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.
Sedgwick, J.. The plaintiff in error alleges that he is the son and heir of Anna, the wife of William Martin, mentioned in the libel 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 made, by the then Attorney-General, (a) to the Court of Common Pleas, then denominated the Inferior Court of Common Pleas, holden in this county on the second Tuesday of July, 1781 ; from thence it was continued to the October term of the same court in the same year, when, upon proclamations being made, as required by the statute, and no person appearing to defend against the libel, a default was entered, and judgment was rendered that the described premises escheat to the state. Before I proceed to consider the original proceedings in this case, it will not be improper to mention certain facts, although those facts are in the knowledge of every one.
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 support *286their new situation. In this new and untried assumption, the Attorney-General, with sentiments which are equally just and liberal, admits the right of each individual to consult his own conscience in deciding on the part which it was his duty to adopt. While those generous spirits who united in defending, at every risk, the liberties and independence of their country, were, in the opinion of their fellow-citizens, entitled to deserved applause, those who, from timidity, or doubt, or principles of duty and conscience, adhered to their former allegiance, were guilty of no crime for which a punishment could be justly inflicted; and if, from such opinions and * impressions, they withdrew from the country, all the evils to which they could justly be subjected would be a complete dissolution of their connection with the country from which they voluntarily withdrew, and the natural consequences thereof. They could not be punished for treason, for they had never united with the new independent society. They had created no new allegiance, for it would be inconsistent with that to which they had a right to adhere. They had an election, and this was to be determined by their own opinions of interest and duty. If they chose to unite with the majority, they became subject to the laws, and were bound to obedience. If they elected to withdraw, the support of the conflict, in which we were engaged, required that they should be permitted to do nothing which would weaken our means of defence. If they did withdraw, they abandoned whatever might be made the means of the defence of the country, and, especially, such property as might aid in that defence. Roused as the public mind then was, and engaged in a contest, oti the issue of which depended every thing dear and valuable in life, it is not strange that those who refused to assist in the conflict, and voluntarily abandoned their country, at a time of its utmost need, should be deemed offenders. But the crimes of which they were guilty were not punishable further than resulted inevitably from the nature of the subject: the loss of the property which they abandoned, and which, as I think I may with some degree of propriety express it, they had staked on the issue of the contest. On these principles was the law under consideration made. By the withdrawing of the proprietor, the property left behind was derelict; it might not be converted by the owner into means of offence; it might justly be seized by the community for its own defence and security. That this was the light in which the * description of persons called absentees was viewed by the legislature, is clear to my mind from the consideration that the acts for which death was to be inflicted, if performed by those from whom allegiance was due, had, in their cases, no punishment pro*287vided for them; and that, on their departure from the country, for the purposes declared in the law, they were thereby debarred from becoming thereafter connected with this society. Yet, although it was admitted, by inevitable implication, that they had committed no crime for which it was intended that a punishment should, or supposed that it ought to be inflicted, it is most manifest from the whole purview of the laws on this subject, that they were far from being considered as absolutely innocent; they were contemplated as “ evilly disposed and regardless of their duty towards their country,” then invaded by an enemy endeavoring the destruction of its independence.
The act of the ?Mh 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 whiot she was to be “ 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 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 *288Yet, notwithstanding the extent of their powers, they had, as the) now have, as many sets of judges as there are counties. These judges, though as men of great consideration and respectability, yet had no pretension to that legal knowledge which judges in the last resort ought'to possess. These courts, thus constituted, had jurisdiction as extensive as the Court of Common Pleas in England. The “ Superior Court” was supreme in all questions of law. It had expressly given to it all the powers of the courts of King’s Bench, Common Pleas, and Exchequer, in England.. These facts seem to prove, (and to my mind irresistibly,) that the latter court had a power to control all the errors and to rectify all the mistakes of the former; and that such power could not be effectually * exercised by means of appeal, is evident from many instances which might be put, of which the present is one. If this was not the case, there could be no rule, no law, no security of property, or, in other words, no liberty. That an intelligent people — a people high-minded and alive to a sense of their rights, who resented, even to blood, an invasion of property, and for this cause rent an empire in twain — that such a people, from the first settlement of the country, would permit such a state of things, is incredible; (a) a state of things in which there must be, from the nature of man, as many conflicting laws as there were counties; or, more properly, as I said before, no law, no rule, no security, no liberty. In addition to what I have said, I think it proper to add that, until this time, I never heard the controlling power of the Superior Court over the courts of common pleas called in question; and I have no doubt it was always exercised, upon all proper occasions, from their first institution. So, undoubtedly, was the fact. But the Attorney-General thinks (admitting what is proved) that in this case a writ of error does not lie, because, he very justly observes, a writ of error, in England, lies only from a court of common law to an inferior court of record, and in such instances only where the inferior court proceeds according to the course of the common law. It is not intended, as I presume, to suggest that if an inferior court mistakes the rights of parties, or transgresses the bounds of their authority, that there is no remedy; this would be monstrous and absurd; but that in all instances where the proceedings of the inferior court are not according to the course of the common law, although the injury * is to be redressed, the remedy is not through the medium of a writ of error. *289This distinction is, in England, a matter of substance; here, it is only a matter of form. There, the jurisprudence of the country has thrown the several subjects of it into various classes — the common law, equity, the admiralty, the ecclesiastical, &c., jurisdictions. In all, there are inferior and superior courts; in all, the errors of inferior are to be corrected by superior courts ; but in none, except in those of common law jurisdiction, by the process technically called a writ of error. On the contrary, here, there is but one court of superintending jurisdiction, and to its superintendence all those which are inferior are subjected. It will therefore readily be perceived that there is no difference, except in name, by what technical denomination of process this superintending jurisdiction exercises its authority. But I have no doubt that the proceedings complained of by this writ of error, were the proceedings of a court of record, and that they were to be had by the rules of the common law. Even in England, wherever a jurisdiction is created by act of parliament, and the court, or judge, that exercises that jurisdiction, acts as a court or judge of record, according to the course of the common law, a writ of error lies on their judgments; but where they act in a summary method, there a writ of error lies not, but a certiorari, (a) In this case, the Court below was a court of record, and their proceedings, as directed by the statute, were according to the course of the common law. That the process by which the subject is brought before the Court, and which is adapted to the nature of it, is new, and directed by the statute, makes no difference in this respect, is evident from many instances which might be put, and among them those which were mentioned by the counsel for the * plaintiff, of partition, and the process for recovering damages for overflowing lands; in neither of which has it ever been doubted that a writ of error lies. The Court, in these cases, although the process be new, proceeds according to the course of the common law. And what completely meets this objection, and defeats it, is, the express provision of the statute, that the issue, in this case, should be tried by a jury in the known and ordinary course of laio used and approved in this state; so that, if it be true that the distinction between writs of error and other processes for correcting the proceedings of inferior courts, (a distinction merely nominal, and which will answer no purpose of substantial justice,) is to be preserved, it cannot apply in this case.
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.
*290By the record before as, it appears that William Martin and Anna Martin, the father and mother of the plaintiff in error, are jointly charged with the several acts which are alleged in the libel of the Attorney-General as incurring the forfeiture for which he sued ; that since the 19th day of April, 1775, they had levied war and conspired to levy war against the provinces, or colonies, or United States; that they had adhered to the king of Great Britain, his fleets and armies, and had given to them aid and comfort; that, since that time, they had, without the permission of the legislative or executive authority of any of the United States, withdrawn themselves" therefrom into parts and places under the acknowledged authority of the king of Great Britain: all these are charged as done jointly by the husband and wife; and we are called upon, by matter, apparent on the record, and by one of the errors expressly assigned, to say whether *a feme-covert, for any of these acts,, performed, with her husband, is within the intention of the statute; and I think that she is not. In construing statutes, the great object is to discover from the words, ■ the subject matter, the mischiefs contemplated, and the remedies proposed, what was the true meaning and design of the legislature. In the relation of husband and wife, the law makes, in her behalf, such an allowance for the authority of the husband, and her duty of obedience, that guilt is not imputed to her for "actions performed jointly by them, unless of the most heinous and aggravated nature. For instance; the law says, whoever steals shall be punished, and yet if a wife participates in a theft with her husband she is not punishable. (1) Innumerable other instances might be given. She is exempted from punishment, not because she is not within the letter of the law, if she had sufficient will to be considered as acting voluntarily and as a moral agent, but because she is viewed in such a state of subjec tion, and so under the control of her husband, that she acts merely as bis instrument, and that no guilt is imputable to her. Compare this with the case under consideration. In a case of great political interest, in which men of great powers and equal integrity, as is said by the Attorney-General, divided ; and where a feme-covert is not expressly included, shall we suppose her to be so by general words? Can we believe that a wife, for so respecting' the understanding of her husband as to submit her own opinions to his, on a subject so all-important as this, should lose her own property, and forfeit the inheritance of her children ? Was she to be considered as criminal because she permitted her husband to elect his own and her place of residence ? Because she did not, in violation of her *291marriage vows, rebel against the will of her husband? So hard and cruel a construction against * the general and known principles of law on this subject, could be justified by none but strong and unequivocal expressions. So far is this from being the case in this statute, that it seems to me there are no words by which it can fairly be understood that such was the intention of the legislature; but the contrary. The preamble of the statute has described the persons whom it intended to bring within it. It is that member who “ withdraws himself from the jurisdiction of the government, and thereby deprives it of the benefit of his personal services.” A wife who left the country in the company of her husband did not ivithdraw herself; but was, if I may so express it, withdrawn by him. She did not deprive the government of the benefit of her personal services; she had none to render; none were exacted of her. “ The member who so withdraws, incurs,” says the preamble, “ the forfeiture of all his property, rights, and liberties, holden under and derived from that constitution of government, to the support of which he has refused to afford his aid and assistance.” Can any one believe it was the intention of the legislature to demand of femes-coveri their aid and assistance in the support of their constitution of government ? The preamble then goes on to particularize the violation of our rights by our former sovereign, and proceeds to declare that it thereupon “ became the indispensable duty of all the people of said states forthwith to unite in defence of their common freedom, and by arms to oppose the fleets and armies of the said king; yet, nevertheless, divers of the members of this, and of the other United States of America, evilly disposed, or regardless of their duty towards their country, did withdraw themselves,” &c. Now it is unquestionably true that the members here spoken of as “ evilly disposed ” are included in the people abovementioned. * What then was the duty of these evilly-disposed persons, for a violation of which they were to be cut off" from the community to which they had belonged, and rendered aliens to it ? It was “ to unite in defence of their common freedom, and by arms to oppose ” an invading enemy. And can it be supposed to have been the intention of the legislature to exact the performance of this duty from wives, in opposition to the will and command of their husbands? Can it be believed that a humane and just legislature ever intended that wives should be subjected to the horrid alternative of, either, on the one hand, separating from their husbands and disobeying them, or, on the other, of sacrificing their property ? It is impossible for me to suppose that such was ever their intention. The conclusion of the preamble speaks of those who withdrew as *292thereby “ aiding or giving encouragement and countenance to the operations ” of the enemy. Were femes-covert, accompanying their husbands, thus considered by the legislature ? " I believe not. So far from believing that wives are within the statute, for any acts by them done jointly with their husbands, that a fair construction of the whole act together, does, to my judgment, clearly exclude them. And I do not discern that the 7th sect., which has been cited to prove that femes-covert, for withdrawing with their husbands, were within the act, has the least tendency to that purpose. This sect. does not contemplate those who withdrew with their husbands, but those who staid behind. The provision which it makes for them is not from their own estates, but from those of their husbands. And I cannot perceive that any inference is to be drawn from the one case which tends to illustrate the other. On the whole I am clearly of opinion that for this error the judgment must be reversed.
* I do not think it improper, before I conclude, to say something on one other, subject which was mentioned by the counsel on both sides, although it is not judicially before the Court. It was stated that, should this judgment be reversed for some of the reasons assigned, for the same reasons, all the judgments of confiscation were reversible. This would make no difference in my opinions or conduct. As a judge, it is my duty to pronounce the law, regardless of the consequences. Fiatjustitia ruat caelum, is a maxim by which I hope I shall always have the independence to be governed.
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.
Strong, J.,(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 law'. 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, *293whether the court has existed from time immemorial or is created * by statute, that a writ of error lies upon its judgments. In the present instance, the inferior court was a court of record which had long been established as such, proceeding according to the rules of the common law. Until the statute of April 30th, 1779, they had not jurisdiction of this particular class of cases, which were indeed created by that statute, and the jurisdiction thereof given to the then inferior Courts of Common Pleas; and the statute expressly says that they should execute these powers, and try these cases by a jury “ in the known and ordinary course of law used and approved in this state; ” which, if it has.; any meaning, must mean according to the course of the common law. The writ of error therefore lies.
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 her estate. I am clearly of opinion that the statute does not extend to femes-covert. As to the other points in the cause, I 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.
Dana, C. J.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, when 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. In *294common cases, as well in this Court as in the Court of Common Pleas, it is not usual to enter on the record the act of notifying the defendant ; that appears by the files in the case; but in this case the files are. lost; and, therefore, we ought to presume that the notice was given.
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.
* 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, (a) and I see no reason to alter it. The words of the statute are general; femes-covert are not named; if the statute extends to -them, it must be by implication. The statute does not charge a crime; every person had a right to take which side he pleased, in the contest in which we were then engaged. The statute rests on another principle. It is this; that every subject held his lands mediately or immediately from the crown. Then it became a question whether all the real property in the country was not holden under the authority of the states. And it was here adopted as a principle of law that it was so holden. The consequence was, that those persons who withdrew themselves from the country, for •the purposes mentioned in the statute, lost the right of holding in the manner they would have been entitled to hold if the empire had not been divided. It was not thought fit and right that they should continue to possess and enjoy their property, let the issue be what it might. The language of the statute was, Go if you please ; but if you withdraw, we will not protect your property; we will take it. This was fair, they were not to be punished as criminal; but their property was considered as abandoned; and of course that it belonged to the state. This was a consequence resulting from the division of the empire.
But it is objected by the Attorney-General, that a writ of error *295docs not lie in this case, because the proceedings of the inferior court were under a particular statute giving the jurisdiction, and in a * course different from the common law. To this it may be answered that the jurisdiction being given by the statute makes no difference, and that nothing is varied excepting merely the form of process; but the inquiry and decision were to be had, by the positive provisions of the statute, according to the principles of the common law. It has never been doubted that judgments rendered in the Court of Common Pleas upon awards made under rules of reference entered into before a justice of the peace, were removable to this Court by writ of error; and yet the authority of the Common Pleas, in such cases, is wholly by statute. For although the form of the process, by which those cases are brought before the Court of Common Pleas, is different from the common and ordinary processes of the court, yet the proceedings and judgment of that court upon the award are the same, in all respects, as if the award had been made by referees appointed by a rule of the court. As to the consequences of reversing the judgment now before us, arguments from inconvenience have been pressed upon the Court. We are not to take that into consideration, but what the duty is which the law requires of us. We are not accountable for the consequences; the defects in the proceedings are not our fault. If the judgment is erroneous, we are bound to say so. There are, however, I believe, but a few cases similar to the present; and I think that writs of error are limited to twenty years.
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 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 Paine
The Attorney-General here interrupted the judge, and said that he was misunderstood ae 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 JlUarnKij. General to quash the writ of error was overruled. Vide ante, p. 352.