
    Abraham Collins against James Kincaid.
    Columbia,
    1804.
    Lands which passed by descent from an ancestor to an heir at I aw, before the passing of the confiscation law, cannot be affected by it, tor the offen-ces of the deceased ancestor.
    The confiscation act does not extend to the infantchil-drenof fathers who died before the act passed, declaring the of-fence, and inflicting the punishment.
    TRESPASS to try title to land in York district. Verdict for defendant. Motion for new trial.
    For the plaintiff in this action it was admitted, that the land in question was originally granted to George Julien, and that he died intestate in the summer of the year 1781, and that Jacob Julien was his eldest son and heir at law, who was an infant at the time of his father’s death.
    The plaintiff then produced a deed of conveyance of this land from Jacob Julien, after he came of age, to one Jeremiah Craven, and also another conveyance of the premises from Craven to himself, which, it was alleged, completed his title to the fee of the land.
    The defendant rested his claim on the act of assembly, passed in 1782, commonly called the confiscation act, in which the lands of George Julien, the father, are confiscated to the use of the state, for adhering to the enemies of his country. Next, a title deed from the commissioners of forfeited estates, to one John Moffat, for the land in dispute, and a deed of conveyance from Moffat, to the defendant, Kincaid.
    
    The jury, under the direction of the presiding Judge, (Waties,) found a verdict for defendant; and the present was a motion for a new trial, as a verdict against law-
    In favour of the motion it was urged, that, as a descent was cast upon the heir at law, young Jacob Julien, before the act passed, a law, however penal against George- Julien, could not affect his title or interest. That law could only affect George Julien, if he had been living, or his estate, if he had died after the act passed.1 But by no possibility could it affect the right of an unoffending infant, who had come legally, by descent, into the right of the estate, be« fore it was possible for him to do any act which could amount to a forfeiture of it. His name is not mentioned in the act; to extend the operation of it, therefore, by construction, to the innocent infant, would be subversive of the fundamental principles of justice, and the laws and constitution of our country.
    To this it was replied, that the 19th clause of the act of confiscation related back to the 4th of July, 1776, and declared, that all the real and personal estates which the different persons named in the list attached to the act, (one of whom George Julien was,) possessed or were entitled to, from that day to the 12th May, 1780, when Charleston fell into the hands of the enemy, should be confiscated to the state. And that, as the deceased George Julien did, in his life-time, between those two periods, actually possess the land in question, it became forfeited to the state ; and consequently the titles from the commissioners appointed by virtue of that act to a bona jide purchaser, was good and valid to all intents and purposes whatsoever. It was further urged, that although there are no express words in the confiscation act to cut off the descent from ancestors to heirs, in the intermediate periods from 1776 to 1782, yet it was obviously intended, and ought to have a construction to that effect; otherwise, the confiscation act might be rendered, in a great degree, a dead letter, as not embracing one half of the objects contemplated by it.
   The Judges having taken time to consider this case, a majority of them, Giumke, Bay and Tre2evant, were of opinion, that the land in dispute could not be affected by the confiscation act, as it had gone over to, and vested in, young Jacob Julien, the infant son, before the act passed. That all acts of attainder, before trial and conviction of offenders, for supposed offences against a state, working a corruption of blood, and cutting off the inheritance of children, have always been considered by the wisest and best informed men of every age and country, as arbitrary and unjust, and even repugnant to the feelings of humanity: for which reasons, courts of justice ought to give them a very rigid construction, and circumscribe them within the narrowest possible bounds and limits.

That this 19th clause of the act particularly, was one of this description, and it related back to the year 1776, a period of more than five years previous to the passing of the act declaring the offence, and fixing the punishment for the commission of it. In this respect, it was an ex post facto law, little congenial with the principles of the American revolution itself, or the spirit of our laws, and constitution of our government, as it tended to punish innocent and unoffending children, for the supposed offences of their fathers against the state, before the law itself passed, creating the offence, or defining the punishment for it.

That in the present case, George Julien, the father, died in 1781, a year before the confiscation law passed. Upon the death of the father, the estate, by the rules of the common law, went over to the son, and then became vested in him.

In the year 1782, the confiscation law passed, which, among other things, declared that the offence of adhering to the enemy, should work a forfeiture of the estates of those who did adhere to the enemy. George Julien was not then in existence; he could not therefore be said to be adhering to the enemy; and when the law passed, the father had no estate to confiscate, for it had previously gone over by descent to his infant son, whose name is not mentioned in the act as having committed any of-fence against the state ; it would therefore be against every principle of law, as well as justice, to punish him by forfeiture and confiscation of his estates. They were, for these reasons, in favour of a new trial.

Brevard and Lee, contra.

They thought the law was express and positive upon the subject, and there was nothing to prevent the legislature from passing it at the time; they were not circumscribed by a constitution, as at present, from making ex post facto laws. If a law to that effect was to be passed by the legislature at this day, it would be void and nugatory, because our present constitution forbids it. Nothing of the kind stood in their way at that day, when, perhaps, the policy of the times justified it. But that was not a matter for judicial consideration; the only point for their consideration was, whether that law was binding or not? and upon this point they had no doubt. They were, therefore, for confirming the verdict.

Rule for new trial made absolute.  