was not one of the United States of America, but was one of his Majesty's colonies in America, then in open rebellion against his Majesty, &c. General demurrer to the 4th and 5th pleas. 1789. FOLLIOTT against OGDEN. Rejoinder.-Issue joined on the 1st and 2d pleas. To the 3d replication, that before the making of the said law of the State of New York, in the 3d plea mentioned, to wit, on the 4th of July, 1776, the several colonies in America (mentioning them all by name, and among them New York and New Jersey) separated themselves from the government and crown of Great Britain, and united themselves together, and were by the people of the said respective colonies in Congress, declared and made free and independent states, by the name and style of the United States of America, and to have full power to do all acts and things which independent states of right may do; that on the 3d of September, 1783, by the definitive treaty of peace and friendship, made and signed at Paris on that day, between hist Majesty and the said United States of America, his Majesty acknowledged the said United States of America to be free, sovereign, and independent, states, and treated with them as such; and by the said treaty, the several laws which had been made, and passed by the legislatures of the said respective states, after their declaration of independence, for the confiscation of the property of persons within the said respective states, were recognized and admitted to be valid; and that before the making of the said law of the State of New York, to wit, on the 4th of July, 1776, and from thence continually hitherto, the said United States became, and were divided from his Majesty's dominion and government, and absolutely independent thereof, and that long before, and at the time of making the said law of the said State of New York, and from thence hitherto, the people of the said state have exercised, and still do exercise, sovereignty, legislation, and government, within the said State of New York, separate and distinct from the legislation and government of Great Britain, and that the said law of the said State of New York, from the time of the making thereof, hitherto hath been [126] and still is in full force and effect, &c. Joinder in demurrer to the 4th and 5th pleas, &c. Surrejoinder. That by the treaty of peace, the said several laws, &c. were not recognized and admitted to be valid, &c. Rebutter. That by the first article of the treaty, his Britannic Majesty acknowledges the said United States to be free, sovereign FOLLIOTT against OGDEN. 1789. sovereign and independent States, and treats with them as such: that by the 5th article of the treaty, it was agreed between his Majesty, and the United States of America, that the Congress should earnestly recommend it to the legislatures of the respective States, to provide for the restitution of all estates, rights, and properties, which had been confiscated, belonging to real British subjects, and also the estates, rights, and properties, of persons resident in districts in the possession of his Majesty's arms, and who had not borne arms against the said United States; and that persons of any other description, should have free liberty to go to any part of any of the thirteen United States, and therein remain twelve months unmolested in their endeavours to obtain restitution of such of their estates, rights, and properties, as might have been confiscated; that Congress should also recommend to the several States a reconsideration and revision of acts and laws, &c. and should also earnestly recommend to the States, that the several estates, rights, and properties, of such last-mentioned persons, should be restored to them, they refunding to any persons, who might be then, at the time of making the said treaty, in possession, the bona fide price (where any had been given) which such persons might have paid in purchasing the said estates, rights, or properties, since the confiscation, &c. and that no persons who then had any interest in confiscated lands, either by debts or otherwise, should meet with any impediment in the prosecution of their just rights, that the Plaintiff, at the time of making the said law of the State of New York, and of the signing the definitive treaty, was resident in a district in the possession of his Majesty's arms, within the State of New York, and had not borne arms against the said United States; and also that by the 6th article of the treaty, it was agreed, that there should be no future confiscations made, nor any prosecutions commenced against any person by reason of the part which he might have taken in the then war, and that no person should suffer any fu[127] ture loss, either in his person, liberty, or property, and that those who might be in confinement on such charges, at the time of the ratification of the treaty, should be immediately set at liberty, and the prosecutions so commenced should be discontinued, &c. General demurrer to the rebutter, and joinder in demurrer. Serjt,, for the Plaintiff, and Le Blanc, Serjt., for the Defendant, and a second time in the present term, by Lawrence, Serjt., for the Plaintiff, and Adair, Serjt., for the Defendant. The arguments on the part of the Plaintiff, were in substance as follow: The two material questions which arise on these pleadings are, 1. Whether under the circumstances of this case the Plaintiff had a right to sue; 2. Whether under those circumstances, the Defendant was liable to be sued in England on a bond made in America? 1789. FOLLIOTT against OGDEN. The first question may be resolved by considering the effect of the act of attainder and confiscation passed against the Plaintiff by the State of New York; the second, by considering the effect of the like acts of the State of New Jersey, passed against the Defendant. Now these acts having been made by persons who, at the time of making them, were subjects in open rebellion, must have been at that time void. If they were allowed to be valid, it would follow that the acts of rebels are binding, in proportion to the violence of their rebellion. Laws can only bind those who are subject to them; but no one can be legally subject to the acts of rebels. Although in this country, the protectorship of Cromwell continued many years in possession of sovereign authority, yet it was necessary at the Restoration, to pass a law (a) expressly to confirm such proceedings of the commonwealth, as were thought proper to be confirmed, all others being void, having been made by rebels. An usurped power can make no valid laws, as long as efforts are made, to reduce those who usurp it, to obedience. Continued efforts were made by Great Britain to bring America to submission, long after the acts in question were passed. It is laid down by Puffendorff (b), that "If the constitution of a state be altered "by an unjust rebellion, the liberty thus usurped, continues so "long unlawful, as the rightful prince shall labour to reduce "the rebels to obedience, or at least, shall by solemn declara- [128] "tion protest, and preserve his right over them." The Defendant does not indeed, in his rejoinder, insist on the sovereign authority of the State of New York, at the time of passing the law against the Plaintiff, but relics on the subsequent treaty of peace to confirm that, together with the other laws of attainder and confiscation. But the treaty could not have this effect. (a) 12 Car. 2. c. 12. (b) Lib. 7. c. 7. 8. 5. 1789. FOLLIOTT against OGDEN. [129] It could not mean to ratify those acts which were done by the Americans in a state of rebellion, and at a time when this country was labouring to reduce them to obedience; it takes notice of such acts, but does not imply a retrospective confirmation of them. But supposing the design of the treaty had been to confirm them, yet the king had no such power. The crown cannot ratify acts of violence, without the consent of the subject, expressed by passing a law for that purpose. The sovereign of a state may abandon such of his subjects as he is unable to protect or govern, but he cannot deprive them of the legal rights of that society into which they originally entered: he cannot force them to submit to the authority of another state. Vatel, liv. 1. c. 18. s. 195. Puffendorff, lib. 8. c. 5. s. 9. So in the present case, the king had no power to confirm the attainder of loyal subjects of his government, made while they were under the protection of Great Britain, to vest their property in the American States by ratifying the confiscation of it, nor to deprive them of the benefit of their personal remedies and engagements. If this bond therefore had been actually seized by the people of New York, it could not have been contended that the Plaintiff's right of action was taken away by the seizure made, flagrante bello, and before any acknowledgment of the lawfulness of the power making it; but as the bond was not seized, as it was never divested out of him, and as he is still possessed of it, clearly no principle of law can prevent his suing upon it in England. He could not have brought an action in America, being there proscribed, and therefore had not his choice of a double remedy. But admitting the legality of the proceedings against the Plaintiff, the Defendant cannot take advantage of the criminal laws of a foreign country. A mere assignment of property might be acknowledged, but the vindictive acts of one state cannot be enforced in another; it being a principle of the law of nations, that a criminal can only be punished by that state whose laws he has offended. Vatel, liv. 1. c. 19. s. 232. But if this plea were allowed, of the disability of the Plaintiff to bring the action, offences committed by him in America would be punished in England. The second question may be answered, by examining whether the Defendant can avoid the Plaintiff's demand, by pleading his own attainder, and the confiscation of his property. At the time when the contract was made, the Plaintiff had a right of action; 1789. FOLLIOTT against OGDEN. action; this right was personal and transitory, it continued in him as long as the bond remained in his possession unsatisfied, and was not divested by any situation, in which the property of the Defendant was placed. The Plaintiff is not stated, in this plea, to have been guilty of any offence; the Defendant relies on his own treason against the State of New Jersey. Now admitting his attainder and the confiscation of his effects to be legal, the object of those acts was punishment, not reward, to distress, rather than to favour. They did not mean to prevent a creditor from bringing a personal action, or to destroy any contract made by him with the Defendant. Care was taken, in the first place, that his debts should be paid, but if he be suffered to avail himself of this defence, the design of these laws of New Jersey will be inverted; the debtor will receive the benefit of them by avoiding the payment of a just debt, and the creditor will be deprived of a provision, expressly made in his favour. A proscribed American is not entitled to greater privileges than any other British subject. There is no ground in the law of England to exempt an attainted person from his engagements; though he be legally dead to every other purpose, he is alive to that of being sued, and may be served with pro cess for debt while in prison, though his whole estate be confiscated; otherwise he would have a privilege which the law never intended. Hawk. P. C. b. 2. c. 36. s. 5. A bankrupt forfeits the whole of his property, but would be liable to be sued, if it were not for the provisions of a positive statute. But the Defendant farther insists, that his forfeited property was more than sufficient to discharge this, with his other debts, and to that fund, the Plaintiff might, and ought to have resorted. Supposing this to be true, it is not a bar to the present action; it shews only that the Plaintiff had another remedy, but does not take away his right of choosing which remedy he would pursue it can be no defence at law, whatever it may be in equity. Bannister v. Trussell, Cro. Eliz. 516. Hornby v. Houlditch, Andr. 40. Houlditch v. Mist, 1 P. Wms. 695. Kempe [130] v. Antill, 2 Browne 11. Wright v. Nutt, in Canc. Jan. 23. 1788 (a). But in fact, the fund set apart for the payment of the Defendant's debts, was not solvent to the Plaintiff, who was proscribed. He brings his action here, to obtain that satisfaction of which he was deprived in America. All circum(a) Vide post. 136. stances |