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State of New Hampshire v. State of Louisiana State of New York/Opinion of the Court

Thereupon the state of New York, on the twenty-fifth of April, filed in this court a bill in equity against the state of Louisiana and the officers of the state composing the board of liquidation, with substantially the same averments and the same prayer as in that of the state of New Hampshire. There was, however, a statement in this bill, not in the other, to the effect that many of the consolidated bonds were issued to citizens of the state of New York in exchange for old bonds of Louisiana which they held, and that citizens of New York now hold and own bonds of the same class to a large amount. Testimony has been taken in support of this averment.

The first question we have to settle is whether, upon the facts shown, these suits can be maintained in this court.

Article 3, § 2, of the constitution provides that the judicial power of the United States shall extend to 'controversies between two or more states,' and 'between a state and citizens of another state.' By the same article and section it is also provided that in cases 'in which a state shall be a party, the supreme court shall have original jurisdiction.' By the judiciary act of 1789, c. 20, § 13, (1 St. 80,) the supreme court was given 'exclusive jurisdiction of all controversies of a civil nature where a state is a party, except between a state and its citizens; and except, also, between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction.'

Such being the condition of the law, Alexander Chisholm, as executor of Robert Farquar, commenced an action of assumpsit in this court against the state of Georgia, and process was served on the governor and attorney general. Chisholm v. Georgia, 2 Dall. 419. On the eleventh of August, 1792, after the process was thus served, Mr. Randolph, the attorney general of the United States, as counsel for the plaintiff, moved for a judgment by default on the fourth day of the next term, unless the state should then, after notice, show cause to the contrary. At the next term Mr. Ingersoll and Mr. Dallas presented a written remonstrance and protestation on behalf of the state against the exercise of jurisdiction, but in consequence of positive instructions they declined to argue the question. Mr. Randolph thereupon proceeded alone, and in opening his argument said: 'I did not want the remonstrance of Georgia to satisfy me that the motion which I have made is unpopular. Before the remonstrance was read, I had learnt from the acts of another state, whose will must always be dear to me, that she too condemned it.'

On the nineteenth of February, 1793, the judgment of the court was announced and the jurisdiction sustained, four of the justices being in favor of granting the motion and one against it. All the justices who heard the case filed opinions, some of which were very elaborate, and it is evident the subject received the most careful consideration. Mr. Justice WILSON, in his opinion, uses this language, (p. 465:)

'Another declared object (of the constitution) is, 'to     establish justice.' This points, in a particular manner, to      the judicial authority. And when we view this object in     conjunction with the declaration 'that no state shall pass a      law impairing the obligation of contracts,' we shall probably      think that this object points, in a particular manner, to the      jurisdiction of the court over the several states. What good     purpose could this constitutional provision secure, if a      state might pass a law impairing the obligation of its own      contracts, and be amenable, for such violation of right, to      no controlling judiciary power?'

'The extension of the judiciary power of the United States to     such controversies appears to me to be wise, because it is      honest, and because it is useful. It is honest, because it     provides for doing justice without respect to persons, and,      by securing individual citizens as well as states in their      respective rights, performs the promise which every free      government makes to every free citizen, of equal justice and      protection. It is useful, because it is honest; because it     leaves not even the most obscure and friendless citizen      without means of obtaining justice from a neighboring state;      because it obviates occasions of quarrels between states on      account of the claims of their respective citizens; because      it recognizes and strongly rests on this great moral truth,      that justice is the same whether due from one man or a      million, or from a million to one man; because it teaches and      greatly appreciates the value of our free republican national      government, which places all our citizens on an equal      footing, and enables each and every of them to obtain justice      without any danger of being overborne with the might and      number of their opponents; and because it brings into action      and enforces the great and glorious principle that the people      are the sovereign of this country, and consequently that      fellow-citizens and joint sovereigns cannot be degraded by      appearing with each other in their own courts to have their      controversies determined.'

Prior to this decision the public discussions had been confined to the power of the court under the constitution to entertain a suit in favor of a citizen against a state, many of the leading members of the convention arguing, with great force, against it. As soon as the decision was announced, steps were taken to obtain an amendment of the constitution withdrawing jurisdiction. About the time the judgment was rendered, another suit was begun against Massachusetts, and process served on John Hancock, the governor. This led to the convening of the general court of that commonwealth, which passed resolutions instructing the senators and requesting the members of the house of representatives from the state 'to adopt the most speedy and effectual measures in their power to obtain such amendments in the constitution of the United States as will remove any clause or articles of the said constitution which can be construed to imply or justify a decision that a state is compellable to answer in any suit by an individual or individuals in any courts of the United States.' Other states also took active measures in the same direction, and, soon after the next congress came together, the eleventh amendment to the constitution was proposed, and afterwards ratified by the requisite number of states, so as to go into effect on the eighth of January, 1798. That amendment is as follows: 'The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens and subjects of any foreign state.'

Under the operation of this amendment the actual owners of the bonds and coupons held by New Hampshire and New York are precluded from prosecuting these suits in their own names. The real question, therefore, is whether they can sue in the name of their respective states after getting the consent of the state, or, to put it in another way, whether a state can allow the use of its name in such a suit for the benefit of one of its citizens.

The language of the amendment is, in effect, that the judicial power of the United States shall not extend to any suit commenced or prosecuted by citizens of one state against another state. No one can look at the pleadings and testimony in these cases without being satisfied, beyond all doubt, that they were in legal effect commenced and are now prosecuted solely by the owners of the bonds and coupons. In New Hampshire, before the attorney general is authorized to begin a suit, the owner of the bond must deposit with him a sum of money sufficient to pay all costs and expenses. No compromise can be effected except with the consent of the owner of the claim. No money of the state can be expended in the proceeding, but all expenses must be borne by the owner, who may associate with the attorney general such counsel as he chooses, the state being in no way responsible for fees. All moneys collected are to be kept by the attorney general, as special trustee, separate and a part from the other moneys of the state, and paid over by him to the owner of the claim, after deducting all expenses incurred, not before that time paid by the owner. The bill, although signed by the attorney general, is also signed, and was evidently drawn, by the same counsel who prosecuted the suits for the bondholders in Louisiana, and it is manifested in many ways that both the state and the attorney general are only nominal actors in the proceeding. The bond-owner, whoever he may be, was the promoter and is the manager of the suit. He pays the expenses, is the only one authorized to conclude a compromise, and, if any money is ever collected, it must be paid to him without even passing through the form of getting into the treasury of the state.

In New York no special provision is made for compromise or the employment of additional counsel, but the bondholder is required to secure and pay all expenses and gets all the money that is recovered. This state as well as New Hampshire is nothing more nor less than a mere collecting agent of the owners of the bonds and coupons, and while the suits are in the names of the states, they are under the act ual control of individual citizens, and are prosecuted and carried on altogether by and for them.

It is contended, however, that, notwithstanding the prohibition of the amendment, the states may prosecute the suits, because, as the 'sovereign and trustee of its citizens,' a state is 'clothed with the right and faculty of making an imperative demand upon another independent state for the payment of debts which it owes to citizens of the former.' There is no doubt but one nation may, if it sees fit, demand of another nation the payment of a debt owing by the latter to a citizen of the former. Such power is well recognized as an incident of national sovereignty, but it involves also the national powers of levying war and making treaties. As was said in U.S. v. Dickelman, 92 U.S. 524, if a sovereign assumes the responsibility of presenting the claim of one of his subjects against another sovereign, the prosecution will be 'as one nation proceeds against another, not by suit in the courts, as of right, but by diplomatic negotiation, or, if need be, by war.'

All the rights of the states, as independent nations, were surrendered to the United States. The states are not nations, either as between themselves or towards foreign nations. They are sovereign within their spheres, but their sovereignty stops short of nationality. Their political status at home and abroad is that of states in the United States. They can neither make war nor peace without the consent of the national government. Neither can they, except with like consent, 'enter into any agreement or compact with another state.' Article 1, § 10, cl. 3.

But it is said that even if a state, as sovereign trustee for its citizens, did surrender to the national government its power of prosecuting the claims of its citizens against another state by force, it got in lieu the constitutional right of suit in the national courts. There is no principle of international law which makes it the duty of one nation to assume the collection of the claims of its citizens against another nation, if the citizens themselves have ample means of redress without the intervention of their government. Indeed, Sir Robert Phillimore says, in his Commentaries on International Law, vol. 2, (2d Ed.) p. 12: 'As a general rule, the proposition of Martens seems to be correct, that the foreigner can only claim to be put on the same footing as the native creditor of the state.' Whether this be in all respects true or not, it is clear that no nation ought to interfere, except under very extraordinary circumstances, if the citizens can themselves employ the identical and only remedy open to the government if it takes on itself the burden of the prosecution. Under the constitution, as it was originally construed, a citizen of one state could sue another state in the courts of the United States for himself, and obtain the same relief his state could get for him if it should sue. Certainly, when he can sue for himself, there is no necessity for power in his state to sue in his behalf, and we cannot believe it was the intention of the framers of the constitution to allow both remedies in such a case. Therefore, the special remedy, granted to the citizen himself, must be deemed to have been the only remedy the citizen of one state could have under the constitution against another state for the redress of his grievances, except such as the delinquent state saw fit itself to grant. In other words, the giving of the direct remedy to the citizen himself was equivalent to taking away any indirect remedy he might otherwise have claimed, through the intervention of his state, upon any principle of the law of nations. It follows that when the amendment took away the special remedy there was no other left. Nothing was added to the constitution by what was thus done. No power, taken away by the grant of the special remedy, was restored by the amendment. The effect of the amendment was simply to revoke the new right that had been given, and leave the limitations to stand as they were. In the argument of the opinions filed by the several justices in the Chisholm Case, there is not been an intimation that if the citizen could not sue, his state could sue for him. The evident purpose of the amendment, so promptly proposed and finally adopted, was to prohibit all suits against a state by or for citizens of other states, or aliens, without the consent of the state to be sued, and, in our opinion, one state cannot create a controversy with another state, within the meaning of that term as used in the judicial clauses of the constitution, by assuming the prosecution of debts owing by the other state to its citizens. Such being the case, we are satisfied that we are prohibited, both by the letter and the spirit of the constitution, from entertaining these suits, and the bill in each of them is consequently dismissed.


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Page:Observations on Man 1834.djvu/91

 curls which frequently appear to the eye in muscles, after boiling or roasting, and the rhomboidal pinnulae taken notice of by Dr. Hales in the abdominal muscles of a living frog, when under contraction, all seem to favour this fifth supposition.

Dr. Pemberton conjectures, that the cause of the contraction of muscular fibres is no other than the common cause of the cohesion of the small particles of the muscular fibres increased. And this seems very probable; for the muscles are hard during contraction, soft during relaxation; and hardness and softness are evidently nothing but variations in the cohesion of the small particles of bodies. Neither is this conjecture at all repugnant to the supposition of an electrical attraction above made, or to the doctrine of vibrations; for electricity may reach to small distances, without being excited by friction, and flow from the same principle as the cohesion of bodies, as Sir Isaac Newton has observed. It may therefore be the general cause of cohesion, and may be excited in the muscular fibres in an extraordinary degree, whenever extraordinary vibrations are communicated to them. Or, if we suppose the cause of cohesion to be something distinct from electricity, it may, however, be increased by vibrations of the small cohering particles.

, when the fibres are in a state of contraction, they are hard; and this hardness, if it be supposed to extend to the small particles (which is no unreasonable supposition), must render the particles of these particles, i.e. the particles supposed in these propositions to be agitated with vibrations, indisposed to receive these vibrations; but the free admission of these vibrations is by supposition the cause which excites the attractions of the particles, and the consequent contraction of the muscle. It follows therefore, that the hardness which impedes these vibrations, must also lessen the attraction and contraction; or, in other words, that the contraction of a muscle, when carried to a certain degree, must check itself, and bring on a relaxation, after a time sufficient for the proper causes to take effect.

In like manner, when a muscle is relaxed, the vibrations which descend along the motory nerves pass freely into the muscular fibres, increase the attractions of the particles, and bring on the opposite state, that of contraction; and so on alternately.

The fibres of the relaxed muscle may also be considered as under a state of distention to a certain degree, and, consequently, as liable to an increase of vibrations upon this account. To which we may farther add, that since vibrations are hindered from passing into the contracted muscle, in the manner just now explained, they will pass with greater force into the relaxed

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Page:Observations on Man 1834.djvu/92

 one, from the place of the common derivation of their nerves, wherever there are antagonist muscles that derive nerves from the same trunk, as in the limbs, and muscles of respiration.

. It appears from this method of considering the contractions and relaxations of muscles, that there is a certain degree of hardness or contraction in muscular fibres, which may be supposed just to balance each degree of force with which vibrations descend into the muscular fibres; and that while this equilibrium subsists, the contraction can neither be increased nor abated.

order to make this appear, it will be proper to distinguish the motory vibrations, or those which descend along the nerves of the muscles into their fibres, into the five following classes:

First, then, We are to conceive, that those sensory vibrations which are excited in the external organs, and ascend towards the brain, when they arrive, in their ascent, at the origins of motory nerves, as they arise from the same common trunk, plexus, or ganglion, with the sensory ones affected, detach a part of themselves at each of these origins down the motory nerves; which part, by agitating the small particles of the muscular fibres, in the manner explained in the sixteenth proposition, excites them to contraction.

Secondly, The remainder of the sensory vibrations, which arrives at the brain, not being detached down the motory nerves in its ascent thither, must be diffused over the whole medullary substance. It will therefore descend from the brain into the whole system of motory nerves, and excite some feeble vibrations, at least, in them. The same may be observed of ideal vibrations, generated in the brain by association; these must pervade the whole medullary substance, and, consequently, affect all the motory nerves in some degree.

Thirdly, The heat of the blood and pulsation of the arteries, which pass through the medullary substance, must always excite, or keep up, some vibrations in it; and these must always descend into the whole system of muscles. And I apprehend, that, from these two last sources taken together, we may account for that moderate degree of contraction, or tendency thereto, which is observable in all the muscles, at least in all those of healthy adults, during vigilance.

Fourthly, When vivid vibrations are excited in membranes of an uniform texture, by a stimulus of any kind, they seem to run over the whole extent of such membranes, and by this means to have a great influence in contracting all the muscles that lie near any part of this membrane, though they be remote from the

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United States v. The Nuestra Senora De Regla

The steamer Nuestra Senora de Regla was built in New York for     the claimant, a railroad company in Cuba, created by the laws      of Spain. She was delivered to an agent of the claimant on     the sixth of November, 1861, and sailed for Havana in command      of a Spanish master. She was a side-wheel steamer of about     300 tons burden, built to run on a ferry between Havana and a terminus of the railroad company's      railroad. On her way down the coast she went into Port Royal,     and while there the quartermaster of the United States at      that post offered to purchase her for the use of the      government. The master declined to sell, as he had no     authority. She was then, on the twenty-ninth of November,     seized by order of Gen. Thomas W. Sherman, in command of the      United States forces. In communicating the fact of the     seizure to the adjutant general of the army, on the second of      December, the general said: 'If this steamer I have seized is      confiscated she should be left here. She is just the thing we     want, and admirably adapted for these waters and our purpose. She is new, and exactly such a boat as they have at the     Jersey City ferry in New York. Will carry 1,000 men, and will     draw not over six or seven feet.'

No judicial proceedings were instituted for her condemnation,     but at some time, before December 16th, the following      charter-party was entered into:

'Articles of agreement made this ___ day of December, 1861,     between ___, captain of the steam ferry-boat Nuestra Senora      de Regla, for and on behalf of the owners of the said      ferry-boat, of the first part, and Captain Rufus Saxton, as      assistant quartermaster in the United States army, for and on      behalf of the United States of America, of the second part,      witnesseth:

'That the said party of the first part, for and in     consideration of the payment hereinafter promised to be well      and truly made by the said party of the second part, hath      chartered to the United States the steam ferry-boat Nuestra      Senora de Regla, with all her tackle, apparel, furniture, and      machinery, to be used for transporting troops, stores, or      other things, as the said party of the second part may      direct.

'And the said party of the second part both agree, for and in     consideration of the faithful performance of the above duty,      that the said party of the first part shall receive the sum      of $200 for each and every day the said boat may be kept in      service, said steam ferry-boat to be kept staunch, sound, and      strong, and her machinery in good running order and condition, by the      said party of the first part.

'It is understood by the parties to this agreement that in     case the said steam ferry-boat shall be confiscated to the      United States, then this contract shall be void; otherwise to      remain in full force and virtue.

'It is furthermore understood by the parties to this     agreement that the said steam ferry-boat is not to be run      outside of the bar of Port Royal, but at any and all points      on the rivers and creeks that connect with Broad river.

'This contract to commence on the sixteenth day of December     1861, and continue in force 10 days, after which each party      has a right to cancel the same.

'In witness whereof the undersigned have hereunto affixed     their hands and seals, at Hilton Head, S.C.., the day and      date first above written.

'[S'd] YGNACIO A. REYNALS. [L. S.]

'[S'd] R. SAXTON, [L. S.]

'Capt. U.S. Army, Chief Quartermaster, E. C.'

The testimony shows that $200 a day was a fair price for the     use of the vessel at that place at that time. One witness,     competent to judge, testified to that effect, and no attempt      was made by the United States to contradict him.

The vessel was kept in the possession or under the control of     the quarter-master until the twenty-ninth of January, when      she was in form delivered to the flag officer of the navy in      command at that station. She was, however, kept in constant     use by the government as a transport, in the way contemplated      by the charter, from the sixteenth of December until about      the first of March, when she was sent to New York. No     judicial proceedings were begun against her until the ninth      of June, when a libel of information in prize was filed in      the district court for the southern district of New York by      the United States, in behalf of themselves 'and of the naval      captors in interest.' She was attached on the same day by the      marshal, and the usual monition was issued and served. The     owner filed a claim on the ninth of July. No further     proceedings were had until the twenty-second of August, when      the following order was entered: 'On reading and filing a notice of motion and a verified copy      of a letter from the secretary of the navy, stating that the      navy department desires to obtain possession of the steamer      Nuestra Senora de Regla, and on hearing Mr. E. Delafield      Smith, United States district attorney, in support of the      motion, and Mr. W. R. Beebe, proctor for the claimants, in      opposition thereto, it is hereby ordered that the said      steamer Nuestra Senora de Regla be appraised by Benjamin F.      Delano, United States naval constructor, and Benjamin F.      Garvin, chief engineer, both now stationed at the navy yard,      New York, and John Inglis; that such appraisement be filed      with all convenient speed with the clerk of this court; that      thereafter said steamer be delivered to the navy department      for the use of the government, upon filing in court a      certificate of the assistant treasurer of the United States      in New York that the amount of the appraisement has been      deposited in the United States treasury, subject to the order      and disposal of the court on final decree in the case.

'SAMUEL R. BETTS.'

The letter of the secretary of the navy referred to in this     order is as follows:

'NAVY DEPARTMENT, August 11, 1862

'SIR: The department will take the steamer Nuestra Senora de     Regla at the appraisement of $25,000.

'It desires early information, if practicable, as to the     appraisement in the case of the Annie, the Stettin, and the      Memphis.

'I am, respectfully, your obedient servant,

'GIDEON WELLES.'

The vessel was valued by two of the appraisers at $28,000,     and by the third at $30,000, and immediately delivered to the      navy department, although the certificate of deposit provided      for was never filed. The cause was heard on the twentieth of     June, 1863, and a decree entered directing that the vessel be      restored to the owner, but reserving all questions of costs,      and damages resulting from the capture, for future hearing      and determination. On the fifteenth of October, 1863, the     following entry was made in the cause:

'It having been mutually agreed between the counsel for the respective parties that the said vessel, in the above     decision, was immediately taken into the possession and use      of the United States under a charter-party, and delivered      them thereunder, and so remained without molestation from the      claimants, on motion of the counsel for the vessel, and with      the assent of the United States attorney, it is ordered by      the court that further proceedings and litigation be stayed      in the above cause, to the end that all questions of damages,      reserved in the decision of the court in the term of June      last, may be considered and adjusted by the government of the      United States in the application, and with the concurrence of      the government of Spain.

'SAMUEL R. BETTS.'

On the twentieth of May, 1870, the following letter was     addressed to the Spanish minister in Washington by the      secretary of state:

'DEPARTMENT OF STATE, WASHINGTON, May 20, 1870.

'SIR: I have the honor to acknowledge the receipt of your     note of the fifth instant in relation to the Spanish steamer      Nuestra Senora de Regla, and the claim which arose in      consequence of her seizure by the United States authorities      in 1861.

'The district court of the United States for the southern     district of New York, after deciding that the claimants were      entitled to restitution of the vessel, made an order      suspending proceedings, to the end that the question of      damages might be considered and adjusted by the government on      the application and with the concurrence of that of Spain.

'Without referring to the reasons which have so long delayed     any arrangement between the two governments, I have now to      say that it will be most satisfactory to the government that      the parties interested should apply to the court, which still      retains jurisdiction of the case, to obtain such further      relief as justice may demand, and in the mode which that      tribunal shall deem most proper and convenient.


text: Talk:United States v. The Nuestra Senora De Regla


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United States v. The Nuestra Senora De Regla/Opinion of the Court

'I avail myself of this occasion to offer to you assurances     of my very high consideration.

J. C. BANCROFT DAVIS,

'Acting Secretary of State.' * On the second of June following, the cause was referred to one of the commissioners of the court to ascertain the amount of damages the claimant had sustained by the seizure and detention of the vessel. The commissioner made his report on the twentieth of May, 1871, fixing the damages for the detention at the rate of $200 a day from November 29, 1861, to June 20, 1863, the date of the decree for restoration, with interest at 6 per cent. per annum, amounting to $167,370.66 3/2, and allowing for the expenses and services of an agent, remaining with and attending to the vessel, $5,680; for counsel fee in defending the proceedings, $5,000; and for the value of the vessel at the date she should have been restored, with interest added, $36,833.33 1/3; or a total of $214,884. Exceptions were taken to this report by the United States, but they were overruled, and a decree rendered for the full amount allowed by the master, with interest added.

From that decree an appeal was taken to this court, where, at     the October term, 1872, it was decided 'that the vessel was      not lawful prize of war or subject of capture, and the      corporation which owned her is doubtless entitled to fair      indemnity for the losses sustained by the seizure and      employment of the vessel; but it may be well doubted whether      it is not more properly a subject of diplomatic adjustment      than determination by the courts.' It was also said in the      opinion: 'The decree of the district court included the sum      of $5,000 for counsel fees. We think that the amount was     greatly excessive, and the allowance for counsel fees wholly      unwarranted.' For the errors thus indicated the decree was      reversed. The Nuestra Senora de Regla, 17 Wall. 31. The case     was then remanded for further proceedings in accordance with      the opinion. On the twenty-second of July, 1873, after the     mandate was filed, a second reference was made to the      commissioner 'to assess the damages of the claimant of the      vessel sustained by him in consequence of the seizure and      detention of the vessel, and that on such reference all the      proofs already taken in the cause or before the referee be      used, together with such other proofs as may be put in by      either party.'

Under this reference the commissioner again reported that the     United States continued to use the vessel after she was taken possession of by the navy department pursuant to the order of      August 22, 1862, until the twentieth of June, 1863, the date      of the decree for her restoration, and that she had never      been restored to the owners, or her value paid. He therefore     allowed—

For detention from November 29, 1861, to June 20,

Interest at 6 per cent. to date of report,. 81,698

For value of vessel, ascertained to be. 30,000

For expenses of agent, 568 days at $10,. 5,680

$252,527

To this report exceptions were filed on behalf of the United     States, but they were overruled by the court, and a decree      entered March 8, 1879, for the amount found due, with      interest from the date of the report, or in all $308,932.38. From that decree this appeal was taken.

Asst. Atty. Gen. Maury, for the United States.

Wm. Allen Butler and W. R. Beebe, for appellee.

[Argument of Counsel from pages 99-100 intentionally omitted]

WAITE, C. J.

The facts to be considered on this appeal are as follows:

That the steamer was not lawful prize or the subject of capture was expressly decided on the former appeal. It was also impliedly settled that the capture was without probable cause, for it was said the owner was undoubtedly entitled to a fair indemnity for the losses sustained, the only difficulty being as to the amount. These questions are, therefore, no longer open. Clark v. Keith, decided at the present term, [1 SUP. CT. REP. 568;] Sup'rs v. Kennicott, 94 U.S. 499.

The first of the remaining questions to be considered is whether & decree can be entered against the United States for damages. As the capture was made by the army, or by the army and navy operating together, it inured exclusively to the benefit of the United States. There is no distribution of prize money in such a case. U.S. v. Steam Vessels of War, decided at this term, [1 SUP. CT. REP. 539;] The Siren, 13 Wall. 394. The United States were, therefore, in legal effect the captors, and they came voluntarily into court to secure for themselves the benefit of what had been done. They deliberately adopted the acts of the military and naval officers as their own, and came, as captors, to condemn their prize. Offers to purchase the vessel were made and declined before she was seized, and soon after the seizure she was chartered and put into actual use without any attempt at securing an adjudication. It is evident, also, that the capture must have been the subject of diplomatic correspondence between the government of Spain and the United States before the vessel was brought in for adjudication, because on the sixth of May, 1862, after the vessel got to New York, and before the libel was filed, Mr. Seward, the then secretary of state, wrote the district attorney for the southern district of New York as follows:

'SIR: Noticing the arrival at New York of the Spanish steamer     Nuestra Senora de la Regla, which was seized at Port Royal by      General Sherman for an alleged illegal breach of neutrality,      I now transmit the papers found on board of her, and an      abstract of them which I caused to be prepared and which you      may find useful.' Although the libel was filed on the ninth of June, 1863, and the elaim was promptly put in, the adjudication was not had until June of the following year, when all further proceedings were stayed with the consent of both parties to await an adjustment of damages by the two governments. Nothing further was done until nearly seven years afterwards, when the secretary of state informed the Spanish government of the wish of the United States that the parties interested should apply to the court, which still retained jurisdiction, for such relief as justice demanded, and in the mode that tribunal should deem most proper and convenient. Thereupon, on motion of the claimant, and with the consent of the United States district attorney, the reference was ordered to ascertain the damages. Under these circumstances we cannot but think the United States have voluntarily submitted themselves to the court at the instance of the Spanish government, and with the consent of the claimant, for the purpose of having the questions of damages growing out of the capture judicially settled according to the rules applicable to private persons in like cases.

It is objected, however, that the executive department of the government had no power, in the absence of express legislative authority, to make such a submission. It was the duty of the United States, under the law of nations, to bring all captured vessels into a prize court for adjudication. If that had not been done in this instance, the Spanish government would have had just cause of complaint, and could have demanded reparation for the wrongs that had been done one of its subjects. The executive department had the right to bring the suit. In that suit it had been determined that the capture was unlawful. Necessarily, therefore, the question of damages to the owner of the captured vessel arose. Since, without the consent of the United States, no judgment for damages could be rendered against them in the pending suit that could be enforced by execution, the Spanish government had the right to assume the prosecution of the claim, and it did. Necessarily the negotiations on the part of the United States under this claim were conducted by the executive. After long delay no agreement was reached, and as a last resort for ending the controversy it was determined to refer the whole matter to the court for judicial inquiry and determination. We see no reason why this might not be done in such a case. It is true, any judgment that may be rendered cannot be judicially enforced, but the questions to be settled are judicial in their character, and are incidents to the suit which the United States were required to bring to enforce their rights as captors. It is too late now to insist that the case is not one of prize, because in the libel it is expressly alleged that the vessel was captured as lawful prize, and condemnation was asked on that account. When, therefore, the United States, through the executive of the nation, waived their right to exemption from suit, and asked the prize court to complete the adjudication of a cause which was rightfully begun in that jurisdiction, we think the government is bound by the submission, and that it is the duty of the court to proceed to the final determination of all the questions legitimately involved.

The next inquiry is as to the amount of damages. The duty of a captor is to institute judicial proceedings for the condemnation of his prize without unnecessary delay, and if he fails in this the court may, in case of restitution, decree demurrage against him as damages. This rule is well settled. 2 Wheat. App. 11; The Appollon, 9 Wheat. 377; The Lively, 1 Gall. 327; The Corier Maritimo, 1 Rob. 287.

Upon the facts in this case there can be no doubt of the propriety of such an allowance for the extraordinary detention of the vessel before she was delivered up for adjudication, especially since she was detained for the express purpose of use by the United States. And as to the amount of the allowance there is no opportunity for discussion. The United States were willing and actually contracted to pay $200 a day for her use if she was not in fact lawful prize, and that is shown to have been a reasonable price for her charter at the time. She was seized on the twenty-ninth of November, and it is fair to assume that if due diligence had been used she might have been surrendered for adjudication by the sixteenth of December, when her charter began to run. She was not actually surrendered until the ninth of June-a delay of 175 days beyond what was necessary. It is not disputed that her value at that time was $30,000. She cost when built $50,000, and was new when captured. As she has never been restored under the order to that effect, there can be no doubt of the liability of the United States for her value, when at their request she was delivered into their possession by the court. It is not a matter of any importance that the certificate of deposit in the treasury of the amount of her appraised value was not filed. By taking the vessel on the terms imposed by the court, the United States impliedly agreed to restore her in as good condition as she was when taken, or pay her value in money. By the surrender of the vessel for adjudication, the United States relieved themselves from any further liability for damages in the way of demurrage, and became bound for the vessel instead.

The allowance for demurrage includes reasonable compensation for the pay and expenses of an agent to look after the interests of the owners up to the time of the delivery of the vessel to the navy department by the court. After that no agent was necessary. From that time the case stood as though a sale had been made and the proceeds paid into the registry of the court.

Our conclusion is that damages should be allowed as follows:

For unnecessary and unusual delay in proceeding to

adjudication, 175 days, at $200,... $35,

For value of vessel,................ 30,

---

To which add interest, at the rate of 6 per cent. per annum, from the time of the order of restitution, June 20, 1863, until the decree.

The decree of the district court is reversed, and the cause remanded with instructions to enter another decree in accordance with this opinion.


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Page:Observations on Man 1834.djvu/93

 place of the stimulus. The manner in which this is effected, I conceive to be as follows:—The repeated or continued action of the stimulus diffuses vibrations from the place of its action over the whole membrane, which, by their reciprocal influences, become equal, or nearly so, in every part of it, and are, at last, so exalted, as to contract every part. As soon as this contraction takes place, the vibrations in its small particles must cease, for reasons given above. They will therefore be propagated almost instantaneously over the neighbouring muscles, from the nervous communications between the membrane and the neighbouring muscles; by which all changes made in the nerves of the membrane must affect those of the neighbouring muscles. As therefore during the vivid vibrations of the particles of the membrane, we must suppose some to be propagated into the neighbouring muscles, agreeably to the first article of this proposition, so upon their sudden cessation, such a change may reasonably be supposed, in the communicating nervous fibrils, as shall agitate the æther contained in them with much more vivid vibrations than before; and these vibrations must now pass into the muscles alone, since the contraction of the membrane hinders them from returning into it. I shall hereafter produce several examples of this process, in detail. It may suffice, at present, just to mention the action of sneezing, and to desire the reader to compare this action, in a cursory way, with the foregoing account.

Fifthly, I have, in the last article, shewn how a cessation of vibrations in the particles of a membrane may increase those in the neighbouring muscles. But it seems also, that a cessation of vibrations in any other considerable part of the body, from whatever cause it proceeds, has a like tendency; and that this tendency is deducible from the change made in the nerves of the part affected, and thence propagated into the communicating branches, or even into the whole medullary substance. The yawnings and stretchings of persons disposed to sleep, the convulsive respiration of those that are just fallen asleep, and the convulsive motions which attend the extinction of the senses in epileptic fits, and the near approaches of death, may be derived, perhaps, in part, from this source, in part from some of the foregoing.

particular detail of this obscure and intricate matter will be attempted in the proper places of the next chapter, which will contain the application of the general positions concerning sensation and motion, in this, to each of the most remarkable phænomena, considered separately. I will, however, present the reader here with a short sketch, to enable him to form some notion of the manner and plausibility of the attempt.

title: Page:Observations on Man 1834.djvu/93


text: Talk:United States v. The Nuestra Senora De Regla/Opinion of the Court


text:
Page:Observations on Man 1834.djvu/94

 The ordinary motions of the heart appear to arise from the second and third classes of motory vibrations, mentioned in the last proposition; and it is remarkable, that its motions are found to be, in general, and cæteris paribus, stronger or weaker, as the sum total of these two classes is greater or less. The systole and diastole succeed each other, from the causes assigned in the seventeenth proposition. We are to conceive, however, that both the influx of the venal blood into the ventricles, and of the arterial into the coronary vessels, have a considerable share in bringing on the systole, in the way of distention and irritation.

May we not conjecture, from that experiment of Dr. Hook’s, in which he kept a dog alive, by a mere continued stream of fresh air passing through the lungs, without any such alternate motion of the chest as takes place in common respiration, that one principal use of the air, which is an electric per se, in respiration, is to restore to the blood, as it passes through the lungs, that electricity which it has lost in circulating through the body? For, upon this supposition, the blood which arrives at the left ventricle, will, in cessations of respiration, and also where foul air is respired, want its due electricity; whence, according to Prop. XVI. the muscles, and especially the heart, will want one of the principal requisites for contraction. However, convulsive motions may ensue after a syncope, from the fifth class of motory vibrations.

It is remarkable here, that the hearts of frogs, vipers, and several other such animals, as can live in great degrees of cold, and without respiration, continue to beat, as has been taken notice of above, for a long time after they are taken out of their bodies. We must therefore suppose, that the fibres of their hearts, and the blood globules which remain in them, are endued with an electric, or other attractive virtue, of a more durable kind than the fibres and blood globules of the more perfect animals; also, that this virtue may be put into action by a less degree of heat. All which is very agreeable to the other circumstances of their economy.

Respiration and crying are excited in the new-born child from the cold handling of the midwife, and other vivid sensations impressed immediately upon its coming into the world. These vivid sensations put the whole system of muscles, or at least those of the trunk and larynx, into action at once, as far as their mutual antagonism will permit, the stronger set of conspiring muscles overpowering the weaker for a certain short time, and then, after their force is exhausted, according to Prop. XVII. giving way for a shorter time to the weaker. But this alternate action of the muscles of the trunk and larynx will be an imperfect kind of respiration, with crying, as may be easily seen from the disposition of the muscles. Respiration is afterwards kept up, partly by the propensity of the muscles to alternate action, explained Prop. XVII.; partly, perhaps, by the power of habit, i.e. association;

title: Page:Observations on Man 1834.djvu/94


text:
Crossley v. City of New Orleans

H. C. Miller, for plaintiff in error.

B. B. Forman, for defendant in error.

WAITE, C. J.

title: Crossley v. City of New Orleans


text: Talk:Crossley v. City of New Orleans

title: Talk:Crossley v. City of New Orleans


text:
Crossley v. City of New Orleans/Opinion of the Court

The record shows that the defendants in error sought to enjoin the collection of a judgment against their property to enforce an assessment under the drainage laws of Louisiana, (1) because under the operation of the laws authorizing the judgment nothing more remained to be paid thereon; and (2) because the judgment had, in terms, been released and discharged by certain acts of the general assembly of the state, passed in 1877 and 1878. If the case was decided below on the first of these grounds no federal question is involved.

It was settled long ago that, in cases coming to this court from the supreme court of Louisiana, the opinion of the court below, as set out in the record, may be referred to, if necessary, to determine whether the judgment is one we have authority to review. Armstrong v. Treasurer of Knox Co. 16 Pet. 285; Almonster v. Kenton, 9 How. 9; ''Grand Gulf R. R. & Bkg. Co. v. Marshall'', 12 How. 167; Cousin v. Blanc, 19 How. 207; Murdock v. Memphis, 20 Wall. 633. From the statement of the case and the opinion found in this record, it is manifest the decision was placed entirely on the ground that the judgment was not collectible under the law as it stood before the acts of 1876 and 1877 were passed. Consequently the case was disposed of before the federal question presented by the pleadings was reached, and that question was not and need not have been decided.

Under these circumstances we have no jurisdiction, and the motion to dismiss is granted.


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Page:Observations on Man 1834.djvu/95

 partly by the renewal of vivid impressions; and partly, as it seems, by vibrations excited in the pleura and peritonæum, and thence communicated to the diaphragm, and to the muscles of the breast and belly.

That the last cause has a real efficacy, may appear from the following instance:—Let respiration be supposed to be at a stand for a small time, on account of the person’s running, or exerting an act of great strength. It is evident, that the blood will both be accumulated in the lungs, and heated there, during this interruption of respiration, since respiration both ventilates the blood, and promotes its motion through the lungs. The external membrane of the lungs will therefore be both distended and heated, i.e. will have an increase of vibrations communicated to it. But this membrane is continuous to the pleura, and, indeed, is the same membrane with it. An increase of vibrations will therefore be communicated to the pleura, and consequently to the diaphragm, and muscles of the breast, which it invests.

The peristaltic motion of the intestines is, in part, to be deduced from the second and third classes of motory vibrations, in the same manner as the motion of the heart, since that motion, like this, returns at intervals incessantly. And there is reason to believe, that vigorous vibrations, either of the sensory or ideal kind, impart an extraordinary degree of activity to the stomach and bowels. However, they derive also a great part of their motions, probably the major part, from the impressions which the aliment, bile, and fæces, make upon the villous coat; the vibrations excited by these impressions both running directly into the muscular coat, for the purpose of contracting that part which adjoins to the seat of impression, and also running upwards and downwards along the villous coat, so as to exert some efficacy at a distance from this seat.

It is very remarkable, that the pale fibres of the intestines, in men, and many other animals, preserve their power of alternate contraction and relaxation for a considerable time after death, whereas the red fleshy muscles of the same animals lose theirs soon after the effusion of their blood. It is a phænomenon of a like kind with this, that the whole muscular system of some animals that are exanguious, or nearly so, retain their activity for a considerable time after these animals are cut into pieces. And both may serve to intimate that the electricity, or other attractive virtue, of pale fibres and fluids, at the same time that it is feebler than that of red ones, is however, of a more durable kind, and, as was observed above of the hearts of frogs and vipers, capable of being put into action by a less degree of heat.

The actions of sneezing, swallowing, coughing, hiccoughing, vomiting, and expelling the fæces and urine, with others of a like nature, are to be deduced from the first and fourth classes of motory vibrations; i.e. either from those vibrations which first ascend up the sensory nerves, and then are detached down the

title: Page:Observations on Man 1834.djvu/95


text: Talk:Crossley v. City of New Orleans/Opinion of the Court


text:
Page:Observations on Man 1834.djvu/96

 motory nerves, which communicate with these by some common trunk, plexus, or ganglion, or else from those vibrations that run along the surfaces of uniform membranes, and so affect all the muscles which lie contiguous to any part of these membranes. It is a strong argument in favour of the hypothesis here delivered, that all the above-mentioned motions arise in the neighbourhood of vivid sensations, increase when they increase, and languish when they languish.

In examining this hypothesis by the actions of sneezing, swallowing, and coughing, regard must be had to the nose, uvula, and epiglottis, respectively, as being extreme and pointed parts, and consequently liable to be affected with extraordinary vibrations, agreeably to the ninth phænomenon of the sixth proposition.

In like manner, the numerous plexuses and ganglions of the eight pair of nerves and intercostal nerve must have great influence in the motions and functions of the parts contained in the thorax and belly.

As the motory vibrations of the second and third classes are of a gentle kind, for the most part, and descend constantly into the whole system of the muscles, it may be expected, that young children should move all their limbs at times, with some irregular kind of succession, from this cause. And this seems to be the fact. Strong contractions of the limbs are often excited by frictions, gripes, and other vivid sensations; but then the motory vibrations here are those of the first and fourth classes. General convulsions, from acidities, and other irritations in the bowels, seem to be excited in the same way, the intercostal nerve serving to communicate the vibrations with more readiness to the muscles of the trunk and limbs.

It appears to me also, that the intercostal nerve, which makes those of each side a separate system, as it were, has some share in determining hemiplegias to one side. In like manner, the great brachial and crural ganglions make all the nerves of the same limb sympathize with one another.

Whether the nerves of the same names throughout the body have not some sympathetic influences over each other, may be doubted. If those of the right side arise from the left part of the brain, and vice versâ, which seems to be the opinion of the best anatomists, then one would imagine, that the homonymous nerves of the right and left sides must, in crossing over, lie somewhere contiguous to each other, and so impart vibrations to each other. And there seem to be some facts from whence this may be inferred; but we cannot expect to be able to distinguish, with certainty, so feeble an influence, amidst so many others that are far stronger.

Yawning and stretching may, perhaps, when considered in all their circumstances, take in all the five classes of motory vibrations. When they happen in the attacks of fever-fits, and other

title: Page:Observations on Man 1834.djvu/96


text:
Merritt v. Stephani

This is a suit to recover back duties exacted by the plaintiff in error, as collector of the port of New York, on glass bottles imported in June, 1879, from Antwerp. The bottles contained natural mineral water. The collector charged on the bottles a duty of 30 per cent. ad valorem, under this provision of Schedule B of section 2504 of the Revised Statutes: 'Glass bottles or jars filled with articles not otherwise provided for, 30 per centum ad valorem.' The collector charged no duty on the water, as being free under this clause of section 2505: 'The importation of the following articles shall be exempt from duty: * * * Mineral waters, all, not artificial.' At the trial, it was proved on behalf of the plaintiffs that mineral waters are and have always been generally imported into this country in glass bottles, although sometimes contained in stone bottles or jugs, but that the glass bottle is the usual form and kind of package for natural mineral waters. The circuit court directed a verdict for the plaintiffs, and after a judgment for them the collector sued out this writ of error.

''Sol. Gen. Phillips'', for plaintiff in error.

Edward Hanley and Walter H. Coleman, for defendant in error.

BLATCHFORD, J.

title: Merritt v. Stephani


text: Talk:Merritt v. Stephani

title: Talk:Merritt v. Stephani


text:
Page:Observations on Man 1834.djvu/97

 morbid cases, the first seems to be owing to pretty sudden and strong contractions in the membrane of the mouth, fauces, aspera arteria, and œsophagus; the last to contractions in the whole skin.

As the bowels derive their peristaltic motion, in part, from the second and third classes; so it seems that the secretory and excretory vessels of the glands must be constantly agitated with a like motion, from the same causes, performing their ordinary secretions and excretions thereby. Their extraordinary ones are generally owing to irritations in the membranes, in which the mouths of their excretory vessels lie. And this agrees remarkably with the doctrine of vibrations. For the vivid vibrations excited in the membranes by the irritating cause must diffuse themselves every way; and when they come to the mouths of the excretory vessels, penetrate them, and, by passing up into the vessels, both excretory and secretory, greatly increase their peristaltic motion, and, by consequence, their secretions and excretions. All this seems equally to hold, in respect of the exhaling and absorbing vessels dispersed throughout the body.

The external motions of the eyes in young children are probably owing, in part at least, to the immediate action of light upon the tendinous expansions of the four strait muscles, and particularly upon those of the adducens and abducens. But the light which passes through the pupil seems also to have some share, as will be shewn hereafter. As to the internal motions, it appears, that the light which falls upon the cornea and uvea must excite the greater and lesser rings to contraction, in proportion to its strength; and, consequently, prepare the eye to see distinctly, at different distances, in the manner explained by Dr. Jurin. The hypothesis of this proposition does therefore give and receive light from his ingenious theory of this matter.

The two muscles which relax the membrana tympani, are much more exposed to the air than the musculus internus, or the musculus stapedis. When therefore the air is agitated with strong vibrations, as in loud sounds, it will excite the first-named muscles to action, and consequently relax the membrana tympani, as it ought to do. For what reasons the last-named muscles are contracted in feeble sounds, is a question of a more difficult nature, as is the parallel one in the eye, viz. why the radiated fibres of the uvea are contracted in small degrees of light, so as then to dilate the pupil.

The reader is desired to take notice, that, in all the instances of this proposition, I consider the motions as merely automatic. Their voluntary and semi-voluntary state will be accounted for in the two next propositions.

title: Page:Observations on Man 1834.djvu/97


text:
Merritt v. Stephani/Opinion of the Court

In the opinion of this court delivered at this term in Schmidt v. Badger, [1 SUP. CT. REP. 530,] the foregoing provision as to a duty on 'glass bottles or jars filled with articles not otherwise provided for,' was under consideration. It was held that the duty of 30 per cent. ad valorem was not a duty on the articles contained in the bottles and on the bottles also, and was not a duty on the contents of the bottles, but was a duty merely on the bottles, leaving the articles imported in the bottles to be subject to such duty, if any, as was elsewhere imposed on them. If the contents were ale or beer, the duty on the ale or beer was 35 cents per gallon, and the duty on the bottles was 30 per cent. ad valorem. If the contents were natural mineral water, or mineral water not artificial, the water was free and the duty on the bottles was 30 per cent. ad valorem. The duty on the bottle was independent of the duty on its contents, and was chargeable even though the contents were free. The statute does contain any provision that the bottle shall be free when its contents are free, while it does contain a distinct provision that there shall be a duty of 30 per cent. ad valorem on bottles, not otherwise provided for, filled with articles. The mineral water, not artificial, is free. By Schedule M of section 2504, artificial mineral water is made dutiable thus: 'For each bottle or jug containing not more than one quart, three cents, and, in addition thereto, 25 per centum ad valorem; containing more than one quart, three cents for each additional quart, or fractional part thereof, and, in addition thereto, 25 per centum ad valorem.' Thus, as to artificial mineral water, the water and the bottles containing it are both charged with duty, while as to natural mineral water it is free, and the bottles containing it are dutiable.

By section 13 of the act of June 30, 1864, (13 St. at Large,) 214, the provision as to a duty 'on mineral or medicinal waters, or waters from springs impregnated with minerals,' was as follows: 'For each bottle or jug containing not more than one quart, three cents, and, in addition thereto, 25 per centum ad valorem; containing more than one quart, three cents for each additional quart, or fractional part thereof, and, in addition thereto, 25 per centum ad valorem.'

By section 5 of the act of June 6, 1872, (17 St. at Large, 236,) mineral waters, not artificial, were made free on and after August 1, 1872. The act of 1872 (section 46) repealed all prior inconsistent provisions. From this it is argued that after the act of 1864 was passed, prior provisions, which might have embraced mineral water bottles, were annulled, and that, as the act of 1872 repealed the provisions of the act of 1864 as to such bottles, and made mineral waters, not artificial, free, there was no law in force imposing a duty on the bottles containing such free waters. The answer to this view is that the duty imposed by the act of 1864 was a duty on the article composed of bottle and water, the specific duty and the ad valorem duty being each of them a duty on the bottle and the water considered as one article. When the water was made free, the whole provision as to a duty on the aggregated bottle and water disappeared, leaving existing applicable general provisions to apply to the bottle.

The provisions so existing after the act of 1872 took effect were those found in the acts of 1861 and 1864, and transferred into Schedule B of section 2504 of the Revised Statutes, and applied in this case. They were in force as express enactments when the importation in this case was made. Schmidt v. Badger, ubi supra.

The judgment of the circuit court is reversed, and the case is remanded to that court, with directions to grant a new trial.


text: Talk:Merritt v. Stephani/Opinion of the Court


text:
Page:Observations on Man 1834.djvu/98

proposition is the immediate consequence of admitting the doctrines of vibrations and association, in the manner in which they have been asserted in the foregoing propositions. It contains the theory of the voluntary and semi-voluntary motions; to facilitate the application of which theory in the next proposition, I shall deliver the principal cases of this, in the following corollaries.

. I. The motory vibrations of the five classes mentioned Prop. XVIII. will generate a propensity to corresponding motory vibratiuncles.

. II. These motory vibratiuncles will affect the brain, as well as the motory nerves along which they descend; and, indeed, their descent along the motory nerves will be principally owing to their being first excited in the brain. This is sufficiently evident in the motory vibratiuncles which are derived from the motory vibrations of the second and third classes. As to the motory vibrations of the other classes, it is evident, that the brain is strongly affected by the sensory vibrations which give birth to them, and consequently, that a proportional affection of the brain must take place in the motory vibratiuncles derived from them.

. III. The motory vibratiuncles will cohere to one another, by associations both synchronous and successive. Hence the simple parts, of which complex and decomplex motions are compounded, may cohere closely, and succeed readily to each other.

. IV. The motory vibratiuncles will also cohere to ideal ones by association. Common ideas may therefore excite motory vibratiuncles, and consequently be able to contract the muscles, provided the active powers lodged in their fibres and blood globules be sufficiently exalted for this purpose.

. V. If we suppose the ideal vibratiuncles to be so much increased from the causes mentioned, Prop. XIV. as to be equal in strength to the usual sensory vibrations, the motory vibratiuncles connected with them by aossciation must be supposed to be increased proportionably. Hence ideas may occasion muscular motions of the same strength with the automatic motions.

. VI. The third and last connexion of the motory vibratiuncles is that with sensory vibrations, foreign to them, i.e. such as had no share in generating the motory vibratiuncles under consideration. Particular motions of the body may therefore by association be made to depend upon sensations, with which they have no natural and original connexion.

. VII. As muscular motion has three connexions deducible

title: Page:Observations on Man 1834.djvu/98


text:
Merritt v. Park

''Sol. Gen. Phillips'', for plaintiff in error.

Edward Hartley and Walter H. Coleman, for defendant in error.

BLATCHFORD, J.

title: Merritt v. Park


text:
Page:Observations on Man 1834.djvu/99

 from association, viz. those mentioned in the third, fourth, and sixth corollaries, so the sensations and ideas have the same three connexions. Hence the whole doctrine of association may be comprised in the following theorem, viz.

If any sensation A, idea B, or muscular motion C, be associated for a sufficient number of times with any other sensation D, idea E, or muscular motion F, it will, at last, excite d, the simple idea belonging to the sensation D, the very idea E, or the very muscular motion F.

The reader will observe, that association cannot excite the real sensation D, because the impression of the sensible object is necessary for this purpose. However, in certain morbid cases, the idea is magnified so as to equal, or even overpower, sensible impressions.

order to verify this proposition, it is necessary to inquire, what connexions each automatic motion has gained by association with other motions, with ideas, or with foreign sensations, according to the third, fourth, and sixth corollaries of the last proposition, so as to depend upon them, i.e. so as to be excited no longer, in the automatic manner described in the nineteenth proposition, but merely by the previous introduction of the associated motion, idea, or sensation. If it follow that idea, or state of mind (i.e. set of compound vibratiuncles), which we term the will, directly, and without our perceiving the intervention of any other idea, or of any sensation or motion, it may be called voluntary, in the highest sense of this word. If the intervention of other ideas, or of sensations and motions (all which we are to suppose to follow the will directly), be necessary, it is imperfectly voluntary; yet still it will be called voluntary, in the language of mankind, if it follow certainly and readily upon the intervention of a single sensation, idea, or motion, excited by the power of the will: but if more than one of these be required, or if the motion do not follow with certainty and facility, it is to be esteemed less and less voluntary, semi-voluntary, or scarce voluntary at all, agreeably to the circumstances. Now, if it be found, upon a careful and impartial inquiry, that the motions which occur every day in common life, and which follow the idea called the will, immediately or mediately, perfectly or imperfectly, do this, in proportion to the number and degree of strength in the associations, this will be sufficient authority for ascribing all which we call voluntary in actions to association, agreeably to the purport of this proposition. And this, I think, may be verified from facts, as far as it is reasonable to expect, in a subject of inquiry so novel and intricate.

title: Page:Observations on Man 1834.djvu/99


text: Talk:Merritt v. Park

title: Talk:Merritt v. Park


text:
Merritt v. Park/Opinion of the Court

This is a suit to recover back duties exacted by the plaintiff in error, as collector of the port of New York, on glass bottles imported in March, 1879, from London. The bottles contained beer, and the defendant exacted a specific duty of 35 cents a gallon on the beer and also a duty of 30 per cent. ad valorem on the bottles. The bottles were the ordinary ale bottles of commerce. The circuit court directed a verdict for the plaintiffs, and they had a judgment, to review which the collector brought this writ of error.

The question involved is the same, and arose under the same statutory provisions, as in the case of Schmidt v. Badger, decided by this court at this term, [1 SUP. CT. REP. 530.] It was there held that such duty on the bottles, in addition to such duty on the beer and ale contained in them, was a lawful duty. That decision governs the present case, and the judgment of the circuit court is reversed, and the case is remanded to that court, with directions to grant a new trial.

title: Merritt v. Park/Opinion of the Court


text: Talk:Merritt v. Park/Opinion of the Court


text:
City of Ottawa v. Carey

C. B. Lawrence, for plaintiff in error.

[Argument of Counsel on pages 115-117 intentionally omitted]

G. S. Eldredge and John Dean Caton, for defendant in error.

[Argument of Counsel on pages 117-118 intentionally omitted]

WAITE, C. J.

title: City of Ottawa v. Carey


text:
Page:Observations on Man 1834.djvu/100

 In the same manner as any action may be rendered voluntary, the cessation from any, or a forcible restraint upon any, may be also, viz. by proper associations with the feeble vibrations in which inactivity consists, or with the strong action of the antagonist muscles.

After the actions, which are most perfectly voluntary, have been rendered so by one set of associations, they may, by another, be made to depend upon the most diminutive sensations, ideas, and motions, such as the mind scarce regards, or is conscious of; and which therefore it can scarce recollect the moment after the action is over. Hence it follows, that association not only converts automatic actions into voluntary, but voluntary ones into automatic. For these actions, of which the mind is scarce conscious, and which follow mechanically, as it were, some precedent diminutive sensation, idea or motion, and without any effort of the mind, are rather to be ascribed to the body than the mind, i.e. are to be referred to the head of automatic motions. I shall call them automatic motions of the secondary kind, to distinguish them both from those which are originally automatic, and from the voluntary ones; and shall now give a few instances of this double transmutation of motions, viz. of automatic into voluntary, and of voluntary into automatic.

The fingers of young children bend upon almost every impression which is made upon the palm of the hand, thus performing the action of grasping in the original automatic manner. After a sufficient repetition of the motory vibrations which concur in this action, their vibratiuncles are generated, and associated strongly with other vibrations or vibratiuncles, the most common of which, I suppose, are those excited by the sight of a favourite plaything which the child uses to grasp, and hold in his hand. He ought, therefore, according to the doctrine of association, to perform and repeat the action of grasping, upon having such a plaything presented to his sight. But it is a known fact, that children do this. By pursuing the same method of reasoning, we may see how, after a sufficient repetition of the proper associations, the sound of the words grasp, take hold, &c. the sight of the nurse’s hand in a state of contraction, the idea of a hand, and particularly of the child’s own hand, in that state, and innumerable other associated circumstances, i.e. sensations, ideas, and motions, will put the child upon grasping, till, at last, that idea, or state of mind which we may call the will to grasp, is generated and sufficiently associated with the action to produce it instantaneously. It is therefore perfectly voluntary in this case; and by the innumerable repetitions of it in this perfectly voluntary state, it comes, at last, to obtain a sufficient connexion with so many diminutive sensations, ideas, and motions, as to follow them in the same manner, as originally automatic actions do the corresponding sensations, and consequently to be automatic secondarily. And in the same manner, may all the actions

title: Page:Observations on Man 1834.djvu/100


text: Talk:City of Ottawa v. Carey

title: Talk:City of Ottawa v. Carey


text:
City of Ottawa v. Carey/Opinion of the Court

This is a suit to recover upon bonds issued by the city of Ottawa, Illinois, as a donation to aid in the improvement of the water-power upon the Fox and Illinois rivers within the city, or in its immediate vicinity. Other bonds of the same issue were involved in Hackett v. Ottawa, 99 U.S. 86, and Ottawa v. ''First Nat. Bank of Portsmouth, 105 U.S. 342, where it was held, in substance, that, as there was legislative authority to issue bonds for municipal purposes, and it was recited in the bonds then sued on that they were issued for such purposes, the city was estopped from proving, as against bona fide'' holders, that the recitals were untrue. Neither Hackett nor the bank had any knowledge of the precise purposes for which the bonds were issued, and it was adjudged that they had the right to rely on what was recited. The facts on which this case rests are, in brief, these:

The city of Ottawa was incorporated as a city in Illinois on     the tenth of February, 1853, and given the ordinary powers of      municipal corporations of that class for local government. It     was specially authorized 'to provide the city with water, to      erect hydrants and pumps in the streets for the convenience      of its inhabitants,' and, upon a vote of the people, 'to      borrow money on the credit of the city, and to issue bonds      therefor, and pledge the revenue of the city for the payment      thereof.' Our attention has not been called to any other      provision of the charter as having a bearing on the questions      to be considered.

In February, 1851, the Ottawa Manufacturing Company was     incorporated by the general assembly of Illinois to build a      dam across the Fox river for the purpose of creating a      water-power to be leased and used. On the sixteenth of     February, 1865, the charter of this company was amended so as      to authorize the building of a dam across the Illinois river,      and a race to bring the water from that river into the pool      of the dam across the Fox.

On the nineteenth of February, 1867, the general assembly     passed an act purporting to constitute a board of      commissioners to subscribe $100,000 to the capital stock of      the manufacturing company for and on behalf of the city, and      to pay the subscription by an issue of the bonds of the city. No subscription was ever made under this authority, and we     understand the counsel for the defendant in error to concede      that the act itself was unconstitutional.

On the fifteenth of June, 1869, an ordinance was passed by     the city submitting to the voters, at an election to be held      on the twentieth of the same month, the question whether the      council should borrow $60,000 on the bonds of the city to be      'expended in developing the natural advantages of the city      for manufacturing purposes.' This election was held, and      resulted in a vote by a majority of the legal voters in favor      of the project. Thereupon, the city, on the thirtieth of     July, 1869, passed another ordinance, directing the mayor to issue the bonds and      deliver them to William H. W. Cushman, 'to be used by him in      developing the natural resources and surroundings of the      city,' and authorizing and directing him 'to expand the same      in the improvement of the water-power upon the Illinois and      Fox rivers, within the city and in the immediate vicinity      thereof, under the franchises and powers which have been      granted for that purpose by the legislature of the state, or      which may hereafter be granted for that purpose, in the      manner which, in his judgment, shall best secure the      practical and permanent use of said power in the city and its      immediate vicinity.'

Under this ordinance the bonds were issued and delivered to     Cushman on the second of August, 1869, as a donation to aid      the city in securing the contemplated water-power, he      agreeing in writing to cause the necessary works to be      completed in the two rivers within a reasonable time, and, if      not, to return the bonds, or a part thereof, according to the      special provisions of the contract. No arrangements were made     or contemplated for providing the city with water.

Cushman was one of the original corporators of the     manufacturing company, and a director at the time the bonds      were issued to him, and he, on the eleventh of March, 1871,      delivered them to the company 'to be used by said company for      the purpose of making the improvement hereinbefore mentioned,      without further consideration.' During the month of June,      1871, the company sold and delivered the bonds involved in      this suit to Lester H. Eames, a citizen of Ottawa, for their      face value and part of the interest which had accrued after      August, 1870. When Eames made his purchase and paid for the     bonds he knew they had been issued as a donation to aid in      the completion of the improvement contemplated in the      contract with Cushman, and was cognizant of all the      proceedings of the council in reference thereto. He also knew     of the contract with Cushman. In November, 1879, after the     bonds fell due, Eames sold them to William H. Carey, the      plaintiff below, who paid value for them, with full knowledge      of all that was known by Eames about their issue.

Upon these facts, found by the court and set forth in the record, judgment was rendered against the city and in favor of Carey for $72,814.76. To reverse that judgment this writ of error has been brought.

This case differs from those of Hackett and the ''First Nat. Bank of Portsmouth, supra, in that Carey cannot claim protection as a bona fide'' holder, while Hackett and the bank could. Neither Carey, nor Eames, nor the manufacturing company, nor Cushman were purchasers without notice. Carey and Eames both paid value, but Carey bought after maturity, and it is expressly found that both he and Eames had actual knowledge of the purposes for which the bonds were issued and of the contract with Cushman. Under the circumstances of this case the manufacturing company is chargeable with knowledge of all the facts known to Cushman, one of its directors and the original contractor with the city. The questions then to be considered are such as may arise between the city and a purchaser for value from Cushman with full knowledge of all the facts affecting the validity of the bonds at their inception.

In Illinois, under the constitution of the state, the corporate authorities of cities cannot be invested with power to levy and collect taxes except for corporate purposes. This has long been settled. Weightman v. Clark, 103 U.S. 259, and numerous Illinois cases there cited. What may be made a corporate purpose is not always easy to decide, but it has never been supposed that if legislative authority had not been granted to a municipal corporation to do a particular thing, that thing could be a purpose of that corporation.

Municipal corporations are created to aid the state government in the regulation and administration of local affairs. They have only such powers of government as are expressly granted them, or such as are necessary to carry into effect those that are granted. No powers can be implied except such as are essential to the objects and purposes of the corporation as created and established. 1 Dill. Mun. Corp. § 89, (3d Ed.) and cases there cited. To the extent of their authority they can bind the people and the property subject to their regulation and governmental control by what they do, but beyond their corporate powers their acts are of no effect.

It is not claimed that express authority was given the city of Ottawa to develop, or aid in developing, the natural advantages of its rivers for manufacturing purposes, and what we are now called on to decide is not whether, if such a power had been given, it would be within the general scope of the purposes of a city government, and thus a corporate purpose, within the meaning of that term as used in the constitution, but whether it has been granted by the legislature. Much is said by the supreme court of Illinois in Taylor v. Thompson, 42 Ill. 11; Chicago, D. & V. R. Co. v. Smith, 62 Ill. 268; People v. Depuyt, 71 Ill. 655; Burr v. City of Carbondale, 76 Ill. 455; People v. Trustees of Schools, 78 Ill. 137; Quincy, M. & P. R. Co. v. Morris, 84 Ill. 410; Hensley v. People, Id. 544, and other cases of like character, as to what may be made a corporate purpose, but these were all cases in which the legislative department of the government had undertaken to grant a power, and the question was whether the power was one that could rightfully be made a purpose of a municipal corporation. No matter how much authority there may be in the legislature to grant a particular power, if the grant has not been made the city cannot act under it.

As power in a municipal corporation to borrow money and issue bonds therefor implies power to levy a tax for the payment of the obligation that is incurred, unless the contrary clearly appears, (Ralls Co. v. U.S. 105 U.S. 733,) it follows that the power contained in the charter to borrow money did not authorize the issue of the bonds in this case, unless they were issued for a corporate purpose, there being a constitutional prohibition against taxation by the city, except for corporate purposes. The question, then, is whether the city has been invested with power to raise money by public taxation to be donated to private persons or private corporations as a bonus for developing the water-power in the city or its vicinity for manufacturing purposes.

The charter confers all the powers usually granted to a city for the purposes of local government, but that has never been supposed of itself to authorize taxes for everything which, in the opinion of the city authorities, would 'promote the general prosperity and welfare of the municipality.' Undoubtedly, the development of the water-power in the rivers that traverse the city would add to the commerce and wealth of the citizens, but certainly power to govern the city does not imply power to expend the public money to make the water in the rivers available for manufacturing purposes. It is because railroads are supposed to add to the general prosperity that municipalities are given power to aid in their construction by subscriptions to capital stock or donations to the corporation engaged in their construction, but in all the vast numbers of cases involving such subscriptions and donations that have come before this court for adjudication since Com'rs of Knox Co. v. Aspinwall, decided 25 years ago, and reported in 21 How. 539, it has never been supposed that the power to govern of itself implied power to make such subscriptions or such donations. On the contrary, it has been over and over again held, and as often as the question was presented, that unless the specific power was granted, all such subscriptions and all such donations, as well as the corporate bonds issued for their payment, were absolutely void, even as against bona fide holders of the bonds. Thompson v. Lee Co. 3 Wall. 330; Marsh v. Fulton Co. 10 Wall. 676; St. Joseph's Township v. Rogers, 16 Wall. 659; McClure v. Township of Osgood, 94 U.S. 432; Wells v. Sup'rs, 102 U.S. 630; Allen v. Louisiana, 103 U.S. 86.

In the present case there is nothing whatever to indicate any special authority in this city to pay a bonus for the work that was to be done. It did have power to provide the city with water, but there is nowhere anything looking to such a purpose in this transaction. The object here was to bring the water into use as power, to be leased or sold at reasonable rates. An attempt was made by the legislature to authorize a subscription to the stock of the manufacturing company, but that was of no avail, because in the form adopted the legislation was confessedly unconstitutional. The charter, therefore, stands the same as though no such attempt had been made, and what was done did not create a corporate purpose to effect an improvement of the power. But even if there had been power to subscribe to the stock, it would not follow there was power to make a donation by way of a bonus to the company to aid in the improvement. In Chicago, D. & V. R. Co. v. Smith, supra, it was indeed said that the distinction between a donation to aid a company and a subscription to its stock 'was more apparent than real,' but that was said in reference to the question of making subscriptions and donations for corporate purposes, and not with reference to the effect of a power to subscribe as conferring a power to donate. In no case to which our attention has been called has it been held that a power to subscribe stock would of itself authorize a donation.

The case of Hickling v. Wilson, decided by the supreme court of Illinois in June of last year, and reported in 104 Ill. 54, is relied upon in support of this judgment. That was a suit by a creditor of the manufacturing company against the stockholders to collect his debt. The city was not a party, and its liability was in no way involved. In the opinion, as published in the official report of the case, it was not even assumed that there was corporate power to issue the bonds.

The present case was submitted at the last term, and at a former day in this term a decision was announced reversing the judgment, but in the opinion reasons were assigned for the reversal different from those now given. * * That judgment was afterwards, upon application for a rehearing, set aside and a reargument ordered. Upon further consideration of the whole case, we prefer to rest the decision on the ground that as between Cushman and the city the bonds in question were illegal and void, and as the present holder occupies no better position than Cushman, he and all those under whom he claims having bought with full knowledge of all the facts, the judgment should have been in favor of the city.

The judgment of the circuit court is consequently again reversed and the cause remanded, with instructions to enter another judgment in favor of the city on the facts found.


text: Talk:City of Ottawa v. Carey/Opinion of the Court


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Page:Observations on Man 1834.djvu/101

 performed with the hands be explained, all those that are very familiar in life passing from the original automatic state through the several degrees of voluntariness till they become perfectly voluntary, and then repassing through the same degrees in an inverted order, till they become secondarily automatic on many occasions, though still perfectly voluntary on some, viz. whensoever an express act of the will is exerted.

I will, in the next place, give a short account of the manner in which we learn to speak, as it may be deduced from the foregoing proposition. The new-born child is not able to produce a sound at all, unless the muscles of the trunk and larynx be stimulated thereto by the impression of pain on some part of the body. As the child advances in age, the frequent returns of this action facilitate it; so that it recurs from less and less pains, from pleasures, from mere sensations, and lastly from slight associated circumstances, in the manner already explained. About the same time that this process is thus far advanced, the muscles of speech act occasionally, in various combinations, according to the associations of the motory vibratiuncles with each other. Suppose now the muscles of speech to act in these combinations at the same time that sound is produced from some agreeable impression, a mere sensation, or a slight associated cause, which must be supposed to be often the case, since it is so observable, that young children, when in a state of health and pleasure, exert a variety of actions at the same time. It is evident, that an articulate sound, or one approaching thereto, will sometimes be produced by this conjoint action of the muscles of the trunk, larynx, tongue, and lips; and that both these articulate sounds, and inarticulate ones, will often recur, from the recurrence of the same accidental causes. After they have recurred a sufficient number of times, the impression, which these sounds, articulate and inarticulate, make upon the ear, will become an associated circumstance (for the child always hears himself speak, at the same time that he exerts the action) sufficient to produce a repetition of them. And thus it is, that children repeat the same sounds over and over again, for many successions, the impression of the last sound upon the ear exciting a fresh one, and so on, till the organs be tired. It follows, therefore, that if any of the attendants make any of the sounds familiar to the child, he will be excited from this impression, considered as an associated circumstance, to return it. But the attendants make articulate sounds chiefly; there will therefore be a considerable balance in favour of such, and that of a growing nature: so that the child’s articulate sounds will be more and more frequent every day—his inarticulate ones grow into disuse. Suppose now, that he compounds these simple articulate sounds, making complex ones, which approach to familiar words at some times, at others such as are quite foreign to the words of his native language, and that the first get an ever-growing balance in

title: Page:Observations on Man 1834.djvu/101


text:
Arthur v. Fox

''Sol. Gen. Phillips'', for plaintiff in error.

E. B. Smith and S. G. Clarke, for defendants in error.

WAITE, C. J.

title: Arthur v. Fox


text:
Page:Observations on Man 1834.djvu/102

 their favour, from the cause just now taken notice of; also, that they are associated with visible objects, actions, &c. and it will be easily seen, that the young child ought, from the nature of association, to learn to speak much in the same manner as he is found in fact to do. Speech will also become a perfectly voluntary action, i.e. the child will be able to utter any word or sentence proposed to him by others, or by himself, from a mere exertion of the will, as much as to grasp: only here the introductory circumstance, viz. the impression of the sound on the ear, the idea of this sound, or the preceding motion in pronouncing the preceding word is evident; and therefore makes it probable, that the same thing takes place in other cases. In like manner, speech, after it has been voluntary for a due time, will become secondarily automatic, i.e. will follow associated circumstances, without any express exertion of the will.

From the account here given of the actions of handling and speaking, we may understand in what manner the first rudiments are laid of that faculty of imitation, which is so observable in young children. They see the actions of their own hands, and hear themselves pronounce. Hence the impressions made by themselves on their own eyes and ears become associated circumstances, and consequently must, in due time, excite to the repetition of the actions. Hence like impressions made on their eyes and ears by others will have the same effect; or, in other words, they will learn to imitate the actions which they see, and the sounds which they hear.

In the same manner may be explained the evident powers which the will has over the actions of swallowing, breathing, coughing, and expelling the urine and fæces, as well as the feeble and imperfect ones over sneezing, hiccoughing, and vomiting. As to the motion of the heart, and peristaltic motion of the bowels, since they are constant, they must be equally associated with every thing, i.e. peculiarly so with nothing, a few extraordinary cases excepted. They will therefore continue to move solely in the original automatic manner, during the whole course of our lives. However, association may, perhaps, have some share in keeping these motions, and that of respiration, up for a time, when the usual automatic causes are deficient in any measure; and may thus contribute to their equability and constancy. It seems certain, at least, that where unequable and irregular motions of the heart and bowels are generated, and made to recur for a sufficient number of times, from their peculiar causes, in full quantity, a less degree of the same causes, or even an associated circumstance, will suffice to introduce them afterwards. And the same thing may be observed of hysteric and epileptic fits. These recur from less and less causes perpetually, in the same manner, and for the same reasons, as original automatic motions are converted into voluntary ones.

I will add one instance more of the transition of voluntary

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text: Talk:Arthur v. Fox

title: Talk:Arthur v. Fox