1 Mass. 347 | Mass. | 1805
The question is, whether the plea in abatement now offered can be received.
I am clearly of opinion that it cannot.
I am of the same opinion ; because it is after a plea in bar offered and filed by the Attorney-General.
In this case, the Attorney-General appeared in behalf of the state at Feb. term, 1802, since which there have been many general imparlances, each of which admitted the personal ability of the plaintiff in error; and I have no doubt that it is now too late to deny it. To have preserved the right of making this objection to the capacity of the plaintiff, the defendants should have had a special imparlance, which would, undoubtedly have been granted had it been asked for. I do not think that the principle contended for is necessary to preserve the essential rights of the government; and I do not think that the admission of it would be extremely inconvenient and mischievous to the security of the citizens.
I am of opinion that the plea in abatement [ * 359 ] * cannot be received; it being offered after a plea in bar filed by the Attorney-General.
I am of the same opinion. The maxim, Nullum tempus occurrit regi, does not apply; that extends only to cases where rights are concerned. The question before us relates merely to the mode of proceeding in the cause. And it would be dangerous to admit the construction contended for, in which the rights of individuals are so materially concerned.
On Thursday, the Attorney-General filed a motion to quash the writ, assigning for cause that the court below was a new-created jurisdiction, and to which a writ of error does not lie from this Court.
The Court said it was unnecessary to file the motion, because an objection to their jurisdiction, where it is apparent on the record, might be taken advantage of in any stage of the proceedings. But they permitted the motion to be filed.
Upon this the Attorney-General entered a plea, viz. “ And now, after the motion made at this term to quash the writ is filed, and the parties agreeing that the advantage proposed therein may be taken and decided in the plea that the judgment is in
As to the first error assigned. The information does not charge any overt act; none, at least, is set forth in that plain, specific man ner which the law requires. It is true that the words of the statute are followed, but the statute gives only a general description of the several ways in which a person may be deemed to have renounced his civil and political relation to the United States, and thereby to have forfeited his estate. One * cause of [ * 360 ] forfeiture mentioned in the statute levying war, and conspiring to levy war, against the government and people, &c.; another, adhering to the king of Great Britain, his fleets and armies, enemies, &c.; giving them aid and comfort; and the information, following the act, states in the same general way that the ancestors of the plaintiff in error did levy war, &c. &c. These expressions in this statute, which was passed April 30, 1779, are very nearly the same as those in the statute of 1777, against treason. In an' indictment for treason, it would not be sufficient to take the general words of the statute, but the overt act or acts must be particularly specified and described. So in the statute against murder, the words of the statute are general; but it would not be sufficient in an indictment for murder to allege merely in general words that the prisoner had murdered, &c., but the indictment must specify the particular act, &c. A great variety of similar cases might be mentioned ; and in prosecutions so highly pénalas those upon the “absentee act,” amounting in their consequences to an attainder, the same precision is and ought to be required as in prosecutions for treason, murder, and other capital crimes.
As to the second error assigned. It does not appear by the record that notifications were issued. By the act passed December 4, 1780, in addition to the first act, the act of 1779, notifications were to be published in three of the public newspapers, thirty days previous to the sitting of the court at which the judgment was to be rendered : no such notice appears by the record to have been given : all that appears is that the court ordered notifications to oe issued. [Sedgwick, J., suggested that there was an analogy between this case and the practice of entering up judgment on default in civil actions in which cases the notice of the suit which is returned by the officer, on the writ, is never * inserted [ * 361 ] in the record of the judgment; and as this record states that notifications were ordered to be issued, he asked whether the Court here would not now presume that the notifications were made.]
As to the third error assigned. All that is there assigned for error is abandoned, excepting the allegation that it does not appear there was a trial. The judgment is founded merely on non-appearance of any person to defend, as is obvious upon inspection. The record is, “ but no person appearing to defend this suit, it is therefore considered by the court that the estate escheat,” &c. In this species of prosecution, where there was a default of appearance, it was the duty of the court to examine and decide upon the case. The act of April, 1779, sect. 3, provided for a trial by jury, who were to say whether the estate demanded, or any part of it, was forfeited, and ought to escheat by force of the act, &c., and this whether any person appeared to defend or not. The act of Dec. 4, 1780, sect. 2, provides that when no person shall appear to defend, as mentioned in the former act, judgment shall be rendered, &c., without any trial by a jury. This was intended to give the trial to the Court in lieu of the trial by jury. [ * 362 ] * As to the fourth error assigned, femes-covert are not within the statute. They are not within the letter of the act; almost all the provisions of the act are masculine; nothing is said about females, excepting where provision is made for their dower. It is admitted that there are cases where statutes will extend to females, where the expressions are similar to those used in this act. But it is manifest from the act itself that women were not intended to be included under the general description of persons mentioned.
The first sect, of the act says “ that every inhabitant and member of the state who,” &c. Upon the strict principles of law, a femecovert is not a member; has no political relation to the state any more than an alien ; upon the most rigid and illiberal construction of the words, she cannot be a member within the meaning of the statute. As to femes-covert being members of a commonwealth, see Burlem, 214. The legislature intended to exclude femes-covert and infants from the operation of the act; otherwise the word inhabitan would have been used alone, and not coupled with the word member. This construction is strengthened by the provision in the same (the
It is impossible to read the preamble to the statute without seeing the object and intention of the act. The object was not to punish, but to retain the physical force of the state, as is evident from the expression, personal services in times of actual invasion, opposing by arms, aiding the enemy, &c. How much physical force is retained by retaining married women ? What are the personal services they are to render in opposing by force an actual invasion? What aid can they give to an enemy ? So far are women from being of service in the defence of a country against the attacks of an enemy, that it is frequently thought expedient to send them out of the way, lest they impede the operations of their own party.
In construing statutes, no rule is better established than that general expressions shall be restrained by the manifest intent of the legislature to be collected from the whole act taken together.
Plowd. 205; the stat. Westmin. 2, c. 25, enacts, that in an assize, if any being named disseisor * do personally [ * 364 ] allege the exception, viz. if he shall vouch a record and fail at the day, hu shall be adjudged for a disseisor without taking the assize, &c.; yet if a feme-covert, with her husband, vouch a record in an assize, and fail, she shall not be attained as a disseisoress,
Additional errors, viz.:—First, That no such seisin of Anna Martin is alleged as comes within the statute.
Secondly. That judgment was rendered after one continuance, when by the statute there ought to have been two continuances' before judgment.
As to the first point, it does not appear that Anna Martin was so seised of the estate as to make it liable to be confiscated The information alleges that William Martin was seised of the freehold during his life, and Anna Martin of the remainder in fee; or that both were seised to his use during his life with a remainder to her in fee: the substance of the allegation, as it respects her seisen, is that she had a remainder in fee. There are no words in the statute which extend to an estate in remainder.
As to the continuances. The act of April, 1.779, expressly directs two continuances where ho person shall appear at the term next after the first continuance to take upon him the defence of the suit
As to the first error. It is stated that no offence is alleged in the information. Nothing can be assigned for error which contradicts the record. This assignment is contrary to the record ; by recurrence to which it will appear that an offence is charged, and in the very words of the law. * By the statute a [ * 366 ] variety of acts of the persons are made cause of forfeiture of the estate ; if any one of those acts is sufficiently alleged, the judgment ought to be supported ; even admitting, though we by no means do it, that it was necessary to be as particular in this prosecution as in an indictment. The act which it is insisted is sufficiently charged, is that of withdrawing out of the state ; the information is as particular, precise and definite as to the time, place and manner of this act, as would be required in an indictment, or as can be expressed by any words in our language. In proof of this the record speaks for itself.
As to the second additional error. By the 3d sect, of the act of April, 1779, upon filing the information, the court were to continue the suit to the then next term ; to order a notification to be made out by their cleric; and to cause the sheriff, his deputy, or a constable, &c., to leave an attested copy thereof at the mansion-house on the premises demanded, or, in case there be no mansion-house, thereon to post up the same in some public place, &cc., and also to cause an attested copy of such notification to be left at the last and usual place of abode of the person charged, if any he had within the state, thirty days at least before the sitting of the court to which the suit was continued. And if no person should then appear to take on him the defence of the suit, the court should further continue it to the then next term, where the same should be then tried, &c. By first sect, of the act of Dec. 1780, made in addition to the former act, it is provided -c that when any complaint shall be exhibited in any court in pursuance of the said law, the court shall order the notification to0be published in three newspapers, &c., thirty days at least before the sitting of the same court to which the suit shall be continued ; which notification, so published, shall avail to all intents * and purposes, instead of the notification [ * 367 ] being served by the sheriff, &.C., as provided in the former law.” By the second sect, of the additional act, it is enacted “ that when no person shall appear to take upon him the defence of the said suit as mentioned in the said act, that the court shall cause
As to the first additional error. It was not necessary that there should be any seisin at all; it was sufficient that the libellee had the r'ght of seisin or possession. The second sect, of the first act by express words extends to “ lands, tenements and hereditaments of every kind, of which the persons before described were seised or possessed, or were entitled to possess, hold, enjoy or demand ;” and, therefore, it was not necessary, in the information, to allege any seisin. But in this case it appears by the record that the libellees were seised (of the estate confiscated) to the use of William, Martin, for life, and to the use of Anna Martin, in fee. Several of the estates of Sir William Pepperell, of which he was not actually seised, were confiscated, and the commonwealth have [ * 368 ] been obliged to institute inquests of office against the ter tenants to revest the possession in the Commonwealth.
As to the second, error, originally assigned. It is not necessary that it should appear on the record that notifications were issued no more than in common cases of civil actions, where judgments are rendered on default, that it should appear in the record that the writ was served. By the record before the Court, it appears that notifications were ordered to issue, and that judgment was rendered. Will not the Court, here, presume that the notice was given ? Ought they not to presume it? It is stated in the record that proclamations were made agreeably to law. Could the proclamations have been made agreeably to law unless it had appeared to the court below, that notice had been given as the law, required ? The supposition is absurd, and ought not to be admitted for the purpose of reversing a judgment. Under the peculiar circumstances of this case, the original files of that term being lost, it ought to be presumed that notifications issued and were published. That the files are lost is not, it is true, apparent by the record ; but it is a fact well known to the Court, and ought to go in aid of the pre sumption. (Parsons, on the other side, here mentioned the case ol
* Davis. As to the third error originally assigned. In [ * 369 ] answer to the objection made under this head, nothing further is necessary than to read the second act, which says expressly that “ where no person appears to defend, judgment shall be rendered without any trial by a verdict of a jury, which shall avail to all intents and purposes as though the estates alleged to be forfeited were so found by the verdict of a jury.”
As to the fourth original error. It is contended by the counsel for the plaintiff in error, that the statute does not extend to femescovert, that women are not named, are not mentioned in the statute. The first sect, says, every inhabitant and member. Anna Martin was an inhabitant, and appears by the record to have been so. She is therefore within the statute. The third sect, says, any person: this is certainly sufficiently comprehensive to include all persons who could commit any of the offences mentioned in the act. The question then is, whether a feme-covert is capable of committing the offences, or any one of the offences, specified in the statute. For if a feme-covert could commit any one of the offences mentioned, and that offence be well laid in the information, the judgment ought to be affirmed. That a feme-covert could perform one, at least, of the acts described, that of withdrawing herself from the state into parts and places under the dominion of the king of Great Britain, &c., is proved by the seventh sect., which provides, “ that when the wife or widow of any of the persons aforedescribed shall have remained within the jurisdiction of any of the said United States, &c., she shall be entitled to the improvement and income of one third part of her husband’s real and personal estate, after payment of debts, during her life and continuance within the said United States; and her dower therein shall be set off to her by the judge of probate in like * manner as it might have been if her [ * 370 ] husband had died intestate, within the jurisdiction of this state.” The exception proves the rule. Wives who remained here are mentioned as an exception : the statute,-therefore, embraced all persons who did not remain—who withdrew. The very supposition
(On Friday.) The Attorney-General argued in support of the judgment. Previous to his entering upon the points which he said he should make in the case, he observed that in England writs of error were limited to twenty years; but he could not learn that the statute 10 & 11 W. III. c. 14, had been adopted and practised upon here; and therefore the case before the Court was of very great importance to the commonwealth, as, possibly, a decision in this case might be the means of calling in question every judgment which had been rendered under the acts of confiscation. And even if the English statute had been adopted here, yet the courts [ * 371 ] had * deducted eight years for the time of the continuance of the revolutionary war; and he mentioned a decision in this Court in Hampshire, in an action on a bond, brought by the administrator of Murray’s estate, and a similar decision in the Circuit Court in Boston, by judges Cushing and Davis. He then said that he should make two points:
1. That the cause is coram. non judice; this Court has no jurisdiction.
2. If it have, then sufficient appears by the record to support the judgment of the Court of Common Pleas.
As to the first. There is a distinction between the Superior Court which was before, and that which has been since, the adoption of the constitution of this state. The general practice, before the constitution, was to set aside the judgments of the inferior Court of Common Pleas in the General Court. I do not mean to say that a writ of error did not lie from the Superior Court of Judicature ; but the practice was to obtain a resolve of the General Court setting, aside the judgment, making the same null and void, and directing a new trial.
In 2 Bac. Abr. tit. Error, 3, under the head, “ In what court judgment must be given in which a writ of error will lie,” and in the authorities there cited, may be found the whole learning of the law on the subject.
How and by what authority did the inferior court of common pleas proceed in this case? The authority was derived wholly from the act of April, 1779, which, to this purpose, was in nature of an act of parliament creating a new jurisdiction. The authority given was precisely as if the act had given to the judges, by name, then composing those courts, the power of determining the questions which might be brought before them under that statute. It was similar to the late statute giving to the courts of common pleas jurisdiction in criminal cases; to which a writ of error will not lie from this Court in those cases, because they are not courts of record in criminal cases. So no writ of error lies from this Court to the courts of probate, because they are not courts of common law—not courts of record. The act has nothing in it like a common law proceeding, except trial by jury ; and that was taken away by the act of Dec. 1780, previous to the institution of the process now brought before this Court by the writ of error. It was a mere commission, like a commission from the Court of Chancery to ascertain a fact. The proceedings, then, of the Court below, were not according to the course of the common law ; it did not act as, and to this purpose was not in fact, a court of record. As to the jurisdiction of a court of error, see 3 B. Com. 106, 109. No writ of error lies to a court of admiralty; admiralty courts do not, properly speaking, exercise judiciary * power; they [ * 373 J are no more than courts of inquiry ; undoubtedly they judge, but exercising judgment does not imply judicary power. The
The statute does not charge any crime, but only considers the property as derelict, and points out a mode to get the avails of it into the treasury. Both the acts, the absentee and the conspirator act, as they are usually called, were made for getting hold of the property of an enemy, or property which had no owner. The statutes were a sort of declaration of war, and the measures then adopted had nothing to do with the principles of common law, but were grounded on a state of war; and the treaty of peace with Great Britain implies that all which had been confiscated, whether by or without judgment of court, should remain so; it made no distinction as to the mode in which the estates had been confiscated ; which term means no more than taking and putting into the treasury. The statute (the absentee act) was made nearly three years after the declaration of independence. This state, then being a sovereign state, declared those persons to be aliens; it drew the line of separation; it did not declare them guilty of any crime, but declared that their estates, having no owner, should escheat. Each individual had the right of deciding what part he would take in the contest, and different men of great talents and equal integrity took different sides. The act is drawn in an awkward manner ; it ought to have said, and that is the meaning, that the estates were escheats, and the words offence and offending were incorrectly [ * 374 ] * used. It must have meant a moral and not a civil offence. It was not contrapacem; it was not vi et armis; not against any statute; not against the common law; it was no offence when these persons withdrew ;• we were all the subjects of the king; independence was not then declared, till which time our commissions, &c., were in the name of the king. But the statute considered the title of the crown as being gone, and that the state succeeded to it, and these people having adhered to the king, who was at open war with us, that we had a right to declare what should be done with them and their estates. 1 Burn, L. Dict. Escheat, which cites 1 Bl. Com. 299, 2 Bl. Com. 244.
In the case which has been cited, Gould vs. The Commonwealth, the question as to the jurisdiction of this Court was not made; and it cannot therefore be considered as an authority to prove that the writ of error lies.
If all the decisions which were had during war, in the admiralty courts, prize courts, &c., are, in time of peace, liable to be reversed
But the plaintiff in error is not without remedy; his remedy is like the petition of right in England in the Exchequer. He may here petition the General Court, who, it is to be presumed, will do right; and if he ought to have his property, the legislature will undoubtedly restore it to him.
The case before the Court is a decree rather than a judgment; but, be it what it may, it was sufficient to transfer the estate to the government. For, secondly, if this Court have jurisdiction of the cause, sufficient appears by the record to support the judgment of the inferior court.
None of the errors assigned are sufficient to reverse the judgment.
* As to the second, the objection is, that it does not [ * 375 ] appear by the record that notifications were made. But it does appear by the record that a notification was ordered to issue, and that proclamations were made according to law. The Court, therefore, must presume that notice was given. This is one of those legal presumptions which are always made in support of judgments.
The second additional error assigned is, that there were not two continuances. The first act undoubtedly required it; but the second, the additional act, has taken away the necessity of continuing the cause more than once. By the first act, the cause was to be continued to the term next after the libel was filed; at that term, the second term, any person might appear and defend the suit. By the additional act, if no person appear to defend, as mentioned in the first act, then judgment shall be rendered. When ? The answer is, at the second term, that being the term to which the cause was to be continued for the purpose of publishing the notifications.
The first error originally assigned is, that there is no offence charged against Anna Martin. To this it is answered that if there be any offence described in the statute, there is an offence charged in the information; for it expressly states every act, matter and thing to have been done, performed, and transacted by her, mentioned in the statute as offences. But I do not contend that the information charges any offence; the statute does not make an of-fence ; it was a mere act of sovereign "power, seizing derelict property, and putting the avails of it into the treasury.
Under the fourth error originally assigned, it been contended by the counsel for the plaintiff that the statute did not extend to femes-covert. And it is said that the words of the act do not in-
It is said, in the error first assigned anew, that no such seisin in Anna Martin is alleged as comes within the statute. But what does the statute, what does the information say ? The statute subjects to confiscation all the property, whether the person were seisea and possessed, or entitled to be seised and possessed; the information states both, that the husband was seised to his own use for life, and to the use of his wife in fee. This is by necessary implication an allegation of her seisin of the remainder in fee, or at least it shows a right in her to the property, which is sufficient to bring the case within the statute; for all was to escheat, whether there was an actual seisin or not. But if the proceedings in this summary process are to be scanned by the strict rules of the common law, we shall feel the consequences to our sorrow. It never was [ * 377 ] intended. And laws made relative to * aliens, under such circumstances as in the case before the Court, and the proceedings had under those laws, ought to be construed and governed by different rules—such rules as will effect the manifest object of the legislature.
Parsons, in reply, said he should make two questions. 1. Does the writ of error lie ? 2. If it does, is the judgment erroneous ? And he should contend that the writ of error lies, and then should show the judgment is erroneous; because, 1. There was no legal notice of the original process. 2. There were not two continuances 3. No seisin is alleged in Anna Martin, which comes' within the statute ; and 4. The statute does not extend to femes-covert leaving fhe country with their husbands.
As to the first point. A writ of error lies from this Court to all courts of record of inferior jurisdiction in all cases in which such inferior court renders judgment according to the course of the common law. It is not necessary that the subject matter should be actionable at common law, nor that the mode of process should be in the common law forms; the mode of process may be specially directed by statute. For instance—¡judgments rendered in the courts of common pleas under the statute made for the support and regulation of mills; so under the act for the partition of real estate ; and also those rendered upon awards made * on a rule of reference entered into before a justice [ * 378 J of the peace; in all of which the mode of process is provided by statute, and differing from the common law process ; yet, as the judgments are rendered according to the course of the common law, they are liable to be reversed in this Court, and a writ of error lies for that purpose. In England, the Court of Chancery has an equity jurisdiction and a common law jurisdiction: the latter is in the petty-bag office: a writ of error lies to that court from the King’s Bench, because its judgments are according to the course of the common law. What is the case now before the Court ? It is an inquest of office, similar to many of the proceedings in the petty-bag office; and this Court have heretofore, decided that a writ of error lies upon these judgments.
If the Court have jurisdiction, then is the judgment erroneous.
It is, because, First, there was no legal notice. The question is, whether it shall be presumed that the court below have done right, when it was their duty to have made an entry somewhere, (either on the docket, the information, or some other of the files,) that the notification issued and was served, and when nothing of this sort appears. By the statute the Court was to order the notification to be published, &c. It was the duty of the clerk to make it out, and it was the duty of the prosecutor to see that it was published as the law directed; if all this were done, then it became the duty of the Court to cause an entry to be made that tne notice had been giver
Secondly. There were not two continuances. The process is predicated upon the defendant’s being out of the state. And the legislature, conformably to the common cases of granting two continuances in such cases, have said expressly, in the first act, that there shall be two continuances. Does the second act vary the law in that respect ? Only thirty days’ notice is to be given, previous to the second term, and that by printing in a newspaper. It cannot be pretended that this would have been a reasonable substitute for the former mode of notice, unless there were two continuances still allowed ; it would only be adding insult to injury. The second act says that the Court shall order notifications to be published, &c.; and “ when no person shall appear to take upon him the defence of the suit, as mentioned in said act, [the first act,] that the Court shall cause proclamation as in said act is provided, and that [ * 380 ] * then judgment shall be rendered,” &c. When ?' Undoubtedly after two continuances; because, by the first act, proclamations could not be made till there had been two; and the second act is express that the Court shall cause proclamations as in the first act is provided. The preamble of the second act is evidently grounded on the idea for which we contend : the two acts are in pari materia, and must be construed together, A second statute never repeals a former, except by express words or necessary implication. And the whole purview of the two statutes shows the
Thirdly. There is no seisin alleged, in Anna Martin, which is within the statute. By the act it appears that “ a writ of habere facias possessionem was to issue in behalf of the government and people to cause them to be seised and possessed of the estate forfeited.” This shows what was the estate made liable to forfeiture. Could an inquest of office be had of remainders or reversions ? At common law, there is no escheat of incorporeal hereditaments. The statute, therefore, must have intended that the common law rules as to seisin should apply, and that the person offending should have been seised of an estate for the possession of which the writ mentioned might have issued. No such writ could issue for an incorporeal hereditament; and in this case, the seisin of Anna Martin was, at most, of an incorporeal hereditament. When a husband and wife are seised in right of the wife, he cannot, by any act, forfeit her right; he cannot by his own act forfeit any estate except such as he is seised of in his own right. Here the seisin was to the use of the husband * for his life, and of the [ * 381 J remainder to the wife in fee. The judgment, therefore, ought to have been that the lands should enure, &c., for the life of William Martin, the husband.
Fourthly. The statute does not extend to femes-covert leaving the country with their husbands. The intention of the legislature is to be collected from the whole act taken together. In another act passed on the same day, that for confiscating the estates of certain notorious conspirators against the government and liberties of the state, in which the legislature has pointed out by name the persons who are the objects of the statute, and declared that they had justly incurred the forfeiture of all their property, &c., no mention is made of their wives. Had the legislature intended to include their wives, they certainly would have been mentioned. It is impossible, by any rules of construction, to extend the statute to the wives ; for there are no general words, but each individual, whose property is by the act made liable to confiscation, is expressly named ; “and the government and people of the state are declared to be in the real and actual possession of all their estate without further inquiry, adjudication, or determination thereafter to be had.” Can it be supposed that the general words used in the absentee act, in describing the persons offending, were intended to reach femes-covert—t.o extend to the wives of persons who, to say the least of them, had certainly been guilty of no greater offences than those notoiiout
The real question is, whether the statute was intended to include persons who have, by law, no wills of their own. The statute extends to persons who have freely renounced their relation to the state.0 Infants, insane, femes-covert, all of whom the law considers as having no will, cannot act freely. Can they freely renounce ? The statute meant such, and such only, as could. Is the state entitled to the personal services of a feme-covert to defend it in war ? Can she render any ? What aid and comfort can she give to an invading enemy ? Has she the control of property ? Is she ever required to take the oath of allegiance ? As to the provision in the statute for dower, that has no relation to her property ; it is merely the donation of the state, giving to her a part of that which was absolutely its own. There was the same provision in the conspirator act. It has been said that the husband abjured the realm, and that this dissolved the marriage contract: this is a strange consequence, and one till now unheard of. [ * 383 ] * It is said that a reversal of the judgment will be the means of calling in question a great number of the decisions in the inferior courts, and that the interests of the commonwealth are so involved in the question before the Court that the case ought not to be determined by the strict rules of the common law, but by some other; or rather, as I understand it, without regard to rules. To this it may be answered, that it is of no consequence whether other cases exist resembling this or not; and that there can
On Wednesday, the 14th day of the term, the Court delivered their opinions.
I do not think that, for either of the three first errors assigned, the judgment ought to be reversed. As to the fourth, I give no opinion. The second additional error, that which assigns the want of two continuances, is, in my opinion, well assigned. By the act of April 30th, 1779, it is expressly provided that there shall be two continuances before judgment is rendered. The additional act has prescribed a mode of notice different from that directed in the first act, and has taken away the trial by jury in those cases where no person appears to defend the suit, but has made no other alteration whatever. In every other particular, the first statute remained in full force. It appearing, then, by the record, that judgment was rendered after one continuance only, I am clearly of opinion that, for that cause, it is erroneous, and ought to be reversed.
The plaintiff in error alleges that he is the son and heir of Anna, the wife of William Martin, mentioned in the libei in the case; which fact is, by the pleadings, admitted. This libel is founded on an act of the legislature, passed *on the 30th day of April, 1779. The libel was [*384] made, by the then Attorney-General,
The present United States, which had been, previously, the acknowledged colonies of Great Britain, on the 4th of July, 1776, by their representatives, declared themselves independent of the mother country, and justified themselves by certain acts of aggression and oppression which were deemed proper to be proclaimed and explained to the world. The constituents of those representatives adopted their sentiments, and undertook to assert and suppor
The act of the30th April, 1779, after a preamble of some length, in which the legislature make an exposition of their opinions as far as to them seemed necessary to justify their proceedings towards those whose conduct they afterwards define, goes on to describe the several acts for which they say, in the conclusion of the first sect., that the persons who perform those acts, respectively, “ shall be held, taken, deemed and adjudged to have freely renounced all civil and political relations to each and every of the United States, and be considered as an alien.”
The court below, to whom jurisdiction was given, have adjudged the ancestor, the mother of the plaintiff" in error, to have performed all the acts, except one, which are specified by the statute, for whim she was toibe “ deemed and considered as an alien,” and for which, by the second sect., her estate was to “ enure and accrue to the sole use and benefit ” of the state. Here we are met with * an objection, made by the Attorney-General, that in [ * 387 ' this case a writ of error does not lie. This objection is in nature of an exception to the jurisdiction of the Court; and although it comes late, yet, if well founded, it must prevail; for whenever the Court is satisfied that it has not legal authority to pro ceed, there it will certainly stop. From the manner in which this objection has been presented to us, and the grounds on which it has been argued, it will be necessary to look further back into the jurisprudence of the country than would otherwise be required. The Attorney-General, at least, doubts whether, before the revolution, writs of error lay, without particular interposition by the legislature, from the then “ Superior Court of Judicature, Court of Assize and General Jail Delivery,” (to which this Court is successor,) to the then “ inferior courts of common pleas,” which now exist with only an alteration of the name. These courts, notwithstanding the name, then were and now are superior courts of common law : proceeding according to the rules of the common law; they were and are of extensive and almost unlimited original jurisdiction
I proceed now to consider the merits of this case. Several errors have been assigned by the plaintiff; I shall consider only one, because that one decides the substantial justice of the case.
In this case, from considerations which will be very obvious, I am induced to declare that I have always understood that bringing writs of error was limited to twenty years; and of course that none can hereafter be brought in these cases of confiscation.
(after stating the case.) The first question is, whether the writ of error lies. It is objected that it does not, because the jurisdiction of the Court of Common Pleas, in this case, was by virtue of a particular statute, and that the court were not to proceed according to the course of the common law. It is undoubtedly true that the rule is, that the court to which a writ of error lies must be a court of record, proceeding according to the course of common lawr. But that rule does not extend to cases where the authority of the court is by statute ; if it did, a writ of error would not lie from this Court to the courts of common pleas in any case ; for here all the powers and authorities of these courts are by the several statutes defining or describing those powers and authorities.
The meaning of the rule is, that where the court is a court of record and proceeds according to the course of the common law,
Upon the question whether the estates of femes-covert were, by this statute, liable to confiscation, I am of opinion that they were not. *The act was intended to take the estates of those persons who had voluntarily withdrawn themselves from the country, and joined the fleets and armies of Great Britain, with whom we were then at war. Could a feme-covert, in any reasonable sense of the words of the act, do this ? I think not. The law considers a feme-covert as having no will; she is under the direction and control of her husband; is bound to obey his commands ; and in many cases which might be mentioned, indeed, in all cases, except perhaps treason and murder, cannot jointly with her husband act at all ; or at least so as to make herself liable to punishment. She could not even have conveyed this very estate during the cover ture; her husband could not have conveyed it so as to have bound her ; and therefore I think that she could not forfeit it by any thing which she did or could do against this statute ; and that no act of her husband could incur the forfeiture *of [ * 396 J her estate. I am clearly of opinion that the statute does not extend to femes-covert. As to the other points in the cause, 1 give no opinion ; it not being necessary for the decision of the case now before us; but, for the reasons already given, I think that the judgment of the inferior court ought to be reversed.
The case has been so fully gone into, that I can say very little without repeating what has been already said. One objection which is made to the judgment is, that “ it does not appear by the record that notifications were published as required by the statute.” As to this point, the question is whether, j-vhen a statute requires an act to be done in the course of proceedings in a court of justice, it ought to appear by the record that the act was done, or whether this Court are to presume that all the law required was in fact done where the record says nothing respecting it. Ip
Another objection is that “ there is no offence charged.” The libel follows the words of the statute; and one offence, certainly, is sufficiently charged—that of withdrawing to the enemy.
Another objection is, that “ there ought to have been two continuances in the inferior court before judgment was rendered This, if there were no other point, would be sufficient to reverse the judgment. Upon a fair construction of the statutes, there ought to have been two continuances. By the additional act, the mode of notifying is altered, and the trial by jury, in certain instances, taken away; but in every other particular, the first act was left in full force.
[ * 397 ] * Another objection is, that “ the statute does not extend to a feme-covert leaving the country with her husband.”' In a former stage of the cause, I gave an opinion on this point,
But it is objected by the Attorney-General, that a writ of error
On the whole, I am clearly of opinion that the judgment ought to be reversed, because there was not a second continuance ; and because femes-covert, having no will, could not incur the forfeiture; and that the statute never was intended to include them; and oblige them either to lose their property or to be guilty of a breach of the *duty, which, by the laws of their [ * 399 ] country and the law of God, they owed to their husbands.
Judgment reversed.
Sewall, J., absent; but the Chief Justice said that he perfectly concurred with the rest of the Court, on the ground that the statute did not extend to femes-covert.
Hon. Robert Treat Paint
The Attorney-General here interrupted the judge, and said that he was misunderstood as to what he said respecting a writ of error lying to the Court of Common Pleas ; that he only said and so meant to be understood, that writs of error were not usually brought; that the usual mode of annulling judgments was by the General Court
2 Bac. Abr. tit. Error; and the authorities there cited.
Post, vol. x. p. 152, Commonwealth vs. Neal & Ux.
It is presumed this was in Nov. term, 1803, when the motion of the j General to quash the writ of error was overruled. Vide ante, p. 352.