Page v. Pendleton

Page v. Pendleton, Wythe 211 (1793), discussed whether an American citizen who owed debt to a British citizen had freed themselves of that debt by paying the amount due to the Virginia Loan Office during the American Revolution instead. In this opinion, Wythe discusses the nature of post-war justice, as well as why a nation's laws are binding on its citizens, regardless of when the laws were passed.

Background

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 relive Virginians of their British debts. Under this program, 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 Viriginia government was required to pay the British creditor in turn. Shortly after this law passed, Archibald Cary used this program to pay off £10,000 of debt owed to British merchants.

The [Treaty of Paris] that ended the Revolutionary War included a provision that all genuine debts Americans owed British merchants before the war were to be paid in British pounds sterling.

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 did 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.

The state could not possibly have believed that a court, or anyone besides the debtors, would fine 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 Discussion

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

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 the 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

In footnote b, Wythe predicted that some people would object to his finding that a country can not 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

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 began footnote e 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.