text:
Brown v. Houston/Opinion of the Court

This suit was brought by the plaintiffs in error in the civil district court for the parish of Orleans, state of Louisiana, on the thirtieth of December, 1880, to enjoin the defendant Houston from seizing and selling a certain lot of coal belonging to the plaintiffs, situated in New Orleans. They alleged in their petition that they were residents and did business in Pittsburgh, state of Pennsylvania; that Houston, state tax collector of the upper district of the parish of Orleans, had officially notified Brown & Jones, the agents of the plaintiffs in New Orleans, that they (Brown & Jones) were indebted to the state of Louisiana in the sum of $352.80, state tax for the year 1880 upon a certain lot of Pittsburgh coal, assessed as their property, and valued at $58,800; that they (Brown & Jones) were delinquents for said tax; and that he, said tax collector, was about to seize, advertise, and sell said coal to pay said tax, as would appear by a copy of the notice annexed to the petition. The plaintiffs alleged that they were not indebted to the state of Louisiana for said tax; that they were the sole owners of the coal, and were not liable for any tax hereon, having paid all taxes legally due for the year 1880 on said coal in Pennsylvania; and that the said coal was simply under the care of Brown & Jones as the agents of the plaintiffs in New Orleans, for sale. They further alleged that said coal was mined in Pennsylvania, and was exported from said state and imported into the state of Louisiana as their property, and was then, (at the time of the petition,) and had always remained, in its original condition, and never had been or become mixed or incorporated with other property in the state of Louisiana; that when said assessment was made, the said coal was afloat in the Mississippi river, in the parish of Orleans, in the original condition in which it was exported from Pennsylvania, and the agents, Brown & Jones, notified the board of assessors of the parish that the coal did not belong to them, but to the plaintiffs, and was held as before stated, and was not subject to taxation, and protested against the assessment for that purpose. The plaintiffs averred that the assessment of the tax and any attempt to collect the same were illegal and oppressive, and contrary to the constitution of the United States, article 1, § 8, pars. 1 and 3, and section 10, par. 2. They therefore prayed an injunction to prevent the seizure and sale of the coal, which, upon giving the requisite bond, was granted.

The notice of assessment referred to in the petition, and annexed thereto, was as follows:

'OFFICE STATE TAX COLLECTOR, UPPER DISTRICT,

'PARISH OF ORLEANS, NO. 24 UNION STREET,

'NEW ORLEANS, December 20, 1880.

'To Brown & Jones, Gravier and Charles street-SIR: You are     hereby officially notified, in conformity with the provisions      of act No. 77 of 1880, that the state taxes assessed to you      on movable property in this parish, which amount to the sum      of $352.80 (the aggregate assessed value of such property      being $58,800.00) fell due and should have been paid in full on or before the first day of the current month; that      you became a delinquent for said taxes on such first day of      December; that after the expiration of twenty days from the      date of this notice, I, as tax collector of the upper      district of the parish of Orleans, will advertise for sale      the movable property on which the said taxes are due in the      manner provided by law for judicial sales; that at the      principal front door of the court-house, where the civil      district court of said parish is held, I will sell, within      the legal hours for judicial sales, for cash, and without      appraisement, such portion of the said movable property as      you shall point out and deliver to me; and in case you shall      not point out sufficient property, that I will at once, and      without further delay, sell for cash, without appraisement,      the least quantity of said movable property which any bidder      will buy for the amount of taxes assessed upon movable      property, with interest and costs.

Respectfully, yours,

J. D. HOUSTON,

'State Tax Collector, Upper District, Parish of Orleans.'

The defendant answered with a general denial, but admitting the assessment of the tax and the intention to sell the property for payment thereof.

The plaintiffs, to sustain the allegations of their petition, produced two witnesses. George F. Rootes testified that he was the general agent and manager of the business of Brown & Jones in New Orleans; that when the assessment complained of was made, the firm had paid the state taxes due upon their capital stock, and had paid state and city licenses to do business for that year; that, at the time of the assessment of the tax in question, the coal upon which it was levied was in the hands of Brown & Jones, as agents for the plaintiffs, for sale, having just arrived from Pittsburgh, Pennsylvania, by flatboats, and was on said boats in which it arrived, and afloat in the Mississippi river; that it was held by Brown & Jones to be sold for account of the plaintiffs by the boat-load, and that since then more than half of it had been exported from this country on foreign steam-ships, and the balance sold into the interior of the state for plantation use by the flat-boat load. Samuel S. Brown, one of the plaintiffs, testified that the plaintiffs were the owners of the coal in question; that it was mined in plaintiffs' mine, in Allegheny county, Pennsylvania; that a tax of two or more mills was paid on it in Pennsylvania as state tax thereon, in the year 1880, being the tax of 1880; that a tax was also paid on it to the county of Allegheny for the year 1880; that it was shipped from Pittsburgh, Pennsylvania, in 1880, and was received in New Orleans in its original condition, and in its original packages, and still owned by the plaintiffs. No other proof was offered in the case.

The Louisiana statute of April 9, 1880, act No. 77, under which the assessment was made, provided as follows:

'Section 1. That for the calendar year 1880, and for each and every succeeding calendar year, there are hereby levied annual taxes, amounting in the aggregate to six mills on the dollar of the assessed valuation hereafter to be made of all property situated within the satate of Louisiana, except such as is expressly exempted from taxation by the (state) consititution.'

The exemptions from taxation under the constitution of Louisiana do not afect the question. Upon the case as thus made the district court of the parish dissolved the injunction and dismissed the suit. On appeal to the supreme court of Louisiana this judgment was affirmed, and the case is now here by writ of error to the judgment of the supreme court. The following errors have been assigned: 'The lower court erred in holding (1) that the tax in question did not violate article 4, § 2, cl. 1, of the federal constitution; (2) that it did not violate article 1, § 8, cl. 3, of the same instrument; (3) that it did not violate article 1, § 10, cl. 2, of the same instrument.' The clauses here referred to are these: '(1) The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. (2) The congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. (3) No state shall, without the consent of congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws.'

The constitutional questions here presented were argued in the supreme court of Louisiana, and in what manner the subject was viewed by that court may be seen by the following extracts from its opinion, filed as part of the judgment. The court said: 'First. This act [No. 77 of 1880] does not in its terms discriminate against the products of other states or the property of the citizens of other states, but subjects all property liable to taxation found within the state, whether of its own citizens or citizens of other states, whether imported from other states or produced here, to the same rate of taxation. * *  * Second. The coal in question was taxed in common with all other property found within the state. We held in the case of City of New Orleans v. Eclipse Tow-boat Company, recently decided by us, but not reported, that the clause in the federal constitution giving to congress the power to regulate commerce with foreign nations, and among the states, had no immediate relation to or necessary connection with the taxing power of a state. Every tax upon property, it is true, may affect more or less the operations of commerce, by diminishing the profits to be derived from the subjects of commerce, but it does not for that reason amount to a regulation of commerce within the meaning of the federal constitution; and such is the doctrine laid down by the supreme court of the United States, 15 Wall. 293. * *  * Third. This tax cannot be regarded as a duty or impost levied by the state on imports. To give such a construction to it, and to recognize the alleged prohibition contended for, ould create an exemption for all goods and merchandise and property of every kind and description brought into the state for sale or use, and by such construction destroy a main source of revenue to the state. As we had occasion to show in the case referred to, the word 'imports' used in the constitution has been construed to apply, not to property brought or imported from other states of the Union, but solely to imports from foreign countries. Woodruff v. Parham, 8 Wall. 122; 5 Wall. 479. * *  * '

In approaching the consideration of the case we will first take up the last objection raised by the plaintiff in error, namely, that the tax was a duty on imports and exports. It was decided by this court in the case of Woodruff v. Parham, 8 Wall. 123, that the term 'imports' as used in that clause of the constitution which declares that 'no state shall, without the consent of congress, lay any imposts or duties on imports or exports,' does not refer to articles carried from one state into another, but only to articles imported from foreign countries into the United States. In that case the city of Mobile had by ordinance, passed in pursuance of its charter, authorized the collection of a tax on real and personal estate, sales at auction, and sales of merchandise, capital employed in business, and income within the city. Woodruff and others were auctioneers, and were taxed under this ordinance for sales at auction made by them, including sales of goods, the product of other states than Alabama, received by them as consignees and agents, and sold in the original and unbroken packages; but as the ordinance made no discrimination between sales at auction of goods produced in Alabama and goods produced in other states, the court held that the tax was not unconstitutional. A contrary result must have been reached under the ruling in Brown v. Margland, 12 Wheat. 419, if the constitutional prohibition referred to had been held to include imports from other states as well as imports from foreign countries; for, at the time the tax was laid, the condition of the goods, in reference to their introduction into the state, was precisely the same in one case as in the other. This court, however, after an elaborate examination of the question, held that the terms 'imports' and 'exports' in the clause under consideration had reference to goods brought from or carried to foreign countries alone, and not to goods transported from one state to another.

It is unnecessary, therefore, to consider further the question raised by the plaintiffs in error under their third assignment of errors so set forth, as it is based on the assumption that the tax complained of was an impost or duty on imports. The other assumption made under that assignment, that some of the coal was afterwards exported, and that the tax complained of was therefore pro tanto a duty on exports, is equally untenable. When the petition was filed the coal was lying in New Orleans, in the hands of Brown & Jones, for sale. The petition states this in so many words, and Rootes testifies the same thing, and adds that it was to be sold by the flat-boat load. He also adds that at the time of his examination more than half of it had been exported to foreign countries; but he probably means that it had been sold to steamers sailing to foreign ports for use on the same, and had only been exported in that way. The complainants were not exporters; they did not hold the coal at New Orleans for exportation, but for sale there. Being in New Orleans, and held there on sale, without reference to the destination or use which the purchasers might wish to make of it, it was taxed in the hands of the owners, (or their agents,) like all other property in the city, six mills on the dollar. If, after this, and after being sold, the purchaser thought proper to put it on oard of a steamer bound to foreign parts, that did not alter the character of the taxation so as to convert it from a general tax to a duty on exports. When taxed it was not held with the intent or for the purpose of exportation, but with the intent and for the purpose of sale there, in New Orleans. A duty on exports must either be a duty levied on goods as a condition, or by reason of their exportation, or, at least, a direct tax or duty on goods which are intended for exportation. Whether the last would be a duty on exports, it is not necessary to determine. But certainly, where a general tax is laid on all property alike, it cannot be construed as a duty on exports when falling upon goods not then intended for exportation, though they should happen to be exported afterwards. This is the most that can be said of the goods in question, and we are therefore of opinion that the tax was not a duty on exports any more than it was a duty on imports, within a meaning of those terms in the clause under consideration.

But in holding, with the decision in Woodruff v. Parham, that goods carried from one state to another are not imports or exports within the meaning of the cluse which prohibits a state from laying any impost or duty on imports or exports, we do not mean to be understood as holding that a state may levy import or export duties on goods imported from or exported to another state. We only mean to say that the clause in question does not prohibit it. Whether the laying of such duties by a state would not violate some other provision of the constitution,-that, for example, which gives to congress the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes,-is a different question. This brings us to the consideration of the second assignment of error, which is founded on the clause referred to.

The power to regulate commerce among the several states is granted to congress in terms as absolute as is the power to regulate commerce with foreign nations. If not in all respects an exclusive power; if, in the absence of congressional action, the states may continue to regulate matters of local interest only incidentally affecting foreign and interstate commerce, such as pilots, wharves, harbors, roads, bridges, tolls, freights, etc., still, according to the rule laid down in Cooley v. Board of Wardens of Philadelphia, 12 How. 319, the power of congress is exclusive wherever the matter is national in its character, or admits of one uniform system or plan of regulation; and is certainly so far exclusive that no state has power to make any law or regulation which will affect the free and unrestrained intercourse and trade between the states, as congress has left it, or which will impose any discriminating burden or tax upon the citizens or products of other states, coming or brought within its jurisdiction. All laws and regulations are restrictive of natural freedom to some extent, and where no regulation is imposed by the government, which has the exclusive power to regulate, it is an indication of its will that the matter shall be left free. So long as congress does not pass any law to regulate commerce among the several states, it thereby indicates its will that that commerce shall be free and untrammeled; and any regulation of the subject by the states is repugnant to such freedom. This has frequently been laid down as law in the judgments of this court. In Welton v. State of Missouri, 91 U.S. 282, Mr. Justice FIELD, speaking for the court, said: 'The fact that congress has not seen fit to prescribe any specific rules to govern interstate commerce does not affect the question. Its inaction on this subject, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declaration that interstate commerce shall be free and untrammeled.' This was said in a case where plaintiff in error had been convicted of selling goods without a license under a law of the state o Missouri, which prohibited any person from dealing as a peddler without license, and which declared that a peddler was one dealing in goods or wares 'not the growth, produce, or manufacture of this state, [Missouri,] by going from place to place to sell the same.' To the same purport, and on the same subject generally, see Gibbons v. Ogden, 9 Wheat. 209; License Cases, 5 How. 575, 592, 594, 600, 605; Passenger Cases, 7 How. 407, 414, 419, 445, 462-464; Crandall v. Nevada, 6 Wall. 35, 41-49; Paul v. Virginia, 8 Wall. 168, 182-184; Ward v. Maryland, 12 Wall. 418, 430, 431; State Tax on Railway Receipts, 15 Wall. 293; The Lottawanna, 21 Wall. 581; Henderson v. Mayor of N. Y. 92 U.S. 259; Sherlock v. Alling, 93 U.S. 99; Railroad Co. v. Husen, 95 U.S. 465; Cook v. Pennsylvania, 97 U.S. 566; Guy v. Baltimore, 100 U.S. 434; Tiernan v. Rinker, 102 U.S. 123; Packet Co. v. Catlettsburg, 105 U.S. 559; Transportation Co. v. Parkersburg, 107 U.S. 701; S.C.. 2 SUP. CT. REP. 732; and see Moran v. New Orleans, 112 U.S. 69; S.C.., ante, 38.

In the case of Railroad Co. v. Husen, 95 U.S. 469, in which another law of the state of Missouri came up for consideration, which declared that no Texas, Mexican, or Indian cattle should be driven or otherwise conveyed into the state, between the first of May and first of November, unless carried through the state in cars, without being unloaded, this court, through Mr. Justice STRONG, said: 'It seems hardly necessary to argue at length that, unless the statute can be justified as a legitimate exercise of the police power of the state, it is a usurpation of the power vested exclusively in congress. It is a plain regulation of interstate commerce, a regulation extending to prohibition. Whatever may be the power of a state over commerce that is completely internal, it can no more prohibit or regulate that which is interstate than it can that which is with foreign nations.' In short, it may be laid down as the settled doctrine of this court, at this day, that a state can no more regulate or impede commerce among the several states than it can regulate or impede commerce with foreign nations.

This being the recognized law, the question then arises whether the assessment of the tax in question amounted to any interference with, or restriction upon, the free introduction of the plaintiffs' coal from the state of Pennsylvania into the state of Louisiana, and the free disposal of the same in commerce in the latter state; in other words, whether the tax amounted to a regulation of, or restriction upon, commerce among the states, or only to an exercise of local administration under the general taxing power, which, though it may incidentally affect the subjects of commerce, is entirely within the power of the state until congress shall see fit to interfere and make express regulations on the subject.

As to the character and mode of the assessment, little need be added to what has already been said. It was not a tax imposed upon the coal as a foreign product, or as the product of another state than Louisiana, nor a tax imposed by reason of the coal being imported or brought into Louisiana, nor a tax imposed while it was in a state of transit through that state to some other place of destination. It was imposed after the coal had arrived at its destination and was put up for sale. The coal had come to its place of rest, for final disposal or use, and was a commodity in the market of New Orleans. It might continue in that condition for a year or two years, or only for a day. It had become a part of the general mass of property in the state, and as such it was taxed for the current year, (1880,) as all other property in the city of New Orleans was taxed. Under the law, it could not be taxed again until the following year. It was subjected to no discrimination in favor of goods which were the produ t of Louisiana, or goods which were the property of citizens of Louisiana. It was treated in exactly the same manner as such goods were treated.

It cannot be seriously contended, at least in the absence of any congressional legislation to the contrary, that all goods which are the product of other states are to be free from taxation in the state to which they may be carried for use or sale. Take the city of New York, for example. When the assessor of taxes goes his round, must he omit from his list of taxables all goods which have come into the city from the factories of New England and New Jersey, or from the pastures and grain-fields of the West? If he must, what will be left for taxation? And how is he to distinguish between those goods which are taxable and those which are not? With the exception of goods imported from foreign countries, still in the original packages, and goods in transit to some other place, why may he not assess all property alike that may be found in the city, being there for the purpose of remaining there till used or sold, and constituting part of the great mass of its commercial capital: provided always that the assessment will be a general one, and made without discrimination between goods the product of New York, and goods the product of other states? Of course the assessment should be a general one, and not discriminative between goods of different states. The taxing of goods coming from other states, as such, or by reason of their so coming, would be a discriminating tax against them as imports, and would be a regulation of interstate commerce, inconsistent with that perfect freedom of trade which congress has seen fit should remain undisturbed. But if, after their arrival in the state,-that being their place of destination for use or trade,-if, after this, they are subjected to a general tax laid alike on all property within the city, we fail to see how such a taxing can be deemed a regulation of commerce which would have the objectionable effect referred to.

We do not mean to say that if a tax collector should be stationed at every ferry and railroad depot in the city of New York, charged with the duty of collecting a tax on every wagon-load or car-load of produce and merchandise brought into the city, that it would not be a regulation of, and restraint upon, interstate commerce, so far as the tax should be imposed on articles brought from other states. We think it would be, and that it would be an encroachment upon the exclusive powers of congress. It would be very different from the tax laid on auction sales of all property indiscriminately, as in the case of Woodruff v. Parham, which had no relation to the movement of goods from one state to another. It would be very different from a tax laid, as in the present case, on property which had reached its destination, and had become part of the general mass of property of the city, and which was only taxed as a part of that general mass in common with all other property in the city, and in precisely the same manner.

When congress shall see fit to make a regulation on the subject of property transported from one state to another, which may have the effect to give it a temporary exemption from taxation in the state to which it is transported, it will be time enough to consider any conflict that may arise between such regulation and the general taxing laws of the state. In the present case we see no such conflict, either in the law itself or in the proceedings which have been had under it and sustained by the state tribunals, nor any conflict with the general rule that a state cannot pass a law which shall interfere with the unrestricted freedom of commerce between the states. In our opinion, therefore, the second assignment of error is untenable.

The only remaining assignment of error to be considered is that the tax in question violated that clause of the fourth article of the constitution which declares that 'the citizens of each state shall be entitled to all privileges a d immunities of citizens in the several states.' As the applicability of this objection did not occur to us upon reading the record of the case, we have carefully examined the brief of the plaintiffs' counsel for light on the subject, but so far as we can understand the point is not urged. We are certainly unable to see how, or in what respect, any equality of privileges as citizens has been denied to the plaintiffs by the imposition of the tax. Their property was only taxed like that of all other persons, whether citizens of Louisiana or of any other state or country. Not the slightest discrimination was made.

The judgment of the supreme court of Louisiana is affirmed.

title: Brown v. Houston/Opinion of the Court


text: Talk:Brown v. Houston/Opinion of the Court

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


text:
Provident Savings Life Assur Soc of New York v. Ford

S. G. Clarke and E. B. Smith, for plaintiff in error.

Esek Cowen, for defendant in error.

BRADLEY, J.


text: Talk:Provident Savings Life Assur Soc of New York v. Ford


text:
Provident Savings Life Assur Soc of New York v. Ford/Opinion of the Court

This was an action brought in the supreme court of New York by Daniel W. Ford, the defendant in error, against the Provident Savings Life Assurance Company, the plaintiff in error, on a judgment recovered by one Charles Cochran against said company in the circuit court of the United States for the Northern district of Ohio, and assigned by Cochran to the plaintiff, Ford. The complaint contained, among others, the following averments, to-wit: 'That heretofore, and on or about the twelfth day of December, 1876, one Charles Cochran, then a resident of the state of Ohio, in due form of law, commenced an action in the United States circuit court for the Northern district of Ohio against the defendant in this action, praying for a judgment against said defendant for twenty thousand dollars' damages; that the defendant in said action and herein duly appeared in said action, and answered the petition or complaint of said Cochran, and after trial had of the issues thus joined, at which the defendant therein and herein duly appeared, judgment was duly directed, and subsequently, and on or about the tenth day of October, 1878, was duly entered and docketed in the office of the clerk of said United States circuit court for the said Northern district of Ohio, in favor of the said complainant, Cochran, and against the said The Provident Savings Life Assurance Society of New York, the defendant therein and herein, for the sum of three thousand three hundred five and 45-100 dollars damages and costs. * *  * This plaintiff further alleges that on or about the thirtieth day of November, 1878, the said Charles Cochran, the complainant in said action, and the then lawful holder and owner of said judgment, duly assigned and transferred to this plaintiff the said judgment, together with all his rights and claims thereunder and the interest due thereon.'

The defendant, in answer to the complaint, admitted that Cochran had taken some proceedings in the circuit court of the United States for the Northern district of Ohio, praying for judgment against the defendant; but averred that there was never any personal service of process, summons, or petition upon the defendant; and denied any knowledge of the recovery of any judgment as alleged in the complaint, or that Cochran had assigned the alleged judgment to Ford.

The cause came on for trial in February, 1879, but before the trial commenced the defendant presented a petition for the removal of the cause to the circuit court of the United States for the Norther district of New York, accompanied by a bond, which was approved by the court. The petition was as follows, to-wit:

'SUPREME COURT, RENSSELAER COUNTY.

'Daniel W. Ford against The Provident Savings Life Assurance     Society of New York.

'To said Supreme Court: Your petitioner respectfully shows to     this honorable court that it is the defendant in the above      action, and a corporation duly incorporated under the laws of      the state of New York, located and having its place of      business in the city of New York, and was such corporation      during all the times hereinafter mentioned, and was never      organized or incorporated under any law of the state of Ohio;      that the above action is brought to recover the amount of a      judgment alleged to have been obtained against your      petitioner in the state of Ohio, by one Charles Cochran, on      the tenth day of October, 1878, in the circuit court of the      United States for the Northern district of Ohio, for the sum      of three thousand three hundred and five dollars and      forty-five cents; that said Cochran then resided and still      resides in the state of Ohio; that this action is brought upon an alleged assignment of      said judgment to the plaintiff above named by said Cochran,      and is now pending and undetermined; that the matter in      dispute exceeds, exclusive of costs, the sum or value of five      hundred dollars, and involves questions arising under the      laws of the United States, to-wit, under section 739 of the      Revised Statutes of the United States. Said section forbids     'any suit to be brought by any original process before either      of the United States courts against an inhabitant of the      United States in any other district than that of which he is      an inhabitant, or in which he shall be found at the time of      serving the writ.' And your petitioner avers that the said      suit in Ohio was by original process, but that the said      process was never served personally upon the defendant in      said action in Ohio, or upon any of its officers, nor was the      defendant ever an inhabitant of Ohio or found therein; and,      as your petitioner verily believes, said circuit court never      acquired jurisdiction, and said judgment is invalid and void,      and that such want of personal service as aforesaid is      alleged in the answer in the present action, and that the      trial of this action will necessarily involve the      construction and effect of the said law of the United States,      to-wit, the said 739th section of the said United States      Revised Statutes. Secondly. And your petitioners further say,     as they are informed and verily believe, that the plaintiff      in this action is not the real party in interest therein, but      that said Cochran is the real party in interest, and that      said alleged assignment is merely colorable; that it was made      without any consideration and merely for the purpose of      prosecuting and collecting said judgment for the benefit of      said Cochran, and to avoid the necessity of said Cochran's      giving security for costs as a non-resident of this state,      and to embarrass and, if possible, prevent the transfer of      this action to the United States courts, and that the      controversy in this action is in reality and in substance      between the defendant and the said Charles Cochran, who are      citizens of different states; to-wit, the defendant is in law      a citizen of New York, and said Cochran a citizen of Ohio.'

The petition then concluded with the proffer of a bond and a prayer for removal of the cause in the usual form. The court refused to remove the cause, and the trial proceeded and resulted in a verdict and judgment for the plaintiff, which judgment is brought here by the present writ of error.

The question for our consideration is whether, upon the petition as presented, and the pleadings as they then stood, the application for removal should have been granted. The first ground of removal set forth in the petition was, in effect, that the defendant had a defense arising under section 739 of the Revised Statutes of the United States, which defense was that t e judgment sued on was absolutely void for want of jurisdiction in the court, because that section forbids any suit to be brought by any original process before either of the United States courts against an inhabitant of the United States in any other district than that of which he is an inhabitant, or in which he shall be found at the time of serving the writ; and it is averred that the suit was by original process, and that said process was never served personally upon the defendant in Ohio, (the defendant being a New York corporation,) or upon any of its officers there, and that the defendant was never an inhabitant of Ohio.

This allegation of a defense under the section referred to is clearly evasive and inconsequential. It is not necessary that a corporation should be an inhabitant of a state, or should be found therein, or should be personally served with process through its officers, in order that the circuit court of the United States sitting in that state may have jurisdiction of a personal suit against it. It is well known that corporations of the character of the defendant, desirous of doing business in a state other than that in which they have their domicile, are generally required to have an agent therein to receive service of process for them. This is exacted as a condition of their doing business in such state, and herein a corporation differs from an ordinary 'inhabitant' of a state, as that term is used in said section 739. This mode of acquiring personal jurisdiction of a foreign corporation applies to the federal courts as well as to the state courts. See Ex parte Schollenberger, 96 U.S. 369. Again, jurisdiction may also be acquired by the actual appearance of such a corporation to a suit brought against it in the United States circuit court. So that merely alleging that the defendant was not an inhabitant of Ohio, and was not found there, and was not personally served with process by itself or its officers, was not sufficient to raise a defense under section 739 of want of jurisdiction in the circuit court, without also negativing service of process on an agent of the defendant in Ohio, and the actual appearance of the defendant to the suit; for want of jurisdiction, set up to avoid a judgment, must be shown with the greatest certainty. The petition of removal is very careful not to negative these important contingencies, and that, in the face of the allegation of the complaint that the defendant did appear to the suit, and did answer the petition and appear at the trial. Hence we say that the allegation of a defense under the statute is clearly evasive and inconsequential, and we are not at all surprised to find that when the record of the Ohio suit was produced it showed that the defendant's agent was served with process, and that the defendant did actually appear to the suit and answer the petition, and did appear at and contest the trial, which lasted for a fortnight.

Reading the petition for removal, therefore, in the light of the pleadings on file when it was presented, we are satisfied that the first ground of removal set out therein was insufficient.

The second ground was, in effect, that the assignment of the judgment by Cochran to Ford was colorable merely, and that the real party in interest was Cochran, who was a citizen of Ohio, and as to whom the defendant, being a citizen of New York, was entitled to a removal of the cause, and should not be deprived of its right by the fraudulent assignment. The plain answer to this position is that the action was nevertheless Ford's, and as against him there was no right of removal. If he was a mere tool of Cochran, and if the latter was the person really interested in the cause, the action could not have been sustained, for the Code of Procedure of New York declares that 'every action must be prosecuted in the name of the real party in interest,' except in a few cases not including this. And not alone in New York, but anywhere, if it could be shown that the assignment was fraudulent as ag inst the defendant, it would be void, and this fact would be a defense to the action brought by the assignee. We know of no instance where the want of consideration in a transfer, or a colorable transfer, of a right of action from a person against whom the defendant would have a right of removal to a person against whom he would not have such a right, has been held a good ground for removing a cause from a state to a federal court. Where an assignment of a cause of action is colorably made for the purpose of giving jurisdiction to the United States court, the fifth section of the act of congress of March 3, 1875, relating to removals, has now given to the circuit courts power to dismiss or remand the cause at any time when the fact is made to appear. And by analogy to this law, it may, perhaps, be a good defense to an action in a state court to show that a colorable assignment has been made to deprive the United States court of jurisdiction; but, as before said, it would be a defense to the action, and not a ground of removing that cause into the federal court. We think, therefore, the second ground of removal was also insufficient.

It is suggested, however, that a suit on a judgment recovered in a United States court is necessarily a suit arising under the laws of the United States, as much so as if the plaintiff or defendant were a corporation of the United States; and hence that such a suit is removable under the act of March 3, 1875. It is observable that the removal of the cause was not claimed on any such broad ground as this; but, so far as the character of the case was concerned, only on the ground that the defendant had a defense under section 739 of the Revised Statutes, specifying what the defense was; and we have already shown that that ground of removal, as stated in the petition, was insufficient. But, conceding that the defendant is now entitled to take its position on the broader ground referred to, is it tenable and sufficient for the purpose?

What is a judgment, but a security of record showing a debt due from one person to another? It is as much a mere security as a treasury note, or a bond of the United States. If A. brings an action against B., trover or otherwise, for the withholding of such securities, it is not therefore a case arising under the laws of the United States, although the whole value of the securities depends upon the fact of their being the obligations of the United States. So, if A. have title to land by patent of the United States and brings an action against B. for trespass or waste, committed by cutting timber, or by mining and carrying away precious ores, or the like, it is not therefore a case arising under the laws of the United States. It is simply the case of an ordinary right of property sought to be enforced. A suit on a judgment is nothing more, unless some question is raised in the case (as might be raised in any of the cases specified) distinctly involving the laws of the United States,-such a question, for example, as was ineffectually attempted to be raised by the defendant in this case. If such a question were raised, then it is conceded it would be a case arising under the laws of the United States.

These considerations show a wide distinction, as it seems to us, between the case of a suit merely on a judgment of a United States court, and that of a suit by or against a United States corporation; which latter; according to the masterly analysis of Chief Justice MARSHALL in Osborn v. Bank, 9 Wheat. 738, is pervaded from its origin to its close by United States law and United States authority.

Without pursuing the subject further, we conclude with expressing our opinion that this last ground of removal, like those already considered, was insufficient.

The judgment of the supreme court of New York is affirmed.


text: Talk:Provident Savings Life Assur Soc of New York v. Ford/Opinion of the Court


text:
Reggel

This is an appeal from the judgment upon habeas corpus, of the Third judicial district court of Utah, remanding the appellant to the custody of the marshal of the United States, by whom he had been arrested. The arrest was made under the authority of a warrant of the governor of Utah, which recited that it had been represented by the governor of Pennsylvania that Louis Reggel stood charged in that commonwealth with the crime of obtaining goods by false pretenses from Daniel Myers and Charles Goodman; that he had fled from the justice of that commonwealth, and had taken refuge in the territory of Utah. It then proceeded: 'And whereas, said representation and demand are accompanied by an indictment found against said Reggel by the grand inquest of the said state of Pennsylvania inqui ing for the city and county of Philadelphia, in and before the court of quarter sessions of the peace for the said city and county of Philadelphia, March sessions, 1882, whereby said Louis Reggel is charged with the said crime, and an affidavit taken before a notary public of said state showing said Reggel's flight from said state to and refuge in said territory, and also the statute laws of said state defining and making said acts of said Reggel a crime, and which said indictment, affidavit, and laws are certified by said governor of Pennsylvania to be duly authenticated: you are therefore required to arrest the said Louis Reggel,' etc.

The evidence laid before the governor of Utah was entirely documentary, and embraced the following papers:

(1) The requisition, in the customary form, of the governor of Pennsylvania, requesting the apprehension of Reggel, and his delivery to the agent of Pennsylvania, and to which was annexed a copy of the indictment and other papers, certified by him to be authentic.

(2) A duly-certified copy of the indictment referred to in the foregoing requisition, as follows:

'IN THE COURT OF QUARTER SESSIONS OF THE PEACE FOR THE CITY AND COUNTY OF PHILADELPHIA. MARCH SESSIONS, 1882.

'City and County of Philadelphia, ss.: The grand inquest of the commonwealth of Pennsylvania, inquiring for the city and county of Philadelphia, upon their respective oaths and affirmations, do present Louis Reggel, late of said county, on the thirteenth day of August, in the year of our Lord one thousand eight hundred and eighty-one, at the county aforesaid, and within the jurisdiction of this court, unlawfully and willfully devising and intending to cheat and defraud Daniel Myers and Charles Goodman of their goods, moneys, chattels, and property, unlawfully, did falsely and designedly pretend to the said Daniel Myers and Charles Goodman that he, the said Louis Reggel, was then and there the owner in his own right of a large stock of goods in his business as a merchant of Salt Lake City, in the territory of Utah, of the value of thirty-five thousand dollars, and that he did not then and there owe to any person a single dollar on account of said goods and merchandise, or for money borrowed; and also then and there unlawfully did falsely and designedly pretend to the said Daniel Myers and Charles Goodman that he was then and there the owner in his own right of a certain lot of ground, containing thereon a store building, wherein he carried on his business, at Salt Lake City, in the territory of Utah; and that he was also then and there the owner in his own right of a certain other lot of ground, containing thereon a certain dwelling-house, wherein he then and there resided, at Salt Lake City, in the territory of Utah; and he, the said Louis Reggel, then and there unlawfully and falsely pretended to said Daniel Myers and Charles Goodman that said two houses and two lots were then and there together of the value of forty thousand dollars; and that said two lots and their improvements were then and there free from all incumbrance; whereas, in truth and in fact, the said Louis Reggel was not then and there the owner in his own right of goods and merchandise in his business of the value of thirty-five thousand dollars, at Salt Lake City, in the territory of Utah, all paid for, and free of debt for money borrowed,-the said Louis Reggel being then and there in the possession of and owner of a stock of goods and merchandise in his business at Salt Lake City, in the territory of Utah, of the value of only about six thousand dollars, instead of the value of thirty-five thousand dollars, as then and there unlawfully, falsely, and designedly pretended by him, the said Louis Reggel; and the said Louis Reggel was then and there indebted in the sum of $3,500 to the banking-house of McCormick & Co., at Salt Lake City, in the territory of Utah, for money drawn from said banking-house; and whereas, in truth and in fact, the said Louis Reggel was not then and there the owner in his own right of a certain lot of ground, containing thereon a store building, wherein he then and there carried on his business, at Salt Lake City, in the territory of Utah, and a certain other lot of ground, containing thereon a dwelling-house, wherein he then and there resided, at Salt Lake City aforesaid, together of the value of forty thousand dollars, clear of all incumbrances; that the said two lots of ground and the improvements and appurtenances thereunto belonging, were, by the said Louis Reggel, on the fourteenth day of January, in the year of our Lord one thousand eight hundred and eighty, by deed, duly recorded in the office for the recording of deeds for Salt Lake county, in the territory of Utah, granted, sold, conveyed, and confirmed unto Robert Harkness and L. R. Jones, of said Salt Lake City, in the territory of Utah, and the title to the said two lots of ground and improvements and appurtenances thereunto belonging, was, at the time of the making of said unlawful, false, and fraudulent pretenses by the said Louis Reggel, at the county aforesaid, in the said Robert Harkness and the said L. R. Jones, and not in the said Louis Reggel; and the said Louis Reggel then and there well knew the said pretenses to be unlawful, fraudulent, and false. Whereupon the said Daniel Myers and Charles Goodman, believing the said false representations and pretenses then and there made by the said Louis Reggel, sold and delivered to the said Louis Reggel, on a credit of four months, [here follows a description and statement of the value of said goods, chattels, and property alleged to have been obtained under false pretenses;] which said goods and chattels and property the said Louis Reggel did then and there unlawfully obtain from the said Daniel Myers and Charles Goodman, with intent to cheat and defraud the said Daniel Myers and Charles Goodman, to the great damage of the said Daniel Myers and Charles Goodman, contrary to the form of the act of the general assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.

'GEORGE S. GRAHAM,

'District Attorney.'

(3) Duly-certified copies of certain provisions of the penal laws of Pennsylvania, as follows:

'Every indictment shall be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the act of the assembly prohibiting the crime and prescribing the punishment, if any such there be; or, if at common law, so plainly that the nature of the offense charged may be easily understood by the jury. Every objection to any indictment for any formal defect apparent on the face thereof shall be taken by demurrer or on motion to quash such indictment before the jury shall be sworn, and not afterwards; and every court before whom any such objection shall be taken for any formal defect may, if it be thought necessary, cause the indictment to be forthwith amended in such particular by the clerk or other officer of the court, and thereupon the trial shall proceed as if no such defect appeared.' 1 Brightly's Purd. Dig. 347, 348; Act March 31, 1860.

'If any person shall, by any false pretense, obtain the signature of any person to any written instrument, or shall obtain from any other person any other chattel, money, or valuable security, with intent to cheat and defraud any person of the same, every such offender shall be guilty of a misdemeanor, and, on conviction, be sentenced to pay a fine not exceeding five hundred dollars, and undergo an imprisonment not exceeding three years: provided, always, that if upon the trial of any person indicted for such misdemeanor it shall be proved that he obtained the property in question in such manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts.' Id. 347, 348; Act arch 31, 1860.

(4) An affidavit by Frederick Gentner, as follows:

'Commonwealth of Penna. v. Louis Reggel.

'Frederick Gentner, being duly sworn according to law, deposes and says: The grand jury of the March sessions, of the city and county of Philadelphia, found a true bill of indictment against Louis Reggel, charging him with the crime of false pretenses, and that the said Louis Reggel is a fugitive from justice, and now in Salt Lake City, Utah territory.

'FREDERICK GENTNER.

'Sworn to and subscribed to this tenth day of April, A. D. 1882.

{Seal of Court Quarter Sessions, County Philadelphia.}

'ALLISON HENNESEY,

'Per Clerk.

'Indorsed: Commonwealth v. Louis Reggel.' The foregoing constituted the evidence submitted to the governor of Utah, on which his warrant for the arrest of appellant was granted. From the order denying the application of the petitioner to be discharged and remanding him to the custody of the marshal, an appeal was allowed and perfected,-the petitioner, pending the appeal, being placed under bond to surrender himself in execution of the judgment, if it should be affirmed, modified, or dismissed, and obey all orders made herein by this court.

Arthur Brown, for appellant.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

title: Reggel


text: Talk:Reggel

title: Talk:Reggel


text:
Page:Book of the Riviera.djvu/20

4 the Babylonish captivity of near a hundred years; she—strangled finally whilst at her prayers.

The Estérel, now clothed in forest, reminds us of how Charles V. advancing through Provence to claim it as his own, hampered by peasants in this group of mountains, set the forests on fire, and for weeks converted the district into one great sea of flame around the blood-red rocks. Marseilles recalls the horrors of the Revolution, and the roar of that song, smelling of blood, to which it gave its name. At Toulon, Napoleon first drew attention to his military abilities; at S. Raphael he landed on his return from Egypt, on his way to Paris, to the 18th Brumaire, to the Consulate, to the Empire; and here also he embarked for Elba after the battle of Leipzig. But leaving history, let us look at what Nature affords of interest. Geologically that coast is a great picture book of successions of deposits and of convulsions. There are to be found recent conglomerates, chalk, limestone, porphyry, new red sandstone, mica schist, granite. The Estérel porphyry is red as if on fire, seen in the evening sun. The mica schist of the Montagnes des Maures strews about its dust, so shining, so golden, that in 1792 a representative of the Department went up to Paris with a handful, to exhibit to the Convention as a token of the ineptitude of the Administration of Var, that trampled under foot treasures sufficient to defray the cost of a war against all the kings of the earth.

The masses of limestone are cleft with clus, gorges through which the rivers thunder, and foux springs of living water bursting out of the bowels of the mountains.

title: Page:Book of the Riviera.djvu/20


text:
User:Blue-Haired Lawyer/vector.js

// To make this script work you need to add the following to you style sheet (vector.css): // ++ //  |   #mw-panel { visibility: hidden !important; }                     | // |   #mw-head-base { margin-left: 0 !important; }                     | // |   #content { margin-left: 0 !important; }                          | // |   #left-navigation { margin-left: 1em !important; }                | // |   #footer { margin-left: 0 !important; }                           | // ++ // ie or firefox var whichText = document.body.textContent ? 'textContent' : 'innerText';

if ( mw.config.get( 'skin' ) == 'vector' ) { if (document.readyState === "complete") { initWideSkin; } else { $( initWideSkin ); } }

// set viewport for mobile devices myView = document.createElement("meta"); myView.setAttribute("name", "viewport"); myView.setAttribute("content", "width=device-width, initial-scale=1.0, minimal-scale=1.0, maximal-scale=1.0"); document.getElementsByTagName("head")[0].appendChild(myView);

// Insert head banner myDiv = document.createElement("DIV"); myLink = document.createElement("A"); myDiv.appendChild(myLink);

myDiv.id = 'myNewBanner'; myDiv.setAttribute("style", "position: absolute; top: 5px; left: 15px; font: 31pt Times; font-variant: small-caps; z-index: 999999;"); myDiv.className = 'noprint';

myLink.href = mw.config.get( 'wgArticlePath' ).replace('$1', ''); myLink.setAttribute("style", "color: black; text-decoration: none;"); var siteName = mw.config.get( 'wgSiteName' ); if(siteName == 'Wikipedia') { siteName = 'WikipediA'; } myLink.innerHTML = siteName; document.getElementById("mw-head").appendChild(myDiv);

function initWideSkin { // place certain (less used) links in the footer transferChildren("#t-permalink A, #t-cite A, #p-coll-print_export A", "#footer-places");

// move toolbox to drop down menu // do this before creating icon menu transferChildren("#p-tb LI A", "#p-cactions ul");

// Make visible document.getElementById("p-cactions").style.display = 'block';

// language links var langChildren = document.querySelectorAll("#p-lang UL A"); if(langChildren !== null && langChildren.length > 0) { var addLinks = document.querySelector('.wbc-editpage > a'); if(addLinks !== null) { addLinks.innerHTML = 'Add language links'; }

//list var langList = document.createElement("UL"); langList.id = 'langList'; langList.style.fontSize = "0.8em";

// interwiki list transferChildren(langChildren, langList);

// language banner var lbanner = document.createElement("DIV"); lbanner.id = "lbanner"; lbanner.className = "catlinks noprint"; lbanner.appendChild(langList);

document.getElementById("content").appendChild(lbanner); }

// Create a wiki menu for navigation and interaction links // node.cloneNode(true) doesn't copy css stuff properly var vectorMenu = document.getElementById('p-cactions'); var newMenu = document.createElement("NAV"); newMenu.id = 'faviconMenu'; newMenu.innerHTML = vectorMenu.innerHTML; newMenu.className = vectorMenu.className; // Change ids and clear content newMenu.querySelector('h3').id = 'p-favicon-label'; newMenu.querySelector('span').innerHTML = 'W'; newMenu.querySelector('ul').innerHTML = '';

// Insert newMenu var vectorMenu = document.getElementById('p-cactions'); document.getElementById('right-navigation').insertBefore(newMenu, vectorMenu);

// add menu items (except help) transferChildren("#mw-panel .portal LI:not(#n-help) A", "#faviconMenu ul");

// Place help at end of icon menu transferChildren("#n-help A", "#faviconMenu ul");

// set some css for good and featured articles var style = document.createElement('style'); var head = document.getElementsByTagName('head')[0]; var css = document.createTextNode( "#lbanner .GA:before { content: url('//upload.wikimedia.org/wikipedia/commons/4/42/Monobook-bullet-ga.png') ' '; } " ); css.appendData( "#lbanner .FA:before { content: url('//upload.wikimedia.org/wikipedia/en/d/d4/Monobook-bullet-star.png') ' '; }" ); style.appendChild(css); head.appendChild(style); }

function transferChildren(from, to) { if(typeof from == 'string') { from = document.querySelectorAll(from); }

if(typeof to == 'string') { to = document.querySelector(to); }

var eles = []; for(var i = from.length - 1; i > -1; i--) { var a = from[i].parentNode.removeChild(from[i]);

var li = document.createElement("LI"); li.className = 'noprint'; li.appendChild(a); eles.unshift(li); }	while(eles.length > 0) { to.appendChild(eles.shift); } }

title: User:Blue-Haired Lawyer/vector.js


text: Page:Book of the Riviera.djvu/21

title: Page:Book of the Riviera.djvu/21


text: Page:Book of the Riviera.djvu/22

title: Page:Book of the Riviera.djvu/22


text:
Page:Book of the Riviera.djvu/23

Rh Consider what the variety of geologic formation implies: an almost infinite variety of plants; moreover, owing to the difference of altitudes, the flora reaches in a chromatic scale from the fringe of the Alpine snows to the burning sands by the seas. In one little commune, it is estimated that there are more varieties to be found than in the whole of Ireland. But the visitor to the seaboard—the French Côte d'azur and the Italian Riviera—returns home after a winter sojourn there with his mind stored with pictures of palms, lemons, oranges, agaves, aloes, umbrella pines, eucalyptus, mimosa, carob-trees, and olives. This is the vegetation that characterises the Riviera, that distinguishes it from vegetation elsewhere; but, although these trees and shrubs abound, and do form a dominant feature in the scenery, yet every one of them is a foreign importation, and the indigenous plants must be sought in mountain districts, away from towns, and high-roads, and railways.

These strangers from Africa, Asia, Australia and South America have occupied the best land and the warmest corners, just as of old the Greek and Roman colonists shouldered out the native tribes, and forced them to withdraw amidst the mountains.

The traveller approaching the Riviera by the line from Lyons, after passing Valence, enters a valley that narrows, through which rolls the turbid flood of the Rhone. Presently the sides become steeper, higher, more rocky, and draw closer; on the right appears Viviers, dominated by its cathedral and tower, square below, octagonal above, and here the Rhone becomes more rapid as it enters the Robinet de Donzère, between calcareous rocks full of caves and rifts. Then, all at

title: Page:Book of the Riviera.djvu/23


text:
Page:Book of the Riviera.djvu/24

6 once, the line passes out of the rocky portal, and the traveller enters on another scene altogether, the vast triangular plain limited by the Alps on one side and the Cevennes on the other, and has the Mediterranean as its base. To this point at one time extended a mighty gulf, seventy miles from the present coast-line at the mouth of the Rhone. Against the friable limestone cliffs, the waves lapped and leaped. But at some unknown time a cataclysm occurred. The Alps were shaken, as we shake a tree to bring down its fruit, and the Rhone and the Durance, swollen to an enormous volume, rolled down masses of debris into this gulf and choked it. The Durance formed its own little crau along the north of the chain of the Alpines, and the Rhone the far larger crau of Aries, the pebbles of which all come from the Alps, in which the river takes it rise. But, in fact, the present craus represent but a small portion of the vast mass of rubbish brought down. They are just that part which in historic times was not overlaid with soil. When this period was passed, the rivers relaxed their force, and repented of the waste they had made, and proceeded to chew into mud the pebbles they rolled along, and, rambling over the level stretches of rubble, to deposit upon it a fertilising epidermis. Then, in modern times, the engineers came and banked in the Rhone, to restrain its vagaries, so that now it pours its precious mud into the sea, and yearly projects its ugly muzzle further forwards. When we passed the rocky portal, we passed also from the climate of the North into that of the South, but not to that climate without hesitations. For the sun beating on the level land heats the pebble bed, so that the air above it quivers as over a lime-kiln,

title: Page:Book of the Riviera.djvu/24


text: Page:Book of the Riviera.djvu/25

title: Page:Book of the Riviera.djvu/25


text: Page:Book of the Riviera.djvu/26

title: Page:Book of the Riviera.djvu/26


text:
Page:Book of the Riviera.djvu/27

Rh and, rising, is replaced by a rush of icy winds from the Alps. This downrush is the dreaded Mistral. It was a saying of old:—

The Parliament is gone, but the Mistral still rages, and the Durance still overflows and devastates.

The plain, where cultivated, is lined and cross-lined as with Indian ink. These lines, and cross-lines, are formed of cypress, veritable walls of defence, thrown up against the wind. When the Mistral rages, they bow as whips, and the water of the lagoons is licked up and spat at the walls of the sparsely scattered villages. Here and there rises the olive, like smoke from a lowly cottage. It shrinks from the bite of the frost and the lash of the wind, and attains its proper height and vigour only as we near the sea; and is in the utmost luxuriance between Solliès Pont and Le Luc, growing on the rich new red sandstone, that skirts the Montagnes des Maures. Presently we come on the lemon, the orange, glowing golden, oleanders in every gully, aloes ("God's candelabra"), figs, mulberries, pines with outspread heads, like extended umbrellas, as the cypress represents one folded; cork trees, palms with tufted heads; all seen through an atmosphere of marvellous clearness, over-arched by a sky as blue as that of Italy, and with—as horizon—the deeper, the indigo blue, of the sea.

On leaving Arles, the train takes the bit between its teeth and races over the crau, straight as an arrow, between lines of cypresses. It is just possible to catch glimpses to the north, between the cypresses, of a chain

title: Page:Book of the Riviera.djvu/27


text:
Page:Book of the Riviera.djvu/28

8 of hills of opalescent hue. That chain, Les Alpines, gives its direction to the Durance. This river lent its aid to Brother Rhone to form this rubble plain, the Campus lapideus of the Romans, the modern crau. This was a desert over which the mirage alternated with the Mistral, till Adam de Craponne, in the sixteenth century, brought a canal from the Durance to water the stony land, and since then, little by little, the desert is being reclaimed. This vast stony plain was a puzzle to the ancients, and Æschylus, who flourished B.C. 472, tells us that Heracles, arriving at this plain to fight the Ligurians, and being without weapons, Heaven came to his aid and poured down great stones out of the sky against his foes. This is much like the account in Joshua of the battle against the Kings in the plain of Esdraelon. At length, at Miramas, we escape from between the espalier cypresses and see that the distant chain has drawn nearer, that it has lost its mother-of-pearl tints, and has assumed a ghastly whiteness. Then we dash among these cretaceous rocks, desolate, forbidding and dead. They will attend us from Marseilles to Toulon. The cretaceous sea bed, that once occupied so vast an area, has been lifted into downs and mountains, and stretched from Dorset and Wiltshire to Dover. We catch a glimpse of it at Amiens. A nodule that has defied erosion sustains the town and cathedral of Laon. It underlies the Champagne country. It asserts itself sullenly and resolutely in Provence, where it overlies the Jura limestone, and is almost indistinguishable from it at the junction, for it has the same inclination, the same fossils, and the same mineralogical constituents. In England we are accustomed to the soft skin of thymy turf that covers the chalk on our downs. Of this

title: Page:Book of the Riviera.djvu/28


text:
Page:Book of the Riviera.djvu/29

Rh there is none in Provence. The fierce sun forbids it. Consequently the rock is naked and cadaverously white, but scantily sprinkled over with stunted pines. The Jura limestone is the great pièce de resistance in Provence: it is sweeter in colour than the chalk, ranging from cream white to buff and salmon; it has not the dead pallor of the chalk. Any one who has gone down the Cañon of the Tarn knows what exquisite gradations and harmonies of tone are to be found in Jura limestone. Here this formation stands up as a wall to the North, a mighty screen, sheltering the Riviera from the boreal winds. It rises precipitously to a plateau that is bald and desolate, but which is rent by ravines of great majesty and beauty, through which rush the waters from the snowy Alps. The chalk and the limestone are fissured, and allow the water flowing over their surface to filter down and issue forth in the valleys, rendering these fertile and green, whereas the plateaux are bare. The plateaux rise to the height of 3,000 or 4,500 feet.

The tract between the mountain wall of limestone and the sea is made up of a molass of rolled fragments of the rock in a paste of mud. This forms hills of considerable height, and this also is sawn through here and there by rills, or washed out by rivers. Altogether different in character is the mass of the Montagnes des Maures, which is an uplifted body of granite and schist. Altogether different again is the Estérel, a protruded region of red porphyry. About these protruded masses may be seen the new red sandstone. When we have mastered this—and it is simple enough

title: Page:Book of the Riviera.djvu/29


text:
Page:Book of the Riviera.djvu/30

10 to remember—we know the character of the geology from the mouths of the Rhone to Albenga.

"The colouring of Provence," says Mr. Hammerton, "is pretty in spring, when the fields are still green and the mulberry trees are in leaf, and the dark cypress and grey olive are only graver notes in the brightness, while the desolation of the stony hills is prevented from becoming oppressive by the freshness of the foreground; but when the hot sun and the dry wind have scorched every remnant of verdure, when any grass that remains is merely ungathered hay, and you have nothing but flying dust and blinding light, then the great truth is borne in upon you that it is Rain which is the true colour magician, though he may veil himself in a vesture of grey cloud."

In winter and early spring it is that the coast is enjoyable. In winter there is the evergreen of the palms, the olive, the ilex, the cork tree, the carob, the orange and lemon and myrtle. Indeed, in the Montagnes des Maures and in the Estérel, it is always spring. The resident in winter can hardly understand the structure of the towns, with streets at widest nine feet, and the houses running up to five and six storeys; but this is due to necessity. The object is double: by making the streets so narrow, the sun is excluded, and the sun in Provence is not sought as with us in England; and secondly, these narrow thoroughfares induce a draught down them. In almost every town the contrast between the new and the old is most marked, for the occupants of the new town reside there for the winter only, and therefore court the sun; whereas the inhabitants of the old town dwell in it all the year round, and consequently endeavour to obtain all protection possible from the sun. But this shyness of basking in the sun was not

title: Page:Book of the Riviera.djvu/30


text:
Page:Book of the Riviera.djvu/31

Rh the sole reason why the streets were made so narrow. The old towns and even villages were crowded within walls; a girdle of bulwark surrounded them, they had no space for expansion except upwards. What Mr. Hammerton says of French towns applies especially to those of Provence:—

"France has an immense advantage over England in the better harmony between her cities and towns, and the country where they are placed. In England it rarely happens that a town adds to the beauty of a landscape; in France it often does so. In England there are many towns that are quite absolutely and hideously destructive of landscape beauty; in France there are very few. The consequence is that in France a lover of landscape does not feel that dislike to human interference which he so easily acquires in England, and which in some of our best writers, who feel most intensely and acutely, has become positive hatred and exasperation."

It was fear of the Moors and the pirates of the Mediterranean which drove the inhabitants of the seacoast to build their towns on the rocks, high uplifted, walled about and dominated by towers. I will now give a hasty sketch of the early history of Provence—so far as goes to explain the nature of its population. The earliest occupants of the seaboard named in history are the Ligurians. The Gulf of Lyons takes its name from them, in a contracted form. Who these Ligurians were, to what stock they belonged, is not known; but as there are megalithic monuments in the country, covered avenues at Castelet, near Arles, dolmens at Draguignan and Saint Vallier, a menhir at Cabasse, we may perhaps conclude with some probability

title: Page:Book of the Riviera.djvu/31


text:
Page:Book of the Riviera.djvu/32

12 that they were a branch of that great Ivernian race which has covered all Western Europe with these mysterious remains. At an early period, the Phœnicians established trading depôts at Marseilles, Nice, and elsewhere along the coast. Monaco was dedicated to their god, Melkarth, whose equivalent was the Greek Heracles, the Roman Hercules. The story of Heracles fighting the gigantic Ligurians on the crau, assisted by Zeus pouring down a hail of pebbles from heaven, is merely a fabulous rendering of the historic fact that the Phœnician settlers had to fight the Ligurians, represented as giants, not because they were of monstrous size, but because of their huge stone monuments. The Phœnicians drew a belt of colonies and trading stations along the Mediterranean, and were masters of the commerce. The tin of Britain, the amber of the Baltic, passed through their hands, and their great emporium was Marseilles. It was they who constructed the Heraclean Road, afterwards restored and regulated by the Romans, that connected all their settlements from the Italian frontier to the Straits of Gibraltar. They have left traces of their sojourn in place names; in their time, Saint Gilles, then Heraclea, was a port at the mouth of the Rhone; now it is thirty miles inland. Herculea Caccabaria, now Saint Tropez, recalls Kaccabe, the earliest name of Carthage. One of the islets outside the harbour of Marseilles bore the name of Phœnice. This energetic people conveyed the ivory of Africa to Europe, worked the lead mines of the Eastern Pyrenees, and sent the coral and purple of the Mediterranean and the bronze of the Po basin over Northern Europe. The prosperity of Tyre depended on its trade.

title: Page:Book of the Riviera.djvu/32


text:
Page:Book of the Riviera.djvu/33

Rh "Inventors of alphabetical writing, of calculation, and of astronomy, essential to them in their distant navigations, skilful architects, gold-workers, jewellers, engravers, weavers, dyers, miners, founders, glass-workers, coiners, past-masters of all industries, wonderful sailors, intrepid tradesmen, the Phœnicians, by their incomparable activity, held the old world in their grip ; and from the Persian Gulf to the Isles of Britain, either by their caravans or by their ships, were everywhere present as buyers or sellers."

Archæological discoveries come to substantiate the conclusions arrived at from scanty allusions by the ancients. The Carthaginians had succeeded to the trade of Tyre; but Carthage was a daughter of Tyre. At Marseilles have been found forty-seven little stone chapels or shrines of Melkarth, seated under an arch, either with his hands raised, sustaining the arch, or with them resting on his knees; and these are identical in character with others found at Tyre, Sidon, and Carthage. Nor is this all. An inscription has been unearthed, also at Marseilles, containing a veritable Levitical code for the worship of Baal, regulating the emoluments of his priests. In the year B.C. 542 a fleet of Phocœans came from Asia Minor, flying from the Medes; and the citizens of Phocœa, abandoning their ancient homes, settled along the coast of the Riviera. Aries, Marseilles, Nice—all the towns became Greek. It was they who introduced into the land of their adoption the vine and the olive. They acquired the trade of the Mediterranean after the fall of Carthage, B.C. 146. The Greeks of the coast kept on good terms with Rome. They it was who warned Rome of the approach

title: Page:Book of the Riviera.djvu/33


text:
Page:Book of the Riviera.djvu/34

14 of Hannibal; and when the Ambrons and Teutons poured down a mighty host with purpose to devastate Italy, the Phocœan city of Marseilles furnished Marius with a contingent, and provisioned his camp at the junction of the Durance with the Rhone. The Romans were desirous of maintaining good relations with the Greek colonies, and when the native Ligurians menaced Nice and Antibes, they sent an army to their aid, and having defeated the barbarians, gave up the conquered territory to the Greeks. In B.C. 125, Lucius Sextius Calvinus attacked the native tribes in their fastness, defeated them, and founded the town of Aquæ Sextiæ, about the hot springs that rise there—now Aix. The Ligurians were driven to the mountains and not suffered to approach the sea coast, which was handed over entirely to the Greeks of Marseilles.

So highly stood the credit of Marseilles, that when, after the conclusion of the Asiatic War, the Senate of Rome had decreed the destruction of Phocœa, they listened to a deputation from Marseilles, pleading for the mother city, and revoked the sentence. Meanwhile, the Gauls had been pressing south, and the unfortunate Ligurians, limited to the stony plateaux and the slopes of the Alps, were nipped between them and the Greeks and Romans along the coast. They made terms with the Gauls and formed a Celto-Ligurian league. They were defeated, and the Senate of Rome decreed the annexation of all the territory from the Rhone to the Alps, to constitute thereof a province. Thenceforth the cities and slopes of the coast became places of residence for wealthy Romans, who had there villas and gardens. The towns were supplied with amphitheatres and baths,

title: Page:Book of the Riviera.djvu/34


text:
Page:Dictionary of National Biography volume 06.djvu/214

 Braithwaite had, however, previously done good service at the burning of the English Opera House in 1830, at the destruction of the Argyle Rooms 1830, and at the conflagration of the Houses of Parliament in 1834. It threw two tons of water per minute, burnt coke, and got up steam in about twenty minutes; but it was looked upon with so much jealousy by the fire brigade of the day that the inventor had to give it up. He, however, soon constructed four others of larger dimensions, two of which, in Berlin and Liverpool respectively, gave great satisfaction. In 1833 he built the caloric engine in conjunction with Captain Ericsson. Next year he ceased to take an active part in the management of the engine works in the New Road, but began to practise as a civil engineer for public works, and was largely consulted at home and abroad, particularly as to the capabilities of and probable improvements in locomotive engines. In 1834 the Eastern Counties railway was projected and laid out by him in conjunction with Mr. Charles Blacker Vignoles. The act of incorporation was passed in 1836, and he was soon after appointed engineer-in-chief for its construction. He adopted a five-feet gauge, and upon that gauge the line was constructed as far as Colchester, the works, however, being made wide enough for a seven-feet gauge. On the recommendation of Robert Stephenson it was subsequently altered to the national gauge of 4 feet 8 inches. In after years Braithwaite advocated a still narrower gauge. He ceased to be officially connected with the Eastern Counties railway on 28 May 1843. Whilst engineer to that company he introduced on the works the American excavating machine and the American steam locomotive pile-driving machine. He was joint founder of the 'Railway Times,' which he started in conjunction with Mr. J. C. Robertson as editor in 1837, and he continued sole proprietor till 1845. He undertook the preparation of plans for the direct Exeter railway, but the panic of the period, and his connection with some commercial speculations, necessitated the winding up of his affairs (1845). Braithwaite had, in 1844, a share in a patent for extracting oil from bituminous shale, and works were erected near Weymouth which, but for his difficulties, might have been successful. Some years before, 1836-8, Captain Ericsson and he had fitted up an ordinary canal boat with a screw propeller, which started from London along the canals to Manchester on 28 June 1838, returning by the way of Oxford and the Thames to London, being the first and last steamboat that has navigated the whole distance on those waters. The experiment was abandoned on account of the deficiency of water in the canals and the completion of the railway system, which diverted the paying traffic. In 1844, and again in 1846, he was much on the continent surveying lines of railway in France, and on his return he was employed to survey Langston harbour in 1850, and to build the Brentford brewery in 1851. From that year he was principally engaged in chamber practice, and acted as consulting engineer, advising on most of the important mechanical questions of the day for patents and other purposes. Braithwaite was elected a fellow of the Society of Antiquaries in 1819, a member of the Institution of Civil Engineers on 13 Feb. 1838, and at the time of his death he was one of the oldest members of the Society of Arts, having been elected into that body in the year 1819; he was also a life governor of seventeen charitable institutions.

He died very suddenly at 8 Clifton Gardens, Paddington, on 25 Sept. 1870, and his remains were interred in Kensal Green cemetery. He was the author of two publications entitled:
 * 1) 'Supplement to Captain Sir John Ross's Narrative of a second voyage in search of a North-West Passage, containing the suppressed facts necessary to an understanding of the cause of the failure of the steam machinery of the Victory,' 1835. To this work Sir J. Ross published a reply in the same year.
 * 2) 'Guideway Steam Agriculture, by P. A. Halkett, with a Report by J. Braithwaite,' 1857.

 BRAITHWAITE, RICHARD. [See ]  BRAKELONDE, JOCELIN. [See .]  BRAMAH, JOSEPH (1748–1814), inventor, was born in 1748 at Stainborough, a village near Barnsley in Yorkshire. He was the son of a farmer, and was, according to Dr. Smiles, originally intended to follow the plough, but an accident which unfitted him for farm work led to his being apprenticed to the village carpenter. His mechanical talents soon showed themselves, and at the end of his apprenticeship he went to London, where, after working for some time at a cabinetmaker's, he set up in the trade on his own account. Being employed to fit up some water-closets on the method invented by Mr.


text:
Page:Book of the Riviera.djvu/35

Rh Theatres they possessed before, under the Greeks; but the brutal pleasures of the slaughter of men was an introduction by the Romans. The remains of these structures at Nîmes, Aries, Fréjus, Cimiez, testify to the crowds that must have delighted in these horrible spectacles. That of Nîmes would contain from 17,000 to 23,000 spectators; that of Aries 25,000; that of Fréjus an equal number.

Wherever the Roman empire extended, there may be seen the same huge structures, almost invariable in plan, and all devoted to pleasure and luxury. The forum, the temples, sink into insignificance beside the amphitheatre, the baths, and the circus. Citizens of the empire lived for their ease and amusements, and concerned themselves little about public business. In the old days of the Republic, the interests, the contests, of the people were forensic. The forum was their place of assembly. But with the empire all was changed. Public transaction of business ceased, the despotic Cæsar provided for, directed, governed all, Roman citizens and subject peoples alike. They were left with nothing to occupy them, and they rushed to orgies of blood. Thus these vast erections tell us, more than the words of any historian, how great was the depravity of the Roman character. But with the fifth century this condition of affairs came to an end. The last time that the circus of Aries was used for races was in 462. The theatre there was wrecked by a deacon called Cyril in 446. At the head of a mob he burst into it, and smashed the loveliest statues of the Greek chisel, and mutilated every article of decoration therein. The stage was garnished with elegant colonnets; all were thrown down and broken, except a few that were carried off to decorate churches,

title: Page:Book of the Riviera.djvu/35


text:
Page:Book of the Riviera.djvu/36

16 All the marble casing was ripped away, the bas-reliefs were broken up, and the fragments heaped in the pit. There was some excuse for this iconoclasm. The stage had become licentious to the last degree, and there was no drawing the people from the spectacles. "If," says Salvian, "as often happens, the public games coincide with a festival of the Church, where will the crowd be? In the house of God, or in the amphitheatre?" During that fifth century the Visigoths and the Burgundians threatened Provence. When these entered Gaul they were the most humanised of the barbarians; they had acquired some aptitude for order, some love of the discipline of civil life. They did not devastate the cities, they suffered them to retain their old laws, their religion, and their customs. With the sixth century the domination of the Visigoths was transferred beyond the Pyrenees, and the Burgundians had ceased to be an independent nation; the Franks remained masters over almost the whole of Gaul.

In 711 the Saracens, or Moors, crossed over at Gibraltar and invaded Spain. They possessed themselves as well of Sicily, Sardinia, and the Balearic Isles. Not content with this, they cast covetous eyes on Gaul. They poured through the defiles of the Pyrenees and spread over the rich plains of Aquitaine and of Narbonne. Into this latter city the Calif Omar II. broke in 720, massacred every male, and reduced the women to slavery. Béziers, Saint Gilles, Aries, were devastated; Nîmes opened to them her gates. The horde mounted the valley of the Rhone and penetrated to the heart of France. Autun was taken and burnt in 725. All Provence to the Alps was theirs. Then in 732 came the most terrible of their invasions. More than 500,000 men, according to the

title: Page:Book of the Riviera.djvu/36


text: The Condor/Volume 1/Number 1/Nesting Observations on the Black Phoebe


text:
Page:Book of the Riviera.djvu/37

Rh chroniclers, led by Abdel-Raman, crossed the Pyrenees, took the road to Bordeaux, which they destroyed, and ascended the coast till they were met and annihilated by Charles Martel on the field of Poitiers.

From this moment the struggle changed its character. The Christians assumed the offensive. Charles Martel pursued the retreating host, and took from them the port of Maguelonne; and when a crowd of refugees sought shelter in the amphitheatre of Aries, he set fire to it and hurled them back into the flames as they attempted to escape. Their last stronghold was Narbonne, where they held out for seven years, and then in 759 that also fell, and the Moorish power for evil in France was at an end; but all the south, from the Alps to the ocean, was strewn with ruins.

They were not, however, wholly discouraged. Not again, indeed, did they venture across the Pyrenees in a great host; but they harassed the towns on the coast, and intercepted the trade. When the empire of Charlemagne was dismembered, Provence was separated from France and constituted a kingdom, under the administration of one Boso, who was crowned at Aries in 879. This was the point of departure of successive changes, which shall be touched on in the sequel. The German kings and emperors laid claim to Provence as a vassal state, and it was not till 1481 that it was annexed to the Crown of France. Avignon and the Venaissin were not united to France till 1791. In no part of Europe probably did pagan customs linger on with such persistence as in this favoured land of Provence, among a people of mixed blood—Ligurian, Phœnician, Greek, Roman, Saracen. Each current of uniting blood brought with it some superstition, some

title: Page:Book of the Riviera.djvu/37


text:
Reggel/Opinion of the Court

This case arises under sections 5278 and 5279 of the Revised Statutes of the United States, which provide:

'Sec. 5278. Whenever the executive authority of any state or territory demands any person as a fugitive from justice of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found, or affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to secure the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within six months from the time of the arrest, the prisoner may be discharged. All costs and expenses incurred in the apprehending, securing, and transporting such fugitive to the state or territory making such demand shall be paid by such state or territory.

'Sec. 5279. Any agent who receives the fugitive into his custody shall be empowered to transport him to the state or territory from which he has fled. And every person who, by force, sets at liberty or rescues the fugitive from such agent while so transporting him, shall be fined not more than five hundred dollars, or imprisoned not more than one year.' 1 St. c. 7, §§ 1, 2.

It is not necessary to consider the question suggested by counsel as to the right of the governor of the territory to have withheld the papers upon which he based his warrant for the arrest of the accused; for the record shows that the requisition and the accompanying papers from the governor of Pennsylvania constituted the evidence upon which he acted, and were submitted to the court to which the writ of habeas corpus was returned. Under the act of congress, it became the duty of the governor of Utah to cause the arrest of Reggel, and his delivery to the agent appointed to receive him, when it appeared (1) that the demand by the executive authority of Pennsylvania was accompanied by a copy of an indictment, or affidavit made before a magistrate, charging Reggel with having committed treason, felony, or other crime within that state, and certified as authentic by her governor; (2) that the person demanded was a fugitive from justice.

The first of these conditions was met by the production to the governor of Utah of the indictment (duly certified as authentic) of the grand jury of the court of quarter sessions of the peace for the city and county of Philadelphia. Pennsylvania, wherein the accused was charged with having committed the crime of obtaining, by false pretenses, certain goods, with the intent to cheat and defraud the persons therein named; which offense, as was made to appear from the statutes of that common wealth, (a copy of which, duly certified as authentic, accompanied the indictment,) is a misdemeanor under the laws of Pennsylvania, punishable by a fine not exceeding $500, and imprisonment not exceeding three years.

It was objected in the court of original jurisdiction that there could be no valid requisition based upon an indictment for an offense less than a felony. This view is erroneous. It was declared, in Kentucky v. Dennison, 24 How. 99, that the words 'treason, felony, or other crime,' in section 2 of article 1 of the constitution, include every offense, from the highest to the lowest, known to the law of the state from which the accused had fled, including misdemeanors. It was there said by Chief Justice TANEY, speaking for the whole court, that, looking to the words of the constitution, 'to the obvious policy and necessity of this provision to preserve harmony between the states and order and law within their respective borders, and to its early adoption by the colonies, and then by the confederated states whose mutual interest it was to give each other aid and support whenever it was needed, the conclusion is irresistible that this compact ingrafted in the constitution included, and was intended to include, every offense made punishable by the law of the state in which it was committed.' It is within the power of each state, except as her authority may be limited by the constitution of the United States, to declare what shall be offenses against her laws; and citizens of other states, when within her jurisdiction, are subject to those laws. In recognition of this right, so reserved to the states, the words of the clause in reference to fugitives from justice were made sufficiently comprehensive to include every offense against the laws of the demanding state, without exception as to the nature of the crime.

Although the constitutional provision in question does not, in terms, refer to fugitives from the justice of any state who may be found in one of the territories of the United States, the act of congress has equal application in that class of cases; and the words 'treason, felony, or other crime' must receive the same interpretation when the demand for the fugitive is made, under that act, upon the governor of a territory, as when made upon the executive authority of one of the states of the Union.

Another proposition advanced in behalf of the appellant is that the indictment which accompanied the requisition does not sufficiently charge the commission of any crime; of which fact it was the duty of the governor of Utah to take notice, and which the court may not ignore in determining whether the appellant is lawfully in custody. In connection with this proposition, counsel discusses, in the light of the adjudged cases, the general question as to the authority of a court of the state or territory in which the fugitive is found to discharge him from arrest whenever, in its judgment, the indictment, according to the technical rules of criminal pleading, is defective in its statement of the crime charged. It is sufficient for the purposes of the present case to say that, by the laws of Pennsylvania, every indictment is to be deemed and adjudged sufficient and good in law which charges the crime substantially in the language of the act of assembly prohibiting its commission, and prescribing the punishment therefor; or, if at common law, so plainly that the nature of the offense charged may be easily understood by the jury; and that the indictment which accomp nied the requisition of the governor of Pennsylvania does charge the crime substantially in the language of her statute. That commonwealth has the right to establish the forms of pleadings and process to be observed in her own courts, in both civil and criminal cases, subject only to those provisions of the constitution of the United States involving the protection of life, liberty, and property in all the states of the Union.

The only question remaining to be considered, relates to the alleged want of competent evidence before the governor or of Utah, at the time he issued the warrant of arrest, to prove that the appellant was a fugitive from the justice of Pennsylvania. Undoubtedly the act of congress did not impose upon the executive authority of the territory the duty of surrendering the appellant, unless it was made to appear, in some proper way, that he was a fugitive from justice. In other words, the appellant was entitled, under the act of congress, to insist upon proof that he was within the demanding state at the time he is alleged to have committed the crime charged, and subsequently withdrew from her jurisdiction, so that he could not be reached by her criminal process. The statute, it is to be observed, does not prescribe the character of such proof; but that the executive authority of the territory was not required by the act of congress to cause the arrest of appellant and his delivery to the agent appointed by the governor of Pennsylvania, without proof of the fact that he was a fugitive from justice, is, in our judgment, clear from the language of that act. Any other interpretation would lead to the conclusion that the mere requisition by the executive of the demanding state, accompanied by the copy of an indictment, or an affidavit before a magistrate, certified by him to be authentic, charging the accused with crime committed within her limits, imposes upon the executive of the state or territory where the accused is found the duty of surrendering him, although he may be satisfied from incontestable proof that the accused had, in fact, never been in the demanding state, and therefore could not be said to have fled from its justice. Upon the executive of the state in which the accused is found, rests the responsibility of determining, in some legal mode, whether he is a fugitive from the justice of the demanding state. He does not fail in duty if he makes it a condition precedent to the surrender of the accused that it be shown to him, by competent proof, that the accused is in fact a fugitive from the justice of the demanding state.

Did it sufficiently appear that the appellant was, as represented by the executive authority of Pennsylvania, a fugitive from the justice of that commonwealth? We are not justified by the record before us in saying that the governor of Utah should have held the evidence inadequate to establish that fact. The warrant of arrest refers to an affidavit taken before a notary public of Pennsylvania, showing Reggel's flight from that commonwealth. There was no such affidavit; but the reference, manifestly, was to the affidavit made by Frederick Gentner, which recited the finding by the grand jury of the city and county of Philadelphia, of a ture bill of indictment charging Reggel with 'the crime of false pretenses,' and stating that he 'is a fugitive from justice,' and was then in Salt Lake City, Utah territory. This is sworn to, and is attested by the seal of the court of quarter sessions,-the court in which the prosecution is pending. It is not entirely clear from the record, as presented to us, what is the official character of the person before whom the affidavit was made. The reasonable inference is that the affidavit was made in the court where the prosecution is pending, and that it is one of the papers accompanying the requisition of the governor of Pennsylvania, and which he certified to be authentic.

It is contended that Gentner's affidavit that Reggel is a fugitive from justice is the statem nt of a legal conclusion, and is materially defective in not setting out the facts upon which that conclusion rested. Although that statement presents, in some aspects of it, a question of law, we cannot say that the governor of Utah erred in regarding it as the statement of a fact, and as sufficient evidence that appellant had fled from the state in which he stood charged with the commission of a particular crime, on a named day, at the city and county of Philadelphia; especially, as no opposing evidence was brought to his attention. If the determination of that fact by the governor of Utah upon evidence introduced before him is subject to judicial review upon habeas corpus, the accused, in custody under his warrant,-which recites the demand of the governor of Pennsylvania, accompanied by an authentic indictment charging him, substantially in the language of her statutes, with a specific crime committed within her limits,-should not be discharged merely because, in the judgment of the court, the evidence as to his being a fugitive from justice was not as full as might properly have been required, or because it was so meager as perhaps to admit of a conclusion different from that reached by him. In the present case, the proof before the governor of Utah may be deemed sufficient to make a prima facie case against the appellant as a fugitive from justice within the meaning of the act of congress.

Judgment affirmed.

title: Reggel/Opinion of the Court


text: Talk:Reggel/Opinion of the Court

title: Talk:Reggel/Opinion of the Court


text:
Canal Claiborne Streets Company v. Hart

J. R. Beckwith, for plaintiff in error.

E. H. McCaleb and E. H. Farrar, for defendant in error,

BLATCHFORD, J.

title: Canal Claiborne Streets Company v. Hart


text: Talk:Canal Claiborne Streets Company v. Hart