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The Elizabeth Jones the Willis/Opinion of the Court

On the twelfth of August, 1873, James R. Slauson and William R. Pugh filed a libel in admiralty, in the district court of the United States for the Northern district of Illinois, against the bark Elizabeth Jones, to recover damages for the total loss of the schooner Willis, owned by them, and of the freight money on her cargo, through a collision which occurred between the two vessels shortly before 2 o'clock A. M. on the eleventh of November, 1872, on Lake Erie. The Willis was on a voyage from Chicago to Buffalo with a cargo of barley, and the Jones was bound from Buffalo to Chicago with a cargo of coal. The libel alleged that the course of the Willis was E. by N., the wind being from the southward, and about S., and about a six-knot breeze; that about 2 o'clock A. M. the lookout reported a green light half a point on the starboard bow of the Willis, and apparently two or three miles distant; that the Willis had the wind free, and the vessel showing the green light, and which afterwards proved to be the Jones, was, to those on board of the Willis, evidently by the wind and close-hauled; that the helm of the Willis was put to starboard, and she went off a point and was steadied; that the Jones came on, still showing her green light, when, in order to give her a wide berth, the helm of the Willis was again put to starboard, and she went off another point and was steadied; that the Jones continued to approach, but, apparently, not holding her course, keeping away, though still showing her green light only; that the helm of the Willis was put to starboard, and she swung off so as to head N. E.; that about the same time, the Jones showed both her red and green lights; that the Jones immediately came into collision with the Willis, head on, striking her amid-ships, at right angles, crushing in her side, and causing her to sink in a very short time; that, had the Jones kept her course, she would have passed the Willis on her starboard hand, safely; and that the Jones not only kept away while she was approaching the Willis, but when she had neared the Willis, so that there was imminent danger of colliding, she improperly ported, instead of starboarding her helm.

On the first of October, 1873, the owners of the Jones filed their answer to the libel. It averred that the Willis had the wind free, about a six-knot breeze, from about S.; that the Jones was sailing by the wind, close-hauled; that the Willis discovered the Jones two or three miles distant; that immediately preceding the collision the Willis put her helm to starboard, and the Jones put her helm to port, but in approaching the Willis the Jones did not change her course until a collision became imminent, and the Willis made no change of course to avoid the Jones, except, as before stated, immediately preceding the collision; that the lookout of the Jones discovered what proved to be the light of the Willis from two to four miles distant; that she 'was approaching the Jones in an opposite direction from the course of the Jones; that, when the light of the Willis was first seen, it was almost dead ahead, and continued on that line as the vessels approached each other;' that the Jones was kept steadily on h r course until, seeing that there was danger of a collision, her helm was ported, but those in command of the Willis caused her helm to be put to starboard, which threw her across the bows of the Jones and caused the collision, and that it resulted entirely from the fault of the Willis. On the fourth of October, 1873, the owners of the Jones filed a cross-libel against the Willis, to recover for damage caused to the Jones by the collision. It contained substantially the same averments as the answer to the libel of the Willis, adding the fact that the Jones struck the Willis between her fore and main rigging.

The case was heard on pleadings and proofs by the district court, in February, 1875, and after the hearing and before a decision, leave being granted to the owners of the Jones to amend their answer and their cross-libel, they filed an amended answer on the eighth of March, 1875. It varied the allegations of the original answer, by stating that the Willis discovered the Jones about three miles distant, but did not see the green light of the Jones; that, immediately preceding the collision, the Jones began to put her helm to port, but, seeing that the Willis was starboarding her helm, immediately changed it to starboard; that the lookout of the Jones discovered, about half a point on his port bow, and three miles off, the red light of a vessel that proved to be the Willis; that, after the light of the Willis was first seen, it continued to show more on the port bow of the Jones; that the Jones was kept on her course until immediately before the collision, when she began to port her helm, but, seeing that the Willis was starboarding her helm, immediately changed it to starboard, but the Willis continued to starboard her helm, which threw her across the bows of the Jones; and that the starboard bow of the Jones came in contact with the starboard side of the Willis about amid-ships. On the same day the owners of the Jones filed an amended cross-libel, containing substantially the same averments as the amended answer, in variation of those in the original cross-libel. The original libel was, by stipulation, made the answer to the cross-libel.

In July, 1875, the district court entered a decree, finding that the Willis was in fault, dismissing her libel, pronouncing for the libelants in the cross-libel and awarding to them $1,500 damages. The owners of the Willis appealed to the circuit court. In August, 1881, that court entered a decree, finding that the Jones was in fault, reversing the decree of the district court, dismissing the cross-libel, pronouncing for the libelants in the original libel, and awarding to them $32,826.75 for damages, and interest. From that decree the owners of the Jones have appealed to this court.

The circuit court filed the following findings of fact: 'First. That on the eleventh day of November, 1872, a collision occurred between the schooner Willis and the bark Elizabeth Jones, on Lake Erie, at about 16 miles east of Point au Pelee. The libelant, the schooner Willis, was bound for Buffalo; the respondent, the bark Jones, was bound for Chicago. The vessels collided at a quarter before 2 in the morning. The Willis was sailing E. by N. The bark was sailing a general course S. W. by W. 1/2 W., steering by the wind. The wind was S., about a six-knot breeze, at the time of the collision. Previous to the collision it had been S. E., picking up to the westward. At 12 o'clock the wind was E. At 20 minutes after 1 it was S. E. At the time of the collision it was S. The Willis had the wind free, and the bark was close-hauled on the port tack. Both vessels had their proper lights and watch on deck. The vessels were between two and four miles apart when they sighted each other's lights. The night, though it occasionally clouded up, was favorable, and light enough to make objects easily discernible for two or three miles. The schooner was laden with a cargo of barley, and the bark with a cargo of coal. When the vessels collided, the starboard side o the stem of the bark struck the schooner on the starboard side between the fore and main rigging-struck her amid-ships, at about right-angles, on the starboard side. The schooner and her cargo sank in less than half an hour and was a total loss. The injury sustained by the Jones was fixed in the decree of the district court at $1,500. Second. The officers and men of the schooner Willis first sighted the green light of the bark Jones, about half a point off the schooner's starboard bow, at a distance of about three miles off, and continued to see the green light of the Jones until the vessels were within a length of each other, when the Jones opened her red light. Third. The helm of the Willis, as soon as the light of the Jones appeared, was at once put to starboard, and she went off a point and then steadied, the light of the Jones thereupon opening about a point and a half. When about two miles distant the helm of the Willis was again put to starboard a point, and then steadied, the light of the Jones thereupon opening about two points. Fourth. That the mate in command of the Jones gave the following order immediately after first sighting the light of the Willis: 'I went aft to the man at the wheel to see how she was headed, and her sails were then kind of shaking. I told him to 'look out and keep the sails full.' Then I went forward again. By the time I got forward the sails was lifting. Again I told him to keep the sails full-'draw up and keep the sails full." Fifth. At the moment the vessels were approaching collision, the helm of the Willis was put hard a-starboard, and she must have swung so as to head N. E. and thus have exposed her starboard side. At this juncture the Jones ported her helm, and the vessels collided, the stem of the Jones striking the Willis amid-ships, on the starboard side.'

The circuit court also filed the following conclusions of law: 'First. The court finds, as a conclusion of law, that this case falls under the twelfth article of the regulations for preventing collisions at sea, applicable to the navigation of vessels. Second. That the bark Jones, being close-hauled, and the schooner Willis being free, it became the duty of the Willis to keep out of the way, and she, having come into collision, must show why she did not discharge that duty and avoid the collision. Third. The court finds, as a matter of law, that each of the changes heretofore recited in the findings of fact, as having been made by the Jones, was improper. Fourth. The court also finds, as a matter of law, that the changes recited in the findings of fact, as having been made by the Willis, were proper.'

There is a bill of exceptions, containing exceptions by the claimants of the Jones to the first, third, and fourth conclusions of law. Our review of the decree below is limited by statute to a determination of the questions of law which arise on the record, under the facts stated by the circuit court. The opinion of that court, although, as required by a rule of this court, annexed to and transmitted with the record, is no part of it.

When this collision occurred, the regulations in force for preventing collisions on the water were those prescribed by the act of April 29, 1864, (13 St. 58.) Articles 11, 12, 18, 19, and 20 of the 'Steering and Sailing Rules' in that act have a bearing on this case, and are as follows:

'TWO SAILING SHIPS MEETING.

'Art. 11. If two sailing ships are meeting end on, or nearly     end on, so as to involve risk of collision, the helms of both      shall be put to port, so that each may pass on the port side      of the other.

'TWO SAILING SHIPS CROSSING.

'Art. 12. When two sailing ships are crossing so as to     involve risk of collision, then, if they have the wind on      different sides, the ship with the wind on the port side      shall keep out of the way of the ship with the wind on the starboard side,      except in the case in which the ship with the wind on the      port side is close hauled, and the other ship free, in which      case the latter ship shall keep out of the way. But if they     have the wind on the same side, or if one of them has the      wind aft, the ship which is to windward shall keep out of the      way of the ship which is to leeward.'

'CONSTRUCTION OF ARTICLES 12, 14, 15, AND 17.

'Art. 18. Where, by the above rules, one of two ships is to     keep out of the way, the other shall keep her course subject      to the qualifications contained in the following article:

'PROVISO TO SAVE SPECIAL CASES.

'Art. 19. In obeying and construing these rules due regard     must be had to all dangers of navigation, and due regard must      also be had to any special circumstances which may exist in      any particular case rendering a departure from the above      rules necessary in order to avoid immediate danger.

'NO SHIP UNDER ANY CIRCUMSTANCES TO NEGLECT PROPER     PRECAUTIONS.

'Art. 20. Nothing in these rules shall exonerate any ship, or     the owner, or master, or crew thereof, from the consequences      of any neglect to carry lights, or signals, or of any neglect      to keep a proper lookout, or of the neglect of any precaution      which may be required by the ordinary practice of seamen, or      by the special circumstances of the case.'

A reference to the statements of the original answer of the Jones, and of her original cross-libel, shows that the case she first attempted to make was one under article 11, of two sailing vessels meeting end on, or nearly end on, so as to involve risk of collision, where both are required to port. This is shown by the averments that the Willis 'was approaching the Jones in an opposite direction from the course of the Jones; that, when the light of the Willis was first seen, it was almost dead ahead, and continued on that line as the vessels approached each other;' and that the Jones, seeing danger of a collision, ported, but the Willis starboarded. After the trial before the district court, the amended answer and the amended cross-libel set up a case where the Jones saw, on her port bow, the red light of the Willis; that light continued to show more on the port bow of the Jones; the Willis did not see the green light of the Jones; and, immediately before the collision, the Jones began to port her helm, but, seeing that the Willis was starboarding, changed her helm to starboard. This new theory on the part of the Jones as to her defense indicates plainly that she was conscious that her porting was a wrong maneuver, and that she undertook to account for the collision by alleging that she saw the red light of the Willis on her port bow, and that it opened more on that bow, and that the Willis, by starboarding after that, came across her path. This theory is negatived by the findings of the circuit court.

The salient facts exhibited in those findings are as follows: The Willis was sailing E. by N. The Jones was sailing a general course S. W. by W. 1/2 W., steering by the wind. The collision occurred at a quarter before 2 A. M. At 12 midnight the wind was E. At 20 minutes past 1, 25 minutes before the collision, the wind was S. E. At that time, if the Jones was sailing S. W. by W. 1/2 W., her course was nine points and a half from the wind, and she was not close-hauled. She could certainly, though a bark, hold the wind at seven points off. At the same time, the Willis, if sailing E. by N., was five points from the wind. The wind being a six-knot breeze, it is plain, in view of the combined speed of the vessels, that they had not yet seen each other 25 minutes before the collision. The wind was hauling to the southward, and changed the four points, to S., in those 25 minutes. If, because of that change of the wind, the Jones, to hold the wind, fell off to seven points from the wind, she would be heading W. by S., or directly opposite to the E. by N. course of the Willis.

The Willis made the green light of the Jones about half a point on her starboard bow, about three miles off, and continued to see that green light till the Jones was within a length off, when the Jones opened her red light. As soon as the Willis saw the green light of the Jones, she put her own green light against it by starboarding, and went off a point, and then steadied; that is, she headed E. N. E. It follows that she showed her green light to the Jones. This starboarding by the Willis was when the vessels were about three miles apart, and from 15 to 18 minutes before the collision, as their combined speed was from 10 to 12 miles an hour. The Jones must have seen that the Willis was falling off, and trying to get out of her way. Green light to green light was safety. When the Willis thus headed E. N. E., the green light of the Jones was one point and a half on her starboard bow. When the vessels were about two miles apart, that is, from 10 to 12 minutes, the Willis fell off one point more, to N. E. by E., and the green light of the Jones got to be two points on her starboard bow. All this time the Willis was trying to get out of the way of the Jones. She did so in a proper manner, by carrying her own green light away from the green light of the Jones, and by taking a course which did not and could not cross the course of the Jones. When the Willis thus, at two miles distance from the Jones, headed N. E. by E., the Jones with the wind S., would, if close-hauled at seven points from the wind, head no further off than W. by S. At the collision, the Willis was heading N. E., or one point more off; and the starboard side of the stem of the Jones struck the starboard side of the Willis amid-ships, at about right angles. To do this, the Jones must have headed about N. W., which was a change, by porting, of five points from her course of W. by S., which latter course, with the wind S., would have allowed her, at seven points off, to be close-hauled, and have her sails full.

The Jones ran into danger by porting. She did not port to avoid collision or immediate danger. She ported when she must have seen all the time that the Willis was going away from her. This porting by the Jones was no part of keeping her course, and it caused the collision. It was a departure, by the Jones, from the course which the Willis, constantly seeing the green light of the Jones, had a right to think the Jones would keep, especially in view of the persistent falling off of the Willis. It was, therefore, a change of course by the Jones. It was a change, by her, across the course of the Willis to the extent of five points beyond her close-hauled course of W. by S.

Conceding it to have been the duty of the Willis, under article 12, to keep out of the way of the Jones, it was equally the duty of the latter not to baffle or prevent the efforts of the Willis to that end. Her departure from the requirement of article 18, that she should keep her course, cannot be justified under article 19, because there were no special circumstances which rendered such departure necessary in order to avoid immediate danger. In The Elizabeth Jenkins, L. R. 1 P. C. App. 501, it is laid down that, if a ship bound to keep her course under article 18, justifies her departure from that course under the words of article 19, she takes upon herself the obligation of showing both that her departure was, at the time it took place, necessary in order to avoid immediate danger, and that the course adopted by her was reasonably calculated to avoid that danger. Under article 20, the special circumstances of the case required that the Jones should be careful not to port as and when she did. Article 20 was in force at the time of this collision, although it is not re-enacted in the Revised Statutes. Why it was omitted is not apparent, as it had not been repealed. It was one of the articles in the British act of 1862, (25 & 26 Vict. c. 63,) from which our act of 1864 was taken, and it still remains an article in the regulations promulgated by the British order in council of August 14, 1879, (4 P. D. 241,) which states that it has been made to appear that the government of the United States is w lling that those regulations shall apply to ships of the United States, whether within British jurisdiction or not, after September 1, 1880. We do not intend to intimate, however, that the precautions it enacts are not to be enforced as parts of the general law of navigation, though not now embodied in any statute.

The circuit court held that each of the changes recited in the findings of fact, as having been made by the Jones, was improper; and that the changes recited therein as having been made by the Willis were proper. In regard to the Jones, it is contended for her that she was at liberty to make such variations from her course as the wind rendered necessary, to enable her to keep her sails filled and keep on her port tack. It must be concluded, from the fourth finding of fact and the third conclusion of law, that the Jones was maneuvered on two occasions in such a manner as First, to allow her sails to shake; and, second, to allow her to fall off and fill her sails; that this falling off was effected by putting her helm up or to port; and that the circuit court regarded these maneuvers as changes, and as improper ones. In view of what it is found the Willis was doing, it is plain that these changes were calculated to baffle the efforts of the Willis, by starboarding, to get away from the Jones; and that they amounted to a following up of the Willis by the Jones. Although the wind had got as far as S., the Jones had no right to persist in falling off towards the Willis to an extent sufficient to produce a collision, when the Willis was all the while going away in the same direction. The duty of the Jones to keep her course did not permit her to do so in such a way as to bring about a collision with a vessel whose green light was constantly receding. There is no idea appertaining to keeping a course which justifies holding to it in such way as to bring on a peril. The only principle inherent in it is to so act as to enable the other vessel, on whom the duty rests, to adopt with success means of getting out of the way.

It is apparent that, notwithstanding the alleged endeavor of the Jones to keep close-hauled, with the wind S., the Willis, by her starboarding two points, from a course E. by N. to a course N. E. by E., would have gone clear of the Jones, but for the porting of the Jones, as found in the fifth finding of fact, which carried her head around at least five points towards the Willis. The following diagram illustrates the courses and bearings of the two vessels, prior to any starboarding by the Willis and to any porting by the Jones:

It shows the Willis on a course E. by N., and the Jones on a course S. W. by W. 1/2 W., five points and a half from S. At that time the vessels were three miles apart, or 15 to 18 minutes. When they were two miles apart, or 10 to 12 minutes, after the Willis had twice starboarded, and to N. E. by E., the green light of the Jones bore two points on the starboard bow of the Willis. Then, with any proper falling off of the Jones to hold a S. wind, even to the extent of seven points, or to W. by S., when the Willis was on a course N. E. by E., or two points away from the course of the Jones, there would have been no collision, if the Jones had not ported five points more.

It is contended for the Jones that the Willis should have ported, instead of starboarding. But, as she saw the green light of the Jones on her starboard bow, to have ported would have thrown her across the course of the Jones, as shown by the following diagram:

By starboarding and going away from the green light of the Jones, the Willis took a course of safety, and, in the language of the cases, 'determined the risk.' Article 12 applies only to cases where the vessels 'are crossing so as to involve risk of collision.' Even assuming, on the facts found, that these vessels were crossing, so as to involve risk of collision, when they first sighted each other, the Willis 'determined the risk' when she had gone off two points by starboarding, and brought green light to green light. This is the point in judgment in The Earl of Elgin, L. R. 4 P. C. App. 1. But it is urged for the Jones that the porting mentioned in the fifth finding was a porting in extremis, and therefore excusable. The finding is not to that effect. The changes made by the Willis are found to have been proper and were proper. This being so, no fault of the Willis induced the final act of porting by the Jones. To be an excusable mistake in extremis, a pardonable maneuver, though contributing to or inducing a collision, when the maneuver would have been faulty if not excusable, it must be one produced by fault or mismanagement in the other vessel. New York & Liverpool U.S. Mail S.C.o. v. Rumball, 21 How. 372, 383; The Nichols, 7 Wall. 656, 666; The Carroll, 8 Wall. 302, 305; The Dexter, 23 Wall. 69, 76; The Bywell Castle, L. R. 4 Prob. Div. 219. The last case is a well-considered judgment by Lords Justices JAMES, BRETT, and COTTON, in the court of appeal, and the rule there formulated is that 'where one ship has, by wrong maneuvers, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been maneuvered with perfect skill and presence of mind.'

On the whole case we are of opinion that the decree of the circuit court must be affirmed, but without interest on the amount of that decree.


text: Talk:The Elizabeth Jones the Willis/Opinion of the Court

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Britton v. Thornton

George Shiras, Jr., for plaintiff in error.

C. E. Boyle, for defendant in error.

This was an action of ejectment brought on April 12, 1880, in the court of common pleas of the county of Fayette and state of Pennsylvania, by John Russell Thornton, a citizen of that state, against George A. Wilson, a citizen of Ohio, and William Britton and George E. Hogg, citizens of Pennsylvania, his tenants at will; and removed by Wilson into the circuit court of the United States for the Western district of Pennsylvania. At the trial in that court, before a jury, both parties claimed title under the will of Joseph Thornton, who died on October 25, 1839, seized of the land; the plaintiff as his surviving grandchild, and the defendants through Eliza Ann Thornton; and the following facts were admitted:

Joseph Thornton's will, which was duly admitted to probate, besides devising certain real and personal property to his widow for life, directing his executors to pay at their discretion to his son Nelson the sum of $365 a year during his life, and making other devises and bequests, contained the following:

'Item: I give and devise to my son William S. Thornton, during his natural life, all that body of land lying in Luzerne township, Fayette county, on which he now lives, consisting of four parcels adjoining each other, which I purchased of Samuel McMullin, Nicholas Miller, Eliza Coleman, and the heirs of Abraham Merritt, to hold the same without impeachment of waste.'

'Item: To my grandson, Joseph Thornton, son of my said son William, I give and devise all the lands in the preceding item devised to his father, to possess and enjoy the same from the death of his father, forever: provided, that [if] the said Joseph die in his minority, and without lawful issue then living, the said land shall revert and become a part of the residue and remainder of my estate hereinafter disposed of.'

'Item: To Eliza Ann Thornton, natural daughter of my said son Nelson, I give and devise all that plantation bought of Andrew Porter and John Davis, lying on the Monongahela river, in Luzerne township, adjoining Eliza Crawford, Thomas Neelan, Joseph Crawford, and Joseph Crawford, Jr., containing, as is supposed, two hundred and sixty acres, besides allowances, be the same more or less, she paying out of the rents to my executors the sum of three hundred and sixty-five [dollars] annually during the life of my said son Nelson: provided, that should the said Eliza Ann die in her minority, and without lawful issue then living, the land hereby devised shall revert and become a part of the residue of my estate hereinafter disposed of.'

'Item: All the rest and residue of my estate not heretofore disposed of I give, devise, and bequeath to my executors; and I do hereby authorize and empower them, or the survivor of them or their successors in the said office, to sell and convey any and all of my real estate not herein fully disposed of, if, in their discretion, they shall think it for the advantage or convenience of my estate, and whenever they may think proper so to do; and in the mean time to receive the rents, issues, and profits of the real estate, and the proceeds of the personal, and the dividends of all stocks, and apply them to the payment of the legacies of this my will.

'It is my will that the rents, issues, and profits of the real estate given to my executors, or the proceeds thereof, if sold, and the dividends of all my estate given to them, or the proceeds, if sold, and the proceeds of all other personal estate not required to pay the debts and legacies heretofore given, be vested by my executors in stocks or put out at interest and suffered to accumulate until my eldest grandchild then living shall attain the age of twenty-one years, or until the decease of my son William, whichever shall first occur, and then the whole to be equally divided among all my grandchildren then living, and the children of any who may be dead leaving issue, such issue to take by representation. The said Eliza Ann, natural daughter of my son Nelson, to be considered a grandchild, and to be entitled to share as such; and in making such division the amount of the devise made to Joseph, son of my son William, and to the said Eliza Ann, according to an estimate of their present value, to be made by three men appointed by my executors or by the orphans' court, to be charged to them or their children as part of their respective shares.'

William S. Thornton died in 1852, before any of the testator's children had attained the age of 21 years. Eliza Ann Thornton, on January 1, 1856, married John S. Krepps, and died on January 23, 1857, without lawful issue then living, and leaving her husband her heir at law: and he, on November 16, 1872, conveyed the land in dispute to Britton, who, on March 8, 1873, conveyed an undivided half of it to Hogg; and on February 8, 1878, Britton and Hogg conveyed the whole to the defendant Wilson. Krepps died on November 16, 1873. The plaintiff, John Russell Thornton, was the sole surviving grandchild and heir at law of the testator, all the other grandchildren having died without issue.

There was conflicting evidence of the date of Eliza Ann's birth; the evidence for the plaintiff tending to show that it was February 12, 1836, and the evidence for the defendants tending to show that it was February 12, 1835. The defendants requested the court to instruct the jury that, William S. Thornton having died in the life-time of Eliza Ann, she, as grandchild of the testator, and by virtue of the residuary clause in his will, became entitled in fee to the land in dispute, and that the defendants, having succeeded to her title, were entitled to a verdict. The court refused this instruction, and afterwards instructed the jury that the case turned upon their determination of the contested question of fact, whether she died before or after attaining the age of 21 years; and that if she died under that age, and the plaintiff was the only living descendant of the testator, he was entitled to recover. The defendants put in evidence a certified copy of a record of the circuit court at May term, 1878, of an action of ejectment between the same parties for the same land, in which a special verdict was returned finding the facts above admitted, and also that Eliza Ann at the time of her death was above the age of 21 years, and a judgment was rendered thereon, which was still in force and unreversed. The defendants requested that the jury might be instructed that that verdict and judgment were conclusive evidence that Eliza Ann was of age at the time of her death, and therefore the verdict in this case must be for the defendants. This instruction was refused.

The defendants then put in evidence a certified copy of a record of the court of common pleas of Fayette county at March term, 1858, of an action of ejectment for the same land, brought by Joseph Thornton's executors against Krepps, (under whom these defendants claimed title,) by which it appeared that a verdict was returned for Krepps under an instruction of the court that he was entitled to possession as the surviving husband of Eliza Ann, and judgment was rendered thereon, which was still in full force and unreversed. The defendants requested the court to instruct the jury that the verdicts and judgments in the two cases, records of which had been put in evidence by them, availed in law to conclude the controversy, and the verdict in this case should be for the defendants. The court refused this instruction, because by the record of 1858 it appeared that the only matter determined was that Krepps, as surviving husband of Eliza Ann, took a life estate as tenant by the curtesy, upon any construction of the will of Joseph Thornton, and whether she died under or above the age of 21 years.

The defendants excepted to the refusals to instruct and to the instructions given in this case, and, a verdict being returned for the plaintiff, sued out this writ of error.

[Argument of Counsel from page 531 intentionally omitted]

GRAY, J.

title: Britton v. Thornton


text: Talk:Britton v. Thornton

title: Talk:Britton v. Thornton


text:
Britton v. Thornton/Opinion of the Court

The question which lies at the foundation of this case is what estate Eliza Ann Thornton took in the land which Joseph Thornton specifically devised to her, 'provided that, should the said Eliza Ann die in her minority, and without lawful issue then living, the lands hereby devised shall revert and become part of the residue of my estate hereinafter disposed of.' By this specific devise, Eliza Ann Thornton took an estate in fee, defeasible by an executory devise over. That the estate devised to her, though without words of inheritance, was not an estate for life merely, but was an estate in fee, is not disputed, and is apparent from the description of the subject of the devise as 'that plantation bought of Andrew Porter and John Davis;' from the charge, imposed upon her personally, to pay an annuity out of the rents; and from the devise over in the contingency of her dying under age and without issue then living, thereby implying that her estate would not be terminated by her death after coming of age or leaving issue; as well as from the provision of the statute of Pennsylvania of April 8, 1883, that 'all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over, or by words of limitation or otherwise in the will, that the testator intended to devise a less estate.' 2 Jarm. Wills, (5th Amer. Ed.) 270, 271, 276, and note; Purd. Dig. (10th Ed.) 1475, § 10.

It is equally clear that, upon her death under age, and without issue then living, her estate in fee was defeated by the executory devise over. When, indeed, a devise is made to one person in fee, and, 'in case of his death,' to another in fee, the absurdity of speaking of the one event which is sure to occur to all living, as uncertain and contingent, has led the courts to interpret the devise over as referring only to death in the testator's life-time. 2 Jarm. Wills, c. 48; Briggs v. Shaw, 9 Allen, 516; Lord CAIRNS in O'Mahoney v. Burdett, L. R. 7 H. L. 388, 395. But when the death of the first taker is coupled with other circumstances which may or may not ever take place, as, for instance, death under age or without children, the devise over, unless controlled by other provisions of the will, takes effect, according to the ordinary and literal meaning of the words, upon death, under the circumstances indicated, at any time, whether before or after the death of the testator. O'Mahoney v. Burdett, above cited; 2 Jarm. Wills, c. 49.

We find nothing in this will to take the case out of the general rule, or to support the argument of the plaintiff in error that the testator intended that the devise over should not take effect if Eliza Ann survived him, or, at least, if she survived his son William. The phrase in the specific devise that, in the prescribed contingency, the land shall 'revert and become part of the residue,' is quite as consistent with the happening of the contingency after the estate has once vested in the devisee, as with its happening in the testator's life-time and before any estate has vested in her. The direction in the residuary clause that the residue shall be divided among all the testator's grandchildren when the oldest living grandchild shall attain the age of 21 years, or at the death of the testator's son William, whichever shall first occur, does not necessarily require a single and final division of the whole residue upon the death of William or the coming of age of a grandchild; for either of those events might happen before the termination of the widow's estate for life in that part of the property, real and personal, which, upon her death, must fall into the residue; and the coming of age of a grandchild might happen during the life of William, to whom also the testator had devised a life-estate in other land.

The provision that Eliza Ann, a natural daughter of the testator's son Nelson, shall be considered a grandchild and share as such in the residue, is coupled with a provision that the specific devise to her, according to an estimate to be made of its value, shall be charged to her as part of her share. The reasonable construction of this provision, as both parties agree, is that the estimate made for that purpose shall be of the value of the land devised to her, not of the value of her defeasible estate in the land. By estimating the land at its full value, she would take an equal share with each grandchild in the whole property, if her estate in the land became indefeasible; and she would lose no more than the land, if her estate was defeated by the contingency prescribed in the specific devise, of her dying in her minority and without issue then living. By the specific devise, it is only upon that contingency that the land devised to her is to 'revert and become a part of the residue;' and, upon a view of the whole will, we are satisfied that the circuit court rightly held that she took nothing in this land under the residuary devise, and that her title under the specific devise was defeated by her dying under age and leaving no issue surviving her. This conclusion accords with that of the supreme court of Pennsylvania in an action of ejectment for the same land, brought in 1874 by John Russell Thornton, the present plaintiff, against Britton, one of the grantors of the present defendant Wilson, in which that court, as appears by opinions not officially reported, but copies of which have been submitted to us, held, and upon petition for reargument reaffirmed, that, 'as to this particular tract of land, the estate of Eliza Ann became extinct, by the terms of the will itself, at the time of her death without issue.'

The other questions in the case depend upon the construction and effect of the statute of Pennsylvania of April 13, 1807, by which, 'when two verdicts shall, in any writ of ejectment between the same parties, be given in succession for the plaintiff or defendant, and judgment be rendered thereon, no new ejectment shall be brought; but when there may be verdict against verdict between the same parties, and judgment thereon, a third ejectment in such case, and judgment thereon, shall be final and conclusive, and bar the right.' Purd. Dig. 535, § 15. This statute, giving a conclusive effect to judgments in ejectment, which they did not have at common law, establishes a rule of property concerning the title in land within the state of Pennsylvania, and binds the courts of the United States as well as the courts of the state. Miles v. Caldwell, 2 Wall. 35; Blanchard v. Brown, 3 Wall. 245; Equator Co. v. Hall, 106 U.S. 86; S.C.. 1 SUP. CT. REP. 128. By the clear intention of this statute, as by its uniform interpretation by the supreme court of Pennsylvania, it requires two concurring verdicts and judgments thereon in a common-law ejectment between the same parties, upon the same title, to conclude the right. The words 'the same parties' of course include their heirs or assigns. Evans v. Patterson, 4 Wall. 224; Drexel v. Man, 2 Pa. St. 267. An award of referees has been made by the legislature, and a judgment, after full hearing upon general demurrer or case stated, has been deemed by the court equivalent to a verdict, (Ives v. Leet, 14 Serg. & R. 301; Mercer v. Watson, 1 Watts, 330;) but in Mercer v. Watson the court, after full consideration of the terms of the statute and of the reasons for its passage, concluded that 'the legislature did not intend to bar the party from bringing a new action of ejectment for the same land, upon the same title, until after two decisions should be had against him upon a full view and consideration of the whole of his case, and all the circumstances connected with it which he might think material, either by two judgments of a court of competent jurisdiction rendered upon general verdicts, special verdicts, cases stated, or in cases of demurrer to the pleadings or the evidence,' (1 Watts, 344;) and in Treaster v. Fleischer, 7 Watts & S. 137, it was adjudged that, although the statute did not expressly say so, the former verdicts and judgments must have been on the same title, because, in the words of Chief Justice GIBSON, 'it certainly could not have been intended that a title should be barred by adjudication without having been adjudicated.' 7 Watts & S. 138. To the same effect are Kinter v. Jenks, 43 Pa. St. 445; Chase v. Irvin, 87 Pa. St. 286; Barrows v. Kindred, 4 Wall. 399; and Merryman v. Bourne, 9 Wall. 592.

The special verdict in the former action in the circuit court had no greater effect than a general verdict, and could not, consistently with the statute, be held to be of itself conclusive upon the general question of title, or upon any question necessarily involved in the determination of the title. The verdict and judgment in the former action in the court of common pleas were incompetent evidence under the statute, because, as the bill of exceptions in the present case shows, they did not pass upon the question whether Eliza Ann had an indefeasible title in the land, but only upon the point that her husband had a title by the curtesy therein, whether her title was defeasible or indefeasible. In Pennsylvania, birth of issue is not necessary to create an estate by the curtesy. Purd. Dig. 806, § 4; Thornton v. Krepps, 37 Pa. St. 391.

Judgment affirmed.


text: Talk:Britton v. Thornton/Opinion of the Court


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Chew Heong v. United States

[Syllabus and statement of facts from 536-537 intentionally omitted]

H. S. Brown and ''Thos. D. Riordan'', for plaintiff in error.

Asst. Atty. Gen. Maury, for defendant in error.

HARLAN, J.

title: Chew Heong v. United States


text: Talk:Chew Heong v. United States

title: Talk:Chew Heong v. United States


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Chew Heong v. United States/Opinion of the Court

This case comes before us upon a certificate of division in opinion upon questions that require a construction of the act of congress, approved May 6, 1882, c. 126, (22 St. 58,) entitled 'An act to execute certain treaty stipulations relating to Chinese,' commonly known as the Chinese restriction act,-and of the act amendatory thereof, approved July 5, 1884, c. 220, (23 St. 115.) The facts deemed important in the consideration of these questions, and as to which there is no dispute, are these: The plaintiff in error, Chew Heong, is a subject of the emperor of China, and a Chinese laborer. He resided in this country on the seventeenth of November, 1880, on which day commissioners plenipotentiary, upon the part of the United States and China, concluded, at Peking, a treaty containing articles in modification of former treaties between the same countries. 22 St. 826. He departed from the United States for Honolulu, in the Hawaiian kingdom, on the eighteenth of June, 1881, and remained there until September 15, 1884, when he took passage on an American vessel bound for the port of San Francisco. Arriving at that port on September 22, 1884, his request to be permitted to leave the vessel was denied, and he was detained on board, under the claim that the act of congress of May 6, 1882, as amended, forbade him to land within the United States. He was thereupon brought before the circuit court of the United States, for the district of California, upon a writ of habeas corpus. The United States attorney for that district, who was permitted to intervene in behalf of the government, objected to his discharge, and asked that such orders be made as would effect his removal from the country. It was held that he was not entitled to re-enter or to remain in the United States, and must be deported to the place whence he came, to-wit, Honolulu.

The questions certified involved the inquiry whether section 4 of the act approved May 6, 1882, as amended by that of July 5, 1884, prescribing the certificate which shall be produced by a Chinese laborer as the 'only evidence permissible to establish his right of re-entry' into the United States, is applicable to Chinese laborers who, residing in this country on November 17, 1880, departed by sea prior to May 6, 1882, and remained out of the United States till after July 5, 1884. In behalf of the plaintiff in error it is contended that he left for Honolulu with the right secured by treaty to re-enter the United States at his pleasure, subject only to such regulations and restrictions as did not substantially affect his enjoyment of that right; that this privilege does not depend upon his having procured, before he left the United States in 1881, a collector's certificate for which the law, at that time, made no provision; and, consequently, that his right to return, if questioned, must be determined by such evidence as is competent under the general principles of law. The contention on behalf of the government is that his admission into this country, upon evidence other than the certificate prescribed by the act of 1884, would be inconsistent with the intention of congress as manifested by the language of both the original and amendatory acts.

If, as claimed by plaintiff in error, the treaty of 1880, fairly interpreted, secured to him, at the time of his departure for Honolulu, the right to go from and return to the United States at pleasure, without being subjected to regulations or conditions affecting the substance of that right, the court should be slow to assume that congress intended to violate the stipulations of a treaty, so recently made with the government of another country. 'There would no longer be any security,' says Vattel, 'no longer any commerce between mankind, if they did not think themselves obliged to keep faith with each other, and to perform their promises.' Book 2, c. 12. And as sovereign nations, acknowledging no superior, cannot be compelled to accept any interpretation, however just and reasonable, 'the faith of treaties constitutes in this respect all the security of contracting powers.' Book 2, c. 17. 'Treaties of every kind,' says Kent, 'are to receive a fair and liberal interpretation, according to the intention of the contracting parties, and are to be kept in the most scrupulous good faith.' 1 Kent, Comm. 174. A treaty that operates of itself without the aid of legislation is equivalent to an act of congress, and while in force constitutes a part of the supreme law of the land. Foster v. Neilson, 2 Pet. 314. Aside from the duty imposed by the constitution to respect treaty stipulations when they become the subject of judicial proceedings, the court cannot be unmindful of the fact that the honor of the government and people of the United States is involved in every inquiry whether rights secured by such stipulations shall be recognized and protected. And it would be wanting in proper respect for the intelligence and patriotism of a co-ordinate department of the government were it to doubt, for a moment, that these considerations were present in the minds of its members when the legislation in question was enacted.

With these observations, we proceed to consider whether the right claimed by the plaintiff is secured by treaty, and, if so, whether its recognition is inconsistent with the before-mentioned acts of congress.

Before referring to the treaty of 1880, it will be well to ascertain from those previously concluded between the United States and China, what were the relations of trade and commerce existing between their respective peoples. By the treaty of peace, amity, and commerce, concluded in 1858, citizens of the United States in China peaceably attending to their affairs, were placed on a common footing of amity and good-will with subjects of the latter country, entitled to receive and enjoy for themselves, and everything pertaining to them, the protection of the local authorities of government, who were required to defend them from insult or injury of any sort. Those residing or sojourning at any of the ports open to foreign commerce were permitted to rent houses and places of business, or hire sites on which they could themselves build houses, hospitals, churches, and cemeteries; to frequent certain designated ports and cities, and any other port or place thereafter, by treaty with other powers or with the United States, opened to commerce; to reside with their families and trade at such places, and to proceed at pleasure with their vessels and merchandise to and from said ports, or any of them; at each of said ports open to commerce, to import from abroad, and to sell, purchase, and export all merchandise of which the importation or exportation was not prohibited by the laws of China, subject to no higher duties than those paid by the most favored nation. By that treaty, also, any right, privilege, or favor, connected either with navigation, commerce, political, or other intercourse thereafter granted by China to the citizens of any nation, was at once to freely inure to the benefit of the United States, its public officers, merchants, and citizens. 12 St. 1025 et seq.

In the treaty concluded July 28, 1868, the governments of the United States and China recognized 'the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of free migration and emigration of their citizens and subjects, respectively, from one country to the other, for purposes of curiosity, of trade, or as permanent residents.' They therefore joined in reprobating any other than an entirely voluntary emigration for those purposes. By that treaty it was also provided that citizens of the United States visiting or residing in China, and Chinese subjects visiting or residing in the United States, should enjoy the same privileges, immunities, or exemptions in respect to travel or residence, and in respect of public educational institutions, as should be accorded to the most favored nation in the country in which they should be respectively visiting or residing. 16 St. 739.

This brings us to the treaty concluded November 17, 1880, which refers to the prior treaties of 1858 and 1868. To that treaty the senate gave its assent on May 5, 1881, and it was ratified by the president on the ninth of May, 1881. Its first three articles are as follows:

'Article 1. Whenever, in the opinion of the government of the United States, the coming of Chinese laborers to the United States, or their residence therein, affects or threatens to affect the interests of that country, or to endanger the good order of the said country, or of any locality within the territory thereof, the government of China agrees that the government of the United States may regulate, limit, or suspend such coming or residence, but may not absolutely prohibit it. The limitation or suspension shall be reasonable, and shall apply only to Chinese who may go to the United States as laborers, other classes not being included in the limitations. Legislation taken in regard to Chinese laborers will be of such a character only as is necessary to enforce the regulation, limitation, or suspension of immigration, and immigrants shall not be subject to personal maltreatment or abuse.

'Art. 2. Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants, and Chinese laborers who are now in the United States, shall be allowed to go and come of their own free will and accord, and shall be accorded all the rights, privileges, immunities, and exemptions which are accorded to the citizens and subjects of the most favored nation.

'Art. 3. If chinese laborers, or Chinese of any other class, now either permanently or temporarily residing in the territory of the United States, meet with ill treatment at the hands of any other persons, the government of the United States will exert all its power to devise measures for their protection, and to secure to them the same rights, privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation, and to which they are entitled by treaty.' 22 St. 826.

It appears to the court that there can be no serious difficulty in ascertaining the object of these modifications of prior treaties. By the treaty of 1868 subjects of China were entitled, without restriction, to come to this country for purposes of curiosity, or trade, or as permanent residents; but, in deference to the opinion of our government that the presence here of Chinese laborers might be injurious to the public interests, or might endanger good order in our land, China agreed in the treaty of 1880 to such modifications of previous treaties as would enable the United States to regulate, limit, or suspend their coming or residence, without absolutely prohibiting it; such limitation or suspension to be reasonable in its character. As to certain classes of Chinese, it was distinctly provided that they should be permitted to go and come of their own free will, and be accorded all the rights, privileges, immunities, and exemptions that are granted to citizens and subjects of the most favored nation. Those classes were: (1) Chinese subjects, whether proceeding to the United States as teachers, students, merchants, or from curiosity, together with their body and household servants; (2) Chinese laborers who were in this country Chinese laborers who were in exercise, by these particular classes, of the rights of free ingress and egress, no limitation in respect of time was imposed by the treaty. In other words, the enjoyment of the right to go and come was not made to depend upon how often they went out of the country, nor how long they remained away before returning. That the plaintiff in error belongs to one of these classes cannot be successfully disputed, since it is certified to us, and the fact must be so taken, that he is a Chinese laborer who was in this country on the seventeenth day of November, 1880. He was, therefore, entitled, by the provisions of the treaty, to return to, and remain in, the United States, unless, after his departure for Honolulu, congress withdrew the privilege which the treaty secured, and thereby precluded any recognition of it by the judiciary of this country. Whether such has been the effect of its legislation is the subject of our next inquiry.

The act of 1882, as amended, being too long for insertion here, has been printed in the margin, and in such way as to indicate the additions and alterations made by the act of 1884. The words in italics were introduced by the latter act, while those in brackets were in the original, and were stricken out by the amendatory act. This legislation was enacted in execution of thetreaty, and because, in the opinion of the government of the United States, the coming of Chinese laborers endangered the good order of certain localities in this country. The first section, as amended, suspends their coming for 10 years, and declares it to be unlawful for any Chinese laborer to come from any foreign port or place, or, having so come, to remain within the United States. The second section, as amended, makes it a misdemeanor, punishable by fine, or by fine and imprisonment, for the master of any vessel to knowingly bring within the United States on such vessel, and land, or attempt to land, or permit to be landed, any such laborer from any foreign port or place. If these sections constituted the entire legislation in referene to the coming to this country of Chinese laborers, the court, under the established rules for the interpretation of statutes, would hold that they did not apply to Chinese laborers who, by their residence in the United States at the date of the last treaty, had acquired the right to go and come of their own free will, and to enjoy such privileges, immunities, and exemptions as were accorded here to citizens and subjects of the most favored nation. For since the purpose avowed in the act was to faithfully execute the treaty, any interpretation of its provisions would be rejected which imputes to congress an intention to disregard the plighted faith of the government, and, consequently, the court ought, if possible, to adopt that construction which recognized and saved rights secured by the treaty. The utmost that could be said, in the case supposed, would be that there was an apparent conflict between the mere words of the statute and the treaty, and that by implication the latter, so far as the people and the courts of this country were concerned, was abrogated in respect of that class of Chinese laborers to whom was secured the right to go and come at pleasure. But even in the case of statutes, whose repeal or modification involves no question of good faith with the government or people of other countries, the rule is well settled that repeals by implication are not favored, and are never admitted where the former can stand with the new act. Ex parte Yerger, 8 Wall. 105. In Wood v. U.S. 16 Pet. 362, Mr. Justice STORY, speaking for the court upon a question of the repeal of a statute by implication, said: 'That it has not been expressly or by direct terms repealed is admitted, and the question resolves itself into the narrow inquiry whether it has been repealed by necessary implication. We say, by necessary implication, for it is not sufficient to establish that subsequent laws cover some, or even all, of the cases provided for by it, for they may be merely affirmative, or cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of the new laws and those of the old, and even then the old law is repealed by implication only pro tanto, to the extent of the repugnancy.' In State v. Stoll, 17 Wall. 430, the language of the court was that 'it must appear that the latter provision is certainly and clearly in hostility to the former. If by any reasonable construction the two statutes can stand together, they must so stand. If harmony is impossible, and only in that event, the former law is repealed in part or wholly, as the case may be.' See, also, Ex parte Crow Dog, 109 U.S. 570; S.C.. 3 SUP. CT. REP. 396; Arthur v. Homer, 96 U.S. 140; Hartford v. U.S. 8 Cranch, 109.

When the act of 1882 was passed, congress was aware of the obligation this government had recently assumed, by solemn treaty, to accord to a certain class of Chinese laborers the privilege of going from and coming to this country at their pleasure. Did it intend, within less than a year after the ratification of the treaty, and without so declaring in unmistakable terms, to withdraw that privilege by the general words of the first and second sections of that act? Did it intend to do what would be inconsistent with the inviolable fidelity with which, according to the established rules of international law, the stipulations of treaties should be observed? These questions must receive a negative answer. The presumption must be indulged that the broad language of these sections was intended to apply to those Chinese laborers whose coming to this country might, consistently with the treaty, be reasonably regulated, limited, or suspended, and not to those who, by the express words of the same treaty, were entitled to go and come of their own free will, and enjoy such privileges and immunities as were accorded to the citizens and subjects of the most favored nation. These views find strong support in the third and fourth sections of the act.

The third section, as it originally stood, declared 'that the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, eighteen hundred and eighty, or who shall have come into the same before the expiration of ninety days next after the passage of this act, and who shall produce to such master before going on board such vessel, and shall produce to the collector of the port in the United States at which such vessel shall arrive, the evidence hereinafter in this act required, of his being one of the laborers in this section mentioned.' It is contended that provision was made in this clause only for Chinese laborers, of the two classes described, who should produce the certificate of identification required by the fourth section of the act; leaving those who could not produce it to rest under the prohibitions of the preceding sections. But thatconstruction is wholly inadmissible; for, apart from a violation of the treaty of 1880, which is involved in such a construction, it is inconceivable that congress would have announced its purpose not to include in the suspension for 10 years Chinese laborers who might come into the United States within 90 days immediately after the passage of the act of 1882, and, in the same act, have prohibited their entering this country unless they should produce a certificate which could have been furnished only to those who were here at the passage of that act, and left after it took effect.

But all basis for such a construction is removed by the amendment made in the third section by the act of 1884. The above clause as amended reads thus: 'That the two foregoing sections shall not apply to Chinese laborers who were in the United States on the seventeenth day of November, eighteen hundred and eighty, or who shall have come into the same before the expiration of ninety days after the passage of the act to which this act is amendatory, nor shall said sections apply to Chinese laborers who shall produce to such master, etc., the evidence hereinafter in this act required, * *  * ' etc. The striking out of the word 'and,' in the third section of the original act, and inserting the words 'nor shall said sections apply to Chinese laborers,' are very significant. As amended, the third section wholly precludes the idea that the right to return to this country of those who were here at the date of the treaty, but were absent when congress legislated upon the subject of Chinese immigration, was to be incumbered with the condition, impossible to be performed, of producing a collector's certificate; for that section, as it stands, declares, without qualification, that the first and second sections shall not apply to those who were here at the date of the treaty. If a Chinese laborer who was here at the date of the treaty, and also when the act of 1882 was passed, desired again to leave the country, his right to return was made to depend upon his producing the certificate required by that act. And this was true, also, of a Chinese laborer, not here at the date of the treaty, who, having come within 90 days next after the original act was passed, desired to depart from the United States and return at some subsequent period.

Coming to the fourth section of the act, we find evidence of the most cogent nature of the intention of congress not to disregard that treaty. As it stood in the act of 1882, it was in these words: 'That for the purpose of properly identifying Chinese laborers who were in the United States on the seventeenth lay of November, eighteen hundred and eighty, or who shall have come into the same before the expiration of ninety days next after the passage of this act, and in order to furnish them with the proper evidence of their right to go from and come to the United States of their free will and accord, as provided by the treaty between the United States and China, dated November seventeenth, eighteen hundred and eighty, the collector of customs of the district from which any such Chinese laborer shall depart from the United States shall, in person or by deputy, go on board each vessel having on board any such Chinese laborer, and cleared, or about to sail, from his district for a foreign port, and on such vessel make a list of all such Chinese laborers, which shall be entered in registry books to be kept for that purpose, in which shall be stated the name, age, occupation, last place of residence, physical marks or peculiarities, and all facts necessary for the identification of each of such Chinese laborers, which books shall be safely kept in the custom-house; and every such Chinese laborer so departing from the United States shall be entitled to, and shall receive free of any charge or cost, upon application therefor, from the collector or his deputy, at the time such list is taken, a certificate signed by the collector or his deputy, and attested by his seal of office, in such form as the secretary of the treasury shall prescribe, which certificate shall contain a statement of the name, age, occupation, last place of residence, personal description, and facts of identification of the Chinese laborer to whom the certificate is issued, corresponding with the said list and registry in all particulars. In case any Chinese laborer, after having received such certificate, shall leave such vessel before her departure, he shall deliver his certificate to the master of the vessel, and if such Chinese laborer shall fail to return to such vessel before her departure from port, the certificate shall be delivered by the master to the collector of customs for cancellation. The certificate herein provided for shall entitle the Chinese laborer to whom the same is issued to return to and re-enter the United States upon producing and delivering the same to the collector of customs of the district at which such Chinese laborer shall seek to re-enter; and upon delivery of such certificate by such Chinese laborer to the collector of customs at the time of re-entry in the United States, said collector shall cause the same to be filed in the custom-house and duly canceled.'

This section was amended by the act of 1884 so as to require that the list made by the collector or his deputy, and entered in the registry books kept for that purpose, as well as the certificate issued by the collector to any Chinese laborer about to depart by vessel, should show-what the original act did not require-his individual, family, and tribal name in full, and when and where his occupation was followed. It was further amended so as to provide, in terms, that the certificate furnished to such laborer by the collector 'shall be the only evidence permissible to establish his right of re-entry.' In that section, as in the third, a certain class of Chinese laborers is described as those who were here on the seventeenth of November, 1880. Why was that date fixed, unless for the purpose of giving effect to the article of the treaty, which secured to Chinese laborers, who were in this country on that particular day, the same freedom, in respect of travel and intercourse, that was accorded to the citizens and subjects of the most favored nation? Congress certainly did not overlook, much less intend to ignore, the stipulations of the treaty, or question their scope or effect; for the fourth section, referring to Chinese laborers who were here on the seventeenth day of November, 1880, expressly recognizes the fact that the treaty of that date gave them 'the right to go from and come to the United States.

Now, the argument in behalf of the government is that, since congress made provision for certificates to be furnished to those who were entitled to demand them, it did not intend to recognize the right to return of any Chinese laborer who, being in the United States at the date of the treaty, was not here when the act of 1882 was passed. Assuming, always, that there was a purpose, in good faith, to abide by the stipulations of the treaty, this argument necessarily implies that, in the judgment of congress, the treaty did not secure to any Chinese laborer the right of going and coming of his own free will, except to those in this country at the date of the treaty, who remained here continuously until the original act was passed, or who had returned by the latter date; in other words, that a Chinese laborer who was here on the seventeenth of November, 1880, lost the right to return, so far as that right was secured by treaty, if he left at any time-no matter for what purpose or for how brief a period-prior to, and had not returned before, the passage of the act of 1882.

But the treaty is not subject to any such interpretation. To give it that interpretation would be, in effect, to interpolate in its second article, after the words 'Chinese laborers who are now in the United States,' the words 'and who shall continue to reside therein.' The plaintiff in error left this country after the ratification of the treaty, having the right, secured by its articles, to return, of his own free will, without being subjected to burdens or regulations that materially interfere with its enjoyment. The legislative enactments in question should receive such a construction, if possible, as will save that right, while giving full effect to the intention of congress. That result can be attained consistently with recognized rules of interpretation. Lex non intendit aliquid impossibile is a familiar maxim of the law. The supposition should not be indulged that congress, while professing to faithfully execute treaty stipulations, and recognizing the fact that they secured to a certain class the 'right to go from and come to the United States,' intended to make its protection depend upon the performance of conditions which it was physically impossible to perform. 'Besides,' said this court in U.S. v. Kirby, 7 Wall. 486, 'general terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language which would avoid results of this character. The reason of the law in such cases should prevail over its letter.' See, also, Carlisle v. U.S. 16 Wall. 153. So, in Perry v. Skinner, 2 Mees. & W. 471, it was said: 'The rule by which we are to be guided is to look at the precise words, and to construe them in their ordinary sense, unless it would lead to absurdity or manifest injustice; and if it should, so to vary them as to avoid that which certainly could not have been the intention of the legislature. We must put a reasonable construction upon their words.' ''Lake Shore Ry. Co. v. Roach, 80 N. Y. 339; Com. v. Kimball'', 24 Pick. 370; Campbell's Case, 2 Bland, 209; Sedg. St. & Const. Law, 191. What injustice could be more marked than, by legislative enactment, to recognize the existence of a right by treaty to come within the limits of the United States, and, at the same time, to prescribe, as the only evidence permissible to establish it, the possession of a collector's certificate that could not possibly have been obtained by the person to whom the right belongs? Or, to prevent the re-entry of a person into the United States upon the ground that he did not, upon his arrival from a foreign port, produce a certain certificate, under the hand and seal of a collector, and upon forms prescribed by the secretary of the treasury, which neither that nor any other officer was authorized or permitted to give prior to the departure of such person from this country? Or what incongruity is more evident than to impose upon a collector the duty of going on board of a vessel about to sail from his district for a foreign port, and making and recording a list of its passengers of a particular race, showing their individual, family, and tribal names in full, their age, occupation, last place of residence, physical marks and peculiarities, when the collector? These questions suggest law passed which imposed that duty on the collector? These questions suggest the consequences that must result if it is held that congress intended to abrogate the treaty with China, by imposing conditions upon the enjoyment of rights secured by it which are impossible of performance.

But there is another view which tends to show the unsoundness of the construction upon which the government insists. It is this: If Chinese laborers who were here at the date of the treaty, or who came within 90 days next after the passage of the act of 1882, being out of the country when the act of 1884 was passed, can re-enter only upon producing the certificate required by the latter act, then congress must have intended to exclude even those who were in this country at the time the act of 1882 was passed, and who, upon going away, received the certificate mentioned in it; for the certificate prescribed by the act of 1882 is not the certificate prescribed by that of 1884; they differ in several particulars; and yet, if the act of 1884 is to be taken literally, all Chinese laborers are excluded who do not produce the very certificate mentioned in it. The original act expressly provides that the certificate prescribed therein 'shall entitle the Chinese laborer to whom the same is issued to return to and re-enter the United States, upon producing and delivering the same' to the collector of the district at which he seeks to re-enter. Congress did not intend, by indirection, to withdraw from those who received and relied upon the certificate mentioned in that act the privilege of returning, simply because they did not (and could not) produce the certificate required by the amendatory act, passed during their rightful absence. Those who left the country with certificates under the original act were entitled to return upon the production of those certificates. If, then, the act of 1884 did not defeat the rights given by that of 1882, it follows that there are Chinese laborers who, having been in the United States prior to July 5, 1884, may re-enter without producing the certificate required by the act of the latter date; and so the argument that congress intended to exclude from the country Chinese laborers of every class who did not produce the certificate prescribed by the act of 1884, fails in respects essential to sustain the judgment below. A construction of the original and amendatory acts which saves the rights of the plaintiff in error rests upon precisely the same grounds as does a construction of the amendatory act which saves the rights of those obtaining certificates under the original act, who did not seek to re-enter the country until after the act of 1884 was passed.

There are other sections of the act of congress upon which, it was suggested in argument, the judgment below could be sustained. Some stress is laid upon the fifth section, which provides that 'any Chinese laborer mentioned in section four of this act, being in the United States and desiring to depart from the United States by land, shall have the right to demand and receive, free of charge or cost, a certificate of identification similar to that provided for in section four of this act to be issued to such Chinese laborers as may desire to leave the United States by water; and it is hereby made the duty of the collector of customs of the district next adjoining the foreign country to which said Chinese laborer desires to go, to issue such certificate, free of charge or cost, upon application by such Chinese laborer, and to enter the same upon registry books to be kept by him for the purpose, as provided for in section four of this act.' The argument, based upon this section, is that the phrase 'being in the United States' indicates a purpose to exclude all Chinese laborers not in the United States at the date of the original act In our judgment, that phrase throws light upon the true meaning of the fourth section, in this: that, as the fifth section prescribes a certificate for those 'being in the United States' who desired to depart by land, so the fourth section prescribed a certificate for those being in the United States who desired to depart by water. In each case the provision is for those who are rightfully here, and therefore have an opportunity to demand and receive the required certificate, and not for those who are protected by the treaty, but who, being absent from the country, when the law was enacted making provision for a collector's certificate, could not demand and receive it. Neither section purports to defeat previously-existing rights by imposing conditions upon their enjoyment which cannot be satisfied.

It is also said, in support of the judgment, that the sixth section is significant, in that it prescribes the mode for the coming to this country of Chinese persons, 'other than a laborer who may be entitled by said treaty and this act to come within the United States,' but fails to provide the means for the return and identification of Chinese laborers who were entitled by the treaty to return, but who were out of the country when the act of congress was passed. But this argument, like the one just alluded to, only proves that congress, while making provision for the coming of persons who were entitled to come, other than laborers, omitted to make special provision in reference to the latter, and, consequently, left them to stand upon their rights as secured by the treaty, and, if their right to enter the United States was questioned, to prove in some way, consistent with the general principles of law, that they belonged to the class entitled to go and come. Some reliance was also placed upon the implication arising from that clause of the twelfth section which declares that 'no Chinese person shall be permitted to enter the United States by land, without producing to the proper officer of customs the certificate in this act required of Chinese persons seeking to land from a vessel.' We do not perceive that any argument based upon these words meets the view that the act of congress, in respect of Chinese laborers entitled to go and come, is inapplicable to those who were here at the date of the treaty, but, by reason of absence when the act of congress took effect, could not obtain the required certificate. If, however, the twelfth section should be held to forbid the entrance of Chinese persons of every class into this country, by land, except upon the certificate required by the fourth section, it would not follow that a Chinese laborer entitled by the treaty to go and come at pleasure, and who was out of the country when the act of congress was passed, could not re-enter byvessel, upon satisfactory evidence of his being here at the date of the treaty.

The entire argument in support of the judgment below proceeds upon the erroneous assumption that congress intended to exclude all Chinese laborers of every class who were not in the United States at the time of the passage of the act of 1882, including those who, like the plaintiff in error, were here when the last treaty was concluded, but were absent at the date of the passage of that act. We have stated the main reasons which, in our opinion, forbid that interpretation of the act of congress. To these may be added the further one, that the courts uniformly refuse to give to statutes a retrospective operation, whereby rights previously vested are injuriously affected, unless compelled to do so by language so clear and positive as to leave no room to doubt that such was the intention of the legislature. In U.S. v. Heth, 3 Cranch, 413, this court said that 'words in a statute ought not to have a retrospective operation unless they are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied;' and such is the settled doctrine of this court. Murray v. Gibson, 15 How. 423; McEwen v. Den, 24 How. 244; Harvey v. Tyler, 2 Wall. 347; Sohn v. Waterson, 17 Wall. 599; ''Twenty per cent. Cases'', 20 Wall. 187. So far from the court being compelled, by the language of the act of congress, to give it a retrospective operation, the plain, natural, and obvious meaning of the words-interpreted with reference to the general scope and the declared purpose of the statute-utterly forbids the conclusion that there was any intention to impair or destroy rights previously granted. The Chinese laborer who, under the act of 1882, was entitled to return and re-enter the United States upon producing the certificate therein prescribed, and the Chinese laborer who, after the act of 1884 was passed, could re-enter the country only upon producing the certificate required by the latter act, is described as one 'to whom the same is issued.'

It would be a perversion of the language used to hold that such regulations apply to Chinese laborers who had left the country with the privilege, secured by treaty, of returning, but who, by reason of their absence when those legislative enactments took effect, could not obtain the required certificates. Statutory provisions which declare that a certificate shall be evidence, or the only evidence, of the right of the person 'to whom it is issued' to re-enter the United States, cannot, upon any sound rule of interpretation, be held to apply to one to whom it could not have been issued. A Chinese laborer, to whom a certificate was issued under the 538 only upon producing that certificate; one, to whom a certificate was issued under the act of 1884, is entitled to re-enter only upon producing such certificate; while the plaintiff in error, having left before any certificate was permitted to be issued, cannot be required to produce one before re-entering, because, having resided here on the seventeenth day of November, 1880, he was clearly entitled, under the express words of the treaty, to go from and return to the United States of his own free will,-a privilege that would be destroyed if its enjoyment depended upon a condition impossible to be performed. The recognition of that privilege is entirely consistent with existing legislation; for, by construing the original and amendatory acts, so far as they require the production of a collector's certificate by Chinese laborers who were in the United States on the seventeenth of November, 1880, as applicable only to those of that class who were here at the dates when those acts, respectively, took effect, no previously acquired rights are violated, and full effect is given to the expressed intention of congress to faithfully meet our treaty obligations. Thus, the legislation of congress and the stipulations of the treaty may stand together.

In accordance with these views, it is adjudged that the plaintiff in error is entitled to enter and remain in the United States. The first of the certified questions is, therefore, answered in the negative, and the second and third in the affirmative. The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.


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


text:
Head Money Cases (112 U.S. 580)

District of New York.]

CUNARD STEAM-SHIP CO. (Limited)

v. ROBERTSON, Collector, etc.

SAME

v.

SAME.

[In Error to the Circuit Court of the United States for the  Southern District of New York.]

December 8, 1884.

[Syllabus and statement of facts from pages 580-582 intentionally omitted]

''Geo. De Forest Lord'', for Cunard Steam-ship Co.

[Argument of Counsel from pages 582-584 intentionally omitted]

Philip J. Joachimsen and Edwards Pierrepont, for Edye and others.

[Argument of Counsel from pages 584-586 intentionally omitted]

''Sol. Gen. Phillips'', for Robertson, Collector, etc.

MILLER, J.

title: Head Money Cases (112 U.S. 580)


text: Talk:Head Money Cases (112 U.S. 580)

title: Talk:Head Money Cases (112 U.S. 580)