text:
Dupont v. Vance/Opinion of the Court

This is an appeal from a decree of the Circuit Court of the United States for the eastern district of Louisiana.

The libel alleges that the appellants shipped on board the brig Ann Elizabeth, at Wilmington, in the State of Delaware, a large quantity of gunpowder, to be carried to New Orleans, in the State of Louisiana; and that, on the shipment thereof, bills of lading, in the usual form, were signed by the master of the brig; that, according to the invoices of the merchandise specified in the bills of lading, its value was $7,233.75; that, on the arrival of the brig at New Orleans, the libellants required the delivery of the merchandise thus shipped, but they received only a part thereof; and that the part not delivered consisted of 1,646 packages, which, according to the same invoice valuation, amounted to the sum of $5,936.54.

The libel further alleges that no part of that sum has been paid to the libellants; and it prays process against the brig, and a decree for the damages thus demanded, and for such other relief as shall to law and justice appertain.

The master of the brig, intervening for his own interest and that of his part-owners, admits that the shipment of goods was made, as alleged in the libel; but propounds that, in the course of the voyage, it became necessary, for the safety of all concerned, through the perils and dangers of the seas, to make a jettison of that part of the libellant's goods which were shipped and not delivered.

The first question is, whether the claimant has shown, in support of his defensive allegation, that the jettison was occasioned by a peril of the sea. If it was, then the carrier is exonerated from the delivery of the merchandise, and has only to respond for that part of its value which is his just contributory share towards indemnity for the common loss by the jettison. A jettison, the necessity for which was occasioned solely by a peril of the sea, is a loss by a peril of the sea, and within the exception contained in the bill of lading.

But, if the unseaworthiness of the vessel, at the time of sailing on the voyage, caused, or contributed to produce, the necessity for the jettison, the loss is not within the exception of perils of the seas.

That there was such a necessity for this jettison as justified the master in making it, we think, is proved. In the case of Lawrence v. Minturn, (17 How., 109,) this court had occasion to consider the extent of the authority of the master to make a jettison. We then held, that 'if he was a competent master; if an emergency actually existed, calling for a decision whether to make a jettison of a part of the cargo; if he appears to have arrived at his decision, with due deliberation, by a fair exercise of his skill and discretion, with no unreasonable timidity, and with an honest intent to do his duty, the jettison is lawful. It will be deemed to have been necessary for the common safety, because the person to whom the law has intrusted authority to decide upon and make it, has duly exercised that authority.' We find the case at bar is within this rule. We do not detail the evidence, because the authority of the master to make the jettison has not been seriously controverted.

This part of the case turns upon the other inquiry, whether the vessel was unseaworthy for the voyage when it was begun.

It is the hull of the vessel which is alleged to have been unseaworthy. To constitute seaworthiness of the hull of a vessel in respect to cargo, the hull must be so tight, stanch, and strong, as to be competent to resist all ordinary action of the sea, and to prosecute and complete the voyage without damage to the cargo under deck.

If a vessel, during the voyage, has leaked so much as to injure the cargo, or render a jettison of it necessary, one mode of testing seaworthiness is, to ascertain what defects, occasioning leakage, were found in the vessel at the end of the voyage; and then to inquire which of those defects are attributable to perils of the seas, encountered during the voyage, and which, if any, existed when it was begun; and, if any of the latter be found, the remaining inquiry is, whether they were such as to render the vessel incompetent to resist the ordinary attacks of the sea, in the course of the particular voyage, without damage or loss of cargo.

This vessel, on her arrival at New Orleans, was taken into dock, and examined. She was found to be a new vessel, and that she had been strained. A but, about midships, at or near the third or fourth streak, was started. The hood-ends forward were also strained, and, on trial, it was found they would take about a thread of oakum.

Two worm-holes were also found in her bow, about three-eighths of an inch in diameter-one about three streaks from the keel, the other a little higher up. As the vessel was new, there seems to be no doubt these holes were in the plank when put on the vessel, but from some cause remained undiscovered.

The vessel sailed from Wilmington on the afternoon of the 21st of December, 1852. The wind being northeast and strong, the vessel came to anchor at Reedy Island, and on the 22d proceeded to sea. The master, being a part-owner and claimant, has not been examined. The first officer appears to have died before the proofs were taken in the Circuit Court. No account is given of the second officer or the crew, except one seaman, who, together with two passengers, have been examined on the part of the claimants, to prove the occurrences of the voyage. It would have been more satisfactory to have had the evidence of one or more officers of the vessel, and especially of the mate, with his log-book. Still, these three witnesses do satisfactorily show, that on the night of the 23d of December, the brig encountered a strong gale and heavy seas, causing her to labor and strain badly. This weather continued, and the sea became more heavy, up to the night of the 27th. Until about 8 o'clock that night, it was not known the vessel was leaking; but, on sounding the pumps at that time, it was found that the vessel had two feet of water in the hold. The pumps were manned and kept going, but the leak increased two feet in about two hours. The jettison was then made, and the vessel so far relieved that the pumps could control the leak, and the vessel, with the residue of the cargo, arrived at New Orleans.

It is manifest that the vessel encountered extraordinary action of the sea; and, as the vessel appears to have been new, and generally stanch and well fastened, the defects found at New Orleans, except the worm-holes, are fairly attributable to this cause. The starting of a but, and the opening of the hood-ends of a new vessel of ordinary strength, indicate a very uncommon degree of strain; and such defects would alone account for the amount of leakage of a vessel heavily laden, and exposed to such a sea as is described.

We do not think the existence of the worm-holes amount to unseaworthiness. Any leak which might have been occasioned by them in any ordinary sea, does not appear to have been such as the pumps could not control, without damage to the cargo. All vessels have leaks; and, independent of the strains received from the violent action of the sea, we are not satisfied this vessel would have leaked so much that the pumps could not have controlled the water in her hold, and prevented its doing damage to the cargo.

We find, therefore, that the vessel is exonerated from the claim for the full value of the merchandise; and the remaining question is, whether the vessel is chargeable with any part of the value of the merchandise in this cause.

When a lawful jettison of cargo is made, and the vessel and its remaining cargo are thereby relieved from the impending peril, and ultimately arrive in the port of destination, though the shipper has not a lien on the vessel for the value of his merchandise jettisoned, he has a lien for that part of its value which the vessel and its freight are bound to contribute towards his indemnity for the sacrifice which has been made for the common benefit. And this lien on the vessel is a maritime lien, operating by the maritime law as a hypothecation of the vessel, and capable of being enforced by proceedings in rem.

The right of the shipper to resort to the vessel for claims growing directly out of his contract of affreightment, has very long existed in the genera maritime law. It is found asserted in a variety of forms in the Consulado, the most ancient and important of all the old codes of sea laws, (see chaps. 63, 106, 227, 254, 259;) and the maxim that the ship is bound to the merchandise, and the merchandise to the ship, for the performance of the obligations created by the contract of affreightment, is a settled rule of our maritime law. (The Schooner Freeman, 18 How., 182; The Ship Packet, 3 Mason, 261; The Volunteer, 1 Sum., 550; The Reeside, 2 Sum., 467; The Rebecca, Ware's R., 188; The Phoebe, Ib., 263; The Waldo, Davies's R., 161; The Gold Hunter, 1 Blatch. and How., 305.)

Pothier declares (Treatise of Charter-parties, preliminary chapter on Average) that the right to contribution in general average is dependent on the contract of affreightment, which embraces in effect an undertaking, that if the goods of the shipper are damaged for the common benefit, he shall receive a due indemnity by contribution from the owners of the ship, and of other merchandise benefited by the sacrifice.

The power and duty of the master to retain and cause a judicial sale of the merchandise saved, has also been long established. (Consulado del Mare, ch. 51, 52, 53, and note 1 in vol. 3, p. 103 of Pardessus's Collection; Laws of Oleron, art. 9; Ord. de la Marine, Liv. 3, tit. 8, sec. 21, 25; Nesbit on Ins., 135; Strong v. New York Firemen's Insurance Company, 11 John. R., 323; Simonds v. White, 2 B. and C., 805; Loring v. The Neptune Insurance Company, 20 Pick., 411; 3 Kent. Com., 243, 244.) And this right to enforce a judicial sale, through what we term a lien in rem, is not confined to the merchandise, but extends to the vessel.

Emerigon, (ch. 12, sec. 43,) speaking generally of an action of contribution, says it is in its nature a real action. Cassaregis, (dis. 45, N. 34,) 'est in rem scripta.'

It would be extraordinary if the right to a lien were not reciprocal; if it existed in favor of the vessel, when sacrifice was made of part or the whole of its value, for preservation of the cargo, and not against the vessel, when sacrifice was made of the cargo for preservation of the vessel.

By the ancient admiralty law, the master could bind both the ship and cargo by an express hypothecation, to obtain a ransom on capture. So he could, and still may, when the whole enterprise has fallen into distress, which could not otherwise be relieved, hypothecate both the vessel and cargo to obtain means of relief. These are cases of express hypothecation made by the master, under the authority conferred on him by the maritime law; but he can also sell a part of the cargo to enable him to prosecute his voyage, or deliver a part of it in payment of ransom of his vessel, and the residue of the cargo, on capture; and when he does so, the law of the sea creates a lien on the vessel, as security for the reimbursement of the loss of the shipper whose goods have been sacrificed. (The Packet, 3 Mason, 255; Pope v. Nickerson, 3 Story's R., 492; The Gold Hunter, 1 Blatch. and How., 300; The Boston, Ib., 309; Consol. del Mare, ch. 105; Laws of Oleron, art. 25; Ord. of Antwerp, art. 19; Emerigon Con. a la Grosse, ch. 4, secs. 9, 11.)

The authority to make a jettison of cargo is derived from the same source; an instant necessity, incapable of being provided for save by a sacrifice of part of what is committed to the master's care, and the presumed consent of the owners of all the subjects at risk, that the loss shall become a charge upon what is benefited by the sacrifice. (The Gratitudine, 3 Rob., 210.) If the sacrifice be made to enable the vessel to perform the voyage, by paying what the owners are bound to pay to complete it, the charge is on the vessel and its owners. If it be made to relieve the adventure from a peril which has fallen on all the subjects engaged in it, the risk of which peril was not assumed by the carrier, the charge is to be borne proportionably by all the interests, and there is a lien on each to the extent of its just contributory obligation. This authority of the master to make the sacrifice, and this consent of the owners of the subjects at risk to have it made, and their implied undertaking to contribute towards the loss, are viewed by the admiralty law as sufficient to create an hypothecation of the subjects benefited, for the security of the payment of the several sums for which those subjects are respectively liable. In other words, as the master is authorized to relieve the adventurer from distress, by means of an express hypothecation, in case of capture or distress in port, or by means of a sale of part of the cargo, thereby creating a maritime lien on the property ultimately benefited, in favor of the owner of what is sold or hypothecated; so he may also, in a case of necessity at sea, make a jettison of cargo, and thereby create a lien on the property thus saved from peril. Pothier (Con. Mar., n., 34, 72) and Emerigon (Con. a la Grosse, ch. 4, sec. 9) say that the sale of part of the cargo in port, to supply the necessities of the ship, is a kind of forced loan. Though the sacrifice of part of the cargo at sea cannot be considered a loan, it is a forced appropriation of it to the general benefit of those engaged in a common adventure, under a contract of affreightment; and such use of the property of one, for the benefit of others, creates a charge on what was thus saved, for what may fairly be termed the price of that safety. (Abbott on Shipping, part 4, ch. 10, s. 6.) In United States v. Wilder, (3 Sumner, 311,) which was a case of general average, Mr. Justice Story likens it to a case of salvage, where safety is obtained by sacrifices of labor and danger, made for the common benefit; and he says the general maritime law gives a lien in rem for the contribution, not as the only remedy, but as in many cases the best remedy, and in some cases the only remedy. In the District and Circuit Courts of the United States, this jurisdiction has been exercised, and some cases of this kind are found in the books, though most of their decisions are not in print. (The Mary, 5 Law Reporter, 75; 6 Ib., 73; The Cargo of the George, 8 Law Reporter, 361; Sparks v. Kittredge, 9 Law Reporter, 349; Dunlap's Ad. Pr., 57; 2 Browne's Civ. and Ad. Law, 122; The Packet; The Gold Hunter; The Boston, above cited.) The restricted admiralty jurisdiction in England seems insufficient to enforce this lien. (The Constantia, 2 W. Rob., 487.)

Nor is there anything in the case of Rae v. Cutler, decided by this court in 1849, and reported in 7 How., 729, which conflicts with the view we have now taken.

That was a libel by the owner of a vessel against the consignee of cargo, to recover the contributory share of the average due from the goods which the master had voluntarily delivered to the respondent before the libel was filed. The court decided, that though the master, as the agent of the owner of the vessel in that case, had by the maritime law a lien upon the goods, as security for the payment of their just contribution, this lien was lost by their voluntary delivery to the consignee; and that the implied promise to contribute could not be enforced by an action in personam against the consignee, in the admiralty. This admits the existence of a lien, arising out of the admiralty law, but puts it on the same footing as a maritime lien on cargo for the price of its transportation; which, as is well known, is waived by an authorized delivery without insisting on payment.

On full consideration, we are of opinion that when cargo is lawfully jettisoned, its owner has, by the maritime law, a lien on the vessel for its contributary share of the general average compensation; and that the owner of the cargo may enforce payment thereof by a proper proceeding in rem against the vessel, and against the residue of the cargo, if it has not been delivered.

The remaining question is, whether the pleadings in this case are in such form as to present this claim for the consideration of this court, and entitle the libellant to assert a lien on the vessel for its contribution.

The rules of pleading in the admiralty are exceedingly simple and free from technical requirements. It is incumbent on the libellant to propound with distinctness the substantive facts on which he relies; to pray, either specially or generally, for the relief appropriate to them; and to ask for such process of the court as is suited to the action, whether in rem or in personam.

It is incumbent on the respondent to answer distinctly each substantive fact alleged in the libel, either admitting or denying, or declaring his ignorance thereof, and to allege such other facts as he relies upon as a defence, either in part or in whole, to the case made by the libel.

The proofs of each party must correspond substantially with his allegations, so as to prevent surprise. But there are no technical rules of variance, or departure in pleading, like those in the common law, nor is the court precluded from granting the relief appropriate to the case appearing on the record, and prayed for by the libel, because that entire case is not distinctly stated in the libel. Thus, in cases of collision, it frequently occurs that the libel alleges fault of the claimant's vessel; the answer denies it, and alleges fault of the libellant's vessel. The court finds, on the proofs, that both were in fault, and apportions the damages.

Looking to this libel, we find it states that a contract of affreightment was made to transport these goods from Wilmington to New Orleans, on board this brig; that the goods were laden on board, and the brig had arrived, but only a part of the goods have been delivered. It states the value of the part not delivered, avers that the libellants have not been paid any part of that sum, prays for process against the brig, and a decree for the value of the merchandise not delivered, and also for such other relief as to law and justice may appertain.

The answer admits all the facts stated in the libel, but sets up, by way of defensive allegation, a necessary jettison of that part of the cargo not delivered. It is manifest, that though this answers, in part, the claim for damages made by the libel, it does not wholly answer it. It shows sufficient cause why the libellant should not assert a lien on the brig for the whole value of his merchandise, but at the same time shows that the libellant has a valid lien on the brig for that part of the value of the merchandise which the vessel is bound to contribute. While it asserts that the performance of the contract of affreightment by transportation of the merchandise to New Orleans was excused by a peril of the sea, it admits that an obligation arose out of the relations of the parties created by that contract of affreightment, and out of the facts relied on as an excuse for not transporting the merchandise; that this obligation was to pay to the shipper a part of the value of his goods; that it was the duty of the master, at the port of New Orleans, to ascertain what part of that value the vessel was bound to contribute, and that there is a lien on the vessel to secure its payment.

If the technical rules of common-law pleading existed in the admiralty, there might be difficulty in admitting a claim for general average, in an action founded on a contract of affreightment; because, though the claim for such average grows out of the contract of affreightment, the implied promise to pay it is technically different from the promise on the face of a bill of lading. In the case of Pope v. Nickerson, (3 Story, 465,) Mr. Justice Story went into a very extensive examination of such claims, under an agreed statement of facts, in an action of assumpsit on bills of lading; and it does not seem to have occurred, either to him or the counsel, that it was inconsistent with any substantial rule of the common law so to do.

But in the admiralty, as we have said, there are no technical rules of variance or departure. The court decrees upon the whole matter before it, taking care to prevent surprise, by not allowing either party to offer proof touching any substantive fact not alleged or denied by him.

But where, as in this case, the defensive allegation of the respondent makes a complete case for the libellant, so that no evidence in support of it is required, and where that case is within the form of action and the prayer of relief, and the process used by the libellant, we think it not a sufficient reason for refusing relief, that the precise case on which the court think fit to grant it is not set out in the libel.

We understand, that in the court below the libellants relied on the duty of the master to adjust and collect, and pay to them, the general average contributions, as precluding the defence of a necessary jettison. We think this defence was properly overruled. The libellants did not there insist on their lien on the vessel for its contribution. We do not consider their failure to do so precludes them from calling on this court to make that decree, to which the record shows they are entitled. In Finlay v. Lynn, (6 Cranch, 238,) this court was of opinion that the appellant, whose bill was dismissed by the Circuit Court, was entitled to an account, on a ground not assumed in the Circuit Court. This court said: 'The plaintiff probably did not apply for this account in the court below, and it does not appear to have been a principal object of his bill. This court therefore doubted whether it would be most proper to affirm the decree dismissing the bill, with the addition that it should be without prejudice to any future claim for profits, and for the debt due from one store to the other, or to open the decree and direct the account. The latter is deemed the more equitable course. The decree, therefore, is to be reversed, and the cause remanded, with directions to take an account of the profits of the jewelry store, if the same shall be demanded by the plaintiff.' But, as the libellants failed to call the attention of the Circuit Court to this view of their rights, and placed their claim there solely on the grounds that the jettison was unlawful, or, if lawful, could not be a defence, because the master had failed to do the duty incumbent on him in a case of general average, we think the decree should be reversed, without costs. The cause must be remanded to the Circuit Court, with directions to ascertain the amount of the lien of the libellants on the Ann Elizabeth, for the share to be contributed by the vessel towards the loss sustained by the libellants, and to enter a decree accordingly.

Mr. Justice CATRON and Mr. Justice CAMPBELL dissented.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the eastern district of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed, by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, without costs, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to ascertain the amount of the lien of the libellants on the Ann Elizabeth, for the share to be contributed by the vessel towards the loss sustained by the libellants, and to enter a decree accordingly.

title: Dupont v. Vance/Opinion of the Court


text: Talk:Dupont v. Vance/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Steamer Virginia v. West

THIS was an appeal from the Circuit Court of the United States for the district of Maryland.

Mr. Johnson moved to dismiss the appeal, upon the ground that the record was not filed in time.

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

title: Steamer Virginia v. West


text: Talk:Steamer Virginia v. West

title: Talk:Steamer Virginia v. West


text:
Steamer Virginia v. West/Opinion of the Court

This is an appeal from the Circuit Court for the district of Maryland.

The decree from which the appeal has been taken was passed by the Circuit Court on the 17th day of November, 1855 and the appeal was prayed on the same day in open court. But it was not prosecuted to the next succeeding term of this court, and no transcript of the record was filed here during that term. But a transcript has been filed at the present term of this court, and the case docketed. And a motion is made to dismiss it, upon the ground that the appeal is not legally before this court, according to the act of Congress regulating appeals.

The construction of this act of Congress, and the practice of this court under it, has been settled by the cases of Villalobos v. The United States, (6 Howard, 81,) and The United States v. Curry, (6 Howard, 106.) The transcript must be filed in this court and the case docketed at the term next succeeding the appeal, in order to give this court jurisdiction. This case must therefore be dismissed.

But the dismissal does not bar the appellant from taking and prosecuting another appeal at any time within five years from the date of the decree, provided the transcript is filed here and the case docketed at the term next succeeding the date of such second appeal.


text: Talk:Steamer Virginia v. West/Opinion of the Court


text: Brown v. Duchesne

title: Brown v. Duchesne


text: Talk:Brown v. Duchesne

title: Talk:Brown v. Duchesne


text:
Brown v. Duchesne/Opinion of the Court

THIS case came up, by writ of error, from the Circuit Court of the United States for the district of Massachusetts.

The facts in the case and state of the pleadings in the Circuit Court are set forth so particularly, in the opinion of the court, that they need not be repeated.

It was submitted on a printed argument by Mr. Dana for the plaintiff in error, and argued by Mr. Austin for the defendant.

As the points raised in the case are entirely new, it is thought expedient to present them to the reader as they were brought before the court by the respective counsel.

Mr. Dana, for the plaintiff in error, after stating the circumstances of the case, said that the question for the court to decide was:

Whether, under these circumstances, there is an exemption from the operation of our patent laws, by reason of the nationality of the vessel.

Since this cause was argued in the Circuit Court, my attention has been called to the case of Caldwell v. Van Vlissengen, 9 Hare, 415, (9 Eng. L. and Eq. Rep., p. 51.)

In that case, the machine patented was a screw propeller. This was a substantial part of the vessel, and almost necessary to her use. The vessel was built and solely owned in Holland, where the invention was in free and common use. The affidavits set forth facts sufficient to establish an exemption, if national character can give one. The court fully considers the question, and decides against the exemption. (On pp. 58, 59, the court puts the right to an injunction upon the ground that actions at law are maintainable in these cases.) The court considers that the question of the exemption of foreign vessels, either entirely, or in cases of reciprocity, is one of national policy, and to be dealt with by the Legislature, rather than by the courts.

After reading this decision, I wrote to Sir William Page Wood, the counsel for the respondents, then Solicitor General, and now Vice Chancellor, and received from him the following reply:

31 GREAT GEORGE ST., WESTMINSTER,

November 6, 1855.

MY DEAR SIR: Your letter reached me yesterday. The case you refer me (Caldwell v. Van Vlissengen) was not appealed. I thought the decision was right, though it was against me. At the same time, I saw that there were inconveniences in the application of the law; and in the session of 1852, when a bill was passing through the House of Commons, with reference to the amendment of the Patent Laws, I proposed the insertion of the following clause. [Here follows section 26, of the act of 15 and 16 Victoria, ch. 83.]

The opinion of Sir William Page Wood is entitled to great weight before every judicial tribunal, as is well known to your honors.

After this decision, the act 15 and 16 Victoria, ch. 83, was passed; section 26 of which is as follows: (4 Chitty's Statutes, 217.) 'No letters patent for any invention (granted after the passing of this act) shall extend to prevent the use of such invention in any foreign ship or vessel, or for the navigation of any foreign ship or vessel, which may be in any port of her Majesty's dominions, or in any of the waters within the jurisdiction of any of her Majesty's courts, where such invention is not used for the manufacture of any goods or commodities to be vended within or exported from her Majesty's dominions. Provided, always, that this enactment shall not extend to the ships or vessels of any foreign State, of which the laws authorize subjects of such foreign State, having patents or like privileges for the exclusive use or exercise of inventions within its territories, to prevent or interfere with the use of such inventions in British ships or vessels, while in the ports of such foreign State, or in the waters within the jurisdiction of its courts, where such inventions are not so used for the manufacture of goods or commodities, to be vended within or exported from the territories of such foreign State.'

Such is the state of the law in Great Britain, the greatest commercial nation of Europe. There is no reason to believe that the law of any other nation of Europe varies from that of England. Indeed, it is probable that other nations will to likewise, and keep in their own hands the power of granting or withholding such an exemption, on considerations of policy, by legislation or treaty.

It is therefore respectfully suggested that the court should leave this question to the law-making and treaty-making departments of our Government, in the mean time placing the law in this country upon the same basis upon which it rests in England.

Is there any controlling reason why the court should not do this?

It is conceded that the statute, in its terms, suggests no exemption. No interpretation of the statute would suggest an exemption. If one is established, it must be by some imposed construction, paramount over the plain language of the acts. This is found solely in certain supposed principles of international law. No decision in point, in this country, has been cited, and the English cases referred to are inapplicable, as shown in Caldwell v. Van Vlissengen, cited.

The defendant's vessel, being private property, and here voluntarily, for purposes of trade, has no exemption from general national jurisdiction. (Phillimore's Int. Law, 367, 373; The Exchange, 7 Cranch, 144; Story's Conflict of Laws, sec. 383.)

International law respects absolute rights, the violation of which is cause of war, and comity, or rights of imperfect obligation, the contravention of which is not presumed, but which each nation is competent to contravene if it chooses. (This distinction is well stated in Mr. Webster's letter to Lord Ashburton, in the appendix to Wheaton's Law of Nations.)

It will not be claimed that the prohibition of the use of such an article as this, in a private vessel, under these circumstances, is a violation of any absolute right secured by the law of nations. The Government has the right to prohibit commerce altogether, or with particular nations, as by embargo or nonintercourse laws. (1 Kent's Com., sec. 33 n; Vattel, Book 2, Ch. 7, sec. 94; Ch. 8, sec. 100; Ch. 2, secs. 25, 33-Book 1, Ch. 8, sec. 90.)

As a nation may prohibit trade, so it may lay conditions and restrictions. Authorities cited supra. (Vattel, Book 2, Ch. 8, sec. 100.)

The question is really under the comitas gentium. Between countries trading freely, is there a presumption from the law of comity that no nation will prohibit or restrict the use of such an invention, under such circumstances, so well settled as to authorize a court to establish the exception against the language of the statute?

This can hardly be contended, since the case of Caldwell v. Van Vlissengen, and the act 15 and 16 Victoria.

This is not a question of property, or of the domicil or situs of property. The defendant may have his vessel full of these articles, if he chooses. We admit the property in the article to be in him, and that it is part of the national wealth of France, and has its situs in France, for purposes of taxation, and for all national purposes. (Hays v. Pacific Co., 17 How., 596.) The question is upon a restriction of its use within our dominions.

As the use of the machine is not alleged to be necessary, and the presence of the vessel here is voluntary, if the comity of nations does not allow the prohibition in this case, it would forbid it in all cases of patents; and vessels nominally owned in the British Provinces, and in the West India Islands, may use all our nautical patents.

To what burdens is the foreigner and his personal property subject?

Not to taxes for the support of the Government. (In re Bruce, 2 Cr. and J., 437; Vattel, Book 2, Ch. 8, sec. 106.)

Nor to duties that relate to the quality of a citizen, as militia or jury duties. But they are subject to all burdens, taxes, and duties, relating to the police and economical regulations of a State. (Vattel, B. 2, Ch. 8, sec. 106.)

They are subject to imposts and duties levied for the purpose of encouraging the manufactures or other industry of a country, and are liable to prohibitions and restrictions made for the same purpose. Such are most navigation laws, and a large part of the revenue laws of a country. (Vattel, B. 2, Ch. 8, sec. 106; 1 Kent's Com., 35.)

Their exemption seems to be based upon the principle that they shall not be required to do anything inconsistent with their home allegiance, or anything which supposes an allegiance or fealty to the State in which they merely sojourn.

The patent and copyright laws of a country stand upon the same ground with navigation laws, and laws prohibiting altogether or restricting certain kinds of trade, for economical purposes, or to add to the military resources and strength, or to increase the effective power and industry of a country, or to develop its genius. As to these, each nation is the proper judge of its own policy. (Vattel, B. 2, Ch. 2, secs. 25, 33.)

Indeed, Vattel (B. 1, Ch. 20, sec. 255) seems to define the police regulations of a country so as to include patent laws.

The object of the patent laws is to develop the genius and industry of the country, as well for war as for peace. And whether the law in this case be looked upon as a prohibition of the use, or as a duty, burden, or tax, on the use, it is equally within the recognised jurisdiction of the sovereign, under the comity of nations.

Under the British copyright laws, a foreigner cannot introduce into England, even for his private use, a book printed in his own country, if it is subject to copyright in England; and the introduction entails a forfeiture, instead of a tax to be paid to the author. (Act 5 and 6 Victoria, Ch. 45.)

In this state of the international law, in the absence of all direct decisions in support of the defendant's position, and since the passage of 15 and 16 Victoria, and the decision in Caldwell v. Van Vlissengen, it is respectfully suggested that the question of exemption of foreigners (in cases not of necessity or charity) should be treated as a political rather than a legal question, and the British precedent be followed by the court, until Congress or the treaty-making power shall act upon it.

Mr. Austin, for defendant in error, made the following points:

I. Foreign vessels entering a port of the United States, by the express or implied permission of the Government, do so under an implied immunity and reservation of the right belonging to them by the laws of the country to which they belong, with an implied understanding that the persons on board shall not violate the peace or domestic laws of the country. (Vattel's Law of Nations, B. 2, Ch. 8, sec. 101.)

The Alcyon, coming from the island of Miquelon, may be deemed to have entered a port of the United States by express permission. (5 United States Statutes at Large, 748, Ch. 66, which specially mentions this island.)The plaintiff says that the terms of the patent law are broad enough to render the use of the aforesaid contrivance or gaff-saddle on board of the Alcyon, while in the harbor of Boston, a violation of his right.

The question is, whether the patent law can be properly so construed as to include a use of said gaff-saddle, notwithstanding the circumstances under which the said gaff-saddle was incorporated into the structure of the Alcyon, and notwithstanding the express or implied permission of the United States, by force of which she entered a port of the United States.

II. What shall or does constitute a vessel must be determined exclusively by the law of the country to which the vessel belongs, i. e., by the law of the owner's domicil.

This follows necessarily from general maxims of international jurisprudence. (Story on on Con. of Laws, secs. 18, 20.)

In order to ascertain what is or is not real property, we must resort to the lex loci rei, (Id., sec. 382, 447;) so as to what is or what is not a corporation. (Bank of Augusta v. Earle, 13 Pet., 519.)

The Alcyon, although in a port of the United States, was still within the jurisdiction of France.

Children born on board of her while in Boston harbor would have been French subjects. (Vattel L. of N., B. 1, Ch. 19, sec. 216.)

The extent to which this principle is applied is shown in the case of In re Bruce, (2 Cr. and J., 437,) and Thompson v. The Advocate, General, (12 Clark and F., 1.) See also United States v. Wiltberger, (5 Wh., 76.)

The gaff-saddle was as much an integral part of the Alcyon as her rudder, or her keel, or her gaff. Whether a more or less necessary part, does not alter the fact that it was rightfully a part of the vessel by French law. Therefore, if the United States patent law operated to prevent the defendant from using the gaff-saddle while in the harbor of Boston, notwithstanding it was a part of his vessel, without plaintiff's permission, it operated just so far to impose a restriction on the implied permission accorded by the United States to all French vessels to enter the ports of the United States, and upon the express permission accorded to all French vessels from Miquelon.

The statutes of the United States relating to patents were not intended to affect, and do not affect, foreign vessels coming into the ports of the United States.

1st. The statutes of a country relating to patents are not such laws as a foreigner, visiting this country temporarily, and not to become a resident, is bound to obey, so far as those laws relate merely to the use of articles purchased abroad, and brought into the country solely for the personal use of the party in possession while a transient visiter. (Vattel L. of N., B. 2, Ch. 8, secs. 101, 106, 109; Boullenois Trait e des Statuts, pp. 2, 3, 4; Universities of Oxford and Cambridge v. Richardson, 6 Vesey, Jr., 689, which entirely supports this position.)

2d. The United States, in granting letters patent, or any other exclusive privilege to a citizen, necessarily always reserve by implication their own rights of sovereignty, which are not to be affected by any individual or private privilege.

Examples of the application of this principle are as follows:

1. In regard to the right of eminent domain.

This exists inherently in every Government. (Vattel's L. of N., B. 1, Ch. 20, sec. 244; Bonaparte v. The Camden and Amboy Railroad, 1 Bald., 220.)

It is recognised in the Constitution of the United States. (Amdt. V.)

Therefore, if the Government by a land patent convey today a portion of its public lands to an individual, it could tomorrow, by virtue of the implied reservation of its right of eminent domain, resume the land from its own grantee, and against his consent, by paying to him an indemnity.

Independently of the principle that the right of eminent domain, being an attribute of sovereignty, could not be conveyed away, the conclusion above stated follows from the rule that in public grants nothing passes by implication. (United States v. Arredondo, 6 Pet., 738; Jackson v. Lamphire, 3 Pet., 289.)

2. The constitutional power of Congress over commerce.

This power extends to navigation, (2 Story's Com. on Con., sec. 1,060,) and to every species of commercial intercourse. (Id., 1,061.)

In the exercise of this power, Congress in 1845, after the date of the plaintiff's patent, passed the law relating to French vessels coming from Miquelon, (ubi supra,) which law makes no exception as to the kind of vessel, or the mode of its rig, or the peculiarities of its structure.

Either, therefore, the power of Congress to pass an act thus broad in its terms was limited by the grant to the plaintiff of an exclusive right to use the contrivance in question, or the exclusive right was limited in its extent by the implied reservation of power to pass such an act. As the grant to the plaintiff, and the act of 1845, are in direct opposition, the grant must be construed against grantee. (Mills v. St. Clair County, 8 How., 569.)

The defendant does not contend that he would have a right to bring into a port of the United States a cargo or any number of these contrivances for sale; nor even that he had a right to detach and sell that on board of the Alcyon. In this argument the gaff-saddle is deemed a part of the schooner, in the same way as fixtures are parts of the reality.

3. The power of Congress to alienate a portion of its territory.

This power exists in every Government, (Vattel's L. of N., B. I., Ch. 21, sec. 263.) It was exercised in the Treaty of Washington, 1842, (8 U.S. Stat. at Large, 572.)

Every patent right then existing extended over the whole country as then bounded. The alienation of a portion of the territory diminished the value, by diminishing the extent of every existing patent right; but they were all granted, subject to the implied reservation of power on the part of the Government thus to diminish their value.

The right, therefore, of the plaintiff, to an exclusive use of his patented contrivance within the jurisdiction of the United States, was limited by the paramount right of the sovereignty of the United States to admit all vessels into the ports of the United States, which right they have exercised in regard to French vessels, by implication, by treaty, and by statute. The same reasoning which would separate the gaff-saddle from the schooner might be allowed to separate her into as many parts as there should happen to be articles on board of her incorporated into her structure, the like of which were patented in this country.

3. The private right of every patentee is subject to the public right of the Government, to admit into the ports of the United States any foreign vessel, free from any private or public charges, tolls, or burdens, other than those imposed by treaty or by the laws of nations. (The Attorney General v. Burridge, 10 Price, 350; Same v. Parmeter, Id., 378; The same v. The Attorney General, Id., 412.)

The cases cited are exactly analogous in principle to the case at bar.

In the citations, the jus privatum was a grant by Charles I of his property in land between high and low water mark; and the jus publicum with which it interfered was the right of the public freely to pass and repass upon the salt water between high and low water mark.

In the present case, the jus privatum is the exclusive right granted to the plaintiff to use within the jurisdiction of the United States a certain machine, and the jus publicum with which it interferes is the right the public has to the free admission into the ports of the United States of all foreign vessels, being such according to the law of the country where they belong.

The grant by Charles I of land between high and low water mark was held void, so far as it prevented this free passage. By parity of reasoning, the letters patent of the plaintiff must be held void, or rather as never having extended to foreign vessels visiting the ports of the United States, as the Alcyon visited Boston.

The principle here contended for, as it applies to ports and harbors, is clearly stated by Lord Hale, in his treatise De Jure Maris, cap. 6, p. 35, and in the treatise De Portibus Maris, chapter on the jus publicum, pp. 84, 89: 'When a port is fixed and settled,' 'though the soil and franchise and dominion therof prima facie be in the King, or by derivation from him in a subject, yet that jus privatum is clothed and superinduced with a jus publicum.' So in the case at bar, the jus privatum of the patentee is subject to the jus publicum by which foreign vessels, however constructed, may enter our ports. This Government, never having undertaken to decide, nor ever having granted to an individual the right to decide for the Government, that certain vessels, or vessels constructed partly or wholly in a certain way, shall not enter our ports without paying a toll, or charge, or duty, not imposed by treaty or special laws relating thereto.

4. The statutes relating to patents cannot properly be so construed as to include machines or contrivances forming a part of the original structure of foreign vessels entering the ports of the United States, as the Alcyon entered Boston harbor.

(1.) Because such construction, for the reasons above stated, would introduce public mischiefs and manifest incongruities. (Sawin v. Guild, 1 Gall., 485; Talbot v. Seaman, 1 Cr., 1; Murray v. The Charming Betsey, 2 Id., 64.)

(2.) These statutes were passed alio intuitu. (See the reasoning of Judge Curtis, in the opinion delivered by him in this case, printed from the original MS. in 4 Am. Law Register, 152. Also, Lessee of Brewer v. Blougher, 14 Pet., 178: 'The laws will restrain the operation of a statute within narrower limits than its words import, if the literal meaning of its language would extend to cases which the Legislature never designed to embrace in it'-198.) It cannot be supposed that Congress intended the statutes on patents to confer a right on a patentee to interfere in any way with the exercise of a license conferred by Government on a foreign vessel. (Same doctrine in Mercer v. Mechanics' Bank of Alexandria, 1 Pet., 64.)

IV. Letters patent of the United States confer upon the grantee the exclusive right to the subject-matter of the patent, to be exercised within their jurisdiction. A foreign ship coming within one of the ports of the United States, with their express or implied permission, is without the jurisdiction within which this exclusive right is to be exercised.

1. Foreigners within the territorial jurisdiction of a country may yet be within its municipal jurisdiction for no purpose whatever. Such is the status of public ministers (Wheaton's Elements of the L. of N., Part III, c. 1, s. 14; Id., Part II, c. 2, s. 9)-and of foreign sovereigns entering the territory of another-(id. id. id.)-and of foreign armies marching, &c., through the territory-(id. id. id.)-and of a foreign ship of war-(id. id. id.)-and Schooner Exchange v. McFadden, 7 Cr. 135, 147.)

2. Foreigners within the territorial may be within the municipal jurisdiction of a country for all purposes. This is the status of foreigners who come into the country animo manendi, becoming inhabitants. (Vattel's L. of N., B. I, c. 19, s. 213.)

3. Foreigners within the territorial may be within the municipal jurisdiction for some purposes, and not for others. This is the case with transient persons (Vattel's L. of N., B. II, c. 8, ss. 105-'6-'8-'9) and consuls; (Wheaton's Elements, P. III, c. 1, s. 23.) The same principle applies to a part of the country in temporary possession of an enemy. (U.S. v. Hayward, 2 Gall., 485.) To goods imported, and not entered, although within the territorial jurisdiction of the State, they are not subject to its municipal jurisdiction. (Harris v. Dennie, 3 Pet., 292.)

This principle applies to a foreign commercial vessel visiting a port of the United States. It is within the jurisdiction of the United States, so far that persons on board are bound to do no act against the public peace, or contra bonos mores, or against the revenue laws, &c., &c. But 'for all the personal relations and responsibilities existing in a ship at the time she entered a port, and established or permitted by the laws of her own country, her authorities are answerable only at home; and to interfere with them in discharge of the duties imposed upon them, or the exercise of the powers vested in them by those laws, on the ground of their being inconsistent with the municipal legislation of the country where the ship happens to be lying, is to assert for that legislation a superiority not acknowledged by the law, and inconsistent with the independence of nations.' (Mr. Legare's Opinion, 4 Op. of Att. Gen., 98, 102; Same point, 6 Webster's Works, 303.)

V. The case of Caldwell v. Van Vlissengen, (9 Hare, 415, reprinted in 9 Eng. Law and Equity R., 51,) will be cited by plaintiff in error, as deciding the point before the court. On this case, the defendants say:1. It will be regarded by this court only so far as the reasoning commends itself to the court as sound.

2. The case was not placed upon the grounds assumed in the case at bar. The principles here contended for were neither considered nor even presented to the court.

3. Statute 15 and 16 Victoria, c. 83, s. 26, passed July 1, 1852, provides that letters patent thereafter granted shall not prevent the use of inventions in foreign ships resorting to British ports when not used for the manufacture of goods to be vended in or exported from England, excepting from the act, ships of foreign States in the ports of which British ships are prevented from using foreign inventions when not employed for the manufacture of goods to be vended in or exported from such foreign States.

This statute was passed in evident recognition of the existence and propriety of the principles of international law contended for by the defendant in error.

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

This case comes before the court upon a writ of error to the Circuit Court of the United States for the district of Massachusetts.

The plaintiff in error, who was also plaintiff in the court below, brought this action against the defendant for the infringement of a patent which the plaintiff had obtained for a new and useful improvement in constructing the gaff of sailing vessels. The declaration is in the usual form, and alleges that the defendant used this improvement at Boston without his consent. The defendant pleaded that the improvement in question was used by him only in the gaffs of a French schooner, called the Alcyon, of which schooner he was master; that he (the defendant) was a subject of the Empire of France; that the vessel was built in France, and owned and manned by French subjects; and, at the time of the alleged infringement, was upon a lawful voyage, under the flag of France, from St. Peters, in the island of Miquelon, one of the colonies of France, to Boston, and thence back to St. Peters, which voyage was not ended at the date of the alleged infringement; and that the gaffs he used were placed on the schooner at or near the time she was launched by the builder in order to fit her for sea.

There is also a second plea containing the same allegations, with the additional averment that the improvement in question had been in common use in French merchant vessels for more than twenty years before the Alcyon was built, and was the common and well-known property of every French subject long before the plaintiff obtained his patent.

The plaintiff demurred generally to each of these pleas, and the defendant joined in demurrer; and the judgment of the Circuit Court being in favor of the defendant, the plaintiff thereupon brought this writ of error.

The plaintiff, by his demurrer, admits that the Alcyon was a foreign vessel, lawfully in a port of the United States for the purposes of commerce, and that the improvement in question was placed on her in a foreign port to fit her for sea, and was authorized by the laws of the country to which she belonged. The question, therefore, presented by the first plea is simply this: whether any improvement in the construction or equipment of a foreign vessel, for which a patent has been obtained in the United States, can be used by such vessel within the jurisdiction of the United States, while she is temporarily there for the purposes of commerce, without the consent of the patentee?

This question depends on the construction of the patent laws. For undoubtedly every person who is found within the limits of a Government, whether for temporary purposes or as a resident, is bound by its laws. The doctrine upon this subject is correctly stated by Mr. Justice Story, in his 'Commentaries on the Conflict of Laws,' (chap. 14, sec. 541,) and the writers on public law to whom he refers. A difficulty may sometimes arise, in determining whether a particular law applies to the citizen of a foreign country, and intended to subject him to its provisions. But if the law applies to him, and embraces his case, it is unquestionably binding upon him when he is within the jurisdiction of the United States.

The general words used in the clause of the patent laws granting the exclusive right to the patentee to use the improvement, taken by themselves, and literally construed, without regard to the object in view, would seem to sanction the claim of the plaintiff. But this mode of expounding a statute has never been adopted by any enlightened tribunal-because it is evident that in many cases it would defeat the object which the Legislature intended to accomplish. And it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute (or statutes on the same subject) and the objects and policy of the law, as indicated by its various provisions, and give to it such a construction as will carry into execution the will of the Legislature, as thus ascertained, according to its true intent and meaning.

Neither will the court, in expounding a statute, give to it a construction which would in any degree disarm the Government of a power which has been confided to it to be used for the general good-or which would enable individuals to embarrass it, in the discharge of the high duties it owes to the community-unless plain and express words indicated that such was the intention of the Legislature.

The patent laws are authorized by that article in the Constitution which provides that Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. The power thus granted is domestic in its character, and necessarily confined within the limits of the United States. It confers no power on Congress to regulate commerce, or the vehicles of commerce, which belong to a foreign nation, and occasionally visit our ports in their commercial pursuits. That power and the treaty-making power of the General Government are separate and distinct powers from the one of which we are now speaking, and are granted by separate and different clauses, and are in no degree connected with it. And when Congress are legislating to protect authors and inventors, their attention is necessarily attracted to the authority under which they are acting, and it ought not lightly to be presumed that they intended to go beyond it, and exercise another and distinct power, conferred on them for a different purpose.

Nor is there anything in the patent laws that should lead to a different conclusion. They are all manifestly intended to carry into execution this particular power. They secure to the inventor a just remuneration from those who derive a profit or advantage, within the United States, from his genius and mental labors.

But the right of property which a patentee has in his invention, and his right to its exclusive use, is derived altogether from these statutory provisions; and this court have always held that an inventor has no right of property in his invention, upon which he can maintain a suit, unless he obtains a patent for it, according to the acts of Congress; and that his rights are to be regulated and measured by these laws, and cannot go beyond them.

But these acts of Congress do not, and were not intended to, operate beyond the limits of the United States; and as the patentee's right of property and exclusive use is derived from them, they cannot extend beyond the limits to which the law itself is confined. And the use of it outside of the jurisdiction of the United States is not an infringement of his rights, and he has no claim to any compensation for the profit or advan tage the party may derive from it.

The chief and almost only advantage which the defendant derived from the use of this improvement was on the high seas, and in other places out of the jurisdiction of the United States. The plea avers that it was placed on her to fit her for sea. If it had been manufactured on her deck while she was lying in the port of Boston, or if the captain had sold it there, he would undoubtedly have trespassed upon the rights of the plaintiff, and would have been justly answerable for the profit and advantage he thereby obtained. For, by coming in competition with the plaintiff, where the plaintiff was entitled to the exclusive use, he thereby diminished the value of his property. Justice, therefore, as well as the act of Congress, would require that he should compensate the patentee for the injury he sustained, and the benefit and advantage which he (the defendant) derived from the invention.

But, so far as the mere use is concerned, the vessel could hardly be said to use it while she was at anchor in the port, or lay at the wharf. It was certainly of no value to her while she was in the harbor; and the only use made of it, which can be supposed to interfere with the rights of the plaintiff, was in navigating the vessel into and out of the harbor, when she arrived or was about to depart, and while she was within the jurisdiction of the United States. Now, it is obvious that the plaintiff sustained no damage, and the defendant derived no material advantage, from the use of an improvement of this kind by a foreign vessel in a single voyage to the United States, or from occasional voyages in the ordinary pursuits of commerce; or if any damage is sustained on the one side, or any profit or advantage gained on the other, it is so minute that it is incapable of any appreciable value.

But it seems to be supposed, that this user of the improvement was, by legal intendment, a trespass upon the rights of the plaintiff; and that although no real damage was sustained by the plaintiff, and no profit or advantage gained by the defendant, the law presumes a damage, and that the action may be maintained on that ground. In other words, that there is a technical damage, in the eye of the law, although none has really been sustained.

This view of the subject, however, presupposes that the patent laws embrace improvements on foreign ships, lawfully made in their own country, which have been patented here. But that is the question in controversy. And the court is of opinion that cases of that kind were not in the contemplation of Congress in enacting the patent laws, and cannot, upon any sound construction, be regarded as embraced in them. For such a construction would be inconsistent with the principles that lie at the foundation of these laws; and instead of conferring legal rights on the inventor, in order to do equal justice between him and those who profit by his invention, they would confer a power to exact damages where no real damage had been sustained, and would moreover seriously embarrass the commerce of the country with foreign nations. We think these laws ought to be construed in the spirit in which they were made-that is, as founded in justice and should not be strained by technical constructions to reach cases which Congress evidently could not have contemplated, without departing from the principle upon which they were legislating, and going far beyond the object they intended to accomplish.

The construction claimed by the plaintiff would confer on patentees not only rights of property, but also political power, and enable them to embarrass the treaty-making power in its negotiations with foreign antions, and also to interfere with the legislation of Congress when exercising its constitutional power to regulate commerce. And if a treaty should be negotiated with a foreign nation, by which the vessels of each party were to be freely admitted into the ports of the other, upon equal terms with its own, upon the payment of the ordinary port charges, and the foreign Government faithfully carried it into execution, yet the Government of the United States would find itself unable to fulfil its obligations if the foreign ship had about her, in her construction or equipment, anything for which a patent had been granted. And after paying the port and other charges to which she was subject by the treaty, the master would be met with a further demand, the amount of which was not even regulated by law, but depended upon the will of a private individual.

And it will be remembered that the demand, if well founded in the patent laws, could not be controlled or put aside by the treaty. For, by the laws of the United States, the rights of a party under a patent are his private property; and by the Constitution of the United States, private property cannot be taken for public use without just compensation. And in the case I have stated, the Government would be unable to carry into effect its treaty stipulations without the consent of the patentee, unless it resorted to its right of eminent domain, and went through the tedious and expensive process of condemning so much of the right of property of the patentee as related to foreign vessels, and paying him such a compensation therefor as should be awarded to him by the proper tribunal. The same difficulty would exist in executing a law of Congress in relation to foreign ships and vessels trading to this country. And it is impossible to suppose that Congress in passing these laws could have intended to confer on the patentee a right of private property, which would in effect enable him to exercise political power, and which the Government would be obliged to regain by purchase, or by the power of its eminent domain, before it could fully and freely exercise the great power of regulating commerce, in which the whole nation has an interest. The patent laws were passed to accomplish a different purpose, and with an eye to a different object; and the right to interfere in foreign intercourse, or with foreign ships visiting our ports, was evidently not in the mind of the Legislature, nor intended to be granted to the patentee.

Congress may unquestionably, under its power to regulate commerce, prohibit any foreign ship from entering our ports, which, in its construction or equipment, uses any improvement patented in this country, or may prescribe the terms and regulations upon which such vessel shall be allowed to enter. Yet it may perhaps be doubted whether Congress could by law confer on an individuals, or individuals, a right which would in any degree impair the constitutional powers of the legislative or executive departments of the Government, or which might put it in their power to embarrass our commerce and intercourse with foreign nations, or endanger our amicable relations. But however that may be, we are satisfied that no sound rule of interpretation would justify the court in giving to the general words used in the patent laws the extended construction claimed by the plaintiff, in a case like this, where public rights and the interests of the whole community are concerned.

The case of Caldwell v. Vlissengen, (9 Hare, 416, 9 Eng. L. and Eq. Rep., 51,) and the statute passed by the British Parliament in consequence of that decision, have been referred to and relied on in the argument. The reasoning of the Vice Chancellor is certainly entitled to much respect, and it is not for this court to question the correctness of the decision, or the construction given to the statute of Henry VIII.

But we must interpret our patent laws with reference to our own Constitution and laws and judicial decisions. And the court are of opinion that the rights of property and exclusive use granted to a patentee does not extend to a foreign vessel lawfully entering one of our ports; and that the use of such improvement, in the construction, fitting out, or equipment of such vessel, while she is coming into or going out of a port of the United States, is not an infringement of the rights of an American patentee, provided it was placed upon her in a foreign port, and authorized by the laws of the country to which she belongs.

In this view of the subject, it is unnecessary to say anything in relation to the second plea of the defendant, since the matters relied on in the first are sufficient to bar the plaintiff of his action, without the aid of the additional averments contained in the second.

The judgment of the Circuit Court must therefore be affirmed.

title: Brown v. Duchesne/Opinion of the Court


text: Talk:Brown v. Duchesne/Opinion of the Court


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Mordecal v. Lindsay

THIS was an appeal from the Circuit Court of the United States for the district of South Carolina.

It was a libel filed on the 6th of April, 1854, in the District Court of South Carolina, by Mordecai & Co., against the schooner Mary Eddy, and all persons intervening.

A very brief narrative will be sufficient to show the condition in which the case was, when it left the District Court, and this is all that is required under the present opinion of this court.

In March, 1854, the Mary Eddy was in New Orleans, about to sail for Charleston. One hundred and two hogsheads of sugar were shipped on board of her, which were to be delivered to Mordecai & Co. The libel was for the non-delivery of these articles.

The answer admitted the shipment and arrival of the vessel in Charleston, and then averred the delivery of three hogsheads of the sugar, (together with some barrels of syrup,) the freight of which Mordecai & Co. refused to pay. The answer then alleged that the libellants, having refused to pay freight until the sugars were received by them at their store, or until possession had passed to them, the master unloaded the residue of the sugars, and, when landed on the wharf, gave notice to Mordecai & Co. that he would deliver the articles to them upon payment of the freight; that Mordecai & Co. having refused to do this, the master retained the custody of the sugars in order to preserve his lien for the freight. A correspondence took place between the parties, which it is not necessary to state for the purposes of this report.

The district judge decreed in favor of the libellants, with costs, and then added:

'Mr. Gray, the commissioner and clerk of this court, will ascertain the charges to be made against the respective parties to this suit, and state the account between them. For this purpose, he is authorized to use the testimony already reported, and such further evidence as may be brought before him in relation to this point.'

Without any further proceedings being had in the case, the claimants appealed to the Circuit Court, and the record was accordingly transmitted.

When the cause came up for hearing before the circuit judge, he reversed the decree of the District Court, and dismissed the libel with costs, whereupon the libellants appealed to this court.

The case was argued upon its merits by Mr. Phillips for the appellants, and Mr. Johnson and Mr. Reverdy Johnson, jr., for the claimants, whose arguments it is not necessary to state in this report, in consequence of the case being decided upon a preliminary point.

Mr. Justice WAYNE delivered the opinion of the court.

title: Mordecal v. Lindsay


text: Talk:Mordecal v. Lindsay

title: Talk:Mordecal v. Lindsay


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Mordecal v. Lindsay/Opinion of the Court

This is an appeal from the Circuit Court of the United States for the district of South Carolina.

Upon the hearing of this cause in this court, it was suggested that the court had not jurisdiction of the case, on the ground that the District Court, which had original jurisdiction of it, had not given a final decree in favor of the libellants, before the cause was taken by appeal to the Circuit Court; from the decision of which, reversing the decision of the district judge and dismissing the libel, the appellants appealed to the Supreme Court. No such decree of the District Court is set out in the record; but the court, supposing it might be a clerical omission, gave to the counsel concerned in the cause time to ascertain the fact, in order that it might be made, either by consent of parties or by certiorari, a part of the record, that there might be no delay in the final disposition of the case by this court. The counsel having made the necessary inquiries from the clerk of the District and Circuit Courts, and having reported to this court that no final decree had been extended or passed in favor of the libellants by the district judge, and that the case had been taken by appeal to the Circuit Court upon such imperfect record, and decided in that court, without any notice of the omission having been brought to its view either from the record or in the argument of the case, the counsel have applied to this court to permit them to amend the record by consent, by inserting in it what might be agreed upon by them to be a final decree, urging, as the merits of the case between the parties had been fully discussed here, that the court could proceed upon such amendment to decide the case.

We have examined the proposal of counsel in connection with the laws of Congress regulating appeals from the District Court to the Circuit Court, and from the latter to this court, and also the decisions of this court upon those laws, and we do not find, upon any interpretation which has been or could in our view be given to them, that it is in our power to grant the application of counsel for the amendment of the record as they propose it should be done.

The right of appeal is 'conferred, defined, and regulated,' by the second section of the act of March 2, 1803, (ch. 20, 1 Stat. at Large, 244.) Its language is: 'That from all final judgments or decrees in any of the District Courts of the United States, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of fifty dollars, shall be allowed to the Circuit Court next to be holden in the district where such judgment or judgments, decree or decrees, may be rendered; and the Circuit Court or Courts are hereby authorized and required to receive, hear, and determine, such appeal. And that from all final judgments or decrees rendered in any Circuit Court, or in any District Court acting as a Circuit Court in cases of equity, of admiralty, and maritime jurisdiction, and of prize or no prize, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of two thousand dollars, shall be allowed to the Supreme Court of the United States; and that upon such appeal a transcript of the libel, bill, answer, depositions, and all other proceedings of what kind soever in the cause, shall be transmitted to the said Supreme Court.' It is, then, only upon final judgments and decrees that appeals can be taken from either of the courts to the other courts. Without such a decree, neither the Circuit nor the Supreme Courts can have jurisdiction to determine a cause upon its merits, as was done in this case by the Circuit Court, from which decision it has been brought by appeal to this court. The Circuit Court had nothing before it to make its decision available for the appellants, if its view of the merits of the case had coincided with the opinion of the district judge, or upon which its process could have been issued to carry out the judgment given by it in favor of the respondents. Nor could it have permitted an amendment of the record of appeal by the insertion of what the parties might have agreed to be a final judgment as to amount, without its having first received the judicial sanction of the district judge. And this court is as powerless in this respect as the Circuit Court was, as its jurisdiction depends upon that court having a proper legislative jurisdiction of the case. It cannot overlook the fact upon which its jurisdiction depends, by any action in the case in the Circuit Court upon an irregular appeal. The case in that court was coram non judice, and is so here. The appellants have the right to the execution of the order given by the district judge to the commissioner and clerk of the court, to ascertain the charges to be made against the respective parties to the suit, and to state an account between them; for which purpose he was authorized to use the testimony already reported, and such further testimony as might be brought before him in relation to that point. That the Circuit Court cannot direct to be done, nor can this court do so. All that we can do in the case, as it stands here, is to reverse the decree of the Circuit Court dismissing the appellants' libel, to send the case back to the Circuit Court, that the appeal in it may be dismissed by it for want of its jurisdiction, leaving the case in its condition before the appeal to that court, that the parties may carry out the case in the District Court to a final decree, upon such a report as the commissioner and clerk may make, according to the order which was given by the judge. The judgment of the Circuit Court is reversed accordingly.


text: Talk:Mordecal v. Lindsay/Opinion of the Court


text:
Cousin v. Labatut

THIS case was brought up, from the Supreme Court of the State of Louisiana, by a writ of error issued under the twenty-fifth section of the judiciary act.

As this case will probably be much referred to hereafter, as settling some general principles of great importance, it may be well to state in this report the precise nature of the certificates of confirmation and order of survey.

Under the act of Congress of April 25, 1812, (2 Stat. at L., 713,) Cousin presented a donation claim to the commissioners appointed under that act. On the 2d of January, 1816, the commissioners reported as follows upon this claim, calling it No. 255, and placing it in class B. (See American State Papers, Public Lands, vol. 3, p. 56.)

By whom claimed. Original Claimant. Nature of claim, and from what

authority derived.

F. Cousin Stephen Rene  Order of survey.

Date of claim. Quantity claimed. Where situated. By whom issued. When surveyed.

Sept. 10, 1789  1,000  St. Tammany  E. Miro

By whom surveyed. Inhabited and cultivated from to      General remarks.

It will be observed that the name of the original claimant is here said to have been Stephen Rene. No survey or location of the land was made under this certificate.

In 1819, Congress passed an act (3 Stat. at L., 528) confirming this claim amongst many others, and on the 8th of June, 1820, the register and receiver gave to Cousin the following certificate:

[Certificate of Confirmation.]

Commissioner's Report, Letter B, Certificate No. 178.

LAND OFFICE, ST. HELENA.

In pursuance of the act of Congress passed the 3d of March, 1819, entitled 'An act for adjusting the claims to land, and establishing land offices for the district east of the island of New Orleans,' we certify that claim No. 255, in the report of the commissioner marked B, claimed by Franchis Cousin, original claimant, Stephen Rene, is confirmed as a donation, and entitled to a patent for one thousand arpens, situated in St. Tammany, and claimed under an order of survey dated 10th September, 1798.

Given under our hands, this 8th day of June, 1820.

Attest: (Signed) CHARLES S.C.OSBY, Register.

F. HERAULT, Clerk.

FULWER SKIPWITH, Receiver.

It will be observed that the name of the original claimant is here mentioned as Stephen Rene, and there is no mode of survey pointed out, the original order of survey not being produced.

In 1822, Congress passed an act (3 Stat. at L., 707) giving to the registers and receivers power to direct the location and manner of surveying the claims to land confirmed by the act of 1819.

On the 21st of September, 1826, the register and receiver gave to Cousin the following order of survey:

[Order of Survey.]

LAND OFFICE, ST. HELENA.

Francis Cousin, Certificate No. 178, Dated June 8th, 1820.

ST. TAMMANY, Sept. 21, 1826.

Francis Cousin claims a tract of one thousand arpens of land, situate in the parish of St. Tammany, as purchaser from his father, Francis Cousin, deceased, who bought it from Louis Blanc, who bought it from the original owner, Gabriel Bertrand, and in virtue of certificate No. 178, dated 8th June, 1820, and signed Charles S.C.osby, register, and Fulwer Skipwith, receiver, in which certificate it is alleged by this claimant that it is erroneously set forth that Stephen Rene was the original claimant; it appearing that this tract of land is fronting on Bayon la Libert e, bounded below by the tract of land of Mr. Girod, and above by a tract of land belonging to claimant.

It is ordered that this claim be located and surveyed with a front extending on said bayou, from the land of said Girod to that of claimant above, and from these points on the bayou to run back for quantity.

Given under our hands, this 21st day of September, 1826.

(Signed) SAMUEL J. RANNELLS, Register.

WILL KINCHEN, Receiver.

The difference between this certificate and the other, as respects the derivation of title, will be manifest upon comparing the two.

Upon this subject, the Supreme Court of Louisiana made the following remarks:

'The counsel for plaintiff also objects to the certificate of 8th June, 1820, on account of the vagueness of description of the land donated. We consider this objection to be well founded. The description is, 'One thousand arpens, situated in St. Tammany.' It is plainly impossible to locate land by such a description as this. And when such is the case, the grant can produce no effect. (16 Peters, U.S. v. Miranda; 10 Howard, Villalobos v. U.S.; 15 Peters, U.S. v. Delestine; 11 Howard, Lecompte v. U.S.; 5 Annual, Ledoux v. Black.)

'It is proper here to mention that the order of survey of 10th September, 1798, mentioned in the certificate, is not produced, although formally called for by the opposite party. Had such an order of survey ever been given in evidence before the commissioner of land claims, it would have been recorded in the archives of the land office. (See acts of Congress of 1812 and 1819, above quoted.)

'But no such record appears.

'It was probably a consciousness of this defect in his title, which induced the defendant's ancestor to procure from Rannells and Kinchen, the successors of Cosby and Skipwith in the office of register and receiver of the land office at St. Helena, the order of location and survey of the 21st September, 1826, which the defendants offer in evidence.

'This paper sets out by declaring that the first certificate had erroneously stated the origin of defendant's title, gives another and totally different origin to the same as the correct one, and orders a survey to be made, and the defendant's donation to be located on the Bayou Libert e, between the lands of certain proprietors named. The survey of Vanzandt was made in conformity to this order.

'We view the amended certificate of the 21st September, 1826, and the survey under it, as nullities. For the certificate of Cosby and Skipwith followed strictly the report of the commissioner of land claims, confirmed by the act of Congress of 3d March, 1819. Therefore, in correcting that certificate, Rannells and Kinchen took upon themselves to correct the report of the commissioner of land claims, and to make the act of Congress apply to a claim which was not mentioned in that report, and which was consequently never before Congress.

'The Supreme Court of this State, in the case of Newport v. Cooper, (10 La. Rep.,) decided that the register and receiver of the land office at St. Helena were without power, by law, to reverse and annul a certificate granted by their predecessors. By parity of reasoning, are they without power to make amendments in such a certificate, which falsify the act of Congress on which the first certificate was based? If the claimant could not locate the land claimed by him, under his claim aspresented to the commissioner of land claims, and reported to Congress, that was a misfortune which the land officers at St. Helena had no power to remedy, by fabricating for him a new claim, seven years after the action of Congress upon the report.'

Under the order of September 21, 1826, Vanzandt made a survey in 1845, which was one of the evidences of Cousin's title.

The history of the case in the State courts of Louisiana is given in the opinion of this court.

It was argued by Mr. Janin for the plaintiff in error, and Mr. Benjamin for the defendants.

Mr. Justice CATRON delivered the opinion of the court.

title: Cousin v. Labatut


text: Talk:Cousin v. Labatut

title: Talk:Cousin v. Labatut


text:
Cousin v. Labatut/Opinion of the Court

Evariste Blanc sued Terence Cousin, in the eighth District Court of Louisiana, invoking the aid of that court to settle a disputed boundary between the plaintiff and defendant.

Cousin, instead of responding to the action, for the purpose of settling boundary, filed an answer, denying Blanc's title to the property described in his petition, and setting up title in himself, and claiming damages against Blanc, who joined issue on the answer, and denied the validity of the title asserted by Cousin. This turned Cousin into a plaintiff, (as the State courts held,) and imposed on him the burden of proof to support his title. It was adjudged in the District Court, on the documents presented by Cousin, that he had no title whatever to any part of the land in dispute; and so the Supreme Court of Louisiana held on an appeal to that court, where the cause was reheard.

Pending the appeal, Blanc died, and his widow and heirs were made parties. They prayed the benefit of the judgment of the court below, and also that it might be so amended by the Supreme Court as to give them the benefit of all that Blanc claimed in his petition-that is to say, 222.80 acres, according to certificate No. 1,280, showing a regular purchase from the United States; together with 1,240 arpens in superficies, according to a plan annexed to the original petition of Blanc; that they might be quieted in the possession thereof as owners, and that the 1,240 arpens may be bounded according to the plan. And to this effect the court gave judgment.

The laws of Congress, and the acts of the officers executing them in perfecting titles to public lands, have been drawn in question, and construed by the decision of the Supreme Court of Louisiana in this case; and the decision being against the title set up by Cousin, under the acts of Congress and the authority exercised under them, it follows that jurisdiction is vested in this court, by the 25th section of the judiciary act, to examine the judgment of the State court; and, in doing so, we refer to the opinion of that court, which is made part of the record by the laws of Louisiana, and is explanatory to the judgment, of which it is there deemed an essential part. We refer to the opinion, in order to show that questions did arise and were decided, as required, to give this court jurisdiction. 9 How., 9.) This is necessarily so in cases brought here by writ of error to the courts of Louisiana, because no bill of exceptions is necessary there, when appeals are prosecuted. The court of last resort acts on the law and facts as presented by the whole record.

By relying on this source of information, as to what questions were raised and were decided by the State court, we are relieved from all difficulty in this instance.

Cousin's claim is assumed to have orginated in a Spanish order of survey laid before the proper commissioner appointed under the act of April 25, 1812, whose duty it was to receive notices and evidences of claims, which were ordered to be recorded by the commissioner. It was made the duty of the commissioner to report to the Secretary of the Treasury upon claims, and the evidences thereof, thus notified to him; which report the act directed should be laid before Congress by the Secretary.

In January, 1816, the report was transmitted by him to Congress. By the act of March 3d, 1819, Congress legislated in regard to the claims reported. By that act, two land districts were established east of the island of New Orleans, and a register and receiver were provided for each.

The books of the former commissioners, in which the claims and evidences of claims were recorded, were directed to be lodged with the register; and the register and receiver were vested with power 'to examine the claims recognised, confirmed, or provided to be granted,' by the provisions of that act; they were instructed to make out, for each claimant entitled in their opinion thereto, a certificate according to the nature of the case, pursuant to the instructions of the Commissioner of the General Land Office; and, on the presentation at that office of such certificate, a patent was ordered to be issued. Francis Cousin's claim was within the above description.

As no provision was made by the act of 1819, vesting authority in the register and receiver to direct in what manner confirmed claims should be located and surveyed, it was (sec. 11) left to the deputies of the principal surveyor south of Tennessee, to find the lands, and survey them according to their own judgment. Then, again, the surveyors had no authority to adjust conflicting boundaries, and therefore further legislation was deemed necessary; and accordingly the act of June 8, 1822, was passed by Congress, giving the registers and receivers power to direct the manner in which claims should be located and surveyed, (sec. 4,) and power was also given to them to decide between parties whose claims conflicted.

In June, 1820, the register and receiver gave Cousin a certificate of confirmation under the act of 1819. They certify 'that claim No. 255 in the report of the commissioner, marked B, claimed by Francis Cousin, original claimant Stephen Rene, is confirmed as a donation, and entitled to a patent for one thousand arpens, situated in St. Tammany, and claimed under an order of survey dated 10th September, 1798.'

No Spanish survey was found, to aid the foregoing description.

In 1826, the register and receiver made an order of survey, as follows:

'FRANCIS COUSIN, CERTIFICATE NO. 178, DATED JUNE 8TH, 1820.

'Francis Cousin claims a tract of one thousand arpens of land, situate in the parish of St. Tammany, as purchaser from his father, Francis Cousin, deceased, who bought it from Louis Blanc, who bought it from the original owner, Gabriel Bertrand, and in virtue of certificate No. 178, dated 8th June, 1820, and signed Charles S.C.osby, register, and Fulwer Skipwith, receiver, in which certificate it is alleged by this claimant that it is erroneously set forth that Stephen Rene was the original claimant; it appearing that this tract of land is fronting on Bayou la Libert e, bounded below by the tract of land of Mr. Girod, and above by a tract of land belonging to claimant.

'It is ordered that this claim be located and surveyed with a front extending on said bayou, from the land of said Girod to that of claimant above, and from these points on the bayou to run back for quantity.'

The Supreme Court of Louisiana held the certificate of 1820 so vague as not to be of any value, and pronounced it void. Furthermore, that the second one of 1826 departed from the confirmation, and was also invalid. The first purported to be for land derived from Stephen Rene, as original claimant; and the second, for land of which Gabriel Bertrand was the original owner.

The act of 1822 is a supplement to the act of 1819; when taken together, they gave the register and receiver authority to declare what land had been confirmed, and how it should be surveyed. Now, if it be true, as is held by the State court, that the certificate of 1820 is so vague as to be of no value and void, then it follows, that another could be made in 1826 which would be certain in its description of the land confirmed, accompanied by an order of survey. Whether Rene or Bertrand once claimed the land, is immaterial. The confirmation is an incipient United States title, conferred on Cousin, which our Government, in its political capacity, reserved to itself the power to locate by survey, and to grant by the acts of its executive officers; with which acts the courts of justice have no jurisdiction to interfere. (16 How., 403, 414.)

It rested with the register and receiver to ascertain the location of the land confirmed to Cousin, from the evidences of claim recorded and filed with the register; and having decided where and how the land should be located and surveyed, the courts of justice cannot reverse that decision; the power of revision is vested in the Commissioner of the General Land Office.

It is proper here to say, we do not hold that the certificate of 1820 was void, because it was too vague to authorize a survey of the land. It established the fact that Cousin's claim was one of those described in the act of 1819, which had been confirmed. The act of 1822 was remedial; its main object was to confer power on the register and receiver to amend vague descriptions; so vague that patents could not issue on them, as required by the act of 1819.

The amendment was effectually made in this instance by the order of survey of 1826; and, when the survey was executed according to that order, the United States Government was bound by it until it was set aside at the General Land Office.

The act of March 3, 1831, authorized a surveyor general to be appointed for the State of Louisiana, whose duty it was to cause confirmed claims to be surveyed; and the registers and receivers were again empowered (sec. 6) to decide in cases of contested boundaries, and consequently to control the surveys. On the 22d of December, 1846, the official survey (accompanied by a plat) of the claim of Francis Cousin, was approved at the surveyor general's office. This is known as Vanzandt's survey, and is the one relied on by Cousin in his defence. A copy thereof, duly certified as a record of the surveyor general's office, is found in the record; and which copy the act of 1831 (sec. 5) declares shall be admitted as evidence in the courts of justice.

The act of 1831 (sec. 6) further declares (as respects interfering claims) 'that the decisions of the register and receiver, and the surveys and patents that may be issued in conformity thereto, shall not in anywise be considered as precluding a legal investigation and decision by the proper judicial tribunals between the parties to any such interfering claims, but shall only operate as a relinquishment on the part of the United States of all title to the land in question.' The foregoing reservation applies here; Cousin's survey extended in depth, from Bayou Libert e, so as to include 222.80 acres of land, which had been purchased of the United States by Francis Alpuente, and on the 4th of March, 1844, (before Cousin's survey was made,) duly conveyed to the plaintiff, Blanc, as part of the succession of Alpuente.

Title to this land is claimed by Cousin by force of his confirmation, rendered certain by his survey of 1846; and which claim was rejected by the Supreme Court of Louisiana, when they rejected Cousin's title as set up.

We are of opinion that Cousin's title had no standing in a court of justice until the land was surveyed, and the survey approved as a proper one at the surveyor general's office; and that therefore the United States could lawfully sell the land, and give title to Alpuente. (8 How., 306.) The mere loose order of survey, made in 1826, by the register and receiver, cannot be recognised in this case as conferring any vested interest, as against Alpuente, to the 222.80 acres purchased by him; and to this extent the decision of the Supreme Court of Louisiana is proper. But as respects all other parts of Cousin's survey, it furnishes prima facie evidence of title in him, subject to be contested by the opposing title of Blanc, if he has any by prescription or otherwise.

We order that the judgment be reversed, and the cause remanded to the Supreme Court of Louisiana, to be further proceeded in.

title: Cousin v. Labatut/Opinion of the Court


text: Talk:Cousin v. Labatut/Opinion of the Court


text: Hartshorn v. Day

title: Hartshorn v. Day


text:
Page:Syria, the land of Lebanon (1914).djvu/161

THE RICHES OF DAMASCUS bowed down with his royal master. About the year 400 A. D. the then Roman temple was transformed into the Church of St. John the Baptist. When Damascus fell into the hands of the Omayyade Dynasty in the seventh century, the Christian house of worship was converted into a mosque of such miraculous splendor that the vast multitude of human artists and artisans who labored upon it were later believed to have been assisted by the genii. All Syria was ransacked for ancient columns to adorn the new structure. The pavement was of the most expensive marbles, the prayer-niches and pulpits were set with jewels, the carved wooden ceiling was inlaid with precious metals, and six hundred hanging lamps of solid gold cast their mellow light upon the exquisite mosaic decorations. Since then, the building has been burned and burned again, and at each restoration has lost something of its former magnificence. Yet still it ranks with St. Sophia of Constantinople, the Dome of the Rock at Jerusalem and the Sacred Mosque of Mecca, as one of the greatest of Moslem sanctuaries.

Time would fail to tell of its size and splendor, its holy impressiveness to Moslem eyes, and the inspiring views from its lofty minarets. In its great court rise the Dome of the Hours and the Dome of the Fountain, which is believed to mark a point on [ 121 ]


text: Talk:Hartshorn v. Day

title: Talk:Hartshorn v. Day