Article 6, Clause 2

Document 21

Ware v. Hylton

Chase, Justice.--The defendants in error, on the 7th day of July 1774, passed their penal bond to Farrel & Jones, for the payment of 2976l. 11s. 6d. of good British money; but the condition of the bond, of the time of payment, does not appear on the record. On the 20th October 1777, the legislature of the commonwealth of Virginia passed a law to sequester British property. In the 3d section of the law, it was enacted, "that it should be lawful for any citizen of Virginia, owing money to a subject of Great Britain, to pay the same, or any part thereof, from time to time, as he should think fit, into the loan-office, taking thereout a certificate for the same, in the name of the creditor, with an indorsement, under the hand of the commissioner of the said office, expressing the name of the payer; and shall deliver such certificate to the governor and the council, whose receipt shall discharge him from so much of the debt. And the governor and the council shall, in like manner, lay before the general assembly, once in every year, an account of these certificates, specifying the names of the persons by, and for whom they were paid; and shall see to the safe-keeping of the same; subject to the future directions of the legislature: provided, that the governor and the council may make such allowance, as they shall think reasonable, out of the interest of the money so paid into the loan-office, to the wives and children, residing in the state, of such creditor." On the 26th of April 1780, the defendants in error paid into the loan-office of Virginia, part of their debt, to wit, $3,1111/9, equal to 933l. 14s. 0d. Virginia currency; and obtained a certificate from the commissioners of the loan-office, and a receipt from the governor and the council of Virginia, agreeable to the above in part recited law.

The defendants in error being sued on the above bond, in the circuit court of Virginia, pleaded the above law, and the payment above stated, in bar of so much of the plaintiff's debt. The plaintiff, to avoid this bar, replied the fourth article of the definitive treaty of peace between Great Britain and the United States, of the 3d of September 1783. To this replication, there was a general demurrer and joinder. The circuit court allowed the demurrer, and the plaintiff brought the present writ of error.

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From these observations, and the authority of Bynkershoek, Lee, Burlamaque and Rutherforth, I conclude, that Virginia had a right, as a sovereign and independent nation, to confiscate any British property within its territory, unless she had before delegated that power to congress, which Mr. Lewis contended she had done. The proof of the allegation that Virginia had transferred this authority to congress, lies on those who make it; because if she had parted with such power, it must be conceded, that she once rightfully possessed it.

It has been inquired, what powers congress possessed from the first meeting in September 1774, until the ratification of the articles of confederation, on the 1st of March 1781? It appears to me, that the powers of congress, during that whole period, were derived from the people they represented, expressly given, through the medium of their state conventions, or state legislatures; or that after they were exercised, they were impliedly ratified by the acquiescence and obedience of the people. After the confederacy was completed, the powers of congress rested on the authority of the state legislatures, and the implied ratifications of the people; and was a government over governments. The powers of congress originated from necessity, and arose out of, and were only limited by events; or, in other words, they were revolutionary in their very nature. Their extent depended on the exigencies and necessities of public affairs. It was absolutely and indispensably necessary that congress should possess the power of conducting the war against Great Britain, and therefore, if not expressly given by all (as it was by some of the states), I do not hesitate to say, that congress did rightfully possess such power. The authority to make war, of necessity, implies the power to make peace; or the war must be perpetual. I entertain this general idea, that the several states retained all internal sovereignty; and that congress properly possessed the great rights of external sovereignty: among other, the right to make treaties of commerce and alliance; as with France, on the 6th of February 1778. In deciding on the powers of congress, and of the several states, before the confederation, I see but one safe rule, namely, that all the powers actually exercised by congress, before that period, were rightfully exercised, on the presumption not to be controverted, that they were so authorized by the people they represented, by an express or implied grant; and that all the powers exercised by the state conventions or state legislatures were also rightfully exercised, on the same presumption of authority from the people. That congress did not possess all the powers of war is self-evident, from this consideration alone, that she never attempted to lay any kind of tax on the people of the United States, but relied altogether on the state legislatures to impose taxes, to raise money to carry on the war, and to sink the emissions of all the paper money issued by congress. It was expressly provided, in the 8th article of the confederation, that "all charges of war (and all other expenses for the common defence and general welfare), and allowed by congress, shall be defrayed out of a common treasury, to be supplied by the several states in proportion to the value of the land in each state; and the taxes for paying the said proportion, shall be levied by the legislatures of the several states." In every free country, the power of laying taxes is considered a legislative power over the property and persons of the citizens; and this power the people of the United States granted to their state legislatures, and they neither could, nor did, transfer it to congress; but on the contrary, they expressly stipulated that it should remain with them. It is an incontrovertible fact, that congress never attempted to confiscate any kind of British property, within the United States (except what their army or vessels of war captured), and thence I conclude that congress did not conceive the power was vested in them. Some of the states did exercise this power, and thence, I infer, they possessed it. On the 23d of March, 3d of April, and 24th of July 1776, congress confiscated British property taken on the high seas.

The second point made by the counsel for the plaintiff in error was, "if the legislature of Virginia had a right to confiscate British debts, yet she did not exercise that right by the act of the 20th October 1777." If this objection is well founded, the plaintiff in error must have judgment for the money covered by the plea of that law, and the payment under it. The preamble recites, that the public faith, and the law and the usage of nations require, that debts incurred, during the connection with Great Britain, should not be confiscated. No language can possibly be stronger to express the opinion of the legislature of Virginia, that British debts ought not to be confiscated, and if the words, or effect and operation, of the enacting clause are ambiguous or doubtful, such construction should be made as not to extend the provisions in the enacting clause, beyond the intention of the legislature, so clearly expressed in the preamble; but if the words in the enacting clause, in their nature, import and common understanding, are not ambiguous, but plain and clear, and their operation and effect certain, there is no room for construction. It is not an uncommon case, for a legislature, in a preamble, to declare their intention to provide for certain cases, or to punish certain offences, and in enacting clauses to include other cases, and other offences. But I believe very few instances can be found, in which the legislature declared, that a thing ought not to be done, and afterwards did the very thing they reprobated. There can be no doubt, that strong words in the enacting part of a law may extend beyond the preamble. If the preamble is contradicted by the enacting clause, as to the intention of the legislature, it must prevail, on the principle, that the legislature changed their intention.

I am of opinion, that the law of the 20th of October 1777, and the payment in virtue thereof, amounts either to a confiscation or extinguishment of so much of the debt as was paid into the loan-office of Virginia. 1st. The law makes it lawful for a citizen of Virginia, indebted to a subject of Great Britain, to pay the whole, or any part of his debt, into the loan-office of that commonwealth. 2d. It directs the debtor to take a certificate of his payment, and to deliver it to the governor and the council; and it declares that the receipt of the governor and the council for the certificate shall discharge him (the debtor) from so much of the debt as he paid into the loan-office. 3d. It enacts that the certificate shall be subject to the future direction of the legislature. And 4th, it provides, that the governor and council may make such allowance, as they shall think reasonable, out of the interest of the money paid, to the wives and children, residing within the state, of such creditor. The payment by the debtor into the loan-office is made a lawful act. The public receive the money, and they discharge the debtor, and they make the certificate (which is the evidence of the payment) subject to their direction; and they benevolently appropriate part of the money paid, to wit, the interest of the debt, to such of the family of the creditor as may live within the state. All these acts are plainly a legislative interposition between the creditor and debtor; which annilates the right of the creditor; and is an exercise of the right of ownership over the money; for the giving part to the family of the creditor, under the restriction of being residents of the state, or to a stranger, can make no difference. The government of Virginia had precisely the same right to dispose of the whole as of part of the debt. Whether all these acts amount to a confiscation of the debt, or not, may be disputed, according to the different ideas entertained of the proper meaning of the word confiscation. I am inclined to think, that all these acts, collectively considered, are substantially a confiscation of the debt. The verb confiscate is derived from the Latin con, with, and fiscus, a basket, or hamper, in which the emperor's treasure was formerly kept. The meaning of the word to confiscate is, to transfer property from private to public use; or to forfeit property to the prince or state. In the language of Mr. Lee (page 118), the debt was taken hold of; and this he considers as confiscation. But if, strictly speaking, the debt was not confiscated, yet it certainly was extinguished, as between the creditor and debtor; the debt was legally paid, and of consequence extinguished. The state interfered and received the debt, and discharged the debtor from his creditor; and not from the state, as suggested. The debtor owed nothing to the state of Virginia, but she had a right to take the debt, or not, at her pleasure. To say, that the discharge was from the state, and not from the debtor, implies that the debtor was under some obligation or duty to pay the state what he owed his British creditor. If the debtor was to remain charged to his creditor, notwithstanding his payment; not one farthing would have been paid into the loan-office. Such a construction, therefore, is too violent, and not to be admitted. If Virginia had confiscated British debts, and received the debt in question, and said nothing more, the debtor would have been discharged by the operation of the law. In the present case, there is an express discharge, on payment, certificate and receipt.

It appears to me, that the plea, by the defendant, of the act of assembly, and the payment agreeable to its provisions, which is admitted, is a bar to the plaintiff's action, for so much of his debt as he paid into the loan-office; unless the plea is avoided or destroyed, by the plaintiff's replication of the fourth article of the definitive treaty of peace between Great Britain and the United States, on the 3d of September 1783.

The question then may be stated thus: whether the 4th article of the said treaty nullifies the law of Virginia, passed on the 20th of October 1777; destroys the payment made under it; and revives the debt, and gives a right of recovery thereof, against the original debtor?

It was doubted by one of the counsel for the defendants in error (Mr. Marshall), whether congress had a power to make a treaty, that could operate to annul a legislative act of any of the states, and to destroy rights acquired by, or vested in individuals, in virtue of such acts. Another of the defendant's counsel (Mr. Campbell) expressly, and with great zeal, denied that congress possessed such power. But a few remarks will be necessary to show the inadmissibility of this objection to the power of congress.

1st. The legislatures of all the states have often exercised the power of taking the property of its citizens for the use of the public, but they uniformly compensated the proprietors. The principle to maintain this right is for the public good, and to that the interest of individuals must yield. The instances are many; and among them are lands taken for forts, magazines or arsenals; or for public roads or canals; or to erect towns.

2d. The legislatures of all the states have often exercised the power of divesting rights vested; and even of impairing, and in some instances, of almost annihilating the obligation of contracts, as by tender laws, which made an offer to pay, and a refusal to receive, paper money, for a specie debt, an extinguishment, to the amount tendered.

3d. If the legislature of Virginia could, by a law, annul any former law; I apprehend, that the effect would be to destroy all rights acquired under the law so nullified.

4th. If the legislature of Virginia could not, by ordinary acts of legislation, do these things, yet, possessing the supreme sovereign power of the state, she certainly could do them, by a treaty of peace; if she had not parted with the power of making such treaty. If Virginia had such power, before she delegated it to congress, it follows, that afterwards, that body possessed it. Whether Virginia parted with the power of making treaties of peace, will be seen by a perusal of the 9th article of the confederation (ratified by all the states, on the first of March 1781), in which it was declared, "that the United States in congress assembled, shall have the sole and exclusive right and power of determining on peace or war, except in the two cases mentioned in the 6th article; and of entering into treaties and alliances, with a proviso, when made, respecting commerce." This grant has no restriction, nor is there any limitation on the power in any part of the confederation. A right to make peace, necessarily includes the power of determining on what terms peace shall be made. A power to make treaties must, of necessity, imply a power to decide the terms on which they shall be made: a war between two nations can only be concluded by treaty.

Surely, the sacrificing public or private property, to obtain peace, cannot be the cases in which a treaty would be void. Vatt. lib. 2, c. 12, § 160, 161, p. 173; lib. 6, c. 2, § 2. It seems to me, that treaties made by congress, according to the confederation, were superior to the laws of the states; because the confederation made them obligatory on all the states. They were so declared by congress on the 13th of April 1787; were so admitted by the legislatures and executives of most of the states; and were so decided by the judiciary of the general government, and by the judiciaries of some of the state governments.

If doubts could exist, before the establishment of the present national government, they must be entirely removed by the 6th article of the constitution, which provides "That all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." There can be no limitation on the power of the people of the United States. By their authority, the state constitutions were made, and by their authority the constitution of the United States was established; and they had the power to change or abolish the state constitutions, or to make them yield to the general government, and to treaties made by their authority. A treaty cannot be the supreme law of the land, that is, of all the United States, if any act of a state legislature can stand in its way. If the constitution of a state (which is the fundamental law of the state, and paramount to its legislature) must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act of the state legislature, must not be prostrate? It is the declared will of the people of the United States, that every treaty made by the authority of the United States, shall be superior to the constitution and laws of any individual state; and their will alone is to decide. If a law of a state, contrary to a treaty, is not void, but voidable only, by a repeal, or nullification by a state legislature, this certain consequence follows, that the will of a small part of the United States may control or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the national constitution, or laws of any of the states, contrary to a treaty, shall be disregarded.

Four things are apparent, on a view of this 6th article of the national constitution. 1st. That it is retrospective, and is to be considered in the same light as if the constitution had been established before the making of the treaty of 1783. 2d. That the constitution or laws of any of the states, so far as either of them shall be found contrary to that treaty, are, by force of the said article, prostrated before the treaty. 3d. That, consequently, the treaty of 1783 has superior power to the legislature of any state, because no legislature of any state has any kind of power over the constitution, which was its creator. 4th. That it is the declared duty of the state judges to determine any constitution or laws of any state, contrary to that treaty (or any other), made under the authority of the United States, null and void. National or federal judges are bound by duty and oath to the same conduct.

The argument, that congress had not power to make the 4th article of the treaty of peace, if its intent and operation was to annul the laws of any of the states, and to destroy vested rights (which the plaintiff's counsel contended to be the object and effect of the 4th article), was unnecessary, but on the supposition that this court possess a power to decide whether this article of the treaty is within the authority delegated to that body, by the articles of confederation. Whether this court constitutionally possess such a power, is not necessary now to determine, because I am fully satisfied, that congress were invested with the authority to make the stipulation in the 4th article. If the court possess a power to declare treaties void, I shall never exercise it, but in a very clear case indeed. One further remark will show how very circumspect the court ought to be, before they would decide against the right of congress to make the stipulation objected to. If congress had no power (under the confederation) to make the 4th article of the treaty, and for want of power, that article is void, would it not be in the option of the crown of Great Britain to say, whether the other articles in the same treaty shall be obligatory on the British nation?

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II. The article in the constitution concerning treaties I have always considered, and do now consider, was in consequence of the conflict of opinions I have mentioned on the subject of the treaty in question. It was found, in this instance, as in many others, that when thirteen different legislatures were necessary to act in unison on many occasions, it was in vain to expect that they would always agree to act as congress might think it their duty to require. Requisitions formerly were made binding in point of moral obligation (so far as the amount of money was concerned, of which congress was the constitutional judge), but the right and the power being separated, it was found often impracticable to make them act in conjunction. To obviate this difficulty, which every one knows had been the means of greatly distressing the Union, and injuring its public credit, a power was given to the representatives of the whole Union to raise taxes, by their own authority, for the good of the whole. Similar embarrassments had been found about the treaty: this was binding in moral obligation, but could not be constitutionally carried into effect (at least in the opinion of many), so far as acts of legislation then in being constituted an impediment, but by a repeal. The extreme inconveniencies felt from such a system dictated the remedy which the constitution has now provided, "that all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and that the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding." Under this constitution, therefore, so far as a treaty constitutionally is binding, upon principles of moral obligation, it is also, by the vigor of its own authority, to be executed in fact. It would not otherwise be the supreme law, in the new sense provided for, and it was so before, in a moral sense.

The provision extends to subsisting as well as to future treaties. I consider, therefore, that when this constitution was ratified, the case as to the treaty in question stood upon the same footing, as if every act constituting an impediment to a creditor's recovery had been expressly repealed, and any further act passed, which the public obligation had before required, if a repeal alone would not have been sufficient.

The Founders' Constitution
Volume 4, Article 6, Clause 2, Document 21
http://press-pubs.uchicago.edu/founders/documents/a6_2s21.html
The University of Chicago Press

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