Kemp v. Kennedy

14 F. Cas. 281

• Court: U.S. Circuit Court for the District of New Jersey
• Decided: October 15, 1808
• Status: Published

Opinion

WASHINGTON, Circuit Justice

(charging jury). There are two questions which I shall submit to your consideration. First, is the judgment in this case erroneous, for all or any of the reasons assigned by the .plaintiff’s counsel ? Secondly, if erroneous, can advantage be taken of such errors, in this action?

First. The objections all go to the form of the inquisition, except that which refers to the incapacity of the lessor of the plaintiff, being a married woman, at the time the acts of treason are charged to have been committed. The objections to the form of the inquisition are, that Kemp and his wife are not found to be inhabitants of any one of the United States; or that they owned any real or personal property in the state of New Jersey; or that they voluntarily went to, or remained with, the enemy; or that they aided the enemy by counsel, or in any other manner.

The rules laid down by the plaintiff’s counsel are, upon the general principles of law, certainly correct. Courts of limited jurisdiction must not only act within the scope of their authority, but it must appear upon the face of their proceedings that they did so; and if this does not appear, all that they do is coram non judiee. and void. But it is competent to the legislature to alter or qualify this principle, as it may think proper; and where the observance of the general principle is thus dispensed with, in a particular case, the law creating the exception is alone to be regarded. It is true, that, in this case, the person contemplated by the third section is an inhabitant of another state, owning property in this; and this would have been a necessary description of Kemp and his wife, if the fourth section, which gives the form of the inquisition, had not dispensed with this necessity. In that part of the presented form which mentions the party accused, he is stated to be of -, or late of -; and in no part of it, is he stated to Own property in the state. In stating the offence, a blank Is left in the form; and the jury are required to set forth the time and nature of the offence. It is not true, that the description of the person, is of the nature of the offence; and therefore the omission to set forth, that these persons were inhabitants of some other state, and owned property here; could not. upon a writ of error, have been alleged as ground of reversal.

The other objections are more serious — the going and remaining with the enemy, are essentially parts of the offence, and it should have been stated that this was done voluntarily. for, otherwise, no offence was committed within the law. The going to the enemy, in April 1770. in company with her husband, if this appeared, might not be an offence in the plaintiff; because, as. at that time, it violated no law of the state, she acted lawfully under his control, which was not then subordinate to any superior duty; and therefore it could be fairly said, that, in 1770, that she still remains with the enemy; which is a distinct offence under the previous law of December 1778; but still it was no offence unless she continued voluntarily; and as this is not found, this objection is certainly well founded. The fourth objection is too clear to admit of doubt. The voluntarily remaining with the enemy was no offence under this law, unless the parties aided the enemy by counsel, or otherwise; which not being stated, it does not appear that they were legally convicted. For mere errors, there is no doubt but that this judgment might have been reversed, but then:

Secondly. Can they be taken advantage of in this suit? Can the plaintiff step over the judgment, as if it had never passed, and recover the land which was sold under judgment? It is contended by the plaintiff, that the inquisition is the act of a tribunal, vested only with a limited authority, to inquire into certain specified offences, and that their acts in relation to offences, not of this description, are utterly void. It is more correct to inquire, whether the inferior courts of common pleas possessed this limited jurisdiction? because, if there be error, it is not in the inquisition but in the judgment. We cannot get at the inquisition, but through the judgment. It is this which is ‘‘erroneous,” or “void,” if either term be properly applicable to the case. The question then is, is the judgment of the court of common pleas of Hunterdon, void upon the ground, that it was a court of special and limited jurisdiction? What is the constitution of that court? It seems to be agreed, on all hands, that it is a court of record, possessing, in civil cases, a general jurisdiction to any amount; and over all cases of tort or contract, wherever the cause of action arose, the defendant residing or being served with process within the county. An exception from this general jurisdiction exists, in respect to suits for real property.

What is its jurisdiction in cases of treason? The first law, that of the 4th of October, 177G, is purely a treason law, which vests in no particular tribunal a jurisdiction to try' persons charged with this offence. The act of the 20th of September, 1777, fixes the punishment of treason. That of the ISth of April, 1778, points out the mode of trial, and, instead of proceeding by way of indictment, as at common law. the inquisition taken before a justice of the peace, is to be returned to the inferior court of common pleas for the county; where the trial, if any, is to take place, and final judgment is to be rendered. This law then, prescribes the mode of trial of an offence before defined, and points out the court where the trial is to take place. Every case of treason, arising under the former laws, is to be tried in this court, and in the prescribed form. In all such cases, the jurisdiction is general.

We come then to the act of the 11th of December, 177S. which makes some slight alteration in the form of proceedings, and extends the doctrine oí treason to persons and to acts not before comprehended in former laws. An act, not criminal by virtue of any pre-existing law, is now declared ■ to amount to treason. The jurisdiction of the court, however, remains as formerly, and cannot be said to be limited and restricted by extending the crime of treason to acts not before deemed criminal. There is, surely, a striking difference between a special delegation of power to try particular cases, and multiplying the offences which the same tribunal was before authorized to try. In the exercise of their power to decide what acts constitute treason under this law, the court has certainly erred, by declaring that to be treason, which, in point of law, is not treason. This is an error in judgment sufficient to have authorized a superior tribunal to reverse it. But it does not amount to the usurpation of a power to judge and to decide, not granted by the legislature. The power to judge in the ease is general — the correctness of the judgment is another matter. The circuit courts of the United States, are vested with the power of trying criminal offences against the laws of the United States. We know what it is that constitutes treason, murder, perjury, and the like. Suppose, that the crime of treason were not defined by the constitution, and that congress should declare certain acts to amount to treason, murder, or perjury, which before were not offences against the law. Should the court, in any particular case, determine that to amount to treason. <&c. which, under the new law, is not strictly within the definition, would the judgment be void? I think it certainly would not.

NOTE. — One point, made by the defendant, was. that the plaintiff and the lessor of the plaintiff, being stated to be British subjects, the plaintiff was exposed to the objection of alien-age. Washington, Circuit Justice, observed, that he recollected no case where an alien plaintiff had recovered in ejectment. He referred to the case of Dawson v. Godfrey [4 Craneh (8 U. S.) 321], where the supreme court decided against the plaintiff, on the ground of alienage. But in this case, the title did not accrue till 1786, after the treaty of peace. However, the court being against the plaintiff upon the merits, no further notice was taken of this objection. [From this judgment the plaintiff took the case to the supreme court on writ of error. The judgment was affirmed in an opinion by Chief Justice Marshall. 5 Craneh (9 U. S.) 173. The judgment rendered by the court of common pleas, while erroneous, yet was held not to be disregarded, because it was rendered by a duly-constituted court, in the form prescribed by law, and by persons authorized to find the facts. The act of 11th December, 1778. makes no alteration in the tribunal before which the offence of treason is to be tried. “The courts of the United States are all of limited jurisdiction, and their proceedings are erroneous, if the jurisdiction be not shown upon them.” Judgments rendered in such eases may be reversed, but cannot be treated as absolute nullities.]

But. if this were the ease of a judgment rendered by a coui't of limited jurisdiction, I should feel strongly inclined to think, that, upon a just, and legal construction of the eleventh section, the lessor of the plaintiff is barred of her remedy against the purchaser. In that ease, the only argument of any consequence must be founded on the words in that section, “or made void.” It might be said, and has been strongly insisted upon, that this expression necessarily relates to a valid and subsisting judgment; because that which is already void, and never had an existence, cannot be made void. There are certainly very strong reasons for condemning this construction, as being too literal and rigid. If the legislature had used the word “declared,” instead of “made.” the construction contended for by the plaintiff’s counsel could not have been supported; because, whether the remedy pursued by the injured party were by writ of error, motion to quash,- or ejectment to recover the land, the ground of success must have been, that the judgment should be declared to be void. Now there seems to be strong reasons for believing, that the legislature intended, in all cases, to protect the purchaser, and to substitute the state in his place. One reason is, that it could never have been intended to permit the party to escape from the provisions of this section, and thus to leave the other party unprotected by the mere form in which he might elect to proceed. If he had brought a writ of error, which was clearly one of his remedies, no doubt can exist but that he would have been within the provisions of this section, and the purchaser would have been safe under it. But he would never pursue this remedy, if, in another form, he could stride over the judgment, and recover in a collateral suit. Another reason is, that the forfeited property was, by this law, made liable to pay the debts of the attainted person to its full amount; and it would therefore be most unreasonable that, after the proceeds had been thus applied, the party should also recover his property from a bona-fide purchaser, for whose indemnity no provision whatever is made. If the arguments used by the plaintiff be true, to the extent in which they were expressed, I can imagine very few cases indeed, where the injured party would find it necessary to proceed by way of writ of error, and, consequently, this beneficial provision, so intended at least, for the purchaser, would be nearly inoperative. Upon the whole. I think the verdict ought to be for the defendant.

Verdict for the defendant.