author: By the Court.

text:
    Turner, administrator, v. Enrille.

      Averment ofju/risdiction.

    Where the jurisdiction of the federal courts dependa on alienage, or tbe citizenship of the parties, it must be set forth on the record.
    Bingham v. Cabot, 3 Dali. 382, re-affirmed.
    Error from the Circuit Court of South Carolina. The record, as abridged for the judges, presenting the following case:
    The Marquis de Caso Enrille instituted an action on the case, against Thomas Turner, the administrator of Wright Stanley, in the circuit court of North Carolina, of June term 1795.
    A declaration in case was filed by the Marquis de Caso Enrille, of -in the island of-, of June term 1796, in which it is set forth, that Wright Stanley (the intestate) and John Wright Stanley and James Greene were “ merchants and partners, at Newbern, in the said districtthat Wright Stanley survived the other partners; that on the 4th of June 1791, in the lifetime of all the partners, they were indebted unto the said Marquis in-dollars ; and in consideration thereof, assumed to pay, &c. The 2d count, insimul computassent, when the said partners were found in arrear to the said Marquis, in other-dollars, &e. The plaintiff concluded with the usual averments of non-payment, to the damage of the said Marquis,-dollars, &c.
    On the 30th November 1796, the defendant appeared, and pleaded— 1st. Non assumpsit intest.: replication and issue. 2d. The statute of limitations as to the intestate: replication, an account-current between merchant and factor : rejoinder, and issue. 3d. Set-off, that the plaintiff was indebted to the intestate, on the 1st of January 1792, in more than the damages by the plaintiff sustained, &e., to wit, in $4000, for money had and received by the plaintiff to the intestate’s use, which sum is still due to the defendant, as administrator: replication, that plaintiff owed nothing, &c.: rejoinder, and issue. 41 h. The statute of limitations, as to the administrator: replication, that the demand was made within three years, &c : reminder, and issue, ñth. Blene administrara: replication, assets : rejoinder, and issue.
    On the 1st of June 1799, the issues were tried, a verdict was given on ah the issues for the plaintiff, and the jury assessed damages at $3289.65. Judgment for damages, costs and charges.
    Writ of error. Errors assigned : 1st. That it does not appear on the pleadings, &c., that either plaintiff or defendant, was an alien, oi tnat they were citizens of different states : 2d. That there are blanks in the declaration for places, dates and sums : 3d. The general errors. Plea, in nullo est erratum : replication, and issue.
    *For the defendant in error,

      Balias lamented the obvious irr'egu- ps larities on the face of the record, though the merits were incontestibly established in his favor, by the verdict and judgment. He thought, however, that the court would give every reasonable intendment to the allegations of the record, in support of the judgment and verdict; and therefore, endeavored to distinguish the present case from the case of Bingham v. Cabot, 3 Dall. 382. In Bingham v. Cabot the defendant’s place of residence was not even stated; here, the defendants are stated to be merchants of Newbern, in the district of North Carolina. There, the plaintiffs were described generally of Massachusetts, &c. : here, the plaintiff is described specially of an island; and the cause of action is found to arise on accounts between merchant and factor. It has not been judicially decided, that the averment of alienage, or of citizenship of different states, as a foundation for the federal jurisdiction, must be positive ; and it is sufficient, in reason, if circumstantial evidence of the fact can be collected from the record. As to the blanks in the declaration, in relation to the sums, Balias requested án opportunity to consider how far the defect was cured by the verdict, or might be amended, if the court was not decisively against him on the first point.

      Ingersoll, for the plaintiff in error, observed,
    that the case was so very desperate, that it had been virtually abandoned by the opposite counsel. He should, therefore, decline troubling the court.
   By the Court.

The decision in the case of Bingham v. Cabot must govern the present case. Let the judgment be reversed with costs.


source: Caselaw Access Project

author: Ellsworth, Chief Justice.

license: Public Domain

text:
    Turner, administrator of Stanley, plaintiff in error, v. The President, Directors and Company of the Bank of North America, defendants.

      Jurisdiction. — Parties.
    Where an action is brought upon a promissory note, in a federal court, by an indorsee, against the maker, not only the parties to the suit, but also the payee, must be stated on the record, to be such as to give the court jurisdiction.

    Error from the Circuit Court of North Carolina. This was an action upon a promissory note, made in Philadelphia, by Stanley, the intestate, in favor of Biddle & Co., and indorsed by Biddle & Co. to .the Bank of North America.

      The declaration (which contained only a count upon the note itself) stated, that the president and directors of the bank were citizens of the state of Pennsylvania; and that Turner, the administrator, and Stanley, the intstate, were citizens of the state of North Carolina; but of Biddle & Co., the payees and indorsers of the note, there was no other designation upon the record, than “ that they used trade and merchandise in partnership together, at Philadelphia or North Carolina.”
    The error assigned and insisted upon, to wit, an insufficient description of Biddle & Co., was founded *on that part of the 11th section of the judicial act (1 U. S. Stat. 79) which declares, that no district or circuit court “ shall have cognisance of any suit to recover the contents of any promissory note, or other chose in action, in favor of an assignee, unless a suit might have been prosecuted in such court, to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange.”

      Ingersoll, for the plaintiff in error,
    argued, that unless it was averred upon the record, that the original parties to the note, as well as the parties to the suit, were of different states, or one a citizen, and the other an alien, it could not judicially appear, that the circuit court had jurisdiction of the cause. Though the federal courts are not to be regarded as inferior courts, they are courts of a limited jurisdiction. The jurisdiction of the state courts is general; but the jurisdiction of the federal courts is special, and in the nature of an exception from the general jurisdiction of the state courts. That the parties are citizens of different states, is one ground for the exception ; and so far as respects the immediate parties to the suit, the ground for the exception sufficiently appears upon the record. But if an action is brought by the indorsee of a promissory note, he cannot have the benefit of the exception, unless he shows that his indorser, as well as himself, was entitled to resort to a federal tribunal. Congress knew, that the English courts had amplified their jurisdiction, through the medium of legal fictions ; and it was readily foreseen, that by the means of a colorable assignment to an alien, or to the citizen of another state, every controversy arising upon negotiable paper might be drawn into the federal courts. Hence, the original character of the debt is declared to be the exclusive test of jurisdiction, in an action to recover it. Unless the original character of the note furnished a subject of federal jurisdiction, it is emphatically declared, that “ no district or circuit court shall have cognisance of the suit;” and a court of special jurisdiction cannot take cognisance of the suit, unless the case judicially appears by the record to be within its jurisdiction. Lord Coningsby’s Case, 9 Mod. 95. So, wherever a party takes advantage of a clause in a statute, to which a proviso is attached, he must not only bring his case within the general clause, but show that it is not affected by the proviso. 5 Bac. Abr. 666 ; Plowd. 410 ; Ld. Raym.
    Nor is the present too late a period to take advantage of the defect. Silence, inadvertence or consent cannot give jurisdiction, where the law denies it. In Bingham v. Cabot, 3 Dall. 382, the ground of jurisdiction was more- strongly laid ; and yet a similar defect was successfully assigned for error.

      Rawle, for the defendant in error.
    — It is not intended to controvert the general proposition, that where a suit is brought before an inferior court, the circumstances that gave it jurisdiction *must be set forth on the record ; and if they are omitted, it may be taken advantage of upon *- a writ of error. But the circuit court is not, in technical language or intendment, an inferior court; and this consideration alone destroys the application of most of the English authorities. It is, then, to be remarked, that the judicial power is the grant of the constitution; and congress can no more limit, than enlarge the constitutional grant. In the second section of the third article, the constitution contemplates the parties to the controversy, as alone raising the question of jurisdiction ; and if the existing controversy is “ between citizens of different states,” the judicial power of the United States expressly extends to it.  By the opposite construction, however, congress has imposed a limitation upon the judicial power, not warranted by the constitution, when, without regard to the immediate parties to the controversy, the law excepts from the cognisance of the federal courts, suits upon promissory notes, which, by assignment, have placed the immediate parties in the relation of citizens of different states. If the circuit court is not an inferior, neither is it, in the sense asserted, a limited jurisdiction, but it is a court of general jurisdiction, having some cases expressly excepted from its cognisance. It may be compared to the king’s bench in England, from whose general jurisdiction is excepted the cognisance of cases, belonging to the counties Palatine. Carth. 11, 12, 354; .1 Saund. 73; 2 Mod. 71-3. As to such courts, it is sufficient, if it appears to the appellate authority, that, from the subject-matter, the court below might have jurisdiction ; and at all events, it would be too late, on a writ of error, to take the exception — an objection not suggested in Bingham v. Cabot. Then, here, the parties are stated to be citizens of different states; the place was not exempt from federal jurisdiction; and the nature of the controversy did not, of itself, deprive the circuit court of its general cognisance of suits between citizens of different states.

       Mollan v. Torrance, 9 Wheat. 587; Bradley v. Rhiner, S Wall. 393; Morgan v. Gay, 19 Id. 81.

         Ellsworth, Chief Justice. — How far is it meant to carry this argument ? Will it be affirmed, that in every ease, to which the judicial power of the United States extends, the federal courts may exercise a jurisdiction, without the intervention of the legislature, to distribute and regulate the power ?
      Chase, Justice. — The notion has frequently been entertained, that the federal courts derive their judicial power immediately from the constitution; but the political truth is, that the disposal of the judicial power (except m a few specified instances) belongs to congress. If congress has given the power to this court, we , possess it, not otherwise : and if congress has not given the power to us, or to any other court, it still remains at the legislative disposal. Besides, congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal courts, to eveiy sub ject, in every form, which the constitution might warrant.

   The Chief Justice delivered the opinion of the Court, in the following terms :

Ellsworth, Chief Justice.

— The action below was brought by the president and directors of the Bank of North America, who *are well r!H.. described to be citizens of Pennsylvania, against Turner and others, who are well described to be citizens of North Carolina, upon a promissory note, made by the defendant, payable to Biddle & Co., and which, by assignment, became the property of the plaintiffs. Biddle & Co. are no otherwise described, than as “ using trade and merchandise in partnership together,” at Philadelphia or North Carolina : and judgment was for the plaintiff. The error assigned, the only one insisted on, is, that it does not appear from the record, that Biddle & Co., the promisees, or any of them, are citizens of a state other than that of North Carolina, or aliens.

A circuit court, though an inferior court, in the language of the constitution, is not so in the language of the common law ; nor are its proceedings subject to the scrutiny of those narrow rules, which the caution or jealousy of the courts at Westminister long applied to courts of that denomination ; but are entitled to as liberal intendments or presumptions in favor of their regularity, as those of any supreme court. A circuit court, however, is of limited jurisdiction: and has cognisance, not of cases generally, but only of a few specially circumstanced, amounting to a small proportion of the cases which an unlimited jurisdiction would embrace. And the fair presumption is (not as with regard to a court of general jurisdiction, that a cause is within its jurisdiction unless the contrary appears, but rather) that a cause is without its jurisdiction, until the contrary appears. This renders it necessary, inasmuch as the proceedings of no court can be deemed valid, further than its jurisdiction appears, or can be presumed, to set forth upon the record of a circuit court, the facts or circumstances which give jurisdiction, either expressly, or in such manner as to render them certain by legal intendment. Among those circumstances, it is necessary, where the defendant appears to be a citizen of one state, to show that the plaintiff is a citizen of some other state, or an alien ; or if (as in the present case) the suit be upon a promissory note, by an assignee, to show that the original promisee is so : for by a special provision of the statute, it is his description, as well as that of the assignee, which effectuates jurisdiction.

But here, the description given of the promisee only is, that “ he used trade” at Philadelphia or North Carolina; which, taking either place for that where he used trade, contains no averment that he was a citizen of a state, other than that of North Carolina, or an alien ; nor anything which, by legal intendment, can amount to such averment. We must, therefore, say that there is error. It is exceedingly to be regretted, that exceptions which might be taken in abatement, a ad often cured in a moment, should be reserved to the last stage of a suit, to destroy its fruits.

Judgment reversed.


text:
    *FEBRUARY TERM, 1800.
    Present, Cushing, Paterson, Chase and Washington, Justices.
    Mossman, surviving executor, Plaintiff in error, v. Higginson, surviving partner, Defendant in error.

      Amendment. — Description of parties.

    A writ of error, regularly tested, with a blank for the return-day, was allowed to be amended, the term to which it was returnable, the time when it was filed in the court below, and when in the supreme court, appearing by indorsements on the writ.

    In proceedings in a federal court, in equity, to foreclose, it is as necessary to describe the parties, as in any other suit.
    To give jurisdiction to a circuit court, it is not enough that an alien is a party; it must also appear that the other party is a citizen.

    This was a writ of error, to remove the proceedings on a bill in equity, from the Circuit Court for the district of Georgia, tested the 2 7th November 1798, returnable on the-- next. The case, on the bill and pleadings, was briefly this :
    Alexander W illy, an inhabitant of Georgia, being indebted to Higginson & Greenwood, British merchants, gave them a bond and mortgage, payable the first of January, 1773. In the year 1778, Willy was banished from the state of Georgia, and his estate confiscated by law. The mortgaged premises were seized and sold by the commissioners for forfeited estates, to certain purchasers, who afterwards sold the same to James Houston ; and the property remained in his possession, or in the possession of his executors, until the 12th of September 1796, when it was levied upon, sold and conveyed to William Mien, by the creditors of Houston ; notice of the mortgage having been given to Mossman, the executor of Houston, to Mien, the agent for his creditors, and to the marshal, before the sale. In March 1797. Higginson, the surviving mortgagee, filed the present bill, to foreclose the equity of redemption, stating himself to be a subject of Great Britain ; but in no part of the proceedings, were the defendants, or any of them, stated to be citizens of the United States. The defendants pleaded the confiscation laws of Georgia in bar, and answered *to the merits; but Wash- p. „ ington, Justice, overruled the pleas, and decreed, that unless William *- Mien paid the principal and interest of the debt, before the 17th of February 1799, the equity of redemption should be foreclosed. The merits of the decree were not, however, discussed on the writ of error, but the following points occurred:
    I. Dallas, for the plaintiff in error,
    moved to amend the writ, by inserting the return-day of the present term, in the blank. The writ is regularly tested, and by indorsements, it appeared, when it was filed below, and when it was filed here. The clerk of the circuit court had also indorsed, “ Returnable to February term 1799.” There is, therefore, sufficient matter to amend by; and the amendment is within the provision of the act of congress. (1 U. S. Stat. 91, § 32.)
    By the Court. — Let the amendment be made.
    II. It was objected by Ingersoll and Dallas, for the plaintiff in error,
    that the jurisdiction of the court did not appear upon the record, as there was no designation of the citizenship of the defendants. 3 Dall. 382, 369 ; Turner v. Enrille (ante, p. 7).
    It was answered, by E. Tilghman and Reed (of South Carolina), that as no process was prayed against Willy, he was not, in legal contemplation, a party to the suit (1 P. Wms. 693); that the prayer of process against Mossman, who never held the land, was irregular, and to be regarded as mere surplusage ; that there was no pretence to charge Houston ; and that Mien, being expressly stated to be the purchaser of the land, the court will take notice of the law of Georgia, by which no alien can hold real estate ; and by necessary implication, the purchaser must be a citizen. Besides, it is enough, under the constitution, the treaty of 1783, and the 11th section of the judiciary act, that an alien is a party to the suit, whose real object is the thing mortgaged, a proceeding in rem, and not a personal recovery. At all events, the court will permit the defect to be amended.

      Ingersoll, in reply.
    — The judiciary act was only intended to cany the constitution into effect, and cannot amplify or alter its provisions. The constitution nowhere gives jurisdiction (nor has an y judge ever countenanced the idea) in suits between alien and alien. It is not an exception to the rule, that the bill in equity is in the nature of a proceeding in rem : for there cannot be a foreclosure of the equity of redemption, without a personal suit. It is not like the case of a monition to condemn a prize-ship, which is notice to all the world, and no party respondent is requisite; and the supposed inference of citizenship from purchasing land fails, when it is recollected that the purchase does not fix the use. The jurisdiction of the federal courts (Const, art. III. § 2) *is not, where a question arises that may be J affected by a treaty, but where a case arises under a treaty ; and if a question on the validity of a treaty arises in a state court, there is a special provision for transferring it to the supreme court. (1 U. S. Stat. 84, § 22.) But in the present instance, it does not appear that any question can arise under the treaty; for it is not referred to, directly nor indirectly, in any part of the record. As to an amendment, there is nothing to amend by. The citizenship of the defendants could only be judicially known, by the admission of the parties, or by evidence of the fact. It is not expressly or Impliedly admitted ; and this court cannot try an issue to ascertain it.

       And see Course v. Stead, post, p. 22.

       Jackson v. Twentyman, 2 Pet. 136; Pic. quet v. Swan, 5 Mason 36; Wilson v. City Bank, 2 Sumn. 422; Prentiss v. Brennan, 2 Bl. C. C. 162; Robson v. Bernard, 3 Id. 245.

   By the Court.

— The decisions on this subject govern the present case ;

and the 11th section of the judiciary act can and must receive a construction consistent with the constitution. It says, it is true, in general terms, that the circuit court shall have cognisance of suits where an alien is a party;” but as the legislative power of conferring jurisdiction on the federal courts, is, in this respect, confined to suits between citizens and foreigners, we must so expound the terms' of the law, as to meet the case, “ where, indeed, an alien is one party,” but a citizen is the other. Neither the constitution, nor the act of congress, regard, on this point, the subject of the suit, but the parties. A description of the parties is, therefore, indispensable to the exercise of jurisdiction. There is here no such description ; and of course,

The writ of error must be quashed.


author: Washington, Justice. Chase, Justice. Paterson, Justice. *Cushing, Justice.

text:
    Cooper v. Telfair.

      Constitutional law.

    A state legislature, before the adoption of the constitution of the United States, had power to pass a bill of attainder and confiscation, unless restrained by the state constitution.
    The act of the legislature of Georgia, of the 4th of May 1782, inflicting penalties on, and confiscating the estate of such persons as are therein declared guilty of treason, is not repugnant to the constitution of that state.

      Semble, that this court can declare an unconstitutional law invalid.

      Queere? Whether this court can invalidate laws enacted previously to the adoption of the constitution of the United States.
    Error from the Circuit Court for the district of Georgia. The record exhibited the following case :
    Basil Cooper, at present of the island of Jamaica, in the dominions of his Britannic majesty, formerly an inhabitant of the state of Georgia, brought an action in the circuit court of Georgia, to November term 1797, against Edward Telfair, of the district of Georgia, upon a bond for 1000Í. sterling, equal to $4285.70, dated the 14th of May 1774.
    After oyer of the bond and condition, the defendant pleaded in bar, 1st, Payment: 2d, “That on the fourth day of May 1782, an act was passed by the legislature of the state of Georgia, entitled An act for inflicting penalties on, and confiscating the estate of such persons as are therein declared guilty of treason, and for other purposes therein mentioned,’ by which it is, among other things, enacted and declared, ‘ that all and every the persons, named and included in the said act, are banished from the said state ; and that all and singular the estate, real and personal, of each and every of the aforesaid persons, which they held, possessed or were entitled *to, in law or equity, on the 19th day of April 1775, and which they have held since, or do hold in possession, or others holding in trust for them, or to which they are, or may be, entitled, in law or equity, or which they may have, hold or be possessed of, in right of others, together with all debts, dues and demands of whatsoever nature, that are or may be owing to the aforesaid persons, or either of them, be confiscated to and for the benefit of this state.’ That the said Basil Cooper is expressly named and included in the above in part recited acts; and that he was, on the said 4th day of May 1782, and for a long time before, a citizen of the state of Georgia, and of the United States of America. That the said Basil Cooper, being a citizen, &e., owing allegiance, &c., on the 4th of May 1782, and for a long time before, adhered to the troops of his Britannic majesty, then at open war with the said state of Georgia and United States of America, and did take up arms with the said troops, &o. That the said Basil Cooper hath never since returned within the limits and jurisdiction of the said United States, or either of them. That by virtue of the above-recited act, and also of an act, entitled, ‘ An act to continue an act to authorize the auditor to liquidate the demands of such persons as have claims against the confiscated estates, and for other purposes therein mentioned,’ passed the 13th February 1786 : and of another act entitled ‘ An act to compel the settlement of the public accounts, for inflicting penalties on officers of this state, who may neglect their duty, and for vesting the auditors with certain powers for the more speedy settlement of the accounts of this state, with the United States,’ passed the 10th of February 1787 ; the sum of money mentioned in the condition of the bond, and all interest thereon, have become forfeited and confiscated to the state of Georgia ; and the right of action attached thereto ; and no cause of action hath accrued to the said Basil Cooper to demand and have of the said Edward Telfair, the said sum of money, &c.”
    To this plea, the plaintiff replied, “ that he was never tried, convicted or attainted of the crime of treason alleged against him ; and that by the con stitution of the state (in force at the time of passing the acts in the said plea set forth, to wit, on the 4th-day of May 1782), unanimously agreed to in a convention of the people of this state, on the 5th of February 1777, it is ordained, that—
    “Article 1. The legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.
    “ Article 7. The house of assembly shall have power to make such laws and regulations, as may be conducive to the good order and well-being of the state, provided such laws and regulations be not repugnant to the true intent and meaning of any rule or regulation contained in this constitution.
    “Article 39. All matters of breach of the peace, felony, murder and ’’■'treason against the state, to be tried in the county where the crime was committed, &c.
    “Article 60. The principles of the habeas corpus act shall be part of this constitution. ■
    “ Article 61. The freedom of the press, and the trial by jury, to remain inviolate for ever.
    “ And that the said recited acts, so far as they can operate to bar the said Basil from maintaining his action, are repugnant to the true intent and meaning of divers rules and regulations contained in the said constitution, and are, as to the action of the said Basil, null and void: without that, &c.” The defendant demurred to the replication ; and the plaintiff joined in demurrer.
    On the 2d of May 1799, the circuit court, composed of Ellsworth, Chief Justice, and Clay, District Judge, decided, that the replication was insufficient ; that the plea in bar was sufficient; and that judgment on the demurrer be entered for the defendant. Upon this judgment, the present writ of error was brought, and the following errors assigned : 1. The general errors. 2. That the plea does not set forth the constitutional power of the legislature of Georgia, to deprive the plaintiff of his rights as a citizen; and on their own authority, to pass sentence of confiscation and banishment. 3. That the judgment decides that the legislature had cognisance of the treason alleged against the plaintiff, and could legally try, convict and banisli him ; whereas, they had no such power, on constitutional principles. 4. That by the judgment, it appears, the legislature could deprive individuals of their lives and property, without trial by jury, or inquest of office, contrary to the constitution of Georgia. 5. That the judgment gives effect to an act of Georgia, which is an union and usurpation of judicial, as well as legislative powers; which powers the constitution declares should be kept separate.
    The case was argued by E. Tilghman, for the plaintiff, and by Ingersoll and Dallas, for the defendant, on the 7th of February 1800, upon the general question, whether the confiscation acts of Georgia, were repugnant to the constitution of the state, and therefore void ?
    For the plaintiff.

    — 1st. If the law is contrary to the constitution, the [*17 law is void ; and the judiciary authority either of the state, or of the United states, may pronounce it so. (2 Dall. 308, 410 ; 3 Ibid. 383.) 2d. The law is contrary to the constitution, inasmuch as it is an exercise of the judicial power by the legislative ^authority, in opposition to an express prohibition of such an union of jurisdiction. That acts of attainder, banishment and confiscation are an exercise of judicial power, the English as well as the American authorities, clearly establish. (2 Woodes. Lect. 621-2 ; 11 State Trials, 25 ; 6 Ibid. 405 ; 4 Inst.; 2 Woodes. 147 ; 3 Dall. 389.) 3d. Whatever right Georgia had to confiscate the property of her enemy ; yet, as the pleadings show the plaintiff to have been a citizen, his property could only be forfeited by the regular judgment of a court, upon a trial by his peers, or the law of the land. As the case is now presented, it is a legislative act, by which the property of an individual citizen is arbitrarily taken from him, and given to the state of Georgia. (3 Dall. 388, 389.)
    For the defendant.

    — It is conceded, that if the law plainly and obviously violates the constitution of Georgia, it is void, and never was a valid rule of action. The only question, therefore, to be discussed, is, whether such a fatal collision actually exists ? Or, in other words, whether the legislature of Georgia had a power, consistently with the constitution, to pass a law, confiscating the property of her own citizens, who had fled beyond the reach of the ordinary legal process ? 1st. Georgia, at the time of passing the law, was a sovereign, independent state, with all the rights, prerogatives and powers resulting from that character; except so far as she had expressly devolved on congress a portion of her sovereignty; an exception that does not affect the present case. 2d. To a corporation of the most limited nature, the power of passing by-laws is a necessary incident. And to every sovereign legislature, an indefinite power of making laws is equally an incident, restricted only by impossibilities ; for even if they should be against natural justice, Blackstone tells us, they would be valid. 3d. The constitution of Georgia does not declare, that “ no bill of attainder shall be passed.” There is, therefore, no express restriction of the sovereign legislative authority upon the subject; and to decide in favor of the restriction, would be to make, ex post facto, not to enforce, the constitution of Georgia. 4th. Such acts of attainder and confiscation were not novelties in America, any more than in England. (2 Woodes. Lect. 621, 624, 497, 498, 622. See Confiscation Acts of the several states.) They are exercises of political authority, rather than of judicial power; they are laws, not judgments. And as the power of attainder, banishment and confiscation, is essential to the existence and operations of government, yet, cannot be exercised by the ordinary tribunals of justice ; it naturally belongs to the sovereign, that is, to the legislature of the nation. 5th. But, independently of the necessity of the existence of such a power, and of the implication that it does exist under every constitution, unless it is expressly excluded, a just analysis of the H , various clauses of the constitution *itself (which contemplates a trial J by jury only in the case of an offence committed within a county of the state), the contemporaneous construction of the legislature of Georgia, the corroborative example of other states, whose constitutions contain the same provisions, and even the authoritative recommendations of congress, with the recognitions of the treaty of peace; demonstrate the legitimacy and validity of the acts of attainder and confiscation, which naturally grew out of the revolutionary war. 6th. Attainder and confiscation acts are most common in England ; yet, generally speaking, the judicial power and the legislative power, are there kept separate and distinct. (Blackstone, Woodeson, Montesquieu, De Lolme.) They are the exercise of a constitutional power of legislation. (2 Wood. 621, 647.) And to exercise a power, not within the scope of the judicial authority, cannot be confounding the distinct branches of the government.

         The federal courts have the power to declare an unconstitutional law invalid. Federalist No. 78; Marbury v. Madison, 1 Cr. 137; Cohens v. Virginia, 6 Wheat. 386, 414

   On the 13th of February 1800, the judges (except the Chief Justice, who had decided the cause in the circuit court) delivered their opinions, seriatim, in substance, as follows :

Washington, Justice.

— The constitution of Georgia does not expressly interdict the passing of an act of attainder and confiscation, by the authority of the legislature. Is such an act, then, so repugnant to any constitutional regulation, as to be excepted from the legislative jurisdiction, by a necessary implication ? Where an offence is not committed within some county of the state, the constitution makes no provision for a trial, neither as to the place, nor as to the manner. Is such an offence (perhaps, the most dangerous treason) to be considered as beyond the reach of the government, even to forfeit the property of the offender, within its territorial boundary ? If the plaintiff in error had shown, that the offence with which he was charged, had been committed in any county of Georgia, he might have raised the question of conflict and collision, between the constitution and the law : but as that fact does not appear, there is no ground on which I could be prepared to say, that the law is void. The presumption, indeed, must always be in favor of the validity of laws, if the contrary is not clearly demonstrated.

Chase, Justice.

— I agree, for the reason which has been assigned, to aifirm the judgment. Before the plaintiff in error could claim the benefit of a trial by jury, under the constitution, it was, at least, incumbent upon him to show, that the offence charged was committed in some county of Georgia, in which case alone, the constitution provides for the trial. But even if he had established that fact, I should not have thought the law a violation of the constitution. The general principles contained in the constitution are not to be regarded as rules to fetter and control; but as matter merely declaratory and directory; for even in the constitution "“itself, we may trace repeated departures from the theoretical doctrine, that the legislative, executive and judicial powers should be kept separate and distinct.

There is, likewise, a material difference between laws passed by the individual states, during the revolution, and laws passed subsequently to the organization of the federal constitution. New of the revolutionary acts would stand the rigorous tests now applied: and although it is alleged, that all acts of the legislature, in direct opposition to the prohibitions of the constitution, would be void ; yet, it still remains a question, where the power resides to declare it void? It is, indeed, a general opinion, it is expressly admitted by all this bar, and some of the judges have, individually, in the circuits, decided, that the supreme court can declare an act of congress to be unconstitutional, and therefore, invalid ; but there is no adjudication of the supreme court itself upon the point. I concur, however, in the general sentiment, with reference to the period, when the existing constitution came into operation ; but whether the power under the existing constitution, can be employed to invalidate laws previously enacted, is a very different question, turning upon very different principles; and with respect to which, I abstain from giving ah opinion ;. since, on other ground, I am satisfied with the correctness of' the judgment of the circuit court.

Paterson, Justice.

— I consider it a sound political proposition, that wherever the legislative power of a government is undefined, it includes the judicial and executive attributes. The legislative power of Georgia, though it is in some respects restricted and qualified, is not defined by the constitution of the state. Had, then, the legislature power to punish its citizens, who had joined the enemy, and could not be punished by the ordinary course of law ? It is denied, because it would be an exercise- of judicial authority. But the power of confiscation and banishment does not belong to the judicial authority, whose process could not reach the offenders : and yet, it is a power that grows out of the very nature, of the social compact, which must reside somewhere, and which is so inherent in the legislature, that it cannot be divested or transferred, without an express provision of the constitution.

The constitutions of several of the other states of the Union,, contain the same general principles and restrictions ; but it never was imagined, that they applied to a case like the present; and to authorize this court to pronounce any law void, it must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative application.

*Cushing, Justice.

— Although I am of opinion, that this court has |-*2 the same power that a court of the state of Georgia would possess, to *- declare the law void,. I do not think, that the occasion would warrant an exercise of the power. The right to confiscate and banish, in the case of an offending citizen, must belong to every government. It- is not within the judicial power, as created and regulated by the constitution oi Georgia: and it, naturally, as well as tacitly, belongs to the legislature.

By the Court. — Let the judgment be affirmed, with costs.


text:
    Williamson, Plaintiff in error, v. Kincaid.

      Jurisdiction in error. — Amoimt in controversy. — Supersedeas.
    If the value of the matter in dispute do not appear on the record, it may be shown by affidavit; but in such a case, the writ of error is not a supersedeas.

    Error from tbe Circuit Court of Georgia. It appeared from the record, that “Marian Kincaid, of Great Britain, widow, demanded against John G. Williamson, the one-third of 300 acres of land, &c., in Chatham county, as dower. That the tenant pleaded : 1st. The act of Georgia (passed the 1st of March 1778) attainting G. Kincaid (the demandant’s late husband), forfeiting his estate, and vesting it in Georgia, without office. 2d. The act of the 4th of May 1782, banishing G. Kincaid, and confiscating his estate. 3d. The appropriation and sale of the lands in question, by virtue of the said attainder and confiscation, before the 3d of September 1783 (the date of the definitive treaty of peace), and before G. Kincaid’s death. 4th. The alien-age of the demandant (who was resident abroad on the 4th of July 1776 and ever since), and therefore, incapable of holding lands in Georgia. That the demandant replied, that she and her husband were inhabitants of Georgia, on the 19th of April 1775, then under the dominion of Great Britain ; that her husband continued a subject of Great Britain, and never owed allegiance to Georgia, nor was ever convicted, by any lawful authority, of any crime against the state. That the tenant demurred to the replication, the demand-ant joined in demurrer, and judgment was pronounced by the circuit court (composed of Washington, Justice, and Clay, District Judge), for the demandant.” On this judgment, the writ of error was brought, and the following errors assigned. 1. The general errors. 2. The attainder of G. Kincaid and the forfeiture and sale of his estate ; so no right to dower accrued; and no land out of which it could be enjoyed. 3. The alienage of the widow, on the 4th of July 1776, and ever since, by which she was incapable to take and hold real estate in Georgia.
    The principal question (whether an alien British subject was entitled, under the treaty of peace, to claim and hold lands in *dower) was not ■* discussed, as the judgmént was reversed, for want of a sufficient description of the parties to the suit, on the authority of Bingham v. Cabot, 3 Dall. 382, and Turner v. Bank of North America (ante, p. 8). But an important point of practice was previously settled, relative to the mode of ascertaining the value of the matter in dispute, in an action like the present.
    For the plaintiff in error,
    it was admitted, in answer to an objection, that the value of the matter in dispute did not appear upon the record ; but it was urged that, from the nature of the subject, the demand of the plaintiff could not ascertain it; nor from the nature of the suit (like a case of ejectment, where the damages are only given for the ouster) could it be fixed by the finding of a jury, on the judgment of the court. 3 Bl. Com. 35-6.- As, therefore, there was no act of congress, nor any rule of the court, prescribing a mode to ascertain, in such cases, the value in dispute, that the party may have the benefit of writ of error, it was proposed to continue the cause, to afford an opportunity to satisfy the court, by affidavits, of the actual value of the property.

      Ingersoll and Dallas, for the plaintiff in error. E. Tighman, for the defendant in error.

       Course v. Stead, post, p. 22.

   By the Court.

— Be it so: let the value of the matter in dispute be ascertained by affidavits, to be taken on ten days’ notice to the demandant, or her counsel, in Georgia. But, consequently, the writ of error is not to be a supersedeas.


text:
    Blair et al., Plaintiffs in error, v. Miller et al.

      Practice.

    A writ of error, not returned at the term to which it is returnable, is a nullity.
    Writ of error from the Circuit Court of Virginia. The judgment was rendered in the circuit court, on the 28th of May 1799, and a writ of error issued, returnable to August term 1799 ; but the record was not transmitted, nor the writ returned into the office of the clerk of the supreme court, until the 4th of February 1800. Swift objected to the acceptance and return of the record and writ: And—
   By the Court.

— The writ has become a nullity, because it was not returned at the proper term. It cannot, of course, be a legal instrument, to bring the record of the circuit court before us for revision.

         See Course v. Stead, post, p. 22.


author: Chase, Justice.

text:
    *Rutherford et al., Plaintiffs in error, v. Fisher et al.

      Error.

    A writ of error will only lie, in the case of a final judgment.
    Error from the Circuit Court of New Jersey, sitting in equity. It appeared, that the defendants in the circuit court had pleaded the statute of limitations to the bill of the complainants ; and that the plea was overruled, and the defendants ordered to answer the bill. On this decree, the present writ of error was sued out, and Stoclcton (of New Jersey) moved to quash the writ, because it was not a final decree, upon which alone a writ of error would lie. (1 U. S. Stat. 84, § 22.) E. Tilghman, for the plaintiff in error, acknowledged the force of the words, “ final judgment,” in the act of congress ; and submitted the case, without argument.
   Chase, Justice.

— In England, a writ of error may be brought upon an interlocutory decree or order; and until a decision is obtained upon the writ, the proceedings of the court below are stayed. But here, the words of the act, which allow a writ of error, allow it only in the case of a final judgment.

By the Court. — The writ must be quashed, with costs.


text:
    The Charles Carter. Blaine v. The Ship Charles Carter et al.

      Error.

    Whatever may be the original nature of the suit in a circuit court, it cannot be removed into the supreme court, except by writ of error.
    This was an appeal from the Circuit Court of Virginia; and the preliminary question discussed was, whether such a process could he sustained? After argument—
   The Court decided, that the removal of suits, from the circuit court into the supreme court, must be by writ of error, in every case, whatever maybe the original nature of the suits.

       An appeal is allowed in eases of equity, admiralty and prize, by act of 8d March 1808 § 2 (2 D. S. Stat. 244); and R. S. § 692. .


text:
    Course et al. v. Stead and wife, et al.

      Amendment. — Jurisdiction vn error. — Averment of citizenship.— Judicial notice.

    The teste of a writ of error is amendable, of course.
    The value of the land in controversy may be shown by affidavit, to sustain the writ of error, if it do not appear on the record.
    If a new party and subject-matter be brought before the court, by supplemental bill, it must show that the court has jurisdiction, by reason of the citizenship of the parties to such supplemental bill.
    The federal courts will take judidial notice, without proof, of the laws of the several states.
    Error from the Circuit Court of the Georgia district, sitting in equity. On the record, it appeared, that upon the 5th of May 1795, an order has been made, in the case of Stead et al., executors of Stead, v. Telfair et al., the legal representatives of Rae & Somerville, “ that 363-U. 14s. Id. sterling, with interest at 5 per cent, from the 1st of January 1774, to the 5th of May 1795, deducting interest from the 19th of April 1775, until the 3d of September 1783, be paid to the complainants in that suit, with 5 per cent. * on the amount of principal and interest, *for making the remittance J to Great Britain. That the partnership property of Rae & Somerville, admitted by the defendants to be in their hands, be first applied to the payment of the complainants. That the lands belonging to J. Rae, or J. Somerville, deceased, referred to in the answers of the several defendants, and the title-deeds of which they admitted to be in their possession, bo sold by the marshal, and the proceeds be applied to satisfy the decree ; the deeds to be deposited with the clerk in three months.”
    On the 15th of November 1796, a second order was made by consent (Paterson, Justice, presiding), upon the report of the clerk, that, on the 4th of January 1796, the reremained due to the complainants $11,196.77; “that the partnership property of Rae & Somerville, in the hands of Telfair, be sold, and the bonds, &c., delivered over, under a general assignment. That if these assets are not sufficient to pay the debt, the remainder of Somerville’s property be sold; and after paying a prior judgment, shall be applied to the debt of the complainants. That a bond, admitted by W. Stephens, one of the defendants, to be in his hands, given by R. Whitfield & Co. to J. Rae, senior, be delivered to the complainants. That certain negroes, in the custody of S. & R. Hammond and J. Habersham, be sold, and applied to the payment of the complainants’ debt.”
    On the 2d of May 1797, Elizabeth Course, executrix of Daniel Course was made a defendant, upon motion of the solicitor for the complainants ; and on the 2d of April 1798, the supplemental bill was filed, which gave rise to the present writ of error, and on which a subpoena issued only against Elizabeth Course. This bill set forth the original bill of Stead et al. v. Telfair et al.; the orders and decrees above stated ; and the outstanding balance on the 4th of April 1798, amounting to $8479.58. It then alleged, “ that J. Rae, senior, was seised, in his lifetime, of a tract of 450 acres of land, which was subject to the decree in favor of the complainants ; and that Elizabeth Course held the said tract of land unjustly, and without title. And it concluded with praying a discovery of the title, and surrender of the premises in satisfaction of the decree ; and that the other defendants may disclose assets, &c.”
    On the 3d of April 1799, Elizabeth Course filed an answer to the supplemental bill, in which she set forth, “ that she found among her late husband’s papers a deed of the 5th .of May 1792, executed by F. Courvoise, tax-collector of Chatham county, to him, as purchaser at public auction, of the said tract of land, for 128i. 19s. id., for which a receipt was indorsed, and the deed recorded on the 24th of October 1792. That in virtue of the deed, possession was taken of the premises. That she believed the land came to J. Rae,' by devise or descent from his father, was sold for non-payment of taxes, and was purchased, bond fide, *by her late husband, whose title, in fee, is . warranted by the tax-laws of the state ; and as such is claimed by the [*24 defendant for herself and children.”
    The cause was heard, upon the former decree of 1796, the supplemental bill and answer before Ellsworth, Chief Justice, in May term 1799, when the court decreed, “ that the pretended conveyance be set aside, and held as void ; and the land sold to satisfy the debt of the complainants. Also, that certain negroes in the possession of William Stephens and Joseph Haber-sham, executors of Samuel Elbert, be sold and applied to the same object, &c.”
    The errors assigned upon the record (which consisted of a recital of the two orders of court, the supplemental bill and the proceedings on it, but not the original bill) were, in substance, the following :
    1. It does not appear that the partnership property was first applied to the payment of the claimants’ debt, conformable to the decree of the 25th of May, 1795 : and, if so applied, it might have been sufficient.
    2. The decree orders certain negroes in the possession of Habersham and Stephens, executors of Elbert, to be sold, whereas, it was denied, that the negroes were in their hands, but it was admitted that they were in the possession of the minor children of the said Elbert; and proof to the contrary was not made, nor were, the children parties to the suit.

      3. The negroes, presumed to be assets of J. Rae, are ordered to be sold, exclusively of property in the hands of the other defendants, without equality or apportionment.
    4. The facts stated in the answer are to be taken as true, since the complainants did not reply ; and thence it appears, that the purchase of the land was bond fide, for a valuable consideration, under the sanction of a public officer, whose acts were annulled by the decree, without any evidence of fraud or imposition.
    5. The exhibits referred to in the supplemental bill (to wit, the two orders of court above mentioned) were not filed with the bill, and were inadmissible as evidence.
    6. That all the heirs, as well as the widow of Daniel Course, should have been made parties, particularly the minors, who are under the peculiar protection of a court of equity.
    7. Real and personal estate are on the same footing, by the law of Georgia, equally under the management of executors or administrators. And as there are other creditors to be affected by the decree, the legal representatives of Daniel Course should have been parties to the suit.
    8. The facts on which the decree was founded do not appear on the record.
    9. The court had not power, under the circumstances of the case, to order the sale of real estate.
    *Though this view of the record is given, for the sake of the points discussed and decided in the circuit court, the merits, on the errors assigned, were not discussed or decided in this court;  but the following points occurred.
    I. Ingersoll, for the defendants in error,
    objected, that the writ of error was not tested as of the last day of the last term of the supreme court; nor, indeed, of that term at all; for the court had risen before the day of its teste.

      Dallas observed, in answer,
    that there was no rule, either legislative or judicial, prescribing the date of the teste of a writ of error; that in Georgia, it might not be practicable, in many cases, to know the last day of the term of the supreme court, whose session was not limited; that if the writ is issued, in fact, after the preceding term, and returned, sedente curia, to the present term, it is regular ; and that it is not like the case of a term intervening, between the teste of a writ of error, and the delivery of the record to the clerk of the court.

    By the Court. — The objection is not sufficient to quash the writ of error. The teste may be amended by our own record of the duration of the last term; and it is, of course, amendable.
    II. Ingersoli objected that the writ of error was not directed to any circuit court; for its address was “to the judges of the circuit court, holden in and for the district aforesaidwhereas, no district was previously named.

      Dallas, in reply,
    observed, that the district of Georgia was indorsed on the writ, that the attestation of the record was in Georgia, and that the record returned was from the circuit court of the Georgia district.
    By the Court. — The omission is merely clerical. We wish, indeed, that more attention were paid to the transcribing of records; but there is enough, in the present case, to amend by; and therefore, let the omission be supplied.
    III. Ingersoll objected, that the value of the matter in dispute does not appear, upon the record, to be sufficient to sustain a writ of error. The land, which is the immediate subject of the supplemental bill, was sold for 128?. 19s. 4c?., and that is the only criterion of its value exhibited to the court.

      Dallas.

    — The value of the property in dispute, must be its actual value for the purposes of jurisdiction. The price, at a forced sale for taxes, many years ago, cannot rationally be taken for the actual value of the land, with its meliorations. The court will, therefore, permit the plaintiff in error to ascertain the fact by affidavits, on notice to the opposite party. It was so done in Williamson v. Kincaid {ante, p. 20).
    *By the Court. — Let the rule be entered on the same terms, as in the case of Williamson v. Kincaid.

       *■
    These preliminary objections to the writ being obviated, and the depositions being returned, to prove the value of the land (which was sufficient to sustain the writ of error), Dallas argued for a reversal of the decree of the circuit court, on two grounds:  1st, On the merits ; and 2d, On the want of a description of the parties, so as to give a federal jurisdiction.
    1st. On the merits. — The hearing on the bill and answer operates as a tacit admission of the facts stated in the answer; which is not contradicted in any respect; and which establishes Daniel Course’s purchase of the land in question, as a fair and valid transaction. (Hind. Pr. Ch. 416-7, 289, 441.) The widow Course was not a party to the original bill; and cannot, therefore, be bound by the decree in that case. The defendants to the original bill are not parties to the supplemental bill; for process is only prayed and issued against the widow. Yet, the decrees in the original suit are referred to as exhibits, though not filed, in the supplemental suit; and in the supplemental suit, a decree is pronounced against the defendants in the original suit as well as against the widow, who is the sole defendant. Besides, the question is emphatically a question of assets to paya debt, for which partnership property was first responsible; and the personal estates of the debtors before their real estates. Yet, no account is given of the partnership fund; and neither the minor heirs, nor other legal representatives of Daniel Course, are made parties to the suit, though their interest is expressly stated in the answer. (Hind. Pr. Ch. 2, 8, 10, 420, 288-4 ; Mitf. 89, 145.)

      2d. On the want of description. — The only descriptive addition to the name of Elizabeth Course, throughout the record, is that she is the “ widow of Daniel Course, deceased.;” not stating that either he or she was a citizen of the state of Georgia. (Bingham v. Cabot, 3 Dall. 382; Mossman v. Higginson, ante, p. 12; Turner v. Bank of North America, ante, p. 8; Turner v. Enrille, ante, p. 7.) It would be extravagant, to infer citizenship from mere residence, nor can it be successfully urged, that because the parties to the original bill (which, by the by, is not attached to the writ of error) were well described, this court has jurisdiction on the supplemental bill, against a new party, not described, not pledged by any joint contract, and not connected in privity or interest with the defendants to the original bill. (Mitf. 31.)

      Ingersoll, for the defendant in error, answered:
    1st. On the merits. — ■ #2*1 The decree of the circuit court was not pronounced simply *on the •* supplemental bill and answer; but on the decrees in the original suit, which liquidated and fixed the quantum of the debt; the conveyance to Daniel Course ; and the tax-laws of the state of Geoi'gia. The conveyance was charged to be a fraudulent, pretended deed, which was a matter of fact (3 Dali. 321); and it was ascertained (not merely by the inadequate consideration, but) by reference to the tax-laws, which did not authorize the sale at the time when it took place, nor at any time, if there were personal assets ; and consequently, the court was bound to regard it as a nullity,
       The objection, on the score of parties, cannot prevail against the decree, that virtually finds the conveyance to be fraudulent; and therefore, that no one claiming under it could derive a title or interest in the land. Besides, the widow Course is the tenant in possession of the premises, and the natural object of the supplemental bill; she must be presumed to have given notice to all proper persons ; and after all, if the objection has weight, it is sufficient to answer, that no one will be boxrnd by the decree, to whom, on px-inciples of law and equity, it does not extend.
    2d. On the want of description. — It is not necessary to describe the parties in the supplemental suit, which is merely an incident of the original bill, and must be brought in the same court. The citizenship, however, of the plaintiff in error does sufficiently appear, by reasonable presumption and necessary implication. It has never been decided, that the very term “ citizens and aliens,” must be used in the description; but if the description faii-ly imports, that one party to the suit is an alien, and the other party a citizen ; or that the parties are citizens of different states.; the court will assert its jurisdiction. Then, the purchase and possession of real estate announce the character of citizen; since aliens cannot purchase and hold real estate in Georgiaand the long residence of • Daniel Course, the purchaser, and his family, in the state, is a circumstance strongly corroborative. If the widow is sufficiently described, to show that she was a citizen of Georgia ; there can be no doubt, that the complainants are sufficiently described as aliens.

       The order was made when Blaik, Justice, presided. The deduction of interest during the war (this being a British debt) has not received the sanction of all the fed eral judges. See 2 Dall. 104, in note.

       See Blair v. Miller, ante, p. 21.

       For decisions on the merits, see Telfair v. Stead, 2 Cr. 407, and Stead v. Course, 4 Id. 408.

       The case was argued, on these grounds, at Washington, after the removal of the seat of government; but with this intimation, it is thought most convenient to con tinue the report, under the term i' which it commenced.

       See Bush v. Parker, 5 C 257; Richmond v. Milwaukee, 21 How. 391.

         When Ingersoll was about to read the statutes of Georgia, Dallas observed, that they were not recited on the record; and that it might be a question, whether their existence ought not to have been established, as a fact, in the court below. But the Court said, there could be no ground to refuse the reading of a law of any of the states.  It appeared, however, that, on the point of time, Ingersoll referred to the statute for a tax of a different year, from that in which the sale was made.

       s. p. Owings v. Hull, 9 Pet. 607; Griffing v. Gibb, 2 Black 519; Cheever v. Wilson, 9 Wall. 108; Junction Railroad Co. v. Bank of Ashland, 12 Id. 226; Gordon v. Hobart, 2 Sumn. 402; Woodward v. Spafford, 2 McLean 168; Jasper v. Porter, Id. 579; Starr v. Moore, 3 Id. 354; Jones v. Hays, 4 Id. 521; Miller v. McQuerry, 5 Id. 469; Mewster v. Spalding, 6 Id. 54; United States v. Quinn, 8 Bl. C. C. 48; Bennett v. Bennett, 1 Deady 299; Merrill v. Dawson, Hemp. 563.

   By the Court.

— Having examined the record in the case of Bingham v. Cabot, we are satisfied, that the decision there must govern upon the present occasion. It is, therefore, unnecessary to form or to deliver any opinion upon the merits of the cause. Let the decree of the circuit court be reversed.


text:
    *AUGUST TERM, 1800.
    Present — Paterson, Chase, Washington and Moore, Justices.
    Priestman, Plaintiff in error, v. United States.

      Forfeiture under the revenue laws.

    Foreign goods, exceeding $800 in value, transported across a state, without a permit, in violation of the act of 18th February 1793, are liable to forfeiture, though not the property of the master, owner or any mariner of the vessel in which they were imported, and although the duties were paid on them, at the port of entry.
    In Error from the Circuit Court for the Pennsylvania district. An information was filed in the district court in the following terms :
    “ Be it remembered, that on the 16th day of January 1798, into the district court 'of the United States for the Pennsylvania district, in his proper person, comes William Rawle, attorney for the said United States for the district aforesaid, who for the said United States in this behalf prosecutes, and for the said United States gives the court here to understand and be informed, that between the first day of November last past, and .the exhibition of this bill, two hundred and three silver watches, three gold watches, two enamelled watches, two metal watches, two hunting watches, and seven pinchbeck watches, being articles of foreign manufacture, and liable to the payment of duties imposed by the laws of the United States, and being together of the value of $800 and more, were transported from the state of Maryland, across the state of Delaware, to the district of Pennsylvania, without a permit from the collector of any district in the said state of Maryland, for that purpose first had and obtained. .And the attorney aforesaid, prosecuting as aforesaid, further gives the court to understand and be informed, that the said goods, wares and merchandises, so as aforesaid transported to «the district of Pennsylvania, were not, within twenty-four hours after the arrival thereof in the said district of Pennsylvania, *- reported to the collector of the said district of Pennsylvania, by the owner or consignee thereof, or by any other person whatever. Whereby, and by force of the acts of the congress of the said United States, the said two hundred and three silver watches, three gold watches, two enamelled watches, two metal watches, two hunting watches, and seven pinchbeck watches have become forfeited to the said United States; and for the causes aforesaid have been seized by Sharp Delany, Esquire, collector of the said district of Pennsylvania, and are now in the custody of the marshal, &c. Wherefore, the said attorney, prosecuting as aforesaid, prays the advice of the court upon the premises, and due process, &o.”

    This information was founded on the act of congress, entitled “ An act for enrolling and licensing ships or vessels, to be employed in the coasting trade and fisheries, and for regulating the same ” (1 U. S. Stat. 313), and particularly, upon the 19th section of the act, which is in these words :

      “ § 19. That it shall and may be lawful for the collector of the district' of Pennsylvania to grant permits for the transportation of goods, wares or merchandise of foreign growth or manufacture, across the state of New Jersey, to the district of New York, or across the state of Delaware, to any district in the state of Maryland or Virginia; and for the collector of the district of New York to grant like permits for the transportation across the state of New Jersey ; and for the collector of any district of Maryland or Virginia to grant like permits for the transportation across the state of Delaware to the district of Pennsylvania: provided, that every such permit shall express the name of the owner or person sending such goods, and of the person or persons to whom such goods shall be consigned, with the marks, numbers and description of the packages, whether bale, box, chest or otherwise, and the kind of goods contained therein, and the date, when granted; and the owner or person sending such goods shall swear or affirm that they were legally imported and the duties thereupon paid or secured : And provided also, that the owner or consignee of all such goods, wares and merchandise shall, within twenty-four hours after the arrival thereof at the place to which they were permitted to be transported, report the same to the collector of the district where they shall so arrive, and shall deliver up the permit accompanying the same, and if the owner or consignee aforesaid shall neglect or refuse to make due entry of such goods, within the time, and in the manner herein directed, all such goods, wares and merchandise shall be subject to forfeiture ; and if the permit granted shall not be given up, *30l Within the time limited for making the said report, the person or persons to whom it was granted, neglecting or refusing to deliver it up, shall forfeit fifty dollars for every twenty-four hours it shall be withheld afterwards : provided, that where the goods, wares and merchandise, to be transported in manner aforesaid, shall be of less value than $800, the said oath and permit shall not be deemed necessary, nor shall the owner or consignee be obliged to make report to the collector of the district where the said goods, wares and merchandise shall arrive.”
    William Priestman, the plaintiff in error,
    filed a claim for the watches, setting forth “ that he had paid the duties upon them, and that he did not transport them from the district of Maryland, across the state of Delaware, into the district of Pennsylvania.” The attorney of the district having filed a general replication to the claim, a case was made for the opinion of the court, in which the material facts were stated as follows :

      “ That the watches in question were of the value of $3899. That they were imported into the district of Maryland, and the duties thereon paid or secured, according to law. That they were afterwards carried by the claim ant, or, his agent, from the district of Maryland across the state of Delaware, to the state pf Pennsylvania, to wit, to the city of Philadelphia, without any license or permit so to do, first had and obtained from the collector of the port of Baltimore ; and that no notice was given to the collector of the port of Philadelphia. That the watches were publicly offered for sale, next door to the custom-house, in the city of Philadelphia, with a number of other articles; and were afterwards seized as forfeited. That the watches did not belong to the master, owner or any mariner of the ship or vessel in which they were imported from beyond sea into Baltimore ; nor was the claimant, captain, owner or mariner of the packet-boat in which they were brought from Baltimore to Frenchtown, or from Newcastle to Philadelphia.”
    The case was argued before the district judge, in December 1798, and a decree of condemnation pronounced ; which was affirmed upon a writ of error to the circuit court, in April term 1880 ; and, thereupon, the cause was removed into this court; *and argued upon the same facts, by the district-attorney (Mawle, in the absence of Lee, attorney-general), *- for the United States, assisted by W. Sergeant, for the informer; and by Ingersoll and S. Levy, for the plaintiff in error.
    For the plaintiff in error.
    — This is a penal act, and must, on general principles,-be construed strictly. 1 Black. Com. 88, 92 ; Plowd. 109 ; 3 Co. 7 ; Plowd. 13 b; 19 Yin. Abr. 523-4 ; 8 Mod. 7, 65 ; 10 Co. 73 ; Cowp. 355, 660. In the particular case before the court, the facts call for the most liberal exposition in favor of the claimant; since, there is not the slightest ground to impute a fraudulent intention to him; nor could there be the smallest loss of revenue to the public. Taking, then, the 33d section of the same act of congress into view, to form a just conclusion from the whole, the watches in question aro exempted from any forfeiture, because they did not belong to the master, owner or mariners of the vessel in which they were imported, and because the duties upon them had been previously paid or secured, (a) It must, indeed, be admitted, that there is an apparent contradiction between the 19th section, which imposes the forfeiture, if the owner or consignee of the goods neglects to perform the duties prescribed; and the 33d section, which exempts the goods from forfeiture, if they belong to any person, other than the owner, master or mariners of the vessel: but the different parts of statutes should be so construed, that each, if possible, mayhave an operation, consistent and harmonious with the rest. Admitting, therefore, that *321 claimant within the ^description of the 19th section, to incur a forfeiture, the apparent contradiction of the law will be obviated, by admitting also that the previous payment of the duties on the goods, exempts him from the forfeiture, under the 33d section. Besides, the information does not state, that the master of the vessel had no manifest; and to constitute the offence, the act of irregular transportation must be connected with the want of a manifest, conformable to the 18th section. The 19th section (and, indeed, the whole of the law, which is made emphatically to regulate the coasting trade), from the plain import of its language, applies to cases of water carriage, and cases of water carriage are equally the subject of the 33d section. Nor is there anything in the case stated, to show that the watches were not transported coast-wise ; or brought in the owner’s private carriage ; and even the 19th section does not contain an injunction upon the owner to take out a permit for his goods, on which he has paid the duties, to whatever place he may choose to remove them.
    For the United States.

    — Though penal laws are to be strictly construed, they are to be fairly and truly construed, according to the plain and natural signification of the words employed. 2 Ld. Raym. 1421; 1 Dali. 197 ; 10 Co. 73. If, however, the claimant’s construction should prevail, the sweeping operation of the 33d section of the act would annihilate its most positive and most salutary sanctions: but a proviso, so repugnant to the enacting clauses, would itself be void. 1 Bl. Com.; 1 Co. Rep. 47.  The case stated brings the facts precisely within the information; and the information is precisely within the 19th section. The forfeiture is, therefore, complete, and must be enforced by the court, unless it is remitted by the operation of the 33d section. It becomes important, then, to inquire: 1st. What is the true meaning of this ambiguous, and, certainly, ungrammatical clause ? and 2d. To what does the true meaning relate ?
    1st. The first difficulty that occurs, in settling the meaning of the 33d section, arises from the indefinite call for a noun, to correspond with the verb, where several nouns are introduced, and all cannot be applied. Is it the ship, the master, or the cargo, which, in the specified case, shall be exempted from any forfeiture? The marginal note declares the exemption in favor of the ship ; but the argument of the claimant asks it for the cargo. The 33d section, however, is, in form and substance, a proviso ; and as such, naturally refers to the next preceding section, where are to be found the offences from which the forfeiture springs, and the subject on which the forfeiture attaches ; § 32, to wit: 1st. The transfer of a licensed ship to an alien. 2d. The employment of a licensed vessel in a trade not licensed. 3d. The possession of a forged or altered license. 4th. The possession of a license granted for another ship. In these four cases, the ship and the *eargo on board, are declared to be the subject of forfeiture. But the exemption from forfeiture, contained in the 33d section, is not, in the generality of the expression, confined to the four cases ; but extends to “ any forfeiture under this act, anything therein contained to the contrary notwithstanding.” Must not the nature of the offence be considered, then, to qualify the generality of the expression ? In the 5th section, it is enacted, that if a vessel is found with a forged or altered license ; or makes use of a license granted for another vessel, the offending vessel, and the cargo on board, shall be forfeited. In the 6th section, it is enacted, that if a vessel is found in the coasting trade, or carrying on the fisheries, without being enrolled and licensed, and having a foreign cargo, or distilled spirits, on board, she and her lading shall be forfeited. In the 8th section, it is enacted, that if an enrolled or licensed vessel sails on a foreign voyage, without first surrendering her license, and taking out a register, she and her cargo shall be forfeited. And in the 21st section, it is enacted, that if a vessel, licensed for the fisheries, is found within three leagues of the coast, with foreign merchandise on board, exceeding in value $500, she and her cargo shall be forfeited, unless she had previously obtained permission to touch at a foreign port. Now, in all these sections, the forfeiture of the cargo is cumulative, derivative and accessary to the forfeiture of the vessel ; and the punishment is inflicted for offences committed by the master or owner of the ressel. Hence, the policy and justice of the provision of the 33d section, in contemplation of such cases, to prevent one man’s suffering for another man’s wrong, by exempting from forfeiture, the cargo on board the delinquent vessel, to whose owners, master or mariners, the cargo did not belong. With reference, therefore, to the nature of the offences enumerated in the next preceding section, the exemption from “ any forfeiture under this act,” must be confined to forfeitures of the same kind ; that is, to forfeitures of vessels and their cargoes, for the acts or omissions of the owners or masters of the vessels. But still, there are specific and appropriate forfeitures, arising from the misconduct of the owners of goods. Thus, if the owner of goods transport them, by water, from district to district, they must be accompanied with a manifest, or they will be liable to forfeiture, under the 18th section. And if he transport them by land, he must obtain a permit, under the same penalty, in compliance with the 19th section. The same principle which suggested the necessity of a manifest in the one case, required the permit in the other ; and if the goods are not included in the manifest, or, of course, if not included in the permit, they are forfeited. It is idle to argue from the supposed inutility of requiring the permit. It is an incident in a general system, that must be maintained in all its parts ; for at the sligh' -.st aperture, the most inconvenient mischiefs may enter,

      *2. In answering the second general inquiry (to what does the true meaning of the 33d section refer?) it is proper more particularly to observe, that the 19th section clearly provides for the case of a transportation by land carriage : because it speaks of a transportation “ across a state,” which (as no canal is established) must be by land. If by land, it cannot involve the agency of a ship or vessel, and as the proviso of the 33d section refers to the forfeiture of a ship or vessel, and not of a wagon or stage, as it does not describe goods, generally, but a lading or cargo, on board, it is utterly inapplicable to a case of internal land carriage; and must be considered as referring only to cases of water transportation; or, in other words, to the coasting trade.

         The circuit court was composed of Chase, Justice, and Peters, District Judge. The presiding judge, in delivering the opinion of the court, made the following observations :
      Chase, Justice. — By the rules which are laid down in England for the construction of statutes, and the latitude which has been indulged in their application, the British judges have assumed a legislative power; and on the pretence of judicial exposition, have, in fact, made a great portion of the statute law of the kingdom. Of those rules of construction, none can be more dangerous, than that, which, distinguishing between the.intent and the words of the legislature, declares, that a case not within the meaning of a statute, according to the opinion of the judges, shall not be embraced in the operation of the statute, although it is clearly within the words; or, vice versa, that a case Within the meaning, though not within the words, shall be embraced.- For my part, however, sitting in an American court, I shall always deem it a duty to conform to the expressions of the legislature, to the letter of the statute, when free from ambiguity and doubt; without indulging a speculation, either upon the impolicy or the hardship of the law. In the present instance, the clause of forfeiture is clear, direct, and positive. If the provision of the 33d section were equally clear, and necessarily connected with the subject of' the 19l,h section, it would, undoubtedly, control the clause of forfeiture. But say, even, that the 33d section is obscure in its terms, and doubtful in its relation (which I do not admit), this would not induce me to supersede, control and annul, what is neither obscure nor doubtful, in the provisions of the 19th section. Upon the whole, the effect, in the present case, will, probably, be severe upon the claimant, if he has only been guilty of an act of negligence: but the law does not distinguish, as to the present object, between a careless, and a fraudulent, omission of the duty prescribed, and the court cannot do it.

         § 33. “ That in all cases where the whole, or any part of the lading or cargo on board any ship or vessel, shall belong bond fide to any person or persons, other than the master, owner or mariners of such ship or vessel, and upon which the duties shall have been previously paid or scoured, according to law, shall be exempted from anj forfeiture unde: this act, anything hereir. emtained to the contrary notwithstanding,”

   On the 15th of August, the judges briefly delivered their opinions, seriatim, concurring in the following result:

By the Court.

— The case stated comes clearly within the 19th section of the act of congress, for enrolling and licensing vessels to be employed in the coasting trade and fisheries. The provisions of the section are salutary, and were made to guard against frauds upon the revenue, in the transportation of goods of foreign growth or manufacture, across the several states. Public policy, national purposes, and the regular operations of government require, that the revenue system should be faithfully observed and strictly executed. It is obvious, that the claimant is an offender, within the purview of the 19th section. To purge the offence, he relies upon the 33d section of the same act. But it is too plain for argument, that this section cannot, by any fair and rational construction, be made to refer to the 19th section. •. It is inapplicable, because the objects are entirely different.

Judgment affirmed.


text:
    The Amelia. Talbot v. The Ship Amelia, Seeman, Claimant.

      Salvage.

    The officers and crew of a ship of war are entitled to salvage, for the recapture of an armed neutral vessel, from a foreign belligerent, by whom she had been manned with a prize crew.
    Error from the Circuit Court of New York. It appeared on the record, that Captain Talbot, of the frigate Constitution, having recaptured the Amelia, an armed Hamburg vessel, which had been captured by a French national corvette, and ordered to St. Domingo for adjudication, brought her into the port of New York. A libel was, thereupon, filed in the district court, by the recaptor, setting forth the facts, and praying that the vessel and cargo might be condemned as prize ; or that such other decree might be pronounced as the court should deem just and proper.
    A claim was filed by H. F. Seeman, for Chapeau Rouge & Co., of Hamburg, the owners, insisting that the property had not been changed by the capture, and pravii g restitution, with damages and costs. The District Judge, Hobart, decreed one-half of the gross amount of sales of ship and *„51 cargo, ^without deduction (a sale having been made by consent), to •* be paid to the recaptors, in the proportions directed by the act of congress for the government of the navy; and the other half, deducting all costs and charges, to be paid to the claimants.
    T'.u cause was brought by appeal before the circuit court, Washington J ustice, presiding, who reversed the decree of the district court, so far as it ordered payment of one-half of the gross sales to the recaptors, “ considering that, as the nation to which the owners of the said ship and cargo belong, is in amity with the French republic, the ship and cargo could not, consistently with the laws of nations, be condemned by the French, as a lawful prize; and that, therefore, no service was rendered by the Constitution, or by the commander, officers or crew thereof, by the recapture aforesaid ; ” and affirmed the rest of the decree. On the decree of the circuit court, the present writ of error was instituted ; and the following statement of facts made a part of the record by consent:
    “ The following case is agreed upon by the parties, to be annexed to the writ of error in this cause, viz.: The ship Amelia sailed from Calcutta, in Bengal, in the month of April 1799, loaded with a cargo of the produce and manufacture of that country, consisting of cotton, sugars and dry goods in bales, bound to Hamburg. On the 6th of September, in the same year, the same was captured,' whilst in the pursuit of her said voyage, by the French national covette La Diligente, L. I. Dubois, commander, who took out her captain and part of her crew, together with most of her papers, and placed a prize-master and French sailors on board of her, ordering the prize-master to conduct her to St. Domingo, to be judged according to the laws of war. On the 15th of the same month of September, the United States ship of war, the Constitution, commanded by Silas Talbot, Esquire, the libellant, fell in with, and recaptured the Amelia, she being then in full possession of the French, and pursuing her course for St. Domingo, according to the orders received from the captain of the French corvette. At the time of the recapture, the Amelia had eight iron cannon mounted, and eight wooden guns, with which she had left Calcutta, as before stated. From such of the ship’s papers as were found on board, and the testimony in the cause, the ship Amelia, and her cargo, appear to have been the property of Chapeau Rouge, a citizen of Hamburg, residing and carrying on commerce in that place. It is conceded, that the republic of France and the city of Hamburg are not in a state of hostility to each other, and that Hamburg is to be considered as neutral between the present belligerent powers. *The Amelia and her cargo, having been sent by captain Talbot to p.. New York, were there libelled in the district court, and such pro- L ceedings were thereupon had in that court, and the circuit court for that district, as may appear by the writ of error and return.
    Alexander Hamilton, of counsel for plaintiff in error.
    B. Livingston, of counsel for defendant in error.”
    The cause was argued, on the 11th, 12th and 13th of August 1800, by Ingersoll and Lewis, for the plaintiff in error; and by M. Levy and Dallas, for the defendant in error. The general points of the discussion were thése: '

    1st. Whether the Amelia could be considered, at the time of the recapture, as a French armed vessel, within the meaning of the act of congress, which authorizes the seizure of French armed vessels ? (1 U. S. Stat. 572.)

      2d. Whether Captain Talbot was authorized to make a recapture, the Amelia belonging to a power, equally in amity with the United States, and with France ?
    3. Whether on positive statute, or general principles, a salvage was due to the recaptors, for rescuing the Amelia from the French ?

       s, c, l Cr, l

   On the 18th of August, Paterson, Justice, stated, that it was the wish of the court to postpone the cause, for further argument, before a fuller bench. It was, accordingly, argued again, at Washington, in August term 1801, by Ingersoll and Bayard (of Delaware), for the plaintiff in error; and by M. Levy, J. T. Mason (of Maryland) and Dallas, for the defendant in error. And Marshall, Chief Justice, delivered the judgment of the court, “ that the decree of the circuit court was correct, in reversing the decree of the district court, but not correct in decreeing the restoration of the Amelia, without paying salvage. This court, therefore, is of opinion, that the decree, so far as the restoration of the Amelia without salvage is ordered, ought to be reversed r and that the Amelia and her cargo ought to be restored to the claimant, on paying for salvage one-sixth part of the net value, after deducting therefrom the charges which have been incurred.”

       A full report of the arguments, on the first hearing of this cause, was prepared: but they are found so ably incorporated with the arguments on the second hearing, in Mr. Cranch’s Reports, that it has beer thought unnecessary to publish it in this volume. 1 Cr. 1.