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Davidson v. Lanier/Opinion of the Court

Before proceeding to consider the questions arising on the instructions regarded in connection with the evidence, a motion to dismiss the writ of error must be disposed of.

It is objected to the writ of error that it was not allowed by any judge; but this is not required. It is enough that it was issued and served by copy lodged with the clerk of the court to which it was directed.

It is objected to the citation that it was dated 16th April, which was before the date of the judgment; but it is clear, from the number which it bears, taken in connection with the judgment it describes, that it was issued after the rendition on the 6th of June. The date must have been a mere clerical error, and the service on the 14th of September was regular and sufficient.

The fact that another writ of error and another citation, not served, were issued, cannot prejudice the writ and citation which were duly issued and served.

It is also urged that the appeal bond was not approved by the judge. But it is a fair inference, from the acts of the judge, in signing the citation, and in witnessing the appeal bond, that he approved of the security. The Judiciary Act does not, in terms, require that the judge shall put his approval of the bond in writing, nor can a writ of error be treated as a nullity because sufficient security is not given. This court will take care, on application, that the rights of the defendant in error be not prejudiced by the omission, but will not dismiss the writ except on failure to comply with such terms as it may impose.

The motion to dismiss in this case must be denied.

The first question upon the merits arises upon the fourth and fifth instructions. The court had already charged in substance that a contract in consideration of aid to be given in putting in operation an illegal banking company in Tennessee was void. From the fifth instruction, taken in connection with those which preceded, and with the evidence, the jury must have understood that in the judgment of the court a contract in consideration of aid in promoting the objects and effecting the purposes of an illegal banking company, when once in operation, was valid.

We think this construction of the statute of Tennessee too narrow. The intention of the act was declared by its title. It was an act to suppress private banking. Its object was the protection of the people against the evils of an unauthorized currency-than which hardly any object of legislation is more important. The currency measures all values, and is the medium, directly or indirectly, of all exchanges. To keep it sound, and to guard it as far as possible from fluctuation, are among the most imperative duties and among the most difficult problems of government.

In the construction of this act it was the duty of the court below, as it is ours here, to give effect to its obvious intention, if that can be done without disregarding settled rules of interpretation.

What, then, is the true sense of the prohibition to erect, establish, institute, or put in operation any banking company, or to issue any bills or notes with intent or purpose to do so? What is meant by putting in operation or establishing a banking company? We think that this language has a much wider import than mere commencement of business. To establish a company for any business means complete and permanent provision for carrying on that business, and putting a company in operation may well include its continued as well as its first or original operation.

This construction is supported by the prohibition to issue bills or notes. Taking the act of establishment and putting in operation, in the restricted sense of the instructions, the issue of circulation could not precede but must follow those acts. The prohibition of such issues, therefore, must be taken as proof that the legislature did not use the words in that sense.

The emission and circulation of unauthorized notes and bills as money was the main object and business of the company, and it was precisely this object and business which the legislature intended to defeat and prohibit.

We must construe the act, therefore, as covering with its penal prohibition the whole range of devices by which illegitimate currency is imposed on the community. It prohibits the use of such currency during the whole period of the establishment of an illegal company, and applied as completely to the last as to the first step of its operations. Any other construction would frustrate the legislative intent and leave the great mischief, which the statute was made to prevent, wholly without restraint or check.

It was quite clear, upon the evidence, that McMahon entered into the transaction, which resulted in the bill sued on, in the expectation of profit from aiding the operation of the prohibited banking company. He was engaged with its officers and stockholders in the scheme of imposing upon the community a prohibited and fraudulent currency. His name was upon its circulating bills, and his credit promoted their circulation. His curator cannot look to the law for remedies against his associates in this illegal undertaking.

With this view of the statute and we cannot distinguish this case from that of Brown v. Tarkington, decided at the last term. In that case we held that notes given for a balance found due on a settlement of accounts with an illegal banking company, and for advances to redeem its circulation, could not be enforced in favor of a payee who had been participant in the illegal business. The bill in this case, in our judgment, is of the same character.

It was urged in argument that the contract we have been considering was made in Louisiana, and not invalid by the laws of that State. But this is not so. The bill of exchange was made in Tennessee. It bears date at Memphis, and was signed there; and the contract of the defendant below was to be performed there. We by no means say that it would be valid if made in Louisiana. It is not necessary to consider that question; the laws of Tennessee determine the question of its validity, and we think that according to those laws it was invalid.

In our judgment, therefore, the fifth instruction was erroneous.

The sixth and seventh instructions remain to be considered. The sixth announced, without qualification, the proposition that the holder of a bill of exchange, signed and indorsed in blank, has unlimited authority to fill it up at pleasure and bind the signer and indorser by his act.

This instruction cannot be sustained. The delivery of a bill of exchange signed and indorsed in blank only authorizes the receiver, as between himself and the drawer and indorser, to fill it up in conformity with the authority given him. If there has been no agreement, the authority is general; if there has, it must be pursued. The burden of proof that there was an agreement, and that its terms have been violated, is, in such a case, upon the defendant; but if he can make the proof it will avail him. No person, unless authorized, either directly or by just inference from the nature of the transaction, can fill up a blank bill for his own benefit, nor can such a bill be enforced against the drawer and indorser in favor of any one who takes it in bad faith; that is, with knowledge that it has been filled up without authority or in fraud.

It is highly probable that the court below intended that its instructions should be taken with this limitation; but it was too general in its terms, and was, we think, calculated to mislead the jury.

The seventh instruction directed the jury in substance to find for the plaintiff if satisfied that the bill was signed in blank and delivered to Kirby to be sent to McMahon. It asserted that McMahon had the right in the case supposed to fill up the bill with any amount due him and make the drawers and indorsers liable on the bill to himself.

It is doubtless true that, subject to the limitations just stated, the delivery of a signature in blank is in general an authority to the holder to fill it up as he thinks proper. This rule, in its application to negotiable instruments, was very clearly stated by Mr. Justice Clifford in The Bank of Pittsburgh v. Neal, as follows: 'Where a party to a negotiable instrument intrusts it to the custody of another, with blanks not filled up, whether it be for the purpose to accommodate the person to whom it was intrusted, or to be used for his own benefit, such negotiable instrument carries on its face an implied authority to fill up the blanks and perfect the instrument; and as between such party and innocent third parties the person to whom it was so intrusted must be deemed the agent of the party who committed such instrument to his custody-or in other words, it is the act of the principal, and he is bound by it.'

But the instruction before us went much further. It asserted the right of a drawee to fill up a blank bill and hold the drawers and indorsers, and this without any other authority than such as is implied in the fact that the bill was sent to him by the last indorser with the consent of the other indorser and of the drawers.

Now it is quite clear that this fact implies no such authority. The only inference to be drawn from the circumstance that the bill was sent to McMahon in blank is that it was sent to him for acceptance. The structure of the paper excludes any other hypothesis. If, having received the bill in blank, he had accepted it and negotiated it to a third person, without notice of facts impeaching its validity between the antecedent parties, those parties would have been bound to the holder. But he, as drawee, could not transfer the bill to anybody without previous acceptance, and still less could he treat it as an obligation to himself.

We think there was error in these instructions as well as in the fifth.

The judgment of the District Court must, therefore, be reversed and the cause remanded for new trial in

CONFORMITY WITH THIS OPINION.

NOTE.-Another case, No. 52 of the Term, between the same parties, and where the questions were the same, was disposed of in the same way.

The CHIEF JUSTICE delivered the opinion of the court.

In this case, also, there is a motion to dismiss the writ of error; but, on looking into the record, we find that the writ was duly sued out and served, bond given, citation issued and served, and the record, with a copy of the citation and of the writ of error, brought up and filed in this court at the next term. There is no ground for the motion, and it is denied.

Upon the merits the case is the same with that just decided. The suit below was upon three bills of exchange, each for $1000; but otherwise blank as to signatures and indorsements, which were the same as upon the bill in the other case. The bills were sent by Kirby to McMahon, and were by him filled up in precisely the same manner as the other bill.

The charges of the court were substantially the same as m the other case, and the judgment is reversed for the same errors, and the cause

REMANDED FOR A NEW TRIAL.

title: Davidson v. Lanier/Opinion of the Court


text: Talk:Davidson v. Lanier/Opinion of the Court

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


text:
Bradley v. The People

THIS was a writ of error to the Supreme Court of Illinois.

The case came before that court on an appeal from a decision of the Board of Supervisors of the County of Peoria, by which they had refused to assess a state and county tax on the shares of Bradley and Howell in the First and Second National Banks of Peoria. The appeal was taken by the auditor of public accounts, in behalf of the State.

The Supreme Court reversed this decision of the board, and held the shareholders liable to the tax. The ground of exemption relied on, both before the supervisors and the Supreme Court, was want of authority in the board, within the forty-first section of the National Bank Act of June, 1864, and particularly within the second proviso of that section, which declares that the tax imposed on the shares of any banking associations under that act 'shall not exceed the rate imposed upon the shares in any of the banks organized under the authority of the States.'

The act of the State, dated February 14th, 1857, and under which the tax was assessed, provides for taxing the capital stock of the banks, together with the surplus profits or reserved funds. No tax was imposed specifically on the shares held by the stockholder.

Messrs. Dexter and Walker, for the shareholders, plaintiffs in error:

The State has adopted as its policy, in the case of its banks the policy of taxing the capital and property of the bank as an entirety to the corporation itself, and thereby of relieving the shares in the hands of the holder. This may be not only the most simple, direct, and economical method, but also the more usual one of charging this kind of property with its proportionate burden for the support of the government.

But whether the better mode or not, it is the one and the only one prescribed or authorized by the legislature of the State, and if the property in question is to be taxed at all, it must be assessed to the corporation, as part of one entire and indivisible thing. The statute is, of course, in derogation of the common law, and one by which the property of the citizen is taken and appropriated to the purpose of the government. The precise mode prescribed for the imposition of the tax must therefore be pursued.,

The conclusion is then inevitable, that the shares of the capital stock of banks and banking associations in the State of Illinois, in the hands of the shareholder, are not subject to taxation, but are exempt therefrom.

Now Congress provides that on any tax imposed on shares of National banks in the hands of the holder, the rate of 'such taxation shall not exceed the rate imposed upon the shares of any of the banks organized under the authority of the State where such association is located.' And if on the shares of banks organized under the law of the State, there is no rate of taxation, it follows that no taxes whatever could be imposed on the shares in question.

Mr. Palmer, contra:

Neither the National government, the creator of the spocies of property now taxed, nor the shareholders can be interested in the methods which may be adopted by the State for the imposition of the tax.

The objects of the government and the rights of the shareholders are secure under any modes which only impose the same rate of taxation upon the shares in National banks, that is imposed upon the shares in any banks organized under the laws of the State.

The inquiry then is: Do the laws of Illinois impose or is it proposed under those laws to collect from the plaintiffs in error any greater rate of taxation than is imposed upon shareholders in State institutions?

It is said that this is a tax not upon shares, but upon capital. But what difference does it make whether the shares are taxed to the several shareholders or the capital stock, which is the aggregate of all the shares, taxed to the corporation? 'The amount assessed by either mode is precisely the same. The shares represent the capital stock, and the capital stock represents the shares. If listed by the shareholder he would pay the tax directly, and if listed by the bank he would pay the same amount indirectly, as in that case the bank would apply, for that purpose, what would otherwise go to the shareholder as a portion of his dividend on his stock. It only accomplishes the same end in a different mode. It is, in this case, a tax on the shares of the capital stock and at the same rate.'

The shares in the State banks are taxed, and at the same rate as the shares of the banks created by the National banking law; and in no event can the shares in the local banks be taxed at a different rate from the shares in the National banks under existing State legislation. Where all the shares in a National bank are taxed, it can only equal the value of its capital stock, and that is the measure of the amount required to be assessed on the stock of the State banks.

Reply: It is said that the entire capital, which includes all the shares, is taxed as a whole, and that this, so far as the rate is concerned, is equivalent to taxing the shares. But the answer to this is, that under well-known principles of law, the statute laying the tax is to be strictly construed. The mode of taxation designated must therefore be scrupulously adhered to, and for it there is and can be no substitute or equivalent.

Again, a tax levied upon the entire capital of a bank. which includes all the shares, is not the same thing or equivalent to a tax levied upon the shares in the hands of the stockholders. 'The corporation,' says this court, in Van Allen v. The Assessors, 'is the legal owner of all the property of the bank, real and personal; and within the powers conferred upon it by the charter, and for the purpose for which it was created, can deal with the corporate property as absolutely as a private individual can deal with his own. This is familiar law, and will be found in every work that may be opened on the subject of corporations.' A striking exemplification may be seen in the case of The Queen v. Arnoud. The question related to the registry of a ship owned by a corporation. Lord Denman observed: 'It appears to me that the British corporation is, as such, it sole owner of the ship. The individual members of the corporation are no doubt interested, in one sense, in the property of the corporation, as they may derive individual benefits from its increase, or loss from its decrease; but in no legal sense are the individual members the owners.'

Mr. Justice NELSON delivered the opinion of the court.

title: Bradley v. The People


text: Talk:Bradley v. The People

title: Talk:Bradley v. The People


text:
Bradley v. The People/Opinion of the Court

The question raised in this case came before us in the case of Van Allen v. The Assessors, from New York, where the statute taxing the State banks was substantially like that of Illinois. We there held the tax unauthorized for the defect stated.

It was in that case attempted to be sustained on the same ground relied on here, that the tax on the capital was equivalent to tax on the shares, as respected the shareholders. But the position was answered that, admitting it to be so, yet, inasmuch as the capital of the State banks may consist of the bonds of the United States, which were exempt from State taxation, it was not easy to see that the tax on the capital was an equivalent to a tax on the shares.

We see no distinction between the two cases, and the judgment of the court below must be reversed, and the proceedings remanded, with directions to enter a judgment affirming the decision of the board of supervisors.

JUDGMENT ACCORDINGLY.

Mr. Justice DAVIS took no part in the decision of this case.


text: Talk:Bradley v. The People/Opinion of the Court


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Thompson v. Bowie

THOMPSON sued Bowie, in the Supreme Court for the District of Columbia, on three promissory notes for $1000, all dated on the 1st January, 1857, and all drawn payable to and indorsed by one Steer.

The defence was, that the notes were given for a gaming consideration, and were, therefore, void even in the hands of a bon a fide holder, under the statute of 9th Anne, ch. 14, § 1, in force in the district; which statute makes such notes 'utterly void, frustrate, and of none effect, to all intents and purposes whatsoever.'

The defendant did not offer any direct evidence tending to establish the defence; but resorted to and relied on proof of a circumstantial sort, or such as he so regarded. It consisted of the following facts, tending to prove which the court below allowed evidence to be given.

1st. That Steer, the payee of the notes, was the keeper of a gambling-house, in Washington City, at the date of the notes.

2d. That, at the time of the making of the notes, Steer was not engaged in any other business than gambling, nor was he the owner of any property.

3d. That another note of the defendant, of the same date (January 1st, 1857), as those sued on, of the same amount ($1000), as those sued on, was given, payable to the order of one Campbell, who was not only a frequenter of the gaming-house of Steer, but also in his employment as a dealer of faro.

4th. That the body of all four of said notes was in the handwriting of one J. R. James, who was a professional gambler, and a frequenter, among other such places, of the gambling-house of the said Steer.

5th. That on the night of the 31st of December, 1856 (New-Year's eve), the defendant, being at a social entertainment, became greatly intoxicated-so much so that he was unfit to transact any business; and that he was in that condition when with the witnesses he left the place of the entertainment, between one and two o'clock in the morning of the 1st of January, 1857, and was no more seen by them that day.

6th. That whenever the defendant was under the influence or excitement of wine or spirits, he had a propensity to gamble; and was in the habit of going into gamblinghouses, faro banks, &c., and there gambling, but not at other times; that, in the knowledge of the witness, he was always in this condition when he frequented such places; that the witness was a great deal with the defendant during the sessions of Congress; that he was in the witness's room almost every night, and frequently, when in liquor, would leave the witness to go with his friends to gambling-houses, and request the witness to go with him.

7th. That, at the date of the notes, the defendant was wealthy.

On this testimony, and without the plaintiff endeavoring to rebut this case, or to show in what manner he obtained possession of the notes, the case was given to the jury, who rendered a verdict in favor of the defendant.

On error here, one question among others, and the chief question, was as to the admissibility of the evidence tending to show, that when the defendant was under the excitement of ardent spirits he had a propensity to game; was in the habit of going into gaming-houses, &c., and of there gaming, but not at other times; and that, in the knowledge of the witness, he was always in this condition when he frequented such places.

Messrs. Brent and Merrick, for the holder of the notes, plaintiff in error:

In addition to numerous errors of the court, there was palpable error in its admitting the evidence to show that when the defendant was under the excitement of ardent spirits he was in the habit of going to gaming-houses, and, so far as the witness knew, was always in this condition when he went there. The testimony simply tended to prove a propensity; a propensity to game. Now, such a propensity, even if admitted, did not tend to prove that the notes sued on were given for a gaming debt. If A. has his money stolen, assuredly he could not recover it from B. by proving that B. had a propensity to steal. Jackson v. Smith, in the Supreme Court of New York is in point. There, a man named Norris was in the habit of lending money at usurious rates of interest; and the court considered it 'altogether probable' that a loan in question 'was a loan of that description.' They held, however, that 'the fact of Norris's general character or habit as a usurer' was not 'a legal foundation' for a verdict which found a particular transaction, not otherwise proved so to be, usurious.

Messrs. W. S.C.ox and S. L. Phillips, contra:

Three notes of a wealthy gentleman, all of the same date, in the same handwriting, for a like amount, and of a regular series of thirty, sixty, and ninety days, given at one time and in the same transaction, are found payable to a professional gambler at a time when he is a keeper of a public gaming-house, and has no other ostensible business, and a man of no property with which he might engage in lawful commerce. The body of each of these notes was in the handwriting of one J. R. James, a professional gambler and frequenter of the gaming-house of the said payee; and a fourth of the same series and like handwriting as the others, of the same date, and for the same amount, is found payable to the order of one Campbell, who was not only a frequenter of the gaming-house of the said Steer, but in his employment as a dealer of faro. We ask, is it not a fair inference from these facts that these notes had their origin in the gaming-house of the payee, and in the ordinary business which was carried on there? But these facts do not stand alone. Early in the morning of the very day the notes were given-New-Year's day, a day of festivity, and with many of excess-the defendant was in a grossly intoxicated state, and was no more seen by his friends that day; and we show that when intoxicated he exhibited an invariable habit of frequenting gaming-houses, a thing which he did at no other time.

The case presents, therefore, many circumstances, all interlacing and depending upon each other, and all pointing towards the same result; all reconcilable with the hypothesis of the defence, and improbable with any other. And we submit that each and every item of the evidence was admissible, including the one so particularly objected to.

This court has lately decided, in the two important cases of Cliquot's Champane and Fennerstein's Champage, the same principle of establishing one fact by another, although occurring as between third parties. In those cases, it is submitted no such necessary connection appears as is to be found in this.

The main question, however, now more particularly raised is this: Does evidence of the invariable habit or propensity of the defendant to game when intoxicated, and of the fact of intoxication at a certain time, tend, in connection with the other facts of this case, to prove a transaction of that date to have been the result of gaming? We submit that it does.

The foundation for the admission of all presumptive evidence is the known relation between like causes producing like effects; and wherever it is known that a certain cause usually produces the same effect, the rules of evidence admit either to prove the other.

It has been often decided by the courts in civil as well as criminal cases, that wherever a particular trait of character is involved, or is illustrative of the matter disputed, there the character of the party in that particular trait may be given in evidence. Thus, honesty in cases of felony, peaceable disposition, or quarrelsomeness when drunk, in those of riot, &c., chastity in those of seduction and criminal conversation, &c., &c. By the admission of such testimony, the courts recognize the principle contended for,-that a man known to act usually in a certain manner, under certain circumstances, will be presumed to act in the same manner when shown to be subjected to the same circumstances.

We have called this impulsion to gaming a 'propensity,' but it is hardly doing justice to our case thus to style it.

The true question is this, rather; and in presenting it we trust that in this age of physiological science we shall not be thought to be dealing with the question in a manner too abstruse and not practical.

This, we say, is the true question: 'Is the fact that an individual, who, when influenced by a certain and sufficient cause affecting his nervous organism to such an extent as to override or paralyze the judgment and will, has-in every instance where known to be so influenced-been found to act in a certain manner, admissible as evidence to show that on another occasion, when under the same exciting cause, he probably acted in the same manner?'

We submit that it is.

This law of universal causation is that which governs all material organism, and is the great law upon which all human life is built. It exists with such a uniformity that all men accept it as the surest method of a priori judgment and courts of justice adopting its principle as a means of investigating truth, as soon as they find that an isolated fact is the result of a certain cause, admit the like circumstances as proof of similar effects. Now, what is the cause of the peculiar effect attempted to be proved in this case? What influence did the cause in this case, to wit, the taking of ardent spirits, have on the defendant, and how is this influence produced?

Man is essentially a corporeal or material being. His mind is either the result of material organization, consisting of nervous centres, or it is so intimately connected with them as to be incapable of exhibiting life or power when disconnected from them. And it is the universal experience of all physiologists that this connection is so intimate as to show that what affects the nerves immediately affects the phenomena of the mind.

Now, it is known in science, or more properly in materia medica, that there are certain things which directly affect these nervous centres of the body; chief among these are strychnia, and alcohol, and the opiates. These taken into the body at once produce visible and marked effects on the mind. The question then arises, are these effects uniform in their character? The great law of like causes producing like effects answers this question that they must be. When not altered by countervailing or repellent circumstances, the action of strychnia, of opium, or of alcohol on the corporeal frame, will be as unalterable and uniform in their character as the revolutions of the planets or the law of gravitation. And such is the general experience of human nature. It is common knowledge, that some men are invariably excited to laughter and hilarity when intoxicated, others to quarrelling, others with the same regularity to morose conduct; some to one particular line of conduct, and others to some other.

How this effect of alcohol, strychnia, or the opiates is produced is not known as a matter for certain. The investigations of scientific men have, however, discovered that when these substances are taken there is either, on the one hand, a paralysis partial or total of the nerves, or an undue stimulation into action, and which is so great that the influence of the cerebrum, where the willing power of man is located, is not able to control this excited condition of the nervous system. This influence is so great that in cases of alcoholic stimulation, or opiate paralysis, the judgment as well as the other powers are affected. When in this situation, the individual acts not as one in full possession of his will, but from irresistible impulse which he cannot control, and which physiologists have termed the reflex action of the nervous centres.

The manner in which these various substances affect the nerves is, however, not important to the inquiry, it is only important to show that taking alcohol into the system is matter acting on matter, and to such an extent as, either from an enfeebled or paralyzed will, to be no longer under its restraint or control. In other words, when an individual is deprived of his will and is at the same time acted upon by extraneous circumstances, he becomes no more than any other piece of matter, and the law of causation will apply with full force.

It is obvious, then, and in this view of the case, that such cases as Jackson v. Smith, the authorities cited on the other side, and all similar cases, as to the admission of the general character of a person, when it is not put in issue by the nature of the action, do not apply to this case.

In those cases it was not matter acting on matter, alcohol upon the nervous centres of the brain, but certain ideas of self-interest, morality, fear, or what not, acting on the will of the individual; and the courts say that when the question is not involved by the very nature of the action, the evidence is too uncertain to be relied upon, because it is impossible to tell with any certainty what were the causes or the motives influencing the will, and how far the will, it being an intellectual capacity, is acted upon by them.

The rule admitting presumptive evidence does not require that this connection between the two facts should be invariable and absolutely certain, but only that it should exist in a majority of cases, or so often as to warrant the court in saying that some reasonable inference might be drawn from it.

And for this reason it need not be shown that the defendant always gamed when intoxicated, for then the proof of intoxication would be proof positive of the gaming, but the fact that he usually gamed when intoxicated, and at no other time, is admissible to show the probability of the fact.

If the habit, or the influence of the ardent spirits on the defendant, was not established to the satisfaction of the jury, then it went for nothing. The court here must decide upon the offer, and if the offer was right in theory, it was for the jury alone to say if this condition of intoxication, on the occasion in question, or this influence of alcohol was established to their satisfaction.

Mr. Justice DAVIS delivered the opinion of the court.

title: Thompson v. Bowie


text: Talk:Thompson v. Bowie

title: Talk:Thompson v. Bowie


text:
Thompson v. Bowie/Opinion of the Court

Thompson brought suit in the court below to recover on three promissory notes, purporting to be given on the first day of January, 1857, by Bowie to Steer, and indorsed to him. Bowie sought to avoid their payment on the ground that they were founded on a gaming consideration, and therefore void, even in the hands of an indorsee, without notice, because the statute of 9th Anne, avoiding gambling contracts, was in force in the District of Columbia, where they were executed. There was no direct evidence offered on the trial to impeach the consideration of the notes; but what is called circumstantial evidence, in contradistinction to direct evidence, was relied on to prove the defence. A brother of the defendant was called by him, and allowed to testify; that whenever his brother was under the influence of liquor, he had a propensity to gamble, and it is contended, as he was drunk on the morning the notes were given, and as they were in the handwriting of a professional gambler, and payable to the keeper of a gaming-house, the inference is fair and reasonable, that they were given for money won at play.

Did the court err in admitting this evidence?

If it did err in this matter, then the judgment must be reversed, for, undoubtedly, the jury, in the formation of their verdict, must have been greatly influenced by testimony that the general character or habit of Bowie was to gamble when intoxicated.

All evidence must have relevancy to the question in issue, and tend to prove it. If not a link in the chain of proof, it is not properly receivable. Could the habit of Bowie to gamble, when drunk, legally tend to prove that he did gamble on the day the notes were executed? The general character and habits of Bowie, were not fit subjects of inquiry in this suit for any purpose. The rules of law do not require the plaintiff to be prepared with proofs to meet such evidence. That Bowie gambled at other times, when in liquor, was surely no legal proof that because he was in liquor on the 1st day of January, 1857, he gambled with Steer. It is very rare that in civil suits the character of the party is admissible in evidence, and it is never permitted, unless the nature of the action involves or directly affects the general character of the party. Bowie was not charged with fraud, or with any action involving moral turpitude. He was simply endeavoring to show that his own negotiable paper was given for money lost at play; and to allow him, as tending to prove this, to give in evidence his habit to gamble when drunk, would overturn all the rules established for the investigation of truth. When trying a prisoner on an indictment, for a particular crime, proof that he has a general disposition to commit the crime is never permitted. If a man charged with the larceny of a horse was proved-in connection with other evidence tending to show his guilt-to be drunk on the day the horse was stolen, would any court allow the general evidence to go to the jury that, when drunk, he always stole a horse? And yet, the general rules of evidence are the same in civil as in criminal cases. 'There is no difference,' says Abbott, Justice, 'as to the rules of evidence between criminal and civil cases; what may be received in the one may be received in the other, and what is rejected in the one ought to be rejected in the other.'

The uniform habit of a party to loan money at usurious interest, was not considered by the Supreme Court of New York a legal foundation for a verdict establishing usury, although one usurious loan had been proved between the parties to the suit, and it was altogether probable, that the case under review was of that description. The uniform habit of Bowie, when drunk, to gamble is not a legal foundation for this verdict, although it is highly probable that the notes in controversy were executed by him for a gaming consideration.

There are other assignments of error, which it is unnecessary to notice, as the decision of this question disposes of the case.

The judgment of the court below is reversed, and mandate ordered, with instructions to award a

VENIRE DE NOVO.

I cannot give my assent to the reversal of this judgment for the reason alleged in the opinion of the court, nor for any other.

The defence to the payment of these notes was that they were obtained by fraud from the defendant when he was drunk, and were without consideration and void.

Now, fraud will not be presumed but must be proved as other facts, either by direct proof or by circumstantial evidence which will convince the mind of a jury that a fraud was committed. It is seldom that a fraud or conspiracy to cheat can be proved in any other way than by circumstantial evidence, as knaves have usually sufficient cunning to have no witnesses present who can testify directly to their fraudulent contrivances. Circumstantial evidence is often as convincing to the mind as direct testimony, and often more so. A number of concurrent facts, like rays of the sun, all converging to the same centre, may throw not only a clear light but a burning conviction; a conviction of truth more infallible than the testimony even of two witnesses directly to a fact. A cord of sufficient strength to suspend a man may be formed of threads, not one of which, alone, would support the weight of a pound or even of an ounce.

When it becomes necessary for the purpose of justice to have resort to circumstantial evidence, it is the usual course of counsel to object to each thread because it will not support the whole weight of the case. Thus, if the defence be that a note was obtained by a combination of a band of gamblers and swindlers from a drunken man, as but one fact or circumstance can be proved at a time, the learned counsel will object to the offer to prove that the payee kept a gambling-house, and will gravely quote the decision of some learned judge, that a plea of usury cannot be substantiated by proof that the plaintiff had the character of being a usurer; so also that he executed four other notes at the same time to other notorious gamblers, &c. No one of these facts standing by itself would be received as evidence in defence. But the court received evidence of the following facts:

The defendant gave evidence, by several witnesses, tending to prove that Steer kept a gambling-house in Washington City at the time of the date of the said notes, and was not engaged in any other business to the knowledge of the witnesses, and had no property to their knowledge, and that the defendant was at a social entertainment on the night of the 31st of December, 1856, and became grossly intoxicated, so that, in the opinion of said witnesses, he was unfit to transact business, and that he remained in such condition when he left the place of said entertainment with the other guests who were there, and that he left in such condition between one and two o'clock in the morning of the 1st of January, 1857, and also that the body of said notes was written in the handwriting of J. R. James, who not only frequented the gaming-house of the said Steer, but other gaming-houses; and then gave evidence to prove that said James was a gambler by profession. And the defendant then offered to prove that a note dated on the 1st January, 1857, for $1000, was given by the defendant, payable to Campbell, and indorsed by him, to one Johnson, and that Campbell was a frequenter of the said gaming-house, and assisted in dealing for the said Steer. And the plaintiff objected to the said note to Campbell being admitted in evidence, but the court overruled the objection and admitted the said note to be read in evidence. After the reception of this testimony, of which this court has found no fault, the defendant proposed to add another fact, to wit: 'that when the defendant was under the influence of liquor he had a propensity to gamble.'

This admission of evidence of a fact, of little consequence in the decision of the case, has been seized upon here and treated as the only fact in the case, and not a circumstance, which, unless connected with others, of itself formed no defence. Now if it was wholly irrelevant, it did no harm to either party. If it was a fact, which might influence the mind of a jury, why should it be withheld from them? In a charge of fraud courts have said, what is evidence to affect the mind of a jury is often difficult to decide or distinguish. But any fact, though in itself of slight importance, will not be withheld. In such cases it is not for the court to treat the jury as persons without discernment, where the issue is one purely of fact. Now there is not a fact stated as having been proved, taken by itself, as per se a defence to the action, which counsel might not with equal justice have treated as absurd or ridiculous. But if the court below had selected this fact from all the others as peculiarly liable to objection, their judgment might have been liable to the same charge.

title: Thompson v. Bowie/Opinion of the Court


text: Talk:Thompson v. Bowie/Opinion of the Court


text:
Mississippi v. Johnson

THIS was a motion made by Messrs. Sharkey and R. J. Walker, on behalf of the State of Mississippi, for leave to file a bill in the name of the State praying this court perpetually to enjoin and restrain Andrew Johnson, a citizen of the State of Tennessee and President of the United States, and his officers and agents appointed for that purpose, and especially E. O. C. Ord, assigned as military commander of the district where the State of Mississippi is, from executing or in any manner carrying out two acts of Congress named in the bill, one 'An act for the more efficient government of the rebel States,' passed March 2d, 1867, notwithstanding the President's veto of it as unconstitutional, and the other an act supplementary to it, passed in the same way March 23d, 1867; acts commonly called the Reconstruction Acts.

The former of these acts, reciting that no legal State governments or adequate protection for life or property now exists in the rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and that it was necessary that peace and good order should be enforced in them until loyal and republican State governments could be legally established, divided the States named into five military districts, and made it the duty of the President to assign to each one an officer of the army, and to detail a sufficient military force to enable him to perform his duties and enforce his authority within his district. It made it the duty of this officer to protect all persons in their rights, to suppress insurrection, disorder, violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals, either through the local civil tribunals or through military commissions, which the act authorized. It provided, further, that on the formation of new constitutions and certain conditions which the act prescribed, the States respectively should be declared entitled to representation in Congress and the preceding part of the act become inoperative; and that until they were so admitted any civil governments which might exist in them should be deemed provisional only, and subject to the paramount authority of the United States, at any time to abolish, modify, control, or supersede it.

The second of the two acts related chiefly to the registration of voters who were to form the new constitutions of the States in question.

The bill set out the political history of Mississippi so far as related to its having become one of the United States; and 'that forever after it was impossible for her people, or for the State in its corporate capacity, to dissolve that connection with the other States, and that any attempt to do so by secession or otherwise was a nullity;' and she 'now solemnly asserted that her connection with the Federal government was not in anywise thereby destroyed or impaired;' and she averred and charged 'that the Congress of the United States cannot constitutionally expel her from the Union, and that any attempt which practically does so is a nullity.'

The bill then went on:

'The acts in question annihilate the State and its government, by assuming for Congress the power to control, modify, and even abolish its government-in short, to exert sovereign power over it-and the utter destruction of the State must be the consequence of their execution. They also violate a well-known salutary principle in governments, the observance of which can alone preserve them, by making the civil power subordinate to the military power, and thus establish a military rule over the States enumerated in the act, and make a precedent by which the government of the United States may be converted into a military despotism, in which every man may be deprived of his goods, lands, liberty, and life, by the breath of a military commander, or the sentence of the military commission or tribunal, without the benefit of trial by jury, and without the observance of any of those requirements and guarantees by which the Constitution and laws so plainly protect and guard the rights of the citizen. And the more effectually to accomplish this purpose the said acts divide the ten Southern States into five military districts, and make it the duty of the President to assign an officer to the command of each district, and to place a sufficient force under him, whose will is to be the law and his soldiers the power that executes it. It is declared to be his duty to protect all persons in their rights of person and property; to suppress insurrections, disorder, and violence; and to punish, or cause to be punished, all disturbers of the peace and criminals; and he may organize military commissions and tribunals to try offenders when he may think proper. But, by what rule or law is he to judge of the rights of person or property? By what rule or law is he to arrest, try, and punish criminals? By what rule or law is he to judge whether they have committed crimes? The answer to these questions is plain,-by his own will; for, though he may adopt the State authorities as his instruments if he will, yet he may reject them if he will. A scope of power so broad, so comprehensive, was never before vested in a military commander in any government which guards the rights of its citizens or subjects by law. It embraces necessarily all those subjects over which the States reserved the power to legislate for themselves, as essential to their existence as States, including the domestic relations, all the rights of property, real and personal; the rights of personal security and personal liberty; and assumes the right to control the whole of the domestic concerns of the State. These acts also provide that the governments now existing in the Southern States are but provisional governments, subject to the paramount authority of Congress, which may at any time abolish, modify, control, or supersede them.'

It then charged that, from information and belief, the said Andrew Johnson, President, in violation of the Constitution, and in violation of the sacred rights of the States, would proceed, notwithstanding his vetoes, and as a mere ministerial duty, to the execution of said acts, as though they were the law of the land, which the vetoes prove he would not do if he had any discretion, or that in doing so he performed anything more than a mere ministerial duty; and that with the view to the execution of said acts he had assigned General E. O. C. Ord to the command of the States of Mississippi and Arkansas.

Upon an intimation made a few days before by Mr. Sharkey, of his desire to file this bill, the Attorney-General objected to it in limine, as containing matter not fit to be received. The Chief Justice then stated that while as a general thing a motion to file a bill was granted as of course, yet if it was suggested that the bill contained scandalous or impertinent matter, or was in other respects improper to be received, the court would either examine the bill or refer it to a master for examination. The only matter, therefore, which would now be considered was the question of leave to file the bill.

Messrs. Sharkey, R. J. Walker, and Garland, by briefs filed:

Can the President of the United States be made a party defendant to this bill? There is no precedent directly to the point. Yet it is believed the question has been virtually settled. It is important, in this connection, to mark the distinction between what are called political powers and such as are ministerial. In the exercise of discretionary or political powers, courts will not undertake to control the action of officers; but not so with regard to ministerial duties, in the exercise of which no one is above the law, however exalted his position. Fortunately, we have neither a king nor an emperor, nor a parliament, who are omnipotent or above the Constitution.

Our Constitution declares that 'the judicial power shall extend to all cases in law and equity arising under this Constitution,' &c. And thus the judiciary are made the guardians and protectors of the Constitution.

The President is but the creature of the Constitution, one of the agencies created by it to carry it into practical operation; and it would be strange if he should be permitted to exert his agency in violating that instrument, and then claim exemption from the process of the court whose duty it is to guard it against abuses, because he is the chief executive officer of the government, and especially when he is exerting a mere ministerial duty; for that is all he does exert in executing an act of Congress; he has no discretion in the matter. The Constitution makes no distinction as to parties. The case is the criterion, no matter who is plaintiff or who defendant; and if the President be exempt from the process of the law, he is above the law. On the trial of Aaron Burr, an application was made for a subpoen a duces tecum, to be directed to the President of the United States; and the application was resisted on the ground that the President was not amenable to the process of the court, and could not be drawn from the discharge of his duties at the seat of government, and made to attend the court sitting at Richmond. But Chief Justice Marshall, who tried the case, drew the distinction between the President and the King of England, and held that all officers in this country were subordinate to the law, and must obey its mandate, and, therefore, sustained the application. There, the subpoen a duces tecum was only a command to the President to do a particular thing. Here, the injunction asked for is but a command to him not to do a particular thing under a void authority. The principle is the same in the two cases, as well as the means of coercing obedience; and the reasoning of Chief Justice Marshall reaches and settles the question now before this court. The Constitution provides, indeed, that all officers may be impeached; but this does not exonerate them from personal liability for acts done under color of office, the President as well as other officers.

If the President be exempt, why not all his cabinet officers? They all constitute but parts of the executive department of the government. Yet in Marbury v. Madison, Secretary of State, it was decided that the acts of the Secretary of State were the acts of the President, and that the secretary might be subjected to the process of mandamus. Why would it not just as well lie against the President? It would be strange to hold that the subordinate is liable and may be sued for acts which are the acts of his principal, and yet that the principal is not liable and cannot be subjected to the process of law. Even more recently, in the cases of Mr. Kendall, Postmaster-General, and of Mr. Guthrie, Secretary of the Treasury, this court has decided that officers of the executive department are liable to the process of the court. The case of Ellis v. Earl Gray, is a leading case in England, and has been approved in this court. It was there decided that the Lords of the Treasury, constituting the prominent department of the executive government, might be enjoined by the judicial department. In that country, the King is supposed to be above the law, and is the fountain of justice; yet his immediate subordinate departments are not above it. In this country the President is not above the law; it is above him, and hence he must be subject to its restraints.

In The State of Ohio ex rel. v. Chase, Governor, the objection was raised, that a mandamus would not lie against the governor. But, in delivering the opinion, Chief Justice Bartley said:

title: Mississippi v. Johnson


text: Talk:Mississippi v. Johnson

title: Talk:Mississippi v. Johnson


text:
Mississippi v. Johnson/Opinion of the Court

'Under our system of government, no officer is placed above the restraining authority of the law, which is truly said to be universal in its behests, all paying it homage, the least as feeling its care, and the greatest as not being exempt from its power.'

If the chief executive officer of a State is liable to be controlled by the courts of the State in the discharge of ministerial duties, for much stronger reasons is the chief executive officer of the United States liable to be controlled by this court under the provisions of the Federal Constitution. In Greene v. Mumford, the Supreme Court of Rhode Island said, in regard to officers:

'If they are departing from the power which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, this court no longer considers them as acting under their commission, but treats them as individuals.'

By the same principle, the President, when acting in opposition to the Federal Constitution, may be treated as an individual.

II. Does the bill present a case proper for the interposition of this court? [The learned counsel then went fully into this point, enlarging upon and enforcing, by argument and authority, the positions set forth in the bill itself.]

It is manifest here that the case made against Andrew Johnson is not made against him as an individual, as a natural person, for any acts that he intends to do as Andrew Johnson the man, but altogether in his official capacity as President of the United States. The evil complained of, so far as he is concerned, is in the execution of what he considers to be his official duty (as they say, notwithstanding his vetoes), to execute certain acts of Congress by appointing the necessary officers. By his seeing to the execution of those laws the mishief ensues of which they complain; and, therefore, they ask this court to make him a party defenant; they ask this court to submit him, as President, to the process of subpoena; to compel his attendance; to bring him, as President, within the power of this court; and to compel him, by the power which a court of equity possesses to enforce its decrees, to do that, in regard to these laws, which this court may deem to be proper.

The opposing counsel admit that this is a case of the first impression; that they have no precedent for such a bill; but they have certain analogies, they think, under which this court will find power to bring the President here, and make him perform the behests of this court. It will be observed that there is no allegation that the President is about to do anything of his own motion, which, as President, he is not authorized to do. The allegation is, that he is about to execute certain laws passed by Congress; that he considers it his duty to execute those laws; but that this court is a better judge of his duty as President than the President himself; and that when he seeks to execute a law, and to avoid impeachment and denouncement as unfaithful to his duty as Executive, this court is to interfere and tell him what his duty is in the premises, and compel him to perform it.

Now, I beg attention to the cases upon which the counsel rely, not as in point, but as in close analogy; and, first of all, is what was decided in the case of Burr, by Chief Justice Marshall. In the course of the prosecution against Colonel Burr, his counsel deemed it necessary that they should have possession of a certain letter written to the then President, Mr. Jefferson, by General Wilkinson. It did not exactly appear whether it was a private letter or an official letter, but it was said to be a letter in the possession of the President. The counsel of Colonel Burr moved for a subpoena to be issued by the court to the President, commanding him to appear and bring with him that paper. The question was argued by the counsel for the United States, and by the counsel for Colonel Burr; and, although the counsel for the United States did not admit that such process could be issued against the President, they waived the point, and the whole argument was upon the right of the party to have the paper itself. They got upon that side issue, and did not argue, but merely stated the other point, that, according to their idea, a subpoena could not issue against the President. However, when Chief Justice Marshall came to decide the matter, undoubtedly he was of opinion that a subpoena might issue against the President, as President, to produce a paper in his possession as President. Counsel in this case argue from that, if the President is liable to the process of the court by subpoena to testify, he is liable to the process and the action of the court as a party to abide any order which the court may make. I will go a step or two further with that case, to show how, notwithstanding the opinion that was delivered by the Chief Justice, the court came to a point in which they would not take another step.

When the subpoena was received by the President, Mr. Jefferson, he did not give to it any notice. He did not even make any return to the court, nor any excuse to the court. He simply wrote a letter to the district attorney, in which he stated, that he could not conceive how it was that, under such circumstances, the court should order him to go there by subpoena; that he would not go; that he did not propose to go; but he said to the district attorney that there was no difficulty in obtaining the paper in the proper way. But he would pay no respect to the subpoena. Thereupon Colonel Burr himself moved for compulsory process to compel the President to come. Of course that was legitimate. If the court, in saying that the President was amenable to subpoena, was right, the court was bound, at the instance of the defendant, to follow it up by process of attachment to compel obedience to its lawful order. At that point, however, the court hesitated, and not a step further was taken toward enforcing the doctrine laid down by the Chief Justice. It then became quite too apparent that a very great error had been committed. I say a very great error, with the greatest submission to the great Chief Justice, who, on circuit, at nisi prius, suddenly, on a motion of this kind, had held that the President of the United States was liable to the subpoena of any court as President.

Is not the proposition subversive of all ideas of what government is and of the purposes for which a President is put in the executive chair, that whenever there are controversies between individuals anywhere in the United States, and the President even in his natural capacity happens to know anything about them, wherever the process of the court can extend to him territorially, he is bound to quit his office, to leave his place at the head of the government, and to attend to the business of the individual citizen; to remit his duties over the whole and attend to his duties to the individual? I know in that case of Burr an attempt was made to distinguish between the President and a king or queen of Great Britain, for it was acknowledged by every one that there was no authority in England for a suit or a subpoena or any command to the head of the government to appear before any court. But it is said that that depended upon the divinity which hedged a king or crowned head; that with us our President had no such immunity; that he could do wrong, although the King of England could not do wrong; that he was liable to punishment, liable under certain circumstances to process, and they attempted to make a distinction between the two. Undoubtedly so far as the mere individual man is concerned there is a great difference between the President and a king; but so far as the office is concerned-so far as his position as the great executive officer of this government is concerned-I deny that there is a particle less dignity belonging to the office of President than to the office of King of Great Britain or of any other potentate on the face of the earth. He represents the majesty of the law and of the people as fully and as essentially, and with the same dignity, as does any absolute monarch or the head of any independent government in the world.

It is not upon any peculiar immunity that the individual has who happens to be President; upon any idea that he cannot do wrong; upon any idea that there is any particular sanctity belonging to him as an individual, as is the case with one who has royal blood in his veins; but it is on account of the office that he holds that I say the President of the United States is above the process of any court or the jurisdiction of any court to bring him to account as President. There is only one court or quasi court that he can be called upon to answer to for any dereliction of duty, for doing anything that is contrary to law or failing to do anything which is according to law, and that is not this tribunal but one that sits in another chamber of this Capitol. There he can be called and tried and punished, but not here while he is President; and after he has been dealt with in that chamber and stripped of the robes of office, and he no longer stands as the representative of the government, then for any wrong he has done to any individual, for any murder or any crime of any sort which he has committed as President, then and not till then can he be subjected to the jurisdiction of the courts. Then it is the individual they deal with, not the representative of the people.

But what would be the consequences if the court should issue this subpoena against the President now, and like Mr. Jefferson he should decline to obey it, not out of any disrespect to this court, but out of respect to the high office which he fills? If the court should entertain this case, and direct its subpoena to issue to the President, what will come if, as is inevitable, he will not obey it? No man in the nation entertains a higher respect for this court than he does, but as the custodian of his office, as the person there representing the nation, it is not for Andrew Johnson to speak; it is for the President. He has no particular personal dignity of his own to take care of, but he is bound to take care of the dignity, the rights, and the prerogatives that belong to him as President. The one he may lay down and be as humble as he pleases; the other he cannot lay down. What then will be the consequences? I may suggest them.

If, under such advice and such action as is inevitable if this subpoena is issued, the President declines to obey it, treats the writ issued to him as one which he cannot obey and dare not obey, what next must your honors be called upon to do? Precisely what the Chief Justice was called upon to do in the case of Burr. The gentlemen at once move in this court for an attachment against the President for disobedience of a lawful order of this court that he shall attend and answer this complaint. If the President is liable to the subpoena, as the gentlemen say he is, then he is liable to answer as defendant, and when the subpoena is served upon him, whether he comes or not, if it is a lawful subpoena, he is within the jurisdiction of this court; he is a party here, and bound therefore by every act and every order which the court makes in this case. What, then, is the order, what is the relief, what is the judgment that the opposite counsel require? It is that he, as President, shall be enjoined from performing and executing two acts of Congress? If, when the President is here by a service of the subpoena, the court proceed in the case, and find it a case in which they are ready to order an injunction to issue to the President to command him not to execute those laws, and notwithstanding, the President goes on to execute them, what follows? That the court must now sustain its own dignity, for the court has a dignity and a power to be observed as well as the President. The next step here, then, is to move for an attachment, or a rule on the President, to show cause why an attachment should not issue against him; for what? For a contempt of this court; that whereas the court ordered him to abstain from proceeding further in the execution of these laws, in defiance of that order the President has gone on to do some acts in execution of the laws. He is therefore brought here by what kind of process? By process quasi criminal; by process of attachment to answer for a contempt of the court. Now we have subpoenas no longer; now we have process compelling his attendance, which goes to the marshal, and when we come to the proper point, process that goes to the marshal commanding him to bring the person of the President before this court to answer to this court for a disobedience of its process.

Now let us suppose the case to go so far as it must go in order to give the relief that is claimed; what sort of a spectacle have we? One great department of this government has arraigned another, and the executive department of the government, represented by the President, brought before the judicial department-for what purpose? To be punished criminally; for if he stands out and makes no apology to the court, and does not purge himself of the contempt in failing to obey its orders, the court is bound to put him in jail or to fine him; ordinarily to put him in jail, and, if he still persists, to keep him in jail without any remedy, for in cases of commitment for contempt no habeas corpus, as every one knows, can ever reach the prisoner. No other court can release the President from this imprisonment, by habeas corpus or otherwise. He is there a close prisoner of this court, and to remain there until he dies, unless he performs the orders of the court.

What then? The President deposed; the President made incapable of performing the duties of his office! Certainly a jail, or a dungeon it may be, is not a fit place to perform the duties and functions of President. You have made the President incapable of performing his duties. What is the effect of that? You have removed the President, for that is one of the conditions in which the President's office becomes vacant, that he is incapable of performing his duties. You have done it more effectually than by impeachment, for an impeachment does not deprive him of liberty; an impeachment sets him at large, and simply takes from him his official character; but the order of this court under these circumstances takes him as President and puts him in jail, and keeps him there until he performs what this court orders him to perform. That vindicates, it is true, the right of the State of Mississippi, or it may vindicate the right of any individual who has some claim to have an injunction against the President; but as to all the rest of us! as to the people, as to the government itself, what becomes of them under these circumstances and the exercise of that power? What becomes of the public safety, the salus populi, the suprome law of all laws, that this court, a co-ordinate branch of the government, bound to respect the other branches of the government, not to interfere with their duties or their privileges or their rights-that this court has in effect taken, destroyed, annihilated the President who is put there by the people? You leave the government without a head; you leave the office vacant, and the people must go about to get another President to perform these functions and these duties. In the meantime, until that is done, everything is at large, and there is not a law of the United States that can be executed, not an officer that can be appointed or an officer that can be removed. There is no one left to proclaim insurrection, if that shall happen. There is no one left to perform all the duties which for the safety of this people as a nation are reposed in the President. To correct a particular evil, to guard a particular individual or a particular State against the acts of the President, there is no way, according to the gentlemen, but to depose that President by a proceeding like this, and, for the correction of this lesser evil, to produce that enormous evil which affects not merely the State of Mississippi, but every other State of the Union and every individual.

Is this the way to treat the head of the government?

Take the common case of an ambassador who comes here from another government, who is not the chief of that government, neither a king nor the president of any republic, but who simply comes here to represent a foreign government. Can you sue him? Can you make him liable? Can you bring him within the jurisdiction of this court, or any other court, unless he chooses to come here voluntarily as a plaintiff? Not at all. His person is sacred. Why? Not on account of any natural dignity that pertains to him, but because he represents a sovereign; he is sent here by the chief executive of some other state-it may be a king, it may be a president-and as representing that foreign sovereign he is no more liable to suit here than the foreign sovereign himself would be, no matter what mischief he may do. I say he is not only not liable to civil suit, but not to criminal proceedings. If the representative of some foreign sovereign, should in a moment of passion kill some one in this District, some one of our own citizens, absolutely murder him-a thing most improbable indeed-but suppose the case-is there a court in the United States that could try that representative for that offence? I am putting the strongest case possible. There is a great mischief, to be sure; the representative has done a great injury; he has taken life; but in that extremest of all cases you cannot correct that great mischief and enormous wrong by committing the greater wrong of making him, the representative of another government, liable here to suit or prosecution. All you can do is to remand him and send him out of the country, and to require his own government to punish him for the offence he has committed. You have no jurisdiction over him.

The counsel, then, are latogether wrong in their argument that wherever there is a right there must be a remedy-wherever there is a wrong done there must be a means of righting that wrong. Not so; at any rate not in this case.

In support of their right to file this bill, opposite counsel refer to some authorities. They are cases that have been before this court, of proceedings not against the President, but against certain high officers of the government who have been brought in the court or made amenable to the process of the court.

First, let me say that there is a clear diversity between those cases and this. The various heads of departments who have been sued here, such as in the case of Mr. Kendall and Mr. Guthrie, and Mr. Madison while he was Secretary of State, are at last but subordinates. They are agents to carry out the executive power, but they are not the depositaries of the executive power. They have functions to perform, and although they are agents, they are public agents, and we must take care to see our way clearly, when we bring them into court for official action or official misconduct, how it should be done, whether at the instance of a private individual or otherwise. The only cases in which the court has maintained jurisdiction over the heads of departments in order to compel them to execute laws are cases of mandamus to compel a Postmaster-General, a Secretary of State, or a Secretary of the Treasury to do something; and the court has always been atrict in maintaining that jurisdiction; cautious at every step. That jurisdiction has been exercised again and again, but always with this limitation, that the thing required to be done is a simple ministerial act required to be done by the officer in virtue of some specific law. It is a thing as to which he has no discretion whatever; in which not the President merely but some law requires him to do some one thing. He is commanded by the legislative department to do some one thing in which a citizen is interested and he refuses to do it. The court have said in such a matter as that, being purely ministerial and directed by law, we will require that officer to do that thing. They have never said as to the President that where he is directed by law to do some single thing, although ministerial in its character merely, involving no discretion or the performance of any particular duty except the duty to obey that particular statute, that a mandamus could go against him, in such a case. The counsel can find no such dictum even. In the case of a mere subordinate officer the court may very well enforce its authority, even to the point of imprisoning him for contempt; because, taking a Secretary from the head of his department, or an Attorney-General from his office, or a Postmaster-General from his department, does not stop the government, does not interfere with any great branch or department of the government. The President is there to make another Attorney-General, or another Postmaster-General, or another Secretary. That does not interfere with the public interests. The government goes on just as well whether one officer is there or another officer is put in his place. But, notwithstanding that, as I have said, this court have exercised that sort of jurisdiction very carefully. I have not, however, found a case like this, a case in which a suit has been entertained by this court against an executive officer as such officer, or an injunction allowed against him, against the performance of his duty as an executive officer.

The English courts have set their faces against such suits. Macbeath v. Haldimand, was an action brought against Haldimand for certain things done by him in his capacity of Governor of Quebec. The case was argued in banc, in 1786, and Lord Mansfield, Mr. Justice Ashurst, Mr. Justice Willes, and Mr. Justice Buller held that he was not personally liable for bills of exchange drawn by him as Governor.

The case of Gidley v. Lord Palmerston establishes the doctrine that on principles of public policy an action will not lie against persons acting in a public character and situation.

The view I maintain has been expressed in this court, so far as the President is concerned. In Kendall v. United States, the court say:

'The executive power is vested in the President. As far as his power is derived from the Constitution he is beyond the reach of any other department, except in the mode prescribed by the Constitution,-through the impeaching power.'

There it is. As President, he is beyond the control of any other department, except through the impeaching power. For what is he reached by the impeaching power? The highest crimes and misdemeanors. Therefore, according to this, for the highest crimes and misdemeanors, he is, as President, above the power of any court or any other department of the government. Only in that other chamber can you arraign him for anything done or omitted to be done while he is President.

The State of Ohio, ex rel., v. Chase, Governor, is relied on by the other side; but that was a case where the Governor was directed by law to issue a certain proclamation upon the existence of certain facts which were admitted to exist; and it was held that, as the thing to be done did not necessarily appertain to the office of Governor, but was simply a duty imposed by a statute, the court might issue a mandamus to compel the performance of the ministerial act prescribed by statute.

So far as this bill seeks to make the President a party, I have said from the first that it was scandalous. I mean, of course, in legal language; that is to say, a suit not fit to be brought, and which no court in the United States can sustain. Therefore it is that as amicus curiae, or as law officer next the President, I have felt bound, at the first motion made to file this bill, to attempt to keep so scandalous a thing from the records of this court.

It is with the approbation, advice, and instruction of the President that I appear here to make this objection. I should have felt bound to make it on my own motion, as the law officer of the government. But although counsel, in their bill, have said that the President has vetoed these acts of Congress as unconstitutional, I must say, in defence of the President, this, that when the President did that he did everything he intended to do in opposition to these laws. From the moment they were passed over his veto there was but one duty in his estimation resting upon him, and that was faithfully to carry out and execute these laws. He has instructed me to say that in making this objection, it is not for the purpose of escaping from any responsibility either to perform or to refuse to perform.

The main question is whether a bill to restrain the President of the United States by injunction issuing from this court from carrying into effect an act of Congress forbidden by the Constitution, and therefore unconstitutional and void, being a proceeding to enjoin the President from the performance of a mere ministerial duty (for by his veto he admits it to be a mere ministerial duty which he is compelled to do), is, in fact, a proceeding against the government of the United States, and whether such a bill can be entertained by this tribunal.

This is not a suit against the President of the United States only giving the name of no individual, at all, as was the suit of the Governor of Georgia v. Juan Madrazo, known to the Attorney-General. That case was different, and the court well remarked that no process could issue unless against the State, because there was no individual named against whom any process could issue. But the President of the United States is not the government of the United States. The President, in a suit like this, does not represent all the departments of the government. The distinction is drawn in the clearest manner by Chief Justice Marshall, in the great case of Burr. He there said:

'The single reservation alluded to is the case of the King. Although he may, perhaps, give testimony, it is said to be incompatible with his dignity to appear under the process of the court. Of the many points of difference which exist between the first magistrate of England and the first magistrate of the United States, in respect to the personal dignity conferred on them by the constitutions of their respective nations, the court will only select and mention two. It is a principle of the English constitution that the King can do no wrong, that no blame can be imputed to him, that he cannot be named in debate.

'By the Constitution of the United States, the President, as well as any other officer of the government, may be impeached, and may be removed from office on high crimes and misdemeanors.

'By the Constitution of Great Britain the crown is hereditary, and the monarch can never be a subject.

'By that of the United States, the President is elected from the mass of the people, and on the expiration of the time for which he is elected returns to the mass of the people again.

'How essentially this difference of circumstances must vary the policy of the laws of the two countries in reference to the personal dignity of the Executive Chief will be perceived by every person. It this respect the first magistrate of the Union may more properly be likened to the first magistrate of a State, at any rate, under the former Confederation, and it is not known ever to have been doubted but that the chief magistrate of a State might be served with a subpoena ad testificandum.

'If in any court of the United States it has ever been decided that a subpoena cannot issue to the President, that decision is unknown to this court.'

In that case the awful consequences, which have been referred to so eloquently by my learned brother, of attaching the President of the United States, and compelling him by process of attachment to obey the subpoena, were all argued before Chief Justice Marshall gave this opinion. It was owing to entirely extraneous causes that it became unnecessary to carry it out; but this opinion was never recalled, nor changed, nor modified in any respect whatsoever. Of course, if the court had a right to issue a subpoena duces tecum to the President of the United States in the same manner as to any other person, it would follow, as a necessary consequence, that the court had a right to follow out a disobedience to that subpoena by the process of attachment for contempt.

The Attorney-General has said that if this court, in the performance of its duty, should proceed under its oath of office to defend the Constitution of the United States from violation, even by the hands of the President, the President could not obey its order, and that there would be brought on a direct and fearful conflict between the President and this great tribunal.

But who has contended more strongly and with more ability than this very President of the United States, in various veto messages, for the final character of the decisions of the Supreme Court of the United States in all cases involving a construction of its Constitution? Who has urged, from time to time, with more ability and force than this President the great doctrine that all the departments of this government are sworn to support the Constitution of the United States, and that this great tribunal, this arbiter, was created by the Constitution to avoid just such a result as the Attorney-General has referred to; was created for the peaceful and final and ultimate decision of all such questions as this? What! The President of the United States not obey the mandate of this court? If he does not, he disobeys the mandate of the Constitution.

It is said that the President merely follows the example of Thomas Jefferson in refusing to obey the subpoena. But the matter in the case of President Jefferson was not carried out. It was not necessary to carry it out. What the court would have done if the necessity had existed may be inferred from the opinion of Chief Justice Marshall. Moreover, I believe that Mr. Jefferson used to boast that he was no lawyer; we know that he had no very favorable opinion of lawyers, or of judges, and especially no very favorable opinion of the Supreme Court of the United States, or of the great man who presided there Chief Justice Marshall-during the period when he, Mr. Jefferson, was President of the United States. Upon a judicial question like this I shall not attempt to compare the opinion of President Jefferson with that of Chief Justice Marshall and the Supreme Court of the United States, and of Madison, as shown in the recent publication of the fourth volume of his writings. These carry out the idea set forth by Hamilton, and Madison, and Jay, in the Federalist, at the very time when the Constitution was pending for its ratification before the people, and set forth plainly before them that the Constitution had created one great tribunal, the Supreme Court, for the peaceful decision of all questions of constitutional law. What can be stronger than the language of Mr. Madison, that where two laws conflict with each other, the tribunal which is to expound and interpret the law is to decide which shall prevail? that when you take up an act of Congress on one page, and take up the Constitution on the other, if the act of Congress is in conflict with the prohibitions of the Constitution, that instrument declares it to be utterly null and void? Such was the opinion of Jay, and Madison, and Hamilton. Such was the sense in which the people of all the States understood the Constitution when it was framed, as shown by the debates. Such was the opinion of the first Congress, composed of many of the men who had framed the Constitution, who in the twenty-fifth section of the Judiciary Act gave final jurisdiction to this court in all cases involving the construction of the Constitution, laws, and treaties of the United States, even on appeal from the highest judicial State tribunals.

If there is anything that is definitely settled for three-fourths of a century by repeated and manifest decisions of this court, the opinions of the framers of the Constitution, and the great statesmen of the day, it is that this is the tribunal and the only tribunal created by the Constitution whose decision is final and conclusive upon the interpretation of the Constitution. I think that this court will answer the statement in which the Attorney-General has lapsed as to the inevitable disobedience of the President to a writ of this court, as it answered a menace when the Legislature and High Court of Error and Appeals of Virginia declared that they would not obey the final mandate of the Supreme Court of the United States. The answer which was given to that menace by the court, through Chief Justice Marshall, its organ, in delivering its opinion, is found in the case of Cohen v. Virginia.

'The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts or whatever difficulties a case may be attended we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution.'

Such was the answer given by this court, in that day, to the Legislature of Virginia, then all-powerful, and to the unanimous resolve of the High Court of Errors and Appeals of that great State, then composed of distinguished jurists and statesmen; that for this court to refuse to take jurisdiction in a case given them by the fundamental law, whatever the consequences might be, whoever might menace disobedience to the mandate of the court, would be treason to the Constitution. So I say here, that if this court shall issue its mandate, declaring an act of Congress to be unconstitutional, and restraining the President or Secretary of War, or any of the officers of the army or navy, from the execution of that act-whoever shall resist that mandate of the court by force will be guilty of treason.

[Mr. Walker next commented in detail upon the cases which had been cited, arguing from them that no officer is above the law, but that all are amenable and responsible to it.]

The Attorney-General has shown a picture of the calamities which would follow, if the President of the United States should disobey the mandate of this court. Let us look at the calamities that might follow, on the other hand, if this court declines to exercise the power which I think is granted by the Constitution, and permits these military laws to go into effect. What then? According to the President's own opinion, as expressed in his veto messages, the Constitution of the United States is, by the Reconstruction Acts, subverted and overthrown, and a military despotism is erected upon its ruins. Ten States are to be expelled from the Union; ten millions of people are to be deprived of all the benefits of the Constitution; deprived of the right of trial by jury. These ten States are cut up into five military districts; people are to be tried outside of their States for offences unknown and undefined, merely at the will of a military officer; deprived of the right of trial by jury; all this in time of profound peace, when Congress itself, speaking, as it has done in several acts, of 'States lately in rebellion,' admits that there is no rebellion in the land; deprived of their rights and privileges of American citiaens. So far as constitutional liberty is concerned, they might as well be living under a Czar or a Sultan, upon the banks of the Bosphorus or the Neva, as in this free country. Life, liberty, and property may be taken from them without due process of law.

The CHIEF JUSTICE delivered the opinion of the court.

A motion was made, some days since, in behalf of the State of Mississippi, for leave to file a bill in the name of the State, praying this court perpetually to enjoin and restrain Andrew Johnson, President of the United States, and E. O. C. Ord, general commanding in the District of Mississippi and Arkansas, from executing, or in any manner carrying out, certain acts of Congress therein named.

The acts referred to are those of March 2d and March 23d, 1867, commonly known as the Reconstruction Acts.

The Attorney-General objected to the leave asked for, upon the ground that no bill which makes a President a defendant, and seeks an injunction against him to restrain the performance of his duties as President, should be allowed to be filed in this court.

This point has been fully argued, and we will now dispose of it.

We shall limit our inquiry to the question presented by the objection, without expressing any opinion on the broader issues discussed in argument, whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime.

The single point which requires consideration is this: Can the President be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional?

It is assumed by the counsel for the State of Mississippi, that the President, in the execution of the Reconstruction Acts, is required to perform a mere ministerial duty. In this assumption there is, we think, a confounding of the terms ministerial and executive, which are by no means equivalent in import.

A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law.

The case of Marbury v. Madison, Secretary of State, furnishes an illustration. A citizen had been nominated, confirmed, and appointed a justice of the peace for the District of Columbia, and his commission had been made out, signed, and sealed. Nothing remained to be done except delivery, and the duty of delivery was imposed by law on the Secretary of State. It was held that the performance of this duty might be enforced by mandamus issuing from a court having jurisdiction.

So, in the case of Kendall, Postmaster-General, v. Stockton & Stokes, an act of Congress had directed the Postmaster-General to credit Stockton & Stokes with such sums as the Solicitor of the Treasury should find due to them; and that officer refused to credit them with certain sums, so found due. It was held that the crediting of this money was a mere ministerial duty, the performance of which might be judicially enforced.

In each of these cases nothing was left to discretion. There was no room for the exercise of judgment. The law required the performance of a single specific act; and that performance, it was held, might be required by mandamus.

Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. By the first of these acts he is required to assign generals to command in the several military districts, and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementary act, other duties are imposed on the several commanding generals, and these duties must necessarily be performed under the supervision of the President as commander-in-chief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.

An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshal, as 'an absurd and excessive extravagance.'

It is true that in the instance before us the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion.

It was admitted in the argument that the application now made to us is without a precedent; and this is of much weight against it.

Had it been supposed at the bar that this court would, in any case, interpose, by injunction, to prevent the execution of an unconstitutional act of Congress, it can hardly be doubted that applications with that object would have been heretofore addressed to it.

Occasions have not been wanting.

The constitutionality of the act for the annexation of Texas was vehemently denied. It made important and permanent changes in the relative importance of States and sections, and was by many supposed to be pregnant with disastrous results to large interests in particular States. But no one seems to have thought of an application for an injunction against the execution of the act by the President.

And yet it is difficult to perceive upon what principle the application now before us can be allowed and similar applications in that and other cases have been denied.

The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained.

It will hardly be contended that Congress can interpose, in any case, to restrain the enactment of an unconstitutional law; and yet how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that purpose certain, be distinguished, in principle, from the right to such interposition against the execution of such a law by the President?

The Congress is the legislative department of the government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.

The impropriety of such interference will be clearly seen upon consideration of its possible consequences.

Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?

These questions answer themselves.

It is true that a State may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.

It has been suggested that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an act of Congress by Andrew Johnson, is relief against its execution by the President. A bill praying an injunction against the execution of an act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a State.

The motion for leave to file the bill is, therefore,

DENIED.


text: Talk:Mississippi v. Johnson/Opinion of the Court