Kempe Lessee v. Kennedy Et Al

• Citation: 9 U.S. 173,5 Cranch 173,3 L.Ed. 70
• Parties: KEMPE'S LESSEE v. KENNEDY ET AL
• Decision Date: 01 February 1809
• Court: United States Supreme Court

9 U.S. 173 5 Cranch 173 3 L.Ed. 70 KEMPE'S LESSEE v. KENNEDY ET AL. February Term, 1809

ERROR to the circuit court of the district of New-Jersey, in an action of ejectment brought by John Den, lessee of Grace Kempe, a British subject, against R. Kennedy and M. Cowell, citizens of the state of New-Jersey, for land in that state.

Upon the trial of the cause upon the general issue, a bill of exceptions was taken by the plaintiff, which presents the following case:

Grace Coxe, the lessor of the plaintiff, being seised in fee of the land in question, before the year 1772 intermarried with John Tabor Kempe, who died in August, 1792. They resided in New-York before and during the war with Great Britain, and vent to Great Britain when New-York was evacuated

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by the British army. Grace Kempe, since the death of her husband, has continued to reside, and now resides, in Great Britain, where he died; having been in possession of the land in right of his wife, on the first of March, 1776, and until the same was seized by the authority of the state of New-Jersey.

The defendants relied upon several acts of the legislature of New-Jersey; an inquisition taken under the authority of those acts; a judgment of the inferior court of common pleas for the county of Hunterdon, in May, 1779, upon that inquisition, confiscating the estate; a judgment of the inferior court of common pleas for the county of Sussex; an execution upon that judgment; and a deed from Joseph Gaston, an agent for the state of New-Jersey, to the defendant Kennedy, whose tenant the other defendant was; and proved, that he had always been in possession under that deed from the day of its date, to the day of trial.

Upon this case the plaintiff prayed the court to instruct the jury that they ought to find a verdict for him; which the court refused, and directed the jury that they ought to find a verdict for the defendants; to which refusal and direction the plaintiff excepted, and brought his writ of error.

R. Stockton, for plaintiff in error.

This case turns on the validity of the forfeiture and confiscation under the acts of the state of New-Jersey.

The great objection is, that Mrs. Kempe was not an object of those laws.

The whole question depends upon the act of the 11th of December, 1778, entitled 'An act for forfeiting to, and vesting in, the state of New-Jersey, the real estates of certain fugitives and offenders, and for directing the mode of determining and satisfying the lawful debts and demands which may

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be due from, or made against, such fugitives and offenders, and for other purposes therein mentioned;' by the 3d section of which it is enacted, 'that each and every, person, not an inhabitant of this state, but of some of the other United States, and seised or possessed of, interested in, or entitled unto, any estate, real or personal, within this state, who hath, since the 19th day of April, 1775, aided or assisted, or doth now, or hereafter may, aid or assist the enemies of this state, or of the United States, by joining their armies within this state, or elsewhere, or who already hath, or hereafter shall have, voluntarily gone to, taken refuge or continued with, or endeavoured to continue with, the enemy aforesaid, and aid them by counsel, or otherwise, shall be, and is hereby declared to be, guilty of high treason against this state; and on conviction thereof by inquisition found, and final judgment entered thereon in favour of the state, in manner herein after declared, such conviction shall amount to a full and absolute forfeiture of such offender's estate, both real and personal whatsoever, within this state, to and for the use of the same. Provided always, that such conviction shall not in any instance extend to affect the person of any such offender, but shall operate against his or her estate only.'

Mrs. Kempe does not come within any of the descriptions of offenders in this section.

The inquisition charges, that Kempe and wife are offenders against the act of 11th of December, 1778, in this, 'that the said John Tabor Kempe and Grace his wife, did go to the enemy, and took refuge with them some time in April, 1776, and still remain with them,' 'against the form of their allegiance to this state.'

The truth of the fact is, that they did not go to the enemy, but remained at their own homes, and the enemy came to them.

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But take the fact as charged; she and her husband, i. e. she in company will her husband; and legally, by the command and control of her husband, in April, 1776, went to the British and remained with them.

This is a joint charge for a joint act of the husband and wife; and is in the technical language always used when the wife is charged with concurring in the act of the husband.

Here then is a feme covert charged under this section for accompanying her baron in April, 1776, before any government was established, before any law defining treason, and even before New-Jersey had formed her constitution, and before any prohibition of the act done by her. She...