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Gilman v. Philadelphia/Opinion of the Court

There is no contest between the parties about the facts upon which they respectively rely.

The complainants are citizens of other States, and own a valuable and productive wharf and dock property above the site of the contemplated bridge. The river is navigable there for vessels drawing from eighteen to twenty feet of water. Commerce has been carried on in all kinds of vessels for many years to and from the complainants' property. The bridge will not be more than thirty feet above the ordinary high-water surface of the river, and hence will prevent the passage of vessels having masts. This will largely reduce the income from the property, and render it less valuable.

The defendants are proceeding to build the bridge under the authority of an act of the legislature of Pennsylvania. The Schuylkill River is entirely within her limits, and is 'an ancient river and common highway of the State.' For many years it has been navigable for masted vessels for the distance of about seven and a half miles only, from its mouth. At Market Street, about five hundred feet above Chestnut, there is a permanent bridge without a draw over the same river, and no higher above the water than it is intended to elevate the bridge about to be built. A bridge at Market Street was erected prior, perhaps, to the year eighteen hundred and nine. It rendered the passage of masted vessels above that point impossible, and since that time comparatively few have appeared above the foot of Chestnut Street. The river there has since been used chiefly as a highway for canal-boats.

The injury to the property of the complainants will be entirely consequential. A large city is rising up on the opposite side of the river. The new bridge is called for by public convenience.

The case resolves itself into questions of law.

At the threshold of the investigation we are met by the objection from the defendants, that the complainants, 'not being specially interested in navigation, cannot intervenue for its protection.' It is said, 'that they are not the owners of licensed coasting vessels, and are not pilots nor navigators.'

As regards this objection, the case is not essentially different in principle from the Wheeling bridge case.

The further objection was also taken in that case, that if a nuisance existed, it was of a public nature, and was an offence against the sovereignty whose laws were violated, and that the sovereign only could intervene for the correction of the evil.

It was answered by the court, that wherever a public nuisance is productive of a specific injury to an individual, he may make it the foundation of an action at law, and if the injury would be irreparable, that a court of equity will interpose by injunction. The decision was not put in anywise upon the ground of the trustee character of the complainant. The State alleged that she had lines of improvements for the transportation of freight and passengers extending from the east to Pittsburg, and that by reason of the bridge about to be erected across the river at Wheeling, and the obstruction which it would cause to the navigation of that stream, business would be diverted from her works to other channels, and that the income from her works would thereby be greatly lessened, and their value diminished or destroyed. The court said:

'The State of Pennsylvania is not a party in virtue of her sovereignty. It does not come here to protect the rights of its citizens,. . . nor can the State prosecute the suit upon the ground of any remote or contingent interest in herself. It assumes and claims, not an abstract right, but a direct interest, and that the power of this court can redress its wrongs, and save it from irreparable injury. . . . In the present case, the rights assumed and relief prayed are in no respect different from those of an individual. From the dignity of the State, the Constitution gives to it a right to bring an original suit in this court, and this is the only privilege, if the right be established, which the State of Pennsylvania can claim in the present case.'

'And this injury is of a character for which an action at law could afford no adequate redress. It is of daily occurrence, and would require numerous, if not daily, prosecutions for the wrong done; and from the nature of that wrong, the compensation could not be measured or ascertained with any degree of precision. The effect would be, if not to reduce the tolls on these lines of transportation, to prevent their increase with the increasing business of the country. . . . In no case could a remedy be more hopeless than an action at common law. The structure complained of is permanent, and so are the public works sought to be protected. The injury, if there be one, is as permanent as the works from which it proceeds, and as are the works affected by it. And whatever injury there may now be, will become greater in proportion to the increase of population and the commercial development of the country. And in a country like this, where there would seem to be no limit to its progress, the injury complained of would be far greater in its effects than under less prosperous circumstances.' The law upon the subject is learnedly and ably examined. The objections were overruled. Considerations of fact, of the same character with those adverted to, exist in the case before us, and the reasoning and conclusions there are alike applicable in both cases. Whatever might be our views upon the legal proposition, in the absence of this adjudication, we are, as we think, concluded by it. It is almost as important that the law should be settled permanently, as that it should be settled correctly. Its rules should be fixed deliberately and adhered to firmly, unless clearly erroneous. Vacillation is a serious evil. 'Misera est servitus ubi lex est vaga aut incerta.' This brings us to the examination of the merits of the case.

The defendants assert that the act of the legislature, under which they are proceeding, justifies the building of the bridge.

The complainants insist that such an obstruction to the navigation of the river is repugnant to the Constitution and laws of the United States, touching the subject of commerce.

These provisions of the Constitution bear upon the subject:

'Congress shall have power. . . to regulate commerce with foreign nations, among the several States, and with the Indian tribes;. . . to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.'

'This Constitution, and the laws which shall be made in pursuance thereof,. . . shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.'

'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'

The act of the 18th of February, 1793, authorizes vessels enrolled and licensed according to its provisions to engage in the coasting trade.

Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punishment of offenders. For these purposes, Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament in England.

It is for Congress to determine when its full power shall be brought into activity, and as to the regulations and sanctions which shall be provided.

A license under the act of 1793, to engage in the coasting trade, carries with it right and authority. 'Commerce among the States' does not stop at a State line. Coming from abroad it penetrates wherever it can find navigable waters reaching from without into the interior, and may follow them up as far as navigation is practicable. Wherever 'commerce among the States' goes, the power of the nation, as represented in this court, goes with it to protect and enforce its rights. There can be no doubt that the coasting trade may be carried on beyond where the bridge in question is to be built.

We will now turn our attention to the rights and powers of the States which are to be considered.

The national government possesses no powers but such as have been delegated to it. The States have all but such as they have surrendered. The power to authorize the building of bridges is not to be found in the Federal Constitution. It has not been taken from the States. It must reside somewhere. They had it before the Constitution was adopted, and they have it still. 'When the Revolution took place the people of each State became themselves sovereign, and in that character hold the absolute right to all their navigable waters and the soil under them for their own common use, subject only to the rights since surrendered by the Constitution to the General Government.'

In Pollard's Lessee v. Hagan, this court said:

'The right of eminent domain over the shores and the soil under the navigable waters, for all municipal purposes, belongs exclusively to the States within their respective territorial jurisdictions, and they, and they only, have the constitutional power to exercise it. . . .. But in the hands of the States this power can never be used so as to affect the exercise of any national right of eminent domain or jurisdiction with which the United States have been invested by the Constitution. For although the territorial limits of Alabama have extended all her sovereign power into the sea, it is there, as on the shore, but municipal power, subject to the Constitution of the United States and the laws which shall have been made in pursuance thereof.'

'Inspection laws form a portion of that immense mass of legislation which embraces everything within the territory of a State, not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.'

Bridges are of the same nature with ferries, and are undoubtedly within the category thus laid down.

The power to regulate commerce covers a wide field, and embraces a great variety of subjects. Some of these subjects call for uniform rules and national legislation; others can be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively. To this extent the power to regulate commerce may be exercised by the States.

Whether the power in any given case is vested exclusively in the General Government depends upon the nature of the subject to be regulated. Pilot laws are regulations of commerce; but if a State enact them in good faith, and not covertly for another purpose, they are not in conflict with the power 'to regulate commerce' committed to Congress by the Constitution.

In the Wheeling bridge case this court placed its judgment upon the ground 'that Congress had acted upon the subject, and had regulated the Ohio River, and had thereby secured to the public, by virtue of its authority, the free and unobstructed use of the same, and that the erection of the bridge, so far as it interfered with the enjoyment of this use, was inconsistent with and in violation of the acts of Congress, and destructive of the right derived under them; and that, to the extent of this interference with the free navigation of the Ohio River, the act of the legislature of Virginia afforded no authority or justification. It was in conflict with the acts of Congress, which were the paramount law.'

The most important authority, in its application to the case before us, is Wilson v. The Blackbird Creek Marsh Co. Blackbird Creek extends from the Delaware River into the interior of the State of Delaware. The legislature of the State passed an act whereby the company were 'authorized and empowered to make and construct a good and sufficient dam across said creek, at such place as the managers or a majority of them shall find to be most suitable for the purpose,' &c. The company proceeded to erect a dam, whereby the navigation of the creek was obstructed. The defendant, being the owner of a sloop of nearly a hundred tons, regularly enrolled and licensed under the laws of the United States, broke and injured the dam. The company brought an action of trespass against him in the Supreme Court of Delaware. The defendant pleaded that the place where the trespass was committed was 'a public and common navigable creek, in the nature of a highway, in which the tides had always flowed and reflowed; and that all the citizens of the United States had a right, with sloops, and other vessels, to navigate and pass over the same at all times at their pleasure,' &c., and therefore, &c.

The plaintiffs demurred. The Supreme Court sustained the demurrer and gave judgment in their favor. The Court of Appeals of that State affirmed the judgment. The case was brought into this court by a writ of error. In delivering the opinion of the court, Chief Justice Marshall said:

'But the measure authorized by this act stops a navigable creek, and must be supposed to abridge the rights of those who have been accustomed to use it; but this abridgment, unless it comes in conflict with the Constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance. The counsel for the plaintiffs in error insist that it comes in conflict with the power of the United States 'to regulate commerce with foreign nations and among the several States."

He remarked that if 'Congress had passed any law which bore upon the subject the court would not feel much difficulty in saying that a State law, coming in conflict with such an act, would be void;' and added, in conclusion:

'But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States; a power which has not been so exercised as to affect the question. We do not think that the act empowering the Blackbird Creek Marsh Company to place a dam across the creek can, under all the circumstances of the case, be considered as repugnant to the power to regulate commerce in its dormant state, or as being in conflict with any law passed on the subject.' This opinion came from the same 'expounder of the Constitution' who delivered the earlier and more elaborate judgment in Gibbons v. Ogden. We are not aware that the soundness of the principle upon which the court proceeded has been questioned in any later case. We can see no difference in principle between that case and the one before us. Both streams are affluents of the same larger river. Each is entirely within the State which authorized the obstruction. The dissimilarities are in facts which do not affect the legal question. Blackbird Creek is the less important water, but it had been navigable, and the obstruction was complete. If the Schuylkill is larger and its commerce greater, on the other hand, the obstruction will be only partial and the public convenience, to be promoted, is more imperative. In neither case is a law of Congress forbidding the obstruction an element to be considered. The point that the vessel was enrolled and licensed for the coasting trade was relied upon in that case by the counsel for the defendant. The court was silent upon the subject. A distinct denial of its materiality would not have been more significant. It seems to have been deemed of too little consequence to require notice. Without overruling the authority of that adjudication we cannot, by our judgment, annul the law of Pennsylvania.

It must not be forgotten that bridges, which are connecting parts of turnpikes, streets, and railroads, are means of commercial transportation, as well as navigable waters, and that the commerce which passes over a bridge may be much greater than would ever be transported on the water it obstructs.

It is for the municipal power to weigh the considerations which belong to the subject, and to decide which shall be preferred, and how far either shall be made subservient to the other. The States have always exercised this power, and from the nature and objects of the two systems of government they must always continue to exercise it, subject, however, in all cases, to the paramount authority of Congress, whenever the power of the States shall be exerted within the sphere of the commercial power which belongs to the nation.

The States may exercise concurrent or independent power in all cases but three:

1. Where the power is lodged exclusively in the Federal Constitution.

2. Where it is given to the United States and prohibited to the States.

3. Where, from the nature and subjects of the power, it must necessarily be exercised by the National Government exclusively.

The power here in question does not, in our judgment, fall within either of these exceptions.

'It is no objection to distinct substantive powers that they may be exercised upon the same subject.' It is not possible to fix definitely their respective boundaries. In some instances their action becomes blended; in some, the action of the State limits or displaces the action of the nation; in others, the action of the State is void, because it seeks to reach objects beyond the limits of State authority.

A State law, requiring an importer to pay for and take out a license before he shoud be permitted to sell a bale of imported goods, is void, and a State law, which requires the master of a vessel, engaged in foreign commerce, to pay a certain sum to a State officer on account of each passenger brought from a foreign country into the State, is also void. But, a State, in the exercise of its police power, may forbid spirituous liquor imported from abroad, or from another State, to be sold by retail or to be sold at all without a license; and it may visit the violation of the prohibition with such punishment as it may deem proper. Under quarantine laws, a vessel registered, or enrolled and licensed, may be stopped before entering her port of destination, or be afterwards removed and detained elsewhere, for an indefinite period; and a bale of goods, upon which the duties have or have not been paid, laden with infection, may be seized under 'health laws,' and if it cannot be purged of its poison, may be committed to the flames.

The inconsistency between the powers of the States and the nation, as thus exhibited, is quite as great as in the case before us; but it does not necessarily involve collision or any other evil. None has hitherto been found to ensue. The public good is the end and aim of both.

If it be objected that the conclusion we have reached will arm the States with authority potent for evil, and liable to be abused, there are several answers worthy of consideration. The possible abuse of any power is no proof that it does not exist. Many abuses may arise in the legislation of the States which are wholly beyond the reach of the government of the nation. The safeguard and remedy are to be found in the virtue and intelligence of the people. They can make and unmake constitutions and laws; and from that tribunal there is no appeal. If a State exercise unwisely the power here in question, the evil consequences will fall chiefly upon her own citizens. They have more at stake than the citizens of any other State. Hence, there is as little danger of the abuse of this power as of any other reserved to the States. Whenever it shall be exercised openly or covertly for a purpose in conflict with the Constitution or laws of the United States, it will be within the power, and it will be the duty, of this court, to interpose with a vigor adequate to the correction of the evil. In the Pilot case, the dissenting judge drew an alarming picture of the evils to rush in at the breach made, as he alleged, in the Constitution. None have appeared. The stream of events has since flowed on without a ripple due to the influence of that adjudication. Lastly, Congress may interpose, whenever it shall be deemed necessary, by general or special laws. It may regulate all bridges over navigable waters, remove offending bridges, and punish those who shall thereafter erect them. Within the sphere of their authority both the legislative and judicial power of the nation are supreme. A different doctrine finds no warrant in the Constitution, and is abnormal and revolutionary.

Since the adoption of the Constitution there has been but one instance of such legislative interposition; that was to save, and not to destroy. The Wheeling bridge was legalized, and a decree of this court was, in effect, annulled by an act of Congress. The validity of the act, under the power 'to regulate commerce,' was distinctly recognized by this court in that case. This is, also, the only instance, occurring within the same period, in which the case has been deemed a proper one for the exercise, by this court, of its remedial power.

The defendants are proceeding in no wanton or aggressive spirit. The authority upon which they rely was given, and afterwards deliberately renewed by the State. The case stands before us as if the parties were the State of Pennsylvania and the United States. The river, being wholly within her limits, we cannot say the State has exceeded the bounds of her authority. Until the dormant power of the Constitution is awakened and made effective, by appropriate legislation, the reserved power of the States is plenary, and its exercise in good faith cannot be made the subject of review by this court. It is not denied that the defendants are justified if the law is valid. We find nothing in the record which would warrant us in disturbing the decree of the Circuit Court, which is, therefore,

AFFIRMED WITH COSTS.


text: Talk:Gilman v. Philadelphia/Opinion of the Court

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


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Secrist v. Green

GREEN brought ejectment against Secrist, in the Circuit Court for Northern Illinois, to recover land in that State which had belonged originally to Tibbitts. The title which he set up, and the respective items of which he offered in evidence on the trial, was thus:

1. A deed from Tibbitts to William James, of Albany, acknowledged as hereinafter stated.

2. Death of this William James, and a descent to his heirs-at-law, of whom J. B. James was alleged to be one; all asserted to be proved by a deposition of Mr. Gideon Hawley.

3. Partition of a large body of lands in Pike, Morgan, Adams, and other counties in Illinois, of which the piece sued for was part, and allotment of it to this J. B. James, under proceedings in the Circuit Court of Pike County, Illinois; a record from which court was offered.

4. Death of J. B. James, and his last will, making one Dexter executor, giving power to sell real estate, with probate and letters testamentary, which will, & c., was presented in the form of a certified transcript of a record of Adams County, Illinois, recording, in that county, a copy (duly certified under the act of Congress, 'to prescribe the mode in which the public acts, records, and judicial proceedings in each State shall be authenticated so as to take effect in every other State') of the will, proved and registered in Albany, with the probate and letters testamentary there granted thereon to Dexter, as beforesaid.

5. Deed from Dexter, executor, as above mentioned, to Green, or persons through whom he claimed, for the premises demanded.

1. As respected the first item in the title-the deed from Tibbitts to James. The deed, dated 3d March, 1818, was thus acknowledged on the day of its date:

STATE OF NEW YORK, ss:

Be it remembered that, on the day of the date of the within deed, personally came before me the within named George Tibbitts, and acknowledged before me that he had executed the within deed freely, for the uses and purposes therein mentioned, and consented that the same might be recorded where necessary; and further that Zachariah Galusha, to me personally known, a subscribing witness to the execution of this deed, having been duly sworn, made oath before me that he knew the said George Tibbitts to be the same person ddscribed in and who executed the said deed, and that he was a subscribing witness to the execution thereof; all which being satisfactory to me, the said deed may therefore be recorded.

GIDEON HAWLEY, Master in Chancery.

The defendant made objection to the deed, because:

(i) That there was no proof that the person taking the acknowledgment was really a master in chancery; and,

(ii) That a master in chancery of the State of New York had no power to take acknowledgments to deeds for lands in Illinois, and to be recorded there; a matter of course which depended on the statute laws of Illinois, and perhaps on those of New York also. The court below deemed the acknowledgment sufficient, and the deed was read.

2. As respected the second item in the title-the death of William James and the heirship of J. B. James. Both facts rested on the deposition of Mr. Gideon Hawley, aged seventy-two, a retired counsellor-at-law. Mr. Hawley testified to his long and intimate acquaintance with James, the ancestor, and to his death; to the fact of his leaving children, whose number and names he stated. He mentioned who of them were living, and 'that the children who died prior to his decease (as appears from entries in his family Bible, and which this deponent believes to be true'), were J. B. James, &c.; that J. B. James, son of the said William, died in Chicago, on or about 22d May, 1856, testate as I am informed and believe. The deposition was objected to, because 'as to the contents of the family Bible, the said Bible itself is the best evidence, and because so much of the deposition as is on information and belief is incompetent.' The objection was overruled, and the deposition read.

3. In regard to the next link-which depended on the proceedings and allotment in partition under proceedings had in the Circuit Court of Pike County. It was not denied that the court named had jurisdiction of matters of partition; but objection was made that it nowhere appeared that the parties, James, were properly or legally brought into court,. . . and because the bill for partition was not filed or suit brought in the county in which the greatest amount of lands lie (as required by the statute), and because publication was made in Morgan County adjoining, and not in Pike County, where the proceedings in partition were had.

By the laws of Illinois all the parties in interest were required to have notice of the application for such partition, by summons duly served, or by advertisement, to be published for four weeks in the nearest newspaper to the premises.

In the case of this partition, the record on the subject of notice ran thus:

'The cause now coming on to be heard, and it appearing satisfactorily to the court that due legal notice had been given to all the defendants in this suit of the pendency of the same, by publication in the 'Illinoian,' a public newspaper printed in Jacksonville, in the County of Morgan, and State of Illinois, four weeks successively, commencing on the first day of July, A.D. 1843, and ending on the fifth day of August, A.D. 1843; and the guardian ad litem of the infant defendants having filed his answer, setting up no opposition to the granting of the prayer of said bill, and all the other defendants, although three times solemnly called, coming not, but making default, and summons having issued, in pursuance to law, for all the defendants in this suit, and there being no opposition to the prayer of the bill, it is ordered that the said bill be taken for confessed.'

The court below allowed the record to be read.

As to the fourth and final matter-the death of J. B. James, the probate of his will, and the record produced from Adams County, Illinois. It appeared that J. B. James died leaving a will executed at Albany, New York, where he lived; that this will was admitted to probate in the Surrogate's Court of Albany County, and letters testamentary granted by the surrogate, Dexter, who was named in it executor and trustee; that the will with its probate and letters, properly authenticated by the surrogate according to the act of Congress already mentioned-which enacts that records and judicial proceedings authenticated as it directs shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence they are taken-was recorded in Adams County, Illinois. This record from Adams County, Illinois, it was which was offered-offered, of course, as a foundation for the introduction of the fourth link in the chain of Green, the plaintiff's, title-the deed, namely, from Dexter, executor of J. B. James.

To understand the ground on which the record from Adams County, obviously not admissible on common-law principles, was offered, it is necessary to say that by statute in Illinois, passed in 1853, entitled 'An act in relation to conveyances of real estate by non-resident creditors,' it was made lawful for a non-resident executor, who had proved the will of his testator and accepted the trust, in any one of the States of the Union, to execute the will in Illinois in the same manner as though he had qualified in that State. Before he could sell any real estate he was required to produce the will, or a copy of it, with the probate of it and authority to execute it, properly authenticated, and have it recorded in the County Court of that county in Illinois, where the property of the testator, or a part of it, was situated; and he was obliged to give bond for the faithful appropriation of the effects of the testator in Illinois. It was then the duty of the judge of the County Court to certify that such will was duly authenticated under the provisions of the act of the legislature.

The record from Adams County was duly authenticated. It showed that the bond which the Illinois statute of 1853 requires for 'faithful appropriation' had been given by Dexter; and that the judge of the County Court had made all the authentication required by the act to authorize the recording in Adams County.

The reading of this record from Adams County was objected to, because it was a record not of the original of any will, but a record of that which was but an alleged transcript of one; a copy of a copy therefore, or at best a record of a record. . . . The court below overruled the objection, and the record was read.

Two trials were had below, both resulting for the plaintiff. On exceptions to the evidence already mentioned as received, the questions here were:

1. Whether the acknowledgment of the deed to William James, before the New York master in chancery was sufficient to allow it to be read in Illinois?

2. Whether the heirship of J. B. James had been sufficiently proved?

3. Whether the court below erred in suffering the record of the proceedings in partition in Pike County to go to the jury?

4. Whether it erred in allowing to be read the record from Adams County, of the copy of J. B. James's will, proved originally in Albany, New York, and with the record of probate and the letters testamentary, certified under the act of Congress as already mentioned?

Mr. Grimes, for the plaintiff in error; Mr. Browning, contra.

Mr. Justice DAVIS delivered the opinion of the court.

title: Secrist v. Green


text: Talk:Secrist v. Green

title: Talk:Secrist v. Green


text:
Secrist v. Green/Opinion of the Court

1. The authentication by the master in chancery in New York of the deed to William James, when made, was in conformity to the laws of New York for the conveyance of real estate within the State. By the terms of an act concerning the proof of deeds and conveyances, passed by the legislature of New York on the 6th of April, 1801, and substantially re-enacted on the 12th of April, 1813, a master in chancery was authorized to take the proof and acknowledgment of deeds. This authority remained unchanged until July 1, 1818. After, that, he was forbidden to do any official act which did not exclusively pertain to his duties as a master in the Court of Chancery. If the grantor was not known to the officer taking the acknowledgment, the law required that the deed should be proved by satisfactory evidence, and that the substance of the evidence, with the names of the witnesses, should be incorporated in the certificate of acknowledgment. All this was done in the case of this deed; and if the lands had been in New York it is certain that the deed could have been read in evidence in any of the courts of that State without further proof. What effect is to be given to such an instrument, thus authenticated, in Illinois, must of course depend wholly upon the statutes of that State; and on this point we are not left in doubt. Provision is made in an act of the legislature of Illinois for the record of all deeds to lands in that State which have been executed without the State and within the United States, and have been acknowledged or proved in conformity to the laws of the State where executed. The act also declares that all such deeds, when so recorded, may be used as evidence without further proof of their execution. The deed under review, having been acknowledged and proved, as required by the laws of New York, when it was executed, was entitled to be recorded in Illinois, and was properly read in evidence. It was, indeed, insisted that there should have been some proof of the official character of the master in chancery. But neigher the legislatures of New York or Illinois saw fit to require any such proof, and therefore none was necessary.

2. As respects the deposition of Mr. Hawley, read to the jury to prove the death of William James, and the names of his heirs-at-law, the exceptions taken to it cannot be sustained; for the witness really testifies to every material fact of his own knowledge, although it is competent to prove death and heirship by reputation.

3. Did the court err in suffering the record of the proceedings in partition to go to the jury?

The Circuit Court of Pike County, where a part of the real estate was situated, had jurisdiction, on proper bill or petition filed, to decree partition. All the parties in interest were required to have notice of the application for such partition, by summons duly served or by advertisement, to be published for four weeks in the nearest newspaper to the premises.

Such a notice was published, for the time specified, in a newspaper printed in an adjoining county, and the presumption is, that it was the nearest newspaper to the premises, in the absence of any proof to the contrary, or that a newspaper was printed in Pike County. But the decree finds that due legal notice had been given to all the defendants, and the courts of Illinois hold that such a finding is prima facie evidence of the fact, although not conclusive. There was nothing in the record to show that the finding was not true, and the burden of proof rested on Secrist, who attacked the jurisdiction, to prove that notice in conformity with the statute was not given, notwithstanding the finding of the court.

The jurisdiction of the court being once established, its subsequent proceedings cannot be collaterally questioned. Secrist is a stranger to the proceedings, and does not claim under them, and can make no objection that does not go to the jurisdiction of the court. He cannot be allowed to object to a result of which the parties to the decree have not complained. There was enough in the record to show that the court had jurisdiction of the subject-matter and the parties; and one who was not a party to it, and seeks no rights under it, cannot complain that it does not contain the original bill or petition for partition.

We think all the objections which were taken to the introduction of this record in evidence were property overruled by the Circuit Court.

Whether the record from Adams County-read in evidence as a foundation for the introduction of a deed from Dexter, the executor, which was a link in Green's chain of title-was properly received, depends altogether upon the laws of Illinois. In 1853, the legislature of that State provided for the conveyance of real estate by non-resident executors. The substance of the act has been stated on a preceding page. What the act requires was done in regard to the will of Mr. J. B. James, and the record which was resisted shows that the executor complied literally with its requirements, and was authorized to execute the powers given in the will, so far as to convey real estate in Illinois. A certified copy of the record of the County Court of Adams County became, under the general laws of the State, evidence.

JUDGMENT AFFIRMED WITH COSTS.

title: Secrist v. Green/Opinion of the Court


text: Talk:Secrist v. Green/Opinion of the Court


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United States v. Gomez (70 U.S. 752)

So far as the title involved in the claim of Gomez was concerned, the case could embrace nothing, of course, but the question, whether title was shown or not; whether the claim was well founded, or the reverse of it?

As respected this matter of the claim. The petition of the claimant to the governor was for a place described as Panoche Grande, of the extent of three square leagues. Appended to it was the customary informe; but there was no concession or grant, nor sufficient evidence of the issue of a title. It was asserted, but not proved, that the claimant had obtained the map in the record from the proper officer. One witness only, of several examined, alleged that he had ever seen the grant, and no possession was shown. A neighbor of Gomez, who had lived for twenty years in the vicinity of the land claimed, and had known Gomez and his father before him, had never heard, as it appeared afterwards, of Gomez having any land thereabouts. The commissioners rejected the claim. Whether the District Court, on appeal, if it had examined the case and been acting advisedly, would have done the same, can only be inferred. It did not, however, examine the case, nor act advisedly. The person who had been the counsel of Gomez, one Ord, having become the representative at law of the United States as the district attorney for that part of California, entered into a bargain with Gomez to allow a reversal, by the District Court, of the decree of the board, and a consequent confirmation of the claim, on condition of receiving himself a portion of the land; which afterwards he did receive. By such an abuse and betrayal of his official trust, as the reporter understood the case, the decree above mentioned was obtained. So far as Gomez was concerned, therefore, whatever title he had derived no validity from the decree.

The allegation was, however, that the land was now owned by McGarrahan, who purchased it in December, 1857, after a decree of confirmation was pronounced by the court, who having had no suspicion that there was anything fraudulent in the judicial proceedings by which the title was confirmed, was not affected by Ord's fraudulent act, and who stood in the position of an innocent purchaser, without notice.

Representing this person, and desiring to get the case dismissed from the court, as the first stept in establishing his title, Messrs. Cushing and Stone, in his behalf, set up that this court had no jurisdiction of the case. Urging, with what force they could on the evidence, McGarrahan's title as a bona fide purchaser for value of a title regular on its face, they set up further, pressing it strongly, that the court had no jurisdiction to entertain the appeal.

1st. Because the appeal was not taken within five years from the date of the decree.

2d. Because there was no citation.

3d. Because the appeal was not entered at the term of this court next succeeding the appeal.

4th. Because the pretended appeal, by virtue of which this entry was made, lost all its legal effect, by reason of the subsequent proceedings, in the District Court, on the part of the United States District Attorney.

5th. Because the decree appealed from was not a final decree.

To understand these grounds, a narrative must be borne with by the reader. Its particulars are complicated and dull, perhaps, as well. The history has been once told in the reports of two years since. But not to refer the reader for half the case to a volume which he may not have at hand, the reporter must request him to tolerate a repetition, and read it again.

The case was heard in the District Court of Southern California, June 5, 1857; on which day the court delivered its 'opinion,' confirming the claim for three leagues; and ordering 'a decree' to be entered up in conformity with the opinion. But no decree was entered at that time. Was it that a thing begun in fraud found its author infirm of purpose, and was followed by irregularity? The cause did not appear. On the 7th January, 1858, a decree in extenso was filed, describing the land confirmed as 'three' leagues. The decree ended thus:

'And it appearing that, on the 5th June, 1857, the lands had been confirmed by the court to the said claimant, and it having been omitted to sign and enter a decree therefor, at the date last aforesaid, it is ordered that the same be done now for then.'

On the 4th of February of the same year, the court ordered that the claimant 'have leave to amend this decree by substituting another in its stead.' Gomez did accordingly, on the day following, procure another decree to be entered. It was much like the other, giving the name of the tract and boundaries, as it did; describing it, however, as containing four leagues. This decree ended thus:

'It appearing that, heretofore, to wit, on the 5th June, 1857, &c., the claim in this case had been confirmed by the court, but that it had been omitted by the court to sign the decree of confirmation at the time the same was made. It is, therefore, further ordered by the court that the same be signed now as then.'

In due time, the sin of the district attorney found him out. He withdrew from the country. And on motion of the United States it was, on the 21st March, 1861, ordered by the court (Ogier, J., sitting),

title: United States v. Gomez (70 U.S. 752)


text: Talk:United States v. Gomez (70 U.S. 752)


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United States v. Gomez (70 U.S. 752)/Opinion of the Court

'That all proceedings heretofore had in the cause be set aside, and the cause be put on the calendar, and set for trial de novo, according to law.'

But, behold a new incident! Mr. Justice Ogier died. Another judge sat in his seat, and he, thinking that, after the lapse of a year, no power had rested with his deceased brother to alter or modify a decree, except to correct some clerical error, 'with great reluctance,' on the 4th August, 1862, vacated the order of March 21, made by his predecessor.

The case thus stood a decree entered on the 7th of January, 1858 (or possibly on the 5th of February following), as of the 5th of June, 1857.

At the same term, on the 25th August, 1862, on motion in open court-no citation having been issued-an appeal was allowed the United States 'from the decision and decree of this court confirming the claim of the claimant herein:' and on the 6th October following, the district attorney, reciting that the claimant was 'desirous of moving the court to set aside the order for appeal,' agreed by entry made on the minutes that all proceedings should be stayed till the next term, 'so as to give the claimant an opportunity to make such motion.' On 1st December, 1862, a motion to vacate the appeal was made and heard, and on the 4th the order for appeal was vacated; the grounds of the order being that the decree having been entered nunc pro tunc, took effect as from June 5th, 1857; and not from 7th January, 1858; thus, of course, making more than five years to the 25th August, 1862, when the appeal was allowed.

And now came an episode; one of a sort rather unusual in judicial doings. The clerk of the District Court refused to give a copy of the record. The appellants, represented by Mr. Goold, of the California bar, 'special counsel of the United States,' had asked for a copy on the 10th October, after the appeal was allowed, and the clerk had promised to give it to him. Not getting it at the promised time, he asked for it again on the 2d of December; the clerk now informed the counsel 'that he had changed his mind on the subject, and would not prepare or deliver a transcript in said cause.' Mr. Goold 'offered to pay said clerk his customary fees for a transcript of said record; but said clerk persisted in his refusal to prepare one.'

In anticipation, it would seem, of what was about to happen, the Congress of the United States had intervened, and on the 6th of August, 1861, passed a statute enacting:

'That the district attorney of the United States of any district in California may transcribe and certify to the Supreme Court of the United States the records of the District Court of his proper district in all land cases wherein the United States is a party, upon which appeals have been or may be taken to the Supreme Court of the United States; and records so certified by such district attorney under his hand and filed in the Supreme Court of the United States shall be taken as true and valid transcripts to the same intent and purpose as if certified by the clerk of the proper district.'

McGarrahan in turn applied, 6th April, 1863, to the District Court (Haight, J.) for an injunction on the clerk and attorney to restrain them from making out any transcript; the ground of the application being that the copy asked for was for the purpose of an appeal, and that no appeal was pending. The court refused an injunction as not a proper remedy, but-observing that no appeal was pending, or from the lapse of time ever could be taken, and that the district attorney had no power to certify copies under the act of Congress except there was one, and that his certificate would be null, accordingly-declared that procuring copies on behalf of the United States in such a case was a fraud on the government, and not to be tolerated, and that 'in this case as in most litigations which had come under his observation, private parties were seeking their own ends and conducting litigations at the expense of the United States, wherein the final result was matter of entire indifference so far as the interest of the government was concerned.'

The attorney-general, Mr. Bates, in person now interposed. He wrote to the judge, and by letter sent to Mr. Goold, at San Francisco, directed him to obtain a copy, calling on the district attorney of the United States at San Francisco for any needed 'aid.' Provision was again made for the clerk's fees. Telegrams were sent across the continent. But it was in vain. Neither request, entreaty, demand, nor offered fees besides, procured the record.

The district attorney accordingly set to work to prepare and certify a roll himself. But the custody of rolls was not with him. They were in the power of the clerk, as had been his own sign manual and official seal. The district attorney could control the one no more than he could control the others. He happened, however, to possess copies of all the parts of the record except the transcript sent up by the late Board of Land Commissioners. Putting all in proper sequence, he prepared a transcript of a record, certifying 'that the foregoing one hundred and seven pages are a full, true, and correct copy of all the proceedings, entries, and files in the District Court for the Southern District of California, except the transcript from the late board, &c., in the case of United States v. Gomez, No. 393, for the claim called Panoche Grande.'

On this record the case came here, and was docketed in February, 1864.

Soon after it came the then counsel of Gomez, or of his successor in interest, made a motion to dismiss the case. The ground of the motion was that the court had no jurisdiction to hear and determine the same-

1. Because the five years within which an appeal can be taken had expired before the appeal was claimed and allowed.

2. Because the entry of the appeal was made without authority and had been set aside.

3. Because there was no citation.

4. Because the appeal was not seasonably prosecuted.

5. Because the transcript of the record was incomplete.

Comparing the reasons now assigned (see supra, p. 754) by Messrs. Cutting & Stone, on the regular calling of the case, for refusing to hear, with those just mentioned as assigned two years ago, by other counsel, in advance of regular call, on a motion to dismiss, the reader will perceive that they are in effect, except in the fifth one, the same reasons. And if the court on the mere motion to dismiss had deemed it best to take up and consider all the five reasons on that motion assigned, and fully and finally to dispose of each one-the fact that they had refused to dismiss the case would have been, of course, a bar to a further presentation of any of those same reasons now: as a cause for declining to hear it. But they did not deem this best. They considered the 1st, 3d, and 5th of the reasons, in the order in which they stand just preceding. Considering them, they declared them not well founded: holding--

1st. That the decree dated from 7th January, 1858, and not from the prior date of June 5th, 1857.

3d. That a citation was unnecessary.

5th. That the transcript certified by the district attorney was sufficient.

But on the 2d and 4th reasons assigned they said nothing: and remarked in conclusion as follows:

'In view of the whole case our conclusion is that the motion to dismiss the appeal must be overruled. Effect of the motion if granted would be ''to leave the decree below in full force and unreversed; which is a result that at present we are not prepared to sanction. When the cause comes up upon its merits we shall desire to hear the counsel on the question whether there is any valid decree'' in the case, and if not as to what will be the proper directions to be given in the cause. Those questions are not involved in the motion to dismiss.'

The case had now 'come up upon its merits;' when, interpreting the old case 'as really nothing more than a declaration that the court were not then prepared to pass finally upon the rights of the parties,' the counsel for the appellee put forward all the old points again. Those already distinctly passed upon, the court did not, however, consider open. The second one it considered as disposed of by what was said about the first. And, disincumbered of a quantity of irrelative matter, by which they were surrounded and confused, the questions now before the court were:

1. Whether under the circumstances of this case the appeal, if a final decree, and legally taken and allowed, had been ineffective for want of seasonable prosecution; the general rule being confessedly that the transcript must be filed here and the case docketed at the term next succeeding the appeal?

2. If the appeal had not become ineffective, how did the claim stand upon merits?

3. Whether, if the decree was invalid and void, it had such vitality as that this court would sustain an appeal upon it, and reform and correct it.

Messrs. Black and Goold, for the United States.

Mr. Justice CLIFFORD delivered the opinion of the court.

Claim of the appellee, as described in his petition to the land commissioners, was for a tract of land situated in California called Panoche Grande, of the extent of four square leagues, and he alleged that the tract was granted to him, in the year 1844, by Governor Manuel Micheltorena. Unable to exhibit his title-papers, as required by the act of Congress upon the subject, he relied upon parol proof to show their existence, loss, and contents. Commissioners rejected the claim, and the claimant appealed to the District Court, where the claim for the whole tract was confirmed. Final decree, as amended, was entered on the fifth day of February, 1858; and on the twenty-fifth day of August, 1862, the appeal of the United States was allowed.

1. Appellants insist that the claim is utterly without merit, and that the decree of the District Court should be reversed. On the other hand, the claimant denies that this court has jurisdiction of the cause, and contends that the appeal should be dismissed. Principal difficulty in the case grows out of certain proceedings in the cause, which have taken place since it first made its appearance in this court. Docket entries for the December Term, 1858, show that the case was first presented here at that term by the claimant, as an appeal not prosecuted, and that it was, on the production of the record, on his motion, dismissed in conformity to the rules of court for the want of prosecution. Mandate of the court dismissing the appeal was, on the eighteenth day of March following, delivered to the assignee of the claimant.

2. Nothing further was done in the cause in this court until the December Term, 1859, when the attorney-general filed a motion to rescind the decree dismissing the cause, and to revoke the mandate, basing the motion upon the ground that the decree and mandate had both been procured by misrepresentation and fraud. Minutes of the clerk, also, show that he filed his motion on the twenty-seventh day of January, 1860, and that the claimant, on the second day of March following, filed three other motions. First motion of the claimant was for mandamus to the District Court, to compel the judge to file the mandate and permit the execution of the decree confirming the claim. Second motion was for mandamus to compel the District Court to dismiss an application before it to open the decree and grant a rehearing. Third motion was for mandamus to compel the surveyor-general to survey the land confirmed by the decree. All those motions were heard at the same time, and the court overruled the several motions of the claimant, and entered a decree rescinding the decree dismissing the appeal, and revoked and cancelled the mandate as moved by the attorney-general. Affidavits offered showed that no appeal had been taken by the United States, and that the statement that such an order had been made as was exhibited in the transcript and filed in the case was false. They showed not only that the United States had not appealed, but that a motion filed by their special counsel for a rehearing was still pending in the District Court. Decision of the court, therefore, was, that the appeal was not before the court when the cause was docketed and dismissed.

3. Next appearance of the cause here was at the December Term, 1863, which is the appeal now before the court. Record was filed and the cause docketed on the twenty-ninth day of February, 1864; and on the thirty-first day of March following the claimant filed a motion to dismiss the appeal, because, as therein alleged, this court had no jurisdiction 'to hear and determine the same.' 1. Because the five years within which an appeal can be taken, had expired before the appeal was claimed and allowed. 2. Because the entry of the appeal was made without authority, and had been set aside. 3. Because there was no citation. 4. Because the appeal was not seasonably prosecuted. 5. Because the transcript of the record was incomplete. Parties were heard upon that motion, and on the eighteenth day of April, of the same year, it was unanimously overruled.

4. Coming to the present term of the court, the docket entries show that the motion under consideration was filed by the claimant on the ninth day of February last. He moved the court to strike out certain matters printed in the record, and requested the court to determine the fourth cause assigned in the motion of the preceding term for the dismissal of the cause, which, as he alleges, was not noticed, considered, or decided, when the motion was overruled and denied. Both branches of the motion were subsequently argued by counsel, and on the twenty-sixth day of February last the motion was overruled; but the Chief Justice, in announcing the result, remarked that the question of jurisdiction would be open when the cause should be argued upon the merits.

Since that time, the cause has been reached in the regular call of the docket, and has been fully argued on both sides. Claimant still denies the jurisdiction of the court, and the counsel have reargued all the questions of jurisdiction presented for decision in the original motion to dismiss.

5. Three of those questions, to wit, the first, third, and fifth, were carefully examined and decided by this court during the same term in which the motion was filed, and it is only necessary to refer to that decision as the final determination of the court. Special mention was not made of the second question presented in the motion, because what was said by the court, in disposing of the first question, rendered any further remarks upon that subject unnecessary. Express statement of the opinion is, that the appeal to this court was allowed on the day therein specified. But the suggestion is, that the court did not decide the fourth question presented for decision, and the suggestion, so far as it applies to the opinion of the court, is certainly well founded.

Fourth objection to the jurisdiction of the court was, that the appeal, even if legally taken and allowed, became null and void for the want of seasonable prosecution. General rule, as established by repeated decisions, undoubtedly is, that the transcript must be filed here, and the case docketed at the term next succeeding the appeal, in order to give this court jurisdiction. Argument upon that subject is unnecessary, as the rule has been reaffirmed at this term in an opinion delivered by the Chief Justice. Unless the case, therefore, falls within some exception to the general rule of practice, as derived from the act of Congress allowing appeals, the motion of the claimant must prevail.

6. Certain exceptions to that general rule are recognized and allowed, which are as well established as the rule itself. They are admitted as indispensable limitations to guard against fraud and circumvention, and to prevent a failure of justice. Where the appellant, having seasonably procured the allowance of the appeal, is prevented from obtaining the transcript by the fraud of the other party, or by the order of the court, or by the contumacy of the clerk, the rule does not apply, provided it appears that the appellant was guilty of no laches, or want of diligence, in his efforts to prosecute the appeal. Order allowing the appeal in this case was entered on the twenty-fifth day of August, 1862; but on the sixth day of October following, a stipulation was entered in the minutes, that the transcript should be withheld until the next term of that court, in order to give the claimant an opportunity to move the court to set aside the order of appeal. Such a motion was accordingly made by the claimant on the first day of the succeeding December; and on the fourth day of the same month the court directed that the order allowing the appeal should be vacated and set aside. Reason for vacating the appeal as assigned was, that the five years had expired before it was allowed, which is directly contrary to the decision of this court, and consequently must be considered as overruled. Although the decision of the court was erroneous, still the proceedings under the motion had the effect to prevent the appellants, in the meantime, from obtaining a copy of the transcript.

Session of this court for that term commenced four days before the order of the District Court was announced, vacating the appeal. Suppose the explanatory facts stopped here, it might well be assumed that it was the conduct of the claimant and the action of the court which prevented the appellants from seasonably perfecting the appeal; but they do not, by any means, stop at that point. Appellants demanded the transcript on the tenth day of October next after the appeal was allowed, and the clerk agreed that it should be prepared and delivered. Failing to obtain it, they, on the second day of December following, again demanded it, and then, for the first time, were informed by the clerk, that he would not furnish the document. Present claimant, on the sixth day of April, 1863, instituted a proceeding in the District Court, to enjoin the clerk and district attorney from making out and certifying the transcript of the record, upon the ground that the order allowing the appeal was entered without authority of law, and that the appeal had been properly revoked and set aside. Result was, that the judge refused to grant the injunction; but he reiterated his opinion that no appeal was pending, and remarked that the procuring copies for the United States, in such a case, was a fraud upon the government and was not to be tolerated.

Six times the demand was made of the clerk for the transcript, and the request, as often as it was made, was refused. Such demand was made by the special counsel of the United States, and by the district attorney, and by the authority and direction of the attorney-general. Throughout, the clerk refused to furnish the transcript; but finally consented to furnish the attorney-general a copy of each paper in the case; and those separate papers, it is understood, were appended together and duly certified by the district attorney, as appears in the record.

7. Assuming the facts to be as stated, it is obvious that the case falls within the exception to the general rule, as recognized and established in the case of United States v. Booth, to which reference has already been made. Writ of error in that case was returnable at the December Term, 1855, and it was accompanied by a citation requiring the defendant to appear on the first day of that term. No return, however, was made at that time, and on the first day of February following, the attorney-general filed affidavits, showing that the writ of error and citation had been duly served, and that the State court had directed the clerk to make no return. Whereupon this court passed an order commanding the clerk of the State court to make the required return, and the cause was continued; but none such was ever made. Unable to procure any such return, the attorney-general was allowed, on the 27th day of February, 1857, to file the copy of the record produced when the application was made for the writ of error, and on the sixth day of March following, the court ordered that it should have the same effect as if it had been regularly filed by the clerk. Evidently the power to retain jurisdiction in the case before the court is even better supported than it was in that case, because the transcript in this case is duly certified under a new provision in a subsequent act of Congress.

8. Mandamus unquestionably is the proper remedy where the appeal is refused, and it is an appropriate remedy to compel the production of the transcript. Strong doubts are entertained, however, whether it would have been an adequate remedy in this case, because it is more than probable that, if the motion had been made, the affidavits showing the refusal of the clerk to furnish a copy, would have been met by counter affidavits, showing that the appeal had been vacated; and in that state of the case it would have been difficult for the court to have decided what was right and proper between the parties, whitout the opportunity of inspecting the record.

Grant, however, that the appellants might have had an adequate remedy in a motion to this court for a mandamus, still it is clear that they had a right, under the circumstances of this case, to invoke the benefit of the special provision in the act of Congress referred to as a cumulative means of securing their rights. Application was accordingly made to the district attorney, and he, without delay, made the certificate exhibited in the record. Conclusion therefore is, that the case, in either point of view, is regularly before the court, and all the motions to dismiss are overruled.

9. Regarding the case as regularly before the court, it becomes necessary to examine the merits of the claim. Some suspicion attaches to the claim, because it is made for four leagues of land, whereas the only document introduced in support of it, which is of the least probative force, represents the original claimant as having asked for but three leagues. Document referred to purports to be the petition of the claimant to the governor, and there is appended to it the usual informe; but there is no concession or grant, nor is there any satisfactory evidence that any title of any kind was ever issued by the governor to the claimant. He states in his petition to the land commissioners, that he obtained the map in the record from the proper officers of the department; but the alleged fact is not satisfactorily proved. Four witnesses were examined by the claimant before the land commissioners, but only one of the number pretended that he had ever seen the grant, and his statements are quite too indefinite to be received as satisfactory proof.

Instead of proving possession under the grant, it is satisfactorily shown that he never occupied it at all; and it is doubtful if he ever saw the premises during the Mexican rule. Land commissioners rejected the claim, but before it came up for hearing in the District Court, his attorney had been appointed district attorney of the United States; and the proofs show that he conveyed two leagues of the land to the district attorney. Circumstances of the confirmation of the claim in the District Court are fully stated in the opinion of this court given when the mandate was revoked and recalled. Comment upon those circumstances is unnecessary, except to say that the confirmation was fraudulently obtained.

Although the decree was fraudulently obtained, still, inasmuch as it is correct in form, it is sufficient to sustain the appeal for the purpose of correcting the error. Party who procured it cannot be allowed to object to its validity as a means of perpetuating the fraud, especially as he did not appeal from the decree.

The decree of the District Court is therefore reversed, and the cause remanded, with directions to

DISMISS THE PETITION.


text: Talk:United States v. Gomez (70 U.S. 752)/Opinion of the Court


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The Herald

APPEAL from a decree of the Circuit Court at Philadelphia condemning the Herald and cargo as prize of war, for breach of blockade in an attempted exit from Beaufort, North Carolina; in part as enemy's property, &c. The case was thus:

On the 27th April, 1861, President Lincoln, reciting the insurrectionary action which had been for some time going on in the South, and the blockade which he had, on the 19th previous, announced of ports of South Carolina, &c.; reciting also insurrection in North Carolina and Virginia, proclaimed that

'An efficient blockade of the ports of those States WILL also be established.'

And on the 30th of the same month Commodore Pendergrast, commanding the Home Squadron, issued the following manifesto from his flag-ship:

UNITED STATES FLAG-SHIP CUMBERLAND,

OFF FORTRESS MONROE, VA., April 30, 1861.

To all whom it may concern:

I hereby call attention to the proclamation of his Excellency, Abraham Lincoln, President of the United States, under date of April 27, 1861, for an efficient 'blockade' of the ports of Virginia and North Carolina, and warn all persons interested that I have a sufficient naval force HERE for the purpose of carrying out that proclamation.

All vessels passing the capes of Virginia, coming from a distance, and ignorant of the proclamation, will be warned off; and those passing Fortress Monroe will be required to anchor under the guns of the fort, and subject themselves to an examination.

G. J. PENDERGRAST,

Commanding the Home Squadron.

In this state of public announcements, emanating as mentioned, the 'Herald,' a British built, and originally a wholly British owned vessel, arrived at Boston on the 20th May, 1861. She carried a British register and a British flag. A portion of her was owned, however, by De Wolf, a merchant of New York. This interest, acquired in 1854, was never registered, nor was it evidenced by any proprietary document.

On May 24, 1861, while lying in Boston harbor, the vessel was, as alleged, chartered, through the master, to a Mr. Williams, a citizen of the United States and a resident merchant of New York, for a voyage from Boston to Beaufort, and thence to Liverpool. Three copies of the charter appear to have been executed by the master.

Having effected this charter with Williams at New York, the master returned to Boston, and cleared his vessel at the custom-house there for Turk's Island. 'The reasons why I cleared for Turk's Island,' said the master after capture, 'were, that I did not wish my crew to know that I intended to go to a Southern port; and I also designed, in case I found Beaufort blockaded, to go next to Turk's Island for a cargo.'

With this clearance on board, the 'Herald,' on the 25th of May, set sail from Boston, without cargo, and arrived at Beaufort very early on the morning of the 9th of June. The master did not go in on arriving. He gave this account:

'The wind being then off shore, I hauled the brig up by the wind and fetched in close to the land, about twenty miles to the southward of Beaufort harbor, and then I tacked and stood off and on all that, the ninth day of June, till about seven or eight o'clock P. M., when and because the wind was ahead, and the lights at the entrance of the harbor being out, I anchored about seven miles to the southward of the entrance to Beaufort harbor, where I remained till about half-past one o'clock on the next morning, when, the wind being more favorable, I got under way and stood up towards Beaufort harbor; and on my way up, the morning being dark, I ran aground. I got off again, and proceeded up towards the harbor till daylight. Soon after I hove to, and set the English ensign at the fore as the signal for a pilot, who, in about half an hour, came alongside, and of whom I then asked if the port was or had been blockaded; and he answered me that it had not been and was not, and that no vessel of war had been seen off that port.'

He immediately reported his arrival to a Mr. Charles Parmlee, of Goldsboro, North Carolina, and delivered to him a sealed letter which he had received in New York from Mr. Williams, the charterer. Its contents could only be inferred by the court. Under the direction of Mr. Parmlee and his brother a cargo consisting wholly of the staples of North Carolina-turpentine, tar, rosin, tobacco, &c.-was shipped; a portion of it consigned by Parmlee, as 'agent,' to the consignees of the vessel at Liverpool, and the rest by various shippers of Newbern, Wilmington, Beaufort, and Petersburg, places in North Carolina then in war against the United States, to Fraser, Trenholm & Co., and W. A. and G. Maxwell & Co., of Liverpool; firms, the former by distinction, in close and active complicity with the rebel enemies of the United States.

The vessel remained at Beaufort about a month, taking in a cargo there, and at Morehead City, and meeting some opposition, as the captain testified, from the civil and military persons then in control, and who, he stated, supposed that the cargo might belong to merchants in the North, and contemplated a seizure of it. He sailed for Liverpool July 14th, got fairly out to sea-a hundred and forty-five miles from Beaufort-testifying that it was not till then that 'he saw or heard of any blockade or blockading vessel.' He then heard of it; being captured. He had no copy of the charter aboard. On his examination in preparatorio, while saying that he 'had seen no blockade yet,' he added:

'About three weeks before I came out of Beaufort I saw what I supposed to be a man-of-war, from the tops of the buildings. I saw two spars, but no hull, with a glass, and saw she was standing to the northward, almost a week before sailing. The British ship Gladiator came near the bar. These are all the men-of-war I saw before the capture.'

A ship-hand, Homer, said that he knew no cause why the vessel had been captured, other than that she came out of a Southern port. Interrogated as to what vessels he had seen, and what notice was given, he added:

'During the time we were lying at Beaufort, I saw three different men-of-war off the harbor; and during the last two weeks we were there I saw a man-of-war as often as once in three days. No notice or warning, as far as I know, was given to the captured vessel.'

The mate of the vessel testified-

'I suppose we were captured because we sailed from a Southern port; but we saw no blockading force off Beaufort. It was reported three times from Fort Macon that a man-of-war was off the harbor, but I only saw one while we were lying there.'

A letter, from which what follows are extracts, found on the Herald, gave some information on the same matter:

BEAUFORT, July 11, 1861.

MESSRS. FRASER, TRENHOLM & Co., Liverpool:

GENTLEMEN: We take the liberty of addressing you these lines, as our country has become divided into North and South, and we, as full-blooded Southerners, shall carry this matter out.

Formerly our business has been done principally by New York merchants. We have dealt with them and owned vessels together, and have no fault to find with them directly, only they are North and we are South. Circumstances have changed, and we, as well as a great many of our Southern friends, intend to change our business.

We are carrying on the distillery business, and buying spirits, and hope soon to have the chance of making you a good shipment from this place. T. Thomas and ourselves have on board the Herald ninety casks of spirits shipped to you.

There is a great chance here for any English vessel that comes and can get in to this place clear of the Federal men-of-war. When they fall in with an English vessel bound to a Southern port they only order them off, and not let them enter. There is no blockade at this place that can be considered as such up to this time. There has been but one steamer, off this place, near enough to see the hull, and no time near enough to tell what she was by her colors. There has been a smoke seen off in the offing at one time, and it was thought to be one of the blockading squadron; can't say whether it was one or not. I see no difficulty for your vessels; if they should be ordered off, they could go elsewhere, and if they get in they can get a splendid freight.

Very respectfully, yours, &c.,

THOMAS DUNCAN & CO.

The libel demanded the forfeiture of the brig and cargo as prize of war. The master prayed restoration of the vessel in behalf of six alleged owners, all British subjects, of whom five were domiciled in Nova Scotia, and one in New York. He also prayed restitution of a part of the cargo, which consisted wholly of turpentine, tar, rosin, and tobacco, products of North Carolina or Virginia, in behalf of owners living in North Carolina; and of another part, in behalf of persons belived to have an interest, residing in New York, South Carolina, and in England. Restitution of the rest of the cargo was claimed by Williams, already mentioned as a merchant, native and resident of New York. No proof of ownership of cargo was made, except in behalf of Williams and the parties living in North Carolina.

Condemned, as already mentioned, by Grier, J., the case was now here for review.

Mr. Assistant Attorney-General Ashton, for the United States; Mr. Donnohue, contra.

The CHIEF JUSTICE delivered the opinion of the court.

title: The Herald


text: Talk:The Herald

title: Talk:The Herald


text:
The Herald/Opinion of the Court

The principal question in this case is, was the brig lawful prize? She was a neutral vessel, and the answer to the question must depend on her employment at the time of capture.

The actual establishment of the effective blockade of the ports of North Carolina, in pursuance of the President's proclamation of the 27th of April, 1861, was notified by Commodore Prendergast on the 30th April; and it is a matter of history that the notification, as well as the proclamation, became at once well known throughout the country. It is impossible to believe that the master of the Herald, at Boston, on the 22d May, could have been ignorant of facts so notorious. His conduct on arrival near Beaufort strongly indicates his apprehension of capture. The lights at the entrance of the harbor had been destroyed by the insurgents, and yet, though arriving in the morning of the 9th, he lay off and on, some twenty miles south, all that day, and went in during the succeeding night.

We know of no case of prize in which a captured vessel has been restored under such circumstances; but we need not rest the decision of this case upon this evidence of attempt to enter a blockaded port.

The vessel, when once within the harbor, proceeded to take in a cargo. Some difficulties were encountered from the action of the rebel military authorities, and from the disturbed condition of the country; but the lading was at length completed, and the vessel sailed, as already stated.

During the month which elapsed from arrival till departure, the effectiveness and stringency of the blockade were materially increased. The master, it is true, asserts that he still remained ignorant of its existence; but the evidence shows that it was the common topic of conversation in Beaufort and Morehead City; and he says himself that, while he was taking in cargo, about three weeks before sailing, he saw from the tops of the buildings, with a glass, a man-of-war off the harbor. It remained there, for he saw the same vessel about one week before sailing. Another witness, a hand on the brig, says, during the time the vessel was lying at Beaufort, he saw three different men-of-war off the harbor; and during the last two weeks he saw a man-of-war as often as once in three days. A letter from one of the shippers of the cargo, found on the brig, informs his correspondent that 'a smoke had been seen off in the offing at one time, and it was thought to be one of the blockading squadron.'

It would be difficult to make more conclusive proof of the existence of the blockade, or of notice of the fact to the master of the captured vessel.

The cargo was shipped to be conveyed from the port by this brig, and was in the same offence.

The facts of the case supply other grounds of condemnation. The shares of the vessel owned in New York, and the portions of the cargo belonging to Williams, of New York, might be condemned for trading with the enemy; and other portions of the cargo might be condemned as enemy's property; but it is enough that vessel and cargo were equally involved in the attempt to violate the blockade. Both were rightfully captured.

DECREE AFFIRMED.

title: The Herald/Opinion of the Court


text: Talk:The Herald/Opinion of the Court

title: Talk:The Herald/Opinion of the Court


text:
Dehon v. Bernal

APPEAL from a decree of the District Court of the United States for the Northern District of California, confirming a survey of a Mexican grant.

The appeal was not taken by the United States, nor by the claimant whose grant was confirmed, but by one Dehon, who was permitted to intervene in the District Court, on the ground that the survey covered land in which he was interested. He asserted that the survey covered land owned by him under a deed from Bishop Allemany. The Allemany grant had been confirmed, surveyed, and patented, and was found to cover a part of this survey as first made. To the extent of the interference, the District Court modified this survey. But the intervenor was still dissatisfied, and appealed to this court, because, as he said, it covers other land which he claims, and also because it was erroneously located.

While exhibiting a number of deeds, Dehon, however, did not show any interest in the land covered by the modified survey, derived either from the government of Mexico or that of the United States.

The decree confirming the grant described the lot as a lot two hundred varas square, lying on the south side of an arroyo or stream, sixty varas from the northwestern corner of the Mission of Dolores; the northeast corner of the lot being one hundred and fifty varas from the northeast corner of the Mission. The arroyo was found, and the Mission is well known. It was impossible, however, so to locate the lot as to make the arroyo its northern boundary, and bring its northeast corner within any reasonable approximation to the distance stated from the northeast corner of the Mission. Under these circumstances, the surveyor located it so that the northeast corner of the lot was one hundred and sixtyone varas from the northeast corner of the Mission, and the lot was fifty-five varas from the northwest corner of the Mission. This placed the northern boundary of the lot some distance south of the arroyo.

Mr. D.B. Eaton for the appellant; Mr. Cope, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Dehon v. Bernal


text: Talk:Dehon v. Bernal

title: Talk:Dehon v. Bernal


text:
Dehon v. Bernal/Opinion of the Court

1. When the United States and the claimant to whom a Mexican grant has been confirmed are both satisfied with its location, we think that any other person who seeks to contest such a location must show some title, legal or equitable, to some part of the land covered by the survey, before the court will disturb it at his instance. And though the District Court may, upon slight showing, permit a person to intervene to protect any interest he may have, we are of opinion that, on the hearing, he must show some title, legal or equitable, to the land in dispute, before the court is justified in disturbing the survey in his interest. In the present case, the court did modify the survey, so as to exclude all the land to which the appellant showed such title.

2. The survey conforms as nearly to the decree confirming the grant as it can well be made to do. It is true that the location as made by the surveyor places the northern boundary of the lot some distance south of the arroyo; but, as all the prescribed elements of location cannot be complied with, we do not see how it can be located more in conformity with the decree than it is.

And as the appellant has not shown that he is prejudiced by the survey as it is confirmed by the District Court, its decree is AFFIRMED WITH COSTS.

title: Dehon v. Bernal/Opinion of the Court


text: Talk:Dehon v. Bernal/Opinion of the Court


text: Stearns v. The United States

title: Stearns v. The United States


text: Talk:Stearns v. The United States

title: Talk:Stearns v. The United States


text:
Stearns v. The United States/Opinion of the Court

THE fourteenth rule of this court declares that no certiorari for diminution of the record shall be awarded unless the motion be made at the first term of the entry of the cause, and 'unless upon special cause shown to the court accounting satisfactorily for the delay.'

The present case having been continued to the next term, Mr. Cushing asked leave, although more than one term had passed since the entry of the cause, to file a suggestion of diminution of the record. He stated that the counsel in the case in California had been unaware of the rule requiring such a suggestion and motion to be made at the first term; for which reason they had not sent on the papers at an earlier day; and he submitted the fact as a sufficient reason for granting the motion now, inasmuch as the cause having been already continued till the next term, the granting of it would not cause and delay in the hearing.

In support of this view, he cited Clark v. Hacket and Morgan v. Curtenius.

THE COURT granted leave, and ordered the certiorari.


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