same plea in bar mentioned, and each of them, and long before that time, (to wit,) from the day of the date of the said writing obligatory, until the day of pleading the same plea in bar, hath been conti*16nually an inhabitant and resident of this state, dwelling and residing within the same, (to wit,) at the county of Halifax aforesaid. Yet the said Archibald and John Hamilton further say, that by an act made and provided in a General Assembly of the state of North-Carolina, begun and held at Newbern aforesaid, in the said state of North-Carolina, and now in the district of North-Carolina, and within the jurisdiction of this court, whilst the war was continuing, and after the said fourth day of July, in the year 1776 aforesaid, and before the said eighteenth day of October, in the said year 1779 and before the said fifteenth day of November, in the said year 1777 and before the time of the making of the said writing obligatory (to wit,) on the eighth day of April, in the said year 1777, entitled, an act declaring what crimes and practices against the state shall be treason and what shall be misprision of treason, and providing punishments adequate to crimes of both classes, and for preventing the dangers which may arise from persons disaffected to the state, (among other things) it is enacted by the authority of the same General Assembly, that all the then late officers of the king of Great-Britain, and all persons (quakers excepted) being subjects of the said state then living therein, or who should thereafter come to live therein, who had traded immediately to Great-Britain or Ireland, within ten years then last past, in their own right, or after as factors, storekeepers or agents here, or in any of the United States of America, for merchants residing in Great-Britain or Ireland, should take a certain oath of abjuration and allegiance therein mentioned, or depart out of the said state. And it is by the same act provided, that all and every such person and persons should have liberty, and that they might also nominate and appoint an attorney or attornies, to sell and dispose of his or their estate for his or their use and benefit, as by the same act (among other things) may more fully appear. And the said Archibald and John Hamilton further say, that they, on the said eighth day of April, in the year one thousand seven hundred and seventy seven aforesaid, and long before then, were, and from the time of their nativities respectively, continually hitherto have been, and still are, subjects of, and owing allegiance to, the said king of Great-Britain. And that they, on the same day and year last aforesaid, and for a long time (to wit) for the space of ten years before the making of the same act last mentioned, and until the said first day of September, in the said year one thousand seven hundred and seventy seven, were merchants and copartners, living in the then state, and formerly province of North-Carolina aforesaid, and had within and during the said space of ten years last past, before the making of the same last mentioned act, traded immediately to Great-Britain, in their own right (that is to say) at the state of North-Carolina aforesaid, and now in the district of North-Carolina aforesaid, and within the jurisdiction of this court: and after the said eighth day of April, in the said year 1777, and before the said first day of September in the same year, *17 (to wit,) on the said — day of - in the same year, at North-Carolina aforesaid, and now in the district of North-Carolina aforesaid, and within the jurisdiction of this court, he the said John Eaton, made his said writing obligatory, sealed with the seal of the said John Eaton, and the date whereof is the same day and year; and by the same writing, he the said John Eaton then and there bona fide contracted the said debt, in the said declaration mentioned. And the said Archibald and John Hamilton further say, that whilst the said war was continuing, and after the said fourth day of July, in the said year 1776, and after the said eighth day of April, in the said year 1777, and after the making of the said writing obligatory, and before the said fifteenth day of October, in the said year 1779, and before the said fifteenth day of November, in the said year 1777, (to wit,) on the said first day of September, in the said year 1777, they the said Archibald and John Hamilton, then being merchants and copartners as aforesaid, and having lived, resided and inhabited, and then living, residing and inhabiting in North-Carolina aforesaid, in the manner herein before alledged, and having traded immediately to Great-Britain aforesaid, within, and during ten years last past, before the making of the same last mentioned act, as herein before alledged, and then being the subjects of, and owning and acknowledging allegiance to, the said king of Great-Britain as aforesaid, and the said John Eaton saying contracted the said debt bona fide with the said Archibald and John Hamilton as aforesaid, and the said Archibald and John Hamilton being creditors in that respect as aforesaid, did withdraw themselves, and each of them did withdraw himself from the said state, and remove and depart out of the said state, (to wit,) to Europe, in conformity to the tenor, true intent and meaning of, and in obedience to, the same last mentioned act of the General Assembly; and continually afterwards, from the said first day of September, in the said year 1777, and at the time of making of the said act in the same plea secondly above pleaded in bar first mentioned, and also at the time of making of the said act in the same plea secondly above pleaded in bar last mentioned, and at the respective times of the making of each of them, they the said Archibald and John Hamilton resided beyond the limits of the United States of America, under the sovereignty and jurisdiction of the said king, owing and acknowledging their allegiance to him, and they the said Archibald and John Hamilton had not, nor had either of them, at the time of the making the said act in the same plea secondly above pleaded in bar last mentioned, appeared before any General Assembly of the said state, to be, nor had they or either of them after their departure from the said state as aforesaid ever at any time after been, admitted a citizen or citizens thereof. And they the said Archibald and John Hamilton further say, that by the definitive treaty of peace between the United States of America aforesaid and his *18Britannic Majesty aforesaid, and done at Paris, after the said fourth of July, in the said year, 1776, and after the time of the making of the said writing obligatory, and after the departure of the said Archibald and John Hamilton, in conformity and obedience to the act of the General Assembly herein before pleaded, and after the passing of the act of the General Assembly in the same plea in bar secondly above pleaded first mentioned, and after the passing of the act of the General Assembly in the same plea in bar secondly above pleaded last mentioned, (to wit,) on the third of September, in the the year of our lord one thousand seven hundred and eighty-three it (among the other things) stipulated and agreed, that creditors on either side should meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts therefore contracted, as by the same treaty (among other things) may more fully appear. And the said Archibald and John Hamilton further in fact say, that they, at the time of making of the said definitive treaty, and for long a long.time before, then, (to wit,) on the said - day of -, in the said year 1777, were, and from that same day, continually hithereto have been, and fill are, creditors of the said John Eaton, by virtue of the said writing obligatory, in the said declaration mentioned, in manner and form, as therein is declared; and on the side of his said Britannic Majesty, within the true intent meaning of the said definitive treaty, (that is to say,) at State of North-Carolina aforesaid, and now in the said district of f North-Carolina, and within the jurisdiction of this court: and that they the said Archibald and John Hamilton, at the time of the making of the said definitive treaty, and at and before the passing of the said act of the General Assembly, in the same plea in bar secondly above pleaded last mentioned, and at and before the passing of the said act of the General Assembly in the said plea in bar secondly above pleaded, first mentioned, and at and before the departing of the said Archibald and John Hamilton, in conformity to the said act of the General Assembly herein before pleaded by way of reply, by and before the time of the making of the said writing obligatory in the said declaration mentioned, and at and before the time of making of the said act of the General Assembly herein before pleaded by way of reply, and the said fourth day of July, in the year 1776, and long before, then, and from the times of their nativities respectively were, and from thence continually hitherto have been, and still are subjects of his Britannic Majesty, owing and acknowledging their allegiance him. And that the said debt in the said declaration mentioned was contracted, and the said writing obligatory therein mentioned was executed by the said John Eaton, bona fide, before the time of the making of the still definitive treaty, (to wit,) on the said - day of - in the year 1777, and and the same debt still remains wholly due and owing from the said John Eaton to the said Archibald and John Hamilton, and hath nor hath any part thereof been paid or satisfied to them, or either *19 of them, (that is to say,) at the state of North-Carolina aforesaid, and now in the said district of North-Carolina, and within the jurisdiction of this court, And the said Archibald and John Hamilton further say that by the constitution ordained and established by the people of the United States for the United States of America, done in convention after the said third day of September, in the said year 1783, (to wit,) on the seventeenth day of September in the year of our lord 1787, it is (among other things) expressly declared that all treaties which were then made, or which should be made, under the authority of the United States, should be the supreme law of the land, any thing the said constitution or laws of any state to the contrary notwithstanding; as by the same constitution more fully appears. And the said Archibald and John Hamilton further say that, by an act made and provided in a General Assembly of the State of North-Carolina begun and held at Tar-borough, now in the district of North-Carolina aforesaid and within the jurisdiction of this court, after the said third day of September, in the said year one thousand seven hundred and eighty three, and after the said seventeenth day of September in the said year 1787, it on (to wit,) on the eighteenth day of November, in the year of our lord 1787, and in the twelfth year of the independence of the said state, entitled, an act declaring the treaty of peace between the United States of America and the king of Great-Britain to be part of the law of the land, it is enacted by the authority of the same General Assembly, that the articles of the definitive treaty between the United States of America and the king of Great-Britain, were thereby declared to be part of the law of the land. And it was also thereby further enacted by the same authority, that the courts of the law and equity were thereby declared in all cases and questions cognizable by them, respecting the said treaty, to judge accordingly; as by the same act more fully appears. Wherefore, for that the said Archibald and John Hamilton were merchants, and were and are subjects of the said king of Great-Britain, and creditors on his side as aforesaid; and the said debt was bona fide contracted before the making of the said definitive treaty, and the ordaining and establishing of the said constitution, and the passing of the said act declaring the said definitive treaty to be part of the law of the land: they, the said Archibald and John Hamilton, pray judgment and their said debt, together with their damages, occasioned by the detaining of the same, to be adjudged to them, &c.

III. AND the said Archibald and John Hamilton as to the plea of the said John Eaton by him thirdly above pleaded in bar: say that they, by reason of any thing in that plea alledged, ought not to be barred from having or maintaining their said action thereof against him. Because, protecting that, that plea and the matters therein contained are not sufficient in law to bar the said Archibald and John Hamilton from having or maintaining their said action against the said John *20 Eaton, for replication they, the said Archibald and John Hamilton, say that true it is that the said John Eaton, at the time of making of the said act at Halifax in the same plea in bar thirdly above pleaded, and at the time of making of the said act passed at Newbern, in November in the year 1777, and the said act passed at Halifax as aforementioned and continually before the said times respectively from the day of the date of the writing obligatory aforesaid, was, and had been an inhabitant of the said state, living and residing within the same, (to wit,) at the county of Halifax aforesaid. Yet the said Archibald and John Hamilton further say that, by an act made and provided in a General Assembly of the state of North-Carolina, begun and held at Newbern aforesaid, in the said state of North-Carolina, and now in the district of North-Carolina, and within the jurisdiction of this court, after the said fourth day of July, in the year 1776 aforesaid, and before the time of making the said writing obligatory, and before the passing of the said act of the General Assembly at Halifax, on the eighteenth day of October, in the year of our lord one thousand seven hundred and seventy nine, in the same plea mentioned, to wit on the eighth day of April in the year 1777 aforesaid, entitled, “an act declaring what crimes and practices "against the state shall be treason, and what shall be misprision of treason, "and providing punishments adequate to crimes of both classes, and for "preventing the dangers which may arise from persons disaffected to “the date,” (among other things) it is enacted, by the authority of the same General Assembly, that all the then late officers of the king of Great-Britain, and all persons (quakers excepted) being subjects of the said state, and then living therein, or who should thereafter come to live therein, who had traded immediately to Great-Britain or Ireland, within ten years then last past, in their own right, or acted as storekeepers, factors or agents here, or in any of the United States of America, for merchants residing in Great-Britain of Ireland, should take a certain oath of abjuration and allegiance therein mentioned, or depart out of the said state: and it is by the same act provided that all and every such person, and persons, should have liberty, and that they might also nominate and appoint an attorney or attornies, to sell and dispose of his, or their estates for his or their own use and benefit, as by the same act (among other things) may more fully appear. And the said Archibald and John Hamilton further say that they, on the said eighth day of April, in the year 1777 aforesaid, and long before then, were, and from the time of their nativities respectively continually hitherto have been and still are, subjects of, and owing allegiance to, the said king of Great-Britain; and that they, the said Archibald and John Hamilton, on the same day and year last aforesaid, and for a long time, (to wit) the space of ten years before the making of the same act, and until the time herein after mentioned, were merchants and copartners, living in the then state, and formerly province of North-Carolina aforesaid, and had within, and during the said space *21 of ten years last past, before the making of the same act, traded immediately to Great-Britain, (to wit,) at - in their own right, (that is to say,) at the state of North-Carolina aforesaid, and now in the district of North-Carolina aforesaid, and within the jurisdiction of this court. And after the said eighth day of April, in the year one thousand seven hundred and seventy seven aforesaid, and before the time of the departure of the said Archibald and John Hamilton herein after mentioned (to wit,) on the same — day of - in the said year 1777, at North-Carolina aforesaid, now in the said district of North-Carolina and within the jurisdiction of this court, the said John Eaton made his said writing obligatory in the said declaration mentioned; and by the same writing obligatory, he the said John Eaton, then and there bona fide contracted the said debt in the said declaration mentioned. And the said Archibald and John Hamilton further say that, after the said eighth day of April, in the said year 1777, and after the making of the said writing obligatory, (to wit) on the - day of —, in the year 1777 aforesaid, they, the said Archibald and John Hamilton, then-being merchants and copartners as aforesaid, and having lived, resided and inhabited, and then living, residing and inhabiting in the state of North-Carolina aforesaid, in the manner herein before mentioned, and having traded immediately to Great-Britain aforesaid, within and during ten years last past before the making of the same act as aforesaid, and then being the subjects of, and owing allegiance to the said king of Great-Britain as aforesaid, and the said John Eaton having contracted the said debt bona fide with the said Archibald and John Hamilton aforesaid; and the said Archibald and John Hamilton, being creditors in that respect as aforesaid, they and each of them did refuse to take the oath of allegiance to the said state, in the said act prescribed, and did withdraw themselves from the said state and from the United States of America aforesaid, and, they, and each of them did remove and depart out of the said state, (to wit,) to Europe, in conformity to the tenor, true intent and meaning of, and in obedience to, the same last mentioned act of the General Assembly. And they, the said Archibald and John Hamilton further say, that by the definitive treaty of peace between the United States of America aforesaid and his Britannic Majesty aforesaid, made and done at Paris, after the said fourth day of July, in the said year 1776, and after the time of making of the said writing obligatory, and after the departure of the said Archibald and John Hamilton, in conformity and obedience to the act of the General Assembly herein before pleaded, and after the passing of the said act of the said General Assembly in the same plea in bar pleaded, (to wit,) on the third day of September, in the year of our lord 1783 , it is (among other things) stipulated and agreed that creditors on either side should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts theretofore contracted, as by the same treaty, (among other things) may more fully ap*22pear. And the said Archibald and John Hamilton further in fa say, that they at the time of the making of the said definitive treaty, and for a long time before then, (to wit,) on the said — day — in the said year 1777, were, and from that same day continually hitherto have been, and still are, creditors of the said John Eaton, by virtue of the writing obligatory in the said declared mentioned, in manner and form as therein is declared, and on the side of his said Britannic Majesty, within the true intent and meating of the said definitive treaty, (that is to say,) at the state of North Carolina aforesaid, now in the district of North-Carolina, and within the jurisdiction of this court, and that they, the said Archibald and John Hamilton, at the time of the making of the said definite treaty, at and before the passing of the said act of the General Assembly in the same plea in bar pleaded, and at and before the departing of the said Archibald and John Hamilton, in conformity to the act of the General Assembly herein before pleaded, by way of reply, and at and before the time of the making of the said writing obligatory in the said declaration mentioned, and at and before the time of the making of the said act herein before pleaded, by way of reply, and on the said fourth day of July in the said year 1776, and long before, then and from the times of their nativities respectively, were, and from thence continually hitherto have been, and still are, subjects of his said Britannic majesty, owing and acknowledging their allegiance and obedience to him. And that the said debt, in the said declaration mentioned, was contracted, and the said writing obligatory therein also mentioned made and executed by the said John Eaton, bona fide, before the time of the making of the said definitive treaty, (to wit,) on the said — day of- in the said year 1777, and the same debt still remains wholly due and owing from the said John Eaton to the said Archibald and John Hamilton, and hath not, nor hath any part thereof, been paid or satisfied to them, or either of them, that is to say, at the state of North-Carolina aforesaid, and in the said district of North-Carolina, and within the jurisdiction of this court. And the said Archibald and John Hamilton further say that by the constitution ordained and established by the people of the United States for the United States of America, done in convention after the said third day of September, in the said year 1783, (to wit,) on the seventeenth day of September in the year of our lord 1787, it is (among other things) expressly declared that all treaties which were then made, or which, should be made, under the authority of the United States, should be the supreme law of the land, any thing in the said constitution or laws of any state to the contrary notwithstanding, as by the same constitution more fully appears. And the said Archibald and John Hamilton further say that, by an act made and provided in a General Assembly of the state of North-Carolina begun and held at Tarborough, now in the district of North-Carolina aforesaid, and within the jurisdiction of this court, after the said third day of Septem*23ber in the said year one thousand seven hundred and eighty three, said after the said seventeenth day of September in the said year 1787, on wit the eighteenth day of November, in the year of the and in the twelfth year of the independence’ of the said state, entitled, an act declaring the treaty of peace between the United States, of America and the king of Great-Britain to be left of the of the land, it enacted by the authority of the same General Assembly, that the articles of the definitive treaty been the United States of America and the king of Great-Britain, were thereby declared to be part of the law of the land. And it was also thereby further enacted by the same authority, that the courts of law and equity were thereby declared in all cases and questions cognizable by them, respecting the said treaty, to judge accordingly as by the same act more fully appears, Wherefore for that the said Archibald and John Hamilton were merchants, and were and subjects of the said king of Great-Britain, and creditors on his side as aforesaid; and the said debt was bona fide contracted before the making of the said definitive treaty, and the ordaining and establishing of the said constitution, and the passing of the said act declaring the said definitive treaty to be part of the law of the land; they, the said Archibald and John Hamilton, pray judgment and their said debt, together with their damages, occasioned by the detaining of the same, to be adjudged to them, &c.

IV. AND the said Archibald and John Hamilton, as to the said plea of the said John Eaton, by him fourthly above pleaded in bar, say that they, by reason of any thing in that same plea alledged, ought not to be barred from having or maintaining their said action thereof against him because, protecting that that same plea and the matters there contained are not sufficient law to bar the said Archibald and John Hamilton from having or maintaining their said action against the said John Eaton for replication they, the said Archibald and John Hamilton say that true it is that on the said fourth day of July, in the year 1776, and continually afterwards, until the said thirtieth day of November, in the said year 1782, there was an open war between the said king of Great-Britain and the United States of America aforesaid, and that on the said fourth day of July, in the said year 1776, the said Archibald and John Hamilton were residents and inhabitants, and each of them was a resident and inhabitant of this and continued to reside, and inhabit within the same until the said 20th day of October, in the said year 1777. Yet the said Archibald and John Hamilton further say, that by an act made and provided in a General Assembly of the state of North-Carolina begun and held at Newbern aforesaid, in the said state of North-Carolina, and now in the district of North-Carolina, and within the jurisdiction of this court, after the said fourth day of July, in year one thousand seven hundred and seventy-six aforesaid; and before the time of the making of the said writing obligatory, *24 (to wit,) on the eighth day of April, in the said year 1777, entitled, an act declaring what crimes and practices against the state shall be treason and what shall be misprision of treason, and providing punishments adequate to crimes of both classes, and for preventing the dangers which may arise from persons disaffected to the state, (among other things) it is enacted by the authority of the same General Assembly, that all the then late officers of the king of Great-Britain and all persons (quakers excepted) being subjects of the said state then living therein, or who should thereafter come to live therein who had traded immediately to Great-Britain or Ireland, within ten years then last past, in their own right, or acted as factors, storekeepers or agents here, or in any of the United States of America for merchants residing in Great-Britain or Ireland, should take a certain oath of abjuration and allegiance therein mentioned, or depart out of the said state. And it is by the same act provided, that all and every such person and persons should have liberty, and that they might also nominate and appoint an attorney or attornies, to sell and dispose of his or their estate for his or their use and benefit as by the same act (among other things) may more fully appear. And the said Archibald and John Hamilton further say, that they on the said eighth day of April, in the year one thousand seven hundred and seventy seven aforesaid, and long before then, were, and from the time of their nativities respectively, continually hitherto have been, and still are, subjects of, and owing allegiance to, the said king of Great-Britain. And that they, on the same day and year last aforesaid, and for a long time (to wit) for the space of ten years before the making of the same act last mentioned, and until the said first day of September, in the said year one thousand seven hundred and seventy seven, were merchants and copartners, living in the then date, and formerly province of North-Carolina aforesaid, and had within and during the said space of ten years last past, before the making of the same last mentioned act, traded immediately to Great-Britain, in their own right (that is to say) at the state of North-Carolina aforesaid, and now in the district of North-Carolina aforesaid, and within the jurisdiction of this court: and after the said eighth day of April, in the said year 1777, and before the said twentieth day of October in the said year one thousand seven hundred and seventy seven, to wit, on the same — day of - in the said year one thousand seven hundred and seventy seven, at North-Carolina aforesaid, now in the said district of North-Carolina, and within the jurisdiction of this court, he the said John Eaton made his said writing obligatory in the said declaration mentioned, and by the same writing, he the said John Eaton, then and there bona fide contracted the said debt in the said declaration mentioned. And the said Archibald and John Hamilton further say, that after the said eighth day of April in the said year 1777. and after the making of the said writing, obligatory, to wit, on the said twentienth day of October, in the year 1777 aforesaid, they the *25said Archibald and John Hamilton, then being merchants and copartners as aforesaid, and having lived, resided and inhabited, and then living, residing and inhabiting in the state of North-Carolina aforesaid, in the manner herein before mentioned, and having traded immediately to Great-Britain aforesaid, within and during ten years last past before the making of the same act as aforesaid, and then being the subjects of, and owing allegiance to, the said king of Great-Britain as aforesaid, and the said John Eaton having contracted the said debt bona fide with the said Archibald and John Hamilton aforesaid; and the said Archibald and John Hamilton, being creditors in that respect as aforesaid, did withdraw themselves from the said state and from the United States of America aforesaid, and, they, and each of them did remove and depart out of the said state, (to wit,) to Europe, in conformity to the tenor, true intent and meaning of, and in obedience to, the same last mentioned act of the General Assembly, and continually afterwards, from the said twentieth day of October in the said year 1777, until the termination of the said war, the said Archibald and John Hamilton resided beyond the limits of the said United States, under the sovereignty and jurisdiction of the said king, owing and acknowledging their allegiance to him, and during all the time last aforesaid, they, the said Archibald and John Hamilton, did not, nor did either of them, return into the said state, to be admitted citizens or a citizen thereof: and the said Archibald and John Hamilton further say, that true it is, that afterwards, such act of the General Assembly of this state, held at Halifax, on the eighteenth day of October, in the year 1779 aforesaid, was made as in the same plea in bar, fourthly above pleaded, is alledged. Yet they, the said Archibald and John Hamilton further say, that by the definitive treaty of peace between the United States of America aforesaid and his Britannic Majesty aforesaid, made and done at Paris, after the said fourth day of July, in the said year 1776, and after the time of making of the said writing obligatory, and after the departure of the said Archibald and John Hamilton, in conformity and obedience to the act of the General Assembly herein before pleaded, and after the passing of the said act of the said General Assembly in the same plea in bar pleaded, (to wit,) on the third day of September, in the year of our lord 1783, it is (among other things) stipulated and agreed that creditors on either side should meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts theretofore contracted, as by the same treaty, (among other things) may more fully appear. And the said Archibald and John Hamilton further in last say, that they, at the time of the making of the said definitive treaty, and for a long time before then, (to wit,) on the said - day of - in the said year 1777, were, and from that same day continually hitherto have been, and still are, creditors of the said John *26Eaton, by virtue of the writing obligatory in the said declaration mentioned, in manner and form as therein is declared, and on the side of his said Britannic Majesty, within the true intent and meaning of the said definitive treaty, (that is to say,) at the state of North-Carolina aforesaid, now in the district of North-Carolina, and within the jurisdiction of this court: and that they, the said Archibald and John Hamilton, at the time of the making of the said definitive treaty, at and before the passing of the said act of the General Assembly in the same plea in bar pleaded, and at and before the departing of the said Archibald and John Hamilton, in conformity to the act of the General Assembly herein before pleaded, by way of reply, and at and before the time of the making of the said writing obligatory in the said declaration mentioned, and at and before the time of the making of the said act herein before pleaded, by way of reply, and on the said fourth day of July in the said year 1776, and long before, then and from the times of their nativities respectively, were, and from thence continually hitherto have been, and still are, subjects of his said Britannic majesty, owing and acknowledging their allegiance and obedience to him. And that the said debt, in the said declaration mentioned, was contracted, and the said writing obligatory therein also mentioned made and executed by the said John Eaton, bona fide, before the time of the making of the said definitive treaty, (to wit,) on the said — day of — in the said year 1777, and the same debt still remains wholly due and owing from the said John Eaton to the said Archibald and John Hamilton, and hath not, nor hath any part thereof, been paid or satisfied to them, or either of them, that is to say, at the state of North Carolina aforesaid, now in the said district of North-Carolina, and within the jurisdiction of this court. And the said Archibald and John Hamilton further say that by the constitution ordained and established by the people of the United States for the United States of America, done in convention after the said third day of September, in the said year 1783, (to wit,) on the seventeenth day of September in the year of our lord 1787, it is (among other things) expressly declared that all treaties which were then made, or which should be made, under the authority of the United States, should be the supreme law of the land, any thing in the said constitution on laws of any state to the contrary notwithstanding: as by the same constitution more fully appears. And the said Archibald and John Hamilton further say that, by an act. made and provided in a General Assembly of the state of North-Carolina begun and held at Tarborough, now in the district of North-Carolina aforesaid, and within in the jurisdiction of this court, after the said third day of September, in the said year one thousand seven hundred and eighty three, and after the said seventeenth day of September in the said year 1787, to wit, on the eighteenth day of November, in the year of our lord 1787, and in the twelfth year of the independence of the said state, entitled, an act declaring the treaty of peace between the Unit *27 ed States of America and the king of Great-Britain to be part of the law of the land, it is enacted by the authority of the same General Assembly, that the articles of the definitive, treaty between the United States of America and the king of Great-Britain, were thereby declared to be part of the law of the land. And it was also thereby further enacted by the same authority, that the courts of law and equity were thereby declared in all cases and questions. cognizable by them, respecting the said, treaty, to judge accordingly; as by the same all more fully appears. Wherefore, for that the said Archibald and John Hamilton were merchants, and were, and are subjects of the said king of Great-Britain, and creditors on his side as aforesaid; and the said debt was bona fide contracted before the making of the said definitive treaty, and the ordaining and establishing of the said constitution, and the passing of the said act declaring the said definitive treaty to be part of the law of the land; they, the said Archibald and John Hamilton, pray judgment and their said debt, together with their damages, occasioned by the detaining of the same, to be adjudged to them, &c.

W. R. DAVIE, pro Quær.

DEMURRERS.

I. AND the said John Eaton says that the plea aforesaid, by the said Archibald and John Hamilton, above in replying first pleaded, and the matters therein contained are not sufficient in law, to compel the said John Eaton to answer to the aforesaid declaration of said Archibald and John Hamilton, to which the said John Eaton has no necessity, nor is he, by the law of the land bound, in any manner to answer: and this he is ready to verify. Wherefore, for default of a sufficient replication of the said Archibald and John Hamilton

in this behalf, the said Eaton as before prays judgment, whether the said Archibald and John Hamilton ought to have and maintain their said action against him, &c.

II. AND the said John Eaton says that the plea aforesaid, by the said Archibald and John Hamilton, above, in replying second pleaded, &c. as above.

III. AND the said John Eaton says that the plea aforesaid, by the said Archibald and John Hamilton, above in replying, thirdly pleaded &c. as above.

IV. AND the said John Eaton says that the plea aforesaid, by the said Archibald and John Hamilton, above in replying fourthly pleaded &c. as above.

JOHN HAYWOOD, pro Def.

*28I. AND the said Archibald and John Hamilton say that the plea aforesaid by them the said Archibald and John Hamilton in manner and form aforesaid first above in replying pleaded, and the matter therein contained, are good and sufficient in law to compel the said John Eaton to answer to the declaration of them, the said Archibald, and John Hamilton: which said, plea and the matter therein contained the said Archibald and John Hamilton are ready to verify and prove, as the court &c. And because the said John Eaton to that plea doth not answer, nor has hitherto any way denied it, the said Archibald and John Hamilton pray judgment, &c.

II. AND the said Archibald and John Hamilton say that the plea aforesaid by them the said Archibald and John Hamilton in manner and form aforesaid secondly above in replying pleaded &c. as above.

III. AND the said Archibald and John Hamilton say, that the plea aforesaid by them the said Archibald and John Hamilton in manner and form aforesaid thirdly above in reply pleaded, &c. as above.

IV. AND the said Archibald and John Hamilton say that the plea aforesaid by them the said Archibald and John Hamilton in manner and form aforesaid fourthly above in replying pleaded &c. as above.

W. R. DAVIE, pro Quær.

At June term 1796, this cause was argued.

Baker * for the demurrer.

I rise to enter into the argument of this important question, with all the diffidence, which the importance of the subject, and the shortness of the time allotted to me for the consideration of it, are naturally calculated to inspire; and my diffidence is increased, when I consider that the investigation necessarily involves in it an enquiry into the constitutional powers and authorities of the late confederation and of our own state government an enquiry which cannot be other than an important one at any time. Yet, when I take a review of the subject, and deliberately consider the arguments which may be properly offered on both sides, I derive much confidence from a conviction that my client’s defence is a substantial one; and flatter myself it will so appear to your Hon*29ors, nif I can have the happiness to make myself intelligible in the manner I with.

In examining this question, altho' the right of making the confiscation by our state legislature is not denied by the pleadings: yet with the view to shew the extent of that right, and to give the greater force to arguments which I shall draw from it, I beg the indulgence of this court, while I take a summary view of the doctrine, as explained by the most respectable writers on the laws of actions, and as recognized by the laws of England. I then contend that a sovereign state may rightfully confiscate debts due from its citizens, to the subjects of its enemy.

To prove this I will consider, 1st. the nature of war.

Vattel, page 519, § 138, says, “the business of a just war being 'to suppress violence and injustice, it gives a right to compel by 'force him who is deaf to the voice of justice; it gives a right of 'doing against the enemy whatever is necessary for weakening him, ‘or disabling him from making any farther resistance in support of 'his injustice: and the most proper methods may be chosen, pro'vided they have nothing odious, be not unlawful in themselves, or ‘exploded by the law of nature.” If this is the case, it follows of course, I humbly conceive, that a debt may be confiscated: for by that the state deprives the enemy of one great mean of supporting the war against her. The amount of debts due to British subjects in the several states at the commencement of the war with Great-Britain would have made no inconsiderable sum to be carried into the opposite scale; by depriving the enemy of this, which we do by with holding it from his subjects, we lessen his strength and add to one own: or at least we prevent the diminution of our own very considerably. For how would it have weakened and distressed us to have paid up debts to such large amount, at that particular time, in specie, (which was the only money that the creditors would receive) which would immediately have been carried out of the country, and we deprived of any benefit arising from the circulation of it among us? I presume that such a collection, could it have been made would have taken every penny of the specie then in circulation: and it is unnecessary for me to dwell on the inconveniencies and distresses the carrying it out of the country would have put our government to, at that time; every body knows the difficulties under which we had to struggle for the want of specie; altho’ we were not drained of it as we should have been, had these debts have been paid up. By withholding these debts, many whose greatest property consisted in them, might, from motives of interest, remain among us and join in the defence of our liberties; and the enemy from the cries and importunities of the creditors, who deserted and left their debts unpaid, might be the more readily brought to the sense of justice towards us; which, the elegant author I have quoted says, we have a right to compel him to, by any just means in our power. If the right to confiscate debts is denied; what would not be the *30inconvenience and injustice of it? We should have to defend the property of our very enemy; for the property of the debtor to the amount of the debt, in fact, belongs to the creditor. It is, at least the fund out of which it is to be paid, and upon which it is secured; the debtor protests and insures that fund, against the creditor, who contributes nothing to its protection; but, on the contrary, by his conduct, makes that protection and insurance more difficult and expensive. In fact, it is against him alone that any exertion for the protection is necessary to be made. It cannot be denied but property of every description, other than debts, may be confiscated: and, if so, it is surely just that debts also should be; otherwise one party, whose property in the enemy’s country confiscated of debts would have a material advantage over the other, who had property of other kind in the enemy’s country, which might and would be confiscated.

Having observed this much, with the view to shew that the right of confiscating debts is a right which every nation may lawfully ex exercise against its enemy, on the breaking out of a war, in conformity to those general rules before mentioned from Vattel: I will now trouble the court with a few cases, to prove more particularly that debts may be confiscated.

Vattel, p. 484, § 77, says, “among the things belonging to “the enemy are likewise incorporeal things; and all the rights, ti“tles and debts, excepting however those kind of rights granted “by a third person, and in which he is so far concerned that it is “not a matter of indifference to him by whom they are possessed. “Such, for instance, are the rights of commerce. But, as debts are “not of this number, war gives us the same right over any sum of “money due by neutral nations to our enemy, as it can give over “his other goods.” The same doctrine is said down 3d. Grotius 143, and goes to shew beyond question that, by the law of nations, a debt may be confiscated as well as any thing else; even if that debt is due by a neutral nation to the enemy. And if so, much more ought it to be the case, when due by one of our own citizens, who is in our own country, and himself and property subject to no other power but the laws of our own government.

This right of confiscating debts is recognized by the law of England, which must also be the law here. Parker’s reports of Exchequer cases. 27. “Attorney-General vs. Weeden and Shales. In this “case, upon long debate, it was resolved 1. That choses in ac“tion, which belonged to an alien enemy, were forfeitable to the “crown, Maynard’s Edward 2, inter memorand. scaccar, 41.

“2. That this ought to be found by inquisition to make a title “to the king, and that this was an inquisition of entitling and not "of instruction, Page’s case, 5, Co. 52.

“3. That the peace, being concluded before the inquisition was “taken, discharged the cause of forfeiture.

“4. That the inquisition, taken afterwards, did not relate to

*31 'set up their forfeiture; for the cause was but temporary, and that 'cause being removed before the king’s title was found, the fin'ding after should not relate.” Here the doctrine, contended for by the defendant, is fully established; for it shews the right to make confiscation, although it was considered not

to have been made in this case: because the requires were not performed until the peace when the right ceased. But, in our own case, I apprehend every necessary requisite was performed. The act of Assembly raming the party, and what property should be confiscated, of itself was equal to an inquest of entitling—and any further inquest, that might possibly be necessary for any purpose, in the case, could not be considered in any other light, than that of an inquest of instruction; which could not affect the right, and is only had for the purpose of assisting the officers of the revenue. This was answered in our case, By the commissioners, who were appointed by the act, to collect the debts &c. especially, as the debt was actually paid into the hands of those commissioners.

In the courts of law of England, it is a good bar of the plaintiff’s action, to plead that he is an alien enemy. 1 Hale, 95, 1 Bacon’s abridgt. 84, 85, Cro. Eliz. 182. And every bar is perpetual, 6 Rep. 7, Ferrar’s case, ib. 46. Higgins' case.

This also shews that a debt may be confiscated; for if this is a good bar to the action and that bar is perpetual, it must be on the principle, that it is unlawful for the defendant to pay the debt to one who is an enemy, and who will use it to the injury of the state, whose subject he is; but it surely does not discharge the debtor, for that would operate as a benefit to the individual, and not to the community at large; for which there is no reason, and therefore the debt must belong to the state, which is placed in the shoes of the original creditor, and then he is properly barred from a recovery.

This right of a sovereign state is not usually exercised in England; because their Magna Charta provides in another manner for them. That is by putting them in sequestration, until it should be known how their merchants are treated in the enemy’s country, and that if they were well treated, these should be so too. This Magna Charta is a kind of constitutional act, and therefore cannot be considered to extend in its operation to this country, as we have a written constitution of our own; and we have not thought proper to introduce such a principle as this into the constitution, it follows that the sense of the people was against it.

But, this right of a sovereign state is recognized by the present judges of England. H. Black. 135, 149, 3, Term Rep. 731.

This is a regulation calculated to suit a mercantile country like that of Great-Britain; being instituted for the convenience and protection of their merchants, and the support of their trade; that trade from which they themselves derive such national support, and without which their same as a nation, would not perhaps, even at this day, have far extended beyond the limits of their own little island. *32Even this regulation proves, that the right I contend for may be exercised, if the government think proper, and that it did exist before Magna Charta. If so, it must now exist here. This regulation is not used in England now, because by treaties with the European powers, the merchants on the breaking out of a war are allowed certain number of days to withdraw themselves and their effects, &c Sullivan's Lectures, 527. But no such treaties are opposed to the right in our case; and in our case the right remains therefore as it was originally, cleared of all objections of this first. If it is said to be unjust, and that it affects the sacred obligation of contracts; I answer that there is no more injustice in the state seizing on our kind of property than another. In either case, the person whose property is seized, has an equal claim on his own sovereign for compensation for his loss; and as to its affecting private contracts, the creditor having by his own conduct put himself out of the protection of the law which made the legal obligation of the contract, he is no more deprived of his right in the case of a debt, than in the case of any other property, which is taken from him. For in either case, he is disabled to sue for redress; and if the law did not provide in some manner for the case of the debtor, he would be the sufferer instead of the creditor; as there would be no one to whom he could lawfully pay his debt: and it is just and right that he should be authorized, by same competent authority, to discharge his contract when it became due; as the right to pay it to the original creditor is taken away. This mode of affecting the right to choses action, by acts of the legislature, is frequently exercised in England.

1. It is done by acts of attainder, 4, Bac. Abr. 214.

2. It is also done on conviction for treason or felony. 2, Bac. Abr. 577.

3. Also by outlawry. 3, Bac. Abr, 734, 4, Ib. 214.

4. By bankruptcy, by force of the acts, although the debt be due in a foreign country. 4, Term Rep, 182. H. Blackst. Rep. 131, due in a foreign country in notis.

5. It was also done, ipso facto, by the south sea act; which vested the whole estate of the directors, in the hands of commissioners for the payment of their debts. 1 P. Williams, 895.

In these cases of forfeiture the debt is so compleatly vested, that the assignee of the king may sue in his own name. 4, Bacon, 214.

Having now established unquestionably, as I humbly conceive, the right of the state to confiscate the debt: I will proceed to shew, in the next place, that they have made such confiscation, fully and absolutely. But the only parts of the confiscation acts, which I shall beg the attention of the court to, at present, are the 2d section of the act of 1779, entitled, “ an act to carry into effect, a former "confiscation act, &c.” in which it is enacted, ‘that all the lands, ‘tenements, and personal property, within the state, of a number 'of persons by name and among the rest the present plaintiffs and ‘of all others, who come within the meaning of the confiscation *33‘and this act, and all and every the right, title and interest, which 'all or each of, the said persons may have had therein, on the 4th ‘day of July, 1776, or at any time since, shall he, and hereby are 'declared to be confiscated, fully and absolutely forfeited to this 'state: and shall be vested in the hands of commissioners, as in 'this act directed, to be appointed for the purpose herein after 'mentioned and the 3d section of the same act which among other things, says “the commissioners shall have full power and authori ‘to take possession of all lands, tenements, hereditaments, monies, ‘debts, whether due by judgment, bond, bill, note, or otherwise, 'and all other personal property of the persons aforesaid, in the name and for the use of the state; and shall give receipts and discharges, which shall forever indemnify and acquit the persons de'livering or paying the fame, their heirs, executors and adminis-‘trarors, against any future claim, for the article or money menti'oned in such receipt and discharge,” This act is sufficiently full and explicit to veil the property of this debt in the state: and I feel satisfied that I have now established both the right to make the confiscation, and the legal exercise of that right, in the manner set forth in the defendant’s pleas. Here, I might rest the case until the counsel for the plaintiff should shew some legal ground, upon which this debt, which was thus legally divested, has become since reverted in his client: so as to entitle him to recover, notwithstanding this act. But in this case, the debt was actually received by the state, and thereby became extinct, as between the original creditor debtor. To prove this, it is only necessary, I conceive, to state again what I have already proved, that is that the state had right of confiscation, and that they exercised that right. For then it follows necessarily, that the state, having taken the creditor’s right to herself, has lawfully a right to receive the debt of the debtor; and therefore, the debt was lawfully paid. And, if once law fully paid, it is surely entirely discharged as much as it could be, in case of a payment to the creditor himself, or any assignee of his, or any other person lawfully authorized to receive; whether under authority from him, or any other competent authority; the contract was entirely at an end, there being after this payment, neither debt, debtor, nor creditor. This appears to me, to be such a necessary and clear conclusion that it would not need the aid of authority. I shall therefore adduce only one, in support of it, and that is Bynk. 2, J. P. L. 1, c. 7. who says: “what I have said of things in action, being rightly confiscated holds thus, if the prince really 'exacts from his subjects, what they owed to our enemies. If he 'shall have exacted it, it is rightfully paid. If he shall not 'have exacted it; peace being made, the former right of the cre'ditor revives accordingly, It is for the most part agreed among na‘tions, that things in action being confiscated in war, the peace be'ing made, those which are paid are deemed to have perished, and *34'remain extinct. But those not paid revive, and are restored to 'their true creditors.” After having shewn the confiscation and discharge of the debt, in this manner, I shall proceed to consider the operation of the 4th article of the treaty of peace, relied on in the replication, as a repeal of the confiscation acts.

1. This 4th article may be considered as standing alone, and unconnected with any other article of the treaty.

2. As connected with the two following clauses.

As standing alone, whether it be a repeal of the act of 1779 or not, depends upon what ought to be considered the meaning of the word creditors; which is of doubtful signification as used in this place. It may mean those who were creditors at the time of the treaty, their debts not being transferred from them by confiscation to the state, and then remaining unpaid: or it may mean those who had been creditors and were then unpaid, although their debts might have been transferred to the state by confiscation.

To give to this clause the meaning first mentioned, will entitle creditors of the first class only to recover. But to give it the other, those of each class, and of course, the present plaintiffs, will be entitled to recover; if the payment to the state does not alter the case, which it undoubtedly does: for surely it is not reconcileable to our understandings, to call those creditors whose debts have been once legally discharged. Which of those two meanings is to prevail, must depend upon the true rules of found construction.

1. I conceive then, that the date, having lawfully acquired those debts by a clear title, is entitled to retain that acquisition, until as clear a relinquishment be shewn. Vatt. 645 , § 21.

2. Where a treaty will admit of two different constructions, that which changes the present state of things is to be rejected; and that in favour of the possession to be received; this is the clear opinion of Vattel, 399, § 305.

If the present plaintiffs can recover, under the authority of the treaty, the state of things in our country is changed in this respect. At least the money which the plaintiffs seek a recovery of, was legally and absolutely in our possession ; as much so, as property of this kind could be in any case. The very money was in our treasury; and, if they are now to recover it of the defendant, it must be taken out again to reimburse him. If this is not changing the state of things as they existed at the time of the treaty, I confess I am ignorant of what would.

3. In cases of doubt, the construction ought to be against the proposer of the article. Vattel, 651, & 32. Gro. c. 20, & 26. This is a clause inserted, beyond doubt, at the instance and for the benenefit of the other party; it is not reasonable to suppose, that we should voluntary propose such a one, which is thus calculated to confer such a benefit on them at our expense. If it was incumbention them to express themselves more explicity, and they have not done so, it is their own fault and not ours. Is it fair or just to ex*35tend this construction the length contended for, to the advantage of the proposer of the article, when it will lead to such absurdities, and when, if that had been the real intention of the parties, they might and ought to have expressed themselves, in such a manner as to have left no room for doubt ? How easy would it have been, to have said that these recoveries should be effected, in all cases of a debt due at the commencement of the war, not with standing the confiscation laws, &c, That would have put the business, so far as it

regarded the intention, at least beyond doubt. Surely, if their meaning had been, what is contended for, the words I have mentioned, or some other more fully to express that meaning, would have been used. But our commissioners never would have acceded to such an article: they knew too well the limits of their authority, to agree to any thing of the kind as will plainly be seen when the following clauses of the treaty are considered. I say our commissioners had no authority to enter into a treaty that would have the extensive operation which it is pretended this 4th article ought to have. Some of the states could not pass retrospective laws; and of course congress, their deputies or delegates, could not do any act which would have such an operation on rights legally acquired, under the laws of any state; nor could a majority of the states exercise such a right. How then could congress, which is a representation of the states and for a particular limitted purpose? Congress had the right to make treaties for the United States beyond doubt. But those treaties were to operate as compacts, and the faith of the several states stood pledged for the performance of them, so far as congress acted with good faith and within the limits assigned to them by the spirit of the confederation. If they, by their treaties interfered with the internal police of a particular state: as they were only chosen to manage the general concerns of the union, and not of a particular state, that state was not bound until she passed act to adopt the treaty as a part of her laws; congress, knowing this, would not stipulate positively to do any thing which should interfere with the laws of any state; but in such cases would only agree to recommend to the several states what they wished done; which in most cases would have the same effect. But it would not in all; nor could it in any, without the consent of the states explicitly given, by passing laws in conformity to it. This it will be seen is the part congress of their commissioners did act with regard to this very business, in that part of the 5th article of the treaty, which is recommendatory. And this leads me to consider this 4th article,

2. As connected with the two subsequent articles, the 5th and 6th.

This appears tome to be the true way to consider it: and this will be the more necessary, when we consider the short, vague terms of this 4th article: and give to the other two, the construction that is reasonable when compared with the 4th. By a different mode of construction one article might militate directly against another; and it would be impossible to account for the true meaning of every part of *36 the treaty satisfactorily. The propriety of this mode of construction is so self-evident, that I shall produce but a single authority to support it. Vattel 383, § 285, “we ought to consider the whole dis'course together; in order perfectly to conceive the sense of it, and 'to give to each expression not to much the signification it may receive 'in itself, as that which it ought to have from the thread and spirit of the discourse.”

Viewing these three articles together then, as they all relate to one general subject, it is plain that they import a full confirmation of all our confiscation laws. It is not stipulated that one of them shall be repealed or impaired in the least, only to far as the recommendation might have such an effect. How is it then that a debt legally confiscated and vested in the state by an actual payment into the treasury, can be considered as given up, of the act of 1779 repealed ?

If the 4th article is considered to stand alone, then such a construction as is contended for, would appear more reasonable: but why should we resort to this article alone, to be informed of the intention of the contracting parties. Were the other two inserted for no purpose? They, in my opinion, fully explain the 4th; because they shew that it was not the intention of our commissioners to do any thing which should repeal an act of the legislature of any state, and that they only intended to give a right to recover such debts as were then due and unpaid; not being claimed by any state as her property, which would take in in debts in most of the states (for few of them I believe actually confiscated those debts, altho’ most of them passed laws for their sequestration) which not affecting the original creditor’s right absolutely, would of course be properly the subject of a treaty, and come under the operation of this 4th article. If this was not what our commissioners intended, why do they stipulate for recommendation to the several state legislatures for repeal of the confiscation laws? why do they require congress earnestly to recommend to the state legislatures to provide for restitution &c? why do they agree that other persons than those particularly described should have leave to go to any past of the United States, to remain twelve months unmolested, in their endeavours to recover their estates, rights and properties? why was it necessary to stipulate that this class of persons should pay the bona fide price, for which their property sold, on the same being delivered up by the legislature? and why was it necessary to state in the 6th article, that there should be no further confiscation, and no further loss &c.? If the confiscation laws were repealed; there could not be any further loss, and in fact there had been none, as the creditor was to recover the full value of his debt, and if the commissioners had a right to repeal a law of the state, why have they not done to positively in the cases where they have agreed to recommend only? for they have in that case equally shewn their willingness to restore the property as in the case of the debts: but so far from that, where any part of the contrast of our commissoners, was likely to affect exist*37ing laws of any of the states, they have only stipulated that congress should recommend a repeal of those laws to as to make them conformable to such agreement: which is all they have done or had the right to do. Our commissioners knew that it would not do to go further than this, if they had the right even. The states never would have consented to such a thing in the then situation of their affairs, and the people would have revolted at the very mention of a thing so shocking to their feelings, at that particular period, when the sufferings and miseries of the war were fresh in their minds. If say other than real British subjects were intended to be benefitted by the 4th article, it could only mean that no further impediments than those already created by the acts of the legislatures, should be imposed. If this is not what was intended, and on the contrary, they intended by these general words, to repeal every law of the states, which raised such an impediment, they must surely have acted on the supposition that they were cloathed with authority to effect such a repeal, or they were not acting with good faith, and if this was the case, how can we account for their stipulating to recommend only in every case, where a repeal is mentioned? If they had a right to repeal our laws in one case, to they had in another and there was as much reason for their doing it in one case as in the other; if we suppose a complete restitution was desired and intended as far as they were enabled to make it. If this idea, that our laws were confirmed by the treaty itself, the commissioners having gone in the principle of their not possessing authority to effect a repeal of them absolutely, is not made already sufficiently plain and evident, other proofs of it are not wanting.

1. The commissioner, on the part of Great-Britain, himself, so understood it: he attempted to get something more done for this class of people; but our commissioners, for the reasons already mentioned, refused to go any greater lengths to favor them. As a proof of this, I beg leave to refer to the correspondence on the subject between the commissioners on both sides, as it is stated by Mr. Jefferson when secretary of state, in his correspondence with Mr. Hammond, the British minister, p. 71, No. 8, 9, 73, 10, 76, 11.

2. It was also to understood by the ministry and members of parliament in Great-Britain, in the year 1783, when the preliminary articles were under consideration. Ibid 32, 33.

And these proofs are of such a nature as to carry entire conviction to my mind. Can any reasonable man suppose that our commissioners intended by this 4th article, to repeal every law of the states which confiscated these debts, when they all join in declaring that they have no right to repeal any one of those laws, because congress, from whom they derived their authority, had no such right? and when the British commissioner, on that declaration being persisted in, at length, agreed to accept such terms and such alone, with respect so the refugees, as our commissioners professed they had a right to agree to; and when the British ministry and the Parliament, who, *38we must suppose, would judge full favourably for themselves, declared they were satisfied that our commissioners had gone the full length of their authority, and did not pretend to require any think more of us, with respect to confiscations, than what the recommendations would probably effect. It is clear then they treated with us on this principle: and if we act up to that, altho' possibly the commissioners might have possessed greater powers than they thought and declared they did, yet we are surely not bound to extend the contract further than it was originally intended by the parties or both sides, when acting on this principle, thus fairly declared and understood at the time. But the true meaning of this 4th article is I humbly conceive, this: those who were real British subjects, residing in Great-Britain when the war commenced, should meet with no legal impediment to the recovery of their just debts &c. that in such debts as then existed, not forfeited and vested in the state by any act of the legislature, although the right to recover them had been taken away during the war, by the creditors becoming an alien enemy, or by some positive statute, disabling him to sue, or sequestering his property: nor were they to be impeded in their recoveries by the operation of tender or pine barren laws, or paid off with depreciated paper money, at its nominal value. These were the impediments that opposed themselves to the recovery, and these it was necessary to remove, and in the manner they have been removed by this 4th article, in order to give that full recovery which was had in view, and in fact it is nothing more than saying, we will be friends just hostilities shall cease: and courts of justice shall be opened for all just recoveries, on both sides. And although this might seem unnecessary in some degree, yet it is usual in such treaties, and serves to ascertained to the creditor beyond doubt, the right to sue on the return of peace which right, it is necessary, should be declared by some publish act of the before it could be noticed in the courts of law, although it should be otherwise ever so well known. But nothing of all this goes to show what shall be recovered that, I apprehend would have been expressed in stronger and more explicit terms, had it been the intention of the parties to regulate it in this clause. That was an office left however, for the 5th article to perform, which says, with regard to persons of the description of the present plaintiffs, for they cannot be considered real British subjects, I conceive, that they shall have leave to remain among us twelve months, endeavouring to recover their estates, rights and properties, under the recommendation of congress. These words of themselves are so full and expressive, as to take in debts and every other species of property, to which they might set up a claim and if so they are doubly provided for in the case of debts, if they are also to be included in the 4th article. But this cannot be the case, for why was it necessary to make any distinction at all, if every description of subjects were equally alike to be benefitted? To construe the treaty in such a manner, as to work, a repeal of the act of assembly, *39would be derogatory to the independence of the state, and productive of injustice and oppression. On the other hand, to preserve the independence of the state, and say that the treaty does not reveal any of her acts, and yet a very numerous class of creditors will be provided for, in the 4th article, which thus removes the impediment to the recovery of those debts, which had never actually been confiscated. To construe the treaty as is contended on the other side, those who have paid must pay again; for in this sense of the word creditors, as much as any other persons, the plaintiffs much be creditors.

But every treaty ought to be according to the fundamental law and constitution of the country for which it is made.

Vattel, 352, & 228, “thus also an oath cannot render treaty and that is not so; justify a treaty that is unjust in itself; nor law obligation to fulfill a treaty lawfully concluded, when a cause pretended where its observation would be unlawful. As for instance, if the ally, to whom succours have been promised, undertakes a war that is manifestly unjust. In short, every treaty prejudice to the state, every treaty made for a dishonest cause, or contrary to the fundamental laws, being null in its own nature; the oath that may have been added to such a treaty, is also null, and falls when the act it was intended to strengthen.” The same doctrine is laid own in p. 192, § 265, p. 296, § 154, p. 297, § 156.

And in p. 637, part of § 10, this author says, “when a limitted power is authorized to make peace, as he cannot of himself grant every condition, in order to treat on sure grounds with him, it must be required that the treaty of peace be approved by the nation or power, which can make good the conditions. As for instance, in treating of a peace with Sweden, if a defensive alliance and a guarantee be required for the condition, this stipulation will be of no effect unless approved and accepted by the diet; which alone has the power of imparting validity to it. The kings of England conclude treaties of peace and alliance, but by these treaties they cannot alienate any of the possessions of the crown, without the consent of parliament, neither can they, without the concurrence of the same body, raise any money in the kingdom. Therefore, when they negociate any treaty of subsidies, it is their constant rule to communicate the treaty to parliament, that they may be certain of its concurrence, to make good such agreement.”

If therefore of two constructions, the one be against the fundamental law, and the other consisdent with it; that which is repugnant to the fundamental law, must be abandoned, and the other received; otherwise the treaty itself must be abandoned. And the construction contended for here, seems to be against our constitution.

1. The General Assembly have no power, but what is given to them by the people, declared in the constitution. In limiting this power, they have said, that no man shall be deprived of his property, but by the law of the land.” Bill of Rights, § 12,

*402. From, the nature of a debt, being a thing which becomes obligatory only by the expressed consent of the individual to be charged you cannot say that a man shall be a debtor and pay the debt, who is not a debtor.

3. By the law of nature, the legislature is under an obligation to perform what it has promised; and the person promised, has a right to that performance therefore it has no right to make void, what it has engaged to support. And we have already seen, that it has engaged to support the payment, here pleaded as an extinguishment of the debt. Can the legislature now, after the debt is extinguished upon its own principle, pass a law to revive that debt, nullify the obligation of its promise, upon the faith of which the debtor has parted with his money? That it has no such right might be proved, and the impropriety of exercising it, made evident, by stating to your Honours, the numberless instances of the most horrid injustice and hardship, that it would be productive of but I conceive it to be too plain to admit of doubt, and therefore I shall take it for granted, that such a right does not exist in the legislature; and if so, much less was it in congress or their commissioners. Congress was a mere executive body; possessing no other powers, but such as are generally executed by the executive branch of a government. This is the light in which the commissioners viewed it, as I have before shewn; this is the light in which the British government viewed it, as I have also before shown and it is further manifested by their long detention of the Western Posts, because those acts of Assembly, which opposed the operation of the 4th article of the treaty, were not repealed. This is the light in which congress uniformly viewed it, when they required of the states, at different periods, to repeal those laws which opposed the treaty. And this is the light, in which I conceive every candid mind must view it, when he deliberately examines and considers the articles of confederation. As to the 6th article of the constitution of the United States, it surely never intended to give greater efficacy to the treaty, than it had before. What reason was there, for making it, more binding on the states under the new government. than it was under the old? We had received no new consideration from the other party, for such an extension of the obligation on our part would it have been suspected at the time the constitution was adopted in our state, that it would have this operation; that single article would have raised from every quarter the most insurmountable obstacles to its adoption the fail is, this article was inserted as one of course, to put the treaties that had been made under the old government in statu quo. For without such an article, it would have been very questionable, how far those treaties would be binding upon us, under the new government. And as to the act of Assembly of 1787, making the treaty the law. of the land; I have always understood, that this act was passed in conformity to a requisition of congress, to afford a proper pretext for demanding a *41surrender of the Western Posts, which were withheld on the presence that the treaty had not become the law of the land; not having been ratified by the several state legislatures, but that it by no pleas was intended to extend the length contended for, by the plaintiffs. Had that been the intention of the legislature, can it be doubted but that something more would have been expressed in the act as to that part of the treaty, at least, which is recommendatory only; it would have been necessary, I humbly conceive, to have framed a law entirely different from that which passed, both as to the title and substance of it; and this the journals of that Assembly shew us was attempted, (not that I know or believe that it was the with of a single member) but it does appear that the first bill introduced on the subject, was entitled, “ a bill to repeal such laws as militate against the treaty of peace made with Great-Britain,” p. of the Senate Journals, and 9 and 17 of the Commons. This bill seems was dropt after one or two readings, and the other was afterwards brought in and passed; which sufficiently shows the intention the Assembly, and which has been further manifested, at various, times since, by their proceeding further to carry the confiscations into effect, and to bring suits under them; one of which is now depending in Newbern superior court. But, in fact this act would not be a repeal of the confiscation laws only in such cases where the treaty contains an absolute stipulation; and that I have attempt to show, was not intended in the case of the present plaintiffs; or as to them, it was only recommendatory; and I rest satisfied, at this act making the treaty the law of the land, has done nothing for them. But suppose it should be considered as a repeal, it cannot be extended to the re-obligation of the defendant. For 1. A subsequent law repugnant to the former, cannot be so construed as to do away a right lawfully acquired, under the former law in of this, I shall read 2 Bacon, 75, the substance of a case rerted in 2 Mod. 310, determined upon the statute of frauds and injuries in England, that the clause which enacts that no action shall be brought, &c. to charge an executor, &c. extends not to promises made before, tho’ to be performed after, the making of the statute; for it would be against natural justice, that a promise made upon good consideration, would be destroyed by the retropect of a law, which none could divine would be made.’

2. It has been always held that every thing which was done under a law whilst it was in force, was valid altho’ the law should be afterwards repealed, 4 Bacon, 638. 'If a statute be repealed, all acts done under it, whilst it was in force, are good.' Jenk. Cent. 3 Pl. 6. Then, here is at once an insurmountable objection to plaintiffs’ recovery. It is admitted that the state had the right confiscate and direct the payment of the debt into the treasury the money is paid in accordingly, before the repeal takes place; is payment then was something done under the law of confiscation *42whilst it was in force, and is valid agreeably to the principle which I have established; therefore the cannot affect it.

3. If the statute of repeal is against common right and reason, it is void. 4 Bacon, 635. 8 Rep. 118. This repeal, if it is one in reality, is surely against common right and reason. When the debt or paid his money to the state, it was in consequence of the legislature declaring to him that he should be discharged from paying: gain to the plaintiffs; and relying on that, he makes the payment and has a right to the discharge; for it is admitted that the legislature was competent to pass a law of this kind, transferring the right receive the debt to the state, and if so, the payment was as got as if it had been made to the plaintiffs themselves: and it would be equally unjust to make the defendant pay it again. If he is compelled to do so, it may much distress him now, when the sum is very considerably increased by the accumulation of interest and costs. therefore do conceive, that on this principle also the plaintiffs ought to be barred of a recovery; and upon the grounds, as I have occu pied so much of the time of the court, I will submit my client’s case to the consideration of your Honours: as to you any recapitulation them might appear to be more tedious than necessary.

Davie, contra.

IT is acknowledged that the bond in question represents a debt bona fide contracted before the ratification of to treaty of peace; that the defendant is a citizen of the United State and that the plaintiffs are subjects of the king of Great-Britain.

The obligation of contracts is not only founded on moral principles, but that necessity of individual confidence, to essential to the well being of man, and indispensable to the existence of human society. Thus, one of the first objects of government in every country has been to establish some civil or judicial mode of deciding of controversies, and enforcing the performance of contracts. So that, between individuals of the same community, the moral, is scarce distinguishable from the legal, obligation; and the collected power of the society immediately follows to enforce it.

By the law of nations, contracts between individuals of different communities shall meet with no legal impediment to their execution time of peace, and shall have the benefit of the constituted authorities of those communities to enforce them; and it is consider at present, as a maxim uncontroverted, that a war of itself does extinguish the rights, or dissolve the obligations, which existed before the commencement of it, between members of the different bellirent societies; although, during the continuance of the war, rights of bringing suit is suspended. Thus, if this case stood us the common or general ground, there would certainly be no objection to the recovery of the plaintiffs, raised upon the relation of parties or the intervention of a war.

But, to this action the defendant has pleaded four several p of bar, grounded upon the confiscation laws of this state.

*431. A payment to the commissioners, under the act of October 1779, with their receipt and discharge.

2. The act of November 1777, and the two first sections of the of Assembly of 1779; alledging that thereby the debt was confiscated, and absolutely forfeited to the state of North-Carolina.

3. The third plea rests on the fourteenth section of the act of October 1779; alledging that the plaintiffs refused to take the oath of allegiance, and were compelled to leave the state by virtue of the acts of 1777; and that they had not appointed any lawful attornies or agents &c. to receive and give discharges for debts; that therefore, &c.

4. The fourth plea is in substance the same with the second, though in a different form.

To these pleas the plaintiffs have replied, the act of Assembly of April 1777; averring that they were then, and had been from their respective nativities, subjects of the king of Great-Britain, and that were at that time merchants within the meaning of said act, and that they departed out of the date, in conformity to the said act of Assembly. To this is also added the fourth article of the treaty of 1783; saying that they were creditors on the side of his Britannic Majesty; and therefore &c.

Although the case made in the pleadings appears to be generally that of an open and solemn war between two independent nations, yet I admit that the following important facts also appear, and that recourse must be had to them as the key of explanation to the confiscation laws, viz. that the colonies, now United State’s, were formerly a part of the British Empire. That they, being disgusted with e government, remonstrated to the common sovereign on the conduct of the British Parliament; that their injuries remained unredressed, and Great-Britain proceeded to enforce her usurpations by arms; and these measures produced defensive operations on the part of America, until the fourth of July 1776, when congress tho't proper to declare the colonies free and independent states. This again produced a new order of things. The states immediately proceeded to form constitutions, and afterwards to enact laws. The commercial and political dependence of the colonies upon Great-Britain, as the mother country, had connected the interests of numbers with the old government; these of course had determined to remain under it, and the fourth of July became the epoch of discrimination. As these people had interest, by which they might naturally be influenced, so they had rights which were not to be violated. There could be no question on principle, as to the right of remaining under the old government; the great question was the right of change. Such was the state of things, when North-Carolina began to legislate on the subject of confiscation.

The whole case may be safely considered as reduced to two general heads.

1. Whether the debt in question, is within the purview and operation of the confiscation laws?

*442. If this debt is within the operation of those laws, whether the pleas of the defendant are among the impediments removed by the treaty of peace?

In order to form a satisfactory judgment on the first point, it will be necessary to take a general view of the system of the confiscation laws; that their policy and relation may be properly understood; so that, when those pleas come to be considered on detached parts of the acts, we may be furnished with some rule of construction, which being formed from the whole law, will equally apply to all its parts. I shall pursue this part of the enquiry with a pleasure derived, not only from the discharge of my duty as a lawyer, but from the hope that I shall be able to show, that even amidst the conflict of political opinions, and the violence of a revolutionary war, the legislature of this country acted with dignified moderation, and an inviolable attachment to the principles of natural justice.

The first legislative act on this subject, passed April 1777*, the 5th, 6th, 7th, 8th sections respect the present question, (they were read.) The parts of the act arose out of the peculiar circumstances this country, and were dictated by the wisest policy, and are perfectly conformable to the principles of natural law. The writers on this subject say,† that a nation has a right to form, and to perfect its constitution; that it may reform its government, and even change its constitution; but the rights of the dissenting citizens are reserved to them, “viz. to retire elsewhere, to sell their lands, and take with them effects."

1. The court will observe that by the act of Assembly, persons of the description of the plaintiffs have their election to remain as members of the new state, or retire into the bosom of the old government.

2. They may dispose of their estates.

3. They may export the amount of it in produce.

4. They may appoint attornies to sell, after their departure, &c.

These form the outlines of the terms of the separation; and may be considered as a full expression of the mind of the sovereign power; but neither the debts created before, nor even by those sales are within the purview of the act.

The debts are not mentioned; much less are they required to collect them before their departure, &c.

All compulsory collection was impracticable. No courts existed to enforce the demand of the creditor, &c.

The legislature met again the same year, and in November, passed another act,‡ nearly to the same effect.

The clauses remarked upon in the act of April 1777, are re-enacted in toto with the addition of section 9th, imposing certain disabilities on persons suffered to remain in the state, and enacting a new discrimination between those who departed within the time allowed and those who remained after that time: the latter could *45not depart without leave of the executive, under the severe penalty of confiscation. The penalty was not inflicted for departure, but departure without permission.

The 7th and 10th sections, repeal the penalties for returning.

The proviso of the 6th section, is again a solemn recognition of the law of nations, and the immutable principles of justice.

Here the same remarks recur, which have been already made on he same sections in the act of April 1777; and let it be noted, that the right to sell is expressly to the parties, and their attornies after their departure, that this admits a subsisting debt, either due by the vendee or the agent. That old or previous debts are not mentioned, that the attornies are neither authorized nor required to collect the debts; that as the debts are neither mentioned nor contemplated, no time was fixed for their collection.

It was before mentioned, no courts existed. Courts were now ejected, but those persons and their agents were excluded from the benefit of those courts, as will appear by the worst of the court law.† The next act,‡ in order, on this subject, was passed the same session, this act has been emphatically stiled in subsequent acts, the "confiscation act,” it is indeed the basis of all the subsequent confiscation laws. (Here the law was read.)

It may be remarked, that the descriptions contained in the preamble, do not include the case of those compelled to remove under the laws of the state. The expressions, “withdrawn to attach,” “withdrawn to avoid, &c. “beyond the bounds, at the beginning, &c.” are not intended to include them.

The reasons stated in the latter part of the preamble shew clearly that those persons were not contemplated.

The enacting clause, § 2, makes alike distinction between withdrawing voluntarily, and a compulsory departure, that is to say, the case of merchants expressly called upon, and that of a common citizen or subject, independent of the several cases expressly made, which are those of a voluntary withdrawing or absence; the provisionary clause of the same section, requiring them to appear at the next Assembly, proves beyond dispute, the meaning and extent of the law. Not availing themselves of this means of restoration, was to be the ground and criterion of confiscation.

This shews the whole aspect of the act, and limits the sphere of its separation.

The fourth section makes them and their case an express exception the act. This act was not necessary, to complete both justice and policy, with regard to them: all real estates unsold after three months, was to be considered as confiscated and forfeited to the state. The debts as I have shown, were not contemplated.

This act evidently intended to include all those cases which not had been acted upon by former and existing statutes.

While this act forms the basis, it also furnishes a rule of *46explanation to all the subsequent acts; as will appear, not only by established rules of construction, but the plain tenor of those laws.

The next act,* which operated upon confiscated property, by being acted upon, passed in October 1779, and is the act alluded to in the second and third pleas of the defendant. The court will observe, on the reading of this act, that it has proceeded on the acts of April 1777, and the act of November 1777, chapter 17, clearly distinguishing the two cases I have stated to the court. (Here the 1st, 2d, and 3d sections were read.)

The fourteenth section is intended to operate on the case of the persons who separated from the new community, under the acts of April 1777. (Here the law was read.)

The preamble shows the purview and intended operation of the 2d and 3d sections, clearly limitting them to the objects of the act, chapter 17, November 1777.

It is a rule of law that all acts or statutes, relating to the same subject, are to be construed as one act, and a consistent construction if possible, given to every part of them. Thus the whole confiscation a laws must be considered as one legislative act, making one confident system.

The construction authorized by this rule, and the only consistent construction that can be given to this part of the act, I take to be this: that the real estates of those persons the therein named, who had been compelled to leave the state, under the acts of 1777, and which they had neglected to sell, should be sold with those confiscated, under the act of November; and that their being named here, should operate as an office found, as to those lands formerly owned by these persons,

It does not include their debts, because the state had required them sell and depart.

It could not proceed on their adherence to the old the government, because they had made it high *reason to return to the new state.

Thus, a compliance with the act of was impossible-and the case of debts, if will be observed, is intended to be provided for in the fourteenth section.

The real states unsold were already confiscated something in the nature of an office was all that remained necessary.

It follows then, by fair and legal inference, that where the word occur, it must be supposed to refer to persons under different descriptions, of which there were many named in the act.

The fourteenth section† has taken for its basis, the provides of the expulsion acts, as they are usually called of 1777: and assigns, two causes of confiscation, former act, viz.

1. Not disposing of their real estates.

2. Not appointing any attornies to collect their debts, &c.

The first is perfectly consistent with the provides in both acts of Assembly.

*47The other is evidently founded on mistake. The act gives them leave to appoint attornies to fell and dispose of their estates, but not a word is said about receiving and giving discharges for debts-the following, or latter part of the provisional clauses, saying that if any real state shall remain unfold, “the same shall be forfeited, &c,” shews clearly the reason and object of appointing these a ents; and they were only allowed three months after the departure of the principal to sell lands.

The enacting clause is expressly limitted by the purview of the proviso it recites; the legal and true construction of it must follow the object and tenor of the act of 1777, and the rights secured under the provifo, are facred from the operation of this clause.

Let me only add, that the 20th section† promises an indemnity. The legislature certainly had in view, the possibility of its being otherwise settled by treaty.

These are, the several acts of Assembly, relied upon by the defendant; we will now consider the first plea, on case made in the pleadings, independent of the treaty of peace.

I. It will be recollected, that the plaintiffs were persons within the year letter of the act of April 1777, being “merchants who then traded, and had traded &c.” Sound policy and the safety of the state, required that these people should be separated from us; and the principles of natural justice required also, that although they might be personally inconvenienced, their natural rights should not be violated.

The proviso contained in the 6th section, is a solemn recogntion of the principles of natural law,‡ and this act of national justice reflects the highest honor upon the legislature of this country.

As soon as these people made their election, and figured their intention to remain under the old government, by refusing to take the oath of allegiance prescribed by the acts of 1777, they became immediately aliens to the new government, and their real estates were subjected instanter to all the consequences of alienage. In order to prevent this mischief, which would have been attended with such glaring injustice, agreeably to the principles laid down by Vattel, their personal rights were respected by the legislature, they are authorized to sell, &c. &c. that is the right of citizenship, is pro hac vice continued. They have liberty to escort the whole amount in produce, (naval stores excepted.) This very justly assumes the appearance of liberality and moderation, while the measure was dictated by the wisest policy. The exportation of money or specie might have been a ferious injury, before the extent of paper credit was known; the other mode, in many instances, enabled our citizens to pay for their purchases, while it furnished a market for their produce, which had already accumulated on the hands of the planter, and threatened him with an entire loss.

It may be important to mention here, the motive which doubly *48influenced the legislature to be entirely silent on the subject of debts. The effects of the war were already felt; the citizen would not have been in a condition to pay-and even a partial collection must have drained the country of all the specie it possessed. It is but a justice due, however, to the legislature, to show that this regulation was extremely beneficial to the merchant. Money must have been raised with difficulty, in so short a period, the exportation of produce was in the line of his business, and might enable him to fulfil his foreign engagements; the case of the merchant appears to have been particularly considered, and those mischiefs, naturally that consequence of political revolution, and to destructive to trade, and so distressing to this useful description of men, were averted and alleviated as much as possible.

In this analysis of the clause, the collection of their debts is never brought into view, nor does the expression, or any thing tantamount occur. The words “and after satisfying all just demands," “to export the amount &c.” evidently relate to the sales of their estates, and is to be considered in the light I have already stated it, as an act of policy and justice; nor will they be considered as obliged to export the whole amount, although that priviledge was granted.

This construction, in addition to the weight it acquires, from being consistent with reason and natural justice, on which the Assembly appears to have acted, is warranted by the whole latter part of the

clause, “if any real estate should remain unfold &c.” This operated by way of penalty in this instance, and is a full expression of the legislative mind; and the penal part of the act will not, on any principle, be carried beyond the letter, or what is much stronger, the particular case stated by the legislature itself.

These observations are made to show the true ground on which these people flood, and their rights, as recognized by the legislature, and sovereignty of this country.

The result is, they departed with all the rights of alien enemies, according to the laws of nations, with the following additional rights and privileges.

Their persons were protected from military arrest, during their stay.

Their property from capture on exportation.

Their real estates from escheats, by the privilege of sale.

Their personal estates to be managed by their attornies or agents, and under the implied protection of the government.

Their debts not being mentioned, may be considered as untouched, and are clearly included under the situation of their personal state.

It remains now to be shewn, that the debts of persons thus situated, are not within the purview of those sections of the act of October 1779*, relied upon in this plea. (Here the clauses were read.)

*491. It has been observed, that the first part of this act, that is here clauses, have taken for their ground, the act of November 1777, chapter 17.*

2. That the descriptions, mentioned in the preamble and enacting clause, do not include the case of persons compelled to depart the act of April.

3. That this law evidently operated only on those cases which had not been before acted upon.

4. That these persons are expressly excepted from the benefit of that act, and of course from its penalties which were made the express consequence of non compliance: and this was the case, whether they removed themselves, or were removed by the compulsory auhority of the magistracy.

The clauses of the act immediately under consideration, expressy refer to the act, chapter 17, and are built upon it. They are therefore, by every rule of law to be considered together as one act. That the only consistent, and of course legal, construction that can be put upon the 2d and 3d sections, as they may regard the plaintiffs, is the construction I before submitted to the court, viz, that they operated as an office found as to the real estate unsold. That where the words debts or monies occur, they must refer to the cases of persons differently situated.

Again, the fourteenth section expressly contemplates the debts and case of the plaintiffs, which shews that the legislature considered them as two district subjects or cases, and that the plaintiffs were not within the purview of the 3d and 5th clauses.

However general the expressions may be, it is clear they cannot over the case of the plaintiffs, while the act of November forms he rule of construction, and a rational consistency is required in the several parts of the same act. To argue otherwise, would be to turn the acts of 1777, those acts of justice and beneficence, into a snare to these people, and to attribute to the legislature, a species of speculative policy, equally unworthy and unmerited; while they themselves were asserting the rights of man, and solemnly avowing their reverence for the principles of natural justice.

II. If however, this point should be adjudged against the plaintiffs, not remains to be considered, whether the payment made to the public commissioners is not among the impediments removed by the treaty of peace.

Before we enter upon the examination of this part of the case, it may be proper to consider some general objections made by the counsel for the defendant, to the authority of the treaty. It is alledged that congress were a mere executive body, a fort of council who could only recommend; that the articles of confederation conferred no absolute powers, and that the validity of the treaty depended upon the sanction of the individual states. It follows from the very nature of a *50confederacy, which is formed by an association of sovereignties that there must be a certain distribution of the sovereign power, between the constituent states and the confederacy. Thus the individual states retain those portions of sovereignty, which are necessary for their internal government and police; and congress became the exclusive deposit of those powers, which were necessary for the preservation of the Union, their common defence, and the regulation of their affairs with other nations; and it will clearly appeal by the instrument itself, that the power of making treaties was exclusively lodged in the congress of the United states. By the article, each state retains every power, jurisdiction and right which is not, by this confederation, expressly delegated to the United State in congress assembled, and by the 9th article, the congress of the United States in congress attempted, have the sole and exclusive right and power of determining on peace and war, offending and receiving ambassadors, and of entering into treaties and alliances. Congress then had the sole and exclusive power of making this treaty on the part of the United States; and were alone competent to this act of sovereignty: no power of this kind remained with the states. From what data is it then inferred, that treaties of this kind depended upon the sanction of the states, for their legal validity: The means of carrying treaties into effect, it is true, remained in many instances, at that time with the states. Congress had full power to make such contracts, but they had not the same degree of power over the means of execution. Thus in 1787, there existed no federal judiciary, and the comparative authority of laws and treaties depended upon the sense or judgment of the state courts: and hence resulted the necessity of those repeated applications from congress to the states, requiring them to carry the treaty into complete effect which had then become the supreme and positive law of the land.

It is also contended, that if congress had power to bind the state by a treaty as to some things, it was acknowledged and understood by them and their agents, that they had no power to repeal or otherwise affect the confiscation laws: and Mr. Baker relied upon some resolutions of congress, the journals and correspondence of the negociators, and the opinion of members of the British parliament as satisfactory evidence of their assertion. It would perhaps be sufficient answer to all this, to say, that these documents relate to the object of the 5th article, which, as will be shewn presently never contemplated debts. But without drawing into question such evidence as the progress of a negotiation, where simulation and secrecy must act a considerable part, I beg leave at once to oppose, to all this, the letter addressed by Congress, to the state in April 1787, in which they declared and demonstrated that Congress alone possessed the right, not only of making, but of intrepreting, restraining, or counteracting the operation or execution of treaties “which on being constitutionally made, became by the confederation, a part of the law of the land, and as such, independent *51the will and power of the legislatures."

To this, the court will permit me to add the opinion of Mr. Jefferson. “It results,” say he†, “from the instrument of confederation, among the states, that treaties made by congress, according to the confederation, are superior to the laws of the states.” This is not offered as an authority by which the court are positively bound, but but as the opinion of a respectable civilian, delivered upon an occasion of great importance, and where the present question was directly under consideration; and this opinion he asserts, was support by the general sense of the states, and of those gentlemen who were of the profession of the law.

Whatever doubts may have been entertained by some men, respectable for their learning and talents, whether the treaty could have been executed by the vigour of its own authority, it appears to be generally admitted, that by the instrument of confederation along the states, the treaties made according to that confederation, became superior to the laws of the individual states.

Treaties derive their authority as law, from being the act of the sovereign power. The safety and prosperity of the nation are involved in this high act of sovereignty, and thus from necessity, treaties have always been considered as paramount to ordinary laws. Every community possessing sovereign power, may enact laws to bind is own members, but rightfully they have no authority to bind others. Thus treaties acquire their authority from the joint assent of the sovereign power of those nations making such treaties, and to the citizens or subjects of those nations, they become positive law," law of the most sacred obligation, and of the highest importance to the tranquility, the happiness and security of the human race. Vattel, p. 11, 12, sections 24, 27, Vattel, 2, b. c. 12 & 163, Burl. vol. c. 9, & 6, ibid, c. 14, & 3.

Thus, a treaty partakes both of the supremacy of a law, and the obligation of a contract. The act of Assembly mentioned in the pleadings, and the constitution of the United States have left no doubt the subject of the treaty being now the supreme law of the land.

It is upon this double ground of its supremacy as a law, and its operation as a compact, I contend, that all acts of the state and its own members, with respect to debts of this description, were not only repealed, but even to be considered as a nullity, and as if they ever had existed, with respect to the creditor.

The words of the 4th ‡article of the treaty, are, “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.”

This article, the counsel opposed to me has thought proper to consider, in two points of view, viz. as standing alone, and 2dly, is connected with the 5th and 6th articles. And it is alledged, that the true operation of this article depends upon the found cons*52truction of word "creditor,” which is said should be confined to the creditor of such debts as were due at the time of making the treaty. The word creditor is indeed a relative term, and must suppose an existing debt. Those debts of which a person would be a creditor under the treaty, received however, a precise and definite description, by the latter part of the article, in the words “all bona fide debts heretofore contracted.” If the article had been drawn

up in the words mentioned by the attorney general, doubts might have arisen with regard to the effect of confiscation, or sequestration on and payment. But the phraseology adopted by the commissioners has excluded all doubt, the sole designation being the creditor of a of debt heretofore bona fide contracted.

It has also been observed, “that the words legal impediment, should be restricted to disabilities to sue, the right of bringing suit, not the right of recovery," this is an unfortunate critism, as the very tenor of the article imports the recovery of the full value in sterling money, and embraces immediately the right of recovery, and the attainment of substantial satisfaction, for all debts bona fide contracted. The law of Nations restored the right of suit, and the treaty expressly gives the right of recovery, notwitstanding any impediments enacted during the war.

To illustrate the construction imposed by Mr. Baker, he infers that the words “either side” mean on one side, creditors resident in Great-Britain at the commencement of the war. There is certainly nothing connected with the expression that will warrant such an inference. The phrase creditors on “either side,” appears to have been selected, because it drew a plain and clear line, between the creditor and debtor, contemplated by the treaty. All distinctions of British subjects taken from their residence, are blended in the common designation of a creditor, on the side of his Britannic Majesty. It is no longer a question, whether the creditor resided in Europe or the West-Indies, or in the districts in the possession of his Majesty’s arms in America. Some reliance is also placed upon the words “sterling money,” as evidence that the debts contemplated, were such as were due to merchants or others, resident in Great-Britain, that the debts now in question, is proclamation money. This objection is easily answered, the colonies had emitted paper money of different denominations, and proclamation money had no particular value, but the current rate of exchange. The United States had issued paper money which had depreciated to nothing: hence it became necessary to have reference to some established standard of value, to avoid e misfortune of mere nominal recoveries, in the paper money of the states.

These remarks were concluded by an assertion that the article was vague and uncertain, and that its application to any case should therefore be attended with great caution. As this was not shewn, I can only answer, that it appears to me, the terms used in this article are the most comprehensive and unequivocal that could possibly *53be adopted, both the contracting parties appear to have been defirous to exclude all ambiguity, and the possibility of misconstruction: “all debts heretofore contracted,” avoids all distinction that might create disputes and intangle justice, and entirely excludes every enquiry relative to confiscation or forfeiture in any form or shape whatever, the sole description being that of “bona fide debts heretofore contracted.”

Thus, therefore this article operates equal on all contracts which had originated before that time, and all the impediments to their recovery, which had arisen out of the war; there is no exception as to the nature of those impediments, whether they depended upon the act of the state itself, as a mere act of confiscation, or upon the state and one of its members, as a payment with a receipt and discharge; and when an act, says Vattel, * “is conceived in clear and precise terms, there can be no reason to refuse the sense which the treaty naturally presents.”

Some rules of interpretation have been applied to this article, which I will take proper notice of, while I examine this article, by those maxims laid down by the most eminent writers. But I hope this will not be taken as an admission, that there is any thing doubtful or equivocal in the text, or that the court are at liberty to depart from the rule last mentioned.

The impediments contemplated by the treaty varied in the different states, and even in the same state. Some cases were only acts of sequestration, in their mere declarations of confiscation, in some they amounted to confiscation and collection or payment. This latter impediment existed in the principal debtor states, the payment which had been made to the public was merely nominal, and if it had been otherwise, the creditor had no certain relief against the states; these circumstances must have been known and considered by the commissioners, indeed they had every reason to believe that this would be

the principal existing impediment in Virginia and this state. Is there any reasonable ground to infer that this impediment, the most prominent feature in the group, should have passed unnnoticed, and considered as an exception? If, says the same author†, "there is an obscurity, we should seek for what was probably in the thoughts of those who drew it up, and interpret it accordingly."

It is also objected, that the state stood as assignee of the creditor, that the payment to the state, was as good as to the original creditor, and the debt being so paid is extinguished, and there was neither debt, debtor nor creditor at the time of making the treaty.” This jingle of words imposes for a moment, on the ear; but when examined, is found to be no more than a conclusion drawn from premises neither proved nor granted. If the state had really been the assignee of the original creditor, a payment to her would certainly have been good against my clients: but the only assumes the authority to receive without the consent of the obligee, and a payment to her is no more *54than a payment to an officious stranger, which depends for its validity on the subsequent assent of the creditor; it may be said that this assumption of power to collect debts, is among the rights of war. To which I answer, that the rights of war, when exercised, always depend as to their final validity, on the state of things as settled by the treaty of peace. Thus perhaps, if the debts had never been mentioned, and certainly, if those payments had been sanctioned by the treaty, as in the cases which arose of the treaty between England and Denmark, anno -, as appears by the cases of Weymburg against Touch, 21 Car. 2, in Canc. and Trower against Haffold, 1 Ca. in Ch. 173, the payment would eventually have been sustained in this court as a legal payment: but when the contrary is expressly stipulated, the payment becomes of no validity, and it follows of course, that there is now both debt, debtor and creditor. It appears from the authorities I have read and the nature and obligation of treaties, that the commissioners of America had power to bind the nation collectively and individually. The payment under the act of Assembly, was a transaction between the state and one of its own members, that is to say, between the defendant and the defendant, represented in a moral capacity, who, as to this question, should be considered at one person. That in the treaty, the state and its member hold this honest language: we agree there should be no lawful impediment, or in plain language, the manner of payment and discharge we had fixed upon, during the war, without your consent, shall be considered as a nullity, whatever form if may assume. Thus the treaty works not only as a repealing law, operating a repeal eo tempore of all existing laws to the contrary; but by way of compact also, wherein one of the contracting parties does agree, that the things done under those laws should be considered as void; or in the language of the treaty, "no impediment.” The result is no more than this: the state remains under a moral obligation to reimburse the citizen, as it expressly agreed by the law of 1779, what it really received; and the individual is in statu quo with respect to his creditors. Treaties are considered as the voice of necessity: the state and its member admit the payment was originally more matter of form that substance; a mere family accommodation, which could be easily again adjusted in the same manner. Trifling circumstances, like these, would never be seriously opposed to the obligations of private faith, the claims of natural justice, and the peace and safety of the United States.

It is objected that this construction involves a sacrifice of private rights: and, therefore this construction should not be extended to include this case. Let it be observed that the construction we contend for, is not what is understood as the extensive, that it is the natural and common, import of the words* with regard to a natural and necessary object: it is not bringing an expected case within the mere meaning of the contract, it is not a reliance upon any thing so *55uncertain and evanescent as the spirit of the article, which may depend entirely upon the ideas of the commentator of the meaning of the enactor: we rely on the plain and common import of the words. Let it also be remembered, that these rights, if they may be so termed, were certain rights acquired by the war, and therefore properly the subject of treaty. That the real rights of individuals, properly acquired, may be sacrified by the public on such occasions, is testified by numerous examples and authorities. And as this sacrifice was merely nominal as to the American citizen, should he never be reimbursed agreeable to public faith, it is not to be presumed that this matter was considered by the commissioners as a thing of any consequence, or an exception. On what ground of justice could they make an exception of it? It must also be remembered, that this was a part of the price of peace, and the independence of America. No humiliating terms. It is only in affirmation of the law of nature, and of nations, that individuals should honestly pay their debts, that the inconvenience of wars should cease with them, and that both governments should mutually contribute to the establishment of justice and moral order.

And again if, in general, the rules of construction of treaties, confine the expression, used by the parties, to the object meant to be acted upon; then in treaties of peace, the war, and the affairs and transactions arising out of it, are the natural and certain objects upon which the treaty is intended to operate, unless the contrary clearly and expressly appears; then from the rule it must follow that impediments created during the war must have been the peculiar and immediate objects of this article*. This is according to the rule “giving the expressions the sense most suitable to the subject.”

Another ground taken by the counsel for the defendant, was this: "that at most the treaty was a mere repeal of the existing laws, that it could not effect the payment, that being already done under the law, was certainly valid.” The doctrine that a simple repeal of a a law does not nullify the acts done in consequence and by virtue of the act is admitted: but the court will recollect, that I rely not alone on the supremacy of the treaty as a law, but upon its operation as a compact, the nature of which I have already illustrated. I suppose it was intended to be inferred from the remainder of this objection, and the observations made upon it, that this clause would be satisfied by limitting its operation to any impediment arising from any law then in being, or hereafter to be passed to the prejudice of the creditor’s right. This is giving the objection its whole force, and perhaps more than was intended.

It is answered, that obstacles existing, not those which might probably exist hereafter, acts of war and violence, not of policy and peace, are the subjects upon which this article is to operate. It is not to be fairly inferred that they would pass over an existing mischief or impediment, to provide against a possible or eventual one; *56that they would, sedulously insert an article to nullify acts of the legislature, which were thenceforward at all events to be a dead letter. To repeal a law which not only already had its itself, and was by the general operation of the treaty, arrested as to all future operation, instead of doing away the impediment it had produced; to a matter past, instead of a thing existing; to a thing of no consequence, abstracted from the effect it had produced, and leaving that effect to exist, in all its vigour and consequences. This interpretation, drawn from the natural connection and relation of things and existing circumstances, forces itself irresistably upon the mind, and is agreeable to the most approved authorities.*

It is also asserted, that this construction of the article is contrary to the maxim contained in Vattel, § 305: as it would change the present state of things. That enlightened writer there says, that “in case of a doubt, the presumption is in favour of the possession,” but here, may it please your Honors, is no doubt, a clear precise and express stipulation. In the same section it is stated, “that the case of him who seeks to avoid a loss, is more favourable than that of him who desires to acquire a gain!” the case of my clients might rest on these lines alone. Shall the plaintiffs loss a debt bona fide contracted for which the defendant had real value, or shall the defendant gain the advantage of discharging that debt, by the nominal process of paying it to the public in depreciated dollar bills ?

If the leading object in treaties of peace, is to heal the wounds inflicted by the wars, and where it is practicable not only to effectuate justice, but to restore things to their ancient order, and the former conditions of peace; then it must have been an important object with the plenipotentiaries to place individuals in state quo with regard to each other; to put the attainment of justice in the power of the creditor; and to restore private confidence to essential to the happiness of mankind, and the prosperity of an infant country like the United States.

The writer to which I have so often referred, also says, that “as soon as we know certainly, the reason which has determined the will of him who speaks, we ought so to interpret his words, as to apply them in a manner suitable to that reason,” Now the reason in this case is evident, the Americans were largely indebted, particularly in Virginia and this state to the British merchants: the states had attempted to confiscate and collect those debts, even in money depreciated to nothing. Justice was to be done to the bona fide creditor, and this was completely effected by removing those impediments which had a arisen by the interference of the state, during the war: and this rule goes the full length of the present case.

An authority has been produced to shew that a statute against right and reason is void. And it is alledged that the treaty must operate this injustice: and it is against right and reason, that a man should pay twice, with interest and costs. There is nothing either *57unreasonable or unjust in the present case. The creditor trusts upon the reasonable expectation of being fully and punctually paid; and very honest man deems it mere justice to pay his debts; therefore between the creditor and debtor, this is surely “light and reason,”

As to the payment made to the public.

The state foresaw that this debt might become the subject of treaty or negociation, in which the right of the creditor would be saved, and expressly engaged by the 20th section of the act of 1779,* to reimburse the debtor. Take this act and the treaty of peace together, consider them as one act: the result is, if you will pay these debts into our treasury, if by the treaty of peace, you should be obliged to pay them to your creditor, we will indemnity you; and thus complete justice is done to all parties.

An objection is also stated on the authority of Vatt. p. 651, § 32, alledging, “that Great-Britain, must have been the proposer or this article, being for her benefit, and the terms upon which she granted our independence.” It should be observed, that these observations are not perfectly correct: the article itself is mutual, and

may be said to move from both; and made for the benefit of “creditors on either side.” But the authority is this, that in case of doubt, the interpretation goes against him, who gave law in the treaty. If the documents, adduced by the Attorney General, on Saturday, are entitled to credit, then, the United States, not

Great-Britain, gave the law on making of the treaty, and the interpretation of course should be against the citizens of the United

States upon his own doctrine. But the fact is, that either, when plaintiff has the right to claim the full benefit of this article, for

at is mutual: and it is a maxim of the common law, as well as common sense, that the words of a grant shall be construed most stronger against the grantor, and that a promise shall be construed in that sense, which the promisor had reason to believe it was received.

Thus America may be conceived to have said: relinquish all claim the sovereignty of the United States, and acknowledge our independence; we ask no more, all debts shall be honestly paid; we contending for the establishment of our political rights, not for the destruction of moral obligations.

It is also a maxim in the construction of treaties,† “that if he, who can and ought to explain himself, has not done it, it is his own ofs, he cannot be allowed to introduce subsequent restrictions, which he has not expressed.” Although this article is obligatory on both sides, this promise was known to proceed from the side of America, of her commissioners intended to make this case an exception, why did they not say, provided this article shall not extend to payments of this kind: the import of the words is general, and as I have shewn, plainly covered every case. If this was to be an exception, the necessity of its being exprerred, was glaring and evident; it was *58therefore certainly necessary; otherwise in the language of Vattel, "there can be no cure convention, no firm and solid concession; if they may be rendered vain by subsequent unmentioned limitations.”*

On every occasion where a person has, and ought to have shewn his intentions; it is a rule that we must take that for true against him which he has sufficiently declared. I have already submitted my observations on the plain and natural import of the words: they certainly contain a sufficient declaration of the intention of the contracting parties.

There are some common law rules, which will also apply to this case. There, that construction is always sustained, which insures the greatest simplicity and certainty; and that construction is always rejected, which would be predicated upon indefinite and undiscribed wrongs. Thus when one party gives a general warranty; the common law will not extend the warranty to make the warrantor answerable for illegal claims, or tortious acts. Upon this rule he is not supposed to warrant against the lawless acts of individuals, nor will the law presume that such acts will be committed. Thus the existing impediments the effects of a violent war, were the objects upon which this treaty were to operate, the commissioners would not presume, nor will the court now, that upon the return of the blessings of peace, such acts of violence would never again take place.

Again, to suppose that congress meant by this treaty, couched in such general language, that an existing impediment should remain would be supporting them to act with that kind of subtle and knavist duplicity, which the law will neither presume, nor admit. Nations, says Vattel, † , are not less obliged than individuals, to act with candour and rectitude, and have regard to equity in their transactions with each other. It is true, he admits “that the powerful 'sometimes openly abandons the honest, for what appears to be the 'useful; but it frequently happens for the happiness of the human 'race, that this pretended utility becomes fatal to them, and they 'are severely punished for such mockery of morality and justice.”

The ancient and intimate connection, between the United State and the British government, as one great family, connected by the ties of blood, impressions of interest, and habits of intercourse, must have formed strong and powerful inducements to the members of both governments to heal the wounds of the war, to obliterate past differences, so as to re-establish that good understanding and friendship, that would ensure perpetual peace and harmony. They are the objects so strongly expressed in the preamble of the treaty they are not a mere formula, as in common cases, but a natural sincere and honest expression of the public mind and sentiment. The important and interesting circumstances, also furnish a rule of construction recognized by the law I have already read, and requires of us to determine any question arising upon this treaty, upon this most liberal principles of equity and reciprocity.

*59I have only to add on this part of the case, that if treaties are to construed favourably, as writers term it, surely it is the dictate of equity and more consonant to justice, that the state should reimburse the debtor, who isi ts own member, the nominal sum he paid, than that a bona side creditor should lose his whole debt; that private faith should not be affected by political wars, that individuals should not suffer by the lawful exercise of their natural and political rights. Certainly nothing can be more repugnant to justice, than that the strongest moral obligations should be dissolved by a nominal process, a process that resembles magic, more than reality; that a mere assumption of power, should annihilate obligations, which in moral sense are immutable.

2. Thus far the article has been considered, as if it flood alone. The court will permit me now to make a few remarks, on the doctrine held by the other side, considering this article connected with the 5th and 6th; and this mode, the counsel infers, is proper on that rule of interpretation, founded upon the connection of the discourse. Where articles or clauses relate to the same subject, they must and sought to be construed together; their operation should be consistent, and their construction governed by the same principle: but 5th article is a special provision for debts, has a single aspect, and bands is simply by itself. The 5th and 6th articles have quite different objects, as will be seen by looking into them. It is said that words “provide for the restoration of all estates, rights and properties,” admit the right of confiscation and include debts. This expression occurs four times in the 5th article: the last affixes a precise meaning to these terms, viz. “Congress shall also earnestly recommend that the estates, rights and properties of such last mentioned persons shall be restored to them, they refunding to any person who may be now in possession, the bona fide price, when any has been given, which such persons may have paid on purchasing any of said lands, rights or properties since the confiscation." Thus the estates, rights or properties here meant were clearly such as could have been sold by the public, and possessed by some individuals at the peace, for which he might have paid valuable consideration. No man will surely pretend to say, that this could be the case of a debt under the laws of this state, or any of the United States. It is plain that this whole article contemplated the lands, slaves and other property which had been sold by the commissioners: the debts had been already fully provided for in the preceding article.

It is said there is no difference between debts and other property. There are many important differences, besides the striking one stated in the treaty, the debts were attempted to be collected by the public; the lands were sold to individuals for valuable consideration, they had probably passed through various hands, and become the subject of improvements, and of course of attachments; justice as well as policy, forbid that such property should ever be returned: it was said that this property was of trifling value compared *60with the debts. This is a great mistake, the lands alone in this state were equal in value to ten times the amount of debts due to British subjects, and this property congress had clearly no power to dispose of, the sovereignty of the soil being vested exclusively in the respective states.

It is also said, that this article makes three descriptions of men with different rights. That the plaintiffs are in the third, and most unfavoured class, that the court are bound to regard a distinction made by the treaty itself. This conclusion is the most strained and in correct, that has been made on the part of the defendant. It is first recommended, that they shall provide for the restitution of all states, belonging to real British subjects; 2d. for the restitution of the estates, of persons resident in districts, in the possession of his majesty’s arms, and who have not borne arms against the United States.

3. And that persons of any other description shall have free liberty, &c.

The first description plainly includes all persons born in the allegiance of the king, of Great-Britain, and who had not abjured the same, and taken the oath of allegiance to the states?

As to the second class: it was known that the enemy’s principal posts commanded considerable districts of country, beyond the immediate works of the place, as at Charleston and New York: that in these, numbers of inoffensive citizens were suddenly involved in their country’s misfortunes, without the means of escape or removal: that many were chained to the spot, by the claims of a helpless suffering family, who depended upon them for sustenance. They not borne arms, and only yielded a passive submission to the of war; reason appeared to impute no crime to people of this description, and they certainly merited some consideration, and in the treaty are placed on a footing with real British subjects. A certain delicacy seems to have dictated the terms used in describing the third class, “persons of any other description.” This, without using, mortifying or distinguishable terms, included the fugitive from justice, and the blood-stained traitor, or in other words, the citizen who had borne arms against the United States, in contradistinction to the citizens of the 2d class who had not. The plaintiffs never were citizens of the United States, no crime attached upon them. they were born in the allegiance of the king of Great-Britain, and when called upon by the law of the state to make their election they solemnly refused to abjure the same, thus they were, and continued to be real British subjects, and are plainly neither included in the 2d, nor 3d classes of the 5th article.

The 6th article is a common and necessary stipulation of reciprocal amnesty, and predicated upon the spirit and policy of conciliation, and the justice of shielding individuals from suits and prosecutions, for the common violence of the war. Such a stipulation was proper and necessary, whether the treaty flood with or without the 4th article, and has indeed no connection with it,

*61 We will now proceed to consider the 2d, 3d, and 4th pleas, as standing upon the acts of Assembly.

The second plea is grounded on the act of November 1777, ch. 17, and the two first sections of the act of October 1779, alledging that hereby the above debt was confiscated and fully forfeited to the state, that therefore, &c.

It has been already observed, that the act of November 1777, ch. 17,† does not contemplate the case of the plaintiffs. “All persons who had removed themselves, or had been removed under the compulsory authority of the laws, or who had removed to avoid taking the oath of allegiance,” are expressly excepted, and are clearly out of the purview of the act.

The people of the above description had been solemnly called upon to make their election. That election was irrevocable, they were obliged to depart, and it was made death by the same law to return. While this law remained unrepealed, if they returned, they forfeited their lives and fortunes; and supposing the other act to comprise them, if they remained in foreign parts, they forfeited their estates. To avoid this injustice and absurdity, the proviso of the 4th section excludes them positively from the purview and operation of the act.

This construction must govern the operation of the act of October 1779. The clauses relied upon in this plea, are expressly grounded upon this act*. This is clearly shewn by the preamble. The plaintiffs, with a number of others, are named in the second section, of that act, as having incurred the penalties of the act of 1777, the fact was notoriously otherwise, and so it stands upon the pleadings, and the only rational construction that can be put upon this part of the act, as it regards the plaintiffs, is the one I have already submitted to the court, in the argument on the first plea: of which I beg leave to avail myself; only mentioning that the conclusions were, that the act could not comprehend this debt.

That the legislature had rendered a compliance with the act of November impossible.

That this act could only operate as an office found, with respect to the lands unsold.

And that where the words "debts or monies” occurred, they must be applied to the case of others.

It is only necessary to repeat, what has already been proved in the argument; viz. that it could not mean the money owing to them, because it required them to sell and depart.

It could not proceed on their adherence to the old government; because they had made it high treason to return to the new community.

All compliance with the act of November 1777, was rendered impossible: their real estates unsold, were already forfeited or confiscated; nothing more was necessary, except directing a sale, and *62this was ordered in this act of October 1779. This construction gives it operation with regard to them, and the only consistent and legal operation it can have, where the words “monies and debts” occur in this act, it must be supposed to apply to some of the others named in the act, who were in a different situation, of whom there were many, and this satisfies the act without inconsistency or absurdity.

Again, to have required of these people to have collected their debts, would have been demanding of them to perform what the laws had rendered impossible. The courts of justice were shut or suspended from 1773, until November 1777, and the first act that established them excluded the plaintiffs from the benefit of the coercive authority of the laws. Thus there were no courts at the time of their departure, and none afterwards in which they could sue. On what grounds will it then be argued, that these people were to collect their debts before their departure, or how will it be shewn that their agents could effect it afterwards?

The 14th section of the same act*, intending to provide for the case of the plaintiffs, shews clearly that they were not included in the former part.

III. The third plea of the defendant rests on the 14th section of the same law; averring that the plaintiffs refused to take the oath of allegiance, and were compelled, to leave the state by virtue of the act of 1777, and that they had not appointed any lawful agents to receive and give discharges for debts, that therefore, &c.

[The Section alluded to was read.] The provisoes of the expulsion laws of 1777, are the express ground of this section, and the preamble assigns two causes of confiscation, “failure to sell their real estates, and the omission to appoint attornies or agents to receive and give discharges for debts.”

The first reason is perfectly consistent with the provisoes in both of the acts of Assembly. The other is evidently founded on mistake. The act gives them leave to appoint an attorney to sell and dispose of their estates; but not a word is said about “receiving and giving discharges for debts.” The object of appointing those attornies and their duty are already pointed out by the final part of the clause, viz, “and if any real estate,” remains, &c.

The enacting part of this clause even detachedly considered, upon its own letter, admits of no other construction. 1st. 'The lands not bona fide sold for valuable consideration actually paid.' This part of the clause has received a fixed construction in our courts, in the suits of N. Long, commissioner, against Hill, in Halifax superior court. The counsel for the state relied upon this part of the act; it being in evidence that Hill gave a bond to M’Clellan, for the consideration money, which was unpaid before M’Clellan’s departure, who was the original owner, and one of the persons named in the confiscation act of 1779: the court said the act would not warrant *63such a construction; that the bond was a payment, and that it was not necessary the money should be paid upon the bond; it therefore follows if it was not necessary to pay, it was not necessary to receive.

This might give a rule of construction for the remaining part of the clause, were it necessary. But this part of the law, has such apointed and express reference to the acts of Assembly of April and November 1777,* that it must necessarily be expounded and controuled by them; the words are, 'that all debts, not yet collected and 'appropriated according to the directions of the said acts shall ‘be confiscated; then limit the operation to the requisitions of those preceding acts, and it follows, “if those acts required debts 'to be collected, and they were not collected, then were they con‘fiscated; if the monies were to be particularly appropriated, and 'they were not so appropriated, then was the money confiscated.’ Wherever the party contravened the direction of the act he incurred confiscation, but not otherwise; the acts† will speak for themselves. (Here the acts were read.)

The honour of this country is greatly indebted to that correct and enlightened mind that drafted the first confiscation laws, and formed them so perfectly upon the principles of natural justice, that their influence was felt through the whole system afterwards, whatever shape or form these laws assumed; so that even in the present case, where it was plainly attempted, the arm of confiscation seems to have been palsied, when it attempted to violate property confided to the faith of our government.

It has been shown in the argument on the first plea, that the principal could not collect because there were no courts to inforce payment, and it becomes necessary to observe more particularly here, that by the 101st § of the court law, the same act which opened the courts, excluded the plaintiffs from the benefit of it:‡ thus the collection became impossible. The state shut the courts against the agents also of these people, declaring they should not have the benefit of the laws to inforce payment, shall she then be made to say, “you shall forfeit these debts, because you did not collect them?” This would be imputing a degree of absurdity and injustice to the legislature that cannot be admitted.

I take it to be the same thing to refuse them the assistance of the laws, and to say they should not collect. When the law requires any thing to be done, it supposes all the ordinary means in the power of the party, and particularly that its own assistance is not to be refused.

If the legislature intended that their agents should collect, they would certainly have so expressed it in the same clause which they inforced the sale of lands, where if it had been the intention of the legislature, it would certainly have appeared; the law and usage of nations preserved the obligations of their contracts, altho’ *64they suspended suit and collection; the merchants were not to presume any thing contrary to the usage of nations, where in a case like this it was not otherwise declared.

The plain import of this clause‡ is this, their attorney may dispose and sell their states, but there is no attorney to collect their debts, nor can it be implied from any part of the act, while every reason militates against it.

The law of nations suspended the right of suit.

The act of April could not require it, because at that time there were no means of collection.

The act of November could not require it, for the same session suspended that right by law.

Collection of debts is not an act of mere volition: time and means are both necessary. It is plain that debts were not contemplated, that they were not within the purview of this law, therefore, out of the operation of the 14th § in question, which is plainly bottomed upon the acts of 1777, by which it is expressly directed and controlled.

IV. The 4th plea is in substance the same with the second, though in a different form. The arguments submitted upon that will therefore apply to this plea, and I shall not trouble the court with a repetition of them.

2d. POINT.

If however, these pleas are sustainable by the act of Assembly, it remains to be considered, whether those matters pleaded in bar, are not among the impediments removed by the treaty of peace.

Much has already been said on the import of the 4th article of the treaty, the precision of the terms in which it is couched, and the latitude of their operation, and it is only necessary to narrow their aspect, to shew that they include the matters stated in the 2d, 3d, and 4th pleas of the defendant.

This treaty, which all agree, was binding before in a moral sense, is now to be executed by the vigour of its own authority, and being the supreme law of the land, all laws that contravene the treaty are thereby repealed.

A mere repeal of the confiscation laws would have altered the situation of the debtor and original creditor very little, and must have fallen greatly short of the purposes of justice, and the objects of the treaty, thus it became necessary to go farther and remove "all impediments to the recovery of the debts.";

If this expression should be limitted to impediments created by laws existing at the peace, it would follow, that in all instances where there was a bare legislative act of confiscation, unattended by collection, payment or discharge, that the impediment of confiscation being removed, the debtor and original creditor were again in statu quo. This is expressly conformable to the doctrine laid down by Bynk 2 j. p. lib, 1, c. 7, “If the prince really exacts from *65his subjects what they owed to our enemies; if he shall have exacted it is rightfully paid. If he shall not have exacted it, peace been made, the former right of the creditor review." Thus, according to this celebrated jurist, in all cases where the money was not actually paid, the original right of the creditor would be reviewed, had the treaty contained no stipulation to that effect.

If this expression embraces all impediments created during the war, then every existing obstacle, every lawful impediment, enacted as created by the individual states, or the United States, are swept away. The impediment created by payment to the public commissioners was, in fact, the only one that rendered such a stipulation absolutely necessary; the acknowledged law of nations, would have been competent to give relief to the creditor, against the case made by the defendant, in the 2d, 3d, and 4th pleas.

Again, if in cases of payment and discharge, this construction should be held to operate a sacrifice of individual rights, and this should be considered as an objection in that case, no such difficulty occurs here: the sovereign power might rightfully relinquish its own claims to the debt. It appears to me that no question can be made; out the treaty does away all impediments arising from any law then existing, to the prejudice of the creditor's right. This is no more than a stipulation on the part of the states, that they would relinquish all claims to debts due before the war, to British creditors. This, as I have said, they would rightfully do, if they could do any thing: they were competent at least, to restore what they had taken, and to stipulate that no future law should be made to affect their recovery.

It been said, in the argument on the 1st plea, that the terms used in the treaty are clear, precise and unequivocal; comprehending every case in which justice could be interested. The mode of expressing is the most happy that could be conceived, by which a few words answer all the purpose of as many sentences in other cases. If it was a mere sequestration, then the subject sequestered is restored, if it was such an act of confiscation, as might be said to divert the right of the creditor, the public claim is relinquished: the original right of the creditor is revived and recognized. Whatever the public right or claim was, or by whatever means it was acquired, it shall be no bar to the creditor's recovery of the full value of his debt: and thus, the creditor, with regard to his debtor, is put perfectly in the situation he was before the war.

Having considered the merits of those. pleas severally, there are some general views of this subject, which, as they appertain to all the pleas I have postponed to this stage of the argument, viz. whether the acts of 1777, and the compliance of the plaintiffs, ought not to be considered in the nature of a compact, and how far the state of North-Carolina was bound by the existing law of nations?

The propositions of the legislature, in the laws of 1777, and the *66consequent acts of the plaintiffs, should be considered as creating a solemn compact,indissoluble but by the consent of both parties.

The natural, and even civil rights of persons, on a separation or dissolution of the community, are in many respects, different from those of alien enemies, as will be shewn presently; these rights appear to have been considered and respected by the sovereignty of this country.

The 5th and 6th § of the acts of 1777, contain the stipulations and terms of the state. They are shortly these:

You may become a member of the new community, if you will solemnly and publicly abjure your allegiance to our former sovereign, and take an oath of allegiance to the new government.

If you elect to continue under the old government, you must depart within 60 days.

You shall have liberty to sell and dispose of your estates, while you stay.

You may export the amount in produce.

It is expected that you will honestly pay your debts.

You must not export naval stores or provisions: they are contraband.

If 60 days should be too short a time to sell and dispose of your estates, you may appoint attornies to sell and dispose of them, after your departure.

But if any real state remains unsold for more than three months after your departure, the same shall be forfeited to and for the use of the public.

And if ever you return, you shall be adjudged guilty of treason, and shall suffer accordingly.

If you will neither take the oath, nor peaceably remove yourself, in conformity with the act, the county court shall send you by force to the West-Indies, at your own expence.

The election of the party, under this act, made it at the same moment, binding upon himself and the state, in the nature of a firm solemn compact, irrevocable in its very nature, but by mutual consent; decided and immutable in its consequences as to him, and certainly reciprocally so as to the state.

Then by taking the oath, the state conferred the rights of citizenship, and he subjected himself to the obligations of a citizen; obligations he could not dispense with afterwards.

If he once departed, his election was made forever, for any thing that appeared; and it became death to return.

In this case, the state on her part, entered into several stipulations.

Those that are express I have already mentioned, there are others that are necessarily implied; for example:

It is expressed that they shall depart in sixty days, it is also implied that they shall not be made prisoners of war during their stay or departure.

It is expressed, that they may export the amount of their sales *67in produce: this also includes an exemption from seizure on the high seas, although not expressed.

Naval stores and provisions are excepted; these were therefore to be considered contraband; and it follows from this exception, that all other produce might be freely and lawfully exported.

In like manner, in the clauses contemplating the property of the merchant, it is said: if your real estates remain unsold for more than three months, it shall be forfeited, This case being stated, is to be taken as a full expression of the mind of both parties, as to the extent of forfeiture, and it is then clearly inferred that all other property, and particularly their debts, remained untouched, because unmentioned, No other conclusion could have been formed, and they must have made their election, and departed under this impression, that their debts were consided to the protection and faith of our government and laws; and in this light it becomes binding and obligatory on the public. This is agreeable to Mr. Paley's maxim, a promise, says he*, is to be performed in that sense in which the promisor apprehended, it was received by the promisee at the time such promise was made.

This act was passed after the declaration of independence, when this state had fully assumed the faculties of a moral person or a body politic; when she was fully capable of binding herself and the citizens; when she had taken her place and rank among the nations of the earth; when she claimed those rights, which appertained to nations from others and became subject to similar obligations. These engagements required no particular diplomatic ceremony; they were an immediate act of the supreme authority itself, and must therefore be considered as an explicit and solemn pact between those people, and the sovereignty of this country. A mutual compact in which, these people having performed their part, by removing themselves out of the state, the legislature or the state could not retract its consent, or discharge itself from the obligation she had voluntary entered into, without the violation of every sentiment and principle of faith.

This statement receives great weight from an act of the legislature, of November 1777, in the 101st § of the court law. This act describing these people, declares they shall not have the benefit of that law, but that all right of commencing and prosecuting suits shall be, and are thereby suspended, and shall remain suspended until the legislature shall make further provision therein. To prohibit the recovery of a debt, presupposes the existence of a debt. The rights of the creditor are here solemnly recognized, as well as those principles and usages of the law of nations, I have so often mentioned. This furnishes a strong and incontrovertible evidence of the sense of legislature at that time, of the nature and effect of the compact with these people.

Again, as the legislature, in stating the terms of their separati*68on, was silent on the subject of their debts. The fair construction is, they were to be considered under the protection of those laws, that were equally obligatory on both, viz, the law of nations. Some writers lay it down, as a positive rule of law, that the right of bringing suit is only suspended during the war. Vattel, indeed, mentions it as a usage introduced among nations, with the progress and extention of commerce.* We may be indebted for the observance and general introduction of this rule among nations†, to modern commerce, with many other blessings, attendant on improved society and civilized life: but it has certainly a higher sanction in its conformity to the eternal and immutable principles of justice.

The moral ground stated by Vattel, is that stangers might trust foreign subject only from a firm persuasion that the general custom would be preserved. How much stronger is the case of the plainstiffs! The dissolution of a government is never to be presumed; they were members of the same community; their contracts were bottomed on the strongest ground of private and public confidence; when they parted, it was fairly and necessarily implied from the terms of separation, that their contracts, independant of the law of nations, were to be held sacred from all the consequences of the war. A fortiori, they were at least to be left on the foot of the prevailing usage of civilized nations, at the time that the United States assumed their place among those nations.

According to Grotius ‡ , the debts of individuals are not discharged by war. These are not acquired by the right of war. The right of collection or demand is only suspended. This doctrine is also sanctioned by the opinion of Barbeyrae ǁ , whom Vattel respects, as of himself of good authority. These writers consider war in the language of the treaty, as a mere temporary impediment, which being removed, the debts retain their full force and obligation. This was without doubt, the idea of the parties; it corresponded with the state of things at the time, and the conduct of the legislature, at that period, appears to have been expressly predicated upon the acknowledged law of nations. When the first act passed, there were no courts in which these debts could be demanded. When the second passed the courts were erected, but the same act expressly excluded the plaintiffs from the benefit of those courts; very justly and doubtless on the principles above stated from Grotius.

In addition to these, I beg leave to add one more authority, not of so much celebrity as those I have already quoted, only because it is not so ancient. This authority is the opinion of Chancellor Wythe, in the suit, Page's ex'rs. against Pendleton and others, and although it may want the rust of time, it acquires additional weight from being given in a case arising out of the same war, and under circumstances nearly similar to the case at the bar.

This great man, so celebrated for his learning and judgment, holds *69his clear and decided doctrine; that the rights or laws of war and peace now established among nations, were as vigorous between the United States and Great-Britain, after the declaration of independence, as they could be between nations who had never been dependent upon each other; that upon their becoming distinct politic bodies, the rights and laws of nations immediately attached upon them. Indeed it would be difficult to shew any reason, why a community who claimed the rights of nations from all others, both for herself and her citizens, should hold herself discharged of all obligations to them is their subjects. Mr. Wythe has considered the war as a temporary impediment, in the same light that Grotius and Barbeyrac have done; is merely suspending the forensic assertion of the rights of alien enemies.

It should also be remembered, that the late war between Great-Britain and America, must be considered as a civil war. These wars originating in different causes, with particular objects, have been considered by all writers, in a light widely different from those annually denominated solemn wars.

This position draws several important consequences after it. The revolt of America, however laudable in the attempt, and glorious in the event, was a rising of a certain portion of the people, against the established supreme authority of the nation: thus every revolt supposes a superior during the revolt. The political connection is supposed to exist, it would be a solecism so say that the inferior dissenting power could make laws to bind the superior. Again, during a revolt, all power is, of course, assumed or usurped. This usurpation of assumption can never constitute a right; hence, it is clear, that until the treaty of peace, the American states could not rightfully legislate for themselves, much less for the British empire, and this was the reason that the first article of the treaty, acknowledging the sovereignty and independence of the United States, and to expressly relinquishing all claim to the government and territorial lights of the same, became an object of vast importance to America.

Lastly, it is a prejudice, too common with us, to connect the departure of these people in 1777, who only exercised their natural rights, with the subsequent conduct of those who became cities, and afterwards barely deserted us in the gloomy periods of the war: but no two cases can be more widely different.

All writers, on the subject of government*, agree that a nation may change its constitution, by a majority of votes, whenever there nothing in that change contrary to the fundamental principles of the original act of civil association; and in this case, all are bound to confirm to the resolution of the majority. But when the question is to quit the form of government, and adopt another fundamentally different, as for instance, to change that of monarchy for a republic, although the majority may rightfully effect the change as to themselves, the minority are under no obligation to submit to the new government, *70but may retire with their property and effects. These distinction are founded on the broad basis of the rights of man, and the great policy of public peace and safety.

Thus stood the rights of my clients, had no compact, no treat ever existed, But in addition to the act of the legislature, which have stated to the court, it must also be noticed that the final separation of Great-Britain, and the United States, into two distinct and independant nations, was by mutual agreement. The basis, of rather preliminary of this national compact, was the declaration of independence: the consummation was the treaty of peace. Then taken together and not separately form the real act of separation and in construction by a settled rule of law, are to be considered together. In the one, the great national rights are asserted, and ceded and acknowledged in the other. Here also the rights of the citizen and subjects of the two nations are recognized and confirmed. Viewing this compact as a law, it is only declaratory, or in affirmance of the law of nations and the universal principles of nature justice. Viewing it as a convention, it is adding the warranty of the United States, to the legal claims of my clients.

*

Mr. Att. Gen. Haywood, the defendant’s former counsel, while this cause was pending, was promoted to a seat on the bench of the Superior Courts of the state.

*

1, 1777, 3, 284.

†

Vattel, 30.

‡

2, 1777, 6, 321.

†

2, 1777. 2, 101, 318.

‡

2, 1777, 17, 341.

*

3, 1779, 2, 379

†

3, 1779, 2, 383.

†

3, 1779, 2, 384.

‡

Vattel, 30.

*

3, 1779, 2, 379.

*

Page 341.

†

Jefferson's Gorr. p. 48, § 40.

‡

Iredell’s Rev. 648,

*

p.269, § 363.

†

B. 2, c. 17, & 278.

*

Vattel, § 283.

*

Vattel, p. 378 § 280.

*

Vattel, p. 2, c. 17, § 270, 271, 280, 282, 283.

*

3, 1779, 4, 384.

†

Vattel, b. 2, 6, 17, § 264.

*

Vattel, as before, § 266.

†

b. c. 12.

†

Page 341.

*

3 1779, 2, 379.

*

3, 1779, 2, 14, 383.

*

1 1777, 2, 286, 2, 1777, 6, 324.

†

1, 1777, 3, 284.

‡

Page 318.

‡

Page 364.

*

Page 95,

*

b. 3. c. 5. & 77.

†

. Ld. Raym. 282.

‡

b. 3. c. 20. § 16, & p. 1.

ǁ

2. Barb. § 265.

*

Vattel, b. 1. c. 3. & 33.

Sitgreaves, J.

This is an action of debt, brought by the plaintiffs, to recover of the defendant, on an obligation made in the year 1776. The defendant has pleaded four several pleas in bar, which are now for the decision of the court by demurrer.

I shall consider of the case, as it appears by the first plea; which places the defendant, on the most advantageous ground: as a decision on that will probably govern all the cases arising out of the subsequent pleas.

The case as it appears by the first plea, is as follows: the plaintiffs were merchants, residents of North Carolina, before and at the time of the declaration of independence. By an act of the legislature of North Carolina, passed in April 1777, it was among other things enacted, “that all persons, being subjects of this state, and "now living therein, or who shall hereafter come to live therein “who have traded immediately to Great-Britain or Ireland, within “ten years last past, in their own right, or acted as factors, store“keepers of agents here, or in any of the United States of Ameri"ca, for merchants residing in Great-Britain or Ireland, shall take "an oath of abjuration and allegiance, or depart out of the state." By the same act, such persons were permitted to sell their estates, to export the amount thereof in produce, and to appoint attornies to sell and dispose of their estates for their use and benefit. The plaintiffs, falling within the description of persons contemplated by this act, and refusing to take the oath, departed the state: the debt which is the subject of the present suit then existing. By subsequent acts of the legislature, all the estates, rights, properties and debts of certain person, among which the plaintiffs are specially named, are declared to be confiscated: and the debts due to such *71persons are directed to be paid to certain commissioners, to be appointed by the county courts for that purpose, by all persons within the state, owing the same, under pain of imprisonment: which payment it is declared shall forever indemnity and acquit the persons paying the same, their heirs, &c. against any future claim for then money mentioned in the receipts or discharges of such commissioners, In obedience to those acts, the defendant paid the debt in section, to the commissioners authorized to receive it, and relies that payment as legal, and a full and sufficient discharge. The plaintiffs, admitting the fact of payment, rely on the construction the treaty of the peace; the law of the state declaring that treaty to the part of the law of the land; and the constitution of the United States. The counsel for the plaintiffs, in support of their claim, is in the course of his argument, presented to the view, a doubt whether the debt in the present question has been confiscated in a strictly legal sense, by any of the acts called confiscation acts? and is urged that doubt strenuously, and with much force of argument: contemplating them as a body of penal law, and of course subject to the legal rules of construction in such cases. The observations that point would merit much attention; but I deem it not absolutely necessary to investigate that question, in forming an opinion upon the present case: and shall confine my observations solely to the law and the facts, as they arise out of the pleadings, in the first plea of the defendant, which admits alone of this question, viz.

Are the plaintiffs barred of a recovery?

It would appear quite unnecessary, to enquire whether congress, under whose authority the treaty was negociated, was vested by the states with a power competent to enter into such a contract, I not part of the arguments of the defendant’s counsel seemed to inquire it. No one will doubt, if they had the power, the treaty insequently became obligatory on the people of the United States, when made and duly ratified.

Whatever agreement the states may have entered into, at the declaration of independence, and to what purposes and extent that agreement may or may not have bound them, as a confederated bond; it is clear that at a subsequent period, and previous to the negociation of this treaty, they, by their delegates in congress, formed and entered into a solemn compact, by which they plight and engage the faith of their constituents, to abide by the determination of the United States in congress assembled, on all questions which by the confederation, are submitted to them; and that the articles thereof, shall be inviolably observed by the states. Among many other portions of sovereignty which the states thought proper to defit in that confederated head, was the sole and exclusive right and over of determining on peace and war, (except in certain cases specially enumerated) of sending and receiving ambassadors, entering into treaties and alliances. No words can be more comprehensive or express, relative to the point in question: nor is there of*72fered to my mind the least room for doubt. Admitting for argument’s sake what has been contended, that the ministers, who negociated the treaty, exceeded the powers granted them, certainly the ratification of that instrument, by congress confirmed and legalized all that had been done by them; and if it could be supposed, as has been said, that congress in the ratification of it, exceeded the powers vested in them by the state, the act of Assembly of the state, passed in 1787, must have extinguished every scintilla of doubt, as to its validity and obligatory force on their citizens. That act is a perfect recognition of the whole treaty, declares it to be part of the law of the land, and directs the Judges to decide accordingly. The last mentioned act must surely be sufficient to satisfy the mind of the most scrupulous and sceptical. For myself, I do not hesitate to declare, that it adds nothing to the validity, or legality of the treaty; that its ratification by congress was alone sufficient, and that the act of Assembly of the state was superfluous.

The counsel for the defendant has contended that, by the operation of the acts of confiscation, and the payment into the treasury, the plaintiffs were wholly divested of their right; and the same, if existing at all, was vested in the state. This forms a material part of his defence, and if it had been clearly evinced, that the right of the plaintiffs was wholly extinguished, by the operation of the confiscation acts, and could not possibly be revived or restored, by any subsequent act of the state, or the nation, it would follow of course, that they could have no demand against the defendant. In support of this argument, it is said, 4 Bacon, 637, that all acts done under a statute while in force, are good notwithstanding a subsequent repeal. I am ready to admit the principle in its fullest extent, in the exposition of a statute or municipal law of any particular state. It is consonant with reason, and is justified by the necessity of the case; it prevents much confusion and embarrassment and insures a ready submission to the laws, by a confidence in the security impliedly promised to such obedience. If the treaty was now to be considered as an act of the state, and emanating from the same authority only that produced the acts of confiscation, this reasoning might be solid. But that instrument cannot be subject to the ordinary rules construction, which govern in the exposition of statutes of particular state. These have for their object, the regulation of the rights of a distinct community or society only, whose interests being similar, are equally affected by an uniform regulation of their rights; who are alike united by the allegiance due to, and protection from, the same government; that is a compact formed between two separate and distinct nations, relative to certain specified subjects which involve interests of their respective citizens or people, unavoidably clashing with each other.

The one is an act of a state, but a component part of the nation, providing for the benefit of its own citizens. The other a compact of the whole nation (of which that state is but a part) with another *73nation, which must necessarily controul all acts issuing from the inferior authority which might contravene it. This is evinced by that plain and strong expression in the constitution of the United States, which declares, “that all treaties made, or which shall be made, under the ‘authority of the United States, shall be the supreme law of the 'land, and the Judges in every state shall be bound thereby, any ‘thing in the constitution or laws of any state, to the contrary not'withstanding.” Taking it for granted then, that the treaty is not to be governed, when in opposition to particular laws, by the rigid rules of the common law; nor to be restrained in its operation, by any statute of any particular state, but that “it ought to be in"terpreted in such manner as that it may have its effect, and not be "found vain and illusive," I will proceed to consider of the operation of the 4th article.

Art. 4th. “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."

This article appears to me so clear, precise and definite, that one would be at some loss to select other words to render it more so. But it has been contended by the defendant's counsel that, by a true construction of this article, it will appear much less general than the expressions would warrant; that it is a provision for real British subjects only, that is, persons resident in Great-Britain at the commencement of the war; a term used in contradistinction to many other descriptions of people, who in the course of the war, took part with that nation, and that this construction is justified by the term sterling money. In order to support this exposition, a reference has been had to the 5th and 6th articles.

The 4th art. contains the only stipulation with respect to debts. In the whole instrument it is mutual and general in its expression; not limitted or restrained by any particular words, to any description of persons, as is evident in the 5th art. If that had been in the contemplation of the parties, they could not have overlooked the necessity for these distinctions; nor are we at liberty to presume it. In the next article, the distinction is made with great accuracy, with regard to those who may endeavour to procure a restitution of their lands and other property. With respect to the expression sterling money, it appears to me that was probably concluded on as a standard, whereby to estimate the value of money due; it being no doubt, apprehended that a depreciated paper medium circulated in many states of the union, the nominal sum in which might not produce the intrinsic value of the debt due.

Another construction has been placed on this article, equally, in my opinion, unfounded, with the foregoing. It has been said, the article was only intended to take off from British subjects their disability as alien enemies to sue. Every one knows that disability *74can only exist during the continuance of a war, it would have been therefore unnecessary to provide for it in a treaty of peace; when it is obvious, the peace itself, agreeably to the long established principles of law, removed all such disability without any special stipulation, The word recovery admits not of such an idea. The terms sue and recover have very different import, in practice. The difference is daily exemplified in our courts, and the distinction appears evident, in the body of that instrument; in the latter part of the 5th article, it is stipulated that, certain persons shall meet with no lawful impediment in the prosecution of their just rights. In the 4th art. the words are, no lawful impediment to the recovery of their debts. The distinction is obvious, and the terms aptly applied in each case. In the former, relative to lands and other property which had been confiscated, and a restoration of which entirely depended on the liberality of the legislatures, the term recovery would have been improper; in the latter, in which a payment to the creditor or was positively stipulated, the expression is correct.

Vattel says, p. 369 "when an act is conceived in clear and pre'cise terms; when the sense is manifest, and leads to nothing absurd; 'there can be no reason to refuse the sense which this treaty natu'rally presents, to go elsewhere in search of conjectures in order 'to extinguish or restrain it, is to endeavour to elude it.”

It is therefore my opinion, that this article does controul the operation of the acts of confiscation, relative to debts; that the plaintiffs in this case, are entitled to recover on the first demurrer; the plea in that case being the strongest ground of defence made by the defendant; that therefore judgment be given for the plaintiffs, on such of the demurrers.

The state, who has compelled the payment from the creditor, by a threat of severe punishment, will certainly feel bound by every principle of moral obligation to reimburse, in the most ample manner, all those who have made such payments. In addition to the moral tie that it is bound by, an solemn promise so to do is, clearly expressed by an act of the legislature.

I have only to observe, that I have considered this case as of the atmost importance; that I have given it all the attention and consideration in my power to bestow at this time and place; that if my opinion is founded in error, which is possibly the case, happily for the defendant, there is a higher tribunal where the error may be corrected.

Ellsworth, C. J.

It is admitted that the bond on which this suit is brought, was executed by the defendant to the plaintiffs; and that the plaintiffs have not been paid. But the defendant pleads, that since the execution of the bond, a war has existed, in which the plaintiffs were enemies; and that during the war, this debt was confiscated, and the money paid into the treasury of the state. And the plaintiffs reply, that by the treaty which terminated the *75war, it was stipulated, that "creditors on either side, should meet "with no lawful impediment, to the recovery of bona fide debts "heretofore contracted."

Debts contracted to an alien, are not extinguished by the intervention of a war with his nation. His remedy is suspended while the war lasts, because it would be dangerous to admit him into the country, or to correspond with agents in it; and also because a transfer of treasure from the country to his nation, would diminish the ability of the former, and increase that of the latter, to prosecute the war. But with the termination of hostilities, these reasons and the suspension of the remedy cease.

As to the confiscation here alledged, it is doubtless true, that enemy’s debts, so far as consists in barring the creditor, and compelling payment from the debtors for the use of the public, can be confiscated; and that on principles of equity, though perhaps not of policy, they may be. For their confiscation as well as that of property of any kind, may serve as an indemnity for the expences or war, and as a security against future aggression. That such confiscations have fallen into disuse, has resulted not from the duty which one nation, independant of treaties, owes to another, but from commercial policy, which European nations have found a common, and indeed a strong interest in supporting. Civil war, which terminates in a severance of empire, does perhaps less than any other, justify the confiscation of debts because of the special relation and confidence subsisting, at the time they were contracted, and it may have been owing to this consideration, as well as others, that the American states, in the late revolution, so generally forbore to confiscate the debts of British subjects. In Virginia, they were only sequestered; in South-Carolina, all debts to whomsoever due were excepted from confiscation as were in Georgia, those of “ British merchants and others residing in Great-Britain.” And in the other states, except this, I do not recollect that British debts were touched. Certain it is that the recommendation of congress on the subject of confiscation, did not extend to them. North-Carolina, however, judging for herself in a moment of severe pressure, exercised the sovereign power of passing an act of confiscation, which extended, among others, to the debts of the plaintiffs. Providing, however, as the same time, as to all debts which should be paid into the treasury under that act, that the state would indemnify the debtors, should they be obliged to pay again.

Allowing then that the debt in question was in fact and of right confiscated, can the plaintiffs recover by the treaty of 1783?

The 4th article of that treaty is in the following words, “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.”

There is no doubt but the debt in question was a “bona fide" debt, and theretofore, contracted, i. e. prior to the treaty. To bring it *76within the article, it is also requisite that the debtor and creditor should have been on different sides, with reference to the parties to the treaty, and as the defendant was confessedly a citizen of the United States, it must appear that the plaintiffs were subjects of the king of Great-Britain; and it is pretty clear, from the pleading and the laws of the state, that they were so. It is true that on the 4th of July 1776, when North-Carolina became an independent state, they were inhabitants thereof, though natives of Great-Britain; and they might have been claimed and holden as citizens whatever were their sentiments or inclinations. But the state afterwards in 1777, liberally gave to them with others’ similarly circumstanced, the option of taking an oath of allegiance, or of departing the state under a prohibition to return, with the indulgence of a time to sell their estates, and collect and remove their effects. They chose the latter; and ever after adhered to the king of Great-Britain and must therefore be regarded as on the British side.

It is also pertinent to the enquiry, whether the debt in question be within the before recited article, to notice an objection which has been stated by the defendant’s counsel, viz. that at the date of the treaty, what is now sued for as a debt, was not a debt, but nonentity; payment having been made, and a discharge effected under the act of confiscation; and therefore that the stipulation concerning debts did not reach it.

In the first place, it is not true that in this case, there was no debt at the date of the treaty. A debt is created by contract, and exists till the contract is performed. Legislative interference, to exonerate a debtor from the performance of his contract, whether upon or without conditions, or to take from the creditor the protection of law, does not in strictness, destroy the debt, though it may, locally, the remedy for it. The debt remains, and in a foreign country, payment is frequently inforced.

Secondly, it was manifestly the design of the stipulation, that where debts had been theretofore contracted, there should be no bar to their recovery, from the operation of laws passed subsequent to the contracts. And to adopt a narrower construction, would be to leave creditors to a harder fate than they have been left to, by any modern treaty.

Upon a view then of all the circumstances of this case, it must be considered as one within the stipulation, that there should be “no “lawful impediment to a recovery.” And it is not to be doubted that impediments created by the act of confiscation, are lawful impediments. They must therefore be disregarded, if the treaty is a rule of decision. Whether it is so or not, remains to be considered.

Here it is contended by the defendant’s counsel, that the confiscation act has not been repealed by the state;—that the treaty could not repeal or annul it; and therefore that it remains in force, and secures the defendant. And further, that a repeal of it would not take from him a right vested, to stand discharged.

*77As to the opinion, that a treaty does not annul a statute, so far as there is an interference, it is unfound. A statute is a declaration of the public will, and of high authority; but it is controulable by the public will subsequently declared. Hence the maxim, that then 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. authorized 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 a statute, and another by a treaty, is absurd.

The treaty now under consideration was made, on the part of the United States, by a congress composed of deputies from each state, to whom were delegated 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.

If however, a subsequent sanction of this state was at all necessary to make the treaty law here, it has been had and repeated. By a statute passed in 1787, the treaty was declared to be law in this state, and the courts of law and equity were enjoined to govern their decisions accordingly. And in 1789, was adopted here the present constitution of the United States, which declared, that all treaties made, or which should be made, under the authority of the United States, should be the supreme law of the land; and that the Judges in every state should be bound thereby; any thing in the constitution or laws of any state to the contrary notwithstanding, Surely then, the treaty is now law in this state, and the confiscation act, so far as the treaty interferes with it, is annulled.

Still it is urged, that annulling the confiscation act, cannot annul the defendant’s right of discharge acquired while the act was in force.

It is true, that the repeal of a law does not make void what has been well done under it. But it is also true, admitting the right here claimed by the defendant, to be as substantial as a right of property can be, that he may be deprived, of it, if the treaty so requires. It is justifiable and frequent, in the adjustment of national differences, to concede for the safety of the state, the rights of individuals. And they are afterwards indemnified or not, according to circumstances. What is most material to be here noted is, that the right or obstacle in question, whatever it may amount to, has been created by law, and not by the creditors. It comes within the description of “lawful impediments;" all of which, in this this case, the treaty, as I apprehend, removes.

Let judgment be for the plaintiffs.

*

Vattel, 382.