text:
Thorington v. Smith/Opinion of the Court

The questions before us upon this appeal are these:

(1.) Can a contract for the payment of Confederate notes, made during the late rebellion, between parties residing within the so-called Confederate States, be enforced at all in the courts of the United States?

(2.) Can evidence be received to prove that a promise expressed to be for the payment of dollars was, in fact, made for the payment of any other than lawful dollars of the United States?

(3.) Does the evidence in the record establish the fact that the note for ten thousand dollars was to be paid, by agreement of the parties, in Confederate notes?

The first question is by no means free from difficulty. It cannot be questioned that the Confederate notes were issued in furtherance of an unlawful attempt to overthrow the government of the United States, by insurrectionary force. Nor is it a doubtful principle of law that no contracts made in aid of such an attempt can be enforced through the courts of the country whose government is thus assailed. But, was the contract of the parties to this suit a contract of that character? Can it be fairly described as a contract in aid of the rebellion?

In examining this question the state of that part of the country in which it was made must be considered. It is familiar history, that early in 1861 the authorities of seven States, supported, as was alleged, by popular majorities, combined for the overthrow of the National Union, and for the establishment, within its boundaries, of a separate and independent confederation. A governmental organization, representing these States, was established at Montgomery in Alabama, first under a provisional constitution, and afterwards under a constitution intended to be permanent. In the course of a few months, four other States acceded to this confederation, and the seat of the central authority was transferred to Richmond, in Virginia. It was, by the central authority thus organized, and under its direction, that civil war was carried on upon a vast scale against the government of the United States for more than four years. Its power was recognized as supreme in nearly the whole of the territory of the States confederated in insurrection. It was the actual government of all the insurgent States, except those portions of them protected from its control by the presence of the armed forces of the National government.

What was the precise character of this government in contemplation of law? It is difficult to define it with exactness. Any definition that may be given may not improbably be found to require limitation and qualification. But the general principles of law relating to de facto government will, we think, conduct us to a conclusion sufficiently accurate.

There are several degrees of what is called de facto government.

Such a government, in its highest degree, assumes a character very closely resembling that of a lawful government. This is when the usurping government expels the regular authorities from their customary seats and functions, and establishes itself in their place, and so becomes the actual government of a country. The distinguishing characteristic of such a government is, that adherents to it in war against the government de jure do not incur the penalties of treason; and under certain limitations, obligations assumed by it in behalf of the country, or otherwise, will, in general, be respected by the government de jure when restored.

Examples of this description of government de facto are found in English history. The statute 11 Henry VII, c. 1, relieves from penalties for treason all persons who, in defence of the king, for the time being, wage war against those who endeavor to subvert his authority by force of arms, though warranted in so doing by the lawful monarch.

But this is where the usurper obtains actual possession of the royal authority of the kingdom: not when he has succeeded only in establishing his power over particular localities. Being in possession, allegiance is due to him as king de facto.

Another example may be found in the government of England under the Commonwealth, first by Parliament, and afterwards by Cromwell as Protector. It was not, in the contemplation of law, a government de jure, but it was a government de facto in the most absolute sense. It incurred obligations and made conquests which remained the obligations and conquests of England after the restoration. The better opinion doubtless is, that acts done in obedience to this government could not be justly regarded as treasonable, though in hostility to the king de jure. Such acts were protected from criminal prosecution by the spirit, if not by the letter, of the statute of Henry the Seventh. It was held otherwise by the judges by whom Sir Henry Vane was tried for treason, in the year following the restoration. But such a judgment, in such a time, has little authority.

It is very certain that the Confederate government was never acknowledged by the United States as a de facto government in this sense. Nor was it acknowledged as such by other powers. No treaty was made by it with any civilized state. No obligations of a National character were created by it, binding after its dissolution, on the States which it represented, or on the National government. From a very early period of the civil war to its close, it was regarded as simply the military representative of the insurrection against the authority of the United States.

But there is another description of government, called also by publicists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active military power, within the territories, and against the rightful authority of an established and lawful government; and (2), that while it exists, it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience, rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered, also, by civil authority, supported more or less directly by military force.

One example of this sort of government is found in the case of Castine, in Maine, reduced to British possession during the war of 1812. From the 1st of September, 1814, to the ratification of the treaty of peace in 1815, according to the judgment of this court in United States v. Rice, 'the British government exercised all civil and military authority over the place.' 'The authority of the United States over the territory was suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conqueror. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose.' It is not to be inferred from this that the obligations of the people of Castine as citizens of the United States were abrogated. They were suspended merely by the presence, and only during the presence, of the paramount force. A like example is found in the case of Tampico, occupied during the war with Mexico by the troops of the United States. It was determined by this court, in Fleming v. Page, that, although Tampico did not become a port of the United States in consequence of that occupation, still, having come, together with the whole State of Tamaulipas, of which it was part, into the exclusive possession of the National forces, it must be regarded and respected by other nations as the territory of the United States. These were cases of temporary possession of territory by lawful and regular governments at war with the country of which the territory so possessed was part.

The central government established for the insurgent States differed from the temporary governments at Castine and Tampico in the circumstance, that its authority did not originate in lawful acts of regular war, but it was not, on that account, less actual or less supreme. And we think that it must be classed among the governments of which these are examples. It is to be observed that the rights and obligations of a belligerent were conceded to it, in its military character, very soon after the war began, from motives of humanity and expediency by the United States. The whole territory controlled by it was thereafter held to be enemies' territory, and the inhabitants of that territory were held, in most respects, for enemies. To the extent, then, of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent government cannot be questioned. That supremacy did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government upon the re-establishment of its authority. But it made obedience to its authority, in civil and local matters, not only a necessity but a duty. Without such obedience, civil order was impossible.

It was by this government exercising its power throughout an immense territory, that the Confederate notes were issued early in the war, and these notes in a short time became almost exclusively the currency of the insurgent States. As contracts in themselves, except in the contingency of successful revolution, these notes were nullities; for, except in that event, there could be no payer. They bore, indeed, this character upon their face, for they were made payable only 'after the ratification of a treaty of peace between the Confederate States and the United States of America.' While the war lasted, however, they had a certain contingent value, and were used as money in nearly all the business transactions of many millions of people. They must be regarded, therefore, as a currency, imposed on the community by irresistible force.

It seems to follow as a necessary consequence from this actual supremacy of the insurgent government, as a belligerent, within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered in courts of law in the same light as if it had been issued by a foreign government, temporarily occupying a part of the territory of the United States. Contracts stipulating for payments in this currency, cannot be regarded for that reason only, as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relations to the hostile government, whether invading or insurgent. They are transactions in the ordinary course of civil society, and, though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection. We cannot doubt that such contracts should be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation. The first question, therefore, must receive an affirmative answer.

The second question, Whether evidence can be received to prove that a promise, made in one of the insurgent States, and expressed to be for the payment of dollars, without qualifying words, was in fact made for the payment of any other than lawful dollars of the United States? is next to be considered.

It is quite clear that a contract to pay dollars, made between citizens of any State of the Union, while maintaining its constitutional relations with the National government, is a contract to pay lawful money of the United States, and cannot be modified or explained by parol evidence. But it is equally clear, if in any other country, coins or notes denominated dollars should be authorized of different value from the coins or notes which are current here under that name, that, in a suit upon a contract to pay dollars, made in that country, evidence would be admitted to prove what kind of dollars were intended, and, if it should turn out that foreign dollars were meant, to prove their equivalent value in lawful money of the United States. Such evidence does not modify or alter the contract. It simply explains an ambiguity, which, under the general rules of evidence, may be removed by parol evidence.

We have already seen that the people of the insurgent States, under the Confederate government were, in legal contemplation, substantially in the same condition as inhabitants of districts of a country occupied and controlled by an invading belligerent. The rules which would apply in the former case would apply in the latter; and, as in the former case, the people must be regarded as subjects of a foreign power, and contracts among them be interpreted and enforced with reference to the conditions imposed by the conqueror, so in the latter case, the inhabitants must be regarded as under the authority of the insurgent belligerent power actually established as the government of the country, and contracts made with them must be interpreted and enforced with reference to the condition of things created by the acts of the govering power.

It is said, indeed, that under the insurgent government the word dollar had the same meaning as under the government of the United States; that the Confederate notes were never made a legal tender, and, therefore, that no evidence can be received to show any other meaning of the word when used in a contract. But, it must be remembered that the whole condition of things in the insurgent States was matter of fact rather than matter of law, and, as matter of fact, these notes, payable at a future and contingent day, which has not arrived and can never arrive, were forced into circulation as dollars, if not directly by the legislation, yet indirectly and quite as effectually by the acts of the insurgent government. Considered in themselves, and in the light of subsequent events, these notes had no real value, but they were made current as dollars by irresistible force. They were the only measure of value which the people had, and their use was a matter of almost absolute necessity. And this use gave them a sort of value, insignificant and precarious enough it is true, but always having a sufficiently definite relation to gold and silver, the universal measures of value, so that it was always easy to ascertain how much gold and silver was the real equivalent of a sum expressed in this currency. In the light of these facts it seems hardly less than absurd to say that these dollars must be regarded as identical in kind and value with the dollars which constitute the money of the United States. We cannot shut our eyes to the fact that they were essentially different in both respects; and it seems to us that no rule of evidence properly understood requires us to refuse, under the circumstances, to admit proof of the sense in which the word dollar is used in the contract before us. Our answer to the second question is, therefore, also in the affirmative. We are clearly of opinion that such evidence must be received in respect to such contracts, in order that justice may be done between the parties, and that the party entitled to be paid in these Confederate dollars can recover their actual value at the time and place of the contract, in lawful money of the United States.

We do think it necessary to go into a detailed examination of the evidence in the record in order to vindicate our answer to the third question. It is enough to say that it has left no doubt in our minds that the note for ten thousand dollars, to enforce payment of which suit was brought in the Circuit Court, was to be paid, by agreement of the parties, in Confederate notes.

It follows that the decree of the Circuit Court must be REVERSED, and the cause remanded, for further hearing and decree, in conformity with this opinion.

At the same time with the foregoing case was decided another, as to its chief point, like it; an appeal from the Circuit Court for the Northern District of Georgia. It was the case of

A bill had been filed below to set aside a deed of land for fraud and inadequate consideration. The allegations of fraud were founded wholly upon the circumstance, that the land was sold for Confederate notes. The bill set up also a lien in favor of the vendor of the complainant. The vendor, whose lien was set up, was not made a party, nor was there any allegation of notice to the grantor of the complainant of the alleged lien for purchase-money; nor was there any averment that the commplainant was induced to take the Confederate notes by fraudulent misrepresentations of the decedent. A demurrer was inter posed in the court below (Erskine, J., presiding), and being sustained, the bill was dismissed.

The CHIEF JUSTICE delivered the opinion of this court, to the effect, that the vendor whose lien was set up not having been made a party, and there not being any allegations of notice to the grantor of the complainant, of the alleged lien for purchase-money, no ground of relief was shown by the bill as to this lien.

And that upon the principles of Thorington v. Smith, just preceding, the fact that the land was sold for Confederate notes, did not, in the absence of all averment that the complainant was induced to take them by fraudulent misrepresentations of the decedent, afford ground for the interposition of a court of equity. The decree was accordingly

AFFIRMED.


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

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


text:
Dean v. Younell's Aministrator

A bill had been filed below to set aside a deed of land for fraud and inadequate consideration. The allegations of fraud were founded wholly upon the circumstance, that the land was sold for Confederate notes. The bill set up also a lien in favor of the vendor of the complainant. The vendor, whose lien was set up, was not made a party, nor was there any allegation of notice to the grantor of the complainant of the alleged lien for purchase-money; nor was there any averment that the commplainant was induced to take the Confederate notes by fraudulent misrepresentations of the decedent. A demurrer was inter posed in the court below (Erskine, J., presiding), and being sustained, the bill was dismissed.

title: Dean v. Younell's Aministrator


text: Talk:Dean v. Younell's Aministrator

title: Talk:Dean v. Younell's Aministrator


text:
Dean v. Younell's Aministrator/Opinion of the Court

The CHIEF JUSTICE delivered the opinion of this court, to the effect, that the vendor whose lien was set up not having been made a party, and there not being any allegations of notice to the grantor of the complainant, of the alleged lien for purchase-money, no ground of relief was shown by the bill as to this lien.

And that upon the principles of Thorington v. Smith, just preceding, the fact that the land was sold for Confederate notes, did not, in the absence of all averment that the complainant was induced to take them by fraudulent misrepresentations of the decedent, afford ground for the interposition of a court of equity. The decree was accordingly

AFFIRMED.


text: Talk:Dean v. Younell's Aministrator/Opinion of the Court


text:
The Eagle (75 U.S. 15)

ERROR to the Circuit Court for the Eastern District of Michigan. The case being thus:

1. The Constitution declares that the power of the Federal courts shall extend to 'all cases of admiralty and maritime jurisdiction.' And the Judiciary Act of 1789 gives to all the District Courts 'exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessles of ten or more tons burden, within their respective districts, as well as upon the high seas.'

At the time when this act of 1789 was passed, admiralty jurisdiction, according to the ideas then generally entertained by both courts and bar, could be exercised only upon waters within the ebb and flow of the tide. Accordingly in 1845, Congress, by a statute, entitled 'An act extending the jurisdiction of the District Courts to certain cases upon the lakes and navigable waters connecting the same,' enacted thus:

The District Courts of the United States shall have, possess, and exercise the same jurisdiction in 'matters of contract and tort, arising in, upon, or concerning steamboats and other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and employed in the business of commerce and navigation between ports and places in divers States and Territories, upon the lakes and the navigable waters connecting the same, as is now possessed and exercised by the said courts in cases of the like steamboats and other vessels employed in navigation and commerce on the high seas.'

About six years after this statute was passed, the case of The Genesee Chief came before this court. And in that case it was decided that the impression that admiralty jurisdiction in this country was limited to tide waters was a mistake, and that the lakes and waters connecting them were within it.

After this decision, the language of certain cases seemed to indicate that the act of 1845 was to be regarded as limiting the exercise of this jurisdiction to those cases in which the act had meant, by way of extending the jurisdiction, to grant it.

In this state of statutory law and of judicial remark upon it, the tug Eagle, in September, 1864, was towing a brig and a barge from the head of the St. Clair River through the Detroit River; the brig being on her way from Saginaw, in Michigan, to Buffalo, in New York. The tug, getting a mile or so over the line which separates the British side of the river from ours, and out of the usual course of navigation, was sailing in shoal water, when the brig grounded and the barge, which was attached to her, ran into her stern and seriously damaged her. Thereupon the owners of the brig filed a libel in the District Court for Eastern Michigan, 'in a cause of collision' against both tug and barge. It set forth that the brig was 'a vessel of twenty tons and upwards, duly enrolled and licensed at the port of Buffalo, State of New York, and used in navigating the waters of the Northwestern lakes and the rivers connecting said lakes, and engaged in the business of commerce and navigation thereupon.' And also that the tug and barge were also both 'vessels of more than twenty tons burden, enrolled and licensed for the coasting trade, and used in navigating the waters of this State and the adjoining States, and now lying, or soon will be, at the port of Detroit, and within the admiralty and maritime jurisdiction of this court.'

The answers denied knowledge of these facts stated about the brig, and called for proof, but admitted the tug and barge to be enrolled and licensed.

The answer for the barge further laid the whole blame on the tug, asserting that the sole cause of the disaster was her going out of the proper course of navigation; while the answer for the tug stated there was no fault with her, and denied that the libellants had any claim 'enforceable in this court sitting in admiralty for said alleged damage.'

Two questions were thus raised: the first, of merits; the second, of jurisdiction. The District Court dismissed the libel as to the barge and condemned the tug. This decree being confirmed by the Circuit Court, the case came here on appeal, where the question of merits was briefly urged, the point of jurisdiction being really the only question. It was admitted, that by the law of Canada, where this damage was done, no lien or any action exists against a wrongdoing vessel, or any right or lien in rem.

Mr. Newberry, for the tug, appellant:

1. This is an action for a tort, not one on contract; and the tort was committed in Canada. Confessedly the Canadian law gives no lien. It can exist only under our laws. But the laws of the United States can have no extra-territorial operation. Neither, if the vessel was out of our jurisdiction when the tort was committed, can a lien arise by her coming into our lines. An admiralty lien subsists from the moment the claim arises, or subsists not at all. It is a right in the thing, jus in re, and not jus ad rem; and attaches by operation of then existing law. If there is no such law in force at the time and place of the damage done, no lien can attach. Indeed, the rights of the parties must, in all cases, especially in actions of tort, depend upon the law of the place where the alleged rights accrued. In Smith v. Condry, two American vessels collided in the port of Liverpool. The defence set up certain rights of parties under the law of the place of collision. This defence was sustained, and the court held, 'that when a collision occurs in an English port, the rights of the parties depend on the law in force at that place.'

2. In addition to these points of general law, it should be noted that neither the tug, brig, or barge had the proper characteristics to bring them within the act of 1845. In The Genesee Chief, Taney, C. J., speaking for the court, states that the general jurisdiction of admiralty was limited by the act of 1845. In Allen v. Newberry, Nelson, J., speaking also for the court, says, that 'the act confines the jurisdiction to cases mentioned in it.' And in The Hine v. Trevor, Miller, J., says, that the jurisdiction on the lakes and waters connecting them is governed by that statute, though he said that it was not so, as was often erroneously thought in the West, upon the rivers. Now the libel, while alleging that the tug was 'enrolled and licensed' at the time of the libel filed, does not allege that she was so 'for the coasting trade,' or enrolled and licensed at all when the damage occurred. Nor is there proof that the tug was enrolled and licensed for the 'coasting trade;' nor that she was employed in the business of commerce and navigation between ports and places in different states and territories, &c., 'at the time,' &c., or indeed at any time. There is no proof on that subject. The burden of proof is on the libellant to prove the alleged facts. On the other hand, the tug was a tow-boat, towing obviously from the lower end of Lake Huron to the upper end of Lake Erie. Both termini are within the waters of the State of Michigan, and such employment did not require the tug to go into the waters of any other State than Michigan. She was clearly, as to her occupation, within the case of Allen v. Newberry.

Mr. G. B. Hibbert, contra, submitted an able brief, presenting with learning and force much the same views as are presented by the court; a brief of Mr. W. A. Moore being also filed.

Mr. Justice NELSON delivered the opinion of the court.

title: The Eagle (75 U.S. 15)


text: Talk:The Eagle (75 U.S. 15)

title: Talk:The Eagle (75 U.S. 15)


text:
The Eagle (75 U.S. 15)/Opinion of the Court

On the question of merits we concur with the conclusion of the courts below. We shall only examine the questions of law.

The summary of them, as stated by the learned counsel, is (1) There is no law in force in the Province of Canada, the place where the tort was committed, that gives a lien upon the vessel for the alleged damages; (2) The laws of the United States have no extra-territorial force in a foreign territory to create a lien; and (3) The admiralty lien is a right in the thing-jus in re, and not jus ad rem-and the lien must depend upon the law of the place where the alleged right occurred.

It is apparent from the grounds upon which the learned counsel has placed his claim to a reversal of the decree below, that he has entirely misapprehended the scope and effect of the decision of this court in the case of The Genesee Chief, and the several cases following it.

The leading case obliterated the limit, that had been previously adopted and enforced in the jurisdiction in admiralty, to tide-waters; and held that, according to the true construction of the grant in the Constitution, it extended to all public navigable waters, whether influenced by the tide or not. The Chief Justice, in delivering the opinion, observes: 'It is evident that a definition (of the grant in the Constitution) that would, at this day, limit public rivers in this country to tide-water rivers, is utterly inadmissible. We have thousands of miles of public navigable waters, including lakes and rivers, in which there is no tide; and, certainly, there can be no reason for admiralty power over a public tide-water, which does not apply with equal force to any other public waters used for commercial purposes and foreign trade. The lakes, and the waters connecting them, he observes, are undoubtedly public waters, and we think are within the grant of admiralty and maritime jurisdiction in the Constitution of the United States.'

It follows, as a necessary consequence of this interpretation of the grant in that instrument, the District Courts, upon whom the admiralty jurisdiction was exclusively conferred by the Judiciary Act of 1789, can take cognizance of all civil causes of admiralty jurisdiction upon the lakes, and waters connecting them, the same as upon the high seas, bays, and rivers navigable from the sea. These waters fall within the same category, and are subject to the same jurisdiction, and hence the circumstance that a portion of them lie within the limits of another sovereignty constitutes no objection to the exercise of this power. Before the limit of tide-water was removed by the judgment in the case of The Genesee Chief, this jurisdiction was constantly exercised in cases of marine torts upon the high seas, bays, and rivers in which the tide ebbed and flowed, occurring in any part of the world, and, in respect to which an American ship was concerned; and, since that judgment, occurring upon any bay or public river as far as navigable, irrespective of the tide.

Since the recent acts of Parliament, in England, removing the ancient restrictions by the common law courts upon the admiralty jurisdiction, it seems to be exercised as freely and broadly as in this country. The case of The Diana arose out of a collision on the great Holland Canal in 1862. An exception was taken to that jurisdiction founded upon the old objection, but was overruled by Dr. Lushington. So, in the case of The Courier, which was a collision on the Rio Grande, in foreign waters. And The Griefswald the same.

It is insisted, however, that, if the court will take jurisdiction for a collision occurring on foreign waters, and within foreign territory; the local law of the place of collision should govern; and hence, the law of Canada in the present case; and Smith et al. v. Conary, in this court, is cited as an authority for the doctrine. The collision in that case occurred in the port of Liverpool, while the vessel of the defendant was coming out. The defendant set up in defence, that by the statute law of England he was compulsorily obliged to take on board of his ship a Liverpool pilot, which he did; that she was exclusively in his charge when the accident occurred; and that this law, as construed by the courts of England, excused the owner and master of the vessel; and this was agreed to by the court, and applied to the case, the Chief Justice giving the opinion. All vessels entering into, or departing from, a domestic or foreign port, are bound to obey the laws and well-known usages of the port, and are subject to seizure and penalties for disobedience; and when submitting to them, they are entitled to all the protection which the afford. The same question was recently before Dr. Lushington in the case of a collision between the American ship Annapolis and a Prussian barque, at the same port, and the American ship was discharged on the ground as in the case above cited. These are exceptional cases, and furnished no rule to the court below for the trial of the collision in question. It was tried there, as it should have been tried, according to the practice and principles of the courts of admiralty in this country, wholly irrespective of any local law.

An objection is also taken, that the case was not brought within the requirements of the act of 1845, so as to give the District Court jurisdiction-that is, it was not shown that the vessels were of the burden of twenty tons and upwards, or enrolled and licensed for the coasting trade, or employed, at the time, in the business of commerce and navigation between ports and places in different States.

These facts were substantially set forth in the libel, and the answers did not set up any specific exception on this ground, nor does it seem to have been taken by the respondents at all in the progress of the trial below. The objection, we think, untenable.

This act of 1845, as is apparent from several of the cases before the district courts whose districts lie contiguous to the lakes, has occasioned a good deal of embarrassment in administering their admiralty jurisdiction since the decision in the case of The Genesee Chief. It is quite clear, under this decision, in the absence of that act, the district courts would possess general jurisdiction in admiralty over the lakes, and the waters connecting them; and, hence, there would be no more difficulty in the administration of the law than in cases upon the high seas, or bays, or rivers navigable from the sea.

At the time it was passed, tide-water was the limit of admiralty jurisdiction, and the act was intended to remove this restriction upon the court, as it respected these lakes, and to extend the jurisdiction to them, thereby making these waters an exception as to the tide-water limit. The power conferred by the act, however, was not that of general admiralty jurisdiction, but was limited to cases of 'contract and tort, arising in, upon, or concerning steamboats, and other vessels, of twenty tons burden and upwards, enrolled and licensed for the coasting trade, and at the time employed in the business of commerce and navigation between ports and places of different States.' The better opinion, we think, is, that the act does not embrace, but necessarily excludes, cases of prize. These are neither cases of contract or tort, and the vessels engaged in making the seizure, as prize of war, which are ships of the navy, or privateers, are not employed at the time, in the business of commerce and navigation. We think it also a matter of grave doubt if the act confers jurisdiction in cases of salvage, jettison, or general average. These are not matters of contract, according to the most eminent commentators on the subject, and they certainly are not cases of tort.

One question, and a very important one, is, whether, since the decision of The Genesee Chief, which opens the lakes and the waters connecting them to the general jurisdiction of the district courts in admiralty, they can entertain this jurisdiction in cases outside of that conferred by this act? If the affirmative of this question should be sustained, although the system would be disjointed and incongruous, yet it would, in its result, remedy most of the difficulties and inconveniences now existing. But the opinions of the judges of this court, as expressed in several cases, though the question has never been directly before the court for decision, are, that the act should be regarded as restrictive of the general jurisdiction of these courts. This was the opinion expressed by the Chief Justice in the case of The Genesee Chief, and has been followed by other justices in this court, who have had occasion to express any opinion in the subject. The history and operation of this act of 1845, are peculiar.

It is 'an act extending the jurisdiction of the district courts to certain cases upon the lakes and navigable waters connecting the same.' At the time it was enacted it had the effect expressed and intended, and so continued for some seven years, when the case of The Genesee Chief was decided. From that time, its effect ceased as an enabling act; and has been no longer regarded as such. It is no longer considered by this court as conferring any jurisdiction in admiralty upon the district courts over the lakes, or the waters connecting them. That is regarded as having been conferred by the grant of general admiralty jurisdiction by the ninth section of the act of 1789 to these courts. The original purpose of the act, therefore, has ceased, and is of no effect; and, in order to give it any, instead of construing it as extending the jurisdiction in admiralty, it must be construed as limiting it-the very reverse of its object and intent, as expressed on its face.

In the case of The Hine v. Trevor, it is said by the learned Justice, in delivering the opinion of the court, that the jurisdiction in admiralty on the Western rivers did not depend on the act of 1845, but was given by the original act of 1789; and he intimated further, that the jurisdiction on the lakes was also founded on this act, though governed in its exercise by the act of 1845. The case then before the court did not arise on the lakes, but on the Mississippi River; and the remarks made in respect to the jurisdiction upon the lakes, was in answer to an impression very general, as is said, among the profession in that section of the country, and even of the learned Judge whose judgment the court was reviewing, that the jurisdiction upon the rivers depended on this act of 1845. That case, not at all involving the question of jurisdiction upon the lakes, but simply upon the interior rivers, did not receive that full deliberation in respect to this question, which, in the present case, is called for. We have now examined it with care, and given to it our best consideration, and are satisfied, that since the decision of the case of The Genesee Chief, the court must regard the district courts as having conferred upon them a general jurisdiction in admiralty upon the lakes and the waters connecting them, by the ninth section of the original act of 1789; and the enabling act of 1845, therefore, has become inoperative and ineffectual as a grant of jurisdiction; and, as it was an act, on the face of it, and as intended, in its purpose and effect, to extend the admiralty jurisdiction to these waters, we cannot, without utterly disregarding this purpose and intent, give offect to its as a limitation or restriction upon it. We must, therefore, regard it as obsolete and of no effect, with the exception of the clause which gives to either party the right of trial by jury when requested, which is rather a mode of exercising jurisdiction than any substantial part of it. The saving clause in this act, as to the concurrent remedy at common law, is, in effect, the same as in the act of 1789, and is, therefore, of necessity, useless and of no effect.

The ninth section of the Judiciary Act of 1789 confers exclusive original cognizance of all civil causes of admiralty jurisdiction upon the district courts, 'including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts, as well as upon the high seas.'

When this clause first came under the consideration of the courts, there was a good deal of difficulty in determining whether the words, including all seizures, &c., were intended as being comprehended within the grant of general admiralty jurisdiction, or as, simply, within the cognizance of the district courts, as the words were ambiguous, and might be construed as either within the cognizance of the district courts or within the class of cases of general admiralty jurisdiction. The difference was material; as if not within the general admiralty jurisdiction, the parties were entitled to a trial by jury; otherwise not. This question was first decided in the case of the United States v. La Vengeance, the court holding that the cases were included within the general admiralty jurisdiction. The point was contested in several subsequent cases, but the court adhered firmly to its first decision. The act, notwithstanding these decisions, was still effectual and necessary to sustain the general jurisdiction, as the limit of tide-waters then prevailed in the admiralty courts, and the jurisdiction given by the act extended to waters which were navigable from the sea, irrespective of the tide. The seizures, also, in many instances, would be made within the body of a county-infra corpus comitatus-within which the admiralty jurisdiction was not yet admitted. (Waring v. Clarke, 5 How., 441.)

But since the decision in the case of The Genesee Chief, this clause, above recited, is no longer of any force. The general jurisdiction in admiralty exists without regard to it; and if any effect should be given, instead of extending, as was intended, it would restrict it; and, for the reason given in respect to the act of 1845, it has become useless and of no effect.

DECREE AFFIRMED WITH COSTS AND INTEREST.


text: Talk:The Eagle (75 U.S. 15)/Opinion of the Court


text:
Mills v. Smith

ERROR to the Circuit Court for the Northern District of Illinois: the case was this:

In 1818, the United States issued to one Parmely, a soldier of the war of 1812, and then residing in Connecticut, a patent for a tract of land in Illinois. In 1837, he sold the land to Edwin Lacy, and receiving payment in full for it, executed and delivered to Lacy, at the time, a regular deed. This deed, however, was never recorded, and at Lacy's death, in 1848, his family had no information respecting the deed, or the location of the land. Lacy left one son and only heir named Andrew.

On the 14th of August, 1854, a certain Benjamin Lombard, a dealer in military bounty lands, went to Parmely, in Connecticut, and having had some conversation with him as to whether any former deed had been made by him, obtained from him for the consideration of $19.56, a quit-claim deed to James Lombard. Benjamin Lombard took also from Parmely (indorsing it on the deed), an affidavit proving Parmely's identity with the original patentee, and stating 'that the deed which he has this day given for his bounty land is the only deed ever given by him for the said claim whatsoever.' This deed was recorded August 28, 1854.

On the 14th of November, 1854, a brother of Lacy, the original purchaser, having heard of Lombard's visit to Parmely, and of his obtaining a quit-claim deed for the tract, which he had understood, years prior, had been sold to his deceased brother Edwin, applied to Parmely and obtained a deed conveying the land to Andrew Lacy, son and only heir of Edwin Lacy, deceased. This deed contained a recital and statement to the effect that the land had been sold to Edwin Lacy, in his lifetime, and about October 1st, 1850, and paid for; that no deed had been given, or, ''if there had been, that it was lost. This deed was recorded November'' 25, 1854.

Andrew Lacy died soon afterwards, and by his will his title to the land went to one Mills.

James Lombard sold his right in the tract, for which he had got the deed already mentioned from Parmely, to a certain Smith, on the 7th December, 1855; the deed not being recorded until October 12th, 1858.

Mills now brought ejectment against Smith, and on the trial the original deed from Parmely to Edwin Lacy (the fact of having made which, or any like which Parmely by affidavit on the back of his deed to Lombard had denied), accidentally turned up.

The question was whether, under the recording acts of Illinois, which enact that deeds shall take effect, as against creditors and subseq uent purchasers, from the time that they are filed of record, the title was to be regarded in Mills, or whether in Smith?

The only important witnesses were Parmely himself and Benjamin Lombard, who had procured the deed for James Lombard. Both testified in regard to the facts of the case as already given; Parmely testifying that before he made the deed to James Lombard, Benjamin Lombard, a stranger to him, had hunted him out, and represented to him that there was no deed to Edwin Lacy on record; a representation which led him, Parmely, to believe that he might never have made a deed to Edwin Lacy, but only have handed over to him the patent issued by the government; that this Lombard stated to him that the town where the land lay wanted to get soldiers' rights, and would give $17 a deed, but no more; that the land had been sold for taxes, and that the right of redemption had expired, but that the town would give something. 'I told Mr. Lombard,' the witness continued, 'that I had disposed of the land to Edwin Lacy, who was then dead, and that I did not known that I could give anybody else a deed. Mr. Lombard said that he did not know whether I could or not. If I would only give him a deed he would give me the money.' The deed was then executed; Lombard, according to Parmely's testimony, himself drawing the affidavit, indorsed on it, and reading it to Parmely, who did not examine it to see if it was read correctly or not.

Benjamin Lombard's testimony went to prove that Parmely had assured him repeatedly that he had never before made a deed to the land to any one; that although he had been negotiating a trade for it with Edwin Lacy, the trade had fallen through from Lacy's not doing as he agreed to do; that Andrew Lacy, the son and heir, had been to him to get a deed, which he, Parmely, refused to give him, for the same reason that he had not conveyed the land to Edwin Lacy, namely, that no consideration has been paid.

The court below (Davis, J.) charged the jury in substance as follows: refusing to give instructions in pursuance of specific requests; considering that these did but request in a specific form, instruction which in substance had been already given in a general one.

GENTLEMEN OF THE JURY: It is not controverted, on the part of the defendant, that the title as shown in the plaintiff would be a good, legal, subsisting title, independent of the recording laws.

Now as respects the defendant's title. The deed of 1837, from Parmely to Lacy, not being recorded at the time the deed was made by Parmely to Lombard, the first question to be determined is, was Lombard a bon a fide purchaser within the meaning of the recording laws? Those laws provide that every deed shall take effect from the time it is filed for record, as against creditors and subsequent purchasers without notice. This deed, not having been recorded, from Parmely to Edwin Lacy, in August, 1854, the first question for you to determine is, was Lombard a purchaser without notice of the previous conveyance made to Edwin Lacy, and had he paid value for the land? The evidence upon that point consists of the testimony of Parmely and Benjamin Lombard. Of course, Benjamin Lombard being the agent of James Lombard in his purchase, notice to Benjamin is notice to James.

It is necessary that James Lombard, or Benjamin Lombard, should have had notice of the previous conveyance to Edwin Lacy, or of some fact sufficient of put a prudent man upon inquiry. In other words, there must have been good faith on his part when he made the purchase.

And the question for you to determine upon all the testimony is, whether there was any knowledge brought home to Benjamin Lombard that there had been a transfer, legal or equitable, made of this land to Edwin Lacy? If that fact was brought home to him, or if any fact that would warrant a prudent man in coming to the conclusion that there was a valid transfer, then he could not be said to be a purchaser in good faith; and of course the registry laws did not protect him in the purchase. If he was a purchaser in good faith, then it makes no difference whether Smith was or was not, because his purchase protects Smith-he having purchased from him; but if he was not a purchaser in good faith, the next question is, did Smith purchase in good faith? The same rule is applicable substantially to him as to Benjamin Lombard, the agent of James Lombard. It is necessary that he should have purchased the land and paid the money for it without knowledge of this previous deed. If he knew of the existence of this previous deed to Edwin Lacy, or had knowledge of any fact which would satisfy a prudent man, so as to put him upon inquiry that there was a valid sale made to Edwin Lacy before he paid the purchase-money, then he could not be considered a purchaser in good faith.

But it is contended, on the part of the plaintiffs, that inasmuch as there was a deed from Parmely to Andrew Lacy on record on the 25th of November, 1854, and as that recited that he had made a conveyance or transfer of the land to Edward Lacy many years before, that was constructive notice to the defendant of the conveyance. I am hardly prepared to admit that as a rule of law. If he had read this deed or the record of it, or saw it; if, in other words, he had actual notice, then, as a matter of course, he would be bound by it, so far as such recital could bind him; but I hardly think that the fact it was simply on record would be constructive notice to him, so as to prevent him from being a bon a fide purchaser.

Parmely, when the recital was made, had no title to the land, according to the record, because the deed to James Lombard was recorded the 28th of August, 1854, before this deed was made to Andrew Lacy, and it would be a hard rule, it seems to me, to hold that the recital in a deed attempting to convey land which the man had no right to convey, would operate as constructive notice to a third party. Therefore, the court instructs you that it was necessary that Smith should have had actual notice of this previous deed, or of some fact which would satisfy a prudent man that there had been a transfer of the land, before he paid the purchase-money. If he had, then he would not be a purchaser protected by the registry laws; if he had not this notice, then he would be protected, whether Lombard was a bon a fide purchaser or not, because the rule you will understand to be this, as counsel on both sides admit, that the defendant can protect himself by showing that Lombard is a bon a fide purchaser without notice, or that he himself is a bon a fide purchaser without notice.

Gentlemen, you will see that the question turns entirely on the view you take, from the evidence, upon the fact whether these two persons are purchasers in good faith, without notice; that is, Benjamin Lombard and the defendant. If either of them is a purchaser in good faith, then the defendant is protected. You must find that they both had knowledge, before you can find a verdict for the plaintiff. If they both had knowledge of this pre-existing title, then, as a matter of course, the plaintiff's title stands good, otherwise not.

VERDICT AND JUDGMENT ACCORDINGLY.

Mr. E. S. Smith, for the plaintiff in error, contended that the testimony of Lombard was incredible, and was in fact denied by Parmely; that Lombard was not a purchaser for value, but a prowling hunter of old soldiers' rights; that the court ought to have charged specifically that a deed obtained upon such false representation was absolutely void, and that notice of a sale was sufficient, independently of notice of a deed; that the charge as to the effect of the recital did not come up to the testimony, for that it was plain that Lombard had been looking through the records, and had seen the recital on them of a former deed.

Mr. H. M. Wead, contra, argued that no one could read the evidence and fail to arrive at the conclusion that neither had notice of the prior conveyance to Andrew Lacy, because the existence of that conveyance was not known until after the commencement of this suit; that if either Lombard or Smith were innocent purchasers, then Smith was to be protected; that it was well settled, both in England and in this country, that if a person purchased for a valuable consideration with notice, he might shelter himself under the first purchaser.

Mr. Justice GRIER delivered the opinion of the court.

title: Mills v. Smith


text: Talk:Mills v. Smith

title: Talk:Mills v. Smith


text:
Page:A short history of social life in England.djvu/32

12 wine, no tea, no coffee, no butter, no sugar, no potatoes, no eggs, no fowls—food stuffs apt to be popularly considered as essential to life. Nevertheless, the ancient Briton was a man of fine build and strong physique, ever ready to do and dare. True, he was short-lived in comparison with modern man, as he died about the age of fifty-five, but he was longer-lived than his predecessors, who had died for the most part at forty-five: so presumably the conditions of life were already improving.

The ancient Briton wore his hair long and shaggy, the women arranging theirs in shocks or pyramids held together by metal hairpins twenty inches long.

Though the skins of animals may still have clothed a number of the primitive inhabitants of these islands, yet the majority probably dressed in cloaks of wool or garments of linen. Woollen caps, woollen shawls with fringe at the end, and woollen gaiters have been found in graves belonging to this period, suggestive, it has been pointed out, of Dr. Jaeger's modern manufacture. Remains of leather, representing some sort of primitive boots, have likewise been found, together with other interesting relics of the period. Their occupations were more varied than those of their


text:
Mills v. Smith/Opinion of the Court

The counsel, in their arguments in this case, seem to have forgotten that this court have no right to order a new trial because they may believe that the jury may have erred in their verdict on the facts. If the court below have given proper instructions on the questions of law, and submitted the facts to the jury, there is no further remedy in this court for any supposed mistake of the jury.

On examining the charge of the court below, we find a clear exposition of the legal questions arising in the case.

The jury were properly instructed that the deed of Parmely, the patentee, to Edwin Lacy, in 1837, would confer a good legal title on the plaintiff independently of the recording laws. But as this deed was not recorded, the question to be determined was, whether the defendant, who claimed title under the same patentee, through a deed dated 14th of August, 1855, and recorded, was a bon a fide purchaser without notice, and had paid value for the land. It was contended that a recital in a deed from Parmely to one Andrew Lacy, after the deed to James Lombard was recorded, and under which the defendant claims, would operate as constructive notice to a third party. But the court instructed the jury that it was necessary that the purchaser should have actual notice of the previous deed, or of some fact which would satisfy a prudent man that there had been a transfer of the land. In conclusion, after various propositions for specific instructions, amounting substantially to the instructions already given, the court summed up by telling the jury, that they would see that the question turned entirely on the view which they might take from the evidence, upon the fact whether Benjamin Lombard, Jr., and the defendant were purchasers in good faith, without notice. 'If either of them is a purchaser in good faith,' said the court, 'then the defendant is protected. You must find that they both had knowledge before you can find a verdict for the plaintiff. If they both had knowledge of this pre-existing title, then, as a matter of course, the plaintiff's title stands good, otherwise not.'

We see no error in these instructions.

After having thus correctly submitted the case to the consideration of the jury, the court were not bound to answer a catechism of questions which could only confuse their minds and lead to erroneous conclusions.

JUDGMENT AFFIRMED.

title: Mills v. Smith/Opinion of the Court


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


text:
Stansbury v. United States

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

A statute of the United States, passed August 23, 1842, enacts as follows:

'No officer, in any branch of the public service, or any other person, whose salary, pay, or emoluments, is, or are fixed by law or regulations, shall receive any additional pay, extra allowance, or compensation, in any form whatever, for the disbursement of public money, or any other service or duty whatever, unless the same shall be authorized by law, and in the appropriation therefor explicitly set forth, that it is for such additional pay, extra allowance, or compensation.'

A subsequent statute, one of the 26th August, in the same year, enacts by its twelfth section, as follows:

'That no allowance or compensation shall be made to any clerk or other officer, by reason of the discharge of duties which belong to any other clerk in the same or any other department; and no allowance or compensation shall be made for any extra services whatever, which any clerk or other officer may be required to perform.'

With these two enactments in force, Stansbury, being at the time a clerk in the Department of the Interior, was appointed in 1851, by the Secretary of the Interior, at that time Mr. Stuart, an agent to proceed to Europe and prepare for the department an account of the London Industrial Exhibition. In this employment, he was engaged in London, and subsequently at Washington, in the preparation of his report, for a term of seventeen months; but during all the time of this service, held his place and drew his pay as a clerk in the Interior Department. The secretary promised, in writing, to pay his expenses and allow him a reasonable compensation for his services. The actual expenses of the agency were paid, but on his return, the Secretary of the Interior, now Mr. McLelland, declined to pay him anything more. He accordingly brought suit to recover from the United States the value of his services. The Court of Claims decided that the claim was within and barred by the act of August 23d, 1842, and was not removed therefrom by the act of the following 26th, and ordered judgment to be entered for the United States.

Mr. Caverly, for the appellant:

If the act of 23d August had, at its passage, any reference to clerks in the departments, it has been repealed so far as it related to them by the subsequent enactments of the 26th August. It is repealed, because these latter enactments prescribe a rule involving the same subject-matter; and make, in fact, an independent rule for clerks or other officers in the departments; refusing pay to them for doing the duties of other clerks or officers, and refusing pay to them for extra services of any kind. While the latter act declares that a clerk shall have no pay for services done in the place of another, and no extra allowance whatever, it also, in its legitimate effect, declares that a clerk may have pay on a special contract in a distinct service, foreign to clerkships and extra allowances. These statutes were never intended to prevent the holding of two distinct offices at the same time the one entirely foreign to the other. The statute of August 23d, 1842, is in derogation of private rights, and is, especially as against an equitable, meritorious claim, to be construed stricly.

Mr. Stansbury having been commissioned to perform a distinct agency in a foreign country, such agency is to be regarded as inconsistent with a clerkship here. His clerkship for the time was in fact suspended during his nine months absence. If his family, during that period, have received his pay as clerk, there may have been a mistake in law of the department. But that does not preclude Mr. Stansbury from asking remuneration for the services which he did perform.

It is a fair presumption of law, that the Secretary of the Interior, in creating an agency to perform the service in question acted legally. It would not become the government to appoint Mr. Stuart to be Secretary of the Interior, and hold him forth to the world as worthy of public trust, and then to turn around and repudiate his contracts, and deprive innocent individuals of reasonable pay for services performed for the government, in violation of a contract officially made by him.

If, however, that government officer mistook his powers in sending Mr. Stansbury abroad, it was a mistake of the government. Her officer may have been ignorant of the law, but the government cannot now, by any principle of law, go behind her own act to avoid payment of the just obligation which her act induced.

Mr. Talbot, for the Attorney-General, contra:

Mr. Justice DAVIS delivered the opinion of the court.

title: Stansbury v. United States


text: Talk:Stansbury v. United States

title: Talk:Stansbury v. United States


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

The appellant insists that the written promise of the Secretary to pay him the value of his services, is a binding obligation on the government. But this is not so, for no authority of law existed for the promise. The secretary could not pay the claim, because there was no appropriation to pay it, and he was not authorized by Congress to create an agency to perform the service in question. He undoubtedly acted in good faith with Stansbury, and supposed that Congress would approve the mode he adopted for obtaining useful information, and ratify his proceedings; and his promise, under the circumstances, must be considered as a dependent one, to take effect, if Congress appropriated money to enable him to comply with it. Congress having failed to make the appropriation, the secretary was justified in refusing to pay the claim.

But he was justified in his refusal an another ground. The payment of the claim was forbidden by positive law.

The second section of the act of August 23d, 1842, declares that no officer of the government, drawing a fixed salary, shall receive additional compensation for any service, unless it is authorized by law and a specific appropriation made to pay it. When Stansbury was appointed in 1851, this law was in force, and afforded notice to all employees of the government, of the policy of Congress on the subject to which it relates. The law was passed to remedy an evil which had existed, of detailing officers with fixed pay to perform duties outside of their regular employment, and paying them for it, when the government was entitled, without this double pay, to all their services. The law prohibited, and was intended to do so, the allowance of such claims as these, made by public officers, for extra compensation, on the ground of extra services.

But the appellant insists, if the above act embraced clerks in the departments, its operation has been withdrawn from them by the twelfth section of the act of 26th of August, 1842. It is difficult to see how this conclusion is reached, because this section refuses to pay clerks or other officers in the departments for doing the duties of other clerks or officers, and refuses, further, to pay them for extra services of any kind.

There is no inconsistency between the provisions of the two acts, which were passed within a few days of each other, and were parts of a system, intended for the guidance of those in the employ of the government. These provisions furnished notice to all in authority, that in no event could clerks in the departments be paid for doing the work of their fellow-clerks, nor could they be paid for any other service, unless it was authorized by law, and followed by an appropriation to pay for it.

Stansbury's appointment was not authorized by law, nor was there any appropriation to pay for the services which he expected to render the department.

It follows, therefore, that the transaction between Secretary Stuart and himself was in violation of the statute, and cannot be the foundation of an action

JUDGMENT AFFIRMED.


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


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Reeside v. United States

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

In 1859, and subsequently, Reeside made certain contracts with the Postmaster-General to carry the mail until 30th June, 1862, over certain parts of Arkansas, Mississippi, and Louisiana. Each contract contained a provision that the Postmaster-General might discontinue or curtail the service, in whole or in part, whenever the public interests required it he allowing one month's pay on the amount of the service dispensed with. Early in 1861, as is known, the late rebellion in the Southern States broke out; the States above particularly mentioned, joining in it. In view of the condition of things, Congress enacted, on the 28th February, 1861:

'That whenever, in the opinion of the Postmaster-General, the postal service cannot be safely continued, or the post-office revenues collected, or the postal laws maintained on any post route, by reason of any cause whatever, the Postmaster-General is hereby authorized to discontinue the postal service on such route, or any part thereof, and any post-offices thereon, till the same can be safely restored,' and shall report his action to Congress.

And it was part of the case, as found by the court below, that on the 15th April following, 'a state of actual war' existed between the United States and the States in which the contracts were to be executed.

On the 27th of May, 1861, the Postmaster-General issued an order suspending the service on all the routes till further order, from and after May 31st. Reeside requested the Postmaster-General, instead of suspending the service, to annul the contracts. But this the Postmaster-General refused to do, and Reeside was informed that he would be held responsible under the contracts and be ordered to renew the service whenever, in the opinion of the Postmaster-General, it would be safe to do so.

No special notice of the discontinuance was ever served on him.

On the 13th July, 1861, Congress authorized the President, under certain circumstances which it set forth, to issue a proclamation declaring any one of several Southern States, which it named (and which included the three through which Reeside's contract called on him to carry the mail), or any part of it, to be in insurrection against the United States, and enacted that thereupon all intercourse should cease between the same and the citizens thereof and the citizens of the rest of the United States. On the 16th of August following, the President did issue such a proclamation, and declared these three States, along with some others, to be in insurrection, and prohibited the intercourse.

Reeside resided in Washington, and the case showed that it would have taken him twenty days to have gone to Arkansas, and to have disposed of his property on his several routes. No part of his stage property was removed from them.

Reeside, who had been paid up but to the 1st of June, 1861, and whom the Postmaster-General considered entitled to nothing more, now filed a petition in the court below, setting forth that taking into consideration the distance from the seat of government (where, as already said, he resided) to the place of service, he was entitled to receive a reasonable notice before suspending the mail service on the several routes where he was the contractor, and that he was entitled, at all events, to his mail pay for one month.

The court below dismissed the claim; and hence this appeal.

Messrs. Fuller and Carlisle, for the appellant:

The contracts had a term of thirteen months to run, when their further execution was suspended by order of the Postmaster-General. And the question is, whether the claimant is entitled to compensation, and if so, the measure of it?

Under the act of February 28th, 1861, the Postmaster-General might have discontinued the service, or under the contract, he might have annulled the service, and put an end to the contract. But he did neither. He simply suspended the service for the time being, leaving the contract unimpaired and in full force. For he notified to the claimant that he would be held responsible, and be ordered to renew the same whenever, in the opinion of the Postmaster-General, it should be safe to do so.

Hence, we submit that Reeside is not bound to accept one month's extra pay, which his petition asks for, as the measure of his arrearages, but is entitled to ask his full contract price for the thirteen months.

The Postmaster-General must have regarded the disturbed condition of the country, at the date of his order, as temporary; and thought that within the thirteen months the condition of public affairs would be such that the postal service would be resumed on the routes, else he would not have declined, upon the request of Reeside, to terminate the contract.

But if not entitled to pay for the thirteen months, Reeside may certainly claim pay till the 16th August, 1861; for the execution of the contract did not become impossible until the sovereign power declared all intercourse between the loyal and disloyal States illegal, which was this said 16th of August.

If, however, the contract continued neither for the whole term, nor until the sovereign power prohibited intercourse, then it must be because it was discontinued under the clause of the contract giving power to discontinue. This is the worst view for the appellant; but even under it, the right of one month's pay is clear.

Mr. Hoar, Attorney-General, and Mr. Talbot, contra:

The case shows, that from the 15th day of April, 1861, six weeks before the date of the order complained of, 'a state of actual was' existed between the United States and the States in which those contracts were to be executed.

The execution of the contract had become impossible by acts of the public enemies, owing to the ouster of the United States from its actual sovereignty over the territory through which the claimant's mail routes ran; and it had become so on the 16th of April, 1861, while the appellant was paid to the 1st of June of that year.

The order of suspension was a mere recognition on the part of the Post-Office Department of this state of war.

The suspension, caused by the war, cannot be held to be a suspension by the Postmaster-General, such as would give rise to a claim for one month's pay. Whether or not this suspension may of itself have operated as a final release of the contractor from his obligation to complete his contract, was not the duty of the Postmaster-General finally to determine. It was proper for that officer to decline to decide that question against his principal, the United States, as he did, by refusing formally to release the contractor from the obligations of his contracts.

Reply:

The finding by the court below of 'a state of actual war' on the 15th of April, is less a fact than an inference of law from the general history of the times. This court can take notice of this history and draw conclusions, as well as the court below.

Mr. Justice NELSON delivered the opinion of the court.

title: Reeside v. United States


text: Talk:Reeside v. United States

title: Talk:Reeside v. United States


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

Upon the facts of this case it is difficult to see how the government can avoid the payment of the month's pay upon any principle of justice or equity. The Postmaster-General, representing in this department the government, refused to put an end to the contracts; but insisted upon a suspension only at his pleasure, and at the same time gave notice that the contractor would be held responsible for a renewal when he (the Postmaster-General) should deem it safe to renew them. Of course, the stage property must be kept on hand at the expense of the contractor, ready to render the service when ordered; and, according to the views of the government, without either remuneration or any allowance for the same, not even the one month's extra pay on the amount of service dispensed with, which, in express terms, is provided in the contract.

The only answer given to all this is, that a civil war existed between the United States and the States within which these mail routes lay, and that all intercourse with them was illegal upon the principles of international law. Assuming this to be so, the government would have been justified in putting an end to the contracts; and, in the absence of any interference on the part of the government, the contractor might also have terminated them. But the government did interfere, and forbid the annulment or termination of the service, and insisted, notwithstanding a state of civil war, that the contract should continue, and the service be renewed at the pleasure of the Postmaster-General. The truth is (and this affords an explanation of the otherwise extraordinary dealings with this contractor) that, although a state of war existed between the United States and several of the Southern States, or portions of them, the territorial limits within which it existed was not well defined. Even as late as July 13th, 1861, an act of Congress was passed authorizing the President, under the particular circumstances stated therein, to issue a proclamation declaring any one of these States, or any part of it, to be in a state of insurrection against the United States, and thereupon all intercourse should cease between the same and the citizens thereof, and the citizens of the rest of the United States. This proclamation was not issued till the 16th of August following, when certain States, including Arkansas, Mississippi, and Louisiana, were first declared to be in a state of insurrection within the act, and all intercourse with the loyal States was prohibited.

This intercourse was but partially interrupted at the time these contracts were suspended; and although a disloyal feeling prevailed, and was apparently increasing, yet the policy of the government was to conciliate the people, and separate them, if possible, from the leaders; and one of the means used for this purpose was to continue these mail and postal accommodations so long as any hope existed of preventing the rebellion or continuing peaceful relations. The suspension of these contracts, instead of putting an end to them at once, and the demand upon the contractor to keep his stage property on hand ready to render service, doubtless grew out of this policy.

The act of 28th February, 1861, provided that whenever, in the opinion of the Postmaster-General, the postal service cannot be safely continued, &c., for any reason, he was authorized to discontinue the service till the same could be safely renewed. It was, doubtless, under this act that he suspended the service in the present case. But this act had no effect to control the legal import of the contracts, nor did it confer any greater power than he possessed under them. According to their terms, he had the power to discontinue or curtail the service on any route for any cause, allowing one month's pay.

It may, we think, be well doubted if the Postmaster-General had the power under this act to discontinue the service, and still hold the contractor to renew it. It simply confers power 'to discontinue,' for any cause, 'the postal service on said route, or any part thereof, and any post-offices thereon, till the same can be safely restored, and shall report his action to Congress.' Nothing is said as to the duty or rights of contractors; and, in the absence of any provision on the subject, it would seem to be unreasonable to hold him responsible to renew the service at any future indefinite period. But it is unnecessary to decide this point.

DECREE REVERSED, and cause remanded, with directions to allow one month's pay under the contracts.


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


text: Furman v. Nichol

title: Furman v. Nichol


text: Talk:Furman v. Nichol

title: Talk:Furman v. Nichol