
    Mary Wells, widow and relict of Robert Wells, deceased, against Thomas Martin.
    
      Charleston,
    
    
      Feb. 1796.
    The widow of wa™ hanisiled state, fand vas°S confi ate tt‘<1 act 01 1/82, for adhering to the British in the course of tionarv^ wm-itandh'feñ-titled to her dower in all his lauds, &c.
    UPON application to the court for a writ, for the ad-measurement of dower, pursuant to the directions of the act of the legislature.
    The present was an application on the part of Mrs. Wells, the widow of Robert Wells, formerly a bookseller and stationer in the city of Charleston, for her dower in sundry , . , r , , . , r , . 1 houses m town, and tracts ox land m the county, or which her husband was seised and possessed in his life-time, and durinS her coverture.
    It was admitted, that Mr. Wells in his life-time had joined the British standard, during the revolutionary war, and had adhered to the enemies of America ; in consequence of which his person ivas banished from the state, and his estate- confiscated by an act of the legislature ; and that Mr. Martin, the defendant, had purchased one of the lots of land, which formerly belonged to him in Charleston. He, therefore, disputed her claim of dower in the house and lot he purchased, which brought the question fully before the court, whether, under these circumstances, she was entitled to her dower or not ?
    The case was very fully argued by Mr. Edward Rat-ledge, on behalf of the demandant, and by Desaussure, Ford 
      and Johnson, on the part of Mr. Martin, or rather on behalf of the state, which had guarantied Mr. Martinis title.
    x0 forfeiture ^’|(]^*' fi10 convicted and judgment pro-nouuccd against him. Then and not becomes’at-° worfidthcfor-iulture-
    
      37s,
    
    In the course of these arguments, almost all the old doctrines of forfeitures and attainders for treason and rebellion, were fully gone into and investigated on both sides; but as they were very long and uninteresting, (at the present day,) they are not incorporated into the report of this case, and the more especially, as not only the constitution of the United States, but the constitution of this state, and those of all the other states in the union, have forever excluded the idea of bills of attainder, or ex post facto laws ; as utterly inconsistent with the principles of public justice, and the rights of innocent unoffending individuals. For these reasons, the opinion of the court only is subjoined, which was delivered by Mr. Justice Burke, to the following effect:
    That the judges had considered the question, and were unanimous in opinion, that Mrs. Wells was not deprived of her right to dower, either by the common law, or by the act of confiscation. By the common law there was no forfeiture for treason, till after trial and conviction, and the judgment of the court pronounced against the offender. It was one of the consequences which resulted to the crown . from such conviction and judgment ; but until that took , . ... 1 . • I , . place, and was recorded, the crown had no right; but, when judgment of death, or sentence was once pronounced against the offender, the immediate consequence by the common law, was attainder: he became attaint, or in other words, put out of the protection of the law. The further consequences of attainder were forfeiture and corruption of blood, by which a man forfeits to the king, all his lands and tenements, which for ever afterwards become vested in the crown.
    That the common law was of force in South Carolina, and formed by far the greatest and most important part of her system of jurisprudence.
    
      SeeMrs .Mon-gin’s oa-i*. in <lowcr- Jiay’s Jiep. vol. 1. p. 73- .Riley’s edit.
    That Mr. Wells had never been called upon to answer for the offence of treason, in any court of competent jurisdiction, consequently there never was any conviction or judgment for that offence against him. He never became attainted, so as to incur the penalty of forfeiture of his lands to the state, agreeable to the rules of the common law. It was clear, therefore, that his widow’s claim of dower remained unimpeached at common law.
    That the statute regulations of the state, were properly to be considered only as supplementary to the common law, which was not to be altered by construction or implication, but by express terms. There was nothing, however, in the act of confiscation (severe as it was) which amounted to an attainder, or which expressly altered the common law in this particular. There was nothing in the act, which declared Mr. Wells guilty of treason or rebellion against the state. His name, to be sure, is on the list No. 1. annexed to the act; the preamble of which recites, “ that it would be impolitic and unwise to afford protection to those persons,” &c. and then it goes on and declares them for ever banished from the state, and their estates confiscated to the public, &c. And although the act vested his estate in the public, and authorized commissioners to dispose of the same, yet there is a clause reserving the rights of individuals, having any prior claims ; as judgments, mortgages, marriage settlements, and the like, &c. The right of dower, it is true, is not mentioned in this proviso in the act, but then it is a common law right, which has a preference to judgments, mortgages, or any other incumbrances made or suffered by the husband in his life-time. It is paramount to all the other kinds, of what nature soever they might be, and it is given not by the act or curtesy of the husband, but by operation of law ; it is a claim of the highest nature known in law, and one which the courts of justice have ever held sacred. He then mentioned the case of Mrs. Mongin, brought up from Beaufort district, in the year 17.89, whose husband had been put on the confiscation list in the same manner as Mr. Wells, in which it was determined by Grimke, Waties and Drayton, then present, that the right of dower was a common law right, which the widow was entitled to, and which was in no wise impeached by the confiscation act.
    Same point decided in the state of JSfew-YorJc. Johnson’s Cases, yoU 1. p. Q7.
    
   It was therefore ordered, that a writ for the admeasurement of dower in the premises in question, should issue to commissioners, pursuant to the directions of the act, See.

Present, Burke, Grimke and Bay.  