|Georgia v. Brailsford
100 U.S. 1
[ Jay ]
Georgia v. Brailsford
This cause was now tried, by a special jury, upon an amicable issue, to ascertain , whether the debt due from Spalding, and the right of action to recover it, belonged to the State of Georgia, or to the original creditors, under all the circumstances, which are set forth in the pleadings and arguments on the equity side of the Court? See 2 vol. Dall. Rep. 403, 415.
For the plaintiff, Ingersoll and Dallas, proposed two objects for enquiry:–1. Was the debt due from Spalding, at any time the property of the State?–2. Has the title of the State ceased, or been removed, and the right of action re-vested in the defendants?
1. On the first point, they contended, that Georgia as a sovereign State, had power to transfer the debt in question from the original creditor, an alien enemy, to herself, notwithstanding some of the debtors were citizens of another State; that by her confiscation law she had declared the intention to make the transfer; and that without an inquest of office, her intention had been carried into effect in due form, and according to [p2] law, as well in relation to her own citizens, as to the parties who were citizens of South Carolina.–In support of these several propositions the following authorities were cited: 1 H.Bl. 149. Vatt B. 3. c.77. Lee on Capt. Bynk. B.1. c.7. Vatt.B.3.c.18.s.295. Jenk. 121 Sir T. Park.121. Plow.243, 324. 1 H. Bl.413. 2 Bl.Com. 405, 409. 2 Wood. 130. 4 B.. Com. 386. 1 Hal. P. C. 413. 3 Inst. 55. 1 Hawk. 68. 3 Bl. Com.259. 3 T. Rep. 731, 2, 3, 4. 1 Woodes. 146. Cor. Car. 460. 16 Vin. Abr. 85.6. 3 Bl. Com. 260. Park. 267. 1 P. Wm. 307. 1 Dail. Rep. 393. Hind. Ch. 129. 1 Vern. 58.
2. On the second point, it was urged, that although the word, “sequestration” was used in the Georgia law, yet, that the law directed the debt to be collected, in the same manner as debts confiscated, and to be put into the treasury, for the use of the state, until it should be otherwise appropriated; and that the state had never made any other appropriation; but, on the first opportunity, claimed it as a forfeiture. The election, therefore, to consider it as a confiscation, was reserved by the state to herself; and her subsequent conduct makes the reservation absolute. The exception of debts in the South-Carolina law cannot govern the case as to Powell & Hopton; for that law is only referred to for the manner and form, not for the subjects of confiscation. It only remains, therefore, to enquire, whether, independent of Georgia, the operation and existence of her law can be, and and has been, defeated and annulled. The peace merely does not effect the right of the state; for, the condition of things at the conclusion of the war is legitimate; and all things not mentioned in the treaty, are to remain as at the conclusion of it. The treaty of 1783 does not affect the right of the state; for, though it provides, generally, in the 4th article, that creditors, on either side, shall meet with no lawful impediment, in recovering their debts, this ought to be understood merely as a provision that the war, abstractedly considered, shall make no difference in the remedy, for the recovery of subsisting debts; that the remedy shall not be perplexed by instalment laws, pine-barren laws, bull laws, paper money laws, &c; but it does not decide, what are subsisting debts, which can only, indeed, be decided on the general principle of the law of nations. Laws of sequestration and confiscation, are not, however, the object of the 4th article of the treaty of peace; but of a subsequent article, in which Congress only promise (all, indeed, that they could do) to recommend to the states, revision and restitution. Debts discharged by law, where they originated, are every where discharged. Such is not only the doctrine of Georgia, but of the British Statesmen and Judges wherever the question has arisen. The Federal Constitution does not affect the right of the state; for, though [p3] it gives effect to the treaty of peace, it furnishes no rule for construing the meaning of the parties to that instrument. In relation to these arguments, the following authorities were cited:–State papers, Jefferson to Hammond, Hinde Ch. 127. 1 Br. Ch. 376. 3 Bac. Abr. 310. Caermarthen’s Memorial, American Museum, May 1787. 1. Hen. Bl. 123, 135. 3 T. Rep. 732. 1. H.Bl. 149. 2 Br. Ch. 11. 1 H.Bl. 146.
For the defendants, Bradford (the attorney-general) E. Tilghman and Lewis made the following points:–1st That the debts due to Powell & Hopton, had not been confiscated by the law of South-Carolina, and, therefore, were not confiscated by the words of reference in the law of Georgia; nor had Georgia a right to confiscate the property of the citizens of other states. 2d. That even if the law of Georgia had confiscated Brailford’s interest in the debt, the right to recover the two thirds belonging to Powell & Hopton was unimpaired. 3d. That the debt, as it respects Brailsford himself, is not confiscated, but sequestered; and that the sequestration had not been enforced by any inquest of office, seizure, or other act tantamount to an office or seizure. 4th. That the Peace alone, without any positive compact, restored the right of action to the original creditors. 5th. That without recourse to the general principle of the law of nations, the treaty expressly revives the right of action, by removing all legal impediments to the recovery of bona-fide debts, and the treaty is the supreme law of the land, by virtue of the Federal Constitution. In support of these propositions the following authorities were cited:–3 Bac. 203. 2 Co. 67. 1 P. Wm. 307. Curs. Canc 89. 1. Dum. Civ. L. 138, 147. Magna Carta. Sir T. Park. 267. 3 T. Rep. 734. Vatt. b. 4. c. 1.s.8. ib. c. 2. S. 20.22. Burn. Ec. L. 157. Carth. 148. Grot. b. 3. c. 20 s. 16. p. 700. 1 Dall. Rep. 233. 1. H. Bl. 123, 136. 2 Bro ch. 11. 1 Bl.c. 409. 240, Sir T. Raym. Saunf. 45. Plowd. 259. 3 Inst. 55. 1 Hawk. 68. State papers Bynk. b. 1. C. 7. 1. Ver. 58. Circular Letter of Congress.