SMITH
v.
THE STATE OF MARYLAND, AT THE INSTANCE AND FOR THE USE OF CARROLL AND MACCUBBIN.
Supreme Court of United States.
March 16, 1810.*290 Johnson, for the plaintiff in error.
Ridgeley, contra.
*304 WASHINGTON, J.[*] delivered the opinion of the court, as follows:
This cause comes before the court upon a writ of error to the court of appeals of the state of Maryland; and the first question is, has the supreme court of the United States appellate jurisdiction in a case like the present? It is contended, by the defendants in error, that the question involved in the cause turns exclusively upon the construction of the confiscation laws of the state of Maryland, passed prior to the treaty of peace, and that no question, relative to the construction of that treaty, did or could occur. That the only point in dispute was, whether the confiscation of the lands in controversy was complete, or not, by the mere operation of those laws, without any further act to be done. If the former, it was admitted, on the one side, that the right of Ann Ottey, the British subject, was not saved or protected by the treaty; if the latter, then it was agreed, on the other, that it was protected, and that no proceedings subsequent to the treaty, in order to perfect the confiscation, could be supported.
This argument proves nothing more than that the whole difficulty in this case depends upon that part of it which involves the construction of certain state laws, and that the operation and effect of the treaty, which constitutes the residue of the case, is obvious so soon as that construction is settled. But still the question recurs, is this a case where the construction of any clause in a treaty was drawn in question in the state court, and where the decision was against the title set up under such treaty? The only title asserted by the defendants in error, to the land in dispute, is founded upon an alleged confiscation of them by the state of Maryland, and a conveyance to them of the right thus acquired by the state. The title set up by the *305 plaintiffs in error, for Ann Ottey, and the only one which could possibly resist that claimed by the grantees of the state, is under the treaty of peace; the 6th article of which protects her rights, provided the confiscation, by the laws of the state, was not complete prior to the treaty. The point to be decided was and is, whether this be a case of future confiscation, within the meaning of the 6th article of that treaty; and, in order to arrive at a correctresult in the decision of that point, it became necessary, in the state court, and will be necessary in this, to inquire whether the confiscation, declared by the state laws, was final and complete, at the time the treaty was made, or not? The construction of those laws, then, is only a step in the cause leading to the construction and meaning of this article of the treaty; and it is perfectly immaterial to the point of jurisdiction, that the first part of the way is the most difficult to explore. Although the defendant's counsel admit, and the supreme court of the state may, in this particular case, have decided, that, where the confiscation is not complete before the treaty, the estate attempted to be confiscated is protected by the treaty, still, if, according to the true construction of the state laws, this court should be of opinion that the acts of confiscation left something to be done necessary to the perfection of the title claimed under them, which was not done at the time the treaty was made, we must say that, in this case, the construction of the treaty was drawn in question, and that the decision of the state court was against the right set up, under the treaty, by one of the parties.
This leads to the consideration of the merits of the cause, which depend upon the question before stated, viz. whether the confiscation of the lands in question was so far complete by the laws referred to, that the title and estate of Ann Ottey was devested out of her and vested in the state, prior to the treaty of peace? This must depend upon the true construction of the acts passed in the year 1780, chapters 45. and 49. as it is not pretended that any proceedings were instituted in the nature of an office, to complete the forfeiture *306 of these lands, upon the ground of alienage or otherwise.
The first law declares generally that "all property within this state, belonging to British subjects, debts only excepted, shall be seized, and is hereby confiscated to the use of this state." Anticipating, as it would seem, that questions might arise, after peace, in respect to lands not proceeded against according to the rules of the common law, the legislature, in the same session, passed a second law, appointing certain commissioners, by name, to preserve all British property seized and confiscated by the former law, and declaring the said commissioners to be in the full and actual seisin and possession of all British property seized and confiscated by the said act, without any office found, entry, or other act to be done, with power to the said commissioners, to appoint fit persons to enter and take possession of said property, for the purpose of its preservation.
It would seem difficult to draught a law more completely operative to devest the whole estate of the former owner, and to vest it in the state. The arguments against giving to these laws such an effect are, that the expressions used in these laws do not import a confiscation of merely equitable estates, and that no estates were intended to be confiscated, but such as were discovered and seized into the hands of the state, prior to the treaty.
It is true that the word property, used in both laws, means the thing itself, intended to be affected by them, whether it were land or personal property; but then it is equally clear that the thing itself, whatever it might be, ceased, by the operation of these laws, to belong to the British subject, and became vested in the commissioners, for the use of the state. The cestui que trust, though not in possession of the property, was, nevertheless, the real owner of it, and, if the property or thing itself had come into the actual possession of the commissioners, who would have held it to the use of the state, it would seem difficult to maintain the position, that a scintilla of interest *307 or estate remained, for an instant afterwards, in the former owner.
But no act of the commissioners was necessary in order to obtain seisin in the land, to support the use thus transferred from Ann Ottey to the state. No seizure was necessary. The second law considers that all property belonging to British subjects was, by the mere operation of the first law, seized and confiscated; and declares that the commissioners were then in the full and actual seisin and possession of the property, so seized and confiscated by the first law, though no entry or other act had or should be made or done.
Being thus in the actual seisin, under the second law, which seisin had been declared, by the first law, to enure to the use of the state, it is perfectly immaterial at what time the right of the state to the lands now in controversy, thus completed prior to the treaty, was discovered, or at what time actual seisin and possession was obtained. From the time that the second law came into operation, the possession of the trustees of Ann Ottey either ceased to be legal, or it was to be considered as the possession of the commissioners to the new use which had been declared by law. The present suit is between persons claiming under the state, and others who either held the lands wrongfully, or for the use of the state, and it is, in no respect, necessary to the perfection of the change of the property produced by the laws of confiscation.
Judgment affirmed, with costs.
NOTES
[*] The Chief Justice did not sit in this cause. The judges present were Washington, Johnson, Livingston and Todd.