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Lessee

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TON

V.

By some it may be said that the case of F. Galloway is different from that of a subject under an established government who commits treason. I answer that in every nation the will of the majority must govern, to which every one of the minority PEMBERmust submit as soon as the society becomes a nation. From the time independence was declared, it became the duty of every HICKS. citizen of the United States not only to submit to it, but to assist in its establishment. In trials for high treason immediately after the revolution in England, it was never alleged that the case of any of the prisoners was different from the case of a subject under an ancient government, who has committed treason. Moreover, could it have any weight, which I am clear it has not, F. Galloway assisted in those measures, which, according to the common course of events led to that independence, which he afterwards laboured to destroy.

The question therefore is not whether the law of forfeiture for high treason be humane or rigorous; but the question is what is the law? On this question it is our duty and we are competent to decide. The law being penal, it is our duty to construe it not to extend beyond the letter of it.

Any lawyer who has never had occasion to examine the point now before us, indeed any person, though not a lawyer, who is acquainted with the history of England, and reflects how many trials there have been for high treason, would, on the case, being stated, be ready to take it for granted that it had been long ago and often decided; and I confess that I was struck with surprise when on examination after the case was first stated, I could not find one case in the books in which it has even come before the court.

It seems to me that the principal difficulty in the case before us arises from the inaccuracy of the writers on the subject in not distinguishing whether the baron committing treason had or had not had issue at the time the treason was committed; and in not adverting to the alteration made since 13 H. 7. 17. by the statutes 26 and 33 H. 8.

"A man takes wife an inheritrix-has issue-commits felo"ny of which he is attainted; the king pardons him. Keble said " he shall not be tenant by the curtesy by reason of the issue "before the attainder, but if he have issue afterwards, he shall." 13 H. 7. 17. This position is the foundation of the plaintiff's claim; and although it does not appear what case or if any case

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Lessee

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TON

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was then before the court, and therefore it may be inferred that this is a mere obiter dictum of Keble, yet did the principle of it stand unopposed, although it has received no judicial conPEMBER- firmation, that principle would have weight with me in favour of the plaintiff; it being well known to every lawyer that very HICKS. many cases which have been since from time to time recognised as law, derive their original authority from similar dicta in the year books. But let us consider that before issue "If "baron and feme be seised in fee in a seignorie in the right of feme, baron shall not receive homage alone; but he and "feme together: but if baron in that case hath issue by feme "then he shall receive homage alone during the life of feme. "And the reason is because he by having issue is entitled to an "estate for the term of his own life IN HIS OWN RIGHT, and yet "is seised in fee in right of his wife; so as he is not a bare ten66 ant for life. But if feme die then he hath only but an estate for "life, and then he cannot receive homage." Co. Litt. 67. a. So "if feme seised of lands in fee simple or fee tail by homage, "taketh baron and hath issue, then baron in life time of feme "shall do homage because he hath title to have the tenements

by the curtesy of England if he surviveth feme, and also he "holdeth in right of feme." Litt. sec. 90. "After issue he shall "do homage alone and is become tenant to the lord, and the "avowry shall be made on baron only, during the life of feme." Co. Litt. 30. a.; and "as soon as a child is born the father

begins to have a permanent interest in the lands; and this "estate being once vested in him is not liable to be defeated by "the subsequent death or coming of age of the infant." 2. Bl. Com. 127. Again; "If a man seised of lands in fee hath issue

a daughter who takes baron and hath issue, the father dies, "baron enters, he shall be tenant by the curtesy albeit the issue (6 was had before feme was seised. And so it is although the "issue had died in the life time of her father before the descent "of the land." Co. Litt. 29. b. So " if a woman tenant in tail "general takes baron and hath issue, which issue dieth, and "feme dieth without any other issue, yet baron shall be tenant "C by the curtesy, albeit the estate tail be determined." Co. Litt. 30. a. And "if after issue, baron makes a feoffment in fee, and "feme dieth, the feoffee shall hold during the life of baron, "and the heir of feme shall not during his life recover it “in a sur cui in vita." Ib. F. N. B. 194. Why? Not because

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he has less than an estate for life, for such feoffment would be a forfeiture of even an estate for life; but because he has more, Lessee he is also seised of the fee in right of feme.

of

TON

V.

HICKS.

From these various authorities it follows: 1. That by having PEMBERissue the estate is vested in baron for life. 2. That although the issue die before feme is seised, yet the instant she becomes afterwards seised, baron becomes entitled to the estate for the term of his own life in his own right. 3. Nay, so absolutely and indefeasibly does the estate become vested in baron for life by having issue, that the determination of an estate tail by the death of feme, the last tenant in tail, does not affect baron's right. It is impossible even to suppose a stronger instance to demonstrate that after issue no circumstance can make the least alteration in baron's vested right to her estate for life. This gives a full answer to 1 Ventr. 417. that an alien or attainted person cannot take by any act in law, because here he had taken; the estate had by having issue become vested in him during his life. In Godb. 323. Coventry attorney general says that "Tenant 'by the curtesy, during the life of feme cannot convey it, but he may forfeit it by way of discharge;" and he cites 13 H. 7. 17. but the only words on the subject in 13 H. 7. 17. are those which I have literally translated and before stated. In the first point the attorney general is contradicted by Co. Litt. 30. a. and the other was not then law.

The same doctrine is laid down in 2 Bac. 219. where it is said that persons attainted of treason or felony &c. shall not be tenants by the curtesy; that their title shall never arise even for the benefit of the king, but that the estate of the wife shall be discharged of it forever. The authorities which Bacon cites are Bro. Tit. Curtesy pl. 15. p. 250. which is a transcript of 13 H. 7. 17. there quoted. Staundf. 196. is the same, and he quotes the same; and Godb. 323. He also cites Co. Litt. 291. a. 3 Inst. 43. as authorities in analogous cases; and in a note to it he states the words of Keble, for which he cites 7 Co. 25. by which I am confirmed in my want of confidence in the accuracy of the best abridgments, as authorities, as I observe that in neither of those pages is the doctrine laid down, which he states.

So that all the authorities respecting the discharge of the wife's estate rest on the dictum of Keble. In Bacon it is said the title of tenant by the curtesy shall never arise. This expression shows that he is laying down the law where a man com

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Lessee

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HICKS.

mits treason before issue; because by having issue the estate has arisen and is vested in the husband for the term of his own of life; it has therefore become absolute and indefeasible during PEMBER- his life. "The wife's estate shall be discharged of it forever." TON From what time is this discharge to operate? From the time of the treason, or from the death of the wife? The expression is so general, that the attainder is to have no effect upon the estate of the wife. If the dictum of Keble 13 H. 7. 17. were law, this would be the necessary consequence. For " a pardon shall not "devest any interest either in lands or goods vested in the sub'ject; neither shall it, without express words of restitution, even devest any title from the king." 3 Mod. 101. “If the "king present to a benefice on being entitled to it by simo"niacal contract, his presentee shall not be removed although "the simony is pardoned." 2 Mod. 52. 2 Hawk. 396. On the principle therefore of 13 H. 7. 17. the executors of Mrs. Galloway may recover the mesne profits from the time the estate was taken possession of by the commonwealth, if the defendant has been in possession so long; nay, she herself (as he became dead in law) might have recovered it by ejectment. But that this is not the construction, that this dictum cannot be law at this day, is clear from two most respectable authorities. For Lord Hale 1 P. C. 251. and Lord Coke in 3 Inst. 19. lay it down that where "baron is seised in right of feme of lands of in"heritance and is attainted of treason, the king shall hold during "the coverture." It is not stated whether issue was had before the treason or not; but as the husband, though seised in fee in right of his wife, yet by having issue is entitled to an estate for term of his own life in his own right, it must be inferred that Lord Hale and Lord Coke confine their position to the case of treason committed by baron before issue. Let it not be said that there is no difference whether the treason be committed before or after issue as to this purpose: by issue the estate of baron in the lands of inheritance of feme becomes entirely altered; it becomes from that moment vested and permanent for his life. Lord Hale adds, " and so if tenant for life be attainted of treason the king hath "the freehold during the life of the party attainted." I have repeatedly stated that by having issue baron is entitled to an estate for term of his own life in his own right, (he is become tenant to the lord, Co. Litt. 30. a.) and therefore if attainted of treason, the king hath the freehold during his life,

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Lessee

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TON

Again: If feme tenant in tail takes baron, and he becomes entitled to an estate by the curtesy, which he does by having issue capable of inheriting, not only his wife and he, but he alone may make a good tenant to the præcipe to suffer a recovery to bar PEMBERthe intail. Cases Talb. 167. Harg. Co. Litt. 326. a. where, and in a note to Ca. Talb. said to be a more accurate statement of Lord Talbot's argument, it is said in general terms, "That baron " alone may by deed only and without any fine levied by feme convey a sufficient freehold to the grantee to make him a "tenant to the præcipe."

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The last but not the least consideration is, "If a man taketh "feme seised of lands in fee and hath issue, and after feme is "attainted of felony so as that the issue cannot inherit to her, "yet he shall be tenant by the curtesy in respect of the issue "which he had before the felony: but if feme had been attainted "before issue, albeit he hath issue afterwards he shall not be "tenant by the curtesy." Co. Litt. 40. a. Now suppose baron and feme both commit treason &c. at the same time after issue, and are attainted. Baron's vested right to tenancy by the curtesy of her estate is not forfeited by her attainder. According to the conclusion deduced from 13 H. 7. 17. her estate is not forfeited by the attainder of baron, but is discharged for ever: therefore in such case it is not forfeited at all; a position which it seems to me cannot be supported.

I will take another position and consider the subject from a different point of view. I will lay it down that the point stated in 13 H. 7. 17. was then the law of the land, and will inquire whether or not it be even the law of England since 26 H. 8. c. 13. and 33 H. 8. c. 20.; and more particularly whether since the act of Assembly by which Joseph Galloway was attainted, and which must be our guide in forming our judgment upon the present occasion, the words of Keble be the law applying to persons attainted by this act of Assembly or not. "By the com"mon law all lands of inheritance whereof the offender is seised "in his own right and also all rights of entry to lands in the "hands of a wrong doer, are forfeited to the king upon attain"der of high treason." 2 Hawk. 448. 2 Bac. 675. It may therefore be inferred that though the husband by having issue is entitled to an estate in the lands of the wife for term of his own life in his own right, yet being seised in fee in right of his wife such lands are not forfeited to the king by common law, on the

v.

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