Full text of "Reports of cases argued and adjudged in the Supreme Court of the United States"

See other formats

This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project
to make the world's books discoverable online.

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject
to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books
are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover.

Marks, notations and other marginalia present in the original volume will appear in this file - a reminder of this book's long journey from the
publisher to a library and finally to you.

Usage guidelines

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing this resource, we have taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.

We also ask that you:

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for
personal, non-commercial purposes.

+ Refrain from automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.

+ Maintain attribution The Google "watermark" you see on each file is essential for informing people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liability can be quite severe.

About Google Book Search

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web

atjhttp : //books . qooqle . com/

y'*~* REPORTS (& (

C A S E S

ARGUED AND ADJUDGED
IN

THE SUPREME COURT

OF THE

UNITED STATES.

February Tern, 1821.

ma*m**+**a**+

BY HENRT WHEATON,

Counsellor at Law.

«MM%MMAw%

VOLUME VI.

XEW-YORK*
PUBLISHED BT R. DONALDSON, HO. 45 JOHN-STREET*

C. S. Tan Winkle, Printer, 101 Greenwich-street

•••••••••••a

1891.

v. II

ex.

* %

J \

Siuthern District o/ kern- }ork, «.

BE IT REMEMBERED, that on the sixteenth of Julrf in the forty-sixth
year of the Independence of the United States of America, Hbhbt Whiatow, of
the said district, hath deposited in this office the title of a book, the right whereof
he claims as author, in the words and figures following, to wit:

44 Reports of Oases argued and adjudged in the Supreme Court of the United
States. February Term; 1*21. B¥ Henry Wnea'tbn\ Counsellor at Law. Vo-
lume VI."

In conformity to the act of the Congress of the United States, entitled, ** An
act for the encouragement of learning, by securing the copies of maps, charts,
and hooks, to the authors and proprietors of such copies, during the times
therein mentioned ;'* *rid alio Jto *q act, enlftM, " An act supplementary to
an act, entitled, an act for Ine encouragement of learning, oy securing the
copies of maps, charts, and books, to the authors and proprietors of such copies,
during the time therein mentioned, and extending the benefits thereof to the
arts of designing, engraving, and etching historical and other prints.*'

t?. L. THOMPSON,
Clerk of the Southern District of New- York.

JUN 9 1910

• •

JUDGES

OF THE

SUPREME COURT OF THE UNITED STATES,

DURING THE TIME OP THESE REPORTS.

The Hon. John Marshall, Chief Justice.

The Hon. Bushrod Washington, Associate Jus-
tice.

The Hon. William Johnson, Associate Justice.

The Hon. Brockholst Livingston, Associate Jus-
tice.

The Hon. Thomas Todd, Associate Justice.

The Hon. Gabriel Duvall, Associate Justice.

The Hon. Joseph Stort, Associate Justice.

William "Wirt, Esq. Attorney-General.

Mem. Mr. Justice Washington was absent the whole
of this term, from indisposition.

GENERAL RULES.

February Term, 1821.

RULE XXX.

After the present term, do cause standing for
argument will be heard by the Court, until the par-
ties shall hare furnished the Court with a printed
brief or abstract of the cause, containing the sub-
stance of all the material pleadings, facts, and docu-
ments, on which the parties rely, and the points of
law and fact intended to be presented at the argu-
ment.

RULE XXXI.

Whenever pending a writ of error, or appeal in this
Court, either party shall die, the proper representatives
in the personalty or realty of the deceased party,
according to the nature of the case, may voluntarily
come in and be admitted parties to the suit, and
thereupon the cause shall be heard and determined,
as in other cases ; and if such representatives shall

vi GENERAL RULES.

not voluntarily become parties, then the other party
may suggest the death on the record ; and there-
upon, on motion, obtain an order, that unless such
representatives shall become parties within the first
ten days of the ensuing term, the party moving for
such order, if defendant in error, shall be entitled to .
have the writ of error or appeal dismissed ; and if
the party so moving shall be plaintiff in error, he
shall be entitled to open the record, and on hearing,
have the same reversed, if it be erroneous. Pro-
vided, however, that a copy of every such order shall
be printed in some newspaper at the seat of govern* ,-
meat, in which the laws of the United States shall
be printed by authority, three successive weeks, at
least sixty days before the beginning of the term of
the Supreme Court then next ensuing.

RULE XXXII.

In all cases where a writ of error, or an appeal,
shall be brought to this Court, from any judgment
or decree rendered thirty days before the term to
which such writ of error or appeal shall be returna-
ble; it shall be the duty of the plaintiff in error, or
appellant, as the case may be, to docket the cause,
and file the record thereof with the clerk of this
Court, within the first six days of the term ; on fai-

GENERAL RULES. vii

lure to do which, the defendant in error, or appellee,
as the case may be, may docket the cause, and file a
copy of the record with the clerk, and thereupon the
cause shall stand for trial in like manner, as if the
record had been duly filed within the first six days
of the term ; or at his option, he may have the cause
docketed and dismissed upon producing a certificate
from the clerk of the Court wherein the judgment
or decree was rendered, stating the cause, and certi-
fying, that such writ of error or appeal had been
duly sued out and allowed.

TABLE

THE NAMES OF THE CASES

REPORTED IN THIS VOLUME.

The Amiable Isabella, [Prize.]

Anderson v. Dunn, [Constitutional Law.]

B
Bnssard v. Levering, [Bills of Exchange.]
Beall, (Lindenberger v.) [Promissory Notes.]
Barber, (Randolph v.) [Practice.]
Bryan, (Young v.) [Practice.]
The Bello Corrunes, [Prize.]
Blake, (Hughes v.) [Chancery.]
Bartle v. Coleman, [Local Law. Practice.]
Bowie v. Henderson, [Local Law.]
Brashier v. Gratz, [Chancery.]
Bowmar, (Preston v.) [Local Law.]

i
204

102
104
128
146
152
453
475
514
528
580

The Collector, [Instance Court.]

La Conception, [Prize.] .

Cohens v. Virginia, [Constitutional Law.]

Coleman, (Bartle v.) [Local Law. Practice.]

Clark v. Graham, [Local Law.]

194
235
264
475
577

x TABLE OF CASES.

The Corporation of Georgetown, (Goazler v.) [Local

Law.] ..J.... 60S

Dunn, (Anderson v.) [Constitutional Law.] 204

Daniel, (The United States v.) [Practice.] . 542

Farmers and Mechanics' Bank v. Smith, [Constitu-
tional Law.] ♦ * . • 131

The Fulton Steam Boat Company, (Sullivan v.) [Prac-
tice.] 450

Faxon, (The Mutual Assurance Society v.) [Local

Law.] 606*

Green v. Watkins, [Practice.] . . 260

Gibbons v. Ogden, [Practice.] , . . 448

dratz v. Prevost, [Chancery.] . 481.

Gratz, (Brashier v.) [Chancery.] . . ^28

Graham, (Clark v.) [Local Law.] • . . 577

Goszler v. The Corporation of Georgetown; [Local

Law.] 593

Hopkins v. Lee, [Chancery. Common Law.] 109

Holltngsworth, (Willinks v.) [Common Law.} . , 240

Hughes v. Blake, [Chancery.} .... 453

Henderson, (Bowie v.) [Local Law.] . . 514

J
The Jonqmlle, [Practice.} 452

K
Kerr v. Watts, [Chancery. Local Law.] . ♦ 550

Levering, f Bnssard v.) [Bills or Exchange.] . 102

Liodenberger v. Beall, [Promissory Notes.} 10*

TABLE OF CASES. si

Lee, (Hopkins v.) [Chancery, Common Law.] 109

Leeds v. The Marine Insurance Company, [Chancery.] 665

The Mechanics' Bank v. Withers, [Local Law. Prac-
tice.] 106

Mayhew v. Thatcher, [Constitutional Law. Local

Law.] 189

The Marine insurance Company, (Leeds *.) [Chancery.] 666

SPCIting v. Silliman, [Constitutional Law.] 698

The Mutual Assurance Society v. Faxon, [Local Law.] 606

N
The Nuera Anna and Liebre, [Prize.] 193

O
Ogden, (Gibbons v.) [Practice.] .... 446
Otis v. Walter, [Construction of Statute.] 683

Powell, (Thatcher v.) [Local Law.] . 119

Prevost v. Gratz, [Chancery.] . 481

Preston v. Bowmar, [Local Law.] 680

Rapdolpb v. Barber, [Practice,] .... 128
The Robert Edwards, [Instance Court.] . 187

Smith, (Farmers and Mechanics' Bank v.) [Constitu-
tional Law.] 131

Smith v. The Universal Insurance Company, [Insu-
rance.] . . . . . . . 177

Sullivan v. The Fulton Steam Boat Company, [Prac-
tice.] .450

Spring v. The South Carolina Insurance Company,

[Practice.] . . . .619

SiDiman, (M* Clung v.) [Constitutional Law.] . 698

xii TABLE OF GASES.

Thatcher v. Powell, [Local Law.] . 119
Jhatcher, (Mayhewv.) [Constitutional Law. Lo-
cal Law.] * 129

United States v. .Williams, [Construction of Statute.] 135
The Universal Insurance Company, (Smith v.) [Insu-
rance.] 177

The United States v. Six Packages of Goods. [In-
stance Court.] 520

United States v. Daniel, [Practice.] .... 542

The Union Bank u. Hyde, [Promissory Notes.] • 572

V
Virginia, (Cohens v.) [Constitutional Law.] • 264

W
Withers,. (The Mechanics' Bank v.) [Local Law.

Practice.] 106

Wilkins, (United States v.) [Construction of Statute.] 135

Willinkfi v. H oil ings worth, [Common Law.] 240

Watkins, (Green v.) [Practice.] .... 260

Watts, (Kerr v.) [Chancery. Local Law.] . 550

Walter, (Otis v.) [Construction op Statute.] . 583

Y
Young v- Bryan, [Practice.] . . 146

REPORTS

THE DECISIONS

IN THE

SUPREME COURT OF THE UNITED STATES.

FEBRUARY TERM, 1821.

(Prize.)

The Amiable Isabella, Munos, Claimant.

Whether the capture is made by a duly commissioned captor, or not, is
a question between the Government and the captor, with which the
claimant has nothing to do.

If the capture be made by a non-commissioned captor, the Government
may contest the right of the captor after a decree of condemnation,
and before a distribution of the prize proceeds ; and the condemna-
tion must be to the Government.

The 17th article of the Spanish treaty of 1795, so for as it purports to
give any effect to passports, is imperfect and inoperative, in conse-
quence of the omission to annex the form of passport to the treaty.

Qu&re — Whether, if the form bad been annexed, and the passport
were obtained by fraud and upon false suggestions, it would hare
the conclusive effect attributed to it by the treaty ?

Quetre — Whether sailing under enemy's convoy be a substantive
cause of condemnation ?

Br the Spanish treaty of 1795, free ships make free good*;
but the form of the passport, by which the freedom of the
ship was to have been conclusively established, never having been
duly annexed to the treaty, the proprietary interest of the ship is to
Vol VI. 1

2 CA8ES IN THE SUPREME COURT

1821. ** P1^^^ according to the ordinary rules of the Prise Court, and if

v,/W/ thus shewn to he Spanish, will protect the cargo on hoard, to whora-

The Amiahle soever the latter may belong.

Isabella. g? the ^^ 0f^e p^ze Court, the onus proband* of a neutral interest

rests on the claimant.

The evidence to acquit or condemn, must come, in the first instance,

from the ship's papers, and the examination of the captured persons.

Where these are not satisfactory, farther proof may be admitted, if the

claimant has not forfeited his right to It by a breach of good faith.
On the production of farther proof, if the neutrality of the property is

not established beyond reasonable doubt, condemnation follows.
The assertion of a false claim, in whole or in part, by an agent, or in
connivance with the real owner, is a substantive came of condem-
nation.

Appeal from the Circuit Court of North Caro-
lina.

This was the case of a ship and cargo, sailing un-
der Spanish colours, and captured by the privateer
Roger, Quarles, master," on an ostensible voyage

a As the form of the commission issued to the privateer, hi
this case, is one of the points discussed in the argument, it is
thought necessary to insert it.

James Madison, President of the United States of America, f*
all who shall see these presents, greeting:

Be it known, that in pursuance of an act of Congress, passed
on the 26th day of June, one thousand eight hundred and
twelve, I have commissioned, and by these presents do com-
mission, the private armed schooner called the Roger, of the
burthen of 184 tons, or thereabouts, owned by Thomas E. Gary,
Hy. Gary, James B. Cogbill & Co. Brogg & Jones, Hannon &
High, Robert Ritchie, Robert Birchett, John Wright, Wm. C.
Boswell, Samuel Turner, John G. Heslop, Wm. & Charles
Carling, Thomas Shoe, Richard B. Butte, Richard Drummond,
lattlebury Estambuck, John Davis, Spencer Drummond, Peter
Nestell, and Roger Quarles, mounting fourteen carriage guns,
and navigated by ninety men, hereby authorizing Captain ,

OF THE UNITED STATES. 4

from Havana to Hamburg, but really destined for 1821.
London, or with an alternative destination, and or- T^f2misWe
dera to touch in England for information as to mar-
kets, and further instructions. The ship sailed from
the Havana, on the 24th of November, 1814, under

and John Davis, Lieutenant of the said Schooner Roger, and the
other officers and crew thereof, to subdue, seize, and take any
armed or unarmed British vessel, public or private, which
shall be found in the jurisdictional limits of the United States,
or elsewhere, on the high seas, or within the waters of the
British dominions ; and such captured vessel, with her apparel,
guns and appurtenances, and the goods or effects which shall
be found on board the same, together with all the British per-
sons and others,who shall be found acting on board, to bring
within some port of the United States ; and also to retake any
vessels, goods, and effects, of the people of the United States,
which may have been captured by any British armed vessels,
in order that proceedings may be bad concerning such capture
or recapture, in due form of law, and as to right and justice
shall appertain. The said is

further authorized to detain, seize, and take all vessels and
effects, to whomsoever belonging, which shall be liable thereto,
according to the law of nations, and the rights of the United
States, as a power at war, and to bring the same within seme
port of the United States, in order that due proceedings may be
had thereon— this commission to continue in force during the
pleasure of the President of the United States, for the time
being.

Given under my hand, and the seal of the United States of
America, at the City of Washington, the 24th day of
April, in the year of our Lord one thousand eight hun-
dred and thirteen, and„of the Independence of the said
States the thirty»seventh.
(Signed) JAMES MADISON.

fey the President,
(Signed) James Monroe, Secretary of State.

4 CASES IN THE SUPREME COURT

1821. convoy of the British frigate later, with which she
The Amiable Parted company on the 1st of December, the frigate
Isabella, having gone in chace of an American privateer ; and
on the 3d of December, was captured by the priva-
teer Roger, and carried into Wilmington, North Ca-
rolina, for adjudication. The ship and cargo were
condemned as prize of war in the District Court of
North Carolina, and the sentence was, after the
admission of farther proof in the Circuit Court, af-
firmed by that Court. An appeal was then allowed
td this Court, with permission to introduce new
proof here, if this Court should choose to receive it
The original evidence consisted of the papers
found on board the captured vessel, and delivered up
to the captors, by the master, at the time of the cap-
ture ; and of certain other documents afterwards
found concealed on board, or in the possession of
Rahlives, the supercargo, or of one Masuco, alias
Burr, a passenger on board the Isabella. Some of
the ship's papers were mutilated, and . attempted to
be destroyed, and others were thrown overboard,
and spoliated.

The paper of which the following is a transla-
tion, was the only one delivered up by the master, at
the time of the capture : a Don Jose Sedano, Admi-
nistrator General of the Royal Revenues of this
port of Havana, in the island of Cuba, &c. certify
that by authority and knowledge of the General
Administrator of the Revenues under my charge,
permission has been given to ship in the Spanish
ship called the Isabel, Captain Don Francisco Ca-
cho, with destination for Hamburg, viz, :

OF THE UNITED STATES. 5

Don Alonzo Benigno Munos, isai.
registered 00 the day of this date, ^^le
six hundred and seventy-six boxes k*t*Ua.
brown sugar, two hundred and
Mia 676 twenty-eight boxes white ditto,

M + 201 a 228 and two hundred quintals dye-
1 a 40 wood, which he has shipped on
his own account and risk, con-
signed to Don Juan Carlos Rah-
lives, and paid 6290, and that it
may so appear, 1 sign the present*
(Signed) Sedano."

Havana, 10th Nov. 1814.

Among the papers found on board, and brought
into the Registry, with an explanation of the
circumstances under which they were discovered,
were,

(1.) A passport or license granted by the Governor
and Captain General of the island of Cuba, of which
the following is a translation :

Number 94.

PROVINCE OF THE HAVANA.

Don Juan Ruiz de Apodaca y Eliza, President,
Governor, Captain General of the place of Havana,
and island of Cuba, Commandant General of the
Naval Forces of the Apostedero, &c &c.

For want of royal passports, I despatch this do-
cument in favour of Captain Don Francisco Cacho,
inhabitant of the city of Havana, that with his Spa-

6 CASES IN THE SUPREME COURT

i8*i. lysh merchant ship called Ataabk Isabel, of the bur-
.Jj^riaMa l^eI1 °f 208^ tons, he may sail from this port, with
cargo and register of free trade, and proceed to that
of Hamburg, there to trade, and return to his port of
departure, with the express condition of performing
his voyage outward and inward, directly to the fixed
places of his destination, without deviating, or touch*
ing at any port, national or foreign, in the islands or
continent of the Indies, unless compelled by inevita-
ble accident.

Gratis. (Signed) Apopaca.

Sebastian de la Cadena.*

a The original of this passport, or license, is as follows :
Numero 94.
Profincia de la Habana.

D. Juan Ruiz de Apodaea y Eliza, Presidente, Gobernador,
Capitan General, de la plaza de la Habana, 6 Isla de Cuba, y
Comandante General de Marina del Apostadero, &c. &c.

A' felta de Reales Pasaportes ezpido este documento 6 favor
del Capitan Dn. Franc. Cacho Vecino de esta Ciudad de la Ha-
bana para que con su Fragata mercantile Espanola nombada
Amable Ysabel de porte de 208J

toneladas, pueda salir de este Puerto, con carga y regtstro del
libre comercio, y transferirse al de Hambutgo
para comerciar en el, y restituirse al de su salida con expresa
condicion, de hacer su derrota de ida y vuelta directamente a
los senalados parages de su destioo sin eztraviarse ni hacer ar-
ribada a Puertos nacionales, 4 extrangeros, en islas, 6 tierra
firme de Indias * menos de verse obligado de accidentes de
otra suerte no remediables. Habana, diez de Novembre de
mil ocbocientoz catorze.

Gratis. (Signed) Apodaca.

Sebastian de la Cadbva.

OP THE UNITED STATES. 7

(2.) A clearance granted by Don Pedro Acevido, ltn.
captain of the port of Havana, permitting the said ^^^^
Cacho " to proceed with the Spanish ship La Ama- Isabella
hie Isabel, from this port to England," with a mus-
ter roll of the officers and crew annexed* (&) A
letter of instructions from Munos, the claimant,
to Cacho, of which the following is a translation :

Havana, 10th Nov. 1814.

" Don Francisco Cacho.
"Sir,

4( Intrusted as you are with my ship La Ama-
ble Isabel, which sails bound for Hamburg, or some
other port of that continent, or for those of England,
1 hope that you will perform your duty with the ex-
actness you have always used, and which was my
motive for making choice of you. Consequently I
will omit all further advice, particularly as there goes
in the vessel the supercargo, Don Juan Rahlives,
with my full power and instructions. You will ob-
serve all his directions as if they were dictated by
myself. Wishing you a prosperous voyage, &c

(Signed) Munos.

(4) Articles of agreement between Munos and
the master and crew of the ship. (5.) A general
procuration from Munos to one Von Harten of Lon-
don, dated at Havana, May 29th, 1812, with a
substitution by the latter to Rahlives the supercargo,
* executed at London. (6.) A letter from one Tie-
son, dated London, November 4th, 1813, to his bro-
ther F. Tieson, at Rio Janiero, introducing Rahlives,

8 CASES IN THE SUPREME COURT

1821. as the conductor of certain commercial operations,
>**v^ which he had concerted with several friends, refer-
Isabeiia. ring his correspondent to Rahlives himself for the
details. (7.) A letter from one Rhodes, dated Lon-
don, to Messrs. Glover & Co. at Rio Janeiro, intro-
ducing Rahlives, who the writer states a goes as su-
percargo in the ship Isis, and acts for Mr. John Go-
ble of Havana, and Mr. Von Harten of London,"
&c. (8.) A letter from Hawkes & Malloret, dated
Liverpool, October 28th, 1808, to Brown & Co., at
Rio Janiero, introducing Rahlives as " particularly
connected with our intimate and respectable friend
Mr. George Von Harten of London, and John Go-
bel of Havanna, on whose behalf he will probably
visit you very shortly. It is probable Mr. Rahlives
may entrust to your management some transactions
for account of said friends, and others, and we beg
. to assure you we feel convinced every satisfaction
will result from such, business as he may have to con-
duct." (9.) The following circular : " Havana,
1st May, 1812. On the 15th last May, we took the
liberty of addressing our friends from London, re-
questing their countenance to an establishment we
intended to form in this city under the firm of Von
Harten, Gobel & Co. We now have the satisfaction
to inform you of our complete success in organizing
and consolidating the same, and that we are in every
respect enabled to procure to our correspondents all
those advantages which may result from intelligence^
activity, and the most respectable connections in thup*
islaud. Political considerations, however, induce us
to carry on our affairs for the future under the sole

OF THE UNITED STATES. 9

same and firm of Mr. John Gobel, who is perma- Wi.
jiemljr to reside in this country ," &c. (10.) An acr ^Jf^mWbL
count of sales, dated Havana, November 16th, 1814, lobelia.
signed by J. Gobel, of the cargo of the English brig
Portsea, received from Rio de Janeiro, on account
of Messrs. Brown, Weston & Co. and of Rah lives,
^mounting to 20,313 dollars net proceeds, leaving to
the credit of Rahlives, in Gobel's bands, half of that
Bum. (11.) A charter party, executed at Rio de
Janeiro, May 1 1th, 1 8 14, between Weston and Gobel,
letting to him the Portsea, and consigning the cargo
to the charterer. (12.) The following letter from
Munos to Rahlives: " Havana, 10th Nov. 1814.
Sir, I enclose you invoice and bill of lading shew*
ing to have shipped in my ship called La Amable
Isabel, Capt. Don Francisco Cacho, 1,104 boxes of
sugar, and 40 half boxes of ditto, and 200 quintals
of dye-wood, the principal amount of which and
charges amounts to $60,642 3, which cargo con-
signed to you, you will please to take charge of on
your arrival at Hamburg, or at any other port you
may find convenient to go, proceeding to sell it on
the most advantageous terms you can obtain, that
with the proceeds you may make the returns accord-
ing to the instructions 1 have verbally communicated
to you. In like manner I recommend to you, and
place under your care, my said vessel, in order that
the adventure may have the most favourable termi-
nation, to which end I have given definitive orders
to the Captain, Don Francisco Cacho, that he may
observe the instructions you may communicate to
him in my name. As I am so well satisfied with
Vol. VI. 2

10 CASES IN THE SUPREME COURT

1621. your care and diligence, and the friendship my house
^f^mlabie enterta*ns f°r y°u> I shall omit any further advice,
Isabella, wishing you a prosperous voyage, and that you may
duly advise me of your proceedings, and communi-
cate such instructions as you may think fit. Yours,
&c." (13.) A bili of lading signed by the master,
Cacho, acknowledging the receipt of the cargo, and
engaging to deliver it to Rahlives at Hamburg, or at
the port where his register might be verified. (14.)
A manifest, entitled " Manifest of the cargo of the
" Spanish ship La Amable Isabel, in its voyage from
this port of Havana to that of London ;" and sign-
ed by the master; being stated in the margin that he
had signed bills of lading therefor " to Don Alonzo
Benigno Munos, which he has registered on his own
account and risk, and to the consignment of Horace
Solly of London."

Among the mutilated papers found on board were,
(1.) various accounts between Rahlives and F.Thi-
eson. (2.) An invoice of jerked beef and tallow,
shipped from Rio de Janeiro to Havana. (3.) Ano-
ther invoice of the same, " for account and risk of
Mr. Alonzo Benigno Munos at Havana,9' per brig
Isis, Capt. Brenmer, amounting to 22,371 dollars.
(4) Invoice of sugars, &c shipped on board the Isis
at Havana by order of Rahlives, signed by Gobel,
and amounting to 60,671 dollars. (5.) Another in-
voice of the same, shipped on board the Isis, u for
Falmouth aod a market, to the orders of G. Van
Harten, Esq. in London," signed by Rahlives, and
various accounts between the different parties.

OP THE UNITED STATES. 11

A claim was given in for the ship and cargo, as the issi*
property of Don Alonzo Benigno Munos, by Rah- y^^^*
lives, the supercargo, as agent for the alleged owner ; lobelia.
and the captured persons were examined on the
standing interrogatories.

Upon the order for farther proof, the affidavits of
the claimant and his clerks, to the proprietary inte-
rest of the ship and cargo, in him, were produced,
and the proceedings before the tribunal of the Con-
suiado, at the Havana, under which the ship, which
had arrived at that port from New-Providence, was
sold under the bottomry bond alleged to be given
for repairs by one John Cook, to the claimant, and
was naturalized as a Spanish vessel. A great mass
of testimony was also produced, tending, (among
other things,) to show that the claimant, who was
father-in-law of Gobel, had not been actively en-
gaged in trade for many years before this shipment
was made; and that Gobel, not being a Spanish
subject, all his foreign business, and his transactions
with the custom house, had constantly been carried
on in the name of Munos.

Mr. Gaston, for the appellant and claimant, ar- '*Mp»
gued, 1. that the prize allegation, in this case, ought
to be dismissed, because the libellants had shown no
lawful authority to make the capture in question,
and, therefore, condemnation could not be pronoun-
ced in favour of the captors ; but, even if the pro-
prietary interest were proved to be enemy's, it must
be condemned as a droit of admiralty to the use of
the government. It is a well established principle

12 CASES IN THE SUPREME COURT

i82i. of the law of prize, that the captors must short an
J^y^f{ authority to capture as prize, and exhibit their title
IfebeUa. deeds." Here the commission is issued to the vessel
itself, without naming the commander who is to di-
rect her operations as a cruizer. The commander*
by whotn the seizure was actually made, bad no
commission or authority whatever, other than what
was delegated to him by the owners of the vessel*
The capture is, therefore, null, so far as respects the
captors. On gfeneral principles, no persons can
rightfully carry on war but those who have a par-
ticular authority from the sovereign power of the
state* With regard to private armed vessels, unless
they have a public commission, their acts are abso*
lutely unlawful, and all on board may be treated as
pirates.* At all events, they can derive no title un-
der captures thus made, unless they have a coimnis*
sion. In hello parta cedunt rmpublica ; and all the
rights of prize are derived frotfi the grant of the
sovereign power. Nor can the commission be issu-
ed to the inanimate machine, it must be to the or-
ganized association of human beings who are to
control and direct its force. Without a head to con-
trol.and govern them, such an association would be
n6thing but a band of pirates. The interests of
mankind will not tolerate the existence of such a
monster as a ship of war without a lawful comman-
der. Even when thus governed, they require to be
watched with vigilance,, and controlled by the go*
vernment, least they involve the nation with its al-

a The Melomasne, 5 Rob. 43.

& VatUl, Droit des Gens, /. 3. c. 15. t. 226.

OF THE UNITED STATES. 13

lies, or with neutrals." For this purpose it is neces- issi.
sary that the government should designate and com- Jjf^^M
mission their officers. So strict is the doctrine of is&beiit.
the Court of Admiralty on this subject, that a capture
made by a public commissioned ship, the command-
er not being on board at the time, is regarded as if
made without a commission.6 So, also, by our own
law, the act declaring war, June 1 8th, 1812, c. 425.,
authorises the President to issue commissions or let-
ters of marque and reprisal, in such form as he shall
think proper to dictate : and in the form which he
has actually prescribed, the names of the captain
and lieutenant are required to be inserted. The
Prize Act of June 26th, 1812, c. 430., imposes very
strict duties upon the commander, which he is to
perform personally, and cannot devolve upon an-
other. He is, among other things, to give bond, and
is made responsible for his own misconduct and that
of the crew ; is to receive and execute the President's
instructions ; is to keep a journal of the ship's trans-
actions ; and by his personal negligence or miscon-
duct, may forfeit the commission, and the rights of
prize derived under k. Most clearly the Govern-
ment has a right to judge of the merits and qualifi-
cations of the person to be invested with a trust so
high and important. But the Government has not
delegated k jto the captors, in the present case, and,
therefore, they have no right to demand condemna-
tion to their use. Nor has the Government itself

a The Thomas Gibbons, 8 Cranch, 4*1.

6 The Charlotte, b Rob. 251. 4

14 CASES IN THE SUPREME COURT

1821. interposed ; nor, indeed, can it interpose, to require
J^y^f. condemnation to its own use, until the preliminary
Isabella, question of prize or no prize is determined, and the
Court is about to distribute the proceeds/ No final
decree of condemnation can, therefore, now be pro-
nounced.

2. The testimony furnished by the papers found
on board the captured vessel, is such, as, according
to the treaty between the United States and Spain
of 1 795, is conclusive on the question, and entitles
the claimant to immediate restitution. This treaty
forms a conventional law on the subject of neutral
commerce, essentially different from the general law
on the same subject.1' By the 15th article it is sti-
pulated, that the ships of either nation may sail from
any port to those of a country which may be at war
with either or both nations, and may go to neutral
places, or to other enemy ports ; and that every ar-
ticle on board, except contraband, to whomsoever
belonging, shall be free. In order to carry into
effect this stipulation for the unlimited liberty of
commerce, and that free ships shall make free goods,
it is provided bj the 17th article, that the vessel
shall be furnished with a passport expressing her
national character, and with certificates to show,
that the cargo is not contraband. To this passport
a conclusive effect is attributed. It establishes the
national character of the ship ; and that being pro-

a The Thomas Gibbons, SCranch, 421.

b For the provisions of this treaty, vide Appendix, Note

OF THE UNITED STATES. 1£

Ted, renders it immaterial to inquire respecting the 1821.
cargo, except so far as to ascertain by the certificate, ^^^^
that it is not contraband. The 18th article requires Isabella.
the cruisers of either party, meeting the merchant
vessels of the other upon the high seas, to remain out
of cannon shot, and only authorises them to send on
board two or three men, and if the passport be ex-
hibited, the vessel is not to be molested ; and by the
17th article, if the prescribed documents are not ex-
hibited, she may be sent in for adjudication, and con-
demned as prize, unless testimony entirely equivalent
shall be produced. The ship now in question, was
furnished with such a passport and certificate as the
treaty prescribes. It is true, that the form of pass-
port, intended to have been annexed to the treaty,
never was, in fact, annexed by the negociators, ow-
ing to accident or negligence, or some other cause
which we cannot now explain. We are not, how-
ever, without the means of ascertaining what will
satisfy the requisitions of the treaty. A passport,
or sea letter, is a well known document in the usage
of maritime commerce, and is defined to be a per-
mission from a neutral State to the. master of a ship
to proceed on his proposed voyage, usually con-
taining his name and residence, and the name,
property, tonnage, and destination of the ship/
Although it evidences the permission of the State
to navigate the seas, yet it does not, therefore, follow,
that it must issue directly from the supreme power

a Marshall on Ins, 406.

16 CASES IN THE SUPREME COURT

let l. of the State ; and some authority ought to be shown
-^y^Ku to suPP°rt 8UC'1 a position. This erroneous notion,
probably, arises from the practice of our own coon-
try, which is different from that of all other nations.
Previous to the year 1793, no other documents were
furnished to the merchant vessels of the United
States but the certificate of registry and clearance ;
but the depredations upon our commerce having
commenced with the European war which broke
out in that year, a form of sea letter was devised,
and to give it greater effect, was signed by the Pre-
sident. On the 28th of November, 1795, a treaty
was made with Algiers, by which a passport was to
protect our vessels from capture by Algerine cruisers.
By the act of the 1st of June, 1796, c. 339. Con-
gress authorised the Secretary of State to prepare a
form, which, when approved by the President, should
be the form of the passport. Neither the treaty nor
the law required the President's signature, but the
form prepared was signed by the President, as the
sea letter had been. But this, our peculiar practice,
forms no rule of conduct obligatory on others ; and
will not authorize us to give a more restricted mean-
ing to the term used in a treaty than the general
usage of nations will warrant. The word passport,'
thus used, is taken from the same word, signifying a
permission given to individuals to remove from one

a " Pbssaporte. Patseport. Lettre ou brevet d*an prince ou
d'uo commandant pour donner la liberie1 de voyager, d'entrer
et de sortir librement de ses terres. Fides pvblica." Sobrino,
Nouv. Diet. Espagnol, Francais, et Latin.

OF THE UNITED STATES. 1?

place to another, and the documents are analogous. iaai.
Fattel states, that, " like every other act of supreme ^fY^L
cognisance, all safe-conducts or passports flow from Isabella.
the sovereign authority ; but the Prince may dele-
gate to his officers the power of furnishing them,
and with this they are invested, either by express
commission, or in consequence of the nature of their
functions. A General of an army,#from the nature
of his post, can grant them ; and as they are de-
rived, though mediately, from the same Prince, all
his generals are bound to respect them."* So, also,
Blackstone speaks of the offence of violating pass-
ports, or safe-conducts, granted by the King or his
Ambassadors.™ It is then incidental to ihe commis-
sion of an Admiral or General, or public Minister, to
issue these documents of protection for ' persons or
property/ By the usage of all commercial coun-
tries, tbey are issued by the superior officers super-
intending the marine affairs of the kingdom, pro-
vince, city, or colony, where granted, and as repre-
senting the Sovereign in those places. In France,
they have always been issued \>y the Admiral .
of France, except * during the revolution, when
they were issued by the Minister of Marine/

a Vattel, Droit des Gens, L 3. c. 17. s. 265. et sep

b 4 Bl. Comm. 68.

e Wheat. Capt. 59.

d " Passeport. C'est tine perminion de VAmiral pour Toy-
ager en surete* et €tre reconcile par toot. C'est stir ce passe*
port que les bitimens de commerce naviguent." EncycUp.
Meth. art. Marine.

Vol. .VI 3

IS OASES IN THE SUPREME COURT m

1821. In the King of Prussia's ordinance of neutrality,
■J^rikbto P888!*01*8 anc* sea-letters are spoken of as- issuing
baMia. from Admiralties, Maritime Colleges, or magistrates
of cities/ And in the celebrated answer to the
Prussian Exposition des Motifs, it is said, that until
the year 1746, the usual document was. a certificate
from the Admiralty that the ship was Prussian. Af-
terwards a pass under the royal seal of the regency
of Pomerania at Stettin was used.' In our treaty
with Holland, the forta of a sea letter is given,
which is in the name of the burgomasters and re-
gents of the city, acting under an ordinance of the
States General. In England, such documents are
issued by the Lords Commissioners of the Admi-
ralty, as is shown by the papers in the case of the
Nereide in this Court :c and on foreign stations, they
may be issued by the Admirals commanding those
stations. In the famous Black Book of the Admi-
ralty, we find it laid down, that all intercourse with
the enemy is prohibited, unless under a special license
from the King or his Admiral.4 In the case of the
ships taken at Genoa,' Sir W. Scott declares, that
Lord Keith, as Admiral commanding the expedition,
had a right to grant passports to protect the ships
sailing under them. And in this Court, the licenses '
issued by Admiral Sawyer, and countersigned by a

a 2 Azuni,Appx. Ao. 9. p. 401. Johnton's Transl.
b Wheat. CapU Appx. JVo. /. p. 334. Report of Sir Geoff*
Lee, <frc. Fide Appendix, NoteTfo. II.
c 9 Cranch, 388.
d Wheat. Capt. 159.
« 4 Hob. 317.

OF THE UNITED STATES. 19

British Consul, were determined to be passports mi.
which would protect against British capture.* At ^Jj^^nu*
Gibraltar, these documents are issued in the name of, Isabella.
and signed hy, the Commissioners of the Admiralty*
at that place.6 As to the usage of Spain, it appears,
by a royal passport, found on board the Isabella, and '

issued for another ship called the Clara, to be usu-
ally issued at home by the Secretary of the Marine
in the King's name ; but it also appears by an in-
dorsement on this very paper, (hat the Spanish com-
mandants of foreign stations, or Apostaderos, may
alter such passports, and grant liberty to change the
course of the voyage. And they may also issue ori-
ginal passports, in their own name, where there is a
deficiency of royal passports, and the vessel has not
been previously documented. Such is the passport
Which was issued to the Isabella in the present case.
The power to issue such documents of protection, is
necessarily incident to the vast authorities conferred
on the Spanish colonial governors ; and the case of
die British ship of war Eliza, which was compelled
to enter the port of Havana in distress, in time of
war, and to which the Captain General, after re-
lieving her wants, gave a passport to protect her
from capture, is an example of the exercise of the
power in question highly honourable to the generosity
of the Spanish character/ The treaty under which

a The Julia, 8 Crunch, 181. The Aurora, 8 Craneh, 203.
The Hiram, 8 Cranch, 444. The Ariadne, 2 Wheat. Rep. 143.
b Reeve? Law of Skip. Appx. No. 9, in fin.
c Raynal fflst. torn. 7. p. 466.

20 CASES IN THE SUPREME COURT

I82i. protection is now claimed, was conceived ia the spi*
J?*7^Xi Hit of that benevolent policy so Ibng cherished by the
inbeUa. United States, and which Spain has reciprocated*
It has for its object to limit the range of warfare on
the high seas, and to extend the immunities of the
beutral flag. In this spirit it ought to be construed*
A comparison of its provisions with those of other
conventions for the same object, will show the cor-
rectness of the interpretation for which We contend*
In the French treaty of 1 778," which was the foreran*
ner of the armed neutrality of 1 780, a passport or sea
letter in a certain form is provided to protect the ship*
But there is nothing from which it can be inferred that
.this document is to issue from the supreme executive
of the respective nations. To show how subordinate a
consideration was that of form, it is deserving of re-
mark, that the form actually annexed to the treaty,
omits a circumstance which the text of the treaty
expressly requires — " the place of residence of the
master." So that a passport precisely correspond-
ing with the form annexed, was adjudged by the
Court of K. B. in England, who had not seen the
annexed form, to be substantially defective in this
respect, and thus to falsify the warranty of neutra-
lity in a policy of insurance.6 So the treaty with
Holland of 1782,' contains analogous stipulations
with those of the Spanish treaty. It gives the form

a For the provisions of this treaty, vide Appendix, Note
No. III.

b Baring v. Chr'wtie, 5 Eatt's Rep. 398.

c For the provisions of thit treaty, see App*ironr, Note
No. III.

OP THE UNITED STATES. 21

of a passport, and of a sea letter, which are after- 1*21.
Wards spoken of as the same, or at least, as equi- rj^^^bi
pollent documents. The passport does not show by Isabella*
whom it is to be signed ; but it shows, that it may
bfe issued by individuals signing their own names,
and affixing their own private seals, and that it was
not thought necessary, that it should issue in the
name of the chief magistrate ; and the sea letter is
unequivocally to be issued by an authority less than
the supreme power of Che State. The treaty of
1783, with Sweden/ repeats the same stipulations
of the unlimited liberty of commerce, and that free
ships should make free goods ; and to prevent dis-
putes, a passport or sea letter is to be furnished,
showing that the vessel belongs to a subject, which
is to protect from all further inquiry, and is to be
made out in " good form." Here the form is avow-
edly left to the exercise of an honest discretion on
each side. In the treaty with Prussia, of 1785,* the
same conclusive effect is attributed to the sea letter
or passport, the form of which was to be subsequent-
ly concerted by the contracting parties. From these
die treaty wkh Spain was copied, whose Govern-
ment gloried in being the first among the southern
powers of Europe that acceded to the principles of
die armed neutrality.0 One of the leading princi-
ples asserted by that confederacy, went to exclude

a For the provisions of this treaty, see Appendix, Note

No. in.

6 For its provisions, see Aitehihx, 16.
c ZAzuni, Appendix, No. 31.

22 CASES IN THE SUPREME COURT

1821. from the jurisdiction of the belligerent Prize Courts
The Amiable w'iatever was done under the neutral flag, and to
iiabeiia. render, it matter of negociation between State and
State. A national contract made to carry into effect
this principle, is to be construed according to its in-
tention and spirit, which meant to rely upon the jus-
tice and honour of both nations, that neither would
impart to enemy vessels the immunities which were
intended to be confined to neutral property. En-
lightened views of interest would induce the neutral
State not to permit any but its own subjects to avail
themselves of the concession ; and though every pos-
sible abuse might not be prevented, yet cases of
fraud would rarely occur, and the evils produced
would be far outweighed by the immense importance
of the general security of commerce, and the con-
sequent mitigation of the evils of war. The autho-
rity of the Spanish Government, to issue a passport
certifying the proprietary interest in the vessels of
its own subjects is unquestionable, and the local law
and usage must determine its form, and the authority
by which it is to be issued.

3. But supposing the passport produced not to be
precisely such as the treaty intended, yet it is insist-
ed, that, with the other documents, it furnishes tes-
timony " entirely equivalent," according to the ex-
pression used in the 17th article. It is important to
fix the precise meaning of the last clause of that article.
The preceding clauses stipulated, that the ship shall
have a passport to show that she belongs to the
neutral State, and a certificate to show that her cargo

OP THE UNITED STATES. 2S

(to whomsoever belonging) is not contraband. By 1821.
the 18th article, if she is furnished with these docu- J^Y^t*
ments, she is to be exempt from all detention or mo- Isabella.
testation. If not furnished with them, she may be
carried in for adjudication, and then must account
lor the omission, and- furnish other testimony, which,
considering all the circumstances, shall be of equal
value with that omitted. Suppose the omission sa-
tisfactorily accounted for: what is the equivalent
testimony required by the treaty ? Most certainly
it is, that which completely proves the same facts
which the omitted documents would have proved.
Even a passport, in due form, does not prpve that
the ship is, in fact, neutral. With whatever formal
solemnities it may be cloathed, it must issue from the
custom bouse of the power by whom it is granted* It
may be issued improperly. The officers authorized to
issue it, may be deceived by fraud and perjury. The
possession of the document only proves the fact that
the property of the ship has been decided to be
neutral by the competent authorities, by those to
whom the sovereign power of the State has entrust-
ed the examination of the question. Their deter-
minations are made conclusive by the treaty, and
import absolute verity, in the same manner as the
solemn judgments of the Courts of justice. If, then>
this document cannot be had, but its absence is ac-
counted for, and other papers are produced, which
however inferior in formal solemnity, unequivocally
prove such a decision by the competent authority of
the neutral State, then this secondary evidence is
completely equivalent to the passport and certificate

24 CASES IN THE SUPREME COURT

1891. provided for in the treaty. This exposition is the
^^^ only one consistent with the spirit of the treaty, and
Isabella, is in furtherance of its avowed object, which was that
the flag should protect the property sailing under it,
if used by authority of the neutral nation* This ex-
position is conformable to the English version of the
treaty, but is absolutely required by the Spanish;
and even if there were any difference of meaning,
we are bound in honour and good faith to adopt the
latter, since Spain has always acted upon it, and has
seldom or never thought it necessary to document
her ships according to. the literal requisitions of the
treaty. Unless this exposition is admitted, the whole
of the clause in question is nugatory. By the uni-
versal law and usage of nations, every captured ves*
sel is at liberty to account for the want of formal
documents/ It would /therefore, have been super-
fluous to insert a provision in the treaty to this effect.
Something more must have been intended by the use
of terms, which are to be found in no other treaty*
In the case now before the Court, the omission of the
required document is fully accounted for by the ac-
tual state of the mother country at the time, and by
the declaration of the colonial Governor when he
granted the substituted.document. This ought to
be considered as equivalent proof, because it is next
in dignity, and approaches very nearly to a level
with the royal passport itself. It is issued by an
officer who is only not King; who would have been
charged with the delivery and control of royal pass-
ports ; who expressly declares, that it was issued in

a The Pizarro, 2 Wheat. Rep. 244.

OP THE UNITED STATES- 2&

Ken of such; and certifies every fact which would lm*
Jkave been stated in a royal passport The other J^T^m*
documents are superadded to that which would
alone have been required, had the formal requisitions
of the treaty been complied with, and are abundant-
ly sufficient to establish the proprietary interest in
the ship. They are supported by the depositions of
the captured crew, who are required by the naviga-
tion laws of Spain to be Spanish subjects, and whose
national character conforms to this requisition.

4. Again. If there be no passport such as is re-
quired by the treaty, and no such equivalent testi-
mony as the treaty provides, still the claim to the
ship is established by evidence such as the law of
nations requires to establish it ; and if the property
of the ship is shown to be Spanish, that is sufficient
to protect the cargo to whomsoever belonging/
She is furnished with all the usual documents, and
none are of a suspicious or irregular character. The y
are supported by the testimony of all the witnesses,
except one ; and he was improperly examined, not
being produced in his regular order, but kept back
until other witnesses had been examined, contrary
to the well-known rule of the Prize Court, which
requires the captors to introduce all the witnesses
in succession-* Even if the proprietary interest in
the cargo should be thought doubtful, that being in-
cluded in the same claim with the ship, will not ne-
cessarily involve both in condemnation ; for, an at-

a The Pizarro, 2 Wheat. Rep. 227,
b The Speculation, 2 Rob. 242. Tha William fc Mary,
4 Rob. 3t2.
Vol. IV. 4

26 CASKS IN THE SUPREME COURT

i82t. tempt to conceal enemy's property only affects the
j^Taitofo "S*11 to father proof/ But we insist that farther
lobelia, proof is not required in this case ; and if the na-
tional character of the ship be established by the ori-
ginal evidence, the conventional law entitles us to
restitution of the cargo, as a matter of course.*

5. Lastly. Supposing the original evidence in the
cause insufficient to entitle the claimant to restitu-
tion, either according to the provisions of the treaty,
or by the general law of nations, it is insisted that
all the difficulties of the case are removed by the
farther proof produced, which establishes the pro-
prietary interest of both ship and cargo as claimed.

Mr. Wheaton, for the captors and respondents,
]• answered the objection taken by the claimant's
counsel to the validity of the commission under
which the capture was made. This is exclusively a
question between the captors and the United States,
The claimant has no persona standi injudicio to as-
sert the rights of the United States, and it is not
until after the determination of the principal ques-
tion of prize or no prize, that the claim of the go-
vernment can be interposed.0 This is not only our
own practice, but is the prize law of France, and
England, and of the whole maritime world." Even

a The Madonna del Burso, 4 Rob.

b The Pizarro, 2 Wheat. Rep 227.

c The Dos Herman os, 2 Wheat. Rep. 94.

d 2 Bro. Civ. <fr Mm. Law, 524. 2 Woodes. LecL 432.
3 Bulstr. Rep. 27. 4 Intl. 152 164/ Zouch. Mm. Juried, c. 4.
p. 101. Comyn's Dig* tit Admiralty E. 3. The Georgian a, 1
Dodson's Rep. 397. The Diligentia, 1 Dodson'e Rep. 403. Falin.

OP THE UNITED STATES. 27

if the present capture be a droit of admiralty, as ta- 1821.
Jcen by non-commissioned captors, that will not in- TJj^^|
validate the capture, if it be of enemy's property, iwbeiia.
This is to be determined after a general decree of con-
demnation is entered, and before a final distribution of
the prize proceeds. If the Government shall interpose
a claim at that stage of the proceedings, it will then
be time enough to consider a question in which the
foreign claimant has no interest or right to interfere.
2. The vessel and cargo in this case are liable to
condemnation as prize of war, having left the Hava-
na with a false destination. The claim sets up an
alternative destination, to an enemy's or a neutral
port; but it is contradicted by the documentary evi-
dence and the depositions of the captured persons.
This false destination is not excusable on the ground
of the necessity of deceiving an enemy by clearing
out for a neutral port Spain was at that time at
peace with all the world, except her revolted colo-
nies ; and both London and Hamburg were equally
neutral ports in respect to the South- American crui-
zers. A false destination under such circumstances
is damnatory, if the case be so infirm as to require
farther proof; because it could only be intended to
conceal enemy interests, and if alternative, it ought /

Co appear to be such on the face of the papers, in or-
der that captors may not be misled.*

Cofnm. I. 3. tit. 9. des Prises, art. 1. Potkier, de ProprUU, No.'
93. Casaregis. Disc. 24. jConsolato del Mare, e. 287.

a The Jtiffrouw Anna, 1 Rob. 125. The Welvaart, 1 Rob.
122. The Nancy, 3 Rob. 1 25. The Mars, 6 Rob. 79. 86. The
Vroaw Hermina, 1 Rob. 1C4.

28 CASES fK THE 8UPREME COURT

lasi. 3. The proofs of proprietary interest, upon the ori*

TbTAmiabia g^al evidence, are not such as to entitle the claimant
Isabeiu. to restitution, without farther proof. As to the ship,
there is no doubt that if bona fide Spanish property,
and documented according to the treaty, she must
not only be restored, but the cargo also must be in*
eluded in the restitution, even if proved to be enemy's
property* But it is insisted that the treaty does not
extend to a fraudulent use of the Spanish flag to co-
ver enemy's property in the ship as well as the cargo/
The passport, even supposing it to be such as the
treaty requires, is falsified by the muster-roll and
other documents; and it was not produced, as the
treaty requires, to the captors, but found on board lif-
ter the capture. Fraud will vitiate even a judgment,
and the most solemn instruments and assurances*
This is a principle of universal law, and it would be
indecent to suppose that Spain countenances such an
improper use of her flag and pass. Is there, then,
that equivalent testimony which the treaty substi-
tutes for the formal passports ? The law very pro-
perly requires the bill of sale to be on board where
the vessel is transferred from the original proprietor.
Even Hubner, the great champion of neutral rights,
admits this to |be the*rule.' But here the vessel is
not Spanish built; yet no bill of sale is found on

a The Minerva, 1 Marriott's Adm. Dec. 235. The Cittad
<3e Lisboa, 6 Rob. 368. The Eendraught, lb. Note (a.) The
Egtern, 2 DM. 36.
b The Welvaart, 1 Rob. 122. ,
c Dela Sou. des Batim. Neulr. Part 1, e. 3. *. 10.

OF THE UNITED STATES. 28

board, and the circumstances strongly point to the 1021.
previous existence of enemy interests in the vessel, Jjf^^jL
which it appears came from New-Providence. The btbeiit.
purchase of enemy's vessels by neutrals is entirely
prohibited by the ordinances of some countries; and
our law regards it as suspicious.* If still continued
to be employed in the enemy's trade, . or under the
control of an enemy, this is deemed a badge of fraud,
and conclusive evidence that there has been no bona
fide transfer/ The ship then is not documented bo-
na fide, as the treaty requires, nor is the substituted
proof equivalent to that for which it is substituted.
The ship, therefore, will not protect the cargo, nor is
the latter so documented as to protect itself, or avoid
being involved in the same fate with the vessel. To
be sure, there are the usual formal documents, and
so there are in every case. But they contradict each
other ; and being fraudulently blended in the same
false claim with the ship, they must be included in
the same condemnation. Both being alleged to be-
long to the same claimant, and he having attempted
to assert a false claim to the ship, the entire claim must
be rejected as a penalty for his fraudulent conduct/
4. But the passport in this case, even supposing
it not to have been fraudently obtained and used, is
not such as the treaty requires, being issued by an
authority incompetent to grant such a document of

a The Bernon, 1 Rob. 102. The Sechs Gedchwistero, 1
Rob. 100. The Argo, 1 Rob. 163.

b The Jemmy, 4 Rob. 31. The Omnibus, 6 Rob. 71.

c The St. Nicholas, 1 Wheat. Rep. 417. The Fortune, 3
Wheat. Rep. 236.

30 OP THE UNITED STATES.

1821. protection. It is insisted that nothing less than the
J^y^f. solemnly pledged faith of the supreme power of the
Isabella, neutral state to the verity of the facts stated in the
passport can possibly satisfy the belligerent. The
terms used in the treaty are " sea letters or passports."
One of the contracting parties might understand it
as intending a document in the nature of a perma-
nent muniment of the title to the ship. Our laws
recognize no other such document, than one signed
by the President. The presumption, therefore, is,
that our vessels were to be furnished with a sea let-
ter thus signed, and the Spanish vessels with a royal
passport signed by the king. The cases cited on
the other side, to show that such a document of pro-
tection may be granted by an authority inferior to
the supreme power of the state, are not in point In
the British license eases, although this Court con-
demned our vessels sailing under them, yet the Bri-
tish prize Courts denied the authority of their admi-
rals and consuls to issue them, and condemned the
vessels taken by British cruizers although sailing
under these licenses.' All the other cases cited are
of passports issued by the Lord High Admirals of
England or France, acting as the immediate dele-
gates of the royal prerogative, and as the ministers
of the crown. There is no doubt, that Admirals
and Generals, commanding fleets or armies, have
the power of issuing passports for the temporary pro-
tection of persons or property, within the limits of
their command. But this arises from the necessity
of the case, and is incidental to the performance of

a The Hope, 1 Dodson's Rep. 226. Id. Appendix, (D.>

GASES IN THE SUPREME COURT 31

their official duties. But it is not incidental to any issi.
official duty of the Governor and Captain General rytry^f.

J * The Amiable

of the Island of Cuba, that he should have the power Isabella.
of naturalizing foreign ships, giving them all the pri-
vileges of Spanish built vessels, and grant passports
to protect them against belligerent scrutiny : Non
ei rex prtzponitur. It is highly improbable that the
Government of this country would have agreed to
a stipulation so improvident, under which the whole
navigation of our enemy might be screened from
capture by a mere fictitious adoption, fraudulently or
corruptly obtained for this purpose. The form of
this important document being omitted, either from
accident or design, there is the more necessity of
looking to the substance of the contract ; since, if
the form had been annexed, there is no doubt that it
would have required the highest authority of the
State to grant a document so conclusive. The pass-
port or sea letter provided by this treaty, is not a
mere ordinary license or safe conduct given by a
General or Admiral, for a temporary purpose, and
within the limits of his command* It is the supreme
power of the neutral State solemnly pledging itself
to the belligerent, that the property of the ship is
truly and bona fide neutral. The doctrine contend-
ed for on the part of the claimant, would go the
length of entirely abolishing maritime captures;
since the passport may be issued by any authority,
however inferior and however remote his functions
may be from such a duty. The treaty provides,
that the certificates which are required relative to the
cargo, shall be issued by the officer of the place

3$ CASES IN THE SUPREME COURT

1821. whence the vessel sails, and the same proviso would

T^totiXu **ave been ma(*e as t0 t'ie PWsport* had it been in-
tended to entrust the local magistrates with the
power of granting it Neither does an examination
of the forms of similar documents annexed to other
treaties, containing the sau$ stipulation, that free
ships shall make free goods, justify the inference,
that they may be issued by any authority less than
the highest. So, also, the celebrated convention of
1801, between Great Britain and Russia, though it
does not contain such a stipulation, but, on the coo*
trary, subjects enemy's property in neutral vessels to
capture, yet it provides for similar documents of pro-
tection, and in the formula annexed, it is stated, that
they are u to be delivered iwthe respective Admiral*
ties of th* two high contracting parties."* But the
question has already been determined in this Court,
in the case of the PizarroS In that case, the Court
say, (' It is certainly true, that the vessel was not
furnished with such a sea letter, &c, as are de*
scribed in the 17th article." But she had on board
the proceedings under which she was naturalized in
East Florida, and a certificate from the Spanish
Consul at Liverpool, certifying, that " Captain Don
Antonio Martinez, commanding the Spanish ship
called the Pizarro, of the burthen of 273 tons, re*
gistered at the port of St. Augustine de la Florida,
which came to this port from the Island of Amelia,
with a cargo, now sails for the port of Corunna, in

a For the provisions of this treaty, vitle Appekdix, Note
No. IV.

b 2 Wheat Rep. 244.

OF THE UNITED STATES. 33

Spain." Here, then, was a certificate, stating the mi.
same, burthen, and property of the ship, and the T^miaWe
name of the master, and issued by an authority as Isabella.
competent as the Governor of Cuba. Yet the Court
held it not to be a compliance with the terms of the
treaty, and required farther proof of the proprietary
interest.

5. Supposing, however, this vessel and cargo to be
documented as the treaty requires, it is insisted that
they are liable to condemnation for sailing under the
protection of enemy's convoy. It is true, that the
x Isabella parted company with the convoying ship
before the capture; but it was a mere temporary se-
paration, the latter having gone in pursuit of one of
our privateers. Although the Court has determined,
in the cases of the Nereide? and the Atalantaf that a
neutral may lawfully put his goods on board an arm-
ed enemy's vessel, yet it has not determined that
be may put his vessel and goods under convoy of
the enemy's fleet. The distinction between the two
classes of cases is stated by one of the learned Judges
of this Court, in delivering his opinion in the Atalan-
ta :c and the Lords of Appeal in England have held
the offence of sailing under the protection of ene- *
my's convoy to be a conclusive cause of condemna-
tion/ So, also, where certain merchant ships belong-
ing to the Hanse towns had put themselves under

a 9 Cranch, 388.
b 3 Wheat. Rep. 409.

c Per Mr. Justice Johison, 3 Wheat. Rep. 423.
d The Sampson, Barney, cited by Mr. Justice Stout, in 8
note to the Nereide, 9 Cranch, 442.
Vol. VI. 6

34 , CASES IN THE SUPREME COURT

1821. the protection of Swedish convoy, the latter having
J^0^^^ assumed a hostile character for the purpose of resist-

The Amiable . „ , . „ . . . ..

Iiabeiia. ing the right of search, they were equally held lia-
ble to confiscation*41 Such, also, is the law of Den-
* mark, a state that has always professed to maintain
the mildest principles of prize law.6 In his corres-
pondence with the Danish government, Mr. Erving,
our minister, admits the extreme difficulty of uphold-
' ing the contrary doctrine ; and only seeks to escape

from it by contending that the rule could not extend
to vessels farced into the convoy, or accidentally in-
volved in the enemy's fleet : and this may readily be
admitted without at all weakening the force of the
general rule.

6. This is an aggravated case of spoliation and
concealment of papers. Were this Spaniard to be
tried by his own law, he would be instantly con-
demned. By the law of the whole world, except that
of the United States and Great-Britain, spoliation
of papers is per se a cause of confiscation: and by
our law it is all but damnatory. If the spoliation is
unexplained, or the explanation is unsatisfactory ; if
the cause labours under heavy suspicions or gross
prevarications, farther proof is denied, and condem-
nation inevitably follows/ And it is a relaxation
of the rules of the Prize Court to allow farther proof
even where there has been a mere concealment of

« The Elsebe, 5 flo*. 173
b 4 Hall's Law Journ. 467. Ordonn. of 1810.
c The Pizarro, 2 Wheat. Rep. 241. The Rising Sun, 2 Roh.
166. The Hunter, 1 DodionU Rep. 486.

OP THE UNITED STATES. 45

papers.* But here are both suppression and spolia- 1*21.
tion ; and a case which escapes from this imputation, Th^m^ie
(to use the emphatic language of Sir W. Scott) "is i»beru.
saved as by fire."6 In the present case, the spolia-
tion and concealment are not only unexplained, but
inflame the other circumstances of suspicion. The
acts of the supercargo, in this respect, bind the
owners, because he is their confidential agent ; and the
shipowner is always bound by the misconduct of
the master in all respects/ So, also, the act of the
master binds the owner of the cargo, if he is also the
owner of the ship? and according to a decision of
the Lords of Appeal, whether he is owner of the ship
or not.* The act of the agent or consignee of the
cargo is conclusive upon the owner of the cargo.
And if the case be such as to require farther proof,
it is to be granted or denied under the Spanish treaty,
precisely in the same circumstances in which it
would be granted or denied by the pre-existing law
of nations.1 But by the general law, this is a case in

a The Fortana, 3 Wheat. Rep. 245.

b The Hunter, 1 Dodson's Rep. 4.

c The Rising San, 2 Rob. 108. The Vrow Judith, 1 Rob.
150. The Adonis, 5 Rob. 256. The Imina, S Rob. 167. The
Man, 6 Rob. 79. 2 Valxn Coram. 253. 1 Emerigon des Assur.
449.

d The Rosalie k Betty, 2 Rob. 343. The Alexander, 4 Rob.
93. The Elsebe, bRob. 173.

e The Franklin, 2 Acton, 106.

/ The St. Nicholas, 1 Wheat. Rep. 417. The Vrow Judith,
1 Rob. 150. The Baltic, 1 Acton, 14. 2 Binney, 308. 15
Eatt't Rep. 78.

f The Pizarro, 2 Wheat. Rep. 242.

S6 CASES IN THE SUPREME COURT

i*si. which if would be refused, and therefore it is an ex-
J^T^M ceptioo to the immunity secured by the treaty.
Isabella. 7. Finally. Even if farther proof were admissi-
ble, the farther proof produced does not establish the
proprietary interest in a satisfactory manner. It is
not incumbent on the captors to show to whom the
. property really belongs. It is sufficient that it does
not belong as claimed/

The Attorney- General, on the same side, insisted
that the case was not within the protection of the
treaty, because the vessel was not documented ac-
cording to its provisions, and the only paper which
conld possibly answer to the description of the sea-
letter or passport, required by the 17th article, was
concealed, and not shown by the master to the cap-
tors, as provided by the 18th; so that they had a
right to detain and send in the vessel for adjudica-
tion. Being thus subjected to the ordinary jurisdic-
tion of the Prize Court, she is to be tried by the or-
dinary rules of the prize law, independent of the
treaty. This Court has already determined in ano-
ther case, that the equivalent testimony, required by
the 17th article, is to be such as the Prize Court
would require, independent of the stipulations of the
treaty/ No other testimony could give the " legal
satisfaction" which the treaty demands. In a case
requiring farther proof, the equivalent testimony is
that farther proof: and the grant or denial of this

a The Odin, 1 Rob. 227. The Neptunus, 4 Rob. 68.
& The Pizarro, 2 WhtoX. Rep. 242.

OF THE UNITED STATES. 3?

must rest upon the ordinary rales of the Court/ 1821.
But here the claimant has forfeited his right to far* rw^Y^x

& The Aimable

titer proof, by his own aggravated misconduct in Isabella.
concealing the destination, and spoliating and sup-
pressing the ship's papers, which it was his duty,
both by the treaty and the general law of nations, to
exhibit to the captors voluntarily and fairly. But
supposing the passport to have been delivered to the
captors at the time of the seizure, as it ought to have
been, and suppose the usage of Spain fo supply
the omission of the form being annexed to the
treaty, still the document produced is not such a pass-
port as that usage requires. This is shown by the
very terms of the document produced, which state
it to have been issued " for want of royal passports."
It is said that this is justified by the local usages of
the colony; but we are not bound to know those
usages, or to admit that this Governor had the au-
thority to substitute his passport for one signed by
the King. The document required by the treaty,
then, not being found on board, the parties are to
give " legal satisfaction of their property by testi-
mony entirely equivalent" This testimony is to be,
according to the course of the Prize Court, the pa-
pers found on board, and the examinations in pre-
paraiorio. But these papers and depositions, so far
from satisfying the conscience of the Court, increase
the suspicions excited by the want of the documents
required by the treaty ; documents so easily procured
where the property is really Spanish, and the vessel

a The Pizarro, 8 Wheat. Rtp. %i%.

38 CASES IN THE SUPREME COURT

1821. fairly entitled to the privileges of a Spanish ship,
J^y?^, that it is incredible any such vessel should want

The Amiable , ,. . i i •

Isabella, them. The onus probandi is on the claimant in
such a case under the treaty, precisely as it would
be by the general law of nations, independent of
the special provisions of the treaty ; and the ques-
tion of proprietary interest is to be determined just
as that question would be in any other case of prize*
The investigation in the Prize Court is substituted in
lieu of the investigation by the captors at sea, which
last was to be entirely concluded by the treaty do-
cuments, if the ship was furnished with them ; if
not, she was liable to be brought in to ascertain the
character of the ship, which, if adjudged to be Spa-
nish, the same consequence of protection to the car-
go will follow, as if the ship had been regularly do-
cumented according to the treaty. It is not the pos-
session of papers equivalent, in formal effect, to those
required "by the treaty which will protect her from
farther inquiry, but she must have papers which will
produce the effect of giving satisfactory evidence of
the proprietary interest according to the ordinary
rules of the Prize Court. If the substituted docu-
ments were fraudulently obtained and used, would
that be satisfactory evidence ? The- spirit and inten-
tion of a treaty is always to be regarded in its in-
terpretation.* Every object of such a treaty would
be entirely defeated by permitting an enemy to avail
himself of provisions contained in it, and intended
for the exclusive benefit of a friend ; and even if a

a Vattel. Droit det Gens, I. 2. e. 17. $. 268—270. 274— 28&

OF THE UNITED STATES. 39

Spanish subject, by perpetrating a fraud upon his 1821.
own government, lends the protection of its flag to J^^L
a foreigner, that Spaniard becomes himself an.ene- Isabella.
my, and cannot justly complain if he suffers the fate
of an enemy ^ It is no disrespect to Spain, or disre-
gard of her national rights, to refuse the benefit of her
flag and pass, where they have been obtained by prac-
tising an imposition upon her officers* She can claim
no greater respect for their acts than is conceded to
the judgments of the highest Courts of justice. But
even these are vitiated by fraud, according to the
law of every country. Great Britain so under-
stands the effect of a similar treaty stipulation.
In the case of the Cittade de Lisboaf which was de-
termined under the British treaty with Portugal, con-
taining the principle of free ships, free goods, though
the vessel had the Porfuguese flag and pass, she was
condemned because a box of papers was found on
board falsifying the claim, and showing the proper-
ty to be enemy's ; and to give more solemnity to the
judgment of the Court, the Portuguese Consul was
called in to witness it, and admonished to advise his
government to be more vigilant over the conduct of
its officers in this respect. So, also, our own Court
of Appeals in prize causes, during the war of the re-
volution, held the general maxim of free ships, free
goods, which had been temporarily recognized in an
ordinance of Congress, not to extend to a case of
fraudulent combination between the enemy and neu-
trals to defeat the belligerent rights of the United
States and her ally.* In that case, the Court ob-

o 6 Rob. 368.

h Darby r. The Est em, 2 Doll 35.

40 CASKS IN rjTHE SUPREME COURT

mi. served, that Congress had not paid that, a violated
ThTAmitbie neutraWty should protect ; and the mention of some
Isabella* exceptions to the general immunity , (such as con-
traband, &c.) does not exclude others, equally fla-
grant, though not mentioned. So in this case, the ex-
ceptions of blockade and contraband, do not exclude
other cases of unneutral conduct ; and some implied
exceptions there must be, or how could the Court
engraft the exceptions of the propery, of citizens of
the United States trading with the enemy, or of Spa-
nish subjects not actually domiciled within the domi-
nions of Spain, both of which cases are excluded from
the general operation of the treaty, according to the
opinion of this Court in the Pizarro.* If, then, the
case is not within the protection of the treaty, does
either the original evidence; or the farther proof, sa-
tisfy the Court of the property of the ship and cargo
being as claimed ? This inquiry cannot be limited to
the ship, because if that vyas really Spanish, it would
be sufficient to protect the cargo also : but both are
included in the same claim, which is given for the
same person ; and if the claim for the cargo be false,
that will also affect the claim to the ship. If the
ship was Spanish property, why seek to show that
the cargo was Spanish also ? The proprietary in-
terest in the ship is supposed to have been acquired
under a judicial sale upon a bottomry bond. But
the previous history of the ship is not satisfactorily
explained, and so far as it is given, points to an
enemy origin : and the proceedings under which the

a 2 Wheat. Rep. 245. 246.

OF THE UNITED STATES. 4]

sale was had, are manifestly collusive and fraud u- issi.
feat* The claim to the cargo is also supported by -i^mWhL
mere formal documents, unsupported by the oaths of Isabella,
witnesses, and contradicted by the evidentia rau
The spoliation and concealment of the papers are
not satisfactorily explained. Such explanation
could only proceed upon the ground of the papers
being innocent in themselves, and that they were
destroyed from a necessity unconnected with an at*
tempt to evade the right of search. But as to the
papers thrown overboard, all that we know of their
character is, that they came from the compting
house of the claimant, who ordered them to be
thrown overboard, in case of capture ; and as to the
supposed necessity of destroying them, the only rea-
son alleged is the fear of South American cruizers.
This could not be the true reason, since the papers
retained on board would equally show the Spanish
ownership of the ship and cargo, which it is now in-
sisted they are sufficient to establish. And as to the
papers mutilated and concealed, a careful inspection
of them will satisfy the Court, that they point to the
English origin of the adventure, and to English in-
terests in its results. The learned counsel concluded
by a very minute and able analysis of the proofs of
proprietary interest.

'Mr. Harper, for the claimant and appellant, in reply,
(1.) insisted that the destination of the vessel, in this
case, was not a false destination ; and that even a false
destination is not a substantive cause of condemna-

V«L. VI. 6

42 CASES IN THE SUPREME COURT

1821. tion. A false destination, is an unlawful destination
^y^f. concealed : but here the alternative destination did,

The Amiable

Isabella, in fact, appear on the face of the papers, and both
London and Hamburg were equally lawful ports for
Spanish vessels to trade with. In the cases oflheJuff-
rouwAnna* and the Welvaartf the false destination was
combined with other circumstances of illegal conduct
or suspicion, and the condemnation did not proceed
upon that ground alone. In the case of the Nancy f
it was also connected with the offence of carrying
contraband goods on the outward voyage. So the
case of the Marsf was that of engaging in the colo-
nial trade of the enemy, attempted to be concealed by
a false destination ; and farther proof being neces-
sary, it was refused on account of those circumstan-
ces of fraud and illegality.

2. Nor ought the present case to be affected by
the fact of the vessel having set sail from the Havana
under convoy of a British frigate. This protection
was necessary against South American cruizers, to
whom Spanish property would have been good
prize. But the Isabella intended to leave her con-
voy off the coast of Florida, and such an intention
admits of a locus penitentice which was availed of:
for she had in fact left the fleet, before the capture.
The case of the Hanse vessels taken under Swedish
i convoy was very different from this.' The Swedish

a 1 Rob. 125.

6 1 Rob. 122.

c 3 Rob. 125.

ej 6 Rob. 79.

e TheElsebe, 5 Rob. 173.

OP THE UNITED STATES, 43

arri)6d vessels prepared to resist, and only yielded to 1821.
the terror of a superior force ; and the Hanse vessels TJjf^^Ie
were affected by what was considered as an actual Isabella.
resistance of the convoy, having associated them-
selves under its protection.

3.' As to the spoliation and concealment of papers,
the facts do not warrant the inference of its having
been done for unlawful purposes. There Is no evi-
dence whatever that the papers thrown overboard
were connected with this transaction. The con-
cealed papers were innocent ; and were even essen-
tial to show the Spanish interest in the cargo: and
as to the mutilation, if practised at all, it most have
been by the captors themselves, as they alone had an
interest in defacing papers which were material to
the claimant's proofs of property. The fact as to the
papers thrown overboard was frankly and freely dis-
closed by the parties who alone had any knowledge
of it, and a satisfactory reason for their conduct as-
signed by them on jheir first examination. Even
supposing, however, that the fact of the spoliation
and suppressioff of papers would, under other cir-
cumstances, exclude the claimant from the benefit of
farther proof, it is now too late for the captors to ob-
ject, an order for farther proof having been granted in
the Court below, without any objection on their
part.*

4. The passport in this case is sufficient to esta-
blish the national character of the ship, so as to pro-
tect both her and the cargo under the treaty with

a The Pizarro, 2 Wheat. Rep. 227. 240.

44 CASES IN THE SUPREME COURT

182U Spain. It is one of a series of passports issued by
J^y^, tbe Governor of the island of Cuba ; is numbered

The Amiable # ' m

. itaUiia. 94, showing that many more of the same kind had
been issued ; and the words " For want of royal
passports" are printed, which circumstance shows
that it was an established formula. The circum-
stances of the Spanish nation at that period, when
Ferdinand had been just restored to the throne, suf-
ficiently explain the cause of the defect of passports,
with the king's sign-manual. The very act of exer-
cising such an authority cm the part of the colonial
Governor, is strong prima facie evidence of his pos-
sessing the power ; and until rebutted by some con-
trary proof, must be considered as conclusive that
such is the usage of Spain. There is no substantial
difference between such a document and royal pass-
ports ; since the latter must be issued in blank, and
sent to the different ports throughout the extent of
the Spanish dominions, and the distribution of them
entrusted to subordinate officers, so that the same
frauds may be perpetrated as are imagined in the
present instance. What better sectlrity have we
that the royal passport itself will not be employed to
protect the trade of our enemy ? It may be safely
admitted, that you may inquire so far as to ascertain
that the passport is not forged, or obtained by crimi-
nal means, or fraudulently applied to a vessel, for
which it was not issued : But if none of these cir-
cumstances occur, and the passport regularly issues,
from an authority which is competent to grant it
according to the local usages of the neutral country,
the treaty makes it conclusive, on the question of

Or THE UNITED STATES. 4&

property. Id this case, the passport was granted, issi.
under a judicial decree of the Consufado, at the t^T^Tw
Havana, proceeding according to the course of the inbeihu
Court of Admiralty, to inforce a bottomry bond,
given for repairs to the ship. The sentences of foreign
tribunals, having jurisdiction of the subject matter,
and proceeding in rem, are considered as conclusive,
by the law of this, and every other country, wherever
the title to the thing comes incidentally, or directly,
in controversy. Here it is the very question in issue
before the Court ; and the decision of the Spanish
tribunal not only warranted the Governor of Cuba
in granting the passport, but even if he had not
issued it, would bind this Court to consider the pro-
perty as Spanish. Therefore, admitting that the
captors had a right to bring in this vessel for adjudi-
cation, because she had not the passport required by
the treaty, or because it was not exhibited to them
at the time of the capture, still the equivalent proof
is more than sufficient to supply the want of a pass-
port in any form that can be conceived ; because, it
shows, that the ship was entitled to every document
which could prove her to be a Spanish ship, the tri-
bunal of the Consulado having adjudged her to be
Spanish property. The captors may possibly be
exempt from costs and damages ; but it does not,
therefore, follow, that the case is taken entirely out
of the special provisions of the treaty, and left at
large to be determined under the law of nations.
The object of the treaty was to provide, that neutral
vessels should protect goods to whomsoever belong-
ing, with the exception of contraband only. The

46 CASES IN THE SUPREME COURT

1821. passport was to ^e conclusive of the neutrality of
J1-^^, the ship, and the certificate was to show, that the

The Amiable r7 ,,»-.. ,

Isabella, cargo was not contraband. If these documents are
wanting, then the property of the ship is to be esta-
blished by equivalent testimony; and that being,
shown to be neutral, will protect the cargo, even if
enemy's property, unless, indeed, it consist of con-
traband articles. The " equivalent testimony" re-
quired, must mean, that other documents shall be
produced which will prove precisely the same facts
that were intended to be proved by the passport and
certificate ; and not that sort of evidence which the
technical rules of the Prize Court demand in a case
requiring farther proof. Doubtless the intention of
the contracting parties is to be regarded in constru-^
ing treaties, as it is in the interpretation of all other
instruments; but that intention is to be gathered
from the words they use. Although there are many
treaties consecrating the maxim, that free ships shall
make free goods, there is no other example of a treaty
stipulating what should be conclusive evidence of the
freedom of the ship. The parties to this treaty in-
tended to exclude the jurisdiction of the Prize Courts
of the belligerent as far as possible, by forbidding '
the detention of vessels having the required docu-
ments, and where they were carried in for adjudica-
tion for want of these documents, limiting the in-
quiry of the Prize Courts to such testimony as
should be equivalent. All the cases cited on the
other side, of the supposed exception to the general
immunity, are cases arising under treaties or ordi-
nances, merely recognising the principle, that free

OF THE UNITED STATES. 47

ships should make free goods, without providing any mi.
rule of evidence to establish the national character Jtj^y^f*
of the ship, and leaving that question to be deter- Isabella,
mined by the general law of nations. But here the
conventional law adopts a new rule of evidence, from
which the Court is not at liberty to depart.

The learned counsel also argued the question of
proprietary interest with great minuteness and ability.

The Court directed the cause to be reargued, up- March «A,
on the point as to the form and effect of the passport.

The Attorney- General, for the captors and respon-
dents, insisted, that the form of passport to which an
effect so important was attributed, not having been
annexed to the original treaty, by the contracting
parties, could hot now be supplied by the judicial
tribunals of either. Such an attempt would be an
encroachment on the treaty-making power, which,
in our government, is exclusively confided to .the
President and Senate. The office of this Court is to
construe, not to make or amend treaties. The treaty
(art. 17.) provides, that "the ships and vessels be-
longing to the subjects or people of the other party,
must be furnished with sea letters or passports, ex-
pressing the name, property, and bulk of tlte ship,
as also the name and place of habitation of the mas-
ter of the said ship, that it may appear thereby that
the ship really and truly belongs to the subjects of one
of the parties, which passport shalLbe made out and
granted according to the form annexed to this treaty."
These particulars were required to be inserted for

48 CASES IN THE SUPREME COURT

1831. the purpose of identifying the vessel to which the
J^y*^. passport was intended to apply, and to satisfy the
Isabella, other contracting party that she is really entitled to
the immunities stipulated in the treaty. The pass-
port in the present case was either intended to certi-
fy that the ship was Captain Cacho's, or not The
words are, " Captain Cacho, with his Spanish

ship called/9 &c. If Cacho was meant to be certified
to be the owner, the claim does not conform to it
He expressly swears that it is not his, but that it be-
longs exclusively to Munos, who claims. Nobody
else can have restitution but the actual claimant, and
he is not certified in the passport to be the owner.
But the term " his Spanish ship" is evidently a mere
figurative expression, and means nothing more than
the ship of which he is master. What then is the
import of the term '' Spanish ship ?" A certificate
that a ship of a certain name, and bulk, and master,
is a Spanish ship, is not a certificate that it is Spa-
nish property, or in other words, the property of Spa-
nish subjects, which is alone intended to be protect-
ed by the express terms of the article. A vessel may
be a Spanish ship by adoption, by having a license
to trade with the Indies, without ceasing to be the
property of foreigners, or becoming the property of
Spanish subjects. It is not sufficient to certify the
national character of the ship merely. There must
be a certificate that it is the individual property of
particular subjects of Spain, for to such alone does
the protection of the treaty extend. The treaty be-
* ing left imperfect in omitting to annex the form of

OF THE UNITED STATES 40

passport, it is very questionable whether the stipu- isai.
Jation as to its effect as evidence, is not wholly void. J^Yyf.

•n i • • . . ^ ../. The Amiable

But admitting that the Court can supply the form, Isabella.
how is it to be done? Two modes may be selected.
Fint, to take the literal words of the treaty ; and then
the passport should have stated the ship to be the
property of Munps, the claimant: or, secondly, the
form may be supplied by referring to other treaties
similar in their nature. In the form of passport an-
nexed to the French treaties of 1778 arid 1801, the
master is required to swear that " the ship belongs to

•one or* more of the subjects of - . The act

whereof shall be put at the end of these presents,"
&c No form of the oath which is .to be thus ap-
pended is given : but the Dutch treaty of 1 782, shows
what the form of the oath would probably be: cC C.

D. of , personally appeared before us, and de*

clared by solemn oath, that the ship or vessel called,
&c. does rightfully and properly belong to him or
them only," &c. The terms of these treaties are
the same with the Spanish treaty, and require " the
name, the property, and the burthen of the vessel,"
to be expressed. It is not property in the abstract,
the national character merely, acquired by a fictitious
adoption into the navigation of Spain; but the indi-
vidual proprietary interest of some Spanish domicil-
ed subject, that is to be protected.

Mr. Harper ) contra, contended, that the treaty mere-
ly required the national character of the property, and
not its individual ownership, to be expressed in the
passport: There can be no doubtt hat this pa&sport

Vet. VI. 7

60 CASES IN THE SUPREME COURT

1821. tfiust be according to the regular Spanish form, bettrifee

^iiTa^m ^ot*1 t^a anc* t'ie fo^ PassPort ^ ^e Clara, which
Isabella, was also found on board, have the same expression,
viz. " his Spanish ship." This is precisely equiva-
lent to a certificate that the ship belongs to Spanish
siibjefcts. A warranty in a policy of insurance that
a ship is an American ship, is a warranty that she is
the property of citizens of the United States. The
form of passport which was intended to have been
annexed having been omitted, good faith requires
that it should be supplied by construction, since it
must be concluded that the parties intended to Waive
it. A construction has been given to the stipulation
by the Usage of the two countries, which is suffi-
cient for all practical purposes. What good pur-
pose Would be answered by inserting the name of
the owner? The Court could not inquire even
whether such a person existed, much less as to his
national character or domicil. The conclusive effect
attributed to the passport, would prevent any such .
extrinsic investigation, and therefore a fictitious
name might be inserted which would satisfy all the
requisites of the treaty. So that a general certificate
of the national character of the property is as effica-
cious as would be a certificate that it was the pro-
perty of some particular person.

Mm* K>t!i, The cause was again argued, upon the application
182a of the executive Government, to the Court, on the
question of the construction of the Spanish treaty,
and the form and effect of the passports.

OF THE UNITED STATES. 5}

Mr. Pinknetfy for the captors and respondent*, is2\.
stated four points for the consideration of the Court. J^y~*?t

* m The Amiable

1st. That the passport produced in this case, was Isabella.
not within the terms of the treaty, because it was
obtained by fraud.

2dly. That it was not within the treaty, because
Upt issued by the Spanish sovereign, or his known
authorized substitute.

3d. That it was not within the same, because the
only article which professes to provide for it, is in-
complete and inofficious, the /arm never having been
annexed, according to the terms of the article.

4th. Because the passport issued for this ship, is
not conformable either with the terms or the sub-
stance of the article ; since it does not state that the
ship is the property of a Spanish subject, nor nape
any Spanish subject as the owner.

This treaty is, unquestionably, to be interpreted
by a just regard to the public faith, but only so far
as the public faith is actually pledged by it. The
spirit which animated the parties to the armed neu-
trality is to be regarded ; but it must be remembered,
that the celebrated confederacy which has received
that naipe, was intended to introduce new rules, to
the disparagement and repeal of those which then
existed, and in derogation of the ancient law of na-
tions. The intention of the parties to the Spanish
treaty, is also to be token into view. But this in-
tention is to be collected from the language they
have used ; if that be clear and plain, there is no
room for interpretation ; but, if ambiguous in itself,
then the intention may be fairly collected from the

52 , CASES IN THE SUPREME COURT

1821. object and circumstances of the stipulation in ques-
-^^V. tion. In a word, the treaty is to be executed as it
Isabella* is, and no new treaty to be ibade by the labour of
exposition.

1. The object of the stipulation is expressed in
the article to be " the ships and vessels belonging to
the subjects or people of the other party," &c. This,
necessarily, excludes all other ships or vessels.
Consequently, it cannot be applied to vessels
which are not really those of Spanish subjects,
but only fraudulently represented to be such. It
is a principle, not only of the common law, but
of universal jurisprudence, that fraud vitiates every
act, whether public or private; contracts, deeds,
and judgments, are alt affected by it, even as to bona
fide purchasers. No record, however solemn, estops
an allegation of fraud. Judgments of Courts of
competent jurisdiction import absolute verity, wher-
ever they are brought in question ; hut if obtained
by fraud, they are set aside, either in the same or
any other tribunal ; and a person affected by the
fraud may show it and avoid the judgment, though
not a party to the suit. Thus a stranger may avoid
a recovery in a real action, if covenous or fraudulent,
and he is prejudiced by it. These analogies of the
municipal law are applicable to similar cases arising
under the law of nations. The comity which is due
to foreign States, does not require us to respect the
acts of their administrative or judicial officers when
they are contaminated with fraud, and still less
where this fraud has deceived those very officers,
and induced them to issue Spanish papers to a Bri-

OP THE UNITED STATES. 53

tish ship. In such a case, even if a royal passport 1821.
had been issued, we should have a right to say, in v-*~*^/

The Amiable

the language of the common law, li the King has Isabella.
been deceived in his grant." A repetition of such
transactions as the present case discloses, would
bring the entire treaty into jeopardy. The honour
and interest of both nations equally require that they
should be repressed. The only mode of preserving
the amicable relations between the two powers, is by
judicial interposition, preventing the effect of such
violations of the spirit of the treaty before they grow
too mighty to be controlled by diplomatic remon-
strance. Make these frauds successful, and encour-
age them by your decisions, and such violations will
be frequent On the other band, by arresting them
in limine, the presumed and declared purposes of the
contracting parties will be fulfilled, and dissentions
and hostilities prevented. That there must be some
implied exceptions to. the conclusive effect attributed
to the passport by the letter of the treaty, is manifest.
Such would be the case of a royal passport, signed
in blank, obtained by corruption of the officer in
whose custody it was, and filled up fraudulently, and
applied to a vessel not entitled to the privilege.
Here is a passport de facto, with all the solemnities
upon its face, yet certainly examinable in this par-
ticular ; and if shown by extrinsic evidence to be
thus fraudulently obtained and used, not only would
the captors be excused from costs and damages for
detaining the vessel, but she must be condemned
under the ordinary rules of prize law. So that all
the mischiefs of stopping vessels at sea may arise

54 CASES IN THE SUPREME COURT

18^1. notwithstanding this stipulation; and, indeed, all
^^Mbi 8UC'1 attempts to limit the range of maritime warfare
Isabella, will be found in practice to be quite illusory, unless,
indeed, the capture of private property be entirely
prohibited ; and even then contraband and breach
of blockade must be excepted. A passport, as in
the present case, actually filled up by the proper
authority, and intended for the ship for which it j»
actually used, if issued upon false suggestions, is np
more a legal passport than the one just supposed.
The will of the grantor does pot concur. The fraud
makes it no passport. — But it is objected, that by the
18th article, the passport, if in due form, is to he
conclusive when shown at sea, and the belligerent
cannot detain the vessel after this document is ex-
hibited. If the precise letter of the treaty he adher-
ed to, this objection will be found to be groundless.
" If the ships of the said subjects, &c. shall be met
with," &c. " the master or commander of such ship
shall exhibit his passports concerning the property of
the ship, made out according to the form inserted in
this present treaty," &c Suppose a ship exhibiting
such a passport, should be proved by other evidence
found on board, not to be a " ship of the said sub-
jects ;" then the letter of the treaty does not apply
to her. If not a " ship of the said subjects," her
passport is no absolute and conclusive protection.
On the other hand, if the spirit of the treaty be re-
garded, the result is precisely the same. The inten-
tion of the contracting parties was to protect Spanish
ships, and not enemy ships ; to give effect to the

OF THE UNITED STATES. 55

nlteto tffiree skips, free goods; not to make one- mi.
my ships protect enemy goods. Even admitting, J^y^f,
tint the contracting parties meant to confide in the i»beu*.
good faith of each other, that they would grant their
respective passports only to their own vessels ; still
it is not to be supposed, that they meant to confide
in the good faith of their enemies, that these last
would not attempt to deceive their officer*. It
would, indeed, be an imputation on their good faith,
to suppose that they wished such frauds to be suc-
cessful. Every such national stipulation must re-
ceive fe fair and reasonable construction. One which
subverts its object, which encourages fraud and per-
jury, and makes the stipulation destructive to the
rights of both parties, and benefits their enemies
only, cannot be just. So pernicious a construction
destroys all the advantages of the treaty. Look at
its consequences to our belligerent rights. The
passport, however obtained, and attended with what-
ever concomitant proof of fraud and falsehood, is
supposed to be incontrovertible. However clumsy
and barefaced the imposition may be, still it must
prevail ; and while our enemy is warring upon us in
atl directions, and by every means, we must suffer
his trade to pass unmolested in his own ships, wear-
ing a Spanish veil which disguises nothing, and only
compels us to affect blindness. On the other side,
the evils flowing from the interpretation we insist
upon amount to nothing. The passport is still pro-
tecting evidence to all reasonable and honest pur-
poses. The captor who disregards it, does so at the

50 CASES IN THE SUPREME COURT

tail. peril of exemplary costs and damages, to be inflicted
J^y^f. in the discretion of the Court, according to the pe-

Thc Amiable mi • i_

Isabella, culiar circumstances of every case.. There ts, then,
the moral restraint of a great responsibility. It is
sufficient to give protection where it is due, and was .
intended to be given. It provides for the consequen-
ces of slavish submission to the letter of the instru-
ment, on the one hand, and guards against vexatious
interruptions of neutral commerce on the other.
. 2. But, if the document can be issued by any in-
ferior functionary, the argument on the first point is
entitled to still more weight It is impossible to
conceive that any nation would be so unwise a& to
consent that subordinate officers, at a distance from
the sovereign authority, of great facility, surrounded
by corrupt agents, or perhaps themselves corrupt,
should grant such an omnipotent document, sacred,
infallible, and conclusive even against the manifest
fact, and truth. Where is the authority of this Court
to countenance the issuing of such a document, by
an authority less than the highest ? The treaty is
here silent. If the jfcrm had been annexed, it would
probably have made provision on this subject also.
If this omission is to be supplied by construction,
the Court will remember the high dignity and vast
power of the document, and will not too easily con-
fide in the responsibility of subordinate agents, re-
mote from the control of their sovereign. The pass-
port now in question, professes to be issued " for ,
want of royal passports." But why want them ?
Their absence proves a want of confidence in the

OF THE UNITED STATES. 57

officer who has here assumed the authority to sub- mi.
stitute his own, for the passport of his prince. In J^YV
the absence of any evidence of a right to exercise an Isabella.
authority so high, or of the fact that any royal pass-
ports had ever been entrusted to his distribution, the
Court cannot recognize the validity of a document
thus issued.

3. The 17th and 18th articles of the treaty, so
far as they provide for the form and effect of pass-
ports, are inofficious and incomplete, for want of (be
annexation of the form intended. The 17th pro-
vides, that the " passport shall be made out, and
granted according to the form annexed to this treaty."
Tfre ships of the two nations are to be " provided
with passports us above mentioned? &c. " without
which requisites they may be sent to one of the
ports," &c. The 18th, stipulates that the master
u shall exhibit his passports, concerning the property
of the ship, made out according to the form inserted
in this present. treaty, and the ship, when she shall
have showed such passport, shall be free, and at li-
berty to pursue her voyage," &c. So that there is
nothing in these articles which gives a conclusive
effect to any other passport than one, which it is im-
possible to have under the treaty, as the parties have
left it The first part of the 17th article does indeed
give some of the qualities of the passport ; but it
must have others, and they are unattainable by rear-
son of the omission of the form. The Court then
must either strike out the reference to a form, or
imagine a form, and annex iu To do either, would
be a high act of legislation, to which the Court is

Vol. VI. 8

58 CASES IN THE SUPREME COURT

1821. incompetent. But let ns try to discover the for© ;
f>-^v^w and taking the 1 7th article for a guide, it must ex-
UabfUa. press the name, property, and bulk of the ship, aad
the name and habitation of the master. Still there
are several things more to be ascertained* Who i*
authorised to grant the passport ? This is an essen-
tial circumstance ; is ascertained by the forms of
passport annexed to several treaties ; and would
probably have been expressed in this form had it
been annexed. How is the proprietary interest to
be stated : as the general property of the subjects of
the state, or as the special property of some indivi-
dual named ? Is the national character of the ship,
jus a part of the navigation of the country under
whose flag she sails, sufficient; or must it appear to
be the property of subjects in general, or of some
individual owner? Under what sanctions and so*
lemnities, and accompanied by what proofs, is the
document to issue ? These, too, are regulated by the
forms annexed to several treaties, which were
brought to the notice of the Court, at the former ar-
gument. The Court may supply these requisites,
conjecturally, but it can have no assurance that it
will not err, and defeat, instead of promoting the in-
tention of the parties. The stipulations of the treaty
are nothing, and profess to be nothing without the
form of passport The contracting parties have
made no effectual contract on this matter, without
the form. The Court cannot finish, what they have
left imperfect, any more than it could frame new
articles, and insert them in the treaty. The con-
tracting parties give conclusiveness to no passport

Of THE UNITED STATES. £9

but one according to a form to be annexed.- The 1821.
Court knows not what that form would have been. J^Y^f^

The Armabl*

ft might hare explained, varied, or added to the re- fcabeUa.
qmsitesof the passport contained in the body of the
treaty. Can the Court give conclusive effect to any
other passport than the one intended to be ^provided
by the treaty ? If it can, the treaty wonld, to a cer-
tain extent, be made by the Court. But the judi-
ciary has no portion of the treaty-making power
trader our constitution ; and cannot exercise it under
the pretext of interpreting treaties made by the Pre-
sident and Senate. Here is no room for interpreta-
tion. The language of the treaty is express and in-
telligible, as far as it goes. It creates but one casus
foederis. The Court cannot vary it, or superadd
another. The 14th article of the Prussian treaty
of 1785, contains a similar stipulation with that of
the Spanish treaty. The passport is to express the
" name, property, and burden of the vessel, as also
the name and habitation of the master, which pass-
ports shall be made out in good and due forms, (to
be settled by conventions between the parties, whene-
ver occasion shall require") &c. Suppose that no
such conventions were ever concluded, (and in fact
they never were,) could the Court supply the form,
or give effect to the stipulation in the treaty with
Prussia ? Yet the two cases are the same : for
the omission of a convention settling the form, or,
of the annexation of the form, equally fail to
complete the stipulation. If one can be judicially
supplied, why cannot the other ? It is a gratuitous
assumption to say, that by the non-annexation, the

60 CASES IN tHE SUPREME COURT

1821. parties intended to refer the form to each other's good
J^fy?* faith and discretion. If they had changed their minds
Isabella, in this respect, when they executed the treaty, a sup-
plemental article would have been added: and the on-
ly fair inference from their silence is, that they meant
to leave the stipulation of free ships, free goods, to
support itself by the ordinary rules of evidence as
to the property of the shift The Court cannot alter
the treaty by mere implication, and that too, not a
necessary implication, for the non-annexation might
have been the result of inadvertence. It might, also,
have been the result of an intention to abandon the
scheme of conclusive passports, or of passports more
than usually efficacious, by omitting to perfect the
treaty in that respect. If the defect proceeded from
accident, the parties might have supplied it by a sub-
sequent convention : and if they have not thought
Jit to do it, the proper inference is, that they did not
wish to do it ; and if wishing it, they have neglect-
ed it, they have no reason to complain that the Court
acts upon the treaty as it finds it. The inadver-
tence, therefore, was remediable in a regular man-
lier, by the treaty -making power on both sides ; and
the Court has no right to say that it was not an in-
advertence ; or if by design, that it was not intended
to leave the stipulation abortive as to the effect of
passports. And where is- the mighty mischief of
leaving it unaccomplished ? The great object of the
treaty was the principle of free ships, free goods.
Take away the conclusiveness of the passport, and
that principle remains in full force. It stands in
many a treaty without it. The passport would still

OF THE UNITED STATES. $1

Have its proper effect. It would be entitled to re- 1*21.
spect, as prima fade evidence, but it -would not be J^v7*'

1 • • i» « Td6 Ami&fa|ltt

conclusive against further examination. No doubt Isabella.
the public faith is to be preserved, but the care of it
is devolved upon this Court to a limited extent only ;
the executive government is answerable for the rest
The jurisdiction of the Court to carry the treaty into
effect, arises out of the constitution, which declares
it to be the supreme law of the land, and it is only
as a law that the Court can deal with it Where a
treaty gives a legal rule, the Court may enforce it
directly in the exercise of its ordinary and regular
jurisdiction. But where it fails to give such a rule,
the Court is without power. As a Court of the law
of nations, it cannot, by analogy to its equitable ju-
risdiction, supply the defective execution of a treaty, .
as Chancery supplies the defective execution of a
power, or a trust. A Court of Equity supplies a re-
medy where there is a right merely equitable. It
has a control over the parties to compel them to do
justice, although there be no legal obligation. But
this Court cannot deal with treaties in this manner.
It must execute them as it finds them, since it acts
upon them as written laws merely, and has no con-
trol over the parties to make them conform their con-
ventions to their actual intentions. Suppose the
United States had refused to make a convention
providing the form of passports under the Prussian
treaty,1 could this Court compel the Government to
do it, or consider it to be done, because in equity it
ought to be done ? An equitable jurisdiction over
treaties, implies a control over parties. But the

{ft CASES IN TltE SUPREME COURT

is». power of the Court over treaties is incidental merely j
^T^w it makes the treaty act where it professes to act, and
UabeUa. dees not supply rules of conduct which the treaty
does not give. Its province is interpretative, as in
the case of other laws : and it can no more assume
the treaty-making power, than any other legislative
power.

4. But putting the last objection out of the ques-
tion, the passport produced does not conform to the
17th article of the Spanish treaty. The requisition
of the treaty is, that the passport shall state u the
name, property and bulk of the ship" &c. " that U
may appear thereby thai the skip realty and irmly be-
longs to the sutyects of one of the parties^ &c But
this passport merely licenses the master, by name,
" to proceed in his Spanish ship," &a How does
it appear by this that the ship is the property of any
subject of Spain ? The words of the treaty, or ab-
solute syuonymes* are essential, and cannot be dis-
pensed with without frustrating the object of the sti-
pulation. Unless, therefore, the substituted words
necessarily, and under all circumstances, mean the
same thing, and give the same security to the bel-
ligerent, the departure is fatal. ' The pronoun
" his," as here used, does not relate to property, but
to the official character of the master ; nor is it pre-
tended that he is owner. The words a Spanish
ship," do not necessarily denote Spanish property.
Spain may adopt, or naturalize foreign vessels, for
temporary, or for permanent purposes, without ma-
king their owners her subjects. Even a Spanish
passport given to a vessel, documented in other res-
pects as a foreign vessel, may be held to communi-

OF TfciE UNITED STATES.

cate the Spanish national character. It depends on iwi.
Spain to make any vessels Spanish vessels, and thus ^^^jL
to give the protection of her flag and pass to the Isabella,
whole navigation of our enemy. The words here
substituted, do not then necessarily import the same
with the words of the treaty ; they are susceptible of
evasion ; they may be true, and yet the requisitions
of the treaty remain unsatisfied.

Mr. Harper, contra, referred to the former argu-
ment on the part, of the claimant and appellant on all
the points, except that relative to the omission of the
form of passport provided by the treaty, which he
insisted did not defeat the conclusive effect meant to
be attributed to the passport by the treaty. The
construction contended for, on the part of the cap-
tors, would destroy the benevolent object of the con-
tracting parties. It is highly improbable that the two
nations would have suffered so important an altera-
tion to be worked in their original intentions, either
by an accidental or designed omission of the form of
passport. The annexation could hardly have been
omitted from negligence ; and if the entire effect of
the stipulation was meant to have been waived,
the parties would have distinctly expressed this
change in their views. The fair inference, there- ,

fore, is, that they meant to refer the form to each
other's good faith, and to be satisfied if it contained
a compliance with the substantial requisitions of
the treaty. Under this confidence, our vessels have
been furnished with the sea letter, and the vessels of
Spam with a royal passport, or a passport substitu-

CASES JN THE SUPREME COURT

1821. ted for it by the Spanish authorities, to whom the
v*^v^ issuing of royal passports is entrusted, and contain-
rubella* mg the same particulars as to the property of the
ship, &c, which the royal passport contains. It is
not contended, that the passport may be issued by
any Spanish authority, however inferior, or however
alien his functions to the matter in question ; but
only by such officers as the Spanish Government
authorizes to grant them. If, notwithstanding a
vessel has such a passport or sea letter on board,
she is liable to be interrupted in her foyage, and
carried in for adjudication, udder the ordinary rules
of the Prize Court, independent of the conventional
law, the object of the contracting parties will be en-
tirely defeated. It is true, that free ships will still
make free goods ; but if the freedom of the ship
must be established by the tedious process of judi-
cial investigation, notwithstanding the provisions of
the treaty intended to exclude such investigation,
very little will be gained for the security of neutral
commerce. The terms used in the passport, with
which this ship was furnished, are precisely synony-
mous with those of the treaty. The treaty does not
say, that the passport shall express the individual
proprietary interest of any particular Spanish sub-:
ject, but that it shall express the property of the
ship. How can a ship be a u Spanish ship," with-
out being Spanish property ? And how can it be
Spanish property, without being the property of the
subjects of Spain ? This is the effect of the terms,
as used in a policy of insurance, and other commer-
cial transactions. A mere license to a foreign ship,

OF THE UNITED STATES. 65

documented as a foreign ship, conferring oh her the ia»i<
privileges of Spanish trade, by a fictitroos adoption mj^mfabi*
similar to that which gave rise to the British rule of lobelia.
1766, relative to the colonial trade, would not make
her a Spanish ship. And even if Spain should abuse
the immunity conferred by the treaty, it is no reason
why this Court should dispense with its obligations.
It is for the legislative authority to determine when
political considerations Will justify this country in
suspending any of the provisions of a foreign treaty.
The Court must take the law from the treaty-ma-
king power, or from the higher legislative ptfwer
dispensing with the obligations of a treaty.

The cause was continued to the next term for ad-
visement

At the present term the opinion of the Court was February 22a,
delivered by

Mr. Justice Stoky. This cause was heard upon
the whole evidence, introduced by both parties, at
the last term ; and as it embraced several points of
great importance and difficulty, the Caw t, eti titefo
motUj directed one of those points to be reargued ;
and another, including a final construction of the
Spanish treaty in matters of deep and universal in-
terest, was reargued upon ttfe Application of thti
Government itself. The last argument Was heard
at so late a period of th* session, that it Was found
impracticable ft* all of us to prepare deliberate opi*
niontf, and (he caus* was ordered by the Cottrt 16 ft*

Vat.. V*. 0

66 CASES IN THE SUPREME COURT

1821. continued for advisement. ' The Court has now

v^/-^ come to a result, which I am directed to pronounce.

Isabella. A preliminary question was raised at the original

SSr&aVSt argument, that the libel ought to be dismissed, be-

i! aAd^Stion cause the capture was made without public autbori-

twe^lythe Go" ty, and by a non-commissioned vessel. Whether

the captors, this be so or not, we do not think it material now to

with which the . . .

claimant has inquire. It is a question between the Government

nothing to do. J * ,

and the captors, with which the claimant has nothing
to do. If the ship and cargo be enemy's property,
it cannot be restored to the claimant. If the captors
made the capture without any legal commission, and
it is decreed good prize, the condemnation must,
under such circumstances, be to the Government
itself. If with a commission, then it may be to the
captors. But in any view, the question is matter of
subsequent inquiry after the principal question of
prize is disposed of; and the Government may, if
it chooses, contest the right of the captors by an in-
terlocutory application after a decree of condemna-
tion has passed, and before distribution is decreed.
The claimant can have no just interest in that ques-
tion, and cannot be permitted to moot it before this
Court.

Having disposed of this point, which, indeed, has
been long recognised as a settled principle of the law
of prize, the path is open for the consideration of the
other points of the cause.

The captors contend, that the whole evidence es-
tablishes, that the ship and cargo are enemies pro-
perty, the property of British subjects disguised under
Spanish documents, and bound to a British port.

OP THE UNITED STATES. 67

That the voyage had its origin iu London, and was ■ 1821.
to terminate there ; and that the usual frauds of false J^T^

The Amiable

papers, false destination, and suppression of evi- Isabella.
dence, have been resorted to for the purpose of giv-
ing a neutral character to hostile interests.

The counsel for the claimant deny the matter of
fact, and assert, that the proprietary interest of ship
and cargo is bona fide Spanish ; and endeavour, with
great ingenuity and force, to explain away the diffi-
culties with which it is admitted, on all sides, this
part of the cause is surrounded. If this ground
should be thought not to be entirely and satisfacto-
rily made out, the counsel for the claimant farther
contend, that the ship was duly documented as a
Spanish ship, according to the stipulations of the
Spanish treaty of 1795 ; and that the effect of those
stipulations is to preclude all inquiry into the pro-
prietary interest of ship and cargo. Of the former,
because the passport is conclusive evidence pf the
national character and ownership of the ship, which
all persons are estopped to deny ; of the latter, be-
cause, by the treaty, free ships make free goods, and
the national character of the cargo becomes wholly
immaterial.

To this point, which, if settled one way, is deci-
sive of the cause, the counsel for the captors have
given several answers. 1. That the passport of this
ship was obtained by fraud, and this is always in-
quirable into, and vitiates all, even the most sacred in-
struments and records. 2. That the passport is not
conformable to the treaty, not having been issued by
royal authority, or authenticated by the royal Go-

(fo - CASES IN THE SUPREME COURT

18^1. T-ernment, bat issued by a mere colonial Governor;
s^v-«w an(j ^jjj. s|1€j, as it jS it j^g 00t state the gjjip to.

Tb* Amiable .. ....

JtataUa. be owned by Spanish subjects, which is indispensa-
ble under the treaty. 3. That the substituted proof
required by the 17th article of the treaty, where the
passport is not regular, must be such as is subject to
the thorough examination of the Prize Court.
4. That the form of the passport, referred to in the
17th article of the treaty, never having been annexed
to it by the contracting parties, that article, so far a?
it purports to give any effect to passports, is inopera-
tive and imperfect, and the imperfection cannot be
supplied, hy any judicial tribunal.

Such are the leading propositions, pressed with
great ability and earnestness into the discussion of
this cause, by the respective parties. They embrace
principles of international law of vast importance ;
they embrace private interests of no inconsiderable
magnitude ; and they embrace the interpretation of
a treaty which we are bound to observe with the
nqost scrupulous good faith, and which our Govern-
ment could not violate without disgrace, and which
this Court could not disregard without betraying its
duty. It need not be said, therefore, that we feel
the responsibility of our stations on this occasion,
and that in delivering our opinion to the world, we
Jiave pandered on it with great solicitude and delibe-
ration, and have looked to consequences no farther
than the sound principles of interpretation and inter-
national justice required us to look.

The point to which the Court will first direct it?
attention, is that last made, viz. whether the 17th

OP THE UNITED STATES. 69

article of the treaty of 1795, so far as it respects isfci.
passports, is inoperative and imperfect in conse- T^7^^,
quence of the omission to annex the form of the pass* Isabella,
port to the treaty. This is a very delicate and in- 5TbJ^SSwb
teresting question. Sffi^fe

The 17th article provides, uthat in case either v££bi££l
of the parties hereto shall be engaged in a war, the ^cncenof°X
ships and vessels belonging to the subjects or people nexthe^nt^
of the other party, must be furnished with sea letters **•■*•
or passports, (patentee de mar o pasaportes,) express-
ing the name, property, (propiedad,) and bulk of
the ship ; as, also, the name and place of habitation
of the master or commander of the said ship, that it
may appear thereby, that the ship really and truly
beloogs to the subjects of one of the parties, which
passports (dichos pasaportes) shall be made out and
granted according to the form annexed to this treaty."
The article proceeds to declare, " that such ships,
being laden, are to be provided not only with pass-
pores, as above mentioned, but also with certificates
containing the several particulars of the cargo, the
place whence the ship sailed, that so it may be
known whether any forbidden or contraband goods
be on board the same; which certificates shall be .
made out by the officers of the place whence
the ship sailed, in the accustomed form ; and if
any one shall think it fit or advisable to express
in the said certificate, the person to whom the
goods on board belong, he may freely do so ;- with-
out which requisites they may be sent to one of the
- ports of the other contracting party, and adjudged

70 CASES IN THE SUPREME COURT

i82i. by the competent tribunal, according to what is
ThTAmiabie a")0ve set f°rth> that all the circumstances of the
Isabella, above omission, having been well examined, . they
shall be adjudged to be legal prizes, unless they shall
give legal satisfaction of their property by testimony
entirely equivalent." In point of fact, no form of a
passport was made out and annexed to the treaty.
The case, then, now before us, is not within the letter
of the treaty, for as no form is prescribed, the docu-
ments found on board cannot be compared with any
form ; and until that comparison is made, it is im-
possible to say whether the stipulations originally in-
tended by the treaty have been exactly and literally
complied with or not. There is no room here left
for interpretation, on account of ambiguous language
of the parties. They have expressed themselves in
the clearest manner, and it is to the passport, whose
form is to be annexed to the treaty, and to none
other, that the effect intended by the treaty, whatever
that may be, either as conclusive or prima facie evi-
dence of proprietary interest, is attributed. Into the
reasons whjf this form was omitted to be annexed
to the treaty, we are not permitted judicially to in-
quire. It may have been by accident, or by design,
from difference of opinion as to what should be the
solemnities accompanying it, or from a willingness
to leave it to future negotiation. Can this Court
annex a form to the treaty ? Can it supply the defi-
ciency of the treaty, and give effect to it in the same
manner, as if no form were referred to ? Can it look
to the stipulations, and decide for itself what the par-
ties regarded as substance, and what as mere form ?

OF THE UNITED STATES. 71

Can it say that the stipulations in the text would isai.

hare been agreed to without the auxiliary form of
the passport ? Can it decide judicially , that under no Isabella.
circumstances the form of the passport could be of
the essence of the stipulations? These are grave
questions, and are not to be lightly answered. They
deserve and require deliberate consideration. We
have given it ; and our opinion will now be deli-
vered.

In the first place, this Court does not possess any
treaty-making power. That power belongs by the
constitution to another department of the Govern-
ment ; and to alter, amend, or add to any treaty, by
inserting any clause, vt hether smalt or great, im-
portant or trivial, would be on our part an usurpa-
tion of power, and not an exercise of judicial func-
tions. It would be to make, and not to construe a
treaty. Neither can this Court supply a casus omis-
sus in a treaty, any more than in a law. We are to
find out the intention of the parties by just rules of
interpretation applied to the subject matter ; and ha-
ving found that, our duty is to follow it as far as it
goes, and to stop where that stops— whatever may
be (he imperfections or difficulties which it leaves
behind. The parties who formed this treaty, and
they alone, have a right to annex the form of the
passport. It is a high act of sovereignty, as high as
the formation of any other stipulation of the treaty.
It is a matter of negotiation between the Govern-
ments. The treaty does not leave it to the discre-
tion of either party to annex the form of the passport;
it requires it to be the joint act of bothy a^d that act

72 CASKS IN THE SUPREME COURT

mi. te to be expressed by both parties in the only man-
wJl^^miiW* ner known between independent nations^— by a so-
Isabella, lemn compact through agents specially delegated,
and by a formal ratification.

Nor is there any thing strange or singular in lea-
ving matters of this sort to be settled by future ne-
gotiations. In our treaty with Prussia of 1785, the
14th article contains a provision as to passports, in
substance like that of the 17th article of our treaty
with Spain, except that it declares that these a pass-
ports shall, be made out in good atid due form, to
be settled by conventions between the parties, when-
ever occasion shall require." This stipulation ma-
nifestly contemplates that the form of the passport is
to be a solemn act of the treaty-making power of
both Governments, and that neither Government has
authority in its discretion to use a form which, shall
be binding, without its consent* upon the other con-
tracting party.

In the next place, this Court is bound to give ef-
fect to the stipulations of the treaty in the manner
and to the extent which the parties have declared,
and not otherwise. We are not at liberty to dispense
with any of the conditions or requirements of the
treaty y or to take away any qualification or integral
part of any stipulation, upon any notion of equity 6r
general convenience, or substantial justice. The
terms which the parties have chosen to fix, the forms
Which they have prescribed, and the circumstances
fender which they are to have operation, rest in the
exclusive discretion of the contracting parties, and
Whether they belong to the essence or the modal

Or THE UNITED STATES. 73

parts of the treaty, equally give the rule to judicial isal.
tribunals. The same powers which have contracted, J-^y'V.

'. r . t The Amiable

are alone competent to change or dispense with any Isabella.
formality* The doctrine of a performance cy pres,
so jusjt and appropriate in the civil concerns of private
persons, belongs not to the solemn compacts of na-
tions, so far as judicial tribunals are called upon to
interpret or enforce them. We can as little dis-
pense with forms as with substance*

In the next place, we cannot admit that the an*
nexation of the form of the passport was, in itself,
(supposing we had a right to inquire into it) a mat-
ter of small moment or importance, so that the omis-
sion could be dispensed with, as not belonging to the
substance of the treaty. It was competent to the
parties, by the particularity of the form, to have qua-
lified the general expressions. of the article, and to
have made that determinate, which, upon the face of
the article, stands indeterminate. It is, for instance,
indeterminate upon the face of the article, whether
there is to be a specification of the names of the own-
ers of the ship, or only a general declaration that the
owners are Americans or Spaniards. It has also been
contended here, and is certainly susceptible of doubt,
whether the passport was to express the individual
ownership, or the national character of the ship* So
the solemnities to be observed in granting the pass-
port, the oaths to be made by the parties, the persons
by whom they were to be verified, are all left inde-
terminate by the treaty. These might have been,
and looking to the requisitions of other treaties, must
have been explained and settled by the form annexed

Vot. VI. 10

74 CASES IN THE SUPREME COURT

1821. to this treaty. The 25th article of the Dutch treaty
^^sy of 1782, is substantially the same as the 17th article
Isabella, of the Spanish treaty ; and the form of the passport,
certificate, and sea letter annexed to that treaty, re-
duce to a perfect certainty every circumstance which
has been already mentioned. Other qualifications
and limitations might have been added, in the plea-
sure of the parties. It is impossible, therefore, for
this Court, judicially, to say what such passport
might or would have contained. We may indeed
conjecture, but in this conjecture we may err ; and
to assert what it would be, in Uteris, would be to ex-
ercise a sovereign control over the compact itself.

Nor are the circumstances already stated, mere
form, or diplomatic ceremony. They might well
have entered into the very substance of the stipula-
tion. The counsel for the claimant alleges, that
the passport, intended by the treaty, was to import
perfect, unimpeachable verity ; that it was to have
a sanctity beyond that which is granted to any
other solemn instrument. Fraud would not vitiate
it, nor the most direct, unequivocal breach of good
faith, or abuse of the passport, bring its protecting
virtue into question. Assuming for the purpose of
argument, that this is true, the form of the passport,
and the solemnities accompanying it, were of the deep-
est interest and importance to both nations. It was
vital to the treaty ; vital to the acknowledged rights
derived under the law of nations. The immunity
intended by the treaty, in this view of it, was a de-
rogation from the general belligerent rights of both
parties. They might be willing to confide the issu-

OF THE UNITED STATES 75

ing of such passports to the Spanish high officers of mi.
state with the royal approbation and signature, or with TN^^/^1
the corresponding signatures of our own Secretary of Isabella.
State and President. They might have full faith
and confidence, that under such guards, the danger
of abuses would be very much diminished, if not en-
tirely checked. But they might not be willing to
trust to the integrity, discretion, and watchfulness of
subordinate agents ; to officers of the customs ; to
colonial Governors, or commanders in distant Pro-
vinces. In point of fact, our own passports have issued
under the authority and signatures of our highest
executive officers. What reason has this Court to
presume that our Government would accept of a
verification by inferior officers of Spain ? What
reason has this Court to presume, that our Govern-
ment would have been satisfied with a passport sign-
ed by a colonial Governor for want of royal pass-
ports ? It has not been so stipulated in the treaty.
It has not, in terms, dispensed with the annexation
of the form of the passport to the treaty. Even if
one Government had been willing to dispense with *
it, it remains to be shown, that the other was also
willing. And if both were willing, it would still
remain to be shown, that the act of dispensation was
consummated by. a solemn renunciation ; for the ob-
ligations of the treaty could not be changed or vari-
ed but by the same formalities with which they were
introduced ; or at least by some act of as high an
import, and of as unequivocal an authority. All
that can be said in the present case, is, that the sub-
ject of the annexation of the passport was taken ad

76 CASES IN THE SUPREME COURT

i82i. refer endam by the parties. They had competent
Th^^bi aut^l0"t7 3° to do ; and this Court is bound to pre-
Isabeiia, sume, that they had good reasons for their conduct.
It is far more consistent with every fair interpreta-
tion of the acts of the Government, to suppose, that
the form of the passport was postponed with a view
to the suspension of the article until the subject
was more deliberately considered, or could be more
conveniently attended to, than to suppose that words
of reference were used without meaning, and forms
carrying with them such important and interesting
solemnities, and such obligatory force and dignity,
were hastily abandoned at the very moment they
were studiously sealed to the text. Unless this
Court is prepared to say, that all forms and solemni-
ties were useless and immaterial ; that neither Go-
vernment had a right to insist upon a form after
having assented to the terms of the article ; that a
judicial tribunal may dispense with what its own
notions of equity may deem unimportant in a treaty,
• though the parties have chosen to require it ; it can-
not consider the 17th article of this treaty as com-
plete or operative, until the form of the passport is
incorporated into it by the joint act of both Govern-
ments.

Upon the whole, it is the opinion of the Court, in
which opinion six judges agree, that the form of the
passport not having been annexed to the 17th article
of the treaty, the immunity, whatever it was, intend-
ed by that article, never took effect; and therefore,
in examining and deciding on the case before us, we
must be governed by the general law of prize.

OF THE UNITED STATES. 77

This view of the case renders it unnecessary to 1821.
consider the other points made by the counsel for v-*~v~^/ .

The Amiable

the captors, as to the effect of the treaty ; and we Isabella,
therefore give no opinion upon them.

It remains then to consider whether the ship and
cargo, now in judgment, are, in fact, neutral or hos-
tile property. The facts are extremely complicated,
and the evidence, in many instances, clashes so as to
forbid all hopes of reconciling it It cannot be dis-
guised too, that the claim is involved in much per-
plexity, and is shaded by some circumstances that
have not been entirely cleared away. If it were not
a task from which we could derive no general instruc-
tion, the whole evidence might be minutely ex*
amined, as to the questions of false destination, sup-
pression of papers, and use of false papers. But the
labour would be very great, and after all, would con-
duce to no important purpose. We shall content
ourselves, therefore, with a brief statement of the
result of our opinion.

It is to be recollected, that by the settled rule of Theomupr*
Prize Courts, the onus probandi of a neutral inte- ciaim^iT
rest rests on the claimant* This rule is tempered by
another, whose liberality will not be denied, that the
evidence to acquit or condemn, shall, in the first in-
stance, come from the ship's papers, and persons on
board ; and where these are not satisfactory, if the
claimant has not violated good faith, he shall be ad-
mitted to maintain his claim by farther proof. But
if, in the event, after full time and opportunity to
adduce proofs, the claim is still left in uncertainty,
and the neutrality of the property is not established

78 CASES IN THE SUPREME COURT

1821. beyond reasonable doubt, it is the invariable rule of
v^v^/1 Prize Courts to reject the claim, and td decree con-

Tbe Amiable rr,

Isabella, demnation of the property. There is another rule
is a rabTtaltire too, founded in the most salutary and benign princi-
demnation. pies of justice, that the assertion of a false claim, in
whole, or in part, by an agent of, or, in connivance
with the real owners, is a substantive cause of forfei-
ture, leading to condemnation of the property. These
principles are not alluded to in this case, for the pur-
pose of founding our present judgment upon them ;
for we do not rely upon it as a cape merely of rea-
sonable doubt ; but to show that a case less strong
might justly have supported the decree, we feel our-
selves bound to pronounce — of condemnation.
Determination We can no t resist the conclusion, looking to the
of propn?te7 whole evidence, that this is a case where the whole

interest in this

c«m. mercantile adventure had its origin, in the house of

trade of Messrs. Von Harten and Gobel, a house do-
miciled in London. The ship was, beyond all ques-
tion, a foreign ship; but of what nation, and in
whose ownership at the time when she acquired
her ostensible Spanish character, is studiously con-
cealed., She came just before her naturalization
from New Providence ; and that naturalization was
procured, as we feel ourselves constrained to believe,
by an imposition practised upon the Spanish judicial
authorities, by means of a pretended lien under a
bottomry bond, supposed to be given for repairs.
The holder of the bond procured a judicial sale of
the vessel, became himself the purchaser, and after-
wards obtained the Spanish character by a nego-
tiation with the Spanish Colonial Government,

OF THE UNITED STATES. *jrg

making awkward apologies for bis asserted igno- ' 1*21.
ranee of the former ownership, and endeavouring v^v~x
to allay the well-founded distrust of that Govern- Isabella.
ment. To this very bonr the claimant has observed
a profound silence on this point, a source of just and
pregnant suspicion, although he has loaded the cause
with documentary proofs and affidavits on other
points. He has not chosen to give any information
as to the origin of the bottomry bond, or former
ownership of the vessel, or of the circumstances un-
der which the supposed lien was acquired. Yet
these facts would seem to have, lain immediately
within his reach. On board, too, of the vessel at
the time of the capture, was the special and confi-
dential agent of Messrs. Von Harten and Gobel, and
also the brother-in-law of Mr. Von Harten. Some
papers were thrown over board, others were con-
cealed, and others spoliated. The testimony of the
witnesses upon the standing interrogatories, was far
from satisfactory ; and it is extremely difficult to ex-
empt the agents on board the vessel from the impu-
tation of designed suppression of facts and prevari-
cation. The claimant, Mr. Munos, is the father-in-
law of Mr. Gobel, and claims this very valuable ship-
ment as his own property, asserting himself to be a
merchant now engaged in business. And yet it is
proved by a weight of testimony that seems difficult
to resist, that Mr. Munos has not been known to be
engaged in commercial business on his own account
for at least fifteen years before the time of this ship-
ment. And it is established in the most satisfactory
manner, and is indeed admitted by the claimant him-

80 CASES IN THE SUPREME COURT

1821. self, that on account of the foreign. character of Mr#
ThTAmiabie **obel, (the son-in-law of Mr. Munos,) all the fo-
isabeiia. reign business of Mr. Gobel has been constantly
carried on for several years under the cover of Mr.
Munos. These are a few of the extraordinary facts
of this case, and cbmbiniog them with the indica-
tions of the papers found on board* and the suppress-
ed documents which have reached the light ; the ve-
hement presumption, and almost written proof, that
Mr. Gobel, the admitted partner of the English house
of Von Harten and Gobel, was the stationed agent
of that house at the Havana ; and the fact, that the
destination was alternative, or double, to London or
Hamburg, or both; the conclusion is difficult to
overcome, that the cargo was the property of Messrs.
Von Harten and Gobel, or some other unknown
enemy proprietor, and covered by the Spanish cha-
racter of Mr. Munos. And the Court is constrain*
ed to consider the proceeding at the Havana as mere
machinery to naturalize an enemy's ship, and that
the ship, either previously belonged to Messrs. Von
Harten and Gobel, or some other enemy proprietor,
or was purchased at New-Providence on his or their
account. It is perfectly immaterial whether Mr.
Munos had any subordinate interest in the ship and
cargo or not. If his claim be substantially false in
the manner in which it is framed, having been adopt-
ed by him, he has justly incurred a forfeiture of any
such interest, by attempting an imposition upon the
Prize Court.

It is the judgment of the Court, that the decree of
the Circuit Court, condemning the ship and cargo.

OP THE UNITED STATES. 81

be affirmed, with costs. From sp much of this opi- mi.
nion as respects the question of proprietary interest ^^Tua
of vessel and cargo, three Judges dissent Isabella.

Mr. Justice Johnson. This is an appeal from
the sentence of the Circuit Court of North Carolina,
condemning this vessel and cargo as prize of war to
the Roger privateer.

The condemnation below appears to have pro-
ceeded on evidence of an hostile interest existing in
the ship. For, as to the cargo, it is not denied that
the proprietary interest is immaterial ; since, if the
ship be Spanish, the existence of an enemy interest
in the cargo, does not affect it. Yet, much of the
evidence and argument have been introduced to
prove the existence of an hostile interest in the car-
go ; but it has been with a view to maintain two po-
sitions: 1st. That it is a strong circumstance to
prove the vessel to be British property ; and, 2d. That,
though it be not enemy owned, yet, as both vessel
and cargo are claimed by the neutral, if it be proved
that he has attempted a fraud, the penal consequence
is the forfeiture of his own interest.

It cannot be denied, that there are many circum-
stances in the case, going strongly to prove too inti-
mate a connection, between this adventure, and the
mercantile transactions of the house of Gobel, con-
sisting of Gobel and Von Harten, a British mer-
chant. Nor is it entirely clear that Rahlives, who
appears in the machinery as supercargo, is not him-
self a participator in interest If I felt myself now
called upon to decide this case on the ordinary prin-

82 CASES IN THE SUPREME COURT

1821. ciples which govern the decisions of Prize Courts,
J^T^V. on neutral claims ; it must be acknowledged, that

1 he Amiable ■ • * i

Isabella, there is a good deal of evidence which must be re-
jected, in order to clear it from the tissue of difficul-
ties in which the circumstances involve it. Yet
there is one important consideration which rides
over all the unaccountable combinations of interest
which present themselves to the view of the Court
"Why should British property on board a Spanish ves-
sel have been disguised as Spanish ? There are ob-
vious reasons why Spanish property should have
been disguised as British ; for, it would have af-
forded protection against the only enemy a Spaniard
had to fear — the patriot privateer. But, as England
was at peace with all the world except America,
and enemy property secure. from American capture
in a Spanish vessel, it is difficult to conceive a reason
why this disguise should have been thrown over a
British cargo. The course, however, which I will
pursue in coming to a conclusion, precludes the ne-
cessity of disentangling the web, in which the inter-
ests of the claimant are wound up by the various cir-
cumstances of the destruction, mutilation, and con-
cealment of papers, and the questionable shape in
which several of the actors in the drama present
themselves to the view of this Court.

The claimant founds his right to restitution, on his
Spanish character, and the sufficiency of his Spanish
documents under the treaty. The captor contends,
that the documents found on board, were not of the
first order under the treaty, and that when let in t#

OP THE UNITED STATES. 83

■v

the production of substitutes, a plenary inquiry is 1821.
opened into proprietary interest i^A^tbie

Before entering upon these more general ques- Isabella,
tions, it is necessary to take notice of a preliminary
ground of condemnation, which, if it can be sustain- '

ed, anticipates every other inquiry. It appears, that
the vessel ieft the Havana under convoy of a British
frigate, and, it is contended that this circumstance is,
per se} a ground of condemnatipn.

This is, at least, a new ground in this Court ; and
it cannot be expected that it will meet with a very
favourable admission from a Court which has mani-
fested no disposition to multiply causes of condemna-
tion* Without being supposed to express any in-
clination to adopt the principle, I deem it sufficient
to remark, that if it could be admitted, it ought not
to be applied to a nation which needed that protec- _
tion against an existing and enterprising enemy ;
and which ought, therefore, to be considered, as
having sought it for that purpose, and not against a s

neutral, whose principles of conduct it had then no
reason to distrust. The Gulph of Florida, at that
time, swarmed with patriot privateers; and the con-
voying ship had, moreover, parted from the fleet be-
fore this capture was made. The conduct of this
vessel was perfectly pacific when overhauled by the
American cruiser. The utmost to which the Courts
of Great Britain have gone, has been to affect the
merchant vessel actually taken under convoy, with
the resistance or character of the convoying ship j
and when such a case shall occur, it will be time
enough for this Court to determine on the course it

84 CASES IN THE SUPREME COURT

1891. will adopt* At present I feel no inclination to go sd
J^Y^, much beyond those decisions as has been here coo-

Tfae Amiable J

Isabella, tended for.

On the principal question, it appears, that this ves-
sel was provided, at the time of her sailing, both
with a passport and certificate of her cargo. That
these papers were on board at the time of the cap-
ture, cannot be doubted ; they were both delivered
by the captain to the Registrar of the District Court*
the former marked A. No. 7; the latter, B. No. 1.
Some doubt arises whether they were both exhibited
prior to the capture ; but this is wholly immaterial
in the question of condemnation.

In behalf of the claimant it is contended, that on
the production of the passport and certificate, or bill
of lading of the cargo, he is entitled to restitution.
To this the captor objects, that the 1 7th article of
the treaty with Spain, contemplated a form of pass-
port intended to be attached to that treaty ; that as
no such form was settled by the two nations, the
claim must rest altogether upon the provisions of the,
loth artic e, and the proprietary interest is to be in-
quired into as in ordinary cases. But, if the con-
tracting parties are to be permitted to devise forms
of passports for themselves severally, then that this
is not a passport in the language of the treaty, but a
substitute for one, and is defective in not expressing
unequivocally that the ship was Spanish property.

On this part of the case it is proper to remark, that
it is not always easy for the criticising eye of the
common law, to expand to the enlarged views and

OP THE UNITED STATES. ' g&

remote perceptions which should govern the mind in H2i.
the construction of treaties. Yet nothing could be .^Y"?*?.

* ° The Araiablt

toore inconsistent with international law, than to ap- Isabella,
ply tp such instruments those scrutinising principles,
which enter into the construction of a special plea or
a criminal statute. From history, analogy, and po-
licy, as well as language, are to be gathered the
views of the contracting parties ; and however either
may be pressed by the application of conventional
stipulations to particular cases, or under particular
circumstances, not less is the obligation to execute
them in a spirit, not only of good faith, but of libe-
rality. Where no coercive power exists for compel-
ling the observance of contracts but the force of arms,
honour and liberality are the only bonds of union be-
tween the contracting parties, and all minor consider
rations are to be sacrificed to the great interests of
mankind.

fn the case before us, I see no reason for nullify-
ing the operation of the 17th article, for want of the
form which was in contemplation to be drawn up
and attached to the treaty. The substance of the
passport intended to be prescribed, is so copiously
exhibited, as to render it a matter of the simplest
effort to throw it into form. This, no doubt, was
the cause why the contracting parties manifested so
much indifference about carrying their intention into
effect. 1 am, therefore, content to give the same
effect to any instrument complying substantially with
this article, as ought to have been given to a passport
in a prescribed form. What is that effect ?

86 CASES IN THE SUPREME COURT

1821. This is easily ascertained by comparing the pro-

J^y^, visions oif the ioth, 17th, and 18th articles. By the

The Amiable *

Isabella, 15th, the principle is established, that free ships shall
make free goods, and that several branches of com-
merce which the modern law of nations has prohi-
bited to neutrals, shall notwithstanding be freely
prosecuted. But, knowing the endless litigation
which questions of proprietary interest give rise to,
and the sad depravity of morals exhibited by wit-
nesses in Prize Courts, the enlightened statesmen
who formed that treaty, resolved, by the 17th and
18th articles, to make the freedom of the ship to rest
upon documentary evidence in the first instance, and
evidence of property in those cases only, in which
the vessel was unprovided with the necessary docu-
ments; that each nation should be sovereign to
judge for itself in conferring upon its own vessels
the immunity secured by the treaty, and that the
acknowledged right of adjudication in the Courts of
the capturing power,, should be superseded, when a
vessel was found on . the ocean provided with the
documentary evidence stipulated for by treaty ; and
only revert, when the vessel, being unprovided witb
such documents, was obliged to resort to evidence of
property of a less solemn nature.

It is contended, that this is yielding an important
national right. What if it is ? It is a mutual re-
linquishment, and one made by the Government, not
by this Court. And although it operate against us
now, the time may come when the comity of Spain,
or her colonies, may extend the benefits of it to the
commerce q{ this country. But, be that as it may,

OP THE UNITED STATES. 87

if the relinquishment has been made, it is incumbent mi.
on us to observe it. And although it may not be so jJ^Swi
sensibly felt at present, the time is scarce gone by Isabel!*
when it was thought a highly beneficial stipulation
to this country. Spain was, at the date of that
treaty, a respectable naval power. Her relations
with Europe and the Barbary powers, often involved
her in wars. America abounded with ships and
seamen, and her prospects were favourable for the
enjoyment of peace. To carry on the commerce
of the West-Indies and Mediterranean, as the favour-
ite carriers of belligerent cargoes, was, therefore, to
us, a highly flattering object. And though occasion-
al impositions might be practised, it was, compara-
tively, a trivial consideration, and the chances mutual*
When abuses should become flagrant and intolerable,
it would have presented a just cause for dissolving
the treaty ; but it does not rest with Courts of jus-
tice to dissolve a treaty. A

As to considerations drawn from the impolicy of
discouraging the spirit of cruizing, 1 attach to them
very little importance. The most serious doubts
may well be entertained of the policy of giving en-
couragement to that species of enterprise. Certain
it is, that no nation can pursue it long without feel-
ing its demoralizing influence. It draws together a
race of men, from every quarter, who want for no-
thing but a legal pretext for indulging their appetite
for blood and violence ; and while their habits and
examples become popular, the rapid fortunes which
are occasionally acquired, render the most valuable
classes of a community dissatisfied with seeking

CASES IN THE SUPREME COURT

mi. competence by the slow progress of useful labour*
v^'^' It will not, perhaps, be too much to say, that this

The Amiable • l- • • *u- c

Isabella, country is, at this time, experiencing something of
the baneful effects which flow to the world from let-
ting loose the passions of men to gratify themselves
, with plunder. But, be this as it may, it is the direct
pbject of these articles, of this treaty, to cover com-
merce from capture ; and if a treaty is to be con-
strued with a view to effectuate its intent, that con-
struction which will afford the most ample protection
to commerce, will be most consistent with the views
which dictated this treaty. Could the language of
the treaty leave a doubt on this subject, it is histori-
cally known, that the policy of the United States, at
the time of its date, was, if possible, to annihilate
the right of cruizing against commerce. With ma-
ny ships, and a most flourishing trade, she had not
a vessel of war ; and while every other nation was
likely to be embroiled in wa-s, her policy was peace,
and her prospects favourable to the enjoyment of it.
To become the carriers of the world, was the ob-
ject to which her negotiations were directed ; and
could she have obtained the same stipulation from
all the rest of the European nations, she must have
succeeded greatly.

The example of other nations in the construction
of treaties is brought to the notice of this Court.
But, besides that the analogy in the cases referred
to is very remote, I cannot admit the force of any
example that contravenes general principles. It is a
melancholy truth, that nations and their Courts are
too often inclined to restrict or enlarge construction,

Or THE UNITED &TATES. 89

under a temporizing policy suggested by the pres- 1821.
sure or allurement of present circumstances. I will ^^^
endeavour to give this treaty the same construction Isabella.
against an American captor, as ought to be given it
in the Courts of the opposite contracting party.
And the day trtay arrive when American commerce
will have no cause to regret that' bur Courts have!
pursued liberal and enlarged views in adopting this
construction- 1

On the exceptions taken to the form of the pass-
port it is to be observed, that on the face of the in-
strument it is declared to be issued in default of royal
passports. From this circumstance, a doubt arose
whether it was an instrument of the highest autho-
rity/ This led to an inquiry at the highest sources
of information relative to the powers of the Governor
of Cuba to issue such passports. From the informa-
tion thus obtained, 1 am satisfied that his powers are
amply sufficient to support the authority of that do-
cument. Some very serious doubts also have been
raised relative* to the form of the instrument, particu-
larly that passage of it which has relation to the na-
tional character of the ship. The treaty requires
that it should set forth the name, property, and bulk
of the ship; also, the name and habitation of the
master, or commander. These requisites are all mi-
nutely complied with, unless we except that part
which related to the property of the vessel. The
words used with that view are simply fragata mer-
cante Espanola ; and a doubt has existed whether
this be a sufficient affirmance of the property or na-
tional character of the vessel. Nor has this doubt

Vol. VI. 12

90 CASES IN THE SUPREME COURT

1821. been removed without a careful reference to the
v^v-v/ passports of various nations. The result is, that in
babeib. e all of them the affirmance is general, without specify-
ing the individual proprietor* It is also in evidence
that this is the form known and used in Spain and
her colonies, as the passport of regularly documented
and acknowledged Spanish vessels ; and I feel my-
self bound to receive and acknowledge it as sufficient
in form and substance. '

Thus far the opinion was written, and prepared
to be delivered, prior to the argument ordered at the
instance of the Executive. I have seen no reason
to change a word of it, from any thing since heard.
On the contrary, the last argument has fully confirm*
ed me in its correctness. Thousands of imaginary
cases of fraud and collusion, have been suggested to
alarm the Court ; and it may be, that our Govern-
ment, having now a prospect of becoming a respec-
table naval power, and having experienced the acti-
vity and enterprise of our privateers in the late war,
may feel less disposed to promote the principles of
the armed neutrality, than ihey did formerly. This
conviction of former error has generally grown out
of the same change of circumstances in other states.
But it is not through the medium of Courts of jus-
tice that this change of sentiment is to develope it-
self. If this treaty was ever binding, it is equally
binding now; and in adjudicating between indivi-
duals, the same rules which would ever have been
applicable, ought to be religiously adhered to, under
all possible changes of interest or policy.

But the interests and apprehensions so eloquently

OF THE UNITED STATES. 91

pressed upon the notice of this Court are not real. mi.
ITiey are factitious ; and maj have their effect on a ^f^mwut
client's cause, but they are not the well understood Isabella.
interest, or the well founded apprehensions of the
Government* The execution of one treaty in a spi- *
rit of liberality and good faith, is a higher interest '

than all the predatory claims of a fleet of privateers.

What has this country to fear ? A practical an-
swer is always most satisfactory on such a question ;
with similar treaties existing with various other
powers, what real injury was sustained in the late
war ? The truth is, and every one conversant in na-
tional policy well knows, that there is always less
danger of imposition in reality than a limited view
of the operation of such a stipulation would sug-
gest. It is not tb^interest of the belligerent to fos-
ter the carrying trade of a commercial rival ; hence>
Great Britain would rather, in time of war, compel
her own vessels to sail under convoy, than permit
her merchants to use a neutral bottom. Nations are
generally jealous of permitting foreigners to hold do*
mestic tonnage, or use domestic names. There are,
commonly, privileges of trade attached to the ship's
character, and severe laws enacted against a prac-
tice which is always viewed as a fraud upon the Go-
vernment whose flag is thus acquired. Witness the
severity of our own laws in such cases.

If there is any nation in the world more interested
than all others in the liberal support of the doctrine
contended for by this claimant, it is the United
States. Oar chances of enjoying peace are much
geater than any other -, and if there, be a tendency

92 CASES IN THE SUPREME COURT

i82i. to war, it is with a nation which will not be driven
T^^j'1 to the necessity of making use of neutral bottoms.
Isabella. I cannot, therefore, really see why our administra-
tion should have been so seriously alarmed at the
* prospect of our deciding in favour of this Spaniard,
as has been urged upon this Court
. But, considerations of policy, or the views of the
administration, are wholly out of the question in this
Court. What is the just construction of the treaty
. is the only question here. And whether it chime in
' with the views of the Government or not, this indi-
vidual is entitled to the benefit of that construction.

The more I have examined this subject, the more
thoroughly I have been convinced that my view of
the construction of the treaty is the correct one,
viz. that national protection was to. depend upon
authentic documents, and not proprietary interest;
or more correctly, that each nation should be re-
stricted from looking beyond those documents. There
is one provision contained in all these treaties, which
sets this point, in my opinion, beyond all doubt
Which is, that in the case of convoy, the word of the
commander of the convoying ship is to be taken con-
clusively for the neutral character of every vessel in
the fleet. This is the substitute in the case of a
fleet for the passport of a single vessel. . I apeak of
authentic documents ; for the absurdity never was
imagined that a passport stolen or seized by violence
was to have the force of one regularly issued.

But it is contended, that it is due to Spain to pur-
sue these inquiries into proprietary interest, and due
, to the peace of both nations that such questions

OP THE UNITED STATES. 93

should be examined in Courts of justice, rather than 1821.
leave them to be the subjects of diplomatic remon- ^^^^^

' . The Amiabl

strance. This is a specious, but very Unsound argu- Isabella,
menu Have not the vexations of Courts of Vice-
Admiralty, and the violence of armed cruisers, been
the pregnant sources of half the commercial alterca-
tions of the last centqry ? This was the evil intend-
ed to be remedied, and whatever impositions might
flow from the remedy, it was well understood, that
the benefits of a commerce uninterrupted by the cu-
pidity of cruizing vessels, would more than compen-
sate. There is one consideration, which, on this
subject, is conclusive. No Sovereign can appear in -
Courts of justice to defend his subjects, and it was,
therefore, that a method was devised for taking such
questions from Courts of justice if possible, and re-
ferring them to another tribunal. Every stipulation
in the treaties^of that day, teems with the project of
ridding commerce of vexatious capture, and more
vexatious litigation. A better practical illustration
of the wisdom of such & measure cannot be imagined
than that which the present *ease presents.

But it has been earnestly and successfully con-
tended, that if such was the intention of the treaty,
it must fail altogether for want of the form of a pass-
port, contemplated in the 17th article.

Yet if there is any one question more clear of doiibt
than all others, I think it is this. For the fallacy of
the proposition admits almost of mathematical de-
monstration. This omission must have been the
result of ehher accident or design. It may have

94 CASES IN THE SUPREME COURT

1821. proceeded from accident between the negotiators in
TbTAmitbte Europe ; but after the receipt of the treaty, and its
habeiia. submission to the Cabinet and the Senate here, the
omission could not have been the result of accident
when it received the sanction of our government It
must then have been designedly omitted by our con-
stituted authorities. And for what purpose ? Will
any. one presume to suggest that it was a deliberate
fraud upon the other Government? calculated to
leave our Courts at liberty, on some subsequent day,
to declare the 17th and 18th articles in effect void?
Did we hold out to them the idea of having adopted
the provisions of those articles into our national code,
when we were conscious that they contained an in*
nate vice, calculated to defeat every beneficial effect?
If the argument on this point could meet the sanc-
tion of our Government, I would blush for it. From
the advocate of a captpr, it might have been expect-
ed ; but cannot lay claim to the sanction or counte-
nance of the American Government. I am sensible
that the cabinet would disavow such a doctrine.

But, it is urged with much emphasis, that we have
no right to annex a form, or to add a clause to the
treaty. It is not contended that we have. No mem-
ber of this bench entertains such a thought. But
why may not the contracting parties supply one ?
All the requisites being prescribed in language,, the
form and the substance are the same thing. If the
contract is complied with, what matters form ?
Whether it is substantially complied with or not,
must be a question for the Courts of the contracting
parties. But how ridiculous would it be, to be try-

OF THE UNITED STATES- 95

iog form, and shape, and size, like the ignorant Arab, isti.
where the treaty is substantially complied with. J^y^f

wi , • i . » i ■ . n The Amiable

Had it merely stipulated, that a passport, in a form Isabella.
prescribed, should be givep mutually, there would
have been something in the argument ; but in ex-
pressing with precision the substance of the instru-
ment to be given, it rend er% the devising of a form a
mere work of supererogation. If no cfther conclu-
sion is to be drawn from its omission, certainly this
may, that it was too trivial to be remembered.

In order to support the argument, that the absence
of the form nullifies the 17th and 18th articles of this
treaty, the attention of this Court has been drawn
to the provisions of the 14th article of the treaty
with Prussia. And it has been contended, that until
a form of a passport be adjusted between the two
nations, that article is also a dead letter. The con-
struction is one which could not be supported even
on a common law instrument. The words are,
" which passports shall be made out in good and
due forms, (to be settled by conventions between
the parties whenever occasion shall require.)" If the
Spanish treatyHs tp be construed by analogy to this,
the argument is directly on the other side. For these
words, obviously leave " the good and due forms1'
of these instruments to be devised by the parties
severally, and only stipulate for settling a form
by convention, ci whenever occasion shall require ;"
that is, whenever either shall be dissatisfied with the
form used by the other. The nations which, in the
very same article^ could repose such implicit faith in
each other's candour, as to leave the neutrality of

96 CASES IN THE SUPREME COURT

i8ei. whole fleets to be determined on the word of the

Amiabi conv°y*ng officer, merit more the confidence of each
Isabella, other, than to have imputed to them an evasion so
obvious.

As it became indispensable to assign some reason
for retaining these two articles in the treaty, if they
were to be held a dead letter for want of the form,
it has been suggested, that the only operation intend-
ed by them was to prescribe a law to the caprice or
violence of cruisers, and subject them to more ex-
emplary punishment than in ordinary cases.

No one who reads and compares these four arti-
cles, the 15th, 16th, 17th, and 18th, and considers
the historical events in which they originated, can
for a moment suppose, that this was the object
which led to the insertion of the two latter of those
articles. The intention was to ingraft into the law
of nations a great and a new principle. And al-
though power and cupidity may affect to sneer at it,
and melancholy experience cannot dismiss the ap-
prehension, that it is too etherial to subsist in this
nether atmosphere, yet it is one which philanthropy
will ever cling to, and justice cherjtfh. To ingraft
into this treaty the principles of the armed neutrality
was the object, and for this purpose the 15th article
declares those principles in detail. The 16th fur-
nishes the exceptions to them; the 17th prescribes
the evidence on which those privileges shall be con-
ceded ; and the 18th, after regulating the conduct
of cruisers towards vessels so protected, proceeds
to. declare, that " the ship, when she shall have
showed such passport, shall be free, and at liberty

OP TUB UNITED STATES. 97

to pursue her voyage, so as it shall not be lawful to tan.
molest or .give her chase in any manner, or force her T^^^
to quit her intended course." It is impossible for - Uabeiia.
language to be stronger. That the violation of these
stipulated privileges, would aggravate the punish-
ment to be inflicted on cruisers, is a consequence of
the thing provided for, not the thing itself.

Upon the whole, I am decidedly of opinion that
the claimant is entitled to restitution. Nor should I
find much difficulty in supporting his right on the
ground of proprietary interest. But entertaining the
opinion that 1 do on this preliminary point, there is
no necessity to examine into this part of the case.

Sentence affirmed.

Mr. Harper, for the claimant and appellant, moved Marches.
to vacate the decree of condemnation entered in this
cause, and that it should be again continued to the
next term in order to enable the claimant to procure
farther proof as to the annexation of forms of pass-
ports to the original Spanish treaty, and read an af-
fidavit annexed to a printed copy of the treaty, pub-
lished at the royal printing-office in Madrid, which
contained two forms of passport, which will be found
in the margin/

a Model* del Pamportc, 6 Paienie de Mar que $e concede & lot
Buquee para navegar en Amirica, citado en el Articvlo XVU.

Don Carlos, por la Gracia de Dios, Rey dv Castilla, de
Leon, de Aragon, de las dos Sicilias,de Jerusalem, de Navarra,
de Granada, de Toledo, de Valencia, de Galicia, de Mallorca,
de Sevilla, de Cerdena, de Corcoba, de Corcega, de Murcia,

Vol. VI. 13

98 CASES IN THE SUPREME COURT

i82i. The motion was opposed by the Attorney- Generd

and Mr. Whcaton, for the captors and respondents.

The Amiable
Isabella.

de Jaen, de los Algarbes, de Algezira, de Gibraltar, de laa Islas
de Canarias, de laa Indias Orientates y Occidentals, Islas y
Tierra-firme del Mar Oceano ; Arcbiduque de Austria, Duque
de Borgona, de Brabante y Milan, Conde de Abspurg, Flan-
des, Tirol y Barcelona, Sefior de Vizcaya y de Molina, &c.

Por quanto he concedido permiso a para que con

su nombrado de porte de Toneladas,

pueda salir del Puerto de con carga, y registro de

efectos de comercio, y transferirse al y restituirse a

Espana al Puerto de con expresa condicion de hacer

su derrota de ida y vuelta directamente a los senalados parages
de su destino, sin extraviarse, ni hacer arribada a Puertos Na-
cionales 6 Extrangeros, en Islas, 6 Tierra-firme de Europa, •
America, a menos de verse obligado de accidentes de otra su-
erte no remediables : Por tanto quiero, que el Presidente dela
Contratacion a Indias 6 el Ministro encargado del despacho
de Navios a aquellos Dominios, y el Intendente, 6 Ministro de
Marina del Puerto en que se equipare, concurran a facilitarle
quanto fuere regular 6 este fin, cada uno en la parte que le to*
care : el primero en lo respectivo a su habilitacion y carga ; y
el de Marina en lo que mira a Tripulacion, que debera compo-
nerse de gente matriculada, y constar que lo sea por lista cer-
tificada, que ha de entregarle, obligandose a cuidar de su con-
serracion, y responder desus faltas, segun previenen lasOrde-
nanzas de Marina.

Y mando a los Ufficiales Generates, 6 particulares Coman-
dantes de mis Esquadras y Baxeles, al Presidente, y Ministros
de la Contratacion a Indias, a los Comandantes, y Intendentes
de los departamentos de Marina, Ministros de sus Prorincias,
Subdelegados, Capitanes de Puerto, y otros qualesquiera Ofi-
ciales, Ministros, y Depeodientes de la Armada, a los Vireyes,
Capitanes, 6 Comandantes generates de Reynos y Provineias,
a los Gobernadores, Corregidores y Juaticias de los Pueblos de
la Costa de Max de mis dominios de Europa y America, a los*

OF THE UNITED STATES 99

Mr. Justice Story. Without giving any opinion mi.
upon the sufficiency of the evidence, to establish the T£f^^je

Isabella.

Officiates Reales, 6 Jueces de arribadas en eUos establecidos, y
a todos los demas Vasallos mios, a quienes pertenece, 6 perte-
necer pudiere, do le pongan embarazo, causen molestia, 6
detention ; antes le auxflien, y fatiliten lo que hubiere menes-
ter para su regular naregacion, y legitimo comercio : Y a los
V&ssallas y Sabditos de Reyes, Principes y Republican amigas
y aliadas mias k los comandaotes, Gobernadores 6 Cabos de sua
Provincias, Plazas, Esquadras, y Baxeles, reqaiero, que asimis-
mo no le impidan su libre navegacion, entrada, salida 6 de ten-
don en los Puerto*, k los quales por algun accidente se con-
duxere ; permitfcndole que en ellos se-bastimente, y proveade
todo lo que necesitare : A cuyo fin he mandado despachar este
Pasaporte, refrendado de mi Secretario de Estado, y de la ne-
gotiation de Marina, el qual yaldra* por el tiempo que durare
su viage de ida y vuelta ; y concluido que sea, le recogera el
Ministro que entendiere en su descarga : Y para su validation
y oso pondra a continuacion la nota que corresponded et que
concurriere a su despac&o. Dado en k de

mil setecientos

Yo El Reyy

PEDRO VARELA.

Model* del Pasaporte, o Patente de Mar que te concede a los
Buqw$ para navegar en Europa, cilado en el Articulo
XVII.

Don Carlos, por la Gracia de Bios, Rev de Castilla,
de Leon, de Aragou, de las dos Sicilias, de Jerusalem, de Na-
▼arra, de Granada, de Toledo, de Valencia, de Galicia, de
Mallorca, de Serilla, de Cerdena, de Cordoba, de Corcega de
Murcia, de Jaen,de los Algarbes, de Algezira, de Gibraltar, de
las Islas de Canarias, de las Iudias Orientates y Occidentals,
Islas y Tierra-firme del Mar Oceano ; Arcbiduque de Austria ;
Duque de Borgona, de Brabante y Milan ; Conde de Abspusg,
Flandes, Tirol, Barcelona, Senor de Vizcaya y de Molina, &c.

100 CASES IN THE SUPREME COURT

1821. probability, that the forms of passport now offered
ThTA^labte to the inspection of the Court were ever autborita-

Iqabella.

Por quarto he concedido permiso a
vecioo de para que con su>

Dombrado de porte de toneladas

pueda navegar, y comerciar en los Mares y Puertos de Europa,
tanto de mis Dominios, como de Extrangeros ; y singularmente
en los * con absolula probibicion de pasar a los

de Islas, 6 Tierra firme de America: Por taoto quiero, que
constando la pertenencia de la Embarcacion al referido

d a otro Vasallo mio de quien tenga poder»
se le permita equiparla con gente

de su misma Provincia, o de otra de mis Domi-
nios, habil a este efecto, segun lo prevenido en las Ordenanzas
de Marina, para salir k navegar, y comerciar en ella, bazo las
reglas establecidas-

Y mando a los Officiates generates, o particukres coman-
dantes de mis Esquadras y Baxeles ; a los Comandantes y In*
tendentes de los Departementos de Marina : & los Ministros de
sus Provincias, Subdelegados, Capitanes de Puerto*, y otros
qualesquier Oficiales y Ministros de mi Armada : a los Capita-
nes, 6 Comandantes generates de Provincias : a los Goberna-
dores, Corregidores, Jueces y Justicias de los Puertos de mis
Dominios, y a todos los demas Vasallos mios, & quienes perte-
nece, 6 pertenecer pudiere, no le pongan embarazo, causen
molestia, 6 detencion alguna ; antes le auxilien, y faciliten lo
que hubiere menester para su regular navegacion y legitimo
comercio : Y & los Vasallos y Subditos de Reyes, Principes y
Republican amigas y aliadas mias : a los Comandantes, Gober-
nadores, 6 Cabos de sus Prorincias, Plazas, Esquadras y Bax-
eles, requiero, que asimismo no le pongan embarazo en su
libre navegacion, entrada, salida, 6 detencion en los Puertos, k
los quales deliberadamente, 6 par accidente se conduxere, y le
permitan exercer en ellos su legitimo comercio, bafitimeotarse,
y proveerse de lo necesario para continuarle ; 6 cuyo fin he
mandado despachar este Pasaporte, refrendado de mio Secre

OF THE UNITED STATES. 10}

tively annexed to the original treaty, in the posses- iftsi.
sioo of the Spanish Government, the Court is of T^^^,e
opinion, that the motion for a continuance must be Isabel)*
denied. The passport found on board the Isabella,
is materially variant, berth in form and substance,
from the forms of passport now produced ; and to
the form of the passport actually annexed to the
treaty, and to no other, was the effect intended by
the treaty, whatever that effect may be, meant to be
attributed. The possession of that form, and not
of any other passport which might be substituted
for it, was of the very es&enee of the treaty. It is
clear, therefore, that even if the case were as the
claimant's counsel supposes, he could derive no be-
nefit whatever from it, because the treaty passport
was not on board ; and the case must, therefore, in
this respect, be judged by the rules of the Prize
Court, independent of the conventional law.

Motion denied.

tariode Estado,y de la Negociacion de Marina, el qual valdra,
y tendril faerza por termino de

contado desde el dia en que usare de el, segnn conate por la
Nota que a so continnacion se pusiere. Dado en

k de de

mil setecientos noventa

Yo El Rey,

PEDRO VARELA.

102 . CASES IN THE SUPREME COURT

1821.

(Common Law. Bills or Exchange.)

Bussard v. Levering.

Where the second day of grace falls on Saturday, it is the last day of
grace ; and notice of non-payment given to the drawer of a bill on
that day, after a demand upon the acceptor on the same day , is
sufficient to charge the drawer.

Notice to the drawer, by putting the same into the post-office, where
the persons live in different places, is good.

Error to the Circuit Court for the District of
Columbia.

Assumpsit against the defendant below, (Bossard,)
as drawer of an inland bill of exchange drawn at
Baltimore on the 3d of October, 1816, upon one
Martin Gillet, for $1,244 79 cents, payable six
months after date, and accepted by Gillet, Plea, non
assumpsit. On the trial of the cause, the plaintiff
produced and read in evidence to the jury, the bill,
acceptance, and protest; the hand writing of the re-
spective parties being admitted ; and gave evidence to
prove that after bank hours, on Saturday, the fifth of
April, 1817, being the second day of grace after the
said bill became due, the same was presented by a
notary to the acceptor for payment, and not being
paid, was duly protested. And on the same day
written notice was sent by the mail to the defendant,
residing at Georgetown, D. C. notifying him of the
non-payment and protest of the bill. And gave evi-
dence that such protest and notice, on the second
day of grace, under those circumstances, was confor-

OF THE UNITED STATES. 103

mable to the general usage in Baltimore. And no 1821.
other evidence of demand or notice was offered.
Whereupon the counsel for the defendant prayed the
opinion and instruction of the Court to the jury, that
the defendant, under the circumstances so given in
evidence, was not liable in this action, the drawer of
the said bill not having received due notice of the
dishonour of the same; but that the notice given up-
on the same day that the payment of the draft was*
demanded, to wit, on Saturday, the 5th of April,
1817, was not regular and sufficient to charge the
defendant in this action. Which instruction the
Court refused, and the defendant's counsel excepted.
A verdict and judgment thereon was rendered for
the plaintiff, and the cause was brought by writ of
error to this Court. *

This cause was argued by Mr. Jones for the plain- Feb. 7th.
tiff in error, and by Mr. Key for the defendant.

This Court were unanimously of opinion that, by

the general law merchant, notice of non-payment

given to the drawer on the last day of grace, after a

demand upon the acceptor on the same day, (and

Saturday, in this case, was the last day of grace, the

next day being Sunday) was sufficient to charge the

drawer ; and that the notice in this case given to the

drawer, by putting the same into the post-office, was

good.

Judgment affirmed.

CASES IN THE SUPREME CODRT

(Common Lait. PaoMmomy Notes.
LlNDENBERGER €t at. V. BEALL.

After demand of the maker of a note, on the third day of grace, notioe
to the endorser on the same day, is sufficient by the general law
merchant.

Evidence of a letter, containing notice, haying been put into the post-
efioe, directed to the endorser, at his place of residence, is suffi-
cient proof of the notice to be left tojthe jury, and it is unnecessa-
ry to give notice to the defendant to produce the letter before such
evidence can be admitted.

Error to the Circuit Court for the District of
Columbia.

Assumpsit against the defendant, (Beall,) as en-
dorser of a promissory iote, drawn by one Tunis
Craven, dated at Baltimore, October 22d, 1811, in
favour of the defendant, and by him endorsed to the
pdatmtifis, for 191 dollars 17 cents, negotiable at the
bank of Washington, payable six months after date,
At the trial the note was given in .evidence, and the
handwriting of the drawer and endorser admitted.
The plaintiffs farther proved, by a notary, that the
note was, by bim, demanded of the drawer, on Sa-
turday the 25th of April, 1812, being the day on
which it became payable, that is, the last day of
grace. And not being paid, notice of the non-pay-
ment thereof was enclosed in a letter addressed to
the defendant, at the city of Washington, and put
into the post-office at Georgetown. The notary
testified, that he had no recollection of these facts,

OF THE UNITED STATES. 105

fmd only knew them from bis notarial book, and the 1821.
protest made out at the time ; by which it appeared,
that a demand was then made of the drawer, and
the protest made, and notice sent; and from its being
his invariable practice to give notice either personal-
ly, or by letter, to the endorsers on the same day.
Nor did he then recollect that he addressed the letter
to the defendant in Washington, but he presumed
from his book, and protest, and his uniform practice,
that if he did not know where the defendant lived,
(which was probably the case when he received the
note,) he inquired, and ascertained his residence,
and addressed it properly. Upon which evidence
the defendant's counsel prayed the Court to instruct
the jury, that the above proof of notice was insuf-
ficient to charge the defendant as endorser of said
note, and that the plaintiffs were not entitled to re-
cover. Which opinion the Court gave. The plain-
tiffs' counsel excepted to the opinion. A verdict and
judgment thereon was rendered for the defendant
by the Court below, and the cause was brought by
writ of error to thitf Couft.

Mr. Key j for the plaintiff, was stopped by the ftkmy ?A
Court.

Mr. Jones and Mr. Law, for the defendant, con-
tended, that the notice was insufficient: (1.) be-
cause it was on the third day of grace ; and, (2.)
that there was no sufficient proof of notice having
been sent by mail, or of the contents of the letter
sent ; and that before secondary evidence would be

Va>l. VI. H

106 CASES IN THE SUPREME COURT

last. let in to prove the contents,, notice should bare been
M^^T^ given to the defendant to produce it

Bank of
Alexandria

Withers.

The Court were unanimously of opinion, that
after demand of the maker on the third day of grace,
notice to the endorser on the same day was suffi-
cient, by the general law merchant ; and that evi-
dence of the letter containing notice having been
put into the post-office, directed to the defendant, at
his place of residence, was sufficient proof of the
notice to be left to the jury, and that it was unne-
cessary to give notice to the defendant to produce
the letter before such evidence could be admitted.

Judgment-reversed.

(Local Law, Practice,)

The Mechanics' Bank of Alexandria
v, Withers.

Hie Circuit Court for the District of Columbia has authority to ad-
journ to a distant day, and the adjourned session is considered as the
same term.

Where the regular term began on the 3d Monday in April, and the
Court continued to sit, de die in diem* until the 16th of May, when
it adjourned to the 4th Monday of June; held, that a defendant,
against whom an office judgment had been entered on the 16th of

• tyay, had a right, under the laws and practice of Virginia, to appear
at the adjourned session, and have the default set aside, on giving
special bail, and pleading issuably.

OF THE UNITED STATES. 107

This cause was argued by Mr* Lee and Mr. mi.

Swann, for the plaintiff in error, and by Mr. Taylor, ^^^9
for the defendant in error. Bank of

Alexandria

Mr. Chief Justice Marshall delivered the opinion w»«*«*

* . * February 91k.

of the Court.

This is a writ of error to a judgment rendered
by the Circuit Court for the District of Columbia,
sitting in Alexandria, in an action of debt ; and the
case depends on the law* of Virginia, as they stood
when jurisdiction over the District was first exerci-
sed by Congress.

By the law of Virginia, the proceedings, until an
issue is made up in a cause, are taken in the clerk's
office at monthly rules, and judgments by default
become final on the last day of the succeeding term,
till which day the defendant in any such action has
a legal right to set the judgment aside,. and to plead
to issue. The Circuit Court held its regular session
in April, 1818, and continued to sit regularly till
the 16th day of May, when it adjourned to the
fourth Monday of the following June. The clerk,
considering the day on which the Court adjourned
as the last day of the term, and the judgments at the
rules as having, on that day, become final, issued an
execution on one of these judgments, which had
been obtained by the plaintiffs against Cave Withers
and his common bail. When the Cowt met in June,
the defendant appeared, and, On motion, was allow-
ed to set aside the office judgment, give special bail,
and pltfad to issue. The execution was, conse-
quently, quashed. In the course of the t*rm judg-

168

1821.

Mechanics'
Bank of

Alexandria

▼.

Wither*.

CASES IN THE SUPREME COURT

ment was confessed by the defendant, for the sura
claimed in the declaration, and a writ of error was
then sued out, the object of which was to reverse the
last judgment, and set aside all proceedings subse-
quent to the 16th of May, on the idea, that the judg-
ment rendered at the rules became final on that day.

The sole question in the cause is, whether the
adjournment from the 16tb of May to the fourth
Monday in June, was a continuation of the April
term, or constituted a distinct term ?

There being nothing in any act of Congress which
prevents the Courts of the District from exercising
a power common to all Courts, that of adjourning
to a distant day; the adjournment on the 16th of
May to the fourth Monday in June, would be a con-
tinuance of the same term, unless a special act of
Congress, expressly enabling the Courts of the Dis-
trict to hold adjourned sessions, may be supposed
to vary the law of the case. That act is in these
words : *' And the said Courts are hereby invested
with the same power of holding adjourned sessions
that are exercised by the Courts of Maryland."
These words do not, in themselves, purport to vary
the character of the session. They do not make the
adjourned session a distinct session. They were,
probably, inserted from abundant caution, and are
to be ascribed to an apprehension, that Courts did
not possess the power to adjourn to a distant day,
until they should be enabled so to do by a legislative
act. But this act, affirming a pre-existing power,
ought not to be construed to vary the nature of that
power, unless words are employed which manifest

OP THE UNITED STATES. 14J&

such intention. In this act, there are no such words, mi.
unJess they are found in the reference to the Courts
of Maryland. But on inquiry, we find, that in
Maryland, an " adjourned session" is considered as
the same session with that at which the adjourn-
ment was made* Since, then, the term at which
this conditional or office judgment was to become
final, was still continuing when it was set aside, and
the defendant permitted to plead to the declaration,
(here was no error in that proceeding.

Judgment affirmed.

(Chancery. Common Lav.)

Hopkins v. Lee.

A judgment or decree of a Court of competent jurisdiction is conclu-
sive wherever the same matter is again brought in controversy.

Bat the rule does not apply to points which come only collaterally
under consideration, or are only incidentally considered, or can
only be argumentatively inferred from the decree.

In an action at law by the vendee, against the vendor, for a breach of
the contract, in not delivering the thing sold, the proper measure
of damages is not the price stipulated in the contract, but the value
at the time of the breach

This rale applies to the sale of real, as well as perianal property :
but, Quctrc, Whether it is the proper measure of damages in the
case of an action for eviction ?

Error to the Circuit Court for the District of
Columbia.
This was an action of covenant, brought by the de-

Hopkins

Let.

f 10 CASES IN THE SUPREME COURT

mi. fondant in error, (Lee,) against the plaintiff in emir,
(Hopkins,) to recover damages for not conveying
certain tracts of military lands, which the plaintiff in
error had agreed to convey, upon the defendant ia
error relieving a certain incumbrance held by one
flawleigh Colston, upon an estate called Hill and
Date, and which Lee had previously granted and
sold to Hopkins, and for which the military lands in
question were to be received in part payment. The
declaration set forth the covenant, and averred that
Lee had completely removed the incumbrance, from
Hill and Dale. The defendant below pleaded, 1.
That he had not completely removed the incumbrance ;
and, 2. That he (the defendant below) had never been
required by Lee to convey the military lands to
him : and on these pleas issues were joined. Upon
the trial, Lee, in order to prove the incumbrance in
question was removed, offered in evidence to the
jury a record of the proceeding in Chancery, on a
bill filed against him in the Circuit Court by Hop-
kins. The bill stated, that on the 23d of January,
1807, the date of the agreement on which the pre-
sent action at law was brought, Hopkins purchased
of Lee, the estate of Hill and Date, for which he
agreed to pay 18,000 dollars: viz. 10,000 dollars in
military lands, at settled prices, and to give his
bond for the residue, payable in April, 1809. That
Lee, in pursuance of this agreement, selected cer-
tain military lands in the bill mentioned. That at
the time of the purchase of Hill and Dale1 it was
mortgaged to Colston for a large sum, which Lee had
promised to discharge, but had failed so to do, in
consequence of which Hopkins had paid off the

OP THE UNITED STATES. JH

mortgage himself. The bill then claimed a large isai.
sum of money from Lee for having removed this in-
cumbrance, and prayed that the defendant might be
decreed to pay it, or in default thereof} that the
claimant might be authorized by a decree of Chan-
cery to sell the military lands, which he considered
as a pledge remaining in his hands, and out of the
proceeds thereof, to pay himself. On the coming in
of Lee's answer, denying several of the allegations
of the bill, the cause was referred to a master, who
made a report, stating a balance of 427 dollars 77
cents, due from Hopkins to Lee. This report was
not excepted to, and the Court, after referring to it,
proceeded to decree the payment of the balance.
To this testimony the defendant in the present action
objected, so farasrespected the reading of the master's
report, and the decretal order thereon ; but the objec-
tion was overruled by the Court below, and the evi-
dence admitted. The counsel for the plaintiff in
error then prayed the Court to instruct the jury, that
in the assessment of damages, they should take the
price of the military lands as agreed upon by the
parties in the articles of agreement.upon which the
action was brought, as the measure of damages for
the breach of covenant. But the Court refused to
give this instruction, and directed the jury to take
the price of the lands, at the time they ought to have
been conveyed, as the measure of damages. To
this instruction the plaintiff in error excepted ; and a
verdict and judgment thereon being rendered for
the plaintiff below, the cause was brought by writ of
error to this Court.

J 12 CASES IN THE SUPREME COURT

1821. Mr, Pinkney and Mr. Swarm, for the plaintiff in

"jpf^ error, argued, ( 1 .) That the proceedings in Chancery
▼. were not admissible evidence in the action at law.
tobnJyVh. A verdict and judgment are indeed conclusive evi-
dence between the same parties ; but the other pro-
ceedings in the cause, and all that which is merely
inducement to the verdict or judgment, are not evi-
dence. So, a decree in Chancery is not conclusive
evidence of all the facts in the course of the cause.
Not that the decree is not conclusive as a res judi-
cata : but the decree here is no otherwise conclu-
sive than as giving the party, in whose favour it was
pronounced, a right to have it executed. It is not
evidence at all, unless it be conclusive evidence :
but it cannot be conclusive evidence of the details of
the cause, and of the incidental questions which
arose in its progress. (2.) The proper measure of da-
mages in the action at law, was the price agreed by
the parties. When a portion of the price of land is
to be paid for in other land, the pecuniary price, with
interest, is the rule at law, where specific perform-
ance i9 not called for. It is thus subjected to the
analogical rule in the Court of Chancery, where the
contract is rescinded, instead of being specifically
performed.

Mr. Jones and Mr. Lee, for the defendant in er-
ror, insisted, (1.) That the proceedings in Chancery
were not only admissible evidence in the suit at law,
but conclusive evidence. It may be safely admit-
ted that the decree is not evidence of such facts as
are only collaterally or incidentally drawn m quo*-

OF THE UNITED STATES. 113

tion, or can only be argumentative! y inferred from 1821.
the decree. But where the decree professes to be
founded on a particular fact, which was the principal
question in issue, and was ascertained by the mas-
ter's report, it must be conclusive in any other suit
between the same parties. (2.) As to the proper
measure of damages, it is the settled doctrine of this
Court, that in an action by the purchaser for a breach
of the contract of sale, the rule of damages is the
price of the article at the time of the breach/ It is
true, that the case of Shepherd v. Hampton, was a
gale of goods ; but it is not perceived that there is
any difference in the application of the principle to
real or to personal property.

Mr. Justice Livingston delivered the opinion of Ftb. im.
the Court

The first question which this Court has to consi-
der is, whether the proceedings in Chancery were
properly admitted in evidence in the Court below.

It is not denied, as a general rule, that a fact which conciMivcnew
has been directly tried, and decided by a Court of * m *"*'"*•
competent jurisdiction, cannot be contested again
between the same parties, in the same or any other
Court Hence a verdict and judgment of a Court
of record, or a decree in Chancery, although not
binding on strangers, puts an end tp all further con-
troversy concerning the points thus decided between
the parties to such suit. In this, there is and ought
to be, no difference between a verdict and judgment

a Shepherd v. Hampton, 3 Wheat. Rep. 200.
Vol. VI. 15

Lee.

114 CASES IN THE SUPREME COURT

1821. in a Court of common law, and a decree of a Court
^^7^ of equity. They both stand on the same footing, and
may be offered in evidence under the same limitations,
and it would be difficult to assign a reason why
it should be otherwise. The rule has found its way
into every system of jurisprudence, not only from its
obvious fitness and propriety, but because without
it, an end could never be put to litigation. It is,
therefore, not confined in England or in this country
to judgments of the same Court, or to the decisions
of Courts of concurrent jurisdiction, but extends to
matters litigated before competent tribunals in foreign
countries. It applies to sentences of Courts of Ad-
miralty— to ecclesiastical tribunals — and, in short,
to every Court which has proper cognizance of th#
subject matter, so far as they profess to decide the
particular matter in dispute. Under this rule, the
decree in this case was proper evidence, if it decided,
or professed to decide, the same question which was
made on the trial at law. For to points which came
only collaterally under consideration, or were only
incidentally under cognizance, or could only be in-
ferred by arguing from the decree, it is admitted that
the rule does not apply. On a reference to the pro-
ceedings at law, and in Chancery, in the case now
before us, the Court is satisfied that the question
which arose on the trial of the action of covenant,
was precisely the same, if not exclusively so, (al-
though that was not necessary,) as the one which
had already been directly decided by the Court of
Chancery. The bill, which was filed by the pre-
sent plaintiff in error, states, that on the 23d of Jauu-

Hopkins

Lee.

OF THE UNITED STATES. 115

ary, 1807, which is the date of the agreement on mi.
which the action at law is brought, Hopkins pur-
chased of Lee the estate of Hill and Dale, for which
he was to pay #18,000— that is, #10,000 in military
lands at settled prices, and the remainder in bonds,
payable in April, 1809. That Lee, in pursuance of
this agreement, selected certain military lands in the
bill mentioned. That at the time of the purchase of
Hill and Dale, it was mortgaged to Hawleigh Colston
for a large sum, which Lee had promised to discharge,
but that he had failed so to do, in consequence of
which, Hopkins had paid the mortgage himself.
The complainant then claims a large sum from Lee
for having removed this incumbrance, and prays that
the defendant may be decreed to pay it, or in de-
fault thereof, that the complainant may be authori-
sed, by a decree of the Court, to sell the military
lands, which he considered as a pledge in his hands,
and out of the proceeds to pay himself. Not a sin-
gle demand is stated in the bill, except the one arising
out of the complainant's extinguishment of the in-
cumbrance, which Lee had taken upon himself to
remove.

On Lee's answer coming in, denying several of
the allegations of the bill, the cause is referred to a
master commissioner, who, after a long investigation,
in the presence of both parties, and the examination
of many witnesses, makes a report by which Hop-
kins is made a debtor of Lee in the sum of #427 77.
On inspection of this report, it will be seen that the
chief, if not the only controversy between the par-
ties was, whether Hill and Dale had been relieved

116 CASES IN THE SUPREME COURT

i82i. from its incumbrance to Colston, by funds furnished
by Lee to Hopkins for that purpose, and that unless
that fact bad been found affirmatively, a report could
not have been made in Lee's favour. The Court, af-
ter referring to this report, and stating that it had not
been excepted to, proceeds to decree the payment of
this balance by the complainant to the defendant
From this summary review of the proceedings in
Chancery, the conclusion seems inevitable, that the
chief, if not sole matter in litigation in that suit, was
whether Hill and Dale had been freed of the incum-
brance to Colston, by Lee or by Hopkins, and that
the report and subsequent decree proceeded on the
ground, and established. the fact, that Lee had dis-
charged it, which was also the only point put in is-
sue by the first plea of the defendant in the action
of covenant. No rule of evidence, therefore, is vio-
lated in saying that this decree was properly admit-
ted by the Circuit Court. But if the decree were
admissible, it is supposed that the report of the mas-
ter ought not to have been submitted to the jury.
The Court entertains a different opinion. No rea-
son has been assigned why a decision by a proper
and sworn officer of a Court of Chancery, in the pre-
sence and hearing of both parties, according to the
acknowledged practice and usage of the Court, on
the very matters in controversy, not excepted to by
either party, and confirmed by the Court, should not
be as satisfactory evidence of any fact found by it,
as the verdict of a jury, on which a judgment is af-
terwards rendered. The advantage which a verdict
may be supposed to possess over a report, from its

OP THE UNITED STATES. 117

being the decision of twelve, instead of the opinion last,
of a single man, is perhaps more than counterbalan-
ced by the time which is allowed, to a master for de-
liberation, and a mere thorough investigation of the
matters in controversy. But a better and more satis-
factory answer is, that it is the usual, known, and
approved practice of the Court to whose jurisdiction
the parties had submitted themselves. But if this
document be witheld from a jury, how are they or
the Court to arrive at the grounds of the decree, or
a knowledge of the points or matters which have
been decided in the cause ? Without it, the decree
may be intelligible ; but the grounds on which it pro*
ceeds, or the facts which it means to decide, may be
liable to much uncertainty and conjecture. The re-
port, therefore, as well as the decree, was proper
evidence, not only of the fact that such report and de-
cree had been made, but of the matter which they
professed directly to decide. We are not now called
upon to say, whether, in those respects, they were
conclusive, as they -do not appear to have been offer*
ed with that view ; but without meaning tod eny to
them such effect, we only say, which is all that the
present case requires, that they were competent and
proper, in the absence of other testimony, to establish
the fact of the removal of the incumbrance by the
defendant Lee, from the estate of Hill and Dale.

In the assessment of damages, the counsel for the
plaintiff in error, prayed the Court to instruct the ju-
ry, that they should take the price of the land, as
agreed upon by the parties in the articles of -agree-
ment upon which the suit was brought, for their go-

J18 CASES IN THE SUPREME COURT

1821. vernment. But the Court refused to give this in-
struction, and directed the jury to take the price of the
lands, at the time they ought to have been conveyed,
as the measure of damages. To this instruction the
Ruieofdama- plaintiff in error excepted. The rule is settled in

gM on a breach » r

$ Sfe°bJtrSot d"8 Court, that in an action by the vendee for a
aJucfc1?1* ^ breach of contract on the part of the vepdor, for not
delivering the article, the measure of damages is its
price at the time of the breach. The price being
settled by the contract, which is generally the case,
makes no difference, nor ought it to make any;
otherwise the vendor, if the article have risen in va-
lue, would always have it in his power to discharge
himself from his contract, and put the enhanced va-
lue in his own pocket. Nor can it make any differ-
ence in principle, whether the contract be for the sale
of real or personal property, if the lands, as is the
case here, have not been improved or built on. In both
cases, the vendee is entitled to have the thing agreed
for, at the contract price, and to sell it himself at
its increased value. If it be withheld, the vendor
ought to make good to him the difference. This is
not an action for eviction, nor is the Court now pre-
scribing the proper rule of damages in such a case."

Judgment affirmed.

a As to the damages recoverable upon an eviction of real
property, Vide Ante, Vol. II. p. 62. Note c»

OF THE UNITED STATES-

(Local Law.)

1821.

Thatcher et al v. Powell et ah Lessee.

The execution by a public officer of a power to sell lands for the non-
payment of taxes,- must be in strict pursuance of the law under
which it is made, or no title is conveyed.

It is essential to the validity of the sale of lands for taxes, under the
laws of Tennessee, that it should appear on the record of the Court,
by which the order of sale is made, that the Sheriff had returned
that there were no goods and chattels of the delinquent proprietor,
out of which the taxes could be made.

The publications which are required by law to be made, subsequent
to the Sheriff's return, and previous to the order of sale, are indis-
pensable preliminaries to a valid order of sale.

In summary proceedings, where a Court exercises an extraordinary
power under a special statute, which prescribes its course, that
course ought to be strictly pursued, and the facts which give ju-
risdiction, ought to appear on the face of the- record. Otherwise,
the proceedings are not merely voidable, but absolutely void, as
being coram rum judice.

In construing local statutes respecting real property, this Court is
governed by the decisions of the State tribunals.

Krror to the Circuit Court of West Tennessee. ranarylsn^
This cause was argued at the last term, and at the
present term the opinion of the Court was delivered
by Mr. Chief Justice Marshall.

This was an action of ejectment instituted by the
defendants in error against the plaintiffs, to recover
640 acres of land in Montgomery county. Upon
the trial in the Court below, the lessors of the plain-
tiffs, in support of their title, read in evidence a grant

r.
Powell.

120 CASES IN THE SUPREME COURT

i8«K from the State of North Carolina to Stokeley Do-
)^^ naldson, dated the 12th of January, 1797; also a
deed for the same land from the said Donaldson to
John Love, dated the 13th of January, 1797, and
registered in Montgomery county, on the 26th of
July, 1815, upon a probate made in the County
Court of Grange county, at May term of the said
Court, 1814.

The defendants in that Court, to support their
title, read in evidence a transcript of a record from
the County Court of Montgomery county, at their
July session of 1801, as follows, viz :

" Haydon Wells, who was appointed by the
•Court of January term, 1801, to receive the list of
taxable property in Captain Boyd's company, re-
ports to Court a list of taxable property in the
county of Montgomery, not listed for the year 1 799,
nor taxes paid thereon, to wit : among others,
4 Stokeley Donaldson 2,560 acres on Yellow Creek
waters.' " Haydon Wells, T. P."

" Ordered^ that the clerk make out a certificate of
lands and tenements reported by Haydon Wells,
Esq. for the year 1799, that are liable to the pay-
ment of taxes, agreeably to the 14th section of ( an
act to ascertain what property in this State shall be
deemed taxable, and the mode of collecting, account-
ing for, and paying public taxes.9 And now, to wit,
at January term, 1802, the following proceedings
were had thereon, to wit, on motion, it is ordered,
adjudged, and decreed, that the tracts of land enter-
ed in the names of the following persons, be subject

OP THE UNITED STATES. 121

to the payment of taxes due thereon, agreeably to mi.
report of Haydon Wells, Esq. receiver of taxable
property, as delinquent for the year 1799, agreeably
to law, and that execution issue accordingly:"
(among others,) Stokeley Donaldson, 11 dollats 90
cents. Upon which order or judgment, an execu-
tion, bearing date the fourth Monday in March, 1802,
was issued to the sheriff of Montgomery county,
commanding him, that of die lands of Stokeley
Donaldson, reported to be in arrears for taxes for the
year 1799, he cause to be made the sum of 11 dol-
lars 90 cents, as, also, the sum of 1 dollar 40 cents,
and charges, &c. Upon this execution the sheriff
made the following return :

" Levied on 2133, and advertised agreeably to the
old ; not sold, because the new act which requires
it to be advertised in the Gazette did not come for-
ward till the day of sale.

" John Saunders, Sheriff M. C."

On the 1st of May, 1802, an alias execution issu-
ed, bearing date the fourth Monday in April, 1802, in
the words of the former, on which the sheriff made
the following return : " The within land sold agree-
ably to law, on the 23d of July, 1802, at seven
mills per acre." They also read in evidence a deed
from John Cocke, Sheriff of Montgomery county,
to Samuel Vance, one of the defendants, dated the
14th of April, 1808, reciting, that whereas John
Saunders, late Sheriff of Montgomery cootity, did,
on the 23d of July, 1802, by virtue of an execution
or order of sale, to him directed, from the Court of

Vol. VI. 16

122 CASES IN THE SUPREME COURT

1121. Montgomery county, expose to sale 2,560 acres of
land granted to Stokeley Donaldson, or so much
thereof as would be sufficient to satisfy the taxes
due thereon for the year 1799, agreeably to an act
of Assembly in such cases made and provided. And
whereas Morgan Brown became the purchaser of
2,229 6-7 acres of the said land at seven mills per
acre, he being the highest and best bidder, the taxes
and costs due thereoq being 17 dollars 10 cents;
and the said Morgan Brown having authorized a
deed to be made therefor to Samuel Vance; Now,
the said John Cocke, in consideration of the said
sum being paid to the said John Saunders, Sheriff
&c. doth sell and convey the said 2,229 6-7 acres of
land, &c. The said deed then described one tract
of 640 acres, the tract in question ; also, two other
tracts of 640 acres each ; also, one other part of a
survey of land of 309 acres granted to Stokeley
Donaldson.

The lessors of the plaintiffs then introduced grants
from the State of North Carolina to Stokeley Do-
naldson, all dated about the same time, for two dif-
ferent tracts of land of 640 acres each, a part of
which are those described in the said Sheriff's deed,
all lying upon the waters of Yellow Creek, and pro-
ved that the same lay in one connection of surveys
adjoining each other, but ihcse described in the
Sheriff's deed were of much the greatest value.

Upoajthis evidence the Court instructed the jury,
that it was for them to determine whether the said
lands in the said Sheriff's deed mentioned, were the
same lands which the former Sheriff Saunders had

OF THE UNITED STATES. I8S

sold or no£ If not the same land, then the said 1821.
Sheriff's deed was not good in law. And the Court
farther instructed the jury, that the said record, or
any thing therein contained, was not sufficient in law
to authorize the sale of the lands made by the said-
Sheriff Saunders, nor the deed aforesaid made to
the said Vance by the said John Cocke, the said
successor of the said Saunders, and that the said
sale and deed did not in law vest any title to said
lands in the said Samuel Vance.

To this instruction of the Court, the counsel for
the defendants excepted. In consequence of this in-
struction, the jury found a verdict for the plaintiffs,
and a judgment was accordingly rendered in their
favour. The cause was then brought by writ of
error to this Court.

The objections made on the record to the title
papers of the plaintiff, so far as respects their regis-
tration, have not been pressed in this Court, and do
not appear to be sustainable. The plaintiffs in error
rely principally on the deed made by John Cocke,
the sheriff of Montgomery county, on the 14th of
April, 1808, and insist that the instruction given by
the Circuit Court to the jury, on this point, is erro-
neous.

The validity of this deed depends on the act pass-
ed by the Legislature of the State of Tennessee, on
the 25th of October, 1797, .respecting the collection
of taxes. The 3d section of that act directs the
Court of each county, at its session, in the pponth of
January, in each year, to appoint a justice of the

124 CASES IN THE SUPREME COURT

18*1. peace, for each. captain's district in the county, to
receive lists of the taxable property, for the then
present year."

The 5th section makes it the duty of the sheriff to
discover, and report in writing, to the clerk of the
Court, such taxable property as may not have been
returned within the time limited by law.

The 6th section directs non-residents to return to
the Court an inventory of their taxable property.

The 9th section enacts, that if any non-resident
" shall fail, by himself, his agent, or attorney, to re-
turn his, her, or their taxable property, as by the act
directed, the property of such person, so failing, shall
be liable, and stand bound to pay a fine of fifty dol-
lars, and a double tax, to be collected and paid, as by
this act directed, and the justice shall report the said
property to the best of his knowledge and informa-
tion as aforesaid."

The thirteenth section directs the sheriff, in the
event of the non-payment of taxes by a specified
time, " to levy the same by distress and sale of the
goods and chattels of every person so neglecting."

And the 14th section directs the sheriff, in case
there shall not be any goods and chattels on which
distress may be made, to report the same to the
Court of the county, whose duty it is " forthwith to
ditect the clerk to make out a certificate of the
lahds and tenements liable for payment of the said
taxes, together with the amount of taxes and
charges due thereon." This is to be published, and
if no person shall pay the taxes and other charges,
within thirty days, the " Court shall enter up judg-

OF THE UNITED STATES. 125

ment for the amount of taxes due," &c. for which i«2i.
execution shall issue, under which execution the
land may be sold and conveyed by the sheriff.

That no individual or public officer can sell, and
convey a good title to, the land of another, unless
authorized so to do by express law, is one of those
self-evident propositions to which the mind assents,
without hesitation; and that the person invested
with such a power, must pursue with precision the
course prescribed by law, or his act is invalid, is a
principle which has been repeatedly recognised in
this Court. The validity of the sale and deed made
by the sheriff qf Montgomery county will then de-
pend on the regularity of the order under which the
sale was made, and on the question whether that
order, if erroneous, will still support the sale which
has been made in pursuance of it.

Previous to an order for the sale of lands for the
non-payment of taxes, the sheriff is ordered to levy
them by distress and sale of the goods and chattels of
the delinquent ; and if there be no such goods and
chattels, he is to report the same to the Court, as the
foundation of any proceeding against the lands. By
this act, no jurisdiction is given to the Court over the
lands of a person who has failed to pay his taxes,
until the sheriff shall report that there are no goods
and chattels out of which the taxes may be made.

This being an important fact on which the juris-
diction of the Court depends, it ought, we think, to
appear on record } either in the judgment itself, or in
the previous proceedings.

In this case no such report appears to have been

126 CASES IN THE SUPREME COURT

i8*i. made. Could it even be contended that this report
might be presumed, the answer is, that the terms of
the order exclude such a presumption. It would ap-
pear, that the report of the magistrate, that the land
in question had not been listed, was made in July,
1801, and that the Court immediately made that
order which the law directs to be made on the she-
riff's report, that there are no goods and chattels ; and
this order refers not to any report of the sheriff, not
to any deficiency of goods and chattels, but to the
report of the justice of peace, that the lands have
not been listed.

This is not the only defect which appears in these
proceedings. Previous to an order for a sale of land,
and subsequent to the report of the sheriff, certain
publications are to be made in the manner and form
prescribed by the act. These publications are in-
dispensable preliminaries to the order of sale. They
do not appear to have been made. The judgment
against the land was given at January term, 1802,
on motion, without its appearing by recital or other*
wise, that the requisites of the law, in this respect,
had been complied with, and that the tax still re-
mained unpaid.

We think this ought to have appeared in the re-
cord.

The argument is, that the judgment, for these
errors in the proceedings of the County Court, may
be voidable, but is not void ; that until it be reversed,
it is capable of supporting those subsequent proceed-
ings which were founded on it.

OF THE UNITED STATES. 127

We think otherwise. In summary proceedings, issi.
where a Court exercises an extraordinary power
under a special statute prescribing its course, we
think that course ought to be exactly observed, and
those facts especially which give jurisdiction, ought
to appear, in order to show that its proceedings
are coram judice. Without this act of Assembly,
the order for sale would have been totally void.
This act gives the power only on a report to be
made by the Sheriff. This report gives the Court
jurisdiction ; and without it, the Court is as power-
less as if the act had never passed.

In construing the acts of the Legislature of a
State, the decisions of the State tribunals have al-
ways governed this Court. In Tennessee, the ques-
tion arising in this cause, after considerable discus*
sion, seems to have been finally settled on princi-
ples which are thought entirely correct. The case
of lYancis* Lessee v. Washburn & Russell, reported
in 5 Haywood, is this very case, and was decided as
this case was decided in the Circuit Court On the
authority of that case, and on principle, the Court
is of opinion, that there is no error in the judgment
of the Circuit Court

Judgment affirmed.

128 CASES IN THE SUPREME COURT

1821.

a . *

(Practice.)

Randolph et at. v. Barbour et al.

Ad equity suit, where an appeal has been taken from the Circuit
Court to this Court, but not prosecuted, will be dismissed upon pro-
ducing" a certificate from the Court below, that the appeal has been
taken and not prosecuted*

FtbAtok. Mr. B. Hardin, for the respondents, moved to

docket and dismiss the appeal in this case, which
was a suit in Chancery, commenced in the Circuit
Court of Kentucky, and a decree entered, from which
an appeal was taken, but not prosecuted* He pro-
duced a certificate from the clerk of the Court be-
low to that effect.

The Court, stated that the case was within the
spirit of the 20th rule of Court, although that rule ap-
plied, in terms, only to writs of error.

Motion granted.

Order. — A certificate, from the Clerk of the Cir-
cuit Court for the District of Kentucky, stating that
an appeal had been taken in this case in May term,
1819, from the decree of the said Circuit Court, hav-
ing been produced and filed, and it appearing that
the record in said cause has not been filed : on mo-
tion of Mr. Hardin, of counsel for the respondents, it
is ordered, that the said appeal be and the same is
hereby dismissed."

a Vide new rule of Court of the present term. Ante,
Rule XXXII.

OF THE UNITED STATES

Mayhew

(Constitutional Law. Local Law.) _. v'

' Thatcher.

Mayhew v. Thatcher et al.

As by the laws of Louisiana, questions of fact in civil cases are tried
* by the Court, unless either of the parties demands a jury ; in an ac-
tion of debt on a judgment, the interest on the original judgment
may be computed and make part of the judgment in Louisiana,
without a writ of inquiry and the intervention of a jury.
The record of a judgment in one State, is conclusive evidence in ano-
ther, although it appears that the suit, in which it was rendered,
was commenced by an attachment of property, the defendant hav-
ing afterwards appeared and taken defence.

Error to the District Court of Louisiana.

This was an action of debt commenced by the de-
fendants in error against the plaintiff in error in the
District Court of Louisiana, upon a judgment ob-
tained in the Circuit Court of Massachusetts. The
original suit, in which the judgment was obtained,
was commenced by a process of foreign attachment,
according to the local laws of Massachusetts ; but
the defendant, Mayhew, subsequently appeared and
took defence. The cause was referred to arbitrators,
and judgment rendered upon their report against the
defendant, Mayhew, for the sum of #4,788 57 debt,
and $284, 33 cents costs. The defendants in er-
ror having declared upon this judgment against the
plaintiff in the District Court of Louisiana, the
plaintiff in error pleaded nil debet, to which plea
there was a general demurrer, and judgment being
rendered thereon for the defendants in error, for the

Vol. VI. 17

13$ CASES IN THE SUPREME COURT

wsa. sum of 5,072 dollars and 90 cents debt, with interest
"^^ thereon, &c. and the cause was brought before this
r. Court.

Tbatchei.

T*. totk. This cause was argued by Mr- C. J. IngersoU, for

N the plaintiff in error, and by Mr- Hopkinson and Mr.
Mills for the defendants in error/

m. istt. Mr. Chief Justice Marshall delivered the opi-

nion of the Court, that as by the local laws and prac-
tice of Louisiana, questions of fact in civil cases
were tried by the Court, unless either of the parties
demanded a jury, the interest upon the original
judgment in Massachusetts might be computed, and
make a part of the judgment in Louisiana, without
a writ of inquiry and the intervention of a jnry.
And that although the original suit was commenced
by an attachment, yet that the defendant, Mayhew,
bad personal notice of the suit, and afterwards ap-
peared and took defence, so that even supposing
there was any objection to the proceeding by attach-
ment, it was cured by the appearance of the defend-
ant, and bis litigating the suit.

Judgment affirmed.

« The latter cited Brown v. Van Braam, 3 Doll. 344.
Rennerv. Marshall, 1 Wheat. Be p. 216. to show that where the
action is brought for a sum certain, or which may be made cer-
tain by computation, judgment for the damages may be entered
up by the Court without a writ of inquiry.

OP THE UNITED STATES. 131

1821.

Farmers an4
(CowsirnmcML Law.) ^Mechanics'

Bank of
Pennsylvania

Farmers and Mechanics' Bank of Pennsylvania „ ▼•

South.

v. Smith.

An act of a State Legislature which discharges a debtor from all lia-
bility for debts contracted previous to his discharge, on his surren-
dering his property for the benefit of bis creditors, is a law impair*
nag the obligation of contracts within the meaning of the constitu-
tion of the United States, so far as. it attempts to discharge the
contract : and it makes no difference in such a case, that the suit
was brought in a. State Court of the State, of which both the
parties were citizens, where the contract was made', and the
discharge obtained, and where they continued to reside until the
suit was brought.

Error to the Supreme Court of the State of
Pennsylvania.

This was an action of assumpsit brought by the
plaintiffs in error, in the Supreme Court of the Com-
monwealth of Pennsylvania, against the defendant
in error, as endorser of a promissory note, made at
Philadelphia by one Edward Shoemaker, on the
6th of June, 1811, for 2,500 dollars, payable in six
months after date, and endorsed by the defendant to
the plaintiffs at the same plafee, on the same day*
The declaration was in the usual form ; and the de-
fendant pleaded, that on the 8th day of September,
1812, he was a citizen of the said Commonwealth,
residing in the city and county of Philadelphia, and
having resided there for more than two years before
that time ; and that being such citizen and resident,
he, the defendant, in conformity to the act of the

132 CASES IN THE SUPREME COURT

1821. Legislature of the said Commonwealth, passed on
v^v-w the i;jth 0f March, 1812, entitled, <« An act for the

Farmers and

Mechanics' relief of insolvent debtors residing in the citj and
Pennsylvania county of Philadelphia," did, on the said 8th day of
SnTith. September, 1 812, at the city of Philadelphia afore-
said, present his petition to Charles Jared lngersoll,
&c. the Commissioners appointed under and by vir-
tue of said act, &c. ; in which petition, he, the said
petitioner, did state his belief, that he was insolvent,
and did pray that he might be permitted to assign all
his estate and property for the benefit of his creditors,
and be discharged by virtue of said act. Whereupon
the said Commissioners did appoint Mathew Ran-
dall, &c. to be curators, to whom the defendant did
thereupon forthwith assign all his estate, real and
personal, in conformity with the provisions of the
said act. And the said Commissioners did then and
there appoint the second day of October, 1812, afore-
said, for the hearing the defendant and his creditors,
of which due notice was given according to the
provisions of the act aforesaid. Upon which day,
&c. the said petitioner did exhibit a true account and
list of all his creditors, and moneys due, and to be-
come due, and owing to them respectively by him j
and, also, an inventory and account of his estate,
real and personal, and of all interest of him, the said
petitioner, either present or contingent, in any thing
of value, and of all books, vouchers, and securities
relating to the same. And thereupon the said
Charles Jared Ingersoll, one of the said Commis-
sioners, did administer to him, the said petitioner,
the oath required by the said law, which was duly

OF THE UNITED STATES. 133

taken by him, the said petitioner, according to the i82i.
requisition of the said law. And, afterwards, &c. «^v"^'a

. . . , . ^ Farmers and

the said Commissioners did assign to Chandler Mechanic*'
Price, &c., who were duly nominated and appointed PcM?yivwiia
assignees, all the estate, real and personal, of him g^
the said petitioner, or which was of him the said
petitioner, at the time of the provisional assignment
so as aforesaid made to the curators aforesaid. And
the said Commissioners did appoint the 15th day of
October, then next, for a second examination of him
the said* petitioner. Upon which second examina-
tion, it appearing to the satisfaction of the said Com-
missioners, that the said petitioner had not concealed
any part of his property, &c., and he, the said pe-
titioner, having also, in all other things, conformed to
the provisions of the said act, the said Commissioners
did, then and there, give to him, the said petitioner, a
certificate, under their hands and seals, that he, the
said petitioner, had, in all things, conformed to, and
was discharged by, said act The plea also averred,
that the cause of action arose in the city and county
of Philadelphia, from contracts made within the
same, and that the plaintiffs and defendants were, at
the time the said contracts were made, and at the
time the causes* of action accrued, and at the time
the said act passed, citizens of the State of Pennsyl-
vania, and still continued to be citizens thereof. To
this plea there was a demurrer ; and judgment being
rendered thereon for the defendant, the cause was
brought by writ of error to this Court.

134 CASES IN THE SUPREME COURT

i$*i. This cause was argued by Mr. Hopkinson, for the

J^Z^T*^ plaintiffs, and by Mr. Sergeant, for the defendant

Mec^mnics'

FcMuyiTmma Mr. Chief Justice Marshall delivered the opi-
g^A nion of the Court, that this case was not distin-

Ftbruary iba. guishable from its formfr decisions on the same sub-
ject/ except by the circumstances, that the defend-
ant, in the present case, was a citizen of the same
State with the plaintiffs, at the time the contract
was made in that State, and remained such at the
time the suit was commenced in its Courts. But
that these facts made no difference in the cases.
The constitution of the United States was made for
the whole people of the Union, and is equally bind-
ing upon ail the Courts and all the citizens.

Judgment reversed.

Judgment. This cause came on to be heard on
the transcript of the record of the Supreme Court
for the Eastern District of the Commonwealth of
Pennsylvania, and was argued by counsel. On con-
sideration whereof, the Court is of opinion, that the
said Supreme Court for the Eastern District of the
Commonwealth of Pennsylvania, ferred in giving
judgment for the defendant, on the demurrer of the
plaintiffs to the plea of the said defendant. It is,
therefore, adjudged and ordered, that the judgment
of the said Supreme Court for the Eastern District
of the Commonwealth of Pennsylvania be, and

a Sturges v. CrowDinshietd, 4 Wheat. Rep. 122. M'Millaa
M'tteill, t<*. 209.

OF THE UNITED STATES. }$g

the same is hereby reversed and annulled- And it mi.
is farther ordered* that the said cause be remanded
to the said Supreme Court for the Eastern District
of the Commonwealth of Pennsylvania, with direc-
tions to enter judgment for the plaintiffs in the said
Court..

(Common Law. Construction or Statute.)

United States v. Wilkins.

Where, in a contract with the Secretary of War, for supplying the
troops of the United States with provisions, specific prices are stipu-
lated for rations issued at certain places mentioned in the contract;
and it is farther provided, that " should any rations be required at
any places not specified in this contract, the price of the same shall
be hereafter agreed on betwixt the public and the contractor;" if
the parties cannot agree upon the price for the rations thus requi-
red, a reasonable compensation is to be allowed* and is to be proved
by competent evidence, and settled by a jury ; and the contractor,
apon the trial, is at liberty to show, that the sum allowed by the
Secretary of War is not a reasonable compensation. ,

Under the 3d and 4th sections of. the act of the 3d of March, 1797,
c. 74. the defendant is entitled, at the trial, to the full benefit of
any credit in his favour, whether arising out of the particular trans-
action for which he was sued, or out of distinct and independent
transactions, which would constitute a legal or equitable set-off, in
whole or in part, of the debt sued for by the United States.

This was an action of debt brought in the District
Court of Kentucky against the-defendant, a former
contractor for supplying the troops of the United

136 CASES IN THE SUPREME COURT

1821. States with provisions. The defendant pleaded nil
debet. The attorney of the United States, to sup-
port the issue on the part of the United States, pro-
duced a certain account marked A. The counsel
for the defendant, to support the issue on his part,
produced the contract marked B. ; also, a paper
marked C, and an account for contingent claims,
marked D. By the contract entered into between
the defendant and the Secretary of War, on the 3d of
July, 1801, it was, among other things, agreed, that
the contractor should receive " for every complete
ration issued at the Chickasaw Bluffs, at Nashville,
at Bear Creek, on the Tennessee, or at any other
place on the road between Nashville and Bear Creek,
fourteen cents ;" and " for every complete ration
issued at any place in the Chickasaw or Chock taw
country, on the road between Bear Creek and
Natchez, eighteen cents and one half cent ;" and
that, " should any rations be required at any places,
or within any other Districts not specified in this
contract, the price of the same shall be hereafter
agreed on betwixt the public and- the contractor."

It appeared from the evidence, that at the time the
contract was entered into, the road from Nashville
to Natchez crossed the Tennessee river at the mouth
of Bear Creek, which empties into th6 Tennessee
river on the southwest side. That after the date of
the contract, a new road from Nashville to Natchez,
passing through the Chickasaw and Chocktaw
country, was cut out by the United States' troops,
which crossed the Tennessee river about twelve or
fourteen miles above the mouth of Bear Creek, and

Wilkin*.

OF THE UNITED- STATES. 137

about ten miles further from Nashville. That du- 1821.
ring the continuance of the contract, a cantonment S^T?'

, ,. U. States

was established on the southwest side of the Ten- v
nessee river, at the crossing point of the new road,
and in the Chickasaw country. That the rations on
which the two first deductions were made in the
paper marked C, were issued at this cantonment,
and on the new road as far as Bear Creek. That
supplying rations at the cantonment, and on the road
as aforesaid, was more expensive to the contractor
than it would have been at the mouth of Bear
Creek. That Fort Deposit is situated on the road
from Natchez to Nashville, on the northeast side of
the Bayou Piere, about half a mile above the Grind-
stone Ford. That when the contract was entered
into, the Bayou Piere was considered the Chocktaw
boundary ; but at the treaty afterwards held at Fort
Adams, it was discovered, that an old boundary line
existed between the Chocktaw Indians and the
French, twenty miles in advance from the Grind-
stone Ford, and this line was adopted in the treaty.
That at this post the rations were deposited, on which
the third deduction was made in the paper mark-
ed C.

On the trial of this cause, the following questions
occurred :

1. Whether, under the contract marked B., the
defendant was entitled to the sums, or either of them,
disallowed in the papers C. and D., which had been
presented to the proper officers, and by them disal-
lowed ?

2. If the defendant be not entitled to the amount
Vol. VI. 18

138 CASES IN THE SUPREME COURT

1821. claimed in the first, second and third items, or either
of them, in the paper marked C.f on the ground, that
the place at which the rations were delivered is not
specially provided for in the contract, has he a right
to show, that the sum allowed by the Secretary of
War for those rations is not a reasonable compensa*
tion ?

3. Upon such proof, is the defendant entitled to a
reasonable compensation for those rations to be as-
certained by the jury ?

4. If the defendant be entitled to any of the above
sums, can he be permitted to claim a credit for them
in this suit ?

The opinions of the Judges of the Circuit Court
being opposed upon these questions, they were or-
dered to be certified to this Court, according to the
act of Congress.

mrwry m. This cause was argued by the Attorney- General;
for the United States, and by Mr. Jones and Mr. B.
Hardin, for the defendant.

f&ru*ry i«ft. Mr. Justice Story delivered the opinion of the

a He cited the case of the Commonwealth y. Matlack,
4 Dall. 303. in which it was held by the Supreme Court of
Pennsylvania, under the statute of that State, that a debtor to
the Commonwealth, who was sued by it, could not indirectly
recover from the State a substantive, independent claim, by waj
of set-off, any more than he could directly recover a debt due
from the State by bringing a suit against it. He, also, cited
the United States v. Giles, 9 Cranch, 212. 228. to the
effect.

OP THE UNITED STATES, 13$

Court. This cas£ comes up from the Circuit Court 1*21.
of Kentucky, upon a division of opinion of the
Judges upon certain questions stated in the record.

It appears from the record ^ that the defendant, on
the 3d of July, 1801, entered into certain articles of
agreement with the Secretary at War, for supplying
the troops of the Udited States with provisions, at
certain places enumerated in the contract. Among
other things, the articles provide, that the contractor
should receive, " for every complete ration issued
at the Chickasaw Bluffs, at Nashville, at Bear Creek,
on the Tennessee, or at any place on the road be-
tween Nashville and Bear Creek, fourteen cents ;"
and, " for every complete ration issued at any place
in the Chickasaw or Chocktaw country, on the road
between Bear Creek and Natchez, eighteen cents and
one half cent ;" and that, " should any rations be
required at any places or within any other Districts
not specified in this contract, the price of the same
shall be hereafter agreed on betwixt the public and
the contractor.'9

At the time the contract was entered into, the
road from Nashville to Natchez crossed the Ten*
nessee river at the mouth of Bear Creek, which
empties into Tennessee river on the southwest side.
After the date of the contract, a new road from
Nashville to Natchez, passing through the Chicka-
saw and Chocktaw country, was cut by the United
States troops, which crossed the Tennessee river
about twelve or fourteen miles above the mouth of
Bear Creek, and about ten miles further from Nash-
ville. During the continuance of the contract, a

140 CASES IN THE SUPREME COURT

1821. cantonment was established on the southwest side
of the river Tennessee, at the crossing point of the
new road, and in the Chickasaw county. At this
cantonment certain rations were issued by the de-
fendant, for which he claimed the contract price of
eighteen and a half cents a ration, as rations issued
in the Chickasaw country. This claim was disal-
lowed by the Treasury Department, and constitutes
the first and second items of an account presented to
the Treasury, and referred to in the first question as
the paper marked C. The remaining item of the
same account, which was disallowed by the Trea-
sury, was for certain rations deposited at Fort De-
posit, for which the defendant claimed, also, the
contract price of eighteen and a half cents a ration,
as rations issued in the Chocktaw country. At the
time the contract was made, Fort Deposit was con-
. .sidered within the Chocktaw boundary ; but at the
treaty afterwards held at Fort Adams, it was disco-
vered, that an old boundary line existed between the
French and the Chocktaws, which was the line
adopted by that treaty, and excluded Fort Deposit
from the Chocktaw country. There is another ac-
count annexed to the record marked D., consisting
of certain claims of the defendant against the United
States, which were presented to and disallowed by
the Treasury Department. Upon these claims it is
unnecessary to say more, than that this Court entire-
ly concurs in the opinion of the Treasury Depart-
ment.

STSSS* The first <luestion> then> m» whethef the defendant
is entitled to any or all of the items disallowed by

OF THE UNITED STATES, 141

the Treasury Department in the account C. It is 1*21.
contended on behalf of the United States, that the
two first items for rations issued and deposited at the
cantonment on the new road on Bear Creek, were
within that part of the contract providing for rations
issued " at any place on the road between Nashville
and Bear Creek," for which the defendant was en-
titled to the contract price of fourteen cents only ;
and that this sum had been allowed therefor at the
Treasury. On the other hand, the defendant's coun-
sel pretends, as has been already stated, that this
cantonment was within the Chickasaw country, and
that the phrase, " Bear Creek on the Tennessee,"
in the contract, means the mouth of Bear Creek, on
the Tennessee; so that the defendant is entitled to.
the contract price of eighteen and a half cents.

We are, however, of opinion, on this point, that
the contract must necessarily be presumed to refer
to the actual state of things at the time of its incep-
tion, inasmuch as there is nothing in it which shows
that the parties had in contemplation any prospec-
tive changes. The phrase, " Bear Creek, on the
Tennessee," seems to be an unusual description of
the junction of a creek with a river ; but in its con-
nection with the context, we are unable to give it
any other rational interpretation. And if this were
even doubtful, we are of opinion, that the road be-
tween Nashville and Bear Creek, spoken of in the
contract, is the road then in existence and use be-
tween those places, and cannot, in the absence of
all evidence of intention, be construed to mean a new
road not then laid out or made, nor shown to be in

142 CASES IN THE SUPREME H20URT.

itsi. the contemplation of the parties. The rations then
issued and deposited at the cantonment on the new
road, were not provided for in the contract at a spe-
cific price ; not at the price of fourteen cents, for
they were not issued at any place on the old road
between Nashville and Bear Creek, described in the
contract ; and not the price of eighteen and a half
cents, for it was not sufficient that the cantonment
should be in the Chickasaw and Chocktaw country,
but it must also be on the road between Bear Creek
and Natchez existing at the time of the contract*
The case, then, falls precisely within that clause of
the articles of agreement, that provides, that the
price of rations delivered at any other places not
specified, shall be thereafter agreed on betwixt the
public and the contractor ; and this is the construe*
tion originally adopted by the Government itself.

The same reasons which lead us to this conclu-
sion, constrain us to adopt the construction, that the
parties, in their contract, in referring to the Chicka-
saw and Chocktaw country, intended not a dispu-
ted, imaginary, or rightful boundary afterwards to
be settled ; but the actual reputed boundary of that
country. If, then, Fort Deposit was within the re-
puted boundary at the time of the contract, the line
as afterwards settled by the treaty at Fort Adams,
though the true line, has nothing to do with the
case ; and the rations deposited at Fort Deposit are
to be paid for at the contract price of eighteen and a
half cents a ration.

The second and third questions propounded by
the Circuit Court, may be shortly answered. If

OF THE UNITED STATES. 143

there be no specific price agreed upon in the con- isti.
tract for rations issued at any place, the contract ,!fPv^^/

J r U. States

leaves the price to be adjusted by the Government v.
and the contractor. It is to be the joint act of both M

* Manner m

parties, and not the exclusive act of either. If they ofhrati^,&
cannot agree, then a reasonable compensation is to ajLcifedcS3£
be allowed ; and that reasonable compensation is to bT«tUeV8 *
be proved by competent evidence, and settled by a
jury, as in common cases ; and the defendant upon
such a trial, is at liberty to show, that the sum al-
lowed him by the Secretary of War is not a rea-
sonable compensation.

The fourth question is, whether the defendant can ifefodaiitM-

titled, under the

be permitted to claim a credit for the sums due him, JjJJg* to »"?
under the contract, in this suit. The answer may S^v u£&
materially depend upon the true construction of the whX^
act of Congress of the third day of March, 1797, T™t ofMd£
c 74. providing for the more effectual settlement of
accounts between the United States and public re-
ceivers. The third section of that act provides, that
upon suits instituted against any person indebted to
the United States, judgment shall be rendered at the
return term, unless the defendant shall, in open
Court) make oath or affirmation, that he is equitably
entitled to credits which had been previous to the
commencement of the suit submitted to the consi-
deration of the accounting officers of the Treasury,
and rejected, &c. The fourth section then provides,
that in suits between the United States and indivi-
duals, no claim for a credit shall be admitted upon
trial, but such as shall appear to have been presented
tp the accounting officers of the Treasury for their

144 CASES Itt THE SUPREME COtJRT

18«. examination, and by them disallowed in whole or in
part, unless it shall be proved to the satisfaction of
the Court, that the defendant is at the time of the
trial in possession of vouchers not before in his
power to procure, and that he was prevented from
exhibiting a claim far such credit at the Treasury
by absence from the United States, or some una-
voidable accident. The terms of these sections are
very broad and comprehensive. The third section
manifestly supposes, that not merely legal but equit-
able credits ought to be allowed to debtors of the
United States by the proper officers of the Treasury ;
and the fourth section prohibits no claims for any
credits, which have been disallowed at the Treasury,
from being given in evidence by the defendant at the
trial. There being no limitation as to the nature
and origin of the claim for a credit which may be
set up in the suit, we think it a reasonable construc-
tion of the act, that it intended to allow the defend-
ant the full benefit at the trial of any credit, whether
arising out of the particular transaction for which
he was sued, or out of any distinct and independent
transaction, which would constitute a legal or equit-
able set-off, in whole or in part, of the debt sued for
by the United States. The object of the act seems
to be to liquidate and adjust all accounts totween
the parties, and to require a judgment for such sum
only, as the defendant in equity and justice should
be proved to owe to the United States. If this be
the true construction of the act, which we do not
doubt, the defendant might well claim a credit in
this suit for the sums due him, even if they had

WOkins.

OP THE UNITED STATES, 145

grown out of distinct and independent transactions, mi.
for he is legally, as well as equitably, entitled to ^f^£
them. But even if this construction of the act were _ v.
doubtful, upon the facts of this particular case, as
far as we can gather them, we should have proba-
bly come to the same result.

This suit seems to have been brought by the Uni-
ted States for the money price of certain provisions
received by the defendant under the articles of agree-
ment. The real object of the suit is, therefore, to
procure an account and settlement of that claim. It
forms an item in the general account between the
parties, like every other advance made by the Go-
vernment to the defendant ; and, independent of any
statute provision, the defendant would have a right
to show, that he had accounted for the value of such
advance by delivering the equivalent provisions for
which it was originally made. In this view, also,
the fourth question might be answered in the affirm-
ative.

The opinion of the Court will be certified accord-
ingly to the Circuit Court of Kentucky :

1. That under the contract marked B., the defend-
ant is not entitled to the sums disallowed in the
paper D., nor to the sums specifically charged in t)ie
first and second items of the paper C, which were
disallowed by the Treasury officers ; but is entitled
to the sum charged in the third item of the paper C,
which was disallowed by the same officers, if Fort
Deposit was within the reputed boundary of the
Chocktaw country.

Vot. VI. 19

146 CASES IN THE SUPREME COURT

ip*i< 2. That the defendant is not entitled to the first

and second items in the paper C, on the ground,
that the place at which the rations were delivered is
not specially provided for in the contract ; but that
he has a right to show, that the sum allowed by the
Secretary of War for those rations, is not a reasona-
ble compensation.

3. That upon such proof the defendant is entitled
to a reasonable compensation for those rations, to be
ascertained by the jury.

4. That the defendant ought to be permitted to
claim a credit for the above sums due him in this
suit.

Certificate accordingly.

(Practice.)

Young v. Bryan et di

The Circuit Court has jurisdiction of a suit brought by the endorsee
of a promissory note, who is a citizen of one State, against the en-
dorser, who is a citizen of a different State, whether a suit could be
brought in that Court by the endorsee, against the maker, or not.

No protest of a promissory note, or inland bill of exchange, is neces>
sary.

Error to the Circuit Court 6f Tennessee.

This was an action of assumpsit, brought in the
Court below, by the defendants in error, citizens of
Pennsylvania, against the plaintiff in error, a citizen

OP THE UNITED STATES. 147

of Tennessee, as the endorser of a promissory note 2121.
drawn by another citizen of Tennessee, and endor-
sed to the plaintiffs. The only questions in the cause
were,

(1.) Whether the Court below had jurisdiction ;
and, (2.) whether notice of protest was necessary to
charge the endorser in this case. Judgment having
been rendered against the defendant below, the
cause was brought by writ of error to this Court.

Mr. Eaton, for the plaintiff in error, (1.) argued, WnwfW
that under the 11th section of the judiciary act of
1789, c. 20, the Court below had not jurisdiction.
The decision of this Court, in the cases of Monta-
let v. Murray f and Turner v. the Bank of North
America f shows, that where jurisdiction does not at-
tach between the drawer and drawee, assignment
cannot give jurisdiction. The endorser can only
transfer by the assignment, the rights and interest he
possesses ; as he had no right (he and the drawer
being citizens of the same State) to sue in the Federal
Court, he could not consequently create any such
right by the assignment It would amount to a creation
of jurisdiction by consent, which the law does not war-
rant The case of Slacum v. Pomeryf went off on
the ground of the want of notice. At any rate, that
was a foreign bill, and perhaps within the operation
of the 1 1th section of the judiciary act : it is,
then, not authority in this case. In the lan-
guage of the 11th section of the judiciary act,

• 4 Cranck, 46. ft 4 DalL II. c 0 Cranch, 2*1.

148 CASES IN THE SUPREME COURT

im. this is a "suit to recover the contents of a pro-
v^/*w missory note in favour of an assignee," &c. The
YT* declaration contains but a single count, founded
Brytn* upon the assignment, non-payment, and consequent
liability of the plaintiff in error. There is no count
for money had and received ; there is but a single
count, and that is to recover the contents of the note,
a chose in action, which is against the express pro-
vision of the act. There is no distinct, substantive
contract, between the endorser and holder of the
note ; and, if there were any, it is not declared on.
(2.) No notice of protest was given. This was
necessary to charge the endorser :a and the declara-
tion should contain an averment of notice of protest.*

Mr. Sergeant, contra, (1.) admitted, that where
by the judiciary act, jurisdiction does not attach be-
tween the drawer and the payee of a note, assign-
ment cannot give jurisdiction. Such, and no more,
is the amount of the decisions referred to. If the
payee of the note could not maintain a suit in the
Federal Courts against the drawer, neither can the
endorsee maintain a suit in the Federal Courts against
the drawer. But the jurisdiction of the Federal
Courts extends to the case of a suit brought by the
endorsee against the endorser, being citizens of diffe-
rent States, whether a suit could have been there
brought against the drawers or not. By the words
of the act, a general jurisdiction is given, in terms,'

a French's Ezrz. v. The Bank of Columbia, 4 Crunch, 141.
Donaldson r. Means, 4 DaU. 109.
b Slapum v. Pomery, 6 Craneh, 221.

OF THE UNITED STATES. t49

embracing all cases where citizens of different States ia«.
are parties. Being in conformity with the provisions
of the Constitution, and intended to secure to the
suitor an impartial tribunal, it ought to be liberally
construed. Out of this general grant, there is a par-
ticular exception, which ought not to be extended
beyond its natural construction, but rather to be
strictly taken, being against constitutional right;
and if there be doubt, that interpretation should be
given which is most favourable to the jurisdiction.
The words are, (' Nor shall any District, or Circuit
Court, have cognizance of any suit to recover the
contents of any promissory note, or other chose in
action, in favour of an assignee, unless a suit might
have been prosecuted in such Court to recover the
said contents, if no assignment had been made, ex-
cept in case of foreign bills of exchange." These
words necessarily import a recovery by an assignee,
claiming through the medium of an assignment, of
the same contents which might have been recovered
by the assignor, if he had not assigned. They apply
only to a derivative claim. If the payee should
make a special endorsement to a citizen of the same
State, and such endorsee should endorse the note to
a citizen of a different State, the latter, perhaps,
could not sue the first endorsee in the Federal Court,
because he would be obliged to claim under the as-
signment, and in right of the assignor. But if the
payee endorse the note to a citizen of a different
State, there is a new contract entered into between
the endorser and the endorsee, by the endorsement,
and the endorsee would claim upon the footing of

]50 CASES IN THE SUPREME COURT

1821. that contract, without regard to the original engage-
ment, except for the fact, (upon which the liability
of the endorsee arises,) that the note has been dis-
honoured. The contract is so entirely independent,
that the endorsee would be liable though the note
were forged, or the drawer fictitious. The assign-
ment, it is true, is the evidence of the contract, and,
in a certain sense, the foundation of his claim ; but
he does not claim through it, nor under it, nor does
he claim at all as assignee. In the case of a note
payable to bearer, and transferrable by delivery, it is
believed there could be no doubt of the jurisdiction,
in favour of a bona fide holder, being a citizen of a
different State from the drawer, through whatever
hands it might have passed in its course to him. He
would claim in his own right, and not by assign-
ment In the case of a general endorsement, also
transferrable by delivery, and conferring upon the
bona fide holder an original right of suit against the
endorser, the Court would have jurisdiction of a suit
against the endorser, for the same reason. And in
case of a special endorsement to *a citizen of a diffe-
rent State, the argument, if possible, is still stronger.
Neither of these is within the words of the act. The
plain intention of the provision is effectuated by the
construction contended for on the part of the defend-
ants in error. The design of the exception was
either to prevent colourable transfers for the purpose
of giving jurisdiction, or to enable the party to a
negociable contract, to secure to himself the juris-
diction of the State Courts. The interpretation
contended for, does not interfere with these views.

OF THE UNITED STATES. 151

It is in the power of the endorser to fix the jurisdic- mi.
tion, by making a special endorsement, as it is in the

Young

Bryan.

power of the drawer to escape the Federal jurisdic* y.
tion by making the note payable to a citizen of the
same State* But as it must be admitted, that where
the note is payable to a citizen of a different State,
or being payable to bearer, comes into the hands of
a citizen of a different State, the drawer may be-
come subject to Federal jurisdiction, it would seem
to follow, conclusively, that the endorser (omitting
to guard himself and thereby voluntarily waiving the
right) would also be liable. It may be remarked, in
the particular case under consideration, that the note
appears, from the evidence, to have been drawn, and,
probably, endorsed for the very purpose of being
delivered to the plaintiffs below, who wejre, and
were known to be, citizens of Pennsylvania.
(2.) It appears fully in evidence, that notice of
non-payment by the drawer, was in due time given
to the endorser. This is all that was necessary to
be done, no protest being required of a note or in-
land bill of exchange. Slacum v. Pomeryf was the
case of a foreign bill.

Mr. Chief Justice Marshall delivered the opi-
nion of the Court, that a suit may be brought in the
Circuit Court by the endorsee against the endorser,
whether a suit could be there brought against tha
drawer or not. In such a case, the endorser does
not claim through an assignment. It is a new con-

a QCranch3 221,

152 OASES IN THE SUPREME COURT

1821. tract entered into by the endorser and endorsee, upon
.^p^JJ^ which the suit is brought ; and if the endorsee is a
Corrunes. citizen of a different State, he may bring an action
against the endorser in the Circuit Court. As to the
other objection insisted upon by the plaintiff in error,
all that was incumbent upon the holder, was to give
due notice to the endorser. No protest of a promis-
sory note or inland bill of exchange is necessary.

*w Judgment affirmed.

(Prize.)

The Bello Corrunes. The Spanish Consul,
Claimant.

A foreign consul has a right to claim, or institute a proceeding, ui
rem, where the rights of property of his fellow -citizens are in ques-
tion, without a special procuration from those for whose benefit he
acts.

But a consul cannot receive actual restitution of the res in contro-
versy, without a special authority from the particular individuals
who are entitled.

A capture made by citizens of the United States of property be-
longing to subjects of a country in amity with the U. S. is unlawful,
wheresoever the capturing vessel may have been equipped, or by
whomsoever commissioned ; and tbe property thus captured, if
brought within the neutral limits of this country, will be restored to
the original owners.

Whatever difficulty there may be, under our municipal institutions,
in punishing as pirates, citizens of the U. S. who take from a State
at war with Spain, a commission to cruise against that power, con*

OP THE UNITED STATES. 163

trary to the 14th article of .the Spanish treaty, yet there is no doubt 1321 „
that such acts are to be considered as piratical acts for all civil pur- v^v-w'
poses, and the offending parties cannot appear, and claim in our The Bello
Courts the property thus taken. Conunes.

ItteeiMy that the terms, " * State with which the said King shall be at
uwr," in the 14th article of the treaty, include the South American
provinces which have revolted against Spain.

But, however this may be, the Neutrality Act of June, 1797, c. i. ex-
tends the same prohibition, with all its consequences, to a colony
revolting, and making war against its parent country.

In the ease of such an illegal capture, the property of the lawful own-
ers cannot be forfeited, for a violation of the revenue laws of this
country, by the captors or by persons who have rescued the pro-
perty from their possession.

The rights of salvage may be forfeited by spoliation, smuggling, or
other gross misconduct of the salvors.

Apfeal from the Circuit Court of Rhode Island.

This was the case of a Spanish vessel and cargo,
stranded on Block Island, and there seized by the
officers of the customs. An information on behalf
of the United States, was filed in the District Court,
against the property, as forfeited, for an alleged
breach of the revenue laws. His Catholic Majesty's
Vice Consul for the district of Rhode Island, inter-
posed a claim on behalf of '' certain subjects of the
King of Spain," the original omiers of the ship and
cargo, which was bound on a voyage from the port
of Tarragona, in Spain, to La Vera Cruz, and was
taken off Cape St. Antonio, on the west end of the "
island of Cuba, on the 21st of March, 1818, by an
armed vessel called the Puyerredon, commanded by
one James Barnes, sailing under Buenos Ayres co-
lours, and asserting a right to make captures under
the authority of the government of that place* Res-
titution to the original Spanish owners was claimed,

Vol. VI. 20

164 CASES IN THE SUPREME COURT

1821. upon the ground that the capturing vessel had been
^^Jj^ equipped in the ports of this country, in violation of
Conunea. our neutrality. An allegation was also filed by
Barnes, demanding restitution of the property to the
captors, as having been taken, jure belli, on the high
seas. Another claim was also filed by certain per-
sons, part of the original crew of the Bello Corrunes,
left on board after the capture, who asserted a claim
for salvage, in case the property should be restored
to the original Spanish owners, under the following
circumstances. The master of the captured vessel,
and all her crew except four, were taken out, and a
prize master and crew put on board from the Puyer-
redpn. Thus equipped, the Bello Corrunes cruised
in company with the Puyerredon nearly two months,
during which period another Spaniard, of the ori-
ginal crew of the Bello Corrunes, was returned to
that vessel. The two vessels afterwards separated,
and on the 8th of May, in lat. 32° 30' north, and
longitude 74° W. from London, the prize crew, as-
sisted by the persons originally on board the Bello
Corrunes, rose on the prize master and other officers,
and rescued the vfsstl from their possession. They
then steered their course for the United States, and
the vessel was by some means stranded upon Block
' Island, where the vessel and cargo were seized by
the revenue officers.

A decree was entered in the District Court, pro
forma, and by consent of parties, restoring the pro-
perty to the original Spanish owners as claimed, and
dismissing the other allegations and claims. This
decree was affirmed, pro forma, and by consent, in

OF THE UNITED STATES. 165

the Circuit Court, and the cause was brought by ap- issi.
peal to this Court. !^Q£

It appeared by the evidence in the Courts below, Commes.
and by the farther proof taken under a commission
from this- Court, that the capturing vessel was for-
merly owned by citizens of the United States, and
called the Mangoree, and was originally armed,
lequjpped, and manned at Baltimore ; and sailed
from that port in March, 1817, under the command
of Barnes, a citizen of the United States, domiciled
in that city, under Buenos Ayres colours, on a cruize.;
and after capturing several Spanish vessels, pro-
ceeded to Buenos Ayres, where the vessel arrived in
August, 1817/ The vessel was then altered from a
schooner into a brig, and her name changed to the
Puyerredon, an addition of one gun was made to
her armament, some of the original crew were re-
shipped, and other seamen recruited* An alleged
sale of the vessel took place to one Higginbotham, a
citizen of the United States domiciled at Buenos »

Ayres ; and a commission was issued by the Su-
preme Director of the United Provinces of South
America, dated the 20th of November, 1817, au-
thorizing Barnes to capture Spanish property ; with
which the vessel sailed from Buenos Ayres on the
cruise, during which the present capture was made.

The Attorney- General, for the United States, ar- February m.
gued, that the officers of the Government being in

a This was the same vessel which captured the Droina Pat-
tera, id 1816. Fide ante, Vol. IV. p. 62.

166 CASES IN THE SUPREME COORT

1821. possession of this property, would hold it as a droit
£££^ until some person appeared duly authorized to claim
Corrunea. it The consul of Spain has no authority to claim,
in his own name, and in his official character, the
property of persons to him unknown, and by whom
he cannot therefore have been invested with a spe-
cial procuration. He is not invested with a general
authority for that purpose, virlute officii, nor is there
evidence in this particular case that the consul is the
agent, consignee, or correspondent of the owners,
who are sometimes permitted to claim for their
principal, when the latter is absent from the coun-
try.0 Great public inconveniences and mischief,

a The Anne, 3 Wheat. Rep. 435. De Steck, des Consuls, 64.
Warden on Consuls, 116 and opinion of M. Poktalis there
cited. This opinion of M. Portalis, in the case of the claim
of the Danish Consul before the French Council of Pri-
zes, will be found in the Appendix to the present volume of
Reports, Note No. V.
9 The passage cited from De Steck, is as follows :

•* § 27. Selon la regie par la pi d part destraitls de commerce
et par l'usage presque genlralement recu les consuls sont les
juges des gens de mer et des nlgocians et marchands de leur
nation.*

28. II leur est ordinairement attribute la jurisdiction tant
en matiere civile que criminelle.

29. Cette jurisdiction attribute aux consuls n'ltnane point de
la puissance et de l'autorit£ du souverain, qui les Itablit, qui
n'a point de pouvoir sur ses sojets expatrils, dlmeurans, com-
mergans, Itablis en des pays strangers. Elle depend et derive
plut6t de la concession, de l'attribution du souverain de V4Ukt
ou les consuls resident. Elle suppose done toujours des traitea
par lesquels elle est stipule, accordle, attribute.

w Vatin. Com. Sur rOrdorm.de la Marine, 1 1. tU. 9. art. 12. p. 261.

OP THE UNITED STATES. 157

might follow from allowing foreign consuls, not spe- 1821.
dally authorized by their own government, or by ^T^C^
this, nor by the parties, to receive restitution of pro- Conuoes.
perty, for which they may interpose a claim as be-
longing to their fellow subjects. Supposing the
property bere to be devested out of the original own-
ers by the capture, and vested in the captors, jure
belli, it must be forfeited to the United States for
violating the revenue laws, which, was the original
intention of the parties, and was partially accom-
plished at Block Island. Or supposing the recap-
ture by the prize crew to be valid, they mu3t be

SO. Lorsque la jurisdiction eat attribute aux consuls par lea
traites de commerce, ils ont le pouvoir dans leur district, dans
1'endroit de leur eHablissement et dans leur residence, de juger
les differ en s, .contestations et proces qui surviennent entre lea
gens de raer, les negocians, les commer§ans de leur nation, qui
s'llevent entre les capitaines, patrons, 1' equipage, et les pas-
sagers des vaisseaux et des batimens nationaux. *

. 31. Leur jurisdiction ne se borne pas alors aux affaires con-
tentienses des. nationaux. Ils ont aussi la jurisdiction volon- "

taire, c'est a dire la faculty de recevoir les declarations des
capitaines des vaisseaux, et tous les actes que leur nationaux
veulent passer dans' leur chancellerie, de les legaliser, de re-
cevoir leur testamens, de regler leurs successions et leur tu-
telles, de faire I'inventaire de leur biens delaisses et nau-
frag^s, etc.

32. Dans les proces que surviennent entre les nationaux et
les habitans et sujets de Felat ou les consuls sont Itablis, on
entre les commercans d'autres nations, ils assistent, protegent,
defendent leurs nationaux. Dans les echelles du Levant les
jugee du lieu n'osent dans ce cas proclder sans la participation
et Intervention du consul, sans la presence des on interprete."
De Steck des Consuls, p. 64.

J 58 CASES IN THE SUPREME COURT

1821. considered as the agents of the original proprietors,
and their misconduct must be visited upon the ori-

TheBello

Corrnnes. ginal proprietors.

Mr. Winder y for the appellants and captors, insist-
ed, that the present capture being made on the high
seas, jure belli, under a commission regularly issued
by a Government acknowledged to be entitled to ex-
ercise the rights of war against its enemy, could not
be inquired into by the Courts of this country ; but
that the captors being entitled to the possession,
having only been dispossessed by the criminal mis-
conduct of the prize crew which they had put on
board to secure the prize, were entitled to restitution,
in order to enable them to proceed against it as prize
in the competent Court. Whatever military means
are directed, from within the territory of one of the
belligerent States, against its enemy, are not subject
to the review or control of any neutral or other fo-
reign tribunal or authority, except in the single case
of a direct violation of the neutral territory itself.
This principle grows out of the perfect independence
and equality of nations, existing as it were in a state
of nature in respect to each other. Their conduct
in authorizing acts of war is no more reviewable by
other nations, than any other their acts of sovereign-
ty.- It is this perfect independence and equality of
sovereign States which is the sole foundation of the
exclusive jurisdiction of the Prize Courts of the
captor's country over every thing done under a prize

a Vattel, Droit des Gens, Prelim, s. 16—23. /. 2. c. 4. $. 64,
55.

OF THE UNITED STATES 159

commission." In the celebrated case of the Ex- mi.
change? this Court held, that the commission of a ^T^^

^ / > The BeUo

sovereign protected that vessel from all inquiry, not- Comutes.
withstanding the flagrantly unjust conduct of the
French Emperor in appropriating the property of an
American citizen to his own use, without the form of
a trial, and incorporating it into his military marine.
It must be shown, that the act of the Government of
Buenos Ayres in granting this commission is unlaw-
ful, before it can be shown that any of the effects of
that act are invalid. Suppose the Exchange, on her
voyage, had made a capture, could this Court have
restored it to the former owners ? Or could it in-
quire into the validity of such a capture consistently
with the principles laid down in that case P The
enlistment of men in neutral countries to serve the
belligerent powers is lawful, unless there be some ex-
press prohibition of the neutral State. Such a mu-
nicipal prohibition would certainly make it unlawful,
in respect to the neutral State whose laws are viola-
ted ; but it does not, therefore, follow, that all the
acts of such persons in war would be unlawful, or
that they are not entitled to the rights of lawful
war.c The carrying of contraband is prohibited by
the law of nations under the penalty of confiscation,
and the exportation of contraband articles may be
prohibited by the municipal code under other penal-
ties ; but such prohibition would not invalidate a

a L'Invincible, 1 Wheat Rep. 238. 254.
b 7 Cranck, 116.

c Vattel, 1.3. c. 2. s. 13—15. Bynk. Q. /. Pub. pp. 175.
177. of Da Ponceau's translation.

1^0 CASES IN THE SUPREME COURT

i82i. capture made with the munitions of war thus eX-'
^^0 ported. The Government of this country naturalizes
CorruDea* all foreigners indiscriminately, in peace and in war,
and employs them in its land and naval service ; and
it is not for us to question the right of a citizen of
the United States to enter into the military service
of a foreign State. It is insisted, that not only the
Court has no authority by the law of nations to re-
store to the original owners a prize thus captured,
but that the law of nations gives the Congress no
power to authorize the Court to restore. The Le~
gislature may prohibit our citizens from enlisting in
the service of the belligerents, or from fitting out
ships to be employed in cruising, under ever so se-
vere penalties ; but those penalties cannot extend to
a forfeiture of the rights of prize acquired under the
commission of an independent sovereign State. Nor
are Spain and the United States competent to regu-
late by their mutual treaty stipulations the sovereign
rights of the South American Provinces, though
they may stipulate to inflict penalties in personam,
for what they deem the criminal conduct of their
subjects or citizens. As to the claim of the United
States for a forfeiture on account of the alleged vio-
lation of the revenue laws, it is already settled by
this Court, that the property of foreigners cannot be
forfeited for the misconduct of those who are tor-
tiously in possession, as was the case here with the
rescuers/

a The Josefa Segunda, 5 Wheat. Rep. 338.

OF THE UNITED STATES. 16J

Mr, Webster and Mr. Wkeaton, for the respondent 1821.
and claimant, the Spanish Consul, (1.) contended, ^XTjf
that the Consul, from the necessity of the case, had Corrunes.
a right to interpose a claim for the property of his
fellow subjects, brought into our ports in this man-
ner. He does not claim as attorney in fact, but his
character is more like an attorney at law. There is
no necessity of a special procuration from those for
whom he claims, because it does not follow, that the
property will be actually delivered into his hands
until the respective rights of the owners are deter*
mined, and a special authority produced from them
to receive distribution. There is the more necessity
for permitting the Consul, as the official protector of
the commercial rights and interests of his fellow sub-
jects in a foreign country, to interpose a claim in
a case of this nature, because the usual term of a
year and a day allowed in prize causes, where there
is no claim, would not be allowed here, since the
property is demanded by the captors under their pre-
tended commission, and if the subjects of Spain, re-
siding at a distance, and ignorant even of the fact of
the capture, were not allowed to be represented by
their Consul, the property would be taken away by
the captors, and irrecoverably lost to the original
owners. It will also frequently be impossible for
the Consul to specify the owners for whom he claims,
and he ought, therefore, to be allowed to file allega-
tions claiming it for Spanish subjects generally.
The opinion of M. Portalis in the case of the
Danish Consul,* proceeds entirely upon the peculiar

a Vide Appendix, Note No. V.
Vol. VI. «I

|62 CASES IN THE SUPREME COURT

i82i. regulation of France, which makes the Proctirtur
.J^bX General, the official attorney of all persona who are
, Corrunes. not represented before the tribunals by any special
procuration ; which would, of course, render unne-
cessary the interposition of foreign Consuls in cases
where the rights of their countrymen were involved.
2. They argued, that the vessel by whirh the pre-
sent capture was made, having been fitted out in the
ports of the United States, and the capture having
been made by our citizens, in violation of the law
of nations, the acts of Congress, and the treaty with
Spain, the property must be restored to the original
owners, according to the uniform .decisions of this
Court/ Uuder our municipal constitution, the
treaty is the supreme law of the land ; and it would
be so by the law of nations without that constitu-
tional provision. " Every treaty," says Sir W. Scott,
" is a part of the private law of the couotry which
has entered into that treaty, and is as bindiug on the
subjects as any part of their municipal laws."* The
9th article of the Spanish treaty declares, that
goods taken/row pirates shall be restored to the law-
ful owners ; and the 14th article declares the captors,
in the present case, to be pirates, as it provides, that
they shall be punished as such for taking a commis-
sion to cruise against Spain. And yet we are in-
quiring whether they are entitled to have restitution

a The Alerta, 9 Cranch, 359. Talbot ▼. Jansen, 3 Doll,
133. L' Invincible, I WhtaU Rep. 238. The Divina Pastors,
4 Wheat. Rep. 52. Note to that case, p. 02. Sir L. Jenkins'
works, there cited. The Estrella, 4 Wheat. Rep. 298.

b The Eenroom, 2 Rob. 6.

OP THE UNITED STATE8. 169

of die very property which they have thus piratical- 1821.
ly taken. It may be admitted, that in some cases ^^Cjjl
citizens of one country may lawfully engage in the cornwes.
wars of another ; we may take the doctrine cited
from Bynkershoeck, that they may enlist where
there is no prohibition. It may also safely be ad*
mitted, that as for as the other belligerents are con-
. eerned in their hostile relations with each other, it is
lawful war. Spain cannot justly complain of the
South American Provinces for employing foreigners
in their service. And if the capturing ship were a
national vessel, like the Exchange,* no doubt her
commission would estop all judicial inquiry into her
conduct. But this is a private claim. The original
Spanish owners claim nothing against the Govern-
ment of Buenos Ayres. That Government claims
nothing of the Spanish owners. Our own citizens
assert a claim to this property acquired in war, which
can only be maintained upon the supposition, that
they may be at war whilst their country is at peace ;
that they are not bound by the laws and treaties of
their own country ; that they may expatriate them-
selves, flagrante bello, for the purpose of committing
hostilities against nations in amity with the United
States. If the doctrine contended for on the part of
the captors, that the commission is conclusive, be cor-
rect, then the Court can never look behind it, and
the belligerents may dispense with our laws, and the
allegiance of our citizens, at their pleasure. The
case of Talbot v. Jansanf whatever may be thought

a 7 Cranch, 116. 6 3 Doll. 133.

164 CASES IN THE SUPREME COURT

1821. of it in other respects, has never been overruled as
^^JJ^ to the principle, that the neutral tribunals have a
Corraoes. right to inquire into the validity of a captor's com-
mission, to see whether it was obtained and used in
violation of the laws of the neutral country. That
case has been made the basis of a series of decisions,
which have become the settled law of this Court,
and which it is now too late to question. The
Court has uniformly treated it as a necessary conse-
quence of the personal illegality of the act of taking
the commission that the property captured under it
should be restored to the lawful owner. It is, there-
fore, immaterial where, or by whom, the capturing
vessel was equipped. It is sufficient, that the cap-
turing persons are citizens of the United States, and
cannot assert a right of property founded on their
own illegal conduct.

3. But even admitting that the original capture
was legal, the prize cannot now be reclaimed by the
captors. An interest acquired in war by possession,
is lost with the possession. The rights of capture
are completely devested by recapture, escape, or
rescue.- Here the property has been devested out
of the possession of the captors by the rescuers, for
the benefit of the original owners, and the rescuers
hold it in trust for their benefit.

Mr. Wheaton, for the salvors, stated, that the ori-

a The Astrea, 1 Wheat. Rep 125. The Invincible, 2 Gallis,
35. Hudson v . Guestier, 4 Cranch, 293. S. C. 6 Cranch, 281.
The Dijjgeuua, 1 Dodson, 404.

OF THE UNITED STATES. 166

gittft] owners being thus shown to be entitled to res- im.
titution, the next question would be, whether the ^^JJ^
salvors were entitled to any, and what salvage. Corrara.
Unless the property were thus restored to the Spa*
nish owners, the rescuers could not claim any sal-
vage ; for certainly the captors would not admit that
any meritorious service had been rendered them by
the rescue. But, as against the former owners, the
rescuers have a just claim, having saved the property
from the grasp of their enemy : and it would be idle
to send the salvors to the Courts of Spain, to prose-
cute their claim, since the possession of the property
enables this Court to do complete justice between
all the parties.* And this Court has already deter-
mined, that in a case of derelict by one belligerent,
a neutral is entitled to salvage, and the Courts of
the neutral country into which the property is
brought, have authority to award it/ As to the
quantum of salvage : one third was allowed in that
case ; and it was doubted whether more ought not to
have been allowed, if the salvors had appealed. The
case of the Adventure,' which was a donation at sea
by the belligerent captor to a neutral, who brought
the property into a port of his own country, was
held to be a lawful salvage, and a moiety was al-
lowed. In the case of Rowe et al. v. the Brig ,

which was a Spanish vessel captured by a South
American cruiser, one of the learned judges of this

a The Two Friends, 1 Rob. 281.
b The Mary Ford, 3 Dall. 198.
t 8 Granch, 221.

106 CASES IN THE SUPREME COURT

i*2i. Court allowed a moiety of the net value/ And in
^*^7y general, it may be affirmed that there is no inflexible
Cornwca. rule, either in cases of derelict, or of rescue ; a rea-
sonable salvage, proportioned to the meritorious ex-
ertions of the salvors, is to be decreed ; but never
less than a third, unless the property is very valua-
ble, or the services rendered very inconsiderable.6

Mr. Webster j contra, upon the claim for salvage,
insisted, that it appeared by the evidence that there
had been a partial embezzlement of the property by
the alleged salvors, and that it was a fixed rule that
such misconduct, or any circumstance of fraud, for-
feited the rights of salvage/

February 2m. Mr* Justice Johnson delivered the opinion of the
Court.

This vessel was stranded on Block Island, in an
alleged effort to reach a port of the United States.
The vessel and cargo have been seized by the Col-
lector of Newport, for supposed violations of the
trade laws of this country, and an information was
accordingly filed, to subject the whole to condemna-
tion, in the District Court, for Rhode Island District.
This claim of the United States has been opposed
by three classes of competitors. The vessel and

a 1 Mason'* Rep. 372.

b Abbott on Shipp. 451. Story's Ed. Note (1.) The Favourite,
4 Cranch9 347. The Jonge Bastiaun, 5 Rob. 322. The Lord
Nelson, Edw. 79. L'Esperance, 1 Dodson, 49. The Blenden-
hall, 1 Dodson, 421. Barrels of Flour r« Prior, 1 Gallu. 133.

c The Blaireau, 2 Crancht 240

Or THE UHITED STATES. 167

cargo, it appeals, are Spanish property, and were isai.
captured on the south western coast of Cuba, by the ^T^f
Puyerredon, a private armed brig, bearing the flag Comum.
of the Buenos Ayrean Republic, and commanded by x
Captain James Barnes. Being armed, and well cal-
culated for a privateer, she was manned with a
complement *of the privateer's men, about thirty in
number, and her original commander, and all ex*
cept four of the Spanish crew, removed. Thus equip-
ped, it appears that 6he cruised, as a tender to the
Puyerredon, for about two months, during which
time another Spaniard was added to her crew, and
on the 8th May, when in lat 32 30, N. and long.
74, from London, the crew rose upon the officers,
subdued them, put them on board the first vessel
they met with, and steered their course for this con-
tinent

Thus circumstanced, Capt. Barnes has libelled in
behalf of the captors, the Spanish Vice Consul in
behalf of the original Spanish owners, and the crew
of the Bello Corrunes have libelled for a compensa-
tion by way of salvage, to which they suppose them-
selves entitled, in the event of restitution being de-
creed to the original owners.

To these several claims it is objected on behalf of
the United States, that restitution cannot be decreed
to the Spanish Vice Consul, because he is not in that
capacity a competent party in Court to assert the
rights of individual subjects ; nor, in favour of the
captors, because the privateer was originally fitted
out in the United States, and is still owned by Ame-
rican citizens ; nor, in favour of the salvors, because

168

CASES IN THE SUPREME COURT

1821,

The Bi-JJo

Corrunes.

A Fort ;': ii con-
sul hup n rtfrht
tochimorUbM,
in jtwi, whet'e
the right* of
property of bid
fellow pubjecu
,i rr in 4juc^tiont
without any
spvrm] au(lio-
ntj from those
for whoii" bene-
fit be acts.

they have forfeited their claim to salvage by spolia-
tion, and an attempt to smuggle.

As these suggestions open the whole case, it shall
be disposed of by considering them severally in their
order, only remarking en passant, that though they
were all sustained, it would avail the United States
nothing ; since, without evidence sufficient to sus-
tain the criminal charge, it would only follow that
the proceeds of the property libelled, must lie in the
registry of the Court, until a proper claimant shall

jike his appearance.

On the first point made by the Attorney General,
this Court feels no difficulty in deciding, that a Vice
Consul duly recognised by our Government, is a
competent party to assert or defend the rights of
property of the individuals of his nation, in any
Court having jurisdiction of causes affected by the
application of international law. To watch over
the rights and interests of their subjects, wherever the
pursuits of commerce may draw them, or the vicissi-
tudes of human affairs may force them, is the great
object for which Consuls are deputed by their sove-
reigns ; and in a country where laws govern, and
justice is sought for in Courts only, it would be a
mockery to preclude them from the only avenue

i rough which their course lies to the end of their
mission. The long and universal usage of the
Courts of the United States, has sanctioned the ex-
ercise of this right, and it is impossible that any
evil or inconvenience can flow from it. Whether
the powers of the Vice Consul shall in any instance
extend to the right to receive in his national charad-

OF THE UNITED STATES; J£9

ter, the proceeds of property libelled and transfer- 1*21.
red into the registry of a Court, is a question rest- •J^T^T'
ing on other principles. In the absence of specific Cominea.

... . . . But he cannot

powers given him by competent authority, such a receive bcuhu
right would certainly not be recognised. Much, in 0ttl a ?Peci»l
this respect, must ever depend upon the laws of the f^^1**61
country from which, and to which, he is deputed*
And this view of the subject will be found to recon-
cile the difficulties supposed to have been presented
by the authorities quoted on this point. Consider-
ing, then, the original Spanish interest as legally re-
presented, the questions are, whether that interest is
not forfeited to the United States, or superseded by
the superior claims of the capturing vessel.

This is not the ordinary case of a capture made a citi** of
under the taint of an illegal outfit. The decision of cannot' data!

m • a* <■•«• • in their Comto,

this Court must rest upon a very different principle. «°« property of

r J r r foreign nations

In those cases, the national character of the claim- jje j"^ «£
ant is immaterial. He has violated the neutrality of w^wL^iU"
this country, and cannot shelter himself under his r^ViSse?^

• . i • *i • i have been e-

commission, or his allegiance, however unques- quipped, or by
tionable his right, individual or national, would comn»«sione<t
have been otherwise. But can a citizen of this
country, who has violated its laws, ever be recogni-
sed in our Courts as a legal claimant of the fruits of
his own wrong ? We are of opinion he cannot, and
it therefore becomes material to determine what is
the national character of the claimants, under the
capture made by the Puyerredon.

At the time of this vessel's first sailing from Bal-
timore, she was unquestionably American owned
and commanded. During the time of her cruising
Vot. VI. 21

170 CASES IN THE SUPREME COURT

1821. under the name of the Mangoree, it is not pretended
£J^£J£ that she changed owners. The legality of her con-
ComiDes, duct at that period has been defended altogether on
the ground of her taking the flag of Buenos Ayres,
being commissioned in a foreign state, and her com-
mander, Barnes, assuming the character of a citi-
zen of the power that had commissioned him. It is
not until her arrival at Buenos Ayres, in 1817, that
any change of property in the vessel has been set up
in proof. At that time, it is contended, she was set
up at auction, and changed owners, passing into the
hands of a Mr. Higginbotbam, a citizen of the United
States, married and domiciled at Buenos Ayres.

If this fact had been satisfactorily made out in evi-
dence, it would have drawn this Court into the con-
sideration of some questions of great nicety, which
have never yet received a solemn adjudication in this
Court. But the evidence to support this pretended
change of property is so wholly unsatisfactory, that
the7 Court rejects it; for, the' ordinary solemnities of
such transfers are too well known, to admit the be-
lief that in this instance, the change of property,
had it been real, would not have been effected or
commemorated by written documents.

■ This Court, then, proceeds upon the assumption
that the Puyerredon is still, in reality, American
owned, and they are also of opinion, that she must
be held to be American commanded ; since, even if
the doctrine could be admitted,, that a man's alle-
giance may be put off with his coat, it is very clear
that Mr. Barnes9 citizenship is altogether in fraud of
the laws of his own country. His family has never

OF THE UNITED STATES. 171

been removed from Baltimore, and his home has i«2i.
been always either there, or upon the ocean. ^T^CT?

rn. TheBello

The question then is, whether thus circumstan- Conunes.
ced, the claim in behalf of the owners and mariners
of the Puyerredon, can be sustained.

We are decidedly of opinion it cannot.

By the 2d section of the 14th article of the treaty
with Spain, u Citizens, subjects or inhabitants9' of
the United States, are strictly prohibited from ta-
king " any commission or letter of marque, for arm-
ing any ship or vessel, to act as privateers against
the subjects of his Catholic Majesty, or the property
of any of them, from any Prince or State with
which the said King shall be at war." And it is
further provided, " that if any person of either na-
tion shall take such commissions or letters of marque,
he shall be punished as a pirate.9'

Whatever difficulties there may exist under the
free institutions of this country, in giving full effi-
cacy to the provisions of this treaty, by punishing
such aggressions as acts of piracy, it is not to be
questioned that they are prohibited acts, and in-
tended to be stamped with the character of piracy ;
and to permit the persons engaged in the open pro-
secution of such a course of conduct, to appear, and
claim of this Court, the prizes they have seized,
would be to countenance a palpable infraction of a
rule of conduct, declared to be the supreme law of
the land.

Some doubts have been suggested on the use of
the words " State at war" with Spain. This Court
would not readily lean to favour a restricted con-

172 CASES IN THE SUPREME COURT

i82i, struct ion of language, as applied to the provisions of
K^~^Y a treaty* which always combines the characteristics

The Belio '" y . . '

Corronef * of a contact, as well as a law : but it is not neces-
sary to examine the grounds of these doubts, as ap-
plied to the present case ; because this treaty has
been enforced by the provisions of the act of Con-
gress of the 14th June, 1797, so as to leave no
doubt of its extension to the case of cruising
against Spain, under a commission from the new
states formed in her colonies.

Citizens of the United States, therefore, present
themselves to this Court to demand restitution of a
prize which they had made in violation .of the most
solemn stipulations of a treaty, and provisions of a
law of their own country, and of which they have
been dispossessed by their own associates in guilt.
Under such circumstances, this Court cannot hesi-
tate to reject the claim, and adjudge the property to
the original proprietors.
ffliuuaptun! r^Yls v*ew °^ t'ie subject obviates the necessity of
SStMtSSrSr examining the reality and effect of the alleged res-
!h?ero^ri"trof em on behalf of the original owners, with a view

the lawful own- . . r .. . •hi

hi cannot be to tlie question of restitution : but it still becomes

forfeited for 1

breach of im re. necessary, with a view to the question of forfeiture,

vi-nu.: Jaws, by J ' * 7

™Stonwho and tlie raerit of the alleged .salvors. With regard
tuT Pr?(Krty to the former, it is very clear, that supposing the
i-aion'"1 rescue to have been real and compleat, the Spanish
consul ought not to be precluded from his election,
whether to put his claim upon the ground, that the
interest of those whom he represents was never le-
gally devested, or that it was afterwards legally re-
covered • In the one case, there is no ground for

OF THE UNITED STATES. 173

affecting it with the forfeiture, because of the con- 1821.
duct of the crew ; and in the other, some question ^^Jj^
may be made, how far the property was affected by Corrunes.
the illegal acts of those who, at that time, held in
the right of the owners. But even in this latter view
of the state of the property, we are of opinion, that
the forfeiture was not incurred ; since, although it
be supposed, that the property was in custody of
those who held for the Spanish owners, it was not
held by those to whom the Spanish owners had en-
trusted the vessel and cargo. And this is the only
ground upon which the acts of the ship's company
are made to produce forfeitures of the interest of
shippers or ship owners. For, besides the conside-
rations drawn from the great predominance of the
force detached from the privateer, in the effort to
recapture, the few men of her own crew, were gra-
tuitous actors. Their contract with the owners had
ceased, and they assumed the character of voluntary
agents, whose conduct the owners might or might
not adopt, according to their own views or interests..

As to the claims of the salvors, it may be remark- The right <*
ed, that maritime Courts always approach them with SMSEd*!? **

... , r xr • •• misconduct of

great benignity and favour. Yet, in proportion to thewivow.
the inclination to favour where there is merit, is the
indignation with which they view every indication
of a disposition to take advantage of the unfortunate.
Spoliation, and even gross neglect, may forfeit all
the pretensions of salvors to compensation.

In the case before us, it is not too much to pro*
nounce the claim of those of the crew of the Puy-

174 CASES IN THE SUPREME COURT

1821. erredon who libel for salvage, to be not only ground-
^T^C*? less but impudent ; for, besides spoliation , smuggling,
CorniDes. and the grossest irregularities, it is perfectly clear,
from the pilot's evidence, that they run the vessel on
shore purposely ., So, that whatever may have been the
reality of their benevolent designs towards the Spa-
nish owners originally, their subsequent conduct not
only casts a doubt over their candour, but devests
them of all pretensions to compensation.

Nor do the five Spaniards who composed a part
of the crew of the Bello Corrunes, at the time she
was stranded, and who were not of the capturing
crew, escape being involved in the suspicions which
fasten on their associates.

It is a melancholy truth, too well known to this
Court, that the instruments used in the predatory
voyages carried on under the colours of the South
American States, are among the most abandoned
and profligate of men. Under the influence of strong
interests or fears, the mind of man too often yields,
even where the moral sense still exerts its influence ;
but hold out to one of these practised adventurers in
a course of plunder, the hope of gain on the one
hand, and the fear of imprisonment for piracy on the
other, and what are the chances for truth !

That these men were selected from the Spanish
crew to associate with those of the capturing vessel,
is a circumstance not very favourable to their cha-
racters and conduct, and it would require some strong
evidence of their innocence to remove from them the
suspicion of a volunta association with the ' ne-
mies of their King. Joining in, or even setting on

OF THE UNITED STATES. 175

foot or promoting the recapture, (facts which rest uni.
wholly on their own veracity,) can prove very little ^C*£^
in their favour, since such mutinies are become every- Comraes.
day occurrences whenever such a crew find them-
selves in possession of a valuable cargo. Nor will
the inference in their favour be very strong from
their resorting to the Consul of their country, since
it was the only course which held out a chance of
gain, or of escape from the imputation both of piracy
and smuggling. There is no evidence to separate
their conduct from a compleat identification with
the rest of the crew, except what is obtained from
their own testimony. Yet it is suggested, that they
may still make their innocence and merits to appear;
and as the parties have signified their consent that
the case may be opened in the Court below as to
this class of salvors, the case will be remanded to
the Circuit Court, for further proceedings, so far as
the claim for salvage is concerned.

*&v

Decree accordingly.

Decree. This cause came on to be heard on
the transcript of the record of the Circuit Court for
the District of Rhode Island, and was argued by
counsel : on consideration whereof, it is ordered
and decreed, that the Decree of the said Circuit
Court in this case be, and the same is hereby affirm-
ed, with costs, against Barnes and others, except so
far as relates to the libel for salvage of Emanuel
Rodriguez, Emanuel Josef, Emanuel Barbaras, An-

1821.

Smith

|76 CASES IN THE SUPREME COURT

tonio Josef, and Josef Isnages, who formed no part
of the crew of the private armed brig Puy erred on ;
and as to so much of the said Decree as relates to
uiin»iwc0 *fr* sa^ libelants Emanuel Rodrigues and others,
Company- ^ is further decreed and ordered, by consent of
parties, by their counsel, that the Decree of the said
Circuit Court be, and the same is hereby reversed
and annulled. And it is further ordered, that the
said cause be remanded to the said Circuit Court for
farther inquiry. And that the proceeds of the said
Beilo Corrunes and cargo lie in the Registry of the
said Circuit Court, to be paid over, under the order
of that Court, to the Spanish owners, as interest
shall be made to appear*

(fNSUJIAJfCE.)

Smith et aL v* Universal Insurance Company.

IV" In ' re, id a policy of insurance, a technical total loss is asserted as
the ground of recovery, Lhc loss must be occasioned by the imme-
diate operation of some of the perils insured against, and it is not
sufficient that the voyage be abandoned for fear of the operation of
the peri).

The insurers do not undertake, that the voyage shall be performed
without delay, or that the perils insured against shall not occur;
they undertake only for losses sustained by those perils ; and if any
peril docs begin to act upon (he subject, yet if it he removed before
any lo^s lakes place, and tlie voyage is not thereby broken up, but
is, or may be, resumed, the insured cannot abandon for a total loss.

Insurance on munitions of war, fa Jen on board a neutral vessel, oo

OP THE UNITED STATES 177

a ttryage from New-York, to and at a port or ports, plaoe or i$gi.
places, in the Gulph of Mexico, from the Balize to Campeacby, \^-v-x*/
both inclusive, and from either back to New-York, &c. with a me- Smith
morandvmi that the insurers should be free from any loss arising «. y':rerm
from illicit or prohibited trade. Tbe goods insured were prohibited sal Insurance
from being imported into tbe ports of New Spain, in possession of Company,
the Royalists, by the laws of Old Spain, but were permitted to be
introduced into such ports as were in possession of the Insurgents.
The vessel and cargo arrived off a place in possession of tbe patriot
General Mina, and the master made an agreement to sell the cargo
to him, deliverable from time to time, as he should want it, at St
Ander. But before the cargo could be delivered, the vessel was
chased off by Spanish armed ships, and after making several at-
tempts to return, was compelled to proceed to the Balize for re-
pairs ; after which she again approached the coast, but found it still
in possession of the Royalists, General Mina having retired into
the interior* Tbe objects of the voyage being thus defeated, the
vessel returned to New- York with the original cargo on board ;
and the insured then abandoned to the underwriters, jiot having
before had information of the breaking up of the voyage. Held*
that the insured were not entitled to recover as for a total loss of
the voyage.

Error to the Circuit Court of Maryland.

This was an action of covenant on a policy of in-
surance, underwritten by the defendants for the plain-
tiffs, on the 4th of February, 1817, on a voyage at
and from New-York, to and at a port or ports, placet
or places, in the Gulph of Mexico, from the Balize
to Campeachy, both inclusive, and from either back
to New- York, or a port of discharge in the United
States, upon all kinds of lawful goods and merchan-
dises laden, or to be laden, on board the schooner
Ellen Tooker. In another part of the policy, it is
stated to be " on cargo, consisting chiefly of muni-

Vot. VI. 23

178 CASES IN THE SUPREME COURT

1821. tions of war.'7 There is a memorandum also in the

s^Tvf>/ policy, whereby the underwriters are warranted by

v. the assured free from any charge, damage, or loss,

The Univer- ... . c ,

6*1 insurance which may arise in consequence ot a seizure or de-
Company, tention of the property for or on account of any illi-
cit or prohibited trade. The declaration alleges,
that the vessel, with the cargo, proceeded on the
voyage, and asserts as a loss within the contract,
that while on the voyage, the schooner, with her
cargo, was restrained and detained by certain per-
sons acting under the authority of the King of Spaiq,
whereby the goods and merchandises became wholly
lost.

The material facts, as they appeared on the trial*
are these — the Ellen Tooker having on board pro-
perty of the plaintiff of a greater value than the sum
insured, sailed from New- York, on the voyage in-
sured, on the 31st of January, 1817. On the 26th
of February she arrived at the Balize, where the
master left the vessel and went to New-Orleans*
and having obtained information, that Nantla and
Talacuta were in possession of the Independents, to
which places American vessels might proceed, on his
return to the Balize, the schooner proceeded for
Nantla, and arrived off that place on the 23d of
March, and found it in possession of the Royalists*
The schooner then proceeded to Talacuta, and
having arrived off that place, a boat was sent ashore
for information, the crew of which were made pri-
soners. Concluding from this occurrence, that the
place was in possession of the Royalists, the schooner
put to sea, and on the 5th of April fell in with a fleeft

OF THE UNITED STATES. 179

ef six sail under the command of General Mina, i8*i.
with troops on board, bound for the bar of St, An- v-^^*/
der. The master having had communication with ?•
General Mina, and received encouragement from 8ai insurance
him that he would purchase the cargoa the schooner ColDPany'
kept company with the fleet, and arrived off the bar
of St. Ander on the 28th of April, where the
schooner came to anchor in the open sea, the en-
trance being too shoal to permit her to cross the bar.
On the 11th of May, the master left the schooner
and went up the river to Porto La Marina, (where
General Mina had his head quarters,) for the pur-
pose of selling the cargo, which he accordingly did,
deliverable to General Mina, as he should want it,
from time to time, at St. Ander, the whole delivery
to be completed by the first of July. On the 18th
of May, while the master was on shore, a Spanish
frigate and two armed schooners of the Royalists
hove in sight, and the schooner was immediately
gotten under way for the purpose of escaping them,
and after four hours chase effected her escape. The
schooner made several attempts to return, but was
prevented by Spanish ships hovering about the place ;
on the 26th of May, finding the coast clear, she re*
turned to St. Ander, which was still in possession of
the Independents, and the master was taken on
board. The foremast of the schooner being found
to be loose in the step and injured, and the crew be-
ing short of water, the schooner proceeded to the
mouth of the Rio Grande for water and to examine
the foremast ; and there the heel of the foremast be-
ing found to be gone, the schooner proceeded to the

182 CASES IN THE SUPREME COURT

i82h Country which subjects the vessel a ad cargo to con-
^^T^ fiscation, if it is morally certain that it applies to the
v* vessel, and would be enforced.11 So, if the port of

sal insurance destination be shut, by being in possession of an
CompaDj. eneniy^ or by interdiction of trade, it is a just cause
for breaking up the voyage-* There is a great ap-
parent discrepancy in the English authorities as to
11 restraint of princes." But this Court has settled
the import and meaning of the term in the case of
Qlivera v. The Union Insurance Company S But
it may be said that there is no proof that the block-
ade existed, at the time of the abandonment* To
which it js answered, that this principle does not ap-
ply to a technical total loss produced by blockade.
In the case of an embargo or capture, the voyage is
not necessarily broken up; it is merely suspended :
but in that of a blockade, it is entirely defeated, and
the object of the voyage cannot he accomplished.
Though the restraint now under consideration, is
not that of a blockade, yet it is equivalent ; since
the master was prevented by the restraint from en-
tering the port which he had selected, within the li-
mits prescribed by the policy* A reasonable fear of
loss by capture, seizure, &c. is a justifiable cause of
deviation, and consequently protects against all los-
ses arising from deviation. In the case of Schmidt

10 Johns, Rep. 177. Rhinclauder v. Ins. Co. of Penney I v. 4

Crunch, 29.

a Craig v. Unit Ins. Co, G Johns. Rep. 226*

b 1 Johns. Rep. 260, Per Kent, Ch. J, who cites 1 Emtrifr

Dm Assur. 242.

c 3 meat. Rep. 183,

OP THE UNITED STATES. 183

*. United Insurance Company, it is said to be u suf- 1021.
ficient to justify the master's conduct in cases of this
kind, if he have good reason to apprehend that a cap-

Smith

ture will be the consequence of going on."* sal inramce

Company.

Mr. Pinkney, and Mr. D. B. Ogden, contra, ar-
gued, that in order to establish a technical total loss
in this case, the insured must show a restraint,
within the policy and declaration ; and that it ac-
tually produced the breaking up of the voyage. The
onus probandi is on the plaintiffs, and they must
trace the supposed consequences of the peril home to
its efficient cause. The insurance was on munitions,
contraband of war ; but the memorandum that the
underwriters were not to be liable for a loss by illicit-
trade, secured them against any loss by mere muni-
cipal regulations. They have nothing to do with aft
internal conflict, by which the port may change mas-
ters. The declaration alleges a loss by restraint of
princes. But this restraint must be the direct and
immediate agent in breaking up the voyage ; as in
an embargo, or blockade, which being removed,
the peril instantly ceases. Here the restraint was
not only not the efficient cause of the loss, but it arose
out of illicit traffic. This part of the coast of Mexico
did not cease to be subject to the colonial code of
Spain, by the temporary possession of the insurgents.
The vessel attempted to escape, not merely from the

a Per Livingston, J. 1 Johns. Rep. 262. and Target. Ponde-
raz. e. 59. «91. Casaregi*, Disc. 83. No. 84, cited by him-
See also 1 Emerig. des Assur. 509.

184 CASES IN THE SUPREME COURT

1821. ordinary peril of capture in war, but from that com-

s,frv^' bioed with the local prohibition. It was a loss from

v. a fear, which had it been realized, would not have

ma Insurance made the underwriters liable. All the quia timet

Company. cases^ are cases where they would be so liable. The

attempt is to make the underwriters find a lawful

market; whereas the insured stipulates to take that

upon himself by his warranty. Even if the market

were lawful for a time, its ceasing to be so is not at

the risk of the underwriters. So that the insured

have broken up the voyage for a technical total loss,

arising from perils not insured against.

February 2m. Mr. Justice Story delivered the opinion of the
Court, and, after stating the facts, proceeded as
follows :

Upon these facts, the Circuit Court directed the
jury that the plaintiffs were not entitled to recover ;
and the propriety of this direction is the question
before us upon this writ of error.

Two points have been argued at the bar : 1. That
there was no actual restraint of persons acting under
the authority of Spain, whereby the voyage was de-
feated. 2. That if a technical total loss took place,
by the loss of the voyage, it was a loss occasioned by
engaging in an illicit and prohibited trade, for which,
by the memorandum in the policy, the underwriters
are not liable.

The declaration and the abandonment, both tie up
the case to a total loss of the voyage, by the restraint
of Spanish authorities. If this case be not made out
in proof, there is an end of the controversy.

OF THE UNITED STATES, 185

In cases of this sort, where a technical total loss is mi.
asserted as a ground of recovery, it is not sufficient
that the voyage has been entirely frustrated and lost ;
but the loss must be occasioned by some peril ac- taiinraram
tually insured against. The peril must act directly, ^""P*"*'
and not circuitously, upon the subject of the insu* ySrSioSi
ranee. It must be an immediate peril, and the loss mQ^ebeV<3^
the proper consequence of it ; and it is not sufficient &££**£ <%Z
that the voyage be abandoned, for fear of the ope* fau^agauut
ration of the peril.

The plaintiffs rely upon the fact, of the EHen
Tooker's being chased away from St. Ander, and
being prevented for several days from returning to
that place by the presence of Spanish armed ships,
as decisive proof of actual restraint. But the voyage
was delayed only, and not broken up by this occur*
rence, for the vessel afterwards returned in safety to
St. Ander. The insurers do not undertake that if a peril be-

rina to act upon

the voyage shall be performed without delay, or that ^tgfg2JlrS
the perils insured against shall not occur ; they un- %k£ "JuS!
dertake only for losses sustained by those perils ; ST^tSS?
and if any peril does act upon the subject, yet if it » "J*& *»
be removed before any loss takes place, and the voy- JEJJS^ff*
age be not thereby broken up, but is, or may be re- totel kM9>
sumed, the insured cannot abandoft for a total loss.
If a vessel be captured during a voyage, and after*
wards be recaptured, and performs, or may perform
it, there can be no abandonment after the recapture,
for a technical total loss. In the present case, the
vessel actually did resume her voyage after the re-
straint ceased ; and there is no evidence to show that
any object of the voyage was defeated by this tern*

Vol. VI. 24

186 CASES IN THE SUPREME COURT

1821. porary restraint and delay to avoid' capture. Then,
s^*v*w what was the real cause of the final destruction of
SB^h the voyage ? It was, that St. Ander, which but for.
.Til^r^e a short time was in the possession of the troops of
Company. cenerai Mina, was, in transitu, again occupied by
the royalists, and the colonial Government resumed
its functions. A trade was inhibited with that place,
by the ordinary colonial laws of Spain ; and the
voyage itself, in which the Ellen Tooker was en-
gaged, placed her, and her cargo also, in the cha-
racter of an enemy. It was clear, therefore, that a
proceeding into St. Ander, would have subjected
the Ellen Tooker to confiscation for a double cause ;
for breach of the ordinary laws of trade, and for a
violation of neutral duties. The voyage then was
broken up from fear of loss, by reason of the seizure
and confiscation of the property. It was abandoned
by the master quia timebat, and not because there
was any actual direct restraint, which prevented the
vessel from proceeding to the port of destination. The
case, therefore, falls directly within the authority of
Thecaseiof the cases of Hadkinsonv. Robinson, 3 Bos. and
no*n«m,3Bu. Pull. 388. and Lubbock v. Rowcroft, 5 Esp. R. 50.

and PulL 388.

and L*»ock ▼. which have never been shaken. In the former case,
iwgoodiSr50, Lord Alvanley said, " any loss which necessarily
arises from capture or detention of princes, is a loss
within the policy ; but here the Captain, learning
that if he entered the port of destination, the vessel
would be liable to confiscation, avoided that port,
whereby the object of the voyage is defeated. This
does not operate to the total destruction of the
thing insured." There are precisely the same circum-

< OF THE UNITED STATES. 187

stances in the case now at bar. The underwriter i82i.
does not warrant that the vessel shall have a right to ^f^£^tt
trade at the port of destination ; but only that not- Edwards.
withstanding the perils insured against, the vessel
shall proceed to such port. If the plaintiffs,
in the events which have occurred, were entitled to
abandon and recover, as for a technical total loss,
they would have been entitled to abandon for the
same cause at the time of the vessel's sailing from
New- York on the voyage ; for St. Ander was at
that time just as much shut against the vessel, and
she was just as liable to confiscation for illegal traf-
fic with that place, as she was at the time the voy-
age was broken up.

It is the unanimous opinion of the Court, that the
judgment of the Circuit Court be affirmed, with
costs.

(Instance Court.)

The Robert Edwards. Savage, Claimant.

A question of fact, under the 46th section of the Collection Law of
the 2d March, 1799, o. 128. exempting from duty the wearing ap-
parel, and other personal baggage, of persons arriving in the United
States.

Where the re* gesta, in a revenue cause, are incapable of explana-
tion consistently with the innocence of the party, condemnation
follows, although there be no positive testimony of the offence hav-
ing been committed. Circumstances are sometimes more convin-
cing than the most positive evidence.

188

1821.

The K'jbcrt
Edwards.

CASES IN THE SUPREME COURT

Although a mere intention to erade the payment of duties be not, per
«, a cause of forfeiture, yet when a question arises whether an act
ha* been committed which draws after it that consequence, such in-
tention will justify the Court in not putting on the conduct of the
party, in respect to ihe act in question, an interpretation as faTour-
able as under other circumstances it would be disposed to do.

Appeal from the Circuit Court of South Caro-
lina.
February im. This cause was argued by Mr, Winder and Mr.
Raymond, for the appellant and claimant, and by the
Attorney- General for the United States.

February 2&/*. Mr. Justice Livingston delivered the opinion of
the Court,

This is a libel for an alleged forfeiture under the
46th section of the Collection Law, passed the se-
cond of March, 1799.

This section exempts from duty the wearing ap-
parel, and other personal baggage, of those persons
who arrive in the United States ; and to ascertain
what articles are to be exempted, it is directed that
due entry thereof, as of other goods, but separate,
and distinct therefrom, shall be made with the Col-
leetor> by the owner or his agent, verified by oath,
stating, among other things, that the packages
mentioned in such entry, contain no goods whatever,
except the wearing apparel and other personal bag-
gage of the person to whom they belong. And it is
provided, ih;it whenever any articles subject to duty,
shall be found among such baggage, which shall not
be mentioned to the Collector at the time such entry
is made, they shall be forfeited, and the person in

OP THE UNITED STATES. 18&

whose baggage they shall be found, shall, moreover, . 18*1.
forfeit and pay treble the value of such articles. J^T^l

rriL _, , The Robert

These proceedings commenced in the District Edwards.
Court of the district of South Carolina, and after
sentences of condemnation in that Court, and in the
Circuit Court of the United States for that district,
the claimant has appealed to this Court.

The only question we have to decide, is, whether
the goods libelled, and which are admitted to be sub-
ject to duty, were entered as baggage or not. If they
were, they must be condemned ; if not, the claimant
is entitled to restitution.

The claimant insists that the trunks seized were
not included in her baggage entry, and that no act of
her's, prior or subsequent to the entry, shows that it
was her intention to cover them by it. Her baggage
entry comprised " seven trunks wearing apparel,
sundry band-boxes and bedding, for Mrs. Savage and
family, passengers in the ship Robert Edwards.**
Under this entry, and a permit given in conformity
with it, the claimant took away several trunks and
band boxes, the contents of some of which do not
appear, but she alleges that they contained only
baggage, and no dutiable article, and that she never
demanded the trunks in question as part of those
mentioned in the entry of her baggage. Some re-
liance is also plaeed on the fact, that before any sei-
zure, these trunks were regularly entered by the
master, and the duties on them secured, or paid.
Whether they were thus entered or not, can have
no influence on the present question, which is con-
fined to the single inquiry, whether they had pre-

190

CASES IN THE SUPREME COURT

1321-

The Robert
Edward b p

vious to such act on the part of the master, been en-
tered by the owner as part of her baggage. For, no
act of the master, subsequent to such entry, could
relieve them from the forfeiture which in that case
had previously attached.

It will be sufficient to advert to a few of the
prominent facts, to ascertain the real character of
this transaction. The Court has been reminded that
it ought not, without the most satisfactory and
positive proof, in a case so highly penal, to decide
that a violation of law has been committed. Al-
though such proof may generally be desirable, we
are not to shut our eyes on circumstances which
sometimes carry with them a conviction which the
most positive testimony will sometimes fail to pro-
duce. And if such circumstances cannot well con-
sist with the innocence of the party, and arise out of
her own conduct, and remain unexplained, she can-
not complain if she he the victim of them. No ex-
traordinary prudence or circumspection on the part
of the claimant, was necessary to have avoided the
unpleasant predicament in which she is placed. If
she had brought these goods on board in London, as
cargo; if she had paid freight for them as such ; if
she had desired them to be placed on the manifest of
the cargo, which she was most probably apprised
was necessary \ if, when she entered her other mer-
chandise imported in the same vessel, she had also
entered these : if, after making her baggage entry,
she had distinguished or informed the inspector
which of the trunks contained her baggage, and
which were filled with merchandise, the whole

OF THE UNITED STATES. 191

of the present difficulty would have been avoided. 1821.
The claimant neglecting to take any one of these £f^T^t
precautions, which could not have been the effect of Edwards.
ignorance, as it appears she is occasionally engaged
in the importation of goods in the line of her busi-
ness, leads, irresistibly, to the conclusion, that she
intended to land these trunks without the payment
of duties, and that this end was to be effected under
the disguise of entering them as baggage and wear-
ing apparel. Although a mere intention to evade
such payment be no cause of forfeiture, yet when a
question arises, whether an act has been committed
which draws after it this consequence, such inten-
tion will assist in dispelling some of the doubts in
which the act itself might otherwise be involved, and
will justify a Court in not putting on the conduct of
the party, in relation to the act in question, an inter-
pretation as favourable as under other circumstances
it would feel disposed to do. Thus, in the case be-
fore us, the claimant wishes us to believe, that the
seven trunks of wearing apparel, and the band-boxes
which were included in her baggage entry, were all
of them actually landed under her permit ; and that,
therefore, the five trunks which remained on board,
and were seised as composing part of her baggage
entry, were not comprised in it. But is this made
out with any reasonable certainty ? On the contra-
ry, is there any evidence whatever on which we can
come to a satisfactory conclusion, that seven trunks,
which was the number entered by her as baggage,
were actually landed before the seizure. What the

192 CASES UFTHE SUPREME COURT

i*2i. claimant herself considered as band-boxes, and ac-
ThTRrt^rt tua"y represented as such to the inspector, she now
iMwards. desires may be converted into trunks. Unless this
can be done, which would be to disbelieve the whole
evidence in the cause, there is no pretence for saying,
that all the trunks entered by her as baggage had
been landed. The marks on the trunks do not fur-
nish even a presumption in her favour, for on those
landed, and on those seised, we find the same in-
scription, that is, '- Mrs. Savage's baggage, apparel,
and haberdashery?* In this uncertainty and confu-
sion, which is the result of her own irregular con-
duct, and which it was her business, and not that
of the Court, to remove, she has exposed her case to
very unfavourable inferences. One of the trunks land-
ed was em pty , or contained only a few books and loose
papers ; and yet it appears, by a cocket produced
before the Circuit Court, that this very trunk, when
taken hoard, was valued in London at 115 pounds
sterling. What became of the goods which it then
contained, is left without explanation. This forms
a part of the res gesta, and is a circumstance, if not
of strong suspicion, at any rate but little calculated
to evince the integrity of the transaction.

Without, therefore, entering into a more minute de-
tail of the circumstances of this case, the Court is
well satisfied, from the whole of the evidence, not-
withstanding some little obscurity in which it is in-
volved, that the trunks in question formed a part of
the baggage entry of the claimant, and, therefore,
affirm the sentence of the Circuit Court, with costs.

OF THE UNITED STATES

(Prize.) TheNueva

Anna, and

The Noeva Anna and Likbre. The Spanish Liebre'
Consul, Claimant.

This Court does net recognise the existence of any lawful Court of
Prize at Galreztown, nor of any Mexican republic or state, with
power to authorize captures in war.

Appeal from the District Court of Louisiana.

These were the cases of the cargoes of two Spa-
nish ships, captured and condemned by a pretended
Court of Admiralty at Galveztown, constituted by
Commodore Aury, under the alleged authority of
the Mexican republic. The goods were, after this
condemnation, brought into the port of New-Or-
leans, and there libelled by the original Spanish
owners in the District Court. That Court decreed
restitution to the original owners, and the captors ap-
pealed to this Court.

This cause was argued by Mr. Hopkinson for February &tk.
the respondents and libellants, no counsel appearing
for the appellant and captors.

The Court stated, that it did not recognise the
existence of any Court of Admiralty sitting at Gal-
veztown, with authority to adjudicate on captures,
nor had the Government of the United States hither-
to acknowledged the existence of any Mexican re-
public or state at war with Spain ; so that the Court
could not consider as legal, any acts done tinder the

Vol, VI. %h

194 CASES IN THE SUPREME COURT

18M. flag and commission of such republic or state. But,
%^v-^' as the record, in this case, stated the capture to have
lector. " been^made uuder the flag of Buenos Ayres, it be-
came necessary to send back the case, in order to
ascertain under what authority it was in fact made.

Sentence reversed, and cause remanded for far-
ther proceedings.

(Instance Court.)

The Collector. WUmot, Claimant.

In all proceedings in rem, on an appeal, the property follows the
cause into the Circuit Court, and is subject to the disposition of
that Court. But it does not follow the cause into the Supreme
Court, on an appeal to that Court.

After an appeal from the, District to the Circuit Court, the former
Court can make no order respecting the property, whether it baa
been sold, and the proceeds paid into Court, or whether it remains
specifically, or its proceeds remain, in the hands of the Masshai.

It is a great irregularity for the Marshal to keep the property or the
proceeds thereof in his own hands, or to distribute the same among
the parties entitled, without a special order from the Court; bat
such an irregularity may be cured by the assent and ratification
of all the parties interested, if there be no mala fidet.

Appeal from the Circuit Court of Maryland.
The facts of this case were as follow :
In the year 1807, the schooner Collector and car-
go were libelled in the District Court of the district
of Maryland, as forfeited under the act of Congress,

OF THE UNITED STATES. 195

prohibiting commercial intercourse with certain mi.
ports of St. Domingo. v--r>^w

John Wilmot, the present petitioner and libellant, lector.
and the house of Tagart & Caldwell, claimed the
whole property.

Pending the proceedings in the District Court, the
vessel and cargo were sold under an order to " bring
in the proceeds, subject to the future disposition
thereof." The money, notwithstanding this order,
was never paid to the clerk, nor was it ever depo-
sited by him in any Court, and the Court never af-
terwards made any order respecting it.

The property was condemned in the District, and
Circuit Courts, which latter decree was reversed by
the Supreme Court, in the Term of February, 1809
and the property libelled ordered to be restored.
The mandate of the Supreme Court was filed be-
low, the 1 1th of May following. The present libel
and petition was filed in the District Court, the 8th
of June, 1816, when a decree passed dismissing the
same, which was afterwards affirmed by the Circuit
Court, from whose sentence this appeal was taken.

The object of the present appeal was to obtain
the benefit of the decree of the Supreme Court, that
is, restitution of the property, according to the rights
of the respective claimants ; the appellant insisting
on one half of the proceeds of vessel and cargo, as
joint owner, and also upon a lien on the other half
as ship's husband, for advances made beyond his pro*
portion of the outfits of the voyage, as well as foi:
expenses in defending the vessel and cargo against
the information which had been filed against them,

mmm

196 L'ASES IN THE SUPREME COURT

J8ffi^ and for this purpose prayed that the Marshal might
Tbe a*. he ordered to bring in the proceeds, according to the
Wr. interlocutory decree, and that the same might be
restored, pursuant to the decree of the Supreme
Court, preserving to the parties their respective
rights, liens, kc. concluding with a general prayer
for relief.

From tire petition of the appellant, the answer of
the Marshal, and the proofs in the cause, it appeared,
that the Marshal, although he sold the schooner and
her cargo, did not, in fact, bring the money into
Court. That for the moiety of the proceeds belong-
ing to Tagart & Caldwell, an order was given by
then, in favour of Vaa Wyck & Dorsey, as early a*
March, 1807, in consequence of which order Van

a andJWy, who sold the property at auction,
uuder the Marshal's directions, were permitted to re-
tain the pan belonging to Tagart & Caldwell, upon
an understanding to keep it, if the vessel and cargo
were acqumed, but to return it in case of a different
issue. That the other moiety of the proceeds was
paid on the 6th of April, 1H09, which was pre-
vious to the filing of the mandate in rhe Court

below, by the Marshal, to the present appel-
lant aS appears hy h.s ^.^ Qf (j]a( IT^

which expresses the sum therein mentioned, to be
for hls one half of the net proceeds of the sale of the
schooner Collector and cargo. The Marshal died
pendmg the proceedings, and they were revived
agaiust his executors,

**-. m M, Mm* for the appellant and claimant,

OP THE UNITED STATES. 197

(1 .) stated, that this was not a motion in the Court be- 1821.
low, for a rule against the Marsha), to lay the foun- ^^^
dation for an attachment, but a proceeding in the ketor- j
nature of an original libel, to give effect to the sen-
tence of this Court, as another Court of Admiralty,
in the former cause. That the District Court has
jurisdiction to sustain such a libel or petition, found-
ed upon the sentences of foreign Courts, and a far*
tiori of our own, appears by numerous authorities/
The mandate from this Court was properly filed in
the District Court, because if the proceeds were to
be considered as in Court at all, they were in that
Court. They remained in that Court, notwithstand-
ing the appeal, and it was, therefore, the proper tri-
bunal to execute the decree of restitution. Accord-
ing to the English practice in proceedings in rem,
the thing in controversy does not follow the suit into
the Court of Appeals, but remains in that where the
proceeding was originally commenced.6 This is
also the law of our own country/ The ground of
complaint here is, that the proceeds have not been
brought into the registry, in pursuance of the inter-
locutory decree of the District Court, which is the
only tribunal competent to vindicate its own decrees.
The Circuit Court has no original jurisdiction in

a PeBballoir v. Doane, 3 Dall. 54. 97. 118. Jennings v.
Canon, 2 Cranch, 21. Livingston v. M'Kenzie, 3 Term Rep*
323. Not*. Smart v. Wolff, 3 Term Rep. 329. 2 Bro. Civ.
and Adm. Law, 120. 7 Vez. jun. 593. Camden v. Home,
4 Term Rep. 385. 395.

b 2 Bro. dv. and Adm. Law, 405.

c Jennings v. Carson, 2 Cranehf 21.

198 CASES IN THE SUPREME COURT

1821. Admiralty and Maritime cases, and cannot redress a
^£v2d- violation of the orders of the District Court. The
Uctor. object of the present application, is not merely to
compel the payment of the proceeds into Court, but
to obtain payment of money out of Court, which re-
quires the solemnity of a petition analogous to the
proceedings in Chancery in a similar case. Lord
Eldon would never suffer money to be paid out of
Court on motion, but put the party to his .petition,
stating his rights, which would thus appear on the
records of the Court at any distance of time ; and
this practice was approved and adopted by Lord
Erskine." (2.) The claimant insists upon his lien
as part owner and ship's husband, on the voyage in
which she was seised, for advances made by him, be-
sides his absolute right in one moiety/ It is an in-
controvertible principle, that where property is taken
out of the hands of a party, in invitum, and by legal
process, the law will retain all his liens,' and return
it to him, still subject to them, as before/ It is true,
that a person holding a dormant title, who stands by
1 and witnesses a sale to another, is guilty of fraud ;
but if this lien be an equity raised by law, and not by
the act of the parties, it requires no notice. The
receipt of part out of the registry of a Court of
Admiralty, is no bar or prejudice to the residue of
the claim, but the party may afterwards file his libel,
and have a monition for the further sum due/ The

a 3 Fez. jun. 393.

b Abbott on Shipp. 1 14. Story's ed.

c Wilson v. Kymer, 1 Maul. * Selw. 157. 163.

d Bymer v. Atkyns, \ H. Bl. 167.

OF THE UNITED STATES. 199

Marshal has not done bis duty under the interlocu- mi.
tory decree, directing him to bring the money into IjT^^V
Court. We do not insist on an actual delivery to lector,
the register, in facie curia, but that the specific pro-
ceeds should be separated from all other property,
so that the decree of the Court shall act upon it,
without the necessity of the concurring will of the
officer. The property is not to be confounded with
the private funds of the officer, so that it cannot be
distinguished and recovered, if he absconds ; or if
he dies, will be subject to a distribution of assets in
the hands of hi* personal representative.0 In this
case, the executor is liable, not as for a tort, but to
restore funds which are not assets in his hands.

Mr. Pinkney and Mr. Wheaton, contra, (1.) in-
sisted, that the cases cited on the other side, of Jen-
nings v. Carsonf and Penhallow v. Doane,c were
proceedings to enforce the decrees of the Continental
Court of Appeals, which had ceased to exist ; simi-
lar in their nature to those cases in England where
the prize commissions to certain Vice-Admiralty
Courts had expired, and application was made to the
High Court of Admiralty to carry into effect their
decrees.4 In the cases cited, the District Court had
jurisdiction, because it is a Court of Prize of the
first resort, with all the powers of the English High

a The Princessa and La Reine Elizabeth, 2 Rob. 31.

b 2 Cranch, 21.

c 3 Dall. 54.

d The Picimento, 4 Rob. 360.

200

CASES IN THE SUPREME COURT

182H

Tbe Col-
lector.

Court of Admiralty inherent in it ; and the proceed*
ing could be commenced no where else, because it is
the only Court of original prize jurisdiction. But
the present case is a proceeding under the judiciary
act, where the Supreme Court does not execute its
own decrees, but sends its mandate to the Circuit,
and not to the District Court; and the Circuit
Court must, therefore, execute the mandate, and dis-
tribute the proceeds of the property. The property
follows the cause into the Circuit, but not into the
Supreme Court. (2.) Here the distribution, though
irregularly made by the Marshal, without tbe special
direction of the Court, is precisely what the Court
would have made upon an application. It is a rule
of the Court of Admiralty to restore, or to condemn,
the gross tangible property, without regard to any
liens which parties other than the general owners
may have upon it. So that if the Court had now
to pronounce tbe distribution of the property, it
would not enter into these minute inquiries respect-
ing the claims of the part owners against each other,
but leave them to their remedy at common law or in
equity. Thus, in the case of the Jefferson f Sir W.
Scott refused to sever the share of a bankrupt part-
ner in favour of his assignees, but restored the pro-
perty in solidum, leaving the assignees to their re-
medy in the proper forum. (3.) But supposing the
Court would interfere to protect the pretended lien,
there is no proof of its existence ; or if it ever exist-
ed, it has been waived, and the distribution made

a J Rob. 325.

op The united states. 2Q1

With the assent of all the parties interested. The mi.
appellant has received his moiety of the gross pro- ^J^^
perty. And even if it were not so, the personal re- lector,
presentative of the deceased Marshal is not liable in
this form. The regular course would be to proceed
against the Marshal himself, by motion, and a rule
directing him to bring the money into Court. But
this proceeding could not be continued against his
executors. The provisions of the judiciary act re-
lative to the revival of suits, do not apply to this
proceeding, because it cannot, upon general prin-
ciples of admiralty law and practice, be continued
against the personal representatives of the officer.
If it could be revived against them, the relation of
their testator with the Court, as an officer, would
cease, and it would become a common debt, subject
to the ordinary course of administration.

Mr. Justice Livingston delivered the opinion of March 24
the Court, and after stating the facts, proceeded as
follows : This is, to say the least, a very novel and
extraordinary proceeding. The Marshal, probably,
without any improper views, or an intention of
making use of the proceeds of the vessel and cargo,
disobeys the order of the Judge, and instead of de-
positing them in the registry of the Court, keeps
them under his own control, and finally distributes
them among the parties without any direction of the
Court on the subject. This was a great irregulari-
ty, but the owners of the schooner Collector and
cargo have no right at this day to complain of it.
They were early apprised of the situation of their

Vol. VI. 26

306 CASES IN THE SUPREWf: COURT

I82t property. Two of them gave an order on tht Ma?-
^^^ shal for their proportion of the proceeds before any
lector. sale had taken place ; and the other, who \a the pre*
sent appellant, received of the Marshal his share
before the sentence of reversal, which was pro*
nounced here, had been made known to the Court
below. After this ratification, or sanction, on their
part, of the irregular conduct of the Marshal, neithet
of them ought now to be permitted to seek any other
redress from him. Before any distribution of the
proceeds by the Marshal, they might have applied
to the Court to enforce obedience to its order, as it
regarded the bringing of them into Court, and then
have had their respective pretensions adjudicated by
the Court itself. Not having proceeded in this
manner, the District Court, if it have jurisdiction of
the case, could not now, without great danger of do-
ing injustice, interfere in this business. Whatever
notice it might have taken of the lien, which is now
set up by the appellant, on a part of these proceeds
beyond his moiety, if the proceeds were still in that
Court, it is by no means clear, that the Marshal
ought now to be rendered liable to the appellant for
them, there being nothing like satisfactory proof,
that he had notice of such a claim when the appel-
lant took from him his moiety, nor until long after
he had parted with the whole of the property. Under
this view of the case, the Court is of opinion, that
the appellant, under the particular circumstances of
this case, is not entitled, on the merits, to any relief
against the Marsha). But the Court is further of

Or TUB UNITED STATES. 90g

opinion, that the proceeding on the present petition, ltft.
and that in the District Court, was coram nonjudice. ^^

By an appeal from the sentence of a District lec**r-
Court to a Circuit Court, the latter becomes pos-
sessed of the cause, and executes its own judgment
without any intervention of the former. It is fit,
therefore, that the proceeds of the property, if it
have been converted into money, should follow the
appeal into the Circuit Court, and be deposited in
such bank, or other place, as it may direct* there to
remain, subject to the disposition and direction of
the Circuit Court. And if the property at the time
Of the appeal remain in specie in the Marshal's cus-
tody, and any order or direction shall become neces-
sary for its sale or preservation after an appeal, such
order must emanate from the Circuit Court. But if
a further appeal be had to the Supreme Court, the
property, or its proceeds, will still continue in the
Circuit Court, because the Supreme Court, in such
cases, does not execute its own judgments, but sends
a special mandate to the Circuit Court to award exe-
cution thereon.

The proceeds, therefore, of the Collector and
cargo, at the time of filing the present petition and
libel, even if the order of the District Court in rela-
tion to them, had been complied with, could not,
after the appeal, be regarded as in, or under, the
control of the District Court, which was, therefore,
incompetent, when this petition was filed, to mak*
any order respecting them.

Sentence affirmed, with costs.

CASES IN THE SUPREME COURT:
(Constitutional Law.)

Anderson v. Dunn.

To an action of trespass against the Sergeant at Arms of the House of
Representatives of the United States, for an assault and battery
and false imprisonment, it is a legal justification and bar, to plead,
that a Congress was held and sitting, during the period of the tres-
passes complained of, and that the House of Representatives had
resolved that the plaintiff had been guilty of a breach of the privi-
leges of the House, and of a high contempt of the dignity and au-
thority of the same ; and had ordered that the Speaker should issue
his warrant to the Sergeant at Arms, commanding him to take the
plaintiff into custody, wherever to be found, and to have him before
the said House, to answer to the said charge ; and that the Speaker
did accordingly issue such a warrant, reciting the said resolution
and order, and commanding the Sergeant at Arms to take the plain-
tiff into custody, &c. and delivered the said warrant to the defend-
ant : By virtue of which warrant the defendant arrested the plain-
tiff, and conveyed him to the bar of the House, where be was heard
in his defence, touching the matter of the said charge, and the exa-
mination being adjourned from day to day, and the House having
ordered the plaintiff to be detained in custody, he was accordingly
detained by the defendant, until he was finally adjudged to be
guilty, and convicted of the charge aforesaid, and ordered to be
forthwith brought to the bar, and reprimanded by the Speaker,
and then discharged from custody ; and after being thus repri-
manded, was actually discharged from the arrest and custody afore-
said.

Error to the Circuit Court of the District of Co-
lumbia.

This was an action of trespass, brought in the
Court below, by the plaintiff in error, against the de-
fendant in error, for an assault and battery, and false
imprisonment : to which the defendant pleaded the
general issue, and a special plea of justification. The

OF THE UNITED STATES. 206

plaintiff demurred generally to the special plea, iwi.
which was adjudged good, and the demurrer over-
ruled : and judgment upon such demurrer was enter-
ed for th$ defendant, and a writ of error brought by
the plaintiff. The question arising upon the demur-
rer will be best explained by giving the defendant's
plea at large,. as pleaded and adjudged good upon
general demurrer, in the Circuit Court, viz. :

And the said Thomas, by the leave of the Court
here first had, further defends the force and injury,
when, &c. And as to the coming with force and
arms, or whatsoever is against the peace ; and also
as to the assaulting, beating, bruising, battering, and
ill-treating of the said John, in / manner and form as
the said John, in his said declaration, hath above sup-
posed to be done, the said Thomas saith that he is
not guilty thereof; and of this he, as before, puts
himself upon the country : And as to the imprison-
ment of the said John, and the keeping and detain-
ing him in confinement, at the time in the said decla-
ration mentioned, to wit, on the said eighth day of
January, in the year one thousand eight hundred and
eighteen, and for the space of two months in the said
declaration mentioned, the said Thomas saith, that
the said John ought not to have or maintain his ac-
tion aforesaid against him, because he saith that
long before and at the said time when, &c. in the
introduction of this plea mentioned, and during all
the time in the said declaration mentioned, a Con-
gress of the United States was holden at the city of
Washington, in- the county of Washington, and Dis-
trict of Columbia aforesaid, and was then and there,

306

CASES IN THB SUWtEME COtJRT

1B31.

and during all the time aforesaid, assembled and sit*
ting ; and that long before and at the time when, kc*
in the introduction of this plea mentioned, and du-
ring all the time in the said declaration mentioned*
be the said Thomas was, and yet is, Sergeant at
Arms of the House of Representatives, (then and
there being one of the Houses whereof the said Con-
gress of the United States consisted) and by virtue of
his said office, and by the tenor and effect of the
standing rules and orders ordained and established by
the said House for the determining of the rules of Its
proceedings, and by the force and effect of the laws
and customs of the said House, and of the said Con-
gress, was then and there, and during all the time
aforesaid, and yet is duly authorized and required,
amongst other things, to execute the commands of
the said House, from time to time, together with all
such process issued by authority thereof, as shall be
directed to him by the Speaker of the said House :
and that long before, and at the time when, &c. in
the introduction of this plea mentioned, and during
all the time in the declaration mentioned, one Henry
Clay was, and yet is, the Speaker of the said House
of Representatives, and by virtue of his said office,
and by the tenor and effect of such standing rules and
orders as aforesaid, and by the force and effect of
such laws and customs as aforesaid, then and there*
and during all the time aforesaid, was and yet is,
amongst other things, duly authorized and required
to subscribe with his proper hand, and to seal with
his seal, all writs, warrants, and subpoenas issued by
order of the said Howe : and that long before and

OP THB UtflTED STATES. 2D7

9/l the time when, &c. In the introduction of this im.
plea mentioned, and during all the time in the said
declaration mentioned, one Thomas Dougherty was,
and yet is, the Clerk of the said House of Repre-
sentatives ; and by virtue of his said office, and by
the tenor and effect of such standing rules and or-
ders as aforesaid, and by the force and effect of such
Jaws and customs as aforesaid, then and there, and
daring all the time aforesaid, was and yet is, amongst
other things, duly authorized and required to attest
And subscribe with his proper hand, all such writs,
warrants, and subpoenas issued by order of the said
house : and that long before, and at the time when,
&c. in the introduction of this plea mentioned, and
during all the time in the said declaration mentioned,
and ever since, it was and yet is, amongst other
things, ordained, established, and practised, by and
under such standing rules and orders as aforesaid,
and such laws and customs as aforesaid, that all
writs, warrants, subpoenas, and other process issued
by order of the said House, shall be under the hand
aqd seal of the said Speaker of the said House, and
attested by the said Clerk of the said House ; and
so being under the hand and seal of the said Speaker,
and attested by the said Clerk as aforesaid, shall be
executed, pursuant to the tenor and effect of the
game, by the said Sergeant at Arms : And the said
Thomas, the defendant, further saith, that the said
Henry Clay, so being such Speaker of the said
House of Representatives as aforesaid, and the said
Thomas Dougherty, so being such Clerk of the
same House as aforesaid, and he the said defendant,

208

CASES IN THE SUPREME COURT

1821.

so being such Sergeant at Arms of the same House
as aforesaid, and the said Congress, so being assem-
bled and sitting as aforesaid, heretofore and before
the said time when, &c. in the introduction of this
plea mentioned, to wit, on the seventh day of Janu-
ary, in the year aforesaid, at Washington aforesaid,
in the county and district aforesaid, it was, in and
by the said House, for good and sufficient cause to
the same appearing, resolved and ordered, pursuant
to the tenor and effect of such standing rules and or-
ders so ordained and established as aforesaid, ana
according to the force and effect of such laws and
customs as aforesaid, that the said John had been
guilty of a breach of the privileges of the said House,
and of a high contempt of the dignity and authority
of the same ; wherefore, it was then and there, in
and by the said house, further resolved and ordered,
in the like pursuance of such standing rules and or-
ders as aforesaid, and of such laws and .customs as
aforesaid, that the said Speaker should forthwith
issue his warrant, directed to the Sergeant at Arms,
commanding him to take into custody the body of
the said John, wherever to be found, and the same
forthwith to have before the said House, at the bar
thereof, then and there to answer to the said charge,
&c. as by the journal, record, and proceedings of the
said resolutions and order in the said House remain-
ing, reference being thereto had, will more fully ap-
pear. Whereupon, the said Henry Clay, so being
such Speaker as aforesaid, in pursuance of such
standing rules and orders as aforesaid, and accord-
ing to such laws and customs as aforesaid, did, for

OP THE UNITED STATES. 209

the execution of the resolutions and order aforesaid, 1821.
afterwards, and before the time when, &c. in the in-
troduction of this plea mentioned, to wit, on the said
seventh day of January, in the year aforesaid, at
Washington aforesaid, in the county aforesaid, as
such Speaker as aforesaid, duly make and issue his
certain warrant, under his hand and seal, duly di-
rected to the said Thomas, the defendant, as such
Sergeant at Arms as aforesaid, (to whom, so being
such Sergeant at Arms as aforesaid, the execution of
such warrant then and there belonged,) and by the
said Thomas Dougherty, so being such Clerk as
aforesaid ; in and by said warrant, reciting that the
said House of Representatives had, that day, resolved
and adjudged, that the said John Anderson had been
guilty of a breach of the privileges of the said
House, and of a high contempt of its dignity and
authority ; and that the said House had thereupon
ordered the said Speaker to issue his warrant, direct-
ed to the said Sergeant at Arms, commanding him,
the said Sergeant, to take into custody the body of
the said John Anderson, wherever to be found, and
the same forthwith to have before the said House,
at the bar thereof, then and there to answer to the
said charge ; therefore, it was required that the said
Thomas, the defendant, as such Sergeant as afore-
said, should take into hid custody the body of the
said John Anderson, and then forthwith to bring
him before the said House, at the bar thereof, then
and there to answer to the charge aforesaid, and to
be dealt with by the said House, according to the
constitution and laws of the United States : and said
Vol. VI. 27

210

CASES IN THE SUPREME COURT

1821.

Henry Clay, so being such Speaker as aforesaid,
then and there, and before the said time when, Stc.
in the introduction of this piea mentioned, delivered
the said warrant to the said Thomas, so being such
Sergeant as aforesaid, to be executed in due form of
law. By virtue, and in execution of which said war-*
rant, the said Thomas, as such Sergeant as afore-
said, afterwards, to wit, at the said time when, &ic.
in the introduction of this plea mentioned, at Wash-
ington aforesaid, in order to arrest the said John,
and convey him in custody to the bar of the said
House, to answer to the charge aforesaid, and to be
dealt with by the said House, according to the con-
stitution and laws of the United States, in obedience
to the resolutions and order aforesaid, and to the te-
nor and effect of the said warrant, so issued as afore-
said, went to the said John, and then and there gent*
]y laid his hands on the said John to arrest him, and
did then and there arrest him by his body, and take
him into custody, and did then forthwith convey
him to the bar of the said House, as it was lawful
for the said Thomas to do for the cause aforesaid :
and thereupon such proceedings were had, in and by
the said House, that the said John was then and
there forthwith duty examined, and heard in his de-
fence, before the said House, at the bar thereof,
touching the matter of the said charge ; and that
such examination was, in and by the said House,
and by the resolutions and orders of the same, duly
adjourned and continued from day to day, from the
said time when, he. in the introduction of this plea
mentioned, until the sixteenth day of January, in th©

OP THE UNITED STATES, , 211

year aforesaid ; which said examinations were then mi.
so adjourned and continued, as aforesaid, from ne-
cessity, in order to go through and conclude the ex-
amination and defence of the said John, touching the
matter of the said charge, before the said House ;
neither the said examination, nor the said defence,
having been finished or concluded before the day
last aforesaid : during all which time, to wit, from
the said time when, &c. in the introduction of this
plea mentioned, until the day last aforesaid, it was,
in and by the said House, duly resolved and ordered,
from day to day, as the said examination was ad-
journed and continued as aforesaid, that the said
John should be remanded, kept, and detained in the
custody of the said Thomas, as such Sergeant as
aforesaid, by virtue and in execution of the said
warrant, in order to have such his examinations and
defence finished and concluded, in due form ; and
the said Thomas, as such Sergeant as aforesaid, af-
terwards, to wit, at and from the said time when,
&c- in the introduction of this plea mentioned, until
the said sixteenth day of January, in the year afore-
said, did, in pursuance of the last mentioned resolu-
tions and orders of said House, and by virtue, and in
execution of the said warrant, keep and detain the
said John in custody as aforesaid, and him did bring
and have, from day today, during the said time, be-
fore the said House, at the bar thereof, in order to un-
dergo such examinations as aforesaid, and to be heard
in his defence aforesaid, touching the matter of the
said charge, to wit, at Washington aforesaid, in the
county aforesaid, as it was also lawful for him, the

212

CASES IN THE SUPREME COURT

Aiuier&OQ
v.

)82i. said Thomas, tq do for the cause aforesaid : and
thereupon afterwards, to wit, on the said last men-
tioned sixteenth day of January, in the year afore-
DwiD~ s.ud, such further proceedings were had in and by
th ■? said House, that it was then and there finally re-
solved and adjudged, in and by the said House, that
the said John was guilty, and convict of the charge
aforesaid, in the form aforesaid ; and that he be
forthwith brought to the bar of the said House, and
there reprimanded by the said Speaker, fqr the out-
rage by the said John committed, and then that he
be forthwith discharged from Hie custody of the said
Sergeant at Anns : and thereupon the said John was
then and there, in pursuance of the last mentioned
resolutions, order, and judgment, forthwith repri-
manded by the said Speaker^ aud then forthwith
discharged from the arrest and custody foresaid ;
as by the journals, record, and proceedings of the
said resolutions^ orders, and judgment in the said
House remaining, reference being thereto had, will
more fully appear : which are the same several sup-
posed trespasses in the introduction of this plea men-
tioned, and whereof the said John hath, above in his
said declaration, complained against the said Tho-
mas, and not other or different: With this, that the-
said Thomas doth aver that the said John, the now
plaiutiff, and the said John Anderson, iu the said
resolutions, orders, warrant, and judgment respec-
tively mentioned, was, and is, one and the same per-
son : and that at the said several times in this plea
mentioned, and during all the time therein men-
tioned, the said Congress of the United States was

OF THE UNITED STATES. 213

assembled and sitting, to wit, at Washington afore- 1821.
said, in the county aforesaid : and this the said Tho-
mas is ready to verify : Wherefore he prays judg-
ment, if the said John ought to have or maintain his
aforesaid action thereof against him, &c.

Mr. Hall 9 for the plaintiff in error, made three February 20th.
points.

1. That the House of Representatives had no au-
thority to issue the warrant.

2. That the warrant is iHegal on the face of it.

3. That in either case, it is no justification to the
officer who executed it.

I. If the house had authority, it must be either in
virtue of the Constitution of the United States, of
usage and precedent, or as inherent in, and inciden- #

tal to, legislative bodies. In the Constitution there
are but two clauses which can be made to serve the
purpose. The first article, Section eight, enables
Congress to make all laws which may be necessary
and proper to effectuate the powers expressly given.
But it is obvious, that this merely authorizes the
Legislature collectively, not one House separately,
to pass certain laws, not mere occasional sentences.
And the powers delegated to the United States, be-
ing in derogation of the rights of sovereign States,
must be construed strictly.0 For the same reasons,
the authority to determine the rules of its proceed-
ings, (art. 1. sec. 5.) cannot be construed to operate
beyond the walls of the House, except on its own

a 2 Mass. Rep. 146.

214

CASES IN THE SUPREME COURT

1B21.

members, and its officers. It is observable, also,
that this authority is coupled with an authority to
punish its members for misbehaviour, and to expel a
member. It is a rule of construction, that the text
should be considered in connection with the context ;
but the context, viz- the power to punish and to ex-
pel, relates solely to the internal polity and economy
of the House. The authority is to determine the
rules of its proceedings, not the proceedings them*
selvesj for these are determined by the Constitution
itself in the first article. The fifth section of the
first article, authorizes the House to punish its mem-
bers ," el emuneraiio unius est exclusio alterius. The
power of issuing warrants is manifestly judicial*
This may he assumed as an axiom. The Constitu-
tion ordains, that the judicial power (which is equi-
valent to all the judicial power) shall be vested iu
one Supreme Court, and other inferior Courts,
(arL 3. sec, I.) Thus, the right of the Courts to
exercise such a power, is exclusive^ and an assump-
tion of it by any other department, is an usurpation.
Nor can the authority he inferred from usage and
precedent. These must be, either of the two Houses
of Congress, the State Legislatures, or the British
Parliament. On the journals of the House of Re-
presentatives, are found the cases of Randal and
Whitney, and two others. On those of the Senate,
is the case of the editor of the Aurora, &c. Shall
we be told, that these proceedings were acquiesced
in ? The want of spirit in the individual to resist
oppression, cannot fairly be construed into acquies-
cence on the part of the public ; since that resistance

OF THE UNITED STATES. 215

could be made only by the person immediately af- i«i.
fected. As to the usage of the State Legislatures, it
is either under colour of their unlimited powers, of
express provisions in their Constitution, or of the
common law and the usage of Parliament. In this
case, unlimited powers and express provision are not
pretended ; the penal code of the common law is no
p»rt of the federal system. Is, then, the authority
incident to legislative bodies ? An incident is de-
fined, " a thing necessarily depending upon, or ap-
pertaining to, another that is more worthy, or prin-
cipal." So the Constitution of the United States,
(art. 1. sec. 8.) when regulating the incidental
powers of Congress, authorizes it to make such
law only as may be " necessary" to effectuate the
, express powers. Necessity, then, is the criterion of
incident But is a power to punish the offer of a
bribe beyond the verge of the House necessary to
enable Congress to perform its duties ? The impu-
nity of the offence being the only possible reason of
the necessity, if the offender may be adequately
punished by the Courts of justice in the ordinary
mode of proceeding, the supposed necessity Ceases.
Bribery of a member of Congress is punishable in
the State Courts, and in the Circuit Court of the
District of Columbia, according to the course of the
common law. Redress may also be had before the
same tribunals, in case of the battery or libel of a
member ; and if the existing remedies be insufficient,
an act of Congress may be made to supply the de-
ficiency. And though the ordinary remedies should
not reach every possible case, it is a rule, that " if the

21G

CASES IN THE SUPREME COURT

1821,

words of a statute do not extend to a mischief which
rarely occurs, they shall not, by an equitable con-
struction, be extended to that mischief ; but it is a
casus omissus ; and the objects of statutes, are mis-
chiefs, qu&frtequentius accidunt"* It is evident, that
the framers of the Constitution deemed it more pru-
dent to leave such mere possihle mischiefs unprovid-
ed for, than to incur a certain evil by vesting an. ex-
traordinary and dangerous prerogative for their sup-
pression,

2, The warrant is illegal on the face of it. By
the fourth article of the amendments to the Consti-
tution, it is provided, that " no warrant shall issue
but on probable cause, supported by oath or affirma-
tion/' Thus, are prohibited, all warrants which do
not rest on oath, and on probable cause. But it is
no less necessary, that the warrant should recite the
cause in special and the oath. The Constitution is
not satisfied with u a cause" so vague and indefi-
nite, as " high contempt and breach of privilege."
When it adopts a term from the common law, it
adopts, also, the law regulating its incidents and pro-
perties, unless repugnant to that instrument. Now,
what are the incidents and properties of a warrant at
common law : It is said by Dalton, that " the
warrant ought to contain the special cause and mat-
ter whereupon it is granted, m

3, If there be either a defect of authority in the
House, or illegality in the warrant, it is no justifica-
tion. That it is none in the former case, has long

a Faugh, 373.

b Dalian's Sheriff, 169.

OP THE UNITED STATES 217

since been settled in this Court/ As to the latter mi.
alternative of the proposition, the constitution, by
prohibiting an act, renders it void, if done ; other-
wise, the prohibition were nugatory.* Thus, the
warrant is a nullity. The rights of Congress on the
subject of contempts, have been considered similar,
and equal to those of the federal Courts. But here
we must recur again to the maxim, that when the
constitution adopts a term from the common law, it
adopts, also, its incidents. At common law, the
power to punish contempt is incident to Courts.
But " Congress," and the u House of Representa-
tives," being terms unknown to the common law,
can derive no claims through it. Courts enforce the
laws ; they must, therefore, be clothed with authori-
ty to compel obedience to them : whereas, the Le-
gislature is merely deliberative. But, it is asked, are
the members to be insulted with impunity, in a man-
ner which will not authorize the interference of 3
Court ? If the insolence be merely by words or
gestures, not amounting to slander or assault, the
genius of our institutions does not admit of its pu-
nishment. Privilege of Congress is reduced by the
sixth section, art. 1. of the constitution, to ex-
emption from arrest, and freedom of speech. From
the nature of the enumerated privileges, it is evident,
that the sole object of giving them was to prevent
interruption of the business of the Houses, not to
render the person and feelings of members more
sacred than those of other citizens. An attempt to

a Little v. Barreme, 2 Cranch, 179.
b 4 Bl. Comm. 491.
Vol. VI. 28

318 CASES IN THE SUPREME COURT

1891. bribe a member may be made in Maine or Missouri*
The Speaker's warrant may be issued on a mere
allegation without oath, commanding the Sergeant
at Arms to arrest the accused " wherever found,**
and bring him to the bar of the House. So that ha
may be dragged from the extreme of the Union, to
be tried by a legislative body. Yet the constitution
(art. 3. sec. 2.) provides, that " the trial of all crimes
shall be by jury ; and that such trial shall be held in
the State and District where the offence was com-
mitted ;" and, also, (art. 5. amendments,) that " no
person shall be held to answer for an infamous
crime, except on the presentment or indictment of a
grand jury ; nor shall be deprived of liberty without
due process of law." And further, that " in all
criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial
jury of the State and District." It is only necessary
to compare the conduct of the House of Represen-
tatives, in the case at bar, with these provisions, ia
order to perceive its gross injustice and illegality.

The Attorney- General and Mr. Jones, contra, sta-
ted, that the only question before the Court was,
whether the House of Representatives could exer-
cise the power in question, either as incidental to its
legislative, or its judicial capacity.

1. The House being one branch of the Legislature,
no legislative act can be performed without its con*
currence, and therefore an attack upon it, is an at*
tack upon the whole Congress. The necessity of
self-defence is as incidental to legislative, as to judi-

OF THE UNITED STATES. 219

t*al authority. This power is not a substantive pro- 1*21.
vision of the common law adopted by us ; it is re-

Aadet*4n

D»m.

Cher a principle of universal law growiog out of the ^r.
natural right of self-defence belonging to all persons.
It is unnecessary to resort to the doctrine of construc-
tive contempts, in order to vindicate the conduct of
die defendant as a ministerial officer. He merely
executed the judgment of the House, pronouncing
the plaintiff guilty of a breach of privilege, and a
high contempt. It was confessedly within the com-
petency of the House to render such a judgment in
some cases : such as that of a direct interruption of
its proceedings by open violence within the walls.
But from the plea, non constat, what was the nature
of the offence committed by the plaintiff. Nor was
it necessary that the plea should set out the facts con-
stituting the contempt. It is sufficient for the pro-
tection of the officer, that the House has jurisdiction
to punish contempts, and that it had adjudged the
plaintiff guilty of a contempt The power of punish*
ing contempts is incidental to all Courts of justice,
and even to the most inferior magistrates, when in
die exercise of their public functions, and arises out
of the absolute necessity of the case, which renders
it indispensable that they should have such a power.
* 2. Each branch of the Legislature has certain pow-
ers of judicature under the constitution, and the
House of Representatives has the exclusive power
of impeachment ; fthich necessarily involves the
authority of compelling the attendance of witnesses,
and punishing them for contempt. Even Lord
Holt, who was an enemy of the extravagant privi-

220

1821.

CASES IN THE SUPREME COURT

leges of Parliament, admits that the power of im-
peach uient residing in the House of Commons, ne-
cessarily involved the authority of committing the
act used, and of punishing contempts,0 The powers
of judging of elections, and of punishing members
for disorderly conduct, necessarily involves all the
incidents of judicature* Nothing appears upon the
face of the record, to show th;it it was not in the ex-
ercise of these very powers, or in defence of the ad-
mitted privileges of the House, that the warrant is-
sued. It need not appear on the face of the warrant
that the cause out of which the contempt grew, w^s
within the judicial powers of the house. The mere
question between the ministerial officer and the of-
fender, is, whether the warrant was issued by a
Court of competent jurisdiction, and whether he has
pursued the precept in the manner of executing it.
In other words, the only question is, whether the
House has, in any case, the power of punishing con-
tempts. If it has jurisdiction, it is a peculiar exclu-
sive jurisdiction, and its exercise cannot be question-
ed or re-examined elsewhere. The doctrine is set>
tied and established in this Court, that the grant of
the powers expressly given to Congress in the con-
stitution, involves all the incidental powers necessary
and proper to carry them into effect/ And the ge-
neral grant of judicial powers to the Courts of the
United States, does not exclude the other branches
of the government from the exercise of certain por-

a Regina v. Paty, 2 Lori Raym* 1106.

b H'Culloch v. Maryland, 4 Wheat. Hep. 316.

OF THE UNITED STATES. 221

tions of judicial authority. The different depart- mi.
meats of the government could not be divided in this
exact, artificial manner. They all run into each
other. Even the President, though his functions are
principally executive, has a portion of legislative
power ; and the Congress is invested with certain
portions of judicial power. The whole of this sub-
ject has been thoroughly investigated, in two recent
cases in England, and the authorities cited on the
argument of those cases, renders it unnecessary to
repeat a reference to them on the present occasion.4

a Burdett v. Abbott, 14 East's Rep. 1. Bardett v. Colman,
ib. 163.

In these cases, the pleas by the Speaker and Sergeant at
Arms of the House of Commons justi6ed the supposed trespas-
ses under a warrant reciting a resolution of the House that
" a letter signed ' Sir Francis Burdett/ and a further part of a
paper entitled, * Argument,' in Cobbet's Weekly Register, of
March 24, 18 14, .was a libellous and scandalous paper, reflect-
ing on the just rights and privileges of that House ; and that Sir
Francis Burdett, who had admitted the letter and argument to
have been printed by his authority, has been thereby guilty of
a breach of the privileges of that House," and that it was there-
upon ordered by the House, that the plaintiff, for his said of-
fence, should be committed to the Tower ; and that the Speak-
er should issue his warrants accordingly. The cases were car-
ried from the Court of King's Bench to the Exchequer Cham-
ber, where the judgments in favour of the defendants were af-
firmed upon the same grounds stated by the judges of the K.
B. in East's Rep. The plaintiff, Sir Francis Burdett, having
brought a writ of error to the House of Lords, the cause was
argued for him by Mr. Brougham and Mr. Courtnay, in the
Session of 1816 — 1817. After the counsel for the plaintiff in er-
ror had been heard, Lord Eldon, (Ch.) proposed to their Lord-
ships that the counsel for the defendants should not be heard,

222

CASES JN TUB SUPREME COURT

1B1L

Anderson
v.

Dunn*

It is sufficient to say, that they fully establish the
doctrine that a legislative body has, from the neces-
sity of the case, a right to commit persons for con-

•
uotil tbe House should have received the opinion of the Judges
on the following question, vte. ** Whether, if the Court of Com-
mon Fleas, having adjudged an act to be a contempt of Court,
had committed for tbe contempt under a warrant, stating such
adjudication generally, without the particular circumstances,
and tbe matter were brought before the Court of Kmg*s
Bench, by return to a writ of habeas corpus, the return setting
forth the warrant, stating such adjudication of contempt gene-
rally ; whether, in that case, the Court of King's Bench would
discharge the prisoner, because tbe particular facts and circum-
stances out of which the contempt arose, were not set forth in
the warrant1*

The question being handed to the Judges, and they having
consulted among themselves for a few minutes, Lord Chief
Baron Richards delivered their unanimous opinion that in such
a case the Court of King's Bench would not liberate.

Lord El don, (Ch.) That this is a case of very great import*
ance none will dispute ; but, at tbe same time, I do not think it
a case of difficulty. If 1 did, I should be aniious to bear the
counsel for the defendants, before proceeding to judgment. But ,
iu my view of tbe case, considering it as clear in law, that the
House of Commons have the power of committing for contempt ;
that this was a commitment for contempt ; that the general na-
ture of tbe contempt, if that was necessary, was sufficiently set
forth in the warrant ; and being of opinion that the objections,
in point of form, have not been sustained, unless any other no*
ble Lord should express a wish to hear the counsel for the de-
fendants, I shall now move that the judgments in the Court be-
low be affirmed.

Lord Ekskikc. When this matter was first agitated, I under-
stood that the House of Commons intended to pursue a very

Anderson

OP THE UNITED STATES. 223

tempt, in breach of their privileges ; that they are ism.
the exclusive judges whether those privileges have ^^
been violated in the particular instance; and that v.

Pumu

different coarse. I was therefore alarmed. I expressed my*
self, because I felt, with warinth. I have changed none of the
opinions 1 then entertained ; I then said that the House of Com-
mons ought to be jealous of such privileges as were necessary for
its protection. My opinion is, that these privileges are part of the
law of the land, and upon this record there is nothing more
than the ordinary proceeding ; the Speaker of the House of
Commons, like any other subject, putting himself on the coun-
try as to the fact, and pleading a justification in law ; for this
was not a plea to the jurisdiction, but a plea in bar. This
course of proceeding gave rise to the most heartfelt satisfaction ;
for if the judgment had been adverse to the defendants, the
House would no doubt have submitted. It would be a libel en
the House of Commons to suppose that it would not. There-
fore, by this judgment, it appears that it is the law which pro-
tects the just privileges of the House of Commons, as well as
the rights of the subject.

The case has been argued with great propriety ; but it was
contended that it was not alleged in the warrant that the libel
was published by the plaintiff. But it is alleged that the paper
was printed by his authority. And if I send a manuscript to the
printer of a periodical publication, and do not restrain the
printing and publishing of it, and he does print and publish it in
that publication, then I am the publisher. The word reflect-
ing, standing by itself, would not be sufficiently distinct. But
the warrant recites that the letter had been adjudged to be a
libellous and scandalous paper, reflecting on the just rights and
privileges of the House of Commons; and the meaning there
must be, arraigning the just rights and privileges of the House*

I, myself, while I presided in the Court of Chancery, com-
mitted for contempt, in a case in which a pamphlet was sent to
me, the object of which was, by partial representation, and by

22& CASES IN THE SUPREME COURT

1821. their decisions upon the subject cannot be question-
ed in any other Court or place.

3. As to the form of the warrant, it is unnecessary
to describe the offence particularly in the warrant,
except for the purpose of letting the party see whe-
ther it is bailable or not.a But this was only a war-
rant to arrest the plaintiff, and bring him before the
House ; a preliminary proceeding absolutely neces-
sary to exercise any sort of jurisdiction over the
matter.

March %l Mr. Justice Johnson delivered the opinion of the
Court Notwithstanding the range which has been
taken by the plaintiff's counsel, in the discussion of
this cause, the merits of it really lie in a very limited
compass. The pleadings have narrowed them down
to the simple inquiry, whether the House of Repre-
sentatives can take cognisance of contempts com-

flattering the Judge, to procure a different species of judgment
from that which would be administered in the ordinary coarse
of justice. I might be wrong, but I do not think I was. The
House of Commons, whether a Court or not, must, like every
other tribunal, have the power to protect itself from obstruc-
tion and insult, and to maintain its dignity and character. If
the dignity of the law is not sustained, its sun is set, never to be
lighted up again. So much I thought it necessary to say, feel-
ing strongly for the dignity of the law ; and have only to add,
that I fully concur in the opinion delivered by the judges.

The counsel were called in, and informed that the House did
not think it necessary to hear counsel for the defendants. And
then, without further proceeding, the judgments of the Court
below were affirmed. 5 Dow's Pari. Rep. 165. 199.

a Cfiitty's Crim. Law, and the authorities there cited.

OF THE UNITED STATES. 225

mitted against themselves, under any circumstances ? mi.
The duress complained of was sustained under a
warrant issued to compel the party's appearance,
not for the actual infliction of punishment for an of-
fence committed. Yet it cannot be denied, that the
power to institute a prosecution must be dependent
upon the power to punish. If the House of Repre-
sentatives possessed no authority to punish for con-
tempt, the initiating process issued in the assertion of
that authority must have been illegal ; there was a
want of jurisdiction to justify it.

It is certainly true, that there is no power given by
the constitution to either House to punish for con-
tempts, except when committed by their own mem*
bers. Nor does the judicial or criminal power given
to the United States, in any part, expressly extend
to the infliction of punishment for contempt of either
House, or any one co-ordinate branch of the govern-
ment. Shall we, therefore, decide, that no such
power exists ?

It is true, that such a power, if it exists, must be
derived from implication, and the genius and spirit
of our institutions are hostile to the exercise of im-
plied powers. Had the faculties of man been com-
petent to the framing of a system of government
which would have left nothing to implication, it can-
not be doubted, that the effort would have been
made by the framers of the constitution. But what
is the fact ? There is not in the whole of that ad-
mirable instrument, a grant of powers which does
not draw after it others, not expressed, but vital to

Vol. VI. 29

326 GASES IN THE SUPREME COURT

mi, their exercise ; not substantive and independent, in-
deed, but auxiliary and subordinate.

The idea is Utopian, that government can exist
without leaving the elercise of discretion some-
where. Public security against the abuse of such
discretion must rest on responsibility, and stated ap-
peals to public approbation. Where all power is
derived from the people, and public functionaries, at
short intervals, deposite it at the feet of the people,
to be resumed again only at their will, individual
fears may be alarmed by the monsters of imagina-
tion, but individual liberty can be in little danger.

No one is so visionary as to dispute the assertion,
that the sole end and aim of all our institutions is
the safety and happiness of the citizen. But the re-
lation between the action and the end, is not always
so direct and palpable as to strike the eye of every
observer. The science of government is the most
abstruse of all sciences ; if, indeed, that can be call-
ed a science which has but few fixed principles, and
practically consists in little more than the exercise
of a sound discretion, applied to the exigencies of
the state as they arise. It is the science of experi-
ment.

But if there is one maxim which necessarily rides
over all others, in the practical application of govern-
ment, it is, that the public functionaries must be left
at liberty to exercise the powers which the people
have intrusted to them. The interests and dignity
of those who created them, require the exertion of
the powers indispensable to the attainment of the
ends of their creation. Nor is a casual conflict with

OP THE UNITED STATES. 22?

the rights of particular individuals any reason to be iouu
urged against the exercise of such powers. The
wretch beneath the gallows may repine at the fate
which awaits him, and yet it is no less certain, that
the laws under which he suffers were made for his
security. The unreasonable murmurs of individuals
against the restraints of society, have a direct ten-
dency to produce that worst of all despotisms, which
makes every individual the tyrant over his neigh-
bour's rights.

That " the safety of the people is the supreme
law," not only comports with, but is indispensable
to, the exercise of those powers in their public func-
tionaries, without which that safety cannot be guard-
ed. On this principle it is, that Courts of justice
are universally acknowledged to be vested, by their
very creation, with power to impose silence, respect,
and decorum, in their presence, and submission to
their lawful mandates, and, as a corollary to this
proposition, to preserve themselves and their officers
from the approach and insults of pollution.

It is true, that the Courts of justice of the United
States are vested, by express statute provision, with
power to fine and imprison for contempts ; but it
does not follow, from this circumstance, that they
would not have exercised that power without the aid
ef the statute, or not, in cases, if such should occur,
to which such statute provision may not extend ; on
the contrary, it is a legislative assertion of this right,
as incidental to a grant of judicial power, and can
only be considered either as an instance of abundant
caution, or a legislative declaration, that the power

228 ' CASES IN THE SUPREME COURT

182K of punishing for contempt shall not extend beyond
its known and acknowledged limits of fine and im*
prisonment.

But it is contended, that if this power in the
House of Representatives is to be asserted on the
plea of necessity, the ground is too broad, and the
result too indefinite ; that the executive, and every
co-ordinate, and even subordinate, branch of the
government, may resort to the same justification,
and the whole assume to themselves, in the exercise
of this power, the most tyrannical licentiousness.

This is unquestionably an evil to be guarded
against, and if the doctrine may be pushed to that
extent, it must be a bad doctrine, and is justly de-
nounced.

But what is the alternative ? The argument ob-
viously leads to the total annihilation of the power
of the House of Representatives to guard itself from
contempts, and leaves it exposed to every indignity
and interruption that rudeness, caprice, or even con-
spiracy, may meditate against it. This result is
fraught with too much absurdity not to bring into
doubt the soundness of any argument from which it
is derived. That a deliberate assembly, clothed
with the majesty of the people, and charged with
the care of all that is dear to them ; composed of the
*most distinguished citizens, selected and drawn to-
gether from every quarter of a great nation ; whose
-deliberations are required by public opinion to be
conducted under the eye of the public, and whose
decisions must be clothed with all that sanctity which

OF THE UNITED STATES.

unlimited confidence in their wisdom and purity can lttL
inspire ; that such an assembly should not possess
the power to suppress rudeness, or repel insult, is a
supposition too wild to be suggested. And, accord-
ingly, to avoid the pressure of these considerations,
it has been argued, that the right of the respective
Houses to exclude from their presence, and their
absolute control within their own walls, carry with
them the right to punish contempts committed in
their presence ; while the absolute legislative power
given to Congress within this District, enables them
to provide by law against all other insults against
which there is any necessity for providing.

It is to be observed, that so far as the issue of this
cause is implicated, this argument yields all right of
the plaintiff in error to a decision in his favour ; for,
non constat, from the pleadings, but that this warrant
issued for an offence committed in the immediate
presence of the House.

Nor is it immaterial to notice what difficulties the
negation of this right in the House of Representa-
tives draws after it, when it is considered, that the
concession of the power, if exercised within their
walls, relinquishes the great grounds of the argu-
ment, to wit : the want x>f an express grant, and the
unrestricted and undefined nature of the power here
set up. For why should the House be at liberty to
exercise an ungranted, an unlimited, and undefined
power within their walls, any more than without
them? If the analogy with individual right and
power be resorted to, it will reach no farther than to
exclusion, and it requires no exuberance of imagina-

230 CASES IN THE SUPREME COURT*

iasi. don to exhibit tbe ridiculous consequences which
might result from such a restriction, imposed upon
the conduct of a deliberative assembly.

Nor would their situation be materially relieved
by resorting to their legislative power within tbe
District. That power may, indeed, be applied to
many purposes, and was intended by the constitution
to extend to many purposes indispensable to the se-
curity and dignity of the general government ; but
they are purposes of a more grave and genera] cha-
racter than the offences which may be denominated
contempts, and which, from their very nature,
admit of no precise definition. Judicial gravity will
not admit of the illustrations which this remark
would admit of. Its correctness is easily tested by
pursuing, in imagination, a legislative attempt at de-
fining the cases to which the epithet contempt might
be reasonably applied.

But although the offence be held undefinable, it is
justly contended, that the punishment need not be
indefinite. Nor is it so.

We are not now considering the extent to which
the punishing power of Congress, by a legislative
act, may be carried. On that subject, the bounds
of their power are to be found in the provisions of
the constitution.

The present question is, what is the extent of the
punishing power which the deliberative assemblies
of the Union may assume and exercise on the prin-
ciple of self-preservation ?

Analogy, and the nature of the case, furnish the

OF THE UNITED STATES. 231

answer—" the least possible power adequate to the mi.
end proposed;" which is the power of imprisonment.
It may, at first view, and from the history of the
practice of our legislative bodies, be thought to ex-
tend no other inflictions. But every other will be
found to be mere commutation for confinement;
since commitment alone is the alternative where the
individual proves contumacious. And even to the
duration of imprisonment a period is imposed by the
nature of things, since the existence of the power
that imprisons is indispensable to its continuance ;
and although the legislative power continues perpe-
tual, the legislative body ceases to exist on the mo-
fhent of its adjournment or periodical dissolution.
It follows, that imprisonment must terminate with
that adjournment

This view of the subject necessarily sets bounds
to the exercise of a caprice which has sometimes
disgraced deliberative assemblies, when under the in-
fluence of strong passions or wicked leaders, but the
instances of which have long since remained on re-
cord only as historical facts, not as precedents for
imitation. In the present fixed and settled state of
English institutions, there is no more danger of their
being revived, probably, than in our own.

But the American legislative bodies have never
possessed, or pretended to the omnipotence which
constitutes the leading feature in the legislative as-
sembly of Great Britain, and which may have led
occasionally to the exercise of caprice, under the
specious appearance of merited resentment.

232 CASES IN THE SUPREME COURT

mi. If it be inquired, what security is there* that with

an officer avowing himself devoted to their will, the
House of Representatives will confine its punishing
power to the limits of imprisonment, and not push it
to the infliction of corporal punishment, or even
death, and exercise it in cases affecting the liberty of
speech and of the press ? the reply is to be found in
the consideration, that the constitution was formed
in and for an advanced state of society, and rests at
every point on received opinions and fixed ideas. It
is not a new creation, but a combination of existing
materials, whose properties and attributes were fami-
liarly understood, and had been determined by reite-
rated experiments. It is not, therefore, reasoning
upon things as they are, to suppose that any deli-
berative assembly, constituted under it, would ever
assert any other rights and powers than those which
had been established by long practice, and conceded
by public opinion. Melancholy, also, would be that
state of distrust which rests not a hope upon a moral
influence. The most absolute tyranny could not
subsist where men could not be trusted with power
because they might abuse it, much less a govern-
ment which has no other basis than the sound mo-
rals, moderation, and good sense of those who com-
pose it. Unreasonable jealousies not only blight the
pleasures, but dissolve the very texture of society.

But it is argued, that the inference, if any, arising
under the constitution, is against the exercise of the
powers here asserted by the House of Representa-
tives ; that the express grant of power to punish their

OP THE UNITED STATES. Jgg

taembers respectively, and to expel them, by the ap- 1821.
plication of a familiar maxim, raises an implication
against the power to punish any other than their
own members.

This argument proves too much ; for its direct ap-
plication would lead to the annihilation of almost
every power of Congress. To enforce its laws upon
any subject without the sanction of punishment is
obviously impossible. Yet there is an express grant
of power to punish in one class of cases and one only,
and all the punishing power exercised by Congress
in any cases, except those which relate to piracy and
offences against the laws of nations, is derived from
implication. Nor did the idea ever occur to any
one, that the express grant in one class of cases re-
pelled the assumption of the punishing power in any
other.

The truth is, that the exercise of the powers given
over their own members, was of such a delicate na-
ture, that a constitutional provision became necessary
to assert or communicate it. Constituted, as that
body is, of the delegates of confederated States, some
such provision was necessary to guard against their
mutual jealousy, since every proceeding against a
representative would indirectly affect the honour or
interests of the state which sent him.

In reply to the suggestion that, on this same foun-
dation of necessity, might be raised a superstructure
of implied powers in the executive, and every other
department, and even ministerial officer of the gov-
ernment, it would be sufficient to observe, that nei-
ther analogy nor precedent would support the asser-
Vol. VI. 30

2£4 CASES IN *HE SUPREME COURT

i83i. tion of such powers in any other than a legislative
or judicial body. Even corruption any where else
would not contaminate the source of political life.
In the retirement of the cabinet, it is not expected
that the executive can be approached by indignity
or insult ; nor can it ever be necessary to the exe-
cutive, or any other department, to hold a public de-
liberative assembly. These are not arguments;
they are visions which mar the enjoyment of actual
blessings, with the attack or feint of the harpies of
imagination.

As to the minor points made in this case, it is only
necessary to observe, that there is nothing on the
face of this record from which it can appear on what
evidence this warrant was issued. And we are not
to presume that the House of Representatives would
have issued it without duly establishing the feci
oharged on the individual. And, as to the distance
to which the process might reach, it is very clear
that there exists no reason for confining its operation
to the limits of the District of Columbia ; after pass-
ing those limits, we know no bounds that can be
prescribed to its range but those of the United States.
And why should it be restricted to other boundaries ?
Such are the limits of the legislating powers of that
body; and the inhabitant of Louisiana or Maine
may as probably charge them with bribery and cor-
ruption, or attempt, by letter, to induce the commis-
sion of either, as the inhabitant of any other section
of the Union. If the inconvenience be urged, the
reply is obvious : there is no difficulty in observing

OF THE UNITED STATES. $$>

that respectful deportment which will render all ap* i*ti*
prehension chimerical. r^0^^

Judgment affirmed. tiot>.

(Patzs.)

La Conception. The Spanish Consul, Claimant

Where a capture I* made of the property of the subjects of a nation ib
amity with the United States, by a vessel tmilt, armed, equipped,
and owned in the United States, such capture is illegal, and the
property, if brought within our territorial limits, will be restored to
the original owners.

Where a transfer of the capturing vessel in the ports of the bellige-
rent State, under whose flag and commission she sails on a cruiae,
is set up in order to legalize the capture, the bona fides of the sale
must be proved by the usual documentary evidence, in a satisfac-
tory manner.

Appeal from the Circuit Court of South Caro-
lina.

This was an allegation filed in the District Court
of South Carolina by the Vice Consul of his Catho-
lic Majesty, claiming restitution of the ship La Con-
ception and cargo, as the property of Spanish sub-
jects to him unknown, which had been illegally cap-
tured by the armed ship La Union, sailing under
the flag of Buenos Ayres, and pretending to have a
commission or letter of marque from that govern-
ment, but actually built, equipped, armed, ami man-
ned in the United States. A claim was interposed

236

CASES IN THE SUPREME COURT

1821.

The Concep-
tion.

by one Brown, claiming the property as having been
taken by him, as commander of La Union, on the
high seas, under a commission from the government
of Buenos Ay res, authorizing him to capture the pro-
perty of the subjects of Spain. The District and
Circuit Courts decreed restitution of the property to
the captors, no sufficient evidence being' produced of
the capturing vessel having been equipped, or hav-
ing augmented her force in the ports of the United
States. On appeal to this Court, farther proof was
taken, showing conclusively, that the capturing ves-
sel was originally built, owned, and equipped in this
country, and after proceeding to Buenos Ayres, and
Sailing from that port on a cruize, had touched at the
port of New-Orleans, and there illegally augmented
her force, since which, the capture in question was
made. This evidence was attempted to be repelled
on the/ part of the captors, by testimony tending to
show a transfer of the capturing vessel at Buenos
Ayres to domiciled subjects of that country, and that
the subsequent augmentation of her force at New-
Orleans, if any, was very trifling, and only amount-
ed to a replacement of her former equipment.

March sth. The Attorney- General, and Mr. Hopkinson, for
the appellant and claimant, the Spanish Consul, ar-
gued, that the original owners were entitled to resti-
tution, according to the uniform series of decisions in
this Court, upon the ground that the capturing ship
was built and equipped in the United States, with
the intention of cruizing against the subjects of
Spain, in violation of our neutrality, and actually be-

OP THE UNITED STATES. 237

longed to citizens of the United States, when the 1821.
present capture was made ; or had illegally aug- T^^^-
mented her force in our ports, previous to the capture/ tion.
That the pretended transfer at Buenos Ayres was
evidently colourable, and was not proved by the pro-
duction of the bill of sale, or any of the other docu-
mentary evidence usually expected by maritime
Courts, to establish a change of this species of pro-
perty. That the enlistment of additional seamen to the
crew at New-Orleans, being proved, the anus was
thrown back upon the captors, to show that the per-
sons so enlisted were subjects of Buenos Ayres, tran-
siently within the United States/

Mr. Winder^ contra, insisted, that it must be a clear
case of the violation of our neutral rights, or the
Court would not interfere to restore a capture made
under a commission from a sovereign state, and that
die anus probandi for this purpose was on the Spa-
nish claimant/ We have an unquestionable right to
build ships for sale, and to export any kind of contra-
band subject to the risk of capture: And even if a
ship be expressly built for war, it may be sold to a
belligerent, and afterwards equipped in his own ports
to cruise against his enemy/ Here the purchaser

a The Alert a, 9 Crunch, 359. The Divina Pastora, 4
Wheat. Rep. 298. The Est r el la, 4 Wheat. Rep. 298. La
Amistad de Rues, 5 Wheat Rep. 385. The Bello Corrunes,
ante, p. 152.

b The Estrella, 4 Wheat. Rep. 298.

e La Amistad de Rues, 5 Wheat. Rep. 385.

d The Alfred, 3 Dall. 387.

238

CASES IN THE SUPREME COURT

tiou.

1321. was actually domiciled at Buenos Ay res, and there
Tbett>ncep- *s n°thing to impeach the bona fides of the transac-
tion. He then sailed again from Buenos Ayres on
a cruize, and the alleged augmentation of the crew
at New-Orleans was, in effect, nothing but a replace-
ment of the original force, the vessel having lost by
desertion nearly the same number of men which she
acquired by enlistment. Such a replacement, this
Court has already determined not to afford a ground
for restitution." It is true, that the case cited was
under the French treaty of 1778. But the 19th ar-
ticle of that treaty provides nothing more than a
right of asylum and hospitality, the same as is enjoy-
ed by the South American cruizers in our ports,
under the President's instructions.

The counsel on both sides also argued on the
same grounds which are stated in the case of the
Belh CorruneSj ante^ p* 155. and which it is not
thought necessary to repeat.

Mr. Justice Story delivered the opinion of the
Court.

In this case, if the cause had stood solely upon
the evidence before the Circuit Court, we should
have no difficulty in affirming its decision. But
upon the new proofs which have been since taken,
and are now produced to this Court, it is apparent
that the capturing vessel was originally built, equip-
ped, manned, and armed in the United States for a
cruize, being owned by citizens of this country, and

a Moodie v. the Phoebe Add, 3 Doll, 319,

Of THE UNITED STATES. 239

sailed with the intent of cruizing against Spain. It mi.
is true that she went to Buenos Ayres, and sailed J^y^
under the colours of that government on a second ti<m.
cruise, during which this capture was made ; but,
there is no satisfactory evidence that the American
ownership ever ceased, or that there was a real,
bona fide sale at Buenos Ayres. If such a sale had
really taken place, it was perfectly in the power of
the captors to have proved it, in the clearest man-
ner. A bill of sale is the customary and universal
document by which the ownership of vessels is evi-
denced ; and the want of any document of this na-
ture, or of any direct and positive evidence of an ac-
tual sale, leaves no doubt in the mind of the Court,
that no such sale ever was made. The consequence
is, that the capturing vessel must still be considered,
as owned in the United States ; and, according to
the decisions which have already been made, the
capture was illegal, and the property must be res-
tored to the original Spanish owners.

Sentence reversed.

240

1821.

Williok*

Hollings*

worth.

CASES IN THE SUPREME COURT

(Common Law.)
WlLLINKS V. HOLLlNGSWORtd €t oL

H. and other*, merchants in Baltimore, consigned a vessel and carga
to W. and others, merchants in Amsterdam, with instructions to
them respecting her ulterior destination, which showed, that on the
failure of getting a freight to Batavia, Or of selling the vessel at a
price limited, she was to proceed to St Petersburg, and there take
in a return cargo of Russian goods for the United States, but with
instructions to the master committing to him the management of
the ulterior voyage. No freight to Batavia could be obtained, and
the vessel could not be sold for the price limited at Amsterdam ;
and W. and others, purchased in Amsterdam, with the concurrence
of the master, a return cargo of Russian goods, partly with the
money of H. and others, and partly with money advanced by them-
selves. On the return of the vessel to Baltimore, H. and others
objected to the purchase of this cargo in Amsterdam, as being con-
trary to express orders, and gave notice to W. and others, of their
determination to hold them responsible for all losses sustained in
consequence of this breach of instructions ; but received the goods
and sold them. W. and others brought an assumpsit against H.
and others, to recover from them the monies advanced. The decla-
tion contained the three usual money counts. Held, 1st That the
plaintiffs had a demand in law against the defendants, which could
be maintained in this form of action. 2dly. That whether the plain-
tiffs could, or could not, be made responsible in any form of action
which might be devised for the possible loss resulting from the
breaking up of the intended voyage to St Petersburgh, the defend-
ants were not entitled to a deduction from the plaintiffs' demand, for
the amount of such loss.

This was an action of assumpsit brought in the
Circuit Court of Maryland, by the plaintiffs, who
were merchants of Amsterdam, to recover from the
defendants, merchants of Baltimore, a sum of money
advanced by the plaintiffs in Amsterdam, for the

OF THE UNITED STATES. 241

cargo of the Henry Clay, a vessel belonging to the mi.
defendants, which had been consigned by them to ^£^*
the plaintiffs, with an outward cargo, and with - y-
orders respecting her ulterior destination, which worth,
showed, that on the failure of getting a freight to
Batavia, or of selling her at Amsterdam, she was to
go to St. Petersburg, and there take in a return cargo
of Russian goods for the United States. The plain-
tiffs purchased in Amsterdam, with the concurrence
of the master, a return cargo for the Henry Clay,
partly with the money of the defendants, and partly
with money advanced by themselves. On her arri-
val at Baltimore, the defendants objected to the pur-
chase of this cargo in Amsterdam, as being contrary
to express orders, and immediately gave notice to
the plaintiffs of their disapprobation of the transac-
tion, and of their determination to hold them respon-
sible for all losses sustained in consequence of this
departure from instructions. They, however, re-
ceived the cargo, and sold it*

The declaration contained three counts : the first,
for money lent and advanced to the defendants ; the
second, for money laid out and expended for their
use ; and the third, for money received by them for
the use of the plaintiffs.

On the trial of the cause in the Circuit Court, the
defendants prayed the Court to instruct the jury,
that upon the whole evidence, which is spread on
the record, "- the plaintiffs have not any demand in
law against the defendants which can be maintained
in this action ; but that, if they have, the defendants

Vol. VI. 31

34S

1891.

Willmks

Hollingi-
irorth.

CASES IN THE SUPREME COURT

are entitled to a deduction from the same, of the
amount of the loss which the jury shall find the said
defendants sustained, by reason of the alteration
aforesaid, in the destination to St. Petersburg, of the
said ship, and the loading her as aforesaid at Amster-
dam." On this motion the Judges were divided in
opinion, and the division certified to this Court.

The evidence principally consisted .of two letters,
dated the 29th of April, 1815, written by M'Kim,
one of the defendants, addressed, the one to the plain-
tiffs, the other to the master of the Henry Clay.

That to the plaintiffs was as follows :

u Gentlemen — The owners of the ship Henry
Clay having appointed me the ship's husband for
this voyage, and from the introduction of our mutual
friends, Robert Gilmor and Sons, I have been di-
rected by the owners to consign the ship to your
house, also that part of her cargo which 1 consider
belongs to her owners jointly, agreeable to the in-
voice, amounting to 1,363 dollars 40 cents.

" You will find, that the owners of the ship have
shipped tobacco on their separate accounts ; the pro-
ceeds are to be placed to the credit of John M'Kim,
jun. to remain a fund for the purpdse of loading the
ship if she should proceed to St. Petersburg. The
freight and primage, and also Captain Charles
Gantt's bills, which are now enclosed, drawn on
you for the sum of 6,560 guilders, are to constitute
part of the funds for the loading of the ship.

«« Our wish is, in the first place, if a good freight
or charter can be had for the ship to Batavia, that

OF THE UNITED STATES. 343

she should proceed there in preference to any other idsi.
place*

" And, secondly, if the ship can be sold for 8,000
pounds sterling, you will dispose of her rather than
send her to St. Petersburg."

The letter then proceeds to give such a description
of the ship as might enhance her value in the esti-
mation of a purchaser, and then adds, " If the Hen*
ry Clay proceeds to St. Petersburg, we must depend
on your placing funds there to purchase a cargo of
iron, hemp, and other goods. If the funds we have
placed in your hands should fall short of loading
her, Messrs. Gilmor and Sons have written you to
make us any advances that may be deficient. Agree-
able to the estimate, what we have ordered from St*
Petersburg, will not exceed 45,000 dollars, and you
may rest assured, that any sum advanced us will be
remitted to you as soon as we know the amount."

The letter to the master was in these words :

u Dear Sir — The ship Henry Clay is given you
in charge, that you proceed with all possible des-
patch for Amsterdam, and it is recommended that
you sail north-about at this fine season of the year*
The owners of the ship have the greatest confidence
in your good management ; that you will take care
tbat*your disbursements in every foreign port may
be as moderate as possible; that you will purchase
every article yourself on the lowest terms that may
be required for the ship; that you will use the
greatest economy in all your expenditures. After
your arrival at Amsterdam, your first object is a

1821.

Willinks

Hollings-

worth.

CASES IN THE SUPREME COURT

good charter for Batavia, and if what you know to
be a good charter is obtained, you will of course ac-
cept it in preference to any thing else.

u And if a good freight cannot be had to Batavia,
and the ship can be sold for 8,000 pounds sterling,
you have orders to sell her, and we confidently ex-
pect that she will bring more, as she cost upwards of
14,000 pounds sterling, and never made one voyage.
I hope that every exertion will be made to proceed
to St Petersburg immediately, if you do not go to
Batavia, and the ship cannot be sold ; as the season is
far advanced, no time must be lost. The same in-
dustry must be used to get away from St Peters-
burg, for fear that you might be detained there all the
winter. The owners must also depend on your at-
tention at St. Petersburg, that the hemp is good that
you receive." The letter then gives instructions
respecting pilots, protests, &c, and then adds,
" Messrs. Willinks will of course endeavour to con-
sign the ship to a friend of theirs at St. Petersburg,
but we have great confidence in a house recommend-
ed by Mr. Cumberland D. Williams, Messrs. Meyer
and Buxner, and we could wish you to consign the
ship to them. If any freight should offer from St
Petersburg to Baltimore, of course, you will accept
of it, and if any goods for Philadelphia or New-
York should be there, you can inform the skippers
how easy they may be sent," &c.

It was also proved, that no freight to Batavia could
be obtained, and that the vessel could not be sold at
the price limited.

OF THE UNITED STATES. 2AB

Mr. Harper and Mr. Winder, for the plaintiffs, ar- 182 1.
gued, (1.) That the present action could be main- ^^^
tained by the plaintiffs for the monies advanced by ▼•
theta at Amsterdam, for the purchase of the return worth.
cargo received by the defendants at Baltimore* February 22d.
Even supposing that the defendants might have
refused to receive it, yet having actually sold it,
and received the proceeds of the sale, this raises
an assumpsit to pay the money thus received.
In the case of Marietta r. Barry* foreign mer-
chants, sent by their general agent, written orders to
their factor in this country, to purchase goods here
upon their account, but to ship the goods in the
name of the factor, and by those orders the factor
was referred to the verbal communications of the ge-
neral agent, who undertook to order the goods to be
shipped in the name of another person, and declared
that he had authority from the foreign merchants
thus to control and vary their orders ; the factor was
held to be justified in obeying the new orders of the
general agent, though contrary to the first written
orders. So, here the consignment of the ship to the
plaintiffs was limited to her transactions at Amster-
dam, and the control of her ulterior movements was
left to the master. The learned counsel here entered
into a minute examination of the correspondence, to
show that this was its import.
1 2. The defendants cannot claim a deduction from
the plaintiffs' demand of the amount of the supposed
loss sustained by the alteration of the intended des-

a 3 Cranch, 415.

CASES Itf THE SUPREME CODRT

1821.

Willinki
f ,

Boilings-
worth.

tination of the vessel to St. Petersburg, and the load-
ing her at Amsterdam. This question depends not
on the English statute of set-off, but on the act of
Assembly of Maryland, of November, 1785, c. 46.
s. 7. This act provides, " That in case any suit
shall hereafter be brought on any judgment, or on
any bond, or other writing sealed by the party, and
the defendants shall have any demand or claim
against the plaintiff, upon judgment, bond, or other
instrument under seal, or upon note, agreement, as*
sumpsir, or account proved, as by this act is allowed
the defendant, or otherwise according to law, shall be
at liberty to file his account in bar, or plead discount
to the plaintiff's claim, and judgment shall be given
for the plaintiff for the sum only which remains due
after just discount made; provided the sum which
shall remain due after such discount be sufficient to
support a judgment in the court where the cause
may be tried, according to its established jurisdiction ;
and in ail cases of suits upon simple contracts, the
defendant may fde an account in bar, or plead dis-
count of any claim he may have against the plaintiffs
proved as aforesaid, or oUierwist proved according to
law, which may be of an equal or superior nature to
the plaintiff h claim, and judgment shall be given as
aforesaid^ Unliquidated damages cannot be admit*
ted by way of discount, according to the very letter
of the law, and the uniform decisions of the local
Courts of Maryland. But even the English statute
has received the same construction.0 Damages for

a Montagu m Set Off, 21. and the authorities there cited.

OP THE UNITED STATES.

24T

* breach of the implied contract of an agent are, and
necessarily must be, unliquidated. If then such da-
mages cannot be set off under the statute, neither
can they be admitted .incidentally , by way of deduc-
tion, upon the equitable principles of an action for
money had and received. It woold be an evasion of
the law to permit such an equitable deduction,
which sounds rather in tort than contract The po-
licy of the law is to prevent two distinct issues, in-
volving controverted questions, from being tried at
the same time, thus confounding the simplicity of ac-
tions and of proceedings in a Court of law.

1821.

Willinkfl

Holliog»»

worth.

Mr. Pinkney and Mr. D. B. Ogden, contra, (1.)
insisted, that the action could not be maintained by
the plaintiffs, there having been a manifest breach of
instructions on their part, not justified by the pre-
tended approbation of the master. (2.) The, de-
fendants have a right to a deduction for the loss sus-
tained by them in breaking up the intended voyage
to St. Petersburg. No part of the money, for which
the action is brought, can be said to be received to
the use of the plaintiffs, which, by the very nature
of their claim, ought in conscience to be applied to
the indemnity of the defendants against the breach
of contract which originated the plaintiffs5 demand.
The claim of the plaintiffs arises from a breach of
their duty to the defendants. That breach of duty
forced the money in question into the hands of the

Brown v. Cuming, 2 Caine? Rep. 33# and Note (a). Winchester
v. Hackley, 2 Cranch, 341.

248

CASES IN THE SUPREME COURT

1821.

WiJlinks

Hollings-

worth.

defendants. If the plaintiffs should obtain a judg-
ment for the whole of this money, it cannot be
doubted that Chancery would enjoin execution until
the extent of the injury inflicted upon the defend-
ants by the acts which produced the judgment could
be ascertained by a^Jury. And surely in this action
for money had and received, a Court of law will pro-
ceed with the same view, if the existence of the de-
fendants' right to complain is ascertainable (although
the exact quantum of the injury is not) by the same
evidence, and through the same circumstances, which
properly belong to the case of the plaintiffs. The
acknowledged nature of the action for money had
and received, will otherwise cease, and it will differ
in nothing from any other form of action. If we are
not to inquire in this action, how, and under what
circumstances money was received, in order that we
may determine whether, ex cequo et bono, the defend-
ants may retain the whole, or any part of it ; and if
nothing can prevent a recovery of the whole, but a
plea of discount, or a notice of set-off, or such other
defence as in ordinary actions may be competent, the
character given in the books of the action for money
had arid received, is a perfect delusion. The case of
Dale v. Sottetf goes the whole length of this doc-
trine. The deduction there claimed might, perhaps,
have been used as a discount or set-off under the sta-
tute ; although as the claim was not a liquidated
one, it probably could not ; but at any rate it was
not so used, and consequently, as a discount or set-

a 4 Burr. 2133.

OF THE UNITED STATES. 249

off, no advantage could be taken of it at the trial. law.
Why then was it allowed in that case ? Because of "^^
the equitable nature of the plaintiff's action, and of ▼•
the intimate connection between the claim and the worth.
defence, out of which arose the conclusion that the
defendant might retain, or stop so much of the mo-
ney, although it was in fact the plaintifPs money
which he received, and although there was no pre-
cise contract that it should be stopped out of the mo-
ney received. The right in that case to stop a rea-
sonable compensation (which the parties had not
defined) out of the whole sum which had come to
the defendant's possession, was exactly such a right
as we now insist upon. It stood, as ours does, upon
the qualities of that sort of suit which the plaintiff had
instituted, and upon the union of the claim and the de-
fence. The defence, indeed, was less complicated in
that case than it is in the present one : but so, too, was
the plaintiff's demand. And, besides, a defence is
not the less a good defence, or an examinable de-
fence, because it does not depend upon a single fact,
or does depend on many facts. A jury can deal with it,
nevertheless, and does deal with such defences every
day : and there would be a defect of justice if they did
not. The defence in this case rests, incontestibly , upon
contract, as it did in that. The deduction claimed
was in that, as in this, unliquidated in amount. The
right to the deduction arose in that, out of the whole
circumstances of the case. It does so equally in
this. The amount was, in that case, as well as in
this, part of the case itself, as respected the demand
of the plaintiff. Evidence was necessary on the
Vol. VI. 32

250

1821.

WiUiDks

Hollings-

worth.

CASES IN THE SUPREME COURT

part of the defendant, to ascertain there the quantum
of the deduction, as much as it is here. What case
could the plaintiffs in this cause have shown upon
any of the counts in their declaration without expo-
sing, or letting in an exposition, of the whole mat-
ter on which the defendants rely ? Of necessity, the
entire transaction was before the jury, and it is upon
that, as in Dale v. Sollet, that we contend for the
admissibility of a defence which the entire transac-
tion brings under the notice of the Court and jury.
And it should seem to be monstrous, that when the
whole is regularly and necessarily presented, and the
result is that the defendants ought, in conscience
and equity, to be permitted to retain an ascertainable
part of the money received by them for their own
use, they should be turned round to a cross action
against persons who appear in their writ to be foreign-
ers, and are not therefore amenable to our judica-
tures, or that (being probably remediless at law, if
they are compelled to part with the whole of the
money in their hands) they should be driven into
Chancery for an injunction upon grounds of equity,
equally available, as we are taught by the authori-
ties, in an action for money had and received.
The cross action, to which the other side refer us,
must, in truth, try the present action over again ;
and a verdict for the present defendants, in such an
action, could scarcely be reconciled with a verdict in
this cause for the whole amount of the plaintiffs'
claim. A cross action, which is to unravel the ac-
tion now sub judice^ and which upon the same cir-
cumstances is to establish that the present plaintiffs

OF THE UNITED STATES.

261

eught not to have what it is now contended tbey
ought to have, seems to be supererogation at l^ast.
When a cross action is unavoidable, the necessity
must be submitted to ; and it is unavoidable where
the matters of inquiry are not combined in their na-
ture. But, where so combined, an action for money
bad and received, opens the entire investigation, and
can do ample justice without other assistance. Indeed,
it cannot do justice at ail on such occasions without
exhausting the whole investigation. And to affect
to administer equity by shutting out one half of the
real case, (upon which the equity of the other half de-
pends,) would be a mere mockery. Cross actions
are always avoided when it is possible ; and here it
is not only possible, but absolutely required by the
facts.

1821.
Willinks

HolliDg8-
worth.

Mr. Chief Justice Marshall delivered the opi- *******
nion of the Court, and after stating the facts, pro-
ceeded as follows :

On the first branch of the question certified from
the Circuit Court, no doubt can be entertained.
The defendants having received the cargo of the
Henry Clay, and sold it, are accountable for the
proceeds, although the cargo should be considered as
the property of the plaintiffs. Whether the defend-
ants are liable for the moneys actually advanced in
Amsterdam, or for the net amount of sales in Balti-
more, considering the goods as the property of the
plaintiffs, still they are liable for something ; and, of
consequence, the action is sustainable.

262

CASES IN THE SUPREME COURT

1821.

Willinks

Hollings-

worth.

In deciding on the second branch of the instruc-
tions which were required, it becomes material to
examine the orders which were carried out by the
Henry Clay on her voyage from Baltimore to Am-
sterdam, contained in the letters of the 26th of April,
the one to the plaintiffs, the other to the master.

It is admitted, that no freight to Batavia could be
obtained, and that the vessel could not be sold at the
limited price ; consequently, the only deviation from
orders alleged by the defendants is, the purchase of
the Russian goods for the return cargo at Amster-
dam, instead of sending the Henry Clay to Su Pe-
tersburg.

That the orders of the defendants to send their
ship to St. Petersburg, in the event which had oc-
curred, were positive ; and that no authority was
given to purchase her return cargo at Amsterdam,
under any circumstances, are too apparent for con-
troversy. That this purchase, thus made without
authority, whether with, or without, the consent
and concurrence of the master, must have been made
at the risk of the plaintiffs, is also too clear for ar-
gument. But the liability of the plaintiffs for any
loss which the defendants may have sustained by the
breaking up of the voyage to St. Petersburg, depends
on the question, whether the control of that voyage
was committed to them, or to the master. In consi-
dering this question, it is proper to take into view all
the instructions which were given, and to compare
the two letters written by the defendants with each
other.

In the commencement of the letter written by

OP THE UNITED STATES. •

263

Mr. M'Kim, on the part of the defendants, he says,
" I have been directed by the owners to consign the
ship to your house, also that part of the cargo which
I consider belongs to the owners jointly."

Whether this consignment was limited to the
transactions in Amsterdam, or extended to any sub-
sequent voyage in which the Henry Clay might be
directed to engage, depends on other parts of the
letter.

Mr. M'Kim then proceeds to direct, that certain
parts of the outward cargo should " remain as a
fund for the purpose of loading the ship, if she
should proceed to St. Petersburg."

These orders are precise and explicit, with respect
to the funds which are to remain in the hands of the
plaintiffs for the purchase of the cargo in St. Peters-
burg, but are silent respecting any agency of the
plaintiffs in making that purchase.

After communicating the desire of the defendants,
that a freight should be obtained for Batavia, the
letter proceeds to say, " And secondly, if the ship
can be sold for 8,000 pounds sterling, you will dis-
pose of her rather than send her to St. Petersburg."

This part of the letter may indicate, that in some
other part of it, might be found an express order to
send the Henry Clay to St. Petersburg, if the prima-
ry objects of the defendants should be unattainable,
but does not in itself amount to such express order.
The writer does not say, u we request you, if the
vessel cannot be sold, to send her to St. Petersburg;"
but, " you will dispose of her, rather than send her
to St. Petersburg ;" as if there were seme authority

1821.

Willinks

Hollings-

worth.

254

CASES IN THE SUPREME COURT

1821.

WilllDks
V.

Holliogp-
worth.

not communicated by these words, to which they
have allusion. There is no such authority, unless it
be implied in the general consignment of the vessel.

That consignment is completely satisfied by the
agency which was to be exercised in Amsterdam.
If it was designed to extend it to the eventual voy-
age to St. Petersburg, the Messrs. Willinks would
naturally expect to find some instructions respecting
that voyage ; respecting the articles of which the
cargo was to consist, and their conduct in the pur-
chase of them. But they could find no such in-
structions. In a subsequent part of the letter, Mr.
M'Kim states the estimated value of the cargo he
had ordered, and is explicit in his request, that they
would advance the necessary funds for laying it in,
should those placed in their hands be insufficient ;
but he i? entirely silent with respect to their having
any other agency in the voyage.

It was impossible for these gentlemen to read this
letter without, at least, doubting their power to in-
terfere farther, with respect to the voyage to Sr.
Petersburg, than to advance the money which might
be required for the cargo to be purchased at that
place. The letter contains all the information, and
all the power which was necessary for this purpose,
but contains neither information nor power, for any
other purpose.

It was natural for the Messrs. Willinks to require
farther information on this subject, and to seek it
from the Blaster. He could have no motive for
withholding his letter of instructions from them, and
in that they would find, that the management of the

OP THE UNITED STATES.

255

voyage was committed to him, and that the utmost
confidence was reposed in his intelligence and integ-
rity. " I hope," says M'Kim, u that every exertion
will be made to proceed to St. Petersburg immedi-
ately, if you do not go to Batavia, and the ship can*
not be sold." These exertions were to be made by
the master ; he was to proceed immediately to St.
Petersburg ; and as no reference is here made to the
Messrs. Willinks, the fair inference seems to be, that
he was expected to proceed, not in consequence of
any orders he should receive from them, but in con-
sequence of the orders he had received from the
owners. " The same industry," he is told, a must be
used to get away from St. Petersburg." The letter
then . adds, " the owners must also depend on your
attention at St. Petersburg, that the hemp is good
that you receive."

But the part of the letter which seems to be con-
clusive on this point, is that which relates to the
consignment of the ship. " The Messrs. Willinks,"
says the writer, " will of course endeavour to con-
sign the ship to a friend of theirs at St Petersburg,
but we have great confidence in a house recommend-
ed by Mr. Cumberland D. Williams, Messrs. Meyer
and Buxner, and we wish you to consign the ship
to them."

The owners then did not suppose, that they had
empowered the plaintiffs to order the ship to St.
Petersburg. They did not suppose, that their ori-
ginal consignment of the Henry Clay to the Messrs.
Willinks, implied a control over her after the trans-
actions at Amsterdam should be terminated. Had

1821.

Willinks

Hollings-

wortb.

256 CASES IN THE SUPREME COURT

1821* such a control existed, those gentlemen would not
^[J^^ have consigned her to one of their friends. But
TT v« these words show conclusively, that the defendants
worth, themselves directed the consignment of the ship from
Amsterdam to St. Petersburg, and in executing their
orders, the master is not merely directed to proceed
without consulting the Messrs. Willinks, he is direct-
ed to disregard their advice should it be offered.

The plaintiffs could not compare this letter with
that addressed to themselves, without perceiving that,
with respect to the voyage to St. Petersburg, every
order was given directly to the master without re-
ference to them, farther than to show, that their in-
terference, with respect to the consignment of the
ship, was to be disregarded ; and that their agency
was confined to advancing the necessary funds for
the purchase of the return cargo.

Both the master and thd Messrs. Willinks appear
to have acted on this construction of their respective
powers. The correspondence between them con-
tains no indication of an opinion in either, that the
voyage to St. Petersburg depended on the orders of
those gentlemen. The master does not require their
orders, but asks their advice ; they do not attempt
to order, they only advise. This advice may have
been dictated by their best judgment, or may hare
been dictated by a view to personal interest ; still it
is mere advice, and was both given and received as
advice.

The conduct of the parties, then, is full proof of
the opinion each entertained of the authority of each ;
and the first letters written after they had met in

OF THE UNITED STATES.

267

Amsterdam, show that free communications had
taken place between them. In a letter of the 19th
of June, addressed to Captain Gantt, the Messrs.
Willinks say, " We have not received yet the pro-
mised note of the Russian goods that would be
wanted for the Henry Clay." And in the captain's
letter from the Helder, of the 18th of June, he says,
" Herewith, I annex you a copy of the order for
Russian produce, which the owners of the Henry
Clay wish to constitute her return cargo."

These letters strengthen the probability, that in
the verbal communications which were made at
Amsterdam, the captain had stated his orders rela-
tive to the voyage to St. Petersburg ; at any rate,
they show, that the note for the cargo, which had
not been transmitted to the Messrs. Willinks, had
been entrusted to him. There is an expression in
the last letter of the plaintiffs to the defendants,
which seems to have some bearing on the question,
whether the captain had communicated to them his
letter of instructions. They say, u You cannot ex-
pect, gentlemen, that we shall enter here into all the
details of this business, which has been conducted
by us, bona fide, with a view to your greatest benefit
and advantage, faithfully relying on your promises,
and considering the incomplete state of your instruc-
tions to us, that your captain was furnished with
more particular orders."

There is a vagueness in these expressions, arising,
probably, from the unskilfulness of the translation,
if they were not written in our language, which

Vol. VI. 33

1821.

Willinks

Holliags-
worth.

$5ft CASES IN THE SUPREME COURT

mi. leaves it, in some measure, uncertain, whether the
"^y plaintiffs tneant to assert, that the captaia was fur-

W till DOS * l ■ •

*' aished with more particular orders, or that they in-
wwXT ferred this fact from the incomplete state of the in-
teractions to themselves. If the case depended en*
tirfety on the question, it might, perhaps, be proper
to refer to the original ; but we do not think, that
the right of the defendants to the deduction they
claim from the demand, depends entirely on the fact,
that their orders to their captain were shown to the
plaintiffs. Their letter to the plaintiffs was at best
equivocal ; and any evidence showing that the con*
struction which the plaintiffs put on that letter, con-
formed to the intention of the defendants, will justify
the plaintiffs, although that evidence was not in their
possession pending the transaction. The defendants
cannot be permitted to say, " It is true, we did not
intend to consign the Henry Clay to you, farther
than was necessary to your agency in Amsterdam.
We did not intend to give you any control over her
voyage to St. Petersburg. We had committed that
"whole subject to our captain, and had given him
precise orders respecting it. We had even gone so
far as to direct him to disregard your consignment
of the vessel, should you endeavour to make one.
But you did not see these orders, and we will, there-
fore, make you responsible for not having understood
our letter to you, as creating a duty which we did
Hot intend it should create." This, certainly, cannot
be permitted. As little can they be permitted to
charge the Messrs. Willinks, in consequence of the

OP THE UNITED STATES.

advice they gave, with the profits which might pps-
siWy have been made on the voyage to St. Peters-
burg. Although the orders were broken with their
advice, still they were broken by the master, to
whom their execution was confided, not by the
Messrs. Willinks, to whom their execution had not
been confided.

Were it even possible, that the Messrs. Willinks
could be made responsible in any form of action
which could be devised, for the possible loss result-
ing from the breaking up of the voyage to St. Peters-
burg, they cannot, we think, be made responsible in
this. Having loaded the Henry Clay at Amsterdam,
clearly without authority, the cargo was shipped
at their risk. The defendants might have refused
it altogether. But they have sold it, and received
the money. This creates an assumpsit to pay the
money received. This action, then, so far as re-
spects the count for money received by the defendants
to the plaintiffs' use, is founded on the transactions in
Baltimore ; and, were it even possible, which we
are far from admitting, that the defendants could be
allowed to make a deduction of this supposed loss,
from the sum to be recovered on the count for money
kid out and expended to their use, provided that
count could be supported, yet they cannot be allow-
ed to make that deduction from the sum to be reco-
vered on the count for money had and received to
the use of the plaintiffs, for goods sold as die goods
of the plaintiffs.

mi.

Williok»
worth.

260 CASES IN THE SUPREME COURT

ifl2i. Certificate- This cause came on to be heard

on the transcript of the record of the Circuit Court,
for the fourth Circuit and District of Maryland, and
on the question on which the Judges of said Court
were divided, and was argued by counsel. On con-
sideration whereof, this Court is of opinion, that the
plaintiffs have a demand in law against the defend-
ants, which can be maintained in the action now de-
pending in the Circuit Court, and that the defend-
ants are not entitled to a deduction from the same
for the amount of any loss which may have been
sustained by them by reason of the alteration in the
destination of the ship Henry Clay to St. Peters-
burg, and the loading her at Amsterdam. Which
opinion is directed to be certified to the Circuit
Court*

(P&4GTICE.)

Green v. Watkins.

Id real or personal actions, at common law, the death of parties, be-
fore judgment, abates the suit ; and it requires the aid of some sta-
tutory provision, like lb at of the 31st section of the Judiciary Act
of 178?, c* 20. to enable the suit to be prosecuted by, or against the
personal representative or heir of the deceased, where the cause of
action survives.

In writs of error upon judgments already rendered, in personal actions,
if the plaintiff in error dies before assignment of errors, the writ
abates at common law \ bnt if after assignment of errors, the de-
fendant may join in error, and proceed to get the judgment affirm-

OP THE UNITED STATES. 261

ed» if not erroneous, and may then revive it against the representa- jg^l .
tires-of the plaintiff.

But a writ of error, in personal actions, does not abate by the death
of the defendant in error, whether it happen before or after errors
assigned ; and the personal representatives may not only be admit*
ted voluntarily to become parties, but a scire facia* may issue to
compel them.

By the rules of this Court, if either party, in real or personal actions,
die, pending the writ of error, his representatives in the personalty
or realty, may voluntarily become parties, or may be compelled to
become parties, in the manner prescribed by the rule.

Mr. B. Hardin, for the defendant in error, moved **** **.
to dismiss the writ of error in this case, which was
a real action, upon a suggestion of the death of the
demandant and plaintiff in error, pending the pro-
ceedings in this Court. He insisted that, at common
law, the death of either party, any time before final
judgment, would have abated the suit ;* that the ju-
diciary act of 1789, c. 20. s. 31. made no provision
for this case, since k merely extended to the case of
the death of parties, in personal actions, before judg-
ment; and that the statute 17 Car. II. c. 8. and the
act of Kentucky, showed the sense of Parliament
and the local legislature, that real actions abated by
the death of the parties, before judgment, upon writ
of error on judgments already rendered.

Mr. Justice Story delivered the opinion of the March buu
Court.

The preliminary question which has been argued
at the bar, is, whether the writ of error in this case,

a Tidd's Prac. 1024. Bac. Abr. tit. Abatement.

262

CASE8 IN THE SUPREME COURT

1821.

which is a writ of right, has abated by the death of
the demandant, who is the plaintiff in error, pending
the proceedings in this Court. There is a material
distinction between the death of parties before judg-
ment and after judgment, and while a writ of error
is depending. In the former case, all personal ac-
tions by the common law abate ; and it required the
aid of some statute, like that of the thirty-first sec-
tion of the Judiciary Act of 1789, ch. 20. to enable
the action to be prosecuted by or against the perso-
nal representative of the deceased, when the cause of
action survived. In real actions, the like principle
prevails, for a still stronger reason, for, by the death
of either party, the right descends to the heir, and a
new cause of action springs up ; and the plea is not,
therefore, in the same condition as it was in the life-
time of the party.

But, in cases of writs of error upon judgments al-
ready rendered, a different rule prevails. In personal
actions, if the plaintiff in error dies before assignment
of error, it is said that by the course of proceedings
at common law, the writ abates ; but if, after assign-
ment of errors, it is otherwise. In this latter case,
the defendant may join in error, and proceed to get
the judgment affirmed, if not erroneous ; and he may
then revive it against the representatives of the plain-
tiff. But in no case does a writ of error in personal
actions abate by the death of the defendant in error,
whether it happen before or after errors assigned. If
it happen before, and the plaintiff will not assign er-
rors, the representatives of the defendant may have a
scire facias quare executio non, in order to compel

OF THE UNITED STATES. 268

inn j if it happen after, they must proceed as if the 1821.
defendants were living, till judgment be affirmed,
and then revive by scire facias. And the plaintiff, in
order to compel the representatives of the defendant
in error , to join in error, may sue out a scire facias ad
audiendurn errores, either generally, or naming them.
Such is the doctrine of approved authorities/ It is
clear, therefore, that at common law, in these cases,
a writ of error does not necessarily abate : and that
the personal representatives may not only be admit-
ted voluntarily to become parties, but a scire facias
may issue to require them to become parties. And
such has been the practice hitherto adopted in this
Court in all personal actions, whether there has
been an assignment of errors or not ; for, a specific
assignment of errors has never been insisted on here,
as a preliminary to the argument, or decision of the
cause.

In respect to real actions, this is the first time the
question has presented itself upon a writ of error,
where the death of either party has occurred pen-
dente lite. There is no doubt that the heir or
privy in estate, who is injured by an erroneous
judgment, may prosecute a writ of error to reverse it.
And there seems no good reason why, in case of the
death of his ancestor, pending proceedings, he may
not be admitted to become a party, or be cited to be-
come a party, to pursue or defend the writ, in the
same manner as in personal actions. The death of
neither party produces any change in the condition

a 2 Tid<T$ Pr. ch. 43. Error, p. 1096.

264.

1821.

CASES IN THE SUPREME COURT

of the cause, or in the rights of the parties. It would
seetn reasonable, therefore, that the suit should pro-
ceed, and not be dismissed or abated. In the ab-
sence of all authority which binds the Court to a
different course, we are disposed to adopt this doc-
trine, and shall promulgate a general rule on the
subject

Rule accordingly/

(Constitutional Law.)

Cohens v. Virginia.

This Court has, constitutionally, appellate jurisdiction under the judi-
ciary act of 1789, c. 20. s. 25. from the final judgment or decree of
the highest Court of lair or equity of a State, having jurisdiction of
the subject matter of the suit, where is drawn in question the vahV

. dity of a treaty, or statute of, or an authority exercised under, the
United States, and the decision is against their validity ; or where is
drawn in question the validity of a statute of, or an authority exer-
cised under any State, on the ground of their being repugnant to the
constitution, treaties, or laws of the United States, and the decision
is in favour of such, their validity ; or of the constitution, or of a
treaty, or statute of, or commission held under the United States,
and the decision is against the title, right, privilege, or exemption,
specially set up or claimed, by either party, under such clause of
the constitution, treaty, statute, or commission.

It is no objection to the exercise of this appellate jurisdiction, that one
of the parties is a State, and the other a citizen of that State.

a Vide new order of Court of the present term. Ante, Rule
XXXII.

OF THE UNITED STATES. 263

The act of Congress of t h e 4th of May, 1812, enti tied , * s an act fur ther j a 2 j m

to amend the charter of the city of Washington/* which provides, **^v^^

(s. 6.) that the Corporation of the city shall be empowered, for cer- Coheos

tain purposes, and under cer lain restrictions, to authorize the draw- yw" ia
lag of lotteries, does not extend to authorize the Corporation to
force the sale of tbe tickets in auch lottery, in Stales where such
a ate may be prohibited by the State laws.

This was a writ of error to the Quarterly Session
Court for the borough of Norfolk, in the State of
Virginia, under the 26th section of the judiciary act
of 1 789? c* 20. it being the highest Court of law or
equity of that State having jurisdiction of the case.

Pleas at the Court House of Norfolk borough, before

the Mayor , Recorder, and Aldermen of the said

borough, on Saturday, the second day of September ,

one thousand eight hundred and twenty, and in

the forty- fifth year of the Commonwealth*

Be it remembered, that heretofore, to wit : At a

Quarterly Session Court, held the twenty-sixth day

of June, one thousand eight hundred and twenty,

the grand jury, duly summoned and impanelled for

the said borough of Norfolk, and sworn and charged

according to law, made a presentment in these

words :

We present P, J, and M. J. Cohen, for vending Presentment
and selling two halves and four quarter lottery tick-
ets of the National Lottery, to be drawn at Washing-
ton, to William H. Jennings, at their office at the
corner of Maxwell's wharf, contrary to the act thus
made and provided in that case, since January, 1820.
On the information of William H. Jennings.
Vol. VI. 34

066

CASES IN THE SUPREME COURT

1831.

Whereupon the regular process of law was award-
ed against the said defendants, to answer the said -
presentment, returnable to the next succeeding term,
which w»as duly returned by the Sergeant of the bo-
rough of Norfolk—" Executed."

And at another Quarterly Session Court, held for
the said borough of Norfolk, the twenty-ninth day
of August, one thousand eight hundred and twenty,
came, as well the attorney prosecuting for the Com-
monwealth, in this Court, as the defendants, by their
attorney, and on the motion of the said attorney,
leave is given by the Court to file an information
against the defendants on the presentment aforesaid,
which was accordingly filed, and is in these words :
information. Norfolk borough, to wit : Be it remembered, that
James Nimmo, attorney for the Commonwealth of
Virginia, in the Court of the said borough of Nor-
folk, cometh into Court, in his proper person, and
with leave of the Court, giveth the said Court to
understand and be informed, that by an act of the
General Assembly of the said Commonwealth of
Virginia, entitled, " An act to reduce into one, the
several acts, and parts of acts, to prevent unlawful
gaming.9' It is, among other things, enacted and de-
clared, that no person or persons shall buy, or sell,
within the said Commonwealth, any lottery, or part
or share of a lottery ticket, except in such lottery
or lotteries as may be authorized by the laws thereof:
and the said James Nimmo, as attorney aforesaid,
further giveth the Court to understand and be in-
formed, that P. J. and M. J. Cohen, traders and
partners, late of the parish of Elizabeth River, and

EOF THE UNITED STATES. 267

borough of Norfolk aforesaid, being evil disposed U2u
persons, and totally regardless of the laws and sta-
tutes of the said Commonwealth, since the first day
of January, in the year of our Lord one thousand
eight hundred and twenty, that is to say, on the first
day of June, in that year, and within the said Com-
monwealth of Virginia, to wit, at the parish of Eli-
zabeth River, in the said borough of Norfolk, and
within the jurisdiction of this Court! did then and
there unlawfully vend, sell, and deliver to a certain
William H- Jennings, two half lottery tickets, and
four quarter lottery tickets, of the National Lottery,
to be drawn in the City of Washington, that being
a lottery not authorized by the laws of this Com-
monwealth, to the evil example of all other persons,
in the like case offending, and against the form of
the act of the General Assembly, in that case made
and provided.

James Nimmo, for the Commonwealth.

And at this same Quarterly Session Court, con-
tinued by adjournment, and held for the said bo-
rough of Norfolk, the second day of September,
eighteen hundred and twenty, came, as well the at-
torney prosecuting for the Commonwealth, in this
Court, as the defendants, by their attorney, and the
said defendants, for plea, say, that they are not m cmy
guilty in manner and forms as in the information
against them is alleged, and of this they put them-
selves upon the country, and the attorney for the
Commonwealth doth the same ; whereupon a case

268 CASES IN THE SUPREME COURT

i8t i. was agreed by them to be argued in lieu of a special
^'fy**' verdict, and is in these words :

Cohens '

Virginia. Commonwealth against Cohens — case agreed.

Cue agreed. In this case, the following statement is admitted
and agreed by the parties in lieu of a special verdict ;
that the defendants, on the first day of June, in the
year of our Lord eighteen hundred and twenty,
within the borough of Norfolk, in the Common-
wealth of Virginia, sold to William H. Jennings a
lottery ticket, in the lottery called, and denominated,
the National Lottery, to be drawn in the City of
Washington, within the District of Columbia.
, That the General Assembly of the State of Vir-
ginia enacted a statute, or act of Assembly, which
went into operation on the first day of January, in
the year of our Lord 1820, and which is still unre-
pealed, in the words following.

Prohibition of No person, in order to raise money for himself or

Lotteries, Ac. * 7 J

another, shall, publicly or privately, put up a lottery
to be drawn or adventured for, or any prize or thing
to be raffled or played for : And whosoever shall offend
herein, shall forfeit the whole sum of money pro-
posed to be raised by such lottery, raffling or play-
ing, to be recovered by action of debt, in the name
of any one who shall sue for the same, or by indict-
ment or information in the name of the common-
wealth, in either case, for the use and benefit of the
literary fund. Nor shall any person or persons buy,
or sell, within this Commonwealth, any lottery tick-
et, or part or share of a lottery ticket, except in such
lottery or lotteries as may be authorized by the laws

OF THE UNITED STATES. 269

thereof; and any person or persons offending herein, mi.
shall forfeit and pay, for every such offence, the sum
of one hundred dollars, to be recovered and appro-
priated in manner last aforesaid.

That the Congress of the United States enacted a
statute on the third day of May, in the year of our
Lord 1802, entitled, An Act, &c. in the words and
figures following :

An Act to incorporate the inhabitants of the City of
Washington, in the District of Columbia.

Be it enacted by the Senate and House of Repre- Washington iQ-
sentatives of the United States of America, in Con- corpoim
gress assembled, That the inhabitants of the City of
Washington be constituted a body politic and corpo-
rate, by the name of a Mayor and Council of the City
of Washington, and by their corporate name, may
sue and be sued, implead and be impleaded, grant,
receive, and do all other acts as natural persons, and
may purchase and hold real, personal and mixed pro-
perty, or dispose of the same for the benefit of the
said city ; and may have and use a city seal, which
may be altered at pleasure. The City of Washing-
ton shall be divided into three divisions or wards, as
now divided by the Levy Court for the county, for the
purposes of assessment ; but the number may be in-
creased hereafter, as in the wisdom of the City Coun-
cil shall seem most conducive to the general interest
and convenience.

Sec. °L And be it further enacted, That the Coun- py coundi-r

' how composed.

cil of the City of Washington shall consist of twelve

270 CASES IN THE SUPREME COURT

i8si. members, residents of the city, and upwards of twen-
ty-five years of age, to be divided into two cham-
bers ; the first chamber to consist of seven mem-
bers, and the second chamber of five members ; the
second chamber to be chosen from the whole num-
ber of councillors, elected by their joint ballot. The
City Council to be elected annually by ballot, in a
general ticket, by the free white male inhabitants of
full age, who have resided twelve months in the city,
and paid taxes therein the year preceding the elec-
tions being held : the justices of the county of Wash*
ingtoo, resident in the city, or any three of them, to
preside as judges of election, with such associates as
the council m&y from time to time appoint.
E,ecK°7IwheD §ec- 3. And be it further enacted, That the first

held. 7

election of members of the City Council, shall be
held on the first Monday in June next, and in every
year afterwards, at such place in each ward as the
judges of the election may prescribe.
■SSJJT Sec. 4. And be it further enacted, That the polls
shall be kept open from eight o'clock in the morning,
till seven o'clock in the evening, and no longer, for
the reception of ballots. On the closing of the poll,
the judges shall close and seal their ballot boxes, and
meet on the day following, in the presence of the
Marshal of the District, on the first election, and the
council afterwards, when the seals shall be broken,
and the votes counted : within three days after such
election, they shall give notice to the persons having
the greatest number of legal votes, that they are duly
elected, and shall make their return to the Mayor of
the city.

OP THE UNITED STATES. 271

Sec. 5. And be it further enacted, That the mi.
Major of the city shall be appointed annually by the *^£^
President of the United States ; he must be a citizen . ▼- .
of the United States, and a resident of the city prior M*j^tf th*
to his appointment. JSoiJdX.1*"

Sec. 6. And be it further enacted, That the City citycoonc^ita

7 J sessions, Ac.

Council shall hold their sessions in the City Hall, or
until such building is erected, in such place as the
Mayor may provide for that purpose, on the second
Monday in June, in each year ; but the Mayor may
convene them oftener, if the public good require
their deliberations ; three fourths of the members of
each Council, may be a quorum to do business, but
a smaller number may adjourn from day to day :
they may compel the attendance of absent members
in such manner, and under such penalties, as they
may, by ordinance, provide : they shall appoint their
respective Presidents, who shall preside during their
sessions, and shall vote on all questions where there
is an equal division : they shall settle their rules of
proceedings, appoint their own officers, regulate
their respective fees, and remove them at pleasure :
they shall judge of the elections, returns, and qualifi-
cations of their own members, and may, with the con-
currence of three-fourths of the whole, expel any
member for disorderly behaviour, or malconduct in
office, but not a second time for the same offence :
they shall keep a journal of their proceedings, and
enter the yeas and nays on any question, resolve or
ordinance, at the request of any member, and their
deliberations shall be public. The Mayor shall ap-
point to all offices under the Corporation. AH ordi-

272 CASES IN THE SUPREME COURT

i82i. nances or acts passed by the City Council, shall be
sent to the Mayor for his approbation, and when ap-
proved by him, shall then be obligatory as such. But,
if the said Mayor shall not approve of such ordi-
nance or act, he shall return the same within five
days, with his reasons in writing therefor ; and if
three-fourths of both branches of the City Council,
on reconsideration thereof, approve of the same, it
shall be in force in like manner as if he had approved
it, unless the City Council, by their adjournment,
prevent its return.
Power, of the Sec. 7. And be it further enacted, That the Cor-

CorporatiOQ 7

prescribed. po ration aforesaid shall have full power and authority
to pass all by-laws and ordinances to prevent and
remove nuisances ; to prevent the introduction of
contagious diseases within the City ; to establish
night watches or patroles, and erect lamps ; to regu-
late the stationing, anchorage, and mooring of ves-
sels ; to provide for licensing and regulating auc-
tions, retailers of liquors, hackney carriages, waggons,
carts and drays, and pawn-brokers within the city ;
to restrain or prohibit gambling, and to provide for
licensing, regulating, or restraining theatrical or
other public amusements within the City ; to regu-
late and establish markets ; to erect and repair
bridges; to keep in repair allnecessary streets, ave-
nues, drains and sewers, and to pass regulations ne-
cessary for the preservation of the same, agreeably
to the plan of the said City ; to provide for the safe
keeping of the standard of weights and measures
fixed by Congress, and for the regulation of all
weights and measures used in the City ; to provide

OF THE UNITED STATES. 273

for the licensing aud regulating the sweeping of i82t.
chimneys, and fixing the rates thereof ; to establish
and regulate fire wards and fire companies ; to regu-
late and establish the size of bricks that are to be
made and used in the City ■ to sink wells, and erect
and repair pumps in the streets ; to impose and ap-
propriate fines, penalties and forfeitures for breach
of their ordinances; to lay and collect taxes; to
enact by-laws for the prevention and extinguishment
of fires : aud to pass all ordinances necessary to
give effect and operation to all the powers vested in
the Corporation of the City of Washington : Provi-
ded, That the by-laws, or ordinances of the said
Corporation, shall be in no wise obligatory upon the
persons of non-residents of the said City, unless in
cases of intentional violation of the by-laws or ordi-
nances previously promulgated. All the fines, pe-
nalties and forfeitures imposed by the Corporation
of the City of Washington, if not exceeding twenty
dollars, shall be recovered before a single magistrate,
as small debts are by law recoverable ; and if such
fines, penalties and forfeitures, exceed the sum of
twenty dollars, the same shall be recovered by action
of debt, in the District Court of Columbia, for the
County of Washington, in the name of the Corpo-
ration, and for the use of the City of Washington-
Sec. 8. And be it further enacted, That the per* TarahotrMi*
son or persons appointed to collect any tax imposed
in virtue of the powers granted by this Act, shall have
authority to collect the same, by distress and sale of
the goods and chattels of the person chargeable
therewith ; no sale shall be made> unless ten days
Vol. VI. 35

274 CASES lN THE SUPREME COURT

mi. previous notice thereof be given : no law shall be
passed by the City Council subjecting vacant or un-
improved city lots, or parts of lots, to be sold for
, taxes.

comcii topm- Sec. 9. And be it further enacted, That the City
vu*r, ^for the £oj|ncj| shall provide for the support of the poor, in-
firm and diseased of the City.
Bate of tax. Sec. 10. Provided always, and be it further enact-

ed, That no tax shall be imposed by the City Coun-
cil on real property in the said City, at any higher
rate than three quarters of one per centum, on the
assessment valuation of such property*

Sec. 11. And be it further enacted, That this Act
shall be in force for two years from the passing
thereof, and from thence to the end of the next ses- .
sion of Congress thereafter, and no longer.

And another act, on the 23d day of February,
1804, entitled " An Act supplementary to an Act,
entitled, an Act to incorporate the inhabitants of the
. City of Washington, in the District of Columbia."
. " Be it enacted by the Senate and House of Repre-
sentatives of the United States of America, in Con-
gress assembled, That the Act, entitled, an Act to in-
corporate the inhabitants of the City of Washington,
in the District of Columbia, except so much of the
same as is consistent with the provisions of this Act,
be, and the same is hereby continued in force, for
and during the term of fifteen years from the end of
the next session of Congress.

Sec 2. And be it further enacted, That the Coun-
cil of the City of Washington, from and after the

OF THE UNITED STATES. 275

period for which the members of the present Coun- 1821.
cilhave been elected, shall consist of two chambers,
each of which shall be composed of nine members,
to be chosen by distinct ballots, according to the
directions of the Act to which this is a supplement ;
a majority of each chamber shall constitute a quo-
rum to do business. In case vacancies shall occur
in the Council, the chamber in which the same may
happen, shall supply the same by an election by bal-
lot, from the three persons next highest on the list to
those elected at the preceding election, and a majo-
rity of the whole number of the chamber in which
such vacancy may happen, shall be necessary to
make an election-
Sec. 3. And be it further enacted, That the
Council shall have power to establish and regulate
the inspection of flour, tobacco, and salted provi-
sions, the gauging of casks and liquors, the storage
of gunpowder, and all naval and military stores, not
the property of the United States, to regulate the
weight and quality of bread, to tax and license haw-
kers and peddlers, to restrain or prohibit tippling
houses, lotteries, and all kinds of gaming, to super-
intend the health of the City, to preserve the naviga-
tion of the Potomac and Anacostia rivers adjoining the
City, to erect, repair, and regulate public wharves,
and to deepen docks and basins, to provide for the
establishment and superintendence of public schools,
to license and regulate, exclusively, hackney coaches,
ordinary keepers, retailers and ferries, to provide for
the appointment of inspectors, constables, and such
other officers as may be necessary to execute the

276 CASES IN THE SUPRfcME COURT

1321. laws of the Corporation, and to give such compensa-
tion to the Mayor of the City as they may deem fit.

Sec 4. And be it further enacted, That the Levy
Court of the county of Washington shall not here-
after possess the power of imposing any tax on the
inhabitants of the City of Washington."

That the Congress of the United States, on the

4th day of May, in the year of our Lord 1812>

enacted another statute, entitled, An Act further to

amend the Charter of the City of Washington.

oorpormtiai of « Be it enacted by the Senate and House of Re*

the Pity, how J .

composed. presentatives of the United States of America*
in Congress assembled, That from and after
the first Monday in June next, the Corporation
of the City of Washington shall be composed of
a Mayor, a Board of Aldermen, and. a Board of
Common Council, to be elected by ballot, as here*
after directed ; the Board of Aldermen shall con-
sist of eight members, to be elected for two years,
two to be residents of, and chosen from, each ward,
by the qualified voters therein ; and the Board of
Common Council shall consist of twelve members,
to be elected for one year, three to be residents of,
and chosen from, each ward, in manner aforesaid ;
and each board shall meet at the Council Chamber
on the second Monday in June next, (for the des-
patch of business,) at ten o'clock in the morning,
and on the same day, and at the same hour, annual-
ly, thereafter. A majority of each board shall be
necessary to form a quorum to do business, but a
less number may adjourn from day to day. The
Board of Aldermen, immediately after they shall

OF THE UNITED STATES, 277

have assembled in consequence of the first election, issi,
shall divide themselves by lot into two classes ; the
seats of the first class shall be vacated at the expira-
tion of one year, and the seats of the second class
shall be vacated at the expiration of two years, so
that one half may be chosen every year. Each
board shall appoint its own President from among
its own members, who shall preside during the ses-
sions of the board, and shall have a casting vote on
all questions where there is an equal division; pro- Pn*iio.
yided such equality shall not have been occasioned
by his previous vote-

Sec. % And be it further enacted, That no per- Q«Jifi*»tiaM

r of the elected,

son shall be eligible to a seat in the Board of Alder-
men or Board of Common Council, unless he shall
be more than twenty-five years of age, a free white
male citizen of the United States, and shall have
been a resident of the City of Washington one whole
year next preceding the day of the election ; and
shall, at the time of his election, be a resident of the
ward for which he shall be elected, and possessed of
a freehold estate in the said City of Washington, and
shall have been assessed two months preceding the
day of election, And every free white male citizen Andefccton.
of lawful age, who shall have resided in the City of
Washington for the space of one year next preced-
ing the day of election, and shall be a resident of the
ward in which he shall offer to vote, and who shall
have been assessed on the books of the Corporation,
not less than two months prior to the day of election,
shall be qualified to vote for members to serve in the
said Board of Aldermen and Board of Common

Present Mayor

278 CASES IN THE SUPREME COURT

i82i. Council, and no other person whatever shall exercise
the right of suffrage at such election.

Sec. 3. And be it further enacted, That the pre-
sent Mayor of the City of Washington shall be, and

SSfi^&T"* continue such, until the second Monday in June
next, on which day, and on the second Monday in
June annually thereafter, the Mayor of the said City
shall be elected by ballot of the Board of Aldermen
and Board of Common Council, in joint meeting,
and a majority of the votes of all the members of
both boards shall be necessary to a choice ; and if
there should be an equality of votes between two
persons after the third ballot, the two houses shall
determine by lot. He shall, before he enters upon
the duties of his office, take an oath or affirmation
in the presence of both boards, " lawfully to execute
the duties of his office to the best of his skill and
judgment, without favour or partiality." He shall,

Mis dude*, &c. €X officio, have, and exercise all the powers, autho-
rity, and jurisdiction of a Justice of the Peace, for
the County of Washington, within the said county.
He shall nominate, and with the consent of a ma-
jority of the members of the Board of Aldermen,
appoint to all offices under the Corporation, (except
the commissioners of elections,) and every such offi-
cer shall be removed from office on the concurrent
remonstrance of a majority of the two boards. He
shall see that the laws of the 'Corporation be duly
executed, and shall report the negligence or miscon-
duct of any officer to the two boards. He shall ap-
point proper persons to fill up all vacancies during
the recess of the Board of Aldermen, to hold such

OF THE UNITED STATES. 279

appointment until the end of the then ensuing ses- mi.
sion. He shall have power to convene the two
Boards, when, in his opinion, the good of the com-
munity may require it, and he shall lay before them,
from time to time, in writing, such alterations in the
Jaws of the Corporation as he shall deem necessary
and proper, and shall receive for his services annu-
ally, a just and reasonable compensation, to be al-
lowed and fixed by the two boards, which shall nei-
ther be increased or diminished during the period
for which he shall have been elected. Any person QpfHfcatim

i ii i i« •■ i t /v * m* i . i. of Mayor, *c.

shall be eligible to the office of Mayor, who is a free
white male citizen of the United States, who shall
have attained to the agq of thirty years, and who
shall be a bona fide owner of a freehold estate in the
said City, and shall have been a resident in the said
City two years immediately preceding his election,
and no other person shall be eligible to the said of-
fice. In case of the refusal of any person to accept
the office of Mayor, upon his election thereto, or of
his death, resignation, inability or removal from the
City, the said two boards shall elect another in his
place, to serve the remainder of the year.

Sec. 4. And be it further enacted, That the first Times ami
election for members of the Board of Aldermen, and *«»•>&>.
Board of Common Council, shall be held on the first
Monday in June next, and on the first Monday
in June annually thereafter. The first election
to be held by three commissioners to be appoint-
ed in each ward by the Mayor of the City, and at
such place in each ward as he may direct ; and all
subsequent elections shall be held by a like number

280 CASES IN THE SUPREME COURT

i8*i. of Commissioners, to be appointed in each ward by
the two boards, in joint meeting, which several ap-
pointments, except the first, shall be at least ten days
previous to the day of each election. And it shall
be the duty of the Mayor for the first election, and of
the' commissioners for all subsequent elections, to
give at least five days public notice of the place in
each ward where such elections are to be held. The
said commissioners shall, before they receive any
ballot, severally take the following oath or affirma-
tion, to be administered by the Mayor of the City, or
any Justice of the Peace for the county of Washing-
ton : " I, A. B. do solemnly swear or affirm, (as the
case may be) that I will truly and faithfully receive,
and return the votes of such persons as are by law
entitled to vote for members of the Board of Alder-
men, and Board of Common Council, in ward No. — ,
according to the best of my judgment and under-
standing, and that I will not, knowingly, receive or
return the vote of any person who is not legally enti-
. tied to the same, so help me God." The polls shall
be opened at ten o'clock in the morning, and be clo-
sed at seven o'clock in the evening, of the same day.
Immediately on closing the polls, the commissioners
of each ward, or a majority of them, shall count the
ballots, and make out under their hands and seals a
correct return of the two persons for the first elec-
tion, and of the one person for all subsequent elec-
tions, having the greatest number of legal votes, to-
gether with the number of votes given to each, as
members of the Board of Aldermen : and of the
three persons having the greatest number of legal

OF THE UNITED STATES. 281

votes, together with the. number of votes given to mi.
each, as Members of the Board of Common Coun-
• cil. And the two persons at the first election, and
the one person at all subsequent elections, having
the greatest number of legal votes for the Board of
Aldermen ; and the three persons having the great-
est number of legal votes for the Board of Common
Council, shall be duly elected ; and in all cases of an
equality of votes, the commissioners shall decide by
lot. The said returns shall be delivered to the Mayor
of the City, on the succeeding day, who shall cause
the same to be published in some news- paper printed
in the city of Washington. A duplicate return, to-
gether with a list of the persons who voted at such
election, shall also be made by the said commission-
ers, to the Register of the City, on the day succeed-
ing the election, who shall preserve and record the
same, and shall, within two days thereafter, notify
the several persons so returned, of their election ;
and each board shall judge of the legality of the
elections, returns and qualifications of its own mem-
bers, and shall supply vacancies in its own body, by
causing elections to be made to fill the same, in the
ward, and for the Board in which such vacancies
shall happen, giving at least five days notice previous
thereto ; and each Board shall have full power to
pass all rules necessary and requisite to enable itself
to come to a just decision in cases of a contested
election of its own members : and the several mem-
bers of each Board shall, before entering upon the
duties of their office, take the following oath or af-
Vol. VI. 36

28$ CASES IN THE SUPREME COURT

i82i. fiftoation : u I do swear, (or solemnly, sincerely, and
truly affirm and declare, as the case may be,) that I
will faithfully execute the office of to the

best of my knowledge and ability," which oath or af-
firmation shall be administered by the Mayor, or
some Justice of the Peace, for the county of Wash-
ington.

Sec. 5. And be it further enacted, That in
addition to the powers heretofore granted to the
Corporation of the City of Washington, by an act,
entitled, " An Act to incorporate the inhabitants
of the City of Washington,, in the District of
Columbia," and an act, entitled, "An Act, sup-
plementary to an act, entitled, an act to incorpo-
rate the inhabitants of the City of Washington,
in the District of Columbia," the said Corporation
shall have power to lay taxes on particular wards,
parts, or sections of the City, for their particular lo-
cal improvements.
A^rt<mmeni That after providing for all objects of a general
peodimre.. nature, the taxes raised on the assessible property in
each ward, shall be expended therein, and in no
other; in regulating, filling up and repairing of
streets and avenues, building of bridges, sinking of
wells, erecting pumps, and keeping them in repair ;
in conveying water in pumps, and in the preserva-
tion of springs ; in erecting and repairing wharves ;
in providing fire engines and other apparatus for the
extinction of fires, and for other local improvements
and purposes, in such manner as the said Board of
support of the Aldermen and Board of Common Council shall pro-
S^uhargir vide ; but the sums raised for the support of the poor,

OF THE UNITED STATES. 28S.

aged and infirm, shall be a charge on each ward in mi.
proportion to its population or taxation, as the two
Boards shall decide. That whenever the proprie-
tors of two thirds of the inhabited houses, fronting
on both sides of a street, or part of a street, shall by
petition to the two branches, express the desire of im-
proving the same, by laying the kirbstone of the foot
pavement, and paving the gutters or carriage way
thereof, or otherwise improving said street, agreeably
to its graduation, the said Corporation shall have
power to cause to be done at any expense, not ex-
ceeding two dollars and fifty cents per front foot, of
the lots fronting on such improved street or part of a
street, and charge the same to the owners of the lots
fronting on said street, or part of a street, in due pro-
portion ; and also on a like petition to provide for
erecting lamps for lighting any street or part of a
street, and to defray the expense thereof by a tax on
the proprietors or inhabitants of such houses, in pro-
portion to their rental or valuation, as the two Boards
shall decide.

Sec. 6. And be it further enacted, That the said jwenofti*
Corporation shall have full power and authority to
erect and establish hospitals or pest houses, work
houses, houses of correction, penitentiary, and other
public buildings for the use of the City, and to lay
and collect taxes for the defraying the expenses there-
of; to regulate party and other fences, and to deter-
mine by whom the same shall be made and kept in
repair ; to lay open streets, avenues, lanes and al-
leys, and to regulate or prohibit all inclosures thereof,
and to occupy and improve for public purposes, by

Corporation.

284 CASES IN THE SUPREME COURT

1*21; and with the consent of the President of the United

States, any part of the public and open spaces or
v. sqnare#in said city, not interfering with any pri-
*«*""». ^^^ rights ; to regulate the measurement of, and
weight, by which all articles brought into the city
for sale shall be disposed of; to provide for the ap-
pointment of appraisers, and measurers of builders'
work and materials, and also of wood, coal, grain
and lumber ; to restrain and prohibit thp nightly
and other disorderly meetings of slaves, free negroes
and mulattoes, and to punish such slaves by whip-
ping, not exceeding forty stripes, or by imprisonment
not exceeding six calendar months, for any one of-
fence ; and to punish sucli free, negroes and mulat-
toes for such offences, by fixed penalties, not exceed-
ing twenty dollars for any one offence ; and in case
of inability of any such free negro or mulatto to pay
and satisfy any such penalty and costs thereon, to
cause such free negro or mulatto to be confined to la-
bour for such reasonable time, not exceeding six ca-
lendar months, for any one offence, as may be deem-
ed equivalent to such penalty and costs ; to cause all
vagrants, idle or disorderly persons, all persons of
evil life or ill fame, and all such as have no visible
means of support, or are likely to become chargea-
ble to the City as paupers, or are found begging or
drunk in or about the streets, or loitering in or about
tippling houses, or who can show no reasonable
cause of business or employment in the City ; and all
suspicious persons, and all who have no fixed place
of residence, or cannot give a good account of them-
selves, all eves-droppers and night walkers, all who

OF THE UNITED STATES. 286

are guilty of open profanity, or grossly indecent Ian- mi.
guage or behaviour publicly in the streets, all public
prostitutes, and such as lead a notoriously lewd or
lascivious course of life, and all such as keep public
gaming tables, or gaming houses, to give security
for their good behaviour for a reasonable time, and to
indemnify the City against any charge for their sup-
port, and in case of their refusal or inability to give
such security, to cause them to be confined to la-
bour for a limited time, not exceeding one year at a
time, unless such security should be sooner given.
But if they shall afterwards be found again offend-
ing, such security may be again required, and for
want thereof, the like proceedings may again be had,
from time to time, as often as may be necessary ; to
prescribe the terms and conditions upon which free
negroes and mulattoes, and others who can show no
visible means of support, may reside in the City ; to
cause the avenues, streets, lanes and alleys to be
kept clean, and to appoint officers for that purpose. ,

To authorize the drawing of lotteries for effecting To author**

. i ~ i . , Lotteries, &c.

any important improvement in the City, which the
ordinary funds or revenue thereof will not accom-
plish. Provided, That the amount to be raised in Proviso.
each year, shall not exceed the sum of ten thousand
dollars : And provided also, that the object for which Proviso.
the money is intended to be raised, shall be first sub-
mitted to the President of the United States, and
shall be approved of by him. To take care of, pre-
serve and regulate the several burying grounds with-
in the City ; to provide for registering of births,
deaths and marriages ; to cause abstracts or minutes

286 CASES IN THE SUPREME COURT

18^1. of all transfers of real property, both freehold and
leasehold, to be lodged in the Registry of the City,
at stated periods ; to authorize night watches and
patroles, and the taking up and confining by them,
in the night time, of all suspected persons ; to punish
by law corporally any servant or slave guilty of a
breach of any of their by-laws or ordinances, unless
the owner or holder of such servant or slave, shall
pay the fine annexed to the offence ; and to pass all
laws which shall be deemed necessary and proper for
carrying into execution the foregoing powers, and
all other powers vested in the Corporation, or any of
its officers, either by this act, or any former act

Sec, 7. And be it further enacted, That the Mar-
shal of the District of Columbia shall receive, and
safely keep, within the jail for Washington county,
at the expense of the City, all persons committed
thereto under the sixth section of this act, until other
arrangements be made by the Corporation for the
confinement of offenders, within the provisions of the
Remedy incase said section ; and in all cases where suit shall be

t>f a return of

nutia bona, &c. brought before a Justice of the Peace, for the reco-
very of any fine or penalty arising or incurred for a
breach of any by-law or ordinance of the Corpora-
tion, upon a return of u nulla bona" to any fieri fa-
cias issued against the property of the defendant or
defendants, it shall be the duty of the Clerk of the
Circuit Court for the County of Washington, when
required, to issue a writ of capias ad satisfaciendum
against every such defendant, returnable to the next
Circuit Court for the County of Washington there-

OP THE UNITED STATES. 287

after, and which shall be proceeded on as in other mi.
writs of the like kind. n^n^w

Cohens

Sec. 8. And be it further enacted, That union- ▼.
proved lots in the City of Washington, on which two V"*101**
years taxes remain due and unpaid, or so much £{?£•* k»w
thereof as may be necessary to pay such taxes, may <****»» to-
be sold at public sale for such taxes due thereon :
Provided, that public notice be given of the time and ProrUo.
place of sale, by advertising in some newspaper print'
ed in the City of Washington, at least six months,
where the property belongs to persons residing out of
the United States ; three months where the property
belongs to persons residing in the United States,
but without the limits of the District of Colum-
bia ; and six weeks where the property belongs to
persons residing within the District of Columbia or
City of Washington ; in which notice shall be stated
the number of the lot or lots, the number of the
square or squares, the name of the person or persons
to whom the same may have been assessed, and also
the amount of taxes due thereon : And provided,
also, that the purchaser shall not be obliged to pay
at the time of such sale, more than the taxes due,
and the expenses of sale ; and that, if within two
years from the day of such sale, the proprietor or
proprietors of such lot or lots, or his or their heirs,
representatives, or agents, shall repay to sueh pur-
chaser the moneys paid for the taxes and expenses
as aforesaid, together with ten per centum per an-
num as interest thereon, or make a tender of the
same, he shall be reinstated in his original right and
title ; but if no such payment or tender be made

288 CASES 1N THE SUPREME COURT*

i82i. within two years next after the said sale, then the
purchaser shall pay the balance of the purchase mo-
ney of such tot or lots into the City Treasury, where
it shall remain subject to the order of the original pro-
prietor or proprietors, his or their heirs, or legal re-
presentatives ; and the purchaser shall receive a title
in fee simple to the said lot or lots, under the band
of the Mayor, and seal of the Corporation, which
shall be deemed good and valid in law and equity*.
style or the Sec. 9. And be it further enacted, That the said

Corpora t km. , , . * .

Corporation shall, in future, be named and styled,
u The Mayor, Aldermen, and Common Council of
the City of Washington;9' and that if there shall
have been a non-election or informality of a City
Council, on the first Monday in June last, it shall
not be taken, construed, or adjudged, in any manner,
to have operated as a dissolution of the said Corpo-
ration, or to affect any of its rights, privileges, or
laws passed previous to the second Monday in June
last, but the same are hereby declared to exist in
full force.
corporation to Sec, 10. And be it further enacted, That the Cor-

t'uuw wards to t it - . . . ,

be jocfttedffii* poration shall, from time to time, cause the several

a vitw lo dec*

N0" wards of the City to be so located, as to give, as

nearly as may be, an equal number of votes to each
ward ; and it shall be the duty of the Register of the
City, or sucli officer as the Corporation may here-
after appoint, to furnish the commissioners of election
for each ward, on the first Monday in June, annual-
ly, previous to the opening of the polls, a list of the
persons having a right to vote, agreeably to the pro-
visions of the second section of this act. ,

OF THE UNITED STATES. 889

Sec. 1 1. And be it further enacted, That so much isai.
of any former act as shall be repugnant to the pro-

Cohens

vtsioo8 of this act, be, and the same is hereby re- v.

* * Fart of a former

Which statutes are still in force and unrepealed, •etwpeiw.
That the lottery, denominated the National Lottery,
before mentioned, the ticket of which was sold by
the defendants as aforesaid, was duly created by the
said Corporation of Washington, and the drawing
thereof, and the sale of the said ticket, was duly au-
thorized by the said Corporation, for the objects and
purposes, and in the mode directed by the said statute
of the Congress of the United States. If, upon this
case, the Court shall be of opinion, that the acts of
Congress before mentioned were valid, and on the
true construction of these acts, the lottery ticket sold
by the said defendants as aforesaid, might lawfully
be sold within the State of Virginia, notwithstand-
ing the act or statute of the General Assembly of
Virginia prohibiting such sale, then judgment to be
entered for the defendants* But if the Court should
be of opinion, that the statute or act of the General
Assembly of the State of Virginia, prohibiting such
sale, is valid, notwithstanding the said acts of Con-
gress, then judgment to be entered, that the defend-
ants are guilty, and that the Commonwealth recover
against them one hundred dollars and costs.

Taylor, /or defendants.

And thereupon the matters of law arising upon the Judmentof
Mid ease agreed being argued, it seems to the Court
here, that the law is for the Commonwealth, and

Vojl. VI. 37

200 CASES IN THE SUPREME £OURT

i8ti. that the defendants are guilty in manner and form,
as in the information against them is alleged, and
they do assess their fine to one hundred dollars be-
sides the costs. Therefore, it is considered by the
Court, that the Commonwealth recover against the
said defendants, to the use of the President and Di-
rectors of the Literary Fund, one hundred dollars,
the fine by the Court aforesaid, in manner aforesaid
assessed, and the costs of this prosecution ; and the
said defendants may be taken, &c.
Motion form From which judgment the defendants, by their
counsel/ prayed an appeal to the next Superior Court
of law of Norfolk county, which was refused by the
Court, inasmuch as cases of this sort are not subject
to revision by any other Court of the Common-
est*, wealth. Commonwealth's costs, #31 50 cents.

February isui. Mr. Barbour, for the defendant in error, moved
to dismiss the writ of error in this case, and stated
three grounds upon which he should insist that the
Court had not jurisdiction: (1.) Because of the
subject matter of the controversy, without reference
to the parties. (2.) That considering the character
of one of the parties, if the Court could have juris-
diction at all, it must be original, and not appellate.
(3.) And, finally, that it can take neither original
nor appellate jurisdiction.

1. As to the first point : it is conceded by all, that
the Federal Government is one of limited powers.
This distinguishing trait equally characterises all its
departments ; it is with the judicial department only,
that the present inquiry is connected. It is in the

OF THE UNITED STATES. 291

^d section of the 3d article of the constitution, that isai.
we find an enumeration of the objects to which the
judicial power of the Union extends. That part of it
which relates to the present discussion; declares, that
** the judicial power shall extend to all cases in law
and equity, arising under this constitution^ the laws
of the United States, and treaties made, or which shall
be madey under their authority S} It is not pretended,
that anj treaty has any sort of relation to the pre-
sent case : before, then, this Court can take jurisdic-
tion, it must be shown, that this is a case arising
either under the constitution, or a law of the United
States. I shall endeavour to prove, that it does not
belong to either description. These two classes of
cases are obviously put in contradistinction to each
other ; and there will be no difficulty in showing to
the Court the difference in their character- The
constitution contains two different kinds of provi-
sions ; the one, (if I may use the expression ,) self
executed, or capable of self execution ; the other,
only executory, and requiring legislative enactment
• to give them operation ; thus, the 2d section of the
4th article, which declares, that u the citizens of
each State shall be entitled to all privileges and im-
munities of citizens in the several States;" the 10th
section of the 1st article, which prohibits any State
from making any thing but gold and silver coin, a
tender in payment of debts \ from passing any law
" impairing the obligation of contracts ;" and the
prohibition to Congress, in the 9th section, and to
the States in the 10th section of the same article, to
pass li any bill of attainder, or ex post facto law "

CASES IN THE SUPREME COURT

18JL are all examples of the self-executed provisions ef
the constitution ; by which, I mean to say, thai the
constitution, in these instances, is, per *e, operetta,
without the aid of legislation. On the contrary, tW
various provisions of the 8th section of the same ar>
tide, such, for example, " as the power to establish
an uniform system of naturalization, and uniform
laws on the subject of bankruptcy/' are executory
only; that is, without an act of legislation, they •
have no operative effect.

The cases, then, arising under the constitution, are
those which arise under its self-executed provisions }
and those arising under the laws of the United
States, are those which occur under some law, pass*
ed in virtue of the executory provisions of the con-
stitution* If this idea be correct, then this is not a
case arising under the constitution ; and it does not
correspond with the other part of the description,
that is, it does not arise under a law of the United
States. In the first place, this Court, in the case of
Hepburn v. Elzyf decided, that the District of Co-*
lumbia was not a State, within the meaning of the .
constitution, and that, therefore, a citizen of that
District could not sustain an action against a citizen
of Virginia, in the Circuit Court of that State. Now,
it would sound curiously, to call a law passed for a
District, not itself exalted to the dignity of a State, a •
law of the United States. It would seem more
strange to call a law passed by the Corporation of
Washington, for the local purposes of Washington,

« ft Cranch, 445.

OP THE UNITED STATES. 39$

9 law of the United States, and jet such is the cha- \m.

Cohens

racter of the law under which this case arises ; for
the act of Congress did not itself create the lottery, ™7
hoc authorized the Corporation of Washington to v,I*ima*
da it

As to this sub-legislation, legislative power is a
trust which cannot be transferred. Delegatus turn
potest delegare. If this can be exercised by substi-
tution, other legislative powers can also. I would
then inquire, whether in execution of the power " to
lay and collect taxes," " to declare war," &c. Con-
gress could authorize the State legislatures to do
these things. It is a misnomer, to call by the
name of a law of the United States, any act passed
for the District of Columbia, though enacted by Con*
gress, without calling in the aid of a Corporation.
It has been well observed by a former member of
this Court, that every citizen in the United States,
sustains a two-fold political character, one in relation
to the Federal, the other in relation to the State
Governments. To put the proposition in other
words, it may be stated thus : a two-fold system of
legislation pervades the United States ; the one of
which I will call Federal, the other municipal. The
first belongs by the constitution of the United States
to Congress, and consists of the powers of war, peace,
commerce, negociation, and those general powers,
which wake up our external relations, together with
a few powers of an internal kind, which require uni-
formity in their operation : the second belongs to
the States, and consists of whatever is not included
in the first, embracing particularly every thing con-

294 CASES IN THE SUPREME COURT

18&1, nected with the internal police and economy of the
several States. If this system knew no exception in
its operation, the present question would never have
arisen ; for no man would ever dream of calling a
law of Virginia or Maryland, a law of the United
States. But there are certain portions of territory
within the United States, of which the District of
Columbia is one, in which there is no State govern-
ment to act : in relation to these, Congress, by the
constitution, exercises not only federal, but mu-
nicipal legislation also: and as the whole diffi-
culty in this case has arisen out of this blending
together of two different kinds of legislative power ;
so, that difficulty will be removed by a careful at-
tention to the difference in the nature and character
of these powers, and the ' extent of their operation
respectively. Whenever a question arises, whether
a law passed by Congress is a law of the United
States, we have only to inquire whether it is consti-
tutionally passed in execution of any of the federal
powers : if it be, it is properly a law of the United
States; since the federal powers are co-extensive
with the limits of the United States ; and this,
though the particular act, may be confined to certain
persons, places or things. Thus, a law establishing
federal Courts in a particular State, is a law of the
United States ; for though its immediate operation
is upon one State, yet it is in execution of a power
co-extensive with the United States ; but if a law,
though passed by Congress, be passed in execution
of a municipal power, as a law to pave the streets of
Washington, then it cannot, in any propriety of Ian-

OP THE UNITED STATES, 295

guage, be called a law of the United States. It is an 1821.
axiom in politics, that legislative power has no ope-
ration, beyond the territorial limits under its autho-
rity. I do not now speak of the doctrine of the lex
loci ; of that comity, by which the different States of
the civilized world, receive the laws of others, as
governing in certain cases of contract, or questions of
a civil nature. I speak of the intrinsic energy of the
legislative power, its operation per se.

If this principle be true, is there any thing in this
case to impair its force ? It is admitted on all hands,
that this law was passed in virtue of the power gi-
ven by the constitution to exercise exclusive legisla-
tion, over such district, not exceeding ten miles
square, as should become the seat of the federal go-
vernment If we look into the history of the country,
the debates of the Conventions, or the declarations of
the Federalist, we shall alike arrive at the conclusion,
that this power was given in consequence of an inci-
m dent which had occurred in Philadelphia, and the
•necessity which thence seemed to result, of Con-
gress deliberating uninterrupted and unawed. The
motive, then, for granting this power, would not lead
to an extension of it ; still less will the terms4; for,
they are as restrictive as could by possibility be used.
The district shall not exceed ten miles square, and
as was argued in the Convention of Virginia, may
not exceed one mile : so far from the principle being
impaired then, it is greatly strengthened by the lan:
guage of this provision. See to what consequences we
should be led by the doctrine, that because this lot-
tery-was authorized by Congress, therefore, the tick-

296 CASE8 IN THE 8UPRfiME COURT

182H ct8 might be sold in any State, against its laws, with
impunity. The same charter authorises the Corpo-
ration of Washington to grant licenses to auctioneers
and retailers of spirituous liquors : now, upon the
doctrines contended for, what will hinder the Cor-
poration from granting licenses to persons, to vend
goods and liquors in Virginia, by a Corporation li-
cense, contrary to the laws of Virginia ? and thus,
greatly impair the revenue which the State raises
from these licenses ; as it is said, that a saleable
quality is of the essence, and constitutes the only
value of a lottery ticket, and that therefore it is not
competent to any State to abridge the value of that,
which was rightfully created by the Legislature of
the Union ? Would not the same reasoning justify
the holders of these Corporation licenses, equally to
trample upon the laws of the State ; lest, for want
of a market, their merchandise and liquors might not
be sold, and thus the value of their license diminish*
ed. These are cases, in which the revenue of a
State would be impaired, as well as the laws for thefV
protection of its morals. Such is the law of Virgi-
nia, prohibiting the use of billiard tables* If Con*
gre& should authorise licenses to be issued, by the
Corporation of Washington, for using them, and if
this law have an operation beyond the territorial
limits of the District, then has Virginia lost all power
of regulating the conduct of her own citizens*

The solution of the whole difficulty lies in this :
That though the laws of Congress, when passed in
execution of a federal power, extend over the Union,
and being laws of the United States, are a part rf

OF THE UNITED STATES. 207

the supreme law of the laad: yet, a law passed like isn.
the one in question, in execution of the power of mu-
nicipal legislation, extends only so far, as the power
under which it was passed — that is, to the boun-
daries of the District ; that, therefore, it is no law of
the United States, and consequently not a part of the
supreme law of the land. Nor is there any thing
novel in the idea of two powers residing in the same
body, at the same time, and over the same subject,
of a different kind. The idea is familiarly illustra-
ted by cases of ordinary occurrence in the judiciary.
For the same trespass, an action, or indictment, may
be brought before the same Court, and a different
judgment pronounced, as one or the other mode is
pursued. So the same Court has frequently common
law and chancery jurisdiction, and pronounces a dif-
ferent judgment in relation to the same subject, as
they are exercising the one or the other jurisdiction.
Let us look further at the consequences of calling
the laws of the District, laws of the United States.
By the sixth article of the Constitution, laws of the
United States made in pursuance of the Constitu-
tion, are declared a part of the supreme law of the
land, and the judges in every State shall be bound
thereby, any thing in the laws of their State to the
contrary notwithstanding. If, then, laws of the
District be laws of the United States, within the
meaning of the constitution, it will follow, that they
may be carried to the extent of an interference with
every department of State legislation ; and when-
ever they shall so interfere, they are to be considered
Vol. .VI. 38

298 CASES IN THE SUPREME COURT

i82i. of paramount authority. Suppose the law of Vurgi*
v^v-^' nia to declare a deed for land void against a purcha-

Coiiens

v: ser for valuable consideration, without notice, unless
Jl*ima' recorded upon the party's acknowledgment, or the
evidence of three witnesses. Suppose a law of
the District to dispense with record, or to be
satisfied with two witnesses. If one citizen should
convey to another citizen of the District, land lying
in Virginia, in conformity with the District law,
upon the principle now contended for, the party
must recover, in the teeth of the law of Virginia. It
will be admitted, that a law passed, like the one in
question, by one State, might be repelled by an*
other: it will, also, be admitted, that if Congress
had, (as some think they have a right to do, but in
which I do not concur,) established here a local le-
gislature, which had passed the law in question, its
effects might have been repelled from the States by
penal sanctions.

But if it be said, that as the dominion over the
District flows from the same source with every other
power possessed by the government of the Union,
as it is executed by the same Congress, as it was
created for the common good, and for universal pur-
poses, that it must be of equal obligation throughout
the Union in its effects, with any power known to
the constitution ; from whence it is inferred, that the
law in question can encounter no geographical im-
pediments, but that its march is through the Union:
The answer is, that the federal powers of Congress,
in their execution, encounter no geographical impe-
diments, because no limits, short of the boundaries

^^^mrmam

©P THE UNITED STATES, 299

of the Union, are prescribed to them ; but the legis- 182\.
lative power over the District, in its execution, does
encounter geographical impediments, because the
limits of the District are distinctly prescribed, as the
bound of its extent, and as an insurmountable barrier
to its further march.

It may be said, too, that this case bears no resem-
blance to that of one State repelling, hy penal sanc-
tions, the effects of the laws of another; because it
is said, one State is no party to the laws of another ;
whereas here, the law is its own law, as being re-
presented in Congress, and thereby contributing to
its passage, and capable in part of effecting its repeal.
It will be seen at once, that this principle would
prove too much, and, therefore, that it cannot be a
sound one ; for if the States are to acquiesce in this
instance, because they are represented in Congress,
and have* therefore, an agency in making and repeal-
ing laws, the same reasoning would justify Congress
in legislating beyond their delegated powers ; for
example, prescribing a general course of descents.
It is obvious, that they might contribute as much to
the passage and repeal of this law, as any other* and
yet this ground will not be attempted to be sustain-
ed. If, then, they are not bound, because of their
representation in Congress, to acquiesce in the as-
sumption of a power not granted ; they are surely as
little bound, upon that ground, to permit a power,
confined to ten miles square, to extend its opera-
tion with the limits of the United States.

If, then, the law in question is not a law of the
United States, in the seflse of that expression in the

gOO CASES IN THE SUPREME COURT

i«m. constitution, this is not a case arising under the law
of the United States, and, consequently, the juris-
diction of this Court fails as to the subject matter.

2. My second proposition is, that if this Court
could entertain jurisdiction of the case at all, it must
be original, and not appellate jurisdiction. This has
reference to the character of one of the parties in the
present contest. The constitution of the United
States, after having carved out the whole mass of
jurisdiction which it gives to the federal judiciary,
and enumerated its several objects, proceeds in the
second clause of the second section of the third arti-
cle to distribute that jurisdiction amongst the several
Courts. To the Supreme Court, it gives original
jurisdiction in two classes of cases ; to wit, '' in all
cases affecting ambassadors, other public ministers
and consuls, and those in which a State shall be a
party ;" in all the other cases to which the judicial
power of the United States extends, it gives the Su-
preme Court appellate jurisdiction. This Court, in
the case of Marbury v. Madisonf thus expresses it-
self in relation to this clause of the constitution :
u If Congress remains at liberty to give this Court
appellate jurisdiction, where the constitution has de-
clared their jurisdiction shall be original ; and ori-
ginal jurisdiction, where the constitution has decla-
red their jurisdiction shall be appellate, the distribu-
tion of jurisdiction made in the constitution, is form
without substance." Again, the Court says, u the
plain import of the words seems to be, that in one

a 1 Cranch, 174.

OF THE UNITED STATES, 301

class of cases, its jurisdiction is original, not appel- i&u,
late ; in the other, it is appellate, not original ;'* and
accordingly, in that case, which was an application
for a mandamus to the then Secretary of State, to
issue commissions to certain Justices of the Peace in
the District of Columbia, the Court, after distinctly
admitting that the parties had a right, yet refused to
grant the mandamus^ upon the ground, that it would
be an exercise of original jurisdiction ; that not be-
ing one of the cases, in which that kind of jurisdic-
tion was given them by the constitution, it was not
competent to Congress to give it.

It appears, then, from the constitution, that where
a State is a party, this Court has original jurisdic-
tion : it appears from the opinion of this Court just
quoted, that it excludes appellate jurisdiction. But a
State is a party to the present case ; it is a judgment
for a penalty inflicted for the violation of a public
law ; the prosecutiou commenced by a presentment
of a grand jury, carried on by an information filed
by the attorney for the Commonwealth, and the
judgment rendered in the name of the Common-
wealth ; and the case has come before this Court by
a writ of error, which is surely appellate jurisdiction.
If, then, when a State is a party, this Court have
original jurisdiction ; if the grant of original, exclude
appellate jurisdiction ; if, as in this case, a State be
a party ; and if the jurisdiction now claimed is clear-
ly appellate, then it follows, as an inevitable conclu-
sion, that in this case this Court cannot take jurisdic-
tion in this way, if they could take it at all.

9Q2 CASES IN THE SUPREME COURT

last. 3. My last proposition is, that considering the na*

ture of this case, and that a State is a party, the ju-
dicial power of the United States does not extend to
the case, and that, therefore, this Court cannot take
jurisdiction at all This is a criminal case, both
upon principle and authority* A crime is defined to
be, an act committed or omitted in violation of some
public law commanding or forbidding it. The of-
fence in this case is one of commission* A prosecu-
tion in the name of a State, by information, as this
has been shown to be, to inflict a punishment upon
this offence, is, therefore, a prosecution for a crime ;
in other words, a criminal case. Upon authority, too,
penal actions are called in the books criminal ac-
tions. But if it be a criminal case, it is conceded,
that the Courts of the United States cannot lake
original jurisdiction over it — inasmuch as that right
fully belongs to the Courts of the State whose laws
have been violated ; and that jurisdiction having
once rightfully attached, they have a right to proceed
to judgment: but if they have no original jurisdic-
tion, I have shown, in the discussion of the second
point, that they cannot have appellate jurisdiction,
and it consequently follows, that they cannot have
jurisdiction at all.

I will now endeavour to show, from general prin-
ciples, in connection with the fair construction of the
third ■ article of the constitution, that without re-
ference to the particular character of the case, whe-
ther as criminal or civil, the judicial power of the
United States does not extend to it, on account of
the character of one of the parties ; in other words,

Virginia.

OP THE UNITED STATES, 903

because one of the parties is a Stat*. It is an axiom mi.
in politics, that a sovereign and independent State is V^^/
not liable to the suit of any individual, nor amenable v. j^
to any judicial power, without its own consent. All
the States of this Union were sovereign and inde-
pendent, before they became parties to the federal
compact : hence, I infer, that the judicial power of
the United States would not have extended to the
States, if it had not been so extended to them, eo
nomine, upon the face of the constitution. But if it
can reach them only because it is expressly given in
relation to them, then it can only reach them to the
extent to which it is given. By the original text of
the constitution, the judicial power of the Union
was extended to the following cases, in which States
were parties ; to wit, to controversies between two
or more States, between a State and citizens of an-
other State, and between a State and foreign States,
citizens, and subjects. The case of a contest be-
tween a State and one of its own citizens, is not in-
cluded in this enumeration ; and, consequently, if
the principle which I have advanced be a sound one,
the judicial power of the United States does not ex-
tend to it ; but the uniform decision of this Court
has been, that if a party claim to be a citizen of an-
other State, it must appear upon the record. As
that does not appear upon the record in this case, I
am authorized to say, that the plaintiffs in error are
citizens of Virginia : then it is the simple case of a
contest between a State and one of its own citizens,
which does not fall within the pale of federal judicial
power,

304 CASES IN THE SUPREME COURT

1821. It is said, however, that the judicial power is de-

clared by the Constitution, to extend to all cases in
law or equity, arising under this Constitution, the
laws of the United States, and treaties made, &c ;
and that by reason of the expression " all cases,"
where the question is once mentioned in the Consti-
tution, the federal judicial power attaches .upon the
case on account of the subject matter, without refer-
ence to the parties. Notwithstanding the latitude
of this expression, it will be seen upon inquiry, that
in the nature of things, there must be some limita-
tion imposed upon this provision, which the gentle-
men seem to consider unlimited. In the first place
there are questions arising, or which might arise
under the Constitution, which the forms of the Con-
stitution do not submit to judicial cognizance. Sup-
pose, for example, a State were to grant a title of no-
bility, how could that be brought before a judicial
tribunal, so as to render any effectual judgment ? If it
were an office of profit, it might, perhaps, be said,
an information in the nature of a quo warranto would
lie ; but I ask whether that would lie, in the case
which I have stated, or whether an effectual judg-
ment could be rendered ? It is a title, a name which
would still remain, after your judgment had denoun-
ced it as unconstitutional. Where a quo warranto
lies, in relation to an office, the judgment of ouster
is followed by practical and effectual consequences.
Again ; suppose a State should keep troops or ships
of war, in time of peace, or should engage in war,
when neither actually invaded, nor in imminent dan-
ger. Here would be alarming violations of the

Virgios*.

OF THE UNITED STATES. 30ft

constitution, assailing too directly the federal pow- iMi.
ers; it would be a most serious question arising ^^^
under the constitution, and yet clearly such a case v7. j[:
as this does not belong to the judicial tribunal.

If it be said that the opposite counsel mean all
cases in their nature of a judicial character, still I
shall be able to show, that broad as this expression is,
it does not reach all these. It will be remembered
by the Court, that the words are, not all questions,
but all cases. Although, therefore, a question may
arise, yet before there can be a case, there' must be
parties over whom the Court can take jurisdiction ;
and if there be no such parties, the Court cannot
act upon the subject, though the question may arise,
though it may be clearly of a judicial nature, and
though there may foe the clearest violation of the
constitution. By the 11th article of the amend-
ments to the constitution, it is declared, that " the
judicial power of the United States shall not be con-
strued to extend to any suit in law or equity, com-
menced or prosecuted against one of the United
States, by citizens of another State, or by citizens or
subjects of any foreign State*" Now, suppose that a
State should, without the consent of Congress, lay a
duty on tonnage, which should be paid by a citizen
of another State ; suppose, too, that a State should
cause the lands of a British subject to be escheated,
contrary to the ninth article of the treaty of 1794,
upon the ground of alienage; or debts due to a Bri-
tish subject from individuals of the United States, or
money or shares belonging to him, in the public
funds or banks, to be confiscated, contrary to tfaf
Vol. VL 39

306 CASES IN THE SUPREMfe COURT

1821. tenth article of the same treaty, and deposite the pro-
ceeds in the public chest: It will be agreed on all
hands, that the first is a palpable violation of the fe-
deral constitution, and the two others as palpable
violations of the solemn stipulations of a treaty ;
and that, therefore, the first presents a question ari-
sing under the constitution, and the others one ari-
sing under a treaty ; yet, will any man contend that
the citizen of another State, in the first case, or the
subject of the foreign State, in the others, could bring
the offending State before the federal Court, for the
purpose of redressing their several wrongs ? It will
not be pretended; and why not? for the reason
which I have given, that one of the parties in the
cases supposed being a State, and the amendment
referred to having declared, that a State should not
be amenable to the suit of a citizen of another State,
or the subject of a foreign State ; although the ques-
tions have arisen, the cases have not ; that is, the
Court cannot take judicial cognizance of the ques-
tions, because it cannot bring one of the parties in-
terested in litigating it before them. Let us now
suppose, that a State should collect a tonnage duty
from one of its own citizens; could that citizen
bring his own State before a federal Court? The
words of the 11th amendment apply to the case of a
citizen of another State, or the citizen or subject of
a foreign State ; but the reason is, that it was only to
them that the privilege of being parties in a contro-
versy with a State, had heen extended in the text of
the constitution. It was only from them, therefore,
that it was necessary to take away that privilege :

OF THE UNITED STATES. 307

but, when from those to whom a privilege had been mi.
given, that privilege had been taken away, they
surely then occupy the same ground, with those to
whom it had never been given. When I speak here
of the right of these persons under the constitution
of suing a State, I speak of the interpretation of this
Court, particularly in the case of CMsholmh ex'rs. v.
Georgia, in which the Court decided, that a State
might be made a party defendant It was that deci-
sion which produced the 11th amendment If I am
right in the idea, that since that amendment, no mat-
ter what the character of the question, this. Court
could not take jurisdiction in favour of the citizen of
another State, or subject of a foreign State, against a
State as defendant, it is equally true, that without
the aid of that amendment, it never could take juris-
diction in favour of a citizen against his own State ;
because that is not one of the cases, in which the fe-
deral judicial power extends to States, and because
in this case, as in the others, although a question has
arisen under the constitution, &c. a case has not ari-
sen, inasmuch as you cannot bring one of the parties
before you. That the constitution never contem-
plated giving jurisdiction to the federal Courts in
cases between a State and its own citizens, will ap-
pear manifestly, from the only reason assigned for
giving it in favour of the citizens of other States, or
foreign citizens. That reason was an insufficient one,
even for the purpose for which it was assigned ; it
being, that as against foreigners and the citizens of
other States, State Courts might not be impartial
where their States were parties ; but such as it is, it

$tt CASES IK THE SUPREME COURT

i82i. iWtttr csbtild applj aii between a State and its own ci-
tifeeris, whom they were uiicter every moral and poli-
tical Obligation td protect, and towards whom, there-
fore, there dould be no apprehension of a want of
impartiality.

Upon a full View of this aspect of the subject, the
fair construction of the constitution will be found
to be this — that in carving but the general mass of
jurisdiction, it had reference only to the natural and
habitual parties to controversies, who are either na-
tural persons, or Corporations, short of political soci-
eties, not to States ; that in relation to these, they
could not have been made parties at all, but by ex-
press provision, and that, therefore, the extent to
which they can be so made, is limited by the extent
of that provision. It will be conceded, that the Uni-
ted States cannot be sued : and why ? Because it is
incompatible with their sovereignty. The States, be-
fore the adoption of the federal constitution, were
also sovereign ; and the same principle applies, un-
less it can be shown that they have surrendered this
attribute of sovereignty ; which I have endeavoured
to show they have not

Upon my construction, there is consistency through-
out the constitution. According to it, a State can
never be subjected, at the suit of any individual, to
any judicial tribunal, without its own consent ; fork
can never be made a party defendant in any case, or
by any party, except in the cases between it, and an-
other State, or a foreign State. If it be a party plain-
tiff, I _have already endeavoured to prove that this

OF THE UNITED STATES. 3Q&

Court could never take appellate, but only original mi*
jurisdiction, and that therefore as between a State
and any individual, that State never could be placed
in the attitude of a defendant. This idea is further
sustained by reference to the history of the country.
From that we learn, that the great and radical de-
fect in the first confederacy was, that its powers ope-
rated upon political societies or States, not upon in*
dividuals. The characteristic difference between
that and the present government is, that the latter
operates upon the citizens* Take, for example, the
power of taxation/ which addresses itself directly to
the people of the United States in the shape of an in-
dividual demand — instead of a requisition upon the
States, for their respective quotas.

It has been said, that if this doctrine prevail, the
federal government will be prostrated at the feet of
the States, and that the various limitations and pro-
hibitions imposed upon the States by the constitu-
tion, will be a dead letter, upon the face of that in-
strument, for the want of some power to enforce
them. Let it be remembered that the several State
legislatures and judiciaries, are all bound by the so-
lemn obligation of an oath, to support the federal
Constitution ; that to suppose a State legislature ca-
pable of wilfully legislating in violation of that con-
stitution, if it is to suppose that it is so lost to the
moral sense as to be guilty of perjury ; a supposition
which, thank God ! the character of your people
forbids us to make* nor can it be realized, until we
Shall have reached a maturity of corruption, from
which I trust we are separated by a long tract of fu-

310 CASES IN THE SUPREME COURT

182K ture time. But if the legislatures could be supposed
sfT?**' to be so blind to the sacred dictates of conscience

Cohens

v. and of duty, as to pass such a law, we have another
"****• safeguard in the character of the State judiciaries.
Before effect could be given to it, it must be suppo-
sed that the sanctity of the judicial ermine was also
polluted. To him, who can for a moment entertain
this unjust and injurious apprehension, I have no-
thing to say, but to ask him to lpok at the talents, the
virtues, and integrity, which adorn and illustrate
the benches of our State Courts ; and I will add,
that according to the doctrine maintained by this
Court, in the case of Hunter v. Martin,* the
judgments of the State Courts, in questions
arising under the constitution, between indivi-
duals, would be subject to the appellate juris-
diction of this Court/ But if the States are un-
der limitations by the constitution, so also is the fe-
deral government. If the State legislatures may be
supposed possibly capable of violating that instru-
ment, and the State judiciaries disposed to sustain

a 1 Wheat. Rep. 305.

b Mr. Barbour observed, in reply, that he wished to be dis-
tinctly understood, as not yielding his assent to the doctrine of
Hunter v. Martin. On the contrary, that he decidedly concur*
red with the -Court of Appeals of Virginia, that the appellate
jurisdiction of the Supreme Court was in relation to inferior
federal Courts, not State Courts. But, as that question had
been solemnly decided otherwise by this Court, with .the ar-
gument of the Court of Appeals of Virginia before' them, he
hTid forborne to discuss it ; he had referred to it, however, be*
cause, whilst this Court acted upon the principle of that case^
there was a controlling power, on the part of the federal, orer
the State judiciaries, in practical operation.

OF THE UNITED STATES. 311

them in that violation, it may as well be supposed, 1821.
that the federal legislature may be thus disposed, and
the federal judiciary prepared to sustain them.

Whenever the States shall be determined to de-
stroy the federal government, they will not find it
necessary to act, and to act in violation of the con-
stitution. They can quietly and effectually accom-
plish the purpose by not acting. Upon the State
legislatures it depends to appoint the Senators and
Presidential electors, or to provide for their election.
Let them merely not act in these particulars ; the exe-
cutive department, and part of the legislative, ceases
to exist, and the federal government thus perishes
by a sin of omission, not of commission. But 1 will
iendeavour in another way to show, that whenever
the States shall have reached that point, either of
corruption, or hostility, to the federal government,
which they must arrive at before any of the extreme
supposed violations of the constitution could occur,
the jurisdiction now claimed for this Court would
be utterly inadequate as a remedy. Let us suppose
one of the most glaring violations of the constitution ;
a bill of attainder or ex post facto law, for example,
passed by a State ; and that the State judiciary pro-
ceeds to conviction of the party prosecuted. Let us
suppose, that this Court, claiming an appellate juris-
diction, forbids the execution bf the party ; but the
State Court orders its judgment to be executed, and
k is executed, by putting to death the prisoner. His
life cannot be recalled : that is beyond the reach of
human power ; can you prosecute the judges or
(he officer for murder ? It will not be contended.

312 CASES IN THE SUPREME COURT

ism. Of what avail* then, the jurisdiction contended for,
^r** 6veh f°r the purpose f°r which it is claimed ? I an*
y. swer, of none at all

Virginia.

Mr. Smyth stated, that he should support the mo*
tion to dismiss the writ of error granted in this case,
for two causes : (I.) Because the constitution gives
no jurisdiction to the Court in the case. (2.) Be-
cause the judiciary act gives no jurisdiction to the
Court in this case.

1. It is a question undecided, whether the appel-
late jurisdiction of this Court, as declared by the con-
stitution, does or does not extend to this case: If it
was in all respects similar to the case of Hunter v.
Martin,* adjudged in this Court, I should contend,
that the constitutional question of jurisdiction should
not be regarded as settled. In that case, the counsel
conceded the constitutional question, and no argu-
ment has been offered to this Court in support of tte
jurisdiction of the State judiciary. One of the learn-
ed Judges6 of this Court said, in that case, when
speaking of the claim of power in this Court to ex-
ercise appellate jurisdiction over the State tribunals,
" this is a momentous question, and one on which I
shall reserve myself uncommitted, for each particu-
lar case as it shall occur." And the Court said, that
" in several cases, which have been formerly adjudg-
ed in this Court, the same point was argued by
counsel, and expressly overruled." But the case
now before the Court, is very different from that of

a 1 Wheat. Rep. 305. b Mr. Justice Johivsov.

OP THE UNITED STATES. 313

Martin v. Hunter. This is a writ of error to revise mi.
a judgment given in a criminal prosecution, and in a
case wherein a State was a party.

The government of the United States being one of
enumerated powers, it is not a sufficient justification
of the authority claimed, to say that there is nothing
in the constitution that prohibits the federal judiciary
to take cognizance, by way of appeal, of cases decid-
ed in the State Courts. All the powers not granted
are retained by the States; judicial power is granted ;
but it is federal judicial pow#r that is granted,
and not State judicial power. This grant neither
impairs the authority of the State Courts in suits re-
maining within their jurisdiction, nor makes them
inferior Courts of the United States. The govern-
ment of the United States operates directly upon the
people, and not at all upon the State governments,
or the several branches thereof. The State govern*
ments are not subject to this government. The peo-
ple are subject to both governments. This govern-
ment is in no jespect federal in its operation, although
it is, in some respects, federal in its organization-
Power has, indeed, been vested, by the constitution,
in the State legislatures, to pass certain laws neces-
sary to organize and continue the existence of the
general government, and this power Congress may
in part assume. They may prescribe the time, place,
and manner, of holding elections of representatives ;
the time and manner of choosing Senators by the
State legislatures ; and the time of choosing electors
of a President* This power is expressly given by

Vol* VI. 40

$14 CASES IK THE SUPREME COURT-

mi. the constitution ; it wis necessary Congress fehouM

^ITJ^V possess it, for self-preservation ; and, even in these

▼. cases, they have no power to prescribe to the State

U*1U*' legislature a legislative act This government can-
not prescribe an executive act to the executive of
a State, a legislative act to the legislature of a State,
or (as I contend) a judicial act to the judiciary of a
State.

If the constitution does not confer on the judiciary
of the United States the appellate jurisdiction claim-
ed, it is not enougfahat the act of Congress may
purport to confer it The framers of the judiciary act
manifested a distrust of their authority ; they seem
to have foreseen that the State Courts would refuse
to give judgment according to the opinions of the
Supreme Court. The case decided in the State
Court was not a case in law arising under the laws
of the United States. It was a prosecution under a
law of the State. Should a mandate issue in this
case, and obedience be refused, this Court will give
judgment on a prosecution for violating State laws.
If the case decided in the State Court be regarded as
a case in which a State was a party, the -Supreme
Court has, by the constitution, original, and not ap-
pellate jurisdiction. The appellate jurisdiction of
the Supreme Court is only conferred in cases other
than those whereof the Supreme Court has original
jurisdiction. Who has original jurisdiction of those
other cases ? The inferior federal Courts. Some
of those other cases are those of admiralty and mari-
time jurisdiction, of which, certainly, it was not in-

OF THE UNITED STATES. &]£

tended that the original jurisdiction should be in the iwi.
State Courts.

If this writ of error be considered to be a suit in
law, this Court has no jurisdiction : for it is prose*
cuted against a State ; and, by the 11th amendment
to the constitution, no suit in law can be prosecuted
by foreigners or citizens of another State against one
of the United States. The amendment prohibits
such suits commenced or prosecuted against a State.
This seems expressly to extend to this writ of error,
which, although not a suit in law commenced against
a State, is a suit in law prosecuted against a State.
This amendment, denying to foreigners and citizens
of other States the right to prosecute a suit against a
State, and being silent as to citizens of the same
State, affords a proof that the federal Courts never
had jurisdiction of a suit between a citizen and the
State whereof he is a citizen : for it cannot be pre-
sumed, that a right to prosecute a suit against a
State would be taken from a foreigner or citizen of
another State, and left to citizens of the same State.
A release of all suits is a release of a writ of error ;*
and, consequently, a writ of error is " a suit in law,"
and cannot be prosecuted against a State.

The appellate jurisdiction conferred by the consti-
tution on the Supreme Court, is merely authority to
revise the decisions of inferior Courts of the United
States. Where the Supreme Court have not ori*
ginal jurisdiction, they have, by the constitution, ap»
pellate jurisdiction as to law and fact. Could it haw

a Latch. 1 10. 2 Bacr Mr. 497. 1 Boll. Mr. 7##.

316 CASES IN TllE SUPREME COURT

1891. been intended to confer a power to re-examine deci~
sioris in the State Courts ; to try again the facts
tried in those Courts, and this even in criminal pro-
secutions ? Surely not. Appellate jurisdiction sig-
nifies judicial power over the decisions of the inferior
tribunals of the same sovereignty. Congress have
power to " constitute" such tribunals ; and it is
made their duty to " ordain and establish" such.
The framers of the constitution intended to create a
new judiciary, to exercise the judicial power of a
new government, unconnected with the judiciaries
of the several States. Congress is not authorized to
make the Supreme Court, or any other Court of a
State, an inferior Court. They do not <c constitute"
such a Court ; they do not " ordain and establish
it." The judges cannot be impeached before the
Senate of the United States ; they receive no com-
pensation for their services from the United States ;
and, consequently, cannot be required to render any
services to the United States. The inferior Courts,
spoken of in the constitution, are manifestly to be
held by federal judges. The judicial power to be
exercised, is the judicial power of the United States ;
the errors to be corrected are those of that judicial
power ; and there can be no inferior Courts exerci-
sing the judicial power of the United States, other
than those constituted, ordained, and established by
Congress.

The Supreme Court has appellate jurisdiction in
cases to which the judicial power of the United
States shall extend ; but unless the original juris-
diction has extended to the case, the appellate juris-

OP THE UNITED STATES. 317

diction can never reach it. The original jurisdiction 1821.
alone is qualified to lay hold of it. If it shall be
deemed proper to extend the judicial power to all the
cases enumerated, the original jurisdiction must be
thus extended. The Court exercising appellate ju-
risdiction, must not only have jurisdiction over such
a cause, and such parties, but it must have jurisdic-
tion over the tribunal before which the cause has
been depending. Judicial power, includes power to
decide, and power to enforce the decision. This
Court has rather disclaimed power to enforce its
mandate to the Supreme Court of a State. If you
have not power to compel State tribunals to obey
your decisions, you have no appellate jurisdiction
in cases depending before them. Suppose it should
*be found necessary to direct a new trial in a cause
removed from a State Court, and that the State
Court refuses to obey your mandate; where shall the
new trial be had ? If you have appellate jurisdiction
in a case decided by a State Court, you must have
power to make your decisions a part of the record
of the State Court. The Constitution provides that
full faith and credit shall be given in each State, to
the judicial proceedings of every other State. A
plaintiff recovers in the Courts of Virginia judg-
ment for a sum of money ; you reverse the judgment;
but, the State Court does not record your decision ;
the plaintiff obtains a copy of the record of the judi-
cial proceedings of the State, and presents them as
evidence before the Court of another State ; he
must recover, notwithstanding your judgment, which

918 CASES IN THE SUPREME COURT

lias hot been made a part of that record, to which
full faith and credit is to be given.

To give jurisdiction over the State Courts, h is
not sufficient that the constitution has said that thd
Supreme Court shall have appellate jurisdiction ;
for that will be understood to signify, jurisdiction
over inferior federal Courts. To confer the juris-
diction claimed, the constitution should have said,
that the judicial power of the United States shall
have appellate jurisdiction over the judicial power
of the several States. If it had been intended to
give appellate jurisdiction over the State Courts, the
proper expressions would have been used. There is
not a word in the constitution that goes to set up
the federal judiciary above the state judiciary. The
state judiciary is not once Mined. The subjects spo-
ken of are the judicial power 4f the United States ;
the supreme and inferior Courtsof the United States;
and the original and appellate jurisdiction of the Su-
preme Court. Appellate jurisdiction is not granted
to the judicial power of the United States. It is
granted to the Supreme Court of the United States.
Federal judicial power is authorized to correct the
errors of federal judicial power. I contend, that in
no case can the federal Courts revise the decisions of
the State Courts ; no such power is expressly given
by the constitution : and can it be believed that it
was meant that the greatest, the most consolidating
of all the powers of this Government, should pass by
an unnecessary implication ? The States have grant-
ed to the United States power to pronounce their
own judgment in certain cases ; but they have not

OF THE UNITED STATES. 31ft

granted the State Courts to the federal Government ; mi.
nor power to revise State decisions.

The power of the House of Lords to hear appeals
from the highest Court in Scotland, has been men-
tioned as a precedent for the exercise of such a
power as is claimed for this Court ; but the cases
are by no means similar : Scotland is consolidated
with England under the same executive and legis-
lature ; and, therefore, ought to be subject, in the
last resort, to the same judicial tribunal. If the
States had no executive except the President, and
no legislature except Congress, the cases would have
some resemblance.

If you correct the errors of the Courts of Virginia,
you either make them Courts of the United States,
or you make the Supreme Court of the United
States a part of the judiciary of Virginia. The*
United States can only pronounce the judgment of
the United States. Virginia alone can pronounce
the judgment of Virginia. Consequently, none but
a Virginia Court can correct the errors of a Virgi-
nia Court.

There is nothing in the constitution that indicates
a design to make the State judiciaries subordinate to
the judiciary of the United States. The argument
that Congress must establish a Supreme Court, and
might have omitted to establish inferior Courts,
thereby depriving the Supreme Court of its appellate
jurisdiction, unless it should be exercised over the
State Courts, seems to Ije without foundation. The
judicial power of the United States is vested in the
Supreme Court, and inferior Courts; the judges of

320 CASES IN THE SUPREME COURT

1821. the inferior Courts shall receive a compensation.
The possibility of Congress omitting to perform a
duty positively enjoined on them, cannot change the
constitution, or affect the jurisdiction of the State
Courts.

The federal judiciary and State judiciaries possess
concurrent power in certain cases ; but no authority
is conferred on the one to reverse the decisions of the
other. The State Courts retain a concurrent autho-
rity in cases wherein they had jurisdiction previous
to the adoption of the constitution, unless it is taken
away by the operation of that instrument. I say a
concurrent authority, not a subordinate authority.
The power of the judiciary of the United States is
either exclusive or concurrent, but not paramount
power. And where it is concurrent only, then,
•whichsoever judiciary gets possession of the case,
should proceed to final judgment, from which there
should bq no appeal. If it shall be established that
this Court has appellate jurisdiction over the State
Courts in all cases enumerated in the third article of
the constitution, a complete consolidation of the
States, so far as respects judicial power, is produced ;
and it is presumed that it was not the intention of
the people to consolidate the judicial systems of the
States, with that of the United States. It has been
said, that the Courts of the United States can revise
the proceedings of the executive and legislative au-
thorities of the States, and, if they are found to be
contrary to the constitution, may declare them to be
of no legal validity ; and that the exercise of the
same right over judicial tribunals, is not a higher or

OF THE UNITED STATES. 821*

more dangerous act of sovereign power/ This con* xasi.
elusion seems . to be erroneous* When the federal
Courts declare an act of a Stake legislature uncon-
stitutional, or an act of the State executive unlawful,
they exercise no higher authority than the State
Court£ exercise, who will not only declare an act of
the State legislature, but even an act of Congress,
unconstitutional and void. This only proves that
the federal and State judiciaries have equally autho-
rity to jugge of the validity of the acts of the other
branches of both governments, and has no tendency,
whatever to establish the claim set up by federal ju-
dicial power, of supremacy over State judicial power.
This writ of error brings up the judgment render-
ed in a State Court, in a criminal prosecution. Every
government must possess within itself, and indepen-
dently, the power to punish offerees against its
laws. It would degrade the State governments, and
devest them of every pretension to sovereignty, to
determine that they cannot punish offences without
their decisions being liable to a re-examination, both
as to law and fact, (if Congress please,) before the
Supreme Court of the United States. The claim set
up would make the States dependent for the execu-
tion of their criminal codes, upon the federal judici-
eiary. The cases " in which a State shall be a party,"
of which the Supreme Court may take cognizance,
are civil controversies. This seems obvious; be-
cause, to the Supreme Court is granted original ju-
risdiction of them- And it will not be contended

1 Wheat. Rep* 344.
Vol. VI. 4!

CASK IN THE SUPREME COURT

18*1. that the Supreme Court shall haveoriginal jurisdiction
'fy**' of prosecutions carried on by a State, against those
r. # who violate its laws, If" cases in law and equity, ari-

Yiigiaia.

sing under the laws of the United States,9' compre-
hend criminal prosecutions in the State Courts, then
every prosecution against a citizen of the State, in
which her may claim some exemption under an act
of Congress or a treaty, however unfounded the
claim, may be re-examined, both as to law and fact,
(if Congress please,) in the Supreme Court. And if
" controversies'1 include such prosecutions, then
every prosecution against an alien, or the citizen of
another State, may be so re-examined, whether he
claim such exemption or not. Can this Court bring
up a capital case, wherein some exemption under a
federal law is claimed by a prisoner in a State
Court? Would* an appeal lie, (should Congress so
direct,) from a jury ? It would not, even if the trial
was had in a federal Court ; for the accused has a
right to a trial by a jury in the State and district
wherein the crime shall be charged to have been
committed. In all cases within the appellate juris*
diction of the Supreme Court, that jurisdiction may
extend to the law and the fact. But such jurisdic-
tion, as to the fact, cannot extend to criminal cases ;
consequently, it was not intended that the appellate
jurisdiction should extend to criminal cases ; and,
therefore, the Supreme Court have no appellate ju-
risdiction in criminal cases. Can, then, the Court
take jurisdiction in this case, which was a criminal
prosecution, founded on the presentment of a grand
jury ? Surely they cannot. This case was not a qui

OF THE UNITED STATES.

tarn actios, Which is regarded as a civil suit.* It was, ieat
both in form and substance, a criminal prosecution.
And it has been declared by a judge of this Court)
that " the Courts of the United States are vested
With no power to scrutinize into the proceedings of
the State Courts, in criminal cases."*

That which is fixed by the constitution, Congress
have no power to change. The jurisdiction of the
State Courts is fixed by the constitution. It is not a
subject for congressional legislation. The people
of Virginia, in adopting the constitution of the Uni-
ted States, had power to diminish the jurisdiction of
the State judiciary : but Congress have no power
over it f they can neither diminish nor extend it;
they can neither take from the State tribunals one
cause, or give theft one to decide. As they cannot
impose on the State Courts any duties, so neither
can they take from them any ^powers. • Congress
can neither add to or diminish the legislative power,
the executive power, or the judicial power of a State,
as fixed by the constitution. Congress may pass all
laws necessary and proper to execute that power
which is vested by the constitution in the judiciary
of the United States ; but this does not sanction a
violation of the authority of the State Courts. None
can enlarge or abridge the jurisdiction of the judici-
ary of Virginia, except the people of Virginia, or
the legislature of that State. As was the jurisdic-
tion of the State judiciary on the 4th day of March,
1789, so it stands at this day ^unless altered by the

a Owp. 38*. b 1 Wheat. Ry, 377.

324 CASES IN THE SUPREME COURT

i82i. State. If on that day the States retained jurisdiction
of most of the cases enumerated in the third article
of the constitution, that jurisdiction must have been
left t6 them by the constitution, and cannot be taken
from them by Congress. The power either of a
State legislature or a State judiciary, cannot depend
on the use of, or neglect to use, a power, by Con-
gress. Such State power is fixed by the constitu-
tion ; the same to day as to-morrow, however Con-
gress may legislate.

The judicial power of the United States is con-
ferred by the constitution, and Congress cannot add
to that power. Congress may distribute the federal
judicial power among the federal Courts, so far as
the distribution has not been made by the constitu-
tion. If the constitution does got confer on this
Court, or on the federal judiciary, the power sought
to be exercised, it is in vain that the act of Con-
gress purports to confer it. And where the consti-
tution confers original jurisdiction, (as in cases
where a State is a party,) Congress cannot change
it into appellate jurisdiction. The extent of the ju-
dicial power of the United States being fixed by the
constitution, it cannot be made exclusive or concur-
rent, at the will of Congress. They cannot decide
whether it is exclusive of the State Courts or not ;
for that is a judicial question, arising under the con-
stitution. If the judicial power of the United States
is exclusive, Congress cannot communicate a part of
it to the State Courts, giving to the federal Courts
appellate jurisdiction over them. If .by the consti-
tution the State judiciary has concurrent jurisdiction,

OP THE UNITED STATES. 325

Congress cannot grant to the federal Courts an ap- issi.
peltate jurisdiction over the exercise of such con-
current power. The state judiciary cannot have
independent or subordinate power, at the will and
pleasure of Congress.

The State judiciary havft concurrent jurisdiction,
by the constitution, over all the cases enumerated in
the third article of the constitution, except, 1. Pro-
secutions for violating federal laws ; 2. Cases of ad-
miralty and maritime jurisdiction ; and, 3. Cases
affecting ambassadors, other public ministers, and
consuls* No government can execute the criminal
laws of another government. The States have part-
ed with exterior sovereignty. As they cannot make
treaties, perhaps they have not jurisdiction in the
case of ministers sent to the federal government; as
they cannot make war and peace, regulate commerce,
define and punish piracies and offences on the high
seas, and against the law of nations, or make rules
concerning captures on the water, perhaps they have
no admiralty jurisdiction. The jurisdiction of the
State Courts over civil causes, arising under the con-
stitution, laws, and treaties, seems to me to be un-
questionable. The State judges are sworn to sup-
port the constitution, which declares them bound by
the constitution, laws, and treaties. This was use-
less, unless they have jurisdiction of causes arising
under the constitution, laws, and treaties, which are
equally supreme law to the State Courts as to the
federal Courts. The State judges are bound by
oath to obey the constitutional acts of Congress;
but they are not so bound to obey the decisions of

326 CASES IN THE SUPREME COURT

i82i. the federal Courts : the constitution and laws of the
United States are supreme ; but the several branches
of the government of the United States have no
supremacy over the corresponding branches of die
State governments.

The jurisdiction of the State Courts is admitted
by Congress, in the judiciary act : for, by an odious
provision therein, which does not seem to be impar-
tial, the decision of the State Court, if given in fa-
vour of him who claims under federal law, is final
and conclusive. Thus, the State Courts have ac-
knowledged jurisdiction ; and if that jurisdiction is
constitutional, Congress cannot control it

Congress cannot authorize the Supreme Court to
exercise appellate jurisdiction over the decisions of
the State Courts, unless they have legislative power
over those Courts. Can Congress give an appeal
from a federal District Court to a State Court of
appeal ? I presume it will be admitted that they
cannot. And why can they not ? Because they
have no power over the State Court. And if they
cannot give an appeal to that Court, they cannot
give an appeal from that Court.

The constitution provides, that the judicial power
of the United States shall " extend to" certain enu-
merated cases. These words signify plainly, that
the federal Courts shall have jurisdiction in those
cases ; but this doeg not imply exclusive jurisdiction,
except in those cases where the jurisdiction of the
State Courts would be contrary to the necessary
effect of the provisions of the constitution. Civil

Virginia.

Ot THE UNITED STATES l 327

smtBj arising under the laws of the United States, ism.
nay be brought and finally determined in the Courts v^f^
of foreign nations ; and, consequently, may be _ r.
brought and finally determined in the State Courts.

The judiciary of every government must judge of
its own jurisdiction. The federal judiciary and the
State judiciary may each determine that it has, or
that it has not, jurisdiction of the case brought be-
fore it : but neither can withdraw a case from the
jurisdiction of the other. The question, wliether a
Skate Court has jurisdiction or not, is a judicial ques-
tion, to be settled by the State judiciary, and not by
an act of Congress, nor by the judgment of the Su-
preme Court of the United States. Shall the States
lie dented the power of judging of their own laws ?
As their legislation is subject to no negative, so their
judgment is subject to no appeal* Sovereignty con-
sists essentially in the power to legislate, judge of,
and execute laws. The States are as properly so-
vereign now as they were under the confederacy ;
and we have their united declaration that they then,
individually, retained their sovereignty, freedom, and
independence. The constitution recognizes the so-
vereignty of the States : for it admits, that treason
way be committed against them. They would not
be entitled to the appellation of " States" if they
were not sovereign.

Although the State Courts should maintain a con-
current jurisdiction with the federal Courts, yet fo-
reigners would have what, before the adoption of the
^constitution they had not, a choice of tribunals, be-
Jtfre which to bring their actions; and the State

328 CASES IN THE SUPREME COURT

mi. judges are now bound by treaties as supreme law.
If an alien plaintiff sues in the State Courts, he
ought to be bound by their decision ; and if an alien
is sued in a State Court, he ought to be bound by.
the decision of the State in which he resides or so-
journs, which protects him, to. which he owes a,
temporary allegiance, and to whose laws he should
yield obedience. The people could not have intend-
ed to give to strangers a double chance to recover,
while citizens should be held bound by, the first de-
cision ; that the citizen should be bound by thq,
judgment of the State alone, while the stranger
should not be bound but by the judgment of the.
State, and also of the United States. A statute
contrary to reason, is void. An act of Congress
which should violate the principles of natural justice,
should also be deemed void. It is worthy of consi-
deration, whether this clause in the judiciary act,
which grants an appeal to one party, and denies it
to the other, is not void, as being partial and unjust.
If, in any case brought before them, the State Courts,
shall not have jurisdiction, the defendant may plead
to the jurisdiction, and the Supreme Court of the
State will finally decide the point. If this is not a
sufficient security for justice, as I apprehend it is,
an amendment to the constitution may provide an-
other remedy. If the defendant submits to the ju-
risdiction of the State Court, and takes a chance of
a fair trial, it is reasonable that he should be bound
by the result.

As I deny to this Court authority to remove, by #
writ of error, a cause from a State Court, so I lik* .

Virginia*

OP THE UNITED STATES. 329

wise deny the authority of this Court to remove, be- mi.
fore judgment, from a State Court, a suit brought ^^^
therein. It will be equally an invasion of the juris- ip.j[:
diction of the State Court, although less offensive in
form, than a removal after judgment has been ren-
dered. Congress can neither regulate the State
Courts, or touch them by regulation.

Let the Supreme Court declare (for it is a judicial
question) what cases are within the exclusive juris-
diction of the federal Courts, by the constitution ;
and let Congress pass the necessary and proper laws
for carrying that power into effect. Although I do
not admit that the State Courts would be absolutely
bound by such a declaration, yet I have no doubt
that the State Courts would acquiesce. It is not for
jurisdiction over certain cases that the State Courts
contend. It is for independence in the exercise of
the jurisdiction that is left to them by the constitu-
tion.

2. Does the 25th section of the judiciary act com-
prehend this case, so that the Court may take juris-
diction thereof?

In this case the construction of a statute of the
United States is said to have been drawn in question,
and the decision in the State Court was against the
exemption claimed by the defendant in that Court.
This Court has no jurisdiction, if it shall appear that
the defendant really had no exemption to set up in
the State Court, under a statute of the United States.
If the act of Congress has no application, no bearing

Vob. VL 42

350 CASES IN THE SUPREME COURT

1821. on the case, the Court has no jurisdiction/ The
parties cannot, by making an act of Congress, which
does not affect the cause, a part of the record, give
this Court jurisdiction.

This Court have said, that " the sovereignly of a
State in the exercise of its legislation, is not to be
impaired, unless it be clear that it has transcended
its legitimate authority ; nor ought any power to be
sought, much less to be adjudged, in favour of the
United States, unless it be clearly within the reach
of their constitutional charter/'6 This Court have
also said, that " the sovereign powers vested in the
State governments by their respective constitutions,
remained unaltered and unimpaired, except so far as
they were granted to the government of the United
States."* The State legislatures retain the powers
not granted, and not repugnant to the exercise of the
powers granted to Congress ; and it is not denied,
that the legislature of Virginia possessed, previous to
the passage of the act of Congress for incorporating
the city of Washington, authority to prohibit the
sale of lottery tickets in Virginia. That legislature
still possesses the power, unless the exercise thereof
obstructs some means adopted by Congress for exe-
cuting their delegated powers.

Actions are lawful or criminal, as the laws of the
land determine. Whether an action done in Virgi-
nia is lawful or criminal, depends on the laws of that

a 4 Wheat. Rep. 311. Wheat. Digest, 8. 301 . 2 Wheat. Rep.
363. 4 Wheat. Rep. 314.
b 6 Wheat. Rep. 48.
t 1 Wheat. Rep. 325.

Virginig.

OP THE UNITED STATES. SSI

State, unless the action has been authorized or pro- i89fc
hibited by Congress in carrying into execution some %^££f
power granted to them, or the power of some depart- v._*
ment or officer of the government. The State go-
vernments are charged with the police of the States.
They, considering certain acts as having a demo*
ralizing tendency, have prohibited them. Shall Con-
gress authorize those very acts to be done within the
body of a State ?

So entirely is the police of a State to be regulated
by its own laws, that if Congress taxed licenses to
sell lottery tickets, the payment of the tax would not
confer on him who paid it, any authority to sell
tickets contrary to the laws of a State. Congress
imposed a tax on licenses to sell spirituous liquors by
retail ; but that did not prevent the State govern-
ments from regarding tippling houses as nuisances,
and punishing those retailers of spirits who were not
licensed tavern keepers. The license is grantable
by the State ; when granted, the federal govern-
ment may* tax it ; but they have no power to grant
it. The police belongs to the State government ;
and the federal government cannot, by the power of
taxation, interfere with the police, so as to legalize
any act which a State prohibits.

It is said that a lottery ticket owes it value to its
saleable quality. It is true that the saleability of the
ticket by the managers is essential to make the lot-
tery of value to the corporation : But, those salf s
may be made in Washington. And, if they cannot,
must the constitution yield to a lottery ? The pro*
prietor of property has not a right every where to

883 CASES IN THE SUPREME COURT

1821. dispose of it as he pleases. A man may own poison,
but he must not sell it as a medicine. He may own
money ; but he may not, in Virginia, part with it at
public gaming. He may come to Washington and
purchase a lottery ticket ; but if he takes it to Vir-
ginia he must not sell it there, A lottery ticket is a
chose in action, and not assignable by the common
law. The State laws determine whether bonds,
bills, notes, &c. are assignable or not. Spirituous
liquors are property ; but they cannot be sold by re-
tail, without the license of the State government.

The act of Congress under which this lottery has
been authorized, is not an act passed in the execu-
tion of any of those specific powers which Congress
may exercise over the States. The acts of Con-
gress must be passed in pursuance of the constitu-
tion, or they are void. If they have passed a sta-
tute authorizing an act to be done in a State which
they had no power to authorize in a State, their sta-
tute is void. The acts of Congress, to be supreme
law in a State, must be passed in execution of some
of the powers delegated to Congress, or to some de-
partment or officer of the government Congress
may pass all laws necessary and proper to carry a
given power into effect : but they must have a given
power. Now, what is the given power for the ex-
ecution of which the sale of lottery tickets in the
States is an appropriate means ? It is sufficient to
show that the act passed is a means of carrying into
execution some delegated power. The degree of its
necessity or propriety will not be questioned by this
Court ; but it must obviously tend to the execution

OF THE UNITED STATES, gg$

or sanction of some enumerated power* If it shall mi.
appear on the face of the act, that it is not passed for
the purpose of carrying into effect an enumerated ,
power, and that it is passed for some other purpose,
the act would not be constitutional.

As to the object being a national one for which
the money is raised by the lottery in question : the
nation has no particular interest in any thing in the
City of Washington, except the public property and
buildings belonging to the United States. The im-
provements to be made in the City by the proceeds
of this lottery, are not national buildings for the ac-
commodation of the federal government ; they are
Corporation buildings for the accommodation of the
City, the charge of which is to be borne out of the
revenues of the City. But, it is not admitted, that
if the money was to be applied to building of the
capitol, that Congress would have power, for that
purpose, to authorize the sale of lottery tickets in a
State, contrary to State laws.

The nation is interested in the prosperity of every
city within the limits of the Union. All may be
made to contribute to the public treasury — the City
of Washington as well as others. If these improve-
ments in the City of Washington arc such as the
United States should pay for, let the money be ad-
vanced from the treasury, and raised by taxes or by
loans in a constitutional manner, and let the taxes
imposed on the City of Washington, for the purpose
of making these improvements, be declared uncon-
stitutional. They doubtless are so if the people of
Washington alone are taxed for purposes truly na-

334 CASES IN THE SUPREME COURT

1821. tional. This measure fe not adopted to aid the reve-
nue of the United States. It is adopted for the pur-
pose of aiding the revenue of the City of 'Washing-
ton ; for effecting objects which the revenue of the
City should effect, but which the ordinary revenue is
unequal to. It is to raise an extraordinary revenue
for the City of Washington. Virginia, in which
State it has been attempted to raise a part of this
extraordinary revenue, has no more interest in the
penitentiaries and city halls of Washington than in
those of Baltimore.

Our opponents must maintain that this is an act
of Congress authorizing the sale of lottery tickets in
Virginia : For if it is not, the question is at an end* I
call upon them to show a power granted to Congress,
which the sale of lottery tickets in a State is an ap-
propriate means of executing. Suppose that Con-
gress had passed an act expressly authorizing P. &
M. Cohen to vend lottery tickets in Virginia, for the
purpose of raising a fund to diminish the taxes laid
by the Corporation of Washington on the inhabitants,
for their own benefit : would such an act have been
constitutional ? Which of the enumerated powers of
Congress would such an act have been an appro-
priate means of carrying into effect ? Suppose that
Congress had considered lotteries as pernicious gam-
bling : could they have prohibited the sale of lottery
tickets in the States ? It will be admitted that they
could not And if they cannot prohibit the sale of
tickets in a State, it is contended that they cannot
authorize such a sale. Let us suppose that Congress
have passed an act authorizing the sale of lottery

OP THE UNITED STATES. 335

tickets in the States, for the purpose of raising istu
money to build a city hall in the City of Washing-
ton : Is such an act within the constitutional powers
of Congress ? Is it a mode of laying and collecting
taxes ? Or is it a mode of borrowing money ? And is
it for the purpose of paying the debts or providing
for the general welfare of the United States?
Should it even be said that this lottery is a tax, or a
mode of borrowing money, yet the tax is laid, or the
money borrowed, not by and for the United States,
but by the Corporation for the City of Washington.
Congress have two kinds or grades of power :
(1.) Power to legislate over the States in certain
enumerated cases. (2.) Power to legislate over the
ten miles square, and the sites of forts and arsenals,
in all cases whatsoever. These powers, so very
dissimilar, should be kept separate and distinct. The
advocates of the Corporation confound them. They
pass the act of Congress by the power to legislate
over the ten miles square, unlimited as to objects, but
confined within the lines of the District, and they ex-
tend its operations over the States, by the power to
legislate over them, limited as to objects, but co-ex-
tensive with the Union. The act incorporating the
City of Washington was certainly not passed to carry
into execution any power of Congress, other than
the power to legislate over the District of Columbia.
If the clause conferring power to legislate in all
cases over the ten miles square, had been omitted,
could Congress establish lotteries ? Could an act es-
tablishing a lottery be ascribed to any of the specific

386 CASES IN THE SUPREME COURT

ia2i. powers, in the execution of which Congress may
legislate over all the States ?

If the act authorizing a lottery is justified by the
powers which extend to the States, there is no occa-
sion to rest it on the power to legislate in all cases
over Columbia. And if it is not justified by the
powers which extend to the States, it cannot be jus*
tified by that power which, being limited to the Dis**
trict, does not extend to the States. If the act of
Congress has effect in Virginia, it is a law over the
States, and must have been passed by a power to
legislate over the States. Now, a law over the
States cannot be passed by a power to legislate over
Columbia. But it is. the power to legislate over
Columbia that has been exercised. Therefore, no
law has been passed over the States. Consequent-
ly, no law has been passed having effect in the States.
It is, then, by the power to legislate over the ten
miles square that the authority to sell lottery tickets
in the States must be defended.

The power to legislate over the ten miles square,
is strictly confined to its limits, and does not autho-
rize the passage of a law for the sale of lottery
tickets in the States/ When Congress legislate ex-
clusively for Columbia, they are restrained to objects
within the District. An act of Congress, passed by
the authority to legislate over the District, cannot be
the supreme law in a State ; for if, by the power to
legislate, in all cases whatsoever, over the District,
Congress may legislate over the States, it will ne-

a Virginia Debates in Convention, vol. 2. p. 21. 29.

OF THE UNITED STATEg. 387

cessarily follow, that Congress may legislate over mi.
the States in ail cases whatsoever.

The constitution gives to Congress power to ex-
ercise exclusive legislation over the ten miles square,
in all cases whatsoever. In the case of Loughbo-
rough v. Stake, the Court said, that u on the extent
of these terms, according to the common understand-
ing of ma n kind 3 there can be no difference of opi-
nion/'11 What is the opinion in which all mankind
wilt unite as to the extent of those terms ? Not an
opinion that the laws passed in legislating over the
District, shall operate in the States. The opinion in
which it is presumed that mankind generally will
unite, is, that all acts of Congress, not contrary to
reason or the restrictions of the constitution, passed
in legislating over the District, shall operate exclu-
sively within its limits, but not at alt beyond them*
The power given to Congress, is power to legis-
late exclusively in all cases over the District What
are the appropriate means of executing that power ?
To frame a code of laws having effect within the
District only ; to establish Courts having jurisdiction
within the District only, &c. But what are the
powers claimed ? Power to repeal the penal laws
of a State ; power to pass laws u that know no lo-
cality in the Union ;" laws " that can encounter no
geographical impediments;" laws " whose march is
through the Union." I admit, that all the powers
of Congress, except this of exclusive legislation in
all cases* extend throughout the Union ; but this, by

a h fVheat Rep. 317,
Vol. VI. 43

338 CASES IN THE SUPREME COURT

1821, the most express words, and from its nature, is local.
Yet, in this case, by a power to legislate for a District
ten miles square, Congress is made to assume a
power to legislate over the whole Union ; and be-,
cause an act is authorized to be done in Columbia,
over which Congress may legislate in all cases what-
soever, it is, therefore, to be a legal act when done
in a State, the laws of such State notwithstanding.

The power given to Congress to legislate over the
District in all cases whatsoever, is precisely of the
same extent as if this had been the only power con-
ferred on them. Now, had it been the only power
conferred on Congress, could there have arisen any
doubt about its extent ? When Congress legislate
for the District of Columbia, they are a local legis-
lature. The authority to legislate over the District
in all cases whatsoever, is as strictly limited as is that
of the legislature of Delaware to legislate only over
Delaware. The acts of the local legislature have no
operation beyond the limits of the place for which
they legislate.

If this clause confers on Congress any legislative
power over the States, it must be of the kind grant-
ed. But the power granted is exclusive, and no one
will contend, that an exclusive power to legislate
over the States is conferred on Congress. The
power given extends to all cases whatsoever, and no
one will contend, that Congress have power to legis-
late over the States in all cases whatsoever. The
grant is of an exclusive power in all cases over ten
miles square. The claim set up is a claim of para-
mount power over the whole United States.

OF THE UNITED STATES. 339

m Any single measure which Congress may adopt, uat
must be justified by some single grant of power, or
not at all. No combination of several powers can
authorize Congress to adopt a single measure which
they could not adopt either by one or another of
those powers, combined with the power to pass ne-
cessary and proper laws for carrying such single
power iuto effect.

There is no repugnancy between the acts of Vir-
ginia against selling lottery tickets within that State,
and the power granted to Congress to legislate over
the District of Columbia* There can be none ; for
the line of the District completely separates them.
The act passed by Congress is confined to the District ;
the act of the State legislature is confined to the State :
How can there be any repugnancy ? A power to le-
gislate over Virginia cannot come into collision with
a power to legislate over the District, unless those
to whom they are entrusted pass the limits of their
jurisdiction. It is not alleged, that the legislature of
Virginia have passed the limits of their jurisdiction.
If Congress have authorized a lottery to be drawn
within the city, the sale of tickets, and the drawing
of the lottery are thereby legalised within the city.
Congress have never said that lottery tickets may
be sold in the States. Those tickets may be sold in
any place where the local laws will admit. But
that they should be sold in Virginia, where such a
sale is unlawful, Congress have neither enacted, nor
had power to enact. It is said, that without a power
to sell the tickets, the power to draw the lottery is

840 CASES IN THE SUPREME COURT

iwi. ineffectual. I answer, if a power to sell lottery
tickets necessarily follows a power to draw lotteries^
as the lotteries must be drawn in the city, so there
the tickets must be sold. The authority to sell is
the authority to draw ; and as the principal autho-
rity (to draw) is confined to the city, so is the eon-
sequent authority, (to sell.) Can the Corporation
draw lotteries in the States ? If not, where is their
authority to sell where they have no authority to
draw ? If the seller of lottery tickets is the agent
of the Corporation, then they can clothe him with
no legal authority to be executed in a State, contrary
to the law of the State. The Corporation must sell
their tickets where they have authority, or where
they are permitted to sell* If the seller was a pur*
chaser of tickets, and desires to sell again, the City
has no interest in that subsequent sale; and the
purchaser must sell where he is permitted to sell*
Why should the owners of these tickets have an ex-
clusive privilege in Virginia, to sell their tickets,
contrary to the laws of the land ?

It has been, in effect, maintained, that Congress
may not only themselves legislate over the Union,
but that they may exercise this power by substitute.
Power to legislate over a State must be derived from
the people ; and cannot be transferred. If the
power to legislate over the City may be vested in the
representatives of the people thereof; yet, surely, a
grower to legislate over the States cannot be trans-
ferred to the representatives of the people of the City.
When Congress pass an act which shall have the

OF THE UNITED STATES. 341

©feet of law in the States, it must be passed in pur- ie».
suance of power delegated to them by the people of
the Stales. The constitution declares, that " all
legislative power herein granted shall be vested in a
Congress of the United States." This vested power
cannot be. transferred to a Corporation. It must be
exercised by Congress, and in the manner prescribed
by the constitution. Legislative power is not, in its
nature, transferable. The people do not consent to
obey any laws except those passed by their repre-
sentatives according to the constitution. They who
legislate for the nation must represent the nation.
The Corporation of Washington cannot receive power
to legislate over the people of the United States*
To incorporate the people of the City of Washing-
ton with power to make by-laws for the government
and police of the city, is no transfer of power. It is
an authority to exercise an inherent power. There
is in every body of people a natural inherent right to
legislate for themselves : but small societies must
. have permission or authority, from the great socie-
ties, of which they form a part. Thus, Congress
authorized the people of Missouri to form a consti-
tution, and govern themselves. Is this a transfer of
power ? No, certainly : it is an authority to exer-
cise the inherent power of the people in governing
themselves. Congress may authorize the people of
Washington, or the people of Arkansas, to govern
themselves ; but it wds never heard, until this case
arose, that a local Corporation, authorized by Con-
gress to legislate for themselves, could pass laws of

342 CASES IN THE SUPREME COURT

i82i; obligation throughout the Union : laws paramount
in the States to the laws of the States.

It seems to have been considered by the advo-
cates of the Corporation, that what Congress au-
thorizes to be done, that they do. . This is not so.
Congress authorized Missouri to form a constitution;
but Congress did not therefore form the constitution
of Missouri. The Corporation of Washington were
left free to act on the subject of lotteries. They
were empowered to authorize the drawing of lotteries,
and to pass the laws necessary and proper for car-
rying that power into effect The law establishing
the lottery in question, is the by-law of the Corpo-
ration. The by-laws of the City of London are not
acts of Parliament, or laws of the realm ; neither
have the by-laws of the City of Washington any
force beyond the limits of the City.

Congress have not said that the lottery tickets
should be sold in the States. They have not even
said that there shall be a lottery. Congress empow-
ered the Corporation to pass the law, and the Cor-
poration passed it; the ordinance of the Corporation
establishing a lottery, is no more a part of the act of
Congress, than the territorial laws now passing in
Arkansas will be parts of the acts of Congress. It
is not an act of Congress under which these tickets
have been sold in Virginia, contrary to the laws of
that State : it is a by-law of the Corporation of
Washington that gave existence to this lottery. An
act of Congress does not apply to the case ; and
therefore this Court have no jurisdiction under the
judiciary act.

OF THE UNITED STATES. l 343

: The' powers of the Corporation of Washington 1821.
are confined within the limits of the City. Being a
Corporation for government, all within the corpo-
rate limits are subject to them ; but no others/
They cannot make a by-law affecting even their own
members, beyond the corporate limits ; they have
no power to pass a law authorizing the sale of lot*
tery tickets in Georgetown, much less have they the
power to authorize the sale of them in a State, con-
trary to its laws. This by-law either extends be-
yond the limits of the City, or it does not. If it does,
it is void r and if it does not, it can have no effect in
Virginia* The by-laws of a Corporation are to be sub-
ject to the laws of the land, even within their limits.
The laws of the States are the laws of the land, within
their limits, on subjects not committed to Congress.
To those laws all corporate laws are subject/ But
there cannot be that kind of collision between by-
laws of the Corporation of Washington and State
laws, as between the by-laws of the Corporation of
the City of London, and the laws of England. As
the by-laws of London may come in collision with
the laws of England, but cannot come in collision
with the laws of Ireland and Scotland, in those
countries', so the by-laws of the Corporation of

a 1 Bac. Abr. 544. 2 Corny nys Dig. 154. 3 Mod. J59. 1 AW*.
Abr. 415. T. Jones 144. 1 Ms. Abr. 413. 3 Yeates, (Penn.)
478.

6 1 Bac. Abr. 544, 545. 551. Hobart, 911. 5 Co. 63. and 8
Co. Rep. 126.

344 CASES INT THE SUPREME COURT: '

ia2i. Washington may come in collision with the laws of
the United States in the ten miles square ; hot can
never come in collision with the laws of a State,
for they cannot have operation in a State.

The Court will maintain the powers of Congress
as granted by the people, and for the purposes for
which they were granted by the people ; and will, if
possible, to preserve harmony, prevent the clashing
of federal and State powers. Let each operate
within their respective spheres ; and let each be con-
fined to their assigned limits. We are all bound to
support the constitution. How will that be best ef-
fected ? Not by claiming and exercising unacknow-
ledged power. The strength thus obtained will
prove pernicious. The confidence of the people con-
stitutes the real strength of this government No-
thing can so much endanger it as exciting the hosti-
lity of the State governments. With them it is to
determine how long this government shall endure. I
shall conclude by again reminding the Court of a de-
claration of their own, that, " no power ought to be
sought, much less adjudged, in favour of the United
States, unless it be clearly within the reach of their
constitutional charter."

Mr. D. B. Ogdertj contra, (1.) stated, that he
should not argue the general question whether this
Court had an appellate jurisdiction, in any case, from
the State Courts, because it had been already so-
lemhly adjudged by this Court, in the case of Mar-
tin v. Hunter.*

a 1 Wheat. Rep. 304*,

OP THE UNITED STATES* 846

2. This is a case arising under the constitution ie*i.
and laws of the Union, and therefore the jurisdic-
tion of the federal Courts extends to it by the ex-
press letter of the constitution; and the case of
Martin v. Hunter has determined that this jurisdic-
tion may be exercised by this Court in an appellate
form. But it is said, that the present case does not
arise under the constitution and laws of the United
States, because the legislative powers of Congress,
as respects the District of Columbia, are limited and
confined to that District. But, if the law be thus li-
mited in its operation, how is this to be discovered
but by examining the constitution ? and how is this
examination to be had but by taking jurisdiction of
the case? In the whole argument, constant refer-
ence was had, and necessarily had, to the constitu-
tion, in order to decide the ease between the parties,
upon this question of jurisdiction ; and yet it is said to
be a case not arising under the constitution. It is
also contended, that it is not an act of Congress, the
validity of which is drawn in question in the present
case ; bat an ordinance of the Corporation of the City
of Washington ; and the maxim of delegatus non
potest delegare, is referred to, in order to show that
the Corporation cannot exercise the legislative power
of Congress. Is it meant by this to assert that Con-
gress cannot authorize the Corporation to make by-
laws ? Even the soundness of this position cannot be
determined without examining the constitution and
acts of Congress, and adjudging upon their interpre-
tation. The whole District of Columbia, and all its
subordinate municipal Corporations, are the creatures

Vol. VI. 44

346

CASES IN THE SUPREME COURT

1821.

Cohens

v.
Virginia.

of the constitution ; and the acts of Congress, rela-
tive to it, must be determined by the constitution,
and must be laws of the United States. Are not
the extent of the powers vested in Congress, and the
manner in which these powers are to be executed,
necessarily, questions arising under the constitution,
by which the powers are given ? How can the ques-
tion, whether this is a lottery authorized by an or-
dinance of the Corporation, and not by a law of the
United States, be decided, but by a reference to the
laws of the Union, and the constitution under which
they were enacted ? The plaintiffs in error set up a
right to sell lottery tickets in the State of Virginia,
under the constitution and laws of the United
States, and the State denies it. By whom is this
question to be decided ? It is a privilege or exemp-
tion, within the very words of the judiciary actf
set up or claimed, by the party, under the constitu-
tion and laws of the Union. It is immaterial for the
present purpose whether the claim be well or ill
founded. The question is, whether the party setting
up the claim, is to be turned out of Court, with-4'
out being heard upon the merits of his case. If
you have not jurisdiction, you cannot hear him
upon the merits. Upon this motion to quash the
writ of error, you can only inquire into the jurisdic-
tion, and cannot look into the merits: but you
are asked to turn the party out of Court for defect
of jurisdiction, and without giving him an oppor-
tunity to show that by the laws and constitution
of the Union, he is entitled to the privilege and ex-
emption which he claims. It is no answer to say that

OF THE UNITED STATES. 347

any individual may allege that he has such a privi- iesi.
lege, in order to remove his case from the State ^f^^
Court to this ; because no injury would ensue, as the v.
case would be sent back with damages : and even if V'***™*
there might be some inconveniences, from impro-
perly bringing causes here, they ought rather to be
submitted to, than to hazard the possible violation of
the constitutional rights of a citizen.

3. It is no objection to the exercise of the judicial
powers of this Court, that the defendant in error is
one of the States of the Union. Its authority ex-
tends, in terms, to all cases arising under the con-
stitution, laws, and treaties of the United States ; and
if there be any implied exceptions, it is incumbent on
the party setting up the exception to show it. In
order to except the States, it is sai(J that they are
sovereign and independent societies and therefore
not subject to the jurisdiction of any human tribu-
nal. But we deny, that since the establishment of
the national constitution, there is any such thing as
a sovereign State, independent of the Union. The
people of the United States are the sole sovereign
authority of this country. By them, and for them,
the constitution was established. The people of
the United States in general, and that of Virginia- in
particular, have taken away from the State govern-
ments certain authorities which they had before, so
that they are no longer sovereign and independent in
that sense which exempts them from all coercion by
judicial tribunals. Every State is limited in its
powers by the provisions of the constitution ; and
whether a State passes those limits, is a question

S4& CASES IK THE SUPREME COURT

i82i. which the people of the Union have not thought fit to
trust to the State legislatures or judiciaries, but
have conferred it exclusively on this Court. The
Court would have the jurisdiction without the word
State being mentioned iti the constitution. The term
u all cases," means off, without exception ; and the
States of the Union cannot be excepted, by implication,
because they have ceased to be absolutely sovereign
and independent. The constitution declares that
every citizen of one State, shall have all the privi-
leges of the citizens of every other State. Suppose
Virginia were to declare the citizens of Maryland
aliens, and proceed to escheat their lands by inquest
of office : the party is without a remedy ; unless he
can look for protection to this Court, which is the
guardian of constitutional rights. Because the State,
which is the wrong doer, is a party to the suit, is
that a reason why he should not have redress ? By
the original text of the constitution, there is no li-
mitation in respect to the character of the parties,
where the case arises under the constitution, laws,
and treaties of the Union : and the amendment to
the constitution respecting the suability of States,
merely applies to the other class of cases, where it is
thte character of the parties, and not the nature of
the controversy, which alone gives jurisdiction. The
original clause giving jurisdiction on account of the
character of the parties, as aliens, citizens of differ*
ent States, &c. does not limit, but extends the judi-
cial power of the Union. The amendment applies
to that alone. It leaves a suit between a State and
a citizen, arising under the constitution, laws, &c.

OF THE UNITED STATES. 340

where it found H ; and the States are still liable to mi.
be sued by a citizen, where the jurisdiction arises in
this manner, and not merely out of the character of
the parties. The jurisdiction in the present case
arises out of the subject matter of the controversy,
and not out of the character of the parties ; and,
consequently, is not affected by the amendment.

But it is said, that admitting the Court has juris-
diction where a State is a party, still that jurisdiction
must be original, and not appellate ; because the con-
stitution declares, that in cases in which a State shall
be party, the Supreme Court shall have original ju-
risdiction, and in all other cases, appellate jurisdic-
tion. The answer is, that this provision was mere-
ly intended to prevent States from being sued in
the inferior Courts of the Union; that the Su-
preme Court is to have appellate jurisdiction in all
cases arising under the constitution, laws, and trea-
ties of the United States ; that where, in such a
case, a State sues in its own Courts, it must be un-
derstood as renouncing its privilege or exemption,
and to submit itself to the appellate power of this
Court ; since, if the jurisdiction in this class of cases
be concurrent, it cannot be exercised originally in
the Supreme Court, wherever the State chooses to
commence the suit in its own Courts. Nor is there
any hardship in this construction. The State can-
not be sued in its own Courts ; but if it commences
a suit there against a citizen, and a question arises
in that suit under the constitution, laws, and treaties
of the Union, there must be power in this Court to
revise the decision of the State Court, in order to

$60 CASES IN THE SUPREME COURT

i82i. produce uniformity in the construction of the consti-
tution, &c. So, if a consul sues in the Circuit Court,
this' Court has appellate jurisdiction, although the
consul could not be sued in the Circuit Court And
if the United States, who cannot be sued any where,
think proper to sue in the District or Circuit Court,
they, are amenable to the appellate jurisdiction of
this Court. Even granting, therefore, that a State
cannot be sued in any case ; the State is not sued
here : she has sued a citizen, in her own tribunals,
who implores the protection of this high Court to
give him the benefit of the constitution and laws of
the Union. The jurisdiction does not act on the
State ; it merely prevents the State from acting on a
citizen, and depriving him of his constitutional and
legal rights.

It is true, there are some cases where this Court
cannot take jurisdiction, though the constitution and
laws of the Union are violated by a State. But
wherever a case is fit for judicial cognizance, or
wherever the State tribunals take cognizance of it,
whether properly or not, the appellate power of this
Court may intervene, and protect the constitution and
laws of the Union from violation. Doubtless, a
State might grant titles of nobility, raise and support
armies and navies, and commit many other attacks
upon the constitution, which* this Court could not
repel. But if these attacks were made by judicial
means, or if judicial means were used to compel
obedience to these illegal measures, the authority of
this Court could, and would, intervene. Nor can

OF THE UNITED STATES. 361

this argument apply to a case, which is entirely mi.
judicial in its very origin, and, therefore, steers clear
of the supposed difficulty of vindicating the consti-
tution and laws of the Union from violation in other
cases which may be imagined.

Neither is this a criminal case. The offence in
question is not made a misdemeanour by the law of
Virginia. That law merely imposes a penalty, which
may be recovered by action of debt, or information,
or indictment. The present prosecution is a mere
mode of recovering the penalty. But suppose it is a
criminal case. The constitution declares, that the
Court shall have jurisdiction in all cases arising
under it, or the laws and treaties of the Union ; which
includes criminal as well as civil cases ; unless, in-
deed, Congress has refused jurisdiction over the
former in the judiciary act, which we insist it has
not.

Mr. Pinkney, on the same side, (1.) argued, that
there was no authority produced, or which could be
produced, for the position on the other side, that this
Court could not, constitutionally, exercise an appel-
late jurisdiction over the judgments or decrees of the
State Courts, in cases arising under the constitution,
laws, and treaties of the Union. The judiciary act
of 1789, c. 20. contains a cotemporaneous con-
struction of the constitution in this respect, of great
weight, considering who were the authors of that
law ; and which has been since confirmed by the re-
peated decisions of this Court, constantly exercising

352

1821.

CASES IN THE SUPREME COURT

the jurisdiction in question/ This legislative and
judicial exposition has been acquiesced in, since no
attempt has ever been made to repeal the law upon
the ground of its repugnancy to the constitution :
Transiit in rem judicatam. But even before the
constitution was adopted, and whilst it was submit*
.ted to public discussion, this interpretation was given
to it by its friends, who were anxious to avoid every
objection which could render it obnoxious to State
jealousy. But they well knew chat this interpreta-
tion was unavoidable, and the authors of the eele*
brated Letters of Publius, or the Federalist, have
stated it in explicit terms/

a Clarke v. Harwood, 3 Ball. 342. Gordon v. Caldcleugh*
3Cranch, 268. Smith v. Maryland, 6 Crane h, 286. Mat-
thews v. Zane, 4 Cranch, 382. O wings v. Norwood's Lessee,
5 Cranch, 344. Martin v. Hunter, 1 Wheat. Rep. 304. Otis v.
Walter, 2 Wheat. Rep. 18. Miller v. Nicholls, 4 Wheat Rep.
311. Gelston v. Hoyt, 3 Wheat. Rep. 246. M'lntire v.
Wood, 7 Cranch, 606. Slocum v. May berry, 2 Wheat. Rep. 1.
M'Culloch v. Maryland, 4 Wheat. Rep. 316.

b " Here another question occurs — what relation would sub-
sist between the national and the State Courts in these instances
of concurrent jurisdiction ? I answer, that an appeal would
certainly lie from the latter to the Supreme Court of the Uni-
ted States. The constitution in direct terms gives an appellate
jurisdiction to the Supreme Court in all the enumerated cases
of federal cognizance, in which it is uot to have an original
one ; without a single expression to confine its operation to
the inferior federal Courts. The objects of appeal, not the
tribunals from which it is to be made, are alone contemplated.
From this circumstance, and from the reason of the thing, it
ought to be construed to extend to the State tribunals. Either
this -must be the case, or the local Courts must be excluded

OP THE UNITED STATES.

But it is said, that the jurisdiction of the State 1821.

Cohens

Courts is concurrent with those of the Union, over
that class of cases arising under the constitution. ~v?
laws, and treaties of the United States. This, how-
ever, is not of absolute necessity, but at the discre-
tion of Congress, who may restrain and modify this
concurrent jurisdiction, or render it exclusive in the
federal tribunals at their pleasure. The supremacy
of the national constitution and laws, is a fundamen-
tal principle of the federal government, and wouM
be entirely surrendered to State usurpation, if Con*

from a concurrent jurisdiction in matters of national concern,
else the judiciary authority of the Union may be eluded at the
pleasure of every plaintiff or prosecutor. Neither of these
consequences ought, without evident necessity, to be involved ;
the latter would be entirely inadmissible, as it would defeat
tome of the moat important and avowed purpose* of the propo*
sed government, and would essentially embarrass its measures.
Nor do 1 perceive any foundation for such a supposition.
Agreeably to the remark already made, the national and State
systems are to be regarded as one whole. The Courts of* the
latter will of course be natural auiHiaries to the execution of
the laws of the Union, and an appeal from them wiU as naturally
lie to that tribunal which is destined to unite and assimilate the
principles of national justice and the rules of national decisions.
The evident aim of the plan of the convention is, that all the
causes of the specified classes shall, for weighty public reasons1,
receive their original or final determination in the Courts of the
Unitn. To confine, therefore, the general expressions* giving
appellate jurisdiction to the Supreme Court, to appeals from
the subordinate federal Courts, instead of allowing their e.x*
tension to the State Courts, would be to abridge the latitude of
the terms, in subversion of the intent, contrary to every sound
rule of interpretation.'* No. LXXXIII.
Voi. VI. 45

$54 CASES IN THE SUPREME COURT

1821. gcess could not, at its option, invest the Courts of
the Union with exclusive jurisdiction over this class
of cases, or give those Courts an appellate jurisdic-
tion over them from the decisions of the State tribu-
nals. Every other branch of federal authority might
as well be surrendered. To part with this, leaves
the Union a mere league or confederacy of States
entirely sovereign and independent This particular
portion of the judicial power of the Union is indis-
pensably necessary to the existence of the Union.
It is an axiom of political science, that the judicial
power of every government must be commensurate
with its legislative authority : it must be adequate to
the protection, enforcement, and assertion of all the
other powers of the government In some cases this
power must necessarily be directly exercised by the
federal tribunals, as in enforcing the penal laws of the
Union. &*t in other cases, it is merely a protecting
power, and cannot, from the very nature of things,
be exercised in the first instance, by the Courts of
the Union. Such are suits between citizen and
citizen on contract Here the State Courts must ne-
cessarily have original jurisdiction ; but if the party
defendant sets up a defence, founded (for example)
upon an act of the State legislature supposed to im-
pair the obligation of contracts, and the decision of
the State Court is in favour of the law thus set up,
the judicial authority of the Union must be exerted .
over the cause, or that clause of the constitution
Which prohibits any State from making a law im-
pairing the obligation of contracts is a dead letter.
There is nothing in the constitution which prohibits

OF THE UNITED STATES. S5&

the exercise of such a controlling authority. On the i8*i«
contrary, it is expressly declared, that where the
case arises under the constitution and laws of the
Union, the judicial power of the Union shall extend
to it. It is the case, then, and not the forum in
which it arises, that is to determine whether the ju-
dicial authority of the Union shall be exercised over
\t. But there is a class of cases which must neces-
sarily originate in the State tribunals, because it can-
not be known at the time the suit is commenced,
whether it will or will not involve any question ari-
sing under the constitution and laws of the Union.
Over this class of cases, then, the Courts of the
Union must have appellate jurisdiction. The appel-
late power of this Court is extended by the constitu-
tion to all cases within the judicial authority of the
Union, and not included within the original jurisdic-
tion of this Court. Its appellate power, so far as
respects the constitution, depends, then, on two
questions only : is the case within the judicial power
of the Union ? and is it within the original cogni-
zance of this Court ? The first question being an-
swered affirmatively, and the second negatively, the
appellate power under the constitution is completely
established in any given case.

But the power of removing this class of causes,
pendente lite, is also denied ; and it is said, that the
authority to remove, before judgment, a suit brought
in the State Court, into the federal Court, is repug-
nant to the constitution. In Martin v. Hunter, the
argument was the other way, and it was insisted*
that Congress ought to have given to this Court the

$$6 CASES IN THE SUPREME COURT

I821, power of evoking this description of causes from the
State tribunals, the moment any question arose re-
specting the constitution and laws of the Union, in
order to avoid the offensive exercise of an appellate
jurisdiction over the State Courts.0 Quacunque via
data — it is immaterial ; for the power of removal, if
it be not unconstitutional, is an appellate power, and
analogous to a writ of error. If it be unconstitu-
tional, the necessity for the controlling power of a
writ of error, is only the more manifest. Take away
both, and the constitution, laws, and treaties of the
Union lie at the mercy of the State judicatures.

Again. It is said, that the judges of the State
Courts take an oath to support the constitution of
the Union, and the laws and treaties of the Union
are their supreme law : and it is inferred, that the
constitution reposes implicit confidence in them, and
there ought to be no revision of their judgments*
But, it may be asked, if the constitution reposes this
implicit confidence in the State tribunals, why does
it authorize the establishment of federal Courts,
which, upon this supposition, would be wholly use-
less ? And why are the members of the State legis-
latures and executives required to take the same
oath ? They are bound to support the constitution
by the same solemn sanctions, and yet their acts
may confessedly be set aside by the national judica-
tures, as being repugnant to that constitution. The
actual constitution of this country is not a govern-
ment wf confidence ; it is a scheme of government
• ••

« 1 Rfrof. Rep. 31».

OP THE UNITED STATES, 357

conceived in the spirit of jealousy, and rendered i82i.
adequate to all its own purposes, by its own means :
and the judicial power of the Union is the principal
means of giving effect to it This it is which dis-
tinguishes it from the Confederation. Experience has
shown the necessity and wisdom of this provision*
If the State Courts may adjudicate conclusively for
the Union, why may not the State legislatures legis-
late for it ; and where is the utility of distinct and
appropriate powers, if it cannot maintain them from
violation ? In Martin v. Hunter f the Court consi-
dered this argument fully, and thought it operated
the other way. The care which the constitution
takes to make the State Courts respect it, and the
laws and treaties made under it, proves that it was
supposed that cases might come before them by ori-
ginal suit, which would involve the rights and inter-
ests of the Union, and lay a foundation for appeal or
revision. This was anticipated, and the constitu-
tion endeavours to make the first decision correct, by
the sanction of an oath. But it does not improvi-
dently rely upon that alone. The judges of the in-
ferior Courts of the Union take the same oath, and
lie under the same obligation ; but they are not the
less subject to the appellate jurisdiction of the Su-
preme Court

But it is asked, can Congress grant an appeal
from the District or Circuit Court, to a State Court?
The question is answered in the negative, and it is
thence inferred that they cannot grant an appeal

a 1 Wheat. Rep. 349.

368 CASES IN THE SUPREME COURT

i82i. from a State to a federal Court. This seems to im-
ply that you can do nothing unless you can do its
opposite. Such a proposition would repeal all the
physical and moral laws of the universe. As well
might it be asked, can Congress grant an appeal
from the Supreme to the District Court ; and be-
cause there is something absurd in the idea of an
appeal from a superior to an inferior tribunal, it
would be inferred that the opposite appeal could not
be granted. But, until the relation of supreme and
subordinate is destroyed, the State laws and judica-
tures must be considered as subordinate to those of
the Union, in all cases within the scope of its
powers and jurisdiction. Such was once the doc-
trine asserted by Virginia herself, and to which it is
confidently believed she will revert in a moment of
calmer reflection/

a The learned counsel here read the following resolutions of
the legislature of Virginia.

Extract from the Journal of the Senate of the Common-
wealth of Virginia, begun and held at the Capitol in the City of
Richmond, the 4th day of December, 1809.

Friday, January 26, 1810. " Mr. Nelson reported from the
Committee to whom were committed the preamble and resolu-
tions on the amendment proposed by the legislature of Penn-
sylvania, to the constitution of the United States, by the ap-
pointment of an impartial tribunal to decide disputes between
the State and federal judiciary, that the Committee had, ac-
cording to order, taken the said preambles and resolutions
under their consideration, and directed him to report them
without any amendment. And on the question being put there-
upon, the same were agreed to unanimously, by the House, as
follows : The Committee to whom was referred the communi-
cation of the Governor of PennsylTania, covering certain, re4b-

Cohens

OF THE UNITED STATES. $qq

% It is further contended on the other side, that issi.
jthis Court has no jurisdiction of the present case,
because the writ of error presents no question ari- "Tf

Virginia.

lutions of the Legislature of that State, proposing an amend*
ment to the constitation of the United States, by the appoint-
ment of an impartial tribunal to decide disputes between the
State and federal judiciary, have had the same under their con-
sideration, and are of opinion that a tribunal is already provided
by the Constitution of the United States, to wit : The Supreme
Court, more eminently qualified from their habits and duties,
from the mode of their selection, and from the tenure of their
offices, to decide the disputes aforesaid, in an enlightened and
impartial manner, than any other tribunal which could be
created. The members of the Supreme Court are selected
from those in the United States who are most celebrated for
virtue and legal learning, not at the will of a single individdnl,
but by the concurrent wishes of the President and Senate of the
United States ; they will, therefore, have no local prejudices and
partialities. The duties they have to perform lead them neces-
sarily to the most enlarged and accurate acquaintance with the
jurisdiction of the federal, and several State Courts, together
with the admirable symmetry of our Government. The
tenure of their offices enables them to pronounce the sound
and correct opinions they may have formed, without fear, fa-*
Tour, or partiality. The amendment to the constitution pro-
posed by Pennsylvania, seems to be founded upon the idea that
the federal judiciary will, from a lust of power, enlarge their
jurisdiction, to the total annihilation of the jurisdiction of the
State Courts ; that they will exercise their will instead of the
law and the constitution. This argument, if it proves any thing,
would operate more strongly against the tribunal proposed to
be created, which promises so little, than against the Supreme
Court, which, for the reasons given before, have every thing
connected with their appointment, calculated to insure confi-
dence. What security have we, were the proposed amend-
ment adopted, that this tribunal would not substitute their will

360 CASES IK THE SUPREME COURT

1821. sing under the constitution or laws of the United
States. And to show this, it is said that the record
speaks onlj of the validity of the act of Congress,

and their pleasure in place of the law ? The judiciary are the
weakest of the three departments of government, and least dan-
gerous to the political rights of the constitution. They hold
neither the purse nor the sword ; and even to enforce their own
judgments and decrees, must ultimately depend upon the exe-
cutive arm. Should the federal judiciary, however, unmind-
ful of their weakness, unmindful of the duty which they owe
to themselves and their country, become corrupt, and transcend
the limits of their jurisdiction, would the proposed amendment
oppose even a probable barrier to such an improbable state of
things ? The creation of a tribunal such as is proposed by
Pennsylvania, so far as we are enabled to form an idea of it,
from the description given in the resolutions of the legislature
of that State, would, in the opinion of your Committee, tend
rather to invite, than prevent a collision between the federal
and State Courts. It might also become, in process of time, a
serious and dangerous embarrassment to the operations of the
general Government.

Resolved, therefore, that the legislature of this State do dis-
approve of the amendment to the constitution of the United
States proposed by the legislature of Pennsylvania.

Resolved, also, that his excellency the Governor be, and is
hereby requested to transmit forthwith, a copy of the fore-
going preamble and resolutions to each of the Senators and Re-
presentatives of this State, in Congress, and to the executives
of the several States in the Union, and request that the same
be laid before the legislatures thereof."

Extract from the Journal of the House of Delegates of the
Commonwealth of Virginia :

" Tuesday, January 23, 1810. The House, according to
the order of the day, resolved itself into a committee of the
whole house on the state of the Commonwealth, and after
some time spent therein, Mr. Speaker resumed the chair, and

OF THE UNITED STATES. 361

apd nobody denies its validity, and therefore no 1821.
question arises under an act of Congress. But the
words 'of the judiciary act are pursued by this writ
of error, as they always have been in other c^ses.
It is the validity of the act of Congress, and the va-
lidity of the act of Virginia, as compared with it,
which are drawn into question. The Court below
decided against the first, and in favour of the last, to
the full extent of the case. The validity of the act
of Congress, means the effect attributed to it by the
defendant who sets it up as a defence against so much
of the act of the State as inflicts a penalty upon him
for doing what the act of Congress authorizes. The
defendant relies upon the act of Congress, as crea-
ting an exception in favour of his case, out of the act
of Virginia. He says it is valid, or available, or effi-
cacious to create such an exception. That was the
question which the record shows was before the
Court below ; and the Court decided that it was not
so valid, or available, or efficacious. Whether it is
so or not, is the question which the writ of error
presents for inquiry ; and it is such a question as the

Mr. Robert Stanard reported that the committee had, accord-
ing to order, had under consideration the preamble and resolu-
tions of the select committee to whom were referred that part
of the Governor's communication which relates to the amend-
ment proposed to the Constitution of the United States, by the
legislature of Pennsylvania, had gone through the same, and
directed him to report them to the House without amendment ;
which he handed in at the clerk's table, and the question being
put on agreeing to the said preamble and resolutions, they
were agreed toby the House unanimously.
Vol. VI. 46

362 CASES IN THE SUPREME COURT

i82i appellate power of this Court can deal with. Bat
the question on this motion to dismiss the writ of
error, is not whether the act of Congress is valid as
against the act of Virginia ; but whether that ques-
tion is presented by the record, so that this Court
can determine it, after it has concluded to entertain
the writ of error. It is the claim of a right, privi-
lege, or exemption under the statute of the United
States, which gives the jurisdiction." The decision
upon that claim, as it appears upon the record, is
the exercise of the jurisdiction. That the claim to
exemption appears upon the record, cannot be de-
nied in this case more than any other. The claim
may even be an absurd one : but this Court cannot
be called upon, on a motion to dismiss the writ of
error, to condemn it as such. All argument upon
the sufficiency of the claim is premature, so long as
his, sub judice , whether the Court can examine its
sufficiency.

But it is said, that the question does not arise
under any statute of the United States, but under a
mere by-law of the City of Washington ; and that
the case involves nothing but that by-law : and it is
said to be absurd to call a by-law of the City of
Washington a law of the United States. It is im-
material whether it be so or not. The by-law is the
execution of a power given by a law of the United
States. The effect of the execution of that power,
involves the effect of the law ; and although the
execution of the power is not a law of the United

a Wheat. Dig. Dec. tit. Const. Law, V. (B.) 186.

OF THE UNITED STATES* 363

States, yet that which gives the power is. The 182L
question, therefore, is, not what is the mere effect
of the execution of the power in the abstract, or un-
connected with the law which gives it, but what is
the effect of the power by force of the law Which
gives it : and that question compels you to mount
up to the constitution itself.

The course of the inquiry will then be, (1.) What
has the party done ? and what is the immediate
authority under which he did it ? (2.) What is the
nature and extent of that authority ? what its
qualities under the law which gave it, and the con-
stitution under which that law was passed ?

If an officer of the United States does any act for
which a State Court calls him to account, and he
relies in his defence upon the authority, real or sup-
posed, of a statute of Congress, his act is not a law
of the United States ; but his defence is referred to
the effect and validity of a law of the United States,
and that is again referred to the constitution, which
is the paramount law. The last act done need not
be a law of the United States. It is sufficient, if it
is attempted to be justified, or its consequences main-
tained, under a law of the United States, which it is
alleged gave to it a protecting power in the case be-
fore the Court.

It is, however, asserted, that the constitution gives
jurisdiction only in cases arising under it, or the
laws, or treaties of the United States ; and that this
case does not arise under a law of the United States,
because the act of Congress now in question is not a
law of the United States. An act of the Congress,

364 CASES IN THE SUPREME COURT

1821. in its capacity of local sovereign of the District of
Columbia, is said not to be a law of the United
States. But whose law, then; is it ? The United
States in Congress assembled, are the local sovereigns
of the District, and it is by them that this law is
passed. Is it less a law of the United States, be-
cause it does not operate directly upon the Union at
large ? A statute is not a law of the United States
on account of the subject on which it acts t>eing
limited or unlimited. It is a law of the United
States, because it is passed by the legislative power
of the United States. The legislative authority over
the District of Columbia, is that of the Union. Its
sphere is limited, but the power itself is even greater
than the general federal power of the Union. It is
the power of the People and the States combined,
exerted upon their peculiar domain. It is the same
Congress which passes both description of laws.
The question, whether the law operates beyond the
District, is the question upon the merits hereafter to
be discussed.

Again ; it is said, that the by-law alone is in ques-
tion, and not the act of Congress : because .the by-
law is not passed by virtue of the act of Congress,
but by virtue of the inherent power of the people of
the District to govern themselves. The act of Con-
gress only calls this inherent power into action : and
this inherent power, when so called into action, is
the only power which this Court can deal with. The
fallacy of this argument consists in its confounding
inherent power with an inherent capacity to receive
power. The subordinate legislative power of the

OF THE UNITED STATES. 365

territories and Districts, which belong to the Union 1&21.
in foil sovereignty, is not their power, but that of
their superior. But admit this abstract doctrine of
inherent power : the question still recurs, what is the
constitutional effect of this power being excited into
action by the paramount power. The action of the
inherent power will still depend upon the power by
which it is set in motion ; and what it can, or can-
not do, under that impulse, is just the same question
with the other.

It is also objected, that a law emanating from the
local power of Congress over the District of Colum-
bia, cannot bind the Union. But whether it can or
not is the very question to be- determined, when the
merits come to be discussed ; which the writ of
error gives authority to decide ; and which cannot
be decided without entertaining the writ of error.
The argument on the other side, proceeds in a vitious
circle. It is asserted, that you must quash the writ
of error, because you have no jurisdiction over the
case or question. It is, then, said, that you must
take jurisdiction of, and inquire into, the case and
the question, in order that you may dismiss the writ
of error : or, in other words, you have, and you
have not, jurisdiction over the case and question,
and you ought to decide them in order to see that
you ought not to decide them. And here again the
supposed absurdity of the claim of protection, by the
defendant on the record, against the act of Virginia,
is urged to authorize a refusal to inquire upon the
writ of error, whether it is absurd or not.

366 CASES IN THE SUPREME COURT

i32i. 3. The next ground of objection to the jurisdiction

is, that the writ of error is itself a suit against a
State by a citizen of that or some other State. And
Bac. Abr. tit. Error, (L.) is cited as an authority to
show that a release of all suits is a release of a writ
of error. But, even admitting that it may sometimes
be technically called a suit, it is not such a suit as is
contemplated by the constitution. A writ of error,
where a party is to be restored to something, may be
released by a release of all suits or actions, because
in this respect it resembles an action. But this writ
of error is not a suit, because the party is not to be
restored to any thing. A reversal of the judgment
below will leave things just as they were before the
judgment. But the State of Virginia is not compel-
led to come into this Court by the writ of error. A
citation, or scire facias ad audiendum errores, is only
notice to the State, leaving it at her option volunta-
rily to appear. It does not act compulsorily upon
the State. It acts upon the Court, which she has
used as the instrument to enforce her law. A case
is presented by the interference of the judiciary of
the State, for the interposition of the appellate
power of this Court. The object is to reverse the
judgment, and that done, there is an end of the ex-
ercise of power. The United States are liable to the
same coercion. They may be called before this
Court in the same manner, and the judgments ob-
tained in their favour may be reversed. And is it
then derogatory to the sovereignty of a particular
State, that its judgments should be liable to be con-
trolled in the same manner, in cases within the ju-

OF THE UNITED STATES. 367

dicial power of the Union p This control is exerted ism.
upon the judiciary ; upon the judgments of the ju-
diciary. The State is incidentally affected ; but
that has been already determined in this Court to
be immaterial.0 Nor is this sort of control more ex-
ceptionable than that which is constantly exercised,
in suits between private parties, over the acts of the
State legislatures and executives, upon the same
ground of their repugnancy to the constitution and
laws of the Union.

If it be asked whether you can give costs against
the State, and enforce the payment ; the answer is,
that you cannot do so in any case upon a mere re-
versal of a judgment. And even if you could in a
case between private parties, is it any objection to
the appellate jurisdiction of this Court, where the
United States are plaintiffs below, that you cannot
award and enforce the payment of costs against
them ? It is not jurisdiction over the State of Vir-
ginia that is claimed, but over a question arising
under the laws of that State, and over the judg-
ments of her Courts construing those laws. This
point is incidentally touched in Martin v. Hunter^ in
considering the question as to removal of suits, be-
fore judgment, and it is there said by the Court that
the remedy of removal of suits would be utterly in-
adequate to the purposes of the constitution, if it
could act only on the parties, and not upon the
State Courts.'

a Wheat. Dig. Dec. tit. Const. Law, V. (C.) 211.
a 1 Wheat. Rep. 350.

368 CASES IN THE SUPREME COURT

i82i. 4. Lastly. It is insisted, for the defendant in error,

that this Court has no jurisdiction in the present
case, because a State is a party to the original con-
troversy which the writ of error brings before the
Court : That the jurisdiction of this Court in all
cases, where a State is a party, is original) and there-
fore it cannot have appellate jurisdiction in this case.
The obvious answer to this argument is, that the
jurisdiction now claimed does not arise under that
part of the constitution which gives original juris-
diction to the Supreme Court in cases in which a
State is a party ; but the jurisdiction is asserted
under that clause which gives the federal judiciary
cognizance of all cases arising under the constitu-
tion, laws, and treaties of the United States, without
regard to the character of the parties. In this latter
class of cases the Supreme Court has appellate ju-
risdiction. In some of this description of cases, the
jurisdiction could not be originally exercised. The
penal laws of a State cannot be originally enforced,
or enforced at all, by a judicature of the Union.
They cannot therefore form the subjects of, or create
subjects for, its original jurisdiction. The Courts
of the United States can here exert only a control-
ling or restraining power for the protection of the
rights of the Union, and this can only be done by
appeal or writ of error. This view of the subject is
taken in Martin v. Hunter. The Court there says,
" Suppose an indictment for a crime in a State
Court, and the defendant should allege in his de-
fence, that the crime was committed by an ex post
facto act of the State ; must not the State Court, in

OF THE UNITED STATES, 369

the exercise of a jurisdiction which has already right- 1821.
folly attached, have a right to pronounce on the
sufficiency and validity of the defence ? It would
be extremely difficult, upon any legal principles, to
give a negative answer to these inquiries. Innume-
rable instances of the same sort might be stated in
illustration of the position ; and unless the State
Courts could sustain jurisdiction in such cases, this
clause of the sixth article would be without meaning
or effect, and public mischiefs of a most enormous
magnitude would inevitably ensue."fl So the Court
afterwards say, in the context of the passage before
cited, speaking of the inadequacy of the remedy of
removal of suits to accomplish the purposes of the
constitution, " in respect to criminal prosecutions,
the difficulty seems admitted to be insurmountable,"*
&c. What difficulty ? The difficulty of controlling
them by the Courts of the United States without the
aid of a writ of error, because those Courts could
take no original cognizance of this description of
cases, and they could not be removed before judg-
ment. As, then, the federal Courts have no original
jurisdiction of cases arising merely under the consti-
tution, laws, and treaties of the Union, it follows,
that the clause of the constitution which speaks of
.cases in which a State shall be a party, does not
apply to it : and the appellate power, now in ques-
tion, is to be sought for in that part of the same ar-
ticle which declares, that the judicial power of the
Union shall extend to all cases arising under the

a 1 Wheat. Rep. 341. b I Wheat. Rep. 350.

Vol. VI. 47

$70 CASES IN THE SUPREME COURT

i8«i. constitution) laws, and treaties of the Union, cou-
SJT^"%' pled with the subsequent provision, which declares,
v. that in all cases to which that judicial power ex-
Vinguua. tends, this Court shall have appellate, where it has
not original jurisdiction, with such exceptions, and
under such regulations as Congress may prescribe.
That it has appellate jurisdiction in all cases arising
under the constitution, laws, and treaties of the Uni-
ted States, is established by the authority of the case
of Martin v. Hunter : and that this appellate power
is competent to control the State Courts, is also
proved by that case.a There is, therefore, no open
question but this, does the fact of a State being a
party prosecutor in the State Court, make this case
an exception, and take it out of the general rule ?
Upon the plain policy and purpose of the constitution
it does not. This jurisdiction has already been
shown to be different in its nature from the original
jurisdiction which was exercised over States before
the amendment of the constitution. But that other
jurisdiction will go far to show, that there is nothing
unnatural in giving appellate power over State
Counts in cases where a State is a party plaintiff.
The constitution authorized direct coercion over
States or private citizens indifferently. The amend-
ment has partly taken this away ; but the spirit of
the constitution is still manifested by the former pro-
vision. The same constitution also authorized ap-
pellate control over State Courts ; and is it natural
that it should condemn the same control, merely be-

a 1 Wheat. Rep. 304.

Virginia.

OP THE UNITED STATES. 371

cause a State has obtained the judgment to be re- mi.
vised ? The constitution had no delicacy with re- s^?~*'

J Cohens

gard to States on this matter. It considered them _ v.
as directly amenable where original jurisdiction can
be exerted. Why not empower its tribunals to affect
their interests in an appellate form, by acting, not on
the State, but on its Courts, as unquestionably it
does in all cases where individuals are parties below ?
The appellate power is trifling, compared with the
original as it formerly stood: and a constitution
which gave the last could have no scruples about the
first. The appellate control is respectful to the State
sovereignties compared with the original; and it
stands upon high considerations of self defence, upon
grounds of constitutional necessity not applicable to
the other. The suability of the States might have
been dispensed with, and the constitution still be
safe. But the judicial control of the Union over
State encroachments and usurpations, was indispen-
sable to the sovereignty of the constitution — to its
integrity — to its very existence. Take it away, and
the Union becomes again a loose and feeble confe-
deracy— a government of false and foolish confi-
dence— a delusion and a mockery ! Why is it in
cases, in which individuals are parties in a State
Court, that the judgment may be revised in this
Court ? Because the judiciary of the Union ought
to possess ample power to preserve the constitution,
and laws, and treaties of the Union, from violation
by other judicatures. Its judicial powers should be
commensurate with its other powers, and rights, and
prerogatives* They might else be evaded and

#72 CASES IN THE SUPREME COURT

i82i. trampled under foot by judicatures in which the

*££** constitution does not confide. This high motive

▼• . is as strong, at least, where a State is plaintiff or

Virginia.

prosecutor in its own Courts, as where it is not.
Indeed, it is far stronger ; for all the motives to ju-
dicial leanings and partialities here operate in their
fullest force, though the State judges may not be
conscious of their influence. The sovereignty of
the State law — State pride— State interests — are
here in paramount vigour as inducements to error ;
and judicial usurpation is countenanced by legislative
support and popular prejudice. Let the Court look
to the consequences of this distinction. A State
passes a law repugnant to the national constitution.
It gives a remedy in the name of an individual— a
common informer. You may control this law, if the
State judiciary acts upon it. But the State may
avoid this (as it seems) by authorizing the remedy
in its own name ; and you thus lose your protecting
jurisdiction over the subject, although you might still
exercise it, as in the other case, in the inoffensive
mode of confining your control to the State judicia-
ry. The whole constitution of the Union might
thus be overturned unless force should be resorted
to : and the object of the constitution was to avoid
force, by giving ordinary judicial power of correc-
tion.

It has been said that a sovereign State of the
Union is not amenable to judicature, unless made so
by express words — eo nomine. I deny this as re-
spects appellate jurisdiction, which acts, not on the
State, but on its Courts. The words of the consti-

OP THE UNITED STATES, 373

tution are sufficiently express, and all reason is on mi.
that side : especially since it is, or must be admitted,
that these Courts may be thus controlled, and the le-
gislative power of the State be reached through
them, and controlled also : and especially too, when
the constitution has not scrupled, in other cases, to
subject the States to direct control.

But it is contended, that there are cases arising
under the constitution and laws of the Union, which,
from their very nature, are not the subjects of judi-
cial cognizance, and consequently are exceptions out
of the general grant of judicial power under the con*
stitution ; such as the prohibition to the States to
grant titles of nobility, &c : and that the present
case may be such an exception. But the very sup-
position admits, that if the case in question is suited
to the exertion of judicial power, it is not an excep-
tion : and the moment a State judiciary intervenes,
judicial jurisdiction can, and ought to be exerted. It
is unnecessary to inquire how the case must, in gene-
ral, exist, in order to become the proper object of
judicial cognizance ; for here it does exist in a pro-
per shape for that purpose. A State Court has in-
tervened, and the regular appellate power of this
Court may act. Nor does the proof of some excep-
tions arising from necessity, establish other excep-
tions free from that necessity. Many unlawful
things cannot be restrained by judicature : but does
it follow that where they can be restrained, they
shall not ?

Again : It is said that the States may destroy the
federal Government at their pleasure, merely by for-

374 CASES IN THE SUPREME COURT

18^1. bearing to elect Senators, and to provide for the elec-
tion of a President and Representatives, and that the
authority of the Union is incompetent to coerce
them. Such extreme arguments prove nothing to
the present purpose : but suppose the States could
not be coerced in such a case to do their duty, be-
cause no intervening Court or agent is necessary to
the accomplishment of such a desperate purpose,
does this prove that you cannot defensively control
active violations of the constitution or laws, when a
controllable judicature or agent intervenes to perpe-
trate these violations ?

It is also said, that this is a prosecution under a
penal statute, and that criminal cases peculiarly be-
long to the domestic forum. The answer is, that
so was the case of M'Culloch v. Maryland, a qui
tarn action, under a penal law of that State, giving
one half of the penalty to the State, and the other
half to the informer ; yet this Court did not consider
the nature of the suit, or the circumstance of a State
being a party, as forming a valid objection to the
jurisdiction.0 Nobody objects to a State enforcing
its own penal laws: all that is claimed is, that
in executing them, it should not violate the laws
of the Union, which are paramount : Sic utere tuo
ut alienum non Icedas.

The other suppositions which have been stated of
bills of attainder and ex post facto laws passed by the
States, and attempted to be executed, but decided
by this Court to be unconstitutional, and yet the

a 4 Wheat. Rep. 316.

OP THE UNITED STATES. 375

State Courts persisting in carrying them into effect, mi.
even in capital cases, are too wild and extravagant,
to illustrate any question which can ever practically
arise.

Mr. Chief Justice Marshall delivered the opinion March dd.
of the Court.

This is a writ of error to a judgment rendered in
the Court of Hustings for the borough of Norfolk,
on an information for selling lottery tickets, contrary
to an act of the Legislature of Virginia. In the
State Court, the defendant claimed the protection
of an act of Congress. A case was agreed between
the parties, which states the act of Assembly on
which the prosecution was founded, and the act of
Congress on which the defendant relied, and con-
cludes in these words : " If upon this case the Court
shall be of opinion that the acts of Congress before
mentioned were valid, and, on the true construction
of those acts, the lottery tickets sold by the defend*
ants as aforesaid, might lawfully be sold within the
State of Virginia, notwithstanding the act or statute
of the general assembly of Virginia prohibiting such
sale, then judgment to be entered for the defend-
ants : And if the Court should be of opinion that
the statute or act of the General Assembly of the
State of Virginia, prohibiting such sale, is valid,
notwithstanding the said acts of Congress, then
judgment to be entered that the defendants are
guilty, and that the Commonwealth recover against
them one hundred dollars and costs."

376 CASES IN THE SUPREME COURT

1821. Judgment was rendered against the defendants ;

and the Court in which it was rendered being the
highest Court of the State in which the cause was
cognizable, the record has been brought into this
Court by writ of error/

The defendant in error moves to dismiss this writ,
for want of jurisdiction.

In support of this motion, three points have been
made, and argued with the ability which the im-
portance of the question merits. These points
are —

1st- That a State is a defendant.

2d, That no writ of error lies from this Court to
a State Court

3d, The third point has been presented in dif-
ferent forms by the gentlemen who have argued it.
The counsel who opened the cause said, that the
want of jurisdiction was shown by the subject mat-
ter of the case. The counsel who followed him
said, that jurisdiction was not given by the judiciary
act. The Court has bestowed all its attention on
the arguments of both gentlemen, and supposes that
their tendency is to show that this Court has no ju-
risdiction of the case, or, in other words, has no
right to review the judgment of the State Court,
because neither the constitution nor any law of the
United States has been violated by that judgment.

The questions presented to the Court by the two

a The plaintiff in error prayed an appeal from the judgment
of the Court of Hustings, bat it was refused, on the ground
that there was no higher State tribunal which could take cogni-
zance of the case.

OF THE UNITED STATES. 377

first points made at the bar are of great magnitude, am,
and may be truly said vitally to affect the Union.
They exclude the inquiry whether the constitution
and laws of the United States have been violated
by the judgment which the plaintiffs in error seek to
review : and maintain that, admitting such viola*
tion, it is not in the power of the government to
apply a corrective. They maintain that the nation
does not possess a department capable of restraining
peaceably, and by authority of law, any attempts
which may be made, by a part, against the legiti-
mate powers of the whole ; and that the government
is reduced to the alternative of submitting to such
attempts, or of resisting them by force. They main-
tain that the constitution of the United States has
provided no tribunal for the final construction of it-
self, or of the laws or treaties of the nation ; but that
this power may be exercised in the last resort by
the Courts of every State in the Union. That the
constitution, laws, and treaties, may receive as many
constructions as there are States ; and that this is not
a mischief, or, if a mischief, is irremediable. These
abstract propositions are to be determined ; for he
who demands decision without permitting inquiry,
affirms that the decision he asks does not depend on
inquiry.

If such be the constitution, it is the duty of the
Court to bow with respectful submission to its pro-
visions. If such be not the constitution, it is equally
the duty of this Court to say so ; and to perform that
task which the American people have assigned to
the judicial department.

Vol. VI. 48

578 CASES IN THE SUPREME COURT

1821. 1st. The first question to be considered is, whe-

ther the jurisdiction of Ibis Court is excluded by the
character of the parties, one of them being a State,

XS^die- 9nA the other a citizen of that State ?
c&rt, rf xmd£ The second section of the third article of the con-
oftS j5c£! stitution defines the extent of the judicial power of
? 2a,0ulBot the United States. Jurisdiction is given to the

excluded by _

the dream- Courts of the Union in two classes of cases. In

stance of the

tte"£rtL, * the first, their jurisdiction depends- on the character
f£$££mi of the cause, whoever may be the parties. This
■oSoth2f aSiSt class comprehends "all cases in law and equity ari-
sing under this constitution, the laws of the United
States, and treaties made, or which shall be made,
under their authority." This clause extends the ju-
risdiction of the Court to all the cases described,
without making in its terms any exception whatever,
and without any regard to the condition of the party.
If there be any exception, It is to be implied against
the express words of the article.

In the second class, the jurisdiction depends en-
tirely oil the character of the parties. In this are
comprehended " controversies between two or more
States, between a State and citizens of another
State," (C and between a State and foreign States,
citizens or subjects." If these be the parties, it is
entirely unimportant what may be the subject of
controversy. Be it what it may, these parties have a
constitutional right to come into the Courts of the
Union.

The counsel for the defendant in error have sta-
ted that the cases which arise under the constitution
must grow out of those provisions which are capa-

OF THE UNITED STATES. 379

Me of self-execution ; examples of which are to be i8w.
found in the 2d section of the 4th article, and in the
10th section of the 1st article.

A case which arises under a law of the United
States must, we are likewise told, be a right given
by some act which becomes necessary to execute
the powers given in the constitution, of which the
law of naturalization is mentioned as an example

The use intended to be made of this exposition of
the first part of the section, defining the extent of the
judicial power, is not clearly understood. If the in-
tention be merely to distinguish cases arising under
the constitution, from those arising under a law, for
the sake of precision in the application of this argu-
ment, these propositions will not be controverted. If
it he to maintain that a case arising under the con-
stitution, or a law, must be one in which a party
comes into Court to demand something conferred on
him by the constitution or a law, we think the con-
struction too narrow. A case in law or equity con-
sists of the right of the one party, as well as of the
other, and may truly be said to arise under the con-
stitution or a law of the United States, whenever
its correct decision depends on the construction of
either. Congress seems to have intended to give
its own construction of this part of the constitution
in the 26th section of the judiciary act ; and we per-
ceive no reason to depart from that construction.

The jurisdiction of the Court, then, being ex-
tended by the letter of the constitution to all cases
arising under it, or under the laws of the United
States, it follows that those who would withdraw

380 CASES IN THE SUPREME COURT

1821. any case of this description from that jurisdiction,
must sustain the exemption they claim on the spirit
and true meaning of the constitution, which spirit
and true meaning must be so apparent as to overrule
the words which its framers have employed.

The counsel for the defendant in efror have under-
taken to do this ; and have laid down the, general
proposition, that a sovereign independent State is not
suable, except by its own consent.

This general proposition will not be controverted.
But its consent is not requisite in each particular
case. It may he given in a general law. And if a
State has surrendered any portion of its sovereignty,
the question whether a liability to suit be a part of
this portion, depends on the instrument by which the
surrender is made. If, upon a just construction 'of
that instrument, it shall appear that the State has
submitted to be sued, then it has parted with this
sovereign right of judging in every case on the jus-
tice of its own pretensions, and has entrusted that
power to a tribunal in whose impartiality it confides.

The American States, as well as the American
people, have believed a close and firm Union to be
essential to their liberty and to their happiness.
They have been taught by experience, that this
Union cannot exist without a government for the
whole ; and they have been taught by the same ex-
perience that this government would be a mere sha-
dow, that must disappoint all their hopes, unless in-
vested with large portions of that sovereignty which
belongs to independent States. Under the influence
of this opinion, and thus instructed by experience,.

OF THE UNITED STATES. 381

the American people, in the conventions of their re- isti.
speed ve States, adopted the present constitution.
• If it could he doubted, whether from its nature, it
were not supreme in all cases where it is empowered
to act, that doubt would be removed by the declara-
tion, that " this constitution, and the laws of the
United States, which shall be made in pursuance
thereof, and all treaties made, or which shall be
made, under the authority of the United States, shall
be the supreme law of the land ; and the judges in
every State shall be bound thereby ; any thing in
the constitution or laws of auy State to the contrary
notwithstanding."

This is the authoritative language of the American
people ; and, if gentlemen please, of the American
States. It marks, with lines too strong to be mis-
taken, the characteristic distinction between the go-
vernment of the Union, and those of the States.
The general government, though limited as to its
objects, is supreme with respect to those objects.
This principle is a part of the constitution ; and if
there be any who deny its necessity, none can deny
its authority.

To this supreme government ample powers arc
confided ; and if it were possible to doubt the great
purposes for which they were so confided, the peo-
ple of the United States have declared, that they are
given " in order to form a more perfect union,
establish justice, ensure domestic tranquillity, provide
for the common defence, promote the general wel-
fare, and secure the blessings of liberty to themselves
and their posterity."

382 CASES 1N THE SUPREME COURT

1621. With the ample powers confided to this supreme

government, for these interesting purposes, are con*
nected many express and important limitations on
the sovereignty of the States, which are made for
the same purposes. The powers of the Union, on
the great subjects of war, peace, and commerce, and
on many others, are in themselves limitations of the
sovereignty of the States ; but in addition to .these,
the sovereignty of the States is surrendered in many
instances where the surrender can only operate to the
benefit of the people, and where, perhaps, no other
power is conferred on Congress than a conservative
power to maintain the principles established in the
constitution. The maintenance of these principles
in their purity, is certainly among the great duties
of the government. One of the instruments by
which this duty may be peaceably performed, is the
judicial department. It is authorized to decide all
cases of every description, arising under the consti-
tution or laws of the United States. From this
general grant of jurisdiction, no exception is made
of those cases in which a State may be a party.
When we consider the situation of the government
of the Union and of a State, in relation to each
other ; the nature of our constitution ; the subordina-
tion of the State governments to that constitution ;
the great purpose for which jurisdiction over all
cases arising under the constitution and laws of the
United States, is confided to the judicial department ;
are we at liberty to insert in this general grant, an
exception of those cases in which a State may be a

OF foffi UNITED STATES.

383

party ? Will the spirit of the constitution justify this 1821.
attempt to control its words ? We think it will not.
We think a case arising under the constitution or
laws of the United States, is cognizable in the
Courts of the Union, whoever may be the parties to
that case. *

Had any doubt existed with respect to the just
construction of this part of the section, that doubt
would have been removed by the enumeration of
those cases to which the jurisdiction of the federal
Courts is extended, in consequence of the character
of the parties. In that enumeration, we find " con-
troversies between two or* more States, between a
State and citizens of another State," " and between
a State and foreign States, citizens, or subjects."

One of the express objects, then, for which the
judicial department was established, is the decision
of controversies between States, and between a
State and individuals. The mere circumstance, that
a State is a party, gives jurisdiction to the Court.
How, then, can it be contended, that the very same
instrument, in the very same section, should be so
construed, as that this same circumstance should
withdraw a case from the jurisdiction of the Court,
where the constitution or law& of the United States
are supposed to have been violated ? The constitu-
tion gave to every person having a claim upon a
State, a right to submit his case to the Court of the
nation. However unimportant his claim might be,
however little the community might be interested in
its decision, the framers of our constitution thought
it necessary for the purposes of justice, to provide a

384 CASES IN THE SUPREME COURT

i82i. tribunal as superior to influence as possible, in which
that claim might be decided. Can it be imagined,
that the same persons considered a case involving the
constitution of our country and the majesty of the
laws, questions in which every American citizen
must be deeply interested, as witflHrawn from this
tribunal, because a State is a party ?

While weighing arguments drawn from the nature
of government, and from the general spirit of an in-
strument, and urged for the purpose of narrowing the
construction which the words of that instrument
seem to require, it is proper to place in the opposite
scale those principles, drawn from the same sources,
which go to sustain the words in their full operation
and natural import. One of these, which has been
pressed with great force by the counsel for the plain*
tiffs in error, is, that the judicial power of every well
constituted government must be co-extensive with
the legislative, and must be capable of deciding every
judicial question which grows out of the constitution
and laws.

If any proposition may be considered as a politi-
cal axiom, this, wc think, may be so considered.
In reasoning upon it as an abstract question, there
would, probably, exist no contrariety of opinion re-
specting it. Every argument, proving the necessity
of the- department, proves also the propriety of giving
this extent to it. We do not mean to say, that the
jurisdiction of the Courts of the Union should be
construed to be co-extensive with the legislative,
merely because it is fit that it should be so ; but we
mean to say, that this fitness furnishes an argument

OF THE UNITED STATES. 386

in construing the constitution which ought never to ism.
be overlooked, and which is most especially entitled
to consideration, when we are inquiring, whether
the words of the instrument which purport to es-
tablish this principle, shall be contracted for the pur-
pose of destroying it.

The mischievous consequences of the construction
contended for on the part of Virginia, are also en-
titled to great consideration. It would prostrate, it
has been said, the government and its laws at the
feet of every State in the Union. And would not
this be its effect ? What power of the government
could be executed by its own means, in any State
disposed to resist its execution by a course of legis-
lation ? The laws must be executed by individuals
acting within the several States. If these individuals
may be exposed to penalties, and if the Courts of
the Union cannot correct the judgments by which
these penalties may be enforced, the course of the
government may be, at any time, arrested by the
will of one of its members. Each member will pos-
sess a veto on the will of the whole.

The answer which has been given to this argu-
ment, does not deny its truth, but insists that con-
fidence is reposed, and may be safely reposed, in the
State institutions ; and that, if they shall ever be-
come so insane or so wicked as to seek the destruc-
tion of the government, they may accomplish their
object by refusing to perform the functions assigned
to them.

We readily concur with the counsel for the de-

Vol VI. 49

386 CASES IN THE SUPREME COURT

1821. fendant, in the declaration, that the cases which hpve
been put of direct legislative resistance for the pur-
pose of opposing the acknowledged powers of the
government, are extreme cases, and in the hope, that
they will never occur ; but we cannot help believing,
that a general conviction of the total incapacity of
the government to protect itself and its laws in such
cases, would contribute in no inconsiderable degree
to their occurrence.

Let it be admitted, that the cases which have been
put are extreme and improbable, yet there are gra-
dations of opposition to the laws, far short of those
cases, which might have a baneful influence on the
affairs of the nation. Different States may entertain
different opinions on the true construction of the
constitutional powers of Congress. We know, that
at one time, the assumption of the debts contracted
by the several States, during the war of our revolu-
tion, was deemed unconstitutional by some of them.
We know, too, that at other times, certain taxes, im-
posed by Congress, have been pronounced unconsti-
tutional. Other laws have been questioned partial-
ly, while they were supported by the great majority
of the American people. We have no assurance that
we shall be less divided than we have been. States
may legislate in conformity to their opinions, and
may enforce those opinions by penalties. It would
be hazarding too much to assert, that the judicatures
of the States will be exempt from the prejudices by
which the legislatures and people are influenced, and
will constitute perfectly impartial tribunals. In
mpny States the judges are dependent for office and

OP THE UNITED STATES, 381

for salary on the will of the legislature. The con- isml
stitution of the United States furnishes no security s^y^m0

• Cohens

against the universal adoption of this principle. ▼.
When we observe the importance which that consti- V"*""3,
tution attaches to the independence of judges, we are
the less inclined to suppose that it can have intend-
ed to leave these constitutional questions to tribunals
where this independence may not exist, in all cases
where a State shall prosecute an individual who
claims the protection of an act of Congress. These
prosecutions may take place even without a legisla*
tiverot. A person making a seizure under an act
of Congress, may be indicted as a trespasser, if force
has been employed* and of this a jury may judge.
How extensive may be the mischief if the first deci-
sions in such cases should be final !

These collisions may take place in times of no
extraordinary commotion. But a constitution is
framed for ages to come, and is designed to approach
immortality as nearly as human institutions can ap-
proach it. Its course cannot always be tranquil. It
is exposed to storms and tempests, and its framers
must be unwise statesmen indeed, if ,they have not
provided it, as far as its nature will permit, with the
means of self-preservation from the perils it may be
destined to encounter. No government ought to be
so defective ita its organization, as not to contain
within itself the means of securing the execution of
its own laws against other dangers than those
which occur every day. Courts of justice are the
means most usually employed ; and it is reasonable
to expect that a government should repose on its

S&8 CASES IN THE SUPREME, COURT

1681. own Courts/ rather than on others. There is cer-
taioly nothing in the circumstances under which our
constitution was formed ; nothing in the history of
the times, which Would justify the opinion that the
confidence reposed in the States was so implicit as
to leave in them and their tribunals, the power of re-
sisting or defeating, in the form of law, the legitimate
measures of the Union. The requisitions of Con-
gress, under the confederation, were as constitution-
ally obligatory as the laws enacted by the present
Congress. That they were habitually disregarded,
is a fact of universal notoriety. With the knowledge
of this fact, and under its full pressure, a convention
was assembled to change the system. Is it so im-
probable that they should confer on the judicial de-
partment the power of construing the constitution
and laws of the Union in every case, in the last re-
sort, and of preserving them from all violation from
every quarter, so far as judicial decisions can pre-
serve them, that this improbability should essentially
affect the construction of the new system ? We are
told, and we are truly told, that the great change
which is to give efficacy to the present system, is its
ability to act on individuals directly, instead of act-
ing through the instrumentality of State govern-
ments. But, ought not this ability, in reason and
sound policy, to be applied directly to the protec-
tion of individuals employed in the execution of the
laws, as well as to their coercion. Your laws reach
the individual without the aid of any other power ;
why may they not protect him from punishment for
performing his duty ia executing them ?

OF THE UNITED STATES. 389

The counsel for Virginia endeavour to obviate the 1821.
force of these arguments by saying, that the dangers
they suggest, if not imaginary, are inevitable ; that
the constitution can make no provision against them ;
and that, therefore, in construing that instrument,
they ought to be excluded from our consideration.
This state of things, they say, cannot arise until
there shall be a disposition so hostile to the present
political system as to produce a determination to
destroy it ; and, 'when that determination shall be
produced, its effects will not be restrained by parch-
ment stipulations. The fate of the constitution will
not then depend on judicial decisions. But, should
no appeal be made to foye, the States can put an
end to the government by refusing to act. They
have only not to elect Senators, and it expires with-
out a struggle.

It is very true that, whenever hostility to the ex-
isting system shall become universal, it will be also
irresistible. The people made the constitution, and
the people can unmake it. It is the creature of their
will, and lives only by their will. But this supreme
and irresistible power to make or to unmake, resides
only in the whole body of the people ; not in any
sub-division of them. The attempt of any of the
parts to exercise it is usurpation, and ought to be re-
pelled by those to whom the people have delegated
their power of repelling it.

The acknowledged inability of the government,
then, to sustain itself against the public will, and,
by force or otherwise, to control the whole nation,
is no sound argument in support of its constitutional

390 CASES IN THE SUPREME COURT

1821. inability to preserve itself against a section of the
nation acting in opposition to the general will.

It is true, that if all the States, or a majority of
them, refuse to elect Senators, the legislative powers
of the Union will be suspended. But if any one
State shall refuse to elect them, the Senate will not,
on that account, be the less capable of performing alt
its functions. The argument founded on this fact
would seem rather to prove the subordination of the
parts to the whole, than the complete independence
of any one of them. The framers of the constitu-
tion were, indeed, unable to make any provisions
which should protect that instrument against a ge-
neral combination of th^ States, or of the people,
for its destruction ; and, conscious of this inability,
^they have not made the attempt. But they were
able to provide against the operation of measures
adopted in any one State, whose tendency might be
to arrest the execution of the laws, and this it was
the part of true wisdom to attempt. We think they
have attempted it.

~ It has been also urged, as an additional objection
to the jurisdiction of the Court, that cases between a
State and one of its own citizens, do not come with-
in the general scope of the constitution ; and were
obviously never intended to be made cognizable in
the federal Courts. The State tribunals might be
suspected of partiality in cases between itself or its
citizens and aliens, or the citizens of another State,
but not in proceedings by a State against its own ci-
tizens. That jealousy which might exist in the
first case, could not exist in the last, and therefore
the judicial power is not extended to the last

OF THE UNITED STATES. 391

This is very true, so far as jurisdiction depends on 1821.
the character of the parties; and the argument
would have great force if urged to prove that this
Court could not establish the demand of a citizen
upon his State, but is not entitled to the same force
when urged to prove that this Court cannot inquire
whether the constitution or laws of the United
States protect a citizen from a prosecution instituted
against him by a State. If jurisdiction depended
entirely on the character of the parties, and was not
given where the parties have not an original right to
come into Court, that part of the 2d section of the
3d article, which extends the judicial power to all
cases arising under the constitution and laws of the
United States, would be mere surplusage. It is to
give jurisdiction where the character of the parties
would not give it, that this very important part of
the clause was inserted. It may be true, that the
partiality of the State tribunals, in ordinary contro-
versies between a State and its citizens, was not ap-
prehended, and therefore the judicial power of the
Union was not extended to such cases ; but this was
not the sole nor the greatest object for which this
department was created. A more important, a
much more interesting object, was the preservation
of the constitution and laws of the United States, so
far as they can be preserved by. judicial authority ;
and therefore the jurisdiction of the Courts of
the Union was expressly extended to all cases
arising under that constitution and those laws.
If the constitution or laws may be violated by pro-

392 CASES IN THE SUPREME COURT

i82i. ceedings instituted by a State against its own citi-
zens, and if that violation may be such as essentially
to affect the constitution and the laws, such as to
arrest the progress of government in its constitu-
tional course, why. should these cases be excepted
from that provision which expressly extends the ju-
dicial power of the Union to all cases arising under
the constitution and laws ?

After bestowing on this subject the most atten-
tive consideration, the Court can perceive no reason
founded on the character of the parties for introdu-
cing an exception which the constitution has not
made ; and we think that the judicial power, as
originally .given, extends to all cases arising under
the constitution or a law of the United States, who-
ever may be the parties.
tkT^ff'lhu ^ has been also contended, that this jurisdiction,
^ri8ninag un". if given, is original, and cannot be exercised in the

der the consti- ... r

totion, laws, appellate form.

and treaties of

the union, The words of the constitution are, " in all cases

where a State '

be^swciMdm affecting ambassadors, other public ministers, and

torm. appellate consuls, and those in which a State shall be a party,

the Supreme Court shall have original jurisdiction.

In all the other cases before mentioned, the Supreme

Court shall have appellate jurisdiction."

This distinction between original and appellate
jurisdiction, excludes, we are told, 'in all cases, the
exercise of the one where the other is given.

The constitution gives the Supreme Court original
jurisdiction in certain enumerated cases, and gives it
appellate jurisdiction in all others- Among those in
which jurisdiction must be exercised in the appellate

OP THE UNITED STATES. 3£S

form, are cases arising under the constitution and 1821
laws of the United States. These provisions of the
constitution are equally obligatory, and are to be
equally respected* If a State be a party, the juris-
diction of this Court is original ; if the case arise
under a constitution or a law, the jurisdiction is ap-
pellate. But a case to which a State is a party may
arise under the constitution or a law of the United
States. What rule is applicable to such a case ?
What, then, becomes the duty of the Court ? Cer-
tainly, we think, so to construe the constitution as to
give effect to both provisions, as far as it is possible
to reconcile them, and not to permit their seeming
repugnancy to destroy each other. We must endea-
vour so to construe them as to preserve the true intent
and meaning of the instrument.

In one description of cases, the jurisdiction of the
Court is founded entirely on the character of the
parties ; and the nature of the controversy is not
contemplated by the constitution. The character of
the parties is every thing, the nature of the case no-
thing. In the other description of cases, the juris-
diction is founded entirely on the character of the
case, and the parties are not contemplated by the
constitution. In these, the nature of the case is every
thing, the character of the parties nothing. When,
then, the constitution declares the jurisdiction, in
cases where a State shall be a party, to be original,
and in all cases arising under the constitution or a law,
to be appellate — the . conclusion seems irresistible,
that its framers designed to include in the first class

Vol. VI. 50

394 CASE8 IN THE SUPREME COURT

isti. those cases ia which jurisdiction is given, because *

Cofawtf

State is a party ; and to include ia the second, those
▼; in which jurisdiction is given, because the case arises
u*m*' under the constitution or a law.

This reasonable construction is rendered necessary
by other considerations.

That the constitution or a law of the United
States, is involved in a case, and makes a part of it,
may appear in the progress of a cause, in which the
Courts of the Union, but for that circumstance!
would have no jurisdiction, and which of conse-
quence could not originate in the Supreme Court.
In such a case, the jurisdiction can be exercised only
in its appellate form. To deny its exercise in this
form is to deny its existence, and would be to con-
strue a clause, dividing the power of the Supreme
• Court, in such manner, as in a considerable degree to

defeat the power itself. All must perceive, that this
construction can be justified only where it is abso-
lutely necessary. We do not think the article under
" consideration presents that necessity.

It is observable, that in this distributive clause, no
negative words are introduced. This observation is
hot made for the purpose of contending, that the
legislature may " apportion the judicial power be-
tween the Supreme and inferior Courts according to
its will." That would be, as was said by this Court
in the case of Marbury v. Madison, to render the
distributive clause " mere surplusage," to make it
u form without substance." This cannot, therefore,
be the true construction of the article.

OF THE UNITED STATES. 395

But although the absence of negative words will teat.

Cohens

not authorize the legislature to disregard the distri-
bution of the power previously granted, their absence " ▼.
will justify a sound construction of the whole article, h**"*-
so as to give every part its intended effect It is
admitted, that " affirmative words are often, in their
operation, negative of other objects than those affirm-
ed ;" and that where " a negative or exclusive sense
must be given to them, or they have no operation at
all," they must receive that negative or exclusive
sense. But where they have full operation without
it ; where it would destroy some of the most import-
ant objects for which the power was created ; then,
we think, affirmative words ought not to be con-
strued negatively.

The constitution declares, that in cases where a
State is a party, the Supreme Court shall have ori-
ginal jurisdiction ; but does not say that its appellate
jurisdiction shall not be exercised in cases where,
from their nature, appellate jurisdiction is given,
whether a State be or be not a party. It may be
conceded, that where the case is of such a nature as
to admit of its originating in the Supreme Court, it
ought to originate there ; but where, from its nature,
it cannot originate in that Court, these words ought
not to be so construed as to require it. There are
many cases in which it would be found extremely
difficult, and subversive of the spirit of the constitn*
tion, to maintain the construction, that appellate ju-
risdiction cannot be exercised where one of the par-
ties might sue or be sued in this Court.

The constitution defines the jurisdiction of th*

3& CASES IN THE SUPREME COURT

last. Supreme Court, but does not define that of the in-
ferior Courts. Can it be affirmed, that a State might
not sue the citizen of another State in a Circuit
Court ? Should the Circuit Court decide for or
against its jurisdiction, should it dismiss the suit, or
give judgment against the State, might not' its deci-
sion be revised in the Supreme Court ? The argu-
ment is, that it could not ; and the very clause which
is urged to prove, that the Circuit Court could give
no judgment in the case, is also urged to prove, that
its judgment is irreversible. A supervising Court,
whose peculiar province it is to correct the errors of
an inferior Court, has no power to correct a judg-
ment given without jurisdiction, because, in the same
case, that supervising Court has original jurisdic-
tion. Had negative words been employed, it would
be difficult to give them this construction if they
Would admit of any other. But, without : negative
words, this irrational construction can never be main-
tained.

So, too, in the same clause, the jurisdiction of the
Court is declared to be original, " in cases affecting
ambassadors, other public ministers, and consuls."
There is, perhaps, no part of the article under consi-
deration so much required by national policy as this ;
unless it be that part which extends the judicial
power " to all cases arising under the constitution,
laws, and treaties of the United States." It has
been generally held, that the State Courts have a con-
current jurisdiction with the federal Courts, incases
to which the judicial power is extended, unless the
jurisdiction of the federal Courts be rendered exclu-

OP THE UNITED STATES. 397

aive by the words of the third article. If the words, mi.
" to all cases/' give exclusive jurisdiction in cases
affecting foreign ministers, they may also give ex-
clusive jurisdiction, if such be the will of Congress,
in cases arising under the constitution, laws, and
treaties of the United States. Now, suppose an in-
dividual were to sue a foreign minister in a State
Court, and that Court were to maintain its jurisdic-
tion, and render judgment against the minister, could
it be contended, that this Court would be incapable
of revising such judgment, because the constitution
had given it original jurisdiction in the case ? If
this could be maintained, then a clause inserted for
the purpose of excluding the jurisdiction of all other
Courts than this, in a particular case, would have
the effect of excluding the jurisdiction of this Court
in that very case, if the suit were to be brought in
another Court, and that Court were to assert juris-
diction- This tribunal, according to the argument
which has been urged, could neither revise the judg-
ment of such other Court, nor suspend its proceed-
ings : for a writ of prohibition, or any other similarv
writ, is in the nature of appellate process.

Foreign consuls frequently assert, in our Prize
Courts, the claims of their fellow subjects. These
suits are maintained by them as consuls. The ap-
pellate power of this Court has been frequently ex-
ercised in such cases, and has never been questioned.
It would be extremely mischievous to withhold its
exercise. Yet the consul is a party on the record.
The truth is, that where the words confer only ap-
pellate jurisdiction, original jurisdiction is most

398 CASES IN THE SUPREME COURT

1821. clearly not given ; but where the words admit of
appellate jurisdiction, the power to take cognizance
of the suit originally, does not necessarily negative
the power to decide upon it on an appeal, if it may
originate in a different Court.

It is, we think, apparent, that to give this distri-
butive clause the interpretation contended for, to
give to its affirmative words a negative operation, in
every possible case, would, in some instances, defeat
the obvious intention of the article. Such an inter-
pretation would not consist with those rules which,
from time immemorial, have guided Courts, in their
construction of instruments brought under their con-
sideration. It must, therefore, be discarded. Every
part of the article must be taken into view, and that
construction adopted which will consist with its
words, and promote its general intention. The
Court may imply a negative from affirmative words,
where the implication promotes, not where it defeats
the intention.

If we apply this principle, the correctness of
Which we believe will not be controverted, to the
distributive clause under consideration, the result,
we think, would be this : the original jurisdiction of
the Supreme Court, in cases where a State is a
party, refers to those cases in which, according to
the grant of power made in the preceding clause,
jurisdiction might be exercised in consequence of
the character of the party, and an original suit
might be instituted in any of the federal Courts; not
to those cases in which an original suit might not be

OF THE UNITED STATES.

instituted m a federal Court Of the last descrip- mi.
tion, is every case between a State and its citizens,
and, perhaps, every case in which a State is enforcing
its penal laws. In such cases, therefore, the Supreme
Court cannot take original jurisdiction. In every
other case, that is, in every case to which the judi-
cial power extends, and in which original jurisdic-
tion is not expressly given, that judicial power shall
be exercised in the appellate, and only in the appel-
late form. The original jurisdiction of this Court
cannot be enlarged, but its appellate jurisdiction may
be exercised in every case cognizable under the third
article of the constitution, in the federal Courts, in
which original jurisdiction cannot be exercised ; and
the extent of this judicial power is to be measured,
not by giving the affirmative words of the distribu-
tive clause a negative operation in every possible
case, but by giving their true meaning to the words
Which define its extent.

The counsel for the defendant in error urge, in
opposition to this rule of construction, some dicta of
the Court, in the case of Marbury v. Madison.

It is a maxim not to be disregarded, that general
expressions, in every opinion, are to be taken in con-
nection with the case in which those expressions are
used. If they go beyond the case, they may be re-
spected, but ought not to control the judgment in a
subsequent suit when the very point is presented for
decision. The reason of this maxim is obvious. The
question actually before the Court is investigated
with care, and considered in its full extent. Other
principles which may serve to illustrate it, are con-

4Q0 CASES IN THE SUPREME COURT

i82i. sidered in their relation to the case decided, but I

possible bearing on all other cases is seldom con*
pletely investigated*.

. In the case of Marbury v. Madison, the single
question before the Court, so far as that case can be
applied to this, was, whether the legislature could
give this Court original jurisdiction in a case in
which the constitution had clearly not given it) and
in which no doubt respecting the construction, of the
article could possibly be raised. The Court decided,
and we think very properly, that the legislature
could not give, original jurisdiction in such a case.
But, in the reasoning of the Court in support of this,
decision, some expressions are used which go far
beyond it The counsel for Marbury had insisted
on the unlimited discretion of the legislature in the
apportionment of the judicial power; and it is
against this argument that the reasoning of the Court
is directed. They say that, if such had been the
intention of the article, " it would certainly have
been useless to proceed farther than to define the
judicial power, and the tribunals in which it should
be vested." The Court says, that such a construc-
tion would render the clause, dividing the jurisdiction
of the Court into original and appellate, totally use-
less; that "affirmative words are often, in their
operation, negative of other objects than those which
are affirmed ; and, in this case, (in the case of Mar-
bury w. Madison,) a negative or exclusive sense must
be given to them, or they have no operation at all."
" It cannot be presumed," adds the Court, i( that any
clause in the constitution is intended to be without

OP THE UNITED STATES. 401

effect ; and, therefore, such a construction is inad- mi.
missible, unless the words require it" ^ob^*

The whole reasoning of the Court proceeds upon . ?•
the idea that the affirmative words of the clause giv-
ing one sort of jurisdiction, must imply a negative
of any other sort of jurisdiction, because otherwise
the words would be totally inoperative, and this rea-
soning is advanced in a case to which it was strictly
applicable. If in that case original jurisdiction could
have been exercised, the clause under consideration
would have been entirely useless. Having such
cases only in its view, the Court lays down a prin-
ciple which is generally correct, in terms much
broader than the decision, and not only much broader
than the reasoning with which that decision is sup-
ported, but in some instances contradictory to its
principle. The reasoning sustains the negative ope-
ration of the words in that case, because otherwise
the clause would have no meaning whatever, and
because such operation was necessary to give effect
to the intention of the article. The effort now made
is, to apply the conclusion to which the Court was
conducted by that reasoning in the particular case,
to one in which the words have their full operation
when understood affirmatively, and in which the ne-
gative, or exclusive sense, is to be so used as to de-
feat some of the great objects of the article.

To this construction the Cou rt cam ot givr s as-
sent. The general expressions in the case of Mar-
bury v. Madison must be understood with the limita-
tions which are given to them in this opinion ; Jimita-

Vot. VI. 51

402 CASES IN THE SUPREME COURT

1821, tions which in no degree affect the decision in thai
case, or the tenor of its reasoning.

The counsel who closed the argument, put several
cases for the purpose of illustration, which he sup*
posed to arise under the constitution, and yet to be,
apparently, without the jurisdiction of the Court.

Were a State to lay a duty on exports, to collect
the money and place it in her treasury, could the ci-
tizen who paid it, he asks, maintain a suit in this
Court against such State, to recover back the
money ?

Perhaps not. Without, however, deciding such
supposed case, we may say, that it is entirely unlike
that under consideration.

The citizen who has paid his money to his State,
under a law that is void, is in the same situation with
every other person who has paid money by mistake.
The law raises an assumpsit to return the money,
and it is upon that assumpsit that the action is to be
maintained. To refuse to comply with this assump-
sit may be no inore a violation of the constitution, than
to refuse to comply with any other ; and as the fede-
ral Courts never had jurisdiction over contracts be-
tween a State and its citizens, they may have none
over this. But let us so vary the supposed case, as
to give it a real resemblance to that under considera-
tion. Suppose a citizen to refuse to pay this export
doty, and a suit to be instituted for the purpose of
compelling him to pay it. He pleads the constitu-
tion of the United States in bar of the action, not-
withstanding which the Court gives judgment
against him. Thia would be a case arising under

OF THE UNITED STATES. 40$

die constitution, and would be the very case now is«.
before the Court.

We are also asked, if a State should confiscate
property secured by a treaty, whether the individual
oould maintain an action for that property ?

If the property confiscated be debts, our own ex*
perience informs us that the remedy of the ereditor
against his debtor remains. If it be land, which is
secured by a treaty, and afterwards confiscated by a
State, the argument does not assume that this title,
thus secured, could be extinguished by ad act of con-
fiscation. The injured party, therefore, has his re*
medy against the occupant of the land for that
which the treaty secures to him, not against the
State for money which is not secured to him.

The case of a State which pays off its own debts
with paper money, no more resembles this than do
those to which we have already adverted. The
Courts have no jurisdiction over the contract.
They cannot enforce it, nor judge of its violation-
Let it be that the act discharging the debt is a mere
nullity, and that it is still due. Yet the federal
Courts have no cognizance of the case. But sup-
pose a State to institute proceedings against an indi-
vidual, which depended on the validity of an act
emitting bills of credit : suppose a State to prosecute
one of its citizens for refusing paper money, who
should plead the constitution in bar of such prose-
cution. If his plea should be overruled, and judg-
ment rendered against bint, his case would resemble
this; and, unless the jurisdiction of this Court
might be exercised over it, the constitution would

404 CASES IN THE SUPREME COURT

1821. be violated, and the injured party be unable to bring
v^v-^ bis case before that tribunal to which the people of

v. the United States have assigned all such cases.
Vii*inia. jt js most tme t|,at tki8 Court will not take juris-
diction if it should not : but it is equally true, that it
must take jurisdiction if it should. The judiciary
cannot, as the legislature may, avoid a measure be-
cause it approaches the confines of the constitution*
We cannot pass it by because it is doubtful. With
whatever doubts, with whatever difficulties, a case
may be attended, we must decide it, if it be brought
before us. We have no more right to decline the
exercise of jurisdiction which is given, than to usurp
that which is not given. The one or the other
would be treason to the constitution. Question*
may occur which we would gladly avoid ; but we
cannot avoid them. All we can do is, to exercise
our best judgment, and conscientiously to perform
our duty. In doing this, on the present occasion,, we .
find this tribunal invested with appellate jurisdiction
in all cases arising under the constitution and laws
of the United States. We find no exception to this
grant, and we cannot insert one.

To escape the operation of these comprehensive
words, the counsel for the defendant has mentioned
instances in which the constitution might be vio-
lated without giving jurisdiction to this Court
These words, therefore, however universal in their
expression, must, he contends, be limited and con-
trolled in their construction by. circumstances. One
of these instances is, the grant by a State of a patent
of nobility. The Court, he says, cannot annul this
grant.

* OF TJHE UNlTEb STATES. 406

, This may be very true ; but by no means justifies mi.
the inference drawn from it- The article does not
extend the judicial power to every violation of the
constitution which may possibly take place, but to
"a case in law or equity," in which a right, under
such law, is asserted in a Court of justice. If the
question cannot be brought into a Court, then there
is no case in law or equity, and no jurisdiction is
given by the words of the article. But jf> in any
controversy depending in a Court, the cause should
depend on the validity of such a law, that would be
a case arising under the constitution, to which the
judicial power of the United States would extend.
The same observation applies to the other instances
with which the counsel who opened the cause has
illustrated this argument. Although they show that
there may be violations of the constitution, of which
the Courts can take no cognizance, they do not
show that an interpretation more restrictive than the
words themselves import ought to be given to this
article. They do not show that there can be " a
case in law or equity," arising under the constitution,
to which the judicial power does not extend.

We think, then, that, as the constitution originally
stood, the appellate jurisdiction of this Court, in all
cases arising unc)er the constitution, laws, or treaties
of the United States, was not arrested by the circum-
stance that a State was a party.

This leads to a consideration of the 11th amend-
ment

It is in these words : " The judicial power of the
United States shall not be construed to extend to any

406 CASES IN THE SUPREME COURT

i82i. suit in law or equity commenced or prosecuted
against one of the United States, by citizens of ano-
ther State, or by citizens or subjects of any foreign
State."

It is a part of our history, that, at the adoption of
the constitution, all the States were greatly in-
debted ; and the apprehension that these debts might
be prosecuted in the federal Courts, formed a very
serious objection to that instrument. Suits were in*
stituted ; and the Court maintained its jurisdiction.
The alarm was general ; and, to quiet the appre-
hensions that were so extensively entertained, this
amendment was proposed in Congress, and adopted
by the State legislatures. That its motive was not
to maintain the sovereignty of a State from the de-
gradation supposed to attend a compulsory appear-
ance before the tribunal of the nation, may be infer-
red from the terms of the amendment It does not
comprehend controversies between two or more
States, or between a State and a foreign State. The
jurisdiction of the Court still extends to these cases :
and in these a State may still be sued. We must as-
cribe the amendment, then, to some other cause than
the dignity of a State. There is no difficulty in
finding this cause. Those who were inhibited from
Commencing a suit against a State, or from prosecu-
ting one which might be commenced before the
adoption of the amendment, were persons who might
probably be its creditors. There was not much
reason to fear that foreign or sister States would be
creditors to any considerable amount, and there was
reason to retain the jurisdiction of the Court in those

OF THE UNITED STATES. 407

cases* because it might be essential to the preserva- usi.
tran of peace* The amendment, therefore, extend-
ed to suits commenced or prosecuted by individuals,
but not to those brought by States.

The first impression made on the mind by this
amendment is, that it was intended for those cases,
and for those only, in which some demand against a
' State is made by an individual in the Courts of the
Union. If we consider the causes to which it is to
be traced, we are conducted to the same conclusion.
A general interest might well be felt in leaving to a
State the full power of consulting its convenience in
the adjustment of its debts, or of other claims upon
it ; but no interest could be felt in so changing the
relations between the whole and its parts, as to strip
the government of the means of protecting, by the
instrumentality of its Courts, the constitution and
laws from active violation.

The words of the amendment appear to the Court
to justify and require this construction. The judi-
cial power is not " to extend to any suit in law or
equity commenced or prosecuted against one of the
United States by citizens of another State, &c."

What is a suit ? We understand it to be the prose-
cution, or pursuit, of some claim, demand, or re-
quest In law language, it is the prosecution of
some demand in a Court of justice. The remedy
for every species of wrong is, says Judge B tack-
stone, " the being put in possession of that right
whereof the party injured is deprived." " The in-
struments whereby this remedy is obtained, are a di-
versity of suits and actions, which are defined by the

408 CASES IN THE SUPREME COURT

iwi. Mirror to be ' the lawful demand of one's right'
Or, as Bracton and Fleta express it, in the words of
Justinian, 'jus prosequendi in judicio quod aiicui
debetur." Blackstone then proceeds to describe
every species of remedy by suit ; and they are
all cases were the party suing claims to obtain
something to which he has a right.

To commence a suit, is to demand something by
the institution of process in a Court of justice ; and
to prosecute the suit, is, according to the common
acceptation of language, to continue that demand.
By a suit commenced by an individual against a
State, we should understand process sued out by
that individual against the State, for the purpose of
establishing some claim against it by the judgment of
a Court ; and the prosecution of that suit is its con*
tinuance. Whatever may be the stages of its pro-
gress, the actor is still the same. Suits had been
commenced in the Supreme Court against some of
the States before this amendment was introduced
into Congress, and others might be commenced be-
fore it should be adopted by the State legislatures,
and might be depending at the time of its adoption.
The object of the amendment was not only to pre-
vent the commencement of future suits, but to arrest
the prosecution of those which might be commenced
when this article should form a part of the constitu-
tion. It therefore embraces both objects ; and its
meaning is, that the judicial power shall not be con-
strued to extend to any suit which may be com-
menced, or which, if already commenced, may be

OP THE UNITED STATES. 4Q9

prosecuted against a State by the citizen of another mi.
State. If a suit, brought iu one Court, and carried
by legal process to a supervising Court, be a conti-
nuation of the same suit, then this suit is not com-
menced nor prosecuted against a State. It is clearly
in its commencement the suit of a State against an
individual, which suit is transferred to this Court,
not for the purpose of asserting any claim against
the State, but for the purpose of asserting a consti-
tutional defence against a claim made by a State.

A writ of error is defined to be, a commission by
which the judges of one Court are authorized to ex-
amine a record upon which a judgment was given in
another Court, and, on such examination, to affirm
or reverse the same according to law. If, says my
Lord Coke, by the writ of error, the plaintiff may
recover, or be restored to any thing, it may be re-
leased by the name of an action. In Bacon's Abridg-
ment^ tit. Error, L. it is laid down, that " where
by a writ of error, the plaintiff shall recover,
or be restored to any personal thing, as debt, da-
mage, or the like, a release of all actions personal is
a good plea ; and when land is to be recovered or
restored in a writ of error, a release of actions real is
a good bar ; but where by a writ of error the plain-
tiff shall not be restored to any personal or real thing,
a release of all actions, real or personal, is no bar."
And for this we have the authority of Lord Coke,
both in his Commentary on Littleton and in his Re-
ports. A writ of error, then, is in the nature of a
suitor action when it is to restore the party who ob-
tains it to the possession of any thing which is with*

Vol. VI. S2

41© CASES IN THE SUPREME COURT

1831. held from him, not when its operation is entirely de-
fensive.

This rule will apply to writs of error from the
Courts of the United States, as well as to those writs
in England.

Under the judiciary act, the effect of a writ of error
is simply to bring the record into Court, and sub-
mit the judgment of the inferior tribunal to re-exa-
mination. It does not in any manner act upon the
parties ; it acts only on the record. It removes the
record into the supervising tribunal. Where, then, a
State obtains a judgment against an individual, and
the Court, rendering such judgment, overrules a de-
fence set up under the constitution or laws of the
United States, the transfer of this record into the
Supreme Court, for the sole purpose of inquiring
whether the judgment violates the constitution or
laws of the United States, can, with no propriety,
we think, be denominated a suit commenced or pro-
secuted against the State whose judgment is so far
re-examined. Nothing is demanded from the State.
No claim against it of any description is asserted or
prosecuted. The party is not to be restored to the
possession of any thing. Essentially, it is an appeal
on a single point ; and the defendant who appeals
from a judgment rendered against him, is never said
to commence or prosecute a suit against the plaintiff
who has obtained the judgment. The writ of error
is given rather than an appeal, because it is the more
usual mode of removing suits at common law ; and
because, perhaps, it is more technically proper where
a single point of law, and not the whole case, is to

OF THE UNITED STATES. 411,

lie re-examined. But an appeal might be given, and . mi.
might be so regulated as to effect every purpose of a
writ of error. The mode of removal is form, and
«ot substance. Whether it be by writ of error or
appeal, no claim is asserted, no demand is made by.
the original defendant ; he only asserts the consti-
tutional right to have his defence examined by that
tribunal whose province it is to construe the consti-
tution and laws of the Union.

The only part of the proceeding which is in any
manner personal, is the citation. And what is the
citation ? It is simply notice to the opposite party that
the record is transferred into another Court, where
he may appear, or decline to appear, as his judg-
ment or inclination may determine. As the party
who has obtained a judgment is out of Court, and
may, therefore, not know that his cause is removed,
common justice requires that notice of the fact
should be given him. But this notice is not a suit,
nor has it the effect of process. If the party does not
choose to appear, he cannot be brought into Court,
nor is his failure to appear considered as a default.
Judgment cannot be given against him for his non-
appearance, but the judgment is to be re-examined,
and reversed or affirmed, in like manner as if the
party had appeared and argued his cause.

The point of view in which this writ of Arror,
with its citation, has been considered uniformly in
the Courts of the Union, has been well illustrated
by a reference to the course of this Court -in suits
instituted by the United States. The universally
deceived opinion is, that no suit can be commenced

412 CASES IN THE SUPREME COURT

i6si. or prosecuted against the United States; that the
judiciary act does not authorize such suits. Yet
writs of error, accompanied with citations, have uni-
formly issued for the removal of judgments in favour
df the United States into a superior Court, where
they have, like those in favour of an individual, been
re-examined, and affirmed or reversed* It has never
been suggested, that such writ of error was a suit
against the United States, and, therefore, not within
the jurisdiction of the appellate Court*

It is, then, the opinion of the Court, that the de-
fendant who removes a judgment rendered against him
by a State Court into this Court, for the purpose of
re-examining the question, whether that judgment be
in violation of the constitution or laws of the United
States, does not commence or prosecute a suit
against the State, whatever may be its opinion
where the effect of the writ may be to restore the
party to the possession of a thing which he de-
mands*

But should we in this be mistaken, the error docs
not affect the case now before the Court. If this
writ of error be a suit in the sense of the 11th
amendment, it is not a suit commenced or prosecuted
" by a citizen of another State, or by a citizen or
subject of any foreign State." It is not then with-
in th# amendment, but is governed entirely by the
constitution as originally framed, and we have al-
ready seen, that in its origin, the judicial power
was extended to all cases arising under the consti-
tution or laws of the United States, without respect
to parties*

OP THE UNITED STATES. 4l$

2d. The second objection to the jurisdiction of isai.
the Court is, that its appellate power cannot be ex-
ercised, in any case, over the judgment of a State
Court.

Tbejurisdic-

This objection is sustained chiefly by arguments Sitfa'iuS!
drawn from the supposed total separation of the ju- 3^ S^LST.
diciary of a State from that of the Union, and their 2dMto«F
entire independence of each other. The argument whftre ^ •«»*

* # ° m originally

considers the federal judiciary as completely foreign ![S?ht cSurf
to that of a State ; and as being no more connected SbyiTrl;
with it in any respect whatever, than the Court of a thisecXt,fro£
foreign State. If this hypothesis be just, the argu- Court
ment founded on it is equally so ; but if the hypo-
thesis be not supported by the constitution, the argu-
ment fails with it.

This hypothesis is not founded on any words in
the constitution, which might seem te countenance
h, but on the unreasonableness of giving a contrary
construction to words which seem to require it ; and
on the incompatibility of the application of the ap-
pellate jurisdiction to the judgments of State Courts,
with that constitutional relation which subsists be-
tween the government of the Union and the govern-
ments of those States which compose it.

Let this unreasonableness, this total incompatibili-
ty, be examined.

That the United States form, for many, and for
most important purposes, a single nation, has not yet
been denied. In war, we are one people. In ma-
king peace, we are one people. In all commercial
regulations, we are one and the same people. In

4U CASES IN THE SUPREME COURT

i82i. many other respects, the American people are one ;
and the government which is alone capable of con-
troling and managing their interests in all these re-
spects, is the government of the Union. It is their
government, and in that character they have no
other. America has chosen to be, in many respects,
and to many purposes, a nation ; and for all these pur-
poses, her government is complete ; to all these ob-
jects, it is competent. The people have declared, that
in the exercise of all powers given for these objects,
it is supreme. It can, then, in effecting these objects,
legitimately control all individuals or governments
within the American territory. The constitution
and laws of a State, so far as they are repugnant to
the constitution and laws of the United States, are
absolutely void. These States are constituent parts
of the United States. They are members of one
great empire — for some purposes sovereign, for
some purposes subordinate.

In a government so constituted, is it unreasonable
that the judicial power should be competent to give
efficacy to the constitutional laws of the legislature ?
That department can decide on the validity of the
constitution or law of a State, if it be repugnant to
the constitution or to a law of the United States. Is
it unreasonable that it should also be empowered to
decide on the judgment of a State tribunal enforcing
such unconstitutional law ? Is it so very unreason-
able as to furnish a justification for controling the
words of the constitution ?
We tbink it is not. We think that in a government

OP THE UNITED STATES. 415

acknowledged])' supreme, with respect to objects of mi.
vital interest to the nation, there is nothing inconsist-
ent with sound reason, nothing incompatible with the
nature of government, in making all its departments
supreme, so far as respects those objects, and so far
as is necessary to their attainment. The exercise of
the appellate power over those judgments of the
State tribunals which may contravene the constitu-
tion or laws of the United States, is, we believe, es-
sential to the attainment of those objects.

The propriety of entrusting the construction of the
constitution, and laws made in pursuance thereof, to
the judiciary of the Union, has not, we believe, as
yet, been drawn into question. It seems to be a
corollary from this political axiom, that the federal
Courts should either possess exclusive jurisdiction in
such cases, or a power to revise the judgment ren-
dered in them, by the State tribunals. If the federal
and State Courts have concurrent jurisdiction in all
cases arising under the constitution, laws, and trea-
ties of the United States ; and if a case of this de-
scription brought in a State Court cannot be re-
moved before judgment, nor revised after judgment,
then the construction of the constitution, laws, and
treaties of the United States, is not confided particu-
larly to their judicial department, but is confided
equally to that department and to the State Courts,
however they may be constituted. " Thirteen inde-
pendent Courts," says a very celebrated statesman,
(and we have now more than twenty such Courts,)
" of final jurisdiction over the same causes, arising
upon the same laws, is a hydra in government, from

416 CASES IN THE SUPREME COURT

1821. which nothing but contradiction and confusion out
proceed."

Dismissing the unpleasant suggestion, that any
motives which may not be fairly avowed, or which
ought not to exist, can ever influence a State or its
Courts, the necessity of uniformity, as well as cor-
rectness in expounding the constitution and laws of
the United States, would itself suggest the pro-
priety of vesting in some single tribunal the power
of deciding, in the last resort, all cases in which
they are involved.

We are not restrained, then, by the political rela-
tions between the general and State governments,
from construing the words of the constitution, de-
fining the judicial power, in their true sense. We
are not bound to construe them more ' restrictively
than they naturally import.

They give to the Supreme Court appellate juris-
diction in all cases arising under the constitution,
Jaws, and treaties of the United States. The words
•are broad enough to comprehend all cases of this
description, in whatever Court they may be decided.
In expounding them, we may be permitted to take
into view those considerations to which Courts have
always allowed great weight in the exposition of
laws.

The framers of the constitution would naturally
examine the state of things existing at the time ; and
their work sufficiently attests that they did so. All
acknowledge that they were convened for the pur-
pose of strengthening the confederation by enlarging
the powers of the government, and by giving efficacy

OF THE UNITED STATES. 417

to those which it before possessed, but could not ex- isai.
ercise. They inform us themselves, in the instru-
ment thej presented to the American public, that
one of its objects was to form a more perfect union.
Under such circumstances, we certainly should not
expect to find, in that instrument, a diminution of
the powers of the actual government.

Previous to the adoption of the confederation,
Congress established Courts which received appeals
in prize causes decided in the Courts of the respec-
tive States. This power of the government, to es-
tablish tribunals for these appeals, was thought con*
sistent with, and was founded on, its political rela*
lions with the States. These Courtp did exercise
appellate jurisdiction over those cases decided in the
State Courts, to which the judicial power of the
federal government extended.

The confederation gave to Congress the power
'' of establishing Courts for receiving and determin-
ing finally appeals in all cases of captures."

This power was uniformly construed to authorize
those Courts to receive appeals from the sentences
of State Courts, and to affirm or reverse them.
State tribunals are not mentioned; but this clause ia
the confederation necessarily comprises them. Yet
the relation between the general and State govern-
ments was much weaker, much more lax, under the
confederation than under the present constitution ;
and the States being much more completely sove-
reign, their institutions were much more independ-
ent.

The Convention which framed the constitution, on

Vol VI. S3

413 CASES IN THE SUPREME COURT

1821. turning their attention to the judicial power, found
it limited to a few objects, but exercised, with re-
spect to some of those objects, in its appellate form,
\>ver the judgments of the State Courts. They ex-
tend it, among other objects, to all cases arising un-
der the constitution, laws, and treaties of the United
States ; and in a subsequent clause declare, that in
such cases, the Supreme Court shall exercise appel-
late jurisdiction. Nothing seems to be given which
would justify the withdrawal of a judgment render-
ed in a State Court, on the constitution, laws, or
treaties of the United States, from this appellate ju-
risdiction.

Great weight has always been attached, and very
rightly attached, to contemporaneous exposition.
No question, it is believed, has arisen to which this
principle applies more unequivocally than to that
now under consideration.

The opinion of the Federalist has always been
considered as of great authority. It is a complete
commentary on our constitution ; and is appealed to
by all parties in the questions to which that instru-
ment has given birth. Its intrinsic merit entitles it
to this high rank ; and the part two of its authors
performed in framing the constitution, put it very
much in their power to explain the views with which
it was framed. These essays having been published
while the constitution was before the nation for
adoption or rejection, and having been written in an-
swer to objections founded entirely on the extent of
its powers, and on its diminution of State sovereign-
ty, are entitled to the more consideration where they

OF THE UNITED STATES. 419

frankly avow that the power objected to is given, 1821.
and defend it.

In discussing the extent of the judicial power, the
Federalist says, u Here another question occurs:
what relation would subsist between the national and
State Courts in these instances of concurrent juris-
diction ? I answer, that an appeal would certainly
lie from the latter, to the Supreme Court of the
United States. The constitution in direct terms
gives an appellate jurisdiction to the Supreme Court
id all the enumerated cases of federal cognizance in
which it is not to have an original one, without a
single expression to confine its operation to the in*
ferior federal Courts. The objects of appeal, not
the tribunals from which it is to be made, are alone
contemplated. From this circumstance, and from
the reason of the thing, it ought to be construed to
extend to the State tribunals. Either this must be
the case, or the local Courts must be excluded from
a concurrent jurisdiction in matters of national con-
cern, else the judicial authority of the Union may
be eluded at the pleasure of every plaintiff or prose-
cutor. Neither of these consequences ought, with-
out evident necessity, to be involved ; the latter
would be entirely inadmissible, as it would defeat
some of the most important and avowed purposes of
the proposed government, and would essentially em-
barrass its measures. Nor do I perceive any founda-
tion for such a supposition. Agreeably to the remark'
already made, the national and State systems are to
be regarded as one whole. The Courts of the lat-
ter will of course be natural auxiliaries to the execur

4St» CASES IN THE SUPREME COURT

iftti. don of the laws of the Union, and an appeal front
them will as naturally lie to that tribunal which is
destined to unite and assimilate the principles of na-
tural justice, and the rules of national decision. The
evident aim of the plan of the national convention is,
that all the causes of the specified classes shall, for
weighty public reasons, receive their original or
final determination in the Courts of the Union. To
confine, therefore, the general expressions which
give appellate jurisdiction to the Supreme Court, to
appeals from the subordinate federal Courts, instead
of allowing their extension to the State Courts,
would be to abridge the latitude of t^e terms, in
subversion of the intent, contrary to every sound
rule of interpretation."

A contemporaneous exposition of the constitu-
tion, certainly of not less authority than that which
has been just cited, is the judiciary act itself. We
know that in the Congress which passed that act
Were many eminent members of the Convention
which formed the constitution. Not a single indi-
vidual, so far as is known, supposed that part of the
act which gives the Supreme Court appellate juris-
diction over the judgments of the State Courts ia
die cases therein specified, to be unauthorized by the
constitution.

While on this part of the argument, it may be
also material to observe that the uniform decisions of
this Court on the point now under consideration,
have been assented to, with a single exception, by the
Courts of every State in the Union whose judg-
ments have been revised. It has been the unwel-

Viivinfa.

OF THE UNITED STATES. 4QX

come dot j of this tribunal to reverse the judgments mi.
of many State Courts in cases in which the strong- ^^^
est State feelings were engaged. Judges, whose _ ▼.
talents and character would grace any bench, to
whom a disposition to submit to jurisdiction that is
usurped, or to surrender their legitimate powers,
will certainly not be imputed, have yielded without
hesitation to the authority by which their judg-
ments were reversed, while they, perhaps, disappro-
ved the judgment of reversal.

This concurrence of statesmen, of legislators, and
of judges, in the same construction of the constitu-
tion, may justly inspire some confidence in that con*
itruction.

In opposition to it, the counsel who made this
point has presented in a great variety of forms, the
idea already noticed, that the federal and State
Courts must, of necessity, and from the nature of
the constitution, be in all things totally distinct and
independent of each other. If this Court can correct
the errors of the Courts of Virginia, he says it makes
them Courts of the United States, or becomes itself
a part of the judiciary of Virginia.

But, it has been already shown that neither of
these consequences necessarily follows : The Ame-
rican people may certainly give to a national tribu-
nal a supervising power over those judgments of the
State Courts, which may conflict with the constitu-
tion, laws, or treaties, of the United States, without
converting them into federal Courts, or converting
the national into v State tribunal. The one Court

^p*>. CASES IN THE SUPREME COURT

1821. still derives its authority from the State, the other
still derives its authority from the nation.

If it shall be established, he says, that this Court
has appellate jurisdiction over the State Courts in
all cases enumerated in the 3d article of the consti-
tution, a complete consolidation of the States, so far
as respects judicial power is produced.

But, certainly, the mind of the gentleman who ur-
ged this argument is too accurate not to perceive that
he has earned it too far ; that the premises by no
means justify the conclusion. " A complete con-
solidation of the States, so far as respects the judi-
cial power," would authorize the legislature to con-
fer on the federal Courts appellate jurisdiction from
the State Courts in all cases whatsoever. The dis-
tinction between such a power, and that of giving
appellate jurisdiction in a few specified cases in the
decision of which the nation takes an interest, is too
obvious not to be perceived by all.

This opinion has been already drawn out to too
great a length to admit of entering into a particular
consideration of the various forms in which the
counsel who made this point has, with much inge-
nuity, presented his argument to the Court. The
argument in all its forms is essentially the same. It
is founded, not on the words of the constitution, but
on its spirit, a spirit extracted, not from the words of
the instrument, but from his view of the nature of
our Union, and of the great fundamental principles
on which the fabric stands.

To this argument, in all its forms, the same an-
swer may be given. Let the nature and objects of

OF THE UNITED STATES. 423

oar. Union be considered ; let tbe great fundamental 1821.
principles, on which the fabric stands, be examined ;
and we think the result must be, that there is no-
thing so extravagantly absurd in giving to the Court
of the nation the power of revising the decisions of
local tribunals on questions which affect the nation,
as to require that words which import this power
should be restricted by a forced construction. The
question then must depend on the words themselves ;
and on their construction we shall be the more rea-
dily excused for not adding to the observations al-
ready made, because the subject was fully discussed
and exhausted in the case of Martin v. Hunter.

3d. We come now to the third objection, which, The potest
though differently stated by the counsel, is substan- jurudicttoo of
tially the same. One gentleman has said that the j*« &« !«**«-
judiciary act does not give jurisdiction in the case. c- 2M-2*.

The cause was argued in the State Court, on a
case agreed by the parties, which states the prosecu-
tion under a law for selling lottery tickets, which is
set forth, and further states the act of Congress by
which the City of Washington was authorized to es-
tablish the lottery. It then states that the lottery
was regularly established by virtue of the act, and
concludes with referring to the Court the questions,
whether the act of Congress be valid ? whether, on
its just construction, it constitutes a bar to the pro-
secution? and, whether the act of Assembly, on
which the prosecution is founded, be not itself in- •
valid? These questions were decided against the
operation of the act of Congress, and in favour of
the operation of the act of the State.

<Hfc CASES IN THE SUPREME COURT

1891. If the 25th section of the judiciary act be inspected,

it will at once be perceived that it comprehends ex-
pressly the case under consideration.

But it is not upon the letter of the act that the gen-
tleman who stated this point in this form, founds his
argument* Both gentlemen concur substantially in
their views of this part of the case. They deny
that the act of Congress, on which the plaintiff in
error relies, is a law of the United States ; or, if a
law of the United States, is within the second clause
of the sixth article.

In the enumeration of the powers of Congress,
which is made in the 8th section of the first article,
we find that of exercising exclusive legislation over
such District as shall become the seat of government.
This power, like all others which are specified, is
conferred on Congress as the legislature of the
Union : for, strip them of that character, and they
would not possess it In no other character can it
be exercised. In legislating for the District, they ne-
cessarily preserve the character of the legislature of
the Union ; for, it is in that character alone that the
constitution confers on them this power of exclusive
legislation. This proposition need not be enforced.
The 2d clause of the 6th article declares, that
"This constitution, and the laws of the United
States, which shall be made in pursuance thereof,
shall be the supreme law of the land."

The clause which gives exclusive jurisdiction is,
unquestionably, a part of the constitution, and, as
such, binds all the United States. Those who con-
tend that acts of Congress, made in pursuance of

OP THE UNITED STATES. 4g5

this power, do not, like acts made in pursuance of mi.
other powers, bind the nation, ought to show some
safe and clear rule which shall support this construc-
tion, and prove that an act of Congress, clothed in
all the forms which attend other legislative acts, and
passed in virtue of a power conferred on, and exer-
cised by Congress, as the legislature of the Union,
is not a law of the United States, and does not bind
them.

One of the gentlemen sought to illustrate his pro-
position that Congress, when legislating for the Dis-
trict, assumed a distinct character, and was reduce*]
to a mere local legislature, whose laws could pos-
sess no obligation out of the ten miles square, by a
reference to the complex character of this Court It
is, they say, a Court of common law and a Court of
equity. Its character, wjjen sitting as a Court of
common law, is as distinct from its character when
fitting as a Court of equity, as if the powers belong-
ing to those departments were vested in different
tribunals. Though united in the same tribunal,
they are never confounded with each other.

Without inquiring how far the union of different
characters in one Court, may be applicable, in prin-
ciple, to the union in Congress of the power of ex-
clusive legislation in some places, and of limited le-
gislation in others, it may be observed, that the
forms of proceedings in a Court of law are so totally
unlike the forms of proceedings in a Court of equity,
that a mere inspection of the record gives decisive
information of the character in which the Court sits,
and consequently of the extent of its powers. But

Vol. Yft 64

426 CASES IN THE SUPREME COURT

18*1. if the forms of proceeding were precisely the same,
v^v*w and the Court the same, the distinction would dis-

Cohens

r. appear.
Virginia. gince congire8S legislates ini the same forms,

and in the same character, in virtue of powers of
equal obligation, conferred in the same instrument,
when exercising its exclusive powers of legislation,
as well as when exercising those which are limited,
we must inquire whether there be any thing in the
nature of this exclusive legislation, which necessarily
confines the operation of the laws made in virtue of
this power to the place with a view to which they
are made.

Connected with the power to legislate within this
District, is a similar power in forts, arsenals, dock
yards, &c. Congress has a right to punish murder
in a fort, or other place vfyhin its exclusive jurisdic-
tion ; but no general rigfyt to punish murder commit-
ted within any of the States. In the act for the
punishment of crimes against the United States,
murder committed within a fort, or any other place
or district of country, under the sole and exclusive
jurisdiction of the United States, is punished with
death. Thus Congress legislates in the same act,
under its exclusive and its limited powers.

The act proceeds to direct, that the body of the
criminal, after execution, may be delivered to a sur-
geon for dissection, and punishes any person who
shall rescue such body during its conveyance from
the place of execution to the surgeon to whom it is
to be delivered.

OP THE UNITED STATES; 427

> Let these actual provisions of the law, or any mi.
other provisions which can be made on the subject,
be considered with a view to the character in which
Congress acts when exercising its powers of exclu-
sive legislation.

If Congress is to be considered merely as a local
legislature, invested, as to this object, with powers
limited to the fort, or other place, in which the mur-
der may be committed, if its general powers cannot
come in aid of these local powers, how can the of-
fence be tried in any other Court than that of the
place in which it has been committed ? How can
the offender be conveyed to, or tried in, any other
place ? How can he be executed elsewhere ? How
can his body be conveyed through a country under
the jurisdiction of another sovereign, and the indivi-
dual punished, who, within that jurisdiction, shall
rescue the body.

Were any one State of the Union to pass a law
for trying a criminal in a Court not created by itself,
ip a place not within its jurisdiction, and direct the
sentence to be executed without its territory, we
should all perceive and acknowledge its incompe-
tency to such a course of legislation. If Congress
be not equally incompetent, it is because that body
unites the powers of local legislation with those
which are to operate through the Union, and may
use the last in aid of the first ; or because the power
of exercising exclusive legislation draws after it, as
an incident, the power of making that legislation ef-
fectual, and the incidental power may be exercised

428 CASES IN THE SUPREME COURT

1821. throughout the Union, because the principal power

S^T^*/ is given to that body as the legislature of the Union*

v. So, in the same act, a person who, having know*

Virginia. ]e<]g6 0f fa commission of murder, or other felony,

on the high seas, or within any fort, arsenal, dock

yard, magazine, or other place, or district of country

within the sole and exclusive jurisdiction of the

United States, shall conceal the same, fee. he shaH

be adjudged guilty of misprision of felony, and shall

be adjudged to be imprisoned, &c.

It is clear, that Congress cannot punish felonies
generally ; and, of consequence, cannot punish mis-
prision of felony. It is equally clear, that a State
legislature, the State of Maryland for example, can-
not punish those who, in another State, conceal a
felony committed in Maryland. How, then, is it
that Congress, legislating exclusively for a fort, pun-
ishes those who, out of that fort, conceal a felony
committed within it ?

The solution, and the only solution of the difficul-
ty, is, that the power vested in Congress, as the legis-
- # fature of the United States, to legislate exclusively
within any place ceded by a State, carries with it,
as an incident, the right to make that power effectu-
al. If a felon escape out of the State in which the
act has been committed, the government cannot pur*
sue him into another State, and apprehend him there,
but must demand him from the executive power of
that other State. If Congress were to be considered
merely as the local legislature for the fort or other
place in which the offence might be committed, then
this principle would apply to them as to other local

OF THE UNITED STATES. 429

legislatures, and the felon who should escape out of issi.
the fort, or other place, in which the felony may S^£%N'
have been committed, could not be apprehended by ▼.
the marshal, but must be demanded from the execu- a
tive of the State. But we know that the principle
does not apply ; and the reason is, that Congress is
not a local legislature, but exercises this particular
power, like all its other powers, in its high character,
as the legislature of the Union. The American
peopleghoittht it a necessary power, and they con-
ferred it for their own benefit Being so conferred,
it carries with it all those incidental powers which
are necessary to its complete and effectual execu-
tion.

Whether any particular law be designed to operate
without the District or not, depends on the words of
that law. If it be designed so to operate, then the
question* whether the power so exercised be inci-
dental to the power of exclusive legislation, and be
warranted by the constitution, requires a considera-
tion of that instrument. In such cases the constitu-
tion and the law must be compared and construed*
This is the exercise of jurisdiction. It is the only
exercise of it which is allowed in such a case. For
the act of Congress directs, that "no other error
shall be assigned or regarded as a ground of rever-
sal, in any such case as aforesaid, than such as ap-
pears on the face of the record, and immediately re-
spects the before mentioned questions of validity or
construction of the said constitution, treaties,'' &c.

The Whole merits of this case, then, consist in the
construction of the constitution and the act of Con-

490 CASES IN THE SUPREME COURT

1821. gress. The jurisdiction of the Court, if acknow-
ledged, goes no farther. This we are required to
do without the exercise of jurisdiction

The couusel for the State of Virginia have, in sup-
port of this motion, urged many arguments of great
weight against tHe application of the act of Con-
gress to such a case as this ; but those arguments go
to the construction of the constitution, or of the law,
or of both ; and seem, therefore, rather calculated to
sustain their cause upon its merits, than to^urove a
failure of jurisdiction in the Court. ^

After having bestowed upon this question the most
deliberate Consideration of which we are capable, the
Court is unanimously of opinion, that the objections
to its jurisdiction are not sustained, and that the mo-
tion ought to be overruled.

Motion denied.

Manh tiu The cause was this day argued on the merits.

Mr. D. B. Ogden, for the plaintiffs in error, sta-
ted, that the question of conflict between the act of
Congress and the State law, which arose upon the
record, depended upon the 8th section of the first
article of the constitution, giving to Congress the
exclusive power of legislation, in all cases whatsoever,
over the District which had become the seat of the
government of the United States, by cession from
the States to whom it formerly belonged. Under
this power, Congress has authorized the establish-
ment of a lottery at the seat of government Can

OP THE UNITED STATES. 4$1

the State of Virginia prevent the sale of tickets in mi.
that lottery within her territory, consistently with
the constitution ? This question must depend upon
the nature of the constitutional power of Congress,
and of the law by which it is exercised. It was
said by the counsel for the defendant in error, on the
former argument, that the power is municipal, to be
exercised over the District only, and, of course, con-
fined in its operation to the limits of the District*
But, in order to determine whether this is the true
interpretation of the clause in question, we must
more minutely examine what is the nature of the
authority granted* The clause was not intended to
give to Congress an unlimited power, to legislate in
all cases, without reference to other provisions of the
constitution. Otherwise Congress might pass bills
of attainder and ex post facto laws, and exercise a
despotic authority over. the District of Columbia,
and its citizens would thus be deprived of their rights
entirely. Nor was it intended to authorize the ex-
ercise by Congress of its general powers as a na-
tional legislature, *within the District. Nor to ex-
empt the District from the operation of those gene*
ral powers. But the clause was inserted for the
purpose of securing the independence of the national
legislature, and government, from State control.
The object in view was, therefore, strictly a national
object The District was created only for national
purposes, and every law pas^yd for its government is
peculiarly a national law. The words, " exclusive

48S CASES IN THE SUPREME COURT

.182*. legislation in all cases whatsoever," were meant to
exclude all State legislative power ; and to vest ia
Congress, in addition to its general powers over the
whole Union, all possible powers of legislation over
the District The law in question, is the expression
of the national will on a national object It is, then,
an act of the general legislative power of the Union,
and its operation must be co-extensive with the li-
mits of the Union, unless it is limited to the District
of Columbia in express terms, or from the nature of
the power itself being incapable of acting without
the District That the whole Union has an interest
in the City of Washington, as the national capital, is
shown by the cotemporaneous exposition of the con-
stitution by its framers, and by the subsequent acts
of the national legislature, providing for its improve-
ment and embellishment It is admitted, that some
of the provisions of the l^w now in question, are
local in their very nature, and, therefore, confined
to the City, or the District, in their operation. But
the power of the Corporation to establish lotteries,
with the consent of the President, is not of this na-
ture* Lottery tickets are an article of commerce,
vendible in every part of the Union, as well as in the
District of Columbia. A State law which forbids a
citizen to sell or buy a ticket in a lottery, legally
established by the national legislature; for national
purposes, infringes the constitutional rights of the
citizen, and tends to iuipfede and defeat the exercise
of this national power. He cannot fife punished by
a State, for selling or buying that which Congress

OF THE UNITED STATES. 433

has, in the exercise of a great national power, au- 1821.
thorized to be bought or sold. The authority of v*Tv-%1'
establishing this lottery, so far from being confined v.
to the City, could not be conveniently or effectually V*******
exercised without extending the saleable quality of
the tickets throughout the Union. As a sounce of
revenue, it would be inadequate to the objects for
which it was established, without this extension. It
is not one of the ordinary sources of revenue for the
mere municipal wants of the City. It is a national
grant for national purposes, to be used in each par-
ticular instance, with the approbation of the Presi-
dent. It is, then, a national law, enacted for a na-
tional purpose, and has no other limits in its opera-
tion than the limits of the legislative power itself.
If Congress had intended to confine its operation
within the District of Columbia, they would have
expressed that intention. If, then, Congress have a
right to raise a revenue, for any national purpose, by
establishing a lottery, they bad a right to establish '
this lottery ; and no State law can defeat this, any
more than the exercise of any other national power.
But even supposing that it is not a tax or duty, such
as Congress have the express power of establishing ;
yet if it be necessary and proper, in the judgment of
the Court, to carry into effect any power expressly
granted, such as that of establishing and governing
the City, it may be exercised throughout the Union.
Congress have the same power to establish lotteries
for this purpose, as the State legislatures, and every
other legislature, have. The only difference is, that
Vol. VI. 5*

434 CASES IN THE SUPREME COURT

mh with Congress it is the exercise of a national power,

NjT^J and must, therefore, be co-extensive in its operation

r. with the Union, although the money to be raised by

Virginia,

it cannot be applied to the use of any other City in
the Union than that which is the national capital, and
in which, consequently, all the States, and all the
people, have a common interest.

Mr. Webster j contra, insisted, that Congress had
not the power, under the constitution, of establishing
a lottery in the District of Columbia, for municipal
purposes, and of forcing the sale of the tickets
throughout the Union, in contravention of the State
laws ; and, that even if they had the power, the law
now in question did not purport to authorize the
Corporation of the City of Washington thus to force
the sale of the tickets. It is clear that Congress, as
a legislative body, exercise two species of legislative
power : the one, limited as to its objects, but extend-
* ing all over the Union : the other, an absolute, ex-
clusive legislative power over the District of Colum-
bia. The preliminary inquiry in the case now be-
fore the Court, is, by virtue of which of these autho-
rities was the law in question passed ? When this is
ascertained, we shall be able to determine its extent
and amplication. In this country, we are trying the
novel experiment of a divided sovereignty, between
the national government and the States. The pre-
cise line of division between these is not always dis-
tinctly marked. Government is a moral, not a ma-
thematical science ; and the powers of such a gov-
ernment especially, cannot be defined with mathe-

OP THE UNITED STATES. 435

matical accuracy and precision. There is a compe- mi.
tition of opposite analogies. We arrive at a just
conclusion by reasoning from these analogies, and
by a general regard to the objects and purposes of
this scheme of government. With a view to the pre-
sent question, it may, perhaps, be safely admitted,
that there are certain acts of legislation passed by
Congress, with a local reference to this District,
which proceed from the general powers with which
Congress are invested. They are local in their im-
mediate operation and effect, but they are passed in
virtue of general legislative powers. Such are the
acts appropriating moneys for constructing the navy
yard and the capitol. Some other acts are of a
mixed nature. There are others clearly local, and
passed in virtue of the local, exclusive jurisdiction.
And of this latter class is the act now under consi-
deration. It is for the establishment of a local City
government, which arises from the exclusive power
of legislation ; and the clause authorizing the esta-
blishment of lotteries, is combined with other clauses
of a mere municipal character: Nosciiur a sociis.
Every act of legislation must be limited by its sub-
ject matter, and there is nothing to show that this
power is to be exercised more extensively than the
other powers of the Corporation ; nothing to show
that this municipal power is to' be carried beyond
the City. It may be exercised within the City
alone, and Congress has not said, and the Court can-
not intend, that it is to be exercised in other parts of
the Union. Congress could not give such a charter
to any other city in the Union, and if every federal

436

CASE* IN THE SUPREME COURT

i8ti. power granted in the constitution were destroyed,
this power would remain. It exists independently,
and the legislative powers of the States can never
conflict with it, because it can never operate within
the States. Being a case of mere local legislation,
it is not a casus foederis within that clause of the
constitution which declares that the laws of the
United States shall be the supreme law of the land.
There can be no question of supremacy and subor-
dination where there is no connection or conflict.
The constitution makes this provision, because other
legislative powers were to operate throughout the
Union ; the Congress and the States were to legis-
late over the same subjects, and over the same ter-
ritory ; and therefore there might be conflict. It was
because the two codes were to prevail in the same
places, and over the same persons. But the provi-
sion cannot extend to lawl enacted by Congress for
the mere local municipal government of the City,
because the reason on which it is founded does not
extend to a case where all legislation is necessarily
exclusive. There was no more reason in this in-
stance to provide for a conflict of the two authori-
ties, than in the case of the laws of a foreign State,
which, except in the familiar example of questions
relative to the lex loci contractus, cannot come in
collision with our own laws, because they cannot
operate extra-territorially. So here, from the very
nature of things, there can arise no conflict between
the local laws of the District of Columbia, and those
of the States, because each code is confined to its
own territory. Any sound interpretation of the law

OP THE UNITED STATES. 437

in question, must limit it to the City of Washington. mi.
It does not even extend to the other municipal Cor-
porations within the District of Columbia, because
it contains provisions expressly for the government
of Washington alone, and does not profess to ex-
tend any of them beyond the limits of that City. A
law cannot exceed the authority of the lawgiver,
and that does not extend beyond the District, and is
limited in its actual exercise to the City* There is
no authority showing that a grant of power of this
kind to a municipal Corporation, extends beyond the
local limits of the City.

The Attorney- General, for the plaintiffs in error, in
reply, contended, that Congress, in passing the law
under consideration, acted in the name of the whole
nation, and for a great national object. Congress
did not, as contended in the argument on the juris-
diction of the Court, succeed, by the cession, merely
to the legislative powers of Maryland and Virginia,
over this District. They are not the trustees of
those States only ; they are the trustees of the whole
Union. The cession was to the Congress and go-
vernment of the United States. The jurisdiction
over the territory belongs to the entire people of the
United States. It is not the power of Maryland and
Virginia which Congress represents, but the power of
all the States ; and the territory ceded is to be looked
at, not with reference to its origiu, not as still forming
ideally a part of Maryland and Virginia, but is to be
regarded as if incorporated into every State in the
Union. The question is not, then, to be solved by ask-

438 CASES IN THE SUPREME COURT

1821. ing what those States could do with respect to this ter-
ritory, but what each State of the Union could do
with regard to its own territory : because, to borrow
an expression from the municipal law, each State of
the Union is seized jointly with all the rest, per me
etper tout> of the whole jurisdiction over this terri-
tory. The acts of the Congress in legislating for
the District of Columbia are the acts of all the peo-
ple of all the States. It is therefore a fallacy in ar-
gument to represent Congress as succeeding merely
to the same degree of power which Maryland and
Virginia formerly had over this territory. Could
those States have taxed the other States, or bor-
rowed money on their credit, for the improvement
of this territory, as Congress have done? Although
the jurisdiction of the States whb formerly held the
sovereignty and domain of this territory has been
supplanted by Congress, the substituted jurisdiction
is far more extensive than that which they held. It
is a jurisdiction, which in the instances mentioned,
and many others which might be enumerated, is ca-
pable of affecting all the States. It cannot be de-
nied that the character of the jurisdiction which
Congress has over the District, is widely different
from that which it has over the States ; for, over
them, Congress has not exclusive jurisdiction. Its
powers over the States are those only which are spe-
cifically given, and those which are necessary to
carry them into effect : whilst over the District it has
all the powers which it has over the States, and in
addition to these, a power of legislation exclusive of

OF THE UNITED STATES. 439

all the States. Bat although the jurisdiction over 1821.
the District is of a different and more extensive cha-
racter, yet it is not so circumscribed that it may not
incidentally affect the States, although exerted for a
heal purpose, as it is called. - Such is sometimes the
^elusive effect of single words and phrases, that the
position, that in legislating for the District of Co-
lumbia, Congress is a local legislature, for local pur-
poses, and therefore cannot affect the States by its
laws, has almost become an aphorism with indolent
or prejudiced inquirers. But in what sense can that
be called a local government which proceeds from
the whole body of the nation ? And how can that be
termed a local object, which is closely and insepara-
bly connected with the general interest of the whole
people of the Union ? As well might it be asserted
that Congress acted as a local legislature, when it
established offices for the sale of lands in the western
States, or fortifications at particular points on the
sea-coast. It will not be pretended that the first es-
tablishment of the seat of government in this Dis-
trict, was an act done by Congress in its character
of a local legislature, and for local purposes. How
then can the subsequent acts for the improvement
and embellishment of the City be so regarded ? The
act of May 6th, 1796, authorized the commissioners
for erecting the public buildings to borrow money
for that purpose. Would it have been competent for
the legislatures of the States to have impeded this
loan by punishing their citizens for subscribing to
this stock ? And could the States prohibit the sale
of the City lots within their territory, and thus ar-

440 CASES IN THE SUPREME COURT

i82i. rest the improvement of the City ? And if they could
not, is it not because what Congress in the legiti-
mate exercise of its powers has made it lawful to
sell, the States cannot make it unlawful to buy ?
Let us test by these considerations the question be-
fore the Court : and let us distinguish between Con-
gress legislating for the municipal government of
the City, and Congress, in its national character,
providing the means of adding necessary public im-
provements to the national capital. Congress has
itself made this tlistinction. When a regulation for
the mere internal police of the City is to be made, it
is done by the Corporation, or some other inferior
agent, without the interference of the President of
the United States. But, when an alteration of the
plan of the City, or a public improvement affecting
the whole of the City in a national point of view, is
to be made, it is uniformly subjected to the control
of the President. So here the specific purpose in
. view, and for which the lottery was authorized by
the President, was, the establishment of a City Hall,
a necessary consequence of the establishment of the
City, which last was also a necessary consequence
of the establishment of the seat of government.

March Mu The opinion of the Court was delivered by Mr.
Chief Justice Marshall.

This case was stated in the opinion given on the
motion for dismissing the writ of error for want of
jurisdiction in the Court. It now comes on to be
decided on the question whether the Borough Court
of Norfolk, in overruling the defence set up under

OF THE UNITED STATES. 44J

the act of Congress, has misconstrued that act. It mi.
is in these words : v s,^/*w

Cohens

" The said Corporation shall have full power to *•
authorize the drawing of lotteries for effecting any
important improvement in the City, which the ordi-
nary funds or revenue thereof will not accomplish:
Provided, that the sum to be raised in each year
shall not exceed the amount of 10,000 dollars : And
provided, also, that the object for which the money
is intended to be raised shall be first submitted to
the President of the United States, and shall be ap-
proved of by him,"

Two questions arise on this act.

1st. Does it purport to authorize the Corporation
to force the sale of these lottery tickets in States
where such sales may be prohibited by law ? If it
does,

2d. Is the law constitutional ?

If the first question be answered in the affirmative,
it will become necessary to consider the second. If
it should be answered in the negative, it will be un-
necessary, and consequently improper, to pursue any
inquiries, which would then be merely speculative,
respecting the power of Congress in the case.

In inquiring into the extent of the power granted c^»J^«^
to the Corporation of Washington, we must first ex- ^o^i^w
amine the words of the grant. We find in them no wUhin'gLi to

° authorize tb«

expression which looks beyond the limits of the City, f™^"!^1^
The powers granted are all of them local in their na- SSJSt taJS
ture, and all of them such as would, in the common ?£ & c^
course of things, if not necessarily, be exercised Se^J0^ K
Vol, VI 56

H4£ CASES IN THE SUPREME COURT

1821. within the city. The subject on which Congre&
vjT]^w' was employed when framing this act was a local
• r. subject ; it was not the establishment of a lottery,
tickelTiniuch ")Ut *e format*OD °f a separate body for the ma-
stotej6" where nagement of the internal affairs of the City, for its
hiMtedlebyP£ internal government, for its police. Congress must
sutAiawi. jiave consi(jere(j i^f as delegating to this corporate

body powers for these objects, and for these objects
solely. In delegating these powers, therefore, it
seems reasonable to suppose that the mind of the le-
gislature was directed to the City alone, to the ac-
tion of the being they were creating within the City,
and not to any extra-territorial operations. In des-
cribing the powers of such a being, no words of li-
mitation need be used. They are limited by the
subject But, if it be intended to give its acts a
binding efficacy beyond the natural limits of its
power, and within the jurisdiction of a distinct
power, we should expect to find, in the language of
the incorporating act, some words indicating such
intention.

Without such words, we cannot suppose that Con-
gress designed to give to the acts of the Corpora-
tion any other effect, beyond its limits, than attends
every act having the sanction of local law, when any
thing depends upon it which is to be transacted else-
wl)ere.

If this would be the reasonable construction of
corporate powers generally, it is more especially
proper in a case where an attempt is made so to ex-
ercise those powers as to control and limit the penal
laws of a State. This is an operation which was not)

OP THE UNITED STATES. 443

we think, in the contemplation of the legislature, 1821.
while incorporating the City of Washington.

To interfere with the penal laws of a State, where
they are not levelled against the legitimate powers of
the Union, but have for their sole object the internal
government of the country, is a very serious mea-
sure, which Congress cannot be supposed to adopt
lightly, or inconsiderately. The motives for it must
be serious and weighty. It would be taken delibe-
rately, and the intention would be clearly and une-
quivocally expressed.

An act, such as that under consideration, ought
not, we think, to be so construed as to imply this in-
tention, unless its provisions were such as to render
the construction inevitable.

We do not think it essential to the corporate
power in question, that it should be exercised out of
the City. Could the lottery be drawn in any State
of the Union ? Does the corporate power to author-
ize the drawing of a lottery imply a power to author-
ize its being drawn without the jurisdiction of a
Corporation, in a place where it may be prohibited
by law ? This, we think, would scarcely be asserted.
And what clear legal distinction can be taken be-
tween a power to draw a lottery in a place where it
is prohibited by law, and a power to establish an
office for the sale of tickets in a place where it is
prohibited by law ? It may be urged, that the place
where the lottery is drawn is of no importance to the
Corporation, and therefore the act need not be so
construed as to give power over the place, but that
the right to sell tickets throughout the United

444 CASES IN THE SUPREME COURT

1821. States is of importance, and therefore ought to be

Cohen. imPHed#

v. That the power to sell tickets in every part of

^vm* the United States might facilitate their sale, is not
to be denied ; but it does not follow that Congress
designed, for the purpose of giving this increased
facility, to overrule the penal laws of the several
States. In the City of Washington, the great me-
tropolis of the nation, visited by individuals, from
every part of the Union, tickets may be freely sold
to all who are willing to purchase. Can it be af-
firmed that this is so limited a market, that the in-
corporating act must be extended beyond its words,
and made to conflict with the internal police of the
States, unless it be construed to give a more exten-
sive market ?

It has been said, that the States cannot make it
nnlawful to buy that which Congress has made it
lawful to sell.

This proposition is not denied ; and, therefore,
the validity of a law punishing a citizen of Virginia
for purchasing a ticket in the Cfty of Washington,
might well be drawn into question. Such a law
would be a direct attempt to counteract and defeat a
measure authorized by the United States. But a
law to punish the sale of lottery tickets in Virginia,
is of a different character. Before we can impeach
its validity, We must inquire whether Congress in-
tended to empower this Corporation to do any act
within a State which the laws of that State might
prohibit.

OF THE UNITED STATES. 44&

In addition to the very important circumstance, ,1821.
that the act contains no words indicating such inten-
tion, and that this extensive construction is not es-
sential to the execution of the corporate power, the
Court cannot resist the conviction, that the intention
ascribed to this act, bad it existed, would have been
executed by very different means from those which
have been employed.

Had Congress intended to establish a lottery for
those improvements in the City which are deemed
national, the lottery itself would have become the
subject of legislative consideration. It would be
organized by law, and agents for its execution would
be appointed by the President, or in such other man-
ner as the law might direct. If such agents were
to act out of the District, there would be, probably,
some provision made for such a state of things, and
in making such provisions Congress would examine
its power to make them. The whole subject would
be under the control of the government, or of per-
sons appointed by the government.

But in this case no lottery is established by law,
no control is exercised by the government over any
which may be established. The lottery emanates
from a corporate power. The Corporation may au-
thorize, or not authorize it, and may select the pur-
poses to which the proceeds are to be applied. This
Corporation is a being intended for local objects
only. All its capacites are limited to the City.
This, as well as every other law it is capable of
making, is a by-law, and, from its nature, is only
co-extensive with the City. It is not probable that

446 CASES IN THE SUPREME COURT

1821. such an agent would be employed in the execution
of a lottery established by Congress ; but when it
acts, not as the agent for carrying into effect a lottery
established by Congress, but in its own corporate
capacity, from its own corporate powers, it is rea-
sonable to suppose that its acts were intended to par-
take of the nature of that capacity and of those
powers ; and, like all its other acts, be merely local
in its nature.

The proceeds of these lotteries are to come in aid
6f the revenues of the City. These revenues are
raised by laws whose operation is entirely local, and
for objects which are also local ; for no person will
suppose, that the President's house, the Capitol, the
Navy Yard, or other public institution, was to be
benefitted by these lotteries, or was to form a charge
on the City revenue. Coming in aid of the City re-
venue, they are of the same character with it ; the
mere creatilre of a corporate power.

The circumstances, that the lottery cannot be
drawn without the permission of the President, and
that this resource is to be used only for important
improvements, have been relied on as giving to this
corporate power a more extensive operation than is
given to those with which it is associated. We do
not think so.

The President has no agency in the lottery. Ft
does not originate with him, nor is the improvement
to which its profits are to be applied to be selected
by him. Congress has not enlarged the corporate
power by restricting its exercise to cases of which
the President might approve.

OP THE UNITED STATES. 44?

We very readily admit, that the act establishing 1821.
the seat of government, and the act appointing com-
missioners to superintend the public buildings, are
laws of universal obligation. We admit, too, that
the laws of any State to defeat the loan authorized
by Congress, would have been void, as would have
been any attempt to arrest the progress of the canal,
or of any other measure which Congress may adopt
These, and all other laws relative to theDistrict,
have the authority which may be claimed by other
acts of the national legislature ; but their extent is
to be determined by those rules of construction
which are applicable to all laws. The act incorpo-
rating the City of Washington is, unquestionably, of
universal obligation ; but the extent of the corporate
powers conferred by that act, is to be determined by
those considerations which belong to the case.

Whether we consider the general character of a
law incorporating a City, the objects for which such
law is usually made, or the words in which this
particular power is conferred, we arrive at the same
result The Corporation was merely empowered to
authorize the drawing of lotteries; and the mind of
Congress was not directed to any provision for the
sale of the tickets beyond the limits of the Corpora-
tion. That subject does not seem to have been taken
into view. It is the unanimous opinion of the
Court, that the law cannot be construed to em-
brace it.

Judgment affirmed.

CASES IN THE SUPREME COURT

is*. Judgment. This cause came on to be heard on

the transcript of tbe record of the Quarterly Session
Court for the Borough of Norfolk, in tbe Com-
monwealth of Virginia, and was argued by counsel.
On consideration whereof, it is adjudged and or*
dered, that the judgment of the said Quarterly Ses-
sion Court for the Borough of Norfolk, in this case,
be, and the same is hereby affirmed, with costs.

(Practice.)

Gibbons v. Ogden.

A decree of the highest Court of Equity of a State, affirming the de-
- cretal order of an inferior Court of Equity of the same State, refu-
sing to dissolve an injunction granted on tbe filing of tbe bill, is not
a final decree within tbe 25th section of tbe judiciary act of 1789,
o. 20. from which an appeal lies to this Court

Appeal from die Court for the Trial of Impeach-
ments and the Correction of Errors of the State of
New- York.

This was a bill filed by the plaintiff below, (Og-
den,) against the defendant below, (Gibbons,) in the
Court of Chancery of the State of New- York, for
an injunction to restrain the defendant from naviga-
ting certain steam boats on the waters of the State
of New- York, lying between Elizabethtown, in the
State of New-Jersey, and the City of New- York ;

Or THE UNITED STATES: 449

the exclusive navigation of which with steam boats issi.
had been granted, by the legislature of New- York,
to Livingston and Fulton, under whom the plaintiff
below claimed as assignee. On this bill an injunc-
tion was granted by the Chancellor, and on the
coming in of the answer, which set up a right to na-
vigate with steam boats between the City of New-
York and Elizabethtown, under a license to carry
on the coasting trade, granted under the laws of the
United States, the defendant below moved to dissolve
the injunction, which motion was denied by the
Chancellor. The defendant below appealed to the
Court for the Trial of Impeachments and the Cor-
rection of Errors; the decretal order, refusing to
dissolve the injunction, was affirmed by that Court ;
and from this last order the defendant below appeal-
ed to this Court, upon the ground, that the case in-
volved a question arising under the constitution,
laws, and treaties of the United States.

The cause was opened for the appellant, by Mr. Mmtkm.
Z). B. Ogden ; but on inspecting the record, it not
appearing that any final decree in the cause, within
the terms of the 25th section of the judiciary act of
1789, c. 20. had been pronounced in the State
Court, the appeal was dismissed for want of jurisdic-
tion.

•

Decree. This cause came on to be heard on
the transcript of the record of the Court for the Trial
of Impeachments and the Correction of Errors, of

Vol VI. 67

450 CASES IN THE SUPREME COURT

i8ti. the State of New- York. On inspection whereof, it
is ordered, that the appeal, in this cause, be, and

Sullivan

lUIVwU

v. the same is hereby dismissed, it not appearing from
steam Boat the record that there was a final decree in said Court
Comnany- for the Correction of Errors, &c. from which an ap-
peal was taken.*

a Vide 4 Johns. Ch. Rep. 150. and 17 Johns. Rep. 488. where
the learned reader will find the case reported as decided in the
State Courts.

(Pbactice.)

Sullivan et al. v. The Fulton Steam Boat Com-
pany.

In order to maintain a suit in the Circuit Court, the jurisdiction most
appear on the record ; as if the suit is between citizens of different
States, the citizenship of the respective parties must be set forth.

Appeal from the Circuit Court for the Southern
District of New- York.

This was a bill in equity, filed in the Court below,
in which Sullivan, one of the plaintiffs, was de-
scribed as a citizen of Massachusetts, and others of
the plaintiffs, as citizens of Connecticut and Ver-
mont, and the defendants were described as a cor-
porate body incorporated by the legislature of the

OF THE UNITED STATES. 4£|

State of New-York, for the purpose of navigating, mi.
by steam boats, the waters of the East river, or N^^
Long Island Sound, in said State. The object of Y-x

ADO JVUWOQ

the bill was to obtain an injunction to prevent the steam Boat
defendants from so exercising the privileges granted ""P**?'
to them by the said act, and by an assignment from
Livingston and Fulton of their rights under certain *

other acts of the legislature of New-York, as to ob-
struct the plaintiffs in the right claimed by them un-
der the constitution and laws of the United States,
and under a coasting license, of employing a certain
steam boat belonging to the plaintiffs in the trans-
portation of goods and passengers in the waters of
the States of Connecticut and New- York. The
defendants demurred to the bill, and a decree dis-
missing it was entered pro forma, by consent, and
the cause was brought by appeal to this Court.

Mr. Webster, for the appellants, opened the record. Monk M.
from which it not appearing that the Court below
had jurisdiction, as the respective parties were not
described as citizens of different States, the decree,
dismissing the bill, was affirmed.

Decree. On motion of the appellants, by their
counsel, and on inspection of the transcript of the
record of the Circuit Court for the Southern District
of New- York, it is decreed and ordered, that the
decree of the said Circuit Court, in this case, be, and
the same is hereby affirmed, it not appearing from
the record that the said Circuit Court had jurisdic-

4|8 CASES IN THE SUPREME COURT

ietu tion in said cause. The said affirmance to be with-

^^ out prejudice to the complainants on the merits of

quiiie. the case.

(Practice.)

The Jonquille.

An admiralty suit, where an appeal has been taken from the Circuit
Court to this Court, but not prosecuted, will be dismissed, upon
producing' a certificate from the Court beloir, that the appeal hat
been taken, and not prosecuted.

March Btk Mr. Wheaton, for the respondents, moved to
docket and dismiss the appeal in the case, which
was a prize cause, commenced in the Circuit Court
of North Carolina, in which a decree for costs and
damages had been entered against the captors, from
which they appealed, but had not prosecuted their
appeal. He produced a certificate from the Court
below to that effect.

The Court stated, that the case was within the
spirit of the 20th rule of Court, although that rule
applied, in terms, only to writs of error.

Motion granted.8

0 Vide new rule of Court of the present term. Ante. Role
XXXII.

OF Tiffi UNITED STATES. 46ft

ltffc

(Chancery.) Hugbet.

Blake*

Hughes v. Blake.

A decree cannot be pronounced, on 'the testimony of a single witness,
unaccompanied by corroborating circumstances, against a positive
denial, by the defendant, of any matter directly charged by the bill,
in the defendant's answer, or answer in support of bis plea.

A replication to a plea is an admission of the sufficiency of the plea, as
much as if it had been set down for argument and allowed ; and all
that the defendant has to do, is to prove it in point of fact,
and a dismission of the bill on the hearing is then a matter of course.

Under what circumstances a plea of a former judgment at law, for the
cause of action, is a good bar in Equity.

Appeal from the Circuit Court of Massachusetts.

The object of the bill in equity filed in this case,
was to recover from the defendant, Blake, a sum of
money arising from the sale of a tract of land, called
Yazoo lands, alleged to have been made in 1795, by
the defendant, as agent of certain persons named in
the bill, in which lands the plaintiff, Hughes, claim*
ed an equitable interest, in common with the imme-
diate principals of the defendants, and, therefore, to
be entitled to a proportion of the proceeds resulting
from the sale. The bill also charged, that the de-
fendant had rendered himself distinctly liable for a
specific sum of money, in virtue of a certain order,
having reference to the plaintiff's interest in the
lands, drawn by one Gibson, in September, 1 796, in
favour of the plaintiff, and accepted by the defendant,
with certain modifications and conditions, as parti-
cularly expressed in the acceptance.

454 CASES IN THE SUPREME COURT

ion. The defendant pleaded in bar, both to the relief

and the discovery sought by the bill, a former verdict
and judgment at law rendered in his favour, in the
Supreme Court of Massachusetts, in the year 1810,
upon a suit commenced against him by the present
plaintiffs, in 1804, being long before the exhibition
of the present bill, for the same cause of action. The
plea averred, that the judgment at law was still in
force ; that the matters in controversy, and the par-
ties in both suits, were the same ; that the whole me-
rits of the case, as stated by the bill, were fully heard,
tried, and determined in the action at law, and in a
Court of competent jurisdiction ; and that the judg-
ment was obtained fairly, and without fraud, covin,
or misrepresentation, or the taking any undue advan-
tage. It was also averred by the plea, that no evi-
dence has come to the plaintiffs knowledge, since
the trial at law, respecting any of the facts alleged in
the bill, and which he did not, or might not have
produced on such trial : and further, that the defen-
dant has at no time, as alleged in the bill, obtained
of a certain E. Williams, any allowance or payment,
for, or on account of his, the defendant's, being liable
as bail for Gibson, in the plaintiff's bill mentioned,
and for which liability he has claimed in the action
at law an indemnity out of a fund on the credit of
which fie had accepted the order in favour of the
plaintiff. The defendant, then, without waiving his
plea, proceeded to answer and deny the matters alle-
ged by the bill, as circumstances of equity to avoid
the effect of the proceedings at law, and which he
had already denied by the averment in his plea.

OF THE UNITED STATES. 466

To this plea and answer the plaintiff filed a gene- mi.
ral replication in the usual form, and witnesses were
examined by both parties.

At the hearing, the identity of the causes of action
were sought to be established, without the aid of
collateral proof, from a comparison of the matters
*et forth in the bill, with the averments contained in
the several counts of the plaintiff's declaration ; it
appearing, moreover, that, in the trial at law, the
plaintiff had submitted to the jury, in support of
these counts, the depositions of the same witnesses,
on whose evidence he relied, in support of his bill.
The principal other question of fact related to the
subject of the negotiation respecting the lands before
mentioned, alleged in the plaintiff's bill to have ta-
ken place in 1814, between the defendant and E.
Williams, whose testimony respecting it, was in-
sisted by the plaintiff not to be sufficient to outweigh
the effect of the positive denials contaiqed in his
plea and answer.

The cause being heard on the issue joined, and
the proofs taken in it, the Court below decreed that
the plea was sufficiently proved, and therefore dis-
missed the bill with costs, and the cause was brought
by appeal to this Court.

Mr. Pinkney, for the appellant, stated three ques- February mk.
tions for the consideration of the Court : (1.) Whe-
ther the plea was in itself sufficient, supposing its
sufficiency to be now an open question ? (2.) Whe-
ther it has been proved ? (3.) Whether its suffi-
ciency, supposing it to be proved, is now open for

466 : CASES IN THE SUPREME COURT

mm. inquiry ? The first of these questions being answer-
ed negatively, and the third affirmatively, would pro-
duce a reversal of the decree : and let them be an-
swered as they might, if the second be answered
negatively, a reversal would equally follow.

1. The plaintiff's allegations must be taken to be
true, except so far as the averments in the plea, and
the answer in support of the plea, deny them.* And
if the plea does not deny whatever is alleged, and if
true, would make the plea no bar, it is no plea.6 The
result of an examination of the allegations in the bill
will be found to be, that the defendant was theljgal
owner of the notes taken for the sale of the lands,
by taking and holding them in his own name ; that
the plaintiff, and the other persons interested, were
cestui que trusts according to their respective in-
terests, explained and known to the defendant ; that
the defendant's conditional acceptance of the order
in the plaintiff's favour, so far as it affected to au-
thorize him to apply the plaintiff's interest as an in-
demnity for his liability as Gibson's bail, being with-
out the plaintiff's consent, did not destroy the de-
fendant's character of trustee. That when he after-
wards sold the plaintiff's interest, (it being still a
merely equitable one in the view of Chancery, the
conditional acceptance being of no force in equity,)
in order to apply the money to the wrongful purpose
of the conditional acceptance, the defendant still re-
mained answerable, in equity, upon the foundation

a Coop. PL 231. 2 Atk. 155. Gilb. Ch. 158.
b Coop. PL 226. 266.

bP THE UNITED STATES. 457

of the original trust. That the defendant knew all mi.
the material facts charged in the bill, out of which
arose the trust, and breach of trust, and his alleged
continuing accountability. That the defendant, in-
sisting upon thus misapplying the money, the plain-
tiff, mistaking the proper forum, sued the defendant
at law, and a verdict and judgment passed against
him ; arid the bill charges the defendant's breaches
of trust, and abuse of his power as legal owner in
taking advantage of the plaintiff, and the impossibi-
lity of his obtaining a full and fair trial of the whole
merits at law, as reasons why the verdict and judg-
ment should not be suffered to prevent relief in
equity. The defendant, notwithstanding all this,
pleads the verdict and judgment in bar of the relief
and discovery. The plea leaves uncontradicted
whatever in the bill showed a mere equitable trust,
and undue advantage taken of the defendant's cha-
racter of legal owner and holder of the fund. Since,
then, the plaintiff could obtain relief no where, but
upon the mere trust, which was properly cognizable
in Chancery ; and even if it were barely possible
that a Court of law could relieve, and that great dif-
ficulties only stood in the way arising out of the na-
ture of the subject, his miscarriage at law ought not
to oust a Court of equity of its power of relief in a
matter appertaining to its jurisdiction. It cannot be
denied on the other side, that a judgment at law may
be relieved against in equity upon equitable induce-
ments of various kinds. Cases of this sort furnish
the familiar and ordinary business of the Court of

Vol. VL 58

458 ^ASES IN THE SUPREME COURT

i*2h Chancery." The only question, therefore, is, upon
what grounds will it relieve ? I admit, with Lord
Chancellors Eldon and Redesdale, that mere inatten-
tion, omission, or neglect, however fatal the conse-
quences may be, shall not of itself be a ground of
equitable relief against a judgment at law.* But
where the matter is cognizable in equity, although
also cognizable at law, and effectual cognizance has
not, and cannot be taken at law, Chancery will re-
lieve against a judgment at law ; especially if the
matter is better adapted to equitable cognizance, and
forms a favourite subject of that jurisdiction. The
instances put by Lord Redesdale of cases in which
equity will interfere, although a verdict and judg-
ment have been obtained at law, are only put by
way of example/ They are not all the excepted
cases : and the case actually before him, where he
refused to interfere, was a case of crassa negligentia
on the part of the defendant at law. If there has
been no such gross negligence, and if the Court of
law be not only of competent jurisdiction, but com-
petent to do justice in the case, from the nature of
the subject, and its mode of proceeding, doubtless its
judgment is conclusive. But this does not exclude
the right of equity to control the judgment of a Court
of law, for equitable purposes. It is no just reproach
to a Court of law, that it cannot do complete justice
^ in all cases where it may have jurisdiction. The

a Coop. PI. 141. Toth. Rep. 231. 1 Ch. Cas. 56.
b Ware v. Harwood, 14 Vet. jvn. 31. Batetnan v. Willoe.
1 Sch. 4r Lef. 201.
e I Sch.* Lef. 205.

OF THE UNITED STATES. 45$

question is, whether it has adequate jurisdiction: 1821.
and if it has not, equity will and ought to interfere :
as in the case of a bond given for the purchase mo-
ney of lands, and a suit at law brought upon it ; and
after judgment, a fatal defect discovered in the title ;
a Court of equity will enjoin and relieve against the
judgment, although it has no natural jurisdiction
over a suit brought for a specialty or simple contract
debt. In the view of a Court of equity, a party who
elects an incompetent forum, is not concluded by its
judgment. The question still recurs, had he, and
could he have justice there? The terms of the
averment of the present plea, are also important to
be considered. The plea alleges, that the merits
were fully and fairly tried. But if it appears that,
in the nature of things, there were inherent difficul-
ties in opposition to a full trial of the real merits, the
plea cannot be true. The general rule, that what-
soever might have been, and was litigated at law, is
concluded, need not be denied, if taken with this
qualification, that it bo fully and fairly litigated, and
there be no equitable reason why the judgment
should be set aside. But if there be new evidence
discovered, or fraud, or an unconscientious advantage
taken by the opposite party, or matters of equity
which a Court of law could not effectually investi-
gate-and decide, then the judgment at law is not
conclusive.

Let us now see whether this case, as it appears on
the bill, and the record pleaded as a bar, was proper-
ly and effectually relievable at law. And, in order
to do this, it is necessary to examige the counts of

460 CASES IN THE SUPREME COURT

1821. the plaintiffs declaration in the suit at law, which a
Hushes Court of equity will do with a hypercritical eyef
v- when it becomes necessary to inquire whether a judg-
ment of a Court of law is fit to bar its own jurisdic-
tion. It does not act on such an occasion as an ap-
pellate Court : but it looks to the case with a view
to see whether justice could be effectually done by
the Court of law. Lord Redesdale, in the case be-
fore alluded to, inquired what was open before the
jury :* and an examination of the counts in this decla-
ration has the same object, and the further object, to
ascertain whether any judgment could have been re-
covered upon them.

The learned counsel here entered into a minute
analysis of the counts, in order to show that com-
plete justice could not be done in the action at law,
- upon the equitable merits of the case, considered as

a case of trust, complicated accounts, and fraud.

The original trust was never tried, and could not
be tried. A declaration could not be framed to try it
fully and effectually. A complicated account may
indeed be examined at law. There is no defect of
jurisdiction: but there is an insurmountable diffi-
culty in doing justice. A Court of law is not adapt-
ed, although it has jurisdiction, to arrive at a just re-
sult on such a subject : and as matters of account
are a proper subject of equitable jurisdiction, equity
will interpose on the mere ground of that difficulty,
notwithstanding there has been a trial at law. The
^ant of the defendant's oath, which this bill, in seek-

4 1 Scho. irLefr. 204.

OF THE UNITED STATES. 461

iiig relief, calls for, was alone an insurmountable db» issj.
stacle : This is not a bill for discovery merely ; if it
was, it could not be maintained ; for then it would
not be a case for equitable cognizance, and the plain-
tiff should have come here for a discovery during the
lis pendens at law. But although it is a bill for re-
lief, discovery is most important to that relief. The
relief was always in the power of a Court of equity,
and one of the reasons why this Court ought not to
be satisfied with what has been done at law, is, that
at law, there could be no discovery. The examina-
tion into the trust, and its abuses, could not be com-
plete without the defendant's oath* If the plaintiff
had come into equity seeking discovery and relief,
while the suit was depending at law, the Court of
equity would have taken the whole cause under its
care, and would have determined it as now required
to do: and the principle is not altered by the suit at
law having proceeded to judgment, since the cause
has not yet been decided upon the defendant's oath.
Where a bill alleges that a verdict has been obtained,
on a matter of equitable cognizance, against the de-
fendant's knowledge of the merits, a reliance upon
such verdict is as much against conscience as to that
defendant, as the alleged breach of trust itself. In
this case, the plea is no bar to the relief, if the de-
fendant's knowledge makes the verdict unconscien-
tious. A judgment may, indeed, be pleaded in bar,
where the matter has been fully tried, and where {he
judgment is not impeached through the conscience* of
the defendant. If the bill alleges nothing, that if
true, convicts the defendant of knowledge that his

462 CASES IN THE SUPREME COURT

1821. verdict is against conscience, the plea is good. But
a Court of equity ought not to relinquish its juris-
diction, until the defendant has maintained the ver-
dict, on a matter of equitable cognizance, by his
oath.

2. It has already been shown, that the merits of
the cause could not have been fully and fairly tried
at law, and the judge's charge shows that they were
not. But it is said that the plaintiff ought then to
have moved for a new trial : and certainly upon a
matter which a Court of law only had a right to dis-
pose of, this would have been the proper course :
But this is a matter of equity, and if the party will
set up a trial at law as a bar to equitable relief, he
must show it, as he alleges it to be, a full and fair
trial, and that the equitable merits were really left
open to the jury.

3. But supposing the plea to be proved, is its suffi-
ciency now open for inquiry ? And certainly the ge-
neral rule would exclude that inquiry : pleas are not
usually forestalled by the bill : but if the bill shows

t what, if true, would invalidate the plea, taking issue
on it does not cure the defect." But, it has been be-
fore shown, that this bill does allege such matter, and
the plea admits the whole of it by not denying it. It
is true that the defendant cannot amend his plea, but
he may be ordered to answer, reserving him the be-
nefit of his plea at the hearing, and in that mode jus-
tice will be done.

a Coop. PL 227.

OF THE UNITED STATES. 463

* Mr. Webster , and Mr. Jones, contra, insisted, that mi.
no question could arise on the sufficiency of the plea
in point of law, for by going to issue on the facts al-
leged in the plea, the parties have waived all objec-
tions of that nature : or, in the wprds pf Gtilbert, " if
a party replies to a plea before Jt comes on to be ar-
gued, this is as full an admission of the plea, as if it
had been argued and allowed ; for the plea by this
replication is allowed to be good ; vonly the defend-
ant is put to the proof thereof ; and so he may be,
when it is argued and allowed. But if he proves his
plea, the bill must be dismissed at the hearing.9'11
Thus, if the defendant, in pleading a purchase for a
valuable consideration, omits to deny notice ; if the
plaintiff replies to it, all that the defendant has to do,
is to prove his purchase ; and even if the plaintiff
proves notice, it is immaterial ; for it is the plaintiffs
own fault if he does not set down the plea to be ar-
gued, in which case it would be overruled.* So here,
if the plea had been bad, the plaintiff should have set
it down for argument. The plea consists of two ma-
terial parts ; it alleges a judgment at law, for the
same cause of action, in a Court of competent juris-
diction ; and it avers that there is no ground to im-
peach that judgment, and no new evidence disco-
vered to enable the plaintiff to go behind it. There
is the same strictness of pleading in equity, as at
law :e but if the rule were not so, this plea is

aGilb.For. Rom. 9C. Mitf. PL 244. Beamed Eq. PI. 317.
2 Eq. Abr. 79. Wyatt's Prac. Reg. 376. 1 Scho. <fr Lefr. 725.
b Harris v. Ingleden, 3 P. Wmt. 95.
c 2 M. 632,

464 CASES IN THE SUPREME COURT

182T. sufficient. The general principle is clear, that

Hughes

a judgment in a competent Court, is a bar
T""" to a proceeding for the same cause of action
in any other Court. It is conclusive as to
every matter which might have been litigated and
decided in the first suit. The rule in equity is the
same in this respect as at law.4 Nor does it make
any difference, that the case is proper, in itself, for
equity jurisdiction. If so, a judgment at law could
never be pleaded in bar of a suit in equity. Ques-
tions of fraud and trust are not the peculiar and ex-
clusive subjects of equity jurisdiction. Whenever
Courts of common law can reach these subjects, they
dispose of them effectually and conclusively/ If a
particular subject is common to the two jurisdic-
tions, the judgment of that tribunal which first ap-
propriates it to itself, must necessarily be conclusive,
otherwise the party might speculate upon his chances
of recovery in both : and as the Courts of the Union
are now constituted, we should be presented with the
novel spectacle of a party suing on both sides of the
Circuit Court for the same cause of action. Here
the judgment is as good a bar to the discovery as to
the relief/ So, a plea of the statute of limitations,
or the statute of frauds, is a bar to discovery as well
as relief.' And k is now the settled course of pro-
ceeding, that if a bill is filed for discovery and relief,

a 3 Atk. 626.

b 1 Burr. 396. Mitf. PL 90. 3 BL Com. 431. 2 P. Wnu.
156. 1 P. Wms. t54.
c Mitf. PL 193.
d Coop. PL 251. 255. 257. 1 Bro. Ch. 305.

OF THE UNITED STATES. 465

and the plea is sufficient to bar the relief; it is held ism.
sufficient to bar the discovery/ It is the general
rule, that a plea confesses and avoids ; but that prin-
ciple does not apply in this case, where the defend-
ant denies every allegation of the bill, and supports
his denial by the former trial and verdict. Had it
been a plea of payment, or release, or of the statute
of frauds, or limitations, the rule might be applica-
ble. The real defence is, that this matter has been
before tried, and found against the plaintiff. If the
defendant had answered more, he would have over-
ruled his own plea.

Where is the authority for asserting, that it is no
objection to the present bill, that a discovery was not
sought pendente lite ? What use could now be made
of a discovery ? It could not aid any proceeding
elsewhere : and could only be used as a ground for
relief in the present suit. The whole of the argu-
ment on the other side, on this point, rests on the
notion, that the plaintiff may sue at law, and being
defeated there, may, of course, file a bill in equity
for the same matte^ The unavoidable consequence
of that doctrine would be, that in no case could the
judgment of a Court of law be pleaded in bar to a
suit in equity. Here the cause of action is equally'
within the jurisdiction of a Court of law, which has
pronounced upon it, and whose judgment must,
therefore, be conclusive in all other Courts : and the
argument against its conclusiveness, in this case, goes
on the supposition, that the defendant cannot set up

a 9 Fes. jun. 75.
Vol. VI. 59

466

CASE8 IN THE SUPREME COURT

i8*i. the judgment without undertaking to prove, that it
**v-w was a correct judgment on the merits, or, in other
v.68 words, without going through the whole process of
I*lk0* trial again. The plaintiff had to choose between
three different courses. He might sue in equity ;
he might sue at law, and file a bill for discovery,
lite pendente; or he might bring an action at law,
and go to trial without the aid of a discovery. He
elected the latter course, and must be hound by
it. The verdict and judgment constitute a flat
bar. The plaintiff is not now entitled to a dis-
covery, unless he is entitled to relief; he is not
entitled to relief, because it is a res judicata. A
Court of equity cannot try over again the merits
which were fully tried in the former cause. To re-
vise the merits of a cause which has been once tried
between the same parties, and in a competent Court,
is the province of an appellate Court, and not of a
co-ordinate tribunal, or one of a different jurisdic-
tion. Parties must prosecute their rights in due
time, and before the proper forum ; and having once
elected their forum, the decision is conclusive, not
only as to the matter actually "judged, hut as to
every matter which might have been litigated and
decided/ In the action at law, the judge's charge
might have been excepted to, if erroneous, and a
new trial granted, which is in itself a sort of equit-
able right ; but if the charge was correct, no injus-
tice has been done. The present bill avows it to be
for the same cause of action, and does not allege any

t
a Le Guen v. Gouverneur, 1 Johns. Cas. 436. Per Kejtt,

C. J. Bateman v. Willoe, 1 Sch. <fr Lef. 201.

OF THE UNITED STATES. 467

incompetency in the jurisdiction of the Court of law. 1*21
It sets up no new right, but merely contends, that
the plaintiff had a right then, on matter discovered
since, but existing at the time. The question now
is, not as to the goodness of the counts in the plain-
tiff's declaration, but whether the merits have been
substantially tried upon them : not intending, how-
ever, to admit, that the counts were not sufficient.
The regular course of the Court of Chancery, in
such a case, is to refer them to the master to re-
port whether the cause of action be substantially the
same.'

As to the principles which govern Courts of equi-
ty in setting aside verdicts as against equity : it must
be shown that at the time of the trial at law some
material fact existed, within the defendant's owa
knowledge, different from the finding of the jury.*
Here there is no such fact : and even if there had
been, if it was also within the plaintiff's knowledge,
he should have filed a bill of discovery, lite pendente,
to obtain the defendant's answer on oath. Suppo-
sing the testimony of £• Williams to be true, it esta-
blishes no fact existing at the time, which is essential
to entitle the plaintiff to relief in equity/ But his
testimony is explicitly contradicted by the defend*
ant's answer : and the plea must therefore stand, be-
ing supported by the answer, and contradicted by
the testimony of a single witness only, unsupported

a 1 Fern. 310. Note. Raithbys erf.
b Lee v. Williams, 3 Atk. 224.
c Standish v. Radley, 2 Atk. 178.

„ 468 CASES IN THE SUPREME COURT

mi. by circumstances to strengthen its credibility/ The
transactions between the parties took place more
than twenty years ago. The plaintiff had an oppor-
tunity of establishing his pretended claim in the tri-
bunal which he had elected, and in which he failed ;
and the defendant has a just right to a?ail himself of
that failure as a bar to any further proceedings in a
case where, besides the solemn trial which has al-
ready been had at law, he has now purged his con-
science of the allegations of fraud, which have been
made against him without the slightest foundation
in the facts and circumstances of the case*

iutnh im. Mr. Justice Livingston delivered the opinion of
the Court, and after stating the pleadings, proceeded
as follows :

In examining whether there be any error in the
decree of the Court below, we shall have to inquire
whether the plea of the respondent is proved ; and
if so, whether any other decree, except that of dis-
missing the bill, could have been made by the Court
below.
m^iifin* *n exam*n*ng *e question of fact, that is, whether
^STS & ** P'ea were proved or not, it will be borne in mind,
S^iini^^ that no decree can be made against a positive denial
bj of of the defendant, of anysnatter directly charged in

more than one , , ... , .

witneM, or one the bill, on the testimony of a single witness, unac-

witneM •ccom- 7# J ° J

co^^orttilj*11 comPanied by some corroborating circumstance.

a Walton v. Hobbes, 1 Atk. 19, and the cases there cited.
2 Fes.jun. 243. 1 Bro. Ch. 62. 1 John*. Cfc, <Cas. 459. 3 Pet.
ju*. 170.

OF THE UNITED STATES. 469

There is no pretence that there is any thing untrue is3].
in any of the averments which the plea contains on
the subject of the proceedings at law — such as that a
judgment was obtained by the respondent — that the
same is in full force, &c. The first averment in
the plea, which will require a more particular consi-
deration, is the one denying that the respondent had
at any time obtained from £• Williams, any allow-
ance or payment, for, or on account of his being bail
for Gibson, in an action brought against him by one
Evans. The respondent had been permitted, as ap-
pears by the facts of the case, to retain out of a fund,
on which the appellant had a claim, a considerable
suW to save him harmless against this responsibility,
amwhich was, in all probability, allowed to him, on
the trial at law. If, therefore, it could have been
shown that Blake had been fully indemnified, or
paid for this liability from any other quarter, and that
this fact had come to the appellant's knowledge
since the judgment at law, it would seem no more
than equitable, notwithstanding these proceedings,
thus far to open the account between them. But
has this been done ? The allegation of the bill in
substance is, that Blake has been twice indemnified
for the same loss, or, in other words, that he had
been twice reimbursed the monies which he paid as
the bail of Gibson. This fraud, which is so unhe-
sitatingly charged upon the respondent, is not made
out by any testimony in the cause. Independent of
Blake's positive and absolute denial, which is equi-
valent to the testimony of one witness, there is no-
thing in the deposition of Williams, who is the only

470 CASES IN THE SUPREME COURT

i82i. witness to this point, to establish the fact as stated in
the bill. This gentleman has been twice examined,
once in the year 1805, as a witness in the trial at
law ; and again, as a witness in this cause. On his
first examination, he stated that he was inform-
ed by Blake that he held in his hand about
6,30(1 dollars, which hdd been received of Henry
Newman, as an indemnity for his having become
bail for Gibson in an action by some person whose
name he did not recollect, on which pretence Blake
refused to pay him this sum. In his second deposi-
tion, which was taken in this cause, he swears that
he was informed by Blake, that he bad received fom
Newman about 6000 dollars, which he shouldjre-
tain, in consequence of his liability to Evans, a^he
bail of Gibson ; and that he, Williams, allowqHbe
respondent to apply this money for that purpose.
Now, admitting that Blake retained these monies,
and with the consent of Williams, who, it appears
however, had no interest in, or control over them,
with intent to apply them in this way, where is there
any proof whatever, in contradiction of Blake's an-
swer that he eveif did make that use of them. He
might have securities of Gibson of various kinds,
the avails of which he might have a right to retain
for the same object, but if he actually made only
one appropriation for such object, no one could
complain* That the fund spoken of by Wil-
liams, which arose out of Newman's note, was
not applied to the indemnity which has so often been
mentioned, appears not only by an averment in Blake's
plea to that effect, but by the testimony of Gibson

OP THE UNITED STATES.

471

himself, a witness of the appellant, who declares,
that the note of Newman was subject to his order ;
that no privity existed between Williams and Blake
respecting the same ; and that it had not been placed
in Blake's hands as an indemnity for becoming his
bail It follows, therefore, that Blake could, not
have obtained from Williams any allowance or pay-
ment on account of this responsibility ; and we ac-
cordingly find, from the bill itself, that on a settle*
ment which took place between Blake and Gibson,
in November, 1796, about two months after the ac-
ceptance in favour of the appellant, the former fell
in debt to the latter a sum exceeding two thousand
dollars, the payment of which, by Blake, is one sub-
ject of complaint in the appellant's bill. Now, it is
more than probable, that in this settlement, Gibson
received a credit for the very money of whieh Wil-
liams speaks, as Gibson acknowledges it to have
been a final settlement of all the accounts between
him and Blake. The Court, therefore, is entirely
satisfied, that the averment in the respondent's plea,
which it has just been considering, is fully establish-
ed, and that the proof is such as to leave no room
whatever to believe, that Blake was ever repaid the
moneys he advanced as the bail of Gibson, from any
other fund than that which the appellant had con-
sented should stand pledged for that purpose. As
little truth is there in the allegation, that what Wil-
liams could testify on tbis*ubject, was unknown to
Hughes during the pendency of the action at law ;
for Williams, who is examined as a witness for the

1821.

Hughes

v.
Blake.

472 CASES IN THE SUMtEME COURT

1851. plaintiff in this suit, swears to the very fact, which ht
had been produced to prove in the action at law re-
specting the declarations of Blake concerning New-
man's note ; and this he does without any variation
from his former testimony, materially affecting the
present suit The other averment, therefore, in the
plea, that no new evidence has come to the appel-
lant's knowledge respecting the matters in litigation, •
is fully and satisfactorily established.
a ^plication The truth of the plea being thus made out, what
atomtoitfSii is to be the consequence ? U the rule of Courts of

sufficiency in

£d »jift2t (Si CI"'*? 'n England is to be applied, there can be no
tofed^*nti8hto doubt. If a plea, in the apprehension of the com-'
SFSct wpoillt plainant, be good in matter, but not trye in fact; he
may reply to it, as has been done here, and proceed
to examine witnesses in the same way as in case of
a replication to an answer : but such a proceeding is
always an admission of the sufficiency of the plea
itself, as much so, as if it had been set down for ar-
gument and allowed ; and if the facts relied on by the
plea are proved, a dismission of the bill on the hear-
ing is a matter of course. Whatever objection there
may be to adhering strictly to this course of proceed-
ing in every description of cases, it is considered as
the long and established practice of a Court of equi-
ty, which ought not lightly to be departed from. It
is not perceived, that any serious mischief can arise
from it. Counsel will generally be able to decide
on the merits of any defence which may be spread
on a plea, and if insufficient, it is not probable they
will do otherwise than set it down for argument

OF THE UNITED STATES. 473

Nor will they ever take issue on it, but in a case lftu.
which presents a very clear and sufficient defence, if
the fact* be proved. If a replication should be filed
inadvertently, the Court would have no difficulty in
permitting it to be withdrawn. But if the plaintiff
will persevere in putting the defendant to the trou-
ble and expense of proving his plea, it must be from
an entire conviction that it contains a substantial de-
fence, and in such case there is no hardship in a
Court's considering it in the same light But with-
out applying the rale which has been mentioned, to
the present case, the Court has no difficulty in say-
ing, that the matters set forth in this plea, which his
been drawn with great care and judgment, constitute
a complete defence to the present action, and that
the appellant has foiled ia showing any good cause
why the judgment at law should, not be conclusive
on all the matters stated in the bill. Whatever claim
he may at one time have had on Blake for one fourth
of 75,000 dollars, secured by Barrel's notes, if Blake
knew at the time of taking them of his interest to
that extent, or for not taking a note for that amount
in the name of Hughes himself, it is very certain,
that with a full knowledge on his part, that Blake
utterly denied a liability to account with any one but
Gibson, he came to a settlement with him, by allow-
ing him to accept of Gibson's draft, in his favour,
in such way as to charge the fund on which it was
drawn with so many deductions as entirely to ex-
haust it And when he is apprised of this condi-
tional acceptance by his agent, or the person who
Vol VI. 60

474 CASES IN THE StTPREME COURT

1821. presented the draft, instead of returning it, or making
any complaint, he acquiesces in it for seven or eight
years, and then brings an action to enforce this very
contract of acceptance, which he must have known
put it in the power of the acceptor to make all the
deductions from the fund in his hands, which were
designated in the act of acceptance. After six years
litigation in a Court of law, it is now attempted to
revive the same controversy, at least in part, on ah
allegation that Blake received a compensation in
some other way than out of the fland, on which the
bill in his favour was drawn* for one of the liabili-
ties mentioned in the acceptance. That this was
not the case, it abundantly proved: But if Blake
had other funds of Gibson, besides the note of Bar-
rel, which he also considered as under Gibson's ex-
clusive control, out of which his indemnity as bail
might have been obtained, what right has Hughes
now to complain, that such other funds were* not
applied in that way, after he had agreed or consent-
ed that this indemnity should come out of those
funds of Gibson in the hands of Blake, out of which
he was to be paid. Having come into the arrange-
ment, Blake might well think himself at liberty, as
it seetns he did, to apply the other funds of Gibson
in any other way which he and Gibson might think
proper. Whether Gibson be liable to the appellant
for the subtraction of any part of his fund for the
payment of his debt, is a question not before the
Court; but we cannot see that an ' application of
them in express conformity with the agreement of

OP THE UNITED STATES. 476

the parties to this suit, can give the appellant any tan.
claim on the respondent. At any rate, the plea
having denied all the allegations which were relied
on as grounds for removing the bar which k was an-
ticipated would be interposed to the appellant's bill,
and all the matters stated in the plea, on which issue
was taken, having been fully proved, the Court is of
opinion, that the decree of the Circuit Court must
be affirmed, with costs.

Decree affirmed.*

a Vide I Mason's Rep. 515. S. C.

(Local Law. Practice.)

Bartle v. Coleman.

Under the act of Assembly of Virginia, the defendant may enter spe>
rial bail, and defend the toil at any time before the entering np of
judgment upon a writ of inquiry executed ; and the appearance of
the defendant, or the entry of special bail, before such judgment,
discharges the appearance bail.

If the defendant does not appear, or gire special bail, the appearance
bail may defend the suit* and is liable to the same judgment as the
defendant would hare been liable to; but the defendant cannot ap-
pear and consent to a reference, the report and judgment on which
is to bind the appearance bail as well as himself. Such a joint judg-
ment is erroneous, and will be reversed as to both.

This cause was argued by Mr. Swann, forth* jftrcftftft*

Bartle

Coleman.

Mmh 10th

476 CASES IN THE SUPREME COURT

tail, plaintiff in error/ and by Mr. Jones, and Mr. Tayler,
for the defendant in error/

Mr. Chief Justice Marshall delivered the opi-
nion of the Court.

This is a writ of error to a judgment rendered
by the Circuit Court for the District of Colombia
and county of Alexandria, against Andrew Bartle
and Samuel Bartle, on a writ issued by George
Coleman against Andrew Bartle, on the service of
which, Samuel Bartle became bail for his appear-
ance. The defendant in the Court below not hav-
ing entered his appearance, a conditional judgment
was entered at the rules held in the clerk's office,
against the defendant and his appearance bail. This
being an action on the case, the judgment at the
rules was for no specific sum, but for the damages
which the plaintiff in that suit has sustained, which
damages are to be inquired into, and ascertained by
a jury. After this writ of inquiry shall be executed,
and not till then, a final judgment for the damages
assessed by the jury is rendered by the Court. In
the mean time, the cause stands on the Court docket
for trial.

The act of Assembly respecting this subject is in
these words: "And every judgment entered in the
office against a defendant and bail, or against a de-

a He cited Danlop v. Laporte, 1 Hen, t> Mun. 22. Gray v.
Hines, 4 Hen. 4> Mun. 437. Fisher v. Riddle, 1 Hen. <fr Mun.
329. •

b They cited Holdup y. Otway, 2 fVmt. Sound. 106. and the
cases there cited. Gould v. Hammersley, 4 Taunt. 148.

OP Tftte UNITED STATES. 477

fendant and sheriff, shall be set aside, if the defend- mi.
ant at the succeeding Court shall be allowed to ap-
pear without bail, put in good bail, being ruled so to
do, or surrender himself in custody, and shall plead
to issue immediately." " If the defendant shall fail
to appear, or shall not give special bail, being ruled
thereto by the Court, the bail for appearance may de-
fend the suit, and shall be subject to the same judg-
ment and recovery as the defendant might or would
be subject to, if he had appeared and given special
bail." •

The Courts of Virginia have never construed this
act strictly as to time. Although the absolute right
given to the defendant to appear and set aside the
judgment rendered in the office, is limited to " the
succeeding Court," he has always been allowed to
appear, and set it aside, at any time before it became
final. In all actions which sound in damages, the
judgment cannot become final, until the damages
shall be ascertained for which it is to be rendered.

In other respects, too, this law which authorizes a
judgment against the appearance, or common bail,
without the service of process on him, has been con-
strued with great liberality. The cases which have
been cited, show that the decisions in the Court of
Appeals of Virginia, have settled principles which
seem to decide this case. It has not only been deter-
mined that the defendant may enter special bail, and
defend the suit at any time before a final judgment,
but also, that if he appears and pleads, without giv-
ing special bail, or appears and confesses judgment,
the appearance bail is discharged.

478 -CASES IN THE SUPREME COURT

1891. It is also well known te be the settled practice of

Virginia, if special bail be given, to discharge the ap-
pearance bail, although the defendant should not ap-
pear, but the judgment should become final, either on
his default, or on the execution of a writ of inquiry.

it is then settled, that the appearance of the de-
fendant, or the entry of special bail, before final
judgment, discharges the appearance bail.

Let these principles be applied to the case before
the Court. While the writ of inquiry was depend-
ing, we find this entry on the record. " In the case
of George Coleman, plaintiff, and Andrew Bartle,
defendant ; and Andrew Bartle, plaintiff, and George
Coleman, defendant ; by consent of parties this case
is referred to Joseph Deane," &c.

Could this rule be made without consent ? Or
could this consent be given without the appearance
of the party, by himself or his attorney ? Both these
questions must be answered in the negative. What
party, then, did appear and give this consent ? Was it
Andrew Bartle, the defendant in the cause, who is
named as the party, or was it Samuel Bartle, his ap-
pearance bail, who is not named ? In addition to the
omission of the name of Samuel Bartle, an omission
which could not have been made had he actually ap-
peared, and been a party to the rule, it is to be ob-
served that he had no power to consent to it. The
law allows him to defend the suit, but does not allow
him to refer it to arbitrators. We do not hazard
much in saying, that no Court would or ought to per-
mit such a rule as this to be made, without the con-
sent of the defendant given in person, or by his at-

OP THE UNITED STATES. 479

torney. But were it even supposed to be in the 1821.
power of Samuel Bartle to refer the suit of Cole-
man against Andrew Bartle, be could not refer that
of Andrew Bartle against Coleman ; and this suit
also is embraced in the same rule.

It is then apparent, that it is Andrew Bartle who
consented to this rule.

It has been contended, that the consent of Samuel
Battle must also be implied. We db not think so.
It is reatitnable to suppose that his name would have
appeared, had he been a party to the rule. But it
was not necessary that he should be a party to it.
Andrew Bartle was himself competent to make this
reference, and the appearance bail never comes into
Court, unless it be to defend the suit in consequence
of the non-appearance of the defendant. But, were
it even true that the consent of Samuel Bartle could
be inferred, it would, nevertheless, be also true, that
Andrew Bartle appeared, by the admission of the
plaintiff ; and such appearance, according to the de-
cisions in Virginia, discharges his bail.

In the mode pursued by the clerk, in ma-
king his entry, the usual form of saying " this day
came the parties," &c is not pursued. But this is
immaterial, because the parties perform an act in
Court, which could not be performed without ap-
pearing ; they consent to a rule which implies ap-
pearance, and the form of the entry cannot af-
fect its substance. Were it otherwise, the ap-
pearance of the defendant is entered in the usual
form before final judgment On the return of the

480 CASES IN THE SUPREME COURT

18^1. award, the following entry is made : " And now
here, &c at this day, &c. came, as well the plain-
tiff aforesaid, by his said attorney, as the said defend-
ant, by Thomas Swan, his attorney, and the follow-
ing award was returned," &c The award is then
recited, which shows, that the arbitrators proceeded
on notice to Andrew Battle only, and the judgment
of the Court is immediately rendered for the amount
of the award against "Andrew Battle, the defendant,
and Samuel Battle, the security for his appearance."
Yet the appearance of Andrew Battle is formally
entered on the record previous to this judgment If,
instead of entering the judgment in pursuance of the
award, it bad been entered in pursuance of the con-
fession of the defendant, this would have been the
very case cited from 1 Hen. fr Munf. 329. And
what distinction can be taken between this case
and that ? The counsel for the defendant in error
says, that a judgment by confession is a different
judgment from that entered in the office, and, there-
fore, must be a substitute for it received by consent
of the plaintiff. And is not this also a different
judgment from that rendered in the office ? And is
it not entered at the instance of the plaintiff ?

Were it necessary to pursue this argument further,
we should all be of opinion, that judgment could not
be rendered against the appearance bail on this
award, and without executing the writ of inquiry,
unless by his consent But as we are of opinion,
that the appearance of the defendant has discharged
his bail, it is unnecessary to pursue the subject

OF THE UNITED STATES. 481

' farther. The judgment against Samuel Bartle lasfc

is erroneous, and as it is joint, it must be reversed *^££mt

against both. *•

Judgment reversed. n

(Chancery.)

Prevost v. Gratz et at.
Gratz et al. v. Prevost.

Td establish the existence of a trust, the onus probandi lies on the

< party who alleges it.

In general, length of time is no bar to a trust clearly established to
have once existed ; and where fraud is imputed and preyed, length
of time ought not to exclude relief.

But as length of time necessarily obscures all human evidence, and
deprives parties of the means of ascertaining the nature of the ori-
ginal transactions, it operates, by way of presumption, in favour of
innocence, and against imputation of fraud.

The lapse of forty years, and the death of all the original parties,
deemed sufficient to presume the discharge and extinguishment of a
trust, proved once to have existed by strong circumstances ; by
analogy to the rule of law, which after a lapse of time presumes the
payment of a debt, surrender of a deed, and extinguishment of a

„ trust, where circumstances require it.

Appeal from the Circuit Court of Pennsylvania.

This was a bill in Chancery, filed in the Court
below, by the plaintiff George W. Prevost, as admi-
nistrator de bonis non, with the will, annexed, of

Vol. VI. 61

MS CASES IN THE SUPREME COURT

ltti* George Ciogban, deceased, against the defendant*
S^T^t' ^*Doa Grata, Joseph Gratz, and Jacob Gratz, ad-
ministrators of the estate of Michael Gratz, deceased,
for a discovery and account of all the estate of G.
Croghan, which had come to their hands, or posses-
sion, either personally or as the representatives of
M. Gratz, Who was one of the executors of G*
Croghan, who died in August, 1 782, having appointed
M. Gratz, B. Gratz, T. Smallman, J. Tunis, and W.
Powell, executors of his last will and testament.
All the executors, except W. Powell, died before the
commencement of the suit. B. Gratz died in 1800,
and M. Gratz in 1811. W. Powell was removed
from his office as executor in the manner prescribed
by the laws of Pennsylvania, after the death of ML
Gratz ; and the plaintiff was thereupon appointed
administrator de bonis non, with the will annexed.
The bill charged M. Gratz and B. Gratz, (the re-
presentatives of B. Gratz not being made parties,)
with sundry breaches of trust in respect to property
conveyed to them in the lifetime of the testator, and
with other breaches of trust in relation to the assets
of the testator after his decease ; and also charged
the defendants with neglect of duty in relation to the
property and papers of G. Croghan, which had come
to their hands since the decease of M. Gratz.

The first ground of complaint, on the part
of the plaintiff, related to a tract of land lying
on Tenederah river, in the State of New- York,
which was conveyed by G. Croghan Jo M. Gratz,
as containing 9,050 acres, by deed, dated the 2d of
. March, 1770, for the consideration expressed in the

OP THE UNITED STATES.

deed of £1,800. The deed was upon its face abao* tail,
late, and contained the covenants of general war* S^TV~W
ranty, and for the title of tbe grantor, which are r.
usual in absolute deeds. At the time of the exeat- m*'
tion of the deed, G. Croghan was in the State of
New-York, and M. Gratz was at Philadelphia.
The land, thus conveyed, was, in the year 1795, and
after the death of G. Croghan, sold, by M. Gratz,
to one Lawrence, in New- York, for a large sum of
money. The plaintiff alleged, that this conveyance
made by G. Croghan to M. Gratz, though in form
absolute, was in reality a conveyance upon a secret
trust, to be sold for the benefit of the grantor ; and
he claimed to be allowed the value of the lands at
the time the present suit was brought, upon the
ground of a fraudulent or improper breach of trust
by the grantee, or at all events to the full amount of
the profits made upon the sale in 1795, with interest
up to the time of the decree. This trust was denied
by the defendants, in their answer, so far as respects
their own knowledge and belief; and if it did ever
exist, they insisted, that the land was afterward*
purchased by M. Gratz, with the consent of G.
Croghan, for the sum of £850 15s. 5d. New-York
currency. It appeared from the evidence, that G.
Croghan, and B. and M. Gratz, were intimately ac-
quainted with each other, and a variety of accounts
were settled between them, from the year 1769, to
a short period before the death of G. Croghan : that
he was involved in pecuniary embarrasments, and
extensively engaged in land speculations : and some
portions of his property were conveyed to one or

434 CASES IN THE SUPREME COURT

18*1 . both the Messrs. Gratz upon express and open trusts.

Prevoet

It also appeared, that in an account which was set-
tled at Pittsburg, in May, 1775, between B. and M.
Gratz- Gratz, and G. Croghan, there was the following
item of credit :

• a August, 1774. By cash received
of Howard, for 9,000 acres of
land on Tenederah, sold him for
£860 15s. New-York currency,
is here, - £797 12 6

Interest on £797 12s. 6d. from Au-
gust, 1774, to May, 1775, is eight
months, at 6 per cent. - - 3118 1

£829 10 7

Upon the back of another account between B. &
M. Gratz and G. Croghan, which was rendered to
the latter in December, 1779, there was a memoran-
dum in the hand-writing of G. Croghan, in which he
enumerates the debts then due by him to B. & M.
Gratz, amounting to £1,220 Is. 2d. and then adds
the following words : " paid of the above £144
York currency, besides the deed for the land on the
Tenederah river 9,000 acres patented :r which me-
morandum appeared to have been made after the
conveyance of the land to M. Gratz. It also ap-
peared that the value of the land, as fixed in the ac-
count of May, 1775, was its full value; which was
proved by public sales of adjoining lands at the same
period when Howard was asserted to have purcha-
sed the land. A counterpart of the. account of 1775

OF THE UNITED STATES. 485

was also in the possession of M. Gratz, in which the mi.
word Howard was crossed out with a pen, but so
that it was still perfectly legible, and the name of
Michael Gratz, in his own hand- writing, written
Qver it M. Gratz continued in possession of the
Tenederah land, paid great attention to it, and in-
curred great expenses in making improvements on it,
after the year 1786. The mother of the plaintiff
was the heir of G. Croghan, and it was proved that
his father had unreserved and frequent access to the
papers of G. Croghan, and resided several years in
Philadelphia, with the view of investigating the si-
tuation of the estate, and finally abandoned all hopes
of deriving any benefit from it. The account of
May, 1775, from which the alleged trust was sought
to be proved, was delivered over to him by the re-
presentatives of M. Gratz, among the other papers
of G. Croghan.

The second principal ground of the plaintiffs
complaint respected a judgment obtained by the re-
presentatives of one W. M'Hvaine, against G. Cro-
ghan, which was purchased by B. Gratz, during the
life-time of G. Croghan, and was by him assigned to
S. Gratz, one of the defendants, who, under one or more
executions issued on that judgment, became the pur-
chaser of certain lands belonging to G. Croghan. It
appeared, that on the 30th of March, 1 769, G. Croghan
gave his bond to W. M'Hvaine, for the sum of £400,
which debt by the will of M'Hvaine, became on his
death vested in his widow, who afterwards intermar-
ried with J. Clark* A judgment was obtained upon
the bond against G. Croghan, in the name of W,

4S6 CASES m THE SUPREME COVRT

lest. Humphreys, executor of M'ilvaine, in the Coart of
Common Pleas in Westmoreland County, Pennsyl-
vania, aft the October term, 1774, upon which a
fi.fa. issued, returnable to the April term of the same
Court, in 1775. On the 8th of March preceding
the return day of the jt /a. Bernard Gratz purcha-
sed this judgment from Clark, and received an a»»
signment of it, for which he gave his own bond for
£300, and interest. About this time G. Croghas
was considerably embarrassed, and several suits
were depending against him. Bernard Gratz, hav-
ing failed to pay his bond, was sued by Clark, and
in 1794 a judgment was recovered against him for
£89 6s. lOd. the balance then due upon the bond,
which sum was afterwards paid by M. Gratz* The
judgment of Humphreys against G. Croghan was
kept alive from time to time, until 1786, and in that
year, on the death of Humphreys, J. Bloomfield was
appointed administrator de bonis nan with the will
annexed of Humphreys, and revived the judgment,
and it was kept in full force until it was finally le-
vied on certain lands of G. Croghan. In the year .
1800, B. Gratz assigned this judgment to his ne-
phew, S. Gratz, one of the defendants, partly in con-
sideration of natural affection, and partly in consi-
deration of the above sum of £89 bs. lOd. paid to-
wards the discharge of the bond of B. Gratz, by his
(Simon's) father, M. Gratz. S. Gratz, having thus
become the beneficial owner of the judgment, pro-
ceeded to issue execution thereon, at different times,
between September, 1801, and November, 1804,
eaused the same to be levied on sundry tracts of land

OP TBE UNITED STATES. 48?

of G. Croghan, in Westmoreland and Huntutgtov

counties, of five of which be, being the highest bid-
der at the sale, became the purchaser. The tracts
thus sold, contained upwards of 2,000 acres, and
Were sold for little more than 1,000 dollars* The
title to some part of this land is still in controversy.
Shortly after the assignment of the judgment to B.
Gratz, on the 16th of May, 1775, G. Croghan, by
two deeds of that date, conveyed to B. Gratz, for a
valuable consideration therein expressed, about
46,000 acres of land. A declaration of trust was ex-
ecuted by B. Gratz on the 2d of June, 1775, by
which he acknowledged that these conveyances were
in trust to enable him to sell the same, and with the
proceeds to discharge certain enumerated debts of G.
Croghan, and among them the debt due on the M'll-
vaine bond, and to account for the residue to G.
Croghan.

The bill charged, that the assignment of this judg-
ment was procured by B. and M. Gratz, or both of
them, after the death of G. Croghan, and that no*
thing was due upon the judgment ; or if any thing was
due, it was paid upon the assignment out of moneys
belonging to the estate of G. Croghan. But the
evidence disproved these charges, and showed, that
the assignment was made to B. Gratz in the lifetime
of G. Croghan, and that the judgment never was
paid or satisfied by G Croghan, or out of his estate.

The defendants, in their answer, denied, to their
best knowledge and belief, all the material charges
of the bill ; and upon replication, the cause was heard
in the Court below upon the bill, answer, evidence,

488 CASES IN THE SUPREME COURT

1821. aid exhibits; and a decree was pronounced dis~
missing the bill as to all the charges, except that re-
specting the lands lying on Tenederah river ; and
as to this, a decree was pronounced in favour of the
plaintiff for all the profits made upon a sale of those
lands by M. Gratz. From this decree, both parties
appealed to this Court

Mra«y2Sto. Mr. Webster and Mr. D. B. Ogden, for the plain-
tiff, argued, (1.) That not only ought M. Gratz to
be considered as a trustee of the Tenederah lands,
but a decree ought to have been given for the value
of the lands at the date of the decree, instead of the
amount for which the lands were sold by him*
They insisted, that the original existence of the trust
was fully proved by the evidence, and being thus
clearly established, the burthen of proof was on the
defendants to show how, and by what means, it had
been discharged. M. Gratz being a trustee to sett,
he could not buy.* This is the universal, inflexible
rule of a Court of equity : and even if the trust is
to pay a debt due to the trustee himself, still he is a
trustee for the surplus, subject to the same prohibi-
tion : and in this case never having sold the land in
execution of the trust, he must now be regarded as
still holding it, and ought to be accountable for its
value at the present time, and not at the time of the
pretended sale. If he now held the land, the Court
would compel him to account for its present value,

a 10 Vet, 423. 1 Ves. sen. 9. 2 Bro. CL Rep. 400. 2 Johns.
Ck. Rep. 252. 5 Vet. 794. 4 Vet, 497. 6 Vet. 631.

Gratz.

OP THE UNITED STATES. 489

or to reconvey it ; but he does hold it in equity, and mi.
no act of his ought to prejudice the cestui que trust. v^v^'
The lapse of time is nothing, unless it appear that ^ t.
he knew the purchase by the trustee, and must,
therefore, be presumed to have acquiesced/ But
here no such knowledge is proved, and, therefore, no
such acquiescence can be presumed. (2.) They
insisted, that S. Gratz had no right to purchase the
lands sold at the sheriff's sale under the M(Ilvaine
judgment ; but under the circumstances of the case
ought to be considered as holding them in trust for
the plaintiff. This being a proceeding without any
notice to the party interested, cannot be sustained*
The notice given by the scire facias was only to B.
Gratz, the executor of G. Croghan: that is, the
owner of the judgment revived it by notice to him-
self. It is a settled principle, that an executor can-
not purchase the property of his testator ;' and the
purchaser of an equity takes it subject to all claims.
Besides, this is a judgment which the law would pre-
sume to be satisfied from length of time ; which is
attempted to be executed by the judgment creditor
who has in his own hands the funds with which it
was to be satisfied, and thus attempts to convert a
legal right into an instrument of injustice, which
forms a strong ground for equitable relief/

Mr. Pinkney and Mr. Sergeant, contra, contended,
(1.) That the present plaintiff had no right, abne,
to call the defendants to account for the alleged trust

a 12 Vui b 2 Johns. Ch. Rep. 252. c 3 Fes.jm. 17a
Vol. VI. 62

490 CASES IN THE SUPREME COURT

is*i. *s to the Tenederah lands, nor jointly with othet
parties as the administrator de bants nan, with the
will annexed^ of G. Croghan. Equitable estates de-
scend as well as legal estates. Mrs. Prevost, the
heir of Croghan, died, while the supposed trust ex-
isted, leaving several children, besides the plaintiff,
who ought also to have been made parties, if he is
to be considered as suing as a parcener. The sale
of the trust estate indeed extinguishes the right of
the heirs to the land, but it entitles them to the mo*
ney for which it was sold, which now represents and
stands in the place of the land. Nor has Croghan's
will any effect upon the matter. The will empow-
ers a majority of his executors, (of whom B. Gratz
during his life was always to be one,) to sell such of
his lands as they should think fit, for the payment of
his debts. It does not devise to the executors to be
sold, but gives them a naked authority to sell and
convey. Even admitting that the Tenederah lands
fell within the authority, the executors could only
have sold the equitable estate of Croghan, which on
bis death descended to his heir. But this supposes
that very equitable estate, for the existence of which
we contend. But the executors did not sell that equita*
ble estate. M. Gratz, though one of those executors,
did not sell under the will. He sold, not the equita-
ble interest merely, but the whole estate, and threw
the equitable claimants under Croghan, upon the
surplus of the proceeds which he could not appro*
priate. To sell under the will, he must have had
the sanction of the other executors, which he had
not; and the plaintiff, as administrator de bonis noft,

OF THE UNITED STATES. 49l

could not have authorized it, because he did not be- 18*1.
come administrator until M. Gratz had rendered a
sale bj his orders or consent impossible. The will,
therefore, did not reach the case, and cannot
now, in any degree, control it. Nor does the inte-
rest which creditors may have in the proceeds,
make it personal estate in Croghan, or subject it to
the control of his administrator de bonis nan.
(2.) The counsel argued that there was no suffi-
cient proof of the existence of any such trust, as
that alleged respecting the Tenederah lands, but
that M. Grata became the absolute owner of the
lands, with the knowledge and consent of Croghan.
Fraud is never to be presumed, especially after such
a lapse of time ; and even if the trust ever existed,
equity will rather presume it to be satisfied, than
indulge a presumption of fraud, where the parties
are dead, and the evidence respecting the -transaction
is lost0 Even if there was here a trust to sell, it
was a trust to sell for a fixed price, created by a
person of full age, and full knowledge of the circum-
stances, for the benefit only of the trustee and him-
self. The reason of the rule, that a trustee cannot
purchase, is, that the trustee might be tempted from
his duty, and buy at an inadequate price. Where
the power is general, or, where other persons are in-
terested in the execution of the trust, it may be con-
ceived to be a salutary rule, though sometimes ope-
rating severely. But where the trustee is a creditor,

a 12 F««. 261. 374. 2 Ves. 581. 3 P. Wm». 266. * Ml 67:
3 M. 105. 3 Bro. Ch. Rep. 640. 2 Scho. 4- Ltjr. 41.71.

492 CASES IN THE SUPREME COUftT

18*1. where the price is fixed, and no one else is interested,
it would be difficult to assign any good reason why
the trustee might not be the purchaser. (3.) As to
the M'llvaine judgment, they principally relied upon
the same grounds which are stated in the opinion of
the Court below, quoted infra in a note to the opi-
nion of this Court in the present case.

March iztk. Mr. Justice Story delivered the opinion, of the
Court, and after stating the proceedings in the Court
below, proceeded as follows :

The first point upon which the cause was argued,
respects the tract of land on the Tenederah River.
It appears from the evidence that this tract of land,
containing 9,050 acres, was conveyed by Col. Cro-
ghan to Michael Gratz, by a deed bearing date on
the 2d of March, 1 770, for the consideration expressed
in the deed, of £ 1 ,800. The deed is upon its face abso-
lute, and contains the covenants of general warranty,
and for the title of the grantor, which are usual in ab-
solute deeds ; but are unnecessary in deeds of trust.
At the time of the execution of the deed, Col. Cro-
ghan was in the State of New- York, and Michael
Gratz was at Philadelphia. The land was, after the
death of Col. Croghan, and in the year 1 795, sold
by Michael Gratz, to a Mr* Lawrence, in New-
York, for a large sum of money. The plaintiff con-
tends that this conveyance made by Col. Croghan
to Michael Gratz, though in form absolute, was in
reality a conveyance upon a secret trust, to be sold
for the benefit of the grantor ; and in this view of
the case, he contends farther, that he is entitled to be

OF THE UNITED STATES. 493

allowed the full value of the lands at the time that u*i.
the present suit was brought, upon the ground of a
fraudulent or improper breach of trust by the grantee,
or at all events, to the full amount [of the profits
made upon the sale in 1795, with interest up to the
time of the Decree.

The attention of the Court will, therefore, be di- Proof of die

7 original eiitt-

rected, in the first place, to the consideration of the J£jjj gf g£
question, whether this was a conveyance in trust,
and if so, of what nature that trust was ; and, in the
next place, whether that trust was ever lawfully dis-
charged or extinguished. If there be still a subsist-
ing trust, there can be no doubt that the plaintiff is
entitled to some relief.

It appears from the evidence that Col. Croghan,
and Bernard and Michael Gratz, were intimately
acquainted with each other, and a variety of ac-
. counts was settled between them, from the year
1769, to a short period before the death of Col.
Croghan. During all this period, Col. Croghan ap-
pears to have had the>most unbounded confidence in
them ; and particularly by his will, made in June
1782, a short time before his decease, he named
them among his executors, and gave to Michael
Gratz, in consideration of services rendered to him,
five thousand acres of land, and to his daughter Ra»
chel Gratz, one thousand acres of land on Charter
Creek, with an election to take the same number of
acres in lieu thereof, in any other lands belonging to
the testator. The situation of the parties, therefore,
was one in which secret trusts might, probably, ex-
ist, from the pecuniary embarrassments in which

494 CASES IN THE SUPREME COURT

last. Col. Croghan appears to have been involved, as well
as from bis extensive land speculations. And, in
point of fact, some portions of his property were con-
veyed to one or both of the Messrs. Gratz, upon ex-
press and open trusts.

Still, however, the burthen of proof to establish
the trust in controversy, lies on the plaintiff. The
circumstances on which he relies are, in our judg-
ment, exceedingly strong in his favour ; and suffi-
cient to repel any presumption against the trust
drawn from the absolute terms of the deed. In a*
account which was settled at Pittsburg, in May,
1775, between Bernard and Michael Gratz, and CoL
Croghan, is the following item of credit :
u August, 1774. By cash received
of Howard, for 9,000 acres of
land at Tenederah, sold him for
£850 15s. New-York currency,
is here, - £797 12 6

Interest on £797 12s. 6d. from Au-
gust, 1774, to May, 1775, is eight
months, at 6 per cent. - - 31 18 I

£829 10 7

There is no question of the identity of the land
here stated to be sold to Howard, with the tract
conveyed to Michael Gratz by the deed, in 1770. If
the conveyance to Michael Gratz had been originally
made for a valuable consideration then paid, it seems
utterly impossible to account for the allowance of this
credit upon any sale at a subsequett period. It seems

OF THE UNITED 8TATE&. 485

to as, therefore, that the only rational explanation of issi.
this transaction is, that the conveyance to Michael

Presort

Gratz, though absolute in form, was, in reality, a ▼.
trust for the benefit of Col. Croghan. What the Gnrt*
exact nature of this trust was, it is, perhaps, not very
easy now to ascertain with perfect certainty. It
might have been a trust to sell the lands for the be*
nefit of Col. Croghan, and to apply the proceeds in
part payment of the debts due from him to Bernard
an£ Michael Gratz ; or, it might have been a sale of
the lands directly to Michael Gratz, in part payment
of the same debt, at a price thereafter to be agreed
upon, and fixed by the parties; and, in the mean
time, there would arise a resulting trust, in favour of
Col. Croghan, by operation of law.

Time, which buries in obscurity all human trans-
actions, has achieved its accustomed effects upon
this. The antiquity of the transaction — the death
of all the original parties, and the unavoidable diffi-
culties as to evidence, attending all cases where
there are secret trusts and implicit confidences be-
tween the parties, render it, perhaps, impossible to
assert, with perfect satisfaction, which of the two
conclusions above suggested, presents the real state
of the case. Taking the time of the credit only, it
would certainly seem to indicate that the trust was,
unequivocally, a trust to sell the land. But there
are some other circumstances which afford consider-
able support to the other conclusion. Upon the back
of an account between B. & M. Gratz, and CoL
Croghan, which appears to have been rendered to
the latter, in December, 1769, there is a memoran-

496 CASES IN THE SUPREME COURT

1821. dam in the hand-writing of CoL Croghan, in which
he enumerated the debts then due by him to B. &
M. Gratz, amounting to £1,220 Is. 2d. and then adds
the following words : " paid of the above £144 York
currency, besides the deed for the land, on the Te-
nederah River, 9,000 acres patented." This memo-
randum must have been made after the conveyance
of the land to M. Gratz, and demonstrates that the
parties intended it to be a part payment of the debt
due to B. & M. Gratz, and not a trust for any other
purpose. The circumstance too, that the word
" paid" is used, strongly points to a real sale to M.
Gratz, rather than a conveyance for sale to any third
person. And if the sale was to be to M. Gratz, at
a price thereafter to be fixed between the parties, the
transaction could not be inconsistent with the terms
of the credit, in the account of 1775. It will be re-
collected that M. Gratz resided at Philadelphia, and
the conveyance was executed by Col. Croghan at
Albany. There is no evidence that the consideration
stated in the deed of £1,800, or any other considera-
tion, was ever agreed upon between the parties ; and
the circumstance that no sum is expressed in the
memorandum of Col. Croghan, shows, that at the
period when it was made, no fixed price for the lantf
had been ascertained between the parties. If, then,
it remained to be fixed by the parties, whenever that
value was agreed upon, and settled in account, the
resulting trust in Col. Croghan would be completely
extinguished. It is quite possible, and certainly con-
sistent with the circumstances in proof, that B. &
. M. Gratz might not have been acquainted with the

OF THE UNITED STATES. 497

real value of the land, or might be unwilling to take mi,
it at any other value than what, upon a sale, they
might find could be realized. From the situation of
Col. Croghan, his knowledge of the lands, and
his extensive engagements in land speculations, igno-
rance of its value can scarcely be imputed to him.
If, therefore, M. Gratz afterwards sold it to Howard,
and Col. Croghan was satisfied with the price, there
is nothing unnatural in stating the credit in the man-
ner in which it stands in the account in 1775. It
would agree with such facts, and would by no means
repel the presumption, that the land was not origi-
nally intended to be sold to M. Gratz. It would evi-
dence no more than that the parties were willing
that the sale so made, should be considered the stand-
ard of the value ; and that M. Gratz should, upon
his original purchase, be charged with the same
price for which he sold. Upon this view of the case,
the resulting trust would be extinguished by the con-
sent tf the parties, and no want of good faith could
he fairly imputed to either.

But it is said that there is no proof that any such
purchase was ever made by Howard ; and the trust
being once established, the burthen of proof is shifted
upon the other party, to show its extinguishment ;
and if this be not shown, the trust travels along with
the property and its proceeds down to the present
time.

It is certainly true, that length of time is no bar to in what

. ° the lapee of

a trust clearly established ; and in a case where fraud **■■• *»" *r
is imputed and proved, length of time ought not,
Vol. VI. «3

Orats.

498 CASES IN THE SUPREME COURT

1821. upon principles of eternal justice, to be admitted to
S^/^/ wpfel relief. On the contrary* it would seem that
the length of time, during which the fraud has been
successfully concealed and practised, is rather an ag*
gravation of the offence, and calls more loudly upon
a Court of equity to grant ample and decisive relief.
But length of time necessarily obscures all human
evidence ; and as it thus removes from the parties all
the immediate means to verify the nature of the ori*
ginal transactions, it operates by way of presumption,
in favour of innocence, and against imputation of
fraud. It would be unreasonable, after a great
length of time, to require exact proof of all the mi-
nute circumstances of any transaction, or to expect a
satisfactory explanation of every difficulty, real or
apparent, with which it may be incumbered. The
most that can fairly be expected in such cases, if the
parties are living, from the frailty of memory, and
human infirmity, is, that the material facts can be
given with certainty to a common intent ; and, if the
parties are dead, and the cases rest in confidence, and
in parol agreements, the most that we can hope is to
arrive at probable conjectures, and to substitute ge-
neral presumptions of law, for exact knowledge.
Fraud, or breach of trust, ought not lightly to be im-
puted to the living ; for, the legal presumption is
the other way ; and as to the dead, who. are not
here to answer for themselves, it would be the
height of injustice and cruelty to disturb their ashes,
and violate the sanctity of the grave, unless the evi-
dence of fraud be clear, beyond a reasonable doubt.
Now, disguise the present case as much as we may,

OF THE UNITED STATES. £09

md soften the harshness of the imputation as mud* ie*i.
as we please, k cannot escape our attention, that if

jPr&Yqit

the plaintiff's case he made oat, there was a medita- ▼.
ted breach of trust, and a deliberate fraud practised
by M. Gratz, or Bernard Gratz, with the assent of
JVL Gratz, upon Col* Croghan. If the sale to How<»
ard was merely fictitious, it was an imposition upon
Col. Croghan, designed to injure his interest, and
violate his confidence. If the fraipd were clearly
made out, there would certainly be an .end to all in-
quiry as to the motives whiob could lead to so digr
(honourable a deed between such intimate friend?.
But the fraud is not clearly made out ; it is inferred
from circumstances in themselves equivocal, and
4mm the absence of {proofs, which it is supposed
ONist exist, if the sale were real, and could now be
produced.

In the view which the Court is disposed to take
of this case, it must consider that Howard was a
real, and not a fictitious person- It is then asked,
-why are not the facts proved who Howard was,
where iie lived, and the execution of the deed to
him. It is to be recollected that this proof is called
for, about forty years after the original transaction ;
when all the parties, and all who were intimately ac-
quainted with the facts, are dead. It is called for,
too, from persons, some of whom were unborn, and
some very young at the period to which they refer.
They cannot be supposed to know, and they abso-
lutely deny, all knowledge of the facts. What rea-
son is there to suppose that Col. Croghan did not
.know who Howard was? He had a deep interest |n

<?rat*

500 CASES IN THE SUPREME COURT

18«. the value of the property, and could not be presumed

v*PKv*<w to be indifferent to such inquiries, as every consider-

v. ate man would be likely to make, in such a case.

°Tatz# And after this lapse of time, it is fair to presume,
that he did know the purchaser, and was satisfied
with the purchase. But it is said that no deed is
produced. Now, it does not necessarily follow, that
if a sale was made to Howard, that the contract was
consummated by an actual conveyance of the land.
If M. Gratz was the bona fide owner of the land, he
might sell it to Howard by an executory contract,
and take a bond or other security for the purchase
money, and from a failure to comply with the con-
tract, M. Gratz might afterwards have refused to
give a deed to Howard. And in this case, if in the
intermediate time the settlement was made with
Col. Croghan, the credit must have been allowed in
that account as it stands, and' having been once al-
lowed, M. Gratz could not, on a recision of the sale,
have been entitled to countermand that credit. He
would have been bound to take the land at the sum
which he had elected to allow for it, and for
which he had sold it. ' On the other hand, supposing
a deed actually to have passed to Howard, the latter
may have become dissatisfied with his bargain, or
have failed to pay the consideration money, and have
yielded it back to Gratz, and dissolved the purchase.
But this circumstance could not have varied the situ-
ation of Gratz in respect to the settlement with Col,
Croghan. All that was important, or useful, or ne-
cessary, as between them, upon the supposition that
-the trust was merely a resulting trust, until the price

OP THE UNITED STATES. 501

was fixed, was, that the price should have been satis- itti.
factoril j ascertained and agreed to between them. In ^^^t*
this view of the transaction, there could be no ▼.
ground to impute fraud to M. Gratz ; nor could his
conduct involve a violation of trust. .. In the absence
of all contrary evidence, is it not just, is it not reason-
able, to presume such to have been the reality of the
case ? That there is no evidence to the contrary,
may be safely affirmed.

In addition to this, it may be asked, whether M.
Gratz had any adequate motive for practising a de-
ception in this case. Men do not usually act under
circumstances such as are imputed to M. Gratz, un-
less from some strong inducement of interest. It
cannot be presumed that any man of fair character,
such as M. Gratz is proved to have been, could per-
petrate a fraud or deception without some motive
that should overbalance all the ordinary influence of
prudence and honour. If there be any thing beyond
all doubt established in this case, it is, that the value
of the land, as fixed in the account of 1775, was its
full value. It is proved by public sales of adjoining
tracts, at the very period when Howard is asserted to
have purchased the land ; and so far from there be-
ing any chance of an immediate rise in value, the
state of the country, on the very eve of the revolu-
tionary war, forbade the indulgence of every such
hope, and must have dissolved every dream of spe- v
culation. As far, then, as we can investigate mo-
tives, by referring to the general principles of human
action, there does not seem to have been any motive
for disguise or concealment on the part of Michael

CASES IN THE SUPREME COURT

H*i. £ratz towards Col. Croghan* The reasonable con*
elusion, therefore, would certainly be, that no such
disguise or concealment was practised.

There is one circumstance also which has been
thought to have thrown some cloud over tins part of
thecase,tbat uponthe opinion already indicated, would
admit of a favourable exposition, it is this : In the
possession of M. Grate, a counterpart of the account
of 1775 is found, in which the word Howard is cross-
ed out with a pen, but so that it is perfectly legible,
and the name of Michael Orate, is, in his own hand-
writing, written 'over it. The writing seems to be of
•great antiquity, and supposing that there was a real
sale to Howard, which was afterwards abandoned, k
is not unnatural that M. Gratz should, after the
event, have communicated tbe fact to Col. Croghan,
and with his consent, altered the account, so as to
conform to it. Or, the interlineation might have
been made in the account, after the failure of the
contract with Howard, in order to show against
which of the firm of B. & M. Gratz this sum ought
to be charged, in the adjustment of their partnership
concerns. It adds some foroe to these considerations,
that Col. Croghan continued, during the residue of
his life, to entertain the same friendship and confi-
dence in M. Gratz ; and this, at least, demonstrated
his belief that the Tenederah lands had not been un-
justly sacrificed by him.

If we look to the subsequent conduct of M. Gratz,
in relation to the Tenederah lands, his great ex-
penses in making improvements on it, after the year
1786, and his diligent attention to it, it leads to the

OP THE UNITED STATES. $QS

conclusion that he always considered himself as the iaai.
real bona fide owner. His possession of it must have
been known to the parents of the plaintiff, whose
mother was the heir of Col. Croghan ; and it is pro-
ved, that his father had the most unreserved and fre-
quent access to the papers of Col. Croghan ; and
that he actually resided several years in Philadel-
phia, with the express view of examining the estate,
and finally abandoned all hopes of deriving any be-
nefit from the fragments that were left of it The
very account now produced by the plaintiff, by
which this trust is brought to light, was delivered
over to him by the representatives of M. Grate,
among the other papers of Col. Croghan ; and yet,
if there had been any thing false or foul in the trans-
action, it seems almost incredible that M. Gratz, into
whose possession it came as early as 1782, should
have suffered it to remain as a monument of his own
indiscretion, and an evidence of his want of good
faith.

If, on the other hand, the trust is to be considered
as a trust to sell, and apply the proceeds to the pay-
ment of the debt due to B. & M. Gratz, most of the
considerations already stated will apply with equal
force. If the sale was real, and Howard did not
comply with the terms of sale, Col. Croghan having
knowledge of the fact, might have been well satisfied
to let M. Gratz hold the land, at the price thus fixed
by the sale. To him, it must have been wholly im-
material who was the purchaser, if the full value
was obtained ; and that it was obtained, is Col. Cro-
ghan's own judgment, seems undeniable. The only

504 CASES IN THE SUPREME COURT

182K question is, whether such knowlege can be inferred :
and after such a length of time, under all the circum-
stances of this case, we are clearly of opinion that it
ought to be inferred. Col. Croghan had it in his
power to make inquiries on the subject ; if he did,
and was satisfied, his acquiescence was conclusive j
if he did not, he considered that the sale, as be-
tween himself and Gratz, was consummated when
the price was fixed, and was willing that the trust
should be deemed extinguished forever. If, after
Sn2»f ?r££ the lapse of forty years, and the death of all the ori-
S^b^pre- ginal parties, we were to come to a different conclu-

■umption of the , . .

extinguishment sion, it would be pressing doubtful circumstances

oft trust, pay* . .

meatofadebt, with uncommon rigour against unblemished charac-
ters ; where the confidence reposed was so intimate,
that the whole evidence could not be presumed to be
before us. We should indulge in opinions which
might be erroneous, and might, in an attempt to re-
deem the plaintiff from a conjectural fraud, inflict
upon others the most gross injustice. We think,
therefore, that the true and safe course is to abide
by the rule of law, which, after a lapse of rime, will
presume payment of a debt, surrender of a deed,
and extinguishment of a trust, where circumstances
may reasonably justify it. The doctrine in Hillary
y. Waller, (12 Vez. 261. 266.) on this subject, meets
our entire approbation. It is there said, that general
presumptions are raised by the law, upon subjects
of which there is no record or written instrument,
not because there are the means of belief or disbe-
lief, but because mankind, judging of matters of
antiquity from the infirmity, and necessity of their

OF THE UNITED STATES. 605

situation must, for the preservation of their property 1821.
and rights, have recourse to some general principle,
to take the place of individual and specific belief,
which can hold only as to matters within our own
time, upon which a conclusion can be formed from
particular and individual knowledge. In our judg-
ment, the trust in the Tenederah lapds, such as it
was, must be now presumed to have been extin-
guished by the parties, in the life-time of Col. Cro-
ghan. There is no ground, then, for relieving the
plaintiff, as to this part of his claim*

The remaining point in this case respects theM'U- The mok«£*
vainebond and judgment. On the 90th of March, »«*•
1769, Col. Croghan gave his bond to Wm. M'll-
vaine, for the sum of £400, which debt, by the will
of M'Hvaine, became, on his death, vested in his
widow, who afterwards intermarried with John
Clark. A judgment was obtained upon this bond
against Col. Croghan, in the name of Wm. Hum-
phreys, executor of M'Hvaine, in the Court of Com-
mon Pleas, in Westmoreland County, in Pennsylva-
nia, at the October term, 1774, upon which a j£. fa.
issued, returnable to the April term of the same
Court, in 1775. On the 8th of March preceding
the return day of the Ji.fa. Bernard Gratz purchased
this judgment from Clark, and received an assign-
ment of it, for which he gave his own bond for £300
and interest About this period, Col. Croghan ap-
pears to have been considerably embarrassed in his
pecuniary affairs, and several suits were depending
against him. Bernard Gratz having failed to pay
his bond, was sued by Clark, and in 1794, a judg-

Vol. VI. 64

506 CASES IN THE SUPREME COURT

1821. meat was recovered against him for £89 6s. lOd. the
balance then due upon the bond, which sum was af-
terwards paid by M. Gratz. The judgment of Hum-,
phreys against Col. Croghan, was kept alive from
time to time, until 1786, and in that year, on the
death of Humphreys, Joseph Bloom field was ap-
pointed administrator de bonis non, with the will an*
nexed, of Humphreys, and revived the judgment ;
and it was kept in full force until it was finally le-
vied on certain lands of Col. Croghan, as hereafter
stated. Some time in the year 1800, Bernard Gratz
assigned this judgment to his nephew Simon Gratz,
one of the defendants, partly in consideration of na-
tural affection, and partly in consideration of the
above sum of £89 6s. 10d. paid towards the dis-
charge of the bond of Bernard Gratz, by his (Si-
mon's) father, Michael Gratz. Simon Gratz having
thus become the beneficial owner of the judgment,
proceeded to issue executions on the same, and at
different times between September, 1801, and No-
vember, 1804, caused the same executions to be le-
vied on sundry tracts of land of Col. Croghan, in
Westmoreland and Huntington counties, of five of
which he, being the highest bidder at the sale, be-
came the purchaser. The tracts so sold, contained
upwards of 2,000 acres, and were sold for little more
than 1,000 dollars. The title to some part of the
land so sold, appears to be yet in controversy.

Shortly after the assignment of the M'llvaine
judgment to Bernard Gratz, on the 16th of May,
1775, Col. Croghan, (probably having knowledge
of the assignment, though the fact does not appear,)

OP THE UNITED STATES. 607

by two deeds of that date, conveyed to B. Gratz, mi.
for a valuable consideration expressed therein, about
45,000 acres of land* A declaration of trust was
executed by Bernard Gratz, on the 2d of June, 1775,
by which he acknowledged, that these conveyances
were in trust to enable Bernard Gratz to sell the
same, and with the proceeds to discharge certain
enumerated debts of Col. Croghan, and among them,
the debt due on the M'llvaine bond, and to account
for the residue with Col. Croghan.

The subject of the M'llvaine judgment was very
minutely considered in the Court below, by the
learned judge who decided the cause, and the prin-
cipal grounds on which the plaintiff relied for a de-
cree were so fully answered there, that a complete
review of them does not seem to be necessary in this
Court0 It is observable, that the bill charges that

a The following is that part of the opinion of Mr. Justice
Washington in the Court below, here alluded to :

" Upon these facts, it is contended by the complainant's
counsel, that B. Gratz ought to be considered by this Court, as
having purchased the above judgment with the trust funds, and,
consequently, for the benefit of 6. Croghan ; and that even if
it was purchased with his own money, still, being a trustee for
Croghan, the purchase should be considered as having been
made -for his benefit, entitling B. Gratz to claim no more than
the sum which he actually paid, and to retain the same out of
G. Croghan'8 estate, the whole of which is charged with the
payment of bis debts. That Simon Gratz, being an assignee of
this judgment, with notice of the trust, and without a valuable
consideration paid for the same, can stand in no better situation
than the assignor did, and ought, therefore, to be treated as a
trustee for the estate of G. Croghan, of the lands which be

508 CASES IN THE SUPREME COURT

mu the assignment of this judgment was secretly pro-
cured by Bernard or Michael Gratz, or both of them,
after the death of Col. Croghan, and that nothing

purchased under the executions issued on that judgment, and
he entitled to claim merely the sum actually paid by B. Gratz,
with interest.

It is to be observed, in the first place, that there is not the
slightest evidence on which to ground a presumption, that this
judgment was purchased with trust funds* B. Gratz gave his
own bond for the 300 pounds, at which time he and M. Gratz
were considerably the creditors of G. Croghan ; and it further
appears by the exhibits in the cause, that the accounts between
these parties, were regularly settled from time to time, leaving
at each settlement a balance against G. Croghan.

Neither did any funds arise from the trust property, no part
of the same having at any time been sold by the trustee.

As to the argument predicated upon the admission, that the
purchase was made upon the credit and with the funds of B.
Gratz, I hold it to be altogether untenable. B. Gratz became
the purchaser some months before the date of the conveyances
to him, of the 45,000 acres of land, and I am yet to learn upon
what principle of equity it is, that a creditor, who after he is
so, becomes a trustee for his debtor, does by that act impair
or affect rights which he had antecedently acquired against
him. I admit the soundness of the doctrine laid down by the
complainant's counsel, that if a trustee, executor, or agent, buy
in debts due by his cestui que trust, testator, or principal, for
less than their nominal amount, the benefit gained thereby be-
longs not to him, but to the person for whom he acted. A
Court of equity will not permit a person, acting as a trustee,
to create in himself an interest opposite to that of his cestui que
trust or principal. But this doctrine is inapplicable to the case
of a fair bona fide creditor, who became so, prior to the as-
sumption of his fiduciary character. In such a case he is en*
titled to claim the full amount of what was due from his cestui
que trust, &c. and the latter has no right to inquire how much

OF THE UNITED STATES. 50&

was due upon the judgment; or if any thing was law.

due, it was paid upon the assignment out of moneys v£v^/

belonging to the estate of Col. Croghan. The bill v.

the former paid for it ; so, too, the trustee, &c. may pursue
ell legal remedies for enforcing payment of the debt, which
would have been open to him if he had not become a trustee.

It is said, however, that the declaration of trust of the 2d of
July, 1775, contains a promise to discharge this very debt out
of the trust property, as soon as the same could be disposed of.
But it was not disposed of, and there are the strongest reasons
for believing that it was altogether unsaleable.

Independent of the doubts which clouded the title, it would
seem sufficient to observe, that B. Gratz had the strongest
temptations to sell, and even to sacrifice this property, if it had
been possible to dispose of it upon any terms.

It is further contended, that the power of attorney given by
O. Croghan, to B. ii M. Gratz, dated the 10th of July, 1772,
constituted them trustees of all his lands, with onlimited power
to sell them, and to pay off his debts. It is in this part of the
case, that I experience the difficulty of deciding satisfactorily to
myself, in consequence of the antiquity of these transactions,
and the death of all those who might have explained them.
What became of this power of attorney, and why it was never
acted upon, are questions which no evidence in the cause ena-
bles me to resolve. There are, however, strong reasons for
presuming, that the powers vested in these agents, were found
unproductive of any useful results ; and, that the instrument
which bestowed them was afterwards delivered back to G.
Croghan, or remaining with the Gratzs, was considered by all
the parties as a blank paper. This conjecture is strongly coun-
tenanced by the fact, that this paper, as well as the deeds of
May, 1775, was found amongst the papers of G. Croghan, after
his death. These very deeds furnish themselves the most per-
suasive evidence in support of this presumption. For, if the
general power to sell the whole of G. Croghan's lands, continued
in force up to the year 1775, there could have been no neces-
sity for giving to one of those agents, an authority to sell a part

Grata>

510 CAS£S ,N THE SUPREME COUfet

1821. asserts no other ground for relief on this subject.
The proof in the cause completely establishes tfck
material charges in the bill to be false. The assign-

of them. The fact, that do part of those land* was sold by the
agents, or by Croghan himself, without a complaint having been
uttered by the latter, that appears, is nearly conclusive to
prove that they were unsaleable.

Another point insisted upon by the complainant's counsel
under this head is, that G. Croghan was not in reality a debtor
to M'llvaine, inasmuch as there was found amongst Croghan 'a
papers, a bond of M'llvaine to him, dated the 5th of March,
1769, with condition that M'llvaine should by a certain day re-
convey to Croghan, certain lands lying in Virginia, which Cro-
ghan had conveyed to M'llvaine, in trust for the payment of a
particular debt, or in case it should not be in his power to make
stich conveyance, then to pay to Croghan the sum of 400/. It
was contended, that this bond being found uncancelled amongst
the papers of the obligee, proves that neither of the conditions
had been performed.

The short, but conclusive answer to this argument is, that the
condition of this bond was to be performed in the year 1770,
and that if it was broken by the failure of M'llvaine to make
the re-conveyance, M'llvaine became in that year a debtor to 6.
Croghan, in the sum of 400/. the equivalent ; yet Croghan suf-
fered judgment to pass against him, and execution to issue in
the year 1775, after which he lived about seven years, without
having brought a suit on the bond, or asserted, in any manner
whatever, a right to the money. If, after a lapse of so many
years, and under these strong circumstances, the Court is not
bound to presume against the existence of this debt, 1 know of
po instance in which such a presumption ought to be made.
If in truth the debt was really due, the charge of neglect is
fairly imputable to Croghan, but not to his executors. Upon
the whole I am of opinion, upon this point, that the complain*
ant is entitled to no relief." 1 Peter$,jun.Rep. 372.

OP THE UNITED STATES. 511

ment was made to Bernard Gratz, in the lifetime of 1821.
Col. Croghan ; the judgment never was paid or sa-
tisfied by Col. Croghan, or out of his estate ; and no
fraud is pretended in the bill to have taken place in
the levy of the judgment on Col. Croghan's lands,
independently of the legal inference to be deduced
from the facts charged in the bill. If Bernard Gratz
was not, at the time, in the situation of a trustee of
Col. Croghan, there is no pretence to say, that be
might not rightfully and lawfully purchase the judg-
ment. And there are very strong reasons to believe,
that it was purchased with the knowledge, and for
the relief of Col. Croghan. It was somewhat in-
sisted upon in the Court below, that by a power of
attorney of the 10th of July, 1772, CoL Croghan
constituted Bernard and Michael Gratz trustees of
all his lands, with unlimited power to sell them and
pay off his debts. But this ground has not been in-
sisted upon here, and, indeed, for the best reasons.
There is the strongest presumptive evidence, that
this power was never acted upon, or was revoked,
and held a nullity before the time of the assignment
in question.

The ground that has been principally relied upon
here, is, that Bernard Gratz having taken the two
trust deeds in 1775, already referred to, in trust
for the payment of this very debt out of the pro-
ceeds of the sale of the lands conveyed by those
deeds, could not proceed to satisfy the judgment out
of any other lands, without notice to Col. Croghan,
or his representatives. But there is not the least
evidence in the cause to show, that any of the lands

512 CASES IK THE SUPREME COURT

1821. conveyed by either of these deeds ever turned out
productive. And there are the strongest presump-
tions in the case, and it seems, indeed, to be on all
sides conceded, that either the title to these lands
wholly failed, or became altogether unsaleable.
There is no reason to suppose that these facts lay
more peculiarly in the knowledge of one party than
the other ; and if the trust became utterly frustrated
and inert, there could not be any necessity of giving
a formal notice, that Bernard Gratz must look to
other property, and particularly to the property in
Westmoreland county, upon which alone, it is un-
derstood by the laws of Pennsylvania, the lien of
the judgment attached.

There is no proof that any assets ever came to the
hands of Bernard Gratz or Michael Gratz, out of
which this judgment was, or could be satisfied. Ber-
nard Gratz was alone interested in it ; and it was
kept alive from time to time, until the levies in ques-
tion were made. It will be recollected also, that even
if Michael Gratz were disposed to connive, after the
death of his brother, in the levies of his son Simon,,
William Powell, who was another executor, had dq
such motive. And, it is not shown that, by any law
or usage in Pennsylvania, any notice is required to
be given to any other persons than the personal re-
presentatives of the deceased, of the execution of any
such judgment on lands, so that laches could be
fairly imputed to the executors for neglect to give
notice to the heirs of Col. Croghan of the sale. The
very length of time during which this judgment re-
mained unsatisfied, is evidence of the desperate state

OP THE UNITED STATES. 513

of Col. Croghan's affairs ; and the record abounds with mi.
corroborations of the great embarrassments attend- vtTNrw
ing all his concerns, and of apparent insolvency at ▼•
the time of his decease. No evidence has been sub-
mitted to us to establish that the levies on the lands,
under the judgment, were fraudulently conducted by
the sheriff, or that they did not sell for the full va-
lue of the title, such as it was, which Col. Croghan
had in them. It appears that the title, as to some
part of them, is still in controversy. And Simon
Gratz, the judgment creditor, had as much right, if
the sale was bona fide conducted, to become the pur-
chaser, if he was the highest bidder, as any other per-
son.

Upon the whole, the majority of the Court entirely Decree, u to
concurs, in the opinion of the Circuit Court upon {j£jjjj*2j"
this part of the case. But, as to the decree respect-
ing the proceeds of the Tenederah lands, we are all
of opinion that it ought to be reversed.

If the Court had felt any doubts as to the merits,
it would have been proper to have given serious con-
sideration to the very able argument made at the
bar, respecting the defect of proper parties to the
bill. But, as upon the merits, the Court is decided-
ly against the plaintiff, it seemed useless to send
back the cause upon this objection, if it should be
found tenable, when, after all, the case furnished no
substantial ground for relief in equity/ •

Decree. These causes, being cross appeals,

a Vide 1 Peters, jun. Rep. 364. S. C.
Vol. VI. 65

5U CASES IN THE SUPREME COURT

1821. came on to be heard at the same time, and were ar-
gued by counsel. On consideration whereof, it is
ordered and decreed, that the decree of the Cir-
cuit Court for the District of Pennsylvania in the
premises, be, and the same is hereby reversed. And
this Court proceeding to pass such decree as the said
Circuit Court should have passed, it is farther or-
dered and decreed, that the complainant's bill, as
to all the matters contained therein, be, and the same
is hereby dismissed ; and that a mandate issue to the
said Circuit Court, to dismiss the same accordingly,
without costs.

(Local Law.)

Bowie v. Henderson el al

The third section of the act of Congress, of March 30th, 1803, for the
relief of insolvent debtors in the District of Colombia, does not
create any express or implied exception to the operation of the
statute of limitations, by making the insolvent a trustee for his
creditors, in respect to his future property, or by making any de-
mand, included in the schedule of his debts, a debt of record.

The including of a demand in the schedule of the insolvent's debts, is
sufficient evidence to sustain an issue on a replication of a new pro-
mise to the jflea of the statute of limitations, if the period of limita-
tion has not elapsed after the date of the schedule.

Appeal from the Circuit Court of the District of
Columbia.

OP THE UNITED STATES. 516

This suit was instituted by the appellant against idsi.
the respondents, on the Chancery side of the Circuit
Court of the District of Columbia, for the county of
Alexandria, under the local law giving a process in
Chancery in the nature of a foreign attachment

The bill charged a debt due on bills of exchange,
from the defendant, Henderson, to the complainant ;
that the delftor was an absentee ; that he had funds
in the hands of the defendant Auld ; and prayed a
condemnation of those funds, to answer the com-
plainant's demand. The defendant, Henderson,
pleaded the statute of limitations, non assumpsit in*
fra quinque annos. To this plea the complainant
filed the following replication : And the said W.
Bowie saith, that he ought not to be precluded from
having and maintaining his bill aforesaid, by any
thing alleged by the defendant, Henderson, in his
plea aforesaid ; because he saith, that the said A.
Henderson, on the 8th of May, 1 806, in the county
of Alexandria, before N. F., one of the judges of the
District of Columbia, did take the benefit of the act
for the relief of insolvent debtors within the District
of Columbia, and did then and there give a schedule
of his estate, and a list of his creditors ; and in the
said list of his creditors so given in, he, the said Hen-
derson, did state, that the said complainant was a
creditor of his to the amount of $4,586 39 cents —
which said list of creditors so given in, he, the said
Henderson, did state, was entered of record in the
clerk's office of the Court of the countv of Alexan-
dria, as by reference to the records of the said Court
will fully and at large appear, and which said debt

516 CASES IN THE SUPREME COURT

isti. so given in, is the debt for which the complainant
•has instituted his suit aforesaid. And the said com-
plainant saith, that the moneys and effects which the
said complainant seeks, in his bill aforesaid) to subject
to the payment of his debt aforesaid, were obtained
and acquired by the said defendant, Henderson, long
subsequent to his taking the oath of insolvency afore-
said. And the said complainant saith, that as soon
as he, the said complainant, obtained any knowledge
of the said defendant, Henderson, having obtained
the funds aforesaid, and within the period of six
months after he obtained a knowledge thereof, he,
the said complainant, did institute his aforesaid bill
in Chancery, to subject the funds to the payment of
his said debt, all which, &c. The defendant de-
murred to this; replication, and the Court below, on
hearing, adjudged the demurrer good.

The question in this case turned upon the con-
struction of the third section of the act of Congress,
for the relief of insolvent debtors within the District
of Columbia, passed March 3d, 1803, which is in
these words :

" And be it further enacted. That upon the peti-
tioning debtor's executing a deed or deeds to the said
trustee, conveying all his property, real, personal,
and mixed, and all his claims, rights, and credits,
agreeably to the oath or affirmation of the said debtor,
and on delivering all his said property which he
shall have in his possession, together with his books,
papers, and evidences of debts of every kind, to the
said trustee, and the said trustee's certifying the
same to the said judge in writing, it shall be lawful

OP THE UNITED STATES. ,

for the said judge to make an order to the marshal,
jailor, or keeper of the prison, in which said debtor
is then confined, commanding that the said debtor
shall be thenceforth discharged from his imprison-
ment ; and he shall be immediately discharged, and
the said order shall be a sufficient warrant therefor :
Provided, That no person who has been guilty of a
breach of the laws, and who has been imprisoned for
or on account of the same, shall be discharged from
imprisonment: And provided likeivise, That any
property which the debtor may afterwards acquire,
(except the necessary wearing apparel and bedding
for his family, and his tools, if a mechanic or manu-
facturer,) shall be liable to the payment of his debts,
any thing herein to the contrary notwithstanding."

sir

1831*

This cause was argued by Mr. Swann and Mr. March im.
Jones, for the appellant, and by Mr. Tayfor, for the
respondents. The former insisted, that the above sec-
tion of the insolvent act created an exception to the
general operation of the statute of limitations in fa-
vour of those demands on which the insolvent's person
was discharged under that section. They argued
that the insolvent, after his discharge, was to be con-
sidered, in respect to his future property, as a trus-
tee for his creditors, and that the statute of limita-
tions does not run against a trust : and, also, that
this debt was to be considered as excepted out of
the statute of limitations, because it was made a
debt of record by being included in the list of cre-
ditors under the insolvent act.

£lg CAPES IN THE SUPREME COURT

1821, Mr. Chief Justice Marshall delivered the opi-

nion of the Court, and after stating the case, pro-
ceeded as follows :

It is perfectly clear that no such exception is con-
tained in the statute of limitations, or in the act of
Congress concerning insolvent debtors. If it is to be
created at all, it must be by implication. It is con-
tended in the first place, that the insolvent debtor,
after his discharge, is to be considered in respect to
his future property, as a trustee for his creditors ;
and the statute of limitation does not run against a
trust If he is a trustee for his creditors, is he
a trustee for those creditors only who were such
at the time he obtained the benefit of the act?
or, is he a trustee for those who afterwards be-
come his creditors ? It will not be pretended that
he is exclusively a trustee for the former ; and if he
be a trustee for the benefit of all his creditors, then
this suit should have been brought for the benefit of
all, and not for the benefit of a single creditor. The
proviso of the section respecting the liability of the
future property of the insolvent, has been supposed
to aid the argument that he is a trustee : But we are
all of a different opinion ; the previous part of the
section having exempted his person from imprison-
ment, the object of the proviso was to make all his
future effects liable, and to retain all the remedies
against it, in the same manner as if his person had
not been discharged. The act, therefore, did not in-
tend to create any new liability, or any new trust.

It is farther insisted, that this is to be considered
as an exception out of the statute of limitations, be-

OF THE UNITED STATES. $\p

cause it is a debt of record. But a debt of record, 1&21.
in the sense of the common law, is a debt or contract ,S^C^

Spring

created of record ; such as a statute staple, or sta- .▼.
tute merchant, and not one whose previous existence iina ins.
is only admitted of record. The effect of recording CQmV***-
this debt was merely an admission of its existence,
and not a change of its nature. It would have been
sufficient evidence, if five years had not elapsed after
recording, to have sustained an issue on a replication
of a new promise to the plea of the statute of limita-
tions. But more than five years having elapsed, it
could have no application in this case. It is the
opinion of the Court, that the demurrer to the repli-
cation is sustained, and that judgment ought to be
given for the defendant.

Decree affirmed.

(Practice.)

Spring et ah v. The South Carolina Insu-
rance Company.

In an equity cause, the ret in litigation may be sold bf order of the
Circuit Court, and the proceeds invested in stocks, notwithstanding
the pendency of an appeal to this Court

Mr. Hunt j for the respondents, moved to docket Monk l&h.
and dismiss the appeal in this case, which was a suit
in Chancery, commenced in the Circuit Court of
South Carolina, no transcript of the record having

§20 CASES IN THE SUPREME COURT

1821, been lodged by the appellants with the clerk of this

«V^CW Court, within the first six days of the term, accord-
United states ' J '

y. mg to the rule.

Six Packages

of Goods.

Mr. Wheaton, for the appellants, opposed the mo-
tion, upon the ground that no certificate was produ-
ced from the clerk of the Court below, stating that
an appeal had been taken, according to the rule.

The Court denied the motion, but stated that as
the object of the respondents was to have the pro-
ceeds of the property in litigation, which had been
sold by order of the Court below, invested in stocks,
such investment might be made by the Court below,
notwithstanding the pendency of the appeal in this
Court.

Motion denied/

a Vide new rule of Court of the present term. Ante, Rule
XXXII.

- (Instance Court.)

The United States v. Six Packages op Goods,
Tolety Claimant.

Under the 67th section of the Collection Act of the 2d of March, 1799,
c. 138., where goods were entered by an agent of the owner on his
behalf, and the entry included only a part of the goods which the

OF THE UNITED STATES. 521

packages contained, and the owner subsequently made a further, or 1821.
post entry of the residue of the goods ; and the packages being \^-v^w/
opened several days afterwards and examined by the collector in the United States
presence of two merchants, and their contents found to agree with v*

the two entries taken together, but to differ' materially from the 0f Goods,
first entry ; held* that the collector was not precluded from making
a seizure of the goods after the second entry, for a variance between
the contents of the packages and the first entry, and that such sei-
zure must be followed by confiscation, unless it should appear that
such difference proceeded from accident and mistake, and not from
an intention to defraud the revenue.

Appeal from the Circuit Court for the Southern
District of New-York.

This was a libel of information filed in the Court
below against certain goods imported from London
in the ship Isabella, at the port of New-York, as for-
feited under, the 67th section of the collection act of
the 2d of March, 1799, c. 128.

The cause was argued by the Attorney- General, March \m.
and Mr. Pinkney, for the United States ; and by Mr.
J). B. Ogden and Mr. Wheaton, for the claimant

Mr. Justice Livingston delivered the opinion of *«** ***•
the Court.

This is a libel under the 67th section of the collec-
tion law, passed the 2d of March, 1799.

This section provides, that it shall be lawful for the
collector, naval officer, or other officers of the cus-
toms, after entry made of any goods, wares, or mer-
chandize, on suspicion of fraud, to open and exa-
mine, in 'the presence of two or more reputable
merchants, any package or packages thereof, and if,
upon examination, they shall be found to agree with

Vol. VI. 6G

United States
y.

CASES 1NJJTHE SUPREME COURT

1821. the entries, the officer making such seizure and exa-
mination, shall cause the same to be repacked, and
delivered to the owner or claimant forthwith ; and
dF GocST* tbe expense of such examination shall be paid by the
said collector or other officer, and allowed in the set-
tlement of their accounts ; but if any of the packages
so examined, shall be found to differ in their contents
from the entry, then the goods, wares or merchan-
dize contained in such package or packages, shall be
forfeited : Provided, that the said forfeiture shall not
be incurred, if it shall be made appear to the satisfac-
tion of the collector and naval officer of the district
where the same shall happen, if there be a naval of-
ficer, and if there be no naval officer, to the satisfac-
tion of the Collector or of the Court in which a pro-
secution for the forfeiture shall be had, that such dif-
ference arose from accident or mistake, and not from
an intention to defraud the revenue.

These goods being claimed by Hugh K. Toler, of
the City of New- York, merchant, were condemned
by the District Court of the United States, for the
Southern District of New- York, which sentence be-
ing reversed by the Circuit Court for that district, an
appeal from the last sentence has been taken to this
Court.

Before we examine the facts of the case, or whe-
ther they establish a fraud, without which the prose-
cution under this section cannot be sustained, it will
be necessary to dispose of a question of law, which
has "been made by the counsel for the claimant.

It is conceded on all hands, that on the 3d of No-
vember, 1810, the six packages which are libelled

OF THE UNITED STATES. $23

were entered at the custom-house by Thomas Ash, mi.
on behalf of the claimant, and that the entry covered ^yTY^0!

9 J United Statei

only a part of the goods which the packages con- . v-
tained. That two days after, Toler himself com- *f Goods,
pleted the entry of the residue of the goods which
were in these packages, and which had not been
previously entered by Ash. Several days after, the
packages were opened and examined by the collec-
tor; in presence of two merchants, and their contents
were found not to differ, but to agree with the two
entries taken together ; but to differ very materially
from the first entry made by Ash ; upon which the
collector made a seizure of them. On these facts,
about which there is no dispute, it is denied that the
collector had any right to seize, inasmuch as, when
the inspection took place, there was no difference
between the goods found in the packages, and those
mentioned in the invoices. It is said, that the col-
lector, if he suspected a fraud, ought to have made a
seizure before the second entry, in which case the
difference which would have existed between the
goods on which a duty was secured, and those in the
packages, would have justified such an act, but that
by waiting until a second entry was made, the fraud,
if any committed, was purged. In support of this
position, it is said, that the collection law provides for
a post entry of this kind, and that the very oath
which is taken when an entry is made, imposes op
the party who makes it, the duty, in case he shall af-
terwards discover any other goods in a package than
those first entered by him, of immediately informing
the collector, and. making a further entry thereof.

524 CASES IN THE SUPREME CODRT

1821. . This provision, and the form of the oath, suppose
~?^Yy no more than that a deficient or defective entry may

United States . . ,

v. be made innocently, ^nd under a mistake, without
8^fPG^odr8 any certain knowledge at the time, of the contents
of the packages entered- For, if the party making
an entry, knows at the time of other goods, such
other goods cannot be entered afterwards, and the oath
usual on such occasions cannot be taken, without ad-
mitting that a perjury had been committed at the
time of the first entry- The Court is, therefore, of
opinion, that, although the seizure was not made un-
til after the second entry, the collector had a right to
seize for any variance between the contents of the
packages, and the first entry, and that such seizure
will be valid, and must be followed by sentence of
condemnation, unless it shall turn out that such dif-
ference proceeded from accident or mistake, and not
from an intention to defraud the revenue. Whether
the case of the claimant be entitled to this, favourable
interpretation, the Court will now proceed to inquire*
A great deal of testimony, which was not pro-
duced in the Circuit Court, and which. might easily
have been, (as all the witnesses resided in the
City of New- York,) has been taken since the ap-
peal ; and it is on this testimony, as well as on that
which was there taken, that the sentence of that
Court must now be reviewed.

It is in proof, and indeed admitted by the claimant,
that a very imperfect entry of the goods contained id
these packages was made on Saturday, the third
day of November, 1810, by Thomas Ash, who had
been employed by Toler to enter the same ; and that

OF THE UNITED STATES. 625

the residence of the goods therein contained was not mi.
entered by the claimant, until the fifth day of the ij^CJsJSL
same month. To escape from the consequences of . v.
the first entries not being complete, and to repel the 'ofGood***
imputation of its originating in fraud, the plaintiff
has endeavoured to prove that the letter covering the
invoices of the goods contained in the second entry,
was not received by him when the first entry
was made. To establish this fact, his clerk,
Mr. Crane, has been examined as a witness, and
admitting that he has told the truth, there would
be some reason to believe, that such were the fact ;
bat there are many circumstances which now appear
in this cause, which compel us to withhold from
Mr. Crane the credit which might otherwise be due
to him. The usual Course of business, as testified
to by several very respectable merchants, stand op-
posed to his relation, that invoices of only part of
the goods contained in those packages, were enclo-
sed in a letter to H» K. Toler & Co., and invoices of
the other goods in a letter to J. K. Jpffray, which
had been forwarded to that gentleman at Albany.
It appears from all the testimony, that if a package,
consigned to one person, contain goods belonging to
different persons, it is customary, and some of the
witnesses say indispensable, to send to the consignee
of the package, invoices of all the goods which it
contains, or to refer, in the main invoice of the con-
signee, to the invoice of the other goods ; and that
the withholding such invoices or information, would
be considered as strong evidence of an intention to
defraud the revenue. Another circumstance which

5^6 CASES IN THE SUPREME COURT

1821. detracts mtich from the credit of this witness, is, that
v^Nrw/ it is more than probable, that at the time of this con-
v. signment, a copartnership subsisted between the
^o^Go^6* claimant and the Jaffrays of London. This appears
not only from an advertisement of a dissolution of
such copartnership, which has been published since
the decree of the Circuit Court, in one of the New-
York papers, but from other testimony in the cause,
and from no contrary proof being furnished by Mr.
Toler. Now, if such partnership really existed,
Which cannot well be disbelieved, it is most extra-
ordinary indeed, that all the invoices of the goods in
that package should not have been sent to the part?
ner residing permanently in the city of New-York,
but that an invoice of part of them should be trans-
mitted to him, and of another, and of the most valua*
ble part^ to a partner who might or might not have
reached this country when the Isabella arrived. If
merchants, who must be presumed to know how to
manage their business, will act in a manner so con-
trary to the general practice of commercial men, they
must expect, and cannot complain, if such deviation
from established usage create suspicions, unfavoura-
ble to the integrity of the particular transaction. It
would have added something to the value of the tes-
timony of Mr. Crane, if the name of the merchant at
Albany, to whose care the letter for Mr. Jaffray had
been transmitted, or if the letter itself, with the post-
marks, had been produced. The importance of the
testimony of Mr. Ash, as delivered before the Circuit
Court, is much weakened by that of Judge Van

OF THE UNITED STATES. 527

Ness, who has also been examined since the appeal ; ion;
for, instead of being simply told at the custom house, u^j^tstoto
when he asked for a permit, that he must call again, . v.
it appears he stated, on his examination in the Dis- of Goo*,
trict Court, that when he applied for a permit on the
3d of November, he was told at the custom house,
that " they wished to examine the goods before they
were delivered ;" and that although he did not see
Mr. Toler until Monday, he communicated to his
clerk, Mr. Crane, what had passed, who doubtless
gave the same information to his principal, which
will account for the solicitude which he discovered
so early on Monday morning to enter the goods
which had been omitted in the entry of Mr. Ash.
There are other circumstances in this case, that are
not here noticed, which render the explanation given
by Mr. Toler, to say die least, extremely question-
able.

The Court cannot dismiss this cause without ex-
pressing its surprise, that more than ten years have
elapsed since the filing of the libel in the District
Court. As all the witnesses who have been exa-
mined since the appeal, reside in the city in which
the cause was tried, they might, and ought, to have
been examined in that Court, and if their testimony
had there been reduced to writing, and used in the
Circuit Court, a final decision might have been had
many years ago, and before the insolvencies which
it is suggested have happened, and have rendered the
further prosecution of these proceedings of little or
no importance to the parties.

528 CASES IN THE SUPREME COURT

i82i. The decree of the Circuit Court is revoked, and

N!fNT^/ the sentence of condemnation pronounced by the

Brashier _. . _. «. .

v. District Court affirmed.

Gratz.

(Chancery.)

Brashier v. Gratz et ah

The general role is, that time is not of the essence of a contract of
sale ; and a failure on the part of the purchaser, or vendor, to per-
form his contract, on the stipulated day, does not, of itself, deprive
him of his right to a specific performance, when be is able to com-
ply with his part of the engagement

But circumstances may be so changed, that the object of the party cam
no longer be accomplished, and he cannot be placed in the same si-
tuation as if the contract had been performed in due time. In suck
a case, a Court of Equity will leave the parties to their remedy at
law.

Fart performance will, under some circumstances, induce* the Court
to relieve.

But where a considerable length of time has elapsed, where the party
demanding a specific performance has railed to perform his part of
the contract, and the demand is made after a great change in the
title and the value of the land, and there is a want of reciprocity in
the obligations of the respective parties, a Court of Equity will not
interfere. >

Appeal from the Circuit Court of Kentucky.

This cause was argued by Mr. B. Hardin* for the
appellant, and by Mr. Sergeant for the respondents.*

a He cited 1 Fonbl. Jfy. 227. 9 Ves. 415. 2 P. Wms. 243. 4
Bro. a. Rep. 329. 469. 391. 1 Ves.jun. 221. 1 Jltk. 12.

6 Who cited Sugd. Fend, 246. 5 Vex. 720. Note. 1 Vm.
jun. 450. 9 Cranch, 456. 8 Crunch, 471.

OP THE UNITED STATES. 529

Mr. Chief Justice Marshall delivered the opi* 1821.
nion of the Court.

. This is an appeal from a decree of the Circuit
Court for the District of Kentucky, dismissing a bill
brought by the appellant against the heirs of Mi-
chael Gratz for the specific performance of a con*
tract.

Michael Gratz, who resided in Philadelphia, had
purchased from John Craig, of Kentucky, a tract of
land containing, by the survey, one thousand acres,
for which no patent had then issued. Subsequent to
this purchase, the patent issued in the name of Craig,
who sold a part of the land to Keyser, and a suit had
been brought in the federal Court of Kentucky by
Gratz, against Craig and Keyser, to compel a con-
veyance of the land. Michael Gratz had, in the
mean time, sold eight hundred and twenty-four
acres, part of this tract, to Robert Barr.

While the suit against Craig and Keyser was de-
pending, Walter Brashier, the plaintiff, who resides
in Kentucky, came to Philadelphia on business, and
on the 2d day of March, in the year 1807, purchased
the residue of the land from Gratz. Brashier had
married the daughter of Robert Barr.

The residue of the land was estimated by the par-
ties at 302 acres, for which Brashier agreed to give
the sum of $6795 in his negotiable notes, payable in
six, twelve, and eighteen months. From this sum
was, however, deducted #250, " allowed to the said
Walter Brashier, towards the costs and expenses of
prosecuting the suits now depending, for the reco-
very of the lands hereby contracted for, which is ac-

Vol. VI. 67

630 CASES IN THE SUPREME COURT

18S1. cepted by the said Walter, as a full satisfaction for
all costs, trouble and expense which be may be at, in
prosecuting the said suits, and which he hereby
agrees and undertakes to manage at his own costs
and expense. And it is hereby agreed that a correct
and accurate survey shall be made, at the expense of
the said Michael, of all the said residue of the above-
mentioned tract of land, lying within the limits of the
original survey thereof, not sold to the said Robert
Barr ; and if, upon such survey, it shall be found,
that the said residue doth not contain the quantity of
302 acres, then, for every one deficient, the said Mi-
chael Gratz, his heirs, executors, or administrators,
shall pay or allow to the said Walter Brashier, his ex*
ecutors, administrators or assigns, the sum of twen-
ty-two dollars and a half; and if any part of the said
residue shall be lost, in all, or any of the said suits
now depending, or that may be instituted hereafter,
for any part of the said residue, the said Michael
Gratz, his heirs, executors or administrators, shall
only be liable to refund to him, the said Walter Bra-
shier, his executors, administrators or assigns, the
sum of 1 1 dollars 25 cents, for each and every acre
so lost It being hereby declared, that the said Wal-
ter Brashier has purchased the title of the said Mi-
chael Gratz, at his own risk and hazard, and so that
he shall have no recourse against the said Michael
Gratz, for want of, or for any defect in the title to
the said residue, or any part thereof, save only the
price of 1 1 dollars 25 cents per acre, for every acre
which shall be lost as aforesaid. And the said M.
G. for himself, his heirs, executors, and administra-

OP THE UNITED STATES. 631

tors, doth covenant and agree, that he or they shall and mi.
will, at any time after payment of the notes aforesaid,
when thereunto required, by a good and sufficient
deed, conveyance, or assurance in the law, convey
and assure unto the use of him, the said Walter Bra-
shier, his heirs and assigns forever, all his, the said
Michael Gratz's estate, right, title and interest, of and
in all the said residue of the above mentioned tract of
land.

Mr. Brashier executed his notes in conformity
with this contract, and returned to Kentucky, where
he requested his brother-in-law, Thomas T. Barr, to
attend to the prosecution of the suits then depending.
Mr. Barr resided near the place where the Court was
held, and Mr. Brashier at the distance of sixty or
seventy miles. Mr. Barr immediately employed
Mr. Bledsoe, a lawyer of eminence, to assist Mr„
Hughes, who had been engaged by Mr. Gratz, and
some time afterwards spoke to Mr. Wickliffe, but did
not pay him a fee. No progress, however, seems to
have been made in these suits, and the plaintiff failed
to pay the fees of the officers of the Court, which
were demanded and received from Michael Gratz,
in the year 1811, and afterwards from his represen-
tatives.

The notes for the purchase money were protested
for non-payment, and have not been paid.

In 181 1, Mr. Brashier came to Philadelphia, when
Gratz offered to convey the land on his paying his
notes. Mr. Brashier being unable to pay them,
Gratz offered to rescind the contract, which Bra-
shier declining to do, the question was referred

532 CASES IN THE SUPREME COURT

1921. to arbitrators, who were of opinion, that the contract
was still binding. About this time, Brashier, who
bad been for some time much embarrassed, appears to
have become notoriously insolvent In the autumn
of 181 1 , Gratz departed this life, and in July, 1812,
his heirs again offered to convey, on payment of the
notes which Brashier had given for the purchase
money. Payment not being made, the heirs of
Gratz took the management of the suits again into
their own hands, which were prosecuted with vigour,
and in 1813, were finally determined by a decree in
their favour. About this time the land rose sudden* -
ly to about 80 or 100 dollars per acre. After the
decision of the cause, and after this rise in the value
of the land, Brashier, in November, 1813, entered
into an agreement with Lewis Saunders, by which
he was to convey to Saunders half the land pur-
chased of Gratz, in consideration of Saunders pay-
ing, or tendering to the heirs of Gratz, the full
amount of the notes he had given for the purchase.
Saunders immediately offered his contract to the
heirs of Gratz, and requested them, if they were
willing to take it, and to indemnify him, to acknow-
ledge a tender of the money, which the contract
bound him to tender. They avowed their opinion,
that the contract of Michael Gratz with Brashier
was of no validity, but consented to take the contract
with Saunders, and acknowledged the tender.
When in possession of this acknowledgment, Bra-
shier instituted his suit in the Court of Kentucky
for a specific performance of the contract qf the 2d
of March, 1807. The defendants removed this suit

OF THE UNITED STATES.

533

1821.

into the Circuit Court of the United States, where
they filed their answer, insisting, that the Court
Ought not to decree a specific performance, because
the plaintiff had totally failed to perform his part of
the contract until there was such a change of cir-
cumstances as materially to affect the rights of the
parties. The Circuit Conrt dismissed the bill, and
from that decree the plaintiff has appealed to this
Court.

The appellant insists, that in equity, time is not
of the essence of the contract ; that it is in part per-
formed ; and that his failure to pay the purchase mo-
ney until December, 1813, when the tender was
made, is justified by the circumstances of the case.

The rule, that time is not of the essence of a con- Limitation! of
tract, has certainly been recognized in Courts of that time ;• not

7 J ° of the essence

equity ; and there can be no doubt, that a failure on of the contract
the part of a purchaser or vendor, to perform his
contract on the stipulated day, does not, of itself, de-
prive him of his right to demand a specific perform-
ance at a subsequent day, when he shall be able to
comply with his part of the engagement. It may be
in the power of the Court to direct compensation for
the breach of contract in point of time, and in such
case the object of the parties is effectuated by carry-
ing it into execution. But the rule is not universal.
Circumstances may be so changed, that the object
of the party can be no longer accomplished, that he
who is injured by the failure of the other contracting
party, cannot be placed in the situation in which he
would have stood had the contract been performed.
Under such circumstances, it would be iniquitous to

534 CASES IN THE SUPREME COURT

1821. decree a specific performance, and a Court of equity
will leave the parties to their remedy at law.

It is true, that he who has been ready to perform,
may at any time file his bill" in Chancery, requiring
the other party to perform his contract or to rescind
it ; and the Court will rescind the contract if he who
has failed cannot, or will not, perform it But this
is not always necessary, and would not be always an
adequate remedy.

If, then, a bill for a specific performance be brought
by a party who is himself in fault, the Court will
consider all the circumstances of the case, and decree
according to those circumstances.

A consideration always entitled to great weight,
is, that the contract, though not fully executed, has
been in part performed. The plaintiff claims the
benefit of this principle, and alleges, that by prose-
cuting and managing, at his own expense, the suits
depending in Kentucky, be has performed that part
of the agreement.

If this allegation be supported by the fact, it will
undoubtedly have great influence in the decision of
the cause.

The evidence is, that the plaintiff, soon after his
return to Kentucky, employed a gentleman of the
bar, in addition to the counsel previously engaged by
Mr. Gratz, and paid him his fee. It is also in evi-
dence, that finding the business did not advance, he
spoke to other counsel ; but his application was not
accompanied with a fee, and was not much regarded.
It appears that a survey was necessary, and that the
deposition of a Mr. William Morton was indispensa-

OF THE UNITED STATE?. 535

ble to the successful termination of the cause. Yet 1321.
the survey was not made, and the deposition of Mr.
Morton, though its importance had been communi-
cated to Brashier, was not taken. The fees to the
officers of the Court were not paid, and Mr. Gratz
was required to pay them. From March, 1807,
when the contract was made, to the autumn of 181 1,
when Mr. Gratz died, the suit did not advance. The
clerk informs us, that during this time, no other step
was taken in the cause than to move for leave to
amend the bill and to continue it. The embarrass*
meat of Mr. Brashier's affairs, and his insolvency,
added to this experience of his neglect of the cause,
were but little calculated to inspire confidence in its
future progress, or in his future attention to it. In
1812, the heirs of Mr. Gratz took the management
of the business into their own hands. The deposi-
tion of Mr. Morton was taken, the survey was made,
and, in 1813, a decree was obtained in their favour.

We think this cannot be considered as such a per-
formance of his undertaking, " to manage the suits
at his own expense," as to entitle him to call on the
vendor for an execution of the contract.

It has also been contended, that by the agreement
between the parties, Mr. Gratz was bound to survey
the land, and that this was a preliminary step to be
taken by him before he could justly require Mr. Bra-
shier to pay his notes for the purchase money.

Although this could not, at law, be pleaded to
notes importing an absolute promise to pay money,
it will readily be admitted, that if the understanding
of the parties had been, that Mr. Gratz should make

536 CASES IN THE SUPREME COURT

i82i. the survey, and that it should precede the payment
'of the notes, such understanding would account for
the non-payment of the notes, and would place the
demand for a specific performance of the contract on
very strong ground.

But the agreement does not indicate the expecta-
tion, that Mr. Gratz should make the survey, al-
though the expense of it would be chargeable to him,
and as it might be of advantage to Mr. Brashier,
and could be of none to Mr. Gratz, as Mr. Brashier
was a resident of Kentucky, and Mr. Gratz of Phila-
delphia, the expectation was not unreasonable, that
Mr. Brashier would cause it to be made. He might
Jbe expected to move in this business, and to require
Mr. Gratz to attend to it. His not having done so,
is a proof that he did not suppose the survey to be
of any consequence, because he did not intend to
pay so much of the purchase money as the survey
would show he ought to pay.

But the articles of agreement, far from showing
that the survey was to precede the payment of the
notes, contain expressions indicating the intention,
that their payment was not to depend on the survey.
The parties stipulate, that for every acre which the
survey shall show the tract to contain less than 302
acres, Gratz " shall pay or allow" to Brashier the
sum of 22 dollars 50 cents. That is, shall " pay"
him if the notes shall have been received, shall
" allow" to him if the deficiency shall appear before
payment of the notes.

Had Mr. Brashier been able and willing to pay
his notes as they became due, he had sufficient mo-

Grate,

OF THE UNITED STATES. 537

tives for surveying the land. He had reason to be- 1821.
lieve, that there would be a deficiency. On his re- ^X^
turn from Philadelphia, in 1807, Mr. Barr, who
lived upon the land, and was acquainted with its
iwundaries, told him that there could not possibly
be the quantity he had purchased. He knew, too,
that the land had been actually surveyed in October,
1807, by a son of Mr. Gratz, and had reason to be-
lieve, that this survey must have disclosed a defi-
ciency. His omission to make any inquiries of Mr.
Gratz, or to make a survey, or to demand one, show
that his conduct respecting his notes did not depend
on a survey.

We do not think, then, that Mr. Brashier is justi-
fied in withholding the payment of the purchase
money by the fact that the quantity of land was not
ascertained ; nor does the evidence support the opi-
nion that this fact had any influence on his conduct.
The plaintiff also attempts to justify the non-pay-
ment of the purchase money by the inability of Mr.
Gratz to make him a title. But this excuse entirely
fails him. He knew perfectly the state of the title,,
and the articles of agreement show that he knew it.
They expressly declare that " the said Walter Bra-
shier has purchased the title of the said Michael
Gratz, at his own risk and hazard ;" and that if
any part of the land be lost, the said Michael " shall
only be liable to refund to him the sum of 1 1 dollars
25 cents for each acre that may be lost." The con-
tract states that suits were depending for the land,
which suits Brashier undertook to manage ; and all
the testimony in the cause shows that he knew those
Vol. VI. 68

538 CASES IN THE SUPREME COURT

1821, suits were brought for the legal title. With this full
knowledge, he purchases the title of Gratz, and sti-
pulates that, after the payment of the purchase mo-
ney, Gratz shall convey, not the land, or a good
and sure title to it, but " all his the said Michael
Gratz' estate, right, title and interest, of and in all
the said residue of the above mentioned tract of
land."

It is then an essential ingredient in this contract,
that the purchase money shall be paid without wait*
ing for the termination of the cause. Brashier takes
the whole risk upon himself, except as to half the
price of every acre which may be lost ; and he is not
to retain even that portion of the purchase ; but it is
$o be " refunded" to him whenever the loss shall
take place. He had then no right to withhold the
payment of the purchase money until the suits
should be determined ; and any attempt to do so was
a violation of the letter and the spirit of his contract.
The state of the title furnishes no sort of apology for
this violation. Gratz was able to make the convey-
ance which he had contracted to make, and which
Brashier had contracted to receive ; and his want of
the legal title furnished no excuse for the non-pay-
ment of the purchase money.

The situation of the parties, and the circumstan-
ces in which the property was placed, deserve, serious
consideration. The contract was made while a suit
for the title was depending, and there is reason to
suppose that this circumstance had some influence
on the price of the article. We perceive that if any
part of the land should be lost, one half the purchase

OP THE UNITED STATES. 539

money should be lost by Brastaier. While the suits mi.
were depending, and the purchase money unpaid,
Brashier became insolvent. Consequently, should
the land be recovered, it would be the property of
Brashier at the stipulated price ; should it be lost,
Brashier could not pay that portion of the price
which he was to pay in the event of loss. Under
such circumstances, had a suit in chancery been
brought to have the contract rescinded, unless he
would pay the purchase money, no Court could have
hesitated to decree according to the prayer of the
bill. No Court could allow one party to hold the
other bound, while the obligation was not recipro-
cal ; or to hold himself prepared to avail himself of
all favourable contingencies, without being affected
by those which were unfavourable.

Mr. Brashier, then," if he did not execute his part
of the contract with punctuality, ought to have exe-
cuted it before a great change of circumstances took
place ; before the doubts which hung over the title,
and under which be had purchased, were dissipated.
That he did not do so, and was unable to do so, that
in the event of an unfavourable termination of the
suits he would be totally unable to comply with his
contract, weakens very much the claim to a specific
performance, which he sets up after the removal of
the difficulties which attended the title.

Another circumstance which ought to have great
weight, is the change in the value of the land. It
was purchased at 22 dollars SO cents per acre. Mr.
Brashier Failed to comply, and was unable to com-
ply with his engagements. More than five years

5|0 CASES IN THE SUPREME COURT

mi. after the last payment had become due, the land sud-
denly rises to the price of SO dollars per acre. Then
he tenders the purchase money, and demands a spe-
cific performance. Had the land fallen in value, he
could not hare paid the purchase money. This total
want of reciprocity gives increased influence to the
objections to a specific performance, which are fur-
nished by this great alteration in the value of the ar-
ticle.

Both parties have sought to avail themselves of
the transaction with Mr. Saunders, by whom the
purchase money was tendered in Dec. 1813. The
defendants say that Brashier was still unable to com-
ply with his contract, and that the tender was made
in consequence of an arrangement by which Saun-
ders was to advance the whole purchase money, and
to receive half the land. But it was unimportant to
them, whose money was tendered, or how it was
obtained. Of this circumstance, therefore, they can-
not avail themselves.

The plaintiff insists that tte contract between the
defendants and Saunders was a fraud on him, because
he had a right to consider Saunders as his friend
and agent. But the tender of the purchase money
was the only service he was to expect from Saun-
ders, and this service has been performed. He is
precisely in the same situation as if the contract be-
tween Saunders and the defendants had never been
made.

It has been also contended, that the concealment
of the survey made by Joseph Gratz, in. October,
1807, and the demand of the whole amount of his

OF THE UNITED STATES. 541

notes, after a knowledge of the deficiency in the i&n
quantity of land, were fraudulent on the part of the
defendants*

Mr. Brashier knew that the survey had been
made, and had reason to believe that it disclosed a
deficiency in the quantity of land. He has sustained
no injury by the omission to make a full communi-
cation to him* It is certainly true, that after the
knowledge of this deficiency, Mr. Grate in his life-
time, and his heirs since his decease, ought not to
have demanded the full amount of his notes. The
Court, therefore, allows them no advantage from
their repeated offers, to convey, on receiving the
whole amount of the notes ; but considers the case
as if no such offers had ever been made.

This then, is a demand for a specific performance,
after a considerable lapse of time, made by a person
who has failed totally to perform his part of the con-
tract ; and it is made after a great change, both in
the title, and in the value, of that which was the sub-
ject of the contract ; and by a person who could not
have been compelled to execute his part of it, had
circumstances taken an unfavourable direction.

In such a case, we are of opinion, that a Court of
equity ought to leave the parties to their remedy at

law.

Decree affirmed.

Daniel

642 CASES IN THE SUPREME COURT

1821.
UnitedStates (PaACTicE.)

The United States v. Daniel.

A division of the judges of the Circuit Court, on a motion for a new-
trial, in a civil or a criminal case, is not such a division of opinion
as is to be certified to this Court for its decision, under the 6th sec—
• tionof the judiciary act of 1802, c 291. [xxi.]

This was an indictment in the Circuit Court of
South Carolina against Lewis Daniel, charging him
with having knowledge of the actual commission of
the crime of wilful murder, committed on the high
sea, by John Furlong ; and with unlawfully, wick-
edly, and maliciously, concealing the same, &c.

The indictment set forth, at large, the indictment
and conviction of John Furlong, for wilful murder
on the high seas, and then charged Lewis Daniel
with the knowledge and concealment of that mur-
der, and with not having disclosed the same, in the
words of the act of Congress. The prisoner was
tried on the plea of not guilty. It was proved that
some of the persons present on board, when the
principal felony was committed, had in conversation
stated the fact of the murder to the defendant, who
advised them to escape, promised secrecy, offered
them the means of escape, and actually assisted one
of them in escaping ; but there was no evidence that
the defendant knew of any fact, which would have
constituted legal evidence on the trial of the prin-
cipal felon. The judge charged the jury, that the
concealment, under the circumstances, was sufficient
to convict the defendant, and the jury found a ver-

OF THE UNITED STATES. 643

diet of guilty. , The defendant then moved in arrest mi.
of judgment, and for a new trial, on the following r^^^L^
grounds. That a person is not liable to be indicted v.
and convicted under the 5th section of the act of
April, 1790, c. 36. for the punishment of certain
crimes against the United States, unless he has such
knowledge of the felony as will enable him to testify
in Court, at the trial of the principal felon, and par-
ticularly that in this case the evidence did not prove
the defendant guilty of misprision of murder, accord-
ing to the terms of the said act. The motion was
also supported by an alleged misdirection of the
Court to the jury. The judges being divided ih
opinion on this motion, it was ordered to be certified
to this Court

Mr. Hunt, for the prisoner, (1.) argued, that to March eth.
Constitute the offence of misprision of felony, under
the 5th section of the Crimes Act of 1790, c 36.
the accused must be proved to have had such a di-
rect and positive knowledge of the actual commis-
sion of the felony, as would be legal evidence on the
trial of the principal felon. Here the offence is,
what in law is termed negative misprision*' All the
definitions of misprision imply such a personal know-
ledge of the fact as would be legal evidence.* But
here there was no such knowledge ; and if the Court,
upon a review of the whole case, is satisfied that the

a 4 BL Com. c. 9. 3 Inst. 140.

b 4 Jac. Law Diet. 296. Staun4f. P. C.L.1. c. 19. Hawk.
P. C. c. 20. i. 4. 1 Hale's P. C. 375. Terms de la Ley, 291.
3 Inst. 36. 1 Chitty's CWm. Law, 2.

644 CASES IN THE SUPREME COURT

lsii. defendant has not been found gtiilty of any legal of-
UniiedStetes ^ence> ^e judgment will be arrested." In order to
v. bring a case within the intention of a statute, its
language must include the case ; it is not sufficient
that it is within the reason or mischief, or that the
crime is of equal atrocity, and of an analogous cha-
racter/ The prisoner could not have been a witness
against the principal felon. The law never credits
the bare assertion of any one, however high his rank
or pure his morals, but always requires the sanction
of an oath : and it also requires his personal attend-
ance in Court, that he may be examined and cross-
examined by the different parties. The few in-
stances in which this rule has been departed from,
and in which hearsay evidence has been admitted,
will be found on examination to be such as from
their very nature are incapable of positive and direct
proof. (2.) This Court has decided, that the refu-
sal of the Circuit Court to grant a new trial, is not
matter for which a writ of error lies. But in those
cases the judges of the Court below were unani-
mous in refusing the new trial : here a division of
opinions is certified, and this Court is bound to de-
cide by the express words of the judiciary act of
1802, c. 291.

The Attorney- General, contra, (1.) insisted that
there was no grouud for arresting the judgment, or

a 1 East's P. C. 146. 1 Chitty'i Crim. Lam, £63. 1 Hdrgr.
St. Tri. 290.
b Wiltberger v. United States, 5 Wheat. Rep. 96.

r.
Daniel.

OP THE UNITED STATES. 545

granting a new trial. The evidence brought the im.
case completely within the Crimes Act of 1790, c. us-Q^Lg
36. The object of the act was the prompt detection
and punishment of the crimes enumerated. The de-
gree of knowledge required to bring a party within
the misprision described, is such as is sufficient to
justify an arrest ; and well-founded suspicion is suffi-
cient for that purpose/ (2.) The motion in the
Court below, in arrest of judgment, combined with
a motion for a new trial, is novel and unprecedented.
But this combination cannot vary the legal charac-
ter of these two motions, which is entirely distinct.
A motion in arrest of judgment must be confined to
objections which arise upon the face of the record
itself, and which make the proceedings apparently
erroneous : therefore, no defect in evidence, or im-
proper proceedings at the trial, can be urged as a
ground for arresting the judgment/ The exceptions
in arrest of judgment are to the indictment/ On the
other hand, a motion for a new trial is for causes
other than defects in the pleadings ; and the circum-
stance that the verdict was obtained because the
pleadings were defective, will not be permitted to
operate on this motion/ On inspection of the re*
cord in this case, it will be found that the only
grounds assigned in support of the joint motion are
such as are entirely inapplicable to the motion for a
new triaL Thesfe grounds are the misdirection of

a ChittyU Crim. Law, 10. 27. 4 BL Comm. 290,
b 1 ChUty's Crim. Law, 539.
is 4 BL Comm. 375.
. d 1 Chitty, 535.
Vol. VI. 69

546 CASES IN THE SUPREME COURT

1821. the judge, and that the verdict was obtained on ia-
V>FV^/ sufficient evidence. The Court will, therefore,

United States .

r. throw out of view the motion to arrest the judgment,
*"* " and consider this as a motion for a new trial, on
Which the judges of the Court below were divided
in opinion. And if so, there is no question before
this Court : since it has repeatedly decided, that the
granting or refusal of a new trial, is mere matter of
discretion in the Court below ; and hence, the re-
fusal of a new trial, even though the grounds on
which the motion was founded are spread on the re-
cord, is no sufficient cause for a writ of error from
this Court/ In a civil case, if the Court below be
divided on such a motion, the motion falls. Nor is
it otherwise in a criminal case. This Court has no
appellate criminal jurisdiction. It is only by virtue
of the 6th section of the judiciary act of 1802, that
a criminal case can ever be brought to this Court.
That section w^s not, however, made exclusively for
criminal cases. The provision is genera] : and it is
only by reason of its generality that a question in a
criminal case can ever reach this Court. But being
general, it must have the same construction in all
cases. If, then, in a civil case, a division of the
judges on the mere discretionary question of a new
trial, would bring no question here ; neither will it in
a criminal case.

Mmkim. Mr. Chief Justice Marshall delivered the opi-
nion of the Court.

* Wheat* Dig. Dee. tit. Practice XV. (A.) 4

Daniel

OF THE UNITED STATES. 647

The indictment in this case is certainly sufficient to iwi.
sustain a judgment according to the verdict, and all Tj^O^Lg
the other proceedings are regular. There is there- ^j^
fore no cause for arresting the judgment

The motion for a new trial has never before been
brought to this Court on a division of opinion in the
Circuit Court. It had been decided, that a writ of
error1 could not be sustained to any opinion on such
motion, and the reasons for that decision seemed en*
titled to great weight, when urged against deter-
mining such a motion in this Court, in a case where
the judges at the circuits were divided on it.
When we considered the motives which must have
operated with the legislature for introducing this
clause into the judiciary act of 1802, we were satis-
fied that it could not be intended to apply to motions
for a new trial.

Previous to the passage of that act, the Circuit
Courts were composed of three judges, and the
judges of the Supreme Court changed their. Circuits.
If all the judges were present, no division of opi-
nion could take place. If only one judge of the Su-
preme Court should attend, and a division should take
place, the cause was continued till the next term,
when a different judge would attend. Should the
same division continue, there would then be the opi-
nion of two judges against one ; and the law provided,
that in such case that opinion should be the judg-
ment of the Court. But the act of 1802, made the
judges of the. Supreme Court stationary, so that the
same judge constantly attends the same circuit
This great improvement of the pre-existing system,

548 CASES IN THE SUPREME COURT

1821. was attended with this difficulty. The Court being
„ ^fT^ always composed of the same two judges, any divi-
v. sion of opinion would remain, and the question
Daniel. wouj(j continue unsettled. To remedy this inconve-
nience, the clause under consideration was introdu-
ced. Its application to motions for a new trial
seems unnecessary. Such a motion is" not a part of
the proceedings in the cause. It is an application
to the discretion of the Court, founded on evidence
which the Court lias heard, and which may make
an impression not always to be communicated by a
statement of that evidence. A division of opinion is
a rejection of the motion, and the verdict stands.
There is nothing then in the reason of the provision
which would apply it to this case.

Although the words of the act direct generally,
" that whenever any question shall occur before a
Circuit Court, upon which the opinion of the judges
shall be opposed, the point upon which the disagree-
ment shall happen shall" be certified, &c. yet it is
apparent that the question must be one which arises
in a cause depending before the Court relative to a
proceeding belonging to the cause. The first proviso
is, " That nothing herein contained shall prevent
the cause from proceeding, if, in the opinion of the
Court, farther proceedings can be had without preju-
. dice to the merits."

It was also contended, that under the second pro-
viso, Lewis Daniel ought to be discharged. That
proviso is in these words : " And provided also that
imprisonment shall not be allowed, nor punishment
in any case be inflicted, where the judges of the said

OF THE UNITED STATES. £4$

Court are divided in opinion upon the question touch- isti.

ing the said imprisonment or punishment"

A motion for a new trial is not " the question v.
touching the said imprisonment or punishment."
That question must arise on the law, as applicable
to the case ; and is not, it would seem, to be referred
to this Court. The proviso, if applicable to such a
case as this, would direct the Circuit Court not to
certify their division of opinion to this Court, but, in
consequence of that division, to entet a judgment for
the defendant. This Court can only decide the
question referred to it, and certify its opinion upon
that question to the Circuit Court, who will then de-
termine what judgment it is proper to render.

Certificate. This cause came on to be heard
on the transcript of the record ; and on the points on
which the judges in the Circuit Court were divided
in opinion, and was argued by counsel : On consi-
deration whereof, this Court is of opinion, that there
is no error in the record and proceedings of the Cir-
cuit Court, for which judgment ought to be arrested.
And this Court is farther of opinion, that a division
of the judges of the Circuit Court, on a motion for a
new trial, is not one of those divisions of opinion
which is to be certified to this Court for its decision,
under the act, entitled, " an act to amend the judicial
system of the United States."

All which is ordered to be certified to the Uni-
ted States Court for the sixth Circuit and District of
South Carolina.

CASES IN THE SUPREME COURT ;

(Chancery. Local Law.)

Kerr et (d. v. Wa^tts. •

The decision of this Court, in Massie r. Watts, 6 Crunch, 148. re-
vised and confirmed.

Who are necessary parties in equity.

The rule applied in equity to the relief of bona fide purchasers with-
out notice, is not applicable to the case of purchasers of military
land warrants under the laws of Virginia.

Such purchasers are considered as affected with notice by the record
of the entry, and also of the survey ; and subsequent purchasers
are considered as acquiring the interest of the person making the
entry ; so that purchasers under conflicting entries are considered
as purchasing under distinct rights, in which case the rule, as to
innocent purchasers, does not apply.

The principle, that only parties, or privies, or purchasers pendente
lite, are bound by a decree in equity, how applied to this case.

The surveys actually made on the military land warrants of Virginia,
have not the force of judicial acts, or of acts done by the deputa-
tions of officers as general agents of the continental officers*

Appeal from the Circuit Court of Ohio.

Ferdinando O'Neal was owner of a Virginia mili-
tary warrant for 4,000 acres of land, dated the 17th
of July, 1783. and employed Nathaniel Massie, a
deputy surveyor, to locate it, and to survey and re-
turn the plats.

John Watts purchased the right of O'Neal, aad
on the 7th of January, 1801, paid Massie 50 pounds
in full satisfaction for locating and surveying the
warrant.

On the 3d of August, 1787, Massie made an entry
on part of O'Neal's warrant for 1,000 acres* On

OP THE UNITED STATES- 561

the same day an entry had been made for 1,000 mi.
acres for Robert Powell, which was purchased by
Massie.

On the 27th of January, 1795, Massie made an
entry in his own name for 2,366 acres, and the bill,
filed in the Court below by the respondent, Watts,
against the appellants, Kerr and others, charges,
that on the 26th of April, 1796, Massie fraudulently
made a survey for O'Neal, for 630 acres, purporting
to be made upon his said entry of 1,000 acres ; but,
in fact, on different land, having fraudulently appro-
priated to himself the land covered by O'Neal's
entry, by surveys made on Powell's and bis own
entries, having purchased Powell's warrant and entry
before the surveys were made.

The bill further states, that Massie had obtained
grants upon his survey.

Watts commenced a suit in Chancery against
Massie in the State Court of Kentucky, claiming a
conveyance of the legal title, and proceeded to a
final hearing upon the merits, in the Circuit Court
of Kentucky, to which it had been removed ; which
last Court, in the November term, 1807, made an in-
terlocutory decree, in favour of Watts, and directed
the proper surveyor to lay off the several entries in
the manner pointed out in that decree, and to report
to the Court in order to a final decree in the pre-
mises.

The cause was finally decided by a decree direct-
ing Massie to convey tjie 1,000 acres to Watts ac-
cording to certain metes and bounds reported, and to
deliver possession, &c. ; and upon performance of

662 CASES IN THE SUPREME COURT

i8si. the decree by Massie, Watts was directed to transfer
to him 1,000 acres of O'Neal's warrant.

r. Massie appealed to this Court; where the decree

Watt8# of the Circuit Court was affirmed, at February term,
1810/

Massie refused to convey or deliver possession
when demanded ; and in the mean tfme part of the
property recovered had been laid out into lots of the
town of Chilicothe, and the bill charges the appel-
lants, and others, who were made defendants in the
present suit, with having in possession, respectively,
part of the complainant's property, and claiming to
hold the same by titles derived under Massie.

The record of the proceedings in Kentucky, and
in the Supreme Court, were referred to, and made
part of the bill in this case.

The entries before mentioned are as follows :

" No- 503: Captain Robert Powell enters 1,000
acres of land, &c. Beginning at the upper corner
on the Scioto of Major Thomas Massie's entry, No*
480, running up the river 520 poles, when reduced
to a straight line, thence from the beginning with
Massie's line, so far that a line parallel to the gene-
ral course of the river shall include the quantity."

" No. 509 : Captain Ferdinand O'Neal enters
1,000 acres, &c. Beginning at the upper corner on
the Scioto of Robert Powell's entry, 503, runniug up
the river 500 poles, when reduced to a straight line,
and from the beginning with Powell's line, so far
that a line parallel with the general course of the
river will include the quantity.?'

a 6 Cranch, 148.

Kerr

Walfr.

OF THE UNITED STATES. 553

" No. 2462 : Nathaniel Massie enters 2,366 acres, mi.
. &c. on the bank of Scioto, corner to Robert Powell's
survey, No. 503, thence with his line south 43 east
293 poles ; south 80 east to the upper back corner
of Thomas Massie's survey, No. 480, thence with
his line south 10 west, to Paint Creek, thence up the
creek to the corner of Thomas Lawes' survey,
thence with his line, and from the beginning up the
Scioto to the lower corner of Daniel Stull's survey,
thence with his line so far that a line south 10 west,
Will include the quantity."

But these, entries depended on one which preceded
them on the entry book, made by Thomas Massie,
as follows :

"No. 480: 1787, August 3d. Thomas Massie
enters 1,400 acres, &c. Beginning at the junction
of Paint Creek with the Scioto, running up the
Scioto 520 poles when reduced to a straight line,
thence off at right angles, with the general course
pf the river so far that a line parallel thereto will in-
clude the quantity."

This Court, in the case referred to, decided, that
Thomas Massie's survey ought to commence at the
mouth of Paint Creek ; and that the upper corner
on the river should be placed at the termination of a
right' line at the distance of 520 poles, and the sur-
vey extended out at right angles with the general
course of a right line supposed from the beginning
to the upper corner : and that, from the upper corner
of Thomas Massie's survey, a point on the river, at
the distance of 520 poles on a right line should be
Vol. VI. 70

S54 CASES IN THE SUPREME COURT

1821. ascertained for the upper corner of Powell's, and
that the real course of a right line from Thomas
Massie's corner to Powell's upper corner, should be
considered as a base from which Powell's survey
should be extended by lines at right angles therewith,
except only so far as the lower line might interfere
with Thomas Massie's property.

The survey of O'Neal to depend upon the same
principles in relation to the survey of Powell.

' The object of the present suit was to carry into
execution against the defendants, who have acquired
Massie's title, the decree against him in Kentucky,
affirmed in this Court.

The Court below, by their decree, gave relief against
each, for the specific property claimed by the answer
of each, construing the entries according to the prin-
ciples of the former decision, except in varying the
complainant's survey, by a decision that a piece of
land called an Island in the river, was part of the
main shore when the entries were made, and includ-
ed as a part of the bank.

The defendants all submitted to the decree, except
Kerr, Doolittle, Joseph Kirkpatrick, sen. Joseph
Kirkpatrick, jun-, and the heirs of James Johnston,
who appealed to this Court.

rdnt<ny \wu The Attorney- General and Mr. Scott y for the ap-
pellants, argued, (1.) that the survey made for Pow-
ell ought to be established, because made under the
superintendence of officers to whom the State of
Virginia had deputed the sovereign and exclusive
authority to regulate such surveys, similar to the

OP THE 0N1TED STATES. 5£5

powers of commissioners to adjust pre-emption 1*21.
rights ; and that their determination was conclusive,
being an inseparable condition annexed to the grant
from the State/ The existence and power of these
agents has been recognised by the Court/ (2.) The
appellant, Kerr, is an innocent purchaser without
notice, who holds the legal estate with superior
equity, and therefore cannot be disturbed by the al-
leged equity of Watts. The cause having been set
down for hearing on the bill and answers, his answer
is conclusive evidence as to every fact which it
states :c and it does state that at the filing of the
bill he had the legal title ; and that before either
party purchased, the entries had been surveyed, and
become matters of record. A survey returned and
recorded is notice.4 He is not affected by the sup-
posed fraud of Massie, in making Powell's survey.
Massie was only one of several mesne purchasers of
Powell's rights ; and if Powell, the original holder,
was innocent, a subsequent purchaser under him has
a right to the shield of his innocence, even though
such purchaser had notice.' Nor is the appellant a
lite pendente purchaser, because the former suit was
brought in Kentucky, out of the jurisdiction where
the land lies/ The rule is borrowed from the com-

a 2 Ventr. 365. 3 Ch. Cos. 135.
b Wallace v. Anderson, 5 Wheat. Rep. 291 .
c Wheat. Dig. Dec. tit. Chancery, pi. 142. Leeds v. Mar, lot*
Co. 2 Wheat. Rep. 380.
d 3 Binney's Rep. 1 18.
t 2 Atk. 242. 1 1 Vu. 478. Sugd. Fend. 438.
/ 2 P. Wm$. 482,

£&6 CASES IN THE SUPREME COURT

ia*i. Bfion law ; and its analogies must, therefore, be pin-
sued. A verdict and judgment at law, or a decree it*

Kerr

Watt*

r. equity, affecting the title to land, are local- in their
nature. The lis pendens must be on the question of
title directly, and not incidentally. The principle
is confined to those who attempt to originate a title
pendente lite ; and is never extended to those who
bad acquired a title previously, and who ought, there-
fore, to have been made parties to the lis pendens.
Its policy is to prevent the parties from alienating*
and thus evading the justice of the Court Even if
the appellant had no legal title, but had only the bet-
ter right to call for it, he could not be affected in
equity by the pendency of the former suit* Nor is
he bound asr privy to the former decree. No perscm
can be bound as such, who ought to have been made
a party : as to all who ought to have been parries,
snch a decree is considered as a fraud/ Those oolj
Are privies, who acquire this interest subsequent to
the institution of the suit, by the decree in which
they are sought to be affected. Besides, the ques-
tion here is substantially different from that which
arose in the former case. There it was as to the res-
ponsibility of an agent to his principal, for an alleged
fraud. Here it is as to the dispossession of a bona
fide purchaser.

Mr. Doddridge and Mr. Hardin, contra, stated
that they should not examine the correctness of the

a 2 Fern. 599.

h 1 Binney's Rep. 217. 2 Binney 40. 455. '3 Binttey, 114.

OP THE UNITED STATES. 5d7

decision in the former case, nor the question whe- mi.
ther the appellants were bound by the decree against
Massie* under whom they claim ; since, whether they
were bound by it as a res judicata or not, the Court
would not change the application of the former ad-
judication, unless the appellants showed themselves
lobe purchasers for a valuable consideration without
notice, or unless the respondent had been guilty of
some gross negligence. The defence of being a
purchaser without notice, can never be set up by or
against one claiming under a different original title.
It is admitted to be the general rule, that where
the cause is set down for a hearing on the bill and
answer, the answer of the defendant is conclusive :
but where the answer proceeds upon the ground of
snaking the defendant an innocent purchaser, and the
records, &c. made part of the bill, show that he can-
not be such, there the law charging him with notice
from the registry, forms an exception to the rule.
The title of the respondent is an imperfect legal ti-
tle ; and his claim being a matter of record, cannot
be treated as a latent equity, for negligence in prose-
cuting which he shall lose his property. In the sys-
tem of land laws which has been established in this
country, land titles commence by a record, and the
very first step confers an inchoate legal title.]

Mr. Justice Johnson delivered the opinion of the Mardi iso.
Court.

This cause has its origin in the case decided in
this Court between Watts and Massie} in the year
1810.

Watts.

568 CASES IN THE SUPREME COURT

1821. That suit came op from the Kentucky District^

Kerr an(* was prosecuted there because M assie, the defen-
dant, then resided in that State, and either was, or
was supposed to be, actually seised of the land ia
question.

Since that decision, it has been ascertained that
the present defendants are in possession of the land,
or the greater part of it ; and Massie also having
changed his residence to Ohio, this suit has become
necessary, both to enforce the former decree against
him, and to obtain relief against the actual possessors
of the land.
Former deci. In the course of discussion, the Court has been

•ion in this case

reviied and called on to review its decision in Watts and Massie.

confirmed.

and it has patiently heard, and deliberately consi-
dered, the able and well-conducted argument on this
subject. But, after the maturest reflection, it ad*
heres to the opinion that, whether the case be viewed
with reference to the time, intent, and meaning of the
calls, to analogy to decided cases, or convenience in
the voluntary adoption of a principle of the most ge-
neral application ; that laid down in the case of
Watts and Massie, for running the lines of the land
called for, cannot be deviated from. So far, there-
fore, as Massie himself, and his privies in estate,
are concerned, Watts is now entitled to the full bene-
fit of that decision.
Rate in Equity But there are various other defendants, and seve-

as to who are

SSeMhSrP&r ra* gr0Unc^s °.f defence assumed in this case, which
Sf^?e to are unaffected by the decision referred to.

this<

It is contended, in the first place, that there is a
radical defect of parties. That the representatives

OP THE UNITED STATES. 5Q&

of O'Neal and Scott, through whom the complainant mi.
claims, and those of Powell and Thomas Massie, V-Cs^w

7 Kerr

supposed to be hostile to his interests, ought to have v.
been made parties.

On this point there may be given one general
answer. No one need be made a party complainant
in whom there exists no interest, and no one party
defendant from whom nothing is demanded. Watts
rests his case upon the averment that all the interests
once vested in O'Neal and the Scots, now centre in
himself, and, provided he can recover the land now
in possession of those actually made defendants, he
is. contented afterwards to meet the just claims of
any others who are not made defendants. No rights
will be affected by his recovery, but those of the ac-
tual defendants, and those claiming through them. <
As to the supposed interference of the lines ordered
to be surveyed, with those of Thomas Massie, or
Powell, the former is merely hypothetical by way of
reference, or imaginary ; and the latter is only as-
serted on the ground that Massie had acquired all
the interest in Powell's survey that Powell ever had.
There was therefore nothing to demand of Powell,
as the case is exhibited by the record. It must be
subject to these modifications, that the obiter dictum
of the Court, in the case of Simms and Guthrie, is
to be understood.

It is next contended, in behalf of Kerr, and several Principle »p-
other defendants, that they claim through purchasers kj^jjj**
who were bona fide purchasers without notice, for a ShcSy£&f
valuable consideration. And at first view it would toU,i,cl,e-
seem, that the principles so often applied to the re-

560 CASES IN THE SUPREME COURT

1821. lief of innocent purchasers, are applicable to the case
of these defendants, wherever the facts sustain the
defence. But it will not do at this day, to apply
this principle to the case of purchasers of military
land-warrants, derived under the laws of Virginia.
In all the Courts in which such cases have come
under review, the purchasers have been considered
as affected by the record notice of the entry, and
also of the survey, such as it legally ought to be
made, as incident to, or bound up in the entry. It
is altogether a system sui generis, and subsequent
purchasers are considered as acquiring the interest #f
the entror, and not necessarily that of the State. So
that purchasers under conflicting entries are consi-
dered as purchasing under distinct rights, in which
case the principle here contended for does not apply ;
since the ignorance of a purchaser of a defective ti-
tle, cannot make that title good, as against an inde-
pendent and better right. These principles may safely
be laid hold of, to support a doctrine which, however
severe occasionally in its operation, was perhaps in-
dispensable to the protection of the interests acquired
under military land-warrants, when we take into
consideration the facility with which such interests
might otherwise, in all cases, have been defeated by
early transfers*
<iJreSfho™fe!r It is further contended, that the defendants are
^pidotcJT. not bound by the decree in the case of Watts and
Massie, because neither parties, nor privies, nor pen-
dente lite purchasers.

That those who come not into this Court, in any
one of those characters, are not subject to the direct

OF THE UNITED STATES. 561

and binding efficacy of an adjudication, is utiques* i**i
tionable. But it is not rety material as to the prin-
cipal question in this case, Whether the parties are to
be affected by the former adjudication directly, of by
the declared adherence of this Court to the doctrines
established in that case. The consequence to the
parties on the merits of the cade is the same.

But in one view it is material, and that is with re-
gard to the prodf of the exhibits, through which
Watts, the complainant, deduces his title through the
Scots from O'Neal. As Massie, in the former case,
(the record of which is made a proof of this,) acqui-
esced in this deduction of Watts' title, we are of opi-
nion that it is, as to him and his privies in estate, a
point conceded. As to parties and privies, the prin-
ciple cannot be contested ; a$d as to pendente lite
purchasers, it is not necessary to determine the ques-
tion, since the only defendants who have appealed
from the decision below, to wit, Kerr, the Kirkpa-
tricks, Doolittle, and the Johnsons, claim under pur-
chases made long anterior to this scrip, in Kentucky.

.Those defendants certainly were entitled to a ple-
nary defence, and where they have, by their answers,
put the complainant upon proof of his allegations, as
to his deduction of title, the question arises, whether
it appears from the record that the deduction of title
'was legally proved.

There can be no doubt that this question passed
sub silentio in the Court below, but it does not ap-
pear from any thing on the record, that the point
was waived ; and we are not at liberty to look be-

Vol. VI. 71

Watte.

J0£ CASS* IN THE SUPREME COURT

INK yood the record for the evidence on which the de-
'^y^"' (taction of title was sustained.

* Although we entertain no doebt, that exhibit*

may, on the trial, be proved by parol testimony, yet
a note on the minutes, or on the exhibit, became in-
dispensable to transmit the fact to this Court ; and
as the case furnishes no such memorandum, we must
consider the assignments through which Watts de-
rived his title from O'Neal, as not having been es-
tablished by evidence. Such was the decision of
this Court in the case of Drummtnd v. Mi Gruder*

But Kerr is the only one of these appellants wke
has expressly put the complainant on proof of his
title. The rest of the appellants having passed ovct
this subject without any notice in their answer, the
question is, whether they waived their right to call
for evidence to prove these exhibits. We are of
opinion they have not ; and that the complainant is
always bound to prove his title* unless it be admitted
by the answer.

There are two principles of a more general nature,
of which all the appellants claim the benefit, and
which,, as the cause must go back, will require con-
sideration.

It is contended, that Nathaniel Massie was the
acknowledged agent of both O'Neal and Watts, and
that the complainant is precluded by his acts done in
that capacity. This argument is resorted to, as well
to fasten on Watts the survey made in his behalf
above the town of Chilicothe, as a relinquishment
of all claim to a location at the place now contend-
ed for in his behalf. But in neither of these views

OP TK UNITED STATED $63

can this Court apply this principle in favour of the mi.
cfefendaats; for, it follows from the principles esta-
blished for surveying O'Neal's entry, that the survey
made by Masste on O'Neal's entry, was illegal and
void ; and, certainly, when employed ia locating the
entries made in favour of Powell and himself, Massto
was not acting as the agent of O'Neal or Watts, but
as the agent of Powell, or, in fact, in his own be*
half. The survey, on which this argument rests*
was at best bat partial ; and it is conclusive against
it to observe, that the powers of Massie, as ageat of
Watts, were limited to the entry and mechanical acts
of the survey. The recording of that survey, and
all those solemn acts which give it legal validity,' it
does not appear that his powers extended to. Watts
sever recognised that survey, or assumed the obliga-
tory effects of it by any act of his own, and in fact,
in the event, (though not a material circumstance to
the result we come to,) it has since been ascertained
that k was not only made off Watts's entry, but on
land appropriated by another.

But it has been contended, also, that ail these sar- sump under
veys actually made on the military land warrants of land ™™nu

of Virginia

Virginia, derive the authenticity and force of judicial have not the di
acts, or of acts done by the general agents of the
continental officers respectively, from the superin-
tending and controlling powers vested in the deputa-
tions of officers, as the law denominates them, ap-
pointed by themselves to superintend the appro-
priation of the military reserves set apart for their
use. It is to be presumed, it is contended, that every
survey made by their authorized surveyors, was

564 CASES IN THE SUPREME COURT

1821. made under their control and direction. Thia Court
does not feel itself authorized to raise any such pre-
sumption. The powers actually exercised by those
commissioners, were limited to very few objects.
The surveying of entries at a very early period, he*
came a judicial subject. And the commissioners,
or rather deputations of officers, never assumed a
right to adjust the conflicting interests of individuals
upon the locating and surveying of such entries*
To appoint surveyors, to superintend and direct the
drawing of lots for precedence among the locators,
to direct the survey for officers and soldiers not pre-
sent or not represented, and to determine when the
gdod lands between the Cumberland and Tennessee
should be exhausted, comprehended all the powers
with which they were vested. As individual agents
capable of binding their principals, they appear in
one case, and only one, which was, when the officer
or soldier was absent and unrepresented. And as to
judicial powers, there is no provision of the act that
vests them with a semblance of such a power, unless
it be to judge of the right of priority as determined
by lot. But here, also, they appear more properly
in the character of ministerial officers discharging a
duty without the least latitude of judgment or dis-
cretion. Their powers in nothing resemble that of
the Courts of Commissioners established through the
back counties of Virginia. As to the subjects sub-
mitted to the boards so constituted, (of which mili-
tary warrants were no part,) those boards were ex-
pressly vested with judicial power. But the powers
of the deputations of officers were purely ministerial.

OF THE UNITED STATES. £65

And if it be admitted, that they might hare exercised teti.
the power of defining the principles ob which surveys
shook! bare been made, yet it is certainly incumbent
on him who would avail himself of that power, to
show that it was exercised, and to bring himself with-
in the rules prescribed by their authority.

Decree reversed as. to these appellants, and sent
back for further proceedings.

(Chancery.)

Leeds et al. v. The Marine Insurance
Company.

Application of tbe law of set-off and lien in Equity, under peculiar
circumstances.

Appeal from the Circuit Court for the District of
Columbia.

This was a suit in Equity, commenced in the
Court below by the respondents against the appel-
lants, in which the injunction obtained on the filing
of the bill was made perpetual. The facts are stated
in the opinion of the Court.

This cause was argued by Mr. Swann and Mr. March m.
Jones for the appellant, and by the Attorney- General
and Mr. Lee for the respondents.

666 CASES IN THE SUPREME COURT

mi. Mr. Justice JoHwaow delivered the opinion tf Aft

Lead, to"**
v. This case involves a gneat many questions both of

Ibb. Co. law and feet, but we will consider it as it is affected

March la*, by those circumstances, concerning which there is ao

dispute.

Leeds and Stress being engaged in commercial
enterprizes, Straas employed Hodgson to effect insn-
ranee on the Sophia and her cargo. A note of Hodg-
son, with Patton and Dykes as endorsers, is taken
for the premium. Another adventure on the brig
Hope, grows out of the first, on the Sophia ; and the
same agent, at the request of the same principal, ef-
fects insurance upon this also, with the same Com-
pany. The Sophia arrives in safety, but though
one of the endorsers is unquestionably sufficient, the
premium note remains unpaid. The Hope is lost,
and Hodgson professedly suing for the use of Straas
and Leeds, has recovered judgment against the under-
writers for the amount of the policy. ' From this
amount the premium note connected with that policj
was discounted, but that growing out of the insu-
rance on the Sophia, was not pleaded, notwithstanding
the identity of the legal plaintiff in that action, with
the debtor to the company in the transaction on the
Sophia.

The note taken for the insurance on the Sophia,
is now set up against the policy on the Hope, in a
different form. This bill is filed to compel the par-
ties in interest, Hodgson, Leeds and Straas, to dis-
count it from the judgment against the underwriters*

The equity of this demand is now to be tested.

OF THE UNITED STATES. 46?

The right to the discount considered with refer- im.
ence to identity of parties, was clearly a legal one*

And had not the Company beea iajoioed in the ▼<
Chancery of Virginia, during the pendency of the i^ GoT
suit upon the policy, they must have lost all claim to
the interposition of this Court, by failing to assert
their legal rights in the Court to which they pro-
perly belonged. But the Chancery of Virginia
might have considered the Company in contempt,
had they set up in discount a claim then pending^
and theu injoined in the Courts of that State. And,
therefore, we may now be justified in considering
the legal rights of the Company, against the policy
on the Hope, as derived through the premium dote
on the Sophia, under all the advantages that it would
have possessed, if pleaded as a set-off to the action
at law.

The bill, it is true, does not explicitly rest on this,
as the ground of its equity, but the facts are so set
out, and may be properly considered as making up
the case-

What was the state of right as it stood at law ?
Hodgson, as holder of the policy which he had ef-
fected, was, to the amount of his commissions, ad-
vances, or even liability iucurred in the transaction,
a privileged creditor, and that possession could not be
violated until he was indemnified or compensated.
If he be considered as the legal plaintiff in the action
on the policy, and, in fact, the legal owner of the
money recovered for the use of others, the law would
not suffer him to be deprived by transactions between
Straas and Leeds, to which h&qeref assented, of any

568 CASE8 W THE SUPREME COURT

mi. legal advantage derived from possession of that
^^^ money.

v. Suppose, to come up to the very case before as, the

Ti^Mttfiii* Company jjgj pieaded this note ad a set-off to the
suit on the policy, and Hodgson, the legal plaintiff,
had tendered a replication admitting the plea, in what
manner could the Company or himself have been
deprived of the benefit of its being thus disposed of?
That Hodgson was entitled to indemnity from Straas
at least, against this note, is unquestionable ; and he
would, as against Straas, have, under any circum-
stances, been entitled to retain a sufficient sum to
cover his liability. Then how could he, by the act
of Straas, either by assigning away his interest, or
by impeding by an injunction, that act in a third
person, which would have secured him in its conse-
quences, be deprived of the benefit of compelling the
admission of this set-off? The case in equity, as it
now stands, is precisely that which would have arisen
at law, upon the state of things supposed. For,
Hodgson, in his answer to this bill, admits this set-off,
and solicits the Court to enforce the admission of it
by Leeds, who in the right of Straas, is thus endea-
vouring to deprive him of his legal right to indemnity.
The case in no part contests the reality of this state
of facts, but the defendant, Leeds, in every part of it,
rests his defence upon the ground, that Straas has
succeeded in defeating the claims of Hodgson, and
' deprived the Company of the benefit incident to the

assertion of those claims ; first, by tying the hands
of the Company in a Court of Chancery, in a suit
in which he finally failed, and then by a transfer of a

OF THE UNITED STATES. 5ft)

chattel interest, the evidence of which, or the con- isai,
tract it$eif, was in the hands of Hodgson, and legally

subject to his control, until the money due on it was ▼•

, , . A The Marin*

reduced into possession. jbi, go.

It is true, that had this set-off been pleaded tit
law to Hodgson's suit upon the policy, aad the
equitable interest of others been set up against such
plea, or against Hodgson's admission of it, the Court
of Common Pleas must, according to modern prac-
tice, have heard the parties on affidavit, before it de-
termined to admit Hodgson's replication on its files.
But, supposing the case to have been presented on
affidavit, such as it now appears to this Court, that
Court would not have taken upon itself to deprive
the legal plaintiff of a legal advantage, in favour of
an assignee of a chose in action, where the equity of
the case was so strong in the favour of the legal
plaintiff. »

It is obvious, that the principal difficulties in this
case arise from the inverted and peculiar state of the ,
parties. Hodgson, (and with him his endorser,) who
is really the party to be relieved, appears in the cha-
racter of defendant, and the question presents itself,
why should the underwriters be at liberty to quit
their hold upon their note for indemnity, and come
upon the judgment holder on the policy for satisfac-
tion in the first instance ?

But to this several answers present themselves*

Why, if the underwriters bad several remedies,
should they, by the act of the opposite party, be de-
prived of any one of them ? Why, if they might

Vol. VI. 72

S70 CASES IN THE SUPREME COURT

ltu. legally have availed themselves of their remedy by

^^r^ discount, should they now be deprived of it because

^ they were prevented, unconscientious^ by their an-

TLMC?e tagonist, from asserting it in its proper place ? And

why, if they can in this way certainly save their

money, should they be put to the risk and labour of

prosecuting a recovery upon their note ?

But the case affords another answer of a more ge-
neral nature. Notwithstanding Hodgson's insolven-
cy, his claims upon this policy remain unpaid, if it
be only for the purpose of shielding his endorsers ;
and notwithstanding his appearance here as a co-
defendant, it is obvious, that dismissing this bill
must give rise to new suits between the persons lia-
ble to pay this note, and the assignee of Straas' in-
terest under the policy. This consideration affords
** the additional reason, that entertaining this suit ter-
# minates litigation, and the reverse would be the con-
sequence of dismissing this bill. If having been de-
prived by* his antagonist of his remedy at law, is a
sufficient ground for entertaining the suit of the com-
plainant, it is certainly no objection to it, that relief
is at the same time extended to one who, though no-
minally a co-defendant, is essentially a co-plaintiff,
and might have been made such.
' Had he been made such, the case would have pre-
sented fewer difficulties. If Straas himself could
not have demanded of Hodgson this policy, or the
money recovered on it, without securing him against
the premium note, neither can his assignee. Even
the Courts of law have recognised the lien of a bro-

OF THE UNITED STATES. 671

ker on a chose in action for a general balance of i&u
accouftt, and much more so ought a Court of equity >£^/ .
in the application of a principle so peculiarly its own, r.
as that which gives effect to a transfer by assignment in*. Co.
of a chose in action not in its nature negotiable.

The parties in this case sue only to be restored to
their legal advantages ; as that cannot be done spe-
cifically, they certainly have a claim on this Court to
secure to them all the beneficial consequences that
would have resulted from them. And as Straas' in-
terest in the Hope would have been amply sufficient
to enable Hodgson to pay this premium note, had the
money on the policy come into his hands, there is
nothing unreasonable in making it, in the hands of
the officer of this Court, subject to be disposed of in
the same manner.

Let it be distinctly understood, that the Court
does not, in this decision, countenance the idea, that
a separate debt may be set off to a joint action. The
debtor and creditor at law are the same. And upon
Hodgson's reducing the money inte'possession, the
same identity of parties would exist. For Leeds
and Straas do not appear in the case at all, in the
relation of copartners in trade, but Leeds himself re-
presents them as holding distinct interests, although
in the same subject Leeds' defence rests altogether
on Straas' assignment, not on their blended rights ;
nor does he pretend to ignorance of the off-set now
contended for, when he took the assignment, but
only, observes, with a view, it is presumed, to show
he had no reason to believe it to be a subsisting debt,

572 CASES IN THE SUPREME COURT

im. that it was at that time enjoined before the Chan-

Bank Straas to support a right in bis assignee.

Hyde.

Decree affirmed*

(Promissory N0TR8.)

The Union Bank v. Hyde.

A protest of an inland bill or promissory note is not necessary, nor is
it evidence of the facts stated in it.

The following undertaking of the endorser of a promissory note, " I
do request that hereafter any notes that may fall due in the Union
Bank, in which I am, or may be endorser, sbajl not be protested, as
I will consider myself bound in the same manner as if the said notes
had been or should be legally protested," held to be ambiguous as
to whether it amounted to a waiver of demand and notice ; and parol
proof admitted to show that it was the understanding of the parties
that the demand aiy} notice required by law to charge the endorser,
should be dispensed with.

Error to the Circuit Court for the District of
Columbia.

March 14/k This cause was argued by Mr. Jones} for the
plaintiff in error, and by Mr. Swann and Mr. Key
for the defendant in error.

March lots. Mr. Justice Johnson delivered the opinion of the
Court.
This cause turns upon the construction of a writ-

OF THE UNITED STATES. 57$

ten instrument, in these words : " I do request that mi.
hereafter any notes that may fall due in the Union
Bank, on which I am, or may be endorser, shall not
be protested, as I will consider myself bound, in the
same manner, as if the said notes had been, or should
be legally protested.

(Signed) Thomas Hyde."

Two constructions have been contended for : the
one, literal^ formal, vernacular ; the other, resting on
the spirit and meaning, as a mercantile and bank
transaction.

. The former has been sustained in the Court be-
low, and the correctness of that opinion is now to
be examined.

The defendant, it appears, became endorser to
one Foyles, and the note was discounted in the
Union Bank : on its falling due, it is admitted that
no demand was made on the drawer, or notice given
to the endorser.

The case presents the right of the plaintiffs under
two aspects: 1st. Upon the just construction of
the written instrument. 2d. The practical exposi-
tion of it by the defendant himself ; and it might also
have presented a third : the specific waiver of de-
mand and notice on the note in suit. By some assu-
med analogy, or mistaken notions of law, this prac-
tice of protesting inland bills, has now become very
generally prevalent ; and since the inundation of the
country with bank transactions, and the general re-
sort to this mode of exposing the breaches of punc-
tuality which occur upon notes, a solemnity, co-

574 CASES IN THE SUPREME COURT

1821. gency, and legal effect, have been given to suck
protests in public opinion, which certainly has no
foundation in the law-merchant The nullity of a
protest on the legal obligations of the parties to an
inland bill, is tested by the consideration, that inde-
pendently of statutory provision, (if any exists any
where,) or conventional understanding, the protest on
an inland bill is no evidence in a Court of justice of
either of the incidents which convert the conditional
undertaking of an endorser, into an absolute assump-
tion.

The protest* belongs altogether to foreign mercan-
tile transactions, upon which, on the contrary, it is an
indispensable incident to making a drawer of a bill,
or endorser of a note, liable. On foreign bills* it is
the evidence of demand, and an indispensable step
towards the legal notice of non-payment, in conse-
quence of which the undertaking of the drawer or
endorser becomes absolute. Hence, as to foreign
transactions, it is justly predicated of a protest, that
it has a legal or binding effect.

But the writing under consideration has reference,
exclusively, to inland bills, and as to them, the pro-
test has no legal or binding effect. The endorser
became liable, only on demand and notice, and of
these facts the protest is no evidence. How then shall
the waiver of the protest be adjudged a waiver of de-
mand and notice, or in effect convert his conditional
into an absolute undertaking ?

Had the defendant omitted one word from his un-
dertaking, it would have been difficult to maintain an
affirmative answer to this proposition. But what

OP THE UNITED STATES* 576

are we to understand him to intend, when he says, 1821.
" I will consider myself bound in the same manner
as if said notes had been, or should be legally pro-
tested ?" Except as to foreign bills, a protest has no
legal binding effect, and as to them, it is evidence of
demand, and incident to legal notice. It either then
had this meaning, or it had none.

This reasoning, it may be said, goes no farther
than toa waiver of the demand, but what effect is to
be given to the word bound ? It must be to pay the
debt, or it means nothing. But to cast on the endor-
ser of a foreign hill ap obligation to take it up, pro-
test alone is not sufficient ; he is still entitled to a rea-
sonable notice ip addition to the technical notice
communicated by the protest. To bind him to pay
the debt, all these incidents were indispensable, and
-may, therefore, be well supposed to have been in con-
templation of the parties, when entering into this
contract.

It is not unworthy of remark, that the writing un-
der consideration asks a boon of the plaintiff, for
whirh it tenders a consideration It requests to be
exempted from an expense, exposure, or mortifica-
tion, on the one hand ; and on the other, what is ten-
dered in return ? The intended object and conceived
effect of the protest on the one hand, is to convert his
undertaking into an unconditional assumption, and
the natural return is to make his undertaking at
once absolute, as the effectual means of obtaining
the benefit solicited.

If this course of reasoning should not be held con-
clusive, it would at least be sufficient to prove the

576 CASES IN THE SUPREME COURT

iasi. language of the undertaking equivocal ; and that the
^T^^ sense in which the parties used the words in which

The Union * ,

Bank they express themselves, may fairly be sought in the
Hydt. practical exposition furnished by their own conduct,
or the conventional use of language established by
their own customs or received opinions.

On this point the evidence proves, that, by the
understanding of both parties, this writing did dis-
pense with demand and refusal, that the companion
the one hand, discontinued their practice of puttiag
the notes endorsed by defendant in the usual course
for rendering his asumption absolute, and the defend-
ant, on the other, continued up to the last moment to
acquiesce in this practice, by renewing his endorse-
ments without ever requiring demand or notice.
This was an unequivocal acquiescence in the seme
given by the Company to his undertaking, and he
cannot be permitted to lie by, and lull the Company
into a state of security, of which he might, at any
moment, avail himself, after making the most of the
credit thus acquired.

Judgment reversed, and venire facias de now
awarded.

OP THE UNITED STATES.

(Local Law.)

Clark et al. v. Graham.

A power to conrey lands mutt possess the same requisites, and ob*
serve the same solemnities, as are necessary in a deed directly con-
veying; the lands.

A title to lands can only be acquired and lost according to the laws of •
the State in which they are situate.

The laws of Ohio require all deeds of land to be executed in the pre*
sence of two witnesses, and a deed executed in the presence of one
witness only is void.

A parol exchange of lands, or parol evidebce, that a conveyance should
operate as an exchange, will not convey any estate or interest in
lands.

Mr. Justice Todd delivered the opinion of the jforduw.
Court in this cause, which was submitted without
argument.

This is an action of ejectment brought in the Cir-
cuit Court for the District of Ohio. At the trial, the
plaintiff proved a title sufficient in law, prima facie,
to maintain the action. The controversy turned al-
together upon the title set up by the defendants*
That title was as follows: A letter of attorney,
purporting to be executed by John Graham, bearing
date the 23d of September, 1805, authorizing Na-
thaniel Massie to sell all his estate, &c. in all his
lands in Ohio. This power was executed in the
presence of two witnesses in Richmond, in Virginia,
and was there acknowledged by Graham before a
notary public.

Vol. VI. 73

578 CASES IN THE SUPREME COURT

1821. Nathaniel Massie, by a deed dated the 7th day of

June, 1810, and executed by him in Ohio, in his
own right, as well as attorney to John Graham,
conveyed to one Jacob Smith, under whom the de-
fendants claimed the land in controversy. This
deed was executed in the presence of one witness
only, and was duly acknowledged and recorded in
the proper county in Ohio. The deed and letter of
attorney so executed and acknowledged, were offer-
ed in evidence by the defendants, and were rejected
by the Court, upon the ground, that they were not
sufficient to convey lands according to the laws of
Ohio. The defendants also offered in evidence a
deed from Jacob Smith and wife, to the said Graham,
dated the 7th of March, 1811, duly witnessed, ac-
knowledged, and recorded, conveying a certain tract
of land in Ohio, and offered farther to prove, that the
tract of land so conveyed was given in exchange for
and in consideration of the ' lands conveyed by the
deed first mentioned lo Smith. This evidence, also,
was rejected by the Court. A bill of exceptions was
taken to these proceedings by the defendants ; and
the jury found a verdict for the plaintiff, upon which
a judgment was entered for the plaintiff, and the
present writ of error is brought by the defendants to
revise that judgment.

The principal question before this Court, is, whe-
ther the deed so executed by Massie was sufficient
to convey lands by the laws of Ohio. If not, it was
properly rejected ; if otherwise, the judgment should
be reversed. Two objections have been taken to the

OF THE UNITED STATES. 579

execution of this deed ; first, that the power of at- mi.
torney was not duly acknowledged, as every deed is
required to be in Ohio in order to convey lands ;
and if so, then the subsequent conveyance is void,
for it is a general principle, that a power to convey
lands must possess the same requisites, and observe
the same solemnities, as are necessary in a deed di-
rectly conveying the lands. On this objection,
which is apparently well founded, it is unnecessary
to dwell, as another objection is fatal ; that is, the
deed of Massie was executed in the presence of one
witness only, whereas the law of Ohio requires all
deeds for land to be executed in the presence of too
witnesses. It is perfectly clear, that no title to lands
can be acquired or passed, unless according to the
laws of the State in which they are situate. The
act of Ohio regulating the conveyance of lands,
passed on the 14th of February, 1805, provides,
" that all deeds for the conveyance of lands, tene-
ments, and hereditaments, situate, lying, and being
within this State, shall be signed and sealed by the
grantor in the presence of two witnesses, who shall
subscribe the said deed or conveyance, attesting the
acknowledgment of the signing and sealing thereof;
and if executed within this State, shall be acknow-
ledged by the party or parties, or proven by the sub-
scribing witnesses, before a Judge of the Court of
Common Pleas, or a Justice of the Peace in any
county in this State." Although there are no nega-
tive words in this clause, declaring all deeds for the
conveyance of lands executed in any other manner to
be void ; yet this must be necessarily inferred from the

680

1881.

CASES IN THE SUPREME COURT

clause in the absence of all words indicating a dif-
ferent legislative intent, and in point of fact such is
understood to be the uniform construction of the act
in the Courts of Ohio. The deed, then, in this case,
not being executed according to the laws of the
State, the evidence was properly rejected by the
Circuit Court.

The remaining point, as to the rejection of the
evidence of the deed from Smith to Graham, and the
proof to show, that it was given in exchange for the
land in controversy, has not been much relied on in
this Court It is, indeed, too plain for argument,
that if a deed imperfectly executed would not con-
vey any estate or interest in the land, a parol ex-
change, or parol proof of an intention to convey the
same in exchange, cannot be permitted to have any
such effect.

Judgment affirmed, with costs.

(Loc*l Law.)

Preston's Heirs v. Bowmar.

It it a universal rule, that course and distance yield to natural and
ascertained objects.

But where these objects are wanting, and the course and distance
cannot be reconciled, there is no universal rule that obliges us to
prefer the one to the other.

Cases may exist in which the one or the other may be preferred ac-
cording to the circumstances.

In a case of doubtful construction, the claim of the party in actual
possession ought to be maintained, especially where it has been up-
held by the decisions of the State tribunals.

OP THE UNITED STATES.

581

Error to the Circuit Court of Kentucky.

This was an ejectment brought in the Court be*
low, in which the lessor of the plaintiff claimed title
under a patent, describing the survey as " beginning
at an ash in the middle of a line of Glenn's land,
and with it north 20 degrees, east 800 poles, crossing
three branches to a hoop wood and sugar tree corner
to Moffat's land, and with a line thereof north 70
degrees, west 100 poles, crossing the creek to a
sugar tree south 33 degrees, west 820 poles, cross-
ing three forks of the creek to two sugar trees, south
70 degrees, east 300 poles, to the beginning." The
question arising upon the construction of this patent,
is stated in the opinion of the Court.

1821.

This cause was argued by Mr. B. Hardin, for the *<** uw*.
plaintiff, and by Mr. Talbot, for the defendant.

Mr. Justice Story delivered the opinion of the March \m.
Court.

Whatever might be our opinion (and we wish to
be understood as expressing none) if the question in
this case were entirely new, it cannot be affirmed,
that there has been such a clear mistake of con-
struction, as that justice and law require us to de-
part from the decision of the local tribunals. The
question here is, whether the third and fourth lines
of this patent (following the order of the lines as
they are given in the patent) are to be continued
upon the courses called for by the patent until they
intersect, or whether the fourth line is to be extend-
ed from the beginning to the distance called for by

'582

CASES IN THE SUPREME COURT

1821.

the patent, and then the closing line is to be drawn, so
as to strike the termination of the second and fourth
lipes at the patent distances. In the former case, the
fourth line will be longer than the distance called
for by the patent ; in the latter, the third line will
vary from the course called for by the patent The
counsel have stated, that the question resolves itself
into this, whether the course shall yield to dis-
tance, or distance to the course. It may be laid
down as an universal rule, that course and distance
yield to natural and ascertained objects. But
where these are wanting, and the course and dis-
tance cannot be reconciled, there is no universal rule
that obliges us to prefer the one or the other. Cases
may exist in which the one or the other may be pre-
ferred upon a minute examination of all the circum-
stances. In the present case, whichever construction
is adopted, the plaintiffs will hold a larger portion of
land than their patent calls for. We must consider
that the construction of the patent is somewhat
doubtful. That it is susceptible of two construc-
tions, each of which has some reasons to support it.
If it be doubtful, it would seem reasonable not to
press the broadest construction against a party who
is now in actual possession under a perfectly good
legal title. That possession ought not to be ousted
without a clear title in the other party, especially
where it has been upheld by the State tribunals.
This very case, between the same parties, has been
already adjudicated in the Court of Appeals of Ken-
tucky ; and that Court, upon full deliberation, de-

OF THE UNITED STATES. 583

cided in favour of the . defendant/ It would be a w$i.
great mischief for the same title to be in perpetual
litigation from the conflict of opinion between the
Courts of the State and the federal Courts ; and we,
therefore, acquiesce in the opinion of the Court of
Appeals, upon the ground, that the point is one of
local law, has been fully considered in that Court,
and is a construction which cannot be pronounced
unreasonable, or founded in clear mistake*

Judgment affirmed*

a Preston's Heirs v. Bowmar, S Bibb. Rep. 493.

Construction of Statute.)

Otis y. Walter.

Under the Embargo Act of the 25th April, 1808, c. 170. pxvi.] if a res-
Bel, not actually arriving at her port of original destination, excites
an honest suspicion in the mind of the Collector, that her demand of
a permit to land the cargo was merely colourable, this is not a ter-
mination of the voyage so as to preclude the right of detention.

Under what circumstances the Collector has a right to land the cargo
of the vessel thus detained. . .

This cause was argued by the Attorney- General MmhWh.
for the plaintiff in error, and by Mr. Webster and
Mr. Wheaton for the defendant in error."

a They cited Otis v. Bacon, 7 Cranch, 596. Crowell v.
flf'Faddon, 8 Cranch, 98. Slocum v. Mayberry, 2 Wluat.
Rep. 11.

March mh.

584 CASES IN THE SUPREME COURT

1621. Mr* Justice Livingston delivered the opinion of

the Court.

This is an action of trover brought by the defend-
ant in error, against the plaintiff and others, in the
Court of Common Pleas, held at Boston, within and
for the county of Suffolk, to recover the value of
eighty-six barrels of flour, and sundry other arti-
cles, in which judgment was recovered against the
plaintiff in error, from which judgment there was an
appeal to the Supreme judicial Court, which is the
highest Court of law in the commonwealth of Mas-
sachusetts, in which judgment was rendered against
the plaintiffs in error, for the sum of #2,488 75 cents,
and costs of suit, and in favour of the other defend-
ants. On the judgment, the defendant below, Wil-
liam Otis, has prosecuted a writ of error to this
Court, under the 25th section of the Judiciary Act
of the United States ; and we are now to decide
whether there was any error in the direction given
by the judge before whom this action was tried, and
which appears on the bill of exceptions attached to
the record in this cause.

The property in question had been seized by Wil-
liam Otis, as Deputy Collector of the customs for
the port and district of Barnstable, in the common-
wealth of Massachusetts, under the 11th section of
an act in addition to the act, entitled, " An act lay-
ing an embargo on all ships and vessels in the ports
and harbours of the United States;" and the several
acts supplementary thereto, and for other purposes,
passed the 25th April, 1808. On the bill of excep-
tions, the following facts appear. Oq the part of the

OF THE UNITED STATES. 680

plaintiff, Ljnde Walter, it was proved, that the mi.
goods mentioned in the declaration were his pro-
perty ; that they were put on board of the sloop
Ten Sisters, at Ipswich, in Massachusetts, bound
for the port of Yarmouth ; that it was agreed or un-
derstood between Walter and Hallett, who was
master of the sloop, that the latter was to carry said
goods to Barnstable, or to a place called Bass river,
in Yarmouth, with orders to sell the same, provided
he could obtain a certain price fixed by Walter, other-
wise to deliver them to Freeman Baker, of Yar-
mouth ; that said sloop, on the 19th November,
1808, cleared out at Ipswich, to proceed to the port
of Yarmouth, as expressed in the clearance obtained
from the Collector at that place ; that said sloop pro-
ceeded round Cape Cod to Hyannis, in the town and
district of Barnstable, and the master applied to Wil-
liam Otis, a deputy Collector for that port and district,
for a permit to land the cargo, which he refused to give,
but ordered hhn not to discharge any thing from the
sloop, until he should have a permit so to do. That
in a day or two afterwards, Otis came on board the
sloop with four men, and seized sloop and cargo, and
putting a pilot and crew on board, he sent her to
Falmouth, in the district of Barnstable, where Otis
had the cargo discharged and stored, in, and under a
dwelling-house in Falmouth : the master forbidding
Otis to meddle with the sloop or cargo. The master
also exhibited to Otis his manifest, and swore to the
correctness of the same.

On the part of Otis, it was proved, that he was de-
puty Collector for Barnstable — that on the 29th No-

Vol. VI. 74

566 CASE& IN THE SUPREME COURT

i8ii. vember, 1808, he duly reported to the President of
the United States, the detention of this sloop and

Otis

v. her cai-go, under and by virtue of the act abovemen-
tioned, which detention was confirmed and approved
by the President, on the 8th of December, 1808.
That the sloop, when seized, lay at anchor about half
a mile from the shore or beach, which is in the town
and port of Barnstable, near the centre thereof, six
miles distant from Bass river, on which Freeman Ba-
ker's house and store are situated, and aSout five
miles from the harbour of Yarmouth. That Free-
man Baker's landing is situate above a quarter of a
mile from the mouth of Bass river, on said river, ia
the town of Yarmouth, about six miles and an half
by water, from where the sloop was seized, and lies
to the eastward of Point Gammon. Hyannis, where
the vessel was seized, is westward of Point Gam-
mon, and in the town of Barnstable. That the
sloop, when seized, had not arrived at the harbour of
Yarmouth, but was lying in the port or harbour of
Barnstable, about three miles from the harbour of
Yarmouth, which lies east north east from the port
of Barnstable, and the sloop on her way from Ips-
wich to the place where she was seized, passed the
place for which she was cleared* because the weather
would uot permit the master to get her either into
the harbours of Bass river, or Gage wharf, and be-
cause he lived near Hyannis, and wished to see his
family, and to lay his vessel in a safe place, and to
land certain articles of bedding, &c. from the vessel,
as it was his intention to strip the vessel when she
arrived at Yarmouth. After the master arrived in

OP THE UNITED STATES. 587

Hyannis Bay, it was his intention to land his cargo isti.
at Gage wharf, which is in the town of Yarmouth ;
about three rods distant from the line of Barnstable,
and about six miles and an half from the place where
the sloop was anchored when seized. Between Yar-
mouth harbour or Bass river harbour, and Hyannis,
or Barnstable harbour, where the vessel was seized,
is a long point of land, called Point Gammon, ex-*
tending several miles into the sea, and the distance
by the nearest course -of the ship-channel, or deep
water, from Bass river to Hyannis, is ten miles, and
in going from Ipswich to Hyannis. the sloop passed
Bass river harbour, or Yarmouth harbour and Point
Gammon. The cargo, when stored by the Collector,
was some of it in bad and perishable condition, and
was put in better order by coopering, &c. before be*
ing stored.

On this evidence, the jury were charged : that un-
der the clearance, the captain had a right to go to
any part of Yarmouth with his vessel, notwithstand-
ing it might have been the intention of him and the
owner, that she should go to Bass fircr in that town :
that if she bad been carried beyond Bass river by
force of the winds, and contrary to the master's in-
tention, and came to anchor in Hyannis Bay, with-
in the limits of the town of Barnstable, for that
cause, still, if the jury believed that, in consequence
of this state of things, the captain had concluded to
give up his intention of going to Bass river, and in
lieu thereof, to carry his vessel to Gage's wharf,
which is within the town of Yarmouth, on the same
side erf Point Gammon as Barnstable, and to all sub-

Otis
Walter.

£gg CASES IN THE SUPREME COURT

1821. stantial purposes, the same harbour ; and for this
purpose, was waiting only for a proper opportunity Co
take the vessel into that wharf, they might justly and
fairly determine that the voyage was terminated at
the time Otis took possession of the vessel.

Whether this part of the charge were correct, wHi
depend on the true construction of the 1 1th section
of the act of Congress, under which this seizure was
made, and which has already been referred to. Its
language is, " that the Collectors of the customs
be, and they are hereby respectively authorized to
detain any vessel ostensibly bound with a cargo to
some other port of the United States, whenever, m
their opinion, the intention is to violate or evade aoj
of the provisions of the acts laying an embargo, until
the decision of the President of the United States be
had thereupon."

Of the ostensible destination of the Ten Sisters,
at the time of her leaving Ipswich, there can be no
doubt. This, from the manifest and clearance, was
Yarmouth or Bass river. What better evidence,
then, could Otis have of this fact, than that which
he acquired from an inspection of these papers* If,
then, such was her ostensible destination at the time
of her sailing from Ipswich, and she had not arrived
at Yarmouth or Bass river at the time of seizure, it
would seem, that he would have a right, uuder the
provisions of this section, to detain the Ten Sisters,
if in his opinion an intention existed of violating the
embargo laws. It is not pretended, that this was
not his real opinion, or that, for an honest exercise
of such an opinion, he ought to be punished. There

Walter,

OP THE UNITED STATES. 589

is a confidence placed in the discretion of a Collector, 1*21.
in eases of this kind, which may be abused, but s-^)pfc'
which ought to protect him from loss when there is t.
no reason to believe, as there is not in this case, that
the detention proceeded from sinister motives, and
not from a conscientious desire of discharging his
duty. To subject a Collector, or any public officer,
to such an imputation, when acting under a discre-
tion thus reposed in him, the circumstances ought to
he such as almost to preclude the possibility of his
having acted but from some unworthy or dishonour-
able motive. The Court is much mistaken, if the
facts in this case are such as to lead to this conclu-
sion. The only question, then, is, whether the cir-
cumstances were such at the time of seizure, as to
confer on the Collector, or bis deputy, the right of
acting under the influence of an opinion, that such
illegal intention existed. Bqt it is supposed, that
the Ten Sisters had substantially terminated her
voyage, or that being driven beyond Point Gammon
into Hyannis Bay, she might lawfully terminate her
voyage, and land her cargo at Barnstable* If a per*
mit had been obtained to land her cargo at Barnsta-
ble, this argument would be entitled to much con-
sideration ; but when the master of a vessel, bound
by her papers to one port, applies for a permit to
land her cargo at another place, he cannot, in that
way, deprive the Collector of considering the vessel
as still in itinere, to her original port of destination,
and if he suspects such application to be a mere pre-
tence to conceal some illicit object, he has as good a
right to make the seizure as if a permit had not been

590 CASES IN THE SUPREME COURT

iat i; applied for. In the case of OHs v. Bacon, 7 Cranch9
S*^*^ 596. a permit to- land the cargo had been granted
▼• before any seizure took place, which was consider-
ed by the Court as evidence of the termination of
the. voyage, and that she could not, thereafter, be
considered as actually or ostensibly bound to any
other port. Nor can the exhibition of the manifest,
or swearing to its contents, be considered as equiva-
lent to a permit to land the goods. It might, on the
contrary, furnish evidence, as it did here, of an os-
tensible destination from one port of the United
States to another, where she had not yet arrived, and
in which case the Collector had authority to act : nor
was he bound to believe, merely from that circum-
stance, or from the then situation of the vessel/ that
such destination was abandoned. On a former trial
of this cause, no clearance was produced, and the
only testimony on this subject came out on the ex-
amination of the master, who declared, that the ves-
sel was bound to Yarmouth or Barnstable. Upon
the whole, this Court is of opinion, that the learned
judge who tried the cause committed an error in
telling the jury that they might fairly and justly de-
termine the voyage was terminated at the time of
seizure, if they believed the captain had given up
his intention of going to Bass river, and had deter-
mined to land his cargo at Gage's wharf, which,
though within the boundary of Yarmouth, is in fact
in the harbour of Barnstable, and that he was wait-
ing only for a proper opportunity to take the vessel
into that wharf. Now, this was placing the ter-
mination of the voyage, not on the fact of its having

OP THE UNITED STATES. 591

actually ended, but on an intention of the master, of isn.
which it was impossible the Collector could know
any thing with certainty, who was to judge of his
right and duty to make the seizure only from the
papers of the vessel, and the situation in which she
was found, which is admitted to have been short of
her destined port But if a secret intention of the
master be permitted to be set up as a ground of de-
cision, and this, too, contrary to the written evidence
in the cause, on which alone a public officer can act
with safety, he would always be exposed to risks
which might deter him from acting altogether. The
jury, therefore, should have been left to decide from
the other evidence in the cause, independent of any
secret, or even declared, intention in the mind of the
master, whether the ostensible voyage was termina-
ted or not ; and it seems difficult to conceive how
their decision could have been otherwise than favour-
able to Otis. In this part of the charge, therefore,
the Court is of opinion, there is error.

Another part of the Court's instruction to the jury
is also complained of; it is, that in which the Chief
Justice remarks, that the Collector had no authority,
without the consent of the master, or person having
the care of the cargo, to unlade it from the vessel
and store it. It is not known what influence this
opinion had on the jury ; but in the unqualified terms
in which the Collector's right to unlade the cargo is
denied, this Court does not concur. We have al-
ready decided, that with the consent of the master,
or agent of the owner, the cargo may be landed, but
it was not intended to say, that in no other case

£92 CASES IN THE SUPREME COURT

i82i. could such landing and storing be justifiable. If it
appear that the Collector, during the detention of the
vessel, shall, bona fide, think it will tend to the secu-
rity and preservation of the property to unlade it, and
will do it at his own expense, it is not perceived why
he may not do so, but at the peril of such an act be-
ipg regarded, per sey as a conversion of the property.
At any rate, this consequence ought not to follow,
unless it shall appear that the property was lose or
injured in consequence of such landing. That not
appearing to have been the case here, it is not neces-
sary to say what effect such a circumstance could
have had in this suit Ail that it is intended to say
here, is, that a landing for the purposes, and under
the circumstances which appear on this record, is
not of necessity, or in itself, a conversion.

»
Judgment reversed, and a venire facias de novo

awarded.0 *

a Fide ante, vol. II. p. 18.

OF THE UNITED STATES. $93

mi.

(Local Law.) Gonler

The Com-

Goszler v. The Corporation of Georgetown. . »tionof

Georgetown.

The power given to the Corporation of Georgetown, by the act of Ma*
ryland, of November, 1797, c. 66. to graduate the street! of thai
City, ia a continuing power, and the Corporation may from time to
time alter the graduation so made.

-The ordinance of May, 1799, by which the Corporation of Georgetown
first exercised the power of graduating the streets, is not in the na-
ture of a compact, and may he altered by the Corporatioa.

This cause was argued by Mr. Key fox the ap-
pellant) and by Mr. Jones for the respondent. March im.

Mr. Chief Justice Marshall delivered the opi-
nion of the Coiirt, March 1*A.

This is an appeal from a decree of the Circuit
Court of the United States for the county of Wash-
ington, in the District of Columbia, on the following
case :

In the year 1797, the Legislature of Maryland,
among certain additional powers given to the Corpo-
ration of Georgetown, enacted, that they " shall have
full pQwer and authority to make such by-laws and
ordinances for the graduation and levelling of the
streets, lanes and alleys within the jurisdiction of
the same town, as they may judge necessary for the
benefit thereof." — Act of tfov, 1797, c. 66. s. vi.
p. 35.

In pursuance of this authority, the Corporation

Vol. VI. 75

5g4 CASUS IN THE SUPREME COURT

1821. passed an ordinance in May, 1799, for the gradua-

x-**v~*- tion of certain streets—the first section of which ap-

GTl6r points commissioners, and authorizes them " to make

^wtion0!? °" the level and graduation of the streets ;" and the se-

Georgetown. con(j js \n these words :

•< And be it ordained, that the said level and
graduation, when signed by the said commissionere
or a majority of them, and returned to the clerk of
this Corporation, shall be forever thereafter consi-
dered as the true graduation of the streets so gra-
duated, and be binding upon this Corporation, and
all other persons whatever, and be forever thereafter
regarded in making improvements upon said streets.*

The plaintiff in error owned lots upon one of
these streets, and made improvements thereon, ac-
cording to the graduation made and returned to the
clerk of the Corporation, under the directions of this
ordinance. In September, 1816, the corporation
passed another ordinance, directing the level and gra-
duation of this street to be altered ; and the commis-
sioners appointed, being about to cut down the
street by the plaintiff's house, were enjoined from
proceeding by a bill filed by the plaintiff against
them and the Corporation.

Upon the final hearing of this case, the Circuit
Court dismissed the bill, being of opinion that the
Corporation had the power asserted in their answer,
of altering the level and graduation of a street gra-
duated under their former ordinance of May, 1799,

The counsel for the appellant contends, that the
Circuit Court erred in dismissing his bill, because,

1st The power to graduate streets as given by

OF THE UNITED STATES. 685

the Legislature of Maryland, was not a continuing ift2i.
power, but was completely executed by the ordi- **££kr
nance of May, 1 799, and has never been renewed. v.

2d. The ordinance of May, 1799, is in the na- ration of
ture of a compact, and is unalterable. Georgetown.

1. The language of the act certainly does not imply
that the power it confers is exhausted in its first ex-
ercise. The power is not u to graduate and level
the streets," or " to make a by-law for the gradua-
tion and levelling of the streets ;" but " to make such
by-laws and ordinances for the graduation and level-
ling of the streets, &c. within the jurisdiction of the
same town, as they may judge necessary for the be-
nefit thereof."

The act seems to contemplate a continuance of
the power, and a repetition of the by-laws and or-
dinances, as the Corporation " may judge necessary
for the benefit of the town." It gives a power to le-
gislate on the subject, and to pass more than one by-
law and ordinance respecting it. Unless, then, there
be in the nature of the operation something which
forbids its repetition, the words of the act import no
such prohibition.

There can be no doubt that the power of gradua-
ting and levelling the streets ought not to be capri-
ciously exercised. Like all power, it is susceptible
of abuse. But it is trusted to the inhabitants them-
selves, who elect the corporate body, and who may
therefore be expected to consult the interests of the
town.

Although this power may be oppressively repeated,
the possession of it cannot be pronounced so impro-

Sd6 CASES IN TH£ SOPREMt COURT

1521. per or so dangerous, as to control essentially, tfc*
^iPC*' words which confer it. The graduation and level*

r. ling of the streets, is not, necessarily, a singte
^uSo^ tion- There may be circumstances to produce a ge-
Gaorgetoirii. nera] desire to vary the graduation, to bring the
Streets more nearly on a level than was contemplated
in the first ordinance : and, if this may occur, we
Cannot say that the legislature could not intend to
give this power of varying the graduation, when the
words they employ are adapted to the giving of it.

Two acts of Congress for amending the charter of
Georgetown have been relied on. That passed in
January, 1805, empowers the Corporation " to open
and extend, and regulate streets within the limits of
the said town, provided they make to the person or
persons who may be injured by silcb opening, exten-
sion, or regulation, just and adequate compensation!
to be sustained by the verdict of an impartial jury*
summoned," &c. " who shall proceed in like manner,
as has been usual in other cases, where private pro-
perty has been condemned for public use."

For the Corporation, it has been contended, that
the word " regulate" implies some operation on the
streets themselves, or is entirely senseless ; and if it
implies any such operation, it must comprehend
their graduation.

The objection made by counsel to this argument,
is, the improbability that the word " regulate," would
be substituted for " graduate," if it were used in the
same sense ; and the words directing the duty of the
jury. They are to " proceed in like manner, as has
been usual in other cases, where private property has

OP THE UNITED STATES. £97

been condemned for public use." The word " regu* mi.
late," then, it is said, is shown by this expression* to
he applicable only to those cases in which private
property is condemned to public use, which is not
done in graduating a stteet*

This construction is supposed to be strengthened
by the act of 1809, which again empowers the Cor-
poration " to lay out, open, extend, and regulate
streets, lanes and allies," but confines the use of the
jury for assessing damages to those sustained " by
reason of opening or extending any street, lane or
-alley."

The opinion that the original power continues
after its first exercise, renders it unnecessary to de-
cide on the extent which may and ought to be given
to the word u regulate."

2. The second point presents a question of some
difficulty. One object of the ordinance probably
was, to give as much validity to the graduation made
by the commissioners, as if it had been made under
the direct superintendance of the corporate body.
But it cannot be disguised, that a promise is held
forth to all who should build on the graduated
streets, that the graduation should be unalterable.
The Court, however, feels great difficulty in saying,
that this ordinance can operate as a perpetual re-
straint on the Corporation.

When a government enters into a contract, there is
no doubt of its power to bind itself to any extent net
prohibited by its constitution. A Corporation can
make such contracts only as are allowed by the acts
of incorporation. The power of this body to make

598 CASES IN THE SUPREME COURT

1831. a contract which should so operate as to bind its le-

M'Clnng

gislative capacities forever thereafter, and disable it

t.""6 from enacting a by-law, which the Legislature ena-

f^***- bles it to enact, may well be questioned. We rather

think that the Corporation cannot abridge its owa

legislative power.

Decree affirmed.

(Constitutional Law.)
M'CuJNG V. SlLLlMAN.

A State Court cannot issue a mandamus to an offider of the United

States.

Match i2tk. This cause was argued by Mr. Harper , for the
plaintiff in error, and by Mr. Doddridge, for the de-
fendant.

Manhim. Mv. Justice Johnson delivered the opinion of the
Court.

This case presents no ordinary group of legal
questions. They exhibit a striking specimen of the
involutions which ingenuity may cast about legal
rights, and an instance of the growing pretensions
+ of some of the State Courts over the exercise of the

powers of the general government
The plaintiff in error, who was also the plaintiff

OF THE UNITED STATES. 599

below, supposes himself entitled to a pre-emptive mi.
interest in a tract of land in the State of Ohio, and
claims of the register of the land office of the Uni-
ted States, the legal acts and documents upon which
such rights are initiated. That officer refuses, under
the idea, that the right is already legally vested in
another ; and that he possesses, himself, no power
over the subject in controversy. A mandamus is
then moved for in the Circuit Court of the United
States, and that Court decides, that Congress has
vested it with no such controlling power over the
acts of the ministerial officers in the given case.
The same application is then preferred to the State
Court for the county in which the subject in con-
troversy is situated. The State Court sustains its
own jurisdiction over the register of the land office,
but on a view of the merits of the claim, dismisses
the motion.

From both these decisions appeals are made to this
Court, in form of a writ of error.

In the case of M'Intire v. Wood? decided in this
Court, in 1813, the mandamus contended for was
intended to perfect the same claim, and in point of
feet the suit was between the same parties. The
influence of that decision on these cases, is resisted,
on the ground, that it did not appear in that case,
that the controversy was between parties who, under
the description of person, were entitled to maintain
suits in the Courts of the United States ; whereas,
the averments in the present cases show, that the
parties litigant are citizens of different States, and,

a 7 Cranch, 504.

40Q, CASES JN THE SUPREME COURT

ian« therefore, competent parties in the Circuit Court-
Bat we think it perfectly clear, from an examination
of the decision alluded to, that it was wholly unitt-
flueoced by any considerations drawn from the want
<tf personal attributes of the parties. The ease came
up on a division of opinion, and the single question
stated is, " whether that Court had power to issue
a writ of mandamus to the register of a land office
in Ohio, commanding him to issue a final 'certificate
of purchase to the plaintiff for certain lands in the
State ?»

Both the argument of counsel, and the opinion of
the Court, distinctly show, that the power to issu$
the mandamus in that case, was contended for as
incident to the judicial powers of the Untied States.
And the reply of the Court is, that though, argv-
mefUi gratia, it be admitted, that this controlling
power over its ministerial officers, would follow
from vesting in its Courts the whole judicial power
of the United States, the argument fails here, since
the legislature has only made a partial delegation of
its judicial powers to the Circuit Courts ; that if the
inference be admitted as far as the judicial power
of the Court actually extends, still, cases arising
under the laws of the United States, are not, per se,
among the cases comprised within the jurisdiction of
the Circuit Court, under the provisions of the 1 1th
section ; jurisdiction being in such cases reserved to
the Supreme Court, under the 26th section, by way
of appeal from the decisions of the State Courts.

There is, then, no just inference to be drawn from
the decision in the case of M'Intire v. Wood, in fa-

OF THE UNITED STATES. 60J

vour of a case in which the Circuit Courts of the im«
United States are vested with jurisdiction under the "JjT^f^
11th section. The idea is in opposition to the ex- t.
press words of the Court, in response to the question
stated, which are, " that the Circuit Court did not
possess the power to issue the mandamus moved
for."

It is now contended, that as the parties to this
controversy are competent to sue under the 11th
section, being citizens of different Stales, that this
is a case within the provisions of the 14th section,
and the Circuit Court was vested with power to
issue this writ, under the description of a " writ not
specially provided for by statute," but (< necessary
for the exercise of its jurisdiction," The case cer-
tainly does present one of those instances of eqttivo*
cal language, in which the proposition, though true
in the abstract, is in its application to the subject
glaringly incorrect. It cannot be denied, that the
exercise of this power is necessary to the exercise of
jurisdiction in the Court below ; but why is it neces-
sary ? Not because that Court possesses jurisdic-
tion, but because it does not possess it It must ex-
ercise this power, and compel the emanation of the
legal document, or the execution of the legal act by
the register of the land office, or the party cannot
sue.

The 14th section of the act under consideration,
could only have been intended to vest the power
now contended for, in cases where the jurisdiction
already exists, and not where it is to be courted or

Vol. VI. 70

Billiman.

602 CASES IN THE SUPREME COURT

1*21. acquired, by means of the writ proposed to be sued
^J^ out Such was the case brought up from Louisiana,
V. in which the judge refused to proceed to judgment,
by which act, the plaintiff must have lost his remedy
below, and this Court have been deprived of its ap-
pellate control, over the question of right*

The remaining questions bear a striking analogy
to that already disposed of.

The State Court having decided in favour of its
own jurisdiction over the register, the appellant, so
far, had nothing to complain of. It is only where a
State Court decides against the claim set up under
the laws of the United States, that appellate juris-
diction is given from the State decisions. But in the
next step of his progress, he was not equally fortu-
nate. The State Court rejected his application on
the merits of bis claim, and appear to have decided
that an entire section might be divided into fractions,
by the river Muskingum, in a legal sense. Of this
he now complains, and contends that the decision is
contrary to the laws of the United States.

From this state of facts, the following embarrass-
ment arises. The United States officer, the de-
fendant, can have no inducement to contest a juris*
diction that has given judgment in his favour : and
the plaintiff in error must sustain its jurisdiction, or
relinquish all claim to the relief sought for through
its agency. And thus this Court, with its eyes open
to the defect in the jurisdiction of the Court below,
is called upon to take cognizance of the merits of the
question, both parties being thus equally interested,
in sustaining the jurisdiction asserted by that Court

▼.

OP THE UNITED STATES. 603

Let the course which this Court ought to pursue, mm.
be tested by consequences. The alternative is to j£J£^
give judgment for or against the plaintiff. If it be
given for him, this Court must invoke that Court to
issue the writ demanded, or pursuing the alternative
given by the 26th section, it must itself proceed
to execute the judgment which that Court ought to
have given. Or, in other words, to issue the writ of
mandamus, in a case to which it is obvious that nei-
ther the jurisdiction of that Court, nor this, extends.

No argument can resist such an obvious deductio
in absurdum.

It is not the first time that this Court has encoun-
tered similar difficulties, in its advance to questions
brought up from other tribunals. It has avoided
them by deciding that it is not bpund to encounter
phantoms. The party who proposes to avail him*
self of a defective jurisdiction, has nothing to com-
plain of, if he is left to take the consequences. His
antagonist might have had cause to complain — he can
have none. And, notwithstanding express evidence
of the contrary, this Court feels itself sanctioned, in
referring the decision of the State Court, in this case,
to the ground on which it ought to have been made,
instead of that on which it appears to have been
made. The question before an appellate Court is,
was the judgment correct, not the ground on which
the judgment professes to proceed.

Whether a State Court generally possesses a power
to issue writs of mandamus, or what modifications of
its powers may be imposed on it, by the laws which
constitute it, it is correctly argued, that this Court

6<ty CASES IN THE SUPREME COURT

1821* cannot be called upon to decide. But when the ex-
ercise of that power is extended to officers commis-
sioned by the United States, it is immaterial under
what law that authority be asserted, the controlling
power of this Court may be asserted on the subject,,
under the description of an exemption claimed by
the officer over whom it is exercised.

It is not easy to conceive on what legal ground a
State tribunal can, in any instance, exercise the
power of issuing a mandamus to the register of a
land office. The United States have not thought
proper to delegate that power to their own Courts*
But when in the cases of Marbury v. Madison, and
that of MIntire v. Woody this Court decided against
the exercise of that power, the idea never presented
itself to any one, that it was not within the scope of
the judicial powers of the' United States, although
not vested by law, in the Courts of the general Go-
vernment. And no one will seriously contend, it is
presumed, that it is among the reserved powers of
the States, because not communicated by law to the
Courts of the United States ?

There is but one shadow of a ground on which such a
power can be contended for, which is, the general rights
Of legislation which the States possess over the soil
within their respective territories? It is not now neces-
sary toconsider that power, as to the soil reserved to the
United States, in the States respectively. The ques-
tion in This case is, as to the power of the State
Courts, over the officers of the general Government,
employed in disposing of that land, under the laws
passed for that purpose. And here it is obvious, that

OF THE UNITED STATES. 605

he is to be regarded either as an officer of that Go- mi.
vernroent, or as its private agent* In the one capa-
city or the other, his conduct can only be controlled
by the power that created him ; since, whatever
doubts have from time to time been suggested, as to
the supremacy of the United States, in its legislative,
judicial, or executive powers, no one has ever Con-
tested its supreme right to dispose of its own pro-
perty in its own way. .And when we find it with-
holding from its own Courts, the exercise of this
controlling power over its ministerial officers, em-
ployed in the appropriation of its lands, the infer-
ence clearly is, that all violations of private right,
resulting from the acts of such officers, should be the
subject of actions for damages, or to recover the spe-
cific property, (according to circumstances) in Courts
of competent jurisdiction. That is, that parties should
be referred to the ordinary mode of obtaining justice,
instead of resorting to the extraordinary and unpre-
cedented mode of trying such questions on a motion
for a mandamus.

Judgment. This cause came on to be heard, on
the transcript of the record of the Supreme Court of
the State of Ohio, for Muskingum county, and was
argued by counsel. On consideration whereof, it is
adjudged and ordered, that the judgment of the
said Supreme Court of the State of Ohio, be, and
the same is hereby affirmed, with costs ; it being the
opiuion of this Court, that the said Supreme Court
of the State of Ohio; had no authority to issue a
mandamus in this case*

CASES IN THE SUPREME COURT

The Mutual
Assurance (Local Law.)

Society

Faxon. THE MfJtUAL ASSURANCE SOCIETY V. FAXON Cl aL

Under the laws in relation to the Mutual Assurance Society of Vir-
ginia, property offered for insurance, on which the premium has
not been paid, and which is sold without notice, is not liable for the
premium in the bands of the vendee.

March wh. Mr. Justice Johnson delivered the opinion of the
Court

This case first came up on a difference of opinion
certified from the Circuit Court of Alexandria, but
the writ of error was dismissed, because that Court
could not, in law, or the nature of things, certify
such a difference to this Court

It has since passed to a final decree, and although
the sum on the record is small, a special permission
to appeal has been granted on cause shown ; it be-
ing a case affecting many others similarly situated.

The question is, whether property offered for in-
surance, ih which the premium has not been paid,
and which has been sold without notice, remains
liable for the premium in the hands of the vendee ?

The case of the Mutual Assurance Society v. Exe-
cutors of Watts, decided in February, 181 6^ in this
Court, is relied on as authority for maintaining the
affirmative.

It is to be regretted, that the case referred to had

a 1 Wheat. Rep. 279.

Faxon.

OP THE UNITED STATES. 607

not been more fully reported. As it is not preceded 1821.
by any statement of facts, abstracts of the history J^^T^
and laws of this society, or the arguments of coun- Assurance
sel, the insulated unexplained opinion of the Court, ™iJ

as it is printed, must be ever unintelligible to all de-
scriptions of readers, except those whose professional
duties lead them to the study of the novel and exten-
sive institution whose interests are involved in it

But there is enough exhibited, to show, that it
affords no precedent for the claim set up in this case.
It is true, that the Court occasionally uses the term
premium, when speaking of the quota ; but in every
instance it will be found to be used when reasoning
upon the quota as the purchase money, in part of the
right of the insured to compensation, which, by
analogy to other cases of insurance, is in that sense
denominated a premium.

But there exists no analogy under the laws of the
company between the liability of property insured
(or a premium and a quota.

The first is the sum paid down before the contract
is entered into ; the second, the occasional contribu-
tion exacted of individuals to make up the losses
from time to time sustained* The 6th section of the
act of December 22d, 1794, gives an express lien for
the quota, and takes no notice of the premium, but
as the rule for graduating the respective quotas. In
the case alluded to, it was decided, that the lien thus
created, had its origin in contract, although enforced
by statute, and continued a mortgage on the premises,
until vacated according to the provisions of the seve-
ral laws which regulated the company.

60ft CASES IN THE SUPREME COURT.

1821. But the very reasons upon which that decision

T^r^^'al was placed^ are fatal to the pretensions set up in

Assurance this.

v. There is no express Ken created in any of the

F"on' laws of the company, and there are no provisions in
any of those laws from which it could be inferred,
(if it were possible ever to infer a lien,) but those
which authorize a sale of land to satisfy the premium.
But a right to sell the land is completely satisfied by
subjecting it to such sale while in the hands of the
first holder, and there are two of the by-laws of the
company, which expressly negative every pretence
for carrying it any further. The first is the 8th sec-
tion, 4th article, of the act of January 29th, 1805,
which requires immediate payment of the premium
upon the acceptance of the declaration, and the se-
cond is, the 6th section of the 5th article, which de-
clares, that insurance shall not commence until the
premium be paid.

Decree affirmed.

APPENDIX

Vot. VI.

APPENDIX

NOTE Xo. I.

TO TBB CASE OP THE AMIABLE ISABELLA, ante, p. 1.

ArticU* oftheSpanuh trtaiy of 1795, rtftrrtd to in the argument
of the cau.

Art 15. It shall be lawful
for all and singular the subjects
of his Catholic Majesty, and the
citizens, people, and inhabi-
tants, of the said United States,
to sail with their ships, with all
manner of liberty and security,
no distinction being made who
are the proprietors of the mer-
chandises laden thereon, from
any port to the places of those
who now are, or hereafter shall
be, at enmity with his Catholic
Majesty or the United States,
It shall be likewise lawful for
the subjects and inhabitants
aforesaid, to sail with the ships
and merchandises aforemen-
tioned, and to trade with the
same liberty and security from
the places, ports, and havens,

Art* 15. Se permitiri & to-
dos y k cada uno de los subdi-
tos de S. M. Catolica, y I los
ciudadanos pueblos y habitan-
tes de dichos Estados, que
puedan navegar con sus em-
barcaciones con toda libertad
y seguridad sin que haya la
manor excepcion por este res-
peto, aunque los propietarios
de las mercaderias cargadas en
las referidas embarcaciones
▼engan del puerto que quie-
ran, y las traygan destinadas ft
qualquiera plaza de una po-
tencia actualmente enemigad
que lo sea despues, asi de S.
M. Catolica como de los Esta-
dos Unidos. Se permitiri
igualmente a los subditosy ha-
bitantes mencionados nayegar

APPENDIX.

of those who are enemies of
both, or either party, without
any opposition or disturbance
whatsoever, not only directly
from the places of the enemy
aforementioned, to neutral pla-
ces, but also from one place
belonging to an enemy, to an-
other place belonging to an
enemy, whether they be under
the jurisdiction of the same
prince or under several ; and
it is hereby stipulated, that
free ships shall also give free-
dom to goods, and that every
thing shall be deemed free and
exempt which shall be found
on board the ships belonging
to the subjects of either of the
contracting parties, although
the whole lading, or any part
thereof, should appertain to
the enemies of either ; con-
traband goods being always ex-
cepted. It is also agreed, that
the same liberty be extended
to persons who are on board a
free ship, so that, although
they be enemies to either par-
ty, they shall not be made pri-
soners or taken out of that free
ship, unless they are soldiers,
and in actual service of the
enemies.

con sus buques y mercaderias,
y frequentar con igual libertad
y seguridad las plazas y puer-
tos de las potencias enemiga*
de las partes contratantes, 6 de
una de ellas sin oposicion A
obstaculo, y de comerciar no
solo desde los puertos de dicho
enemigo a* un puerto neotro
directamente, si no tambien
desde uno enemigo & otro tal,
bien se encuentre baxo su ju-
risdicion, 6 baxo la de muchos ;
y se estipula tambien por el
presente tratado que los bu-
ques libres aseguraran igual-
mente la libertad de las mer-
'' caderias, y que se juzgaran
libres todos los efectos que se
hallasen & bordo de los buques
que parteneciesen & los sub-
ditos de una de las partes con-
tratantes, aun quando el carga-
mento por entero 6 parte de
el fuese de los enemigos de
una de las dos, bien entendido
sin embargo que el contraban-
do se exceptua siempre. Se
ha convenido asi mismo que la
propia libertad gozaran los
sugetos que pudiesen encon-
trarse I bordo del buque libre,
aun quando fuesen enemigos
de una de las dos partes con-
tratantes ; y por lo tanto no se
podra hacerlos prisioneros ni
separarlos de dichos buques ft
meoos que no tengan la qeali-

APPENDIX.

Art. 16. This liberty of na-
vigation and commerce shall
extend to all kinds of merchan-
dises, excepting those only
which are distinguished by the
name of contraband ; and un-
der this name of contraband,
or prohibited goods, shall be
comprehended, arms, great
guns, bombs with the fuses,
and the other things belonging
to them, cannon ball, gunpow-
der, match, pikes, swords,
lances, spears, halberds, mor-
tars, petards, grenades, salt-
petre, muskets, musket ball,
bucklers, helmets, breast-
plates, coats of mail, and the
like kinds of arms, proper for
arming soldiers ; musket rests,
belts, horses, with their furni-
ture, and all other warlike in-
struments whatever. These
merchandises which follow,
shall not be reckoned among
contraband or prohibited
goods ; that is to say : all
sorts of cloths, and all other
manufactures woven of any
wool, flax, silk, cotton, or any
other materials whatever ; all
kinds of wearing apparel, to-
gether with all species where-
of they are used to be made ;
gold and silver, as well coined

dad de militares,y esto hallan-
dose en aquella sazon emplea-
dos en el servicio del enemigo.
Art. 1 6. Esta libertad de na-
vegacion y de comercio debe
extenderse a toda especie de
mercaderias exceptuando solo
las que se coroprehenden baxo
el nombre de contrabando, 6
de mercaderias prohibidas,
quales son las annas, canones,
bombas con sus mechas, y de-
mas cosas pertenecientes & lo
mismo, balas, polvora, mechas,
picas, espadas, lanzas, dardos,
alabardas, morteros, petardos,
granadas, salitre, fusiles, balas,
escudos, casquetes, corazas,
cotas de malla, y otras armas
de esta especie propias para
armar I los soldados, porta-
mosquetes, bandoleras, cabal-
los con sus armas, y otros in-
strumentos de guerra sean los
que fueren. Pero los generos
y mercaderias que se nombra-
ran ahora, no se comprehen-
der&n entre los de contrabando
6 cosas prohibidas, a saber :
toda especie de panos y qua-
lesquiera otras telas de lana,
lino, seda, algodon, d otras
qualesquiera materias, toda es-
pecie de vestidos con las telas
de que se acostumbran hacer,
el oro y la plata labrada en
moneda 6* no, el estano, hierro,
laton, cobre, bronce, carbon,

APPENDIX.

us uncoined ; tin, iron, fatten,
copper, brass, coals ; as, also,
wheat, barley, and oats, and
any other kind of corn and
pulse ; tobacco, and likewise
all manner of spices, salted
aod smoked flesh, salted fish*
cheese, and butter, beer, oils,
wines, sugars, and all sorts of
salts : and, in general, all pro*
visions which serve for the
sustenance of life : further-
more, all kinds of cotton,
hemp, flax, tar, pitch, ropes,
cables, sails, sail cloths, an-
chors, and any parts of an-
chors, also ships' masts, planks,
and wood of all kind, and all
other things proper either for
building or repairing ships,
and all other goods whatever,
which have not been worked
into the form of any instru-
ment prepared for war, by
land or by sea, shall not be re-
puted contraband ; much less,
such as have been already
wrought and made up for any
other use ; all which shall be
wholly reckoned among free
goods : as likewise, all other
merchandises and things which
are not comprehended and
particularly mentioned in the
foregoing enumeration of con-
traband goods : so that they
may be transported and carri-
ed in the freest manner bj the

del mifitto modo que la cevada,
el trigo, la avena, y qualquiera
otro genero de legumbres.
£1 tabaco y toda la especieria,
came salada y ahumada, pes-
cado salado, queso y manteca,
cerbeza, aceytes, vinos, azu-
car, y toda especie de sal, y
en general todo genero de pro*
visiones que sirven para el
sustento de la vida. Ademas
toda especie de algodon, caSa-
mo, lino, alquitran* pez, cuer-
das, cables, velas, telas para
velas, ancoras, y partes de
que se componen. Mastiles,
tablas, maderas de todas espe-
cies, y qualesquiera otras co-
sas que sirvan para la con-
struccion y reparacion de loa
buques, y otras qualesquiera
materias que no tienen la for-
ma de un instrumento prepa-
rado para la guerra por tierra
6 por mar, no seran reputadaa
de contrabando, y menos las
que estan ya preparadas para
otros U808. Todas las coeas
que se acaban de nombrar de*
ben ser eomprehendidas enire
las mercaderias libres, 16 mis*
mo que todas las demas mar*
eaderias y efectos que no e*»
tan comprehendidoe y nombra»
dos expresamente en la eato»
meracion de lee generoe de
contrabando, de manera que
podran ser transportados y

APPENDIX.

subjects of both parties, even
to placet belonging to an ene-
my, such town* or places be*
log only excepted, as are at
that time besieged, blocked op,
or invested. And, except the
cases in which any ship of war,
or squadron, shall, in conse-
quence of storms or other ac-
cidents at sea, be under the
necessity of taking the cargo
of any trading vessel or ves-
sels, in which case they may
stop the said vessel or vessels,
and famish themselves with
necessaries, giving a receipt,
in order that the power to
whom the said ship of war be-
longs, may pay for the articles
so taken, according to the
price thereof, at the port to
which they may appear to
iiave been destined by the
ship's papers : and the two
contracting parties engage,
that the vessels shall not be
detained longer than may be
absolutely necessary for their
said ships to supply themselves
with necessaries. That they
will immediately pay the value
of the receipts, and indemnify
the proprietor for all losses
which he may have sustained
in consequence of such trans-
action.

Art. 17. To the end, that
all manner of dissentions and
quarrels may be avoided and

conducidos con la mayor liber-
tad por los subditos de las dos
partes contratantes a las plazas
enemigas, exceptuando sin em-
bargo las que se hallasen en la
actualidad sitiadas, bloqueadas,
6 embestidas, y los casos en
que algun buque de guerra 6
esquadra que por efecto de
averia, ft otras causas se balk
en necesidad de tomar los
efectos que conduzca el buque
6 buques de comercio, pues
en tal caso podra detenerlos
para aprovisionarse, y dar un
recibo para que la potencia
cuyo sea el buque que tome
los efectos los pague segun el
valor que tendrian en el puer-
to adonde se dirigiese el pro-
pietario, segun lo ' expresen
sus cartas de navegacion : ob-
ligandose las dos partes con-
tratantes & no detener los bu-
ques mas de lo que sea abso-
lutamente necesario para apro-
visionarse, pagar inmediata-
mente los recibos, y indemni-
zar todos los danos que sufra
el propietario 6 consequencia
de semejante suceso.

Art. 17. A fin de evitar en-
tre ambas partes toda especie
de disputas y quejas, se ha

APPENDIX.

^prevented on one side and the
other, it is agreed, that in case
either of the parties hereto,
should be engaged in war, the
ships and vessels belonging to
the subjects or people of the
other party, must be furnished
with sea letters or passports,
expressing the name, proper-
ty, and bulk of the ship, as
also the name and place of
habitation of the master or
commander of the said ship,
that it may appear thereby,
that the ship really and truly
belongs to the subjects of one
of the parties ; which passport
•hall be made out and granted
according to the form annexed
to this treaty. They shall
likewise be recalled every
year, that is, if the ship hap-
pens to return home within
the space of a year.

It is. likewise agreed, that
such ships being laden, are to
be provided, not only with
passports as abovementioned,
but also with certificates, con-
taining the several particulars
of the cargo, the place whence
the ship sailed, that so it may
be known whether any forbid-
den or contraband goods be on
board the same ; which certi-
ficates shall be made out by
the officers of the place
whence the ship sailed, in the
accustomed form ; and if any

convenido que en el caao> de
que una de las dos potencies
se hallase empenada en ana
guerra, los buques y basti-
mentos pertenecientes a los
subditos 6 pueblos de la otra,
deberan llevar consigo paten*
tes de mar 6 pasaportes qoe
expresen el nombre, la pro-
piedad, y el porte del buque,
como tambien el nombre j
morada de su dueno y coman-
dante de dicho buque, para
que de este modo conste que
pertenece real y verdadera-
mente & los subditos de una de
las dos partes contratantes ; j
que dichos pasaportes deberan
expedirse segun el modelo ad-
junto al presente tratado. To-
dos los anos deberan renovar*
se estos pasaportes en el caso
de que el buque buelra * su
pais en el espacio de un ano.

Igualmente se ha conveoido
en que los buques menciona-
dos arriba, si estuviesen car-
gados, deberan llevar no solo
los pasaportes sino tambien
certificados que contengan el
pormenor del cargamento, el
lugar de donde ha salido el
buque, y la declaracion de las
mercaderias de contrabando
que pudiesen hallarse a. bor-
do ; cuyos certificados deberan
expedirse en la forma acos-
tumbrada por los oficiales em*
pleados en el lugar de donde

APPENDIX.

slidl think it fit oradvt*
table to express in the said cer-
tificates the person to whom
the goods on board belong, he
may' freely do so? without
which requisites they may be
-sent to one of the ports of the
other contracting party, and
adjudged by the competent
tribunal, according to what is
above set forth, that all the
•circumstances of this omission
having been well examined,
they shall be adjudged to be
legal prizes, unless they shall
give legal satisfaction of their
property by testimony entirely
^equivalent.

Art 18. If the ships of the
said subjects, people, or inha-
bitants, of either of the parties,
-shall be met with, either sail-
ing along the coasts or on the
high seas, by any ahip of war
of the other, or by any priva-
teer, the said ship of war or
privateer, for the avoiding of
any disorder, shall remain out
of cannon shot, and may send
their boats aboard the mer-
chant ship, which they shall so
meet with, and may enter her
to the number of two or three
men only, to whom the master
or commander of such ship or
vessel sball exhibit his pass-
ports, concerning the property

Vol. VI.

el navio se hiciese a la vela, y
sisejuzgase util y prudente
expresar en dichos pasaportea
k persona propietaria de las
mercaderias se podra hacer
libremente, sin cuyos requisi-
tes sera oenducido a uno de los
puertos de la potencia respec-
tive y juzgado por el tribunal
competente, con arreglo a lo
arriba<dicho, para que exami-
nadas bien las oircunstancias
de su falta, sea condenado por
de buena presa si no satisfaci-
ese legalmente con los testi-
monies equivalents en un to*
do.

Art. 18. Qpando un buque
perteneciente a los dichos sub-
ditos, pueblos y habitantes de
una de las dos partes fuese en-
contrado navegando a lo largo
de la costa 6 en plena mar por
un buque de guerra de la otra
6 por un corsario, dicho buque
de guerra 6 corsario, a fin de
evitar todo desorden, se man-
tendri fuera del tiro de canon,
y p*dra enviar su chalupa a
bordo del buque mercante,
hacer entrar en el dos 6 tree
hombre8 a los qualesensehara
el patron 6 comandante del
buque su pasaportey demas
documentor, que deberan ser
couformes a lo preveaido en
B

APPENDIX.

of the ship, made out accord-
ing to the form inserted in this
present treaty, and the ship,
when she shall have showed
such passport, shall be free
and at liberty to pursue her
voyage, so as it shall not be
lawful to molest or give her
chase in any manner, or force
ber to quit her intended
course.

el presente tratado, y probata
la propiedad del buque ; J
despues de haber exhfbido ae-
mejante pasaporte y documen-
tos, se lee dejara seguir libre-
mente su viage, sin que les sea
licito el molestarle ni procurer
de modo alguno darle caza, Q
obligarle k dejar el rumbo que
seguia.

The treaty with Spain of 1819, contains ike following article :

Art. 12. The treaty of limits
and navigation, of 1795, re-
mains confirmed in all, and
each one of its articles, ex-
cepting the 2d, ad, 4th, 21st,
and the second clause of the
22d article, which, having
been altered by this treaty, or
having received their entire
execution, are no longer valid.

With respect to the 15th
article of the same treaty of
friendship, limits, and naviga-
tion, of 1795, in which it is
stipulated, that the flag shall
cover the property, the two
high contracting parties agree
that this shall be so understood
with respect to those powers
who recognize this principle ;
but if either of the two con-
tracting parties shall be at war
with a third party, and the
other neutral! the flag of the

Art. 1 2. El tratado de linu-
tes y navegacion de 1795,
queda cod firm ado en totos y
cada uno de sus articulos, ex-
cepto los articulos 2, 3, 4, 21,
y la segunda clausula del 22,
que habiendo sido alteradoa
por este tratado, 6 cumplidos
enteramente no pueden tener
valor alguno.

Con respecto al articulo 15
del mismo tratado de amistad,
limites y navegacion de 1795
en que se estipula, que la ban-
dera cubre la propiedad, ban
convenido las dos altas partes
contratantes en que esto se
entienda asi con respecto £
aquellas potencias que reco-
nozcan este principio ; pero
que, si una de las doe partes
contratantes estuviere en gu-
erra con una tercera, y la otm
neutral, la bandera de est*

APPENDIX. 11

neutral shall cover the pro- neutral cubriri la propiedadde

perty of enemies, whose go- los enemigos, cayo gobierno

remanent acknowledge this reconozca este principio, y no

principle, and not of others. de otros.

Articles of the treaty with Algiers of 1796, referred to in the
above case.

Art 3. The vessels of both nations shall pass each other
without any impediment or molestation ; and all goods, moneys,
or passengers, of whatsoever nation, that may be on board of
the vessels belonging to either party, shall be considered as
inviolable, and shall be allowed to pass unmolested.

Art. 4. All ships of war belonging to this regency, on meet-
ing with merchant vessels belonging to citizens of the United
States, shall be allowed to visit them with two persons only be-
side the rowers ; th^se two only permitted to go on board said
vessel, without obtaining express leave from the commander of
said vessel, who shall compare the passport, and immediately
permit said vessel to proceed on her voyage unmolested. All
ships of war belonging to the United States of North America,
on meeting with an Algerine cruiser, and shall have seen her
passport and certificate from the consul of the United States of
North America, resident in this regency, shall be permitted to
proceed on her cruise unmolested : no passport to be issued
to any ships but such as are absolutely the property of citizens
of the United States : and eighteen months shall be the term
allowed for furnishing the ships of the United States with pass-
ports.

» APPENDIX.

NOTE No. IL

TO THE' CASE OF Ttttt AMIABLE ISABELLA,

In some of the cases which were adjudged by the Council*
•f Prizes at Paris, daring the late European wars, several
questions occurred respecting the form and effect of passports*
analogous* to those which were discussed in the case of the
Isabella, in the text. Among the points, determined by thai
tribunal, in the case alluded tor were the following. (1.}
That a mere certificate that a ship was built at Stettin in a cer-
tain year, and was the property of Prussians, was not (properly
speaking) a passport. (2.) That the authority by which a
passport shall be issued is regulated by the law and usage of
the country where it is issued, — stad that it is unnecessary that
H should be granted or signed by the supreme magistrate of
the State, unless so required by the local usage. (3.) That a
passport is not valid for more than one voyage, without being
renewed. (4.) That under the treaty of 1778, between the
United States and France, it was not necessary to express the
name of the owner of the ship in the passport) but it was suf-
ficient to state generally, that it was French or American pro-
perty. (5.) That the signature of the public officer, and of
the ship owner, to the oath annexed to the passport provided
by the French treaty of 1788, is essential to the validity of the
passport* (6.) That the passport provided by the treaties of
1778 and 1800, which is substantially the same in this respect,
with the Spanish treaty of 1795, (except that the form of pass-
port was actually annexed to the French* treaties,) is not eon-
elusive evidence of the proprietary interest of the ship ; but if
shown by other papers found on board, or the depositions of
the captured persons, to have been obtained by fraud and per-
jury, it will not give the protection intended by the treaty, hut
the case must be adjudged by the ordinary rules- of the Prize
Court

APPENDIX. J3

In the case of the Carolina Wilhclmina, it appears that the
ship had a certificate frem the " First Inspector, Ordinary In-
spector, and Controller of ike Chamber of Imposts in Pomerania"
that the ship was halt at Stettin in 1796, and wa* the properly of
Prussians^ which it was alleged by the captors was not euffi*
cieot to satisfy the requisitions of the French ordinances,
which provide that the eongS or passport of a neutral vessel
shall express the name of the Master, that of the ship, her bulk,
and lading, and the place of her departure and destination, and
shall be renewed every voyage. M. Portalis^ in has Conclu-
sions in this*case, speaking of the document in question, says :

•* 11 est impossible de reconnoitre dans cette acte la nature
et les caracteres d'un veritable passe-port.

" On objecte que, dans la Pomeranie Prussienne, on est dans
Fusage constant de naviguer sans autre precaution, et qu'ii
faut respecter les usages de chaquepays.

" Mais distiqguons les cas. Je sais que dans la Baltique,
mer close, mare clamum, on voyage sane passe-port ; et on le
pent sans danger. Faut-il en conclure que les navires qui
sortent de cette mer pour aller ailleurs, peuvent se passer
d'un conge* ou passe-port proprement dit? La pratique de
toutes les nations qui ont des ports sur la mer Baltique, sup-
pose le contraire. Tons les navires Danois, Suldois, qui vo-
yagent dans nos men ou dans- lea men generates, se munissent
d'un vrai passe-port. Peur la Prusse, nous pouvons citer
Tart. 2 d'un reglement de S. M. Prussienne du 18 Septembre,
1796, pour ses consuls glnlraux, consuls, agens et vice-con*
suls dans les ports strangers. U porte : 'Le consul doit
veiller d'abord a ce que, confbrmlment aux reglemens qui, a
dififerentes reprises, soot emanls des nos chambres, les capi-
faines, fee. se pr&entent a» consulat, y prochaisent leun passe-
ports, &c. U s'assurera de l'authenticitl des passe-ports qui
hi ont lt£ produits, et a&besoin les visera grati**' Or, l'oblt-
gation de produire des passe-ports pr&upposant n£cessaire-
ment l'obligation d'en avoir, on doit conclure que les Capi-
taines Pomlraniens ne se confonnent pas aux reglements de
leur prince, lonqu'ils navjguent sans passe-port bon de la
Baltique."

14 APPENDIX.

After some farther observations to the same purpose* lie
proceeds : " II n'est sans doute pas ndcessaire qae les formes
accidentelles d'un acte soieot les memes par-tout ; il est an
contraire certain que, par-tout elles peurent 6tre difterentes.
De 1& c'est un principe que la forme de tous les actes quel-
queconques depend des coutumes revues dans les lieux ou ces
actes sout faites ; locus regit actum. II y a des maxitoes gene*-
rales, parce'qu'il y a une raissoo commune. Mais les formes
▼arient selon les lieuz et les temps, parce qu'elles n'apper-
tient point a la raison unirerselle, et qu'elles ne tiennent
point a la.raison universelle, et qu'elles ne tiennent qu'aux
pratiques on aux moeurs particulieres de chaque peuple.

" Ainsi, dans certains pays, les passe-ports sont expldies par
le premier magistrat de PEtat ; dans d'autres, ils le sont par
un magistrat moins £levd en dignity. Ici, on met plus de so-
lemnity dans la redaction on, dans Fetre extlriear de Facte;
ailleurs, on en met moins. II, suffit dans tous les cas, qae le
passe-port expldil, le soit par Fautorit£ compltente et dans k
forme usit£e : car c'est une maxime da droit des gens, qae ec
qui est auihentique dans un pays, Vest pour tout. La jurisdic-
tion d'un Etat ne peut s'ltendre au dela de son territoire ;
mais le caractere public qu'un Etat attache on donne a la forme
des actes qui s'e font en son nom par ses officiers, ne peat
Gtre meconnu nulle part : s'il en e*tait autrement, toute com-
munication reglle entre les peuples deyiendrait impossible.
De la, c'est une maxime incontestable, que tout acte authen-
tique, et reconnu tel dans le pays ou il a 4t€ r€dig£, fatt preure
parmi nous dans les affaires politiques et ciriles. On a sentit
qu'il £tait nlcessaire, pour les relations qui existent dans les di-
vers Gouvernemens, de communiquer aux formes particulieres
des actes faits dans chaque pays, la force de la foi publique.

" Conslquemment, s'il apparaissait, dans les circonstances
pr&entes, un veritable passe-port, et s'il ne s'agissait paa de
confronter les formes accidentelles et extrinseques de cette
piece avec les r£glemens du pays dans lequel elle a e*te* exp6-
dtee, toute difficult^ serait lev£e, si Facte se trouvait conforme
a ces reglemens. Mais nous ne sommes pas dans an telle hy-
po these. II ne s'agit de savoir si la piece pr£sent£e comme

APPENDIX. 16

passe-port, est rev€tae des formes usitles en Prusse ; il s'agit
d'examiner si cette piece est an vrai passe- pprt. La question
n'est pas uniquement relative a la forme de Facte ; elle
frappe tout entiere ear le fond et la substance de 1'acte m€me.

" II est Evident pour les hommes de tous les pays, qu'un
simple certificat de construction et de propria Prussienne,
n'est point un passe-port : cela r&ulte de la nature et de Pes-
sence m6me des choses. Si un tel certificat peut suffire pour
voyager dans la Baltique, ce n'est pas parce qu*il Iquivaut a
un passe-port, mais parce qu'on peut voyager dans la Baltique
sans passe-port. Aussi nous trouvons a bord des navires Prus-
siens qui sortent de la Baltique, des passe-ports veritables et
proprement dits, comme nous en trouvons sur tous les navires
Danois et Suldois qui sortent de cette mer close pour navi-
guer ailleurs

" II serait du plus grand danger de transporter hors de la
Baltique, des usages particuliers dont on pourrait si facile-
ment abuser contre la stirete des autres nations. Nous vo-
yons que les puissances du Nord ont toujours respects, a cet
egard, le droit commun de tous les peuples,— qu'elles n'ont
jamais neglige* de donner des passe-ports a ceux de leurs su-
jets qui viennent dans nos mers, ou dans les mers glnlrales -
et que Ton, ne peut imputer qu'a la negligence du capture,
le d^fautde passe-port, qui a 4t6 un des principaux motifs de
son arrestation."

He then proceeds to examine the role d' equipage, which be
pronounces to be defective, and adds : " Ed principe, il suffit
que la proprfcte* neutr.e soit prouvee, pour qu'il n'y ait pas
lieu a la confiscation \ et la proprilte* neutre peut £tre prouvle,
indlpendamment de certaines irregularis de forme : mais il
faut alors que les preuves de neutrality que Pon pr&ente, soient
assez concluantes pour supplier a celles qui manque nt.

« Dans les circonstances actuellcs, on exhibe, par exemple,
des pieces qui constatent que le navire dont il s'agit, est de con*
struction Prussienne, et qu'il appartenait a des Prussiens,
lorsque le point de propria a €te ve*refi£ par Pinspecteur de
la douane a Stettin ; mais, postlrieurement, une propria ori-
ginairement Prussienne a pu devinir ennemie. Quelle assu-

If APPENDIX.

cance avons nous que cela n'est pas ? Cast ai capture* i]
ver la propria neatre par le passe-port, par le rdle d" Equi-
page, et autres pieces de bard. Toutes les presomptions serit
contre lui, s'il n'est point en regie.

" Des pieces nulles ne vicient pas les autres pieces ; elles
peuvent m£me quelquefois conconrir a la preuve de la verii* ;
€X acta nullo etiam tlkitnr veriias ; mais, selon les occurences,
le deTaat absolo de certaines pieces, et la nature des rices que
Ton remarque dans d'autres, out une influence gfnenle sur
toute la cause.

" Le passe-port est la preuve specifique que Ton n*est pas
1'homme de l'ennemi, et que Pon voyage sous la protection
cPune puissance neutre ; il prouve que le pavilion n'est point
un masque, que la proprilte* du navire n'est pas devenoe en-
nemie, et que le capitaine continue de voyager sous lea lob et
la tutelle de son prince. Supprimez le passe-port : c'est en
vain que vous prouveriez la neutrality originaire du navire et
du capitaine, vous n'avez plus aucuue preuve legale de la
neutrality actuefle ; et c'est pourtant a ce point qu'il faut se
fixer." Code des Prises par Dufriche Fontaines, torn. 2. p.
929, et stq.

In the case of the Republican, winch ship was taken sailnrg ^
under American colours, it was insisted by the captors, among
other grounds of condemnation, (1.) that the vessel having beea
transferred from the toiler proprietor to the present claimant,
the bill of sale ought to be produced. (2.) That the ship was
not provided with a passport according to the 25th article af
the treaty of 1778, between France and the United States, be*
-cause the name of the owner was not specified in the passport,
and the oath annexed.

To this it was answered by the claimant, (1.) that the vessel
not being enemy built, and never having been enemy owned,
it was unnecessary to produce the evidence of her transfer
from one American citizen to another. (2.) That the treaty
of 1778 did not require the name of the owner to be expressed
in the passport, but that it was sufficient to state that the ves-
sel was American property.

APPENDIX. 17

In his Conclusions, M. Portalis, proceeded as follows :

" II est de principe que la propriltl neutre du oavire et de
la cargaison doit etre prouvle, et que cette preuve, est a la
charge du capture. C'eat une autre v^rit^, que la preuve de
la propria neutre a e*te* determine'e par les re'glemens.

" Dans I'hypothese prlsente, la neutrality du navire, le Re*
publicain et de sa cargaison est elte constatee ?

" Je ne m'arreterai point a robjection dlduite de ce que le
change me nt de proprilte' du navire, qui, dit-on, appartenalt au-
trefois a des propriltaires autres que les propri&aires actuels,
n'est point prouvde par des actes authentiques. Je conviens,
d'apres le rlglement de 1778, qu'une telle precaution ne
serait nlcessaire que dans le cas d'un navire originairement
de construction ou de proprilte* ennemie.

" Je ne m'arreterai pas non plus a la circonstance que le
nom du propriltaire ou des propriltaires du navire n'est point
sp^cifiquement d&ign£ dans le passe-port. Le traits de 1778,
passe* entre la France et les Etats Unis d'Amerique, exige seul-
ment que le navire soit reconnu propriety Ame*ricaine, sans
une designation particuliere du nom du propriltaire.

" Mais je deconvre dans le passeport un vice qui m'a paru
essentiel.

" Le capture* avoue, dans le m£moire manuscrit qui m'a 6i6
retnis, que le capitaine, avant son depart, doit preter serment, en*
tre les wains des qffkiers de la marine, que le navire appartient a
un ou plusieurs sujets des Etats Unis, sans autre designation ; il
avoue encore que par la formule annexed au traits de 1778,
cette affirmation assermente'e doit etre a la suite du passe-port.

" Or> j'ai v^rifte qu'a la suite du passe-port dont le capture*
Itait porteur, il n'existe qu'une declaration d'affirmation, sans
aucune signature ni de Pofficier publique devant lequel l'affirma-
tion assermente'e a dti Stre faite, ni de la partie mime qui est
censee avoir pretle le serment. On ne s'est done point con-
form^ autraitl de 1778.

C( Un acte n'est rien a'il n'est aigne* ; e'est la signature qui
fait tout Jusque la, je vois moins un acte qu'un simple projet,
e'est a dire, une redaction qui n'a ete* ni prtfcldee ni suivie d'au-

18 APPENDIX.

cud effet reel. Je suis done autofise* a condure que Vu

tion assermentee, prescrite par le traits de 1778, ti*a point &6

faite.

" Le traits de 1778, dit-on, n'a point present lea fonnali-
tes du passe-port a peine de nullity, mais seulement dans Toilet
(Parreter et de privenir de part ou dy autre toutes dufeiuions et
querelles*

" Le vice que j'ai decouvert dans le passe-port du narire U
Republican, ne tient pas uniquement a la forme de Facte ; 3
tient a sa substance : car un acte non signe" n'existe pas. Dans
un cas pareil, la nullity n'a pas besoin d'etre proooncle par b
loi a titre de peine ; elle est inherente a la chose m^me.

" Vainement objecterait-on qu'un acte nul proave toujour* la
bonne foi de celui qui en est porteur, puisqu'il prouve ao
moins le desir que Ton avait de se le procurer.

" Cela est vrai, quand Facte n'est qu9 irregulier ; mais la
these change, s'il s'agit d'un acte imparfait et non consomme".
Un tel acte n'ayant aucune existence, ne peut produire ancon
effet.

" On pretend que la seule nullite*, du passe-port ne pent ex-
trainer la confiscation si d'ailleurs la proprie'te* neutre est con-
statee par les autres pieces.

"Jeconviens du principe glnlral; mais je crois que ce
principe doit €tre applique* avec discernement.

" II n'est exactement et rigoureusement vrai, que lorsqu'3
n'est question que d'une nullity qui ne peut faire suspecter la
foi de la personne. Dans la cause actuelle, le deTaut de signa-
ture de Fofficier public et de la par tie, est de nature a fair*
pr&umer qu'on n'a ose* affirmer a serment la neutrality da na-
vire. Ce deTaut n'influe pas seulement sur le plus ou sar le
moins de sollennite* de Facte ; il emporte Vacte m€me, et 3 not
suspecter la bonne volante" de celui qui e*tait tenu de le rap-
porter."

He then proceeds to state the other defects in the prooft of
proprietary interest, the destination of the ship to an ene-
my's port combined with the possession of false papers, sad
other circumstances of suspicion, and concludes for the condese-
nation of the ship and cargo. lb. p. 927.

Iq the case of the QattnteJ, a Swedish vessel, the grounds on
which the captors insisted are stated by M. Pobtaus, as fol-
lows:

" Qn pretend que le passe-port, n'ltant signl par le roi de
Suede, n'est point authentique ; qu'il n'indique point la desti-
nation precise du navire, puisqu'il est expldig poor aller dans
la mer occidental* ct plus loin; qu'enfin, dans la supposition ou
un tel passe-port pourrait €tre l£gal, le capture y atirait contre-
venu par son retour a Alicante, ou il Itait d£ja venu une pre-
miere fois dans le m£me voyage.

" Examinoiurces objections. Nul doute que dans chaque
pays, les passe-ports doivent 6trtf expldi& par l'autoritl com-
pltente ; mais celui dont il s'agit, Pa ii4 par le college royal
de commerce de Suede : il est exp£di£ au nom du roi ; mais
nous ne voyons nulle part que la signature du roi flit requise.
En glnlral, dans les monarchies, le nom du roi est a la tlte de
tous les actes publics ; mais la signature du roi n'est opposle
qu'aux actes determines par les lois de chaque pays.

" Dire que le passe-port n'indiquait point une destination
precise, c'est ne rien dire d'utile ou de concluant.

" Tous les voyages de mer ne se resemblent pas. On dis-
tingue les voyages extraordinaires d'avec les voyages ordi-
Oaires ; ceux de long cours d'avec la simple caravane ; le pe-
tit cabotage, du grand cabotage. Tous ceux qui ont Icrit sur
les afiaires maritimes nous avertissent que les passe-ports dif-
ferent dans leur Inonciatioo, selon les diiferentes especes de
voyages.

" 11 est impossible, par exemple, qu'un passe-port poor un
voyage de long cours et pour aller dans un lieu determine, soit
Qon$u dans les mimes termes qu'un passe-port pour la cara-
vane ; car la caravane, selon la definition de l'auteur du Traiti
des Assurances, " est une multiplicity de petits voyages qu'un
oapitaine fiiit dans le cours de sa navigation. II se nolise pour
un port, oij, etant arrive, il decharge la marcbandise, exige le
nolis, se oolisse pour un autre endroit, ou il aborde, fait les
mimes operations, ainsi auccessivement d'un port a I'&utre
jajqu' a ce qu'il revienne au port d'o* il etait parti. Cea

20 APPENDIX.

divers petite voyages, pris cumulativement, ne forment qn'on
voyage unique et principale."

(( Od comprend que par la nature m€me des choses, tut pas-
se-port pour la caravane, ne pent designer avec precision, mi
lieu pi u tot qu'un autre ; mais les reglemens et les coatumw de
chaque pays determine la caravane, et pour 1'espace que Tod
peut parcourir en faisant ces sortes de voyages, et poor le
terns pendant lequel on peut demeurer en mer avant de re-
tourner au lieu du depart. Ainsi, Ton sait qu'en France, le
petit cabotage comprend tous les ports depuis Bayonne jnsqu'a
Dunkerque inclusiveroent ; que le grand cabotage attend a
toute autre navigation plus lloignle, qui n'est pas declare to*
yage de long cours. On sait encore que, par nos reglemeai
Francais, la grande caravane peut durer 2 ana sans que Too lit
besoin de se munir d'un nouveau conge*. On sait, enfin que
les conge* ou passe-ports sont rldigls difftremeot, selon o/il
s'agit d'un voyage de long cours ou d'ane simple caravane,

" Dans les circonstances de la cause, il ne e'agissait que
d'une simple caravane : cela est convenu. Le passe-port oV
vait done etre conforme a la nature du voyage que Ton entrfr
prenoit. De-la, nous lisons dans ce passe-port, ad mart oca-
dentale et vlterius, ad ordinationcm. Les mots, admareocO'
dentale etulterius sont indlfinis, parce-que, dans un passe-port
pour une caravane, il est impossible de designer un lieu deter-
mine*. Mais on adjoute, ad ordinaliontm, pour annoocerqa*
ne peut pas abuser de la latitude donnle par le passe-port, «
exclder le temps et 1'espace fixers par 1'usage ou par r*tj*
mens relativement a ces sortes de voyages.

" Aucune loi n'a prohibe* aux neutres la caravane en tea*
de guerre ; car la neutrality d'une nation, qui n'est po«r ^
pation que la continuation de l'ltat de paix, doit lui garanur
tous les avantages attaches a cet e*tat.

" Le capture e*tait done muni d'un passe-port regol'er> •*!■
et conforme a l'espece de voyage qu'il avait entrepria.

" A-t-il contrevenu a ce passe-port ? On le pretend ; **
on ne le prouve pas. Peu importe qu'apres avoir #e
premiere fois a Alicante, il y soit return* ou qa'*! «■ ■**

APPENDIX. 2!

1'intention. Dans la caravane, on peat aller, venir et retour-
ner ao m€me port, pourvu qu'on ne fasse pas dege*ne>«r la ca-
ravane en voyage de long cours, on que, sans cause legitime et
constatte, ou ne voyage pas au-dela du terns determine par les
reglemens ou par la coutume.

"Or, ici la conduite du capitaine ne pouyait €tre suspecte,
ni par rapport a la dure*e de son voyage. Done point de con-
travention au passe-port. II est done Evident que la prise est
invalide." lb. p. 935.

In the case of the Molly, taken under American colours, after
the ratification of the treaty of 1800 between the United
States and France, the ship was provided with the passport, as
stipulated by the treaty, but which was falsified by other pa-
pers found on board, showing the property to be British.

In his Conclusions, M. Durahd, after stating the facts, pro-
ceeded as follows :

i( La preuve resultant d'un acte public, tel qu'un passe-port,
est fondee sur la confiance reciproque que se doivent les Gou-
vernemens amis ; il a £t£ necessaire au maotien de 1'harmonie
qui regne entre les nations, qu'on se contentat de part et d'au-
tre des preuves fournies par des actes revetus de signature
d'officiers publics proposes pour cet effet. Ces officiers publics
de leur cotes, ont e*te* obliges, dans la plupart des cas, de s'en
rapporter a la bonne foi de ceu* qui s*adressent a eux pour
obtenirleur attache, et sans doute leur confiance est quelque-
fois trample. II leur est difficile, pour ne pas dire impossible,
de discerner les propriltls des admioistrls. II faut done qu'ils
s'en rapportent a leur declaration. Par example, a la suite du
passe-port du Capit. Borrow dale, on trouve Facte du serment
qu'il a prSte*, que It navire quHl command* actuellement est un
batiment des Etats-Unis oVAmerique> et qu'aucun citoyen ou sujet
des Puissances presentement en guerre n'y a aucune part ou in-
tiret, soit directement soil indirectement. C'est sur la foi de cet
expose que le Gouvernement Amlricain le prend sous sa sau-
vegarde, et lui accorde sa protection. Ce gouvernement est
trop loyal pour ne pas £tre indigne* de la fraude et de l'impos-
ture qu'on ne craint pas de mettre en usage pour surprendre
un passe-port qui couvre la proprilte* Anglaise. II le punirait,

3* AFKNMX.

n'en doutons pas, s'il avait connaisanee de la surprise firite a M.
bonne-foi.

" Plus il est fecile d'abuser de la confiance qu'un G-ouveroe-
ment est oblige d'aceorder a ses n£gocians, phis oa doit accoet-
lier, je ne dis pas les pr&omptions, mais an moins tea prenve*
des supercheries auxquelles ceux«ci peuvent avoir recoufs pour
le tromper. Si done le hasard en pr£sente, et qn'elles sont de
nature a fatre suspecter les pieces de bord, il nrest pas donteuz
que le Conslil n'ait le droit de les peser dans la balance in>
partiale de la justice, et de les faire pr£valoir sur les preuves
legates, lorsqu'elles sont telles qu'elles ne peuvent se conctlier
avec elles.

w Les lois et les usages prescrivent de recueillir les declara-
tions des capture's, de les interroger. A quoi ces precaationa
serviroient-elles, s'il n'ltait pas permis de cbercher la ve*rit£ a
travers tons les detours dans lesquels se cacheot les Degociane
que la cupidite porte a iavoriser Pennemie par les mojens les
moins delicats ?

" Une lettre est encore moins suspecte qu'un declaration, et
elle ne doit pas avoir moins de force ; il est impossible de sup-
poser que celui qui en etait le depositaire, suppose un titre qui
lui porte prejudice : on doit done ajouter foi a son conteno, et
croire, lorsqu'elle presente des r^sultat, contraires an pieeea
de bord, que celles-ci sont Pouvrage de la simulation, et
qu'elles ont ete obtenues sur un faux expose. Je pourrais
maintenant examiner de plus pres les connaisemensv et Pom
trouverait peut-€tre, en les comparant les uns anx autres et
avec la lettre citee, que la plus grande partie de la cargaistm
est ennemie ; mais s'il est prouve* que le batimeia appartient
aux Anglais, e'est une consequence necessaire que la cargaiaon
soit confisquee. Tel est le droit consacre par nos traites, per*
ticulierement par le dernier (art. 15.) avec les Etats-Unis
d'Amerique." Ib.p .985.

APPENDIX.

NOTE No. III.

TO T«E CASK OV THE AUIABLE ISABELLA.

Articles of the French treaties referred to in the text.

Art 4. The subjects, peo-
ple, and inhabitants of the said
United States, and each of
them, shall not pay in the
ports, havens, roads, isles, ci-
ties, and places under the do-
mination of his most Christian
Majesty, in Europe, any other
or greater duties or imposts,
of what nature soever they
may be, or by what name so-
ever called, than those which
the most favoured nations are
or shall be obliged to pay;
and they shall enjoy all the
rights, liberties, privileges,
immunities, and exemptions in
trade, navigation, and com-
merce, whether in passing
from one port in the said do-
minions, in Europe, to another,
or in going to and from the
tame, from and to any part of
the world, which the said na-
tions do or shall enjoy.

Art. 12. The merchant ships
of either of the parties which
•hall be making into a port be-
longing to the enemy of the
other ally, and concerning
whose voyage, and the species
of good! on board her, there

Art. 4. Les sujets, peuples
et habitans des dits Etats Unis,
et de chacun d'iceux, ne pa?e-
ront dans les ports, havres,
rades, isles, villes et places de
la domination de sa Majestf
tres Chr£tienne en Europe,
d'aotres ni plus grands droits
ou imp6ta de quelque nature
qu'ils puissent Stre et quelque
nom qu'ils puissent avoir que
les nations les plus favorites
soot, ou seront tenues de
pater, et ils jouiront de tout
les droits, liberies, privilege*
et exemtions en fait de negoce,
navigation et commerce soit en
passant d'un port a un autre
des dits etats du roi tres Chre-
tien en Europe, soit en y allant
on en revenant de quelque
partie ou pour quelque paitie
du monde que ce soit, dont
les nations susdites jouissent
ou jouiront.

Art. 12. Les navires mar-
chands des deux parties qui
seront destines poor des ports
appartenants a une puissance
ennemie de l'autre allil, et
dont le voiage ou la nature des
marchandises dont ils seront

£4

APPENDIX.

•hall be just grounds of suspi-
cion, shall be obliged to exhi-
bit, as well upon the high seas,
as in the ports and havens,
not only her passports, but
likewise certificates, expressly
showing that her goods are not
of the number of those which
have been prohibited as con-
traband.

Art. 13. If, by the exhibiting
of the abovesaid certificates,
the other party discover there
are any of those sorts of goods
which are prohibited and de-
clared contraband, and con*
signed for a port under the
obedience of his enemies, it
shall not be lawful to break up
the hatches of such ship, or to
open any chest, coffers, packs,
casks, or any other vessels
found therein, or to remove
the smallest parcels of her
goods, whether such ship be-
longs to the subjects of France,
or the inhabitants of the said
United States, unless the la-
ding be brought on shore in
the presence of the officers of
the Court of Admiralty, and
an inventory thereof made ;
but there shall be no allowance
to sell, exchange, or alienate
the same, in any manner, until
after that due and lawful pro-
cess shall have been had
against such prohibited goods,

charges donneroit de juste*
soupgons, seront tenus d'ex-
hiber eoit en haute mer, soit
dans les ports et havres, non
seulement leurs passe-ports
mais encore les certificata qui
constateront expressement que
leur chargement n'est pas de
la quality de ceux qui sont
prohibls comme contrebande.
Art. 13. Si 1'exhibition des
dits certificate conduit a d<5-
couvrir que le navire porte
des marchandises prohibles et
reputles contrebande, consig-
nees pour un port ennemi, il
ne sera pas permis de briser
les €coutilles des dits navires,
ni d'ouvrir aucune caisse, cof-
fre, malle, ballots, tonneaux et
autres caisses qui s'y trouve-
ront, ou d'en dlplacer et d&-
tourner la moindre parti des
marchandises soit que le na-
vire appartienne aux sujets du
roi tres chr£tien ou aux habi-
tans des Etats Unis, jusaa' a
ce que la cargaison ait 6t6 miae
a terre en presence des offi-
ciers des Cours d'Amiraute, et
que Tinventaire en ait 6t& fait ;
mais on ne permettra pas de
vendre, ^changer ou aligner
les navires ou leur cargaison
en maniere quelconque, avant
que le proems ait 4t& fait et par-
fait l£galement pour declarer
la contrebande, et que lea

APPENDIX.

aad the Court of Admiralty
shall, by a sentence pronoun-
ced, have confiscated the same :
saving always as well the ship
itself as any other goods found
therein, which by this treaty
are to be esteemed free, nei-
ther may they be detained on
pretence of their being as it
were infected by the prohibit-
ed geods, much less shall they
be confiscated as lawful prize :
but if not the whole cargo, but
only part thereof, shall consist
of prohibited or contraband
goods, and the commander of
the ship, shall be ready and
willing to deliver them to the
captor, who has discovered
them, in such case, the captor
having received those goods,
•hall forthwith discharge the
ship, and not hinder her by
any means, freely to prosecute
the voyage on which she was
bound. But in case the con-
traband merchandises cannot
be all received on board the
vessel of the captor, then the
captor may, notwithstanding
the offer of delivering him the
contraband goods, carry the
vessel into the nearest port,
agreeably to what is above di-
rected.

Vol. VI.

cours d'amiraute* auront pro-
nonce* leur confiscation par
jugement, sans prejudice ne"an-
moins des navires, ainsi que
des marchandises qui en vertu
du traite* doivent €tre census
libres. II ne sera pas permis
retenir ces marchandises sous
pretezte qu'elles ont £te* enta-
che'ea par les marchandises de
contrebande et bien moins en-
core de les confisquer comme
des prises legates. Dans le
cas ou une partie seulement et
non la totality du cbargement
consisteroit en marchandises
de contrebande, et que le com-
mandant du vaisseau consente
a les delivrer au corsaire qui
les aura dlcou verts, alors le
capitaine qui aura fait la prise,
apres avoir re$u ces marchan-
dises doit incontinent re lac her
le navire et ne doit l'emp€cher
en aucune maniere de conti-
nuer son voyage. Mais dans
le cas oil les marchandises de
contrebande ne pourroient pas
€tre toutes chargles sur le
vaisseau capteur, alors le capi-
taine du dit vaisseau sera le
ma it re, malgre Poffre de re-
mettre la contrebande, de con-
duire le patron dans le plus
prochain port, conformlment
a ce qui est pr&crit plus
haut.
D

APPENDIX.

Aft. 14. On the contrary, it
is Agreed, that whatever shall
be found to be laden by the
subjects and inhabitants of
either party on any ship be-
longing to the enemies of the
other, or to their subjects, the
whole, although it be not of
the sort of prohibited goods,
may be confiscated^ the same
manner as if it belonged to the
enemy, except such goods and
merchandises as Vvere put on
board such ship before the de-
claration of war, or even after
such declaration, if so be it
were done without knowledge
of such declaration, so that the
goods of the subjects and peo-
ple of either party, whether
they be of the nature of such
as are prohibited or otherwise,
which, as is afore said, were
put on board any ship belong-
ing to an enemy before the
war, or after the declaration
of the same, without the know-
ledge of it, shall no ways be
liable to confiscation, but shall
well and truly be restored
without delay to the proprie-
tors demanding the same ; but
so as that if the said merchan-
dises be contraband, it shall
not be any ways lawful to car-
ry them afterwards to any
ports belonging to the enemy.

Art. 14. On est convenu an
contraire, que tout ce qui se
trouvera charge par les sujete
respectifs sur des navires ap-
frartenants aux eonemis de
Pautre partie ou a lean sujete,
sera confisqul sans distinction
des marchandises prohib£es on
hon prohib£es,ainsi et de m&me
que si elles appartenoient a
Pennemi, a P exception touts
fois, des effets et marchandisei
qui auront 6t6 mis a bord des
dits navires avant la declara-
tion, de guerre ou tn&fte apres
la dite declaration, si an mo-
ment du chargement on a p«
Tignorer de manure qoe lea
marchandises des sujete des
deux parties, soit qu'ellesse
trouvent do nombre de ceDes
de contrebande ou autremeat,
les quelles cottme il vient
d'etre dit auront 6te mises a
bord d'un vaisseaa apparteaant
a Pennemi avant la guerre en
m£me apres la dite declaration,
Porsqu'on Pignoroit ne seroat
en aucune maniere, sujetes a
confiscation, mais seront fi-
delement et de bonne foi mi-
dues sans delai a leurs propm-
taires, qui les reclameront ;
bien entendu or&nmoins, qa*il
ne soit pas permis de porter
dans les ports ennemis les
marchandises qui seront de

jtfPgNPIX.

The two contracting parties
agree, that the term of two
months being passed after the
declaration of war, their re-
spective subjects, from what-
ever part of the world they
come, shall not plead the igr
sorance mentioned in this ar-
ticle.

Art. 16. And that more ef-
fectual care may be taken for
the security of the subjects
and inhabitants of both parties,
that they suffer no injury by
the men of war or privateers
of the other party, all the
commanders of the ships of his
most Christian Majesty and of
the said United States, and all
their subjects and inhabitants,
shall be forbid doing any in-
jury or damage to the other
side ; and if they act to the
contrary they shall be punish-
ed, and shall moreover be
bound to make satisfaction for
all matter of damage, and the
interest thereof, by reparation,
under the pain and obligation
of their person and goods.

Art. 23. It shall be lawful
for all and singular the sub-
jects of the most christian
king, and the citizens, people,
and inhabitants of the said
United States, to sail with their
ships with all manner of liber-

contrebande. Les deux par-
ties contractaotes conviennent
que le tenne o*e deux mois
passes depuis la declaration de
guerre, leurs sujets respectifs,
de quelque partie du monde
qu'ils viennent, ne pourront
plus alleguer Tignorance dont
il est question dans le present
article.

Art. 16. Et afin de pourvoir
plus efficacement a la stirete"
des sujets des deux parties
contractantes, pour qu'il ne
leur soit fait aucun prejudice
par les vaisseaux de guerre
de 1'autre partie, ou par des
armateurs particuliers, il sera
fait defense a tous capitaines
des vaisseaux de sa Majestc*
tres Chrltienne et des dits
Etats Unis, et a tous leurs su-
jets de faire aucun dommage
ou insulte a ceux de 1'autre
partie, et au cas ou ils y con-
treviendroient, ils en seront
punis et de plus ils seront te-
nus et obliged en leurs person-
nes et en leurs biens de re*-
parer tous les dommages et
intlrets.

Art. 23. II sera permis a
tous et un chacun des sujets du
roi tres chr&ien et aux citof-
ens, people et habitans des
susdits Etats Unis, de naviguer
avec leurs bltimens avec toute
liberty et surettf, sans qu'il

APPENDIX.

ty and security, do distinction
being made who are the pro-
prietors of the merchandises
laden thereon, from any port
to the places of those who now
are, or hereafter shall be, at
enmity with the most christian
king, or the United States. It
shall likewise be lawful for the
subjects and inhabitants afore-
said, to sail with the ships and
merchandises aforementioned,
and to trade with the same li-
berty and security from the
places, ports, and havens of
those who are enemies of both
or either party, without any
opposition or disturbance what-
soever, not only directly from
the places of the enemy afore-
mentioned to neutral places,
but also from one place be-
longing to an enemy to ano-
ther place belonging to an e-
neray, whether they be under
the jurisdiction of the same
prince, or under several. And
it is hereby stipulated, that
free ships shall also give a
freedom to goods, and that
every thing shall be deemed
to be free and exempt which
shall be found on board the
ships belonging to the subjects
of either of the confederates,
although the whole lading, or
any other part thereof, should
appertain to the enemies of

puisse 6tre fait d'exception i
cet egard, a raison des propria
taires des marchandises char-
gers sur les dits batimens, Te-
nant de quelque port que ce soft
et destines pour quelque place
d'une puissance actuellemeot
ennemie, ou qui poorra I'etre
dans la suite de sa majestetws
chreHienne ou des Etats Unis.
II sera permis egalement aox
sujets et babitans auamentioo-
ne"s de navigueravec lean vail*
Beaux et marchandises et de
frequenter avec la m&ne li*
berte* et surete les places,
ports, et havres des pais-
sances ennemies des deui par-
ties contractantes on d'une
d'entre elles sans opposition
ni trouble, et de faire le com-
merce non seulement directe-
ment des ports de l'eunemi
susdit a un port neutre, mail
aussi d'un port ennemi aun
autre port ennemi, soit qa'il
se trouve sous sa jurisdiction
ou sous celle de plusieurs ; et
il est stipule* par le present
traite* que les batimens libres
assure ront egalement la liber*
t€ des marchandises, et qu'oo
jugera libres toutes les choses
qui se trouveront abord des
navires aparteoants aux sujets
d'une des parlies contractantes,
quand m£me le chargemeot oo
partie d'icelui apartiendroit

APPENDIX.

£9

either, contraband goods being
always excepted. It is also
agreed in like manner, that the
same • liberty be extended to
persons who are on board a
free ship, with this effect, that
although they be enemies to
both or either party, they are
not to be taken oat of that free
ship, unless they are soldiers,
and in actual service of the
enemies.

Art. 24. This liberty of na-
vigation and commerce shall
extend to all kinds of merchan-
dises, excepting those only
which are distinguished by the
name of contraband ; and under
this name of contraband, or
prohibited goods, shall be com-
prehended arms, great guns,
bombs with the fuses, and
other things belonging to them,
xannon ball, gunpowder,match,
pikes, swords, lances, spears,
halberds, mortars, petards,
grenades, saltpetre, muskets,
musket ball, bucklers, helmets,
breast plates, coats of mail,
and the like kinds of arms, pro-
per for arming soldiers, mus-
ket rests, belts, horses with
their furniture, and all other
warlike instruments whatever.
These merchandises which

aux ennemis de Pane des deux ;
bien entendu n&nmoins que
le contrebande sera toujours
exceptle. II est egalement
convenn que cette m£me li-
berty s'ltendroit aux personnes
qui pourroient se trouver a-
bord da batiment libre quand
m£me elles seroient ennemies
de 1'une des deux parties con-
tractantes, et elles ne pourront
Itre enlevles des dits navires
a moins qu'elles ne soient mi-
litaires et actuellement au ser-
vice de Tennemi.

Art. 24. Cette liberty de na-
vigation et de commerce doit
s'ltendre sur toutes sortes de
marchandises, a 1'exception
seulement de celles qui sont
designees sous le nom de con-
trebande ; Sous ce nom de
contrebande ou de marchan-
dises prohibles doivent £tre
compris les armes, canons,
bombes avec leurs fusses et
autres choses y relatives, bou-
lets, poudre a tirer, mlches,
piques, epe*es, lances, dards,
hallebardes, mortiers, petards
grenades, sal pet re, fusils, bal-
les, boiicliers, casques, cuiras-
ses, cote de mailles, et autres
armes de cette espece, propres
a armer les soldats, porte-
mousqueton, bau driers, che-
vaux avec leurs Iqui pages, et
tons autres instrumens de

APPENDIX.

follow, shall not be reckoned
among contraband or prohibit*
ed goods : that is to say, all
sorts of clothi, and all other
manufactures woven of any
wool, flax, silk, cotton, or any
other materials whatever, all
kinds of wearing apparel, to-
gether with the species where-
of they are used to be made,
gold and silver, as well coined
as uncoined, tin, iron, latten,
copper, brass, coals ; as also
wheat and barley, and other
kind of corn and pulse ; tobac-
co, and likewise all manner of
spices ; salted and smoked
flesh, salted fish, cheese and
butter, beer, oils, wines, su-
gars, and all sorts of salts ;
and in general all provisions
which serve fdr the nourish-
ment of mankind and the sus-
tenance of life ; furthermore,
all kinds of cotton, hemp, flax,
tar, pitch, ropes, cables, sails,
sail cloths, anchors, and any
parts of anchors, also ships'
masts, planks, boards and
beams of what trees soever ;
and all other things proper ei-
ther for building or repairing
ships, and all other goods
whatever which have not been
worked into the form of any
instrument or thing prepared
for war by land or by sea, shall
not be reputed contraband,

guerre queicoaqaes. Leanaar-
chandises denomm<os cUapna
ne seront pas comprises penm
la centrebande on choses pro*
hibees, saveir Urates sortes de
draps et toutes autres Itoffee
de laine, tin soye, coton on
d'autres matieres quelquoqncs;
toutes sortes de vetemens avec
les etoffes dont on a coutame
de les faire, Tor et l'argent
monnoil ou non, retain, le fer
laiton, cuivre, airain, char-
bons, de meme que le froment
et 1'orge, et toute autre sorte
de bleds et legumes ; le tabac
et toutes les sortes d'epiceries,
la viande salee et fnrn^e, pots-
son sale, fromage et beurre,
bierre, huiles, vins, sucres, et
toute espece de sel, et en g£-
n^ral toutes provisions servant
pour la nourriture de rfaomme
et pour le soutien de la Tie.
De plus, toutes sortes de coton,
de chanvre, lin, goudron, poix,
cordes, cables, voiles, toiles a
voiles, ancres, parties d'ancres,
mats, planches, madiiers, et
bois de toute espece, et tootes
autres choses propres a la
construction et reparation des
vaisseaux et autres matieres
quelconques qui n'ont pas la
forme d'un instrument prepare,
pour la guerre par terra
comme par mer, ne seront pas
peputles contraband* et en-

APPENDIX.

touch less Such as have been
already wrought and made up
for any other use : all which
shall be wholly reckoned a-
mong free goods ; as likewise
all other merchandises and
things which are not compre-
hended and particularly men-
tioned in the foregoing enu-
meration of contraband goods ;
so that they may be transport-
ed and carried in the freest
manner by the subjects of both
confederates, eren to places
belonging to an enemy, such
towns or places being only ex-
cepted, as are at that time be-
sieged, blocked up, or invest-
ed.

Art. 25. To the end that all
manner of dissentions and quar-
rels may be avoided and pre-
vented, on one side and the
other, it is agreed, that in
case either of the parties here-
to should be engaged in war,
the ships and vessels belong-
ing to the subjects or people
of the other ally, must be fur-
nished with sea letters or
passports expressing the name,
property, and bulk of the ship,
as also the name and place of
habitation of the master or
.commander of the said ship,
that it may appear thereby that
the ship really and truly be-
longs to the subjects of one of

core moins celles qui sent de*-
ja preparers pour quelqu' au-
tre usage : Toutes les choses
denommles cidessns doivent
£tre comprises parmi les mer-
chandises, libres,de m£me que
toutes les autres merchandise
et effets qui ne sont pas compris
et particulierement nomtnes
dans l'enumtfration des mer-
chandises de contrebande ; de
maniere qu'elles pourront 6tre
transporters et conduites de la
maniere la plus libre par les
sujets des deux parties contruc-
tantes dans des places enne*
mies, a l'exception nlanmoins
de celles qui se tronveroieat
actoellement assiegees, blo-
qules ou investies.

Art. 25. Afin d'&arter et
de preventr de part et d'autre
toutes discussions et querelles
il a &6 convenu que dans le
cas ou l'une des deux parties se
trouveroit engages dans une
guerre, les vaisseaux et blti-
mens aparteuans aux sujets on
peuple de 1'autre allie* devront
£tre pourvus de lettres de mer
ou passe-ports, lesquels expri-
meront le nom, la propria et
le port du navire, aiosi que le
nom et la demeure du maHre
eu commandant du dit vais-
seau, afin qu'il aparoisse par la
que le m£me vaisseau apartient
rlellement et vlritablement
aux sujets de Tune des deux

APPENDIX.

the parties, which passport
shall be made out and granted
according to the form annexed
to this treaty ; they shall like-
wise be recalled every year,
that is, if the ship happens to
return home within the space
of a year. It is likewise a-
greed, that such ships, being
laden, are to be provided not
only with passports as above-
mentioned, but also with cer-
tificates, containing the seve-
ral particulars of the cargo,
the place whence the ship
sailed, and whither she is
bound, that so it may be known
whether any forbidden or con-
traband goods be on board the
same ; which certificates shall
be made out by the officers of
the place whence the ship set
sail, in the accustomed form ;
and if any one shall think it fit
or advisable to express in the
said certificates the person to
whom the goods on board be-
long, he may freely do so.

Art. 26. The ships of the
subjects and inhabitants of ei-
ther of the parlies, coming
upon any coasts belonging to
either of the said allies, but
not willing to enter into port,
or being entered into port and '
not willing to unload their car-
goes, or break bulk, they shall

parties contractantes; leqael
passe-port, devra €tre e*xpedi6
selon le modele annexe an
present traite*. Ces passe-ports
devront egalement etre renou-
velles chaque annle dans le
cas on le vaisseau retoume
chez lui dans I'espace d'nne
ann£e. II a &e* conveaa egale-
ment que les vaisseaux sosmen-
tionne*s dans le cas ou ils se-
roient charge's devront €tre
poufvus non seulemeat de
passe-ports mais aussi de cer-
tificats, contenant le detail de
la cargaison, le lieu d'ou le
vaisseau est parti, et la decla-
ration des marcbandises de
contrebande qui pourroientse
trouver abord ; lesquels certi-
ficate devront etre e~xpedies
dans la forme accoutuoaee* par
les officiers du lieu d'oa le
vaisseau aura fait voile, et a'il
e*toit juge* utile ou prudent
d'exprimer dans les dits passe-
ports la personne a laqnelle
les marchandises apartiennent,
on pourra le faire librenaent*

Art. 26. Dans le cas ou les
vaisseaux des sujets et habi-
tans de Tune des deux parties
contractantes aprocheroient
des cotes de l'aulre, sans oe
pendant avoir le dessein d'en~
trer dans le port, ou apres €tre
entre*, sans avoir le dessein de
decharger la cargaison, on

APPENDIX.

lie treated accottingto the ge-
neral rules prescribed or to
be prescribed, relative to the
object in question.

Art. 27. If the ships of the
said subjects, people, or inha-
bitants of either of the parties
shall be met with, either sail*
ing along the coasts, or on the
high seas, by any ship of war
of the other, or by any pri-
vateers, the said ships of war
ot privateers, for the avoiding
of any disorder, shall remain
out of cannon shot, and may
eend their boats aboard the
merchant ship which they shall
ae meet with,and may enter her
to the number of two or three
men only, to whom the master
or commander of such ship or
vessel shall exhibit his pass-
port concerning the property
of the ship, made out accord-
ing to the form inserted in this
present treaty, and the ship,
when she shall have showed
such passport, shall be free and
at liberty to pursue her voy-
age, so as it shall not be lawful
to molest or search her in any
manner, or to give her chase,
or force her to quit her in-
tended course.

Art. 28. It is also agreed,
that all goods when once pot

Vol. VI.

rompre lent charge, on se
condoira a leur Igard suivant
les reglemens genlreaux pre-
sents ou a prescrire relative*
ment a 1'objet dont il est ques*
tion.

Art. 27. Lorsqu'un batiment
apartenant auxdits sujets, pea*
pie et habitans de Tune des
deux parties, sera recontre*
aaviguant le long des cotes ou
en pieine mer, par un vaisseau
de guerre de 1'autre, ou par
un armateur, le dit vaisseau
de guerre, ou armateur, afia
d'lviter tout d&ordre, se tien-
dra hors de la ported da canon,
et pourra envo'ier sa cbaloupe
abord du batiment marchand,
et y faire entrer deux ou trots
bommes, aux quels le maftrt
ou commandant du batiment.
montrera son passe-port, lequel
devra etre conforms' a la for*
mule annexle au present traits',
et constatera la proprilte* du
batiment, et apres que le dit
batiment aura exhibe* un pareil
passe-port, il lui sera libre de
continuer son vok'age et il ne
sera pas permis de le moles-
ter, ni de chercher en aucun*
maniere, de lui dorttter la
chasse, ou de le forcer de
quitter la course qa'il tfttait
propose*

Art. 28. II est cenveau q«sj
bisque lee Matehandiiee ad-
E

APPENDIX.

on board the ships or Teasels
of either of the two contract-
ing parties, shall be subject to
no farther visitation ; but all
visitation or search shall be
made beforehand, and all pro-
hibited goods shall be stopped
on the spot, before the same
be put on board, unless there
are manifest tokens or proofs
of fraudulent practice ; nor
shall either the persons or
goods of the subjects of his
most christian majesty or the
United States, be put under
any arrest, or molested by any
other kind of embargo for that
cause ; and only the subject of
that state to whom the said
goods have been or shall be
prohibited, and who shall pre*
sume to sell or alienate such
sort of goods, shall be duly pu-
nished for the offence.

ront Ite* chargees sur les vais-
seaux ou batimens de Tune des
deux parties contractantes,
elles ne pourront plus 6tre as*
sujeties a aucune visite ; toute
visite et recherche devant
6tre faite avant le chargement,
et les marchandises prohibees
devant 6tre arrgtees et saises
sur la plage avant de pouvoir
£tre embarqules a moins qo'oa
n'ait des indices manifestos on
des preuves de versements
frauduleux. De m£me aucun
des sujets de sa majeste* tret
chrltienne ou des Etats Unis,
ni leurs marchandises, ne poor*
ront 6tre arrets ni molestes
pour cette cause, par aucune
espece d'embargo ; et les
seuls sujets de Petal, aux-
quels les dites marchandises
auront e*te" probities, et qui se
seront emancipe's a vendre et
aligner de pareilles marchan-
dises, seront daement panis
pour cette contravention.

Treaty with Holland of 1782.

Art. 10. The merchant ships of either of the parties, coming
from the port of an enemy, or from their own, or a neutral
port, may navigate freely towards any port of an enemy of the
other ally ; they shall be, nevertheless, held, whenever it shall
be required, to exhibit, as well upon the high seas, as in the
ports, their sea letters and other documents, described in the
twenty-fifth article, stating expressly, that their effects are not
of the number of those which are prohibited, as contraband ;

APPENDIX. 36

and not having any contraband goods for an enemy's port, they
may freely, and without hindrance, pursue their voyage to-
wards the port of an enemy. Nevertheless, it shall not be re-
quired to examine the papers of vessels convoyed by vessels of
war, but credence shall be given to the word of the officer who
shall conduct the convoy.

Art. 11. If, by exhibiting the sea letters, and other docu-
ments, described more particularly in the twenty-fifth article
of this treaty, the other party shall discover there are any of
those sorts of goods, which are declared prohibited and contra-
band, and that they are consigned for a port under the obedi-
ence of his enemy, it shall not be lawful to break up the hatch-
es of such ship, nor to open any chest, coffer, packs, casks, or
other vessels found therein, or to remove the smallest parcel
of her goods, whether the said vessel belongs to the subjects of .
their high mightinesses the states general of the United Nether-
lands, or to the subjects or inhabitants of the said United States
of America, unless the lading be brought on shore, in presence
of the officers of the Court of Admiralty, and an inventory
thereof made ; but there shall be no allowance to sell, ex-
change, or alienate the same, until after that due and lawful
process shall have been had against such prohibited goods of
contraband, and the Court of Admiralty, by a sentence pro-
nounced, shall have confiscated the same, saving always as well
the ship itself, as any other goods found therein, which are to
be esteemed free, and may not be detained on pretence of their
being infected by the prohibited goods, much less shall they
be confiscated as lawful prize ; but, on the contrary, when, by
the visitation at land, it shall be found that there are no con-
traband goods in the vessel, and it shall not appear by the
papers, that he who has taken and carried in the vessel has
been able to discover any there, he ought to be condemned in
all the charges, damages, and interests of them, which he shall
have caused, both to the owners of vessels, and to the owriert
and freighters of cargoes with which they shall be loaded, by
his temerity in taking and carrying them in ; declaring most
expressly the free vessels shall assure the liberty of the effects
with which they shall be loaded, and that this liberty shall ex-

36 APPENWX.

tend itself equally to the persons who shall be found in a fret
vessel, who may not be taken out of her, unless they are mils*
tary men actually in the ser?ice of an enemy.

.Art. 19. On the contrary, it is agreed, that whatever shall
be found to be laden by the subjects and inhabitants of either
party, on any ship belonging to the enemies of the other, or to
their subjects, although it be not comprehended under the sort
of prohibited goods, the whole may be confiscated in the same
manner as if it belonged to the enemy, except, nevertheless,
such effects, and merchandises as were put on board such Tea*
sel before the declaration of war, or in the space of six months
after it, which effects shall not be, in any manner, subject to
confiscationf but shall be faithfully and without delay restored
in nature to the owners who shall claim them, or cause thes*
to be claimed, before the confiscation and sale, as also their
proceeds, if the claim could not be made but in the space of
eight months after the sale, which ought to be public ; pro*
Tided, nevertheless, that if the said merchandises are contra-
band, it shall by no means be lawful to transport them after-
wards to any port belonging to enemies.

The form of the Passport, which shall be given to ships and vessels, in coo-
sequence of the 25th article of this treaty.

To all who shall see these presents, greeting : Be it kaowa*

that leaveand permission are hereby given to , master or

commander of the ship or vessel, called — — , of the horde*
of — — tons, or thereabouts, lying at present in the port or
haven of , bound for , and laden with , to de-
part and proceed with his said ship or vessel on his said voy-
age, such ship or vessel having been visited, and the said mas-
ter and commander having made oath before the proper officer,
that the said ship or vessel belongs to one or more of the sub-
jects, people, or inhabitants of , and to him or them only.

Jn witness whereof, we have subscribed our names to these
presents, and affixed the seal of our arms thereto, and
caused the same to be countersigned by , at — -,
*»» day of — , in the year of our Lord Christ

APPENDIX 97

Form of the Certificate which shall be given to ships or vessels, in conse-
quence of the 25th article of this treaty.

We, , magistrates, or officers of the customs, of the city

or port of , do certify and attest, that on the — - day of

, in the year of our Lord — , C. D. of , personally

appeared before us and declared, by solemn oath, that the ship

or vessel called , of tons, or thereabouts, whereof

— — , of , is, at present, master or commander, does right-
fully and properly belong to him or them only ; that she is now

bound from the city or port of , to the port of , laden

with goods and merchandises, hereunder particularly described
and enumerated, as follows :

In witness whereof, we have signed this certificate, and seal-
ed it with the seal of our office, this — day of — -— , in.
the year of our Lord Christ — .

Form of the Sea Letter.

Most serene, serene, most puissant, puissant, high, illustri-
ous, noble, honourable, venerable, wise, and prudent lords,
6mperors, kings, republics, princes, dukes, earls, barons, lords,
burgomasters, schepens, councillors ; as, also, judges, officers,
justiciaries, and regents, of all the good cities and places, whe-
ther ecclesiastical or secular, who shall see these patents or
hear them read :

We, burgomasters and regents, of the city of , make

known, that the master of , appearing before us, has de-
clared, upon oath, that the vessel called , of the burden

of about lasts, which he at present navigates, is of the

United Provinces, and that no subject of the enemy have any
part or portion therein, directly nor indirectly ; so may God
Almighty help him. And, as we wish to see the said master
prosper in bis lawful affairs, our prayer is to all the before-
mentioned, and to each of tbem separately, where the said
master shaH arrive with bis vessel and cargo, that they may
please to receive the said master with goodness, and to treat

appendix;

him in a becoming manner, permitting him, upon the as ad toUs
and expenses, in passing and repassing, to pass, navigate, and
frequent the ports, passes, and territories, to the end, to trans-
act his business, where, and in what manner he shall judge
proper : whereof we shall be willingly indebted.
In witness, and for cause whereof, we affix hereto the seal

of this city.

(In the Margin.)

By ordinance of the high and mighty lords the states general
of the United Netherlands.

Treaty with Sweden of 1783.

Art 7. All and every the
subjects and inhabitants of the
kingdom of Sweden, as well as
those of the United States,
shall be permitted to navigate
with their vessels in all safety
and freedom, and without any
regard to those to whom the
merchandises and cargoes may
belong, from any port what*
ever ; and the subjects and in-
habitants of the two states shall
likewise be permitted to sail
and trade with their vessels,
and with the same liberty and
safety, to frequent tbe places,
ports, and havens, of powers,
enemies to both or either of
the contracting parties, with-
out being in any wise molested
or troubled, and to carry on a
commerce not only directly
from the ports of an enemy to
a neutral port, but even from
one port of an enemy to an-

Art. 7. II sera permis a tons
et un chacun des sujets et ha-
bitans du royaume de Suede,
ainsi qu' a ceux des Etats Uais,
de naviguer avec leurs bati-
mens en toute surety et liber-
ty, et sans distinction de ceux
a qui les merchandises et lean
chargemeas appartiendront,
de quelque port que ce soit*
II sera permis Igalement aax
sujets et habitans des deux
etats de naviguer et de n£go-
cier avec leurs vaisseaux et
marchandises, et de frequenter
avec la m€me liberty etsurete,
les places, ports et havres des
puissances ennemies des deux
parties contractantes, ou de
Tune d'elles, sansgtre aocune-
ment inquiltls ni troubles, et
de faire le commerce non
seulement directement des
ports de l'ennemi a un port
neutre, mais encore d'un port

APPENDIX.

3»

other port of an enemy, whe-
ther it be under the jurisdic-
tion of the same or of different
princes. And as it is acknow-
ledged by this treaty, with re-
spect to ships and merchan-
dises, that free ships shall
make merchandise free, and
that every thing which shall
be on board of ships belongi-
ng to subjects of the one or
the other of the contracting
parties, shall be considered as
free, even though the cargo,
or a part of it, should belong
to the enemies of one or both ;
it is, nevertheless, provided,
that contraband goods shall al-
ways be excepted ; which be-
ing intercepted, shall be pro-
ceeded against according to the
spirit of the following articles.
It is likewise agreed, that the
same liberty be extended to
persons who may be on board
a free ship, with this effect,
that although they be enemies
to both or either of the par-
ties, they shall not be taken
out of the free ship, unless
they are soldiers in the actual
service of the said enemies.

Art. 8. This liberty of na-
vigation and commerce shall
extend to all kinds of mer-
chandises, except those only

ennemi a un autre port enne-
mi. ; spit qu'il se trouve sous
la jurisdiction d'un mime ou
de difflfrents princes. Et
comme il est re$u par le pre-
sent traite* par rapport aux na-
vires et aux marchandises, que
les vaisseaux libres rendront
les marchandises libres, et que
Pon regardera comme libre
tout ce qui sera a bord des
navires appartenants auxsujets
d'une ou de 1'autre des parties
contractantes, quand mime le
chargement, ou partie d'ice lui
appartiendroit aux ennemis de
l'une des deux ; bien entendu
nlanmoins que les marchandi-
ses de contreband seront tou-
jours excepte*es ; les quelle*.
Itant intercepted, il sera pro-
cldl conformement a Pesprit
des articles suivants. II est
egalement convenu que cette
mime liberty s'ltendra aux
personnes qui naviguent sur
un vaisseau libre ; de maniere
que quoi qu'elles soient enne*
mies des deux parties ou de
l'une d'elles, elles ne seront
point tirles du vaisseau libre,
si ce n'est que ce fussent des
gens de guerre actuellement
au service des dits ennemis.

Art. 8. Cette liberie* de na-
vigation et de commerce s'l-
tendra a toutes sortes de mar-
chandises, a la reserve seule*

APPENDIX

Which are expressed in the
following article, and ere dis-
tinguished by the name of con-
traband goods :

Art. 9. Under the name of
contraband or prohibited goods*
shall be comprehended arms,
great gnus, cannon balls, ar*
qneboses, muskets, mortars,
bombs, petards, granadoes,
saucisses, pitch balls, carriages
for ordnance, musket rests,
bandoliers, cannon powder,
matches « saltpetre, sulphur,
bullets, pikes, sabres, swords,
morions, helmets, cuirasses,
halberds, javelins, pistols and
their holsters, belts, bayonets,
horses with their harness, and
all other like kinds of arms
mid instruments of war for the
use of troops.

Art. 10. These which fol-
low shall not be reckoned in
the number of prohibited
goods ; that is to say : all
sorts of cloths, and all other
manufactures of wool, flax,
•ilk, cotton, or any other ma-
terials, all kinds of wearing ap-
parel, together with the things
of which they are commonly
made, gold, silver, coined or
uncoined, brass, iron, lead,
copper, latten, coals, wheat,
barley, and all sorts of corn or
pulse, tobacco, all kinds of spi-

nsebt de oeUes (pi font 4s*
primees dana 1'article surras*
et designees sons le nam dn
merchandises de contrebaade :

Art 9. Oncomprendraaoot
ce Dom de marchandwes da
contrebande on defendant, lee
armed, canons, boulets, arque-
buses, mousquets, mortiera,
bombes, petards, grenades*
saucisses, cercles poissls, rf>
flits, fourchettes, bandoulteres,
poudre a canon, me'cbes, sal*
petre, souffre, balles, piques,
sabres, epe*es,morions, casques,
cuirasses, halbardes, javelines,
pistolets et lenrs fourreaux,
baudriers, bayonettes, che-
Vaux avec leurs harnois, et
tons autres semblables genres
d'armes et d'instruments de
guerre servant a I'usage des
troupes.

Art. 10. On ne mettra point
au nombre des marchandises
deTendues ceTIes qui suivenf,
scavoir, toutes sortes des
draps, et tous autres ouvrages
de manufactures de laine, de
lin, de soye, de coton et de
toute autre matiere, tout genie
d'habillement avec les choees
qui servent ordinairement i
les faire ; or, argent monnoyl
ou non monnoyl, etain, fer,
plomb, cuivre, laiton, charbon
a fourneau, bled, orge, et
toute autre sorte de grains et

APPENDIX.

ces, salted and smoked flesh,
salted fish, cheese, butter,
beer, oil, wines, sugar, all
sorts of salt and provisions
which serve for the nourish-
ment and sustenance of man,
all kinds of cotton, hemp, flax,
tar, pitch, ropes, cables, sails,
sail-cloth, anchors, and any
parts of anchors, ship-masts,
planks, boards, beams, and all
sorts of trees and other things
proper for building or repair-
ing ships ; nor shall any goods
be considered as contraband,
which have not been worked
into the form of any instru-
ment or thing for the purpose
of war by land or by sea,
much less such as have been
prepared or wrought up for
any other use : all which shall
be reckoned free goods, as
likewise all others which are
not comprehended and parti-
cularly mentioned in the fore-
going article ; so that they
shall not by aoy pretended in-
terpretation be comprehended
among prohibited or contra-
band goods ; on the contrary,
they may be freely transport-
ed by the subjects of the king
and of the United States, even
to places belonging to an ene-
my, such places only excepted
as are besieged, blocked or
invested ; and those places
Vol. VI. P #

de legumes, b nicotiane, vul-
gatrement appellee tabac,
toutes sortee d'aromates,
chaires salees et fumees, poia-
sons sales, fromage et beurre,
bierre, huile, vins, sucres,
toutes sortes de sels et de
provisions servant a la nourri-
ture et a la subsistance d*s
homines ; tous genres de co-
ton, chanvre, lin, poix, tant
liquide que seche, cordages,
cables, voiles, toiles, propres
a faire des voiles, ancres,
et parties d'ancres quelles
qu'elles puissent 6tre, mats de
navire, planches, madriers,
poutres et toute sorte d'arbres,
et toutes autres choses necea*-
saires pour construire ou pour
radouber les vaisseaux. On ne
regardera pas non plus comme
marchandises de contrebande,
cellos qui n'auront pas pris la
forme de quelque instrument
ou attirail, servant a r usage de
la guerre sur terre ou sur
mer ; encore moins celles qui
sont prdparees ou travailUes
pour tout autre usage. Toutes
ces choses seront censees mar-
chandises libres, de m£me que
toutes celles qui ne sont point
comprises et splcialement de-
signees dans Particle precg-
dent, de sorte qu'elles ne
pourront sous aucune interpre-
tation pretendue d'icelletf,

APPENDIX.

only shall be considered as
such, which are nearly sur-
rounded by one of the belli-
gerent powers.

Art. 11. In order to avoid
and prevent on both sides all
'disputes and discord, it is a-
greed, that in case one of the
parties shall be engaged in a
war, the ships and vessels be-
longing to the subjects or in-
habitants of the other shall be
furnished with sea-letters or
passports, expressing the
name, property, and port of
the vessel, and also the name
and place of abode of the mas-
ter or commander of the said
vessel, in order that it amy
thereby appear that the said
vessel really and truly belongs
to the subjects of the one or
the other party. These pass-
ports, which shall be drawn up
in good and due form, shall be
renewed every time the ves-
sel returns home in the course
of the year. It is also agreed,
that the said vessels, when load-

6tre comprises sous les effete
prohibls, ou de contrebande ;
an contraire elles pourront
6tre Hbrement transport£es
par les sujets du roi et des E-
tats Unis, m£me dans les beax
ennemis, excepts settlement
dans les places assieg^ea, bio*
qules ou investies ; et pour
telles, seroat tenues unique-
mentles places enfoor^es de
pres par quelqu'une des puis>
sances belliglrantes.

Art. 1 1 . Afin d'&arter et de
prevenir de part et <Pautre
toutes sortes de dicussions et
de discorde, tl a £t£ conveno
que dans le cas oft Tune des
deux parties se trouveroit en-
gagle dans une guerre, les
vaisseaux et batimeos appar-
tenants aux sujets on babitaoa
de l'autre devront etre aunis
de lettres de raer ou passe-
ports, exprimant le nom, la
propria et le port du navire,
ainsi que le nom et la demeure
du maitre ou commandant du
dit vaisseau afin qu*il appa-
roisse par la, que le dit vais-
seau appartient rdellement et
veritablement aux . sujets de
1'une ou de l'autre partie.
Ces passeports qui seront
dresses et exp£di& en due et
bonne forme, devront ^gale*
ment £tre renouveltes toutes
les fois que le vaisseau revient

JCPPENDIX.

ed, shall foe provided not only
with sea-letters, hot also whh
certificates containing a parti-
cular account of the cargo, the
place from which the vessel
sailed, and that of her desti-
nation, in order that it may he
known whether they carry
any of the prohibited or con*
traband merchandises men-
tioned in the 9th article of the
present treaty; which certi-
ficates shall be made oat by the
officers of the place from
which the vessel shall depart.

Art. 12. Although the ves-
sels of the one and of the other
party may navigate freely and
with all safety, as is explained
in the 7th article, they shall
nevertheless be bound at all
times when required, to exhi-
bit as well on the high sea as
in port, their passports and
certificates abovementioned.
And not having contraband
merchandise on board for an
enemy's port, they may freely
and without hindrance pursue
their voyage to the place of
their destination. Neverthe-
less, the exhibition of papers
shall not be demanded of mer-
chant ships under the convoy
of vessels of war, hut credit

chez lei dans le cours de Pan.
II est encore convenu que ces
dits vaisseaux charges devront
6tre pourvtis non seulement de
lettres de mer, mais auasi de
certificats contenant les de-
tails de la cargaison, le lieu
d*oil le vaisseau est parti et
celui de sa destination, afin
que Ton puisse connoitre s'ils
ne portent aucune des mar-
chandises deTendues ou de con-
trebande specifiers dans Par-
ticle 9 du present traits, les-
quels certificats seront egale-
ment expedils par les officiers
du lieu d'od les vaisseau sor-
ttra.

Art. 12. Quoique les vais-
seaux de Tune et de 1'autre
partie poorront naviguer li-
hrementet avec toute surety;
comme il est explique* a Parti-
cle 7, its seront nlanmotns to-
nus toutes les fois qu'on Pexi-
gera, d'exhiber tant en pleine
mer que dans les ports, leurs
passe-ports et certificats ci-
dessus mentioning. Et n'ayaat
pas charge des marcbandiaes
de contrebande pour un port
eonemi, ils pourront librement
et sans emp6chemeot pour*
suivre ieur voyage vers le lieu
de leur destination. Cependant
on n'aura point le droit de de-
mander ['exhibition des pa-
piers aux navires marchandt

APPENDIX*

shall be giten to the word of
the office commanding the
convoy.

Art. 13. If on producing
the said certificates, it be dis-
covered that the veasel car-
ries some of the goods which
ate declared to be prohibited
or contraband, and which are
consigned to an enemy's port,
it shall not however be law-
ful to break up the hatches
of such ships, nor to open
any chest, coffers, packs,
casks, or vessels, nor to re-
move or displace the smallest
part of the merchandises, until
the cargo has been landed in
the presence of officers ap-
pointed for the purpose, and
until an inventory thereof has
been taken ; nor shall it be
lawful to sell, exchange, or
alienate the cargo, or any part
thereof, until legal process
shall have been had against
the prohibited merchandises,
and sentence shall have pass-
ed declaring them liable to
confiscation, saving neverthe-
less as well the ships them-
selves, as the other merchan-
dises which shall have been
found therein, which, by vir-
tue of this present treaty, are
to be esteemed free, and which
are not to be detained on pre*

convoy& par. dea vaiaseaux de
guerre ; mais on ajoutera fbi
a la parole de l'officier eom~
mandantle convoi.

Art. 13. Si en produisant
les dits certificate il fat dtoou-
vert que le navire porte
quelques une de cea effete qui
sont declares prohiWs oade
contrebande, et qui sont con-
signs pour un port ennemi, fl
ne sera cependant pas permis
de rompre les Icoutilles des
dits navires, ni d'ouvrir au-
cune caisse, coffre, malle, bal-
lot et tonneau, ou d'en d£pla-
cea, ni d'en d&ourner la moin-
dre partie des merchandises,
jusqu' a ce que la cargaison
ait £t£ mjse a terre en pre-
sence des officiers prlposds a
cet Iffet, et que l'inventaire en
ait 6t6 fait. Encore ne sen*
t-il pas permis de rewire,
^changer ou aligner la car-
grison ou quelqoe partie
d'icelle, avant qu'oti aarapra-
c£d£ llgalement an snjet des
marchandises prohitees et
qu'elles auront &6 declatges
confiscables par sentence : a
la reserve nlanmoins, tant dea
navires m€me que des autre*
marchandises qui y auront &€
trouv&s et qui en vertu da
present traits doivent Stre
censles libres; lesquelles ne
peuvent €tre retenuei sons

APPENDIX.

tence of their haying been
loaded with prohibited mer-
chandise, and much less con-
fiscated as lawful prize. And
in case the contraband mer-
chandise be only a part of the
cargo, and the master of the
vessel agrees, consents, and
offers to deliver them to the
vessel that has discovered
them, in that c&se the latter,
after receiving the merchan-
dises which are good prize,
shall immediately let the ves-
sel go, and shall not by any
means hinder her from pur-
suing her voyage to the place
of her destination. When a
vessel is taken and brought
into any of the ports of the
contracting parties, if upon
examination she be found to
be loaded only with merchan-
dises declared to be free, the
owner or he who has made
the prize, shall be bound to
pay all costs and damages to
the master of the vessel un-
justly detained.

Art. 14. It is likewise a-*
greed, that whatever shall be
found to be laden by the sub-
jects of either of the two con-
tracting parties, on a ship be-
longing to the enemies of the
other party, the whole effects,
although not of the number of
those declared contraband,

pretexte qu'eltes ont £t£ char-
ges avec des merchandises
dlfendues, et encore moins
&tre confisqules comme une
prise legitime. Et suppose que
les dites marchandises de con-
trebande, ne faisant qu'une
partie de la charge, le patron
du navire agr£at, consentit et
offrit de les livrer au vaisseau
qui les aura dlcouvertes ; en
ce cas, celui-cy, apres avoir
recu les marchandises, de
bonne prise, sera tenu de lais-
ser aller aussi-tot le batiment,
et en l'emp£chera en aucune
maniere de poursuivre sa
route vers le lieu de sa desti-
nation. Tout navire pris et
amenl dans un des ports des
parties contractantes, sous pre-
texte de contrebande, qui se
trouve par la visite fait n'£tre
charge que de marchandises
declares libres, l'armateur ou
celui qui aura fait la prise,
sera tenu de payer tous 1c*
frais et dommages au patron
du navire retenue injustement.
Art. 14. On est Igalement
convenu que tout ce qui se
trouvera charge par les sujets
d'une des deux parties dans un
vaisseau appartenant aux en-
nemis de l'autre partie, sera
confisque en entier, quoique
ees effets ne soient pas au
nombre de ceux declares de

APPENDIX.

shall be confiscated as if they
belonged to the enemy, ex-
cepting, nevertheless, such
goods and merchandises as
were put on board before the
declaration of war, and even
six months after the declara-
tion, after which term none
shall be presumed to be igno-
rant of it ; which merchandi-
ses shall not in any manner be
subject to confiscation, but
shall be faithfully and speci-
fically delivered to the own-
ers, who shall claim or cause
them to be claimed before
confiscation and sale, as also
their proceeds, if the claim be
made within eight months, and
could not be made sooner af-
ter the sale, which is to be
public : provided, neverthe-
less, that if the said merchan-
dises be contraband, it shall
not be in any wise lawful to
carry them afterwards to a
port belonging to the enemy.

contrebande, comme si ceseT*
fets appartenoient a l'ennemi
m£me ; a l'exception nean-
moins des effets et marchan-
dises qui auront £t£ chargSes
sur des vaisseaux ennemis a-
vant la declaration de guerre,
et m€me six mois apres la de-
claration, apres lequel terme,
Ton ne sera pas cense* d'avoir
pu 1'ignorer ; les quelles mar-
chandises ne seront en ancune
maniere sujettes a confiscatioo,
mais seront rendues en na-
ture fidelement aux propri€-
taires qui les r£clameront on
feront reclamer avant la con-
fiscation et vente ; comae
aussi leur provenu, si la recla-
mation ne pouvoit se faire que
dans 1'intervalle de huit mois
apres la vente, laquelle doit
etre publique ; bien entendn
neanmoins, que si les dites
marchandises sont de contre-
bande, il ne sera nullemeat
permis de les transporter en-
suite a aucun port apparte-
nant aux ennemis.

Treaties with Prussia, of 1785 and 1799.

Art. 12. If one of the con-
tracting parties should be en-
gaged in war with any other
power, the free intercourse
and commerce of the subjects
or citizens of the party ^e-

Art. 12. Si Tune des parties
contractantes &oit en guerre
avec une autre puissance, la
lihpe correspondance et le
commerce des citoyens ou en-
jets de la partie qui demeure

APPENDIX.

maining neuter with the belli-
gerent powers, shall not be in-
terrupted. On the contrary,
in that case as in full peace,
the vessels of the neutral par-
ty may navigate freely to and
from the ports, and on the
coasts of the belligerent par-
ties, free vessels making free
goods, insomuch, that all things
shall be adjudged free which
shall be on board any vessel
belonging to the neutral party,
although such things belong to
an enemy of the other ; and
the same freedom shall be ex-
tended to persons who shall
be on board a free vessel, al-
though they should be enemies
to the other party, unless they
be soldiers in actual service of
such enemy.

Art. 13. And in the same
case of one of the contracting
parties being engaged in war
with any other power, to pre-
vent all the difficulties and
misunderstandings that usually
arise respecting the merchan-
dise heretofore called contra-
band, such as arms, ammuni-
tion, and military stores of
every kind, no such articles
carried in the vessels, or by
the subjects or citizens of one
of the parties to the enemies

neutre envers les puissances
belliglrantes, ne seront point
interrompus. Au contraire,
et dans ce cas, comine en
pleine paix, les vaisseaux de
la partie neutre, pourront na-
viguer en toute stirete* dans les
ports et sur les cotes des puis-
sances belliggrantes, les vais-
seaux libres rendant, les mar-
chandises libres, en tant qu'on
regardera comme libre tout ce
que sera a bord d'un navire
appartenant a la partie neutre,
quand m€me ces eifets appar-
tiendroienl a 1'ennemi de l'au-
tre. La meme liberte s'lten-
dra aux personnes qui se trou-
veront a bord d'un vaisseaux
libre, quand m€mes elles se-
roient ennemis de 1'autre par-
tie, excepts que ce fussent des
gens de guerre, actuellement
au service de Tennerm.

Art. 13. Dans le cas od Tune
des parties contractantes se
trouveroit en guerre avec une
autre puissance, il a £te conve-
nu que pour prevenir les diffi-
cult^ et les discussions qui
surviennent ordraairement par
rapport aux marcbandises ci-
devant appellees de contre-
bande, telles qu'armes, mu-
nitions, et autres provisions
de guerre de toute espece,
aucun de ces articles, char-
ges a bord des vaisseaux des

APPENjDML

of the other, shall be deemed
contraband, so as to induce
confiscation or condemnation,
and a loss of property to indi-
viduals. Nevertheless, it shall
be lawful to stop such vessels
and articles, and to detain them
for such length of time as the
captors may think necessary to
prevent the inconvenience or
damage that might ensue from
their proceeding -r paying,
however, a reasonable com-
pensation for the loss such ar-
rest shall occasion to the pro-
prietors : and it shall further
be allowed to use, in the ser-
vice of the captors, the whole,
or any part of the military
stores so detained, paying the
owners the full value of the
same, to be ascertained by the
current price at the place of
its destination. Bat in the case
supposed, of a vessel stopped
for articles heretofore deemed
contraband, if the master of the
vessel slopped will deli re r out
the goods supposed to be of
contraband nature, he shall be
admitted to do it, and the ves-
sel shall not in that case be
carried into any port, nor fur-
ther detained, but shall be al-
lowed to proceed on her voy-
age.

citoyens ou sujets de 1'aae
des parties, et destines poor
l'ennemi de l'autre, ne sera
cens£ de contrebande, au point
d'impliquer confiscation on
condamnation, et d'entrainer
la perte de la proprtete des in-
dividus. Nlanmoins il sera
permis d'arreter ces sortes de
vaisseaux et effete et de lea re-
tenir pendant tout le temps que
le preneur croira necessaire
pour prevenir les inconvenieas
et le dommage qui pourroient
en resulter autrement ; mai*
dans ce cas on accordera one
compensation raisonable pour
les pertes qui auront £te occa-
sionnles par la saisie. Et il
sera permis en outre aux pre-
neurs d'employer a leor ser-
vice, en tout, ou en parti e, les
munitions militaires d&enoes,
en payant aux proprifctaires la
pleine valeur, a determiner
sur le prix qui aura conn a
l'endroit de leur destination ;
mais que dans le cas enonct,
d'un vaisseau arrets pour des
articles ci-devant appell£s con-
trebande, si le maitre du navire
consentoit a delivrer les mar-
chandises suspectes, il aura
liberty de le faire, et le navire
ne sera plus amenl dans le
port, ni dltenu plus longtemps,
mais aura toute liberty de
poursuivre sa route.

APPENDIX.

Art. 14. And in the same
case where one of the parties
is engaged in war with another
power, that the vessels of the
neutral party may he readily
and certainly known, it is
agreed, that they shall be pro-
vided with sea-letters, or pass-
ports, which shall express the
name, the property, and bur-
den of the vessel, as also the
name and dwelling of the mas-
ter, which passports shall be
made out in good and due
form, (to be settled by con-
ventions between the parties
whenever occasion shall re-
quire,) shall be renewed as
often as the vessel shall return
into port ; and shall be -exhi-
bited whensoever required, as
well in the open sea as in port.
But if the said vessels be under
convoy of one or more vessels
of war, belonging to the neu-
tral party, the simple declara-
tion of the officer commanding
the convoy, that the said ves-
sel belongs to the party of
which he is, shall be consider-
ed as establishing the fact, and
shall relieve both parties from
the trouble of further exami-
nation.

Art. 14. Dans le cas oil
Tune des deux parties contrao-
tantes se trouveroit engaged
dans une guerre avec une au-
tre puissance, et afin que les
vaisseaux de la partie neutre
soyent promptement et stire-
ment reconnus, onestconvenu
qu'ils devront €tre munis de
lettres de mer ou passe-ports*
exprimant le nom, le proprie"-
taire, et le port du navire, atnsi
que le nom et la demeure du
maltre. Ces passe-ports, qui
seront expldies en bonne et
due* forme (a determiner par
des conventions entre les par-
ties, lorsque r occasion le re*
querra) devronjt toe renou-
velles toutes les fois que le
vaisseau retournera dans son
port, et seront exhibea &
chaque requisition tant en
pleine mer que dans le port.
Mais si le navire se trouve
sous le convoi d'un ou pin-
sieurs vaisseaux de guerre
appartenants a la partie neutre,
il suffira que l'officier com-
mandant du convoi declare que
le navire est de son parti
moyennant quoi cette simple
declaration sera censee Itablir
le fait, et dispensera les deux
parties de toute visite ulte*-
rieure.

Vol- VI.

APPENDIX.

Art. 15. And to prevent en-
tirely all disorder and violence
in such cases, it is stipulated,
that when the vessels of the
neutral party, sailing without
convoy, shall be met by any
vessel of war, public or pri-
vate, of the other party, such
vessel of War shall not ap-

Art. 15. Pour pre>entr ea-
tierement tout d&ordre et teute
violence en pareil cat, il a etf
stipute que lorsque des Dartre*,
de la partie neutre, navigaas
sans convoi, rencontreroat
quelque vaisseau de guerre
public ou particulier de 1'aatie
partie, le vaisseau de guerre

proach within cannon shot of n'approchera le navire neutre
the said neutral vessel, nor qu'au dela de la portee da

send more than two or three
men in their boat on board the
stole, to examine her sea-let-
ters or passports. And all
persons belonging to any ves-
sel of war, public or prirate,
who shall molest or injure, in
any manner whatever, the

canon, et n'enverra pas plus
de deux ou trois homines dans
sa chaloupe a bord, pour exa-
miner les lettres de mer ou
passe -ports. Et toutes les per-
sonnesappartenantes a quelque
vaisseau de guerre public ou
particulier, qui molesteront ou

people, vessels, or effects of insulteront en quelque mamete
the other party, shall be re- quecesoit r£quipage,les vais-
sponsible in their persons and seaux ou effets de r autre par-
property or damages and in- tie, seront responsables en
terest, sufficient security for leurs personnes et en lenrs
which shall be given by all biens, de tons doomages et
commanders of private armed inttrets ; pour lesquels il sera
vessels before thej are com- donne* caution suffisante par

missioned.

tous les commandans de vast-
seaux armes en course, avast
qu'ib receives* leurs conuags-
sions.

Treaty with Prussia of 1799.

Art. 12. Experience having Art. 12. Inexperience ayant
proved, that the principle a- demontrl, que le principe a-
dopted in the twelfth article of doptl dans Particle 12, da

APPENDIX.

tfcc treaty of 1785, according
to which free ships make free
goods, has not been sufficient-
ly respected during the two
laat wars, and especially in
that which still continues, the
two contracting parties pro-
pose, after the return of a ge-
neral peace, to agree either
separately between them-
selves, or jointly with other
powers alike interested, to
concert with the great mari-
time powers of Europe, such
arrangements and such per-
manent principles, as may
serve to consolidate the liber-
ty and the safety of the neutral
navigation and commerce in
future wars. And if, in the
interval, either of the con-
tracting parties should, be en-
gaged in a war, to which the
other should remain neutral,
the ships of war and privateers
of the belligerent power shall
conduct themselves towards
the merchant vessels of the
neutral power, as favourably
as the course of the war then
existing may permit, observ-
ing the principles and rules of
the law of nations, generally
acknowledged.

traitt de 1785, selon lequel Its
vaisseaux libres rendent aussi
Us marchandises libres, n'a pas
€t€ suffisament respects dans
les deux dernieres guerres, et
nommlmentdans celle qui dure
encore, les deux parties con-
tractantes se reservent de s'en-
tendre apres Ie retoor de la
paix glnlrale, soit slparement
entr'elles, soit conjointement
avec d'autres puissances co-
interessls pour concerter
avec les grandes puissances,
maritimes de 1'Eorope, tela ar-
rangements et tela principea
permanens, qui puissent servir
a consolider la liberty et la
sfiretl de la navigation etdu
commerce neutres dans les
guerres futures. Et si, pen-
dant cet intervalle, Tune dea
parties contractantes se trouve
engagle dans une guerre a la-
quelle 1'autre reste neutre, les
vaisseaux de guerre et les ar-
mateurs de la puissance belli-
gerente, se comporteront, &
regard de batimens marcbands
de la puissance neirtre, aussi
favorablement que la raison
de guerre, pour Iors existante
pourra lepermettre, en obser-
vant les principes et les regies
du droit des gens g£n€ralement
reconnus.

5* APPENDIX.

NOTE No. TV.

TO TIfE AMIABLE ISABELLA*

Copy of the Convention with the Court of London, signed at $L
Petersburg, the bth (\lth) of June, 1801.

Id the name of the Most Holy and Undivided Trinity*

The mutual desire of his Majesty the Emperor of all the Ros-
si as, and of his Majesty the King of the united kingdom of
Great Britain and Ireland, being not only to come to an under-
standing between themselves with respect to the difference*
which have lately interrupted the good understanding and
friendly relations which subsisted between the two States ; bat
also to prevent, by frank and precise explanations upon the na-
vigation of their respective subjects, the renewal of similar
altercations and troubles which might be the consequence of
them ; and the object of the solicitude of their said majesties
being to settle, as soon as can be done, an equitable arrange*
ment of those differences, and an invariable determination of
their principles upon the rights of neutrality, in their applica-
tion to their respective monarchies, in order to unite more
closely the ties of friendship and good intercourse, of which
they acknowledge the utility and the benefits, have named and
chosen for their plenipotentiaries, viz. his Majesty the Empe-
ror of all the Russias, the Sieur Niquita, Count de Panen, his
counsellor, &c. his Majesty the King of the united kingdom of
Great Britain and Ireland, Alleyen, Baron St. Helens, privy
counsellor, &c. who, after having communicated their roll
powers, and found them in good and due form, have agreed
upon the following points and articles :

Art. I. There shall be hereafter between his Imperial Ma-
jesty of all the Russias, and his Britannic Majesty, their sub-
jects, and the states and countries under their domination, good
and unalterable friendship and understanding ; and all the poli-
tical, commercial, and other relations of common utility be-

APPENDIX. 53

tween the respective subjects, shall subsist as formerly, with*
out their being disturbed or troubled in any manner whatever.

Art. II. His Majesty the Emperor and his Britannic Majesty
declare, that they will take the most especial care of the execu-
tion of the prohibitions against the trade of contraband of their
subjects with the enemies of each of the high contracting
parties.

Art. HI. His Imperial Majesty of all the Russias, and his Bri*
tannic Majesty, having resolved to place under a sufficient safe-
guard the freedom of commerce and navigation of their sub-
jects, in case one of them shall be at war whilst the other shall
be neuter, have agreed :

1. That the ships of the neutral power shall navigate freely
to the ports and upon the coasts of the nations at war.

2. That the effects embarked on board neutral ships shall be
free, with the exception of contraband of war, and of enemy's
property ; and it is agreed not to comprise in the number of
the latter, the merchandise of the produce, growth, or manu-
facture of the countries at war, which should have been ac-
quired by the subjects of the neutral power, and should be
transported for their account, which merchandise cannot be
excepted in any case from the freedom granted to the flag of
the said power.

3. That in order to avoid all equivocation and misunder-
standing of what ought to be qualified as contraband of war, his
Imperial Majesty of all the Russias and his Britannic Majesty
declare, conformably to the 11th article of the treaty of com-
merce concluded between the two crowns on the 10th (21st)
February, 1797, that they acknowledge as such only the fol-
lowing objects, viz. cannons, mortars, fire arms, pistols; bombs,
grenades, balls, bullets, firelocks, flints, matches, powder, salt-
petre, sulphur, helmets, pikes, pouches, swords, sword belts,
saddles and bridles, excepting, however, the quantity of the
said articles w hich may be necessary for the defence of the
ship and of. those who compose the crew ; and all other arti-
cles whatever not enumerated here, shall not be reputed war-
like and naval ammunition, nor be subject to confiscation, and
of course shall pass freely, without being subjected to the

64 APPENDIX.

smallest difficulty, unless they be considered enemy's property
in the above settled sense. It is also agreed, that which is sti-
pulated in the present article shall not be to the prejudice of
the particular stipulations of one or the other crown with other
powers, by which objects of a similar kind should be resetted,
prohibited, or permitted.

4. That in order to determine what characterises a block-
aded port, that determination is given only to that where there
is, by the disposition of the power which attacks it with ships
stationary, or sufficiently near, an evident danger in entering.

5. That the ships of the neutral power shall not be stopped
but upon just causes and evident facts ; that they be tried with*
out delay, and that the proceeding be always uniform, prompt,
and legal.

In order the better to ensure the respect due to these stipu-
lations, dictated by the sincere desire of conciliating all interests,
and to give a new proof of their loyalty and love of justice, the
high contracting parties enter here into the most formal en-
gagement to renew the severest prohibitions to their captains,
whether of ships of war or merchantmen, to take, keep, or
conceal on board their ships any of the objects which, in the
terms of the present convention, may be reputed contraband,
and respectively to take care of the execution of the orders
which they shall have published in their admiralties, end
wherever it shall be necessary.

Art. IV. The two high contracting parties, wishing to pre-
vent all subject of dissention in future by limiting the right of
search of merchant ships going under convoy to the sole causes
in which the belligerent power may experience a real prejti*
dice by the abuses of the neutral flag, have agreed,

1. That the right of searching merchant ships belonging to
the subject of one of the contracting powers, and navigating
under convoy of a ship of war of the said power, shall only be
exercised by ships of war of the belligerent party, and shall
never extend to the fitters out of privateers, or other vessels,
which do not belong to the imperial or royal fleet pf their
majesties, but which their subjects shall have fitted out for
war.

APPENDIX. 55

£. That the proprietors of all merchant ships belonging to
the subjects of one of the contracting sovereigns, which shall
be destined to sail under convoy of a ship of war, shall be re-
quired, before they receive their sailing orders, to produce to
the commander of the convoy their passports and certificates,
or sea-letters, in the form annexed to the present treaty.

3. That when such ship of war, and every merchant ship
under convoy, shall be met with by a ship or ships of war of
the other contracting party, who shall then be in a state of war,
in order to avoid all disorder, they shall keep out of cannon
shot, unless the situation of the sea, or the place of meeting,
render a nearer approach necessary ; and the commander of
the ship of the belligerent power shall send a sloop on board
the convoy, where they shall proceed reciprocally to the veri-
fication of the papers and certificates that are to prove on one
part, that the ship of war is authorised to take under its escort
such or such merchant ships of its nation, laden with such a
cargo, and for such a port ; on the other part, that the ship of
war of the belligerent party belongs to the imperial or royal
fleet of their majesties.

4. This verification made, there shall be no pretence for
any search, if the papers are found in due form, and if there
exists no good motive for suspicion. In the contrary case, the
captain of the neutral ship of war (being duly required thereto
by the captain of the ship of war, or ships of war, of the belli-
gerent power) is to bring to and detain his convoy during the
time necessary for the search of the ships which compose it,
and be shall have the faculty of naming and delegating one or
more officers to assist at the search of the said ships, which
shall be done in his presence on board each merchant ship,
conjointly with one or more officers selected by the captain of
the ship of the belligerent party.

6. If it happen that the captain of the ship or ships of war of
the power at war, having examined the papers found on board,
and having interrogated the master and crew of the ship, shall
see just and sufficient reason to detain the merchant ship, in
order to proceed to an ulterior search, he shall notify that in*

56 APPENDIX.

tention to the captain of the convoy, who shall have the power
to order an officer to remain on board the ship thus detained*
and to assist at the examination of the cause of her detention.
The merchant ship shall be carried immediately to the nearest
and most convenient port belonging to the belligerent power,
and the ulterior search shall be carried on with all possible
diligence.

Art. V. It is also agreed, that if any merchant ship thus con-
voyed should be detained without just and sufficient cause, the
commander of the ship or ships of war of the belligerent power,
shall not only be bound to make to the owners of the ship and
of the cargo a full and perfect compensation for all the losses,
expenses, damages, and costs, occasioned by such a detention,
but shall farther be liable to an ulterior punishment for every
act of violence or other fault which he may have committed,
according as the nature of the case may require. On the other
hand, no ship of war with a convoy shall be permitted, under
any pretext whatsoever, to resist by force the detention of a
merchant ship or ships, by the ship or ships of war of the bel-
ligerent power ; an obligation which the commander of a ship
of war, with convoy, is not bound to observe towards priva-
teers and their fitters out.

Art. VI. The high contracting powers shall give precise and
efficacious orders, that the sentences upon prizes made at sea
shall be conformable with the rules of the most exact justice and
equity ; that they shall be given by judges above suspicion,
and who shall not be interested in the matter. The govern-
ment of the respective States shall take care that the said sen-
tences shall be promptly and duly executed, according to die
forms prescribed. In case of the unfounded detention, or
other contravention of the regulations stipulated by the present
treaty, the owners of such a ship and cargo shall be allowed
damages proportioned to the loss occasioned by such detention.
The rules to observe for these damages, and for the case of
unfounded detention, as also the principles to follow lor the
purpose of accelerating the process, shall be the matter of ad*
ditional articles, which the contracting parties agree to settle
between them, and which shall have the same force and validi-

APPENDIX. 57

tyas if they were inserted in the present act. For this effect,
their Imperial and Britannic Majesties mutually engage to put
their hand to the salutary work, which may serve for the com-
pletion of these stipulations, and to communicate to each other
without delay, the views which may be suggested to them by
their equal solicitude to prevent the least grounds for dispute
in future.

VII. To obviate all the inconveniences which may arise from
the bad faith of those who avail themselves of the flag of a
nation without belonging to it, it is agreed to establish, for an
inviolable rule, that any vessel whatever, to be considered as
the property of the country the flag of which it carries, must
have on board the captain of the ship, and one half of the crew
of the people of that country, and the papers and passports in
due and perfect form ; but every vessel which shall not ob-
serve this rule, and which shall infringe the ordinances publish-
ed on that head, shall lose all rights to the protection of the
contracting powers.

VIII. The principles and measures adopted by the present
act, shall be alike applicable to all the maritime wars in which
one of the two powers may be engaged whilst the other remains
neutral. These stipulations shall, in consequence, be regard-
ed as permanent, and shall serve for a constant rule to the con-
tracting powers in matter of commerce and navigation.

IX. His Majesty the King of Denmark, and his Majesty the
King of Sweden, shall be immediately invited by his Imperial
Majesty, in the name of the two contracting parties, to accede
to the present convention, and at the same time to renew and
confirm their respective treaties of commerce with his Britan-
nic Majesty ; and his said majesty engages, by acts which shall
have established that agreement, to render and restore to each
of these powers, all the prizes that have been taken from them,
as well as the territories and countries under their domination,
which have been conquered by tbe arms of his Britannic Ma-
jesty since the rupture, in the state in which those possessions
were found, at the period at which the troops of his Britannic
Majesty entered them. The orders of bis said majesty for the

Vol. VI. H

58 APPENDIX.

restitution of those prizes and conquests shall be imnediikfy
expedited after the exchange of the ratification of the acts bj
which Sweden and Denmark shall accede to the pweai
treaty.

X. The present convention shall be ratified by the two at-
tracting parties, and the ratifications exchanged at St Peten-
burgh in the space of two months at farthest, from the day of
the signature. In faith of which, the respective plenipoten-
tiaries have caused to be made two copies perfectly stmilar,
signed with their bands, and have sealed with their arms.
Done at St. Fetersburgh the 5th (17th) June, 1801.

(L. S.) N. Count De Pin.

(L. S.) St. Helehs,

Formula of the Passports and Sea-Letters which ought to ht Mr
vered in the respective Admiralties of the States of fat*
High Contracting Parties to the Skips of War, and Msnkat
Vessels, which shall sail from them, conformable to AM JT
of the present Treaty.

Be it known, that we have given leave and permission to

N , of the city or place of N , master or condactorof

the ship N , belonging to N , of the port of N — >

of tons, or thereabouts, now lying in the port or harbour

of , to sail from thence to N , laden with N — -, •

account of N , after the said ship shall have been Ttfiri

before its departure in {he usual manner by the officers if

pointed for that purpose ; and the said N , or such other

as shall be vested with powers to replace him, shall be oblip
to produce in every port or harbour which he shall enter wi
the said vessel, to the officers of the place, the present license'
and to carry the flag of N— , during his voyage.

In faith of which, to

APPENDIX. 59

NOTE No. V.

TO THE CASE OF THE BELLO CORRUNE8, ante, p. 156.

Decision du Conseil des Prises sur Us Precautions Conservatoires
du Produit des Prises.

An Dom de la republique Francaise, une et indivisible, le con-
seil a rendu la decision suivante :

Vu le mdmoire prdsente* an conseil par le commissaire gene-
ral des relations commerciales de sa majesty Danoise pres la re*-
. publique Francaise ;

Vu les conclusions du commissaire da gouvernement laissees
cejourd'hui sur le bureau, et dont la teneur suit :

Le commissaire-gene'ral des relations commerciales de sa
majestd Danoise a prlsente* an conseil des prises, le IS floreal
present mois, un mdmoire par lequel il demande la mise en
suretd on le cautionnement du produit des rentes, dans les con*
% testations sur la validity des prises Danoises, antdrieure au 4
nivose dernier, sans excepter celles qui se trouvaient pendan-
tes au tribunal de cassation. II se dit particulierement charge"
des intdrets des ndgocians Danois.

J'ai pris connaissance de ce memoir e, d'apres 1 'invitation que
le conseil m'a faite, par sa deliberation du 23 floreal, de donner
mes conclusions par dcrit, conformdment a Particle 13 de Par-
r£td des consuls, du 6 germinal an 8, contenant rdglement sur
la maniere de statuer relativement aux prises maritimes.

Avant de m'occuper de la demande, il m'a paru important
d' examiner si le commissaire Danois avait quality pour la former.

Ce commissaire est un agent politique. Des qu'il est re-
connu par le gouvernement francais, il peut incontestablement
remplir les fonctions attachdes a son mandat ; mais, pent-il, par
des actions ou par des demandes, intervenir dans des contesta-
tions particulieres, mues entre des ndgocians Frangais et des
ndgocians de sa nation ?

L'article 13 de l'arrt'td du 6 germinal, n'admet que les par-

*0 APPENDIX

ties ou leors dtfenseurs qui jostifieront pr&kbtanent de lew
droits et de leors pouvoirs.

Le commissaire Danois ne se montre pas poor *on into*
propre, mais comme charg* des inttrlts d'autrui. II n'estpriol
partie ; il ne pretend exercer que le ministere de detemeiir.
Justifie-t-il de bod droit et de son pouvoir ?

11 est vraisemblable qu'il n'agit qu'en vertu de son titre k
commissaire-glneral des relations commerciales. II est pen-
ble qu'on l'ait autorise, par ce titre, a donner une attention jar-
ticuliere aux contestations dans lesquelles ii se ditching da
interets des nlgociaos Danois.

Mais tout titre, que le commissaire Danois ne tiendraitqae
de son gouveroetnent, ne saurait le rendre le veritable repf
sentant des parties. Au gouvernement appartient la protect
et aux parties seules, la propria. Un propri&aire peat dis-
poser de son bien et exercer ses droits par lui-m£me ou par afr
trui. Mais, cbacun eHant arbitre et regulateur de $a propre
fortune, il n'est libre a qui que ce soit d'intervenir daailes*
faires d'un autre, s'ii n'en a re9U de lui le pouvoir. La m
sion g^nerale donn«5e au commissaire Danois par son gonveraia,
pour le charger de veiller a i'intfret des negocians de sanation
et sur-tout de ceux qui ont essuyl des prises, ne suffirait done
jamais pour ^tablir ce commissaire mandataire, proprementdit,
de cbacun de ses nlgocians Dans les principes du droit poli-
tique, la mission du commissaire Danois est essentielleneot li-
mine aux bons offices d'un protecteur qui recommaode, et ne
s'ltend pas aux actes d'un fonde de pouvoir qui regit oa qai dis-
pose.

Je conviens qu'on droit, plus ancien et plus sacrl que le droit
politique, je veux dire le droit social, autorise toat homme »
suivre les affaires d'un absent qui ne connaft pas sa situation
personnelle, et qui a besoin des secours spontanea de cette
bienveillance naturelle dont le germe n'a pu £tre eotierement
Itouffl par nos vices, et dont le droit civil s'honore de sane-
tionner les effets.(l)

(1) Digeste, liv. HI. tit. 6. De negotiis gestis, loi: hoc edictmni
rium est, qnoniam magna utilitas abscntium versatnr, ne indefenfl— 4*°*
anWr.

APPENDIX. 61

Il-alte reconnu, dans tons lea temps et chez tons les peuple*
polices, qu'un homme, £ Fiasco de sod semblable, peat lai faire
da bien, et qae s'il n'est jamais permis de faire le prejudice
d'an autre, il Test toujoars de cootribaer a son avantage,
quoiqo'il n'eo ait pas donnl le mandat.(l)

Le commissaire Daoois, i deYaut de tout mandat particulier
oa special, poorrait peut-6tre se preraloir de ces principes
pour justifier les d-marches qu'il fait, aupres du conseil des
prises, dans la cause ou dans les affaires de ses compatriotes
absens* Qui les deTendra, s*il ne les defend pas, et si par lear
eloignement ou par d'autres circonstances, ils sont dans Tim*
possibility de se deTendre eux-m£mes ?

Cependant, comme, dans Fltat de nos socie*t£s, il importe au
maintien de 1'ordre public et a la tranquillity, ainsi qu'a la stire-
te* des particuliers, que les actions en justice ne soient pas po-
pulates * il est de maxime comtante et universelle que l'inte>et
seul est le prmcipe de Taction, et qu'il faut 6tre partie ou muni
d'un pouvoir de la partie, pour pouvoir intervenir dans un li-
tige. On a cru qu'il Itait nlcessaire de pre>enir les incursions
dangereuses que des esprits entreprenans ou inquiets peuvent
fiure dans des choses qui ne les concernent pas. On a cru en-
core que, pour arr£ter les indiscretions d'un faux zele, il Itait
utile de prescrire des limites a la bienfaisance m£me.

Mais on a Itabli, pres toutes les administrations et tous les
tribunaiix, un ministere public, connu aujourd'hui, en France
sousle nom de commissaire du gouvernement, qui est le d£fen-
seur-ne* de tous ceuxqui n'en ont point, qui est partie princi-
pal dans les affaires importantes, et partie jointe dans toutes.
Cette institution admirable, qui manquait aux ancieos, est une
barriere contre les surprises, les de*nis de justice, les violences
et les abas. La partie publique agit, et tous les droits sont
conserves. Elle veille, et tous les citoyens sont tranquilles.
Elle exerce toutes les actions du public. Elle est la vive-voix

(2) Si quis absentia negotia gesserit, licet ignorantis, tamen qoidquid uti-
liter in rem ejus impendent... habeat eo nomine actionem. Lib. II. ibid.
Sufficit, si utiliter gessit Lib. X.

62* APPENDIX.

du faible et du pauvre. £Ue repseseate les abte» ; et,
nous, une de ses principles fonctions, selon le temoigosge ds
savant et vertueux d'Aguesseau, eat de faciliter Pacces de la
justice aux strangers, de proposer leur defense, de leor ofnr
un appui, et de se rendre a leur egard le garant de la lnjwfcf
rationale.

Le commissaire Danois ne doit done poiat s'alavmer* aije re-
clame les regies qui oe penaetteot qu'aux parties oil a leurs
fondls de pouvoirs d'exercer des actions et de former des de-
mand es. L'int€r£t de protection, qu'il doit a ses- compatriotes,
suffit pour l'autoriser a eelairer la religion des meaabrea de
conseil par des notes, par des instructions, par des- mejboires.
Jamais on ne doit* dldaiguer les moyens de coaaattre la verM.
De quelque part qu'eHe vienne, elle a des droits suf Peeprit et
sur le co?ur des homines.

En ma quality de commissaire du gouvernement, je svis par-
ticulierement oblige de faire valoir les exceptions rarorables
aux strangers qui sont forces de plaider en France, et d'encon-
rager, par rimpartialite' de mon ministere, des hommes traiiws
hors du lieu de leur naissance et de leurs habitudes, des
hommes aux-quels il importe de persuader que rien n*est pos-
sible de ce qui ne serait pas juste. 11 n'est point de Francais
qui ne me dlsavouat si je professais d'autres principes. Notre
nation s'est toujours distinguee par ses proc€d& dlcens et mo-
dels envers les autres peuples. Elle a rempli PEurope de la
gloire de ses armes ; mais Plquite*, la g£n£rosit€ sied bien a la
toute-puissance.

J'ai done pense* que si je ne pouvais regarder le commiseatre
Danois comme partie oucomme reprise ntantde quelqa'une des
parties intere8se*e8, il ttait toujours de mon devoir d'examieer
sa demande, et de la regarder comme un Iveil donn£ a ma sol-
licitude ; je serais dans le cas, si cette demande paraissait fiin-
dee, de la realise r en mon nom, malgre le silence des parties et
de leurs ddfenseurs. Car les objets, dont la surety et la conser-
vation, pendant le litige,sont reclamles par le commissaire Da-
nois, sont sous la garde du droit des gens. Or, en pareiHe oc-
curence, je pourrais agir d'office, comme ajant les actions da

APPENDIX. 63

geuveraemeni, qwi«st le gar&en naturel, dans I'^tat, de toot co
qui repose sous la foi publique.

Je passe done a Pexamen fancier de la demande qui a 1 16
sonmise a voire decision.

Cette demande tend a Aire ordonner la mise en sdretl ou le
cautionnement da prodoit des ventes, dans lea contestations sur
la validity des prises Danoises, anterieures au 4 niv6se dernier.
On ne pent nier que, pendant le litige, la chose litigiense
doit 6tre en surety, et que rieo ne doit 6tre innov£ pendant le
proces. Ce principe g£nlral, dicte* par le bon sens et par la
raison, a 4t4 applique* a la matiere des prises, par tons les re-
glemens qui rlgissent cette matiere.

On lit par-tout qu'en g^n^ral il ne doit y "avoir ni rente, ni
deehargemeot avant le jugement de la prise ; que la vente pro-
visoire ne pent avoir lien que dans le cas oft la prise serait dans
un danger reconnu de dlplrissement pour le navire ou la car-
gaison, et encore dans le cas oil la prise serait reconnue con-
stamment ennemie ; que le prodoit des ventes provisoires doit
£tre assure par le depot ou par le cautionnement.

Le commissaire Danois est rassurl, par I'arrttl des consuls,
du 6 germinal, pour toutes les prises postlrieures au 4 nivose
d'auparavant 11 ne reclame I'autorite du conseil que pour les
prises faites avant cette Ipoque.

Mais ici les diverses Ipoques ne doivent pas£tre confondues.
Avant I'&ablissement du conseil des prises, la matiere des
prises suivait l'ordre hilnircbique des tribunaux. Comme
dans les autres matieres, on pouvait recourir au tribunal de
cassation, pour faire annuler le jugement rendu par le tribunal
d'appel. Tout e"tait conduit d'apres les principes ordinaires
de l'ordre judiciaire.

Parmi les contestations sur les prises antlrieures au 4 nivose,
il y en a qui Itaient pendantes au tribunal de cassation, quand
le conseil des prises a Itl institul. D* autres Itaient et sont en-
core devant les tribunaux d'appel, ou peut-etre m€me devout
les tribunaux de premiere instance.

D'apres le vceu de tous les reglemens, les precautions pour
la mise en surete* d'une prise, ne doivent cesser qu'apres que la
validity ou l'lnvaliditc* de cette prise a ete dlfinitivetnent jug£e ;
d'ou le commissaire Danois conclut que, tant qu'il y aura litige

64 APPENDIX.

devant quclquc tribunal que ce soit, m&ne cehu de c Marion,
il faut continuer les precautions conservatoires.

Mais on peut repondre que Ton regardait une prise come
dlfinitivementjugee, quand le tribunal d'appel avait prooeorf
Bur sa validity ou fur son invalidity. En effet, dans lespriacipei
de Fordre judictare, les jugemens des tribanaax d'appel coat da
jugemens d^finitifs et en dernier ressort, dont aucune puissasce,
dans 1'ltat, ne peut emp£cher ni suspendre l'execution.

L'appel a, par lui-m€me, un effet devolutif, et il a de ptau
effet suspensif, toutes les fois que Tonne se trou?e dans men
des cas od les lois autorisent l'execution provisoire des jige*
mens de premiere instance.

Le recours en Cassation n'aaucun des effets nidescaractew
de l'appel. Far ce recours, il n'y a ni devolution de la maiktt,
ni suspension du jugement cootre lequel on 1'exerce.

Le tribunal a qui le recours en cassation est porte, n'estjflp
que des infractions de formes, ou des contraventions fonnelte
aux lois ; il ne peut prononcer sur le bien ou le mal jogM
est tenu, quand il casse, de renvoyer le fond de la contestaikt
a un autre tribunal.

Le tribunal de cassation est plutot le gardien des lois qu
l'arbitre de rinte*r£t des parties. C'est restitution par bqoeOe
le legislateor surveille, maintient et protege son props
ouvrage,

Par l'evenement de la cassation, une cause est agit& &
nouveau. Mais le jugement, qui la terminait, e*tait d^fioitf;
il tenait lieu de la v^rite m£me, res judicata pro veritate babe-
tar. La cassation le fait disparaiire, en le declarant nul. %**
tant qu'il exist e, il est le dernier terme de la justice nationals;
ilpeut e*tre anlanti etnon reTorme\ II est aussi souverainq*
la loi, a moins qu'il ne soit constate* que le magistrat qui ft
rendu cherchait a «tre plus puissant que la loi m€me.

II est done Evident que, tant que la matiere des prises a &
laissle aux tribunaux ordinaires, il n'y avait plus lieu a craft*
nuer des precautions conservatoires, apres le jugement <f*
tribunal d'appel, vu que des precautions uniquement relate
& un £tat que l'6n suppose provisoire, ne peuvent avoir de f*
que jusqu'au jugement definitif.

APPENDIX. bfi

Jessis que tout est change depuis la loi qui depouille les tri-
baoaoz de la matiere des prises, et depots l'ltablissement da
conseil auquel cette matiere a e*t£ attribute.

Mais quels sont les effete de ce changemeat ? S'e*tendent-ils
sur le passe*, on n'ont»ils trait qu'a 1'arenir ?

Les contestations qui ne sont pins pendantes devant aucun
tribunal, et dans lesquelles tons les degree de jurisdictions et
toos les genres de recours ont tit Ipuises, sont terminles irr^-'
rocablement.

Celles que le nouvel ordre de choses a trouve* pendantes au
tribunal de cassation, poovaient revivre ; suivant le langage
des jtirisconsultes, elles 6taient encore dans lehasard des juge*
mens, in aled judiciorum Si la nullite* du jugement attaque"
e"tait reconnue, la question dn fond demeurait entie>e, corume
si elle n'arait point ttt dlfinitivement jugee, et le renvoi en
etait fait a d'autres juges.

Dans les contestations dontje parle, le conseil des prises
remplace a la fbis et le tribunal de cassation ou elles e*taient
pendantes, et le tribunal auquel elles auraient e*te* renvoyeea a-
la suite d'une sentence ou d'un jugement de cassation. Le con*
seil des prises n'a done point une competence limitle a des
points de procedure ou de forme, et Ton voit, par les termes
dans lesquels est coocu le titre de son Itablissement, que les
questions foncieres sur la validity ou invalidity des prises mari»
times, sont le veritable objet de son attribution.

II e*tait possible, dira-t-on, que si Pancien ordre £ut e"te* con-
serve, le tribunal de cassation o'eot point juge* nuls la plupart
des jugemens qui lui Itaient de*nonce*s comrae tela, et, dans, ce
cas, les parties que ces jugemens inte*ressaient, n'eussent pa?
ete" expose*es a de nouvelles incertitudes sur le fond de leurs
diffe*rends. J'en conviens ; mais il e*tait egalement possible
que la cassation fut prononcle. Dans le doute, faut-il que le"
conseil des prises prononce sur des questions de forme, avant
de se croire autorise* a prononccr sur les questions du fond ?
Mais, se trouvant juge du fond et de la forme, il slparerait des
choses que son attribution unit ; il manquerait le but principal
de son ItablisBement ; il agirait contre le bon sens et la raison
qui ne pessaettent pas de sacrifier la justice essentielle a de

Vol. VI. I

€6 APPENDIX.

simples formes de proceder, dans une matiere on la lot joge
necessaire d'ecarter les formes contentieuses de la procedure,
pour laisser plas de latitude a Implication des principes de la
justice essentielle.

Je remarquerai pourtant que, pour ne pas aggraver ou eon-
promettre, sans des considerations majeures, le sort des parties
qui peuvent, jusqu'a un certain point, se prlvaloir de l'aotorit*
de la chose jug£e, il est Equitable de ne pas reformer legere-
ment des decisions regulieres dans la forme, et intervenues en
dernier ressort Un simple mal juge, dans des hypotheses qui
peuvent laisser plus ou moins de liberty a 1'opinion du magis-
trat, ne serai t point un motif suffisaot de reformation ; car si
rien n'est purement arbitraire a la volonte du juge, il est one
foule de circonstances dans' lesqueljes plusieurs choses demen-
rent arbitraires a sa raison. Mais nous ne sanctionneroas ja-
mais une decision qui renfermerait une injustice evidente, oa
qui blesserait l'inter€t d'etat.

Je sais que 1'injustice, m€me evidente, ne peut autoriser le
tribunal de cassation a annuler un jugement rendu en dernier
ressort, si elle n'est jointe a la violation formelle de qaelqae
loi positive. Mais cette regie est fondee sur ce que les justi-
ciables ordinaires du tribunal de cassation, sont des citojaas
qui went entr'eux, non dans l'etat de nature, mais sous des lots
civiles.

Le conseil des prises, au contraire, n'a pour justiciable!
que des hommes, Francais ou etrangers, qui n'ont eu, entr'eax,
que des relations assises sur le droit de la guerre, c'est-a-dure»
des relations absolement regies par le droit des gens ; la cause
de ces particuliers est toujours liee plus ou moins a celle m&ne
des nations dont its iont partie. Or.'les nations vivaat entr'elles
dans Tindependance de l'etat de nature, il suit que, dans la ma-
tiere qui nous est attribuee, la loi naturelle conserve un empire
qu'elle obtient raremenf dans les matieres civiles : car, dans
1'ordre civil, les principes du droit nature! dirigent ; mais il a*jr
a que les lois positives qui commandeht, au lieu que, relative-
ment aux cboses qui appartiennent au droit des gens, la lot
naturelle est le veritable code des peuples : de-la toute infrac-

APPENDIX. 6?

tioh manifeste de la justice, de requite, ou de la raison nata*
relle, peat determiner la decision du conseil.

L'interlt d'etat, blesse oa meconnu, devient encore un juste
motif de reformation ; cet interft ne saurait atteindre lea objets
qui sont sous 1'empire de la loi civile ; mais il est lui-m6me la
loi supreme dans cenx qui sont sous 1'empire immediat de la
cite.

La guerre est le droit des etats, et non celui dfcs particuliers ;
la course est une delegation du droit de la guerre ; personne
ne pent armer en course, s'il n'y est autorhe par une permis-
sion speciale du souverain ou du gouvernement ; cette per-
mission, que le souverain ou le gouvernement peat refuser,
est, a plus forte raison, susceptible de conditions.

Un particulier, qui n'aurait pas le mandat de sen souverain,
et qui, force de se battre pour sa defense personnelle, prendrait
un navire ennemi, n'en deviendrait point proprietaire ; la pro*
priete de ce navire appartiendrait a 1'etat.

Leu produits de la course en faveur de 1'armateur sont done
une cession du souverain. Us pourraient etre reduits a la juste
et rigoureuse indemnite du negociant qui arme a ses frais et k
ses risques. Tout ce qui va au-dela de cette indemnite, est un
benefice librement abandonee par Fetat a titre de don, de re*
compense ou d'encouragement.

Ce qui n'est acquis qu'a titre d'encouragement, de recom-
pense, ou meme d'indemnite, ne Test qu'autant qu'il est recon-
nu qu'on s'est trouve dans le cas de la recompense ou de Fin-
demnite stipuiee ou promise. Consequemment le souverain
demeure toujours juge de la manure doat on a execute son
mandat.

11 est done evident que Ton n'a droit aux produits de la
course qu'apres le jugement qui prononce la validite de la
prise. Jusques-la, tout demeure incertain et contentieux. II
est encore incontestable que, dans ce jugement, Finterlt de
l'armateur demeure toujours subordonne a 1'interlt national.
Car la puissance publique n'a ni la voloote ni le poovoir de ae
noire.

Les produits de la course ne peuvent done toe regardes
que comme une propriete politique que Ton ne saurait

*t APPENDIX.

Itr aux proprietes civile* ordinaire*. C'est mtme parler pes
exactement que de donner le nom de propriiti a des emola-
mens oo a des prodaiU dont la cession De peut se r€alifer
qu'apres due verification des faits sur lesquels on fonde leur
legitimite ; verification dans laqnelle on doit avoir egard nom
aux regies de cette justice privee que gouverne les individus,
mais a cette sagesse superieure qui regit les societes.

Les annate urs en course connaissent les conditions inhlren-
tes a la mature de ce genre perilleux d'entreprises. lis savent
que la course etant la delegation d'un droit qui n'appartient
qu'a l'etat, ceux qui sollicitent ou qui acceptent cette delega-
tion, ne peuvent jamais faire le prejudice de P£tat qui les 6k-
legue; et qu'ila doi vent £tre juges d'apr£s les prtocipes sur
lesquels le bien meme de Petat repose*

Ces principes seront la base des jugemens da conseil, m&ne
dans les affaires que nous avons trouv£es pendantes au tribunal
de cassation.

D'autre part, j'ai deja observe qu'independamment de tout
texte positif, 1'infraction manifeste de la loi naturelle pouvait
autoriser, dans les m£mes affaires, la reformation des sentences
rendues par les tribuoaux d'appel.

II semble done qu'il ne resterait plus qu'a conclure que, rien
n'etant fini avant que le conseil des prises ait prononce, il fku-
drait souraettre tous ceux en faveur de qui la main-levee a ete
ordonee a one nouvelle consignation ou au cautionnement : car,
avant que tout,soit t ermine par un jugement absolument irre-
vocable, le gage de toutes les parties interessees doit, d'apres
les lois de la ma tie re, demeurer en sdrete.

Une loi du 4 prairial, an 6, relative a la question que j 'exa-
mine, portait : qu'aucun neutre ou soi*disant tel, ne pouvait y em
matiere de prises mart times, mettre a execution aucun jugememt
iefinitify et qu'il ne lui serait aecorde aucune main-levee, a uurisu
qu'il n'eut fourni au prealable bonne et valable caution, dans U
cas ou les armateurs se seroient pourvus en cassation, ou sermUsU
encore dans le delai utile pour se pourvoir.

Mais on voit, par cette loi, que la mesure du cautionnement
on du refus de toute main-levee, n'avait ete prise qo'en faveur

APPENDIX. 8#

des annateurs Francais, et qu'elle ne grevait que lea stranger
qui gagnaient leur cause dans les tribunaux d'appel j lea arfta*-
teura Francois obteoaient pleine main-levee,, sans etre aoomia i
un cautionnement loraque lea jugemens dea tribunaux d'appel
leur etaient favorables.

Le directoire, en provoquant la lot dont il s'agit, avait recon-
nu da pa son message que, dc droit commun, l'execution dea
jugemens rendus par les tribunaux d'appel, ne peut titre aua-
pendue. Mais il pensait qu'il fallait faire exception a ce pria-
cipe general, contre lea strangers dont la disparution pouvait
rend re inutile l'action en nullity que des armateurs Franc,aia
pouvaient £tre obliges de porter au tribunal de cassation.

Je n'ai point a examiner si ce motif etait ou n'etait pas rai-
sonnable. Mais je ne dois pas perdre de vue qu'en force dea
lois existantes, les armateurs Francais obtenaient, apres un judge-
ment du tribunal d'appel qui leur avait donne gain de cause,
la main-levee qui, dana le m£me caa, etait refusle aux etrangers.
Une mesure qui, dana lea cicconstances obligerait lea armateurs
Francois a d^ poser de nouveau le produit des ventea, ou a four*
nir caution, serait evidemment retroactive ; et tout effet retro*
actif est rlprouve* par la justice.

Mais si, par quelquea considerations particulierea, des arma-
Feurs francais n'ont pojnt obtenu la main-levee, quoiqu'ils aieni
gagne* leur cause par un des jugemens que Ton regardait
comme definitifs, il est Equitable que cet etat de choses ne soit
pas change jusqu'apres le jugement du conseil des prises, saisi
de toutes les affaires pendantes au tribunal de cassation. Car
dans ce caa, il ne a'agit pas d'inquieter ceux qui tiennent, maia
feulement de ne pas inveatir ceux qui ne tiennent point en-
core. Or, comme il est plus favorable de auspendre une
main-levee, que de la faire retracter, quand elle a ete consom-
mee, il n'y aurait pas de raison, depuis la nouvelle legislation
aur lea prises, de faire cesser un etat ■provisiore qui est utile a
tous, qui a ete continue jusqu'a ce moment, et auquel les re-
glemens nouveaux, a quelquea exceptions pres, ne iixent d'au-
tre terme qu'une decision du conseil etabli pour remplacer,
dana la raatiere dea prises, tous lea tribunaux.

$6 APPENDIX.

On aooonce des jugemens rendus par les tribonaax ordi-
nalres, soft de premiere instance on d'appel, depuis la publi-
cation de la loi qui les depouille tous. Je n'ai pas des instruc-
tions assez precises sur I'existence de ces jugemens, et sur les
circoostances dans lesquelles ils sont intervenus, pour poavoir
en faire l'objet de mes conclusions ; mais je pense que de tels
jugemens, s'ils existent, sont incompltens et nuls, comme en
fraude de la loi, et par des juges sans pouyoirs.et sans carac-
tere. Aucune main-levee n'a pu valablement £tre accordee a
la suite de ces jugemens, et les parties sont incootestablement
autorUees a faire reparer le dommage qui pourrait en resalter.

Quant aux affaires qui peuveot avoir 6t& terminees dam les
tribunaux d'appel, avant la lot. qui les dlpouille, on doit distin-
guer celles oil les parties sont encore dans le delai du recoora
en cassation, d'avec celles oil les parties ont laissl passer ce
d£lai, et ont exlcutd les jugemens sans se plaindre. Daas les
affaires de cette seconde espece, tout est consomme* et toot dolt
l'€tre, puis que les parties ont accldl a I'autorite* de la chose
jugle. Dans les premieres, au contraire, les parties peuveat
porter au conseil des prises, le recours qu'elles auraieat pa
porter au tribunal de cassation. Ce recours ne saurait etre
regards comme une surcharge, puisqu'il £tait dans le todu des
lois, sous lesquelles la contestation £tait n£e, et dans la preset*
ence des parties qui agissaient sous 1'lgide de ces lots. Ce
n'est point une innovation, mais l'exlcution d'un droit acquis a
tous ceux qui ont £t£ dans le cas de plaider devant les joges
ordinaires ; or, comme les jugemens rendus par les tribunaax
d'appel ne pouvaieot 6tre suspendus dans leur execution, si la
main-levee a deja lt£ rlalisle a la suite de ces jugemens, ea
laissera les choses en l'&at oil elles se trouvent sans rien k
ver non plus dans les causes oil les jugemens en dernier
sort n'auront encore regu aucune execution, et oil les parties
sont consequemment assez heoreuses pour voir continaer ks
precautions conservatrices de leur gage.

Je ne crois pas avoir besoin de parler des contestations bob
jugles par les tribunaux d'appel, on dont 1'instruction est peat-
etre encore pendante devant les tribunaux de premiere instance.

APPENDIX. 71

Ces contestations sont portles de droit an conseil des prises*
et il est incontestable qu'avant le jugementqui lee terminera,.
on ne pent delivrer a aucune des parties les effete ou les mar*,
cbandises qui sont l'objet du litige. Toot juge, tout agent,,
tout administrateur qui mlconnaftrait ce qui est present par
les reglemens, nSpondrait, en son propre et priv6 nom, det
dommages et int£r£ts auxqels il aurait donnl lieu par sa con*
duite.

On voit, par les details dans lesqnels je sois entre*, qu'ind&-
pendamment du dlfaut de pouvoir ou de quality suffisante dans
la personne du commissaire Danois, pour intenter des actions
et former des demandes, proprement dites, dans des contesta*
tions qui lui sont individuelleraent Itningeres, il serait impossi-
ble de faire droit a sa reclamation, et sur-toot d'y faire droit
par forme de mesure glnlrale, sans s'exposer & commettre une
Ibule d'iojuatices, en confondant des hypotheses qui sont dans le
cas d'itre distingules, et en assignant un sort common a des
parties qui sont dans des situations difflrentes.

Le commissaire Danois pent recottimander et instruire. II
pent, par le devoir de sa place, proteger indlfiniment les ne*-
gocians de sa nation. Mais pour pouvoir agir plus particu-
lierement dans les contestations pendantes, il aurait besoin d'un
pouvoir special de la partie ou des parties au nom desquelles il
agirait

• Le procureur fondl de plusieurs parties, doit agir, slpare-
ment dans cheque cause, pour l'int£r6t de chaque client, et ne
pas cumuler, par des demandes t* globo, des int£r£ts divers qui ne
se ressemblent souvent pas, et qui exigent cbacun un examen
separ£ et une prononciation distincte.

Comme chaque cause doit 6tre instruite et jug€e separement,
e'est aux parties et a leurs dlfenseurs, a faire, dans chaque
eause, tons les actes necessaires & I'instroction et au juge-
ment.

J^ai peortant cm qu'il e*tait essentiel de rappeler les maximes
qui veillent, pendant le litige, k la stirete* des effets titigieux :
maximes aussi anciennes que la matiere des prises, maximes
vraies sous tons les regimes et dans tons les terns.

72 APPENDIX.

Dans ces ciramsttnces, je conclos a ce qo'il toit 3it n'y anxr
lien de prononcer sor la demande da commissure general del
relations commerciales da Danemark, sanf a lui de foarnir at
commissure da goavernement pres le conseil, telles notes ot
tele memoires qa'il jagera utiles a PintlrGt des nlgocians de si
nation, et sauf aux parties oo a lews deftnseun qui jutti/ierod
de Uur$ droits et de hurt pouvoirs, d'intenter telles actiona, el
de former, dans les affaires lea concernant, telles demande*
qu'elle* aviseroot ; et neanmoins, pour pre*venir les dangen
oa les abus contre lesquels on paralt vouloir £tre raasaitf, je
requiers, en mon nom (poor l'interet do gou verne meat et poor
celai des annateors oo negocians Frao9ais et Grangers, dontles
proprie'te's et les gages doiveot itre garantis par la foi pubuqoe,)
qa'il soit dlcide* qoe dans les contestations ante*rieores au 4 u-
▼6se, et dans celles posterieores a cette Ipoqne, qui n'ont pout
encore e*te* jugees dlfioitirement, oo dont les jogemeDS d&si-
tifi, maissoomis ao recoors en cassation, n'ont point encored
executes, aocone rente, aocone main-levee, aocone d&haijs
de cautionnement, ne poissent £tre accordees, aotremeot que
dans les cas marques par rarr&e* des consols do 6 germinal der-
nier, et par les reglemens aoxqoels cet arrSte' ne deroge psi.
Delibtfrf a Paris, le 5 prairial, an 8.

Sign£f Ponmis.

Le conseil, apres en avoir delibeYtf, decide n'y avoir lieode
prononcer sor la demande do commissaire-ge'oe'ral des relation
commerciales da Danemark, sauf i loi de foornir an comma-
saire do gourernement pres le conseil, telles notes oo tela n*
moires qu'il jugera utiles a riote*r€t des negocians de sa naaos,
et sauf aux parties oo a leors dlfenseurs qui jusufiertat de
leurs droits et de leurs pouvoirs, d'intenter telles actions, e*
de former dans les affaires, les concernant, telles demand*
qu'elles ayiseront ; et sor les fins prises d'office par le cop*
missaire do goovernement, decide qoe dans les contestation
ante>ieures ao 4 niv6se, et dans celles posteneores acetto
Ipoqoe, qui n'ont point encore £t£ jugees demSitiremeot, <*
dont les jogemens dlfinitifs, mats soomis ao recours en cas*
tion, n'ont point encore 6t£ executes, aocone rente, aocu*

APPENDIX. 73

main-levle, aucune decharge de cautionnement ne pourront
£tre accordles aqtrement que dans lea cas marques par Parrftg
des consuls, da 6 germinal dernier, et par lea reglemena aax-
quels cet arr£tl ne dlroge pas.

Fait a Paris, le 3 prairial an 8, maison de POratoire, Men dea '
stances du conseil. Pr&ens les citoyens Redon, president ;

NlOU, LlCOSTE, MoREAU, M0KTIGNY-M0HTPLAI8IR, BAABRlTBa,

Dufaut, Parceval-Grahdmaison et TouRNACHOir, membres du
conseil.

En foi de quoi, la pr&ente decision a €i€ signle par le pre-
sident.

Sign£> Redon, prisident.

Par le conseil,

Le secrita%re*geniral ; rigni, Calvelet.

Vol. VI. K

INDEX

THE PRINCIPAL MATTERS

IN THIS VOLUME.

ADMIRALTY.

1. A question of fact, under the
46th section of the Collection
Law of the 2d of March, 1799,
c. 128. exempting from duty
the wearing apparel, and other
personal baggage, of persons
arriving in the United States.
77k Robert Edwards, 1 87

2. Where the res festa, in a reve-
nue cause, are incapable of ex-
planation consistently with the
innocence of the party, con-
demnation follows, although
there be no positive testimony
of the offence having been com-
mitted, ib.

3. Although a mere intention to
evade the payment of duties be
not, per *e, a cause of forfeiture,
yet when a question arises,
whether an act has been com-
mitted which draws after it that
consequence, such intention

will justify the Court in not
putting on the conduct of the
party, in respect to the act in
question, an interpretation as
favourable as under other cir-
cumstances it would be disposed
to do. Ib. 191

4? 1° &H proceedings in rem, on an
appeal, the property follows the
cause into the Circuit Court,
and is subject to the disposition
of that Court But it does not
follow the cause into the Su-
preme Court, on an appeal to
that Court. The Collector, 194

5. After an appeal from the Dis-
trict to the Circuit Court, the
former Court can make no or-
der respecting the property,
whether it has been sold, and
the proceeds paid into Court,
or whether it remains specifi-
cally, or its proceeds remain, in
the hands of the Marshal, ib.

6. It is a great irregularity for the
Marshal to keep the property,
or the proceeds thereof, in ms

INDEX

own bands, or to distribute the
same Among the parties entitled,
without a special order from the
Court ; but such an irregulari-
ty may be cured by the assent
and ratification of all the parties
interested, if there be bo mala
fide*. JJte Collector, 194

7« Under the 67th section of the
Collection Act of the 2d of
March, 1799, c. 128. where
goods were entered by an agent
of the owner on his behalf, and
the entry included only a part
of the goods which the packages
contained, and the owner sub-
sequently made a further, or
post entry of the residue of the
goods ; and the packages being
opened several days afterwards
and examined by the Collector
in the presence of two mer-
chants, and their contents found
to agree with the two entries
taken together, but to differ
materially from the first entry ;
held, that the Collector was not
precluded from making a seizure
of the goods after the seoond
entry, tor a variance between
the contents of the packages and
the first entry, and that such
seizure must be followed by
confiscation, unless it should
appear that such difference pro-
ceeded from accident and mis-
take, and not from an intention
to defraud the revenue. The
United State* v. Six Package* of
Good*, 620

&e Practice, 4.

Pmzfc.

AGENT AND PRINCIPAL.

H. and others, merchants in Balti-
more, consigned a vessel and

cargo to W. and others, i
chants in Amsterdam, with in-
structions to them respecting
her ulterior destination, which
showed, that on the failure of
getting a freight to Batavia, or
of setting the vessel at a price
limited, she was to proceed to
St Petersburg, and there take
in a return cargo of Russia
goods for the United States, bat
with instructions to the master
committing to him the manage-
ment of the ulterior voyage.
No freight to Batavia could be
obtained, and the vessel coo id
not be sold for the price limit-
ed at Amsterdam ; and W. and
others, purchased in Amsterdam^
with the concurrence of the
master, a return cargo of Rus-
sian goods, partly with the mo-
ney of H. and others, and partly
with money advanced by them-
selves. On the return of the
vessel to Baltimore, H. and
dthers objected to the purchase
of this cargo in Amsterdam, as
being contrary to express or-
ders, add gave notice to W. and
others, of their determination
to hold them responsible for afl
losses sustained in consequence
of this breach of instructions \
but received the goods and sold
them. W. and others brought
an assumpsit against H. and
others, to recover from them
the moneys advanced. The de-
claration contained the three
usual money counts. Held, IsL
That the plaintiffs had a demand
in law against the defendants,
which could be maintained in
this form of action. 2dly. That
whether the plaintiffe could, or
could not, be made responsible in
any form of action which might
be devised for the possible loss

I N D E X

77-

resulting from the breaking up
of tbe intended voyage to St.
Petersburg!), the defendants
were not entitled to a deduction
from the plaintiffs9 demand, for
the amount of such loss. Wil-
links v. Hollingsworth, 240. 251

BANKRUPT.

See Constitutional Law, 2. Lo-
cal Law, 5, 6.

BILLS OF EXCHANGE AND
PROMISSORY NOTES.

1 . Where the second day of grace
falls on Saturday, it is the last
day of grace ; and notice of non-
payment given to the drawer of
a bill on that day, after a de-
mand upon the acceptor on the
same day, is sufficient to charge
the drawer. ' Bustard v. Lever-
ing, 102

2. Notice to the drawer, by putting
the same into the post-office,
where the persons live in diffe-
rent places, is good. ib.

3. After demand of the maker of a
note, on the third day of grace,
notice to the endorser on the
same day, is sufficient by the
general law merchant. Linden*
berger v. Beall, 104

4. Evidence of a letter, containing
notice, having been put into the
post-office, directed to the en-
dorser, at his place of residence,
is sufficient proof of the notice
to be left to the jury, and it is
unnecessary to give notice to
the defendant to produce the
letter before such evidence can
be admitted. ib.

5. No protest of a promissory note,
or inland bill of exchange, is ,
necessary. Young v. Bryan,

146

6. A protest of an inland bill pr
promissory note is not necessa-
ry, nor is it evidence of the
facts stated in it. The Union
Qank v. Hyde, 572

7. The following undertaking of
the endorser of a promissory
note, " 1 do request that here-
after any notes that may fall due
in the Union Bank, in which I
am, or may be endorser, shall
not be protested, as I will con-
sider myself bound in the same
manner as if the said notes had
been or should be legally pro-
tested," held to be ambiguous
as to whether it amounted to a
waiver of demand and notice ;
and parol proof admitted to
show that it was the understand-
ing of the parties, that the de-
mand and notice required by
law to charge the endorser,
should be dispensed with. ib.

CHANCERY.

1. There is no difference in' re-
spect to the conclusiveness of a
judgment at law and of a decree
in Chancery. Both are conclu-
sive as to the facts directly in
controversy. Hopkins v. Lee,

109. 113

2. A decrae cannot be pronounced,

on the testimony of a single
witness, unaccompanied by cor-
roborating circumstances, against
a positive denial, by the defend-
ant, of any matter directly
charged by the bill, in the de-

INDEX

fendant's answer, or answer in
support of his plea. Hughes v.
Blake, 453

3. A replication to a plea is an ad*
mission of the sufficiency of the
plea, as much a3 if it had been
set down for argument, and al-
lowed ; and all that the defend-
ant has to do, is to prove it in
point of fact, and a dismission of
the bill on the hearing is then a
matter of course. ib.

4. Under what circumstances a
plea of a former judgment at
law, for the same cause of ac-
tion, is a good bar in equity, ib.

5. To establish the existence of a
trust, the onus probandi lies on
the party who alleges it. Pre*
vost v. Gratz, 481

6. In general, length of time is no
l>ar to a trust clearly establish-
ed to have once existed ; and
where fraud is imputed and pro-
ved, length of time ought not to
exclude relief. Ib. 497

7. But as length of time necessarily
obscures all human evidence,
and deprives parties of the
means of ascertaining the nature
of the original transactions, it
operates, by way of presump-
tion, in favour of innocence,
and against imputation of fraud.

ib.

8. The lapse of forty years, and
the death of all the original
parties, deemed sufficient to
presume the discharge and ex-
tinguishment of a trust, proved
once to have existed by strong
circumstances; by analogy to
the rule of law, which after a
lapse of time presumes the pay-
ment of a debt, surrender of a
deed, and extinguishment of a
trust, where circumstances re-
quire it. ib.

9. The general rule is, that time is
not of the essence of a contract
of sale ; and a failure on die
part of the purchaser, or ven-
dor, to perform his contract, <n
the stipulated day, does not, of
itself, deprive him of his right
to a specific performance, when
he is able to comply with hs
part of the engagement Bn-
shier v. Grate, 528

10. But circumstances may be »
changed, that the object of the
party can no longer be accom-
plished, and he cannot be pla-
ced in the same situatioo as if
the contract had been perform-
ed in due time. Io such a case,
a Court of equity will learethe
parties to their remedy at bw.

11. Part performance will, noSer
some circumstances, indoce the
Court to relieve. &

12. But where a considerable length
of time has elapsed, where the
party demanding a specific per-
formance has failed to perform
his part of the contract, and the
demand is made after a great
change in the title and the value
of the land, and there is a wat
of reciprocity io the obligation*
of the respective parties, i
Court of equity will not inter-
fere. *

13. Who are necessary parties in
equity. Kerr v. Watts, •*

14. Application of the law of set-df
and lien in equity, under pecfr
liar circumstances. Leak *•
The Marine Insurance Gwyffji

665

COLLECTOR.
See Embargo.

INDEX.

CONSTRUCTION OF STA-
TUTE.

1. Where, in a contract with the
Secretary of War, for supplying
the troops of the United States
with provisions, specific prices
are stipulated for rations issued
at certain places mentioned in
the contract ; and it is further
provided, that " should any ra-
tions be required at any places
not specified in this contract,
the price of the same shall be
hereafter agreed on betwixt the
public and the contractor ;" if
the parties cannot agree upon
the price for the rations thus
required, a reasonable compen-
sation is to be allowed, and is
to be proved by competent evi-
dence, and settled by a jury ;
and the contractor, upon the
trial, is at liberty to show, that
the sum allowed by the Secre-
tary at War is not a reasonable
compensation. United States v.
Wilkins, 135

2. Under the 3d and 4th sections
of the act of the 3d of March,
1797, c. 74 the defendant ia
entitled, at the trial, to the full
benefit of any credit in his fa-
vour, whether arising out of the

Particular transaction for which
e was sued, or out of distinct
and independent transactions,
which would constitute a legal
or equitable set-off, in whole or
in part, of the debt sued for by
the United States. ib.

See Admiralty, 1, 2, 3. 7.

Embargo.

CONSULS.

See Prize, 12, 13. 24, 25.

CONTRACT.

See Agent and Principal.
Chancery, 9, 10, 11, 12.
Sale.
CONSTITUTIONAL LAW.

1. The record of a judgment in
one State, is conclusive evi-
dence in another, although it
appears that the suit, in which
it was rendered, was commen-
ced by an attachment of pro-
perty, the defendant having af-
terwards appeared and taken
defence. Mayhem v. Thatcher \

129

2. An act of a State Legislature
which discharges a debtor from
all liability for debts contracted
previous to his discharge, on his
surrendering his property for
the benefit of his creditors, is a
law impairing the obligation of
contracts within the meaning of
the constitution of the United
States, so far as it attempts to
discharge the contract : and it
makes no difference in such a
case, that the suit was brought
in a State Court of the State, of
which both the parties were ci-
tizens, where the contract was
made, and the discharge ob-
tained, and where they conti-
nued to reside until the suit was
brought. Farmers and Mecha-
nics' Bank v. Smith, 131

3. To an action of trespass against
the Sergeant at Arms of the
House of Representatives of
. the United States, for an assault
and battery and false imprison-
ment, it is a legal justification
and bar, to plead, that a Con-
gress was held and sitting, du-

INDEX.

ring the period of the trespasses
complained of, and that the
House of Representatives had
resolved that the plaintiff had
been guilty of a breach of the
privileges of the House, and of
a high contempt of the dignity
and authority of the same ; and
bad ordered that the Speaker
should issue his warrant to the
Sergeant at Arms, commanding
him to take the plaintiff into
custody, wherever to be found,
and to have him before the said
House, to answer to the said
charge ; and that the Speaker
did accordingly issue -such a
warrant, reciting the said reso-
lution and order, and command-
ing the Sergeant at Arms to take
the plaintiff into custody, &c«
and delivered the said warrant
to the defendant : By virtue of
which warrant the defendant ar-
rested the plaintiff, and con-
veyed him to the bar of the
House, where he was heard in
his defence, touching the matter
of the said charge, and the exa- 5.
mination being adjourned from
day to day, and the House hav-
ing ordered the plaintiff to be
detained in custody, he was ac-
cordingly detained by the de- 6.
fendant, until he was finally ad-
judged to be guilty, and convict-
ed of the charge aforesaid, and
ordered to be forthwith brought
to the bar, and reprimanded by
the Speaker, and then dischar-
ged from custody ; and after be-
ing' thus reprimanded, was ac-
tually discharged from the ar-
rest and custody aforesaid. An-
derson v. Dunn, 204
4. This Court has, constitutionally,
appellate jurisdiction under the
judiciary act of 1789, c. 20. s.
26. from the final judgment or* 7.

decree of the highest Court of
law or equity of a State, baring
jurisdiction of the subject mat-
ter of the suit, where is draws
in question the validity oi a
treaty, or statute of, or an au-
thority exercised under, the
United States, and the decision
is against their validity ; or
where is drawn in question the
validity of a statute of, or m
authority exercised under any
State, on the ground of their
being repugnant to the consti-
tution, treaties, or laws of the
United States, and the decision
is in favour of sucb\ their vali-
dity ; or of the constitution, or
of a treaty, or statute of, or con-
mission held under the United
States, and the decision is a-
gainst the title, right, privilege,
or exemption, specially set up
or claimed, by either party, un-
der such clause of the consti-
tution, treaty, statute, or com-
mission. Cohens v. Virginia
264. 375
It is no objection to the exer-
cise of this appellate jurisdic-
tion, that one of the parties is s
State, and the other a citizen of
that State. it.

The act of Congress of the 4th
qf May, 1812, en tided, " an act
further to amend the charter of
the city of Washington," which
provides, (s. 6.) that the Cor-
poration of the city shall be es*-
powered for certain purposes,
and under certain restrictions,
to authorize the drawing of lot-
(eries, does not extend to au-
thorize the Corporation to
force the sale of the tickets in
such lottery, in States where
such sale may be prohibited by
the State laws. A.

Decision of the House of Lords

INDEX.

respecting the power of com-
mitment for contempts in the
case of Burden v. Abbott, 14
East's Rep. I. Note to the case
of Anderson v. Dunn, Note a.
221.
8. Resolutions of the Legislature of
Virginia of 1810, upon the pro-
position from Pennsylvania to
amend the constitution so as to
provide an impartial tribunal to
decide disputes between the
State and federal judiciaries.
Note to Cohens v. Virginia,
Note a. 368

DUTIES.
See Admiralty, 1, 2, 3. 7.

EMBARGO.

1. Under the Embargo Act of the
25th April, 1808, c. 170. [Ixvi.]
if a vessel, not actually arriving
at her port of original destina-
tion, excites an honest suspi-
cion in the mind of the Collec-
tor, that her demand of a per-
mit to land the cargo was mere-
ly colourable, this is not a ter-
mination of the voyage so as to

* preclude the right of detention.
' Otis v. Walter, 583

9. Under what circumstances the
Collector has a right .-to land
the cargo of the vessel thus de-
tained, ib.

EVIDENCE.

1. A judgment or decree of a
Vol. VI. L

Court of competent jurisdiction
is conclusive wherever the
same matter is again brought in
controversy. Hopkins v. Lee,
109. 113

2. But the rule does not apply to
points which come only colla-

' terally under consideration, or
are only incidentally consider-
ed, or can only be argumenta-
tirely inferred from the de-
cree, ib.

3. A replication to a plea in Chan-
cery, is an admission of its suffi-
ciency » in. point of equity, and
all that the defendant has to do,
is to prove it in point of fact.
Hughes v. Blake, 453. 472

4. Effect of length of time in rais-
ing a legal and equitable pre-
sumption of the extinguishment
of a trust, payment of a debt,
&c. Prevostv. Gratz, 481. 504

6. A parol exchange of lands, or
parol evidence, that a convey-
ance should operate as an ex-
change, will not convey any es-
tate or interest in lands. Clark
v. Graham, 577

See Bills of Excbarob and Pro-
missory Notes.

INSURANCE.

1. Where, in a policy of insurance,
a technical total loss is asserted
as the ground of recovery, the*
loss must be occasioned by the
immediate operation of some of
the perils insured against, and
• it is hot sufficient that the voy-
age be abandoned for fear of
the .'operation of the peril.
Smith v. The Universal he . Co.

176

INDEX.

t. Tfce insurers do not undertake,
that the Voyage shall he per-
formed without delay, or that
the peril? insured against shall
abt occur ; they undertake on-
• ly for losses sustained hy those
perils; and if any peril does
• begin to act upon the subject,
yet if it be removed before any
loss takes place, and the voyage
is not thereby broken up, but
is, or may be, resumed, the in-
sured cannot abandon for a to-
tal loss. to.
3.' Insurance on munitions of war, la-
den on board a neutral vessel,
on a voyage from New-York,
to and at a port or ports, place
or places, in the Gulph of Mei-
. ico, from the Balize to Cam-
peachy, both inclusive, and
from either back to New-York,
&c. with a memorandum, that
the insurers should be free from
any loss arising from illicit or
prohibited trade. The goods
insured were prohibited from
being imported into the ports of
New Spain, in possession of the
Royalists, by the laws of Old
Spain, but were permitted to be
introduced into such ports as
were in possession of the insur-
gents. The vessel and cargo
arrived oflfa place in possession
of the patriot General Mina,
and the master made an agree-
ment to sell the cargo to him,
deliverable from time to time,
as he should want it, at St. An-
tler. But before the cargo
could be delivered, the vessel
was chased off by Spanish arm-
ed ships, and after making seve-
ral attempts to return, was com-
J relied to proceed to the Balize
or repairs; after which she
again approached the coast, but
found it still in possession of the

Royalists, General Mina baring
retired into the interior. The
objects of the voyage beiog tb»
defeated, the vessel returned to
New-York with the original
cargo on board ; and the insu-
red then abandoned to the un-
derwriters, not having before
had information of the breaking
up of the voyage. Held, that
the insured were not entitled to
recover as for a total loss of tbe
voyage. *•

4. In a claim for a technical tool
loss, the loss of the voyage most
be occasioned by #the imme-
diate operation of a J>eril insu-
red against. ib, 185

5. If a peril begins to act upon tbe
subject, yet if it be remoTed be-
fore any loss takes place, sad
the voyage is not thereby bro-
ken up, but is or may be resu-
med, the insured cannot abo-
don for a total Joss. *

JURISDICTION.

1, The Circuit Court has jarwfic-
tion of a suit brought bj tbe
endorsee of a promissory note,
who is a citizen of one State,
against the endorser, who is a
citizen of a different State, wi-
ther a suit could be brought is
that Court by the endorsee, *
gainst the maker, or not. T&H
V. Bryan, M*

2. A division of the judges of tbe

Circuit Court, on a motion fori
new trial, in a civil or a criot*
nal case, is not such a division
of opinion as is to be certified
to this Court for its -decisios.
' under the 6th section of *e j*

INDEX.

diciary act of 1802, c. 291.
[xxi.J United States v. Daniel,

542

3. A State Court cannot issue a

mandamus to an officer of the

United States. M Clung \. Sil-

liman, 598

See Constitutional Law, 4, 5. 6.
Practice, 2, 3.

LEX LOCI.
See Local Law, 13.

LIMITATION OF ACTIONS-
See Chancery, 5, 6, 7, 8.

LOCAL LAW.

1. The Circuit Court for the Dis-
rict of Columbia has authority
to adjourn to a distant day, and
the adjourned session is consi-
dered as the same term. Me-
chanics' Bank of Alexandria v.
Withers, 106

2. Where the regular term began
on the 3d Monday in April, and
the Court continued to sit, de
die in ditm, until the 16th of
May, when it adjourned to the
4th Monday of June ; held, that
a defendant, against whom an
office judgment had been enter-
ed on the 16th of May, had a
right, under the laws and prac-
tice of Virginia, to appear at
the adjourned session, and have
the default set aside, on giving
special bail, and pleading issua-
ble ib.

3. Under the act of Assembly of

Virginia, die. defendant may
enter special bail, and defend
the suit at 'any time before the
entering npof judgment upon
a writ of inquiry eiecuted ; • and
the appearance of the 'defend-
ant, or the entry of special
bail, before such judgment, dis-
charges the appearance bail.
Bartle r. Coleman, 475

4. If the defendant does not ap-
pear, or give special bail, the
appearance bail may defend the
rfuit, and is liable to the same
judgment as the defendant
would have been liable to ; but
the defendant cannot appear
and consent to a reference, the
report and judgment on which
is to bind the appearance bail
as well as himself. Such a
Joint judgment is erroneous,
and will be reversed as to
both. ib.

5. The third section ef the act of
Congress, of March 30th, 1803,
for the relief of insolvent debt-
ors in the District of Columbia,
does not create any express or
implied exception to the ope-
ration of the statute of limita-
tions, by making the insolvent
a trustee for his creditors, in
respect to his future property,
or by making any demand, in-
cluded in the schedule of his
debts, a debt of record. Bowie
v. Henderson, 514

6. The including of a demand in
the schedule of the insolvent's
debts, is sufficient evidence to
sustain an issue on a replication
of a new promise to the plea of
the statute of limitations, if the
period of limitation has not
elapsed after the date of the
schedule. ib.

7. The decision of this Court, in
Ma$$ie v. WatU> 6 Cranch, 148.

fti

INDEX.

revised and confirmed. Kerr
t. Watts, 660

8. The role applied in equity to
the relief of bona fide pur-
chasers without notice, is not
applicable to the case of purcha-
sers of military land warrants
under the laws of Virginia, ib.

9. Such purchasers, are considered
as affected with notice by the
record of the entry, and also of
the survey ; and subsequent
purchasers are considered as
acquiring the interest of the
person making the entry : so
that purchasers under conflict-
ing entries are considered
as purchasing under distinct
rights, in which case the rule,
aa to innocent purchasers, does
not apply. ib.

10. The principle, that only par-
ties, or privies, or purchasers
pedente lite, are bound by a de-
cree in equity, how applied to
this case. ib.

11. The surveys actually made on
the military land warrants of
Virginia, have not the force of
judicial acts, or of acts done by
the deputations of officers as
general agents of the continen-
tal officers. i*6.

12. A power to convey lands must
possess the same requisites, and
observe the same solemnities,
as are necessary in a deed di-
rectly conveying the lands.
Qark v. Graham, 677

13. A title to lands can only be ac-
quired and lost according to the
laws of the State in which they
are situate. ib.

14 The laws of Ohio require all
deeds of land to be executed
in the presence of two wit-
nesses, and a deed executed in
the presence of one witness
only is void* ib.

16 It is a universal rule, that course

and distance yield to natural and

. ascertained objects. Preston's

heirs v. Bowmar, _ MO

16 But where these objects are
wanting, and the course and
distance cannot be reconciled,
there is no universal rale that
obliges us to prefer the one to
the other. t&-

17. Cases may exist in which the
one or the other may be prefer-
red according to the circum-
stances, ib.

1 8 In a case of doubtful construction,

the claim of the party in actual
possession ought to be main-
tained, especially where it has
been upheld by the decisions of
the State tribunals. ib.

19 The power given to the Corpo-

ration of Georgetown, by the
act of Maryland, of November,
1797, c. 66. to graduate the
streets of that City, is a con-
tinuing power, and the Corpo-
ration may from time to time
alter the graduations so made.
Goszler y the Corporation ef
Georgetown, 593

20. The ordinance of May, 1799,
by which the Corporation of
Georgetown first exercised the

. power of graduating the streets,
is not in the nature of a com-
pact, and may be altered by the
Corporation. ib.

21. Under the laws in relation to
the Mutual Assurance Society
of Virginia, property offered
for insurance, on which the
premium has not been paid* and
which is sold without notice, is
not liable for the premium in
the hands of the vendee. The
Mutual Assurance Society y. Fax*
on, 606

22. The execution by a public offi-
cer of a power to sell lands for

INDEX.

tbe non-payment of taxes, must
be in strict pursuance of the
law under which it is made, or
no title is conveyed. Thatcher
r. Powell, 119

23. It is essential to the yalidity of
the sale of lands for taxes, un-
der the laws of Tennessee, that
it should appear on the record of
the Court, by which* the order
of sale is made, that the Sheriff
had returned that there were
no goods and chattels of the de-
linquent proprietor, out of
which the taxes could be made.

ib.

24. The publications which are re-
quired by law .to be made, sub-
sequent to the Sheriff's return,
and previous to the order of
sale, are indispensable prelimi-
naries to a valid order of sale. 1 6.

25. In summary proceedings, where
a Court exercises an extraor-
dinary power under a special
statute, which prescribes its
course, that course ought to be
strictly pursued, and the facts
which give jurisdiction, ought
to appear on the face of the re-
cord. Otherwise, the proceed-
ings are not merely voidable,
but absolutely void, as being
coram non judice. ib.

26. In construing local statutes re-
specting real property, this
Court is governed by the deci- .
sions of the State tribunals, ib.

27. As by the laws of Louisiana,
questions of fact in civil cases
are triell by the Court, unless
either of the parties demand a -
jury ; in an action of debt on a
judgment, tbe interest on the
-original judgment may be com-
puted, and make part of the

* judgment in Louisiana, without
a writ of inquiry and the inter-
ventions of a jury. Mayhem v.
Thatcher, 129

PLEADING.

See Practice, 3. 5. 7, 8, 9, 10.

PRACTICE.

1. An equity suit, where an ap-
peal has been taken from the
Circuit Court to this Court, b.ut
not prosecuted, will be dismis-
sed upon producing a certifi-
cate from the Court below, that
the appeal has been taken and
not prosecuted. Randolph v.
Barbery 128

2. A decree of the highest Court
of Equity of a State, affirming
the decretal order of an inferior
Court of Equity of tbe same
State, refusing to dissolve an
injunction granted on the filing
of che bill, is not a final decree
within the 25th section of the
judiciary act of 1789, c. 20.
from which an appeal lies to
this Court. Gibbons v. Ogdcn,

448

3. In order to maintain a suit in
the Circuit Court, the jurisdic-
tion must appear on the record ;
as if the suit is between citi-
zens of different States, the ci-
tizenship of the respective par-
ties must be set forth. Sullivan
v. The Fulton Steam-Boat Com-
pany, 450

4. An admiralty suit, where an ap-
peal has been taken from the
Circuit Court to this Court, but
not prosecuted, will be dis-
missed, upon producing a certi-
ficate from the Court below,
that the appeal has been taken,
and not prosecuted. The Jon-
quille, 452

6. The defendant's denial, in his
answer in support of his plea,
is conclusive, unless contra-

INDEX.

dieted by the" testimony of more
than one witness, or one wit-
ness accompanied with corro-
borating circumstances. Hughe*
V.Blake, 463.468

6. In an equity cause, the res in li-
tigation may be sold by order
of the Circuit Court, and the
proceeds invested in stocks, not-
withstanding the pendency of
an appeal to this Court. Spring
▼. The South Carolina Int. Co.

519

7. In real or personal actions, at
common law, the death of par-
ties, before judgment, abates
the suit; and it requires the
aid of some statutory provision,
like that of the 31st section of
the Judiciary Act of 1789, c.
20. to enable the suit to be pro-
secuted by, or against the per-
sonal representative or heir of
the deceased, where the cause
of action survives. Green v.
Watkins, 260

8. In writs of error upon judg-
ments already rendered, in per-
sonal actions, if the plaintiff in
error dies before assignment of
errors, the writ abates at com-
mon law ; but if after assign-
ment of errors, the defendant
may join in error, and proceed
to get the judgment affirmed, if
not erroneous, and may then
revive it against the represen-
tatives of the plaintiff. to.

*9. But a writ of error in personal
actions, does not abate by the
death of the defendant in error,
whether it happen before or
after errors assigned ; and the
personal representatives may
- not only be admitted voluntarily
to become parties, but a scire
facias may issue to compel
them. ib.

10. By the rules of this Court, if
either party, in real or per-

sonal actions, die, pending the
writ of error, his representa-
tives in the personalty or realty,
may voluntarily become pa-
ties, or may be compelled to be
come parties, in the muffler
prescribed by the rule. £.

PRIZE.

1 . Whether the capture is made by
a duly commissioned captor, or
not, is a question between the
government and the captor, win
with which the claimant has no-
thing to do. The Amiattt ba-
bel la, 1.66

2. If the capture be made by i
non-commissioned captor, the
government may contest the
right of the captor after a de-
cree of condemnation, aod be-
fore a distribution of the prize
proceeds ; and the condemn*
tion must be to the government
Ib. 66

3. The 17th article of the Spanish
treaty of 1 795, so far as it pur-
ports to give any effect to pat?'
ports, is imperfect and inopera-
tive, in consequence of the
omission to annex the form of
passport to the treaty. ft ®

4. Quojre— Whether, if the fom
had been annexed, and the pas-
port were obtained by frasA
and upon false suggestions, it
would have the conclusive rf
feet attributed to it by the trea-
ty ? *

5. Qucere— Whether sailing wk
enemy's convoy be a sabsta-
tive cau?e of condemnation ! *

6. By the Spanish treaty of H*
free ships make free good*; W

the form of the passport, ty
which the freedom of the shj
was to have been conclasif«y
established, never having bee»
duly annexed to the treaty, the
proprietary interest of th« «ty

INDEX.

is to be proved according to the
ordinary rules of the Prize
Court, and if thus shown to be
Spanish, will protect the cargo
• on board, to whomsoever the
latter may belong. The Amiable
Isabella, 69

7. By the rules of the Prize Court,
the onus proband* of a neutral
interest rests on the claimant.
lb. 77

8. The evidence to acquit or con-
demn, must come, in the first
instance, from the ship's papers,
and the examination of the cap-
tured persons. ib.

9. Where these are not satisfacto-
ry, farther proof may be admit-
ted, if the claimant has not for-
feited his right to it by a breach
of good faith. ib.

18. On the production of farther
proof, if the neutrality of the
property is not established be-
yond reasonable doubt, condem-
nation follows. ib.

11. The assertion of a false claim, in
whole or in part, by an agent,
or in connivance with the real
owner, is a substantive cause of
condemnation. ib.

12. A foreign Consul has a right to
claim or libel, in rem, where
the rights of property of his
fellow subjects are in question,
without any special authority
from those for whose benefit he
acts. The Bello Corrunes, 152.

168

13. But a Consul cannot receive ac-
tual restitution of the res in con-
troversy, without a special au-
thority from the particular indi-
viduals who are entitled. Ib. 169

14. A citizen of the United States
cannot claim, in their Courts,
the property of foreign nations
in amity with the United States,
captured by him in war, where-
soever the capturing vessel may

have been equipped, or by
whomsoever commissioned, ib.

15. Incase of an illegal capture, in
violation of the neutrality of this
country, the property of the
lawful owners cannot be forfeit-
ed for a breach of its revenue
laws, by the captors, or persons
who have rescued the property
from their possession. ib.

16. Whatever difficulty there may
be, under our municipal insti-
tutions, in punishing, as pirates,
citizens of the United States
who take from a State at war
with Spain, a commission to
cruise against that power, con-
trary to the 1 4th article of the
Spanish treaty, yet there is no
doubt that such acts are to be
considered as piratical acts for
all civil purposes, and the of-
fending parties cannot appear,
and claim in our Courts the
property thus taken. ib.

17. It teems, that the terms, " a State
with which the said King shall
be at war," in the 14th article
of the treaty, include the South
American provinces which have
revolted against Spain. ib.

18. But, however this may be, the
Neutrality Act of June, 1797,
c. i. extends the same prohibi-
tion, with all its consequences,
to a colony revolting, and ma-
king war against its parent coun-
try, ib.

19. In the case of such an illegal
capture, the property of the
lawful owners cannot be forfeit-
ed, for a violation of the' reve-
nue lawa of this country, by the
captors, or by persons who have
rescued the property from their
possession. ib.

20. The rights of salvage may be
forfeited by spoliation, smug-
gling, or other gross misconduct
of the salvors. ib.

INDEX.

21. Where a capture is made of the
property of the subjects of a
nation in amity with the United
States, by a vessel built, armed,
equipped, and owned in the
United States, such capture is
illegal, and the property, if
brought within our territorial
limits, will be restored to the
original owners. La Concep-
tion, 235. 238

~22. Where a transfer of the captur-
ing vessel in the ports of the bel-
ligerent State, under whose flag
and commission she sails on a
cruise, is set up in order to le-

Jalize the capture, the bona
des of the sale must be proved
by the usual documentary evi-
dence, in a satisfactory manner.

to.

23. This Court does not recognise
the existence of any lawful
Court of Prize at Galveztown,
nor of any Mexican republic or
state, with power to authorize
captures in war. The Nueva
Anna and Liebre, 1 93

24. Citation from De Steck as to the
powers of Consuls. Note to the
Bello Corrunes, Note a. 156

25. Opinion of M Portalis on the
right of Consuls to claim in a
Court of Prize. Note to the Bello
Corrunes, Note No. V. Appen-
dix, 59

26. Articles of the Spanish treaty of

1795, referred to in the case of
the Amiable Isabella, Appendix,
Note No. I. 3

27. Decisions of the French Council
of Prizes respecting the form
and effect of passports to neu-
tral vessels Note No. II. to
the case of the Amiable Isabella,
Appendix, 12

28. Articles of the French, Dutch,
Swedish, and Prussian treaties,
referred to in the Amiable lsa»
bella, Appendix, Note No. III.

29. Convention of 1801 between
Russia and Great Britain > re-
ferred to in the above case.
Appendix, Note No. IV. §2

SALE.

1. In an action at law by the ven-
dee, against the vendor, for a
breach of the contract, in not
delivering the thing sold, the
proper measure of damages is
not the price stipulated in the
contract, but the value at the
time of the breach.

2. This rule applies to the sale of
real as well as personal proper-
ty : but, Queer*, Whether it is
the proper measure of damages
in the case of an action tor
eviction ? Hopkins v. Lee, 109.

SET-OFF.
See Agent ahd Principal.

STATUTES OF VIRGINIA.
See Local Law, 2, 3, 4. 8.

STATUTES OF MARYLAND.
See Local Law, 19, 20.

STATUTES OF OHIO.
See Local Law, 14.

SPECIFIC PERFORMANCE,
See Chancery, 9, 10, 11, 12.

TREATY.

See Prize, 3, 4, 5, 6. 16, 17. 26, 27,

28, 29.

<j /

ii I 7

. M-.

ACME *
•OOKBiltiKJfG CO. INC

OCT 2 71986

100 CAMBRIDGE STREET
CHARLESTOWH, MASS.

3 2044 049 726 748

Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Books

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

Full text of "Reports of cases argued and adjudged in the Supreme Court of the United States"

See other formats