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Bradwell v. The State

Mrs. Myra Bradwell, residing in the State of Illinois, made application to the judges of the Supreme Court of that State for a license to practice law. She accompanied her petition with the usual certificate from an inferior court of her good character, and that on due examination she had been found to possess the requisite qualifications. Pending this application she also filed an affidavit, to the effect 'that she was born in the State of Vermont; that she was (had been) a citizen of that State; that she is now a citizen of the United States, and has been for many years past a resident of the city of Chicago, in the State ofIllinois.' And with this affidavit she also filed a paper asserting that, under the foregoing facts, she was entitled to the license prayed for by virtue of the second section of the fourth article of the Constitution of the United States, and of the fourteenth article of amendment of that instrument.

The statute of Illinois on the subject of admissions to the bar, enacts that no person shall be permitted to practice as an attorney or counsellor-at-law, or to commence, conduct, or defend any action, suit, or complaint, in which he is not a party concerned, in any court of record within the State, either by using or subscribing his own name or the name of any other person, without having previously obtained a license for that purpose from some two of the justices of the Supreme Court, which license shall constitute the person receiving the same an attorney and counsellor-at-law, and shall authorize him to appear in all the courts of record within the State, and there to practice as an attorney and counsellor-at-law, according to the laws and customs thereof.

On Mrs. Bradwell's application first coming before the court, the license was refused, and it was stated as a sufficient reason that under the decisions of the Supreme Court of Illinois, the applicant-'as a married woman would be bound neither by her express contracts nor by those implied contracts which it is the policy of the law to create between attorney and client.' After the announcement of this decision, Mrs. Bradwell, admitting that she was a married woman-though she expressed her belief that such fact did not appear in the record-filed a printed argument in which her right to admission, notwithstanding that fact, was earnestly and ably maintained. The court thereupon gave an opinion in writing. Extracts are here given:

'Our statute provides that no person shall be permitted to practice as an attorney or counsellor at law without having previously obtained a license for that purpose from two of the justices of the Supreme Court. By the second section of the act, it is provided that no person shall be entitled to receive a license until he shall have obtained a certificate from the court of some county of his good moral character, and this is the only express limitation upon the exercise of the power thus intrusted to this court. In all other respects it is left to our discretion to establish the rules by which admission to this office shall be determined. But this discretion is not an arbitrary one, and must be held subject to at least two limitations. One is, that the court should establish such terms of admission as will promote the proper administration of justice; the second, that it should not admit any persons or class of persons who are not intended by the legislature to be admitted, even though their exclusion is not expressly required by the statute.

'The substance of the last limitation is simply that this important trust reposed in us should be exercised in conformity with the designs of the power creating it.

'Whether, in the existing social relations between men and women, it would promote the proper administration of justice, and the general well-being of society, to permit women to engage in the trial of cases at the bar, is a question opening a wide field of discussion, upon which it is not necessary for us to enter. It is sufficient to say that, in our opinion, the other implied limitation upon our power, to which we have above referred, must operate to prevent our admitting women to the office of attorney at law. If we were to admit them, we should be exercising the authority conferred upon us in a manner which, we are fully satisfied, was never contemplated by the legislature.

'It is to be remembered that at the time this statute was enacted we had, by express provision, adopted the common law of England, and, with three exceptions, the statutes of that country passed prior to the fourth year of James the First, so far as they were applicable to our condition.

'It is to be also remembered that female attorneys at law were unknown in England, and a proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a barrister, would have created hardly less astonishment than one that she should ascend the bench of bishops, or be elected to a seat in the House of Commons.

'It is to be further remembered, that when our act was passed, that school of reform which claims for women participation in the making and administering of the laws had not then arisen, or, if here and there a writer had advanced such theories, they were regarded rather as abstract speculations than as an actual basis for action.

'That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth.

'In view of these facts, we are certainly warranted in saying that when the legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women.'

The court having thus denied the application, Mrs. Brad-well brought the case here as within the twenty-fifth section of the Judiciary Act, or the recent act of February 5th, 1867, amendatory thereto; the exact language of which may be seen in the Appendix.

Mr. Matthew Hale Carpenter, for the plaintiff in error:

The question does not involve the right of a female to vote. It presents a narrow matter:

Can a female citizen, duly qualified in respect of age, character, and learning, claim, under the fourteenth amendment, the privilege of earning a livelihood by practicing at the bar of a judicial court?

The original Constitution said:

'The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.'

Under this provision each State could determine for itself what the privileges and immunities of its citizens should be. A citizen emigrating from one State to another carried with him, not the privileges and immunities he enjoyed in his native State, but was entitled, in the State of his adoption, to such privileges and immunities as were enjoyed by the class of citizens to which he belonged by the laws of such adopted State.

But the fourteenth amendment executes itself in every State of the Union. Whatever are the privileges and immunities of a citizen in the State of New York, such citizen, emigrating, carries them with him into any other State of the Union. It utters the will of the United States in every State, and silences every State constitution, usage, or law which conflicts with it. If to be admitted to the bar, on attaining the age and learning required by law, be one of the privileges of a white citizen in the State of New York, it is equally the privilege of a colored citizen in that State; and if in that State, then in any State. If no State may 'make or enforce any law' to abridge the privileges of a citizen, it must follow that the privileges of all citizens are the same.

Does admission to the bar belong to that class of privileges which a State may not abridge, or that class of political rights as to which a State may discriminate between its citizens?

It is evident that there are certain 'privileges and immunities' which belong to a citizen of the United States as such; otherwise it would be nonsense for the fourteenth amendment to prohibit a State from abridging them. I concede that the right to vote is not one of those privileges. And the question recurs whether admission to the bar, the proper qualification being possessed, is one of the privileges which a State may not deny.

In Cummings v. Missouri, this court say:

'The theory upon which our political institutions rest is, that all men have certain inalienable rights-that among these are life, liberty, and the pursuit of happiness; and that in the pursuit of happiness all avocations, all honors, all positions, are alike open to every one, and that in the protection of these rights all are equal before the law. Any deprivation or suspension of any of these rights for past conduct is punishment, and can be in no otherwise defined.'

In Ex parte Garland, this court say:

'The profession of an attorney and counsellor is not like an office created by an act of Congress, which depends for its continuance, its powers, and its emoluments upon the will of its creator, and the possession of which may be burdened with any conditions not prohibited by the Constitution. Attorneys and counsellors are not officers of the United States; they are not elected or appointed in the manner prescribed by the Constitution for the election and appointment of such officers. They are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character.. . . The order of admission is the judgment of the court, that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct, ascertained and declared by the judgment of the court, after opportunity to be heard has been offered.'

It is now settled by numerous cases, that the courts in admitting attorneys to, and in expelling them from, the bar, act judicially, and that such proceedings are subject to review on writ of error or appeal, as the case may be.

From these cases the conclusion is irresistible, that the profession of the law, like the clerical profession and that of medicine, is an avocation open to every citizen of the United States. And while the legislature may prescribe qualifications for entering upon this pursuit, they cannot, under the guise of fixing qualifications, exclude a class of citizens from admission to the bar. The legislature may say at what age candidates shall be admitted; may elevate or depress the standard of learning required. But a qualification, to which a whole class of citizens never can attain, is not a regulation of admission to the bar, but is, as to such citizens, a prohibition. For instance, a State legislature could not, in enumerating the qualifications, require the candidate to be a white citizen. This would be the exclusion of all colored citizens, without regard to age, character, or learning. Yet no sound mind can draw a distinction between such an act and a custom, usage, or law of a State, which denies this privilege to all female citizens, without regard to age, character, or learning. If the legislature may, under pretence of fixing qualifications, declare that no female citizen shall be permitted to practice law, it may as well declare that no colored citizen shall practice law; for the only provision in the Constitution of the United States which secures to colored male citizens the privilege of admission to the bar, or the pursuit of the other ordinary avocations of life, is the provision that 'no State shall make or enforce any law which shall abridge the privileges or immunities of a citizen.' And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female.

Now, Mrs. Bradwell is a citizen of the United States, and of the State of Illinois, residing therein; she has been judicially ascertained to be of full age, and to possess the requisite character and learning.

Still admission to the bar was denied her, not upon the ground that she was not a citizen; not for want of age or qualifications; not because the profession of the law is not one of those avocations which are open to every American citizen as matter of right, upon complying with the reasonable regulations prescribed by the legislature; but first upon the ground that inconvenience would result from permitting her to enjoy her legal rights in this, to wit, that her clients might have difficulty in enforcing the contracts they might make with her, as their attorney, because of her being a married woman; and, finally, on the ground of her sex, merely.

Now, the argument ab inconvenienti, which might have been urged with whatever force belongs to it, against adopting the fourteenth amendment in the full scope of its language, is futile to resist its full and proper operation, now that it has been adopted. But that objection is really without force; for Mrs. Bradwell, admitted to the bar, becomes an officer of the court, subject to its summary jurisdiction. Any malpractice or unprofessional conduct towards her client would be punishable by fine, imprisonment, or expulsion from the bar, or by all three. Her clients would, therefore, not be compelled to resort to actions at law against her. The objection arising from her coverture was in fact abandoned, in its more full consideration of the case, by the court itself; and the refusal put upon the fact that the statute of Illinois, interpreted by the light of early days, could not have contemplated the admission of any woman, though unmarried, to the bar. But whatever the statute of Illinois meant, I maintain that the fourteenth amendment opens to every citizen of the United States, male or female, black or white, married or single, the honorable professions as well as the servile employments of life; and that no citizen can be excluded from any one of them. Intelligence, integrity, and honor are the only qualifications that can be prescribed as conditions precedent to an entry upon any honorable pursuit or profitable avocation, and all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters, and our daughters. The inequalities of sex will undoubtedly have their influence, and be considered by every client desiring to employ counsel.

There may be cases in which a client's rights can only be rescued by an exercise of the rough qualities possessed by men. There are many causes in which the silver voice of woman would accomplish more than the severity and sternness of man could achieve. Of a bar composed of men and women of equal integrity and learning, women might be more or less frequently retained, as the taste or judgment of clients might dictate. But the broad shield of the Constitution is over them all, and protects each in that measure of success which his or her individual merits may secure.

No opposing counsel.

Mr. Justice MILLER delivered the opinion of the court.

title: Bradwell v. The State


text: Talk:Bradwell v. The State

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

title: Talk:Bradwell v. The State


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Bradwell v. The State/Opinion of the Court

The record in this case is not very perfect, but it may be fairly taken that the plaintiff asserted her right to a license on the grounds, among others, that she was a citizen of the United States, and that having been a citizen of Vermont at one time, she was, in the State of Illinois, entitled to any right granted to citizens of the latter State.

The court having overruled these claims of right founded on the clauses of the Federal Constitution before referred to, those propositions may be considered as properly before this court.

As regards the provision of the Constitution that citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States, the plaintiff in her affidavit has stated very clearly a case to which it is inapplicable.

The protection designed by that clause, as has been repeatedly held, has no application to a citizen of the State whose laws are complained of. If the plaintiff was a citizen of the State of Illinois, that provision of the Constitution gave her no protection against its courts or its legislation.

The plaintiff seems to have seen this difficulty, and attempts to avoid it by stating that she was born in Vermont.

While she remained in Vermont that circumstance made her a citizen of that State. But she states, at the same time, that she is a citizen of the United States, and that she is now, and has been for many years past, a resident of Chicago, in the State of Illinois.

The fourteenth amendment declares that citizens of the United States are citizens of the State within which they reside; therefore the plaintiff was, at the time of making her application, a citizen of the United States and a citizen of the State of Illinois.

We do not here mean to say that there may not be a temporary residence in one State, with intent to return to another, which will not create citizenship in the former. But the plaintiff states nothing to take her case out of the definition of citizenship of a State as defined by the first section of the fourteenth amendment.

In regard to that amendment counsel for the plaintiff in this court truly says that there are certain privileges and immunities which belong to a citizen of the United States as such; otherwise it would be nonsense for the fourteenth amendment to prohibit a State from abridging them, and he proceeds to argue that admission to the bar of a State of a person who possesses the requisite learning and character is one of those which a State may not deny.

In this latter proposition we are not able to concur with counsel. We agree with him that there are privileges and immunities belonging to citizens of the United States, in that relation and character, and that it is these and these alone which a State is forbidden to abridge. But the right to admission to practice in the courts of a State is not one of them. This right in no sense depends on citizenship of the United States. It has not, as far as we know, ever been made in any State, or in any case, to depend on citizenship at all. Certainly many prominent and distinguished lawyers have been admitted to practice, both in the State and Federal courts, who were not citizens of the United States or of any State. But, on whatever basis this right may be placed, so far as it can have any relation to citizenship at all, it would seem that, as to the courts of a State, it would relate to citizenship of the State, and as to Federal courts, it would relate to citizenship of the United States.

The opinion just delivered in the Slaughter-House Cases renders elaborate argument in the present case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred for its protection to the Federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license.

It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say they are conclusive of the present case.

JUDGMENT AFFIRMED.

The CHIEF JUSTICE dissented from the judgment of the court, and from all the opinions.


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Mahan v. United States (83 U.S. 143)

APPEAL from the Court of Claims; the case as found by that court, from the evidence, being thus:

One Mitchell, of Mississippi, being indebted to his stepdaughter, of whose estate he had been the guardian, mortgaged, with his wife (the mother of the step-daughter mentioned), a life estate which the wife had in a valuable cotton farm in Mississippi, near the river of that name; and soon afterwards died. Mrs. Mitchell, his widow, became administratrix of his estate. In 1861 the rebellion broke out. There were at this time one hundred and sixteen bales of cotton on the farm; and the war being flagrant in Mississippi, the Confederate general ordered all cotton near the river, under penalty of being burnt, to be removed from it, in order to prevent its capture by the forces of the United States.

In compliance with this order, Mrs. Mitchell removed the cotton to Kingston, near Natchez, where it was stacked and covered. 'After the cotton had been thus removed to Kingston, but before the capture of Natchez by the United States forces, and before the passage of the Abandoned and Captured Property Act, a parol agreement was made between Mrs. Mitchell and her daughter, now like herself a widow, to the effect that the latter should take the cotton as a payment upon the mortgage before described. The price was fixed at twenty cents per pound, but the number of pounds was not definitely ascertained, neither was any payment indorsed upon the mortgage, nor any receipt given, nor any memorandum in writing made, nor any present consideration paid. Neither did any change of possession take place, nor was there any delivery, actual or symbolic. The cotton remained at Kingston until its seizure by the military forces of the United States, immediately upon which the daughter asserted that she was the owner, and sought to procure its release.'

Not succeeding in this, and the cotton being sold, and the Captured and Abandoned Property Act being passed, which allowed loyal owners of property captured in the South and so disposed of, to apply to the Court of Claims for the proceeds, the daughter (now re-married to one Mahan) filed with her husband a petition in the court just named, to have the money which, on sale of it, the cotton had brought. The Court of Claims said:

'The party relies upon a purchase and sale at which, so far as the evidence shows, she paid no money, relinquished no rights, released no debt, assumed no responsibility, and acquired no possession. The intent of the parties was not evidenced by the payment of the purchase-money, nor by the ascertainment of the price, nor by a receipt upon the mortgage, nor by a written memorandum between the parties, nor by any formal or decisive declaration before witnesses, nor by the delivery of the thing sold. The facts do not, in law, establish a sale and delivery, and the evidence to prove the ownership of the captured property fails.'

The court accordingly dismissed the petition, and from that dismissal this appeal came.

Mr. R. M. Corwine, for the appellant:

I confess myself embarrassed at the very outset in the discussion of the ownership of the cotton when captured. The testimony is clear and direct, even as stated by the court below in its findings, and free from any doubt. And yet that court find that what was done did not amount to such a sale as would pass the title. [The counsel then went into an examination of the findings.]

But on the case as found it cannot be doubted that, as between the mother and daughter, there was a good contract of sale. The price was fixed, the number of bales (116) ascertained, and the precise location of the cotton understood between the parties. It was that particular lot of cotton which was stored at Kingston, and distinctly marked and piled up there. This was enough to authorize the daughter to take possession and control the cotton as against the mother; and, if possession had been refused, she could have filed her bill to compel a specific performance. But the parties went a step further. It was agreed that the cotton should be taken as part payment on the mortgage. Thus a price was fixed, and the mode of payment satisfactory to the parties provided. Undoubtedly the minds of the parties met; the mother could have compelled the daughter to take the cotton and give the credit as stipulated.

Neither at common law nor by the statute of frauds of England or Mississippi, was it necessary that the evidence of sale should be in writing. Story, in commenting on the English statute, states the rule with respect to agreements for the sale of personal property to be, that where it is to be performed within one year it need not be in writing. The statute of Mississippi (Howard and Hutchinson's Compilation of Mississippi Laws, p. 370, § 1) re-enacts the English statute, and, in so far as the sale of personal property is concerned, where the agreement is to be performed within one year, the language is the same and so is the law.

But if this transaction is held not to be such a sale as passed the title absolutely to Mrs. Mahan, it must be held to be a gift inter vivos. The learned Dr. Bouvier in his Law Dictionary states the rule to be, that such a gift, when completed by delivery, passes the title to the thing, so that it cannot be recovered back by the giver; and such is no doubt the rule.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: Mahan v. United States (83 U.S. 143)


text: Talk:Mahan v. United States (83 U.S. 143)


text:
Mahan v. United States (83 U.S. 143)/Opinion of the Court

The sole question in the case is, whether the appellant was the owner of the cotton at the time of its seizure by the agents of the United States, and this must be decided as a matter of law on the finding of facts made by the Court of Claims, notwithstanding the frequent reference by the counsel of the appellant to the view which he takes of the evidence given in that court.

It is strongly urged by the counsel that, by the common law, the facts as found by the court, constituted a valid sale of the property, and that, as there was no statute of frauds in force in the State of Mississippi requiring delivery or a written memorandum to make a sale of personal property valid, the parol agreement set out in this finding constituted a valid sale. Whether this would be so in the absence of such a statute as most of the States have on that subject, might admit of serious debate.

But, while there is no such provision in the authorized publication of the statutes of Mississippi of 1840 by Howard and Hutchinson, to which we have been referred, we find in the Revised Code of Mississippi of 1857, which, from our own researches, we are bound to believe was the law in force when this agreement was made, a very stringent provision on this subject in the statute of frauds and perjuries of that code.

Article four of chapter forty-four enacts that no contract for the sale of any slaves, personal property, goods, wares, and merchandise for the price of fifty dollars or upwards shall be allowed to be good and valid, except the buyer shall receive the slaves, or part of the personal property, goods, wares, and merchandise, or shall actually pay or secure the purchase-money, or part thereof, or unless some note or memorandum in writing of the bargain be made and signed by the party to be charged by such contract or his agent thereunto lawfully authorized.

The finding of the Court of Claims negatives in the most express terms the existence in the agreement, by which the title of the cotton was supposed to be transferred, of each and every one of the acts or conditions, some one of which is by that statute made necessary to the validity of the contract.

To hold that an agreement which that statute declares shall not be allowed to be good and valid was sufficient to transfer the title of the property to the claimant, would be to overrule the uniform construction of this or a similar clause in all statutes of frauds by all the courts which have construed them.

The Court of Claims held that the agreement passed no title, and we concur in their conclusion on that subject.

It is unnecessary to examine into the effect of the transaction as a gift inter vivos. The finding that there was no delivery would be as fatal to such a gift as to the agreement of sale. Besides there is nothing in the petition of the plaintiff, or in the findings of the Court of Claims, on which such a gift could be considered as in the issue. The finding that it was a parol contract of sale is directly opposed to the idea of a gift.

DECREE AFFIRMED.


text: Talk:Mahan v. United States (83 U.S. 143)/Opinion of the Court


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Carlisle v. United States

THIS was an appeal from the Court of Claims. The claimants there were subjects of the Queen of Great Britain, but had been residents within the United States prior to the war of the rebellion, and during its continuance. In 1864 they were the owners of sixty-five bales of cotton stored on a plantation in Alabama. This cotton was seized during that year by naval officers of the United States and turned over to an agent of the Treasury Department, by whom the cotton was sold and the proceeds paid into the treasury. The present action was brought in the Court of Claims under the act of Congress of March 12th, 1863, known as the Captured and Abandoned Property Act, to recover these proceeds.

The court found that the claimants were the owners of the cotton, and that it was seized and sold as stated, and that the net proceeds, amounting to $43,232, were paid into the treasury.

The court also found that the government of Great Britain accords to citizens of the United States the right to prosecute claims against that government in its own courts; but that the claimants were engaged, in 1862, in manufacturing saltpetre in Alabama, and selling that article to the Confederate States, and that they thus gave aid and comfort to the rebellion, and for that reason were not entitled to recover the proceeds of the cotton seized. Their petition was accordingly dismissed. The facts connected with the manufacture and sale of the saltpetre are thus stated by the court in its findings:

'From having, in 1860 and 1861, been engaged in the business of railroad contractors, they began in December, 1861, the manufacture of saltpetre at Santa Cave, Alabama, and continued engaged therein until the following April, when, owing to the presence of United States troops in the vicinity, they left the cave, and remained absent therefrom until the following October, when, immediately after the evacuation of Huntsville, Alabama, by the United States forces, they resumed work in making saltpetre at said cave, and continued it about two months. Their right to make saltpetre there was under a contract of lease between the owners of the cave and other parties, which had been transferred to the claimants, by whom it was, in May, 1863, sold and transferred to the so-called 'Confederate States of America' for $34,600. On the 28th of March, 1862, the claimants sold to the said Confederate States of America 2480 lbs. of saltpetre, at 75 cents per pound, in all $1860, and received payment therefor at Richmond, Virginia, on the 27th of June, 1862, from a rebel captain of artillery; and on the 30th of November, 1862, they sold to the said 'Confederate States' 4209 lbs. of nitre, at 75 cents per pound, in all $3156.75, and in the bill of the same, which the claimants receipted, it was expressed that the said nitre was 'for manufacture of gunpowder;' and the amount of said bill was paid at Larkinsville, Alabama, on the 24th of December, 1862, by the rebel 'superintendent of nitre and mining district No. 9;' and the claimants hired to the said 'Confederate States' wagons to transport the said nitre from Santa Cave to Rome, Georgia.'

From the decree dismissing the petition the claimants appealed to this court.

Messrs. Carlisle and McPherson, for the appellants; Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: Carlisle v. United States


text: The Anarchists’ Case Before the Supreme Court of the United States


text: Talk:Carlisle v. United States

title: Talk:Carlisle v. United States


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

The circumstances attending the manufacture and sale of the saltpetre, as disclosed in the findings of the court, plainly show that the claimants knew that the saltpetre was to be used by the Confederates in the manufacture of gunpowder for the prosecution of the war of the rebellion, and there is little doubt that the sale was made in order to aid the Confederates in accomplishing their treasonable purposes. By thus furnishing materials for the prosecution of the war whilst they were domiciled in the country, knowing the uses to which the materials were to be applied, the claimants became participators in the treason of the Confederates equally as if they had been original conspirators with them. The Court of Claims, therefore, did not err in its conclusion that the act of the claimants in selling the saltpetre to the Confederates, under these circumstances, was an act of aid and comfort to the rebellion. We have already held in Hanauer v. Doane, and we repeat and reaffirm what we there said, that 'he who, being bound by his allegiance to a government, sells goods to the agent of an armed combination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is himself guilty of treason or a misprision thereof. He voluntarily aids the treason. He cannot be permitted to stand on the nice metaphysical distinction that, although he knows that the purchaser buys the goods for the purpose of aiding the rebellion, he does not sell them for that purpose. The consequences of his acts are too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his own voluntary act.'

But the aid and comfort thus given to the rebellion by the claimants did not justify a denial of their right to recover the proceeds of their property in the treasury of the United States after the proclamation of pardon and amnesty made by the President on the 25th of December, 1868, unless their character as aliens excludes them from the benefit of that proclamation, a question which we shall presently consider. Assuming that they are within the terms of the proclamation, the pardon and amnesty granted relieve them from the legal consequences of their participation in the rebellion, and from the necessity of proving that they had not thus participated, which otherwise would have been indispensable to a recovery. It is true, the pardon and amnesty do not and cannot alter the actual fact that aid and comfort were given by the claimants, but they forever close the eyes of the court to the perception of that fact as an element in its judgment, no rights of third parties having intervened.

There has been some difference of opinion among the members of the court as to cases covered by the pardon of the President, but there has been none as to the effect and operation of a pardon in cases where it applies. All have agreed that the pardon not merely releases the offender from the punishment prescribed for the offence, but that it obliterates in legal contemplation the offence itself.

When, therefore, in Padelford's case, a claimant under the Captured and Abandoned Property Act, who had given aid and comfort to the rebellion, appeared in the Court of Claims, asking for a restoration of the proceeds of his property, and showing that he had taken the oath prescribed by the proclamation of President Lincoln, of December 8th, 1863, and had since then kept the oath inviolate, and was thereby by force of the proclamation pardoned, this court held that after the pardon thus granted no offence connected with the rebellion could be imputed to him; that if in other respects he made the proof which under the act entitled him to a decree for the proceeds of his property, the law made the proof of pardon a complete substitute for proof that he had given no aid or comfort to the rebellion; and that a different construction would defeat the manifest intent of the proclamation and of the act of Congress which authorized it.

In Klein's case, which subsequently came before the court, an act of Congress designed to deny to the pardon of the President the effect and operation which the court had thus adjudged to it, and which declared that an acceptance of pardon without disclaimer should be conclusive evidence of the acts pardoned, and be inoperative as evidence of the rights conferred by it in the Court of Claims and in this court, was held to be unconstitutional and void.

In Mrs. Armstrong's case, which was here at the last term, the court declined to consider whether the evidence was sufficient to prove that the claimant had given aid and comfort to the rebellion, and held that the proclamation of pardon and amnesty issued by the President on the 25th of December, 1868, entitled her to the proceeds of her captured and abandoned property in the treasury, without proof that she never gave such aid and comfort; that the proclamation granting pardon unconditionally, and without reservation, was a public act of which all courts of the United States were bound to take notice, and to which all courts were bound to give effect.

In Pargoud's case, also here at the last term, the claimant stated in his petition that he was guilty of participating in the rebellion, but that he had been pardoned by the President, by special act, in January, 1866, and also by operation of the President's general proclamation. The Court of Claims decided against the claimant on the ground that his petition did not aver that he had not given any aid or comfort to the rebellion, and did not sufficiently aver a pardon by the President. This court reversed the judgment, following the decision in Mrs. Armstrong's case, and holding that the President's proclamation of December 25th, 1868, relieved claimants of captured and abandoned property from proof of adhesion to the United States during the civil war.

After these repeated adjudications, it must be regarded as settled in this court that the pardon of the President, whether granted by special letters or by general proclamation, relieves claimants of the proceeds of captured and abandoned property from the consequences of participation in the rebellion, and from the necessity of establishing their loyalty in order to prosecute their claims. This result follows whether we regard the pardon ad effacing the offence, blotting it out, in the language of the cases, as though it had never existed, or regard persons pardoned as necessarily excepted from the general language of the act, which requires claimants to make proof of their adhesion, during the rebellion, to the United States. It is not to be supposed that Congress intended by the general language of the act to encroach upon any of the prerogatives of the President, and especially that benign prerogative of merey which lies in the pardoning power. It is more reasonable to conclude that claimants restored to their rights of property, by the pardon of the President, were not in contemplation of Congress in passing the act, and were not intended to be embraced by the requirement in question. All general terms in statutes should be limited in their application, so as not to lead to injustice, oppression, or any unconstitutional operation, if that be possible. It will be presumed that exceptions were intended which would avoid results of that nature.

Such being the general effect of pardon and amnesty granted by the President, it only remains to consider whether the proclamation of December 25th, 1868, embraces the claimants who were aliens domiciled in the country, within its provisions. And upon this point we entertain no doubt. The claimants were residents in the United States prior to the commencement of the rebellion. They so allege in their petition; they were, therefore, bound to obey all the laws of the country, not immediately relating to citizenship, during their sojourn in it; and they were equally amenable with citizens for any infraction of those laws. 'The rights of sovereignty,' says Wildman, in his Institutes on International Law, 'extend to all persons and things not privileged that are within the territory. They extend to all strangers therein, not only to those who are naturalized and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory. All strangers are under the protection of the sovereign while they are within his territories, and owe a temporary allegiance in return for that protection.'

By allegiance is meant the obligation of fidelity and obedience which the individual owes to the government under which he lives, or to his sovereign in return for the protection he receives. It may be an absolute and permanent obligation, or it may be a qualified and temporary one. The citizen or subject owes an absolute and permanent allegiance to his government or sovereign, or at least until, by some open and distinct act, he renounces it and becomes a citizen or subject of another government or another sovereign. The alien, whilst domiciled in the country, owes a local and temporary allegiance, which continues during the period of his residence.

This obligation of temporary allegiance by an alien resident in a friendly country is everywhere recognized by publicists and statesmen. In the case of Thrasher, a citizen of the United States resident in Cuba, who complained of injuries suffered from the government of that island, Mr. Webster, then Secretary of State, made, in 1851, a report to the President in answer to a resolution of the House of Representatives, in which he said: 'Every foreigner born residing in a country owes to that country allegiance and obedience to its laws so long as he remains in it, as a duty upon him by the mere fact of his residence, and that temporary protection which he enjoys, and is as much bound to obey its laws as native subjects or citizens. This is the universal understanding in all civilized states, and nowhere a more established doctrine than in this country.' And again: 'Independently of a residence with intention to continue such residence; independently of any domiciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien or a stranger born, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be punished for treason or other crimes as a nativeborn subject might be, unless his case is varied by some treaty stipulation.'

The same doctrine is stated in Hale's Pleas of the Crown, East's Crown Law, and Foster's Discourse upon High Treason, all of which are treatises of approved merit.

Such being the established doctrine, the claimants here were amenable to the laws of the United States prescribing punishment for treason and for giving aid and comfort to the rebellion. They were, as domiciled aliens in the country prior to the rebellion, under the obligation of fidelity and obedience to the government of the United States. They subsequently took their lot with the insurgents, and would be subject like them to punishment under the laws they violated but for the proclamation of the President of December 25th, 1868. That proclamation, in its comprehensive terms, includes them and all others in like situation. It grants 'unconditionally, and without reservation, to all and to every person who, directly or indirectly, participated in the late insurrection or rebellion, a full pardon and amnesty for the offence of treason against the United States, or of adhering to their enemies during the late civil war, with restoration of all rights, privileges, and immunities under the Constitution and the laws which have been made in pursuance thereof.'

The act of Congress of July 27th, 1868, authorizes any alien to prosecute claims against the United States in the Court of Claims, where the government of which he is a citizen or subject accords to citizens of the United States the right to prosecute claims against such government in its courts. In O'Keefe's case it was held that, by the proceeding known as a 'petition of right,' the government of Great Britain accords to citizens of the United States the right to prosecute claims against that government in its courts, and therefore that British subjects, if otherwise entitled, may prosecute claims against the United States in the Court of Claims. There is, therefore, no impediment to the recovery by the claimants in this case of the net proceeds of their cotton paid into the treasury.

The judgment of the Court of Claims must, therefore, be REVERSED, and that court directed to enter judgment in favor of the claimants for the amount of such net proceeds; and it is

SO ORDERED.


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


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The Collector v. Doswell & Company

ERROR to the Circuit Court for the District of Louisiana.

The ninth section of the act of July 13th, 1866, to reduce internal taxation, and to amend the internal revenue laws, declares, among other things, that there shall be paid monthly on all sales by commercial brokers of any goods, wares, or merchandise, a tax of one-twentieth of one per cent. on the amount of said sales, and on or before the tenth day of each month every commercial broker shall make a list or return to the assessor of the district of the gross amount of such sales, as aforesaid, for the preceding month; provided, that, in estimating such sales of goods, wares, and merchandise, for the purpose of this section, any sales made by or through another broker, upon which a tax had been paid, shall not be estimated and included as sold by the broker for whom the sale was made.

Doswell & Co., cotton brokers of New Orleans, having paid a tax assessed against them under this statute, and made in vain an appeal to the commissioner of internal revenue to get back the money paid, brought this suit against the collector, to whom they had paid it.

On the trial an agreed statement of facts was submitted to the court, by which it appeared that the plaintiffs did not sell any cotton or other goods, but limited themselves to making purchases for those who required their services; that the money was paid by their principals directly to the parties who made the sales, and that their compensation for making the purchases was one-half of one per cent. paid by the buyer, and one-fourth of one per cent. by the seller, under a custom of the trade in New Orleans, established when cotton brokers were sellers as well as buyers, and kept up, though they were so no longer.

The case agreed on further showed that a tax on all the sales for which the plaintiffs were assessed, had been paid by the parties making the sales.

The court below gave judgment for the plaintiff, and the record of that judgment the government now brought here for review.

Mr. G. H. Williams, Attorney-General, and Mr. S. F. Phillips, Solicitor-General, for the collector, plaintiff in error, submitted the case on a statement of it, and without argument.

Mr. Frederick Chase, contra.

Mr. Justice MILLER delivered the opinion of the court.

title: The Collector v. Doswell & Company


text: Talk:The Collector v. Doswell & Company

title: Talk:The Collector v. Doswell & Company


text:
The Collector v. Doswell & Company/Opinion of the Court

That the plaintiffs did not make sales as commercial brokers is too clear for argument. They acted wholly as buyers and other parties as sellers. The per cent. paid them by the sellers under the usage does not change their relation to the transaction.

The section of the statute referred to provides for taxes in a great variety of sales by bankers, brokers, and others, of stocks, real estate, &c., but it is always a tax on sales, and always collected of the seller, or his broker or agent.

It is stated in the agreement of facts submitted that a tax on all the sales for which the plaintiffs were assessed had been paid by the parties making the sales. This clearly relieved the plaintiffs from any obligation to pay this tax, if it otherwise existed, under the proviso of the ninth section of the statute.

It is so very clear, upon applying the statute to the agreed statement of facts, that the transactions charged against the plaintiffs were not sales, and not taxable to them, that it cannot be made plainer by argument; and, while the law officers of the government have furnished a brief statement of the facts, they have neither cited the statute nor made an argument against the right of the plaintiffs to recover.

The judgment of the Circuit Court in their favor is therefore

AFFIRMED.


text: Talk:The Collector v. Doswell & Company/Opinion of the Court


text:
James v. Milwaukee

ERROR to the Circuit Court for the Eastern District of Wisconsin.

Mr. J. W. Cary, and O. H. Waldo (counsel in another but similar case), for the plaintiff in error; Mr. E. G. Ryan, contra.

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

title: James v. Milwaukee


text: Talk:James v. Milwaukee

title: Talk:James v. Milwaukee


text:
James v. Milwaukee/Opinion of the Court

This action was brought by the plaintiffs in error to recover the amount of certain overdue interest coupons attached to twelve bonds issued by the city of Milwaukee to the Milwaukee and Superior Railroad Company, and the amount of like coupons attached to a like bond issued by the city to the Milwaukee and Beloit Railroad Company.

The pleadings upon both sides are voluminous, but a short statement of the case will be sufficient for the purposes of this opinion.

The act of the legislature of Wisconsin of the 2d of April, 1853, authorized the city of Milwaukee to lend its credit to certain specified railroad companies, upon the terms and conditions prescribed. The act of the 12th of July, 1853, declared that the provisions of the preceding act 'are extended, and shall include the Milwaukee and Watertown Railroad Company, and any other railroad company duly incorporated and organized for the purpose of constructing railroads leading from the city of Milwaukee into the interior of the State, which, in the opinion of the common council, are entitled to aid from the city.' The act of the 31st of March, 1854, extended the original act 'to the South Wisconsin Railroad Company, or to any other railroad company duly incorporated and organized for the purpose of constructing railroads' to connect with 'any other railroad having its terminus in said city, which, in the opinion of the common council are entitled to aid from said city.' The act of March 18th, 1856, limited the amount of bonds to be issued to an aggregate of $2,000,000.

The Milwaukee and Superior Railroad Company was incorporated by an act approved March 4th, 1856, and the Milwaukee and Beloit Railroad Company by another act approved on the same day.

On the 11th of June, 1856, the common council passed an ordinance authorizing the issue of bonds to the first named company to an amount not exceeding $100,000, and on the same day another ordinance, authorizing the issue of like bonds, not exceeding the same amount, to the latter company. Both ordinances were approved and ratified by a popular vote in the manner prescribed by the statutes.

The bonds and coupons in question in this case were thereupon executed and delivered. They purport on their face to be issued in pursuance of the act of 'April 2d, 1853, and of the several acts amendatory thereto.'

Upon the trial in the Circuit Court the learned judge instructed the jury that the acts referred to had no application to railroad companies not in existence when they took effect, and that 'there was no authority for the city to issue these bonds, and they are void, and the plaintiffs cannot recover.' The plaintiffs in error excepted.

The only question which we have found it necessary to consider is the correctness of this ruling, and that depends upon the construction to be given to the language of the act of July 12th, 1853, whereby it is declared that the provisions of the prior act 'are extended and shall include' the railroad specially named, 'and any other railroad company duly incorporated and organized for the purpose of constructing railroads leading from the city of Milwaukee,' &c. The defendant in error insists that the power conferred was confined to companies already in existence at the date of the act, and such was the opinion of the court below. We entertain a different opinion.

In this inquiry the intention of the legislature is to be sought for. That, whatever it may be, constitutes the law. If it had been intended to limit the scope of the act to preexisting corporations, we cannot doubt that the term heretofore, or some equivalent phrase, would have been employed in the proper place. This would have made the effect of the act what is contended for by the defendant in error. If the word hereafter had been used, that would have produced the opposite result. In either case the effect of the term employed would have been exclusive. In the former, the act would have applied only to companies already existing, and, in the latter, only to those of later creation. The language is, 'any other railroad company duly incorporated and organized.' No tense is expressed and no particular time is indicated. There is nothing which limits and points its meaning any more to companies then, than to those thereafter, organized. It is applicable, and in all respects alike applicable, to both, and we think both were intended to be included.

This view of the subject derives support from the plain reason and object not only of this act, but of the entire series of acts upon the subject. They are all in pari materia, constitute a common context, and are to be regarded as if embraced in the same statute. The presence of railroads, and especially of their termini, are beneficial to cities by increasing their business and promoting their growth. Such works animate all the sources of local prosperity. In the case before us, doubtless quite as much was anticipated as could, under any circumstances, have been realized. The legislature intended to give the city the full benefit of this policy. Companies organized and those to be organized were alike important. The restrictions and safeguards provided are applicable to both. They are found in the required sanction of the common council, the approval of the voters, the limitation of the maximum of credit to be given to each company selected, and the limitation of the maximum of the aggregate of such credits. No reason can be imagined why one class should be embraced and the other excluded. There is no consideration, affirmative or negative, which does not apply alike to both. No discrimination is made in any of the acts, and both classes are within the language employed.

The construction practically given by the parties interested, as evinced by their conduct, is in harmony with the views we have expressed, and is not without weight. #fn-s-s

The common council deliberately passed the ordinances, the electors approved them, the mayor subscribed and issued the bonds, and the companies received them as valid. We do not learn that there was any doubt or dissent as to the question of legal authority until after both companies had become hopelessly bankrupt.

Our attention has been called to numerous parallelisms of language in other statutes of Wisconsin, where there is, as in this case, clearly a prospective meaning. Doubtless such analogies might be found in abundance elsewhere. But we deem it unnecessary to pursue the subject further.

JUDGMENT REVERSED, and the cause remanded with directions to proceed

IN CONFORMITY TO THIS OPINION.

title: James v. Milwaukee/Opinion of the Court


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Page:Dictionary of National Biography volume 59.djvu/38

 and at the same time he was made governor of the castles of Rochester and Canterbury (, i. 670; List of Sheriffs to 1831, p. 67). On 29 Jan. 1262 Walerand was elected one of a commission of six, of whom three were barons, to appoint sheriffs (Fœdera, i. 415). On 10 March he was made a member of the embassy appointed to negotiate peace with France (Royal Letters, ii. 138; cf. Flores Hist. ii. 423;, v. 741; Fœdera, i. 385, 386). Walerand with his colleagues laid their report before the magnates in London a little later (Flores Hist. ii. 428), and peace was finally made with Louis (Fœdera, i. 383, 389).

Walerand's diplomatic skill was rewarded. In 1261 he was made warden of the Forest of Dean (Excerpta e Rot. Fin. ii. 358). In 1262 Henry entrusted to him the castles of Dover, Marlborough, and Ludgershall (, Chron. et Ann., and, Opus Chronicorum, p. 9, in both of which he is called ‘Sir E. de Waleran;’ Flores Hist. ii. 468; Red Book of Exchequer, ii. 706). He also became warden of the Cinque ports (Royal Letters, Henry III, ii. 244). During the chancellorship of Walter de Merton [q. v.] in 1262, the great seal was put into the hands of Walerand and Imbert of Munster. In 1263, when Prince Edward committed his robbery of jewels and money upon the New Temple, Walerand was one of his chief helpers (‘Ann. Dunstaple’ in Ann. Mon. iii. 222).

In 1261 discord between Henry and the barons was renewed. Walerand, together with John Mansel and Peter of Savoy, were regarded as the three chief advisers of Henry (‘Ann. Osney’ in Ann. Mon. iv. 128). In 1263 the barons seized Walerand's lands. Henry restored them, save the castle of Kilpeck (, i. 670). Walerand had rendered himself so indispensable that in February 1263 the king excused himself from sending Walerand and Mansel to France, and despatched other envoys instead (Royal Letters, ii. 239; misdated in Fœdera, i. 394). When the barons went to war against Henry in 1264, Walerand exerted himself on the royalist side. After the battle of Lewes he and Warren of Bassingbourne still held Bristol Castle in the king's name. They marched to Wallingford, where Richard of Cornwall and Edward were confined, and vigorously attacked the castle in the hope of relieving them, but failed (, Chron. de Bello, Camden Soc. p. 40). After Evesham he was rewarded by large grants (, i. 670), including most of the lands of Hugh de Neville (Liber de Antiquis Legibus, pp. lxvi, lxvii). Walerand pronounced the sentence of disinheritance against all who had taken up arms against the king at Evesham (‘Ann. Worcester’ in Ann. Mon. iv. 455). He and Roger Leybourne induced the Londoners to pay a fine of twenty thousand marks to the king for their transgressions (Liber de Antiquis Legibus, pp. 78, 80, 81). In 1266 Walerand was one of the original six who by the dictum of Kenilworth were elected to settle the government (‘Ann. Waverley’ and ‘Ann. Dunstaple’ in Ann. Mon. ii. 372, iii. 243; Flores Hist. iii. 12).

Walerand now devoted himself to affairs in Wales. Owning much land in and near the Welsh marches, he had necessarily been frequently employed in the Welsh wars, and was constantly consulted as to the treatment of the Welsh (Royal Letters, Henry III, ii. 219, 2 Oct. 1262; Fœdera, i. 339, 340). On 21 Feb. 1267 a commission was issued, empowering him to make a truce for three years with Llywelyn ap Gruffydd, and with Edmund, the king's son, to make peace (Fœdera, i. 472, 473, 474). He now resumed his work as judge, and from April 1268 till August 1271 we find many records of assizes to be held before him (Excerpta e Rot. Fin. ii. 441, 468–546; Abbreviatio Placitorum, pp. 181, 182). When Edward went to the Holy Land he placed, on 2 Aug. 1270, the guardianship of his lands in the hands of four, of whom Walerand was one (Fœdera, i. 487). He died in 1273, before the king's return (Ann. Mon. iv. 254).

The chronicler describes Walerand as ‘vir strenuus.’ He had throughout his career been hated as a royal favourite, though respected for his ability and strength. A curious political poem from Cottonian MS. Otho D, viii., quoted in the notes to Rishanger's ‘Chronicon de Bello’ (Camden Society, p. 145), thus refers to him: Exhæredati proceres sunt rege jubente Et male tractati Waleran R. dicta ferente. Walerand married in 1257 Matilda (d. 1306–7), the eldest daughter and heiress of Ralph Russell, but left no issue (, i. 670; cf. Cal. Geneal. p. 194). His nephew and heir, Robert, was an idiot, and never received livery of his lands, some of which passed to his sister's son, Alan Plugenet.

Robert Walerand, the subject of this article, must be distinguished from Waleran Teutonicus, custodian of Berkhamstead in 1241, to whom Henry gave the custody of several Welsh castles.

[Calendarium Inquisitionum post mortem, vol. i.; Calendarium Genealogicum; Rymer's Fœdera, vol. i.; Abbreviatio Placitorum; Ex-


text: Talk:James v. Milwaukee/Opinion of the Court


text:
Garnharts v. United States

ERROR to the District Court for the Middle District of Alabama; in which court, on an information against certain distilled spirits seized on land, and answer and claim, the court, on motion of the district attorney of the United States, ordered the claim and answer to be stricken from the files; and refusing to let the claimants either amend the old answer or file a new one, entered a decree condemning the property seized.

To this action of the court the claimants excepted, and brought the question of its propriety here.

Messrs. J. W. Noble and N. P. Chipman, for the claimant, plaintiffs in error; Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice CLIFFORD stated the case more fully, and delivered the opinion of the court.

title: Garnharts v. United States


text: Talk:Garnharts v. United States

title: Talk:Garnharts v. United States


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

Distilled spirits, found elsewhere than in a distillery or distillery warehouse, not having been removed therefrom according to law, are declared to be forfeited to the United States by the thirty-sixth section of the act of the twentieth of July, 1868, imposing taxes on distilled spirits.

Ninety-six casks of distilled spirits, duly assessed under that act, were, on the twenty-fourth of May, 1869, seized on land, at Montgomery, in the Middle District of Alabama, as subject to forfeiture, the taxes imposed not having been paid, and the casks with their contents having been found elsewhere than in a distillery or distillery warehouse. Seizure was made by the deputy collector, and he delivered the casks as seized to the marshal. Subsequently, to wit, on the tenth of June in the same year, the district attorney filed an information against the property seized, praying process against the property, and that the same might be condemned as forfeited, which information sets forth the following causes of forfeiture: (1.) That the spirits were found at the place aforesaid in the control of J. H. Garnhart & Co., holding the spirits with intent to sell the same in fraud of the internal revenue laws; that when found they were not in any distillery or distillery warehouse, or in transit to any bonded warehouse, or intended for transportation. (2.) That the spirits had been removed from some distillery or distillery warehouse without a permit and without paying or securing the payment of the tax imposed thereon, or giving bond for the removal thereof to any bonded warehouse, and without having been inspected, bonded, gauged, or stamped as required by law. (3.) That the casks containing the spirits were not stamped, marked, or branded as required by law. Process was requested, and it is not denied that it was issued and served, and the persons in whose possession the spirits were found appeared on the twenty-sixth of June next after the seizure and filed their claim to the property, in which they allege that they are the true and bon a fide owners of the ninety-six casks of distilled spirits, and it appears that they gave security for costs as required in such proceedings. Nothing further appears to have been done in the cause until the twenty-fifth of May, in the succeeding year, when the claimants appeared and filed an answer, in which they allege as follows: (1.) That they are the true and bon a fide owners of the property in controversy. (2.) That they admit that the spirits were seized as set forth in the information. (3.) That the charges and allegations contained in each of the first three paragraphs of the information, are untrue. (4.) That the claimants never had any intention to defraud the United States, that the spirits were duly and legally stamped, and that the tax was paid as required by law.

Discrepancies are noticed in the record as to dates, arising doubtless from the fact that a second claim was filed, called in the transcript the claim and answer, but enough appears to enable the court to understand the proceedings and to show that the judgment should be reversed, as it is stated in the bill of exceptions that issue was joined upon the answer, and that sundry depositions had been taken and were on file in court.

Where the seizure is made on land, the claimant is entitled to a trial by jury, if he appears and files an answer denying the facts set forth in the information. They, the claimants, did appear in this case, and the answer which they filed denies every material fact in the information set forth as a cause of forfeiture, and the bill of exceptions states that an issue had been joined upon that pleading. Repeated decisions of this court have established the rule that where the seizure is made on navigable waters, the case belongs to the instance side of the subordinate court, but where the seizure is made on land, the suit is one at common law, and the claimants are entitled to a trial by jury. Beyond all question the claimants were entitled to a trial by jury, but the court, instead of granting them that right, entered an order, on motion of the district attorney, striking out the claim and answer; and having refused to allow the claimants to amend their answer or to file a new one, entered a decree condemning the property seized, and the claimants excepted. Much discussion of the error assigned is unnecessary, as it is clearly a good cause to reverse the judgment, as determined by this court in two cases where the question was fully considered. The cases of Hozey v. Buchanan, and Mandelbaum v. The People, both decide that it is error to strike out an answer filed by the defendant, which constitutes a good defence, and on which he relied as a defence to the charge made against him by the complaining party.

Suggestion is made that it does not appear upon what ground the order was made, which is all the worse for the prevailing party, as such an order can never be justified unless it was made for good cause appearing in the record. Where the record shows that the answer of the respondent was stricken out by the court, in a case in which the respondent was entitled to a trial by jury, and judgment was rendered against him as upon default, the court will not presume that the order was passed for good cause, unless enough is shown in the record to warrant such a conclusion.

JUDGMENT REVERSED, and the cause remanded with directions to permit the claimants to answer, and to award

A VENIRE.


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


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Hanrick v. Barton

ERROR to the Circuit Court for the Western District of Texas.

Edward Hanrick, a citizen of Alabama, in December, 1860, brought two actions of trespass to try title, in the nature of actions of ejectment, in the District Court of the United States for the Western District of Texas, for the recovery of eleven leagues of land in Falls County, in that State, alleged to have been granted by the proper officers of the State of Coahuila and Texas to one Atanacio de la Serda, and claimed by the plaintiff as owner in fee. The original plaintiff having died, the present plaintiff was admitted to prosecute the action as his administrator and only heir.

The defendants pleaded:

1st. The general issue;

2d. Title under one Thomas J. Chambers; and

3d. The statutes of limitation of three and ten years.

A jury being waived, the two causes were consolidated and tried by the court as one cause, in July, 1870, and the court found and decided that the plaintiff had failed to make out legal title to the land in controversy in Edward Hanrick, and gave judgment for the defendants, without passing upon the issues raised on the statutes of limitation. The case was brought here by the plaintiff upon certain bills of exception taken during the trial of the cause, showing rulings of the court adverse to the plaintiff, which were material to the result, and which, he alleged, were erroneous.

Mr. Conway Robinson, with whom was Mr. W. G. Hale, for the plaintiff in error; Mr. G. F. More, contra.

Mr. Justice BRADLEY stated the case in its different parts, as it arose on the exceptions, in their order, and delivered the opinion of the court.

title: Hanrick v. Barton


text: Talk:Hanrick v. Barton

title: Talk:Hanrick v. Barton


text:
Hanrick v. Barton/Opinion of the Court

The first and second bills relate to certain rulings upon replications proffered by the plaintiff to the pleas of the statute of limitations. As these became immaterial from the final view which the court below took of the case, which relieved the defendants from relying on the statutes of limitation, we will consider the other bills.

The plaintiff produced in evidence a properly certified and translated copy from the General Land Office of the following title-papers, on which he relied for showing a grant of the land in controversy to Atanacio de la Serda.

1st. A petition by La Serda, described as a native and resident of Nacogdoches, to the governor, dated October 29th, 1830, praying for a grant of eleven leagues of land in the department.

2d. A grant by Governor Letona to La Serda, dated at Leona Vicario, March 11th, 1831, for eleven leagues of vacant land of the State, subject to the usual conditions of colonization then in force.

3d. A blank unsigned application to the alcalde of Austin, dated Austin, _____, 1833, purporting to be made by Matthew R. Williams, attorney in fact of Atanacio de la Serda, stating the grant made to him, and praying that title of possession of the same might be made for eleven leagues of land on the left bank of the river Brazos, within the colony of Austin and Williams.

4th. An order of Lesassier, alcalde of Austin, dated October, 1833, referring the application to Austin and Williams for their approval, and if they approved it, referring it to the principal surveyor, to survey the land.

5th. Consent of Austin and Williams, dated _____, 1833.

6th. Survey by F. W. Johnson of the eleven leagues in controversy for the attorney in fact of Atanacio de la Serda; the survey being addressed to the alcalde.

7th. A grant or title of possession, purporting to be made by Luke Lesassier, alcalde of Austin, acting as a commissioner under authority of the government, by which (as the grant recites) in consideration of the sale made to Atanacio de la Serda (referring to the particulars of the same), exhibited by the citizen Matthew R. Williams, attorney in fact of said La Serda, he, Lesassier, declared as follows, to wit:

'I grant to and put the aforesaid attorney in fact of citizen Atanacio de la Serda into real, actual, corporal, and virtual possession of eleven leagues of land, the same which he prayed for and which the government sold him, situate on the left margin of the river Brazos, &c.'

Describing the eleven leagues in controversy; and after specifying the terms and conditions to be complied with, concluding thus: 'Therefore, by virtue of the authority in me vested by the before-mentioned decree, &c., I issue this present title, and do ordain that an authentic copy thereof be taken and delivered to the party interested, for the purpose that he may own, use, and enjoy the land which has been sold to him, for himself, for his children, his heirs, or successors, &c.'

The plaintiff then offered in evidence a deed, dated the 8th day of July, 1838, which, it is conceded, was sufficiently authenticated, and by which the said Matthew R. Williams, as attorney in fact of La Serda (but in his own name as such attorney), conveyed or attempted to convey the land in question to Asa Hoxey and R. M. Williamson, from whom the plaintiff deduced title to himself. To the admission of this deed in evidence the defendants objected, and it was excluded by the court, which ruling constitutes the ground of the first part of the third bill of exceptions.

The principal objections urged against this deed were, first, that the plaintiff had not shown any valid and legal authority from La Serda to Williams to sell and convey the land; secondly, that the deed was not a valid execution of the power, if such a power existed. Other objections were assigned, from which it appears that the defendants had contended that the title of possession was a grant to Williams, the alleged attorney, and not to La Serda, but that the court had overruled the objection, and had held that it was a grant to La Serda. If the grant enured to Williams he would have needed no power from La Serda to make the deed in question; but if it enured to La Serda, of course such a power was necessary. It is essential, therefore, to determine the effect of the title of possession issued by the alcalde, Lesassier.

This grant, if judged by common-law methods of assurance, is not expressed in the most apt terms. At first blush it seems to convey the land to the attorney in fact of La Serda, and not to La Serda himself. But it seems to be in the usual form used in such cases. In construing Mexican titles in Texas much greater stress seems to be laid on the original grant made by the governor than is laid by us on the ordinary land-warrant in government titles. In the land system of the United States the final patent is the all-controlling document as to the legal title. But in Texas titles the final 'extension of title,' as it is called, which is usually issued by a local commissioner appointed for that purpose (in this case the alcalde of Austin), is regarded more as a certificate of location, issued for the purpose of designating the particular land on which the original grant is to take effect than as an independent grant. In Clay v. Holbert, the court, speaking of a title very similar to that under consideration, says: 'It is believed that, this being a sale of land, not made by the commissioner, but by the executive, so far as the right of the purchaser is concerned, the commissioner's duty did not begin until after the right had been acquired by purchase from the State; and it relates then mainly to the reference to a surveyor, approval of the survey, and putting the purchaser in possession; and his [the commissioner's] title was only evidence of the right acquired by the purchaser, and did not give or convey the right, because the right had accrued by the act of the State executive.' It is true, the title of possession is necessary to render the original title perfect; for until it issues the original grant does not attach itself to any specific land. But when it is issued the original title is said to be extended upon the particular land designated.

When, therefore, a grant from the governor to La Serda is produced, together with a survey made at the instance of a person who assumes to act as his attorney in fact; and a title of possession is then shown, professing to put the attorney in fact, as such, in possession of the land surveyed, and declaring that said title was issued in order that the party interested might own and enjoy the land which had been sold to him, for himself, his children, his heirs and successors or assigns, such title must be deemed to be issued for the benefit of, and to enure to, the original grantee. Its legal effect must be to perfect title in him. And in so holding, we think that the court below was right. We do not mean to say that the original grantee, if not prohibited by law, might not have assigned his inchoate title to a third person; nor that the title might not, by a grant in proper form, have been perfected in such assignee; but we think that the legal effect of the extension of title in this case, by the document offered in evidence, was to perfect La Serda's title, and not to vest title in Williams.

This conclusion renders it necessary that Williams should have had a power of attorney from La Serda, in order that a deed executed by him should have any efficacy in transferring the title to another. But no such power was among the papers previously offered in evidence, at least so far as appears by the bill of exceptions now under consideration.

But there was attached to the deed offered in evidence, and offered with it, a document, consisting of a copy of the original title-papers in Spanish, accompanied with an English translation, duly certified by the translator and the Commissioner of the General Land Office to be a true and correct translation from the original Spanish title-papers in said office. The papers thus certified were the title-papers previously given in evidence, and two other documents in addition thereto, namely: first, a power of attorney from La Serda to one J. S. Roberts, dated July 20th, 1832, authorizing Roberts to obtain possession and title of the eleven leagues granted to La Serda, as before stated, and to sell and convey the same, and to appoint one or more substitutes in his place; secondly, the other additional document was an act executed by J. S. Roberts, and dated December 10th, 1832, whereby he substituted Matthew R. Williams in his place as attorney of La Serda.

It is apparent that if this power of attorney and act of substitution were properly authenticated, they gave Williams full power to sell and convey, as well as acquire possession. The counsel of the defendants contends that they were not properly authenticated; that they were private documents and no part of the original title; and, therefore, did not properly belong to the archives of the Land Office, but to the officer before whom, or clerk of the county in which they were executed (in this case Nacogdoches), and therefore that the certificate of the General Land Office could not give authenticity to the copies. His proposition is, 'that copies of papers in the Land Office are not evidence unless said papers properly form a part of the said archives of said office.' This general proposition is undoubtedly correct. Private deeds, conveyances, or mortgages executed before a notary between citizens, and having only a private effect and operation, could not be regarded as belonging to the public archives, but the originals or protocols would be preserved by the notary, or officer acting as such, or turned over to the county clerk having custody of the county records. But the set of documents which make up the original title-papers of any tract of land, from the original petition of the grantee to the final extension of title (usually called in Mexico the 'espediente'), do belong to the public archives. They either have to pass under the examination and approval of the different officials concerned in granting out the public lands as the basis of their acts, or they are the very acts themselves of those officials, constituting the preliminary and final acts of title, demonstrating for all future time the alienation of a specific portion of the public domain. Now, although some of these documents may contain private stipulations between the parties concerned, yet their proper place of custody is the General Land Office, and not private or local offices; and, if they belong to the archives, certified copies of them are evidence. The original act of 1836 establishing the General Land Office declares (sec. 6) that the Commissioner of the General Land Office shall be entitled to the custody of all the records, books, and papers in any way appertaining to the lands of the Republic, and that may now be in the care or possession of all empresarios, political chiefs, commissarios, or commissioners for issuing land-titles, or any other person; and that the said records, books, and papers shall become and be deemed the books and papers of the said office. The fifteenth section required all local registers, after recording powers of attorney, or any other instrument of writing connected with the grant of orders of survey, to forward them to the Commissioner of the General Land Office, showing that such instruments were regarded as belonging to that office. The power of attorney in the present case was specially referred to and acted on in the final grant of title, as appears by its recitals, and became a paper necessary for the Land Office to have in its possession in order to see the ground for extending the title to Williams as the attorney in fact of La Serda. Being thus an integral part of the original title, and belonging to the archives of the General Land Office, it was properly authenticated for all purposes by the certificates of the translator and commissioner. The Land Office Act of December 14th, 1837, declared that certified copies of any records, books, or papers belonging to the office, should be competent evidence in all cases where the originals could be evidence. The subsequent acts on the subject are equally explicit.

The next objection made by the defendants is, that although the power should be deemed sufficient, the deed was not a valid execution of the power, being a conveyance by Williams in his own name as attorney of La Serda, and not a conveyance in the name of La Serda by his attorney, Williams. The defendants' counsel is correct in saying that this would have been defective at common law. But in Texas, at the time when this deed was executed, the Spanish law with respect to transfers of title still prevailed. The common law was adopted in its application to juries and evidence on December 20th, 1836, but was not generally adopted as the rule of decision in other respects until January 20th, 1840. By the Mexico-Spanish law, prevailing in Texas in 1838, the deed was framed and executed in the ordinary legal form for transferring the title of the constituent or party who executed the power of attorney. Several instances of such deeds are to be found in the Texas reports, and passed without objection. The form of a deed to be executed by an attorney, as prescribed by the Spanish Partidas, L. 61, Tit. 18, Partidas 3d, is given in 16 Texas, 68, as follows:

'Know all men who may see these presents, that A. B., as attorney of C. D., specially authorized by him to sell, &c., to receive the purchase-money, and in his name to covenant, &c., does sell, &c.'

Such instruments are deemed the act of the principal and not of the agent. This being the law of Texas when the deed was executed, it was sufficient, in form and mode of execution, to pass a perfect title at that time from La Serda to the grantees, for it is well settled that it a title once becomes vested no subsequent change of laws as to forms or solemnities of conveyance will divest it.

The other objections raised to the admission of the deed are all involved in those already noticed, and need no further examination.

The position so elaborately argued by the defendants' counsel, to the effect that the title-papers appear never to have been completed, no evidence having been given to show that a testimonio was ever issued, or that the final title of possession ever became an executed instrument, cannot be considered on this writ of error. We have no means of knowing what evidence may have been offered to sustain the title-papers admitted in evidence, except from the defendants' bill of exceptions, and that is not now properly before us.

Our conclusion on the first part of the third bill of exceptions is, that there was error in rejecting the deed of 8th July, 1838, executed by Matthew R. Williams, as attorney in fact of La Serda.

In the second and third parts of the same bill, the plaintiff, after satisfactorily proving, by affidavits, the loss of a certain deed executed by Matthew R. Williams, as attorney in fact, and in the name of La Serda, dated 18th of May, 1850, whereby La Serda, by his said attorney, conveyed the land in controversy to Edward Hanrick, the original plaintiff in this action, and after putting in evidence the title-papers of La Serda, as stated in the first part of the bill, and after the rejection of the deed of 8th July, 1838, and the documents thereto attached, offered in evidence a duly certified copy of the said deed of May 18th, 1850, from the records of Falls County, Texas, which copy exhibited an acknowledgment before a notary public of the execution of the deed by Williams, as well as proof of its execution by one of the subscribing witnesses. The certified copy was objected to because the plaintiff did not file among the papers of the suit, three days before the trial, an affidavit of the loss of the deed; and the court excluded it on this ground.

The statute on this subject, passed 18th May, 1846 (omitting words immaterial to this case), is as follows:

'Every instrument permitted or required to be recorded in the office of the clerk of the county court, and which has been so recorded after being proven or acknowledged in the manner provided by law, shall be admitted in evidence without proving its execution. Provided that the party who wishes to give it in evidence shall file the same among the papers of the suit three days before the commencement of the trial, and give notice to the opposite party. And whenever any party to a suit shall file among the papers of the suit an affidavit stating that any instrument recorded as aforesaid has been lost, or that he cannot procure the original, a certified copy of the record of such instrument shall be admitted in like manner as the original could be.'

The plaintiff had duly filed among the papers of the suit more than three days before the commencement of the trial, the certified copy of the deed now offered; but did not file any affidavit of the loss of the original deed; and this was the ground of objection. It is sufficient to say that the statute does not require the proof of loss to be filed before the trial. It declares that whenever a party shall file an affidavit stating that an instrument has been lost, a certified copy shall be admitted the same as the original could be. It seems to us, that if the certified copy is filed three days before the commencement of the trial, with notice that the party intends to offer it in evidence (as was done in this case), it is a sufficient compliance with the statute. It is conceded that the Texas reports do not furnish any authority directly on the point; but it is understood that the practice corresponds to the course followed in this case. At all events, the statute seems to require nothing more. We think, therefore, that the certified copy of this deed was improperly excluded, on the ground assigned for its exclusion. Of course it could not be sustained as evidence in the cause, unless it was proven that Williams had authority to act for La Serda.

The fourth bill of exceptions is essentially the same as the first part of the third, showing a renewed offer of the deed of 1838, after proving the signature of the magistrate before whom it was acknowledged, and tracing title from Hoxey and Williamson to Hanrick. It needs no further discussion.

The fifth bill does not show any erroneous ruling. It presents an offer by the plaintiff from the Land Office, of a document purporting to be an agreement by La Serda to sell the eleven leagues of land to Roberts as soon as possession should be obtained, under a penalty of $10,000, with a mortgage of the grant, in case of failure to perform; and also an offer of another document whereby Roberts assigned this agreement to one Peebles; and, thirdly, a release from Peebles to Edward Hanrick.

A conclusive objection to these documents (which was made by the defendants) was, that they transferred no title. They were mere agreements. Other objections were raised against their admission, which it is not necessary to discuss.

The conclusion to which we have come is, that the judgment must be REVERSED, with directions to award a

VENIRE DE NOVO.

title: Hanrick v. Barton/Opinion of the Court


text: Talk:Hanrick v. Barton/Opinion of the Court


text:
The Cayuga (83 U.S. 177)

APPEAL from the Circuit Court for the Southern District of New York; the case as appearing from the weight of testimony being thus:

The Cayuga, a steamer engaged in towing canal-boats upon the Hudson River, took, on the 25th of May, 1867, the canal-boat Floating Battery, loaded with sand, in tow at Albany, to be brought to New York. The whole tow of the steamer consisted of thirty canal-boats and two barges, the latter being from 150 to 200 feet astern of the former. The canal-boats were placed in six tiers, each consisting of five boats, the Floating Battery being the starboard boat of the hindmost tier, bringing her the nearest to the west shore.

The distance from her to the Cayuga was about 1000 feet.

Upon the first night out, the Floating Battery was brought in contact with a lighthouse near Coxsackie, with such force that her lines parted and she was separated from the tow. She was replaced, however, in her old position by the aid of a passing steamer without much difficulty. After this she leaked a little, 'about as much in twenty-four hours as a man could pump out in an hour.' The evidence was clear that prior to this accident she was uncommonly dry and free from leaking. On the morning of the 28th of May, at about 12 1/2 o'clock-the canal-boat having been but a short time before pumped out-as the steamer with her tow was rounding West Point, the canal-boat struck something (a submerged rock the libellants alleged), upon her starboard side, with such force as to throw her captain, who was lying down in the cabin, out of his berth, and-the blow being a 'sagging blow'-to cause the boat to strike her companion upon its port side with great violence, sending the latter against its neighbor. At this time the canal-boat was not more than ten feet from the rocks upon the west shore; 'so near that a man could have jumped from her upon those rocks.'

As soon as the captain could gain his feet, he rushed upon deck, and being convinced that the boat was sinking, he and the bowman went immediately into the cabin for the purpose of securing their personal effects. When they reached it they heard the water rushing into the boat, and before they had procured their clothes the water was upon the cabin floor.

The helm was then lashed to port to send the boat to shore. By this time she had sunk so rapidly that the water was rushing in at the cabin windows, within a few inches of the deck. This was only two or three minutes after the blow. The lines connecting her with the next boat were then cut, her men stepping upon the boat upon her port side.

Two witnesses, standing upon the next boat to the canal-boat which was struck, close to her, who were not interested in any way in the cause, testified positively that they saw her sink stern foremost. No horn was blown after the canal-boat received her blow, nor any lantern swung: the usual signals from a vessel in tow to her steamer when desiring aid. The steamer did not stop, and her officers knew nothing of the accident to the canal-boat until the next morning.

A light that had been seen on the canal-boat, it appeared, had been seen for a considerable time, perhaps half an hour, after the accident. The only light, however, on the canal-boat was from a sheet-iron stove, which weighed about fifty pounds, and was placed upon a movable galley, not fastened to the deck. When the boat sank, the galley might have floated, the stove not being heavy enough to sink it.

The owners of the canal-boat having libelled the steamer in the District Court at New York, that court entered a decretal order in favor of the libellants and referred the cause to a commissioner to assess the damages. He took depositions and reported the value of the boat and cargo at $2329.92. The owners of the steamer excepted to the amount allowed, but they did not state what would have been a fair allowance for either boat or cargo, nor did they request the commissioner to report the evidence or his finding of the facts.

Some testimony was given in the record as having been taken before the commissioner, but it was not certified that it was all that was put before him. The District Court confirmed the report of the commissioner and entered a final decree in favor of the libellants. The owners of the steamer thereupon appealed to the Circuit Court, where the decree of the District Court was affirmed. They then appealed to this court, and the case was here upon the same testimony as that introduced in the courts below.

Mr. Van Santvoord, for the appellants, sought from an ingenious collocation of the evidence to show that the vessel had not struck a rock near the shore as the steamer turned at West Point, or that if she did, she certainly did not sink immediately, as two of the witnesses had testified. Her light had confessedly been seen for half an hour after the accident, which showed that these witnesses could not possibly have spoken the truth. She was therefore afloat for some minutes after the accident.

In these contracts for towing, says Lord Kingsdown, delivering the opinion of the court in Privy Council, in The Julia, the law implies an engagement that each vessel will perform its duty in completing it; that proper skill and diligence would be used on board each; and that neither vessel by neglect or misconduct would create unnecessary risk to the other, or increase any risk which might be incidental to the service undertaken. The obligation of the steamer to complete her contract, or to do what might be necessary to save the boat towed not being discharged by an accidental interruption or injury, the cutting the boat loose without such notice or alarm, if not an act creating unnecessary risk to the steamer, was an act greatly increasing the risk incidental to the service undertaken by the steamer. And this clear breach of duty is not less available as a defence, even if it were doubtful whether such notice would have been of any avail.

In addition, the master of the canal-boat, in cutting her loose without any signal by swinging a light or other effectual alarm to the steamer of her condition, was clearly guilty of negligence and breach of duty, which should be held to release the steamer of any obligation which she would otherwise have been under to take the requisite measures to provide for the safety of the canal-boat and to discharge the steamer from the damages consequent upon the loss of the boat and the cargo thereafter.

The learned counsel, relying on the evidence that had come up in the record as to the value of the canal-boat and cargo, argued that the sum given by the commissioner was excessive; that if the owners of the steamer were liable at all, they were not liable for so much (being the greater part thereof) as might have been saved by reasonable notice to the persons in charge of the steamer of her condition, when measures would have been taken to save, if not the whole boat and cargo, at least some part of them.

Mr. J. C. Carter, contra, contended that the case was a clear one. The steamer in rounding a dangerous point, and doubtless in a critical state of the tide, had let a very large and, of course, unmanageable tow follow with too long a hawser. The sinking in two or three minutes was testified to positively, and any light that had been on the boat which was seen for half an hour after the blow, was one floating on her galley after she had sank.

As to the other point, the damages on their face were not unreasonable. Moreover, the record does not present enough evidence for this court to review them.

Mr. Justice CLIFFORD delivered the opinion of the court.

title: The Cayuga (83 U.S. 177)


text: Talk:The Cayuga (83 U.S. 177)

title: Talk:The Cayuga (83 U.S. 177)