are equivocal, and may be otherwise amply satisfied? If in several of our treaties of amity and commerce with friendly European powers, the several states are called on, by the most particular and express stipulations, to waive their laws of alienage, in favour of the subjects of such powers, does it readily follow that in a treaty of peace with an enemy nation, an expression entirely congenial with the character of such treaty, and which can be otherwise abundantly satisfied, shall have this most Important effect? Nay, even, if in the treaty of amity and commerce, formed by us with the same power, (Great Britain,) in 1794, some partial privileges on this subject could only be obtained for British subjects, and those conferred by the most explicit and unequivocal terms; if even these privileges, notwithstanding the lapse of eleven years since the date of the treaty of peace, created a general ferment in our country, arising from the recollection of ancient injuries; shall we construe the general words of the treaty before us, to have an equal or more exten. sive effect? The term "confiscation," then, when occurring in a treaty of peace, and espe cially in such a treaty formed by the limited government of the confederation, naturally means, ex vi termini, a confiscation jure belli, and nothing further. If í am right in this idea, it was unnecessary, in the 6th article of the treaty before stated, to annex other and tautologous words, to make this more plain, to confine its signification to forfeitures, on account of the part taken in the war. Such was already its meaning, and additional words would have been entirely superfluous: and this is an answer to the objection arising from the annexation of such words to the prosecutions mentioned in the same article, of which more hereafter. I hold it also to be of great weight, in favour of my construction in this particular, that the confiscations here prohibited have this character more clearly designated, by being interdicted in the same article, and sentence of that article, with prosecutions on account of the part taken in the war. Reed V 621 Reed. If I am right in the above idea, as to the natural and general signification of the term "confiscation," when occurring in treaties of peace; that construction gains additional weight in relation to the treaty before us, by the further consideration that there were, in fact, many such confiscations made by the several state governments, during the revolutionary war. Perhaps I shall be warranted in saying that there were in fact such confiscations made by every state in the union. (a) Some of (a) See Ham those confiscations were made by the very bills of rights or constitutions of the se- mond's letter veral states, but in general by legislative acts. Of the former class it may be seen to Jefferson. that the 25th article of the bill of rights of North Carolina seems to confiscate the proprietary rights to lands within the limits of that state; the legislative acts were of various descriptions, as acts of attainder, of seizure and confiscation, &c., as may be seen at large in the documents attached to the letter just referred to. The Firginia act, upon this subject, after reciting that, by the declaration of independence, by the United States, the residuary subjects of the British empire became enemies and aliens to the said state, enacts, that all the property lying within the Commonwealth, belonging at that time to any British subject, &c. shall be deemed to be vested in the Commonwealth; and a subsequent clause describes who shall be deemed British subjects within the meaning of the act. (b) The passage of this act, ipso (b) October, facto, confiscated the property therein contemplated; and the only inquiry necessary to be made, or which in fact was made, (c) under this act, as it respected the 1779 c. 14. proprietor of the land, was whether he were a British subject, or not, within the (c) See inqui. meaning of the act; there was no inquiry whether he was, by law, an alien. This act was emphatically an extraordinary act of confiscation. It was in addition to, and not in exclusion of, the ordinary municipal law of escheat and forfeiture, on account of alienage. It only reached British property then actually holden; whereas the general law extended also to lands afterwards acquired by British aliens. This act confiscated the property of all British subjects; whereas, the general law only reached the real property of those who were aliens. It may not universally hold, that all British subjects were then aliens, and if the ideas of the plaintiff's counsel were correct the general law would not reach lands acquired here by British antenati. These are prominent marks of distinction between the two laws; and this partial exercise of the extraordinary right of confiscation certainly did not su persede, or interfere with the general law, further than that act has expressly gone. Some stress has been laid upon the act of October, 1784, c. 53. respecting future confiscations. It is not proper for me to avail myself of a knowledge acquired in another place, that it was decidedly the intention of the then legislature to avoid construing the treaty. There were various opinions then existing as to its true construction, and the prejudices and animosities of the day were not inconsiderable. Hence the act eventuated in using the very words of the treaty itself; and that merely by way of yielding the sanction of this state to that instrument as it really existed. That act meant not to take any new or extended ground what sitions in the office of the general Court. Reed V. Reed. soever; and the proviso, contained therein, inhibiting suits commenced posterior to the ratification of the treaty, can only extend to suits grounded on such confiscations as were intended by the treaty and the act to be prohibited. Before I come to a particular examination of the 6th article of the treaty, I will take a short view of the 5th. The character of the confiscations interdicted by the 6th article will be elucidated by considering what kind of confiscations are con. templated in the 5th. That article is in the following words: "It is agreed that congress shall earnestly recommend it to the legislatures of the several states, to provide for the restitution of all estates, rights, and properties, which have been confiscated, belonging to real British subjects, and also of the estates, rights, and properties, of persons resident in districts in possession of his majesty's arms, and who have not borne arms against the said United States. And that persons of any other description shall have free liberty to go to any part or parts of the thirteen United States, and therein to remain twelve months unmolested, in their endeavours to obtain the restitution of such of their estates, rights, and properties, as may have been confiscated; and that congress shall also earnestly recommend to the several states a reconsideration and revision of all acts or laws regarding the premises so as to render the said laws or acts perfectly consistent not only with justice and equity, but with that spirit of conciliation which on the return of the blessings of peace should universally prevail. And that congress shall also earnestly recommend to the several states that the estates, rights and properties of such last-mentioned persons shall be restored to them, they refunding to any persons who may now be in possession of the bona fide price, (where any has been given,) which such persons may have paid on purchasing any of the said lands, rights or properties since the confiscation. And it is agreed that all persons who have any interest in confiscated lands, either by debts, marriage settlements, or otherwise, shall meet with no lawful impediment in the prosecution of their just rights." This article, upon a general view, relates only to legislative acts of confiscation. It relates materially to the refugees, who, not being aliens, were already safe from the operation of the laws of alienage. It relates, also, it is true, to confiscations made of the property of real British subjects; but as it purports to provide for the “restitution of their estates, rights, and properties," it cannot mean to extend to cases of purchases of lands by, or descents to, British aliens, posterior to our separation, nor to the common law proceedings adapted to such cases. In such cases such aliens have not any estate, right or property in such lands, nor would they be restored thereto; if the treaty arrests such proceedings, it would not restore, but - create and enlarge the estates of such aliens. Cases of this kind, and the ordinary proceedings of forfeiture founded thereon, were not therefore contemplated in this article. With respect to the superior claims of those who held land here at the era of our separation, I am not prepared, at present, to say, whether the ordinary proceedings of escheat and forfeiture could ever have devested them. Meaning to touch this topic slightly hereafter, I will only at present say that, if they could not, then, (as no necessity exists for it,) such proccedings shall not be construed to be comprehended in the confiscations mentioned in this article; nor will the case be otherwise, admitting the law to be different, if (as I believe) no forfeitures of this class had in fact taken place in America prior to the date of the treaty and such, therefore, could not have been the ground of any stipulation in it. During the existence of the war, the ordinary law of escheat and forfeiture had not been put in force against British subjects. It had yielded to the more powerful and direct course of legislative confiscation, which was deemed preferable, and was universally pursued. I am authorized to assume this as an indubitable fact, because Mr. Ham mond, (a) after ransacking all our laws and judicial decisions, from the beginning of the war to the time of his writing, has only stated one case (that of Harrison's representatives) in which a decision on this point has been given. That case will be set out presently from the documents attached to the before mentioned correspondence; from which it will appear that it was neither rendered by the Supreme Court of the State (Maryland) in which it was decided, nor rendered until the year 1790. When the devise in question in that case accrued is not stated. Am l'not, therefore, correct in saying that no instances of the enforcement of the ordinary laws of alienage had taken place, in relation to British subjects, prior to the treaty of peace, and that, therefore, in providing for the restitution contemplated in the 5th article, it was wholly unnecessary to meet such cases? Courts, in making their con structions upon laws or treaties, may take notice of general and notorious facts, affecting such construction. The English Courts (for example) have in many in stances taken notice of and acted upon the general delusion created by the South See 1 P. Sea bubble in that country in the beginning of the last century.(6) So, as in the pre(6) Se sent instance, the long and laborious researches of the British minister before not (a) See his letter, p. 10. of the correspondence. ms. 746. ced have produced no instance of the enforcement of the laws of alienage against British subjects prior to the conclusion of the treaty, wherefore shall we give to that instrument à construction confronted by so many objections, and only (at most) necessary, if such decisions had actually existed? It is also not unworthy of observation, that congress are called upon by this article, "to recommend to the several states a reconsideration and revision of all acts or laws regarding the premises," thereby meaning such special and particular statutes as may have been passed by the state legislatures on the subject: they are not enjoined to recommend an exemption in favour of British subjects from such disabilities, as accrued, not by virtue of particular legislative acts, but by the conjoined effect of the revolution, and the common law, relating to alienage, antecedently existing in America. If, then, the 5th article of the treaty relates to legislative confiscations only, let us next inquire whether the 6th article is to be understood in a more extensive point of view; bearing in mind the general principle, that the same word, occurring in different parts of an instrument, shall generally be understood in the same sense. That article is as follows: "That there shall be no future confiscations made, nor any prosecutions commenced, against any person or persons, for or by reason of the part which he or she may have taken in the present war, and that no person shall on that account suffer any future loss or damage, either in his person, liberty or property; and that those who may be in confinement on such charges at the time of the ratification of the treaty in America shall be immediately set at liberty, and the prosecutions so commenced be discontinued." This article, upon the whole context of it taken together, can only relate to those who, being American citizens, afterwards became refugees, and joined the enemy; it cannot relate (in a collective point of view) to real British subjects. Keeping out of view, for the present, that member of the article, which prohibits future confiscations, and which requires a more particular examination, would it not be absurd to stipulate that after peace had taken place between the two nations, we should commence no prosecutions against real British subjects for the part they had taken in the war? That part was not, in them, a culpable part; it was one which their duty and allegiance as subjects required them to take. Not residing in this country, nor being oppressed as the Americans were, it was not their business to join in our revolt, nor to take a part in our battles. If there had been no such article in the treaty, and America had thereafter commenced such prosecutions against such British subjects, Great Britain would have justly considered them as acts of hostility against her. This provision, then, as relative to real British subjects, is wholly superfluous, and unnecessary; it shall not, therefore, be construed to have relation to them. But, with respect to the American refugees, this stipulation was strictly necessary and proper. They had become citizens of the American states, and without expatriating themselves, had joined the standard of the enemy. After the peace, the several states might justly have called these their offending citizens to a severe account, for their conduct; but the humanity and honour of the British nation was deeply interested to protect them; to protect these American traitors from the vengeance of their own governments. The latter part of this article therefore applies exclusively to them; however it may be with the former. The interdiction of prosecutions for the part they had taken in the war, and of loss or damage accruing therefrom, as it related only to them, so it alone effectually secured them from such common law forfeitures as were incident to attainders or prosecu tions for treason. As to confiscatious, in relation to these persons as they were not legally aliens, in the several states, they were already sufficiently safe from the ef fects of the laws of alienage. The inhibition then of legislative confiscations, conjoined with the interdiction of prosecutions on account of the part taken in the war, would entirely secure and protect the refugees. Wherefore then give the treaty a construction which entrenches upon the municipal rights of the states, when every necessary end, in respect of the refugees, can be attained, by understanding the term "confiscations" in its usual and ordinary sense? With respect to real British subjects, it is equally absurd to apply to them the interdiction of the prosecutions, and tautologous to extend to them the confiscations prohibited in this article, even meaning thereby legislative confiscations. At the most, the article can be so understood, as to them, only through abundant caution. We wili next inquire whether any necessity exists, in relation to them, (as it clearly does not in relation to the refugees,) to strain the term in question, beyond its usual and proper signification, and so far as to arrest the operation of the general laws of alienage? The policy of the British government may justly be considered as different in relation to lands held here by their subjects at the time of our separation, and those afterwards acquired. With respect to the former lands, they are safe in the hands Reed V. Reed. Reed. V. Peed. of such holders, by the principles of the common law concerning escheat and forfeiture, literally understood. The principles of that law, as understood in England, not permitting a renunciation of the original allegiance, nor contemplating the event of the erection of a new and different government, the case now before us was never presented in Eng land, nor provided for by their law. The only inquiry in that country had relation to the capacity of the person purchasing or claiming by descent, at the time of such purchase or descent respectively. The British holders of land in this country, at the era of our separation, having been therefore capable of obtaining and holding lands here at their respective times of acquisition, committed no offence against our laws, and are safe from the penalties of the laws of eseheat and forfeiture, by the literal terms of the common law. It is a great question, but one respecting which I have formed no final and decided opinion, whether the common law should be moulded, in this country, on the great principle that eitizens may become aliens, and of course incapable of acquiring lands, so as to reach this case also, of lands lawfully acquired, and only rendered unlawful to be holden (if at all) by matter ex post fucto; or whether a respect for vested and existing rights, falling in with the liberal spirit of the modern law of nations on this sub(a) Vattel, jeet,(a) should turn the scale in favour of a literal adherence to the English law, p. 575. $ 200. and thus protect lands actually holden here by British subjects, at the time of our p. 483. 76. separation. If such should be esteemed the correct opinion, the lands of the then holders are already safe from the law of escheat and forfeiture; and the treaty therefore need not receive an extended construction in order to protect them: and as such lands are also protected from legislative confiscations, (or, in other words, acts of hostility,) by the mere conclusion of the peace, the stipulation in question need not be applied at all, to real British subjects, even in relation to lands by them holden in this country before the war. But, however this may be, and whatever strong obligation there may be upon sovereign to guaranty to his subjects lands held in the enemy's country at the time of the commencement of hostilities, and, however this circumstance might weigh in forming a construction of a treaty when such a case shall actually occur, the case is widely different in respect of future, eventual and possible acquisitions; future, I mean, in relation to the establishment of our new government, and the actual com. mencement of hostilities. Such is precisely the character of the case now before us; and what makes it still infinitely weaker is, that it accrued even long after the signature of the treaty of peace!! In the case of war, all civil intercourse, between the subjects of the different nations, becomes prohibited and unlawful. This was par ticularly the case in our revolutionary war; the statute of 16 Geo. III. on the part of Britain, and many similar acts on the part of the several states, having prohibited all, but a hostile, intercourse between the people of the belligerent nations. In such a state of things, therefore, there would be but few to purchase lands (in the ordinary sense of the term) in either country; and even in respect of devises and descents to British subjects, we cannot, without imputing a gross ignorance to our people, in relation to the laws of alienage, (an ignorance which could not, especially, be pretended, in this Commonwealth, after the strong legislative declarations on the subject contained in the before-mentioned act of 1779,) suppose that many instances took place of devises being made, or descents permitted, to those who, in the double character of enemies and aliens, were liable to the double penalties of legislative confiscations, and municipal forfeitures on account of alienage. The permission of such vain and finitless devises and descents, would argue great negligence and weakness on the part of our people; and we may therefore fairly conclude that cases of this class, occurring during the war, were probably few; and those as I have already said, possessed no strong claim on the British king to stipulate in their favour. Besides, no construction can be made, in the present instance, in favour of heirs and devisees, which will not equally operate in favour of actual purchasers of land here, (in the ordinary sense,) who, with their eyes open, have vio lated the laws, and contravened the policy of their sovereign! If a plaintiff of this description were now before the Court, would the construction of the treaty be extended in his favour? Certainly not. But the construction must be uniform; and it is a sound rule that in making a construction, all the consequences are to be taken into consideration. I repeat, therefore, that the cases of any of these classes were probably but few; that none of them had any strong claim upon the British king to stipulate in their favour, and that the actors in some of them actually contravened his policy and injunctions. These cases were therefore probably not contemplated nor considered in forming the treaty, or if so contemplated, were abandoned on account of the weakness of their pretensions. But further, British subjects so claiming on any of the three grounds of descent, devise, or actual purchase, held not actual interests, with reference to the epoch of our independence, but mere possibilities of interest, (even admitting the question of alienage to be in their favour,) interests emphatically in nubibus, interests often I have avoided, as much as possible, in this whole discussion, having reference to that treaty (the treaty of 1794:) I must, however, here repeat my remark, that that treaty has not left vested and existing rights to rest upon the same basis with future, contingent and possible ones; and that while that treaty has guarantied, in a remarkable manner, the property in lands then actually holden in either country, it has suffered those future and possible rights, together with this famous doctrine of legitimation, to perish in the quicksands of the revolution; to be cast into the fathomless vortex prepared, by that revolution, for all those parts and principles of the common law of England, which are heterogeneous to our republican institutions! If it should even (contrary to what seems to have been decided by the Supreme Court of the United States as before mentioned) be argued that that treaty protects and enlarges the null and defeasible interests acquired here by British subjects up to the time of its formation, it proves nothing in relation to the treaty of 1783, both because the present general government of the United States has powers, perhaps, competent to that purpose, and because the treaty of 1794 has used strong words to effect it; in both which important respects, the treaty of 1783 is widely different. As the 5th article of the treaty only recommends to the several states to do what congress had no power to do absolutely, i. e. to refund money produced by confiscations, and if congress, as I contend, had no greater right to arrest property vested in the several states by their laws of alienage, than to demand the money contemplated by the 5th article, if such arrestation had been contemplated by the 6th article, would not the style of recommendation have been also kept up therein? and as there is a positive interdiction of "confiscations" stipulated by that article, shall we not infer from this change of style that it relates merely to such confisca tions as congress possessed an absolute right to prohibit? It may not be improper to add, that another part of the terms of the clause in question seems to favour the construction I contend for. These terms are "that there shall be no future confiscations made." This term "made," seems strongly to import aa active measure to effect a forfeiture, such as a legislative act, and not that kind of confiscation which is produced by the ordinary and passive operation of the law of escheat and forfeiture. I have so far considered this case as if it were a case of forfeiture; whereas it is a right accruing to the commonwealth by way of escheat. Every thing that I have now said, to discriminate between forfeiture and confiscation, holds more strongly in relation to a right accruing by escheat. It is doing much more violence to the VOL M 4K Reed V. Reed. |