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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What is meant by interest?

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

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

Thirdly. The stipulation in the fourth article of the treaty of peace "that creditors on either side shall meet with no lawful impediment to the recovery of the full value in sterling money of all bona fide debts" contracted before that time, provides for the principal only, and leaves all claims of interest open, to be decided judicially, according to all the circum­stances of each case. There is no country in the world, where the distinction between principal and interest is better understood than in Great-Britain, and there Debt in common parlance means principal exclusively of interest. Generally in accounts the debt and the interest are distinctly stated.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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