But even this exercise of the dominium eminens is restricted, and it must be a purchase "by the consent of the "legislature of the state, in which the same shall be, that "forts, magazines, arsenals, dock yards, and other needful "buildings shall be erected." A purchase implies consideration. The taking private property for the purpose of increasing public funds was never thought of, though doubtless it must be said not to be included in the prohibition. But it will be said, the general government is charged with the raising and supporting armies, and with providing and maintaining a navy, and in doing this debts must be incurred. But by article 1. sect. 8. the congress are empowered to lay and collect taxes, duties, imposts, and excises, to pay the debts. Is any thing more than this necessary to pay debts? It will be alleged, and would seem to be implied by this act of March 3d 1797, that it is necessary to go farther. The congress that enacted it have doubtless thought so. But had they a right to think so, at least to enact it? Was it necessary to go that length as to the recovery of debts that might be due? When the general government has any thing to dispose of, it can have the quid pro quo paid down before it parts with the property. If a trust is given in receiving dues, there is no scarcity of persons offering to accept an office, and security can be obtained, even if the persons offering are not of themselves of great estate, so as to secure against a delinquency; so that in the original contract to perform any thing, the public have all the means of securing themselves that an individual has, and why should it want more? An honest individual has his debts to pay too, and why take from him the means, by taking away the debt that is due to him, or lessening it, by the United States paying themselves the whole of their debt in the first instance? Had the act gone no further, than that in case of credit given to a revenue officer, after becoming such, the debt should be postponed to that of the public, there would be less to be said. I should have no objection to the having it understood, that on credit given to a revenue officer or other public agent, it should be at the risk of the person giving the credit. This might be all fair, there would be notice. He gave the credit with his eyes open, and at his own risk. I might perhaps submit to the same law VOL. VI. 2 N 1814. COMMON WEALTH υ. LEWIS. WEALTH V. LEWIS. 1814. with regard to a credit given after suit brought, against any COMMON- person not a revenue officer, because in this case there would be a kind of notice of which the law speaks, a constructive notice. There would be something to save appearances in this, and it would not be just so barefaced as it stands under the act of March 3d 1797; that is, that the appointment of a revenue officer, or the contracting by the public with any person, should immediately make him a new man, and wipe away all antecedent scores, so far at least as to let in public claims, subsequently arising, to be first paid. For it is in the act of congress, "other persons becoming indebted;" and hence it is, that though an individual might guard against crediting a public officer after notice of his being such, yet it would be impossible to anticipate the will of congress in creating an agency, or the president in appointing to that trust. Even such a constructive notice from a suit brought by the United States, would work sufficient hardship, from the difficulty of obtaining actual knowledge by inspecting dockets at a great distance. When any individual of the community, offers to contract and take credit, there is no putting him to his oath, whether he owes any thing to the public, or whether a suit has been brought against him. But if he was put to his oath, it is not what he owes, but what he might come to owe, or have a suit brought against him for, that is to be considered. The person crediting might demand security from the person credited, that he never would owe any thing, or have a suit brought against him. In the nature of the case this is all that could be done.: But it will be said the wisdom of the great council of the nation has enacted the law, and the presumption is, that it is constitutional. I grant the presumption does arise; but it is weakened not a little, when the nature of a representative government is taken into view. The representative to keep his place must preserve his popularity, and all is odious that sounds in tax. Whatever therefore will be in ease of a direct application to the pockets of the whole, there is a temptation to adopt; so that it is not altogether the wisdom or justice of public measures, but the self preservation of the representative, that is in question, when a vote is given. But the judiciary are the guardians of the constitution, and it is a presumption in favour of the law that they have not questioned it. It is doubtless the presumption, but it is not conclusive. And having a right to question it, and my reason so directing, I must bear testimony against it. Doubtless such protest cannot carry great weight with it, but it may weigh, and in due time work to some effect. However humble the source from which reason may come, it may ultimately be heard and prevail. 1814. COMMON WEALTH υ. LEWIS. THE Philadelphia, If the husband has access to his wife, no evidence he short of his absolute impotence trial, can bastardize the issue; but if they live at a distance from each other, year so that access is after very improbable, the question of had legitimacy may consideration of stances. 'HE defendant was indicted for fornication with one Sarah Myers, and begetting a bastard child on her body; and upon the trial before Yeates J. in July last, was convicted. The defendant now moved for a new and his honour reported that the case was as follows: Sarah Myers the prosecutrix was married in the 1801. She lived with her husband two or three years the marriage, when he went off to New York where he resided ever since. Her father James Humphreys took her be decided on a back to his own house in Kensington, and she had uniform- all the circumly dwelt under his roof, except during three short intervals, Upon an indietin the latter end of 1811, and the following spring, when ment for fornication and bastardy, she was absent from her father's house about three months, a married woman is a competent engaged as a nurse at different places. Upon these occasions the defendant frequented her company, was with her late at night when the families had gone to bed, and once was with her all night. Her husband on the 17th of March came to her father's house and supped, but did not there. Since that time he had not been known to the company of his wife either at her father's house or answer to which elsewhere; but one witness swore that he saw Myers in the non-access may be Philadelphia market on the 10th of June 1812, and he was seen in the same place about a month before, and also in the spring of 1811. The prosecutrix having been called, swore that she was the jury that they delivered of a male child on the 24th of December 1812, sider any thing witness to prove nexion with her. The wife cannot prove the nonaccess of the hussleep band; but if the Court permit her the criminal con 1805, be in to be asked a question from the inferred, as "how long it was "since she had were not to con which fell from the wife as evidence of non-access, the verdict cannot be disturbed on account of the question. 1814. WEALTH V. SHEPHERD. that the defendant promised to marry her, had frequent criminal connexion with her, and was the father of the child.~* It had not appeared when she gave this evidence, that she had ever been married. The defendant's counsel put that question to her on the cross examination, and she answered that she was married about Christmas 1801, but that she did not know whether her husband was dead or not. The counsel for the prosecution then asked, when she last saw her husband. The defendant's counsel objected, and after a long discussion the judge overruled the objection, and she answered that she had not seen him for eight years. ⠀⠀ In his charge to the jury, Yeates J. said, that if upon a consideration of all the evidence, they should be of opinion that the husband had not had access to his wife, and that the child was really begotten by the defendant, they might find him guilty of both fornication and bastardy; but that they were not to consider any thing which fell from Sarah Myers as evidence of non-access. Browne for the defendant. 1. The verdict was against law and evidence. The husband had been seen in Philadelphia, several times after he removed to New York, and particularly in May and June 1812; and no evidence was given to shew that he was in New York at the time when the child was begotten. Access was to be presumed, until the contrary was shewn. Although the rule of the four seas is exploded, yet it is still the law that if the husband is in the same place with his wife, the issue shall be bastardized only by proof of his impotence. It is not necessary that he should be in her company. Access does not mean connexion, but liberty to have connexion. Lomax v. Holmden (a), is in point. 1 Bac. Ab. 311. Bast. A., 1 Botts Poor L. 396. 397., 1 Tucker's Black. 457., Rex v. Reading (b), 1 Domat 622. It was the duty of the prosecution to rebut the presumption of access, by proof of non-access, and so should the judge have charged; whereas from his charge to the jury, they must have understood that there was no such presumption in favor of access. St. George v. St. Margaret (c). Peake's Ev. 420. (a) 2 Stra. 940. (b) Hardw. ca. 79. (73). (c) 1 Salk. 123. 2. Illegal evidence was admitted. It is perfectly settled that the wife cannot prove the non-access; and yet the answer to the question went to shew non-access; for it is a mere play upon words, to say that a wife may not see her husband, and yet he may have access to her. The effect of this answer remained, notwithstanding what the judge said in his charge, and we are entitled to go to a jury who shall not hear that question or the answer. The wife herself was not a competent witness to the bastardy; she has no right to release her husband from the responsibility of maintaining her issue, nor to affect his reputation by her testimony. The act of 1705 applies only to cases of single and unmarried women; this case stands at common law. Drowne v. Stimpson (a) is a strong authority. Ewing for the prosecution. 1. The law is now settled that access or non-access may be proved by circumstances. Pendrell v. Pendrell (b). It was therefore properly stated to the jury; and no one can doubt from the evidence, that their inference from it was right. 2. The question was put to the witness, after she had been asked if she had been married, and she had answered that she did not know whether her husband was dead or alive. It went to corroborate this statement. But if it was improper because it tended to shew non-access, that tendency was counteracted by the charge. The wife is a good witness to prove the connexion, ex necessitate; but the non-access must be shewn by other witnesses. This is the result of all the cases. 1 Botts 455. pl. 600. Rex v. Reading (c), 1 Botts 462. pl. 607. 397. pl. 593. 452. pl. 593. The exception to her testimony is now too late, it should have been taken at the trial before the verdict was brought in. Hecker v. Farret (c). TILGHMAN C. J. This is a motion for a new trial by William Shepherd, who has been convicted of fornication with Sarah Myers, and begetting a bastard child on her body. The reasons assigned are, that the judge who tried the cause admitted improper evidence, and erred in his 1814. COMMON WEALTH SHEPHERD. |