SUPREME COURT of the UNITED STATES.
[ 3 U.S. 1]
February Term, 1794.
ON the meeting
of the Court, a commission was read, dated the 28th of January, 1794,
appointing William Bradford, Esquire, Attorney-General of the United
The STATE of GEORGIA, versus BRAILSFORD, et
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.
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 [3 U.S. 1,2] 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
[3 U.S. 3] 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. Dom. 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.
The argument having continued for four days, the Chief
Justice delivered the following charge on the 7th of February.
Jay, Chief Justice. This cause has been regarded as of
great importance; and doubtless is is so. It has accordingly been treated by
the Counsel with great learning, diligence and ability; and on your part it has
been heard with particular attention. It is, therefore, unnecessary for me to
follow the investigation over the extensive field into which it has been
carried: you are now, if ever you can be, completely possessed of the merits of
the cause. [3 U.S. 3,4]
The facts comprehended in the case, are agreed; the only point
that remains, is to settle what is the law of the land arising from those
facts; and on that point, it is proper, that the opinion of the court should be
given. It is fortunate on the present, as it must be on every occasion, to find
the opinion of the court unanimous: We entertain no diversity of sentiment; and
we have experienced no difficulty in uniting in the charge, which it is my
province to deliver.
We are then, Gentlemen, of opinion, that the debts due to
Hopton & Powell (who were citizens of South-Carolina) were
not confiscated by the statute of South-Carolina; the same being therein
expressly excepted: That those debts were not confiscated by the statute of
Georgia, for that statute enacts, with respect to Powell &
Hopton, precisely the like, and no other, degree and extent of confiscation
and forfeiture, with that of South-Carolina. Wherefore it cannot now be
necessary to decide, how far one state may of right legislate relative to the
personal rights of citizens of another state, not residing within their
We are also of opinion, that the debts due to
Brailsford, a British subject, residing in Great Britain,
were by the statute of Georgia subjected, not to confiscation, but only
to sequestration; and, therefore, that his right to recover them, revived at
the peace, both by the law of nations and the treaty of peace.
The question of forfeiture in the case of joint obligees,
being at present immaterial, need not now be decided.
It may not be amiss, here, Gentlemen, to remind you of the
good old rule, that on questions of fact, it is the
province of the jury, on questions of law, it is the province of the court to
decide. But it must be observed that by the same law, which recognizes this
reasonable distribution of jurisdiction, you have nevertheless a right to take
upon yourselves to judge of both, and to determine the law as well as the fact
in controversy. On this, and on every other occasion, however, we have no
doubt, you will pay that respect, which is due to the opinion of the court:
For, as on the one hand, it is presumed, that juries are the best judges of
facts; it is, on the other hand, presumbable, that the court are the best
judges of the law. But still both objects are lawfully, within your power of
Some stress has been laid on a consideration of the different
situations of the parties to the cause; The State of Georgia, sues three
private persons. But what is it to justice, how many, or how few; how high, or
how low; how rich, or how poor; the contending parties may chance to be?
Justice is indiscriminately due to all, without regard to numbers, wealth, or
rank. Because to the State of Georgia, composed of many [3 U.S. 4,5] thousands of people, the litigated sum cannot be
of great moment, you will not for this reason be justified, in deciding against
her claim; if the money belongs to her, she ought to have it; but on the other
hand, no consideration of the circumstances, or of the comparative
insignificance of the defendant’s, can be a ground to deny them the
advantage of a favourable verdict, if in justice they are entitled to it.
Go then, Gentlemen, from the bar without any impressions of
favor or prejudice for the one party or the other; weigh well the merits of the
case, and do on this, as you ought to do on every occasion, equal and impartial
The jury having been absent some time, returned to the bar, and
proposed the following questions to the court.
1. Did the act of the State of Georgia, completely vest
the debts of Brailsford, Powell, & Hopton, in the State, at the time
of passing the same?
2. If so, did the treaty of peace, or any other matter, revive
the right of the defendants to the debt in controversy?
In answer to these questions, the CHIEF
JUSTICE stated, that it was intended in the general
charge of the court, to comprise their sentiments upon the points now
suggested; but as the jury entertained a doubt, the enquiry was perfectly
right. On the 1st question, he said it was the unanimous opinion of the judges,
that the act of the State of Georgia did not vest the debts of
Brailsford, Powell & Hopton, in the State at the time of passing it.
On the 2nd question he said, that no sequestration divests the property in the
thing sequestered; and, consequently, Brailsford, at the peace, and
indeed, throughout the war, was the real owner of the debt. That it is true,
the State of Georgia interposed with her legislative authority to
prevent Brailsford’s recovering the debt while the war continued,
but, that the mere restoration of peace, as well as the very terms of the
treaty, revived the right of action to recover the debt, the property of which
had never in fact or law been taken from the defendants: and that if it were
otherwise, the sequestration would certainly remain a lawful impediment to the
recovering of a bona fide debt, due to a British creditor, in direct
opposition to the 4th article of the treaty.
After this explanation, the jury, without going again from the
bar, returned a Verdict for the defendants.
1. Mr. Bradford was appointed in the room of
Edmund Randolph, Esq. who had accepted the office of Secretary of State.
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