
    Mongin and Wife, late Pendarvis, against Baker and Stevens.
    The comí will never give so harsh a construction to the confis-?ati°n as to deprive a person of a common law right; therefore, the widow of a person placed on the confiscation list, is entitled to her dower.
    UPON a motion and application for a writ of dower, at Beaufort, in the April session of 1789, the following special case was reserved to be argued at bar in Charleston.
    
    Some time previous to the year 1/82, Richard Pendarvis 1 intermarried with Mrs. Mongin, the present plaintiff’s wife ; and they lived and cohabited together till Pendant* died. By the Jacksonborough
      assembly of 1782, the heirs and devisees of Pendarvis were placed on the confiscation list; and since the peace, part of his estate was sold by the commissioners of confiscated estates, to Stevens, one of the defendants; and the residue, by an act passed in 1784, was restored to Baker, the other defendant. The question, therefore, was, whether the plaintiff’s wife was entitled to dower in her former husband’s estate, or not ?
    Desaussure, in support of the application,
    contended, that the common law right of Mrs. Mongin became complete by the death of Pendarvis, her former husband, without any judgment or treason against him. 2 Black. 129, 30. It could not be taken away from her, but by some act of hers, amounting to forfeiture : or by some law, which, disregarding private rights, had disfranchised or divested her of this estate. In the present case, it was not pretended she had committed any act which forfeited her claim of dower. Innocent, thei-efore, herself, her right must remain unimpeached, unless some law deprived her of it. The only act or law in being, which can possibly affect the claim, is the confiscation act of 1782. By a clause in this act, the estate of the heirs and devisees of Pendarvis is confiscated. What was this estate ? A fee-simple — liable to all incum-brances and charges. One of the first and highest of these, in the eye of the Jaw, is a widow’s claim for dower. It is preferable in law to mortgages and judgments. The state could not acquire any greater or higher estate in the lands in question, than the heirs and devisees of the deceased would have had. And if it had gone over to them, would it not have been chargeable with the widow’s dower ? Most certainly it would. With what apparent justice then, can the state be supposed to acquire a greater right than the heirs and devisees would have done. If such a doctrine were once admitted, it would in fact be saying, that a body politic or corporate has greater rights than an individual citizen. Her right, however, is not inconsistent with the confiscation act. This act enables the commissioners to sell so much as is confiscated ; that is, so much as the state acquired, which only reaches the estate of the heirs and de-sasees. They held one estate ; she another. The act expressly reaches their estate, but does not in the smallest degree, attach itself upon tier’s. He quoted 2 Black. Com» to shew that different persons may hold different estates' in. the same land. Also, Id. 199. From whence he argued, that the omission of her estate in' the lands in question, proved, that the legislature never intended to extend thio heavy penalty to the widow.
    He next contended that common law rights were sacred in their nature, and not to be set aside lightly, by intendment or implication. On the contrary, that acts of attainder were generally looked upon with a jealous eye. They were highly penal, and for that reason it was a well known, rale, that all penal statutes were to be construed strictly. 1 .Black, Com. 87, 88, 89.
    It might be urged, he said, that the confiscation act-amounted to a bill of attainder against Pendarvis ; that it was tantamount to a conviction and judgment for treason at common law, which amounted to a forfeiture of the widow’s claim of dower. But this he denied. At common law, it is true, that a conviction and judgment of treason works a forfeiture of dower, (2 Black. Com. 136.) but none such was pretended in this case. Pendarvis was never called, upon to answer in his life-time; nor was any judgment of treason ever entered up against him. As to the terms of the act itself, there was nothing in it which would amount to aii attainder, unless it was by a forced construction, n© wise consistent with the humane principles of our constitution. Constructive treasons and attainders, are the-most dangerous, the most'pernicious doctrines ever introduced among mankind ; fit, perhaps, for a star chamber, but not for a country which boasts of civil liberty. The confisca» tion law, he granted, did punish certain classes of political offenders, for certain offences, (in maiiy instances not capiul by the then existing laws,) by confiscation of their property, and banishment of their persons ; which, notwithstanding it was highly penal, did not amount to an at» tainder, either expressly, or by operation of law. And to give it a contrary construction, would be stretching the penal system to an extent not authorised by the principles cf our government, or the spirit of our criminal jurisprudence. Our courts of justice, surely, would not be fond of making implied attainders. The doctrine of attainders and forfeitures, he said, was losing ground daily. It was considered as a barbarous and odious policy, which took its origin in the'times of feudal rigour. It first was punishing a man without giving him a trial or a hearing in his own defence, and then extending the punishment, which was due to the guilty only, to innocent persons, who could not possibly be concerned in the offence. For these reasons, the best informed writers of the present age had exerted their talents to place, in proper colours, the injustice and iniquity of such a system. He was happy to say that they had succeeded greatly in their endeavours, to enlighten legislators and statesmen on the subject, and consequently to mitigate the evils which had been brought upon so many nations by an adherence to it; and he hoped that the day was not far distant, when the good sense and liberality of the people of America would abolish it entirely.
    
    
      Moultrie, attorney-general, against the motion.
    By the common law, the widow of a person attainted of treason forfeits her right of dower ; and the reason of the thing speaks in support of the principle. For the'common law goes upon the idea, that husbands are oftentimes influenced and governed by the sentiments and conduct of their wives. If, therefore, they do not exert this influence, by example and dissuasion, they are considered in the law, as having incurred such a degree of guilt, as to forfeit every right or claim under their husbands. It is true, that Pendan is has not been convicted agreeable to the tules of the common law; and that there is no act in force which can affect her claim to dower, except the confiscation act passed in 1782. The policy of this law, he said, had been frequently called in question on other occasions, as well as on the present. He was no friend to acts of attainder in general, as they had given rise to shameful abuses and cruel extortions in other countries; and the influence of them had been felt by innocent descendants, long after the causes had ceased which gave rise to them. But in this country, he did not think that the one under consideration was founded on that barbarous system of extortion or persecution, which had been so often attributed to it. There were times and circumstances when such a measure was not only necessary, but perfectly justifiable. Such a period once existed in South-Carolina. It was well known, that in 1782, nearly all the coin in America had been drained out of it. In the public-treasury there was none. The paper currencies, which had served to bear up the people for several years, under the pressure of the war, had ceased any longer to have a value. At the same time, a formidable army of the enemy were ravaging and laying waste the country. In this situation, without resources to raise men, or carry on military operations to check their career, what was to be done ? To procure the means was the object, and the statesmen who regulated the public concerns at that day, saw the property of a very numerous class of the community protected, who had relinquished the defence of their country; many of whom had either taken up arms against it, or were aiding the enemy with their advice and counsel. It naturally occurred to them, that these men had forfeited every claim to the protection of the state, and every right of property they held under it. The precedent and example of other nations •sanctioned the measure, and necessity justified it.
    With regard to the legal effects and operation of the law, it is an act of attainder to all intents and purposes. The persons mentioned in the act had been guilty of treason, The offenders, however, were out of the reach of justice, and there was no possibility of bringing them to condign punishment. The act, therefore, extended the consequences of the offence to the only thing within their reach, to wit, their property, which very properly became a forfeiture to the state. In the confiscation act, there is no exception as to the claim of dower. If it had been the intention of the legislature, that it should have been saved to the widows of the persons mentioned in the act, it would have been expressly mentioned. In various acts of parliament defining treasons, and creating new felonies, (1 Edw. VI c. 12. S Edw. VI. 5 Eliz. c. 14.) there are express reservations of dower to the widow, which confirms the doctrine, that unless there is an express reservation of the right, it is merged in the husband’s forfeiture. In the 17th section of this act, there is a provision made for the wives and children of the persons therein mentioned, which is another corroborative proof that the reservation of dower was never in the contemplation of the legislature. Besides, the inconveniences would be great, were such a claim once admitted : for the state had warranted the titles to purchasers, against all claims and demands whatsoever. If, therefore, the door was opened, it would be productive of endless demands against the state, to malee compensation for claims of this kind. It was the policy of the law to quiet possessions, and not to permit them to be called in question, after so great a length of possession by peaceable proprietors.
    
      Gaillard, in reply,
    arraigned in a very animated manner, the policy of this act, as against justice and natural right, and contended, that as there had been no conviction of Pendar-vis for treason, no forced construction could be given to the act, so as to effect the claim for dower. That the whole of the attorney-general’s arguments rested upon the supposed intention of the legislature, which was not warranted by the terms of the law itself, as not one clause in it related in. the smallest degree to the claim of dower. That this was a common law right. It was one of the most important which that ancient law secured to the female sex. Our forefathers had always respected it, and in their excess of caution expressly reserved it, when new felonies were created, though unnecessary; for it is a maxim of law, that the common law shall never be altered, by implication or intendment. And if the spirit of a former century could support this claim of dower, he hoped that we, their descendants, more enlightened than they were, would not be less careful in preserving the right.
    
      Holmes, contra,
    admitted, that there was no express words in the confiscation act, which took away the claim of dower from the widows of the persons mentioned in the act; but contended, it was a fair inference or deduction from the whole scope and tenor of the act. The offence of treason, which was the offence the act intended to punish, wrought a ‘forfeiture of dower; and when the offence was once declared by law, it was tantamount to a conviction, and all the consequences followed after. The intention of the legislature was, to transfer the property completely from the offender, and all claiming under him, to the state, exonerated from every charge, except bona fide creditors, and to that end a clause was inserted, which says, “ The act shall be construed liberally, for effectuating the purposes in the bill,” and the construction which this clause had in view, was such a one as would deprive the offenders, and all under them for ever, of the estate in question.
    Cur. adv. vult.
    
    And now, on the adjournment day of May term, 1789, all the judges present,
    
      
       The village where the confiscation law was passed.
    
    
      
       These sentiments have very generally prevailed throughout America, for by the 3d article of the constitution of the United States, it is declared, “ that no attainder of treason shall work a corruption of blood, or forfeiture, except during the life of the person attainted.” And the 2d section of the Oth article of our state constitution, adopted in 1790, says, “ that no bill of “ attainder, ex post facto law, or law impairing the obligation of contracts, ■" shall ever be passed by the legislature of this state.”
    
    
      
       Stat. 1 Edw. YX. ch. 12. 5 Edw. \X. S Eliz. oil. 14.
    
   The Court

were unanimously of opinion, that as there had been no conviction of Pendarvis for treason, in his life-time, there was consequently no forfeiture of dower at common law- And with regard to the confiscation act, there is no express attainder or declaration, that he had been guilty oftreason, or any express words which can affect his widow’s dower* The maxim, that penal laws are to be construed strictly, is a wise one. The court is not bound to give, nor will they ever give such- a harsh construction to the act, as to deprive a widow of a common law right, when the act itself is silent upon the subject.

Let the writ of dower therefore issue* 
      
       In the ease of Mrs. Wells, who made a similar claim of dower, it was admitted, after full argument, although her husband had been banished for treason, and his estate confiscated. See 2d vol. page , so that the law on this subject may he considered as settled.
     