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ture of the case a just compensation but the debt itself which will be its own measure, and this would amount to nothing: more than the taking with one hand and paying with the other, which would be an absurdity. But ;
3d. It is the nature of a prerogative of the commonwealth, that it cannot be sued; or at least this will not be permitted, but, sub modo, and by special law. The commonwealth cannot be sued ; .which though it may seem an unreasonable thing, yet the carrying a judgment against the state into effect, by compulsory process, constitutes the difficulty in the way of permitting a suit to be instituted in the first instance. For in the case of executory process there can be no writ to take a corporate body, and the inexpediency of permitting a levy on the public funds, money in the treasu ry, or lots on which the public buildings are erected, is such, as in the opinion of the legislature to prohibit it. Hence no general law enabling a creditor of the state to sue ; and unless by law specially provided, and given in the particular instance, it has not been done ; and this must be considered, rather with a view to inform the conscience of the legislature who will do right, and not as, ex adverso suing to a judgment. Laws have passed in some instances giving leave to individuals to bring suit; but this not under the idea that in case of debt or damages found, execution should issue; but that the state should satisfy; and in a case of real estate, direct possession to be delivered. For it must be understood that there shall be a saving of the principle, that in contemplation of law, the commonwealth should be supposed to have done no wrong. It is in order to ascertain what is right, that such legal process is instituted and enquiry made ; But,
4th, The not being bound by prescription of time is a prerogative which our commonwealth posesses, unless when it is not taken away by particular statutes ; and in no case, for an offence of malum in se, is it taken away. any length of time the prosecution of the 'offender, for felony or misdemeanor, may be taken up. But,
5th, The nonpayment of costs is also a prerogative of the commonwealth, so that in the case of an acquittal on an in
dictment or information no costs are allowed to the defendant, whatever may be the expences to which he may have been put; but, he is left to recover of the prosecutor, where there is one ; but if not, the matter having been taken up at the instance of the attorney for the commonwealth ; or the court directing it; or the court binding over to answer for a charge, he has no remedy; for the commonwealth does not pay costs.
I return to say a few words on the head of prescription of time not running against the commonwealth, to shew that it is not unreasonable that it should be so in the case of criminal proceedings. For statutes of limitation are founded in the policy of quieting posessions in a case of real estate, and of preventing suits in the case of personal actions. But -still more, in the presumption, that, in the case of debt, or account, payment has been made, when a creditor, within a reasonable time, hath not made a demand; and in case of trespass called for satisfaction or brought suit. In the case of real estate the presumption is that a grant has been made; or that the claimant has relinquished or abandoned. It is for the security of improvident individuals, that there should be a limitation of time, because the evidence of title may be lost or of money paid, or satisfaction made. But in the case of an offence against the public, the presumption is that the evidence has not existed, and the fact come to light as affecting the wrong-doer.
In the case of priority of payment, I will also add that, following the prerogative of the crown in England a preference was given at an early period, here, as appears by acts of assembly that are noted as expired, or repealed, or supplied. These are so early as 1705, 1710, and 1764, &c. entitled acts, " for giving priority of payment to the inhabitants of the government; or directing the order of payment of debts of persons deceased, &c. That of 1764 which gave a preference to the commonwealth, after physical and funeral expences, has been supplied by that of 19th Ap. '94, by which debts due to the commonwealth shall be last paid. This is precisely as it ought to be, not because the commonwealth has a broad back; but because the whole people have, a right to postpone themselves. But the right to prefer themselves is more questionable ; and as respects debts due before the act, it cannot be done consistent with the constitution. Under a general law, and which bears upon debts to arise, and a parte post, it is equal. In this point of view, the whole may have a right to prefer themselves, because every constituent has in contemplation of law given his assent. But as there never can be any necessity for such a general act, I do not approve of it.
In the case of the U. S. there is no such prerogative, unless given by the constitution. It is inferred from it under the head of making all laws necessary. The government of the union is invested with the power, " to pay the debts and provide for the common safety ; to raise and support armies; to provide and maintain a navy; and to make all laws which shall be necessary and proper for carrying into execution, these and other powers.” The right to give a priority of payment as to debts due to the U.S. is claimed under this clause. It had been taken under sundry acts of the national legislature, in certain cases, from an early period, after the adoption of the constitution. But by an act of the 3d March, '97 this prerogative is carried to an equal extent, or greater than, by the prerogative of England it has been done. See the reasoning of the counsel, and the decision of the court 2d. Cranch, 358. And yet it is a provision of the federal constitution, Art. 7 of amendments, that “private property shall not be taken for a public use without a just compensation.” If our reasoning is correct with regard to the power of the commonwealth of this state, a fortiori, it must hold in the case of the U.S. under a dubious construction of the clause of necessity.
The right of prosecution is ranked as a prerogative of the crown ; and may also be considered as a prerogative of the commonwealth ; so that a felony cannot be compounded; and the right of pardon may also be considered in that light : these and many other powers and privileges also, which can only be vested in the body politic: and exercised by the legislative or executive authority; but I shall not 80
tice these as they would be numerous. In judicial trials it, may be ranked as a prerogative of the commonwealth, that by a rule of the courts it shall have a preference in the order of hearing; but this extends only to criminal cases ; and not to those .actions where the state is a party in civil; nor ought it to be.
“ In the beginning of the world, we are informed by holy write “the all-bountiful creator, gave to man “dominion over all the “ earth: and overthe fish of the sea, and over the fowl of the air, “and over every living thing that moveth upon the earth."* This “is the only true and solid foundation of man's dominion over ex“ternal things, whatever airy metaphysical notions may have “ been started by fanciful writers upon this subject." II Bl. Com. 2.
It is an objection to the theory of this commentator that the authority of the legislator of the Jews is not universally acknowledged.
With such therefore who do not acknowledge this authority, the dominion of man over the earth, and all that it contains, must be established on other evidence. It may be asked then, may it not be established by the light of nature, distinct from revelation; or in other words, placed on the foundation of the laws of nature themselves.
However this very great commentator may sneer at the “airy metaphysical notions of fanciful writers on the subject," it will be but a narrow foundation to all the world, to place it on the authority of Moses alone.
* Gen. 1. 28.