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THE CLAIM. ., irjl-,' ^ ' To the COMMISSIONERS for carrying into EffeEl the Sixth Article of the Treaty of Amity ^ Commerce ^ and Navigation^ con- cluded between His Britannic Majefty and the United States of America, on the nineteenth Day of November, in the Tear of our JLord one thoufandf even hundred and ninety-four. ANDREW. ALLEN, of London, in the Kingdom of Grtat-Britain, .J RESPECTFULI V SHEWSTH, ' THAT he is, and from Ks BlrtK ever has been, a fubjeft of the Kin^of Great-Britain, and under the allegiance of the faid King : — ^That on the iixth day of March, in the year of our Lord one thoufand feven hundred and feventy eight, the Legiflature of the Commonwealth of Fenniylvania pafled a lawx whereby they attainted him the faid Jndrrw Men of high treafon againft the faid Commonwealth, for his adherence to his faid Majefty, and confi^ated and forfeited to the ufe of the faid Commonwealth, under certain terms, all the eftate real and perfonal, of him the faid Andrew Allen, within ihe faid Com- monwealth. That [ 4 ] Tint at the time of the faiJ confifcation and foifeiturc, divers perfons with- in the fail! Commonwealth of Pennfylvania, were jullly indebted to him the (aid Jiidreiu, in large Turns of money, and in confequcnce of the faid aft of .AlRmhiy, paid the lame to perfons adling under the Executive Authority of I'cniifylvanu and the (aid auaindcr, a (chedule of whole names, and of the Turns of mont'y by them fo paid rcfpcftively, is hereto annexed; which faid ctbts, if they had not been fo paid, would now amount, principal and intereft, to the fum of (ifteen thouiand and eighty-three pounds thirteen (hillings and three pence three farthings: — That by the faid law and other afts of Affembljr cf the faid Commonwealth, all perfons fo paying fuch fums of money, were difchargcd from the payment thereof to him the faid Andrenu Allen, and confe- qucntly, he is dil'abled from recovering the fame in the ordinary courfe of judi- cial proceedings ; — Your Memorialiil therefore prays, that this his Claim may be received for the faid fum of fifteen thoufand and eighty-three pounds thirteen iliiilings and three p^nce three farthings, Pennfylvania currency, and fuch a- •ward may be made thereon as equity and juftice (hall require. Ncvemter 28, 1798, Certificate of TREASURY Payments. I CERTIFY, that upon fearching the record of the proceedings of the late Supreme Executive Council of the Commonwealth of Pennfylvania, it apnears, that the following named perfons obtained from the faid Council, patents in the name and by the authority of the Commonwealth for the feveral trafts of land annexed to their names refpedlively, fituate in the county of Northampton, and held in right of Andrew Allen, Efquire, who was by an adl of the General Af- fembly, pa(rcd the fixth day of March, 1778, attainted of high treafon ; which trafts were decreed by the Supreme Court of this State, in purfuance of the faid adl of A(rembly, to the feveral Claimants, jpon their paying into the public Treafijry the J'e'veral balances of pur chafe monies (nuith intereji } ivhich wert made payable by injialments, under articles of agreement entered into by them with the faid Andrew Alley, prfvious io hit attainder cf high treafon, for the purchafe of the faid trails of land, viz. ,^ f . , , ■ '■ ' . ■., , ■ . 'Nliints. \ ' ■ ■ • ; .: •.■■; ■. - .' . . :, ,;-. ■; . :r. ..; ;■,.. . ' r.' ■ . .■.; ,. ■• .;: ■•vi :■■ -J: ; .^"•■■t.. [ s 3 ^""- ^t;;?..*-' ' LanJ. Balance of purcha/e Date o/ Patent. Perches Money, Samuel Brown, 420 66 £ "473 « 6 \6th Dec. 1784. John Sterling, 183 no 800 \ft 1785. Margaret Wilfon ) ,,3 and Children, | *'" 897 3 James Clyde, 250 694 15 S//. Samuel Wilfon, 210 »30 1016 2 3 l-]lh May, 1785. George WolfFe, 101 80 348 20th Sept. John Clyde, 100 289 17 6 \ft March, \-^%e. Jofeph Horner, •' 18 -8 Hugh Horner, 150 62 832 19 20th oa. 240 2t^h June. JAMES TRIMBLE, Deputy Secretary. Secretary's Office, Philadelphia, Novimber 27, i 798. Copy of one of the Decrees of the Supreme Court of Ptnnfylvania. Samubl Wilson, •vs. Andrew Allen's Estate. i Decree. BE it remembered, thiit on the 13th day of April 1779, at the rity of Phi- ladelphia, Samuel Wilftn ef the county of Northampton and ftate of Pennfyl- vania, preferred a Claim to the honorable Thomas M'Kean, William Augujtui Atlee, and John Evans, efqnires, Juftices of the Supreme Court of the Com- monwealth of Pennfylvania, againil the Eftate of Andrew Men, e(c\M\rc, one of the perfons attainted of high treafon by an aA of Aflembly of faid Common- wealth, in the words following, to wit: To the honorable Thomas M'Kean, efquire. Chief Juftice of the Commonwealth of Pennfylvania, the Claim oi Sa- muel Wilfon, of the county of Northampton, and State of Pennfylvania, humbly reprefents to your Honor, That whereas, by articles of agreement duly executed under hand and feal, between Andreiu Allen, efquire, Tate of the ftate «fbfcfaid, of the one part, and Samuel Wilfon, of the county aforefaid, of the other r 6 I other part, !c is covenanted and agreed by and between the faid parties in manner and form following, viz. " Articles of agreement made at Philudel- *' phia the 24th day of March, Anno Domini 17751 between Antlmu AIUh of " cue city of J'hiladelphia of the one part, and Samuel Wil/on of Chefter coun- " ty of the other part. The faid Andrevj Allen hath agreed and covenanted* " to and with the faid Samuel H'llfon, to convey to him a certain traft of land " fituate on the Munackefy creek in Allen townfhip. in the county of North- " ampton, furveyed lor and fuppofed to contain eighteen hundred and fifty-three *' acres of land, at the rate of four pounds per acre, the ufual allowance of fix " per cent, not to be reckoned, one fourth part of the purchafe money to be " paid on the firll day of May in the year of our Lord 1776, free of intereft " till that time, and upon the receipt of this money, the faid Andrew doth co> " venant to make the faid Samuel a good and legal title to the fame: and if " the laid Samuel (hould fell to any other parts of the faid land, the faid An- " drew will make a title to each of the purchafers in their own names, the faid " Samuel or the faid purchafer, mortgaging the faid land, or their fevera) parts, " to the faid Andrevj, for the remaining three-fourths of the original purchafe " money, with interert from the faid day of May, agreeable to their feveral " (hares ; and the faid Samuel doK\\ covenant to pay to the faid Andrew for the " laid land in the manner above-mentioned, and at the rate aforefaid ; and for " the true performance of the premifes, the faid paities bind themfelves, their " heirs, executors, and adminiitrators, in the fum of four hundred pounds to ' each other, their executors and adminiftrators firmly." And whereas the faid Andreix) Allen afterwards, to wit, the fixth day of March, in the year of our Lord one thoufand feven hundred and feventy-eight, was duly attainted of high trcafon by an aft of the Aflembly of the Commonwealth aforefaid, and all the ellate real and perfonal of the faid Andrew Allen, of what nature or kind foever which the faid Andrew Allen was feized of or pofTefled on the fourth day of July, 1776, or any other perfon to his ufe or in truft for him, are by the faid law declared to be forfeited to the ufe of the State aforefaid : And /here- as by the faid aft of Affembly it is provided, that any perfon having any right, title, intereft, ufe, truft, charge, or incumbrance whatfoever, in law or equity, . Upon any meffuages, lands, tenements, &c. thereby veiled in the State, by any fettlemcnt, conveyance or incumbrance, which was binding on the forfeiting perfons, and might have affefted their eftates before the times whereon the fame Hull be veiled in the State, ihall enter his faid claim before your Honors, and the Supreme Court of the Commonwealth aforefaid are empowered to hear and determine faid cafe, and to award final decrees in all fuch cafes : And whereas it appears from the aforefaid recited articles of agreement, that if the faid Samuel W^il/on (hould fell any part of the faid eighteen hundred and fifty-three acres to other perfons, the faid Andrew Allen covenants to make a good title to each of faid purchafers in their refpeftive names : And whereas the faid claimant in purfuance of faid claufe, did fell to fundry perfons part of the afore- faid traft of land, who have Ance the faid fales entered into contraAs with the faid Andrew Allen for the payment of the purchafe money thereof, and hath alfo referved to his own ufe about fix hundred acres of the aforefaid traft, where- on the faid Samuel fVil/on hath ereftud a good dwelling houfe and barn, and hath made divers other improvements ; Wherefore the faid Samuel Wilfon prays your Honors will be p.lcafed to take the premifes into confideratioD, ana by a Decree [ 7 ] Decrre oF this Court confirm his title to the aforefaid fix hundred acrei of land ib as aforefaid occupied and enjoyed, upon hisi paying to the ufe of the State the Eurchafe money due therefor, which he is ready and willint; to do if your lonor {hall fo determine, and the faid Samutl H'il/on offer:) himfeU to prove the premifes in fuch manner as to your Honors fhail feem moil proper. In the prefence of Htnry Deunitf yaeoi Rujh, Saml. Wilso n. Philad. Jfril^ih, 1799. AND the faid JuAices taktn? the fame into confideration, as alfo the teAimo - ny both verbal and written exhibited to them in fupport thereof; do adjudge and decree to the faid Samuel JVil/on, his heirs and alfigns, two hundred and ten a- cres and one hundred and thirty perches of land and allowance, being only part of the faid traft of fix hundred acres of land claimed as aforefaid by the faid Samuel Wil/of, which fame land fo decreed to the faid Samuel Wil/on, is butted and bounded in manner following, that is to fay, bounded by land of the Widow Wilfon on the north, of Samuel Brown on the weft, of George Wolf junior on the fouth, and Monackefy creek on the eaft, beginning at a ftone in the centre of Monackefy creek aforeTaid the fouth eaft corner of the Widow Wilfon's Iand> thence weil two hundred and twenty-nine perches to a poll in the line of Samuel Browns land, thence fouth one degree weft along the faid Samuel Brown's land one hundred and eighty three perches to a poll, thence call one hundred and fixty three perches to a in the centre of Monackefy creek aforefaid, thence up the centre of the fame creek according to the feveral courfes thereof to the place of beginning ; containing two hundred and ten acres and one hun- dred and thirty perches of land, befides the ufual allowance of fix acres per cent, for roads and highways. Sec, He the faid Samuel Wil/en his heirs or ailigiw, paying and fully fatisfying to his Excellency the Prefident and the Supreme Ex- ecutive Council of the faid Commonwealth, or to fuch other perfon orperfons as they fltall depute and authorife, or have deputed and authorifed to receive the fame, at the rate of four pounds for every acre of the faid two hundred and ten acres and one hundred and thirty perches of land, decreed to the faid Samuel Wil/on as aforefaid, with lawfiil intereft for the fame, from the firft day of May one thoufand feven hundred and ieventy-fix. • ' >A trm cofy of the rtcard, EDWARD BURD, ?r»tb. Certified copies of Decrees in favor of all the other purchafers, and fiindry other documents, are filed in proof of the debts for which compenfation is claimed, but they are not neceflary to the right under^nding of the merits of the Claim, n [ 8 3 •n the COMMISSIONERS for carrying into EffeSl the Sixth Article of the 'Treaty of Amity, Commerce, and Navigation^ concluded between his Britannic Majejly and the United States of America, on the nineteenth Day of November, in the Tear of our Lord one thoufand fcven hundred and ninety-four. THE ANSWER On the part of the United States to the Memorial and Claim of Andrew Allen, Efquire. IN the Claim of Mr. Jl/en the following circumftances appear ncceffary to be flateii by the Agent for the United States, in order that the Board may clearly comprehend the defence fet up on their part. Mr. j^llen in the year 1772, by articles of agreement entered into between him and Hugh Horner and John Clyde, agreed to fell to the faid Horner and Clydt two fcveral trafts of land fituated in the county of Northampton, in the then pro- vince now State of Pennfylvania, on their paying him the purchafe money agreed on for the fame at two periods mentioned in the faid agreements. It was further agreed, tiiat on the payment of the firll fum of money mentioned in the agreement, that the claimant would convey to the faid Horner and Clyde, the legal eftate in the faid land, they giving him a mortgage on the land for the remainder of tlie purchafe money. Payments appear to have been after- wards made by the faid Horvtr and Clyde to the claimant, but not to the amount cf the purchafe money. It appears from the documents filed with the memorial, that the claimant made fimilar agreements with fundry other p"rrons for lands in the county of North- ampton, whofe demands are alfo the fubjeft of the prcfent claim. By an aft pafTcd by the Legiflature of Pennfylvanij, 6th March, 1778, the claimant was by name convidted and attainted of liigh treafon and' all his eftate renl and peifonal forfeited to the State. It is provided by the fame aft, that all perfjiii claiming any intcrcH in the eftate; fo forfeited., mnv make their claims before f 9 1 fcefore the Jufticei of the Supreme Court in writing, wRo are to proceed in x fummary way to examine into the claims of fuch perfons, to fee whether they have any right, title, intereft, or charge, in law or in equity, on any lands vcfted in the State by that a£l binding on the perfons whofe edates are forfeited by the a^, and to make final decifions in fuch cafes accordingly. In confeqnenceof thisprovilTon in the law, the feveral purchafers of land from the claimant were decreed by the Supreme Court the feveral ua&s of land pur- chafeH from the claimant, on their paying to the ilate the purchafe money for the fame which remained due with intcrelt. For this money fo paid, the pre- Icnt claim is preferred againft the United States. In the year 1792 a pardon was granted by the Governor of Pennfylvania, and the fame accepted by the claimant. A copy of which accompanies this anlwer. The defence of the United States to this claim reds on the following grounds. ill. That the claimant is not of that defcription of perfons capable of claim- ing compenfation in this cafe from the United States by virtue of the Treaty of Amity, he being an American attainted of high treafon, which attainder remained in full force at the Treaty of Peace, and fo continued until he receiv- ed a pardon in the year 1792. 2d. If the claimant was comprehended within the Treaty of Peace, then the monies due to the claimant being an equitable charge on the lands forfeited to the State, are within the provifion of the laft claule of the yh article of that Treaty, and thofe lands have always remained liable to fatisfy the fame, and are now equal to the payment of all the monies which are in juilice due to the claimant, which may be recovered in the ordinary courfe of juftice, on the Equity fide of the Circuit Court of the United States, holden in the Diftrift of Pennfylvania. 3d. No intered during the war under the particular circumftances of this cafe is judly due to the claimant. On the firft head of defence no obfervation will be made. On the fecond head of defence, if the firft is over-ruled, the Agent prays leave to obferve> At the time of the fale of thefe lands it was the intention of the parties to the fale, that the lands fhould remain the ultimate fecurity for the payment of the purchafe money. The feveral agreements (c far as they are iecited in the record, plainly difcover this to be the cafe ; for the feveral purchafers on the payment of the firfl part of the purchafe money, are to receive good and legal titles to the lands, which they are immediately to mortgage for fecuring the balance : The legal eflate never having been conveyed, the mortgages could not be given. The intention and meaning of parties to contraAs or agreements is the equity which muft rule the cafe, and will uniformly govern tribunals authorifea to do equity in their decifions upon it. The intention of the Claim- ant WM to part with the land, the intention of the purchafers was to invefl in B themfelves tij.- . tMj^iu^^S [ 10 J Uicm'tKcs the fee fimple, and an immediate conveyance of the legal ellate would have been made, had the purchafers been able to have given a fecurity> more fatisfadtury than the land. The legal eltate was then, retained in ^'.e Claimant merely for the purpofe of fecurity, and was to have been parted with on the pnyments being made, and a mortgage taken in return. Such app ar- ing to be the juftice ana truth of this cafe, the Claimant, if his right is wiihin ihu Treaty of Peace, has unqucdionably an equitable Claim on thefe lands for the purchafe money, they were looked to at the time of fale as the ultimate fe- curity for it, and the Claimant would have been obliged on the compliance with the agreements by the purchafers to have made them titles conformably to their agreements. Whatever by the rules of equity is agreed to be done mull be con- fidered as done. It was agreed that the land Ihould be the fecurity for the pur- chafe money, and this principle of equal juftice cannot be/atisfied unlefs th^fe lands are now fo confidered. By \}rv. fifth Article of the Treaty of Peace it is provided, " that all perfons who have any intereft in coniifcated lands, either " by debts, marriage fettlements, or otherivi/e, (hall meet with no lawful iui- " pediment in the profecution of iheir juft rights." This Article exprefsly revives the remedy for thefe debts, if the confifcatior; and attainder were annulled by the Treaty of Peace ; and the Claimant may purfue it, by reforting to the equity fide of the Fecierai Court, which has jurif- oiftion over fuch demands. They are the proper fubjefls for their cognizance, and in that court juftice will be truly and honourably adminiftered, and the rights of ;he Claimant, whatever they be, under the Treaty of Peace faithfully re- garded. Having fhewn that there is now a remedy for thefe demands in the ordinary, courfe of juftice, and that there is an ample fund as it is believed for the payment of them, it feems unneceflary to obferve on the charaAer of the Claimant and his ability, notwithftanding his former attainder, to maintain fuits. AU which is moft refpeflfuUy fubmitted. JOHN READ, jun. Agint for Unittd Slateu I " 1 Commissioners' Office. Philadelphia^ March 12, 1799. Presekt. Mr. MACDONALL/, Mr. RICBI, Mr. FITZSIMONS, Mr. SITGREAVES, Mr. GUILLEMARD. Ill the Cafe of Andrew Allen» On motion of Mr. SiTG REAVES, ORDERED, That the General Agent for claimanti .*<;t forth in his reply in this cafe, fuch argument as he may think neceflary for obviating the following points, in addition to thofe fuggefted by the anfwer on the part of the United States, to wit. That the title to the lands having been in the claimant at the time of his at- tainder, the confifcation and forfeiture attached upon the land^, and not upon the confideration money covenanted to be paid for the fame, by the perfons who had entered into articles with the claimant for the purchafe thereof :— thar confifcati- ons ^f lands during the war were not impaired or affefled by any ftipulation of the Treaty of 1783, but remained «s effedhial after the Peace as before : — That by the 5th article of that Treaty it was agreed to recommend to the feveral dates, that fuch confifcated lands (hould be reflored to the former proprietors, '" they refunding to any perfons who may be now in pofleflion, the bonafidt " price (where any has Been given) which fuch perfons may have paid on pur- " chafing any of the faid lands ftnce the confifcations :"-»That .iny demand by the claimant againll the faid purchafers, for the confideration money unpaid on t'he articles of agreement aforefaid, would be incompatible with the fpirit of the condition or limitation juft recited, inafmuch as the fums thusunpaid to the claim- ant, and for which he prays an award to be made In his favour, were precifely the films paid by the faid purchafers for the conveyances they received f. Dm the (late nfttr the confifcation, and which fums muft have been refunded to them by the claimant 12 craimant to the fame lanas, "/ ";";-Vjj agreements 'aiiea «n »- ,^a^ ^ ^ parchafers -"^^;^^;£j;'» do "0^^°"^^ m £g"f the 4*^ article of the Treaty of Peace. Extraa from the Minutes. G. EVANS, Secretary.. .n A, coMmssiomKsf« carnal XI fiyX^\ America. THE REPLY 0/ Andrew Alkn. ,. f ^|^»-;;f X' °IftXfi7'^'' [ '3 J bis ejiate conjifcated, will juflify the afiertion, ih^t at no f tried, from the fcace ?a the pre/ent hour, could fuch plaintiff ever fuftain a fuit, cither at law, or in equi- ty, for the recoi'ery of any fuch confifcattd debt, where the fame was contiadetl within the State in which the attainder and confifcLcion were had : And it. is with equal confidence averred, /jfcfl/ not one fugle Diilum nf any fudge in the United States can be produced in fupport of the rij^hts of fuch plaintiffs to nroi^?ry//rZ'rt«- ffcaied debts. The different decifions heretofore referred to in the claim of Dr. Inglis'w'iW be remarked upon in the courfe of this reply, rather more particularly than has hitherto been done, and fomeothercafes cited to the fame point ; and it will be ihewn, that thefe decifions upon legiflative attainders have been equally againil the plaintiffs, who adhered to their native allegiance from the commencement of the difturbances between the two countries, and openly and avowedly joined the Britiih ftandard long before the declaration of independence, and while Congrefs, and every Legiflature and inhabitant in tne country, acknowledged their allegi- ance to the Britilh crown, as againft thofe who did not withdraw until after that declaration. Whatever controul the Courts of this country might have, by writs of error or ctherwife, over attainders by proclamations if Executi-ves exceeding the flriit letter of a delegated authority, or attainders by judicial procefi having error apparent on the record, yet even thefe could not be drawn in queltion colla- terally in an aflion of debt, and in no (hape whatever can the omnipotence of the Legiflature attainting individuals byname, be queftioned ; the aft itfelf is conclu- five in the courts, and not to be contradlfted ; the parry attainted will not be per- mitted to ftiew that he was not a fubjeSi of the State ; the law has operated upon him as a traitor, and the confifcation is the punifhment of what one government calls a crime, and the other government looked upo:, as a facred and indifpenfible While it will be thus contended and clearly ihewn, that Mr. Jllen is without any remedy either at law or in equity to recover the debts due to him, in the Courts of the debtor's country, and that he is prevented from a recovery of the fame by impediments created by laiu and not by the creditor, it will alfobe infilled upon and (hewn, that from his birth he has been a real Britijh fubjeil , that he was fuch at the Treaty of Peace, that never before or fmcehashe transferred his allegiance to any other power under heaven, that by the law of nature and nations he had a right to take the part he did, and that by that aft and at that time he was guilty ofno offence againft the ftate of Pennfylvania. As the General Agent for Claimants expefts to eftablilh beyond a doubt, both by the law of nature and nations, by the conllitution and laws o\ Great Britain, by the laws of Pennfylvania, and by the decifion of the Board in a fimi- lar cafe, that Mr. Allen was at the Peace a Britijh fubjeil and compiehended in i)\cfourth article of the Treaty of Peace, it will here be premifed, that he is, with every other individual in a fimilar fituation, mod clearly and unequivocally wilh- in the ftipulation of the Jxth article of the Treaty of Amity. At the time of negociating the latter Treaty it was'wcll known to Mr. fay, that Britilh fubjefts who had refided in America previous to and at the commence- ment of the revolution, and had been attainted for adhering to the Britilh go- vernment, could not recover their confifcated debts — ^He had himfelf decided the caufe of Murray v. Martan. It ^.^gl^SSKR;- -■yr^.>» t H I Tt was well known to Lord Grenvillc, that no compenfation had been given f« 'he Loyalifts for their debts, and that the ftipulation in the fourth article of the 'i'reaty ot" Peace mjai the reafon luhy ne fuch compenfation luas made ; and the (iecifions of American Judicatories againft the recovery of thofe debts had been the fubjed of repeated complaints to the Britith miniflry. It may with con.fiden..e be alTerted that nearly all the debts due from American <:ltizcns to Britith fubjedU at the Peace were comprehended in two clafles : — Firfl, To merchants refident in Great Britain, for goods fent out to American merchants, or contracted at the ftores of fuch Britiih merchants kept by their fac- tors in the country. Second, Debts contrafted by one Britifli fubjeft to another Britifli fubjeft, both refident at the time of the contract in the Britiih American dominions, " under thefaniflion of laws common to and binding upon both," and which (lill remained honaf'le due, owing and unpaid, although the creditor and debtor had during a revolutionary war taken different fides, as inclination, convenience, or confcience, didated, and althojgh the government of the debtor's country had " taken hold of the debts." While the Crown of Great Britain by a folemn aft, deemed effen- tiat by Cingref, acknowledged the independence of the United States, and re- liiiquifhed all claims to the government, propriety, and territorial rights of the fame, there was no relinquilhment of the allegiance of fuch of the inhabitants of the colonies, as had adhered to the fide of Great Brituin, nor was it in the power of that crown to abandon them, or to f'acrifice their perfonal rights which were «' incorporeal," of which " manual occupation could not be had ;" — which were " concomitant with the perfon of the creditor, and which could not be extinguifh- *' ed by the Legiflature of the debtor's country." The rights of thofe fubjefts were as facred and as unalienable by the crown without their confent, as thckr allegiance was permanent and unalienabl e without the aiTent of the crown. There is no rifk in afferting, and no difRculty in proving, that every child of Bri- tifli fubjefts (whether the parents were natives of Great Britain or of the Britifli American dominions,) born in the United States between the Declaration of In- dependence and the Treaty of Peace, can hold eftates either of inheritance or pur- chafe in any part of the Britifli dominions, notwithftanding thofe parents uniform- ly adhered to the American fide. — That Treaty is the only point of time from which, agreeably to the Britifli conftitution and laws, the United States ceafed to be part of the Britifh empire. The Loyalifts therefore were as much Britifli fub- jefts as the merchant who had never been beyond the found of Bow Bell, and the recovery of the debts due to them by American citizens was fecured by the fourth article of the Treaty of Peace. But while the eftates, rights, and properties, of this clafs of Britifh fubjefts, which had been confifcated, entered upon, "fold, re-fold, and pajed through fuch " a 'Variety of hands, as to render refloration impraSlicable" were left to recommen- dation by the prior part of the fifth article, there were certain debts in tjuhich the Loyalijh were more peculiarly interefted, and which were not provided for in the fourth article, as the creditor and debtor might not always be on different fides ; iheie were particularly the objeft of the ftipuTation in the latter part of the fifth article- [ ] article. It is a well known principle in the law of England and of the United States, that the note, bill, bond, or other contrafl originating a debt, is the pro- per evidence of the debt, a mortgage or any ftriftly legal title to real or other ef- tate pledged, and accompanying the fpecialty or other contrail, is only confidered as a collateral fecurity ; the creditor has his double remedy ; he may purfue which he pleafcs ; one remedy however is perfonal and tranfiiory with the pcrfon, the other local, with the mortgaged premifes. — Many of the Loyalifts attainted by the fame law for their adherence to the Britifli government had been fi lends, neighbours, and had had many pecuniary tranfaflions with each other in America, as well as with their fellow fubjet^s in Great Britain, and with others who remain- ed attached to the American caufc and became citizens of the United States. Their realeftates which had been confifcated were in many inftanccs pledged for the payment of thefe debts. In Georgia, for inftance, the Legiflature fuftered no debts to be paid out of the fal'es of confifcated eflates, except fuch as were due to citizens well a{Fe6led to the caufe of American Independence. In other States, onfifcated lands were fold during the war upon credit, and at the times the in- Halments became payable the money had funk to very little, and yet the States received the nominal fums in paper, as they could not avow the depreciation without ftamping their tender laws, which they were obliged to keep in force, with the character ot iniquitous, or without making one law for contracts with the State aad its citizens, and leaving in force a different law to regulate con- trails between individuals. — With refpe£l to the demands againfl theie confifcat- ed eflates, the creditors were called upon to prefent them within limited periods ; and when the amounts due to citizens in the country wereafcertained, the depre- ciated paper of the country at its nominal amount was the medium of payment — This in many infiances was not worth receiving — and the uncancelled evidence of the unfatisfied debt due by the- loyalifi remained with the creditor, while the proper fund le difcharge it had been feized by the State. The flipulation in the^ clofe of the /jftb article was necefTary, in order to compel the very creditors of thefe loyalifts to refort to the proper fund for their debts, inflead of following the perfon of an almoft ruined debtor, who had fcarcely any thing but the bounty of his government tofubfifl upon ; and without this flipulation^ not even equity could interfere to prevent the creditor from eleAing his tranfitory adlion, inHead of procefs againfl the property pledged. — Again, if Mr. ^llen had mortgaged liis lands in Northampton to Mr. Galuway, inflead of felling them to fettlers who remained citizens of America, the lands would have been forfeited and fold as the property of Mr. Jlleti, and yet the legal title was not in him, the equity of re- demption alone would have been his ; — the IlriAly legal title would have been in Mr. Galloway ;— but by the law ofPennfihania the lands and debts of each wers confifcated, and each was dead in the eye of that law as to all civil rights ; — by the law of EngUnd " they were both BrittJhfuhjeSs, hound by all their legal contrails, " and armt<^ with all the legal rights which any other fubjeS had ;" — but the lien on the particular property which had been fpecifically pledged for the payment of fuch a debt, was not fecured by the fourth article of the Treaty of Peace, which related to creditors on one fide and debtors on the other ; the de/criptio per- fenarum xhetefoTC in the/ourth article was dropt, and the more general expreflioa *' allperfins having any intereji. Sec," Wis adopted, re ' ^rinjO; it immaterial, whe- ther the creditor and debtor were on the fame fide or on dimrent fides. Althougli . '^Vov »' ''■«»***^ .'3 ^ ' -" " " " ■ •►,"t-«r-.^j|if.N„^iS., y 4ilthougli the fourth and the ^//> articles of the Treaty of Peace, arc tfiu» fotally dilkiiift and unconnedlcd, and relating to difFercnt objefts, the former tO' all creditors cf all debts he/ore ccnira/lcd, where the creditor and debtor were c>! different Ji:!es, without any dillindion or exception of real Britifh fubjefl or American Britilh I'ubjed, coniilcation or feqiicflration ;— and the latter to confif- catcdeftates, rights and properties, (other than debts) and tolicnjupon fuch pro- perty, without regard to the fide on which the holder of of fuch lien was ; and al- though the two articles arc exprefled in language plain, concife and intelligible,' yet ihe Courts in the United States have made a diftindtion in fuits brought on tl'.e faiih oi i\\s fourth article, between real Britijh Jubjeiis, that h merchants reji- diU ill Great Britain, and Jm.-rican Britifi fiibjeits or loyalifts, and have con- founded the ftipulation in \\\e. fourth article with the recommendation in the^/j& in all fuits in which the latter have been plaintiffs. This conftruilion was well known to the negociators of the Treaty of Amity, and the fixth article clearly embraces the cafe of thefe fubjefts by the expreflions " divers Britifli merchants and ethers his Majejly' s fubjeBs ;" this article however, contains no ftipulation for a further removal of lawful impediments, but it contains an exprefs ftipulation tO' compenfate all the lofles created by the impediments which had exifted. With thefs preliminary obfervations, the General Agent for Claimants will proceed to examine the dilFerent decided cafes, afFefting the debts due to Britiftv fubjcfts, attainted or profcribcd for adhering to the Briiifti fide in America. tpnffatfiufettgf. THE firft cafe which will be remarked upon is that of A/wr^ v. PaUh-^Thh fuit was brought for ihe fole purpofe of trying in the Supreme Court of the State,- the right of James Putnam, Efquire, to recover a debt contrafted before the re- volution and due by a citizen of MafTachufetts ; — the debt was admitted to have been bona fide contrafted before the Peace, and that it remained unpaid, and the following ftate of fafts was fubmitted to the Court, — ^" And the parties further " agree, that the faid James Putnam, after the 19th day of April, 1775, joined " the fleets and armies of the King of Great Britain, removing all political " and civil relation to this Commonwealth, then State, and thereby became " an alien, of which the faid Jatnes, at a libel duly profecuted according to " law at a Court of Common Pleas held at faid Worcefter, on the fecond Tuef- " day of December, in the year of our Lord, 1780, was convidled, and that " the faid James was included, named and profcribed in the aft of this Com- " monwealth, commonly called an aft for confifcating the cftate of abfentees ; " and that the faid James Putnam at the time of extending the faid executions, " and executing the faid deed to the plaintiff, and at all times after the faid igth "day t t7 ] " d<^ of April until his deceafe, nuas an alien, being a fubjedl of the faid King " 01 Great Britain, holding and executing a commillion under him, and owing <' allegiance to the faid King and his government." The above is dated Sept. 1791. The (late of t^-. cafe, and the documents referred to in and accompanying it, prefenied thj following points to the view of the Court : I ft. That the debt was contrafled before the peace, and remained unfatisiied. 2d. That the creditor was a Britifh fubje£l, and had never been a citizen of Maflfachufetts after the Declaration of Independence. 3d. That the debtor was a citizen of the State. 4th. That the eftate, real and perfonal, of the creditor had been confifcated, and himfelf profcribed. Although from the loofe mode of praSice in the State, the Treaty of Peace is r.v* brought into view on the record, yet it was, in faft, the fole ground on which the arguments for the plaintiff proceeded ; it was impofllble that it could be kept out of view, and as it was not only a public law, but a fupreme law of the laid, the Court were bound to take notice of it. Jurigment was rendered for the Defendant. Murray v. Marian. May, i79i' THIS was an aftion of debt brought in the Circuit Court of the United States, in the Diftrift of Maffachufetts, by >;&« Murray, Efquire, of Saint Johns, in the Province of New-Brunfwick, againft fTilliam Marean, of Wor- cefter, in Maffachufetts, or. a bond dated the sth of March, 1773. On the record it appears. That the plaintiff was a Britilh fubjea, the defendant a citizen or inhabitant of Maffachufetts, and the debt contrafted before the peace. C The ' "^T"* ¥f T '8 ] The ilofL-nJant admitting the debt, relied wholly on the plea of the aft df confifcation, '• and thai thereby the governmetU and people of Maffachufetts were declared to be in the real and aftual pofleflion of all the goods and chatCeU, rights and credits, &c. of the faid J')hn Murray, without fjrther enquiry, ad- judication, or determination." To this plea there was a demurrer and joinder according to the fimple formi cf pradice in the State courts, and by that plea, demurrer and joinder, the law of the State, the Treaty of Peace, and the operation of both, were as fully be- fore the court as they could be by any of the prolix and expenfive pleadings common in other States. The judgment of the Court is on the validity of the plea, and not upon any irregularity or departure in the pleadings. " It is confidered by the Court •' that the plea in bar is good, and that the faid John Murray recover nothing " by his writ," &c. Thefe debts being feverally under two thoufand dollars, no appeal or writ of error could be profecuted. By thcfc decifions the point was fettled, that none of the perfons named in the laid law could recover any of the debts due to them from citizens of Mafla- cliufetts, and contrafted before the profcription and confifcation ; and yet both thefe plaintiffs were officers of the Crown before the revolution ; both left Maf- fachufetts before the Declaration of Independence ; and neither of them had been even tacitly a citizen of Maflachufctts, or any other State, or had even been within the limits of the State, or had been guilty of traiterous confpira- cies againll that State, any more than Sir Henry Clinton, Lord Dunmere, and Governor Tryon, had againft the State of New- York ; but the law had afted upon them as traitors, criminals, and confjiirators ; the forfeiture of their bona Jide debts had been legiflatively inflifted as a punifhment for a fuppofed crime, and the Courts held ttiemfelves obliged to confider them as criminals, and the forfeiture as complete. Thefe are the only two decided cafes in MafTachufetts, in which the cffeft and operation of the confpiracy aft were brought before a Court in fuits between Hritifli creditor and American debtor; but there is another document before the Board in the Claim of Jonathan Simp/on, in which the above two cafes are referred to, and which is entitled to all the weight of ? judicial decifion : — It is • .1 official report of the Attorney General of the State to the Houfe of Repre- fentativ... on a queftion relating to the confifcation of a Atht d\xc io Jonathan Sjmpfon. Speaking of the aft of April, 1779, he fays, " By this aft the eftates *' of the perfons named in it were confifcated without any further trial or adju- " dication, as has been fettled by the judgment of the Supreme Judicial Court " of this State, as well as by that of the Circuit Court of the United States." And in another part of his report he fays, — " Upon the quedion which I am " direfted to anfwer, whether the note given by //anv/ow Gray, Treafurer to "' Simfjht:, is the propertyof the Commonweallh, / can only fay, that all debts due " Jyoiit '""^..:* — .^m:^:^'SmmjL^ [ '9 I •' from individuals or bodiis of men to tho/i per/on i nvho art namtd in the aff for " confifcating the ejiates of perfons called confpirators, were, en the pajjing that a£t, " vefled in the ^onjernment and people of the State, ivho are fucceeded bj the Com- " monwealih, ivi/hout any further trial or adjudication ;"—dHed Bofton January 22d, 1795. n;n ALTHOUGH the General Agent for Claimants has not been able to find that any judgment has been rendered aeainft any of the perfons named in the aft of attainder of New York, yet he is informed, that the univerfal opinion that fuch fuits could not be fuftained, was the reafon why thofe which had been inftituted were difcontinued ; but the liquidation made the 13th of June 1788, by yohn Slofs Htbart, Efquire, one of the Judges of the Supreme Court of the State, of the debt due by N. Barlow to Bilhop Inglii, fubfequent to the law of February 22d, 1788, repealing all afts repugnant to the Treaty of Peace, and fubfequent alfo to the a£l of the 2 1 ft of March 1788, relating to forfeited ellates, is tantamount to a judicial decifion, that no part of the aft of attainder was deemed to be repealed by the law of February, and that the coUefUon of every debt due to every perfon included in the aft of attainder, was enjoined by the law of March 1788; indeed the words of this latter law are too plain to require the aid of judicial decifion to explain and fix their meaning :— The aft of at- tainder of New York ipfo faSo attainted and convifted the perfons therein named, as the " moft notorious offenders," and clearly proceeded againft them as criminals againft the State :-^Such is the declaration in the law, and the. Legiflature were conftitutionally prohibited from pai&ng afts of attainder for dimes, " other than thofe committed before the termination of the then war." il^ortB Carolina, IN the State of North Carolina perfons of a certain defcription were called upon by law, either to take an oath of allegiance and abjuration or depart the State, leaving it optional with thofe perfons to adhere to their native original alle- giance, or to become citizens of the new government :— Their debts which re- mainedr ■j,*_^^llg^t*mmrr ■w«ir--, !».»».- [ 20 J maincd uncolleflcd were afterwards confifcated, as well as their real eftates which had not been difpofed of for a valuable confideration aftually paid before their de- parture ; but there was no attainder of their perfons for adhering to the firiti(h government, no Legiflative convidlion of crime on that account : — Their depar- ture had been acquiefced in by the Hate. Yet it was not until 1796, chat any judgment or recovery by any of thefe Britilh creditors could be had and obtained in North Carolina, and in the opinion delivered by Chief Jullice El/ivorih, there is to be found the moft decided proof, that if they had been attainted and con- viftcd for that adherence, inftead of being permitted foto adhere, they could not recover their debts. " It is true (fays the Chief Juftice) that on the fourth of July 1776, when North Carolina became an independent State, they were in- habitants thereof though natives of Great Britain, and they might have been claimed and holden as citizens, whatever were their fentiments and inclinati- ons. But the State nfteriuards, in 1777, liherally ga've to thetn, •• tered. in South Carolina, all debts to whomfoever due were excepted from " confifcation, as were in Georgia thofe oi Britijh merchants and others refidingin " Great Britain; and in the other States, except this, I do not recolleSl that " British Debts ivere touched" — (Hamilton v. Eaton), As it is impoilible to fuppofe the Chief Juftice to have been unacquainted with the feveral laws of the States of Maffachufeits, Connefticut, Rhode Ifland, New York, New Jerfey, Pennfylvania, and Georgia, profcribing and attainting the perfons, and confif- cating the eftates of and debts due to thofe who adhered to the Biitifll government, it is evident he does not confider the debts due to Dodlor Inglit or to the prefent Claimant, as Britifh debts, becaufe the States of New York and Pennfylvania did not confent to their exercifing a natural and inherent right. The above opinion was delivered a few months fubfequent to the decifion of the Supreme Court in the cafe of Jones's Executors v, Hjlion, Archibald (^ fohn Hamilton •v. William Moore. 7 Circuit Court of the United States y Diftrift of Georgia. THIS was an adion of debt on a bond dated 19th of April 1776, for Cso;^j|. ^».», r " ] counfcl !n Georgia) would have inclined to the opinion, that the plaintifts with' ilif aflent of the government of North Carolina, had made theircledtion to con- tinue britifti fubjefts inftead of becoming citizens, yet the opinion delivered by him in this cafe fully juftifics the aflcrtion, that all the ftrong and general ex- preflions midc ufc of a few months before by the fame Judge, in the cafe of "Jonti V. Hytion, were meant to be applied to (uch creditors as FarreJ tind Johis, merchants of Briftol, who had always refided in England, and not to American Lritifh fubjcfts, whole debts had been forfeit. J, and themfelves profcribed for refufing to abjure their original allegiance, and to become citizens of the United States. \>»i (Dtotgia. THE State of Georgia paflied its laws, — Firft " An A£l for attainting fuch " perfons as arc therern mentioned, of high ticafon, and for confifcating their " eftatcs real and perfonal," &c. And Jecondly. «• An Aft for infliAing penalties " on, and confifcating the cftates of fuch perfons as are therein declared guilty " of high treafon, and for other purpofes therein mentioned"" From the face of thefe a£ls, and from the pofition Georgia afTumed when the oppofition to the a£\s of the Britifh Parliament took place in the other colonies, fome material points are apparent. The lirfl of the afls above alluded to, conta ns in its preamble, a declaration that the King of Great Britain on the 19th of April 1775, did commence a cruel and unjuft war againll the good people of America, and that thereby he 6\i forfeit inA forefault every right and title to the allegiance of the faid people, and that the powers of government, incapable of annihilation, did devolve upon the people for the exercife " of the fame, and the faid people did, as of " right and juftice they ought, enter into a full exercife thereof for their com- " mon fafety;" — and alTuming the faid 19th of April 1775, as the time at which all allegiance was transferred uom the king, and reverted to and devolved upon the powers which aiTumed the right and exercife ; the aft proceeds " and ivhert- " ai, various perfons inhabitants of this State, in contempt of the faid allegi^ " ance and duty fo transferred as aTorefaid, did traiteroufly avoid the fame, &c. " and whereas, it is but reaibnable and jud, that the ellates both real and.perfonal " of all fuch perfuns reHding within this State, on or flnce the faid 19th day of " April, ivho hawe refufed their allegiance to the governing pcwers (hould be for- *• feited and confifcated," &c. And the aft then proceeds to attaint Sir Jamei Wright His Britannic Majefty's Governor of the province of Georgia, Jamt Hume, [ *.1 ] and afterwarJs Chid of others who had left Humf, Efqu'ire, the Attorney Gener«l of the faid King, Jufticeofhii province of Kail Florida, and a number _. Georgia long before the Declaration of Independence, who never had been even inhabitants, much left citizens of the State, and who on the faid i9thday of April 1775, were in the adtual, peaceable and legitimate exercil'c of the powers of government ir ihc then province of Georgia. The faft is, that the province of Georgia had not united with the other colo- nies in April 1775, but had refufed fo to do— Georgia had not been rcprefcntcd in the firil Congrcfs, or in the firft fefllon of the fecond Congrefs ; it was not until the 15th July 1775, that any dclcfjates were appointed from that then province, and then were appointed, " to do, tranfafl, join, and concur with the feveral dc- << legates from the other colonies and provinces upon this continent, in all fucK " matters and things as (hall appear eligible and fit at this alarming time, for " the prefervation and defence of our rights and liberties, and for the reftoration " of harmony upon the coiiAitutional principles between Great Britain and " America." — {^Firjl Journals efCcngre/s, 97, 172, 195.) The (irdfeflion of the aft of 1781, attaints by name the individuals mentioned in the firll aft, and feveral others, " for traiteroufly adhering to the King of " Great Britain," &c. but none of the perfons fo named are called citizens of Georgia; one is partictilarly called oi South Carolina ; Bajil Co'wper, and IVilliam Telfair two of the perfons named, were merchants reflding in London ; and the heirs, devifees and afligns of others, are attainted without any name. — When the Legiflature chofe to refer to citizens of the State, they ufed the proper cxprefli- on, as in the third feftion of the aft of 1782. The ftrong fimilarity between the laws of Georgia and th.i aft of attainder of New York, juftify the application of decifions under one to the cafes of perfons included in the other, had they brought fuits. This leads to the c&k of Douglaji v, Stirke, in the Circuit Court of the United States for the North Carolina dillrict. May term, 1792. From a certified copy of the record in this cafe it appears, that Samuel Doug, lafs of the ifland of Jamaica is plaintiff, James Greenbow of Effingham in the State of Georgia, planter, and Hannah his wife. Executors of John Slirke, de- fendants, and the debt to have been contrafted before the war. The debt is admitted, and the defendant relies fr: his plea upon the afts of attainder and confifcation of Georgia :— The plaintiiF replies with the Treaty of Peace, and the conilitution of the United States making the fame the fupremc law of the land : — On demurrer the following judgment is given :— " All and Angular the premifes being fecn, and by the Court now here more " fully underftood, and mature deliberation being thereon had, it feems to the «• faid Court, that the plea aforefaid by the faid, &c. in manner and form *' pleaded, and the matter in the fame contained, are good and fufiicient in law " to preclude the fame Samuel Dougla/s from his aftion aforefaid, &c." Thus, ''S'-'^y^ar 'iw«JS-, mmm mm ■■n [ H J Tliii.-, we have the authority of the late Chief Jurtice of the United States, tiv« prefent Chief Jullice, Judge Cujhi!:^, Judge Pater/on, and Judge Ii-etiei/, be- iiJcs the diftria Judges Lcivtll, Peitiil ton, and Clay, the Judges of the Supreme Court >.f Maffachulk-tts, the official letter of the Attorney General of Maffachu- fftt:, aiid the liquidations of the Judges of the Supreme Court of New York^ in (upport of the affer'.ion, that '« in the ordinary courfe of judicial proceedings, Britilh fubjtfts who were attainted by American Legiflatures, cannot recover their jull debts ; and that diftinftions in the American Courts are made between American Britilh fubjefts and re&l Britilh fubjeds ; and it is evident, thr.t no fuch dirtiiiaion is to be found in the fourth article of the Treaty of Peace. A FEW ["marks will now be made upon attainders in Pennfylvania :— Thefe are of three kinds, FirJ}, by being particularly named in the aft of attainder, Secomily, By being called upon by proclamation of th^; Supreme Executive Council, to furrender and abide a trial, and neglefting to comply. Thirdly, By conviftion on indidment, or procefs to outlawry. The tirft of thefe could not be controuled by the Courts, and could only be re- verfed by an a£t equal to that which in flifted the penalty. The power of the Legiflaturc could not be queftioned, and if they had attainted vi wandering Tar- ter k eating horfe flefti, a Turkilh Mufti for refufing Madeira, or an Indian Sachem for drinking too much rum, and either of them had afterwards been found within the State, the Courts would be obliged to confider them as traitors. As to tiic fecond clafs, the power delegated by law to the council being fpecial, if a ^erfra attainted by proclamation in due form had b£en found in the State before the Peace, his innocence cr guilt would have been immaterial ; two queftions and o ily two could have been brought before a Court : Firft, as to the identity of pcrfon ; fecond, whether he had became a citizen of the State, before the allt'ged a£l of treafon ; becaufe the power of the council was confined to iffuc proclamations railing upon Inhabitants or citizens of the State, The third clafs being for ciimcs found by a jury to have been committed within the body of a county, need not be remarked on here ; judgments on im- proper convidions .night have been arrefted, or informal outlawries reverfed. A [ -'5 1 A decifion of the higbeft authority in Pennfylvania on an attainder of the fecond dcfcription will cilablilh clearly thf fe points. Firjl, That Mr. Allen was a Britilh fubjeft. Second. That he never was a citizen of the State of Pennfylvania, and com- mitted notreafon againd it. Third. That notwithllanding this, he is confiJereJ as lawfully attainted, and of courfe incapable of maintaining any civil fuits for any debts contraded in Pennfylvania prior to that attainder. It is here admitted, that after the Treaty of Peace, no criminal profecution would have been permitted againll Mr. jillen on account of the faid attainder, but it is infilled, that the confifcation pf the debts due to him before would not have been confidered as annulled becaufe accompanied by attainder ; as for the pardon which fome of his friends applied for without his knowledge, and before his arrival in the country, it was ii mere piece of wafte paper, as to any opera- tion it could have in enabling him to recover the debts which had been paid into the treafury. It is not to be fuppofed that Mr. Allen would have impoliiely thrown away or refufed ac spting the paper, which the afFeftion of his old friends had induced them tufolicit, nor does the General Agent know, whether Mr. Jllen ever did really fee the pardon, or a copy ; this he well knows, tha,' the. -i is no power in the Gover lor to draw out the money paid into the treafury by the debtors of Mr. Allen, oi lO enable Mr. Allen to recover it from the debt- ors themfelves. Nor could that pardon, or any other adlof the Governor, natu- ralize or make a citizen of a Britifh fubjefl. The decifion alluded to above is in the cafe of the Commonwealth of P^nn/yl- •vania V, Chapman, i Dallas, 53. As this cafe is reported at large, the General y^gent will content himfelf with barely Aating the points which appear clearly to be admitted or decided.— They are thefe. FirJ}. That in civil wars every man chufes his party, and that Pennfylvania was not a nation at war with another nation, but in a flaic of civil war. Second. That on the difTolution of the old government, although th? voice of the majority mud be conclufive as to the adoption of the new fyRetn, yet that the minority have individually, an unreftrainable ri^ht to remove with their property into another country, and that a reafbnable time .liould be allowed for that purpofe, and that none are fubjedis of the adopted government but th.. fe who had freely aflented to it. Third. That the Legiflature allowed a :hoice of his party to every man until the nth of February 1777, and that no aft favouring of treafon, done before that period, fliould incur the penalties of the law of that date, which had no retrofpefl. D Fourth. r ' m r [ 26 ] Foi.nh. That there was a fufpcnfion of all laws from 14th May 1776, until I ith of l\bruary 1777, and if there were no laws to be obeyed, no otie v.ould l)c Jtxi: ,d a iubjcd ot the State. nnh. That ncvcriiiclefs, although ^x fofl facio\vfi% generally fpeaking are iiiiiull and improper, yet the Legiftature, if they were imprefled with the necef- fuy of the cafe, had incontrovertibly a right, to declare any pcrfon a/r«/Vorwhff had gone over 10 the enemy, and Hill adhered to them. The rcfuhwas, \!n?iX Samuel Chapman the defendant, who was born in Bucks county l'cn!iry)>'3nia, aiui who continued to refide there until December 1776, long artcr the Declaration of Independence, was neverthelefs a Britilh fubjeft, and not a fulijcd of the State, and therefore not a perfon whom the Council were authorized to attaint, and he was accordingly acquitted. The inference from the laft point is, that Mr. Jllen, who was equally a Britifh' fubjeft, who h.id equally a right to make, and did adlually make his eleftion, .^nd who had committed no treafon againft a State in which there were no laws to obey, was neverthelefs legally made a traitor by the omnipotence of a Legifla- tivc aft. It is evident from whf has been ftated, that Mr. Alien is, and from his birth has been a Britifh fubjeft, as well as Biihop Inglii, and of courfe en- titled tocompenfation for debts loft by the operation of lawful impediments con- trary to the 'frenty. Aftrr the unanimous decifion of the Board, that the Bifliop of Nova Scotia is to be considered as a fubjedlof His Britannic Majcfty within the meaning of the Treaties, and the refolution moved by one with the approbation of two other Commiffioncrs (being a mniority of the Board) that proceedings at law now, in fuch cafes, are not requii.te, and that the laws and decifions on them already laid before the Board were fuch as to fatisfy the confciences of that majority, that fuch proceedings would be as hopelefs as unneceflary, the General Agent for Claimants would not have prefumed to offer any remarks on that part of the anfwer in this cafe, which ftates that the Claimant can have redrefs on the equi- ty fide of the Federal Courts. The order, however of the 12th of March, to reply to certain points therein fuggefted, in addition to thofc made in the an/ix>er, mull be his apology, as well for the repetition of former obfervatiotvs, as for the addition of the others contained in the preceeding pages. The points fuggefted in that order will now be obferved upon, and if that order had never been made, the points therein fuggefted would have been the only ones confidered in the reply of the General Agent for Claimants; y//«/aclear ftatement of the fituation a i rights of the contrafting parties at the time the Claimant was attainted, w.iile it will obviate the points fuggefted in the order, will at the fame time prove, that the monies due to him are not an equitable charge on th: lands. Mr. .-////,'/ fold to the feveral perfons mentioned in his memorial, certain traft? of land in the county of Northampton, and in order to fecure the payment of the purchnfe money, notwithftandinc the purchafcis took pofleffion of the lands, he t 27 ] Tie retained his original fee fimple, of whicli he was not to be divclleJ, unlcfs he received a part of the money, and had the land re-conveyed to him by way of mortgage, for the refidue ; — Mr. Allen never had an equitable charge on the lands, nor did he or the purchafers ever entertain an idea, that in any poiltbic contingency, he (hould acquire fuch an equitable charge. — In the firft inllance and before conveyance, the bond or articles of agreement manifefted the term* of the purchafe, a compliance with which by the purchafer was efFeftually lecur- ed by the feller's retaining the fee.— In the fecond inllance, and after a convey- ance made by the feller, the mortgage executed by the buyer would have re- placed the fee fimple in the feller, with him to remain, until he received his purchafe money : fo that in each cafe, the right of the feller was a ftridly Icg^l one, kept up for the exprefs purpofe of compelling payment of a debt. As Mr. Allen never conveyed the ftrift legal title, it may not be amifs to flicw what, agreeably to the laws and cuftoms of Pennfylvania, were the rights of the purchafers.— -By their contrails and pofTeflion they obtained equitable titles to their lands, under which they Could either recover or defend in ejeftment ; — By complying with their contradls they had a right to a conveyance of the legal fee from the Teller, nor could they be lawfully turned out of pofleflion by the feller, by ejeftment or otherwife, even after a breach of contraft by not being .punctual in the firft, or any other inftalment, if at any time before trial they were ready to comply with their contradl ; and although the lands from any cir- camftances might have increafed fifty fold in value, legal intereft from the time the payment ought to have been made wouUl be all the additional fum the feller f the eftatc had been capable of divifion But '.vould the fons thus veiled with the title conveyed by the deed of the State, be confidered as purchafers or as heirs } llridly and legally fpeaking they are puichafers ;-— but in Pennfylvania, lands inherited by and in the pofleflion of heirs, or purchafers rnder them, arc aflTets for the payment of the debts of the anceftor from whom thofe lands defcended ; and if any debts due by the deceafed pur- chafer under the articles from Mr. Allen, had been brought forward, even after the deeds from the State to the heirs, and no perfonal aflets were left, thefe lands would be liable in the hands of the heirs for the debts of the anceftor, notwithlianding the lands were vcfted in the fons by the deed of the State ; and yet thofe lands never would have been liable in the pofleflion of the anceftor, the heirs, or purchafers under either, for any debt due from Andreiv Allen wtkfs (I judgment had been obtained againit him in the county of Northampton prc-vious to the articles, or unlefs the lands had been levied upon by a tejlatum from fome other county. True, it is, that the debts due from the purchafers to Mr. Allen, might have been the fubjeft of attadunent in the hands of the debtors, if Mr. Allen had owed any debts and had at any time been a debtor within the meaning of the attachment laws. It on the other hand, fuch deceafed purchafer under the articles had left no perfonal cllate to pay his debts, and his heir had paid the balance due to Mr. lilleii, and had obtained a convey.mce from the Cotnmonwealth, that land would ftill [ 29 ] rtill be liable for the other debts of the anceftor, to the amount of the difference between the principal and interell due to Mr. Allen at the time of the anceftor's death, snd the value of the land. From the mode of acquiring original titles to lands in Pcnnfylvania, and from the circumftance of there being no Court of Chancery in that ftate, to compel the fpecific performance of agreements, poflTeflioii and the equitable title has been confidered as every thing, and not unfrequently, under an equitable title only, pofTeflion has been recovered in ejc£lment againfl: the legal title. Previous to the revolution, and until the land office was opened fince the Peace, (except for city and town lots, and farms in the old fettled counties of Philadelphia, Bucks, and Cheller) nine tenths of the lands in Pcnnfylvania were held, enjoyed, and improved under equitable titles ; — a warrant to furvey a particular traft, and a furvey identifying and defcribing the lands intended tc be granted, was all the title the fettlers had. On fome of thefe warrants only the bare office fees had been paid, and all the pu'-^hafe money remained dtje ; on others the purchafe money had been paid at the time of taking out the warrant, and nothing remained due, unlefs there were fome overplus acres in the furvey, beyond what the warrant called for ; and in fome inftances, where a fufficient quantity of unappropriated land to fatisfy the warrant did not remain in the place defcribed, the purchafe money had been overpaid ; and yet the legal title remained in the proprietary in all thefe cafes ; but the title of the owner was not rendered lefs equitable becaufe no part or but p. part of the purchafe money was paid, nor was it rendered more le- gal where it was overpaid; and in no inftance could the legal title be demanded without a certificate from the Receiver General that the arrears were paid. If the Commonwealth had attainted the proprietaries, would it be pretended that thefe lands were confifcated becaufe the legal title remained in the pro- prietaries, certainly not,— »And after fuch attainder and before any payment of arrears, any equitable holder might bring his aftion, and recover his damages, for an injury to the freehold, and no plea, no evidence that the title was not in the plaintiiF could have been fuftained or admitted in any Court in the State ; the attainder .. d confifcation would have effefted nothing but what the proprie- taries had a right to receive, to wit, the arrears of debt due for the land. Had an aft of Affembly of Pcnnfylvania been paffed conformably to the re- commendation mentioned in the Jlfth article of the Treaty of Peace, Mr. Allen would have been reftored to the pofleflion of his lands in the county of Berks which were confifcated and fold, and would not be required to pay any thing for them ; and that, whether he was confidered as a real Britijh fubjeSl, or as a per- fon refident in diftrifts in pofleflion of His Majefty's arms, not having borne arms againft the United States ; — -perfons of other defcription than thefe, (more obnoxious than the former and not included in the firft recommendation) are the lafl mentioned Perfons, who were to have been the fubjedls of the latter recom- mendation, and who were to have paid on being reftored :-^But Mr. Allen would not have been entitled to reftitution of the lands in Northampton, which he had -^ -^L.pvwmifp [ 30 ] t^i! fold, and the pofleffion of which he had delivered to the purchafers ; be- ta ufe he had no claim upon them for any thing but a debt the recovery of whidl wn^ ffcurcd by the fourth' article ; and the inimenfely valuable improvements on t'lc lands, and their increafcd value, were tlic cffeds of the induftry, labour, and cvpcnfc of the owners, and on thefe he could have no claim further than for hii iiucTcll accrued ; and he was able at the peace to perfor n his part of the con- tract, which was nothing more than for the delivery of the parchment evidence ot the legal title, and a conveyance of his right to the fame. — He never cove- nanted againft the irrefiftible force of an adl c^i attainder, the narrow conftruc- tion of a Treaty of Peace, or that the lands flioald not be fwallowed up by an earthquake. The General Agent refpeftfuUy trufts, that in other arguments it has been Jhewn, that all lawful impediments to t!.e recovery of all ?o/»fl _/? nia, though neceflary to qualify for ofHce: However juft the dofliinc may be, that the allegiance of Britiih fubjcfts is unalienable without the confent of their Sovereign, when it only concerns queftions between them and their King, yet a Britiih fubjeft having made himfelf a member of another State, may commit ircafon againft that^ State and be punilhed by it for his crime. For example, a Britifh fubjcdl who has emigrated to the United States fince the Peace, and has become a citizen thereof, may commit treafon againft the United States in the confideration of their municipal laws. Though Andreiv Allen after being a fubjeft to Pcnnfylvania joined tl;c Britifli forces in December, 1776, and rcturr."-! to his natural allegiance ; this did noi diffolve the right of Pennfylvania to hoid him as its fubjedl, and as its fubjcdl to* punilh him. Having done this by a legidative aft, it onlv remains to be confidered, whether that aft was repealed as to debts by the fourth article of the Treaty of Peace. The Agent for the United States coitcnds that it was not, and that the debts forfeited for treafon during the war were not embraced by that a.ticle, becaufe Andrei\j Allen, and all others in tne like predicamcnr, were civily dead as to the United States, and were not creditors when the Trea- ty of Peace was concluded of the debts that had been forfeited. The Stipulati- on " that creditors on either fide (hall meet with no lawful impediment to the rc- " covery of the full value in fterling money of all bona fide debts heretofore " contrafted," does not include perfons who as fubjefts had been deprived of their eftates and debts for their criminal conduft. Andreiv Allen having joined the American fide, .js is proved by the higheft evidence, the legiflative aft of Pennfylvania, and ha.'ing dfferted it and thereby incurred a forfeiture of all his rights, is in no point of view to be confidered as a creditor on the Britifti fide. The Agent for the Claimant has introduced the cafe of the Commonwealth of Pennfylvania againft Chapman, adjudged in the Supreme Court of Pennfylva- nia, as a decifion among other points, that Andrew Allen was a Britifli fubjeft ; being reported at large in firfi Dallas, page 53,3 reference to it will be the beft anfwer to what is faid about its purport. It is remarkable that Chapman was not by hgifiati-ve a£l declared guilty of treafon. Andrew Allen was lo declared guilty of treafon by the aft of attainder. The two cafes therefore are eflential- ly different. Attainders in Pennfylvania are faid by the Agent for the Claim- ant to be of three kinds : Firfl, by being particularly named in the aft, and this was the cafe of Andrew Allen. Second, by being called upon by prcclama- tion to furrender and abide a trial and neglefting to comply. This was the clafs in which Chapman was placed. While the courts affirmed the doftrine of the independence of Pennfylvania in 1776, and that treafon might have been committed againft the State at that period, they in fafor: I'ii^r tcck diftinfti- ons upon the afts of the I.egiflature which operated in favor of the prifoner, and Chapman was acquitted on the ground of not being m-ithin the legifiati-ve a£ls, arid of his being rather a prifoner of war. To conclude, the firft ground of defence, if the legiilative aft of attainder ■\)\ \ •■?-4i ^^rr *«»'iW»a*P-'*M».-i--»-:- il V I 1<' 1 mii f'rleicurc paffcd by rennlylvania on the 6th of March 1778, istobecon- iidercd as an ad\ of a lovcreigu independent State, it is conclufive proof that .'ftiJiciv J/hit \/ Ptact ii net brought into 'vinu on the " reitrd, yet it was in fa A the fole ground on which the arguments for the " plaintiffs proceeded, &c." In th." argument in DoAor Inglii's claim this cafe is fully ftated ; [Pngr 41 ef the printed copy) to which ftatement the Agent prays leave to refer, liy refer- ence to it the Board will perceive, that the real quellinn tried and meant to be tried was, whether an alien could hold lands in Maffachufetts, and it was de- termined he could not. With this view of the cafe of Moore and Pateh it is wholly inapplicable to the fubjefl now under confideration. Murray vs. MareaUy in MaflTachufetts. The record of this cafe is added to the printed cafe of Doflcr Inglis. The pleadings did not bring the Treaty of Peace before the Court, fo that the judg- ment was merely on the queftion, whether a Icgiflative aft of confifcation veiled in the State, the ellates and debts of an individual or not. It was decided in the affirmative, and every body muft agre« it was rightly decided. This ap- pears to be the true ftatc of the cafe {^Printed copy of Inglis^s cafe, pages 98, 99.) It confequently has no relation to the cafe of a perfon attainted as a traitor wliufe debts were forfeited on that account. Indeed obferving on thefe two cafes the Agent for Claimants fays, both thefe plaintiffs were " officers of the crown before the revolution, both left Maffachu- " fetts before the declaration of independence, and neither of them had been even " tacitly a citizen ef Majfachtfetts or any other State or had even been within the " limits of the State, or had been guilty of traiterous confpiracies againlt that " State, any more than Sir Henry Clinton, Lord Dunmore, and Governor Tryon, " had agaii..i ihe Slate of New York, &c." According to his own reprefentati- on then there is no fimilarity between either of thefe cafes and that of jindrew Men. The opinions of the Attorney General of Maflachufetts, as cited in the Reply, are believed to be very correA, but they too have no relation to the Treaty of Peace. What has been remarked by the Agent'for the Claimant, refpe^ing the 11- 3uidation J. S. Hohart, E.'quire, one of the Judges of New York, of the debt ue by N. Barlow to Bilhop Inglis (hall pafs without comment. Hamilton vs. Eaton., The plaintiffs in this cafe were allowed by a law of North Carolina, together with others fimilarly circumAanced, the option of taking an oath of allegiance to the State, or of departing it. They cbofe the latter and were never regarded as fubjeds to the State. Their confifcated debts they have been adjudged to be capable of recovering of the debtors.— "It is not to be denied that the Chief Jufticc f« V 1^ i I 33 ] jullicc El!j'v.(.rtl<, in ilclivcrinp his fentiments on this cafe, docs ftrongly Imp!/, if the plaiiitiiFa had been flaimtd and holden as citizens, and for their crime Jiad been dcjirived of their debts, t.iat they could not have recovered them under ihe Treaty of Peace. This opinion the Agent for the United States confiders, :is a very rclpcdablc fupport of the firlt ground of defence taken in this claim. Upon all occafiuns the Chief Juftice has been ready to allow tiie fulleft force of the Treaty of Peace upon c:.fe3 within it, and if debts forfeited for treafon are not in his opinion recoverable in the Federal Courts., -t can only be becaufe he ti)inks they arc not within the operation of the Treaty, for if they were, it is difficult to aflign a reafcn why :hey fliould not be recoverable at law, as well as debts confilcated by right of war. ilamilton vs. MoorCy in Georgia. The Agent for the United States having underftood in the month of March iill, that a cafe had been decided in the Circuit Court of Georgia, in which judge Filter foH prefided, without knowing the name of the defendant, or the purport of the decifion; wrote to him for informauon refpefting it. He was favoured with two letter', dated 16th of March and Z7th May, which follow. COPY. Nei'j Brunfiuiik, iGtk March, 1799. Sir, I RECEIVED your letter of the eighth of this month a few days .igo. The aftion in Georgia to wliich you allude, was iniHtuted in the names of Archibald and John Hamibon againll Dickinfon and M'lver. My notes on the circuit are (hort. Sometimes I take none. At the moment I trull much to memu.v. As far as notes and memory ferve, the plaintiffs declared on a bond of d.itcihe loth of Auguft, 1776. The defendant pleaded that f*-? plain- tiffs weri on the confilcation ad of North Carolina, and that they made pay- ment to the commiflioners, &c. The plea alfo ftated, that the plaintiffs were inhabitants of North Carolina on the 4th July 1776, aid continued fo till Sep- tember 1777. To thi-i plei the plaintiffs demurred. It is prooable that the rights and true fituation ,f the plaintiffs were not fet forth in th'i pleadings, at lead fuch was the impreflion on my mind «t the time ; for in confequence there- of, the Court 'n the courie of the argument intimated to the plaintiffs counfel, the propriety of amending, in order that the merits might come fairly into view. No nutic" was taken of the intimation. The argamer.i. proceeded, and the decifion was againft the plaintif}"s. The caufe in my apprchenfion uas fo clear that I took no tin.e to confider but inftantly decided. I think that a writ of error was brought but not purfucd. Peiliaps by having recourfe to the clerk's effice of the Supreme Court )ou will find the proceedings returned with the writ of error. I am !>ir your obeMent Servant, Mr. Re. Ml, \VlLI.\M PATTt."ISON. Sir, [ 39 ] Nrw Brun/wici, irth May, 1799. I FIND on my notes an aflion of the following defcription, Thomas Mutter of North Carolina, ") Archibald Hamilton of Great Bri- tain, and John Hamilton of Vir ginia, againft William Moore >In debt. The declaration ftates, that A. and J. Kamrlton, are fubjefts of the King of Great Britain. The defendant pletued, that the plaintiffs are on the confifca- tion aft of North Carolina, and payment to the commiflioners. The plea ftates, that the faid A. and J. Hamilton were inhabitants of North Carolina on the 4th July 1776, and continued to be fo till September 1777. To this plea the plaintiff:! demurred. I well remember that it was u'ged by Mr. Noel, one of the coun- fclon the part of the defendant, that all inhabitants became citizens by the de- claration of independence ; on this point the Court gave no opinion, it was not neceffary, the cafe did not require it. As it was admitted by the pleadings that A. and J. Hamiltor. were inhabitants of North Carolina on the 4th. July 1776, and continued to be fo ti!l September 1777, a period m.ore than lufficient foi them to mai " of Amity, between his faid Majefty and the United tion has been exadlly recited, becaufe it may be undeifto.:)d i have omitted the cafe of the Claimant, who in the aft of attainder and forfeiture is exprefsly de- fcribed as a fubjedl of the State of Pennfylvania, and puniftied as fuch by a for- feiture of his eftates and debts. Indeed the ex^ireffions in this refolution feem to imply, that ifJioiXor Inglis had been attainted as afubjea of Neiu York, and his debts cotif/cated for a crime committed by him as afubjecl, the Board would F " " have fl i ^ r 4^ J •• have (lifinifTcd his c'aim. The dlftinftlon fo explicitly taken by the Board, bc- " iwccn attainting and punifhing a man as z.fubje3. and attainting and punifli- " ing him " at a pcrjon hchlitigor claiming properly nvithin the State," muft have " ixcn meant for Ionic ufc. At all events, this refolution cannot be confidered as ' ■ deciding that \.\\c f'cuyih article of the Treaty of Peace fet afide legiflative afts of " attainder and forfeiture, paflt;d ag»inft individuals defcribed and holdcn as fub- ' ' jccl J of the State, and punillung them for their criminal conduft. There is cer- " tainly a difference between a confifcation of an enemy's property by the right " of war, and a forfeiture of a fubjeft's property by law for criminal conduft :" RESOLVED, that in the abovementioncd refolution in the cafe of Dr. Inglis, the Board did not decide on the diftinftion ftated in the above paffage to be " between attainting and punifhing a man as a fubjeft, and attainting or pu- " nifhing him as a perfon holding or claiming property within the State;" ha- ving only referred to the faft for the purpofe of fliewing, that the cafe flood ■. .]'.-arof all objed^ion on the ground of that alledged diftinftion. Epctraiitd from the ProceecHngs of the Board, G. EVANS, Secretary. Commissioners' Office, Philadelphia, ^th July, 1799, Present. Mr. macdonald;, Mr. RICH, Mr. FITZSIMONS, Mr. SITGREAVES, Mr. GUILLEMARD. In the Cafe of Andrew Allen. THE following Refolution having been the fubjeft of full difcuflion in the Bo:ud during feveral fittings, — Mr. Maalonald with the concurrence of Mr. Rich «n(i Mr. GuilUnnv^, moved that the fnme (hould be pafTed, The [ 43 J The BoarJ having cotifidered the ^' fir ft groioiJ of u, fence* lakcn Ly tuc United States in this cafe, aj founded on the aifl of attainder and contilcation, pafled by the State of Pennfylvania againil the Claimant on the 6th day ot March 1778, in the following terms, " Whereas 'Jt'fph Gallotvay, Andrevj " Allen, &CC, SiC, " being allfuhjecls and inhabitants of the Stat; ef Pennfyhania, " have moll traiteroufly, and wickedly, and contrary to the allegiance they ^' owe to the faid State, joinec. and adhered to, and ftill do adhere to, and " knowingly and willingly aid and affift the army of the King of Great " Britain, now enemies at open war againft this State and the United States •' of America, and yet remain with the faid enemies : — Re it therefore cn- " afted, and it is hereby enafted bj the reprefentati'ves nf the freemen of the " Cimmon'vuealtb of Pennfylvania in General Afiembly met, and by the autho- •* rity of the fame, that if the {z\y? ground of dift/ni," and referving the other points in the cafe, that it bccomrs the Board to refrain from all obfcrvation on the gcmral queftionji fuggellcd in the above argument ; name- ly, uliether a part of a nation becomes independent of the government which had been eftablifhed over the whole merely by declaiing itfelf to be fo, and fupporting fuch declaration " by the fword?" — whether a part of a nation by thus " carrying on war" againll that which had till then been maintal.ied as the government of the whole ; " making laws for their own go- " vernmcnt ; and doing every aft of a fovereign power," does truly become a fovcreign pmvcr r — whether the aflertion be well founded, that " the formal " acknowledgment by His Britannic Majefty added nothing to the real inde- " pcndeiice of the United States :" — wliat would have been the cafe " if the " Treaty of Peace had never been made .'" — whether " the United States " would" have aiaually continued an " independent nation though at war with " Great Britain ac this moment?" — and how far '• the celebration in every " part of the country of the ever glorious and memorable 4th day of July, " 1776," (according to the language made ufe of before the Board) " as the " anniverfary of their fovereignty" can affeft the prefent cafe? — that the Board think it fit alio to refrain from all obfervatlon on the cafe which is in fub- flance put, of an unconditional fubmijjion on the part of Great Britain to the in- dependence of the United States, and to all that bad been done under the autho- rity they exercif'd ; becanfe the cafe fo put, is not the cafe which aftualiy exifh ; there having been no fuch :(«««-; plain and unambiguous (lands confirmed by the refpeftatle authority already referred to. *♦ On the bed inveftigation (fays Judge Chafe) which I have been able to give ** the yotfr/A" article of the Treaty, I cannot conceive that the wifdom of man «« could exprefs their meaning in more accurate or intelligible words, or in •* words more proper and elFeftual to carry their intention into execution"— and Judge Paterfon expreffes himfelf thus— " The phrafeology made ufe of leaves in " my mind no room to hefitate as to the intention of the parties. The terms «* are unequivocal and univerfal in their fignification, and obvioufly point to, " and comprehend all creditors, and all debtors previoufly to the 3d September " 1783. In this article there appears to hs a felei,^ien of expreffton, plain and cxtenfKe i-- i^ m : _«!^ I. : I (8 ) " exKrnrii'c in their import, r.nd admirably cahulatcdto obviate doubts, to remove " difficulties, to difignate the objefts, and afcertain the intention of the con- " tending powers," — " Tlie words creditors on either Jide embrace every de/crip- " tion of creditors.'^ — Ail credito rs on either Menvithout dijlinilion muft have " been contemplated by the parties in the fourth article : Almoft every word " fcparately taken is cxprefllve of this idea, and when all the words are com - ■' bined and taken together, they remove every particle of doubt." — That the fame imprcllion of the ample, comprehenfive and unreftrained force of the faid f'omth article, is further confirmed by another learned Judge (SitgreavesJ in the opinion delivered by him in the cafe ol Hamiltons againji Eaton, in June 1796, alio referred to and recited in the abovementioned paper, entered on the minutes of the Hoard in the cafe of Inglis ; the faid learned judge, in (latine the general and unlimited import of the expreflion " nil creditors on either fide ' in the faitj fairth article, where no other diftimf^ion of perfon or chara(fler was intended ihan that of being on the one ilde or the other at the peace, having therein re- ferred to the feveral dillinflions of charader anxioufly marked out in the very next jirticic, viz. the fifth, where fuch diflindlions were intended, (but which fifth jirticle has no relation to the recovery of the debts fecured by the fourth article) .ii follows :—" The /o»r//.» article contains the only ftipulation with refpe£t to " debts in the whole inftrument. It is mutual and general in its expreffion, not " limited or rcftrained by any particular words to any defcription of perfon s, as " is evident in they5/>A article. If that had been in the contemplation of the «' parties, they could not have overlooked the neceflity for thefe diftinftions, nor <' are we at liberty to prclume it. In the next article, the diftinftion is made " with great accuracy with regard to thofe who endeavour to procure a reftituti- " on of their lands and other property:" — that the extent cqurlly unlimited of the cxprcflion "laxvful impediments" is likewife referred to and explained by the fame, and other learned Judges of the United States, whofe opinions urc quoted in the abovementioned paper, in the cafe of Inglis, Judge Chafe liavinjT cxprcffed himfclf on that fubjeft as follows, — " Shall meet with no " lav. fil impediment ;" th.it is, with no o'oftacle (or bar) arifing from the com- " mou laiv, or ads of Parliament, or aBs of Congref, or afts of any of the " States, then ill exijlcnc!", or thereafter to be made, that would i» any manner " operate to prevent the recovery of fuch debts as the Treaty contemplated."— " The prohibition that no lawful impcdimeut Ihall be interpofed is the fame as " that ail lawlul impediments (hall be JvwoTTi/. The meaning cannot be gra- " tified by the removal of one impediment and leaving another ; and a fortiori, " by taking away the lefs and leaving the greater ; thefe words have both a " rc-trofpeSfive and future afpeft." — Judge Paterfon., " The words /hall meet " with no lav.ful impediment refer to legillative afts and every thing done under " them, .'b hr as the creditor mzy he a ffi,j?cd or obfirui^ed in regard to his remedy " or right. All lawful impediments of whatever kind they might be whether " they related to pcrfonal difahililies, or confifcations, &c. are removed. No impediment," arc as Hrong as the w:t ot man could devile to avoid all effcii! " of liequcftration, confifcation, or any nhfiacle thrown in the way by any law " particularly pointed againft the recovery of fuch debts." — .And to fliew that 3 lawful impediment might operate within the meaning of the Treaty, though there ffp • -•lar' • -vjrrif*"^ TKri^^ r 49 ] there Ihould be no /«•?«/ debt at the date of the Treaty of Peace, Judge fFiljoH obferves, that the fourth article " is not confined to dthts exifting at the time " of making the Treaty, but is extended to liebf thereto/pre contratltd." That the cxpofition thus given, /?«« tht Treaty of Amity, viz. in the year 1796, by the learned Judges of the United States above named, correfponds with the opinion which, on mature deliberation, the Board have clearly formed on this fubjeft, and which they now declare, viz. That the fame inftrument, by the firft article whereof His Britannic Majefty on the 3d day of September, 1783, " acknowledged the United States" (not to have been from the 4th day of July, 1776, but) " to he hee, fovereign, and " independent States; that he treated with them as fuch, and relinquiihed all '• claims to the government, propriety, and territorial rights of the fame," provided alfo in eflteft, by the mutual llipulation in favor of " creditors on either "^i/?," contained in the fourth article thereof, that no aft which had then been, or Ihould thereafter be done or pafled, by or under the authority of the faid Uni- ted States, or any of them, whatever might be its form or import ; whatever the terms therein employed ; whatever the extent of power thereby aflumed or declared ; whatever the charadVer thereby afcribed to the individual againil whom it was direfted, (hould be fuffered to oi^eratc as a lawful impediment to the recovery of debts '• theretofore contrafted" to a creditor on the fide of His Britannic Majefty at the date of the faid Treaty : Nor can the objeftion be fupported, that the above interpretation would extend to the ordinary operation vf criminal law in cafes of felony, and fuch other offences as did not arife from the part taken by individuals during the war ; for fuch ordinary operation of cri- minal law thus fuggerted as the ground of an objeftion, has no relation whate- ver to the fubjedt matter of the faid article :— That in the cafe of the Right Re- verend Charles Inglis, the Board by their unanimous icfolution of the imenty -firft day of May, 1798, determined, that an aft of the State of New-York pafled durin,'» the war, attainting the faid Charles Inglis for the imputed crime of ad' hering to His Britannic Majefty was a lawful impediment within the meaning of the Treaties ; the only difference between that cafe and the prefent confifting in the different words of defcription contained in the two feveral afts ; — but as the aft of the State of Pcnnfylvania cannot have any greater effcft or operation againft the fourth article of the Treaty of Peace than that of New York, and as the faft charged to be a crime, viz. adherence to the caufe of His Britannic Majefty is the fame in both cafes, the mere words of defcription affumed in the aft of Pcnnfylvania, cannot prove fl^a/>//? the true charafter of the party ao a Bri- tiftj fubjeft, or give efficacy to iticlf, fo as to take the cafe out of the meaning and operation of the faid article : — Nor does it appear how the Claimant be- came lawfully fubjefted to that State any more than the faid Charles Inglis to the State of New York, or the former Icfs entitled to the charafter ofBritifti fubjedl than the latter : — That all general argument on the declaration of independence, and the effeft of afts done under it, whether by the law of nations by of the idledged rctrolpcft of the above recognition by the Treaty of Peace, ii therefore precluded, fo far as regards the prefent fubjeft, ^_>' the plain terms of n pnfiti-vc compaSi : — That the com prehcn five expreflion " creditors on either fide, '^ cor.taincd in the fcurth article of the faid Treaty, unreftiained by exception, In (j difirip/ror' H W *« i 1 ij - 1 1 i ■! 1 'i f ii [ 50 ] dtfcripiion ef fftnal chnruifir, »ir reftriiliiin ef nny kind, was evidently it the prailice of the Judges to enter upon the difcufTion of matter not ncceflary to the determination of the queftion before them : but whatever has bee i faid by any cf the Judges in Weltminller Hall which may be held as applicab.e to the prefent quellion, will be found corredly to agree with the principles anU concluf;ons now declared by the Board; — the faid principles and conclufions containing nothing inconfiftent with that perfcA refpcft which is due tc the ),idependence of the United States, as the fame was recognized on the part of His Britannic Majelly, by t\\c firj) article of the Treaty of Peace. And the faid refolution having been read Mr. Fitxfimons anil Mr. Sitgreaves jvithdrew. ExlraSled from the Proceeding! of the Board. G. EVANS, Secretary in : i] :. I H- • • r I *1