HYLTON v. BROWN, 12 F. Cas. 1129

WASHINGTON, Circuit Justice (charging jury). The question is, what is the operation of the act of March, 1779, on the rights •of these parties? It is contended by the defendant, that the lessor of the plaintiff, claiming under Joseph Griswold the father, who was attainted, and his land seized, and sold, he is barred of all remedy against the purchaser, but must look to the state for indemnification. But this argument is built upon a begging of the question. The defendant asserts, that the father was the person attainted, which the lessor of the plaintiff denies.

If, in fact, he was the person at-tainted, and the only question was, is the attainder erroneous; then upon general principles, independent of the 6th

section of this law, he, or those claiming under him, could not controvert the title of the purchaser in a collateral action; but would be compelled, first, to reverse the attainder, and then to obtain a judgment of restitution. This would have been the case, but for this section; which, upon reversal, prevents the judgment of restitution, as against a bona fide purchaser, and substitutes the state as bound to make reparation.

In cases of attainder, under the law of 177S, there were three modes of proceeding to obtain redress, where an injury had been done to the person at-tainted, or to third persons, pointed out by law. First. Third persons claiming by deeds under or paramount; the attainted person might, within a limited time, interpose his claims to the land, or to satisfaction thereout of debts charged on it, which were to be decided in a particular way. This remedy did not extend to the traitor himself. Secondly.

The attainted person himself, his heirs, executors, and administrators, or those who were prejudiced by the attainder, might, if it were erroneous, reverse it upon the principles of common law; and having succeeded, he would be entitled, not to a judgment of restitution against a bona fide purchaser, but to indemnity against the state. Or, thirdly, any person, other than the at-tainted traitor, or those claiming under him, might bring an ejectment to recover land, to which he has a title, which had been sold in consequence of an attainder.

Now, in this case, the plaintiff does not complain, that there is any error in the attainder; but on the contrary, it is admitted, or at least nothing appears to the contrary, that Joseph Griswold, distiller, at the time of the proclamation, or theretofore, an inhabitant of the state of Pennsylvania, was .correctly called upon and attainted; but he contends, that Joseph Griswold, whose land was sold, was not called upon, and therefore was not, and could not be attainted.

If so, this Joseph Griswold could not have reversed the attainder, however erroneous it might be, because he was neither party, privy, nor was-he prejudiced by it; and of course he could not make himself party to the record. If Thomas Griswold had been called upon and attainted, Joseph Griswold could not have brought a writ of error. The error complained of, is not in the attainder, but in the subsequent seizure and sale of Joseph Gris-wold’s land, in consequence of the attainder.

But, if on a judgment against A, the property of B is taken in execution, the execution is void as to B, and he may recover back his property, or sue the officer and party; but he could not sue out a writ of error to reverse the judgmentto which he was neither party nor privy, nor which (judgment) had prejudiced him at all.

The true distinction is this; — if a person be at-tainted under process, which is incomplete in describing him, as, if the proper additions be omitted; this is an error of which he may avail himself by writ of error; because, having been truly named, he is a party to the record, and may maintain the writ. But, if the description be repugnant to truth, as if he called by a wrong name, or trade, or if he be stated as being of a place, which is not true; then the description does not apply to him.

He never was party to the record; if so, he never was attainted, and therefore he cannot reverse the attainder; but then he is not bound by it, and may consequently sue for his property, which has been seized or sold, in execution of the attainder, as if no such attainder had taken place. How was it in Buffington’s Case? Did he attempt to reverse the attainder? By no means. He could not have done it, since he was not attainted.

But when called upon to show why execution should not issue. he pleaded that he was not the person at-tainted; and this was the opinion of the court, upon the ground, that he was described to be of East Bradford, instead of West Bradford township, and this, though there was no other person known, who answered the description. In Lord Pitsligo’s Case, and in Gordon’s, they did not attempt to reverse the attainder, but filed their claims upon the ground of a false description. If then Joseph Griswold has been falsely described, he is expressly within the 8th

section of the law, and the plaintiff is not barred of his action. The next question is, was the law of the 31st January, 1783, passed posterior to the treaty, or not? If it was, then Mr. Ingersoll has admitted It to be void, as being in contravention of the treaty. This question, I consider in two points of view. First, at what time does a treaty take effect, if no period is fixed in the body of it, or by the agreement of the ministers? Second, at what period did the treaty of peace between Great Britain and the United States take effect, from the terms of the provisional articles? Vatt.

Law Nat. blc. 2, c. 12, §§ 156, 157, says: “That every promise made by the proxy, within the terms of his commission and his powers, is binding on his constituents. At present, to avoid all danger, princes reserve to themselves the power of ratifying what has been concluded by their ministers. The commission of the plenipotentiary is but a procuration cum libera. As princes cannot be compelled, but by force, to fulfil their engagements, it is customary to place no dependence on their treaties, till they have agreed to ratify them.

Thus, as every agreement of the minister remains invalid, till sanctioned by ratification, there is less danger in giving unlimited powers.

But, before a prince can honourably refuse to ratify a compact, made in virtue of such plenipotentiary commission, he should be able to allege strong and substantial reasons; and, in particular, to prove that his minister has deviated from his instructions.” In this extract, I understand Vattel merely to state, that a government is bound to fulfil an agreement of its ministers, if made within the scope of their authority; but, if it refuses to ratify, it is not bound by the agreement; because, according to modern custom, the power of ratifying is reserved by the government, to avoid the inconvenience and danger, which might result from the minister' exceeding his authority; and, if so, then the same author declares, that the sovereign is bound by the agreement, and, unless its operation is postponed by the terms of the agreement, to a particular day, it takes effect from the signature.

The Abbe MabJy does not contradict this, but merely contests the position of Grotius, that the treaty binds from the signature, whether it is ratified or not. Rutherfortli is still more express: he says, vol. 2, p. 581: “That what a government does by their deputies, is their own act; and, consequently, in respect of the nation, it produces the same effect as If they had done it themselves.

In public compacts, which sovereigns make by their deputies, the law of nations is the same as in promises which individuals make by proxy; what they do under the authority of their public commission, binds their principals, even though they should exceed some private instructions from their principals.” Second. When does the treaty between Great Britain and the United States take effect, from the terms of it? Answer; from the time that terms of peace are agreed upon between Great Britain and France, and Great Britain shall be ready to conclude the same.

It is argued, that all this means, from the time the agreement is not only made and signed, but is ratified also. If this was the intention, why was it not so expressed? The ministers knew the full import of the expressions they used, and would never have expressed themselves loosely, when plain, unambiguous expressions were at hand. In the treaty between Holland and Great Britain, the effect of the treaty is suspended till ratification, by express terms.

Whether the treaty between England and France was so suspended, does not appear; and it is not to be inferred, from the circumstance of certain periods from the_ ratification being fixed upon, when hostilities’ are to cease in particular places. But, be this as it may, the provisional articles between Great Britain and the United States being, by the terms of it, to take effect, when terms of peace are agreed upon between Great Britain and France, and Great Britain is ready to conclude the same.

Let us examine these expressions, and see what they mean. “Agreed upon:” that is, when the ministers have come to an understanding, as to the terms of the treaty, and have reduced them to writing. “Concluded:” that is, when the agreement, thus understood, has received its last form, by being signed and duly executed by the minister. It is this which concludes all agreements, whether made by nations or by individuals.

That this is the meaning of the word “concluded," is plain from the above quotation from Vat-tel, and from other expressions used by him in book 3, c. 10, § 238, speaking of truces, where he uses the words as importing a signature, either by the sovereign, or by his general. But it goes on, and -says: “And Great Britain shall be ready to conclude the same.” Now, when the treaty was signed by her ministers, she had shown her readiness to conclude it.

That ratification was not considered as a necessary condition, is plain from the readiness to conclude, being applied only to Great Britain; and this further proves, that Great Britain and the United States would have been at peace, and yet Great Britain and France be at war. For, if Great Britain had concluded the treaty, and even ratified it; yet, though France had refused, still the treaty would have been in force between Great Britain and the United States. If ratification had been meant, it would have provided for the exchange of ratifications, as, in most other treaties is common.

The fact is, and we all know it as a matter of political history, that the United States were anxious to hasten, and France as much so to protract, the conclusion of the negotiations; and the ministers of the United States, did not think it prudent or necessary, to delay the completion of the treaty, after the terms of peace were agreed upon between Great Britain and France, and were finally concluded by the signature of their ministers. [See Gases Nos. 6,980 and 6,9S1.] Mr. Jefferson’s letter to Mr.

Hammond has been read, but so much in detached parts, that it is impossible to say which side may place most reliance on this authority; and it is impossible to do justice to his argument, without going through the whole of it. As a proof of this, look at what is said in the text, page 39, in which he speaks of the treaty being signed by the ministers of Great Britain and France, of which notice had been given to congress; and then adds: “The event having now happened, on which the provisional articles were to come into operation,” &c. “Now happened,” must relate to the signature, or to the notice.

It cannot relate to the latter; because, in the notes, he cites authorities to prove, that the nation is bound so soon as the treaty is concluded, the people, from the time it is made public. He then must refer to the signature; and, if so, it is a complete authority for the opinion we hold. Yet, immediately after, he speaks of this very law of the 31st of June, 17S3, as being out of view upon the subject of infractions of the treaty.

If the United States were bound by the signature, so were the state governments, who stood in a very different situation from individual citizens; the former of whom could not be punished for contravening the treaty, as individuals might. Upon the whole, we are constrained to say, that the treaty between Great Britain and ¡.be United States, was in force from the 20th January, 1783; and, consequently, upon the admission of counsel, of what could not be questioned, the act of 31st January, 1783, is out of the question. The jury found for plaintiff. Exceptions were taken, but no writ of error was prosecuted.