text:
Murray v. Lardner/Opinion of the Court

The question presented by the instruction excepted to is not a new one, either in commercial jurisprudence or in this court.

The general rule of the common law is, that, except by a sale in market overt, no one can give a better title to personal property than he has himself. The exemption from this principle of securities, transferable by delivery, was established at an early period. It is founded upon principles of commercial policy, and is now as firmly fixed as the rule to which it is an exception. It was applied by Lord Holt to a bank bill in Anon, 1st Salkeld, 126. This is the earliest reported case upon the subject. He held that the action must fail 'by reason of the course of trade, which creates a property in the assignee or bearer.'

The leading case upon the subject is Miller v. Race, decided by Lord Mansfield. The question, in that case, also related to a bank note. The right of the bon a fide holder for a valuable consideration was held to be paramount against the loser. He put the decision upon the grounds of the course of business, the interests of trade, and especially that bank notes pass from hand to hand, in all respects, like coin. The same principle was applied by that distinguished judge in Grant v. Vaughan, to a merchant's draft upon his banker. He there said: In 'Miller v. Race, 31st Geo. II, B. R., the holder of a bank note recovered against the cashier of a bank, though the mail had been robbed of it, and payment had been stopped, it appearing that he came by it fairly and bon a fide, and upon a valuable consideration, and there is no distinction between a bank note and such a note as this is.' In Peacock v. Rhodes, he said: 'The law is settled that a holder coming fairly by a bill or note has nothing to do with the transaction between the original parties, unless, perhaps, in the single case, which is a hard one, but has been determined, of a note for money won at play.' The question has since been considered no longer an open one in the English law, as to any class of securities within the category mentioned.

What state of facts should be deemed inconsistent with the good faith required was not settled by the earlier cases. In Lawson v. Weston, Lord Kenyon said: 'If there was any fraud in the transaction, or if a bon a fide consideration had not been paid for the bill by the plaintiffs, to be sure they could not recover; but to adopt the principle of the defence to the full extent stated, would be at once to paralyze the circulation of all the paper in the country, and with it all its commerce. The circumstance of the bill having been lost might have been material, if they could bring knowledge of that fact home to the plaintiffs. The plaintiffs might or might not have seen the advertisement; and it would be going a great length to say that a banker was bound to make inquiry concerning every bill brought to him to discount; it would apply as well to a bill for 10 as for 10, 000.'

In the later case of Gill v. Cubitt, Abbott, Chief Justice, upon the trial, instructed the jury, 'That there were two questions for their consideration: first, whether the plaintiff had given value for the bill, of which there could be no doubt; and, secondly, whether he took it under circumstances which ought to have excited the suspicion of a prudent and careful man. If they thought he had taken the bill under such circumstances, then, notwithstanding he had given the full value for it, they ought to find a verdict for the defendant.' The jury found for the defendant, and a rule nisi for a new trial was granted. The question presented was fully argued. The instruction given was unanimously approved by the court. The rule was discharged, and judgment was entered upon the verdict. This case clearly overruled the prior case of Lawson v. Weston, and it controlled a large series of later cases.

In Crook v. Jadis, the action was brought by the indorsee of a bill against the drawer. It was held that it was 'no defence that the plaintiff took the bill under circumstances which ought to have excited the suspicion of a prudent man that it had not been fairly obtained; the defendant must show that the plaintiff was guilty of gross negligence.'

In Backhouse v. Harrison, the same doctrine was affirmed, and Gill v. Cubitt was earnestly assailed by one of the judges. Patterson, Justice, said: 'I have no hesitation in saying that the doctrine laid down in Gill v. Cubitt, and acted upon in other cases, that a party who takes a bill under circumstances which ought to have excited the suspicion of a prudent man cannot recover, has gone too far, and ought to be restricted. I can perfectly understand that a party who takes a bill fraudulently, or under such circumstances that he must know that the person offering it to him has no right to it, will acquire no title; but I never could understand that a party who takes a bill bon a fide, but under the circumstances mentioned in Gill v. Cubitt, does not acquire a property in it. I think the fact found by the jury here that the plaintiff took the bills bon a fide, but under circumstances that a reasonably cautious man would not have taken them, was no defence.'

In Goodman v. Harvey, the subject again came under consideration. Lord Denman, speaking for the court, held this language: 'I believe we are all of opinion that gross negligence only would not be a sufficient answer where the party has given a consideration for the bill. Gross negligence may be evidence of mala fides, but is not the same thing. We have shaken off the last remnant of the contrary doctrine. Where the bill has passed to the plaintiff, without any proof of bad faith in him, there is no objection to his title.'

A final blow was thus given to the doctrine of Gill v. Cubitt. The rule established in this case has ever since obtained in the English courts, and may now be considered as fundamental in the commercial jurisprudence of that country.

In this country there has been the same contrariety of decisions as in the English courts, but there is a large and constantly increasing preponderance on the side of the rule laid down in Goodman v. Harvey.

The question first came before this court in Swift v. Tyson. 17 Goodman v. Harvey, and the class of cases to which it belongs were followed. The court assumed the proposition which they maintain, to be too clear to require argument or authority to support it. The ruling in that case was followed in Goodman v. Simonds, and again in the Bank of Pittsburg v. Neal. the subject was elaborately and exhaustively examined both upon principle and authority. That case affirmed the following propositions:

The possession of such paper carries the title with it to the holder: 'The possession and title are one and inseparable.'

The party who takes it before due for a valuable consideration, without knowledge of any defect of title, and in good faith, holds it by a title valid against all the world.

Suspicion of defect of title or the knowledge or circumstances which would excite such suspicion in the mind of a prudent man, or gross negligence on the part of the taker, at the time of the transfer, will not defeat his title. That result can be produced only by bad faith on his part.

The burden of proof lies on the person who assails the right claimed by the party in possession.

Such is the settled law of this court, and we feel no disposition to depart from it. The rule may perhaps be said to resolve itself into a question of honesty or dishonesty, for guilty knowledge and wilful ignorance alike involve the result of bad faith. They are the same in effect. Where there is no fraud there can be no question. The circumstances mentioned, and others of a kindred character, while inconclusive in themselves, are admissible in evidence, and fraud established, whether by direct or circumstantial evidence, is fatal to the title of the holder.

The rule laid down in the class of cases of which Gill v. Cubitt is the antetype, is hard to comprehend and difficult to apply. One innocent holder may be more or less suspicious under similar circumstances at one time than at another, and the same remark applies to prudent men. One prudent man may also suspect where another would not, and the standard of the jury may be higher or lower than that of other men equally prudent in the management of their affairs. The rule established by the other line of decisions has the advantage of greater clearness and directness. A careful judge may readily so submit a case under it to the jury that they can hardly fail to reach the right conclusion.

We are well aware of the importance of the principle involved in this inquiry. These securities are found in the channels of commerce everywhere, and their volume is constantly increasing. They represent a large part of the wealth of the commercial word. The interest of the community at large in the subject is deep-rooted and wide-branching. It ramifies in every direction, and its fruits enter daily into the affairs of persons in all conditions of life. While courts should be careful not so to shape or apply the rule as to invite aggression or give an easy triumph to fraud, they should not forget the considerations of equal importance which lie in the other direction. In Miller v. Race, Lord Mansfield placed his judgment mainly on the ground that there was no difference in principle between bank notes and money. In Grant v. Vaughan, he held that there was no distinction between bank notes and any other commercial paper. At that early period his far-reaching sagacity saw the importance and the bearings of the subject.

The instruction under consideration in the case before us is in conflict with the settled adjudications of this court.

JUDGMENT REVERSED, and the case remanded for further proceedings in conformity to this opinion.

title: Murray v. Lardner/Opinion of the Court


text: Talk:Murray v. Lardner/Opinion of the Court

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


text:
Heckers v. Fowler

JOHN FOWLER brought suit in the Circuit Court for the Southern District of New York, against John and George Hecker, to recover damages for a breach of covenant. The declaration alleged that the plaintiff, who was the patentee of an improvement in making flour, had granted to the Heckers the right to supply a particular district with such flour, &c., paying so much per barrel. Defence, that the patent was worthless, and that the plaintiff had failed to maintain its validity at his own cost, as he had agreed to do. Replication; issue, and joinder. While the case was thus pending, the attorneys of the parties agreed to refer it to a 'referee, to hear and determine the same, and all issues therein, with the same powers as the court, and that an order be entered, making such reference; and that the report of said referee have the same force and effect as a judgment of said court.' One of the judges accordingly 'ordered that the cause be referred to H. Cramm, Esq., to hear and determine all the issues herein, with the fullest powers ordinarily given to referees; and that on filing the report of the said referee with the clerk of the court, judgment be entered in conformity therewith, the same as if the cause had been tried before the court.' The referee heard the case, and without stating what his findings were upon any of the several issues presented in the pleadings, made the finding, simply and generally, that there was due to plaintiff, John Fowler, from the defendants, John and George Hecker, the sum of $9500, besides costs, all which he 'reported' to the court. On this, the attorneys of Fowler drew up the form of a judgment, and without the presence or action of the court, except the order of reference already alluded to, filed it with the clerk, who thereon entered judgment, as a judgment of the court, for the amount reported, with costs. The defendant took this writ of error.

It is necessary here to state that, by the code of New York, a referee is clothed with the attributes of a judge. A trial by him is to be conducted in the same manner as a trial by the court; he may grant adjournments, allow amendments, compel the attendance of witnesses. His decisions may be excepted to and revised, as in cases of appeal from courts of record. It is also enacted, that 'the report of the referees upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court.'

Mr. Norton, for the plaintiff in error: No objection, we think, can properly be taken to the right of this court to entertain the matters here presented; although it might be suggested that the facts in this case not having been found either by a general or special verdict, nor agreed upon in a case stated, and there being no bill of exceptions, there are no questions open to revision here, and hence that this court will affirm the judgment of the court below, of course. We apprehend it to be clear, however, that while this court will not review the judgment of inferior courts made without the intervention of juries, or on a case stated, it will, at the same time, exercise its superintending care in preventing the judgments of State judicial officers from being interpolated into the records of the courts of the United States, and being enforced by the process of those courts.

Assuming, then, the jurisdiction to exist, we observe:

1. That the declaration, which relies on a contract in restraint of trade, does not set forth a sufficient cause of action. But,

2. The case presents to us a record of mixed proceedings, commenced before a judicial officer of the United States, conducted by a judicial officer unknown to the courts of the United States, whose judgment (or a paper purporting to be a judgment) is filed in the office of the United States Circuit Court, attached to the pleadings by its clerk, and made a part of the record in this case. Will such a proceeding be allowed? State courts are authorized by statutes to have such proceedings; but without statute the proceedings would be very irregular, and there is no statute of the United States which authorizes them in the Federal courts. This court has, indeed, decided, that if the parties agree to submit the trial both of fact and law to the judge, they constitute him an abitrator or referee, whose award must be final and conclusive between them; but no consent can constitute this court appellate arbitrators. But in this and in other cases which might be cited, the judgment was rendered by a judge created by the laws of the United States, whose function it is to pronounce judgments in the courts of the United States. In this record there is no such judgment. Whatever is rendered, is rendered by a person wholly unjudicial, and dehors the tribunal; or coming into it only pro hac vice. Even if it is a judgment in the Circuit Court, it is not a judgment of the court.

3. The referee did not decide the case in conformity with the order of court. He did not 'determine all the issues of the case;' but made a single and general finding that there was due such a sum.

4. But even the referee's judgment was not properly entered. In fact, though he made a report, he gave no judgment. The clerk gave the judgment. It is, therefore, invalid, and cannot be enforced.

Mr. Andrews, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: Heckers v. Fowler


text: Talk:Heckers v. Fowler

title: Talk:Heckers v. Fowler


text:
Page:Cournot Theory of Wealth (1838).djvu/31

 Rh relation, like all precise conceptions it can become the object of theoretical deductions, and if these deductions are sufficiently numerous and seem important enough to be collected into a system, it will presumably be advantageous to present this system by itself, except for such applications as it may seem proper to make to those branches of Political Economy with which the theory of wealth is ultimately connected. It will be useful to distinguish what admits of abstract demonstration from what allows only of a questionable opinion.

The Theory of Wealth, according to the idea we are trying to give, would doubtless only be an idle speculation, if the abstract idea of wealth or value in exchange on which it is founded, were too far from corresponding with the actual objects which make up wealth in the existing social status. The same would be true of hydrostatics if the character of ordinary fluids should be too far removed from the hypothesis of perfect fluidity. However, as we have already said, the influence of a progressive civilization constantly tends to bring actual and variable relations nearer and nearer to the absolute relation, which we attain to from abstract considerations. In such matters everything becomes more and more easily valued, and consequently more easily measured. The steps towards finding a market resolve themselves into brokerage, losses of time into discounts, chances of loss into insurance charges, and so on. The progress of the gregarious tendency and of the institutions related to it, and the modifications which have taken place in our civil institutions, all cooperate towards this mobility, which we would neither apologize for nor detract from, but on which the application of theory to social facts is founded.


text:
Heckers v. Fowler/Opinion of the Court

This is a writ of error to the Circuit Court of the United States for the Southern District of New York.

Suit was brought in this case by the present defendant, and judgment was rendered in his favor in the court below. Action was referred, under a rule of court, by consent of the parties, and the judgment in the case was rendered upon the report of the referee, made in pursuance of the rule of reference. Original defendants sued out this writ of error, and now seek to reverse the judgment upon the several grounds hereinafter mentioned. Errors assigned at the argument were in substance and effect as follows:

1. That the declaration and the matters therein contained are not sufficient in law to enable the plaintiff to maintain the action.

2. That the Circuit Court erred in passing the order that the action should be referred, and that the matters in controversy should be heard and determined by a referee.

3. That the action of the referee was erroneous, because he did not determine all or any of the issues involved in the pleadings.

4. That the judgment set forth in the transcript is invalid, and not such a one as can be enforced in the Circuit Court of the United States.

1. First objection was not much pressed at the argument, and is entirely without merit, as will be obvious from a brief examination of the record. Plaintiff was assignor and patentee of a certain invention, described as a new and useful improvement in the preparation of flour for the making of bread; and the substance of the declaration was that the defendants, in consideration that the plaintiff had granted to them the exclusive right to supply a certain district with such prepared flour, and to manufacture and vend therein the patented ingredients used in the preparation of the same, promised to account with and pay over to the plaintiff a certain tariff for every barrel of flour so supplied, and for the patented ingredients, when manufactured and sold separately, to be used in its preparation. Agreement was in writing and under seal, and the action was, covenant broken to recover damages for the neglect and refusal to account and pay the tariff according to the terms of the contract. Pending the suit, the defendants appeared and pleaded to the merits. They made no objection to the declaration, and if they had, it must have been overruled, as it is in all aspects sufficient and well drawn.

2. Substance of the second objection is, that the Circuit Court erred in allowing the reference. Defence, among other things, was that the plaintiff agreed to maintain the validity of the patent at his own expense during the period the defendants should be engaged in the business, and that he neglected and refused so to do, and that the patent was invalid and worthless. Replication of the plaintiff reaffirmed the facts set forth in the declaration, and tendered an issue to the country, which was duly joined by the defendants. Pleadings being closed, the parties agreed in writing to refer the cause to a referee, 'to hear and determine the same and all the issues therein, with the same powers as the court, and that an order be entered making such reference, and that the report of the referee have the same force and effect as a judgment of the court.'

Following that agreement is the order of the court allowing the reference, which is the subject of complaint. Recital of the record is, that on reading and filing the agreement 'the court ordered that the cause be referred' to the referee therein named, to hear and determine all issues therein with the fullest powers ordinarily given to referees, and that on filing the report of the said referee with the clerk of the court, judgment be entered in conformity therewith the same as if said cause had been heard before the court, and the attorneys of the parties annexed their consent in writing to the order.

Intention of the court and of the parties was to refer the action; and the requirement of the referee was that he should hear and determine the matters in controversy, and make his report to the court in which the action was pending. Defendants insist that such a reference of a pending suit in the Circuit Court of the United States is invalid, because such courts have no power to authorize such a proceeding. Such is the substance of the several propositions submitted by the defendants on this branch of the case. They admit that the State courts have such powers, but insist that the power is derived from statute, and that the Circuit Courts cannot exercise it, because there is no act of Congress which confers any such authority.

Where the United States are plaintiffs, or an alien is a party, or the suit is between a citizen of the State where the suit is brought and a citizen of another State, the Circuit Courts of the United States have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars. Record shows that the plaintiff was an alien, and that the defendants were citizens of the State where the suit was brought. Amount in dispute exceeds the sum or value of five hundred dollars, and inasmuch as the suit was of a civil nature, at common law, the jurisdiction of the court was clear beyond cavil.

Scope of the objection, however, does not directly involve the question of jurisdiction, but has respect to the mode of trial as substituting the report of a referee for the verdict of a jury. Circuit Courts, as well as all other Federal courts, have authority to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States. Practice of referring pending actions is coeval with the organization of our judicial system, and the defendants do not venture the suggestion that the practice is repugnant to any act of Congress. On the contrary, this court held, in the case of the Alexandria Canal Co. v. Swan, that a trial by arbitrators, appointed by the court, with the consent of both parties, was one of the modes of prosecuting a suit to judgment as well established and as fully warranted by law as a trial by jury, and, in the judgment of this court, there can be no doubt of the correctness of that proposition.

Doubts were, nevertheless, entertained whether a bill of exceptions would lie to the ruling of the Circuit Court in overruling the objections filed by the losing party to the acceptance of the report or award of a referee appointed under a rule of court: York and Cumberland R. R. Co. v. Myers. Opinion of the court in that case shows that the action, at the time of the reference, was pending in the Circuit Court of the United States for the District of Maine. Myers brought the suit, and the parties, before trial, agreed to refer the action to three persons, to be appointed by the court. Presiding justice named three persons as referees, and the rule issued by the clerk provided that their report, or the report of a majority of them, 'was to be made to the court as soon as may be, and that judgment thereon was to be final, and execution to issue accordingly.' Subsequently, one of the persons so appointed was, with the leave of the court, authorized by the parties to sit alone, and he made a report awarding damages to the plaintiff.

Corporation defendants, when the report was made, submitted written objections to the acceptance of the same, and examined the referee in support of the objections. Question presented was, whether the report should be accepted or rejected; but the circuit judge overruled the objections, accepted the report, and rendered judgment for the plaintiff for the amount reported by the referee. Defendants excepted to the rulings of the court, and sued out a writ of error to reverse the judgment. Preliminary objection in this court was that the bill of exceptions would not lie, because the proceedings, as it was insisted, had been irregular; but this court held otherwise, and decided the cause upon the merits. Conclusion of the court was that the equity of the statute, allowing a bill of exceptions in courts of common law, embraces all such judgments or opinions of the court arising in the course of a cause as are the subjects of revision by an appellate court, and which do not otherwise appear on the record.

Subordinate tribunal, say the court, must ascertain the facts upon which the judgment or opinion excepted to is founded, which undoubtedly is correct for the reason there given, that this court cannot determine, in cases at common law, the weight or effect of evidence, nor decide mixed questions of law and fact. Allusion is then made to the fact, that appellate courts in other jurisdictions are accustomed to revise such judgments and opinions, and the court say, 'Upon principle we can see no objection to the introduction of the same practice into the courts of the United States, under the limitations we have indicated.' Taken as a whole, that case is decisive of the question under consideration. But it is a mistake to suppose that the practice referred to was first sanctioned in this court by the opinion in that case. Ample authority for it is to be found in a decision of this court, pronounced more than forty years before the question in that case was argued. Reference is made to the case of Thornton v. Carson, in which the opinion was given by Chief Justice Marshall. Statement of the case shows that two pending actions were referred by consent under a rule of court. Arbitrators made an award. Effect of the award was that the defendant was to pay to the plaintiff (Carson) the amount of the bonds in suit, unless by a certain day he made a conveyance to the plaintiff of the property described in the award; in which latter event he was to receive from the plaintiff a transfer of certain shares in a mining company, and to be discharged from the payment of the money, an entry to that effect to be made in the suits. Defendant failed to perform the act which would entitle him to such an entry in the case, and consequently became liable to pay the sums awarded by the referee. Oral objections were made to the acceptance of the award, but the court overruled the objections, and rendered judgment for the plaintiff on the award for the amount of the money awarded. None of the evidence introduced when the award was accepted appeared in the record, and no bill of exceptions was tendered to the ruling of the court, but the defendant removed the cause into this court by a writ of error. Under those circumstances, this court refused to revise the rulings of the Circuit Court; but, in disposing of the case, the court say, if he, the original plaintiff, failed to do that which warranted the court in entering judgment on the award, it was the duty of the complaining party to have shown that fact as a cause against entering judgment, and to have spread all the facts upon the record, which would enable this court to decide whether the court below acted correctly or not. Various other objections were also taken to the proceedings; but they were all overruled, and the judgment was affirmed. Similar views have been expressed by this court on other occasions, but it is not thought necessary to do more than to refer to the other cases, as those already examined are believed to be decisive.

Practice of referring pending actions under a rule of court, by consent of parties, was well known at common law, and the report of the referees appointed, when regularly made to the court, pursuant to the rule of reference, and duly accepted, is now universally regarded in the State courts as the proper foundation of judgment.

3. Third objection is, that the action of the referee was erroneous, because he did not determine all of the issues between the parties. Evidently the objection is founded in a mistaken view of the duty of the referee as prescribed in the rule of reference. He was not required, either by the agreement of the parties or by the order of the court, to report specially what his finding was upon the several issues presented in the pleadings. His duty was to determine all the issues, and to report the result of his finding. Referee reported that, having heard and examined the matters in controversy in the cause, and having examined on oath the several witnesses produced, there was due to the plaintiff the sum of nine thousand and five hundred dollars, besides the costs of suit. Presumption is, that he did determine all the issues, and inasmuch as there was no evidence to the contrary, the conclusion must be to the same effect.

4. Fourth objection is, that the judgment is invalid and cannot be enforced. Defect suggested is, that the judgment was rendered by the clerk and not by the court; but the record, when properly understood, does not sustain the objection. Judgments are always entered by the clerk under the authority of the court. Prevailing party is entitled to judgment, and it is not the practice in the Circuit Courts to require a rule for judgment to be entered in any case, as is the practice in some of the courts in the parent country. Entry of judgment in term time is never made except by leave of court; but the motion need not be in writing, and the order of the court is seldom or never entered in the minutes. When the term closes, judgments are entered by the clerk under the general order without motion; and yet no one ever doubted that a judgment entered under such circumstances was the act of the court and not of the clerk. Reference of a pending action is ordinarily perfected in term time by an entry made under the case by the clerk, at the request of the parties, that it is 'referred,' and with the addition of nothing else except the names of the referees, or it may be done, as it was in this case, by a written agreement, signed by the parties or their attorneys, and filed in the case. When that is done a rule is then issued, or the order of the court may be entered in the minutes, as was done in this record. Duty of the referee is to notify and hear the parties, and then to determine the controversy, and make a report or award to the court in which the action is pending, and from which the rule was issued. Judgment, however, cannot in general be entered in conformity to the report or award until it is accepted or confirmed by the court. Reason for the rule is, that whenever it is presented, and before it is accepted, the party against whom it is made may object to its acceptance; but if required by the court, he must reduce his objections to writing, and file them in the case. Hearing is then had, and after the hearing the court may accept or reject the report; or, if either party desires it, the report may, for good cause shown, be recommitted. Such a report of referees is in many respects a substitute for the verdict of a jury. Where there is no agreement to that effect, no judgment can be entered on such a report until the same has been accepted. Present case, however, must be determined upon the peculiar circumstances disclosed in the record. Parties agreed that the report of the referee should have the same force and effect as a judgment of the court, and the court ordered, by consent of parties, that on filing the report with the clerk of the court, judgment should be entered in conformity therewith, the same as if the cause had been tried before the court. Referee accordingly made the report and filed it as required, and thereupon the clerk entered the judgment pursuant to the order of the court and the agreement of the parties. Proceedings of the referee were correct, and the losing party made no objections to the report. Judgment having been entered without objection, and pursuant to the order of the court and the agreement of the parties, it is not possible to hold that there is any error in the record.

Theory of the objection is unfounded in fact, and upon that ground it is overruled. The judgment of the Circuit Court is, therefore,

AFFIRMED WITH COSTS.

title: Heckers v. Fowler/Opinion of the Court


text: Talk:Heckers v. Fowler/Opinion of the Court


text: Ex parte Dugan

title: Ex parte Dugan


text: Talk:Ex parte Dugan

title: Talk:Ex parte Dugan


text:
Ex parte Dugan/Opinion of the Court

ON a petition for a certiorari to the Supreme Court of the District of Columbia to send up the record of their proceedings upon a habeas corpus issued from that court upon the application of the petitioner, it was stated by Mr. J. H. Bradley, counsel of the petitioner, that a copy of the record had been obtained; and he asked this court, upon the admission of the Attorney-General that the copy was a correct one, to hear the case without a return from the court below. The Attorney-General, on the other hand, while admitting the copy of the record produced to be correct, moved the court, for reasons which he laid, to continue the case.

BY THE COURT.

We think it the better, as well as the more regular practice, to await the return of the court below before taking any action on the merits. The certiorari will, therefore, be now awarded. Upon the coming in of the return the case will be regularly before us; and the motion for continuance made by the Attorney-General will then be disposed of.

ACTION ACCORDINGLY.

title: Ex parte Dugan/Opinion of the Court


text: Talk:Ex parte Dugan/Opinion of the Court


text: Circassian

title: Circassian


text: Talk:Circassian

title: Talk:Circassian


text:
Circassian/Opinion of the Court

THE steamship Circassian, a merchant steamer under British colors, was captured with a valuable cargo by the United States steamer Somerset, for an attempted violation of the blockade established in pursuance of the proclamation of the President, dated 19th of April, 1861. Both vessel and cargo were condemned as lawful prize by the District Court for the Southern District of Florida; and the master, as representative of both, now brought the decree under the review of this court by appeal.

The capture was made on the 4th of May, 1862,-the date is important,-seven or eight miles off the northerly coast of Cuba, about half way between Matanzas and Havana, and about thirty miles from Havana; the ship at the time ostensibly proceeding to Havana, then distant but two or three hours' sail. The main voyage was begun at Bordeaux. There she took a cargo,-no part of it contraband,-and was making her way to Havana when captured. Pearson & Co., of Hull, British subjects, were her ostensible owners. The cargo was shipped by various English and French subjects, and consigned to order. The bills of lading spoke of the ship as 'loading for the port of Havana for orders;' and the promise of the bills was to deliver the packages 'to the said port of Havana, there to receive orders for the final destination of my said steamer, and to deliver the same to Messrs. Brulatour & Co., or their order, he or they paying me freight in accordance with the terms of my charter-party, which is to be considered the supreme law as regards the voyage of said steamer, the orders to be received for her and her final destination.' The master swore positively that he did not know of any destination after Havana; nor did the depositions directly show an intention to break the blockade.

The evidence of this intent rested chiefly on papers found on the vessel when captured, and in the inference arising from the spoliation of others. Thus while on her way from Cardiffe to Bordeaux, the ship had been chartered by Pearson & Co. to one J. Soubry, of Paris, agent for merchants loading her; the charter-party containing a stipulation that she should proceed to Havre or Bordeaux as ordered, and then to load from the factories of the said merchants a full cargo, and 'therewith proceed to Havana, Nassau, or Bermuda, as ordered on sailing, and thence to proceed to a port of America, and to run the blockade, IF SO ORDERED by the freighters.'

Taken on freight of Mr. Bouvet, Jr., by order and for account of Mr. J. Soubry, on board of the British steamer Circassian, &c., bound to Nassau, Bermuda, or Havana, the quantity, &c. Mr. J. Soubry engages to execute the charter-party of affreightment that is to say, that the merchandise shall not be disem barked but at the port of New Orleans, and to this effect he engages to force the blockade, for account and with authority of J. Soubry.

LAIBERT, Neveu.

And on this was indorsed, by one P. Debordes, who was the ship's husband or agent at Bordeaux, these words:

BORDEAUX, 15 February, 1862.

Sent similar memorandum to the parties concerned.

P. DESBORDES.

So, too, Bouvet wrote his correspondents in New Orleans, as follows, the letter being found on the captured vessel:

BORDEAUX, 1st April, 1862.

Confirming my letter of the 29th ult., copy of which is annexed, I inclose herewith bills lading for 659 packages merchandise, and 92 small casks U. P.; also, copy of charter-party, and private memorandum, per Circassian, in order that you may have no difficulty in settling the freight by that vessel.

The Circassian has engaged to force the blockade, but should she fail in doing so, you will act in this matter as you may deem best. I intrust this matter entirely to you.

Accept, gentlemen, my affectionate salutations.

E. BOUVET.

In addition to these papers, various private letters, mostly, of course, in French, from persons in Bordeaux to their correspondents at Havana and New Orleans, were found on the vessel. One of these spoke of the steamer as 'loading entirely with our products for New Orleans, where, it is said, she has engaged to introduce them;' another describes her 'as arrived at Bordeaux, a month since, to take on board a fine cargo, with which to force the blockade;' a third, as 'a very fast sailer, loaded in our port for New Orleans, where she will proceed, after having touched at Havana;' a fourth, as 'about to try to enter your Mississippi, touching, previously, at Havana.' So others, with similar expressions. A British house of Belfast, sending a letter by her to Havana, 'takes it for granted that she will proceed with her freight to New Orleans.' A French one of Bordeaux had a different view as to her getting there. This one writes:

'We are going to have a British steamer here of a thousand tons cargo for your port. We shall ship nothing by her, because the affair has been badly managed. Instead of keeping it a secret, it has been announced in Paris, London, and Bordeaux. Of course, the American Government is well informed as to all its details; and if the steamer ever enters New Orleans, it will be because the commanding officer of the blockading squadron shuts his eyes. If he does not, she must be captured.'

In addition to this evidence, it appeared that a package of letters, which were sent on board at Panillac, a small place at the mouth of the Gironde, after the Circassian had cleared from Bordeaux, and was setting off to sea, were burned after the vessel hove to, and before the officers of the Somerset came on board, at the time of capture.

So far with regard to evidence of intent to break the blockade. This case, however, presented a special feature.

The capture, as already noted, took place on the 4th of May, 1862; at which date the city of New Orleans, for whose port the libellants alleged that the vessel had been really about to run, was in possession, more or less defined and firm, of the United States. The history was thus:

A fleet of the United States, under Commodore Farragut, having captured Forts Jackson and St. Philip on the 23d of April, reached New Orleans on the 25th. On the 26th, the commodore demanded of the mayor the surrender of the city. The reply of the mayor was 'that the city was under martial law, and that he would consult General Lovell.' The rebel Lovell declared, in turn, that 'he would surrender nothing;' but, at the same time, that he would retire, and leave the mayor unembarrassed. On the 26th, the flag-officer sent a letter, No. 2, to the mayor, in which he says:

'I came here to reduce New Orleans to obedience to the laws, and to vindicate the offended majesty of the Government. The rights of persons and property shall be secured. I therefore demand the unqualified surrender of the city, and that the emblem of sovereignty of the United States be hoisted upon the City Hall, Mint, and Custom House, by meridian of this day. And all emblems of sovereignty other than those of the United States must be removed from all public buildings from that hour.'

To this the mayor transmitted, on the same day, an answer, which he says 'is the universal sense of my constituents, no less than the prompting of my own heart.' After announcing that 'out of regard for the lives of the women and children who crowd this metropolis,' General Lovell had evacuated it with his troops, and 'restored to me the custody of its power,' he continues:

'The city is without the means of defence. To surrender such a place were an idle and an unmeaning ceremony. The place is yours by the power of brutal force, not by any choice or consent of its inhabitants. ''As to hoisting any flag other than the flag of our own adoption and allegiance, let me say to you that the man lives not in our midst whose hand and heart would not be paralyzed at the mere thought of such an act; nor can I find in my entire constituency so wretched and desperate a renegade as would dare to profane with his hand the sacred emblem of our aspirations. . . .. Your occupying the city does not transfer allegiance from the government of their choice to one which they have deliberately repudiated'', and they yield the obedience which the conqueror is entitled to extort from the conquered.'

At 6 A.M. of the 27th, the National flag was hoisted, under directions of Flag-officer Farragut, on the Mint, which building lay under the guns of the Government fleet; but at 10 A.M. of the same day an attempt to hoist it on the Custom House was abandoned; 'the excitement of the crowd was so great that the mayor and councilmen thought that it would produce a conflict and cause great loss of life.'

On the 29th, General Butler reports that he finds the city under the dominion of the mob. 'They have insulted,' he says, 'our flag; torn it down with indignity. . . .. I send a marked copy of a New Orleans paper containing an applauding account of the outrage.'

On the same day that General reported thus:

'The rebels have abandoned all their defensive works in and around New Orleans, including Forts Pike and Wood on Lake Pontchartrain, and Fort Livingston on Barataria Bay. They have retired in the direction of Corinth, beyond Manchac Pass, and abandoned everything in the river as far as Donaldsonville, some seventy miles beyond New Orleans.' To the reader who does not recall these places in their relations to New Orleans, the diagram on the page preceding will present them.

A small body of Federal troops began to occupy New Orleans on the 1st of May. On the 2d, the landing was completed. The rebel mayor and council were not deposed. There was no armed resistance, but the city was bitterly disaffected, and was kept in order only by severe military discipline, and the rebel army was still organized and in the vicinity.

The blockade in question, as already mentioned, was declared by proclamation of President Lincoln in April, 1861; and was a blockade of the whole coast of the rebel States. No action to terminate it was taken by the Executive until the 12th of May, 1862, when, after the success of Flag-officer Farragut, the President issued a proclamation that the blockade of the port of New Orleans might be dispensed with, except as to contraband of war, on and after July 1st following.

The case thus presented two principal questions:

1. Was the port of New Orleans, on the 4th of May, under blockade?

2. If it was, was the Circassian, with a cargo destined to that place, then sailing with an intent to violate it?

Supposing the cargo generally guilty, a minor question was, as to a particular part of it, asserted to have been shipped by Leech & Co., of Liverpool, British subjects, and of which a certain William Burrows was really, or in appearance, 'supercargo.'

Burrows himself swore-his own testimony being the only evidence on the subject-that he did not know of any charter-party for the voyage; that he received the bills of lading (which, like all the bills, were in French) from Messrs. Desbordes & Co., the ship's agents at Bordeaux; that he knew nothing about any papers relating to other portions of the cargo; that he was going to Havana to sell this merchandise, shipped by Leech, Harrison & Co., and was to return to Liverpool, either by the way of St. Thomas or New York; that he knew of no instructions to break the blockade; had heard nothing about the vessel's entering or breaking the blockade of any port, either before sailing or on the voyage, from any person as owner or agent, or connected with the vessel or cargo. No letters or other papers were found compromising this portion of the cargo other than as above stated.

The statutory port of New Orleans, as distinguished from the city of New Orleans itself, it may here be said, includes an extended region along the Mississippi above the city, parts of which were, at this date and afterwards, in complete possession of the rebels.

Messrs. A. F. Smith and Larocque, for the claimants of the ship and cargo:

I. A blockade is an interruption, by one belligerent, of communication, by any persons whatever, with a place occupied by another belligerent. No right exists in a belligerent, as against a neutral, to blockade his own ports. That would be war upon the neutral. Blockade is a right of war against the enemy, and affects the neutral only incidentally, and from the necessity of the case. It is a right burdensome to neutrals, and is strict in its character. It is one which is claimed by the belligerent and yielded by the neutral, so long, and only so long, as a blockade is maintained which is in accordance with and recognized by the law of nations. The blockade of his own ports would be an embargo, an act of war against the neutral, thereby made and treated as an enemy. The embargo draws after it belligerent rights, and of a character entirely different from those that belong to a blockade; which are peaceful.

Now, was New Orleans, on the 4th of May, an enemy's port? Plainly not. The United States v. Rice, in this court, some years since, is in point. In A.D. 1814, a place called Castine, on the south coast of the State of Maine, was captured by the British, then at war with us; and remained under the control of their military and naval forces until peace, in 1815. They established a custom-house under ordinary British laws. Certain goods were imported into the place during this interval; and, on the repossession of the place by the American Government, the question was, whether the goods were liable to duty under the laws of the United States. This court held that they were not. 'By the conquest and military occupation of Castine,' say the court, 'the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over the place. The sovereignty of the United States was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory on the inhabitants, who remained and submitted to the conquerors. 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.' Our case is stronger than this. In the case just cited, the port was an American port, which fell under really foreign rule. This rule was an unnatural, exceptional, and temporary one. It was never regarded by any party as otherwise, or other than as an occupation during war, to be relinquished when peace should come. Great Britain, of course, never expected to hold permanently an isolated point in our country. With peace, the port was surrendered to us. Here, however, New Orleans had been seized by an insurrectionary faction only; certain Americans in temporary and mad revolt. We never ceased to regard New Orleans as a city of the United States. We never acknowledged her as belonging to any State but a State of this Union; a State then, as now, part of our one common country. In due time, and in a short time, the mob was brought, by the power of the Government, under its actual control, as the Government has always considered it to be under its constitutional right. The people were, at all times, American citizens; and at any moment, had they laid down their arms, these rights would have been conceded to them. With the suppression of the insurgent organization, law and order resumed the throne; the place became, in fact and in form, what it was always in law,-a port of the United States. Everything was remitted to its former condition. The case is one where the fiction of postliminy happens to be a fact; the just and benignant fiction of the Roman law, quae fingit eum qui captus est in civitate semper fuisse.

Very likely the presence of the Federal army was odious enough to both mob and gentry of New Orleans, to men and women alike, 'neutrals' and rebels as well. The population may have been all hostile, bitter, defiant, explosive. Still, the Federal army did keep its possession there, and with no other opposition than that of offensive words, gestures, and looks. Probably it was never in any danger; for if it had been insufficient, the Federal fleet lay beside the town, and could have destroyed it in a day. Here is the fact. From the hour that General Butler landed till this day, New Orleans has been under the Government control. That the fleet and army were not welcomed by the population with open hearts and arms, has nothing to do with the question.

The Government, then, was re-established, and everything was remitted. If this position be true, the right to capture was gone, no matter how guilty the design of the Circassian. 'When the blockade is raised, a veil is thrown over everything that has been done, and the vessel is no longer taken in delicto. The delictum may have been completed at one period, but it is, by subsequent events, entirely done away.'

II. As to intent to run the blockade, the only evidence tending to show this is derived from the documents found on board; and from these, the following are the most unfavorable inferences for the vessel and cargo which could be drawn:

1st. By the charter-party, the vessel was to proceed 'to Havana, Nassau, or Bermuda, as ordered on sailing, and thence to proceed to a port of America, and to run the blockade, IF SO ORDERED BY FREIGHTERS.'

2d. By a paper found, signed 'Laibert, Neveu' (nephew), Laibert engages, on behalf of Soubry, that the merchandise should not be disembarked but at the port of New Orleans, and, to this effect, he engages to force the blockade for account and with authority of Soubry.

3d. The bills of lading contain an engagement by the master to convey the cargo to the port of Havana, there to 'receive orders for the final destination of the steamer, and there to deliver the same to _____, they paying freight in accordance with the terms of the charter-party, which was to be considered the supreme law as regarded the voyage, the orders to be received for her, and her final destination.'

4th. There are letters from various shippers to their correspondents in Havana and New Orleans, showing their belief that she was going to New Orleans.

This, we say, is all the evidence. Apart, therefore, from the memorandum signed 'Laibert, Neveu,' of the genuineness of which and of whose authority there is no proof, how does the case stand? The Circassian was not, at the time of capture, and never had been, sailing to New Orleans, nor indeed to any port contiguous thereto; Havana and New Orleans are distant 650 miles. Then the controlling document is the charter-party; and, according to that, the eventual running of the blockade was dependent upon an option to be exercised by the charterer on arriving at Havana: the bills of lading were expressly made subject to the charter-party. Her voyage was, therefore, to Havana for orders-by the terms of the charter-party-by her bills of lading-and by the fact. At Havana there was a 'locus penitentiae.' The orders might never be given. Indeed, it is quite certain they never would have been given under the change of circumstances by the capture of New Orleans.

Authority supports the view that this change of purpose, if effected at Havana, would avoid the capture.

In The Imina, Sir William Scott decided, that where the vessel had originally sailed for Amsterdam, a blockaded port, under circumstances which would have subjected her to condemnation before changing her course; but the master, in consequence of information received at Elsinore, altered her destination, and proceeded towards Embden, she was not taken in delicto on a subsequent capture.

What difference exists between a guilty purpose forborne by the master, without the knowledge of the owners, and one not yet fully matured, but resting in contingency, merely, at the time of capture?

III. As respects the portion of the cargo under the care of Burrows. The evidence of this person, the supercargo, exculpates the owners, and the portion of the cargo owned by them, from all participation in even an intention to violate the blockade. The bills of lading were in French, which it does not appear that he understood. If he did, they, as do those for all the rest of the cargo, contain an express stipulation for the delivery of the goods to order, at Havana, on payment of the freight, according to the charter-party; and the reference to the latter instrument would neither authorize the carrying of the goods beyond that port, nor was it of a nature to awaken any uneasiness on the part of a supercargo bound only thither.

IV. The weight of American authority denies the right of capture, even where the vessel is proceeding directly to the blockaded port, before an approach near enough to actually attempt an entry; nor has that right been established in this court as mistakenly stated by some American authors; and the decisions in other courts of this country are decidedly against it. So also is the concurring testimony of the later Continental writers. The practice of the American Government has also been against it. The 'Columbia,' the earliest English case maintaining the doctrine, was decided in 1799, after the Revolution, and is not binding here.

V. The doctrine of continuous voyages is not applicable to a case of simple breach of blockade disconnected from contraband, the rule of 1756, or illegal trade between the subjects of the opposing belligerents. All the cases cited below are of one or the other of these classes. The 'Maria' and 'Charlotte Sophia' are not exceptions; for the voyage was really a direct on from the blockaded port in each case. This vessel could not be captured, therefore, while proceeding to Havana, for an intent afterwards to break the blockade of New Orleans.

VI. The Proclamation of May 12, 1862 (after this capture), founded on the 5th section of the act of July 13, 1861, did not retro-act; nor could either continue the blockade of our recovered port against neutrals. They apply only to trade between our own citizens.

Mr. Eames, contra, for the captors.

The CHIEF JUSTICE delivered the opinion of the court.

That the rebellion against the national Government, which, in April, 1861, took the form of assault on Fort Sumter, had, before the end of July, assumed the character and proportions of civil war; and that the blockade, established under the President's proclamation, affected all neutral commerce, from that time, at least, with its obligations and liabilities, are propositions which, in this court, are no longer open to question. They were not more explicitly affirmed by the judges who concurred in the judgment pronounced in the prize cases at the December Term, 1862, than by the judges who dissented from it.

The Government of the United States, involved in civil war, claimed the right to close, against all commerce, its own ports seized by the rebels, as a just and proper exercise of power for the suppression of attempted revolution. It insisted, and yet insists, that no one could justly complain if that power should be decisively and peremptorily exerted. In deference, however, to the views of the principal commercial nations, this right was waived, and a commercial blockade established. It was expected that this blockade, effectively maintained, would be scrupulously respected by nations and individuals who declared themselves neutral.

Of the various propositions asserted and controverted in the discussion of the cause now under consideration, two only need be examined in order to a correct understanding of its merits. It is insisted for the captors,

1. That on the 4th of May, 1862, the port of New Orleans was under blockade;

2. That the Circassian, with a cargo destined for New Orleans, was then sailing with intent to violate that blockade, and therefore liable to capture as naval prize.

Both propositions are denied by the claimants. We shall consider them in their order.

First, then, was the port of New Orleans under blockade at the time of the capture?

The city of New Orleans, and the forts commanding its approaches from the Gulf, were captured during the last days of April, 1862, and military possession of the city was taken on the 1st of May. Did this capture of the forts and military occupation of the city terminate the blockade of the port?

The object of blockade is to destroy the commerce of the enemy, and cripple his resources by arresting the import of supplies and the export of products. It may be made effectual by batteries ashore as well as by ships afloat. In the case of an inland port, the most effective blockade would be maintained by batteries commanding the river or inlet by which it may be approached, supported by a naval force sufficient to warn off innocent, and capture offending vessels attempting to enter.

The capture of the forts, then, did not terminate the blockade of New Orleans, but, on the contrary, made it more complete and absolute.

Was it terminated by the military occupation of the city?

The blockade of the ports of the insurgent States was declared from the first by the American Government to be a blockade of the whole coast, and so it has been understood by all governments. The blockade of New Orleans was a part of this general blockade. It applied not to the city alone, but controlled the port, which includes the whole parish of Orleans, and lies on both sides of the Mississippi, and all the ports on that river and on the lakes east of the city.

Now, it may be well enough conceded that a continuous and complete possession of the city and the port, and of the approaches from the Gulf, would make a blockade unnecessary, and would supersede it. But, at the time of the capture of the Circassian, there had been no such possession. Only the city was occupied, not the port, much less the district of country commercially dependent upon it, and blockaded by its blockade. Even the city had been occupied only three days. It was yet hostile; the rebel army was in the neighborhood; the occupation, limited and recent, was subject to all the vicissitudes of war. Such an occupation could not at once, of itself, supersede or suspend the blockade. It might ripen into a possession which would have that effect, and it did; but at the time of the capture it operated only in aid and completion of the naval investment.

There is a distinction between simple and public blockades which supports this conclusion. A simple blockade may be established by a naval officer, acting upon his own discretion or under direction of superiors, without governmental notification; while a public blockade is not only established in fact, but is notified, by the government directing it, to other governments. In the case of a simple blockade, the captors are bound to prove its existence at the time of capture; while in the case of a public blockade, the claimants are held to proof of discontinuance in order to protect themselves from the penalties of attempted violation. The blockade of the rebel ports was and is of the latter sort. It was legally established and regularly notified by the American Government to the neutral governments. Of such a blockade, it was well observed by Sir William Scott: 'It must be conceived to exist till the revocation of it is actually notified.' The blockade of the rebel ports, therefore, must be presumed to have continued until notification of discontinuance.

It is, indeed, the duty of the belligerent government to give prompt notice; and if it fails to do so, proof of discontinuance may be otherwise made; but, subject to just responsibility to other nations, it must judge for itself when it can dispense with blockade. It must decide when the object of blockade, namely, prevention of commerce with enemies, can be attained by military force, or, when the enemies are rebels, by military force and municipal law, without the aid of a blockading force. The Government of the United States acted on these views. Upon advice of the capture of New Orleans, it decided that the blockade of the port might be safely dispensed with, except as to contraband of war, from and after the 1st of June. The President, therefore, on the 12th of May, issued his proclamation to that effect, and its terms were undoubtedly notified to neutral powers. This action of the Government must, under the circumstances of this case, be held to be conclusive evidence that the blockade of New Orleans was not terminated by military occupation on the 4th of May. New Orleans, therefore, was under blockade when the Circassian was captured.

It remains to be considered whether the ship and cargo were then liable to capture as prize for attempted violation of that blockade.

It is a well-established principle of prize law, as administered by the courts, both of the United States and Great Britain, that sailing from a neutral port with intent to enter a blockaded port, and with knowledge of the existence of the blockade, subjects the vessel and, in most cases, its cargo to capture and condemnation. We are entirely satisfied with this rule. It was established, with some hesitation, when sailing vessels were the only vehicles of ocean commerce; but now, when steam and electricity have made all nations neighbors, and blockade running from neutral ports seems to have been organized as a business, and almost raised to a profession, it is clearly seen to be indispensable to the efficient exercise of belligerent rights. It is not likely to be abandoned until the nations, by treaty, shall consent to abolish capture of private property on the seas, and with it the whole law and practice of commercial blockade.

Do the Circassian and her cargo come within this rule?

The Circassian was chartered at Paris on the 11th of February, 1862, by Z. C. Pearson & Co. to J. Soubry, agent, and the charter-party contained a stipulation that she should proceed to Havre or Bordeaux, and, being loaded, proceed thence with her cargo to Havana, Nassau, or Bermuda, and thence to a port in America and 'run the blockade, if so ordered by the freighters.' With this charter-party was found on the ship, at the time of capture, a memorandum of affreightment given to Bouvet, one of the shippers, and signed 'For account and with authority of J. Soubry, Laibert, Neveu,' and containing this engagement: 'Mr. J. Soubry engages to execute the charter-party of affreightment; that is to say, that the merchandise shall not be disembarked except at New Orleans, and to this effect he engages to force the blockade.' With this paper was the following note, signed 'P. Desbordes:' 'Sent similar memorandum to the parties concerned.' This P. Desbordes was the ship's husband or agent at Bordeaux.

It is urged, on behalf of the claimants, that there is no evidence that Laibert had authority to act for Soubry; but the fact that the paper was found on the ship raises a presumption that he had that authority, and puts the burden of proof to the contrary on the claimants. Besides, it appears, from a letter written by Bouvet, that he forwarded by the ship, inclosed with this letter, the bills of lading of the goods shipped by him, and also 'a copy of the charter-party and private memorandum.' It can hardly be doubted that the copy of the charter-party in the record is this copy forwarded by Bouvet, or that the memorandum found with it is the private memorandum of which he writes. The circumstance that a similar memorandum was sent to the parties concerned raises an almost irresistible presumption that the other freighters shipped their merchandise under the same express stipulation to force the blockade.

It is hardly necessary to go further on the question of intent; but if doubt remained, it would be dispelled by an examination of the other papers and facts in the case. Every bill of lading contained a stipulation for the conveyance of goods described in it to Havana, in order to receive orders as to their ulterior destination, and for their delivery at that destination on payment of freight. Such, we think, is the true import of each bill before us. Almost every letter found on board the ship and contained in the record, affords evidence of intent to force the blockade. These letters were written, at Bordeaux, to correspondents at Havana and New Orleans, and speak of the steamer as 'loaded entirely with our products for New Orleans;' as 'arrived hither a month since, to convey to your place, New Orleans, by forcing the blockade, a very fine cargo;' as 'loaded in our port for New Orleans, whither she will proceed after touching at Havana;' as 'being a very fast sailer;' as 'going to attempt the entrance of your river, after previously touching at Havana;' as 'bound to your port, New Orleans;' as 'bound from Bordeaux to New Orleans;' and as 'having engaged to force the blockade.' Most of these letters were written by shippers, and relate to merchandise described in one or another of the bills of lading. Finally, it is proved that on the eve, and almost at the moment, of capture, the captain ordered the destruction of a package of letters put on board the ship, after she had cleared from Bordeaux, at Panillac, a town on the Gironde, nearer the sea. These letters, doubtless, related to the ship, the cargo, or the voyage, probably to all. Their destruction would be a strong circumstance against the ship and cargo, were the other facts less convincing; taken in connection with them, it irresistibly compels belief of guilty intent at the time of sailing and time of capture.

It was urged in argument that the ship was bound primarily to Havana, and might discharge her cargo there, and should not be held liable to capture for an intent which would have been abandoned on her arrival at that place.

We agree, that if the ship had been going to Havana with an honest intent to ascertain whether the blockade of New Orleans yet remained in force, and with no design to proceed further if such should prove to be the case, neither ship nor cargo would have been subject to lawful seizure. But it is manifest that such was not the intent. The existence of the blockade was known at the inception of the voyage, and its discontinuance was not expected. The vessel was chartered and her cargo shipped with the purpose of forcing the blockade. The destination to Havana was merely colorable. It proves nothing beyond a mere purpose to touch at that port, perhaps, and, probably, with the expectation of getting information which would facilitate the success of the unlawful undertaking. It is quite possible that Havana, under the circumstances, would have turned out to be, as was insisted in argument, a locus penitentioe; but a place for repentance does not prove repentance before the place is reached. It is quite possible that the news which would have met the vessel at Havana would have induced the master and shippers to abandon their design to force the blockade by ascending the Mississippi; but future possibilities cannot change present conditions. Nor is it at all certain that the purpose to break the blockade would have been abandoned. On the contrary, it is quite possible that the 'ulterior destination' mentioned in the bills of lading would have been changed to some other blockaded port. But this is not important. Neither possibilities nor probabilities could change the actual intention one way or another. At the time of capture, ship and cargo were on their way to New Orleans, under contract that the cargo should be discharged there and not elsewhere, and that the blockade should be forced in order to the fulfilment of that contract. This condition made ship and cargo then and there lawful prize.

There was some attempt, in argument, to distinguish that portion of the cargo shipped by William Burrows from the remainder. We do not think it can be so distinguished. The bill of lading of the goods shipped by him is expressed in the same terms as the bills of goods shipped by others, and Burrows himself states that he received it from P. Desbordes & Co.,-the same Desbordes who sent 'to the other parties' memorandums similar to that which was given to Bouvet, and which stipulated for breach of blockade. There is no indication in the bill of lading that any one except Burrows had any interest in these goods, and no testimony except his own to that effect. Against the strong circumstances which tend to prove that they were in equal fault with all the rest, his not very unequivocal statement, that they were destined for sale in Havana, cannot prevail.

The decree of the District Court, condemning the vessel and cargo as lawful prize, must be

AFFIRMED.

I am unable to concur in the judgment of the court in this case; and shall proceed to state briefly the grounds of my dissent, without entering upon the argument or discussion in support of them.

I think the proof sufficient to show, that the purpose of the master was to break the blockade of the port of New Orleans, and that it existed from the inception of the voyage: but, in my judgment, the defect in the case, on the part of the captors, is that no blockade existed at the port of New Orleans at the time the seizure was made. The city was reduced to possession by the naval forces of the United States, on the 25th of April preceding the seizure, and Forts Jackson and St. Philip on the 23d of the same month. They were situated on the opposite banks of the Mississippi River, about one-third of the way up to the city from its mouth. Admiral Farragut announced to the Government the capture and possession of the city on the day it took place, 25th of April, and General Butler, of the capture of the forts on the 29th. The latter announced, that the enemy had abandoned all their defensive works in and around New Orleans, including Forts Pike and Wood, on Lake Pontchartrain, and Fort Livingston on Barataria Bay; and had abandoned everything up the river as far as Donaldsville, some seventy miles beyond New Orleans. The authority of the Government of the United States had been restored over the city and its inhabitants; and over the Mississippi River, and both of its banks and the inlets to the same, from the ocean or gulf, including, also, the passage for vessels by the way of Lakes Borgne and Pontchartrain, the usual channel for vessels engaged in the coasting trade to and from New Orleans. And on the 1st of May, General Butler announced by proclamation, that the city of New Orleans and its environs, with all its interior and exterior defences, having surrendered to the combined land and naval forces of the United States, and being now in the occupation of these forces, the Major-General commanding hereby proclaims the objects and purposes of the United States in thus taking possession, &c., and the rules and regulations by which the laws of the United States would be, for the present, and during the state of war, enforced and maintained. The seizure of the vessel and cargo was made between Matanzas and Havana, on the 4th of May, several days after the city and port of New Orleans were reduced, and full authority of the United States extended and held over them.

A blockade under the law of nations is a belligerent right, and its establishment an act of war upon the nation whose port is blockaded. One of the most important of the belligerent rights is that of blockading the enemy's ports, not merely to compel the surrender of the place actually attacked or invested, but, as a means, often the most effectual, of compelling the enemy, by the pressure upon his financial and commercial resources, to listen to terms of peace. The object of a blockade, says Chancellor Kent, is not merely to prevent the importation of supplies, but to prevent export as well as import, and to cut off all communication of commerce with the blockaded port.

Now, the capture and possession of the port of the enemy by the blockading force, or by the forces of the belligerent, in the course of the prosecution of the war, puts an end to the blockade and all the penal consequences growing out of this measure to neutral commerce. The altered condition of things, and state of the war between the two parties in respect to the besieged port or town, makes the continuance of the blockade inconsistent with the code of international law on the subject; as no right exists on the part of the belligerent as against the neutral powers to blockade his own ports. This principle was recognized and applied by Sir W. Scott in the case of The Trende Soztre, decided in 1807. She was a Danish vessel and was on a voyage to the Cape of Good Hope, then the port of an enemy, with contraband articles on board, and was seized as a prize of war; but the vessel had arrived at the Cape after that settlement had surrendered to the British forces. The counsel for the captors insisted, that though the settlement had become British, the penalty would not be defeated, as the intention and the act continued the same; that there was no case in which such a distinction had been allowed on the question of contraband. 'The distinction,' it was remarked, 'which had been admitted in blockade cases, stood altogether on particular grounds, as arising out of a class of cases depending on the blockade of neutral ports, in which the court had expressed a disposition to admit all favorable distinctions.' The court, in delivering its opinion, observes: 'If the port had continued Dutch, a person could not have been at liberty to carry thither articles of a contraband nature, under an intention of selling other innocent commodities only, and of proceeding with the contraband articles to a port of ulterior destination. But before the ship arrives, a circumstance takes place which completely discharges the whole of the guilt. Because, from the moment when the Cape became a British possession, the goods lost their nature of contraband. They were going into the possession of a British settlement; and the consequence of any pre-emption that could be put upon them, would be British pre-emption.' The court also observed: 'It has been said, that this is a principle which the court has not applied to cases of contraband; and that the court, in applying it to cases of blockade, did it only in consideration of the particular hardships consequent on that class of cases. But I am not aware of any material distinction; because the principle on which the court proceeded was, that there must be a delictum existing at the moment of the seizure to sustain the penalty.' 'I am of opinion, therefore,' the judge says, in conclusion, 'that the same rule does apply to cases of contraband, and upon the same principle on which it has been applied in those of blockade.' See also the case of The Lisette, and of The Abby, in which the same principle is declared, and one of them a case of blockade.

The cessation of the blockade necessarily resulted from the capture and possession of the port and town of New Orleans. They no longer belonged to the enemy, nor were under its dominion, but were a port and town of the United States. They had become emphatically so, for the capture was not that of the territory of a foreign nation to which we had obtained only the right and title of a conqueror; but the conquest was over our own territory, and over our own people, who had by illegal combinations, and mere force and violence, subverted the laws and usurped the authority of the General Government. The capture was but the restoration of the ancient possession, authority, and laws of the country, the continuance and permanency of which, so far as the right is involved, depend not on conquest, nor on the success or vicissitudes of armies; but upon the Constitution of the United States, which extends over every portion of the Union, and is the supreme law of the land. The doubt, therefore, that arose in the case of the Thirty Hogsheads of Sugar v. Boile, and which was solved by Chief Justice Marshall, and related to the case of a foreign conquest, cannot arise in this case. The Chief Justice observed, 'Some doubt has been suggested whether Santa Cruz, while in possession of Great Britain, could properly be considered a British island. But for this doubt there can be no foundation. Although acquisitions made during war are not considered permanent until confirmed by treaty; yet, to every commercial and belligerent purpose they are considered as part of the domain of the conqueror, so long as he retains the possession and government of them. The Island of Santa Cruz, after the capitulation, remained a British island until it was restored to Denmark.' Now, as we have seen, it is not necessary to invoke this doctrine in a case where the capture is of territory previously belonging to the sovereign power acquiring it, and which is retaken and held under the organic law and authority of that power.

I have said, that the cessation of the blockade in question resulted from the capture and repossession of the port and town of New Orleans, and that there was no longer an enemy's port or town to be blockaded. In addition to this, the moment the capture took place, and the authority of the United States was established, the municipal laws of that government took the place of the international law upon which the blockade rested. The reason for its continuance no longer existed: it had accomplished its object as one of the coercive measures against the enemy to compel a surrender. So far as intercourse with the town became material, whether commercial or otherwise, after the capture and possession, it was subject to regulation by the municipal laws, and which is much more efficient and absolute and less expensive than the measure of blockade. It is true, these laws cannot operate extra-territorially; but within the limit of the jurisdiction, and which extends to a marine league from the coast, their control over all intercourse with the port or town is complete. Seizures of neutral vessels and cargo on the high seas are, indeed, not admissible, but blockades are not established for the purpose of these seizures; they are but incidental to the exercise of the belligerent right against the port of the enemy.

The proclamation of the President of the 12th of May, 1862, which announces that the blockade of the port of New Orleans shall cease after the 1st of June following, has been referred to as evidence of its continuance to that period. But I think it will be difficult to maintain the position upon any principle of international law, that the belligerent may continue a blockading force at the port after it has not only ceased to be an enemy's, but has become a port of its own. It is not necessary that the belligerent should give notice of the capture of the town, in order to put in operation the municipal laws of the place against neutrals. The act is a public event of which foreign nations are bound to take notice, and conform their intercourse to the local laws. The same principle applies to the blockade, and the effect of the capture of the port upon it. The event is public and notorious, and the effect and consequences of the change in the state of war upon the blockading force well understood.

I have felt it a duty to state the grounds of my dissent in this case, not on account of the amount of property involved, though that is considerable, or from any particular interests connected with the case, but from a conviction that there is a tendency, on the part of the belligerent, to press the right of blockade beyond its proper limits, and thereby unwittingly aid in the establishment of rules that are often found inconvenient, and felt as a hardship, when, in the course of events, the belligerent has become a neutral. I think the application of the law of blockade, in the present case, is a step in that direction, and am, therefore, unwilling to give it my concurrence.

[See infra, p. 258, The Venice; a case, in some senses, suppletory or complemental to the present one.]

title: Circassian/Opinion of the Court


text: Talk:Circassian/Opinion of the Court

title: Talk:Circassian/Opinion of the Court


text:
Freeborn v. Smith

THIS was a writ of error to the Supreme Court of Nevada Territory.

Smith had obtained a judgment against Freeborn and Shelden in the Supreme Court of Nevada; Nevada being at the time a Territory only, not a State. To this judgment a writ of error went from this court, under the law organizing the Territory, and the record of the case was filed here, December Term, 1862. After the case was thus removed, the Territory of Nevada was admitted by act of Congress, March, 1864, into the Union as a State. The act admitting the Territory contained, however, no provision for the disposal of cases then pending in this court on writ of error or appeal from the Territorial courts. Mr. Cope and Mr. Browning, in behalf of the defendants in error, accordingly moved to dismiss the writ in this and other cases similarly situated, on the ground that the Territorial government having been extinguished by the formation of a State government in its stead, and the act of Congress which extinguished it having, in no way, saved the jurisdiction of the court as previously existing, nothing further could be done here. The Territorial judiciary, it was urged, had fallen with the government, of which it was part; and the jurisdiction of this court had ceased with the termination of the act conferring it. Hunt v. Palao, and Benner v. Porter, were relied on to show that the court had no power over cases thus situated.

It being suggested by Mr. O'Connor and Mr. Carlisle on the other side, or as interested in other cases from Nevada similarly situated, that a bill was now before Congress supplying the omissions of the act of March, 1864, the hearing of the motion for dismissal was suspended till it was seen what Congress might do. Congress finally acted, and on the 27th of February, 1865, passed 'An Act providing for a District Court of the United States for the District of Nevada,' &c.

The eighth section of this enacts,--

'That all cases of appeal or writ of error heretofore prosecuted and now pending in the Supreme Court of the United States, upon any record from the Supreme Court of the Territory of Nevada, may be heard and determined by the Supreme Court of the United States; and the mandate of execution or of further proceedings shall be directed by the Supreme Court of the United States to the District Court of the United States for the District of Nevada, or to the Supreme Court of the State of Nevada, as the nature of said appeal or writ of error may require; and each of these courts shall be the successor of the Supreme Court of Nevada Territory as to all such cases, with full power to hear and determine the same, and to award mesne or final process thereon.'

The motion to dismiss the writ for want of jurisdiction was now renewed.

Assuming jurisdiction to exist, this case of Smith v. Freeborn, &c., was argued also on a question of merits. The judgment mentioned at the beginning of the case, which Smith had obtained against Freeborn and Shelden, he had obtained against them as secret surviving partners of a certain Shaw. One ground of the writ of error was that no evidence whatever had been offered of a partnership with Shaw between Freeborn and Shelden (a matter which was more or less patent on the record); and that judgment having gone against both (two jointly) and error as to one, the judgment would have to be reversed. A motion had been made and refused below for a new trial.

There was also another question of merits. To rebut the evidence of partnership, the defendants offered some letters between themselves and Shaw, and between themselves and one Eaton, an agent of theirs; which letters, though containing, as was urged, some admissions against their own interest, the court below refused to let go in evidence to disprove a partnership.

Its action on these two points was one matter argued, but the great question was that of jurisdiction, a matter affecting other cases as well as this.

Messrs. Cope and Browning for the motion to dismiss, &c.:

1. As to the jurisdiction, our position is that the act is a retrospective enactment interfering with vested rights. Certainly it attempts to confer on this court jurisdiction to review judgments which, by law, at the time of its passage were final and absolute. The necessary result of maintaining it would be to disturb and impair these judgments, unsettle what had been previously settled, and compel the parties to litigate anew matters already definitively adjudicated. There is no higher evidence that rights have vested than a final judgment solemnly confirming them. Law is defined to be a rule of conduct; and to call an enactment which undertakes to deal with past transactions, and subject them to new requirements and conditions as tests of their legality, a rule of conduct, is to confound all rational ideas on the subject. Ex post facto laws are expressly prohibited by the Constitution, but the courts would hardly enforce enactments of this nature even in the absence of any constitutional prohibition; because, being retrospective, and providing for the punishment of acts not illegal when committed, they are not laws in the true sense of that term, and not, therefore, within the sphere of legislative authority. The principle is entirely applicable to civil causes, and prevents any injurious intermeddling with past transactions. Legislative power begins and ends with the power to enact laws, and in respect to the conduct of men in their dealings and obligations, and in the acquisition of property, no valid law can be enacted which undoes or unsettles that which was legally done or settled under a previous law.

The validity of enactments of this character has frequently been denied. In Merrill v. Sherburne, Woodbury, J., says: 'Acts of the legislature which look back upon interests already settled or events which have already happened, are retrospective, and our Constitution has in direct terms prohibited them, because highly injurious, oppressive, and unjust. But perhaps their invalidity results no more from this express prohibition, than from the circumstance that in their nature and effect, they are not within the legitimate exercise of legislative power.' After speaking of ex post facto laws, he adds: 'Laws for the decision of civil causes made after the facts on which they operate, ex jure post facto, are alike retrospective, and rest on reasons alike fallacious.' In Bates v. Kimball, Aikens, J., says: 'The principle meant to be laid down is that an act not expressly permitted by the Constitution, which impairs or takes away rights vested under pre-existing laws, is unjust, unauthorized, and void.' In Staniford v. Barry, Prentiss, J., in referring to the decision in Bates v. Kimball, and the reasoning on which it was based, says: 'The case appears to have been maturely considered, and was decided on principles and authorities which are conclusive of the question. We have only to add, that the principles adopted have become settled constitutional law, and are universally recognized and acted upon as such, by all judicial tribunals in this country. They are found in the doctrines of learned civilians, and the decisions of able judges, without a single decision, or even opinion or dictum to the contrary. They not only grow out of the letter and spirit of the Constitution, but are founded in the very nature of a free government, and are absolutely essential to the preservation of civil liberty, and the equal and permanent security of rights.' In Lewis v. Webb, Mellen, C. J., lays it down as a settled rule, 'that a law retrospective in its operation, acting on past transactions, and in its operation disturbing, impairing, defeating, or destroying vested rights, is void, and cannot and must not receive judicial sanction.' In McCabe v. Emerson, Rogers, J., after stating that it could not be presumed that the legislature intended to give the act under consideration a retrospective effect, says: 'But granting that intention to be clearly expressed, I have no hesitation in saying that the act is unconstitutional and void. The legislature has no power, as has been repeatedly held, to interfere with vested rights.' We do not question the validity of retrospective statutes that are purely remedial, that give a remedy without disturbing or impairing rights. Whenever they attempt to interfere with a right, however, the legislature has passed the bounds of its authority, and the acts are void.

The court is here asked to review a judgment on which the law has already pronounced its final sentence. The act of Congress just obtained, concedes that the judgment has become final, but declares that it shall not remain so, and deprives the parties of any benefit from it until the matters settled by it are again adjudicated. If it be possible for a right to attach itself to a judgment, it has done so here, and there could not be a plainer case of an attempt to destroy it by legislative action. It is unimportant, of course, that the court ever had jurisdiction; if it proceed at all, it must proceed under the jurisdiction conferred by the act, and not under that which it formerly had. The case stands as if the judgment had been rendered by a court of last resort.

2. In passing the act Congress attempted to exercise power judicial in its nature, and not legislative. If this is so, it will follow as a necessary conclusion that the act is void.

What distinguishes judicial from legislative power? It is that the one is creative and the other administrative; the one creates or enacts laws by which the community is to be governed, and the other administers those laws as between the members of which the community is composed. Those matters of which the courts assume jurisdiction, and particularly those appertaining to the trial and determination of causes, are clearly and necessarily the subjects of judicial power. Such matters include all of the proceedings in a cause from its commencement to its termination, and it is certain that within these limits no other than judicial power can be exercised. Filing a complaint, summoning and empannelling a jury, rendering a verdict or judgment, granting or refusing a new trial, taking an appeal or suing out a writ of error, are all acts pertaining to the jurisdiction of the courts, and within the operation of this power. They must be done in pursuance of some law prescribed by legislative authority, but considered merely as acts done, or to be done, in the progress of a cause, a legislative body has no power or control over them, either to command the doing of them, or to set them aside when done. No one will deny that rendering a judgment is strictly a judicial act, and it is evident that the power exercised in rendering it must also be exercised in setting it aside, for the act of setting a judgment aside, like the judgment itself, is simply a proceeding in the cause. And so as to every act that may be done in a cause, from its inception to its close; it is merely a proceeding in the cause, and is purely judicial in its nature. There is no difference in this respect between one act or one proceeding in a cause and another, they are alike judicial in their nature, and exclusively the subjects of judicial power. If one such act may be done or undone by legislative authority, there is no reason why the same authority may not be employed to do or undo every act throughout the proceedings. The question ceases to be a question of power, and becomes one of discretion only.

In Merrill v. Sherburne, the question was as to the validity of a statute granting a new trial after final judgment, and in Bates v. Kimball, and Lewis v. Webb, as to the validity of statutes granting an appeal where the judgments had also become final. It was held, in all the cases, that the statutes were unconstitutional and void, that their effect was to take away the legal force of the judgments to which they applied, and that in respect to these judgments they amounted to orders or decrees, which the courts alone were competent to make. These cases were decided not only on reasoning the most conclusive, but on authorities of the highest respectability and weight.

The act of Congress undertakes to grant an appeal or review in certain cases, in which there was no right of review at the time of its passage. The cases had been prosecuted as far as they could be under the law as it then stood; and if they may be prosecuted farther now, it is because Congress has the power to open the judgments, and direct the matters in controversy to be tried anew. The act operates as a judicial order in each of the cases to which it applies.

Moreover, how can Congress authorize this court to issue its mandate to a State court in a matter which is of State jurisdiction? It would be plainly unconstitutional to do so. Perturbations of our whole judicial system would arise; and no one could calculate the extent of the disaster.

II. Respecting merits. The case is here short and easy.

1. As to the first point, this court cannot review the evidence on which a jury found.

2. As to the second, there was no error in refusing to let parties make proof in their favor out of correspondence between one another, and between themselves and their agent.

Messrs. O'Connor and Carlisle, with brief of Mr. Billings, contra.

I. As respects jurisdiction.

1. Independently of the act of Congress of 27th February, 1865, how does the case stand?

The Territorial government is said to have been extinguished by the formation and establishment of a State government in its stead. Admitting this, does it necessarily follow that all acts performed by any department of the Territorial government down to the last moment of its existence, must, by the annihilation of their author, become irreversibly enforceable forever? We think not.

If a tribunal, hastily gotten up in one of the newly created Territories, has given a judgment involving millions, in utter violation of law, equity, reason, and conscience, must that judgment stand irreversible, establishing the right forever, merely because the court that gave it was in articulo mortis at the time, and expired shortly afterwards? Again we think not.

The Territorial government has been superseded, not by a direct declaration of the legislative will to that effect, but merely as a necessary consequence of a new government having arisen in its stead. The Territorial judiciary fell with the government of which it was a part; but the Supreme Court of the United States never was any part of the Territorial government. It did not cease to exist when the State of Nevada was admitted, nor did it lose its power, in fact or in law, to annul a definitive judgment of the Territorial court which was unlawful, and which, however unlawful, must, nevertheless, until reversed, form a bar to justice between the parties in any earthly tribunal.

title: Freeborn v. Smith


text: Talk:Freeborn v. Smith

title: Talk:Freeborn v. Smith