Page v. Pendleton
During the Revolutionary War and the several years leading up to it, Virginia's financial situation was dire. Much of the money raised by taxes in previous years had gone straight to the Royal Treasury, leaving the colonial government strapped for cash. On top of that, many Virginia farmers and plantation owners were laden with crippling debts to English merchants. These debts were huge and could usually be inherited, so that several generations of many Virginia families found themselves in hock to London merchants. Thomas Jefferson estimated that Virginians owed British merchants over £2 million. To add insult to injury, money printed in Virginia was quickly losing its value against the British pound sterling, and many collectors refused to accept Virginia paper money to settle debts with English merchants.
On November 27, 1777, the Continental Congress passed a resolution recommending that the states seize and sell loyalists' property. In response, the Virginia Assembly passed a law sequestering British property that passed on January 22, 1778; the British owner kept the title to the property, but the Virginia government would administer the property and collect any profits from it. This law included a program designed by Jefferson to help relieve Virginians of their British debts; a Virginia citizen could pay any money they owed a British subject to the recently-formed Virginia Loan Office instead. The Virginia Loan Office would give the Virginia debtor a certificate of payment that would relieve the debtor of any obligation to repay that debt. The 1778 law said nothing about whether the Virginia government was required to pay the British creditor. Shortly after this law passed, Archibald Cary used this program to pay off £10,000 of debt owed to British merchants.
In 1787, the Virginia Assembly passed a law stating that it would only be liable for debts that Virginia debtors had paid to the Virginia Loan Office up to the original amount of the debt plus six percent interest, and that it would pay in Virginia paper money. So, if a Virginian incurred a debt from a British merchant for 5,000 British pounds sterling in 1770, then paid £5,000 to the Virginia Loan Office in 1778, the state of Virginia would only be liable for £5,000 plus six percent interest per year, payable in Virginia paper money (which was still worth considerably less than British pounds sterling at that time).
By 1793, Cary was dead, and Carter Page became the executor for Cary's estate. Edmund Pendleton represented several British merchants who wanted to claim part of Cary's estate to settle Cary's debts with them. (Wythe's opinion does not state who sued whom first or how the case arrived in the High Court of Chancery.)
Page claimed that when Cary paid his debts due to the British merchants to the Virginia Loan Office in 1778, the debt was settled, and so the British merchants had no more claim against Cary's estate. The British merchants said that paying the debts to the Virginia Loan Office did not settle Cary's debt with them.
The Court's Decision
The Chancery Court held that payments to the Virginia Loan Office did not discharge debts Americans owed British merchants, and ordered Page to include the British merchants Pendleton represented when Page distributed the assets from Cary's estate.
Wythe began by stating that a controversy between an American debtor and a British creditor should follow the same legal principles, regardless of whether the case was heard in a court in the United States, England, or some other country. After the Declaration of Independence, the United States and the British Empire were two distinct political bodies subject to the law of nations, just as any other nations who had never been part of each other would be.
Wythe said that under the law of nations, war does not cancel debts owed between members of two warring nations. A person does not lose their right to collect money due them from a citizen of an enemy nation, nor can that enemy nation's government seize a person's right to collect money. Even when they wrote the 1778 statute that allowed the government to sequester British property, the Virginia Assembly recognized that the law of nations did not allow them to outright seize the property unless the British government had first seized property there that was owned by Americans, which the British government had not done. Furthermore, the Virginia Assembly agreed to follow the law of nature and nations when it passed a law creating its Court of Admiralty in 1779.
A person's right to collect a debt from someone cannot be removed by a law in the debtor's country if the creditor was not a citizen or resident of the debtor's country when the law was passed, nor does a country have the right to substitute something else for the item its citizens are obligated to pay. Virginia can no more require British creditors to accept Virginia paper money for British sterling debts than the British government could require American creditors to accept payment for their debts in malt. The one exception Wythe named was a situation in which a missing creditor's right to collect money is seized by the government in order to pay that creditor's debt to someone else. The flip side of that principle is that a debtor's country cannot cancel that debtor's debt to creditors from other countries.
Continuing with his analysis, Wythe wrote that the state could not possibly have believed that a court, or anyone besides the debtors, would find Virginia's scheme of forcing creditors to accept reduced payments on their debt legal, so the state must have intended for debtors to be able to recover the payments they had made to the Virginia Loan Office from the state.
The Treaty of 1783 nullified any laws by any of the states that hindered British citizens from collecting debts from American citizens. Some American debtors argued that the Treaty of 1783 was void because the British still had soldiers stationed in United States territory and because the British had not compensated American slaveholders for lost slaves, but Wythe said it was not for the Chancery Court to declare a state of war between the United States and the British Empire.
Wythe concluded that if his court is ordered not to issue decrees allowing British creditors to collect debts from Americans, then he would feel equally obligated not to issue orders allowing Virginia creditors to collect debts from British citizens.
It was not related to Page v. Pendleton, but in 1796 the U.S. Supreme Court decision Ware v. Hylton confirmed that the Treaty of Paris nullified any Revolutionary-era Virginia laws that allowed the state to seize British property. Therefore, paying a debt owed a British citizen to the Virginia Loan Office did not satisfy the debt.
Wythe's Page v. Pendleton opinion contained several long footnotes and a fair amount of discussion of issues and principles that were related to the case at hand but that did not directly affect Wythe's decision. Three of the footnotes in particular — a, b, and e — contained some interesting discourses on basic principles of justice. As often happens when Wythe muses on legal principles, references to Greek and Roman classics abound.
Footnote a: Judges should avoid jingoism
In footnote "a," Wythe stated that judges should not succumb to hatred of a particular nation, any more than they should indulge in vendettas against specific people. Judges who do so, Wythe said, should suffer the same fate as the corrupt judge Sisamnes did - a fate that Herodotus described in his Histories and a fate that inspired Wythe when he designed the High Court of Chancery's seal. Wythe said he added the note because of what happened during a case in a different court. In that case, an American debtor let the jingoistic rhetoric flow as he justified not paying a British creditor, and the debtor was showered with praise afterwards.
Footnote b: Acquisition by right of conquest is an outdated notion
In footnote "b," Wythe predicted that some people would object to his finding that a country cannot seize money due to the citizen of an enemy nation and would say that it ran contrary to reigning legal authority. Wythe countered that the idea of acquisition by conquest was a barbaric one, relegated to the days of Ancient Greece and of barbarians as described by Thucydides. Wythe believed that the only contemporary justification for seizing an enemy's goods was when there was no other way for a country's citizens to get reparation. Even then, such tactics needed to be strictly limited, because the property seized in such actions usually belonged to people who had no say in starting the conflict.
Footnote e: What binds a person to a country's laws?
Footnote "e" was a detailed discussion of the justification for subjecting someone to a law's authority, even if that person did not personally consent to the law's creation. Wythe begins with a reference to the sixth article of Virginia's Bill of Rights, which declares that Virginia citizens are not subject to laws they did not agree to, either personally or through an elected representative. Wythe believed that this article applied to laws passed by legislatures, but not to the common law (the law as created by court decisions). All people are subject to the common law because it is the law of nature: e.g., do not kill another person, defame them, invade their property. Courts express these laws to synchronize with all peoples' innate sense of justice. These are the "unwritten laws divine,/Immutable, eternal, not like these/Of yesterday, but made e'er time began," as spoken by Antigone in Sophocles's tragedy by the same name.
Even when it came to laws passed by legislatures, Wythe found important questions. What about women, infants, and other people who had no right to vote? What about people not yet born when a law passes? They did not personally consent to a law, so how can they be bound by it? In response, Wythe called upon the principle of "natural reason". Wythe stated that without society, mankind's native rights would be frequently trampled. To enjoy these natural rights, people must uphold civil society, and to do so, they must agree to follow the laws that their predecessors have agreed on. If a society finds those predecessors' laws unjust, then they should use the society's system to change those laws.
This raised another question for Wythe: how does one decide what a society is? The list of people who make up a nation will be at least slightly different even one hour from now. How can you say it is the same society? Wythe described the nation as an immortal "mystical union of members by successive generations" The "Romans" who ejected the Tarquins are the same "Romans" who defeated Perseus of Macedon, even though more than 300 years separated the two events.
Wythe called upon several images to describe the continuous and ongoing nature of national identity. The Potomac River retains that name, even though it does not have one drop of water left from the time when it was created. Just as Glaucus said to Diomede in The Iliad, the generations of mankind are like a tree; just as a tree's old leaves fall off and new ones take their place, old men die and are replaced by newer generations, but mankind itself keeps its basic character. What Wythe thought best represented the constant nature of national identity, though, was Pythagoras's belief in metempsychosis (reincarnation). Pythagoras was Pythagoras, whether he was nine months old or 90 years old, or whether he was in a previous incarnation such as Euphorbuos, Hermotimus or Pyrrhus. By the same token, a nation whose compact remained intact keeps the same identity, no matter how long ago it was created. So, as Chief Justice Hobart stated in his report of Duncombe v. Wingfield, "an Act of Parliament hath every man's consent as well to come".
People are therefore bound by their country's statutes, even though they personally did not consent to them. Under the same principles, foreign people are bound by their country's statutes. But a nation's laws cannot bind people who are neither citizens of, or residents there.
Works Cited or Referenced by Wythe
Quotation in Wythe's opinion:
A judge should not be susceptible of national antipathy, more than of malice towards individuals – whilst executing his office, he should be not more affected by patriotic considerations, than an insulated subject is affected by the electric fluid in the circumjacent mass, whilst their communication is interrupted. …. [N]one of those citizens, surely, can wish to see the tribunals of their own country so polluted; for which pollution the men who sit in them would, perhaps, deserve the punishment related by Herodotus to have been inflicted on the corrupt Sisamnes, for the allusion to whose story, among the devices on the seal of the Virginia high court of chancery, the present judge of that court acknowledgeth his obligation to the ingenius B.WEST. Explanation: Wythe argues that judges need to be free from bias. His reference to the “corrupt Sisamnes” refers to the following tale of warning: "Thus said Dareios, and having appointed Artaphrenes his own brother and the son of his father to be governor of Sardis, he marched away to Susa taking with him Histiaios, after he had first named Otanes to be commander of those who dwelt along the sea coasts. This man's father Sisamnes, who had been made one of the Royal Judges, King Cambyses slew, because he had judged a cause unjustly for money, and flayed off all his skin: then after he had torn away the skin he cut leathern thongs out of it and stretched them across the seat where Sisamnes had been wont to sit to give judgment; and having stretched them in the seat, Cambyses appointed the son of that Sisamnes whom he had slain and flayed, to be judge instead of his father, enjoining him to remember in what seat he was sitting to give judgment."
Quotation in Wythe's opinion:
National identity hath been represented by sensible images: — ... by a tree; as in the episode of the iliad, Z, containing the dialogue between Diomede and Glaucus ... Explanation: Wythe references the following part of the dialogue between Diomedes and Glaucus: generations of men are like the leaves. / In winter, winds blow them down to earth, / but then, when spring season comes again, / the budding wood grows more. And so with men / one generation grows, another dies away. (Illiad 6.145-50.)
Quotation in Wythe's opinion:
... these laws of nature are, as Antigone says to Creon, in Sophocles, v.463 / unwritten laws divine, /Immutable, eternal, not like these /Of yesterday, but made e’er time began./ Francklin. Explanation: Wythe attempts to refute the notion of nullem crimen sine lege (no crime without law). He explains that some acts are so inherently bad (e.g. murder, theft etc.) that all know that they are crimes. Antigone’s discussion with Creon adds support to Wythe’s claim. Antigone argues that she should have the right to bury the dead (a moral law/imperative) that, has existed since the dawn of time. This is a right that supersedes any royal decree forbidding burial.
Thucydides's History of the Peloponnesian War
Quotation in Wythe's opinion:
Peiracy is now generally denominated hostility to mankind, although it was esteemed, as Thucydides relates, by those whom he calleth ancients, both of greeks and barbarians, not opprobrious but, honorable, and is so esteemed at this day no doubt by some people on the african coast of the mediterranean sea. Explanation: This is a paraphrase of Thucydides’ description of the state of Greece before the commencement of the Pelopponesian War: “For in early times the Hellenes and the barbarians of the coast and islands, as communication by sea became more common, were tempted to turn pirates, under the conduct of their most powerful men; the motives being to serve their own cupidity and to support the needy. They would fall upon a town unprotected by walls, and consisting of a mere collection of villages, and would plunder it; indeed, this came to be the main source of their livelihood, no disgrace being yet attached to such an achievement, but even some glory.” (History of the Peloponnesian War 1.1.1-3.)
- George Wythe, Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions, 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 211.
- Isaac S. Harrell, "Some Neglected Phases of the Revolution in Virginia", 5 Wm. & Mary Quarterly 2d 159, 167 (1925).
- Harrell, 166. Wythe estimated that when Virginians started paying debts to the Loan Office, the money was worth between 1/70 or 1/1000 of its value when the debtor originally incurred the debt. Wythe 211, 217 footnote f.
- Emory G. Evans, "Private Indebtedness and the Revolution in Virginia, 1776 to 1796", 28 Wm. & Mary Quarterly 3d 349, 352 (1971).
- 9 Journals of the Continental Congress 971 (Nov. 27, 1777).
- Ch. 9, 9 Hening 377 (Oct. 1777 Session).
- Wythe took advantage of this program to relieve a debt of £20. Evans, 355.
- Evans, 352-53; 9 Hening, 379-80.
- Harrell, 168.
- 8 Stat. 80 (1783).
- Harrell, 169.
- Ch. 34, 12 Hening 529 (Oct. 1787 Session), citing Ch. 22, 10 Hening 471 (Nov. 1781 Session).
- Wythe was presumably referring to Section 1 of the law, 9 Hening 378.
- Ch. 26, 10 Hening 98 (May 1779 Session).
- 3 U.S. (3 Dall.) 199 (1796).
- Harrell, 169.
- Thucydides, trans. by William Smith, The History of the Peloponnesian War (London: Printed by John Watts, 1753).
- Wythe would later refer to this footnote in Devisme v. Martin to justify his statement that English statutes have authority over English subjects' personal rights, no matter what nation those subjects lived in. Wythe 298, 299 footnote a (1794).
- Virginia Const., Art. I, Sec. 6, available at Virginia Legislative Information System.
- Sophocles, trans. by Thomas Francklin, "Antigone", verse 463, The Tragedies of Sophocles (London: Printed for R. Francklin, 1758-1759). With this phrase, Antigone explains to King Creon why she defied Creon's order by giving her brother, the rebel Polyneices, a proper burial.
- Wythe 211, 215, fn. e.
- Homer, ed. by James Moor and George Muirhead, Tēs tou Homērou Iliados, Book VI (1756).
- 80 Eng. Rep. 400, 402; Hobart 254, 256.
- Wythe 211. Translation: G.C. Macaulay
- Ibid 215. Translation: I. Johnson
- Ibid 214.
- Ibid 212. Translation: R. Crawley