
    William H. M’Neil versus Henry Bright & Al.
    A writ of possession was not necessary to complete a judgment m favor of the state in prosecutions under the laws against absentees.
    If a judgment of a confiscation under the absentee laws was rendered after the treaty had declared that no future confiscations should take place, such judgment is valid, unless reversed by writ of error.
    The laws made against conspirators and absentees before the adoption of the constitution of the commonwealth, are not repealed by the declaration of rights prefixed to the constitution,
    This was a writ of right to recover seisin of one undivided fifth part of a messuage and land therein described, alleging that the demandant’s father, Archibald M’Neil, was seised thereof within sixty years past, and that the tenants had no entry, except by Samuel Conant, who disseised the said Archibald.
    
    The tenants claim under Richard Chamberlain, who vouched in Joshua Woods, who vouched in the heirs, executors, and administrators, of Samuel Conant, deceased, who have vouched in the commonwealth, who, by the Attorney and Solicitor-General, pursuant to a resolution of the legislature, pleaded that the tenants have more right to hold the tenements demanded than the demandant has to recover them ; upon which plea issue was joined. At November term, 1806, this issue was tried before Parker, J., and a verdict found for the tenants ; which verdict was understood to be given subject to the opinion of the Court on certain points of law reserved by the judge, as stated in his report of the case, upon which the demand-ant moved for a new trial.
    The parties, being desirous to obtain a judgment on principles oi law finally to settle the controversy, at this term agreed upon the following statement of facts and evidence:—
    I. It is agreed that Archibald M’Neil, on whose seisin the demandant counts, was, before and on the 19th day of April, 1775, an inhabitant and member of the late province, since state, [* 283 ] of Massachusetts Bay, and a resident in the town *of Boston, wnthin said province and state ; that he was a subject to the king of Great Britain, and never withdrew his allegiance from the said king, but, adhering to him, lived his subject until his death, which was in July, 1784.
    II. That before the said 19th day of April, 1775, viz., in 1753, the said Archibald M’Neil became seised of the demanded premises in fee simple, and so continued until March, 1776, when he left the said state of Massachusetts Bay, and never in his lifetime made any deed, grant, or conveyance, of the same.
    III. That after the 19th day of April aforesaid, viz., in March, 1776, the said Archibald M’Neil, without the permission of the legislature or executive authority of the said state of Massachusetts Bay, or of any other of the United States, withdrew himself from the said town of Boston, and said state of Massachusetts Bay, with the fleet and army of the said king of Great Britain, into parts and places under the acknowledged authority and dominion of the said king, and adhered to the said king, his fleet arid army, and never returned into the said state of Massachusetts Bay, or any other of the United States, until after the treaty of peace between the said United States and the said king of Great Britain.
    
    IV. That the said Archibald M’Neil was the same person mentioned by the name of Archibald M’Neil in an act passed in the year 1778, entitled “An act to prevent the return to this state of certain persons therein named, and others, who have left this state, or either of the United States, and joined the enemies thereof.”
    V. That by virtue of an act entitled “ An act to prevent the waste, destruction, and embezzlement, of the goods or estates of such persons, who have left the same, and fled to our enemies for protection, and also for payment of their just debts out of their estates,” passed in 1777, Andrew Black was, in the manner prescribed by said act, appointed by the judge of probate for the county of Suffolk an agent for the estate of the said Archibald M’Neil, as an absentee ; and, conformably to the provision of said act, immediately after-wards entered into, and took possession of the demanded * 2S4 ] premises, as estate left by the said Archibald * M’Neil 
      and being so in possession thereof, in his said capacity as an agent, leased the same to Samuel Conant, who, by virtue of the said lease, entered upon the said premises, and continued in the possession thereof, under the said lease, until the 7th day of September, 1782. The certified copies of the i eco ids and pro ceedings of the probate office in the county of Suffolk, relative to the appointment and transactions of the said agent, are to be admitted as part of the case.
    VI. That in and by an act entitled “ An act to provide for the payment of debts due from the conspirators and absentees, and for the recovery of debts due to them,” Richard Crunch, Samuel Henshaw, and Samuel Barrett, were appointed a committee within and for the county of Suffolk, to sell the estates of conspirators and absentees lying in the said county of Suffolk; and in and by a resolve of the legislature, passed November 29, 1780, the same Samuel Henshaw and Samuel Barrett, together with Ebenezer Wales, were appointed a committee to sell the estates and effects of absentees, as in and by said resolve appears ; and the said Henshaw and Barrett, two of the committee aforesaid, on the 7th day of September, 1782, contracted to sell the demanded premises to the said Samuel Conant, he then being in possession thereof, as tenant under the lease aforesaid, and thereupon made, executed, and delivered, to him the deed filed in this case.
    [ This deed recites the authority given the committee to sell the estates of conspirators and absentees, after which Henshaw and Barrett, calling themselves a major part of the committee, for 1000/. convey the tenements to Conant in fee, with a general warranty in behalf of the commonwealth.]
    VII. That any gazette, containing any advertisement published in it relative to the sale of the premises by said committee, shall be admitted as part of the case, and its legal operation be submitted to the Court; that Richard Cranch, one of the said committee, with the said Henshaw and Barrett, was and is alive, but did not sign the said deed to Conant; and that Ebenezer Wales, who was mentioned in the resolve of November 29, 1780, as one of a committee with *said Henshaw and Barrett, is yet alive, [ * 285 ] but did not sign the deed.
    VIII. That the deed in the case from Samuel Conant to William Woods was duly executed October 2, 1792. [This deed releases to Woods the same tenements to hold in fee, with a warranty against the grantor and his heirs, and all persons claiming under him or them.]
    
    IX. That the deed in the case from Andreiv Woods, administrator of the estate of the said William Woods, by his attorney, R. G. Amory, to said Richard Chamberlain, was executed, under legal authority, by said attorney of said administrator, May 1, 1801. [ This is a conveyance to Chamberlain, in fee, with the usual covenants made by administrators selling land by virtue of license from Court.]
    
    X. That at the Supreme Judicial Court holden at Boston in and for the county of Suffolk on the third Tuesday of November, 1782, being the 19th day of said month, (and which continued in session until the 7th day of December then next,) proceedings were had, and judgment rendered, as appears by the record thereof in the same Court, of which a copy is filed in this case ; which judgment remains unreversed ; but no writ of habere facias possessionem has ever been sued out thereon; and it is agreed that the tenements described in said judgment and demanded in this writ are the same.
    
      [The judgment here referred to was rendered upon the suit, information, or complaint, of the government and people of the Massachusetts Bay, in New England, now styled the commonwealth of Massachusetts, against the said Archibald M’Neil, filed by Robert Treat Paine, Esq., their Attorney-General, in the Court of Common Pleas, and brought by the appeal of the respondent to the Supreme Judicial Court, where, after one continuance, the respondent was defaulted, and judgment ivas thereon rendered “ that the said messuage, lands, and appurtenances, escheat, enure, and accrue, to the sole use and benefit of the commonwealth aforesaid, and that the said commonwealth recover possession thereof accordingly.” —“ Suffolk, ss. Boston, December 7, 1782. Judgment is entered up according to the verdicts, and the Court is adjourned without day.”
    
    [ * 286 ] * XI. That all acts, resolves, and orders, of the General Court, and all treaties and laws of the United States, so far as the same are applicable to this case, are to be considered as part thereof.
    XII. That the said Archibald M’Neil was not, after he went from Boston, in March, 1776, ever an inhabitant of, or resident in, Massachusetts, or in any other of the United States; and was not in peaceable possession of the demanded premises at any time after he went, as aforesaid, from Boston; but that the said Andrew Black, in his capacity of agent as aforesaid, the said Samuel Conant, as lessee under the said agent, and as purchaser under the sale and conveyance aforesaid from the said Henshaw and Barrett, two of the said committee, and the assigns of the said Conant, claiming under his title derived as aforesaid, have been in the actual possession of the demanded premises ever since the appointment of the said Andrew Black, agent as aforesaid.
    XIII. That the said Henshaw and Barrett, two of the said comnm tee, received and accounted for the following sums, and no more on account of the demanded premises, vis., 10001 in consideration of the sale to said Conant, as mentioned in the deed from said Henshaw and Barrett to him, 50Z. 11s. received from said Conant for rent due before the sale, and 24Z. 11s. 4d. from the said agent, Andrew Black, for rent, amounting in the whole to the sum of 1075Z 3s. 4d. And the debts allowed against the said Archibald M’Neil’ estate, in pursuance of the provisions of the laws for that purpose amounted to 12541. 17s. lljd.
    XIV. That the demandant is a son of the said Archibald M’Neil, and one of his heirs, in the manner and proportion set forth in his declaration ; that in March, 1776, he, being under the age of twenty-one years, went from Boston with his said father, and continued with him until his death, as aforesaid, and afterwards, viz., in 1789, returned to the United States; that he became of the age of twenty-one years, August 15, 1785.
    XV. That the entries on the docket, and the affidavit of Charles Cushing, the clerk, (if evidence of that nature be admissible in the opinion of the Court,) which is on file, are to * be [ * 287 ] considered as evidence in this case (notwithstanding any objection in point of form) relative to the time of entering up the judgment aforesaid.
    If, upon this statement of facts and evidence in the case, the Court are of opinion that the demandant is by law entitled to recover the demanded premises, judgment is to be rendered in his favor; otherwise, judgment is to be rendered in favor of the tenants, agreeably to the verdict of the jury; which is to be conclusive of the fact, that the judgment of confiscation was rendered before the date of the provisional articles, if the instructions of the presiding judge to the jury, and his admission of evidence on that point, were correct; otherwise the Court may order a new trial.
    
      [The judge states in his report, that evidence was offered from the docket, and from the testimony of the clerk, that the judgment was in fact entered up on the third day of the sitting of the Court, which point was left to the jury upon that evidence, they being instructed that, there being prima facie evidence that judgment was rendered before the signing the articles, it was incumbent on the party wishing to avoid th judgment, to show that it was entered up after the signing of the articles; and being further instructed that the judgment must be considered in force until reversed by writ of error.]
    
    These points being thus settled, the cause was argued at the last July adjournment in this county, by Dexter and T. Williams for the demandant, and by Bidwell, Attorney-General, and Davis, Solicitor-General, for the tenants. As the opinion of the Court was finally rested on the force and effect of the judgment of confiscation, it would be useless to state the other points urged by the counsel in arguing the cause, or the reasonings and authorities pro duced in support of those points.
    The objections to the judgment made by the counsel for the demandant were principally, 1. That it had never been carried into effect, no writ of habere facias possessionem, ever having issued.
    2. That having in fact been rendered after the provisional articles of peace were executed, it was ipso facto void. [*288] *3. That the constitution of the commonwealth had virtually repealed the laws respecting conspirators and absentees, before this judgment was rendered by force of those laws.
    As to the first objection, it was urged that until a writ of possession was issued and returned, the commonwealth could not be said to be seised, the whole title remained in the former owner.  This position is fortified beyond contradiction by the different language adopted by the legislature in the act against conspirators, and in the act against absentees. In the former of these acts, the government and people are declared to be in the real and actual possession of the lands, tenements, &c., of the objects of the act, without further inquiry, adjudication, or determination, thereafter to be had. But, in the act respecting absentees, provision was made for process, and trial by a jury, whereby to determine what estates were forfeited by force of the act; and if the jury returned their verdict that they found the estate proceeded against, or any part of it forfeited, the court was directed to “ proceed to give judgment thereon, and issue a writ of habere facias possessionem, in behalf of the government and people, to cause them to be seised and possessed of the same."
    
    If the commonwealth has, then, never obtained legal seisin and possession of this estate, there is no privity between it and the pres ent tenants, and they have no right to call it in aid of their defence.
    2. By the provisional treaty, (Art. 6,) it was stipulated, on the part of the United States, that no future confiscations should be made. These articles bear date the 30th day of November, 1782. The judgment in this case appears by the record to have been enteied on the 7th of December following. It could not, then, be lawfully entered, and it was ipso facto a void judgment.
    3. It was insisted for the demandant that these statutes respect ing conspirators and absentees, being inconsistent with the twenty fourth article in the declaration of rights, were thereby virtually repealed. By the article referréd to, it is * “ declared [ * 289 ] that laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government.”
    
      For the tenants, as to the first objection to the judgment of confiscation, viz., the want of a writ of habere facias possessionem, it was observed that a writ of'execution is not a part of the judgment, but a consequence of it. It is mere process, and never enters into the consideration of the Court in an inquiry whether a judgment is erroneous or correct.
    At common law, the recoverer in a real action, where the demand is certain, may enter without a writ of habere facias seisinam. He may execute his own judgment; and the assistance of the sheriff is only to keep the peace.  The judgment establishes the right, and the writ of execution is only of use where there is a counter possession.
    Wherever an execution is necessary, the party in whose favor the judgment is may sue it out. He is entitled to it as a writ of right. The Court may not, at their discretion, deny it. The provision in the absentee act, that the Court shall, after rendering judgment, issue an habere facias possessionem, is no more than would have been implied, if it had not been expressed in the act. It makes no change in the common law on this point. Upon any judgment, the Court are bound to issue the writ of execution adapted to the nature of the judgment.
    In other statutes, analogous expressions are used. For instance, the act describing the powers of justices in civil causes,  declares that, “ upon all judgments given by a justice of the peace in civil actions, he shall award execution thereon in form by law prescribed.” A similar declaration occurs in the act prescribing the method of satisfying judgments in favor of the commonwealth:  “ a. warrant of distress shall issue,” &c. The law in these cases is mandatory to the Court; but the writ of execution is not thereby made essential to the judgment, or to the right of the party established by * the judgment. If he omits to sue [ * 290 ] it out, the omission does not invalidate his judgment. If an execution becomes unnecessary, by a voluntary payment of the debt, or a peaceable entry on the land recovered, the suing it out would be nugatory, and a useless expense.
    This was the fact in the case under consideration. The premises were defined in the judgment, and could not be rendered more definite by the execution of an habere facias possessionem There was no adversary possession to be removed. The possession of Conant, the grantee of the commonwealth with warranty, was the possession of the commonwealth.
    The whole object of the trial in this case was accomplished when the judgment was rendered; that object, as declared in the statute, being to determine what estates were forfeited and did escheat, by force of that act, and to give the persons described in the act an opportunity to have their property defended in the best manner their situation would admit of.
    Neither at common law, nor by the statute, is a writ of execution essential to the validity of a judgment, or the perfection of the title. The king is in immediate possession, by office found, without entry or execution.  So is the commonwealth by our own statute. 
    
    In addition to this legal possession, which would have been sufficient, there appears to have 'been, in this case, by peaceable entry and occupation, an actual possession in the commonwealth, and the grantee under the commonwealth. In the strictest sense, therefore, there was the juris et seisince conjunctio, which constitutes a perfect title. So that Archibald M’Neil, the demandant’s father, was in his lifetime divested of his right, and did not die seised of the demanded premises.
    To the second objection to the judgment, viz., that it was rendered after the date of the provisional articles of peace, it was answered, that the verdict of the jury was conclusive as to the fact, if the judge’s admission of evidence, and his instructions to the jury, were correct, on this point. The evidence admitted con-[*291 ] sisted of entries on the docket, and the testimony *of the clerk. One of the entries was produced for the tenants. It stands immediately under the action, and is, in substance, that proclamation was made, the defendant defaulted, and judgment of confiscation rendered; but no day is mentioned. The other entry was produced, and relied on by the demandant. It stands at the end of the docket, and is a general order of the Court, at the close of the term, that judgment be entered up agreeably to the verdicts, &c. The testimony of the clerk was also produced by the demandant, and was accepted to at the trial by the tenants. A party can never object that evidence offered by himself was received, when it ought to have been rejected. The question, then, as to the correctness of the judge in admitting the evidence, is confined to the first entry on the docket; which was clearly admissible, as it contained the original abbreviated minutes, from which the clerk made up his record at large.
    The instructions of the judge to the jury included two propositions : 1. That the judgment was prima facie rendered before the signing of the provisional articles. 2. That it was incumbent on the . party wishing to avoid the judgment, on the score of its repugnancy to those articles, to show that it was entered up after the signing of them. The last position results from the first, it being the very nature of prima facie evidence, that it avails until the contrary is proved. The former point, though more open to controversy, is equally favorable to the tenants. The judgment purports to have been rendered on the first day of the term; no other time is mentioned. This is the doctrine of the common law.  And if we have in practice deviated from it, for any special purpose, such as that of supporting, against an intermediate lien, the title under an execution, extended within thirty days after final judgment, upon property attached upon mesne process, the deviation is only an exception from the rule.
    The judge’s admission of evidence, and instructions to the jury, being shown to be correct, the verdict establishes the priority of the judgment of confiscation to the provisional articles.
    * But if it had been otherwise, it is still contended [ * 292 ] that those articles were not the treaty of peace, from the date of which this and all other stipulations took effect. The provisional articles were never ratified ; they were not a proper subject of ratification, being nothing more than a conditional agreement that, after a certain event, then future and contingent, there should oe a treaty to be composed of those articles then agreed upon. The event, upon which they were to come into operation, a peace between France and Great Britain, did not take place until the January following. Even after that event, those articles were not to become a treaty, by virtue of the signing them in November, 1782; but a future treaty was to be formed, in which the articles thus previously' agreed upon should be inserted. That treaty was accordingly formed, September 3, 1783, and afterwards duly ratified. From that time only future confiscations were prohibited. In one respect, it had been provisionally agreed, and was accordingly inserted in the definitive treaty, that the state of things at the date of the provisional agreement should be regarded. If any territories were conquered on either side, after that date, the conquests were to be mutually restored. Fxpressio unius est alterius exclusio. This express provision in one particular, and total silence in others, de« monstrates that in other respects the treaty was not intended to have a retrospective relation to the date of the provisional articles
    But if the judgment against the demandant’s father were repug nant to the treaty, and for that cause erroneous, and reversible for the error, yet, while it stands unreversed, it is conclusive upon the parties to it and their heirs, as to the subject matter of it. Whether erroneous or not, cannot be decided, by this or any other Court, in a collateral action between other parties. It is a question which can be considered only on a writ of error regularly brought for its reversal. This is a doctrine so well established and understood, that it would be a waste of time to produce authorities in support of it. To examine, in such an indirect and collateral manner, the merits of a solemn judgment of this Court, the highest judicial tribunal in the commonwealth, would be an evasion of a record, and a prostration of first principles.
    [*293] *As to the suggestion, that the acts of confiscation were virtually repealed by the twenty-fourth article of the declaration of rights, it was answered, that at the time these acts were made, no such restriction existed ; the legislature was absolute and uncontrolled. This article can have no retrospective operation; and, if it could have, it is confined to prosecutions for crimes, and, in the case of Martin vs. Commonwealth, [ante vol. i. 347,] it was held that absentees were not criminals. These acts formed a part of a system of measures thought necessary by those who had the right to determine what was necessary to effect the great end then in view, the independence of these states.
    The counsel for the tenants insisted also that the demandant was an alien at the time of his father’s death, and so incapable of talcing by descent.
    In answer to an inquiry from the bench, whether alienage must not be pleaded in abatement, and whether advantage could be taken of it under the general issue, it was said: The objection is not made to the demandant’s capacity to bring the action. If it were, it must have been pleaded in abatement. By omitting so to plead it, the right of taking that exception is undoubtedly waived Whether, before the commencement of this suit, the demandant had, by naturalization, become capable of suing such an action, is a question which cannot now be raised in this action. But as a descent of the demanded premises from his father to himself is one of the essential links in his chain of title, his capacity to take by descent is a point involved in a denial of his right. If he was not capable of inheriting, he certainly did not inherit, and therefore has no such title as he has counted upon. It goes directly to the merit# of the case, and makes a material part of the general issue.
    
      
      For the demandant, in reply, it was said that the fact assumed on the other side, viz., that the commonwealth was in possession of this estate at the time of the judgment of confiscation, was untrue. If Conant had before been in possession as tenant to the commonwealth, yet, for several months previous to this period, he was in claim ing, as a stranger, a fee simple in his own right, which he had purchased of the committee. * His possession [ * 294 ] can, then, in no sense be the possession of the commonwealth. If it had been the commonwealth’s title which the committee conveyed, still the purchaser was in no sense tenant to the commonwealth. But it was not the title of the commonwealth, but of M’Neil, which Conant purchased. How, then, can this judgment, unexecuted, go to confirm the estate of this stranger to it ?
    In former times, livery of seisin constituted the whole of a conveyance of land. When learning became more general, the feoffment was adopted; but still livery must accompany it; and, to this day, possession is necessary to perfect every conveyance, except those which have been devised under the statute of uses. This is not only true of conveyances in pais, but those which are effected by matter of record, as fines and recoveries, are incomplete until an actual seisin and possession.
    In this state,.a deed duly executed, acknowledged, and recorded, is, by statute, made tantamount to livery and seisin; but, in every case where this statute does not apply, the old doctrine remains. In real actions, the demandant must count on the seisin of himself or his ancestor; no title can be derived, either to the king or subject, without seisin, unless by virtue of some statute. It is true that upon an office found, the king is deemed to be in possession without execution. But our legislature, in the statute provision under consideration, have renounced this prerogative, for they di rect that a writ of habere facias possessionem shall issue “ to cause the government and people to be seised and possessed of the same,” which clearly shows their understanding to have been that they would not be legally seised and possessed without such writ. The direction is absolute, and applies to every case which should arise under the statute. It was peculiarly necessary to be observed in this case, where the estate was not vacant, but a stranger was in full and quiet possession. If the requisition had been of a thing useless and frivolous, it would not be for this Court to dispense with it as unnecessary, claiming to be wiser than the legislature.
    The objection in this case is not to the judgment. That was complete; but the confiscation was incomplete. And this is the only mode in which the demandant can avail himself * rf the defect, it is not pretended to be error that an [ * 295 ] execution does not issue upon a judgment. But, to make a confiscation complete, possession must be taken. The very term implies the transferring the property confiscated into the Fiscus or public chest.
    The second point stated in the opening of the argument for the demandant is still relied on, viz., that this judgment of confiscation, being rendered after a solemn treaty had provided that no future confiscations should take place, was ipso facto void, and a mere nullity. The date of the preliminary articles is the true time from which the definitive treaty takes effect. This is true in fact and constant practice, and it must be true from the reason of the thing. Otherwise it would never be the same compact which was at first made and afterwards confirmed and ratified. The subjects of the compact may have essentially varied in the interim. And in this case, if, after signing the preliminary articles, the courts here went on confiscating, it was a manifest breach of contract.
    It was suggested that the demandant must procure a reversal of the judgment by his writ of error, before he can have advantage of this point. But if a court has undertaken to render judgment upon a matter of which it had no jurisdiction, surely the party is neither bound by such judgment, nor driven to his writ of error to obtain its reversal.
    But it has been endeavored to be shown in this case, that this judgment was, in fact, rendered previous to the date of the provisional articles. It cannot be denied that in the English courts judgments are always considered as rendered on the first day of the term. But the presumption here is directly opposite; and every judgment is held to be of the last day of the term, unless in any particular case the record contradicts the general presumption. There is nothing in the record to take this case out of the general presumption. On the contrary, the judgments on the verdicts are expressly said to be entered up on the 9th of December.
    If the treaty had not put a stop to further prosecutions under these laws, it is contended that our constitution had virtually repealed them. If this argument is now urged for the [ * 296 ] * first time, yet it will not be less attended to on that account, if it appear to be founded in truth and reason. '
    That anterior to the adoption of our constitution the legislature had authority to enact these laws is not denied ; and no friend to our happy revolution will be disposed to scrutinize too severely into the measures, which were at the time thought necessary to effect it. It is time, however, to be on our guard against confounding revolutionary measures with those which are to be approved and adopted, when the revolution is completed and fixed, and stable principles of jurisprudence are looked to as its best fruit. It is important not to cover with the glory of that revolution principles which will not stand the test of justice and morals. In future times, times perhaps nearer than we are aware, it will be well that we have guarded ourselves from the mischievous consequences of such impressions. In such times, evil-disposed persons will eagerly avail themselves of precedents, which shall not have been discountenanced. Victims will not placate them: they will rather increase the appetite than satiate it. It is, then, of vast importance to set up now, while moral principles are respected, the standard of truth and justice, to which, in future times of trouble and dismay, we may appeal for our defence and safety. With this view the practice of confiscating the property of persons who had committed no known crime must be discountenanced, as incompatible with the 24th article in our declaration of rights, which has been before referred to. That section, the demandant contends, virtually repealed the acts imposing these penalties, and thereby annihilated the jurisdiction of the courts of law arising under them. The people, in the most solemn act of sovereignty they are capable of exercising, have declared these laws to be “ unjust, oppressive, and inconsistent with the fundamental principles of a free government.” And will this Court, in direct opposition to this declaration, still go on executing them ?
    The constitution of the United States has prohibited the several states from making any thing but gold and silver a tender in payment of debts; from passing any ex post facto law, or law impairing the obligation of contracts; and the construction has uniformly been, that all laws then existing, which * militated with this prohibition, were virtually repealed [ * 2&7 ] by it. It is not here contended that prior confiscations were avoided, but only that all further proceedings were prohibited.
    These laws were certainly made to punish for actions done before the laws were passed, and very severe are the punishments inflicted by them, notwithstanding what dropped from one of the Court in the case of Martin vs. The Commonwealth, that confiscation was rather to be considered as the application of the existing laws respecting aliens, than as a punishment of. a crime. The laws might have declared those absentees to be aliens, and forbidden their return, without following the declaration with such severe forfeitures. It is true that, by the common law, upon the conveyance of an estate to an alien, it immediately escheats to the crown. And Dr. Blackstone observes that this seems intended by way of punishment for the alien’s presumption in attempting to acquire any landed property.
    But tne case here was widely different. The demandant’s father was a natural subject of the king of Great Britain from his birth. To that sovereign his allegiance was undeniably once due; and no laws of any country ever yet made a subject’s continuing his allegiance to be treason, which is always a breach or violation of his allegiance. This man certainly never owed allegiance to the state of Massachusetts. When he did what the legislature afterwards saw fit to punish as a crime, there existed no law making his con-, duct criminal, or attaching any forfeitures or disabilities to it. Those acts were in direct contradiction to the sound principle contained in the article of the constitution so often alluded to, and, if that article is allowed its full operation, they were ipso facto annulled and repealed by it. It is worthy of remark here, that the provision i-n the constitution for continuing the laws then in force is expressly confined to such of them as were not repugnant to the rights and liberties contained in the constitution. It seems too plain to require argument to support the position, that if the laws in question were repealed by the adoption of the constif * 298 ] tution, the after * proceedings of the courts under them were entirely null, and may therefore be avoided by plea; and it cannot be necessary to resort to a writ of error.
    The alienage of the demandant seems hardly capable of a distinct consideration. If this confiscation was valid, there is nothing left worth his contending for, although, if he were an alien, it would not follow that his estate was divested, unless an office had been found In the act, in which the demandant’s father is named, the only avowed object was to prevent the return into this state of the persons named. But the counsel for the tenants will have the two statutes taken together, and construed as one. If this is to be the course, it will be remembered that the first act has expressly required an inquest of office, and by its provisions no confiscation is complete until the judgment is executed.
    If the demandant is an alien, it may be asked at what period of his life he became such. He was not so at his birth; he was not so at the time of the descent cast by his father’s death. Although the statute has made his father an alien, it has not made the demandant one. This latter left the country an infant: he had no power to elect to which of the parties he would render his alie glance, for he was under his father’s coercion. He was an infant when his father died. When, then, did he become an alien ? He never perpetrated any of the acts enumerated in the statute. Will his not returning after he came of age constitute him an alien ? He was never required to return, nor has the government ever declared him an alien.
    
      
      
        Plow. 484,213,386.-4 Co. 58. — 1 Wils. 55. — Dyer, 108. - 10 Co. 109. — 2 Black. Com 346, 315.
    
    
      
       2 Vin. Abr.15, Tit. Execution —4 Com. Dig. Execution, A. 1.— Co. Lit. 34, b.
      
    
    
      
       1783, c. 42
    
    
      
       1733, c. 58.
    
    
      
       3 Black. Com. 260.
    
    
      
       1791, c. 13, § 3
    
    
      
       4 Co. 71, Hynde's case.— Cro. Car. 102, Standford vs. Cooper.
      
    
   The cause stood continued for advisement; and now, at this term, the opinion of the Court, (the Chief Justice excepted, who had been of counsel in the action,) was delivered as follows by

Sedgwick, J.

By the agreement of the parties, the circum stances, which took place at the trial, are not, in the view which I have taken of the case, important to be stated; as every fact necessary to a right decision of this case appears in the state of facts. which the parties have agreed upon, that the controversy between them may be finally settled upon principles of law.

* The demandant count's on the seisin of his father, [ * 299 ] Archibald M’Neil, his death, that he is his son and heir, and that the title to the demanded premises descended to him.

On the part of the tenants, it is agreed that Archibald M'Neil, the father, became legally seised in fee of the demanded premises in 1753, and continued so seised until March, 1776; that the demandant is his son, and one of his heirs, as set forth in the count. To stop here, the right of the demandant to recover would be indisputable.

On the part of the demandant, it is agreed that in March, 1776, Archibald M’Neil became an absentee, as described in the act of the 30th of April, 1779; that he never afterwards returned into this state, or into any other of the United States, until after the treaty of peace between the United States and the king of Great Britain; and that he never was, in fact, afterwards an inhabitant of, or resident within, Massachusetts, or any other of the United States, nor ever after he left the country, in the possession of the demanded premises.

It is further agreed that Andrew Black, being duly appointed by the judge of probate, in pursuance of, and in conformity to, the act of 1777, to prevent waste, &c., of the goods or estate of absentees, and for the payment of their just debts, entered into, and took possession of, the demanded premises, as estate left by Archibald M’Neil; and being so in possession, leased the same to Samuel Conant, who, by virtue thereof, continued in possession until the 7th day of September, 1782; that on the day last mentioned, Samuel Henshaw and Samuel Barrett, two of a joint committee of three, appointed by a resolve of the legislature, to sell the estates of conspirators and absentees lying in the county of Suffolk, contracted to sell the same to the said Samuel Conant, and thereupon made, on the same day, a conveyance thereof to him in fee ; that the tenants derive a title from Conant to themselves by several mean conveyances, and that the actual possession has ever been in conformity thereto; that at the Supreme Judicial Court holden at Boston, in the county of Suffolk, which commenced on the 19th day of November, 1782, and continued in session unti. the 7th day of the ensuing December, a regular judg* [*300] ment was rendered *that the demanded premises did, conformably to the act of the 30th of April, 1779, escheat, enure, and accrue, to the government. This judgment has not been reversed; but no writ of possession was ever issued upon it.

The provisional treaty, which is submitted to, and if it was not, it would be the subject of, the consideration of the Court, was signed by the respective plenipotentiaries of the United States and Great Britain on the 30th of November, 1782; by the sixth article of which it was agreed that there should be “ no future confiscations.”

It appears by the agreement that the demandant was born on the I5th of August, 1764; that in March, 1776, being the 12th year of his age, he went with his father, and that he continued with him until his death in July, 1784, that is, until after the ratification of the definitive treaty of peace; and that the demandant did not return to the United States until the year 1789.

There are several facts stated in the agreement, which I have omitted, because they have no influence on the judgment which I shall pronounce.

There are two circumstances, upon which the counsel for the tenants rely.

1. The judgment of the Supreme Court in November, 1782, whereby the demanded premises, conformably to an unrepealed law, were adjudged to escheat, enure, and accrue, to the government of the state. And

2. That the demandant is an alien, and has not a right to support a claim, in a court of justice, for an estate of inheritance.

As to the judgment, there cannot be a doubt but that it must be conclusive against the demandant, provided the objections, which are stated against it, do not prevail.

The first objection against it is, that it was incomplete until it was executed by a writ of possession.

That a man, who has a judgment for possession, may enter without a writ, is common learning, and indeed is not denied. And why should the commonwealth, which cannot be disseised, the whole people, require the aid of an officer to give them actual possession, when it is not necessary in the case of an indi[*301 ] vidual? The highest evidence of title, that *can exist, is the solemn judgment of a court. When, then, this judgment says that the demanded premises, which were the property of Archibald Ml Neil, have been forfeited by him, and have es-cheated, enured, and accrued, to the government, — if this be not evidence that his title was transferred to the government, we must abandon the idea of the absolute verity of judgments.

When the finding of an office is necessary to give validity to a forfeiture, no other act is necessary; as in the case of an alien. He may purchase and hold until office found, and no longer; for thereby the property vests in the government. And so it is, also, in other cases of forfeiture. Now, the judgment in this case must be at least equal to finding an office.

But it is said that the necessity of a writ of habere facias possessionem, to give validity to a judgment, and to put the government in possession, is apparent from this consideration, that the conspirator’s act, which passed on the same day that the absentee act did, declares that the government shall “ be taken, deemed, and adjudged, to be in the real and actual possession of their estate, any thing in the act for confiscating the estate of certain persons commonly called absentees, or any other law, notwithstanding; ” while in the latter act the Court is directed, when judgment shall be given against an absentee, to issue a writ of habere facias possessionem.

I can easily perceive a difference as to the expediency of issuing a writ of possession in the case of an absentee, and omitting to do it in the case of a conspirator. In the former case, one in possession of the estate of an absentee might have no knowledge of a judgment against him; but in the latter, the right of the government was declared by a public law which might be reasonably presumed to be known to every one. In the one case, therefore, it might be convenient that a writ of possession should be issued; while in the other it would be wholly unnecessary and superfluous.

But it is impossible for me to believe that the legislature deliberately intended so to alter the principles of the common law, as to determine that, when the title of the government * was established by a solemn judgment, although there [ * 302 ] could be no opposing of possession, (for the government cannot be disseised,) yet that a writ of possession was necessary to complete the title. If it had been intended, in fact, to deny to the government the exercise of their right to enter into their property, an explicit declaration to that effect, it is reasonable to suppose, would have been, by negative words, inserted in the act.

It is, therefore, our opinion that the issuing of a writ of possession, on such a judgment, was intended as merely mandatory, and not necessary to complete the absolute title of the government.

A further objection is made to this judgment., that, although the term of the court, at which it was rendered, commenced before the date of the provisional treaty of peace, yet it is probable that the judgment was rendered afterwards; and that, in that case, the confiscation law being virtually repealed, there was no foundation on which to rest the judgment.

The provisional treaty was never, I believe, ratified by either the American or the British government; and whether it is of itself a contract binding on the two countries from the date, or at all; or whether it was intended merely as a specification of what should constitute the definitive treaty of peace, and, when inserted therein, was functus officio, and otherwise inoperative, I give no opinion; but, whatever may be the construction in this regard, I cannot entertain a doubt that the judgment, so long as it remains unreversed, is, to all intents and purposes, valid and effectual.

This judgment, as presented to us, is in form perfectly regular. It purports to have been rendered, on a statute of the government, by a court which not only had jurisdiction expressly given by the statute, but jurisdiction paramount to any other court. And the judgment, on the face of it, appears to have been rendered previous to the date of the treaty, by which it is said to have been rendered void; and it has not been reversed by a court of law. The judgment appears to have been rendered on the nineteenth day of November, 1782, and the provisional treaty was dated the thirtieth [ * 303 ] day of the same month. But it is said that, although * the judgment was rendered by the court holden on the 19th day of November, yet it continued to be holden until after the date of the provisional treaty; and that the judgment was, in fact, rendered posterior to that date. And it is further said that, but for the misdirection of the judge, that fact would have been established on the trial.

But we are of opinion that it was not competent to the demand-ant, by such means, to prove the invalidity of the judgment, or that it was void. The tenants produce the judgment of a court of record, as evidence of a fact on which they rely; and at the same time show a statute authorizing that court to render such a judgment. In answer whereto, the demandant says, that he can prove that the statute was repealed at the time the judgment was rendered ; not by the legislature which enacted it, but virtually by a national trea ty ; and not expressly by that, but by necessary implication.

First, then, to obtain the object, an issue of fact is to be tried, to prove that the judgment was not rendered, when it purports to have been ; and if the demandant should be successful in that, the Court is then to proceed to determine that the statute, at the time the judgment was in truth rendered, has been virtually repealed by the treaty. There is no precedent, whereby the force and effect of a judgment have, by such mode, been avoided.

If it be true that the provisional treaty is to be considered as a national contract, binding independent of the definitive treaty ; that it operated a repeal of acts of confiscation ; and that the judgment against Archibald M'Neil was, in truth, rendered after the date of that treaty ; the demandant should have brought his writ of error, established the fact, and the judgment must have been reversed. But I know of no rule of law, by which, on a trial of his right to the land, he can do what is tantamount to a reversal of the judgment, which, admitting its validity, is conclusive against him. There are, it is true, instances in which judgments of court are void, and may be so considered, without reversal; but it is'Only in cases, where, from the judgment itself it is apparent that the court had not any jurisdiction, but had exercised that which belonged to another tribunal. But in this case there *are no cir- [* 304] cumstances by which that principle can be applied.

There is one more objection made, which is, that the acts of con fiscation were virtually repealed by the adoption of the constitution. And to prove this, the 24th article of the declaration of rights was cited in the argument, and, with great force and eloquence, pressed upon the consideration of the court. That article is in these words: “Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the principles of a free government.” It is said that the absentee act was made to punish for actions done before its existence, which had not been declared crimes by preceding laws, and that it is therefore unjust, oppressive, and inconsistent with the fundamental principles of a free government; that those who framed the constitution having declared the law in question to be unjust, oppressive, and hostile to liberty, and the whole people, by their adoption of it, having sanctioned and confirmed this declaration, it operates a virtual repeal; and that it would be absurd, that a law, so opposed to the principles of the constitution, and so pregnant with evil, should be carried into effect by judicial authority.

If it be admitted that the constitution virtually repeals the law in question, it certainly follows that the judgment against Archibald, M’Neil is erroneous, and that it might be reversed; but it does not prove that it is therefore a mere nullity, which can be taken advantage of in this way. This would be inconsistent with all the ideas I have entertained of the solemnity and efficacy of judgments rendered by courts of competent jurisdiction.

But I do not believe that the constitution did, as the demandant’s counsel suppose, virtually repeal the confiscating acts. Whethei these acts were intended to punish those who were the subjects of them, or whether they were political regulations, growing out of the circumstances of the times, and supposed to be authorized by those circumstances, need not now be determined. The restraint which was intended upon the powers of the legislature, by this [ * 305 ] article of the declaration * of rights, could not, I am perfectly satisfied, operate to repeal those laws; but was intended to direct the conduct of the legislature acting under the constitution. The constitution must be construed according to the intention of those who framed, and those who ratified it; and I believe I may safely affirm, that it never entered into the mind of an individual, at the time, that conspirators and absentees were to derive from the constitution an exemption from the pains and forfeitures which had been prescribed against them.

As we think the judgment, in this case, is conclusive against the right of the demandant, it has become unnecessary to proceed and consider, whether, by the facts disclosed, it appears that he is an alien, or whether, if so, his alienage might have been pleaded in bar, or given in evidence under the general issue. Upon these points we give no opinion. Being satisfied that the judgment of the court is in force, and that, so long as it continues in force, it is conclusive evidence against the right claimed by the demandant; he is not by law authorized to disturb the possession of the tenants, whether that possession, in its original commencement, was attended by a lawful title or not. Judgment must be entered, for the tenants. 
      
      
        Co. Lit. 2, b.
     
      
      
        Plowd. 229, 230. 484. — 3 Rep. 10.
     