A Magna Carta for the World? The Constitutional Protection of Foreign Subjects in the Age of Revolution
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Magna Carta appears in the strangest places. Mythical figures often do. Broad relevance, authority, and persistence are central to their mystique. Yet omnipresence also strains credulity. For lawyers, at least, a legal myth’s power is usually taken for granted, and the pertinent questions concern what the myth means, whether it applies to the problem at hand, and, if so, how. Historians, on the other hand, ask questions of epistemology and effect rather than exegesis: Why did those historical actors think it was useful to invoke the myth at that moment, what work did they want it to accomplish, and did they succeed? Why, for example, did American judges and lawyers invoke one chapter of Magna Carta, what here is called ‘the merchants’ chapter’, in one of the earliest cases to reach the Supreme Court? The short answer is international credit—in all senses of that term. In the early 1790s, the United States Supreme Court tried a case between the state of Georgia and a foreign British merchant who had extended credit to a colonist before the American Revolution. The dispute began in 1791 when the British creditor, Samuel Brailsford, sought to collect that seventeen-year-old debt and sued his debtor, James Spalding, directly in the federal circuit court. Brailsford had sold Spalding a ‘cargoe’ of slaves in 1774; in return Spalding had tendered a bond valued, in 1791, at more than seven thousand pounds. Brailsford’s attorney pleaded in the federal circuit court that the plaintiffs were ‘aliens, and subjects of his Britannick Majesty’, providing jurisdiction in the federal circuit court on the basis of its alienage jurisdiction. The substantive rule of decision, according to the plaintiffs, was the Treaty of Peace of 1783, which provided that neither side would place ‘lawful impediments’ in the way of debt collection. Despite its formal equality, everyone knew that this was a one-way provision: Americans owed millions to Britons stemming from pre-revolutionary mercantile debt, not vice versa. The debtor (and Georgia) argued instead that the state had confiscated all debts owed to Britons, whether it had actually collected the money owing from patriot debtors or not. Confiscations completed during the war, they argued, were not the postwar impediments envisioned by the treaty-makers. Therefore, Georgia interpleaded in the cause to supplant the British creditor, claiming that it owned the debt. A case between a British creditor and an American state commencing in 1791 and dealing with the messy legal aftermath of the revolution seems an unlikely place to find Magna Carta. But there it is: the parties debated the relevance of the second part of the merchants’ chapter: safeguarding foreign merchants and their goods during war, unless their own government targeted resident English merchants. In other words, no harm to enemy aliens except as retaliation. Tit for tat. Attorneys for the creditor and at least two judges invoked the merchants’ chapter to help find that Georgia—despite the state’s protests—had not confiscated British debts during the war. They attributed to Georgia’s wartime legislators a desire to treat British creditors reciprocally, as American creditors were treated in Britain, and supposed that the merchants’ chapter had influenced the legislators’ decision. In fact, Britain had not confiscated debts owed to Americans. Ergo, Georgia refrained as well. The idea that reciprocity was a fundamental mechanism of international (and interpersonal) relations became something like a social science axiom in the eighteenth-century Enlightenment. It was central to this federal debt case, the participants’ reading of Magna Carta, and many Americans’ understanding of their constitution. Attorney General William Bradford argued that the merchants’ chapter stood for the proposition ‘[t]hat the faith of Commercial intercourse ought not to be violated’. What was at stake was not just past promises. The vindication of old debt contracts would, he argued, also ensure the ‘Prospect of future Credit’. Scrupulous repayment would signal to potential creditors across the Atlantic that, in the United States, credit was safe. In reply, the debtor and state argued that the laws of war recognized the power of confiscation, regardless of what Magna Carta might prohibit in Britain, and the sovereign state of Georgia had exercised that power. The law of nations was the relevant source of law, not the medieval fundament of England’s ancient constitution.
Source Publication
Challenges to Authority and the Recognition of Rights: From Magna Carta to Modernity
Source Editors/Authors
Catharine MacMillan, Charlotte Smith
Publication Date
2018
Recommended Citation
Hulsebosch, Daniel J., "A Magna Carta for the World? The Constitutional Protection of Foreign Subjects in the Age of Revolution" (2018). Faculty Chapters. 902.
https://gretchen.law.nyu.edu/fac-chapt/902
