oaptfe d tlje IJfatifei) H> fates
E
VENING ADVERTISER.
[No. 58 of Vol. V.]
Jnthe $:if>rfin • Court of the United Slates.
*Tbe State of Georgia,
•w. /
Br ails ford, Powell f
and Hopton. J
HTHIS cause came before the Court
'under the following leading circum-
stances
On the 20th of May 1782, the state
«f Georgia pafied an a&, in which, a
iviong other things, (he confifcated the
ellates, and debts of persons, whose
property had been confifcated in other
dates, in like manner and form of for
feiture, as they were fubje&ed to in the
Hates refpeftively, of which such persons
were delinquent citizens : And, with
refpeft to British merchants, or others
residing in Great-Britain, it was declar
ed, "that all debts dues and tjciriands due
or owing to them be and they are hereby
sequestered, & the commifiioners appoint
ed by this a&, or a majority of them are
thereby empowered to recover receive and
deposit the fame in the Tieafury of.tfyis
state, in the fame manner, and under
"the fameregulations, as debts conftfeated,
there to remain to the use of this Hate,
until Other wife appropriated by this or
any future houle of Assembly."
Brailsford was a Britifti merchant, re
fidiiig in Great Britain ; and Puivtlland
Hopton, wae delinquent citizcns of
South Carolina, vvliofe tftatts had been
confifcated in pursuance of an ast of that
state, pafied on the 25th of February
1782, in the following teims; "that
all the real eftatc6 either in pofllffion, in
re»erfion,or remainderof thefevcral per
sons &<.. fhallbe veiled in 5 commissioners,
«nd all the personal estate» (debts except
ed) of fucli persons &c. are hereby veil
ed in the said commissioners &c."
In the year 1774 Kelfall and Spald
ing, citizens and merchants of the state
of Georgia, had executed a bond for a
tonfideiable sum to Brailsford, Powell,
and Hopton; upon which, after the war, a
suit was instituted by the obligees againU
Spalding, tiie fuiviving partner, in the
Circuit Court, for the diftrift of Geor
gia, returnable to October term 1791.
The defendant pleaded the above men
tioned confifcation laws in bar of the
present attion ; the Plaintiffs demurred
to the plea, and the defendant joined in
a demurrer : but at April term 1792.
Judgment was given for the former by
Judges Iredell and Pendleton. An ap
plication made by the state of Georgia,
for admission to defend her tights in the
suit iullituted by Bralsfmd, Powell, and
Hopton, being rejected, abill was filed on
her behalf,on the equity lideoftheSiipieme
Court of tile United Stales, again It all the
parties to the suit below, representing
her claim to the debt in question under
the cnnfifcaiion laws of Georgia and S.
Carolina ; and praying that an injunc
tion might issue to prevent an execution
Wing taken mit on the judgement ob
tained by Brailsford, Powell, and Hop
ton, until the merits of that claim were
lieatd and decided. After two argu
ments by Mr. Ingerfoll and Mr. Dal.
las for the State, and Mr. Randolph
for the defendants, the injunction
was granted ; and the present issue
was joined, under the recommenda
tion of the Court, to try the general
question, whether the debt due from
Spalding, and the right of action to te-
CBver it, now belonged to the slate of
Georgia, or to the original creditors?
On the 4th of Feb. 1794, a special
jury was qualified to try thecaufe, which
during four days, was argued by Mr.ln
gerfoll and Mr. Dallas for the state of
Georgia, and by Mr. Bradford, Mr.
Tilghman, and Mr. Lewis, for the de
fendants. As we underhand tliac a full
report of the record and the pleadings,
is preparing for the press, we (hall only
add on this occasion, the charge of the
Couit, which was delivered Chief
juttice on the 7th of Febiuary in the fol
lowing terms.
Tuesday, February 18, 1794.
" Gentlemen of the Jury,
This Caufc has been regarded, as of
great importance ; and doubt less it is
so. It has accordir»gly been treated by
the Counsel with great learning, dili
gence, and ability ; and on your part,
it has been heard with particular atten
tion. It is, therefore, unnecefTary for
me to follow the invefWgation over the
extensive field, into which it has been
carried : You are now, if ever you can
be, completely possessed of the merits of
the cause.
The fa&» compiehended in the cafe,
are agreed : the only point that te
rrains, is to fettle what is the law of the
Und arising from those ; and on
that point, it is proper, that the opinion
of the Court ftiould be given. It is for
tunateon the present, as it must be on eve
ry occasion, to si id the opinion of <lie
Court unanimous : We entertain no
diversity of femrrnent ; and we have ex
perienced no difficulty in uniting in the
charge, which it is my pioviuee to deli-
We are then, Gentlemen, of opinion,
that the dr.bls due to Hopton and Pow
el, (who were citizens of S. C.) vrere
not confifcated by the flatute of S. Car
olina : the fame being therein expressly
excepted : That those debts weie not
confitca-ted by the flatute of Georgia,
for that statute enacts, with refpeft to
P. and H. precisely the like and no other
degree and extent of confifcation and
forfeiture with that of South Carolina,
Wherefore it cannot now be necessary
to decide, howfar one state may of right
legislate relative to the personal rights
of citizens of another state, jiot residing
within their jurifdiftion.
We are, also, of opinion, that the
debts due to Brailsford a Btitifh fubjeft
residing in G. Britain, were by the statute
of Georgia fubjefted, not to confifcation,
but only to sequestration ; and, therefore
that his right to recover them, revived
at the peace, both by the law of nations
and the treaty of peace.
The question of forfeiture in the cafe
of joint obligees, being at present im
material, need not now be decided.
It may not to be amils here, Gentle
men, to remind you of the good old
rule, that on qucllions of fact, it is the
province of the Jury, on questions of
law, it is the province of the Court, to
decide. But it mufl be observed that by
the fame law, which tecognizes this rea
sonable distribution of jurifdiftion,
you have nevrrthelefa a light to take
upon yourselves to judge of both,
and to determine the law as well as the
fact in controversy. On this, and on
eveiy other occalion, however, we have
no doubt, you will pay that refpeft,
which is due to the opinion of the Court:
For, as on the one hand, it is presumed,
that Juries are the bed judges of facts ;
it is, on the other hand, prefumeable,
that the Coutt are the b ft judges of
law. But still bo h objects are lawfully,
within your power of decision.
Some stress lias Deep laid on a conG
detation of the diffeient situations of the
parties to the Cause i The state of
Georgia, files three private petfons.
But what is it to justice, how many, or
how few ; how high, or how low ; how
rich, or how poor ; the contending
parties may chance to be ? Justice is in
discriminately due to all, without regard
to numbers, wealth or rank. Because
to the state of Georgia, composed of
many thousands of people, the litigated
film cannot be of great moment, you
will not for this reason be juftified, in
deciding against her claim ; if the money
belongs to her, (he ought to have it ;
but on the other hand, no consideration
of the circumstances, or of the compar
ative infignificanee of the defendants, can
be a ground to deny them the advantage
of a favorable verdiA, if in justice they
are entitled to it.
Go, tben, Gentlemen from the Bar,,
AND
with nit any impressions of favor or pre'
judice for the one party, or the other:
weigh well the merits of the cafe ; and
do on this, at you ought to do on every
occasion, equal and impartial judice."
The jury having been absent foroc
time, icturned to the bar, and proposed
the following queltions to the court.
I. Did the adt of the state of Geor
gia, completely veil the debts of Brailf
ford, Powel and Hopton, in the ftate,at
the time of palling the fame ?
11, If so, did tbe treaty of peace, or
any other matter, revive the tight of the
defendant! to the debt in controversy ?
In atifwer to these queltions, the chief
justice Hated, that it was intended in the
general charge of the court, to cemptife
ihciT sentiments upon the points now fug
gelled ; but as the jury entertained a
duubt, the enquiry was perfe&ly right.
On the firft question, he said it was tbe
unanimous opinion of the judges, that
the ad of the (late of G. did not vest
the debts of B. P. and H. in the Hate
at the time ofpafiing it. On the 2d ques
tion he said, that no fequeflration divellsthe
property in the thing sequestered ; and,
coniequently, Brailsford at the peace,
and, indeed, throughout the war, was
the real owner of the debt. That it is
true, the Hate ofGeorgia interposed with
her kgiflative authority to prevent. B's
recovering the debt while the war conti
nued, but, that the mere reftoratios
of peace, as well as the very terms of
the treaty, revived the right of aiSion to
recover, the debt, the property of which
had never in fadl or law been taken fiom
the defendants : And that if it were o
therwise, the fequeflration would cer
tainly remain a lawful impediment to the
recovering of a bona fide debt, due to a
British crcditm-, in direct oppolition to
the 4th article of the treaty.
After this explanation, the jury, with
out going again from the bar, returned
a f rrdicl for the Defendants.
CONGRESS.
House of Rcprcfentativcs.
January 27.
In committee of the whole on Mr. Madison's
resolutions.
( Mr. Ames's Speech continued. J
A question remains refpefling the state
6f our navigation. If we pay no regard
to the regulations of foreign nations, and
alk, whether this valuable branch of eur
industry and eapital is in a diftrelTed and
sickly llate, we (hall find it is in a ilrong
and flourifhing condition. If the quanti
ty of (hipping was declining, if it was un
imployed, even at low freight, I should
fay it must be sustained and encouraged.
No such thing is afierted. Seamen's wa
ges are high, freights are high, and A
merican bottoms in full employment.
Butthecomplaintis,our veflclsare not per
mitted to go tothe Britilh Weft-Indies. It is
even affirmed that no civilized country
treats us so illy in that refpeft. Spain
and Portugal prohibit the traffic to their
poffeflions, not only in our veffefa, but in
their own, which, according to the style
of the resolutions, is worse treatment than
we meet with from the British. It is also
asserted, and on as bad ground, that our
vefiels are excluded from most of the Bri
tish maikets.
This is not true in any sense. We are
admititted into the greater nnmber of her
ports, in our own veflels: and by far the
greater value of our exports is fold in
Britifli ports into which our veflels are re
ceived, not only on a good footing, com
pared with other foreigners, but on terms
of positive favor—on better terms than
Britifli veflels are admitted into our own
ports. We are not fubjeft to the alien
duties, & the light money See. of l/g ster
ling per ton, is less than our foreign ton
nage, not to mention the ten per cent, on
[Whole No. 516.]
the duties on the goods in foreign bot
toms.
But in the port of London our veflels
are received free. It is for the unprejudi
ced mind to compare these fatls with the
aflertions we have heard so confidently
and so feelingly ma de by the mover of the
resolutions—that we are excluded from
mod of the British ports, and that no ci
vilized nation treats our veflels so illy.
The tonnage of the veflels employed
between Great Britain and her dependen
cies and the United States is called
220,000, and the whole of this is repre
sented as our just. right. The fame gen
tleman speaks of our natural right to the
carriage' of our own articles, and that
we may and ought to infill upon our equi
table /hare. Yet, soon after, he ufesthe
language of monopoly, and represents the
whole carriage of imports and exports as
the proper objedl of our efforts, and all
that others earn- as a clear loss to Ame
rica. If an equitable share of the carri
age means half, we have it already, and
more, and our proportion is rapidly increaf
lng. If any thing is meant by the natu
ral right of carriage, one would imagine
that it belongs to him whoever he may be,
who having bought our produce, and
made himlelf the owner, thinks proper to
take it with him to his own country. It
is neither our policy nor our design to
check the sale of our produce ; we invite
every description of purchasers, because
we expect to-fell dearefl when the num
ber and competition of the buyers is the
greatest. For this reason the total exclu
sion of foreigners and their veflels from
the purchase and carriage of our exports
is an advantage, in refpeft to navigation,
winch has disadvantage to balance it, in
refpeft to the price of produce. It is
with this reserve we onght to receive the
remark, that the carriage of our exports
should be our object rather than that of
our imports. By going with our veflels
into foreign ports we buy our imports in
the belt market. By giving aiteady and
moderate encouragement to our own {hip
ping, without pretending violently to in
terrupt the course of business, experience
will soon establish that order of things
which is most beneficial to the exporter
the importer and the (hip owner. The
belt interest of agriculture is the true in
terest of trade.
In a trade mutually beneficial it is
strangely absurd to consider the gain of
others as our loss. Admitting it howe
ver for argument fake, yet, it should be
noticed that the loss of 220,000 tons of
(hipping is computed according to the ap
parent tonnage. Our veflels not being
allowed to go to the British Weft-Indic»
and their veflels making frequent voyages,
appear in the entries over and over again.
In the trade to the European dominions
of Great Britain, the diltance being great
er, our veflels are not so often entered.
Both these circumstances give a falfe lhew
to the amount of British tonnage, com
pared with the American. It is however
very pleasing to the mind to fee that our
tonnage exceeds the- British in the Euro
pean trade. For various reasons, some of
which will be mentioned hereafter, the
tonnage inthe Weft-India trade is not the
proper subject of calculation. In the Eu
ropean comparison, we have more tonnage
in the British than in the French com
merce—it is indeed more than four to
The great quantity of Biitifh tonnage,
employed in our trade, is also, in a grc?.t
measure, owing to the large capitals of
their merchants, employed in the buying
and exporting our prod\i£lions. If we
would banish the (hips, we nuil flrike at
the root and banish the capital. And t'nL,
before we haTe capital of our own grown
up to replace it, would be .n operation of
no little violence and injury, to onr sou
thern brethren especially.
Independently of this circuraflance,
Grest-Britain is an a&ive and intelligent
rival in the navigation line. Her (hips
art; dearer, and the proviiionmg her sea