In The Founder's Constitution, an anthology of writings (letters, records of debates and early cases) relating to the Federal Constitution, Chief Judge James Kent’s opinion in Clarke v Morey is included as Document 58 of Article 3, Section 2, Clause 1 (Judicial Power).
On June 11, 1811 Mr. Morey signed a promissory note, payable on demand, for $209.50 in favor of Mr. Clarke. When the debt was not repaid, Clarke brought an action against Morey to recover the money. Morey, however, maintained that Clarke could not bring the action because Clarke, a British subject residing in New York, had become an enemy alien upon the outbreak of war between the United States and Great Britain (the War of 1812). The case was submitted to the New York Supreme Court of Judicature without argument.
Chief Judge James Kent, writing for the Court, stated that under the law of nations, an alien who comes to reside in a foreign country is entitled, so long as he conducts himself peaceably, to continue to reside there, under the public protection, and it requires the express will of the sovereign power to order him away. Furthermore, an alien ordered away as a consequence of the war is still entitled to leave a power of attorney, and to collect the debts by suit. An alien enemy residing in the enemy country will regain the right to sue upon the cessation of hostilities.
In an extensive examination of the Law of Nations, Chief Judge Kent concluded:
The opinion that wars ought not to interfere with the security and collection of debts, has been constantly gaining ground, and the progress of this opinion is worthy of notice, as it will teach us with what equity and liberality, and with what enlarged views of national policy, the question has been treated. A right to confiscate the debts due to the enemy was the rigorous doctrine of the ancient law; but a temporary disability to sue, was all Grotius (b. 3. c. 20. s. 16) seemed willing to allow to hostilities. Since his time, continued and successful efforts have been made to strengthen justice, to restrain the intemperance of war, and to promote the intercourse and happiness of mankind. The power to collect debts, notwithstanding the event of war, is not an unusual provision in the conventional law of nations.
The Court awarded judgment to the plaintiff, Mr. Clarke.
The Historical Society of the Courts of the State of New York 140 Grand Street, Suite 701 White Plains, N.Y. 10601 914.824.5717