Edward White, Esq. Escheator of Chatham County vs. Richard Wayne, Sen. Esq., 1 Charlton Rep. 94

Per Jones, Judge. The first question proposed, is, whether the law for regulating escheats be an ex post facto law within the meaning of the constitution of the United States, and the constitution of this state ? The words ex post facto, when applied to a law, have a technical meaning, and, in legal phraseology, apply to crimes, pains, and penalties.

Blackstone’s description of the terms is clear and accurate. “ There is,” says he, “ a still more unreasonable method than this, which is called making of laws ex post facto ; when, after an action, indifferent in itself, is committed, the legislature then, for the first time, declared it to have been a crime, and inflicts a punishment upon the person who has committed it.

Here it is impossible that the party could foresee that an action, innocent when it was done, «hould be afterwards converted to guilt, by a subsequent law ; he had, therefore, no cause to abstain from it, and all punishment for not abstaining, must, of consequence, be cruel and unjust.” 1 Blk. Com. 46. In the constitutions of Massachusetts, Delaware, Maryland, and North Carolina, the terms ex post facto are understood in the same sense. The 24th

article of the declaration of rights, in the constitution of Massachusetts : — “ Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government ” The constitution of Delaware,

article 11, of the declaration of rights : — “ That retrospective laws punishing iffences committed before the existence of such laws, are oppressive and unjust, and ought not to be made.” The constitution of Maryland,

article 15, of the declaration of rights : — “ That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty ; wherefore, no ex post facto law ought to be passed.” The constitution of North Carolina,

article 24, of the declaration of rights “ That retrospective laws, punishing facts committed before the existence of such laws, and by them only declared criminal, are oppressive, unjust, and incompatible with liberty ; wherefore no ex post facto laws ought to be passed,” Again, the words of the constitution of the United States are, “ That no state shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.

Art. 1, sec. 10.” Where is the use and necessity of the latter words if.a law, impairing the obligation of contracts, be comprehended within the terms ex post facto law ? The framers of the constitution, says Judge Patterson, understood and used the words ex post facto, in their known and appropriate signification, as referring to crimes, pains, and penalties. The arrangement of the distinct members'of this section, necessarily points to this meaning.

The words of the constitution of this state are, “ Freedom of the press, and trial by jury, as heretofore used in this state, shall remain inviolate, and no ex post facto law shall be passed. Charlton, A. G. for Complainants. Davis, Berrien, and Noel, for Defendant. From the connexion of the latter words with the preceding parts of this section, if appears that they were intended to refer only to crimes, pains, and penalties. The law regulating escheats, does not refer to crimes, pains, and penalties, and is therefore not within the meaning of the prohibition.

The defendant’s counsel urged, that the act is creative of a new right by way of forfeiture, and therefore cannot retrospect in it's operations, so far as to interfere with rights vested. But the defendant’s application to the property for letters of administration, proves, that he did not consider himself entitled to the possession, much less to the prdperty in dispute by mere occupancy.

His taking out letters, therefore, tends to show, that he collected the property as a trustee, for those lawfully entitled ; and that he was not otherwise interested, than in such commission as the law gives him ; otherwise he would have rested on his title of occupancy, without applying to the legal department for an authority to take possession. All property is derived from society, being one of those civil rights which are conferred upon individuals, in exchange for that degree of natural freedom which every man must sacrifice when he enters into social communities.

Hence, the right of society to regulate that property. It is a well settled principle, that an administrator is merely an officer of the ordinary, from whom his title to possession is entirely derived, and his duty is prescribed by act of the legislature, in whom the deceased has reposed no trust at all. He is, therefore, if no relations be found, the trustee of the state. The demurrer is therefore overruled ; and it is ordered, that the defendant do make full answer to the bill of complaint, 30 days before the meeting of the next Superior Court.