1800. "Article 39. All matters of breach of the peace, felony, mur"der, and treason against the state, to be tried in the county "where the crime was committed, &c. "Article 60. The principles of the habeas corpus act shall be 6C part of this constitution. "Article 61. The freedom of the press, and the trial by jury, "to remain inviolate forever. "And that the said recited acts, so far as they can operate "to bar the said Basil from maintaining his action, are repug"nant to the true intent and me ing of divers rules and regu"lations contained in the said constitution, and are as to the "action of the said Basil null and void: Without that, &c." The defendant demurred to the replication; and the plaintiff joined in demurrer. On the 2d of May 1799, the Circuit Court, composed of ELLSWORTH, Chief Justice, and CLAY, District Judge, decided, that the replication was insufficient; that the plea in bar was sufficient; and that judgment on the demurrer be entered for the defendant. Upon this judgment the present writ of error was brought, and the following errors assigned: 1. The general errors. 2. That the plea does not set forth the constitutional power of the legislature of Georgia, to deprive the plaintiff of his rights as a citizen; and, on their own authority, to pass sentence of of confiscation and banishment. 3. That the judgment decides that the legislature had cognizance of the treason alleged against the plaintiff and could legally try, convict, and banish him; whereas they had no such power on constitutional principles. 4. That by the judgment it appears, the legislature could deprive individuals of their lives and property, without trial by jury, or inquest of office, contrary to the constitution of Georgia. 5. That the judgment gives effect to an act of Georgia, which is an union and usurpation of judicial, as well as legislative powers; which powers the constitution declares should be kept separate. The case was argued by E. Tilghman, for the plaintiff, and by Ingersoll and Dallas, for the defendant, on the 7th of February 1800, upon the general question, whether the confiscation acts of Georgia, were repugnant to the constitution of the state, and, therefore, void? For the Plaintiff: 1st. If the law is contrary to the constitution, the law is void; and the judiciary authority, either of the state, or of the United States, may pronounce it to be so. 2 Dall. 308. 410. 3 Dall. 383. 2d. The law is contrary to the constitution, inasmuch as it is an exercise of the judicial power, by the legisla tive authority, in opposition to an express prohibition of such an 1800. union of jurisdiction. That acts of attainder, banishment, and confiscation, are an exercise of judicial power, the English, as well as the American, authorities, clearly establish. 2 Woodes. Lect. 621, 2. 11 State Trials, 25. 6 State Trials, 405. 4 Co. Inst. 2 Woodes. 147. 3 Dall. 389. 3. Whatever right Georgia had to confiscate the property of her enemy; yet, as the pleadings show the plaintiff to have been a citizen, his property could only be forfeited by the regular judgment of a Court, upon a trial by his peers, or the law of the land. As the case is now presented, it is a legislative act, by which the property of an individual citizen is arbitrarily taken from him, and given to the state of Georgia. 3 Dall. 388, 389. For the defendant: It is conceded, that if the law plainly and obviously violates the constitution of Georgia, it is void, and never was a valid rule of action. The only question, therefore, to be discussed, is, whether such a fatal collision actually exists? Or, in other words, whether the legislature of Georgia had a power, consistently with the constitution, to pass a law, confiscating the property of her own citizens, who had fled beyond the reach of the ordinary legal process? 1st. Georgia, at the time of passing the law, was a sovereign, independent, state, with all the rights, prerogatives, and powers resulting from that character; except so far as she had expressly devolved on congress, a portion of her sovereignty; an exception that does not affect the present case. 2d. To a corporation of the most limited nature, the power of passing by-laws is a necessary incident. And to every sovereign legislature, an indefinite power of making laws, is equally an incident, restricted only by impossibilities; for, even if they should be against natural justice, Blackstone tells us, they would be valid. 3d. The constitution of Georgia does not declare, that "no bill of attainder shall be passed." There is, therefore, no express restriction of the sovereign legislative authority upon the subject; and to decide in favour of the restriction, would be to make, ex post facto, not to enforce, the constitution of Georgia. 4th. Such acts of attainder and confiscation were not novelties in America, any more than in England. 2 Woodes. Lect. 621. 624. 497, 498. 622. See confiscation acts of the several states. They are exercises of political authority, rather than of judicial power: they are laws, not judgments. And as the power of attainder, banishment, and confiscation, is essential to the existence and operations of government, yet, cannot be exercised by the ordinary tribunals of justice; it naturally belongs to the sovereign, that is, to the legislature of the nation. 5th. But, independent of the necessity of the existence of such a power, and of the implication that it does exist under every constition, unless it is expressly excluded, a just analysis of the various clauses of the conVOL: IV. stitution D 1800. stitution itself, (which contemplates a trial by jury only in the case of an offence committed within a county of the state) the cotemporaneous construction of the legislature of Georgia, the corroborative example of other states, whose constitutions contain the same provisions, and even the authoritative recommendations of congress, with the recognitions of the treaty of peace; demonstrate the legitimacy and validity of the acts of attainder and confiscation, which naturally grew out of the revolutionary war. 6th. Attainder and confiscation acts are most common in Eng• land; yet, generally speaking, the judicial power and the legislative power, are there kept separate and distinct. Blackstone, Woodeson, Montesquieu, De Lolme. They are the exercise of a constitutional power of legislation: 2 Wood. 621. 647. And to exercise a power, not within the scope of the judicial authority, cannot be confounding the distinct branches of the government. On the 13th of February 1800, the Judges (except the Chief Justice, who had decided the cause in the Circuit Court) delivered their opinions, seriatim, in substance as follows: WASHINGTON, Justice. The constitution of Georgia does not expressly interdict the passing of an act of attainder and confiscation, by the authority of the legislature. Is such an act, then, so repugnant to any constitutional regulation, as to be excepted from the legislative jurisdiction, by a necessary implication? Where an offence is not committed within some county of the state, the constitution makes no provision for a trial, neither as to the place, nor as to the manner. Is such an offence (perhaps the most dangerous treason) to be considered as beyond the reach of the government, even to forfeit the property of the offender, within its territorial boundary? If the plaintiff in error had shown, that the offence, with which he was charged, had been committed in any county of Georgia, he might have raised the question of conflict and collision, between the constitution and the law: but as that fact does not appear, there is no ground on which I could be prepared to say, that the law is void. The presumption, indeed, must always be in favour of the validity of laws, if the contrary is not clearly demonstrated. CHASE, Justice. I agree, for the reason which has been assigned, to affirm the judgment. Before the plaintiff in error could claim the benefit of a trial by jury, under the constitution, it was, at least, incumbent upon him to show, that the offence charged was committed in some county of Georgia, in which case alone the constitution provides for the trial. But even if he had established that fact, I should not have thought the law a violation of the constitution. The general principles contained in the constitution are not to be regarded as rules to fetter and controul; but as matter merely declaratory and directory: for, even in the con stitution stitution itself, we may trace repeated departures from the 1800. theoretical doctrine, that the legislative, executive, and judicial powers, should be kept separate and distinct. There is, likewise, a material difference between laws passed by the individual states, during the revolution, and laws passed subsequent to the organization of the federal constitution. Few of the revolutionary acts would stand the rigorous test now applied: and although it is alleged that all acts of the legislature, in direct opposition to the prohibitions of the constitution, would be void; yet, it still remains a question, where the power resides to declare it void? It is, indeed, a general opinion, it is expressly admitted by all this bar, and some of the Judges have, individually, in the Circuits, decided, that the Supreme Court can declare an act of congress to be unconstitutional, and, therefore, invalid; but there is no adjudication of the Supreme Court itself upon the point. (1) I concur, however, in the general sentiment, with reference to the period, when the existing constitution came into operation; but whether the power, under the existing constitution, can be employed to invalidate laws previously enacted, is a very different question, turning upon very different principles; and with respect to which I abstain from giving an opinion; since, on other ground, I am satisfied with the correctness of the judg ment of the Circuit Court. PATERSON, Justice. I consider it as a sound political proposition, that wherever the legislative power of a government is undefined, it includes the judicial and executive attributes. The legislative power of Georgia, though it is in some respects restricted and qualified, is not defined by the constitution of the state. Had, then, the legislature power to punish its citizens, who had joined the enemy, and could not be punished by the ordinary course of law? It is denied, because it would be an exercise of judicial authority. But the power of confiscation and banishment does not belong to the judicial authority, whose process could not reach the offenders: and yet, it is a power, that grows out of the very nature of the social compact, which must reside somewhere, and which is so inherent in the legislature, that it cannot be divested, or transferred, without an express provision of the constitution. The constitutions of several of the other states of the union, contain the same general principles and restrictions; but it never was imagined, that they applied to a case like the present; and to authorise this Court to pronounce any law void, it must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative implication. (1) The point has since been decided affirmativel by the Supreme Court in Marbury v. Madison, 1 Cranch's Rep. 137. See Dall. Rep. CUSHING, 1800. CUSHING, Justice. Although I am of opinion, that this Court has the same power, that a Court of the state of Georgia would possess, to declare the law void, I do not think that the occasion would warrant an exercise of the power. The right to confiscate and banish, in the case of an offending citizen, must belong to every government. It is not within the judicial power, as created and regulated by the constitution of Georgia: and it naturally, as well as tacitly, belongs to the legislature. By the COURT: Let the judgment be affirmed with costs. E Williamson, Plaintiff in Error, versus Kincaid, RROR from the Circuit Court of Georgia. It appeared from the record, that “ Marian Ki caid of Great Britain, widow, "demanded against John G. Wiluamson the one third of 300 "acres of land, &c. in Chatham county, as dower. That the tenant pleaded, 1st. The act of Georgia (passed the 1st of March "1778) attainting G. Kincaid (the demandant's late husband) forfeiting his estate, and vesting it in Georgia, without office. "2d. The act of the 4th of May 1782, banishing G. Kincaid, and "confiscating his estate. 3d. The appropriation and sale of the "lands in question by virtue of the said attainder and confisca "tion, before the 3d of September 1783 (the date of the de `nitive 66 treaty of peace) and before G. Kincaid's death. 4th. The alienage of the demandant (who was resident abroad on the 4th of July 1776 and ever since) and therefore incapable of holding "lands in Georgia. That the demandant replied, that she and "her husband were inhabitants of Georgia, on the 19th of April "1775, then under the dominion of Great Britain; that her "husband continued a subject of Great Britain and never owed "allegiance to Georgia, nor was ever convicted by any lawful "authority of any crimes against the state. That the tenant "demurred to the replication, the demandant joined in demur. rer, and judgment was pronounced by the Circuit Court (composed of WASHINGTON, Justice, and CLAY, District Judge) "for the demandant." On this judgment the writ of error was brought, and the following errors assigned. 1. The general errors. 2. The attainder of G. Kincaid and the forfeiture and sale of his estate; so no right to dower accrued; and no land out-of which it could be enjoyed. 3. The alienage of the widow on the 4th of July 1776 and ever since, by which she was incapable to take and hold real estate in Georgia. The principal question (whether an alien, British subject, was entitled, under the treaty of peace, to claim and hold lands in dower) |