text: Talk:In the Matters of Howard

title: Talk:In the Matters of Howard


text:
In the Matters of Howard/Opinion of the Court

There is no ground for supposing any intention on the part of the circuit judges, or of either of them, to evade or disobey the mandate of this court. Their action has been dictated entirely from an opinion held by them that parties asserting a right to share in a common fund in the custody of the court, and presenting a prim a facie case in support of such asserted right, are entitled to be heard at any time before its actual distribution, although a decree ordering such distribution in a litigation between other parties may have been entered. Whether in this opinion they are sustained by the law, is the question presented for our consideration. We are not called upon to determine the character of the claims presented, whether they constitute liens upon the fund in the hands of the receiver, or stand as simple debts against an insolvent company, or whether the right, if any ever existed, of the holders to share in the fund has been lost by their laches. The question is not as to the merits of the claims, but whether the Circuit Court was forbidden by the force of its previous decree, when affirmed by this court, from considering the claims at all.

Undoubtedly it is the duty of all inferior courts to yield a prompt obedience to the mandate of this court, or, in other words, to treat as conclusive the judgment of this court upon the law and facts presented to it in appropriate form for consideration. Any other conduct would be subversive of the relation which the Constitution intends that inferior tribunals shall hold to this court. But the obedience thus due is not a blind obedience, acting upon the letter of the judgment affirmed, or mandate ordered, without any consideration of the rights of persons not parties to the litigation in which the judgment was entered. The judgment of an inferior court, when affirmed by this court, is only conclusive as between the parties upon the matters involved. Viewed simply as an adjudication between them, it is not open to question. It must be followed and obeyed. The inferior court cannot reopen the case and allow new proceedings to be taken, or further evidence to be given, or new defences to be offered, upon any ground whatever. It must execute the judgment or decree, and only for that purpose has it any authority over it. Such is the purport of the numerous cases cited by the counsel for the relators. But they go no further. None of them suggest even the proposition that the judgment or decree affirmed concludes the rights of third parties not before the court, or in any respect affects their rights. It would have been against all principle and all reason had they asserted anything of the kind. There is, indeed, a class of cases affecting the personal status of parties, in which a judgment necessarily binds the whole world, but it is not of these we are speaking. We refer to judgments at law or decrees in chancery, affecting rights of parties to property. They bind only the parties before the court and those who stand in privity with them.

The counsel of the relators seek to apply the conclusive character of such judgments and decrees between parties to persons not parties, under the supposition, it would seem from their argument, that they require some additional efficacy from their affirmance by this court. But they acquire no additional efficacy by such affirmance. As adjudications upon the rights of the parties between themselves they have the same operation before as after their affirmance.

The decree in the case of Howard and others v. The City of Davenport and others, determined that the complainants and the intervening claimants were entitled to the fund in the hands of the receiver as against the defendants. It did not determine, and could not determine, that Foster and his associates had not equal or greater claims to the fund than either of those parties. They had, therefore, the same right to proceed by bill or other appropriate remedy, if there be one, to assert any claims or equity to the fund which they possessed, as they might have done if no such suit as that of Howard and others v. The City of Davenport and others, had ever been commenced or carried to final decree. And in the prosecution of their suit they were entitled, upon a proper showing, to all the remedies by injunction or order, which a court of equity usually exercises to prevent the relief sought from being defeated.

The general doctrine that where there is a fund in court to be distributed among different claimants, a decree of distribution will not preclude a claimant not embraced in its provisions, but, having rights similar to those of other claimants who are thus embraced, from asserting by bill or petition his right to share in the fund, is established by numerous authorities, both in England and the United States. Several of these are cited by counsel, to two of which we will refer. The first is that of Gillespie v. Alexander. That was a suit for the administration of the estate of General Gillespie. After several debts against the estate had been proved before a mater and been paid, the court, in January, 1825, decreed a distribution of the residue of the fund in court to the unsatisfied legatees. In November, subsequently, a party appeared claiming to be a creditor of Gillespite, and petitioned the court for liberty to prove his demand, and liberty was given. In July of the following year the master reported that there was due the petitioner over sixteen hundred pounds. In the meantime the fund had been apportioned under the decree, and part of it had been paid in discharge of some of the legacies. The master of the rolls ordered that the debt to the petitioner should be apportioned among the funds of the different legatees, whose legacies still remained in court, observing that the legatees were not without remedy, as they could call on the other legatees to contribute. From this order an appeal was taken to the chancellor, and the principal objection urged to the order was similar to the objection urged in this case, that the creditor was concluded by the decree directing distribution, but Lord Eldon, in deciding the appeal, said:

'Although the language of the decree, where an account of debts is directed, is that those who do not come in shall be excluded from the benefit of that decree, yet the course is to permit a creditor, he paying the costs of the proceedings, to prove his debt, as long as there happens to be a residuary fund in court, or in the hands of the executor, and to pay him out of that residue. If a creditor does not come in till after the executor has paid away the residue, he is not without a remedy, though he is barred the benefit of that decree. If he has a mind to sue the legatees and bring back the fund, he may do so, but he cannot affect the legatees except by suit, and he cannot affect the executor at all.'

And the chancellor ordered that the debt should be apportioned to the shares of all the legatees, and that the petitioner should be paid the sums apportioned to the shares remaining in court, and be at liberty to apply against the legatees who had been paid, and against funds which might subsequently come in, for the balance due him.

The other case to which we will refer is that of Williams v. Gibbes, decided by this court and reported in the seventeenth of Howard. In that case, the County Court of the Sixth Judicial District of Maryland had, by its decree, rendered in December, 1846, awarded to the executors of one Oliver, the proceeds of a share of one Williams in an association known as the Baltimore Company. Upon appeal to the Court of Appeals of the State, the decree of the County Court was, in this respect, affirmed. In 1852, six years after the entry of the decree, the administrator of Williams filed a bill, in the Suprem Court of Baltimore City, against the executors of Oliver, for the proceeds of Williams's share, averring that neither he nor Williams was present, or a party to, or bound by, any proceeding, or order, or decree of the County Court, or of the Court of Appeals, and that the settlement and adjustment of the amount of the partnership funds of the Baltimore Company, and of the charges, commissions, and costs to which they were liable in solido, and the distribution of the remainder of the funds by the decree of the court to the several shares, which the members of the company were entitled to, were not binding upon him or his intestate.

The case was transferred from the State court to the Circuit Court of the United States, where the bill was dismissed. On appeal to this court the decree of dismissal was reversed. Mr. Justice Nelson, speaking for the court, said:

'Now, the principle of well settled in respect to these proceedings in chancery, for the distribution of a common fund among the several parties interested, either on the application of the trustee of the fund, the executor or administrator, legatee, or next of kin, or on the application of any party in interest, that an absent party, who had no notice of the proceedings, and not guilty of wilful laches or unreasonable neglect, will not be concluded by the decree of distribution from the assertion of his right by bill or petition against the trustee, executor, or administrator; or in case they have distributed the fund in pursuance of an order of the court, against the distributees.'

And after referring to various cases from the English courts, and among others to that of Gillespie v. Alexander, already cited, said:

'The cases above referred to relate to the rights of creditors and next of kin; but the principle is equally applicable to all parties interested in a common fund brought into a court of equity for distribution among the several claimants.'

These cases, and the general principles governing courts of equity in the disposition of a common fund, of which there are several claimants, are sufficient to show that the judges of the Circuit Court were justified in authorizing Foster and his associates to file their consolidated bill, and thus present for consideration their claims to share in the fund in the hands of the receiver, and in withholding the distribution of the fund under the decree in the case of Howard and others v. The City of Davenport and others, until such claims could be considered and determined.

Whether in the determination of these claims the Circuit Court decided rightly or otherwise, can only be settled upon the hearing of the appeal from its decree.

It follows that the motion for a mandamus, and the motion to dismiss the appeal from the final decree, must both be

DENIED.

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


text: Talk:In the Matters of Howard/Opinion of the Court


text:
Frisbie v. Whitney

APPEAL from the Supreme Court of the District of Columbia; the case being thus:

In March, 1862, and for many years before, there was a large body of land in California known as the Soscol Ranch, and which was supposed by almost every one in that country to be private property. The tract covered eighteen square leagues, and included the city of Benicia, the town of Vallejo, the navy-yard of the United States, the depot of the Pacific Steamship Company, and hundreds of acres of land in cultivation and in possession of a large rural population. These parties all claimed under grants to a certain Vallejo by the Mexican government, made in 1843 and 1844, which had been presented to the Board of Land Commissioners and confirmed, and the decision of the board had been also affirmed on appeal to the District Court.

In March, 1862, the case coming before this tribunal, the court felt itself compelled to declare the grant void for want of authority in the Mexican government to make it, and on the 22d day of the month just named did so declare it; the decision not in any way impeaching the good faith of the numerous purchasers under Vallejo. However, as the act of Congress which organized the Board of Commissioners to determine the land titles in California, declared that when any of the claims presented to it should finally be decided to be invalid the land should be considered as a part of the public domain, the effect of the decision was, that the United States became the absolute owner in fee of all the property, as above described; city, town, depot, ranch, the houses, the homes, the cultivated grounds and orchards, which the persons had bought and paid for, had built on and cultivated. The occupants had nothing left, of course, but an appeal to the equity and generosity of the government.

As soon as it became generally known in Benicia, and among the population on and about the Soscol Ranch, that this court had declared the Vallejo claim void, and that the whole eighteen leagues were public land, a rush was made to secure all of it that was valuable, and which it was supposed had become subject to the pre-emption laws. The report of the register and receiver of the Land Office, who were subsequently required to investigate the claims set up to these lands, both by the Vallejo claimants and the settlers, presents the mode in which this was done. The parties desiring to make pre-emption claims generally went on the lands in the night, because they were resisted by those in possession; and in the morning a house, eight or ten feet square, with shed roof of redwood boards, set up edgewise, without window, fireplace, or floor, was discovered, the evidence of a bon a fide settlement and occupation under the pre-emption laws of the United States.

Among the persons who sought to obtain a property by pre-emption right in this land was one Whitney, who, according to his own account, entered on a quarter-section one afternoon, with his family, consisting of his wife, two children, a man, and a carpenter, with his team, goods, and household furniture. He commenced building next day, and made a better house than those above described. It had three rooms. The quarter-section on which he entered had been already occupied by one Frisbie, a son-in-law of Vallejo, and one of the numerous persons in possession under Vallejo's title. It was inclosed by a fence, had a crop not yet gathered, and a house occupied by a tenant of Frisbie. Whitney's occupation was resisted by Frisbie, who on one occasion seized a double-barrelled shot-gun of Whitney's, cocked it at him, and stood in a menacing attitude, Whitney twisting it out of his hands.

On the 3d March, 1863, after the effect of the decision in United States v. Vallejo became known, and after Congress had had time to examine into the case, that body passed an act for the benefit of these occupants of the Vallejo claim. This act authorized the lines of the public surveys to be extended over the Soscol Ranch, and enacted that bon a fide purchasers from Vallejo or his assigns might enter the lands so purchased and reduced to possession at the time of the adjudication of the Supreme Court, at one dollar and twenty-five cents per acre. Under this act Frisbie paid his money, made his entry, and finally received his patent.

When, on the other hand, shortly after his settlement above described, Whitney applied to the land officers to make his declaration of intention to occupy and cultivate the land, they refused to receive it; first, because no surveys had been made by which the land could be identified, and afterwards because Congress had passed the act already cited for the benefit of the claimants under Vallejo. He never paid any money to the government, nor did he receive a certificate of entry or pre-emption, though he offered to prove his settlement.

In this state of things Whitney filed a bill in the court below, setting forth such of the preceding facts as bore favorably on his case, setting forth also that Vallejo's title had been declared void by this court on the 24th March, 1862, and that the land had so become part of the public domain, and subject to the right of pre-emption, and that he had settled upon it, erecting a dwelling-house, which he occupied with his family, cultivating, &c.; that the act of the 3d of March, 1863, had been passed at the solicitation of Vallejo, and purchasers under him. The bill proceeded:

'But your orator insists that after the decision of the Supreme Court of the United States in March, 1862, and before the passage of the special act of March 3d, 1863, above mentioned, the said lands were by law open to pre-emption; and your orator having within that period made a bon a fide settlement, and having fully complied with all the conditions prescribed by law, is vested with the right to enter said lands.'

It, therefore, prayed that as he, Whitney, had the superior equity, Frisbie should be compelled to convey the land to him.

Frisbie answered setting forth such of the already stated facts as affected favorably his case, denying the sufficiency of the settlement set up, admitting the decision of the Supreme Court, asserting that 'the effect of that decision upon the rights of the purchasers under that grant, who had by themselves and their tenants settled and improved the land, was a question of law;' but maintaining 'that it did not subject the said land to settlement and pre-emption by strangers.'

There was no great controversy apparently about the facts, and the court below, citing and relying on United States v. Fitzgerald, Smith v. United States, Delassus v. United States, and Lytle v. The State of Arkansas, was of the opinion 'that at the date of the complainant's entry on the land in controversy, in October, 1862, it was open to actual settlement and pre-emption; that he having made his actual settlement and improvement on the land, and complied with all the terms and conditions required by law to complete his title, or tendered performance thereof, was entitled to have a patent for the land, and obtained such an interest and vested title and property therein as could not be taken from him and transferred to another, against his consent, even by an act of Congress.' It accordingly held Frisbie a trustee for Whitney, and decreed the conveyance prayed for.

The case was now brought here on appeal by Frisbie.

Messrs. Evarts, Blair, and Dick, for the appellant; Messrs. B. F. Butler and F. P. Stanton, contra.

Mr. Justice MILLER, after stating the case, delivered the opinion of the court.

title: Frisbie v. Whitney


text: Talk:Frisbie v. Whitney

title: Talk:Frisbie v. Whitney


text:
Frisbie v. Whitney/Opinion of the Court

Frisbie having become possessor of the legal title to the land in controversy, the complainant, Whitney, claims that he shall be compelled to convey it to him, because he has the superior equity; for this is a suit in a court of equity, founded on its special jurisdiction in matters of trust. It is, therefore, essential to inquire into the foundation of this supposed equity.

When, shortly after his settlement, Whitney applied to the land officers to make his declaration of intention to occupy and cultivate the land, they refused to receive it; first, because no surveys had been made by which the land could be identified, and afterwards because Congress had passed the act already cited for the benefit of the claimants under Vallejo. He never paid any money to the government, never received a certificate of entry or pre-emption, though he offered to prove up his settlement; and he claims that his intrusion on Frisbie's inclosed grounds by violence, and his offer to prove his intention to become a bon a fide occupant of the land, create an equity superior to Frisbie's, which demands of a court of chancery to divest Frisbie of his legal title and vest it in him.

If there be any principle of law which requires this, the court must be governed by it, but it is idle to pretend that such a decree would be founded in natural justice.

It is claimed on the part of the defendant in error that such a principle is found in the legislation of Congress granting the right of pre-emption to actual settlers on the public lands of the United States. The proposition is, that as soon as the decree of the Supreme Court was announced declaring the Vallejo claim invalid, the land covered by that claim became public land, subject to the operation of all the laws by which the actual settler could secure title to such lands; and that the steps taken by Whitney in this direction had so far effected this purpose, that the act of Congress for the benefit of the Vallejo claimants was ineffectual to enable Frisbie to avail himself of the benefits which it was intended to confer. We say the benefits it designed to confer, because we entertain no doubt of the intention of Congress to secure to persons situated as Frisbie was, the title to their lands, on compliance with the terms of the act, and if this has not been done it is solely because Congress had no power to enact the law in question.

The learned court whose decision we are reviewing place their judgment on the ground that, before the passage of that act, the complainant had acquired a vested right in the land, which could not be divested by any legislation of Congress. On the other hand it will hardly be contended that anything short of a vested right in this land could deprive Congress of the right which it has as owner and holder of the legal title, and, by the express language of the Constitution, to dispose of and make all needful rules and regulations respecting the territory or other property of the United States. The essential inquiry in this case, therefore, is whether complainant had acquired such a vested right, before Congress by law withdrew these lands from the operation of the preemption acts.

It has been argued that no law existed at the time Whitney went upon the land, by which unsurveyed land could be legally entered upon with a view to pre-emption. But in the view which the court takes of the matter, it may be assumed that the lands were open to pre-emption. In this concession we also propose to waive the discussion of another question which presents serious difficulties to our minds, in regard to complainant's right to make a valid pre-emption by a forcible intrusion upon land cultivated, inclosed, and peaceably occupied by another man.

But resolving this difficulty in favor of complainant for the present, we are still of opinion that he had not acquired a vested right in the land when Congress acted upon the subject.

What had he done? He had gone upon the land, built a house and barn, and perhaps inclosed some of the ground. He had also applied to the register of the land office, and offered to make a declaration that he had done these things with the intention of making a permanent settlement, and claiming the land under the right of pre-emption. This is all. He had paid no money, nor had he then tendered any. The land officers refused to receive his declaration, and denied his right to pre-empt the land. He never has paid any money, has never received any certificate of pre-emption, and the register and receiver have never, in any manner, acknowledged or admitted his right to make pre-emption of that land. So far as anything done by him is to be considered, his claim rests solely upon his going upon the land and building and residing on it. There is nothing in the essential nature of these acts to confer a vested right, or indeed any kind of claim to land, and it is necessary to resort to the pre-emption law to make out any shadow of such right.

The act of Congress on this subject, to which all the subsequent acts refer, and which prescribes the terms, and the manner of securing title in such cases, is the act of September 4th, 1841. That was an act full of generosity, for it gave the proceeds of the sales of all the public lands to the States. The tenth section of the act provides that any person of the class therein described who shall make a settlement upon public lands, of a defined character, and who shall inhabit and improve the same, and who shall erect a dwelling thereon, shall be authorized to enter with the register of the proper land office, by legal subdivisions, one quarter-section of said land, to include the residence of the claimant, upon paying the minimum price of such land. Section eleven provides that conflicting claims for pre-emption shall be settled by the register and receiver; section twelve, that prior to such entry proof of the settlement and improvement required shall be made to the satisfaction of the register and receiver; and section thirteen requires an oath to be made by the claimant before entry; section fifteen requires a person settling on land with a view to pre-emption, to file within a limited time, a statement of this intention and a description of the land.

When all these prerequisites are complied with, and the claimant has paid the price of the land, he is entitled to a certificate of entry from the register and receiver; and after a reasonable time, to enable the land officer to ascertain if there are superior claims, and if in other respects the claimant has made out his case, he is entitled to receive a patent, which for the first time invests him with the legal title to the land.

The construction of this act, and others passed since in pari materi a, in regard to the nature of the rights conferred on occupants of the public lands, has, of course, received the consideration of that department of the government to which the administration of these land laws has been confided. The construction of that department and of the Attorneys-General to whom the Secretaries of the Interior have applied for advice, cannot be better expressed than in the language of some of those opinions.

Attorney-General Cushing, in an opinion given in 1856, says: 'Persons who go upon the public land with a view to cultivate now, and to purchase hereafter, possess no rights against the United States, except such as the acts of Congress confer; and these acts do not confer on the pre-emptor, in posse, any right or claim to be treated as the present proprietor of the land, in relation to the government.'

In the matter of the Hot Springs tract of Arkansas, Attorney-General Bates says: 'A mere entry upon land, with continued occupancy and improvement thereof, gives no vested interest in it. It may, however, give, under our National land system, a privilege of pre-emption. But this is only a privilege conferred on the settler to purchase land in preference to others. . . . His settlement protects him from intrusion or purchase by others, but confers no right against the government.'

In the matter of this same Soscol Ranch, Attorney-General Speed asserts the same principle. He says: 'It is not to be doubted that settlement on the public lands of the United States, no matter how long continued, confers no right against the government. . . . The land continues subject to the absolute disposing power of Congress, until the settler has made the required proof of settlement and improvement, and has paid the requisite purchase-money.'

These opinions, written for the guidance of the Land Department, have been received and acquiesced in by the Secretaries of the Interior, and have come to be the recognized rule of action in that department.

This construction of the law has also been asserted by the courts of last resort in Missouri, Mississippi, Illinois, and California; States in which the population is largely interested in the liberal operation of the pre-emption laws.

We are satisfied that this is a sound construction of the pre-emption laws on the question now under consideration.

A series of cases decided in this court, in which the equitable rights of persons claiming under those laws have been protected by the court against the legal title acquired by other parties, through the disregard of their rights by the officers of the Land Department, is supposed to assert principles inconsistent with the construction just stated. We cannot here examine these cases in detail, but we may state that in nearly all of them it will be found that the party whose equitable title was thus protected had, by the action of the officers of the Land Department, and the payment and acceptance of the price, acquired a vested right, which these officers afterwards disregarded, in violation of law. And if in any of these cases the party, asserting successfully his equitable interest, had not acquired a vested right in the just sense of that term, the cases are still widely different from the one under consideration. In all those cases the successful party had established his legal right of preference of purchase over the other, under the law as it stood when the land officers decided the case. And it was the action of those officers, and their disregard of the law in refusing to the party the benefit of this preference in purchase, which this court corrected, by compelling the conveyance of the legal title acquired by this violation of law. But in the case before us, and in those to which the opinions of the Attorneys-General refer, it was Congress, the law-making power, which intervened, and, by a new law, withdrew the land from the operation of the pre-emption laws, while the right of preference in purchase remained unexercised, and amounted to no more than this preference.

The courts may very properly correct the injustice done by the land officers, in refusing to accord rights, however inchoate, which are protected by laws still in existence; while they can only consider vested rights, when those rights are sought to be enforced in opposition to the repeal or modification of the laws on which they were founded.

The argument is urged with much zeal that because complainant did all that was in the power of any one to do towards perfecting his claim, he should not be held responsible for what could not be done.

To this we reply, as we did in the case of Rector v. Ashly, that the rights of a claimant are to be measured by the acts of Congress, and not by what he may or may not be able to do, and if a sound construction of these acts shows that he had acquired no vested interest in the land, then, as his rights are created by the statutes, they must be governed by their provisions, whether they be hard or lenient. That was a case also in which it became important to ascertain when a right to public land became vested, and though it arose under statutes somewhat different from the general preemption law, the principles asserted there, and in the previous cases of Bagnell v. Broderick, and Barry v. Gamble, strongly support our conclusion in the present case.

DECREE REVERSED, and the case remanded, with instructions to

DISMISS THE BILL.

title: Frisbie v. Whitney/Opinion of the Court


text: Talk:Frisbie v. Whitney/Opinion of the Court


text:
Hickman v. Jones et al.

ERROR to the District Court for the Northern District of Alabama, in which court Hickman, the plaintiff in error, sued Jones, Moore, Regan, Coltart, Clay, and others, defendants in error, for maliciously causing him to be arrested, imprisoned, and prosecuted for a criminal offence, without probable cause.

Mr. R. Johnson, for the plaintiff in error; Messrs. Walker and Gordon, contra.

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

title: Hickman v. Jones et al.


text: Talk:Hickman v. Jones et al.

title: Talk:Hickman v. Jones et al.


text:
Hickman v. Jones et al./Opinion of the Court

The facts disclosed in the record, so far as it is necessary to state them, are as follows:

During the late civil war the rebel government established a court known as the 'District Court of the Confederate States of America for the Northern District of Alabama.' In that court the plaintiff in error was indicted for treason against the Confederate States. The indictment alleged that troops of the United States were in the Northern District of Alabama engaged in a hostile enterprise against the Confederate States, and that Hickman 'did traitorously then and there assemble and continue with the said troops of the said United States in the prosecution of their said expedition against the Confederate States; and then and there, with force and arms and with the traitorous intention of cooperating with the said troops of the United States in effecting the object of the said hostile expedition, did array and dispose himself with them in a hostile and warlike manner against the said Confederate States; and then and there, with force and arms, in pursuance of such his traitorous intentions, he, the said James Hickman, with the said persons, so as aforesaid assembled, armed, and arrayed in manner aforesaid, wickedly and traitorously did levy war against the said Confederate States.' Upon this indictment a warrant was issued for the arrest of Hickman. He was arrested and imprisoned accordingly. He applied to the defendant, Jones, who assumed to act as judge of the court, to be allowed to give bail. Jones rejected the application and remanded him to prison. He was subsequently tried, acquitted, and discharged. He alleges that the proceeding was without probable cause and malicious. Moore was the clerk of the pretended court. The name of Regan is signed to the indictment as district attorney, and he conducted the trial. Robert W. Coltart was deputy marshal, and Clay was the editor and publisher of the 'Huntsville Confederate,' a newspaper through which it was alleged he incited the prosecution by means of malicious attacks upon Hickman designed to produce that result. The other defendants were members of the grand jury by which the indictment was found. Testimony was given tending to show that the plaintiff sympathized with the rebellion and participated in it while the rebel power predominated in North Alabama, both before and after its first invasion by the forces of the United States. The court instructed the jury, among other things, as follows:

'If, in the case at the bar, you believe that the acts and speeches of the plaintiff, upon which the defendants rely to prove his complicity with the rebellion, were the result of anything less than a fear that if he did not so speak and act, his life or his liberty or his property would be sacrificed to his silence or his omission, you will find a verdict for the defendants.

'If, on the other hand, you believe that these acts of apparent complicity with the rebellion were performed by the plaintiff under the influence of an honest and rational apprehension that to do otherwise would expose him to persecution or prosecution, or to loss of life, liberty, or property, and that notwithstanding these acts of affiliation with the rebel community in which he lived, he was always at heart honestly and truly loyal to the government of his country, he is entitled to your verdict.'

The jury were further instructed that it was their duty to acquit the defendants, R. W. Coltart and Clay. Exceptions were duly taken by the plaintiff, and the case is brought here for review.

We have to complain in this case, as we do frequently, of the manner in which the bill of exceptions has been prepared. It contains all the evidence adduced on both sides, and the entire charge of the court. This is a direct violation of the rule of this court upon the subject. We have looked into the evidence and the charge only so far as was necessary to enable us fully to comprehend the points presented for our consideration-thus in effect reducing the bill to the dimensions which the rule prescribes. No good result can follow in any case from exceeding this standard. Our labors are unnecessarily increased, and the case intended to be presented is not unfrequently obscured and confused by the excess.

The rebellion out of which the war grew was without any legal sanction. In the eye of the law, it had the same properties as if it had been the insurrection of a county or smaller municipal territory against the State to which it belonged. The proportions and duration of the struggle did not affect its character. Nor was there a rebel government de facto in such a sense as to give any legal efficacy to its acts. It was not recognized by the National, nor by any foreign government. It was not at any time in possession of the capital of the nation. It did not for a moment displace the rightful government. That government was always in existence, always in the regular discharge of its functions, and constantly exercising all its military power to put down the resistance to its authority in the insurrectionary States. The union of the States, for all the purposes of the Constitution, is as perfect and indissoluble as the union of the integral parts of the States themselves; and nothing but revolutionary violence can, in either case, destroy the ties which hold the parts together. For the sake of humanity, certain belligerent rights were conceded to the insurgents in arms. But the recognition did not extend to the pretended government of the Confederacy. The intercourse was confined to its military authorities. In no instance was there intercourse otherwise than of this character. The rebellion was simply an armed resistance to the rightful authority of the sovereign. Such was its character in its rise, progress, and downfall. The act of the Confederate Congress creating the tribunal in question was void. It was as if it were not. The court was a nullity, and could exercise no rightful jurisdiction. The forms of law with which it clothed its proceedings gave no protection to those who, assuming to be its officers, were the instruments by which it acted. In the case before us, trespass would have been the appropriate remedy; but the authorities are clear that case also may be maintained. Each form of action is governed by its own principles. It is needless to consider them, as none of the exceptions taken relate to that subject. Our opinion will be confined to those which have been specifically mentioned.

1. The court instructed the jury to acquit the defendants, J. W. Clay and R. W. Coltart.

There was some evidence against both of them. Whether it was sufficient to warrant a verdict of guilty was a question for the jury under the instructions of the court. The learned judge mingled the duty of the court and jury, leaving to the jury no discretion but to obey the direction of the court. Where there is no evidence, or such a defect in it that the law will not permit a verdict for the plaintiff to be given, such an instruction may be properly demanded, and it is the duty of the court to give it. To refuse is error. In this case the evidence was received without objection, and was before the jury. It tended to maintain, on the part of the plaintiff, the issue which they were to try. Whether weak or strong, it was their right to pass upon it. It was not proper for the court to wrest this part of the case, more than any other, from the exercise of their judgment. The instruction given overlooked the line which separates two separate spheres of duty. Though correlative, they are distinct, and it is important to the right administration of justice that they should be kept so. It is as much within the province of the jury to decide questions of fact as of the court to decide questions of law. The jury should take the law as laid down by the court and give it full effect. But its application to the facts-and the facts themselves-it is for them to determine. These are the checks and balances which give to the trial by jury its value. Experience has approved their importance. They are indispensable to the harmony and proper efficacy of the system. Such is the law. We think the exception to this instruction was well taken.

2. The other instruction to be considered was, substantially, that if the plaintiff had himself been a traitor he could not recover against those who had been instrumental in his arrest, imprisonment, and trial for treason against the Confederacy-the treason alleged to consist in the aid which he had given to the troops of the United States while engaged in suppressing the rebellion.

As matter of law, we do not see any connection between the two elements of this proposition. Giving aid to the troops of the United States, by whomsoever given, and whatever the circumstances, was a lawful and meritorious act. If the plaintiff had before co-operated with the rebels there was a locus penitentioe, which, whenever he chose to do so, he had a right to occupy. His past or subsequent complicity with those engaged in the rebellion might affect his character, but could not take away his legal rights. It certainly could not, as matter of law, give impunity to those by whose instrumentality he was seized, imprisoned, and tried upon a capital charge for serving his country. Such a justification would be a strange anomaly. Evidence of treasonable acts on his part against the United States was alien to the issue before the jury. To admit it, was to put the plaintiff on trial as well as the defendants. The proofs upon the question thus raised might be more voluminous than those upon the issue made by the pleadings. The trial might be indefinitely prolonged. The minds of the jury could hardly fail to be darkened and confused as to the real character of the case and the duty they were called upon to discharge. The guilt of the plaintiff, if established, could in no wise affect the legal liability of the defendants; nor could the fact be received in mitigation of damages. It is well settled, that proof of the bad character of the plaintiff is inadmissible for any purpose in actions for malicious prosecution. #fn-s-s * * All the evidence upon this subject disclosed in the bill of exceptions was incompetent, and should have been excluded from going to the jury. This instruction also was erroneous.

Judgment REVERSED, and the cause remanded to the court below, with an order to issue a venire de novo.


text: Talk:Hickman v. Jones et al./Opinion of the Court


text: Star of Hope

title: Star of Hope


text: Talk:Star of Hope

title: Talk:Star of Hope