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U.S. Supreme Court

Georgia v. Brailsford, Powell & Hopton, 3 U.S. 3 Dall. 1 1 (1794)

Georgia v. Brailsford, Powell & Hopton

3 U.S. (3 Dall.) 1



The act of the Legislature of Georgia of 4 May, 1784, did not vest in the state debts due by a citizen of Georgia to a partnership, some of the members of which were citizens of South Carolina and one of whom was a subject of Great Britain.

No sequestration divests the property in the thing sequestered.

The act of the Legislature of Georgia sequestering debts due to British subjects prevented the recovery of the debt by suit during the continuance of the war, but the mere restoration of peace, as well as the terms of the treaty, revived the right of action.

Page 3 U. S. 2

This was a trial at the bar of the Court by a jury to determine the right of the State of Georgia, under the Confiscation Act of 4 May, 1782, to a debt due by a citizen of Georgia to a partnership composed of certain persons, some of whom were citizens of South Carolina and one of whom was a British subject and had been in England during the whole of the war of the Revolution.

The plaintiffs alleged that James Spalding, a citizen of Georgia and surviving co-partner of Kelsall & Spalding, was indebted to the defendants in the penal sum of �7,058 9s. 5d. upon a bond, dated in 1774, which debt, by virtue of the said recited law, was transferred from the obligees and vested in the state -- Brailsford being a native subject of Great Britain, constantly residing there from the year 1767 'till after the passing of the law; Hopton's estate, real and personal (debts excepted), having been expressly confiscated by an act of the Legislature of South Carolina, and Powell coming within the description of persons whose estates, real and personal (debts excepted), were also confiscated by acts of the Legislature of South Carolina if after refusing to take the oath of allegiance, they returned to the state.

It was denied by the defendants that by a fair construction of the law of South Carolina and of the confiscation act of Georgia, the debt due by Kelsall & Spalding had become the property of the plaintiffs. For the plaintiffs, it was contended:

1. That Georgia, as a sovereign state, had power to transfer the debt from the original creditor, an alien enemy, to herself notwithstanding some of the debtors were citizens of another state, and that, by her law, she had declared her intention to make the transfer, and that without an inquest of office, the transfer had been carried into effect in due form, as well in relation to her own citizens as to the parties who were citizens of South Carolina.

Page 3 U. S. 3


"This cause has been regarded as of great importance, and doubtless it is so. It has accordingly been treated by the counsel with great learning, diligence, and ability, and on your part it has been heard with particular attention. It is therefore unnecessary for me to follow the investigation over the extensive field into which it has been carried -- you are now, if ever you can be, completely possessed of the merits of the cause. "

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"The facts comprehended in the case are agreed; the only point that remains is to settle what is the law of the land arising from those facts, and on that point it is proper that the opinion of the Court should be given. It is fortunate on the present, as it must be on every occasion, to find the opinion of the Court unanimous: we entertain no diversity of sentiment, and we have experienced no difficulty in uniting in the charge, which it is my province to deliver."

"We are then, Gentlemen, of opinion that the debts due to Hopton & Powell (who were citizens of South Carolina) were not confiscated by the statute of South Carolina, the same being therein expressly excepted: that those debts were not confiscated by the statute of Georgia, for that statute enacts, with respect to Powell & Hopton, precisely the like, and no other, degree and extent of confiscation and forfeiture with that of South Carolina. Wherefore it cannot now be necessary to decide how far one state may of right legislate relative to the personal rights of citizens of another state not residing within their jurisdiction."

"We are also of opinion that the debts due to Brailsford, a British subject, residing in Great Britain, were by the statute of Georgia subjected not to confiscation, but only to sequestration, and therefore that his right to recover them revived at the peace, both by the law of nations and the treaty of peace."

"The question of forfeiture in the case of joint obligees, being at present immaterial, need not now be decided."

"It may not be amiss, here, Gentlemen, to remind you of the good old rule that on questions of fact, it is the province of the jury; on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court: for, as on the one hand, it is presumed, that juries are the best judges of facts, it is, on the other hand, presumable that the court is the best judge of law. But still both objects are lawfully, within your power of decision."

"Some stress has been laid on a consideration of the different situations of the parties to the cause. The State of Georgia sues three private persons. But what is it to justice how many, or how few; how high, or how low; how rich, or how poor; the contending parties may chance to be? Justice is indiscriminately due to all, without regard to numbers, wealth, or rank. Because to the State of Georgia, composed of many

Page 3 U. S. 5

thousands of people, the litigated sum cannot be of great moment, you will not for this reason be justified in deciding against her claim; if the money belongs to her, she ought to have it; but on the other hand, no consideration of the circumstances or of the comparative insignificance of the defendants can be a ground to deny them the advantage of a favorable verdict if in justice they are entitled to it."

"Go then, Gentlemen, from the bar without any impressions of favor or prejudice for the one party or the other; weigh well the merits of the case, and do on this as you ought to do on every occasion, equal and impartial justice."

The jury having been absent some time, returned to the bar, and proposed the following questions to the court.

1. Did the act of the State of Georgia completely vest the debts of Brailsford, Powell & Hopton in the state at the time of passing the same?

2. If so, did the treaty of peace or any other matter revive the right of the defendants to the debt in controversy?

In answer to these questions, THE CHIEF JUSTICE stated that it was intended in the general charge of the Court, to comprise their sentiments upon the points now suggested, but as the jury entertained a doubt, the inquiry was perfectly right. On the first question, he said it was the unanimous opinion of the judges that the act of the State of Georgia did not vest the debts of Brailsford, Powell & Hopton in the state at the time of passing it. On the second question he said that no sequestration divests the property in the thing sequestered, and consequently Brailsford, at the peace and indeed throughout the war, was the real owner of the debt. That it is true the State of Georgia interposed with her legislative authority to prevent Brailford's recovering the debt while the war continued, but that the mere restoration of peace, as well as the very terms of the treaty, revived the right of action to recover the debt, the property of which had never in fact or law been taken from the defendants, and that if it were otherwise, the sequestration would certainly remain a lawful impediment to the recovering of a bona fide debt due to a British creditor, in direct opposition to the fourth article of the treaty.

After this explanation, the jury, without going again from the bar, returned a verdict for the defendants.

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