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99 Wn UmU VTAVAi.- 

YOL. m. 

184». yjp 


Eanus aceoriiiig to act «f. CoagnM, in tb« f«tr i84S, by T. tt J. W. Jowntm, 
I tb* Clark'* OOee of the Diairiet Oowt «f the Baatern Diatiiet «f teomfiniik. 









Hoir. ROGER B. TAN£V, Chief Justice. 
HoK. JOSBPH STORY, Associate Justice. 
Hon. JOHN McLEAN, Associate Justice. 
Hoir. JAMES M. WAYNE, Associate Justice. 
Hob. JOHN CATRON, Associate Justice. 
Hov. JOHN MeKINLEY, Associate Justice. 
HoK. PETER y. DANIEL, Associate Justice. 
Hoir. SABfUEL NELSON, Associate Justice. 

John Y. Masoit, Esq., Attoraey-General. 
WiLUAM Thomas Cabroll, Esq., Cleric. 
BcMiAiairC. Howaed Esq., Reporter. 
Alexaxdu Hunteb, Esq., MarshAl. 




At the opening of the Cooxt thk morning, Mi. Ndeon, the Attor^ 
ney General of the U.^ 8., addreaeed the Court as fdlowa: 

«« I haTe been requested, this nunningt to pieseni tp your Honeis, 
a 8eri^<^re8ohitioiiS9 adopted yesterday, at a Obsetiiig of the menbeis 
of the Bar, and other officers, connected with this tribunal, erinetre 
of their idbouxation'or the chareeter, and respect for the memory of the 
Hod^ Hbiirt Baldwin, kte an Associate Justice pf this Court. 

M In aipquilling myself of this melancholy duty, I cannot forbear-tlie 
expression of my sincere concurrence in all that my bBeihem hav^ 
testified of the distinguished merits <^ the deceased, with whose 
friendship, originating in an intinttUe association in the popular bhmdi 
of the national Legislature, I hare for years been hommred* 

a I hsTo known him— as we all knew and appkedated him— as 
frank, generous,, and bene^rple^t, as a mati, and as pure, and'pio- 
found, and independent, as a judge; and whibt die resdutiow, 
which I hold in my hand, evident the consideration, Jn which hia' 
illustrious senices, political and judicial, corering more than thirty 
3reai8 of the history.of this confederacy, are hdd'by those who haW 
adopted them, I am sure that I ahall not be regaided as pfBsuttj^ 
tuous, in assuming, that they equally won for him the esteem, eon*' 
fidence, and auction of his brethren onrthe bebclu 

^ In this assurance, I now present these resdutions to your Honois, 
which, after they shall have been read, I respe^ulfy more may be 
entered on the minutes of your proceedings.*' 

M At a meeting of the Members of the Bar of the Supreme Court 
of the United ^Ates, and of the Officers of the Court, at the pourt 
room in the Capitol, on the 8d day of Dec'r. ▲• n* 1844. 

MThe Honourable James Buchanan was called to the chair, and 
the HooouraUe William L. Dayton, appointed Secretary. 

The following resdutions were submitted by the Hcmoumble Joseph 
R. IngerBoU, and unanimously adopted :— 


M Be8ol?ed, That the Supreme Court of the United States, and the 
country, hare sustained, in the death of the HonouiaUe Hsmnr 
Baldwin^ a loss of extensi?e learning, inde&ligable industry, pure 
integrity, and sterling abilities : a long and hhorious pivctioa at the 
Bar, had prepared and disciplined his mind for the severer studies 
and more responsible duties of the Bench, and he has left to the 
Profession lasting proofe how fiuth&Hy he pursued the one, and how 
actively he discharged the other* 

M Resolved, That this meeting sincerely laments Judge Baldwin's 
decease, in tbe^ midst of a career of active useftdness ; and that the 
members of this Bar, and'Officers of this Court, will wear the usual 
badgeof mourning during the residue of the term. 

*« Resolved, Thai the chairman and secretary transmit a copy of 
these proceedings to the family of the deceased, and assure them of 
our sincere condolence, on account of the great loss they have sus- 

M Resolved, That the Attoiney General bd requMed to move the 
Court that these resolutions be entered in the minutes of thi&ir pro- 

Jas. Buchanan, Chairman. 

fFm. L. Dayton^ Secretary.'* 

To which Chief Justice Tanst,' replied as follows : — 
M The Court very sincerely unite with the Bar, in die testimony 
of respect proposed to beoftred tothememory of our departed brother. 
We have at the present term, as at the last, assemUed tc^^ether under 
painful circnmsianoes ; and are again caDbd upon to depbre the loss 
of one, who for many years was associated with us in the labours of 
the court ; and whoM great haming cooimanded the confidence \of 
all who had an opportunity ci knowing him. He was indeed full of 
thai learning of die law; strikingly familiar with its records and 
dedsioos, in ancient as well as modem times ; and perhaps scarcely 
aHy one can ftilly appreciate^ his high claims to respect, unless, like 
ourselves, he had often met him in the calm discussion of the con- 
ference room, and heard him from time to time discussing the 
various, abstruse and difficult questions which are continually arisingl 
We siiicerely feel his losi, and deeply depbre it ; and shall direct 
thi^ proceedings to be entered on the records of the Court, as evi- 
dence of the leep^i and regard which we all entertai&ed for him.'* 

Dec*r. 4th. 





Or TBS Covsn of tbs UinnDfitATit nri^Avns w Adkibaitt 
AHD MABimn JumttDicnoN on tbs Ihitancb Sn>B of m 
CouBX'— IN rcMmjAMom of Aor of tbs %2d of Avovn*, 1842.-^ 
CM. 188. 

No mmuB prooea thaO itrao fram the District Coaxt in moftMl 
cause pfadmhilty 04 mniiiiDe jmisdictioD, until the libel or lib^ of 
infonnstkiii shell be ffled in the elerk^s offise, from which such |io- 
oess IS to issue. M process shell be serred by the mershel cr ty 
his deptttjaoriiheieheordiey aie'iBteiestedtJbyscMiiedisci^ 
di sin terested petsoa appointed hf the oomt. 


In suits ja peisooam^ the mesne process may be by it simple 
wanantof anest of the peisonof the defendant in the natoroof a 
capias, or by a wanant of anest of the person of the defendant with 
a danse therein, that if he cannot be found, to attach his goods and 
chatteb to the amoont sued for, or if such property cannot be fo(und, 
to attach.his credits and eftcts to the amount sued for in the hands of 
the garnishees named therein f or, by a simple monition in the nature 
of a summons to appear and answer to the suit, as the UbeDanl shaD, 
in his Ubel or information, pmy for, or elect. 


in aB suits in personafii,r^-where a simple warrant of arrest issues 
and is executed, die marshal may ta&e bail with sufficient sureties from- 
the party arrested by bond or stipulalion, upon condition thai he wQl 
appear in the suit and abide by all orders of the court, interlocutory 
or final, in the cauoe, and pay the money awarded^by the final decree 
rendered there in the court, to which the process ii returnable or 
in any appellate court And upon such bond or stipulation, sum- 
mary process of execution may and shall be issued against the prind* 


pal and snietiei hy the eooit te vrliich such process is retonable to 
ettibcce the final deeree so rendered, or upon qppeal, by the appellate 


In all suits iff personam, when goodi and chattels, or credits 
and effects are attached under such warrant authorizing the tfune, the 
attachment nu^ be dissolved by order of the court to which the same 
warrant is letumaUe, upon the defendant, whose property i^ so. 
attached, giTing a bond or stipulation with st^cient sureties to abide 
by all ortos, interlocutory 'or final, of the court, and pfiy the amount 
awarded by this final decree rendered in the court to wUck the 
process ii returnable, or in any appellate court ; and uix>n such bond 
or stipulation, summary process of execution sbidl and may be issued 
against die principal and sureties by the court to which such warrant 
is retimable to enforce the final decree so rendered, or upon appeal, 
by tie appellate court. 

Bonds or stipulations in admiralty suits may be given and taken 
in open court, or at chambers, or before any commissioner of the court 
who is authorized by the court to take affidavits of bail,4ind depositions 
in cases pending before the court. 


In all suits in personam, where bail is taken, the court may, upon 
motion for due cause shown, reduce the amount of the sum contained 
in the bond or stipulation therefor : and in all cases where a bond or 
stipulation is taken as bail, or upon dissolving an attachment of 
property as aforesaid, if either of the sureties shall become' insolvent 
pending the suit, new sureties may be required by the' order of the 
court to be given, upon motion and due prorf thereof. 


In suits in personam, no warrant of arrest, either of the person or 
property of the defendant, shall issue for a sum exceeding five hundred 
dollars, unless by the special order of the court upon affidavit or other 
proper proof showing the propriety thereof. 


In all suits in rem against a ship, her tackle, sails, apparel, furniture. 

boatiyorcdicr appurtcna nceg, if ioeh . tadde, wdltt ^^p>iel» fiiittitog6t 
botlBorothetappaiteiiiiioatflieiii the po ti c M io n oi cnttody of tiqr 
ihiid penoD, the cooit nmjf after a doe monition to aoch thiid penoot 
and a hearing of the canae, if afiyv wbj the aune should not be 
deUTered orer, award and decree thai the same Ka deUfered into the 
enstody of the manhal or other proper officer* if nfctk the hearing the 
Mone is required Sy kw and justice. 


In aB eases of aeixuie and in othor suits and proceeiings in Mm, 
the process, unless otherwise prorided for by statute, shall be br 
a warrant of arrest of the ship, goods or other thing to le arresled, 
and the maTshal shall theTeuix)n arrest and take the ship, goods or 
other thing into his possession for safe custody ; aiid shall cao^ public 
notice thereof and of the time assigned for the return of such process 
and the hearing of the cause to be giren in such newspaper within 
the district as the District Court shall ord^r, and if there is no ^w 
paper published therein, then in such other public places in the dis- 
trict as the court shall direct 

In all cases where any goods or other things are arretted, if ths 
same are perishable, or are liable to deterioration, decay or injury by 
being detained in custody, pending the suit, the court may, upon the 
qpplicatioQ e( either party, in its discretion order die same, or so 
much thereof to be sold, as shall be perishable or liable to depredation, 
decay or injiiry, and the proceeds -or so much diereof as shall be a 
fiin security to satisfy in decree to be bioughr into court, to abide the 
erent of the suit ; or the court may, upon the application of the 
daimant, order a delivery thereof to him upon a due appraisement to 
be had under its direction, either upon the claimant's depositing in 
court so much mon^ as the court shall order, or upon his givinga 
stipuhtiaD irith the sureties in such sum as the court shall direct to 
ahUe by and pay die money awarded by the final decree rendered 
by the court or the appellate court, if any appeal inlenrenes, as the 
one or the other course shall be ordered by the court. 


In like manner where any ship shall be arrested, the same may, 
upon the application of the claimant, be deliyered to him upon a due 
ai^raisement to be had under the direction d* the court, upon die 
claimant's dqKjsiting in court so much money as the court shall 
cRier, or upon his giving astipulation with sureties as aforesaid ; and . 

Ti ftirxit« or paAOTiei 

in its diacreticRiy iipon the applicadoD of ekher putyt vpon due cuiie 
showiit order a sde of inich ship, dlsd die prooeedi tlMnof to be 
brought into comty or otherwise d^)osed of as it may deeoi most 
f(Mr the benefit of all ooDOoned. 


In all stuts b/ material men for supplies or lepaiis or other neees^ 
series for a foieigti ship or for a ship in^ a foreign port, the libelknt 
may proceed against the ship and freight in rem, or against th^ 
master or thd owner alone in personam. And the like procieeding in 
rem shall ipply to cases of domestic slups, wheie by Aa local bw 
a lien is giTen to material men for snpj^ies, rspaiiSt or other \ 


In all suits for mariners* wages, the libsDant may proceed against 
the ihip, freight, and master, or against the ship and freight, or against 
theowner or master alone in perKMiam. 


In 1^ suits for pilotage, the UbeOant may proceed against the ship 
and master, or against tihe slup, or against the owner alone, or the 
master alone, in peiBonam. 


' In all suits for damage by collision the libeDant may proceed 
against the ship and master, or against the ship alone, or against the 
master or the owner alone, in personam. 


In an suits for an assault or beatii^ on the hi^h jMas or elsewhere^ 
within the admiralty and maritime jurisdiction, the suit ihall be in 
personam only. 


In an suits against the ship or freight founded upon a mere mari- 
time hypothecation, either express or implied, of the master- -for 
moneyr taken up in a foreign port for supplies or repairs or other 
necessaries forthe voyage, without any claim of marine intl^rest, the 

worn, TMB Od9BTi Of 4BMIBALTT. til 

UbeDant nmy pioeeei either in im or agaaifC t^ 
alone in peiBonam. 

In all suite on bettooiybdnde* .properly eo eajbdv the eoi^ he 
in rem only againet the pwp e rty hypotheeated, ei the prooeede of the 
property in whoaeeoerfr handi the same mi^ h^ Ibinid, nnlete the 
neater has without anthontygiren the luiHtaufy boBd« oir by hie ftand 
or miacondnct haa aToided the aame, or haa aabtiaoM the property, 
or nnleae the owner haa'hy hie own miaoondnet or wiong Itmt or aob- 
tac^d the pR^peity, in wkuteik. laMer eaaer the anit nay be in per- 
sonam against the wrong-doer. 


In all snita for salirage, Ihe soit may be in remagainat thepropeity 
aaTe^ or the .proceeda )hersof, or in p e ia n n a m against taa paity 
at whoae request and for whose benefit die salfiqie eerrioe htt^heen 


In all petitory or possessory suits between part owners or admse 
prpprietois, or by the owDers of a sUp or the majority thererfagaiist 
the master rf a ship for the ascertainment of ih^ title and deUverynf 
the possession, or for the possession only, or by one or more pat 
owners against the others to obtain security for the return of the sh^ 
fiiom any toyage undertaken without their consent, or or morq 
part owners against the others to obtain possession of the ship finr any 
▼oyage upon giviBg security for the sde return thereof; the process 
ahaU be liy an arrest of tlte ship and by a monition to the adTerse party 
or partiea to-appear and make answer to the suit# 


In lil eaasa whero the decree ia for the payment of money, the 
Bbellant may* at his election, haye an attachment to compel the 
defendant to perform the decree, or a writ of execution in the nature 
of a capias andof a^eri fiicias, commanding the marshal or his deputy 
to lery the amount thereof of the goods and chattels of the defendant, 
and for want thererf to arrest his body to answer the exigency of the 
execution. In all other cases the decree may be enforced by an 
attachment to compel the defendant to perform the decree ; and upon 
such attachment the defencttnt may be arrested and committed to 
prison until he performt the decree, or is otherwise discharged by hw,( 
or by the Older of the court 

Tin BVLBi or PftA€T10B 


AH informatioDB and libeb of infiamiatidn upon seizures for any 
breach of the reyenne or nayigationor other laws of the United States, 
shall state the place of seizure, whether it be on land, or on the high 
seas, or on naTigaUe wateis within the adnuralty and maritinie Juis- 
diction of the Unitsd States ; tmd the district within which the pro- 
peitj is brought aad where it then ik The infimnation or Cbd of 
information sbJl dso propound in distinct articles the matters relied on 
as grounds or caosesof fcnrfeiture, and arer the samB to be contary to 
the fom^ of thi statute or statutes rf the United States in such case 
prorided, as tke case may require, and shall conclude with a prayer 
of due prociBS to enforce the f(nfeiture and to give notice to aB 
persons coiuemed in interest to appear and shew cause at the return- 
day of the process why thd forfinture should not be decreed. 


M Ibeb in instance causes, dTil or maritune, shall state the nature 
of thecause, as for example, that it is a cause civil and maritime, of 
contnct, of of tort or damage, (mt of salvage, or of possession, or other- 
wise as the case may be, imd if the libel be in rem, that the property 
is Tathin the district ; and if in personam, the names and occupations 
an^ places of residence of the parties. The libel shall also propound 
ani articulate in distinct articles the various allegaticm of fiicts, upon 
wiich the libeDant relies in support of his suit, so that the defendant 
nay be enabled to answer distinctly and separately the several matters 
iDUtained in each article ; and it shall condude with a pmyer of the 
process to enforce his rights in rem, at in personam, (as the case may 
require,) and for such relief and redress as the court is competent to 
give in the premises. And the libellant.may further require the 
defendant to answer on oath all interrogatories propounded by him 
touching all and singular the allegations in the Ubel at the ckse or 
conclusion thereof. 


In all informations and libels in causes of admiralty and: maritime 
jurisdiction, amendments in mailers of form may be made at any 
time on motion to the court as of course. And new counts mAy be 
filed and amendments in matters of substance may be made upon 
motion at any time before the final decree upon such terms as due 
court shall impose. And where any defect of form is set down by the 
defenda(it upon special exceptions, and is allowed, the court inay, in 
granting leave to amend, impose terms uponihe libeOant. 


. In an cmset of Ubek in persoDam, the oonit may in its difcretioo, 
upon the appcaiimce of the defendant* where no bail has been taken 
and no attachment of piopeity has been made toanswer the exigency 
of the ffoity leqniie the defendant to giye. a ttipdation with taretiea 
in inch ^ the court ahall direct, to pay dl coets and ezpenaee, 
which tahall be awarded againit him in die enk upon the final 
adjndicatioii (beieof^ or by any Interlocntory order in die proceaa of 


In soita in rem, the party claiming the property riiaSl Terify his 
chin^ on oath or solemn affinnation, stating that the daimaiA, by whom 
at on whose behalf the claim is made* is ^e true and bon& fide owner, 
and that no other person is the owner diereof. And where \he claim 
is put in by an ag^nt or consignee, he shall also make oath, t«at he is 
duly authorized hereto t^the owner, or if die property be at lie tbne 
(^the arrest in the possession of the master of a ship, that heis the 
kwfol bailee thereof for the owner* And upon putting in suchdaim, 
the claimant shall file a stipulation with sureties in such sum m |ha 
court shall direct, for the pa3^ent of all costs and eq[>enses Wch 
shall be awarded against him by the final decree of the court, or 190a 
an ^>peal, by the appellate court. 


In all libels in csiuses of dtil and maritime jurisdiction, whethet 
in rem or in personam, th^ answer of the defendant to the allegations in 
the libel shall be on oath cy solemn .affirmation ; and the answer ihall 
be full and explicit and distinct to each separate article and separate 
allegation in the libel,in the same order as numbered in the bbd; 
and shall also answer in Uke manner each intenogatoiy pi o p o nm bd 
at the ckse^^he UbeL 

The Uhdlant mayexceptio the sufikiency or f^Uness or distinct- 
neas ot rekT^ncy rf.the answer to the articles and interrogatori^. in 
llielibd; andif the couit shall adjudge the'same ex^tions or any of 
them 10 be good and yalid, the court shall order the defendant fcmh- 
with within such time as the court shall direct, to answer the same, 
and ^ay further ^er the de^dantio pay such costs as the court 
diall adjudge reasoDable. 


If the defenduit thall omit Or idbM to make doe answer to the 
fibel upoQ the retam-dayof the prooe» or other dajMBigned hj 
the eomt, the cout AmU pnmoanoe him. to be- In cootomeqr and 
defcoh, and thereupon the Uhd shall be adjudged to be taken ^fto 
confiwao against h^ and the comt shall proceed to hear the canse 
ezpaite and adjudge therein as to kw and justice diall vppeitatn. 
Bat the conit maf in its discretioQ set aside the deftab, and upon die 
application of As defendant, admit him to make answer to the libel at 
soy time befiae the final hearing and decree, xqion his pa^i be ut of 
aU the costs of the suit up to the tme of gsusdng leave thmfior. 


In an ^ases where the defendant answeis, bat does not answer 
foUj and ez|dicitlj and distinctly to aH thematteis in anyaiticleof 
the hbd and exception is taken diereto by die Kbdknt, and Oie excep- 
tion is iUowed, the coait m^, by attachment, compel the defendant 
to saale Auther answer thmto, or may dhect the matter of the 
exoepion to be tab n pro confesso against the defendant to the faD 
poipvtand e&ctof the aitide to which it pui pot ts to answer^ and ai 
if M answer had beei^ pot in thereto. 


The defendant may object by Jus answer to answer any aOegatioii 
er interrogalocy contained in the libel which will expose him to- any 
l^ooecmion or poniahment far a crime, or far any penalty or any 
orfaitare of his propeity for any poial oflence. 


Hie defendant diall hare % right lo req[mre the perwwal 
of thefibeHaitt upon oathcr solonn a ffii m ati on to anyi 
lies which he miay at the close of his answer propoond lo th^ 
hbdlant toadiing any matters charged in the hbd, or loHiching any 
qptfeer of defence set op in the answer, subject to the like exception 
as lo matters which dtsU expoee the hbejknt to aoy prosecution or 
pumshment or foiifiriture as is proTided in the Slst lidk. In defeuk 
of due answer by the hbelknt to such inter rogatories the ooort may 
adjudge the Kb^ant to be in de&uh and dismiBS die Jibel, or may 
compel his answer in the premises by attachment, or tike the subject- 
matter of the interrogatory pro confesso in feroor' of the defendant, 
as the court in its discretion shall deem aiost fit to promote pubGe 



Where either the libeOant or the defendant is out of the country, 
or nnable from sickness or other cs^nalty to make an answer to any 
interrogatory on oath or solemn affirmation at the proper time, the 
eoort may in its discretion, in furtherance of tke due administration 
of justice dispense therewith, or may award a commission to take the 
answer of the defendant when and as soon as it nay be practicable. 


If any third person shall inierrene in any cause ef admiralty and 
atutritime jurisdiction in rem, for his own interest, anl he is entitled, 
according to the coui^ of admiralty proceedings, to be heard for his 
own interest therein, he shall propound the matter in siitaUe aDegar 
lions, to which if admitted by the court, the other part; at parties in 
the suit may be required by order of the court to make lue answer 
an4 such .further proceedings shall be had and decree rendered by 
the court therein as to law and justice shaU appertain. But erery 
such interrenor shall be required upon filing his allegatiois, to giyie a 
sdp^Jation with sureties to abide by the fioal decree rendtred in the 
cause, and to pay all such costs and expenses and damagis as shall 
be, awarded by the court upon the final decree, whether it ii rendered 
in the* original or appeUate court. 


Stipulations in admiialty and maritime suits may bei^taketinopen 
court, or by the proper judge at chambers, or under his order by any 
commissioner of the court, who is a standing commissioner^ the 
court, and is now by law authorized to take affidarits of bail, md also 
depositions in civil causes pending in the courts of the United States. 


Exception may be taken to any Ubel, allegalioQ or answer tot 
surplusage, irreloTancy, unp^rtinence or scandal, and, if upon rtference 
toamaster, the exception shaU be repotted to be so obje^ionaUe, and 
allowed by the court, the matter shall be expimged at the €Ost and 
eiqpense of the party in whose Ubel or answer the same is fomd. 


In cases of fdreign attacl^nent, the garnishee shaU be recuired to 
answer m oath or solemn afilrmation, as to the debts, credits •r efiects 
of the defendant in his hands, and to such interrogatories touching 


thesameasmaybcpiopoiiiidedbythelibeUant; andif hethallreAite 
o)r neglect so to do, the court may award compubcry process in per- 
sonam against him. If he admit any debts, credits or e^ts, the 
same shall be held in his hands liable to answer the exigency of the 


In cases of mariners' wages, or bottomry, or salvage, or other pro- 
ceedings in rem, where fteight, or other proceeds of property are 
attached to, or ai« boand by the suit, which are in the hands or pos- 
session of any person, the court may, upon due application by petition 
of -the party interested, requi]:e the party charged with the possession 
thereof to appeir and show cauje, why the same should not be brought 
into court to axswer the exigency of the suit; ahd if no sufficient cause 
be shewn, th) CQurt may order the same to be brought into court to 
answer the exigency of the suit, and upon failure of the party to 
comply with the order, may award an attachment or other compulsive 
process to ompel obedience thereto. 


If in anpadmiralty suit, the libellant shall bot appear and prosecute 
his suit aicording to the course and orders of the court, he shall be 
deemed ii defauk and contumacy, and the court may, upon the 
applicatim of the defendant, pronounce the suit to be deserted, and 
the samemay be dismissed with costs. 


The orart may in its discretion, upon the motion of the defendant 
and thepa3rment of costs, rescind the decree in ^y suit in which on 
account of his contumacy and default the matter of the libel shall 
have bein decreed against him, and grant a rehearing thereof, at any 
time within ten days after the decree has been entered, the defendant 
■ubmittbg to such further orders and terms in the premises as the 
court my direct. 


An sdes of property under any decree in admiralty shall be made 
by the oarshal or his deputy or other prbper officer assigned by the 
court, waere the marshal is a party in interest, in pursuance of the 
orden of the court ; and the proceeds thereof, when sold, shall be 
forthwith paid into the registry of the court by the officer making the 
sale, to be disposed of by the court according to law. 



AH moneys paid into the legistry <rf the couit shall be deposited 
in some bank designated hf the cooit, and shall be so deposited in the 
name of the cooit,^ and shall not be dmwn out except by a check or 
checks signed by a judge of the court and countersigned by the clerk, 
stating on whose account and for whose use it is dnwn, and in what 
suit and out of what fund in particular it is paid. The clerk shall 
keep a regular book containing a memorandum and copy of all the 
diecks so drawn and the date diereof. 


Any person haring an interest in any proceeds it the registry of 
the court, shall haye a right by petition and summarr proceeding to 
intervene per interesse suo, for a dehTeiy thereof to Um ; and upon 
doe notice to the adrerse parties, if any, the court Aall and may 
pioceed summarily to hear and decide thereon, and to cecree therein 
according to law and justice ; and if such petition or daim shall be 
deserted, or upon a hearing be dismissed, the court mayin its discre- 
tion awud costs against the petitioner in fiiyour ofthe adierse party. 


In cases where the court shall d^em it expedient at necessary for 
the purposes of justice, the court may refer any matters ariang in the 
progress of the suit to one or more commissioners to be appointed by 
the court to hear the parties and make report therein. And such 
commissioner or commissioners shall have and possess all tke powers 
in the premises which are usually given to or exercised br masters 
in chancery in references to them, including the power to aiminister 
oaths to and examine the parties and witnesses touching the premises. 


AU appeals from the District to the Circuit Court must be made 
while the court is sitting, or within such other period as shall be 
designated by the District Court by its general rules, or by an order 
specially made in the particular suit. 


In all cases not provided for by the foregoing rules, the District 
and Circuit Courts are to regulate the practice of the said courts 
respectively, in such manner as they shall deem most expedient for 
the due administration of justice in suits in admiralty. 



TheBe niles shall be m force in all the Cixouit and Diatriet Courta 
€i the United States from and after the first day of September nexX. 

It is Ordered by the court. That the foregmng Rules be ani they are 
adopted and promulgated as Rules for the regulation and government 
of the practice of the Circuit Courts and District Courts of the United 
States in suits in admiralty on the instance side of the courts. And 
that the reporter of the court do cause the same to be. published in the 
next Volume of hfs Reports ; and that he do cause such additional 
copies thereof to be published as he may deem expedient for the due 
information of the bar and bench in the respective districts and 



Willis Hall, 
George R. DaTis, 
T. P. AUjcoa BiUit 
Win* L* Dayton, 
Jno. C. Ten Eyck* 
TKo8. 1. Johnston, 
P. C. Treadwdl, 
O. L. Dolany, 
H. W. DaTis, 
J. CoUamer, 
Henry Piitle, 
Washington Hunt, 
James Bemple, 
Henry T« Cranston, 
Edward A. Donscomb, 
W. M. Meredith, 
James Yeech, 
Jeinrls Spencer, 
A. Fischer, 
N. H. Swajrne, 
J. L. Jemegan, 
WilL George Bead,' 
Henry W. Rogjers, 
Edwiurd Warner, 
A. "Aos. Smith, 
James Lorimer Graham, 
John B. Bemiss, 
Wright Hawkes, 
Weare Tappan, 
Thos. F« Carpenter, 
Philip Williams, Jr. 
J* Hoffinan, 

New York. 

New Jtfaej. 

DiBt. of Columbia. 
Rhode Island. 
New York. 



N. Yoik. 

Dist. of Colombia. 





N. Hampsfiire. 

R. Island. 





John Mason, 


John L. Curteniust 

N. York. 

Samuel Rirke, 


Henry M. Philipet 


Charles B. Goodrich, 


William H. English, 


O.H. Piatt, 

N. York. 

Alanson Nash, 


Win. R. Woodward, 

IMst. of Columbia. 

Jeremiah £. Gary, 

N. York. 

Geo. P. Baiker, 


'Leslie A. Thompson, 


R. M. Qaiaes, 


Joseph C. Hart, 

N. York, 

Daniel F. Cooke, 


James W. Marcy, 


Richd. H. Crawford, 

Dist. of Columbia. 

Levi D. Carpenter, 

N. York. 



George £. Hand, 


Charlemagne Tower, 



AUabfMMt of Judges. 

Thebs having been an Associate Jotfice of (tm coort appointed 
during the pnesent term, it is ordered, that the foUown^ allotment 
be made, of the Chief Justice and the Associate Jutices of said 
Court, among the Circuits, agreeably to the act of Confess in such 
case made and provided; and that such allotment be entered of 
record, viz, : 

For the 1st Circuit. The honourable Joseph Stoey. 

For the 2d Circuit. The honourable Samuel Nelsoi. 

For the 3d Circuit. The honourable 

For the 4th Circuit. The honourable Roger B. Takut, C. J. 

For the 5th Circuit. The honourable John McKmun. 

For the 6th Circuit The honourable James M. Wayie. 

For the 7th Circuit The honourable John McLeav. 

For the 8th Circuit The honourable JoHir Catron. 

For ihe 9di Circuit. The honourable Peter V. Daniei. 

JtrofcA 5(^,1846. 

NoTB, by the Repotter. The honourable Saxvel Nbiaov prodoccl hit eoia- 
mifiioD, and to<^ hit sent upon the bench, on the 8d of Marcn, 1S46 


Ordered, That the Court will not hear arguments on Saturday, 
(unless for q;>ecial icause it shall order to the contrary,) bit will de» 
vote that day to die other business of the Court ; and Uiat on Friday 
in each week, during the sitting of the Court, motions b cases not 
required by the rules of the Court to be put on the dockt, shall be 

a2 T 


entitled to preference, if isuch motions shall be Qiade before the Court 
sball have entered on the hearing of a cause \ipon the dodcet ; and 
the rule No. 34, adopted at February term, 1824, be and the same 
ia hereby, rescinded. Dec. ^. 


Orper^, That no pHnted or written argument be hereafter re- 
ceived, unless the same diall be signed by an attorney or counseHor 
erf' this. Court. DeCi I8tk. 


Obdersd, That printed argumenits, under the 40th rule, wiQ be 
receiVied hereafter, and at the present' term, until the first Monday 
in February, in each and every term, whfle the Supreme Court con- 
tinues to meet on the £rlt Monday in December; and that the 49th 
rule of the Court, adopted at January term, 1842, 'be, and the sapie 
is hereb}, rescinded. 



Aldridg« «t iL V. WOHaiiM •• ..... 9 

Anderaon, HendenoQ o. '. ... 78 

Andrews v. Will etiL. 6M 

AppMl Ttx Cor-t, Gocdon v. • - 138 

Bd^inuiretiid Ohio IUibodLC<«ptny,TlM State • • 535 

Bvry ». Gamble 83 

Beet, Walkei't LeaMe o. . • Ill 

BbdL et eL V. Zodieiie & Co. • 483 

BomiefiMo. WiUmme- • • • • • •• - 574 

Bpjd, Nofton'e AMg leev.* • • - - • • r 438 

Bxockett V. Bkodbett • . 891 

Brown's Leantf^ 9. ClemeDti 850 

Cemden v. Doronnw etiL- • •.• • • • - - 515 

Carroa«.8eflbi4 i ." - 441 

Ceiy 9. Cmtif -888 

Chaiiee v. The Unitod Statoe . - ^ 811 

Chiiily, Ex parte 308 

demeote, Brown's Levee o. 65Q 

Cljmor's LeeMe V. Dawkine - • .... . - - 874 

Croglian's Levee v. Nelaon ........ 187 

Ciuliav. Martin «Dd Co. • • • • • • • . • • 107 

CJqrtM^ Caiy v. '388 

I)ii:v]ea el aL v. Faiilwiin et aL •-838 

Dkwkina, CKmer'a Levee «.-• • .. . .^ 874 

Di^aoa r. WilkinaQn •• • • •• • • ••5> 

Donoraa et aW Camden v.- •• • • • ^ - 515 

Doer, Ex parte • • - • - - ,- - - - 103 

£fi|ng^'Gantlj*8 Leave «• ........ 707 

Fanbaim el aL, Batiw et aL V. • • •.- •• •• 838 
Rnt Mnnicipefityy Peiinoli ©,.*•••-•- 583 
~ , Tlie Uniled Statea «. • • 557 

CtamUe, Banjr «. -•-•.•-•-.- 33 

Gantlj'a Leaaee v, Ewing • - 707 

Gear, Tbr United atatoav. 131 

OiImd, Bwaitwoot V. --IIO 

Oevdon V. The Appeal Tax Cout - • . ^ - • • 133 

Owin, McFarland v. • - - • • • - - - • 717 

Hagan, PoDaid'a Leave «. • 313 

Hendenoo v. AndflBraon • -• • ^73 

BkktfB Leave v. Stewart • .«. .. 750 

Hodge, United Stateav. * • 534 

Kendall «.StokeB - •• - .. .••^.. 87 

King eta]., The United Slateav. 773 

La Pajotte, Cit7 o( Pooltney et aL V. 81 

Loie et aL V. Tick et aL • • • • • - - • 484 


ICntin iflbXkK, Cmtii v. • •- • . • . . . iq^ 

Miinrin, The United SlulMV, .« '610 

McPoDQch V, MiBanrkin •-••«••• ^g^ 

MeFarlaad v. Qmm •• 717 

Mfllaodgn, McDodo^ v. ••-..... 093 

Neil, Moote & Ca V. Stale of Ohio ••«.... yfQ 

NeleoD, Crogfamn't LeflMe V. • •• • • « . • 197 

NkhoUi ct aL, White r. 366 

Norton's Anignee v. Bojd • • • • • . •• 430 

O&wet et aL V. Piatt -• • • - 883 

Pormoli V, Fint Mnzucqialitj 689 

Piatty OliTer et aL V. >•• . . • 888 

PoIlvd*s Levee 9. Hagan 818 

PoaltiieyetaLv.Cityof LaFajetto 81 

I^ientias, Ro« !;.••-«-•••.• 77X 

PraMsottetaL, The United Statee*. 578 

Plrioe V. Sea ri o ra -• 884 

Roaa V. Pranti* -• 771 

Safibfd, Carrol V. « 441 

8avage*a Aasgnee V. Beat • - -t - • ... .m 

Searight v, Stokes etaL •. i6l 

Seanoms Pri» v • -. • • . 684 

Smith, Wilam dt Co. V. --• 783 

State of Maryland v. The Baltimore and Ohb Railroad Company • • 635 

State of GHo, Neil, Moore dt Ca v. ...... 730 

Stewart etaL, HidDej's Lessee V. • - • .. . .760 

Stewart etal. The Wadiington Bridge Company v. • • . . 413 

Stunpsonv. West Chester Rail^road 658 

Stokes, Kmdall V. 87 

Stokee etaL, SMiight v, -151 

Swartwoit V. Oihon - - . no 

Taylor r.The United Statea - - - - . . - - 197 

United Sates, Chnirer^. - •• 811 

United Sates v. Freeman •-•.•••••. 667 

United Satea tK Gear • • .... . ^. . 131 

United fitatea V. Hodge • • • • 684 

United Mates V. King etaL ..... ^ . . 773 

United Itetes v. Marrin 620 

United Hates V. Prescott et aL •• 678 

United States, Taybr 9. • • 197 

United Itates, Winstoa r. 771 

Tick etL, Lane ctaLv. • • " • 464 

Walk^nTheBankof WasUngton ...... gS 

WaD etiU Andrews o. 668 

Washin|ton Bridge Company V. Stewart 418 

Wadiin|on, Bank oC Walker V. • 68 

West Cbster Rail-foad Company, Stimpabn 9. .... 668 

White f*.NicboUs eC aL ......... f88 

WiDdnsn, Dickson v. • • •• • -- . . 67 

W01iams,Aldridge V. .9 

WiHiama3omiafiee V. 574 

Wilson ^Ca 0. Smith . ^ . 768 

Winston t United States 77t 

idCa,BbcketaL«. •.••«.... 488 






Andrew Aldridox and otkxrs. Plaintiff in brror* v. Nathanibl 
F^ Williams. 

The act of Congress, of March Sd, I833» commonlj called the Compromise Act, 

did Dot, prospectively, repeal all daties apon imports aAer the 30ih of Jane, 

Repealing only such parts of previous acts as were inconsisteit with itself it 

leA in force, alter the 80lh of June. 1842, the same daties which were levied 

on the 1st of June, 1 12. 
Daties were- directed by the act of 1838 to be levied according to a home valaa- 

tion, <* onder such regulations as may be prescribed by law." Tlus ph)rase 

embraces all regalations lawfully existing at the time the home vafomtioii 

went into operation, whether made before or after the passage of the act of 

And the regulations established in the 7th and 8th sections d the act of 1832 

are safficient for the correct performance of the daW; 
The regulations prescribed by the secretary of the Treasoiy, and a power 

given to him by the 9th section of the act of 1832, are also « regulation^ 

prescribed by law." 
The court, in construiAc^an act, will tlot consider the motives, or reasons, or 

opinions, expressed by individual members of Congress, in debate, but %ill 

wok, if necessary, to the public history of the times in which it was passed* 

Tfais case was brou^t up by writ of error, from the Ciicuit Court 
of the United States for the District of Maryland, and inrolred the 
constraction of the act of Congress of March id, 18S3, commonly 
called the Compromise Act. Williams was the collector of the 
port of Bdtimore, and the plaintiffs in error were importing mer 
chants, who sued to ecover duties paid under protest 

The title of flie act was " An act to modify the act of the 14th 
of luly, 1&32, and all other acts hnposing duties on imports.'* 

The let section *ptoyided that from and after the 31st of Decem- 
ber, 1833, in all cases where ujties shall exceed twenty per centum 
on the value thereof, one-tentli part of such excess shall be deducted ; 
from -and after the 3l8t of December, 1835« another tenth-part ; from 

VoL-in— « 9 


Aldridge et aL v. Williamj. 

and after the 31st of December, 1837, another tenth part; fix>m and 
after the 31st of December, 1839, afnother tenth part; from and after 
th^ 31st of December, 1841, one-half of the residue of such excess 
^all be deducted ; and from and after the 30th of June, 1842, the 
other half thereof ^all be deducted. 

The 2d section raised the duty upon certain woollens fix>m five 
to fifty per centum. 

The 3d action was as follows : 

^< That, until the 30th day of June,. 1842, the duties imposed by 
existing laws, as modified by this acl^ shall remain and continue to 
be collected. And fit)m and after the day last aforesaid, all duties 
upon imports shall be collected in ready money ; and all credits, 
now allowe(H)y law, in the parent of dXities, shall be, and hereby 
are, abolished; and such duties shall be laid for the purpose of 
raising such revenue as maybe necessary to an economical adminis- 
tration of the government; and from and after the dayiast afore- 
said, the duties required to be paid by law on coods, wares, and 
merchandise, shall be assessed upon the value mereof at the pbrt 
where^the saoTe shall be entered, under such regulations as may be 
prescribed by law.'* 

The 4th section exempted certiun articles from dutv during the 
interval between the 31st of December, 1833, and the 30th of June, 

The 5th section exempted certain article firom duty after the 30th 
of June, 1842, and concluded as follows: ^^And all im^ports on 
which the first section of this act may operate, and all articles now 
admitted to entry free from duty, or paying a less rate of'duty than 
twenty per centum, ad valorem, before the jsaid 30th day' of June, 
1842, from and after that day may be admitted to enty, subject to 
such duty, not Exceeding twenty per centum, ad valorem, as shall 
be provided for by law." 

The 6th and hst section was as follows : 

'< That sa much of the.a6t of the 14th of July, 1832, or of any 
other act as is inconsistent with this act, shall be, and the same is 
hereby repealed : Provided, That nothing berem contained shall 
be so construed as. to prevent the passage, prior olr subsequ£nt to 
the said 30th day of June, 1842, of any act. pr acts, fix>m time to 
time, that laay be necessary to detect, prevent, or p.unidi evasions 
of the duties on imports imposed by law, nor to prevent the pas- 
sage of any act prior to^ the 30th day. of June, 1842, in the con- 
tmgency either of excess or deficiency of revenue, altering th^'rates 
of duties on articles which, by the aforesaid act ot 14th of July, 
1832, are subject to a less rate of duty than twenty per centum, ad 
valorem, in such maimer as not to exceed that rate, and'so as to 
adjust jthe revenue to either of the said contingencies." 

The statement of fects agreed upon in the court below was as 
follows: — 


Aldridge et aL v. Williams. 

^In tfab case it is admitted that, on .die 20di August, 1842, die 
pbgntiffi in tins cause imported into the port of BaidmoK, fioln 
liveipool, in Endand, ^ large quantity of goods, wares, and mer- 
chandbe, and on me same day entered the same at- the ciistom-house 
in die port of Baltimore ; that, the following is a true entiy and list 
of said goods, their qualhy, character, and value. 

(Here followed a ust of the goods, with their value, amountinir to 
je8254 16s.) 

Value at Baltimore per appraisement ... $44,346 00 
20 per cent->-am't duties paid collector under protest 8,869 20 

Value per invoice, X str. 8254 .16^ 0, or - - - $36,661 00 
20percent.. - - - - - - - 7,330 20 

Duty per home valuation • • • « - $8,869 20 
Per invoice value - ;• - - - - » 7,330 20 

1,639 00 

'^ TfaAt, on their entry, ^ defendant exacted and required of the 
plaintifis to pay, as iana for duties oil said goods, the sum of ei^t 
diousand.ei^t hundrecf and sixty-nine dollius and wp cents, which 
the plaintifis first refused to pay, but not b^ing able oget their goods 
without payine^ the same, they did pay the same under protest ; diat 
the value of the goods, by the true invoice cost, adding fireigfat and 
other chaises, was thnrty-stx thousand six hundred and mly-one 
dollars, {$SSfi5l ;) that the home valuation in Baltimore, as fixed 
by the appraisers, was for^-four thousand three hundred and forty- 
six dollars, ($44,346;) that the duties upon the invoice ^x)st and 
charges would have been seven thousand three himdred and diirty 
dollars and twenty c^ts, ($7,330 20.) 

<^ It is further agreed, that the duties, so collected as aforesaid by the 
defendant, were exacted under, and in pursuance of, orders and 
regulations firomthe Treasury Department of the gpvemznent of the 
United States, and with die approoation, and section, and direction 
pf the President of the United States. . 

V And it is also admitted, that the amount exacted as afi^resaid by 
defendant of plaintifis, and by ttiiem p^id him aa aforeiaid, was d^ 
posited, by die defendant in die Merchant^ Bank of Baltimore, to 
die credit of die Treasurer of die United States, pn di« 29di August, 

^* It is also agreed, that th^ court may infer, firom •die £eu^ herein- 
brfore agreed upon, yfhaterm a juiy might infer. • . 

<^If, upon the foregoing; statement of fkct^ the coftrt flhaQ be.of 
opinion that the idamtiflB are entided to recover the above sum of 
eig^ diousand e%ht hundred and sixty-nbe doUi^ni and t^enQr 


AUridge et aL v. Williamt. 

cents, ($8,869 i^J or any pazt 1faereof| then judgment to be enter- 
ed for ^ plaintiff, for the amount ao determined to be due, with 
interest ; if they diould be of opinicm that die plidntiffi are not en- 
tided to recover fit all, then judgment to be entered for defendant 

^It is ^irther agseed, that this court etiter up a 4\idgment upon die 
aforegoing case stated, for the defendant, and that die plaintiffi be 
at lil^ity to ap{)eal, or prosecute a writ of eiror to the like effect 
and purport, as if the above facts were stated in a bill of exceptions, 
and judgment rendered upon them for the defendant 

^^ Ana it is forther agreed, that either party shall be at liberty, in 
the Supreme Coiut^ to raise and arjnie, in tluit court, any pomts or 
Questions which, it may appear to Siat court, could be raised upon 
Hie aforegmng bds. 

Reyesdt JoHKSoir, /f>r phM^Sy 

79th Mv^mber, 1842. ^' ^^"^ ^"> ^* .Afoni^-'' 

The court below gave judgment for the defendant, and a writ of 
error brought the proceedmgs up>to this court 

R. Joktuofif for t^ .e piahAiffi ia errors 
JVe^fKm, attorney- genera}, for tfaa^dbidant 

R^Jbhiuon made three pointoii 

1. That when the duties were, ezadted of the jdaintiff. b^ the de- 
fendant, there was no law ijppoong ai^diUiesiipoii audi an importa- 

2. Diat if 4iere was, diere was no law authorizing their being 
levied on the home valuation, and that the plaintiff is entitled to 
recover tike diflb«nce stated in the record of $1539. 

3. That if such duties were in whole, or in part, exacted without 
kw, Aie amount Ikiay be recovered in an action for money.had and 
leceived, upon the fiicts of this oase.^ 

He said that die judgment below wzsoroJbrnUij and the duestion 
raised by the fo:st point was now for tho, first ^time ]bh>ug^t before anv 
court. . The amount in all the cases isabout a million and a halt 
Before 1842; all duties were levied upon foreign valuation. There 
are two constructions of the Constitution ; one, that under it, there^ 
is a power to collect revenue for- the sake of the revenue only ; the 
oth€jr,/or protection. The act of 1833 was a compromise between 
these t^^. Each class was suppbsed to surrender something. The 
law was int^ded to terminate at a certain period, viz., 30ih June, ' 
1842, and the question is, what was the condition of the revenue- 
system after that day. Was there any law to impose duties? We 
say not From the history of die act and the act itself, we infer, 
that it was the intention of its firameis to leave the subject whollv to 
Congress after 1842« The former attorney-general decided other- 
wise, and gave two opinions ; but, upon examining them, we do not 

JANUARY TERM, 184ft, 13 

Aldridge et at v. Williavt. 

find that clearnesB of convictioii which he alwaji had when clears 
ness was attainable. He evidently doubted opoa the fiibject The 
secretary of ihe Treasury differed torn him in opinion. The Com- 
mittee of the House of Representatiyes reported unanimously that 
there was no authority to collect duties at all after the 30ih of June, 
1842. What is the construction of the act, taken 1>y itself, apart 
fit>m its history? The title is, *< An act to mocfify," &c., showii^ 
an intention to change the entire system, and make it just what dus 
law would leave it« as if all other acts were specially rep^ed. The 
first two sections provide for the period anterior to June, 1842, widn 
odt saying what anall be done afterwards ; the third says, that, until 
that day, other laws, a^ modified b^ this act, shall contmue in finrce. 
Congress, therefore, was not content with leaving the collection of 
duties as a matter of inference, but gave an explicit dira^n diat 
they Aould be collected, showing its opinion to be fhat unless there 
was an express authority granted to th^ executive power to^ collect 
the modified duty, that brancb of die government would not'have it 
all. The remainder of die section applies to a time after Ju|ie, 
1842, and says that credits shall be aboushed. But upon what is the 
payment to be calculate, or how much is it to be? 'Ihis part of the 
act is silent *^ Duties dmll be laid only sufficient for in economical 
administration of the government" But the amount wanted bom 
year to v^ar can only he determined when the year comes, and could 
not be foreseen in lo33. There is a constant refierenee in the act to 
the diso^tion of future Congresses. Who was always tp decide 
upon the amount vdiiph. would be consistent with an economiod 
administration? Not the executive, nor the judietary, but ibe 
firameis of the law well knew that Congress alone could settle the 
annually recurring question. What mi^t be economy at one time4 
mi^t not at another. TV'act says *^ such duties shall be laid,.&c,'' 
rising prospective terms. Again, the phrase ^^ duties required to be 

Slid by law,'' implies that the law is to be passed thereafter. So, 
e phrase, *^ shall be assessed, &c., under such regulations as may 
be prescribed by law." The object of the law is quite apparent 
It was to give quiet to the country (of nine years, and tnea' the 
government was to go on under -an economicaf administration, the 
amount of esroenditure being setded by the then Congress* The 
oidy mode of assesang the duties then known, was to take the 
forei^ valuation ; but firauds were practised under th^ method| 
and m order ftirther to protect domestic industry, a home valuation 
was substituted. But as this would be diflerent in the reroectivt 
dties, the mode of producing^ unifbrmity Was left to the kg^dativf 
and not flie executive power. - 

The 4th section enlarges th% list of firee articles. 

The 6th. provides also for firee articles, and Aen says that *^ all 
imports, &c., may be admitted at such duty as shal) be provided for 
by law." Why was that clause put in ? Hie orevious imrt of the 


Aldridge et al. «. ^Williams. 

law substitutes cash for credit, and home for foreign valuation. 
Supposing these to be positive enactments, what does the clause in 
Question enact? No one knew better dian the framm of the law 
that it contained -nothing which could be enforced by t& judidaiy. 
But it was a time when all parlies united for great objects ; and 
though they knew that it would be attempt to t^mmel and 
tie up future Congresses, yet they could chalk out a broad line, and 
rely upon the same patriotism which animated them, for its being 
Jollowed out I'he. limit was, that only such an amount of revenue 
should be raised as was necessary for an economical administration 
o^ the ^vemment, and the duties were to be collected ^^ under such 
res^ulations as may be prescribed by law." Could they suppose, 
whep they used this language, that the regulations already existed 
upon the statute-book ? In the latter part of this section it isr said, 
that importations may be admitted upon such duties not ^ceeding 
twenty per cent, "as may be provicled by law." What- does the 
gbvemment say? That twenty per cent must be paid, and the dis- 
cretion as to a lesser amount is gone. The result of the argument 
will be, that the free articles twenty per cent also, because 
the government sa^ this is the duty. If there was any duty at all 
after June, 1842, the executive must deduce his rig^t to collect it 
fit)m the 5th section, for no preceding section fixes the amoi^nt 
But the 5tb section includes more artid^ than those paying upwards 
of twenty per cent, and there is no process of reasoning by which 
one class can be taken out and the omer left How, then, are free 
articles to e^ in? Tbe act shows that it was done by subse- 

aueht legi^ation. But if any articles can be considered as free, 1)y 
le operation of flie act itself, the aame reading will include ^tect- 
ed articles and brii^ them in fi«e idso. The words " as shall be 
provided for by law" ride over the whole section. If flie attomejF- 
general supposes that thede words mean such regulations as the 
executive nught make under i»ior laws, it am>ears to me that he 
confounds the mode of assessing the du^ wim the power to assess 
it The opinion of l^e late attorney-general, takes this ground. 
Suppose there was a prior law giving to the Treasury Department 
the power of makmg regulatbns for the collection of the tax ; this 
only reaches one of the two things that must be done, viz;, l^t, a 
tax is to be imposed, and, 2d, "uie mode of collecting it -is to be 
ported out But a power to cany out the second branch of- the 
proposition does not give to the executive, an authority to name the 
amount ot the tax nor the articles upon which it shall be levied. 
The iihposition of a ta(k is a high exercis^ of le^ative power, and 
Congress could not vest the executive with it The act states 
twenty per cent as a ihaximum, birt, wiAin that, there b a discretion 
to be exerdsed by Congress. There aJe three classes of articles 
recoff^d in the bill ;. one paying more than twenty per cent duty, 
oh^ less, and the third entirely free^ Are all these to be taxed 

• JANUARY TERM, 1S45. 16 

Aldridge et aL v. WilliMns. 

equally fntfa twenty per cent. ? If so, flie language of the 1st sec- 
tion would have been different firom what it is. 

2. As to the history of the act, derived from the Journal of the Se- 
nate and Register of Debates. 

The 3d section now has d^ *' domestic Taluation under regulations 
to be prescribed by law.'^ It was so in the original bill.' 9 voL 
R^. Deb. part 1, pages 711— 7ia. 

Mr. J)ickins6n proposed to strike out ^^t>y law/' and insert '^die 
secretary of the Treakuiy^ with the approbation of the .Plresidcnt»'' 
Mr. Clay said, ^leave it to a future Congress to leg;idate on die sub- 
ject of the amendment" He ** doubted the constitutional power to 
leaye it to the executive;'' and again, ^^hc would not give diem the 
power, for if mey were o|»posed to protection," ftc. 

The amendment was rejected by neariv «A unanimous vote. This . 
court has a rija^t Ao lock at the hi^ry o^die bill. In the discussiou 
of the power to create a Bank of the United States, the history of die 
country has constandr been referred to; and so with re^;ard to die 
power.of states to make insolvent laws.^ If the executive had the 
power now contended for, it is because Congress failed to keep it 
away whan it intended so to do. If die ground had been taken 
during the .discusnon of .the bill, which is now assumed on the part 
t>f thegoveniiaEltot, would the Senate have acted as tfaqr did? 

Sdpoint^ Ifwearenotentidedtodie whole, we ere to the differ- 
ence between the home and foreign valuation. Suppose the twei^ 
per cent duty is to stand; if Congress were to regulate the mode or 
assessment, and diere is no law pdnting out the manner of adopting 
the home valuation, the invoice, must be the guide. The secretary 
of the Treasury issued two diflferent reffulations. h That die ap- 
praisers diould ascertain the Current maiSet value of die articles, and 
charge twei^ty per cent upon it This, of course, included the first 
cost, duty, charges, and profit AH thitoe enter )nto die cash value, and 
a duty upon die afiomgate compelled the importer to pay a duty upon 
the very dubr itscST 2< iFhe secretary directed that me amount of 
dn^ diould DC deducted firom die aggregate, and twenty per cent 
charged u^n the residue. This plan might or nught not have been 
just to the government The secretary seems to have found so 
much difiiemty in supplying the want of legidadon, that this court 
can scarcely fim itself warranted in saying that legidadon existed. 

3d ^int It is contended by die odier side,'that, ey^ allowing 
diat i£ia money was improperiy exacted, an action for money had 
and receivedwill not lie against the colfector. The record says thai 
fte plaintifi coqld not get their goods widiout payinj|[, and dad ao- 
cordingly pay, under a protest This protest was notice to the col* 
lector not to pay over to die IVepsury. That he was bound to pay 
' over, begs the iriiole quesdon; because, if the government had no 
li^ to exactit,diecolfectorwas.x>nly an ordinary agent, and bound 
by the same rales. Hie suit was bioug^ on the day after the money 


Aiaridge et aL «. WillikiBs- 

was paid over, and tbis di^cumatance is thought by the opposite coun- 
sel to xhake a difierence, and to free tbe^ collector from responsibility. 
But if the pendency of a siiit would protect the collector^ the exist- 
ence of a notice would do the same thing. An action for ^^ money 
had and received" is the proper one in all cases like this. If the 
otfa^er side are right, all that the collector has to to pay ayer the 
money immediately to the Treasury, and we must then fig^t it out 
with me soyemmeQi But this is not the intention of the law. The 
moment mat the collector received our money,, our right of action 
conmienced, and nothing ibat he can do can divest us of the rig^t 
which has accrued. 

JVehouj attorney-general, for defendant, made the two following- 
points: — 

1. That the amount of duties as aforesaid, pud by theplainti£& in 
error, upon the goods, wares, and merchanodse imported by them 
into die port of Baltimore, was properly demanded by the defendant 
in error, tinder the provisions of the act of the 24 of Marchj 1833, 
entided ^'An adt to modify the act of the 14th of July, joiie thousand 
eight himdred and thir^-two, and all other acts imposing duties on 
imports." . 

2. That even asyiming the same to have been demanded without 
authority of law, the acton for mone^ had and received, instituted 
by tike plamtifis against ihe ddTendant ii^ error in the court below, was 
not mamtainable. 

The first proposifion involves two inquiries: 

1st. Whether any duties were collectable under die act of the 2d 
of March, 1833? 

2d. If so collectable, by what xide were they to be^ascertained and 

1st. It is admitted that prior ta the act of March, 1833, the goods 
in question were subject to a duty of more than twenty per cent, by 
virtue of the act oi 14th July, 1832, to be assessed according to the 
rules prescribed by Ihat act The question di^ is, how fyr &ve the 
proviaons of die act of 1832 been cha^iged' by that of 1833? All 
are femiliar with the nature and cause ca the Uompromise Act It 
b^ursupon its&ce marks of a friendly ^irit between &e advocates c^ 
two very different classes of opitiions. As a statute, it is singularP^ 
constructed. It states political propositions, promises money, prohi- 
Uts money, but enacts few thinfl;s. But the only question before us 
is, to what extent has it changed the taw of 1832? *It consists of six 
sections, the 2d and 4tfa of which ar^ not material to the present 

The 1st section carries out the purpose indicated in die preamble, 
and provideis that from and after the 30th of June^ 1842, a duty of 
twenty per cent is to be collected ui>on all goods .inmorted into the 
United States, and embraced wx&in Its tenns. ideals only widitha 


Aldridg0 et »!. «. Willlmmt. 

eioeflB above twe&tj pe* cent:, and prorides-for its gradual dimnni- 
fioii; but ibe -dtitv men exwringi <n twenty per cent.| is no wbeie 
rep«ded. Reducing it to twenty is not iepeahn^ the twenty. Hba 
section is therefore equivalent to a wtA and postive enactment that 
a duty of twentr per cent, diould be collected after June, 1842. But 
it is tiiou^ mat this eflect of tite Ist section is controlled by the 
subsequent sections. Let us examine tfiem seriatim. 

The 3d contams nre distmet propositions^ viz. : 

1. That unto &e 30di dar of June, 1842, the duties fDiposed by 
flie 1st section diaD reuMn ind coiitihue to ht, c<dlected* 

2v Tliat an duties thereafter duJl be collected in ready money, and 
all creditB abofiahed. 

3. That all duties afad belaid for the puipose of raifling rerenoe 
necesaEoy to an eeonoimcal administraHen of the government 

4. ^lat a home vahuttion shaU be adopted. 

6. Tliat the rwuhtionsfer^ assessment dbaD be provided b^W. 

It is fliid.that & first of diese pnqiositions fimits tbe-duration of 
Ae act ID dOflt June^ 1842, and mn repeals it But it ia merely 
dedsnlorrofflieetislini^law. and provides 4iat the mod^aii^man* 
ner of couecting die duties should continue die same until dune, 
1842, whenanewmpdeandmannerofcoUeetion was to be pursued. 
It does not rq>eal the 1st section eidier exonmij or by im^cation; 
because, if such had been die intention of the lenlatme, the eipres- 
sionis used woidd have been co-extensive with mose of die 1st sao- 
tion; and the langu^ of die 1st section provided for the state of 
things afler June, 1842, whereas diat of the clause which is said to 
xmeal It, stops Aott at that day. Besidess, fb^ provision is mere^ 
amnnative m regard to die act of 1832, which was in its terms a per- 
petual act An affirmative ]^roviflion never repeals, where a pento- 
nent law is re-enacted for a time. Sir Thos. lUvmond, 397. 

2d proposition. This clause is operative by me mere force of its 
terms-'proprio vigore. It estabBdies the system of cash, antd abo- 
fiAea cremt duti^ but die duties upon i^ch it is to operate are 
those provided for in die 1st and 2d sections. It does not profeas 
to change* them in amount, but m^ely die mode in wfaidi they 
fliiaU be paid; and can be read in connection witii die li^section so 
as to be perfectiy consistent with it, except that it repeak the credit 

3d propontion. This is a mhe declaration or promise of what 
should be done by future legislatures— of itsetf inoperative. It varies 
no duty; abolishes none; estabfidies none. It merefore learesdie 
1st section in full operation. 

4di proposition. This establishes a principle and .enacts a law, 
viz. : ^at the duty shall be calculated on the value of^ die goods at 
tte place of importation, after 3(hfa of June, 1842. Its e&ct is to 
repeal the mode of ascertainment provided in die act of 1832. It 
was a strong provision for the protection of home industiy, and jeo« 

Vol. in.— 3 b 2 


Aldridge et al. v. Williams. 

parded the bill. But does it repeal the 1st section? Or does it not 
rather recognise the continued existence of the duties laid in that 
section ? 1 he duties are to be collected in cash. What duties ? Not 
those thereafter to be laid, but those then imposed. 

5th proportion. This points to the mode in which such home Ta* 
Illation shall be established,* by directing that the ^^ reflations shall 
be prescribed by law." It is said that me existence of these regula- 
tions is a pre-requisite to the power of colle<^;ting. Assuming^ this to 
be so, what would be the legal effect? Only to leave theduties to 
be ascertained as they were by the act of 1832. K this clause should 
become inoperative- by le^ative omission, it cannot repeal the other 
provisions of the act. This will be considered more particidarly 
hereafter. The resiult is, that the third section of the act, when ana- 
lysed into its five propositions, modified the act of 1832 in but two 
particulars, viz. : by introducing cash duties and a home valuation. 

Hie 4th section, as has already been stated, can have no bearing 
tipcm the question, as it is temporary in its chso-acter. 

Let us proceed to, the 5th section of the act. Does it repeal the 
1st section? It provided only that Congress may reduce the whole 
duties below twenty per cent., in case there should be a redundancy 
of money in the treasury, or raise them to twentjr upon firee articles, 
in case there should be a deficiency. How is this mconsistent with 
the Ist section? It made no change in it, but only reserves a power 
which existed without such reservation. We must harmonize these, 
sections, if possible. The rule which recjuires us to do so is so wdl 
known that it is useless to cite authorities m support of it. A reser- 
vation of power to legislate is not legislation. It would be extra- 
ordinaiy that in a case of mutud concession, all duties ^ould be 
repealed, and the manu^tuiing interest left without any protection 
at all. ^ 

The 6th section provnles ^^that so much of tiie act of 1832, or 
of any other act, as is inconsistent with this act. is herebv repealed.'* 

Tlie rate of duties differing fit)m the act of 1833; me credit on 
dttties; the duties on articles made free by the act of 1833, are in^ 
conristent with this act, and necessarily repealed by it But the pro- 
visions of the act which merely contemplate ftiture legislation, and. 
yet enact nothing in themselves, such as that ^Muties shall be laid 
for the piupose of raising necessary revenue only;" that goods pay- 
ing lesS'than twenty per cent, ad valorem, may be admitted at such 
duty, not exceeding twenty per cent, as -may be provided by law;^ 
4iat ^*the duties shall be assessed upon the value thereof at tiie port 
of entiy, under such regulations as ma^ be prescribed by lawj" (un- 
der the assumption before stated,) are mconsistent with no previously 
fxjuting law. 

A promise to pass a law to change the rate of duty, is not incoiw 
jistent with an existing law^ so as to repeal it before tiie promise is 
etecuted* The future laudation contemplated has not oeen had ; 


Aldridge et aL 9. Williams. 

die only dung done b by the act of the 11th of September, 1841, 
irfaich proTufed diat all arddes imported after the 30th of Seiitember, 
1841, -which paid less than twenty per cent or came firee, should be 
subject to a duty of twenty per cent., with certain exceptions. 

Let us now return to the consideration of die fourdi proposition 
of the 3d section, respecting the home valuation, and inquire whedier 
the power to collect duties upon it did not exist under the acts of 
1832 jand 1833, notwidistandmg the omission of Congress to legis- 
hie as to regulations. 

Omitting die qualification of tbe clause, was it not susceptible of 
ezecutibn under the act of 1^2 ? 

1. The 7di section of the act of 1832 contanis a principle 
which is as applicable to home as to foreign raluation. It directN 
the actual ralue to be appraised by die coSector, and provides for 
duties then or diereafter imposed. Value is what a dung is worth 
m the market, and the law that provicles for ascertaining it by the 
judgment of appraisers in one place, lays down a principle by 
which it in^y be ateertained everywhere. 

2. Bj the 16th section a rule of ascertainment is prescribed by 
adding usurance. 

3. But supposing diese sections insufficient, still the 9di section 
of the act vests the secretary of the Treasury, under the direction of 
die President, widi power, to prescribe regulatiotis, &(f. Doc. 261, 

ff. 6, 7 ; Executive Doc., 27th Cong., 2d sess.,.,vol. 5, opinion 
Mr. Legar^. 

But suppose diat regulations by Ccmgress were necessary, instead 
of being made by the secretary. Tbev would only be directory to 
covem the officers of the customs. The principle is e^bliidied by 
Die law. Regulations are not wanted to setde the rights of mer- 
Plants or the amount of the tax, for die aifiount is fix^ at twenty 
per cent, and this court decided in Wood's case that merchants 
must pay the amount of duty whedier die custom-house officers 
acted ri^dy or not The record admits that twenty per cent was 
biAy paid on a home valuation. A duty tbus imposed by the law 
becomes a personal debt 13 Peters, 493. The eovemment could 
recover die amount although the officers gave up me goods without 
any bond ; and money thus properly paid cannot be recovered back. 
1 T. R. ^80, 

But it has been sai(l that die statute in question may be explained 
by extrinsic parol evidence of die meaning of the le^ature which 
passed it Now I hold, 1st, That you cannot look, in mterpretin^ an 
act, beyond the terms of the act itself and the particular historical 
circumstances out of which it grew, and, 2d, That if you can, the 
evidence which has been mv^ok^ proves nothmg. 

Aa to the first proposition, see Dwarris on Statutes, 48 ; 15 John^ 
380, 395 ; 2 Peters,.662 ; 1 Kent's Com. 461 ; Opinions of Attor- 
neys-General, Mr« Wirt's opinion, 444. 445. 


- - — . 

Aldridg#^ et al. •. Williams. 

If evenr member of thejl^;islature had preferred Ihat the leffuk* 
tions unde^ t}ie act of lo32 abould not nave been sanctioiiea by 
that of 1833, it would not have been effectiye to lepeal die act <n 
1832, unlMB they had eniressed their wish m a l^islftdve fomu 
But 2d| what does the debieite prove ? Mr. Dickmaon's propoBidon 
was to strike out the peraflrqdi respecting a future law and insert 
an adoption of that of 183^« Upon what principle was it rejected ? 
Merely because Congress intended to reserve the power in^ead of 
^ving it to the executive. Even supposing that yoU knew ihe 
meaning of the Senate, would it follow that the House of Repre- 
sentatives understood^ the law so? At page 715, Mr. Robbine 
proposed an amendment, that if Congress should omit to make a 
regulation^ the law should cease ; and this was r^ected. Mr. Wit 
Idns, in his speech, said that the law was not'to be expounded by 
the declaration of any senator. 

But suppose I am wrong in all this, still I say that the collector 
is not personally ipen>onsibIe.. I concede that if an agent exacts 
mon^ illegally, and nas notice, he is liable. But diere isa distino- 
tion between voluntary and involuntary payments. 10 Peters, 137 ; 
13 Petto, 267. These cases were brfore the act of 1839, and 
under them Mr. Hoyt claimed a ridit to retain money in his nands 
to meet pxptests. The act of 3d Mardi, 1839, was passed to pre-^ 
vent this practice, and was founded upon Mr. Grundy's opimooy 
reported in Oinnions of Attomeys-GenmJ, p. 15287. This act s^ys 
that moneys paid to' collectors snail not be held bv them, but diall 
be placed to the credit of the treasurer of the United States. It 
contains two provisions. 

1. That the collector shall pay over to the treasurer. 

2. It creates a remedy for the party by authorizing die secretary 
of t^ Treasury to draw his warrant upon the treasurer fi>r thie 
amount to be rmnded. How can an importer, smce this act, brinjg; 
a personal action as^dnst the collector? This action of assun^Mit 19 
founded on an impUed promise. But will ti^e law imply a promise 
in the iace of the act of 1839, which directs all moneys, whedier 
received properly or improperly by the ooUector, to be paid imme- 
diately over to the treasurer? The case in 10 Peters, 154, sanc- 
tions a collector's retaining money if it is paid under a prot^ but 
this was before the act of 1839. If he had e^ven a bond not to pay 
it over, the bond would have been void, u then he cannot retain 
the money without violating the laws, how can a promise. to retain 
it beimphed? 

If an agent, acting in the execution of a duty, endorses a biD, he 
is not personally lii£le. 5 Price, 564. Nor will a suit lie agmnst 
an agent who pays oven 4 Cowen, 456. 

And a case in Wheaton carries the doctrine further still, that an 
officer of govenmient is not personally responsible for torts. 3 Wheat. 


Abridge et ai «. WilUmmt. . 

J dh tion , in reply and oondoaon* 

Let oil -consider m Ilie fini place llie poiat jnat raiaed, tix., tkat 
w^^^annot reooTer because the coUectinr bu paid the monej o^er to 
tiie government* We aayi 

1. That tbere ia no audi general principle. 

S. That the act ot 1839 £d liot eataUidi it 

3. ThatifitdidyflieactwguldbeimcmiatitatkMialandToid 

1. The <»iginal imkb eatabliah that vrbfot payment has been 
made to an agent, -who has paid it over widiout ^lotice, flie agent 
ia not reqponsude. But If more be notice, he iA 10 Peteia, 154; 
l3Peten,26T; 3Wheat246; 4Cowen,46e— 468; 9Johns.20L 

2. It is said, howfifer, diat the act of 1839 has changed die law 
in dns respect It is probable that coDectora sometimes retained 
too much, and ff ao, the act was rig^ But it only makes a rale 
between the gnfcinnwirt and its -officer, wllbont inter£Bnnff with die 
nf^ of die mefckant The 2d aeetion ssgrs, ** paid imcter protest 
MHDst die rate of doty,?' bnt does not Include cases in vdiioh it ia 
afieged Ihat dieie ia no dutf at aH If the argument on the other 
side be correct, dieie dem be no suit at all against «iy collector, and 
the President baa only to instruct him to seise upon any man'a 
goods diaft be ohooaea. 

3. Would sucjbk a law be constitutional f 

It is unnecesaaiy to enlarge upon die doctrines, diat the govern- 
ment has on^ limited pdwers, and diat its fondamental prinapal ia, 
the sacrednesB of private propeitv, vdiidi is not to be taken vndiout 
law. .The true constraction of *me act of 1839 must be, that die 
aecretaiy of die Treasuiy is to draw his warrant for whatever amount 
mav be recovered against the collector, and not, that he is vested 
vritn discretionary power whedier to refund or not It would not 
be justice to turn a citizen over for redress to the very government 
friuch has mjured him. 

But^ pursue the argument, 

1. Were we bound to pay any thing at all ? 

2. If so, how much,' on the home or foreisn valuation i 

The first point turns on the act of March, 1833, which it is de- 
sirable to construe by its own terms only, but if this is difficult, we 
have a right to resort to its histoiy. The 1st section provides for 
reductions until. June, 1842. After that time, was there any law for 
die collection of duties ? We say not Up to that day there can be 
no doubt of the existence of a duty, or that it was levied on ffie 
fbrengn vahiadon. It is true, that if the law had stopped there, the 
duty would have continued. But diat is not all me law. It in-, 
tended to provide also for a time subse<^uent to June, 1842, in some 
particulars,' as for escample, payment m ready money and a home 

The 3d secdoih sqrs, that untilJune, 1842, the duties dxaU remain 


Aldridg* et aL •• Wiiliamt. 

and be collected. If tbey couTd alreidy be eoOeeted by exiflting 
laws, these words are superfluous. It must be read as if die words 
'^and no longer" were mserted. After June^ 1842, die act says, 
fliat only spch an amount of revenue shall be raised as is necessary 
for an economical administration of the eovenunent Was tfaos a 
twenty per cent duty? Who can tell ? It was impossible to sajr, 
nine years in advance, what sum would be necessary. It was to be 
collected, too, in a di&rent mode ; a home valuation was introduced 
for the fiunst time. ^ The act of 1832 directed appraisers to ascertain 
die foreign valuation. It is said by the odier stde, that it is easy to 
add charges, &c., and then vou ascertain the home valuation. But 
diis is not so, because the value-«t home fluctuates tnaa a variety o[ 
causes. There is a great difficulty in carrying out this princi{dle of 
home valuation, because the Constitution requires duties to be uni* 
form in all the ports. This very subject was the great objection to 
ttie Compromise Act. Ouidit it to have been left to the executive? 
It is said, that the act of 1832 had so referred it. But not so. That, 
act oidy authorized the executive to ffi ard against fraud. Knowinff 
die difficulty of executing die duty, Congress would not have so lot 
h. There is litde or no difierence beb^een givine the executive 

Ewer to impose a tax, and power to direct the mode of levying it 
feet, die secretary of the Treasury issued three diflerent regula- 
tions on. die subject. If previous laws gave the power to the execu- 
tive, ^y were the words inserted, ^* under such regulations as may 
be prescribed by law." Mr. Le^ur6 says, it i^eans, << may Of may 
not be prescribed ;" and that ^^ may" is not imperative. 

The 4th section of the act is said to have no bearing upon tbe 
present point ; but I do not s^ consider it. It provides for free ar- 
ticles until June, 1842 j after ttiat time, they fall back into their for- 
mer class. But the section contemplates fredi legisktipn, when it 
sajrs, that goods shall be admitted on such terms as sludl be pre- 
scribed by law. Why put this in, unless it.was dioug^t that tnere 
would be no law, unless one were passed? The last part of die 3d 
section ought to t>e read as if it were part of the 1st If you ^ut 
diem togemer, the sense is clear ; and their meaning is, diatthoe is 
no duty after 1842, unless by the passage of another }aw. 

What will YOU do with the articles enui lerated in the 4th section ? 
After 1842, tney must go back to their former class. But this would 
interfere with the basis of the compromise. K the other side i^ ririit, 
these articles must be t^ed again, and, not being included vi^in 
die Ist section, might be taxed more than twenty per cent But 
this was iwt the meaning. The compromise act was more Kke a 
trebtj, of peace than a law ; but the parties could not see as &r as 
1842. One thought that free trade, and the otUer, protection, would 
by diat ^ime be the setded policy of die country, and dierefore bodi 
agreed in refening the whole inatter to fiiture legislation. Tbeyin^ 

JANUARY TERM, 1845. al. v. Williams. 

tended to lay do^m oertun general rules, idiicfa diey expected to 
have a commanding influence. 

The 5th section was not in the bill when originally repcnrted. 
Why was it put in? See Mr. Clay's qpeedi, R^. Deb., vol. 9, 
part 1, p. 463. The original bill proyided, that after 1842, the duty 
should foe twenty per cent ; but this was stricken out, and a clause 
inserted, that Congress should provide, &c. Temporary 'systems of 
legislation have ofen been adopted. 

As to <^ r^iulations to be prescribed by law :^' — The debates show, 
that a proposition was disdnctly made, by Mr. Dickinson, to leave 
them to the executive, and rejected, because it was doubted whetiier 
it was a power appropriate to the executive. The action of the 
27th Congress diows its opinion. A bUl passed with much unani- 
mity to continue duties, but failed to become a law in consequence of 
<me controTerted point. But the message of die President admitted 
that a law was desirable. Taxation riiould be cleariy imposed and 
ovibr by law, not by the discretion -of the executive. 

Ou^ the duty to have been levied on a home valuation?-—' 
Tliere viras no law for this, even if the 1st section continued a duty 
of twenty per cent It was to be carried out under regulations to 
be prescribed by law, and none were prescribed, llie fiiends of 
protection refused to pass the law, unless a home valuation were in- 
serted, and thejr were unwilling to leave the matter to the executive, 
because, if hosule to protection, he mig^ destroy it The diflferenca 
in this small invoice is $1500. 

Mr. Chief Justice TANEY delivered the opinion of the court 

This suit comes before the court upon a case stated, and is broug^ 
here by writ of error from the Circuit Court for die district of Af aiy* 

The case in its material circumstances is this: 

On the 20th of August, 1842, the plaintifis in error imported into 
the port of Baltimore, from Liverpool, certain merchandrae particu- 
Jariy set forth in the record, which, at the port of Baltimore, was 
of die value of $44,346, as ascertamed by i^praisement at die cus* 
tom^house. Upon these goods the defendant in error, who was at 
ibat time die collector, acting m pursuance of orders and r^ulations 
made by the Treasurv Department under the direction of the Presi- 
dent, demanded for duties twenty per cent, upon the value so ascer- 
tained; which amount was paid bjr'the plaintifis in error under pro- 
test; and this action instituted ^^P^st me collector for the purpose 
<tf recovering back the moncnr. There are some other circumstances 
mentioned inthe case stated, but in the view whidi the court takes 
ofthe subject it is unnecessarytorecanitulate them. The judgment 
of the Cifcuit Court was in &vour of me defendant 

The great question intended to be tried is, whedier, under the act 
of Congress of March 2, 1833, die government was authorised to 


Aldridge et aL «. Williamt. 

colkct any duties upon goods imported after ^.30th of June, 1842, 
without the ^d of further lefiislation by Congress? 

In expounding tfais^law, Sie judgment of the court cannot, in any 
degree, be influenced by the construction placed ' upon il by indivi- 
dual members of Congress in ^ debate which took place on its pas- 
sage, nor by the motives or reasons assigned bytfiem for supportii^ 
or opposing amendments that were offned. The law as it panra 
is the wiQ of the majority of both houses, and &e only mode in wUch 
that will is spoken la in the act itsdf; and we must gather their in- 
tention fibm the language there used, compaiin|r it, when any ambi- 
guity exists, with the laws upon the same subject, and. lookmg, if 
necessary, to the public history of the times in whidi it was passed. 

The act in question is certainly not free from difficulty; and this 
difficulty arises from, its Mculiar character. It .is commonly called 
tibie Compromise Aqt; and up<m the &ce of it, it is evident .that some- 
thing waa isdtended beyond me ordinary scope of le^^dation. Pro- 
viflkms are introduced in relation to me future action of Congress 
upon the tariff, which can only be accounted for by regarding the 
act as a compromise of conffictmg opinions on &at subject, whereby 
a certain scale of duties was fixed u{>on and establisk!ed until June 
30, 1842, md certain leading principles amed upon, by wUdb, 
after that time, it was proposed to regulate me action of Goncress, 
and the latter, as well a& inib former, inserted in the law m the forms 
of l^[idatioa. That this wIub flie case is.abundantly manifissted by 
several clauses in tiie act, and particulady in the 6th and last sec- 
tion, which provides that' nothing contained in the act shall be con- 
strued to prevent the passage, prior or subsequ^t to the 30th of June. 
1842, of laws to prevent mi punish evasions of the duties imposed 
by law, nor to prevent the passage of any act prior to the day last 
mentioned, in^tfae contingencr^ of either excess or deficiency of the 
revenue, altering the rates of duties on articles which, under the act 
of Juljr 14, 1832, were subject to a less rate of duty than twenty per 
cent., in such manner as not to exceed tiiat rate, and so as to adjust 
tibe revenue to either of the aforesaid contingencies. Now it is im- 
possible to sum>ose that Congress could have doubted its povrer to 
repeal, or modify afterwards, thexluties imposed by this act, in sudi 
manner as the public exi^des mi^t require, or its power to pass 
laws to secure the collection of the revenue, and to punish any one 
who midit attempt to evade the duties imposed'by an act of Con- 
gress, if there nad been nothing in this law out of the ordinary 
course of legislative action,,it would hardly have been deemed neces- 
sary to encumber it with &ese reservations of power, which nobpdy 
doubted, and which Congress was continually exercising upon every 
odier subject These provisions strongly mane its pecuhar character. 
And this association of i>ositive and imp^ative enactments, widi 
agreements for future actiop, has jperfaaps unavmdably occasioned 
some obscurity, and, as to scmie of tiie clauses, made it difficiiU at 


Aldridge el aL «. WiUiamt. 

first mfjtA to say ^riiedier tibe langnsge was mandatory, or merdj do^ 
dared dbe nriiicbles by which it was proposed that the legisbtioiiof 
Oo ug r css aiioqld a Acrwar d s be govctDed> 

Taldng this new of its gsnoral chsraeter sad objects, die ?eij 
large som idtimalely iilyolTra in die cp p tr o v e rs y makes it die duty of 
the court to proceed to a closer and mote carefol examination of its 
Hiflfcffwtit pioTisions. It is eridendy sbpplementary to theactof July 
14, 183^, andr^ealsonlysomuenoftfaat'actaiidof odierpierious 
icte-asareinconsisteiitwithit All of die duties, dierefore, miposed 
by the act of 1 832, or anjr odiec law, and aU the rules and regulations 
pioyided &yr their collection, remain ftiiull force, unless diey are in* 
consistentwidi die act in queition. 

Hie point to be determined then is, whedier, after die 30di of June, 
18^, die cdlectibn of duties imposed by die act of 1832, or by aiqr 
odier law as modified by ^^act of 1833, isinconostent mth tlie last 
mentiooed act In oth^ words, whed^ it rq>eals all preyious laws 
mqiosing duties after the time aboye mentioned; and u it does not, 
-mMber it has fldled to proyide diid necessary rules and regulations to 
csdble.die prefer officers to collect them. 

Tlie Ist sectum declares that all duties aboye twenty per cent ad 
yaloiem, imposed by the act of 1832, or any preyious laws, shall be 
leduced annually, at die rate dierein mentioned, utntfl die 3l8t of De^ 
cember, 1841; and dmt, after that time, die cm^half of die excess 
ibowe twenty per cent, diall be deducted; and firom and aft» the 
SOd&of June, 1842, die odier half shall be deducted. Heredieseo- 
tion slops; and so fior, therefore, torn repealing die whole duties, it 
by necessary implication c<mtinues a duty of twenty per cent after 
the 30di of June, 1842; tor the ^lirection to deduct the excess aboye 
that sum presurooses &at a duty'to that amount is imposed apd to 
be collected. The language, used is equiyalent to a positiye enact- 
ment^ diat from and aftar £e 30di of June, 1842, die goodstherem 
maitioned sbdl be (charged with that' duty. 

Hie 2d section is to the same eflfect For after modifying the 
duties imposed by the act of 1832, in regard to die articles men- 
tioned in tha^ q^ction, it declares that, these duties shall be ha^ to 
the same deducticms as are prescribed in the 1st sertion--<-diat ^ to 
s^, die excess oyer twenty per cent remaining on the 30di of June, 
lo42^ is to. be deducted ; and consequendy yery clearly impl^piff 
that twenty per cent is to be charged snd collected after mat penoo. 

The 3d section iHx>vides diat d^ duties imposed 1^ exiitinff laws, 
as modified by that act, shall remain and continue to be cdlected 
until die 30di of June, 1842 ; diat after diat time, all duties sbdl be 
eoUected in ready money ; and diat sudi duties shall be laid as are 
necessary to an econonu<»l administration of the goyemment, and 
shall be assessed upon the yalue of die goods at die port where di^ 
are entered, ^' under sucb regulations as maybe prescribed bylaw.'' 

The tatter words of dds section relate merely to the regulations 

VoL.m.-4 C 


Aldridge et at «. Williamt. 

by which the duties were to be collected after the time specified, 
and that part of the controversy will be hereafter considered. The 
points to which our attention is now directed is, whether, under this 
and the preceding acts of Congress, any duties continue to be im« 
posed ; in other words, whether they were not all repealed by this 
act after the 30th of June, 1842. Certainly the provision that they 
shall be paid in cash, and assessed upon the home valuation, is no 
repeal. Can the provision, that such duties should be laid, after the 
time above mentioned, as were necessary to an economical adminis- 
tration of the ^vemment, be construed to repeal all tl^ duties ex* 
isting at that tune ? We think not. The coiut are not authorized 
to decide upon the amount of revenue necessary to an economical 
administration of the government. It is a question for the legisla- 
ture. And the provision in this clause of the section addresses itself 
to fiiture le^ative bodies, and not to the tribunals and officers 
whose duty it is to cany into execution the laws of Congress. And 
we diould hardly be justified, by any rule for the judicial interpreta- 
tion of statutes, in pronouncing terms like these to be an implied 
repeal of all duties after the time specified, when that construction 
would make the law inconsistent with itself, by repealing, in the 3d 
section, the duties it had continued in force in the 1st and 2d. On 
the contrary, the true judicial inference would rather seem to be, 
that it was supposed, at the time of the passage of the act, that the 
modified duties remaining imposed on the 30th of June, 1842, might 
produce the proper amount of revenue to be levied with a view to 
the economical administradon of the government ; but leaving it to 
Congress, when the time arrived, to alter and modify them m the 
manner and for the purposes specified in this act 

The 4th section merely provides that certain enumerated articles 
shall be admitted to entry free firom du^ firom December 31st, 1833, 
until the 30th of June, lb42, and theremre contains nothing that can 
influence the decision of the court 

The 5th section declares certain ardcles firee after die 30di of June, 
1842, and then provides, that all imports on which the 1st section 
o{>erates, and all articles, which were at the time of the passage of 
die law admitted to entry free fix)m duty, or p^yii^ a less rate of 
duty than twenty per cent, ad valorem, before the 30th day of June, 
1842, may be admitted to entry subject to such duty, not exceeding 
twen^ per cent as shall be provided for by law ; and this section, 
as well as the 3d, has been much reUed on in oppoadon to the 
duty claimed by the government. But is it not like the clause in 
the 3d, of which we have already spoken, the language (rf* com- 
promise and agreement, and addressed to those who diould ^be 
afterwards called upon to legislate on the subject, rather than to dbe 
administrative tribunals and officers of the countiV ? It reserves to 
Congress the right to reduce the duties die 1st section 
bdow twenty per cent. ; to impose dudes on free articles, and to 


Aldridge* et al. v. Williams. 

raise duties T?hich were below twenty per cent, up to that amount 
Yet nobody could have supposed that Congress would not have the 
power to oo all this, ift it thought proper to exercise it, without any 
reservation of this descripticm. The ckuse obviously was not intro* 
duced to reserve power, but with a view to the manner in which it 
diould afterwards be exercised. As a mere question of power, Con- 
gress undoubtedly had authority, after the 30th June, 1842, as weU 
as before, to impose any duties it saw fit upon the articles referred to, 
or upon any other imports. And it cannot be supposed that die 
Congress of 1833 intended to restrict, by force of law, the rights of 
a future Congress. Yet if we lose sight of the compromise charac- 
ter of the act, and treat it as an ordinary act of legislation, we should 
be bound to say, from the language used, that the Congress of 1833 
supposed that the modifications of the revenue made by them could 
not be altered by a subsequent legislature, unless the right to do so 
was expressly reserved. No one would think of placing such a 
construction upon the section in question; and the difficulty is 
removed when we look at it in what we doubt not is its true light, 
and regard it as a compromise of conflicting opinions, whi^ it 
was beUeved would be afterwards respected, vmen it had thus been 
solemnly set forth in a law. In this view of the subject, it is not 
repugnant to the 1st and 2d sections, and leaves the duties retained 
by them in full force after the 30th of June, 1842, until they should 
be altered by subsequent legislation. 

The 6th and last section, the contents of which have been already 
stated, still more clearly marks the character of the act ; and upon a 
view of the '^^ole law, the court are of opinion that the duties which 
were in force on the first of July, 1842, continued in force, untB 
they were afterwards changed by act of Congress. 

This brings us to the remaimng inquiry, whether, after the 30th 
of June, 1842, there were any regulations in force, by which Hoe 
officers of the mvenue were authorized to coDect the duties which 
had not been repealed by the act of 1833 ; and this question may be 
disposed of in a few words, as it rests altogether' upon the 3d sec- 
tion, the material parts of which have been already stated. 

Before the passage of the act of 1833, there were certainly regu- 
lations prescribed by law, abundantly sufficient for the collection of 
the revenue. The clause at the close of ^the 3d section, which 
directs that after die time so often referred to, the duties shall be 
assessed upon the value at the port where the goods are entered^ 
** under such regulations as may be prescribed by law,'' can scarce- 
ly be considered ais an implied r^)eal-of all previous regulation^; 
K>r it does not confine the regulations spoken of to such as mig^t 
aften^Brds be enacted, but uses die ordinary legislative language 
appropriate to the subject, which natdrally and evidently embraces 
an regulations lawfully existing at the time the home duties went 
into operation, wheier made before or afterwards. They can, by 


AUridge et aL v. Williami. 

no just rule of construction, be hdd to rqpeal pre-ezisting ones, 
nor to require any new iegialation upon the subject, unless it 
should turn out that those already in force were insufficient for the 

But it has been urged that this clause, taken in connection widi 
the new rule of home raluatiom-then for the first time established, 
and to which they refer, shows diat new regulations were contem- 
plated, inasmuch as the -existing legislation upon that subject had 
been directed altogedier to die value at die place of export. This 
argument would undoubtedly be entitled to great weight, if die sub- 
sisBng rules and relations could not be applied to diis new mode 
of assesang the duties. But if the regulations already in force were 
applicable to this new state of things, diere is no reason for con- 
cluding that there was any intention to repeal them, even althoudi 
it should appear diat diey had been firamed with a view to me 
foreign value, and diould oe found more difficult of execution, and 
less satis&ctory in the result, when applied to die value at the port 
of entry. 

The most important reffulations in relation to this part of the case 
are contained in die 7th, 8th and 9th sections of the act of July 14th, 
1832. It is true, that diese regulations point to the value of ^e 
goods af the place of export ; and many of the i>ower8 particularly 
conferred on me appraisers would not assist diem in ascertaining the 
value at the place of import, and could not be used for that purpose. 
But die suMtantial and manifest object of these regulations is to en- 
9^le the proper officers to determme the amount, upon which the 
rate of impost fixed by law is chargeable ; and if the place, widi re- 
ference to which the valuation b to be made, is changed, it does 
not by toy ineans follow, that the powers before given to .die officerS| 
nnd the duties imposed upon them, aire not still to be exercised and 
performed so far as diey are appUcaUe to the new state of things.. 
The object and mtention of die valuation is still die same..* It is to 
execute the law, and to assess and collect die dut/ prescribed. 
Thus, for example, die 7th section of the act of lo32 declares, 
among other things, that it shall be the duty of the appraisers, and 
of every person acting as such, by all reasonable ways or means in 
his power, to> ascertain, estimate, and appraise die true and actual 
value of die goods, at the time purchasea and the place from which 
diey were imported. The place of valuation is afterwards changed 
by die act of 1833, dnd the duty imposed according to die valu at 
the home port It would be a most unreasonable mterpr^tation * f 
the law, to say, that die appraisers must still go throudithe ceremony 
of estimatmg the value at tne foreim port ; or, that me mere change 
of place^ repealed the authority to vSue at all. Iii both cases the omy 
object of the i^praisement is to ascertain die suiid upon which the 
duty is to be calculated; and the value of the goods at die forei^ 
port, or at die home port, is of no importance to the public except m 


▲Idrldge et aL v. Willlamt. 

80 far as it fixes the sum upon idiich the collector is to levy the rate 
of duty directed by law. 

Hie 9tfa section niakes it the duty of the secretary of the Treasury , 
• under the direction of the President, fix>m time to time to establiflh 
sudi rules and regulations, not inconsistent with the laws of the 
Vwted States, as the President diaU. tfaidc proper, to secure a iust, 
fidtfaful, and impartial i^praisal of all eoods, wares, and merchan- 
dises, as aforesaid imported into the l^ted States, and just and 
proper entries of such actual Value thereof and of the square yards, 
parcel^, or odier quantities, as the case may require, and'of sudi' 
actual value of every of them ; and it is made the duty of the seCre- 
taiy of the Treasury to report all such rules and regulations^ with the 
reasons tiberefor, to the next session of Congress. It is very clear 
that any rq^ation^ within the authority thus given, are regulations 
prescril)ed by law. And althou^ dus section, as well as the othera 
before mentioned, und6ubtedly contemplated tiie value at the forei^ 
port, yet when the valuation is transferred to a home port, it was still 
the duty of the secretary of the Treasunr to firame rules and regula- 
tions to ascertain die value upon whicn the law directed that the 
duty should be assessed. For this is the only object of the appraise- 
ment, an the only purpose for whichrule&and r^^ulidons are to be 

Indeed, when it is evident fliat under Ae act of 1833 certain 
duties, as therein modified, were continued after the 30th of June, 
1842, it would scarcely con^ with judicial 4nty, to give ah over- 
technical construction to doubtfbl words, which would make the 
legislature inconsistent with itself, by imposing a duty on goods im- 
ported, and-at the same time repealmg &dl 4aws by wluch that duty 
could be collected. ' For it cannot be supposed thai Congress, in 
c^ne and the same law, could so have intended ; and such an inten* 
tion ou^t not\to be impHed, unless it was a^^parent from unequivocal 
language. We think that there are no words' in the act of 1833, 
fit)m ^^ch such a deagn can fairly be inferred. 

It appears from the case stated, that the goods in question were 
subject to a duty of twenty per cent, under ihe 1st section, of the 
last mentioned act ; and tnat die duties in this case were assessed 
accordingly upon the value of the eoods at die port at which they 
entered, as ascertained and appraisea under the rules and r^ulations 
established by die secretary of the Treasury under ihe direction- oiF 
the Preadent In the opinion of the court, they w^re lawfully as- 
sessed and collected, .and the judgment of the Circuit Court is- thci^ 
fore affirmea. 

We forbear to express an opinion upon die construction of the act 
of 1839, which was argued m this case, because it is understood 
diat odier cases are standing for argument, in whidi that question 
alone is involved ; and it is proper to eive die parties an opportuni^ 
of being heard before the pomtis decided. 



Aldridge ttt al. V. Williamt. 

Mr. Justice McLEAN. 

The deciaon of this case turns upon the construction of die act of 
1833, and as I differ jGrom the opinion of a mqoiitjr of the judges, I 
'will state, in a few words, my views upon the subject 

The 1st section of the act provides, that ten p^ cent on the ex- 
isting duties shall be deducted annually, until the duties shall be re- 
duced to twenty per cent 

The 3d section declares^ '^ihat until the 30tfa dav of June, 1842. 
the duties imposed by existing laws, as modified by this act, shall 
remain and continue to be eoUectedl And from and after the day 
last aforesaid, all duties upon imports shall be collected in ready 
money; and all credits now allowed by law. in the payment of 
duties, shall be, and are hereby abolished ; and such duties ^aU be 
laid, for the purpose of raisdng such revenue as may be necessaiy to 
an economical adininistratlon of the ^vemment ; and from and after 
the day last aforei^d, the duties required to be paid by law on goods, 
wares, and merchandise, shall be assessed upon the value thereof, at 
the port whei:^ the same shall be entered, imder such regulations as 
may be provided by law," 

The sibove sections can scarcely be misapprehended by any erne. 
The 1st section reduces existmg duties, in a time and manner stated, 
to twenty per cent And the 3d section provides, " that until flie 
30th of June, 1842, the duties imposed by existing laws, as modified 
by that act^ shall remain and contmue to oe collected. Now the in- 
ference b irreastible, that after the above date, the duties shall not 
b6 collected linder those laws. And this is shown conclusively by 
die 5th section, which provides, that all imports on which the 1st 
section of the act may operate, and all articles then admitted to entry 
free from duty, or paying a less rate of duty than t\frenhr pey centum, 
ad valorem, before the said 30th day of June, 1842, from and after 
that day, may be admitted to entry subject to such duty, not exceed- 
ing twenty per centum, ad valorem, as shall be provided by law." 

Now, mese are not terms of compromise, but of enactment.- After 
the day specified, the law declares, that the duties shall not exceed 
twenty per cent. This, like all other laws, was liable to be re- 
pealed, expressly or by implication. But it is law, until so repealed, 
xhe duties are not to exceed twenty per cent, but that does not 
establish them at twenty per cent 

The 6tb section of the act repeals all laws ihconastent wiA it 
The twenty per cent duties, by this act, were to be continued only to 
the 30th of July, 1842. After that, by tiie same acf, the duties were 
not to exceed twenty per cent. Here is no repugnancy id the 
law, because the one provision is to cease at the same time that the 
other begins to operate. It is impossible that both enactments can 
be in force at the same time. They are inconsistent with each other. 
'The one provision fixes a definite amount of duties, the other an in- 
definite amount. Not to exceed twenty per cent, is not tw'enty 

JANUARY TERM, 1646. 81 

Aldridge tt aL «. Williami. 

per cent To giye efiect to this proyiaon, future lesialation „ 
neeeflsaiT. But,, is it the less binding on that account? Can it be 
diaregarded oa ^ ground that it was a mere matter of compromise? 
It has the form and soknuiity of law, and it shows, that the act im- 
posing duties expired on the 30th of July, 1842. 

That this was the yiew of Congress, is manifest from the bdj that 
in due time they passed an act regulating the duties, to take efiect 
from die aboye date, which did not receive^the signature of die ez- 
ecutiye. But this is no r^asdh why we, by construction, should con- 
tinue in force a law which Congress had repealed. After the aboye 
date, sudi (^ties were to be imposed ^' as ahall be proyided by law." 
Now, this lanKuafi;e cannot be mistaken; and it is inconsistent widi 
Ifae idea, diat ue law imposing duties prior to that date, should, after 
it, continue in force. Such a construction is unwarranted by the 3d 
section and- die whole tenour of the act "> 

It is not for this court todetennine. whether Congress, in this re- 
spect, acted wisely or unmsely ; whetnes dieir motiye was to com- 
promise gmt and conflicting interests or not; but what haye they 
declared to^be law? It would be a restriction on the lemlatiye 
power, hidierto unknown, to say, that Conjgress cannot repeu a law, 
unless they substitute another law in its place. 

If the duty law in force prior to the 30th of Jul;^, 1842, be incon- 
sistent with the proyisions of the act under consideration, then die 
prior law is repealed. And it is no answer to this to say, that die 
pricnr law, in its modified form, is in force by yirtue of the act of 
1^3. The plain and uhequiyocal enactments of that act repudiate 
audi an inference. Inits modified form, the prior law, b;^ that act, 
ezpred in 1842. . And after that, a new enactment, in my judgment, 
was essential, not only to continue duties upon fordgn mmhandise, 
but also to giye effect to all the important proyisions of the act of 

The 3d sectign, after July^ 1842, aboli^es all crecUts for duties, 
anid requires thi^ ''to be paid in ready money;" and itfiurther pro- 
yides, '^that duties shall be laid for me raising of such reyenue as 
may be necessary to an economical administration of the goyemment ;" 
and that the duties '' required to be pmd by law," '' shall be assessed 
upon the yalue of the eoods at the port where the same shall be en- 
tered, under such regulations as may be prescribed by law." 

Now, eyery one of these proyisions was adopted with reference to 
its taking effect firom, and after die 30di of July, 1842. They all 
bekmfl^ to the same class. The credit for duties was to be then 
abofisned, and prompt ps^ent required. From and after that day, 
duties were to be laid to meet the expenditure of an economical ad- 
ministration of the gpyemment. And after that day, ''the duties 
required to be paid by law," were to be assessed on tne yalue of the 
goods at the port of entry; and this assessment is required to be 
made, "under such regulations as may be prescribed by law." 

bupbeMe court. 

Barr^ V. Gamble. 

These proviaions cannot, by any known rale of constraction, be 
made to refer to'^laws or t^ulations existmg at flie dnie, of 1lbar 
enactment They all lefar to the future: to fiitdre lawa, and regO- 
Wions prescribed by Ihose.kws. 

The existing laws made no provision to cxmr into eflfect the 
changes in flie system, introduced l^ the act of 1833. Appraisers 
were appointed under former acts, but there was no law or regula- 
tion as to the home yaluatipn.'. This was a most important matter, 
under the new system. And itls percetved, from, the explicit provi- 
sion of the act of 1833, that Congress did not intend to leave an 
arrangement of so mucb importance to the discretion of the secre- 
tary of. the Treasuiy or of me President They declai^^ that the 
duties shall be assessed^ ^'under such regulations as may be pre- 
sciibed by law;" This is not to be met by ^argument It is matter 
of law. 

No one can doubt, that laws in relation to duties, not inconastent 
with the act of 1833, may be considered in giving a construction to 
that act But I am jet to learn, fliat such laws, by any confibucdon, 
can suspend or modify the'positiye enactments of the act of 1833. 
Suel^ a power belongs not to the executive nor tfie judiciary, but to 

Tjaa$ BinY, Pujiri^ry m nmoB, o. ILunLTOir R. Oamblb. 

Under the act of 1816, a New Madrid ieer^eate could be located upon lands 
before .tbey were offered af public sale under a proclamation of the Presidorty 
or even aarreyed'by the public surveyor. 

The act of ISSa recogniied locations of this Idhd, although Ihej disregarded 
the sectional lines hf which th^ snnreys were afterwards made. 

Under the acti of 1806, 1806, and 1807, it was necessary to file the evidences 

• of an incomplete claim nnder French or Spanish anmoritj, which bore dale 
pnterior to the 1st of October, 1800, as well ms those which were dated sub- 
seqoent to that day ; and in case of neglect, the bar provided in the acta 
applied to botil classes. 

A titlie resting on a permit fo settle and warrant of survey, dated before the ls| 
of October, 1800, withoot any settlement or survey having been made, was 
an incomplete title and within these acts. 

And idthongh the acts of IBM and 1888 removed the bar aa it respected the United 
States, yet, havink excepted, such lands as had been sold or otherwise die* 
posed of by the (Riited States, and saved the ri^^ts &r txHe of adverse claim- 
ants, these acts protected a New Madrid claim which had been located whilst 
the bar contianed. 

Tms case was broug^ m from &e SupremeOburt of Ifissouri, - 
by a writ of error issued under the 26th section of the JudiciairiGct 
of 1789. 

It Was an qectnient brou^t hj Gamble, die defendantJn eirar,. 
s^iainst Bany, to recover possession of a tract of land in 3t Louis 
county, BfissourL 

JANUARY TBBBi, 184ft. 

Btrrj «. Qarabl«i 

Tlie queitioii vnm one of tide. Gtaimble, tibe plaintiff bdow, 
daimed under a grant issued to Bflqptiste Lafleor in confonnitjr witb 
ike New Madrid act passed in 1816, and Bany, under die tideof 
Mada^, which was before die Supreme Court cf the United States 
in 1836, and k repented in: 10 Peters, 340. In die court below die 
parties entered an agreement upon record,' in die following words: 
— << It is agreed diat'die.tide of die plaintiff (GainUe) to die land in 
die declaration mentioned, is the title under the patent isroed to 
Bsptiste Lafleiir, or his legal representatiTes, and duit die title of Aie 
dmndant ^Bany^ is Jhe, lide under^lhe confirmatiim to die leeal 
rqi r cB cn ta t ives or James Mackay ; and if it shall be adjudged &t 
the Dtttent is a bettor tide than die confirmation, then the plaintiff 
diau recoTor the lan$ in &e declaration m e nti o ned ; and if die oon* 
firmation shall be adjudged the better title, then the defendant shatt 
haye judgment'' 

On die 13di of September, 1799| Mackay presoited die foUowing 

<^To GJiailes Ddiank Ddassus, Heutenant-colond attached to die 
'first regiment of Louisiana, and commander-in-chief of Upper 

<^ James Mackay, commandant of St Andre, of liCssouri, being 
established at die said village of St Andre, on die bank of the Mis- 
souri, but having the intention of establishing a habitation in the 
nd^bouifaood (n Mr. Papin. between St Louis and the riyer Des 
Peres, he prays you to grant him. in entire pr(^>ert7. 800 aipents of 
land, in superfices, bounded on the south by Iimd of Mr..Papin and 
Maikme (wido^) Chduteau ; on the east by the lands of die com- 
mon field of Kie/cereau, I'Anglois Taillon. and others at &e Gr&t 
Marais; on die west by James McDanicu; and on the north and 

Ertheast by die land ot Mr. CEouteau and the domain of the long, 
lowing die zeal ^nd fidelity of the suppliant in the sendee, he 
hopes this grace of your justice. James Mackat. 

«A. lotfif, IdthJSq^ember, 1799;" 

On the nesrt day, die following order was iasoed. 

«i«. Lmt, o/Ittmais, 14tt Sgd. 1799. 

^^ Hie suryeyor, Don Antonio Soulard, will put the mterested paity 
in possession m &e tract of land which he soudts hj^Vas memorial ; 
iHucfa haying done, he diall form a plat, deliyennff it to this pirtj,' 
and a certificate, in order that it may senre to obtam die conceanon 
and tide in form from the semor intendant-generalof dieseproyinces, 
to w]iom, by order oT his majesty, belongs particiilarly the distribu^> 
ing and granting of eyeiy class of yacant lands. 

<<Chables Derault DELAflScra.'' 

In Jamuirjr, 18b0, a grant was made to Chouteau for the land 
icfiened to m die preceding papers. TUs circumslanoe ia com- 
VouIIL— 5 


Barry v. Gamble. 

mented upon by the Supreme Court of the United States in the deci« 
aon upon Mackay's case, 10 Peters, 341, ^ 

On the 2d of March, 1805, Congress passed an act ^*for ascer- 
taining and adjusting the titles and claims to land withm the territory 
of Omans and the district of Louisiana," the general purport of 
^Huch was to recognise all existing complete grants. It provided 
for die appointment of three persons who should examine, and de- 
dde on, all claims isubmitted to them and report the resnilt to Hkh 
aecretaiy of the Treasury, who was directed to communicate it to 
Confi;re8S. It further provided that all papers relidng to claims 
shomd' be delivered to the register or* recorder, on or t>efore the Ist 
of March, I80d^ for the purpose of being recorded, and declared 
^lat, with- regard to incomplete titles, any person who diould neglect 
to deliver notice of his claun, or to cause the written evidence of it 
to be recorded, should lose lus rig^t, and his claim should for ever 
thereafter be barred. 

On the 21st of April, 1806. Congress passed an act supplementary 
to &e above, the 3d section of which extended the time for filing writ- 
ten evidences of ckums to the Ist of January, 1807. It forther enacted 
that ^^dierig^tsof such persons as should neglect so doing, witlun 
the time then limited, should be barred, and the evidences 6{ their 
claims never after admitted as evidence.'' 

Neither the conces^on or claipi of Mackay was presented to, or 
filed with the recorder or board of commissioners, under Mther of 
these acts. 

On flie 17th of February, 1815, Congress passed an act declarinff 
^t any person or persons owning lancu in the coimty of New Ma£ 
rid, in the Missoun territory, with the extent the said county had on 
the 10th day of November, 1812, and whose lands had been mate- 
rially injured by earthcjuakes, shoulid be and diey were thereby au- 
tfionzed to locate the like quantity of land on any of the public lands 
of said territory, the sale of which was authorized by law. 

On the 30th of November, 1815, ^ certifii^ate was issued to La- 
fleur, by the United States recorder, Frederick Bates, authorizinff 
him to locate 640 acres on any of the pubUc land of die tenitoiy of 
Miasouri, the sale of which was authonzedl by law. 

On the. 7th of July, 1817, Theodore Hunt filed a notice of loca- 
tion under said certmcate, vrith the surveyor-general. 

In the fall of 1817, (as it appeared upon the trial from the deposi- 
tion of Joseph' C. Brown, deputy surveyor of flie United States,) the 
district embracing die land m question was surveyed under die au- 
tiuNrity of the Umted States, but the survey was not closed until the 
spring of 1818. ' The impression of the witness was, that the return 
of die surveyor was made to the general land-office in 1820. 

In April, 1818, the survey of Hunt's location was made by the 
said Brovm, who placed it in township No. 45 north, rai^ No. 6 
and 7 east. It called to beg^ at die north-east comer of Papn's 


Barry «. Oamble. 

survey, and ran raynd serenl courses and distances, diBreoarding 
tlie cardinal points, in a.squaie form, and calling &^ die 'mies of 
other tracts as boundaries. 

On the 26di of Apiil, 1822, Conmss passed an act, directing 
<<diat the locations heretofore made of warrants issued under die ac^ 
of die 15di of February, 1815, (die New Madrid law,) if made in 
pursuance of die provisions of ^lat act in other respects, AsSl be 
perfected mto grants, in like manner as if diev had conformed to die 
sectional or quarter- sectional lines ot die public surveys." Tlie se> 
cond section directed diat those who located such warrants thereafter 
^ould conform to die sectional and quarter sectional lines of die. 
public surveys, as nearly as the quantities would admit 

On the ladi of June, 1823, die President of die United States 
issued a proclamation, directing the public lands in towndiip No. 45 
north, range No.. 6 and 7 east, (amongst odier lands,) \o be sold on 
the durd Monday of ibt enduing November. These ranges included 
the land in controversy. 

On the 20di of May, 1824, Congress passed an act <<«nablinff 
the claimants to lands within ^ limits of die state of Missouri ana 
territory of Arkamns to institute proceeding to try die validity of 
their chims." It allowed any peraons claiming lancb under old con- 
cessions or surveys, under certam circumstances, to present a petition 
to the District Court of die state of Bfissouri, which court was au« 
thorized to give a decree in the matter, reviewable, if need be, by 
-the Supreme Court of the United States. The 5th section provided 
that a claim not brought before the District Court in two years, Qr 
not prosecuted to final judgment in three years, should be for ev^ 
barred both ai law and in equity.^ The eleventh section enacted, 
^'that if in any case it should so happNen that the lands, tenements, 
or hereditaments, decreed to any daimant under the provisions (ji 
this act, shall have been sold by the United States, or otherwise dis- 
posed of, or if die same shall not have been heretofore located, m 
each' and every such case it shall and may be lawful for the party in- 
terested to enter, after the same shall have been offered at public 
sale, die like quantity of lands, in parcels conformable to sectional 
divisions and subdiviai<ms, in any land-oflke in die state of Bfis- 
souri," &c Sue. 

On the 26th pf May, 1826, an act was passed, contmuing die 
above act in force for two years. 

On the 13th of June, lo27„ a patent was issued to Lafleur, and 
his legal representatives, for the land included in the New Madrid 
certificate, location, and survey. 

On the 24th of May, 1828, another act of Congress was passed, 
by which the act of lo24 was continued in force, for the purpose of 
filing petitions, until the 26th day of May, 1829, and for the puipose 
of adjudicating upon the claims until the 26th day of May, 1830. 

On die 25di of May, 1829, Isabella Mackay, widow, and die duK 


Burff V. Gamble. 

dren and heirs of James Madcap, deceased, filed dieir petilioii in die 
DiabictCkmrtof^iflKnin^praymff^ttie confirmation of eig^him- 
dred upentsof land, refemnff to me petition of Mackay, flie concea- 
flian and <mier, above set foim, as the foundation of the claim. 

In February, 1830, Ihe District Court decided against the claim. 

In January, 1831, the heirs of Mackay filed a petition in the Su* 
preme Court of die United States, statmg diat, by die act^f 1824. 
&ey were allowed a-year fiom'die rendition of die decree to'uipeal 
fipm it, diat die Distnc^ Court of MBssouii was closed onthe26diof 
May, 1830, and praying to be allowed die benefit of an appeal. 
Tbe prayer was granted, and die cause came on fot heairing in 1836. 
The decision is repoirted, as before stated, in 10 Peters, 240, by which 
the decree of the Distijct Court was reversed. 

In 1837, Gamble, claiming title under Lafleur, brou^ an ^ect* 
inent in die Circuit Court of tbe state of AGssouri, for the county of 
St Louis, against Bany. The venue was chan^d to the county of 
St Charles, and afterwards to die countv of Lmcoln. where it was 
tried, and on the 2d of September, 1840, die juiy K>und a verdict 
Sof the plaintiff. 

In die mean time, to wit, on die 81st of March,^ 1840, Mackay's 
representatives- had obtained a patent from die United Stated for die 
land in controversy. 

During the trial of th^ cause, die plamttf asked the court to eive 
to diejuiy die following instructions: 

*^That the tide to the premises, in the declaration mentioned, under 
the i)atent to Baptiste Lafleur, or his legal representatives, is a better 
tide in law d&in the tide under the .confirmation to die le ' 

sentatives of James Mackay, deceased ; and, therefore, the plaintifiT in 
this caseisentided, undertheagreement of the piffties, to recover the 
possession of the land in the declaration mentioned;" which instruction 
was given by the court, and excepted to by the counsel of die de- 

The defendant, by his counsel, then adced die court to give die 
following instructions : 

<^ That, inasmuch as the confirmation and patent ^ven in evidaice 
by die defendant diow the legal estate in the premises to be vested 
in the widow and heirs of Mackay; and, inasmuch as the plaintiff 
has not shown any title under said Mackay, or his representatives, 
the defendant is entided to a verdict;" which instructions die court 
refused to give, and the defendant excepted to such refusal. 

The case was carried to the Supreme Court of the state of Mis- 
souri, which, in September,' 1842, affirmed the judgment of the court 
helow ; and, to review that opinion, a writ of error brought die case 
before the Supreme Court of the United States. 

The cause was submitted upon printed arguments, by LawUss for 
die plaintiff in error, and Spmuding for the defendant in tnot. 


Bmrrf «. Omrable. 

Tliese arganientBooeDpjiiearijfifiy pages in print, and 
legretB that his limits injl not pennit their insertion) in exten$o. 

Lawless arsued that die power of die ^[OTeniment of the United 
SMeSj after & cession of LonisianiL was not as great over incom- 
plete titles to land as diat of die Kme of Spain ; and although it 
mi^ be true that the latter possessed the power of recalling the 
tide and wanting the land to another person, jet die goyemment of 
die United States was controlled by the treaty of cesnon, by the law 
o^ nations, and by die Constitution and laws of the XJnited States. 
The question presented to tlie officers of the United States was not 
whe^r the ^ng of Spain could haye afbitFEuily annulled the ^jant 
to Mackay, but whedier, at the date of die treaty, it was not entided, 
under die laws and usages of the Spanish goyemment, to be consum- 
mated and^ clothed with the forms of a complete tide. He then pro- 
ceeded thus: 

^^But it was not merely complete tides diat constituted property, 
and proof of property, m land, under the French and ^Ipanish 
TOyemment in Louisiana. Those grants and orders of sury^, made 
hj dielieutenant-^yemor of Upper Louisiana, of which the Supreme 
dourt of Missouri q>eaks with such contempt, constituted property, 
and imparted a ridit of property,.iust as mudi as a complete title 
could do. This has b^ roecincaUy laid down as law by the 
Supreme Court of the United States. In eyery case, on appeal from 
the United States District Coiut of Missouri, under the act of 1824, 
in which the decree of that court was reyeraed, and die claim con- 
firmed, the Supreme Court of die United States based their confirm- 
ation on the eround diat such a tide created property, and, as sudi. 
was protected by the treaty. In. the case of Ddassus v. The Unitear 
States, and in this yery case of Mackay V Widow and Heirs v. The 
United States, Chief Justice Marshall, who defiyered the opinion (ji 
the court, on this head is unambiguous and peremptory. ^ In De- 
laasus' case,' sa^ the chief justice, ' the language of die treaty 
excludes eyery idea of interfering widi property — of transferring 
lands which had been seyered firom the royu domam.' In Mackay's 
case, the chief justice reiterates this doctrine ; indeed, not only me 
reasoned opinion of the Supreme Court of the United States in this 
case, as reported in 9 Pet^ treats the grant to Mackay as haying 
. constituted property,' and a tide to the land described m it at the 
date of the treaty, but the formal decree of the court, as the same is 
set out on the present transcript, exhibits this ground of confirmation^ 
The court, on turning to this decree, as spread on die transcriot, 
wiQ find these words : ^ It i3 further ordered, adjudged, and de- 
creed, that die tide of die petitioners to' the land described in this 
petition to the District Court is yalid by the laws and treaty afore- 
said, and the same is hereby confirmed as therein described, and 
diat die Suryeyor of ^e pubhc lands in Missouri be, and is hereby^ 



Barry v. Gamble. 

directed to sonrey the quantity of land claimed in die place deacribed 
in Uie i>etition and grant, or concession*' 

^<It is manifest, from the terms of this fonnal decre^^ that the 
Supreme Court of die United States took a very different view of 
die origmal title of Mackay from that which the Supreme Court of 
Missouri has presented. I^is difficult to conceive how the Supreme 
Court of Mi^uri, with those opinions and the decree in favour pf 
Mackay before them, could have attributed to die grant to Mackay 
such an unsubstantial and shadowy character, as not only to bie 
liable to be annulled by ibe order of an absolute king, but hy the 
arbitrary fiat of an intendant-gmeral at New Orleans ; and it is stiQ 
more difficult to conceive how, with the treaty before them, and the 
decree of the Supreme Court based upon tnat treaty, they coidd 
have come to the conclusion that Mackay had no property in the 
knd described in his petition and concession at the date of the treaty. 

'^ It is subznitted, merefore, that the Supreme Court of Missouri, 
when diey treat the grant to Mackav, and his title under it to the 
land whidi it describes, as a something which Congress migiit, or 
midit not, as it best pleased d\em, ani ul or acknowledge, do n6^ 
sumdendy respect the decisions o( this hig^ cpurt, or do not under- 
sta ndd iem. 

"We have alreadv observed, that whatever mi^t have been the 
power of the Spaniw long over the grant to Mackay, previous to its 
Deing perfected into a complete tide at New Orleans, the treaty of 
cession, and transfer of the province of Louisiana, for ever protected 
die grantee from its arbitra^ exercise, and that no power was im* 
parted to Congress, other tnan that of confirming tne g^rant if the 
treaty protected it, and which power has had its imal action. 

"but we must deny, with all due respect to the Supreme Court Of 
ACssouri, that, previous to the treaty of cession^ the grant to Mackay, 
and his right sbd tide to the land described m that grants were so 
entirely at the mercy of the government, be that government Spanidi 
or French) as the opinion of the Supreme Court would intimate. 

"The established fact, thajt Mackay's grant created a right of pro- 
per^, rc^pels such a doctrine. It is true, that the King of Spain was, 
m a political sense, and as contradistmg;uished from constitutional 
sovereigns, an absolute monarch ; but it is no less true, that in Spain 
and her colonies the ri^ts of property were religiously respected and 
protected. The * Recopilacion/ the ^siete partidas^ under Spain; 
die custom of Paris, under the kings of France, were as protective 
of private rights, as English or American law could be, and peihaps 
more so. When it is considered, that grants and orders of survey 
in Upper Louisiana were disposed of and adjudicated upon as pro- 
perty ; when the records of that province abimdantly prove, that 
Sroperty of this desc^ription was sold and transferred inter vivos ^ and 
escended, and became distributable aB intestato^ and was the sub- 
ject-matter of last wills and testaments, it would seem to be a neces* 

JANUARY TERM, 1846. * » 

Barry «• Gamble. 

■ I ' l l 

mj coii9e(|Qeiice, that such property was ptx>tected by law, and that 
the tide to it was not at the meNnr either of tibe King of Spain or tttt 
First Consul of France, and still kss of the intendant-general at New 

^^ In erery case (and few can be cited) in which land, previously 
granted by Uie authorities of Louisiana, hu been conceded to a diird 
perscm, it will be found, eidier that the first srant was forfeited b^ 
the noD-perfonnance of a condition, or that the land included in it 
was fomudly rfr-united to the royal domain. It will be seen, by re- 
ference to aU the concessions and ffrants, even those which have been 
consiunniated by die signature of the governor-general previous to 
1796, or that of the intendant-aeneraf and assessor subsequent to 
that year, that, so cautious was me government and c^t^iul, in their 
protection of private vested rights, there was unifiatmly a proviso 
or saving clause in each gran^ declaring that it shouldprejudice 
nobody.'' ^ 

Lamui dien argued, tiiat Congress hadnever intended to annul 
the grant to Mackay ; tluit the 4Si section of the act of 1805, and 
6th section of die act of 1807, did not include it, because they re- 
ferred to, and operated upon, only sudi grants or. incomplete tides 
as bore tlate subsequent to the 1st of October, 1800, whereas die 
giant to Mackay was m September, 1799. And admitting, for the 
sakeof argument, that it was affected by those acts, yet the forfeiture 
was waived by the United States, and his claim placed on a perfect 
leyd widL every odier by die acts of 1824, 1826, and 1828. 
^ With r^[ard to the opposing tides, undfer die New Madrid loca- 
tion Mr. Lawless contended, diat it was void, because laid upon 
lana which was not <^ public land," because it belonged to Mackay ; 
<», if it was public land, it was not land ^^the nle of idiid^ had 
beien. authorized by law," and referred to the opinions of Mr. Wirt 
and Mr. Buder in the ^^ Opinions of the Attorneys-General ol the 
United States," edited by Gilpin, pp. 263, 273, 1199; and dien 
jmoceeded dius:^— 

yTe have endeavoured to demonstrate, that the very tvst element, 
the ^subject-matter itself, of Lafleur's location was wi^&ting ; that tbs 
land covered bv his locaticm was not public land, ana never has 
been since the date of the ^prant of it to James Mackay, in 1799. 

As to the second requisite, that die location should be made on 
land, die sale of which was atithorized by law, die ouestion presents 
itself, by what law? The only law diat regulatea, at that time, 
diesaleofpublicland,wasdieactof February 16d^l811,(2StoI3r's 
Laws, p. 1178.) 

By the 10th secdon of diaiact, die President of die United Statea 
ii andiorized to direct such ^ the puUie landa as diall have been 
•arrejed to be offered for sale, w^ the exception, 

1. Of section No. 16 in each township; 

S. Qf.a tract reserved fertile support of a seminary of learning; 


Barry «. Gamble. 

3. Of all salt sprines, lead mines, and lands contiguous thereto ; 

4. Of all tracts of land, the claim to which has been filed injdae 
tlmCi and according to law presented to the recorder, foir the pur- 
pose of being investigated by the commissioners appointed for ascei^ 
taiiung the n^t of persons claiming lands in the territory of Louisi- 
ana : (by the act of Congress, June 4th, 1812, styled, under ike 
new organization, the Territory of Missouri.) 

It must be conceded, that, under ihis 10th. section of the act of 
1811, ^e President had no authority to diiaect that any land shodid 
be offered for sale, until after the survey thereo£ 

The object of this inhibition was, manifesdy, that the system of 
surveys diould be fully established, and Hie sales and entries in the 
land-offices should conform to the sectional divisions and subdivi- 

It is no less manifest, that another object in thus restricting the 
power of the President was, to ascertain die precise locationof die 
salt ^rings and lead jnines in the territory of Missouri, and the 
auantiQr of land c6ntifi;uous thereto, and which, for the working of 
fliose mines, ought to oe reserved fiom public sale. 

It is equally clear, that a respect ror vested ri^ts, and for the 
trea^ 6{ cession, dictated the reservation of lands included in daima 
fil^, under the requiren^ents of the acts of Congress, in the office oi 
the United States recorder. 

Now, it really seems difficult to comprehend on "wbai prin^le m 
New Madrid locator could treat as land authorized to be sold, aind 
as public land, that veiy land which die President of the United 
States was forbidden so to treat 

The counsel for the plaintiff in eiror respectfully conteSads, (widi 
all deference to the Supreme Court of Missouri,) mat the excqptiona 
and reservations, and conditions as to surveys in die 10th section of 
die act of 1811, are, and were, very gck)d and wise provisions, and 
diat a location, such as that under Baptiste Lafleur, oeing made in 
total disregard and violation of those enactments, is not an irr^;ularr 
ity merely^ but an absolute nulUty. 

The effort by the Supreme Court of Missouri to cure the original 
defects of the location by the operation (^ the act of 1822, has been 
alTC»dy commented on, and the fallacy of the reasoning, it is^ped^ 
established. That act certainly did not cure the defect of a location 
on a salt spring, or a lead mine, or a sizte^th section, still less upon 
private property. 

It mav be that the act of 1822 was concocted and intended to ef- 
fect such impolitic and iniquitous results, but, fortunately, the terms 
of that act ao not justify such ah application of its provisions, and 
certainly die intention of diose "^o applied for and obtained its pas- 
sage is entided to no consideration. 

A proclamation by the Presid^t of the United States was not is- 
sued till 1823, and of course no sale of lands till diat year took 

JAJiVAliY TERM, 194R, 41 

Barry 9* Gamble. 

place in IfiflBouiL The wrreys were not letoraed till 1822. It 
was impoenble tbat the President could hare known what lands be 
Aonld direct to be sold until those sunreys wett returned and ex- 
amined, and approved at Wadiinffton city. 

It was under the 3d section of Sie act of 17tfa of February^ 1818, 
ibat thePresident directed the lands in the district of St Louis to be 
oflored for sale. That law did not, in any^reroect, affect the excep- 
tions and reservations in die 10th section of the act of 1811. The 
3d section of the above act of 1818 provides, that whenever a land- 
office diaD have been established in any of the ^^ districts for tfie 
land-office" created by the 1st section, the President shall be audior- 
ised to direct so much of the lands, lyin? in such district as shall 
have been surveyed according to law, to l>e offered lor sale, with 
die same reservations and exceptions, and on the same terms and 
conditions, in every req>ect, as was provided by the lOtfa section of 
tiie act of 1811. 

Thus, it may not only be contended, that, notwidistanding the act 
of 1811, the l4eadent was not empowered to directs sale until after 
&e pasnge of the act of 1818, v^ch created the machinery of sale, 
andportioned out Missouri into ^' land districts." 

There was no law for the sale of the land in the St Louts district 
at all in force at the date of t^ location 1^ Hunt, under Lafleur, to 
wit, on the 17th of July, 1817. There was, at thit time, in exist-, 
ence, neither a St Louis land district, nor a St Louis hmd-office, 
nor, as has been sbown, any public survey made according to law. 
The land in Missouri (at least in that resion of it in.v^eh Mackay?s. 
grant is located) was, on die 17th of Jmy, 1817, in the same state 
as on tiie date of the last privSte survey made under th^ Spanish 
and American government reroectively. 

How, tiien, can it be succesnuQ^ argued, fliat a location thus pre- 
mature-^thus, notonly not authorized, but in direct violation of two 
acts of Congress, was only an ^'irregularity?'' The case of lind- 

yand others v. Lessee of MiUer, 6- Peters, 672, and the case 
Jackson i^. CSaric and otiiers, 1 Peters, 628, have, it is sub- 
mitted, no bearing or analogy to the case now before tiiis court 
In those cases the question arose on a survey, which was mani- 
fertly only irregular from the want of certain technical formali- 
ties. The surveys, when made, were made on land which lawfidhr 
could have been surveyed. The surv^ were not absolutely void, 
and tiie Supreme Court of the United States therefore decided that 
ihe act of 1807 protected them, and that no location of a Virginia 
m^taiy warrant under (hat act could lawfiilly be made upon land 
whidi had previously been so survmd. 

Ktiiere hieid been a law specifically prohibitine such surveys, or if 
&ey had been made-on land not by law susceptible of such surveys, 
no doubt they would have been void, and the Virginia militaiy war- 
rant would luive been weU laid upon thesL 

Vol. in.— 6 d 2 


Barry «. Gamble. 

It may be observed, also, that those surveys, thourii irregular, 
were made officially, and were based on a substantial fegal ridit in 
the person for whom they were made; whereas the New Madrid 
location in the-present case was, as has been shown, an ex parte pri- 
vate act of an interested individual, who had no other colour of 
claim to the land, and vrzs entirely -at his own ride. If such a loca« 
tion be. declared valid, the locator must necessarilv have exercised, 
in his own case, a high judicial flmction, namelv, the construction m 
an act of Congress, and not only that, but the mnctions of a iury of 
twelve men on a question of fact, and of a witness to prove the met 

1st The ^Mocator" construed the words in the act of 1816, 
'^public land, the sale ef whiqh is authorized by law," to mean land 
wnich, thou^ not at the date of his location authoiized, as public 
land, to be sold, might, thereafter, by possibility, be ^^auttiorized to 
be sold." 

2d. The locator assumed the fact, that land v^ch his location 
called for was '^ public ,land.^' 

3d. The locator assimied the. fact, that the land located by him 
contained neither salt spring nor lead mine, nor vras ^^ contiguous" 
to a salt spring or lead mine. 

4th. The locator assumed the fact, that when the public surveys 
should be made, ttie land would cehainly not incluae, or inteifere 
with, the sixteenth section. 

6di. That it would not interfere v^th seminaiy land. 

6th. That his location would cover no land included in a Spanish 
or French grant, or order of survey. 

This would Ii^ve been a portentous power, indeed, to vest even 
in the New Madrid sufferer; how much more productive of injustice 
and spoliation, if impiirted to a New Madrid speculator! 

The coimsel for the plaintiff in error, therefore, in conclusion, 
submits — 

1st That the title to the specific land in diqrate is prolected bj 
the treaty of cession, and could only be affected or divested by judi- 
cial action; 

2d. That the title of James Mackay and his heirs has been con- 
firmed by the Supreme Court, because of its original validity, and its 
bemff protected an4guarantied by the treaty of cession; 

3a. That previous to the confirmation of the grant to Mackay, the 
land included in it has never been re-annexed to the royal domam, or 
to the public land of the United States; 

4th. That the location by Hunt and Lafleur, on the nthJuIy, 
181T, was not merely " irregular," but was absolutely void. 

5th. That Congress has not g^ven, nor could give, b^ any retro- 
active law, vaHdity as against a vested right to a location vdid (A 

6th. That the acts of Congress of 2d March, 1806, section 4, and 
of Maroh 3d« 1807; section 6, have -no operaliott on die grant to 


Barrj v. Oamble. 

Mackay, inasmuch as this grant bears date previous to the Ist Octo* 
ber, 1800; 

7th. That^ even if.ihe acts of 1805 and 1807 here on the grant to 
James Mackay, the acts of Congress of 1824, and the acts in amende 
ment and continuation of that, have remitted Mackay and his htan to 
all their original ri^t and tide; 

8th. That the patent, eiven in evidence by the defendiint in etror, 
having been ^own to be based on a void location, is itself void at law 
and in equity ; 

9th. lliat the patentr J&avinfl[ been issued in the year 1827, and 
pending the prot^tive acdon of the law of 1824, as respects French 
and Spanish claimants and grantees, the patentee and his asagng are 
bound to that act as by a fts pendens; 

10th. That the protest filed in the office of the surveyor-general at 
St Louis, by the agent of die widow and heirs of J^unes Mackay, 
being three yeais before the date of the patent iunder Lafleur, is no- 
tice to Lafleur and his legal representatives of the claim and giant of 

11th. That the confirmation, hy the Supreme Court, of the grant 
to James Mackay, and the patent m pursuance of Aat decree, which 
has been issued to the confirmees, constitute a full and conclusive 
proof of tide to the land in dispute, and therefore ougbt to prevail 
against the location under Lafleur, and the patent issued and based 
upon it; and 

12th. That the judgment and opinion of the Supreme Coui:t of 
Missouri, being againsta right and tide protected by treaty, and qpe- 
daUy set up and claimed under a treaty and a decree of the Supreme 
Court of tlue United States, oug^ to he reversedr 

Spauldingy for the defisndaut in error, stated the case, commented 
on the nature of. an incomplete tide, with the power of the govern- 
ment over it, and proceeded thus: — 

The position, then, which I assume in relation to the tide set up 
by the plaintifi' in error is, that under the operation «f diflerent acts 
of Con^^ress, the negligence of Mackay, the holder, has extinguished 
the claim. Applying the provisions of these acts of Congress to the 
tide set up by the plaintiff in error,"it is manifest that Mackay's 
claim was barred, by his own negligence, when the tide of Lafleur 
was initiated, and up to the time it was completed by the patent. 

The 1st section of die act of 1805, (2f Story's Lav^s United States, 
966,) provides for the confirmation of incomplete tides bearing date 
prior to the 1st of October, 1800 ; the 2d section makes grants to 
setders who had made improvements by permission of the Spanidi 
officers ; the 4th section authorizes those who held land by complete 
titltt, and requires every person who claimed land, either by the 1st 
section of the act, under an order of survey, dated prior to October. 
1800, or under the 2d section, by a setdement under permiasiQn of 


Barry •• Gamble. 

- • ' ---1 — — 

the Spanbh officers, or by any incomplete title dated sabsequent to 
the 1st day of October, 1800, to file, before the Ist day of Maidi| 
1806, -with the r^rder, a notice in wiitinj^, stating the nature and 
extent of his claim, together with a plat of the tract claimed ; and 
further required that he should, on or brfore that day, ddiver to die 
said recorder, for the purpose of being recorded, eveiy fiprant^ order 
of survey, deed, conveyance, or other written evklence of his claim : 
then, by the proviso to this section, a failure to give the notice, or 
16 lecord the evidence of tide, is made a'bar to me daim, and fbe 
documents which should have been receded are never to be 
received in evidaice against a mnt fi*om the United States. 

The 4di section of £e act of 1807^ (2 Story's Laws United States, 
1060,) extends the jurisdiction of the commissioners to all claims to 
land in their district, where the claim is made by a person vdio was 
an inhabitant of Lonisiana, &c., and authorizes the commissionets 
to decide according to the laws and established usages and customs 
of die Frendi and Spanish govemnic^its, upon dl such cliums. 
lliis section extends me time for filing notices of the claims,' and 
written evidences of claims, to the 1st day of July, 1808, and de- 
clares that the ririits of suich personal as Ami neglect to do so ividun 
die time limited by the act, mall, so fiir as they are derived fix>m or 
founded upon any act of Congress, ever after l>e barred, and become 
void^ and the evidences ef th^ claims diall never after be admitted - 
as evidence in any court of law or e^ui^ wluitever. 

This last section extends the jurisdiction to all descriptions of 
daims, and gives the utmost latitude to the commissioners in seeking^ 
ihe rule by which the claims are to be confirmed, while, at die same 
time, it is just as imperative as the former law, in requiring the 
exhibition of the claim and the recording of the written evidence of 
tide. So, die 7di section of die act of l3di June, 1812, 12 Story's 
Laws, 1260,) contains provisions which have the same effect upon 
claims and evidences of tide not filed and recorded before die Ist 
of December of that year, declaring that the evidence of die claims 
shall never be admitted against any grant fi*om the United States. 

This court has fully considered these acts in the case of Strother 
V. Lucas, it2 Peters, 448, and, remarking generdly upon thdr 

Srovisions, the court sajrs — " Congress, wdl aware of the state of 
le country and villages, wisely and jusdy went to thie extent per- 
haps of their powers, m providmg for the security of private ri^ts, 
by directing all claimants to file their claims before a board espe- 
cially appomted to adjust and setde sSIl conflicting claims to lands. 
They had in view another important object, to ascertain what be- 
longed to the United States, so that sales could be safely^made^ die 
country setded in peace, and dormant titleis not be permitted either 
to distmb ancient possessions, or to give to their holders the valuable 
improvements made b^ purchasers,- or the sites- of cities which had 
been built up by dieir enteiprise. Accordingly, we find that, by 


Barry «. Gamble. 

▼vious ads, the tinle of filing such claims is limited^ afta* which 
fliejr are declared void, as fiir as ^ey depend on any act of Con- 
gress, and shall not be received in evidence in any court, against 
any person claiming by a grant from the United States. 

« These are laws analogous ta acts of limitation for recording 
deeds, or giving effect to the awards of commissioners, for settling 
claims to land under the laws of Hie states ; the time and manner 
of tiieir operation, and the exceptions to them, depend on the 
sound discretion of .the legislature, according to the nature of 
;die titles, ^e situation <^ the countj, and the emergency igriiich 
calls for their enactment Reasons of sound policy have led to tiie 
general adoption of laws of both, descriptions, and their v^di^ 
cannot be questioned. Cases may occur where the provisions'of a 
law may be such as to eall for the interposition of the .courts, but 
tiiese und^ consideration do not They have been uniformhr ap- 
-proved bjF this court, and ouriit to be t^onsidered as settled rubs of 
decision, in all cases to whidi they apply." 

The court>ifaen,' in applying these liaiws to a title as old as 1787, 
at page 45%, says-— ^^ We must, &ep, take t^e defendant as one 
boldi]^ the premises in dontroversy by a grant bom the United 
States, and, as Hxeir grantee, entitled to all ^e protection of the 
laws appropriate to ^e case." — ** The pontiff, dierefore, is brought 
within me two provisions of the laws ; that bv Madame ChancelBer 
not having filed her claim within the time limited by law, she could 
not set up anv claim, under any act of Congress, or be pemiitted to 
give any evidence ^oreof in any court, aj^dnst a person having a 
grant from ^e Uiuted States, under the confirmation of the cmn- 
nuasioners and ike act of 1812." 

In the case now before the court, we have an exemplification of 
die very evils .i^dnch the Court, in the case of Strother tr. LucaJi, 
C(»isidered these acts- of Congress designed to prevent. We have 
a man pointing out a^rtion of unbccupied waste land, as public 
land, liable to oe appropriated by the location of a New Madrid 
certificate-; and after it has been so appropriated and patented by 
the government, w6 have a claim set up, by the heirs of that Inan, 
under a dormant title, which had been held back, notwithstanding 
tbft imperative provisions of these acts of Cimgresii, and stating, on 
ttie fiice of ihea petition, that it had never been presented to any of 
tte tribunals established for the investigation of such titles. 

Had the claim of Mackay hem exlnbited and recorded as the acts 
of CoiiereBs required, then the 10th section of the act of 3d Mardi, 
1811, ^ StcNTv^ 1200^) would have expressly reserved the land from 
sile, until the final action ot Congress upon the daiiki, and a perscm 
attanpting to appropyiate it, by oe bemmof a New Madrid cer* 
tifieafte, wpuld ha^e acted widi nolioe ftAt sudi claim existed ; but, 
as it was not so recorded, Ihete was no evidence upon any Iand« 
record of die country ttiat such chum existed ; and tfie land now 


Barry «• Gamble. 

cUdmed appeared to tYery person who could haye access to tbese 
records, to oe Yadrnt public land, subject to any disposition wbkik 
could lawfully be made of any part of &e public domain. 

{&)auUing then proceeded to comment upon the acts of 1824 and 
1828, and particularly upon those clauses*wldch saved die rig^ of 
adverse parties; after which he took up the title of Lafleur under 
the New Madrid grant, and argued thus:) 

The plaintiff in error, having given in evidence a notice x>r appli- 
cation made by Theodore Hunt, for the location of the c^tificate of 
Lafleur upon the land in question, dated in July, 1817, and a sur-. 
vey made hv a deputy surveyor in April, 1818, with tiiie proclanta- 
tion of the President for the sale of the land in the townsbp, to take 
place in October, 1823, objects to the tide of the defendant in error, 
on the following grounds: — 1st, That, at the time of the location, 
the land' was not public land; 2d, "^hat, if it was public land, the 
sale of it was not authorized by law, and dierefore it was not subject 
to location. 

The first objection of the plsdntiff in error, that, at die jdme of the 
location, the land located was not public land, subject to be located, 
is based upon the assumption that it was Mackay's land, and in- 
volves the consideration of the ars^iiment made against the title of 
Mackay.* If, by die oneration of the diflerent acts of Coneress, 
Mackay's negligence had barred his claini, and shut out his evidence 
of tide fix>m the consideration of courts of justice^ the land was in 
every smse public land, subject to such disposition as the ^vem- 
mient mi^t diink proper to make of it To say it was still his land, 
as against the fi[ovemment and4be grante^ of the eovemment, is to • 
assert that his tide remamed valid, notwithstanding enactments vridch 
annulled it, on account of his neglect to comply with the requirem^ijt^ 
of law. It is unnecessaiy further to pursue the answer to this objec- 
tion of die plaintiff in error. 

The second objection, upon which most stress is laid, is, that at 
.the time of the location, this land was not of the description liable ta 
location — ^that is, land die sale of which was authorized by law. 

It may be of importance to determine, if we can, firom the evidence 
in this case, when the location was made. 

Hie plaintiff in tot)r has fallen into die mistake of svtpposin^ that 
the notice or application for the location, made in July, 1817, is die 
location itself. * This error misht have been avoided by an ezamiiUH 
tion ^f the decision made by diis court in BagneU and others v. Bro- 
derick, 13 Peters, 436. In that case, the court held, that thb notice- 
or appfication forms no part of the tide, and is not part of the evi- 
dence on which the eeoeral land-<^Kce acted, but the patent issued 
on die plat and certificate of tha surveyor, returned to die recorder's 
office, and whidi was by lum reportMl to the general land-o£Sce. 
Again, the court says:— -<* The only evidence c£ the k)oation recog^ 


Barry «. Oambl*. 

msed by the goPf emmeiit as an appropriatioiiy was the plat and certi- 
$c«te Of die siirreyor.'' 

As the notice or application is not die location, we next look to 
the sunrey spread on ue record: this is dated in April, 1818, as the 
time when the deputy sonrejror of die United States mrae die survey 
on die gronndy.but when this sorvey was returned to the office of the 
snryeyor-general, or "Mien it was approved. in diat office, does not 
nppear^ and especially it does not any^ere appear on die record 
"men die surveyor-general returned to the recorder of land-titles die 
plat with die notice, desigiiatin|B^ the tract located, as required by die 
2d section of the act, nor vdien the recorder issued the patent certi* 
fieate under the 3d section. 

In this state of the evidence, it cannot be known whether the sur* 
vey made by the -depu^ surveyor, althou^ dated in April, 1818, 
yna returned* or, if returned, was improved in the office of the sur- 
T^r-general, at any time anterior tp the proclamation by the Presi- 
dent tSr the sale of me land in the towndup. 

It ^^lears, by inspection of die survey ffiven in evidence, diat it 
was made m&t the public surveys liad estabfiiBhed die towndiips, &c., 
asH descrflies the land as situate in two townships. The question^ 
therefore, which the plaintiff in error has attempted to raise, is not 
presented by die record. But it is not my purpose to avoid the <fi»- 
cnsaion of me qtiestion, if we can really get it into a tangible, form. 

"Diet question, if I have understood the ar^piment made in behalf 
of die plaintiff in error, is, vdiether the patent issued to Lafleur is mot 
Toid, because the survey wm made for him at a time when die sale 
of the land vras not authorized by law? 

If wetumagidn to thelanMase of the act, we find that the words 
upon iHndi most stress is laid— *'the sale of wUch is audibrixed by 
farw** — are used astdescriptive of the land to be located, and have no 
lefisrence to time. If there were, thenyclasses of lands which, bylaw, 
^rere reserved fiom 'sale so diat no officer of the govemmait could, 
widiout a violation of law, attempt to sell them, and there were other 
pubKc Imds in relation to vdiich the executive of the United States 
was abeaify intrusted, by law, with the power to tiirect the survey 
and nle, so that no fiurther audiority was needed, we have the ktj to 
die ri^t undCTrtanding of the wonu employed in the act of 181& 

The act of 3d March^ 1811. 2 Story, 1197, is diat which diiects 
Ae sale of the public lands, and makes the reservations firom sale. It 
is upon this act, and upon diose which establish land-offices in dif- 
ferent parts of MQ»eun, and refer to diis for the direction of die dif« 
ferent offices, that the sales o( land in SGawuri have takrai place. 

The 8th section <^ this act empowers die President to direct die 
sureyor^neral to cause the pubhf lands in the fenitory of Louisiana 
to be surveyed. 

Hie 10th section empowers the Preodent to direct the land, when 
snrvr^ed, to be offoed for sale, and prescribes die duties of die dif- 


Barry 9* Gamble. 

ferent officen, when the Presideiil has designated die days q( sale. 
TIds section reserves from sale — Ist^ section number 16 in each town- 
ah^; 2dy a tract for the siupport of a seminvy of leanunc; 3d, sah 
^tpntifp |knd 1^ mines, and lands coiitiguous thereto ; idi^ hj tfie 
proTiaoto die section^ ^^ no tract shall be oflered for sak,the.clami to 
which has been in due time, and according to Jaw, presented to the 
i^ecorder of land-tides in the distiict of Louisiana, and fil6d in his (tf* 
fioe, for the purpose of being inyestigated by the commisrioiV^rB mh 
•pointed for ascertaininff the ri^its ol persons, claiming lands in the 
: of Louisiana.'' This section authorizes the sde 

territory of Louisiana.'' This section authorizes the sale of the i 
ot pulmc landf and forbids the sale (^particular descriptions of land: 
we haye, then^ die division of the land into the two classes — ^tfaose 
tlie sale of wmdi is audiorized, and those, the sale of which is not 
authorized; and the. act of 1816 audiorizes locations to be made on 
lands of one dass, and not on lands of Ifae.odier. 

Ulis construction is further sustained by the designation of land, 
subject f o the location, in th$ present tense: '^the sale of which is 
anuorized 1)7 law." In 1815, when Ais liiw was passed, a veiy 
large portion of di^ land in the territeiy of Missouri had not been 
suirejred^ so diat i£ ihe intentipnof Congress was to mite a survey 
of the public lands a pre-requinte to leeal locations, by the use of 
diese words, then, as it was evidendy aesigned to gire a range for 
these locations as extensive as the tertitoiy, the kw^affe empfoyed. 
in^ad df being "the sale of which is authoiizedHby law," would 
have been, die sale of which is or hereafter shall be authorized by 

As die act speaks of the authority then.esistinfi; by law for die safe 
of the public land, it evident^ ezdudesvtfae i&a diat the sale 'vas 
only authorized when the President had issued his proclamation^ 
die sale: for at that^time the President had never issued any procfe- 
mation for any sale in the territory of ifissouri. 

The other mterpretation of th^ words will, as I believe, ))e coi^ 
fldered as eipresBuig the meaning of Con^sess; that is^ ^lat diqr re- 
fa fo the tv^o classes ef land, (me of which was then authorize by 
hkw to be sold, and die odier was expxeaity, by law« •reserved tc^Sa 

I am aware that great reliance has beep placed on die official 
qnnions ot Mr. Wirt, when he was attorney-general, riven in r^la* 
lion to dieae locations, and also upon the opinion of Mr. jButlei;, given 
i^>on this very daim.of Mackay, after its confirmation, and upon die 
opposing claim. These were, certainly, gentlemen epinent in die 
profosflion, "^ose opinions- are entidcd to hi§^ c o n s ide ra tion, but 
still they are not condiunve authority. 

I have but a single remark to make upon Mr. Butler's ^hnon, 
and &at is, that m is totally mistaken as to a cardinal fiict in Ihi 
OMe. He asBomes that Madcay's daim was filed and recorded ac- 
cording tolaw, so diat die land was expressly reserved firom safe by 


Btrrj «. Oaiiibt«. 

ibt 100k section of &e act of 1811, and ttiat therefore it was not 
idycet to location. Now, if Bfr. Butler had read the petition on 
srfnch the confinnation was procured, he would have seen it there 
stated, that "die claim had never been filed nor recorded according to 
law, and that, therefore, the land was not only by law public land, 
but that it was not, and nerer had been, reserved fi*om sale. 

On die opinion of Mr. l¥irt, I have to remark, that he appears to 
ha(?e 61kn mto die mistake of supposing, ^t the notice or applica^ 
lion of die party for a location was the locadon kidf» and to have 
directed his arguments chiefly against diat instrumexit. it is true, 
Aat Mr.' Wirt aigues against surveys made under New Madrid cei^ 
tificales wtich dm not conform to the Hnes of the public surveys; 
iMit it is to be observed, diat this conformity to the public surveys is 
nowhere required in the law ixdiich reflates these locations; and 
aldioudi it may be very convenient, and be'ver]^ consistent widi die 
Ijenend purposes of the gQvemmen^ in maintaining regular subdivi- 
sums of the public lands, it is*nowhere required as necessary to the 
▼aHdity of a mcB&on. 

The e£kct produced by die opinions of Mr. Wirt was the passage 
4>f die act of 26di April, 1822, 3 Stor^, 1841, which directed, diat 
locations made under these certificates, if made in piuiraance of the 
provisions of the act of 1815 in other respects, should be perfected 
into grants, in like manner as if they had conformed to die sectional 
or quarter-sectional lines of die public surveys, and the sales of die 
fiactions made by such locations should be as valid against the 
United States as if the firactions had been made by rivers or odier 
satural obstructions. 

The great alignment of Mr. Wirt a^ain^t the locationa which were 
Diade before the jpublic surveys wa& mat they would not conform to 
Ae legal subdivision of the public lands, when they dipuld be sur- 
veyed, and thus confusion would be introduced ipto the system. 
Now, diis act of 1822 takes the location as made, and the confusion 
^ ezistiBg; and directs the issuing of jpatents, notwithstanding this 
want of coiiformity to the lines of sections. 

Tet it Is argued, that because this act ratifies die locations vfhidk 
do not conform to the public surveys, only when diey are, in other 
reqpects, in pursuance of the act of 1815, die objectioi) still is to be 
made, &at mey were made on land which was not surveyed, and 
fte nie <tf v^ch was consequendy not authorized by law. 

"This is only coming back again to the discusaon of what lands 
were audiorized to be sold; which, I think I have diown, was all 
j&ot reserved from sale. It is beyond dispute that the land in contro- 
versy was not reserved firom sale. 

But what is the real extent of the objection we are considering? 

It is this: applications were made to locate portions of the pubfic 

lands bdbre the public surveys; locations have been so made, and 

diey do not contorm to the sectional Unes, when they have been 

Vol. m.— 7 £ 


Bsrrj «. Gamble. 

ifterwards nm. The act of CongresB declares tUat this shall' be no 
objection to the locatioDS, jet it is agreed now, that ahfaou^ the adt 
bas waiyed all objection to the result prodnced, it sdU-ietaiDS tbe 
objection to tiie cause Vhidi pjrodaced it; so that, substantiallj, 4ie 
act has accomplidied nothing, and the United States, aldioufi^ tbejr 
have sold' the sairoondin^' fractions, and have waived all objection 
to the want of confonnilyin the location to sectional lilies, and liare 
{Ndepted Ibe land as located,'ina7«t31, in aU cases where the api>li- 
cationswere made before ttie public sunreys,, come in and claim 
the land; or, diat an intruder or temsser on the land which the 

Eyemment has tii^s patented, may snow ftat the wplication for the 
»tion of the land was thus made before the public sunreys, and 
set u(> the pretence that the patent is Void* 

This ease would present some most remarkable features, if such 
an objection could preyaQ. 

Hat is an application for flieloca&on'of a tract of land, bounded 
on 4iree aides by known Spamsh sunr^rs, and to run to a point in 
tte line of ano&er Spanidi sunrey. The only nefw Ime to be run is 
that on one aide, which is neoessaiy ta fix ^ quantity. A wrvej 
is made under that ^qpH^atibn calBng for die townships and ranges, 
yHiich shows that the survey was not made before &e United States 
sunrieys. A patent is issued by the gpyemment^ and in a suH 
brou^ by a purchaser under that patent it ia objected, not that the 
land was- resenred from sale — not mat locatioii tould have been d^ 
ferentiy made if t& goyemment juryeys had beoi a'Aousand times 
run — ^not that it does not conform to boundaries'whidi would hacwt 
fixed its limits wheneyer it mi^t have been made, (sedb:ig that it is 
bounded on three sides by est2[>liahed Spanidi sury^^ but that the 
4^1ication was made prior to the public suryeya, ttaeforetfae appli- 
^on was yoid, and me survey was void, and die location was yoid« 
and the patent w^ void, and but for Mackay's confirmation, tiie land 
would be mere vacant, unaroropriated land; and though an owner 
of part of the land, under the JUfteur patent, has been more thapi 
twenty years in possesnon und^ tile title of Lafleur, he has dl the 
time be^ a mere trespasser! 

The^ cases in which tl^p validity of patents have been examined ifk 
suits at law, are too fiumliar to the^ court to need any extended re- 
made from the counsel. . From the case of Polk's Lessee v. WendeB, 
to the present time, the principles upon jsehich patents h^ve been ad- 
judged void, have been wbeie the state has not had title to iht land 
craved; where the officer had no authorit]^ to issue it; where the 
uind has been appropriated by a q>ecies of &le which could not 1^ 
law appropriate it; where the tmtent has issued against some cxpiess 
prohibition of law, or for land resenred froin, the disposition oftt at* 
tempted by the latent. The patent to Lafleur is within iKhherof 
Ihese classes. The whoK of the objections now made to it would 
be answered to the satisfaction <^^ plamtiff in error, if the d^uty 

JAN6A.RT TEllli. 1646. 6t 

^w ■ I I " I ' ■ ■ r ■ ' ■ • ' 

Barrj 9. Oi^nblt. 

m nf f j uf m 18S3 had run arouxid Oe asine liiies ^dch were jim in 
1818, and thai had sat down and made precisely 1he,san^ plat, and 
die same' fieldrnotes. And how is it known that he did not? • Hie 
pordiaaerunder Linear ^ve no eri^^nde about a survey. Thrdui- 
Te^ of 1818 was oven m evidenoe to iippeach die patent; die {>a> 
tent itself implies mat all wab done which, wiHtneceasaiy. to its being 
regularly issued. 

1 realW fed that I would be trifling widi die court to make a more 
eztendea argument in die case. 
^ Th^rq;KMition8 1 maintain are the following: — 

1. Tnal bpon this record die Madcay tide commences, as against 
die ^Vf»^"* in error^ widi the confirmation, as no document is 
shown anterior to that confinfiation ; and die confirmation does not, 
as against the drf<pndant> m eriur^.esjULbliQh the eriat^nce of any prior 

5. Tliat if die' eziitence of a Renume Spanish order of survey 
flbpuld be assumed, aa against die defiuidaBt in errar, all claim under 
it was bured bt the acts of Congre«u^ 

. 3. Hist if the ex;istence of such order of survey diould be as- 
aumed, whedierdie clain^ im&r it were barred or iot, the confirma- 
ticm of die claim Is, by die act under whtcfa it was obtained, express^ 
ly poi^ned to die Mfleur tide. 

4. That die pat^t of Laf^ur is the better legal tide, unless there 
is some de&et mat renders die patent Toid. . 

6, That die Lafleur tide is above. e»ce pti any icgnly, nfid eC> 

Mr. Justice CAlltdN delivered: ttieopmion of die court. 

The first question in order is, whedier;die patent to Lafleur is a 
' vaBd tide as against die United Stated, when standing alone. 

By diecerfiSpateof there(k>rderof umd-tides 9tSt Ix>ui8,Lafle|^ 
^was entided to 64D acres of land iu compensation for lands of Us 
injured by the eardiquakf in I^ew Madrid countv. On this, the 
survey of April, 1815, is founded. Its return by &e surveyor, wiJ^ 
a notice of Ibcatioh, to the office of th^ recorder, was the firet appro- 
priatbn of the land ; and not the notice to the surveyor-general's 
office. requesting the survey to be made, as thi« court held inBag^' 
ndl V. Broderidc, 13 Peters; 450. 

Township 45, in vdiich the land Granted to Lafleur lies, was laid 
oflT into sections in 1817, and l8lo ; and we suppose before the 
anirey for Lafleur w^ made, as his patent, and the survey on 
which die patent is founded bodi refer to the township by number 
as induding the land. When die return of tHe township- survey was 
made to the surveyor-general's office does not distinctly appear, 
ahhoug^ it is probable it was after Lafleur's location had tieen made 
widi the recorder. 

The location was in irregular form, and altogether disregarded the 


Barry v. Gamble. 

section linesi and ordinary modes of entry under die laws of the 
United States. This circumstance lies ieit the bottom of the contro- 
versy. The general land-office at Washington refused to issue a 
Stent on New Madrid locations thus sunreyed.. The secretary of 
i Treasury on the 11th of Majr, 1820, and a^dn on the 19th of 
June^ 1820, called on the attorney-general for his opinion on tiie 
validity of such locations, (2 Land-I^ws^ and Opinions, 9, 10,) iias 
officer replied — ^' That the authority given is, to make these loca- 
tioDS on any of the public lands of the territory, the sale of which is 
authorized by law ; but the sale \s not authorized by law untQ the 
sectional lines are run, and consequently all locations previously 
made by these sufferers are unauthorized.'' 

To cure this defect, the act of 1822 was passedf whi^ provides, 
that locations made before that time, under the act of 1815, if made 
in pursuance of the act in other respects, should be perfected into 
grants in like manner as if they had conformed to the sectional and 
quarter-sectional lines of the public surveys ; and that the fractions 
previously created by such locations should be deemed legal frac* 
tioQS« subject to sale : But that after the passing of the act, (26th 
April, 1822,) no location of a New Madrid claim should be permit- 
ted that did not conform to the sectional and quarter-sectional lines. 
The opinion of the attorney-general appears to have .been favou^ble 
to locations in conformity to the public sui;veys actually made, bdbre 
their return ; until returned however, and received at the surveyor- 
general's office, they could not be recognised as legal public surveys; 
and in this sense Congress obviously acted- on the opinion, and 
course of the general land-office, in pursuance of it. . 

The principal difficulties standing in the way of issuing patents, 
seem to have been the following : There were New Madrid locations 
made on lands not then surveyed ; locations made after the lands 
had been surveyed, but before the surveys were returned ; and loca- 
tions made on lands surveyed,- and the surveys returned ; in each 
case, disre^dful of the section lilies. But all of them were on 
lands that nad been surveyed, and the surveys duly returned and 
sanctioned, when the act of 1822 was passed. - On this state of &cts 
Congress acted. No distinction was made among the claimants ; 
all mictions created by prior locations, in existing public surveys, 
were declared legal, and subject to sale ; the fractions produced, 
could not be legal unless the locations producmg them were equaUy 
so : In this rcspeA, therefore, such locations were binding on the 
United States from the date of the act. It is insisted, however, that 
until section No: 45 had been offered for sale by the proclamation of 
the President, ho entry could be made on it by a New Madrid war- - 
rant ; and in this respect Lafleur's location was void before, and not 
cured by, the act of 1822, but expressly excepted : that Congress only 
acted on one defect, that of disregarding the sectional lines,and exclude 
ed aD others. Township No. ^ vras first advertised for sale in 1823. 


Barrjr 9. Oamble. 

In addition to ivbat hat been said in answer to &e argument, it 
maj be remaikedy that tbe NewBfadrid suflferers were preferred 
ddimants; Uke otibers haTing a legal preferenpe, diej had a rig^t to 
buy, so soon as'&e officers <tf the government had by law Ae power 
to sell ; and sales could be made founded on pujuic Borvtys. It 
'Could. not have been intended bv Congress that the sufierer should 
surrender his imured claim, get his warrant from the recorder, and 
then be compelled to wait until after the public sale, which mig^ 
sweep all the lands out of idiidi he could obtam a new home. Aiid 
80 the act df 1816 was construed and acted on at the general land- 
(rfSce. No objection seems to have been made diefe on tiie ground 
that these claims had been entered on lands not previously oflfered 
for sale at a:uction ; as the Preaidait mig^t, or might not order tibe 
nle. We &ink fliis nlaiidy inferrible from the foUowin^ order. 
On the 9th of April, lol8, an act was passed limiting applK^tions 
to the recorder, for New Madrid warrants of survey, to me 1st of 
January, 1819. The comnussioner of the land-office hcre^ wrote to 
die recorder at St Louis, enclosing a copy of the act, a few days 
lifter it was passed, saying: 

<< TUs act authorizes me reception <tf claims to die 1st of Jaiiuaiy 
next ; but as several public sales wiS take place previous to diat day,- 
jou must not issue any patent certificates to those claimants after ttie 
commencement of such sales, unless the claimant producet a certifi- 
cate from the register of the land-office to show that the land has not 
been sold. Should you issue any patent certificate to those claim* 
ants previous te the public sales, you will furnish the register of the 
land-office for the district in which the lands lie wifli a list of the 
tracts for which you have issued patent certificates, that he may 
reserve d>em firom sale.'* 

The 3d section of the act of 1815 makes it the duty of the recorder 
to deliver to the claimant a certificate stating the circumstances of the 
case ; that is, that the claim had been allowed, survey^, and record* 
ed in due form, and that he was entitled to a patent for flle tract de- 
signated: this was to be filed with the recorder if satisfactory to the 
claimant. Tlien the recorder was bound to issue the ** patent certi- 
ficate,*' above spoken of, in favour of the party, which, beinc; trans- 
mitted to the commissioner of the general land-office, entiued the 
claimant to a patent firom the United States. 

By the foregoing instructions, patent certificates, previous to the 

Eubuc sales, were contemplated as due to claimants for lands entered 
ut not previously offered. for sale; and we cannot doubt did exist 
in large numbers. The^, of course, were sanctioned at the land- 
office. Nor is' the consideration of this question presented to this 
court for the first time. Pettier's claim, in the case of Stoddard v. 
Chambers, 2 How. R. 317, was like this in all its features except 
one. It had been located on the satme land covered by Bell's con- 
cession made by the Spanish government, which had been filed and 



Barrj «> Oamblcw 

recorded in 1808, but not recommended for confirmation by die com^ 
miBsioners at St. Louis, for 'want at occuDation and cuttiTadon. By 
die act of 1811, until the decision of Congress was had, the land 
coyered by the Spanish claim could not be offered for sale, and this 
restriction was cbndnued. Pettier's New Madrid location was made 
in 1818, On the land reserved fitmi sale in favour of Bell's.conces- 
sion, and this court hdd the New Madrid locatioii, and the patent 
founded on it, void, because the sale of die land '^ was not autfacnrized 
by law,'' and the title of Pettier in violation of the act of 1815. But 
&e court says: — ^^Had the entiy been made or the patent issi^ 
after the 20th of May, 1829, when the reservation ceased, and be-> 
ferejt was revived by the act of 1832, die tide of the. defendant 
eould not be contestedi" 

' For the reasons asogned, the court was of opinion Pettier's claim 
would have been valid, had Stoddard's not 1>een interposed. It also 
lies in towndiip No. 45. So our opinion is, that Lafleur's claim was 
rendered vaEd by the act of 1822, unless it can be ovardirown l^ 
the interpofition of Mackay's. 

2. Tlus raises the inquiry into itBivalidit]r in opposition to Lafleur's. 
Tliat, standing alone, Mackay'sLwas valid against die United States, 
is in eflect decided by this court in Pollard v. Kibbe, 14 Peters, 
355, and Pollard v. Fdes, 2 How. 601, and is free from doubt. 

Lafleur's location was made in 1818, and his patent issued in 
1897. Mackay's claim was first filed for adjudication before the 
District Court (U. S.) of Missouri m 1829. Up to this date it had 
stoo4 as an incomplete claim, reauiiing confirmation by diis govern^ 
ment before the tide could pass mm the United States; to accom- 
plish which a decree in its fitvoiir was soudit in the Pistrict Court, 
and finally obtained here on appeal; in comormity to which a patent 
was obtuned. 

As the proceeding und^ die act of 1824 was ex parte^ Lafleur 
was not bound by it any further than die legislation of Congress af- 
fected his lights; and* me auestion*i8, how far were they protected, 
as against incomplete tides Drought before the District Court. 

By the act of March 2d, 1805, sec, 4, certain French and ^^P^piah 
claimants were directed, on or bdbre the 1st day of March, lo06, to 
deliver to the register of the lahd*office, or recorder of land-tides, 
within whose district the land might lie, every grant, order of survey, 
deed, conyeyance, or other written eyidence of claim, fo be recorded 
in books kept for the purpose. " And if," says the act, " such per- 
son shall neglect .to deliver such notice in, writing of his claim, or 
cause to be recorded such written evidence of the same, all his rig^t, 
so far as the sam^ is derived from the two first sections of this actj 
diaU become yoid, and fcr ever thereafter be barred; nor shall any 
incomplete grant, warrant, order (^survey, deed of conveyance, or 
other written evidence, which shall not be recorded as aboye di- 
rected, ever after be considered or admitted as evidence, in any 


Barrj v. Oambl^ 

eoQit of the United States, against any grant derived ^m the United 

. By tbe act of April 21, 1806, sec. 3, supplemental to die act of 
1805, tbe time for filings notices of claims and the evidence tfaereofl 
was extended to the first day of January, 1807 : but tbe rij^ts crif 
sucb persons as sball neglect so doing within tbe time limited by tbe 
ac^ it. was declared siiould be barred, and tbe evidence of ihar 
damis never after be admitted as evidence; in tbe same manner as 
liad been provided by tbe 4tb section of die act to whicb tbat was a 

By the 6tb section of die act of March 3, 1807, furdier time for 
fiKBg notices and evidences of claims was fi;iven till tbe 1st day of 
Jufy, 1806: But all benefit was cut off m>m tbe claimant, u be 
fidled to ffive jiotice qf bis dum, and file bis tide papers ; so fiv as 
the acts of Congress cq^ted in giving tbe title aiw sanction tbroudi. 
the affency of commisfionera— and ever after tbe nrst of July, 18w, 
die <&m was baned. 

It 18 insisted, bowever, Mackay's daim is not embraced by tbe 
act of 1805, and to irtdch die acts of 1806 and 1807 refer. Tbe 
act of 1805 does govern tbe fiiture legislation, interposing a bar. 
By section 4, Fiencb or Spanisb grantsi made and complete before 
tbe Ist dav of October, loOO, mimt, or migbt not, be filed ; as tbe 
trea^ of 1803 confirmed tbem, tney needed no furtber aid : But 
complete grants issued after tbe 1st day <^ October, 1800 — and 
incomplete titles, bearing date after that time, << sball be filed," says 
die act Madcay's claim is of neitber description; it was an incom- 
plel^ tide; being a permit to settle and warrant of survey, widiout 
any setdement or survey baving been made ; but dated before tbe 
1st of October, 1800. 

Tbe act of 1805, section 4, fiirtber provides, tbat every person 
daiming lands by virtue of tbe two first sections of that act, snould, 
by tbe 1st day of S(arcb, 1806, file bis notice of claim, title papers, 
lie., otberwise die daim abould be barred. Mackay's claim ^^ was 
a duly rc«|istered warrant of survey," withm tbe words of tbe 1st 
section of tbe act. Tbat tbe United States bad tbe power to pass 
sudi a law we tbink firee fix>m doubt; it beins; analogous to an 
ordinary act of limitation, as tbis court beld in Strotber v. Lucas, 
12 Betas, 448, to wbicb notbing need be added here. 

As to tbe United States, and all persons claiming under them, 
Ibckay's claim stood barred fitom die 1st of July, 1808, until the 
passing of the act of May 26, 1824, by which the bar was removed 
•0 fiur as tbe ^vemment was concerned. The time for filing claims 
imder this act was extended by another passed in 1826, and again 
by diat of May 24, 1828, to die 26di day of May, 1829 ; before die 
expiration of whidi time Mackay's claim was filed in the District 
Court ^U. S.) of Missouri, and.eventuaUy confirmed in tbis court on 
mical: And die question is, did die acts of 1824, and 1828, and 


^arrj «. Gamble, 

the proceeding had under dvem, afiect Lafleur's title. By Ifae lltfa 
section of the act of 18^, it is provided, ^^ That if in any calse it 
shall so happen, that the lands, tenements, or hereditaments decreed 
to any claimant under the provisions of thiis act, shall have been sold 
by the United States, or odierwise disposed of, it shall be lawful for 
ibe party interested to enter the like quantity of lands, in parcels 
conibrmable to sectional divisions and sub-divisions, in any land- 
office in die state of Missouri." 

The act of 1828, to continue in force the act of 1824 for a limited 
time, and to amend the same, declares (in section 2) — << That the 
confiimadons had by virtue of said act, and the 'patents issued 
thereon, shall operate only as a relinquishment of title .on part of the 
United States, and shall no wise afiect the right or title, either in law 
or equitv, of adverse claimants of the same land." 

The foregoing are the conditions on which the bar was removed ; 
diese Congress certainly had rig^t to impose, and thereby give a 
preference to an intervening title acquired during the existence of 
the bar. 

Lafleur.was a claimant with a good title in equity, vdien this act 
of 1824 was passed ; this he well mi^t perfect mto a patent, as hjs 
&imtj was expre^y protected by the -act of 1828^ and by implica- 
tion m that of 1824, (section 11 ;) neither the patent or entr^ was 
afiected by the proc^dings had on Mackay's claim in' the District 
Court of Missouri, and in this court ; nor by hia patent issued pur- 
suant tibereto : It follows Lafleur's is the better title, and that the 
decision of the Supreme Court of Missouri must be afiErmed. 

Mr. Justice McKINLEY. 

I dissent from the opinion of the majority of the court, in 6ii8 
ca^ for the following reasons : 

First According to the act of the 17th of February, 1815, chap. 
198, <^ persons owning Ismds in the coimtv of New Madrid, in me 
Missouri territory, with the extent the saia coimty had' on ihe 10th 
day of November, 1812, and whose lands have been materially 
injured by earthquakes, shall be, and they are hereby authorized to 
locate the like quantity of land on anv of the public lands of said 
territory, the sale of wmch is authorized by law." Th&section lines 
of ihe land had not been run on the 7tli of July, 1817, when die 
location on the New Madrid certificate, under wbich Gamble claims, 
was made. The sale of the land, mcludiiig; this location, was not 
authorized by law', until the year 1823. The 1st section of die act 
of the 26th April, 1822, chap. 40, could not have legalized the loca- 
tion, because die land was not then subject to sale ; and because 
that section only authorized grants to isstie in like manner,, as if die 
location had conformed to the sectional or quarter-sectional lines of 
the public surv^s, if made in other respects, in pursuance of the act 
of the 17th of February, 1815. Now as &e location had not hem 


Dickson «. Wilkinson. 

made in pursuance of &at act ; and as the 2d section of die act of 
tiie 26th of April, 1822, declared <<.That hereafter the holders and 
locators of such warrants shall be bound, in locating them, to con- 
form to 1be sectional and quarter-sectional lines of the public surveys, 
as nearly as the respectiye quantities of the warrants will admit, and 
an such warrants sball be located within one jear after the passage 
of this act ; in de&ult whereof the same shall be null and void ;'' 
and as no location and survey were made in conformity with the 2d 
section, die warrant, survey, and patent, are utterly void. See 
Lindsey v. Bfiller, 6 Peters, 676. 

. Secondly. The decree confirming the claim of Mackay's heirs, by 
the Supreme Courtof the United States, imder die treaty, was a full 
and ample admissiOh, that, the United States had no ri^t to the land 
covered by that claim. The dde which they acquired to this land, 
imder the treaty, was, therefore^ heldl)y them in trust for Mackay's 
KKirs, or any odier person havmg a l)etter tide, under the treaty. 
The decree of confirmation related back to the date of the conces- 
flbn, by the Spanish eovemment, to Mackay, and made the tide as 
complete as if it had been completed by that government before the 
treaty, notwithstanding the several intervening acts of limitation 
pass^ by Congress. 

Thirdly. The location, survey, and patent, under which Gamble 
daimed, oeing void, the 11th section ot the act of the ^th of May, 
1824, chap. 173, did not apply to this case. Because^ in the lan- 
guage of the section, it did not ^^so happep that the land" had 
been sold or otherwise disposed of by me tlmted States. There- 
fore, Mackajr's heirs, oc those claiming under them, were not au- 
thonzed, and much less bound to enter other land in heu of that 
confirmed and mnted to them by the decree and patent. 
Mr. Justice St6by and Blr. Justice Wayne concur in diese rea^ 

Jaibs -N. Aim Livi Dickson, Plaintiffs, v. William H. Wilkinson, 
AnmNnTKATOR OF John T. Wilkinbon, dsobasid. 

There was a jadgmeat against an administrator of assets quando aeeidmiU. 
Upon this jud^ent a trirtfadoi was issued, containing an averment that goods, 

chattels, and assets had come to the hands of the defendant. 
Upon this teirt faeiM there was a judgment by defhnlt; execution was issued, 

and retomed **fmOa bona,** 
A $drt faeiat was then accorded against the administrator to show cause why 

the plaintifik should not have execution **de bonis prapriu/* 
fi was then too late to plead that the averment in the first §eirtfaeia$ did not 

state that assets had come into the hands of the administrator subsequent to 

the judgment ouamh. 
A jMgmeni by deianlt Igainst an executor or administrator is an admission of 

Assets to the extent eliAiged in the proceeding against him. 

voL-m.— 8 


Dickson «. Wilkiason. 

■ ' ■ ," > ' — — 

If ai>srt]r tail to plead matter in bar to the original action, and Judgment paaa 
againsi^iim, he cannot .afterwards plead it in another action wonded ott that 
judgment; nor in a snrt/aciaf. 

A demorrer reaches no fbrtner back than the proceedings remain inylr^ or im» 
der the control of the court 

This case came up from &e Circuit Court ikibe Ibited States lor 
tfie middle district of Temiessee, upon a certificate, of dinakm m 
opinion between the judges. 

All the &cts which are necessaiy to an understanding (tf the poiot 
are stated in the certificate,. as follows: — 

The plaintifls, 9i September term, 1837, widi the defendant's cion* 
sent, had a judgment of assets -juomid occiderinL .On'die 2d of 
October, 1838, upon their suggestion of assets come to the defaid- 
ant's hands, a scire facias was accorded them to be made known 
to the defendant to siiow cause w^hy Ifaejr diould not have execution 
ot those assets. This scire /ados was issued on &»IOth of January, 
1839, and after reciting the jvLdfanexktquando^ it contained the fi&- 
lowine, and no other, averment of the coming of assets to the defend- 
ant's hands: — ^^ And whereas, afterwards, to wit, on the 2d day of 
October, 1838, it was suggested to the said court, on bdialf of the 
said plaintiffi, that goods, diattels, and assets had come to the hands 
of the defendant, sufficient to satisffr. the said jud^^ment; and it was 
ttiereupon ordered. by said court, that a scire /aaas isscte, and we 
therfeore hereby command you^ &c." This* writ was made known 
to the defendant, and the i)faintifla thereupon, by his defiaiult, at Sep- 
tember term, 1839, had judgment of execution of the intestate^s 
^oods in the defendant's hands to be administered, if so mudi, and 
if jiot, then the costs de bonis proprOs. ,0n1he 9th of October^ 1839^ 
execution was issued accordingly, and returned to March rules, 1840, 
nulla bona J except as to the costs, which were levied de bonis proprUs. 
A scire Jacias was how accorded^ against the defendant to Aow cause 
why the plaintifis should not have execution of their demand de bonis 
proprOs: and this writ was issued, made known to the defendant, 
and returned to September term, 1840, when he appeared, and 
pleaded to it fully adminisJtered, and a special blea, that the insol- 
vency of ihe intestate's estate had been sug^jgested to die proper Ten- 
nessee authority, and a bill in equity filed m a state admin- 
ister hi^ effects according to the laws of Tennessee. To these pleas 
the plaintiffs demurred, and on the argument of the demurrer, &e 
defendant's counsel, against ^warding execution de bonis propriis^ 
abowed for cause, that the judgment by default upon the first icjre 
facias did not establish the £^t, that any goods, fltc., had come^to 
me defendant's hands since the judgment of assets qwando acddenmi: 
because the said first scire facias did not aver that goods,- &c., haa 
come to the defendant Viands since the said judgment qiutndOy but 
only t^at those goods had come to his hands, without saying when, 
and a judgment by default only admits such '&cts as are uleged ; 

JANUARIf TERM, 18 46. W 

Dickson v. Wilkinson. 

thtf unless t&e record sbpwed ttiat assets had come to his hands nnce 
the said judgnient quando^ and that such assets had beep eloigned 
and wasted, no execution could issue against the defendant to be 
IcYied de homs fropms. And the coiinsel for the plaintifls indsted 
that advanta^ diould have been taken of the aUeffed defect in the 
first tcirefacuu at the term to which it was returnable^ and returned. 
by plea or demurrer; that the iudgment by default was a waiver m-^ 
errors in the nrocess, and so that the said error, if it be one, could 
not be reached bjr die demurrer aforesaid. 

<< And upon said pointy whether advantage could be taken of Ae 
aforesaid defi^ve averment in the first scire /acku^ upon the plain- 
tiffi' demurrer to the defendant's pleas to the second scire /aciaSy the 
opmions of the judges are ojqposed. 

<' And it is hereupon ordered, that the foregoing statement of &cts, 
involving said point, upon which said disagreement occurs, made 
under the direction of the judges.and at the request of the plaintifls 
by their attorney, be certified to me Supreme Court for their ojpinion 
upon said jpoint, according to the' act of Congress in that case made 
and provided." 

"Hie case was argued by Mr. Francis Brinkf/^ for Ae plaintifls, 
who made tiie following points: — 

l.^The first sdre facias was sufficient accurate as to fonn. It 
avers that on the 4di of September, 1837, judgment was rendered 
fi>r the plaintifls againA the ^assets ouarufo accidmn^. It then avers 
^it afierwards, on the 2d of October, 1838, (inore than a year,) the 
pbflntiffi sn^ggested that ami^ had conie into the bands of me defen^ 
dftot, suffiaent to si^tisfy the judgmesit The two fiu^ts tofi;ether 
form the conneeted proposition, that assets had come into the hands 
otjdae defendant since the judgment quondo. In the case of Piatt v. 
Robins iet al., 1 Johns. C. 276-, there is no better averment; yet no 
objection was taken to th^ form. ^^ Diverse goods and chattels which 
were of ^ intestate, to the ^amount of die damages recovered, had 
come to the hands of the defendiints," is the language ia that case. 

'2. If die averment in the first scire facias be imperfect, the obiec- 
tion cannot now be taken ; it' should have been made by plea, wnen 
fiiat wtA was returnable. Tl\e general rule is, &at if a party do not 
Vfsal himself of the opportunity of pleading matter in bar to the ori- 
ffmaf action, he cannot afterwards plead it, either in another action 
founded on it, or in 9l. scire facias. Cook v. Jones, 2 Cowpet, 727; 
Wheatley v. Lane, 1 Saunders, 2l6, note 8, bv Williamis. ' 

3. The defendant cannot plead any plea to me second scire/acias 
wluch puts biff defence upon ^e want of assets ; for such plea would 
be contrary to what is addkttMi by his default in the^ firsf , ^cirefaciasi 
Ttie default^is ah admission of assets. Ti^ v, Edwards, 6 Modem,, 
308; Rock V. Leig^ton; 1 Salk. 310 : Piatt v. Robins et al., 1 Johns. 
Ca. 276: Skelton v. Bawling, 1 Wilson, 268; Ruggles et al. v. 


Dickton «. Wilkintoa. 

Sberman, 14 Johns. 446; TliePeopk v. The Jud^ of Erie Cc(im- 
tjr, 4 Cowen, 446. This last case shows the practice to be to iasoe 
executioii de bonis fropmsy whether nuUa bona or dto<uUwU be re- 
iiui]^ by the shen£ ^;^iart v. Slate, for the use of 'Mackabin, 
2 cm & Johns. 236; CSiffith v. Chew, 8 Serg. & Rawle, 17. A 
c/^inonU actionem J by executor, is an admission of assets. Den «• 
De Hart, 1 Halsted, 450. 

4. The point raised by the spedal plea is as to the effect of t)ie 
proceedings m insolvency in the local courts. If the proceeding be 
m die natoreof a c<Hnmis8ionofinsolyency, then the pendency of such 
commisflion is no bar to a mre fadoM ^gamst the administTator, in a 
judgment had against him. Hatch v. Eustis, 1 GalL 160. 

Mr. Justice McKINLEY defirered the opinion of the cotnt 

This case is brou^t before this court upon a certificate of diviaon 
of opinion of the Circuit Court fortibe middle district of Tennessee. 

Tht plaintifls had judgment against the defendant for $1169 88 
debt, and $110 94 dama^;es. <' And it appearing to the ssd^isfaction 
of the c6urt, by the admission of the plsdntifis, thai no assets. of the 
intestate had come to the hands of the defendant," it was adjudged, 
that the plaintiSSs have < execution to be levied of the goods and 
chattels, and assets, which midit thereafter come to the h^ds of die 
defendant to be administered.'' Upon this judgment 9^fi.fa. issued 
to be levied of the astets of the testator, which might thereafter come 
to the hands of the defendant to be administered: which ^. /a. was 
returned by the marshal nuUa bona. On the 10th day of January^ 
1839, a ictrefaJcias issued against the defendant, upon suggestion 
diat assets of die intestate, sufficient to satisiV the judCTient, had 
come to the hands of the defendant. Upon this scire facias there 
was judgment asainst the defendant hj default, to be levied of the 
ffoods and chatt^ of the mtestate, in his hands to b^ administered. 
Aji.fa. issued upon this judgment, which was also returned nulla 

And thereupon anodier scire facias issued against die defendant to 
have judgment against him de bonis proptUs^ to which he pleaded, 
first, plene administravU; secondly, that no assets ever came to his 
hands; and thirdly, that die est^e of ti^e intestate was insolvent at 
die tiine the letters of adAunistration were granted; and that in pur- 
su^ce of the act of the General Assembly in such case made and 
provided, he had suggested, to the clerk of the county court, the in- 
solvency of said estate, &c. To these pleas the plaintifls demur- 
red, and m ar^ment die counsel fcH* the defendant insisted ^'tfaat 
the judgment By default upon the first scire facias did not estabHah 
die fact, dial any goods, &c., had come to the hands of the defimd- 
ant, siiice the judgment 'of assets quando acciderini; because the said 
first scire facias did hot aver, that goods, &c.^ had come to the de- 
fendant's nands once the said judgment quando; but only, &at said 

JANUARY TERM, 1846. 61 

Dickson v. Wilkinson. 

^oodsy SlCj had cometo his hands, without saying yrbeai; and a 
ludgment by defiaiult only admits such facts as are allied. Tliatun- 
less the record showed that assets hadscome to his hands since the 
judgment juondoi and that ^ch assets had been wasted, no execution 
comd issue against die defendant to be levied de boms propriis.^^ 
And the counsel for the plaintiffi insisted '^that the all^;ed defect, 
in the first idre fadaa^ snould have been taken advantage of at the 
first term to which it wa^ returnable, by plea or demunrer;^ diat the 
judgment by ddault was a waiver of errors in the process; and so 
the error, if it be one, could not be' reached by the demurrer." 

^< And upon said point, whether advantage could be taken of die 
aforesaid defective averment in the first scire facias, upK>n the plain- 
tifis* demurrer to the defendant's pleas to die second sdrefadas^ the 
opinions of the judges were opposed." 

A scire facias ia an action to which the defendant may plead znf 
legal matter of defence. And m this case die defendant nudit hav^ 
pleaded die same matter in bar to the ^r^t scire faciasj wfaidi he of- 
med to ^ead to the second. , Or if he considered the first scire fa<> 
das insufficient in law, he mi^t have demurred to it Having done 
neither, judgment by ddault was properly taken against him. And 
it is well setued, that a jud^ent by de&ult against an executor, o^ 
administrator, is an admission of assets to the extent char^ in the 
proceeding against him, whether it be by action on the origmal judflP- 
ment or by scire facias. Swing's Executors v. Peters, 3 Term R. 
685 ; The People v. The Judges of Erie, 4 Cowen, 446. FaiL 
10^ to make the money out of the assets of die intSstate, on die first 
sore yaoof , the idaintifis prosecuted the second to have judgment 
a^jaiost the defendant, to be leviied of his own proper goods, &c. To 
this he'ideaded the three pl^as before mentioned. 

It is a universsd role <^law^ that if the party fiul to plead matter in 
bar to ^ orieinait'aGtion, and judgment pass asainst him, that he can> 
not afterward plead it in another action founded on that judgment; 
norin a sdre fadas^ (see the authorities above cited.) llie demur- 
rer of the plaintifis to the defendant's pleas was, therefore, well taken. 
And althpu^ eidier party may, on a demurrer, take advantage of 
any defect or feult in pleading, in the previous proceedings in the 
suit, die demurrer can reach no fiirdier back than the proceedii^ 
remain injleri^ and imder the control of the court. The judgment 
on the first scire Jacias^ although ancillarv to the original jud^ent, 
and the foimdation of the proceeding on the second scire facias ^ was, 
nevertheless, a final judgment, and, in that count, conclusive upon 
die parties; and opposedan insuperable bar to any plea of either party, 
^riiraier of law or of fiict, deiigned to go beyond it 

. It is the opinion of th]^ cc&rt, therefore, that advantage could not 
be tdken of any defective averment in the first scire facias, upon the 
d^nurrer of the^hdntiffi to the pleas of the defendant; whicn is or- 
dered to bef^certined to said Circuit Courts 



John Walker, PLAiNTiFr m kbbob, «• Ths PRBsnneirr and Dokbot* 


Ererj tnbseqne&t titaciitity, giTen for a loan origiaallf naiirioiis, howerer re- 
mote or often ^vnewed, ia Toid. 

Where there waa an api)plieation to a bank for a diaeonnt npon a note, to be 
secnred coUatehdlj, and the party applying drew checks npon the bank 
which were paid before the note was actnally disconnied; and the bank 
treated the note, when discounted, as having been so on the day of its date 
instead of a subsequent day on which its proceeds were carried to the credit 
of the party, it was held not to be usury. 

The court below was rig^'t in refusing an instruction to the jury thit, upon 
such evidence, they might presume usury as a fact 

In cases of a written contract, the question of Usury is exclusively for the deci- 
sion of the court 

This case was brought tip by writ of error from the Cirouk Court 
of the United States for the District of Columbia, in the county, of 

The racts were these. 

Onjthe 30tb o^ January, 1840, Walker, the plaintiff in error, ad- 
dressed the following letter to the bank : 

'^ Gentlebcek : — I am desirous of obtaining a loan of twenty-five 
thousand dollars, to purchase cattle for (ulfiBing my contract with 
the government, for N; Yoric station, say 2000 barrels, and amount- 
ing to nearly $27,000. 

^^ In security for the above money I'll assi^ all my right and title 
to the beef now on hand, sa;^ barrelled ai^l salted, and a]l that I 
may have (reserving a prior right of $3000, already dven for Nor- 
folk station) at thewarehouse on Bradley's wharf, to oe subject to 
your control. 

^^I'll deposit an accepted draft of E. Kane, Esq., navy agent, for 
the payment of mv contract for N. Y. station. 

" Y'rs resp'y, Jwo. Walker." 

On the 6th of February, 1840$ John Walker executed a promis- 
sory note in favour of Henry Walker or order, for $10,000, pimible 
ninety days after date, negotiable and payable at the Bank of Wash- 
ington. This note was delivered to the bank imder the circum- 
stances stated in the first bill of exceptions. The note upon which 
the suit was brought was a renewal of it, dated on the 9m of May, 
1840, the maturity of the above. 

On the 19th of February, 1840, the following draft was drawn : 
"Elias Kane, Esq., navy agent, Washington, D. C. 

^^ Sir : — Please^ay to James Adams, E^., cashier of the Bank of 
Washington, or order, the sum of (fen thousand dollars, out of the 
delivery of navy beef, to be made by me at the navy yard, Brook- 
lyn, NeW York, under my contract, dated 30th September, 1839. 
"And oblige, sir,. veiy respectfiilly, &c., your ob't, serv't 

''WaskhgUm, D. C, February 19, 1840." ^^^' Wambe. 


Walker «. Bank of Washington. 

On die bee of the aforegoing draft was the following acceptance, 

to wit: 
<< Accepted, to be paid by me, when the bills eliall have been . 
recdved and duly approved by the commandant of the navy yard. 


On the 20th of February, 1840, Walker executed to the bank a 
bill of sale of all the beef which he had then on hai^d or should put 
up, reciting that he. Walker, stood largely indebted to the bank on 
loans and discounts obtained from it, and was anxious to secure the 
payment of notes that had been drawn or given, or mig^t thereafter 
be drawn or given, &c., &c. 

On the 2d of April, 1840, the following draft was drawn, which 
is referred to in one of the exceptions : 

<^ EuAS Kakc, Esq., navy agent, Washington, D. C. 

<< Sot : — Please pay to James Adams, E&q., or order, the amount 
due me for delivery of navy beef, to be delivered by me, under my 
contract, at the navy yard, Brooklyn, New York. 

"And oblige, sir, very respectfully, your ob't serv*t, 
"^ra 2(f, 1840. Jno. Walker." 

On the face of the above was the following acceptance, to wit : 
"Accepted, to be paid by me, when the bills shall have been 
receiyed and duly approved by the commandant of the navy yard, 
Broddyn, New York. Elias Kane, Navy Agent/' 

On the 9th of May, 1840, the following note was executed upon 
which the suit was brou^t: 

" [110,000.] CUy of WofkingUm, May 9, 1840. 

*< Thirty days after date I promise to paj to Henry Walker, or 
order, ten thousand dollars, for value received. Negotiable and 
payable at the Bank of Washington. Jno. Walker.'' 

" Credit the drawer." 

It was endorsed by Heniy Walker, Lewis Walker, and John 
Walker. *^ 

Not bdn^ paid at maturity, suit was brought upon it in May, 
1840, and m 1841 the case came on for trial, when ti^e following 
excq>tions were taken, on the part of the defendant 

1^ BUI of ExeqMans. 

"At the trial of the above cause, the plaintifis having given evi- 
doice tending to prove the handwriting of the defendant to the pro- 
missoiy note declared upon, read it in evidence, and then rested. 

"Whereupon the defendant dien gave evidence, tending to show 
that the note dated on the 9th of May, 1840, was given in renewal 
of a previous note dated on the 6th of Februaiy, 1840, similarly 
signed and endorsed, payable ninety days after date ; whidb said 


Walker v. Bank of Washington. 

note, cxf the 6th of February, 1840, was discounted hj the plaintiffi, 
at the reauest of the defendant, for his accommodation, as a loan, 
on the loth February, 1840, but i)ot passed to his credit until the 
22d February, 1840 ; at which time, last aforesaid, an officer of the 
plaintifis deducted from the proceeds of said note the interest on 
die same, computed from the date of said note, (the 6th February, 
1840,) for the period of ninety-four days, and that said note nowhere 
appeared on the books of the plaintiffi until the I8th Februaiy, 18M ; 
mat the whole amount credited by plaintifis to the defendant, as the 
consideration of said note dated upon the 6th February, 1840, and 
discounted only upon the l8th February, 1840, and passed to 
defendant upon the 22d of same month, was the sum of $9,843 33 ; 
and that the stm of $156 67 was taken by said plaintifis, as the 
interest upon said note, for the time the same was discounted. 
And further eave evidence, tending to diow that the said note of 
the 6di of February, 1840, was surrendered to the defendant upon 
the execution of the said note of the '9th of May, 1840, (the said 
last mentioned note being but a renewal of the former,) and that the 
said plaintifis credited the defendant, on accoimt of the said note of 
die 9th of Majr, 1840, only the sum of $9,943 33, and took, as 
interest upon said last named note, the sum of $56 67, which was 
exacted from said defendant. 

"Whereupon the plaintifis gave evidence, tending to prove that, 
on die 20th of January, 1840, the defendant had checked out of 

ElaintifiB' bank $1224 93 ; that, on the 6th of February, 1840, he 
ad checked out of plaii^ifis' bank $2500 ; and, on the 2l8t of 
Februaiy, 1840, he Imd checked out of said bank to the amount of 
upwards of $7000 ; all of which last named sums of money were 
charged to defendant on the books of the plaintifis, and no moneys 
or funds appeared to his credit at the time of drawing out said last 
mentioned sums of monqr ; and that, on the 22d day of Februaiy, 
1840, the plaintiffil credited said defendant widi $9,843 33, as the 
proceeds of said note dated the 6th February, 1840 ; and the balance 
then appearing to be due to defendant on me books of the plaintiffi, 
after oiargin^ him with the several amoimts so as aforesaid drawn 
out of bank oy him previous to the 22d of February, 1840, was 
$997 86 ; which balance was shown to the defendant, and assented 
to by him. 

<^ The defendant then gave evidence tending to tdiow that the said 
note, dated 6th Februaiy, 1840, was 1>roudit, on or after the llfh 
February, 1840, (it being a discount dajr,) by the president of the 

E* iiitiffi, or. a book«keeper of said plainti^, to die discount deik, 
e witness,) and given to him as a note not done, or not passed by 
board of directors; and that said note remained in the hands of 
such discount clerk until the 18th lebruary, 1840, when h was 
passed by the said board ; and on the 22d Februaiy, 1840, tfie sum 
of $9,843 33 was passed to defendant's credh astbenettprooeeda 

JANUARY TERM, 1846. «5 

Walker v. Bank of Waa-hington. 

of said note, and that interest, at the rate of six per centum per an-^ 
num on $10,000, computed from the date of said note, for ninety-four 
days, was reserved at the time of entermg such credit^ by direction of 
some officer of ihe plaintiffi; and that it was the usual practice of 
plaintifis to take interest on discounts only from the time of making 
the discount ; and that it does not appear that defendant was cre- 
dited on plaintifi^' books wiih the interest computed from the 6th oi 
February aforesaid. 

** The defendant flien adced the cashier of the plaintiffii, who was 
sworn as a witness in said cause, whe^er the amounts drawn out 
of bank by the defendant previous to 22d February, 1840, as afore- 
said, were not charged on the books of the plaintifis as overdrafts, 
and were not allowed as the personal credit of the defendant 

'* Whereupon the said cashier answered, that he had no doubt but 
that the defendant was allowed to check upon said note of 6th Feb- 
ruary, 1840, before the same was entered to his credit on the books 
of the bank. And being further asked for the reasons of this opinion 
by the defendant's counsel, he stated that he had no recollection 
of said note's being in bank previous to the 18th February, 1840, 
or of its existence, pr of any arrangement with reference to it pre- 
vious to that date ; and that the said amounts, so checked out pre- 
vious to 22d February, 1840, would not have been paid on defend- 
ant's checks, but for the knowledge, on the part ot the said cashier, 
that he (defendant) had a large contract with the Navy Department 
for the supply of beef, and that for antecedent liabilities the defend- 
ant had given to plaintifis good collateral security; from which, 
however, no surplus resulted after paying ssud liabilities; and that 
the said advances made to the defendant after the 6th Februar , 
1840, and previous to the 22d February, 1840, were made o 
security given, or to be given ; but he does not know of any security 
given during that time, except the defendant's letter of 30th Janu- 
ary, 1840, a bill of sale, by defendant to plaintifis, of his barrellec 
b^, dated 20th February, 1840, and the two acceptances of the 
navy agent, dated 19th February, 1840, and 2d April, 1840, and 
tihe note, dated 6th of FebruaiT, 1840, of which the said cashier has 
no recollection until the l8th of February, 1840 ; and that he is satis- 
fied that said advances were not made on the personal credit of de^ 
fendant. And, frt>m all the above circumstances, he has no doubt that 
said note of 6di February, 1840, was in btok from the time of its 
date, and that defendant was allowed to check on said note from the 
day of its date. 

*< Whereupon the defendant moved th6 court to insh^ct ihe jury 
that the fiu:ts mentioned by said cashier are evidence in said cause, 
but the inferences or opinions of said ca3hier are not evidence; but 
die court refused to give such instructions as prayed, but instructed 
the jury that the inferences or opinions of said witness are not of 
themselves evidence of the fricts so inferred, but that die &cts stated 

Voi^m.— 9 r2 


Walker v. Bank of Washington. 

by the witness, as the gjround of his mference or opinion, are com- 
petent to be ^ven in evidence to the juiy,' together with the infer- 
ence Or opinion of the said witness; mm which &cts the jury 
are to jud^ whether such inferences and opinion are justified by 
the facts mus stated^ Whereupon, the defendant excepts to the 
BBid refusal and to &e insdnctions so given, and this, his bill of 
exceptions, is sign^. sealed, and enrolled^ this 24th day of Decem- 
ber, 1841.'» 

DefmdanPs 2d BUI of Exceptums. 

** After the evidence contained in the aforegomg bill of exceptions 
had been riven, the defendant prayed the court to instruct the j'iiy 
fliat, ^ me juiy believe, firom tiie evidence aforesaid, that the ad- 
vances to defendant named in the evidence were not made upon 
the note of 6th February, 1840, and that the piaintiiTs, upon dis- 
counting said note, received or reserved more than at the rate of 
dx per centum per annum, then the jury may infer usury, from the 
whole evidence aforesaid. La said note of 6th Februaiy, lo40.' And 
* if the jury believe, from the evidence aforesaid, that the note of 
the 9th of May, 18^, named m the evidence, was given in renewal 
of a former note of die defendant, dated on the 6th of February, 
1840, payable in ninety days. after date, and which last note was 
discounted by the plaintiffs^ as a loan to the defendant, on the l8th 
day of February, 1840, but was not passed to the credit of the de- 
fendant until the 22d February, 1840, and that the said plaintiSs 
then ch^irged and received interest upon the same from the date of 
the said jaote, to wit, from the 6th day of February, 1840, it is the 
taking above six per centum pe»-annura for the loan of the money 
made to the defendant upon said note, and iS usury; and the defend- 
ant is entitled to ^ verdict in his favour upon said note, notwith- 
standing the jury may find, from the evidence, that the defendant 
had overdrawn his account, as stated in the evidence, unless they 
further find that the said interest, reserved as aforesaid, was credited 
to defendant's account as a credit to take effect from die 6th Febru- 
ary, 1840.' But the court refused to grant each of said prayers, 
though presented seriatim. Whereupon the defendant, excepts to 
the said refusal; and this, his bill of exceptions, is agned, sealed, 
and ordered to be enrolled, this 24th of December, 1841." 

Defendant's 3d BUI ofExcepHons. 
"In addition to the evidence contained in the foregoing bill of ex- 
ceptions, which is made part hereof, the defendant gave evidence 
tending to show that,, in October, 1839, the plaintiffs suspended spe- 
cie payments, and have not, since that time, paid their notes in spe- 
cie or its equivalent until July, 1841 ; and ftirther gave evidence 
tending to prove that the paying teller of the plaintiffs, according to 
his impression, would not have paid the checks of the defendant for 
the amounts credited to defendant as aforesaid, on the 22d and SSih 


Walker v. Bank of Washington. 

February, 1840^ if drawn for the entire amounts in District bank 
paper or uir^e plaintifis' paper, ^tmless he had received spectiBl in- 
structions to that effect from the president, or unless he, the pajring 
teller, knew &at the plaintifis were at that time deorous of increaang 
the circulation of theur own notes; that he considered he had a dis- 
cretioi^n that subject, in absence of instructions, and has no recol- 
lection of having received any instructions in regard to the discounts 
to defendant, or any general instructions as to the mode of paying 
discounts at that time, though it is his impresaon that he would not 
have paid discounts to so large an amount in District bank pa^)er or 
plaintiffs' paper at. that time; nor would they, at the date of said 
notes, have received on deposit paper of Virginia banks (they having 
also suspended at the same time) in large amounts, or to the amount 
of either of said notes, unless for the accommodation of a regular 
customer of the plaintiffs, and only in that case upon the understand- 
ing that he would receive back tne said deposit in the same kind of 
funds ; and that the plaintiffs would not, by their olficers, have re- 
ceived payment of the notes in suit, in case their amounts had been 
^dered at the time of maturity, in the paper of Virginia banks, (all 
of which were in a state of suspension of specie payments,) and that 
Oie market vahie of Virginia bank notes, in the months of February, 
March, April, and May, 1840, in the city of Washington, (i^ere the 
plaintiffs did business,) was from ^ to 1 per cent. less than the notes 
of the banks in said District, or the notes of banks in Baltimore, Ma- 

^^And the defendant iardier gave evidence to show, that on the 30tfa 
January, 1840, he sent to the plnintiffs his written application for a 
loan, in these words, (see statement.) That he afterwards executed 
the note of the 6th FeDruary, 1840, named in the first bill of excep- 
tions, and the note of the 25th February, 1840, now in suit ; and 
then was passed to liis credit, on the 22d February, 1840, on the 
books of the plaintiff's, the sum of $9,843 33, as the proceeds of the 
discount of said above-named note of the 6th February, 1840 ; and 
on the 28th February, 1840, the farther sum of $5,939 was passed 
to his credit on the books of the plaintiffs, as the proceeds of the dis- 
count of the note d^ted 25th February, 1840. That tlie defendant 
checked out of the plaintiffs' bank the said sereral amounts so cre^ 
dited to him, and he gave evidence to show that some of his checks 
for said amounts were specially made payable in Virginia notes, and 
were in that form paid by the plaintiffs. That a check for upwards 
of $900, drawn by the defendant on plaintiffs on the 29th February, 
1840, for part'oT the proceeds of the note of 25th February, 1840, 
passed to his credit as aforesaid, was also made T>iyable in Virginia 
money on its face, but the plaintiffs, through their officers, reftised to 
pay even Virginia money on said check, but against the wishes and 
request of the bearer, one Sinclair, (to whom the said cheek was 
given for value by said defendant,) paid the said check in notes of 


Walker v. Bmnl^ of Washing.toA. 

suspended banks in Delaware, Pennsylvania, and Ohio, being notes 
more depreciated in value than Virginia paper in said District of Co- 
lumbia; and that said Sinclair had to pay, on $260 of said money 
i>aid to him on said check, a discbunt of ^$10, to obtain the equiva- 
ent of Virginia notes, and the balance of said proceeds of said check 
the said Sinclair could not pass at all, and he required the defendant 
to take it from him, which he did. , And further ^ve evidence tend- 
ing to prove, that at the time of the dates of said note, and of the 
proceeds thereof bein^ credited to defendant as aforesaid, it was the 
practice of the plaint)fis, through their officers, not to pay out the 
accommodations or discounts made bv the plaintifis, to such lar^ 
amounts as either of said notes, in the bank paper oif said Dis- 
trict or in specie, but in paper more depreciated thieuQ that of the said 
banks in said District And further gave evidence tending to sbow, 
that in February, March, Aprils and May, 1840, notes of the Vir- 
^nia banluuwere not considered bankable money, and that the plain* 
tifls had a. notice posted up in their bank, that they would not receive 
the paper of the Virginia banks on deposit or psnrment of debts ; and 
that the defendant did receive the pi ^ceeds of the loans stated as 
aforesaid in Virginia paper, and some in Pennsylvania paper. ' 

^^And the pkinti£(s, in cross-acamining the said witness in said 
cause, further proved, thftt said Walker always drew out perscmaUy, 
and on his checks, either the A^ginia money pr the other money, as 
he desired or directed, and ^erallv sudi as he asked for, and never 
at any time made any objection to me moneys he was paid in; and 
further, that he declared that Virginia money was as eood to ham as 
any funds in which he could be paid, and tmit he preferred it to anj 
other. And further proved, that the state of the bank, and its busi« 
nesB, and the notes they usually^paid out, at the date ofsaid defend* 
anf s letter,, and at the date of the notes and the times of their bc^ 
discounted, were well known to die customers of the bank ; and that 
file defendant was &en, and had been before, a' considerable custom- 
er; and that all the notes of Virginia banks, or of other banks, paid 
ottt to defendant or • other ^ealers, were received by the bank in the 
way of its business, at par ; and notwithstanding the notice aforesaid, 
the bank took such notes in small payments, or when mixed with 
others in lar^ payments, or on deposit by. customers whose business 
was such as mduced die ofRcers to expect that they-would take the 
same sort of notes in payment from the bank. 

'^And the plaintifis furthei:. proved, on the cross examination of said 
witness, the cas^t of ^d baidc, thst, at tfa^ time of the dates and 
discounting the said notes, it was the custom of the bank to pepr out^ 
for tiie proceeds of its-discounts, its own notes, or the notes of other 
badb, as desired by the parties receiving such discounts ; that when 
the parties required it, they paid out their own notes^ and when no 
particular paper was jequired, the^. paid out such as had most accu* 
undated, and i£ wlis most convement for tike bank to pay out; and 


Walker «. Bank of Washington. 

fhat said Walker, if he had insisted on it, would, at the times ^pay- 
ment to him of said proceeds of said notes, according to their then 
practice, have had paid to him. the same in their own notes. 

^^ Whereupon the defendant prayed the court to instruct the juiy, a)9 
follows, to wit: — 

"Prayer No. 4: 

, " That if the jury believe, from the evidence aforesaid, that at the 
time the plaintiils advanced the amounts of the notes in question, af- 
ter deducting the discounts on the same, it was well understood and 
arranged between the plaintifis and defendant, that the said amount 
diould be advanced and loaned by plaintifis to defendant, on condi* 
tion that defendant should draw such amounts from said bank in Vir* 
ginia bank notes, or ifi notes of other state banks in a state of sus- 
pension of specie payments — all which notes were depreciated in the 
maiket, and ^commonly passed below the current value of the notes 
of the said bank, and notes of other suspended banks in this District, 
and all without exception, as well the iiotes of the said bank as of 
other suspepded banks of this District, were considerably depreciated, 
and commonly passed below the current money of the United States ; 
and that^efendant did, in pursuance of the terms and conditions of 
said loan, in fact receive the amount of said loans fit)m the plaintiffii 
in the bank notes of Virginia and of other states, which, at the time 
ike same were so received by defendant, were depreciated consider- 
ably below the current value of the bank notes of this District, and 
still more considerably depreciated below the standard and current 
value of the current money of the United States, without any allow* 
ance for the d^reciation of the same ; and that such depreciation 
was well known to plaintifis at the time and times of such bans; 
and &at defendf^t would not have been permitted, and in fact was 
not permitted, by the plaintifis or the officers of said bank, to draw 
out the amounts of such loans from the said bank, either in the notes 
of said bank, or of other solvent though suspended banks of this 
. District, or in the current money of the United States ; and that the 
plaintifis were to. have received,, and expected to receive, in repay- 
ment of said advances and loans, current money of the United States, 
out of the said drafts on the navy agent, and would not have re« 
ceived, in repayment of said loans, the whole amount of either loan 
or note, the h^ik notes of Virginia or of other state banks in a state 
of supension ; and that such current money of the United States was 
then at a premium very considerably over and in Exchange for the 
notes of any of the suspended state banks, and of any of the banCs 
in this District: then tiHe jury should conclude from said facts, that 
the said loans were usurious, and the said notes void. 

"Prayer No. 5: 

" If thejury believe, from the evidence aforesaid, that there was an 
application by the defendant to &e plaintifis for a loan of a large 
sum of money, and that the defendant being in want of such sum 


Walker v. Bank of WashiDgton. 

of money, the plaintifls agreed with him to loan him the amounts 
of the notes in suit, provided he would take the said amounts (after 
deducting therefrom the rate of six per centum on the same for the 
time the said notes had to run) in notes of Virginia banks in a state 
of suspension, or some other state banks in a state of suspension, 
at theur nominal amount; which said suspended bank notes were 
4hen depreciated in value below the value of the District bank notes, 
and much more depreciated below the value of specie ; and that 
defendants would previously execute his notes to the plaintifis for 
the nominal amounts so to be advanced to him, superadding thereto 
the interest on the amount mentioned in each of said notes for the 
time said note had to run ; and that the defendant, in pursuance of 
said agreement, did afterwards receive the said notes of suspended 
banks in Virginia and other suspended state banks : And that if 
the jury further find that the bank reserved, on the respective nomi- 
nal amounts of money so loaned to the defendant, interest thereon 
at the rate of six per centum per annum, paying him the balance 
of said loans in the depreciated paper aforesaid, and that the plain* 
tifis, according to the agreement between them and defendant, ex- 
pectefd and intended to receive the amount of the notes in suit, with 
interest thereon, in specie, or in funds of greater value than the 
money so ])aid, as the proceeds of said notes as aforsaid : then the 
said facts, if believed by the jury, constitute an usurious agreement, 
and all contracts founded thereon are null and void. 

"Prayer No. 6: 

"If, from the evidence aforesaid, the jury &hall find an agreement 
between the plaintifis and the defendant, by which the defendant 
borr9wed firom the said plaintifis the amounts of money mentioned 
in said notes, deducting mterest on said amounts at the rate of six 
per centum per year, and that the proceeds of said loans were paid 
ta the defendant by Uie plaintifils in depreciated bank notes, as a de- 
vice, and with intent to evade the statute of usury, and that the said 
Botes were founded on such agreement, a^id made in pursuance there- 
of: then the Jury ou^t to find the said agreement to be usurious. 

"Prayer No. 7: 

" If the jury believe, firom the evidence aforesaid, that the notes in 
suit were jriven in consideration of a loan or loans of money made 
by plaintifis to defendant, and that by the terms of the agreement on 
which said loau or loans were made, the defendant was compelled 
to take the same in depreciated paper, (well known to the plain- 
tifis to be depreciated,) whereby the defendant not only paid the 
legal interest pn the nominal amount of said loans, but sustained 
a loss on the depreciated paper with which the plaintifis paid him : 
tlien it is competent for the jury to infer usury from the whole cir- 
cumstances vk evidence. 

"Prayer No. 8: 

" It is competent for the jury, from all the circumstances in evidence, 


Walker v. Bank of Washington. 

to infer usury in the agreement or agreements on which the notes in 
suit were founded. 

" But the court refused each of said prayers, though presented fen- 
> atimj and the defendant excepts to such refund, and claims the same 
benefit of exception as if each refusal aforesaid was separately ex- 
cepted to. And this his bill of exceptions b signed, sealed, and or- 
dered to be enrolled, diis 24th day of December, 1841.^' 

Brenty for the plamtiff in error. 
HeUetiy for the defendants in error. 

Mr. Justice WAYNE delivered the opinion of the court. 

This suit is brought upon a promissory note, given in renewal of 
a former note, which had been discounted by the defendants in 
error. The defendants in the court below deny that the plaintifls 
have any right of action upon the note sued on, on the ground that 
the first note was tainted with usury. 

Such is the law in such a case. The mere chan^ of securities 
for the same usurious loan to the same party who received the usury, 
or to a person having notice of the usury, does not purge the original 
illej^ consideration, so as to give a ri^t of action on the new se- 
cunty. Every subsequent security given for a loan originally usuri- 
ous, however remote or often renewed, is void. TutEll v. Davis, 
20 J. R. 285 ; Reed v. Smith, 9 Cow.^647, and the cases of Sau- 
erwein v. Brunner, 1 Harr. & Gill, 477 ; ITiomas v, Catheral, 5 Gill 
& Johns. 23, decided in the courts of appeal in Maryland, under the 
statute of which state, it is said, • the note now sued upon is void. 
But such is not the case before us. The defendant. Walker, had 
entered into "a contract with the United States to supply the navy 
with beef^' and to enable himself to do it, he applied to the bank, by 
letter dated the 30th January for a loan of $25,000, and offered as 
a security K draft upon £. Kane, the navy agent, and also to assign 
to the bank the beef which he might put up. The bMik accepted 
his ofier, but before Walker gave the draft upon Mr. Kane, or made 
the asagnment, he drew his note on the 6th day of February, seven 
days after he had written his letter asking for a W Ji, for $10,000, at 
ninety dajrs, and handed it into bank; which note, at maturity, 
was renewed by the note of the 9th May, now in suit This note, 
however, was not discounted until the 18th February, and when then 
done, the proceeds were not passed to his credit until the 22d. 
The cause of the delay, in both particulars, the proof in the case 
shows, was^ that Walker did not, until the 19th of February, draw 
his draft upon the navy agent, as he had proposed to do, or make an 
asafi;nin^t of he beef to the bank, until the 20lh. He may or may 
not have passed the navy agent's acceptance to the bjuik On the day 
it it dated,. or have delivered his deed for the beef the day after; but 
between those dajrs and the 22d inclusive, he did so^ and the bank's 

secuii^ being then in its possession as he had offered it, the proceeds 


Walker v. Bank of WashiDgton. 

of bis $10,000 note was, on the last mentioned day, passed to his 
credit. But, in the mean time. Walker had drawn out of the bank, 
upon his checks, more ^ban seven thousand dollars, with which he 
was debited when the proceeds of bis note were carried to his credit ; 
which sum and the interest upon it, computed for ninety-four days, 
from the date of the note, left a balance to his credit of $997 86. 
The computation of the interest from the 6th February, instead of 
•from the day when the proceeds were carried to his credit, is the 
usury complained of. The letter of the defendant of the 30th Jan- 
uary, asking for the loan of $25,000; the accq)tances of his drafts 
upon the navy agent by that officer, and the defendant's assignment 
to the bank of certain portions of the beef which he had on hand, 
and which he might put up under his contract with the United States, 
and which assignment was not executed until the 20th February, 
were in evidence before the court below. The assignment recites 
the defendant's contract with the United States, so far ^ it was 
necessary to introduce the contract which he was about to make in 
it with the bank; -then his indebtment to the bank for loans and dis- 
counts, his intention to secure the payment of the money due by 
him, and all drafts, note or notes that have been given for the same, 
or might be afterwards given by way of substitution or renewal of 
such drafts or notes, or any of them, &c., &c., and then states that 
the money which had abreadv been advanced or loaned, or which 
might afterwards be advancedor loaned by Ate bank to the defend- 
ant, being for the purpose of enabling him to fiilfil his contract with 
the United States. New, the proof is positive, on both sides, that 
the note sued on was given in renewal of the note of the 6th Febru- 
ary, which had first been given under his proposal for a loan, and 
that it was intended to be the note, the payment of which was to be 
secured by the assignment. Such being the evidence, the court cor- 
rectly refiised every instruction which was asked to refer the question 
of usury to the jury as a fact. It was a case of a written contract, 
in which the court had the exclusive power of deciding whether it 
was usurious or not. Levy v. Gadsby, 3 Cranch, 180. But, if it 
were not so, we think the instructions, as they were asked, could 
not have been given by the court to the jury* Each of them called 
upon the court to give an opinion upon tne sufficiency of the evi- 
dence, and in all of them, except the eighth, there was a separation 
of the facts from the entire evidence, so as to bring them under the 
cases of Scott v. Lloyd, 9 Peters, 418; Greenleaf t?. Booth, 9 Pe- 
ters, 292 ; and that of the Chesapeake and Ohio Canal Co. v. Knapp, 
9 Peters, 541. Nor do we think that there was any error in the 
instruction given by the court to the jury under the defendant's first 
prayer. The court sufficiently distinguish between the facts of the 
cashier's evidence and his belief, and tell the jury that they are to 
determine by the facts whether the cashier's inferences were justified. 
The judgment of the court is affirmed. 


William HntDBRsoiif Plaintiff m uror, v. John Andkrion. 

This court adheres to the rate laid dovn io Walton «. Shellir, 1 T. It S96, sns* 
tained as it has been by the decisions of this court in The ^ank of the United 
Btates V. Dann, 6 Peters, 57; The Bank of the Metropolis v. Jones, 8 Peters, 
IS, and Bcott v. Lloyd, tjz^ that a partjr to a negotiable paper, havibg given 
It Talae ^nd cnrrenej by the sanction of his name, sbaJl not aAerwards 
inraJidate it by showing, npoo his own testimony, that the consideration on 
which it was exec^oed Was illegaL . 

This case was brou^ up by writ 'of error from the .Circuit Court 
otihe United States in and for the eastern district of liouisiana. 

Anderson was a citizen of Kentucky, and William Henderson, of 
Louisiana. Henderson was. a partner in the commercial house of 
John Hendersoitand Co., canying on business in the town of War- 
renton, Warren county, Mississippi. 

On the 3d of Febm^, 1837, Thomas J. Green dreW the follow- 
ing inland bill : 

" Warreniony FArwry Sd, 1837. 
'' Exchange for $3795 00. 

/^ Twelve months after date of this iby first of exchange, (second 
of the same tan<v and date unpaid,) pay to the order of Messrs. 
John Henderson & Co;. thirty-seren hundred and ninety^^ye dol« 
lars, Talue received, and charge the s^dGcie to .account of 

^^ Your obedUent servant, Thqs. J. Gbeen. 

^^To'Messrs. Briggs, Lacoste, & Co., Natchez.'' 

It was endorsed by John Hendersoiv& Co. and D. G. Barlow & 
Co., and passed mto the hands of Anderson. Being protested for 
non-acceptance and non-payment, Anderson instituted suit against 
William Henderson, the partner, by way of petition, according to 
the practice in Louisiana, as follows : 

^^ That the petitioner is bolder and owner of a certain bill of ex< 
change, for the sum of thirty-seven hundred and ninety-five doUars, 
dra:^ by Thomas J. Green, endorsed and directed to Messn. 
Briggs, Lacoste & Co., Natchez, which said bill was drawtttb th^ 
order, and was endorsed by John Henderson & Co., dated at War- 
renton, in the state of Mississippi, on the 3d February, 1837, pay- 
able twelye months after dace, whidi said bill of exchange, on the 
8th. of Fdruarvi 1837, was protested for non-acceptance« and on 
the 6th day of February, 1838, the d^ of maturity, was dul^ pro* 
lested for non-payment by James B. Cook, a notary public, m the 
citT c^ Natches,^ duly commissioned and qualified, and dMt said 
John Henderson fc Co. was, by said notary, duly notified of said 
proftest for non-acceptance, and for non-payment by, aU of which 
wiU vpfeat by reference of said bill of exchange and protest diereof, 
and said biH of exchange annei^ed is made a part thereof. 

^^At the. time said bill was endorsed, petitioner avers flud; said 
Waiiim He^denon^was a membcgr of the late oonMneicial firm of 

youra-.^io o 


Henderson v. Anderson. 

John Henderson & Co., formerly doing busmess at Wairentdn, 
under the said style and firm of John Henderson & Co., and as a 
member of the said firm, he is now liable in solido to pay to peti- 
tioner the amount of said biH of exchange, with interest, cost, and 
damages, and by the laws of the* state of Mississippi petitioner is 
entitled to five per cent, damages on the amount of said bill. 

"Petitioner alleges further, that the. said William Henderson, 
though amicably requested, has neglected to pay the amount or any 
part thereof, for which he is indebted as aforesaid." 

This petition was answered as follows : 
. " Now comes the defendant in the above entitled cause, and, by 
way of exception, says : that he is not bound to answer thereto^ 
because he has not received, nor been served wiw^ a true and exact 
copy of the petition, which by law he is entitled to, and that heias 
not been legally cited to appear and answer herein. Wherefore he 
prays judgment, to be dismissed hence with his costs, &c. 

"Aiid if the foregoing exception be overruled, he pleads the 

S^neral denial. He denies that he is in any manner liable to pay 
e bill of exchange sued on. He avers, specially, that he neither 
signed and endorsed said bill himself, nor in any way authorized 
the name of said firm of John Henderson & Co. to be signed and 
endorsed on the same ; that it was so signed and endorsed as afore- 
said by one John Henderson, without me knowledge and consent 
of defendant, and without any authority whatever ; that such en- 
dorsement was made neither for the benefit, nor for any debt or 
liability, of the defendant or of said firm, ncMT was it made within 
the scope of Ae partnership powers, or on account of said fiirm ; 
but without any due authority, and without the knowledge and 
consent of the defendant, the said bill was signed and endorsed as 
aforesaid by said John Henderson, purely for me benefit uid accom- 
modation of the dr^iwer, the said Thomas J. Green : of all which 
the parties to said bill, and the holders thereof, before and sAer 
maturity, had due notice. Defendant requires strict proof of every 
alle^tion in the petition. 

**Wherefore he prays Judgment, with his costs, &c.** 
After sundry proceedmgs, a commission was issued to take the 
testimony of John Henderson, the acting partner and endorser of 
the bill, and the cause came on for trial m February, 1842. At the 
trial, the court excluded the evidence thus taken, and there was a 
judgment for the pkintifif; but the following bill of exceptions 
being taken to the ruling of. the court, the decision came up for 

"Be it remembered, that on the trial of the above entitled cause, 
the defendant's counsel, in order to prove the allegations set forth 
by the defendant in his answer, offered in evidence the deposition 
of one John Henderson, who, at the time of the drawing and en- 
dorsement of the bill of exchange sued on, was a copartner with 

JANUARY TERM, 1845. 76 

Henderson v. Anderson. • 

defendant, the firm doing business under the name and style of J dm 
Henderson & Co. ; and especially in order to prove that said John 
Henderson endorsed upon said bill the partnership name, without 
any authority whatever, without the knowledge or consent of defendr 
ant, and contrary to their articles of co-partnership, and the course 
of dealing of said firm; that it was so endorsed m the presence of 
the plsdntifif, purely for.^e accommodation of the drawer, Thomas 
J. Green, in dischaiee of a promissory note held by the plaintiff 
against said Green ; mat said bill was not endorsed as aforesaid, for 
the accommodation, or on account of the said firm of John Hender- 
son & Co., nor in any manner for the benefit of said firm of John 
Henderson & Co., nor in any matter in which said firm was interest- 
ed; and that the plaintiff, when said bill was so drawn, and en- 
dorsed, and delivered to him, was fully comisant of all the above 
fiicts. llie plaintiff's counsel objected to the reception of said de- 
position, on the ground that the said John Henderson was incompe- 
tent to testify to any fact tending to invalidate the said bill, pohcy 
for the protection of cotaomerce and the public morals requiring the 
rejection of such evidence. The court, after taking time to consi- 
der, sustained the objection, and rejected the deposition, t)n the 
ground taken, as aforesaid, by the plaintiff's counsel. 

^^ To this decision of the court, the defendant takes this his bill of 
exceptions,. and prays that the same be allowed and signed by the 

Conradj for the plaintiff in error. 

This is an action by the holder of a bill of exchange against one 
of the members of a commercial firm by which it purports to have 
been endorsed. 

The endorsement is admitted^ but the defence is, that it was made 
by one member of the firm, without the knowledge or consent of his 
copartner, the defendant, solely for the accommodation .of the 
drawer, and in a matter in which the partnership had no interest or 
concern whatever. 

To prove these facts, the partner who made the endorsemejit of 
the firm on the bill was exammed under a commission, and his de- 
position, to be found at page 17 of the record, does fully establish 

This deposition, however, was objected to on the ^pund that, 
being a party to the bill, he^could not impeach it by his testimony. 
The objection was sustained by the court, and the deposition ex- 
cluded. To this decision a bill of exceptions was taken, page 13 
of the record, and the only question presented is as to the correct- 
ness of this decision. 

As Henderson had no interest in the event of the suit, his general 
competency is not denied; but it is said, on the authority of the 
doctrine first distinctly laid down in Walton v. Shelly, that his tes- 


Henderson v. Anderson. 

timony is inadmissible so far as it goes to establish that the endorse* 
ment made by him was not binding on his copartners. 

Apart from the sanction which the doctrine, that a witness Irill 
not be permitted to impeach his own acts^ derives from mdidal deci- 
sions, it is difficult to perceive on what rational grounds it can rest. 
In either a moral or a legal point of view it seems equally untenable. 
In a moral aspect, to confess a 'fault, is in aoibe degree to atone for 
it; and what is under all circumstances a merit, becomes an impe- 
rative du^, when the concealment of a fault by the one who had 
committed it would involve an innocent person in its consequences. 

In a legal point of view, the doctrine appears equally unsound. 
The civil law maxim nemo allegans turpitudinem suam est audi- 
enduSj invoked by Lord Mansfield in its support, i^ manifestly mis- 
applied. Its proj>er application is to parties to the suit, not to wit- 
nesses. Its meaninjz is, that no man ^all allege his Own turpitude 
as the foundation of a claim or a right. It is equivalent to anoth^ 
axiom in that system, ex turpi causd non nascUur acUoj and is 
analogous to the common law pi^inciple that ^^no one diall take ad- 
vantage of his own wrong.*' 

In fact, in all other cases courts of justice have adopted the o}iipo- 
site principle, llie general rule is, not only that & man may con- 
fess his own turpitude, but that he is bound to do so, whenever his 
confession will not subject him to a criminal prosecution; and even 
this exception, bein? established solely for the protection of the wit- ' 
ness, may be waived by him. In criminal trials witnesses are every 
day allowed to prove crimes in the commission of which they aided 
and abetted. In chancery, (which ha's borrowed the practice fjx>m 
the civil law,) even parties may be compelled to di^lose acts of 
fraud and moral turpitude. 

It was no doubt a conviction on the part of the English courts 
that the rule was erroneous in principle and inconvenient in prac- 
tice, that induced them first to lunit its application to negotiable in- 
struments, and finally to abandon it^altogether. Jordaine v* Lash- 
brook, 7 Term Rep. 601. 

In this country, m s6me of the states the rule has never been fol- 
lowed. In others, where it had been originally adopted, the courts 
have been gradually receding from it. Stafford v. Rice, 5 Cowen, 
23; Powell V. Waters, 8 Coweh, 673; Williams v. Walbridge, 

The rule is now universally held to applv only to negotiable paper. 

This limitation of the rules is a virtud abandonment of the ^und 
on which it was originally founded, inasmuch as the impropnety or 
indecency of allowing a man to contradict his own acts, can in no 
manner depend on the form or character of the instrument ihus sought 
to be impeached. 

The rule thus restricted must rest, therefore, on another principlcj^ 
to wit, the public policy of protecting negotiable paper. Now on 


Hendtrson v. A&derson. 

this point, I will observe, first, that if tlie holder received the paper 
in good &ith, he is sufficiently secured bv the principle which pro- 
tects such paper in the hands of a bond Jide holder against all equi- 
ties that may exist between the original parties. If, on the contrary, 
he took the paper mold fide^ there can be no good reason why he 
should be protected. In the first hypothesis, the evidence would 
be irrelevant; in the second, the reason for its exclusion does not 

There are, it is true, two exceptions to this remark, to wit, where 
the defence set up is that the note or bill orijginated in a gammg or 
usurious consideration. In these cases the mstrument, even in the 
hands of a hcrndfide holder, is tainted with the illegality of its origin. 
But is not this exception founded on considerations of public policv ? 
If so, how can a rule which excludes the evidence of the racts be 
also founded on public policy? How caii it be at the same time 
politic to allow the consiaeration of ne^tiable paper to be inquired 
mto in these cases^ and at the same time impolitic to prevent the 
introduction of the only evidence by which, in the great majority of 
cases, the &cts can be established? 

- At all events, if the object of the rule be to protect negotiable pa^ 
per in the hands of bona fide holders for a valuable consideration, 
(and we apprehend it can hardly be desirable to protect any other,) 
theji the rule itself should be co-extensive with the object sought to 
be attained. As the onl^ cases, therefore, where the consideration 
can in such cases be inquired into are those in which usury or gaming 
is set up as a defence,, it would be sufficient for all the public policy 
of the rule to say, that a par^ to a negotiable instrument should «not 
be permitted 'to prove that it originated in a gambling or usxirious 

I have ventured on these general remarks in relation to the origin 
of this rule, liecause the rule itself is of recent origin, and the juris- 

Srudence in regard to it, both in England and in this country, is so 
uctuating, that I do not consider it as firmly established. 
But we contend that the rule, even when carried a? far as it has 
ever been by this court, does not- apply to the present case.' 

1. In the first place, for it to be applicable, the paper sought to be 
attacked must not only be negotiable, but have been actuaUy nego- 
tiated. U. S. V. Dunn, 5 Peters, 51 ; Same v, Liffler, 11 Peters, 91 ; 
Blagg V. Phoenix Ins. Co., 3 Wash. C. C. R. 7 ; Baird u. Cochrane, 
4 Serg. & Rawle, 397: 

Now the draft in the present case is still in the hands of a party to 
the ori^al transaction. * In point of form, it is true that the present 
holder is the assignee of the payee and endorser, but in point of fact 
he was a party to the transaction in which it originated, and had full 
knowledge of the purposes for which it was executed. It was only a 
mode whereby the endorsers undertook to become sureties for a debt 
due by the drawers to the plaintiff. Powell t;. Waters, 8 Cowen,.699. 



Henderson v. Anderson. 

2. Even supposing that the draft can be considered in a technical 
sense as having been negotiated, the endorsee certainly took it maid 
fidej and with a full knowledge that Henderson, in endorsing on it 
the signature of his firm, was committing a firaud on his copartners. 
Now, it is well settled that the rule does not apply to cases of firaud 
or misconduct to which the holder was a party. Peterson v. Wil- 
ling, 3 Dallas, 506; Langer v. Felton, 1 Rawle, 141; McPherson 
V. Powers, 1 Serg. & Rawle, 102. 

3. The draft was drawn and payable in the state of Mississippi. 
Its nature and effect must, therefore, be tested by the laws of tiiat 
state. Now, the law of that state provides, in substance, that in all 
cases where a promissory note or other obligation in writing has 
been assigned, the defendant shall be allowed the benefit of all want 
of lawful consideration, failure of consideration, payments, discounts, 
and set-ofis made, had, or possessed against the same, previous to 
notice of the assignment, any law, -usage, or custom in any wise to the 
contrary notwithstanding, in the same manner as if the same had 
been sued and prosecuted by the obligee or payee therein. Law of 
June 25, 1822, sect. 12. See Howard & Hutchinson's Di^. p. 372. 

By this law negotiable instruments are placed precisely on the 
same footing with all other securities, and, therefore, the distinction 
on which alone the principle which prevents a party to an instrument 
firom inmeaching it by his testimony rests, is unknown in that state^ 
The defence, in the present case, is want of consideration. Had the 
suit been brought by the assignee of an instrument not negotiable, 
the witness would unouestionably have been competent to prove 
this fact. But by the laws of Mississippi the assignee of a note or 
bill of exchange has no other or greater rights than the assignee of a 
bond or other instrument not negotiable in its character. The "fat- 
ness is, therefore, as competent in the one as in the other. The 
case is similar to that of Baring v. Shippen, 2 Binney, 165. 

4. The lex fori must regulate the competency of witnesses, Sto- 
's Conflict of Laws, 526, sect. 635 ; and by the law of Louisiana 
le witness was competent. Louisiana Code, art. 2260. 

Mr. Justice DANIEL delivered the opinion of the court. 

Upon a writ of error, to the Circuit Court of the United States for 
the eastern district of Louisiana. 

This was an action instituted at law in Ae Circuit Court for the 
eastern district in the state above mentioned, by petition, according 
to the modes of proceeding in the courts of that state, in the name 
of the defendant in error, as endorsee and holder of a bill of ex- 
change for $3795, against the plaintiff in error, as an endorser of 
that bill. 

The petition sets forth the facts following: That the petitioner is 
the holder and owner of the bill in question, which was drawn by 
one Thomas J. Green, at Warrenton, Mississippi, on the 3d of Pel>« 



HenderfOA «. Anderfon. 

niaiy, 1837) directed to Briggs, Lftcoste, & Co., at Natchez, payable, 
twelve months after date, to John Henderson & ^-i^ vhom it 
was endorsed. Hiat on the 8th day of February, 1837, this bill 
wasprotested for non-acceptance, and on the 6th day of February, 
1838, was duly protested for non-payment in the city ft Natchez, 
and that John Henderson & Co. were regularly notified of said pro- 
tests for non-acceptance and non-payment. Hiat at the time at 
n^ch the said bill was so endorsed, the*p)aintiff in error was a 
member of the £rm of John Henderson & Co., then doing business 
at Warrenton in Mississippi, and as a'member of that firm is liable 
to the petitioner for die amount of the bill of exchange, with interest, 
costs, ood damifies. That the petitioner is a citizen and resident 
of die state of Kentucky, and the said William Henderson, a citizen 
and inhabitant of the pandi of Carroll, in the state of Louisiaiuu 
Upon the aforesoing petition the plaintiff bdow prayed judgment, 
With his costs. &c. 

The defendant below, in the first place, took an excepticm to die 
petition on the ground that he had not be^ aeryed with a true copy 
* diereo^ according to law, nor had been l^;ally cited to ^pear, ynd 
dierefore prayed to be dismisBed ; secondfy. he interposed what is 
diere styled ^^ the general denial,'' coirteponding with the g^eneral is- 
sue; and thirdl;^, he ayerred specially, that he neither sisned nor 
endorsed the said bill himself^ n6r in any yrzj authorized die name 
of ^e firm of John Henderson & Co. to be aimed and didorsed on 
ihe same; that it was so signed and endorsed l|y one John Hender- 
son without die knowledge and consent of the defendant, and ^^tb- 
out any audiority wfaatsoey er ; and that such endorsemei^t was made 
nehher for the benefit, nor for any debt or liability of the defendant, 
nor of the said firm.; nor was H made within the scope of the part- 
nership powers, or on ac^untof thefirm; but that without any due 
audionty, and widiout the knowledge and consent of the defendant, 
die Inll was signed and oidorsed by said John Henderson purely 
tat the ber^ of the saidThomas J. ureen, the drawer, of all which 
die parties to the- said bill, and the bolders thereof, berore and after 
the maturi^ thereof, had notice. 

At a subsequent day the exception first taken for the a]lefl;ed want 
of regular senrice of the petition, was waiyed by the defenouit, and 
die cause was contmued; afterwards, upon the trial thereof, the de- 
fendant, in order to proye the alleg|ttdons in his answer to the peti^ 
tkm, ofitered in eyideiu^e the deposition of John Henderson, who, at 
the time of die drawing and endorsement of the bill of exchangja 
sued on, was a copalrtner widi the defendant in the firm, doin^ busw 
ness under the name and style of John Henderson & Oo. : this en^ 
dence being designed ta snow that John Henderson endorsed the 
partnerdiip name upon the bill without audiority, without die know- 
kdge (& consent of the defendant, and contrary to their articles of 
copartnershq) and to the course of their dealings^ and that it was so 


• • • 

Henditrson v. Anderson. 

endorsed, in the presence oi' the plabtiff, purely for the accooimoda- 
lion c^ the drawer, Thomas J. Green, and not for the accommoda- 
tion, nor on account of, nor in any manner for the benefit of the 
firm of John Henderson & Co. The reception of this deposition 
was objected to on the ground that John Henderson, as a member 
of the firm by whom and at the time the endorsement was made, 
was incoizq>etent to testify to &cts tending to invalidate the bill; 
the court sustained diis objection, and rqected the deposition of 
John Henderson. To the ruling of tiie court on this point ike de- 
fendant took ttn exception, which was reserved to him. 

The exception thus taken presents the whole controversy in thi» 
case, which, controlled by principles heretofore nded by this coiirt, 
would seem to be limited within a very narrow compass. The in* ^ 
<ltiiry how tar a party to a negotiable mstrument may be heard in a^ 
court of la^ir to unpeaeh or invalidiate that instrumentin the hands 
of another, is one which has led to considerable discussion and to 
^Ufferent. conclusions in ibe courts both of England and in this 
country. In the case of Walton, assimee, &c., t^. Shelly, 1 T. SU 
296, die Court of King's Bench decided, that a party to a negotiable 
pi^»er, having given it value and currency by the sanction of his 
name, shall not afterwards invalidate it hj showing, upon his own 
testimony, that ^e consideration on which it was executed was ille- 
ffsi. Subsequently, by tiie same court, this rule was so far relaxed 
or abrogated as to permit die impeachment of such an instrument by 
i>erBons standing in the same relation to it. Vide Joi^daine v. Lash- 
brook, 7 T. R^ 601. Amongst the different states of our union the 
decisions of the Court of King's B^nch on either side of this ques- 
tion have been {^lopted. In this court the rule laid down, in the 
case of Walton v. Shelly has been Quitted and adhered to with a 
imiformity which establishes it as the law of the court Thus, in the 
case of the Bank of the United States r. Duim, 6 Peters, 51, it waa 
enforced in an action by the holder of a note against an endorser, in 
which an attempt was made to impeach the note upon the testimonj 
of a subsequent endorser; in the case of the Bank of the Metropolis 
V. Jones, 8 Peters, 12, in which the makeir of a note was deemed 
«n incompetent witness, in an action by the holder, to testify to fitcts 
in discharge of the liability of the endorser ; and in the case of Scott 
V. Lloyd, the decision of this court, diough not direcdy upon the 
same point, may be re^rded as apmovirig the role established b^ 
the cases previously adjudicated. The judgment of the Circuit 
Court for the eastern district of Loiiisiana now under review beina 
fiiUy sustained by these authorities, that judgment is hereby a^ 

JANUARY TERM, 184o. 81 


Isaac T. PsKsroif rr al., DtraifDAiiTt. 

Before a case can be dismissed Qoder the Slst rule, regfnlating equity practice, 
there niDSt exist, iii the technical sense, a plea or demurrer on the purt of the 
defendant, which the plaintiff shall not hare replied to or set down for hear* 
ing before the second term of the court after filing the same. 

The qomplainanty if he cttboses, may go to the hearmg, on bill and answer. 

Tbi8 was an appc^ from tbe Circuit Court of the United States 
finr East Louisiana, sitting as a court of equity. 

Tlie heirs of Pouhnej fikd a biU in chancery against the City of 
la&yette and upwards of two hundred indiriduals. 

It alleged that Poultney had purchased from, the Widow Rous- 
seau a tra6t of land about, a mile and a half above the city of |(ew 
Orleans in May, l&il8 ; and that to secure die payment of nart of 
&e purchase mon^y, he had mortga^d the same land to her for 
$80,000, payable in five annual instalments of $16^000 each : that 
Poultney died in October, 1819, leaving minor children, and that 
&e defendants were in possession pf the property, which the com- 
pUdnanjts claimed a rifi;ht to redeem. 

The proceeding which took place in court after this are exceed- 
ingly compiicatea. Some of the defendants answered, using this 
expression, ^^ the said answer to serve and be instead of a demurrer 
and pleas to the said bill of complaint'' Objections- were made to 
the jurisdiction of the court. on account of the. residence of the com- 
plainants, and a rule jgranted to try the fiurt of residence, which rule 
was afterwards set aside. 

The bill was taken pro cof^esso as to many of the defendants, 
who were afterwards allowed to answer; numerous persons were 
vouched m warranty by the defendants, and afterwards the pro- 
ceedings stricken out ] demurrers were filed and overruled ; die 
cas^ was put upon the rule docket and then brought back again ; 
thi^ more defendants were brought in. 

Tlie answers, amongst other matters, averred that Poultney, at 
the .time of his death, was insolvent, and thai the property in 5U€^ 
tion had been subjected to the operation of the laws in Lc'iraana 
and sold to its present possessors. 

In 1842, the following proceedings took place. 

On this ftnt Mondav of January, 1842, appeared Isaac T. Pres- 
ton and C. M. Conrad, Esquii^, for defenaants, and filed in evi- 
dence with die clerk and master the following exhibits marked A. 
B, C, D, E, F, G, I, M, N, O, P ; and, on farther motion of said 
counsel, diis cause is set for trial for hearing on the merits, for Fri- 
day, the 14di January, 1842. 

And afterwards, to wit, on die 9di day of February, one diou- 
sand eight hundred and forty-two, the following entry was made of 
record, to wit: 

Vol. IH.— 11 


Ponltney el aL «. City of Lafayette et al. 

'' Wednesday, FAmary 9, 1842. 
<< The comt met, punaant to adjooniment. Present, the Honouiw 
able Theodore H«.McCaleb, district judge ; the Honourable John 
McIQnley, prending judge, absent 

Hein of Poattaey ") 

V. (No. 87. 

The eilj of Lafkyette et alt. 3 

'^ On motion of Isaac T. Pr€»sAon, Esq^, this cause was called on 
flie 4ocket and fixed for trial for Wednesday, the 23d Februanr, 

And afterwards, to wit, on the 23d of Febnuupv 1842, the fol- 
lowing order of court was entered of record, to wit: 

<< Wtdnesday, FAruary 23, 1842. 
<^ The court met, nursuant to adjournment. Present, the Honour* 
able Theodore H. McCaleb, district judge ; the Honourable John 
McICnley, presiding judge, absent. 

Ueln of P^taey "1 

«. vlCo. 87. 

Tbe eity of Lafkyette et als. 3 

<< On the 23d day of February, 1842, Ois case was called for trial ; 
whereupon the complainants, by tl^ir cou^isel, objected, upon the. 
ground that the cause was improperly put pn the issue docket, and 
set down for trial ; &at no replication had been filed, and that, 
since the last term of the court, some of the defendants had died, 
and their heirs or representatives had n%t been made parties to the 
suit ; and moved the court to remand thi cause to the rule docket, 
that an issue mig^ be formed.< On the other hand, the defendants 
nisisted that the case should proceed immediately to trial, or be dis» 
missed under the rules of practice presented by the Supreme Court 
in equi^ cases. These motions were all fiilly argued together, and, 
after argument thereof, the court took time to consider.'' 

And afterwards, to wit, on the 5Mth dav of Februaiy, one thou- 
sand eig^ hundred and forty-two, the following entry and decree 
were entered of record, to wit : 

<< TkuTidmfy February 24, 1842. 

<< The court met, pursuant to adioumment. Present, Honourable 
llieodore H. McCafeb, district ju^ge ; Honourable Jolm McKinley, 
piesiding judge, absent. 

Hein of Poidtney "^ 

nu >No. 87. 

Hie city of |«a&yfMe et alt. 3 

^On ttiis day the court proceeded to deliver its opinion on flie 
motions argued and submitted yesterdajr in this cause. When the 
eourt had announced it was about to dehver its opinion, the counsel 
finr ^ complainants inoved to be allowed to fite the aocuments A 
and B, but the court refiised to receive them, stating that it wis 


Ponltnej et aL 9. CJtj of Lafajette et aL 

about to ddiver an ODinion on the cause ; ut>on [ivhich] the oranad 
for die complainuits handed them to the derk^ the court consider- 
ing that the complainants' application to file a bill of reviTor or 
eSLceptions came too late. 

Decree of the Court. 

'^The defendants having moved to dismiss the bin of CQmplamt in 
diis cause, under the 2l8t of the rules in equity cases, and it appear- 
ing tb the court that the complainants had not set for trial die pleai 
filed in this case, nor filed replication to the answers, aldiou^ move 
&an two terms of the court nad elapsed since the filmgof t& sante, 
it is ordered and adjudged, tmd decreed, that the bilfof complaint 
m this case be dLunissed as to all the defendants, and the complain- 
ants pay the costs of suit** 

From wUdi decree, the complainants appealed to this court 

The case was aigued by Mr. Chbm (in writing) for the appel* 
lants, and Mr. Cmps, for the appellees. 

The foDowinff is an extract fiom Mr. QArn^s argument : 
The bill in this cause was dismissed under the 21st rule of this 
court, prescribed for the inferior courts in chanceiy causes, because 
<< the plaintifls had not set for trial the pleas filed, nor filed replica- 
tions-to the answers, although two terms of the court had elapsed 
since filing the same." To all this it is confidentlv responded, that 
diere were no pleas filed in the cause. Some or the defendantB, 
availing themselves of the 23d rule of practice, instead of filing a 
formal demurrer.or plea, did insist on some specud matter in the 
answers, which diey left with the clerk of the court, and claimed to 
have the benefit th^eof, as thou^ they ha4 pleaded the same mat* 
ter. They commence " The several answer of," fcc. — "The said, 
answer also to serve and be instead of a demurrer and pleas to the 
said bill of complaint" — ^Was there then a plea in the cause? 
Sorely not There was somediine else ; there was an answer to 
serve and be instead of a plea, ana of virhich the party claimed the 
advantage, as under the answer and not under a plea : and so it 
was regarded by the court when an application was made to it to 
try the question of citizenship : — and aldiougfa the party could avail 
himself of all the matter, by way of answer, the plaintiff could not 
odierwise reg^d it than as an answer, and could do no otherwise 
towards forming an issue, without leave of court, than file a general 
replicadpn to it, as an answer. 

It is said, in die ohler dismissing the bill, that more than two 
terms had elai^sed smce filing the pleas. Now if the most rigid 
and technical interpretation m the rules are to be had, and £qr 
diall be conformed to to the letter, it becomes important to ascer- 
tidn when the pleas of die defimdant were filed. Tlie answers of 
some of the defendants appear to have been lodged with the clerk 
of die court in his ofSce, on the day of ; d^ete was no 


Ponltnej et aL t. City of Lafaytstte et aL 

notice taken of them upon the rule docket or in the minutes of the 
court, and consequently they "were not parts of the ]:ecord ; the de^ 
fendants were not bound by them, and tlie' complainants were pot 
notified of their being on file'. On the 24th, 30th, and 31st of 
X)ecember, 1839, ahfl on the 19th February, 1840, notes are made 
upon the rule docket of the filing of answers upon those days, l>at 
Qpthing is said about the filing of pleas. Neither of those days 
were or could have been rule days ; consequently the act was nuga- 
tory. On the 24th of December, 1839, a motion was sustained to 
set aside the decree nisij and leave was given the defendants to file 
answers, which does not appear firom the minutes then to hsCve been 
done ; and the complainants were, 'by order of th^ court, protected 
in their ridnt thereafter to file any exception to the answers that 
mi^t be med. Let it be borne in mind, that the de"cree;nin was 
set aside without putting the jparties defendant upon any terms 
whatever ; they were u6t even compelled to pay costs. 

In the answers various record and documents are properly refimred 
to as exhibits, and constitute parts of the answers-4he most. mate-, 
rial and only important parts, and without the fihngpf which ^ 
plaintiff could not safely proceed in making up an issue in the cause. 
At the January rules, lo42, these ^cUbits were, for the first time 
filed, and noted upon the rule docket — they never having; been 
before even lodged with the clerk. U]^ to that time the filing of 
answers was not complete ; then for the first time the cause stood 
upon bill and answer— and at the same time the cause was set for 
hearing by the defendants, on t)ie merits, fof Friday, the 14th Janu- 
ary. 1842 ; at the same time they suggested the deiith of Layton, 
and the names of his heirs^ and ^ook an order at the rules the: they 
be parties. There was then clearly a misconception by the court, 
fliat more than two terms had elapsed since the fiUng of the pleas 
and before the order dismissing the bill. 

it doth clearly appear firom the 17th rule, that issues are to be 
formed, and causes are to be prepared for trial, at the rules and 
upon the rule days, and that neither party is bound to notice ^e 
proceeding of his adversary except they be then entered in the rule 
book, or uiej be had in open court. 

The court below predicated its order dismissing the bill some- 
what upon the failure of the plaintiffs to file replications to the 
answers, and sufTering^two terms to expire. 
• Pending a motion made by the complainants to set a^de the rule 
for hearing of the cause upon its merits, and to remand the cause 
to the rule docket, that an issue might be had, and during the argu- 
ment of that motion, the defendants moved to dismiss the biU under 
the 21st rule, without any previous rule therefor, without any pre- 
vious notice thereof, and in direct conflict with dieir rule fc{r a trial 
of the cause upon its merits, which thev had taken. Thexourt, in 
pronouncing the order, says : ^^ The defendants having moved to 


Poultnej et aL v. City of Lafayette et aL 

dismiss under the 2l8t rule» and it appearing to the court that the 
complainants had not set for trial the pleas filed, nor filed rqplica- 
tions to the answers, although two tenps of the court had elqwed 
flince the filing the same, it is ordered and adjudged, and decreed, 
that die sidtDe dismissed ^^ as to all of the detendants.'' In re- 
sponse, therefore, to an application to remand the cause to the rules, 
and in response to an appucation to disnuss under the 21'st rule, he 
does dismiss under that rule ; and because the plaintiff had not 
replied to the answers. 

The plaintifls were not bound to notice or reply to the answeif 
ontQ two calendar months after they were put in, nled at the rules, 
or in <K>en court ; and upon their failure to reply, or file exception^ 
they mi^ be ruled to reply ; and unon the expuration of that rule, 
aadf no replication or exceptions filed, the suit mi^ be dismissed : 
but eiven then, m the discretion of ih court, the cause mi^ be 
retained upon the payment of cost. — i <ife 13tk. But in this case 
diere had Deen no rule for replication. 'No pains of dismissal could 
be inflicted upon the plaintiff for Ming to reply, until he was ruled 
to do so. It was then a vain invocation of the 13th rule to sanction 
a dismissal moyed for under the 21st. 

After filing a replication it would be too late to exc^f to an 
answer ; but the courts, in the exercise of a sound discretion, and 
for the attainment df justice, would suffer the renlication to be with^ 
drawn and exceptions had. But) at any time oefore replication, it 
is the ri^t of the plaintiff, at the rules or in opeii court, to file ex* 
oeptions to the defendants' answers ; and this ng^t was particularly 
secured to the plaintifls, without limitation as to time, ^)pon setting 
aside the decree niti. The court will not ordinarily set aside a de- 
cree ntfi, until the coming in of a sufiScient answer. In this cas^ 
tibe rule was ex gratia charted firom ; reserving the ri^t of the 
plaintiffi to reply to tbfe answers when diey should come m. 

Upon the trial of the plaintifib' motion, and before the decision 
diereof— when &ere had been no rule for replication, and the party's 
right to file exceptions to the defendants' answers would appear to 
have been unquestionable— they ofle'red to do so, but the court 
lefiised them permission; and, inasmuch as Robert Lavton had 
subsequently to the preceding term departed this life, ana his heks 
were not properly before the court, the plaintifls offered to file a bill 
of revivor against them, which the court refiised to permit : and 
Widiout accepting any terms, 6r putting the plaintiff upon any terms 
to apeed'fhe cause, put an end to the cause by pronou^cinff a final 
decree— ^d £4 not, even in that, reserve to the plaintifls ue ri^ 
4o commence de novo. 

It is supposed that the decretal order dismissing the plaintifls' bill 
4i erroneous for its ambiguity, and want of reasonable ludicial cer- 
tuiity. After ditoissing the bill as to oZ/ ^ defendant — which 
sgldiesto ^ who had been served with process, or who had been 



Ponltney et aL «. City of Lafayette et aL 

smde defendants in the bill« and who had not answered — ^the decree 
proceeds : ** and the complainants pay the costs of suit with r^ard 
to sudi of the defendants as had filed pleas of demurrers — ^the com- 

Slainant having fidled to reply to or set for hearing such pleas or 
emurrers before the second term of the court after filing the same, 
aereeably to the 21st of the rules of practice for the courts of eauity 
of &e United States, as prescribed ny the Supreme Court of thie 
United States." 

Proctor filed the only demurrer fliat was filed m the cause. An 
issue was had speedily. It was set for hearing, and inasmuch as 
Layton and others relied upon the same matters, mey were all heard. 
The demurrers were overnded, and the defendants ordered to an- 
swer over, which Proctor has never done, notwithstanding^ whidi 
he has succeeded in turning the plaintiff out of court. Now can 
this court ascertain firom the decree, which of the persons named 
as defendants in the complainants' lull are entitled to their costs ? 
&c., &c. 

We therefore conclude that the infeiior court erred, — 

1. In deciding that the defendants, or any of them, had filed pleas 
in ihe cause. 

2. That the failure of the plaintifls to set such pleas down for 
trial should be visited with the pains of disnmsd of weir bilL 

3. Hiat the plaintifi were m de&ult in not replying to the de- 
fendants' ansivers. 

4. In refusing leave to the plaintiff^ to file exceptions to the 
answers, and a bill of revivor against the heirs of a deceased party. 

5. In disihissing the plaintifls' bill as to all or any of the parties. 

6. In awarding costs to the defendants, or any of them, and not 
defining to whom. 

7. In refusing to award a rehearing of the case upon the petition 
and affidavit filed. 

Coxey for appellees, said that after the case was ar^ed in the 
court below, and when the court was about to deliver its opinion^ 
some papers were presented, but the court very properly saia it was 
too late. The prmted ar^;ument refers to the position of the case 
when the judge decided it; and there was nothing in this position 
to prevent the complainants firom filing a replication. The record 
shows that they endeavoured to excuse themselves for this omission 
1^ filinff a petition for a re-hearing; and it is, in fact, from the re- 
fusal ofthe court to grant this that the appeal was taken. 

Mr. Justice McLEIAN delivered the opinion of tiie court 
This is an ^meal firom the decree of the Circuit Court for tiie 
eastern district of Louisiana. 

To determine the point brou^t up by the appeal, it is unneces- 
sary to state tiie substance of the biU-or answers. On motion, ibe 
Circuit Court dismissed the bill, under tiie 2l8t rule, because the 

JANUARY TERM, 184ft, 87 

Kendall «. Stokei et aL 

^^complainants had not set down ¥or hearing the pleas filed in this 
case> wxt Oed Eq>Iication to the answers, although more than two 
tenna.of the-court had el^Mcd feince fihngof the same.'' 

The role referred to is, <^if tlkapIaintSr shall not reply to, or set 
for hearing any plea or demorierbdfore the second term of ttie court 
after filing the same, the bill may be dismissed, with costs." No 
plea had Deen filed in the case^ and the demurrer filed had been 
OTerruled, so^iat the rule did not apply to the case as it stood at the 
time of tfae^ dismissal. The rule can only apply to demurrers and 
pleas technically so called. And there is no other rule of proceed- 
mg winch autlu>rized the decree of the court Hie complainant 
nuTf, if he choose, go to the hearing on the bill and answer. 

The decree of ^e Circuit Court is reversed, and the cause is re- 
manded for fiuther proceedings. 

Amos KstmAu., PLAnmrF nc saaom, v. Wiluam B. Stokss, Luonrs 
W. Stockton, and DANitx. Moorb, suktitobs of RicsARn C. ^tocx* 


[The reader ia referred to a former ease befweeia Chete parties, r ep o r t e d 
ia IS Peters, 6S4. The decision of the eoart in the present case is -so intimately 
coniiected with the facts In both, that it is impossible to gire a clear acconnt 
of the principles established, without a reference to those facts.] 

After the decision in the former case^ Stokes, dto., brought a suit against Ken- 
dall, which rested nltimately on two counts, Tiz., the ftrst and fifth. The first 
claimed daipages for the suspension, by Kendall, on the books of the Posi- 
ofBce Department, of certain credits which had been entered by his predeoee* 
•or. The fifth, for the refusal, by Kendall, to credit Stokes, dsc, with the 
Amount awarded in their fhTour by the solieitor of ihe Treasury. 

The damages claimed in the first count constituted a part of the reference to 
the solicitor, as shown br the plaintiA below in> their own eridence. 

After a reference, an award, and the reception of the money awarded aaodier 
suit cannot be maintained on the original cause of action, upon the ground 
that the party had not prored, befbre the ref<i^ree, aU the damages he had 
sustained, or that his damage -exceeded the amount which the arbitrator 

The acts complained of were not ministerial, but were oiBcial acts, done by 
KendaU in his character of postmaster^enenkL A public officer, acting finom 
a tease of duty, in a matter where he is required to exercise discretion, is not 
•liable to an action for an error of JiJidgment 

With regard to the fifth count, the' application fbr the mandamus covered the 
same ground as that taken in this count Both rested on the refhsal of Kn^ 
daU to pay a sum of money to which Stokes, dtc, were lawfully entided. 

But where a party has a choice of remedies for a wrong done, selects one, pro* 
eeeds to judgment, and reaps the fruits of his Judgment, he cannot afterwards 
proeeed in another suit for the same cause oi action. 

Tins is especially true where the par^ has resorted to a mandamus, because it 
is not Issued where the law aflfords a party any other adequate mode of re* 
dvesSi To allow him to maintain another suit for the same cause of actioa 


Kendall v. Stokes et aL 

would be inconsisteiit with the decision of the court which awar^ die 
EvideDce of special damage was improperly admitted, under the circumstances 
of the case m the court below. 

This case was brought up, by writ of error, from the Circuit Court 
of the United States for the District of Columbia, sitting for the 
county of Washington. 

The Supreme Court of the United States having aflSrmed (12 Pe- 
ters, 524^ the decision of the Circuit Court, awarding a mandamus 
against Amos Kendall, application was made by Stokes, &c., to 
Kendall, that the sum of money mentioned in the proceedings should 
be carried to their credit on the books of the department. Kendall 
declined to interfere in the matter, upon the ground that the ^* audi- 
tor" had charge of the books, and that he himself had no power to 
settle claims, and no money to pay them with. On the 30th of 
March, 1838, a peremptoiy mandamus was issued by the Circuit 
Court, commanding lum to obey and execute the act of Congress 
immediately upon the receipt of the writ, and certify perfect obe- 
dience to it on the 3d of April next. 

On the 3d of April, Mr. Kendall addressed a letter to the court, 
saying that he had communicated the award of the solicitor of the 
Treasury to the auditor, and received from him official information 
that the balance of said award had been entered to the credit of the 
claimants, on the books. 

Ip. October, 1839, Stokes, &c,, brought a. suit against Kendall. 
The declaration consisted of five counts, three of which were aban- 
doned after a verdict and motion in arrest of judgment. The two 
remaining were the first and fifth. 

The &st count averred, in substance, that the plaintiffi, with 
Richard C. Stockton, deceased, under and in the name of said 
Richard, were contractors for the transportation of the mails of the 
United States, by virtue of certain contracts entered into between 
them and the late WiUiam T. Barry, then postmaster-general of the 
United States. That the said William T. Bany, as postmaster- 
gnsneral, did cause certain credits to be given, allowed, ana entered in 
9ie boolu, accounts, and proper papers m the Post-office Department, 
in fiivour of the plaintifis ana said Kichard, as .such mail contractors, 
nnder and in the name ctf said Richard. That the defendant, onr 
succeeding Mr. Bany in the office of postmaster^general, wrongfuDy, 
illegally, maliciously, and oppressively caused said items of account, 
so entered, and credited, and allowed, and upon which payments 
had been made, to be suspended on the books, accounts, and papers 
of th<; Post-office Department; and did cause said plaintiffs and said 
Richard, under and in the name of said Richard, to be charged on 
said books, papers, and accounts, with said several items ana suma 
cf mon^, amountmg to $122,000. 

Hie Mi count averred the passage of a private act of Congrea, 

JANUARY TERM, 184<L 8ft 

Kendall »» Stokei et aL 

entitled "An act for tiie relief of Wm. B. Stokes, Ri<iard C^ Stock- 
ton, Ludus W. Stockton, and Daniel Moore,'' by which the solicitor 
of the Treasunr was au&orized and required to determine on the 
eanitjr of the claims of them, or any of them, {[rowing out of certain 
aUeg^ contracts between them and Mr. Barry, and by which the 
postmaster-general was directed to credit them with such amounts 
as mig^l be awarded,^pursuant to the act This count also averred 
die actual rendition of an award by Virgil Maxcy, then solicitor of 
the Treasury, for the sum of $162,727 05, in &your of Richard C. 
Stockton, as the representadve of himself and the plaintifib below, 
and the refusal of Mr. Kendall to comply fully with the terms of the 
award, by crediting them with the full amount awarded. 

Hie cause came on for trial at November term, 1841, which re- 
sulted in a verdict for the pjaintifls. . 

After die reoidition of the vardict aforesaid^ the defendant produced 
die following certificate by the said jurors, and prayed the court to 
be permittea to have the same entered on the minutes of the court, 
to which the court assented, 

"We, the jurors, empanneUed in the case of William B. .Stokes 
and others v. Amos Kendall, and in which case we have this da^ 
rendered our verdict for the plaintiffs for $11,000, do hereby certify 
that said verdict, was not founded on any idea that the defendant 
performed the acts complained of by the plaintifis, and for which we 
gave damages as sibove stated, with any intent other than a desire 
midifully to perform the duties of his office .of postmaster-general, 
and protect me jiublic interests committed to lus cnarge ; but the said 
damages were given by us on the ground that the acts complained 
(^ were illegal, and that die said sum of $11,000 was the amount 
of actual di^age to plaintifis estimated by us to have resulted from 
said illegal acts." 

Upon the trial the defendant took three biUs of exceptions. 

The 1st exception was to the competency of the evidence to sus- 
tain the action. The evidence offered by me plaintifis was: 

1. A transcript of the record in the mandamus case. 

2. The report of Virril Maxcy , solicitor of the Treasury. 

3. Sundry letters ana documents. 

4. Oral testimony relating to the partnership. 

The defendant oflered four prayers to the court, praying instruc- 
tions to the jury that the defendant was not re^nsible to me plain* 
tifis in the n^t in which they then sued under the Ist count; that 
he was not hable under (he 5th count for refusing to compW with so 
much of the award of the solicitor as he, on the ground of want of 
jurisdiction in die said solicitor, refused to complv with ; that he was 
not liable for consequential dsunages ; and diat the plamti£& had no 
joint right of action. 

AH of which prayers were refused by the court, to which refusal 
die defendant excepted. 

Vol. m.— 12 h 2 


Kendall v. Stokei «t aL 

2d Bill of Exceptions. 

The defendant then offered in evidence sundry depositions and 

1. The depositions of Andrew Jackson, Martin Van Buren, and 
B. T. Butler. 

2. Correspondence between Mr. Kendall and the attomey-generaL 

3. The attorney-general's opinion, Doctunent No. 123, 26th Con- 
gress, 2d session, House of Rep. Ex. Doc. page lOip. 

4. Letter from the solicitor of the Treasury. 

5. Reports of post-office committees of Senate and House. 

6. The eTidence of Francis S. Key, Esq. 

Upon all which evidence the defendant rounded four prarjrers: 

1. That plaintifis were not contractors. 

2. That defendant was not liable if he acted dBrom a conviction 
fliat it was his official duty to set aside the extra allowances. 

3; That he was not liable if he acted from a conviction that the 
solicitor had no lawful iurisdiction to audit and adjust the items, &c. 

4. That he was not uable for any of his acts, it the jury believe 
that he acted with the band fids intention to perform duly tne duties 
of his office, and without malice or intention to injure and oppress 
the plaintifis. 

All of which prayers the court refused to grant, and to the refusal 
the defendant excepted. 

3d Bill of Exceptions. 

The plaintifis offered evidence to prove their special expenses &nd 
losses, such as counsel-fees, tavem-oills, discounts, &c., to the ad- 
mission of which evidence the defendant objected; but die court 
overruled the objection and allowed it to be given. To which over- 
ruling the defendant excepted. 

Tlie case came up upon all these grounds* 

Dent and Jemet, for the plaintiff* in error. 
C(Kce, for defendants. 

Dent laid down the following propositions: 

1. That the official acts complained of in the declaration amount 
to nothing more than a breach of contract, and a refusal to pay mo- 
ney due by contract and award. 

2. That ^ese acts, with what motives, aggravations, or conse- 
quences soever accompanied, lay no ground for an action, sounding, 
in damages, as for an official or personal tort or misdemeanor. 

3. But as the case is now present^ by the record, it is a oemcef- 
ftun, that the defendant's motives for the acts complained of were 
clear of all malice, self-interest, and intention to vex, harass mjure, 
or oppress'the plaintiffi, and proceeded from no other intent man a 
desire faithfully to perfonpa the duties of his office, and to protect ^ 
public interest committed to his charge; and li\at if the acts com- 
plained of were in truth illegal, or in any way a transgression of his 


Kendall «. Stokei et aL 

public duties, {vAnich, is altogether denied,) flicnr resulted from 
an honest mistake and misapprehension of the aumorily and duties 
of his office; consecfuently, me broad question is noKr {>resented, 
whether an honest misapprdiension of the rights of the plaintiA b^ 
low, and a contestation of those ri^ts, under the influence of honest 
mistake, and in the manner and form appearing by the declaration 
and evidence in the cause, be an official or personal tort or misde- 
meanor. We maintain the negative of this question. 

4. If the plsdntifls have diown, either in pleading or in evidence, 
any cause of action, stiQ we except to all ike evidence of special da* 
mage pretended to have been sustained by the plaintifis, in conse- 
qu^ce of ike defendant's refusal to allow and panr them the Several 
suins of money pretended to be due under then* contract — such as 
discoimts and usury paid by them for monev borrowed, expenses of 
travel, large fees to counsel, tav^n-bills, and other expenses incurred 
in pursuit of their claim against the Post-office Department. We 
maintain that the onlv measure of damages for withnolding money 
due, (whether on public or private account,) is the legal interest on 
the sum due. 

5. That all right of action (if any such ever existed, which is de- 
nied) for the pretended misfeasance complained of in the first count, 
was completdy extinguidied and barred by the act of Congress au- 
thorizing; the solicitor of the Treasury to settle and adjust tte claims 
of die pLadntiffi and R. C. Stockton, or any of thesft, for the extra ser> 
vices, oc., in the act mentioned, and by the foil and final settlei;|&ent 
and adjustment of the same by the solicitor, as diown by the plaintifis. 

6. That all ri^t of action (if any such ever existea,«vduch is de- 
nied) for the pretended nonfeasance complained of in die 5th count, 
(to wit, the non-payment of a certain portion of the solicitor's award,) 
was extinguished and barred by the plainti£' election of their remedy 
by m^damus, and the result of the procediire on such mandamus, 
as diown by the plaintiffiu 

7. That the daendant, as postmaster-general, had authority, and 
was primd fade justified, by the circumstances of the case, for both 
die aicts of pretended misfeasance and nonfeasance complained of: 
Ist, for originally contesting their claims for the pretended extra ser« 
vices afterwards referred to the solicitor of the Treasury; and 5klly, 
for maintaining that the solicitor of the Treasury had exceeded the 
scope of die authority committed, to him by the act of Congress, in 
allowing certain claims not widiin the terms of the submission to his 
award, as defined in the act of Congress; and, consequently, for re- 
fiisins^ to pay so much of die solicitor's award as allowed sudi inad- 
oiissible claims. 

8. That there ia a fiital misjoinder of jmrties in this action; inas- 
much as the plaintifis, by their own diowing, both in pleading and 
in evidence, have no such joint ri^^ts of contract or action 93 they 
have sued on in this case. 


Kendall v. Stokes et aL 

9. That from their own exhibit of the original contracts, under 
which all the plaintifis' claims arise, taken in connection with the acts 
of Congress rdating to the premises, the plaintifis' own case, upon 
their own showing, absolutely concludes against any such joint rights 
of contract and action as are asserted in th^ first count. 

IQ. That from their own exhibit of the awards of the solicitor of 
the Treasury, referred to in their 5th count, their case, ujpon dieir 
own showing, equally concludes against such joint ri^its ofaction as 
are asserted m the 5th count. 

Consequently, the evidence of 0. B. Brown ought to have been 
rejected, as incompetent and inadm sible; and the court ought to 
have allowed the several instructions aslced by the defendant in regard^ 
to such Joint ri^ts. 

li. We mamtain generally, and without exception, that the points 
of evidence, and of law, raised by the defendant in the course of the 
trial, and in arrest of judgment, (as set forth in the several Wia of 
exceptiohs and motions in arrest of judgment, already rdierred to,) 
ou^t to have been sustained by the C^uit Court, and were eiT0« . 
neously overruled, by that court. 

Dent went largely into the histofr of the case, referring to m^ny 
of the public documents which have been mentioned. He then took 
up the points, and contended that the act of 1825, (3 Story, 1985,) 
made the postmaster-general a disbursing, officer of all the revenue 
of ihe department. See also 3 Stonr, 1630,. the 4th section of the 
act of March 3d, 1817; 2 Story, 1091, 5th section of the aqt of 
April 21st, 1808; Gidley v. Pajmerston, 7. J. B. Moore, 91r, 108; 
3 Brod.' & Bingh. 275 ^ 7 Com. Law Rep. 434. 

On the diird point he cited 1 East, 555, 558, and 564, note; 
11 Johns. 114. 

The fourth point he thought too clear to be discussed. 

On the fifth and sixth pomts he contended that the plaintifis were 
precluded firom this action, by hstVing already elected their remedy. 
2 Wm. Black, edition of 18^, 779, 827; 4 Rawle, 287—299; 
17 Pickering, 7—14; 6 Wheat 109; 1 Salk. 11; 2Bos. & Pul. 
71 ; 7 Johns. 21 ; 8 Johns. 384. 

The evidence which the ^laintif& introduced in this case is the 
same which they brought before the solicitor to obtain his award, 
and also in the mandamus case; and this may be shown under a 
plea of the j^neral issue as well as under a plea, in bar. Young 
V. Black. 7 Cranch, 565. 

CoxBy for defendants in error, referred to numerous documents to 
show that there was no misjoinder of parties ; that they had aD been 
recognised as joint contractors; He denied that it was a concesium 
HnLtmeve was no malice ; on the contrary, it is averred in the declara* 
tion. He denied also that the merits of this case had ever hkea 
, settled. They were not by Uie solicitor of the Treasury, whose 


Kendall «. Stokes et al. 

pnmnce it was to decide on the legality or illegality, of Mr. Ken* 
dall's conduct in suspending the payments. They were not setded 
in the mandamus case, which related to an entry which Mr. Ken- 
dall refused to make. The Circuit Court directed him to make it, 
andttie Supreme Court affirmed the decision. 12 Peters, 609. 

Having oisposed of some preliminary objections, Mr. Coxe proceed- 
ed to discuss the Uability of public officers to pay money withhdd, 
and cited 6 T. R. 443; 3 WUs. 443; 2 Kane, 312; 6 Mun. 271 ; 
11 Mass. 350; 3 Wheat. 346; 2 branch, 175; 1' T. R. 493 ; 7 Mass. 
282; 2 Wm. Black. 1141; 5 Johns. 282; 9 Johns. 395; 13 Johns. 
141 ; 1 Cranch, 137 ; 10 Peters, Swartwout's case. 

The defendants' conduct was illegal. See 15 Peters, case of Bank 
of Metropolis; 9 Clarke fc-FinneUy Rep. 2&1, 278, 283; Lynd- 
hurst's opinion, 5284; Ld. Brou^am's opinion. 287-^303, as to 
malice ; SlO, Ld. Campbell's opmion. 

J(me8y in reply and conclusion, referred to several parts of the 
record to show that there was not such a partnership ks would enable 
die plaintifis to sue^ and to othet parts to show mat malice in Mr. 
Kendall was wholly out of the casie. This destroyed all daim for 
consequential damages. 

He dien discussed what constitutes an illegal act . in a public 
officer, so as to make him liable in damages for withholding money, 
and rderred to Story on A^ncy, 308, sect. 305 ; 1 Crandi, 345, 

Upon what grounds actions ex delicto have been maintained 
afi^ainat a public officer, he referred to 1 East, 562, 568 ; and to 
£ow what description and (juality of officers are liable to this action, 
he referred to the case of Gidley v. Ld. Palmerston, 111, 

K the action be really founded upon a fa m of contract, yet, being 
mixed up with tort, eyen defence, goo^ against the form ex con- 
fradu^ is good against the tort. I fquiasse, 172; 8 Dum. & 
East, 335. 

An acton will lie agamst a public officer only when the duty to 
be performed is wholly ministenal, and never in a case where judg- 
ment is to be exercisiefd. United States v. Bank of MetropoliS| 
15 Peters, 403. 

As to the mandamus case, Mr. Kendall did not disobey, for the 
extra allowance extended only to the end of die first quarter of 1835. 

Mr. Chief Justice TANEY delivered the opinion of the court. 

Tlie record in this case is very voluminous,, and contains a great 
mass o{ testimony, and' also many incidental questions of law not 
involving the merits of the case, which were raised and decided in 
the Circuit Court, and tp which exceptions were taken hy the plam- . 
tiff in error. But both parties have expressed their desire tnat the 
controversy should now be terminated by the jud^ent of this court ; 
and that me leading principles whicb must ultimately decide the 
rights of the parties dioidd. now be settled ; and that the case should 


Kendall «. Stokei et aL 

not Lo disposed of upon any technical or other objections which 
would leave it open to further liti^tion. In this view of the sub* 
ject it is unnecessaiy to give a detailed statement of tht proceedings 
in the court below. Such a statement would render this opinion 
needlessly tedious and complicated. We shall b^ better understood 
by a brief summary of the pleadings and evidence, together with the 
particular points upon which our decision turns; leaving unnoticed 
those parts of the record which can have no influence on ^e judg- 
ment we are about to give, nor vaiy in any degree the ultimate 
rights of the parties. 

^ Atthetimeof the trial and verdict in the Circuit Court the declara- 
tion contained five counts. But a/ter the verdict was rendered, die 
plaintifis m that court, with the leave of the court, entered a nolle 
prosequi upon the second, third, and fourth^ imd the judgment was 
c»itered on the first and the fiAh. It is only of these two last men- 
tioned counts, therefore, that it is necessarv to speak. The verdict 
was a general one for the plaintifis, and their damages assessed at 

llie first count states that by virtue of certain contracts made with 
"^^iam T. Barry, while he was postmaster-general, and services 
performed under them, the plaintifils on the 1st of May, 1835, were 
entitled to receive and have allowed to them the sum of $122,OO0l 
and that that stun was accordingly credited to them on the books of 
the Post-office Department; and that Amos Kendall, the defendant 
in the court below, afterwards became postmaster-general, and as- 
such illegally and inaliciously caused the items composing die said 
amount to be suspended on the books of die department, and ttie 
jplaintifis to be charged therewith : whereby they were greatly-in- 
jured, and put to great expenses, and sufiered in their buamess and 

The fifth count recites the act of Congress of July 2d, 1836, by 
which the solicitor of the Treasury was authorized to setde and acU 
just the claims of the plaintifis for services rendered by diem under 
contracts with William T. Banv, while he was postmaster-general^ 
and which had been suspended by Amos KendalL then postmaster- 
general, and to make them such allowances therefore as uj^cm a fidl 
examination of all the evidence mi^t seem right and according to 
principles of equity ; and the postmaster-general directed to credit 
them with whatever sum or sums of mon6y the solicitor should de- 
cide to be .due to them, for or on account of such service or con- 
tract ; and after this recital of the act of Congress, die plaintifis j^ro^ 
ceed to aver that services had been performed by them under con- 
tracts.widi William T. Bany, while he was postmaster-general, on 
whicL their pay had been suspended by Amos Kendall, then p»ost- 
ma^er-genei^, and that for these claims the solicitor of the Treasury 
allbwedthe plamtifis large sums of money amounting to $162,727 05 ; 
that the defendant had notice of the premises, and that it became his 


Kendall «. Stokei 0t aL 

dulyaspostniMler-raiendtDC^^ but 

tibat he ulegallV ancTmalicioudY lefiiaed to |;i?e Ibe credit, bjr reaaon 
whereof tte plamtifi were aabjected to great looa, tfieir credit kn- 
pair^, and they were obliged to incur heavy menaea in proaecutiiig 
ttieir r^ta, to their damage in the aum of $100^000. 

The defaidant plead not guilty, ufNon which issue was joined. 

At the trial, me plointiflEs ofeed in evidence the record of the 
proceedings in the mandamua which iaaued frcmi the Circuit Ciouit 
upon ttieir relation on tibe 7tti ixyct June, 1837, commanding the 
aaifl Amos Kendall to enter the credit fi>r the sum awarded l^ the 
adicitor. It is needless to state at large the proceedings in that 
suit^ as they are sufficientljr ad ferdi in the rqKnt of 1& case in 
12 Peters, 624; the jud^ent of the Circuit Court awarding a per- 
enqitoiy mandamus havmg been brouriit by writ of enor hmtt ttie 
Supreme Court, and there affirmed at January term, 18%. Various 
papers and letters were also offisred in evidimce by tibe plaintifi to 
show that the aUowanoea mentioned in the declaration had been 
suspended by the defiendant ; and diat after the awprd of the soli- 
citor, and'^bmre the original mandamus issued, he had refused to 
credit $39,472 47, part of the sum awarded, upon the ground that 
the items compoong H were not a {lilt of the subject-matter refe^^ 
ind upon which, as the defiandant insisted, the solicitor had no riffht 
to award. Odier pq>erB and letters were dso offered diowing mtt 
after the judgment 9f the Circuit Court awarding a peremptOTV 
mandamus had been affirmed in the Supreme Coiut, the. plamtiffii 
demanded a credit for die above-mentioned balance on the. 23d of 
Harch, 1838: that the defendant declined entering the credit, 
all^^nig that a recent change m the post-office law hM pkced the 
bows and account»of the department in die custody of die audi- 
tor; and some, difficultv havinir arisen on this point, the Circuit 
Court, on the 30th of March, lo38, issued a mandamus command- 
ing the postmaster-general to enter the credit on the books o( the 
department; and to this writ the defendant made return on the 3d 
of April, 1838, that the said credit had been entered by the auditor 
vdio nad the l^al custody of die books. 

Thevriiole of this evidence was objected to bjrthe defiendant, 
but the objectbn was overruled and die testimonyeiven to the j^iy. 
And upon the evidence so oflered by the plaintifls, befdre any evi- 
denoe was produced on his part, the defendant moved fior the follow 
ing^inl^ction from the court: 

<< Hie defendant, upon each and eveiy ai the pbdirtiffi' aaid 
coonfts, severally and successively prayed the opinion of the court 
and tbuBir instruction to the jury that the evidence so as aforesaia 
produced ipd given on the^art of the plaintiflEs, so 6r as the same 
m competent to sustain such count, is not competent and^sufficient 
to be left to the juiy as evidence of any act or acts done or omitted 
or rdEused to be done by the defendant, which legally laid him liable 


Kendull II. ettoJi<?d et aL 

to the plaintifi in this action, nndTer sncb connt, fyt the conaequentid 
daniagea claimed by the plidntifi in such cornt'' — ^Thia instruction 
was refused and ttie defend^t excepted. 

The question presented to thecourt by this motion in subsbmce 
was this: — Had the plaintiffi upon the CTidence adduced by thou 
shown themselves entitled in point of law to maintain their action 
for die causes stated in thdr declaratipn upon the breaches herein 
assigned, assuming that the jury believed die testimony to be true? 

Ine instruction asked for was in the liteture of a demurrer to die 
evidence, and in modem practice has, in some of the states, taken 
the place of it. In die Maryland courts, from which the Circuit 
Court borrowed its practice, a prayer of tibas description at die time 
of the cession of the District and for a longtime befo^, was a fami- 
liar proceeding, and a demurrer to evidence seldom, if ever, resorted 
to. And the refusal of the court was equivalent to an instruction 
that the plaintiiis had shown such a cause of action as would 
authorize the jurv, if diey believed the evidence, to find a verdict 
•in feivour of the plaintiiis, and to assess damages against the drfendr 
ant for the causes of action stated in die declaration. 

Now the cause of action stated in the first count is the suspmnon, 
by the defendant, of the allowances made by his predecessor in 
office ; and of the recharge of jmms widi which' the plaintifli had 
been credited by Mr. Barry wh^n he was tiie postmaster-general. 
And it appeared in evidence, ^ the proceedings in the mandamus, 
diat the plaintifis being unable to settle with tl^ defendant the di9* 
pute between diem on the subject, Aey applied to Congress for 
relief; that upon this application a law was passed refeninfi; the 
ihatter to the solicitor of the Treasury, with directions that he £otdd 
inq'uire into, and determine the equity of these claims, and make 
them such allowances therefor as might seem rig^t according to the 
principles of equity; and that the postmaster-general should credit 
mem with whatever sums of money, if anv, the soUotbr should 
decide to be due ; that the plaintiflb assehtea to this reference, and 
offimd evidence before the solicitor that they were entided to die 
allowances and credits claimed by them ; and that, from die catt* 
duct of the postmaster-general, in suspending and recharging diese 
allowances and credits, they had been compelled to pay a lar^ 
amount in discounts and interest, in order to carry on their busK 
iless ; and that the solicitor had finally determined in fiaivour of their 
claims, and awarded to them the sum hereinbefore mentioned, giving 
them, as appears in his report to Congress, interest on the money 
widihdd from them ; and dso, that, before this su^t was broug^V 
diey had obtained a crecUt on the books of the department fi>r the 
whole sum awarded by the solicitor. 

Assuming, for the sake of the argument, that an action might in 
flie first mstance have been sus^^ against the postmaster-generaL 
can the pfadntifls still support a suit upon the original cause oi 


Kendall •• 8tokei et aL 

action? It was not a controyersf between &e plaintiflh and Amoe 
Kendall as a private individual, but between them and a public 
officer acting for and on behalf of the United States. If they had 
sustained dsumage, it was the consequence of his act, and the ques- 
tion of damages was necessarily referred wim ^ suljject-matter in 
controversy, out of which that question arose. It was an incident 
to the principal mattevs referred, and therefore within &e scope of 
the reference ; and it is not material to inquire whether damages fi>r 
the detention of the money were claimed or not, or allowed or not 
In point of hcty however, the plaintifis did claim interest on the 
money withheld as a damage sustained from the conduct of the 
postmaster-eeneral, and offered proof before the solicitor of die 
amount of discounts and interest they had been compdled to pay ; 
and, moreover, were allowed, in the award, a large sum on that 
account, which was paid to them as well as the pimcipal sum. 
The question, then, on the first count is, can a party, after a refer- 
ence, an award, and the receipt of die money awarded, fnoSntaw a 
suit on the origmal cause of action upon the ground that he had not 
proved, before the referee, all the damages he had sustained? or 
that bis damage exceeded tne amount which the arbitrator awarded? 
We think not. The rule on diat subject is well setded* It has been 
decided in many cases, and is clearly stated in Dunn -v. Murray, 
9 B..& C. t80. Hie plaintifis, upon their own showing, therefore, 
were not entided to maintain their action on the first count, and the 
Uircuit Court ought so to have directed the juiy. 

The judgment upon this count is also liable to another objectioa 
ecpally fatd. The acts complained of were not what die law terms 
mmisterial, but weire official acts done by the defendant in his di|h 
meter, of postmaster-general. The declaration, it is true, charges 
Qiat they were maliciously done, but diat was not the ffround iqKm 
5diich me Circuit Court sustained the action eithef on ttiis count or 
the fifth. For, among other instructions moved for oni>dialf of the 
defendant, (he court .were requested to direct the jury : 

<< That, if .they found £t^m the evidence Vthat tibe postmaster^ 
general acted torn the conviction that he had lawful power and 
authority as postinaster-general to set aside the extra allowances 
made by his predecessor, and to suspend and recharae the mncL 
and Srom a conviction that it was his official duty to cb so ; and it 
die plaintifis suffered no injury firom such official act, but the inc<Hi» 
veniences necessarily residting therefix>m, that the defendant was not 

This instruction was refused; the court therebyin effect giving 
the jury to understand diat however correct and praiseworthy the 
motives of the officer might be, he was still liat»le to the action, and 
chargeable with damages. 

We are not aware of any case in England or in this countnr ni 
which it has been held that a public officer, acting to thel)est of his 

Vol. m.— la I 


Kendall «. Stokes et al. 

ia^tement and from a sense of duty, in a matter of accoi;int -with an 
mdividua], has been held tiable to an action for an error of judgment. 
Tlie postmaster-general had undoubtedly 4ie right to examine into 
tius account, in order to ascertain ivhether there ^ere any errors in 
it which he was authorized to correct, and whether the allowances 
had in fact been made by Mr. Bany ; and he had a right to suspend 
thcM items until he made his exammation and formed his jud^^ment. 
It repeatedly and unavoidably happens, in transactions with the 

Stremment, that money due to an mdividual is withheld from him 
' a time, and payment suspended in order to afibrd an opportunity 
for a more thorough examination. Sometimes erroneous construc- 
tions of the law may lead to the final rejection of a'claim in cases 
idi^e it ouriit to be allowed. But a public officer is not Uable to 
an. action if he falls into error in a case where the act to be done is 
not- merely a ministerial one, but is one in relation to which it is his 
dotY to exercise jud^ent and discretion ; even althou^ an indivi- 
dual may sufier by his mistake. A contrary principle would indecf^ 
be pregnant widi die greatest mischieft. It is unnecessary, we think, 
to refisr to the many cases by whidi this doctrine has been establi^ed. 
It was fully recogms^ in the case of Gidley, Exec, of Holland^ v. 
Ld. Pahnerston, 7 J. B. Moore, 91, 3 B. & B. 275. 

The case in 9 Clark &Fiimelly, 251, recently decided in England^ 
in the House of Lords, has been much relied on in the argument for 
die defendant in error. But upon an examination of that case it will 
be found that it ha^ been decided by the Court of Session in Scot- 
land, in a former suit, between the same parties, that die act com- 
plained of was a mere ministerial act which the party was bound to 
perform; and that this judgment had been affirmed in the House of 
Lords. And the action against the party, for refusing to do the act, 
was maintained, pot upon the ground only that it was ministerial. 
but'Jbecause it luid been decided to be such by the hi^est judicial 
tribunal known to the laws of Great Britain. The refiu^ for which 
the suit was brought took place after this. decision ; and the learned 
Lords, by whom die case was decided, held that the act of refusal, 
under such circumstances, was to be r^arded as wilful, and with 
knowledge ; that the refusal^to obey the lawful decree of a court of 
Jastice was a wrong for which the party, who had sustained injury 
by it, mi^t maintain an action, and recover damages against the 
wron^oer. Thiis case, therefore, is in no respect in conffict with the 
principles above stated ; nor with the rule laid down in d^e case of 
Gidley v. Ld. Palmerston. 

In the case bdbre us the setdement of the accounts of die plain- 
tifis properly beloneed to the Post-office Department, of whic^ die 
defendant was the head. As the law then stood it was his duty to 
exercise his judgment upon them. He commitfed an error in sup- 
posing that he had a right to set aside allowances for services rendered 
upon which his predecessor in office had finaDy decided. But as the 


Kendall «. Stokes et aL 

case admits that he acted from a sense of pabUc duty and vitbout 
malice, his mistake in a matter properly belonging to tne department 
oyer which he presided can give no cause of action against him. 

We proceed to the fifth count But before we examine the cause 
of action there stated, it will be proper .to advert to the prindplei 
setded by this court in the case of the mandamus hereinbefore re- 
ferred to. The court in that case, q>eakin^ of the nature and cha- 
racter of the proceeding by mandamus, which had been fiilly aigued 
at the bar^ said that it was an action or suit broug^ in acourt of 
iusdce, assertinfi^ a right, and prosecuted according to the forms of 
judicial proceeding ; and tli^t a party was entiUed to it vrbea there 
was no other adequate remedy ; and that although in the case then 
before them the plamtifls in the court below might have brought their 
action against the defendant for damaees on account of his refusal to 
give the gredit directed by the act of Congress, yet as that remedy 
mifi;ht not be adequate to affopd redress, they were, as a matter o{ 
right, entided to pursue the remedy by mandsunus. 

Now, the former case was between these same parties, and the 
wrong flien complained of by the plaintifis, as well as in the case 
before us on the fifth count, was the refusal of the defendant to enter 
a credit on the books of the Post-office Department for the amount 
awarded by the solicitor. In other words, it was for the refiisal to 
pay them a sum of money towhich they were lawfiilly entitled. The 
credit on the books was nothing more than the form in which the 
act of Congress, referring the dispute to the solicitor, directed the 
payment to be made. lor the object and effect of that entiy was to 
discharge the plaintiff fix)m so much money, if on other accounts 
diey were debtors to that amount ; and if no other debt was due 
from them to the United States, the credit entided them to receive a^ 
once firom the government the amount credited. The action of man- 
damus was brought to recover it, and (he plaintiffs show by their 
evidence that thev did recover it in that suit. The mst of the action 
in that case was tne breach of duty in not entering me credit, and it 
was as^gned by the plaintifis as their cause of action. The cause 
of action in the present case. is the same; and the breach here 
assigned, as well as in the former case, is the refusal of the defend- 
ant to enter this credit. The evidence to prove the plaintifis' cause 
of action is also identical in both actions. Indeed, the record of the 
proceedings in the mandamus is the testimony relied on to diiow the 
refusal of the postmaster-general, and the circumstances under which 
he refused, and the reasons he assigned for it. But where a party 
has a choice of remedies for a wrong done to him, and he elects 
one, and proceeds to judgment, and obtains the fruits of his judj^ 
ment, can he, in any case, afterwards proceed in anotiier suit for the 
same cause of action? It is true that in the suit by mandamus the 
plaintifis could recover notning beyond the amount awarded. But 
they knew that, when the}t elected the remedy. If the goods of a 


Kendall «. Stokes et al. 

party are forcibly taken away under circumstances of violence and 
liggravationylie may bring trespass^ and in that form of action recover 
'not only the value of the property, but also what are called vindk> 
tive damages — ^that is, such damages as the jury may think propar 
to give to punish the wrongdoer. But if instead of an action of tres- 
paai he elects to bring trover, where he can recover only the value 
of the property, it never has been supposed that, afler having proser 
cuted the suit to judgment and received the damages awarded him, 
he can then bring tre^ass upon the ground that he could not in the 
action of trover give evidence of the Circumstance of aggravation^ 
which entitled him to demand vindictive damages. 

/The same principle is involved here. The plaintiffs show that 
they have sued for and recovered in the mandamus suit the full 
amount of the award; and having recovered the deW they now 
bring another suit upon the same cause of. action, because in the 
former one they cotUd not recover damages for the detention of the 
money. The. law does not permit a party to be twice harassed for 
^ same, cause of action ; nor sufier a plaintiff to proceed, in one suit 
to recover the" principal sum of n^oney, and then support another to 
recover damages for the detention. Tliis principle ^ill be foimd to 
be fully recognised in 2 Bl. Rep: 830, 831 ; 5 Co. 61, Spank's case; 
Com. Dig. tit Jidian^ K,, 3. And in the case of Moses v. Afacfio'lan, 
2 Burr. 1010, Ld. Maosfield held that the plaintiff having a r^t to 
bring an action of assumpsit for money had and received to his use 
on a special action on the case on an agreement, and having made 
his elation by bringing assumpsit, a recovery in that action would 
bar one on the agreemeilt, although in the latter he could not only 
recover ttie money claimed in the action of assumpsit, but also md 
costs and expenses he had been put to. The case before us &Us 
directly vrithin the rule stated by Ld. Mansfield. 

This objection applies widi still more force, when, as in this in- 
stance, the party has proceeded by mandamus. • The remedy in that 
form, originally, was not re^farded as an action \)y the party, but as 
a prerogative vmrit commanding the execution of an act, where other- 
wise justice would be obstructed; and issumg only in cases relating 
to ihe public and the government ; and it was never ise^ued when the 
party had any other remedy. It is now regarded as an action by the 
party on whose relation it is granted, but subject still to this restric- 
tion, that it cannot be granted to a party where the law kfibrds him 
any other adequate means ot redress. Whenever, therefore, a man- 
damus 'is applied for, it is upon the ground that he cannot obtain 
redress in any other form of proceeding. ■ And to allow him to bring 
another action for the very same cause af^.er he has obtained the 
benefit of the mandamus, would not only be harasang the defendant 
with two suits for the same thing, hut would be inconsistent with 
the grounds upon which he asked for theinandamus, and inconsistent, 
also with the decision of the court which awarded it. If he had 


Kendall «. Stolies et aL 

anodier remedy, ^diidi waa incon^lete and inadequate^ he abandoned 
H by applying for and obtaining the mandamus. It is treated both by 
him and the court as no remedy. Such wasobvioudy the meaning 
of the Supreme Court in the opinion deliy^^d in the former suit 
between mese parties, where 4hey speak of the action on the case, 
and give him me mandamus, because the other fonn of action wai 
inadequate to redress the injury, and tiiey would not therefore require 
the plaintifis to pursue it. And they speak of the action on the. case 
as an alternative remedy; not as accumulative and in addition to the 
mandomus. Jn the case in 9 Claik & Finnelly, 251, hereinbefore 
mentioned upon another point, the attorney-general in his argument 
said that no other action would lie in any case where the pa^ was 
entided to a mandamus. And Ld. Campbell, in giving his judgment^ 
said that this proposition was not uitivei:^y true} and at B^y rate 
qiplied only to tiie ori^al jnant of the mandamOf^ and not to the 
remedy for disobeying it; and that no caise had been cited to Aow 
that an action would not lie for disobedience to the iudement of the 
court. This remark upon the pnqioflttion stated by me attorn^* 
general shows clearly that in his judgment you could not resort to a 
mandamus and to an^acti<m on the case also for the same thing.' If 
the postmaster-general had refused to obey the mandamus, then 
indeed an jeiction on tiie case mi^t have been maintained against 
him. But the present suit is not brought on that ground. No 
question is presented here as to the neceissity of i^leading a former 
recoreiy in bar, nor as to the right to ofier it in evidence upon the 
gmeral issue. The point in the Circuit Court did not arise upon the 
pleading of the defendant, nor upon evidence <^red by him; but 
upon the Q^se made hy the plainti£&, in which^ by the same evidence 
t^ proved their original cause of action, tiieyjalso proved that they 
had ah^ady sued the defendant upon it, and recovered a judgment, 
ndbich haa been .satisfied before this suit was 'brought And we 
Hunk upon such evidence the instruction first above mentioned ouriit 
to have been given on tibis (tiie fifth) count, as it appeared by me 

J)laintifi&' own showing that they had' already recov^^ satis&ctioh 
or the injury complained of in their declaration. * 

The case before us is altogether unlike the cases referred to in the 
ai]eument, where, after a party has been admitted or restored to an 
office, he has maintamed an action of assumpsit or case to recover 
th^ emoluments which had been received by another, or of vrtiich he 
had been depriyed during the time of his exclusion. In those case^ 
tiie cause of action m t^^ mandamus was the exclusion from office; 
and the suit afterwards brought was to recover the emoluments and 
profits to which his admission or re.storation to office showed him to 
have been .legally entitled. The action of assumpsit or case would 
not have restored him to the office, nor have ^cured his r^t to the 
profits. But in the case before the court, if this action had been re^ 
sorted to in the first instance, instead of the mandamus, the plaintiffs 



K&ndail «. Stokes et aL 

could have recoyered the amount due on tbe award, and the damages 
arising from its unlawful detention must have been assessed and re- 
corered in the same verdict Clearly, Aey could not have main* 
tuned one action on flie case ferthe amoimt due, and Aen brought 
another to recovor &e damages; and this, not because both were 
actioib on the case, but because ikkej could not be permitted to ha- 
rass the defisndant with two suits for the same thing, no matter by 
what name ihe actions may be technicdly called, nor whether both 
are Actions on the case, or one of them called a mandamus. 

But if this adion could have been maintained, we think diat moqt 
of the evidence admitted by tlie Circuit Court to enhance die damages 
oudit not to have been received. It consisted chiedy oi discoimts 
and interest paid b^ the plaintiffi before the award of. the soHdtor, 
and of expenses on journeys and tavern bills, and fees paid to coun- 
sel for prosecuting their claim before Congress and the courts. It 
appears by the record tbBt before this evidence was ofiered the court 
had instructed the jury, that malice on flie part of the defendant was 
not necessaiy to sunport the ^action; and it appears also that tbe 
jury, which found me verdict and assessed the dami^;e8, declared 
that their v^erdict was not founded on any .idea that the defendant 
did the acts complained of, and for which they gave the damages of 
$11,000,* widi any intent other than a desire udrnfoUy to perfonn the 
duties of his o&ce of postmaster-general, and to protect the public 
mterests conunitted to ms charge, and that the daniages were given 
on the ground that his acts were illegal, and that the sum eiven was 
the amount of the actual damage estmiated to have resulted from his 
iU^d acts. 

We have already said that although this action is in form for a 
toit, yet in substance and in truth it is an action for the non-payment 
of money. And upon the. principles upon whidi it was supported 
by the court, and oecided by the jury, if there had been no proceed- 
ing by mandamus to bar the action, the legal measure of damages 
upon the fifth count would undoubte<Uy have been the amount crae 
on the award, with interest upon it^. 

The testimony, however, appears to have been offered chiefly un- 
der the first count, because the items for interest paid, and travelling 
and 'tavern expenses, for the most part, bear dates before the awanj^ 
and also a portion of the fees of counsel. , The evidence was certain- 
ly inadmissible under this count, since, for the reasons already given, 
no action could be maintained upon it, if there had been no previous 
proceeding by mandamus, and consecaently no damages could be 
recovered upon it. But iudependentiy of this consiaeration, and 
even if the action could have been sustained, there are insuperable 
objections to the admission of this testimony. In the first place, no 
special damages are laid 'in the declaration; and in that form of 
pleading no oamages are recoverable, *but such as the law imphes to 
have accrued from the wrong complained of; 1 Chit PL 386: anid 

JANUARY TERM, 1845. 108 

Ex parte Dorr. 

■■ ■ ■ » . r 

certainly die layr does not imply damages of the description abpve 
stated. But we think the evidence was not admissible m any fona 
of pleading. In the case of Hathaway v. Barrow, 1 Camp. 151, in 
an action on the case for a conspiracy to prevent the plaintiff from 
obtaining Lis certificate imder a commission of bankruptcy, the court 
refused to receive evidence of extra costs incurred by the plaintiff in 
a petition before the chancellor. In the case of Jenkms v. Biddulph, 
4 Bingh. 160, in an action against a sheriff for a fieJse return, the 
court said they were clearly of opinion that the plaintiff was not 
entitled to recover the extra costs he had paid ; that, -as between the 
attorneys and their clients^ the case might be different, because the 
attorney might have special instructions, which may warrant him in 
incurrinjg the extra costs, but that in a case like the one before them 
flie plamtiff could only claim such .costs as the prothonotary had 
taxed. And in the case of Grrace v. Moi^an, 2 Bingh. N. C. 534, in 
an action for a vexatious and excessive distress, the plaintiff was not 
allowed to recover as damages the extra costs in an action of replevin 
which the plaintiff had brought for the goods distrained ; and the 
case in 1 Stark. 306, in whicn a contrary principle had been adopt- 
ed, was overruled. 

These were stronger cases for extra costs than the one before ii& 
The admission of the testimony in relation to the largest item in these 
duurges, that is, for interest paid by the plaintiffs, amounting to more 
than $9000, is still more objectionable. For it appears firom the 
statement in the exception diat the very same accoimt had been hdd 
before the solicitor, and had induced him, as he states in his report 
to Congress, to make the plaintifls ian allowance in hb award 
for interest, amounting to $d893 93. And to admit this evidence 
again in this suit was to enable the plaintiiis to recover twice for the 
same thing; and after having received from the United States what 
was deemed by the referee a just compensation for this item of 
damage, to recover it over again from the defendant 

There are several other questions stated m the record, but it is 
needless to remark upon thein, as; flie opinions already expressed ' 
dii^K>se of the whole case. The judgment of the Circuit Court must 
be reversed. 

[For the dissentingopinion of Mr. Justice McLtiAH, see App. p.800.] 

Ex Pakti DotiL 

Neither tbe 8oprtme Coort, nor any other conrt of the United Stttes, or jadft 
thereof, can issne a Aa6taf eorfm$ to bring np a prisoner, who is in enstoajr 
under a sentence or execution of a stite conrt, for any other purpose than to 
be used as a witness. 

An application for a writ of erfor, preyed for withont the authority of the party 
concerned, but at the request of his (Heads, cannot be granted. 


Ex parte Dorr. 
■ » * ' " 

Ma. Treadwell moved for a writ of kabeas contu to bring-up 
Thomas^ W. Dorr, of Rhode Island, under the following drculn- 
stances: — 

He stated that Dorr was charged with levying war against die 
state of Rhode Island, and sentenced to the state's prison for life, ia 
June, 1844 ; that upon the trial a point of law was raised, whedier 
treason could be committed against a state, but the court would not 
permit counsel to argue it ; that a motion was made to suspend tfa^ 
sentence until a writ of error could be sued out to bring the case 
before the. Supreme Court of the United States, but the court refused 
to suspend it. He then read affidavits to show that personal access 
to Dorr was denied, in consequence of which his authority could not 
be obtained for an application for such a writ. The present motion 
for a habeas corpus was based upon this fact There was no ottier 
mode of ascertainbg whether or not it was Dorr's wish that his case 
should be brouriit up to this court Under the 14th section of the 
Judioiaiy Act, me power to issue writs of habeas carpus was vested 
in &e judges of flie United States' courts. 3 Story's Com. tit Ju- 
risdicHan, 588, 690, 694, 695, 603, 608, 610, 65^. 

The case was in itself proper to be brou^t up under flie 25th 
section of the Judiciary Act, as the decision of the state court was 
thought to be inconsistent with the Constitution of the United States. 

Mr. Justice McLEAN ddivered the opinion of tbe couit. 

Thomas W. Dorr was convicted before the Supreme Court of 
Rhode Island, at March term, 1844, of treason against the state of 
Rhode .Idand, and sentenced to the state's prison for life. And it 
appears from flie' affidavits of Francis C. Treadwell, a cotmsellor at 
law of tlds court, and ofters, that personal access to Dorr, in his 
confinement, to ascertain ^fhetfaer he desires a writ of error to remove 
the recordof his conviction to this court, has been reAised. On this 
ground the above application has been made. 

Have the court power to issue a writ of habeas carpus in this case? 
This 13 a preliminary question, and must be first considered. 

The original jurisdiction of this court is limited by ihe Constitution 
to cases imecting ambassadors, other pubUc ministers, and consuls* 
and where a state is a party. Its appellate iurisdiction is regulated 
by acts of Congress. Under the commca law, it can exercise no 

As this case cannot be brought under the head of original juris- 
diction ; if sustainable, it must be under the appellate power. 

The Uth section of the Judiciar Act of 1789 provides, <<that die 
courts of die United States shall Lave power to issue writs erf* scirt 
facias J habeas corpus^ an4 all other writs not specially provided for 
by statute, which may be necessaiy for the exercise of their respeo* 
tive jurisdictions, and agreeable to the principles and usages of kw. 
And that either of the justices of the Supreme Court, as weU as 

JANUARY TERM, 1846. 105 

Ex parte Dorr. 

iudges of the District Courts, shall have power to grant writs of 
kabMS corpus for the purpose of an inquiry into the cause of commit- 
ment: Provided that writs of habeas carpus shall in nacase extend 
1o prisoneii in jail, unless where they are in custody under or by 
colour of the authority of the United States, or are committed for 
trial before some court of the same, or are nec^^ary to be brought into 
c^Durt to testify." - 

In the trial of Dorr, it was inasted that die law of the state, under 
which he was prosecuted, was repugnant to ^ Constitution of the 
United States. And on this ^und a writ of error is desiredi under 
the 25th section of the Judiciary Act above named. That as the 
Mayer for this writ can only be made by Dorr or by some one under 
his authority, and as access to him in prison i^ demed, it is insisted 
that the writ to bring him before the court^is the only means through 
which* this court can exercise jurisdiction in his case b^ a writ of 
error. Even if this were admitted, ]^et the question recurs, whether 
this court has power to issue the writ to bring him before it That 
it has no such power under the common law is clear. And it is 
equally clear that the power nowhere exists, unless it be found in 
the 1^ section above cited. ^ 

The power given to the courts, in this 8ection,io issue writs of 
sdre/adas^ haSeas corpus^ &c., as regards the writ of fiabMS carpus^ 
is restricted by the proviso to cases ^ere a prisoner is ^^in custody 
under or by colour of the authority of the United States, or has been 
coHimitted for trial before some court of the same, or is necessary to be 
brought into court to testi^.'' This is so clear, from the language 
of me section, that any illustration of it would seem to be unnecea> 
sary. The words of the proviso are unambiguous. Thev admit of 
but one construction. And diat they'qualify ai^d restrict me preoed- 
inff provisions of the section is indisputable. 

rfeidier tins nor anv other court of Qie United States, or jud^ 
tfaoeof, can issue a habeas corpus to bring up a prisoner, who is m 
custody under a sentence or execution of a state court, for any other 
purpose than to be used as a witness. And it is immaterial vrtiedier 
the imprisonment be under civil or criminal process. As the law 
now stands, an individual, who may be indicted in a Circuit Court 
for treason against the United States, is beyond the power of federal 
courts and judges, if he be in custody under the authority of a 
state. • 

Dorr is in confinement under the sentence of the Supreme Court 
of Rhode Island, consequently this court has no power to issue a 
habeas corpus to bring hun Bdbre it His presence here is not re- 
quired as a vritness, but to signifjr to the court whether he desires a 
writ of error to 'bring before this tribunal the record of his con« 
viction. * • 

The counsel in this application prays for a writ of error, but as it 
appears from his own admission that he does not act under the au- 

Vol. m.— 14 


Cnrtia v. Martin et at 

tbority of Dorn but at the. request of his friends, the prayer cannot 
be granted. In this Tiew it is unnecessaiy to decicfe whether the 
counsel has stated a case, which, with die authority of his cHent, en* 
titles him to a writ of error. 
The motion for 9i habeas corpus is oyerruled. 

Edward Curti8» Plaintiff in error, v. Wiluah Martin and 
Charles A. Coe, Defendants. 

An act of Congress imposing a duty upon imports must be constnied to describe 
the article upon which the duty is imposed, according to the commercial un* 
derstanding of the terms used in the law in our own markets at the time when 
the law was passed. 

The duty, therefore, imposed by the act of 1883 upon cotton bagging, cannot 
properly be levied upon an article which was not known in the maskei as 
cotton bagging in 1882, although it may subsequently be called so. 

This case was brought up by writ of error from the Circuit Court 
of flie United States for the southern district of New Yoric. 

It was an action brought in the court below by Martin and Coe 
against Curtis, die collector, for return of duties upon certain im- 
portations of gunny cloth, from Dundee, in Scotland, from Ajuril 
to September, 1841. 

The facts in the case are clearly stated in the foUowins; brief of 
Mr. Mlsouy attom^-general, who argued the case on behalf of 
Curtis, the plaintiff in error : — 

This was an action brought by the defendants in error affainst 
Curtis, as collector of the port of New York, to recover bade the 
sum of $4543 17 of duties, levied bv him on a certain article as 
cotton bagmig, which, they contended, was ^unnv baggine, a non- 
enumerated article in the tariff of 1832, and therefore duty nee ; and 
the question in die cause was, whether this kind of bagging was cot- 
ton bag^ng within the meaning of the revenue laws?^ liie duties 
were paid under written protest annexed to each entry. 

By the tariff of 1832 it is enacted, that ^^ on cotton bagging three 
and a half cents a square yard, without regard to the weight or 
width of the article," of duty shall be collected. This duty, modi- 
fied by the Compromise Act, was chargeable when the goods were 

The imported article, used as bagging for the packing of cotton, 
is principaUy manufactured in the town of Dundee, in Scotland, and. 
like the oaggmg of Kentudr^, was made of hemp, until the material 
of which the gunny doth of India is mafiufactured began to be used. 
Bagging for cotton has also been made of cotton. 

Gunny (Bengalee G6ni) is a coarse, strong' sackclofli, manu&c- 


'Curtis v. Martin .et aL 

tured in Bengal, for making into bagn, sacks, and packing generally^ 
the material being the fibre of two plants, natives of India, as.hemp 
orimiaily was. (See article ^' Gunny," in McCulloch's Dictionaiy 
of Commerce, American edition, vol. 1, p. 722.) 

Gunny bagging is now manu&ctured in Scotland, as well as in 
In<Ua; and it was admitted, on the part of die defendants in error, 
that the importations in question came firom Dundee, and were made 
into New York between the months of April and September, 1841. 

It was established, by the testimony on both sides, that guimy 
cloth was imported largdy into this countiy, solely for bagging for 
the packing of cotton, since"~1835. In commercial language it has 
smce been known as cotton bagging; but in 1832, at the time of 
the passing of the tariff of that year, it ¥fas not so known. The 
counsel for the collector contended, at the trial in the court below, 
that if the article was, in commercial understanding, known as cotton 
hasgii^ at the time of its importation, it was suoject to" die duty, 
anothat the term cotton ba^fgiog signified any fabric, without ^eard 
to die materials of lArhich it is composed, tnat was used to bak or 
cover cotton, and prayed the l^ourt so to charee the juiry, ^^ch his 
honour refused; but, on^e contrary, charged that the point upon 
which the case turned was, whether the article in question was 
known as cotton bagging in the year 1832, when the tariff act was 
passed. He further charged tliat it was a settled rule of construct 
tion of revenue laws, imposing duties on articles of a sj^Necified de- 
nomination, to construe the article according to the desimation of 
such articles as understood and known m' commerce, and not with 
reference to the material of which they may be made, or the use to 
which they might be implied ; nor ought sudh laws to be construed 
as embracmg all articles winch mi^t be applied to the same use 
and purpose as the specific article. If ii had been the intention of 
Confiress to impose the du^ upon all articles used for cotton 
baggmg, the languaee of the act would have been different, and in 
terms prospective, adapted to such puipoise ; that it had been argued 
on the part of the United States mat die duty was intended to be 
laid on dl\ articles used for cotton bagging, because the duty is laid 
on cotton bagging << without regard to wei^t or measure ;'' but 
that the terms ^^ weight and measure'' were intended to apply to 
different materials then in use for bageing cotton, such as hemp, 
flax, and sometimes cotton cloth, &c., and not to any new articles that 
mig^t thereafter be applied to that use ; so that the whole question 
was, whedier gunny doth was, in commercial understandmg, known 
as cotton ba^;iiig when the law was passed laying the duty, in 
1832? If it was not, they yould find for the plaintiffi; S it was, 
they would find for the defendant. To which charge, in every re* 
spect, the defendant's counsel excepted. 

The jury found for the plaintifis, now defendants in emir* 


Cards «. Margin et aL 

The cause now comes up on a writ of em>r to this court, and for 
error it is assigned — 

That the judge ought to have charged the juiy that the act of 
1832 was prospective; and that the l^slature/in using the term 
^^ cotton bagging," without distinguishing the material* of which it 
was made, meant that all articles which thereafter should be im- 

Eorted for that ptirpose should be subject to duty ; and that gunny 
agging, being known among merchants as cotton bagging at the 
time of the importation of the bagging in question, was subject to duty. 

Xord, for defendants in error, said ^at the points in the case were 
the following: — j 

1. That if gunny cloth was at the time of the passage of the act 
of July 14th, 1832, in commercial understanding, knowri as cotton 
baggine, it was liable to the duty demanded imaer the l4th clause 
of the Sd* section of the act. 

2. But if not so known at the time of the passage of such law, 
then it was not liable^to the duty on cotton bao;ging. 

Whereupon he contended for the two foUowmg propositions, viz. : 
1st Under laws imposing .duties, articles are to be charged solely 
according to their oor jnercial designation at the time of the paasaee 
of the law, and that \.hether the designation be of a class or of incu- 
vidual articles. For this he cited 1 Story's R. 341 , Bacon v. Bancroft ; 
n^id.642, Lee v. Lincok ; 9 Wheat. 434, 438, United States v. 200 
chests tea; »-Peters, 272, United States r. — ^ — sugar; 1 Sunmer, 
159, United States v. Breed; 10 Peters, 272, Elliott v. Swartwout 

2d. The construction claimed here by the importers is fully ad* 
mitted by the government in the act of August SOth, 1842, whereby 
cotton bagging and gunny cloth are subjected, as distinct articles, to 
different rates of duty. Acts of 27th Congress, 5M session, p. 180, 
section 3, clause 3. 

Mr. Chief Justice TANEY deliver^ the opinion of die court 
This case comes before the court upon a writ of error directed to 
the Circuit Court for the soXitheril district of New York. The action 
was brought by the defendants in error against the plaintiff, who was 
the collector of the port of New York, to recover back $4500, which 
had been paid, under protest, as duties upon certam goods imported 
into the port of New York, in April, 1841. The fi|(>ods in question 
were gunny cloths, and were chai^ged by the collector as cotton 


lie defendants in error offered endence to show that, in 1832, 
when the law passed imposing ^ duty on cotton ba^;ging, the article 
in question was not used or known as cotton baggmg; that it was 
then only seen in the form of bags for India goods ; tluk the first im* 
nortation^f gunny doth, to be used as cotton bag^ng, was in 1834. 
It is made fix)m fte yute grass. 
The plaintiff in error proved that tiiese goods, at ^ time of die 

JANUARY TERM,#I846. 100 

Curtis V. Martin et aL 

importation^ were* known in commerce as cotton baggmg ; that diey 
were made of the proper, width for that purpose, and/ for sereral 
years before this importation, gunny cloths had been imported and 
used for cotton bagging; and that the goods in question were im- 
ported from Dundee, in Scotland. 

Upon this evidence, the counsel for the ddPendant contended that 
tf the juij found that the article gunny cloth was, in commercial un- 
derstaadm^, known as cotton bagging at'the time of its importation, 
it was subject to a duty; and thatme term cotton ba^mi^, accdrdhig 
to the commercial und^rsUndine of the phrase, signified any fabric, 
wi&out regard to the material of which it was mcuie, that was used 
to bale or cover cotton, and prayed the court so to charge the jury. 

His honour the iudge refused so to charge the jury ; but, on the 
contrary thereof, charged that the point upon which this case turns 
10 for the decision of the jury, viz. : whether the article in question 
in this case was known as cotton bagging in the year 1832, when 
the tariff acf was passed. It has long been a settled rule of con- 
struction of revenue laws, imposing duties on articles of a specified 
denomination, to 'construe the article according - to flie designation 
of such article, as understood and known in commerce, and not 
with reference to the materials of which they may be made, or the 
use to which thev mijgfat be applied. . Nor oug^t such laws to be 
construed as embracing all articles '^n^ch mig^t subsequently be 
applied to the same use and purpose as the specific article. If it 
had been the intention of Congress to impose the duty upon all 
articles used for baling cottoYi, the language of the act would have 
been different, and m |erms prospective, adapted to such purpose. 
It has been ait;ued, on the part of the United States, that the duty 
was intended to be laid on all articles ulsed for ba^mg cotton, be- 
cause the duty is laid on cotton bagging <^ widiout regard to Iveidit 
or measupe.'^ These temCis, "weight or measure," were intended 
to apply to difierent materials then in use for bagging cotton, such 
as h^mp, flax, and sometimes cotton cloth, &c., and not to any 
new articles diat midit thereafter be applied to that tise. So that fiie 
whole question of met for the jury is whether gunny doth was, in 
commercial unders^ding, known as cotton bagging when the law 
was passed laving the du^, in 1832? If it was not, they will find 
fi[>r the plaintma ; if it was, they will find for ihe defendaint 

To this charge, in eyeiy respect, the defendant's counsel excepted. 

The jury, found a verdict for the plaintifis for $4543 17^ and six 
cents costs. 

The quesdpA brought im bv diis exception cannot now be con- 
sidered as an open one. In the case of the United States v. 200 
thests ol'tea, 9 Wheat. 438, the court decided that in imposing du- 
ties Congress must be understood as describing the article upon 
which the duty is imposed according to the commercial understand- 
ing of die terms used m the law, in our own markets. This doctrine 


*^— ^"^— ^""^ ^— ^ 

Bwartwont v. Gihon et al 

was ite-a&med in the case of the United. States t;. 112 caaka of 
sugar, 8 Peters, 277, and asain in 10 Peters, 151, in die case of 
Emott V. Swartwout. It follows that the duQr upon cotton baling 
must be considered as imposed upon diose articles only which weie 
known and imderstood as such in conmierce in the year 1832, when 
the law was passed imposing the duty. 

In the case before us, the Circuit Court followed the rule of con- 
struction aboye stated, and it has been followed also in every circuit 
where die quesdon has arisen. The judgment is therefore affirmed. 

Saxubl Swabtwout, FLADrriFF nr error, v. John Gihon xtal.- 

When an importer ineans to contest the payment of duties, it tM not neeessaiy 

fi>r him to gire a written notice thereof to the collector. 
The question of notice is a fact for the jury, and it makes no dlfferenoe, lor the 

purposes for which it is required, whether it is written or rerbaL 

The &cts in this case are sufficiently set forth in the following 

^ Mr. Chief Justice TANEY delivered the opinion of the eouit. 

This case comes before the court ui)on a writ of error directed to 
the Circuit Court for the southern district of New York. The action 
was brought by the defendants in error against the plaintiff to recover 
back certain sums of money paid to him ^s duties on brown linens, 
imported into New York in 1836, of which port he was at diat time 
the collector. Some of these duties were paid under protest in 
writing, and some without any written protest or notice, but evi- 
dence was offered for the purpose of "showing thaiihe defendants in 
error verbally iiotiiied the collector that the duties char|^d on aD of 
these goods would be contested. The goods in question were un- 
bleached linens, and had been charged with duty as coloured; and 
the jury found a verdict against the coD^^ctor for me amount claimed. 

At die trial, die court instructed the jury that a written notice of 
the objections to pay the duties was not necessarv, and that it was 
sufficient if a verbal notice was brought home to tne collector; but 
that the jury must be satisfied that such notice was brouriit home 
to him. To .this direction the plaintiff in error /excepted ; and it 
is upon this point only that the case comes before this^court 

The only object of the notice was to warn the collector that the 
party meant to liold him personally responsible for the money, 
whether he paid it over or not. It was a question for the jury to 
decide whether notice was or was not given; and it could miake no 
difference, for the purposes for which it Vas squired, whether it was 
Tjrritten or verbal. We think the charge of the court was clearly 
rijg^t, and die judgment is therefore affirmed. 


Limbs of Hbnkt Waixbb, AinoKSB of Tvt banxruf^ bstatb of 
Feancu a. Savaob, Plaiiitiff, v. Jamm and JoflBFH Bbst. 

Ib Kencaelgrf tbe eredilor obtains a lien upon the propertj of lus debtor hf the 

deUrery of 9ijifa, to the jheriiT; and this Uen U as absolote before the lerj 

as it is afterwaras. 
Therefore, a creditor is not depriyed of this lien by an act of bankmptej on the 

part of the debtor committed before the levy is made, but after the execncion 

IS in the hands of the sheriC- 

This case came up from the Circuit Court of ibe United States 
for the district of Kentuolnri on a. certificate of division in cpinioo 
between the judges fliereo/. 

The 'following is the entire record in the case: — 

''Hie foUomng statement of questions and^ints of aw^hich 
srose in this case, and the adjournment thereof into the Supreme 
Court of the United States for decision, vtaa ordered to be entered, 
to wit: 

'' Sayaffe had the title to the land; tive plaintiff claimed under the 
decree ofnis bankriptcj; the defendant, under a dieriflPs sale under 
an execution. 

''The act of banlouptcy of savage was committed on the 27th 
April, 1842; die petition of his creditors was filed aeainst him in 
tiie District Court on the 25th day of June, 1842, and he was de- 
dared a bankrupt on flie 26th of October, 1842; the plaintiff was 
appointed the asagnee,'and this is his title. 

''J^i execu^pn of fieri facias on a judgment against the estate oS 
Savage was delivered to me sheriff on the 9th of April, 1842, before 
iie Btt of bankruptcy, and was levied on the land on the day 

of before the petition; but after the actof bankruptcy the 

defendant purchased at thci sheriff's sale, had his deed, and ibis was 
his title. 

" The question was, has the plaintiff, by ^e decree of bankruptcy 
and its relation back to the act of bankrvrbtcy, the elder and better 
title } or has flie defendant, by the prior deiiverv of the execution 
into the higids of the sheriff, and his levy'of it before the petition 
was filed, die prior and superior title? 

'^On this question flie judges were divided and opposed in 
opinion; whereupon; on motion of the counsel of the puantiff, the 

Sestion is stated and ordered to be certified to the Supreme Court 
' dedsbn." 

Morehead and JB. JUbnroe, for the plaintiff. 
Bicbard FrenAj for die defendants. 

The argument on behalf of the plaintiff was diis : 
Two questions arise i 1st Did Best, the tenant in possession and 
ttie phintiff in the execution under which the sale of the land was 
made, acquire any lien, such as is recognised by the latter proviso 


Savage's Assignee «. Best. 

of the 2d section of die bankrupt law, before die execution was in 
Act levied ? 

2d. If any such was accpiiredy is it e&ctual agninst tbe rights of 
tbe assignee of the bankrupt, when the act of bammiptcj was com- 
mhted brfore the levy of the execution ; or could flie execution, in 
Tirtue of die lien eiven by the state law. which was in the hands of 
a tfberifi^ but not kvied before hi act of bankruptcy, be afterwards 
lened, and the properhr sold ? 

These questions render it necessary to look to, the chanu^.of the 
lien giveii by the statutes of Kentucky, in favour of execution cre- 
ditors, andnidien that lien commences. The statute of Kentud^ 
(1 Stat. Law, 636) provides "that no writ of fieri facias^ or other 
writ of execution, shall bind the estate ot the defendant or defend- 
ants but fiNMn the time such writ shall be delivered to the sheriff or 
other proper officer to be executed." What is the import of the 
term mna, as used in the statute? That it has some binding efiect 
is evident, but to what extent? Is it a lien within the meaning oC 
the proviso of die bankrupt law? It is insisted that it is not, but is' 
only so far binding as to prevent such disposition of the property by 
the defendant as will* defeat the execution so in the hands or the o^ 
ficeif ; and does not so far bind the property as to prevent other exe- 
cution creditors from levying their executions upon the debtor^ 
property. See Tabl> v. Hams, 4 Bibb, 22d; and Kelby v. Haggin, 
S J, J. MarshaD, 212. In the latter case the court use this language : 
^*The only object of attaching a lien to an execution ia to prevent 
the debtor, from defeating the creditor by alienating or embarrassing 
his estate. The reason of the Ken, in such a case, does not apply 
to competition between creditors, and cesionie ratione cesiot ter; 
moreover, it'is but sheer justice to give the prefinence to the creditor 
who by his superior industry and v^ance shall have procured tbe 
first levy on die debtor's estate. V .'Aiis interpretation of the statute 
shows what is die character ot ttiat binding spoken.of in the statute, 
and that it does not amount to jhe Uen referred to in the bankrapt 
law until the execution be in kct levied, when it may be admitted 
that it amounts to such lien. 

2d. The proceedings against Savase was at the instuice of a ere- 
ditpr. Tbe apt of bankruptcy com^Mained of was eommitled beSfore 
vaj levy cS ibe execution, thoush the filing of the petition and dwB 
decree were stibse^uent }o the tevy of the ciscfcution of Beat At 
cpmmon law a./!ert,^iaaf had relation to its teste, but by our statute 
only firom die day of its delivery to the officer. According to the 
adjudications of the Endish courts, on the btfidarupt laws of diat 
country anterior to the 96 George 3 and the ^[^Gecnxe 4, dieimi- 
form and well settled doctrine was that the assignee had a 'ri§^ to 
o^Miaul aD tbe transacSons of the bankrupt subwquent to the first 
act of bankruptcy, and recover all moneys or prop^ty whidi passed 
diroug^ his hands; but by the 18th section ot the 6 George 4, 

*<Thiit dl dctfagi M^ bMiiMtiow by and wiBi the bmtampt, kmj 

itfitn two motrtht bcff 

I bdbve tht pedtkNi 
lied a^oDit him or-by him, ihall mit be inralidiiled by thm* act, pro- 

or tninirriani had 

JANtfABT TERM, IMfc 118 

8aTafe*t Attig aee a Butt 

<*an>Jiidjldbtraniartkwii entered into niore than ^ 
befiire the date and iapoing the ccoimimkm against the bai^^ 
aD ciggntiona and attachmenta againat Ins limdsOT cfaattdi hmijUk 
agecnted orkviedniore flian two calendar mondisbefiwtheiaanimg 
of the foinmiaBonii/* are made TaKd^^^notwitiMlMiding any prior acl 
of banknifiey, provided the parties had no notice 
Onr buiknif% kar has dns pcoviao in the 2d fcc^ion (Istprorbo) : 

iUe made and ei^^red into ] 

fled against him him, 

▼ided d|at the other party io any snoh.dealin^ or tnmsartiansi 

no notice of ajuior act of banldrnptor, oir of ^ nteitkm of the bait 

nipt to take tiie benefit of this act'^ 

These provisoes hatife no bearing npqnAeLqneationi inrohed. No 
icfekence is here made to ai^ executiona or attarhmiwli, as in the 
Ensiirii statute, but diey are left to be governed by the last provko 
of Ae 2d section. 

llie bindii^ efleet of writsof >n/MMt in Ens^, b^ 
nkm law, was from the tested by the statnles of Kntadiy it is from 
the deiiyery to ^ riieriff: bnt in ^ diaraotfer of this bindinff effect 
diere is believed to be no odier distinction but in reipeet of the tune 
of its commencement It misTbe proper dien to Icamirhit was die 
comae of adiudication by die fenghsh conrts npdn dns question. In 
Cooper t^. Cbitty, 2 W.Black. 65, 1 Burr. 20, it is said if a dMriff 
take goods of a bankrupt in execution after die act of bankruptqr 
and bmre commianon issued, and si^ diem after the fommiaaon, 
trover w91 lie against him. 

Again,^ the sheriff seiied the goods of a defendant under ajlbri 
Jfbctof , and sold and ddivered &m to the judpnent creditor, in 
srfsfagtion of the debt, after a secret; wfA <tf baifrqiicy oomm^ad 
by die defendant, but before the ivuinE' of a nommiMann against 
hnn: held, that die seixui^ and'iele cfthe goods waa a wrMgfid 
conversion, for which the dieriff was liiUe in jm action of trover alt 
the ant or the asngnee subsequent choaeiL Bdme v. Hntton, 
3 M. ItSaott, 1, 9Bing^ 471, 1 C. &M. 962; reversing 8. C. 
Tyr. 17, 2 C. &J. Id, 12 T. & J. 101, het4 by aeven judgea IL B. 
mid C. P. (Gaselie, J.,difMii(ioa.) ; Pnoe v. Jlelyar, 1 pinrii. 507, 
1 M. fc P. Ml; S. P. Porter v. Staride, 1 Mt fc S. 260; mofcsLV. 
PhiDqia, S Cinqi. 129. 

Farther, in Lazarus v. Waidiman, 6 Moore, 313, vdiere a tradf^ 
committea an. act of bankruptcy on the 9th November, and the 
dieriff took hjs goods in execution on die 16th November^ and sold 
diem on the 21st December, and a commisaion issued on the 23d, 
and an assignment made on the 6th January following^ it was heU, 
*<diat the assignee mi^t maintain trover against the riimff," idthoug^ 
he had sol J before the assignment was made, as the bankrupt's pn^ 

Vol. m.— 16 k2 


Savage's Assignee «l Best . 

perty vested in him by such assignment from die act of bankntptcy 
oy relation. 

These authorities are deemed sufficient ta show that the binding 
eflfect of anexecutiqn i^m its date, m England, was not sueh sft to 

S've the execution creditor any lien or preference over other cre- 
tors, unless the execution was in &ct levied before the act of 
bankruptcy ; and if hot levied, the decree in bankruptcy, by relation, 
reached ^ck, and efiectuaHy passed all the ri^ts df the bankrupt 
to the assignee, as thc^ existed at the time of the'commission of the 
act of bamcruptcy. And there is believed to be nothing in otir 
bankrupt law which recjuires that it should receive a different inter- 
pretation from die English statutes in this particular. The action of 
some creditor was necessary to bring about the decree in bankruptcy; 
it is, therefore, the efibri of the creditor, not of die defendant in the 
execution, which brin^ about die decree. The investiture of the 
HjB^ts of the debtor m the assignee is the act of the law, and die 
ettect ojf die acdon ot one or more creditors, for his own benefit and 
that of other creditors; and the result of this conclusion is, Uiat there 
is a pro rata distribution of the bankrupt's property, rather thaffthe 
appronriation of die yifhole to a single creditor. 

Is me placing the execution in the hands of the sheiifT a dealing 
by and widi the bankrupt, to which the first proviso in die 2d section 
has reference? It is insisted that it is not The bankrupt has, in 
that matter, been passive entirely. There has been no act upon Ids 
part, which k to acquire sanctity by the lapse of sixty days, spoken 
of in tfaisiNToviso. But in this case sixt|r days had not elapsed; there- 
fore, this proviso is altogether inoperative. 

Although when an execution is levied, and a sale made, the title 
of the purchaser reaches bade, and is protecteil firom any effort of 
die debtor to pass-die tide of the property, yet it is not so when two 
executions are out against the same defendant, in fhe hands of dif- 
ferent o£^cc9rfiH-that which is -first levied will hold, though it be 
youngest in date; and a levy and sale under that which was first in 
the httids of the officer, but 1^ levied, will be ineflfectuid to pass 
any title to the purchaser. This is the law, as understood by the 
counsel, in contests between execution creditors in Kentucky; and 
it is insisted diat the case of a petitioning creditor in badcruptcy is 
analogous to that of an execution creditor, and that the filing of the 
petition by a creditor is tantamount to the levy of an execution: it 
IS a proceeding by which a lien is acouired by the assignee, for the 
ben^ of the general creditors, -ana will oust any such inchoate 
lien as-that relied on as arian^ from an execution not in fact levied. 

The assignee had his election to sue the sheriff or to sue the pur« 
diaser of the land ; and having dected to sue the purchaser of the 
land, who was the plaintiff in die execution levied thereon, and 
httring Abwn tide and ngjtit of possession, die judgment should be 
for die assignee, for die po^ession of the land. 

JANUARY TERM, 1846. 116 

SaTftge's Assignee v. Best 

Frenchy for defendants. 

The qiiofition on which (tie court 'below divided was, whether the 
title acquired by ]>urcha8e under an execution which came to the 
hands of the d^eriff before the act of bankruptcy, and was levied 
after the act of bankruptcy, but before filing of petition In bankrupt- 
CT, related back to the time the execution came to the hands of Uie 
merifi^ and overreached the title of the assignee in bankruptcy; or, 
was the tide of th6 assignee the better title? 

The defendants rely on jdie last proviso in the 2d section of the, 
bankrupt law, which protects ^^ any hens, morts^ages, or other securi- 
ties on property, real or nerscmal,. which may be vsdid by the laws 
of die states respectively. * 

Hiat an execution, delivered io the proper officer, constitutes a 
Hen on defendants' property, and that title acquired by purchase 
under such execution relates back to the time' of deliveiy, is a pro- 
petition most clearly settled by judicial decision iif Kentucky. In 
Million V. Riley, 1 Dana, 359, execution was delivered to sheriff, 
June 16th, and was levied August 5th. On the intermediate July 
22d, defendant sold and conveyed. Held, that execution acquired 
a Hen from June 16th, and that purchaser's title related back to that 
time. He recovered, therefore, in ejectment against the vendee of 
execution debtor. 

In Clagett v. Force, 1 Dana, 428, after, execution delivered, de- 
fendant removed a horse to Indiana, and sold him there. The piH^- 
chaser brought the horse to Kentucky, where he was levied on by 
the same execution, deHvered as-aforesaid. Held, that the lien Xvas 
not lost by the removsd to Indiana, and sale there; and, therefore, 
Aat the horse was subject to the execution. 

Orchard v, Williamson, 6 .J. J. Marshall, 561 ; after execution 
deUvered, defendant swapped a horse for another. Both were levied 
on: aAd held, that both were subject^ one by virtue of the lien, and 
the other as the property of defendant. 

Addison, &c., v. Crow, 5 Dana, 274; levying an execution has 
&e effect of rendering the lien more specific, ana of continuing the 
Hen and-authori^ of the sheriff; further than this, it had no ereater 
efficacy than placing the execution in the hands of the sheriff. Neither 
the deHvery nor the levy divests the defendant of title : he may sell 
and pass the title, still the execution is a lien or charge on the land, 
and when completed by sale, the title relates back to the deHvery, 
and overreaches all intermedial conveyances. 

Hood, &c., V. Winsatt, 1 B. Monroe : after execution deHvered, 
property was removed to another county. The execution was re- 
turned on the return day, and another one issued to the county to 
vriiich the property had been removed, and was placed in the hands 
of the sheriff of that county the same day. Held, that the Hen \\ras 
continued from the deHvery of the original execution. 

Having referred to a few of the Kentucky cases, which hold, with- 


SftTAge's AsAignee v. Be-^V. 

out tbe shadow of doubt, that an ezecutbn delivered acquires a liep, 
I diall notice some of the dedsions in which the above recited {hto- 
vise of the 2d section of the bankrupt law is broudit under review. 
The leading case is that of Ex jparte Foster, 5 Law Reports, 66. 
The question ju^cially decided in diis ca3e was, that by the laws 
of Massachusetts a party proceeding b^ attatchnient did not-acquire a 
lien on ttie attached propierty until judgment, and that a petitioner in 
bankruptcy could enjoin proceecQnes on &e attachment, until it was 
ascertamed whether me baDkn:qpt obtained his certifiQate. If he did, 
he could plead the certificate in bar of the attaphments, and thus de- 
fi«t ihe inchoate lien. 

The profession jjenerallv, however, understood the case di&renfly, 
and supposed die eflfect or it would be tocut off all judgment Sens, 
execution liens, even thou^ levied^ venddrs'Uens, S^., from all 
benefit under the proviso alK>ve refisrred to. TUm case, thus under- 
stood, was rdied on as authority before other judges, and first before 
Judge Conldinfl;, of New Yoik, in the case, in the matter of AUen 
and others, 6 Law Reports^ 363. 

In tins case judnnent creditors had attached qhoses m action. 
The court sustamea the lien acouired by the attachment, evidently 
hichnin^ to a broader definition of the Kens embraced by die proviso 
in question thsji was given in £x parte Fosfter. 

Tfa^ next case ia fowner and others v. Bracket, 6 Law Reports, 
392, before Judge Prentiss, of Vermont.. He discusses the subiect 
ably and at )aige, dedarinffhis opmion that every kmd of hen, unless 
firaudulent,.to wit, the vendor's lien, attachment &ns, judgment Hens, 
&c., are protected. P. 394, 396. Attachment binds a^ efiectusdljjr as 
judgment or execution issued. Judgment or execution issued bmds 
all me property of debtor^ JUh *Grosvemor v. Gold, 9 Mass. Rqp. 
209, is Inferred to, to diow that the Hen of judgment^ execution is- 
sued, and attachment, all stand on die same CTOund. 

In Hau^ton v. Eusdce, 6 Law Report^ 505, Judge Thompson, 
oi Vermont, decided that an attachment Hen was protected by die 
proviso in question. He expressed the opinion that judgment BenSy 
and such similar liens, were protected. 

That the case of Foster was greatly misapprehended is evident firom 
the subsequent decisions of Judge Story.' 

Thus, in the case of Paiker and Blanchard, plainti£Es, in matter of 
Mu^gridge, &c., 6 Law Reports, 351, after judgment. Judge Story 
maintained the Hen by attachment; because, aner judgment, thare 
could be no day in court to plead the discharge. He abo expressed 
die opinion that judgment Hens were protected by &e proviso in 

In the ease, The matter of Cook, 5 Law Reports, 443 Judge Story 
exprened surprise that the case of Foster hau been so much mtson- 
derstood, and in this latter casesustaiAs the Hen of the attaching ere* 
ditors, who had obtained jud^;pient, declaring that this Hen was equi* 


TBkot to die comiboii law jodgmeiit Ika^ adding, diat he nefver 
doitbted tliai tfiat.lieD w«8. rotacSed. r 

M ^ judffe^ dien, 't<|Nmosie qNoiona I fiaye lefiBrred, oonceda 
Oat judgDieiit lirai are protected; and Jad^ Prentw placet jadg> 
meot.Uens and executioiia inued on the same footing. 

I will endeaTouryfliraier,to diow thai tiie Ben df execution MMed 
k Mty eqoiyalent to the judgment Men. 

Land by tte common law, aa it original^ stood,, waa not, except 
under some peculiar circumstances^ subjedt to the debts of the own^* 

2 Bac. Abr/tit £aeciili(m, A, 686; 3 Black. 418. 

Hie judgment lien on Iknd arises 'from the construction of the 
statute of £award 1, chap. 18, commonly called the statute of West- 
minster. See.Ez {Ntrte Foster^ 6 Law Kepoita, 63, 67. 
' It was by this statute die eh^ was fljren^ by Ti^^ 
judgiaoent creditor has hie electicm to tuse a VEm yboat-^for tfiepSale 
of ^goofla and ch&ttels, or flie eligit-to extend flie goods and chattels 
and one^half die land. See 2 Bac. Abr. tiL ExecuHam^ A, 686; 

3 Black. 418. 

This statute does not expressly ^ve any lien, but only authorizes 
the creditor, at Us election, to sue out the. cJiffit directed to die 
sheriff, and the coomtand of die writ as prescribea is^ that the sheriff 
shdl levy the debt ot the goods and chattds, and one-half the land. 
See form of writ, 2 Bac. Abr. tit I^xeadiany C, 710. 
; It is byxonstmction of this statute, die writ relates back, to the 
judgment, and oreireaches all inteimediate eiicumbrances. 

In like manner, at commoniaw, iheiien/aciaiy which commanded 
the sheriff to levy die.dclit of the goods and chattels, related back to 
its teste, and bound from diat time.. 2 Bac. Abr. tiL Execution^ I, 
733 ; as judmients did from time of judgm^t, same tide, 731, 

By 29ith Charles 2, the"^ statute of frauds, (die same from which 
the Kentucky statute is copied,) executiompbnly bird from the time 
they are delivered. 2 Bac. Abf. tit ExeaUian^ L 733. 

Judgments docketed, and executions ddivered, are evidently, in 
Baj^n, at die paoes t^ited, (731, 733,) placed on the same footmg. 

Tliey seem to be placed on the same footing in tte case of Foster, 
6 LawReports, 63, 67. 

There are some otiier striking analo^es betireen judgments and 
executikms issued, which Itwill notice. 

An execution, as concealed, does not vest a title until executed, 
neidier does a judgment Ex parte Foster, 5 Law Reports, 64. 
Covenant of seism is not broken by outstandirtg judgment. Sedgwick 
V. HoDenback, 7 Johns. 380. 

As between execution plaintifis, he that by superior dilk;ence ac- 
ouires the first levy is preferred ; so between judgments oithe same 
oate, he Aat first dues ^tecution- and sells, acquires a preference. 
Adan^o. Dyer, 8 Johns. 360; Watterman, &c., v. Haskins, 11 Jo^ms, 


I - - 

8«T«ge'tf Assignee v. Best 

Ssde under Junior execution, if first levied, would be valid ; so is 
sale under junior Judgmetkt. Sanford v. Roosa, 12 Jo)ms. 162. 

To conclude, tben, die title of die assimee can only relate back to 
die act of bankruptcy. The title of the defendants, as we have seen 
by the cases of JVuUion t;. Riley, 1 Dana, 359, and Addison, &c., v, 
Cfrow^ 6 Dana, 274, relates back to the time the execution was de- 
livered to the sheriff. This period being anterior to the act of bank- 
ruptcy, the title of the defendants is older than that of the plaintiff 

2d. All the authorities concurring in tl^ opinion, mat juds^ 
ment liens are protected by the proviso in the 2d section, and the 
anabgies between the judgment lien and execution issued being ao 
striking, I would respectfmly maintain, tha^ the title of the defend- 
ants ia also protected by the proviso referred to. 

Mr. Chief Justice TANEY delivered the opinion of the court. 

This case comes before the court upon a certificate of division l)e* 
tween the judges of the Circuit Court of the United States for tixe 
district of Kentucky, upon the foDowing statement : — 

^VSavafi;e had the title to the land; the plaintiff claimed under tixe 
decree of his bankruptcy; the defendant, under a sheriff's sale under 
an execution. 

^^The act of bankruptcy of Sav^ was committed on the 27th 
April, 1842; the petition of his creditors was filed against him in 
tl^ district court on the 25th day of June, 1842, and he was de- 
clared a bankrupt on liie 26th October, 1842; the plaintiff was ap- 
pointed the assignee, and this is his title. 

"An execution oi Jieri facias on a judgment against the estate of 
Savage was delivered to the sheriff on the 9th April, 1842, before 
the act of bankruptcy, and was le'vied on the land on the day 

of ^before the petition; but cdler the act of bankruptcy 

the defendant purchased at tne sherds sale, had his deed, and this 
was his title. 

" The Question was, has the plaintiff, by the decree of bankruptcy 
and its relation back to the act of bankruptcy, the elder and better 
title; or has the defendant, by the prior dehvery of the execution 
into the hands of the sheriff, and his levy of it, before the petition 
was filed, the prior and superior tide ?" 

The statute of Kentucky, upon this subject, provides " that no writ 
cf^fierifadasy or other writ of execution, shall bind the estate of the 
defendant or defendants but from the time such writ shall be de- 
livered to the sheriff, pr other proper oflBcer, to be executed.** Ac- 
cording to the laws of that state a jud^ent is not a lieii upon land, 
and the real as well as-personal estate is not bound until the process 
of execution against die property of the defendant is deliverea to the 
officer. The question to be determined is, whether the delivery of 
ike ^fieri facias to the sheriff t^ be'cxecilted created a lien on the pro- 
perty of the defendant, for driS &nount for which the execution was 

JANUAR Y TERBi, 1846. 11& 

Savage'ii Astignee «. Bett. 

iflsaed? If it did, the title of the defendant is the superior and bet- 
ter title, and protected by the last proviso in the 2d secticfn of. the 
act to e^ablidi a uniform system of bankruptcy throug^ut the United 

In construing the statute above mentioned, the decisions of the 
courts of Kentucky have not been entirely uniform. In the case of. 
Tabb V. Harris, 4 Bibb, 29, decided in 1816, it was held, that the 
de&ver^ to the sheriff created no lien on the property of the defend- 
ant. In a subsequent case, however, in the same volume, Daniel t;. 
Cochrane's administrator, 4 Bibb, 532, decided in 1817, the court, 
in delivering their opinion, speak of the Hen of a Jieri Jacias^ from 
the time it was delivered to the sheriff to be executed, as if it were 
a known and settled principle of law in that state. But this was not 
the main point in that civse, which turned upon the Question, whether 
the execution continued to bmd the property of the debtor until the 
judgment was satisfied. The court neld that it did not, ^nd that the 
Hen ceased- after the return d^y of the execution, if it was not levied 
before. The question, as to me lien acquired by the delivery to the 
^cer, again arose in the case of Kilbjr v, Haggm, 3 J. J. Marshall, 
SOS, and in this case, which was decided in 1830, die doctrine in 
Ae case of Tabb v. Harris was fully sustained ; and it was directly 
and distinctly decided, that the delivery to the sheriff created no lien 
against any other creditor, and that an execution afterwards placed in 
the bands of the sheriff, if first levied upon the property, was entitled 
to a preference. 

But in the case of Million v. Rvle^, 1 Dana, 360, decided iiv 1833, 
the court held, tiiat die plaintiff obtained a Ken by die ddivery to the 
sheriff, and that the tide acquired by the purchaser, when the execu- 
tion was reffulariy levied and the property sold, related bade to the 
deliveiy to me officer; and they speak of this lien as secured to the 
creditor by the Kentucky statute. In 1837 this subject again came 
before the court, in the case of Addison and others v. Crow and 
odiers, 5 Dana, 274, and in this case the question appeara to have 
heen veiy fiilly considered, and the case of Million ».' Rylcy was 
refierred to and commented on, and the principle decided in it in 
rdation to the^li^i of an execution re-amrmed. In this case the 
court say *^die levy of dijieri facias upq^ the hnd of the debtor ua- 
doubtemy renders the lien more speciiSc, and being a necessary step 
in the execution of a writ, completes the authority of the officer to 
sell, and has the fiirther effect of 'siving continuance both to the au- 
diority and the lien, which would otherwise expire with die return 
of the writ And we do not perceive any necessity or reasonable 
ffiound for a^;cribing to it any other efficacy than this ;" and in page 
277 of the same case, the coinrt again say, '^ no reason appeai3 toi 
attributing^ to a levy any efficacjr except as one step towards die con- 
summation of the uen arising from the delivery of the execution to 
die officer." 


United States ,«. Oemr. 

This is tfie latest df anon m fhe courts of tfie state to yMdk we 
have been refened, oi of which we are aware, and, as we hare al- 
ready said, it appears to have been well considered. And wfaaterer 
doubts might before have been entertained, we must, imder die an-r 
tfioritfr of this case^jregard it as the setded law of the state, that the 
creditor obtains a hen upon the property of his debtor by the defireiy 
of ihi^ fieri fadoM to the sheriff; that it acquires no additional vdid^ 
or force by bein^ actually leried, but that flie lien is as d[>solute be- 
fore the levy a»it is afterwards, and continues while die procte re- 
mains in die hands of the sheriff to be executed. 

In this view oif die subject, it is unnecessary to examine or to re- 
mark upon die cases wl^ch have been decided in other states or in 
England, because the question depends altogether upon the law of 
KentucW. And as by the laws of that state a./m fadoi^ when 
detiTered to the dieriif^ is a Wep, tqpon the property of die debtor 
while it continues in the hands of the officer to be executed, die cre- 
ditor is not deprived of this lien by an* act of bankruptcy on the pait 
of the debtor committed before the levy is made^ but after the exe- 
cution is in the hands of die sheriff In die case before us. therefore, 
the court are of opinion that die defendant, by die prior ddivery of 
the execution and the subsequent levy and sale, has the priot and 
superior tide, v^ we shall ceitify acconiingly to the Circmt Court 

Thb Unitid Statbs, Plaintipf, v. Hubkub H. Gsabv Dipimdaiit. 

Tm Ui^mD States, CoMPLAiNAifT, v. Hbsxkiab H. Gsab, Dbpbhd- 


The set of Ctmgrees entitled ** An act to create additional land districts in te 

. states of mmois and Missoari, and in the territorv north of the state of m^ 
nots," approved Jane S6th, 1884, does not require the President of the United 
States to cause to be offered for sale the jpublic lands pontaining lead minti 
titnated in 4he land districts created by said act 

llie said act does not require the President to cause said lai^ eontaininf lead 
mines, to be solc^ because the 6th section of the act of the 8d March, 1807, 
entiUwi *<An act making proTisidh fo^ the disposal of the [>iiblio lands situated 
between Uie United States military tract and the Connecticnt reserre, and for 
other purposes," is stiU in iViU forced 

The lands containing lead mines in the Indiana territory, or in that part of it mads 
into new land districts bv the act of the S6Ui Jane, 1884, i^re not subject, vnder 
say of the pre-emption laws which hare been passed by Congress, to a pr^ 
emption by settlers upon the public lands. 

The 4Ui section of the act of 1884 does in no way repeal any pait.of the Wk 
lection of the act of the 3d Warch, 1807, by which the lands containing iMd 
mines were reserred fbr the ftitore disponl of ihe United States, by wiich 
{rants for lead-mine tracts, discorered to be such befopi Uiey may be boighl 
from the United States, are declared to be ficaadaleat Knd mU, and which aa 


Uaited 0lat«t •. 0«*r. 

the PrttMoii 10 lesM uj lead oriM wUoh Ind ben, or might bt^ 
to boT o ced in the Indiana te^rilonr» Ibr a tenn not ezoMdiag Art jaan. 
The land containing lead mine^* in tne ^tridtt made by the aet of l^Bi, are nol 
•vbjeeC to pre-ebiptioh and tale onder anj of the ezitting lawi of Congresa. 
DMng lead ore from the lead minee upon the pnblio landt of the United States 
IS aneh a waste aa eotitlet the United Btatee to a writ of i^anetion to ra- 
* lit 

Trntn two catai came up fiom tficf Cireok Cooit of ike United 
Slatai fMT tlie digtriet of IKaois, and inToIred die ririil of Gear, the 
drfrndatiti to > tgact of had upon whadt thete waa tlcad mine> T^m 
firatwag «a actiop df t r eap a a a yimrg el m m H m fr^fU on the common 
bw aide of ttie court; and me eecond a biB m diaacefT, .with a 
nnmr fiir an iquaction to atay waate, on the equity aide. The 
dediFition charg^ Gear widi ngTing^ brdoe and entered the nordi 
haV eeetion 83, townifa^ 39 ttorOt, linge 1 eaat, nd die goudi half 
of fiictiottal aection 8, townrfi^ 5t6 north, range 1 eaat, bodi being 

*: of die feoidi prmcipal mandtan, and then end ditfe dug up die 
1 lead oief dec., oc 

Tlie "di>frndanf filed aiz pleaa, all jeadng on die ground thgt he 
had aetded, reaided on, and occupied die land m (jueadon in die 
year 18S7 , and cultivated a part thereof, and had ever amce remained, 
coadnnedy and atill waa in th!e ppagMion diereof, and waa lawfully 
entitled to the pre-empdon righto said quarter aecdon; aaidpremiseg 
beii4[ subject to pre-emption rights, and not yet oflered tor sale by 
die Presicki^'s proclamation; by roson whereof he, the defoidant, 
durlead.oie or mineral, as he miriit lawfully do, &c., fto. 

. To thoe ideas the plamtiA itoBed, in aubstence, that die quartei^ 
aaetion of bind waa, and always had been, the property of die plain- 
tifi; diat it contained a valnable lead mine, the eziatmice of irfiich 
was wdl known-to die defimdant before and at the time he sfBttled 
iqKm the land, &c. 

To diese renhcations the defendEant demurred generally, and die 
plaintifi joined in die demurrer. 

The same piinrades were inTolTed in the chancery case, alleged, 
of coarse, in a difl£rant manner. 

When the canae canva up for amiment, in the court below, die 
nidges were dirided in opinion, aiMi die questions AxAj cerdfied to 
mis court Thqr are somewhat difierendy stated in the two caaea, 
and it ia proper to mendoo bodL 

In die dumceiy caae tfaqr are dius stated: 

1. Whedierdieact of dongress, entitled << An act to create addi- 
ttonal land districts in the states of Illinois, liG8Souri,jand the territoiy 
noidl of die state 6[ nfinois," approved June 96di, 1834, so fiur re- 
peds die 6th sectkm of die act of die 3d of Mard^ 1807, endded 
^An act making proTision fi»r the disposal of the public lands situated 
between die Umttkl States militaiy tract and die Connecdcut resenre. 
and fcr odier purposes,'' as to subject die lands mendoned in said 
aet of June 90di, 1834, contaming lead mines, to be entered and 

Vol. IIL— 16 L 


United States v. Gear. 

Pjorchafled by pre-emption under any of the pre-emption laws of 

2. Whether the said act (1834) requires die iPresident of Oe 
United States to cause lands containiiig lead mines to be sold, or only 
authorizes him to do so in his diacretion? 

3. Whedier lands containing lead mines are subject to be hdd or 
purchased under any of the acts of Congress granting the rights of 
pre-emption to setders upon die public lands ? 

4. Whether the dig^ng lead ore from the lead mines upon tte 

Giblic lands of the United States is such a waste as entitles the 
nited States to die allowance of a writ of injunction* to restrain? 
In the common law case they are thus stated : 

1. I)oes the act of Congress, entitled ^' An act to create additional 
lanH districts in the states of Illinois and Missouri, and in the territoiy 
north of the state of Illinois," approved June 26di, li334, require the 
President of the United States to cause to be offered for sale the pi:b- 
lic lands situate in the land district created by said set, containing 
lead mines? 

2. Does die said act require the President to cause said lands, 
containing lead mines, to be sold, notwithstanding the 5th section 
of the act of the 3d of March, 1807, entitled ^^ An act making proTi- 
aons for the disposal^of the public lands situated between the united 
States military tract and the Connecticut reserve, and for other pur- 

3. Are the said lands, containing, lead amines, subject to pre- 
emption under any of the pre-emption laws which have been passed 
by Congress? 

4. Does the 4di section of the said act of 1834 so fju* Irepeal die 
5th section of the act of 1807, as to subject the public lands contain- 
ing lead mines to be sold by the United States in the same manner 
as other public lands not containing lead mines? 

5. Are die said lands, containing lead mines, subject to pre- 
emption or sale under any of the existing laws of Congress? 

The acts of Confess referred to are ue following: — 
On die 3d of March, 1807, an act was passed, (1 Land Laws, 
162,) bv the 5th section of which it was enacted, ^^That the 
several lead mines in the Indiana tertitory, together with as many 
sections contis^uous to each as shall be deemed necessary by the 
President of the United States, shall be reserved for the fiiture dis- 
posal of the United States; and any grant which may hereafter be 
made for a tract of land containintg a lead mine, which had been 
discovered previous to the purchase of such tract from the United 
States, shall be considered fraudulent and null. And the President 
of the United States ^aH be, and he is hereby, authorized to lease 
any lead mine which has been, or may hereafter be, discovered in 
the Indiana territoiy, for a term not exceeding five years." 

_^ JANUARY TERM, 1846, IM 

United States «. Gear. 

At that time die land now included within die state of Illinois was 
part of the Indiana territory. 

In 1827, Gear, the defendant, entered upon the north half of sec- 
tion 23, town^p 29 north, of range I'east, erected a house upon it^ 
cultivated and occupied it. 

On the 29th of May, 1830, Congress passed <^An act to grant 
pre-emption rights to settlers on the public lands," the first section of 
which was as loUows : 

'^ That eveiy settler or, occupant of the public land prior to tfie 
passafi;e of this act, who is now in possession, and cultiyated any 
p^ mereof in the year 1829, shall be, and he is hereby, authorized 
to. enter with the register of the land^office for the dismct in which 
such lands may be, by legal subdivisions, any number of acres, not 
more than one. hundred and six^, of a quarter-section, to include 
his improvement, upon paying to the United States the then minimum 

f)rice of said land : Proyided, however, that no entry or sale of any 
and shall be made, under the provisions of this act, whidi shall 
have been reserved for the use of the United Stsiies, or either of the 
several states in which any of die public lands may be situated." 

The 4di section declared, that die sale of the pubUe lands should 
not be delayed, nor should the act be available for those who failed 
td make proof and payment, and concluded as follows: 

^^Nor shall the ndits of pre-emption contemplated by this act ex- 
tend to an^ land which is reserved trom sale by act of Con^ress^. or 
by order of the President, or which may have neen s^propnated for 
anypurpose whatsoever." 

The act was to remain in force for one year after its pitssage. 

On the 5th of April, 1832, Congress passed an ^^ act sunplemen* 
tary to the several laws for the jBale of the pubhc lands," which per- 
mitted the public lands to be purchased either in entire s^ons, half- 
sections, quarter-sections, half quarter-sections, or quarter quarter- 
sections, and contained three provisions, the third of i^ch was as 
follows : 

" Provided further, that all actual settlers, being house-keepers, 
upon the public land, shall have the right of pre-emption to enter, 
within six months after the pas^tge of this act, not exceeding the 
quantity of one half quarter-section, under die provisions of this act, 
to include his or their improvements, under such regulations as have 
been, or may be, prescribed by the secretary of die Treasury," &c. 

On the 14th of July, 1832, Congress passed '^An act supple- 
mental to an act grahtu^ the right of pre-emption to setders on the 
|)ublic lands, approved on the 29di of May, 1830,*^ which is too 
ong to be Quoted. The puiport of it was to extend to occupants 
ana setders me privilege ffranted by the prior act until one year after- 
the surveys had been made, or the land had bean attached to a par- 
ticular land district 

.On the 2d of March, 1833, an act was passed reviving that of 


United 8tal«t «. Gear. 

Aprfl 6di^ i832y extending ibe jviTikges mnted bjr ttnt act to die 
3ame penod as dM>8e just mentioiied, ana placing die benefidariea 
of the two acts of die oth of April and 14di of Jwj upon the same, 

In 1834, two acts were passed, one on the 19th and one im die 
26di of June. That of die 19th wa9 to leviTe the act to mnt pre- 
emption ri|^ti to settkis on die pufafic lands, approved mj 29tfa, 

The Ist secdon declared, diat erevy setdar or occupant of the 
jrablic lands prior to die panage of the act, who was then in poase^ 
flion, and culdyated any part thereof in die year 18&, should be 
endded to all the benefits and priTikges proyidled by die act of S9di ^ 
May, 1830; which act was revited and continued in force for two 

the act^f die 26di June was entkled << An a0t to create addidond 
land districts in die states of Illinois andHissouri, Od in the temtoiy 
north Off die state of Illinois.'' 

The 4di section enacted, *^ dial die Ptesident diaU be audioriized, 
.as soon as. the survqr shall have been completed, to cause to be 
offered for sale, in the nanner prescBb^d by bwj all the lands lying 
in nid land districts, at dieland-oifices in die respective districts in 
which die haid so ofiered is embraced, reserviiu| mity secti<m 16, 
in each townsh^, the tract reserved for die village Galena, such other 
tracts as have been granted to indmd'tals and the stateof niintns, and 
such reservations as the President shaQ deem necessary to retain for 
military posts, any law of Congress heretofore ezistii^ to die con- 
trary not!iritl|stanaing." 

On die 82d of June, 1838, an act was passed, die tide of whidi 
was ^^ An act to grant pre-emptbn rights to setders on the public 
lands." It enacted that every actual settler of the public lands, 
being the head of « fomily^ or over twenty-onr years of age, who 
was in possession .and a ^quse-keeper, by personal residence diereon 
at die time of the passase of the act and for four mcmths nett i»e- 
ceding, diould be entidea to all the benefits and privileges of the act 
of May 29th, 1830; which-act was therebv revived and continued 
in force for two yeeia tt contained a number cf provisions, one of 
vdiich was, that it should not be so construed as to sive a rig^ of 
pre-emption to anv land apanally occupied or reserved for town-lots 
or other purposes by authority of die united States. 

By the act of the 1st June, 1840, die above act was continued in 
force until ^ 22d of June, 1842, subject to the exceptions therek 

On die 4di of September, 1841, an act was passed entided ^ An 
act to 'iqspropriate the proceeds of die sales of the public lands, and 
to ffrant me-emption ng^ts.'^ 

The 10th section granted pre-emption ri^ts to actual setders, widi 
several limitations and exceptioiis, two of which v?ere as follovrs, vis. : 


^ ' 

Uoited States «.. Gear. 

«No lands included m anj reservation bjr any treat^^^law, or pro- 
clamation of the Resident of the United States, or leserr^ fo san^ 
or for other purposes,^' and *'no lands on which are sitaated any 
loiown salines or mines, dott be liable to entiy nnder and by Tiitiie 
of the proTisions of this act" 

/felson^ attomey-generaly for the United States. 
Hardiny for the defendant 

JTelion. The early ads of CongresB upon the sabjectare allslatad 
in Blr. Gilpin's argument, 14 Peters, 629. The act of 1807 resenrcs 
an lead mmes. n that $^ is still in force the CBtfe is deariy widnn 
it, because the reriieation^nTeis ^ existence of a lead mine on this 
tract of land, and it is not controverted. If the oa^e is withdrawn 
from the operation of thal.act,.it must be through the eflect of some 
one of the pre-emption laws. Let iis;inqiiire. 

By the act <^ 1830^ 1 UndXaws, 473, 474, chap. 401, there is 
no nght of pre-emption in lands reserved from nie. 

Ibt of 1832 cannot apply, because there is nodiinff in the record 
to show that Aedefimdantmadean an)licirtion forflii8land,a]idtfraa 
broUg^ himself withmtiie provisions of the act 

That of 1834 merely revived the act of 1830. Of course die same 
restiiction was contuiued; and by.that <tf 1838 it was continued for 
two years longer. 

By the act of 1841, Session Acts, p. 26, chap. 16, section 10, no 
landTis to be entored on which lead mines are. 

Iirno act is there a pre-emption right v^arying from that given by 
Ast of 1830, except in the kw of 1832, which says it shall be subject 
to such conditions as &e secretai^ of the Tre«suTy should impose. 
But, m making tiiese conditions, it was his duty to conform to the 
settle policy ^ die country. 

Tteie acts may thei^ be laid aside, as having no bearing on die 
case. The one under which the controversy arises is that passed in 
1834. At diis session, two acts weie passed,, viz. : 1834, chap. 467, 
passed on 19di June ; 1834, chap. 6!^, passed on 26th June. 

The 4^ section of .the latter act is the dause to which the atten- 
tion of die court should be directed. It authorizes the President 
to offer for sale the lands dierein mentioned, with certain exceptions ; 
and it b contended, on the p^ of the defendant, that lead mines are 
not named in die exceptions, and that, consequent^, the rig^t of 
pre-emption accrued. 

The question is, does this act repeal dxat of 1807, and audiorize 
die President to seU without regard to the restiictions imposed upon 
lam bydie act of 1807? I tiiink jiot; because, 

1. The act of 1834 was not designed to bear unon that of 1807. 
It had a different object in view, professing to estaoUdi land-offiofs. 
There were tvFO laws passed at that session, one seven days after die 
odier. The* cme first passed provided for pre-emptions, and reserved. 



United States «. Gear. 

lead mines. Is it probable tM these proTiflioiiB would be repealed 
by a law paa^d a few days afierwards, and purporting to regulate 
an entirely different tnatter? 

2. In every subsequent act, of 1838, 1840, 1841^ there is the 
same reservation as in 1830, which is a strong lesislative exposition 
of the meaning of Congress. In the distribution mw, it is rq>eated; 
and tfie practice of the executive department has dways been to re- 
fuse tomnt such lands. 

3. There is another legislative interpretation. In 1842 (chap. 190) 
an act was passed, including Wisconsin in die act of 1834. Those 
who had entered lead mines were indemnified, and allowed to enter 
odier lands, provided they did not violate die act of 1830. 

4. By the section of 1834 under consideration, the President 
mig^t ofler the lands for sale, but it was ndt incumb^t on him to do 
80. He had a discretionary power, which carried with it the rig^ 
to refuse to sell them at the minimuin price ofone dollar and twenty- 
five Cents per acre. See opinion of Attomey-Goieral Butler, 2 Land 
Laws, 127, 128. 

In. 14 Peters, 526, die court has decided this (mestion. In that 
case the contract for leasing was made after 1834. It is true, that the 
act was not noticed in the argument, but this shows the opinion to 
have been then, that the act had nothing to do with the subject It 
was aigued by Mr. Benton upon a dififerent ^ound. 

But suppose diat the President was authorized to sell these lands. 
How does the ri^ of pre-emption follow? This is a matter regu* 
lated by Congress only. Does the act of 1834 give a rig^t of entry, 
before the lauds are ottered at public sale? The act of 1830 mig^ 
have thrown open all lands, then in the market, to pre-emption rights; 
but it does not follow that that of 1834 did so, too. 

As to die propriety of granting an injunction in the equity case, on 
the ground that the bill alleges, that the injury will be irreparable, 
see 2 L^d Laws, 17; 3 Wheat. 131; 2 Story's % 207, 208; 
Dewey on Injunctions, 137, 183,. 184, 112. 

Hardinj for defendant 

The act of 1807 reserved lead mines firom sale, but left ihem sub- 
ject to the fiiture action of Congress. They were liot a{>propriated to 
any particular purpose: no, plan was adopted for their subsequent 
eovemment. All diat was done by that act was to say, that at some 
time thereafter Congress would consider what course should be taken 
with recard to them. They were, tlierefore, just as much open to 
the legislation of Coneress as any other portion of ^ public lands. 
If an appropri^on of mem had beai made, to take immediate efiect, 
the case would have been difi*erent ; for there is a distinction between 
reservation and appropriiltion. Grants made by executive officers 
were declared void ; but tUs was not intended to guide future con- 
gressional actiofi. By die act of 1830, pre-emption rights are given 

JANUARY TERM, 1846. 127 

United States V. Gear. 

in the broadest sense, except where lands are reserved for the United 
States. But they were often reserved for canals, hght-houses, &c. 
As long as die^t of 1807 was in force, we admit, that the act of 
1830 dud not give a right of preemption to the land in question, be« 
cause it was reserved from sale. But the act of April 6th, 1832, 
permits Quarter quarter-sections to be entered, and extends the privi- 
lege to all house-keepers, who had settled on the public lands, m the 
broadest possible terms. The defendant's plea shows him to have 
been entitled to claim it. There was no reservation in the act. It 
has been said, by the attorney-general, that no settlement could be 
made on lands which had not been offered for sale, and that the 
secretary of the Treasury must prescribe regulations. But the veiy 
term implies a recofi;nition of a settlement thus made. What is it? 
Pre-emption : a right to purchase before the day of public sale. Be- 
fore the passage of such a law, a settler was an intruder; but after- 
wards, he had an estate upon condition. And if he complied with 
the act, he fulfilled the condition, and the estate became absolute. 
It has been called a gift. But if so, it was a rift under a legislatiye 
srant, which, in effect, vests the title, of which a subsequent patent 
IS only the evidence. . 2 Kent, 255 ; 4 Peters, 408, 422; 2 Howard, 

Beinjs; so, it was not in the power of the President or any execu- 
tive officer to take it away. 

If we look to results, diey are all in our favour. The object of 
Congress, in making the original reservation, was to prevent mono- 
poly, but not the general s^ement of the country. The leasing 
system has not paid expenses, and it injures the land. The secretary 
of War has, for many years, recommended that the lead mines shonld 
be sold; and we 8«v, that Congress has ordered it, bittihat the Pre« 
sident has improperly withheld them from sale. 

By the act of 26th June, 1834, the President was authorized to 
sell the public lands with certain reservations, and these are not with- 
in the reservations. But the attorney-general says, that the President 
was only authorized to sell ; that it was a matter within his discretion* 
Be it so. This removes them from the list of reservations ; and being 
no longer reserved, the pre-emption law of the 19di June comes in 
and operates upon them. What construction must be given to the 
word " authorized i^^ We say, it makes it the duty of the Presi- 
dent to sell. 

It is not only used so in the act of 26th June, 1834, but in all acts 
in which Congfess directs or authorizes land to be sold by order of 
the President. As in these acts: February 17th, 1818, sect 3, Land 
laws, 294; March 3d, 1823, sect. 10, Land Laws, 364; July 14th, 
1832, sect. 2, Land Laws, 511 ; July 7th, 1838, sect. 1, Land Laws, 
578; March 3d, 1815, sect. 5, Land Laws, 260; May 6di, I8i2, 
sect. 1, Land Laws, 214. 

Congress never does order the President in imperative terms. The 


United States «. Gear. 

lanmwe is courteous; but it is a ministttial ^enct to proclaim the 
laods for sale. Grignon v. Astor^ 2 Howard, 344. 

Tiqr power can he otfae* officers tfian the President; 
and ii^the foUowii^; cases other subordinatetofficers are authorised, : 
oliot directed, to make sales, &c. : secretery of War, March 3d, 1803, 
sect 3, Land I^ws, 99; secretaiy of Treasury^ March 3d, 1826, 
sect 1, Land Laws, 403; resisters and receivers, April 27th, 1816,. 
sect. 1» Land Laws, 274 ; April 3001, 18H), sect. 1, Land Laws, 
176; << proper officer,'* May 13th, 1800, sect 1, Land Laws, 78; 
^commissioners," Ju^ 14di, 1832, sect 2, Land Laws, 610. See 
also, acts 23d August, 1842, sect 2, Acts, 124; 4th August, 1842, 
sect 1, A<^, 83; lOdi May, 1842, sect 1,-Acts, 14. 

These lead-mine lands bc^ ^udiorized to be sold, without any 
leservation, and no power ezistmg in the Pre^dent to reserve them 
from' sde,; more than any jother public lands, so much of the lawof 
1807, as <^ resenred diem for Oic future diq>08i4 of the United States," 
was necessarily repealed bjr the act of 1834. The reservation being 
taken ofi^ they' become subject to rights of occupancy, as other lands, 
and setders acquiring ririit8to.pre-emption,by virtue of pre-emption 
hws^ cannot be divested of these ri^itsbythe refusal of die Preadent 
to proclaim them fortak, 

if the pre-en^tion laws, pasned prior to die act of 1834, did' not 

five the defendant a rijriit or pre-emption, the pre-emption law of 
838 did. This act m^es no mention of reser?ikig lead mines. It 
is provided in this. act, that it diall not extend ^^ to any land specially 
oosapied or reserved for town lots, or other purposes, by autiioD(y 
of dis United States.^ 

These lead-mine lands w6r6 not occupied or reserved ferany pur- 
poae by ^ United Sts^es. They were, in 1807, reserved from sde 
for future disposal; but nowhere are diey m>ropriated or reserved 
for the use of die government, to d^. mineral, or other q>ecial.t»e. 
The object (^ the original reservation was to delay the sale until 
Congress shoulddetermine what dispositicm diould be made of tfaem^ 
J3y & law of 1834, and the various pre-emption kiws, Cpngress has 
antiborized dieir sale and disposal; and mj are not, consetfiieiktlT, 
widun the meaning <^ any reservation or appropriation mentioned m 
^ subsequent pre-emption laws. 

On aD pubhc lands, authorized to be sold, citizens are pemitied 
and encouraged, by this pre-emption laws, to m on dion an4 ihh 
prove them. To do jk>, th^musC erect houses or^ak up die natural 
meadow, and fell trees. These aie all acts of waste, according to 
die common law. 

The old acts of Congress against waste, and to punidi for.treflpassea 
in cutting timber, &c., are inconsistent with these pre-emption laws, 
and the rights and privileges*granted to occupants under them ; coin 
sequently, th^ are repealed^^by tl|e pre-en^ption laws subsequent^ 
passed. Neimer action can therefore w sustained. 


United States «. Gear. 

JVUfon, in r^ily and conclofton. 

The qaesdon of a general reaenration does not arise in llie caae* 
The lepucation seta out, that defendant knew that mines were on die 
land; and by his demurrer he admits diat he knew it The act oi 
1807 reserves mines, and declares, that all grants of diem shall be 
considered fraudulent and null. Under this act alone, the defiaidant 
would hare been a trespasser, even if he had obtained a gno^ of 
die land. 

It has been said, that the district attorney had no rifjbi to faring 
suit without die authority of an act of Congress. But the Consdtn- 
tion -makes it die duty of the President to see that all laws are exe- 
cuted, and the power to sue results from the nature of thmgs. 

The act of lo30 is the 'first and general pre-emption law ; and no 
law, now m force, is inconsistent with this. It says that its proyi- 
sbns do not apply to lands which were resenred from sale ; but die 
act of 1807 haci already reserved these lands. 

He act of April, l&i32, has no application. It was not designed 
as .a pre-emption law, but to allow smaller subdivisions than had 
tfeen before tolerated. The claim here is not for one of these sob- 
ifi^ions, but an entire quarter-section. But the privilege granted 
by the act of 1832 is confined to half quarter-sections, and extends 
to no larger amount 

The act of July, 1832, merely eare an extension of timet 

The act of 18m appears to be me chief reliance of die defiendant 
We admit, that if the court think that this act flAruits the lands, Ae 
plaintiff is not entitled to maintain this suit out it does not pro- 
fess to be a preemption act It is to create additional land-dis- 
tricts. It airtfaorises the President tp do certain tfainn in the man* 
ner prescribed by law. But a pre-emptioner can oi^ claim under 
an act of Congress, and diis act does not eiye him boweri to enter, 
wbidi b expressly prohibited by the act of 1830. It does not fi:>l- 
low that any pre-emptioner may take up lands as soon as their sale 
is authorized. No statute giyes him such a right The cmestioa' 
is, ^at was the intention of Congress in passing this law? The 
answer must be sought in die act itself, and in the circumstance 
AAt, seyen ^ys before, a regular pre-emption law had been passed. 

llie act of 1838 contains many res^ryations, and it is argued that 
mines are not included within them. But the general phnse, ^*for 
other purposes," will include mines; and besides, it professed tore* 
yiye the act of 1830, with all its reseryations. 

Bfr. Justice Waykx deliyered the opinion of the court 
From the fiyrefl;oiiig statement of all the acts of Congr^n haying 
ai^ bearing on the subject before us, we think it obyious it was not 
intended to subject lead-mine lands in the districts made by the act 
of the 26th June, 1834, to sale as other public lands are sold, or to 
make diem liable to a pre-emption by setders. 
Vol. m.— 17 


United States v. Gear. 

The argument in support of a contrary conclusion is, that the reser- 
vations in the fourth section of that act, with the authority given to the 
President to sell all the lands in the districts, any law of Confess 
heretofore existing to the contrary, notwithstanding, exclude lead- 
mine tracts in those districts from the operation of the act of the 3d 
of March, 1807. At most, the lan^age of the fourth section of the 
act of 1834 imparts only an authonty to the President to sell, given 
in the same way as it has been conferred upon him in other acts 
providing for the sale of the public lands. Then the question oc- 
curs, whether the section of an act, in general tenns to sell, (certain 
reservations excepted,) without any reference to a previous act, 
which declares that lead mines in the Indiana Territory shall be re- 
served for the future disposal of the United States, is so mr a repeal of 
the latter, that lead-mine lajfids in a part of that territory are subject- 
ed to sale as other public lands are. Why should Congress, witnout 
certain words showing an intention to depart from the policy which 
had governed its legislation in respect to lead-mine lanas in the 
whole of the Indiana Territory, from 1807 to 1834, be supposed to 
have meant to exempt a portion of the lead-mine lands in that territoiy 
from that policy, in ari act, the whole purview of which was to create 
additional land-sale districts? Besides, the reservations in the fourth 
section of the act of 1834, except the tract for the villag;e of Galena, 
are no more than the reaffirmance of some of the provisions of other 
statutes respecting reservations made or to be made out of the public 
lands in other districts ; and cannot, therefore, be considered as an 
enumeration in connection with the general power to sell all lands, 
any law of Congress heretofore existing to the contrary notwith- 
standing, repeahng another act, providing for a reservation of a par- 
ticular class of lands within the same land-district to which the act 
of 1834 applies. The reservations in the fourth section of the act 
of 1834 are limitations upon the authority to sell^ and not an en- 
largement of the general power of the Presiaent to sell lands, which, 
by law, he neverhad a power to sell ; which have always been pro- 
hibited by law from being sold, and which never have been sold, 
except under the authority of a special statute, such as that of the 
3d March, 1829, 1 Land Laws, 457, which authorized the Pre- 
sident to cause the reserved lead mines in the state of Missouri 
to be sold. In looking at that act, no one can fail to observe the 
care taken by the government to preserve its property m the lead- 
mine lands, or to come to the conclusion that the reservations of 
them can only be released by special legislation upon the subject- 
matter of sucn reservations. Authority, then, to sell all lands in the 
districts made by the act of 1834, though coupled with the con- 
cluding words of the fourth section, can only mean all lands not pro- 
hibitea by law from being sold, or which have been reserved from 
sale, by force of law. The propriety of this interpretation of that 
section is more manifest, when it is considered, if a contrary inter- 

JANUARY TERM, 1845. 181 

United States «. Gear. 

pretation is given, that the lead«mme lands in one district of the 
same territory would be liable to sale and pre-emption^ and those in 
another part of it would not be. Can any one possible reason be 
suggested to sustain even the slightest intention upon the part of 
Congress, when it was passing the act of 1834, to make such differ- 
ences in respect to lands within the same locality, as have just 
been mentioned? Could Congress have meant to say, under a 
power to sell, that it would be lawful to sell in the new land dis- 
trict what it was unlawful to sell in other land districts of the same 
territory of which the new land district was also a part ? And that 
settlers upon the public lands within the new district should have^^ 
right of pre-emption in lead-mine tracts, which settlers upon oth^r 
lands within the same territoir, but not within the new land district, 
could not have ? The mere met of a new land district havmg been 
made out of a part of the territory in which the lead-mine lands had 
been reserved, with the authority to the President to sell all lands 
in the new district, can have no effect to lessen the force of the ori- 
ginad reservation. In truth, the acts of 1834 and 1807 do not pre- 
sent a case of conflict in the se];ise in which statutes do, when, from 
some expression in a later act, it may seem that somediing was in- 
tended to be excepted from the force of the former, or to operate as 
a partial repeal of it. The rule isi, that a perpetual statute, (which 
all statutes are unless limited to a particular time,) until repeale^ by 
an act professm^ to repeal it, or by a clause or section of another 
act directly bearmg in terms upon the particular matter of the first 
act, notwithstanding an implication to the contrary may be raised by 
a general law which embraces the subject-matter, is considered still 
to be th*e law in force as to the particulars of the subject-matter le- 
gislated upon. Thus in this case, all lands ^^ithin the district mean' 
lands in which there are, and in which therie are not, minerals or 
lead mines; but a power to sell all lands, given in a law subsequent 
to another law expressly reserving lead- mine lands from sale, cannot 
be said to be a power to sell the reserved lands when they are not 
named, or to repeal the reservation. In this case there are two acts 
before us, in no way connected, except in both being parts of the 
public land system. Both can be acted upon without any interfer- 
ence of the provisions of the last ^th those of the first — each per- ^ 
forming its oistinct* functions within the sphere as Congress designed 
they should do. But further, that the act of 1834 was not intended 
as a repeal of the act of 1807, in regard to lead mines, so as to grant 
a ri^t of pre-emption in them to settlers, is manifest from the fact 
that an act was passed only seven days before it, reviving an act to 
grant pre-emption rights to settlers on the public lands, which ex- 
cludes settlers from the right ofpre-emption in any land reserved 
from sale. by act of Congress. Thus reasserting, then, what had 
been uniformly a part of every pre-emption law before, and what 
has been a limitation upon the right of pre-emption in every act for 


United Slates «. Gear. 

that purpoee since. We do not think it necessaiy to pursue the sub- 
ject niruer, except to say that the view we have here taken of flie 
act of 1834y in respect to lands containine lead mines, and the ridit 
of pre-emption in them, is coincident wim the opinion given by Sub 
court inthe case of Wilcox v. Jackson, 13 Peters, 513. That case 
was well and most carefully considered, and expressed in the deli- 
berate language of this court. We.determined, then, the point be- 
inff dir^dy in the cause, diat the act of 1834 had relation to a aJe 
Elands in the manner prescribed by law,^ at public auction, and 
that a ridit of pre-emption was governed by other laws. The court 
said, ^^ ue very act of 19th June, 1834, under which this claim is 
made, was passed but one week before the one of which we are now 
speaking, ([meaning the act of 26th June, 1834,) thus showing that 
me provisions of the. one were not intended to have any effect upon 
the subject-matter on which the other operated." We see no 
reason to change what was then the view of the court. On the con- 
traiy, there is much in this case to confirm it. Let it be certified, 
dierefore, to the judges of the Circuit Court of the United States fi>r 
the district of XUttiois, that this court is of die opinion that the act' of 
Congress, entitled '^ An act to create additional land-districts in the 
states of Illinois and Missouri, and in the territoiy north of the state 
of Illinois," approved June 26^1834, does not require ike Pnarident 
of tiie United States to cause to be ofiered for sale the public lands 
containing lead mines situated in tiie land districts created by'said act 
52d. That the said act does not requii;e the President to cause said 
lands, contamine lead mines, to be sold, because the 6th section of 
ttie act of the 3a March, ISOT, entitled ^^ An a<^ making provision 
for the disposal of the public lands, situated between the United 
States mimarv ti-act and the Connecticut reserve, and for odier pur- 
poses," is still in full force. 

To the third ({uestion we reply, that the lands containing lead 
mi^es in the Indiana Territory, or in that part of it made in& new 
land-districts by the act of the 526th June, 1834, are not subject, un- 
der any of the pre-emption- laws whi<ih have been passed by Con- 
gress, to a pre-emption by settlers upon the public lands. 

To the 4th question, we reply that the 4th section of the act of 
1834^ does in no way repeal any part of the 5th section of the act of 
Ate 3d of March, 1807, by which die lands containing lead mines ' 
were reserved for the future disposU of the United States, by which 

rnts for lead-mine tracts, discovered to be such befiire they may 
bou^t flx)m the United States, are declared to be fraudulent and 
null, and which authorized the President to* lease any lead mine 
which had been, or might be, discovered in the Indiana Territoiy^ 
for a term not exceeding five v^ears. 

To the 5th question we reply, that the land containing lead mines 
in the districts made by the act of 1834, are not subject to pre-emp- 
tion and sale under any of the existing laws of Congress. 


OordoB «. Appeal Tax Ccart. 

Tbe foregcHiij^ aatwen tf^ly ilao to the pomts upon whjph. Hm 
jvdfles were divided in opinion upon tibe bill in chtncery, between 
the United States and Ai^ defendant Gear, except the fouith qnealioii ' 
certified in that case ; uid to that we reply; mat digj;inff lead ore 
fronoi the lead mines upon tbe public lands in the Unitea States, is 
sodi m i#Bste as entitles tibe United JSkates to a writ of injunetioi^to 
restrain it 

[For the dissenting opinion of Bfr. Justice McLcak, see App. p.789.] 

Samuil Gordon, PijuifTif r in bkroii, v. Thx Ap#ral Tax Coorr. 
Jambs Chbston, PLAnrriFr in xbbob, v. Tbb A#fbal Tax Coubt. 

The charter 6t a hank it aftanchite, whieh la Bot tazabK sa soeh, if a prist 

haa heen paid for it* which the legialature acceplad. - 
But the corporate property of the bank is separable from tlie fraBchiacb and mtif 

be tkxed, onless there U a special agreement to the contraiy. 
The legislatare of Maryland, in 18S1, continued the charters of aereral banks 

to 1845, upon condilion,lhat they would^mafce a road and pay a school tajb 

This would hare eisttptml their franchise, but noi their p roperty, Snooi ta»* 

Bat another clause la* the law ]>royided, that upon anr of the aforesaid banks 

accepting of and complying widi the terms and conditions of the act,- the fiuth 

of the state was pledged not to impose'any fVirther Ux or bnrdea apon thsn 

dnring the cootinnance of their charters noder the act 
Thi4 was a contract relating to something beyond the franchise, and exempted 

the stockholders firom a tax levied upon diem as individuals, according to the 

amount of their stock. 

These wore Idndred cases, brought up by writ of emnr from the 
Court of Appeals of the state of Marylanci, under the 25th section of 
the Judiciary Act of 1789. 

The first case depended upon the constitutionality of a tax imposed 
by the legislature of Maryland in 1841, it bein^ allied to be in 
violation of a contract made by the legislature m ISSl ; and, the 
second depended upon the same circumstance^ with the addition tfist 
Ae plaintiff in error was entitled tp tbe benefit of die same contract, 
by virtue of an act of the General Assembly, passed in 1834. 

The facts in the case were these:— 

At November session, 1804, the legislature of Maryland incorpo- 
rated the Union Bank pf Mainland. Samuel Gordon, the plaintiff 
in error in the first case, was, at the insdtutipn of the suit Ddow, a 
stockholder in this b«ik. No bonus was required to be paid to die 
state, but five thouand shares-were reserved for the use and benefit 
of the state of Maryland, to be subscribed for by die state, when de- 
sired bv the legislature thereof. The charter was to last until 1816. 

At the ses^iion of 1812. the legi&latu'r«u?a3a^d,jii.act, entitled ^^ An 
act to incoq>orate a company to make a tumpuce road leading to 
Cumberland, and fbr the extension of the charters of the several 



Gordon v. Appeal Tax Court. 

banks in this state, and for other purposes." It proposed to extend 
the charters of the banks to 1835, upon condition, that they would 
subscribe for as much stock as would raise a fi)nd necessary and suf* 
ficient to finish and complete the road, and upon the further condi* 
tion, should bind themselves to pay into the Treasury the sum of 
$20,000 for each and eveiy year that the charters ^ould continue } 
the fund being pledged for die support of common schools. 

TTie 12th section was as follows : 

"That Upon any of the barjcs in this state complying with the 
conditions of this act, the faith of the state is hereby pledged not to 
impose any further tax or bonus on the said banks di'ring the con- 
tinuation of their charters under this act." 

This act was not accepted by any of the banks. 

At the sesdon of 1813, the legislature passed another act, which 
was entitled a supplement to the aforegoing. The 1st section incor- 
porated a company to make the road. The second was as follows: 
"And for the purpose of raising a iund to make and complete said 
road: Be it enacted, That the charters of the several banks, &c., 
shall be, and they are hereby continued and extended to the 1st day 
of January, 1835, and to the end of the session of the General As* 
sembly next thereafter, upon condition of the said several banks sub- 
scribing, in proportion to their respective capitals actually paid in 
at the time of such subscriptions, for as much stock as is necessary 
and sufficient to finish and complete said road," &<;., &c. 

The 7th section enacted, that every bank should pay annually in- 
to the Treasury the sum of twenty cents on every nundred dollars 
of the cjapital stock actually paid in ; and if this were nedected for 
six months after it was due, the bank so neglecting should forfeit its 

The 8th section continued the charters of such banks as complied 
with the act until 1835. 

The 1 1th section ran thus : " That upon any of the aforesaid banks 
accepting of and complj^ng with the terms and conditions of this 
act, die faith of the state is hereby pledged not to impose any further 
tax or burden upon them during the continuance of their charters 
imder this act; and in case of the acceptance of and compliance 
with flbe provisions of this act by the several banks hereby required 
to make the aforementioned road, the faith of the state is fdrther 
solemnly pledged to the several existing banks in the city of Balti- 
more, not to grant a charter of incorporation to any other banking 
institution to fc established in the city or precincts of Baltimore be- 
fore the 1st day of January, 1835." 

At the session of 1815, an act was passed, " declaring the con- 
tinuation and extension pf the charters of the several baiucs therein 
mentioned." It lecited, that several banks, and amongst them the 
Union Bank, had accepted the act of 1813, and then declared, that 
their charters were extended to 1835. 

JANUARY TERM, 1845. 186 

Gordon «. Appeal Tax Coaru 

At the session of l821^<«nother act was passed, entitled ^^ An act 
to incorporate a company to make a turnpike road from Boonsbcrou^i 
to Hagerstown, and for the extension of the charters of the several 
banks m the city of Baltimore, and for other purposes." The pre- 
amble was as follows : '' Whereas it is to the interest of the state that 
a turnpike road should be made, leading from Boonsborough to 
Hagerstown, in Washington county, and it is represented to the 
legislature, tiiat the banks hereinafter mentioned are willing to make 
the same, it an extension of their several charters be grantee! to them, 
as they were heretofore extended by an act entitled a supplement to 
the act entitled, an act to incorporate a company to make a turnpike 
road, leading to Cumberland, and for the extension of the charters 
of the seversd banks in the city of Baltimore, aid for other purposes, 
passed at December session, 1813: Therefore, Be it enacted,^' &c. 

The Ist section incorporated a company to make the road. 

The 2d section was as follows: ^^ And for the purpose of raising 
a fund to make and complete said road, Be it enacted, That/ the 
charters of the several banks aforesaid shall be, and they are hereby, 
continued and e^ttended to the 1st day of January, 1845, upon con« 
dition of the said several banks subscribing, in proportion to their 
respective capitals actually paid in at the time of such subscriptions, 
for as much stock as is necessary and sufficient to finish and com- 
plete said road," &c. 

The 6th section was as follows : ^^ That if the said company shall not 
commence the making of the said turnpike road within two years 
fit>m the passage of this act, and shall not complete the same in four 
years thereafter, the richt of the said company to the said road shall 
revert to the state of Afaryland, and the charters of the said banks are 
hereby declared not to be continued or extended by virtue of this act" 

The 7th section enacted, that the banks should annually pay to 
the treasurer the sum of twenty cents on every hunched dollars of 
the capital stock of each bank actually paid in; and in case of neg- 
lect, the bank was to forfeit its charter. 

The 8th section renewed and cq|tflnued the charters of the com- 
plying banks until 1845 and the session of the General Assembly 
next mereafter. 

The 11th section was as follows: " That upon any of the afore- 
said blanks accepting of and complying with the terms and condi- 
tions of this act, the faith of the state is hereby pledged not to im- 
pose any iurther tax or burden upon them during the continuance 
of their charters under this act ; and in case of the acceptance of and 
compliance with the provisions of this act by the several banks here- 
by required to make the aforementioned road, the faidi of the state is 
further pledged, to the aforesaid banks in the city of Baltimore, not 
to grant a charter of incorporation to any other banking institution 
to he establi^ed in the city or precincts of Baltimore before the 1st 
day of January, 1845." 


Gordon «. Appeal Tar Court. 

The 12(h section was as follows: <<That the said banks, a>ecified 
in the 7di section of this art, should th^y elect so to do, flball be, 
and they are hereby, exempt from the payment of the annual tax 
hereby imposed, upon condition of their paying to the treasurer of 
the Western Shore of Maryland, on or before the 1st day of January, 
1823, the sum of 1100,000, to be appropriated in the manner here> 
•in before provided for." 

The Union Bank, as was admitted in the court below, duly ac- 
cepted and complied with the terms and conditions of thisTkrt of 1821. 

At the session of the legislature of December, 1834, an act was 
passed (chap. 274) to ^^ extend the charters of several banks in the 
ci^ of Baltunore," by which, amongst other enactments, the charters ^ 
pf the Union Bank was extended to the end oif the year 1859* It 
introduced some new provisions into the charter, required the pay- 
ment of the school tax and a proportionate share of (75,000 ; but 
contained no stipulation like that of the 1 1th section of the act of 1821 . 

At the sesnon of December, 1835, the Farmers' and Planters' 
Bank was incorpcH^ted. It was required to pay a bonus and school 
tax, but the charter contained no exemption from taxation. 

At the same session, viz., December, 1835, an act (chap. 142) 
was passed, reciting thzi whereas, by the 11th section of the act of 
1821, the feidi of the state was pledged not to impose any further 
tax or burden upon certain banks, and it was eqmtable that other 
banks should stand on equal footing, and enacting that the faith of 
the state was pledged not to impose any further or other tax on banka 
incorporated since the year 1821 than micht be imposed on the 
banks which bad complied with the terms of that act. 

The 3d section was as follows : ^^ And be it enacted. That in the 
said act of 1821, it was not, nor is it now, the intention of the Gene- 
ral Assembly of Maryland, to exempt from taxation and equitable 
contribution to the common burdens fo|r state purposes, the property, 
stock, or dividends severally held in or denvea from any buik m 
this state, by any person or persons whatever ; but that me true in- 
tent and meaning of the pledge given by tiie said act of Assembly 
was, to limit the taxation upon the franchises only of &e banks there- 
in mentioned.'' 

In April, 1841, an act was passed <^for die general viduation and 
assessment of property in this state, and to provide a ^.1o pay the 
debts of the state." It directed, amon^ other things, that ''all 
stocks or shares owned by residents of this state in any bank, insti- 
tution, or company incorporated in. any o(her state or territoiy : aD 
stocks or shares in any bank, institution, or company incorporated 
by this state," &c., should be assessed, and a tax unposed upon this 
and all i)ther species of property, of twenty cents, or one-fiflh of one 
per cent, on every hundred dollars of assefl^le property. It also 
provided for an Appeal Tax Court, whose decisions should be car- 
ried to the Court of Appeals. 


Gordon v. Appeal Tax Ooart 

In ibe trial of the cause in (be Court of Appeala, the following 
agreement was filed: — 

^^It is asreedy that the appellant banks, to wit, the Union Bank 
of MaiYlana, the Bank of Baltunore, &e Mechanics' Bank of Balti- 
morei Uie Commercial and Fanners' Bank of Baltimore, the Marine 
Bank of Baltimore, and the Farmers' and Merdiants' Bank of Balti* 
more, commonly called the old banks, were chartered previous to 
the year 1821 ; and that die new banks, td wit, die Merchants' Bank 
of Baltimore, the Farmers' and Planters' Bank of Baltimore, the Citi- 
zens' Bank of Baltimore, and the Weste^ Bank of Baltimore, were 
chartered smce the yea^ 1830; the respective periods of die incorpo- 
ration of all the aforegoing banks appearing by reference to their 

^^It iJB admitted, thdt the old banks have duly accepted and com- 
plied with the terms and conditions of the act of 1821, chap. 131, 
the manner of which acceptance appears by the pv>er manced A, 
herewith filed ; and have also accepted and comphea with the pro- 
viri<His of die act of 1834, chap. 274: and it is also admitted, that 
taxes have always, since the incorporation of said bieoiks, been levied 
and assessed imon their real and personal juroperty in .all the cities 
and counties of this state, in the same mani/er as upon property of 
the same kind belonging to individuals, and that said taxes have al- 
ways been paid by said banks i^ to this time. And it is fiirther 
admitted, that said banks did not, at the time of the enactment of the 
act of 1841, chap. 23, nor have they at any time since, paid or re- 
deemed their notes or other obligations in specie." 

The Court of Appeals decided, diat the tax imposed by the act 
of 1841 was not a violation of the contract between the state and the 
banks, which was effected under the act of 1821, and to review this 
ojnnion die writ of error was brou^t. 

Meredith and DuUmiJy for the plaintifis in error. 
Jfelsony attorney-general, and SUde^ for the defendants. 

In the case of Samuel Gordon, the counsel for the plaintiff in er- 
ror contended, 

1. That the Union BaiJc of Maryland having accepted of and 
coihplied with the terms and conditions of the act of 1821, chap. 
131. a contract .was created by the 11th section thereof, on the part 
of the state, "not to impose anjr further tax or burden upon said 
bank during the contbiuance of its charter under the 8th section of 
said act; and that this exemption firom taxation extended to all the 
pr6pert7 of said baidc, real and personal. 

2. iW die 1st and 45di sections of the act of 1841, chap. 23, im- 
posed upon die said bank " a fiirther tax and burden," in violation 
of the said contract, and was therefore void as against the provisions 
of the Constitution of the United States. 

And in the case of James Qieston, plaintiff in error, v. the Appeal 
Voi^ra.— 18 m2 


Gordon v. Appeal Tax Court 

Tax Court, who was a stockholder in the Farmers' and Planters' 
Bank of Baltimore, one of the new banks chartered since 1830, the 
counsel for said Cheston contended. 

That if the aforesaid assessment law of 1841, so far as it imposes 
a further tax upon the stockholders of the old banks, should be de- 
clared void for its repugnance to the Constitution of the United 
States, then, that it is equally void, so far as it imposes an additional 
tax upon James Cheston, a stockholder of one of the new banks, as 
it thereby deprives the new banks of the immunity from further tax- 
ation granted to them by the 1st section of the act of 1835, chap. 
142, which immunity is itself a franchise, granted for a valuable 
concideration, and cannot, therefore, be taken away. 

Dulanyj for the plaintiffs in error, said, that he would not stop to 
cite authorities to show, that the law was void, if it impaired the ob- 
ligation of a contract, but would refer to two cases which were ana- 
logous to the present: 7 Cranch, 154; 4 Peters, 561. 

He then entered into a detailed examination of the charter of the 
Union Bank with its several supplements, and asked the court to 
compare the 11th section of the act of 1821 with the act of 1841, 
and he thought it would be found, that the latter took away what the 
former gave. It was admitted, that there was an exemption of some 
kind in the act of 1821, and the only question in the case was, what 
kind of exemption was it ? 

In Dwarris on Statutes, 51 , 9 Law Library, it was said, that every 
word of a statute must have its effect ; that it was better to obsen^e 
what the legislature said than what they are supposed to have meant. 
Apply this to the paragraph, coupled with the doctrine that in Mary- 
land property is not taxed, but persons are. 1 Maxcy*s Laws, 12, 
Declara:ion of Rights, article 13, shows this. The exemption was 
then a pledge given to a person, viz., the bank. Why should it be 
limited, as contended for by the opposite side, to an exoneration of 
the franchise merely from taxation ? The construction ought to be 
in favour of the banks, because it was the intention of the legislature 
to in>4te tliem to accept the law. If you narrow it down now, it is 
not the spirit in which the offer was made. It is easy to see what 
that spirit was. The two objects of promoting internal improvement 
and fostering public schools were ijreat public objects, and it was 
very de-^irable to encourage them without resorting to direct taxation. 
The banks were the invited party, and the act was to be laid before 
the stockholders for approval or rejection. Of course, the terms 
would be closely looked at. The proposition was, that no " further'^ 
tax should be imposed. The word " further" refers to the preced- 
ing section, in which the tax for the road and schools is provided. 
It IS true, that the act of 1841 imposed a tax upon the property; but 
the tax for road and schools fell upon the very same property, and, 
as it happened, was of just the same amount. A furttier tax of the 


Gordon v. Appeal Tax Coqrt 

same character was meant. The object to which the money is to be 
applied makes no diflerence in the character of the tax. The clause 
is clear in itself, and we are not to look to the preamble, as a guide 
to intention, unless there is some ambiguity. Dwarris on Stat. 19. 
And if we look to the preamble, it will not enlighten us, because it 
only refers to the road, without saybg any thing cbout schools. If 
the exemption related only to the franchise, it was worth nothing, 
because whether the tax snould be laid on the franchise or the pro- 
perty of the bank, the same people would pay it in either case. The 
legislature could haye deriyed ^e same amount by taxing property 
as if they taxed the franchise ; and to hold, that they were at liberty 
to do so, of course, renders the exemption of the franchise worthless. 
There are two decisions upon similar words : 2 Harrison, 78, 79, 
80; 7 Dana, 342. 

True, the banks haye heretofore paid taxes upon their real pro- 
perty, but the amount was trifling, and the stock was not taxed as 
now. Besides, their consent does not furnish a rule by which we 
are to construe the law. 

It is said, on the other side, that the contract of exemption was 
made with the bank and not the stockholders; and by the act of 
1841 only the latter are taxed. But what is a corporation? Only 
the union of certain persons, with power to sue, &c. 4 Peters, 552; 
Angeli & Ames on Corp. 1, 3, 5. 

The name is only me legislative baptism of the stockholders. 
Natural persons are me substratum of the corporation ; they receive 
all its benefits. They pay the taxes, and yet we are told, that a con- 
tract for the benefit of the corporation does not reach them. They 
were the persons who accepted the law in a general meeting, and 
not the bank, actihg as a corporation. What is the difference be- 
tween taxing them in the gross and taxing them individually? 

As to the case of Cheston. He is a stockholder of the Fanners' 
and Planters' Bank, one of what are called the new banks, char^ 
tered in 1836. The act of March, 1836, chap. 142, puts tliese on 
the same footing with the old banks. The 3d section, it is true, 
says that the exemption relates only to franchises; but the legisla- 
ture had no right to deprive, by law, the banks of a benefit which 
they had already acquired under a contract. And the words " with- 
out violation," &c., show that the legislature did not intend to take 
away any such benefit. 

The tax of 1841 clashes with the exemption. It is laid on every 
thing which constitutes the property of the bank, because in a sche- 
dule every thing, even the franchise, goes to make up the aggregate 
value of the stock, and the tax is laid on the cash value of the stock. 
By the 17th section, the assessors are directed to value it at the 
market price. But the market price is governed by the value of 
all the diflerent species of property held by the bank, including even 
the fitmchise, because a purchaser looks at all these, when about to 


Gordon «. Appeal Tax Court 

hiTest It is imposrible to separate that porti<« of the tax -wtiA 
fidls upon the fianchise, and as the legislature has coyered the wbok, 
the entire tax. must ML. 

Steekf for the defisndbmts in error, contended, 

1. That 4ie Contract betwe^i the State of Maryland and' the 
Union Bank of Mar^dand, created by the act of 182), chap. 131| 
and contmued by the act of 1834, cliap. 2t4, exempted fi^m taxm« 
tion, not die property of said bank, nor the shares or its stock in the 
hands of individual stockholders, but its coiporate franchises, ami 
their exercise during the continuance of its charter. 

2. That the tax imposed by the act of 1841, chap.. 23, being a 
tax upons4fae diares of stock owned by individual stockholders, was 
not a violation of the cpntract between the state and the bank, and 
was, therefore, not unconstitutional. 

In the case of James Cheston, a tax was imposed and assessed 
under the same act of 1841, chap. 23, on the slmres of stock owned 
by the plaintiff in error in &e Farmers' and Planters' Bank of Balti- 
more — a bank chartered since 1830, and not included in the provir' 
sions of the act of 1821, cbap> 131. and the act of 1834, chap. 274. 

In this case, the cou isel for flie defendant in error contenoed, 

That the plaintiff in error was entitled to no immunity from texa* 
tion upon his shares of stock in said Farmers' dud Pluiters' Bank of 
Baltimore, either under the acts of Assembly^ herein before men- 
tioned, or under the act of 1835, chap. 142. 

Mr. SUeek said, the Appeal Tax Court is the nominal defendant 
only*; the real one is the state of Maiyland. The act of 1841 , chap. 33, 
is a general tax upon all property ; not on banks alone, but every n>e- 
des of property.' Tlie Court of Appeals^ decided that it did not conffid 
widi die act of 1821. Is it not a rule that this court will adopt a 
state's construction of its ovm laws? 

In this case it is not correct to construe the contract favourably to 
ttie banks. On die contrary, the rule is to construe stricdyanypro- 
viaon which imposes a limit upon the taxing power« 4 Peters, 503. 
Prov. Bank v. BilUngs. 11 Peters, 646— o48^ carries the riile still 

Such a rule is necessary to protect the community from improvi- 
dent l^iislation. Another rule is, diat where there are two constrac- 
tions, &t one is adopted which will produce the least injury. It 
has been said that our construction, exempting; franchises only, ren- 
ders the whole nugatory, because the franchises would have been 
safe from taxation without such exemption. But not so. ^ Being the 
creatures of law, they are peculiarly appropriate for the taxing power. 
4 Wheat. 699 ; 12 Mass. 252 ; 4 Pe^rs, 526. 

A charter makes a bank a person to carry on a bu^ess ; but it 
must be carried on in the same way t}iat other persons do. Suppose 
a pre-existing law had taxed banks, would a subsequent charter have 

JANUAftT TERM, 1845. 141 

Gordon v. Appeal Tax (/oart 

been exempt ? No— because the laws would not conflict with each 
other. Nor do diey conflict ^en the charter is passed first. 

It has been said that the exemption is clear. But die section it- 
self refers to the preceding part of the law, and the legislature, twice/ 
in 1835 and 1841, put the same construction on it that we d<^. Thd 
7^ section and all preceding ones provide for an extension of char- 
ters. It was nriit to exempt the minchises, because die legislature 
was dealing wim diat subject ; but why should diey go beyond that« 
and -exempt private property to an extent that they were not aw^are of? 
The stat6 was not in want of money, nor was mere a motive in the 
banJcs to purchase such an exemption as that contended for. No one 
dien anticipated' what hai since come to pass. Taxes were lu^t^ 
and always paid.. The act of 1813 contains the same clause, when 
tbBre did not exist any system of taxation. Up to 1841, the state 
had never taxed bank stoclc or choses in action, and the taxes upon 
real or other property -did not amount to the fourth part of 20 cents. 
A proposition,ifaereK>re, to exempt stock which had never been taxed 
at all, upon the payment of four times the amount which other pro- 
perty paid, would have been considered a strange one. The tax of 
SO cents must have been imposed upon the firanchise. The com- 
pensation for extending the charters was that the banks vrould mdke 
the road, and for future. exempti#i of the firandbise was that th^ 
dioidd pay 20 cents towairds the school fund. The word ^* further'' 
means another tax like that one; and if die tax imposed was upon 
die franchise, a further one upon die same thing was all d^ was in- 
tOMled to be prohibited. 

Look at the cotemporaneous exposition of the law by both partiet. 
County and city taxes were paid by the banks ; and not only so, but 
t flDiaU. state tax, leyied in 1822 upon real property, was paid by 
th^m aIso4 Other banks were incorporated in 1833, 1834, and 163^ 
vrhictk pay the 20 centsw without any thing being granted except the 
diarter. The act of 1835 gives the new. banks an exemption upon 
the franchise, and nbthinff more. In the casie in .2 Harrison, the 
words were ** further or o£er tax.'' Exemptions have b^n strid^ 
construed.. 11 Johns. 77; 8 Term R. 4t6. The penalty for not 
paying the 20 cents, shows upon what the tax was imposed) for 
itprovideslfiatthecharter shall cease if the tax is not paid. Itwas 
^dierefore a bonus for the charter. "■ 

But suppose that the contrabt was made as contended for by the 
other side. By their own showing, it was made with the biink as m 
person, and the intjividual stockholders cannot ayail themselves ol it 
If die corporation were to purchase a house, one of- the members 
could not claim an interest m the purchase. They have an interest 
which is distmct from that of Qie^corporation, because*they may sue 
it, or sue each othfr. If the contract hcfre be not to tut the bank, it 
is not equivalent to an agreement not to tax the stockbcflders. liie 
difference is Aown by. supposing the tax to be laid before the baoJc 


Gordon v. Appeal Tax Coart 

commenced ojperations^ and laid afterwards. In the first case, h 
would dimimsh the capital of the bank, but in the latter it would not 
If the individual stockholders can claim the benefit of the exemption, 
they must also be liable to the state for the payment of the tax which 
is me price of the exemption. But if Samuel Grordon were sued for 
the 20 cents stipulated in the act, no one can suppose that he would 
be bound to pay it. The difference between taxiMf banks and stock- 
holders is shown in 1 Nott & McCord, 627; 4 Wheat. 436; 2 Pe- 
ters, 459; 2 Bayly, 654, 672, 683. 

Who pays the tax of 1841 ? If the bank does not, there is 
no violation of the' contract with the bank, and the bank does not, 
in fact, pay it 

As to Cheston's case and the new banks, it has been said that 
they are on the same footinc; as the old. The best reply to this is 
to read the law. The legiskture expressly say, that they intend to 
exempt only the firanchises. 

Jfehorij attorney-general, on same side. 
There are two propositions to be examined : 

1. The nature of the contract of 1821. 

2. Whether the act of 1821 was in force at all in 1841. 

1. We admit there was a contract in 1821, and that it is pro- 
tected by this court. But what is its nature and extent? The 
original charter of the Union Bank contained no exemption, and, 
therefore, according to the doctrine in the Providence Bank v. Bil- 
lings, tiie state could tax it. The charter was passed in 1804, and 
contained no clause imposing a school-tax. But this might have 
•been imposed at any time after the charter, without asking the con- 
sent of the bank. The only point upon which the assent of the 
bank was required, in any subsequent legislation, was that its 
charter should be continued. It was to expire in 1816. In 1812 
an act was passed proposing to extend the charter on certain con- 
ditions, but these were not accepted. In 1813 another act was 
passed extending the charter to 1st January, 1835, which was 

(Mr. JVelson here went into a detailed examination of the several 
acts.) All the acts show that the legislature had in view the making 
of the road, and the banks the extension of their charters. The 
pledge not to incorporate any otlier banks shows that it was only 
the franchise which was intended to be protected. ITie contract 
was made with the banks as such. They were the contractmff 

{►arty in their corporate capacity. What does the act of 1811 do? 
t imposes no tax on the capital stock of any bank, but on indi- 
vidual interests. No bank is plaintiff in error here, complaining of 
a violated contract. The 9th section of the act directs the mode 
of making the assessment, which was upon the stock in the bands 
of individuals at its cash value. But this is not the same with its 


Gordon «. -Appeal Tax Court. 

nominal value, which would hkre been the guide if the bank had 
been taxed. As laid, it is nothing more than an income tax, and 
cannot a 1q;islature lay that wiuiout regard to the source from 
irtiich rerenue comes ? The distinction between a tax upon a bank| 
as such, and a tax upon its property, is clearly recognised in the 
case of McCuUoch v State of Maryland, where the court say that 
one may be taxed but not the other. The identity between a bank 
and its stockholders is dbown not to eigst, when we consider that 
die bank, as a corporation, could not become one of its own stock- 
holders. Application Imd to be made to the legislature for permis^ 
sion for the bank to purchase its own stock. It is true, as said on 
the other side, that the act of 1821 was accepted by the stock- 
holders in general meeting, but this was a corporate act, and not 
one proceeoinff from individoal interests. If it had been the latter, 
whence would the majority have derired die right to bind the 

2. Tne act of 1834, chap. 274, was accepted by the Unio^ Bank, 
and by rirtue of it the charter was extended to 1859. Tlie ac* 
ceptance of this new law is a merger of the old, and in the new 
diere is no limitation of the power to tax. 

Marediihj for plaintifis in arror, in reply and conclusion. 
JLet us inquire, 

1. What was the nature and character of die conttact? 

2. Has it been impaired ? 

Mr. Meredith reviewed the charter of the Union Bank and its 
supplements, and said, that in 18;21, some years before the charter 
was to expire, the legislature was desirous of making a road. It 
was a feet of universal notoriety that turnpike roads were not pro- 
fitable. Individuals could not be persuaded to subscribe and make 
this one. . The cost to the Union Bank was $161,000, neariy ten. 
per cent, upon a capita] of $1,800,000. It is conceded that for 
this the state has relinquished a portion of the power of taxation ; 
but then it is said to be only a partial exemption. We agree that 
Ao make out a total exemption, the language must be so strong, as to 
leave no reasonable doubt ; and we say it is so. What are the 
words ? " Not to impose any further tax or burden on tiie banks.'' 
Tkere are two important words : " any*' and " fiirther." What is 
the meaning of ** any ?'' In its popular acceptation it would in- 
clude all ends of taxes in whatever form Uiey might be laid. 
Accordinjg to lexicographers, the word is of unusual and indefinite 
signification. " Any" tax qiust mean " every tax,*' of every nature 
or description whatsoever. Then there is the word "further,** 
whicli refers to something which has been done before and addi* 
tional. The other side wish to limit the meaning to an addition of 
die same nature ; biit no -dictionary or example can be found to 
fustify this restriction. 


Gordon v. Appeal Tax Court. 

(Mr. Meredith here read from' Riclrardson's Dictionary, tifle 
^Further.) Hie two words together are as comprehehsiye as Un- 
ffua^ could be used. They are quite as strong as those used in 
2 Imrison. Li the act of 1835, when the legislature intended to 
put the 'new banks upon a footings with the old, they say ^^ further 
orother" in the 3d ^ectioo. In a preceding section, the wore ^ are 
the came as those in 1821, which ^ows that they were supposed to 
be equivalent. The case cited from 11 Johnson, was not that of^a 
tax; it ivas an assessi^ent for opening a street; and the case in 
8 T. R. was dedded on two grounds: 1. That tiie property did not 
belong to the occupier, and 2. That the statute haa been repealed. 
Neither case is in pomt In Soudi Carolina, s^ven out of eight 
banks are exempted under si clause exempting banks* from taxation. 
The case in Nott & McCord tkcided that words of exemption did 
not extend to &e franchise only, but all taxation. 

If the words -of a statute are plain and definite, it is dangerous to 
depart, &c. Dwarris on Stat. 3 LawXiib. 48. 

If the construction of the other side be given to the act^of 1821, 
ihe\ 11th section is of no use ; because without it the franchise 
would have been safe from taxation. ^ In the ca^s of 12 Mass, and 
4 Peters, the right was maintained. It is true, to impose a tax on 
-existing banks, but in neither case was there a relinquishment of 
the taxing power,^xpreisS or implied, except from the mere granting 
of the charter. We may concede the authority of both. Sut here 
the banks paid a high p^ice for their renewed charters, and the 
legislature could not have taxed the franchise any further. If so, 
the operation of th^ 11th section must be extended beyond the 

(Mr. Meredith then entered- into a critical examination of the acts 
oi 1812 and 1$13, ami ai^ed that the first act was not accepted, 
because it did not go as far ia protecting the banks as that of 1813^ 
and that the latter would have been rejected if it had not been sap- 
posed to exempt them entirely from taxation.) 

Mr. Justice. WAYNE delivered the opinion of the court 
• The questioh raised in this case by the agreed statement of fisicts 
upon the record, is. Does the act of Maryland of 1841, chap. 23, ao 
fiur as it. imposes *a tax upon the shares of stock held by jtbdc- 
holders in the Union Bank of Maryland and the other baxucs men- 
tioned in the statement, impair the obligation of a contract ? 

Hie banks aie classified in that statement as. the old and the new 
banks. The old are those which were chartered previous to Ae 
year 1821 ; the new, those which were cheered. -after the year 1830. 

Their exemption from <he tax imposed by the act of 1841 » 
claimed under the acts of Maryland ot 1821, diap. 131, and i0iat of 
the 19th March. 1835, chap. 274, called the act of the sesnon of 

JANUARY TERM, 1845. 146 

Gordon v. App^l Tax Court 

It 18 admitted that the old banks accepted and have complied with 
the terms and conditions of the act of ^lo21 ; that they aJso accepted 
and ha?e complied with the proTisiqi\s of the act of 1834 ; and thi^ 
taxes have always, sinccf the incorporation of the banks, been aiBSssed 
and kx^ed upon, their real and personal property in all tiie cities and 
counties of &e state, in the same manner as upon property of' the 
same kpid belonging to imlividuals, and that they Iniy^ always b^n 
paid by the banks up to this time. 

The question, however, which this court is called upon to decide, 
and to which our decision will be donfined, is, Are the shareholders 
in the dd and the new banks liable to be taxed, under the act of 
1841, on account of the stock which they own in the banks ? 
. The statement ^Ten by flie rq>0rter of the acts of the legislature of 
Maryland, bjr which the charters of the hanks have been extended 
at different times, makes it unnecessary to refer to them in detail 

Are ihe old badte in Baltimore and their stockholders exempted 
6om furdier taxation during the continuance of their charters under 
the act of 1821,^ diap. 131, by force of the 11th section of that act? 
Can the bid baxDcs, uler the year 1846, the time to which their char^ 
ters wete eJlttended by die iud of 1821, and the new banks, claim 
any exemp^on ^m taxation under the act of 1834, chap. 274, un- 
less it be a tax upon their franchise of banking i 

It appears, froQi the aots of 1812, 1813, and 1821, tb t.the legis- 
latures .which passed them had in view the construction of the Cum- 
bcsrland and Boon^bprough turnpike roads, and the establishment of 
a school fund. That they designed to ^complish those objects by 
making some of the banks construct Oie roads, and all of them con- 
tributors to the schemed fund, as the price for their charters. A round 
sum, or an annual charge, with or without reference to capital stock, 
may be asked by a teeisb^ure for such a franchise. It may be more 
convenient to the banks to have such a consideration or bonus dis- 
tribnted through the years of their corporate existence, tiiian to pay 
its ^quivsdent m advance. This option was riven to the old banks. 
Being so ghren, it b conclu^ve that the legi^ture int^ided the an- 
nual tax or charge upon* the capital stocla of the banks to be the 
bonua or price, or. part of ^le price as to some of them, that they 
were to pav for the prolongation of their franchise of banking. 
When the banks accepted the acts, by choosing to p^ the annual 
cUuge instead 6f the stipulated alternative, it is plam that they 
thought so too, and that they understood in that way the contract 
between themselves and the state. Either was a condition^ to be. 
accepted and complied with befoie the cheers were to be extended^ 
Such a contract is a limitation upon the taxing power of the legisla- 
ture making it, and upon succeeding legislatures, to impose any 
further tax upon the franchise. But why, when bought, as it be- 
comes property, may it not be taxed, as land is taxed which has 

Vol. in:--19 N 


Gordon «. Appeal Tax^ Court 

The 12fh section was as follows: '^That the said banks, n>ecified 
in the 7th section of this art,. should th^y elect so to do, luall be, 
and they are hereby, exempt from the payment of the annual tax 
hereby imposed, upon condition of their paying to the treasurer of 
ttie Western Shore of Marylwd, on or before the Ist day of January, 
1823, the sum of $100,000, to be appropriated in the manner here- 
in before provided for." 

The Union Bank, as was admitted in the court below, duly ac- 
cepted and complied with the terms and conditions of thisllct of 1821. 

At the session of the legislature of December, 1834, an act was 
passed (chap. 274) to ^^ extend the Tshart^srs of several banks in the 
city of Baltmiore," by which, amongst other enactments, the charter^ ^ 
of the Union Bank was extended to the end of the year 1859. It 
introduced some new provisions into the charter, required the pay- 
ment of the school tax and a proportionate share of |75,000; but 
contained no stipulation like that of the 11th section of the act of 1821 . 

At the session of December, 1835, the Farmers' and Planters' 
Bank was incorporated. It was required to pay a bonus and school 
tax, but the charter contained no exemption urom taxation. 

At the same session, viz., December, 1835, an act (chap. 142) 
was passed, reciting that whereas, by the 11th section of the act of 
1821, the faith of the state was pledged not to im^se any further 
tax or burden upon certain banks, and it was eqmtable that other 
banks should stand on equal footing, and enacting that the faith of 
the state was pledged not to impose any furdier or other tax on banks 
incorpon^d since the year lo21 than mieht be imposed on the 
baidcs which bad complied with the terms of that act. 

The 3d section was as follows: ^^ And be it enacted. That in the 
said act of 1821, it veas not, nor is it now, the intention of the Gene- 
ral Assembly of Maryland, to exempt from taxation and equitable 
CK>ntribution to the common burdens fo|r state purposes, the property, 
stock, or dividends severally held in or denvea from any bank m 
this state, by any person or persons whatever ; but that me true in* 
tent and meaning of the pledge given by the said act of Assembly 
was, to limit the taxation upon the franchises (mly of tiie banks thoi^ 
in mentioned." 

In April, 1841, an act was passed ^^for tiie general valuation and 
assessment of property in this state, and to provide a ^.1o pay the 
debts of the state." It directed, amon^ other things, tiiat *^ all 
stocks or shares owned by residents of this state in any bank, insti- 
tution, or company incorporated in. any c^her state or territoiy: all 
stocks or shares m any bank, institution, or company incoiporated 
by this state," &c., should be assessed, and a tax imposed upon this 
and alli>ther species of property, of twenty cents, or one-fiflh of one 
per cent, on every hundfred dollars of asse^^ble property. It also 
provided for an Appeal Tax Court, whose decisions should be cnr- 
ried to die Court of Appeals. 


OordoB «. Appeal Tax Gonrt 

In die trial of the canae in the Conit of Appeala, the following 
agreement waa filed: — 

'^It 18 afl;reed, that the appellant banka, to wit, the Union Bank 
of Maryland the Bank of BaJtunore, the Mechanica' Bank of Balti- 
nottf the Commercial and Fannera' Bank of Baltimore, the Marine 
Bank of Baltimore, and the Farmera* and Merchanta' Bank of Balti- 
more, commonly called the old banka, were chartered preriona to 
die7earl821; and that die new banka, td wit, the Men&nta' Bank 
of Baltimore, die Farmera' and Plantera' Bank of Baltimore, the Citi- 
jKna' Bank of Baltimore, and the Weate^ Bank of Baltimore, were 
chartered amce theydu: 1830; the respecdve perioda of the incorpo- 
ration of all the atoregbing banka appearing by reference to their 

'4t ia admitted, that die old banka haire duly accepted and com- 
plied with the terma and conditiona of die act of 1821, chap. 131, 
die manner of n^ch acceptance appeara by the pap^r manced A, 
herewith filed; and have alao accepted and complied with die pro- 
Tiaiona of the act of 1834, chap. 274 : and it is alao admitted, that 
taxea have always, since the incorporation of aaid banks, been levied 
and assessed npon their real ana personal juroperty in .all the citiea 
and countiea or diis state, in the same manifer aa upon property of 
the same kind belonging to mdividuala, and that aaid taxea have al- 
waya been paid by said banks vtp to t£is time. And it is fiirther 
admitted, that said banks did not, at the time of the enactment of the 
act of 1841, chap. 23, nor have they at any time since, paid or re- 
deemed their notes or other obligationa in q>ecie.'' 

The Conrt of Appeals decided, that die tax impoaed by the act 
of 1841 was not avioladon of the contract between the state and the 
banks, which was effected under the act of 1821, and to review thia 
opinion the writ of error was brought. 

Marediih and Dulawf^ for the plaintiflb m error. 
Melton^ attorney-general, and SUde^ tor the defendants. 

In die case of Samuel Gordon, the counsel for the plaintiff in er- 
ror contended, 

1. That the Union Bank of Maryland having accepted of and 
complied with the terms and conditions of the act of 1821, chap. 
131, a contract was created by the 11th section thereof, on the piurt 
of die state, << not to impose any further tax or burden upon said 
bank during the continuance of its charter under the 8th section of 
said act ; and that this exemption firom taxation extended to all the 
pr^per^ of said bank, real and personal. 

2. TW die 1st and 45di sections of die act of 1841, chap. 23, im- 
poaed upon the said bank << a fiirther tax and burden," in violation 
of the md contract, and was therefore void aa against the provisions 
of the Constituti<m of the United States. 

And in the caae of Jamea Cheston, plaintiff in error, v. the Appeal 
Vol. m.— 18 m 2 


Gordon «. Appeal TaxCoart: 

the sense in which they are intended to be used, is determined by 
their connection with what is said besides. When we speak of an 
' act to be done by a bank or banks, we mean an act to be done by 
those who have the authority to do it. If it be an act within the 
franchise for banking, or the ordinary power of the bank to contract, 
and it is done by the president and directors, or by their agent, we 
say the bank did it, aiid every one understands what is meant I^ 
however, an' act is to be done relative to the institution, by which 
its charter is to be in any way changed, the stockholders must do it, 
unless another mode to effect it has been provided by the charter. 
In one sense, but after it has been done, we may say the bank, did 
it, but only so because what the stockholders have done, became a 
part of the institution, which it was not before. The act to be done* 
m this instance was r^ative to the institution. The le^akdore 
knew it could only be done by the stockholders, and it uses tibe 
word banks in reference to the act being accepted by the stock* 
holders. The'> act was accepted by them. Whep, then, the lefi;id»- 
ture says, ^* th^it upon any bf t^e aforesaid banks' accepting oi and 
complyii^ wid) the terms and conditions of this act, the faith of.the 
state is herebyt pledged not to impose any fuither -tax or burden- 
upon them during the continuance of their charters under this act,'^ 
the relative is ^ broad 9S the antecedent, comprehending all ihat 
the latter referred to. It cannot be said, then, that the stockholders 
in the old banks are not exempted by the 11th. section of the act 
of 1821 from bein^ taxed as persons, on account of their stock in 
those banks, durmg the continuance^ of their charters under 

Such was manifestly the intention of the legislatures which passed 
the acts of .1813 and 1821, from their lan^age.. It is confirmed 
by the* attendant circumstances. Each of those legislatures were 
amdous to have a certain road constructed, which they thought the 
convenience and intercourse of the citizens of Maryland, required ; 
and they were also anxious to raise an adequate school fund for * 
every county in the state. They determined that both ^should be 
accomplished by incorporating certain banks, with the obligation 
upon uem to make the roads, and to make all tiie banks m the 
state pay an annual tax upon their respective capitals, for a school 
fund, as the conditions upon which their charters were to be ex-^ 
tertded. By the ac.t of lol3, chap. 122, every incorporated bank 
in the state was required to pay the annual tax of twenty cents upon 
every hundred dollars of its capital stock, as the condition upon 
which its charter '^as to be extended. 

When the legislature, in 1S21, incorporated the Boonsborou^ 
Turnpike Company, and proposed to exteAd the charters of those 
banks which, by the terms of the act, were to subscribe for stock 
enourii to complete the road, it renewed upon those banks the 
school 1$x which had been imposed upon them in common wifb the 

JANXJARY TERM, 1845. «• 

Gordon •• Appeal Tax GonrL 

■ ^-l^^— ^^— ^^^^^M ■ I ■ I — ^— ^i^ 

Other banksy by the abt of 1813. The 1 1th sections in both acts are 
identicaL In what roirit were those acts offered to the acceptance 
of the banks ? In what qpirit was it that the banks viewed and ac* 
cepted these acts? It was an unusual wa^ of providing means for 
^ construction of turnpike roads. The tolls might turn out to be 
enouj^ to compensate tnem for the expenditures. They might not 
llioug^ the legislature thou^t the construction of the roads and 
paying the schootfund tax were no more than an adequate price 
for an extended {ranchise, it is very certain that the stockholders 
may have thought, that the incorporation of the banks into turnpike 
companies, with an obligation upon them to withdraw so much 
money from their busmess operations as was sufficient to finish the 
roads, presented only a contingent possibility that they could be re- 
munerated by tolls from the roads. When the act of 1821 was 
proposed » they had some experience of what had been the result of 
the construction of the Cumberland road. Is it not possible, then, 
that wh^n tli^ 5»^t;^ of 1813 ar*d 1821 were in preparation, or as they 
were being enacted, that the 11th section was introduced as an in« 
ducement to the stockholders to accept those acts? Whethei* the 
tolls from the road have ever compensate the banks for the expen* 
ditore upon them, doea not i^pear m the case. But it was natural 
that the stockholders, knowing as they did that a tax upon the 
firanchises of the banks would not exempt them from other taxation, 
stipulated in both instances &at a provision should be introduced 
into the acts surrendering the state's rifi£t to tax fliem frirdier than 
ihej^ were about to be by those acts, in whatever way we examine 
the acts of 1813 and 1821, we are of opinion that it appears fix>m 
the 11th sections in those . acts, to have been the intention of the 
legisiatores which, passed them, to exempt the stockholders from 
taxatibn as persons on account of the stock which they owned in 
4^ banks. This exemption, however, is limited to the old banks 
in Baltimore which were chsurtered before 1821, during the contin- 
uance of their charter under the act of 1821. It is founded upon 
die 11th section of that act, and it b our opinion that the act of 
1841, chap. 23, iji so &r as it imposes a tax upon the stockholders in 
those banks, on account of their stock, does impair* the obli^tions 
of a contract, and is void by the 10th section of the 1st article of 
die Gonsdtution of the United States. 

The act of 1834 does not extend to the old or the new banks an 
exemption from the tax imposed by the act of 1841, chap. 23. It 
is an act to extend the charters of the several banks in Baltimore. 
The second section. prescribes the -terms upon which the franchise 
for banking is extended. Those terms are the payment annually of 
twenty per cent upon every hundred dollars of the respective 
capitals of the-banlcs, and their proportional parts of $75,000, in 
two yearly instalments, computed from the passage of die act, ac- 
cording to the combined rates of their respective capitals paid in, 



OordoD V. Appeal Tax Coart 

and of the time for which their charters are reqpectiyely contiiraed 
beyond the first day of January, 1845. 

upon a failure 6f any bank to pay either the annual chare;e or its 
proportion^ instahnent, its charter is declared null and ToicL The 
annual charge and the instalment make the bonutf to be paid by 
each bank for its continued fianchise. It was urged for the old and 
the new banks, that the annual tax which they were required to pay 
by the second section of the act 6f 1834 being upon their re^>ectiye 
capitals, a tax upon the stockholders on account of their stock 
would be equiyalent to an increase of the price which had been 

S'yen for the franchise. The efieot upon the stocldiolders would be 
e same, as they pay both, but that is because they agreed to pay 
an annual tax upon ue capital stodc, for their fira^cluse^ ^^ithout any 
stipulation by the state that they were not to be taxed as stockhold- 
ers, on account of their stock, as was the case in the eleyendi sec- 
tion of the act of 1821. The firanchise is their coraprate property, 
which, like any other property, would be taxable,'if a pHce haid not 
been paid for it, which the le^lature accepted, as the consideration 
for alfowinfi^em to use the mmchise during the continuance of their 
charters. The capital stock is another property — corporately asso- 
ciated, for the purpose of banking — ^but m its parts is die indiyiduai 
property of the stockholders in the proportions tB^ may own them. 
Being their individual property, they may be i^xed for it, as they 
may for any other property they may own. This is not 6nly the 
case in Maryland. A franchise for banking is in eyery state of the 
union recognised as property. The banking capital attached to the 
francliise is Another property, owned in its parts by persons, corpo- 
rate or natural, for which they are liable to foe taxed, as they are for 
all other property, for the support of goyemment. 

We are of opinion that the stockholders in the old banks are 
exempt from the tax imposed by the act of 1841, chapter 23^ 
during the continuance of their charters under the act of lo21, but 
that the stockholders in the old and new banks are liable to be taxed 
by the act of 1841, or that they can claim no exemption under the 
act of 1834, by whiclttheir charters were further extended. 

The jud^ent of the Court of Appeals is therefore reyersed, and 
the cause will be remanded, with directions to enter up a judgment 
for the plaintiff in error. 

JANUARt TERM, 1846. 151 


BSUANB Road, within ths Statb or 'Pennsylvania, PLAurinr 


tJnder d»e acts of Congress eeding toPennsylvatfia that part of the Camberland 
road which is within that state, and the acts of Pennsjlrania accepting the 
surrender, a carriage, whenever it is carrying the mail, mast he held to be 
laden With the property of the United Sutes, within the true meaning of the 
compact, and conseqoentlj exempted from the payment of tolls. 

But this exemption dues not apply to any other property conveyed in the same 
vehicle, nor to any person tl-avetUng Sn it, uolc.-s he is in the service of the 
United Slates and passing along in pursuance of orders from the proper ao- 

Nor can the United States claim an exemption for more carriages than are na- 
cetsaxy for the Mie, speedy, and convenient conveyance of the maiU 

This case was brou^ up by writ of error from the Circuit Court 
of the United States for the western district of Pennsylvania, and iii« 
Tolyed ihe right of the plaintiff in error, acting under the authority 
of the state of Pennsvlvania, to collect tolls from the stage-coachea 
which carried the mail of the United States. 

The circumstances under which the question arose were these : 

On the 30th of April, 1802, and 3d of March, 1803, acts of Con- 
cress were passed, tne eflect of both of which taken together was, 
mat three per cent, of the amount received for the sales of public 
land in Ohio, should be expended 'm making roads within the said 
state, and two per cent, of said fund be also expended in making 
public- roads leading from the n^vigs^le waters emptying into the 
Atlantic to the Ohio river, upon certain conditions, which were ac- 
cepted by Ohio. 

On the 29th of March, 1806, Congress passed an act to provide 
for laying out Ae road by commissioners, and directed the President 
to pursue such measures as in his opinion should be proper to obtain 
the consent for making the road, of the state or states through ^^ch 
die same may hare been laid out ; the expense of the road to be 
charged to the two per cent. fund. 

Pennsylvania, Virginia, and Maryland all gave their assent. Penn- 
sylvania passed her law on the 9th of April, 1807, and gave power 
to those who were to make the road to enter upon land, dig, cut, 
and carrjr away materials, &c. The road was laid out from Cum- 
berland, in Maryland, to Wlieeling, on the Ohio river, and made ; 
but a great difficulty having arisen, on the part of the United States, 
in keeping it m repair, the road fell into decay, and a new system of 
legislation was adopted to attain this object. 

On the 4th of Februarv, 1S31, the state of Ohio passed a law for 
Ae preservation and repair of tlie United States road. It provided, 
that whenever the consent of Congress should be obtained, the go* 
▼ernor of the state should take the road under hb care, erect gates 


Bearight v. Stokes et aL 

and toll-house», appoint a superintendent, collectors, of toDs, &c., 
with this proviso amongst others: ^V Provided, also, That no toll 
shall be received or collected for the passage of any stage or coach 
conveying the United States mail, or horses bearing the same, or any 
viragon or carria^ laden with the property 6f the United States, or 
any cavaliy or omer troops, arms, or militarv stores belonging to the 
same,vor to any of the states comprising this union, or any person 
or persons on duty in the military service of the United States or of 
the militia of any of the states." 

Tlie law contained the necessary provisions for the preservation of 
ffood order upon the road, and also a stipulation that the to)\s should 
be neither below nor above a sum necessary to dc^y the eiq>eD8e8 
incident to the preservation and repair of the same. 

On the 2d of March, 1831, Congress assented to this act« 

Oh the 4th of April, 1831, Pennsylvania passed an act ^^ for the 
preservation and repair of the Cumberland road." It provided for 
the appointment of conmiissioners, who were directed to build toU- 
hbuises and erect toll-gates, to collect toUs, with the folloi^ing excep- 
tions : ^^And provided, also. That nothing in thi6 act shall be construed 
so as to authorize an^^ toUs to be received or collected £t)m any per- 
son or persons passing or repassmg from one part of his iarm to 
another, or to or from a mill, or to or frpm any place of public wor- 
ship, funeral, militia training, elections, or from any student or child 
gomg to or from any school or seminaiy of learning, or from persons 
smd witnesses goin^ to and returning fit>m courts : and provided^ 
further, that no toll shall be received or collected for Ae passage of 
any wagon or carria^^e laden with the. property of the United States, 
or any cannon pr muitaiy stores belonging to the United States or to 
anyof the states composbg this union." 

The 4th section directed the amount of tolls, after deducting ex- 
penses, to be ap]) the repairs and preservation of the road, and 
gave the comml'<bi oners power to increase or diminish the rates of 
tolls, provided that thev should at no time be increased beyond tfie 
rates of toll established by an act incorporating a company to make 
a road from Harrisburg to Pittsburg, passed in 1806. The toll fixed 
by this act upon a coach and four horses was twenty cents for every 
five nnles. 

The 10th section was as follows : " And be it enacted, &c., That 
this art shall not have any force or effect imtil the Congress of the 
United States ^all assent to the same, and until so much of the said 
road as passes through the state of Pennsylvania be first put in ^ 
good state of repair, and an appropriation made by Congress for 
erecting toll-houses and toll-gates thereon, to be expended under 
the au&ority of the commissioners appointed by this act: Provided, 
the legislature of this state may, at anv future sesaon tfaoeof, change,. 
alter, or amend this act, provided mat the same diall not be so aL* 
tered or amended as to reduce or increase the rates of toU hereby 

JANUARY TERM, 1845, Itt 

Searifht «. Stokes et aL 

establidbed bdow or above a sum necessaiy to defray the ezpenaes 
inddent to the preseryadoii and repair of said road, for the pmnent 
of the fees or salaries of die coinmi8sioiiers,.the.coUectorB or tolls, 
and other ^igents. And provided, further, that no change, alteration, 
or amendment shall' ever be adopted, that wHl in any wise defeat or 
alDfect &e true intent and me&ning of this act" 

On &e 23d of January, 1832, Maryland passed an act, which^Sa 
its esKntial proviaons, was &e fame widi that of PemuylYania ; 
ind on the 7u of February, 1832, Yiiginia pasted a similar lav. 

On tfie 3d of July, 1832, Congr^ declared its assent to the above 
mentioned laws of Pennsylvania and Marjrland in tfiese words, ^' to 
idiich acts the assent of the United States is hereby given^ to remain 
in &>rte during the pleasure of Congress," and appropriated $160^000 
to cany into efiect the provisions of said acts ; and on die 2d of 
Mardi, 1833, assented to the act- of Virginia, widi a similar Umitft- 

On, the 24di of June, 1834, Congress passed an act for the con- 
tinuation and repair of the Cumberland road, appropriating $300,000 
to that object 

The ^hsection was as fohows : ** And be it further enacted. That as 
soon as Ae sum by this act appropriated, or so much thereof as is 
necessary, shall be expended in, the renair of said road, agreeably to 
the proviaons of this act, the same diall be surrendered to the stetep 
respectively through which said road passes ; and the United States 
shall not thereafter be subject to any expense for repairing said 

On tfie 1st of April, 1835, Pennsylvania passed a supplement to 
the act above mentioned, accepting the surrender by me United 
States, &c., &c. 

On die 13th of June, 1836, Pennsylvania passed another acf re- 
lating to the tolls on that part of the Cumberland road whidi passes 
- tfirough Pennsylvania, and for other purposes^" the 1st section of 
idiich was as follows : << That, all wagons, camases, or other modes 
of conve|rance,pasring upon that part of ^e Cumberiand road whidi 
passes tfarouf^ Pennsylvania, canying goods, cannon, or military 
stores belonsing to tiie United States, or to any individual state in 
tfie noion, wlincn are excepted finom the payment of toll by the 2d 
section of an act passed the fourth of April, anno Domini eighteen hund- 
red and thirty-one, shall extend only so far as to relieve such wasons. 
carriages, and other modes of conveyance from the payment of ioll 
to the proportional amount of such goods so carried belongmg to th^ 
United States or to any of the mHividual states of die union ; and 
that in all cases of wagons^ camajs;es, stages, or other modes of 
conveyance, canying the United States' mail, with passengnrs or 
ffoods, such wagon, stage, or other mode of conveyance, shall pay 
naif tdl upon such modes of conveyance." 

On die Ml of April, 1843, another act was passed by Pennsyl- 

Yoi^IIL— 90 


Seartght •. 8toke« et al. 

vania, the 39th section of which was as follows : ^* That from and 
after die passage of this act, the commissioner of the Cumberland 
road shall have power to increase the rate of toUs on all sta^ 
coaches drawn by four or mote horses, to any sum not exceeduuf . 
one dollar, at each fl;ate upon said n»ad within the state of Pennsjl^ 
vania; lind the said commissioner shall have the same power to 
enforce the payment and collection of tolls authorized by me act of 
thirteenth of June, eighteen hundred and thirty-six, relating to toUs 
on that part of the Cumberland road pasang throu^ PennsyhraiiUL 
by stopping such coach or coaches, as is proyided by the act of 
fourth of April, ei^teen hundred and thir^-one, for the presenration 
and repair of the Cumberland road.; and to exercise all the means 
and remedies authorized W said acts for the collection of tolls and 
preyention of fraud on said road ; reserying also to the said conn 
missipner the ri^t to sue or maintain arv action thorefor, as he 
might or could do at commpn law, in addition to the remedies 
herein proyided.** 

A suit was brou^t on the 29th Noyember, 1842. in the Circuit 
Court of the United States for the western dis^t of Pennsylyania, 
by agreement of parties, and a statement of &cts, signed by the 
respectiye counsel, in the nature of a special yerdict, as follows: 

<< It is agreed thait this case be submitted to the court on the fol- 
lowing statements of facts, as if found by a jury.. 

^* 'Ae plaintiff is the commissioner ana superintendent of so muck 
of the Cumberland or National road as hes within the ^tate of 
Pennsylvania, duly appointed under and by yirtue of the laws of 
that state in such case provided, and is a citizen of said state. The- 
defendants and Richard C. Stockton, whom they haye surviyed, aire 
and were citizens of Maiyland. The defendants, together with die 
said Richard, whoYn they have sunriyed, were joint pajttners in cer- 
tain contracts for carrying the mail of the United States hereunto 
annexed. The route described in said oontracts extended oyer so 
much of the road galled' the Cumberland or National road as lies 
within the commonwealth of Pennsylyania. &Bd . contracts were 
duly executed between the postmaster-general of the United States 
fttereto lawfidly authorized by the laws of the United States^ and 
said contractors in conformity with law. The mail of die United 
States was transported by said contractors in accordance with the 
provisions of said contracts, during the time therein stipulated, in 
carriages constructed in conformity with the directions and require- 
ments of the postmaster^general ; said carris^^ were constructed 
and accommoaated as weU for the transportation of the mail, as for 
carrying passengers and their ba]g[gage, but the number of said pas- 
sengers was limited so as not to mterfere with or impede the trans- 
portation of the mail, and in no case was any passenger clurried 
when the transportation of the mail would be thereby retarded or 
interiSsred widi. The said National road within the territorial limits 

JANUARY TERM, 1846. 166 

Bearight «. Stokes et at 

of Pennsylyania was, 80 fiur and to such extent as the Constitution 
and laws of the United States, and the'state of Pennsgrlvania, vested 
the same, the property of the United States, and had been con- 
structed under die audiorit^ of said laws by the United States, 
llie Constitution and laws of the United States, and pf the common- 
wealth of Pennsylvania, bearing upon this subject, and the executive 
proceedings of the same respectively, are to be deemed and con- 
sidered part of" this agreed case. No toDs were paid by said con- 
tractors for or upon any vehicle or carriages employed or .used by 
diem for the tranq>ortation of said mail during the period of the 
existence of said c<mtracts, notwithstanding saicfcarriages ordinarily 
as aforesaid carried passenrars, and said contractors received tlie 
passage money therefor for ueir own .use. 

'^ Under the laws of the United States and of fhe state of Penn- 
sjrlvania, so much of. said Cumberland or National road as lies 
within die Ujouts of the state of Pennsylvania, was ceded by the 
United States, and accepted hj Peimsylyieuiia, upon the terma and 
conditions expressed and contained in said statutes. Since the vear 
1835, the 'State of Pennsylvania has held said road under and by 
virtue of said laws, and has performed the terms and conditions 
therein prescribed in every respect, unless the imposition and claim 
of t^Us as herein stated is so far an infraction of the compact created 
by said laws. Payment of tdls imposed by and under the laws of 
Pemu^lvania, has been demanded of said contractors by the plaintiff 
and his predeccissors in office, for and on account *of their carriages 
so as aforesaid employed in the transportatioh of the znail with pas- 
senjgers so^ carried as {foresaid; such payment of tolls has been 
resisted and refused by said contractors on the ground that the car- 
riages employed in me transportation of the mail of the United 
States, on said road, wore, not under the said compact and laws 
legally liable to the payment of said' tolls. 

^^'pie said carriages employed in the transportation of the mail 
were four-wheel carriages orawn by four horses each, and they rai| 
over said route and dirou^ the six gates which are upon said road 
within the said state of Pennsylvania, twice daily, being dieir eastern 
and westam routes. The full rates of toll established by law upon 
said road in Pennsylvania, for a dailjr line of four-Korse post -coaches 
or stages, were, at each of the said six gates, including the eastern 
and wMem routes, daily 

From 1 January, 1836, to 1 April, 1837, - - 40 cents. 

X* ",1837, to 1839, - . 60 cents. 

1839, to present time, - - 100 cents. 

^^B^lipon^foiegpinjg state of &cts.the court shall be of opinion 
diat the defendants are liable fi> pay tolls for thdr carriages so em« 
ployed in die transportation of the mail of the United Stetes, judg- 
ment to be entered for the plamtiff for die sum of |6000. If it 
riiall be 6f opinion that the said carriages so employed are not sub- 


Seatight «. Btokts tt\l 

ject to tbe payme&t of said tolls, then judgmciit to be entered fivr 
the defendants. j^^ p ^jjonnKES, Jbr PtaMifi. 

Rich'd. S. Cox, jfbr Jkfendanti.^^ 

Upon this statement of &cts the court below directed, judgment 
to be entered in &vour of the defendant, and to reviev this dedsbn 
of the court the writ of error was brou^t. 

VeechBnd Walker^ for the plaintiffs in error. 

Coxe and JftUon^ attorney-general, for the defendants in error. 

(This case was argued at the preceding tom of the court by 
Flermikin and Walker y for the plaintifis in error, and CcKce, for de- 
fendants, but the court ordered a re-argument at the present teim.) 

Veechy for plaintifis in error; 

Ai^er recitine the history of the road, said, that if the nmd was 
the property of the United S&tes, it might be conadered a harddiip 
that die EQ^ could not pass free. But Pennsylyania had cmly 
granted the right of way. She was the last of the three states who 
argued that it should l)e made, and' then stipulated that it should 
pass certain points. 

The United States had no jurisdiction over tHe soil, and no more 
power pver it than state officers had when they were making state 
roads. No one thought of making any provision for keeping the 
road in repair. As soon as ten nmes were made, a difficmty arose 
upon this point. « 1 CoUection of Surreys, &c., published in 1839, 
by order of the Senate. Report of Shnver, conununicated to Con- 
gress by Mr. Gallatin. 

Mr. Gallatin said, that ^^ tolls were suggested, but thi^ could 'only 
be done by authori^ of the state." Same book, 133, 639. 

Mr. Dallas, when secretaiy of the Treasury, made a report on the 
subject, in which he said that provision ou^t to be made for keep- 
ing the road in repair, but that Congress, of itself, had no power m 
thepremises. Doc. No. 69, page to3. 

llie road continued to decay until 1822, when a bill was passed 
to erect gates and collect tolls, which was vetoed by the President 
of the Imited States. Congress then appropriated a small sum for 
repairs. Mr. Buchanan moved an amehdment, providing for a ces- 
sion of 4he road to the states through which it passed, on condition 
that they would collect tolls and keep it in repair. There was -no 
reservation in &vour of the mail. 

In 1823 the same amendment was ofiered, widiout any reserva- 

Between 1828 and 1832, the road became so much out of repair 
fliat another movement was made. (The .counsel here referrea to 
the several acts which were passed by state legislatures and by 


Bearight v. Stokes et aL 

In the mean time, Pennsylrania had constructed roads leading 
fiom Pluladelphia to Pittsburg, and the question was, "whether she 
flhould turn the travel off her own roads to one which passed through 
oplj a small portion of the state. The Penhsylvania legislature struck 
out a part ofthe Ohio billj which they had before them. When the 
<Miio Ml was before Congress, Mr. Burnet, a senator from that state. 
said, &at care was taken diat the mail of the United States should 
pass free. 7 Reg. Deb. 287. 

There are other differences between the laws of Penhsylvania and 
Ohio. The Virginia law is almost a copy of that of Ohio, althou^ 
in the spipt of old-fashioned Virginia hospitalitjr, one who is visitmg 
his neignbour is not allowed to be charged with anv toll. Maryland 
copies the law of Pennsylvania. Maryland and Fekinsylvania said, 
that the United States should first put the road m*repair and erect 
toQ-bouses, whilst \nrginia imposed no such restriction. The cost 
to Congress was about $750,000 in repairing the r9ad and erecting 
fintes. Before this time, the mail was carriecTiii one line of coaches. 
The contract with the defendants for carrying it in 1835 was to pay 
them $9708. In 1837, tbev were paid ^7,600. 

Under the present law, half toll is chared upon the coaches T^idi 
carry tiie mau and passen^rs ; if there is. nothing but die mail diey 
ffo nree. Suppose we aamit, that the mail is me property of the 
United States, can a coach be said to be ^* laden with the property 
ofthe United States^ when it has nine passenj^rs in it and only a 
smpll mail bag? Or, could this be affirmed of a} wagon laden with 
flour and one mudcet ?■ Such a construction forces words from their 
'true import. But the mail cannot be properly called die properhr of 
flie United States. All carriers have a speciaJ property in their load 
to protect it from depredations. But' what the law means is, that the 
Umted States must have an unqualified right of property in the sub- 
ject matter. It will be necessaiy for the other side to make out two 

1. That the mail is the property of the United States. 

it. That, a* Vehicle can be said to be laden with the mail when it 
has a single bag in it 

Caxey for defendants in ierror. 

(Mr. Coxi tra9ed the history ofthe road as it is found in the laws 
and ill 1 State Papers^ tit MsceUaneous, 432, 474, 714, 718 940, 

The error of the argument on the other side is in supposing, that 
Ohio was the only party interested in the original construction ofthe 
road. The United States was a lar^ landed proprietor, and wished 
to open an eaafy access to the lancb in the west, in order that sales 
inig^t be increased. Pennsvlvania, it is true, did not cede the land 
over which the road passed, but ishe was deeply interested in the 
general result. The United' States did not claim sovereign power 


Searight «. Stokes et al« 

over it Still Ihey have some interest in it, and we do not claim 
more than all incorporated companies have ovjsr the roads which Ifaey' 
make. The Penn^lvania act is different from that of Ohio. But 
the reason is, that' the road was completed ip the former state and 
not in the latter. TMr. Caxe here reviewed, the particular provisions 
of the several acts.) Is there any ground to suppose, that Congress 
intended to make a difierent contract with dmerent states ? Tlie 
conditions are essentially the same : one exempts theproperty of the 
United States, and the other, the mail. Hie act oT Pennsylvania 
speaks of ^^ vcducles carrying die United States mail," thus recc^^nis- 
ing the mail as belongmg to the government The mail is one o£ 
the most valuable branches of the government; connecting itsdf 
closely with the business of the people, and a proportipn of the mail 
matter is absolutely the pi-operty of the government, being communi- 
cations from one public officer to another. The mail is fenced round 
with protection, by law, from robbery and depredation, and the bass 
and locks are pubhc property. The act of Congress of 1 831 , dut>u£^ 
out, recognises the mail as being the property of the government 
Unless passengers were to ^ in the poaches, there would have to be 
a guard ; but they are the oest guard. The contracts require, that 
sts^;es shall be suitable for passengers. The right of altering the 
contract is always reserved to the government, and although there 
may be three lines now instead of one formerly, yet the letter of the 
postmaster-general to the ^vemor of Penn^lvania shows, that the 
mail could not now be earned in one coach. If there can be a toll 
imposed upon carriages when there are passengers, why not also 
when there are no passengers ? and such an amount taxed 
as will prevent the running of the mail. A question of power cannot 
be decided by the greater or lesser exercise of it: 4 Wheat 327, 
361,. 387, 417, 426, 429. 

JV^on, attorney-general, on the same side. 

The question lies in a narrow compass. It is, whether there is a 
contractDetweeii the United States on the one hand and Pennsylvania 
on the other ; and if so, what is its nature ? The act of 4th April, 
1831, is the foundation of the compact. It proposed to provide for 
&e repair of the road. Commisaoners were appointed on condition, 
that me United States would repair the road and, erect gates. The 
act was to have no force until Congress assented to it^ and apph>- 
priated money for toll-houses and ^es. Here is a proposal, ah 
offer for a contract The 10th section says, that it shall not go into 
operation until an appropriation is made, but there is nothio^ said 
about ceding juris^ction. Congress, in 1832, assented, on condi-* 
tion that Pennsylvama would execute her part of the contract and 
keep &e road m repair. The power of CDngress over internal im- 
provements is not drawn into the case at aU.. The United States 
have a ri^t to purchase the privily of transportkig the mail, over 


Bearigkt «. Stokes et aL 

any road. If Pennqrlvannt had said, give tis $760,000^ and your 
ma3 shall pass, free, would not such a contract hare been wkhin the 
competency of the parties to make, and have been good ? The con- 
sideration was a Taluable one to Pennsylvania. She cannot now 
deny the right ol die United States to inake the road, because she 
accepted the cession, and actually holds title under the United 
States. 9 La « : U. S. 232, 233, act of surrender by United States. 

There was apower reserved to Pennsylvapia tochan^ the ref- 
lations of the road, provided the comptuct was not infrmged. Sut 
tiie act of 1836 asserts the antfaority of the lesislature to vaiy the 
origbal terms, and levies half tolls. It cannot be said by the other 
side, diat the two acts do not clash with each other, because the 
legidature says thqr do. That the mail is property is too plain to 
be an;ued. 

WhdX were the circumstances under which the acts were passed ? 
The road had been in use for twelve or fourteen years before 1831. 
The mail was carried in stages, without pajring any toll, in the same 
description of vehicle as that now taxed. There never was any 
other species of property of the United States carried on it ; at least, 
the reconl does not show that there was. Was it a lure, then, to 
ibe government to spend $800,000 for the privilege of pasangpro- 

Krty free whichit bad never transported on the road, and was not 
:ely to transport? •-* 

It has been said, that because Ohio was more specific in her le- 
mlation, therefore Penn^lvania did not mean to exempt the mail. 
Sut of what authority is tnc act of another state ? The object was 
the same wit!: them all. * 

We have the opinion of the executive and judicial departments 
of Pennsylvania, 2 Watts & Sergeant, 1^3. 

But suppose ibere was no compact. Thf act of 1836 would still 
have been invalid. It is not a ^neral law to collect tolls, but di- 
rected specificaHy against the mail. The property of the contractors 
is, no doubt, subject to taxation by a state ; but a law levelled ex- 
clusively af;ainst the mail is a different. thin^. A power to destroy 
the means miplies a powdr to destroy the thmg itself. The case of 
McCulloch V. Maryland. 4 Wheaton, was an attempt to tax the 
means by which the bank carried on its operations. In Weston v. 
City of Charleston, 2 Peters, 449, the same principle was established. 
It was held that loans were means to execute the powers of Con* 
gress, and to tax the stock would impair the means. So, 15 Peters^ 
435, 448. It has been said, that if these tolls aire not collected die 
road win go out of repair. But can this be so? The whole amount 
charged is only $1200 a year, upon a road on which $800,000 were 
ex]>ended as late as 1835, built at the request of Pennsyhimia, and 
which she pledged her faith to keep in repair. It has been said also 
that the privilege of passing free may be abused ; that 100 stages 
may be run upon the road. But the record presents no such ctse. 


Bearight «. Stokes et aL 

The stages are iDsed bona fide by the contractors under their.contract 
with the postmaster-general. 

Walker y for plaintifls in error, in reply, and conclusion. 

If the court shall be ag»nst us on the interpretation of the oom- 
pacty we shall have to invite their attention to tiie following grave 

1. That the federal government has no power, under the Constitu- 
tion, to construct a road witUn the limits of a state, 

2. That the consent of a single state cannot enlarge 'die powers of 
the federal government, even within its own limits, and much less 
within the limits of another state. 

3. That ^e two per cent fund referred to in the several acts of 
appropriation, was exhausted before the road reached the Pennsyt* 

4. Thattheconsentof Pennsylvania, under the law of 9th of AprDy 
1807, was based upon the appropriatien of the two per cent, fund, 
and ttiat alone, to ttie construction of said road widiin her limits. 

6. That Congress possessed no power, under the Constitution, to 
collect toll upon said road in the state of Penn^lvania. 

6. That the state of Pennsylvania had iurismction of said road, 
and the right to collect toll, and possessed this power as one of the 
ridits not delegated in forming^ the Constitution of the \mion,'and 
wich could only be relinquidied by an amendment of the Consti- 

7. That the right to collect toll in this case veas never surrendered . 
by the state of Pennsylvania. 

The power of the federal government to construct roads has been 
abandoned for eight years past, llie authority to establish postr 
roads, is merely to designate the road from point to point ; and if the. 
United States have no constitutional po^er, an act of one of the 
states cannot confer it. If there was no power to make the road, 
there was none to repair it or collect tolls; and an agreement to re- 
pair it was null and void, as being repugnant <to the: Constilutioi^ 
.The jurisdiction which Pennsylvania had, originally, over the soQ of 
the road, was never surrendered; and if it had been, her legidttuie 
had na power to surrender it. 

The speech of Mr. Burnet dves the history of this matter. The 
road was going to ruin, and Congress refused to appibpriate. The 
friends of the road in Ohio obtained the passage ofan act there. It 
was a favourite m that state, but not in Pennsylvania. The ktter 
state had commenced- a large system of improvement from Phikidel- 
phia to Pittsburg,, and knew that this Cumberland road would draw 
off the travel irom her own works. The law of Pomsylvania was^ 
tiierefore, dissimilar fix>m that of Ohio. Ohio did not require ttie 
road to be put in repair before accepting the ^cession, but rennsvl- 
yania did. There are many other important difeences between mt 

JANUARY TERBI, 1^46. 161 

Bearight «. Stokes et aL 

twah^ Congress hastened to accept the Ohio Iz^v before Penn- 
sylvania acted. What reason is there to think that PennsvlTania in- 
tended to imitate Ohio ? ' There is none. If so, why was the phrase- 
oWy changed ? Some words must have been intention^y omitted^ 
andyet this court is now asked to insert them, to change places with 
die legislature at Harrisbuig, and do what it refused to do. Al- 
diou^, in general, the mail may be property, can it be considered 
so here, where there is a special exclusio;i) £very word of a sta- 
tute must receive a meaning, unless the court are compelled to con- 
sider some words ^onymous. In the Ohio law, the words ^^ mail" 
and ^^ property" are not synonymous: it exempts a ^^.stage or coach, 
canrin^ the mail,." and a ^^ wagon or banriage, canying4iproperty of 
die fjmted States;" referring to different yemcles, carrying different 
diings. The *^ nuul" is never carried in wagons. The goyemment 
recently brought a laree copper rock from Lake Superior. This 
could not haye passed Sree unless under die head of property. Ohio 
had, therefore,, two distinctprovisions in her law; .Pennsylvania 
adopted only one of them. The toll on ^^ stages" included the coach 
carrying the mail, in words aad letters. The Ohio law asked her to 
exempt die mail, but she refused. 

But does ^^ property" include the mail? Does a departmoit, 
when making a schedule of its property, include the contents of the 
mail.' The united States is only a common carrier, and paid as 
such. If not, then postage is exacted for cargring the property of 
the United State?. It is me property of the persons interested ; they 
can recover it at law. It has been said that because a common car- 
rier has a special property in what he carries, therefore the United 
States have a property in the mail. But this technical principle was 
unknown to the farmers and mechanics who passed the act of llBSl. 
Again, what is the meaning of ^Maden?" it is the bulk of the load. 
If an officer of the United States puts a single box in a wagon, and 
die rest of the load is private property, eould it be said with any 
propriety diat the wac^on was "laden" with the property of the go- 
vernment? To Justi^ this, other words must be interpolated into 
die law, viz., " m whole or in part" But-they are not4here. If 
"property" means the "mail," then the section must read, ".laden 
with tl)e mail ;" and if this be so, a single mail-bag will not exempt 
die coach from tolls. If the contractors had a. steam-wagon cpnyey- 
in^ 100 passengers kad a small mail-bag, would they all go free? 
It IS said that we attack the mail, but we do not llie government 
pays turnpike gates eyeiywher^ else. When companies make roads 
with their own money, they allow the government to use them on 
the same terms .with eyery one else. If it can seize upon roads, the 
postmaster-general would soon ^t rid of all difficulties with rail-road 
companies. But we deny the nght. 

But upon whom does the tax fall in this case? The record ^ys 
that stages conyeying nothing but the mail pass free. It is then 

VoL^.— 21 o2 


Sebright v. Stokes et aL 

the passengers who pay the tax. The contractors must increase die 
fere. The government is not a party upon the record, and the post- 
master-general has no business to come here by counsel. The 
whole difficulty has arisen from an eflbrt.of contractors to draw cus- 
tom to their own line fipom roads whiere tolls are chargedr All op- 
position stages, too, must be broken down on diis road, because 
those sta^s wUl be charged with toll. 

It is said that passengers are a guard to the mail. They do not 
consider themselves as paying their passage money for the privilege 
of yarding the mail. But, upon this theory^ the contractors ou^ 
to be bound to carry some always; whereas the stages frequently 
run without any passengers. 

Pennsylvania has been charged with violating her faith. But how 
can this be? She derives no revenue from the road; the whole of 
the tolls are expended upon repairs, and that too in a case where her 
own pecuniary interests suffer, because the travel is drawn away 
from ner own roads. The true interest of the United States is to 
maintain our view of the case; because, if tolls enough are not col- 
lected to keep the road in repair, it must go to ruin, and ihen the 
contractors will charge a higher price for carrying the mail, even at 
a slower pace. 

The act of l836vis only declaratory of that of 1831, and not in- 
consistent with it. . The latter exempts wagons when laden with the 
property of the United States in the whole ; and the former propor- 
tions the exemption to the amount of property thus owned. The 
imposition of half-toll is, in fact, a privilege granted^ The whole 
of the Pennsylvania legislation is one continueo? series, instead of be- 
ing separate and inconsistent acts. The law of 1831 accept^ the 
rojwl, when it should be put in repair and toll-houses erectea. The 
act of Congress, making the appropriation, did not pass till 1834 ; 
and in Apnl, 1835, Pennsylvania accepted the surrender, aind ap- 
pointed commissioners. Between that time and die first of January, 
1836, gates were erected, and the act of 1836, now \mder con- 
sideration, was passed without any loss of time. The case in Watts 
& Sergeant has been referred to, but here is a certified copy of the 
record, diowing that, from 1836 to 1839, bills were made out Quar- 
terly, Before tiie act of 1836, all the steges, except the fest line, 
paid tolls. These, were therefore collected under the act of 1831. 
Tliere were only two lines, and the commisiBioners a^ed to excuse 
one, on condition that the other paid* This was huf-toll, and was 
the foundation of the law. 

Mr. Chief Justice TANEY delivered tiie opinion of the court 
The miestion in this case is, whether the state of .Pennsylvania 
can lawiully impose a toll on carriages empWed in transpoitmg the 
mail of the United States over that part of the Cumberland road 
which passes through the territory of ^t stale .^ 

JANUARY TERM, 1846. 1« 

Bearight «. 8toke9 et aL 

The dilute has arisen from an act of die legislature of Pennsyl- 
vania, passed in 1836, wnereby wagons, carriages , stages, and omer 
modes of conveyance, canning the United States mail, with passen- 
gers or the goodbs of other persons, are chared with half tiie toll 
levied upon other vehicles of Ihe like description. The plaintiff in 
error is Ihe commissioner and superintendent of the road, appointed 
by the state. The defendants are contractors for carrying the mail, 
and they insist that their carriages, when engaged in this service, 
are entitled to pass along the road £ree from toll, althou^ they are 
conveying passengers and their baggage at the same time. In order 
to obtain the opinion of this court upon the subject, an abiicable 
action was instituted by the pbintiff in the Circuit Court of the 
United States for the western district of Pennsylvania, for the tolls 
directed to be collected by the law above mentioned, and the facts 
in th^ case stated by consent* The judgment of the Circuit Court 
was against the plaintiff, and it i^ now brouj^t here for revision 
by wnt of error. 

The Cumberland road has been so often the subject of public 
discussion, and the circumstances under whicH it was constructed 
and afterwards surrendered to the several sta^ through which it 
passes, are so generally known, that we shall forbear to state them 
rarther than may be necessary for the purpose of Rowing the cha- 
racter (^ the present controvert, tod explaining the principles upon 
w)uch the opinion of this court is founded. 

The Toad in question is the principal line of* communication be- 
tween the seat of government and the great valley of the Missis- 
sippi It passes mrough Marylsmd,. Pennsylvania, Virginia, and 
Onio,.and was constructed at an immense expense by me United 
States, under the authority of different and successive acts of Con- 
gress : the states contributing nothing either to the making of the 
road or to the purchase of land oyer which it passes. 'Diey did 
nothing more than enact laws authorizing the Umted States to con- 
struct Sie road within their respective limits, and to obtain the land 
necessary for that puipose from the individual proprietors upon the 
payment of its value. 

After the road had thus been made — although it was constiiicted 
with the utmost 'care, sparing' no efforts to make it durable — it was 
still found to be incapable of withstandmg the wear and tear pro- 
duced by the number of carriages continually passing .oVer it, en- 
gagisd in transporting passengers, or heavily laden wim agricultural 
produce or merchandise ; and that either a very great expense must 
DC annually incurred in repairs, of the road, in a short time, would 
be entirely broken up and become unfit for use. As no permanent 
provision had been made for these repairs, applications were made 
to Congress for the necessary lunds ; and as these demands upon 
the public treasury unavoidably increased, as the road was extended 
or longer in use, they naturally produced a strong feeling of dissat- 


Searight «. 8toket et al. 

is&etion and opposition in those portions of the union Tdiich had no 
inunediate interest in the road ; and the constitutional power of 
'Congress to make these appropriations was also eamestlji and upon 
many applications, contested by many of the eminent statesmen of 
the country. It therefore became evident,' that unless some other 
means than appropriations from the public treasuiy could be derised, 
a WQrk which everjr one felt to be a great public conTenience, in 
which a large portion of the union was directly and deeply inte- 
rested, and- which had been constructed at so much cost^ must soon 
become a total ruin. 

In this condition of things, the state of Ohio, oh the 4th of Feb- 
ruary, 1831, passed an act, proposing, with the assent of Con^ss, 
to take under its care immediately the portion of the road withm its 
limits which was then finished, and the residue from tmie to time aa 
different parts of it should be completed, and to erect toll Rates 
thereon, iod to apply the tolls to the repair and presenrition of the 
road, specifying in the law the tolls it proposed to demand, and coxb* 
taining a proviso in rel^on to the property of the United States, 
and to persons in its service, in the following words : << That no 
toll diall be received or collected for the tiassage of lmy>8tage or 
coach conveying the United States mail, or norses bearing the samei 
or any wagon or carriage laden -with the properhr of the United 
States, or aity cavalry qt other troops, arms, or miutaiy stores, be- 
longing to the same, or to any of the states comprising this union, 
or any person or persons on duty in the military service bf the Uniteo, 
States, or d[ the militia of any of the states.'^ On the 2d of March, 
in tiie same year, Congress passed a law assenting to this act of 
Ohio, which is recited at" large in the act of Congress, with idl its 
provisions and stipulations. 

The measure proposed by the sti^e of. Ohio seems to have been 
received with general approbation ; and on the 4th of April, 1831^ 
. Pcsmsylvania, about two months after the passage of the law of 
Ohio, parsed an act similar in its principles, but varying firom it in 
some respects on account of the cufferent condition of the road in 
the two states. In Ohio it was new and unworn, and therefore 
needed no repair ; while in Pennsylvania, where it had been in use 
£» several years, it Was in a state of great dilapidation. W0e 
proposing, therefore, to take it under the care of the state, and to 
charge the tolls specified in the act, it annexed a condition tiiai the 
United States should first put so much of it as passed throu^ that 
state in ^ood repair, and an appropriation be also made by Congress 
for erectmg toll-houses and toll-gates upon it. The clause in rela- 
tion to the passage ot the property of the United States over die 
road/ also varies firom the language of the; Ohio law, and is in the 
following words : ^^ That no toll shall be received or collected for 
the passage of any wagon, or carriage laden with the property of 


Searight v. Stokei et aL 

the United Sbtes, or any cannon or military stores beloxijg;inff to the 
United States, or to any of the states composin£| this union. ' 

The example of Pennsylvania was fouowed by Maryland and 
Yirginia, at ^e next succeeding sessions of their respectiTe legis- 
latures : the law of Maifyland being passed on the 2od of January, 
1832, and the Virginia law on the 7tb of February following. The 

Soviso in relation to the property of the United States, in the 
airland act, b precisely the same with that*of Pennsylvania, and 
would seem to have been copied from it, while the proviso in ti^e 
Vir^;inia law, iq>on this subject, follows almost literally the law of 

With these several acts of Assembly before them, Congress, on 
the 3d of July, 1832, passed a law declaring the assent of the 
United States to the laws of Pennsylvania and Maryland, to remain 
in force during the pleasure of Congress ; and the sum of $150,000 
was appropriated to repair the road east of the Ohio liver, and to 
make the oth^r needful improvements required b]^ the laws of these, 
two states. No menticm is made of Virginia in tluij.act of Coneress, 
because in her law the previous reparation of the road, and Uie 
erection of toll-houses and gates, at the expense of the United 
States, was not in express terms made the condition upon which 
die accepted the surrender of the road ; but the assent- of Congress 
was afterwards given to her law by the act of March 2d, 1833, 
which, like the contract with the two other states, was to remain in 
force during the pleasure of Congress. 

The sum appropriated, as above mentioned, was, however, found 
bsufficient for the purposes for which it was intended, and by an 
act of Jupe 24th, 1834, the further sum of $300,000 was ^pro- 
priated ; and this act states the appropriation to be made for die, 
entire completion of the road east of the Ohio, and other needM 
improvements, to carry into effect the laws of Pennsylvania, Manr- 
land, and Virgbia, each of which is particularly referred to in me 
act of Congress; and further directs diat as fiu* as that sum is ex- 
pended, or so much of it as shall be necessary, ihe road should be 
ffiirrendered to the states respectively throu^ which it pas^* 
But so greatly had the rqad become dilapidated, that even tihese 
large sums were found inadequate to place it in a proper condition, 
and by the act of March 3d, 1835, the further sum of $346,188^. 
was appropriated ; but this law directed that no part ofi it should 
be paid or expended until the three states should ren^ectively accept 
die surrender ; and that the United States *^ should not thereafter 
be subject to any expense in relation to the said road." Under this 
act of Congress the surrender was accordingly accepted, in l836, 
and the money applied as directed by tlie act of Congress, and^rom 
that time the road has been in the. possession of and under the -con- 
trol of the several states, with tolJ-^tes upou it. This is ifae hisf* 
tory of the road, and of die legblation of Congress and the statM 


I ''« .] ■ ■ ■ ■ I III 

Searight «. Stokes et aL 

upon that subject, (so far as it is necessary now to state it,) up to 
^e tirac when the road passed into tl^ hands of the states. We 
shall have occasion hereafter to speak more particularly of the act 
of Congress last mentioned, because it is the act under which the 
states finally took possession of the road. 

When the new arrangement first went into operation no toll was 
charged in any of the states upon carriages transporting the maO of 
the United States ; and no loll unon such carriage^.has ever yet be^ 
claimed in Ohio, Maryland, or Virginia. Biit on ihe 13th of June, 
1836, the state of Pennsylvania passed a law, declaring that car- 
riages, &c., carrying the property of the Uiuted States or of a state, 
which were exempted from the pajTiient of toll by the act of 1831. 
should tiiereafter be exempted only in proportion to Ibt amount of 
property in such parriage belongmg to the United States or a state, 
and, ^^ that in all cases of wagons, carriages, stages, or other modes 
of conveyance, carrying the United States mail, with passengers or 
goods, such wagon, stage, or other mode of conveyance shall pay 
half-toll upon such modes of conveyance.*' And we. are tow to 
inquire whether this half-toll can be imposed upon carriages carrying 
the. mail under die compact between the United States and Perm* 

It will be seen from this statement, that the constitu^onal power 
of tiic general government to construct this road is not involved in 
Ae case before us ; nor is this court called upon to express any opi- 
nion upon that subject ; nor to inquire what were iht ri^ts of the 
United States in the road previous to the compacts liereiubefore 
mentioned. The load had in fact been made at the eypense of the 

Sencral government. It was the great line of cormection between 
le seat of government and the western states and terrilories, afiTord- 
ing a convenient and safe channel for the conveyance of the mails, 
and enabling the government thereby to communicate more prompt- 
ly with its numerous officers and agents in tliat part of the United 
States west of the Alleghany mountains, llie object of the coni- 

Kcts was to preserve- the road for the purposes for which it had 
en made. The right of the several states to enter into these agree- 
ments w8l hardly be questioned by any one. A state may undoubt- 
edly grant to an mdfvidual or a<X)q^orati6n a ri^ of way Uirough its 
temtory upoA such tenhs and conditions as it thinks proper; and 
we see no reason why it may not deal in like manner with the United 
States, when the latter have the ppwer to enter into the contract. 
Neither do we see any just ground for questioning the power of 
Congress. TheXJonstitlition gives'^ it the power to establish post- 
offices and post-roads ; and charged, as it thus is, with the transpor- 
tation of the mails, it would hartJly have performed its duty to the 
country, if it had sufiered this important line of communication to 
&11 into utter ruin, and sought out, as it must have dpne, some cir- 
euitoiii or tardy and difficu&route, when by the immediate payment 

JAJ^UARY TERM, 1845. 167 

8ei^right «• Btokes et aL 

of an equivalent it obtained in perpetuity the means t>fperfonninff 
efficiently a great public du^, which the Constitution has imposed 
upon the general government. Large as the sum was which it paid 
for repairs, it was evidently a wise economy to make the expendi- 
ture. It secured this convenient and important road for its mails, 
where the cost of transporting them is comparatively moderate, in- 
stead of being compelled to incur a far heavier annual expense, as 
they must have done, if, Sy the destruction of this road, they had 
been forced upcm routes more circuitous or difficult, when much 
Mriier charges must have been demanded by the contractors. Cer- 
tamly, neidier Ohio, nor Pennsylvania, nor Maryland, nor Virginia, 
appear from theb laws to have doubted their own power or the 
power of Congress. But we do not understand, 'that Pennsylvania 
now upon any ground disputes the validity of the compact or denies 
her obligation to perform it; on the contrary, she asserts her readi- 
ness to fulfil it in all its parts, according to its true meaning ; but 
denies the construction placed upon it by the United States. It is 
to that part of the case, therefore, that it becomes the duty of the 
court to turn its particular attention. 

It is true, that in the law of Pennsylvania, and of M^land also, 
assented to by Congress, the exemption of carriages engaged in car- 
rying the mail is not so clearly and specifically providecf for as in die 
laws of Ohio and Vii^inia. But in interpreting these contracts the 
character of the parties, the relation in which they stand to one 
another, and the objects they evidendy had in view, must all be con- 
sidered. And w^ should hardly carry out their true meaning and 
intention if we treated the contract as one between individuals, bar- 
graining with each other with adverse interests, and should apply to 
It the same strict and technical rules of construction that are appro* 
priate to cases of diat description. This, on the contrary, is a con- 
tract between two governments deeply concerned in the welfare of 
eadi other ; whose dearest interests and happiness are closely and 
inseparably bound up together, and where an mjury to one cannot 
bil to be felt by the other. Pennsylvania, most undoubtedly, was 
anxious to give to the general government every aid and facility, in 
its power, consistent wim justice to its own citizens, and the govern* 
ment of the United States was actuated by a like spirit. 

This was the character of the parties and the relation in which 
they stood. Besides, a considerable number of the citizens of the 
state had a direct interest in the preservation of the road ; and the 
state had manifested its sense of the importance of the work by the 
act of Assembly of 1807, which authorized die construction of the 
road within its limits ; and ag^ in the resolution passed in 1828, 
by which it proposed tb confer upon Congress the power of erecting 
gates and charging toll. Yet the only value of. this road to the 
general government worth, considering is for the transportation of 
w- mails ; and in :tliat point of view it is far more important than 


Bearight v. Stokes et al. 

any other post-road in the union. Occasionally, indeed, arms or 
miiitaiy stores may be transported over it ; and sometimes a portion 
of the militaiY force may pass along it. But these occasions for its^ 
use, especially in time of peace, but rarely occur ; the daily and 
necessaiy use of the road by the United States is as a post-road, 
formmg ah almost indispensable link in the chain of communication 
fipom the seat of government to its western bordets. 

Now, as this was well known to the parties, can it be supposed 
that when Pennsylvania, by her act of 1831, proposed to take the 
road, and keep it in repair from the tolls coUpcted upon it, and ex- 
empted from toll carriages laden with the property of the United 
States, she yet intended to charge it upon the mails ? That in re^ 
turn for the large expenditure she required to be made, before she 
would receive the road, she confined her exemption to matters of no 
importance,, and reserved the right to tax all that was of real value ? 
And when Confess assented to. the proposition, and incurred such 
heavy expenses for repairs, did Ihey mean to leave their mails throu^^ 
Maryland and Penn^lvania still liable to the toll out of which me 
road was to be kept m repair ? Upon this point the act of Congress 
of March 3d, 1835, is entitled to great consideration. For it was 
under this law that the states finally to<5k possession of the road and 
proceeded to collect the tolls. By so domg they assented to all the 
provisions contained in this act of Congress ; ana one of them is an 
enress condition, that the United States ^ould not thereafter be 
subject to any expense in relation to the road. Yet imder the argu* 
ment, the expenses of the road are to be defrayed oi^t of the tolls 
collected upon it. And if the mails in Pennsr^lvania and Maryland 
may be charged, it will be found, that instead of the entu« exemp* 
tion, for which Ihe United States so expressly stipulated, and to 
\vhich Pennsylvania a^eed, a very large proportion of the expenses 
of repair will be annuSly thrown upon them. We do not think ti^at 
either party could have intended, when the contract was made, to 
burden the United States in this indirect way for the cost of repairs. 
So far as the general government is concerned, it might as well be 
paid direcfly from the Treasury. For nobody, we suppose, will 
doubt that mis toll, although in form it is paid by the contractors, is 
in bet paid by the Post-office Department. It is not a contingent 
expense, which may or may not be incurred, and about whidi a 
contractor may speculate ; but a certain and fixed amount, for which 
he must provide, and which, therefore, in his bid foy the contract, he 
must add to the sum he would be otherwise willing to take. It is 
of no consequence to the United States whether charges for repairs 
are cast upon it throu^ its Treasury or Post-office Department. In 
either case it is not free from expense in relation to the road, accord- 
ing to the compact upon which it ^vas surrendered to and accfepted 
by the states. 

Neither do tiie words of the law of Pennsylvania of 1831 require 

JANUARY TERM, 1846. 160 

SearigM v. Stokes et aL 

a difti^t construction. Tbe United States have unquestionably a 
prcqpeity in the mails. They are not mere common carriers, but a 
^emment, performing a m^ official dutjr ip holding and guard* 
tog its oim property as well as that of its citizens committed to its 
care ; for a Very large portion of the letters and packages conveyed 
on ttos road, eq>ecimly during Ae session of Congress, consists of 
communications to or from the officers of the executive departmerrt, 
or members of the legislature, on public service or in relation to mat- 
ters of public concern; Nor can the word laden be construed to 
mttmJvUy laden, for that would in ctfect destroy the whole value 
of the exemption, and compel the United iStates to pay a toll even 
on its militarv stores and other property, unless every wagon or 
carriage enquoyed in transportbg it was as heavily laden as it 
could conveniently bear. We thimc that a carriage, whenever it is 
can^ring the maU, is laden with the propertv ot the United States 
witmn tbe true meaning of die ODmpact: and di^t the act of Con- 
gress of whidi we have spoken, and to ifhich the state assented, 
must be taken in connection with the state law of 1831 in expound- 
ing this agreement Consequently, the half-toU imposed by the 
act of 1836 cannot be recovered. 

The acts of assembly of Ohio and Virginia have been relied on 
m the argtunent by the plaintiff in error; and it has been urged 
that, inasmuch as the. laws of these states, in so many woras, 
exempt carriages carrying the mail, of the United States, the omis- 
sion of these Words in the law in question shows that Pennsylvania 
intended to reserve the right to charge them with toll. And it is 
moreover insisted that, as the law of Ohio which contains this pro- 
vision parsed some time before the act of Pennsylvania, it ought to 
be presumed that the law of the latter was drawn and passea with 
a full knowledge of what had been done by the former, and that the 
stipulation in mvour of the mail was desi^edly and intentionally 
omitted, because the state of Pennsylvania meant to reserve tbe 
right to charge it. 

Tbe court think otherwise. Even if the law of Ohio is supposed 
to have been before die legislature of Pennsylvania, it does not by 
any ineans follow that die omission of some of its words would 
justify the inference urged in the argument, where die words 
retained, by their fidr construction, convey the same meaning. 
Indeed, if it appeared that the Ohio law was in fieu^t before the 
legislature of Pennsylvania irtien it framed its own act upon the 
subject, it would rather seem^ to lead to a contrary conclusion. For 
it cannot be supp<Nied that in the compact which the United Stetes 
was about to Ibnn with four >different states, and when the agree- 
ment with one would .have been of no value without the omerSi 
Pennavlvania would have desired or asl^ for any privileges to hei^ 
adf which were not extended to the other states, nor that she would 
be less anxious to give every faciUbr in her power to the genial 

Vol. in.— 22 P 


Bearigbt v. Stokes ct al. 

goyernment \^hen carrying out "Arough her territory the important 
and necessary operations of the Post-office Department. Nor could 
she have supposed that Congress would give privileges to one state 
which were denied to others; and, after haying done equal justice 
to all in the repair and preparation of the roaa wherever needed, 
make different contracts with the different states ; and, while it bar- 
gained for the exemption of its mails in one or more of thenS, con* 
sent to pay toll in another. The fact that they are cleariy and 
explicitly exempted from toll in Ohio and Virginia is a strong argu- 
ment to show that it was intended to exempt them in all, and that 
the compacts with Pennsylvania and Maryland were understood 
and believed to mean the same thing, and to accomplish the same 
objects. And this conclusion is greatly strengthened by the fact 
that Maryland, where the words of the law are precisely the same 
with those of Pennsylvania, has never claimed the right to exact 
toll from carriages carrymff the mail ; nor did Pennsylvania claim 
it in the first instance, and they were always allowed to pass free 
until the act of 1836. Indeed tl)at law itself appears to recognise 
the right of the mail and other property of die United States to go 
free, and the imposition of only half-toll would seem to imply that 
the state intended to reach other objects, and did not desire to lay 
the burden upon any thing that properly belonged to the United 
States. And so far as^wexan judge from its legislation,. Pennsyl- 
vania has never to this day placed any other construction upon its 
compact ^an the one we have given, and has never desired to 
depart from it. 

If we are right in this view of the subject, the error consists in 
the mode by which the state endeavoured to attain its object. Un- 
questionably the exemption of carriages bearing the mail is no 
exemption of any other property conveyed in the same vehicle, nor 
of any person travelhn^ in it, unless he is in the service of the 
United States, and passing along in pursuance of orders from the 

§ roper authority. Upon all other persons, although travelling in 
le mail-stage, and upon their baggage or any other property, 
although conveyed in the same carriage with the mail, the state of 
Pennsylvania may lawfully collect the same toll that she charges 
either upon passengers or similar property in other vehicles. If 
the state haa made this road hei-self, and had nOt entered into 
any compact upon the subject with the United States, she might 
undoubtedly have erected toll-gates thereon, and if the United 
States afterwards adopted it as a post^road, the carriages engaged 
in their service in transporting the mail, or otherwise, would have 
been liable to pay the same charges that were imposed by the state 
on other vehicles of the same kind. And as any rights which the 
United States might be supposed to have acquired in this road have 
been surrendereuto the state, the power of the Jatter is as extensive 
in collecting toll as if tbe road had been made by herself, except 

JANUARY TERM, 1846. 171 

Sea right v» Stokes et aL 

in SO &r as she is restricted by her compact ; and that compact 
does noUiing more than exempt the carriages laden with the pro- 
perty of the United States, and the persons and baggage of those 
wlio are engaged in their service. Toll may therefore be imposed 
upon every thing else in any manner passing over the road ; restrict- 
ing, however, the application of the money collected to the repair 
of the road, and to the salaries and compensation of the persons 
employed by the state in that duty. 

It has been strongly pressed in the argument, that the construc- 
tion placed upon the compact by the court would enable the con- 
tractors to drive every other line of stages from the road, by dividing 
the mail-bags among a multitude of carriages, e^ch of which would 
be entitled to pass toll free, ^hile the rival carriages would be com- 
pelled to pay it. And that by this means the contractors for car- 
ly'mg the mail would in effect obtain a monopoly in the convey* 
ance of. passengers throughout the entire length of the road, greatly 
injurious to the public, by lessening that disposition to accommodate 
which competition is sure to produce, and enhancing the cost of 
travelling beyond the limits of a fair compensation; 

The answer to this argument is, that under the agreement they 
have made, according to its just import, the United States cannot 
claim an exemption for more carriages than &re necessaiy for the 
safe, speedy, and convenient conveyance of the mail. And if mea- 
sures such as are suggested wer6 adopted by the contractors, it would 
be a violation of the compact The postmaster-general has unques- 
tionably the ri^ht to designate not only the character and description 
of the vehicle m which the mail is to be carried, but also the number 
of carriages to be employed on every post-road. And it can scarce- 
ly, we think, be supposed, that any one filling that high office, and 
acting on behalf of the United States, would suffer the true spirit and 
meaning of the contract with the state to be violated or evaded by 
any contractor acting under the authority of his department. But 
undoubtedly, if such a case should ever occur, the contract, accord- 
ing to its true construction, could be enforced by the state in the 
courts of justice ; and every, carriage beyond the^umber reasonably 
sufficient for the safe, speedy, and convenient transportation of the 
mail would be liable to the toll fanposed upon similar vehicles owned 
by other individuals. In a case where an error in the post might be 
60 injurious to the public, it would certainly be necessary that the 
abuse shoidd be clearly shown before the remedy was apphed. But 
there can be no doubt, that the compact in question, in the case suih 
posed, would not shield the contractor, and upon a case properly 
made out and established, it would be the Tluty of a court of justice 
to enforce &e payment of the tolls. No such &ct, however, appeus 
or is suggested in the case before us, and tke jud^ent of the .CiN 
cuit Court is therefore affirmed. 


8earight v. Stokes et aK 

Mr. Justice McLEAN. 

I dissent from the opinion of the court And as the caseinToIves 
hi^ principles and, to some extent, the action and powers of a 
sovereign state, I will express* my opinion. 

This was an amicable action to try whether the defendants, who 
are contractors for the transportation of the mail on the Cumberland 
road, are liable, under the laws of Pennsylvania, to pay tolj for 
sti^s in which the mail of the United States is conveyed. 

This road was constructed by the federal government through the 
state of Peimsylvania, with its consent. Whether this power was 
thus constitutionally exercised, is an inquiry not necessarily involved 
in the decision of this case. The road was made, and for some 
years it was occasionally repaired by appropriations from the Trea- 
sury of the United States. These appropriations were made with 
reluctance at all times, and sometimes were defeated. This, as a 
permanent system of keeping the road in repair, was, of necessity^ 
abandonied ; and, with the assent of Pennsylvania, Congress passed 
• a bill' to construct toll-gates and impose a tax on those who used the 
road. This bill was vetoed by the President, on the ground that 
Congress had no cbnstitutio? .at powerto pass it. The plan was theft 
adopted to cede the road, on certain conditions, to the states through 
which it had been established. 

On the 4th of April, 1831, Pennsylvsttua passed "An act for the 
preservation of the Cumberland road.'* 

By'the 1st section it was provided, that as s6on as the consent of 
the government of the United States shall have been obtained, cer- 
tain commissioners, who were named, were to be appointed, whose 
duties in regard to the road were specially defined. The 2d section 
enacted, that to keep so much of the road in repair as lies in the state 
of Pennsylvania, '^d pay the expense of collection, &c., the commis- 
sioners should cause six toll-gates to be erected, and certain rates 
of toll were established. To this section there was a proviso, ^^ that 
no toll shall be received or collected for the passage of any wagon 
or carriage laden with the property of the United States, or any can- 
non or niilitar^ stores belonmng to the United States or to any of the 
states composing the union.^' 

By the 4th section the tolls were to be applied, after paying ex^ 
penses of collection^ &c., to the repairs of the road, the commission- 
. ers having power to increase them, provided they shaU not exceed 
the rates of toll on the Harrisburs; and Pittsburg road. The last 
section provided tiiat the toll should not be altered below or above 
a sum necessary to defray the expenses incident to the prc^rvation 
and repair of said road, &c., and also, "that no changfe, alteration, or 
amendment shaH' ever be adopted, that will in any wise defeat or af- 
fect the true intent tmd meaning of this act." 

By the 10th section of the abbve act it was declared to have no 
effect until Congress should assent to the same, " and untifso much 


Searight v, Stokes et al. 

of the said road as passes through the state of Pennsylyania be first 

{>ut m a good state of repair, and an appropriation madelyy Congress 
or erecting toll-houses and toll-gates thereon, to be expended under 
the authetity of the commissioners appointed by this act." 

By their act of the 24(h of June, 1834, Congress appropriated 
$3(K),000 to repair the Cumberland road east of the Ohio river, 
which referred to the above act of Pennsylvania^ and also to similar 
acts passed by Vir^nia and Maryland. And in the 4th section of 
the act it was provided, ^^ that as soon as the sum by this act appro- 
priated, or so much thereof as is necessary,' shall be expended in the 
repair of said road agreeably to the provisions of this act, the same 
shall be surrendered to the states respectiyely through vhich said 
road passes ; and the Umted States shall not thereafter be subject to 
any expense for repairing said road.'^ This surrender of the road 
was accepted by Pennsylvania, by an act of the. 1st of April, 1835. 

The aLove acts constitute the compact between the state of Penn- 
sylvania and the tmion, in regard to the surrender of this road. The 
nature «nd extent of this compact are pow to be considered. 

As before remarked j the constitutional power of Congress to con- 
struct this road is -not necessarily involved in this decision. By the 
act of Congress of the 30th of April, 1802, to authorize the people 
of Ohio to ^^form a constitution and state government," amone 
other propositions for the acceptance of the istate, it was proposed 
that "five per cent, of the net proceeds of the 'lands lying within 
the said state, sold by Congress, should be applied to the lajrin^ out 
and making public roads leading from the navigable waters filling 
intd the Adarttic, lo the Ohio, to: the said state, and through the 
same ; such roads to be laid under the authority of Congress, with 
the consent of the several states through which the roads shall pass : 
provided the stite shall agree not to tax land sold by the govern- 
ment until after ibe expiration of fire years fiom the time of such 
sale.'' ^ - 

Bjrthe 2d section of the act of the 3d March, 1803, three per 
cent, of the^above fund was placed at the disposition of the state, to 
be " applied to the laying out, ppening, and making roads, within 
the state." 

The above conditions, having been ac(fepted by Ohio, constituted 
the compact under which the Cumberland road, was ladd out and 
constructed by the authority of Congress. And of this work' it mray 
be said, however great has been the expenditure through the inex- 
perience or unfaithfulness cf miblic agents, that no public work has 
oeen so difiusive in its benefits to the country. It opened a new 
avenue of commerce between the eastern and western states. Since 
its completion, and while it wfis kept in repair, the annual transpor- 
tation of goods and travel on it saved an expense equal to no incon- 
siderable part of the cost of the road. But its cession to the states 



Searight v. Stoket et aL 

through which it was established was found necessary to raise, by 
tolls, an annual revenue for its repair. 

Whatever expenditure was incurred in the construction of this 
road beyond the two per cent reserved by the compact with Ohio, 
was amply repaid by the beneficial results of the work ; and this 
waa the main object of Congress. It was a munificent object, md 
worthy of the legislature of a great nation. 

The road was surrendered to Pennsylvania and .the other states 
ihrou^ which it had been constructed. But what was ceded to 
Pennsylvania? All the right of the United States which was not 
reserved by the compact of cession. This right may be supposed to 
arise firom the compact with Ohio ; the consent of Pennsylvania to 
the construction of the road, and the expense of it& construction, 
including the sums paid to individuals for the right of way. Hiese, 
and whatever jurisdiction over the road, if any, might be exercised 
by the United States, were surrendered to Peimsylvania. The roieid 
then must be considered as much within the jurisdiction and con- 
trol of Pennsylvania, excepting the rights reserved in the compact, 
as if it had been constructed by the funds of thai state. It is, there* 
fore, important to ascertain the extent of the rights ret^erved by the 
United States. 

In the closing para^aph of the 2d section of the act of 1831, 
above cited, it is provided, " that no toll shall be received or col- 
lected for die passage of any wagon or carriage laden with the 
property of the United States, or any cannon or military stores be- 
longing to the United States, or to any of the states composing this 
union.^' In addition to this, tliere were certain limitations imposed, 
as to the amount of tolls, on the state of Pennsylvania, whidi need 
not now be considered. 

Some light may be cast on the import of the above reservation by 
a reference to somewhat similar compacts made in regard to the 
same subject between the United States 6nd the st.ites of Ohio, 
Maryland, and Virginia. ITie Ohio act of the 2d of March, 1831, 

1>rovides, in the 4th section, " that no toll sliall be received or col- 
ected for the passage of any stage pr coa^h conveying the United 
States mail, or horses bearing the samt^, or any wagon or carriage 
laden with the property of the United States, or any cavalry or other 
troops, arms, or militaiy stores, belonging to the same, or to any of 
the states comprising this union, or any person or persons on duty 
in the militair service of the United States, or of the miUtia of any 
of the states." The 4tli section of the Maryland act of the 23d of 
January, 1832, provided, " that no tells shall b^ received or col- 
lected for the passac^e of any wagon or carriage laden with the pro- 
perty of the United States, or any caimon or muitafy stores belonging 
to the United States, or to any of the stajtes composing this union." 
In the Virginia -act of the 7th of February, 1832, it is provided, 
^* that no toll shall be received or collected S»r the passage of any 

JANUARY TLRM, 1845. 176 

Searight o. Stoket et aL 

Stage or coach conveying the United States mail, or horses bearing 
the same, or any wagon or carriage laden with property o{ the 
United States, or any cavalry wQP^other troops, army or militaiy 
stores, beloB^ng to- #rc ^«k^, or to any* of the states comprising 
this unipnji br any person or persons on duty in the military service 
of the United States, or of the militia of any of the states/' 

The reservations in the Pennsylvania and Maryland acts arc the 
same, and difier materially from those contained in the acts of Ohio 
and Virginia. In the latter acts the mail-stage is excepted, but not 
in the former. Peni^lvania and Maryland exempt from toll " anv 
wa^on or carriage Ifeden with the property of the United States ;** 
but the same exemption is contained in the Ohio and Virginia laws 
in addition to that of the mail-stage. Now, can the reservations in 
these respective acts be construed to meai) the same thing ? Is 
there no difference between the acts of Ohio and Pennsylvania ? 
Their language is different, and must not their meaning be ^ sought 
from the woms m the respective acts ? They are separate and cus- 
tinct compacts. The Ohio law was first enacted, and was, probably, 
before the legislature of Pennsylvania when their act was passed. 
But whether this be the fact or not, they were both sanctioned by 
Congress ; and the <)uestk>n is, whether both compacts are substan- 
tiaHy the same ? That the leeisldtures did not mean the same thing 
seems to me to be clear ot all dotttot. Did Congress, in acceding 
to tiiese acts, consider that they were of the same import? Such a 
presumption cannot be sustainednrithout doing' violence to the lan- 
guage of the respective acts. 

In both acts wagons laden with the property of the United States 
are exempted. In the Ohio act the mail-stage is exempted from 
toll, but not in the act of Pennsylvania. Now, is the mail-stage 
eitempted from toll by both acts or by neither ? Is not either of 
these positions equally unsustainable ? The -exemption of the mail- 
sta^e must be struck out of the Ohio law to sustain one of these 

fDsitions, and to sustain the other it must be inserted in the act of 
ennsylv^a. Does not the only difference consist in sti'iking out 
in the one case and inserting in me other ? This must be admitted 
unless the words, ^^ wagon or carriage laden with the property of the 
United States," mean one thine in me Ohio law, and quite a differ- 
ent thing in the law of Pennsylvania. These words have a sensible 
and obvious application in both acts, without including the mail- 
stage. In the Ohio law the words '^ no toll shall be received or 
collected for the passage of any stage or coach conveying the 
United States mail," cannot,- by any sound construction, be con- 
sidered as surplusage ; and yet .they must be so considered if the 
Pennsylvania act exempt the mail-stage. 

When one speaks of transporting the property of the United 
States, the meaning of the terms "property of the United States," 
is never mistaken. They mean munitions of war, provisions pur- 


Searight v. Stakes et aL 

chased for the support of the army, and any other property pur- 
chased for the public revenue. They do not mean the mail of the 
United States. A wagon laden with property is understood to be a 
wagon used for the tnmsportation of propetty, in the ordinaiy sense 
of such terms. A wa^on or carria^ bemg laden is understood to 
have a full or usual load. The mail-sta^e of the United States is 
never spoken of in this sense. It is usea for the transportation of 
passengers as well as the mail, and in diis view it is undoubtedly 
considered when spoken of in conversation, and especially when 
referred to in a legislative act. In no sense can the mail-stage be 
considered a " carriage laden with the property of the United States.'* 
The same exception applies to a wagon or carriage laden with the 
property of a state, mw no one -can' doubt jthe meaning of the 
exception thus applied. And can a different meaning be ^ven to 
the same words when applied to the United States ? Certainly not. 
unless the mail can be denominated the property of the Unitea 

The mail of the United States is not the property of the United 
States. What constitutes the mail ? Not the leathern bag, but its 
contents. A stage load of mail-bags could not be called the mail. 
They might be denominated the property of the United States, but 
not the maU. The mail consists of packets of letters made up with 
post-bills, and directed to certain" post-offices for distribution or de- 
livery ; and whether these be conveyed in a bag or out of it, they 
are equally the mail ; but no bag without them is or can be called 
the mail. Can these packets be said to be the property of the 
United States ? The letters and their contents belong to individuals. 
No officer in the government can abstract a letter from the mail, not 
directed to him, without incurring die penalty of the law. And 
can these letters or mailed pamphlets or newspapers be called the 

Croperty of die United States ? They in no sense belong to the 
Fmted States, and are never so denominated. If a letter be stolen 
from the mail which contains a bank-note, the property in the note 
is laid in the person who wrote the letter in which the note is en- 
closed. From these views I am brou^t to the conclusion that 
neither party to the compact under consideration could have under- 
stood ^^ a wagon or carnage laden with the property of the United 
States," as includmg the mail-stage of the United States. 

Are there any considerations connected with this subject which 
lead to a different conclusion from that stated. The fact that four 
distinct compacts were entered into with four states to keep this 
road in repair, cannot have diis effect. We must judge of the in- 
tention of the parties to the compact by their language. I know of 
no other rule of construction. Two of these compacts exempt the 
mail-stage from toll, and two of them do not exempt it. Now, if 
the same constructioa, in this respect^ must be given to all of them, 

JANUARY TERM, 1845, 177 

Searigbt «. Stokes et aL 

which of the altematiTefl shall be adopted? Shall the mail-stage 
be exempted by all of them, or not exempted by any of them? 

y^hat effect can the expenditures of the United States, in -the 
construction of this road, have upon this question ? In my judg- 
ment, none whateyer. llie reservation must be constniea by its 
terms, and not by looking behind it. The federal govemm^t has 
been amply repaid for the expenditures in the construction of this 
load, great and wasteful as they may hav« been, by the resulting 
beneiSts to the nation^ It is now the road of Pennsylvania, subject 
only to the terms of the compact. In the act surrendering this 
road to the states respectiyely, throu^ which it passes, Congress 
say, H and the United States shall not thereafter be subject to any 
expense for repairing said road." To. set clear of this expense 
was the object of the cession of it to the states. But does this 
affect the question under consideration. The repairs of the road 
are provided for, by the tolls which the state of Pennsylvania is 
authorized *to impose. And this is the meaning of the above pro- 
vision. It is supposed, that the exaction of toll 'on the mail-stage ^ 
would conflict with that provision. -But how does it conflict with 
it? The toll on the mail-stage is not pud by the government, but 
by the contractor. And whether this toll will increase the price 
paid by the government for the transportation of the mail, is a mat- 
ter that cannot be determined. Competition is invited and bids 
are made for this service) and the price to be paid depends upon 
contingent circumstances. The toll would be paid, in part, if not 
in whole, by a small increase of price for the transportation of 
passengers. The profits of the contractor might, perhaps, be some- 
what lessened by me toll, or it mig^t increase, somewhat, the cost 
of conveying the mail. But this is indirect and contingent ; so 
that in no sense can it be considered as repumiant to th^ above 
provision. "The United States are not to be subject to any 
expense for repairing this road ;" and they are not, in the sense of 
the law, should the Post-ofEce Department have to pay, under the 
contingencies named, a part of the toll stated. Whether it does 
pay it or not, under Aiture contracts, cannot be known ; and what- 
ever expense it may pay, vrill be for the use, and not the repain, of 
the road. 

The act of the 13th of June, 1836, which is supposed to be in 
violation of the compact, I will now consider. That act provides, 
" That all wagons, carriages, or other modes of conveyance, pass- 
ing upon that part of the Cumberland road which passes throu^ 
Pennsylvania, carrying goods, cannon, or military stores belonging 
to the United States, or to any individual state of the union, which 
are excepted from the payment of toll by the second section of an 
act passed the 4th of April, 1831, shall extend only so far as to 
relieve such wagons, carriages, and other tnodes of conveyance, 
from the payment of toU to the proportional amount of suchgoods 

Vol. m.— 23 


8«arigbt • Stoket et sL 

80 earned bdonring to the United States, or to any of the indi- 
vidual states of 3ie union ; and that in all cases of waeons, car- 
riages* stages, or odier modes of conveyance, carrying £e United 
States mail, with passengers or ^ods, such wagon, stage, or other 
modtf oi conveyance, sh^ pay half-toll upon such modes of con- 

by the act of 1831, " every chariot, coach, coachee, stage, 
wagon, phaeton, or chaise, with two horses and four wheels, were 
to be charged at each gate twelve cents ; for either of the carriages 
last mentioned, with four horses, eighteen cents.'^ Is the act of 
1836, which imposes half-toll on ^^the mail-stage, with passengers 
or goods," repugnant to the above provision ? I think it is not, in 
any respect. 

If the mail be not the property of the United States, then the 
^age in which it is conveyed is not within the exception of the 
act of 1831, and it is liable to pay toll. That only which is within 
the exception is exempted, lliat the mail is in no sense the pro- 
perty of the United States, and was not so understood by the parties 
to the compact, has already been shown. It follows, therefore, 
that a law of Pennsylvania, imposing on such stage a half or full 
rate of toll, is no violation of the compact. 

But, if the mail-stage were placed on a footing with a wagon or 
carriage laden with the property of the United Sates, is the act of 
1836, requiring it to pay toll, a violation of the compact? I think it 
is not. A wagon or carriage laden with the property of the United 
States, means a wagon or carriage having, as before remarked, a 
full or usual load. Such a vehicte is exempted from toll by the act 
of 1831. But suppose such wagon or carnage should have half its 
load of the property of the United States, and the other half of the 
property of mdividuals, for which the ordinary price for transportar 
tion was paid ; is such a wagon, thus laden, exempted from toll? 
Surely it is not. An exen^ption irnder such circumstances would 
be a fraud upon the compact. It should be required to pay half- 
toll, and this is what the law of Pennsylvania requires, llie mail- 
stage by that law is only half-toll, when it conveys passengers with 
the mau. There is, then, no legal objection to the exaction of this 
toll. It is in. every point of view just, and within the spirit of the 

In die argument for the United States, the broad ground was 
assumed, that no state had the power to impose a toll on a stage 
used for the transportation of the mail. That it is a means of me 
federal government to carry into effect its constitutional powers, 
and, consequently, is not a subject of state taxation. To sustain 
thisposition the cases of McCulloch v. The State of Maiyland, 
4 l^eaton, 316, and Dobbins v. The Commisaoners of Erie 
County, 16 Peters, 435, were cited. 

In the first case, this court held, ^^that a state government had no 

JANUARY TERM, 1815. n» 

Searight V. Stoket et sL 

rij^t to tax any of the constitutional means employed by Ae govern- 
ment of the union, to execute its constitutional powers." And the 
Bank of the United States was held to be a means of the goyem- 
ment In the second case, under a general law of Pennsylvania 
imposinfi^ a tax on all officers, a tax was assessed on the office held 
by the plaintiff, as captain of a reyenue*cuttcr of the United States, 
and this court held that such law, so far as it affected such an officer, 
was unconstitutional and void. The court say, ^^ there is. a concurr 
rent right of legislation in the states and the United States, except 
as bom are restrained by the Constitution of the United States. 
Both are restrained by express prohibition^ in the Constitution ; and 
the states by such as are reciprocally implied when the exercise of 
a right by a state conflicts with the perfect execution of another 
sovereign power delegated to the United States. That occuis when 
taxation by a state acts upon the instruments and emoluments and 
persons which the United States may use and employ as necessary 
and proper means to execute their sovereign power." 

Neither of these cases reach or afiect me principle involved in 
the case imder consideration. The officer of the United States V^ 
considered as a meaiis or instrument of the goveimient, and, tiiere* 
fore, could not be taxed by the state as an offioer. To msJce that 
case the same in principle as .th^ one before us, tfa^ officer must 
claim exemption from toll as a means of Ihe government, in pfissing 
over a toll-bridge or turnpike-road eonstructed bv a state, or by an 
association of individuals, under a state laww^ The principle of the 
other case is equally inapplicable* Maryland taxeti. the franchise 
of tiie Bank of the United States^ and if the law establisl^ng tiiat 
bank were constitutional, the franchise was n\E> more liable to %axzr 
tion by^a state than rights and privSeges' conferred on one or more 
individuals,, under any law of the union. With thie same propriety 
a judge of the United States mi^t be subjected to a ta^ by a state 
for the exercise of his judicial functions. And so of eveiy ptiier 
officer and public a^nt But the court held ths^tthi^ stock iil the 
b«i^ ownea by a citizen might be taxed. 

A toll exacted for the passage over a bridge or on atumpike-road 
is not, strictiy speaking, a tax. It is a. compensation for a benefit 
conferred. Money has been expended in the construction of the 
road .or bridge, which adds greatiy to the comforts and fa^^ilities of 
traveQing, and on this ^und compensation is demanded. Now, 
can the United States claim the right to use such road or bridge fre^ 
from toll ? Can they place locomotives on the rail-roads of tiie states 
or of companies, and use them by virtue of their sovereignty ? Such 
acts would appropriate private property for public purposes, without 
compensation ; and this the Constitution of the union prohibits. 

It is said, in the argument, that as well ni^t ti revenue-cutter be 
taxed by a state a^ to impose a toll on tiie Stage which convejrs the 
mail. The revenue-cutter plies on the thorough&re of nati(^ or of 


Searight v. dtoket et al. 

the State, which is open to all vessels. But the stage passes oyer an 
artificial stnicture of great expense, which is only common to all who 
pay for its use a reasonable compensation., lliere can be no diffi- 
culty on this point. At no time, it is believed, has the Post-office 
Department asserted the right to use the turnpike-roads of a state, in 
the transmission of the mau, free from toll. 

Pennsylvania stands pledged to keep the road in repair, by the 
use of the means stipulated in the compact. And she has bound 
herself, ^^ that, no change, alteration, or amendment ^all ever be 
adopted that will in any wise defeat or affect ihc true intent and 
meaning of the a6t of lo31.^' In my judgment, that state has in no 
respect violated the compact by the act of 1836. If the mail-stage 
can be included in the exemption by the terms, ^^ wagon or carriage 
laden with the property of me United States," ^1 the half-toll on 
such stage, when it contains passengers, is within the compact. But, 
as has beien shown, the mail-stage is not included in the exemption^ 
and, consequently, it was liable to be charged with full toll. The state, 
therefore, instead of excteding its powers under the compact, has 
not yet exercised them to the extent which the act of 1831 au- 

Mr. Justice DANIEL. 

"With the profoundest respect for the opinions of my brethren, I 
find myself constrained openly to differ from the decision* which, on 
behalf of the majority of me court, has just been pronounced. This 
case, although in form a contest between individuals, is in truth a 
question between the government of the United States and the go* 
vemment of Pennsylvania. It 13, to a certain extent, a question of 
power between those two governments ; and, indeed, so far as it i^ 
represented to be a question of compact, the very consideration on 
which the interests of the federal government are ursed involves impli- 
cationsb sdOTecting mediately or directly what are held to be great and 
fundamental principles in our state and federal systems. It brings 
necessarily into view the operation and effect of the compact insisted 
upon as controlled and Hmited by the powers of both ihe contract- 
ing parties. In order to show more plamly the bearing of the prin- 
ciples above mentioned upon the case before us, they will here be 
more explicitly, though cursorily, referred to. 

I hold, then, that neither Congress nor the federal government in 
the exercise of all or any of its powers or attributes possesses the 

Eower to construct roads, nor any other description of what have 
een called internal improvements, within the limits of the states. 
That the territory and soil of the several states appertain to them by 
title paramount to the Constitution^ and cannot be taken, save wim 
the e5cceptions of those portions theneof winch might be ceded for 
the seat of the federal government and for sites permitted to be pur- 
diased for forts, arsenms, dock-yards, &c., &c. That the power of 

JANUARY TERM, 1845. 181 

Searight v. Stokes et aL 

tfie federal government to acquire, and that of &e states to cede to 
Aat govemment portions of dieir territory, are by the Constitution 
limited to the instances above adverted to, and that these powers 
can neither be enlarged nor modified but in virtue of some new fa* 
cuhy to be imparted by amendments of the Constitution. I believe 
that the Authority vested in Congress by the Constitution to establish 
post-roads, confers no ri^ht to open new roads, but implies nothing 
beyond a discretion in Uie government in the regulaiions it ma^ 
make for the Post-office Department for the selection amongst vari- 
ous routes, whilst they contmue in existence, of those along which 
it may deem it most judicioDs to have the mails transported. I do 
not believe that this power given to Congress expresses or implies 
any thing pecidiar in relation to the means or modes of tranroorting 
&e pubhc mail, or refers to any stipposed means or modes ot trans- 
portation beyond the usual manner existing and practised in the 
country, ana certainly it cannot be understood to clestroy or in any 
wise to affect the proprietary rights belonging to individuals or com- 
panies vested in those roads. It guaranties to' the government the 
ri^t to avail itself of die facilities offered by those roads for the 
purposes of transportation, but imparts to it ho exclusive rights — it 
puts the govemment upon the footing of others who wouul avail 
themselves of the same facilities. 

In accordance with the principles above stated, and which with 
me are fundamental, I am unable to perceive how the federal ^- 
vemment could acquire any power over the Cumberland road oy 
making appropriations, or oy expending money to any amount for 
its construction or repair, though these appropriations and expendi- 
tures may have been made with the assent, and even with the solici- 
tation of Pennsylvania. Neither the federal government separately, 
nor conjointly with the state of Pennsylvania, could have power to 
repeal the Constitution. Arguments drawn from convenience or 
inconvenience can have no force with me in questions of constitu- 
tional power ; indeed, theyxrannot be admitted at all, for if once ad- 
mitted, they sweep away evenr barrier erected by the Constitution 
against implied authority, and may cover every project which the 
hurian mind may conceive. It matters not, dien, what or how 

fieat the adyantag^e which the government of the United States may 
ave proposed to itself or to others in undertaking this road ; such 
Purposes or objects could legitimate no acts either expressly forbid- - 
en or not plainly authorized. If the mere, appropriation or dis- 
bursement of money can create rights in the govemment, they may 
extend this principle indefinitely, and with the very worst tenden- 
cies — ^those tendencies would be the temptation to prodigality in the 
gf>vemment and a dangerous influence with respect to others. 

In my view, then, the federal govemment could erect no toll- 
gates nor make any exaction of tolls upon this road ; nor could that 
government, in consideration of what it had done or contributed, 



Searight o. Stokes et sL 

constitutionally and legally demand <^the state of Pennsylyania the 
regulation of tolls either as to the imposition of particular rates or 
the exemption of any roecies of tranqportation upon it As a matter 
of constitutional and legal' power and authority, this appertained to 
the state of Pennsylvania exclusively. Independendy, uen, of any 
stipulations with respect to them, vehicles of the United States, or 
vehicles transporting the property of the United States, and that pro* 
I>erty itself, would, m passing over this road, be in the same situa- 
tion precisely with vehicles and property appertaining to all other 
Eersons; they would be subject to the toHs regumrlr iinposed 
y law. There can be no doubt if tiie road were vestea in a com- 
pany or in a state, that either the company or the state might stipulate 
for any rate of toll within the maximum of their power, ot might 
consent to an entire exemption ; and such stipulation, if made^for a 
valtiable or a legal consideration, would be bmding. 

The United States may contract with companies or with commu- 
nities for the transportation of their mi ils, or any of their property, 
as well as with carriers of a diflerent description ; and consequenUy 
could contract with the state of Pennsylvania. But ^at is meant to 
be insisted on here is, that the gjovemment could legally claim no 
power to collect tolls, no exemption from tolls, nor any dimii\ii(tion 
of tolls in their favour, purely in consequence of their having expand- 
ed money on the road, and without the recognition by Pennsylvania of 
that expenditure as a condition in any contract they might make with 
that state. Without such recognition, the federal government must 
occupy the same position -wiih other travellers or carriers, and re- 
main subject to every regulation of her road laws which the state 
could legally impose on others. 

This brings us to an examination of the statutes of Pennsylvania, 
and to an inquiry into any stipulations which the state b said to have 
made with the federal government, as declared in those statutes. 
Tliat examination will, however, be premised by some observations, 
which seem to be called for on this occasion. These acts of the 
Pennsylvania legislature have been compared with the acts of other 
legislative bodies relative to tliis road, and it has been supposed that 
the Pennsylvania laws should be interpreted in conjunction with those 
other state laws, and farther, that all these separate state enactments 
siiould be taken, together with the acts of Congress passed as to them 
respectively, as forming one, or as parts of one entire compact with 
the federal j^ovcmment. I cannot concur in such a view of this case. 
On the contrary, I must consider each of the states that have legis- 
lated in respect to this road, as competent to speak for herself; as 
speaking in reference to her own interests and policy, and independ- 
endy of all others ; and unshackled by the proceedings of any others. 
By this rule of construction let us examine the statutes of Pennsyl- 
vania. The act of April 4th, 1831, which may be called the com- 
pact Uyf as it contains all that Pennsylvania professed to undertake. 

JANUARY TERM, 1845. 1» 

Searight v. Stokes et al. 

beffins by statinfl; the doubts ^priiich were entertained upon die 
auSiori^r of the United States to erect toll-gates and to collect tolls 
on the Cumberland road ; doubts which, with the goTemment as well 
as with others, seem to have ripened into certainties, inasmuch as, 
notwithstanding its large expenditures upon this road, the govern- 
ment had never exacted tolls for travelling or for transportation upon 
it. The statute goes on next to provide, that if the government of 
die United States will make such fieurther expenditures as shall put 
the road lying within the limits of Pennsylvania in complete repair, . 
Pennsylvania will erect toll-gates and collect tolls upon the road, to 
be applied to the repairs and preservation of it. The same act in- 
vests the commissioners it appoints to superintend the road, with 
power to increase or diminish tne tolls to be levied ; limiting ibt in- 
crease by the rates whidi the state had authorized upon an artificial 
road that die had established Trom the Sus(}uehanna, opposite the 
borough of Harrisburg, to Pittsbure. Then m the act of 1831 are 
enumerated the subjects of toU, and t£e rates prescribed as to each 
of those subjects. Amongst the former are mentioned chariots, 
coaches, coadiees, sta^, wagons, phaetons, chaises. In the 3d pro- 
viso to the id section it is declared, ^' that no toll shall be received 
or collected for the passage of any wagon or carriage laden with the 
poperty of the United l^tes, or any cannon or military stores be- 
longing to the United States, or to any of the states belonging to this 
union.'' On the 13th of June, 1836, was passed by the legidature 
of Pennsylvania, ^^ An act relating to the tolls on that part of the 
Cumberland road which psses throu^ Pennsylvania.'' The 1st 
section of this act is in the following words : ^' All wagons, carris^ges, or 
other modes of conveyance, passing upon that part of the Cumberland 
road which passes throu^ Pennsylvania, carrying goods, cannon, or 
military stores, belonginc; to the united States, or to any individual 
state of the union, wnicn are excepted from the payment of toll b^ 
the second section of an act passed the fourth of April, ^nno Doinini 
e^teen hundred and thirty-one, shall extend only so fiur as to relieve 
such wagons, carriages, and other modes of conveyance, bom the 
payment of toll to the proportional amount of such goods so carried* 
belon^g to the United States, or to any of the individual States of 
the union; and that in all cases of wagons, carriages, stages, or odier 
modes of conveyance, carrying the Unitea States mail, widi passen- 
ger! or ffoods, such wagon, stf^„ or other mode of conveyance, shall 
pay half-toll upon such modes of conveyance," 

Upon the construction to be given to the 1st and 2d sections of 
tfie ftatute of 1831, and to the 1st section of the statute of 1836, de- 
poids the decidon of the case before us. By ih6 defendant in error 
It is insisted tiiat, by the sections of the act of 1831 above cited, 
stages or stage-coaches, tranqporting the mail of the United States, 
are wholly exempted by compact from the payment of toUs, althoag^ 
the. mails may constitute but a small portion of their lading; and 


Searight v. Stokes et aL 

those vehicles may be at the same time freighted for the exeiusive 
profit of the riaail contractors, with any number of passengers, or 
with any quantity of baggage or goods, which can be transported in 
them, consistently with me transportation of the mail ; and that the 
1st section of the act of 1836, which declares that ^^ in all cases of 
wagons, carriages, stages, or o&er modes of conveyance, carrying 
the United States mail, with passene^ers or snoods, such wagon, «tage, 
or other mode of conveyance, shsdl pay half-toll upon such mode 
of conveyance,*' is a violation of the compact. Let us pause here, 
and inquire what was the natural and probable purpose of the ex- 
emption contained in the act of 1831 ? Was mat exemption de- 
signed as a privilege or facility to the government, or as a donation 
for private and incUvidual advantage? Common sense would seem 
to dictate the reply, that the former only was intended by the law ; 
and even if the privilege or facility to the government could be best 
secured hj associating it with individual profit, certainly that privi- 
lege or feicility could, on no principle of reason or fairness, be so 
sunk, so lost sight of, so entirely perverted, as to make it a mean 
chiefly of imjMsition and gam on the part of individuals, and the 
cause of positive and serious public detriment; and such must be 
the result of the practice contended for by the defendants in error, as 
it would tend to impede the celerity of transportation, and to des^y 
the road itself, bv withholding the natural and proper fund for its 
maintenance. Passing then from what is believed to be the natural 
design of these enactments, let their terms and language be considered. 
By those of the 2d section of the law of 1831, every stage or wagon 
is made expressly liable to toll, .without regard to the subjects it 
might transport, and without regard to the ownership of the vehicle 
itsdf* The terms of the law are universal ; they comprehend all 
stages and all wagons; they would necessarily, therefore, embrace 
stages and wagons of the United States, or the lUce vehicles of otliers 
carrying the propertjr of the United States or of private persons. If, 
then, either the vehicles of the United States, or of omers carrying 
the property of the United States, have been withdrawn from the 
operation of the act of 1831, this can have been done only by force 
of the 3d pipviso of the 2d section of that act. llie proviso raerred 
to declares that no toll shall '^be collected for the passage of any 
wagon or carriage laden with the property of the United States,*' 4c., 
&c. Can tins proviso be understood as exempting stages, whether 
belonging to the government or to individuals, which were intended 
purposely to carry the mail? It is not deemed necessary, in intcr- 

Sreting this proviso, to discuss the question, \«hether the United 
tates have a property in mails which they carry. Itma^ be admit- 
ted that the United States and all their contractors have m the mails 
that property which vests by law in all common carriers; it may be 
admitted that the United States have an interest in the mails even 
beyond this. These admissions do not vary the resd inquiry here. 

JANUARY TERBi 1845. 186 

Searight v. Stoket et aL 

whicb 18, whether by this proyiso the mails of the United States, or 
the carmges transporting mem, were intended to be exempted from 
toll»? ^is law, Uke every other instrument, should be mterpreted 
according to the common and received acceptation of its words ; and 
artificial or technical significations of words or phrases should not 
be resorted to, except when unavoidable, to give a sensible meaning 
to the instrument interpreted ; or when they may be considered as 
coming obviously within the understanding and contetnplation of the 
parties. According to this rule of interpretation, what would be 
commonly understood by " the property of the United States,*' or by 
die phrase ^' wagons and carnages laden with the proper^ of the 
United States f'' Would common intendment apply those terms to 
the mail of die United States, or to vehicles carrying that mail ? The 
term " mail" is peifaaps universally comprehended as being that over 
wUch the government has the management for the purposes of con- 
veyance and distribution; and it would strike the common under- 
standing as something singular, to be told that the money or letter^ 
belonging to the citizen, and for the tran^rtation of which he P^i 
was not his property, but was the property of the United States. Ine 
term ^^ mail," then, having a meaning clearly defined and universally 
understood, it is conclusive to my mmd, that in a provision design^ 
to exempt that mail, or die vehicle for its transportation, the general 
and eqmvocal term "property" would not have been selected, but 
Hie terms " mul," and " stages carrying the mail" — ^terms femiliar to 
an — ^would have been expr^y introduced. 

Farther illuttradon of the language and objects of the legislature 
of Pennsylvania may be derived fix>m the circumstance, that, in the 
law of 1831, they coujile the phrase " property of the United States" 
with " property of the states." The same language is used in reference 
to both; they are both comprised in the same sentence; the same 
exemption is extended to both. Now the states have no mails to be 
transported. It then can by no means follow, either by necessary or 
even plausible interpretation, that by " property of the United States" 
was meant the " mails of die Unitea States," any more than by " pro- 
perty of the states" was meant the " mails" of those states; on the 
contrary, it seems &r more reasonable that the legislature designed 
to make no distmction with reeard to either, but intended that the 
term " property" diould have the same signification in reference both 
to the state and federal govemmejits. 

In dieacceptation of the term " property," insisted on for the defend- 
ants in error, the mails committed to the contractor are the property 
of diat contractor also» Yet it would hardly have been contended 
that in a provision for exempting the " property" of a mail contractor 
from tolls, either a vehicle belonging to the United States, and m the 
use of such a contractor, or the mau which he carried in it, would 
be 80 considered as Us property as to bring them within that exemp- 
tion ; yet such is the conclusion to which the interpretation contended 

Vol. m.— 24 q2 


Searight v. 8toket et aL 

for by tbe defendants would inevitably lead. That construction I 
deem to be forced and artiiicial| and not the legitimate interpreta- 
tiqiFof the statute, especially when I consider that there are various 
otiber subjects of property belonging to the United States, and be- 
longing to them absoiutefy and excmsivelv, which from their variety 
could not well be specifically enumerated, and which, at some pe- 
riod or other, it might become convenient to the government and be- 
neficial to the country to transport upon this road. But if, by any 
interpretation, the words ^^ wagon or carriage laden with the proper- 
ty of the United States,^' can be made to embrace stages carrying 
me mail, and employed purposely for that service, they surely can- 
not, by the most forced- construction, be made to embrace stages 
laden ^th every thing else, by comparison, except the mail of the 
United States, and in which the mail was a mere pretext for the 
transportation of passengers and merchandise, or property of every 
description and to any amount, free of toll. They must at all events 
be laden with the mail. The term laden cannot be taken here as a 
mere expletive, nor should it be wrested fr5m its natural import — be 
made identical in si^ification with the terms ^^ carrying" or ^^trans- 
porting." Such a departure would again be a violation of common 
mtendment, and should not be resorted to ; and the abuses just shown, 
which such a departure would let in and protect, furnish another and 
most cogent reason why the common acceptation of the phrase, ^' pro- 
perty of the United States," should be adhered to. Fairness and 
equality with respect to all earners and travellers upon this road, and 
justice to the state which has undertaken to keep it in repair from the 
tolls collectable upon it, require this adherence. 

If the interpretation here given of the act of 1831 be correct, then 
admitting that act to be a compact between Pennsylvania and the 
United States, the former has,^ by the 1st section of t^e act of 1836, 
infracted no stipulation in that compact. Penns)'lvania never did, 
accot^ing to my understanding of her law of 1831, a^ee to the ex- 
emption from tolls for stages," wagons, or vehicles of anv kind, in- 
tended for carrying the mails of the United States. These stood 
upon the like footing with oflier carriages. If this be true, then by 
the act of 1836, in which she has subjected to half-tolls only, stages, 
wagons, &c., carrying the mails, and at the same time transporting 
passengers or goods, so far from violating her compact, or iiiiSicting 
a wrong upon 3ie government or upon m^ contractors, tfiat state has 
extended to. them a privilege and an advantage which, under the 3d 
proviso of the act of 1831, they did not possess. My opinion is. 
that the plaintiff in the court below had an undoubted rig^t'of 

JANUARY TEBBf, 1846. 187 

LssBKX OF Anoeuca Cboohan bt al., PLAnmrF, v. Johh Nsuon, 


In makiDg an entry of land, where mistakes occor which are dceasioned by 
the impracticability of ascertaining the relatiice positions of the objects called 
for, the court will correct those mistakes so as to carry out the intentions of 
the locator. 

This case came up on a certificate of division in opinion between 
the judges of the court below. It was an ejectment brou^t in the 
Circuit Court of the United States for the district of Kentucky. 

The case was this: ■ 

On the 16th of August, 1784, William Croghan^ under whom 
the plaintiff claimed title, made the following entiy : ^ William 
Cro^an, assignee, enters 1000 acres of land, part of a miiitaiy 
warrant. No. 2023, beginning at a fo/k of Mayneld creek, about 
two miles by water above Fort Jefferson, where a branch, occasiqhed 
by the high waters firom the Mississippi, runs out of said creek, tCxid 
at high water empties into the riyer at the upper end of the iron 
banks ; firom said beginning 500 poles, when reduced to a strai^t 
line ; and then off from the branch towards [the] Mississippi on a 
line parallel to Ma}^eld creek, until a line from the extremity of 
said line, parallel widi the first line, will strike Mayfield creek,, to 
include the quantity;" 

On the 29th of November, 1826, a patent was issued to Cro^ian 
by the governor of Kentucky, which described the land as follows: 
<^ Beginnii^ at a fork of Mayfield creek, occasioned by high water 
firom the Mis3issippi river, and whi^h creek or bayou empties into 
die Mississippi at the upper end of the iron banics, on a walnut, 
sweet gum, and ash standing on the west bank of the creek ; run- 
ning thence down the bayou or branch aforesaid with the meandecs 
thereof, S. 18° W. 134 poles, S. 36° W. 200 poles, S. 48° W. 12 
poles, S. 18° W. 14 poles, S. 18° W. 54 poles, S. 30° W. 120 

Eoles ; thence S. 110 poles, to two ash trees, a hackbeny, and red 
ud on the west bank of Ae bayou ; thence N. 75 W. 206 poles^ 
to an elm, a sycamore, and box elder on die bank of the Mississippi 
river ; thence up the sanle, with its meanders, and binding on it at 
low water-mark, N., &c., &c., to a walnut and two cotton wood 
trees at the mouth of Majrfield creek ; thence up the creek, with the 
several meanders thereof, and binding on the same at low water- 
mark, &c., &c., to the beginning." 

In 1830, Nelson took out ft patent for the firactional north-west 
quarter of section 32, &c., contam^in^ 103 acres. 

The whole dispute being one of location, it is impossible to 
understand the opmion of the court vnthout a map or diagram. 



Croghan't Lessee v. Nelson. 

A, B, C) D) is the survey made for Croghan. A being the be- 
ginning station, and D the mouth of Mayfield creek. The defend- 

ant contended that the plaintiff's line should run from B to E, and 
from E to D, in which case it is manifest that it would not include 

JANUARY TERM, 1846^ 180 

Croghan'a Leasee t. Nelion. 

the land granted to Kelsoni the line B E being parallel to a line 
drawn from A to D. 

Upon tbe trial, the counsel for the defendants asked tbe court to 
instruct the junr, that <' if they believe from the evidence that the 
course of Mayneld creek, from A to D, is correctly laid down, 
then the line from B towards the Mississippi river otould be run 
parallel to ^at to conform to the entry ; and if, in running that 
parallel line, they shall believe from^the evidence tiiat the improve* 
ment of the defendants is left out, they ou^t to find for the defend* 
ants. But the court were divided in opimon on the point, whether 
the second line called for in the entry should run from B to E, or 
whether the line from B to C should be tsdcen, and recognised as 
the true and proper line, it biBing the line pn which the patent was 
foui^ded. One judee b^ing of opmion, that for all the land south 
an(f west of a line from B to E the patent was void, and the other 
judge being (^ a contrary opinion. 
'Upon this point, the case came up. 

It was argued by Mr. Underwood for Crbdian's hbirs, who eon- 
tended that the entry was '^precise enough for others to locate 
other warrants with certainty on the adjacent residuum,'' as required 
by the act of 1779. The fork of the creek being found, it would 
be easy for a subsequent locator to run the line to B. Arrived 
tiiere, and desiring to locate the ^^ adjacent residuum" below, I 
think he has the means of knowing and ascertaining '< preciie/y" 
^e course which Croghan's line from B towards the Miadssippi 
must pursue, and the mstance b that direction. 

Entries for land are addressed to the common good sense of those 
euCTged in appropriating the tacant domain, and are to be '^ special 
and precise,'' so that subsequent locators shall not be deceived or 
deluded to tiieir- injury. 

An entry is to be understood and taken as it would have been 
understood on the day it was made. See 1 Bibb, 36, 84E> 2 Bibb, 
105 ; Hardin, 287. 

Rectangular figure is -not to be departed irom without a strong in- 
dication of a contrary intent. 2 Bibb, 120 ;. see also cases referred 
to under the 29th rule, in the index to 3 Bibb, imder the head 

A locator is not bound to give the best possible description, b^t 
it diouJd be certain to a common mtent, and not misleading. St Bibb, 
144; 1 Bibb, 73, 64. 

With ^hes^ rules m the mind of a subsequent locator, wishing to 
ascertain the exact position of Crogfaan's 1000 acres, and with the 
entry before him, let us exanfine how he would proceed and reason 
upon the subject He could not know the exact position of the 
lines without making a survey of the pntiy ; but that is equally tnK! 
in respect to every entry, no matter ho W special. He would xnow 


' ^ 

Croghan's Lessee v. NelsoD. 

that the natural objects called for were to constitute boundaries of 
the survey, when made. Thus, a subsequent locator would know, 
by inspecting the entry, that the branch down towards the iron banks 
from die forS of the creek at A, upon the plat, to a point 500 poles, 
when reduced to a straight line, from the beginning, constituted 6art 
of the boundary. He would also know that Mayfield creek, from 
the fork at A down towards its mouth, constituted another portion 
of the boundary. With this knowled^, he woxild find no difficult 
in locating the adjacent residuum, Ijing eastwardly of the brandd 
and the creek, without interfering with Croghan's entry. Conceding 
that a subsequent locator would oe ignorant of the true course of the 
line from B upon the plat towards the Mississippi river, until a survey 
was actually made, still, if he desired to enter the land west of the 
branch below. Croghan's entry, and adjoining Croghan's tract, h^ 
could have done so with perfect safety by calling to adjoin Cre- 
tan, without giving the course. If a subsequent locator wished to 
enter land below the mouth of Mayfield creek, lying between the 
river and Croghan's entry, supposing there might be land thus situ- 
ated not covered by Croghan's entry, he would find no diflSculty in 
making such an entry without interfering with Croghan, by calling 
to bind on Croghan and the river. Thus it is manifest, that the 
*f adjacent resiouum," in the language of the act of 1779, all around 
Croghan's entry, might have been appropriated by a subsequent lo- 
cator, without interfering with Croghan's entry. I therefore insist, 
it is " certain to a common intent, and not misleading," in the judi- 
cial language of the Appellate Court of Kentucky. A better descrip- 
tion than that given will therefore not be required. 
. Mr. Underwood then proceeded to argue, that the line from B 
should run, not parallel with that part of the creek between A and 
the mouth of it, but parallel with the general course of the stream, 
including the part above A, because this would include only 835 
acres, and the locator's intention was to enter 1000. 

He then referred to a number of Kentucky cases to show, feat tfife^ 
intention of the locator toust be carried out, &c., &c 

Mr. Justice McKINLEY delivered the opinion of the court. 

This is a case certified to this court fix)m the Circuit Court for the 
district of Kentucky. 

The plaintifB brought an action of ejectment, in that court, against 
the defendants : and to support their\action, they read to the juiy a 
patent for 1000 acres of land, granted by the state of Kentucky to 
Charles Croghan, bearing date the 2dth of November, 1S26, and 
proved title m themselves by the will of the said Charles Cretan. 
The plat mariced A was shown to the jury ; and the surveyor proved, 
that the fork of Mayfield creeV, at the letter A, was correctly laid 
down ; that five hundred polcSj on a straight line, on the branch . 
leading from Mayfield creek, would extend the line to letter B, on 

JANUARY TERM, 1846, 191 

Croghan*8 Lessee t. Nelsoo, 

^ plat, where one of the patent-comers wis found ; and that the 
plat truly represented the Isoid granted by the patent 

The defendant then read the following entry of William Crodian, 
assignee, for 1000 acres, dated 16th of August, 1784, on whichthe 
patent is founded, to wit: ^* William Crdghan, assignee, enters 1000 
acres of land, pait of a military warrant, No. 202o, beginning at a 
fork of Mayfield creek, about two miles by water above Fort Jefiei^ 
son, where a branch, occasioned by the high waters from the Missis- 
sippi, runs out of said creek, ^nd at hifi^h water empties into the river 
at the upper end of the iron-banks ; from said beginning 500 poles, 
when reduced to a straight line ; and then off from the branch to- 
wards the Mississippi, oa a line parallel to Mavfield creek, until a 
line from the extremity of said line, parallel wiUi the first line, will 
strike Mayfield creek, to include the quantity." The defendants 
then offered in evidence a patent from the state of Kentucky to Hugh 
Nelson, for 103 acres of land, bearing date the 17th of December, 
1830 ; and proved by the surveyor, mat the beginning of the entry 
was at A, on the plat, and that the end of the first Une was at B, 
and if a line were run firom B towards the Mississippi river, in a di- 
rection parallel with the general course of Mayfidd creek, for 
twelve miles above the fork at A, it would be the-red line extendme 
from the letter B to the Mississippi river at F. It was also proved, 
if a line were run from the comer at B parallel with Mayfield creek, 
below the fork, to the letter D, at the mouth of the creek, it would 
run from B to £, and leave out the land claimed by the defendants. 
The surveyor also proved, that the various lines on the plat were 
correctly laid down from actual survey. 

" The counsel for the defendants then prayed the court to instruct 
the iury, if they believe, from the evidence, that the course of May- 
field creek from A to D is correctly laid down, then a line from B 
towards the Mississippi river should be run parallel to that line, to 
conform to the entry ;. and if, in running that parallel line, they shall 
believe, from the evidence, that the improvement of the defendants 
is left out, they ought to find for the defendants.^ ButVthe court 
were divided in opinion on the point, whether the second line called 
for in the entry should run from B to £, or, whether the line from B 
to C should be taken and recognised as the true and proper line, it 
being the line on which the patent was founded. One of the judges 
being of the opinion, that for all the land south ard west of a line fi:^m 
B to E the patent was void ; and the other judge being ^f a contraiy 
opinion. They were also divided in opinion, for the-forcgoin^ ^easons^ 
vniether the foregoing instructions ou^ht to be given or/efused." 

By a statute of Kentucky, passed £e 26th of December, l820, it 
is required, that all surveys thereafter to be made on .entries :west of 
Tennessee river should oe run according to the calls of the eiitrT. 
And^' to enable the register to ascertaii^ whether the survey is made 
according to entry , a copy of the entry shall be returned to the le- 


CrQghan*s Lessee t. Nel'son. 

pater's. office, with Hie plat and certificate of surrey ; and any pa- 
tent issuing on a surrey made «ontranr to the location ^all be void 
to all intents and purposes, so far as die' same may be different a^d 
variant firom the location." The survey in this case was made on 
the 6th day of November, 1825; and the patent under whidi the 
defendants claim, dated the 17th day of December, 1830, was grant- 
ed for Idnd sold by the state subsequent to the date of the patent 
under which the plamtifls claim title, and which covers part of ^e 
land claimed by the defendants. This brings in question the legality 
of the survey, and the construction of the en1iy on which it was 
made, and leads to an examination of the points certified for our 

But before we enter on that duty it will be prefer to consider 
file circumstances in which the locator was j)laced when he made the 
entry. It was proved in the Circuit Court, th^t along Ihis branch 
diere was a very dense cane-brake, and &e greater part of the land 
covered by the patent is still a dense cane-brake. It was alsb proved, 
dmt a line run parallel with the general ^ course of Mayfield cleek, 
for twelve mUes abqve the fork, and crossing the branch, at the ^d*« 
nunaSon of the 500 poles, firom A to B, on the plat, would strike 
the Missisoppi river at F, on the plat, a considerable distance below 
die comer c^led for in the patent at the letter C. And it appears 
by the plat tliat the creek continues to run nearly the same course 
for 300 or 400 vards below the fork, and then runs north of north- 
west for about oOO poles. . Now we have a righrto infisr, from the 
6et8 proved, dial aD the land included in Crog4ian's patent, laid all 
the river bottom above Mayfield creek, at the date of the entry, was 
a dense cane-brake ; because, if ah object, permanent in its nature, 
18 proved to exist at the time of the trial, it is fair to infer that it 
existed at the time the entry was made. Crochet v. Greenup, 
4 Bn)b, R. 158. The history and topogrs^hy of the great valley of 
the BGssBSsipin proves satisfactorily, that where diere is a cane-brake 
now there ^^ras one sixty ^ears a^ ; and this faidy induces the belief 
that the cane upon the noh and alluvion lands is coeval with the 
oldest trees of the forest As the locator had the means of ascer- 
taining the course of Mayfield creek above the fork, where it .ran 
across the hieh lands, and where there was no cane, it is reasonable 
to suppose, from the calls of die entry, that he believed that Ma]^eld 
creek, oelow the fork, ran nearly at right angles to the branch in its 

Serai course to the river. And he had a right, from the circum- 
Lces, dsolo believe, that the distance'from the fork of die (»«ek 
to the river was about two miles, when in fact it was less than one 

It is obvious fit)m these circumstances, and the calls of the entry, 
tbift the locator believed die survey to be made upon it would ap- 
proach as near to a paralldo^m as the irregularity of the two 
natural boundaries would permit. ^ We are led to the conclusioh, 

JANUARY TERM, 1848, 198 

Croghan's Ltsset •• Neison. 

Ilieiefore, that these mutaket were all occaaoned by tibe impractica- 
Inlity of ascertaining the relative positions of the objects called for, 
and the courses and distances of the lines neceMary to include the 
quantity of land specified in the entry. But mistakes of this cha- 
racter haye*been corrected, as fair as practicable, by the , courts of 
Kentucky, in ffiyin^ construction to entries, and particularly in two 
recent cases luce this between military claims and purchases from 
the state. Rays v. Woods, and Daniel, &c. v. Allison, 2 B. Mon- 
roe's Rep. 324. Keeping these mistakes in view, we will proceed 
to ^re construction to the entry. The call to run from the termi- 
nation of the base line at Bj 500 poles from the fork of the creek at 
A, and off from the branch towards the Mississippi on a line parallel 
to Mayfield creek, until a line from the extremity of said line, par- 
allel with the first line, will strike Mayfield creek, to mclude the 
(quantity, presupposes that a line from the termination of the base 
line on the brs^ich, parallel with Mayfield creek> to mclude the 
quantity, would terminate before it reached the river, otherwise die 
locator would have called to run to the river. But it was found, 
when they made the survey, that the whole area, bounded by the 
branch, from the termination of the 500 poles. Mayfield creek to its 
mouth, and the Mississippi river, down to the < letter £, the point 
where a line running from the termination of the base line, parallel 
to Mayfield creek, smkes the river, would include but 887 acres, and 
when reduced to sti'aight lines, would present a rhomboidal figure, 
with two extremely acute, and two extremely obtuse angles, instead 
of the figure which must have been in the mmd of the locator when 
he made the entr^. We might, therefore, upon the authority of the 
cases referred to in 2 B. Monroe's Rep., sustain the survey on the 
^und of the mistakes of the locator, evidently made under the 
influence of causes well calculated to mislead him. But there are 
other reasons and other authorities upon which this entry and 'fturvey 
may be sustained. It is a well setded rule of construction, that 
where^ there are calls in an entr)^ repugnant to each other, those 
which are inconsistent with the main intention of the locator, man- 
ifested by the words of the entry, shall be rejected to give effect to 
the entry. For examnle^ distance shall prevail over course^ where 
it appears by other calls m the entry the course has been mistaken. 
Smith V. HaiTow and others, 1 Bibb, 104. A call to include a 
natural object will prevail over a mistaken distance called for to 
reach the object Freeble v. Vanhoozer, 2 Bibb, 118 ; Mclver v. 
Walker and another, 9 Cranch, 173. Testing the entry by these 
rules, has it been properly surveyed ? 

Three of the lines are natural and permanent boundaries, except 
the Ime on the river, which may be extended in length; the fourth 
is artificial and movable. It has been already shown that a line 
from the termination of the line on the branch, at B. to the river at 
£, and thence up the river to die mouth of Mayfield creek, will not 

Vol. m.— 26 R 

194 8t7PREME COURT. 

Croghaa*8 Lessee v. Nelson. 

include the quantity of land called for in tbe entry. If it is practi- 
cable, by a r^sonable construction of the entry, to give the whole 
quantity of land called for, it is the duty of the court to e;ive such 
construction. The mistakes referred to have defeated the mtentiona. 
of the locator, no doubt, as to the figure* of the survey ; but, like 
all prudent locators, he provided, as far as he could, ajpinst the 
influence of such mistakes, by requiring that the two last Imes of the 
survey should be so run as to include the quantity of land called 
for }n the entry. To these two lines he gave course, but gave no 
specific distance to either, that they might be run long enough to 
include the quantity. The first of these lines Was to run fi^m the 
termination of the base line at B, ^^ off from the branch towards the 
Mississippi, on a line parallel to Mayfield creek,'' but no specific 
distance is ^ven, nor is any natural object called for as the termi- 
nation of this line. Its termination was to be governed, therefore, 
by the relative positions of the objects previously called for, and tfie 
actual distance of the line, on the branch, fi*om the river, and by 
the hecessaiy course and distance that the first and second of these 
two lines should rup to include the quantity ; and therefore he con- 
tinues the call by saying, " until a line parallel to the first (the base 
line) will strike Mayneld creek, to include the quantity.*' The word 
*^ until," in grammatical construction, modifies and qualifies the words 
used to give course and distance, and, in leg^al construction, the 
call for course mu^ yield 'to the call for quantity, the latter being 
tbe most important call in the entry. 

The great and leading object of every entry is to obtain the 
quantity of land specified in it ; every other call, therefore, must be 
regarded as intended to eflect this principal object, and as subordi- 
nater thereto. The call, to pin a line parallel with the first, or base 
line, is, therefore, repugnant to the call to include the. quantity, 
and must be rejeeteci. Because, if this line had been run parallel' 
widi the base line, the quantit|r of land would not have been 
included. And for the same reason the words <^ on a line parallel 
to Mayfield creek" must be rejected,^ they being, also, repugnant to 
the call to include the quantity. The survey has, therefore, in our 
opinion, been made in conformity with the entry, by running from 
the mouth of Mayfield creek, down the river, to the comer at C, 
that being the distance required te include the quantity; and the 
fine fit>m B, another comer, has been properly mn to *€, that being 
the course and distanc^e necessary to close the survey and tQ include 
the quantity of land called for m the entry. It is die opinion of 
this court, therefore, that the Circuit Court ou^t to have refused 
the instmction prayed for by the defendant's counsel. 

It is ordered,, that it be certified to the Circuit Court, that the 
line firom B to C ^^ should be taken and recognised as the tme and 
proper line," and that the instmctions prayed by the defendaoxt's 
coansel ought to be refused. 

lANUART TERM. 1846. 10» 

CroghanH Lessee v. Nelson. 

Mr. Justice McLEAN. 

^^Croghan, assignee^ enters lOQO acres of land, part of a military 
warrant. No. 2023, begizkmng at a fork of Ma]/^eld creek, about 
two miles by water abore Fort Jefferson, where a branch occasioned 
by the high waters from the Mississippi runs out of said creek, 
and at hi^ water empties into the river, at the ujqper end of the 
iron^banks ; from said beginning, 500 poles when reduced to a 
straiglit Hn% and then off from me brancb towards the lifississipjn, 
on a mie pandlel to Mayfield credc, until a line from the extremity 
of said line, parallel witti the first Ime, will strike Mayfield xreek to 
include the quantity.^' 

By a statute of Kentucky passed in 1820, all entries oh military 
warrants west of the Texmessee river are required to be surveyed 
s^preeably to their calls; and any survey and patent which shall 
cover more land dian the entry c^^ for, is declared to be'void as 
to such surplus. There can he no dbjection to the validity of this 
law, as it impairs no right 

Under this statute, the court were requested to give a construction 
to the mtry in question. Hie prayer was, that the court .should 
instruct the jury, "if they believe from the-evidence that the course 
of Mayfield creek, from A to D, (the letter A being at the fork of 
die creek, the begmnii^ of the entry, and the letter D at the mouth 
of the creek,) is correc^y Isgd down, then 4he line firom B (die ter- 
mination of the first line of 500 poles) towards the Mississippi, 
diould run parallel to that, or (in other words) to Mayfield creek, to 
confom^ to the entry." 

The only diq>ute is as to the second line, which is "to run firom 
the branch towards the Mississippi, on a line parallel to Mayfield 
creek.?' And this was the instruction prayed for, and which was 
rejected by the court Had the instruction been in the very 
words of me entry, there would not have been a closer conformity 
with it 

The disputed line was called for by the entnr " to run parrllel to 
Bfayfield creek." Now one line to be parallel to another must be 
equidistant from it. And that was ^at the instruction asked. 
From th^ words of the call in the entry, as to this line, the creek 
fix>m the forks to the nfbuth must have been intended, as the line 
d^ijopated could only be parallel to'diat part of the creek. 

Tte third line called for in the entry was to run from the termina- 
tion of the line parallel to Msiyfield creek, and " parallel with the first 
Ime, so as to strike Mayfield creek to include the Quantity." As 
this line strikes the creek at the mouth, and runs on the bank of the 
Mississippi, it cannot be varied to include in the survey the thou- 
sand acres called for in the entry. There is a deficiency of one 
hundred ;tnd acres, which covers the land in controversy. And 
the question is, whether the second line called for in the entry, to 
run parallel vrith Mayfield creek, can be disregarded, and extended 


Croghan's Lessee •• Nelson. 

SO as to include the lands of the defendants and the quanti^ caUed 
for in the enty . 

In my opinion, .this can no more be done than the beginning 
called for in the entry can be changed, or the first line of the isanrey. 
The third liiie up the Mississippi was, by the entry, ^^to strike May* 
field creek so as to include the quantity." 

It is admitted that Mayfield creek, with its meanders, forms the 
closing Ime of the survey. I know of no principle in the land law 
of Kentucky which authorizeera court to disregard the specific calls 
of an entrV} so as to include the quantity designated. Ilie locator 
was, no uoubt, deceived as to the ground covered by his enty. 
The line called to be run so as to include the thousand acres bdng 
bounded by the Mississippi^ could not be varied so as to answer ibe 
caUs of the entry for quantity. This was the misfortune of tfie 
locator which is chargeable only on himself. It is clear diat he 
cannot disregard the calls of the entry, on any other line, ao as to 
include the quantity. 

The injustice of such a constructicti to the defendants, 6eems to 
me to be clear. Finding the claim of Croghan's entry de^enating 
in plain terms its boundaries, and knowing that by the law he was 
limited to the calls of his entry, his survey not having been made, 
they purchased the adjacent residuum. And I have no doubt timt, 
by the well established principles of the land law in Kentucky, their 
title is good; and, therefore, the instruction prayed for should be 

In Rays v. Daniels et al., 2 B. Monr. 222, the court say in xefer- 
ence to mis district of country, where a* patent has issued, the proof 
of a variance in die survey from tEe entry, so as to make the patent 
void, for the land not included in the entry, devolves on the ad- 
vel«ary claimant. But they do not sav, m that or in anv other cas^, 
that where the locator is lijoiited strictly to the, calls of ms entiy, hj 
a subsequent entry, or, as in the present case, by an express statute, 
ttidX the call for quantity controls the speeiJSc calls of the .entry. 
There is no principle better settled in the land law, than that the. 
calls in a survey and. patent' are iiot' affected by quantity. Ifntf 
private kad paramount right be interfered ^th, whether tne survey 
and patent contain more or less than the quantity called fpr, it is 
equally valid. An entry cannot -call for a ^eater- number of acres 
than is authorized by the warrant on which it is made ; but, where 
flie boundaries galled for are specific, and the locator is limited 
strictly to the boundaries of hip entiy, in making his survey, he can 
no more disregard them than he can disregard the boundaries called 
for tnhispateht.. 

Pdpable mistakes in the entry, such as a call for east instead of 
west, which is apparent by other calls in the entry, may be correct- 
ed. But where there is no mistake or uncertainty in -the caljs, to 
wy them is to make a new entry. This, I conceive, no court has 

J AJ^UABY TERM, 1845, lOT 

Tajlor et aL •. Uaittd flTtatet. 

power to do. An entry^Iike ereiT other instrument of writings 
must be construed by the words used. And these'Vrords can neyer 
be extended, by constmctipny so as to infiinge upon subsequent 
and hon&fidt entries. 

JoRH Taylor, Jmnoa, and Wnxuit BLAOKmnm and Co., CLAnuNTa 


^ STATfeSt DsriNDANTs m XBlunu 

It is the right of an officer of the castomt to seixe goods which are suspected 
tahave been introdaced into the country in rioUtion of the reTeane laws, not 
only in his own district, hut also in any other district than his own. ^ 

And it is wholly immaterial who makes the seicare, or whether it was irregti- 
lariy made or not, or whether the canse assigned originally for the seizure be 
that for which the condemnation takes place, proTtded the adjudication is for 
a sufficient cause. 

In the trial of such a case the officers of the customs who made the seizure are 
competent witnesses. 

A bill of lading, entry, and owner's oath concerning^ other goods than those 
seized,' may be admitted as a link in tl^e chain of endence to show a pririty 
between the parties to commit a fraud upon the rerenue. 

When<a witness on the p^rt of the United States stated, that his firm were im- 
porters of cloths, and was asked, upon a cross-examination, to state the extent 
(^ their importations, to which he answered, ** formeriy we imported large 
quantities orwoollens ; for three xxt four years past we ha)re imported but a 
few packages annually,** it was a proper question on the part of the United 
States, "whether there was any thing in dia state of the market which caused 
the alteration 1*' 

It was also a proper question, whether other goods than those seized were lying 
in the custom-house .at New York, under circumstances iVom which the jury 
might infer a connivance between parties inconsistent with fair dealing! -^ 

An invoice of other goods entered at another port, but marked like those seized, 
was also properly admitted as strengthening the evidence of the true owaer- 
ship of packages with this mark. 

To rebut the proof of a general usage of an allowanee of five per cent for meih" 
sur^ment, other invoices were properly introduced in which there waa no 
such allowance. ^ 

Where a witness was introduced to prove such usage, and had verified his pwn 
invoices, it was admissible to read a letter which had been addressed to the 

' witness and was annexed to one of the invoices. 

Beventie-laws, for the prevention of Oaud, for the suppression of a public 
wrong, or to efi*ect a puhlic good, are not, in a strict sense, penal acts, al- 
though they impose a penally. But they ought to be so construed as most ei^ 
Ibctually to accomplish the intention of the legislature in passing them, in- 
stead of being construed with great strictness iu fartour of the defendant 

Concealment and Qiider>valuation of goods are good grounds, amongst others, 
for a decision ot the court, that probable cause. of prosecution existed. 

The 68th section of the act of 1709 reaches cases where, by a fiUse and ftaudo- 
lent under-valuatidn,less than the amount of duties requited bylaw haa beta 
-paid as weU as those where no duties at all have been paid. 

This case came up by writ jof error from the Circuit Court of tua 
TUitad S^des for the eistem district of PeDiurrlTaiua. 


Taylor et el. v. United States. 

It Vfzs an information filed in the District Court of the United 
States for the eastern district of Pennsylvanui against sundry cases 
and pieces of cloths and kerseymeres, seized on land, as forfeited.. 
The mfotmation contained thirteen counts. 

* The first and second were founded on the 50th section of the 
•act of 1799, chap. 128. 

The third on die 68th section of same act. 

The fourth and fifth on the 66th section of same act 

The sixth, seventh, and eighth on the 4th section of the act of 
28th May, 1830, chap. 147. 

The nmth on the 14th section of flie act of 14tii July, 1832, 
chap. 224. 

The tenth on the same section as fourth and fifih. 

The eleventh and twelfih on the same section as sixth, seventh, 
and eighth. 

Tlie tiiirteenth on the same section as ninth* 

Upon the first and second counts the jury found a verdict for the • 
claimants, and upon the remaining counts for the United States. The 
claimants were John Taylor, jun., and William Blackbume & Co. 

The claims filed were as follows : — 

" John Taylor, jun., late of the city of New York, but now absent 
from flie United States, by Edward Henry Bradbury, his attorney in 
fact, comes and claims the said goods, wares, and merchandise, in 
the said information and-libel mentioned as his property ; (subject 
to the repayment of a certain advance or loan of sixty thousand 
dollars and upwards, thereon made to him by William Blackbume 
& Co. ;) and the said John Taylor, jun., by his said attorney, alleges, 
that at the time of tlie seizure aforesaid he was, and yet is the true 
and lawful owner of the said goods [wares] and merchandise, sub- 
ject as aforesaid. j^^ ^^^^^ j^^ 

^* October^ lOlhj 1839. Pr. pro E. H. Bradbuky. 

" Edward Henry Bradbury, being duly sworn, says, the facts 
above set forth are just and true, to me best of my knowledge and 
belief. I am the duly authorized attorney in fact of the above 
named John Taylor, jun. He was absent from the United States 
at the time the seizure of the above mentioned goods, wares, and 
merchandise was made, and has ever since contmued, and still is 
absent from the United States. „ j, jj Bkadbitby. 

*^ Sworn, October 11th, 1839, before me. 

** Ptr. Christian, Alderman. 

<^ William Blackbume & Co. claim the said goods, wares, ahd 
merchandise, in the said libel and information mentioned, as the 
sole property of them, the said William Blackbume & Co., for the 
purpose of securing and pa}'ing an advance or loan thereon made 
oy them to John Taylor, jun., of sixty thousand dollars and up- 


Taylor et aL v. United States. 


wards; for securing which said loan or advance the said goods 
{wares] and merchandise were delivered to them, long hefbre the 
said seizure, bythe said John Taylor, jun., in whose possession they 
were as his property, lUid remained in their possession as aforesaid 
at the time of said seizure, without any notice or knowledge on 
their part Uiat there was any allegation whatever, that the same had 
not been duly imported, and the duties paid or secured ; or, that 
die ^same were on any account liable to seizure, and under the full 
and entire belief, on their part, that the said goods [war^l and 
merchandise had been duly imported and entered,, and the duties 
thereon paid or secured according to law. 

<(ktoberl0th,m9. «Wm.Bi^oebubke&Co. 

^^ Francis Blackbume, being duly sworn, sajs, I am a member of 
the firm of William Blackburn^ & Co., mentioned in the foregoing 
claim. The &cts stated m the fore&|oing claim are just and true, to 
the best of my knowledge and benef. The said firm of William 
Blackbume & Co., at and before the time of the seizure of the 
goods and merchandise mentioned in the said information and libel, 
was composed of William Blackbume, Francis Blackbume, Christo- 
pher John Blackbume, and Charles F. Shaw ; since that time the 
said Charles F. Shaw has retired firom said firm and is no longer a 
member thereof. ,, j^ Blackbuene. 

« Swom, October 11th, 1839, before me. 

^^ Ptb. Christian, Alderman. 

<^ And now, , comes John Taylor, jun., and, by 

leave of the court first had, withdraws so much only of his claim 
heretofore filed in this case as relates to forty-three pieces of cloths, 

{lart of the goods above mentioned, and on behalf of James Buckl- 
ey, claims twenty-nine pieces of cloth, part of said forty-three 
Sieces, as the property of the said James Buckley, and on behalf of 
ohn W. Bradbuiy, claims fourteen pieces of cloths, the residue of 
the said forty-three pieces, as the property of the said John W. 
Bradbury ; and the said John Taylor, jun., says, that the said Buck- 
ley and Bradbury are respectively the tme, sole, an J lawful owners 
of the respective parcels of cloth herein above claimed for them re- 
spectively, and, SQ, bein^the owners, respectively consi^ed the said 
several parcels to die said John Taylor, jun., who, as their consimee 
and factor, at the time of the seizure aforesaid, held, and is still en- 
titled to- hold the same, subject to the repayment of the advances 
made thereon by William Blackbume & Co., in whose actual pos- 
session they then were. And the said John Taylor, iun., further 
says, that the said Buckley and Bradbuiy are both resident in Eng- 
land, and were, at and before the time of said seizure, and now 
are, absent from the United States. „ j^^^ r^^^^^ j^ 


Taylor et |lL v. United Btaiet. 

^^ John Taylor, jun., being dulj sworn, says, that the facts above 
set forth are true to the best of his belief. 

" John Taylor, Jim. 

<^ Sworn .and subscribed before me, February ^2th, 1840. 

" WitxiAM MiLNOR, Alderman.'' 

In March, 1840, the case Qame on Yor tridL Some of the points 
of law which were raised are thus stated in the record : And the 
counsel of the said plaintifls, to support a^ provt-the issue on- their 
part, called as witnesses John J. Logue, George Gideon^ and Wil- 
liam Cairns, i)(rho,l)eing respectively sworn on their voir dire^ testi- 
fied that they went to Blackbume's store, and there assisted in maldne 
the seizure of the goods mentioned in die said information ; the said 
Logue and Gideon stating that they were, at the time of making said 
seizure, inspectors of the customs m the district of Philadelphia, axid 
the said Cairns stating that he was, at the time of making said 
seizure, an inspector of the 'customs in the port of New xork. 
Whereupon, the said defendants objected to the admission of said 
Logue, Gideon, and Cairns, severally^ as witnessed for the plaintiflji, 
they being interested in the. event of the case. But the judge over- 
ruled the said objections and admitted the said witnesses, to which 
admission the defendants then and there excepted; and the\said 
Logue. Gideon, and Caihis were thereupon severally^ bwom and ex- 
ammea on behalf of the plaintiffs, and proved the faqts attending 
the seizure of the goods, and that certain original maiks on pack- 
ages containing the said goods had been erased, and among them 
the mark [B]F, which was originally upon one of said packa£;es. 

In the course of the examination of the said witnesses, the mllow- 
ing papers were produced and given in evidence, being Ihe affidavit, 
virarrant, and autnority under which the seizure of the said goods 
was made, viz. : A list of the goods seized, affidavit of William 
Cairns, warrant of Alderman Mflnor, authority from George Wolf, 
esq. collector of the port of Philadelphia. It was also proved t^ 
the greater part of said goods were seized in an apartment in the 
second story of the house No. 26 Church alley, adjoining the house 
No. 24 Church alley, which apartment was occupied by the' house 
No. 24 Church idley^ into which a. doorway h^d been cut, the com- 
munication between said apartment and the remainder of the house 
J>Io. 26 Church allev being closed. 

The counsel of the United Statep, farther to prove the i^bue on 
&eir part, offered in evidence the bill of lading, entry, and owner's 
oath, taken on the 16th of July, 1839, in the month preceding the 
seizure of the goods in question, of nineteen cases of goods, (not 
part of the goods seized^) marked [B]F 1 a 19. To all which the 
said defendants objected ; but the judge overruled the objection, and 
admitted the^same in evidence. Whereupon the said papers were 
read in evidence. 

[The counsel of the United States, fiu&er to prove the issue on 

JANUARY TERM, 1845, m 

Taylor et aL v. United Statei. 

&eir parts, offered evidence to prove that WiUtam Blackbtmie 
& Co. hady in January, 1839, imported certain invoices (no paii of 
the goods seized) into I%iladelphia, and had entered them at the 
custom-house there ; that the goods so imported had been appraised 
above the invoice prices ; that the importers had acquiesced m such 
appraisement ; and that Francis Blackbume thereupon stated that 
he had passed 140 cases at New York at similar prices, and would 
cease importing goods here ; the counsel stating that this was to be 
followed by evidence to show that he never md import into New 
York in his own name. AH which evidence was objected to by die 
defendants^ but was admitted by the court, to which the defendants 
then and diere excepted ; and the said evidence was ^thereupon 
given. ' And die plaintifis further proved. the adinission of the de* 
^ndant Taylor, that the said mark [B]F was'the maik of said de« 
fendant Francis Blfickbume, and that said Tavlor, as the agent of 
said Blackbume, had paid freigbt at New York for packages of 
goods imported there with that mark; and further proved that no 
importations had been made at that port in the name of said Francis 
Blackbume, or of said WilU&m Blackbume & Co., previously to 
die summer of 183d, but that large importations had been made 
there in die name of- the claimant, John Taylor, jr. It was proved 
that the goods seized had been imported into New York, and en* 
tered and pa^d there, and the duties' thereupon paid, but it was no 
part of ibfi evidence or case of the United States, diat there had 
been any fraud or connivance on the part of the officers of the cus- 
tom-house of New York with the importers of said goods.] 

Abraham I. Lewis was examined as a witness on behalf of the 
United States; and having stated that his firm were importers of 
cloths and kerseymeres, and that he had thereby a knowledge of 
tileir quality and value, he was asked, on cross-examination, to state 
the extent of the importations of his firm; and in reply, sud: 
^< Formerly, we imported large (quantities of woollens ; for three, 
four, or five years past, we have imported but a few packages an* 
nually.'* miereupon the counsel of the United States, on re-ex- 
amination, proposed tha following question, viz. : ^' Was there anv 
thing in the state of the market which caused the alteration ^^^cb 
you have mentioned, in the amount imported by you within four or 
five years last past ?'' To which question the defendants objected. 
But the jildge allowed the question to be put, saying, the question 
may have a bearing on the case, &c, ; that it was but following out 
the question on me cross-examination. To which decision the 
defendants then and there excepted. Whereupon the said question 
was put to the witness, and answered by him. 

The counsel of the United States further offered to prove, by the 
oath of David Gardiner, thai certain goods marked [BIF, .which 
had been imported into New York In the ship Eutaw, being the 

me on whidi defendant Francis Blackbume was alleged to have 

You m— 26 


Taylor et al. v. United States. 

paid the fi^ight a$ aforesaid, i^ere still in the- custom-house at New 
York. To which the defendants objected. But the judge over- 
ruled the objection, and admitted the eyidence; to wluch decision 
the defendants then and there excepted. Whereupon the said evi- 
dence was given. 

The counsel of the United States further offered in evidence an 
invoice of merinoes (not part of the goods >nentioned ia the in- 
formation) bought of Abel Shaw, entered in Philadelphia by*Wm. 
Blackbume & Co., by ship Franklin, on the 19th August; 1839, 
marked [B]F, 35 a 53, offered as strengthening the evidence of ihe 
ownership of packages with this mark. To which the defendants 
objected. But the judge admitted the evidence ; to which decision 
the defendants then and there excepted. Whereupon the said in- 
voice was read in evidence. 

And the counsel of the United States, in rebutter, offered in evi- 
dence invoices of Blackbume, Taylor, and Okie & Robinson, to 
show the absence of any such custom as to the allowance of Eve 
p. c. for measurement, as had been testified to by the witnesses 
on the part of the defendants. Which evidence yas objected toby 
the defendants. But the objection was overruled by the court, and 
the said evidence was admitted ; to which decision the defendants 
dien and there excepted. Whereupon said invoices were read. 

The defendants produced and examined John Robinson, of the 
firm of Okie & Robinson, and Robert Walker, to prove an alleged 
usage of trade, in England, to make a discount of allowance of 
five per cent, for measure on cloths and cassimeres ; said Robert 
Walker being cross-examined, several invoices of his own importa- 
tions into the port of New York wiere shown to-and verified by him : 
and the said invoices were placed by plaintifis' counsel in the hands 
of the counsel of the defendants, and one of said invoices was read 
by the coimsel of the United States to the jury. The coimsel of 
tiie United States, pending this cross-exammation, offered to read 
to Hie jury a letter from one Waite to the witness, which accompa- 
nied and was annexed to one of the said invoices, and left there- 
with in the New York custom-house, on which the goods had been 
entered, and referring to the said invoice. The reading of which 
letter in evidence was objected to by defendants. But the court 
admitted the same to be read to the jury ; to which decision the 
defendants' counsel excepted. Whereupon the said letter was read 
in evidence. 

And the counsel of the United Stales further offered in evidence 
the several invoices which had been shown to defendants' witness, 
Robert Walker, during his cross-examination, and had been verified 
by him, of goods consigned to and imported by said Robert Walker 
into New York ; the said invoices having been shown to the counsel 
for the claimants, and one of them read to the court and jury, with- 
out objection on the part of the claimant to any of them ; which 

JANUARY TERM, 1846. 908 

Taylor et al. v. United States. 

being obiected to by defendants, the judge said that he cpnsidered 
them to be akeady in evidence, inasmuch as one had been read to 
the Jury, and the others shown to the witness Walker, verified by 
him, and shown to the counsel of the defendants, and all w6re 
offered for the same purpose, and. that the paners sdiould be con- 
adered in evidence. To which decision the aefendants then and 
there excepted. Whereupon the said invoices were read to- &e 

And the judge charged the jury. 

And thereupon the defendants' counsel excepted to the said 
charge generally, and to every part thereof; and in addition to 
said general exception, and without prejudice thereto, specified the 
following exceptions, to wit : 

That me judge, in his said chargje, instructed the iuiy — 

1. That the whole proceeding in the seizure of the goods in 
question was, and substantially, m conformity with the act of Con- 

2. That the objections made to the proceedings are immaterial 
to the issue now trying. 

3. That the entry of the goods at New York, their appraisement 
at the custom-house there, me payment of the duties according to 
that appraisement, and the delivery of the goods thereupon to the 
importers, were not conclusive against the United States in this 

4. That the revenue acts mentioned in this information are not 
strictly penal laws. 

5. That the duties on the goods were not paid within the meaning 
of the 68th section of the act of 1799, (although they had been 
passed at the custom-house of New York, and the duties there 
assessed upon them had been paid, according to the value and 
prices in the invoice,) if the jury should be of opinion that they 
were not invoiced at Uieir fair and true cost and value. 

6. That the provision of the 66th section of the act of 1799^ 
mentioned in the charge, was not repealed. 

7. That under the act of 1830, when a package or invoice has 
been made up with intention to defraud, ^e package or invoice 
(that is, the goods contained in the invoice) are forfeited. 

8. Tliat the probable cause mentioned in the 7th section of the^ 
act of 1799, is not a cause existmg and known to the persons by 
whom the seizure was made, antecedent to the seizure, and which 
was ibe warrant and ground of the proceedings. The probable 
cause intended by tbie act has no reference to the seizure, but to 
the trial. There must be probable cause for the prosecution, not 
for the seizure, and the court is td judge of it by what appears to 
the court — ^by what comes to the knowledge oi the court on the 
trial of the prosecution. 

9. That the United States have shown {Nrpbable cause for the 


Taylor et ai. v. United States. 

prosecution, and that Hit onus probandi was thrown upon the claim- 

10. That it was not necessairy to affirm or deny the doctrine that 
there can be but one official appraisement of the goods, and that 
that must be made in the custom-house at which the goods were 

11. That, die first step in thei inqniry whether the goods are 
invoiced at their actual cost, is to ascertain "^liat was their actual 
cost ; and how has this been done on the part of Ihe United States? 
By certain §ppraisements made, in the first place, by official, appraisers 
of the custom-house of this city ; and further, by private appraisers, 
selected for that purpose. If die opinions of Messrs. Stewart and 
Simpson (the official appraisers at the port of Philadelphia) have not 
the authority of an official appraisement or act,, they have, neverthe- 
less, thcs weight of the judgment of men accustomed to other goods 
of this descnption, and who, from the appointment, as well as thehr 
experience, may be presumed to have competent knowledge and 
skill in ascertaining their value. In this light the jury may consider 
their evidence, and give credit to it accordingly. 

And thereupon, the counsel for the said claimants did then and 
there 'except to the aforesaid charge and opinions of the said court ; 
and inasmuch as the said charge and opinions,' so excepted to, do 
not appear upon the record, the said counsel for the said claimants 
did then and (here tender diis bill of exceptions to the opinion of 
the said court, and requested the sed of the said judge aforesaid 
should be put to the same, according to the form of the statute in 
such case made and provided. 

And thereupon, the aforesaid judge, at th6 request of the said 
counsel for the claimants, did put his seal to this bill of exceptions, 
pursuant to the aforesaid statute in such case made and provided. 

Jos. HOPKINSON. [l. 8.] 

Meredith and Crittenden^ for the plaintiffs in error. 

Cadwallader and JWlson^ attorney-general, for the United States. 

The Reporter was unavoidably absent, and therefore cannot report 
the arguments of the respective counsel. 

Mr. Justice STORY delivered the opinion of the court 
This is a writ of error to the judgment of the Circuit Court of the 
eastern district of Pennsylvania, affirming the judgment of the Dis- 
trict Court founded upon an information in rem against certain cases 
of cloths and cassimeres seized on land in the said district. The 
cause was tried by a jury, who returned a verdict for the United 
States, upon which the judgment was rendered. 

The information contained thirteen counts. The first and second 
counts were founded on the 50th section of the Duty-Collection Act 
of 1799, chap. 128; the thii*d count was founded on the .68th sec- 

^ JANUARY TERM, 1845. M6 

Taylor et ak v. United States. 

lion of the same act ; the fourtb, fifth, and tenth counts were found- 
ed on the 66di section of the same act ; the sixth, seventh, eidith| 
devendi, and twelfth counts were founded on the 4di section of the 
act of the 28th of May, 1830, chap. 147 ; and the ninth and thir- 
teenth counts were founded on the 14di section of the act of the 
14th of July, 1832, chs^. 224. The claimants put in a plea or 
answer denying the allegations in the information, upon which an 
issue was tendered and joined, and tried by the juiy. 

At ihe trial, certain exceptions were taken ,to the matters ruled, 
and to the charge riven b^ the learned judge who presided at the 
trial, the form and mme of ^Uch exceptiops, as propounded by the 
counsel, we do not propose to examine ; and the questions submit- 
ted to us arise firom the matters of law thus ruled and contained in 
his charge. With the comments of the learned judge upon the 
evidence, except so &r as they involved matters of law, we have 
nothinff to do, as thf y were submitted solely for the consideration 
of the jury in wei^iihg the evidence, of whidx they were the proper 
and final judges. 

In the course of the argument in this court, an objection was 
insisted on, that the seizure itself upon which the information is 
founded, was irregularly and improperly made, it having been made 
by die collector of the customs of the port of Riiladel^ua, when it 
snould have been made by the collector of the customs of the port 
of New York. And some reliance in support of this objection seems 
to have been placed upon the supposed mtention of the 68th section 
of ihe Duty-Collection Act of 1799, chap. 128. But if any reliance 
could be placed thereon, yua we think it could not,) it would be 
completely removed by^the 70th section of the same act, which 
makes it the duty of the several officers of the customs to mate 
seizure of all vessels and goods liable to seizure by virtue of that act 
or any other act respecting the revenue, as. well without as within 
&eir req>ective districts. So that it is plain from this provision that 
a seizure made by any officer of the customs of any district would 
be good, although made within any other district. And the whole 
structure of the act shows that any officer of the customs had a per- 
fect right to seize goods found in his own district, and indeed that 
it was his appropriate duty. ^ 

But the objection itself has no iust foundation in law.. At the 
common law any person may, at his peril, seize for a forfeiture to 
the goveroment, and, if the government adopts his seizure, and 
institutes proceedings to enforce the forfeiture, and the property is 
condemned, he will be completely justified. So that it is wholly 
immaterial in such a case who makes the seizure, or whether it is 
irr^ularly made or not, or whether the cause assigned originally 
for the seizure be thsft for which the condemnationjjt^es place, pro- 
vided the adjudication is for a sufficient cause. T)iis doctrine was 
fuUy recognised by this court in Hoyt t;. Gelstcli^ 3 Wheat 247} 

S ' \ 


Taylor etal. o. United States. 

310, and in Wood v. United States, 16 Peters, 342, 358, 369. And 
torn these decisions ^e feel not the slightest inclination to depart 

Indeed, if the objection could under any circumstances be main- 
tainable, it was matter that sh6uld have been propounded as preli- 
minar}' matter in the nature of a plea in abatement of the information, 
and could constitute no point oefore the jury upon pleadings ad- 
dressed to the merits of the case, and involving the direct question 
of forfeiture or not. 

In the course of Ihe trial several objections to the competency of 
certain witnesses, and to the admissibiuty of certain evidence, ofl(ered 
on behalf of the United States, were taken by the claimants. 'In 
the first place an objection was taken to the competency of John J. 
Logue, George Gideon, and William Cairns, called to support the 
issue on behauf of the United States, they being officers of the cus- 
toms and the persons who niade the seiisure of the goods in contro- 
versy. By the 71st section of the Duty-Collection Act of 1799, chap. 
128, the anus probandi to establi^ the innocence of the property 
is thrown upon the claimant in all cases where probable cause is 
shown for the seizure and prosecution. And by the 89th section 
of tiie same act it is provided, that when in any prosecution on ac- 
count of a seizure judgment shall be given for the claimant, if it shall 
appear to the court belore whom such prosecution shall be tried, thai 
there was a reasonable cause of seizure, the court shall cause a certi- 
ficate and entry to be made thereof; and in such case the penson 
making the seizure, or the prosecutor, ^all not be liable to any action, 
suit, 6r judgment, on account of such seizure and prosecution. The 
argument, merefore, on behalf of the claimant is, mat these witnesses 
are incompetent, they being interested in the event of the suit, and 
being liable to an action at tiie suit of the claimants, if reasonable 
cause for the seizure was not established, and that their testimony in 
effect would conduce to establish such reasonable cause. 

Several answers may be given to this objection. In the first place, 
it is not true, that the mere liability of a party to an action in one 
event of a suit will constitute of itself an absolute or universal objection 
to his competency. There are many exceptions to the rule on tWs sub- 
ject, founded upon necessity, or public policy, or the remoteness, 
the uncertainty, or the contingent nature of the liability. The pre- 
sent case falls directly within these exceptions. The witnesses were 
acting as the agents of the government in making the search 'and 
seizure ; they alone could give testimony as to the facts attending 
such search and seizure, and were, therefore, witnesses firom neces- 
sity; and their acts being adopted or authorized by the government, 
public policy requires that the govempient should have the means 
of enforcing its own rights through the instrumentality of their testi- 
mony. Their competency for such purposes falls directly within the 
reasoning of the Court of King's Bench in the case of The King v. 
Williams, 9 Bum. & Cres. 549, and the case of United States v. 

JANUARY TERM, 1816.1 M7 

Taylor et al. «. United State!. 

Mnpbj^ 16 Peters, 203, indiere the sabject was considered very 
miidi at large. 

In die next place, the witnesses were not objectionable in point 
of compet^cy on account of any ihterest in the event ort&e cause. 
Their interest, if any tibey had, as informers or o&erwise, in the for- 
fiBiture, was completely removed by die proTioion of the 9l8t section 
of the Daty-Cdlection Act of 1799, chap. 128, which, when the^ are 
nsed as witnesses,* takes away from them the share of the forfeiture 
to which diey wpnlc^ otherwise be entitled. In tbe event of the suit, 
therefore, they had no interest, for the suit was solely to enforce the 
forfeiture. Ine question, whethc;r &.9te was nrobable or reasonable 
cause fdribe seizure, constituted no part of thc^ issue to be tried by 
the jvy. So -ftr Bs it reelected throwing the onta frobandi upon 
the clsunants, it was t matter solely for the consideration o[ the court 
in the pro^^ress of the'triid, and collateral to the main inquiry, al- 
thoQ^ of great inqportance in regulating the niature and extent and 
suffioenqr of the e^ence. And so for as respected the certifi- 
cate and entry ^. reasonable cause to protect the seixorp from foture 
lirixility.for.tfae seizure, it'^sno part of the issue, and, indeed, was 
an 0Ksi to be. donC: bv the court before whom the prosecution was 
tr^i, only in case iudgment upon the verdict should oass for the 
claimants; and it, uierefore, was plainly an act to be done and in- 
quiry to be had posterior to ^ tnal. 

' In the next ^ace, the objection taken was to the competency of 
die witaessesj i^ such, for any purposes in die cause, lliey were 
not nailed by the government as witnesses to give evidence of mat- 
ters phowing reasonable or probable cause ior the seizure, but as 
witnesses generally '^ to support the issue on.tfae part'' of the govern- 
ment If competent for any purpose upon die trial, ihify could not 
be rejected generally ; and diat they were competent to prove V the 
&^ attending the seizure of &e ^oods, and that certoin original 
marks on packages containing the said goods had been erased, and 

Cong' them the mark [B]F, which was oririnally upoti one of the 
1 packages," cannot m our judgment, admit of any just doubt. 
It could, make no di£^rence as to thdr admis^ility for these, pur- 
poses, that' oollaterally these- foots mi^t bear upon the question of 
ptobable or leasotiable cause or not 

In the next place, there was anotheif and independent ground 
upon whidi then: coi^tency is clear. Jt is, that diey #ere acting 
under a search-warrant in making the search and seizure-, which 
wo^d undoubtedly, tinder the 68th section of the same act, be a 
complete protection to diem against all liability to an v suit there- 
foor, unless indeed in a -case where the witnesses acted from malice. 
and also without probaUe cause ; and the absence of either would 
exonerate them from all liabili^. So that in diis view their liability 
remote, contingent, and uncertain; 


Taylor et aL v. TJiij(e4 States. 

Upon idl these grounds w^ are of opinion, that the witnesses were 
clearly admissible. 

Ahother objection was to the admisabifity of a bill of lading, en- 
tiy, and owner's oath, taken on the 16th of July, 1839, in the month 
preceding the seizure of the goods in question, of nineteen cases of 
eoods (not part of the goods seized) marked [B]F, 1 a 19. AI- 
mough this evidence was objected to, and it. was admitted, yet it 
does not appear ui)on the record, that anjr exception was taken to 
the ruling. But, without dwelling upon this, which was periiaps fm 
accidents omission, it is proper to say^ that this evid«ice was not 
offered as a single, isolated document, (for in that yiew it mi^t be 
.deemed at most as irrelevant and inconsequential for any purpose j) 
but it was ofiered in connection with other doc\im^nts and evidence 
to establish a privity between Taylor and Blackbume & Co. in oth^ 
importations of a kindred character, and imder a sdieme of medi- 
tated fraud upon the revenue of the United States, of which these 
documents were a link in the chain. For this purpose thev m^ht 
be important and necessanr; and although the whole evidence 13 
not set forth in the record, is apparent, from what is there 
found in reference to the next objecdon, that the evidence had ui 
intimate connection and bearing upgn that whidi is there stated. 

The objection here alluded ta is in the record stated in the follow- 
ing words : " The counsel of the United States'' — ^fsee the paiapjaph 
in the statement of the Reporter which is included within bra<£etB.] 
Now, we think the exception to this evidence was properly over- 
ruled, aiid the evidence admissible to establish the connection be- 
tween Taylor and Blackbume in other importations as well as in the 
importation of the goods now in <;ontrov€!rsy, and also to displace 
any presumption that the acts of the one were not properly to be 
deemed attributable to any connivance with the other, or that they 
were pot jointly interested in the saine scheme of importations, and 
mutually cogmsant of the; desi^ of each other. What eflect this 
evidence, ought to have Mter its admission in the cause^ taken hi 
connection with the other evidence, was a matter for the considera- 
tion of the jury alone; but of its admissibility for the purposes above 
stated. we entertain no doubt.' It is, indeed, a. strange onuteicm in 
the record, that the other evidence in the case is not therem folly 
stated, lior ^e points, id which it was adduced, suggested, so that 
we are left to conjecture from very imperfect materisus what was the 
true extent and bearing of the various matters excepted to as im- 
proper evidence. 

. Another objection is to a question put to Abraham J. Lewis, a 
lRi:itnJess on behalf of the United States, who, having stated that his 
firm were importers of cloths and kerseymeres, and that he had diere- 
by a knowledge of their quality, was adced,^on cross-etamination, 
to state the extent of the importatipAs of his firm; and in reply he 
said, ^^Fonnerly we imported large qiiantititi^ of woollens; for 

JANUARY TEBM, 194ft. M» 

Tirf lor et aL «• United Btatei. 

diree or fo«ir yean past we hare im(k>rtedlHitt£n7pacIai^ 
aDy.'' Whereopon die counsel f<Mr die United States, on re-ezami» 
nation, proposed the foDowniff question, Tiz.: *< Was there any thfaig 
in die state of the maiket, '^ch caused die alteration which you 
hare mentioned in die amount Imported by you widun four of fire 
jrears la^ past?^ to which question die dainumls objected ; but the 
vidg^ allawed die- question to be put, saving it might have some 
beanng on the case, and that it was .but ioUowin^ out die question 
put on the cross-examination. We think the decision of die court 
was perfecdy correct, for the reason stated by the judge. The an- 
swer mig^ show that the witness had ceased to import so largely, 
not from want of sIdU or capital, but for reasons Which miiHht con- 
nect themsdres with die importations of ttie^ claimants. What the 
answer was we do not know; and certainly it could be no just 
gitrand of exception, that the answer was such as had no beanng 
either way upon die merits of die case, and ufirtiari not, if finrour- 
aUe to tlie claimants. 

Another objection was to diradmisnbility of the eridence of Dft- 
Tid Grardner, ^i^ was offered to prove diat certain eoods, marked 
[FJF, idiichhad been imported mto New Yoxk,*m the ship Eutaw, 
bemg the same on which Francis Blackbume was alleged to have 
"paid the freig^ were still in ibt custom-house at New York. We 
diink that this evidende was properly admissible, for the same reasons 
as those which have been already stated. It was a part of the rt$ 
ftsim. If die other parts of the evidence were &vourable to the 
mnocence of die claimants in their various importations, then no con- 
duaion aeainst than could Mrly be drawn from this fact But if, 
on the odier hand, strong circumstances of suqiidon of fraud at- 
tached to odier importations, then the circumstance, so contrary to 
die usual course of mercantfle transactions in cases dP perishable ar- 
ticles, or articles liable to depreciation or decay, of their remaining 
long in the custom-house, might fairlv be deemed to inflame those 
suspicions, especially if in the interval the government was on the 
alert to detect supposed frauds in ^dier importations. 

Another objection was to the admisBion of the evidence of an in- 
voice of merinpes, (not part of the goods mentioned in the informa- 
tion^ entered in FUladelphia, by filacUume & Co., and marked 
[BiF, 36 to £3, ofibed as strengthening the evidence of the own- 
enmip of packa^ widi this mark. In this view we can perceive 
no possible question as to the competency or propriety of the evi- 

Anodier obiection was to the admissibility in evidence of certain 
invoices of Blackbume, Taylor, Olde & Robinson, to show the ab- 
sence of any such usage as to the allowance of five per cent, for 
measurement, as had heen testified to by the witnesses on the part 
of the claimants. We see no jtrat ground of exception to the ad- 
misribility of such evidence. The usage set up was of a general 

Vol. m.— 27 s2 


Taylor et aL «. United States. 

nature, and all evidence /which went to establish the wuit of tMcfa 
generslih', by pToof of the n(»i-existence of such a deduction in in* 
voices of a similar liaturer— where, if it was general jmd well known, 
it ought to be found — was certainly admissible to tebut the pie- 
munptions derived from the adverse proof. The same answer msry 
be given, and indeed implies more forcibly, to &e evidence given 
by Robert Walker, a witness for the claimants, who, upon his crosiK 
examination, verified several invoices of his own importations into 
^e port of New Yoik ; and also a letter of one Waite, annexed ta 
one of the invoices. ' The introduction of this letter was objected to ; 
but it was an accompaniment of the invoice introduced witlu>ut <d>- 
jeclion, and it was olSered not in chief, but as qualifyinja; and rs^iel- 
Img the evidence offered by. the claimants as to the ^e per cent 
nsase — ^founded, among that of others, upon the very testimony of 
Wi&er. The other invoices verified by Walker were, for the same 
reason, in our judgment, equally admissible. 

We have thus ^one over the vario\is objections taken to the com- 
petency and admissibility of the testimony in this case; some of 
which, considering all the circumstances of the case, can scarcely be 
treated otherwise uan as being tn/er apices jurit; and shdl now pit>- 
ceed to examine the exceptions taken to the char^ of the court 
Of many of diese it is unnecessary to take any special notice, since 
they have been already disposed of in the case of Wood tu Umted 
l^ates, 16 Peters, 342, or have incidentally fSsdlen under notice in 
the preceding parts of this opinion. Upon the point that ttie reve- 
nue IlBiws, on which the information was founded, were not, as tfie 
judge in the court below su^ested, to be deemed penal laws in the 
sense in which that phrase is sometimes used, it may be proper to 
s^ a very few words. Re treated the point as not of great import- 
ance in the case, as we think it was not^ since it had no t^idency 
to change the interpretation of the provisions of the revenue laws 
dien under his consideration. In one sense, every law impoiBing a 
penalty or forfeiture may be deemed ft penal law; m another sense, 
such laws are often deemed, and truly deserve to be called, teme- 
dial. The judge was therefore strictiy accurate, when he stated 
that ^^ It must not be.understood that every law which imposes a pe- 
nalty is, therefore, leeally spealdng, a penal law, that is, a law idnch 
is to be construed witii great strictness in favour of the defendant. 
Laws enacted for the prevention of fraud, for the suiqpression of a 
public wronff, or to effect a public good, are not, in the strict sense, 
penal acts* althoudi they may inflict a penalty for violating them.'' 
And he added, ^^It is in this lig^t I view the revenue laws, and I 
would construe tiiem so as most effe<$tually to accomplish the inten- 
tion of the legidature in passing tiiem." The same distmction will 
be found recougnised in me elementary writers, as, for example,, in 
Blackstone's Uommentaries, (I BladL Comm. 86;) and Bacon's 
Abridgment^ (statute I. 7, 8;) and Comyns' Digest, (Farliameiit R. 

JANUART TERM, 184ft. 911 

Tajlor et aL «. United States. 
13^ R. 19^ R. 5M> ;) and it is alio abondantly sapported by tbe aa« 

The main exception boweyer to tbe charge is as to the ruling of 
ttie judge that there was probaUe cause of seizure, and that, there- 
iote^ the onus probandi to establish the uinocence of the importation, 
and to r4>el die supposed forfeiture, was upon the claimants. We 
entiiely concur in me opinion of the judge, in his views of the evi-t 
denoe as applicable to this point. . He, and not the juiy, was to 
jud^ whether there was probable cause or not to throw die onui 
frwHUhdi on fte claimants; for the 71st section of the act of 1799, 
chi^. 128j ezpresdy dedareiS that ^^ the oiutt probandi shall lie on the 
claimant only where pirobable cause is shown for such prosecution, 
to be judged of by the court before whom such prosecution is to be 
had." £ our Judgment, the circumstances were abundantly suffi- 
cient to iustify him, nay, to requii^ him to throw the omtf probandi 
on the claimants. The extraordinary circumstances connected with 
the concealment of the goods, the prevarications and false statements 
of Blackbume, and the undervaluation of the g6ods, all required the 
most plenary proqfii on the part of the claimants, to deliver die pro- 
perty from the perils by which itwias surrounded. The original 
cost of the purchases could have been fully proved by the claimants, 
if the transactions were bona fide purchases ; and they had the most 
amjde means within their power to establish it. Taylor and Black- 
bume were so completely mixed up in these transactions, as princi- 
pals -and agents, or as jomt principals, that the acts of the one might 
most jusdy be attributed io the odier ; and in &ct they admit of iio 
reasonable separation as to design or privity of co-operation. 

Thete is but one other exception remaming, which requires any 
floecial notice. It is whether tlie 68th section of the act of 1799,. 
cmap, 128, was mtended to reach, or does reach cases where, by a 
fiJse and fraudulent undervaluation, less dian the amount of duties 
required by law has been paid, or whether it applies only to cases 
where no duties at all have been paid upon the goods. In our 
opinion, the section was* designed to apply equally to both cases. 
In die B&aae of that section aU goods are forfeited on which, bv 
fraud, aD the duties shall not have been paid, or secured to be paid, 
iriiick are by law reauired to be paid or secured thereon. 

Upon the whole, the judgment of the Circuit Court is affirmed. 



▲L.9 DivsHiiAirn nr Euiob. 

The ttlinilition contained ia the 6Ui section \>f the act of Congress, passed on 
the Sd of Mareh, 1810, for the admission of the state of Alabama into the 
nnion,-Tii.: ''that all narigable waters within the said state shall for erer re- 
main public highwajs, free to the citizens of said states and of the United 
States, without any tax, dnty, impost* or toll therefor, imposed by said state," 
conreys no more power oyer the nayjgable waters of Alabama, to the 
goremment of the united States, than it possesses orer the naTigable walrft 
of other states nnder the prorisions of the Constitotion. 

And it leares as nrach ri|^t in the state of Alabama orer them as the original 
stktes possess orer narigable waters within their respectiTe limits. 

The shores of narigable waters, and the soils nnder them, were not granted by 
the Constitntion to the United Stales, bnt were resenred to the states respee* 
tirely^ and the new states hate the same rigfatSt soTereignqr,and jnrisdielion 
orer this subject as the original states. 

The United' States nerer held any mnnicipal sorereignty. Jurisdiction, or right 
of soil in and to Uie territory of which Alabama, or any of the new states, 
were Ibrmed, except for temporary ptfrpoees, and to execute the trusts ereatsd 
by the acts of the Virginia and Georgia lecislalures, and the deeds of cession 
executed by them to the United States, and the trust created by the treaty of 
the 80th April, 1803, with the French i[epublie, ceding Louisiana. 

Upon the admission of Alabama into the union, the right of eminent domainy 
which had been temporarilr held by the United States, passed to the stale. 
Nothing remained in the United States but the pViblic lands. 

The United States now hold the puhlic lands in the new states by force of the 
deeds of cession and the statutes connected with them, and not by any muni- 
cipal sorereignty which 4t mar be supposed they possess or hare receiredby 
compact with the new states for that fwrticolar purpoee. 

That part of the compact respecting tb^ public lands, is nothing more than the 
exercise of a constitutional power rested in Congress, and would hare been 
binding on the people of the new states whetfKr they consented to be bound 
or not 

Under the Florida treaty the United States did not succeed to thoee rights which 
the King of Spain had held by rirtue of his rojraLprerogatire, but possessed 
the territory subject to the institutions and laws of its own goremment 

By the acts of Congress under which Alabama was erected a territory and a 
state, the common law was extended orer it to the exclusion of all other law, 
Spanish or French.^ . 

The treaty of 1798 was not a cession of territory by Spain to the United States, 
but the recognition of a boundary line, and u admission, by Spain, that all 
the territory on the American sid^ of the line was originally within the 
United States. ' 

The United States hare nerer admitted that they derired t^ile from the Spanish 
goremment to any portiqu of territory included within the limits of Alabama ; 
for, by the treaty of 1796, Spain a^^ted that she had no cljum to any terri- 
tory abore the Uiirty-flrst degree of north latitude, and the United States de- 
rired its title to all below' that degree from France, under the Louisiana 
treaty. . 

It resulu from these principles that the right of the United States to the public 
lands, and the power of Congress to make all needful rules and regulAtions 
for the sale aed disposition thereof; conferred no power to gnsnt land in 
Alabama which was below usual hi|^ wAier-mariL at the time Alabama was 
admitted into the tmioo. 

JANUARY TERM, 1846. 918 

Pollard's Lestet v. Hagan et aL 

This case was brou^t up by wnt of eiror from the Supreme 
Court of Alabama. 

It was an ejectmait brought by the plamti£F in eiror in die Ciis 
cutt Court (State Court) of Alabama, to recover a lot in the city of 
Mobile, described as follows, yiz. : Bounded on the north by the 
south bound3iy of what was originally designated as John Forbes 
& Co.'s canal, on the west by a h>t now or lately In the occupancy 

o^^or claimMl by, Ezel, on the eatf by the channel of the 

lirer, and on the south by Government street. 

lie case was similar m its character to the two cas^ of City of 
Mobile V. Emanuel et al., reported in 1 HowaFd, 95, and Pollard's 
leasee v. files, 2 Howard, 692. In the report of the first of these 
cases ihe locality of the ground and nature of the case are ez« 

In 1 Howard, 97, it is stated that the court charged the jury, that 
'' if the place in Controversy was, subsequent to the admission of 
this Mateihto the union, below both hifi;h and low watei^maik, then 
Congress had no nght to srant it ; and if defendants were in pos* 
session, me plmntim coula not oust them by virtue of the act of 
CoD^^QAs." And at page, 98 it is remarked, that ^^the Supreme 
Court of Alabama did not decide the first point raised in the bill of 
excq[>tions, viz. : that Congress had no ri^t to grant die land to the 
city of Mobile.'' 

In the case of Pollard's lessee v. Files, it is remarked ^2 Howard| 
601) that ^^ the arguments of both counsel as to the nf^t of the 
state of Alabama over navi^ble water in virtue of her sovereignty, 
are omitted, because the opmion of the court does not touch upon 
tti^ point. 

In the present case, there were objections made upon the triaL 
bdow to tne admission of certain evidence which was offered by die 
defendant ; bat these objections were not pressed^ and the whole 
aimimeDt turned upon the correctness of the charge of the court, 
which was as follows: ^^That if they believed that the premises 
sued for were below usual high water-mark, at the time the state of 
Alabama was admitted into the union, then the act of Congress, and 
&e patent in pijrsuance thereof, could nve the plaintiff no tide, 
whether the waters had receded by the labour of man only, or by 
alluvion ; to which plaintiff excepted, and the court signs and scab 
this bill of exceptions." 

Under these instructions the jury found for the defendant, and the 
Supreme Court of Akbama affirmed the judgment. From tfiis last, 
court the case was brought up, under the 25m section of the Judi- 
ciary Act, and the only question was upon the correctness of the 
above instructions. 

Cbxe, for the plaintiff in error. 
SergearUy for tbe defendant m error. 


Pollard^t Lessee «. Hagan et aL 

Cbze, for plaintiff in error, said, that the only point presented upon 
the record grew out of the charge of the court The plaintiff ga^e 
ia evidence a patent from the United States for die premises 
in question ; an act of Cong;re88, July 2d, 1836, and an act of 26th 
May, 1824. Proof was giTcn- that the waters of Mobile bar, at 
him tide, overflowed the premises during all the time up to 1829. 

This «ame title has been before the court already and confiimed^ 
1 Howard, 96 ; 2 Howard, 691. 

The act of Congress admitting Alabama into the union is in 
6 Laws U. S. chap. 468, p. 380. The 6th section contains a pro- 
viso, that all navigable v^raters diall remain public hig^wigrs^ &c. 
Unless Hob section jprerents the land' described in the patent from 
bdonging to the Umted States, the pluntiff must recover under it. 

In 14 reters, 361, the land in question was situated just Hke this, 
and &e title was confirmed. So in 16 Peters, 234, 246. In these 
two cases diere is an impKed omniqp of the court up<m the poiiit 
now, under eoiisideration^ and the expressed opinion of one judge. 
16 I*eters, 262, 266. 

In| 2 Howard) 699, the point was expressly raised by the counsel 
on^d^e ottier side. 

If the land did not bdong to die United States, it belonged to no- 
body. Neidier the state of Alabama nor the city of Mobue had any 
tide to it Many lands are in the sainesituation, subject to be oreiv 
flowed, and if they belong to nobody, there is an end to aD improve- 
ment of diiem, and they must remain public fiuisances. 

Sargeaniy for defendant in enor, stated the foIlowiDg points :— - 
1. The plaintiff rested his cas^ entirely upon the act of Congress 

of the 2d July, 1836, and die patent issued under it, diovring no 

previous or oth^ ^lig^tr The act and the patent gaYe^him no tide 

to the premises, because, 

1st. The United States had nothing to grant, or to release ; die 
^t, if any, between hi^ and low water-mark bein^ in the state 
Alabama, and not in die United States ; and if ever m the United 

States, after Alabama became a stat§, viras passed .away and parted 

widi by tbe^act of 1824. 
2d/ The rig^ and tide in and to the premises in quesdonwere 

rested in those under whom defendant claims, by a valid grant 

from Spain before the treaty of 1803, namely, by the grant of June 

9th, 1802. 
3d. The grant from Spain, calling fof die river as aboundluy, 

maintained the same boundary and followed the river. 
4th. The length of the line referred to in the grant does not limit 

defendant's right, because it is not stated for the purpose of limiting 

die rig^t, but only as the then distance to the river ; because it ao- 

tuaUy went into the river, and also because the caU for the river 

controls both course and instance. 

JANUARY TEBM, 1845, «16 

Pollard's L«ttee «. Hagan ef aL 

2. The act of CoDgren could not operate as a rdeaae or confip- 
oudioiu becauae Aere was no ri§^t or colour of rig^t fi>r a release 
or confirmslkm to operate upon. 

3. The, rig^t of die defendant was svred aiid confirmed by the 
act of IC^ so as to place it thenceforward beyond doubt or 

(All of Mr. S er f m nP i remaiks wfaidi bear upon other points than 
the oneupon which the opini<m of die court rested are omitted.) 

Had die United States any^title to land coyered by navigable 
water, after the admission of A!MJ>ama into the union ? Judge Catron 
has decided in finrour of the United StatM. but the court has ex- 
{uressed no opin^n in preceding cases. The land in Question was 
a part of flie shore of the river when Alabama was aomitted, and 
was so when &e act of 1824 passed. It was a part of the river. 
What isa river? Are not its books included? *In the language of 
courts, there are two distinct parts of a river, its diore and its dian« 
neL The idiores sometimes extend a mile out They may be left 
bare at low tide^. but are still a part of the rirer, either for the pur^ 
poses of navijnition or fidiing. Beyond that is the channel. The 
record descrioes this land as being bounded by the channel of the 
rirer. The question, whedier the United States had a tide after 
1817| was not deddea in 14 Peters, nor in 16 Peters, nor in Pollard 
V. Files. It is of Utile importance to the United States, because free 
nsTigatimi is secured, but of great ma^piitude to ^ state. It has 
been said, diat if die decision be against the United States, the 
shores must remain unimprored. But not so. Their improvement 
requires local regtdation. They are avenues to navigation, and want 
aneaier mardian than die United States. Odier states hare the 
c<mtrol of similar property. The United States describe the limits 
of a port in dieir revenue laws, and if they want alocal property 
dieybuyit A state can manage this sort of property better than 
the Uni^ States, who have never done any tlung with it The 
qneirtion is important to the new states, as involving an attribute of 
aoTerrign^. tt^ want of whichMnakes an invicfious distinction be- 
tlrecn me dd aiid new slates. In9Porter, 677, there is an outline 
of die argument imon this subject, and the authorities are cited. See 
also 669^ 691. It is not materud for me to examine the power of 
die Eji^ of Spain, because after the transfer in 1803, the countiy 
became subject \o die common law and statute laws of the United 
8tates,.exoOTt jss to previous grants. 

At page 696, this particular question is examined, and die case 
in 10 Peters referred to. 

It siroears, therefore, that the Supreme Court of Alabama studied 
&e Sonjeeti and there is no adverse decision in diis or any state 
court (hi th^ contrary, the decision oS Alabama has b^ suih 
tained hw (his court in nrmcqde. 

A ingoX to die shore betweoi hig^ and low watei^maik is a sove- 

916^ BUyREME COURt. 

Pollard'* Lesaee v. aL 

' _ • 

reign rig^t) not a proprietary One. By the ir^aties of 1803 and 
1819 there is no cession of river ishores, although Itfndji forts, SuUf 
are mentioned^ Why.? Because rivers do not^pass by mnt, Imt 
as an attribute of sovereignty. The rijg^t passes in ^. pec&ar man* * 
. ner ; it is held in trust .for eireiy indmdual proprietor in the stale 
or the United States, and requires a trustee of great dignitv. ' Rivers 
must be kept open ; thev are iiot land, which may be sold, and die 
right to them passes with a transfer of sovereignty. 16 Peters, 367, 
413,410,416. .. 

It follows from this decision,, that the rights over rivers became 
severed from the rights over property. .In Pennsylvania, aftei the 
Beyolution, an act ^^is passed confiscating the property of the i^enn 
ianuly; but no act was passed transferring the soverei^ty of the 
state. The reason is, that no act was necessary. • Sovereignty trans- 
ferred itself, and when this P^iSses, the ri£;ht over rivers passeig^teo. 
Not so with public lands. The riffht which New jersey acquired 
in 16 Petera was precisely the rigat which Alabama claims now. 
Tliere can be no distinction between those states which acquired 
fheir independence .byjprce of arms and those which acquired it by 
the peacml consent ~of older states. The Constitution says, the 
latter must be-admitted into the union on an equal footing with the 
rest. The dissenting opinion of Judge Thompson (page 419) is not 
inconsistent with this. 

U these positions are ri^t, the United Stateshad nothing hdidw 
high water-mark. They might have reserved }t in the compact with 
the state, ^the third article of the treaty with Spain (1 Land Laws, 
57) contaiiifi such a reservadon* But as jit. is, the United States 
have nothing in Alabama but proprietary rij^ts. They bannot put 
their foot in a state to claim jurisdiction without its consent No ' 
principle is more fiuniliar than this, that whilst a state has granted a 
portion of its sovereign power to the United States, it remains in the. 
enjoyment of all the severalty which it has not voluntfurify parted 
with. This court, thou^ ineiqpreasibly viJuable to tiie countiy, is 
yet a court of limited juns^cticm. In the Constitution, what power 
IS given to the UnitedStates over the subject we are now discu^ing ? 
In a territoiy they aie sovereigi^, but when a stale is erected a change, 
occurs. A new sovereifi^ comes ip. -Where the jioim of taxation 
occurs, it is because it has been yielded by compact 1 McLean's 
Rep. 337, 339, 343, 344, 354, 371, 374, 378. 

Th^ case in 10 Peters, 731, New Orieans t;. The United States, 
sections the idea, that the power of which we have been ipeddng 
must be held in trust ; that the kings of France had jurisdiction over 
the isiiore, but it was a police power, and used lor the coiismoii 
benefit, not as a proprietary right. If the trust be in tfa6 state of 
Alabama, the Unitea States cannot defeat that trust The ririit of 
accretion could not belong to ^i United States, because it bdongs 
to the adjacent proprietor. 


Pollard's Lertet «. Hagan et at 

CoMj in l^Jf maflted, tbat fonner dedaona of. tins eomt corer 
tins case. The nature of the mnnd in questiob b fiilfy* shown in 
9 Porter, 680, 681 ; that the tide riaea one and a half or two feet 
In 10 Peten, 667, ftoperij amilariy ntoated ia described, wh^re 
the water wcfohi oveifiow noless confined by badcs. It has been 
said, jthat the United States oannot exercise acts of ownerdiip over 
iti but it is conceded that Spain hadand exercised jurisdiction to 
the extent of granting it to individuals. 10 Peters, 679, 680, 681 ; 
attom^-ffeneral's opmion, 16 JPeters, 262 ; 9 Porter, 691. 

In 10 Peters, 662,^ no question like &e present'was raiaed, as to 
thepower to grtmt, but whether the property erer had been granted. 

The case ol New Orleans v. Umted States mvolyed merely the 
■- question, whe&er the land had been dedicated to the public. It 
was like the Pittsburg and Cindnnati cases^ diflering only u to die 
&ct8 proTed to sub&ntiatie such dedication and me code of &w 
whidi was to gorern it l^e citations fr6m Domat (123) are de- 
aened merely to point out ihe places which belong to die public. 
No Question was presented or decided, nor was any opinion indi-. 
cated as to the pomts inrolVed in, this controrersy. 

Prior to flie trea^ by which the United States acquired this terri- 
tory, die former soreretgn claimed and exercised die rights which 
the United States haVe undertaken to exercise. But it is said, t^ 
we must show that our goTemment could be the recipient of diis 
power. Suppose we cannot Then the ri^ must remaiiv in Spain, 
which womd be a strange result Butwesi^, 

1. That portion of soTcre^ power whidi is Tested in flie United 
States by our Constitution and biws is unlimited* 

2. The exercise of power by an;^department or fimctionaiT of Ifae 
gOTemment, as among<and operating on oursehres, is limited. 

3. The 8oYerei|p power as a nation in its foreign intercourse is 
subject to no ccmstitutional restraint 

But it is ocmtended, that die ri^ to die shore is a sererei^ and 

Klitical, not a proprietary rij;fat' In what die distinction exists, so 
* as it is applicable to this centroversy, has-not been ejplained^ 
and is not em to be understood. That diere is an immense body 
of lands in all our alluvial territory, from die Nordi rirer to tfie &• 
bine, induding the meadows between Newark and New Yoric. those 
mi Ae Ddaware, die nee plantations of Carolina and Georgia, ihe 
marshes of Florida, die swamps of Louisiana, is a matter of foot 
They are object to periodical mundations, some daity, some by oc« 
caaional fiesbets, some witih the semMummd rise of waterSk Accord^ 
ing to the argument on theodier side. aH these are to be considered 
p^ of die diore. How can a political power be said to exist 
wiAout a prc^etaiy right ov^r niarshes where no one can live ? 

It ia said dvie treaties of 1803 attdl819 nowhere specify rivers, 
and from this die eoiiclusion is drawnHiat they passed as pait of die 
sdremgnhr. It seems more probaUe dial they passed as p^tt et 

Vol. m.— 28 T /r~ r- 


Pollard's Lessee v. Hagan et aL 

the territory. Islands are mentioned^ out in the ocean, under lAkk 
we hold Key West, Tortugas, &c. Why shoiild they be considered 
merely as incidents to sovereignty and not part <n Ihe territory? 
The language of the grant is, in ^^ full property and -sot^ 

The treaty of 1795, with Spain. (1 Laws U. S, 264,) in de- 
signating the boundaries, speaks of them which separate me terri- 
tories of the contracting parties, and establish part of this Une pf 
territory in ihe middle of a river. Article 4th designates the middQe 
of the channel, or bed of the Mississi{>pi, as the western bound|ur^. 
In this treaty, as in that of 1819, a river is the boundary, and its 
free navigation is secured. Did any one ever suppose mat ather 
party precluded itself from using the In^way, or from holding or 
di^osmg of the lands on the banks subject to inundation ? 

It is said that the land which was in question in Martin v. Waddell, 
16 Peters, 369, was similarly situated to the present; that it was 
below hig^ water, and &ence it is inferred that it was above low 
water-maric. But the special verdict indicates no suck thing. It 
says, "covered with water," "where the tide, ebbs and flows.*' 
Nor is there anj thing in the rassages cited (410, 413^ 416) con* 
fiictin^ with this idea. New Jersey, who asserted the ri^t sus^ 
tainecrin that case, would be astonished to learn the construction 
now placed upon it, denying the rig^t of private property in the flats 
left bare at low water, or in the valuable meadows protected 1)y 
banks fix>m daily inundation, and converted into productive property, 
conducive eaually to he^th and wealth. 

In the lands thus situated, which had not been severed from the 

SubUc domain, the United States had the capacity to acquire, and 
id acquire, a proprietary interest. Nor is this repugnant to our 
constitution or laws, or the principles of our ^vemme^ Throudi- 
out the union such property is held by mdividuals under t^s 
sanctioned by legislative acts and judicial decisions. 

The sea-snore and arms of the sea, " like other public proper^ 
may be granted by the kmg or government to individual proprietors.'* 
2 Dane's Abr. 690, 691. 

The Massachusetts colony act of 1691 grants numerous pieces 
of flats to the proprietors of the adjoini^ uplands. This was in 
strict conformity vrith the English law. Tne sofl on which ihe sea 
flows and ebbs, that is, between hidb and low water-maiks, may be 
parcel of a manor. Where the tide flows, it is vrithin the jurisdic- 
tion of the admiralt|r ; where the tide ebbs, the land may tielonff to 
a subject. Every thing done on the land when ttie sea is out, nail 
be tried at common law; 6 Co. 107, Constable's case. In New 
York and New Jersey, the inlets of the sea on Long Uand and 
between the Passaic and Hackensac, have all been redaimed and 
converted into meadows. When New York claimed the entire 
jurisdiction of the North river, she never "Qioug^ of claiming ih/t 

JANUARY TSRM, 184ft. *» 

PoUtrd's Lessee «• Fagaii et aL 

■■ ■ ■ i -^— ■ ' ' ■ 

meadows and manhes oq die Jersey side, although fliey were corered 
at eveiy hii^ tide by the waters of that riTer. 

On ttie Delaware, in the states of Delaware, New Jeney and 
Penmylvania, the same law prerails. 

In Afaiyland, Sooth Carolina, and Greorgia, yalnable private 
proper^ lias been thus reclaimed from the water. 

Throu^out our western countiy, Ohio, Indiana, Illinois, I^Gs- 
souri, Louisiana, Alabama, Mississ^i, no question has erer been 
raised on this point until these cases fim presented it BGUions of 
acr^ are thus held. The right has been uniformly asserted by the 
United States. It was so in the act of 20th April, 1818, for the 
sale of Fort Charlotte lands, which gave rise to me suits in Peters 
and Porter. 9 Porter ; 16 Peters, 250 ; 6 Laws U. S. 346. 

The act of May 26th, 1824, expressly grants land of this de- 
scription, and the act of July, 1836, does me same. 

All the. titles under these acts are now in controversy. It is said 
that the Umted States have litde or no interest in this Question j but 
their interest is of incalculable yalue. See Dailey's Louisiana, as 
to &e amount of overflowed lands. ^ 

The right has been judiciously recognised. In 16 Peters, 408, 
tTnited States v. Fitsgendd, where there was a daim under the pre* 
emption laws. In the five diflerent cases in which this very grant 
has been disputed. . Pollard v. Kibbe, 14 Peters, 366, where the 
title of both parties was presented. So &r as. die plaintiff's tide 
appears^ it was identical with that now exhibited^ widi the only 
addition of the Spanish ongb, which had been rejected by the 
board of commissioners. T%e defendant's title die «ame as now. 
All the objections how ur^d to the plabtiff^s title were then a^>a* 
rent on the record. Mobile v. Esclava, 16 Peters, 234; 9 Porter; 
Mobile V. Hallett, 16 Peters, 261 ; Mobile v. Emanuel> 1 Howard^ 
96 ; Pdlard t^. Files, 2 Howard, 69^. 

Mr. Justice McKINLEY delivered ^e opinion of die oourt. 

Thur case comes before this court upon a writ of error to the 
Supreme Coutf of Alabama. 

An ^action of ejectment was brought by the plaintiffi a^inst the 
defeiKlants, itf the Cupcuit Court of Mobile county, in said state; 
and iipon die trial, to support their action, ** the plaintifis read in 
evidence a patent fix)m the United States for the premises in ques-^ 
tioiu and an act -of Congress passed the 6th day of July, 1836, 
oonnrmiBg to dieni the premises in the patent mentioned, togedier 
^th an act of Congress passed the 20th of May, 1824. The pre* 
mises in (question. were admit^d by the defendants to be compre« 
•bended within the patei^ ; a^ there was likewise an admlssioh bv 
both narties that me land lay befweeq. Church .street and Norm 
Boundary street,, m the city of Mobile;, and there the plaintifis 
rested their case." 


Pollard's Lessee «. Hagan et aL 

. ^* The defttidantB, to maintain the issue on thdr part, introdnoed 
a witness to prove that the|premises in question, between the yean 
1819 and 1823,. were cov^d by watej of the Mobile river at com* 
inon hidi tide ;'^ to which evidence the plaintifis bv their counsel 
objectea ; hvii the court overruled the objection, ana permitted the 
endencd to go to the jury. ** It was also ip proof, on the part of 
the defendant, Aat at the date of the Spanish erant to Panton, 
Leslie & Co., under which they claim, the waters of the Mobile bay, 
at high tide, flowed over what is now Water street, and over about 
one-uiird of die lot west of Water street, conveyed by the Spanish 
grant to Panton, LesBe £(.Co. ; and that the waters cbntmued to 
overflow Water street, and the premises sued for, during alL the 
^me up to 1822 or 1823 ; to all which admissions of eviaencie, on 
part of the defendants, the plaintifljs ^ccepted.*^ ^*The court 
charged the jiiry, that if they believed the premises sued for were 
below usual high water-marlc, at the time Alabama was admitted 
into the union, then the act of Coneress, and the patent in pilr- 
suance thereof^ x^ould ffive the plamtils no title, whemer the waters 
had receded by the labour of man only, or by alluvion ; to whicb 
the plaintidb excepted.. Whereupon a verdict and judgment were 

. rendered in favour of the defendants, and which juc^nent was 
afterwards affirmed by t^e Sopreme Court of the state." 

This question, has been hetetofore raised, before this court, in 
cases fix)m the same state, but they went off upon otiier points. 
As now pre8esited,'it is the only qviestion necessary to the decision 
of the <;ase. before us, and must, therefore, be decided. And We 
now. enter into its examination with a just sense of its gre^t im- 
^rtance to all &e states of the union, and particularly to the new 
ones. Altfaoufi;h this* is the first time we have been cidled upon to 

' draw the line mat separates tiie sovereignty and jurisdiction of the 
government of the union, and the istate governments, over the- sub- 
tect in controversy, many of the principles which enter into and 
form the elements of the question nave been settied by pre^nous^ 
well conadered, decisions of this court, to which we shall have 
occasion to refer in the course of this investigation. 

The counsel for the plaintiffs insisted, m argument, that the 
United States denved title to that part of Alabama, in which the 
hnd in controversy lies, iBrom the Kin^ of %>ain ; and that thc^ 
succeeded to all his rights, powers, and jurisdiction, over the tern* 
toiy ceded, and therefore hold the land and soil, under navigable 
waters, according to the l^ws and usages of Spain; and by mose 
laws and usages the fights of a subject to land denved from the ' 
crown could hot extend beyond .hig^h water-mark, on navigable 
waters, without an express grant ; and that all alluvion belong to 
the crown, and might be granted by this king, tog^ether with aO 
land between high water and the channel of su(^ navigable waters; 
and by the compact between the United States and Alabama, on 

JANUARY TERM, 18«, »| 

PoUard'f Lessee «. Hagan et aL 

her admission inter <he union^ it was agreed^ that llie people of 
Alabama for ever disclaimed all right or title to Hxe waste or unap- 
prc^iiated lands lyii^ within the state, and that the same A%iijd 
rainain at the sole diq^osal of the United Stat^ ; and 4hat aU the 
naTigable waters withm tiie state should for ever remain public 
hi^ways, and finee to the citizens of that state and Hie United States, 
Wi&out any tax, du^, or impost, or toll therefor, imposed by thai 
state. That by these aitiqles of the compact, die land under Hbe 
nayigable waters, and the public domain above high water, were 
aEke reserved to the United States, and alike Qibject to be sold by 
fliem ; and to give any other construction td^^diese compacts, would 
be to yield up to Alabama, and the other new states, aU flie public 
lands within their limits. 

We think a proper examination of this subject will show^lhat 
the United States never held any municipal sovereignty, jurisdic- 
tion, or ri^t of soil in and to me territory, of which Alabama or 
any of the new states wer^ formed; except for temporanr j^ur- 
poses, and to execute the trusts created by the acts of uie Vimnia 
and Ueorsia legislatures, and die deeds of cession executed by 
fhem to Sie United States, and the trust created by the treaty 
widi the French republic, of the 30di. of April, 1803, ceding 

All that part of Alabama which lies between the thirty-first and 
thirfy-fifih degree of north latitude, was ceded by the state of 
Georgia to the United Stoiei, b^r deed bearing <late the 24di day 
of April, 1802, which is substantially, in all its principles and stijpu* 
iations, like the deeA of cession executed by Vurffiiiia to the United 
States, on the 1st day of March, 1784, by which she ceded td the 
United States die territory north-west of the river Ohio. Bbth of 
diese deeds of cession stipulated, that all theiancb within the terri- 
tory ceded, imdnot reserved or . appropriated to other purposes^ 
should be consiaered as a common fund for the use and benefit of 
all ti^e United States, to be fidthfully and bona fidt disposed of for 
diat purpose, and for no other use or pu^ose whatever. And die 
statute passed by Virginia authorizing ner delegates to execute this 
deed, and which is recited in it, authorizes thetn, in behalf of the 
ftate, by a proper deed to convey to the Uhijed States, for the benefit 
of said states, all the n^t/ title, and claim, as well of soil as Juris- 
diction, ^^ upon condition that die territory so ceded shall be laid 
put |md formed into states, containing a suitable extent of territory, 
not less than 100, nor mpre than 160 miles square, or as nefur 
thereto as circumstances will admit : and that the states so formed 
ahall be republican states and' admitted members of the federal 
union, having the ^une rights of sovereignty, freedom, and inde- 
pendence, i\|9 the other states.'^ And the delegates conclude the 
deed dius: ^^Now know ye,'diat we, die said 'X^omas JeflTerson, 
S^uel Hardy, Ardiur 'Lee, and James Monroe/ by virtue of the 



Pollard's Lessee v. Hagan et a). 

power and authority committed to us by the act of the said general 
assembly of Virginia before recited> and in the name and for andf 
on behalf of the said conmionwealth^ do by these presente conyey^ 
transfer, assign, and make dyer unto the United States in Ccm^ren 
assembled, for the benefit of said states^ Virginia inclusiye, alt nghL 
title, and claim,, as well of soil as of juriraiction^ which the said 
coinmonwealth hath, to the territory or tract of country within the 
limits^of the '^^rginia charter, situate^ lying, and being to die north- 
west of the Jirer^ Ohio, to and for the uses and purposes, and oa 
the conditions of the ^id recited act'' ^ 

And in the deed of cession by Georeia it is expressly stipulated. 
'^That ttie territory thus cede^ shall form a state and be admitted 
as such into the union as soon as it shall contam sixty thousand fiee 
inhabitalits, of at an earlier period if- Conjgresd shall think it expe- 
dient, on the same conditions and restrictions, with the same pnyv> 
leges, and in the same manner, as is proyided in die ordinuice of 
Congress of the 13th day of Jiuy, 1787, for die |;oyemment of the 
nort&westem territory of the United States, which ordinance shall 
in all its parts extend to the teintoiy contained in the present act 
0f cession, that article otij excepted which forbids slayery.'^ Ihe 
manner in which die new states were to be admitted into the 
union, according to the ordinance of 1787^ as expressed therein, is 
as follows : ^^ And whenever any of die said states shall haye sixty 
thousand firee inhabitants therem, such state shall be admitted, by 
its delegates into the Congress of the United States, on an equal 
footing with the original states in aU reiroects whateyer." Thus it 
appears that the stipulations, trusts, and conditions, are substan- 
tiaUy the same. in bodi'of these deeds of cession; and die acts of 
Congress, and of the state legislatures in relation tfaereto^jure found- 
.€d in the same reasons of policy and interest, with this exception, 
however — ^tbe cession made' by Virginia was before' the adoption of 
the Constitution of the United States, and that of Geongia afterwards. 
Taking the leeislatiye' acts of die united States, ana the states of 
Virginia and ueorgia, and their deeds of cession to the United 
States, aad giving to each, separately, and to all joindy, a fiiir 
interpretation, we must come to the conclusion that it was the 
intention of the parties to invest the United Stetes with the eminent 
domain of the Countiy ceded, both national and municipal, for the 
purposes of tempor^iy government, and to hold it in trust for die 
perfonnance of the stipulations and conditions expressed in tihe 
deeds of cession and the legislative acts connected ^^th diem. To 
a correct understanding of die eights, powers, and duties of die par- 
ties to these contracts, it is necessary to enter into a more minute 
examination of the rights of eminent domam, and the ri^t to the 
public lands. ^Vhen the Unitekl States accepted the cession of the 
territory, they took upon themselves the trust to hold the municipal 
'eminent domain for the new states, and to invest them with it, to 


Pollard's Lessee v. Hagan et 'aL 

the same extent, in aU respects, that it was held by the rtates ceding 
the territories. 

The right whidi bdongs to the socie^, or to the sovereign, of 
disposing, in case of necessity, and for the public safety, of all the 
w^th contained in the state, is called the emineni domain. It is 
evident that this right is, in certain cases, necessary to him who 
governs, and is, consequently, a part of the empire, «or sovereign 
power. Vat. Law of Nations, section 244. . This definition shows, 
that tlie eminent domain, although a sovereign power, does not 
include all sovereign power, and this explains the sense in which it 
is used in this opinion. The compact made between the United 
States and the state of Georgia,. was sanctioned by the Constitution 
of the United States ; by the 3d section of the 4tb article of which 
it is declared, that ''New states, may be admitted by the Con^^ress 
into this union ; but no new state shall be formed or erected within 
the jurisdiction of ary other state, nor. any state be formed by the 
junction of two or more states or parts of states, without the consent 
of the legislatures of the states concerned, as well as of Congress.'' 

\Mien Alabama was admitted into the union, on aji equal footing 
with the original states, she succeeded to all the rights of sove- 
reignty, jurisdiction, and eminent domain which Georgia possessed 
at Sie date of the cession, except so far as this right was diminished 
by the public lands remaining in the possession and under the con- 
trol of tne United States, for me temporary purposes provided for in 
the deed of cession and the legislative acts connected with it* 
Nothing remained to the United States, according to the terms of 
the agreement, but the public lands. And, if an express stipulation 
had been inserted in the agreement, srantin|g the municipal ri^t of 
sovereignty and eminent domain to me United States, such stipula- 
tion would have been void and inoperative; because the United 
States have no constitutional capaci^ to exercise municipal juris- 
diction, sovereignty, or eminent domain, within the limits of a state 
or elsewhere, except in the cases in which it is expressly granted. 

By the 16di clause of the 8th section of the 1st article ofthe Con- 
stitutbn, power is riven to Congress ^' to exercise exclusive legisla- 
tion in all cases whatsoever, over such district (not exceeding ten 
miles square) as may by cession of particular states, and the accept- 
ance of Congress, become the seat of government oi t}ie United 
States, and to exercise like authority over all places purchased, by 
the consent of the legislature of the state in which the same may be, 
for the erection of forts, magazines, arsenals, dock-^ards, and other 
needful buil^Ungs." Within the District of Columbia, and the other 
places purchased and used for the purposes above mention<ed, the 
national and municipal poweis of government, of eveiy description, 
are united b the ofovemment of the union. And these are die only 
cases, widiin the United States, m which all the powers of. goyem- 
jnent are united in a single govenunent, except in the cases already 


Pollard's Lessee v. H^an et aL 

meatioiied of &e temporary territorial ^ovenunents, and there a lo- 
cal goTemment exists. The right of ^bama and every other new 
iltate to exercise all the powers of govenunent^ which belong to and 
may be exercised by the original states of the union, must be ad- 
mittedy and renudn nnquestionedi except so far as they are, tempo* 
laiily, depriyed of contipl over the public lands. 

We will now inquire into the nature and extent of the right of the 
United States to these lands^ and whether that rijc;ht can in any man- 
ner afiect or contrd the decision of the case before us. This rig^ 
originated in voluntaiy surrenders, made by seyeral of the old states, 
of their waste and unappropriated lands, to the United States, under 
a resolution of the old Uongress, of the 6th of September, 1780, re- 
conunending such surraider and cession, to aid in paying the public 
debt, incurred by the war pf the Revolution. The object (^ all the 
parties to these contacts of cession, was to convert the land into 
money for the payment of die debt, and to erect new states over the 
territory dius ceded ; and as soon as these purnoses could be accom- 
plished!, the power of the United States over tnese lands, as proper- 
ty, was to cease. 

Whenever the United States shall have fiiDy executed these trusts, 
the municipal sovereimty of the new states wiu be complete, throUg^ 
out their respective border^, and they, and the original states, will 
be upon an eciual footing, in all respects whatever. We, therefore^ 
tldnk the United States hold the public lands within tfie new states 
by force of the deeds of cession, and the statutes connected with 
them, and not by any municipal sovereignty which it may be sup- 
posed diey possess, or have reserved by compact with the new stat^ 
K)r fliat particular purpose. The provision of the Constitution above 
referred to shows that no such power can be exercised by the United 
States within a state. Such a power is not only repugnant to the 
Constitution, but it is inconsistent with the spirit and intention of 
the deeds of cession. The argument so much relied on by the coun- 
sel for the plamtifls, that the agreement.of the people iimbiting tiie 
new states, *^ that tiiey for ever disclaim all right and title to the 
waste or unappropriated lands lying within the said territoiy; and 
that the same shall be and remam at the*«ole and entire. disporition 
of die United States," cannot operate as a contract between -the par- 
ties, but is binding as a law. Full power is given to Congress ^^to 
make all needfol rules and regulations respecting the territoiy or 
other property of the United States." This autiiorized the passafl;e 
of all laws necessary to secure the rij^ts of the United States to the 
public lands, and to provide for their sale, and to protect them from 

And alL constitutional laws are binding on the neq>le, in tiie new 
states and the old ones, wheAer they consent to be bound by them 
or not Every constitutional act of Congress is passed by tne will 
of tiie people of the United States, expressed Arouj^ tlieir tep»- 


Pollard's Lessee v. Hagan et aL 

matM&rtBj on the sabject-matter of the enactment; and when ao 
paaaed it beoomea the aupreme law of the land, and opcratea by its 
on^ force on the aabject-malter, ip whatever state or territoiy it majr 
happen to be. The proposition, therefore, that such a law cannot 
operate upon the subject-matter of its enactment, without the eiqpress 
consent en the people of the new state where it may hq>pen to be, 
contains its own refutation, and requires no &rther examination. 
The propositions submitted to the p^ple of the Alabama territoiy, 
for tiieir acceptance or rejection, by the act of C<nigres8«authoTiiing 
them to form a constitution and state goyemment for themselves, so 
for as they related to the public lands within that territory, amlDunt- 
ed to noming more nor le^s than rules and renlationa respecting the 
sales and diqiosition of the public lands, llie supposed compact 
relied on by the counsel for the plaintiffs, conferred no authonty, 
therefore, on Ck)ngress to pass the act granting to the {daintiffi the 
land in controversy. 

And thisi>rinffs us to ttie examination of the quesfion, whether 
Alabama-is entiUed to the shores of the navigable waters, and the 
aoib under them, widiin her limits. The prinqipal argument relied 
on against this right, is, that die United States acquir^ the land in 
controversy fonm the Kmg of Spain. Althou^ there was no direct 
reference to any particular trea^, we presume the treaty of die S2d 
of Februaiy, 1819, aimed at Washington, was the one relied on. 
and shdl so consider me argument U was insisted that the Unitea 
States had, libder the treaty, succeeded to all the rights and powers of 
tiie Kjng of Spain ; and as by the laws and usases of Spain, die king 
had the nriitto grant to a subject the soil under navigable waters, 
that, therrfore, t& United States had the ng)it to grant the land in 
contiover8y> and thereby the plaintiffs acquired a complete tide« 

If it were true that the United States acquired die whole of Ala- 
bama firom Spain, no auch coiaequences would result as those con* 
tended for. kcannot be admitted that the Kjng of Spain oould, by 
treaty or otherwiae, impart to the United States any of his royal prcH 
rogatives; and much less can it be admitted that they have capacity 
to Ireceive cirpgwer to exercise them. Eveiy nation acquiring ter- 
ritoiT) by trefi^ or .odierwiae, must hold it subject to the coitttitation 
and laws of its own jgovemment, andjaot aecordinff to those of the 
goveromect cediog it. . Vat Law of Nutiona, b. l, c. 19, a. SIO, 
244, 245, and b. 2, c. 7, s. 80. 

TTie United 8^tes hare ne^er claimed auy part of the territory 
included in the s^tes of Ifimsippi or Alabama^ under aa^ treaty 
with Spain, althoudi she claimed at different periods a eotisiderable 
portic^o of the temtory in botti of those states. By the treaty be- 
tween the United States and Spam, signed at San Lorenzo el Real, 
on the 27th of October^ 1796, ** The hi^h contracting parties declare 
and agree, that the line between the United States and East and 
WeatFlorida^ shall be deiignated by a line, beginning on the river 


Pollard's Lessee v. Hagan et aL 

Missisdppi, at the northernmost part of the thirty-first degree of 
north latitude, which from thence ^all be drawn due east to the 
middle of the Chatahouchee river," &c. This treaty declares and 
agrees, that the line which was described in the trea^ of peace be- 
tween Great Britain and the United States, as their southern bound- 
ary, shall be the line which divides their territory from East and 
West Florida/ The article does not import to be a cession of ter- 
ritory, but the adjustment of a controversy between the two nations. 
It is understood as an admission that the right was originally in the 
United States. 

Had Spain considered herself as ceding territory, she could not 
have neglected to stipulate for the property of the mhabitants, a sti- 
pulation which every sentiment of justice and of national honour 
would have demanded, and which the United States woidd not 
hscve refused. But, instead of requiring an article to this effect; she 
expressly stipulated to withdraw the setdements then within what 
the trea^ admits to be the territory of the United States, and for 
pennission to the settlers to take their property with them. "We 
think this an unequivocal acknowledgment that the occupation of 
the territory by Spain was wrongful, and we think the opinion thus 
clearly indicated was supported by the state of facts. It follows,^ 
that Spanish grants made after the treaty of peace can have no 
intrinsic validity.'' Henderson v. Poindexter, 12 Wheat 536. 

Previous to the cession made by Greorgia, the United States, by 
the act of Congress of the 7th of April, 1798, had e^blished the 
Mississippi territory including the territory west of the Chatahouchee 
river, to the Mississippi river, above the 31s1^ degree of north lati- 
tude, and below the Yazous river, subject to thctclaim of Greorgia 
to any portion of the territory. And the territory thus erected was 
subjected to the ordinance of the 13th of July, 1787, for its govern- 
ment, that part of it excepted which prohibited slavery: 1 Stonr^s 
Laws, 494. And by the act of the 1st of March, 1817, havine mst 
obtained consent of Georgia to make two states instead of one 
within tfie ceded territory. Congress authorized the inhabitants of 
the western part of the Mississippi territory to form for themselves 
a constitution and state government, '^to consist of all the tenit'^ry 
included within the following boundaries, to wit : Beginning on the 
river Mississippi at the point wfaerq. the southern boundary line of 
the state of Tennesisee smkes the sam^ ; thence east along the said 
boundaiy line to the Tennessee river*; thence up die same to the 
mouth' of Bear creek; ti^ence by a (hreot line, to the north-west 
comer of Washington county; thence due south to the; Gulf of 
Mexico; thence wesfwardly, incluifing all the islands within six 
leagues of die shore, to the junction of Pearl river with Lidce 
Borgne ; dience up said river to the thirty-first degree of nordi lati« 
tude ; ^ence west along said degree of latitude to the Missiasiiiui 
river; ttience up the same to die beginning." 3 Story's Laws, 1690. 

J ANUARY TERM, 1845. m 

Pollard's Lessee «. Hagan et al. 

AikI on the 3d of Marcby 1817, Congreas passed an act decliuri&^ 
^'Tbat all that part of ^e Mississippi territory which lies within- 
file foUowbg boandariea, to wit : Beaamme at the point where the 
line oi the thir^first degree of north Tatituoe btersects the Perdido 
riTer; thence east to the western boundary line of the state of 
Georgia ; thence al<mg said line to the southern boundary line of 
the state of Tennessee ; thence west, along said boundary line, to 
the Tennessee river ; thence up the same to the mouth of Bear 
creek ; thence by a direct line to the north-west comer of Wash- 
ington county; thence due south to the Gulf of Mexico; thence 
eastwardly, including all the islands within six leagues of the shore 
to the Peraido river ; thence tip the same to the beginning ; shall, 
for the purposes of temporary government, constitute a separate ter- 
ritory, and be called Ahaibama. 

Ajnd hj the 2d section of the same act it is enacted, "That all 
offices ¥^ch exist and all laws which may be in force when this 
act diall go into effect, shall continue to exist and be in force until 
otherwise provided by law." 3 Story's Laws, 1634, 1635. And by 
the 2d article of the compact contained in the ordinance of 1787, 
nduch was then in force in the Mississij^i territory, among other 
thinffs, it was provided, that " The inhabitants of the said territoiy 
flhair always be entided to the benefits of the writ of habeas corpus, 
and of tiie trial by jury, and of judicial proceedings according to 
the course oi the common law. And by me proviA) to the 5th sec- 
don of the act of the 2d of March, 1819, autfaorizmg the people of 
the Alabama territory to form a constitution and state ^vemment, 
it 18. enacted, " That the constitution, when formed, shall be republi- 
can, and not repugnant to the ordinance of the 13th of July, 1787, 
between tiie states and the people of the territoiy north-west of tiie 
Ohio river, so fiair as the same has been extended to the said terri- 
toiy [of Alabama] by the articles of agreement between the United 
St^es and the state of Georgia. By these successive acts on part 
of the United States, the common law has been extended to all 
flie territoiy within the limits of the state of Alabama, and therefore 
excluded all other law, Spanish or French. 

It was after ibe date of the tre^ky of the 22d of February, 1819, 
between the United States and Spain, but before its ratification, the 
pieople of the Alabama territory were authorized to form a consti- 
tution ; and the state was admitted into the union, according to thie 
boundaries established whta the country was erected into a territo- 
rial government But the United States have never admitted, that 
diey derived tide from the Spanish government to any portion of 
the territoiy included within the limits of Alabama. Whatever 
daim Spain may have asserted to the territory above the thirty-first 
degree of north latitude, prior to the treaty of the 27th of October, 
1795, was abandoned by that treaty, as has been already shown. 
We will now inquire whether she had any right to territory bekny 


Pollard's Lessee v.3agan et at 

the thiity-first de^ee of north latitude, after the treaty b e tw e e n 
France and the United States, signed at Paris on the 30th of Amily 
1803| by which Louisiana was ceded to die United States. The 
legislatiye and executive departments of die goyemment hare con- 
stantly asserted the>i^t of the United States to this portion of the 
territoiy under the 1st article of this treaty ; and'^a series of mea- 
sures intended to maintain the right have been adopted. Mobile 
was taken possession of, said erected into a collection district, by 
act (^ the 24th of Februai^, 1804, chap. 13, (2 Story's Laws, 914.) 
In ike year 1810, the President issued his proclamation, directing 
the goTemor of the Orleans territory to take possession of the coun- 
try, as far as the Per dido, and hold it for the United States. Li 
^ril, 1812, Congress passed an act'to enlarge the limits of Louid- 
ana. This act includes part of the country claimed by Spun, as 
West Florida. And in February, 1813, the President was au&or- 
iaed to occupy and hold all that tract of country called West Flo- 
rida, which hes west of the riyer Petdido, not then in the possession 
of the United States. And these measures h&ying beai followed 
by the erection of Mississippi-territory into a state, and the erecticm 
(H Alabama into a territory, and afterwards into a state, in the year 
1819, and extending them both oyer this territory: could it be 
doubted that these r^easures- were intended as an assertion of the 
title of the United States to this country? 

In the case of Foster and E3am v. Neilson, 2 Peters, 263, the 
right of the United States to this country underwent a yery able and 
fhorou^ inyestigation. And Chief Justice Marriiall^ in deliyering* 
the opmion of the court, said : ^' After these acts of soyereign power 
oyer the territory in dispute, asserting the American construction 
of the treaty, by which the goremment claims it, to maintain the 
opposite construction in its own courts would certainly be an ano- 
maly in the history and practice of nations. If those departments, 
which are intrusted with the foreign intercourse of thenation, whidi 
assert and maintain its interests against foreign powers, haye une- 
((uivocally asserted its rights of dominion oyer a country of whidi it 
is in possession, and which it claims under a trei^ ; if the legidai- 
ture has acted on the construction thus asserted, it is not in its own 
courts that this constiQiction is to be denied." . The chief justice 
then discusses the yalidity of the grant made by die Spanidi mrtm^ 
ment, after the ratification of the treaty between the Unifted Stales 
and France, and it is finally rejected on the ground.1hat the country 
belonged to the United States, and hot to Spain, wheo: the grant 
was made. The same doctrine was maintained by this court in the 
case of Garcia v. Lee, 12 Peters, 511. . These cases establish, be- 
yond controyersy, the ri^t of the United States to the whole ci this 
territory, under the treaty with France. 

Alaliama is, therefore, entitled to the soyereig^ and juiisdictioii 
oyer all the territory witfaim her lunits, subject to Hat dunmon law^ 


Pollard.'s Lessee 9, Hagan et aL 

to die same extent that Georgia poaaetKd it before she ceded it to 
tibe United Stat^L To maintain an^ other doctiiney is to deny ttiflt 
Alabama has been admitted into the union on an equal footing 
vidi the original atateSy the constitution, laws^ and compact, to the 
contraiy notwithstanding. But her rigjits of soTereisnly and juris- 
diction aite not ffOTemed by the conmion law €f En^and as it pre- 
vailed in the c<Monie8 before ^e Rerolution, but as modified by oar 
own institutkms. In the case of Martin and others v. Waaddl, 
16 Peters, 410, the present chief justice, in deliyering the ophiion 
of the court, said : ^^ When the Revolution took place, die people* 
of each state be^ume themsdres soyereign ; and in^ihat charader 
hold the dbsolute ri^ to all their navigable waters, and die soik 
under them for their own common use, subject only to die rights 
since surrendered by the Constitation.'^ Then to Alabama beloi^ 
die navi^^ble waters, and soBs under thtoi, in controv er sy ip this 
'ease, subject to* the rights surrendered by the Constitudon to the 
United States ; and no compact that mig^t be made between her 
and the United States could diminish or enlarge these rights. 

The declaration, therefore, contained in the compact entered into 
between them when Alabama was admitted into the union, ** that 
all navigable waters within the said state shall for ever remain public 
hij^hways, free to the citizens of said state, and of die United StataiL 
without any tax, dut^, impost, or toll dierefor, imposed by the saia 
state,'' would be void if mconsistent with the Constitution of die 
United States. But is this provision repugnant to the Constitution f 
By the 8th section of the 1st article of me Constitution; power is 
granted to Congress ** to regulate commerce with fbreicn nations^ 
and among the several states." If, in the exercise of mis power, 
Conmss can impose the same restrictions upon the original states,^ 
in relation to ^eir navigable waters, as are imposed, by this article 
of the compact, on the state 0^ Alabama, then this article is a mere 
regulation of commerce among the several states, according to the 
Constitution, and, therefore, as binding on the other states as 

In the case of Gibbons v. Ogden, 9 Wheat 196, after examining 
the preliminary questions res^ecHng the regulation of commerce 
with foreign nntions^ and among the states, as connected with the 
subject- matter there in controversy, Chief Justice Marshall said : 
*• We are now arrived at the inquiry: What is this power? 

*' It is the power to reguJate, that is, to prescribe the rule by 
which commerce \s to be governed. This power, like all others 
vested in Congress, is complete in itself, may be exercised to its 
utmost extsnt, and acknowkd^es no limitations other than are pre- 
scribed in the Constitution^ 1 hese arc expressed in plain terms, 
and do not aiTect the questions which arise in this case. If, as has 
been always understood, the sovereignty of Congress, though limited 
to specified objectis, is plenary as to those objects, tiie power over 


Pollard's Lessee v. Hagan et aL 

commerce with foreign nations, and among tbe several states, is 
vested' in Congress as absolutely as it would be in a single govern- 
ment having in its constitution the same restrictions on me exercise 
of the power as are found in the Constitution of the United States." 
As the provision of what is called the compact between the United 
States and the state of Alabama does not, by the above reasoning, 
exceed the power thereby conceded td Congress over tht ori^^nal 
states on the same subject, no power or ri^t was, by the compact, 
uitended to be reserved by the United Stsde^, nor to be grant^ to 
diem by Alabama. 

This supposed compact is, therefore, nothing more than a rega* 
lation of commerce, to that extent, among the several states, and 
can have no controlling influence in the excision of Uie case befoi^e 
us. This right pf eminent domain over the shores and the soils 
under the navigable waters, for all municipal purposes, belongs ex- 
clusively to the states within their respective territorial jurisdictions, 
andjhey, and they only, have the constitutional power to exercise 
it. To give to the United States Ifae right to transfer to a citizen 
the title to the shores and the soils under the navigsUe waters, would 
be placing in their hands a weapon which might be wielded greatly 
to the injury of stitte soverei^ty, and deprive the states of the power 
to exercise a numerous and important class of police powers. But 
in the hands of the states this power can never be used so as to 
a£^t the exercise Of any national right of eminent domain or juris- 
diction with which the United States have been invested by the 
Constitution. For, akiiough the territorial limits of Alabama have 
extended all her sovereign power into the sea, it^is there, as on the 
shore, but munii^ipal power, subject to the Constitution of the United 
States, ^^ and the laws which sliall be made in pursuance thereof.'* 

By the preceding course of reasoning we have arrived at these 
general conclusions : First, The shores of navigable waters, and the 
soils under them, Were not granted by the Constitution to the United 
States, but wer^ reserved to the states respectively. Secondly, The 
new states have the same rights, soverei&;nty, and jurisdiction over 
tUs subject as the original states. ThirSy, The right of the United 
Static to the public lands, and the power of Con^;ress to make all 
needful rules and regulations for the sale and diq>osition Aereof^ 
conferred no power to grant to the plaintiils the land in controversy 
in this case. The judgment of the.Supreme Court of ihe state of 
Alabama is« therefore, iiilirmed. 

Jfr: Justice CATRON dissented. 

The statute of 1836, jMid the patent of tiie United iStates fbimded 
on it, by which the land in contipovers^ was granted to Wm. Pol- 
lard's heirs, have on several occasions heretofere received the sanc- 
tion of this court as a valid title. 

h In the cause of Pollard's heirs t;. ICbbe; 14 Peters, 353, the 

JANUAHT TERM. 1846. »1 

Pollard's Lessee v. Hagaa et aL 

Supreme Court of Alabama haying pronounced an opposing claim 
under the act of 1824 guperior tolPoUard's, this court reversed the 
judgment and established the latter, after the most mature conside. 
ration. - - 

2. In the case of Pollard v. Files, 2 How. 5D1, the precise title 
was again brought before this court, and very maturely considered ; 
it was then said — (page 602) — ^^ This court held, when Pollard's title 
was before it formeny, diat Congress had the power to erant the 
land to him by the act of 1836 : on this point there was no difference 
of opinion at that time among the judges. The difference to which 
the Supreme Cpurt of Alabama refers, (in its opinion in the record,) 
grew out of the construction given by a majority of the court to the 
act of 1824, b}r. which the vacant lands east of Water street were 
granted to the city of Mobile.** 

On ttiis occasion the decision of the Supreme Court of Alabama 
was again reversed, and Pollard's heirs ordered to be put into pos- 
session, and they now maintain it under our two judgments. It is 
here for the third time. 

In the mean time, between 1840 and 1844, a doctrine had sprung 
up in the courts of Alabama, (previously unheard of in any court of 
justice m this country, so far as I know,) assuming that idl lands 
temporarily flowed with tide*water were part of the eminent domain 
and a sovereign right in the old states ; and that the new ones when 
admitted mto the union, coming in wiUi equal sovereign rights, took 
the lands thus flowed by implication as an incident of state sove- 
reignty, and thereby defeated the title of the United States, acquired 
either by the treaty of 1803, or by the compacts with Virginia or 
Georgia, Although the assumption was the courts, it was 
not entirely so in the political uiscusaons of the country ; there it 
had been asserted, that the new states coming in, with equal li^ts 
appertaining to the old ones, took the hig^ laiids as well as the low, 
by the same implication now successfully asserted here in re^d to 
the low lands ; and indeed it is difficult to see where the distmction 
lies* That the United States acquired in a coiporate capacity the 
right of soil under water, as well as of the hig^ lands, by the treaty 
with France^ cannot be doubted ; nor that the right of soil was re- 
tained and subject to grant up to the time Alabama was admitted as 
a state. Louisiana was admitted in 1812 ; to her the same rules 
must apply that do to Alabama. All acquainted with the surface 
of the latter know that many of the most productiye lands there, and 
now in successful cdtivation, were in 1812 subject to overflow, and 
have since been reclainaed by levees. 

It is impossible to deal with the question before us understand* 
in^ly, without reference to the physical geography of the delta of the 
Mi^issippi and the country around the gulf of Mexico, where the 
most yaluable lands have been made and are now forming hj alluvion 
de|>osits nf the floatmg soils brouj^t down by the great nvers ; the 


Pollard's Lessee v. Hagan et aL 

earikr Of which had become dry lands ^ but the more recent were 
flowed, wlien we acquired the country; and a?e in c[reatpart yet so : 
thus ntuated they have been purchased from the United States and 
reclaimed ; a process that is now in daily exercise. An as^mption 
that mud-flats and swamps once flowed, but long since reclaimed, 
had passed to the new states, on the theory of sovereign rights, did, 
at the first, strike my mind as a startling novelty ; nor have I been en- 
abled to relieve myself from the impression, owins to the fact in 
some degree, it is admitted, that for thirty years neimer Congress, or 
any state legislature, has called in question tl^e power of &e United 
States to grant the flowed lands, more than others :, the origin of 
title, and its continuance, as to either class, being deemed the same. 
A right so obscure, and which has lain dormant, and even unsus- 
pected, for so many years, and the assertion of which will strip so 
much ci^ property, and so many estates of all title, should as I ^ink 
be concluded by long acquiescence, and especially in courts of 
justice. ' 

Again : the question before us is made to turn by a majority of my 
brethren exclusively on political jurisdiction ; the right of property is a 
mere incident. In sucn a case, where there is doubt, and a conflict 
suggested, the political departments, state and federal, should settle 
the matter by legislation : by this means private owners could be pro- 
vided for and confusion avoided ; but no state complains, nor has 
any one ever complained, of the infraction of her political and sove- 
reign rights by the United States, or by their agents, ii^ the execution 
of the great trust imposed on the latter to dispose of the public do- 
main for the common benefit ; on the contrary, we are called on by 
a mere trespasser in the midst of a city, to assert and maintain this 
sovereign nght for his individual protection, in sanction of the tres- 

But as already stated, the United States may be an owner of pro- 
perty in a state, as well as another state, or a private corporation, or 
an individual may: That the proprietory interest is large, cannot 
alter the principle. I admit if the agents of the United States ob- 
struct navigation, the state authorities may remove the obstructions 
and punish the ofienders ; so the states have done for many years 
without inconvenience, or complamt. 

Nor can material inconvenience result. If a front to a city, or 
land for another purpose is needed. Congress can be appiied to for 
a grant as was done by the corporation of Mobile in 1824 : If the 
state where the land lies was the owner the same course would have 
to be pursued. The states and the United States are not in hostihty ; 
the people of the one are also the people of the other ; justice and 
donation is alike due from each. 

Connecticut was once a large proprietor in the North- West Terri- 
tory, (now Ohio.) She owned the shores of a great lake and the 
banks of navigable rivers : Can it be assumed that the admission of 


Pollard's Lesste •• Hagan et aL 

Ohio defeated the title of ConnecticYit, and that she coyld not grant ? 
The question will not bear discussion — and how can the case put be 
distii^guished from the one before us: Nay, how can either he dis- 
tinguished from the rights of private owners of lands above water, or 
under ttie water ? Yet in either instance, is the owner in fee de*^ 
prived of his property, on this assumption of severe^ lig^its. 

The front of the city of Mobile is claimed by the act erf" 1824| 
sanctioned by diis court as a valid grant in the five cases of PoHard 
V. Kibbe, 14 Petera; of The City of Mobile v. Eslava, 16 teeters, 
334; of tiie same plaintiff v. tiallet, 16 Peters, 26i ; of the same 
plaintiff V. Emanuel, 1 How. 95, and of Pollard v. Files, 2 How. 
691. Except the grant to Pollard, the act of 1824 confers the entire 
title, (so fiur as is Known to this court,) of a most valuable portion, 
and a very large portion, of the second cihr on the ffulf of Mexico, 
in wealth and population. This aet is declared void in the present 
cause ; and the previous decisions of this court are either directly, or 
in eflect, overthrown, and the private- owners stripped of all title. 
On this latter point my bretheni .and I fully aspree : Can Alabaiiia. 
remedy the evil, and confirm the titles by legislation or by patent ? 
I sajT by patent, because this state, Louisiana, Missisappi, and surely 
Florida, wiU of necessity have to adopt soma ^stem of giving title 
if it is possible to do so, aside from private legislation ; as the flowed 
lands are too extensive and valuable for the latter mode of grant in 
all instances. 

The charee of tiie state court to the jury was, that the act of Con- 
gress of 1836, and the patent founded on it, and also, of course. 
3ie act of 1824^ were void, if the lands |;ranted by them were flowea 
at IMffh tide when Alabama was admitted ; ana it was immaterial 
whether the mud-flat had been filled up and the water excluded by 
tiie ^abour of man or by natiiral alluvion. And this charge is de- 
clared to have been proper^ by a majority of this court. 

The decision founds itself on the right of navigation, and of no- 
lice connected with navigation. As d^practical truth, the mud-flats 
and other alluvion lands in the delta of the river Mississippi, and 
around the Gulf of Mexico, formed of rich deposits, have no c<m- 
nectbn with navigation, but obstruct it, and must be reclaimed for 
its furtherance. This is well illustrated by the recent history of Mo- 
bile. When the act of 1824 was passed, granting to the corporation 
the firoi^ of the city, it was exduaed from the navigable channel dT 
the river- 1^ a mud-fiat, sli^tly covered with water at hidi tide, of 
peihaps a tiiousand feet wide. This had to be filled up before' the 
city could prosper, and of course by individual enterprise, as the 
vacant space, as was apparent, must become city property ; and it is 
now formed into squares and streets, having wharves mid ware- 
houses. The squares are built up ; and tiie fact that that part of the 
city stands on land once subject to the flow of tide, wul soon be 
matter of Ustoiy. At New Orleans, and at most other places front- 

VoL. m.— 30 V 2 


Pollard's Lessee v. R«gaii et aL 

ing rivers where the tide ebbs and flows, as well as on the ocean 
and great lakes^ navigation is facilitated by similar means; without 
'their employment few city fronts could be formed, at all accommo- 
dated to navigation and trade. To this end private ownerahip is 
indispensable and universal; and some one must make title. If the 
United States have no power to do so, who has ? I repeat, can Ala- 
bama grant the soil ? She disavowed all claim and title to and in it, 
as a condition on which Congress admitted her into the union. By 
the act of March 2, 1819, (3 Story's Laws, 1726,) the Alabama 
territoiy was authorized to call a convention, and form a state con- 
stitution; but Congress imposed various restrictions, and among 
others the following one: ^^And provided always, that the said con- 
vention shall ijrovide by an ordinance, irrevocable wiOiout the con- 
sent of the United States, that the people inhabitinc^ said territory do 
agree and declare that they for ever disclaim all ri^t and title to the 
waste or imappropriated lands lying within the said territory, and 
that the same shall be and remain at the sole and entire disposition 
ofthe United States." 

On the 2d of August, 1819, Ae convention of Alabama formed a 
constitution, and adopted an ordinance declaring ^^that this conven- 
tion, for and on behalf of the people inhabiting this state, do ordain, 
agree, and declare, that they for ever disclaim all right and title to 
the waste or unappropriated lands lying within this state; and that 
the same shall be and remain at the sole and entire disposition of 
the United States.'' In addition, all the propositions offered by the 
act of March 2, 1819, were generally accepted without reservation. 

On the 14th of December, 1819, Congress, by resolution, admit- 
ted Alabama as a state, on the conditions above set forth. 3 Sto- 
ry's Laws U. S. 1804. 

That the lands in contest, and granted by the acts of 1824 and 
1836, were of the description of ^^ waste or unappropriated," and 
subject to die disposition of the United States, when the act of Con- 
gress of the 2d of March, 1819, was passed, is not open to contro- 
versy, as already stated; nor has it ever been controverted, that 
whilst the territorial government existed, ariy restrictions to ^ve pri- 
vate titles were imposed on &e federal government ; and &is in re- 
wxrd to any lands that could be granted. And I had supposed that 
mis ri^t was clearly reserved by the recited compacts, as well as on 
the general principle that the United States did not part with tilie 
right of soil by enabling a state to assume political jurisdiction. 
Tnat die disclaimer of Alabama, to all ri^ht and title m the waste 
lands, or in the unappropriated lands, lying within the state, ex- 
cludes her from any interest in the soil, is too manifest for debate, 
aside from all inference founded on general principles. It foUowSi 
if the United States cannot giant these lands, neither can. Alabama,; 
and no individual title to ttem can ever exist. And to this conclu- 
mon, as I understand tiie reasoning of the principal opinion, &e doc- 

JANUARY TERM, 1845. 285 

Pollard's Lessee v. Hagan et aL 

trine of a majority of my brethren msdhly tends. The assumption 
is, that flowed lands, mcluding mud-flats, extending to navigable 
waters, are part of such waters, and clothed with a sovereign politi- 
cal right in the state ; not as property, but as a sovereign incident to 
navigation, which belongs to the political jurisdiction ; and bein^ 
part of state sovereignty, the United States could not withhold it 
from Alabama. On this theoiy, the grants of the United States are 
declared void: conceding to die theoiy dl the plenitude it can 
claim, still Alabama has onljr political jurisdiction over the thing; 
and it must be admitted that jurisdiction cannot be the subject of a 
private grant 

The present question was first brought directly before this courts 
(as I then supposed, and now do,) in the cause of The City of Mobile 
V. Eslava, in 1840, when my opinion was expressed on it at some 
length. It wiU be found in 16 Peters, 247, and was in answer to 
the opinion of the Supreme Court of Alabama, sent up as part of the 
record ; having been filed pursuant to the statute of that state, found 
in Clav's Dig^, 286, sec. 6. My opinion, then given, has been 
carefully examined, and so iSeur as it goes, is deemed correct, (except 
some errors of the press,) nor will the reasons given be repeated. 

In HaUet's case, 16 Peters, 263, reasons were added to the for- 
mer opinion. And again, in the case of Emaauel, the question is 
referred to, in an opinion found in 1 How. 101. 

In Pollard's Lessee v. Files, 2 How. 602, the question, whether 
Congress had power to grant die land now in controversy, was treat- 
ed as settled. As the judgment was exclusively founded on the act 
of 1836, (the plaintifl* having adduced no other title,) it was impos- 
sible to reverse the Judgment of the Supreme Court of Alabama on 
anv other assumption t&n that the act of Congress conferred a valid 
title. I delivered that opinion, and it is due to myself to say, that 
it was the unanimous judgment of the members of ihe court then 

I have expressed these views in addition to those formerly given, 
because this is deemed the most important controversy ever brou^t 
heioie this court, either as it respects the amount of j^operty m- 
volved, or the principles on which the present judfi;ment proceeds— 

trinciples, in my judgment, as applicable to the hi^ lands of the 
Fnited States as to the low lands and shores. 


WnxuinT* Caey aitd Samusl T. Cart, PLmniFrsy v» Edwaw 


Since the passage of the act of Congress of March 8d, 1889, chap. 88, sect 8, 
which requires collectors of the MiMoms to place to the credit of the treasurer 
of the United Sutes all money which they receive for unascertained Katies or 
for duties paid nnder protest, an action of assumpsit for money hhd and r»> 
ceived will not lie against the collector for the return of such duties so i^ 
ceiyed hy him. 

In what other modes the claimant can have access to the courts of justice^ fSbiM 
court is not called upon in this case to decide. 

This case came up firom tbe Circuit Court of the United States 
for the southern district of New York, oh a certificate of division in 
opinion between the judges thereof. 

The action was brought in the Circuit Court to recover money 
paid to Curtis, as collector of the port of New York, for duties. 
The declaration contained the common money counts, and the de- 
fendant pleaded the genei^ issuci. The cause was tried at Novem- 
ber term, 1842. 

The jury found for the plaintifls, subject to the opinion of the 
court, among odier thmgs, 

1. That the plaintifls pai4 tl e Bimi of $181 75 to the defendant^, 
on the 3d July, 1841, for duties on the goods imported as being 
raw silk. 

2. That the goods on which thie duties were demanded and paid, 
were not raw suk, but a manufactured article. 

3. That the money so paid was under a written protest, made at 
the time of payment 

4. That the money had been paid into the Treasury by tiie de- 
fendant, in the month of July, 1841, and before the commencement 
of this suit. 

Upon the argument of this cause, after verdict, several questions 
arose ; among others, the following, flz: : ' 

Whether or not the 2d section or tiic act of Congress, approved 
on the 3d day of March, 1839, entid^d ^' An act making appn^ria- 
tions for the civil and diplomatic ex^nses of government for the 
year 1839," was a bar to the action ? 

On this question the opinions of tiie judges were opposed. 
Whereupon, on motion of die plaintifis. by their counsel, it was 
ordered, diat ihe foregoing state of the pleadings and facts, which 
is made imder the direction of the judges-, be certified under the seal 
of this courtj according to the statute in' such case made and pro- 
vided, to the Supreme Court of the United States, to the end, that 
the question on which the said disagreement has happened may b^ 
finally decided. 

The cause was argued (in writing) bv Sullivtmj for the plaihtifi 
in error, and JfeUon^ attorney-general, lot the defendant 

JANUARY TERBl, 1845> m 

Garj fw Cartii. 

jSUKtMm, for plaintifis. 

This cause comes before the court on a certificate of a (Uvisioii 
from the Circuit Court of the United States for the southern district 
of New York, 

The plaintifis, as importers, had a perfect right to hare and main- 
tain this action against the defendant upon the &cts as found in this 
cause. Elliott v. Swartwout, 10 Peters, 137. 

The 2d section refieired to in the certificate of division (9 Laws 
U. S. 1012) does not take away this right of action. 

Because thi» right existed at common law, and the statute does 
not express a clear intent to do so. Bac. Abr. tit SkMe; 19 Vin. 
Abr. 524, sect 125. 

Because this rig^t is not taken firom the importer by necessary im- 
jilication ; but, on the contrary, the jproanpectiye langukge of this sec- 
tion shows, that Conmss contemptated that actions a^inst collec- 
tors would and diould be broug^ in future, and sustamed, as thejr 
had been in all cases of illegal exaction of duties, if paid under su^ 
ficient- protest This section provides, that money paid to a coUeo- 
tor unaer protest siuJl not be held by him to await th^ result of any 
Iiti^;adon in relation to the rate or amount of duty legally chargeable. 
This is all prospective, and relates to suits which may be brought in 
future ; for there is not a word that limits the efiect of the provision 
in Hub section to ttie past or present, but words in the future 
tense only are used. Th^; section commences with the words, 
** From and -after the passage of tibis act," and refers only to money 
hereafter to be received by collectors. The whole tenor of the sec- 
tion imports an intent not to take away the right of litigation for 
money paid under protest. But if it be urged, that the del^;ation 
of a new {>ower to the secretaW of &e*Treasury to take cognisance 
of such claims for repayment of duties illegally exacted, imports, by 
necessary implication, that Congress intended to vest in him exclu- 
srrdy the rimt of ascertaining me facts in such cases, and of d^d- 
iDff use law mereon, the plaintifis respectfully ask the court to con- 
mer in what widely different language such an intent must needs 
hxvt been expressed. There must have been an express prospective 
prpvision of some mode of proving the fects of each case, consistent 
with t^ constitutional guaranty of die right of trial by jury ; for up 
to the passing of the act in question, the law had, by neces^ury im- 
plicadon, and by the known course of judicial proceedings in such 
cases, recognised ibia ri^t as the right of all impjorters i)ajring such 
duties under protest,^and thi^ means of an ulterior decision of all 
questions of larw other tfaaoi the opinion of the secretary would have 
beenprovidecl; wtoeas ^ )aw, by authorizing the secretary to re- 
pay audi illegally exacted duties when he should be satisfied they 
ou^ to be repaid, has left open to importers their knowii and con- 
stitutional rijB^ of recourse to the tribunals of law when he should 
not be satisfied; so ^diat the true conslructioa of die provision giving 


Garj V. Oartls. 

him such a power may be carried into full efiect, to the utmost infer- 
rible intention fix>m the terms of this section, quite consistently with 
leayinff to all importers their remedy at law, as well as the privilege 
of applying to the secretair at their option. 

Because the purpose of this section appears to be two*fold, to wit : 
the security of public moneys receiyed for duties under protest, 
and the repayment of them by the secretary in all cases where he 
may be satisfied they ought to oe repaid, without touching, varying, 
or altering, in any manner, the right of action by importers agaiii^ 
the collector. 

Because the collectors have alws^ been required by law to pay 
oyer all moneys, wi&out reference to protests. See ^^ An act to 
reeulate the collection of duties on imports and tonnage," Acts of 
5th Congress, chap. 128, sect 21, (3 Laws U. S. 167,) which pn>- 
yides, i^er o/io, that the ^^ collector shall at all times pay to the 
Ofder of the officer who shall be authorized to direct the payment 
thereof, the whole of the monejrs which they may respectively re- 
ceive by yirtue of this act ; (such moneys as they are otherwise by this 
act directed to pay, only excepted ;)" and it is by virtue, in part, 
of this veiy act that ^e collector demanded and received the money 
paid in this case. 

The monej being withdrawn from the collector's hands by law, 
it would seem unjust that he should be exposed to a judgment and 
execution thereon ; but this section provides that it shall be the dut)r 
of the secretary to refund, and thus the collector is indemnified, 
which is equivalent to a right of retaining money paid under protest, 
as laid down in the case of Elliott v. Swartwout, 10 Peters, 164, 
Tvhere the court, speak of the collector's protecting himself by re- 
taining the money or claiming an indemnity ; but if not strictly an 
indemnity, and it should be found in practice that the collector was 
not re-imbursed, he would refrain from exacting duties in doubtful 
cases until he had the sanction of the secretaiy, and his assurance 
thai the money should be repaid upon die recovery of a judgement 
at law. And this court held, in the case of Tracy and Balestier v. 
Swartwout, 10 Peters, 98, 99, that the personal inconvenience to 
ibe collector is not to be considered. 

The collector is liable for money illegaily exacted and paid under 
protest, althou^ the same may have been turned over to the go* 
vemment under the requirements of the acts of Congress. 

In the case of Townson v. Wilson and others, 1 Campb. 396, 
Lord EUenborough says, ^^ if any person gets money into his hands 
illegally, he cannot discharge himself by paying it over to another ;" 
and this opinion is entitled to more consideration than nisi prku 
decisions usually are, because LonI Ellenborough states, that he had 
consulted.the other judges, and that they agreed witbhim. 

In flie case of Sadler v. Evans, or Lady Windsor's case, 4 Burr. 
1986, it is held, that where notice is given, the agent may and ought 

JANUARY TERM, 1846, »9 

Carj fw Cartii. 

to be sued, and cannot exonerate himself by payment This case 
is cited and approved in Elliott v. Swartwout. 

In the Commentaries of his Hpnbur Jadge Story, on Agency,- p. 
311. § 307, it is laid down, that ^* where money is obtained 'from 
diird persons, by public officers, illegally, but under colour of office, 
it may be recovered back again from them if notice has been given 
by the party,' at the time, to the officer, although the money has 
been paid ofa'to Ike ^vemment'' In tibe case of Elliott v. Swart« 
wout, 10 Peters* &8,-it is held, that <^ where money is illegally de- 
manded and received by an agent, he cannot exonerate himself 
from personal responsibihty by paying it over to his principal ;" and 
in the case of Bend v. Hoyt, 13 Peters, 267, it is held, that << there 
is no doubt the collector is generally liable m an action to recover 
back an excess of duties paid to him, as collector, where the duties 
have been illegally demanded, and a protest of the illegality has 
been made at the time of payment, or notice then given that the 
party means to contest the claim, whe&er he has paid .over the 
money to the government or not'' 

If It be objected that the payments here referred to are voluntary, 
tiie answer is, that it is evident that the contraiy is ihe fiaict U the 
cases and the remarks in the Commentaries above referred to had 
been made concerning an ordinary agent, there might be ground for 
such an objection ; but a coUecfor is the defendant in each case, and 
government officers are specially referred t«/ in th& Commentaries, 
and if there had been any distinction between the kinds of payments, 
ttiat distmction would have been referred to, for it was well known 
to the court, that collectors and other government officers were then 
compelled by law to payover all monejr received by them ; and, as 
has been previou3ly snown, the section in question is no more com- 
pulsoiy than the laws in force at the time o'f those decisions, and. 
It follows, that they are controlling and decisive in this case. 

The case of Greenway v. Hurd, 4 Term Rep. 553, 554, does 
not appljr, because it &£PJ^U9 to have been a voluntary payment, and 
> deci(f • • • 

is so decided to be in iSUott v. Swartwout 

[Of Mr. JVelsan^s argument in reply the reporter has no notes.] 

Mr. Justice DANIEL delivered the opinion of the court 
In order to arrive at the answer which should be given to the 
question certified upon this record, the objects first to be sought for 
are the intention and meaning of Confess in the enactment of the 
2d section of die act of Marcn 3d, 1839, under which the question 
sent here has been raised. The positive language of the statute, it 
is true, must control every other rule of interpretation, yet even 
this may be better understood by recurrence to the known public 
practice as to matters in pari materia^ and by the rules of law as 
previously expounded by the courts, and as applied to and as haviii^ 
influenced that practice. The law as laid dowirl^y this court with 


Gary v. Cartis. 

respect to collectors of the revenue, in the case of Elliott v. Swart* 
wout, 10 Peters, 137, and a^in incidentally in the case of Bend o. 
Hoyt, 13 Peters, 263, is precisely that which is applicable to agents 
in private transactions between man and roan, viz. : that a voluntaiy 
payment to an a^ent .without notice of objection will not subject the 
a^nt who shall nave paid over to his principal ; but that payment 
with notice, or with a protest against the legality of the demand, 
may create a liability on the part of the agent who hall pay over to 
his principal in despite of such notice or protest. Such was the 
law as announced fiom this court, and Congress must be presumed 
to have heen cognisant of its existence; abd as die pecuhar power 
ordained bv the Constitution to prescribe rules of right and of 
action for all officers as well as others fidling i^idiin the legitimate 
scope of federal lerislatidn, they must be supposed to have been 
equally cognisant of the effects and tendencies of this court's deci- 
sions upon the collection of the public revenue. With this know- 
led^ necessarilv presumed for them. Congress enact the 2d section 
of 3ie act of '1S39. It should not be overiooked, for it is very ma- 
terial in seeldng fof the views of Congress in this enactment, that 
the court, in the case of Elliott t;: Swartwout, in its reasoning upon 
the second point submitted to ^em, say, that the claimant by giving 
notice to the' collector would ^^ put him on his guard," by reauiring 
him not to pay over the money. The^ fieulher saj, that the collector 
would, by &e same means, be placed in a situation to claim an in- 
demai^. The precise mode in which this protection of the collec- 
tor was to be accompli^ed, or his indemnity secured, it is true, the 
court have not explicitly declared ; but it is thought to be no forced 
contouctioji of their language to explain it as sanctioning a right of 
retainer in the collector of the funds received by him for the govern- 
ment; for what shield so effectual could he interpose between him- 
self and the cost and hazards of fr^uent litigation? Indeed, this 
wxHild appear, according to the opinioii of the court, that very pro- ' 
tection Wfiidi justice and necessity would equally warrant.* In 
practice, this retainer has, with or without warrant, b^n resorted to. 
And now let us look to the language of the act of 1839, chip. 
82, § 2. ^^ That from and after the passage of this act, all money 

gdd to any t^Uector of )he customs, or to any person acting a^sudi, 
r unascertained duties, or for duties paid unaer protest againk the 
r^ or amount dC duties charged, shall be placed to the credit of 
the treasurer of the. United States, kept and disposed of as all other "" 
money paid for duties id required by law, or by regulation of tiie 
Treasury Department, to be placed to the credit of the treasurer, kept 
^ and disposed of ; and it diall not be held -by aedd collector or person 
acting as 91^, to await ai y ascertainment of duties,- or the result 
of any litigation in relation to the rate or amount, of duty legally 
chargeable and collectable in any case where money is so paid : but 
ixdienever it shall be shown to the satis&ction of the secretaiy of the 


Carj 9. Curtis. 

Treasury, that in any case of unascertained duties, or duties paid 
under protest, more money has been paid to the collector, or to the 
person actinjB^ as such, than the la^r requires should have been paid, 
it shall be his duty to draw his warrant upon the treasurer in favour 
of the person or persons entitled to the over-payment, directing the 
said treasurer to refund the same out of any money in the Treasury 
not otherwise appropriated." What is the plain and obvious im- 
port of this pro ion, taking it independently and as a whole? It 
IS that all moneys thereafter paid to any collector for unascertained 
duties, ot duties paid under protest, (i. e. with notice of objection 
by the payer,) shall, notwithstanding such notice, be placed to the 
credit of the treasurer, kept and disposed of as all other money paid 
for duties is required by law to be kept and dittiosed of; that is, 
thev shall be paid oyer by the collector, received by the treasurer, 
and disbursed by him in conformity with appropriations by law, pre- 
ciselv as if no notice or protest had been given or made ; and uiall 
not be retained by the collector (and consequently not withdrawn 
£rom the uses of the government) to await any ascertainment of 
duties, or the result of any litigation relative to the rate or amount 
of duties, in any case in which money is so paid. 

This section of the act of Congress, considered independently 
and as apart from the beta and circumstances which are known to 
have preceded it, and may fairly be supposed to have induced its 
enactment, must be understood as leavmg with the collector no lioi 
upon, or discretion over^ the sums received by him on account of 
the duties described therein ; but as convertme him into the mere 
bearer of those sums to the Treasury of the United States, through 
the presiding officer of which department tfaev were to be dispensed 
of in conformity with- the law. Looking then to the immediate 
operation of this section upon the conclusions either directly an* 
noimced or as implied in the decision of Elliott v. Swartwout, how 
are those conclusions affected by it? They must loe influenced by 
consequences like the following: That whereas by the decision 
above mentioned il is assumed mat hy iiotiee to the collector, or by 
protest against payment, a personal habilitjr for the duties actually 
paid, attaches upon, and that for his protection a.correspondent right 
of retainer is created on his part ; it is therebjr made known (i. e. 
by the statute) that under no circumstances m future should the 
revenue be retained in the hands of the collecto)* : that he should in 
no instance be regarded by those making payments to him as having 
a lien upon it, because he is announced to be the mere instrument 
or vehicle to convey the duties paid into his hands into the Treasury : 
that it is the secretary of the. Treasury alone in whom the rights ojf 
the government and of the claimant are to be tested : and that who- 
soever shall pay to a collector any money for duties, must do so 
subject to the consequences herein declared* Such, from the 3d 
day of March, 1839, was the public law of the United States; it 

Vol, m.— 31 X 


Carj «. Cnrtijk 

operated as notice to ereiy one ; it apptied, of course, to ereiy citi- 
zen as wdl as to officers concent^ in the reflations of the revenue ; 
and as it removed the implications on whicn the decision of Elliott 
V. Swartwotlit materially rested, that case cannot correctly control 
a question arising under a diflerent state of the law/ and under a 
Qondition of die parties^ also essentially diflerent. 

It will not be irrelevant here to advert to other obvious and 
cogent reasons by which Congress ma]^have been impelled to the 
enactment in question ; reasons whidi, it is thotl^itt will aid in fiir- 
nidun^ a solution of their object.' Unifcmnity of imports and ez« 
dses IS required by the Constitution. Rie^larity and certainty in 
tiie payment of the revenue must be admitted ^y eveiy on$ as of 
primary importance : they may be said almost to constitute the basis 
of i^ood fenh in the transactions of the government ; to be essential 
to its practical existence. Within the extended liinits of this coun* 
tiy are numerous coUection-districts ; many officers must be intrusted 
with the collection of the revenue, and persons much more nume- 
rous, widi every varie^ of intere^ and purpose, are daily required 
to mske payments at the ports of entry. To permit the receipts at 
tiie customs to. depend on constructions as numerous as are the 
agents eii^loyed> as various as might be the designs of those who 
are interested ; ox to require that those receipts shall await a settle- 
ment of every dispute or objection that might roring fix>m so many 
conflicting views, would be^reat\y to disturb, if not to prevent, the 
unifonnity prescribed by the Constitution, and by the same means 
to withhold from the government the means of fulfilling its import- 
ant enga^ments. In the Tiew of mischieft so serious, and wrdi 
,tiie intention of preventing or remedying them, nothing would seem 
more probable or more reasonable, we mi^t add more necessary, 
thai^ uiat the government should endeavour to devise a plan by 
whidi, as fiBff as practicable, to retain its fiscal operations withm its 
x>wn control, thereby insurinje; that unifonnity in practice, enjoined 
by the theory of the Constitution, and that punctuality which is 
indiroensable to the benefit of all. Such a ^lan has Consress de- 
vised in the act in question. We have no doubts of the oDJects or 
tiie iipport of that act ; we calmot doubt that it constitutes the 
secreta^ of the Treasuiy the source whence ipstructions are to 
flow: that it controls bom die position and the conduct of coUect- 
ors of the revenue : that it has denied to tnem eveiy right or au&ori- 
ty to retun any portion of the revenue for purposes of contestation 
or indemnity ; has ordered and declared those collectors to be the 
mere organs of receipt and transfer, and has made the head of (be 
Tr^uBuxy Department the tribunal for the examination of claims for 
duties said to have been improperly paid. 

It has been urged &at me clause of the act of 1839 declaring 
fliat the mcmey received duJl not be held b^ any collector to await 
any aseertamment of duties, or the result of any htigation in relation 

JANUARY TERBI, 1846. %» 

Carj V. Curtis. 

to tba rate or amount of duties legally chargeable and coHeotaUe 
in any caae where money is so {mid; shows that Congress did not 
mean to deprive die parhr of his aetion of assumprit against tlie 
edl^ctor : that litigation of that descripticm was still contemplated, 
and flnt. the only object of the law was .to place die money in dis- 
pute in the po sse ss i on of die treasurer, to await i| decision, instead, 
dflearing it ii^thehaiids of the collector. The court cannot assmt 
to &is^constractitiii« It wfll be remembered that the two principal 
cases in which collectors have claimed the rigfai to retam, have 
been those of unascertained duties, and of suits brought, or ttireal* 
ened to be brou^t, for the 'recovery of duties paid under protests 
It is matter 6! histoiy that tiie alleged right to retain on these two 
aocounte, had led .to great abuses, and to much loss to thepublic ; 
and it is to these two subjects, tfiorefore, that thct act of Congress 
particularly address^ itself. ' It begms by declaring that all money 
reeoved on di^ese accounts diaU be paid into the Treasury; and 
&en, in order to diow that tfie collector is not the person with 
whom any claims-for this money are to be adiHsted, or -mo is to be 
held responsible for. it^ the act proceeds to declare that the money 
shall not remain 'in his hands even if the protest is followed by a 
suit : that, notwiAstanding suit may be brou^t against him, he 
AbU still pay the monevinto the Tr^sury, and that me controversy 
shall be adjusted with the secretary. Congress supposed, probably, 
that a party miftht choose to sue the collector, as has been done m 
fliis instance; out it does not by any means follow, that it was 
intended to make him liable in the suit, or to give die partv the 
ri^t of recovery against him. The words used go to show, 
that neither a protest wUch is mentioned in the first jpart of the 
section, nor a suit which is mentioned in the clause or which we- 
are speaking, diall be a pretext or excuse for retaining the money^ 
Suppose the wofds in relation to a litigation had been omitted, and 
the kw had said, that die coUdctor diould not retain the money for 
any asceitainment of duties, but that the secretary of the Treasury 
in that case, as well as in die case of duties paid under protest, 
should adjust the claim and pay what was really due. The omis- 
sion supposed "^ould have strongly implied that, if there was liti- 
gation, he might letain, and it might be said with mach diow of 
reason, that by forbidding. him to retain for unascertained dutie^ 
but not forbidding him to retain in case of Bti^tion for. duties j^da 
under motest, implied that he could not retam for die former but 
jBifjbi m die latter. 'We holu it not a logical mode of reasoning 
where the omission of words would evidendy lead to a- particular 
conclusion, to aigue that their insertion can do the same thine. 
Berides, the' Utigjation spoken of, and which is said to lead to this 
result, is a litigation for duties |)aM under protest, and not for over- 
paymoits of unascertained duties. If these words were intended 
to sanctiofi suits against collectors for the former, why are litigations 


Gary «. Cartis. 

for ike latter not also countenanced ? Independently of this statute, 
the collector might have been sued for over-payments on unascer- 
tained duties a« well as for dutiei paid under protest And it can 
hardly be reconciled with reason or consistency that Congress de- 
signed to preserve the ri^t of suit in the one casQ) and to deny it 
in the other. Yet if these words hav« the force contended for by 
the defendant in error, they give the rieht of action against tfie eoU 
lector for duties paid under protest onw, leaving the parQr who has 
overpaid unascertained and estimated uutics, no rem^y buttiiat of 
resorting to the secretary of the Treasury. It would be difficult tc 
assign any fit>od reason for such a diversity ; we think none such 
was intendra, that none such in reality existe, that the law intends 
merely to declare that if the protest is followed by a suit, the duties 
in that case as well as in the other, shall be paid into the Treasuiy 
and shall not remain in the hands of the collector jo abide the result 
of the suit. The conclusion to which we have coipe upon this 
statuteis greatly strengOiencd by the act of Con^tfss of May 31st, 
1844, chap. 31, which,> in suits brought by the United States for the 
enforcement of the revenue laws, or for the collection of duties due 
or alleged to be due on merchandise imported, authorizes a writ of 
error from this court to the Circuit Courts without regard to the 
sum in controversy. The object of this law undoubtedly was, to 
obtain uniformity of decision in regard to the duties imposed. 
Prior to the act of 1839 there were often diflerrnces of opimon in 
the circuits in the constructioji of the laws, and in instilnces too in 
which the amount in controversy was too small to. enable either 
party to brin^ them here for'reviad by writ of error. It can hardly 
then be imagined that when Congress was taking measures express* 
]y to secure uniformity of decision and practice in relation to the 
amount of duties imposed by law, they would have confined the 
writ of error to cases brought by the United States, when they were 
of small amount, and refused it in suits against collectors in inmilar 
controversies, if they supposed that such suits could still be piam* 
tained.. Indeed it has heretofore been in this latter form tiiat the 
amount of duties claimed has been far more frequently contested, 
than by suits brought by the United States. And if this form of 
trying the question had not been intended to be taken away by the 
act ot 1839, there dould \ivivt been no reason for excludinjg it from 
the act of 1844. For the purposes obviously designed by tliis law, 
it would have been much more impcrtant to the public to have 
allowed the writ of error in suits against collectors, than in ^its 
instituted by the United States, suppotong suits of the former de* 
scription to be still maintainable ; and the omission of such a reme* 
dy strongly implies that the legislature supposed such suits could 
be no longer maintained. 

• It is contended, however, that the language and the purposes Of 
Congress, if really what we bold them to be declared in the statute 


Carj V. Curtis. 

of 1839, cannot be sustained, because ther would be repugnsuit to 
Ae Constitution, inasmuch as the^ woula debar the citizen of hi^ 
ri^t to resort to &e courts of justice. The supremacy of the Con- 
stitution oyer all officers and authorities, both of the federal and state 
governments, and the sanctity of the rights guarantied by it, none 
will question. These are coneessa on all sides. The objection above 
referred to admits of the most satisfactory refutation. This may be 
found in the following positions, familiar in this and in most other 
goremments, viz. : that the government, as a general rule, claims 
an exemption from being sued in its own courts. That although^ as 
being charged with the admibistration of the laws, it will resort to 
those courts as means of securing this ^reat end, it wiU not permit 
itself to be impleaded therein, save in instan6es forming conceded 
and express exceptions. Secondly, in the doctrine so often ruled 
in this court, that the judicial' power of the United States, althoujgfa 
it has its ori^n in the Constitution, is (except in enumerated m- 
stances, applicable exclusively to this court) dependent for its dis* 
tribution and organization, ana for the modes of its exercise, entirely 
upon the action of Congress, who possess the sole power of creating 
the tribunals (inferior to the Supreme Court) for the exercise of the 
judicial power, and of investing them with jurisdiction dther limited, 
concurrent, or exclusive, and of withholding jurisdiction from them 
in the exact de^ees and character which to Congress may seem 
proper for the public good. To deny this position would be to ele- 
vate the judicial over the legislative branch of the ^vemment, and 
to give to the former powers limited by its own discretion merely. 
It follows, then, that the courts created by statute m\ist look to the 
statute as the warrant for their authority ; certainly tiiev cannot go 
beyond the statute, and assert an authority with wluch they maynot 
be invested by it, or which may be clearly denied to them. This 
argument is in nowise impaired by admitting: that the judicial power 
dial] extend to all cases arising under the Constitution and laws of 
the United States. Perfectly consistent with such an admission is 
the tiruth^ that the organization of the judicial j^ower, the definition 
and diistribution of the subjects of jurisdiction in the federal tribunals, 
and the modea of their action and authority, have been, and of ri^t 
must be, the work of the legislature. The existence of the Judicial 
Act it^lf, with its several supplements^ furnishes proof uhanswer- 
able on this point. The courts of the United States are all limited 
in their nature and constitution, and have nt)t the powers inherent 
in courts existing by prescrijption or by the common law. 

In devising a system for imposing and collecting the public re- 
venue, it was competent for Congress to designate ue officer of the 
goyemment in whom the rights of that government should be repre- 
sented in any conflict which might arise, and to prescribe the man- 
ner of trial. It is not imagined, that by so domg Congress is jusdy 
chargeable with usurpation, or that the citizen is thereby deprived 



Carj V. Cartii. 

othid rights. There is nothing arbitrary in such airaiigements ; tbqr 
are general in their character ; are tfa^ result of principles inherent 
in the goY^mment ; are defined and promulgated as the public law. 
A more ^trildn^ example of the powers exerted by the goyemmenf, 
in relation to its fiscal concerns, than is seen in theact of 1839, is 
the power of distress and sale, authorized by the act of Congress of 
May 15th, 1820, (3 Stoiy, 1791,) upon adjustments of accounts by 
the first comptroller of the Treasury. This very strong and summary 
priceeding has now been in practice for nearly a quarter of a cen- 
tury, without its regularity having been questioned, so far as is known 
to the court The courts of the United States can take cognisance 
only of subjects .assigned to them expressly or by necessary implica* 
tion ; a fortiori^ they can take no cognisance of matters that by law 
are either denied to them or expressly referried ad aliud examen. 

But whilst it has been deemed proper, in examining the question 
referred by the Circuit Court, to clear it of embarrassments ^ith 
which, firom its supposed connection with the Constitution, it is 
thought to be environed, this court feel satisfied that such embar- 
rassments exist in imagination only and not in reality : tbat the case 
and the question now before them present no interference with the 
Constitution in anv one of its provisions, and may be, and should be 
disposed of upHon tne i)laine8t principles of common right. In tesdnff 
Aese propositions it ia proper to recur to the ca$e of Elliott and 
Swartwout, and acnin to bring to view the grounds on which^at 
case was ruled, it was, unc^uestionably, decided upon princ^lea 
which may be admitted in ordmary case's of agency, which expressly 
recognise the right, nay, the duty of the agent to retain, aha make 
his omission so to retain^ an inmdient in the gravamen or breach of 
du^, whence his liability and his promise are implied by the law. 
The lanmag^ of the court, 10 Peters, 164, is (his : ^^ There can be 
no hardSiip in requiring the partv to aye notice to die collector that 
he considers the duty^ claimed iUegai, and put him on his guard by 
requiring him not to pay over the money. The collector^woidd then 
be placed in a atuation to claim an indemnity fix>m the government. 
But if the party is entirely silent, and no. intimation is given of an 
intention to seek repayment of the money, there can be no eround 
upon*which the collector can retain the money, or call upon die go* 
Temment to indemnify Imn agaipst a suit" Here then the. ri^t 
and the duty of retainer are sanctioned .in the officer ; without them 
the notice q>oken of would be* nugatory — a vain act,, which the law 
never requires. And this ri^t and tUs duty in the officer.. and this 
injunction of notice to him, must all be understood ana are pro- 
pounded m this decision as principles or precepts of ihe law, widi the 
knowledge of which each of the parties must stand aflecte4 

The action of assumpsit for money bad and receivedyit is aid by 
Ld. Mansfield, Burr. 1012, Moses v. Mac&iien, will he in geitem 
irtienever die defendant m received vMmj which is the property 

JANUARY TgRBl, 1845> . 9iT 

Oarj •• Our tit. 

of the plamdffy and which the defiendant is obliged bj the ties of 
nataral justice and eoaihr to refund. And bj^uller, Justice, in 
Stratton v. RastaU, 2 T. iL 370, Mthat diis action has been of late 
years extended pa the principle of ita being copsidered like a bill in 
equi^. And, therefore, in order to recoTer monqr in this form of 
action the paity must diow that he has e<|uitT and conscience on his 
side, and could recover in a court of equity, v These aie.the gene- 
ral grounds of the action as given frombigb authority. There must 
be room for implication as between the pvties to tfie action, and the 
recoveiy must oe e^ egtio et banoj or it can never be. If die action is 
to depend on the principles laid down by tiiese judges, and en>e- 
dally by Buller, a case ot hardship merely could scarcely be founded 
upon them ; much less could one of injusdce or expression, nor even 
one which arose* from irregularis or ^discredon in the plaintiff's 
own conduct. So &r aathe fiabifity of agents in this fonn of action 
appears to have been considered, die general rule certainly is, that 
the action Uiould be brou^ against the principal and not aeamst a 
known agent, who is disdiax]^ from liability by a bond fide pay« 
ment.over to his principal, unless anterior to making payment 
over he shall have had notice from Ae plaintiff of his n^t and of 
his intention to claim die monqr. The absence of notice will be an 
exculpation of the agpit in every instance. And widi regard to the 
^fect of the notice in &dng liability upon die aoent, that effect is 
dependent on die known powers of the agent ana the character of 
hk agency. If, for instance, the agent was known to be a mere car- 
rier or vehicle to transfer to w employer the amount received, pay- 
ment to the agaat with such knowledge, ahhoug^- accompanied with 
a denial of the justice of the demand* would seem to exclude every 
idea of an agreement express or implied on the part cf tiie agent to 
refund; and cduld furnuii no ground for tins action against the 
agent who should pay over the nmd received to his princi^ This 
doctrine is bdieved to be sanctioned by the cases of Greenaw^ v. 
Hurd, 4 T. R. 563, of Coles v. Wri^t, 4 Taunt 198, and of Tope 
V. Hockm. 7 Bam. & Ores. 101. 'Tis true diat m Taunt 
and that from Bam. & Ores, were not instances of payment under 
protest; but the case from 4 T. R. has diis common feature with 
mat before us, diat it was an action against an excise oflScer'for du« 
ties said to have been iDegaUy collected, in which the plaintiff de- 
nied die legality of the d^ciand, diou^ he subsequendy paid it 
But an dire^ of diese cases ccmcur in condemning the harshness of 
a rule which would subject aii agent, who is a mere channel of con*^ 
vqrance or deUvenr of the amount which mig^t pass duroug^ his 
h^ds. Neidier or these cases was affected by a positive stabitoir 
mandate requiring the aflent to make payment over to his jdncipeL 
Another principle held to be fundamental, to diis ai^n is tnis: 
dial there must exist a privhy between the plaintiff and defendant; 
■ooiedimg (m iriiich an obligation, an eng^igement, a promise from 


Gary v. Curtis. 

the latter to the former can be implied ; for if such implication be 
excluded from the relation between the parties by positive law, or by 
inevitable legal intendment, every foundation for the promi^ and of 
the action upon it is destroyed ; for none can be presumed or per- 
mitted to promise what either law or reason does not warrant or 
may actually forbid. Thus, where bankers received bills from their 
foreign correspondents, with directions to pay the amount to the 
plaintiff, but on being applied to by him refused to do so, although 
they afterwards received the amount of these bills ; it was held, that 
an action for money had and received would not lie to recover it 
from them, there being no privity between them and the plaintiff. 
Lord Ellenborough observed, the defendants might hold for the bene- 
fit of the remitter, until by some engagement entered into by them- 
selves with the persons who were the objects of the remittance, they 
had precluded themselves from so doing ; but here, so far from there 
being such an engagement, they repudiated it altogether. Williams 
V. Everett, 14 East, 582, Again, where J., an attorney, who was 
accustomed to receive dues for the plaintiff, went from home, leaving 
B., his clerk, at the oflSce ; B., in the absence of his master, received 
money on account of the above dues for the client, which he was 
authorized to do, and gave a receipt " B., for Mr. J.^* J. was in 
bad circumstances when he left home, and never returned. B. af- 
terwards refiised to pay the money to the client, and on an action for 
money had and received against him, it was held not to lie ; for the 
defendant received the money as the agent of his master, and was 
accountable to him for it ; the master, on the other hand, being an- 
swerable to the client for the money received by the clerk, there was 
no privity of contract between the present plaintiff and the defend- 
ant: Stevens v, Badcock, 3 Bam. & Adblpn. 354. So in the case 
of Sims et al. t;. Brittain et al., 4 Bam. & Adolph. 375. A., B., and^ 
others, were part-owners of a ship yi the service of the i^st. India 
Company ; B. was managing owner, and employed C. as his-agent, 
and C.kept a separate account on his books withB. as such manag- 
ing owner. In order to obtain payment of a sum of money from 
the East India Company on account of the $hip, it was necessary 
that the receipt should be signed by one or more of the owners be* 
sides the managing owner ; and upon a receipt being signed by B. 
and by anofter of the owners, C. received JE2000 on account of the 
ship, and placed it to the credit of B. in his~ books as managing 
)wner ; the part owners having brought money had and received to 
scorer the balance of that account, lield, that C. had received the 
Qon^ as the agent of B., and was accountable to him for it ; and 
hat there was no privity between the other part-owners and C, and 
onsequently, that the action was not maintainable. To the same 
ffect are ti^e cases of Rogers v, Kelly, 2 Camp. 123, and Edden v. 
lead, 3 Camp. 339, and Wedlake r. Husley, 1 Crompton & Jarvis, 
3. If indeed the defendant has consented (where he can properly 


Carjr iw Cartit., 

I • - ... . ■ 

eoDflent) to hold Hat mtmej for the use of the plaintiflry he m^ be 
Ui^e. And it is conced^, that his consent need not be express, 
but it must, if not so, vest u]x>n fiur and natural implication or legal 
intendment Where sudi unplication or intendment is excluded, 
foibidden by the position of the parties, by positive law, or by the 
character of the transaction, consent or any obligation upon which 
.to imply it is entirely removed. 

We have thus stated, and will here recapitulate, the principles on 
which the action for money had and received may be maint ai ne d. 
Th0)r are these: 1st. Whenever the ddendant has received mone^ 
which is the property of die plaintiff, and which the defendant is 
oblised^ by the ties of natunl justit^e and equity, to refund. 2dly. 
In the case of an agent, where such a^t is not notoriously the 
mere canrier or instrument for transfemng the fund, but has the 
power of retaining, and before he has paid over has received notice 
of ttie plaintiff's claim, and a warning not to part with the fund. 
3dly. Where diere exists a privity between the plaintiff and the de- 
fendant. Let the case before us be broueht to the test of these rules. 
The 2d section of the act of Congress declares, first, that from its 
passaffe, all money fmd to any collector of the customs for unascer- 
tainea duties, or duties paid under protest agunst the rate or amount 
of duties charged, shall be placed to the credit of the treasurer, to 
he kept and applied as all other money paid for duties required b^ 
law. Secondly, that ihey shall not be held by the collector to await 
any ascertainment of duties, or the result of ^y litigation concern- 
ing; the rate or amount of du^ legally chargeable or collectable. And 
thirdly, diat in all cases of dispute &9 to the rate of duties, application 
diall be made to the secretary of the Treasury, who shidl direct the 
repayment of any money improperly charged. This section, as a 
put of the public law, must be taken as notice to all revenue oflBcers, 
and to all importiers and others dealing with those officers in the line 
of dieir duty. There is nothing obscure or equivocal in this law ; it 
declares to eveiv one subject to the payment of duties, the disposi- 
tion wnich shall be made of all payments in future to collectors ; tells 
thetn those oflicers shall have no discretion over money received by 
themi and especially that they shall never retain it to await the re- 
sult of any contest concerning the right to it j and that q^oad ibis 
money the statute has converted those oflicers into mere instruments 
for its transfer to the Treasury. With full knowledge thus imparted 
by the law, can it be correctly understood that the party making 

Eayment can, ex equo et bonoj recover a^inst the officer for acting in 
teral conformity with the law, converting thereby the performance 
of his duty into an offence ; or that upon principles of equity and 
good conscience, an obligation and a promise to refund shall be im- 
plied a^iiiist the express mandate of the law? Such a presumption 
^ipears to us to be subversive of every rule of right , The more 
correct inference seems to be, that payment under sudi circumstances 
Vol. m.— 32 


II ■ . ■ » 1 III 

Carj V. Cuftii. 

musl, ex equo e^ bonOj najy ex neceaiiaie^ wod in despite of objection 
made at the time, be taken as being made in conform!^ with the man* 
date of the law and the duty of the officar. which exdude not cmly any 
implied promise of repayment by tbe'officer, but would render Toid 
an ezprcfls'promise by him, founded upon a violation both of die law 
and of his duty. The claimant had his option to refuse payment; 
the detention Of the goods for the adjustment of duties, being an inci- 
dent of probable occurrence^ to avoid tins it could not be nermitted 
to effect the abrogation of a public law, or a sjrstem of public policy 
essentially connected with the general action of the government 
The claimant, moreover, was not without other modes of redress, 
had he chosen to adopt them. He might have asserted' his ri^t to 
&e possession of the goods, or his exemption from die duties de- 
manded,^ either by replevin, or in an action of detinue^ or pieihapi 
bjr an action of trover, upon his tendering the amount of duties ad* 
mitted by him to be legally due. The legitimate inquiry before this 
court is not whether all ri^t of action has been taken away from the 
party, and die court responds to no such inquiry. The miestion' 
presented for decision, and the only question decided, is Aether, 
under the notice given by the statute of 1839, payments made in 
despite of that notice, though with a protest against their supposed 
illegality, can constitute a ^und for that implied d)ligation to re- 
fund, and for that promise mferred by the law from such obligation, 
which are inseparable from, and indeed are the only foundation o^ a 
rij^t of recovery ia this particular form of action. And here is pre- 
sented the answer to the assertion, that by the act of 1839, or by die 
c<mstruction given to it by this court, the party is debarred all ao- 
cess to the courts of justice, and left entirely at the mercy of an ex- 
ecutive (^er. Neither have Congress nor this court iiimished die 
diditest ground for the above assertion. 

But the objection to a recovery in this action may be ferther ex* 
tended, upon grounds which to die couit app^ff to be insuperable. 
We all know mat this action for money had and received is founded 
upon what the law terms an implied promise to paj what in good 
conscience the defendant is bound to p^ to the plamtiff. It wmg 
in such case the duty of the defendant to pay, the law hnputea to 
him a promise to [my. This promise is always charged in die de* 
claration, and must be so charged in order to maintain die actiion. 
It was. ujion Ats principle that the actioii for money had and received 
was sustained in the case of iSliott v. Swartwout There numev 
had been taken bv die coUector for duties which.ii7ere not iinposecL 
Hus money la^^fruly belonged to the plaintiff; it was die duty, ther^ 
Core, of the collector to pay it back to him. The coHector was not 
bound to pay it to &e treasurer, for the law did not command diis 
disposition of it It did not bdong to the Umted States, who had 
no ridit, dierefore, to demand it of him, and copld not nave reco- 
vered it against ]um,4n a stiit^ if he had paidit badt to die tme 


Carjr «. Cnrtii* 

owDer. It beinff tlie duty of the Collector to return what he had un- 
lawiulljr taken, Sie law implied on his psoi a promise to do so ; and 
on this implied promise, annnp( or infexred from a duty imposed up- 
on lim^ tte action was mamtamed. . The protest and notice were 
to him of no fiottier importance than to warn him' to hold over, and 
to take awa^ an excuse he mig^t otherwise have had from payment 
to his principal* It was his duty, as the law then stood, not to pay 
over, but to pay back to tiie party torn whom he had collected witlir 
out Jejgal authority, when warned that this party diould look to him 
for reimbursement, and not to his principal. But the law never im- 
plieti a promise to pav^ unless duty creates the obligation to pay; 
and more especially it never imphes a promise to do an act contruy 
to duty or contrary to law. Now, unaer tibe statute of 1839, if the 
collector receives money, thou^ for duties'not due, it is neverthe- 
less made his duty to fBiy it into the Treasury, to be rq>aid there^ if 
the party claiming is tound io be entitled to it. And the question 
here is,^ will the la\jr imply a.pronuse .from tiie collector to do that 
which is contraiy to his offidal duty, contraiy to the command of a 
positive statute? If it will not, then tiie action of assumpsit for mo- 
ney hatt and received will not lie in this case. 

Moreover, the law will nevierimply a promise where it would be 
unjust to the party to whom it would be imputed, and contraiy to 
equity so to imply it Suppose the collector should not, as directed 
by law, pav.tiie money into tiie Treasoir^ the United States mij^t 
xmdoubtedly maintain an action against mm for money had and re-' 
ceived to their use. Because it beinff his duty to do so, the law 
would imply a promise to pay it. C^ the law at the same time 
imply a promise to pay it dsewhere or to another^ and tiius burden 
the coDector with the double obUsation of paymg to the ^vem- 
ment, and also to one daiminein aaversary interest? If suitsweie. 
mstituted against him bv bom parties, and were standing for trial 
at the same time, woula both beentitled to a recoverv, and woiild 
the law imph promises to botii, promises Io pay double the. amount 
received ? We think not; and as the law in positive terms directs 
payment to be made into the Treasury,, tiiere can be no judicial im- 
pHcation contraiy to law, nor ft^t the collector will pay to another 
what the law directs him to pay to the United States; and no judi- 
cial implication which Vould require him to be guilty of an act of 
oJBScial misconduct, or a breiM^ of his duty to the public. If the 
law implies a promise to pay back to the pjeuty, then it must be the 
duty of the collector to do so as soon as it is demanded. If the 
money may be recovered of him hj suit, then he would be justified 
in paying without suit, yet if he does so pay, he not only violates a 
duty imposed by law, but may be compelled to pay^ over a^;ain to 
the government, as for so much money had and received to its use. 
We think tiie law cm never imply a promise which must be unjust 
and oppressive in its results to uie party, or contraiy to his duty as 


Gary v. Curtis. 

a public officer ; and there being no impli'ed promise, therefore in 
dns case the action for money had and received cannot be main* 
tained. It is perfectly clear to the court that, under the act of 1839, 
the United. States have, by express law, a rig^t to demand the mo- 
ney from lie^ollector, and to in an action for money had 
and recerred, even if that officer had paid it over to the person from 
-whom he had received it ; and we say with con^dence that in the 
multitude of cases that h^ve been decided in relation to that action^ 
there is not one in which it has been held that money could be re- 
covered from a defendant when his voluntary payment of it would 
leave him still liable to an action for the same money by another. 

We deem it imnecessary to examine farther the grounds stated in 
the second and third heads of inquiry, as forming the foundation of 
the action for money had and received ; or to bring to a particular 
comparison with those grounds the law and the facts of this case, as 

E resented ujpon the record. The iUustrations given under the first 
ead embrace all that is important under the remaining divisions, 
with respect to the nature of the demand and the position of the par- 
ties. Those illustrations establish, in the view of the court, that, so 
far is the defendant from beine obliged, by the tieaof natural equity 
and justice, to refund to the plaintin the money received for duties, 
that, on the contrary, under that notice of the law which all must be 
presumed to pdssess, the payment must be understood as having 
been made with knowledge of die parties that the right of retaining 
or of refunding the money did not exist in the defendant; that the 
money by law must pass from him immediately upon its receipt; 
that payment to him was in legal efiect payment into the Treasury ; 
&at notice to him was, under such circumstances, of no efiect to 
bind him to refund ; that as the collector, since the statute, bad 
power neither to retain nor refund, there could, as betweenhim and 
the plaintiff, arise no privity nor implication, on which to found the 
promise raised Jby the law, only where an obligation to undertake or 
promise exists ; and that, therefore, the action for money had and 
received could not, in this case, be maintained, but was barred by 
tbe act of Congress of 1839. 

Mr. Justice STORY. 

I regret exceedingly being compelled by a sense of duty to ex- 
press openly niy dissent from the opinion of the majority of the 
court in this case. On ordinary occasions my habit is to submit iii 
silence to the judgment of the court where I happen to entertain an 
opinion diflferent m>m that of my brethren. But .the present case 
involves, in mv judgment, doctnnes and consequences which, with 
the utmost dererence and respect for those who think otherwise, I 
cannot but deem most deeply afiecting the rights of all our citizens, 
and calculated to supersede the great guards of these rights intended 
to be secured by tibe Constitution through the instrumientality of tiie 

JANUARY TERM. 1845.1 9n 

Gary «• Cartis. 

judicial power^ etate or national. Tlie question, stripped of all for- 
malities, IS neidier more nor less tban &i8 : Whether Uongress have 
a ri^t to take from the citizens all right of action in any court to 
recover back money claimed illegally, and extorted by compulsion^ 
by its officers under colour Of law, but witiiout any legal authority^ 
and thus to deny them all remedy for an admitted wrong, and to 
dotfae the secretary of the Treasury with the sole and ezclusiTe 
authority to withhold or restore that mcmey according to his own 
notions of justice or ri^t ? If Congress may do so in the present 
ease, in the exercise of its power to leyy and collect taxes and du- 
ties, and thus take away from all courtSj^state and national, all ri^t 
to interpi^ the laws for levying and collecting taxes and duties, and 
to conncle such tnteipretation to one of its own executive fimction- 
aries, wbocH^ judgment is to be at once summary and final, then I 
must say, tnat it seems to ine to be not what I had hitherto sum>osed 
it to be : a government where the three great departments, legisla- 
tive, executive, and judicial, had mdependent duties to p^form 
each in its owp sphere ; but the judicial power, designed by the Ccmi- 
stitution to be the final and appellate jurisdiction to interpet our 
laws, is superseded in its most vital and important fimctions. I 
know oi no power, indeed, of which a free people ought to be more 
jealous, tiian of that of levymg taxes and duties ; ana yet if it is to 
r^ widi a mere executive iunctionaiy of the govchmient absolutely 
and flnaUy to jdecide what taxes and duties are leviaUe under a par- 
ticfular act,. without kny power of appeal to any judicial tribunal, it 
seemd to me that we have no secun^ whatsoever for the ri^ts <^ 
the citizens. And if Congress possess a constitution^ authoritf to 
vest such summary and final power of interpretation in an executive 
functionary, I know no other subject witiiiii the reach of legidation 
which may not be exclusively confided in the same w^y to all ex- 
ecutive functionary ; nay, to tiie executive himself. Can^ it be true 
that the American people ever contemplated such a state of things 
a» ju^ifiabl<& or practicable under our Constitution ? I cannot bring 
my mind to believe it ; and, therefore, I r^)eat it. widi the most 
sincere respect for i^ brethren, who entertain a dimo'ent opinion, I 
deny the constrtutiond authority of Congress to delegate such fync- 
tions to any executive officer, or to ^e away all.rig^t of action for 
an admitted-wrong and illegal exercise of power in the levy of mo- 
ney firom the injured citizens. I am further of opinion, as I shall 
endeavour presently to show, that Congress never Imd contemplated 
paasinffany such act, and that die act of the 3d of March, 1839, 
chap. S2.\ 2y neither requires nor in my humble judgment justi- 
fies such an interpretation. 

What is the r^ questicm presented, upon the division of opinion 
in the Circuit Court, for the consideration of this court? It is not 
whedier an action to recover back die money illegally claimed nnd 
paid to tiie collector for duties, in order to obtain possession of the 



Gary v. Curtis. 

goods b;^ tibe owner under a protest that they were not legally due, 
would he in the Circut Court, for no such question arises on ihit 
record, and it is incontroyertible and uncontroyerted, that if any 
such action wotdd lie, it would lie in the national courts as weU as 
in the state courts. It is not whether Congress may limit, restrain, 
modii^, or eveii take away the right to sue in the national courts, in 
cases Uce die present, or, indeed, in any other class of cases not 
constitutionalhr provided for, but it is sunjply whe^er the act of 
Congress of the 3d of March, 1839, chap. o2, ^ 2, is a bar to such 
an action in any court, state or nationaL If it is a good bar in one 
court, it is good in all courts under the provisions of that act. If 
Congress have a right to say, and have said, under the provisions 
oi that act, that no officers of the customs shall be liable to any 
action for money extorted by him under colour of his office without 
authority and against law, then these provisions are equally applicable 
to all courts, and furnish the rule of decision for all. And Congress 
have an equal right to apply a like provision to all otter acts of dl 
other officers done under colour of office, and the trial by jury may, 
in suits at common law, be completely taken away in all such cases, 
and the right of final/decision be exclusiyely vested in the executive, 
or in any other public functionary, at the pleasure of Congress. 

Now, how stands the common law on this veiy subject ? It is, 
that an action for money had and received lies in ail cases to recover 
back money which a person pays to another in order to obtain pos- 
session of his ffoods fropa tte latter, who withholds them from him 
upon an illegal demand, or claim, colore officii^ and thus wrongfully 
receives and withholds the money. Such a payment is in no jui 
• sense treated in law as a voluntary payment, but it is treated as a 
payment made by compulsion, and extorted by the necessities of 
the party who pUys it. Such is the doctrine of the common law 
as held in England, with a firm and steady hand, against all the 
daiins of prerogative, and it b maintained in our day as die unde- 
niaole right of eyeiy Englishman, aeainst the unjust and illegal ex* 
actions of officers of the crown. Mr. Justice Bayley laid down the 
general principle with great exactness in Shaw v. Woodcock, 7 Bam. 
and Cres. 73, 84, and said : ^< If a party has in his possession goods 
or other property belonging to another, and refuses to deliver 9uch 
property to that other unless the latter pays him a sum of money 
which ne has no right to receive, and the latter, in order to obtain 
possession of his property, pays that sum, the money so paid is a . 
pajrment made by compulsion, and may be recovered bacK." In 
Irvmg V. Wilson, 4 Term R. 485, the doctrine vns applied to the veiy 
case of the acts of an officer of the excise or customs. Upon that 
occasion Lord Kenyon emphatically said: ^'The revenue laws 
ought not to be inade the means of oppressing Ae subject tf 
ffoods liable to a foirfeihire be forfeited, the officer is to seise fliem 
fi>r the king, but he is not permitled to abuse the duties of his sift- 

JANUARY TERM, 1846. S65 

Ctrj «. Curtis. 

tion, and to make it a mode of extortion." Theie are many oQier 
aathorities leading to the same result, but it is unnecessary to cite 
tiiem, since the very point that an action for money had and received 
lies against a collector of the customs to recover back money de- 
manded by and paid to him, colore qfficHy opon goods in^ported, for 
duties not legally due thereon^ has been, upon the most solemn de- 
liberation, hdd by tins court m the cases of Elliott v. Swartwout, 
10 Peters, 137, and Bend v. Hoyt, 13 Petets, 263, 267. 

It is an entire mistake of the true meaning of the rule of the com- 
mon law, which is sometimes suggested in argument, that the action 
of assumpsit for money had and received is founded upon a voluntary, 
express, or implied promise, of the defendant, or that it requires 
pnvity between the parties ex contractu to support it The rule 
of the common law has a much broader and deeper foundation. 
Wherever the law pronounces that a party is -under a legal liability 
or duty to pay over money belonging to another, which he. has no 
lawful right to exact or retain from turn, there it forces the promise 
upon him m ifwitum to pay over the money to the party entitled to 
it. It is a result of the potency of the law, and is in no shape de- 
pendent upon the wiU or consent or voluntary promise of the wrongs 
ful possessor. The promise is only the form in which the law an- 
nounces its own judgment upon the matter of right and duty and 
remedy ; and under such circumstances any argument founded upon 
the form of the action, that it must arise under or in virtue of some 
contract, is disregarded, upon the maxim qui futrd in UierOy harei 
in co/tke. Hence, it is a doctrine of the common law, (as far as 
my researches extend,} absolutely universal, that if a man, by fraud, 
or wrong, or illeeality, obtains, or exacts, or retains money^ mstly 
belonging to anomer, with notice that the latter contests the tigbX of 
the former to receive, or exact, or retain it, an action for money had 
and received lies to recover it back ; and it is no answer for the 
wrongdoer to say that he has paid it over to his superior; for al- 
thou^ as between the wron^oer and his superior, the maxim may 
well apply, respondeat'tupenory yet the injured party is not bound 
to seek redress in that direction ;' and d fortiori j »;., he is not so 
bound, where, as in the case of the government, the superior is not 
suable. That would be a mere mockery of justice. And this is 
tibe veiy doctrine affirmed in its full extent by* this court m die cases 
of Elliott V. Swartwout, 10 Peters, 137, and Bend v. Hoyt, 13 Pe- 
ters, 263, 267. 

An action for monepr had and received being then the known and 
Impropriate remedy of'^the common law, applied to cases of this sort, 
to protect the subject from illegal taxation, and duties levied by 
public c^fficerSy vdiat fpround is there to suppose that Congress could 
intend to take avtray so important and valuable a remedy, and leave 
our citizens utteriy vridiout any adequate protection ? It is said, diat 
drcintoudy anotiier remedy may be foumL The answer is, diat if 


Gary «. Cartis. 

Congress have taken away the direct remedy^ the circuitous remedy 
must be equalljr barred. But in point of fact no other judicial 
remedy does exist or can be applied. If the collector is not re- 
sponsible to pay back the money, nobody is. The goyemment itself 
is 6ot suable at all ; and certainly there is no pretence to say that 
the secretary of the Treasury is suable therefor. Where then is the 
remedywhich is supposed to exist ? It is an appeal to the secretary 
of the Treasury for « return of the money, if in his opinion it ought 
to be returned, and not otherwise. No court, no jury, nay, not 
eyen the ordinary rules of evidence, are to pass between ihat officer 
and the injured claiixiant, to try his rights or to secure him adequate 
redress. Assuming that the secretary of the Treasury will always be 
disposed to do wh^ he deems to be ri^t in the exercise of his dis- 
cretion, and that he possesses all the Qualifications reauisite tq per- 
form tins duty, among the other complicated duties of his office — a 
presumption vrUch I am in no manner disposed to question — s^ it 
removes not a single objection. It is, after all, a substitution of ex- 
ecutive authority and discretion for judicial remedies. Nor should 
It be disguised, that upon so complicated a subject as the nature and 
chanicter of articles made subject to duties, grave controversies must 
always exist (as they have always hitherto existed) as to the categoiy 
widun whidi particular febrics and articles are to be classed, ^e 
line of discrimination between, fabrics and articles approaching near 
to each other in quality, or component materials, or commercial de- 
nominations, is often very nice and difficult, and sometimes exce^- 
inglj^ obscure. It is the very case, tiierefore, which; is fit for judi- 
tiSl inquiry and decision, and falls within the reach of that branch 
of the judicial power giyen by the Constitution, where it is declared 
(< that flie judicial power shall extend to all cases in l^w and equity 
arising under this Constitution^ the laws of the United States, and 
treaties, &c.'' If then the judicial power is to extend to all cases 
acisbg under the la^s of the United States, upon what ground are 
we to say that cases of this sort, which are emmently ^^ cases arising 
under the laws," and of a judicii^ nature, are to be excluded firom 
judicial cognisance, and lodged with an executive functionary ? 

Besides, we all know that, in all revenue cases, it is the constant 
practice of tte secretary of the Treasuiy to give written instructions 
to the yarious cdlectors of the customs as to what duties are to he 
collected under particular revenue laws, and what, in his judgment, 
is the proper interpretation of those laws. I will venture to assert 
that, in nmeteen cases out of twenty of doubtful interpretation of 
any such laws, the collector neyer acts without the express instruc- 
tioQis of the secretaiy of the Treasury. So that in most, if not in 
all cases where a controversy arises, the secretary of the Treasuiy 
has already pronounced bis own iudgment. Of what use then, 
practically speaking, is the appeal to him, since he has already 
given his decision ? Further, it is well known, and the annals oi 


Ctrj V. Curtis. 

■ * ' 

liiis court v well as fliose of the other courts of the United States 
establidi in the fullest manner, that the interpretations so given by 
die secretaiy of the Treasury have, in many instances, difiercd 
widely from those of the courts. The Constitution looks to the 
courts as the final interpreters of the laws. Yet the opinion main- 
tained by my brethren does, in effect, vest such interpretation ex- 
clusively in that officer. 

These considerations have led me to the conclusion ttat it nev» 
could be the intention of Congress to pass any statute, by which 
the courts of die United States, as well as the state courts, should 
be excluded from all judicial power in the interpretation, of the 
revenue laws, and that it should be exclusively confided to an exe- 
cutive functionary &ially to interpret and execute them— a'power 
which must press severely upon the citizens, however discreetly 
exercised, and which deeply involves their- constitutional rij^ts, 
privileges, and liberties. The same considerations force me^ m all 
cases of doubtfiil or ambiguous language admitting of different 
interpretations^ -to cling to that which should least trench upon 
those rights, privileges, and liberties, and a. fortiori to adopt that 
whidi would be in general harmony with our whole system of 

And this leads me to say that, after the most careful examination 
of the 2d section of the act of lod9, chap. 82, 1 have not' been able 
to find any grotmd to presume that Congress ever contemplated ttiv 
thing contained in that section to be a bar to the present action. I 
look upon that section as framed for a very different object, an ob- 
ject founded injsound policy and to secure the public mt^rest.' It 
was to prevent officers of the customs firpm retaining (as the habit 
of some had been) large sums of money in dieir hands received for 
duties, upon the pretence that they had been pidd under protest, 
and thus to secure in the hands of the officers a sufficient indemnity 
for bU present as well as future liabilities to the persons who had 
paid diem. By ttis means large sums of money were withheld 
from die government, and there was imminent danger that severe 
losses mi^t thus be sust^jbed firom the defieJcation of those officers, 
and the public revenue mi^t be thus appropriated to the personal 
business or speculating concerns of the officers. If actions should 
be brou^t and judgment obtained against such officers for the 
repayment of any of ^uch duties, it was plain that the government 
would be boQn<i to indemnify them, especially if thev had acted 
under instnictiotis from the Treasury Department. On the other 
hand, the government, being in possession of thc^ money, would 
hold It in the mean time as a deposit to await events, and to refund 
the same if in the due administration of the law it was adjudged 
diat it ought to be refunded. Such, in mv judgment, "was the ob- 
ject and 3ie sole object of the section, and it seems to me in this 
view to be founded m a wise protective policy. 

Vot. m.— 33 ^ y 2 


Gary «. Cartis. 

With fhis exposition in our view, let us examine the language of 
&e section. It is as follows : ^^ That from and after the passage of 
iUa act, all money paid to any <;ollector of the customs or to any 
person acting as such, for unascertained duties or for duties paid 
under protest against ^e rate or amount of duties charged, shall be 
placed to the credit of die treasurer of the United States, keot and 
disposed of as all odier money paid for duties is required by law or 
by regulation of the Treasury Department to be placed to the credit 
of said treasurer, kept dnd di8{>osed of; and shall not be held by 
the said coUector or person actmg as such to await any ascertain- 
ment of duty, or the result of any litigation ia relation to the rate or 
«mountt>f(uity legally cl^urgeabie and collectable in any case where 
money is so paid.^' Now, pausing hiere, it seems to me that the 
clause is plainly and merely directly to die collector or person act- 
ing as such, pointing out his dubr and requiring him to pass the 
mtoney so paid to the credit of the goyemment as soon as it is 
leceired. Nodiing is h%re said as to the ri^ts of third persons, 
who pay the money for duties ; no declaration is made that the col- 
lector shall not be liable to any action for such duties, if not legally 
demandable ot payable, or that the collector or such other person 
duill hot be liable to refund the same. And yet, if such haa been 
die intention of Congress, it seems to me incredible tiiat a provi^on 
to this effect should not haye been found in t)ie act. But further ; 
not only is there a total al)sence of any such provision, but there is 
positive evidence that Confiresa contemplated that there would be 
suits brqu^t affamst the electors andpther persons for the lepay- 
ment of such cmties, and, accordingly, as we see, the money is not 
to be retained by them ^^ to await any ascertainment of duties or the 
result of any litigation." The iah|;uage is not limited to the result 
of past or pending litigation, but it ecjually implies to future litiga- 
tion ; in short, any litigation^ without any nmitation as to time, and 
indeed to be coextensive widi the permanent prospective operation 
of the act. If, then, diere is in ttus clause no positive or implied 
bar to anj action provided for, and if the clause is perfecdy satisfied 

S deeming it to be what it professes on jts fecetq be, a relation 
dressed to the collectors and other persons coUectinfl; duties, and 
directoiy to diem, let us see if the subsequent clause^ which contains 
ibe residue of the section, either enlarges, or qualifies, or repels the 
inferences drawn from the preceding clause. This claqse is, '^But 
whenever it shall be shown to the satisfaction of the secretaiy of the 
Treasury, diat, in any case of unascertained duty or duties paid under 
protest, more money has been paid to the collector or other person 
actin|r as such, than the law requires should have been paid, it shall 
be his duty to draw his warrant upon the treasurer in ravour (^ the 
person or persons entitied to the over-payment^ directing the said 
treasurer to refund the same out of any money m the Treasmy not 
otherwise appropriated.'' 

^ JANUARY TEHM. 1845. 980 

Carjr *. Cnrtii. 

Hub 18 the wbole of tbe clause, and, unless I. am sreatlj deceived 
in its purport and effect, not .one word is &> be found therein which 
bars me party who has paid the mone^ fronv his rigbt of action 
against the collector or omer persons actmg as such to recover bacic 
the money illegally claimed* or which compels such party to make 
his application or appeal sblely to the secretary of the Treasury for 
redress, or gives to the latter exclusive power, jurisdiction, and final 
arlHtrament in tfie premises. Tlie true object of tlus clause seems, 
to be precisely what its language imports, to give the secretary of the 
Treasury a power which he did not previously possess^ to draw firom 
&e TreasCLry mon^ which had been overpaid for duties when he 
was satisfied of such over-payment, upon the appKcation of the party 
interested. It was not to be compulsive on the party, that he shoula 
so apply, but he had aii option to apply to the secretary, to save die 
delay and expense of a protracted litigation, if the secretary should 
grant him the desired rdief. It would also diminish the necessity 
of applications to Congress for the repayment of money which had 
been ulegally paid for duties, by enabling tfae-secretary to d^w his 
warrant upon the Treasury for tne amount ; which rehef, when' th^ 
money ha!u been paid mto the Treasury, could not before be ob- 
tained' except by means of an act of Congress. It was, therefore, 
an auxiliary provision to the general rights of action secured to the 
party by tlie common law, and not in extinguishment or suspension 
of it. Whether the clause clothed the secretary also with authority 
to draw a j/rwrmxt in favour of the party, if he recovered back the 
money in a suit at law against the collector, is a matter which might, 
upon the strict words of the clause, admit of some doubt, since the 
case provided for is only where the over-payment shall be shown to 
the satisfaction of the secretary, and not where it is a result of a 
judgment at law. But a liberal construction might embrace such 
a case also, as within the intent, if not strictlv within the words* 
But be this as it may, it is manifest to my mba, with all deference 
to the judgment of otiiers, that- the aflBrmative power thus given by 
this clause to flie secretaiy, cannot be construed to exclude the 
rig^t of the party to his remedy at the common law without a vio- 
lation of the known rules of interpretation, by addiiig important 
and material language which the legislature has not used, and inpor- 
poratins; provisions which neither the words nx)r th^ professed ob- 
jects of the section re'quire. 

Nor am I able to perceive any grounds upon which a different 
interpretation can be maintained, unless it be, that it would be A 
hardship upon the collector to require him to pay money over to 
the government which lie might be compelled again to pay to flie 
party firom whom he had illegally demanded it. One answer to 
this suggestion is, that he cannot complain, because it is his own 
choice to hold an office to which such a duty or responsibility is 
attached, and if he elects to hold it, he ought to take it cum onere. 


Gary «• Cmrt'i's. 

Another and conclusiye answer is, that he has a perfect rig^ of 
indemnity from the government'; nor can it be doubted that the 
ffovemment will always indemnify all its officers for acts done by 
its orders and demands made. under its authority. On the other 
hand, an extreme hardship would be thrown upon the injured party, 
whose money is taken from him against his wul by colour of office, 
and against his ri^t, if his con^mon law reme^ is swept away ; 
for then he can have no means of redress, and no indemnity, since 
he has resisted the- demands of the goTemment and asserts an ad- 
versary interest. 

Nor is it any ground of excuse, (as has been already sugj^^ested,) 
in case of monej paid by compulsion, that the officer has paid over 
the money to his principal j and in this req>ect it differs from die 
case of a voluntary payment. ,This distinction was taken and acted 
upon in the case of Snowden v. Davis, 1 Taunt. R. 358, where 
money had been paid to a bailiff under a threat of a distress by 
an excess of authority, and the money had been paid over by him 
to the sheriff, and by the latter into the exchequer. And the same 
doctrine was fully recognised and confirmed by this court upon the 
most solemn consideration in Elliott v. Swartwout, 10 Peters, 137, 
after a full review of all the leading authorities. 

Upon ihe whole my opinion is, Uiat the ()uestion propounded by 
the Circuit Court upon the division of opinion of the judges in tluit 
court, oufi;ht to be answered m the negative, that the 2d section of 
the act of 3d of March, 1839, chap. o2, was no bar to the action. 

Mr. Justice McLEAN. 

This suit was brought to recover from the defendant, collector of 
the customs, an excess of duties exacted by him of the plaintifis 
a^[ainst law. And on the trial in the Circuit Court t^e judges were 
divided on the question, ^^ whetlier the act of the 3d of Manm, 1839, 
was a bar to the action." This point has been certified to this 

The 2d section of the above act provides, '^ that fix>m and after, 
the passage of this act, all money paid to any collector of. the cus- 
toms, or to any person acting as such, for unascertained duties, or 
for duties paid under protest against the rate or amount of duties 
charged, wall be placed to the credit of the treasurer of the United 
States, kept and disposed of as all other money paid for duties is re- 
quired by law or by regulation of the Treasury Department to be 
placed to the credit of the said treasurer^ kept and disposed of; and 
shall not be held by the said collector, or person acting as such, to 
await any ascertainment of duties pr the result of any litigation in 
relation to the rate or amount of duty legally chai^able and collect* 
able in any case where money is so paid ; but whenever it ^all be 
shown to the satisfaction of the secretary of the Treasury, that, in 
any case of unascertained duties or duties paid under protest, more 

JANUARY TERM, 1945, «« 

Carj V. Curtis. 

money has been paid to the collector or person acting as sacb than 
die law requires should have been paid, it shall be his duty to draw 
his warrant upon tte treasurer in fayour of the person or persons en-, 
titled to d^e over-payment, directmg the said' treasurer to refund th6 
same out of any money in the Treasury not otherwise appropriated.'' 

In die case of Elliott v. Swartwout, 10 Peters, 137, and in -Bend 
V. Hoyt, 13 Peters, 263, this court held, that illegal duties exacted 
by the collector were recoyefable from him, where paid under pro- 
test, by the importer, in an action of assumpsit. This doctrine is not 
auestioned in this country or in England. Has the 2d section of 
le act tbore cited chanG;ed the law m this respect ? A majority of 
die juds;es have decided in the affirmative, and that that act consti- 
tutes a bar to an action in such a case. I dissent from the opinion 
of the court. 

The above section, in my judgment, so far torn ta]dng away the 
kgal remedy, expressly recognises it. The collector is required, 
<< from and after the passage of the act,'' to pay over to the treasurer 
the moneys in his bands, and not ^^to await any ascertainment of 
duties, or die result of any litigation in relation to me rate or amount 
of duty legally chargeable," &c. Now, if Congress intended by 
diis section to withdraw this subject from the courts, and vest the 
exclusive right to decide the matter in the secretary of die Treasury, 
could they have used this lazi^age ? The law was not to operate 
upon the past, but upon the mture acts of the collector. And I ask 
in sober earnestness, whether the collector coidd be reauired to pay 
over money, " and not await the result of a litigation,'^ as " to the 
amount of duties legally chargeable," if the intention was to prohibit 
such litigation. I use me words of the section ;, and the woros of the 
section done, as I think, are conclusive as to the mtention of Coneress. 
The. collector must pay over the money, and not retain it untu the 
termination of a suit. Does this take away the right to bring a suit ? 
Such an inference, it seems to me, would be as exceptionable in logic 
as in law. 

From the proceedings of this court we know that collectors of 
the customs after their removal from office or the expiration of their 
term, and sometimes while in office, under the pretext of indemnify- 
ing themselves against suits for the exaction of illegal duties, were 
in the practice of withholding from the Treasury large sums of 
money. And it was to remedy this evil, that the above law was 
passed. As to the remission of duties ille^Uy charged, it ve^ed in 
the secretary no new powers ; but it authonzeshim, where the excess 
of duty has been paid into the Treasury, to draw it out by a war- 
rant, and pay it over to the person entitied to receive it. By the .21st 
section of the Duty Act of 1799, (1 Story, 592,) the collectors " were 
required, at all times, to pay to the order of the proper officer the 
whole of the moneys which they may respectively receive, &c., and 
shall once iti three months, or oflener if requirea, transmit their ac- 


Gary v. Curtis. 

counts,^ Sue. Now, it is known from public documents and from 
cases before this court, that the secretary of the Treasury has, for a 
long time before the act of 1839, required the collector ot New Yoric 
to pay over moneys received by him, weekly or at Aort intervals. 
And can it be pretended that the act of 1799, under the instructions 
of the secretary of the Treasury, was not as binding upon collectors 
as the act of 1839 ? In a le^ point of view the liability of a col- 
lector was the same for illega. duties received by him, whether paid 
into the Treasuiy under the one law or the other. 

It is said that the law cannot raise a promise to pay by an officer, 
where it re(]uires him to pay the same money into the Treasury. 
The . action is founded on die illegality of the transaction. None 
other than lec^al duties are payable to the government ; and where 
an officer by nis own volition, or acting under the instn^nt^ons of 
his superior, demands a hig^her duty th^ the law authorizes. He is 
guilty of a wrong which his instructions cannot justify. And having 
done this, can it be contended, that by paying over moneys so ob- 
tained he can escape the legal consequence of his unlawftd act? 
Where one person obtains money illegaiHy from another, is he not 
bound in conscience to return it ? And may not an action of a9> 
sumpsit be sustained for the recovery of the money ? In such an 
action the question is, whether the defendant has received money 
which he is bound in cfood conscience to pay to the plaintiff. Now. 
if the defendant, as collector, exacted a higher duty of the plaintifls 
than the law authorized, is he not bound in conscience to tetum the 
excess ? But it is said that he has paid it over to tfie Treasury of 
the United States, in pursuance of the act of 1839, and d^t 'Uis k 
a bar to the action. Why haa not this bar been' set up under the 
act of 1799 ? ]3y that act the collector, when ordered by the secre- 
taiy of the Treasury, was as much bound to pay over the money in 
his^hands into die Treasury as under the act of 1839. And yet for 
forty-four years such a defence has not been thought of. It has 
never been supposed that the payment of the money into ttie Trea- 
sury exonerated the collector. He has violated the law. and he is 
answerable for that violation. This must be the case, unless, in the 
language of tiiis court in the case of Elliott v. Swartwout above 
cited, ^^ the broad proposition can be midntained, that no action will 
lie acainst a collector to recover back an excess of duties paid him, 
but mat recourse must be had to the government for redress Sudi 
a principle,'' the court say, ^^ would be carrying an exemption to a 

Eublic officer beyond any protection sanctioned by any principles of 
iw or sound public policy." • - 

In Townson v. Wilson et al., 1 Camp. 396, Lord Ellenborou^ 
says, ** If any person gets money mto his hands illegally, he caimot 
discharge himself by paying it over to .another." The same doctrine 
ia held in Sadler v. Evans, 4 Burr. 1986. And this court in the 
above case of Elliott v. Swartwout say, ^< It may be assumed as the 

JANUARY TERIiil, 1846. 268 

Gary «. Curtis. 

settled doctrine of the law, that where money is iHegallj demanded 
and received by an agent, he cannot exonerate himaeE' from req)onai- 
bilit^ by paying it over to his principal, if he has had notice not to 
pay it oyer. A notice not to pay over the money to the principal, it 
18 contended, presupposes a ng^t in the agent to retain, it. No such . 
inference could arise under the act of 1799, nor can it be made un« 
de» the present law. The notice should induce the •collector to re^ 
consider his act, and if found to have been against law to correct it. 
But it is said, he may have acted under tlie orders of the secretary 
of the Treasury. Suppose he did, would that justify or excuse an 
illegal act ? I will answer this in the language of this court in the 
case last cited : ^' Any instructions fix)m the Treasury Department 
could not change the law or afiect the ri^ts of the plaintiff. He, 
the collector, was not bound to take and adopt that instruction. He 
was at liberty to judse for himself, and act accordingly." And in 
Tracy tr. Swartwout, 10 Peters, 99, this court say, ^* that the per- 
sonal inconvenience of the collector is not to be considered.'' 
When acting under instructions the government is bound to indem- 
nify him. ui my judgment the act of 1839 interposes no bar to 
this action. 

But there is another aspect in which this case must be considered. 
Feeling, as I do, an unfeigned respect for the opinion of the judges 
who differ from me, yet I cannot, without concern, look at ihe con- 
se^ences of the principle established in this case. The ri^ht of a 
citizen to resort to the judicial tribunals of the country, federal or 
state, for redress for an injury done by a public officer, is taken 
away by the construction of an act of Congress, which, in my judg- 
ment, bears no such construction. But I will take higher ground, 
and say, that Congress have no constitutional power to pass such im 
act as the statute &[ 1839 is construed to be by this decision. 

By the 2d section of the 3d article of the Constitution of the 
United States, the judicial power extends to all cases in law and 
equity arising under the Constitution and laws of the union. And 
by the 7th section of the amendments to the Constitution it is pro- 
yided, that " in suits at common law, where the value in controversy 
diall exceed twenty dollars, the right of trial by jury shall be pre- 

The act of 1839^ in my jud^ent, does not conflict with either of 
the at>ove constitutional provisions. But if it take away the right 
of the citizen to sue in a court of law for the injury complained of, 
as construed by my brethren, then it is in direct conffict with both 
(rf'the aboye provisions. 

In a matter of private right it takes from the judiciary the power 
of construing the law, and yests it in the secretary of the Treasuiy ; 
die executive officer under whose sanction or instruction the wrong 
ocHBiplained of was done. 


Gary v. Curtis. 

And in the second place it takes from the citizen the ri^t ot 
trial by jury, which is expressly given to him by the Constitutioh. 

I agam repeat that Congress bare not done this, nor did &ey 
intena to do it by the act of 1839. But the act is so construed by 
the decision just pronounced. Under this view, I feel myseu 
bound to consider the principle established by the court, and to 
speak of its consequences. 

That the act, as construed, is in direct conflict with the aboye 
provisions of the Constitution, is so palpable that it seems to me no 
lUustration could make it clearer. 

The right to construe the laws in all matters of controversy, is 
of the very essence of judicial power. Executive officers who are 
required to act under the laws, of necessity, must give a construc- 
tion to them. But their construction is not final. Vvhen it operates 
injuriously to the citizen, he may, by any and eveiy possible means 
tmrou^ which it may be brought before the courts, have the con- 
struction of the law submitted to them, and their decision is final. 

But the court say, that the plaintifis in this case cannot seek 
redress for the injury complained of, by an action at law, but, under 
the act of 1839, are referred to the secretary of the Treasury; an 
executive officer, who has prejudged the case, who can exercise 
neither the forms nor die functions of a judicial officer; who acts 
summarily, without a juiy, and from whose judgment tiiere is no 
appeal. The case turns upon facts; facts properly triable by a 

J'ury. The question is, whether the articles on which the duties 
lave been assessed, are such articles as under the law are liable to 
be thus taxed. This is a question most fit to be answered by a 
jury of merchants, under the instructions of a court of law. The 
plamtifis allege that the duty was not authorized by law, but to ob- 
tain possession of their goods, they were compelled to pay it, pre- 
testing against the right of the government. And they brou^t an 
action at law to recover from the collector the excess of duty paid. 
This course had been sanctioned by previous decisions. It was, in 
feet, the only lefiectual course they could take to obtain possession 
of tiieir goods. A tender of the legal duty, and a replevin, if it 
would lie, involved the necessity of security for a return of the 
g6ods which, if in the power of the importers, might not have been 
convenient to them. But a replevin is expressly prohibited in such 
a case by the act of 2d March, 1833. 

The question arises on the facts stated. Illegal duties were de- 
manded by the collector and paid to him by the plaintifis, before 
they could obtain their goods ; and the question is, has their remedy 
at law been cut ofl'by the statute of 1839 ? This is a taxing power; 
the most delicate power that is exercised by the govemikient. It 
reaches the concerns of the citizen, and takes from him a part of 
his property for purposes of revenue. The tax should be judicious, 
and the mode of collecting it should be specially guarded. Care 

JANUARY TERBt, 1845, 906 

Carj «. Cartit. 

riumld be taken not to infriiifi;e private rig^ht in maldng this public 
exaction. But, especially, where, in this respect, a wronff has been 
done to the citizen, the courts should be open to him. ms remedy 
ahodld be without obstruction. But my brethren say that the act 
of 1839 takes away from the plaintiffs aU remedy except an appeal 
to ttie secretary. The state courts as well as the federal are closed 
■gainst the injured party. 

The able men who laid the foundations of this goTemment saw 
that, to secure the gjreat objects they had in view, the executive, 
legidative, and judicial powers, must occupy distinct and indepen- 
dent nheres of action. That the union of mese in one individual 
or body of men constitutes a den>otism. And every approxima- 
tion to this union partakes of diis character. 

What, though no positive injustice be done to the plaintifls in this 
ease ; is ihwt anv reason why the great principle inrolved in it 
durald be yieldea? What is this principle r It is nothing leas tiian 
tins; that tfuroudiout the whole course of executive action, sum- 
mary, dirersified, and multiform as it is, for wrongs done the citi» 
sen, all legal r^ress may be withdrawn from him ; and he may be 
turned over as a petitioner to the power that did the wrong. If this 
may be done in &e case under consideration, it may, on ttie same 
principle, be done in every similar case. 

A seizure of a vessel and cargo may be made by an ofScer under 
a supposed breach of the rerenue law, and the question of forfeiture 
may be referred to the secretary of the Treasury. Private property 
may be taken for public purposes, and the owner may be limited 
to me remedy, if remedy it may be called, of petitioning some exe- 
cutive officer for remuneration. Militar]|r violence may be peipe- 
trated on the person of a citizen or on his property, and his reuef 
mqr be made to depend on the will of the commander-in-chief. In 
short, in every line of the executive power, wrongs may be done 
and l^al redress may be denied. 

The cases put may seem to be extreme ones, and therefore not 
likely to bappen. But do thejr not test the principle? I diink 
diey do. If Conffress may deprive these plaintiffi of their remedy 
by action at kw, mey may do ihe same thing in the cases specified. 
Indeed, it would be difficult to prescribe any limit to legislative 
action on this subject. It can, at least, be extended through all the 
ramifications o! executive power. 

To say that this will never be done, and that the consequences 

Sioken of can never happen, is no answer to the argument Do 
e consequences lie witbm the exercise of the principle ? If they 
do, the consequences must follow a j|;eneral exercise of the power. 
The dan^r is in sanctioning the pnnciple. At this point, 1 meet 
die principle and combat it I object to it because it is dangerous 
and maybe ruinous. It takes firom die citizen his rights — ^r^ts 
secured to him by die Constitution ; the trial by jury, in a court of 
Vol. m.— 34 Z 


"" White V. Nieholli 6t aL 

law. * This is done by the act of 1839, if. it be what it is now con- 
strued to be. In this aspect, then, I say, the act is unconstitiitional 
and void. It not only strikes down the rights of the citizen, but it 
inflicts a blow on the judicial power of the country. It unites, in 
tiie same department, me executiye and judicial powef • And on a 
subject the most delicate and interesting; and one which, of all 
others, may most easily be converted into an engine of oppression. 
In this ^remment, balances and checks have been carauDy ad- 
justed, with a view to secure public and private rifi;ht8 ; and any 
departure from this organization endangers all. We have less to 
apprehend from a bold and open usurpation by one department of 
the eoyemment, of powers which belong to another, than hj a more 
gracual and insidious course. In my judgment, no principle can 
be more dangerous than the one mentioned in this case. It covers 
from le^ re^onsibility executive officers. In the performance of 
their imnisterial duties, howeyer they may disregard and trample 
upon the rights of the citizen, he can claim no indemnity by an 
action at law. This doctrine has no standing in England. No 
ministerial officer in that country b dieltered mm legal responsi- 
bility. Shall we in this coimtiy be less jealous of private ri^ts 
and of the exercise of power ? Is it not our boast that the law is 
paramount, and that all are subject to it, from the highest officer of 
the country to its humblest citizen? But can this be the case if any 
or every executive officer is clothed with the immunities of the 
sovereignty? If he cannot be sued, what may he not do with im- 
punity. 1 am sure that my brethren are as sincere as I am, in their 
convictions of what the law is, in this case ; and I have only to 
regret, that their views do not coincide with those I haye statecL 

RoBSRt Whtts, Plaintiff in error, v. William S. Nicrolls, Wil- 
liam Robinson, Otho M. Linthicum, Edward M. LiNTHiomi, Ra- 


Robert WHrrE, Plaintiff in error, v. Henrt Addison, Defendant 


In an action for a libel it is not indispensable to nse the word * malieionsl j** in the 
declaration. It is sufficient if words of equivalent power or import are nsed. 

Every publication, either by writing, printing, or pictures, which charges upon, 
or imputes to, any person that which renders him liable to punishment, or 
which is calculated to make him infamous, or odious, or ridiculous, is prima 
fadt a Ubel, and implies malice in the author and publisher towards the per- 
son concerning whom such publication is made. 

Proof of malice cannot, in these eases, be required of tna party complainlaf , 

JANUARY TERM, 1845. aw 

White V. Nichollt et aL 

beyond the proof of the publication itself; JattLfication, ezcnse, or eztenn* 
ation/if either can be. shown, most proceed from the defendant 

I^Fileged commnnications>are an eiception ; and the role of evidenee, as to 
such cases, is so far changed as to reqoire of the plaintiff to bring home lo 
the defendant the existence of malice as the troe motive of his condocL 

Privileged commonications are of foor kinds : 

1. Wherever the aothor and publisher of the alleged slander acted in the bona 
fide discharge of a pobtic or private dotjr, legal or moral, or in the prose- 
cution of his own rights or interests. 

S. Any thing said or written by a master in giving the character of a servant 
who has been in his employment. 

S. Words nsed in the ^orse of a' legal or Jodicial proceeding, however hard 
they may bear opdn the parnr of whom they are used. 

i. Poblications duly made in toe ordinary mode of Parliamentary proeeedingt» 
as a petition printed anddelivered to the members of a committee appointed 
by the Hoose of Commons to hear and examine grievances. 

Bot in these cases the only effect of the change of the role is to remove the 
usual presomption of malice. It then l>eoomes incumbent on the party com- 
plainings to show malice, either by the construction of the spoken or written 
matter, or by £icts and circnmstances connected with that matter, or with 
the sitoation of the parties, adequate to authorize the conclusion. 

Proof of express malice, so given, will render the publication, petition, or pro- 
ceeding, libellout. Falsehood and the absence of probable cause will 
amount to proof of malice. 

The jury being the tribunal to determine whether this malice did or did not 
mark the publication, the alleged Ubel should be submitted to them, and the 
court below erred in withholding it. 

These two cases depended upon the same facta and principles, 
and were ar^ed together. They were brought up by wnt of error 
from the Circuit Court of the United States for me District of 
Columbia, sitting for the county of Wadiington. 

The facts were these : 

On the 26tfa of June, 1841 » the following letter was addressed to 
tfie President of the United States : 

'< Georgetawnj June 26I&, 1841. 

" Sib : — ^We fed it to be proper to put you in possession of the 
grounds upon which the removal of Mr. Robert White, from the 
office of collector of customs of this port, is requested. You will 
recollect Ae humiliating and prostrate concUtion of the people of 
this distnct about a year ago. when the majority then in Congress 
determined to destroy ourlmnics as a punishment upon 4is for having 
avowed and published our preference for the candidates of the ^reat 
wlug party. It was in that dark season that Mr. White determmed 
to desert his own fdlow-citizens, and to join in the war which was 
making upon their liberties and interests. Beb^ then seeking officii, 
he Qiougiit to recommend himself to the executive by getting up a 
memorial here, which was to be used as a sanction or approvd, on 
the part ot our own dtizens, of the mad- policy which had been 
adopted bjf tiieir oppressors. : He then joined with an assemblage 
of roity-eig^t persons in getting up a memorihl, which none but 
Qiemselves could be induced to sijepti. These memorialists, wi& 
sdwut five excc^tions^ could not be identified by name or residence, 



White V. Nichollt et aL 

as citizens of Georgetown. Upon invesdgationy ihey proyed to be 
apprentices and journeymen, holding a transient residence in the 
town. Being few in number, they were no doubt beliered by Con- 
gress, and persoas at a d^tance, to be a select body of expenenced 
merchants and traders, who had some knowledge of the subject of 
their memorial. A copy of the memorial has been deposited with 
the secretary of the Treasury. 

** It is, perhaps, one of the vilest calumnies ever issued by a band 
of thoughtless and irresponsible individuals, many of whom would 
have shnmk from such a proceeding had they the necessary intelU- 

Smce to comprehend its enormity. But not so with Mr. White, 
e knew the paper contained an unmitigated dander. He seemed 
to be willing to olacken the character of those of his fellow-dtizens 
who had been intrusted with tibe charge of our banks, if diat would 
only secure an appointment when all other methods had fidled him 
for the preceding twelve years. 

^^ We revolt at the idea of Mr. White being permitted to remain 
in an office whose emoluments flow from the labour and enterprise 
of fhe very men whose business and fronilies he sou^t to involve 
in ruin. 

^^ It is impossible that he can ever regain the confidence of men 
whom he abandoned and vilified in the darkest hour of their exist- 
ence. His expulaon from office is no less demanded by his unpar- 
donable conduct, than by justice to the wounded feelings of on 
injured community. 

^^ About the same time, June, 1840, with the persons under his 
influenc^e, and as is believed at the request of an office-holder of 
neat political rancor, Mr. White procured Dr. Duncan, then a mem- 
ber of Congress firom Ohio, to aeliver a speech here in abuse of 
General Harrison. The speech was, perhaps, the rexj vilest that 
was ever delivered by that gentleman. 

" It was. so satisfactory to Mr. White, who acted as vice-president 
on the occasion, that he immediatelv rose, and moved flie doctor a 
vote of thanks, and a request that the speech be fiimidied for pub- 
lication. The resolutions which were adopted unanimously on the 
occasion, were nearly as calumnious as the speech itselfl 

" We refer ypu Xo'ihe Globe newspaper of the 3d July last, for 
an official account of the proceedings of the meeting. We will only 
trouble you with a few sentences, that you may have some idea or 
the character of those extraordinary proceedings. They denounced 
Greneral Harrison as ^ the nominee of the bank whig federalist, abo- 
litionist and anti-masons,' ' an abolitionist of fi^ud and conceal- 
ment,' as being guilty of pursuing a course ^ grossly insulting to 
common sense, honesty, and decency, by shrouding hims^ in 
darkness,' 'of courtbg dangerous fanatics, and countenancmg 
them (abolitionists) in dieir mad war&re upon our peace, our pro- 

JANUARY TERM, 1846. 960 

White 9. NicfcoUs et aL 

pei^, and our liyes,' and ^ that he Aould be treated as an aboli- 

" Mr. ¥niite'8 was the place where the leading men of his party 
nightly assembled up to the close of the presidential election, and a 
respectable citizen dedso^es, that since Mr. White's appointment he 
circulated ^busliels' of the ^ Globe.' He declines to gire Us 
formal evidence in the case, upon the ground, that he being a near 
neighbour of Mr. W., he is unwilling to disturb the friendly personal 
relations existing between them. 

" Such was Air. White's general political violence, and the unhesi- 
tancy with which he descended to the lowest means to secure the 
&vour of the late administration, that no one doubted here but 
that he would \>e dismissed when the present party came into power, 
and no one can be more astonished than Mr. White is himself at his 
retention to the present time. 

** We will also take this opportunity to state, that we desire Mr. 
H. Addison to be appointed to the oflSce of cx)llector in Mr. White's 

Elace, whose abundant testimonials and recommendations of our 
usiness citizens are already on file with the secretary of the 
" Widi great respect, your obedient servants, 

Chas. C. Fulton, 


Rap. SfiBfMES, 


Wm. Robinson, 

Wm. S, NiCHOIiLS, 

Paul Stevens. 
" P. S. It is fiirflier proper to state, that Mr. Addison's recom- 
mendations, filed with Mr. Ewing, are signed by every citizen in 
town, with a single exception, who have regular business to transact 
at ttie custom-house." 

On some other day, which was not stated in the record, the fol*- 
bwing letter was addressed to the secretary of the Treasury. 

^^Hon. Thomas Ewing, 

Secretary of the Treasury. 

^^SiBi — ^Earnestly requesting, as we now do, the immediate re- 
moval of Mr. Robt. Wnite firom the office of collector of this port, 
we feel it proper to stat6 candidly our insuperable objections, to his 
continuance in that office. 

** At a time when a remorseless and vindictive majority in Con- 
sresB were makinjg a ruinous war upon all the business interests of 
me country, by destroying coi^dence in its banking institutions, and 
"mhen that majority were pursuing a most persecuting and ruinous 
course towsurds the ddfenceless and unoffending people of this Dis- 
trict, Mr. White, for the mere purpose of evidencmg his unscrupu- 



White 9. NichoUt et aL 

lou8 zeal in behalf of the late administration, and to secure its fitTour, 
did, under the most ofiensiye circumstances, si^ a violently abuave 
and insulting memorial to Congress, urging m the most decided 
manner the adoption of &tal measures toi^^inr the banks, by compel- 
ling them to continue specie payments, when all the institutions (^ 
Virginia and Maryland had suspended, and thereby to be compelled to 
pursue a destructive and burdensome policy towards their customers. 

^< The object of the memorial Was to place somethmg in die hands 
of our enemies, in the shape of an approval of their course, which 
was a ^ss deception. 

** This offence becomes greatly aggravated, when it is known that 
Mr. White knew, so far as his acquaintance went with his co-agn- 
ers, that they were too grossly ignorant of business and banking to 
be able to express any opinion upon such a subject The omer 
ogners, with the exception of two or three, were so wholly imknown 
to our busmess community, that Mr. White would not be able to 
identify their persons or designate iheii residences. It is to be taken 
for granted that they were merely transient labourers, or persons so 
young as not then to have attracted the notice of our oldest and most 
observing citizens ; some of them, indeed, were known to be small 
apprentices. So offensive and unpopular was the whole proceeding, 
that with the exception of, perhaps, two others, (from whom our 
community would look for nothing better,) Mr. White was the only 
reqiectable man of buaness who could be induced to put his name 
upon the paper. His own purpose could never have been detected, 
, but for his appointment as collector, which so soon succeeded. Mr. 
White's experience in trade had taught him the indispensable ne- 
cessity there was for banks in this District, and lib intelligence and 
sense of justice were outraged by the declaration that our banks 
should be made to pay specie, when the banks of our neighbouring 
states of Virginia and Maryland found it wholly impracticable so to. 
do. He knew the gentlemen who had the management of our ban)cs, 
directors as well as officers, and he knew they stood without reproach, 
and that it was wholly impossible that the^ could be influenced by 
the low and disreputable designs which his memorial so unscrupu- 
lously charged to them. It was a vile slander, put forth so as to 
evade the responsibility of a legal prosecution. We think he is the 
last man to hold an office, the value of which depends upon the en- 
teiprise and integ^ty of the very men whose famiUes and business 
were alike to be overwhelmed with ruin at his special' application. 

"His removal from an office thus obtained would be doubly grati- 
fpng to us, when we know his family docs not need its emoluments 
for support. 

" It can be proved that at his store, in which the office of collector 
is kept, there were almost nightlj^ assemblages of the principal party 
men who sustained the late administration, and particularly during 
the fall of 1840. 


White «. Nichollt et aL 

** A highly respectable man has stated that, during die latter part 
of &e late canTass, he saw Mr. White preparing immense nomoen 
of the newspaper called the *Washinfi;ton Globe/ for circulation, 
but, being a neiri&bour of Mr. White, he is unwilling to appear as a 
witness agabst nim. The language the gentleman used was, that 
^he had seen bushels of ttie GloM so prepared, since his appointment 
as collector.' 

** Under these circumstances, we would most respectfullj ask jou 
to dismiss Mr. White from &e office, and that our fellow-townsman, 
Mr. Heniy Addison, who has alreaoy been recommendi^ by most 
of us, may be anpointed to fill it 

*0. M. LinTmouM , Wm. Hatmajt, 

Raphael Skicmes, Jos. Smoot, 

Wm. RoBorsov, Wm. S. Nioholls, 

£. M. LiN T Hi o uM , James Thomas, 

PERsquNE Wabfisld, Jeremiah Obmb, 
Robert Ouu), T. P. Waugh, 

Wm. Jewell, Edw. S. Wright, 


Wm. Lahg, W. S. RniGGOLD, 

S. E. Scott, J. I. Stull." 

On &e 19th of June, 1841, the following letter was addressed to 
the secretary of the Treasury. 

<< GeorgHowny June 19, 1841. 

*^ Sir : — ^About a y^ar a^, the Hon. A. l)uncan, of Ohio, was in- 
Tited^ by a number of ofltoe-holders and others, to hold a political 
meetmg in this town* 

<< The meeting was held on ^e 26th June, 1840, and the proceed- 
ings were publidied in Ae Globe, on or about the 3d July. 

<< Mr. Robert White, our collector of customs, acted as one of the 
Tice-presidents of the meeting, and who was so tickled and delight- 
ed wiA Duncan's vile calumnies upon Gen. Harrison, that he arose 
and made the motion that he (Duncan) would prepare the speech 
for publication. The address was said to be one of the vilest, and, 
if you desire it, a copy shall be presented for your perusal. The* 
persons who moved the resolutions, and one of the secretaries, were 
cleiks in the departments. 

<< We now hand you a copjr of two of the resolutions, and an ac- 
count of &e proceedings, ^raach we presoit sq>arate, for your im- 
mediate and convenient notice, referrmff you at the same time to die 
very lengUiy ac6ount to be found in me Globe of the date men- 
tioned afove. 

<< You will see that the copy now sent q>plies the following Ian* 
fpmge to General Harrison: 'Nominee of the bank whigs, fi^leral* 
ists, abolitionists, and anti-masons.' < Fraud and concealment' — 
'grossly insulting common sense, decency, and honesty, by ahlroud- 
ing himself in darkness' — 'of courting dangerous &natics, and 



White «. Niohollt at al. 

oonntenancine tkem in their mad warftre upon our p^ace, property, 
and Hyes.' OEIe should be treated as an abolitionist' 

<<This conduct of Mr. White, -in connection with his signatnie 
beinff placed^ the in&mous anti-bank memorial/ which a delega- 
tion uom town left in. your hancla when. Mr. White's removal was 
first requested, renders him extremely offensive to the whigs here. 
We affiondwuld tdke the opportunity to remind you of our earnest 
bope 9iat Mr. H. Addison will be appointed to that office, whose 
fill! and abundant testimonials are already in your possession. 

<< The continuance of Mr. White is mortifying to every read friend 
of th^ administration here. 

^^ WiHi respect, your obedient servants, 


William Laibd, 
Wh. S. Nicholls. 
"Hon. T. EwiNG, 

Secretary of the Treasury. ^^ 

On the 2l8t of September, 1841, the following letter was ad- 
. dressed to the President. 

'^Gtorgeiaum, Sept. 21 ^ 1841. 
^' Sib : — Should any paper be sent to you, contradicting in any 
manner a rq>resentation made by ourselves to the conduct of Mr. 
White, late collector of this port, we will thank you to let us have 
acopy of that paper, with the names appended thereto, that we 
may see in what particular, and to what exteiit, our statement may 
liave-been contracjucted, and by whom. 

^^ With great regard, we are, sir, your obedient servant, 

O. M. LmTmcDM, 
W. RoBmsoN, 
WnXiAM Laibd, 
Raph. Semmes, 
Wm. S. Nicholls. 
D. EtfGLiSHf Jun. 
^<To Ks EzceDency, John Ttl^ P^readent U. S." 

And upon the 23d of September, 1841, th^ following : 

^^ Georgetown^ Sqdember 23, 1841. 

'<SiB :«^I fisel -bound to make to you this statemei^ in conse- 
fluto ce ci a report which has reached my ears, that Mr. Robert 
White^ with Cqytain Garbery, and B. Madcall, are endeavouraig, 
by ikeu joint iimuence and representations, to injure me in your 
estimation. It is due no less to- you, than to my friends and mjsdf^ 
to write you this letter, in which I shall omit every thiilg that is not 
really necessaiy to be stated. 

^<'As to Mr. White. I fed warranted in assuring you that the 
i q p ies e ntations made ibyoit by my friends in regurd to him, are 
tni« tfiroug^Qut, of which hct they will be able to fumidi you ^ 


White «. Niebnlls et %L 

ji« I ■■■ ' ■■- ■■ i» 

abundant eridence. No man of character h^re. would hazard the 
intimation that these friends of mine would possibly descend to a 
misrepresentation in regard to Mr. White or any one else. 

<' ]• or all they have stated they can produce a mass of evidence. 
too strong to be doubted. 

^^In ruation to Mr. Carbeiy, 1 have only to refer ^ou to my let- 
ter to you of the 23d August, and its accompanymg papers. I 
would take much pleasure in furnishing you with any turtner eicpla* 
nations in regard to that case that you mi^t desire. 

^^ It is wholly impossible that Mr. Mackall can have the least 

Sound for complaint, as I can supply you witb abundant proof tW 
ere was no employment here for him whatever, nor any prospect 
of need of his services at any time hereafter. All &e labour per- 
formed by him, since I have been appointed to diis office, was 
merely to mm a receipt for his pay. He, or his friends for him, 
appealed to fnt secretaiy.of Ae Treasury, and seemed to h^ve suc- 
ceeded in producing an impression on his mind Aat I was meditat- 
injg an unjust proceeding towards Mr. Mackall — aU this, too, before 
I had said or written a word io Mr. Ewing upon the subject. He 
wjTote me that Mr. Mackall must not be removed until I assigned 
him my reasons for so doing. I ebeyed his order ; but, on the 
yery day J wrote him that there were no service for Mr. MackaU to 
peitorm, Mr. Ewing instructed me to discontinue the office. Mr. 
Mackall still complained to the secretary, who wrote me to come to 
the Treasuiy Department. I went, ancl after hearing my statement, 
he said he was then satisfied that he had done what was proper m 
the case. I did not feel at all hurt at the course taken by BIr. 
Ewing, because I knew that the whole matter had been grossly 
misrepresented to him. I had been waited upon by a friend, y^o 
earnestly remonstrated with me upon the subject of abolishing Mr. 
Mackalrs office; as he said that, in that case, the influence of a 
powerful fiunily connection would be immediately wielded against 
me. I did not exactly see the propriety of being governed by such 
apprehensions, and took the course prompted by my sense of'^duty, 
and relying confidently upon the favourable result of an impartial 
iny^stigation, dbould any difficulty occur. 

"There is but little revenue collected at this port, and I felt it to 
be my dutylo conduct its business with as little expense as possi- 
ble. I found the expense of this office, as fiir as Georgetown is 
concerned, to be - 1^,673 34 

"I haye reduced these expenses to the sum of • 1,046 00 

"Thus sayinjs to the government ... $1,428 34 
without at all impairing the efficiency of the service. The whole 
expense of the office for Georgetown is now absolutely $45 a year 
less than Mr. Mackall was receiving for doin^ nothing. The ex- 
penses in Washington I haye reduced twenty-five per cent I did 

Vol. III.— 35 


White «. Nicholls at aL 

flnfl (torn a sense of duty, but not without anticipating much mis^ 

representation and abuse. 

** I am, skf with great regard, your obedient servant, 
"TothePtesiPENT." "H.Addison. 

On the 18th of November, 1841, Robert White brought die two 
suits mentioned in the titling of this statement. 

The declaration inihe suit agamst Nicholls and others contained 
two counts. 

The first was as follows : "And whereupon the said plaintiff, by 
Brent & Brent and Francis S. Key, his attorneys^ complains, for that 
whereas previous to, and at the time. of committing of the several 
griev^ces by the ddendants as hereinafter mentioned, the plaintUT 
was collector of the customs for the district, and inspector of die 
revenue for the port of Georgetown in the District of Columbia ; yet 
tfie defendants well knowing the premises, but greatiy envying the 
happy state and condition of the^said plaintiff, and contrivm^, and 
wickedly and maliciously intending to iniure the plaintiff m his 
cood name, feme, and credit, and .to bring him into jmblic scandal, 
mfamy, and disgrace,, with aild amongst all his neighbours, and 
other good and worthy citizens <pf the county aforesaid, and to cause 
the plaintiff to be removed firom his said office, heretofore, to wit : 
on me 20th June, 1841 > at Georgetown, to wit, at die county afore^ 
said, fidselv, wickedly, and maliciously did compose and publish, 
and caused to be composed and published, of and concemiiig the 
plaintiff, and of and concerning his aforesaid office, and of ana con- 
<;emin^ the plaintiff's conduct in his said office, for die purpose of 
procuring his removal liom said office, a certain false, maliciQus, 
and defiunatory libel, containing, amongst other things, the fsilse, 
scandalous, malicious^ defamatory, and Imellous matter of and con- 
Cieminff the plaintiff, and of and concerning his aforesaid office, and 
of and concerning his- said plaintiff's conduct in his said office, for 
the purpose of procuring the removal of the plaintiff firom his said 
office, as follows, that is to si^ : (then followed a copy of the letter 
to the President of June 26, 1841, down to the words " delivered 
by that gentlemiin," widi the necessaiy. innuendoes.) 

The second count was as follows: "And whereas also Qie said 
defendants, mtending and contriving to cause the plaintiff to be 
removed bom the o£» then held by him, as stated in the £rst count 
hcretctfore, to wit, on die 26th Jtme, 1841, at Georgetown, to wit, 
at the county aforesaid, fialsely, wickedly^ and maliciously, did com* 
pose and publish, and caused to be composed and published, of 
and concerning the plaintiff, and of and concerning his office, and 
of and concerning his conduct in his said office, ana for the puroose 
of procuring his removal torn hift. said office, a certain other raise, 
maucious, and de&matoiy libel. Containing, amongst other thingSi 
Ibe following fidsci 8can<udoU8, malicious, de&matory, and libdloua 

JANUARY TBBM, 1846. 376 

White «. Nieholls et aL 

matter of and concerning the plaintiflr, and of and concemiBg his 
said office, and of and concerning his, md phinti^s, conduct in his 
said office, and for Ae purpose of procuring the plaintiff's removal 
fiom his said office, that is to say : 

<< Mr. White's was the*place, &c.," (flien followed fte remamder 
of die letter not included m Hke firstjcount) 

The dedamtion concluded as follows : 

^^Bj reason of publiidiin^ of which said aereral libels, die said 
plaintm saith, that he hath been and is greatly injured in his good 
name, fame, and credit, with tod amongst all his neighbours, friends, 
and acquaintance. And by Ireason of the publishing of which said 
several libels, dife plaintiff saith that he was heretofore, to wit, on 
the 12th day o! July, 1841, at the coiinty aforesaid, removed from 
his office aforesaid, and was thereby deprived of the emoluments 
and income of said office, amounting to a large sum of money, to 
wit, tiie sum df three thousand doUars annually, and hath been 
o&erwise greatly injured, whereby the said plaintiff saith that he 
hadi damage, and is the worse, to the value or twenty-five thousand 
dollars ; and therefore he brings suit, and so forth. 

" BaEirr & BUent, /or plairU^y 

The declaration in the suit against Addison also contained two 
counts, with no essential variation .from the above. 

The defendants pleaded not guilty, and in November, 1842, the 
causes came on for trial. They were tried together, the same evi- 
dence and instructions prayed from the court being common to 
both. The juiy, under the direction of the court, found a verdict 
of ^^not Ruilty," and the followinff* bills of exceptions show tiife 
p<ni|t8 of law which were raised and ruled. 

PlainHf's 1st BtU of Exceptions. 
*^£i the trial of tiiese causes, the plaintiff, to support the issues 
. on his part, offered evidence to show that he was duly appointed to 
the ofi^ set forth and -described in the declaration, on the 21st day 
of July, 1840 ; and that he was acting as such officer from that time 
tin tiie 9th day of July, 1841, when ne was removed from office, 
and the defendant, Henry Addison, appointed in his place ; and 
flien further oflered in. evidence a written paper, fvizc, the letter to 
the President,) and proved that the same was in tiie handwriting of 
the defendant Addison, and that the simatures thereto were in the 
handwriting, respectively, of the severw defendants ; that the said 
paper so written and subscribed was sent to t^e President of th€ 
Umted States, and by him sent to the Treiasury Department, where 
it was filed on or before the 30th June, 1841, and kept by a cleik 
of that Department having charge of such papers, and wiown on 
one occasion to one person by him — which person had called to 
see it at the request of the plaintiff; and sdso on another occaaon 
to another person. 


White «. Nickollt et aL 

« And die plaintiff fiiilber offered eridence that one of die aaid d^ 
iendanta, whom he named, said, about the time q[ signing die aaid 
jM^^ and before the plaintiff was turned out of office, that die 
phuntiff had aimed a memorial against the banks in the District^ 
and swore that he would have him turned out of office. 

^' And also offered evidence that another of said defendants, also* 
named, had on one occasion said, after the said pap^ had been 
sent to the President, diat he had made no charges agamat die 
plaintiff; and on another occasion he stated he had made dhaises, 
and diat he could prove against die plaintiff more than he had ao^ 

** And die plaintiff further proved that die said paper, so writtei^ » 
and subscribed, was dbown to a citizen of Georgetown for the pur- 
pose of being subscribed bv him, who refused so to do, because he' 
was not acquainted widi all the ftcts stated in said paper. 

** And die plaintiff, upon the evidence aforesaid, oflered diereiqxm 
to read the aud paper to the iuiy ; but the court refused to allow die 
said jW>^ to be read in evidence to the ju^. 

** To which refusal of the court the plamtiff excepts, and prays 
the court to sign and seal this bill of exceptions, which is done ac» 
c6rdin(^7, this 3d day of Januaiy, 1843. 

^/ B. ThRUSTON, rSEAL.1 

'< Jas. S. MonsEix. LteAL.j" 
Pktintg)^U2d Bill 6/ Exceptions. 
<< And the plaintiff further offered, after the evidence aforesaid in 
former exceptions had been given, to show die malice of defendants in 
writings sijmihi;. and presenting said paper^ to jead the sud paper, 
and onerea eviaence m connection therewith of the felsehood df die 
charge therein^ stated, tdiich the dourt also refused, and the plaintiff 
excepts to said refusal, and prays the court to sien and seal this bill 
of exceptions, which is done accordindy, this 3d Janiuuy, 1843. 

" S. Thhustoit, [seal.] 
<< Jas. S. MoasELL. [seaL.]" 
Plahdif's 3d BUI of Exceptions. 
<* And the plaintiff, after the evidence was offered, as stated m the 
first and second bills of exceptions, and ^er the opinion had been 
given by the court, as dierem stated, then oflered to prove by sub* 
stantial evidence, for the purpose of showing malice in the defend- 
ant* in writing, sijgping, and presenting die said ps^per, that the 
chaige contained in the said paper^ of the plaintiff's having lost 
die confidence, of the men from whose labours and enterorise dM 
emoluments of his office flowed, was felse, malicious, and widiout 
probable cause ; thi^ aU the pereons doing business widi the said 
plaintifll^ as such officer in Ins said office, auring all the time of his 
eontiniungin office, were General Waller SiAith, Heniy McPherson. 
John HopldQS, and Jabe^ Travers— all w}iicE persons the plaintiff 

JANUARY TERM, 1946, «7 

White #. )fieho]lt et al. 

now oflers as "witnenes to prore thai 'the phintiff had neret loil 
Aeir confidence, but that thev always continued flieir confidence in 
file plaintiff^ and approved' of his conduct as such officer. And also, 
fiirtfaer to fiadsify the said charge, the plaintiff ofiers to prove that an 
election was held in Georgetown, in. Februair, 1841 and 1842, fi>r a 
common councilman in said town, in which election a maibrily of 
the qualified voters of said town voted for the plaintiff; ana he was 
elected to the common council, notwithstanding the active opposi-^ 
tion of several of the defendants. 

^^ And the plaintiff, also, furOier oflfered to prove that.the charges 
in the said paper of me plaintiff's having descended to the lowest 
means to secure the fisivour of the late aidministrationi and diat he 
procured Doctor Duncan to deliver a speech in Georgetown in the 
abuse of General Harrison; and that the plaintW? was &e place 
where die leadinjg members of his party nightly assembled up to the 
close of the presidential election ; and that the plaintiff, once his- ap- 
pointment to his said office,- had distributed busbels of the Globe, 
were false, malicious, and without probable'cause, Jbj producing 
witnesses to fidsi^ and disprove the said char;^^ and show that 
there wasiio foundation or probable cause for said charges. 

'^ But the coutt was of opinion ^at such evidence was inadmissi- 
ble, and refused to albw the same to be ^ven in evidence to tilie 
juiy ; to which refiisal the plaintiff, by his counsel, exc^yts, and 
prays the court to sim and seal this ImU of exceptions, which is done 
accordingly, this ScTof January, 1843. 

'^ W. C&AjrcH, [seal.] 

- - .J., 

^ Jas. S. Mobsell. [8 
PUbdiPs 4ih Bill ofExeeptumi. 

^^ In the further trial of this cause, and after ofiering die evidence 
stated in the preceding bills of exceptions, and after tiie4)pihion8 
and decisions of the court as therein stated, the plaintiff, by his 
counsel, in order to show express malice, ana the want of all pro- 
bable cnuse in the defendants, in writing, and subscribing, and pre- 
senting, as before stated,*the paper — ^wnting set out in tne declara- 
tion — and that the same was so written, subscribed, and presented 
by such defendants, not for the purpose of claiming redress for a 
grievance in the conduct of a public officer, but maliciously, and 
fiom private pique and resentment, and in order that the said paper, 
wifli' die evidence now to be offered, should go to ttfe jury as evi- 
dence of malice on the part of the defendants by competent evidence," 
and the want of probable cause for the charges contained in said 
paper, and in connection with such evidence to offer the sud paper 
m jcvidence to the jury. 

^'And the defendants, by their council, Objected to said ievidence ; 
and diereupon, the court refused to allow the same to be given for die 
purpose above stated, or for any o^er puipose ; to which the plaintifi^ 



White V. NieboUt et aL 

■ . ' -^^^^ ' ■■ 

b^ his counsel, excepts, and prays the court to sien and seal this 
bill of exceptions, Wnich is done accordingly, this 5th day of Janu- 
aiy, 1843. 
*^ Witness our bands and seals, this 6tfa day of Januaiy, 1843. 

^^ B. Thruston, f seal.] 

^' JaS. 8. MOBSELL. [seal.]'' 

Pkdntiff^t 6th BiU ofExcepiums. 

^* In the further trial of this cause, and after the eyidence stated 
m the preceding bills of . exceptions had been offered as stated, and 
after the opmions and rejections of evidence as herein stated, die 
plaintiff in support of the issues iomed on his part, for the purpose 
of proving a publication of the lioel charged in the declaration on 
the part of certain of defendants, whose names are signed to the 

Cpers, now offered m evidence die following papers, (the several 
ndwritings of the said defendants signing the same being ad- 

'< The letter to the seeretaiy of the Treasury ; 

«< The letter of June 19di, 1841 ; 

<< The letter of September 21st, 1841 ; 
by showing, from the said papers, that the said defendants had re* 
ferred to and re-asserted the truth of the charges contained in die 
said libel charged in the declaration ; and that such reference and 
re-asserdoji was not privileged, and was a publication of die libels, 
for which said defendants were responsible m this action. 

*^ And in the case a^pdnst Henry Addison, the plaintiff, fbr a like 
purpose, and to prove m the same way such a pubuciition of die libel 
charged in the declaradon as h^ was responsible for in this action, 
offered m evidence a paper, admitted to be in the handwritixig of 
^d defendant, Heniy Addison, viz. : the letter of Sqytembier 23d, 

^^ And the defendants, by their counsel, objected to the admissi- 
bility of said papers so ofiered in evidence. 

^* And the court sustained the said objection, and refused to allow 
the said paper to be given ,in evidence ; to which opinion and refusal 
the plaintin,by his counsel, excepts, and prays the court to sign and 
seal this bill of exceptions ; which is done accordingly, this rai day 
of Januaiy, 1843, as witness our hands and seals. 

" W. Cranch, Fseal.! 
" Jas. S. Morsell. [seal, r 

To review die decision of the court on these several points of law 
the present writ of error was brought. 

May and H. Breniy for the plaintiff in error. 
Bradley and Cbxie, for the defendants in error. 

JHoy, fbr plamtiff in error. 

Wluft is the law applicable to the facts exhibited in this record? 


Whitt 1^ If iehoMi tt >L 

ItwiH hardly be denied tiiat,inordininr'cftse9, tbe writing bere 
declared on would* in Tiew of its terms and tendency^ be considered 
a libel, and tbe demndants to have acted maliciously^ tiiat is« widi the 
view to effect those consequences, to whiiA the means mey have 
used naturally and obviously lead. 2 Stailde's Ev. 361. 

But it win be contended diat dus is distinguished fiom the ordi*. 
nary cases of libel, by reason of the occasion of writinc^ and publish- 
ing it; it puiportuiff to be a complaint about an official gnerance, 
and being addressed to the President of die United States, die ptoper 
auttiorhy to redress it; that this is \diat is termed ^^ a privQegecleom* 

That there is such a descripdon of libels* wdl dasafied by stable 
legal distinctions, is admitted. They are rounds upon considera- 
tions of public policy and convenience, and do confer upon dieir 
authors and pubuldiers certain privileges. 

Now what is the nature of a privileged communication, and \diat 
ve its \egA incidents? 

It may be defined to be a writing publidied fona/cb about a law- 
ftd occaaon. 

This lawful occasion maybe found in die performance of a public 
m private duty of a lejpl or moral nature— or die fiur and honest ful- 
filment of such obligMions as sprinff outof the social relations of life; 
as in die exhibition of articles of the peace before a civil magistrate, 
or other communication in die way or a judicial proceeding; apeti-^ 
tion about li public nuisance, or remonstrance presented by citizens 
to die proper audiorities; an account of die character of a servant, 
made by a master ; a report on the character of an intended huai>and, 
given bv a brodier to a sister, &c. 

But mese privfleged libels are separated into two classes. 

The first are all such communications as are presented in the course 
of justice, and before a tribunal having power to examine mto dieir 
trum or felsdiood. 

Tbe second class are all such as do not arise in die course of jus- 
tice, and before a tribund, &c. 

^ Now, it is said to be the incident of the first class, that die occa- 
sion is an absolute bar to an action, even though the libel be felse 
and malicious. 

The incidents of the second class are, that the law only raises a 
prima /ocje presumption in favour of the occasion, which operates in 
die nature of^evidence, and supplies a prima fatdt justification ; and 
also that, under the general issue plea, the modves of the defendant, 
and the truth of the hbel, may be given in evidence to die jury. 

But there must be the concurrence of an upright intention along 
with die lawful occasion. It must not be w officious intermeddling 
with the rights of others, nor published through hatred and ill-will. 
It is the first requisite of this class of ^^ privileged communicadons,'' 
diat diere be no taint of personal malice about it 


White «. Nieholls<^t aJ. 

A writing Aus justified bjr the occasion and good motives of its 
authors, bestows upon them an irresponsibility to lesal condemna- 
tiouy even thoog^ it produce ihjiuy to Ae rights of otSos. 

lliis doctrine is foupded not omy upon considerations of public 
conyeniencei but also on a confidence in human motives, where they 
are uprig^ and pure. 

The law pteferrin^ to sufifer the contingencies of occasional injuiy 
that may happen to mdividuals, rather thui by shuttinj^ t&e door to 
the fireedom of inquiry and complaint upon the administration of 
public afiairs, the proceedines of courts of justice, or the perform- 
ance of moral duties, where done feirly and truthfully, and the If^ell- 
being of society should be prejudiced. Besides, the party accused 
in such cases is not without redress. If he bf availed unjustifiably 
in a jucUcial proceedbs in a court, its dignity is oflended and its 
censures secured ; besiacis, the benefit of evidence to vindicate him- 
self and disprove such charges is afforded. . The true criterion of 
the privilege in the first class, (which creates a bar to an action,) i^ 
to be fotmd in the power of &e tribunal to afford this redress. . If 
the libel be published before those who cannot afford this summaxy 
redress, then the occamon does not bar an action, and the libel be- 
longs fo'the second class of privfleged communications; and in all 
these, if the libel be malicious in feet,, the privilege is g(me, and the 
pretext of the occasion only serves to aggravate the wron^. 

But the law in favour of. ^ese occasions vrill not {^s m ordinaiy 
libels) imply malice, but it must be proved. And this is the great 

There are two kinds of malice, as Justice Bajrley distiiu[ii]sbes in 
4Bam.dt Cress. 255; malice in law, and malice in feet Thefirstis 
inferred, the last mnstbe proved, llie first is a legal inference finovi 
all ordinary libels. Tlie last is a leeal requisite to maintain an ac- 
tion upon a -privileged libel; and when malice in fiict can be proved, 
the pnvilege that surrounded the libel, and in legal contemplation 

I)urmed it, is 'stripped off, and the exposed fibeller stands on the same 
evel with the rest of his kind. 

Lord Mansfield said, in Buller's N. P. 8, << Malice is the eist of 
die action, which is not implied fixim the occasion, but must oe di- 
rectly proved.'* 

And to sustain this summary of the general doctrine, are the fol- 
lowing authorities: 

English. 4 Reports, 14; 2 Smith, 3; 1 Bam. & Aid. 239; 6 Bam. 
& Aid. 648; 8 Bam. & Cress. 578; 1 Moody & Rob. 198; 2 Bing- 
ham's New C^aes, 464; 1 Saund. 131 ; 2 Burrows, 806. 

American cases and authorities. 2 Kent's Com. 22. In Massa- 
chusetts, 3 Pick. 383; 4 Mass. 168; 9 Mass. '264. N^ Yodk, 
5 Johns. 34; 5 Johns. 524; 4 Wendell, 135. Pennsylvania, 

5 Serg. & Rawle, 22; 4 Serg. & Rawle, 423. Maiyland, 51^. 

6 Johns. 459. 

JANUARY TERM, 1846. m 

White «• Niehollt et aL 

Now the case at bar nuut bdong to tiie second daas of pririlefled 
conununicatioiui. if indeed it be privik^ged at all. The Presi&nt 
could not affi>rd any redress to tiie plaintiC He has no power to 
compel the attendam^e of witnesses, or to administer an oath. He 
could not inquire in a Judicial waj into tfaetruth or fidsehood of the 
charfi;es. T^ plainm then turned to the Circuit Court for redress, 
and brou^t his action on the case. But that court refiisedi as the 
exceptions AoWj to allow him to read the Ubel to die juiy, and to 
prove it ^^fidse and without probable cause,** and that the defend- 
ants were actuated by malice In &ct, or ^^fxpress malice." But 
falsehood and want of probable cause are in diemselves evidence of 
malice in fact. 1 Moody & Rob. 470; 4 Bingiiam, 406; 4 Serg. 
&Rawle,423; 6 Hair. & Johni. 468. 

But the privilege ct this libel is very questionable. It pvefiBrs 
diams not relating in sny wise to the phdntiflTs oflScial duuracter. 
It afieges political offbices committed nefbre his appointment tct 
cAce. It shows a personal aspration after the oflSce held by plain* 
tiff. It is couched m terms ot fptut aspeiiQr, and breadies mroug^- 
out u spirit wholly incompatible witti the honest purpose of re- 
dressing a public grievance^ The privilege is doubtful upon the 
&ce of the libel, and vriiether privOeetd or not was a question for 
thejmy. 9 Bam. and Cress. 406 ; 2 Bmg^iam, 408. 

Tlie filOi exception shows a reiteration of the VM by die de- 
fendant Addison, after the plaintiff was removed from office. Then 
diere was no privily, and such repetition is a repubHoactioii. 
3 Stephens' N. P. S6M, and cases thope cited. 

I h^ve now explored this record. Questions of the grtvest con- 
sequences are presented by it They may wdl claim to be decided 
by this ^e highest court in our land. The doctrine of ** privileged 
communications" is here to be setded. There is seeming contrft- 
rietv of judicial omnion on die subject in our country. Tlie cases 
in 1 Sttund^s, in 5 Johnson, and in 2 Tjder, were af^woved by die 
court below as establidung die irresponsibili^ of these defendants, 
and will be relied on here to sustain that position. 

Under the free dispensations of our Constitution and laws, wha;« 
die ^greatest liberty of speech and of publication is allowed, and 
If here this liberty, under die heat of political passions, is ever 
tending towards hcentiousness, in assaults upon political adtersaries 
who may be enjoym? in office the fruits of party success, die queih 
tions here presented'become most interesting, and the decision that 
your honours may pass upon diem vnM ascertain the value of diat 
ereat right, to oiis description of citizens, ** of being secure in 
m^ goal reputation.'' 

Bradlejfy for defendants. 

If this action should be maintain^, there will be no end to actions 
for libels. The defendants Fere dissatisfied with a public offioer^ 
yoL.m — 36 2a2 


White V. Nicholls et aL 

and complained of what they thought a grievance to the o£Scer who 
could redress it. If this course was not absolutely privileged, yet 
it was so much so as to compel the plaintiJOf to show that me acts 
. were done without probable cause ^nd with malice, and to charge 
it so in his declaration. Buller's N. R, as cited, says that malice 
and falsehood are the gist of the action, but publication is also ne- 
cessary. The case in 7 Term R. 110, 111, shows that the occasion 
ihere justified the publication ; and this is always a question for the 
court. In 1 Bam. and Aid. 339, the jury determined whether or 
not the words were used, but the question of occaaon was reserved 
for the court. In 12 Wendell, 410, 546, all the American audior- 
^ties are summed up. The ^eat difficulty is to know how far the 

auestion of privilege gpes. in this case the court below thought 
lat the letters were addressed to such officers as were competent to 
remedy the grievpnce. In 1 Term R. 130, the. defendant pleaded 
precisely what has been shown in this case. In 2 Tyler's (Vermont) 
Rep. 1^, 133, it was held that where the occasion made a petition 
to the legislature necessary, no action wouM lie. If in this case the 
defendants had published the letter to the President, no privilege 
could have been pleaded. Kent's Com. 22. 

In 2 Sere. & Rawle, 23, the libel was read to the juiy without 
objection; but here we object that the plaintiff himself shows it to 
be a ca3e of privilege. 

In 4 Serff. & Rawle, 424, it was ruled that where malice and 
want of probable cause were relied Upon to take away the ffround 
of privilege, they must be averred in the declaration. §o also 
1 Wilson, 242; 2 Wilson, 304. All the exceptions in this case 
depend upon tibe first, fpr if the libel cannot be read the othe^ 
papiers cannot 

CcKte, on same side. 

What are the points in the case ? (Mr. Coxe here ^camined the 
several counts in ihe declaration.) llie result of the whole is, that 
a person belonging to one party charges some of the other party 
with being ^ui% of a crime to effect his removal firom office. The 
communication charged as libellous, was addressed to the President, 
and is not averred to have been ever published. Hiat officer was. 
vested with the whole control of the subject. The paper was sent 
to the secretary of the Treasury, fi^m whom an asent of the plain- 
tiff obtamed it. There was no proof of publication whatever. 
Some of the exceptions relate to mere matters of aggravation, 
which were not admissdble in evidence unless a ground of action 
was laid. Publication is essential ; and it must be proved before 
the libel can be given in evidence. Starkie Ev. 351. -The de- 
fendants are charged, it is true, with having shown the paper to 
citizens of Georgetown ; but they had a right to show it for the pur- 
pose of obtaining signatures. 1 Wendell, 547. 

JANUARY TERM, 1846. t»S 

White V. Nipholls et aL 

Was it a publication to send it to the President ? It was not sent 
for the purpose of injuring tiie plamtiff's character, but solely for 
the purpose of obtaining his remoTal from office. - It was a per* 
fectly constitutional proceeding; if not, Congress should pass an 
act to bum all the letters in the Departments. The President had 
full and exclusive jurisdiction over the subject, and was the sole 
judge of the propnety of the removal of the plaintiff. His reasons 
cannot be inquired into by the judiciary. 13 Peters, 255. 

It is a well established principle, that when an action is brought 
for an act which is in itself lawful, those matters, bevond die act, 
which make it criminal, must be averred in the declaration. For 
example, in an action for keeping a mischievous dog : it must be 
averred that the doR was addictea to biting, and that the defendant 
knew it to be so. In this case the defendsmts had a'right to address 
the President, and it must be averred that there was express malice, 
and also a want of probable cause. If the paper had been printea 
and handed about, it would have given a different aspect to .the 
afiair. In Stockdale'scase^ be was not responsible as long as the 
paper was confined to parliament. Generally, sending it to a third 
part^ is a publication, but not in all cases ; such as sending ii^er- 
mation about a servant, &c. 

It is said thatlhe Pre^dent could not have taken testimony about 
the matter. Suppose it to be so, and that his functions are imper- 
fect, still his iunsdiction over the subject-matter and power to act 
according to his jud^ent cannot be denied. 

Evidence^ of mahce cannot be fpven under this declaration. 
There should have been a special action on the case. 

R. J. Brentf for plaintiff, in conclusion. * 
^ This declaration is in the usual form, if the paper is an ordinary 
libel ; but not, if the paper is one which tiie party was privileged to 
send.^ On the face of the paper it is clear,, that the removal of the 
pjaintiff was not asked for upon public grounds, because the acts 
complained of took place before his appointment to office. He is 
not charged with unfitness for office, but held up to odium as a pri- 
vate individual. There was a personal motive m all this. Addison 
was to be appointed in his place. The motive is an important con- 
.sideration. 2 Bingh. New Cases, 463. 

The paper is actionable on its fece^ as it charges the plaintiff with 
things which are calculated to bring public odium upon him : such 
as ^* descending to the lowest means,^' &c. 

The declaration ave^ special damage. 1 Chitty's PI. 291, ed., 
1829; 3 Johns. C^ 198. 

It has been said that thep declaration is msufficient,.because it 
does not aver express malice. But it chai^ges, that the acts were 
done *^ falsely and maliciously;'' Is not this enooi^ ? It does not 


White V. NichoUs et al. 

aver^ that the libel was pubfiahed ** in presence of diren citizens^" 
btt It saysy that it was ^* published,'' which is the usual form. 

In 2 Bingham's New Cases, 273, the declaration was tiie same 
as in the present case. 

In all me cases cited, the libel was read to the jury, but in the 
court below it was shut out 

As to the question of pleading, see 4 Wend. 136'; 2 Burr. 812 ; 
4 Bos. & Put. 48, In tne last case the.action was for defaming a 
candidate for Parliament The averment in the declaration was ue 
same as in this case, and the plaintiff recovered. 

As to what is a sufficient averment, isee Holt on libels, 266; 
2 Smith, 43. 

Mr. Justice DANIEL delivered the opinion of the court. 

In the investigation of these cases it is deemed unnecessaiy to 
examine seriatim the five bills of exceptions sealed by the Circuit 
Court, and made parts of the record in each of them. The papers 
declared upon ^ libellous, and the instructions asked of the Circuit 
Court, are literally the same in both actions; the reasons, tod, which 
influenced the decision of the court pervade the "v^^ole of thesie in^ 
striictions, and are prese ited upon their &ce. 

Before proceeding more particularly to consider the rulings of the 
court upon these instructions, it may be proper to animadvert up<m 
a point of pleading which was incidentally raiseid in the* argument 
for the defendants in error; which point was this : that, assummg 
the publication declared on as a libel to be ope which would be 
mmayooe privileged, the circumstances which would render it il- 
legal, m other woras, the. malice which prompted it, must be ex- 
pressly averred. Upon this point the court wiU observe, in the first 
place, that in cases like the one supposed in argument thev hold, 
that in describing the act complained of the word ^^maliciously'' is not 
indispensable to characterize it ; diey think that the law is satisfied 
with words of equivalent power and import: thus, for instance, the 
word ^^felsely" has been held to be sufficiently expressive of a mali- 
cious intent, as will be seen in the authorities cited 2 Saund. 242 a, 
(note 2.) But the declaration in each of these cases chaiKCS the 
defendants, in terms, with maliciously and wickedly intending to 
injure the plaintiff in his character, and therebv to eflect Ins Removal 
from office, and the appointment of one of tne defendants in his 
stead ; and with that view, with having falsely, wickedly, and mali- 
ciously composed and pubhshed, and having caused to be composed 
and published, a fal^e, malicious, tod defamatory libel concerning 
the plaintiff, both as ^ citizen and an officer. The ^averments in 
these declarations appear to the court, in point of fact, to be full up 
to the reauirement insisted on, and to leave no^ room for the criticism 
attemptea with respect to them.. But the defence set up for the de- 
fendants in error reaches much farther and to results infilnitcly higher 

JANUARY TERM, 184B.' 986 

White «• Niebolls et aL 

ttanany thin^ dependent upon a Inere cri t i c im i upon foims of 
pleading. It mTolves this issue, so imiH>rtant to society, tu.: 
How fiu*, imder an alleged' right to examine into flie fitness and 
qualifications of men who are ei&er in office or are applicants fi>r 
office— or, how iar, under the obUeation of a supposed duty, to ar- 
raign such men either at tiie barof ttieir immediate superiors or fliat 
of pubUc opinion, ^eir reputation, their acts, dieir motives or fedinga 
may be assailed with impimity — ^how fiur that law, designed forme 
protection of all, has placed a certain class of citizens without tiie 
pale of its protection r The necessi^ for an exclusion like flus, it 
win be admitted by all, must indeed be yeiy strong to justify it : it 
win never be recognised for trivial reasons,, much less upon fliose 
that may be simulated or unworthy* If we look to flie position of 
men in common life, we see die law drawing providentiy around 
fhem eveiy security K)r their safe^ and their peace. It not only 
forbids the imputation to iEm individual of acts which are crin^iu 
and would suoject him to penal inffiction ; but, regarding man as a 
sympathetic and social, creature^ it will sometimes take cognisance 
of injuries aiSectinff him exclusively in that character. It will ao- 
cordiujgly rive a claim to redress to him who shall be charged widi 
what is cidculated to exclude him firom socitd mtercourse; as, for 
instance, with being the subject of an infection^ loathsome, and in- 
curable disease. Tne prinaple of the law always implying injuir, 
vdierever die object or efiect is die exposure of ^ accused to crimi- 
nal punishment or to degradation in society. These guardian pro- 
visions of the law, designed, as we have said, for the security amd 
peace; of persons in the ordinanr walks of private life, appear in some 
jespecis to be extended still fiulfaer in relation to persons invested 
widi official' trusts. - Thus it is said that words not otherwise, action- 
able, may form die basis of an action' when qK>ken of a party in re- 
ipect of Jsis office, profession, or 'business; Ayston v. Bhgrave, 
Strange, 617, and 2Ld* Raym. 1369. Again; in~ Lumby v. AD^ 
day, 1 Crompt. & Jarv. 301, where words are spoken of a person in 
an office of profit, which have a natural tendency b occasion (he loss 
of such office, or which impute misconduct in i^ tiiey are aCtipnAIe. 
And this principle, embraces all temporal oflkes of profit or trusty 
widiout limitation : 1 Starlde on Slander, 124. 

With regard to that q)ecie8 of defamatioa which is eflected try 
writing or.prmting, or by pictures- and signs, and which is techni- 
caDy denommated libdy although in general the rules applicaUe to 
it. are the same which appljr to verbal slandier, jet m other respect^ 
it is treated wiih a sterner rigbur than the latter; because it mus( 
have been effected with coolq^ss and deliberation, and must be more 
permanent and extensive in its operation than Words, which are fre* 
quently die oflipring of sudden gusts of passion, and soon may be 
buried in oblivion: Reic t;. Beau, 1 Ld. Raym. 414: It follows, 
thctefore, that actions may be maintained for ^efiunatory words pub- 


White V. Nieholls et %h 

lifihed in writing or in print, which would not have been actionable 
if spoken. Thus, to publish of a man in writing, that he had the 
itch and smelt of brimiBtone^ has been held to be a libel. Per Wil* 
mot, C. J., in Villers v. Mfousley, 2 Wils. 403. In Cropp v. Hil- 
ney, 3 Salk.^, Holt, C. J., thus lays doHtm the law^ << That scandal* 
oiis matter is not necessaiy to msdce a libel ; it is enough if tiie de- 
fendant induce a bad opinion to be had. of the plaintifi^ or make him 
contemptible or ridiculous.'^ And Bayley, J., declaims in McGrecor 
t;. Thwaites, 3 Bam. flt'Cres. 33, that '^ an action is maintainable 
for slander either written or printed, provided the tendency of it be 
to bring a man into hatred, contempt, or ridicule." To the same 
effect are the decisions in 6 Bing^. 409, The Archbishop of Tiiam 
V. Robeson; and m 4 Taunt. 356, Thorley t;. The Earl of Kerry. 
In eyery instance of slander, either verbsd or written, malice is an 
essential meredient : it must in either be expressly or substantial^ 
averred in ue pleadings ; and whenever thus substantially averrea, 
and the langu^e, either written or spoken, is proved as laid, the 
law will infer nmice until the proof, in tiie event <^ denial, be over- 
thrown,^ or the lanmage itself be satisfactorily explained. The>de- 
fence of the defencumts in error, the defendants likewise in the Circuit 
Court, is rested upon grounds forming, it is said, an established ex- 
ception to the rule in ordinary actions for libel ; grounds on which 
tiie decision of the Circuit Court is defended in naving excluded 
firom the jury, under the dechotitions in these cases, me writing 
charged in them as libellous. These writings were offered as evi- 
dence of express malice in the defendants. The exception relied 
on belongs to a class which, in the elementeoy treatises, and in the 
decisions ui>on libel and slander, have been1deiK)minated privileged 
communications or publications. We will consider, in the first place, 
the peculiar character, of such communications, and tiie extent of 
their infiueiice upon words or writings as to which, apart firom that 
character, the law will iinply malice; Secondly, we will examine 
the burden or obligation unused hj the law upon the party com- 

Elainiiiig to r^ove presumptions which might seem to be justified 
y the occasion of such communications, and to devdope their true 
nature. And lastly^ we will compare the requirements of the law 
with the character of the publication before us, and with the pro- 
ceeding of the Circuit Court in reference thereto. The exceptions 
found in the treatises and decisions before alluded to are such as tiie 
following: 1. Whenever the author and publisher of the alleged 
slander acted in the bona fide discharge of a public or private duty, 
legal or moral ; or in tiie prosecutioii of his 9wn ri^ts'or interests. 
For example, words spoiren in confidence and friendship, as a cau- 
tion ; or a letter written confidentially to persons who employed A. 
as a solicitor, conveying charges injurious to his professional cha- 
racter in the management of certam concerns which they had intrust- 
ed to him, and m which the writer of the letter was also interested. 


Whitti «.. NiehoUt et aL 

2« Any dung said or written by a master in giving tbe character of 
a aervant who has been in boa employment 3. Words naed in the 
coorae of a legal or judicial proceeding, however hard diey may 
bearnpon tbe party of whom they are used. 4. Publications duly 
made m the ordinanr mode of paniamentary proceedinga^'ais a peti- 
tion printed and deuTered to the members of a committee appoint* 
ed by the House of Commons to hear and examine grieyances. 

But the term ''ezoqfyticms," ais qpplied to caaea like those iust 
ennmerated/could never be interpreted to mean that there is a class 
of aetors or transactions placed above the cognisance of the law, 
absolved finom the commands of justice. It is difficult to conceive 
how, in society where rights and duties are relative and mutual, 
fliere can be tolerated those who are privileged to do injury l^gAus 
toluH; and still more difficult to imagme, how such aprinlese could 
be instituted or tolerated upon tiie principle& of social good. The 
privilege .^poken of in the nooks nimld, in our opinion, be taken 
with, strong and weD-defined qualifications. It properlv rignifies 
this, and nothin^more. That tiie eiCcepted instances snail so fa^ 
diange die ordmary rule with respect to slanderous or libellous 
matter, as to remove the regular and usual presumption (rf malice, 
and to make it incumbent on the party complaining to ahow malice, 
eitiier by ihH construction of the spoken or written matter, or by 
fiBKSts and circamstances connected with that matter, or with the 
shnation ct die parties, adequate to autborize the conclusion* Thus 
in tke case of Codmyne i;. Hoddds8on,-6 Car. & Pk^^lS, we find 
it declared hj Parke, Baron, ^^Tiiat evjsry wilful and unauthorixed 
publication mjurious to the character cSt anotiier is a libel ; but 
where the writer W?^ng on any duty legal or moral, towards the 
person to whom he writes^ or is bound by his situation to protect 
the interests of such peraon, ths^t which ne writes under sudi cir- 
cumstances is a privileged communication, unless the writer be 
actuated by malice.'' So in Wiight t;. Woodgate, 2 Crompton, 
Meeson It Rosco^, 573, it is said, ^<a privileged communication 
means nothing mdre tiian that the occasion of inaldn^ it rebuts the 
jnima^acie inference of malice arising firbin the pubhcation of mat- 
ter prejudicial to the character of tl^e plaintifi*, and tiirows i^pon him 
th« onus of provine malice in &ct ; but not of proving it by extrin- 
sic evidence only ; Be has still a ri^t to require that th<p alleged libel 
itself flhall be submitted to the jury, that th^ ma^ judge whether 
there is evidence of malice on the face of it" ui re^rd to the 
second example mentioned, viz., that of a master giving the Qha- 
racter of a servant, althoudi this is a privileged communication, it 
IS said by Lord Mansfiela in Weatherstone v. Hawkins, 1 T. R. 
110, and by Parke, J., in Child t;. Affleck, 9 Bam. k Cres. 406, 
that if express malice be diown, (be master will not be excused* 
And ^e result of Aese authorities, with many others whidi bear upon 
tins head is this, tfa^t if the conduct of the defendant entirdy conr 


White V. Nieholls et al. 

sists of an answer to an inquiry^ the absence of malice will be pre- 
sumed, unless the plaintin produces evidence of malice; but if a 
master unasked, and officioiudj, gives a bad diaracter to a servant, 
or if his answer be attended with circimistances from which malice 
may be inferred. It wjll be a (question for the jury to determine, 
whether he acted bona fide or with malice. 

With req>ect to words used in a course of judicial proceeding, 
ft has been ruled that they are protected by the occasion, and can- 
not form the foundation of an action of dander without proof of 
express malice ; for it is said that it. would be matter of public 
inconvemence, and would deter persons from preferring their com- 
plaints against pJSfenders, if woras spoken in the course of their 
giving or preferring their complaint should be deemed actionable ; 
per Lord Eldon in Johnson v. Evans, 3 Esp. 32 : and in the case 
of Hodesoh v. Scarlett, 1 Bam. & Aid. 247, it is said by Holrpyd, 
J., speaking of the words of counsel in the argument of a cause, 
«<If they be fidr comments upon the evidence, and relevant to the 
matter in issue, then unless malice be shown, die occasion justifies 
them. If, however, it be proved that thev were not spoken h(ma 
fide^ or express malice be shbvm, then they maV be actionable.'' 
Abbot, J., m the same case remarks, ^'*I am of opinion that no 
action can 'be. maintained unless it can be shown that die counsd 
availed himself of his situation maliciously to utter words wholly 
tmjustifiable." In relation to proceedings in courts of justice, it 
has. been strongly questioned whether, under all circumstances, a 
publication of a m]l report of such proceedings will constitute a de- 
fence in an action for a libel. In the case of Curry v. Walter, 
1 Bos. & Pul. 526, it was held that a true report of what passed in 
a court of justice was hot actionable. The same was said by Lord 
EQenboroudi in Rex t?« Fi^J^ ^ Cainp. 563; but this same jud^e 
in Rex v. Crevy, 1 M. fit S. 273, and Baylejr, J., in Bex v. Carlisle, 
dissented frt>m ^is doctrine as laid do^H in Currv t;. Walter, ob- 
serving diat it must be understood with very &;reat mnitations ; , and 
by'Tindal, C. J., in the case of Delegal t;. Highly, 3 Bing. N. C« 
690, it is said ^^ to be an established principle upon which the pri- 
vQege of publishing the report- of any judicial proceeding is admit- 
ted to rest, diat such report must be strictly confined to the actual 
proceedings in court, and must contaiA no de&matoiy observations 
or commits from any quarter whatsoever in addition to what forms 
strictly and properly the legal proceedings." So a publication of 
die result of me evidence is hot pritile^d ; the evidence itself 
must be published. Neither is a publication of a counsel's speech 
unaccompanied by the evidence. Lewis v. Walter, 4 Barn^A Aid. 
606; Flint V. Pike. Ibid. 473. 

Publications duW made in the otdinaiy course 6[ parliamentaiy 
proceedings have been ruled to be ppvileged^ and therefore not 
actionable. A& where a fidse and scandalous li}yel was contained in 

JANUARY T ERM, 1846. 980 

White •. Nieholls et %l 

a petitioii which the defendant caused to be printed and delivered to 
the members of the committee appobted by the House of Commons 
to hear and examine grievancesi it was held not to be actionable. 
Such appears to be the doctrine ruled in Lake v. Kin^, 1 Saund. 
163 ; and the reason there assigned for this' doctrine is, that die 
libel was in the order and course of proceedings in the Parliament, 
which is a court The above case does certamly put the example 
of a privileged communication more broadly than it has been done 
by other aumorities, and it seems difficult, from its very comprehen* 
sive language, to avoid the conclusion, that there might be instances 
of privifege which could not be reached even by the clearest proof 
of express malice.^ The point, however, appearing to be ruled by 
that case, is so much in conflict with the current of authorities going^ 
to maintain the position that express malide cannot be shielded by 
any judicial forms, that the wei^t and number of these audiorities 
diould not, it is thought, be controUed and even destroyed by die 
influence of a single and seemingly anomalous decision. The de« 
cision of Lake v. King should rather yield to the concurring opinions 
of numerous and enli^tened minds^ resting as they do upon obvious 

Erinciples of reason and justice. The exposition of the Endidi 
iw of libel given by Chancellor Kent in the second volume of his 
Commentaries, pait 4th, p. 22y we regard as strictlv coincident with 
reason as it is witl^ the modem adjudications of uie courts. That 
law is stated by Chancellor Kent, citing particularly the authority of 
Best, J., b the case of Fairman v. Ives, 5 Bam. Sl Aid. 642, to the 
following effect: ^^That petitions to the Idn^, or to parliament, or 
to the secretary of war, for redress of anv gnevance, are privileged 
communications, and not actionable libels, provided the privilege 
is not abused. But if it appear that Ae, communication was made 
maliciously, and without probable cause, the pretext under which it 
was made aggravates the case, and an action lies." It is the un* 
doubted right we know of everv citizen to institute criminal prose- 
cutions, or to exhibit criminal. charges before the courts of the 
country ; and such prosecutions are as much the regular and ap- 
proprlate modes of proceeding as the petition is the appropriate 
proceeding before parliament— yet it never was denied, ^at a pro- 
secution ynih malice, and without probable cause, was just founda- 
tion^ of an actbn, diough such prosecution was instituted in the 
appropriate court, and carried on with every formality Imown to 
the law. The parliament, it is said, is a court, and it is difficult to 

Crceive how malicious and groundless prosecutions before it can 
placed on a ^und of greater impunity than they can occupv in 
another appropriate forum. The case or Lake i;. Kinff, therefore, 
interpreted by the known prmciples of the law of ubel, wouM 
extend die privilege of thedefendant no farther tnan to require as 
to him proof of actual malice. A different interpretation would 
establish, as to sudi a case, a rule that is perfectly anomalous, and 
Vol. m.— 37 2 B 


White V. NichoUs et al. 

depending upon no reason ^which is applicable to other cases of pri- 

By able judges of our own country, the law of libel has been ex- 

Eunded in perfect concurrence with Ae doctrine p;iyen by Chancel- 
- Kent. Thus, in the case of the Commonwealth v. Clap, 4 Mass. 
Rep. 169y it is said by Parsons^ C. J., '* that a man may dpply by 
complaint to the legislature to remove an unworthy office ; and if. 
the complaint be true, and made with honest intentions df giving 
information, and not maliciously, or with intent to defame, the cpm- 
plaint will not be a libel. And when any- man shall consent to be 
a candidatejfor a public office conferred by the election of the peo- 
ple^ he must be considered as puttipg bis d^aracter in issue, so far 
as it may respect his fitness and qu^cation^ for the office; and 
publications of the truth on this subject, with ike honest intention 
of informing the people, are not a lioel ; ifor it would be unreason- 
able to conclude, that the publication of truths, which it is tiie in- 
terest of the people to know, should be an offence against their 
laws. For the same reason, the publication of falsehood and 
calumny against public officers, or candidates for public offices, is an 
offence dangerous to the people, and deserves punishment, because 
the people may be deceived, and reject their best citizens, to their 
great injury, ana, it may be,. to the loss of their liberties. The 
publication of a libel maliciously, and; with intent to defieune. 
whether it be true or not, is clearly an offence against law on sound 
principles, &c." 

In ibe case of BodweH v. Os^od, 3 Pick. Rep. 379, it was ruled, 
that a false complaint, made with express mahce, or without pro- 
bable cause, to a body having competent authority to redress the 
grievance complained of, maybe the subject of an Action for.a libel, 
and the Question of malice is to be determined by the juiy. The 
court in this last case say, p. 384, '^ R maybe admitted^ that if the 
defendant had proceeded with honest intentiois, believmg &e ac- 
cusation to be true, al&ougb in fitct it Was not, he would be entitled 
to protection, and that the occadipn of the publicfiition would pre- 
vent the legal inference of malice.'' The court proceed further to 
remark, p. 386: <^it has been argued that the juty should have 
been inis^iicted, that the appUcaticm to a jbribunal competent to re- 
dress die supposed grievance was jirimd^/tK^re evidence that the 
defendant acted fidrly, and that the burden of proof was on the 
plaintiff to remove &e presumption. The judge was not reouested 
thus to instruct the jury. He did, however,- instruct them tnat the 
burden of proqf was on the plaitttiff to satisfy &em tb^t the libel 
was malicious, and that if the plaintiff did not prove die malice 
beyond any reasonable doubt, Hmt doubt diould be in favourof the 

We have &us taken a vi^w of the aiithorities wmch treat of the 
doctrines of slander mi libel, and have considered dxose authoriti^ 


' '■ White v. Nieholls et aL 

^ ^^ ■ - I -L 1 _ ■ ' ' I ■ I 

particularly with reference to the distinction they establish between 
ordinary instances of slander, written and unwritten, ai^d those 
which have been styled privileged communications ; the peculiar 
duuracter of which is said to. exempt them from inferences which the 
law has created with respect to those cases that do not partake of 
that character. Our examination, extended as it may seem to have 
been, lias been called for by the importance of a subject most inti- 
mately connected with the rights and happiness of individuals, as it 
is with the quiet and good order of society. The investigation has 
conducted us to the following conclusions, which we propound as 
Ae law applicable thereto. 1. 'Fhat every publication, either by 
writing, printing, or pictures, which charges upon or imputes to 
any person that which renders him liable to punishment, or which 
is calculated to make him infamous, or odious, or ridiculous, is 
prima fadt a libel, and implies malice in the author and publidier 
towards the pelrson concerning whom such publication is made. 
Proof of mahce, therefore, in the cases just described, can never 
b.e required of the party complaining beyond the proof of the pub- 
lication itself: justification, excuse, or extenuation, if either can be 
diown, must proceed from the defendant. 2. That the description 
of cases recognised as privileged communications, must be under- 
stood as exceptions to this rule, and as beins; founded upon some 
apparentiy recognised obligation or motive, legal, moral, or social, 
which may fairly be presumed to have led to the publication, and 
therefore pmux fac\e relieves it from that just implication front 
whichthe gencrafrule of the law is deduced. The rule of evidencCi 
as to such cases, is acconjingly so far changed as to impose it on 
&e plaintiff to remove those presumptions flowing from the seeming 
obligations and situations of the parties, and to require of him to 
brin^ home to the defendant the existence of malice as the true 
motive of his conduct. Beyond this extent no presumption can be 
permitted to operate, much less be made to sanctify the indulgence 
erf malice, iowever wicked, however express, under the protection 
of legal forms. We conclude then tiiat malice may be proved, 
thou^ alleged to l^ve existed in the proceedings before a court, 
or legidative body, or any other tribunal or authority, although such 
court, legislative body, or other tribunal, may have been the appro- 
priate authority for redressing the grievance represented to it ; and 
"that proof of express malice in any written publication, petition, or 
proceeding, addressed to such tribunal, will render that publication, 
petition, or proceeding, libellous in its disiracter, and actionable, 
and will subject the autiior and publisher thereof to all the conse- 
miences of libel. And we think that in every case of a proceeding 
like those just enumerated, falsehood and the absence of probable 
cause will amount to proof of malice. 

The next and the only remainb^ question necessary to be con- 
sidered in these cases, is that which relates to tHe rulings of the 


Ex parte Christy. 

court below excluding tbe publication declared upon as a libel from 
going to the jury in connection with other evidence to esti^lish the 
existence of malice. We forbear any remark upon the intrinsic 
character of the injury complained of, or upon the extent to whidi 
it may have been made out. These are matters not properly before 
us. But if ihe publication declared upon was to be regarded as an 
instance of privileged publications, malice was an indispensable 
diaracteristic which the plaintiff would have been bound to establish 
in relation to it. The juiy, and the juiy alone, were to detennine 
whether this malice did or did not mark the publication. ^ It would 
app^ difficult (t priori to imagine how it would be possible to ap- 
preciate a tact whust that fact was kept entirely concealed and out 
of view. This question, however, need not at the present time be 
reasoned by the court; it has, by numerous adjudications, been 
I^aced beyond doubt or controversy. Indeed, m the very many 
cases that are applicable to this question, they almost without an 
exce{)tion concur in the rule, that me question of maGce is to be 
submitted to the jury upon the face of the libel or publication itself. 
We refer for this position, to Wright v. Woodgate, 2 Crompton, 
Mees. & Rqs. 573 ; to Fairman v. Ives, 5 Bam. & Aid. 642 ; Rob- 
inson t;. May, 2 Smith, 3 ; Flint v. Pike, 4 Bam. & Cres. 484, per 
latdedale, J.; lb. 247, Bromage t;'. rrosser; Blake v. Pilford, 
1 Mood. & Rob. 198 ; Parmeter v. Coupland, 6 Mees. & Welby, 
105 ; Thomson if. Shackell, 1 Moo. & MaL 187. Other cases 
might be adduced to the same point. 

Upon the whole we consider the opinion of 4he Circuit Court, in 
the several instmctions given by it in these cases, to be erroneous. 
We therefore adjudge that its- decision be reversed ; that these 
causes be remanded to the said court, and that a venire facias de 
novo be awarded to tiy them in conformity with the principles herein 
laid down. 

Ex' Paste, The Cmr Bams or New Oklbamb in the mattee or Wix^ 
UAM Cbeibtv, Absiomeb or Danij^. T. Waldsn, a Bankrupt; 

This court has bo revising power over the decrees of the District Cpurt sitting 
in hmkmptey; nor is it authorised to issue a writ of prohihition to it in anj 
case except where (he District Coart is proceeding as a court of admiralty 
and maritime jurisdiction. 

The District Court, when sittinf^ in baakruplcj, has jurisdiction over liens and 
mortgages existing upon the property of a bankrupt, iso as to inquire into 
their T&dity and extent, and grant the same relief which the state eourts 
might or ought to grant. 

The control of the District Court over procdedinge in the state pourti opon tueh 
liens, is exercised, not over the state oonrte themselves, but upon the parties, 
through an injunction or.olher appropriate proceeding in equity. 

JANUABT TERitft 1846. 

Bx parte Christj. 

The design of the Banknipt Act was to seeare a prompt and effeetnal admiai«^ 

tration of the estate of all bankmpts, worked ont bjr the eonrts of the'United 

Btates, without the assiftance of state tribunals. 
Hie phrase in. the 6th section, ''any creditor or creditors who shall claim wmy 

debt or demand under the bankraptcy,** does not' mean only such crsdilon 

who come in and pro?e their debts, but all creditors who have a present sob- 

sisting claim npon the bankropt's estate, whether they have a secnrily or 

mortgage thereror or not. 
Such creditors hare a rif^ht to ask that the property mortgaged duUi be.iokl» 

and the proceeds i^hed towards the payment of their debts) and the ma> 

signee, on the other hand, may contest their claims. 
Id the case of a contested claim, the District Court has [arisdiction, if resort be 

had' to a formal bill in equity or other plenary proceedings and aleo jurisdie- 

tion to proceed summarily. 

Thi8 was a motion on, behalf of the Citjr Bank of New Orleans, 
for a prohibitioni to be issued to the Distnct Court of the Unitea 
States for the distnct of Louisiana. 

Hie suggestion for tiie prohilntion stated the following as fiurts in 
die case: 

First That Daniel T. Walden, of the city of New Orleans, on the 
S7th July, 1839, and on the 17 ^ day of Auj^st, 1839, executed 
two several mortgages to the City Baink of New Odean^ on a oer* 
tain^itation, ami on lots of land in said state, to secure payment 
of ^00,000 borrowed of said bank; which mortgages were duhr 
recorded, and in all respects good and yalid, and created a gpoo^ 
legal, and equitable lien on the property mortgiured for payment of 
saM debt That, on or about 20th October, 1840, Walden insti- 
tuted suit in the state District Court, to set aade said mortgages* for 
the same causes, substantially, as William Christy ( Walden's suDfe* 
quent assignee in bankruptcy) has presented by lib petition and 
amended petition in the Distnct Court of the Umted StBites at New 
Orleans, exercising summary jurisdiction in bankruptcy, to set aside 
the stole mortgages, as per certified copy of die proceedings in tfa^ 
District Court of the Umted States herewith annexed ; and the state 
court, on appeal, decided finally against Walden^s complaint, and 
sustained the mortflnges. 

Second. That, werward, the bank proceeded to foreclose its mo^- 
ffages in die state court; and thereupon, on 17th May, 1842, an or- 
oer of seizure- and sale was made, and an actual seizure of die pro- 
perhr »ecuted on 19di May, 1842. 

lliird. That, on VMi June, 1842, die said Walden filed his peti-> 
tion.for the beiMt of ^ bankrupt act, in the District Court of &• 
United States at New Orleans, and on die 18di July, 1842, said 
court decreed him to be a bankrupt 

Fourdh That, after Walden filed his petition, and before decreed 
a bankrupt, viz., on 27th June, 1842, he applied to the said District 
Court oi the United States for its injunction to stay the sale ordered 
in the state court of the mortgaged premises; setting forth, an 
grounds dmefon the same &cts, substantially, as subsequendy again 



Ez parte Cbristy. 

set forth by Christy, his assignee, m his petitions aforesaid. Alter 
fiill hearing of said bill, the court refused the injunction ; and there- 
after the premises seized were duly sold, with evenr legal requisite 
and formsdity, in execution of the prerious orders of the state court, 
and the City Bank became the purchasers. 

Fifth. That thersaid bank has, iii no wise, presented or proved its 
claim against Walden, in the bankrupt court, but pursued the said 
mortgage claim adversely in the state court, relying on its lien by 
the state. law, and the proviso in the bankrupt act, saving such lien 
from its operation. 

Sixth, liiat the matter in diq>ute exceeds two thousand dollars in 

Seventh. That the said Christy, assignee, Ax., knowing all the 
premises, but contriving to impair {he lien of the bank by the mort- 
-gaees aforesaid, contrary to the saving clause of the bankrupt act, is 
endeavouring, by his petition and supplemental petition, to subject 
aU the previous proceedings of the state court upon the mortga^ to 
review and revision in the District Court of the United State&L bv its 
summaiT process in bankruptcy. And the said Christy and VETal- 
den, and the Hon. Theodore H. McCaleb, judge of the said District 
Court of the United States, have wrongftdly and vexatiously forced 
the said bank- to appear in said court^ upon its summary process, ta 
answer said Christy's petition. And dioug^ the bank has objected, 
bv plea, to the summary jurisdiction of the court over the matters 
amiesflid^ yet the court atmeres — ^hath overruled the plea — and per- 
sist, by its summary process, to proceed with th6 cause, to the em* 
barrassmeiitt of the oank, and to the deprivation of all redress by 

Jn addition to the foregoins statement iGled by the counsel ir sup- 
port of the motion for a prohioition, it mav be proper to state that, 

On the 8th of October, 1842, Christy med the petition mentioned 
in the seventh proposition just quoted. It'r^itea that Walden, the 
bankrupt, was, at the time of filing his schedule and surrender, 
the owner of a large amount of real estate ; that the bank claimed to 
have a mortgage upon it ; that the bank caused it to be sold and pos- 
session delivered ; that die sale was void, because the application of 
Walden operates as a stay of proceeding; that the property was ofr 
fared for cnle in block, though composed of twenty diflerent stores' 
or buildings, and for c^sh; that the mortgage debt was not justly 
due^ but void on account of usury ; and prayed that the sale might 
be declared void, or if adjudged valid, that the amount thereof should 
be paid over to die petitioner, to be distributed according to law. 

On the 31sr of October, 1842, the bank filed a plea to the juris- 
diction of the court, with other matters in defence. 

On the 17th of February, 1843, the questions raised by the an- 
swer of the bank were adjourned to the Circuit Court of the United 

JANUARY TERM, 1846. 905 

Ex parte Christjr. 

At April term, 1843, the Circuit Court returned the following 
answers : — 

<< In answer to the questions adjourned into this court by die Dis- 
trict Court for die said district, it is ordered that the following an^ 
swers be certified to the District Court in bankruptcy, as the opinion 
of die court thereupon : 

*^ First. That the said District Court has, under the statute of 
bankruptcy, full and ample jurisdiction of all auestbns arising under 
the petition of William Uhnsty, assignee of Walden, to tiy , adjudge, 
decree, and determine the same between the parties thereto. 

<^ Secondly. That the sale made of the mortgaged proper^, under 
the seizure and sale ordered by the District Court of the state of 
Louiriana, is void, and that the District Court of the United States 
diould by its decree declare it void in the suit ; and diat said last- 
mentioned court has full power and authority to try and determine 
the validity of said mortgages, and if proved upon the trial void 
according to the laws of Louisiana, to make a decree accordingly, 
and^order a sale of the property therein contained for the benefit of 
the several creditors of the baiuarupt; but if upon proof said mort- 
gages shall be sustained and adjudged vaUd, a decree should be 
rendered in fiivour of the mortgagees, condemning to sale all their 
interests, rij^ts, and tide therein, and all the interest, right, and tide 
of die bankrupt and all the general creditors, in the hands of the 
assignee, and the ririits and tide of the assignee also ; and by the order 
of sale die marshsd be directed to pa^ over to the mortgagees, after 
deducting tlve per cent for his commissions and all the legal, costs 
of the suit, the amount of their claim, if the proceeds of the sale 
amount to "BO much, and the balance, if any, to pay over to th^ 
as9ignee ; and that by such decree the assignee be ordered to nUike 
proper title and conveyance to the purcluiser or purdiasers, upon 
me full payment of the purchase money and a reasonable compensa- 
tion to &e assignee for making such conveyance, to be determined 
and setded by die judge of the District Court, should the purchaser 
or purchasers and the assignee disagree as to the amount. 

<< Thirdly. The second and alternative )3rayer in the petition of 
the assignee,- asking the payment tohim of the whole amount of the 
pfoceedb of the former sale of the mortgaged property, bebff incon- 
sistent with the opinion of the court in the second pomt, w2l there* 
fore be disregarded on the trial by- the District Court 

<< J. McKlNLET, 
** Associate Justice of the Sapreme Court U.S.** 

Afterwards, in 1843, an amended petition was filed by Christy, 
alleging, amongst other things, that the bank claimed to be a creditor 
of Walden, and ^' in that capacity had become a party to the said 
proceedings in bankruptcy," &c., &c. 

In December, 1843, the bank prayed oyer of the time, place. 


£z parte Christy. 

manner, and form, where, how, and when it became a partjr to the 
proceedings in bankruptcy. 

The court havinfi; granted the prayer for oyer, Christy, on the 
23d of January, 1844, filed the followmg: 

^< That the said Ci^ Bank became parties to the proceedings in 
bankruptcy of the said Walden, first, by the operation of law, they 
beine at me time of his bankruptcy mortgage creditors of die said 
Walden, and placed upon his schedule as such ; second, by their 
own act, having filed a petition in this honourable court on the 5di 
September, 18&, praying that the deman4 of the assignee for die 
pos^onement of the sale ef certain properties be disregarded, that 
their privileges be recoenised, and that said properties be sold under 
an order of this court mr cash; third, that an attempt was made by 
the said bank to withdraw said petition and prayer of 6th September, 
1842, but a discontinuance of the same was opposed by M. W. 
Hofiman and L. C. Duncan, creditors of said bankrupt, and parties 
interested, hj reason of which said opposition the legal effects of 
said application, mdde by the City Bank as aforesaid, to this honour- 
able court remain in full force. 

<^ In consideration of all which and the documents herewith filed, 
your petitioner prays, that said City Bank be compelled to answer 
to the merits of the original and supplemental petition in this case 
filed, without further delay." 

On the 10th of February, 1844, the bank filed its answer, denying 
that it had erer proved its debt, or otherwise subjected itself in any 
manner to the summary jurisdiction of the District Court sitting as 
a court of bankniptcy ; but, on the contrary, that it had prosecuted 
its remedy in the state courts of Louisiana, and adding the following^ : 

^* And so these respondents and defendants say and insist, that this 
honourable court, sitting as a bankrupt court, and holding summary 
jurisdiction in matters of bankruptcy under and by virtue of said 
act, ought not to have and to take cognisance of the several matters 
and things in the said petition and supplemental petition contained: 
forasmuch as all juristliction over the sameMs bv law vested in and 
does of right belong to the Circuit Court of the United States for the 
eastern district of Louisiana, holding jurisdiction in equity, and pro- 
ceeding according to the principles and forms of courts of chancery 
as prescribed by Taw and by rules tod orders of the Supreme Court 
of the United States, or to the District Court of the United States for 
the said district, proceeding in the same manner, and vested with 
concurrent jurisdiction over all suits at law or in equity wHich may 
be brought by the assignee* of any bankrupt against any person 
claiming an adverse interest ; which said courts are competent to 
entertain the suit of the petitioner and grant him the relief of prayer 
for, if by law he is entitled to the same, and not this court ; and 
forasmuch as this honourable court, sitting as a bankrupt court, and 
deciding in a summary manner in matters of bankruptcy, is wholly 


Bz parte Ciiritty. 

without jurisdiction in the premises, these respondents and defend- 
ants submit to the judgment of this honourable court, whedier they 
diall be held to make any further or oAer answer to the serend 
matters and things in the said petition and supplemental petition 
contained, and pray to be hence dismissed, wim tfadr reasonable 
costs, &c.** 

An a|;reement of counsel was filed in the court bebw rdatire to 
the petition of the bank and its discontinuance spoken of in the 
oyer of Christy, as above set forth. The agreement stated that 
the discontinuance was ordered in open co^rt by the coiinsel of 
the bank, and the proceeding of the court showed that a rule to 
show cause why the discontmuance should not be set iside was 

This was the position of the case in the court below. 

The motion for a prohibition was sustained by Wilde and Hender^ 
ton, and opposed by Crittenden. The Reporter has no notes of the 
arguments of Hendertan dudCrittenden^ and from that of Wilde only 
extracts can be given. 

Wilde referred to the seven facts stated in the beginning of this 
report, and then said, the questions of law insisted on by me sug- 
gestion are, 

1. That the Bankrupt Act contemplates two kinds of jurisdiction: 
one over parties claimmg under the bankruptcy, the odier over par- 
ties claimuiff adversely to it ; the one summary, the other formalj 
the one exclusive in the District Court exercismg summary jurisdic-" 
tion in matters of bankruptcy, without, appeal, as defined by section 
6th ; ibe other a concurrent jurisdiction m both District and Circuit 
Courts for or against parties claiming an adverse interest, acconUns; 
to the provisidns of section 8th, which is not summaiy, but formal, 
to be exercised according to the rules and forms of chancery or 
common law, and subject to review in this court by appeal or writ 
of error under the general provisions of the laws heretofore passed 
regulating writs of error ana appeals. 

2. That the rules of said banlcrupt court resulatin^ its summary 
process, in pursuance of which this proceeding by Chns^ is assumed 
to be instituted and entertained, are in viomtion of the Bankrupt 
Act — ^which rules are herewith exhibited. 

The reasons why this court should interpose to restram the Dis- 
trict Court fix)m furdier proceedm^ in the matter are two : 

1. Because said court, proceedmg summarily on petition, as in a 
matter of bankruptcy, hais no lawful cognisance and jurisdiction of 
&e matter. 

2. Because hj permitting said court so to proceed and decide, 
(from vrhidk decision no appeal would lie,) would be to permit said 
district and inferior court to inqpair tiie legitimate powers of this 

Vol. ra.— 38 


Ex parte Christy. 

court in its appellate jurisdiction, and to deprive the bank of its 
ri^t to invoke the supervisory powers of this court bjr appeal. 

After stating the general principles on which prohibitions issue, 
which were cases where an appeal does not lie, and citing a num- 
ber of authorities, Mr. Wilde continued — . 

For the present, th^, we are to consider whether the District 
Court, sitting as a bankrupt court of exclusive and summaiy juris- 
diction of afl matters arising under the bankruptcy, and deciding 
without appeal, has rightful and lawful cognisance of the matters it 
is proceeding to investigate and adjudicate upon in this case. 

Here are lawful mort^ges, made and recorded according to the 
laws of Louisiana, bearing date three years before petition of the 
mortgagor to be declared a voluntaiy bankrupt. 

Here is a mortgagee who has not proved his debt under the bank- 
ruptcy, but has rested on this state lien ; prosecuting that lien to 
i'udgioent of foreclosure upon his said mortgages in the state court, 
lefore the petition in banlmiptcy. 

Here is an order of seizure and sale, and an actual levy on the 
mortgaged premises by the sheriff one month before the petition oT 
the mortgagor for the benefit of the Bankrupt Act 

Under this levy or seizure the mortgagee proceeded to sell the 
mortgaged premises, after appraisement, advertisement, and all other 
legal pre-requisites, in several distinct lots, according to their sepa- 
rate enumeration . in the mortgajges and appraisement, and in as 
minute divisions as the nature of the property would admit or the 
law allow. 

And the substantial que^on before this court is, whether he wha 
has never proved his debt, never come in under the bankruptcy, can 
be dra^d into the District Court, sitting as a bankrupt court, and 
exercising summary jurisdiction, without appeal ; his writ of seizure 
and sale annulled, the judgment of the state court vacated, the sale 
set aside, and his mortgagies declared null and void, thoudi the 
Supreme Court of the state have declared them good and vaEd. 

The mere statement of such a (question would ^eem to be enough 
to decide it ; but its very simplicity leads to the suspicion of error, 
and therefore we will verify it step bv step. 

First then, the proceedings in bainkruptcy, of which we produce 
an authenticated copy, and the clerk's certificate, show exclusively 
that the Citjr Bank has never proved its debt apdnst Walden, See 
transcript of the petition,. schedule, &c., in bankruptcy — clerk's cer- 
tificate, last page. 

We hold it to be clear law, that a party holding a mortgage can- 
not be compelled to prove his debt, or come in under the commis- 
sion ; and we hold that unless he does so, the District Court, exer- 
cising the powers of a bankrupt court, and proceeding summarily 
without appeal, has no jurisdiction over him. 

^^ If a creditor has a security or lien, he is not compellable to 

JANUARY TERM, 1845. «0 

Ex parte Christy. 

come in under the comimssion ; be may elect to stand out, and reljT 
on his security or lien." 

^^ But if he does prove, he relinqnishes his security for the benefit 
of all." CuUen on BankruDtcy, 145, 149. 

If this be the case in England, d fortiori^ it is so under our late 
bankrupt act, which contains a clause saying state liens. Section 
2, p. 16, Bankrupt Act : — 

^^ Nothing in this act contained shall be construed to annul, de- 
stroy, or impair any Jiens, mortgages, or other securities or proper- 
ties, real or personal, which may be valid by the laws of die states 

In the decisions under this law, althourii ihere has been a diver- 
aty of opinion as to what constituted a hen, there has been none 
that a mortgafi;e was one. 

There has been no diveraty of opinion on the point whether a 
mortgaged creditor could be compelled to prove or not 

There has been some difierence of opmion how, and in what 
court, and by what process or form of proceeding, ttie state lien is 
to be saved ; but all a^ree that saved it must be. 

On the score of aumority, it cannot be expected we should do 
more than produce the decisions of circuit or district judges. These 
questions have not yet been adjudicated in this court. 

We rely on the following cases, decided by iudges of this court 
on their curcuits, or by district judges, respectaole for learning and 

The dedsion of Mr. Justice Baldwin m the matter of Kerlb, a 
bankrupt, reported In the United States Gazette, of Philadelphia, of 
26t^ October, 1843. 

The decision of Mr. Justice Story, in the case of MitcheU, as* 

3' ^ee of Roper, t^. Winslow and o^ers, in the Circuit Court of 
aine, reported in the Law Reporter of Boston, for December^ 
1843, pp. 347, 860. 

Mr. Justice McLean's decision in the case of N. C. McLean, 
asagnee in bankruptcy, t^. The Lafayette Bank, J. S. Buckingham 
and others ; to be found in the Western Law Journal for October, 
1843, p. 15. 

Mr. Justice McLean's decision in the case of N. C. McLean, 
assignee, v. James F. Meline ; Western Law Journal for November; 
18fi, p. 51. 

Mr. Justice Story's decision in the case of Muggridge, 5 Law 
Rd). 357 ; in Ex parte Cook, 5 Law Rep. 444 ; Ex parte Newhall, 
6 Law Rep. 308 ; in Button v. Freeman, 6 Law Rep. 452. 

Mr. Justice Thompson's decision in Houghton v. Eustis, 5 Law 
Rep. 506. 

Judge Prentiss's (of Vermont) opinion in Ex parte Spear, 5 Law 
Rep. 399; and Ex parte Gomstock, 5 Law Rep. 165. 


Ex parte Christy. 

Judge Conlding'fl (of New York) opmion in Ex parte Allen, 
B Law Rep. 368. 

Judge Monroe's (of Kentucky) opinion in Niles's Rerister, 5th 
'NoYeml)er) 1842 ; and those of kwin, Randall, and Gilchrist, ib. 

The^e cases, it is humbly submitted, establish the doctrine for 
which the defioidants. contend, namely: that the state lien in this 
case was properly and rightfully enforced under the state law and 
process. Penn. Law Journal for November, 1842, p. 302, Ex parte 
Dudley, Judge Randall and the late Judge Baldwin's decisions; 
Penn. Law Journal, April, 1844, p. 246, Itege v. Hosier, District 
Court of Philadelphia; Law Reporter for October^ 1844, p. 281, 
Judge ConUing's decision on Briggs v. Stephens, (proving surrenders 
lien ;) Western Law Journal, Aprfl, 1844, Judge McLean's decision 
in McLean.v. Rockey,p. 302 ; Law Reporter, July, 1844, Mr. Justice 
Story's decision in Bellows and Peck, United States Circuit Court 
of New Hampshire, pp. 126, 127 ; Law Re^rter, June, 1844, Supe- 
rior Court of New Hampshire, Kitteridge v. Warren, p. 87 ; Penn. 
Law Journal, October 15th, 1842, p. 2^, Jud^ Randall's decision 
(distress ;) Penn.' Law Journal, October 15, 1842, p. 245, Judg6 
Randall, (proof withdrawn ;) £x parte Lafeley, Report of Kitteridge 
& Emerson, Su;.. Court, New Hampshire. 

The decision of Jud^e Gilchrist m the case of McDowall's as- 
signee V. Planters' and Mechanics' Bank; of which an authenticated 
copy is pibdu^ed. 

But this court very properly holds itself entirely uncommitted by 
Circuit Court decisions. They are merely cases at niri prius^ and 
fli6 matters there determined are as open to discussion as ever. 

(Mr. Wilde then went on to argue tnat a mortgaged creditor could 
not be compelled to prove his deot, and that if he did so, he would 
only come m for a diare of the assets pro rata; and then investigated 
the jurisdiction of the District and Circuit Courts in bankruptcy, 
and the revisory powers of this court by appeal or prohibition, as 
follows :) 

In considering the authority of the District Court exercising sum- 
mary jurisdiction in cases of bankruptcy, it will be most convenient 
and perspicuous to examine — 

First. Its exclusive jurisdiction. 

Secondly. Its jurisdiction concurrently with the Circuit Court. 

Its exclusive jurisdiction is granted by the 6th section, whidi is 
as follows : 

?ilT. WUde here quoted it at length.) 
o obtain a distinct idea of the extent and boundaries of the 
jurisdiction thus granted, it is requisite to examine them under three 
difierent aspects : 

First. As to the persons over whom — ^that is, for or'against whom 
^-jurisdiction is given. 


Ex parte Christy. 

Secondly. As to the objects, rights, or claims, subjected to sodi 

Thirdly. As to the modes and fonns of proceeding. 

A careful analysis of this section will diow — 

First, as to jtersons: 

That the. jurisdiction granted extends — 

To the bankrupt; 

To the creditors claiming any debt under the ban]axq>tcy; 

To the assignee, whether in office or remored. 

These parties and each of them are authorized to sue each otha 
in the District Court, and to liti^;ate their reactive claims or pre- 
tensiims there. But the court will remaric, there is no jurisdiction 
whatever granted by this section, so &r as persons are concerned, 
to a creditor who does not claim under the bankruptcy. 'Ho juris- 
diction over such a creditor is cpranted : none is giren for him or 
against him. This distinction has always been recognised by the 
courts of the United States wherever the point has been brought to 
their attention. Bri^ t^. Stephens, Law Rep., Oct. 1844, p. 282, 
per Conkling, J. ; £z parte Diidley, Penn. Law Journal, Nov. 19, 
1842, pp. 320, 321, per Justice Baldwin ; Assienees of McDowall 
V. Planters' and Mechanics' Bank, per Judge GKlchiist 

Secondly. As to objects, rights, claims, and controversies, sub- 
jected to me summary jurisdiction of the District Court sitting in 

The jurisdiction granted by this section extends — 

To all controversies between the bankrupt and any creditor 
claiming any debt or demand under the bankruptcy; 

To afi controversies between such creditor and tiie assignee of 
the estate; 

To all controversies between the assignee and the bankrupt ; and— 

To all acts, matters, and things, to be done under and by virtue 
of the bankruptcy. 

But your honours will observe, that under this section, so far as 
objects, rights, (Claims, or controversies are concerned, no jurisdic- 
tion is grjuited in controversies between the assignee and a creditor 
not claiming under the bankruptcy, but clai^kiing adversely to it. 

No iuris£ction is eranted in controversies between such a creditor 
and otner creditors cledming under &e bankruptcy. 

None in cases between a creditor claiming adversely to the bank- 
ruptcy and the bankrupt himself. 

None where the acts, matters, and things are not done, or be 
done imder and in virtue of ihe bankruptcy, but before it, inde- 
pendent of it, and adversely tp it. 

So &r, than, as the objects^f the District Court's summary juris- 
diction in bankruptcy are concerned, no such jurisdiction is granted 
by this section over the rights or demands of a creditor who dainis 
adversely to Uie bankruptnr, and not under it. 



Ex parte Christy. 

In rdadon to such a creditor, so claiming such rights, he is not 
audiorized to sue in that court either the assignee or the bankrupt* 
or the creditors claiming under the bankruptcy; neither| in regard 
to such a creditor and rjch rights, is the assignee or the baxJorupt, 
or the other creditors claiming under the bankruptcy, empowered to 
sue him there. 

Thirdly. In reference to the modes and fonns of proceeding, it 
is indisputable that in the District Court, sitting as a bankrupt court, 
and holding jurisdiction in bankruptcy under the 6ib. and 7th sec- 
tions, the proceedings are summary, and in general without appeal. 

But however clearly it may appear that o^ the letter of the 6th 
section no such jurisdiction is granted for, agamst, or oyer a creditor 
claiming adversely to the bankruptcy, it may be said cognisance^of 
such clums somewhere is indispensable to the fiiU execution of a 
uniform qrstem, and therefore, ex necessikUe, it must be vested in 
some court of the Upited States. 

He who objects to the jurisdiction of a court (it will be said) must 
show that sotne other court has jurisdiction. We assume that obli- 
gation and this brings us to a lixe analysis of the 8th section. 

That section is as follows : 

« Sect. 8. And be it further enacted. That the Circuit Court 
within and for the district where the decree of bankruptcy is 
passed, shall have /concurrent jurisdiction with the District Ciourt 
of the same district of all suits at law and in equity, which may 
and shall be brought b^ any assimee of the bankrupt against any 
person or persons claiming an adverse interest, or by such person 
against sucn assignee, touching any property or r^ts of property 
pf said bankrupt transferable to, or vested m, such assignee; and 
no suit at law or in equity shall in any case be maintainable by or 
against such assignee, or by or against any person claiming an ad- 
verse interest, touching the property and ri^ts of proper^ afore- 
said, in any court whatsoever, unless the same shall be brought 
within two years after the declaration and decree of bankruptcy, or 
after tiie cause of suit shall first have accrued." 

With respect to the jurisdiction wanted by this section, the court 
will observe it is concurrent in uie District and Circuit Courts. 
But as some complexity and confusion are likely to arise in con- 
sidering the variety of jurisdictions possessed by the same tribunal, 
thou^ sitting on different' sides, and proceedm^ by different forms, 
we will analyze this section as to the jurisdiction thereby granted 
to the Circuit Courts, with reference to the persons for or against 
whom it is granted, the subject-matters over which it is extended, 
and the modes and forms of proceeding required to be adopted. 

As soon as we shall have ascertained what the jurisdiction of the 
Circuit Court is, under the 8th section, it will be easy to apply it to 
the District Court, for as the two courts under the 8th section have 
concurrent jurisdiction, it follows that whatever jurisdicticm is 

JANUARY TERM, 1846. m 

Ex parte Christy. 

gnaoited by that section to the one is granted to the other. When the 
Circuit Court's jurisdiction under it is known, the District Court's 
jurisdiction under it is known to be the same, and we thus arrive 
at a clear and precise conception of the two district jurisdictions, 
which we allege exist in the District Court, namely : 

1. Its summary jurisdiction as to parties claiming under the bank- 

2. Its jurisdiction as a court of law and equity, for or agains 
parties claiming adversely to the bankruptcy ; a jurisdiction not sum- 
mary, but to be exercised according to the usual modes smd forms 
of courts of chancery or common law, according as the nature of 
the case made, or the relief sought, belongs to the one or the other 

Let us examine, then, the jurisdiction granted by the 8th section 
to the Circuit Court. 

1. It extends to all suits at law or in equity brought by an as- 
signee against any person claiming an adverse mterest. 

2. To all suits at law or in equity by such person, against such 
as^nee, touching any property or nghts of the bankrupt. 

'flius we see that the very jurisdiction over persons claiming an 
adverse interest and rights,, not arising under the bankruptcy, but 
in opposition to it, which tiie 6th section did not ^ant to the Dis- 
trict Court exercising summary jurisdiction, has been granted to 
the Circuit Court by tiie 8th section, as a court of common law and 
equity, proceeding according to its ordinary jurisdiction in such 
Quits, and according to the usual modes and forms of proceeding in 
chancery, where a chancery remedy is sought, and of common law, 
where a* common law remedy b adequate. 

The District Court, then, as a court of summary jurisdiction, has 
no cognisance of cases for or against persons claiming an adverse 
interest, but the Circuit Court has ; and the Circuit Court, as to such 
cases, proceeds not summarily, but according to the usual modes 
and forms of courts of common law or chancery*. 

Now the jurisdiction cpranted to the District Court by the 8tii 
section is concurrent wim that given to the Circuit Court by the 
8th isection — ^that is to say, it is neither more nor less, but precisely 
the same ; to be exercised over the same ^ parties, in the same way, 
and by the same rules and forms of proc^eaing. 

There are then two distinct jurisdictions given to the District 
Courts ; as. we u^dertook to prove. 

The one a summary jurisaiction, to be exercised over all claifti- 
ing under the ba^^kruptcy, and this jurisdiction is exclusive. The 
other a forihal jurisdiction, coextensive with that. given to the Cir^ 
cuit Court, for and against |)ersons claiming adversely to the bank- 
ruptcy, which junsuiction is not summary, but to be exercised 
according to the usual forms of common law or chancery. 

The suminary jurisdiction of the Bankrupt Court may be admit- 


Ex parte Ohristj. 

ted for die puiposes of this argument^ to be ezduaii^ and widioot 

But the jurisdiction granted to tlie Circuit Court orer persona 
claiming an .adverse interest, is not summaiy, but is the ordinary 
jiurisdiction of that' court as a court of common law and cbancei^j 
extended over a new *class df. cases, and a new description of suit- 
orSy it is tru6> but to be exercised according to fong-estabUdbed 
forms ; and as the onlj jurisdiction possessed oy the District Court 
oyer persons, not parties to the bankruptcy, but claiming adversely 
to it, is precisely tiie same as tiiat riven by tiie 8th section to tibe 
Circuit Court, it follows tiiat, when me District Court takes cogni- 
sance of that clan of cases, its jurisdiction is to^ be exercised ac- 
cording to the usual forms of chancery and common law, by bill or 
suit, precisely as the Circuit Court would exercise it. 

The Circuit Court in such cases cannot decide summarily, and 
as the jurisdiction of -the District Court is^ie same, and no more, 
as to that description of persons^ and controversies, the District 
Court cannot deade summarily. 

To maintain the opposite doctrine, is to assert that a concurrent 
jurisdfetion may be dinferent, and greater in the one court than ihe 
otiier, and that the fonnal and summary jurisdictions of a court may 
be adopted and intermin^ed at its pleasure. It is indisputable, 
and conviction results from a mere inspection of the proceeding 
tiiat T^nDiam Christy, the assignee, is proceeding in the Distnct 
Court, fitting in bankruptcy, and according to tine course of its 
summaiy jurisdiction as a bankrupt court 

l%e petition is so addressed, [p. 7 of the printed papers attached 
to the suggestion.] All the pleading and orders in the cause are 
uniformly so entitled. Thej are ^^ih the United States District 
Covaij sitting in bankruptcy,'* pp. 7, 12, 14, 23, 24, 25, 26, 27, 
and 28. 

Now, where the relief sought belongs to the chancery jurisdiction, 
it must be soujdit in Louisiana, as wSl as elsewhere, in the courts 
of the United States, according to the course and forms of chancery 
practice. ' McCuUum v. Eag^, 2 Howard, 63. 
** The proceeding of the asrignee is by petition, not by bill in 

The motife of his so proceeding is sufficientiy obvious. If he 
can. maintain the jurisdiction of the District Court, exercising sum- 
maiy jurisdiction in bankruptcy, he cuts off aIl*appeaL He has 
succeeded in persuading the District Court, that the case comes 
under, and belongs to its summary cogniamcfe. A ipleai to the 
jurisdiction upon the very ground we are arguing, has been sub- 
mitted to that court and overruled. Vide the plea to the jurisdic- 
tion, p. 26, 26, of the printed record annexed to the suggestion, 
and order overndin^it, p. 26. 

In fime, therefore, it is mamfest that William Christy, the assignee. 


Ex parte Chrittjr. 

18 proeeediD^ in tbe bankrupt court, according to the course of ill 
aommaiy junkliction. 

The plea so expressly alleges, pp. 25, 26. 

Bj demurring ore terms to the plea, which he is held to have 
done, by praying judgment of the court upon it, aldiou|^ no formal 
demurrer isr allowed by the law or practice of Louisiana, he admits 
the fact 

And the court, by overruli&g the plea; decide, tiiat he ia pro- 
ceeding in the court of bankruptcy, according to the course €i its 
summary jurisdiction, but tibat he is rightfully and lawfully proceed- 

This is the precise point we have attempted to disproTe, and 
upon which we sedc the judgment ct this court, in the form of an 
order for a prohibition. 

Thus, then, we think we have sustained tiie first branch of our ar- 
gument, namely, Aat the District Court of the United States for the 
eastern district of Louisiana is proceeding in the. case (rf* William 
Christy, assignee, against the City Bank of New Orleans, widiout 
jurisdiction, and contrary to law, and in such manner as to depriye 
the City Bank of an important legal ri^t. 

This view is sustained by the decision of the late Mr. Justice 
Baldwin, Ex parte Dudley, Penn. Law Jour., Nov. 19, 1842, p. 297; 
by Briggs V. Stephens, per Conkling, J., Law Reporter, Oct 1844, 
p. 282. 

The decision of Mr. Justice Baldwin, m the matter of John Ker- 
lin, reported for the United States Gazette, 26 October, 1843. 

The dissenting opmion of Judee Bullard, b the case of The State 
V. Rosanda, p. 23 of the Printed Documents, in which it is under- 
stood Chief Justice Martin agrees, although he did not sit in die 
cause; and the dissenting opinion of the same judge in Bank's case, 
p. 7 of the same documents. 

Assuming, therefore, that the true jurisdiction, in a case like the 
present, is not in the District Court proceeding summarily by peti* 
tion and order, but in the United States Circuit Court for d^e eastern 
district of Louisiana sitting in chancery, or the District Court of that 
district having concurrent ' chancery jurisdiction, in cases for or 
acamst a creditor claiming adrersely, under and by virtue of the 
89i section of the. bankrupt act, in which suit the proceeding must 
be by bill and answer, according to the usual diancery rules and 

We are next to show that in such a case an appeal would lie. 

(Mr. Wilde went on to msdntain this proposition, citing many au- 

We r^ard it, then, as established, that from the summary juiif- 
diction of the bankrupt court no appeal lies. 

That firom the chancery jurisdiction, granted by the 8th section 
concurrently to the Circuit and District Courts, an ^peal does lie.— 39 2c2 


Ez parte Christjr. 

That the summaiy jurisdiction does not extend to a party claiming 

That the chancery does. 

And that Christy, in resorting to the summaiy jurisdiction, does 
so because he. has an evident interest to deprive the bank of die right 
of appeal, and to oust this court of its ultimate appellate jurisdiction. 

All this may be true, and yet ve may have no redress. 

Let us nOiW inquire iif this court be competent to grant us any re- 
medy, and whether we have sought the proper one. 

We have seen, in the early part of this argument, from the Eng- 
lish authorities, that in the lung's Bench this would be clearly a case 
for a prohibition. 

But this court,^it has already been admitted, does not possess, in 
such cases, an authority coextensive with that of the King^s Bench. 

We arc to Aow — 

Ist. That the exercise of such an authority is delegated to it by 
the Constitution and laws of the United States; and 

2d. That its exercise is necessary to protect its appeUate iuris- 

First, then: 

Has the Supreme Court power to issue writs of prohibition to the 
lower courts of the United States geneially, wherever they exceed 
their Jurisdiction ? 

The 13th section of the Judiciary Act of 1789, 1 Laws U. S. 59, 

S'ves this court power to issue writs of prohibition to the District 
ourts, proceeding as courts of admiralty and maritime jurisdiction, 
and writs of mandamus in cases warranted by law, to any courts, or 
persons holding office under the United States. 

The 14th sec^on gives power to issue writs of scire facias^ habeas 
corfuSy and all othei writs not q>ecially provided for by statute, and 
which may be necessary for the exercise of their Jurisdiction. 

Now the writ of prohibition, in civil cases of common law and 
equity jurisdiction, is a writ not specially provided for by statute; 
and we undertake to. show hereafter that it is necessary forihe exer- 
cise of the Supreme Court's appellate powers. 

TBie first objection we must meet is that express authority being 

E'ven to issue prohibitions in admicaity and maritime cases, it must 
} presumed there is no such authority m any other cases : '^ eipressio 
iMtttf est exclusio alterius.^^ 

But besides the argument already used in anticipation, that the 
writ in common law cases is not specially provided for by statute, 
and ttierefore within the general powers granted by the 14tn section, 
it may be remarked : — 

That it would be singular, indeed, if it did not lie by our law, in 
all tiiat laige class of cases in which it does lie hy the law of Eng- 
land, and vice versa^ that in the only case where it has been some- 
times held not tp lie by the law of^ England, it does lie by our law. 


Ex parte Christy. 


Such an anomaly would be contrary to the spirit of our whole le- 

Slslation, whose tendency is to extend justice, not to barricade juris- 

But why, then, was the express grant of power made to issue pro- 
hibitions in admiralty cases? Considered historically, the answer is 
obvious: out of abundant caution. 

At that neriod the jealousy of a part, and a lar^e part, of the peo- 
ple towarcb the courts of the United States, especially those not jpro- 
ceeding according to the course of the. common law, was excessive. 

The amendments made to the Constitution, and the debates of the 
time, are conclusive proofs of the fact. 

The decisions of Lord Mansfield in Lecaux v, Eden, and Lindo v. 
Rodney, were made in 1781 and 1782, and in 1789 must have been 
well known in the United States. 

They declared that a writ of prohibition did not fie from the courts 
of cottaion l^w to a court of exclusive iurisdiction — as the Court of 
Prize — althou^ it was alleged the goods belonged to a British sub- 
ject, and were seized on land. 

This was certainly quite enough to alarm a sensitive jealousy ; 
and though the enactment may not have covered the whole ground 
of apprehension, the fair inference under all the circumstances is, 
that the clause in our act was adopted to extend the remedy, by 
prohibition, t6 cases which it was supposed it could not reach by 
the common law — ^to enlarge the remedy, not to contract it. 

The general power to issue all other writs necessary to the exer- 
cise of meir jurisdiction, is broad enough to cover prohibitions, when 
used as an appellate or revisory process. 

(Mr. WUde then went on to revidW and criticise the cases of Mar- 
bury r. Madison, Weston v. City Council of Charieston, 2 Peters, 
464; Cohens. r, Virginia, 6 Wheat. 397; and contended tliat the 
authority to issue a writ of prohibition rested upon the same ground 
as writs o( mandamus and procedendo^ viz., the necessity of protect- 
ing the appellate jurisdiction of the Supreme Court.) 

If our distinction between the summary bankrupt jiirisdiclion and 
the formal chancery jurisdiction of the District Court be well taken, 
it follows, that when the district judge, sitting in the summary court 
of bankruptcy, i/suri)s the authority of the formal chancery court, and 
subjects to the power persons and things belonjrjng to the cognisimc^ 
of the latter, he commits an excess of jurisiliction. 

If the assopiate justice presiding in the Circuit Court of dis- 
trict, sustains the District Court in that excess, an<l says, as he is sup^ 
))Osed to have done, that it is procoeiiing regularly and lawfully, 
when in truth its proceedings aix! irregular and unlawful, then either 
this coiu*t must have power to issue a prohihifion, or ils authority to 
revise the pi-geeedings of inferior tribunals, to confine them within 
the limits of their jurisdiction, and to protect their own, is so far 
completely nullified. 


Ex: parte Christy. 

If the application foi" a prohibitioiiy therefore, must first be made 
to the Circuit Court, and when refused there cannot be broug^here 
by appeal, or writ of error, it follows, that althou^ this court would 
have ultimate appellate jurisdiction of this cause, if r^;ularly brou|^t 
and prosecuted according to law^ on the chancery sioe of that court, 
yet, if irregularly and unlawfully prosecuted on the bankrupt side, 
and the district judge and circuit jud^ erroneously sustain it there, 
we have no redress, and this tribunal is impotent to preserve its own 
uHiinqte appellate jurisdiction. In tke language of Chief Justice 
Marshall, ** It can neither revise the judgment of the inferior court 
nor suspend its proceedings." 6 Wheat 397. 

For the general practice in ptohibidon, we refer the court to 
Croucher v. Collins, 1 Saund. 136, 140, notes 1, 2, 3, 4, and 5; 
2 Chitty's General Practice, 355; 3 Black. Com. 355 ; 2 Sell. Pract. 
425. Cases in Prohibition: 14 Petersdorf Abf. verbo ProhUniian; 
2 Sdk. 547; 3 Mod. 244; 6 Mod. 79; 11 Mod. 30. Leading 
Cases: Leman v. Goulty, 3 Term R. 3; Dutens v. Robson, 1 H. 
Black. 100 ; 2 H. Black. 100, 107 ; Lecaux v. Eden, Douglass, 594 ; 
Lindb v. Rodney, Ibid. 613. Pleadings and Forms : 6 Wentwordi's 
Pleadings, 242, 304-, 1 Saund. 136, 142. 

Mr. Justice STORY delivered the opinion of the court. 

This is the case of an application on behalf of the City Bank of 
View Orleans to diis court for a prohibition to be issued to tlie Dis- 
trict Court of the United States for the district of Louisiana, to pro- 
hibit it from further proceedings in a certain case in bankruptcy 
pending in the said court upon the petition of William Chri^, as- 
signee of Daniel T. Walden, a banlmipt The suggestions for tibe 
writ state at large the whole proaeedings before theDistrict Court, 
and contain allegations of some other facts, which either do not ap* 
pear at aU upon the face of those proceedings, or qualify or contra- 
dict some of the statements contained therein. So &r as respects 
these allegations of facts, not so found in the proceedings of the Dis- 
trict Couit, we are not upon the present occasion at liberty to entertain 
an;jr consideration thereof for the purpose of examination or decision, 
as tt would be an exercise of origimuijurisdiction on the part of ^his 
court 'not confided to us by law. llie application for the prohibi- 
tion is made upon the ground that the District Court has transcend^ 
its jurisdictioQ in entertaining those proceedings ; and whether it 
has or not must depend, not upon &cts stated dehors the record, 
but upon those stated in the record, upon whieh the District Court 
was called to act, and by which alone it could regulate its judgment 
Other ijiatters, whether goin^ to oust the jurisdiction of the court, or 
to establish the want of ments in the case of the plaintiflT, constitute 
I>roperIy a defence to the suit, to be propounded for the conadera- 
tion of ttie District Court by suitable pleadings, siq)ported fay suit- 


Bx parte Olirifty. 

d)b pvoofii, and caouiot be admitted here to 
District ODQit to ent^tain tbe suit 

Let UB then see wbiat is the nature of the case ori^naUyjpresented 
to ^ District Court It is founded upon a petition or William 
C^uisly, as assignee of Daniel T. Walden, a bankrupt, in Idiich he 
states, ttuit the bankrupt, at ihe time of his filing ms schedule of 
propoty and soarrendenng it to his creditors^ was in poflsession of a 
Inge lunount of real estate, described in the petitiMi, situate in the 
dtj of New Qrl^ms, ^riiich wa^ to be administered and disposed 
of in baiJonptx^ ; the bankrupt hating ^plied to the court for the 
benefit of the Bankrupt Act ' It fiirther states, that the City Bank 
of New Orleans, claiming to be a creditor (rf* the bankrupt and to 
have a mortoage on the dbresaid property, the said, coiporation b^ 
ing a schedule creditor, being^ a par^ to die proceedings in' bank- 
ruptcy, aod beinj^ fully aware of tbe pendency of the same pro- 
cee<mg8, did proceed to the seizure of tbe said prpperty, and did 
ttosectite ike said seizure to a sale of the jnme property, the same 
being put up and oflRsred tCa liale at public auction 'by the sheriff ot 
the state District Courts on or about the 27di:of June, 1842 ;' and 
k was by die said dienff declared to. be struck off to die said City 
Bank, notwidutuiding the remonstrances of the said assignee and 
his demands to haVe the same d^vered up to himfor the benefit 
of all the creditors of die bankrupt It further avers, diat thesame 
pr op er ty was illegallT offered tor sale, and that it is itself a*nullityi 
and confisrred no title on the said City Bank ; &at the* sale was a 
fiaud upon the Bankrupt Act ; diat die City Bank attempted thereby 
to obtam an illegal preference and priority oyer the other creditoi^ 
of the bankrupt and diat the property was sold at two-thirds only 
of its estimatra yalue ; that the City Bank had neyer dderated to. 

2 person the'authori^ to bi4 off die same to the said baiu: at the 
; and that die preyious fonnalities required hv law for die sale 
were not comjplied with, and that the proper^ had been illecdly 
adyeftised and aiq>raiiied. It further ayers, that the bankrupt^ lonff 

C 'or to his banlmiptcy, was contesdng^the debt chdfned by the said 
ik; and contefimng that the said debt was not owing by him, 
and the said.properbr was not bound thereby. It furdier avers, ^ask 
die said debt is yoia for usury on the part of the said bank in mak- 
ing the loan, the same not having been made in mon^, but that it 
was leceiyed as at par in bonds of the Municipality No. 2, whiitdi 
W9ie then at depredatioirat from twenty to twenKy-five per cent., at 
dieir real current market value ; add that the said bank had no au- 
dioritjr to make the s^ contract or to accept or execute the mort- 
gage given by the bankrupt, and that the contract and mortgage are 
utterly void, and should be so decreed by the court 

The prayer of the petition i^, thai the cheriff's adjudication of die 
said property inay be declared null and void, and that the said pro- 
perty may be adjudged to form part of the bankruptcy and given up 


Ex parte Christj. 

' , ,11 

to the petitioner to be by him administered and disposed of in the 
said bankruptcy and according to law ; that the jsaid debt and mort* 
cage may be decreed to be null and void, and the estate of the said 
bankrupt discharged from the payment thereof; and that if the said 
adjudication shall be held yaud, and the debt and mortgage main^ 
tained by the court, then that die amount of the said adjudication 
may be ordered to be paid oyer by the said bank to the petitioner, 
to be accounted for and distributed by him according to law in the 
course of the settlement of the bankrupt's estate, and for all general 
and equitable relief in the premises. 

To this petition the bank, by way of answer, pleaded various 
pleas — (1) That the District Court had no jurisdiction to decide 
upon th6 premises in Uie petition ; (2) That the subject had already 
become res judicata in two suits of D. T. Walden v. The Cjty Bank, 
and The City Bank t;. D. T. Walden, in. the state courts, and by 
the District Court upon the petition ^of D. T. Walden for an injimc- 
tion, (not stating the nature or subject-matters of such suits, so as to 
ascertain the exact matters therem in controversy;) (3)' That the 
petition contained inconsistent, demand^, viz. : that the sale be set 
aside, and that the proceeds of the sale be decreed to the petitioner; 
and (4) That the mortgages to the bank were valid upon adequate 
considerations ; that the order of seizure and sale were duly granted, 
and the sale duly made with all legal formalities, and the proper^ 
adjudicated to the bank ; that the price of the adjudication was re- 
tamed by the bank td satisfy the said mortgages, and that the bank 
became and were the lawful owners 6f the property. The pleas 
concluded with a denial of all the alle^tions in the petition^ and 
prayed tiiat the issues in fact inyoli^d m the petition be tried by a 
jury. It is unnecessary for us to consider whether such a mode of 
leading is allowable in any proceedings in equity, i^ether they are 

mmary or plenary. 

Upon this state of the pleadings the petitioner took exceptions to 
the answer of the bank, and three questions were adioumed into the 
Circuit Court for its decision. To these questions the Circuit Court 
returned the following answers. (See them quoted in the statement 
of the Reporter.) 

Subsequently the assignee filed a supplemental or amended peti- 
tion in the District Court, stating the matters contained in the original 
petition more fully and at large, ^with' more precise averments, sAid 
mainly relying thereon ; and alleging, among other things, that tinQ 
City Bank became a party to the proceeding in bankruptcy ; and 
by a subsequent amendment or supplementalallegation the as^gnee 
averred, that the bank became a party to the proceeding in bank- 
ruptcy, first, by operation of law, the bank being at the time of the 
bankruptcy mortgage creditors of thje bankrupt and named in his 
schedule ; secondly, by their own act, having nled a petition in the 
court, in September, 1842, praying that the demand of the assignee 

JANUARY TERM, 1846. 811 

Ex parte Christy. 

for the postponement of the sale of certain property be disregarded, 
that their privileges be recognised, and that the proper^ be sold 
under an order of the court for cash ; and that the court bad since 
lefiised leave to the bank to withdraw and discontinue the latter ap- 
plication and petition. 

To the supplemental and amended petition the bank put in an 
answer or plea, denying the jurisdiction of the District Court to take 
cognisance thereof, ana insisting ^at they had never proved their 
debt in bankruptcy, but had prosecuted dieir remedy in the state 
courts against ihe mortgaged property, relying upon their mortgage 
as a lien wholly exempted from the operation of the bankruptcy by 
the express- terms of the Bankrupt Act ; that the District Court, sit- 
ting as a bankrupt court, and holding summary jurisdiction in mat* 
ters of bankruptcy under the act of Congress, ou^t not to take co^ 
nisance of the petition and su{5plemental petition, inasmuch as dl 

ilurisdiction over the premises is by law vested in and of right be- 
onfi|s to the Circuit Court.of the United States for the eastern district 
of Louisiana, holding jurisdiction in equity, and proceeding accord- 
ing to die forms and principles of chanceiy as prescribed by law, or 
to die District Court of ihe United States, proceeding in the same 
manner, and vested with concurrent jurisdiction over all suits at law 
br. in equity brought by an assignee against any person claiming an 
adverse interest, which courts are competent to entertain the suit of 
the petitioner and grant him the relief prayed for, if by law entitled 
to me same, and not this court ; and the bank, therefore, prayed 
the said petition and supplemental petition to be dismissed for want 
of jurisdiction. 

The District Court affirmed its jurisdictionp considering that the 
matters of the plea had been already determmed by the decree of 
the Circuit -Court already referred to, and overrulea the pleaj and 
ordered the bank to answer'to the m'erits of the cause. 

It is at this stage of the proceedings, so far as the record before 
us enables us to see, that the motion for the prohibition has been 
brought before this court for consideration and decision. Upon the 
argument the principal questions which have been discussed are, 
first, what is the true nature and extent of the jurisdiction of the 
District Court sitting in bankruptcy ? secondly, whether if the Dis- 
trict Court has. exceeded its jurisdiction in the present case, a Wait 
of prohibition lies from this court to that court to stay farther pro- 
ceedings ? Each of these questions is of great importance, and the 
first in an especial manner having given rise to some diversity of 
opinion in the different circuits, and lying at the foundation of all 
the proceedings in bankruptcy, is essential to be decided in order to 
a safe and just administratiQn of justice under the Bankrupt Act. 

In the first place, then, as to the jurisdiction of the District Court 
in matters of bankruptcy. Independent of the Bankrupt Act of 
1841, chap. 9, the Distnct Courts of the United States possess no 


Bz parte Chrifty. 

equity jurisdiction Tdiataocrer ; for the prerioiisl^^ 
conferred no such authority upon mem. WhateTer jurisdietioii, 
Aerefore, Ihey now possess is wholly derived from diat act Aiid| 
9S we shall presently see, the iurisdictio^ thus confeired is to be^s* 
ercised by that court summaruy in the nature of summaiy proceed** 
ittflss in equity. 

The obvious deaga of the Bankrujit Act of 1841, chap. 9, was 
to secure a prompt and effectual administration and setdement 6£ 
the estate of all bankrupts within a limited period. For this pur- 
pose it was m^ispensable that an entire system ade(]|uate to that end 
diould be {>rovided by Congress, capable ot bemg- woiked out 
through the instrumentality oiits own courts, independent^ of all 
aid and assistance from any other tribunals over which it could 
exercise* no efiectual control. The lOfii section (rf* the act dedaies^ 
that in order to ensure a roeedy settlement and close of^lhe jffo- 
ceedioigs in each case in Danlouptcy, it AdH be the duty dt the 
court to order and direct a collection of the assets, and a reduction 
of the same to money, and a distribution thereof at i» early periods 
as pracacable, consistaitly with a due regard to die interests of die 
creditors, and that audi custribution of the assets, so fiur as can be 
done consistently widi the rights of third persons having adverse 
claims thereto, ehall be made as often as once in six months ; and 
diat all the proceedings in bankruptcy m each case, if practicable, 
diaQ be finally adjusted, settled, and brou^t to a close by the court, 
within two year^ after the decree declanng the bankruptcy. By 
anodier section of die act, (§ 3^) die assignee is vested with all the 
rijB;hts, tides, powers, and authorities, to sell, manage, »and dispose 
of the estate and property of the bankrupt, of ev^ name and 
nature, and to sue mr and defimd the same, subject to the orders 
and dire^ons of the court, as fally as the bankrupt mig^ before his, 
bankruptcy. By another section, (§ 9,) all sales, transfers, and' 
other convcnrances of the bankrupt's property, add ri^its of prc^erQr, 
are required to be made by the assignee ^t such times and in sqch 
manner as shall be ordared and appointed by the court in bank- 
ruptcy. By another section, (§ 11,) the asrignee is clothed widifbll 
authority, by and under the o«der and direction of the proper court 
in banlmiptcy, to redeem and discharge any mortgage, or other 
pledge, or deposit, or lien upon any property, real or personal, and 
to tender a due pc^ormance thereof and to compound any debts or 
odier claims or securities due or bdonging to the estate of the 

From this brief review of diese enactments it is manifest tiiat 
the purposes so essential to the lust operation of the bankrupt sys^ 
tem, could scarcely be accomplished except by clothing the courts 
of die United States sitting in bankruptcy with the most ample post- 
ers and jurisdiction to accomplish diem ; and it would be a matter 
of extreme surprise if^ when Congress had dius required the e»d. 

JANUARY TERM> 1946. 8» 

Ex parte Christj. 

they should at the same time have wilhheld the means Inr Tdiich 
alone it could be successfiilfy' reached. AccorcUnely we md that 
byihe 6th section of the act it is expressly provided, ^^that die Dis- 
trict Court in eyeiy district shall have junsdiction in aU matters and 
proceedings in bankruptcy arising under this act, and any other act 
vyhich may hereafter be passed on the subject of bankruptcy, the 
said jurisdiction to be exercised summarily in the nature of sum- 
maiy pn)ceedinfi8 in equity ; end for this purpose the said District 
Court diall be &emed always open. Ana the district judge mqr 
adjourn any noint or question annnr in any case in banlmifrtcvinto 
the ^rcuit Court for the district, in nis discretion, to be there heard 
and detennined ; and for diis purpose the Circuit Court of such dis- 
trict shall also be deemed always open." If the section had stopped 
here, there could have been no reasonable ground to doubt that it 
reached all cases vriiere the rights, claims, and proper^ of the bank- 
rupt, or diose of his assignee, are concerned, smce they are matters 
arising under &e.act, ana are necessarily involved in the due admin- 
istration and setdement of the bankrupt's estate. In this respect the 
language of the act seems to have been borrowed from the lan^age 
of tne Constitution, in whidi the judicial power is declared to ex- 
tend to cases arising under the Constitution, laws, or treaties of the 
XJmted States. But the section does not stop here, but in order to 
avoid aU doubt it goes on to enumerate certam specific classed of 
cases to which the jurisdiction qhall be deemed to extend, not by 
wa^ of limitation, but in explanation and illustration of the gene- 
rality of die preceding language. The action iurther decmres: 
<^ And the jurisdiction hereby conferred on die District Court shall 
extend to all cases and controversies in bankruptcy arising between 
the bankrupt and any creditor or creditors, who shall claim any dd>t 
or demand under the bankruptcy ; to all cases ;and controversies 
between sudi creditor or creditors and the assignee of the estate, 
Aether in office or removed ; and to all acts, matters, and thinss, 
to be done under and in virtue of the bankruptcy until the final &- 
tribution and setdement of the estate of the bankrupt, and the close 
of the proceedings in bankruptcy." This last clause b manifest^ 
added m order to prevent die force of any argument that die specific 
enumeration of the particular classesi of cases ou^t to "be construed 
as excluding all. odiers not enumerated, upon the known maxim, 
often incorrecdy applied, txprtssio umus est excbisio alterius. The 
8di section of die act further illustrates this subject. It is there pco- 
vided, " that the Circuit Court within and for the district where tile 
decree of bankruptry is passed, shall have concurretit ju isdiction 
with the District Cc- irt of the same district, of all suits at law and 
in equity which Ina^ and shall be bro'udit by auy assignee of the 
bankrupt against any person c persons claiming an adverse inte est, 
or by such pelrson against such assignee touching any propert. or 
rights of property of such bankrupt ti-ansferrable to or vested in such 
Vol.111.— «) 2D 


Ex parte Christy. 

assignee.^' Now, this clause certainly supposes either that the Dis- 
trict Court, in virtue of the 6th section above cited, is already in 
full possesion of the jurisdiction, in the class of cases here men- 
tioned, at least so far as they are of an equitable nature, and then 
confers the like concurrent jurisdiction on tjie Circuit Court, or it 
intends to confer on both courts a coextensive authority over that 
very class of cases, and thereby demonstrates thftt Congress did not 
intend to limit the jurisdiction of the District Court to the classes of 
cases specificallv enumerated in the 6th section, but to bring within 
its reach all adverse claims. Of course, in whichever court such 
adverse suit shpuld be first brought, that would give such court full 
jurisdiction thereof, to the exclusion of the other, but in no shape 
whatsoever can this clause be construed otherwise to abridge the 
exclusive jurisdiction of the District Court over all other " matters 
and proceedings in bankruptcy arising under the act," or over " all 
acts, and matters and things to be done under and in virtue of the 
bankniptcy." *- 

One ground urged in the declinatory plea of the bank to the sup- 
plemental petition, and also in the argument here, is, that the Dis- 
trict Court would have had jurisdiction in equity over the present 
case, if the suit had been by a formal bill and other plenary pro- 
ceedings according to the common course of such suits in the Cir- 
cuit Court, but that it has no right to sustain the suit in its present 
form of a summary proceeding in equity. Now, without stopping 
to consider whether the petition of the assignee in the present case 
is not m substance, and for all useful purposes, a bill in equity, it is 
clear that the suggestion has no -foundation whatsoever in the lan- 
guage or objects of the 6th or 8th sections of the Bankrupt Act. 
There is no provision m tlie former section authorizing or requiring 
the District Court to proceed in equity otherwise than " summarily 
in the nature of summary proceedings in equity ;" and that court is 
by the same section clothed with ImII power and authority, arid in- 
deed it is made its duty, " from time to time to prescribe suitable 
rules, and regulations, and forms of proceedings, in all matters in 
bankruptcy,''^ subject to the revision of the Circuit Court ; and it is 
added : *' And in all such rules, and regidations, and forms, it shall 
be the duty of the said courts to make them as simple and brief as 
practicable, to the end to avoid all unnecessary expenses, and to 
racilitnte the use thereof by "the public at large." If any infer- 
ence is to be drawn from this language, it b, not that the District 
Court sliould in any case proceed by plenary proceedings in equity 
in cases of bankniptcy, but that the Circuit Court should, by the 
interj^osition of its revisini^; power, aid in the suppression of any 
such plenary proceedings it* they should be attempted tliercin. The 
manifest object of the act was to provide speedy proceedings, and 
the asi'ertainment and adjustment of all claims and rights in favour 
of or against the bankrupt's estate, in the most expediUous manner, 

JANUARY TERM, 1846. dl5 

Ex parte Christy. 

consistent >vith justice and equity, without being retarded or ob- 
structed by formal proceedings, according to the general course of 
equity practice, which had nothing to do with the merits. 

Anodier ground of objection insisted on in the argument is, that 
the lan^age of the 6th isection, where it refers to " any creditor, 
or creditors, who shall claim any debt or demand under the bank- 
ruptcy," is exclusively limited to such creditors as come in and 
prove their debts under the bankruptcy, and does not apply to 
creditors who claim adversely thereto. If this argument were well 
founded, it would be sufficient to say, that the case would then fall 
within the concurrent jurisdiction given by the 8th section already 
cited, and therefore not avail for the City Bank. But we do not so 
interpret the language. When creditors are spoken of *^ who claim 
a debt or demand under the bankruptcy^" we understand the mean- 
ing to be that they are creditors of the bankrupt, and that their debts 
constitute present subsisting claims upon the bankrupt's estate, un- 
extinguished in fact or in law, and capable of being asserted under 
the bankruptcy in any manner and form which the creditors might 
elect, whether they have a security by way of pledge- or mortgage 
therefor or not. U they have a pledge or mortgage therefor, they 
may apply to \he court to have the same sold, and the proceeds 
thereof applied towards the payment of their debts pro tantOy and 
to prove for the residue ; or, on the 6ther hand, thfe assignee may 
contest their claims in the court, or seek to ascertain the true amount 
thereof, and have the residue of the property, after satisfying their 
claims, applied for the benefit of the other creditors. Still, the 
debts 01 demands are in either view^ debts or demands under the 
bankruptcy, and they are required by the Bankrupt Act to be in- 
cluded by die bankrupt in the list of the debts due to his creditors 
when he applies for the benefit of the act ; so that there is nothing 
in the language or intent of the 6th Action to justify the conclusion 
which the argument seeks to arrive at. The 5th section of the 
Bankrupt Act is framed diver^o intuitu. It does not speak of 
creditors who shall claim any debt or demand undt*r the bankruptcy, 
but it uses other qualifying langua^. The words are : " All cre- 
ditors coming in and proving' their debts under such bankruptcy in 
thcmanner hereinafter prescribed, the same being bona fide debts, 
shall be entitled to diare in the bankrupt's property and (?ffects pro 
rata^ &c. ; and no creditor or other person coming in or pronng his 
debt or other claim, shall be allowed to maintain any suit at law or 
in equity therefor, but shall be deemed thereby to have waived all 
right of action and suit against such bankrupt." But this provision 
by no means interferes with the right of any creditor to proceed 
against the assignee under the bankruptcy to have the benefit of 
any mortgage, pledge, or other security, pro tanto for his debt, if 
he elects so to do, or with the rights of the assignee to redeem the 


Ex parte Christj. 

same, oi otherwise to contest the validity of the debt or secuiitj 
under the bankruptcy. 

It is also suggested that the proviso of the 2d section of the act 
declares, *^That nothing in this act shall be construed to annul, 
destroy, or impair any lawful rights of married women or minors, or 
anv liens, mortgages, or other securities on property, real or perso- 
na), which may be valid by thje laws of &e staites respectively, and 
which may not be inconsistent with the provisions of the 2d and 
5th sections of this act;" and that thereby such liens, mortgages, 
and other securities are* saved from the operation of the Ba&rupt 
Act, and by inference from the jurisdiction of the District Court. 
But we are of opinion that the iniS^rence thus attempted to be drawn, 
b not justified by the premises. There i^ no doubt &at the liens, 
mortgi^;es, and other securities within the purview of this proviso, 
80 w as they are valid by the state laws, are not to be annulled, 
destroyed, or impaired under the proceedings in bankruptcy; but 
they are to be held of equal obligation and -^dity in the courts of 
the United States as they would be in the state courts. The Pis- 
trict Court, sittinfi^ in bankruptcy, is bound to respect and protect 
them. But this does not and cannot interfere with the jurisdiction 
and right of the ^District C ourt to inquire into and ascertain the vaU- 
dity and extent of such liens, mortgages, and other securities, and 
to grant the ^ame remedial justice and relief to all the parties inte- 
rested therein as the state courts might or ought to erant. Jf the 
argument has any force, it would go equally to establish, that no 
court of the United States, neither me Circuit Court, nor the Dis- 
trict Court, could entertain any jurisdiction over any isuch cases, but 
that ibej exclusively belong to the jurisdiction of the state courft. 
Such a conclusion would be at war with the whole theory and prac- 
tice under the judicial power given bv the Constitution-and laws of 
the United States. The rij^ts and the remedies in such cases are 
entirely distinct. While the former are to be fully recognised in all 
eourts, the latter belong to the lex/ariy and are within the compe- 
tency of the national courts eoually with the state courts. 

Let us sift this argument a little more in detail. The 8th section 
of the Bankrupt Act. (as we have already seen) confers on the Cir- 
cuit Court concurrent jurisdiction with the District Court of all suits 
at law and in equitjr brou^t by the assignee against any persop 
claiming an adverse intere^ and e converso by such person against 
the assignee. Now, the argument at the bar supposes, that a cre- 
ditor having toy lien, mortgage, or other security, falls within, the 
d^egoiy here described as having an adverse interest Assuming 
this to be true, (on which we give no opinion ; and the clause cer- 
tainly does include persons claiming by titles paramount and not 
under the bankrupt,) still it must be admitted that, under the 8di 
•ection, a bill in eqliiQr may be brought by or against such creditor 
in the Circuit Court to redeem or foreclose, or to enforce, or to set 

JANUARY TERM> 1846, 817 

Ex parte Ghrittj. 

aside audi a lien, mortgage, or other security ? If it can be, tiben 
the £en, mortes^, or other security, is not saved from* the cogni- 
sance of the Circuit Court having jurisdiction in bankruptcy, out 
the most ample remedies lie there ; and although the ri^ts ox such 
creditors are to be protected, they are subject to the entire ezamina- 
tioji and decision of the court as much as diey would be, if broudit 
hefore the court in the exercise of its ordmaiy jurisdiotion. if, 
tLen, the jurisdiction over such liens, hior^&ges,- and securities 
essts in the Circuit Court, it follows from the very words of the 
Baalorupt Act, that the District 'Court has a concurrent jurisdiction 
to the same extent and with the same powers. 

But it is objected, that the jurisdiction of the District Court is 
^umrnarv in equity and without appeal to any higher court This 
we reamly admit.x But this was a matter for the consideration of 
Congress in framing the act. Cong;ress possess the sole right to say 
what shall be the forms of proceedrnffs^ either in equity or at law, in 
the courts of the United States ; and m what cases an appeal shall 
be allowed or not It is a matter of sound discretion, and t6 be 
exercised by Congress, in such a manner as shall in their judgment 
best promote the public convenience and the true interests of the 
citizens.* Because the proceedings are to be in the nature of sum* 
maiy proceedings in equity, it by no means follows, that they are 
not entirely consistent with the principles of justice' and adapted to 
promote the interest as well ^s tne convemence of all suitors. Be- 
cause there is no appeal given, it by no means foUows, that die 
jurisdiction is eithev oppressive or dangerous. No appeal lies from 
the judgments either of the District or Circuit Court in criminal 
cases ; and yet within the cognisance of one' or both of those courts 
are all crimes and offences against the United States, from diose 
which are capital down to the lowest misdemeanors, affecting the 
liberty and the proper^ of the citizens. And ^et there can be no 
doubt that this denial of appellate jurisdiction is founded in a wise 
protective public policy. The same reasoning would apply to the 

S>pellate jurisdiction from the decrees and judgments 6f the Circuit 
ourt, which are limited to cases above $20iD0, apd cases below 
that sum embrace a lar^ proportion of the business of that court 

But, in the present instance, ihe public policy of confidine the 
whole jurisdiction to the District Court without appeal in ormnary 
cases requires no daborate argument for its vindication. The dia* 
trict judges are presumed to he entirely competent to all the duties 
imposed upofi them by the Bankrupt Act. In cases of doubt or 
difficulty, me- Judges have full authority riven to them to adjourn 
any questions into the Circuit Court for a final decision. That very 
course was adopted in the present case. In the next place, in one 
class of cases, that of adverse interests' between the assignee and 
diiird persons, either party is at libertjr to institute original proceed- 
ings in the Circuit Court, if a prior suit has not been brought there- 

S d2 


Ex parte Christy. 

for, in the District Court. So that here the act has afibrded efiectual 
means to have the aid and assistance of the judge of the Circuit 
Court, wherever it may seem to be either expeaient or necessary to 
resolve any questions of importance or difficulty, and it has also 
secured to parties having ah adverse interest a right at their election 
to proceed m the District or the Circuit Court for any remedial jus- 
tice which their case may require. On the other hand, the avowed 
policv of the Bankrupt Act, that of ensuring a ^eedv administration 
and distribution of the bankrupt's effects, would (as nas been already 
suggested) be greatly retarded, if not utterly defeated by the delays 
necessarily incident to regular and plenary proceedings in equity in 
the District Court, or by allowing appeals from the District Court to 
the Circuit Court in all matters arising under the Bankruptcy. 

It is farther objected that, if the jurisdiction of the District Court 
is as broad and comprehensive as the terms of the act justify accord- 
ing to the interpretation here insisted on, it operates or may operate 
to suspend or control all proceedings in the state courts either then 
pending or thereafter to be brought bv any creditor or person hav- 
ms any adverse interest to enforce bis rights or ol;tain remedial 
rearms against the bankrupt or his assets after the bankruptcy. We 
entertadn no doubt that, under the provisions of the 6th section of 
the act, the District Court does possess full jurisdiction to suspend 
or control such proceedings in the state courts, not by acting on the 
courts, over which it possesses no authority ; but by acting on the 
parties through the instrumentality of an injunction or other remedial 
proceedings in equity upon due application made by the assignee 
and a proper case bemg laid before the court requiring such inters 
Terence. Such a course is very familiar in courts of chanceiy, in 
cases where a creditors' bill is filed for the administration of the 
estate qf a deceased person, and it becomes necessary or proper to 
take the whole assets into the hands of the courts for the purpose of 
collecting, and marshalling the assets, ascertaining and adjustinjj 
conflicting priorities and claims, and accomplishing a due and equi^ 
table distrioution among all the parties in interest in the estate. 
Similar proceedings have been instituted in England in cases of 
bankruptcy ; and they were without doubt in the contemplation of 
Congress as indispensable to the practical working of the bankrupt 

System. But because tlie District Court does possess such a juns- 
iction under the act, there is nothing in the act whicli requires that 
it should in all cases be absolutely exercised. On the contrarj'j 
where suits are pending in the state courts, and there is nothing m 
Aem which requires tlie equitable interference of the District Court 
to prevent any mischief or wrong to other creditors under the bank- 
ruptcy, or any waste or misapplication of the assets, the parlies may 
well DC permitted to proceed in such suits and consummate Aem 
by proper decrees and judgments, especially where there is no sug- 
gestion of any fraud or injustice on the part of the plaintiffs in those 

JANUARY TERM* 1845. 819 

Ex parte Chrlstj. 

suits. The act itself contemplates that such suits may be prosecuted 
and further proceedings had in the state courts ; for the assignee is 
by the 3d section authorized to sue for and defend the property 
vested in him under the bankruptcy, ^^ subject to the oraers and 
directions of the District Court," <' and all suits at law and in equi^ 
then pending in which such bankrupt is a party, may be prosecuted 
and oefended by such assignee to its final conclusion in the same 
way and manner and with the same effect as they midit have been 
by the bankrupt." So that here the prosecution or defence of any 
such suits in the state courts is obviously intended to be placed un* 
der the discretionary authority of the District Court And in point 
of fact, as we all know, very few, comparatively speaking, of the 
numerous suits pending in the state courts at the time of me bank- 
ruptcy ever have been mterfered with, and never, unless some equi^ 
intervened which required the interposition of the District Court to 
sustain or protect it. • 

It would be easy to put cases in which the exercise of this author- 
iQr may be indispensable on the part of the District Court, to prevent 
irreparable iniuiy, or loss, or waste, of the assets, without aaverting 
to the case at bar, where, upon the allegations in the petition and sup- 
plemental petition, the creditors of the bankrupt are attempting to 
enforce a mortgage asserted to be ilkfi^al and invalid, and to procure 
a forced sale of me property by the sherifT, in an illegal and irregu- 
lar manner, thereby saciificmg the interest of the other creditors un- 
der the bankru'ptoy. Let us put the case of numerous suits pending, 
or to be brought in the state courts, upon different mort^iges, by 
the mortgagees, upon various tracts of land and other pnq>^rty, 
some of £e mortgages being upon th6 whole of the tracts of land or 
other property; some upon a part only thereof; some of them in- 
volving a Qoimict of independent titles; some of them involving 
Suestions as to the extinguishment, or satisfaction, or validity, of the 
ebts ; and some of them involving verv doubtful questions as to the 
construction of the terms and extent of the. conveyances. If all such 
suits may be brought by the separate mortgagees, in the different 
state tribunals, and the mortgagees cannot be compelled to join in, 
or to be made parties defendant to one smgle^ bill, (as is certamly the 
case in those states where general equity jurisdiction is not given to 
die state courts,) it is most obvious that, as each of the state tribu- 
nals may or must proceed upon the single case only before it, the 
most conflicting decisions may be made, and gross and irreparable 

a'ustice may be done to the other mortgagees, as well as to tbefi;ene- 
creditors under the baidm^ptcy. An mis, however, is compietelv 
avoided, by bringing the whole matters in controversy between all 
the mortgagees before the District or Circuit Court, making them all 
parties to the summary proceedings in ecjuity, and thus enabling the 
court to marshal the nghts, and priorities, and claims, of all the 
parties, and by a sale and odier proper proceedings, after satisfying 


Ex parte Christj. 

die just claims of all the mortgagees, appljring the residue of Ae as- 
sets, if any, for the benefit of the general creditors. Similar consi^ 
deiatioDS would apply to other liens and securities, held by different 
parties in the same property, or fumi$hing grounds of conflict and 
controyersy as to their resp^ctiye rights land claims. 

Beades, how is the bankrupt court or the assignee, in a great 
Tariety of cases of Bens, mortgaj^es, and other securities, to ascertain 
Hie just and full amount thereof after the deduction of all payments 
and equitable set-oi!s, unless it can entertain a suit in equity, for a 
discovery of the debts, and payments, and set-ofTs, and grant suita^ 
ble relief in the premises? The bankrupt is not, in his schedule, 
bound to specify tnem ; and if he did, ncm constat that the other par- 
ties would admit their correctness, or that the general creditors 
would admit their validity and amount. The 11th section of the 
act gives the assignee full power and authority, by and under the 
order and direction of the proper court in bankruptcy, to redeem 
and discharge any mortgage or other pledge, or ueposit, or lien, 
upon any property, and to tender a due periformance of the condi- 
tions hereof. But how can this be eflectually done, unless the 
bankrupt court and assignee can, by proceedings in that very court, 
aacertain what is the amount of such mortgage, or pledge^ or depo- 
sit, or lien, and what acts are to be done as a performance of the 
mortgage, or pledge, or deposit, through the instrumentality of a 
suit m the nature of a summary proceeding in equi^ for a discovery 
and relief? If we are told that resort may be had to the state courts 
for redress, one answer is, that in some of the states no adequate ju- 
risdiction exists in the state courts, since they are not clothed with 
general jurisdiction in equity. But a stronger and more conclusive 
answer is, that Congress did ,not intend to trust the working of the 
bankrupt system solely to the state courts of twenty-six states, whiclr 
were independent of any control by the general government, and 
were under no obligations to carry the system into effect. The ju- 
dicial power of the United States is, by the Constitution, competent 
to m such purposes; and Congress, by the act, intended to secure 
the complete administration of the whole system in its own courts, 
as it constitutionally might do. 

Let us look at another provision of the act already referred to, 
which declares, "that in order to insure a speedy settlement and 
dose of the proceedings in each case in bankruptcy, it shall be the 
duty of the court to order and direct a collection of the assets, and 
a reduction of tiie same to money, and a distribution thereof, at as 
early periods as practicable." Now here again, it may be repeated, 
^t the end is required, and can it be doubted that adiequate means 
to accomplish the end are intended to be given ? Construing the 
language ot the 6th section as we construe it, adequate means are 
^ven ; construing it the other way, and it excludes the jurisdiction, 
if not of the whole subject, at least of the most ilnportant parts cf 


Ez parte Cfeuisij. 

die system^ and thqr are left solely to the cognisance of tbe tribunak 
of twenty-six different states, no one of vmck is bound by &e acts 
of die others, or is under .the control of die national courts. If it be 
admitted, (what cannot well be denied,) that the District Court may 
order a nfe of the property of the bankrupt, under this section, how 
can that sale be made safe to th6 purchasers, until all claims thereon 
have been ascertained and adjusted? How can any distribution of 
die assets be made, until all such*claims are definitivelv liquidated? 
How can the proceedings be brought to a close at all, mr less within 
the two years, unless all parties claiming an interest, adverse or other- 
wise, can be brought before the bankrunt court, to assert and main- 
tain diem ? Besioes, independendy of me delays which must neces- 
sarily be incident to a resort to state tribunals to adjust the matters 
and rights afiected by or ari«ng in bmkn^ptcy, consideiii^ the vast 
numbsT of cases pending in t)u>se courts, m-the due admmistradoa 
of their own' jurisprudeh<er«nd laws, there could htfdly fidl to be a 
conflict in the decisions, as to the priority and extent of the varioas 
clidms of the creditors, pursuing their rentes therein in disdnct and 
independent suits, and peiiiaps, also,, in different state tribunals of 
co-ordinate jurisdiction. These are but a few of die cases which 
may be put to diow the propriety, nay, the neces9ity, of the jurisdic* 
tkinof the District Court to the full extent of reaching all cases aria- 
inffout of the bankrupt act. 

The truth is, (as hiM been already asserted,) dkat in no odier wqr 
could the bankrupt system be put into operation, without inteimina- 
Ue doubts, controyenries, embarrassments, ana difficnlties, or in 
such a manqer as to aduere the true end and design thereof. Its 
success was dependent ui>on the national machinery being made 
adequate to all the exigencies of die act Pronqyt ahd ready action, 
without heavy charges or «q>enses, could be safely relied on, when 
the whole jurisdiction was confided to a single court, in the collec- 
tion of the assets ; in the ascertainment and liquidation of the liens 
and odier ^ecific claims thereon ; in adjusting the rarious priorities^ 
and conflictmg interests; in marshalling the different funds and as- 
sess; in directing the sales at Such times and in such a manner as 
dKmld best subsenre the interests of all concerned ; in preventing, 
by injuncticm or odierwise, i^iy particular creditor or person, having 
an advene interest, firom obtaining an unjust and inequitable prefep- 
ence over die general* creditors, by ,an improper use of his rights or 
his remedies in the state tribunals; and finally, in making a due dis* 
tributiofn of the assets, and brmgin^ to a dose, within a reasonable 
time, die whole proceedings in bankruptcy. Sound policy, there- 
Ibre, and a just r^ard to public as well as private interests, mani- 
fesdy dictated to Congress the propriety of vesting^ in the District 
Court fbU and complete jurisdiction over all cases arising, or ads 
done, or matters involved, in the due adimnistratioh and final setde- 
t of the baiddiq^'s estate ; and it is accordingly, in our judgment, 

Vol. nt— 41 


£z parte Christy. 

designedly given by the 6th section of the act. In this view of the 
matter, the District €ourt has not exceeded its jurisdiction in enter- 
taining the present suit, but it has full power and authority to proceed 
to the due adjudication thereof upon its merits. 

This view of the subject disposes also of the other question made 
at the bar, whether this court has jurisdiction to issue a writ of pro- 
hibition to the District Court in cases in bankruptcy, if it has exceed- 
ed its proper jurisdiction. As the District Court has not exceeded 
its jurisdiction in the present case, the question is not absolutely ne- 
cessary to be decided. But it may be proper to say, as the p<Hnt 
has been fully argued, that we possess no revising power over the 
decrees of the District Court sitting in bankruptcv ; that the District 
Court, in the present case, has not interfered witti, or in any manner 
evaded or obstructed, the appellate authority of this court, by enter- 
taining the present writ; and that we know of no case where this 
court IS authorized to issue a writ of jprohibition to the District Court, 
excepit in the cases expressly provided for by the 13th section of the 
Judiciary Act of 1789, chap. 20, that is to say, where the District 
Courts are '^ proceeding as courts of admiralty and maritime jurisdic- 

Upon the whole, the motion for a writ of prohibition is overruled. 

Mr. Justice CATRON. 

By the 14th section of the Judiciary Act this court has power to 
issue writs proper and necessary for the exercise of its. jurisdiction ; 
having no jurisdiction in any given case, it can 'issue no writ : that 
it has none to revise the proceeding^ of a bankrupt court is our 
unanimous opinion. So far we adjudge ; and in this I concur. 
For. fiirdier views why the prohibition cannot issue, I refer to tiie 
conclusion of the principal opinion. But a majority of my brethren 
see proper to go further, and express their views at large on the ju- 
risdiction of ttie bankrupt court In this course I cannot o^cur ; 
perhaps it is the result of timidity fipx>wing out ofiong estabiiflhed 
judicial habits in courts of error elsewhere, never to hazard an 
opinion where no case was before the court, and when that opinion 
might be justly arraigned as extra-judicial, and a mere dictum by 
courts and lawyers; be partiy disregarded while I was living, and 
almost certainly be denounced as undue assumption when I was no 
more. A measure of disregard awarded with an unf^aring hand^ 
here and elsewhere, to the dicta of state judges-under^ - 
cumstances : and it is due to the occasion and to myself to «a^^ that 
I have no dbubt the dicta of this court wiH only be treated with be- 
. coining respect before the court itself, so Ions; as some of the judges 
who concurred in tbem are present on the bench ; and afterwards 
be openly rejected attjio. authority — as they are not 

Tne case standing in the Diitoct Court of Louisiana will test it 
as well as another. The application for a prohibition was broug^ 


Ex parte Chris-ty. 

before us at last term ; then the late Mr. Justice Baldwm was here, 
and one other of tlie judees now present was then absent ; had the 
matter not then been laid over on advisement, and a decision been 
had adverse to our jurisdiction to award tlie writ ; and an opinion 
been expressed by the majority of th^ judges then present, against 
the legaTity of the proceeding in the bamcrupt court, declanng it 
void, and that in the state court valid ; would the bankrupt court 
be bound to conform to such opinion ; would it overrule the in- 
structions given in the p^cular case by the Circuit Court on the 
questions adjourned, dismiss the petition of Christy, the assignee, 
and let the decree and sale foreclosing the mortgage made by die 
state courts stanid ? Will the bankrupt court of Pennsylvania be 
bound, either judicially or in comity, by the opinion now eiven by 
a majority of the judges present, to overthrow that of Mr. Justice 
Baldwin in the