OPINIONS OF THE ATTORNEYS GENERAL OF THE UNITED STATES, FROM THE COMMENCEMENT OF THE GOVERNMENT DOWN TO THE 1ST MARCH, 1841. OPINIONS OF EDMUND RANDOLPH, OF VIRGINIA. APPOINTED SEPTEMBER 26, 1789. NEW YORK, August 10, 1790. SIR: I have examined the papers which you did me the honor of submitting to me yesterday, on the subject of the Georgia confiscations; but, in the present mutilation of the necessary documents, it is impossible for me to form a satisfactory opinion. The act of May, 1782, is not among the enclosures of Sir John Temple, but is the groundwork of the proceeding complained of. The last act appears in part only. Nor does the Governor's reasoning supply any of these defects. I trust, therefore, that you will see the propriety of my declining to enter into the question at this moment, at least. Perhaps at any time the proper answer will be, that the Executive of the United States ought to leave the whole business to the Judiciary. On this, however, I do not presume to decide. I have the honor, sir, to be, with the most respectful attachment, your most obedient servant, To the SECRETARY OF STATE. EDM. RANDOLPH. IN COUNCIL, July 15, 1789. The Governor, who, by the order of Council of the 12th June last, was requested to draw up and report a state of facts from the several papers which were then read, to wit: the auditor's letter; the report of the committee of Council; the act of banishment and confiscation; the definitive treaty of peace between the United States and Great Britain; the acts of Assembly of the 13th of February, 1786, and of the 10th of February, 1787; together with the resolutions of Congress of the 21st March, 1787, and their letter to the States, founded thereon, of the 13th of April following, states and reports: That, in order to give a clear view of the business, it is necessary to recur to original principles and to incidental facts. He therefore says: That the district of country lying on the Atlantic ocean, from New Hampshire to Georgia inclusive, prior to the 4th of July, 1776, formed several provinces of the crown of Great Britain. That several of the acts of the Legislature of the kingdom having been considered as oppressive and innovative of the constitutional and the chartered rights of the provinces, the authority of them was disputed, and their operations opposed. Open and avowed hostilities ensued. In this state of warfare and uncertainty, the several provinces sent deputies to Philadelphia, and formed a general Congress; which, after the adoption and pursuit of various measures, to restore peace and obtain justice, the common safety and future welfare compelled them, on the said 4th day of July, 1776, to declare the said provinces to be independent States; and articles of union were afterwards formed and agreed to, by which they were leagued by a general confederation, with the powers of war and peace. Treaties of commerce and alliance were also made and entered into with foreign powers; and by them the independence of the States was explicitly recognised, and finally acceded to by Great Britain. From the 4th day of July, 1776, therefore, the acts and proceedings of the several States are those of sovereign and independent powers, and binding in their relation with the Union, and with other nations; and within this description is the act of confiscation of this State. The object, then, of this inquiry, is: whether certain debts mentioned in the auditor's letter were bona fide confiscated before the definitive treaty of peace; and, if so, whether the same was not done away by the said treaty. The documents will speak for themselves. By the 1st clause of the act of confiscation, the property of every kind of many of the merchants who resided in this State at the commencement of the war, and who are therein named, is expressly confiscated, and their persons banished; and by the 4th and 5th clauses, the moneys and the estates, real and personal, belonging to the British subjects whose persons were not in the power of the State, were sequestered, confiscated, and appropriated to the use of the State. In virtue of which, many of the estates of British subjects, as well as of the merchants named, which were discovered, have been already sold, both before and since the definitive treaty; and it may be ascribed to the difficulty of the coming at the knowledge and evidence of the debts, that the same, together with the acts of 1786 and 1787, for that purpose, have not been carried into more full effect. But should the merchants who fled this State during the war, with their books, or those whose debts are confiscated, generally return, or come and put them in suit, it is presumed the Attorney General would understand the extent and line of his duty from the several acts themselves, and the instructions under which he acts. The definitive treaty of peace between the United States and Great Britain goes something further than other treaties, by not only expressly acknowledging the independence and sovereignty of the States, and relinquishing all right, and pretensions to right, in form, but by recognising the acts of confiscation, and guarantying the navigation of the Mississippi. It is dated the 3d day of September, 1783; the act of confirmation the 4th day of May, 1782; the former being posterior, and the latter recognised by it, the act on this foundation, and without question on any other, is in force; and it is not this or that part that is so, but the whole. It has already been acted upon to considerable extent, and, so far as the actual appropriations have gone, Great Britain has made adequate compensation. The 4th article of the treaty respects such mercantile transactions as are not affected by confiscation prior to the treaty; which is the case in this State. This article, and the two succeeding ones, may be explained by a resolution of Congress entered upon the secret journal, and transmitted to the ministers plenipotentiary for their government, and anterior to the treaty. It is known to the writer, and had reference to the acts of confiscation. It asserted the sovereignty and right of the States to make laws which they could not control, and restricted the commissioners, with respect to them, in the entering into any treaty: as the confiscations could not be conceded by the commissioners, the 5th and 6th clauses were agreed to as the alternative. These have been fully carried into effect by the act of Congress of the 14th January, 1784, and by the resolutions and letters herein before mentioned. But, however much the body recommending was respected, it was altogether optional with the sovereignty of the States how far they would yield in that regard; and so it was universally considered on both sides the Atlantic. Nor did any of the States give up their acts, or cease carrying them into effect. That there shall be no more confiscations. made, was understood on all sides to be a confirmation of the past, and a provision against acts of the kind; nor have any since taken place in either of the States. The letter of Congress to the States breathes a spirit of peace and benevolence, with a desire of forgetting the animosities of the war, in the contemplation and pursuit of national prosperity. In their place, and urged by their ambassador, it was good policy to repeat and go thus far; but this opinion could not affect the right. The State, in opposition of the right had her alternative. Our liberty and independence are the price of our blood; the confiscation-of our excessive losses by the ravages of the war, and the monstrous alienations of the usurpation. NOTE. The principles and facts upon which this case is stated arose and existed within the periods of independence and the establishment and operation of the federal constitution, which has no retrospect. Extract from the minutes: GEORGIA, RICHMOND COUNTY. J. MEREWETHER, CHAMBERS, AUGUSTA, May 11, 1790. Present: The Hon. Henry Osborn and George Walton, Esqrs. The Attorney and Solicitor General moved for a rule to make his excellency the Governor for the time being plaintiff in behalf of the State, in all cases where the State has claims for property founded on the act of banishment and confiscation passed the 4th day of May, 1782, and comprehending as well lands and tenements, negroes, stock, furniture, moneys, debts which were due at the time of passing the said act to British subjects or merchants, and of any nature and kind whatsoever, within the intent and meaning of the said act. Whereupon it is ordered that a rule be granted for constituting parties for the establishment of justice with respect to the premises; and that, upon application of the Attorney or Solicitor General, upon all occasions, and within the several counties within this State, the respective clerks do receive a copy of this order as a sufficient warrant of attorney for the Governor for the time being to appear |