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1797, though they were entitled to it under the act of 1715. If connexion was intended by the legislature, then this exclusion was intended, but if the exclusion was not intended, then neither was connexion; that when the doctrine of connexion was first countenanced by judicial allowance, a chain of legal conveyances was deemed requisite; that the consequences were soon perceived, and their pernicious operations were acknowledged by the attempt to confine them, by the addition of 'equitable estates,' to assist in forming the chain-the remedy was but partial, and a new one was added under the name of 'apparent equities,' and still it fell short of the evils to be remedied; that it is not pretended these equitable estates and apparent equities make the legal title more perfect, and therefore they must be admitted for some other purpose, that is, to make the possessor have color of title, in other words, not to be a trespasser known to himself to be so. If he enters into possession under a covenant or written unsealed contract, or verbal agreement to pay for the lands, (?) his possession will be available, though he has no deed as the act requires. But an equity or apparent equity cannot be ripened into a legal estate by the statute, and being thus incapable of curing the evils they were meant to redress, should be laid entirely aside; that under the operation of the rule of connexion, the longer one remains in possession, the more danger there is to his title. The intermediate evidences of title are more liable to be lost in the lapse of a hundred years than of seven, and if any of them, by the burning of public offices, or of private houses, by the intrusions and devastations of war, or other natural or general calamity, be lost, so that the chain is broken, the title is gone, if connexion be indispensable; that if the legislature has really informed us by the words, or deed of conveyance founded upon a grant,' that no other evidence but a grant or a deed of conveyance connected with it, shall be allowed to prove a color of title, how is it that an equitable estate or an apparent equity proved by unsealed writing or parol, can be received in its place? Either it is not true that a connexion is the only allowable medium of proving the innocence of possession, or it cannot be true that the substituted evidence of equitable titles and apparent equities can be proper. Reject the latter and the consequences of connexion are too intolerable to be borne, and connexion must be removed; that taking into view the numerous and immense mis

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chiefs which ensue upon the doctrine of connexion, and the little good, if any, to be derived from it, the tribunals of the country should not adopt it, unless by the express direction of the legislature; that the words, deed of conveyance founded on a grant,' have not necessarily this meaning and no other, if they have it at all; for on the construction of the third section of the act of 1797, which provides that if any grantee or other person claiming by deed of conveyance founded on a grant, be turned out of possession by law, he shall recover the value of his improvements, it was never deemed requisite for the evicted tenant to show a connexion from the grantee to himself. If the law be not so construed, then in every case where there is but one grantee, there can be no satisfaction for improvements; for if there be a connexion between the possessor and grantee, the latter cannot recover at all. (?) And if the evicted tenant can recover at all, it must be because he cannot establish a connexion, but only a deed, and nothing more. Connexion cannot be required without rejecting this whole clause, so far as regards occupation under deeds where there is but one grantee. And as most manifestly this could not have been the will of the legislature, it is demonstrably true, that the term founded upon a grant,' does not here mean connexion. And it being a rule of construction that the same words used in different parts of a statute, are to receive the same interpretation, it is through this medium demonstrable, that the words 'founded upon a grant,' in section fourth, must be understood to signify a deed without connexion;' that after all the emendations that can be superadded to the rule that requires connexion to prove the innocence of possession, many cases would remain uncomprehended, which were within the act of 1715; that a rule so inflexible in the wrongful exclusion of meritorious claimants, so unjust in its operation towards them, so unfriendly to the spirit and genius of the act of 1797, so uncongenial with the public repose, which this act meant the better to secure, seemed to them opposed by all the considerations which combined in making the law; and finally, under these views, it could not be the duty of the judges, on account of any judgments already pronounced, to adhere to the rule of connexion. (a)

In estimating the merits of these controversies, the observa

(a) Peck's R. 230.

tion forces itself upon the mind, that the abstract utility of any rule of judicial establishment, cannot compensate for the exercise of a power or establishing of it, not within judicial competency. This observation is, however, more applicable to the dispute respecting the construction of the act of 1715, than of 1797. For though the words of the latter act, 'founded upon a grant,' seem sufficiently explicit, and, as Chief Justice Marshall observed, 'too important to be disregarded,' yet perhaps they do not necessarily imply connexion. Abstractly considered, if the law place the possessor's right to prescribe on the fairness of his original acquisition, it would be competent for him to produce any proof of that fact whatever, that would satisfy the mind of the triers. The question for the triers would be,-Is the proof satisfactory?' not, 'Is the proof of this or that species? Now the act of 1797 does place the right to prescribe upon the fairness of the possessor's acquisition. Very clear and unequivocal language, therefore, should have been employed to authorize the courts to restrict the possessor to one species of evidence alone. The question is, 'Do the words, "a grant or deed of conveyance founded upon a grant," restrict the possessor, in proving the fairness of his possession, to the production of a grant, or a deed from the grantee or some of his regular conveyers? Perhaps it would be difficult to produce an instance of the use of the word 'founded,' in which there is not an inseparable connexion between the subject of which it is predicated and the thing upon which that subject is said to be founded. Thus, the credential by which a man rightfully claims a seat in a legislative body is founded on an election of the people, and there is an inseparable connexion between it and the exercise of the elective franchise. There is a supposed inseparable connexion between an hypothesis and the observations or experiments upon which it is founded. A verdict is founded upon the law and evidence, and there ought to be the utmost connexion between them. In short, 'whatever is founded requires and has the utmost support.'(a) But legislative acts are not always to be construed with strict grammatical and logical accuracy. If they were, strange consequences would sometimes ensue. In short, it is not improbable, from the use of the same terms in the third section of the act of 1797, in a

(a) Crabb's Synonimes.

way which shows the legislature had not connexion in view, that they did not use it in the fourth section to convey that idea. And if the word founded is not univocal, the judges are not to blame, who gave it the interpretation that best accords with the spirit of the law in which it is found.

But those who advocated the perpetuity of the bar under the act of 1715 had, it would seem, no other foundation for their doctrine, than its supposed superior suitableness to the condition of society. This is a good motive for legislative action, but for judicial, in one case only, and that is, when the law to be administered is vague and stands in need of interpretation. But the language of the act of 1715 was not ambiguous, or if it were, its import had been well ascertained in the construction of the statute of 21 James I. c. 16, and was never doubted in North Carolina for a long time after its passage. When the judges undertook, therefore, to give it a new direction more conformable to the wants of society, they took a ground appropriated to another department of the government. But since the cause of complaint on this score, was removed in Tennessee by the act of 1797, which permitted the lapse of time to benefit rightful possessors only, it is gratifying to find that the wisdom of the Romans founded the law of usucapion and prescription upon the same principle. We recognise a strong similarity between the language of the advocates of color of title, and the following provisions of the Roman law.

'By the civil law, whoever had fairly obtained a thing from one whom he supposed the true owner, although in reality he was not, and if of a movable, had possessed it bona fide for one year either in Italy or the provinces; or if immovable, for two years within the limits of Italy, should prescribe to such thing by use: and this was held to be law, lest the dominion of property of things, should be uncertain.' Justinian raised the time to three years for movables, and for immovables to ten years if the parties were present (i. e. in the province,) and twenty years, if either of them were absent. Again no prescription lies for things that have been stolen, or seized by violence; although they have been possessed bona fide, during the length of time required by our constitutions for prescription to things stolen is prohibited by a law of the twelve tables (a), and by the law Atinia;(b) and

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(a) Tab. 2. L. 9.

(b) See Cic. in Verr. II, c. 42.

the laws Julia and Plautia forbid a prescription to things seized by violence.' Further, as to things immovable, the law ordains, that, if any man should take possession of an estate without force, by reason either of the absence or negligence of the owner, or because he died without heirs, and (although he hath thus possessed the land dishonestly as knowing it to be the property of another) shall have made livery of it to another, who took it bona fide, the land by such long possession may be acquired by such taker, who took neither a thing stolen, or seized by violence.'(a) By adopting the rule of the Roman law, our statute avoided the artificial system of real actions consequent upon the English rule of successively divesting the owner of the right of possession and then of the right of property.(b)

ART. VI.-HABEAS CORPUS-SEAMAN IN THE

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William Walker on writ of habeas corpus v. Charles Morris, Esq. Commanding Naval Officer, Boston station.

A seaman in the navy put under arrest before his term of service has expired, may be retained for trial by a court martial after his term has expired.

THE facts in this case, as stated by Judge Wilde, are as follows:

It appears, by the return on this writ, that the petitioner, William Walker, enlisted into the navy of the United States on the 5th day of January, 1829, for the term of one year; and that on the 3d day of January, 1830, the said Walker, being still a seaman in the navy, committed the crimes and offences of 'disobedience of orders, uttering mutinous words,' and 'raising a weapon against his superior officer, while in the execution of the duties of his office;' whereupon he was put into con

(a) Inst. Lib. 2. Tit. 6.

(b) Harg. Co. Lit. Lib. 3. n. 155, 278.

(c) It is perhaps scarcely necessary to say that this case will not appear in any regularly published reports. The question which it involves is important. VOL. III.-NO. VI.

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