Gordon v. Holiday , 1 Wash. C. C. 285 ( 1805 )

PETERS, District Judge,

delivered an opinion in favour of the plaintiff, on all the points.

WASHINGTON, Circuit Justice. The first question is, was Harry Gordon, the father of the lessor of the plaintiff, legally attainted of high treason,, by virtue of the act of the 6th of March,. 1778, and of the proclamation and consequent proceedings thereon ? He was called on, by the supreme executive council, to appear and take his trial, by th£ name of Henry Gordon, now or late of Kennet township, in Chester county; and now or late a military officer in the British army. It appears that he was baptized, and always called and known, by the name of Harry. The other part of his description is true; and the single question on this point is, whether there is a misnomer, which will vitiate the attainder? The use of names is, to describe the individual of whom we speak, so as to distinguish him from some other person; the rule, therefore, as laid down in Gilbert’s History, C. P. and other books, is a rational and sound one; that where two names have the same original derivation, or where one is an abbreviation or corruption of the other, but both are taken promiscuously, and according to common use, to be the same, though differing in sound; the use of one for the other is not a material misnomer. If, in common use, the names be the same, the person cannot be misnamed, if either be used. Griffith’s Case is a strong one to illustrate the rule. Saunders and Alexander, which differ entirely in sounds, are stated not to be distinct names of baptism; because, usually Alexander is called Saunders;» so Piers and Peter, Joan and Jane, Franciscus and Francis, Garret, Gerald and Gerard. But if the name be wholly mistaken; if it be repugnant to truth, as if Alexander be used instead of Thomas, the misnomer is fatal. The question therefore always is; are the names different, not in sound, but in derivation, or in common use. No cases directly in point, have been cited. By the case from Willes’s Reports, it seems that two of the judges thought they might be used as being the same. But the judges certainly thought them different, in the case of The King v. Roberts, 2 Strange, 1214, or the amendment would have been unnecessary. That the legislature of this state thought the names different, ie very clear.

The act of the 31st of January, 1783, after reciting the proclamation, and the proceedings under it, and that fears were entertained by the purchasers of the validity of the sales, on account of the misnomer, and praying to have them confirmed; proceeds to legislate upon the subject. Instead, however, of confirming the sales, which would have been proper, if the names had really been the same in the mind of the legislature, they do the very reverse. They pass the law, the title of which is “An act for the attainder of Harry Gordon,” &c. They order him to appear, and take his trial, by a certain day; which, if he fails to do, he is from thence to stand attainted, and to forfeit his estate, to be disposed of in the same manner, as if he had been legally and rightly named in the proclamation. Here, then, we have a legislative declaration, that Gordon had not been legally and rightly named in the proclamation; and so entirely fatal did the legislature suppose the misnomer to be, that they afford him a new opportunity of saving his life and fortune, from the consequences of an attainder. If he had appeared, and shown himself never to have owed allegiance to the state of Pennsylvania, he certainly would have escaped those consequences. The former attainder is done away by this law, unless two attainders against the same person, can exist, and be in force, at the same time: for, by this law he is to stand attainted, and to forfeit his estate, from and after the 24th of July, if he then fail to appear. This, too, was the meaning of the legislature. For if it was intended to cure the misnomer, on the ground of its immateriality, what had the legislature to do, but to confirm the former attainder and sales. And, if in the Case of the King and Roberts, the court could cure the error, by an amendment; could not this legislature, in their omnipotence, do it, if they supposed the misnomer immaterial? By setting all aside, and directing proceedings de novo, they, in language most emphatic, pronounce their opinion, that the name by which he had been called upon, was repugnant to truth, and that common justice and' humanity required the thing to be done over again. This, then, brings us to the consideration of this law; and to the operation of the treaty upon it. The sixth article declares, that there shall be no future confiscations, &c. The preliminary articles of peace were signed on the 20th of January; eleven days before the passing of this law; and were recognised, and in fact ratified, by the government of the United States, some months before the day appointed for Harry Gordon to appear, and take his trial. Upon this state of the case, it is quite unnecessary to decide, whether the treaty took effect on the 20th of January, when it was signed, because it is not to be questioned, but that it did so, at the moment it was known in this country; and was ratified either formally, or impliedly. The effect of this treaty was, to do away so much of this law, as was calculated to produce a confiscation of Gordon’s estate, on account of the part he had taken in the war; to subject him to the meditated prosecution, or to expose him to future loss or damages in his person or property. If he had appeared on the 24th of July, agreeable to the notice, he could not have been tried; neither could judgment pass against him, by default; the treats', intervening between the law,- and the completion of the confiscation, repealed the former, and prevented the latter; for it was not the law attainted his person, and confiscated his estate; but his conviction, if he had appeared and abided his trial, or his failing to appear. This settles also the last point; for the treaty not only prevented the confiscation of Harry Gordon’s estate, during his life, but protected his interest and estate, in the land that was a fee simple, with all the privileges attending such an estate; so that, on his death, it might be willed or devised; or he might have alienated it. To say that his'interest was protected during his life, but that it was to stand confiscated as against those claiming under him, would be a fraudulent construction of the treaty, which protected the whole. But I do not think that this clause extended to the case of persons claiming under Gordon, but to those who claimed, in consequence of misnomers in the proclamations. But Gordon was to be' specially tried anew, by his right name, under the law. I am therefore of opinion, that the verdict should be in favour of the plaintiff. Verdict for plaintiff.