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

(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

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 at 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.

finement by the respondent, Captain Morris, and on the day following, charges were preferred against him to the Secretary of the Navy, and a court martial for his trial was ordered on the 13th instant, which has been since convened.

Upon the return of the writ, the counsel for the petitioner moved the court that he should be discharged and go without day.

Heydock and Rogers for the prisoner. The return on this writ sets forth no authority under which the prisoner could be detained after the 4th instant. It states, that he enlisted on the 5th of January, 1829, for one year, which expired on the night of the 4th of the same month, 1830. It shows by the terms of his enlistment, that he was lawfully detained until that time, but sets forth no authority for his further detention. The ground of this motion is, that unless it is otherwise provided by some express statute, or at least some general regulations of the service, the authority of the detaining officer and all naval officers and courts martial ceased with the expiration of the term of service, and that he was no longer a seaman, but a citizen, and accountable at another tribunal. Whether he is innocent or guilty of the charges, he is no longer within their jurisdiction, and their courts martial are no longer the proper tribunals to settle the fact. It is right, that offences should be punished, but this does not give every court jurisdiction of them; and it is also right that the jurisdiction of courts and officers should be definitely prescribed by law and not extended by inferences and arguments from convenience and expediency. The question is not, whether a law to render seamen liable after the expiration of their service for offences committed before, would not with proper limitations be useful and just, but whether any such law now exists.

The case of Lord George Sackville is not in point; there are several distinctions between that case and this. He was dismissed from the service by the order of the king, and not by the sentence of any court in the first instance. But in order to restore officers thus dismissed, nothing is necessary, but a subsequent order to return to duty, and report themselves, and they are by this restored to their rights under their former commission. But if they had been otherwise discharged, a new commission would be necessary, from the date of which they would take rank.

Another point of distinction is, that the court was ordered

upon his application. We know that the courts of common law do not take jurisdiction by consent, because they are standing courts, having the same definite and constant jurisdiction, and take cognizance, or not, as a case does, or does not, come within their jurisdiction. But courts martial are created for the trial of some particular offences of some particular individual, and are dissolved when that purpose is effected.

If the prisoner is liable at all after the expiration of his term of service, he is liable in all places, at all times, and to all officers, who have ever commanded him.

A commanding officer may punish certain offences, and to a certain extent, without the intervention of a court; theft, under twenty dollars, at discretion; any offences with twelve lashes or imprisonment without any limits, as is provided by the 26th and 30th articles. Nor is it to be believed that it was intended to commit this unlimited power of arrest and confinement of every citizen who has once served in the navy to any officer, who may by any accident or circumstance have for a short time a separate command. Civil courts have a local jurisdiction; this extends every where. Most offences in civil courts and all in our own army, or the British army and navy, (22. Geo. 2,) must be tried within a limited time; but this would make the seamen liable, after his discharge, for life.

It may be said that the jurisdiction attached by the arrest, and must continue until punishment or discharge; but this does not follow. A process may be returnable to a court, and the court may be abolished. A suit may exist in this court against a defendant, and he may enlist in the navy or be elected a representative, and no execution can be served. The jurisdiction attached but did not continue. Yet, if the other doctrine were true, this could not be so.

We ought to state that in this case we complain of no ill treatment or abuse of authority, but of the exercise of an authority which did not exist. We barely do justice to Captain Morris, and the officers of the court martial, when we say that we know that they exercise humanely and conscientiously, what they believe to be their authority. But we insist that there is no provision in the statute for detaining the prisoner.

Aylwin, for Capt. Morris. The return to the habeas corpus shows a lawful cause of detention. It sets out that the

prisoner, being a person in the navy,' on the 4th of January, 1830, did commit sundry crimes, contrary to the act for the government of the navy, passed by congress, 23d of April, 1800; and was arrested on charges duly preferred against him during the period of his enlistment.

The only

The truth of the return cannot be controverted. question is, whether there be any limitation to the term of prosecution, which would control the general powers conferred on courts martial, to try offenders. None exists in the law of the United States. Shall it be inferred by implication, because the individual no longer sustains the relation he once did to the government?

Congress have been careful to preserve the jurisdiction of courts martial. Thus in the revised act for punishing certain crimes against the United States, (act of 1825, c. 506, s. 11,) which invested the civil courts with authority in relation to offences committed within the territory under the exclusive jurisdiction of the general government, it declares 'that nothing herein contained shall be construed to take away or impair the right of any court martial to punish any offence which by the law of the United States may be punishable by such court.'

The general principle of law is, that wherever any act is prohibited under a penalty, and no limitation affixed to a prosecution, the offender is amenable at any time during his life.

The present question is like the one stated by Tytler, in his treatise on Courts Martial, (p. 113) arising out of the dismissal of Lord George Sackville from the English army after the battle of Minden, and his subsequent arraignment before a court martial. The point of jurisdiction was referred to the English judges, who reported that they saw no ground for

doubt.

A case analogous to the present one was presented to the Supreme Court of the United States. It arose in the suit of Mott against Martin, (12 Wheat. 37.) to recover a fine imposed on a delinquent militiaman. The jurisdiction of the court martial who tried him was contested, among other reasons, because he was arraigned three years after peace had taken place, for an offence committed in a time of war.

The answer given by the court, is, that it would be a strained construction of the act (that of 1795) to limit the authority to the mere time of the existence of the particular exigency, when it might be thereby unable to take cognizance of and