text:
Harvey v. Tyler

TYLER brought ejectment against Harvey and others in the District Court of the United States for the Western District of Virginia, to recover one hundred thousand acres of land in what was formerly Kanawha County alone, though afterwards partly Kanawha and partly Mason County; the last-named county having been created out of the former. The defendants set up that this title had been interrupted by a forfeiture of the land for non-payment of taxes to the commonwealth, and the vesting of it in the President and Directors of the Literary Fund, under a statute of Virginia passed 1st April, 1831, 'concerning lands returned delinquent for the non-payment of taxes;' and there was no doubt that this was so unless the forfeiture had been relieved by certain proceedings in the County Court of Kanawha County, under two sections,-the 21st and 22d of the same act.

The provisions of these two sections were, in their material parts, as follows; and the reader will observe how far they authorize redemption for delinquencies prior to the date of the act of 1st April, 1831; and how far for any term after the passage of it.

'§ 21. If any person having title to any tract of land returned delinquent for the non-payment of taxes, and not heretofore vested in the President and Directors of the Literary Fund, and having legal possession thereof, shall prove, by satisfactory evidence, to the court of the county in which such land may lie, before the first day of January, 1833, that prior to the passage of this act he was a bon a fide purchaser of such land so claimed by him; that he has a deed for the same, which was duly recorded before the passage of this act; and that he has paid all the purchase-money therefor, or so much thereof as not to leave in his hands sufficient to satisfy and pay the taxes and damages in arrear and unpaid at the date of his purchase; or that he fairly derives title by, through, or under some person so having purchased and paid the purchase-money, it shall be the duty of the court to render judgment in favor of such person, exonerating the land from all arrears of taxes, and the damages thereon anterior to the date of such purchase, except so much as the balance of the purchase-money remaining unpaid will be sufficient to pay, &c.; but no judgment shall be rendered except in presence of the attorney for the commonwealth, or of some other attorney appointed by the court to defend the interest of the commonwealth. . . .. No judgment in favor of such applicant shall be of any validity, unless it appears on the record that the attorney for the commonwealth, or the attorney appointed as aforesaid, appeared to defend the application.

'§ 22. And if any person having legal possession of and title to any tract of land returned delinquent for non-payment of taxes, and not heretofore vested in the President and Directors of the Literary Fund, shall show, by satisfactory evidence to the court of the county where the said land may lie, at any time before the first day of January, 1833, that the taxes in arrear and due thereon are not in arrear or due, either having been erroneously charged on the books of the commissioner, or having been actually paid, or that in the years for which said land or lot was so returned delinquent, there was sufficient property on the premises whereon the collector might have made distress, it shall be the duty of the court, under the limitations, injunctions, and conditions contained in the preceding section, to render judgment exonerating such land from the taxes so erroneously charged thereupon.'

The records of the County Court of Kanawha disclosed next the following entries:

'At a county court held for Kanawha County, at the courthouse thereof, the 14th day of November, 1831, present David Ruffner, Andrew Donnally, John Slack, and James McFarland, gentlemen, justices, &c.

'Order.-This day came Matthias Bruen, having title to one tract or parcel of land containing one hundred thousand acres, lying partly in the county of Mason and party in the county of Kanawha; the said tract of one hundred thousand acres being also the same charged in said lists of lands and lots to the Bank of Delaware, John Hollingsworth, and John Shallcross, &c., and returned delinquent in said names for the year 1815. And the said Matthias, having proved by evidence satisfactory to this court that prior to the passage of the act entitled 'An act concerning lands returned delinquent for the non-payment of taxes,' &c., passed April 1, 1831, he was a bon a fide purchaser of said tract, and that he has a deed or deeds which was or were duly recorded in the clerk's office of the County Court of Kanawha County previous to the passage of the aforesaid act; and that he has paid all the purchase-money therefor, having no portion thereof in his hands to satisfy and pay the taxes and damages in arrear and unpaid at the date of his purchase, or any part thereof; and further, that he is in legal possession of the said tract, and was so in possession at the time of the passage of the act before recited.

'Therefore this court, in the presence of the attorney prosecuting the pleas of the commonwealth in said court, who hath appeared and defended this application, upon full consideration of all the matters and things on either side alleged, doth render judgment in favor of the said Matthias Bruen, and doth order, adjudge, and decree that the said tract of land above mentioned be released, discharged, and exonerated from all the arrears of taxes and the damages charged or chargeable thereon anterior to the 14th of April, 1815, the date of the purchase thereof by the said Matthias.

'And the said Matthias Bruen, having further proved by evidence satisfactory to this court that during all the years 1815-'16-'17-'18-'19 and 1820, the years for which the said tract is charged to the said Matthias, and in his name returned delinquent for the non-payment of taxes, there was sufficient property whereon the sheriff or collector might have made distress, and out of which the said taxes for the said several years might have been made and collected. Thereupon this court, in the presence of the attorney prosecuting the pleas of the commonwealth in the said court, who hath also appeared and defended this application, upon full consideration of all the matters and things on either side alleged, doth further adjudge, order, and decree, that the said tract of land be released, discharged, and exonerated from all the arrears of taxes and the damages charged or chargeable thereon for the said several years 1815-'16-' 17-'19, and 1820, whether the same be charged to the said Matthias or to any other person or persons whatsoever; all of which is ordered to be certified according to the act of Assembly in that case made and provided.'

An order, dated 12th of November, and similar to this last, exonerated the tract, upon the latter ground, for the years from 1821 to 1831, inclusive.

THE FIRST POINT in the case was as to the effect of these orders; that is to say, whether, under the statute, they exonerated the land; and this again depended, perhaps, part on the character of this County Court of Kanawha, and to what extent it was or was not a court of general jurisdiction. On this point, it appeared that these county courts derived their powers from a statute of Virginia authorizing them, whose seventh and eighth sections read thus:

'§ 7. The justices of every such court, or any four of them, as aforesaid, shall and may take cognizance of, and are hereby declared to have power, authority, and jurisdiction to hear and determine, all cases whatsoever now pending, or which shall hereafter be brought in any of said courts at common law, or in chancery, within their respective counties and corporations, and all such other matters as by any particular statute is or shall be made cognizable therein.

'§ 8. That said courts shall be holden four times per year for the trial of all presentments, criminal prosecutions, suits at common law and in chancery, where the sum or value in controversy exceeds twenty dollars, or four hundred pounds of tobacco.'

It depended, also, in part, perhaps, on another question, connected with the location of the land. As already intimated, the land was situated in what was originally Kanawha County, but out of which another county, Mason, had been, of later times, created. At the time of these proceedings (A.D. 1831) in the County Court of Kanawha, the land had come to lie in part in this new county of Mason. It had, however, for the term of thirty-one years,-the term for which the exoneration extended,-been always listed for taxation as one tract, and as being in the County of Kanawha; and, as the bill of exceptions showed, had been charged with taxes nowhere but in that county. Moreover, the Auditor of the State of Virginia, after these orders of the Kanawha County Court were made, entered an exoneration of taxes as to the entire tract.

Upon this whole part of the case, the court below instructed the jury that the two orders 'did exonerate the taxes delinquent on the land in controversy for the year 1831, and all years prior thereto.'

THE SECOND POINT-one, also, which arose on the charge of the court-was, as to whether certain parties, not in possession, but, nevertheless, made defendants, were properly made so.

The code of Virginia enacts as follows:

'The person actually occupying the premises shall be named defendant in the declaration. If they be not occupied, the action must be against some person exercising ownership thereon, or claiming title thereto, or some interest therein, at the commencement of the suit.'

Under this statute the court, on a request to charge in a particular way, charged in substance, that if some of the defendants had made entries and surveys of any part of the land in controversy, under which they were setting up claims to it, they were properly sued, although not in occupation of it at the time the suit was instituted.

THE THIRD POINT in the case related to adverse possession, and was whether the court had rightly charged in saying, that if the jury found plaintiff's title was the paramount title, and that the defendants entered and took possession without any title, or claim, or color of title to any part, that such entry and possession was not adverse to the plaintiff's title, but was subservient thereto.

The case was twice elaborately argued in this court. below, as here, the suit was contested with determination; and the record which was brought up showed that the defendants had asked for no less than FORTY-SIX different instructions! They ran over twelve pages, and were submitted in three series of requests. The first series, comprising twenty-four propositions of law, the second series twelve, and the third ten; and it rather appeared from the bill of exceptions, that each of these series was prayed for, and the action of the court on them excepted to, as a whole. Three only of the forty-six were granted. The court below granted, also, three of the plaintiffs' requests; in which three, in fact, the substance of all that was argued was comprised.

Verdict and judgment having been given for the plaintiffs, the case was brought here by the other side on error.

Mr. J. H. Brown, for Harvey, plaintiff in error, and defendant below.

1. The County Court of Kanawha was a court of inferior jurisdiction; OR, rather—

2. If not so, in general, it had a jurisdiction derived from statute only in this particular matter; a matter quite alien from the ordinary common law or chancery jurisdiction conferred by the statute creating these county courts. The jurisdiction is limited as to duration of time, as to the class of persons for whose benefit it is intended, as to the subject-matter, and as to the mode of its exercise.

In either case, however,-that is to say, whether the court was constitutionally a court of inferior jurisdiction, or whether the jurisdiction conferred by the act is what is termed a special limited statutory jurisdiction,-every fact essential to authorize the court to make the orders, must appear upon the record which the court makes of its transactions. Martin v. McKinney, a leading case in Kentucky, as to the character of 'county courts,' is in point, and we cite it the more particularly, since the laws of Virginia and of Kentucky are known to be much identical, the latter State having been created out of the former. The County Court of Mason County there-acting under a statute which gave the court authority to deprive a keeper of a ferry of his license, if he either neglected to furnish the necessary boats, or the number of hands required by the court, or if the ferry itself became wholly disused and unfrequented for two years-had deprived Martin of his right to keep a ferry over the Ohio; but the judgment of the county court did not state for which of the three causes the court had done what it did, or even that it had done it for any. On motion to set the judgment, for want of such specification in the record, aside, the Court of Appeals says:

'This being a law which authorizes the county court to interfere with and deprive citizens of their rights and property in a summary way, it should appear from the record of their proceedings that they acted within their power and authority, and, therefore, nothing ought to be presumed to support their proceedings. Nor can this case be assimilated to the proceedings of a court of unlimited jurisdiction in correcting the acts of ministerial officers, who, in carrying judgments into execution, either wilfully or negligently abuse the process of the court. In the latter case, every presumption is to be indulged in support of the unlimited jurisdiction, because it is derived from the common law. In the former, no such presumption is permitted, because the authority is given by statute, which must be strictly and substantially pursued.'

The judgment of the county court was accordingly annulled. The case does, however, but act on the principle declared by the Court of King's Bench, A. D. 1778, in Crepps v. Durden, a case made a prominent one in Smith's Leading Cases, and largely annotated by Hare, J.

title: Harvey v. Tyler


text: Talk:Harvey v. Tyler

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title: Talk:Harvey v. Tyler


text:
Harvey v. Tyler/Opinion of the Court

Now, as to first of the decrees or judgments or orders-by whatever name the release may be called-of the County Court of Kanawha:

It does not aver or show that the land was not, prior to the first day of April, 1831, vested in the President and Directors of the Literary Fund.

It does not aver and show that Matthias Bruen derived title to the land from any of the persons in whose names the land is shown by the release to have been returned delinquent; nor does it aver or show that Bruen claimed the land either mediately or immediately by grant from the commonwealth.

It does not aver or show that Bruen had legal possession of said land.

It does not aver or show that said land had been returned delinquent (as it was) in the names of Jesse Waln and others, or any other person or persons, from 1805 to 1814, inclusive. Therefore, the court had no jurisdiction to release the land for those years, and for the delinquency of those years the land became forfeited, and vested in the commonwealth.

The second release is equally defective.

It does not aver or show that the land was not, prior to the 1st of April, 1831, vested in the President and Directors of the Literary Fund; nor does it show any of the prerequisites necessary to give the court jurisdiction, unless it can be aided by the recital in the first release, which it cannot be.

It does not aver or show that, between the years 1815 and 1820, inclusive, there was property on the land, out of which the sheriff or collector might have made distress for the tax, or that the taxes for which the land was returned delinquent were not in arrear and due, or that they had been paid; and yet these were the only grounds upon which the release was authorized under the second section of the act aforesaid.

It was error to exonerate the land from all the taxes and damages charged or chargeable thereon, whether charged in the name of Bruen, or any other person or persons whatsoever; this was unauthorized by law, and in derogation of the provisions in favor of bon a fide occupants in the same act.

Both the releases aver that the land, at the time of the releases, lay partly in Mason and partly in Kanawha, without showing what parts or proportions lay in the respective counties, and yet the act only authorized the County Court of Kanawha to release so much of said land as was situate in Kanawha County. Releasing the whole land, therefore, in both counties, was contrary to law, and makes the entire judgment void.

Moreover, the whole reading of the 21st and 22d sections shows that they had reference to lands returned delinquent before or but up to the year 1831, the date of the act. Now the judgments exonerate them for 1831; that is to say, to 1831 inclusive. These sections, relied on by the plaintiffs, employ the past tense. They are sections of amnesty for the past; having no reference to delinquencies after the date of the act. The main purpose of the act was to secure the payment of taxes in arrear. We cannot reasonably suppose that the legislature invited owners not to pay, by giving them the right to have their lands released for future time.

2. Though the Virginia code gives a right to sue in ejectment certain persons not in what the common law would call 'possession,' it has never been regarded as authorizing suit against parties who had merely made entry and surveys, under which they were about to set up claims. The provision of the code, which, it is to be noted, is in derogation of the common law principle, speaks of persons 'exercising ownership thereon; or claiming title thereto, or some interest therein.' The instruction goes beyond this.

3. Our third point may be less tenable than the others. Still we think that a person may be in possession, not asserting any title, and yet that such occupancy will not be actually and positively subservient to another title. It may be negative in its operation only; but the court below makes it positive, and positive in favor of a title certainly not in form admitted.

Mr. B. H. Smith, contra.

Mr. Justice MILLER delivered the opinion of the court.

This case has been twice argued before this court. It involves the title to a hundred thousand acres of land. The oral argument has been able on both sides; but the manner in which the record brings the case before us, is one which we have repeatedly condemned, and which has sometimes precluded us from the consideration of points relied on by counsel as error.

It is a fair inference from the bill of exceptions that each of the three series of instructions refused was prayed and excepted to as a whole. If so, the proceeding was not only a clear violation of a rule of this court; but if any proposition in the series ought to have been rejected, then the court did not err in refusing the prayer, although there might have been propositions in the series, which, if asked separately, ought to have been given. The exception is a general one to the refusing the prayer of the plaintiffs in error, and to the granting the prayer of the defendants in error.

However it might pain us to see injustice perpetuated by a judgment which we are precluded from reviewing by the absence of proper exceptions to the action of the court below, justice itself, and fairness to the court which makes the rulings complained of, require that the attention of that court shall be specifically called to the precise point to which exception is taken, that it may have an opportunity to reconsider the matter and remove the ground of exception. This opportunity is not given when pages of instructions are asked in one prayer, and if refused as a whole, are excepted to as a whole. We may rightfully expect of counsel who prepare cases for this court, that they shall pay some attention to the rules which we have framed for their guidance in that preparation; as well as to those principles of law referred to, which are necessary to prevent the prayer that counsel has a right to make to the court for laying down the law to the jury, from being used as a snare to the court, and an instrument for perverting justice. These observations, which are of daily application in this court, are fully justified by a record, which shows forty-six propositions asked of a court at once, as a charge to a jury.

In the present case, while we are relieved from the necessity of examining the forty-three propositions asked by plaintiffs in error (three of the forty-six were granted), we are also relieved from any apprehension that this will work injustice; because the only three propositions asked and granted on the part of defendants in error, and to which by a little liberality we are able to hold the exceptions sufficient, involve all the questions of law which are entitled to consideration, if not all which were argued in the case.

One branch of the controversy-the one of engrossing importance-turns upon the validity of the orders made by the County Court of Kanawha County.

The court below instructed the jury that these orders 'did exonerate the taxes delinquent on the land in controversy for the year 1831, and all years prior thereto,' and it is the soundness of this instruction which we are first to consider.

The plaintiffs in error contend that these orders are void, and therefore nullities, because the records of them do not show that several matters were proven, which are essential to the right of the party to have his lands thus exonerated.

Ten or twelve of these omissions are urged as applicable to one or the other, or both, these orders; some of which are founded in misconception of what the record contains; some on the absence of averments merely negative, such as the failure to allege that the land had not been vested in the Trustees of the Literary Fund; and all of them, except one or two which will be noticed hereafter, concern matters, which may well be supposed to have been substantiated by proof before the court; if we are at liberty to make any presumptions in favor of the validity of the orders of the court.

This brings us to the issue of law in the case. The plaintiffs in error maintain:

1. That the county court which made these orders is a court of inferior and special jurisdiction, and therefore every fact essential to authorize it to make such orders, must appear upon the record which the court makes of the transaction; or,

2. If the court is not held to be of this inferior and special character, that the statute confers upon it in this class of cases only such special jurisdiction, and that its orders are subject to the same rule in testing their validity.

It is certainly true that there is a class of tribunals, exercising to some extent judicial functions, of which it may be said, in the language of Chief Justice Marshall, that they are 'courts of a special and limited jurisdiction, which are created on such principles, that their judgments taken alone are entirely disregarded, and the proceedings must show their jurisdiction.'

The first inquiry, then, on this subject, must be into the character of the County Court of Kanawha County, which rendered these judgments of exoneration.

The powers of these courts in Virginia were originally conferred and prescribed by the act of 1792, and are to be found fully stated in section 7th of the act of 1819. 'The justices of every such court, or any four of them, as aforesaid, shall and may take cognizance of, and are hereby declared to have power, authority, and jurisdiction, to hear and determine, all cases whatsoever now pending, or which shall hereafter be brought in any of said courts, at common law or in chancery, within their respective counties and corporations, and all such other matters as by any particular statute is or shall be made cognizable therein.' Section 8 provides, that said courts shall be holden four times per year for the trial 'of all presentments, criminal prosecutions, suits at common law, and in chancery, where the sum or value in controversy exceeds twenty dollars, or four hundred pounds of tobacco.'

It is impossible to come to any other conclusion from this statute, than that the county courts, of Virginia were courts of general jurisdiction; and were inferior only in the sense that their judgments might be revised by some appellate tribunal. They were in no sense courts of special jurisdiction, and were unlike county courts in other States,-Kentucky, for example, in reference to which a Kentucky decision has been quoted to us,-which had no common law or chancery jurisdiction, whose principal functions were ministerial, in reference to the roads, bridges, and finances of the county, to which are sometimes added those judicial functions which relate to wills and the administration of the estates of decedents. These all differ widely from the county courts of Virginia, which have all those powers of general jurisdiction usually found in circuit courts, courts of common pleas, courts of chancery, and others of similar character.

In reference to all these the general rule is, that every presumption not inconsistent with the record, is to be indulged in favor of their jurisdiction; and their judgments, however erroneous, cannot be questioned, when introduced collaterally, unless it be shown affirmatively that they had no jurisdication of the case.

In regard to the second proposition, it is not so easy to determine in all cases the principle which is to govern.

The jurisdiction which is now exercised by the common law courts in this country, is, in a very large proportion, dependent upon special statutes conferring it. Many of these statutes create, for the first time, the rights which the court is called upon to enforce, and many of them prescribe with minuteness the mode in which those rights are to be pursued in the courts. Many of the powers thus granted to the court are not only at variance with the common law, but often in derogation of that law.

In all cases where the new powers, thus conferred, are to be brought into action in the usual form of common law or chancery proceedings, we apprehend there can be little doubt that the same presumptions as to the jurisdiction of the court and the conclusiveness of its action will be made, as in cases falling more strictly within the usual powers of the court. On the other hand, powers may be conferred on the court and duties required of it, to be exercised in a special and often summary manner, in which the order or judgment of the court can only be supported by a record which shows that it had jurisdiction of the case. The line between these two classes of cases may not be very well defined nor easily ascertained at all times. There is, however, one principle underlying all these various classes of cases, which may be relied on to carry us through them all when we can be sure of its application. It is, that whenever it appears that a court possessing judicial powers has rightfully obtained jurisdiction of a cause, all its subsequent proceedings are valid, however erroneous they may be, until they are reversed on error, or set aside by some direct proceeding for that purpose. The only difficulty in applying the rule, is to ascertain the question of jurisdiction.

Former adjudications of this court have done much to throw light upon this difficult point, and to settle the rules by which it may be determined. We will notice a few of the most important.

One of the earliest is the case of Kempe's Lessee v. Kennedy, 5 Cranch, 173. Certain acts of the legislature of New Jersey confiscated the property of those who had sided with Great Britain in the war of the Revolution. They conferred the power of ascertaining that fact by inquest instead of by regular indictment, in the inferior court of common pleas of each county. In an action of ejectment, brought in the Circuit Court of the United States by Grace Kempe, the defendants set up a title acquired under proceedings thus authorized. In this court, on error, it was argued that, as to these proceedings, the court must be considered as one of special and limited jurisdiction. But the court, by Chief Justice Marshall, said: 'This act' (the statute of New Jersey), 'cannot, it is conceived, be fairly construed to convert the court of common pleas into a court of limited jurisdiction in cases of treason.' 'In the particular case of Grace Kempe, the inquest is found in the form prescribed by law, and by persons authorized to find it. The court was constituted according to law; and if an offence punishable by the law had been in fact committed, the accused was amenable to its jurisdiction, so far as respects her property in New Jersey. The question whether this offence was or was not committed, that is, whether the inquest which was substituted for a verdict on an indictment, did or did not show that the offence had been committed, was a question which the court was competent to decide. The judgment was erroneous, but it was a judgment, and until reversed cannot be disregarded.'

In the case of Voorhees v. The Bank of the United States, the validity of certain proceedings in attachment were called in question, on the ground that the record of the court of common pleas, in Ohio, in which the proceedings were had, did not show certain steps which the law required. The defendant in the attachment proceedings was a non-resident; yet his land had been levied on, condemned, and sold, without an affidavit, without notice by publication, without calling him three times, at there different terms of the court, and without waiting twelve months from the return of the writ, before the sale; all of which are specially required in the act refulating the proceedings. Here was a case of special and stringent proceedings in rem, in the absence of jurisdiction over the person, where material provisions of the law, for the protection of defendant's rights, were omitted, so far as the record showed. 'It is contended,' said this court, 'by the counsel for plaintiffs in error, that all the requisitions of the law are conditions precedent, which must not only be performed before the power of the court to order a sale, or of the auditors to execute it, can arise, but such performance must appear in the record.' This is precisely what is contended for in the case now before us, and the circumstances of this case and of that are remarkably similar in their relation to the principles which we are now discussing. The court said, in reply to this: 'The provisions of the law do not prescribe what shall be deemed evidence that such acts have been done, or direct that their performance shall appear upon the record.' 'We do not think it necessary to examine the record in the attachment suit, for evidence that the acts alleged to have been omitted appear therein to have been done. Assuming the contrary to be the case, the merits of the present controversy are narrowed to the single question, whether this omission invalidates the sale. The several courts of common pleas of Ohio, at the time of these proceedings, were courts of general jurisdiction, to which was added, by the act of 1805, the power to issue writs of attachment, and order a sale of the property attached, on certain conditions; no objection, therefore, can be made to their jurisdiction over the case, the cause of action, or the property attached.' 'There is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears.' 'If the defendant's objection can be sustained, it will be on the ground that this judgment is false, and that the order of sale was not executed according to law, because the evidence of its execution is not in the record. The same reason would equally apply to the non-residence of the defendant within the State, the existence of the debt due the plaintiff or any other creditor, which is the basis of the whole proceedings.'

In the case of Thompson v. Tolmie, a sale of real estate by three orphans of this city was assailed in this court on similar grounds: The court says: 'Those proceedings were brought before the court collaterally, and are by no means open to all the exceptions which might be taken on a direct appeal. They may well be considered judicial proceedings; they were commenced in a court of justice, carried on under the supervisory power of the court to receiving its final ratification. The general and well-settled rule of law in such cases is, that when the proceedings are collaterally drawn in question, and it appears on the face of them that the subject-matter was within the jurisdiction of the court, they are voidable only.' 'If there is a total want of jurisdiction, the proceedings are void, and a mere nullity, and confer no right and afford no justification; and may be rejected when collaterally drawn in question.'

Both these latter cases are cited, reaffirmed, and the doctrine amplified, in Grignon v. Astor.

The application of these principles to the case before us will be very obvious upon a slight examination of sections 21 and 22 of the act of 1831, which confers on the county courts the power to exonerate lands from delinquent taxes. We have already seen that they are courts of general jurisdiction. These sections authorize them, when certain facts are proved by the owner of the land, 'to render judgment in favor of such person, exonerating the land;' 'but no judgment shall be rendered except in the presence of the attorney for the commonwealth, or some other attorney appointed by the court to defend the interest of the commonwealth. If the application shall fail, judgment shall be rendered against the applicant, and he shall be adjudged to pay costs.' Now here are all the usual accompaniments of a judicial proceeding; a court of competent jurisdiction, parties, plaintiff and defendant, namely, the applicant and the State; a subject-matter of consideration, to wit, the exoneration of the land from delinquent taxes, and a judgment of the court, either establishing such exoneration, or that the claim to it is not a rightful claim, and in either case conclusive of that claim. Care is taken that the commonwealth shall be represented by capable counsel; and the only fact required by the act to appear on the record is the presence of such counsel. That the appearance of this fact on the record is made the only one essential to the validity of the judgment, is strong evidence that the other facts, on which the judgment of the court may depend, need not so appear.

The transcripts of the judgments of exoneration produced in this case, show that there were proper parties before the court, that the subject-matter of the exoneration of the land from delinquent taxes was before it, and that it rendered judgments exonerating it from all delinquent taxes. Can it be required to give validity to these judgments, that the record shall show that every fact was proved, upon which the judgment of the court must be supposed to rest? Such a ruling would overturn every decision made by this court upon that class of cases, from that of Kempe's Lessee v. Kennedy, already referred to, down to the present time.

It is urged that the 22d section of the act of 1831 was not intended to confer the right of exoneration as to taxes delinquent after the passage of the act.

If this were true, we do not feel sure that, under the principles just considered, it could invalidate the judgment of the court. It would be a mistake as to the law, which would make the judgment erroneous; but would it, therefore, be void? We do not, however, concur in this construction of the act. There is nothing in its language which limits this relief to past delinquency, and it is a rule of construction, that all statutes are to be considered prospective, unless the language is express to the contrary, or there is a necessary implication to that effect. The powers of the court over this subject, it is true, is limited in point of duration to three years; but that period extends beyond the time when the taxes for the year 1831 would become delinquent, and would, therefore, seem to embrace them, unless expressly excluded. The third section of the act of December 16, 1831, and the second section of the act of March 10, 1832, both recognize and proceed upon this construction of these sections, and remove any doubt which may have existed on that subject.

It was in proof that, at the time these judgments were rendered, a considerable part of this one hundred thousand acre tract lay in other counties which had been created out of the County of Kanawha; and it is said, as to so much of said land, the judgments of the county court of that county were without jurisdiction.

The tract had always been listed for taxation as a unit, in the County of Kanawha, for the entire period of thirty-one years or more, to which the exoneration extended. The bill of exceptions states, that the land was uniformly charged with taxes there, and not elsewhere. It was these delinquent lists, returned regularly by the Auditor of the State to the county from whence they came, from which the owner desired to be relieved. An application to the court of a county where they did not exist, would have been unavailing. It would be sticking in the bark to say, that a party entitled to relief could not get it in one county because all the land did not lie there; nor in any other county, because no evidence of such delinquency appeared in the tax-lists of the latter to be exonerated. The land in question was charged with taxes nowhere but in Kanawha County, and in that county it was proper that the exoneration should be entered.

It is to be remarked of all these objections to the judgments of exoneration, that the parties who made them show no patent, or other title, from the State of Virginia, and are setting up defects in those judgments, of which neither the State of Virginia, which was a party to the proceedings, nor the Trustees of the Literary Fund, who were entitled if they were invalid, have ever complained, or sought to take advantage. On the contrary, the Auditor of the State of Virginia, its official accounting officer, recognized these judgments as valid, by making entries in his books, to the effect that the taxes were released by them.

We are of opinion, therefore, that the first instruction given at request of plaintiffs was correct.

The second was to the effect that if some of the defen dants had made entries and surveys of any part of the land in controversy, under which they were setting up claims to it, they were properly sued, although not in occupation of it at the time the suit was instituted.

The code of Virginia, as well as that of several other States, allows the action of ejectment to be brought against persons claiming title, or interests in the property, although not in possession. It says: 'The person actually occupying the premises shall be named defendant in the declaration. If they be not occupied, the action must be against some person exercising ownership thereon, or claiming title thereto, or some interest therein, at the commencement of the suit.' If then there was a part of the tract claimed by some person, on which there was no occupant, the case existed which the second clause of the section provides for. The policy of this act is obvious. It is that person out of possession, who set up false claims to land, may by a suit in ejectment, which is the legal and proper mode of trying title, have that claim brought to this test. The act provides that such a judgment is conclusive against all the parties; and thus the purpose of the law to quiet title by a verdict and judgment in such cases, is rendered effectual. The language of the code of New York is identical with that of Virginia on this subject. And the construction we have given to it was held to be the true one, by the Supreme Court of the former State.

The third and last instruction given at the instance of plaintiffs, had reference to the question of adverse possession, in its relation to the statute of limitations. Its purport was that if plaintiffs' title was found to be the paramount title, and any of the defendants entered upon and took possession of the land, without title or claim, or color of title, that such occupancy was not adverse to the title of plaintiffs, but subservient thereto.

We think this law to be too well settled to need argument to sustain it. There must be title somewhere to all land in this country. Either in the Government, or in some one deriving title from the Government, State, or National. Any one in possession, with no claim to the land whatever, must in presumption of law be in possession in amity with and in subservience to that title. Where there is no claim of right, the possession cannot be adverse to the true title. Such is the rule given as recently as 1854, by the Court of Appeals of Virginia, in the case of Kincheloe v. Tracewells. The court there says: 'An entry by one upon land in possession, actual or contructive of another, in order to operate as an ouster, and gain possession to the parties entering, must be accompanied by a claim of title.'

We have thus examined the points made by the exceptions to the instructions asked by plaintiffs and given by the court. If there are points made on the instructions prayed by defendants and refused by the court not embraced in those we have discussed, they are of minor importance, and do not affect the merits of the case.

JUDGMENT AFFIRMED.

[See supra, p. 210, Florentine v. Barton. REP.]

title: Harvey v. Tyler/Opinion of the Court


text: Talk:Harvey v. Tyler/Opinion of the Court


text: The Slavers (Kate)

title: The Slavers (Kate)


text: Talk:The Slavers (Kate)

title: Talk:The Slavers (Kate)


text:
The Slavers (Kate)/Opinion of the Court

THE United States filed a libel of information and forfeiture in the District Court for the Southern District of New York, against the bank Kate, her cargo, &c., alleging that she had been equipped, fitted, loaded, and prepared 'for the purpose' of carrying on a trade in slaves, within the acts of Congress of March 22, 1794, and 20th of April, 1818; which acts make such equipping, fitting, preparations, &c., cause of forfeiture. The question, therefore, was, whether the vessel had been fitted with that purpose.

The case was one of four; all like each other, in their general aspects, and reported here in immediate sequence; cases, all, where confessedly the proof of unlawful purpose was not of the most direct kind. The present case was thus:

The Kate, then purporting to be owned by B. & A. Buck, of Baltimore, Maryland (C. W. Buck being master), arrived at New York from Havana on the 17th of May, 1860, with a cargo of rum, wine, copper, sugar, &c., consigned to one Antonio Ross, of New York.

Six days after her arrival at New York, B. & A. Buck, by C. W. Buck, as their attorney, purported to sell the vessel to 'C. P. Lake, of Brooklyn, State of New York;' the consideration stated being $10,500. [She was appraised soon after by the custom-house appraisers at $4000.]

The vessel was of about 250 tons, with one deck, three masts; was 114 feet long, 26 wide, and 10 deep; sharp built, and had sixteen or eighteen spare spars and sails; there was an iron tank six feet square, for water, in the hold.

She was registered on oath of 'C. P. Lake, of Brooklyn, State of New York,' on the 30th of May, 1860. The register bond was executed on the same day, by Lake, Frederick Otto, and H. C. Smith, and describes Otto as then master of the vessel. Smith was the custom-house broker who cleared the vessel. He appeared to have cleared vessels on former occasions for the slave trade. The Kate was cleared on the 3d of July, 1860, 'bound for Cape Palmas and ports on the west coast of Africa,' and put to sea on that day. She had not gone far before she was seized, as mentioned hereafter, by Captain Faunce, of the United States Revenue Cutter Harriet Lane, and brought back; libelled for forfeiture, and her cargo placed in a public warehouse. A stipulation having been given for value and costs, she was released, and about the middle of September, cleared by Smith again for sea, Lake, the person above mentioned as 'purchaser,' swearing that 'he chartered the vessel for a voyage to the coast of Africa, trading and return to New York, and that the vessel was loaded with the goods of the charterer and ready for sea on the 2d of July.'

The outward manifest of the cargo of the Kate, presented at the custom-house on the 3d of July, 1860, declared that it was to be landed at Cape Palmas and leeward ports, west coast of Africa, but named no consignee. It was valued at $7000, and included large quantities of rum and other liquors, beef, pork, tongues, rice, and bread, 5000 feet of lumber, 82 water-casks, filled with fresh water, hoop-iron, vinegar, iron pots, pails, drugs, &c. The lumber was piled on the water casks, and formed a flooring throughout the length of the vessel, and the cargo was over that. The shipper's manifest, purporting to be of part of cargo shipped by Jose Hernandez, &c., for the same destination, and without designating either consignee or place where it was to be landed, embraced all of the goods, &c., reported in the manifest first named, and about $200 worth barrels of beef and tongues, not reported in it.

After her second seizure, it was found that the vessel had on board some articles which were not reported to the custom-house; among them, bread, beef, and pork, coils of rope, zinc, lime, sand, tar, flour, rice, potatoes, globe lanterns, pewter pitchers, a surf-boat, stove, and a variety of articles of food. The boxes manifested as containing 'iron pots' contained furnaces, with boilers on top, which could be used for cooking a quarter of a barrel of rice each. They were termed 'boxes of hardware.'

The shipping articles of 3d July, which declared the vessel 'bound for Cape Palmas and a market, and back to a final port of discharge in the United States,' showed thirteen men besides the captain, a somewhat large crew, perhaps, for an ordinary trading vessel of the size of the Kate. The crew list appended to it was inaccurate in some particulars. All the crew were represented as having been born in the United States; whereas Otto W. Raven, the first mate, who was put down as 'O. J. N. Raven, born in New York,' was a German, and had begun to go to sea at Bremen seventeen years before, about which time he came to New York, and was afterwards naturalized. He had been four or five times to the coast of Africa; the last time in the bark Cora, since seized as a slaver. The second mate was entered by the American name of Francis Stevens, born in Louisiana; he was a Portuguese, named Stevo. How many of the rest were Americans did not appear. The shipping articles for the September voyage-whatever voyage it was were in like form, with the same number of crew list, retaining the two mates and most of the men on the first, and repeating the same designations, except that Stevens was here said to have been born in New York.

On the 3d of July, 1860, when the Kate first started, she was getting out to sea, when Captain Faunce, of the revenue cutter Harriet Lane, noticed the small tug Magnolia approaching her. He boarded the tug, and sent a customs officer to take charge of the Kate. On the tug was a man named Da Costa, a Portuguese, whom the boarding officer said that he recognized as a person that he had seized in 1856, with others, on board the slaver Braman, and who had been indicted, in July, 1856, as owner and builder of that vessel, and for causing her to be sent into the slave-trade. This man, or whoever else it was that was then seized, forfeited his recognizance in 1856, and having been afterwards surrendered by his surety, escaped from the officer. The tug had been hired by Otto to take him and Da Costa down the bay and put them on board the Kate, after she had gone some distance from port. It was after Otto had been put on board the Kate that she was seized, Da Costa remaining still on board the tug. When, afterwards, Da Costa was brought on the Kate, Otto denied that he had ever seen him before; inquired who he was, and if he was in the custom-house department; said he did not know him, and the parties did not appear to recognize each other. But, at the same time, as was testified to by some person belonging to the Harriet Lane, they communicated with each other secretly through the mate, Raven, who also appeared not to know Da Costa. On the same day, McCormick, agent for the tug, who had carried Otto and Da Costa to the Kate, prayed Judge Russell, City Judge of New York, for a writ of habeas corpus for the release of Da Costa, under the name of John Garcia, then detained by Captain Faunce, which writ was issued. On the 5th of July, however, a warrant issued out of the United States District Court for his arrest as Henrico Da Costa, on the pending indictment in the Braman case; and having been held on that charge, he was discharged on recognizance on the 18th of September, since when he had not been heard from. When taken from the tug, he asserted himself to be Garcia, and not Da Costa. He also pretended to be ignorant of our language, but was proved to have understood it. He was not produced by the claimant to explain these facts, nor were they explained from any other sources.

As already noticed, the name of the shipper of the Kate's cargo on the 3d of July, who swore to the shipper's manifest on that day, was ''Jose Hernandez. Da Costa was then in New York''. When the manifest of cargo was again presented to the custom-house for a clearance, on the 14th or 15th of September, the name of Jose Hernandez did not appear on it as shipper; no shipper, in fact, appeared to make oath at that time. Da Costa was then in custody of the marshal on the charge for which he stood indicted. 'Hernandez' never appeared either as claimant or witness, nor was any account given of him.

The bark and all her cargo was either adapted or capable of being adapted to a slave voyage.

On the other hand, it was shown by one Machado, a Portuguese, long in the African trade, and a person frequently summoned in slave cases, and by Smalley, a stevedore, engaged in loading vessels for the west coast of Africa, and by other persons of better standing than either, that there is a regular trade with Cape Palmas and the west coast of Africa; that houses of unquestionable integrity in New York are engaged in it; that the vessel, as respected size, was suitable enough for the legitimate trade; also, that every article on the manifest of this vessel was well adapted to it; staple articles in demand and consumption by the native Africans; articles which the inhabitants of that country buy, and for which they pay in the natural products-palm oil, hides, gold dust, ivory, and other things-indigenous to their own region.

No manacles were found upon the vessel, nor unnecessary chains or fastenings, nor any supply of medicines unusual in a lawful voyage.

The District Judge (Betts) gave an opinion, laying down principles of evidence, in application to this class of cases, as follows:

'In actions of this class, the Government is not restricted to proof of positive facts in laying a foundation for a presumption or inference that acts have been done in violation of law, but they may invoke circumstances calculated to raise suspicions that the purpose of mind or matter inducing the acts performed were illicit; which suspicions must avail as convicting evidence, unless countervailed or explained by proofs in the power of the claimant to furnish. In the carlier seizures and prosecutions under the slave acts, vessels employed in the trade were found fitted out with arrangements so manifestly designed for that business, that the circumstantial proofs furnished by their preparations and equipment were nearly equivalent to positive testimony. The species of indirect or circumstantial proofs of that order, and then generally regarded as necessary to a conviction, were made public law by the treaty between England and Spain, so far as those high contracting parties were concerned, and were generally acquiesced in by courts of the United States as laying down a safe rule of evidence. It soon grew almost into the course of the courts to look for and demand that extreme force of circumstantial evidence to inflict the condemnation of a vessel upon presumptive proofs alone. Very soon slave-traders discarded sets of manacles as part of their preparation. A slave deck was no longer found laid in the vessel or prepared for putting down. She exposed no longer an extraordinary supply of provisions, medicines, or equipments specially adapted to the use of slaves, or other conveniences (except, perhaps, large supplies of water or water-casks) peculiar to the trade, on examination of the ship, or a mere inspection of her outfit, to become very forcible evidence of her business and destination. For years past these insignia of slavers, except supplies of water, have disappeared from vessels detected in the trade and laden with slaves on actual transportation; and it has become notorious, from publications of writers thoroughly conversant with the course of the business, from proofs in courts of justice on the trial of vessels seized for violations of the laws, from public documents and the decisions in cases of the arrest of vessels for the offence, that slaving vessels are now employed in the trade, fitted and cleared at ports abroad and in this country openly, with the appearance of lawful traders carrying substantially like cargoes and equipments as those which pursue a lawful trade on the coast of Africa; and that on arrival out to the point where slave cargoes are collected, the ship is, impromptu, put in a state to receive their victims on board, and is thus enabled, often in one hour's time, to become transmuted from the fitment and aspect of an honest trader to a slaver under way, laden with hundreds of human beings on transportation to foreign markets as merchandise. This new practice of discarding from the preparation of slaving vessels most of the insignia of their real design, and, on the contrary, giving them the semblance of lawful traders, yet possessing the faculty of using at once, in their condition, the means necessary to accomplish their nefarious calling, appeals impressively to justice to put in active service all the capabilities of the law of evidence in order to detect and thwart the imposition and crimes attempted to be carried out. Accordingly, in support and accordance with the doctrine that when the evidence on the part of the Government creates strong suspicions or well-grounded suspicions that the vessel seized as being employed in the slave-trade was fitted out or fitting out for that purpose, the decisions in this court have been uniform and distinct, that such evidence must produce her conviction and condemnation, unless rebutted by clear and satisfactory proofs on the part of the claimants, showing her voyage to be a lawful one.'

His honor accordingly condemned the bark, and the Circuit Court having affirmed the decree, the case was now here by appeal.

Messrs. Donohue, Evarts, and Gillet, for the appellants, owners of the bark Kate, or of other vessels under sentence appealed from.

I. The burden of proof is upon the Government to show, affirmatively, that the vessel was fitted out, &c., for the purpose of carrying on the slave-trade.

1. Because this traffic is a heinous offence against religion, morals, and the law of nature.

2. Because, by statute, it has been declared piracy.

3. Because the proceeding is for the enforcement of a severe forfeiture.

The legal presumption, therefore, is, that the fitting out of the bark was for a lawful purpose.

II. As to the kind and quantity of proof, upon which alone a forfeiture can be declared.

1. The simple fact that the bark was bound for the coast of Africa with such a cargo on board as is usually taken there for the purpose of lawful trade, can raise no legal presumption against her. Upon such a case, the law would presume her voyage innocent, however a suspicious person might suspect the contrary.

2. It is true that a lawful cargo is consistent with an illegal purpose to engage the vessel containing it in the slave-trade on reaching the African coast; but to forfeit or convict upon that ground, there must be positive proof of such guilty purpose. It is the preparation of the vessel, and the purpose with which this is done, which constitute the offence; and this guilty purpose must be affirmatively made out by such proof as shall leave no reasonable doubt on the subject. If the cargo and equipments of the vessel are all innocent in their own nature, a forfeiture may, nevertheless, be decreed, provided there be positive proof of a guilty intention to employ her in the slave-trade. But not otherwise. It was only by disregarding these principles-which are as ancient as the law itself-that the court below was enabled to pronounce the decree of forfeiture, from which this appeal was taken.

III. Let us examine the evidence and the circumstances relied upon to sustain the decree.

1. There was nothing in the destination of the bark indicating an unlawful purpose. She was bound for Cape Palmas and the western coast of Africa. It is admitted that lawful commerce can be carried on with that country as much as with England or France.

2. There was nothing in the size of the bark to indicate that she intended to be employed in an unlawful trade. She was of the usual tonnage of vessels sent to the western African coast upon legal voyages.

3. There was nothing in the other characteristics of the bark, her outfit, equipments, or cargo, which was not entirely suitable for a lawful voyage, or which was in any respect inconsistent with the purpose of prosecuting a lawful trade. This, in effect, is conceded.

There is, in fact, therefore, nothing but the testimony of inferior revenue officers, common sailors, custom-house clerks, and persons of slight weight; the testimony which they gave, even if it came from good sources, being most unsatisfactory. How uncertain is the fact of Da Costa's identity with Garcia! How little trustworthy much of all that was testified about the conduct of Otto! [The counsel here went into the evidence of particular facts, discrediting it largely.] The case of the Government rests, in short, on the fact that the vessel was about to sail for the western coast of Africa, where two sorts of trade are carried on,-one lawful, the other criminal,-and that she does not feel bound to prove, affirmatively, that she was not about to engage in the criminal one. It rests on an unsatisfied surmise, arrived at by the absence of positive testimony. Is this court ready to lay down, as a rule of evidence, that every vessel about to sail for the African coast shall, ipso facto, be presumed guilty of a purpose to engage in the slave-trade, unless she proves herself, affirmatively, innocent? Congress may, no doubt, enact by statute that this shall be so. It may or may not be well that Congress should so enact. But neither the spirit nor the decisions of the common law, as yet, have ever declared that such a presumption has existence anywhere in the law of evidence.

The country is desirous to see the African slave-trade exterminated. It may be said to have a deep interest in hastening that result. But it should be more desirous still-it has no interest deeper-that the great laws of evidence, by which property and reputation and life itself are maintained, be scrupulously respected. Not only justice, but justice judicially administered, and to be administered, is the standing interest of all commonwealths; of this not less than of any other. We address ourselves to the 'judicial conscience' of the court. We protest against the doctrine laid down in the District Court, that men are to be deprived of property, life, and character-for a forfeit of all these are the penalties of engaging in the slave-trade-on any 'suspicions,' however strong. When we hear a learned judge of America, in this nineteenth century, thus speaking from the seat of judgment, it is well to recur to the wisdom of a former day. A great English chancellor spake differently. 'Suspicions among thoughts,' said he, 'are like bats among birds; they fly ever by twilight. Certainly they are to be repressed, or at the least well guarded; for they could the mind. They are defeets, not in the heart, but in the brain. There is nothing makes a man suspect more than to know little; and, therefore, men should remedy suspicion by seeking to know more, and not to keep their suspicions in smother.'

Mr. Assistant Attorney-General Ashton, for the United States.

The slave-trade, it is known, is carried on at this moment to a frightful extent on American vessels from American ports, and by the aid of American capital. Millions of dollars are said to be invested in the traffic. Why is this? The fault is not with our people, nor with Congress; the last of which, from the foundation of our Government, and the former from before, have uninterruptedly, faithfully, and most conscientiously, been endeavoring to extirpate this horrid inheritance, left us as a charge by the rapacity of our British and French ancestors. The fault is not with our navy, of which so many gallant crews and officers fall annually a sacrifice to the malignant fevers of the African coast, in their service upon our Treaty squadron. And the fault has not been with our courts, whether law is administered with ability, learning, and impartiality. Yet, in spite of laws, navy, and courts, aided and supported by the feeling of the whole country, the illegal traffic continues in open day. What, again, we may ask, is the cause of this?

In this day this traffic is so managed, that while every one knows the truth of the case, the truth of the case is always defeated; that while every one can point out the felon, the felon still walks abroad, sworn to and certified an innocent man. By plan, no one reveals his true character. Fraud is ingenious in device. The trade, however amenable in reality to the law, is now carried on with a regular machinery to evade law. This is a prerequisite of the trade; an invariable part of it; a machinery which requires lies, fraud, and perjury at the bottom of everything; a machinery of agents and foreigners, regularly prearranged in anticipation of discovery; having no reality for any purpose, and no design but to circumvent justice.

General characteristics, however, still adhere. The course of a defence on a libel, such as this one, can be calculated as certainly as the course of any moral thing whose laws are settled and known to us.

In cases of guilt, the following are standing indicia:

1. A sale of the vessel, not long before the projected voyage, and generally at an extravagant price.

2. A crew-list which is false: foreigners, Portuguese and Spaniards chiefly, shipped as Americans.

3. Stock witnesses: Machados, Smalleys and Smiths,-all known at the custom-house as well as noted thieves are at the chief's of police.

4. A set of figurantes, who appear at every emergency, and in any character; owners, shippers, charterers, persons having all interest, no interest, or any interest between; and who disappear; this disappearance being just at those moments when a gibbet becomes visible in the background; the Da Costas, Hernandez, Garcias, Ottos of this case, and of every slaver libel or indictment; sometimes bearing one name, sometimes another; at one time Spaniards or Portuguese, at another our own people. An appearance, as claimants on the record, under their own or an assumed name, of parties interested in the vessel or cargo, when the seizure is first made, and their subsequent disappearance,-when their claim is to be maintained in court,-is a common characteristic.

5. A cargo scrupulously proper for the lawful trade; but with this characteristic of it, that every item of it is equally applicable to the slave-trade, and can easily and instantly be so converted and applied.

6. No attempt to show that the special voyage is a lawful one; or that a reputable house has to do with this vessel; although the whole defence is based on the fact that a lawful commerce is extensively carried on with the west coast of Africa, and that the houses which carry it on are well known, and never supposed to have in view any voyage but a lawful one. A total failure, in short, by everybody, to produce the ship's papers, showing the real purpose of the voyage or cargo, or to give the Government a clue to where such evidence might be obtained.

These characteristics of guilt consist as well in what is sure to be sworn to as in what it is never attempted to prove.

Now, all the standing characteristics appear here, and one of them strikingly. Da Costa and Hernandez, if not one myth, are plainly one man. And Hernandez appears as shipper in July, 1860, and does not appear in September following, when equally wanted, only because Da Costa was at large in the former month, and a culprit under seizure, or filed away in the latter.

But this case has special characteristics. [Mr. Ashton here arranged, grouped, and presented the particular facts in such a way as to make them bear with force upon his cause.] But we need not enforce these. We rather enunciate principles applicable not less to this than to other cases now before the court,-the Sarah, Weathergage, and Reindeer, heard, or to be heard; cases distinguishable from the present case only by having, as in the Sarah, water-casks 'in shooks,' instead of casks erected; or, as in the Weathergage, a clearance for Hong Kong vi a Ambriz, on the western coast, instead of a clearance to Cape Palmas; or, as in the third and last-named, a roundabout voyage by way of Havana, and a fraudulent attachment laid to arrest our forfeiture; cases in which the arguments may not be much reported; being, as they will be, but repetitions of those in this; and cases to be affirmed or reversed, probably, as this one may be.

We assert, as a true rule of evidence in regard to these slaver voyages, the rule laid down by the District Judge; a gentleman who brings to every class of question, high intelligence, of course, but to this class brings specially as well, an advantage which no intelligence could give,-the advantage of 'old experience' with the shipping business of our great American port. In speaking of invoking 'circumstances calculated to raise suspicions,' he may not have spoken philologically well, but he spoke well practically; for his meaning is obvious, and his idea is right. When we are dealing with the slave-dealer, we are dealing not only with the most depraved and most cruel of human beings, but one who is the most crafty also; 'one who would circumvent God.' What the learned justice meant was this: that a degree of circumstantial evidence which would be insufficient, in allegations of most crime, to convict, is enough here to put parties to the proof that their business was a lawful one. The observation was right when applied, as it was, to a class of persons whose art is the ars celare artem; to a trade where the avarice and wicked invention of Europe and America alike have been engaged for half a century, with the gallows in view before the operator, as the penalty of failure,-in reducing to a science the art of stealing men; of practising the most frightful theft of the world, and not to leave a trace of it behind. The party alleging a guilty intention is compelled, it must be remembered, to extract evidence of it from acts and preparations designed to conceal it, and to rely on such facts of suspicious aspect as accident, carelessness, or the natural incongruity between truth and falsehood, may develop. We are here inquiring into a purpose. Where the guilty purpose is hidden under the guise of a lawful enterprise, with such skill and adroitness as the slave-traders are well known to have exhibited, those suspicious facts are apt to be few and insignificant. When they are discovered and proved, their ordinary force ought to be greatly strengthened by the failure of a party on whom they are fastened to make full and frank explanation of them. And the force of such suspicions will increase in proportion as their explanation is easy to the party. The claimant, although he, and he only, holds the clues to these mysteries, will not disclose them, but chooses rather to rest under the shadow of the suspicions and presumptions they arouse, than to subject them to the light of full and free investigation.

On the whole, we apprehend that the case falls within the spirit of The Emily and Caroline. This court there said: 'There was no attempt whatever to explain the object of these peculiar fitments, or to show that the destination of the vessel was other than that of the slave-trade. We may, therefore, safely conclude, that the purpose for which these vessels were fitting was the slave-trade.'

The CHIEF JUSTICE delivered the opinion of the court.

The libel charges that the vessel was prepared at New York, in the summer of 1860, for the purpose of trade in slaves, contrary to the acts of Congress in that behalf; by reason whereof, and by virtue of the acts, the bark, her tackle, apparel, furniture, and lading became forfeited. There is no question of the construction of the acts of Congress, prohibiting the slave-trade, or of the forfeiture, if the allegations of the libel were established by proof. The case therefore turns on the evidence.

In considering this evidence, it is to be borne in mind, that for more than three hundred years the western coast of Africa has been scourged by the atrocities of the slave-trade; and that this inhuman traffic, although at length proscribed and pursued with severe penalties by nearly all Christian nations, has continued, with almost unabated activity and ferocity, even to our times. Fears of forfeiture of property, and even of life, have been easily overcome by hopes of enormous gains, and so long as markets for slaves remain open, and imperfect execution of the laws permits the expectation of profit from crime, the most conspicuous results of penal legislation will be, more cunning in the contrivance and more adroitness in the use of means for evading or defeating its intent and operation. The difficulty of penetrating the disguises of crime is enhanced in the case of the slave-trade by the circumstance that a very considerable traffic, regarded as legitimate, has sprung up and is carried on with the same African coast from which human cargoes are collected. It does not seem unreasonable, since it is the paramount interest of humanity that the traffic in men be, at all events, arrested, to require of the trader, who engages in a commerce, which, although not unlawful, is necessarily suspicious from its theatre and circumstances, that he keep his operations so clear and so distinct in their character, as to repel the imputation of prohibited purpose.

The bark Kate arrived from Havana at New York about the 17th of May, with a cargo consigned to parties there. She was then apparently owned by Benjamin Buck and Alfred Buck, of Baltimore, and was commanded by C. W. Buck as master. Some six days after her arrival, she seems to have been sold by the master, as attorney for the owners, to one Lake, for $10,500. She was registered on the 30th of May, 1860, as owned by Lake, and commanded by one Frederick Otto. Her crew-list, sworn to by Otto, on the 3d of July, 1860, does not state the rank or employment of any of the persons named, but describes one, O. F. N. Raven as born in New York, and another, Francis Stevens, as born in Louisiana. Another crew-list, made out in September, describes Raven as mate, and as born in New York, and Stevens as second mate, and as born also in New York.

The equipment of the bark was somewhat peculiar. She had an unusually large number of spars and sails; was provided with the water-casks and tanks necessary for a slaver; and had a large quantity of articles, not on her manifest, suited to the purposes of the trade.

She was twice seized: first, after being cleared and having sailed on the 3d of July, 1860, for Cape Palmas and ports on the west coast of Africa; and again, after refusal of her second application for clearance and before sailing.

The shipper's manifest, dated July 3, 1860, purporting to be of part of cargo, embraced all the articles mentioned in the manifest delivered to the custom-house, and a number of barrels of beef and tongues in addition. This shipper's manifest was signed Jose Hernandez. The record shows no manifest of her second cargo; but the return of the inspectors, under whose supervision it was unladen, shows that it was composed substantially of the same articles as the first.

When the bark was first seized, she was accompanied outside the harbor by a tug, which conveyed the captain, Otto, and one Da Costa. This Da Costa had, some four years before, been indicted for slave-trading, and had forfeited his recognizance, and had evaded the officers of the law. He pretended to be a stranger to Otto; to be ignorant of our language, and to have no connection with the bark; but trunks marked with his name were found in her cabin; he was detected exchanging signs with Otto, and it was soon discovered that his ignorance of our language was a mere pretence. Hernandez, who represented himself as shipper of part of the cargo, but whose manifest of part included every article on the custom-house manifest, and several others, never appeared to protect his interest. There is reason to think that the name was but an alias for Da Costa.

Lake, who alone intervened to claim both the bark and the cargo, says that the vessel was chartered for the African voyage, and loaded with the goods of the charterer; but he does not name the charterer, nor offer any evidence of the ownership of the goods. The proof, so far as it affords any light on this point, indicates Hernandez or Da Costa as the owner. Lake asserts that he bought the vessel for $10,500; while the appraiser's valuation is at $4000. It seems highly improbable that he paid a price so disproportioned to value, for the mere purpose of chartering her for an ordinary trading voyage. The charter-party is not produced, nor is any reason given for its non-production. The crew-list represented all the persons named on it as Americans born, and it was sworn to by Otto, but the proof shows conclusively, that neither the master nor mate were Americans, and deprives the oath, which represents the others as such, of all claim to credit.

We do not think it necessary to examine the evidence more in detail. The case presents none of the marks of an honest transaction, but bears upon it such indications of the guilty purpose to employ the bark in the slave-trade, that we should require clear explanation by convincing proof to repel the conclusion that such was her destined employment. But there is no such explanation. There is no attempt to clear the case of the damaging inferences which the destination of the voyage, the character of the vessel and cargo, and the character and acts of the parties prominently connected with both, irresistibly suggest.

We conclude, therefore, that both were rightly condemned by the District Court, and

AFFIRM ITS DECREE.

title: The Slavers (Kate)/Opinion of the Court


text: Talk:The Slavers (Kate)/Opinion of the Court


text:
The Slavers (Sarah)

LIKE the preceding case, this was a libel of forfeiture, filed in the District Court for the Southern District of New York, against a vessel and cargo, under the 1st section of the act of Congress of 22d March, 1794, and the 2d of that of 20th April, 1818, prohibiting persons engaging in the slave-trade.

The former declares that no person shall 'build, fit, equip, load, or otherwise prepare any ship or vessel, within any port or place of the United States, nor shall cause any ship or vessel to sail from any port or place within the same, for the purpose of carrying on any trade or traffic in slaves, to any foreign country; or for the purpose of procuring from any foreign kingdom, place, or country, the inhabitants of such kingdom, place, or country, to be transported to any foreign country, port, or place whatever, to be sold or disposed of as slaves; any ship or vessel so fitted out, &c., to be forfeited to the United States,' &c.

The latter is of an import essentially the same; its language being, 'for the purpose of procuring any negro, mulatto, or person of color.'

One Couillard intervened, on the 3d of May, 1861, as claimant and bailee of the cargo, which was stated to belong to R. J. Arguelles, who, however, did not in any way appear. Arguelles, or some person bearing that name, had sworn to it as of the value of $22,000. There was no denial that the vessel was on her voyage to the African coast. Her clearance, in fact, had been for Cape Palmas.

The Sarah was a bark of about 260 tons, 103 feet long, 25 feet broad, 11 feet 3 inches deep, with three masts, was similar to the Kate, condemned (supra, p. 366) for being engaged in the slave-trade. She was clipper-built, intended for fast sailing, with high and light spars, calculated to carry a press of canvas, and sharp. Her cooking-galley was 19 to 20 feet long, and wide in proportion. She had on deck a number of extra spars, similar to those on the Kate, and besides her ordinary boats, two large surf-boats. The manifest showed a large quantity (19,448 gallons) of what is called 'oil-cask shucks,' with a proportionate quantity of iron hoops and rivets. These would hold water as well as oil. It was proved that these casks-'oil casks'-are found in large quantities on nearly all vessels condemned as slavers. On examining the cargo, 15 or 16 barrels of beef or pork not on the manifest, also 16 barrels of bread and 6 barrels of flour, and 1 tierce of rice, marked for the homeward passage in plain letters, were found on the vessel. There were half a dozen water-casks on deck, besides the casks in shucks on manifest, which were of the same style as those on board the Kate.

The manifest showed 150 hogsheads of rum, also cases of muskets.

On the 7th of March, 1861, Augustus Head, Jr., of Boston, had purported to sell the bark to one 'C. P. Smith, of the city of New York,' for $9250, and he, on the 11th of March, sold her to Couillard, the intervener, for $10,000. No proof of actual sale was made. De Graw, a clerk in the custom-house for seven years, testified that, on the sale or transfer of slavers, he had noticed that there are usually two or three transfers made previous to the sailing; that he did not know of any P. C. Smith engaged in the trade; that he had looked in New York city directories carefully for C. P. Smith for five years; that the name was not there; and had looked (though in vain) in one Brooklyn directory. The claimant did not attempt to prove the existence of such a person. De Graw, the clerk above mentioned, stated that he knew the principal houses in New York engaged in the legal trade to the African coast, but did not know any such persons as Couillard or Arguelles.

The deputy marshal who seized the bark stated that he seized her fifteen miles down the New York bay. When approaching, and within half a mile of her, he saw through a spy-glass that several persons on board were examining the vessel he was on, and that immediately after, from the vessel which they were watching, somebody threw a box, about 2 by 3 feet in size, overboard, which sank. Couillard was on board, in command, when this occurred. He gave no explanation of the fact.

In addition to the facts already stated, it appeared that one Miller, who had shipped under the name of Reed, had authority to ship men for the voyage, and to exercise control in the absence of Captain Couillard. He stated to a seaman named Delano that he was to be the actual master of the vessel. He shipped Delano under the name of Comstock, and paid his advance-money.

Delano swore that Miller, 'on board, acted as captain, mate, and all hands,' and signed receipts for the cargo. Miller, in the act of employing Delano, represented himself as master of the vessel; said 'he was going to the coast of Africa; was going black-birding,' and sometimes used the word 'ebony,' and tried to induce the witness to go along by giving him liquor, and by promises of large profits. He said, 'If you go with me, you will be gone about four months, and have about $3000 or $4000 when you get back.' On another occasion, he said that 'he was going over to the coast of Africa, and wanted me to go as second mate.' Such, at least, was the testimony of some of these parties. There was, however, no more specific evidence against the vessel. No manacles nor unusual supply of medicines were found on her, and the cargo was one which would have suited a lawful voyage to the African coast.

The District Court condemned the bark. The Circuit Court affirmed the decree. Appeal here. After an able argument by Mr. Evarts for the appellant, and by Mr. Coffey, special counsel of the United States, contra,--

Mr. Justice CLIFFORD delivered the opinion of this court.

title: The Slavers (Sarah)


text: Talk:The Slavers (Sarah)

title: Talk:The Slavers (Sarah)


text:
The Slavers (Sarah)/Opinion of the Court

This was a case of seizure and forfeiture, and the case comes before the court on appeal from a decree of the Circuit Court of the United States for the Southern District of New York.

Referring to the transcript, it will be seen that the libel of information was against the bark Sarah, her tackle, apparel, and furniture, and the lading on board, and that a decree was entered in the District Court condemning both the vessel, &c., and her cargo, as forfeited to the use of the United States. Appeal was taken by the claimant to the Circuit Court, where the parties were again heard, but the Circuit Court affirmed the decree, and the claimant again appealed to this court.

1. Allegations of the libel are founded upon the first section of the act of the twenty-second of March, 1794, and the second section of the act of the twentieth of April, 1818, prohibiting any person or persons from engaging in the slave-trade. In order to entitle the libellants to a decree of condemnation, they must prove either that the vessel was fitted, equipped, loaded, or otherwise prepared for the voyage, or that she was caused to sail on the voyage in which she was engaged for the purpose of carrying on a trade or traffic in slaves to some foreign country, or for the purpose of procuring from some foreign country, &c., the inhabitants of such country, to be transported to some other foreign country, port, or place, to be sold or disposed of as slaves, or for the purpose of procuring negroes, mulattoes, or persons of color from some foreign country, to be transported to any port or place whatsoever, to be held, sold, or otherwise disposed of as slaves, or to be held to service or labor.

2. Intervening for the interest of himself as owner of the bark and bailee of the cargo, the appellant, on the third day of May, 1861, made claim in the District Court to the vessel and cargo, averring that he was in possession of the same at the time of the seizure, and that he was the true and bona fide owner of the vessel and the bailee of the cargo on board. One of the charges is the fitting out of the vessel, and the other is the causing the vessel to sail, either of which, if proved, will induce a forfeiture. Full proof is exhibited that the vessel had completed her fitting, equipment, and lading, and that she was avowedly proceeding on a voyage to the west coast of Africa, when she was boarded and seized. Obviously, therefore, the main question is one of fact, whether she was fitted out, equipped, and loaded, and was proceeding to that coast for the purpose of a lawful trade, or for the purpose of engaging in the trade or traffic in slaves. Undoubtedly, the statutory offence is completed when the preparations for the voyage have reached a stage which shows satisfactorily that the purpose of the fitting and equipment was such as is described in the libel of information. Plainly, the object of the law is to prevent the preparation of vessels in our ports for that trade; and, consequently, the law looks at the intention, and confers the authority to take from the offender the means required to enable him to perpetrate the mischief.

3. Argument for the United States is that the evidence clearly shows that the voyage for which the bark was fitted and prepared, and which she commenced from the port of New York under a clearance for Cape Palmas, on the western coast of Africa, was undertaken for the purpose and with the intent of engaging in the slave-traffic. Claimant denies that proposition, and insists that the evidence offered to prove the allegation is wholly insufficient to warrant any such finding, and, consequently, that both the District and Circuit Courts were in error. He admits, however, that the character of the vessel, her size, build, and equipment, do not absolutely exclude the conclusion that she was capable of such service. Denial of the fact involved in the admission could not well be made, because the proofs are full to the point, not only that she was capable of such service, but that she was, in all respects, well suited to the service, and, indeed, that she was such a vessel as those engaged in the nefarious traffic usually select as best modelled for such an adventure.

4. Unlike what is usual in cases of this description, the destination of the vessel is admitted; and it cannot be denied that the destination would have carried her to markets where it is known that the traffic in slaves is prosecuted. Proofs show that she was a vessel of about two hundred and sixty tons burden; that she was a hundred and three feet in length, twenty-five feet in breadth, and eleven feet and three inches deep. She was clipper-built, with three masts, and was adapted for a large press of canvas, and was fast-sailing. Expert witnesses also say that she had a number of extra spars on her deck, similar to other vessels condemned as slavers; and that besides her ordinary boats, she had two large surf-boats not needed by a vessel bound to a regular commercial port. Certain articles of the cargo are also significant of an unlawful purpose. Unusually large quantities of shooks for casks appear on the manifest, and also a proportionate quantity of iron for hoops and rivets for fastening the same. 'Casks in shooks' are the words of the manifest, and the quantity stated is nineteen thousand four hundred and forty-eight gallons for oil; but it is quite obvious that the shooks, when set up and hooped, would be as suitable to hold fresh drinking-water as oil; and the evidence shows that they are found in large quantities on most or all of the vessels condemned as slavers. Some half dozen water-casks were on deck, besides the casks in shooks appearing on the manifest. Fifteen barrels of beef and pork were found on board not on the manifest, and sixteen barrels of bread, and six barrels of flour, and one tierce of rice, plainly marked for the homeward voyage. Other articles on the manifest, which deserve notice, are ten cases of muskets, eleven hogsheads of tobacco, and one hundred and fifty hogsheads of rum, which, the expert witnesses say, is a well-known article of trade in the purchase of negroes. One of the expert witnesses, who had been an entrance and clearance clerk in the custom-house at New York for seven years, testified that he had noticed that vessels designed to be used in the slave-trade were usually transferred two or three times just previous to the sailing of the vessel; and in this case it appears that the bark was, on the seventh day of March, 1861, sold by one Augustus Head to one C. P. Smith, of the city of New York, for the sum of nine thousand two hundred and fifty dollars; and that the purchaser, four days afterwards, conveyed the same to the present owner. None of the witnesses know the last-named grantor, and one of them testifies that he has looked carefully into the directories of the city of New York and of the city of Brooklyn for the last five years, and that he can find no such name. Suspicion also attaches to the conduct of the present owner, both in his character as such, and as master for the voyage, and he has not employed any proper means to repel that suspicion. He has produced a bill of sale from C. P. Smith, but he has not introduced the grantor as a witness or either of the witnesses of the bill of sale. And he has failed to show, what might easily be proved, if true, that he actually paid the consideration expressed in the bill of sale or any other sum for the vessel, or that there is or ever was any such person as the one therein named as his grantor.

5. Common prudence required him to explain these matters, and yet he has neglected to do so; and he has also neglected to furnish other explanations of equal importance: As, for example: the bill of lading discloses the fact that the vessel was under a charter-party, but he neither produces the instrument nor attempts to account for its absence. Testimony was also introduced by the libellants showing, beyond controversy, that as the boarding officers approached the vessel for the purpose of seizing her, some person or persons on board the bark were seen to throw overboard a large box, which immediately sank, and yet the claimant does not attempt to explain the transaction. Although he claims as bailee of the cargo, still he offers no proof to show where or by whom it was purchased, or how or by whom it was paid for, and furnishes no explanation upon the subject. Evidence to show that he was engaged in any legitimate trade to that quarter of the globe, or that he had any connection with any commercial house lawfully trading on that coast, is entirely wanting; and it does not appear that he had made any arrangements for an honest return cargo. Large quantities of beef, pork, and bread, not on the manifest, were found on board, but he offers no explanation of the matter, and does not even examine the mate or any one of the crew. Shipper of the cargo, R. J. Arguelles, is not introduced, although it appears that the value of the shipment, as sworn to by him, was twenty-two thousand dollars; still, he does not appear as claimant, nor is he examined as a witness. Appellant claims the cargo as bailee, but he nowhere states or proves for whom he is bailee, and nothing in the case shows satisfactorily who is the real owner of the goods.

6. Considered as a whole, the various circumstances to which reference has been made afford very strong ground of presumption that the allegations of the libel of information are true. Evidence which satisfies the mind of the truth of the fact in dispute, to the entire exclusion of every reasonably doubt, says Mr. Starkie, constitutes full proof of the fact, and it would seem that the combined force of these various circumstances can scarcely fail to generate that full belief.

Doubt cannot be entertained, that the circumstances adverted to are fully established, and it is certain that they are consistent with the hypothesis assumed by the United States. Some of them, it must be admitted, if separately considered, are not of a conclusive nature and tendency, but taken as a whole, it is difficult to say that they do not satisfy the mind of the truth of the charge, even to the exclusion of every reasonable doubt.

7. Suppose it were otherwise, however, still there is direct evidence in the case which, when considered in connection with the circumstantial facts, fully establishes the charge. Reference is here made to the statements of the mate, who is proved to have shipped under a false name, and the whole evidence shows that he had authority to ship men for the voyage, and to exercise control in the absence of the master. Suggestion of the appellees is that he was to have been the master for the voyage, and it must be admitted that there are many facts and circumstances in the case which give countenance to that theory, but it is unnecessary to determine the point in this investigation, as it is clearly proved that he was authorized to ship men as part of the crew, and to perform the duties of master, when the person recognized as such in the ship's papers was absent. Seaman Delano was shipped by him under the name of Comstock, and he collected his advance-money from the clerk of the shipping notaries, and paid it to the seaman as one of the crew. Delano testifies that the mate 'acted as master, mate and all hands,' and it is fully shown that he signed receipts for cargo. While in the act of employing the seaman, when clearly he was acting as master of the vessel, he stated that he was going to the coast of Africa, and that he was to be master of the vessel. He also 'said he was going blackbirding,' and endeavored to persuade the witness to enlist and go with him, by promises of large profits. Among other things, he also stated that they would be gone about four months, and that the witnesses, if he would go, would have three or four thousand dollars when he got back; and on another occasion, he stated that the bark was going on a trading voyage to the African coast, and would probably bring back some negroes. Viewed in connection with the circumstantial evidence, these statements are regarded as affording full proof of the truth of the allegations contained in the libel of information. Such were the views of the District and Circuit Courts, and we have no doubt they are correct.

The decree of the Circuit Court is therefore

AFFIRMED.


text: Talk:The Slavers (Sarah)/Opinion of the Court