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379 affirmative, and sixteen men from the boat came on board, joined the company, and proceeded to secure the hatches. They did not slip the anchor, but weighed it leisurely, and so put to sea without disorder, though there were several ships lying around.

The captain awoke, roused by the motion of the vessel and the noise of working the tackle, and rang his bell. Thereupon Avery and two others went to him. He, half asleep, shouted out, "What is the matter?" To which Avery replied coolly, "Nothing." The captain retorted, "Something is the matter. Does she drive? What is the weather?" "No, no," said Avery, "we are at sea with a fair wind." "At sea!" exclaimed Captain Gibson, "how can that be?" "Don't be alarmed," said Avery; "put on your clothes, and I'll let you into a secret. You must know that now I am captain of the ship, and that henceforth this is my cabin, so please to walk out of it. I am bound for Madagascar to seek my fortune, and that of the brave fellows who have joined with me."

The captain was now thoroughly roused, and in a great fright. Avery bade him not fear. If he chose to throw in his lot with them, he would be received, but must remain sober and mind his own business, and if he conducted himself properly would be made lieutenant. If he refused he might have the long-boat and go ashore in it. The captain preferred the latter alternative; he was accordingly put into the boat along with such seamen, five or six in all, who would not throw in their lot with the mutineers. The two ships proceeded to Madagascar, and came across a couple of sloops at anchor on the north-east of the island. These were manned by mutineers as well, and both parties speedily came to an agreement to hunt together, and they now sailed for India. Off the mouth of the


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 fomented a mutiny in Gertruydenburg, his relations with the States-General, with Maurice and Barneveldt, and with Sir Thomas Bodley [q. v.], the queen's envoy at The Hague, had been uniformly good. In 1595 Philip of Nassau conceived a daring scheme (to which Vere gave a reluctant assent) for surprising the Spanish force on the Rhine, near Wesel, under the nonagenarian Mondragon. But Mondragon, though ninety, was still the ablest of the Spanish generals after the death of Parma, and he lured the Dutch and English cavalry into a most skilfully prepared ambush, in which Vere's brother Robert lost his life by a lance-wound in the face. Sir Francis took the sad news home to his mother. On his visit to England he was specially consulted by the queen, and chosen by her to conduct the confidential negotiations with the Dutch in view of the counterstroke which it was decided to aim at Spain in a more vital part than the Netherlands.

On 1 March 1596 Vere arrived at Middelburg. He found the States-General somewhat inclined to evade his propositions, but succeeded in giving them the requisite character of urgency, and he sailed at the end of the following month with a thousand of his veterans (in Dutch pay) to join at Dover the Cadiz expedition under the joint command of Lord Howard of Effingham and Essex. Vere was lord-marshal, lieutenant-general, and one of the six members of Essex's council of war. He could not altogether escape the rivalries from which he was so happily exempt in the Low Countries, but he took the lead with an excellent steadying effect at the capture of the town of Cadiz, in which Essex himself impetuously led the stormers (21 June). The expedition, with Vere on the Rainbow, arrived safely at Plymouth, after the sack on 8 Aug., and Vere passed some of the succeeding winter at the court. He was again to serve as a sea captain in the summer of 1597 in the Islands' voyage, and we are told that he applied himself in the interval to the study of ‘sea-cases.’ He sailed in the Mary Rose, master John Winter, on 9 July 1597, and again, after putting back from stress of weather and a most severe ‘bucketing,’ on 17 Aug.; like his comrades, he had little opportunity of adding to his reputation by this injudiciously managed sea-raid. On his return he defended the conduct of his general before Elizabeth. Nevertheless the seeds of dissension seem to have been sown during the voyage between Vere and Essex, who had hitherto been staunch friends and correspondents.

In the autumn of 1597 Vere was once more in Holland, and at The Hague was in frequent intercourse with Barneveldt; it was mainly through the latter's influence in the States-General that at Vere's instance a more aggressive policy was decided upon in December against the formidable Spanish infantry. A force was accordingly secretly collected by Prince Maurice at Gertruydenburg to attack the advanced guard of the Spaniards under the Count of Varras at Turnhout. The English contingent, forming nearly a third of the little army of between five thousand and six thousand cavalry and infantry, was under the command of Vere and Sir Robert Sidney. A complete surprise was effected, and Varras had barely time to effect a retreat in the small hours of the morning of 24 Jan. 1598 before Maurice occupied the town. An immediate pursuit was counselled by Vere, who, with a small force of cavalry, succeeded in effectually cutting off the infantry of the enemy's rearguard and securing six hundred prisoners. His action was warmly applauded, and Elizabeth wrote herself to signify her ‘good liking’ of Vere's services.

In May it was decided by the English government (having regard to the rapidly increasing prosperity and burden-bearing capacity of the united provinces) that the relations between England and Holland should be revised and a new treaty negotiated on a basis which should render the war less burdensome to England. With a view to these negotiations, Vere was selected by the queen and Burghley as special envoy to the States-General, with George Gilpin [q. v.], the resident minister at The Hague, as his colleague. He was instructed on 7 June 1598 to remind the states of the sacrifices England had made on their behalf, and to point out that if the Dutch persisted in their resolution to make no peace with the Spanish monarchy, the queen would still stand by them, but on condition only of a repayment of a portion of their debt and a regular contribution towards the maintenance of the English garrisons in Holland (see Instructions in Cotton. MS. Galba D. xii. 159).

On 18 June Vere was received with his colleague at The Hague, and delivered a speech embracing the various points of his instructions, whereupon, after numerous conferences, a satisfactory settlement was arrived at—the states acknowledging a debt of 800,000l., and stipulating that they would contribute 30,000l. annually towards the cost of the English troops in the Netherlands. The new treaty was signed on 16 Aug. 1598. Twelve days before this Burghley died, but Vere was quite secure in the con-

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text: 1911 Encyclopædia Britannica/Constantia

title: 1911 Encyclopædia Britannica/Constantia


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 fidence of Sir Robert Cecil, and during the autumn he received a convincing mark of royal favour by his appointment to the governorship of the important cautionary town of Brill (De Briel) and his promotion to be general of the queen's forces in the Netherlands and of the English troops in the pay of the states. He went out to Brill to organise his new government in the early spring of 1599, being accompanied by Edward Cecil (afterwards Viscount Wimbledon) [q. v.] and by his brother Horace. He arrived to find the Dutch straining every nerve to save the island and town of Bommel, situate in the Maas between Dordrecht and Nymeguen, from a carefully concerted assault by the admiral of Aragon. Early in May the admiral captured Crèvecœur, occupied the land, and laid siege to Bommel. Early in July Vere crossed the Maas with six thousand men, and made a brilliant attack on the Spanish entrenchments, and, the vigilance of the allies being seconded by a mutiny in the camp of the enemy, the Spaniards had to beat an ignominious retreat before the close of the month.

In the summer of 1600 the States-General, upon the advice of Barneveldt, resolved to carry the war into the enemy's country by landing a powerful force on the Flemish coast and laying siege to Nieuport, a few miles south-west of Ostend. The Dutch army effected a landing in safety during the last days of June, and on 1 July arrived the news that the Archduke Albert was approaching with a large force from Ghent with a view of preventing their further advance. To Vere was entrusted the command of the allied vanguard consisting of 4,350 men, of whom sixteen hundred were English, and when it was decided to give battle in the dunes, on 2 July, he planted his vanguard in an advantageous position on two sandhills and a ridge about two miles north of Nieuport. The bulk of the cavalry was drawn up on the seashore, and the reserves under Prince Maurice about three hundred yards south of Vere's forlorn hope on the ‘East Hill.’ The battle began about 2 p.m. with a desperate struggle at push of pike between the 250 English posted on this hill and the pick of the Spanish infantry. Vere designates this portion of the fight as the ‘Bloody Morsel,’ his men being gradually overborne by overwhelming numbers. Messenger after messenger was despatched by Prince Maurice, but brought no reinforcement; the commander rode in person down into the hollow to cheer his men, and when retreat became imperative, after receiving a musket-shot in the thigh and another in the leg, he was with difficulty extricated from his dead horse. His wounds compelled his retirement from the field, but Prince Maurice at this juncture rallied the broken vanguard and advanced with his main force to the West Hill, where he made a determined stand. Furious charges by Sir Horace Vere, Ogle, Fairfax, and Sir Edward Cecil destroyed the cohesion of the Spanish tercios, and about four o'clock they broke and fled. The archduke made his escape to Bruges. Zapena and the admiral of Aragon were taken prisoners, while about a third of the Spanish army were put hors de combat. Of the sixteen hundred English, no fewer than eight hundred were either killed or wounded. Vere's wounds proved serious, but his name was in every one's mouth, and he was gladdened by a letter from the queen, to whom Prince Maurice had written attributing the victory in great measure to the judgment and valour of the English general (Sidney Papers, ii. 204; cf., True Relation of the Battell of Nieuport in Flanders … Delft, 1641; A New Ballad of the Great Overthrow .. gave to the Archduke, 1600, s. sh. fol.).

The battle of Nieuport was the most signal victory won by the Dutch patriots in the field during the war of independence, but the defence of Ostend was of even greater moment to their cause. On 5 July 1601 the Archduke Albert began the siege with twenty thousand men and fifty siege guns in position. The States-General rightly attached vital importance to the defence of this outlying post, which they consequently transferred from the hands of Vandernood to the more experienced management of Vere, to whom ample powers were confided. After a brief visit on the part of Vere to England in quest of recruits, the Dutch governor delivered up the keys to Sir Francis on 9 July 1601, and the strength of the garrison was raised from two thousand to three thousand five hundred. After the sieges of Leyden and Antwerp, perhaps no siege of the period attracted more universal attention (references to the siege of Ostend appeared in Atheists Tragedie and in other pieces of the day). The governor's first care was to strengthen the defences of the Polder or port meadow, which, though situated outside the wall, would have afforded a most dangerous base of attack for the enemy, and he next provided for the safe entry and unloading of ships from the sea bearing supplies. Shortly after he had completed these sagacious precautions he was unhappily wounded severely in the head by a stray shot, and had to leave Ostend for a few weeks. He returned on 19 Sept. to find


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380 Indus they espied a large vessel flying the Great Mogul's colours. Avery opened fire, and the sloops ran close to her, one on the bow, the other on the quarter, and boarded her. She at once struck her colours. She was a vessel of the Great Mogul, bound with a load of pilgrims for Arabia to make the annual pilgrimage to Mecca. On board were also a lady with her retinue, whom they took to be a daughter of the Mogul. The vessel was laden with treasure.

At this time much trouble and vexation to the East India Company was caused by the interlopers. The Company had obtained their charter, granting them exclusive rights to trade between India and England, and they had certain determined ports where they had their factories. But the trade was so profitable that companies of merchants and private adventurers embarked on the trade in defiance of the rights of the Company. They put into ports within the limits of the Company concessions, but to which the ships of the latter did not resort, by this means undermining and invading the rights of the Company. It was more than that, it was a direct attack on the legal exercise of the privileges of the Company. In 1695 the British Court informed Sir John Gayer and the Presidency of Surat that the expedients which had been adopted for suppressing the interlopers had failed at home and abroad by their not being excluded from foreign markets, and the Company's servants were required to obstruct their sales in foreign markets, and further to take measures against their entering the Indian ports. In 1675-6, the interlopers being disappointed in the sales of their cargoes and in the purchase of Indian produce, determined not to return to Europe without realizing gains for themselves and their employers, and they turned pirates and seized vessels belonging to the


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 his garrison still further augmented by recruits from England. The scions of distinguished families in Scotland and France, as well as from Holland and England, flocked to the place to learn the art of war under a veteran so distinguished. By some of these young ‘popinjays,’ who came to Ostend not for discipline but for diversion, Vere was considerably annoyed, and he took no pains to conceal how much he deprecated their presence. Conspicuous among this class was the Earl of Northumberland, who left the place in high dudgeon at the ‘discommodities of the place’ and the ‘little observance’ done him. The severity of Vere's discipline may have had something to do with the dwindling of the garrison, reduced by December to little more than two thousand men. A gale of wind prevented the arrival of any reinforcement, and supplies were running short. Vere realised his weakness when on 4 Dec. the archduke delivered a general assault, which was repulsed with the utmost difficulty. He managed to gain a little time by some sham negotiations with the enemy (see Extremities urging the Lord-general Sir F. Veare to offer the late Anti-parle with the Archduke Albertus, London, 1602, 4to); and happily before the month closed five men-of-war arrived from Zeeland with men and material, which they managed to disembark under a heavy fire. In January 1602 the enemy began preparing for another general assault. By this time the Spaniards had fired nearly two hundred thousand shots into the town, and scarcely a whole house was left standing. On the night of 7 Jan. they made a desperate assault upon the breaches at the north-west corner of the town, between the works called Porc-espic (ravelin) and Helmund (bastion), near which point Vere himself conducted the operations. Since the new year, however, Vere had considerably strengthened his position, and after several hours' fighting the enemy were repulsed at all points, the opening of the western sluice by Vere's orders at a critical moment of the retreat washing many of the besiegers into the sea. This triumphant defence was followed by a lull in the attack, and on 7 March Vere was withdrawn from Ostend (which held out two years and a half longer) in order to take up a command in the field. Before doing so, however, he went over to England to obtain permission from the queen to levy more recruits for service in the Netherlands. While about the court he was challenged to a duel by the Earl of Northumberland, who had felt himself personally slighted by Vere at Ostend, but he declined to meet the earl while he himself was engaged upon public service (cf. Gent. Mag. 1854, vol. i.; Addit. MS. 25247, ff. 308–11).

Returning without delay to The Hague, Vere found himself at the head of a splendid force of eight thousand Englishmen in the pay of the states. On 7 July siege was laid by Vere and Prince Maurice to the small town of Grave, near Nymeguen. There, in the following month while inspecting the trenches, Sir Francis was struck by a bullet just under the right eye. He lay in a critical condition at Ryswyk for several months. In January 1603 he was active again, and engaged upon an arduous conflict with the States-General, from whom he demanded jurisdiction over his own men, untrammelled by any interference by Dutch magistrates. The Dutch authorities seemed inclined to concede the point to their veteran commander, ‘second only to Maurice in their army;’ but on 21 March Vere was stunned by the news of the death of Queen Elizabeth, which he received through Prince Maurice at Ryswyk. He took measures to have James I proclaimed in Holland, and he was continued by the new king in the governorship of the Brill; but in 1604 James made a treaty of peace with Spain, and in the summer of that year Vere retired from the service of the states, retaining only the honorary command of his regiment of horse, and settled on his property at Tilbury Lodge, near Kirby Hall, the home of his mother and elder brother. In August 1605 he paid a last visit to The Hague, bearing letters from James I to the States-General. He took leave of his old comrade Prince Maurice and of the states in May 1606, and returned to England next month, bearing with him a substantial proof of Dutch regard in the form of a pension of 500l. annually. On 15 June 1606, upon his return to England, he was appointed governor of Portsmouth and the isle of Portsea, in succession to the Earl of Devon. Henceforth his time was passed between Portsmouth and Tilbury Lodge. On 26 Oct. 1607 he married at Mitcham a girl of sixteen, Elizabeth, daughter of John Dent (d. 1595), a citizen of London, by his second wife, Alice (Grant).

Vere spent his unwonted leisure in inditing his straightforward and soldierlike ‘Commentaries,’ or short narratives of ‘the diverse pieces of service wherein he had command.’ These notes were jotted down for private circulation only, but in 1657 they were published at Cambridge as ‘The Commentaries of Sir Francis Vere,’ in small folio, by Dr. William Dillingham [q. v.], who had accidentally lighted upon the manuscript


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 50 a person and a place—the place of the dead discomforted, and the ruler of that land, a boneless form with a long grey beard. The exploits of Quawteaht in the beginning of things were something between those of Zeus and of Prometheus. "He is the general framer—I do not say creator of all things, though some special things are excepted." Quawteaht, in the legend of the loon (who was once an injured Indian, and still wails his wrongs), is represented as conscious of the conduct of men, and as prone to avenge misdeeds. In person, Quawteaht was of short stature, with very strong hairy arms and legs. There is a touch of unconscious Darwinism in this description of "the first Indian." In Quawteaht mingle the rough draughts of a god and of an Adam, a creator and a first man. This mixture is familiar in the Zulu Unkulunkulu. Unlike Prometheus, Quawteaht did not steal the seed of fire. It was stolen by the cuttlefish, and in some legends Quawteaht was the original proprietor. Like most gods, he could assume the form of the beasts, and it was in the shape of a great whale that he discomfited his opponent Tootooch. It does not appear that Tootooch receives any worship or adoration, such as is ofiered to the sun and moon.

Leaving the Ahts for the Thlinkeets, we find Yehl, the god or hero of the introduction of the arts, who, like the Christ of the Finnish epic or Maui in New Zealand, was born by a miraculous birth. His mother was a Thlinkeet woman, whose boys had all been slain. As


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Rh native princes, and left the Company's servants exposed to suspicion and imprisonment and their property to seizure and confiscation. It was precisely at this conjuncture that Avery's little piratical fleet made its capture. The vessel, the Gunswek, was bound from Bombay for Daman. Avery cleared it of all its treasure, and only released the pilgrims on payment of a heavy indemnity, and left the ship to be steered back to Bombay by the native crew. As to the ladies on board, Avery took to himself that one whom he supposed to be the daughter of the Great Mogul, and let his crew toss up for the rest as partners.

John Bruce in his Annals of the East India Company says nothing of the retention of the ladies, nor of the capture of the Mogul's daughter. It is likely enough that some women were taken and retained, but certainly no lady of so high a rank as the grand-daughter of Aurungzebe.

This outrage produced very unpleasant effects. Already in September, 1695, an interloping vessel turned pirate, and, bearing English colours, had plundered a ship belonging to Abdul Gopher, a merchant of Surat, and the governor of the place had been obliged to set a guard on the house of the Company to prevent its being wrecked by the enraged natives, and the servants of the Company from being massacred. News now arrived that the same pirate had attacked a ship belonging to the Mogul, conveying pilgrims to Mecca. If the first injury to an individual merchant was resented, this which was deemed a sacrilege roused fanatical resentment to fury, and obliged the Governor to put the President and all the English in irons to prevent their being torn to pieces by the inhabitants.

The Governor desired French, Dutch, and English to send vessels in search of the pirate, that by her capture


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Rh that appear under the influence of temperature. Many years ago I made experiments with the seasonally dimorphic butterfly Vanessa levana-prorsa, and was able to prove that the two forms of one and the same species, while very different in colour and pattern, owe their difference to the effects of different degrees of warmth during the pupal stage: it is at least possible to convert the summer generation into the spring form by lowering the temperature. Even at that time it appeared to me doubtful whether such a total change in colour and pattern in the summer form of V. prorsa could actually depend only on the chance influence of a higher temperature, and the idea of mimicry at first crossed my mind. But now, by the united labours of many excellent observers, we know that mimicry is of a much commoner and more widespread occurrence than could formerly have been supposed, and I should now consider it possible that the summer form, V. prorsa, might have resulted from imitation of Limenitis sibylla, which flies with it in clear spaces in the woods, and to which in fact it is strikingly similar. I cannot however at present give a proof in support of this supposition, and am not even able to say whether Limenitis is to be included among protected species. The reasons which lead me to this conclusion cannot be given here in detail, and I mention the idea only as an illustration—whether real or imaginary—of how the impression might arise that a metamorphosis was due to external influences, while the influence—in this case warmth—had only to play the part of the stimulus, the real cause being a variation


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382 the fact might be ascertained as to who really was responsible. The French and Dutch hesitated to comply, and the readiness of the English to go on this service served somewhat to abate the hostility entertained against them.

Sir John Gayer, as General of the Company's affairs, wrote to the Mogul to assure him that the Company were not only ignorant of the existence of such a pirate, but were ready to employ two of their ships completely armed to convey the pilgrims to Jedda, if he would grant that all the English but the Company should be debarred from trading in his dominions. The Mogul answered "that the English, French, and Dutch must go to sea in search of the thieves, but that the embargo he had placed on all trade must continue till the innocence or guilt of the English Company was proved."

Mr. Bruce does not name John Avery as the pirate, but this must be the case spoken of in his Life. It will be noticed that the dates do not accord. The capture of the pilgrim vessel took place in the winter of 1693-4, and, according to Johnson, it was not till after the Peace of Ryswick, 10 September, 1697, that Avery made the capture, and it was in consequence of this treaty that he was able to get hold of the vessels. From the date 1693 the pilgrims were annually conveyed to Jedda by ships of the Company, so that Avery could not have captured one of them after that date. Charles Johnson must have blundered in his facts.

The sum demanded by Avery for the release of the pilgrims was three hundred thousand pounds, and he got it.

He had already established himself at Perim, and levied toll on all vessels passing in and out of the Red Sea, but after this affair, when large rewards were


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Rh offered by the Company and by the British Government for his capture, he deemed it advisable to change his quarters and establish himself in Madagascar.

As the four vessels were steering their course, he sent on board each of the sloops, desiring the captains to come to his vessel and meet in council. They did so, and he told them that he had a proposal to make. The treasure of which they were possessed would not be sufficient for all; they might be separated by bad weather, in which case the sloops, if either of them should fall in with any large armed vessels would be taken or sunk, and the treasure on board lost as well. As for himself, he and the Duchess, his consort, were strong enough to hold their own against any ship they were likely to meet on the high seas, and he proposed, therefore, that all the spoil should be put on board his ship, each chest sealed with three seals, whereof each was to keep one, and to appoint a rendezvous in case of separation. This proposal seemed reasonable and was agreed to, and the treasure was conveyed on board Avery's vessel, and the chests sealed. They kept company that day and the next, the weather being fine; and during this time Avery tampered with his men. "What should hinder us," said he, "from going to some strange country where we are not known, and living on shore all the rest of our days in plenty?" They understood his design, and all agreed to bilk their new allies in the sloops and other vessel. Accordingly they took advantage of the night, changed their course, and next morning the sloops and Duchess found themselves deserted in mid-ocean. Avery and his men resolved to make the best of their way to America, and there change their names, and purchase settlements, and spend the rest of their days at ease.

The first land they made was the island of Providence,


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384 then quite recently settled, and there they disposed of their vessel, under the pretence that the Duke had been fitted out as a privateer, but that having met with no success, Avery said that he had received orders from the owners to dispose of her to the best advantage. He soon met with a purchaser, and immediately bought a sloop. In this vessel he and his mates embarked. They touched at several ports, where no one suspected them, and some of the crew went on shore and dispersed about the country, and with the dividends given them by Avery, settled there.

At length he arrived at Boston, in New England, and there again some of the crew left to establish themselves, and no doubt founded there some of the Bostonian families now flourishing. Avery advised those who remained to sail for Ireland. He had concealed and kept for himself a great store of diamonds that had been secured in the ship of the Mogul, and which his present comrades had not known how to value. These he could not dispose of in New England, but hoped to realize in Ireland.

On their voyage they avoided St. George's Channel, and sailing north, put into one of the northern ports. There they disposed of the sloop and separated; some went to Dublin, others to Cork. Some afterwards obtained their pardon from King William.

Avery was afraid to dispose of his diamonds in Ireland, lest inquiry should be made as to how he had come by them. He therefore crossed over to England, to Bideford; and knowing of a man in Bristol who was an old acquaintance, and whom he thought he could trust, he sent to appoint a meeting in Bideford. The man came, and after consultation the friend advised that the jewels should be entrusted to certain Bristol merchants, who being men of wealth and credit, no


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Rh suspicion would be aroused if they disposed of them. No better plan could be devised, Avery consented, the merchants were communicated with and came to Bideford, where they received the diamonds, undertook to sell them and remit the money to Avery, reserving to themselves a commission; and to this he consented. He now changed his name and took up his residence at Bideford, attracting no notice, but communicating with some of his relations. After a while his money was spent, and not a word reached him from the merchants. He wrote to them, and they sent him a supply of money—not much, doled out from time to time. At last he could endure this no longer, and went to Bristol to see the merchants, who coolly told him that if he troubled them any further they would disclose to the authorities who he was; "so that our merchants were as good pirates on land as he was at sea."

Whether alarmed at their threats, or that he fancied he had been seen and recognized by some old comrades in Bristol, is not known; but he crossed into Ireland, where he remained till destitute. Then in despair he worked his way over before the mast in a trading vessel to Plymouth, and thence made his way on foot to Bideford, where a few days later he fell ill and died without so much money in his pocket as would buy him a coffin.

In the meantime, the companions in the Duchess and the two sloops when deserted by Avery, finding that they were running short of provisions, made their way to Madagascar. On their course they fell in with a privateer sloop, commanded by Captain Tew, who had just captured a large vessel bound from India to Arabia, with three hundred soldiers on board besides seamen. By this prize his men shared £3000 apiece. Tew and the crew of the Duchess and the sloops agreed together


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Dutton v. Strong

THIS case came before the Supreme Court upon a writ of error to the District Court of the United States for the district of Wisconsin. It was, in its origin, an action of trespass on the case brought by H. Norton Strong and William H. Goodnow against Achas P. Dutton and Cyrus Hines.

In 1855, Messrs. Dutton and Hines, the plaintiffs in error, owned a pier situated at Racine, upon Lake Michigan, and extending into the lake, which served the purposes both of a landing place for freight and for its stowage. This pier was private property, and although its owners, who were forwarding merchants, sometimes moored vessels, which came there upon their own business, to its timbers, it does not appear that they ever suffered anybody else to do so, or that any other person claimed the right. On the sixth of May, 1855, the ship Homer Ramsdell, owned by the defendants in error, Messrs. Strong and Goodnow, was driven by stress of weather to the neighborhood of this pier, and the captain, fearful of going ashore, made his vessel fast to it. The violence of the gale increased the pull on the hawser, by which the ship was moored, to such a degree that the piles began to give way under the strain, whereupon one of the owners of the pier warned the master to cut loose, or they would themselves set him adrift. The master did not heed this warning, and the defendants, after waiting to see if he meant to obey it, cut the hawser. The vessel, as soon as set loose, was driven upon another pier, and to prevent her utter destruction was scuttled and sunk.

The court below was requested by the defendants in error to instruct the jury that if the evidence satisfied them that it was material for the preservation of the pier to cut the vessel loose from it, the person in charge of the pier had a right to do so, as against all rights of property in the vessel, after reasonable notice given and request made and refused for the vessel to leave. This instruction the court refused to give, and charged the jury, that the pier was run out into the lake for the accommodation of commerce, and was used as private property in public business; that the vessel was liable for such damage as she was doing the pier, and that the owners of the pier were not justifiable or excusable in cutting the vessel loose, if it was material for the safety or protection of the pier. To this portion of the court's charge, and to its refusal to grant two other prayers of the defendant, not necessary to be noticed here, because not considered in this court, the defendants excepted. The verdict of the jury and the judgment of the District Court were in favor of the plaintiffs; whereupon the defendants took this writ of error.

Mr. Doolittle, of Wisconsin, for plaintiffs in error, argued that the court below erred in affirming the proposition that the owners of a private pier had no right to cut away a vessel which was fastened to it without their consent, and contended that the acts of the plaintiffs in error, being justified by law, did not subject them to any damages in an action like this.

Mr. Hibbard, of Wisconsin, for defendants in error. After the vessel had been moored to the pier under the circumstances, the plaintiff in error had no right to cast her off. The pier was an unauthorized nuisance in the lake. The commercial and legal character of the Western lakes is so fixed that those waters must be considered, commercially and legally, seas. Ordinance 1787, (1 Stat. at L. 52, N.;) Fitzhugh vs. Genesee Chief, (12 How., 443;) Moore vs. ''The Am. Trans. Co.'', (24 How., 1.)

The evidence was sufficient to permit the jury to find, as a matter of fact, that the pier was a nuisance. (3 Kent's Com., 427;) Lord Hale, (De Portibus Maris, Harg. Ed., 85;) Lord Hale, (De Jure Maris, Harg. Ed., 8, 9;) Rex vs. Lord Grosvenor, (2 Starkie, 511;) Blundell vs. Cutterall, (5 Barn. & Ald., 268, 7 Eng. C. L., 88, 108;) Rex vs. Ward, (4 Adol. & El., 384, 31 E. C. L., 92;) Reg. vs. Randall, (1 Car. & Marsh., 496, 41 E. C. L., 272;) Simpson vs. Scales, (2 Bos. & Pul., 496;) The Mayor, &c., vs. Brooke, (7 Adol. & E., 339, 53 E. C. L., 339;) Hart vs. The Mayor of Albany, (9 Wend., 571;) The People vs. Platt, (17 John., 195, 209;) The United States vs. The New Bedford Bridge Co., (1 Wood & Minot, 401, 411;) Rex vs. Caldwell, (1 Dallas, 150;) Martin vs. Waddell's Lessee, (16 Peters, 367, 421.)

This must be especially so when there is no proof that the plaintiff in error owned the soil along the shore. The presumption, besides, is, that he has no right thus to occupy, but is a mere wrong-doer.

Of course, (irrespective of the right of any one to abate a nuisance,) it cannot be claimed that the plaintiffs in error had any right in the nuisance which would permit him to cast off the vessel, thus exposing it to peril, under any circumstances. Most certainly not when the vessel was forced there by stress of weather, as the jury had a right to find she was. The Schooner Mary, (1 Gallison, 206;) Peisch vs. Ware, (4 Cranch, 347;) The Frances and Eliza, (8 Wheat., 398;) The Gertrude, (3 Story, 68.)

The plaintiff in error, by building his pier in the lake, invited, and, at least impliedly, licensed vessels, in pursuit of their business, to approach and moor to the pier. Balt. vs. Stennett, (8 T. R., 606;) Bradslee vs. French, (7 Conn. 125;) Heaney vs. Heeney, (2 Denio, 625.) This license, of necessity, included the right to use the dock according to the exigencies of the case. Necessarily, therefore, when those exigencies required that the vessel should hold to the pier after once mooring there, the plaintiffs in error had no right to revoke the license, and cast off the vessel, thus causing her injury.

Mr. Justice CLIFFORD.

title: Dutton v. Strong


text:
Page:Dictionary of National Biography volume 58.djvu/249

 Vere their own party fired upon them. The earl and his men cried ‘Treason! treason!’ and fled from the field (, p. 16; Arrivall of Edward IV, pp. 19–20).

Oxford succeeded in escaping to France, according to one account by way of Scotland, in another version through Wales (ib.;, p. 456). Early in 1473 he fitted out a small squadron at Dieppe, carrying a force variously estimated at 397 and 80 men, and, accompanied by his brothers George and Thomas and by Lord Beaumont, landed near St. Osyth in Essex on 28 May, but re-embarked on the approach of a royal force under the Earl of Essex (Paston Letters, ii. 88, 90). A few days later he was reported off Thanet, and on 30 Sept. he seized St. Michael's Mount in Cornwall (ib.;, p. 26; Itin. p. 122). Orders were sent to Henry Bodrugan of Bodrugan, ‘the chief ruler’ in those parts, to drive him out. But Bodrugan, who seems to have been a very lawless personage, allowed him to revictual the castle (ib.; Rot. Parl. vi. 139). The king in December transferred the command to John Fortescue, the sheriff of the county, with four ships and nine hundred men (exaggerated by William Worcester into eleven thousand). Despite which the siege dragged on for nearly two months longer, until Oxford, finding his men were being successfully tampered with, agreed to surrender on promise of their lives (ib. vi. 149). He was sent to the castle of Hammes, near Calais, and attainted early in 1475 (ib. vi. 145). His wife had to depend on charity and her needle until the king in 1481 granted her 100l. a year (, i. 198;, p. 250; , p. 663). After three years' confinement, Oxford ‘lyepe the wallys and wente to the dyke, and into the dyke to the chynne; to whatt entent I can nott telle; some sey, to stele away and some thynke he wolde have drownyd hymselffe’ (Paston Letters, iii. 235). Richard III was on the throne before he succeeded in escaping (by August 1484), with the help of Sir James Blount, the governor of Guines and Hammes, with whom he joined the Earl of Richmond in Paris, leaving a garrison in Hammes to hold it for Richmond (, p. 566). When Hammes was threatened from Calais, Oxford came to its relief and obtained leave for the garrison to depart with bag and baggage (, p. 200).

Landing with Henry in Wales in the summer of 1485, Oxford acted as captain-general of his army, and would naturally command its right wing at Bosworth (, p. 29). It was a successful movement of his which decided Lord Stanley to abandon his attitude of neutrality, and the continuator of the Croyland history (p. 574) eulogises him as a ‘most valiant soldier.’

Oxford had no reason to complain that Henry showed himself ungrateful. His attainder was reversed, and the hereditary chamberlainship of England restored to the family after being in other hands for close upon a century (Rot. Parl. vi. 281; Rutland Papers, p. 5). Before the end of 1485 he became a privy councillor, and was made constable of Rising Castle and of the Tower of London, high steward of the duchy of Lancaster (south of Trent), steward of the forests of Essex, and admiral of England, Ireland, and Aquitaine (, ii. 734). He helped to execute the office of high steward at Henry's coronation. Framlingham and other forfeited estates were bestowed upon him, he was made K.G. before April 1486, and the stream of lucrative offices did not cease to run in his direction (, i. 198;, p. lxxvi).

Oxford led the van of the royal army at the battle of Stoke, but Polydore Vergil must be mistaken in stating that he commanded the troops sent to Flanders in 1489 (, Collectanea, iv. 210, 214, 247). He had probably in his mind the expedition to Picardy in 1492, when Oxford commanded the van (, p. 447). Henry in his will, made a few months before, appointed Oxford one of his executors (Rot. Parl. vi. 444). In the following years he received additional posts of profit in his own county of Essex. When the Cornish rebels came up to London in June 1497 he cut off their retreat at Blackheath (, i. 111).

In the summer of 1498 Oxford entertained the king for about a week, and to this occasion is generally referred the well-known story of his incurring a heavy fine of fifteen thousand marks by collecting a large body of retainers with his badge and livery in his anxiety to receive Henry at Castle Hedingham with proper honour (, p. 211; Excerpta Historica, p. 119). But Bacon only speaks of it as a report that had come down to his day, and the amount of the fine sounds incredible.

Oxford was high steward for the trial of the Earl of Warwick in November 1499. Towards the end of the reign infirmities and private business kept him from court, but he spent some days with the king at Stratford and Greenwich in July 1508 (, p. 125). His last appearance in a public capacity was as a commissioner of array in Essex in January 1513. He died on 10 March following, and was buried in the priory at


text: Talk:Dutton v. Strong

title: Talk:Dutton v. Strong


text:
Dutton v. Strong/Opinion of the Court

This case comes before the court upon a writ of error to the District Court of the United States for the district of Wisconsin. It was an action of trespass upon the case, and was instituted in the court below, on the seventh day of July, 1856, by the present defendants. They were the owners of a certain vessel called the Homer Ramsdell, and the plaintiffs in error, who were the defendants in the original suit, were the owners and occupants of a certain bridge pier, situated at Racine, in the State of Michigan, southerly of the harbor at that place. Like other similar erections, it was connected with the land at the margin of the lake, and extended into the water, so that vessels could approach it for the purpose of taking in freight, serving both as a wharf to the navigable water of the lake, and as a place of deposit for merchandise designed for transportation by water. As stated in the bill of exceptions, the defendants were forwarding merchants, and the case shows that they had used the bridge pier for the purpose of mooring vessels coming there in the course of their business; but it does not appear that it had ever been used for that purpose by any other persons. Another bridge pier, situated south of the one owned by the defendants, had been constructed, and was occupied by other parties, and was used for the same purpose by its owners as that of the defendants. According to the transcript, the declaration contained four counts, but they were all founded upon the same transaction. Three of the counts were substantially the same, and alleged, in effect, that the plaintiffs were the owners of the vessel; that, while she was lawfully employed in navigating the waters of Lake Michigan, she had, by stress of weather and the perils of navigation, been driven alongside of a certain dock and common mooring place at Racine, commonly called a bridge pier, to which she was then and there moored and fastened by cables and lines, and that the defendants, on the seventh day of May, 1855, wrongfully cut and severed the moorings by which the vessel was fastened, and cast her loose from the pier; and that, in consequence thereof, she was driven, by the force of the wind and waves, against a certain other dock and pier there situate, and on to the shore of the lake, by reason whereof she was greatly damaged, and so injured that she sunk in the lake.

Unlike the first three counts, the fourth alleged that the defendants, at the same time and place, did, wrongfully and unlawfully, erect, and cause to be erected, a certain permanent bridge or structure on the navigable waters of Lake Michigan, whereby the vessel of the plaintiffs was wholly unable to make the harbor at Racine, or to put out into the lake, as she otherwise might and would have done; and, in consequence of the obstruction, was, by the wind and waves, driven on the shore, and against a certain dock, and greatly damaged, as alleged in the other counts of the declaration. To the whole declaration, as more fully set forth in the transcript, the defendants pleaded that they were not guilty, and on that issue the parties went to trial. None of the evidence given by the defendants is reported in the bill of exceptions; but it appears, from that introduced by the plaintiffs, that the schooner was bound from Chicago, in the State of Illinois, to Racine, in the State of Wisconsin, and that she was sailing in ballast. Assuming the testimony of the master to be correct, she left Chicago on the sixth day of May, 1855, and arrived off the harbor of Racine between twelve and one o'clock at night in perfect safety. When she was about one-fourth of a mile from the harbor, the wind suddenly changed from south to north-northeast, and blew hard. Those in charge of the vessel state that they could see but one light at the time; and, supposing it to be the light on the northern pier in the harbor to which they were bound, they headed the vessel for that light. Contrary, however, to what they supposed, there was no light on either of the harbor piers, and, in point of fact, it was a light on the bridge pier of the defendants. Heading for that light, the vessel, as she advanced, was approaching the shore, and she soon passed between the two bridge piers, already described as situated southerly of the harbor. When they got close to the light they discovered the mistake; but, instead of changing the course of the vessel, they took in sail and let go the anchor, to prevent her from going on to the beach. Whether these precautions were the best that could have been adopted, or not, they had the effect to check the speed of the vessel, and, as she ceased to make headway, she sagged over against the southern bridge pier without receiving any injury. Their next step was to get out lines on to the bridge pier of the defendants, in order to work the vessel away from the southern pier, and prevent her from pounding. Finding that the lines were insufficient, they got out the large hawser and two other lines, and finally, with the aid of six additional men, and after getting out another hawser belonging to the vessel, and purchasing a new one for the purpose, they succeeded in getting the vessel up to the bridge pier of the defendants, or near it, at four o'clock in the morning. Her bow, as the master states, was still thirty or forty feet from the pier; and he says he bought the new line and employed the additional help to heave the vessel up to the pier, which was not fully accomplished until ten o'clock in the forenoon. Seeing that the wind and sea had increased in the meantime, they then concluded to make her fast to the pier; and, accordingly, got out the chain and fastened it to a pile on the opposite side of the pier, using, for that purpose, the hawsers and lines previously got out to work the vessel up to the pier. About twelve o'clock the vessel commenced pounding, and the pile to which the chain was attached started and passed through the pier eight or ten feet, and the clear inference from the testimony is, that all the fastenings gave way, except the new line and the chain.

Another witness, examined by the plaintiff, states that when the vessel commenced pounding, the pier began to start; and he says it was two o'clock in the afternoon when the pile to which the chain was attached gave way. Although it gave way, it did not then pass entirely through the bridge pier, but lodged against other piles on which the pier was built; and, consequently, the chain would still assist in holding the vessel, unless the pile broke, or that part of the pier was carried away. At this juncture, one of the defendants came upon the pier and directed the master to get the vessel away from the pier, informing him that if he did not he would cast her adrift; to which the master replied, that he would leave, if possible; and if not, he would continue to hold on to the bridge pier. But he did not make any attempt to leave, and a person in the employment of the defendants cut the hawser. When the hawser was severed, and the strain came upon the chain, the second mate of the vessel says the rest of the piles gave way, and the vessel went over to the south bridge pier, carrying away her stanchions and bulwarks on her larboard side; and, to prevent further damage, she was scuttled, by the order of the master, and presently sunk. Such is the substance of the testimony introduced by the plaintiff, as reported in the bill of exceptions. Several prayers for instructions to the jury were presented by the defendants, but, in the view we have taken of the case, it will only become necessary to refer to the second, and to the response given thereto by the court. By the second prayer of the defendants, the court was requested to instruct the jury, that if they believed, from the evidence, that it was material for the preservation of the pier to cut the vessel loose from it, the persons in charge of the pier had a right to do so, as against all rights of property in the vessel, after reasonable notice given, and request made and refused for the vessel to leave. But the court refused to give the instruction, as requested, and charged the jury, in substance, as follows: That if the vessel was attached to the pier towards its outer end, and was in peril, the owner of the pier could not put the vessel in greater peril by cutting her loose for the safety or protection of the pier. He also told the jury that the pier was run out into the lake for the accommodation of commerce, and was used as private property in public business; that the vessel was liable for such damage as she was doing the pier; and that the owners of the pier were not justifiable or excusable for cutting the vessel loose, even if it was material for them to do so for the safety or protection of the pier, or of that part to which the vessel was attached. Under the instructions of the court, the jury returned their verdict in favor of the plaintiffs, and the defendants excepted to the instructions given, and to the refusal of the court to instruct the jury as requested.

It is insisted by the defendants, that the District Judge erred, as well in his refusal to instruct the jury as requested, as in the instructions given.

On the part of the plaintiffs, both of those propositions are controverted; and they contend, in the first place, that the bridge pier was a nuisance, because, as they insist, it was an obstruction to the public right of navigation; and secondly, they contend that the defendants had no right to cut the hawser, and cast the vessel adrift, however necessary it was for them to do so, for the safety and protection of the bridge pier, because, as they insist, the defendants, by erecting the pier in the waters of the lake, had impliedly licensed the plaintiffs, and all others navigating those waters, to come there with their vessels, and moor them to the pier; and that the license, of necessity, includes the right to use the pier, according to the exigencies of the case.

1. Unless it be true, that every landing place and bridge pier erected on the shore of navigable waters without a special authority from the legislature, is necessarily a nuisance, it is a sufficient answer to the first position of the plaintiffs to say, that there was not a particle of evidence in the case to support the theory of fact on which the proposition is based. All that appeared upon the subject in the court below was, that the bridge pier in question extended several hundred feet into the waters of the lake; but it was not even suggested that any less extension would have answered the purpose for which the pier was constructed, or that it was any greater than is usual in similar erections on that shore of the lake, or that the pier, as constructed, constituted any obstruction whatever to the public right of navigation. On the contrary, the court adopted the theory that the vessel or her owners would be liable for the damage done to the pier, and sustained the right of the plaintiffs to recover, entirely upon the ground that the peril of the vessel justified the master in refusing to leave; and that the defendants, whatever might be the consequences to the pier if the vessel remained, had no right to cut the hawser, and thereby expose her to greater danger, notwithstanding they were in the possession of the pier, and it was admitted that it was their private property. Bridge piers and landing places, as well as wharves and permanent piers, are frequently constructed by the riparian proprietor on the shores of navigable rivers, bays, and arms of the sea, as well as on the lakes; and where they conform to the regulations of the State, and do not extend below low-water mark, it has never been held that they were a nuisance, unless it appeared that they were an obstruction to the paramount right of navigation. Whether a nuisance or not is a question of fact; and where they are confined to the shore, and no positive law or regulation was violated in their erection, the presumption is that they are not an obstruction, and he who alleges the contrary must prove it. Wharves, quays, piers, and landing places, for the loading and unloading of vessels, were constructed in the navigable waters of the Atlantic States by riparian proprietors at a very early period in colonial times; and, in point of fact, the right to build such erections, subject to the limitations before mentioned, has been claimed and exercised by the owner of the adjacent land from the first settlement of the country to the present time. (Ang. on Tide Wat., p. 196.)

Our ancestors, when they immigrated here, undoubtedly brought the common law with them, as part of their inheritance; but they soon found it indispensable, in order to secure these conveniences, to sanction the appropriation of the soil between high and low-water mark to the accomplishment of these objects. Different States adopted different regulations upon the subject; and, in some, the right of the riparian proprietor rests upon immemorial local usage. No reason is perceived why the same general principle should not be applicable to the lakes, although those waters are not affected by the ebb and flow of the tide; and, consequently, the terms 'high and low-water mark' are not strictly applicable. But the lakes are not navigable, in any proper sense, at least in certain places, for a considerable distance from the margin of the water. Wherever the water of the shore, so to speak, is too shoal to be navigable, there is the same necessity for such erections as in the bays and arms of the sea; and where that necessity exists, it is difficult to see any reason for denying to the adjacent owner the right to supply it; but the right must be understood as terminating at the point of navigability, where the necessity for such erections ordinarily ceases.

2. Piers or landing places, and even wharves, may be private, or they may be in their nature public, although the property may be in an individual owner; or, in other words, the owner may have the right to the exclusive enjoyment of the structure, and to exclude all other persons from its use; or he may be under obligation to concede to others the privilege of landing their goods, or of mooring their vessels there, upon the payment of a reasonable compensation as wharfage; and whether they are the one or the other may depend, in case of dispute, upon several considerations, involving the purpose for which they were built, the uses to which they have been applied, the place where located, and the nature and character of the structure. Undoubtedly, a riparian proprietor may construct any one of these improvements for his own exclusive use and benefit; and, if not located in a harbor, or other usual resting place for vessels, and if confined within the shore of the sea or the unnavigable waters of a lake, and it had not been used by others, or held out as intended for such use, no implication would arise, in a case like the present, that the owner had consented to the mooring of the vessel to the bridge pier.

Looking at the statement of the facts, as derived from the evidence reported in the bill of exceptions, it is obvious, that every one of the foregoing conditions substantially concur in this case; and, consequently, it must be assumed that the master attached the vessel to the pier without any authority from the defendants, either express or implied. He had no business to transact with the plaintiff, and the vessel was not going to the pier for freight; so that all pretence of a license utterly fails.

That fact alone, however, under the circumstances of this case, might not perhaps be sufficient to justify or excuse the defendants for cutting the hawser. Every man is bound by law so to use his own property as not to injure the property of another; and, unless the defendants are brought within the fair operation of that rule, they cannot be justified or excused. But that rule is applicable to the plaintiffs as well as to the defendants; and he who would invoke the benefit of the rule must first comply with its requisitions.

Failing to show a license to attach the vessel to the pier, the plaintiffs set up the peril of the vessel, and insist that she had a right to remain, notwithstanding the request to leave, during its continuance; and, consequently, that the defendants cannot be justified or excused for cutting her loose.

Suppose the right to remain during the continuance of the peril, if she could have done so without danger or injury to the property of the defendants, be admitted, still the admission would not benefit the plaintiffs in this case, for the reason that they or their agent had wrongfully attached the vessel to the pier; and when it became obvious that the necessary effect of the trespass, if suffered to be continued, would be to endanger and injure, or perhaps destroy the pier, the peril of the vessel imposed no obligations upon the defendants to allow her to remain, and take the hazard that their own property would be sacrificed in the effort to save the property of wrong-doers. On the contrary, they had a clear right to interpose, and disengage the vessel from the pier to which she had been wrongfully attached, as the only means in their power to relieve their property from the impending danger. They had never consented to incur that danger, and were not in fault on account of the insufficiency of the pier to hold the vessel, because it had not been erected or designed as a mooring place for vessels in rough weather, and it was the fault of the plaintiffs or their agent that the vessel was placed in that situation.

Reference is made by the plaintiffs to the case of Heaney et al. vs. Heeney et al., (2 Den., 625,) as asserting a contrary doctrine; but, after a careful examination of the case, we think it will not bear any such construction. Recurring to the facts of the case, it will be seen that the litigation arose out of a dispute about the title of the dock before it was completed. With a view to get possession of the dock, the plaintiffs attached their vessel to it, and the defendants, who had previously had the possession, severed the fastenings and cast her loose at a time when there was no danger whatever to the dock; and it was held that, inasmuch as the occupancy of the plaintiffs was lawful, the defendants could not terminate it by setting the vessel adrift, so as to endanger her safety, until they had put the plaintiffs in fault. But the court admitted that, if the entry of the plaintiffs into the dock had been tortious, then, indeed, the defendants would have had a right to cut her loose, doing no unnecessary damage, in order to the enjoyment of their rights.

In view of the whole case, we are of the opinion that the second prayer for instruction, presented by the defendants, should have been adopted by the court, and that the instructions given to the jury in answer to their request were also erroneous.

Judgment of the District Court reversed, with costs, and the cause remanded, with directions to issue a venire facias de novo.

title: Dutton v. Strong/Opinion of the Court


text: Talk:Dutton v. Strong/Opinion of the Court


text:
United States v. Hensley

This case came up on appeal from the decree of the District Court of the United States for the northern district of California, being a private land claim, prosecuted by the appellee under the act of Congress passed March 3, 1851.

In his petition to the Board of Land Commissioners the appellee claimed confirmation of his title to a tract of land in Butte county, known by the name of Aguas Nieves, and containing six square leagues, which, he averred, had been granted to him by Governor Micheltoreno, in December, 1844. It appeared that he did, on the 25th of July, 1844, solicit Micheltoreno for a grant of the land in question. His petition was accompanied with a dese no or sketch. The Secretary of the Government (Manuel Jimeno) was ordered to give information, taking the steps he might deem necessary. Jimeno referred it to Senor John A. Sutter, captain and judge of New Helvetia, who reported, on the 2d of September, 1844, that the land solicited was unoccupied. There were many other applications of the same kind on which Sutter had also reported favorably. On the 18th of November Jimeno advised that this and all similar applications for land on the Sacramento river should be suspended until the governor could make a visit to that region. Very soon after that date the insurrection of Pico, Castro, Alvarado, and other 'Chiefs of the South,' against the authority of Micheltoreno, broke out. The American and other foreign settlers in the valley of Sacramento enlisted with great unanimity in his defence, and constituted the most efficient force he had. Hensley was among them. They were commanded by Captain Sutter. Many of them had, like Hensley, made applications for lands, and nearly all their applications were, like his, postponed until the governor could make his contemplated visit. After he had been compelled to leave Monterey, the capital of the department, and while he was at Santa Barbara trying to make head against the revolutionary movement, he was warned by Sutter that his banner might be deserted by the petitioners for lands, unless they should be satisfied of his (the governor's) good intentions towards them in that respect. Thereupon, Micheltoreno, on the 22d of December, 1844, at Santa Barbara, made and delivered to Sutter the paper which has been known as the 'General Title,' in which he said: 'I confer upon them (the petitioners) and their families the lands described in their applications and maps to all and each one of them who has solicited and obtained favorable information from Senor Sutter up to this date, so that no one can dispute their title.' Sutter was authorized to give each of them a copy of the document, 'which,' the governor adds, 'will be known and acknowledged by all the civil and military authorities of the Mexican nation in this and the other departments.'

Hensley, the claimant in this case, showed that he was within the terms of the general title, as having received before the date of it a favorable report from Sutter. He also proved that, though a native of the United States, he was a naturalized Mexican. Sutter, himself, testified that he had given him a copy of the general title, in conformity with the directions contained in it. But this copy was made out and given to the claimant on the 20th of April, 1845, after Micheltoreno was expelled from the country, and when Pico was in the full exercise of the functions of Political Chief. Hensley never received judicial possession of the land, but he proved that he entered upon it in 1845, built houses, ditched, fenced, cultivated, and used the land as his own.

There was no evidence that the 'General Title' had ever been recorded by the Mexican authorities. The circumstances in which Micheltoreno was placed at its date were such as deprived him of all control over the records or over the officers who had them in custody.

The commissioners were of opinion that the document signed by Micheltoreno and delivered to Sutter, had the same force and effect as a grant made to each and every one of the applicants, nominatim; that the subject-matter of it was sufficiently designated, because it could be made certain by reference to the petitions and maps, and that the want of a record was, under the circumstances, not conclusive against the right of the claimants. Upon these grounds the claim was admitted, and the title confirmed by the board. The same decree was made for similar reasons by the District Court (Judge McAlister) when the case went there. The United States then appealed to this court.

Mr. Stanton, for the United States, argued that Micheltoreno's general title to Sutter conferred no right that can be confirmed under the act of Congress to ascertain private land claims in California, and cited U.S. vs. Bassett, (21 How., 412;) U.S. vs. Nye, (21 How., 408;) U.S. vs. Sutter, (21 How., 179;) U.S. vs. Burnett, (23 How., 255;) U.S. vs. Murphy, (23 How., 476;) U.S. vs.Rose & Kinlock, (23 How., 262.)

No argument, oral or written, was made in behalf of the claimant.

Mr. Justice GRIER.

title: United States v. Hensley


text: Talk:United States v. Hensley

title: Talk:United States v. Hensley


text:
United States v. Hensley/Opinion of the Court

The claim of the appellee in this case is under the deed of Micheltoreno, dated the 22d of December, 1844, commonly called the Sutter General Title. It differs in no material respect from the other titles or claims already adjudged by this court, in which this grant was in question. The cases of U.S. vs. Nye, (21 How., 408;) Same vs. Bassett, (ib., 412;) Same vs. Bennitz, (23 How., 255;) Same vs. Rose, (ib., 262,) settle the question that the claim of the appellee is invalid. The decree of the District Court is therefore reversed, and the cause remanded, with directions to that court to dismiss the petition.

Decree accordingly.


text: Talk:United States v. Hensley/Opinion of the Court


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Bacon et al. v. Hart

Mr. Stanton, of Washington city, for the defendant in error, moved that the writ of error in this case be dismissed for want of a citation.

Mr. Chief Justice TANEY.

title: Bacon et al. v. Hart


text: Talk:Bacon et al. v. Hart

title: Talk:Bacon et al. v. Hart


text:
Bacon et al. v. Hart/Opinion of the Court

We have looked into this record, and find that the writ of error must be dismissed. The action was in the nature of an ejectment, and brought to recover possession of land. The plaintiff below was William Hart, junior, a citizen of New York, residing at Manilla. His counsel in the cause was William Hart, senior. In March, 1858, judgment was rendered by the court for the plaintiff. In October of the same year a writ of error was sued out, returnable on the first Monday in December next thereafter, and service of the citation was on the 9th of October admitted by William Hart, senior. But this writ of error was not returned during the term to which it was made returnable, and failed, therefore, to bring up the case. A second writ of error was taken by the defendant below in August, 1859, returnable to the ensuing December term of this court. The citation under this latter writ was directed to William Hart, junior, and served according to the marshal's certificate, on Mary Hart, widow and executrix of William Hart, senior, who died after the judgment, and on J. D. Stevenson, his former law partner.

A service of the citation on the attorney or counsel of the proper party is sufficient; but the executrix of the counsel on record was not the counsel of her testator's client. His character and duties as counsel did not devolve on his own personal representative after his death. Nor is Mr. Stevenson to be regarded as the counsel of William Hart, junior, merely because he had been the partner of William Hart, senior. We cannot notice law partnerships or other private relations between members of the bar. This may have been a partnership, solely because it provided for a division of profits, without putting either partner under any responsibility for the suits conducted by the other. The courts can know no counsel in a cause except those who regularly appear as such on the record.

The citation not being served on the party as his counsel, the cause is not brought into this court, agreeably to the act of 1789; and the writ must therefore be dismissed for want of jurisdiction.

Writ of error dismissed.


text: Talk:Bacon et al. v. Hart/Opinion of the Court


text:
Weightman v. Corporation of Washington

This was a writ of error to the Circuit Court of the United States for the District of Columbia. The plaintiff in error brought case against the corporation of Washington for bodily injuries suffered by him, in consequence of being thrown from the bridge across Rock creek, at the termination of K street. On the trial in the Circuit Court, the plaintiff proved that the charter of the city (sec. 13) provided that 'the said corporation shall have the sole control and management of the bridge, and shall be chargeable with the expenses of keeping the same in repair, and rebuilding it when necessary.' In May, 1854, the plaintiff, a citizen of Washington, was crossing the bridge in an omnibus, when the bridge broke down, and he was seriously injured. On part of the defendant, evidence was given that the bridge had been erected by skilful and scientific workmen, in good faith, upon a plan patented by the Government, and believed to be faultless in principle; that the construction was thought to be strong and solid, both the work and materials being of the best description; that the giving way of the bridge was the result of an accident and of an unknown defect in the plan of it; that when the bridge was completed, in 1850, its strength and capacity were amply tested; that a commissioner was appointed by the corporation of the city to inspect and superintend the bridge, who performed his duties, but did not discover any defect; that the corporation had no notice, either through their officer or otherwise, that the bridge was unsafe, and that in fact there was no indication of unsoundness in it before the time of its fall.

To rebut this evidence of the defendant, the plaintiff proved that the bridge was built by Rider, the patentee of the plan, who warned the officers of the city corporation in vain against building the arch as high as they proposed to make it; that any bridge on that plan, unless it be horizontal, is unsafe, and the insecurity is increased in proportion as the arch is raised; that within a year after the bridge was put up the approach to it was changed at each end, adding thereby about three tons to its weight; that for several days before it fell, divers persons observed its unsafe condition.

The defendant prayed the court to instruct the jury that upon the whole evidence the plaintiff was not entitled to recover; and the court gave the instructions prayed for. A verdict and judgment were accordingly given for the defendant, and the plaintiff sued out this writ of error.

Mr. Bradley and Mr. Carlisle, of Washington city, for plaintiff in error, contended that the judgment of the Circuit Court ought to be reversed by this court, because:

1. The terms employed in the clause of the 13th section of the charter are mandatory, and impose on the corporation the duty to keep in repair and rebuild the bridge in question when necessary. Mason vs. Fearson, (9 How., 248.)

2. The duty thus imposed on the corporation is an absolute and purely a ministerial duty. It involves no discretionary exercise of political or legislative power, and is precisely such as might have been devolved upon an individual. Storrs vs. City of Utica, (3 Smith, 17 N. Y., 104;) Delmonico vs. City New York, (4 Com., 1 Sand., 222;) The Mayor, &c., of Albany vs. Cunliff, (2 Com., 165;) Erie City vs. Schwingle, (22 Penn., 584;) Rochester Lead Company vs. City of Rochester, (3 Coms., 467.)

3. The charter has provided the most ample means to enable the corporation to discharge this duty, by the imposition of taxes, and granting licenses; by holding and owning property, and receiving the rents, issues, and profits of real estate, to be employed by the corporate authorities in the support and execution of this, among other duties, with which they are charged. Hutson vs. City of New York, (3 Sand., 297; 7 John., 439; 7 Wend., 474; 2 Hill, 619; 6 ib., 463.)

4. The franchises thus granted to the corporation are the consideration on which they have, by accepting the charter, undertaken to discharge the duties and burthens imposed on them as conditions of the enjoyment of those franchises. (Grant Cor., p. 18, and cases in note;) Rutter vs. Chapman, (8th M. & W., 36, 85; Wilcock Mun. Corp., 30; Ang. & Am., 3d ed., chap. 2, § 7;) Conrad vs. Trustees of Ithaca, Weet vs. Brockport, (2 Smith, 191.)

5. The line of demarkation between these duties, which are immediate parts of, or incident to their political powers, and those which are purely and absolutely ministerial, is not always well defined, and may sometimes give rise to doubt; but it may be safely affirmed that when a municipal corporation is distinctly charged with the execution of a specific duty for the benefit of the public and of individuals, and means are in the same or some other instrument put into their hands, adequate to its full performance, they may be compelled to perform it, and will be responsible to individuals injured by their negligent or improper performance of it. Mayor of Lynn vs. Turner, (Cowp., 86; Grant Corp., 501;) Henley vs. Mayor of Lyme, (5 Bing., 91; S.C.., 1 Bing. N. C., 222, in error, 2 C. & F., 354, by all the judges;) Mayor of New York vs. Furze, (3 Hill, 612;) Mayor of Albany vs. Cunliff, (2 Coms., 165;) Lloyd vs. City of New York, (1 Seld., 369;) City of Pittsburg vs. Grier, (20 Penn., 64;) The Mayor of Baltimore vs. Marriot, (9 Maryland, 160, 178;) Memphis vs. Lasser, (9 Hump., 761.)

6. The bridge thus constructed by the corporation was its property, which they could take down and dispose of at their pleasure. One end of it rested on soil beyond their municipal jurisdiction, if the whole bridge was not also beyond it, and the corporation in its political character could have no control over it. Yet they were bound to repair and rebuild it out of their corporate funds, and they were responsible, if it became a public nuisance, to any one receiving special damage from the manner in which they discharged that duty. Bailey vs. The City of New York, (3 Hill, 531; S.C.. 2 Denio, 433.) Having constructed it, they had no discretionary power as to keeping it in repair. Wilson vs. Mayor of New York, (1 Denio, 595;) The Mayor of New York vs. Furze, (3 Hill, 612; Kitty's Laws, 1791, chap. 45, § 1.)

Mr. Davidge, of Washington city, contra. The officers of the corporation are invested with power over the bridge as the agents of the public, from public considerations and for public purposes exclusively, and are not responsible for the nonfeasances or mis-feasances of sub-agents necessarily employed. The nature of the power is public, and its object is the benefit of the public. The bridge is a public bridge, and so alleged. It spans a navigable stream, and one abutment only is within the corporate limits.

It is not denied that a public municipal corporation may hold franchises or other property, in relation to which it is to be regarded as a private company, and subject to the responsibilities attaching to that class of institutions. Bailey vs. The Mayor, &c., of New York, (3 Hill's N. Y. Re., 531, 540;) ''S.C.. on error, (2 Denio, 434;) Moodalay vs. The East India Co.'', (1 Brown's Ch. R., 469.) But as regards the power under consideration here, it has not a single element of private ownership, but stands on precisely the same footing as the powers of the corporation over the streets of the city, which powers, it is judicially settled, are exercised by the corporation as agents of the public. Smith vs. Corporation of Washington, (20 How., 135, 148;) Van Ness vs. Id., (4 Pet., 232.) Public agents are not responsible for the mis-feasance or non-feasance of those whom they are obliged to employ. To such cases the doctrine of respondeat superior does not apply. Story on Agency, (sec. 319-322;) Hall vs. Smith, (2 Bing., 156; 9 E. C. L. R.;) Harris vs. Baker, (4 Maul & Selw., 27;) Lave vs. Colton, (1 Ld. Raymond, 646;) Whitfield vs. Lord Le Despencer, (Cowp., 754;) Duncan vs. Findlater, (6 Clark & Finell, 903, 910;) Dunlop vs. Munroe, (7 Cranch, 242, 269;) Bailey vs. The Mayor, &c., of New York, (3 Hill's N. Y. Re., 532;) ''S.C.. on error, (2 Denio, 434, 450;) Schroyer vs. Lunch, (8 Watts, 453;) Boody et al. vs. United States, (1 Woodb. & Minot, 151, 170;) White vs. City Council, (2 Hill S.C.. R., 571;) Supervisors of Albany Co. vs. Dorr'', (25 Wend., 440.)

It may be urged that it is not sought here to hold the corporation responsible for the neglect of its official subordinates, but for neglect in the appointments of them. But admitting, argumenti grati a, that for such neglect the superior would be liable, there is no evidence to show that the commissioner lacked capacity. Moreover, it has been settled by this court that, under an allegation framed as here, evidence of neglect in making the appointment or of not properly superintending the subordinate is not admissible; but that for such neglect a recovery can be had only, if at all, upon a declaration specially framed to meet the particular kind of negligence relied on. Dunlop vs. Munroe, (7 Cranch, 242, 269.) And to the same effect is Bishop vs. Williamson, (2 Fairfield, 495, 506.)

2. At common law no action lies against public municipal corporations or quasi corporations created for public purposes, or against other public officers, for neglect to repair a public bridge or highway, unless the obligation to repair rests on tenure, prescription, or contract. The only remedy is by indictment. City of Providence vs. Clapp, (17 How., 161, and cases cited, p. 162.) In Bro. Abr., Title Sur le case, (pl. 93,) it is said that if a highway be out of repair so that a horse be mired and injured, no action lies, 'car est populus et serre reforme per presentment.' In Russell vs. The Men of Devon, (2 T. R., 667)-the leading case upon the subject-the precedent in Brooke was cited and approved, and it was held that no action lay to recover satisfaction for injury done to a wagon in consequence of a bridge being out of repair. In Riddle vs. The Proprietors of the Locks and Canals on Merrimac River, (7 Mass., 169,) Parsons, C. J., took the same distinction between corporations created for the benefit of the public, as part of the government of the country, and those created for the benefit of the corporators; and held, that the former are liable only to information or indictment. Mower vs. Leicester, (9 Mass., 947;) Young vs. Comm's of Roads, (2 Nott and M. C., 555; Com. Dig., Chemin, H. 4, B. 3;) Bartlett vs. Crozier, (17 John., 439;) Mowry vs. The Town of Newfane, (1 Bar. S.C.., 645;) White vs. City Council, (2 Hill's So. Car., 571;) Haskell vs. Inhabitants of Knox, (3 Greenl., 445.) The cases of Mayor of Lynn vs. Turner, (Cowp., 86,) Henley vs. Mayor of Lyme, (5 Bing., 91, and S.C.., 1 Bing. N. C., 222,) are cases of contract, where the grantors of franchises or property held on condition that they would repair or do certain acts. The English books are filled with indictments for neglect to repair; but no instance can be found of an action when the duty to repair was created by statute for the benefit of the public, and was irrespective of franchise or other private advantage.

3. But again: it is sought here to hold a municipal corporation, acting pro bono publico, responsible not only for its own neglect to repair, but also for that of its officer in failing to observe the ordinance for the inspection of the bridge. In Towle vs. Common Council of Alexandria, (3 Pet., 409,) the action was brought to recover damages for the non-feasance of an officer of a municipal corporation in failing to take a bond from an auctioneer as required by an ordinance. But this court held the corporation not responsible. In Levy vs. City of New York, (1 Sandf., 465,) it was held that the city was not bound by an injury sustained in consequence of a neglect of its officers to enforce an ordinance prohibiting swine running at large. So also in Griffin vs. Mayor, &c., of New York, cited in Hutson vs. Mayor, &c., of New York, (5 Sandf., 303, 304.)

4. If an action lies at all, it is only where an indictment could be maintained. The declaration assumes that the duty of the defendant in error to repair is identical with that of a private corporation or individual in relation to its own property. No notice is averred of the want of repairs, nor are the facts requisite to support an indictment. The consequences of holding a public municipal corporation, or other public officer, to the strict responsibility resting upon individuals and private companies acquiring and using property for their private enjoyment and profit, must be apparent, especially as regards a bridge or highway open at all times to the public. The rigid rule applicable to individuals and private companies flows from their exclusive rights over their own property; and such a rule can never be applied when the same rights do not exist, as in the case of a bridge or highway.

Mr. Justice CLIFFORD.

title: Weightman v. Corporation of Washington


text: Talk:Weightman v. Corporation of Washington