text:
Blyew v. United States

ERROR to the Circuit Court for the District of Kentucky; the case being this:

By the Revised Statutes of Kentucky, published A.D. 1860, it is enacted:

Under the act of 9th April, 1866 (14 Stat. at Large, 27), sometimes called 'The Civil Rights Bill,' which gives jurisdiction to the Circuit Court of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts of the State or locality where they may be, any of the rights given by the act (among which is the right to give evidence, and to have full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens), a criminal prosecution is not to be considered as 'affecting' mere witnesses in the case, nor any person not in existence. United States v. Ortega (6 Wheaton, 467), affirmed.

'That a salve, negro, or Indian, shall be a competent witness in the case of the commonwealth for or against a salave, negro, or Indian, or in a civil case to which only negroes or Indians are parties, but in no other case.'

This enactment being in force in Kentucky, the thirteenth amendment to the Constitution was proclaimed as having been duly ratified, and a part of it, December 18th, 1865, is in these words:

'SECTION 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

'SECTION 2. Congress shall have power to enforce this article by appropriate legislation.'

In this state of things, Congress on the 9th April, 1866, passed an act entitled 'An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication.' The first section of that act declared all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, to be citizens of the United States, and it enacted that:

'Such citizens, of every race and color, shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.'

The second section enacted:

'That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right, secured or protected by this act, or to different punishment, pains, or penalties, on account of such person having at any time been held in a condition of slavery, or involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, or by reason of his color, or race, than is prescribed for the punishment of which persons, shall be deemed guilty of a misdemeanor, and shall, on conviction thereof, be punished,' &c.

Then followed the third section, which contains this enactment:

'That the District Courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against the provisions of this act, and also concurrently with the Circuit Courts of the United States, of all causes, civil and criminal, affecting persons who are denied, or cannot enforce in the courts or judicial tribunals of the State, or locality, where they may be, any of the rights secured to them by the first section of the act.'

The section then provided for removal into the Federal courts of any suit or prosecution, civil or criminal, which had been, or might hereafter be, commenced against any such person for any cause whatever.

The sixth section rendered liable to fine and imprisonment any person who should obstruct an officer or other person in execution of process under the act, or should aid a person arrested to escape, or conceal a person for whose arrest a warrant had been issued.

In this state of things, two persons, Blyew and Kennard, were indicted October 7th, 1868, in the Circuit Court for the District of Kentucky, for the murder, on the 29th of August preceding, within that district, of a colored woman named Lucy Armstrong. The indictment contained three counts, all of them charging the murder in the usual form of indictments for that offence, and with sufficient certainty. But, in order to show jurisdiction in the Circuit Court of the United States, an averment was made in the first court that the said Lucy Armstrong was a citizen of the United States, having been born therein, and not subject to any foreign power; that she was of the African race, and was above the age of seventy-five years; that Blyew and Kennard (the persons indicted) were white persons, each of them at the time of the alleged killing and murder above the age of eighteen years; that the said killing and murder, done and committed, as averred, were seen and witnessed by one Richard Foster, and one Laura Foster, citizens of the United States, having been born therein and not subject to any foreign power, both of the African race; and that the said Lucy Armstrong, Richard Foster, and Laura Foster were then and there denied the right to testify against the said Blyew and Kennard, or either of them, concerning the said killing and murder, in the courts and judicial tribunals of the State of Kentucky, solely on account of their race and color. The second and third counts contained substantially the same averments.

To this indictment the defendants pleaded specially that before it was found they had been in custody of the authorities of the State, and, after examination, had been held to answer for the killing of Lucy Armstrong, which was the same offence as that charged in the Circuit Court; but on demurrer the plea was overruled, and the case went to trial upon the issues found by a replication to the plea of not guilty. During the progress of the trial the court sealed several exceptions to the admission of evidence offered by the United States, and a verdict of guilty having been returned, a motion was made in arrest of judgment, which the court also overruled. The ground alleged for this motion was, that 'the facts stated in the indictment did not constitute a public offence within the jurisdiction of the court.'

There were thus three questions presented by the record:

First. Whether the Circuit Court had jurisdiction of the offence charged in the indictment?

Second. Whether the court erred in sustaining the de murrer to the defendants' special plea?

Third. Whether the evidence to which the defendants objected should have been received?

Of course, if the first question was resolved in the negative, any resolution of the remaining ones became unnecessary.

The case was brought here on error under the tenth section of the already mentioned act of Congress, which provides 'that, upon all questions of law arising in any cause under the provisions of this act, a final appeal may be taken to the Supreme Court of the United States.'

The murder for which the defendants were convicted, and as they now sought to show illegally, had been one of peculiar atrocity. A number of witnesses testified that on a summer evening of 1868 (August 29th), towards eleven o'clock, at the cabin of a colored man named Jack Foster, there were found the dead bodies of the said Jack, of Sallie Foster, his wife, and of Lucy Armstrong, for the murder of whom Blyew and Kennard stood convicted; this person, a blind woman, over ninety years old, and the mother of Mrs. Foster; all persons of color; their bodies yet warm. Lucy Armstrong was wounded in the head; her head cut open as with a broad-axe. Jack Foster and Sallie, his wife, were cut in several places, almost to pieces. Richard Foster, a son of Jack, who was in his seventeenth year, was found about two hundred yards from the house of his father, at the house of a Mr. Nichols, whither he had crawled from the house of his father, mortally wounded by an instrument corresponding to one used in the killing of Lucy Armstrong, Jack and Sallie Foster. He died two days afterwards from the effects of his wounds aforesaid, having made a dying declaration tending to fix the crime on Blyew and Kennard. Two young children, girls, one aged ten years and the other thirteen (this last, the Laura Foster above mentioned), asleep in a trundle-bed, escaped, and the latter was a witness on the trial.

Evidence was produced on the part of the United States, that a short time previous to the murder, Kennard was heard to declare, in presence of Blyew, 'that he (Kennard) thought there would soon be another war about the niggers; that when it did come he intended to go to killing niggers, and he was not sure that he would not begin his work of killing them before the war should actually commence.'

Such a case, and the withdrawal of it from the State courts, naturally excited great interest throughout the State of Kentucky, and by a joint resolution of the General Assembly of that State, passed at its adjourned session in 1869, the governor of the State was directed to cause the commonwealth above mentioned to be represented in this court. Being brought here the case was very fully and interestingly argued; the point to which counsel here addressed themselves chiefly being the one already stated as the first one presented by the record, the point of the jurisdiction of the Circuit Court.

Messrs. J. S. Black and I. Caldwell, for the State of Kentucky, after remarking that this murder was committed on the soil of Kentucky and within her limits; that it was an insult to her dignity and an outrage on the peace of a community which, by the organic law of the land, was placed under her sole protection; that her law was offended by it, and that none but she had a right to enter into judgment with the perpetrators of it; that no other state, sovereignty, prince, or potentate of earth had made or could make any law which would punish that offence at that place; that the United States had never pretended that a murder within the limits of a State was an offence against them, and that it was no more an offence against the United States than it was against the republic of France or the empire of Germany, contended that the Circuit Court had no jurisdiction, because—

1st. Whether the act of Congress did or did not embrace this case, it was a sheer, flat breach of the Constitution; that the amount, quantity, and extent of the judicial power of the United States was defined by and limited by the 2d section of Article III of the Constitution, which says:

'1. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects.'

Thus far the power went and no farther. By no construction not even the loosest-could it be extended to the punishment of offences against the State. Yet this act gave exclusive jurisdiction to the Federal courts and a total denial of all right on the part of the State to interfere in any case that affects a negro; which a case no doubt does where a negro is a party. Such a condition of things could not be tolerated by any State, even if it extended to great cases. But the act extended the jurisdiction of the Federal courts exclusively of that of the State to all cases affecting negroes; i. e., to all cases where negroes are parties. It extended it to the smallest and lowest case, to assaults and batteries, to small thefts, to the slightest breaches of police regulations; and, if a negro robbed a hen-roost, the suffering party was now obliged either to let him go unpunished or to take him for justice to wherever the Federal court sat, often hundreds of miles off. The consequence was that nine-tenths of the lower class of crimes committed by negroes went now unpunished in Kentucky. The act of Congress had, in cases where it did apply, dislocated all the machinery of the State courts and rendered them powerless to perform their duty.

But the learned counsel contended,

2d. That there was no jurisdiction because, whether the enactment was constitutional and valid, or unconstitutional and void, this case was not within it. This case did not affect negroes. It was a proceeding by the State against white men. The United States v. Ortega, which arose on the above-quoted clause of the Constitution which gives the Federal courts jurisdiction in 'cases affecting ambassadors,' decided that a criminal case affects nobody but the party accused and the public.

If the act of Congress be constitutional, and if in such a case as the present negroes are affected by it-that is to say, when the persons prosecuted are white men and only the witnesses are negroes-any man that pleases may set out with a pre-expressed determination and commit any crime that he pleases against the State of Kentucky, and he will do it with impunity if he will only take a negro along with him when he does the deed; or, if he is not so happy as to have done it in the presence of one of that race, if he will hunt up a black man and make a confession in his presence afterwards. It matters not whether the testimony of the black witness be important or not so. The same fact may be testified to by twenty white men, but if there be one negro, that is sufficient (according to the theory of the court below) to oust the State jurisdiction and vest it exclusively in the Federal courts. If a fight take place between white men at a barbecue, or militia muster, or cross-roads meeting-though it concern nobody but white men-they cannot be indicted for the offence in any court of Kentucky if one single negro in the whole crowd saw the thing done; and if actually so indicted, white men, in order to be acquitted, need only prove themselves guilty and that their crime was committed in the presence of a negro! To such results does the view of the court below, that a case between the State and white men 'affects' negroes, if any negro is a witness, necessarily lead.

Mr. A. T. Akerman, Attorney-General, and Mr. B. H. Bristow, Solicitor-General, contra:

1. The thirteenth amendment to the Constitution worked a radical change in the condition of the United States. But it did not execute and was not meant to execute itself. Appropriate Congressional legislation was provided for. Most of the members of the Congress who passed the civil rights bill were members of the Congress which framed the thirteenth amendment. This fact adds to the probability of conformity to the purpose of the amendment, independently of which special argument presumptions are always in favor of the constitutionality of an act of Congress. Indeed, till the beginning of the rebellion, this court rarely decided one unconstitutional. The cases of Marbury v. Madison and perhaps Scott v. Sandford, are the only ones we recall. If the thirteenth amendment be liberally construed the act of Congress is legislation quite appropriate. The amendment as a remedial one must be so construed. The obvious intention was to remove an existing evil, which was recognized as the cause of the civil strife in which the country was engaged, and to confer freedom upon the slave as a reward for his military service in the preservation of the government. It is unreasonable to suppose that the framers of this amendment, with this end in view, should have been content to give to these slaves only that small portion of freedom which the so-called free blacks had theretofore enjoyed. In this age no man can be called free who is denied the right to make contracts, sue and be sued, and to give evidence in the courts. No man is really free who is not protected, by law, from injury. So long as he is denied the right to testify against those who violate his person or his property he has no protection, and is denied the power to defend his own freedom.

The condition of things in Kentucky under its law excluding the evidence of blacks where white persons have committed crime is disgraceful to a Christian community. A band of whites shall set upon and murder half a congregation of blacks, their minister included, and though a hundred blacks who saw the massacre survive, and can identify the murderers, conviction is impossible. The wisdom and appropriateness of the legislation of Congress, as shown by the act now in question, cannot be better illustrated than by the facts of this case. At night, in their own humble cabin, an unoffending and defenceless old colored man, his infirm mother more than ninety years of age, his wife, and son, are murdered in a most shocking manner by two brutal white men, actuated by no other motive than that of avowed hostility to the black race. The son lingers long enough to tell the facts of this horrible transaction, and a little sister, twelve or thirteen years of age, survives the cruel wounds inflicted upon her at the same time. The dying declarations of the one and the parol testimony of the other in court, taken in connection with circumstantial evidence produced at the trial, establish the guilt of the accused beyond all reasonable doubt. And yet under the law of the State the accused cannot be punished, because in Kentucky black men cannot give evidence of the crimes of white ones.

2. The case is embraced by the act. The murder did affect persons who were denied in the State courts rights which the act of Congress secured. It affected the murdered negro, the negro witnesses in the case, and the whole negro population of Kentucky. The United States v. Ortega does not apply. That case arose on a clause of the Constitution which gives the Federal court jurisdiction in all 'cases' of a particular sort. The act now under consideration employs the phrase 'causes, civil and criminal.' This is broader language, and, taken in connection with the title and subsequent sections of the act, must be understood in the sense of causes of civil action and causes of criminal prosecution. It cannot be said that in no case is any one affected by a cause who is not a party to the legal proceeding growing out of such cause. This was the view maintained on the Circuit, after great consideration, by Swayne, J., in United States v. Rhodes, which arose on this act of Congress, and where the same arguments were used against the jurisdiction as here.

[Some discussion, not material to be reported, was also had at the bar by the counsel on both sides, as to whether the case was properly brought here by writ of error; and also as to the respective jurisdictions of the District and Circuit Courts under the 2d and 3d sections of the act.]

Mr. Justice STRONG delivered the opinion of the court.

title: Blyew v. United States


text: Talk:Blyew v. United States

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title: Talk:Blyew v. United States


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

Addressing ourselves to the first of the questions presented by the record-the question of jurisdiction-it may be remarked that clearly the Circuit Court had no jurisdiction of the crime of murder committed within the district of Kentucky, unless it was conferred by the third section of the act of Congress of April 9th, 1866.

It must be admitted that the crimes and offences of which the District Courts are, by this section, given exclusive jurisdiction, are only those which are against the provisions of the act, or those enumerated in the second and sixth sections, and that the 'causes, civil and criminal,' over which jurisdiction is, by the second clause of the section, conferred upon the District and Circuit Courts of the United States concurrently, are other than those of which exclusive jurisdiction is given to the District Courts. They are described as causes 'affecting persons who are denied, or cannot enforce in the courts of judicial tribunals of the State, or locality, where they may be, any of the rights secured to them by the first section of the act.'

Was, then, the prosecution, or indictment, against these defendants a cause affecting any such person or persons? If it was, then by the provisions of the act it was within the jurisdiction of the court, and if it was not, that court had no jurisdiction.

It was, the record shows, an indictment for the murder of Lucy Armstrong, a citizen of the United States of the African race, and it contained an averment that other citizens of the United States of the same race, witnessed the alleged murder. It contained also an averment that those other persons, namely, Richard Foster and Laura Foster, as well as the deceased Lucy Armstrong, were, on account of their race and color, denied the right to testify against the defendants, or either of them, of and concerning the killing and murder, in the courts and judicial tribunals of the State of Kentucky.

We are thus brought to the question whether a criminal prosecution for a public offence is a cause 'affecting,' within the meaning of the act of Congress, persons who may be called to testify therein. Obviously the only parties to such a cause are the government and the persons indicted. They alone can be reached by any judgment that may be pronounced. No judgment can either enlarge or diminish the personal, relative, or property rights of any others than those who are parties. It is true there are some cases which may affect the rights of property of persons who are not parties to the record. Such cases, however, are all of a civil nature, and none of them even touch rights of person. But an indictment prosecuted by the government against an alleged criminal, is a cause in which none but the parties can have any concern, except what is common to all the members of the community. Those who may possibly be witnesses, either for the prosecution or for the defence, are no more affected by it than is every other person, for any one may be called as a witness. It will not be thought that Congress intended to give to the District and Circuit Courts jurisdiction over all causes both civil and criminal. They have expressly confined it to causes affecting certain persons. And yet, if all those who may be called as witnesses in a case, and who may be alleged to be important witnesses, were intended to be described in the class of persons affected by it, and if the jurisdiction of the Federal courts can be invoke by the assertion that there are persons who may be witnesses, but who, because of their race or color, are incompetent to testify in the courts of the State, there is no cause either civil or criminal of which those courts may not at the option of either party take jurisdiction. The statute of Kentucky which was in existence when this indictment was found, and which denied the right of Richard Foster and Laura Foster to testify in the courts of the State, enacted as follows: 'that a slave, negro, or Indian shall be a competent witness in the case of the commonwealth for or against a slave, negro, or Indian, or in a civil case to which only negroes or Indians are parties, but in no other case.' It will be observed that this statute prohibits the testimony of colored persons either for or against a white person in any civil or criminal cause to which he may be a party. If, therefore, they are persons affected by the cause, whenever they might be witnesses were they competent to testify, it follows that in any suit between white citizens, jurisdiction might be taken by the Federal courts whenever it was alleged that a citizen of the African race was or might be an important witness. And such an allegation might always be made. So in all criminal prosecutions against white persons a similar allegation would call into existence the like jurisdiction. We cannot think that such was the purpose of Congress in the statute of April 9th, 1866. It would seem rather to have been to afford protection to persons of the colored race by giving to the Federal courts jurisdiction of cases, the decision of which might injuriously affect them either in their personal, relative, or property rights, whenever they are denied in the State courts any of the rights mentioned and assured to them in the first section of the act.

Nor can it be said that such a construction allows little or no effect to the enactment. On the contrary, it concedes to it a far-reaching purpose. That purpose was to guard all the declared rights of colored persons, in all civil actions to which they may be parties in interest, by giving to the District and Circuit Courts of the United States jurisdiction of such actions whenever in the State courts any right enjoyed by white citizens is denied them. And in criminal prosecutions against them, it extends a like protection. We cannot be expected to be ignorant of the condition of things which existed when the statute was enacted, or of the evils which it was intended to remedy. It is well known that in many of the States, laws existed which subjected colored men convicted of criminal offences to punishments different from and often severer than those which were inflicted upon white persons convicted of similar offences. The modes of trial were also different, and the right of trial by jury was sometimes denied them. It is also well known that in many quarters prejudices existed against the colored race, which naturally affected the administration of justice in the State courts, and operated harshly when one of the race was a party accused. These were evils doubtless which the act of Congress had in view, and which it intended to remove. And so far as it reaches, it extends to both races the same rights, and the same means of vindicating them.

In view of these considerations we are of opinion that the case now before us is not within the provisions of the act of April 9th, 1866, and that the Circuit Court had not jurisdiction of the crime of murder committed in the district of Kentucky, merely because two persons who witnessed the murder were citizens of the African race, and for that reason incompetent by the law of Kentucky to testify in the courts of that State. They are not persons affected by the cause.

We need hardly add that the jurisdiction of the Circuit Court is not sustained by the fact averred in the indictment that Lucy Armstrong, the person murdered, was a citizen of the African race, and for that reason denied the right to testify in the Kentucky courts. In no sense can she be said to be affected by the cause. Manifestly the act refers to persons in existence. She was the victim of the frightful outrage which gave rise to the cause, but she is beyond being affected by the cause itself.

The conclusions to which we have come are sustained, we think, fully by the judgment of this court in United States v. Ortega, in which the opinion was delivered by Mr. Justice Washington. It was the case of an indictment in the Circuit Court for offering violence to the person of the Spanish minister, contrary to the law of nations and the act of Congress. The second section of the third article of the Constitution ordains that the judicial power of the United States shall extend to all cases affecting ambassadors, other public ministers and consuls, and that in all cases affecting ambassadors, other public ministers and consuls, the Supreme Court shall have original jurisdiction. The defendant was convicted, and on motion in arrest of judgment, the question was presented to this court (and it was the only one decided), whether it was a case affecting an ambassador, or other public minister. The court unanimously ruled that it was not. The violence out of which the indictment grew was committed upon a public minister, and he was a competent and material witness. But he was ruled to be not a person affected by the case, because it was a public prosecution instituted and conducted by and in the name of the United States, and for the purpose of vindicating the laws of nations and that of the United States, in the person of a public minister, offended by an assault committed on him by a private individual. It is, said the court, a case then, which affects the United States and the individual whom they seek to punish; but one in which the minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution, or in the costs attending it. What was meant by the phrase 'a case affecting,' was thus early defined, and we are bound to presume that Congress, when they used the same word 'affecting' in the act of 1866, intended to have it bear its defined meaning. This is according to a well-known rule of construction.

An attempt has, however, been made to discriminate between the words 'case affecting,' as found in the constitutional provision, and the words 'cause affecting,' contained in the act of Congress. We are unable to perceive any substantial ground for a distinction. The words 'case' and 'cause' are constantly used as synonyms in statutes and judicial decisions, each meaning a proceeding in court, a suit, or action. Surely no court can have jurisdiction of either a case or a cause until it is presented in the form of an action. We regard, therefore, The United States v. Ortega as an authority directly in point to the effect that witnesses in a criminal prosecution are not persons affected by the cause. It necessarily results from this that jurisdiction of the offence for which these defendants were indicted, was not conferred upon the Circuit Court by the act of Congress.

It is unnecessary, therefore, to consider the other questions presented by the record.

JUDGMENT REVERSED.

The CHIEF JUSTICE was not present at the argument, and took no part in the judgment.

Mr. Justice BRADLEY, with whom concurred Mr. Justice SWAYNE, dissenting.


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


text:
Blyew v. United States/Dissent Bradley

Mr. Justice BRADLEY, with whom concurred Mr. Justice SWAYNE, dissenting.

I dissent from the opinion of the court in this case for the following reasons:

The civil rights bill (passed April 9th, 1866, and under which the indictment in this case was found and prosecuted) was primarily intended to carry out, in all its length and breadth, and to all its legitimate consequences, the then recent constitutional amendment abolishing slavery in the United States, and to place persons of African descent on an equality of rights and privileges with other citizens of the United States. To do this effectually it was not only necessary to declare this equality and impose penalties for its violation, but, as far as practicable, to counteract those unjust and discriminating laws of some of the States by which persons of African descent were subjected to punishments of peculiar harshness and ignominy, and deprived of rights and privileges enjoyed by white citizens.

This general scope and object of the act will often furnish us a clue to its just construction. It may be remarked, however, that the terms of the act are broad enough to embrace other persons as well as those of African descent, but that is a point not now in question in this case.

The first section declares that all persons born in the United States, not subject to a foreign power, and not including untaxed Indians, are citizens of the United States, and that such citizens, of every race and color, without regard to previous condition of slavery, shall have the same right, in every State and Territory in the United States, to make and enforce contracts; to sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law or custom to the contrary notwithstanding.

This is the fundamental section of the act. All that follows is intended to secure and vindicate, to the objects of it, the rights herein declared, and to establish the requisite machinery for that end.

This section is in direct conflict with those State laws which forbade a free colored person to remove to or pass through the State, from having firearms, from exercising the functions of a minister of the gospel, and from keeping a house of entertainment; laws which prohibited all colored persons from being taught to read and write, from holding or conveying property, and from being witnesses in any case where a white person was concerned; and laws which subjected them to cruel and ignominious punishments not imposed upon white persons, such as to be sold as vagrants, to be tied to the whipping-post, &c., &c. All these, and all other discriminations, were intended to be abolished and done away with.

The second section makes it a misdemeanor, punishable by fine or imprisonment, for any person, under color of any law or custom, to deprive any inhabitant of a State or Territory of any right secured by the act, or to subject him to different punishment or penalties on account of his having been a slave, or by reason of his color or race, than is prescribed for the punishment of white persons.

The third section proceeds to confer upon the District Courts of the United States, exlusive of the State courts, jurisdiction to try these offences, and then follows the clause under which the indictment in the present case was found, declaring that the said District Courts shall also have cognizance, concurrently with the Circuit Courts of the United States, 'of all causes, civil and criminal, affecting persons who are denied, or cannot enforce in the courts or judicial tribunals of the State, or locality where they may be, any of the rights secured to them by the first section,' with right of removal of causes from State courts, &c. It is evident that the provisions of the second section, making it a criminal offence to deprive a person of his rights, or to subject him to a discriminating punishment, would fail to reach a great number of cases which the broad and liberal provisions of the first section were intended to cover and protect. The clause in question is intended to reach these cases, or, at least, a large class of them. It provides a remedy where the State refuses to give one; where the mischief consists in inaction or refusal to act, or refusal to give requisite relief; whereas the second section provides for actual, positive invasion of rights. Thus, if the State should refuse to allow a freedman to sue in its courts, thereby denying him judicial relief, or should fail to provide laws for the punishment of white persons guilty of criminal acts against his person or property, thereby denying him judicial redress, there can be no doubt that the case would come within the scope of the clause under consideration. Suppose that, in any State, assault and battery, mayhem-nay, murder itself, could be perpetrated upon a colored man with impunity, no law being provided for punishing the offender, would not that be a case of denial of rights to the colored population of that State? Would not the clause of the civil rights bill now under consideration give jurisdiction to the United States courts in such a case? Yet, if an indictment should be found in one of those courts against the offender, the technical parties to the record would only be the United States as plaintiff and the criminal as defendant. Nevertheless could it be said, with any truth or justice, that this would not be a cause affecting persons denied the rights secured to them by the first section of the law?

The case before us is just as clearly within the scope of the law as such a case would be. I do not put it upon the ground that the witnesses of the murder, or some of them, are colored persons, disqualified by the laws of Kentucky to testify, but on the ground that the cause is one affecting the person murdered, as well as the whole class of persons to which she belonged. Had the case been simple assault and battery, the injured party would have been deprived of a right, enjoyed by every white citizen, of entering a complaint before a magistrate, or the grand jury, and of appearing as a witness on the trial of the offender. I say 'right,' for it is a right, an inestimable right, that of invoking the penalties of the law upon those who criminally or feloniously attack our persons or our property. Civil society has deprived us of the natural right of avenging ourselves, but it has preserved to us, all the more jealously, the right of bringing the offender to justice. By the common law of England the injured party was the actual prosecutor of criminal offences, although the proceeding was in the king's name; but in felonies, which involved a forfeiture to the crown of the criminal's property, it was also the duty of the crown officers to superintend the prosecution. And, although in this country it is almost the universal practice to appoint public and official prosecutors in criminal cases, yet it is the right of the injured party, and a duty he owes to society, to furnish what aid he can in bringing the offender to justice; and an important part of that right and duty consists in giving evidence against him.

To deprive a whole class of the community of this right, to refuse their evidence and their sworn complaints, is to brand them with a badge of slavery; is to expose them to wanton insults and fiendish assaults; is to leave their lives, their families, and their property unprotected by law. It gives unrestricted license and impunity to vindictive outlaws and felons to rush upon these helpless people and kill and slay them at will, as was done in this case. To say that actions or prosecutions intended for the redress of such outrages are not 'causes affecting the persons' who are the victims of them, is to take, it seems to me, a view of the law too narrow, too technical, and too forgetful of the liberal objects it had in view. If, in such a raid as I have supposed, a colored person is merely wounded or maimed, but is still capable of making complaint, and on appearing to do so, has the doors of justice shut in his face on the ground that he is a colored person, and cannot testify against a white citizen, it seems to me almost a stultification of the law to say that the case is not within its scope. Let us read it once more: 'The District Courts shall, concurrently with the Circuit Courts, have cognizance of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be, any of the rights secured to them by the first section of this act.'

If the case above supposed is within the act (as it assuredly must be), does it cease to be so when the violence offered is so great as to deprive the victim of life? Such a construction would be a premium on murder. If mere violence offered to a colored person (who, by the law of Kentucky, was denied the privilege of complaint), gives the United States court jurisdiction, when such violence is short of being fatal, that jurisdiction cannot cease when death is the result. The reason for its existence is stronger than before. If it would have been a cause affecting him when living, it will be a cause affecting him though dead. The object of prosecution and punishment is to prevent crime, a well as to vindicate public justice. The fear of it, the anticipation of it, stands between the assassin and his victim like a vindictive shade. It arrests his arm, and loosens the dagger from his grasp. Should not the colored man have the aegis of this protection to guard his life, as well as to guard his limbs, or his property? Should be not enjoy it in equal degree with the white citizen? In a large and just sense, can a prosecution for his murder affect him any less than a prosecution for an assault upon him? He is interested in both alike. They are his protection against violence and wrong. At all events it cannot be denied that the entire class of persons under disability is affected by prosecutions for wrongs done to one of their number, in which they are not permitted to testify in the State courts.

I am well aware of the case of Ortega, who was indicted in the Circuit Court for offering violence to the person of the Spanish minister. The defendant claimed that it was 'a case affecting a public minister,' and under the Constitution cognizable only in the Supreme Court. But the court, taking the strict and technical view, decided that, being a criminal case, in which the United States was plaintiff and the offender was defendant, they only were the parties whom the case affected. Conceding that this decision was good law for the purposes of that case, I do not feel that I am bound by it in this. The effect of that decision was, that the Constitution in giving the Supreme Court jurisdiction in cases affecting ambassadors, other public ministers and consuls, only intended to give these public persons the right to sue and be sued in the Supreme Court. In the case before us, I think Congress meant a great deal more than this when it gave the United States courts cognizance of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts of the State any of the rights secured by the first section of the act.

I have considered the case irrespective of the fact that the witnesses of the transaction were all colored people who, at the time this indictment was found, were denied the right to testify against white persons in Kentucky. I have placed it on the sole ground, that prosecutions for crimes committed against colored persons, are causes which, in the sense of the civil rights bill, most seriously affect them; and that in Kentucky they were denied the privilege of being witnesses in these causes. I do not mean to be understood as saying that every cause in which a colored person may be called as a witness, for that reason belongs to the cognizance of the United States courts. In ordinary cases of a civil character, the party calling such a person as a witness is the person affected. Such party, be he black or white, may except to the rejection of his witness, and bring the case to this court by writ of error from the State court of last resort under the 25th section of the Judiciary Act. A defendant in a criminal prosecution may do the same thing where a bill of exceptions is allowed in criminal cases.

To conclude, I have no doubt of the power of Congress to pass the law now under consideration. Slavery, when it existed, extended its influence in every direction, depressing and disfranchising the slave and his race in every possible way. Hence, in order to give full effect to the National will in abolishing slavery, it was necessary in some way to counteract these various disabilities and the effects flowing from them. Merely striking off the fetters of the slave, without removing the incidents and consequences of slavery, would hardly have been a boon to the colored race. Hence, also, the amendment abolishing slavery was supplemented by a clause giving Congress power to enforce it by appropriate legislation. No law was necessary to abolish slavery; the amendment did that. The power to enforce the amendment by appropriate legislation must be a power to do away with the incidents and consequences of slavery, and to instate the freedmen in the full enjoyment of that civil liberty and equality which the abolition of slavery meant.

In my opinion the judgment of the Circuit Court should be affirmed.

title: Blyew v. United States/Dissent Bradley


text: Talk:Blyew v. United States/Dissent Bradley


text:
Mason v. Rollins

MOTION by Mr. C. H. Hill, Assistant Attorney-General (Mr. Edward Roby, opposing), to dismiss three appeals from the Circuit Court for the Northern District of Illinois; the appeals being from decrees in equity dismissing the cases for want of jurisdiction.

The first bill described the complainant as a citizen of the State of Illinois, and one defendant (Rollins) as of the District of Columbia, and a citizen of the State of _____, and other defendants (Allen and Ferguson) as citizens of the State of Illinois.

The second bill described the plaintiff as a citizen of the State of Illinois, and three defendants (Mann, Allen, and Ferguson) as citizens of the State of Illinois, and one defendant (Delano) as Commissioner of Internal Revenue, without averring that he was a citizen of any State.

The third bill described the plaintiff as a citizen of the State of Illinois, and did not aver that any of the defendants were citizens of any other State.

All the bills were filed subsequently to the 13th July, 1866, when the act of 1833, which gave jurisdiction to the courts of the United States of suits under the Internal Revenue Acts against collectors and others, without regard to citizenship, was repealed.

The CHIEF JUSTICE delivered the opinion of the court.

title: Mason v. Rollins


text: Talk:Mason v. Rollins

title: Talk:Mason v. Rollins


text:
Mason v. Rollins/Opinion of the Court

It is manifest that the averments of citizenship in neither of the bills are sufficient to give the Circuit Court jurisdiction under the Judiciary Act of 1789; and all were filed subsequent to the 13th of July, 1866.

When these suits were brought, therefore, there was no act in force giving jurisdiction in cases such as those made by the records, to the courts of the United States. The Circuit Court was obliged, therefore, to dismiss the bill in each case for want of jurisdiction, and the judgment of that court in the several cases must be

AFFIRMED.

title: Mason v. Rollins/Opinion of the Court


text: Talk:Mason v. Rollins/Opinion of the Court


text:
Insurance Company v. Barton

ERROR to the Circuit Court for the District of Missouri.

Mr. M. H. Carpenter, for the plaintiff in error; Mr. F. A. Dick, contra.

Mr. Justice SWAYNE stated the case delivered the opinion of the court.

title: Insurance Company v. Barton


text: Talk:Insurance Company v. Barton

title: Talk:Insurance Company v. Barton


text:
Insurance Company v. Barton/Opinion of the Court

The suit was brought by Barton upon a policy of insurance. Upon looking into the record we find that the case was tried by a jury; that evidence was adduced by both parties; that the court instructed the jury, and that they found a verdict for the plaintiff, upon which judgment was duly entered. All this was done without any exception being taken by the defendant. The assurers then moved the court to set aside the verdict and grant a new trial upon the following grounds:

That the verdict was against the evidence; that it was against the law and the instructions of the court; because the verdict was uncertain and insufficient. The court overruled the motion. To this the assurers excepted, and in their bill of exceptions have set out all the evidence given in the case. The only point to which our attention has been called by their counsel in this court is, that, according to the evidence thus set out, the plaintiff was clearly not entitled to recover.

The granting or overruling of a motion for a new trial in the courts of the United States rests wholly in the discretion of the court to which the motion is addressed. This is so well settled that it is unnecessary to remark further upon the subject.

JUDGMENT AFFIRMED.


text: Talk:Insurance Company v. Barton/Opinion of the Court


text:
Dooley v. Smith

MOTION by Mr. W. H. Wadsworth, for the defendant in error (Mr. G. Davis, opposing), to dismiss a writ of error to the Court of Appeals of the State of Kentucky, taken on the assumption that the case came within that provision of the 25th section of the Judiciary Act which, as is known, gives this court a right to review the decisions of the highest State court whenever there is drawn in question there the validity of a statute of the United States and the decision is against its validity.

The further statement of the case, as also an indication of the points raised by counsel, is made by

Mr. Justice MILLER, who delivered the opinion of the court.

title: Dooley v. Smith


text: Talk:Dooley v. Smith

title: Talk:Dooley v. Smith


text:
Dooley v. Smith/Opinion of the Court

It is argued by counsel for defendant in error that no question cognizable by this court on a writ of error to a State court is presented by the record, while the counsel for plaintiff insists that the validity of the act of Congress, making certain notes of the United States a legal tender in payment of debts, was the only question raised and decided in the court below.

We are satisfied, from a careful examination of the record, that this latter question was decided against the validity of those statutes, and that such a decision was essential to the judgment rendered by the court.

Dooley being indebted to Smith in a sum of nearly $10,000, evidenced by a note, and made a lien on land by mortgage, filed his petition in the proper State court of Kentucky, alleging that on the 6th day of January, A.D. 1868, the amount due on the note was $9843.92, and that on that day he tendered to Smith that sum in United States legal tender treasury notes, commonly called greenbacks, which Smith refused to receive, and to surrender the note, though he had demanded it. He now brings said legal tender notes into court, and again tenders them, and prays for a delivery of his note and for such other relief as may be proper. He also alleges a prior tender in 1864, but this may be dismissed from further consideration, as he offers the amount due in 1868 without reference to the first tender.

To this petition Smith filed a general demurrer.

While this suit was pending the defendant, Smith, brought an action in the same court to recover the amount due on the note, and to this action Dooley answered, referring to his petition in the former case, and making his allegation therein, of a tender, dis answer in this case, and praying that the two be consolidated, which was ordered by the court. Smith demurred generally to Dooley's answer.

On these pleadings the case was submitted to the court, which ordered both demurrers to be sustained and rendered a judgment for Smith for the amount due, with interest until paid, without regard to the tender. This judgment was affirmed by the Court of Appeals of Kentucky, to which the present writ of error is directed.

Some attempt is made in argument to show that the court might have rested its judgment on the insufficiency of the amount tendered without regard to the character of the currency offered; but as the petition of plaintiff, Dooley, which is adopted as his answer in the suit of Smith, expressly avers that by reason of payments already made, the sum due on the day of the tender was the precise sum tendered, this fact must be taken as confessed by the demurrer of Smith. As regards the sufficiency of the tender of 1864, it is immaterial, as it was not relied on by the plea.

So, also, the argument that the tender paid into court having been withdrawn before judgment, that fact justified the judgment, is answered by the record, which shows that it was withdrawn by a consent order of the court, which provided that the legal effect of the tender should be the same as it would be if the money remained in court.

If the tender was good its effect was to stop the running of interest, and the judgment of the court gave interest expressly, as though no tender had been made.

In short, it is not possible to examine the record and discover any ground on which the plea of tender by Dooley was held bad on demurrer but the fact that it was made in legal tender notes of the United States.

This court, therefore, has jurisdiction.

The recent decision here, overruling Hepburn v. Griswold, and holding these notes to be a valid tender in payment of contracts made before the enactment of the legal tender statutes, as well as those made since, decides the case before us on the merits, and dispenses with further argument.

JUDGMENT REVERSED, and the case remanded, with directions to that court for further proceedings

IN CONFORMITY WITH THIS OPINION.

title: Dooley v. Smith/Opinion of the Court


text:
Wikisource:WikiProject DNB/Completions

This page is to record the completion by biographies added of whole volumes and whole letters of the DNB first edition.

For completion in the sense of validation, see the Index page of each volume. A Special page lists all of these.

Letters complete
A - B - C - D - E - F - G - H - I - J - L - M - N - O - P - Q - R - S - T - U - V - W - X - Y - Z (DNB has no biographies for names starting with "X")

Volumes complete

 * 01 - 02 - 03 - 04 - 05 - 06 - 07 - 08 - 09 - 10
 * 11 - 12 - 13 - 14 - 15 - 16 - 17 - 18 - 19 - 20
 * 21 - 22 - 23 - 24 - 25 - 26 - 27 - 28 - 29 - 30
 * 32 - 37 - 38 - 39 - 40
 * 41 - 42 - 43 - 44 - 45 - 46 - 47 - 48 - 49 - 50
 * 51 - 52 - 53 - 54 - 55 - 56 - 57 - 58 - 59 - 60
 * 61 - 62 - 63

Errata complete
1 - 2 - 6 - 23 - 28 - 43 - 47 - 48 - 49 - 50 - 51 - 52 - 53 - 54 - 55 - 56 - 57- 58 - 59 - 60 - - 62 - 63

Errata entries completed for the following volumes:

18 - S-1-Vol-I - S-1-Vol-II

title: Wikisource:WikiProject DNB/Completions


text: Talk:Dooley v. Smith/Opinion of the Court


text:
Page:Copyright, Its History And Its Law (1912).djvu/201

 to obtain the fullest protection under the law, should enter such work in class (d) as a dramaticomusical composition rather than in class (e) as a musical composition, and thus safeguard himself against the mechanical music proviso applied exclusively to class (e).

In regard to dramatization, the new American code is specific (sec. I, b) in giving to the author of an original work the exclusive right "to dramatize it if it be a non-dramatic work" or "to convert it into a novel or other non-dramatic work if it be a drama." The relations of a maker of a dramatic version of a literary work or of a literary version of a dramatic work, would follow the same rule as in the case of a translator. An author has the exclusive right to dramatize or permit the dramatization of his work, and the dramatization may be copyrighted in the name of the original author or of the dramatizer, but the dramatizer cannot prevent another dramatization of the same work unless by transfer of exclusive right from the original author.

The specific copyright on a published dramatization dates from the publication of the dramatization, which may extend the protection of the dramatization beyond the copyright term of the original work. But on the expiration of the copyright in the original work rival dramatizations can no longer be prevented. All this holds true as to the novelization of a drama.

In respect to music, the language of the law (sec. I, e) is thoroughly comprehensive in covering the arrangement or setting of a musical composition or of a melody in any notation or in any form whatever. This gives to the musical author entire control over the use of any part of his work, as for instance the transcription from an orchestral work for piano use, the instrumentation of a vocal work or the use for a


text:
Paige v. Banks

APPEAL from a decree of the Circuit Court for the Southern District of New York; the case being thus:

Congress by a copyright law of 31st May, 1790, enacted that the author and authors of any book or books, 'and his or their executors, administrators, or assigns,' should have the sole right and liberty of printing, reprinting, publishing, and vending such book or books for the term of fourteen years. And if, at the expiration of the said term the said author or authors should be alive, that the same exclusive right should be continued to him or them, 'his or their executors, administrators, or assigns, for the further term of fourteen years.'

With this law in force as governing the subject of copyrights, the late Mr. Alonzo Paige, of New York, reporter of its Court of Chancery, entered, on the 7th of October, 1828, into an agreement with Gould & Banks, law publishers of that State, thus:

'That the said Alonzo during the term of five years from the 28th of April last, shall and will furnish the said Gound & Banks, in manuscript, the reports of the said court for publication, and that the said Gould & Banks shall have the copyright of said reports to them and their heirs and assigns forever.

'And the said Gould & Banks agree to and with the said Alonzo, that they will publish said reports in royal octavo volumes of between 600 and 700 pages, on paper and type suitable for such a work; that they will deliver to the said Alonzo twelve copies free of expense; that they will sell said reports to the members of the bar of New York at a sum not exceeding $6 per volume, bound in calf, for each volume they shall so sell within one year next subsequent to the publication of such volume.

'And the said Gould & Banks agree to pay to the said Alonzo $1000 per volume for every volume they shall publish, and at the same rate for less than a volume, within six months after the publication of each volume.

'It is understood that the said Alonzo is to read and correct the proof-sheets of said reports as the same are furnished him.'

Mr. Paige did accordingly furnish to Gould & Banks the manuscript of the volume known as 1st Paige's Chancery Reports; and on the 5th of January, 1830, Gould & Banks took out the copyright therefor in their own names.

On the 3d of February, 1831, that is to say, about two years and a half after the date of the agreement between the parties, Congress amended the copyright law, enlarging the rights of copy. The new statute enacted:

'That whenever a copyright shall have been heretofore obtained by an author. . . of any book, &c., if such author. . . be living at the passage of this act, then such author. . . shall continue to have the same exclusive right to his book,. . . with the benefit of each and all the provisions of this act for the security thereof, for such additional period of time as will, together with the time which shall have elapsed from the first entry of said copyright, make up the term of twenty-eight years.

'That if at the expiration of the aforesaid term of years, such author. . . be still living, and a citizen. . . of the United States, or resident therein, or being dead, shall have left a widow, or child, or children, either or all then living, the same exclusive right shall be continued to such author;. . . or if dead, then to such widow and child or children for the further term of fourteen years.'

The twenty-eight years of right given by the act of 1790, expired on the 5th of January, 1858. Gould & Banks conceiving themselves to be entitled to renewal under the act of 1831, on the 3d of October, 1857, went through the usual process to secure a copyright for the extended term. Mr. Paige, on the 3d of January, 1858, conceiving that the extension enured to his benefit, did the same, and on the 13th following informed Gould & Banks that he had thus renewed his copyright, and calling their attention to the fact, that by this renewal 'all right on their part to print, publish, or vend volume first of his reports had ceased,' and calling on them 'henceforth to refrain from printing, publishing, or vending it.' To this Gould & Banks, referring to the contract of October 7th, 1828, reply:

'First. Your manuscripts were furnished to us for publication without limit as to time, and, therefore, whatever be your rights under the law of 1831, we have an unlimited license to publish and sell.

'In the second place, where the entire interest in the copyright has been assigned, we consider the provisions of the act of 1831 to have been intended to enure to the benefit of the assignee.'

They accordingly notify to Mr. Paige that they shall themselves take out all of the renewals of the copyright, 'and hold him liable for all damages consequent on any infringement of their rights.'

Things remained in this state till March 31st, 1868, when Mr. Paige died; and in about ten months afterwards, and after some correspondence with a view to amicable adjustment, his executors filed a bill for injunction against further printing and vending, and for an account of profits after January, 1858.

The court below (Blatchford, J.) dismissed the bill, and the executors of Mr. Paige appealed to this court.

title: Paige v. Banks


text: Talk:Paige v. Banks

title: Talk:Paige v. Banks


text:
Paige v. Banks/Opinion of the Court

Messrs. Clarkson Nott Potter and W. W. Campbell, for the appellants:

The intention of the parties, to be collected from the whole agreement, was simply to convey the copyright, though it may be admitted for the sake of argument that the agreement contains provisions sufficient to create a license if the copyright had not been specifically conveyed. Now, this thing called 'copyright' is, so far as the law recognizes it, or so far as it is a matter of practical value and of sale, a creature of statute. A man has no more 'copyright' than what the statute gives him. When this agreement was made Mr. Paige had the exclusive right in himself and in his assigns to print, publish, and sell, at the longest for a term of twenty-eight years; and no greater or additional right. That assuredly is what he meant to sell, and all that he meant to sell. Now a new statute-one not dreamt of by any one in 1828-gives to Mr. Paige subsequently a new and different sort of right. How can it be said that Mr. Paige meant to assign that when he assigned the other? There are no words in his agreement such as 'whatever copyright he may hereafter have granted to him;' by which it might be inferred that he meant to part with more property than he had; an inference not to be made easily in any case. Questions have arisen often in the kindred case of patents, how far a grant of a patent right carried a subsequent extension of it. In Wilson v. Rousseau, a covenant by the patentee prior to the patent act of 1836, which authorized extensions, that the covenantee should have the benefit of any improvement in the machinery, or alteration or renewal of the patent, was held not to exclude an extension by an administrator under that act; and this court was not unanimous in holding that an extension passed even in such a case as Railroad Company v. Trimble, where a patentee conveyed all the right, title, and interest which he had in the 'same invention,' as secured to him by letters-patent, and also all 'the right, title, and interest which may be secured to him from time to time, the same to be held by the assignee for his own use and for that of his legal representatives, 'to the full end of the term for which said letters are or may be granted.'

2. The copyright act of 1790 gives the right to the author and to his assigns. The act of 1831 which created this new term, gives it specifically to the author if living, to his family if he is dead. Assignees are not mentioned in it, nor provided for. It looks much as if Congress in this case had meant specially to take care of men of literary genius; often as we know not men of business, and, therefore, subject to be hardly dealt with by the trade. A book is rarely much demanded after it has been published twenty-eight years. Some books, the works of men of high genius, are as much so or more than ever. The provision seems specially to have been for the authors of them; and for their families; just as Congress by various acts provides for our soldiers, our occupants of bounty lands, making very liberal provision for them and for their families, but declaring that their vendees shall take nothing. Mr. G. T. Curtis, in his work on Copyright, questions whether the author by any assignment could dispose of the contingent interest given by the act of 1831, so as to deprive his widow and children of the right in case of his death. A similar provision in the patent law has been construed by this court against the right.

We have the benefit of the views on the circuit by Mr. Justice Nelson, in the case of Cowen v. Banks, in support of the position which we take. There the reporter Cowen had assigned in 1823 to this same house of Gould & Banks, the copyright of his reports by an instrument like the present one. He lived till 1844, that is to say, three years after the expiration of his first term of copyright. The executrix of the reporter after his death claiming the fourteen years of the extended term of twenty-eight years, given by statute of 1790, to authors or their assigns, filed a bill for injunction and account. His honor, Judge Nelson, after careful consideration, decided in her favor. It is true indeed that he decreed ultimately in favor of the publishers, on a cross action brought by them to amend the agreement, so as to convey all the interest of Mr. Cowen in the extended term. On the hearing of that cross-bill a deposition of Mr. Cowen given in a prior suit brought by the publishers against one Hastings, as a violator of the copyright, was read in evidence. In this deposition Mr. Cowen testified 'that it was his intention, by the agreement, to convey his whole interest in the copyright of the work,' and he added: 'I supposed the book to belong to my assignees, as soon as made, including all that was in it. I would not have taken the office of reporter, with its salaries and duties, unless I was to have a proprietary right which I could use or dispose of.' The present case is much stronger than that of Mr. Cowen, for the term claimed by his representatives, was the second term granted by the statute of 1790, in case the author lived through the first fourteen years; a term grantable under the statute to assigns; while what we have claimed is the extension granted by the statute of 1831, an extension conferred on the author and his family, and where the rights of assigns seem to have been carefully excluded.

Messrs. Joseph Laroque and E. E. Anderson, contra.

Mr. Justice DAVIS delivered the opinion of the court.

The whole controversy turns upon the true interpretation of the agreement made on the 7th October, 1828.

Independent of any statutory provision the right of an author in and to his unpublished manuscripts is full and complete. It is his property, and, like any other property, is subject to his disposal. He may assign a qualified interest in it, or make an absolute conveyance of the whole interest.

The question to be solved is, do the terms of this agreement show the intent to part with the whole interest in the publication of this book, or with a partial and limited interest?

The agreement on the one side is 'to furnish, in manuscript, the reports of said court for publication,' with an additional clause that the publishers 'shall have the copyright of said reports to them and their assigns forever.' The cause or consideration of this agreement is a stipulation by the other side for a certain sum of money, and the performance of certain duties in connection with the publication.

It is insisted by the appellants that a just interpretation confines the agreement to a mere assignment of the interest in such copyright, as is provided for in the act of 31st May, 1790; that this was the law in force when the contract was entered into; that the fourteen years therein provided for, with the right to a prolongation of fourteen years more, is all that the publishers, at most, are entitled to, and that they are excluded necessarily from the benefit of the provisions conferred by the act of the 3d February, 1831, granting to authors an additional extension of fourteen years.

In our view this is too narrow a construction. The fair and just interpretation of the terms of the agreement indicate unmistakably that the author of the manuscript, in areeing to deliver it for publication at a stipulated compensation, intended to vest in the publishers a full right of property thereto.

The manuscript is delivered under the terms of the agreement 'for publication.' No length of time is assigned to the exercise of this right, nor is the right to publish limited to any number of copies. The consideration is a fixed sum of $1000. Whether one or one hundred thousand copies were published the author was entitled to receive, and the publishers bound to pay, this precise amount.

As between the parties to the agreement the absolute interest was conveyed by the stipulation of Paige, that he would furnish the manuscript for publication. Paige could no longer do any act after such delivery for publication inconsistent with the absolute ownership of the publishers. But it was proper, for the protection of the publishers, that they should be in position to assert the remedies given by the law against intruders, and it is to this end it is added in the agreement, 'and the said Gould & Banks shall have the copyright of said reports to them, their heirs, and assigns forever.' It is not covenanted that the publishers should take out the copyright, nor is there any express agreement for an assignment to them by Paige, if he should take it out. Undoubtedly the provision, that the publishers 'should have the copyright,' would authorize them to apply for it, and if Paige had taken it out in his own name it would have enured to their benefit. But, as between Paige and the publishers, the rights of the latter could not be estimated differently, whether they had or had not availed themselves of the provisions of the act.

We have been referred to the case of Cowen v. Banks, in which Mr. Justice Nelson, on a similar agreement, expressed the opinion that the construction now contended for by the appellants was the true one. No reason is assigned by the judge for his opinion, and the case was such that it was not necessary that this point should be maturely considered. The practical construction by Judge Cowen of his own contract, in opposition to his interest, is cited in the dicision to which we are now referring, together with the fact that the judge died in 1844, three years after the expiration of the first term of the copyright. On this it is said, with some emphasis, 'that he had all this time acquiesced in the claim of the assignee.' The decree was that the contract be reformed accordingly.

In the case now before us the construction contended for by the appellants was, for the first time, urged by letter of Mr. Paige, 13th January, 1858, addressed to the appellees, who replied on 3d February following, asserting their absolute right of ownership, with an unlimited license to publish and sell. The parties lived together after this in the same State until 31st March, 1868, when Paige died, a period of ten years, during which no further notice was ever taken of this subject, and no attempt by Paige, by act or protest, to interfere with the exercise of the right of the appellees to publish and sell. It is difficult to account for this long acquiescence upon any assumption that Paige, after the receipt of the reply to the publishers, had faith in the construction now urged. If this agreement needed any extraneous aid to indicate the intention of the parties, this acquiescence would certainly be persuasive of the view we have taken of it.

DECREE AFFIRMED.

title: Paige v. Banks/Opinion of the Court


text: Talk:Paige v. Banks/Opinion of the Court


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Insurance Company v. Bailey

APPEAL from the Supreme Court of the District.

The Phoenix Mutual Life Insurance Company filed a bill against Mrs. Elizabeth Bailey, widow of Albert Bailey, to compel the cancellation of two policies of insurance issued by that company upon the life of the said Albert, on the 12th of June and 15th of July, 1867, respectively.

The grounds of the bill were that the policies had been procured by the defendant by fraudulent suppression of certain material facts, and the misrepresentation of other ones of the same class. The answer denied the allegations made.

Evidence was given tending to show that the defendant, then bearing the name of Mrs. Von Kammecher, after a husband from whom she had been divorced, went, on the 10th June, 1867, to the office of the insurance company to have Mr. Bailey's life insured; the insurance being in Bailey's own favor, he representing himself as unmarried. Bailey being required, in the usual form, to name an intimate friend who could answer as to his health, referred to Mrs. Von Kammecher, in whose house he was then boarding, and who accordingly signed a certificate that he was in good health and of temperate habits. A policy was accordingly made out to Bailey for $4000. Nine days afterwards, that is to say, on the 19th June, 1867, the same lady called at the office and requested that the policy should issue to her as the wife of Bailey and should be increased to $6000. The policy was thus made, and was dated as of the 12th June, 1867, the date intended for the other. An additional policy was made for $4000 on the 15th July, 1867. Bailey and Mrs. Von Kammecher were married June 22d, 1867, and Bailey died October 11th following, of phthisis pulmonalis. Evidence was also given tending to show that Bailey had been under treatment from February till May, 1867, was told that his lungs were diseassed, and that he 'must strenuously take care of himself;' and, moreover, that Mrs. Von Kammecher knew this, and had been told that Mr. Bailey 'might live two years or not more than six months;' and that she had been herself principally if not solely instrumental in procuring the policies. Evidence was also given tending to show that Bailey's habits were not temperate.

On the other hand evidence was given tending to a contrary conclusion, but it did not perhaps establish it.

It was not alleged in the bill, nor was there evidence given to show that Mrs. Bailey had attempted to assign or that she was about to dispose of the policies. The averment of the bill was that Mrs. Bailey, insisting upon the obligation of the company under the policies, 'demanded the $10,000, and threatened to bring an action at law to recover the same, and by such suit to harass and injure the company.' But, on the other hand, it appeared that after the bill had been filed, suit was brought at law on the policies; so that the company could now set up the fraud alleged.

The court below dismissed the bill without prejudice.

Messrs. Carlisle, McPherson, and W. S.C.ox, for the appellant:

The jurisdiction of courts of equity to compel the cancellation of agreements obtained through false and fraudulent representations is well established, and insurance cases are peculiarly within the jurisdiction. The facts show a clear case of fraud.

Messrs. W. D. Davidge and R. B. Washington, contra:

There is a complete defence at law in favor of the insurance company, if the allegations of the bill are true, and it is sued. If not sued no injury is done to it. The issues of fact raised in the cause are peculiarly suited for the determination of a jury; and even if a court of equity has discretion to entertain the case, which we do not deny, that discretion should not be exercised.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Insurance Company v. Bailey


text: Talk:Insurance Company v. Bailey

title: Talk:Insurance Company v. Bailey


text:
Insurance Company v. Bailey/Opinion of the Court

Policies of life insurance are governed, in some respects, by different rules of construction from those applied by the courts in case of policies against marine risks or policies against loss by fire.

Marine and fire policies are contracts of indemnity, by which the claim of the insured is commensurate with the damages he sustained by the loss of, or injury to, the property insured. Such being the nature of the contract, it is clear that an absolute sale of the property insured, prior to the alleged disaster, is a good defence to an action on the policy, as the insured cannot justly claim indemnity for the loss of, or injury to, property in which he had no insurable interest at the time the loss or injury occurred.

Life insurances have sometimes been construed in the same way, but the better opinion is that the decided cases which proceed upon the ground that the insured must necessarily have some pecuniary interest in the life of the cestui qui vie are founded in an erroneous view of the nature of the contract, that the contract of life insurance is not necessarily one merely of indemnity for a pecuniary loss, as in marine and fire policies, that it is sufficient to show that the policy is not invalid as a wager policy, if it appear that the relation, whether of consanguinity or of affinity, was such, between the person whose life was insured and the beneficiary named in the policy, as warrants the conclusion that the beneficiary had an interest, whether pecuniary or arising from dependence or natural affection, in the life of the person insured.

Insurers in such a policy contract to pay a certain sum, in the event therein specified, in consideration of the payment of the stipulated premium or premiums, and it is enough to entitle the insured to recover if it appear that the stipulated event has happened, and that the party effecting the policy had an insurable interest, such as is described, in the life of the person insured at the inception of the contract, as the contract is not merely for an indemnity, as in marine and fire policies.

Two policies for insurance upon the life of Albert Bailey, the husband of the appellee, were issued by the appellants, and made payable to the appellee in ninety days after due notice and proof of the death of the husband. He died on the eleventh of October following, and due notice of that event was given to the appellants by the appellee, to whom the sums insured, amounting to ten thousand dollars, were payable, but they refused to pay the same, upon the ground that the policies were obtained by fraudulent misrepresentations and by the fraudulent suppression of material facts. They not only refused to pay the sums insured, but instituted the present suit in equity to enjoin the appellee from assigning or in any manner disposing of the policies, and also prayed that she might be compelled by the decree of the court to deliver up the policies to be cancelled, and for further relief. Process was issued and served and the respondent appeared and answered, denying all the charges set forth in the bill of complaint, and alleging that the complainants were bound to pay her the entire sums insured in the respective policies. Proofs were taken on both sides, and the cause having been duly transferred to the general term, the parties proceeded to final hearing, and the Supreme Court of the District entered a decree dismissing the bill of complaint with costs, but without prejudice, and the complainants appealed to this court.

Fraudulent misrepresentations and the fraudulent suppression of material facts are the principal grounds alleged for the relief prayed in the bill of complaint, and it must be conceded that the proofs introduced by the complainants tend strongly to support the allegations which contain those charges. Those allegations in the bill of complaint are denied in the answer, and the respondent has introduced proofs in support of those denials, but it is not going too far to say that the weight of the evidence, as exhibited in the record, is adverse to the pretensions of the respondent, nor does it appear that any different views were entertained by the subordinate court. Grant all that, and still it does not follow that the decree in the court below is erroneous, as the bill of complaint may well have been dismissed upon grounds wholly disconnected from the merits of the controversy.

Suits in equity, the Judiciary Act provides, shall not be sustained in either of the courts of the United States in any case where plain, adequate, and complete remedy may be had at law, and the same rule is applicable where the suit is prosecuted in the Chancery Court of this District

Much consideration was given to the construction of that section of the Judiciary Act in the case first referred to, and also to the question whether a party seeking to enforce a legal right could resort to equity in the first instance in a controversy where his remedy at law is complete, and the court, without hesitation, came to the conclusion that he could not, if his remedy at law was as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity.

Most of the leading authorities were carefully examined on the occasion and the court came to the following conclusion, which appears to be correct: That whenever a court of law in such a case is competent to take cognizance of a right and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, without the aid of a court of equity, the plaintiff must in general proceed at law, because the defendant, under such circumstances, has a right to a trial by jury.

Exceptions undoubtedly exist to that rule, of which there are many to be found in the reports of judicial decisions, and in which preventive relief was administered by injunction. Such relief is granted to prevent irreparable injury or a multiplicity of suits, or where the injury is of such a nature that it cannot be adequately compensated by damages at law, or is such, as, from its continuance or permanent mischief, must occasion constantly recurring grievance, which cannot be removed or corrected otherwise than by such a preventive remedy.

Authorities to show that equity will interfere to restrain irreparable mischief, or to suppress oppressive and interminable litigation, or to prevent multiplicity of suits, is unnecessary, as that proposition is universally admitted.

Jurisdiction may also be exercised by courts of equity to rescind written instruments in cases where they have been procured by false representations or by the fraudulent suppression of the truth, if it appear that the rescission of the same is essential to protect the opposite party from pecuniary injury. Equity will rescind or enjoin such instruments where they operate as a cloud upon the title of the opposite party, or where the instruments are of a character that the vice in the inception of the same would be unavailing as a defence by the injured party if the instruments were transferred for value into the hands of an innocent holder. Title-deeds fraudulently procured may, under such circumstances, be decreed to be cancelled or reformed, as the case may be, and bills of exchange or promissory notes may be enjoined and practically divested of their negotiable quality.

Such jurisdiction also extends to the protection of letters-patent against infringement, and is exercised in many cases to prevent waste, and for many other judicial purposes, but the rule in the Federal courts is universal, that if the defendant has a good defence at law, and the remedy at law is as perfect and complete as the remedy in equity, an injunction will not be granted.

Whether the remedy sought in this case would have been available if the suit had been instituted before the death of the person whose life was insured it is not necessary to determine, as no such question is involved in the record. Suffice it to say upon that topic that the complainant has not referred the court to any decided case which supports the affirmative even of that inquiry, but the difficulty in the way to such a conclusion in the case before the court is much greater, as by the death of the cestui que vie the obligation to pay, as expressed in the policies, became fixed and absolute, subject only to the condition to give notice and furnish proof of that event within ninety days. Notice having been given and the required proof furnished, the obligation to pay certainly became fixed by the terms of the policies and the sums insured became a purely legal demand, and if so, it is difficult to see what remedy, more nearly perfect and complete, the appellants can have than is afforded them by their right to make defence at law, which secures to them the right of trial by jury.

Where a party, if his theory of the controversy is correct, has a good defence at law to 'a purely legal demand,' he should be left to that means of defence, as he has no occasion to resort to a court of equity for relief, unless he is prepared to allege and prove some special circumstances to show that he may suffer irreparable injury if he is denied a preventive remedy. Nothing of the kind is to be apprehended in this case, as the contracts, embodied in the policies, are to pay certain definite sums of money, and the record shows that an action at law has been commenced by the insured to recover the amounts, and that the action is now pending in the court whose decree is under re-examination.

Courts of equity unquestionably have jurisdiction of fraud, misrepresentation, and fraudulent suppression of material facts in matters of contract, but where the cause of action is 'a purely legal demand,' and nothing appears to show that the defence at law may not be as prefect and complete as in equity, a suit in equity will not be sustained in a Federal court, as it is clear that the case, under such circumstances, is controlled by the sixteenth section of the Judiciary Act.

DECREE AFFIRMED.


text: Talk:Insurance Company v. Bailey/Opinion of the Court


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United States v. Russell (80 U.S. 623)

APPEAL from the Court of Claims; the case being thus:

By the act of Congress of 1855, constituting the said court, jurisdiction is given to it to hear and determine all claims against the United States, 'founded on any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States.'

A subsequent act, however, the act of July 4th, 1864, enacts:

'That the jurisdiction of the said court shall not extend to or include any claim against the United States, growing out of the destruction or appropriation of, or damage to property by the army or navy, or any part of the army or navy engaged in the suppression of the rebellion, from the commencement to the close thereof.'

In this state of the court's jurisdiction, one Russell filed a petition in that court for compensation for the seizure and use of three steamers belonging to him, by the military authorities. The first was the steamer J. H. Russell, which was taken by the Assistant Quartermaster of the United States army at St. Louis, on the 2d of October, 1863, under the following letter:'CAPTAIN OF THE STEAMER J. H. RUSSELL.

'SIR: Imperative military necessity requires that you make no arrangements for private freight without first consulting this office, and obtaining permission in writing so to do.

'Yours very respectfully,

'CHARLES PARSONS,

'Captain and Assistant Quartermaster.'

The steamer was detained in the service of the United States in pursuance to this order, being used in the transportation of government freight from the 2d of October until the 20th of November, 1863.

The second vessel was the steamer Liberty, taken on the following order:

'TRANSPORTATION DEPARTMENT,

'ST. LOUIS, MO., Sept. 2d, 1864.

'CAPTAIN OF THE STEAMER LIBERTY.

'SIR: Imperative military necessity requires the services of your steamer for a brief period. Your captain will report at this office at once, in person, first stopping the receipt of freight, should the steamer be so doing.

'L. S. METCALF,

'Captain and Assistant Quartermaster.'

In pursuance of this order the seamer was taken into the service of the United States, and was engaged in it for twenty-six days. The steamer was subsequently again taken into the service of the United States at New Orleans, under orders from an assistant quartermaster in the army.

The third steamer was the 'Time and Tide,' which was taken into the service of the United States, in pursuance of a military order issued by an assistant quartermaster in the United States army at New Orleans, on the 21st of March, 1864, and continued in the service of the United States in pursuance of such order for the period of sixty days.

The court found:

'That during the time each of said steamers was in the service of the United States, as hereinbefore stated, they were in command of the claimant, or of some person employed by him, subject to his control and under his pay.

'That in the case of each of these steamers, at the times when the same were respectively taken into the service of the United States, the officers acting for the United States, did not intend to 'appropriate' these steamers to the United States, nor even their services; but they did intend to compel the captains and crews with such steamers to perform the services needed, and to pay a reasonable compensation for such services, and such was the understanding of the claimant; and that each of said steamers, so soon as the services for which they were respectively required had been performed, were returned to the exclusive possession and control of the claimant.'

The court, upon these facts, decided, as a conclusion of law, that there was not such an 'appropriation' of the claimant's property as prohibited the court from taking jurisdiction of the case under the act of July 4th, 1864, but the there was such an employment and use of the claimant's property in the service of the United States as raises an implied promise on the part of the United States to reimburse the claimant for the money expended by him for and on behalf of the United States, and also a fair and reasonable compensation for the services of the claimant and for the services of said steamers.

Judgment was accordingly rendered against the United States for the sum of $41,355, and from that judgment the United States appealed, and assigned as error that, under the already quoted act of July 4th, 1864, the Court of Claims had no jurisdiction of the claim of the appellee against the government.

Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States, appellant:

The construction put upon the act of July 4th, by this court, in Filor v. United States, is decisive of the present question. 'The term 'appropriation," the court there says, 'is of the broadest import; it includes all taking and use of property by the army ar navy, in the cause of the war, not authorized by contract with the government.' That case was a temporary occupation of real property by the Quartermaster's Department, under a lease which was held to be invalid.

Messrs. Weed, Cooley, Clarke, and Corwine, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: United States v. Russell (80 U.S. 623)


text: Talk:United States v. Russell (80 U.S. 623)