REPORTS OE OASES ARGUED AND ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES, JANUARY TERM 1840. By RICHARD PETERS, COUNSELLOR AT LAW, AND REPORTER OF THE SUPREME COURT OF THE UNITED STATES VOL. XIV. THIRD EDITION. EDITED, WITH NOTES AND REFERENCES TO LATER DECISIONS, BY FREDERICK C. BRIGHTLY, AUTHOR OF THE “FEDERAL DIGEST,” ETC. THE BANKS LAW PUBLISHING COMPANY 21 Murray Street, NEW YORK, 1899. Entered according to Act of Congress, in the year 1884, By BANKS & BROTHERS, In the office of the Librarian of Congress, at Washington. OBITUARY. THOMAS SWANN, ESQ. Mr. Gilpin, the Attorney-General, made the following remarks :—“I have been deputed by the bar to perform the melancholy duty of announcing to the court the death of Thomas Swann; and respectfully soliciting permission to have inscribed among the records of this high tribunal, the expression of their respect for his memory, and esteem for his character as a lawyer and a man. In a scene which he has so often adorned by the exercise of his genius, and distinguished professional ability ; among those who have so often admired, as friends and associates, the mild beneficence of his deportment, and his unsullied probity and worth ; it would be vain 'for me to dwell on personal traits and incidents, which are felt with more truth than I have the ability to delineate them. He was constantly called on, through a long life, to discharge important public and private trusts ; and his duty was performed without a single stain. As the reward for this, by him most prized, would have been the approbation of the chief ministers of the profession to which he was devoted, I feel well assured, that I shall not ask the court, without success, to add that sanction to the sincere and spontaneous testimony of his brethren of the bar. And I now move the court, in pursuance of the fourth resolve contained in the subjoined proceedings of the bar and officers of the court, to have said proceedings entered on the records of this court.” To which Mr. Chief Justice Taney replied :—“The court receive with great sensibility the communication made by the bar. In the death of Mr. Swann, we feel that we have lost, not only an eminent lawyer, to whom we have often listened with pleasure ; but also an esteemed and valued friend, whose kind heart, and upright principles, endeared him to all who had an opportunity of knowing him. We sincerely deplore his loss, and will cordially unite with you in paying to his memory the honors so justly due.” Whereupon, it is ordered by the court that the following proceedings be -•entered upon the minutes ; viz.— P“] iv OBITUARY. At a meeting of the gentlemen of the bar of the supreme court of the United States, and of the officers of the court, at the court-room in the Capitol, on Tuesday, the 28th instant, the Honorable Samuel L. Southard was appointed chairman,, and Francis S. Key appointed secretary. The following resolutions were submitted by General Walter Jones, and unanimously adopted, viz : Resolved, That the members of this bar, and the officers of this court, feel, with deep sensibility, the loss which the profession and the country have sustained, in the death of Thomas Swann, a member of this bar. Resolved, That we cherish the highest respect for the professional learning of the deceased; for the purity and uprightness of his professional life ; and for the amiable and excellent qualities which belonged to him as a man. Resolved, That, to testify these sentiments, we will wear the usual badge of mourning, for the residue of the term. Resolved, That Mr. Gilpin, the Attorney-General of the United States, do move the court, that these resolutions be entered upon the minutes of their proceedings. JOSEPH M. WHITE, ESQ. Mb. Gilpin, the Attorney-General of the United States, made the following remarks :—“ I have been requested, by a meeting of the members of the bar and officers of the court, to present a copy of the resolutions they have adopted, on being apprised of the death of Joseph M. White, of Florida ; and respectfully to ask that, with the approbation of the court, they may be inserted among the records of its proceedings. These records already give abundant and various evidence of the distinguished legal ability of Mr. White, and the debt of gratitude that is due from his associates, for the profound researches he made in branches of jurisprudence not previously brought to the notice of the profession ; for the light his own intellect has shed upon them ; and for the collection of authentic and necessary documents which his zeal and industry have made. Such acts entitle him to the grateful remembrance of his professional brethren ; but with these he united an amenity of manner, and a generosity of disposition, which secured him also their strong personal affection and regard. In bearing their testimony to his merits, and in expressing their feelings on his death, they will derive no small gratification, if this evidence of them is permitted to be placed in the archives of that tribunal, whose approbation is among the highest OBITUARY. v rewards to which an American lawyer can aspire. I move, in accordance with one of the resolutions to which I have referred, that these proceedings of the members of the bar and officers of the court, be entered among its records.” To which Mr. Chief Justice Taney made the following reply :—“ The court will cordially unite with the bar in paying the proposed honors to the memory of Mr. White. His learning, high character, and amiable deportment, had won for him the respect and esteem of the court; and we sincerely deplore his loss. He has been cut off in the prime of his life, and in the midst of his usefulness ; but his last work, upon a highly important branch of the law, will be an enduring monument of his talents and industry. The court will order the proceedings of the bar to be entered of record^ according to their request.” Whereupon, it is ordered by the court, that the following proceedings be entered upon the minutes ; viz.— At a meeting of the gentlemen of the bar of the supreme court of the United States, and of the officers of the court, at the court-room in the Capitol, on Tuesday, the 4th of February 1840, the Honorable Samuel L. Southard was called to the chair, and General Walter Jones appointed secretary. The following resolutions were submitted by Joseph R. Ingersoll, Esq., and unanimously adopted, viz : Resolved, That the members of this bar, and the officers of this court, feel, with deep sensibility, the loss which the profession and the country have sustained, in the death of Joseph M. White, a member of this bar. Resolved, That we cherish the highest respect for the professional learning of the deceased ; for the purity and uprightness of his professional life; and for the amiable and excellent qualities which belonged to him as a man. Resolved, That, to testify these sentiments, we will wear the usual badge of mourning, during the residue of the term. Resolved, That Mr. Gilpin, the Attorney-General of the United States, do move the court that these resolutions be entered upon the minutes of their proceedings. JUDGES OF THE SUPREME COURT OF THE UNITED STATES, DURING THE PERIOD OF THESE REPORTS. Hon. Roger B. Taney, Chief Justice. “ Joseph Story, “ Smith Thompson, ** John McLean, “ Henry Baldwin, _ __ f Associate Justices. “ James M. Wayne, Philip P. Barbour, “ John Catron. “ John McKinley,* J Henry D. Gilpin, Esq., Attorney-General. William T. Carroll, Clerk. Alexander Hunter, Marshal. Richard Peters, Reporter. * Mr. Justice McKinley was absent during the term. I™ I A TABLE OF THE NAMES OF THE CASES REPORTED IN THIS VOLUME. The References are to the Star *pages. A - *PAGE Atkins v. Dick.............. 114 B Bache, Prevail v............ 95 Bank of Alexandria v. Dyer ... 141 Bank of the Metropolis v. Gutt-schlick...................... 19 Bank .of Mount Pleasant v. * Sprigg.................... 201 Blougher v. Brewer.......... 178 Bodley, Walden v............ 156 Brantley, Fowler y.......... 318 Brashear, West v............. 51 Brewer, Blougher v.......... 178 Broadnax, Suydam v........... 67 Brown v. McGran..............479 C Carr v. Duval................ 77 Chesapeake & Ohio Canal Co. v. Smith.................... 45 Commercial & Railroad Bank v. Slocomb.................... 60 Commonwealth Bank v. Griffith 56 Comstock, Covington v........ 43 Coster, Runyan v............. 122 Craig’s Heirs v. Walden...... 147 •PASS Crenshaw, Edmonds v........ 166 Covington v. Comstock....... 43 D Decatur v. Paulding........ 497 De Valengin’s Adm’r v. Duffy.. 282 Dick, Atkins v............. 114 Duffy, De Valengin’s Adm’r v.. 282 Dunn, Games v.............. 322 Duval v. Carr............... 77 Dyer, Bank of Alexandria v.... 142 E Edmonds v. Crenshaw........ 166 Evans v. Gee................. 1 F Prevail v. Bache............. 95 Fowler v. Brantley.......... 318 G Games v. Dunn............... 322 Gee, Evans v.................. 1 Gratiot, United States v..... 576 Griffith, Commonwealth Bank v. 56 ' Guttschlick, Bank of the Metropolis v...................... 19 [ix] X CASES REPORTED. H PAGE Holmes v. Jennison........... 540 I Irvine v. Lowry.............. 293 J Jennison, Holmes v........... 540 K Kane v. Paul...................33 Keene, Preston v............. 133 Keen v. Whitaker............. 170 Kibbe, Pollard’s Heirs v..... 353 Knight, United States v....... 301 L Lattimer v. Poteet............. 4 Lenox, Mitchell v............. 49 Linthicum, Remington v....... 84 Longworth, Taylor v.......... 172 Lowry, Irvine v.............. 293 P Paul, Kane v.................. 33 Paulding, Decatur v...........497 Peters v. Warren Insurance Co. 99 Philadelphia & Trenton Rail-. road Co. v. Stimpson....... 448 Pollard’s Heirs v. Kibbe..... 353 Poteet, Latimer v.............. 4 Preston v. Keene.........t... 133 R Remington v. Linthicum....... 84 Rhode Island v. Massachusetts. 210 Runyan v. Coster............. 122 S PAGE Slocomb, Commercial & Railroad Bank v................ 60 Smith v. Chesapeake & Ohio Canal Co.................... 45 Sprigg v. Bank of Mount. Pleasant................... 201 Stone, United States v...... 524 Stimpson, Philadelphia & Trenton Railroad Co, v......... 448 Suydam v. Broadnax.......... 67 T Taylor v. Longworth........ 172 U United States v. Gratiot....526 United States v. Knight..... 301 United States v. Morris.....464 United States v. Stone..... 524 United States v. Waterman’s Heirs...................... 478 United States v. Wiggins....334 United States v. Wood....... 430 W Walden v. Bodley........... 156 Walden v. Craig’s Heirs..... 147 Warren Insurance Co., Peters v. 99 Waterman’s Heirs, United States ........................... 478 West v. Brashear............ 51 Whitaker, Keene v.......... 170 Wiggins, United States v.... 334 Wood, United States v.......430 A TABLE OF THE CASES CITED IN THIS VOLUME. The References are to the Star * pages. A ♦PAGB Ainsley v. Goff................Kyd on Awards 354............ 223 Alexander, The.................3 Mason 175..................... 469 Allen v. Callow................3 Ves. 289...................... 512 Allen v. Dundas.............'... 3 T. R. 125.................... 41 Allen v. Randolph..............4 Johns. Ch. 693................ 251 Alley v. Deschamps.............13 Ves. 225..................... 175 American Ins. Co. v. Canter....1 Pet. 542.. 391, 398, 407, 409, 532, 538 Anon...........................Pet. C. C. 1.................... 309 Ashby v. Ashby.................7 B. & Cr. 444 ................. 286 Attorney-General v. Chelsea Water-works..........................Fitzg. 195.................... 511 Attorney-General v. Sands....Hardr. 495...................... 126 Auriol v. Smith................Turn. & Russ. 122............... 223 B Bainbridge v. Wilcocks.........1 Bald. 538 ................... 485 Baird v. Bank of Washington.... 11 S. & R. 418................ 125 Baker v. Biddle................Bald. 394........................ 38 Bank of Augusta v. Earle.......13 Pet. 519, 587..........123, 129, 296 Bank of Washington v. Triplett..! Pet. 32-3.................... 320 Barney v. Patterson............ 6 Har. & Johns. 204..........89, 92 Barnitz v. Casey...............7 Cr. 456....................... 197 Barron v. Baltimore............7 Pet. 243...................555, 587 Bartlett v. Willis.............3 Mass. 105.................... 305 Beaty v. Knowler...............4 Pet. 168...................... 124 Beckford v. Wade.........’.....17 Ves. 87..................... 223 Beers v. Haughton..............9 Pet. 329............307, 309-10, 312 Bell v. Morrison...............1 Pet. 355...................... 453 Biddle v. Wilkins..............1 Pet. 686....................... 38 [xi] xi» CASES CITED. ♦page Bingham v. Cabot...............3 Dall. 19.................... 453 Binney v. Chesapeake & Ohio Canal Co..............................8 Pet. 218................ 88 Bishop of St. David’s v. Lucy ... .1 Salk. 134............... 547 Bodley v. Taylor.......,... .5 Cr. 191.................... 159 Bogardus v. Trinity Church.....4 Paige 178.................216, 224 Bollman v. Swartwout...............4 Cr. 75.................. 586 Bonham’s Case..................8 Co. 118...................182, 191 Boring v. Lemmon...............5 Har. & Johns. 223 .........89, 92 Botts v. Shields...............3 Litt. 34-5.................. 162 Boyle v. Zacharie..............6 Pet. 648..................... 2, 3 Brasher v. Van Cortlandt.......2 Johns. Ch. 245............. 116 Brashier y. Gratz..............6 Wheat. 528............... 175 Breithaupt v. Bank of Georgia.... 1 Pet. 238................ 296 Brigden v. Parkes..............2 Bos. & Pub 424............. 286 Briscoe v. Commonwealth Bank.. .11 Pet. 257 ................ 58 Brown v. Barry.................3 Dall. 365................... 510 Brown y. Maryland..............12 Wheat. 419................. 586 Browne v. Strode...............5 Cr. 103 .................... 300 Buel v. Van Ness...............8 Wheat. 321-2................ 518 Burgess v. Burgess.............1 Hagg. Cons. 368............. 187 Burroughs v. Lowder............8 Mass. 379................... 305 Burton v. Williams.............3 Wheat. 533, 535...........413, 416 Butler y. Baker................3 Co. 27..................... 51J Bywater y. Brandling ..........7 B. & Cr. 643 ............... 511 C Campbell y. Claudius...........Pet. C. C. 484..,,............. 70 Carson y. Blazer...............2 Binn. 484 .................. 124 Caufman y. Congregation........6 Binn. 63 ................. 338 Childress y. Emory.............8 Wheat. 671................... 42 Ching y. Ching ...»............6 Ves. 282 ................... 223 Chirac y. Chirac............. .2 Wheat. 259 ............... 593 Churchill y. Crease............5 Bing. 180.................. 512 Clap y. Cofran.................7 Mass. 101................... 305 Claridge y. Hoare..............14 Ves. 65, 66 ............... 261 Clarke y. Mathewson............12 Pet. 164.................... 72 Cohens y. Virginia.............6 Wheat. 390-97, 410.........70, 586 Columbia Ins. Co. y. Lawrence.... 10 Pet. 213............... 103 Columbian Ins. Co. y. Wheelright.7 Wheat. 534 .........546, 565—6 Comegys y. Vasse...............1 Pet. 212..................... 97 Commercial Bank y. Slocum.’....14 Pet. 60 .................296, 299 Commonwealth y. Baldwin........1 Watts 54 ........;.......... 309 Crowell y. Randell.............10 Pet. 391.................57, 580 Cummins y. Boyle...............1 J. J. Marsh. 481............ 117 D De la Croix y. Chamberlain.....12 Wheat. 599...........404, 407, 416 Delassus y. United States......9 Pet. 133 .................398, 409 CASES CITED. xiii *PAGH Delver v. Barnes...............I Taunt. 48, 51................ 223 De Vaux v. Salvador ...........4 Ad. & Ell. 420 ............102, 111 Dewitt v. Yates................10 Johns. 158................... 512 Dick v. Milligan.............. .2 Ves. 23 .................... 223 Donna Marianna, The............1 Dods. 91...................... 469 Douglass v. Satterlee..........11 Johns. 16.................... 169 Dozier v. Gore.................1 Litt. 164..................... 148 Drummond v. Wood...............2 Caines 310.................... 487 Dunn v. Clarke.........—.......8 Pet. 1......................... 72 E Ekins v. Macklish..............Ambl. 184-5 .................486, 494 Eliason v. Henshaw............ .4 Wheat. 228 .......*........... 82 Ellmaker v. Buckley............Iß S. & R. 72 .................. 454 Elmendorf v. Taylor............10 Wheat. 152 .................. 250 Emily, The.....................9 Wheat. 381.................... 469 Evans v. Bicknell..............6 Ves. 173, 182-92 ............. 222 Evans v. Eaton.................3 Wheat. 505.................. 453 Evans v. Eaton.................Pet. C. C. 322.................. 452 F Fairfax v. Fairfax.............5 Cr. 19 ....................... 169 Fairfax v. Hunter..............7 Cr. 618....................125, 131 Farlie v. Herring..............13 Eng. C. L. 78................ 485 Fenton v. Browne...............16 Ves. 144 .................... 222 Fenton v. Hughes...............7 Ves. 287 .................... 117 Fenwick v. Floyd...............1 Har. & Gill 174....,........... 89 Fleckner v. United States Bank.. .8 Wheat. 358 ................. 27 Fortuna, The...................1 Dods. 81...................... 469 Foster’s Case..................11 Co. 64...................... 36 Foster v. Neilson..............2 Pet. 253-4.. .16, 171, 360, 368-9, 386, 390, 393, 396-7, 408-9, 415-16, 420-1, 426-7 Fox v. Mackreth................2 Bro. C. C. 420................ 222 Freeman v. Davis...............7 Mass. 201 .................... 305 G Gage v. Currier................4 Pick. 399 .................... 511 Garcia v. Lee..................12 Pet. 511. ..16, 171, 360, 420-1, 426-7 Gibbons v. Ogden...............9 Wheat. 1 .................... 586 Gifford y. Hort................1 Sch. & Lef. 406.............. 224 Gist v. Cockey.................7 Har. & Johns. 141............ 488 Goodier y. Lake................1 Atk. 446................... 338 Goodman v. Sayers..............2 Jac. & Walk. 261 ............ 223 Governeur y. Robertson.........11 Wheat. 356................... 124 Graham v. Dyster...............6 M. & Selw. 1, 4, 5........... 496 Grant v. Raymond...............6 Pet. 218..................... 452 Green v. Biddle................8 Wheat. 16, 89-92 ..........413-14 Griffith v. Frazier............8 Cr. 9, 24..................40, 169 CASES CITED. xiv H ♦pagb Halsey u. Grant................13 Ves. 73 ................ 175 Hamilton v. Cunningham.........2 Brock. 366 ...................... 488 Handly v. Anthony..............5 Wheat. 377—84 .......... 413 Harcourt v. Gaillard...........12 Wheat. 525.. 399,400,403-5,409, 415 Hatch v. Barr..................1 Ohio 390................. 25 Hawkins v. Barney..............5 Pet. 464-5 ...................... 414 Hearne v. Tenant...............13 Ves. 289 ....................... 175 Henderson v. Poindexter........12 Wheat. 535-6. ..400, 404-5, 409, 415 .Hepburn v. Ellzey.............2 Cr. 445 ........................ 144 Hipwell v. Knight..............1 Yo. & Coll. 415.................. 175 Holland v. Boulden.............4 T. B. Monr. 148.................. 148 Holt v. Hemphill...............3 Ohio 232.......'................. 328 Hope Ins. Co. v. Boardman......5 Cr. 57 .......................... 296 Hopkirk v. Bell................3 Cr. 453, 457.................... 412 Houston v. Moore...............5 Wheat. 23, 49, 50....69, 578, 592-3 Huddlestone v. Briscoe.........11 Ves. 522......................... 85 Hunt v. Rousmanier.............8 Wheat. 203, 211 ........ 206, 485 I Irwin v. Simpson...............7 Bro. P. C. 317................. 338 J Jackson v. Todd................3 Johns. 304 ..................... 338 James v. Semmöns...............2 H. Bl. 213...................... 512 Jennings v. Newman.............4 T. R. 348 ...................... 286 Johnson v. McIntosh............8 Wheat. 589 ..................... 412 Jones v. Bennett...............1 Bro. P. C. 528................. 223 Joy v. Wirtz...................1 W. C. C. 517.................... 116 K Keene v. McDonough.............8 Pet. 310 ........................ 406 Keene v. Meade.................3 Pet. 6........................... 453 Kendal v. United States........12 Pet. 524.. .505, 509, 514, 518, 520-1, 546, 566 Kerr v. Watts..................6 Wheat. 550....................... 116 King v. Allen..................15 East 340 ...............■... . 309 King v. Dane...................5 B. & Aid. 941 ................... 435 King v. Harris................5 B. & Aid. 926 ................... 441 King v. Knill...;........ .5 B. & Aid. 929 n.................. 435 King v. Mayhew.................6 C. & P. 315.........435, 441, 446 King v. Trinity Chapel.........8 Mod. 28 .................542, 546 King v. Walker.................1 W. Bl. 286...................... 144 Kleine v. Catara...............2 Gallis. 61...................... 223 Knox v. Symonds................1 Ves. jr. 369 ................... 223 CASES CITED. xv L ♦page Lafferty v. Byers...............5 Ohio 458.................... 332 Laidlaw v. Organ................2 Wheat. 178, 195........,.... 222 Leazure v. Hillegas.............7 S. & R. 313.............124-5, 131 Lee v. Lee..................... 8 Pet. 49..................... 143 Livingston v. Moore.............7 Pet. 551-2.................. 588 London v. Liverpool.............3 Anstr. 738 ................. 261 Lucas v. Bank of Darien.........2 Stew. 280 .................. 116 Lucas v. Groning................7 Taunt. 164................486, 494 Lyle v. Bradford................7 T. B. Monr. 113............. 116 Lyon v. Richmond................2 Johns. Ch. 51............... 223 M McCarty v. Graham...............2 Sim. 285 ................. 116 McCluny v. Silliman.............2 Wheat. 369 ................. 509 McCulloch v. Maryland...........4 Wheat. 422.................532, 537 McIntire v. Hughes..............4 Bibb 187.................... 117 McKeen v. Delaney...............5 Cr. 32 .................... 304 McMillan v. McNeill.............4 Wheat. 209 .................. 71 Macbeath v. Haldimand...........1 T. R. 172................... 486 Macey v. Brooks.................4 Bibb 238................ ... 117 Marbury v. Madison..............1 Cr. 137.................505, 508-9 Margaretta, The.................2 Gallis. 519................. 453 Marine Ins. Co. v. Hodgson......7 Cr. 336 ................'.. 117 Marlatt v. Silk........*.......11 Pet. 21 .................413, 416 Martin v. Hunter................1 Wheat. 305-6, 336, 370. .4, 12, 416, 586 Mechanics’ Bank v. Bank of Columbia ..........................5 Wheat. 326.................. 486 Meer v. Kay.....................4 Taunt. 341 ................. 548 Merino, The.....................9 Wheat. 391 ................. 469 Methodist Church v. Remington.. 1 Watts 218...................124-5 Meyer v. Barker............;,. .6 Binn. 237.................... 338 Miller v. Miller................2 Dall. 1-11.................. 411 Milligan v. Milledge............3 Cr. 220, 228 ................ 262 Mills v. Bank of United States.... 11 Wheat. 431............... 320 Minoi- v. Tillotson.............7 Pet. 101..................... 338 Mitchel v. United States........9 Pet. 734.................... 398 Mollan v. Torrance..............9 Wheat. 537 .................. 72 Moore v. Bank of the Metropolis.. 13 Pet. 310................... 89 Morgan v. Mather............... 2 Ves. jr. 18................. 223 Morgan v. Morgan................2 Wheat. 290, 297 ............. 72 Morris v. Huntington............1 Paine 348 ................... 451 Murray v. Baker.................3 Wheat. 541................. 144 N New Orleans v. De Armas.........9 Pet. 236..............391, 414, 416 New Orleans v. United States ... .10 Pet. 735 ............. 414, 416 CASES CITED. xvi ♦pAea New Orleans v. Winter..........1 Wheat. 91..................... 296 New York v. Miln...............11 Pet. 105.............553, 568, 586 O Ogden v. Saunders..............12 Wheat. 213 ,................ 71, 75 Osborne v. Leeds...............5 Ves. 384 ................... 512 Owings v. Hull ................9 Pet. 626 ............... 339, 346 Owings v. Marshall. ...........3 Bibb 27..................... 149 P Parker v. Branoker.............22 Pick. 40 ,................... 484 Patapsco Ins. Co. v. Coulter....3 Pet. 222 .................. 103 Patterson v. Jenks..............2 Pet. 216, 231................ 18 Peggy, The.....................1 Cr. 1Q9-10.................412, 415 Penny v. Martin.................4 Johns. Ch. 566.............. 222 People v. Rossiter..............4 Cow. 143 ................... 309 Perring v. Hone.................4 Bing. 28 .................. 485 Pizarro, The.................. .2 Wheat. 242 ................. 413 Poole v. Fleeger...............11 Pet. 185......241, 390, 399, 409-11, 415, 420-1 Pothonier v. Dawson............Holt 383.....................484, 496 Powell v. Graham...............7 Taunt. 580 ................... 286 Powell v. Jones................1 Esp. 17....................... 485 Pratt v. Carroll...............8 Cr. 471....................... 175 Pratt v. Law...................9 Cr. 456 .. ^..........,........ 175 . Preston v. Browder............. 1 Wheat. 124................. 468 Purcell v. McNamara............14 Ves. 91...................... 223 Q Queen v. Paty..................2 Salk. 508 ; 2 Ld. Raym. 1105; Holt 526, 543...........563-4, 567 R Randall v. Van Vechten.........19 Johns. 60..................... 29 •Randolph v. Donaldson.........9 Cr. 85........................ 311 Rees y. Warwick................2 B. & Aid. 113, 133.........485, 494 Renner v. Bank of Columbia.....9 Wheat. 581.................. 320 Rex v. Armagh..................8 Mod. 8.................... 512 Rex y. Cator...................4 Burr. 2026 .................. 511 Rex v. Lee.....................2 Russ. Cr. & M. 78 ........... 438 Rex y. Loxdale.................1 Burr. 447 ................... 511 Reynolds v. Reynolds...........3 Wend. 240 .................... 286 Rhode Island y. Massachusetts._12 Pet. 748.............358, 409, 416 Rice v. Austin.................17 Mass. 200 ................... 485 Robinson v. Campbell...........3 Wheat. 218-20............ .410, 413-15 Rowe y. Teed...................15 Ves. 377-8................... 262 Russell y. Clarke..............7 Cr. 69........................ 116 CASES CITED. xvii S *PAGB Scottv. Hanson.................1 Sim. 13........................... 222 Scott v. Lloyd.................12 Pet. 145......................... 298 Seton v. Slade.................7 Ves. 265.......................... 175 Shaw v. Cooper.................7 Pet. 292 ......................... 452 Shelby v. Guy..................11 Wheat. 361...................... 144 Shepard «.Merrill..............2 Johns. Ch. 276.................... 223 Sheppard v. Taylor.............5 Pet. 710........................... 97 Sibly v. Williams..............3 Gill & Johns. 63-4................ 286 Simonds v. White.. ............2 B. & Cr. 805 ..................... 112 Sims v. Irvine.................3 Dall. 426 ..................413, 416 Smith v. Bank of Scotland......1 Dow P. C. 272 ................... 222 Smith v. Union Bank............5 Pet. 518........................... 35 Soulard v. United States.......4 Pet. 511..............390, 398, 409 South Sea Co. v. Bumstead......1 Eq. Cas. Abr. 77.................. 223 Spencer v. Spencer.............1 Gallis. 624 ...................... 338 St. Albans v. Beau clerk.......2 Atk. 638 ......................... 511 State v. Hayward...............1 Nott & McCord 546................ 439 Stevenson v. Sullivant.........5 Wheat. 207 ......................195-6 Stoughton v. Baker.............4 Mass. 528......................... 309 Strawbridge v. Curtiss.........3 Cr. 267 .....................62, 64 Strother v. Lucas..............12 Pet. 435..............398, 409, 416 Sturges v. Crowninshield.......4 Wheat. 122, 196..71, 75, 576,591, 593 Sullivan v. Redfield ..........1 Paine 477................. 453 Sumner v. Williams.............8 Mass. 198 ....................... 286 T Thompson v. Dougherty........... .3 J. J. Marsh. 564 .......;... 149 Toland v. Sprague..............12 Pet. 330-1 ..................... 299 Torrington v. Hargrave.........5 Bing. 492 ....................... 512 Trower v. Newcome..............3 Meriv. 704 ....................... 222 Trull v. Wilson................9 Mass. 152 ....................... 305 Turner v. Cox..................5 Litt. 175......................... 117 U United States v. Arredondo......6 Pet. 745-6.. .340, 342, 398, 408-9, 416 United States v. Bevans......... .3 Wheat. 336 .................... 586 United States v. Cantrill.......4 Cr. 167 .................... 185 United States v. Clarke........8 Pet. 453 ............ 340, 397, 408 United States v. Crosby.........7 Cr. 115....................... 124 United States v. Delespine.....12 Pet. 656..................339, 346 United States v. Fisher........2 Cr. 358, 397.................36, 69 United States v. Gooding.......12 Wheat. 460 ...................... 469 United States v. Greene.......4 Mason 433 ........................ 309 United States v. Hewes.Crabbe 307 ......................... 309 Vnited States v. Hoar..........2 Mason 311, 314.............70, 309 United States v. Jones.......8 Pet. 382 ......................... 339 U/iited States v. Kingsley.....12 Pet. 477, 486 ...340, 350, 376,420 7^ Vol. XIV—B xviii CASES CITED. ♦page United States v. Laub............12 Pet. 5........................ 31 United States v. Liddle..........2 W. C. C. 205.................. 453 United States v. Mills...........12 Pet. 215..................... 340 United States y. Myers...........2 Brock. 516.................... 72 United States y. Noah............1 Paine 368.................... 30*7 United States v. Percheman.......7 Pet. 84, 97.. . .338, 340, 342, 344, 346, 398, 407-8, 416 United States v. Quincy..........6 Pet. 464 ..................... 469 United States v. Sibbald.........10 Pet. 313 .................340, 344 United States v. Wilson..........8 Wheat. 256 ................... 309 United States v. Wiltberger......5 Wheat. 96..................... 469 United States Bank y. Deveaux.. .5 Cr. 61...................62, 64, 296 United States Bank v. Halstead.. .10 Wheat. 54, 59..........71, 309-12 V Verplanck v. Mercantile Ins. Co.. .2 Paige 438................... 116 AV Walden v. Craig..................9 Wheat. 576 ................... 149 Ward v. Van Bokkelen.............2 Paige 289 .................. 116 Ware v. Hylton...................3 Dall. 235-84.................. 412 Waters y. Merchants’ Louisville Ins. Co.......................11 Pet. 213.................... 103 Wayman y. Southard...............10 Wheat. 41..........71, 309-10, 316 Wendell y. Van Rensselaer........1 Johns. Ch. 341................ 116 Weston y. Charleston.............2 Pet. 450, 461. .518, 546-7, 563, 566, 586 Wheaton y. Sexton................4 Wheat. 503..................... 89 Whitbread y. Brockhurst..........1 Bro. C. C. 404.............. 261 Wilcox y. Hunt...................13 Pet. 378 .................... 309 Williams y. Maus.................6 Watts 278.................... 124 Williams y. Pritchard............4 T. R. 2....................... 511 Wilson y. Blackbird Creek Co... .2 Pet. 251-2 ................... 592 Wilson y. Mason..................1 Cr. 91-2....................... 70 Winn y. Patterson................9 Pet. 675 .................... 339 Wood y. Coghill..................7 T. B. Monr. 601............... 148 Wood y. Griffith ................ 1 Swanst. 55.........?......... 223 Wormley y. Wormley...............8 Wheat. 421.......•.......... 298 Y Yates y. People..................6 Johns. 337.............544, 564, 567 Young y. Walter..................9 Ves. 364 ..................... 223 Z Zoit y. Millauden. ..............16 Mart. 470 ................... 484 RULES AND ORDERS OF THE SUPREME COURT OF THE UNITED STATES. It is ordered by the court, that the rule, No. 36, passed at January term 1830, be altered, so that the last sentence thereof shall read as follows : “ Every cause which shall have been twice called in its order, and passed, and put at the foot of the docket, shall, if not again reached during the term it is called, be continued to the next term of the court.” February 5th, 1840. [xix] I L CASES DETERMINED IN THE SUPREME COURT OF THE UNITED STATES. JANUARY TERM, 1840. Joseph Evans. Plaintiff in error, v. Sterling H. Gee, Defendant in error. Error.—Final judgment. It is the settled doctrine of the supreme court of the United States, that a writ of error does not lie from the circuit court on a refusal of a motion to quash an execution; such refusal not being a final judgment, under the 22d section of the judiciary act of 1789. Boyle v. Zacharie, 6 Pet. 648, cited and affirmed. Error to the Circuit Court for the Southern District of Alabama. In the circuit ‘court of Alabama, an action was instituted by Sterling H. Gee, the defendant in error, against Thomas Evans, on a bill of exchange drawn by Harris G. Evans in favor of Thomas Evans, on George M. Rives, of Mobile, for $5350 dated 16th December 1834, due twelve months after date, negotiable and payable at the office of discount and deposit of the branch Bank of the United States, at Mobile for value received ; and protested for non-acceptance. The declaration did not charge that notice of the non-acceptance was given to the indorser; and no proof was given at the trial of such notice. To this declaration, the defendant (the indorser of the bill) demurred, and the plaintiff was nonsuited ; afterwards, at the same term, the nonsuit was struck out, and the cause continued. At the next term, a jury was empan* nelled, who found a verdict for plaintiff, on which judgment was entered. Thomas Evans, the defendant in this judgment, died 12th September 1837 ; and on the 16th March 1838, a fieri facias issued on the judgment. * , *The administrator of the deceased made a motion to quash this exe- -* cution, at May term 1838 ; but the court overruled the motion, and gave judgment, sustaining the execution. The defendant prosecuted this writ of error. The case was argued by Eey, for the plaintiff in error. No counsel, appeared for the defendant. 14 Pet.—1 1 [Jan’y 2 SUPREME COURT Evans v. Gee. For the plaintiff in error, it was contended, that the judgment of the circuit court was erroneous, because it did not appear on the record that a plea was filed by the defendant to the plaintiff’s declaration ; or that any issue was joined before the trial of the cause. 2. No notice of the non-acceptance of the bill of exchange was charged in the declaration, nor proved at the trial. 3. No judgment was given by the court on the demurrer of the defendant. 4. The judgment of the circuit court sustaining the execution was erroneous. Mr. Key stated that the cause had been brought up, mainly, upon the motion to quash the execution ; and the question was, whether the court would sustain a writ of error on that ground : he cited, 4 Cranch 324 ; 6 Ibid. 233, 235 ; 7 Wheat. 534 ; 8 Pet. 259. In the case before the court, the execution was issued against the property of a dead man. Thomas Evans died in 1837. A case was decided by this court which goes fully upto the question in this case. Hoyle v. Zacharie, 6 Pet. 648. Catron, Justice, delivered the opinion of the court.—The principal matters appearing in the record are not now open to investigation, being the same adjudged of by this court in 1837 ; the report of which is found in. 11 Pet. 81. The original judgment against Thomas Evans was rendered at May term 1836. No execution seems to have issued until 16th March 1838, when one was taken out bearing teste the second Monday of October 1837, and returnable the second Monday of April, 1838. Nothing appears in the record showing that Thomas Evans was dead, save an affidavit of one of his sons, and the circumstance that the administrator’s name is used in prosecuting the writ of error : but no suggestion of the death of Thomas Evans, n®r any revival of the judgment against his administrator, is found. The execution was levied on sundry slaves, and a bond given for their delivery, which recites that the execution, in virtue of which the levy was made, bore teste at May term 1836 ; and to this date the writ may have had relation, by the laws of Alabama, and the facts of the case. One of the-sons of Thomas Evans made an affidavit, stating his father to have died on the 12th day of September 1837, on which the motion to quash the execution and delivery-bond was founded. The motion was refused; but for what. 1 particular reason, does not *appear ; nor does this court feel itself ■ authorized to inquire. It is the settled doctrine here, that a writ of error does not lie upon the refusal of a motion to quash an execution ; such record of refusal not being a final judgment in the sense of the 22d section of the judiciary act. We will content ourselves by referring to the opinion of the court in the cause of Boyle v. Zacharie, 6 Pet. 654. It is, therefore, ordered, that the writ of error be dismissed, and the supersedeas discharged. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the southern district of Alabama, and was argued by counsel: On consideration whereof, it is ordered and adjudged by this court, that this writ of error be and the same is hereby dismissed, with costs ; and that this cause be and the same is hereby remanded to the said circuit court, with directions to proceed therein according to law and justice. 2 1840] OF THE UNITED STATES. ♦4 *Tlie Lessee of Margaret Lattimer and others, Plaintiffs in error, v. William Poteet, Defendant in error. Indian treaties. Ejectment for 49,920 acres of land, in the state of North Carolina, claimed by the plaintiffs under a grant from the state, dated 20th July 1796, to William Cathcart, founded on entries made in the office of the entry-taker, in the county of Buncombe, in the state of North Carolina, after the 3d of February 179,5, within the limits of the county; the land lay wholly within the limits of the territory specially described and set forth in tbe fifth section of the act of 1783, entitled an act for opening the land-office of the state of North Carolina. The claim of the plaintiffs in the ejectment was resisted, on the ground, that the grant under which the plaintiffs claimed, was, at the time of its emanation, wholly within the territory allotted to the Cherokee Indians, and was null and void ; as such entries and grants were prohibited by the sixth section of the act. It was held, that the title under which the plaintiffs claimed, was invalid. Construction of the treaties with the Cherokee Indians, relative to lands within the boundary, and of the acts of the legislature of the state of North Carolina, relative to the occupation and entry of lands within the Indian boundary. It will not be denied, that the parties to a treaty are competent to determine any dispute respecting its limits ; in no mode can a controversy of this nature be as satisfactorily determined as by the contracting parties. If their language in the treaty be wholly indefinite, or the natural objects called for uncertain or contradictory, there is no power but that which formed the treaty which can remedy such defects. It is a sound principle of law, and applies to the treaty-making power of the government of the United States, whether exercised with a foreign nation or an Indian tribe, that all questions of boundary may be settled by the parties to the treaty; and to the exercise of that high function of the government, within its constitutional powers, neither the rights of a state, nor of an individual, can be interposed. The Indian title being a right of occupancy, the state of North Carolina had the power to grant the fee in those lands, subject to this right. Error to the Circuit Court of North Carolina. This case was argued at January term 1839, by Coxe, for the plaintiffs in error; and by Webster, for the defendant. It was held under advisement until this term. The case is fully stated in the opinion of the court. McLean, Justice, delivered the opinion.—This case comes before the court on a writ of error to the circuit court of North Carolina. The lessors of the plaintiff brought their action of ejectment, to recover the possession of 49,920 acres of land, in Haywood county, described in the declaration by metes and bounds. On the trial, certain exceptions were taken by the plaintiff to the rulings of the court ; and the verdict being not guilty, a judgment in favor of the defendant was entered. To revise this judgment, this writ of error is prosecuted. The lessors of the plaintiff, to sustain their action, offered in evidence a grant from North Carolina to William Cathcart, for tbe land described in the declaration, dated the 20th July 1796, and founded *on entries made in the entry-taker’s office of the county of Buncombe, in said •- 5 state, in the year 1795, within the limits of said county. It was admitted, that the title, if any, had descended to the lessors of the plaintiff, and that, at the commencement of the action, the defendant was in possession ; and also, that the land was within the limits of the territory described in the fifth section of the act of North Carolina, of 1783, entitled an act. for opening the land-office for the redemption of specie and other certificates, &c. 3 5 SUPREME COURT [Jan’y Lattimer v. Poteet. And the great questions arising out of the instructions are, whether, at the dates of the entry and grant, the land was within the Indian country ? and if it was, whether the entry and grant were void ? The limits of the Indian country, within the state of North Carolina, were established by treaties made between the United States and the Cherokee tribe of Indians. The first treaty was concluded at Hopewell, the 20th November 1785. The fourth article of this treaty declared, “ that the boundary allotted to the Cherokees for their hunting-grounds, between the said Indians and the citizens of the United States, &c., shall begin at the mouth of Duck river, on the Tennessee ; thence running northeast to the ridge dividing the waters running into Cumberland from those running into the Tennessee ; thence easterly, along the said ridge, to a northeast line, to be run, which shall strike the river Cumberland, forty miles above Nashville ; thence, along the said line, to the river ; thence, up the said river, to the ford where the Kentucky road crosses the river ; thence to Campbell’s line,* near Cumberland Gap ; thence to the mouth of Cloud’s creek on Holston, thence to the Chimney-top mountain ; thtnce to Camp creek, near the mouth of Big Limestone on Nalichuchey ; thence, a southerly course, six miles, to a mountain; thence south, to the North Carolina line ; thence to the South Carolina Indian boundary ; and along the same, south-west, over the top of the Occunna mountain, till it shall strike Tugalo river ; thence, a direct line, to the top of the Currahee mountain ; thence to the head of the south fork of the Occunna river.” The treaty of Holston, which was concluded the 2d July 1791, altered the limits, as established by the Hopewell treaty, and declared that “ the line should begin at the top of the Currahee mountain, where the creek line passes it; thence, a direct line to Tugalo river ; thence, north-east, to the Occunna mountain, and over the same, along the South Carolina Indian boundary, to the North Carolina boundary ; thence, north, to a point from which a line is to be extended to the river Clinch, that shall pass the Holston at the ridge which divides the waters running into Little river from those running into the Tennessee ; thence, up the river Clinch, to Campbell’s line, and along the same, to the top of Cumberland mountain ; thence, a direct line, to the Cumberland river, where the Kentucky road crosses it; thence, down the Cumberland river, to a point from which a south-west line will strike the ridge which divides the waters of Cumberland from those of Duck river, forty miles above Nashville ; *thence, down the said ridge, to a point J from whence a south-west line will strike the mouth of Duck river. And in order to preclude for ever all disputes relative to the said boundary, the same shall be ascertained and marked plainly, by three persons appointed on the part of the United States, and three Cherokees on the part of their nation.” Another treaty was made with the Cherokees, at Philadelphia, the 26th June 1794, in which it was stated that the treaty of Holston had not been fully carried into effect ; and in the second article, it was “ stipulated, that the boundaries mentioned in the fourth article of the said treaty shall be actually ascertained and marked, in the manner prescribed by the said article, whenever the Cherokee nation shall have ninety days’ notice of the time and place at which the commissioners of the United States intend to commence their operation.” 4 1840] OF THE UNITED STATES. 6 Lattimer v. Poteet. The whole extent of the line designated by this treaty, never appears to have been run and marked. Some parts of it were not run, because the country through which it passed was mountainous and uninhabitable. On the 7th October 1792 (1 American State Papers, Indian Affairs, 630), Governor Blount having given the notice to the Cherokees required by the treaty, under the directions of the secretary of war, instructed David Campbell, Charles McClung and John McKee, commissioners for extending the line between the United States and the Cherokees, according to the treaty of Holston, to meet the next day, at Major Craig’s, on Nine Mile creek, to extend the line. And they were instructed, in case the commissioners appeared on the part of the Indians, to run the line ; but if the Indians did not attend, they were required to examine where the ridge which divides the waters running into Little river from those running into the Tennessee, strikes the Holston ; and extend the line from thence to Clinch river ; and again from the ridge to the Chilhowee mountain, paying strict regard to the treaty. In their report, thé 30th November ensuing, the commissioners say, that “the commissioners on the part of the Cherokees did not attend ; and we proceeded to examine with great attention for the ridge which divides the waters of the Tennessee from those of Little river, and tracing it, found it a plain leading ridge, and that it struck the Holston at the mouth ; but, having heard it suggested, that the Indians had in contemplation, at the time the treaty was made, a ridge which they supposed would strike the Holston higher up, we did not content ourselves, but retraced the ridge, and examined well the south bank of the Holston, and the result was, that we were perfectly convinced, that the ridge which divides the waters of Tennessee and Little river, strikes the Holston at the mouth, and at no other part. We then proceeded to run, but not to mark, a line of experiment, from the point of the ridge, in a south-east direction, to the Chilhowee mountain, distance seventeen and a half miles, and again from thence to the Clinch, in a north-west direction, distance nine miles, and *found that line, r continued to the south-east, would intersect the Tennessee, shortly L after it crossed the Chilhowee mountain, consequently, take away all the Indian towns lying along the south side of the Tennessee. This showed the necessity of turning the direction more to the east and w’est ; and it is our opinion, that a line extended from the point of the ridge aforesaid, south sixty degrees east, to Chilhowee mountain, again from the point, north sixty degrees west, will form the true line from Chilhowee mountain to Clinch, between the United States and the Cherokees, according to the treaty of Holston. The more fully to elucidate this report, we present you with a map, which we believe is nearly correct, on which both the lines are laid down.” This line left several white settlers within the Indian lands. In transmitting this report to the war department, Governor Blount remarks, “ As the geography of the country generally cannot be known to you, there being no correct map of it, I think it necessary to inform you, that the country to the east or rather south-east of Chilhowee mountain, through which the line reported upon, if continued beyond it, will pass, for fifty or sixty miles, is an entire bed, or ledge after ledge, of mountains, that is, until it intersects the line which is to be extended south from the north boundary of North Carolina, near which no settlements can be formed; 5 T SUPREME COURT [Jan’y Lattimer v. Poteet. hence, I conclude, it will not be essential to extend it. That which the line reported on will intersect, if continued, meaning that which runs south from the north boundary of North Carolina, I caused to be run, and marked, about sixty miles from the mouth of McNamee’s creek to Rutherford’s war trace, by Mr. Joseph Harden, in the course of last winter. Harden did not run north, as required by the treaty of Holston, but south, according to the treaty of Hopewell.” The writer then states certain parts of the line, which, in his opinion, need not be run. In a letter from Governor Blount to the secretary of war (1 American State Papers, Indian Affairs, 629), dated July 15th, 1791, in reference to the treaty of Holston, concluded the 2d of the same month, he says, . the court should not, on slight ground, set aside the pro- J ceeding. It is contended, that as the complainants, or at least some of them, entered under the title of Walden, as purchasers from Craig, the principle of landlord and tenant applies; at least, so far as to prevent the. setting up of a title adverse to that under which they entered. Craig claimed a certain part of the entry of Walden, as purchaser under Kenton, the locator ; and he sold to some of the complainants ; but as his title was not sustained, the purchasers under him become interested in the entries of Bodley and others, and received conveyances from them. It is a general rule, that a tenant shall not dispute his landlord’s title ; but this rule is subject to certain exceptions. If a tenant disclaims the tenure, and claims the fee in his own right, of which the landlord has notice, the relation of landlord and tenant is put an end to, and the tenant becomes a trespasser, and is liable to be turned out of the possession, though the period of his lease has not expired. 3 Pet. 47. The same relation as that of landlord and tenant subsists between a trustee and the cestui que trust, as it regards the title. In the case of .Botts v. Shield’s Heirs, 3 Litt. 34-5, the court of appeals decided, that a purchaser of land, who enters into the possession of it, under an executory contract, shall not set up another title. But a purchaser’ who has obtained a conveyance, holds adversely to the vendor, and may controvert his title. 4 Litt. 274. It appears from Kenton’s deposition, that he was paid in land-warrants for making Walden’s entry, and that he had not, in fact, a shadow of right to any part of this land. He assigned the contract with Walden to locate the land, to Fox and Wood ; and afterwards paid them in discharge of this contract, by a conveyance of land, located by the land-warrants received from Walden ; but the contract was not surrendered nor cancelled. So that Craig, as purchaser, procured neither the equitable nor legal title to any part of the land in Walden’s entry. The claim of Craig appears to have been purchased by Bodley and others, who at the time claimed under conflicting and adverse entries to that of Walden, with the assent of the first purchasers from Craig ; and then deeds were executed to them. The original purchasers from Craig, who afterwards received deeds from Bodley and others, are deceased ; and the lapse of time, and change of circumstances, have been so great, that we do not think the complainants, or any part of them, can be precluded, on the ground of their purchase from Craig, from setting up a title adverse to that of 134 1840] OF THE UNITED STATES. 162 Walden v. Bodley. Walden’s. The persons who entered under Craig were, in fact, trespassers ; for they had no title which could protect their possession, or shelter them from the consequences of wrongdoers. But on this point we go no further than to say, that such an entry, under the circumstances of this case, does not preclude *the complainants from relying on the adversary titles set up in their bill. Whether any other effect may result from this entry, as it regards any other right than the title asserted in the bill, we do not decide. The counsel for the appellant contend, that the decree of the circuit ■court should be reversed, on the ground, that although Walden was decreed to release his title to such parts of the land covered by his original survey, and not included in the survey of his entry under the order of the court, yet the tenants on the land to which Walden had the better title were not required to execute releases of their title to him. But we think there is no error in the decree in this respect. Walden had the elder legal title for the land included in his first survey ; it was, therefore, necessary to decree a conveyance or release from him to the tenants who established a paramount equitable title. But as to the land within the corrected survey, he had the elder equitable as well as legal title ; it was, therefore, unnecessary to decree releases from the tenants, who, from facts before the court, had neither the equitable nor legal title. There are other considerations which show the correctness of the decree in this respect. The tenants in possession were not parties to the suit ; and the court did not know the nature or extent of their right. It was clear, that so far as their right was made known to the court by the bill and answer, they had no title to release. Not being parties to the suit, it is very clear, that the court could not divest them of any interest which was not divested, as a legal consequence of the recovery of the ejectment suits. Forty years have nearly elapsed since Walden recovered his judgments. Delays, perhaps, without precedent in this country, have occurred in realizing the fruits of these judgments. To some extent, these delays may be attributed to the expiration of the demises ; but they are chiefly to be ascribed to the injunctions which have been granted. And now the demises, though extended fifty years from 1789, have again expired. And it appears from the records in the ejectment cases, which are before us as evidence, that thé decease of some of the defendants renders a revivor of the judgments necessary, before writs of possession can be issued. When the final decree was entered in the circuit court, the demise had some years to run ; and that court, we think very properly, refused to decree a surrender of the possession by the tenants to Walden, but dissolved the injunction. This, under ordinary circumstances, would have given to Walden all the relief he could ask ; and, as was said by the counsel for the complainants, all the relief he prays for in his answer. But new and unexpected delays have occurred, until the demises have expired ; and the judgments have become dead, by the decease of a part of the defendants. And a question here arises, whether, on the affirmance of the decrees of the circuit court, it is not the duty of this court, under the cir-cumstances of this case, to direct the circuit court to have the value *■ of the improvements estimated, the rents and profits ascertained, and also any damage which may have been done to the land ; and then, under an 135 164 SUPREME COURT [Jan’y Walden v. Bodley. order or decree that the tenants should relinquish the possession to Walden, to issue a writ of possession, in pursuance of the practice of a court of chancery in Kentucky. This in effect would be the same as the decree of the circuit court; and it would seem, that it is the only effectual mode by which this protracted controversy can be terminated, within any reasonable time. The remedy at law is obstructed by the expiration of the demises, and the death of defendants in the judgments. And if this court have the case before them so as to send it down with the above directions, we think they are bound to do so. It would be a reproach to the administration of justice, if in this case, the parties should be left, by the decision of this court, apparently,' as remote from a final determination of it, as they were forty vears ago. It is true, the answer prays merely for a dissolution of the injunction, and that the bill may be dismissed. But the court have, by the bill, answer and evidence, the equities of the parties before them ; and having jurisdiction of the main points, they may settle the whole matter. A court of equity cannot act upon a case which is not fairly made by the bill and answer. But it is not necessary that these should point out, in detail, the means which the court shall adopt in giving relief. Under the general prayer for relief, the court will often extend relief beyond the specific prayer, and not exactly in accordance with it. Where a case for relief is made in the bill, it may be given, by imposing co.nditions on the complainant, consistently with the rules of equity, in the discretion of the court. In their decree, the circuit court required Walden to surrender the possession of the land he was directed to release to the complainants ; and the court had, unquestionably, the power to decree a surrender of the possession to Walden, by the tenants of the land recovered by him. This was not done, it is presumed, because it was thought the possession could be obtained under the judgments, on the dissolution of the injunction. But this, for the reasons stated, cannot now be done. The remedy under the judgments, as they now stand, must be attended with additional expense and delay; and having the case before us, we think it is our duty to put an end to this controversy. Forty years ago Walden recovered the land by virtue of his legal,right; and we now decide in favor of his equity. He should, therefore, have the aid of the court in attaining the object he has so long and so perseveringly pursued ; and that without unnecessary delay. Being satisfied with the decrees made in the cases stated by the circuit court, they are affirmed, with the following modification: The cause will be sent down to the circuit court, with directions to take such steps in * _ regard to the improvements, and to the putting *of Walden or his ‘ J representative in possession of the premises recovered in the ejectment suits, as shall be conformable to the decrees affirmed, and the principles of equity. And as it regards any title or claim which the tenants or any part of them may set up under the statute of limitations ; as the proper parties are not before us, nor the necessary facts, we do not decide on such title or claim. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Kentucky, and was argued by counsel: On consideration whereof, it is now here ordered, adjudged and decreed by this court, that the decrees of the said circuit court 136 1840] OF THE UNITED STATES. 165 Edmonds v. Crenshaw. in the cases stated by the said circuit court be and the same are hereby affirmed ; with the modification, that this cause be and same is hereby remanded to the said circuit court, with directions to that court to take such further steps in regard to the improvements, and to the putting of Walden or his representative in possession of the promises recovered in the ejectment suits, as shall be conformable to the decrees hereby affirmed, and to the principles of equity.1 * Jefferson S. Edmonds and others, Appellants, v. Anderson [*166 Crenshaw, Appellee. Powers and responsibilities of executors. Where there are two executors in a will, it is clear, that each has a right to receive the debts due to the estate, and all other assets which shall come into his hands ; and he is answerable for the assets he receives; this responsibility results from the right to receive, and the nature of the trust. A payment of the sums received by him to his co-executor, will not discharge him from his liability to the estate; he is bound to account for all assets which come into his hands, and to appropriate them according to the directions of the will.2 Executors are not liable to each other; but each is liable to the cestuis que trust and devisees, to the full extent of the funds received by him. The removal of an executor from a state in which the will was proved, and in which letters-testamentary were granted, does not discharge him from his liability as executor; much less does it release him from his liability for assets received by him and paid over to his coexecutor. Appeal from the Circuit Court for the Southern District of Alabama. The appellee, with one James McMorris, wasj by the will of Aaron Cates, of South Carolina, made on the 8th day of February 1816, and proved on the 15th of the same month, appointed executor of the will. Letters-testa-mentary were granted to both the executors. The will directed the estate of the testator to be sold ; and after the payment of the debts, directed the executors to invest the residue of the proceeds of the estate in stocks, for the benefit of certain persons named in the will; and who were appellants in this case. The estate was sold, and the accounts were settled by the executors with the ordinary. The executors failed to invest the proceeds of the sales in stocks. This bill was filed to compel a performance of the directions of the will by the appellee. The defendant in the circuit court, stated in his answer, that the moneys of the estate were not invested in stocks, in consequence of the opposition of one of the legatees, a complainant in the bill; and because the sums collected were not sufficiently large. That, although at the time of the taking out the letters-testamentary, he was a resident of South Carolina, yet, that in 1819, he removed to Alabama, having first delivered over to his co-executor, McMorris, all the assets of the estate which had evei* come to his hands, and took the receipt of the co-executor for the same, which receipt he filed with the court of ordinary which had granted the letters-testamentary, and surrendered to the co-executor the exclusive management of the estate of the testator. McMorris had become insolvent. The case was heard on the bill, answer and the receipt; and the circuit For a further decision in this long pending ease, see 9 How. 34. 2 See notes to Brown's Appeal, 1 Dall. 311. 137 166 SUPREME COURT [Jan’/ Edmonds v. Crenshaw. court ordered the bill to be dismissed. From this decree, an appeal was prosecuted to this court. * .. *The case was argued by Key, for the appellants. No counsel -* appeared for the appellee. For the appellants, it was contended, that the defendant was bound to invest the proceeds of the sales in the stocks, as directed by the will of Aaron Cates ; and that for any loss occasioned by his failure to do so, he was liable. The renunciation was of no effect. No discharge from liabilities as executor can be obtained, without the action of the court. His liabilities continued, and they were not changed or diminished by his removal to Alabama. The receipt given to him by his co-executor had no operation on his responsibilities under the will. While it will be admitted, that one executor is not liable for payments made to a co-executor; it is denied, that a payment of the money by one executor to another, instead of a compliance with the will, by investing the money, has no effect on those liabilities. Cited, 1 Williams on Executors 148-9 ; Ambl. 117 ; 2 P. Wins. 1124 ; 1 Vent. 335 ; 2 Bro. C. C. 117 ; 2 P. & W. 498 ; Prec. in Chan. 173 ; 2 Sch. & Lef. 245 ; 7 East 246 ; 11 Johns. 16, 116 ; 16 Ves. 478 ; 1 Merriv. 711 ; 1 P. Wms. 241. McLean, Justice, delivered the opinion of the court.—This is an appeal from the circuit court of Alabama. The complainants represent themselves to be the devisees of Aaron Cates, deceased, who, on the 7th of February 1816, made his will, in which he required all his estate, both real and personal, to be sold at public auction, by his executors, on a credit of one, two and three years ; the purchaser to give two good freehold securities and a mortgage on the property, to secure the payments. Three bequests, of $100 each, were made to certain individuals, to one of whom he gave his wearing apparel. After the payment of these bequests, his funeral expenses, and ten per cent, on moneys collected by his executors, he directed that his executors should vest the entire balance, including the net proceeds of his estate then in their hands, in bank-stock, or in shares or capital of such companies or corporations as in their judgments should be most proper and productive, in trust for certain uses, and subject to certain restrictions ; and he appointed “his friends, Anderson Crenshaw and James McMorris, executors ; and on the death of either, the survivor was to be sole executor, with power of appointing, either by deed or by will, a proper person to carry into effect the provisions of the will.” On the death of the testator, the executors proved the will in the ordinary’s office for Newberry district, in the state of South Carolina, and qualified as executors. They caused the property to be appraised and sold, and made returns thereof to the above office ; the sale-bill, they allege, amounted to the sum of $21,144. And the *1681 comP^a’nan^s *state, that at the time of his decease, the testator had -* a considerable sum of money on hand, and that many debts on accounts, notes, bonds and mortgages, were due to him ; and afterwards came into the hands of his executors. The bill alleges, that the defendant, one of the executors, some years since, removed from the state of South Carolina to the state of Alabama, without vesting or causing to be vested any part of the funds belonging to 138 1840] 168 OF THE UNITED STATES. Edmonds v. Crenshaw. the estate, in the hands of the executors. That the defendant left the state of South Carolina, without settling the estate or accounting for the funds which came into his hands ; that McMorris continued to act as executor ; and that there is in the hands of the executors about the sum of $16,000, funds of the estate ; and that they have neglected and refused to account for and pay over the same. That McMorris is insolvent; and the complainants pray that the executors may account, &c. The defendant, Crenshaw, in his answer, admits that Aaron Cates made the will, as stated in the bill, and that it was proved ; that he was qualified with McMorris as executor, made the returns to the ordinary as stated, but does not recollect the amount of the estate. He states, that a part of the estate sold by the executors was recovered from the purchasers, by others ; and that debts to a considerable amount were paid by the executors. He * admits, that in the year 1819, he removed to Alabama ; and that the executors, previous to this time, made no investment of the funds, because the amount on hand was small, and Mrs. Wadlington, one of the legatees, and only daughter of the testator ; and who was the natural guardian of her -then infant children, who were the principal legatees, opposed such investment by every means in her power. And the defendant states, that before he left South Carolina, he surrendered up and delivered over to McMorris, * his co-executor, all the assets of the estate which had come to his hands ; including cash, evidences of debt, and other liabilities ; and took from him a receipt, which is made a part of the answer. That until this time, he and his executor had made correct returns to the ordinary of their proceedings ; and that since then, he has not intermeddled with the estate. The parties agreed to go to a hearing on the bill and answer ; and that the receipt referred to in the answer given by McMorris to the defendant, should be considered as duly proved. On the bill, answer and receipt, the question arises, whether the defendant is discharged from the trust under the will ? Where there are two executors in a will, it is clear that each has a right to receive the debts due to the estate, and all other assets which shall come into his hands ; and he is responsible for the assets he receives. This responsibility results from the right to receive, and the nature of the trust ; and how can he discharge himself from this reponsibility ? In this case, the defendant has attempted to discharge himself from responsibility by paying over the assets received by him to *his co-executor. But such payment cannot dis- „ - charge him. Having received the assets in his capacity of executor, L he is bound to account for the same : and he must show that he has made -the investment required by the will, or in some other mode, and in conformity with the trust, has applied the funds. One executor, having re- -ceived funds, cannot exonerate himself, and shift the trust to his co-exec-uter, by paying over to him the sums received. Each executor has a right ' to receive the debts due to the estate, and discharge the debtors ; but this -rule does not apply as between the executors. They stand upon equal ground, having equal rights, and the same reponsibilities. They are not . liable to each other, but each is liable to the cestuis que trust, to the full -extent of the funds he receives. Douglass v. Satterlee, 11 Johns. 16 ; Fair-fax s Executors v. Fairfax, 5 Cranch 19. The removal of the defendant from the state did not render him incapa- 139 169 SUPREME COURT [Jan’y Keene v. Whitaker. ble of discharging his duties as executor ; much less did it release him O O b 7 from the assets he received and paid over to his co-executor. In the case of Griffith v. Frazier, 8 Crunch 9, this court held, “that an executor who absents himself from the state, after taking out letters-testamentary, is still capable of performing, and is bound to perform, all the duties of executor.” This was a case where there was but one executor. The liability of the defendant arises under the laws of South Carolina, which regulated his duties as executor. He is responsible for all the assets of whatsoever kind which came into his hands as executor ; and which he has not accounted for and paid over, as directed by the will. The circuit court held, that the facts set up in the answer, with the receipt of his co-executor, releases the defendant from his trust; and from all responsibility under it. In this the court erred, and their decree, on this grond, is reversed and annulled ; and the cause is remanded to that court, with directions to have an account taken of all the assets which came into the possession of the defendant as executor, and to enter a decree in favor of the complainants against him, for the amount he shall have received and not accounted for to the ordinary, and paid over, in conformity with this opinion. Decree reversed. *170] *Richard Raynal Keene, Plaintiff in error, v. Warren Whitaker, Laura Wade, George Dougherty, Francis Marks and C. Cunningham, Defendants in error. Cession of Louisiana. The case of Foster v. Neilson, 2 Pet. 254 ; and Garcia v. Lee, 12 Ibid. 511, which cases decide against the validity of the grants made by the Spanish government, in the territory lying west of the Perdido river, and east of the Mississippi river, after the Louisiana treaty of 1803, cited and affirmed. Appeal from the Circuit Court for the Eastern District of Louisiana. On the 26th November 1833, the appellant filed a petition in the circuit court of the eastern district of Louisiana, claiming under conveyances to him from Daniel Clarke, deceased, a tract of land, of 947 acres, part of 30,000 arpents, which, in 1804, had been granted by the Spanish intendant, Don Juan Ventura Morales, in the name of the Spanish government, to Don Gilberty Andry, who was the vendor of part of the tract to Daniel Clarke. This tract was situated in that part of what was alleged to be a part of Louisiana, by the United States, between the river Perdido and the river Mississippi, they claiming the same under the cession of France to the United States of Louisiana. The United States had asserted that this country had been transferred to France by Spain, by the treaty of St. Ildefonso, of 1800, and under the treaty with France belonged to the United States. Under this claim, the United States had caused sales of the land to be made ; and the defendants in error had become the purchasers under the United States, of the tract which the petitioner asserted to belong to him under the grant to Don Gilberty Andry. The petition prayed proceedings against those who had purchased from the United States ; and all just and legal aid in the premises. The defendants, in their answer to the petition, alleged, that subsequent y 140 1840] OF THE UNITED STATES. 17C Taylor v. Longworth. to the treaty of St. Ildefonso, of 1800, the Spanish government never had any right or title to the property claimed. By that treaty, the whole of the territory lying between Mississippi and the Perdido, including the land claimed by the plaintiff, belonged, under the treaty with France, to the United States. The property of the defendants was held under titles from the United States. The circuit court made a decree against the plaintiff, who, thereupon, prosecuted this writ of error. The case was submitted to the court, by Key and Jones, the counsel for the plaintiff in error, without argument. *Taney, Ch. J., delivered the opinion of the court.—This case comes up by writ of error from the circuit court of the United States L for the district of East Louisiana. It has been submitted by the counsel for the plaintiff in error, without argument ; and uj on looking at the case as agreed on and stated by the parties in the court below, it is evident, that the principles laid down in the case of Foster v. Neilson, 2 Pet. 254, and Garcia v. Lee, 12 Ibid. 511, must decide this case against the plaintiff. The judgment of the circuit court must, therefore, be affirmed. This cause! came on to be heard, on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, and was argued by counsel: On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed, with costs. *James Taylor, Appellant, -».Nicholas Longworth and Thomas [*172 D. Carneal, Appellees. Specific performance. Specific performance of a contract by T., for the sale by him of a lot of ground in the city of Cincinnati, was asked, by a bill filed in the circuit court for the district of Ohio, by L. The complainant in the bill had purchased the lot, and had paid, according to the contract, the proportion of the purchase-money payable to T.; by the contract, a deed, with a general warranty, was to have been given by the vendor, within three months, on which a mortgage for the balance of the purchase-money was to have been executed by the purchaser; this deed was never given, nor offered ; the purchaser went into possession of the lot, improved it, by building valuable stores upon it, and sold a part of it. A subsequent agreement was made with the vendor, as to the rate of interest to be paid on the balance of the purchase-money, the purchase was made in 1814, and the interest, as agreed upon, was regularly paid until 1822, when it was withheld. In 1822, the vendor instituted an action of ejectment for the recovery of the property, and he obtained possession of the same in 1824. In 1819, the purchaser was informed that one Chambers and wife had a claim on the lot, which wns deemed valid by counsel; and in 1823, a suit for the recovery of the lot was instituted by Chambers and wife against T. L. and others, which was depending until after 1829. In 1825, this bill was filed, claiming from T. a conveyance of the property under the contract of 1814, on the payment of the balance of the purchase-money and interest. The circuit court decreed a conveyance; and the decree was affirmed by the supreme court. ter the filing of the original bill, amended bill, and answers, the circuit court considered that ’’ who held a part of the lot purchased by L., should be made a party complainant; and he I ^ame in and submitted to such decree as might be made between the original parties : Held, that this was regular. There is no doubt, that time may be of the essence of a contract for the sale of property; it may be made so by the express stipulations of the parties, or it may arise by implication, from 141 172 SUPREME COURT [Jan’y Taylor v. Longworth. the very nature of the property, or the avowed objects of the seller or the purchaser. And even when time is not, thus, either expressly or impliedly, of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part, or if there has, in the intermediate period, been a material change in circumstances, affecting the rights, interests or obligations of the parties, in all such cases, courts of equity will refuse to decree any specific performance, upon the plain ground, that it would be inequitable and unjust. But except under circumstances of this sort, or of an analogous nature, time is not treated by courts of equity as of the essence of the contract; and relief will be given to the party who seeks it, if he has not been grossly negligent, and comes within a reasonable time, although he has not complied with the strict terms of the contract. In all such cases, the court expects the party to make out a case free from all doubt, and to show that the relief which he asks is, under all the circumstances, equitable; and to account in a reasonable manner for his delay and apparent omission of duty.1 The rule that the purchaser of property shall prepare and tender a deed of conveyance of the property to the vendor, to be executed by him, although prevailing in England, does not seem to have been adopted in some of the states of the United States. In Ohio, the rule does not prevail; the local practice ought certainly to prevail, and to constitute the proper guide in the interpretation of the terms of a contract. Longworth v. Taylor, 1 McLean 895, affirmed. » Appeal from the Circuit Court of Ohio. The appellee, Nicholas Long-worth, brought a suit, by a bill, in the circuit court of Ohio, for a specific performance of a contract made with James Taylor, for the sale, by Taylor to him, of a lot of ground in the city of Cincinnati. Afterwards, Thomas * _ D. Carneal *was made a party to the proceedings. The circuit court J made a decree in favor of the complainants ; and • the defendant, James Taylor, prosecuted this appeal. The facts of the case are stated fully in the opinion of the court. It was submitted to the court, on printed arguments, by ¡Storer and Fox, for the appellant; and by Chase, for the appellees. Story, Justice, delivered the opinion of the court.—This is an appeal from a decree of the circuit court of Ohio, in a suit in equity, brought by Longworth, the appellee, against Taylor, the appellant, for a specific performance of a contract for the purchase of land. The facts, so far as they are important, to be considered upon the present appeal, are as follows : On the 5th of April 1814, by a sealed contract between the parties, Longworth purchased of Taylor part of a lot in Cincinnati, No. 81, for the price of $125 per foot in front, whatever measurement it should hold out, one-third payable on signing the contract, one-third in six months, and the remaining third in twelve months. A deed of general warranty was to be given by Taylor, in the course of three months ; and a mortgage was to be given on the premises, by Longworth, to secure the remaining payments. On the same day, by a written indorsement on the contract, Taylor acknowledged the receipt of the sum of $2458.33, “supposed to be about the first payment.” The whole purchase-money, upon the admeasurement of the lot, amounted to $7406.25. No deed was executed by Taylor, according to the contract, nor at any time subsequent; but Longworth was put in immediate possession of the lot. When the second instalment of the purchase-money became due, it was not paid; but by an arrangement between the parties, it was postponed, upon Longworth’s agreeing to pay 1 And see Ahl v. Johnson, 20 How. 511. 142 1840] 17» OF THE UNITED ■ STATES. Taylor v. Longworth. the same interest annually thereon, as was received for dividends upon stock in the Miami bank, which was nine or ten per cent. This interest was accordingly paid up to near the close of the year 1819 ; and in the intermediate time, Longworth caused four houses to be built, for stores, on the lot, at the cost of about $4464. In the year 1819, or the beginning of 1820, Longworth was informed that one Chambers and his wife had a claim on the lot, which was deemed valid by the counsel employed to investigate it ; and that a suit would be commenced on it. A suit was accordingly commenced in equity, against Taylor, Longworth and others, in November 1823, which was not determined until after 1829. In September 1822, no interest on the purchase-money having been paid by Longworth, after 1819, Taylor commenced an action of ejectment against Longworth, for the lo^ ; and recovered possession thereof in August 1824. In June 1825, the present bill in equity was brought by Longworth, *for a specific performance of the original contract for the purchase of the lot. In the progress of the cause, several supplementary and L amended bills were filed ; and aftei’ the answers were put in, and the evidence taken, the cause came on to be heard ; and the court being of opinion, that one Carneal, a citizen of Ohio, who was assignee of one Canby, a sub-purchaser of a part of the lot from Longworth, ought to be made a party to the suit, the cause was directed to stand over ; and he was accordingly made a party plaintiff, and came in and submitted to such decree as might be made by the court in the case, as it then stood between the original parties. The cause was afterwards fully argued, and a decree for specific performance was pronounced ; from which the present appeal has been taken. Some question has been suggested in respect to the propriety of making Carneal a party at so late a stage of the cause ; and of the right of Taylor, in virtue thereof, to insist, by way of plea, upon his exemption from being sued, except in the district of Kentucky, where he resided. But we do not think that there is any valid objection to the proceedings on this account. By this general appearance to the suit, in the prior proceedings, Taylor necessarily waived any objection to the suit, founded on his residence in another district ; and he became, like every other party properly before a court of equity, subject to all the orders of the court. Whether Carneal, as a sub-purchaser, was an indispensable party, under all the circumstances of the case, may admit of doubt; but, as his being made a party in no respect changed the actual posture of the case as to the other parties, he merely submitting to be bound by the proceedings, we see no objection to his joinder in that stage of the cause, which in any degree touches either the propriety or the validity of the decree. dhe only substantial question in the cause is, whether, under all the circumstances, the plaintiff, Longworth, is entitled to a specific performance of the contract for the purchase? and upon the fullest consideration, we are of opinion, thnt he is, and that the decree is therefore right. We shall now proceed to state, in a brief manner, the grounds upon which we hold this opinion. In the first place, there is no doubt, that time may be of the essence of a contract for the sale of property. It may be made so by the express stipula-ions of the parties, or it may arise by implication, from the very nature of t e property, of the avowed objects of the seller or the purchaser. And 143 174 SUPREME COURT [Jan’y Taylor v. Longworth. even when time is not, thus, either expressly or impliedly, of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part; or if there has, in the intermediate period, been a material change of circumstances, affecting the rights, interests or obligations of the parties ; in all such cases, courts of equity will refuse to decree any specific performance, upon the plain ground, that it would be inequitable and unjust. H But except under circumstances of this sort, or of an analogous *nat-' J ure, time is not treated by courts of equity as of the essence of the contract; and relief will be decreed to the party who seeks it, if he has not been grossly negligent, and comes within a reasonable time, although he has not complied with the strict terms of the contract. But in all such cases, the court expects the party to make out a case free from all doubt; and to show that the relief which he asks is, under all the circumstances, equitable ; and to account in a reasonable manner for his delay, and apparent omission of his duty. It does not seem necessary to cite particular authorities in support of these doctrines, although they are very numerous. It will be sufficient to refer to the cases of Pratt v. Carroll, 8 Cranch 471 ; Pratt v. Law, 9 Ibid. 456, 493-4, and Trashier v. Gratz, 6 Wheat. 528, in this court; and to Seton n. Slade, 7 Ves. 265 ; Halsey v. Grant, 13 Ibid. 73, Alley v. Deschamps, Ibid. 225 ; Hearne v. Tenant, Ibid. 289, and Hipwell v. Knight, 1 Younge & Coll. 415, in England, as affording illustrations in point. In applying the doctrines above stated to the facts and circumstances of the present case, the first remark that occurs, is, that the first default was on the part of Taylor. By his contract, he undertook to make a deed of general warranty of the premises, in the course of three months after the date of the contract; the second instalment not being payable until a long time afterwards. He never made any such deed, nor offered to make it; and if he had, it is obvious, that instead of his being placed in the situation of a defendant in equity, as he now is, he would have been compelled to be a plaintiff, either to enforce a specific performance, or to rescind the contract. Now, the plain import of the words of his contract is, that he will make the deed. The excuse for the omission is, that it was the duty of the other side to prepare and tender a formal deed to him for execution. And authorities are relied on, principally from the English courts, to show, that in all cases of this sort, the established rule is, that the vendee shall prepare and tender the conveyance. This is certainly the rule in England, founded, doubtless, upon the general understanding and practice among conveyances, as well as upon the peculiar circumstances attendant upon conveyances in that country. The same rule does not seem to have been adopted generally in America, although it may be adopted in some states. In Ohio, the rule is stated by the learned judge who decided the present case, not to prevail; and the local practice, in a case of this sort, ought certainly to constitute the proper guide in the interpretations of the terms of the contract. But waiving this consideration, let us proceed to others presented by the case. Up to the close of the year 1819, there is no pretence to say, that there had been any violation of the contract on the part of the Longworth ; and no step whatever was taken by Taylor, until he brought the ejectment in 144 1840] OF THE UNITED STATES. 175 Taylor v. Longworth. 1822, to enforce the contract. That ejectment he asserts in his answer to have been brought in order to compel *Longworth to complete r*. h« the contract, or to put an end to it. In the meantime, Longworth had L been left in the possession of the premises, under the contract, had made improvements upon them, and had received the rents and profits, with the acquiescence of Taylor. Under such circumstances, where there had been a part performance, and large expenditures on one side, under the contract, and acquiescence on the other side ; it would be incompatible with established doctrines, to hold that one party could, at his own election, by a suit at law, put an end to the contract. It could be rescinded by Taylor, only by the decree of the court of equity ; which deeree would, of course, require full equity to be done to the other party, under all the circumstances. Pending the ejectment, Longworth made several propositions for payment, varying from the original conditions, all of which were declined by Taylor ; although, it seems, that Longworth supposed that some of them would have been satisfactory. The recovery in the ejectment was, of course, successful, as the legal title was in Taylor ; and the equities of Longworth could not be matters of defence to that suit. The present bill was brought in the succeeding year ; and the question is, whether, under all the circumstances of the case, Longworth is now entitled to a specific performance of the contract, upon his paying all the arrears of the purchase-money. Undoubtedly, if there were no grounds of excuse shown, accounting for the delay on his part to fulfil the contract, between September 1822, when the ejectment was brought, and June 1825, when the present bill was filed ; there might be strong reason to contend, that he was not entitled to a specific performance of the contract, even if some other relief, on account of his improvements, might be deemed equitable. But in point of fact, the adverse claim of Chambers and wife to the property, was made known as early as the year 1820 ; and was asserted by counsel, who where consulted on that occasion, to be valid. The claim was prosecuted (as has been already stated) by a suit in equity, brought in 1823, against Taylor, Longworth and others ; and remained undecided until the close of the year 1829. There is no pretence to say, that this claim was not bond fide asserted, or that Longworth brought it forward to cover his own default. While it was known and pending, there is as little pretence to say, that Longworth could be compelled to complete the contract on his side ; or that he had not a right to lie by, and await the decision of the title, which thus hung, as a cloud, upon that of Taylor. It is one thing to say, that he might waive the objection, and require a conveyance on the part of Taylor ; and quite another thing to say, that he was compellable, at once, to elect, at his peril, either to proceed on the contract, or to surrender it. There is no ground to assert that, from the commencement of the present suit, Longworth has not always been ready and willing to pay up the arrears of the purchase-money, and to complete the contract. The proofs in the case are entirely satisfactory on this head. In our opinion, *the lapse.of time is fairly accounted for by the state of the title ; and therefore, *- ongworth has not been guilty of any delay, which is unreasonable or inexcusable. her® is another view of this subject, which seems equally decisive of e merits of this controversy. If the contract had been strictly performed. 14 Pet.—10 145 177 SUPREME COURT [Jan’y Brewer v. Blougher. on the part of Taylor, by a conveyance, he would now have stood in the mere character of a mortgagee ; for in that event, Longworth stipulated to give him a mortgage for the security of the unpaid purchase-money. Now, in the view of a court of equity, that may well be deemed the true posture of this case ; upon the known principle, that equity will, for the purposes of justice, treat that to have been done, which ought to have been done. As mortgagee, which would be his character according to the real intention of both parties, Taylor could have no right to complain of the lapse of time ; and could have no claim to the improvements made by Longworth, except as security for his debt. In this view of the matter, it is wholly unimportant for us to consider, whether the amount of the rents and profits received by Longworth, was equal to, or a set-off to, his expenditures and improvements, as affirmed in the answer. Upon the whole., we are entirely satisfied with the decree of the circuit court, and it is affirmed, with costs. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel : On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs. *178] *The Lessee of Henry Brewer, Plaintiff in error, v. Jacob Blougher and Daniel Blougher, Defendants in error. Illegitimacy. Construction of the act of the legislature of Maryland, passed December session 1825, entitled . “an act relating to illegitimate children,” which provides, that “the illegitimate child or children of any female, and the issue of any such child or children,” are declared capable in law “to take and inherit both real and personal estate from their mother and from each other, and from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock.” J. S., who had several children who were the children of an incestuous connection, conveyed a tract of land in the state of Maryland to one of those children ; the grantee died intestate and without issue, seised in fee of the land; two brothers and one sister of this incestuous intercourse survived him : Held, that under the act of Maryland, “ relating to illegitimate children,” they inherited the estate of their deceased brother. It is undoubtedly the duty of the court to ascertain the meaning of the legislature, from the words used in the statute, and the subject-matter to which it relates, and to restrain its operation within narrower limits than its words import, if the court are satisfied that the literal meaning of its language would extend to cases which the legislature never designed to include in it. According to the principles of the common law, an illegitimate child is filius nullius, and can have no father known to the law; and when the legislature speaks in general terms of children of that description, without making any exceptions, the court is bound to suppose they design to include the whole class.1 Error to the Circuit Court of Maryland. An action of ejectment was instituted by the plaintiff in error, a citizen of Pennsylvania, in the circuit court of the United States for the district of Maryland, for the recovery of a tract of land, situated in Allegany county, in the state of Maryland, called “ part of Grassy Cabin.” The following were the facts of the case, as agreed upon by the parties to the suit. John Sloan, late of Allegany county, was twice married ; by his first i On this subject, see note a, to 5 Wheat. 262. 146 1840] OF THE UNITED STATES. 178 Brewer v. Blougher. wife, he had but one child, namely, Mary Sloan ; and by his second wife/ he had the following children, namely, William Sloan, John Sloan, Elizabeth Sloan, Peggy Sloan, Sally Sloan and Jane Sloan ; the plaintiff’s lessor was the husband of the said Elizabeth. After the death of his second wife, John Sloan lived and cohabited with and married Mary Sloan, his daughter by his first wife, and had by her the following children, viz., William Sloan, John Joseph Sloan, Mary Sloan, Jesse Sloan and David Sloan ; William Sloan was since dead. The said John Sloan, the father, was, many years ago, seised and possessed of a tract of land lying in Allegany county, Maryland, called “Grassy Cabin,” containing 42 7|- acres, to which tract he had an undisputed legal title. The said John Sloan being so seised and possessed of the said tract of land, conveyed the same, for a valuable consideration, by a deed of bargain and sale, duly executed, acknowledged and recorded according to law, to John Joseph Sloan, and that the said *John Joseph Sloan became and was seised and possessed of the said tract *-of land, under and by virtue of the said deed. The said John Sloan, the father, and Mary Sloan, his said daughter by his first wife, both departed this life, about the year 1826, and the said John Joseph Sloan died about the year 1832, seised and possessed of the said tract of land, intestate, and without issue, and unmarried ; leaving Mary Sloan, Jesse Sloan and David Sloan, his brothers and sister, children of the said Mary Sloan, by her said father as aforesaid, him surviving. The said Mary Sloan, Jesse Sloan and David Sloan, being possessed of and claiming title to the said tract of land, called “ Grassy Cabin,” by descent iron the said John Joseph Sloan, conveyed the same, by a deed of bargain and sale, duly executed, acknowledged and recorded according to law, to Jacob Blougher and Daniel Blougher, the defendants. After the death of the said John Joseph Sloan, the plaintiff, Henry Brewer, obtained out of the Western Shore land-office, a special warrant of escheat, to re-survey and affect the said tract of land, called “ Grassy Cabin,” for an alleged want of the heirs of John Joseph Sloan, who died seised thereof, in fee, and intestate as aforesaid ; and the patent was granted to the said Henry Brewer. The patent was in legal form, and recited the escheat of the land, “for want of heirs of John Joseph Sloan, who died seised of the premises.” The question for the decision of the circuit court, upon these facts, was, whether, upon the death of the said John Joseph Sloan, according to the laws and statutes of Maryland, the said tract of land, “ Grassy Cabin,” did not pass by descent to the said Mary Sloan, Jesse Sloan and David Sloan, is illegitimate sister and brothers as aforesaid. If the court should be of opinion, that the said tract of land did not so pass by descent, then judgment to be given, with costs, for the plaintiff. If the court should be of opinion, that the said tract of land did so pass by descent, then judgment to be given, with costs, for the defendants. Either party to be at liberty to appeal or sue out a writ of error ; it being admitted, that the value of the and in controversy was at least S2500. The circuit court gave a judgment Or the defendants ; and the plaintiff prosecuted this writ of error. he case was argued by Pigman^ for the plaintiff in error, who also sub- 147 179 SUPREME COURT [Jan’y Brewer v. Blougher. » mitted a printed argument by Mayer, also for the plaintiff. A printed argument for the defendants was submitted to the court by Price. Pigman, for the plaintiff.—The plaintiff in error; being a citizen of the state of Pennsylvania, claiming title to the tract of land called “ part of Grassy Cabin,” which is mentioned in the declaration in the record, as being in Allegany county, in the state of Maryland, brought his action of * , *ejectment against the defendants in error, residing in the latter state -* in the circuit court of the United States for the district of Maryland, to try his title to said tract of land. The plaintiff holds title to his land, by patent from the state of Maryland, issued by the legal authorities of that state, upon an escheat warrant from the land-office, by virtue of the acts of Maryland, of October session 1780, ch. 51, § 5, and 1781, ch. 20, § 8. The plaintiff applied to the land-office of the state of Maryland for his escheat warrant, upon the ground, that one John Joseph Sloan died in the state of Maryland, intestate, seised in fee-simple of the land mentioned in his patent, without issue, and without heir or heirs who could have inherited. The facts upon which the questions of law will arise are settled by agreement filed by consent, and make part of the record. The act of 1780, ch. 51, § 5, enacts, “ that any lands within the state of Maryland, of which any person shall die seised in fee-simple, without any heir of the whole blood who could inherit, or without leaving any relative of the half blood, such lands shall escheat to the state.” And by the act of 1781, ch. 20, § 8, escheat warrants are authorized to be issued from the landoffice, “ when the owner shall die intestate, seised in fee-simple, without having any relation of the half blood, within two degrees, as the same are reckoned by the common law, and without leaving any relation who might inherit.” v It appears by the agreement of counsel filed in the cause, that one John Sloan, late of Allegany county, was twice married : by his first wife, he had but one child, namely, Mary Sloan ; and by his second wife, he had the following children, namely, William Sloan, John Sloan, Elizabeth Sloan, Peggy Sloan, Sally Sloan and Jane Sloan. After the death of his second wife, the said John Sloan lived, and cohabited with, and married, Mary Sloan, his said daughter by his first wife ; and had by her the following children, namely, William Sloan, John Joseph Sloan, Mary Sloan, Jesse Sloan and David Sloan ; and that William Sloan is since dead. The said John Sloan being seised and possessed of a tract of land lying in Allegany county, called “Grassy Cabin,” containing 427^- acres, conveyed the same, by deed of bargain and sale, for a valuable consideration, to the said John Joseph Sloan. The said John Joseph Sloan died about the year 1832, seised and possessed of the said tract of land, intestate, and without issue, and unmarried, leaving Mary Sloan, Jesse Sloan and David Sloan, his brothers and sister, children of the said Mary Sloan, by her father, as aforesaid. The said Mary, Jesse and David conveyed the said tract of land, by deed, to Jacob Blougher and Daniel Blougher, the defendants. After the death of the said John Joseph Sloan, the plaintiff in error obtained out of * _ the Western Shore land-office, in the state of Maryland, *a warrant of escheat, to re-survey and affect the said tract of land, called 148 J 840] OF THE UNITED STATES. 181 Brewer v. Blougher. “ Grassy Cabin,” for want of heirs of John Joseph Sloan, and obtained his patent, which patent appears in the record. The question for the decision of the circuit court, by the agreement filed, was, whether upon the death of the said John Joseph Sloan, according to the laws and statutes of Maryland, the said tract of land, called “ Grassy Cabin,” did not descend to the said Mary Sloan, Jesse Sloan and David Sloan, his illegitimate sister and brothers as aforesaid. The circuit court, upon the facts stated, gave judgment for the defendants, upon the ground, that the said tract of land did descend to the said Mary Sloan, Jesse Sloari and David Sloan, from which judgment, the plaintiff appealed to this court. It is admitted in the statement of facts, that John Joseph Sloan, and his brothers and sister, the children of John and Mary Sloan, as aforesaid, were illegitimate ; the marriage of the father and daughtei* being prohibited and made void by a law of Maryland, entitled, “ an act concerning marriage,” passed in 1777, ch. 12. At common law, therefore, John Joseph Sloan, and his brothers and sister, being bastards, in the eye of the law, were nullius filius, and incapable of inheriting as heirs, either to their putative father, or mother, or to any one else ; and John Joseph Sloan, in regard to the^ common law, having died intestate, and without heirs of his own body, the tract of land called, “ Grassy Cabin,” escheated to the state of Maryland,, and was properly granted by patent to the plaintiff in error. But it is contended on the part of the defendants, that by a law of Maryland, of 1825, ch. 156, entitled, “an act relating to illegitimate children,”' the brothers and sister of John Joseph Sloan, who survived him, were such heirs-at-law, and relations of their deceased brother, to whom his said estate might descend ; and that said estate did not, therefore, escheat to the state of Maryland. We contend on the part of the plaintiff in error, that the circuit court committed an error in this ; that upon the statement of facts and the laws of the state of Maryland, the judgment of the circuit court ought to have been given for the plaintiff, and not for the defendants : 1. Because the plaintiff’s patent for his land, issued by the legal authorities of the state of Maryland is good, and that he had, therefore, a right to recover his title in the circuit court; the said John Joseph Sloan having died intestate, without issue, or heirs or relations that could inherit. 2. Because, notwithstanding, y the letter of said law, there is but one category of illegitimate children ; it was never intended to extend to children of incest; $nd more especially, to children of incest from father and daughter. 3. Because the law of 1825, ch. 156, from its letter and terms, is morally and legally impossible to e executed with any reasonable certainty ; and cannot be executed in any o its parts, if the whole *ought not to be received, in consequence of t e absurdities to which it leads. 4. Because the proviso of the law L is repugnant to, and contradicts its purview, or first providing clause, and| ren ers the whole null and void. 5. Because it was not the intention of the. egislature to embrace any illegitimate children, but those who could be. marriage and acknowledgment of the parents. . , regard to the first and second points, it is not necessary to proceed W1 an extended argument, because the correctness of the position contained 14Q 182 SUPREME COURT fJan’y Brewer v. Blougher. in them depends upon the other points stated, and more especially, perhaps, on the fifth. In regard to the third, it is proper to observe, that the act of 1825, ch. 156, has never received any construction by the Maryland courts ; and is, therefore, open for the judgment of this court, and must now be finally settled by it. As it stands upon the statute book, with all its latitudinous letter, it is sui generis. Though of an exceedingly general and comprehensive character, it occupies but a small space in print. At a first glance, it appears to be sensible enough, as the offspring of a grave legislative body. But when we approach it with sedate and sober inquiry, to ascertain its meaning and bearing, and the great design of the Maryland lawgivers of 1825 ; it may by termed, not inaptly, monomaniac ; without great caution, in bringing to our aid the most rigid rules of construction, it will carry Maryland back, without the intention of her legislature, to the most dark and uncivilized ages of antiquity. It is no well-inspired oracle, but rather a rickety bantling of the law, that ought not to thrive in the nursery of judicature. To enable us the more clearly and successfully to present our objections to this act, we will present to the court the incontrovertible law-maxim settled by Lord Coke, and his associates, in Dr. Bonham's Case, in 8 Co. 118. It was in that case settled, that when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law shall control it, and adjudge it to be void. In discussing this maxim, so sound and pregnant with good sense, we shall apply it by analogy to the act under consideration. This maxim, if applicable to the act in question, will not only be entitled to great reverence and respect, but will be received as proper law, to overthrow and altogether reject the act of 1825. All legislative enactments which change and restrain the common law, shall be taken stricti juris (19 Vin. Abr. 524, § 125) ; and this rule will be claimed as settled, both in regard to our objections to the act in limine, which are intended to overthrow and reject it ; and in discussing its merits, when looking for the meaning and intention of the legislature. The original design of the first move of the Maryland legislature of the * session of 1825, appears to have been to provide, that from *and after ■* the passage of the act, the illegitimate children of any female should be able and capable in law to take and inherit both real and personal estate from their mother, or from each other, derived from their mother, in like manner as if born in lawful wedlock. This, with proper guards and limitations, would have been sensible and right enough ; and the only mischief to result from it, would be to indirectly encourage the illicit commerce of the sexes. But it more accords with natural justice, that the illegitimate children of any female, within proper limits, should inherit her estate, rather than her brothers and sisters and other collaterals. But how utterly thoughtless and careless, even in this, the legislature has been! Suppose, such female should have illegitimate children by one man, and afterwards marry another, and have children in lawful wedlock, and dies seised of real and personal estate, how shall such estate descend ? To the illicit brood exclusively ? or to both illicit and marriage children ? Suppose, such female should have illegitimate children by one man, and afterwards marry another, and have lawful children ;• and afterwards break away from her husband, to 150 1840] OF THE UNITED STATES. 183 Brewer v. Blougher. whom she was affianced, which often happens, and have children in adultery, and finally, she dies intestate, leaving real and personal estate : how will such estate descend ? To the first illicit brood, the second set in marriage, ■or the third in adultery ? or will it descend equally among all? Suppose, further, that such female should have illegitimate children by a negro, which we know often happens in the lower ranks of life, after she has had white illegitimate children, and dies intestate, seised of real and personal estate, it is to descend equally among the blacks and whites? We have no definitions, limitation or guards in all such matters, except the proviso, so important to the purity and correctness of social intercourse in the state. And even in regard to the right of inheritance of illegitimate children from their mother, for the want of proper guards, the act in question is clearly unreasonable. And if the maxim of Lord Coke, that “ an act of parliament against reason is void,” is to be received in this court, the law ought to be rejected, and all claims to titles to property under this law ought to be arrested by the judgment of this court. But the act of 1825, ch. 156, is still more unreasonable, and objections increase «nd thicken upon us, as our examination is in progress. From the careless manner of its enactment, the legislature has rendered itself liable to be misunderstood, and its true intention frustrated. It has, indeed, if the letter be adhered to, made a general act, to direct descents for the benefit of all illegitimate children of any female who is the propositus in the law, and who is to be the stirps whence these relations are to branch out. from fathers and mothers without marriage ; and this too, embracing bastards issuing from adultery, and from incest of father and daughter, and. even son and mother, if the depravity of the human heart shall ever let loose such unbridled passions ; and also embracing in its *confusion, bastards, lineal and collateral, running into the same incest and adul- L tery, and bastards of color mingled with whites, and all too in like manner as if born in lawful wedlock. But in such a state of illegitimacy, how could persons and families proceeding from such female, as the root, establish their right to inherit any estate from each other ? According to the position assumed (i. e. if the letter be strictly adhered to), here is a general act to direct illegitimate descents ; and all the issue, both lineal and collateral, in the ascending and descending lines, to endless generations, would be capable of inheriting from the “ female,” who is named as the propositus in the law, Does it require any argument to demonstrate, that such a law could not be enforced, because it would be impossible to trace such issue with anything like certainty ? Yet if the law be received by this court, in the full sweep of its letter, it must stand in the statute book like all other acts to direct descents, for the benefit of all persons claiming under it. But how could be traced the ancestors of a bastard, up to a grandfather or great grandfather, grand-uncle or great grand-uncle, in the ascending line ; or the reverse in the descending line, all too, in bastardy ? When lineage is traced within the pale of wedlock, there is evidence and certainty to rest upon ; but without that sacred union, all is incertitude and confusion. To ascertain the pedigree of an individual whose ancestors were all bastards, would oe impossible. It is, therefore, impossible to execute the law, according to the letter ; and it cannot be so received by judicature. Suppose, Maryland, or any state in this Union, should pass a general 151 184 SUPREME COURT. [Jan’y . Brewer v. Blougher. law to direct descents of real and personal estate, out of wedlock. Could it lead to anything else but absolute confusion ? But if the letter of the act of 1825, ch. 56, be adhered to, it is necessarily just such a law as that supposed ; and necessarily leads to the same absurdities and unreasonable results, and is equally impossible to be executed. Can it, then, be received in one part, if the whole together is unreasonable and impossible to be executed ? 4. The proviso of the law is repugnant to, and contradicts its purview or first providing clause, and renders the whole null and void. The proviso is as follows : “ Provided, that nothing herein contained shall be construed to alter or change the law respecting illegitimate persons, whose parents may marry, after the birth of such persons, and who are by them acknowledged, agreeably to the seventh section of the act of assembly, passed at December session 1820, chapter 191.” There is no principle better settled, than that if the proviso is directly repugnant to the purview, the proviso shall stand and operate as a repeal of the purview. 19 Vin. Abr. 522, § 105. Is this proviso, then, directly repugnant to the purview ? The purview changes the law of 1820, ch. 191, § 7, in this : it allows the illegitimate child or children of any female to inherit both real and personal estate from their mother, or from each other, without marriage, or acknowledgment of * _ the father. Whereas, the act of *1820, ch. 191, § 7, will not allow any I85J illegitimate child or children to be capable in law to inherit and transmit inheritance, without marriage and acknowledgment of the father. It is evident, therefore, that the act of 1825 intended to change, and did actually change, that of 1820, which the proviso declares shall not be altered or changed. The proviso declares that the law of 1820 shall stand firm, without change or alteration ; and the act of 1825, quoad hoc, makes a very material change and alteration. Without such change and alteration, the law of 1825 would be wholly useless. The proviso, therefore, is clearly repugnant to the purview, and overthrows the law altogether. The counsel for the defendant has filed his brief, in which he does not deny that the proviso is repugnant ; but simply states that the proviso has nothing to do with this question. He was invited by us to discuss the proviso, but has declined it. By the fixed rules of law, we must give the act of 1825 a strict construction, as it tends to change the common law. The common law, we learned in our early studies, is the perfection of reason, and is always jealous of its own importance ; and requires every statute which invades its authority to be carefully watched and strictly construed. How, then, by strict construction, can this proviso be otherwise than repugnant? Will the court be disposed to keep strictly to the letter in the purview, and depart from it in the proviso ? The proviso strangled the act of 1825, and it fell stillborn from the hands of the law-makers, before it saw the light, to annoy and ‘ disturb the good order and purity o social intercourse. For, with the entire latitudinous results to which it leads, if unrestrained by judicial powers, it will be “ a horrid monster, huge, shapeless and deprived of sight.” Conceived in ignorance, and 11 broug forth by presumption or rather, perhaps, from carelessness more than ignorance. Will the court depart from the rule, and give the act of a liberal construction, instead of holding it stricti juris ? Will it app y 8 proviso to something beyond its letter, to bring it into harmony wit 152 1840] OF THE UNITED STATES. 185 Brewer v. Blougher. purview, and prevent it from being repugnant, and so save the law from its own nugatory terms ? One of the maxims of Lord Coke, that in regard to a repugnant clause, was received, we presume, and acted on by this court, in the case of the United States n. Cantrill, 4 Cranch 167. That case was certified from the circuit court of the district of Georgia, and arose under the act of congress of the 27th June 1798, made to punish frauds committed on the first Bank of the United States. Cantrill was indicted for falsely and feloneously uttering and publishing, as a true bank-bill of the United States, with intent to defraud one William Gibson, a certain false, forged and counterfeit paper, partly written .and partly printed, purporting to be a bank bill of the United States, for ten dollars, signed by Thomas Willing, * president, and G. Simpson, cashier Upon a verdict of guilty, a motion was made in arrest of judgment, and reasons filed, one of which was, “Because *-the act of congress, passed 27th June 1798, entitled, ‘ an act to punish frauds committed on the Bank of the United States,’ under which the prisoner is indicted, or so much thereof as relates to the charge set forth in the indictment, is inconsistent, repugnant, and therefore void.” The act of congress, so far as it describes the offence charged against Cantrill, is in the follow, ing words : “ If any person shall utter or publish as true, any false, forged or counterfeited bill or note, issued by order of the president, directors and company of the Bank of the United States, and signed by the president, and countersigned by the cashier thereof, with intention to defraud said corporation,”, etc. The question being submitted without argument, Chief Justice Marshall delivered the opinion of the court, that the judgment ought to be arrested, for the reasons assigned in the record. The words in italics were held to be inconsistent and repugnant, inasmuch as they made it a crime to publish as true, any false, forged or counterfeit bill or note,, issued by order of the president, directors and company of the Bank of the United States, signed by the president, and countersigned by the cashier. A note issued by the order of the board, and signed by the president, and countersigned by the cashier, being genuine, could not be false and forged, and could not be falsely uttered and published, and put into circulation by Cantrill or any one else, and the law was, therefore, inconsistent and repugnant. Congress was afterwards obliged to amend the law in this respect. 5. That it was not the intention of the legislature, by the act of 1825, to embrace any bastards, except such as could be legitimated by marriage. We have examined with great care, and reflected much upon this branch of the cause. The law of 1825, and all other laws of Maryland, to which it refers, or to which it has any affinity, in regard to the commerce of the sexes, lawful or illicit, have been carefully examined, weighed and considered ; and all the authorities, American and British, and of other civilized states, in the least calculated to illustrate and enlighten on this point, have been collected for the examination of the court. The result has always been the clearest conviction, that the legislature of Maryland did not, at the time of passing the act of 1825, think of or intend any illegitimate child or c udren, except such as could be legitimated by marriage. If any other interpretation shall be made and prevail, however well intended, it will, we old, be a violation of the legislative will. In the argument upon this point, we shall take the following positions 153 186 SUPREME COURT [Jan’y Brewer v. Blougher. as true and incontrovertible. 1. That all civilized states have looked upon incest with the greatest abhorrence. 2. That no civilized state has at any time permitted illegitimate children, proceeding from incest, to inherit. 3. *187] That it will be a severe interpretation of *the act of 1825, to settle down upon Maryland a civil code, by implication, drawn out of a law having on its face evident signs of being made in a careless hour; when all other civilized states have uniformly rejected such a civil code, and when it cannot be doubted, that Maryland herself would instantly reject such a code, if openly proposed for hei’ deliberation. Incestuous marriages have always been regarded with abhorrence by the soundest writers, and the most polished states of antiquity ; and an incestuous connection between an uncle and niece has been adjudged by a great master of public law, a nuisance. 2 Kent 81 ; Burgess v. Burgess, 1 Hagg. Cons. 368. And such a connection was held in equal abomination by Justinian’s Code. Code 5, 8, 2. No civilized state has at. any time allowed by law, illegitimate children, proceeding from incest or adultery, to inherit. 5 Wheat. 262, note A ; Civil Code of Louisiana, tit. Illegitimate Children ; Napoleon Code, Illegitimate Children. To sustain the argument upon the fifth and last point, to prove that it was not the intention of the legislature of Maryland to embrace any bastards except such who could be legitimated by marriage, we proceed to lay before the court all acts of the general assembly of that state, which may be connected with the act of 1825, by reference or affinity, in regard to the lawful or illicit commerce of the sexes. Several of them, if not all, must be taken in pari materia; and before we are drawn into the vortex of the letter of the act of 1825, without restriction or limitation, for the better understanding of the intention of the legislature, we will collect all her legislation on this subject, to demonstrate and establish the intention and interpretation for which the plaintiff contends. The act of 1777, ch. 12, entitled, “an act concerning marriages,” to prevent incestuous marriages, settles the degrees of kindred and affinity, and makes the marriage of John Sloan and his daughter void ; and by the second section of the act, a fine of five hundred pounds is imposed upon persons who violate the law. Here, we will barely remark, that it ought not to be presumed, that the general assembly would authorize the issue of an incestuous marriage to inherit, when that issue proceeded from a connection in palpable violation of a standing law of the state. The next law which has any affinity to that before the court, is the act to direct descents, 1786, ch. 45 ; and it is produced to show, that our legislature has, in more than one instance, from negligence, authorized by the letter of the law, a construction which the Maryland courts would not give; always restraining the letter by judicial power to prevent mischief. The second section of the act of 1786, ch. 45, provides how land shall descend, “ first to the child or children and their descendants, if any.” Now, is not “the child or children” here, as comprehensive as “illegitimate child or children,” in the act of 1825 ? And would not the words “ child or children, * in the act to direct descents, *if a court would be governed by the mere letter, embrace any child or children, in or out of wedlock, o incest, adultery or of amalgamation ; and yet his honor the chief justice knows, that our constant exposition of the act to direct descents is, that it 154 1840] OF THE UNITED STATES. 188 Brewer v. Blougher. shall be confined to a child or children born in wedlock, or legitimated by marriage, according to the degrees of kindred and affinity settled by the marriage act of 1777. Again, by the seventh section of the act of 1786, to direct descents, it is enacted, “ that if any man shall have one or more children by any woman whom he shall afterwards marrry, such child or children, if acknowledged by the man, shall, in virtue of such marriage and acknowledgment, be hereby legitimated, and capable in law to inherit and transmit inheritance, as if born in lawful wedlock.” Now, by the letter of this section, the marriage act is changed ; and the man is at large to marry his daughter or his mother, his neighbor’s wife, or his negro slave. And yet his honor the chief justice knows, that our uniform exposition has been, that the letter shall be confined to a woman according to the degrees fixed by the marriage act of 1777. The act of 1820, ch. 191 (which is, in truth, by the reference in the proviso of the act of 1825, made part of the latter act), in its seventh section, is precisely the same as the seventh section of the act of 1786, and would, by the letter of that section, change the marriage act of 1777, and allow a man in the wide field of his lust to marry his daughter or his mother, his neighbor’s wife, or his negro slave. And yet his honor the chief justice knows, that our uniform exposition has been, that the letter shall be restrained according to the degrees fixed by the marriage act of 1777. Can any one doubt, that the legislature, when it passed the law 1820, ch. 191, and copied in its seventh section the entire seventh section of the act of 1786, ch. 45, had deliberately examined and considered the seventh section of the act of 1786, ch. 45, and intended nothing more than a re-enactment of the same matter, which it was thought fit and proper to be a standing law of the state ? But it may be asked, what proof have we of this ? We answer, that the legislature of 1820 inserted in the seventh section of the act of that year, verbatim, et literatim, the whole seventh section of the act of 1786. Before it was thus copied, it must have been read, examined and considered, and the contents fully known and understood, and must, therefore, have been fully in the legislative mind. Are we not all clearly satisfied of this ? . Now, if the court shall conclude? that the act of 1825 ought to be received by judicature for grave interpretation, let us apply the same rule and mode of reasoning, by analogy, to the acts of 1820 and 1825 ; and it will be clearly demonstrated, that the act of 1825 did not intend to embrace any bastards except such who could be legitimated by marriage. It appears to us clear, that, to understand fully and without any misapprehension the act of 1825, the act and the law of 1820 *must be taken in pari materia. For this part of the argument, and to enable us to apply it with greater t force, let us again refer to the law of 1825. It is entitled, “ an act relating to illegitimate children,” and is as follows : “ Be it enacted by the general assembly of Maryland, that from and after the passage of this act, the illegitimate child or children of any female, and the issue of any such illegitimate child or children, be and they are hereby declared to be able and capable in law to take and inherit both real and personal estate from their • mother, or from each other, or from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock : provided, that nothing herein contained shall be construed to alter or change the law re-155 189 SUPREME COURT [Jan’y Brewer v. Blougher. specting illegitimate persons, whose parents marry after the birth of such persons, and who are by them acknowledged, agreeably to the seventh section of the act of assembly, passed at December session 1820, chapter 191.” Notwithstanding it is evident, that this act was passed in a careless hour, without proper guards and limitations in the purview ; the proviso, although inconsistent and repugnant, will afford us a key to unlock and throw open to our minds the true meaning and intention of the legislature. To do full justice to the legislature, the act of 1825 ought to be received as an appendix to the act of 1820. The proviso proves to us beyond all doubt several important matters, to enable us to discern the real intention of the legislature. When that is once clearly discerned, the judgment of this court must, we hold, conform to it, as the only rule of construction. In the first place, the proviso informs us, by the very special and particular reference to the year, chapter and section of the act of 1820, that the committee, or persons having the matter in charge, had carefully and deliberately examined the act of 1820, and reported their proceedings to the legislative body, before tho passage of the law. The question here is, what evil or grievance did the legislature discover as still existing under the act of 1820, ch. 191, § 7, which ought to be provided for and redressed ? The evil and grievance discerned was evidently this, and nothing more : that by the act of 1820, ch. 191, § 7, no illegitimate child or children could be legitimated, so as to be capable in law to inherit or transmit inheritance, without marriage and acknowledgment of the father. If any woman, being seduced by the artful addresses of a man, shall have an illegitimate child or children, and die intestate, leaving real and personal estate, it is but just and honest that such estate shall descend to her own natural children, in preference to a descent to her collateral relations. When reading, deliberating on, and examining the act of 1820, ch. 191, § 7, did the legislature find any other bastards than such as could be legitimated by marriage ? Is there the least shadow of reason to suppose, that any others entered at all into the mind of any member of the legislature ? Nay, does not the proviso itself take us *1901 back to the act of 1820, ch. 191, § 7, *and point out exactly the ille- • J gitimate child and children the legislature had in view ? If we had been present and witnessed all the deliberations on the subject ; if we had now every member of the general assembly before us as witnesses, and they should all inform us that nothing more was intended than such children as were found named in the act of 1820, ch. 191, § 7, could it be more conclusive than the information given by the proviso ? The proviso is certainly part of the law of 1825, and must be brought to our aid in the interpretation of that law. For nothing is better settled than this, that “one part of an act of parliament may expound another.” 19 Vin. Abr. 527, § 149, and the references there. This is often done, even where there is no express saving in form, when it evidently leads to the true meaning of the legislature. Woe be to any court that shall consider itself in absolute control by the mere letter of this legislative enactment, evidently leading to mischie . and when the law presents a clear presumption that the legislature intende something othei’ than the letter. Can we believe, that children of incest, adultery and amalgamation were ever intended by the law ? Take out, we 156 1840] OF THE UNITED STATES. 190 Brewer v. Blougher. pray, this hybridous and impure issue, or you will do great injustice to the intention to the legislature. To further illustrate and prove that the legislature, by the act of 1825, intended to embrace only such children as could be legitimated by marriage, according to the act of 1820, ch. 191, § 7, we will now refer to several other Maryland laws, which by their affinity properly belong to the argument. And as we progress, we shall insist, that the legislature, when merely remedying a grievance still existing in the state, could not, by this enactment, sweeping as are its terms, have intended to abandon the fixed standard of purity as long erected by the sages of Maryland. And what is that standard of purity, as gathered from all her laws upon the subject ? Let us pass them in review, as proposed, in order to discover it. By the act of 1777, ch. 12, a penalty of five hundred pounds is incurred by persons -who shall consummate an incestuous marriage. By the act of 1715, ch. 27. § 3, every case of adultery is punished by fine. The commerce of the two races of whites and blacks has, by the laws of the state, been strictly prohibited. A free negro or mulatto, intermarrying with a white woman, -becomes a slave for life. A white woman having issue by any negro or mulatto, is made a servant for seven years. White men having issue by any negress or mulatto, become servants for seven years. Free negro or -mulatto women, having bastard issue by white men, are subject to the same penalty. Acts of 1715, ch. 44 ; 1717, ch. 13 ; 1728, ch. 4. Now, can it be supposed, that the legislature, being cognisant of all ’ these laws, and knowing the universal sentiment of the state in reference to their purity, could have intended at once to abandon them all, and provide for all the illegitimate and illicit issue that can by any *possibility rJi. be reached by the letter of the act of 1825 ? Bear in mind, too, that *-there never had been in the history of Maryland any illegitimate children under the fostering hand of the government, except such as could be legitimated by marriage. Can it be supposed, then, that the legislature intended thus at once to abandon all her former policy and purity ; and make provision for all the incestuous, illicit and hybridous issues within the scope of the letter of the act of 1825 ? Surely, surely not! Throughout the argument, we have held the governing rule to be, that the judges ought to interpret the law, and not to make or give law. This rule makes it the more proper that the greatest care and diligence should be used : first, in bringing to our aid the grand and leading objects of the -Maryland legislature, in passing the law of 1825 ; and then in considering every part of that law with its reference and appendage. When putting a construction upon any statute whatever, the judges will endeavor to save the legislature from absurdity and folly ; as it cannot be presumed, that men of sound minds would willingly and deliberately stultify themselves. But above all things, and most especially, will the judges endeavor to ' arrive at the intention of the legislature ; and when that is once ascertained, -readily gratify it, no matter how loose or careless may be the language in which that intention is clothed. We have endeavored to show, that any other construction than that for which we contend, would involve the legis- -lature in folly ; and further, we think we have disclosed the true, clear inten-tion of the legislature in passing the act of 1825 ; both from the universal sentiment of the state, as well as all prior Maryland laws on the subject, and 157 191 SUPREME COURT ¿Jan’y Brewer v. Blougher. particularly that important one which the act in question expressly refers to by year, chapter and section. As a leading case upon the construction of statutes, which directs the judges to restrain the letter in order to get at the intention, we cite Dr. Bonham's Case, 8 Co. 118 ; 19 Vin. Abr. 514, § 34 ; 518, § 81, and the note ; 519, note; 522, § 109, note ; 523, § 116 ; 527, § 149. Judges have power over statutes to mould them to the truest and best use. 19 Vin. Abr 528, § 154, 158-9. When laws or statutes are made, yet there are some things which are exempted and foreprized out of the provision thereof, though not expressly mentioned. 19 Vin. Abr. 527, § 147 ; 524, § 119 ; 523, § 116 ; 514, § 27-31. Statutes which restrain the common law to be taken stricti juris. Ibid. 524, § 125. Our researches, for the better understanding of the matters involved in this discussion, have informed us, that all civilized states that have deliberately formed a civil code, uniformly have prohibited the issue from incest oi' adultery from the right of inheritance. Shall Maryland, then, by mere implication, and a forced construction of a single act of her legislature, *1921 ev^ent^y made for another *purpose, have a civil code fixed upon J her, that her people have ever abhorred ; and which, if proposed openly, would be instantly rejected by her legislature ? Such an important code as that, dissenting from all civilized usage, ought never to be fastened upon any modern state. We have endeavored to maintain, that it is not the civil code of Maryland, and that it never will be, with the consent of her people ; and now, as one of her citizens, we enter our protest against such a presumption. A printed brief has been filed in court, by the counsel for the defendant. But it mistakes our position. It supposes, that the plaintiff desires the court to punish the incestuous issue of John and Mary Sloan ; and contends, that the plaintiff is endeavoring to make such issue something more than illegitimate. This is not that for which the plaintiff contends. The purity of the law, which always extends less favor to illegitimate children than to legitimate, was not intended to punish the innocent, but to prevent the illicit commerce of the sexes. The illegitimate children from the incest in this cause, are, it is true, illegitimate. But they are not such as the legislature intended to embrace. We think we have demonstrated this clearly and successfully to the court. If they were not intended to be embraced by the legislature, this court cannot embrace them. If so, this court would be making a law, not interpreting that before it. Price, for the defendants in error.—John Sloan, having married his own daughter, and having had several children by her, conveyed to one of those children a tract of land, and upon the death of such grantee, the rest of the children, claiming the property by descent, conveyed the same to the defendants in error. The question is, and it is the only question in the case, whether a good title did not pass by descent from the grantee of John Sloan to his brothers and sisters? The act of 1825, ch. 156 (of Maryland), provides, “ that the illegitimate child or children of any female, and the issue of any such illegitimate child or children, be and they are hereby declared to be able and capable, in law, to take and inherit both real and personal estate from their mother, or from nach other, or from the descendants of each other, as the case may be, in like manner as if born in lawful 158 1840] OF THE UNITED STATES. 192 Brewer v. Blougher. wedlock.” Then follows a proviso, which has no application to the present question. If this were the case of legitimate children, their right by descent would not, as it could not, be questioned. But the act provides that illegitimate children shall inherit “in the same manner as if born in lawful wedlock.” There is no distinction, therefore, in this connection, between legitimate and illegitimate children ; they all take alike. It is admitted, that these children are illegitimate, and in that respect are within the letter of the law ; but it is insisted, that they *are something more than illegiti-mate, being the fruits of an incestuous commerce between the father and daughter, and for that reason not within the intention of the lawmakers. It is supposed, that the court will feel itself called upon to show its disapprobation of the incest of the parents, by withholding from their unoffending offspring, property, to which, in other respects, they have a good title. The law, however, declares that the sins of the parents shall not be visited upon the children. And is this forbidden by any canon of the moral code? On the contrary, is it not wise and just, to enable the children to rise above the degrading accidents of their birth, by placing within their reach every means of improvement, and every incitement to a virtuous and exemplary life ? But if they are to be marked and degraded as victims, why not carry it out fully and effectually ? Why permit them to vote at the elections ? or to hold any office? or to marry into honest families? or to hold property by purchase? It is conceived to be necessary to punish incest. And how is it proposed that this shall he done ? It is, by suffering the guilty to escape, and by seizing the innocent, and making them bear the penalty. The parents were permitted to hold and enjoy this property all their lives ; and, after their death, the law is to step in and take it away from the children, as an example to the parents. But why speak of punishing incest ? It is no crime. These parents were permitted to live in open incest, because there was no law to punish them. We feel it to be immoral and highly revolting ; but, in reference to the criminal law, it is an act perfectly innocent. It is a little surprising, therefore, that the court should be called upon to visit, with condign punishment, an act which the law does not regard as calling for penalty or punishment of any kind. Mayer, for the plaintiff in error.—The decision here depends on the construction of the law of Maryland (1825, ch. 156) which enacts, “That the illegitimate child or children of any female, and the issue of such child or children, shall be able and capable in law to take and inherit both real and personal estate from their mother, or from each other, or from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock : provided, that nothing in this act contained shall be construed to alter or change the law respecting illegitimate persons whose parents marry, after the birth of such persons, and who are by them acknowledged, agreeably to the seventh section of the act of assembly, passed at December session, 1820, chapter 191. The defendants claim under the title of one of an incestuous issue ; and upon the ground, that one of that issue may inherit from another, under 159 193 SUPREME COURT [Jan’y Brewer v. Blougher. the law just quoted. The act of 1820, ch. 191, § 7, referred to in the proviso of that just recited, declares, that “if any man shall have a child or children *1941 by any woraan whom he shall afterwards *marry, such child or child- J ren, if acknowledged by the man, shall, in virtue of such marriage, be hereby legitimated, and capable in law to inherit and transmit inheritance, as if born in wedlock.” A marriage was had between the parents of the incestuous offspring ; and it is contended by the plaintiff, that so far as they were born before the marriage, they must seek for legitimation under the act of 1820, ch. 191, § 7 ; and if born after the marriage, they must rely on the marriage as their sanction, if they are to have any legitimate standing. This latter provision of the Maryland law, and the cited act of 1825, ch. 156, must be taken together in construction ; and we maintain, that the whole enactment meant to provide for those whom it was possible for the marriage ceremony to have made legitimate, and that when the ceremony has in fact been performed, and yet can in law have no effect, the offspring are not within the contemplation of the act of 1825, ch. 156 ; the just deduction from the entire legislation being, that those were regarded who needed only the lawful union of their parents to make them legitimate, and that legitimacy in this legislation is thus to be contradistinguished to illegitimacy. As a part of the series of enactment, there should also be considered the Maryland act of 1777, ch. 12, § 1, which contains penal prohibitions of marriages within certain degrees. If this interpretation be sound, the offspring in question could not be within the benefit of the act of 1825, ch. 156, the marriage to which they must appeal being unavailing, and no lawful union (the possibility contemplated by the act) being practicable between their parents. For if we are to characterize the issue, we must look to the putative and admitted parents, and to the particular case ; and seeing the relations of the parties themselves, we must find that they could not come within the condition of “ lawful wedlock,” in the view of the act. They never could have been born in “ lawful wedlock.” Whatever may be our sympathies in .such instances, we are constrained to. look at pretensions through the stern medium of the common-law policy, disqualifying as it is against the issue of illicit alliances. It makes no provision itself for such offspring by its policy, whatever may be the duty of the parents, who are, therefore, left free to make retribution to them for the dishonor of their birth. All statutes like that under consideration, interpreted, as they must be, in reference to the strict general policy which pervades our common law, are to be limited to the instances clearly within them, and are to be construed in obedience to the common-law principles, so far as those are not unequivocally superseded by the statute enactment. This view enforces the interpretation we would assign to the act of 1825, ch. 156. In the particular case, too, before the court, not only does the interpretation contended for subserve the general policy of the common law, in its repugnance to illicit connections, but it is demanded by the special odium in which it denounces such alliances as that which is the revolting feature of this case ; and against which Maryland legislation has so * , emphatically *and studiously guarded the social morals by the act of J 1777, ch. 12. All such unions and their results seem to be peculiarly offensive to our common law ; and particularly when of the infamous order 160 1840] OF THE UNITED STATES. 195 Brewer v. Blougher. of that which this case presents. The offspring of incest are not admissible within, the general denomination of mere illegitimate issue, and should be specially designated to entitle them to enjoy the advantages of any particular legislation. 2 Kent’s Com. 72-2. However general, then, the terms of a law may be, in favor of illegitimate issue, it is reasonable to require, in conformity with the feeling the law entertains towards incest, that the common law, regarding marriage as the only test of legitimation, should exclude incestuous offspring from ordinary illegitimacy, and require them to be specifically designated. There are many cases where general terms, which might embrace certain objects, are limited in import by reference to paramount principles or institutes of the common law, which are allowed to be invaded only by express terms. The aversion of the common law may, in its bearing on the exposition of a statute, as to illegitimates, be regarded as akin to those jura naturae which are termed even leges legum. Hob. 87. Indeed,, the common law (2 Kent’s Com. 72 ; Vaugh. 206 ; 2 Vent. 9) pronounces incestuous marriages to be against the law of nature. There are a number of instances, as marked as that now contended for by us, of a restricted construction of general words in a statute, in due respect to a policy, or to certain deeply seated principles of the common law. 6 Bae. Abr. Statute, 381-7 ; 1 Brock. 162. But however we may admit that the offspring of incest may, under this act of 1825, be recognised, in point of parentage, as to the mother, and may inherit her estate from her or from one another, is collateral inheritance, as here claimed, allowed under it? The act declares that the illegitimate children of any female may “ inherit ” real estate from her and from each other. The term “ inherit ” has a technical meaning, and has regard to the principles which at common law regulate the derivation of estates by descent. The descent from brother to brother is immediate, but still parents must be found who shall be the actual or assumed fountain of inheritable blood, and create the kindred of brothers. 2 Bl. Com. 226-8. 1 his act of 1825 contravenes the common law in its maxim that an illegitimate child is nulliusfilius only so far as its express provisions go ; and the utmost that can be said as to the parentage with which it endows the offspring, is, that it gives them a mother. It gives them no father, and does not constitute between the children the relation of brothers and sisters. In Stevenson y. Sullivant, 2 Wheat. 207, the terms of the Virginia act came into question, which allows illegitimate children to inherit from the mother, and “ transmit inheritance ” on part of the mother. The court determined that descent was not permitted by the act from brother to brother, not only because the words “ on part of the mother ” confined the taking by inheritance through the mother, in the ascending or descending line ; *but rat, nlK 7 O I *196 also, because, although the bastards, as the court says, “ are, in these L respects, quasi legitimate, they are, nevertheless, in all others, bastards, and as such they have and can have neither father, brothers nor sisters.” The court also says, that in the construction of the act, “ it is never to be lost sight of, that the appellants are to be considered as bastards, liable to all the disabilities to which the common law subjects them, as such, except those from which the section itself excepts them ; thus indicating that the strict maxims of the common law are to be adhered to, and the privileges of bastards narrowed in reference to them in the construction of these en- 14 Pet.—11 161 196 SUPREME COURT ‘ [Jan’y Brewer v. Blougher. franchising acts.” Now, the terms in the Virginia act, which allow the children to transmit inheritance, would, in case of legitimate issue, cover the-descent from brother to brother ; and yet, even apart from the restrictive-words, “on part of thq mother,” the court regards this transmitting power to the children as not instituting collateral descent, or in other words, as not, ex vi terminorum, creating the constructive relation of brothers and sisters, without express words in the act giving a perfect parentage constructively to the children. The Virginia act, as explicitly as the Maryland, conferred a mother on the children ; and in giving the children the capacity to “ transmit inheritance,” the Virginia act yields all that the Maryland act grants, in declaring that the children may inherit from each other ; for certainly a collateral descent is a transmission of inheritance. So the case of Stevenson v. SMivant treats it, when showing that, even not regarding the terms “ on part of the mother,” there could be no descent in the case from brother to brother, although the children were endued with the capacity of transmitting inheritance. According, then, to that decision of this court, there can be no inheritance here between brother and brother, under the Maryland act of 1825 ; and for the reason there stated, that, although a mother is recognised by the Virginia act, as in the Maryland, yet the children had, in contemplation of law, no brothers nor sisters. According to the decision, even without the words “ on part of the mother,” being connected with the transmitting of inheritance by the children, their capacity to inherit would be limited to the estate of the mother. In every case of a descent from brother to brother, although it is immediate, there must be fathers to whom the kindred may be traced, although they be not named in deriving the estate, which is the subject of the collateral descent. 2 Bl. Com. 226. The paternity is the essential clue to learn the kindred, whether it be of the whole or half blood : and the primary element in this ascertainment is wanting, where no father to either party is to be found, and when the law itself declares that there is none. The relation of whole and of half-blood depends, in the derivation of descent, on the question of community of father and of mother, unless when the estate comes from the mother. Such is the necessary rule from the theory of feudum novum ut antiquum. Thus it is not sufficient here to say, that by the law of Maryland the * half-blood may inherit among brothers and sisters, for we have *seen, J that an ascertained paternity is essential to determine the relation of whole or half-blood among brothers and sisters. The law of Maryland gives the right to the half-blood only where it is ascertained that there is no brother or sister of the whole blood ; a provision which looks to the possible existence, at least, of fathers. Where the law itself, in the confessed circumstances, leaves an utter blank for the father, and declares it a légal impossibility that there should be one, we may at least say, that the statute of descent, which pre-supposes a necessary ascertainment of a father, does not comprehend a case where the law declares itself that there can be none, and can be no such ascertainment. The case, then, of such collateral succession between illegitimates must be regarded as a casus omissus from our Maryland law of descents (see the Act of Descents, 1820, ch. 191), and the common law must regulate as in another case of casus omissus, as the same was done in Barnitz v. Casey, 7 Cranch 456. 162 184t)] OF THE UNITED STATES. m Brewer v. Blougher. There could, then, be no inheritance of the half-blood between these illegitimates ; even assuming that the tests are erroneous, which an effort has been made to show are those exclusively applicable. The result of these views, which conform to the well-established principles of the common law, unimpaired by the act under consideration, is, that the act allows the illegitimate issue to inherit from their mother, and to inherit from each other estate derived from the mother, but not estates of purchase, as is the character of the estate in question in this cause. Our exposition gives effect to every provision of the act, according an inheritance collateral as well as lineal; but modifying the scope of the act by rules of the common law, which must govern and limit the innovation introduced : unless those rules be, by the terms of the new legislation, expressly, or by necessary implication, superseded ; an implication so clear and irresistible, that no construction of the law is possible, consistently with the operation of those rules. Taney, Ch. J., delivered the opinion of the court.—This case depends upon the construction of the act of assembly of Maryland, passed at December session 1825, ch. 156, entitled, “an act relating to illegimate children.” By this act of assembly, “ the illegitimate child or children of any female, and the issue of any such child or children,” are declared to be capable in law “to take and inherit both real and personal estate from their mother, or from each other, or from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock.” It appears from the record, that a man by the name of John Sloan had several children, who were the issue of an incestuous connection of a shocking character. He conveyed a, tract of land, called “ Grassy Cabin,” situated in Allegany county, in the state of Maryland, to John Joseph Sloan, one of these children. John Joseph Sloan, the grantee, died about the year 1832, intestate, and without issue ; and seised in fee-simple of this land. Two brothers and one sister, the *issue of the same incestuous intercourse, survived him ; and they conveyed the land to Jacob Blougher and Daniel l Blougher, the defendants in error. The plaintiff in error, after the death of John Joseph Sloan, took out an escheat warrant for the above-mentioned tract of land, upon the ground, that there could be no lawful heirs of the said Sloan ; and having obtained a patent for the said land, he brought an ejectment for it, in the circuit court of the United States for the district of Maryland ; and the judgment of that court being against him, the case has been brought here by a writ of error. There is no controversy about the facts in the case. It was tried in the circuit court upon a case stated ; and has been elaborately argued here, and many authorities cited to show that the court, in construing a statute, may lestnct the literal meaning of the words used, in order to effectuate the intention of the legislature. The plaintiff in error contends, that in passing e act of assembly above mentioned, the legislature never contemplated a case like the present; and never intended to give the right of inheritance to e children of an intercourse so deeply criminal. It is, undoubtedly, the n y of the court to ascertain the meaning of the legislature, from the words yse in the statute, and the subject-matter to which it relates ; and to restrain 1 s operation within narrower limits than its words import, if the court are 163 198 SUPREME COURT [Jan’y Brewer v. Blougher. satisfied that the literal meaning of its language would extend to cases which the legislature never designed to embrace in it. In the case before us, the words are general, and include all persons who come within the description of illegitimate children. According to the principles of the common law, an illegitimate child is jilius nulliwt, and can have no father known to the law. And when the legislature speak, in general terms, of children of that description, without making any exceptions, we are bound to suppose they design to include the whole class. And, as illegitimate children, in a question as to the inheritance or distribution of property, can have no father whom the law will acknowledge as such ; how, can we, in a controversy like this, inquire who was the father of these children, in order to determine upon their right to the property ? The expediency and moral tendency of this new law of inheritance, is a question for the legislature of Maryland, and not for this court. It seems to have been supposed by the legislature, that as there could be no doubt of the relation which the mother bears towards her illegitimate children, the reasons of policy which must always preclude such children from claiming the inheritance of any one, upon the ground, that he was their father, do not apply to the property of the mother, or the property of each other. To this extent, therefore, the right to inherit is given by this act of assembly. And it would appear to have been given upon the principle, that it is unjust to punish the offspring for the crime of the parents. The right of the children, therefore, is not made to depend upon the degree of guilt of which *1991 ^ey were the offspring. All illegitimate *children are the fruits of J crime ; differing indeed, greatly, in its degree of enormity. And the legislature, if it had seen proper to do so, might, undoubtedly, have made the right to the inheritance to depend upon the character of the offence committed by the parents. But they have used no language showing any such design. On the contrary, they appear to have looked at the unoffending character of the children, rather than at the criminal conduct of the parents, of whom they were the offspring. It has been said, that the expressions in the enacting clause of this act of assembly, which declares that the illegitimate children spoken of shall be capable of inheriting from their mother and from each other, “ in like manner as if born in lawful wedlock,” imply, that those children only were intended to be provided for, whose parents were capable of contracting a lawful marriage with each other. The same argument has also been urged, upon the proviso, which declares, that nothing in the law shall be' construed “ to change the law respecting illegitimate persons whose parents marry after the birth of such persons, and who are by them acknowledged, agreeably to the seventh section of the act of assembly, passed at December session 1820, ch. 191 ” We do not perceive the force of this argument. It is admitted, that the act of assembly, now in question, must be taken in connection with the previous laws of Maryland regulating the descent of real estate, and the dis tribution of personal property ; for this law forms a part of the entire system of legislation on these subjects. But the expressions referred to in t e enacting clause, so far from implying that thé parents may marry, pre supposes that they never will marry ; and provides for the childien ont a account. The expressions are evidently used merely to denote the s ares 164 1840] OF THE UNITED STATES. 199 Brewer v. Blougher. and proportions in which such children are to take ; and the reference for the rule is made to children born in wedlock, in order to save the necessity of introducing into this law a table of descents as to real property, and of distribution as to personal. In relation to the proviso, it is proper to remark, that the rights of primogeniture were abolished in Maryland, by the act of 1786, ch. 45. There was a provision in this law declaring that illegitimate children, whose parents afterwards married, and acknowledged them, should be thereby legitimated, and made capable of taking and inheriting property as if born in lawful wedlock. The act of 1820 embodied the original act as to direct descents, with its various supplements, into one law ; and provided for some laws of descents which had before been omitted. This act of assembly, of course, contained the clause in favor of illegitimate children whose psfrents should afterwards marry, which had been introduced into the act of 1786, and which had always been the law of the state, from the time that act went into operation. And the proviso in the act of assembly now’ in question, was introduced, manifestly, from the apprehension that the general expressions of the enacting clause of the law might be held to reach those whose parents afterwards *married, and deprive them of the greater rights r»2QQ of inheritance which belonged to them under the previous acts of L assembly. The proviso, like the expressions in the enacting clause, shows that the legislature were not looking to children whose parents would probably marry, but to children w’hose parents never would marry ; and they make no distinction between the issue of those who could not, and of those who would not, become lawfully joined in wedlock. If, from any cause whatever, the parents were never married, the children were illegitimate ; and all illegitimate children, undei* this act of assembly, may inherit from their mother and from each other. It follows, that the tract of land called “ Grassy Cabin,” upon the death of John Joseph Sloan, descended to his brothers and sister before mentioned ; and the plaintiff is not entitled to recover. The judgment of the circuit court is, therefore, affirmed. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Maryland, $nd was argued by counsel : On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed, with costs. 165 *201 SUPREME COURT [Jan’y *Samuel Sprigg, Appellant, v. The Bank of Mount Pleasant, Appellee. Principal and surety.—Parol evidence. The principles decided in the case of Sprigg v. Bank of Mount Pleasant, 10 Pet. 257, examined and affirmed. It is equally well settled in courts of equity, as well as in courts of law, as a rule of evidence, that parol evidence is inadmissible to contradict or substantially vary the legal import of a written agreement; and this is founded, on the soundest principles of reason and policy, as well as authority. Hunt v. Rousmanier, 8 Wheat. 211, cited. Extending the time of payment of a bond, and a mere delay in enforcing it, will not discharge a -surety; unless some agreement has been made injurious to the interest of the surety. It is a sound and well-settled principle of law, that sureties are not to be made liable beyond their contract, and any agreement with the creditor, which varies essentially the terms of the contract, without the assent of the surety, will discharge him from responsibility; but this principle cannot apply, where the surety has, by his own act, exchanged his character of surety, for that of principal; and then applies to a court of equity to reinstate him to his character of surety, in violation of his own express contract. Courts of equity will permit independent agreements which go to show a deed, on its face absolute, was intended only as a mortgage, to be set up against the express terms of the deed, only ort the ground of fraud ; considering it a fraudulent attempt in the mortgagee, contrary to his own express agreement, to convert a mortgage into an absolute deed; and it is equally a fraud on the part of a debtor, to attempt to convert his contract as principal, into that of a surety only. Appeal from the Circuit C^urt of Ohio. This case was brought before the court, at January term 1836, on a' writ of error, prosecuted by the present appellant, seeking to reverse the judgment of the circuit court in an action instituted against him on a joint and several bond, under seal, made by him and others, to the Bank of Mount Pleasant, for the payment of a sum of money stated in the bond, to the bank, upon which obligation the . bank had loaned the sum of $2100, and had paid the same to Peter Yarnall & Company, one of the co-joint and several obligors. The bank, after the loan, had continued to renew it for some years ; the discount and interest on the same having been paid to the bank every sixty days ; until, when Peter Yarnall & Company having become insolvent, suit was brought on the obligation, against Samuel Sprigg, and a judgment obtained against him for the ampunt of the obligation. The object of the writ of error was to have the judgment of the circuit court reversed, on the' ground that the indulgence for the payment of the, debt had been given to Peter Yarnall & Company, without the privity or knowledge of the plaintiff in error ; that he was only a surety in the obligation, which was, he alleged, known to the bank ; and he was discharged *9 wl ^rom the liability *for the debt to the bank. These allegations were J denied by the Bank of Mount Pleasant. The court in that case held that all were principals in the obligation, and were equally and fully bound to the payment of the debt; and the continuation of the loan on the bond, whether the same wTas to one or all the obligors did not impair the claim of the bank to recover from all and each of them. The judgment of the circuit court of Ohio wms affirmed. (10 Pet. 257.) In December 1838, the appellant in this case, Samuel Sprigg, filed a bill in the circuit court of Ohio, praying to have the judgment which had been affirmed in the supreme court, perpetually enjoined ; on the ground, that al the parties to the bond held by the bank, except Peter Yarnall & Com- 166 1840} OF THE UNITED STATES. 202 Sprigg v. Bank of Mount Pleasant. pany, were sureties for the loan made on the bond ; and that the bank, on the maturity of the bond, having re-discounted it, from time to time, at the request of Yarnall & Company, without the consent of the sureties, they, the complainant being one, were discharged. The circuit court, after the testimony of many witnesses had been taken, and a full hearing, refused the injunction ; and ordered the bill to be dismissed ; and from that decree the complainant prosecuted this appeal. The counsel for the appellant contended, that his case was made out as stated in the bill, and referred the court to the depositions, and particularly to the letters of Yarnall to the bank, and the account of the bank with Yarnall & Company, taken from the bank books. He contended, that there was no estoppel in equity, especially as a rule of evidence, though there may be some cases in its popular sense, as a broad rule of right. He contended, that though the sureties made themselves principals to pay in sixty days, yet they were not principals without their consent, so long as the bank might choose to renew the loan. He contended, that if he had made a case which would entitle him to relief, supposing the words “ as principals” were not in the obligation, that then he was entitled to the relief sought, notwithstanding the insertion of these words, “ as principals.” He contended, that the existence of the words “ as principals,” in the bond, did not deprive him of that equity which the like conduct of the bank would give him in the common case of a joint and several obligation. The plaintiff also contended, that to so give time and enter into new agreements, without the surety’s assent, was, though none might have been intended, a fraud upon him, notwithstanding the insertion of the words “as principals,” when the bank knew that the discount was for the sole benefit of Yarnall & Company. He further insisted, that the insertion of the words “ as principals,” when the bank knew the true relations of the parties, did not give the bank the right to renew the loan, to make new agreements, or to give further day of payment, at its pleasure, without the assent of the sureties. That if the defendants intended to gain such a *power or advantage, fair-dealing required them to ask or demand it from the sureties, in a plain way, as by a direct insertion of such a power in the obligation : a practice which this same bank has long since adopted. And that the decree of the court below ought to be reversed, and one entered, perpetuating the injunction, with costs. The counsel for the appellee contended, that the appellant, having acknowledged himself in the bond to be # principal debtor, was estopped rom alleging that he was only a surety, as between him and the appellee. so, that the testimony excepted to was entirely inadmissible, so far as it was sought by the same to contradict, &c., the bond ; there being no allega-wn in the bill, nor proof, that there was any fraud, surprise or mistake, in the paa mg or executing the same. Also, that the appellant, upon his own show-lug, admitting all in his bill stated to be true, was not entitled to the relief t *°r’ "^nd that, as the appellant was accustomed to transact business its 6 ^an^’ an<^ as the payment of the bond was deferred according to «ta he was bound by those usages; such usages, under the circum-had a Pai’t °f the bond or contract. Also, that the appellant ega y and equitably waived all his right as surety, if he were such, by 167 203 SUPREME COURT [Jan’y Sprigg v. Bank of Mount Pleasant. acknowledging himself to be a principal debtor, and so contracting with the bank ; and had thereby at least authorized the bank to treat him according to the character voluntarily assumed by him, until such time as he might give notice that he was but a surety, and require the bank to prosecute the collection of the bond. And that the court ought not to permit the appellant to disclaim the character of a principal debtor, and thereby violate his contract and good faith, and thus perpetrate a fraud upon the appellee. And that the appellant had failed, even if the testimony was admissible, to sustain by proof the material allegations of his bill. The appellee also contended, that the bank was entitled to a decree, and that decree should include, if the injunction in this case were dissolved, damages, according to the statutes of Ohio, which might be recognised as rules, &c., by this court; and which require the courts of that state, on the dissolution of an injunction to stay the collection of money, to render a decree for ten per cent, damages on the amount due, in favor of the defendants: and if an appeal should be taken to a superior court, and the injunction there dissolved, that court is required to render a decree for fifteen per cent, damages. The case was submitted to the court, on printed arguments, by Jacob and Webster, for the appellant; and by Alexander, for the appellee. Thompson, Justice, delivered the opinion of the court.—This case comes up on appeal from the circuit court of the United States for the district of *2041 Ohio. The appellant filed his bill on the *equity side of the cour J for an injunction, to enjoin all further proceedings on a judgment recovered against him by the appellees, on the law side of the court. The judgment was founded upon the same single bill now in question, and is as follows : “$2100. Know all men, by these presents, we, Peter Yarnall & Co., Samuel Sprigg, Richard Simms, Alexander Mitchell and Z. Jacobs, as principals, are jointly and severally held and firmly bound to the president, directors and company of the Bank of Mount Pleasant, for the use of the Bank of Mount Pleasant, in the just and full sum of twenty-one hundred dollars, lawful money of the United States, to the payment of which said sum, well and truly to be made, to the said president, directors and company, for the use aforesaid, within sixty days from the date hereof, we jointly and severally bind ourselves, our heirs, &c., firmly by these presents. Signed with our hands and sealed with our seals, this twentieth day of February, a. d. 1826. Peter Yarnall & Co., [Seal.] Sam. Sprigg, [Seal.] Rich’d Simms, [Seal.] Alex. Mitchell, [Seal.] Z. Jacobs,” [Seal.] “ Signed and delivered in presence of— The judgment at law came before this court on a writ of error, and is reported in 10 Pet. 257. There were in that case various pleas interposed, setting forth, substantially, that this bill was executed by the obligors, to be discounted at the bank; and that the defendant, Samuel Sprigg, was surety 168 1840] OF THE UNITED STATES. 204 Sprigg v. Bank of Mount Pleasant. only for Peter Yarnall & Company, who had executed the bill with him ; and that the bank had, by renewing or continuing the discount, after the time first limited for the payment of the same, discharged the sureties. The pleadings in the suit were very voluminous, and terminated in demurrers. The judgment of the circuit court was affirmed in this court; and the decision turned upon the point, that the defendant and all the other obligors had, by the express terms of the obligation, bound themselves as principals, and were thereby estopped from setting themselves up as sureties for Yarnall & Company, and claiming to be discharged by reason of the extended credit given to Yarnall & Company : and the present bill was filed on the equity side of the court, relying substantially on the same ground, for relief against that judgment. The bill states that Peter Yarnall and Samuel Mitchell were doing business as partners, nnder the firm of Peter Yarnall & Company ; and that the appellees were a banking company, doing business as a bank, in the town of Mount Pleasant. That about the 20th of February, in the year 1826, the said Peter Yarnall & Company borrowed from the bank $2100, and the single bill now in question was executed, and discounted at the bank, in the usual course *of business. That at the time of the loan, the bank knew that Peter Yarnall & Company were the principals, and so L received, and accepted, and treated them ; and that the other obligors were their sureties, notwithstanding the form of the obligation. That when the said obligation became due, to wit, on the 21st of April 1826, the bank, on receiving $22.40, paid by Peter Yarnall & Company, for the discount for sixty days, without the knowledge or consent of the sureties, gave a further credit and time of payment for sixty days. That the bank, at each consecutive day of discount, and payment of interest in advance, extended the payment of said bill, in like manner, until September or October 1828 ; until after the failure and insolvency of the said Peter Yarnall & Company, which happened about that time. That between the time the said obligation first became due, and the day when Yarnall & Company failed, the bank, or the said appellant and his co-sureties, could have collected and realized the money secured by the said obligation. And that if the bank had not renewed said loan, and given new and further time of payment, the obligation could have been collected from the said Peter Yarnall & Company. And the bill then charges, that the bank, contriving and intending to impose upon the appellant a loss which has occurred to them in consequence of a confidence and bargain made by themselves with the said Yarnall & Company, and in fraud of the said appellant and his co-sureties ; if at the time of bestowing such confidence and making such bargains, it was intended to hold the appellant and his eo-sureties liable, and more particularly in fraud of the appellant and his eo-sureties, if such confidence and contract with the said Yarnall & Company was, at the time of making the same, a mere personal confidence and contract with the said Yarnall & Company. The bill then sets out the proceedings at law, upon which a judgment has been recovered ; and prays a perpetual injunction against further proceedings upon the judgment and execution. The bank, in their answer, admit the discount of the single bill; and allege that it was so discounted at the request of the obligors, and the proceeds paid to Alexander Mitchel, one of the obligors. They positively deny 1G9 ^05 SUPREME COURT [Jan’y Sprigg v. Bank of Mount Pleasant. having any knowledge of any transaction in relation to said obligation, until it was presented to them for discount'; or that they had any knowledge of the relation in which said obligors stood to one another ; or that they knew that the proceeds of the obligation was obtained for the exclusive benefit of the said Peter Yarnall & Company ; or that they were the principal debtors in said obligation. They deny that they received, accepted and treated them as the principal debtors ; and they aver that the appellant and all the other obligors were principal debtors, and so contracted with and bound themselves to the bank ; as will appear by reference to the said single bill. And they further aver, that it was on the faith of this agreement alone, that they discounted the obligation ; and that, had not the obligors con-* tracted an<^ bound themselves as principals, let the relations *among J themselves be what it might, they would not have discounted the single bill; and that this agreement was made with full knowledge and fair understanding of the fact, and of the purport of the provision in said obligation. And they aver, that the appellant, having bound himself as a principal debtor to the defendants, he is estopped from now alleging that he is only a surety. They deny that they ever gave the said Yarnall & Company the further credit and time of payment as claimed in the bill, or otherwise. They admit, they used great lenity towards the obligors, in not requiring payment, promptly, when due ; but aver that they did so, because they had confidence in the honesty, integrity and solvency of the obligors, and considering them all as principal debtors. They admit the proceedings at law as set forth in the bill; and deny all manner of unlawful confederacy ; and claim the same benefit of this defence, as though they had demurred to the bill. To this answer, there is a general replication ; and the cause having been heard upon the bill, answer, replication, exhibits and testimony ; it was adjudged and decreed, that the complainant in the court below was not entitled to the relief prayed in the bill. Whereupon, the injunction which had been allowed was dissolved, and the bill dismissed. When this case was before the court on the writ of error, the effect and operation of the words, “ as principals,” contained in the single bill discounted at the bank, were fully considered ; and it was decided, that they operated as an estoppel, and precluded the defendants from going into evidence to show that he was only surety in the single bill. And unless it shall be found that a different principle prevails in a court of equity, the same result must follow upon the present appeal. It is said, however, on the part of the appellant, that there are no technical estoppels in a court of equity. This may be admitted ; but it will not affect the present question. For it is equally well settled, as a rule of evidence, in courts of equity as well as in courts of law, that parol evidence is inadmissible to contradict or substantially vary the legal import of a written agreement. And this rule is founded on the soundest principles of reason and policy, as well as on authority. This doctrine is fully recognised by this court in the case of Hunt v. JRousmanier, 8 Wheat. 211. The court say, it is a general rule, that an agreement in writing, or an instrument carrying an agreement into execution, shall not be varied by parol testimony, stating conversations or circumstances anterior to the written instrument, that this rule is recognised in courts of equity, as well as in courts of law. But courts of equity grant relief, in cases of fraud and mistake ; which can- 170 1340] OF THE UNITED STATES. 206 Sprigg v. Bank of Mount Pleasant. not be obtained in courts of law. In such cases, a court of equity may carry the intention of the parties into execution, where the written agreement fails to express that intention. This authority is so directly in point, that it cannot be necessary’ to refer to any other. But the principle will be found in accordance with the highest authority, both in this country *and in the English chancery. 1 Johns. Ch. 429 ; 6 Ves. 328, and note. *- • The bill does not charge that the words, “ as principals,” were inserted ; in the obligation by mistake, or under any misapprehension on the part of the appellant of their import and effect. But on the contrary, the bill states that the loan was made by the bank to Peter Yarnall & Company, in the usual way of making loans at that bank. From which it is fairly to be inferred, that this obligation was, in form, according to the usage of the bank ; with which usage, the obligors must be presumed to have been * conusant. Nor is there any direct charge of fraud on the part of the bank _ but it seems to be stated, as mattex- of inference from the allegation, that the loan was for the sole benefit of Yarnall & Company^, and that known to the bank. But whatever the charge may be, it is denied in the answer, -and is entirely unsupported by the testimony. The charge of fraud rests altogether upon the allegation that the appellant was only a surety in the single bill, and that was known to the bank. All parol evidence on these points * seems to have been admitted ; although objected to, on the part of the bank, as inadmissible, on the ground that it contradicted the written instrument. The ruling of the court on this objection does not appear upon the record. But if the evidence was admitted, the appellant has no ground of complaint. It was his own evidence. And all that this evidence established, was the simple fact, that the appellant was only surety’ fox* Yarnall & Company. But that can have no influence against his direct admission in the obligation, that he was a principal; and there being no pretence of mistake or surprise, there can be but one meaning attached to this admission ; which is, that as between the obligors and the bank, all were principals, whatevex’ might be their relation between themselves. They had, undoubtedly, a right to waive their character and legal protection as sureties, and assume the character of principals. This admission in the obligation must have been for some purpose ; and none can be reasonably assigned, except that it was intended to place all the obligors upon the same footing, with respect to their liability to the bank. The evidence did not support the allegation that the bank had made any -agreement to extend the loan or time of payment, othex- than continuing the discount, in the ordinary course of business at the bank. The form of the obligation dispensed with the necessity of giving any notice to the appellant, even considering him in the character of a surety ; and extending ' the time of payment, and a mere delay in enforcing it, will not discharge a surety, unless some agreement has been made injurious to the interest of the " surety ^nothing of which appears to have been done in this case. 9 Wheat. ' ^20 ; 12 Ibid. 554. The cashier of the bank denies that he ever made any contract with Yarnall & Company, for the extension of the payment of the -obligation discounted at the bank, on the 20th of February 1826, for Petex* -arnall & Company, and others *(referring to the single bill in ques- 1 ion), after the same became due, for sixty days, or any’ other period ; •- 208 ut discounted the same according to the custom of the bank ; but the time in 208 SUPREME COURT [Jan’y Sprigg v. Bank of Mount Pleasant. er indulgence given was merely at the will of the bank. That he could not make any contract for the extension of payment, according to the rules of the bank, without an order from the board of directors ; and that, on an examination of the minute-book, he found no such order ; where, if it had been made, it would appear : and the inference attempted to be drawn, that Yarnall & Company were considered and accepted by the bank as the principal debtors, because the account kept at the bank of this loan was in his name alone, was done away, and fully explained, by the testimony of the «ashier, as to the custom of the bank, that the account is always kept with the first signer, unless otherwise especially authorized and directed. But, admitting that the bank knew that Yarnall & Company were the principal debtors, this would not exonerate the other obligors from their responsibility as principals, in violation of their express contract. If Yarnall & Company were of doubtful credit, it might have been the very reason why the bank required all the obligors to bind themselves as principals. It is, no doubt, a sound and well-settled principle, that sureties are not to be made responsible beyond their contract ; and any agreement with the creditor, which varies essentially the terms of the contract, without the assent of the surety, will discharge him from his responsibility. But this principle cannot apply, where the surety has, by his own act, exchanged his character of surety for that of principal; and then applies to a court of equity to reinstate him to his character of surety, in violation of his own express contract. This would be sanctioning, a fraud upon the creditor. This case has been likened at the bar to that of a deed, absolute in its face, but which, by an independent agreement between the parties, was intended only as a mortgage. Courts of equity will permit such agreements to be set up against the express terms of the deed, only on the ground of fraud ; considering it a fraudulent attempt in the mortgagee, contrary to his own express agreement, to convert a mortgage into an absolute deed. And it is equally a fraud un the part of a debtor, to attempt to convert his contract as principal into that of surety only. No attempt has been made, in the present case, to show that the bank had made any agreement with the appellant, that he should be considered and treated as a surety only ; contrary to the express terms of his contract to be bound as a principal. If any such agreement had been shown, the analogy to the case put of a mortgage, might hold. The allegation, that the neglect of the bank to prosecute Yarnall & Company has, by their insolvency, thrown the loss of the debt upon the sureties, might be of some weight, if any measures had been taken by them to expedite the collection of the debt from Yarnall & Company, or no longer to *2001 con^*nue kb0 discount of the *obligation. But no such measures J appear to have been taken ; and their solvency must be at the risk of the sureties, who have, by their express contract,.assumed the character of principals. The decree of the circuit court is accordingly affirmed. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Ohio, and was argued by counsel : On consideration whereof, it is ordered and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs. 172 1840] OF THE UNITED STATES. *210 *State of Rhode Island and Providence Plantations, Complainant, v. State of Massachusetts, Defendant, (a) Chancery practice and pleading.—Suits between states. By a rule of the supreme court, the practice of the English courts of chancery is the practice in the courts of equity of the United States. In England, the party who puts in a plea, which is the subject of discussion, has the right to begin and conclude the argument; the same rule should prevail in the courts of the United States, in chancery cases. In a case in which two sovereign states of the United States are litigating a question of boundary between them, in the supreme court of the United States, the court have decided, that the rules and practice of the court of chancery should, substantially, govern in conducting the suit to a final issue. 12 Pet. 735-9. The court, on re-examining the subject, are fully satisfied with the decision. In a controversy where two sovereign states are contesting the boundary between them, it is the duty of the court to mould the rules of chancery practice and pleading in such a manner as to bring the case to a final hearing on its merits; it is too important in its character, and the interests concerned too great, to be decided upon the mere technical principles of chancery pleading. In ordinary cases between individuals, the court of chancery has always exercised an equitable discretion in relation to its rules of pleading, whenever it has been found necessary to do so for the purposes of justice. In a case in which two sovereign states are contesting a question of boundary, the most liberal principles of practice and pleading ought, unquestionably, to be adopted, in order to enable both parties to present their respective claims in their full strength. If a plea put in by the defendant may in any degree embarrass the complainant, in bringing out* the proofs of the claim on which he relies, the case ought not to be disposed of on such an issue; undoubtedly, the defendant must have the full benefit of the defence which the plea discloses, but at the same time, the proceedings ought to be so ordered as to give the complainant a full hearing on the whole of his case. According to the rules of pleading in the chancery courts, if the plea is unexeptionable in its form and character, the complainant must either set it down for argument, or he must reply to it, and put in issue the facts relied on in the plea ; if he elects to proceed in the manner first mentioned, and sets down the plea for argument, he then admits the truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to prevent the recovery ; if, on the other hand, he replies to the plea, and denies- the truth of the facts therein stated, he admits that if the particular facts stated in the plea are true, they are then sufficient in law to bar his recovery; and if they are proved to be true, the bill must be dismissed, without a reference to the equity arising from any other facts stated in the bill. If a plea, upon argument, is ruled to be sufficient in law to bar the recovery of the complainant, the court of chancery would, according to its uniform practice, allow him to amend, and put in issue, by a proper replication, the truth of the facts stated in the plea; but in either case, the controversy would turn altogether upon the facts stated in the plea, if the plea is permitted to stand. It is the strict and technical character of those rules of pleading, and the danger of injustice often arising from them, which has given rise to the equitable discretion always exercised by the courts of chancery in relation to pleas ; in many cases, when they are not overruled, the court will not permit them to have the full effect of a plea.; but will, in some cases, leave to the defendant the benefit of it, at the hearing; and in others, will order it to stand for an answer, as, in the judgment of the court, may best subserve the purposes of justice. The state of Rhode Island, in a bill against the state of Massachusetts, for the settlement of the boundary between the states, had set forth certain facts on which she relied in support of her claim for the decision of the supreme court, that the boundary claimed by the state of Massachusetts was not the true line of division between the states, according *to their respec- r*g, tive charters; to this bill, the state of Massachusetts put in a plea and answer; which t e counsel for the state of Rhode Island deemed to be insufficient. On a question, whether the P ea and answer were insufficient, the court held—that as, if the court proceeded to decide e case upon the plea, it must assume, without any proof on either side, that the facts stated (a) Mr. Justice Story did not sit in this case. 173 211 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. in the plea were correctly stated, and incorrectly set forth in the bill, then it would be deciding the case upon such an issue as would strike out the very gist of the complainant’s case; and exclude the facts upon which the whole equity was founded, if »the complainant had any. The court held, that it would be unjust to the complainant not to give an opportunity qf being heard, according to the real state of the case between the parties ; and to shut out from consideration the many facts on which he relied to maintain his suit. It is a general rule, that a plea ought not to contain more defences than one ; various facts can never be pleaded in one plea, unless they are all conducive to the single point on which the defendant means to rest his defence. The plea of the state of Massachusetts, after setting forth various proceedings which preceded and followed the execution of certain agreements with Rhode Island, conducing to show the obligatory and .conclusive effect of those agreements upon both states, as an accord and compromise of a disputed right, proceeded to aver, that Massachusetts had occupied and exercised jurisdiction and sovereignty, according to the agreement, to the present time; and then set up as a defence, that the state of Massachusetts had occupied and exercised jurisdiction over the territory from that time up to the present; the defendants then pleaded the agreements of 1710 and 1718, and unmolested possession from that time, in bar to the whole bill of the complainant. The court held, that this plea was twofold: 1. An accord and compromise of a disputed right; 2. Prescription, or an unmolested possession from the time of the agreement. These two defences are entirely distinct and separate, and depend upon different principles ; here are two defences in the same plea, contrary to the established rules of pleading; the accord and compromise, and the title by prescription united in this plea, render it multifarious ; and it ought to be overruled on this account. This case was before the court, at January term 1838. The state of Rhode Island, in 1832, had filed a bill against the state of Massachusetts, for the settlement of the boundary between the two states ; to which bill Mr. Webster, at January term 1834, appeared for the defendant ; and on his motion, the cause was continued until the following term, when a plea and answer were filed by him, as the counsel for Massachusetts. Before January term 1837, the state of Rhode Island filed a replication to the plea and answer of the defendant ; at the same time giving notice of a motion to withdraw the same. At January term 1838, the counsel for Massachusetts moved to dismiss the bill filed by the state of Rhode Island, on the ground that the court had no jurisdiction of the cause. This motion was argued by Austin, the Attorney General of Massachusetts, and by Webster, for Massachusetts ; and by Hazard and Southard, for the state of Rhode Island ; and was overruled. (12 Pet. 657.) Afterwards, at the same term, Webster, on behalf of the state of Massachusetts, as her attorney and counsel in court, moved for leave to withdraw the plea filed in the case on the part of Massachusetts ; and also the appearance which had been entered for the state. Hazard moved for leave to •withdraw the general replication to the plea of the defendant in bar, and *9191 to amend the original bill. *The court, after argument, ordered, that J if the counsel on behalf of Massachusetts should.elect to withdraw the appearance before entered, leave be given for the same ; and the state of Rhode Island might proceed ex parte. But if the appearance were not withdrawn, that then, as no testimony had been taken, the parties be allowed to withdraw or amend the pleadings under such order as the court might thereafter make. (12 Pet. 756.) • At January term 1839, Southard, on behalf of the state of Rhode Island, stated, that the bill filed by the state had been amended ; and moved that a rule be granted on the state of Massachusetts, to answer in a short time, so that the cause might be disposed of during the term. The court, the bill 174 1-43] OF THE UNITED STATES. 212 Rhode Island v. Massachusetts. of the state of Rhode Island having been amended the second day of the term, ordered that the state of Massachusetts should be allowed until the first Monday in August 1839, to elect whether the state would withdraw its appearance, pursuant to the leave granted at January term 1838 ; and if withdrawn within that time, the state of Rhode Island should be, thereupon, at liberty to proceed ex parte. If the appearance of the state of Massachusetts should not be withdrawn before the first Monday in August 1839, the state to answer’ the amended bill before the second day of January 1840. (13 Pet. 23.) The amendments made by the complainants in the bill were, chiefly, the insertion, by reference to reports of the commissioners of the colony of Massachusetts, to the government of Massachusetts, while a colony, on the 13th of April 1750, and on the 21st of February 1792, to the legislature of the state of Massachusetts, appointed by an act of the commonwealth of Massachusetts, passed on the 8th day of March 1791, “for ascertaining the boundary line between this commonwealth and the state of Rhode Island.” The report of April 13th, 1750, stated, that the commissioners on the part of the colony of Massachusetts met the gentlemen appointed on behalf of the colony of Rhode Island, on the 10th of April 1750, “ and spent part of that and the next succeeding day in debating on said affair with those gentlemen and produced the agreement of 1710-11. “Sundry plans, &c., were offered to run and review with them the said line, but they refused to go, or join us herein, but insisted on our going with them to a certain place on Charles river, in Wrentham, from which they, a few months since, measured three miles south, and then extended a west line, with the variation west, to the west bounds of that colony, as they claim as the west bounds of that colony, as they informed us ; which bounds they claim as their north bounds; and is about four or five miles northward from Woodward and Saffrey’s station.” The report also stated, “ that on the return of the commissioners to the place of meeting, the Rhode Island commissioners not having accompanied the Massachusetts commissioners to the station, they found them at the original place of meeting, who desired the commissioners would adjourn to a second meeting, which was assented to, and the meeting fixed at *the same place, in October following, in case their respective governments consented thereto.” [213 The second report was made by “The commissioners on the part of Massachusetts, to the legislature of that state, Feb. 21, 1792.” It was stated to e a report “ that the commissioners appointed by an act of the legislature of the commonwealth of Massachusetts, passed on the 8th day of March i, tor ascertaining the boundary line between this commonwealth and e state of Rhode Island, have carefully attended the services assigned om, and take leave to report their doings.” he report stated, “that on the 15th of August 1791, we, by agreement, met the commissioners from the state of Rhode Island, at Wrentham, in this commonwealth, and after exchanging the powers under which we severally ® e , we proceeded to discuss the subject that gave rise to our appoint-f ?n course of which it appeared, that thb state of Rhode Island, ' river eir cons^rllc^on this expression, ‘three miles south of Charles erj or of any and every part thereof,’ in the ancient charter of the colony 175 213 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. of Massachusetts, and as the south bounds of the same, claim near three miles north upon this commonwealth, than the present line of jurisdiction between the two governments ; the commissioners of the commonwealth, from the circumstance that the branch, now called Charles river, and from which the claim of the state of Rhode Island would run three miles south, to ascertain the south boundary of the commonwealth, could not have been known by the name of Charles, at the time of granting the Massachusetts charter in 1621 ; and from this line being ascertained and fixed at a different place by commissioners chosen, by the colonies of Massachusetts and New Plymouth in 1667, at a time when the intentions of the grantor and grantees must have been known, are convinced, that the claim of the state of Rhode Island is ill-founded ; but to complete, if possible, the intentions of our appointments, and that the disputes between the governments might be amicably adjusted, we united'with the commissioners of the state of Rhode Island, in the agreement as in No. 1. “In examining and comparing the charter of the two governments, granted by the successive kings of England, under which both claim, it appears, that the first charter to the colony of Massachusetts was granted by King James the First, in 1621, and assigned a certain territory to that colony, bounded by an east and west line, which was to be three miles south of Charles river, or of any and every part thereof ; the same expression is also used for limiting a part of the bounds of the old colony of Plymouth, and was probably copied from their charter, into the Massachusetts, to prevent an interference of claims ; the same line is adopted in the charter from King Charles the Second, to the colony of Rhode Island, granted in 1663, and is their northern boundary. The erection of a third government, referring to the same bounds, seems to have rendered it necessary for Plymouth and Massachusetts to ascertain their bounds ; accordingly, those two governments, in 1664, appointed commissioners *to survey the most southern branch of the Charles river, and to lay off from thence, three miles due south, as their boundary line by charter ; this was accordingly done, and they fixed upon a large tree, then known and since noted by the name of the Angle tree, as the north line of Plymouth, and the south line of Massachusetts. The knowledge and name of the place is preserved, and the commonwealth, in order to perpetuate it, have erected in the place of the tree, the remains of which are now to be seen, a handsome stone monument, which bears the name of Angle tree, and is explained by suitable inscriptions on the different faces of it; This the commissioners apprehend to have been the tree and original boundary, and is three miles south of the most southerly waters of Charles river. It does not appear, that the colonj of Rhode Island ever expressed any dissatisfaction respecting their northern boundary, until 1716, or thereabouts, which finally ended in the appointment of commissioners by both governments, in 1818, who fixed a new station about two miles north of the Angle tree, and which was called a tei the surveyors, ‘Woodward and Saffrey’s Station.’ This place is well known, although no records of it have been preserved, or the proceedings o t e commissioners ratified by either government ; yet the line drawn fiom i has been practised upon as the line of jurisdiction between the governmen from that to the present time. This commonwealth then lost two mi es n width along the northern line of Rhode Island, and seems to 176 1840] OF THE UNITED STATES.' 214 Rhode Island v. Massachusetts. Acquiesced in the agreement, upon principles of generosity. The ancient •charters of New Plymouth and Rhode Island were irregularly bounded on one another : the former, as was supposed, by the shores of the Nan'a-ganset bay, the latter, by three miles east of those shores; this interference of boundary, however, appears not to have given any discontent, as the date of the charter of New Plymouth was prior to that of Rhode Island ; and the peaceful jurisdiction to the shores of Narraganset bay, was enjoyed not only by the old colony of Plymouth, but by Massachusetts (after these two colonies were united by the charter of 1691), down to the year 1730, at which time the colony of Rhode Island passed an act claiming the jurisdiction of the territory on their eastern boundary, granted to them, by charter ; in this act and in the subsequent dispute and determination of the subject, not a claim, nor the intimation of one, but that their northern boundary wras satisfactory, as established in 1718. In 1740, the king of Great Britain, who was then the sovereign of these states, appointed commissioners to hear and determine the dispute then existing between the governments, who, after hearing the parties, came to the determination as in No. 2, by which the extent of Rhode Island charter was allowed, and the jurisdiction of Massachusetts cut. off from the shores of Narraganset bay. This judgment, unexpected by either party, was disapproved of by both, and they accordingly appealed to the king in council, where, however, it was ratified in 1746. As soon as this information was received by the colony of Rhode Island, they proceeded to appoint their Commissioners, and assigned ‘ the time of meeting for them to begin running the lines that had thus L been determined, and they gave information thereof to the governor of this their province ; but the legislature not being convened until some time after the period affixed for the Rhode Island commissioners to begin the survey, they thought it unnecessary for them to join in the commission. These lines we perambulated, in company with the commissioners of the state of Rhode Island, and excepting one or two stations between Providence and Bristol, which were well ascertained, we found that they had encroached upon this commonwealth from one-quarter to three-quarters of a mile in width. We were attended by suitable persons, approved by both parties, for making the necessary observations and surveys. Here, probably, all further dispute relative to boundary lines with the colony of Rhode Island would have for ever ended, had it not have been for the rage of political parties at this time within that colony ; one of which, to effect a decided majority, was extremely anxious for an extension of northern jurisdiction. Influenced by these motives, and perhaps, in some measure, by their late success, they, 111 1740, brought forward a new claim for extending their northern boundary beyond the line established in 1718 ; and to support that claim, they appointed commissioners, in 1750, to examine what is now called Charles fiver, and from the most southern part of the same, to survey off three Wiles as the boundary of Massachusetts, agreeably to their charter. A plan ot this survey was laid before us, and copy of it herewith presented. We lave inserted our own survey of ■what we conceive to be the most southern part of Charles river, as intended by the charter, above Whiting’s pond, and the position of the Angle tree. It may not be unnecessary to observe, at at the southern head of what we called Charles river, is a place known by a large chesnut tree ; thence the stream descends to Whiting’s pond, where U Pet.—12. • 177 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 215 it forms a considerable lake, and afterwards resuming its proper shape (and now known by the name of Mill river or brooke), pursues its course in a northerly direction, till it joins that stream which is known by the name of Charles river, the confluence of the two streams, six miles more northerly than the chesnut tree at the southern head of Charles ; after perambulating the bounds now practised upon, and ascertaining their deviations from the stations to which they ought to have been fixed, and learning the principles upon which Rhode Island supports her claims, and the extent of them, we adjourned to the 5th day of December last, then to meet at Providence, in the state of Rhode Island ; at which time and place, we met with the commissioners from Rhode Island, and after fully discussing the several claims, and endeavoring to conciliate the difference between the two states, agreeably to the powers of our commission, we were convinced that no agreement can be made at present with them, unless we yield a valuable territory, to which they have no claim, and which we hold not only by repeated charters, but by the agreement of the state of Rhode Island in 1718 ; and so far from its appearing *that encroachments have been made by this ' commonwealth on that state, that the contrary is notoriously the fact.” The counsel of the state of Massachusetts, after January term 1839, and in conformity with the order and leave of the court then given, filed a plea and answer to the amended bill of the state of Rhode Island. The plea and answer were the same, in all important particulars, as that originally filed at January term 1834. The plea and answer conclude—“And the defendant saith, that there is no other matter or thing in the complainant’s said bill of complaint contained, material for this defendant to make answer unto, and to which said defendant has not already pleaded and answered as aforesaid ; all which matters and things pleaded and answered, as aforesaid, the defendant is ready to verify and maintain as the court shall order. Wherefore, said defendant prays to be hence dismissed, with costs.” All the matters in the bill, material in this case, and in the plea and answer, with the exception of the amendments given on pages 213-15, ante, are stated fully in the report of the case in 12 Pet. 657 ; and in the opinion of the court, delivered at this term, by Chief Justice Taney. The case was before the court, on the sufficiency of the plea and answer. It was argued by Hazard and Whipple, for the state of Rhode Island ; and by Austin, Attorney-General of Massachusetts, and Webster, for the defendant. Before the argument was proceeded in, a question arose between the counsel in the case, on the right of the counsel for the complainants to begin and conclude the argument. The Court held, that by a rule of the court, the practice of the English courts of chancery is the practice in the courts of equity of the nlte States. On looking into the books of practice in the English courts o chancery, it appears, that the party who puts in the plea which is t e su ject of discussion, has the right to begin and conclude the argument. 178 ] í J . OF THE UNITED STATES. 216 Rhode Island v. Massachusetts samé rule should prevail in the courts of the United States, in chancery proceedings. Austin, for the state of Massachusetts.—The question before the court is on the sufficiency of the plea in bar to the plaintiff’s demand, both for discovery and relief. The plea is open to any just exception, either as to its form or substance ; but as it purports to be an answer or bar to the plaintiff’s complaint, its sufficiency must materially depend on the structure of the bill in which that complaint is set forth. Any answer is sufficient to a bill, which is so framed at to require none. The respondent contends, that this opens, substantially, the whole merits of the case. Bogardus n. Trinity Church, 4 Paige 178. The sufficiency of the plea is very different from the truth of it. For the purpose of the present inquiry, all its allegations are to be taken to be true. If the plaintiff denies any of them, he has another *mode of proceeding : it is understood also, that all allegations made in the bill, and denied by the plea, are, for this hearing, to be taken *-according to the plea, and not according to the statement of them in the bill; and it is admitted, that whatever is stated in the bill, and not controverted by the plea, is, in this stage of the cause, to be taken as true. If, under these circumstances, the plea leaves the plaintiff without a sufficient cause for discovery and relief, it has answered its office, and must be sustained. The case seems to the respondent in no material degree to differ from a general demurrer to the bill ; except only that the allegations of the plea control those of the bill, and are admitted to be true pro hác vice only. Before the sufficiency of the plea can be ascertained, the matter to be answered must be examined and understood. The bill sets forth the plaintiff’s title. It is of a form adopted, not very remotely, into the practice of chancery ; and requiring, or at least admitting, what the books call, without much propriety, an anomalous or irregular plea ; thus applying terms to a plea, which in fact belong to the bill. It introduces, in anticipation, the subject-matter of the defence, and attempts to avoid the effect of it, by special allegations. Substantially, the bill enumerates and recites the let-ters-patent of the counsel established at Plymouth in 1621 ; the deed of said counsel to Sir Henry Roswell and others, of 19th March 1628 ; the first charter of Massachusetts, in 1629, by Charles I. From all these, one fact only is material, and that is not in dispute at all, viz : that Massachusetts became a colony of the British crown, at the settlement of it by the pilgrims, and that its southern boundary line, first mentioned in the letterspatent of 1621, and repeated in the words whenever occasion required, was by “all those landes and hereditaments whatsoever, lyeing within the space of three»Englishe myles on the south parte of the saide river, called Charles river or any or every parte thereof.” It is obvious, from these public papers, the effect of which is admitted by both parties, that the southern boundary of Massachusetts was described with sufficient accuracy ; and the only matter to be done to fix it with perfect certainty, was to run on the earth, and through the then uninhabited wilderness, the line described in the charter. The bill proceeds, after referring to the surrender of the letters-patent of the council of Plymouth, in 1635 (17th June), and the planting and 179 217 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. purchasing of what now is the territory of Rhode Island (which facts are not material or controverted), to recite the charter of the colony of Rhode Island, granted by Charles II. on the 8th July 1643, whereby Rhode Island is bounded “ northerly on the said south or southerly line of Massachusetts.” The bill states also, the dissolution of the first charter of Massachusetts, by the court of chancery in England ; the new charter of William & Mary, in October 1691, re-establishing on this' line, the ancient boundary, in the same words, and the Declaration of Independence * , of the United States : documents not essential to any controverted *2181 .... . -* *point in this suit ; unless it be, as before was contended by the attorney-general of Massachusetts, and now again respectfully insisted . upon, that the Declaration of Independence repealed all these charters, and established the several former colonies in their new character of sovereign and independent states, by the line and boundary actually enjoyed and pos sessed by them, respectively, on the day of their political nativity, the 4th of July 1776. All these documents, not controverted by the plea, and not to be denied -with truth, are admitted, with all their legitimate consequences. The bill then proceeds to state, that disputes had arisen, not in regard to any charter, or where the line ought to be drawn in conformity with the provision of those instruments ; but where, on the earth’s surface, a line corresponding with the charters should be described. It sets forth the appointment of commissioners by each colony, “ to settle the boundary line the meeting of those commissioners ; and their unanimous agreement, certified under their hands, on the 19th January 1710-11 ; “that a stake set up by N. Woodward and S. Saffrey, in 1642, and since often renewed, in latitude 41° 55', being three English miles distant southward from the southernmost part of Charles river, agreeably to the letters-patent for the Massachusetts province, be accompted and allowed on both sides the commencement of the. line,” &c. The commissioners having thus ascertained a point of beginning, and it being necessary to protract the line from that point wrhich they did not do at that time, the bill recites the appointment of other commissioners by the two colonies, and their meeting at Rehoboth, on the 22d October 1718, to protract the line ; the fact that they re-affirmed the correctness of the place of beginning, ran the line as described by them, certified their proceedings under the hands and seals of a majority of their whole number, and of the delegation of each colony ; and that the general assembly of Rhode Island passed a resolution, on the 26th October 1718, ordering that the return be accepted, and placed to record in the colony books. It seemed to the counsel of Massachusetts, that if the bill had stopped here, there would be nothing for the respondents to answer ; because it is everywhere admitted in the bill, that the line thus run, is that to which Massachusetts laid claim, before Rhode Island was in existence ; the line to which Massachusetts was possessed, and over all territory north of which she was in the actual exercise of jurisdiction, when the charter of Rhode Island was granted ; and that is all she had ever claimed, or now claims in that direction, by charter, possession or title of any kind. It would seem, too, that both parties to this suit admitted the line by the charter ; that they intended to describe on the earth the line so designated in the charter , 180 OF THE UNITED STATES. Rhode Island v. Massachusetts. 218 18401 that they did so by commissioners mutually appointed on two different occasions, at the interval of seven years ; and that the plaintiff had accepted and recorded their proceedings, as satisfactory and conclusive, at the time, now more than one hundred and twenty years ago. *But the plaintiff having thus inserted the bar matter in his bill, proceeds to give his answer to it. It is obvious, therefore, that to L this answer, and to so much of this answex* only as is material to set aside the bar matter, is the respondent bound to reply. The plaintiff has furnished for the respondent a sufficient defence ; he has set up a bar to his own further proceedings; and unless he removes the bar of his own procuring, the respondent has no need to make any reply. What then, is the allegation in the bill, which professes to be sufficient to countervail an agreement of this sort ; and of possession in conformity with such agreement for more than a century ? In the first place, it is apparent in the bill, and distinctly admitted by the learned counsel of Rhode Island, that no fraud is charged to anybody in these transactions ; but it is alleged, that the parties acted under a mistake. It is averred, that the commissioners of Massachusetts, believing, no doubt, that the point which they designated as Woodward and Saffrey’s station, was three mile^ and no more, from Charles river, affirmed to the Rhode Island commissioners, that it was the proper place of beginning for the line, and that the Rhode Island commissioners, taking the word of the Massachusetts commissioners for true, or searching for themselves and coming to the same conclusion, or examining the map then before them, made by Woodward and Saffrey, were of the same opinion, and jumped together in judgment ; and that the commissioners of the two colonies, in 1718, in running out the line, were actuated by the same means, and established the line, which, as ever before, so ever since, has been the actual line of division between these neighboring sovereignties. And that in all this, without fraud or misrepresentation, there is, nevertheless, a fatal mistake. It is admitted, that all parties acquiesced in the doings of the commissioners, until 1749, more than thirty years ; when Rhode Island discovered, as is alleged, that the stake of Woodward and Saffrey was more than three miles, viz., seven miles from Charles river; and that the Rhode Island commissioners, and the Rhode Island legislature, acting under this mistake, are not bound by the treaty, compromise, arbitration or award, and have now a right to claim for that cause, by the intervention of this honorable court, to set aside the conventions of 1710 and 1718, and re-examine and adjust the oundary on their present information ; and by the letter of their ancient charters, as they are now understood by the plaintiff. The residue of the bill recites the ex parte proceedings of Rhode Island, ° etermine the true line, independent of the agreements of 1710 and 1718, an the various attempts made to induce Massachusetts to re-open the mater , all which were ineffectual, as is confessed by the fact, distinctly mi ted, that for all time since, Massachusetts has been a government, coomal, provincial, federative or sovereign, she lias had the actual, quiet possession *and occupation, jurisdiction and con- rie< of and over the premises in dispute. Now, it seems to the L ?8e the respondent, that to this complaint, thus set forth, a demurrer g sa ely have been filed ; and that to a bill to which a demurrer would 181 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 220 be sustained, any plea or answer must be deemed sufficient. Such bill contains its own answer. It incorporates the defence ; and whatever else may be said of the plea, it cannot be deemed inadequate or insufficient for the defence. But the respondent is unwilling that the record should contain only the plaintiff’s colored view of the treaty, covenant or arbitrament, entered into in 1710 and 1718. However safe it would be, to admit such a mistake as the plaintiff alleges, yet the facts afford a stronger ground, and the respondent avails himself of it. The plea, therefore, to the substance. of which the attention of the court is now solicited ; takes from the plaintiff’s bill the whole subject of the proceedings of the commissioners in 1710 and 1718, and treating of each of them severally, avers, that the “ whole real and true merits of said complainant’s supposed cause or causes of action, claims, grievances and complaints, set forth and supposed in said bill of complaint, were fully heard, tried and determined, in the hearing and by the judgment of said commissioners ; that the agreement was fair, legal and binding between the parties, and was, in all particulars, a valid and effectual settlement of the matter in controversy ; and was had and made without covin, fraud or misrepresentation, and with a full and equal knowledge of all circumstances by both parties ; and that the same is still in full force, in no way waived, abandoned or relinquished ; that the station called Woodward and Saffrey’s station, was then well known, the place where it was fixed of common notoriety, and the line run therefrom as aforesaid, capable of being discovered and rene«wed ; that the said defendant has held and possessed, occupied and enjoyed the land, property and jurisdiction, according to said station and line running therefrom, from the date of said agreement to the present time, without hinderance or molestation.” It is certainly true, that the plea does not undertake to say that the Woodward and Saffrey station is three miles southwardly of Charles river, and no more. It does not put in issue, whether now a revision of the line, according to the charter, w’ould describe the same place. If the plans exhibited in this case, either by Rhode Island or Massachusetts, are correct, no revision could alter the line ; for it is clearly within three miles of one of the branches of that river ; and the only question would be, whether the charter, by the terms in it, viz., “on the south part of Charles river, or of any or every part thereof,” meant to include one of the forks as part of the river, or not. But the geographical and historical facts, which are notorious, and, of course, to be taken notice of by the court (one # _ of which *both these maps prove), are important in the case. Charles ^21J rjver had never been explored, in 1642, by any European, and its borders were occupied only by savages. Woodward and Saffrey went there to determine the river ; the off-set of three miles ; and the line of boundary. It is very immaterial, how they determined it. The stream called Chailes rives acquired that name not from nature, but man. When and what was called Charles, became Charles ; what was called part of the river, was, for all human purposes, thenceforth known and notorious as part of the liver. They fixed their station within three miles of water flowing into the main stream. They found, or they called, this water, Charles river. If it was unquestioned, it must have been conclusive. If it was questioned or ques tionable, if after Rhode Island came into existence, and in 1710, near seventj 182 OF THE UNITED STATES. Rhode Island v. Massachusetts. 221 years after the naming of this water by Woodward and Saffrey, it was brought into question by Rhode Island, it was then a proper subject of settlement, compromise and agreement for the commissioners ; and their decision settled the matter conclusively for all after time. It was the very question they met to settle ; and their opinion, judgment and award, made it what they determined it to be. The respondent contends, first, that it is not necessary to the sufficiency of the plea, to controvert or notice in any way the suggestion of a mistake. 2d. That mistake or no mistake are substantially and sufficiently put in issue by the plea, so that the plaintiff may join the issue there tendered, if he pleases. On the first point, it is respectfully submitted, that where a party alleges a proceeding to be had under a mistake of fact or law, and sets forth the circumstances in which he supposes the mistake to exist, if, by the circumstances so stated, it is apparent, that there was no mistake, the allegation may be treated as a nullity. The legal inference from the matter so stated, and not the term applied to it, must regulate the pleading of the adverse party, and the decision of the court. Story Eq. Plead. § 680, and note. The plaintiff sets forth his circumstances of supposed mistake. They are these : Massachusetts being in possession of aline of boundary, Rhode Island complains, and proposes a joint commission to settle it. Commissioners meet. Governor Dudley, on the part of Massachusetts, tells Lieutenant-Governor Jenckes, of Rhode Island, that the true point is the Woodward and Saffrey station. Governor Jenckes, either knowing that fact himself, before ; or in some other way being convinced, agrees to it, and signs an award fixing that station as the point of beginning. Nine years after, the > same thing is repeated by other commissioners, and the whole line run from that point. The bill does not allege, that the Rhode Island commissioner believed the station to be the true one, because Governor Dudley told him so; but avers that he did believe the fact, which being the very thing he was commissioned to ascertain, it must, at *this distant day, be sup- r3|e posed, that he believed it on sufficient and satisfactory examination. L It is obvious, that this, by the plaintiff’s own showing, is no mistake, as that term is understood in equity. When negotiators meet to decide a question, it is impossible but that one must make an assertion to the other, which after the lapse of an hundred years, the generation of the then present period may deem wrong in point of fact. So, of arbitrators or referees. If a decision that should appear to the heirs of a remote ancestor to be wrong, could be re-investigated, on the allegation of the losing party, that the verdict or judgment was a mistake (which every losing litigant is ready enough to make), there uouid be no end to law-suits ; and the decision which this court may pronounce in this case, may, on the same principle, be revived an hundred years hence, by a suggestion that there was a mistake in the forming of it. It is impossible, that any declaration made by Governor Dudley one hundred and thirty years ago, could be known now ; and the suggestion of the plaintiff, ' m this regard, must be a mere fancy-sketch. The allegation, if made, could ; be only the declaration of an opinion. Gov. Dudley died in 1720, aged seventy-three years. 1 Holmes’ Annals 525. The fact referred to occurred m 1642, five or six years before he was born. The statement of an opinion 183 222 SUPREME CQURT [Jan’y Rhode Island v. Massachusetts. • is no misrepresentation. Scott v. Hanson, 1 Simons 13. Such a statement is not calculated to deceive, but rather to put the opposite party on-his guard. Trower v. Newcome, 8 Meriv. 704. Ignorance, which might have been remedied by due diligence and inquire, is no cause for relief. Penny v. Martin, 4 Johns. Ch. 566. And Lord Loughborough has emphatically said, ignorance is not mistake. If the Rhode Island commissioner acted on such representation, supposing it was made, and if it was false, yet his action is not to be considered as founded in a mistake, as that term is understood in equity ; because the relations of the two commissioners was not such as to induce one to place a known trust in the other ; but the contrary. Fox n. Mackreth, 2 Bro. C. C. 420 ; Smith v. Tank of Scotland, 1 Dow P. C. 272 ; Laidlaw v. Organ, 2 Wheat. 178,195 ; Evans n. Bicknell, 6 Ves. 173, 182-92. Such representation would not vitiate a sale ; d fortiori, not an arbitrament. Fenton v. Browne, 16 Ves. 144 ; 2 Kent’s Lectures (2d ed.) 484-5. If there was no false representation ; if the Rhode Island commissioner believed a fact, the truth of which it was his special duty to investigate, and which he had the means of investigating : and all this appears by the plaintiff’s bill, the judgment and the award was not mistake, but conviction. The plaintiff, by calling it a mistake, cannot change the rule of pleading or of equity ; and it may be treated as a misnomer or a nullity. * *In further considering this allegation of mistake, the great ques- J tions arise, in what relation or capacity did the present plaintiff and respondent stand to each other at that time ? What was the capacity of the commissioners by whom the line was run ? and what is the law of a case so situated ? If the parties now before the court stand here as common suitors, corporations, or individuals, controverting the boundary of an estate, and these commissioners are referees or arbitrators mutually chosen to decide the controversy ; then the rules regulating the proceedings of an arbitrament and award at common law or equity, may well enough be invoked, to determine the question before the court. But in this view, the mistake of law or fact, the wrong judgment and erroneous decision of arbitrators, do not authorize the re-opening and re-examining their proceedings. Knox v. Symonds, 1 Ves. jr. 369 ; South Sea Co. v. Bumsted, 1 Eq. Cas. Abr. 77 ; Shepard n. Merrill, 2 Johns. Ch. 276 ; Delver n. Barnes, 1 Taunt. 48, 51 ; Morgan v. Mather, 2 Ves. jr. 18 ; Jones v. Bennett, 1 Bro. P. C. 528 ; Ching n. Ching, 6 Ves. 282 ; Ansley v. Goff, Kyd on Awards 354 ; Mitf. Plead., by Jeremy, 131-2 ; Lyon n. Richmond, 2 Johns. Ch. 51 ; Kleine n. Catara, 2 Gallis. 61 ; Dick n. Milligan, 2 Ves. 23 ; Young v. Walter, 9 Ibid. 364 ; Wood v. Griffith, 1 Swanst. 55 ; Auriol v. Smith, 1 Turn. & Russ. 126 ; Goodman n. Sayer, 2 Jac. & Walk. 261. These cases go the whole length of establishing the position, that the mistake of the arbitrator on a matter of fact or law referred to him, cannot be inquired into ; or rather, that his judgment and opinion make the rule, and there is no authority above him competent to say that his decision is a mistake. Lord Commissioner Wilson, in one of the cases (Morgan v. Mather), says, “It would be a melancholy thing, if, because we differ from arbitrators in point of fact, we should set aside awards.” And Lord Chancellor Eldon, in Ching v. Ching, states in strong terms, “ if a question of law is referred to an arbitrator, he must decide it; and though he decides wrong, you cannot help it.” The case is different, where arbitrators, conscious of a mista e, 184 223 1840] OF THE UNITED STATES. Rhode Island v. Massachusetts. desire to rectify it ; because, in that position, the supposed decision is not their judgment; and this consideration reconciles' any cases of a seemingly different character from those above cited. This supposed mistake.may, however, even on the strict rules of equity , practice, be passed without notice in the plea, because the allegation of the plaintiff renders it invalid by lapse of time. It is of ancient date, and from that circumstance impossible to be ascertained ; or if ascertained, to have any present operation. Courts of equity, by their own rules, independent of any statute of limitatians, give great effect to length of time ; and they refer frequently to statutes of limitations, for no other purpose than as furnishing a convenient measure for the length of time that ought to operate as a bar in equity to any particular demand. Beckford v. Wade, 17 Ves. 87 ; 2 Sch. & Lef. 626 ; Purcell n. McNamara, *14 Ves. 91 ; Gifford n. Hort, r*224 1 Sch. & Let? 406 ; Bogardusy. Trinity Church, 4 Paige 178. Now, L though the question before the court assumes to be one of pleading, and not of equity, yet it is maintained by the respondent, that a plea is sufficient which leaves no material matter unanswered ; that what is not answered redounds to the benefit of the plaintiff ; and if this mistake is not answered, it may count for him valeat .quantum. But if it is in itself immaterial, and of stale character, it may be passed over 'without notice, because it can in no shape make out a case for the plaintiff. Secondly, the respondent contends, “ that all which the strictest rule of equity pleading requires in this case, is met by the allegation in the plea, that the “ said agreement was fair, legal and binding between the parties, without covin, fraud or misrepresentation, and with a full and equal knowledge of all circumstances by both parties.” This allegation is not now controverted ; and it seems to the respondent’s counsel impossible to say, that with a full and equal knowledge of both parties, their unanimous determination of the question submitted to them could be a mistake relievable in equity. To the form of the plea, no exception is taken by the learned counsel for the plaintiff ; but he contends, that it is novel and insufficient in this, that it pleads possession as a bar, and not title. To’ an action at common law or at equity, where the usual statute of limitations applied, this exception might, if well taken in point of fact, cause some hesitation. But it is not founded in a correct estimation of the character of the plea. The respondent, in his plea in bar, asserts his title to the territory in dispute, and derives it from the joint effect of the agreements of 1710 and 1718, and possession under them for ever. It may be, that under the peculiar circumstances of this case, neither the agreement, if made against the letter of the charters; nor possession, if held adversely and without consent, could sustain the respondent’s claim ; nor is it material to inquire, how this would be, because in truth and fact the title of the respondent rests on neither one of those pillars alone, but-on both ; upholding, strengthening, confirming and supporting each other, and forming together a foundation of irresistible strength. They have not been separated foi’ more than a century ; and ought not to be separated now, in the matter before the court. The true character of the plea is, title derived in part from two sources, and concentrating into one point, that of indefeasible right. 1 Chit. Plead. 512, and the cases there collected. But before this plea can be overruled for any technical exception of this 185 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 224 or any other sort, the court will come to the consideration of a much more important or interesting* question than yet has been presented ; full of novelty and grandeur, and suited to the cause, the parties and the court. The question thus presented is this : By what code of laws, by what forms of proceeding, by what principles of judicial construction, is this controversy to be settled ? It is impossible not to perceive, *that the case before -I the court is not one of ordinary judicial cognisance. It is not the boundary of a farm or a water-lot that is in dispute, but the limit of a nation. It is not a question of ownership in the soil that is presented, but of jurisdiction over a territory and its inhabitants. The parties, too, are not ordinary suitors in a court of justice ; they are states, called by the plaintiff “ sovereign states ;” and standing in that relation to each other, before this high tribunal, which, like the ancient Areopagus, is to adjudicate on the tranquillity and peace of mankind. The court, on solemn consideration, has decided, that on these great interests of territorial jurisdiction and state sovereignty, and on the transfer of the allegiance of 5000 people from one civil government to another, essentially different in many of its institutions, customs and laws, it has a constitutional power to pronounce judgment and decree justice. Be it so : this point is not now to be controverted. But whence does the court derive this power? Not from its ordinary judicial authority; not as a branch of that prerogative by which it is to decide “ cases in law and equity ; ” but by a special provision of the constitution, for the administering of which no forms are provided ; a power above and beyond the reach of any other judicial tribunal in the world ; wholly without precedent in the principles of the civil, the canon, or the common law; and vesting in this high tribunal a discretion and authority, which yet has been limited by no legislation of congress, nor by any rules or acts of its own. In a case where “ the file affords no precedent,” and there is neither common nor statute law to guide the proceedings of the court, the counsel of the respondent respectfully contends, that the case brings with it into this tribunal its own law, in the principles of an elevated and perfect justice, unfettered (as in their nature they are incapable of being fettered) by technical subtleties and petty forms. It stands upon those great and fundamental doctrines of international law, which by the common consent of mankind, are the basis of the intercourse of the civilized world. The high demand of the plaintiff is, that your honors will “restore and confirm to him his violated rights of jurisdiction and sovereignty.” These are rights which no private party ever could possess, and over which no other judicial tribunal ever held jurisdiction. The light which is to guide the conscience of the court in this new field, comes not from books of pleading, or reports of adjudicated cases between citizens or subjects. Such matters belong not to them. It is to be found only in the source of eternal justice, as it comes from intelligence and truth. The case, examined in the character which it thus properly assumes, however important in principle, is one of easy solution. The parties to the suit were once colonies of Great Britain. The relation thus sustained is matter of public history, and familiar to the court. Nominally in a state o vassalage, they were in reality free ; and professing a formal allegiance to * 1 the British crown, actually *assumed and exercised the prerogatives J of sovereignty. They made war and peace ; coined money ; entere 186 OF THE UNITED STATES. Rhode Island v. Massachusetts. 226 1840] into confederacies ; and made treaties of alliance, offensive and defensive, with each other. The proceedings in 1710 terminated in a treaty of boundary, differing in nothing from that of 1783 between Great Britain and the United States, except in extent. No earthly power but the contracting parties ever attempted to interfere with it. It was made by negotiators of each party, with unlimited powers to compromise and settle the boundary. The terms are plain and incontrovertible. The treaty, thus made, established the station of Woodward and Saffrey in latitude 41° 55\ to be three English miles from Charles river, and “ that, agreeable to the letters-patent for the Massachusetts province, it be accompted and allowed on both sides the commencement of the line between Massachusetts and the colony of Rhode Island.” It is obvious, from the whole of the plaintiff’s bill, that this treaty only confirmed and established what had always before been admitted in point of fact. In 1718, another treaty was negotiated, confirming the treaty of 1710, and more fully crrrying it into effect. These titles to the territory, founded on the solemn faith of two formal treaties, under and by force of which the respondent has always held “ unmolested possession,” are presented to this court, thus held over sovereigns, on a question exclusively of international law, as a bar in equity and justice to further molestation and disturbance. Whether, being negotiated between colonies, they are entitled, by the law of nations, to be termed treaties, or only conventions, agreements or pactions, they are by that law equally sacred. Vattel 193, §§ 154-5 ; 227, § 215. Why are they not binding? The suggestion in the plaintiff’s bill, that they were not ratified by the mother country, is a poor attempt at selfstultification. Thep needed no ratification. They were not repudiated by Great Britain ; and like all acts of the colonies, were in force until disallowed. If it were otherwise, it would be more consistent with the high character of our esteemed fellow-citizens of Rhode Island, to imitate the Roman honor of the Counsul Fabius Maximus, who, when the senate would not ratify his agreement with the enemy, sold his private property to make good his word ; or that other Counsul, Postumius, who, because the ^enate would not confirm his treaty with the Samnites, adjudged that he himself and his colleagues should be delivered into their hands. The answer to all this by Rhode Island is, that the negotiators made a mistake. To this the reply is, that it is denied in the plea. But if the allegation be admitted, the mistake of negotiators never was, and on principle never can be, a just cause for violating the stipulations of a treaty. Of this principle, the diplomatic history of the United States is full of examples, and conforms to the diplomacy of civilized Europe. •Possession, or, as it is called in books on international law, usu-caption, for a long period of time, is the best evidence of a national L right. Vattel, 187, 191, &c. The possession of Massachusetts began before Rhode Island was created, and has never been interrupted for a day. This is an insuperable bar to the long-delayed claim of the plaintiff. Of itself, it is invincible. The only answer to it now, is, that it is joined with another title, equally strong, which two are not to be united in the same plea. One reply to this objection has already been given ; but there is a stronger one, m the present aspect of the case. Under the law of nations, forms cannot obstruct justice. There are no technicalities, and no common-law prac- 187 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 227 tice, in a congress of nations ; nor can any be admitted before this august tribunal, sitting under its high constitutional commission, to settle the rights of sovereignties, and to administer justice in political controversies between independent states. Hazard, with whom was Whipple, for the state of Rhode Island.— I had endeavored to prepare myself to argue the questions of law which the state of the pleadings presented to the court; intending to confine myself strictly to those questions, that I might not trespass upon the time oi’ patience of the court. I did not anticipate, for I could not believe, that the defendant’s counsel would, himself, bring into view the merits of the main cause, in a trial upon his own plea in bar to those merits, interposed to prevent their being put in issue or tried. But, finding myself mistaken in this, it becomes necessary for me to pay some attention to the statements made by the counsel, lest he should consider them as being acquiesced in. The facts stated in the plaintiff’s bill, wTe think, constitute a good cause for the relief asked for; and we believe that we can prove those facts. The defendant, while, by his pleading, he excludes those facts from the issue and from trial, himself makes statements which we are not permitted to disprove ; because they also are excluded by him from the issue and from trial. But there is this distinction between the statements made by the respective parties. The defendant has no right to state facts which he refuses to put in issue or have tried. But it would not be departing from the merits of the law question of the sufficiency of the plea in bar, for the plaintiff to show the material facts he would be able to prove, if not precluded by the defects of the plea. At present, however, I ask leave to appeal to facts, only so far as may be necessary to correct the erroneous statements made by the defendant. I understood the counsel to say, that he resorted to the merits of the cause, and to one of the charges in our bill, for the purpose of showing that, at the time of the Roxbury agreement of 1710-11, there was a serious misunderstanding between the parties, as to what was the most southerly part of Charles river, at the distance of three English miles south from * , which, the southern boundary *line of Massachusetts was to be run, 228J eagf. an(j weS[j agreeable to her charter ; Rhode Island claiming to measure from Charles river proper, as it is now known; while Massachusetts insisted upon taking the head of a brook, called Jack’s Pasture brook, or Mill brook, as the most southerly part of Charles river ; and that this misunderstanding led to a compromise which was effected by the agreement at Roxbury. But the charge referred to negatives instead of countenancing this supposition. For it speaks of the pretence about Jack’s Pasture brook, as one that is set up against the present claim of Rhode Island, which was made upon Massachusetts, in 1748 ; and has since been adhered to an prosecuted to the present time. But besides this, it is plain from t e reports of all the committees from 1710, 1711 and 1718 to 1791, that Mi brook was never thought of as in any way affecting the question o t e boundary line, until the idea occurred to, and was for the first time, starte by the Massachusetts committee of that last year, 1791. In the old reports of 1710, 1711 and 1718, no mention is made of any such brook ; and it is 188 1840} OF THE UNITED STATES. 228 Rhode Island v. Massachusetts. not likely that the committees knew of its existence, for they took no view even of Charles river itself. They adopted the supposed Woodward and Saffrey station, because set up (they said) by skilful and approved artists, as far back as 1642 ; and believed to be on the true charter line. The same ground was taken by the Massachusetts committee of 1750, which was appointed, as the report shows, to run the line from the pretended Woodward and Saffrey stake. Not to ascertain what, was Charles river, nor where the true boundary line was or ought to be, nor to run any such line. But, after the Rhode Island committee of 1750 had, by actual view and sur? vey, ascertained the true charter line, and found that the line chalked out by Massachusetts for herself, was really eight, instead of three miles off from Charles river, and gave to that colony a part of the Rhode Island territory, averaging five miles in breadth by twenty-three in length ; it would not do any longei* to rest upon the naked authority of the imaginary Woodward and Saffrey stake, which had been acquiesced in, only because it had been asserted to be on the true line, and nothing to the Contrary was known. The Massachusetts committee of 1791, therefore, cast about for something to give a color of pretence for adhering to the old position, after it had been thus exposed. And in their difficulty, they quit Charles river, and run up into Mill brook, and through Whiting’s pond, two and a half miles off, and then into another brook still farther on. Their report (annexed to the bill) shows this. After mentioning that the Rhode Island committee measured from Charles river as it now is, they say, “ we have inserted our own survey of what we conceive to be the most southern part of Charles river,” &c. And the report then tells how they made the matter out, as has just been related. Here it appears, that the pretence about Mill brook wTas a new one, and their own. They do not speak of it as having ever before been thought of, but as a conception of their own. The allegation, therefore, that there had been a dispute about this *brook, in 1710-11, which had led to a compromise then made, is _ wholly unsupported and unfounded. Indeed, the idea that Charles river ever could have been mistaken for Mill brook, or the brook for the river, or that they ever could have been identified and taken for one and the same, appears to me to be preposterous. Charles river had its present name, the only name it has ever had, even before the first settlement was made by the Massachusetts colony. It was so named in the first charter, by King Charles I. to that colony, in 1629. Whoever first went there and saw it, marked it as one of the great natural boundaries for the colony. A boundary definite and permanent, about which there could be no uncertainty or dispute. Having the broad river before their eyes, although in the wilderness, and not far to be seen, it is not likely that they spied out the particular tributary brook, much less that they groped their way through the bushes and swamps, to see where it came from, that they might honor it, Whiting’s pond, Jack’s Pasture brook, and all, up to the big chesnut tree, with the name of the king. The counsel thinks that he sees evidence of a compromise, in the clause of the Roxbury agreement, leaving five thousand, or the land within one mile north, to the inhabitants of Providence or others. But the committee assigned their own, and a different reason, for that clause ; which was, that some of the inhabitants of Providence had laid out lots there. But it is 189. 229 SUPREME COURT [Jaify Rhode Island v. Massachusetts. not pretended, that any notice was taken of that clause by the government of Rhode Island, or that it was ever acted upon by either government. Again, if the Roxbury committee had been making a compromise instead of ascertaining and fixing the charter line, their report would have shown it, and the grounds of it. They were bound to show this ; for their respective legislatures had a right to know what they did, and why they did it. Now, the report of this committee, on the face of it, negatives the supposition of a compromise. It professes to go by the charters ; and that the station agreed upon was on the true charter line, and no more than three English miles from Charles river. And so the general assembly of Rhode Island was led to believe ; and not that anything was done by way of compromise. A singular compromise it would have been, certainly, had it been so intended ; by which Massachusetts took to herself five miles of the Rhode Island territory, and in consideration thereof, allowed the inhabitants of Providence or others, to retain the land within one mile, but under her jurisdiction. .Whether that territory does or does not justly belong to Rhode Island, by her charter, and equally so by the charter of Massachusetts, is the question which constitutes the merits of the main cause ; and can only be tried when those merits are put in issue. Some further disclosures are made in the report of the Massachusetts committee of 1791, which ought not to be overlooked. Having mentioned, that old Plymouth colony and Rhode Island had the same northern boundary on Massachusetts, the report says : “ The erection of a third govern- , ment, referring to the same bounds *(the Rhode Island charter of J 1663 had then just been granted), seems to have rendered it necessary for Plymouth and Massachusetts to ascertain their bounds.” Accordingly, commissioners were then (in 1664) appointed, “ who fixed upon a large tree, called the Angle tree, as the north line of Plymouth and the south line of Massachusetts,” etc. “ This (says the report) the commissioners apprehend to have been the true and original boundary ; and is three miles south of the most southerly part of Charles river.” They then mention the appointment of commissioners by Massachusetts and Rhode Island, in 1718, “ who fixed a new station, about two miles north of the angle tree,” called Woodward and Saffrey station. “ This commonwealth then lost two miles in width along the northern line of Rhode Island.” Thus, these Massachusetts commissioners themselves falsify the pretended Woodward and Saffrey station, which they call a “ new station,” fixed upon in 1718. And it is a striking fact, that although the settlement with Plymouth was only twenty-two years after the date now assigned to the Woodward and Saffrey station, yet, in that settlement, not a word was said about any such station. The plain inference is, either that none such existed, or that Massachusetts concealed it for the purpose of gaining two miles more upon Plymouth ; and that with a view to fixing a line for Rhode Island, without giving Rhode Island any notice of her doings, or allowing her to be a party to them. The probability is, that no such station was ever heard of, until Colonel Dudley asserted that there was or had been one. The report in my hand states, that no record of it had been preserved. The Massachusetts committee of 1750 say, that they found none ; and it is plain, from all the other reports, that none existed at theii' dates. Even Dudley himself did not pretend that 190 1840] OF THE UNITED STATES. 230 Rhode Island v. Massachusetts. he had ever seen any. And there is not in the whole case, a particle of evidence, that there ever was any such station, in existence. It is necessary that I should now take one more look at this now important Jack’s Pasture, or Mill brook, and notice the use which the Massachusetts committee of 1791 endeavored to make of it; and which the defendant endeavors to make of it, since it was then brought into notice. That committee,in its report, says : “It may not be unnecessary to observe, that at the northern head of what we call Charles river, is a place known by a large chesnut tree ; thence the stream descends to Whiting’s pond, where it forms a considerable lake, and afterwards resuming its proper shape (and now known by the name of Mill river or brook), pursues its course in a northerly direction till it joins that stream, which is known by the name of Charles river.” Here, the committee themselves mark the distinction between Charles river and the brook that runs into it, calling each by its own proper name, by which it had always been known and still is. If all the tributary streams whch find their way into a river are to take its name, and to be considered part of it, before they reach it, and contribute their mites to its * waters, then would there be a mighty change in the „ great natural boundaries, by rivers, between nations and states, and even counties. If the Mississippi should be so measured, it would be a wonderful river to behold ; and many a great state, and parts of states, would disapppear from the map of the United States. But the Missouri is not the Mississippi, nor part of the Mississippi, until it joins it; and if a state should be bounded on a line to be run twenty miles distant from the Mississippi, nobody would dream of measuring the twenty miles from the Missouri as part of the Mississippi. When two rivers or streams come together and form one river, which keeps the name of one of the branches, that name can never be understood to comprehend the other branch, having a distinct name of its own. If, therefore, this Mill brook, instead of being a mere streamlet, creeping into Charles river, was really a principal branch of Charles river, having its own proper name; neither that name nor the brook could ever be confounded with the river or its name, until they were swallowed up in the main river. Here, your honors have the real and only question between the parties, , upon the merits of the cause, under the charters. That question (as first raised by Massachusetts committee of 1791, and never before) is, whether the first charter granted to Massachusetts, by King Charles I., in 1629, by the name “ Charles river,” meant Charles river proper, as it was then and ever since has been known and called ; or, besides this, meant also Jack’s Pasture, or Mill brook, running from near a large chesnut tree into a pond called Whiting’s pond, two and a half miles off from Charles river, meant, also the said Whiting’s pond ; and moreover, another brook running out of the pond, and finally getting into Charles river. This, I repeat, is the only question upon the merits, as the defendant himself has made it. If the ' defendant is willing to have a trial upon the merits, let him put them in issue, or allow us to put them in issue. Both parties would then have an opportunity to produce their evidence applicable to that question. Among other evidence, we have in our possession certified copies of a large number of original grants, from 1659 to 1698, to individuals, of lands, bounded, some on Charles river, and some on Mill brook, or Jack’s Past ure brook; 191 231 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. all of them showing, that the river and brook were never confounded together, but were always distinguished by the same separate names they now are. We have also much*other material evidence upon that question of the merits. But your honors cannot now hear any of it, because that question is not in issue, or on trial. The defendant virtually acknowledges the original title of Rhode Island, by setting up a supposed cession or grant from her, in bar of that title. Let him, then, present that bar matter and our reply to it, in such a manner that they can be fairly tried. Let him not deprive us of a fair trial upon one question or the other, either upon the merits, or the bar, or both ; as he had it in his power to do under the 23d rule of practice established by the court; allowing a defendant to have the , benefit *of his bar matter, under his answer to the merits, as fully *2321 ’ J as he can by pleading it specially. I will now proceed to considei* the question of the sufficiency of the defendant’s plea as a bar. This plea is in bar to the whole bill. The requisites of such a plea being familiar to the court, we have only to inquire whether the present plea possesses those requisites. Our objections to it, I will endeavor to bring under one or other of the following heads : 1. The matter of the plea does not constitute a bar to the relief prayed for. 2. The plea does not contain the statements of facts, and the averments necessary to a good plea in bar. 3. The plea is not accompanied by such an answer as the rules of equity require to support such a plea, and to give to the plaintiff the benefit of the material facts charged in the bill in avoidance of the plea. The plea commences with relating, than in the year 1642, a station was erected and fixed at a point then taken and believed to be on the true boundary line between the two states. So mere a story as this, would be thought too loose and light for the use of a common annalist, whose work is very unlike that of a special pleader. A station was taken, it is said ; and we are left to conjecture, that it was erected by one Woodward and one Saif re y, by its being called the Woodward and Saflfrey station ; who in another place are called skilful and approved artists. But the Massachusetts historian, Dr. Douglass, tells us, that they were two illiterate and obscure sailors, and would never have been heard of, but for the controversies between Massachusetts and Connecticut and Rhode Island. There is no report or statement from Woodward and Saffrey themselves of their doings, and no record of any. The plea says, that the station then set up was believed to be on the true line. This mode of expression would hardly have been used, if any actual survey had been made, and the real charter line ascertained by actual measurement. The plea avoids stating that Woodward and Saffrey were employed by Massachusetts, or authorized by anybody. If they acted under the orders of the Massachusetts government (which I do not doubt, if they acted at all ; which I do doubt, because I see no reason for believing it), then, what was done was the ex parte act of Massachusetts, and not binding upon anybody. It is not pretended, that any notice was taken of Rhode Island in what was done. Indeed, it was only about six years before that date, that Roger Williams and his companions, having been exiled from Massachusetts for conscience’ sake, too refuge in Providence. It is a matter of history, that neither Rhode I®^® » Connecticut, New Hampshire, Maine nor Plymouth, were acknowledged y 192 1840] OF THE UNITED STATES. 282 Rhode Island v. Massachusetts. Massachusetts, at that day, as possessing any power independent of herself. At that early period, she assumed to be mistress over all the surrounding territories ; and she drew her lines and erected her stations as she pleased, without consulting her feeble neighbors, and in defiance of them. And that she most wantonly encroached upon them all, is a matter *not only rs(e of history, but of judicial record. It seems to me, that the defendant L can add no strength to his plea in bar, by basing it upon his own ex parte act, and insisting upon that act as the source and foundation of all the subsequent proceedings which he sets up as matters in bar, to a claim founded upon his own charter as well as upon the charter of a sister state. The plea proceeds to state, that, by virtue of an act of the general assembly of Rhode Island, passed the 30th of July 1709, Major Joseph Jenckes was appointed to meet Colonel Dudley, who was appointed by Massachusetts, and to settle the misunderstanding about the line, &c. : il provided, it be within six months after passing of the act of thé said assembly that “said Jenckes and Dudley, on the. 19th day of January, then next ensuing, and within six months from the passing of said act,” did meet and conclude the following agreement, &c. Here is an error in the reckoning of time, apparent on the paper. The recited agreement is dated, “ Roxbury, January 19th, 1710-11,” which was eighteen months instead of six months, after the passing of the act referred to. The mistake of defendant probably arose from not noticing the double dating practised at that day, and including both the old and the new style. By the old style the year commenced and ended on the 25th of March. So that the same month of January, which was part of the year 1710, by the old style, was the commencement of the year 1711, by the new. But, take it either way, the month of July 1709, was eighteen months prior to the date of the instrument. This being the case, the agreement of Jenckes and Dudley was null and void : Jenckes’ authority to act having expired a year before he did act. The case would have been altered, had the two governments afterwards confirmed the instrument. But no such thing was done by either government, and is not alleged to have been. This instrument, therefore, is no bar to the bill. But, as every subsequent proceeding set up in the plea is therein averred to have been based upon this Roxbury agreement, and taken m pursuance of it ; and as it is from and under and by virtue of this agreement, that defendant claims to have held possession ; I will, with permission, make some remarks upon it, for the purpose of showing its character, and the manner in which it was obtained. It is stated, that the committee met at Roxbury, and then and there debated the challenges concerning the several charters, &c., relating to the line between the two colonies. This reference to the charters makes them part of the instrument as much as if they had been annexed to it. Now, hy the Massachusetts charter, her southern boundary line was to be three English miles south of the most southerly part of Charles river. Thus, the piain duty of the committee was to go to Charles river, ascertain the most southerly part of it, measure off the three miles south, and thence run the me east and west, or erect a monument from which the line might be run. nt the committee performed no part of this duty, and took no single step y which the object of their appointment could be effected. *They ook no view of Charles river, made no survey or measurement, nor •- 14 Pet.—13 193 234 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. any attempt to ascertain the charter line. On the contrary, Jenckes went to Roxbury, two miles out of Boston, and thirty or forty miles from the place where his business called him ; and there, at the door of Governor Dudley, they debated the challenges, as they call it. This is easily accounted for, and can be accounted for in one way only. The two committees and their respective colonies were very differently situated. It was plainly for the interest of Rhode Island, to have the true charter line ascertained and established, and not to be tied down to the ex parte doings of Massachusetts-But Massachusetts had already carved for herself, and was desirous only of keeping what she had taken ; and it was, therefore, the purpose of Dudley,, her commissioner and governor, to draw Jenckes away from Charles river,, and to avoid having any inspection or actual survey taken, by which, at the same time that the true charter line was ascertained, it would be made to' appear that Massachusetts had encroached largely upon Rhode Island. And Dudley gained his point, and brought Jenckes to join with him in saying and agreeing that “the stake set up by Nathaniel Woodward and Solomon Saflfrey, skilful and approved artists, in 1642, and since often renewed, &c., being three English miles distant from Charles river, agreeably to the letterspatent for the Massachusetts province, &c., should be the commencement of the line, &c.” Can it be doubted, who dictated this instrument, and who drew it ? These representations of the doings of Massachusetts agents were palpably made by Dudley, the then Massachusetts agent, to Jenckes. Jenckes did not know that there ever were such men as Nathaniel Woodward or Solomon Saflfrey ; or that they were skilful and approved artists or that they ever set up any stake anywhere ; or that it had been often or ever renewed. He did not even know that any such stake then existed, much less that it was three English miles, and no more, from Charles river. Yet, all this Dudley induced him to subscribe to. If it was allowable here, we could show that the very same language used in this report about Woodward and Saflfrey, and their skill, and their station, &c., was Dudley’s language, used in a communication from him made four years before. And the very truth is, that Jenckes’s appointment was procured by Dudley himself, as appears by the vote itself, passed by the general assembly in July, and referred to at the commencement of this plea, as giving Jenckes authority to act. Which vote recites, that, “ whereas, the assembly has been credibly informed that his excellency Colonel Dudley has declared, that if Major Joseph Jenckes was empowered thereto, he doubted not but that they two should settle,” &c. The general assembly did not foresee the use that Colonel Dudley was to make of his Major Jenckes. I do not forget, that we are now trying the sufficiency, and not the truth of defendant’s plea. But the averments in the plea cannot cover or protect such marks or evidences of mistake, misconduct, undue influence, &c., as * 1 appear upon the face of the instrument *itself, pleaded in bar; for -* these go to show the invalidity of the bar. There are other sue marks on this instrument. The line, it says, is to be run “ as is decipherec in a plan or tract by Nathaniel Woodward and Solomon Saflfrey, now s to us, and is now remaining on record in the Massachusetts government. t is a trifling circumstances to remark upon ; but it is now acknowledge , t a the plan or tract spoken of was never on record in Massachusetts, ot than as it was deposited in the secretary’s office ; and if Dudley then a i 194 1840] OF THE UNITED STATES. 235 Rhode Island v. Massachusetts. at Roxbury, it was not then remaining on record. But what had Jenckes to do with this ex parte, plan, any more than with the ex parte station of Woodward and Saffrey ; of neither of which had he any knowledge beyond the mere assertion of the adverse party. And let me ask, why was not that plan or tract, or a copy of it, annexed to the instrument of which it was made a part, and which, without it, was a nullity, and could not be carried into effect, any more than a bill of sale of certain articles enumerated in an inventory not annexed or identified ? And where is that pretended plan now, that it is not produced here ? The counsel says, that it is on record, or on file; and will be produced on proper occasion. And is not this the proper occasion, when the validity of the instrument, of which the plan is made part, is on trial; and that instrument cannot be understood without the plan it refers to and rests upon ? The counsel have procured and produced a recent plat, to show the importance of Mill brook. Can it be believed, that the pretended Woodward and Saffrey plan would not be produced, if any thing favorable was to be found in it ? I have no doubt, that there was, at some time dr other, and now is, a scrawl of some kind, which has been called the Woodward and Saffrey plan or tract. But I am confident, that, whenever it makes its appearance, it will be seen, that the person or persons who made it, whether Woodward and Saffrey, or some body else, long afterwards, were grossly ignorant; and no glimpse of light can be obtained from it, to aid in ascertaining the line between the parties. Lastly, the committee agree that persons should be appointed by the governor and counsel of each state, to show the ancient line, &c. Here we see Governor Dudley again. Massachusetts had, and still has, a distinct political body, so entitled, and with the’ power of appointment; but there was no such body in Rhode Island. Jenckes knew this, and yet he repeated after Dudley whatever was dictated to him. But no such committee was ever appointed by either government; and is not alleged to have been. Next, the plea recites parts of votes passed by the two legislatures, in 1717 and 1718, appointing another committee to settle the line, and then sets out the agreement made by those committees at Rehoboth, October 22d, 1718. And the plea avers, that those committees were appointed, and the agreement made, “ in pursuance of” the Roxbury agreement of 1710—11, which I have just been examining. It appears, that both legislatures, by their first votes, did restrict *their respective committees to the Box-bury agreement. But the Rhode Island legislature, by its subsequent b vote, passed June 17th, 1718, expressly disowned the Roxbury doings, and gave its committee unrestricted power to settle the line, as near as might be, according to the charter ; and. the Massachusetts legislature, by its second vote, gave the same power to her committee. And thus the Roxbury agreement, which was void in itself from the beginning, was abandoned by both parties. The Rehoboth agreement (as it is called, from the place where it was made) is in eight and a half lines, with a preamble ; and the whole of it is, that the line should be run from the Woodward and Saffrey stake, so as to e at Connecticut river two and a half miles south of a due west line. This agreement is liable to some of the same material objections that have been made to the Roxbury agreement. The committee paid no regard to the 195 236 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. charters, nor made any attempt to ascertain the true charter line. They arbitrarily adopted the pretended Woodward and Saffrey stake, wherever it might be ; without knowing that there was any such stake, or going to see either that or Charles river. The plea then alleges, that the general assembly of Rhode Island accepted this Rehoboth agreement, and ordered it to be recorded ; and thereby ratified and confirmed it. I will consider, presently, what kind of ratification this was. The plea now introduces the last instrument upon which it relies, and which has been called the report of the running committee. That committee consisted of four persons, who say, in theii’ report, that they were appointed by the Rehoboth committee to run the line by them agreed upon. This is the only evidence there is of their appointment by anybody. The Rehoboth report speaks of no such committee ; and none such was appointed by either colony. Whatever their authority was, they undertook to run a line, and say, in their report of it, that “ having met at the stake of Nathaniel Woodward and Solomon Saffrey,” &c. This was speaking loosely. The stake set up by Woodward and Saffrey, in 1642 (if ever set up), certainly was not in existence in 1719. Their meaning probably was, that the stake they met at was where the Woodward and Saffrey stake had been. But how did they know this ; and what authority had they for saying it ? No doubt, there was a stake where they met, for they would not have been carried there, without a stake for them to start from. But who set up that stake, and where was it set up ? Neither the Roxbury committee of 1710-11, nor the Rehoboth committee of 1718, set up any stake or monument. They only speak of a stake said to have been set up by Nathaniel Woodward and Solomon Saffrey, in 1642, and since often renewed, in latitude 41° 55' (says the first committee), but they saw no such stake, nor knew that any such existed. Thus, this running committee had nothing to go by. They had not the plan or tract of Woodward and Saffrey, nor did they take the latitude 41° 55', on which the Roxbury report said the Woodward and Saffrey stake was set up ; for that latitude would, in fact, have carried *2^71 *^^era many miles off from the stake where they met; which (as J appears from the line described by the committee) was in latitude 42° 3'. By their own showing, the running committee had nd power to fix any station, or set up any stake themselves. How, then, did they know that the stake they saw was where the Woodward and Saffrey stake had been? They could only believe from what was told them ; and that, in all probability, by persons interested, and who had themselves set up the stake they wished the line to be run from. It was the tradition in that quarter, for many years, and derived from the old men of the day, that the pretended stake was a bean pole, stuck up by John Chandler, one of the running committee. At all events, that committee had no right to hear evidence, for they had no power to decide. Thus, from all that appears, there is as good cause for believing that the stake from which these four men started, was anywhere else, as that it was at or near the place of the Woodward and Saffrey stake, if there ever was any. For myself, I can see nothing in all those proceedings, from beginning to end, but imposition, and the exercise of undue influence over the Rhode Island committees. The plea then alleges, that the said report or return of the running committee “ was approved by the general assembly of the said colony of Rhode 196 1840] OF THE UNITED STATES. 237 Rhode Island v. Massachusetts. Island,” &c. This is copied from our original bill ; but in the amended bill (page 36), those words are stricken out, being incorrect, and the words, “ the above return is accepted by the assembly—a true copy, extracted from the public records of the colony of Rhode Island, examined by T. Ward, secretary,” inserted. That being the minute appearing on the document itself. I have no desire to be critical, but it may be observed, that there is no vote of acceptance. A secretary or clerk can only certify to a copy of a vote. He has no authority to certify that such or such a thing was done, or vote passed. The record is the only evidence of votes ; and certified copies are the evidences of the record. But what does it amount to, if there were such a vote ? It was no more than the ordinary form on such occasions. When a legislative committee makes a report, something is to be done with it ; and the usual course is, to receive or accept it ; and then it is laid on the table, or ordered on file, or taken up and acted upon. The same course was pursued in the legislature of Massachusetts, as appears by the secretary’s minutes, on some of the reports of their committees. But the report so received or accepted is nothing of itself, until some legislative act is passed upon the subject of it. But the legislature of Rhode Island never passed any act confirming the doings of either of those committees, or establishing either of the lines (for they all differ) spoken of by them. Nor did the legislature of Massachusetts ever pass any such act ; and it is not alleged that she did. And if one of the governments had confirmed those proceedings, by ever so solemn an act of ratification, *the other could take no advantage of it, without passing a similar and mutual act of confirmation on her part. *- But as there was no such ratification by either government, it seems, that the defendant would now set up the doings of the committees, as binding and absolute in themselves, without any legislative acts confirming them ; thus making the committees independent of, and paramount to, the legislatures which created them. This is novel, and I should think, dangerous doctrine. If this is true, the moment the legislature passed a vote appointing a committee to perform a certain service, it parted with all power over the subject; and could neither revoke the appointment, nor vary, nor in any way touch, the powers of that committee. This was not the understanding of either legislature, at the time of passing the votes and appointing their committees, as has already been shown. The boundary line between Massachusetts and Connecticut (which by their charters was precisely the same as ours) was agreed upon by a joint committee, inl713 ; and the doings of that committee were ratified and confirmed by mutual acts passed by both legislatures ; and it was those legislative acts of confirmation, and not the report of the committee, upon which Massachusetts whol y relied, in their subsequent dispute respecting the line. And even those solemn acts of ratification were set aside for the same causes and grounds which we are now presenting to the court. This, as I before remarked, is new ground, even for Massachusetts to take. For her own committee of 1791 (whose report, jointly with the Rhode Island committee, is copied into our bill, and whose separate report to their own legislature is annexed to the bill, and has already been referred to), that committee, remarking that the proceedings of the former committees had not been confirmed by either government, joined with 'the Rhode Island committee in 197 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 238 recommending to their respective governments “ to submit the matter in dispute to indifferent men of the neighboring states ; or to unite in an application to congress to settle the same, agreeably to the respective charters, and the constitution of the United States.” I have thus far endeavored to show from the plea itself, that the matter contained in it does not constitute a bar to the plaintiff’s bill; and will now, with permission, proceed to the two other general grounds of objection, which, as they are closely connected, I will consider together. They are, 1st, That the plea does not contain the statements of facts, nor the averments necessary to a good plea in bar ; and 2d, That it is not accompained by such an answer as the rules of equity require to support such a plea, _ and to give the plaintiff the benefit of the matter charged in the bill in avoidance of the plea. I wish it to be understood, that we make no objections to the mere form either of the plea or answer. Our objections are to the merits and substance of them. And we contend, that not a single material fact charged in the bill, in avoidance of the bar matter pleaded, is *2391 negatived or met by any averment in the plea, or by *the answer. -J So that, as the plea and answer now stand, the defendant would avail himself of his legal defence, while he would exclude the plaintiff from all the equitable facts and circumstances charged in the bill in avoidance of the bar ; which, by the rules of equity, a defendant is not permitted to do. In avoidance of the two agreements pleaded in bar, viz., that made at . Roxbury at 1710-11, and that at Rehoboth in 1718, the bill charges, that the Rhode Island committees who signed those instruments were misled by representations made to them by the Massachusetts committees, and acted under the mistaken belief that the pretended Woodward and Saffrey station was really on the true charter line, and was no more than three English miles from the most southerly part of Charles river ; and that under this erroneous belief, they signed the agreements ; which, if confirmed, would transfer to Massachusetts a large portion of territory justly belonging to Rhode Island, and the jurisdiction over it. This is the general charge ; and in support and proof of it, the bill charges the following facts, viz., that by actual survey and measurement, it is proved, that the line alleged to have been run according to those agreements is near eight miles, instead of three miles, distant from the most southerly part of Charles river, and takes from Rhode Island a tract of territory four miles and fifty-six rods wide on the east, and over five miles on the west end ; and in length, twenty-three miles ; that said line does not conform to the line designated in either of said agreements, it being in latitude 42° .3' N., whereas, the supposed Woodward and Saffrey station is alleged to have been in latitude 41° 55'; that neither of said committees made any survey or measurement, nor any attempt to ascertain the true charter line ; that, at the dates of said agreements, there was no such station as the pretended Woodward and Saffrey station, nor any evidence that there ever had been any ; that said committees saw no such station, and took no step to ascertain whether there then was or ever had been any, or how far it was from Charles river, if it i exist. It was the duty of the plea to have met and negatived the main c arge, by direct and positive averments ; but there is no such averment to . e found in the plea. The principal averment is, that there was no covin, 198 1840] OF THE UNITED STATES. Rhode Island v. Massachusetts. 239 fraud or misrepresentation. The bill does not charge covin or fraud, although it might justly have done so. The averment of no misrepresentation is evasive, and no direct negative ; for the defendant might admit that such representations were made as the bill charges, and yet might consistently aver that no misrepresentations were made, for he might say they were true. But it is of little importance from what source the committees received their impressions ; it is enough, that the bill charges that they acted under an erroneous belief ; and this charge is not touched by any of the averments. The other averments are, that the whole merits of the plaintiff’s claim were heard and decided upon by the committees; that the agreements were fair, legal and binding, and made with a full and equal knowledge of all circumstances by both parties. All *the first part [*240 of this is mere opinion and assertion. A man charged with a breach L of contract, might as well reply that he was an honest man, and a man of fair standing. The sweeping allegation that the agreements were made with a full and equal knowledge of all circumstances, has none of the qualities of an averment required in pleading. It is no traverse of any specific charge or fact. No fact charged, however important, could be put in issue under it. Yet that is the whole object of averments in the plea ; which are, therefore, required to be direct and positive, not evasive, or by way of opinion, inference or implication, which it is the province of the court to deal with, not the party. The bill also charges that the legislature of Rhode Island was deceived, and led to believe that its committees had ascertained the true charter line ; that there really was such a station as the Woodward and Saffrey station, and that it was on the true line, and no more than three miles from Charles river. This charge is most important, because the legislature, if it had not itself been deceived, could have corrected the errors of its committees. Now, there is not a word in the plea or answer that in any way meets, much less negatives, this main charge ; which goes to the roots of the pretended agreements. And the defendant might as well have put no averments at all into his plea, and accompanied it with no answer ; and still have insisted upon having the pretended agreements sanctioned and allowed to be valid, without any examination whatever. Will equity countenance any such practice ? It is observable, that the Roxbury agreement is so framed, and contains such statements, as could not fail to mislead and deceive the general assembly of Rhode Island. The committee professed to go by the charters and letters-patent of the two colonies, as the legislature of Rhode Island expected they would, and supposed they had done. The committee then adopt the supposed Woodward and Saffrey stake, ‘‘being (they say) three English miles distant from the southernmost part of Charles river, agreeably to the letters-patent for the Massachusetts province.” It cannot be averred here, that Governor Dudley had no hand in making this representation. And how was it possible for the legislature of Rhode Island to avoid being deceived by this representation ? So much for the averments in the plea. And now, for the accompanying answer if that can be called an answer, which is a mere repetition of t e averments in the plea, without the slightest addition to them. Can such an answer be said to support the plea, as the rule in equity requires at it should ? But to support the plea, is not the only office of the answer. 199 240 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. It must meet and respond, particularly and specifically, to every fact and equitable circumstance charged in the bill, in proof of the main charge in avoidance of the bar matter pleaded ; to the end that the plaintiff may have the benefit, and avail himself of his equitable defence against the bar. If the answer cannot do this with truth or safety, then the plea-is not only a defective and insufficient one, but is an improper plea to be *used. J May I not correctly say, that this plea is not supported by such an answer as the rules of equity require ; and without which the plea cannot be sustained ? Again, the bill charges, that the agreements now set up were never consented to by the king of England ; without which, at that day, the colonies had no power to make any compact affecting theii’ territories or jurisdiction. This being the case, it was necessary for the plea to show the authority of the two colonies to act, as it was to show the authority by which their committees acted. This same objection was made by the state of Connecticut, in her controversy with Massachusetts about their boundary line ; and made too against the validity of the solemn acts of the two legislatures. And how was it met by Massachusetts? Her reply was, that her government, by its charter, w’as required to send all its public acts to the king, for his approbation ; and that such of them as were not disallowed within a certain period, were to be considered as allowed. It was, therefore, inferred by Massachusetts, that this course must have been taken upon the occasion of her compact with Connecticut ; and that that compact had been tacitly consented to by the king. In the case of Poole v. Fleeger, recently decided in this court, there was a formal compact between the states of Kentucky and Tennessee, settling a boundary line between them ; which compact was formally ratified by both governments, and consented to by congress. The court said in that case : “It is part of the general right of sovereignty, belonging to independent nations, to establish and fix disputed boundaries. This right is recognised by the constitution'of the United States, with the limitation or restriction requiring the consent of congress.” As, therefore, the consent of congress is necessary to the validity of such a compact, even at the present day, it follows, that a party who pleads such a compact in bar to a suit, must show its validity, by stating the consent of congress to it. Butin the present case, the bill itself charges the defect in the Roxbury and Rehoboth agreements ; and the charge ought to have been directly met and responded to by the plea and answer. It is for the purpose of showing the insufficiency of the plea, in this respect, that I mention the charge contained in the bill ; and not for the purpose of discussing here the objection itself to the two agreements, which would not now be proper. But the plaintiff has a right to be heard upon that question, at a proper time, and therefore, the defendant was bound to respond to the charge. The plea concludes by stating, in substance, that the defendant doth plead the said agreement of 1710-11, and the said agreement of 1718, “and unmolested possession according to the same, from the date of the said agreements, in bar to the whole bill,” &c. The opening counsel for the defendant has considered the alleged possession as constituting a distinct bai of itself. If this is the meaning of the plea, it is pleading double ; which is a fatal objection to any such plea. The passages, therefore, read by the counsel from Vattel, to show that prescription may give a good title, ar® 200 1840] *242 OF THE UNITED STATES. Rhode Island v. Massachusetts. *out of place; supposing that the counsel did not mean to spoil his own plea. To be sure, he ought to understand his own plea best; but I suppose that long possession under the two agreements, is alleged in the plea, for the purpose of aiding and protecting them from inquiry into defects in their origin. Long possession is frequently used for this purpose. But this plea alleges long possession only. It alleges no acquiescence in or assent to that possession, without which mere naked possession is of no avail; for it furnishes no inference of the fairness of the original transaction sought to be sustained. This may be illustrated by a very common case. A man obtains a conveyance of an estate, by imposition or some unjustifiable means, which, in equity, vitiates and annuls the transaction ; and, having gotten possession, he retains it for many years. But, in the meantime, the injured party, having discovered the imposition or mistake, and the injury done him, demands restitution from the wrongdoer, who holds many conferences with him ; but evades the claim and avoids any inquiry into the justice of it, continues to hold possession. It is plain, that in such a case, the continued possession of the wrongdoer, instead of bettering the original transaction, aggravates its injustice. It is laid down by Vattel, page 192, that even prescription or usucaption, cannot be set up against a party who is not in a condition to enforce his rights. This is precisely the plaintiff’s case. And this case is clearly and fully made out by our bill. And if the defendant had given us a sufficient plea and answer, so that we might have taken issue, the question of her alleged possession might have been tried, and we should have had an opportunity to rebut and avoid the alleged possession, by producing the facts stated in the bill, and other evidence, proving that the defendant has had no such possession as can give any aid or countenance to the two agreements which she relies upon, and which we impeach. But no such trial upon the question of possession can be had, under the present question as to the sufficiency of the plea; and I can only refer to the facts charged in the bill, for the purpose of showing the insufficiency of the plea in not having met and responded to those facts, so that they might have been put in issue and tried. The bill, after pointing out the imposition or erroneous belief under which the Roxbury and Rehoboth agreements had been signed by the committees, states, that the error or mistake, thus committed, and the wrong thereby done to Rhode Island, were not discovered until an actual survey of the premises was made in 1749-50, by which the true charter line was ascertained. That from that time, Rhode Island never ceased to assert her claim, or to deny the right of Massachusetts to the possession of the territory of which she had wrongfully gotten possession. That the Rhode Island legislature had, time after time, appointed, and continued, committees, for the purpose of effecting a settlement of the dispute with Massachusetts, and had constantly urged that colony, and afterwards state, to appoint committees on her part, for the same purpose ; which had been done by Massachusetts, and many conferences *upon the subject of r*24$ the existing misunderstanding had been held by those committees L from the year 1750, and continued to be held up to a recent date; but without producing any good effect; except in the year 1791, when thecom-unttees from the two states, net being able to agree upon the main subject, id agree to recommend to their respective governments to refer the matter 201 243 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. in dispute to indifferent men of other states, or to congress, to settle the same agreeable to the respective charters ; the Massachusetts committee being satisfied that nothing binding on either party had as yet been done. That some time after the committees appointed by the two colonies in 1749-50, had failed to effect a settlement, Rhode Island prepared to prosecute her claim before the king in council. “ But that, being then thinly populated, and her resources very limited, and the war with France having soon after broken out, by which her attention was directed to other objects, and her resources exhausted ; her endeavors to obtain a settlement of the line according to her charter, were ineffectual; and that her efforts to effect that object were again suspended by the war of the revolution. But that, towards the end of that war, in 1782, upon the petition of a large number of the inhabitants residing on the disputed tetritory, claiming of right to belong to Rhode Island, the legislature again appointed a committee who reported in favor of said claim.” Besides these, there are other material facts and circumstances to the same effect, which, whenever the question of the alleged possession by Massachusetts shall be tried, will conclusively prove, that from the year 1748-49, when the error in the boundary line was first discovered, Rhode Island has never, for a moment, acquiesced in the justice of that possession, but has constantly denied it, and demanded restitution ; and that the character of that possession has not been such as to give any consistency or validity to the pretended agreements of 1710-11, and 1718, or either of them. But as that question of possession is not now on trial, I presume, that the references I have made to the charges in the bill, upon this head, are enough to support our objection.to the plea and answer for insufficiency, in not having in any way negatived, met or responded to a single one of those charges. I may, however, be allowed to remark, that, undoubtedly, Rhode Island was always very reluctant to engage in a conflict with her powerful neighbor. And it is apparent, that the part which Massachusetts herself acted, from the time that the error was discovered in 1749, was the chief cause that Rhode Island did not sooner adopt stronger measures enforcing her right. For, the committees which Massachusetts continued to appoint and keep up, although they parried the claim of Rhode Island, yet, by temporizing with her committees, and leading them along, from period to period, encouraged the expectation that an equitable settlement might finally be effected. And certainly, Rhode Island had a right to indulge in. this expectation, particularly, after the year 1791, when the Massachusetts com-* mittee *itself recommended the appointment of impartial referees -J t0 settle the line according to the charters ; which they were satisfied had not been done, but ought to be done. It ought to be recollected also, that, during all that period, the same controversy existed, and was carried on, between Massachusetts and Connecticut. The two complainant states co-operated together, particularly in the measures taken to bring their complaints before the king in council. Connecticut was the larger and more influential colony ; and Rhode Island very properly expected her to take the lead in the common cause, relying upon her efforts to bring Massachusetts to justice. But during all that peiio , there was never any acquiescence by Rhode Island, any more than by Connecticut, in the wrongful possession of Massachusetts; both colonies or states, 202 1840] OF THE UNITED STATES. 244 Rhode Island v. Massachusetts. equally and constantly protested against that wrongful possession, and demanded restitution. It was not until the year 1804, that Connecticut brought Massachusetts to terms ; and certainly, when that was done, Rhode Island had good reason to hope that her claims (resting upon her same basis as those of Connecticut) would also be listened to, and her rights respected by Massachusetts. And accordingly, committees were soon afterwards appointed by the two states to make a settlement between them. And those committees continued their conferences, until no long time before the commencement of this suit. Clearly, Massachusetts had as good a pretence for setting up her long possession against Connecticut, as she can now have for setting it up against Rhode Island, and better ; for the agreement made in 1713, by their committees, adopting the same pretended Woodward and Saffrey station, as did the Roxbury committees in our case ; that agreement was confirmed and -ratified by solemn acts of both governments. But Connecticut would not consent, that a possession, wrongful in its commencement and continuance, and always protested against, should be used to support an agreement obtained by unfair means, and under which that possession had been unjustly -held. And Massachusetts acquiesced in the objection, and abandoned the pretence of possession. Can she now revive the same pretence against the other copartner state; with whom she had, at the same time, precisely the -same controversy. The counsel has dwelt and labored upon this allegation of possession, as if the mere fact of possession was the only thing he had to establish. And has read a part of our bill to show that that fact is admitted by thé plaintiff ; and this, he thinks, settles the whole matter ; keeping out of sight the facts charged by way of replication, in the bill (in conformity to the practice in equity), in avoidance of the admitted possession, showing that the alleged possession was unfairly obtained, had been unjustly continued, and always protested against. This is the incurable defect of the plea itself. It tenders no issue upon the only facts upon which an issue can be taken. The fact of possession being admitted by the replication, makes no part of the issue to be joined. The facts charged in avoidance *of that possession, are the only facts to be put in issue, so far as possession makes part of the bar matter pleaded. As well might a defendant who pleads a release in bar, to which the plaintiff replies, admitting the execution of the release, but charging that it had been obtained by fraud ; as well might the defendant refuse to have any trial upon the charge of fraud, and still insist upon -his naked release, because the execution of it is admitted. It has been asserted, that Rhode Island was never, for a single moment, in possession of the territory in question. This is saying too much. When t e Rhode Islanders were driven from Massachusetts, becease they were aptists and Quakers, they purchased of the native proprietors, and honestly paid for, that part of the Narragansets’ country which was beyond the juris- ' lotion of the hostile colony ; and there they colonized and took possession -the' ° °°Un^ry ’n 1635-36. In 1643, they obtained their first charter, and " eir last in 1663 ; confirming their purchase from the native proprietors, _ ao erecting them into a colony, bounded north on the charter line of Mass- -w’13 Se^S c?^ony- If certain persons (whatever their names) did go into the erness in 1642, and did, somewhere or other, set up a stake, and leave s anding, that act did not interfere with the rights of anybody. If the 203 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 245 Massachusetts colony had any agency in that (which nohow appears, nor is alleged in the plea), she certainly did not pretend to take any possession adversely to the king, or the king’s grant to Rhode Island. Rhode Island, therefore, was clearly in possession, at least down to 1710-11, the date of the agreement between Dudley and Jenckes; as to the possession, which Massachusetts then obtained, how she obtained and how retained it, I have already sufficiently commented upon, more than sufficiently, for the purposes of this argument upon the sufficiency of the defendant’s plea. Sundry passages have been read from Vattel, to show the sacred character of treaties and compacts between sovereigns. Who ever doubted so self-evident a proposition ? But what are those treaties and compacts which are so obligatory ? They are such as are just and unimpeachable; executed fairly and freely; without suggest™ falsi, or suppress™ veri ; free from the charge of imposition, or undue practice, or unjust advantage. Is there anything to be found in Vattel, that enjoins the observance of a compact of a different character from this; much more the confirmation of such a compact, when made by agents acting under a gross mistake .of facts ? I am unable to comprehend the doctrine which would apply different rules and principles of justice to the conduct of sovereigns, and to that of individuals. Justice herself knows no such distinction. The counsel has intimated, that the habits and feelings of the inhabitants of that district, would revolt at being included within the limits of Rhode Island. He speaks without authority, and is wholly mistaken. Some years ago a large and respectable portion of those inhabitants, in a memorial to * , the legislature of Rhode *Island, claimed to belong to that state ; J and solicited the legislature to enforce their right. I am fully warranted in saying, that the mass of those inhabitants still entertain the same opinions and wishes. Webster, for the State of Massachusetts.—The colonial grant of James I. of England, of the Plymouth colony, was on the 3d of November 1621. The grant was for all the lands lying between the fortieth and forty-eighth degrees of north latitude, extending westwardly from the ocean. On the 19th of March 1628, the council of Plymouth made a grant to the Massachusetts settlers, of the territory destined to form the colony of Massachusetts. This grant was of all the lands lying between the Merrimac river on the north, and three miles south of Charles river, from the Atlantic or Western ocean, on the east part, to the South sea, on the west part. . This grant was confirmed by Charles I. The description of the territory is first found in the grant of the council of Plymouth to Massachusetts. Charles river was so called after 1625, and before 1628. At that time, there was not a white man in Massachusetts. It is a very important fact, and lies at the foundation of the question in this case, that at the period referred to, the boundary, three miles south of Charles river, was fixed, when that rivei had never been ascended by the colonists three miles from its mouth. e first settlement made by the colonists was in Salem. It was made by Governor Endicott. Boston was not settled until 1630 ; and until that year Charles river was never ascended. . The facts stated in the plea, and which are admitted by the comp am ants, are, that in 1642, Wooward and Saffrey’s monument was set up, to 204 1840] OF THE UNITED STATES. 240 Rhode Island v. Massachusetts. establish a south line for Massachusetts. This is clearly and distinctly stated in the early part of the plea. This brings us to the fact, that fifteen years after the settlement of Massachusetts, the monument was established, and was known and notorious. This was the position established for the boundary line of the colony ; and it is important to ask, if, by this line, Massachusetts encroached on territory, not a part of her territory, on whose territory did she encroach? Not on that of Rhode Island ; for the colony of Rhode Island did not then exist. She must have encroached on the territory of the crown of England. This state of things remained until 1663, when the colony of Rhode Island was established. Charles II. did not grant the territory which composed thé colony of Rhode Island, by metes and bonds ; other than declaring the north line of the colony to be “ on the north, or northerly, by the south or southerly line of Massachusetts plantations.” The colonies established by those grants did not hold under the king of England. The language of the grants, in express terms, excluded this. They were grants in “ free and common socage.” When Rhode Island received her territory by the grant, she received it bounded by the southwardly line of Massachusetts. This was an *acknowledgment of the r boundary. Now, after the elapse of 198 years of full and uninter- L rupted possession by Massachusetts ; as a colony, until 1776, and as a state,, up to the present period ; she seeks to drive Massachusetts back from this line ; and to take from her sovereignty and dominion over three miles of territory. Why is this effort made ? Why is this disturbance of the quiet and unmolested possession by citizens of Massachusetts, claimed ? Not because Rhode Island has a boundary different from that by which she has hitherto been restrained. She had no rights, when the colony was established, other than to the line now existing between the two states. All she has of boundary or of territory, are, by the express terms of her grant, secondary to those of Massachusetts. She goes up to the southerly line of Massachusetts ; and there she must stop, now, as heretofore. The case presented to the court, on the bill and answer, is that of a second grantee, taking his boundary from a prior grant ; and wTho, after the elapse of 198 years, seeks to disturb the line so long existing and recognised between the prior grantee and himself. On what ground? is this attempt made ? It is said, the boundary was fixed by mistake. But the state of Massachusetts does not acknowledge any mistake ; unless it is found in the fact, that her true southern boundary, if it had been correctly run, would be yet more south than that fixed by the Woodward and Saffrey station. Going highei' up Charles river, a point far south of that station could have been found ; which would have fully answered the boundary described in the colonial grant, of a line three miles south of Charles river. How is it sought to maintain the position, that the Woodward and Saffrey station is more than three miles south of Charles river ? It is said, thatli Mill brook ” and “ Whiting’s pond ” are not parts of Charles river. It is important to beai’ in mind, as has been stated, that when the station was fixed, but little of Charles river was known. The object of the grant was to give to the colonists the benefit of all the waters of Charles river ; and the' station was fixed in this view of the subject. “ Mill brook ” and Whiting’s pond ” formed branches of the river, as was then understood, 205 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 247 and has ever since been so considered. The question now before the court is identical with that which now disturbs the harmony of the United States and England, as to the northern boundary of the state of Maine. The question before the court is brought under the provisions of the constitution of the United States. By what code of laws is it to be decided ? There were no provisions in the articles of confederation, nor are there any in the constitution of the United States, prescribing the modes or rules of proceeding in such a case ; nor Are there any laws of the land, or rules of .. court, to regulate such a procedure, except *as to the notice of the - institution of the suit. In the history of the world, there is no account of a similar proceeding in any court of judicature. No adjudication of such a controversy is known in any court of the world. If any determination of the case is to be made, it must be under the law of nations. Will this court consider the case as one between individuals ; a question of contract ; and to be considered by the court with a view to enforce the contract, as if it were between two citizens or two individuals, parties to the controversy ? No state in the Union would submit to such a view of the case. Its rights, as a sovereign state, are deeply involved in this question. The rights of the citizens to the government under which they were born ; to the laws which they have assisted to make ; and under which they have always lived, and desire still to live ; under which they have acquired and hold their property ; are to be submitted to the court. The bill filed by the state of Rhode Island calls on the court to change the allegiance of a large number of the citizens of Massachusetts ; to oblige them to submit to a different body of laws than those which, by their own choice, have heretofore governed them; to dismember a state; and this, on the ground that, nearly 200 years ago, a mistake was made in fixing the boundary line between the two contending sovereignties. A possession of 198 years is thus to be disregarded ; and all the rights of citizenship, all the rights of property, all the affections of the people to the state of their birth, education and prosperity, are to be set aside. No complaint is made that the controversy between the parties to this case is presented by a bill in equity. It was proper to do so ; but this does not change the rules by which the case is to be decided. A court of equity restores the consideration which has been paid by a party to a contract, when it rescinds the contract. Will this court break up the compromise which was made by Massachusetts with Rhode Island ; and return to Massachusetts the one mile of her territory which was given by her to Rhode Island when the compromise was made ? This case must be discussed and settled upon principles which will have the sanction of the "whole civilized community. What can be more extraordinary and unusual, than an attempt, after the elapse of 198 years, to open a Question on the ground of a mistake by the parties who had, at that long bv-gone day, adjusted the controversy, in which adjustment, the mistake is alleged to have been made. Louis XIV. broke‘a treaty solemnly made, on the ground of a mistake in the negotiators of the treaty ; and all Europe was involved in war. The remarks of Voltaire on this act of the king of France, will apply to the attempt made in the case before this court, by th© state of Rhode Island. The state of Massachusetts has a right to call upon the complainants fol 206 1840] OF THE UNITED STATES. 248 Rhode Island v. Massachusetts. a case, in which a natural and ascertained boundary, known and acted upon for so long a period, has been disturbed. Look at *the question pre- [-*249 sented for the consideration of the court by the agreements between •• the commissioners of the two colonies, while they were colonies ; and which had the acquiescence of the legislatures of both the parties. These are all stated in the plea. It is alleged by Massachusetts, that there is a boundary between her and Rhode Island, of 198 years’ standing ; that this boundary was established by competent persons in 1710, and again in 1717 ; and from 1710, to the present time, Massachusetts, as a colony and as a sovereign state, has held the territory now claimed from her. Can a better reason against the removal or change of a boundary be given by any state ? Is not this a good diplomatic answer to the claim of the state of Rhode Island ? One sovereign and independent state asks territory from another state, of equal rank with herself. She is met by the fact that the territory asked has been in possession of the state from which she asks its surrender, for nearly 200 years. This should settle the question between the states. Established boundaries for 100 years would not be disturbed between nations, with the consent of other nations. What was the mistake asserted to have been made by the commissioners of Rhode Island ? It is said, they were misinformed as to the distance of Woodward and Saffrey’s station from Charles river. It is admitted by the complainant, that the commissioners of Massachusetts acted in good faith : and yet the agreement is to be cancelled. Fraud, actual fraud, would not set aside an agreement, after so much time had elapsed. If a party has slept on his case, or has suffered others to act under the belief that the subject was fully and finally arranged, courts of equity would not interfere, after nearly two centuries had gone by ; and property had been acquired, civil rights asserted, and undisturbed, during the whole of that long period. Although no attempt is made to change or affect the tenures of property, the civil rights of thousands are to be changed, and transferred to another government to which they are strangers. Again, an authority for the grant, by the tourt, of the object of the complainant’s bill, is asked for. Where is the case in which such relief has been sought ? Where is the instance in which it has been given ? It is true, that on the application of Rhode Island, commissioners have, at different times, been appointed by Massachusetts, and those commissioners have met with commissioners appointed on her part. This is a proper course of proceeding between states. A sovereign state must be heard, whatever may be the subject of her complaint. Subjects in controversy between states are not to be settled without delays and grave consideration. Respect is always to be given to applications by states to other political communities. But with all this courtesy and just regard to the dignity and just right of the state of Rhode Island to be respected, the state of Massachusetts has never receded from the line established by the Woodward and Saffrey station. Those acts of conciliation and international civility, do not affect the r!j! agreements of 1710 and 1721 ; it being admitted, that the possession L of Massachusetts is in exact harmony with them. Thus, in international aw, the case is against Rhode Island. e But we are willing to consider the case, as one to be decided by the rules of equity pleading. The complainant’s bill would have been bad on a 207 SUPREME COURT Rhode Island v. Massachusetts. [J an’y 250 demurrer, in a court of equity ; because it sets out a bar to the defendant’s case, and does not set out sufficient to destroy it. Possession, in a court of equity, is as certain a title to land, as in a court of law. It is now held, that a party may defend himself in equity, by possession, as well as at law. Elmendorf n. Taylor, 10 Wheat. 152. It is to be considered by the court, that everything stated in the plea is true. This is the necessary consequence of the position in which the complainant is placed, by the effort he now makes to show the court the plea is insufficient. It is admitted, the agreements between Rhode Island and Massachusetts of 1710 and 1721, were fair, and were made with full knowledge of the subject of the agreements, or with a full opportunity to obtain such knowledge. Possession accompanied those agreements, and was entirely consistent with them ; and they have never been rescinded or abandoned. This brings back the argument to the question of mistake. It is said, that the plea shuts out Rhode Island from her proof. But Rhode Island can prove nothing more than she has stated in her bill. Take all that is stated in the bill to be true ; and Massachusetts alleges it is not sufficient to set aside the agreements. This court cannot know more than the commissioners on behalf of Rhode Island, and on behalf of Massachusetts, knew in 1710. The ground of the assertion of mistake is not sufficient to open the controversy. Can controversies be nevei* settled, when parties say there has been a mistake ? 2 Powell on Cont. 90. The unreasonableness of a contract is not a ground to set it aside. Another well-established principle is, that when a thing is doubtful and uncertain, a settlement between the parties is conclusive. Powell on Cont. 125 ; 1 Ves. sen. 408 ; 1 Story’s Equity, 163 ; 1 Madd. Ch. Pract. 62-3. It is said, the defendant has not answered the bill; but this is the very question before the court. The plea and answer of the defendant are now under examination ; and it will be for the court to decide upon their suf-ficency, and whether they will sustain the defendant’s claim to be dismissed from any further action in the case. If the party had deemed the plea insufficient, he might have excepted to it, and have brought in other matter. This he has not done ; but he asks the court to' decide on the insufficiency of the plea and answer. This is altogether irregular. 1 Story’s Equity *2511 ’ Mitf. Plead. 200; Beames’ Eq. 248; 1 Vern. 185; *Coop. -* Eq. 284 ; 5 Madd. 328, 330 ; Allen v. Randolph, 4 Johns. Ch. 693. What is it that the defendant should have denied ? The rule of a court of equity is, that the plea or answer should deny the final result of all the allegations ; not each particular matter which may in itself be true. The permission which is given to the defendant to deny the whole charge of the bill, is essential to the existence and validity of a plea in bar. Beames’ Eq. 37 ; 5 Bro. P. C. 552 ; Gilb. Eq. 184 ; Coop. Eq. 328. There must be something, not denied by the plea, upon which the court can give a decree for the plaintiff. If there is not enough left undenied, sufficient to make a case for relief or recovery, none can be granted. The plaintiff might allege twenty facts, either quite immaterial, or even, perhaps, material in some degree, or' as matter of evidence, which the defen ant could not deny. For ^instance, the complainant avers that Dudley an Jenckes did not go on the ground to examine it. The defendants are no obliged to deny that; for the agreement may be good, if fair, thoug t 208 1840] OF THE UNITED STATES. 251 Rhode Island v. Massachusetts. fact were as is averred. So, the bill avers the discontent of Rhode Island ; an ex parte line having been determined upon. That may be so ; but that does not set aside the agreement. Massachusetts, it is asserted, appointed commissioners to meet commissioners appointed by Rhode Island. That may be so ; but the agreement was in full operation. Everything alleged to have happened after 1719 is called for, for the purpose of proving some waiver, rescission or abandonment of the agreement. If that were not the design, it had no object. Now, the plea meets and denies the general fact, which all these things are said to prove. Denying the general fact, we need not deny each of the circumstances relied upon as proof. There is a difference in this respect between the case now before the court, and a case where fraud is charged. Any fraud, little or great, vitiates ; every mistake does not. Any one circumstance amounting to fraud, proves fraud. Suppose, the complainant had charged, in direct terms, an abandonment of the agreement of 1710 : it would have been enough for the defendant to have denied the abandonment, in general terms. Taney, Ch. J., delivered the opinion.of the court.—When this case was last before the court, Massachusetts had not made her election, whether she would continue her appearance to the suit, or withdraw it, according to the leave previously granted. She has since that time made her election, by putting in her plea to the amended bill of the complainant; and both parties are now regularly before the court. In the present stage of the case, the question is upon the sufficiency of the plea, as a bai’ to the relief sought by the complainantf’s bill. The object of the bill is to establish the boundary between the two states, according to their respective charters; and to be restored to the right of jurisdiction and sovereignty over that portion of her *territory of which she alleges [-*252 that Massachusetts has unjustly deprived her. *- The bill states the various charters from the crown to the colonies of Massachusetts and Rhode Island, from 1621 to 1691 ; and avers that, by virtue of the charter of Rhode Island, the boundary between her and Massachusetts was a line run east and west, three miles south of Charles river, or any or every part thereof ; that the place of the said line being unsettled and in dispute between the two colonies, commissioners were mutually appointed to ascertain and settle it; that these commissioners met in 1710 ; and that the commissioners of Massachusetts then represented that a certain Nathaniel Woodward and Solomon Saffrey had, along time before, ascertained the point three miles south of Charles river, and had set up a stake there ; and that the commissioners of Rhode Island, relying on these representations, and believing them to be true, entered into the agreement of 1710, which is recited at large in the bill; and which adopts the place marked by Woodward and Saffrey, as the commencement of the line between Massachusetts and Rhode Island. The bill further states, that no mark, stake or monument at that time existed; and that the persons who consented to the pretended agreement, id not go to the place where it was alleged to have been set up, nor make ^ny survey, nor take any measures to ascertain whether the place was, in act, three miles, and no more, south of Charles river. That the said agree- 14 Pet.—14 209 252 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. ment was never assented to nor ratified by the colony or the state of Rhode-Island ; and that the tract of one mile in breadth, referred to in the agreement, was never conveyed to or enjoyed by the town of Providence, or Jie colony of Rhode Island ; and that no persons appointed by the governor and council of the said two governments of Massachusetts and Rhode Island, within the space of six months from the date of the agreement, or at any other time, showed the line of Woodward and Saffrey, or raised or renewed any marks, stakes or other memorials, according to terms of the said pretended agreement. The bill then proceeds to state the continuance of the controversy about the boundary, and the appointment of commissioners by both colonies, in 1717 and 1718 ; that they met in 1718, and that the like representations, as those charged to have taken place at the former meeting of the commissioners, were again made by the commissioners of Massachusetts ; that they were again believed by the commissioners of Rhode Island ; and the agreement of the 22d of October 1718 executed by them under that mistake. This agreement is set out at length. The complainants aver, that the commissioners did not go to the place where the stake was alleged to have been set up, nor make any survey in relation to this agreement. These averments are, in substance, the same with those made in relation to the agreement of 1710. The bill then sets out an order of the general assembly of Rhode * , Island> directing the return of the commissioners *to be accepted and J placed to record on the colony book ; but the complainants aver, that the last-mentioned agreement was never ratified by either Rhode Island or Massachusetts. The bill then sets out the running of the line, under the belief on the part of the Rhode Island commissioners, that it was only three miles south of Charles river, when it was in fact more than seven ; sets out, at large, their report of the running, which is dated May 14th, 1719, and that the return was approved by the general assembly of Rhode Island ; but the bill avers, that the persons who signed that report, were never authorized by Rhode Island to run, agree upon, or report said line, and had no legal authority to act in the premises; and that Massachusetts, about the time last mentioned, wrongfully possessed herself of the disputed territory, and has held it ever since. The bill further states, that the line run as aforesaid was never established by any act binding upon the complainant; on the contrary, she has always claimed that the true dividing line was three miles south of Charles river ; that she has never acquiesced in the claim of Massachusetts to a different line ; and that the claim of Rhode Island was publicly and frequently urged by the colony, and by the freemen and inhabitants thereof ; that all the proceedings of Rhode Island before mentioned, were founded on the mistaken belief that the stake set up by Woodward and Saffrey, and the line run as aforesaid, was only three miles south of Charles river; that this mistaken belief continued untill about 1749 ; that controversies existing ^during that period between the citizens of the two colonies in relation to the boundary, Rhode Island, in the year last mentioned, appointed cei-tain persons to run the line, when it became manifest that the line run as above mentioned in 1719, was more than three miles south of Charles uvei. The bill then states the negotiations and other proceedings of the two 210 1840] OF THE UNITED STATES. 253 Rhode Island v. Massachusetts. colonies in relation to this boundary ; that commissioners were appointed on both sides to run the line ; that it was actually run, as now claimed by the complainant, by the commissioners of Rhode Island, in the absence of the commissioners of Massachusetts ; who refused to attend. All of these things are particularly set out in the bill; and also, that Rhode Island attempted to obtain the decision of the king in council ; and the failure is accounted for by the poverty of the colony at that time, and the war which shortly afterwards broke out between France and England ; that the war of the revolution, which soon followed, interrupted and defeated the attempt to obtain the decision of the king in council ; that in 1782, the legislature of Rhode Island again took up the subject, and appointed a committee, who reported in favor of the claim now made by the complainant ; that in 1791, the two states mutually appointed commissioners to adjust this boundary, who met together in that year ; and at that meeting, the commissioners on the part of Massachusetts acknowledged, and also set forth in their report subsequently made to the legislature, that the pretended agreement of 1719, hereinbefore mentioned, had never been ratified either by Massachusetts *or Rhode Island, which report was accepted by the legis-lature ; that the commissioners of the two states, being unable to *-agree upon the boundary, entered into a written agreement, which is set out in the bill, recommending to the two states to submit the matter to indifferent men of the neighboring states ; or to unite in an application to congress to settle the same, agreeable to the respective charters, and the constitution of the United States; that the said commissioners, in 1792, reported their proceedings to their respective states, and the agreement made by them as aforesaid ; which said reports were received and accepted by the legislatures of Massachusetts and Rhode Island, the one made to Massachusetts being set out at large, as an exhibit to complainant’s bill ; that other commissioners were afterwards appointed on both sides, and were continued until the year 1818 ; that they had several meetings, but were unable to agree upon and settle the line. The bill then charges, that Massachusetts has wrongfully continued to hold possession, and exercise jurisdiction within the charter boundary of Rhode Island ; that the agreements of 1710 and 1718 were unfair and inequitable, and executed by mistake, as before mentioned ; that the line, as run, is not in a west course from the place of beginning, but is south of a west course, thus taking in a part of Rhode Islend, even according to the point alleged to have been ascertained and marked by Woodward and Saffrey ; that the agreements of 1710 and 1718, hereinbefore mentioned, were never ratified by Massachusetts or Rhode Island ; and if they had been so ratified by the colonies, they would not have been binding, without the consent of the king in council, which was never given to either of them. And the bill concludes with an averment, that Rhode Island has uniformly resisted the claim of Massachusetts ; has never claimed or admitted any other boundary than the one according to the charter ; and prays for an answer to all the matters charged, and to sundry special interrogatories put in the bill; and that the northern boundary of the state may be ascertained and established, and Rhode Island restored to the exercise and enjoyment of her rights of jurisdiction and sovereignty over the territory to which she 18 entitled by her charter limits. 211 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 254 To this bill, Massachusetts has put in her plea and answer ; in which she sets forth, that in the year 1642, for the purpose of ascertaining and establishing her true southern boundary, a station, or monument was erected at a point then believed to be on the true and real boundary line of the said colony, and a line continued therefrom westwardly to Connecticut river ; that the said station or monument then became, and ever since has been, well known and notorious, and then was, and ever since has been, called Woodward and Saffrey’s station ; that Massachusetts afterwards held and possessed jurisdiction up to this line, and while she so held and possessed it, about the year 1709, a dispute arose between the two governments of Massa-* , chusetts and Rhode Island, respecting this ^boundary line, and com- . * missioners were appointed by both colonies to settle it; and that whatever they should agree upon, should for ever after be taken to be the stated lines and bounds; that the commissioners met, pursuant to their authority, and entered into the agreement of 1710, which is set out at large. The plea then avers, that the whole merits of the complainant’s claim was -heard, tried and determined by this judgment and agreement of the commissioners ; that the agreement was fair, legal and binding between the parties ; and was in all respects a valid and effectual settlement of the matter in controversy ; and was had and made without fraud, covin or misrepresentation, and with a full and equal knowledge of all the circumstances by both parties ; and that the same is still in full force, no way waived, abandoned or1 relinquished ; that Woodward and Saffrey’s station was then well known, and the place where it was fixed a matter of common notoriety ; and the line run therefrom capable of being shown and ascertained, and the marks, stakes and memorials there, are easily capable of being discovered and renewed; and that the defendant has held and possessed the land, property .and jurisdiction, according to the said station and the line running therefrom, from the date of the said agreement to the present time, without hinderance or molestation. The plea then sets forth the proceedings of Massachusetts and Rhode Island, in 1717, appointing commissioners to settle the boundary ; the meeting of these commissioners, and their agreement in 1718, which is set out at large in the plea ; and which the defendant avers was accepted by Rhode Island, and caused to be duly recorded, and that the same was thereby ratified and confirmed. The plea further avers, that no false representations were made on this occasion by the commissioners of Massachusetts ; that the agreement was concluded in good faith, with a full and equal knowledge of all the circumstances, by the respective parties ; and that the same has never been rescinded or abandoned ; that it was made in pursuance of the first agreement before mentioned, in 1709, and in completion thereof; the plea then sets out at large, the report made by the commissioners in 1719, stating the manner in which the line was run ; and avers that the report was approved by the general assembly of Rhode Island, on the 16th of June 1719 ; and that from the date of said agreement to the present time, Massachusetts has possessed all the territory, and exercised jurisdiction over the same, north of the said line, as prescribed in the said agreement of October 1718, without hinderance or molestation. The plea then says, “and the said 212 255 1840] OF THE UNITED STATES. Rhode Island v. Massachusetts. defendant doth plead the said agreement of January 19th, 1710; and the said agreement in pursuance and confirmation thereof of the 22d of October 1718, and unmolested possession according to the same, from the date of the said agreements, in bar to the whole bill of complaint of the said complainant, and against any other or further relief therein ; and doth pray the judgment of the court, whether the said defendant *ought further to r# answer the said bill, and that said defendant may be dismissed with •-costs in this behalf sustained.” Then follows an answer in support of the plea, which is unnecessary to repeat. The plea was set down for argument, upon the motion of the complainant ; and the question now to be decided is, whether this plea is a bar to the complainant’s bill. In the view we have taken of the subject, it has become necessary to set out, in much detail, the contents both of the bill and the plea, in order to show the principles on which the opinion of the court is founded. . The con-« troversy concerns altogether the southern boundary of Massachusetts, and the northern boundary of Rhode Island. The bill sets out the judgment given in 1684, in the court of chancery of England, declaring the original charter of Massachusetts to be vacated, and that the enrolment of the same should be cancelled; and also sets forth the letters-patent afterwards granted to Massachusetts by William & Mary, in 1691, which was subsequent to the charter of Rhode Island. How far this fact may or may not be material, it would not be proper for us now to inquire. We advert to it, merely to show the character of the controversy. The complainant insists in her bill, that Massachusetts has encroached upon her ; and instead of coming three miles south of Charles river, for the southern line, the one to which she claims and holds is more than seven. The defendant, it will be observed, does not, in her plea, deny that the charter line of Massachusetts is such as the complainant describes ; nor does the defendant deny, that the line to which Massachusetts now holds, and to which she insists that she has a right to hold, is four miles further south than that described in the charter ; but she relies upon the circumstances set forth in her plea and answer, as conclusive proofs of her right, as against the complainant, at this time, whatever may have been the true boundary line between them, according to the terms of the original charters. The case to be determined is one of peculiar character, and altogether unknown in the ordinary course of judicial proceedings. It is a question of boundary between two sovereign states, litigated in a court of justice ; and we have no precedents to guide us in the forms and modes of proceedings, by whish a controversy of this description can, most conveniently, and with justice to the parties, be brought to a final hearing. The subject was, however, fully considered at January term 1838, when a motion was made by the defendant to dismiss this bill. Upon that occasion, the court deter-inined to frame their proceedings according to those which had been adopted in the English courts, in cases most analogous to this, where the boundaries of great political bodies had been brought into question. And acting upon this principle, it was then decided, that the rules and practice of the court °f chancery should govern in conducting this suit to a final issue. The leasoning upon which that decision was founded, is fully stated in the 213 *257 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. . opinion then delivered ; *and upon re-examining the subject, we are quite satisfied as to the correctness of this decision. (12 Pet. 735, 739.) The proceedings in this case will, therefore, be regulated by the rules and usages of the court of chancery. Yet, in a controversy where two sovereign states are contesting the boundary between them, it will be the duty of the dourt to mould the rules of chancery practice and pleading, in such a manner as to bring this case to a final hearing on its real merits. It is too important in its character, and the interests concerned too great, to be decided upon the mere technical principles of chancery pleading. And if it appears, that the plea put in by the defendant may in any degree embarrass the complainant in bringing out the proofs of her claim, on which she relies, the case ought not to be disposed of on such an issue. Undoubtedly, . the defendant must have the full benefit of the defence which the plea discloses ; but at the same time, the proceedings ought to be so ordered as to give the complainant a full hearing upon the whole of her case. In ordinary cases between individuals, the court of chancery has always exercised an equitable discretion in relation to its rules of pleading, whenever it has been found necessary to do so for the purposes 6f justice. And in a case like the present, the most liberal principles of practice and pleading ought, unquestionably, to be adopted, in order to enable both parties to present their respective claims in their full strength. According to the rules of pleading in the chancery court, if the plea is unexceptionable in its form and character, the’ complainant must either set it down for argument, or he must reply to it, and put in issue the facts relied on in the plea. If he elects to proceed in the manner first mentioned, and sets down the plea for argument, he then admits the truth of all the facts stated in the plea, and merely denies their sufficiency, in point of law, to prevent his recovery. If, on the other hand, he replies to the plea, and denies the truth of the facts therein stated, he then admits that if the particular facts stated in the plea are true, they are then sufficient in law to bar his recovery: and if they are proved to be true, the bill must be dismissed, without reference to the equity arising from any other facts stated in the bill. 6 Wheat. 472. Undoubtedly, if a plea, upon argument, is ruled to be sufficient in law to bar the recovery of the complainant, the court of chancery would, according to its uniform practice, allow him to amend ; and to put in issue, by a proper replication, the truth of the facts stated in the plea. / But in either case, the controversy would turn altogether upon the facts stated in the plea, if the plea is permitted to stand. It is the strict and technical character of these rules of pleading, and the danger of injustice often arising from them, which has given rise to the equitable discretion always exercised by the court of chancery jn relation to pleas. In many cases, where they are not overruled, the court will not permit them to have the full effect of a plea ; and will, in some cases, save to the defendant * . the benefit of it at the hearing ; and in others, *will order it to stand 258] £or an angwer, ag jn the judgment of the court may best subserve the purposes of justice. In the opinion of this court, it was evident from the argument we have heard, that if the plea stands, the case must be finally disposed of, upon an issue highly disadvantageous to Rhode Island. For by setting down t e 214 1840] OF THE UNITED STATES. 258 Rhode Island v. Massachusetts. plea for argument, that state is compelled to admit the truth of all the facts stated in it, many of which are directly at variance with the allegations contained in the bill. Thus, for example, the complainant avers, that the persons who signed, in her behalf, the agreement of May 14th, 1719, had no legal authority to act in the premises ; in the plea and answer of the defendant, it is averred, that they had authority. The bill charges, that the Rhode Island commissioners acted under a mistake ; that the commissioners of Massachusetts represented to them that the stake set up by Woodward and Saffrey was only three miles south of Charles river; and that they believed the representation, and acted upon it, when in truth the stake was seven miles south of that river; the plea, on the contrary avers, that the agreement was made with a full and equal knowledge of all the circumstances by the respective parties. There are differences also between the bill and the plea, in relation to the nature and character of the possession held by Massachusetts of the disputed territory. If we proceed to decide the case upon the plea, we must assume, without any proof on either side, that the facts above mentioned are correctly stated in the plea, and incorrectly set forth in the bill. This is the rule of the chancery law. Yet it is evident, that by deciding the case upon such an issue, we should shut out the very gist of the complainant’s case ; and exclude the facts upon which her whole equity is founded, if she has any. Because, if we assume, as we must do, in this state of the pleading, that the agreements, which are admitted on both sides to have been made, were made by persons having competent authority to make them, and who had full knowledge of all the circumstances ; and that Massachusetts had quietly and peaceably enjoyed the territory, under this agreement, for more than a century ; every one, we presume, would admit, that the claim of Rhode Island to unsettle this boundary, at this late day, was utterly groundless and untenable. Yet this is the attitude in which Rhode Island must stand, upon the issue framed by the plea ; the allegations in her bill, above mentioned, must be rejected as erroneous, without giving her an opportunity of proving them ;* and her claim to this territory must be decided, upon a statement of facts, the truth of which she utterly denies, and which she offers to prove are entirely erroneous, if the court will consent to hear her testimony. We do not mean to say, that the facts stated in the bill, if proved to be true, will entitle the complainant to recover. That point is not before us, in the present state of the pleadings ; and we give no opinion on the merits of this controversy. But certainly it would be unjust to the complainant, not to give her an opportunity of being *heard, accord-]ng to the real state of the case between the parties ; and to shut out from consideration the very facts upon which she relies to maintain* her If the complainant takes issue on the facts stated in the plea, her condition would be equally unfavorable. For there are many facts upon which e complainant evidentlv relies as material, which are altogether unnoticed ine Pæa, and upon which, therefore, no issue would be framed. And if : e complainant were to adopt this alternative, she would admit, according : ° ^le chancery rules of pleading, that all of the allegations contained in her were immaterial and of no importance, except those noticed in the plea ; an that if the facts averred in the plea turned out to be true, the complain- 215 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 259 ant had no right to recover, whatever equities might be found in the other allegations in the bill ; and whatever proofs she might be ready to adduce in support of these allegations. In either alternative, therefore, it would be manifestly unjust to the complainant, to decide this controversy upon the plea ; and if it was deemed good in form and substance, so far as the case is already presented to the court, we still should not finally decide the controversy on this plea, but save the benefit of it to the hearing, and give the complainant as well as the defendant, the opportunity of bringing forward all the merits of his case. But the plea put in by the defendant cannot be sustained, even if this were to be treated as a suit between individuals, and tried by the ordinary rules of chancery pleading. It is multifarious, and on that account ought to be overruled. It is a general rule, that a plea ought not to contain more defences than one. Various facts, therefore, can never.be pleaded in one plea, unless they are all conducive to a single point, on which the defendant means to rest his defence. This principle is so well established, that it is unnecessary to refer to many adjudged cases to support it. It is fully stated by Lord Hardwicke, in 1 Atk. 54, in the following words : “ The defence proper for a plea, must be such as reduces the cause to a particular point, and from thence creates a bar to the suit, and is to save the parties expense in examination ; and it is not every good defence in equity that is likewise good as a plea ; for where the defence consists of a variety of circumstances, there is no use of a plea; the‘examination must still be at large, and the effect of allowing such a plea, will be, that the court will give their judgment on the circumstances of the case, before they are made out by proof.” The defendant, after stating the various proceedings hereinbefore mentioned, which preceded and followed the execution of the agreements on which he relies, all of which conduce to a single point, that is, to show the obligatory and conclusive effect of those agreements upon both of the states, as an accord and compromise of a disputed right, deliberately made, and with full knowledge on both sides ; proceeds to aver, “ that the defendant has occupied and exercised jurisdiction, and enjoyed all rights and sover-* , eignty, according *to the same, from the date hereof to the present J time.” And he then sums up his defence in the following words : “And the said defendant doth plead the said agreement of the 19th January 1710, and the said agreement in pursuance and confirmation thereof, of the 22d October 1718, and unmolested possession, according to the same, from the date of the said agreements, in bar to the whole bill of complaint of the said complainant ; and against any further or othei relief therein.” The defence set up by this plea is twofold : 1. That there was an accoi and compromise of a disputed right : 2. Prescription, or an unmoleste possession from the time of the agreement, that is, of more than one hundred years. These two defences are entirely distinct, and depend upon different principles. . If what the defendant alleges be true, then the agicements themselves conclude the controversy. For if, as the plea avers, er was a dispute between these two colonies, in respect to the boun aij between them, and that dispute was settled by persons duly authorize o bind the respective parties ; and if, as stated in the plea, the agreemen o 216 18401 OF THE UNITED STATES. 260 Rhode Island v. Massachusetts. October 1718, to run the line from the stake set up by Woodward and Saffrey, was accepted, ratified and confirmed by Rhode Island ; and if the running of the line afterwards, in 1719, pursuant to such agreement, was also approved by Rhode Island ; then there can no longer be any controversy between them. They must, on both sides, be bound by the accord and compromise of those whom they had authorized to bind them, and whose conduct they afterwards approved ; provided the settlement w7as made, as the plea alleges, with a full and equal knowledge of all the circumstances. The various facts stated by the defendant, in relation to these agreements, contribute to support them, and conduce to establish this point of his defence. And assuming that the plea and answer are true in all these statements, then an accord and compromise is established, which was obligatory upon the parties, from the moment it was finally ratified. And taking everything averred by the defendant on this point of the defence to be correct, Rhode Island would have been as effectually barred as she is at the present moment, if she had commenced this controversy within a month after the accord was made. The lapse of time is not at all necessary to give validity to such a settlement, or to support the defence founded upon it. It is a matter entirely distinct from it ; and if it has any operation in the cause, it is another defence, and one of a different character. It is not an accord and compromise of a doubtful right—it is prescription. Rhode Island, indeed, avers, that the possession was constantly disputed on her part, and efforts made from time to time to regain it; and that it has always been an open question, since the error in the line was first discovered, down to the present time. But as we have already remarked, when the plea is set down for argument, the statements contained in it are admitted to be true. And according to the allegations there made, this long possession was unmolested. In that state of the fact, separated from all the averments *of Rhode Island, the possession of more than one hundred years would become a rightful one by prescription, even if L it had begun in wrong and injustice. The acquiescence of the adjoining state for such a lapse of time, would be conclusive evidence, that she assented to the possession thus held, and had determined to relinquish her claims. The possession, therefore, if a defence at all, is a separate and complete one of itself ; and forms no part of the accord and agreement alleged in the plea. Here, then, are two defences in the same plea, contrary to the established rules of pleading. A few cases will illustrate these principles, and show what constitutes duplicity in pleading. In the case of Whitbread v. .Brockhurst, 1 Bro. C. C. 404, where, to a bill for a specific performance of an agreement, the defendant put in a plea which averred two facts, first, that there was no agreement in writing, and secondly, that there had been no acts done in part performance ; Lord Thurlow overruled the plea as double, it containing two different points, and therefore, proper for an answer. And in delivering his opinion on that occasion, he says, “ the use of a plea here is to save time, expense and vexation ; therefore, if one point will put an end to the whole cause, it is important to the administration of justice that it should be pleaded; but if you are to state many matters, the answer is the most commodious form to do it in.” We are aware, that this decision has been questioned. But it is quoted with approbation, and recognised as authority, in 217 261 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. 7 Johns. Ch. 216 ; where Chancellor Kent, speaking of the case of Whitbread v. .Brookhurst, says, “ the reasoning of Lord Thurlow is supposed to be weighty and decisive; and since that time, it has been the constant language of the court, that the plea must reduce the defence to a single point, and that a defendant can never plead double.*’ Again, in the case of Claridge v. Hoare, 14 Ves. 65-6, Lord Eldon, in speaking of the case of Beachcroft v. Beachcroft, where it had been held, that the plea of a release, with an averment that it had been acted upon, was multifarious, expressed his doubts of that decision, upon the ground, that the release was effectual, without being acted upon, and the latter averment might have been rejected as surplusage. The reasoning of Lord Eldon shows, that if the second averment would have been a good point of defence, the plea would have been bad. The acting upon the release, in Beachcroft n. Beachcroft, was altogether unimportant, and could not, if true, affect the rights of the parties. But not so, as to the possession here pleaded. If true, as pleaded, it is of itself a defence, and could not, therefore, be rejected as surplusage. The case of the Corporation of London v. Corporation of Liverpool, 3 Anstr. 738, also illustrates and supports the principle we have stated. It is unnecessary, however, to multiply cases on this subject. They are all collected together in Story’s Equity Pleading, where the subject is very fully examined. We hold it to be perfectly clear, that in the case of an individual, the plea of a release and of the statute of . *limitations, or of an award and the statute of limitations, could J not be united in the same plea. And if so, it would seem irresistibly to follow, that the accord and compromise, and the title by prescription, united in this plea, render it multifarious ; and that it ought to be overruled on that account. We have carefully avoided expressing any opinion upon the merits of this controversy ; and have confined ourselves to the case as presented to the court by the pleadings. The facts stated in the bill, and not noticed in the plea, are not yet admitted or denied ; and consequently, we do not know in what form the case may ultimately come here for decision. In the case of Rowe n. Teed, 15 Ves. 377-8, Lord Eldon remarks, that “ the office of a plea, generally, is not to deny the equity, but to bring forward a fact, which, if true, displaces it.” A plea, therefore, in general, presupposes that the bill contains equitable matter, which the defendant by his plea seeks to displace. It is according to this principle of equity pleading, that we have treated the case before us. If a defendant supposes that there is no equity in the bill, his appropriate answer to it is a demurrer; which brings forward at once the whole case for argument. The case of Milligan n. Milledge, 3 Cranch 220, 228, illustrates this rule, and shows that the defence here taken was more proper for an answer or demurrer than a plea. The course determined on recommends itself strongly to the court, because it appears to be the only mode in which full justice can be done to both parties. Each will now be able to come to the final hearing, upon the real merits of their respective claims, unembarrassed by any technical rules. Such, unquestionably, is the attitude in which the parties ought to be placed in relation to each other. If the defendant supposes that the bill does not disclose a case which entitles Rhode Island to the relief she seeks, the who e subject can be brought to a hearing by a demurrer to the bill. If it is sup-218 1840] OF THE UNITED STATES. 262 Rhode Island v. Massachusetts. posed, that any facts are misconceived by the complainants, and therefore, erroneously stated, the defendants can put these in issue by answering the bill. The whole case is open ; and upon the rule to answer which the court will lay upon the defendant, Massachusetts is entirely at liberty to demur or answer, as she may deem best for her own interests. McLean, Justice.—The Massachusetts charter was granted by King Charles I., and is dated the 4th March 1628. It conveyed to Sir Henry Rosewell and others, “all that part of New England, in America, which lies and extends between a great river, there commonly called Monomack, alias Merimac, and a certain other river called Charles river, &c.; and also all and singular those lands and hereditaments whatsoever, lying within the space of three English miles on the south part of the said Charles river, or of any or every part thereof,” &c. *On the 8th July 1663, King Charles II. granted the charter of Rhode Island, “ bounded on the •-west, or westerly, to the middle or channel of a river there, commonly called and known by the name of Pawcatuck river, and so along the said river, as the greater or middle stream thereof reaches or lies up into the north country, northward, unto the head thereof, and from thence, by a straight line drawn due north, until it meets with the south line of the Massachusetts ; and on the north, or northerly, by the aforesaid south or southerly line of the Massachusetts colony or plantations,” &c. The line which limits Massachusetts on the south, and Rhode Island on the north, is the subject matter of controversy in this case. The bill states, that for many years after the Rhode Island charter was granted, the northern part of the colony, adjoining Massachusetts, remained wild and uncultivated ; and the land was of little value ; that a short time previous to the year 1709, a dispute arose respecting the northern boundary ; and that Massachusetts appointed one Joseph Dudley on her part, and the general assembly of Rhode Island appointed and empowered one Joseph Jenckes on her part, to ascertain and settle the disputed line ; that these persons met, together with one Nathaniel Paine, one Nathaniel Blagrove, and one Samuel Thaxter, of Massachusetts ; and one Jonathan Sprague, and one Samuel Wilkinson, of Rhode Island ; at Roxbury, in Massachusetts, the 19th January 1710 ; and that the said Joseph Dudley, Nathaniel Paine, Nathaniel Blagrove and Samuel Thaxter represented to the said Jenckes, Sprague and Wilkinson, that one Nathaniel Woodward and one Solomon Saffrey, who, they also represented to be skilful and approved artists, had, before that time, that is to say, in 1642, ascertained the point or place, three English miles south of the river called Charles river, or of any or every part thereof, and had there set up a stake ; and that Jenckes, Sprague and Wilkinson, relying on their represen-ations, and believing the point or place to have been ascertained, and that it was three English miles, and no more, south of Charles river, or of any or every part thereof ; the said Dudley and Jenckes, in the presence of, and with the advice of, the other persons named, signed and sealed a certain wiitmg, called an agreement, that the boundary should be run from th® i 8take set up by Woodward and Saffrey. And the complainant states, that no stake or monument at that time fisted, by which could be ascertained the place where it was set up by ooaward and Saffrey ; that the agreement was entered into without going 219 SUPREME COURT Rhode Island v. Massachusetts. [Jarfy 263 to the place of beginning, and without ascertaining whether it was not more than three miles south of Charles river ; and whether the line was run as stated in the agreement. That neither the colony, nor the state of Rhode Island, has ever assented to or confirmed tne agreement; nor has the town of Providence, nor the colony, enjoyed the tract of land specified in the agreement, of one mile in breadth, north of Woodward and Saffrey’s line ; that this line -was not shown nor run in six months after the *aefree-*2641 it © J ment; nor were any marks, stakes or other memorials made, to identify the place of beginning. That this controversy respecting the line continued ; and that Massachusetts, on the 18th June 1717, enacted an order, in the words following: “ The season of the year having been such, this spring, that the committee appointed in November last, to run the line between this government and the government of Rhode Island, could not attend the service : Ordered, that the honorable Nathaniel Paine, Esquire, Samuel Thaxter, Esquire, and John Chandler, Esquire, be a committee, to join with such as the said government of Rhode Island shall empower, to proceed in and perfect the running and settling the line between this province and the said colony, pursuant to the agreement lately made for that end by commissioners of both governments,” &c. And ,on the 16th November 1717, the general court of Massachusetts resolved, that Nathaniel Blagrove, Esquire, be added to the committee. And afterwards, the general court resolved, that “whereas, this house is informed, that the government of Rhode Island have fully empowered the committee which they have appointed, to run the line between this province and that government; to agree, compromise and issue the governments on that affair, and finally settle the dividing boundary : Resolved, that if the said committee shall attend that service, so empowered, that the committee appointed by this court to join in running the said line, be also vested with like powers; and are hereby fully empowered to agree, compromise and issue the difference between the governments in the said affair ; and to make a full and final settlement of the line between that government and this.” That on the 17th June 1718, the assembly of Rhode Island passed the following act: “ Whereas, the committee appointed and empowered by the general assembly of this colony, at their sessions on the first Wednesday of May 1717, to perfect and settle the line between the said colony and the province of Massachusetts Bay, were bound up or restricted to an agreement made at Roxbury between Colonel Dudley and Major Jendkes, &c., so as the matter in difference between the two colonies, as to the stating and settling the said line hath been retarded, to the considerable charge of the colony, this assembly, taking the premises under consideration, do hereby, enact, constitute and appoint Major Joseph Jenckes, Major Randal Holding, Major Thomas Fry, Captain Samuel Wilkinson and Mr. John Mumford, surveyor, a committee, to treat and agree with such gentlemen as are or may be appointed and commissioned by Massachusetts to settle the line,” &c. That on the 2d October 1718, the commissioners on both sides met at Rehoboth, and after discussing the subject, entered into an agreement under their hands and seals, “that the stake set up by Woodward an Saffrey, in 1642, upon Wrentham plain, be the station or commencement of the line,” &c. 220 1840] OF THE UNITED STATES. 264 Rhode Island v. Massachusetts. The complainant alleges, that this agreement was also entered into without examination of the place where the stake was originally set *up ; and without ascertaining whether the place was not more than r*265 three English miles south of Charles river, or of any or every part thereof. That the Rhode Island commissioners believed the statements made to them on this subject, by the commissioners of Massachusetts. The Rhode Island commissioners made a return of their proceedings to their legislature ; who accepted it, and ordered it to be recorded. On the 12th May 1719, the commissioners on both sides ran the line, beginning at the place where it was supposed the stake had been erected by Woodward and Saffrey ; but which stake was not found, and was more than seven miles from Charles river, or any or every part thereof. The commissioners made a return of their survey, which was received and * approved of by the legislature of Rhode Island. But the complainant alleges, that the persons making the survey were not authorized to act in the premises by Rhode Island. And the bill states the line was never confirmed by Rhode Island ; that the colony maintained that the true line was to be- -gin three miles south of Charles river; and the complainant avers, that all the above proceedings and agreements were founded upon the belief that the point or place three English miles south of Charles river, or of any or * every part thereof, had been correctly and truly ascertained by Woodward and Saffrey. In the year 1750, the general assembly of Rhode Island passed an act authorizing the boundary line to be run, and appointing certain persons to perform this duty. In the preamble to this act, it is stated, that the line never has been settled and run, according to the royal charter ; and that divers persons have set forth their rights to the assembly to be under the jurisdiction of Rhode Island, instead of that of Massachusetts. The commissioners appointed by this act were authorized to meet any commis-moners appointed by Massachusetts, and to settle the boundary and run the line. But if Massachusetts should decline to act, then the Rhode Island commissioners were required to run the line, agreeable to the charter, and make return of their proceedings. It is stated in the bill, that commissioners were appointed by Massachusetts, but they declined to meet _ the commissioners of Rhode Island ; who, after waiting two days near the place of beginning, proceeded, ex parte, to run the line, and make return thereof. This report was accepted by the assembly, and the commissioners -were continued in office. The bill then states, that the Massachusetts commissioners, appointed as above, made a report of their proceedings to the council, the 13th April 1750. The bill further states, that remonstrances were made to Massachusetts, against its exercise of jurisdiction over the country within the chartered units of Rhode Island, so long as the royal government continued ; that ' ^successful attempts were made to bring the subject before the king in -council ; but the population of Rhode *Island being small, and her , means limited, and war between England and France having soon L -er taken place, interposed insurmountable obstacles. In the year 1782, le petition of a large number of the inhabitants residing within the ^¡^overted limits, the assembly of Rhode Island made a report in favor 221 266 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. In the year 1791, the bill states, the legislature of Massachusetts passed an act, duly appointing Walter Spooner, Elisha Mayard and David Cobb, commissioners for ascertaining the boundary line between the said state of Massachusetts and the state of Rhode Island ; and that in the same year, the Rhode Island assembly passed an act, appointing William Bradford, Jabez Bowen and Moses Brown, commissioners for ascertaining the boundary. These commissioners met at Wrentham, in Massachusetts, in 1791, but they could not agree on the line. They, however, agreed, in writing, to measure from Charles river three miles south, as claimed by each state, as the place of beginning; and to recommend, to their respective governments to have the dispute adjudged, by a reference of it to disinterested persons, or by application to congress. These commissioners reported their proceedings to their respective states. And the bill further states, that in the year 1809, the parties again appointed commissioners, who continued in office until 1818 ; but they were not able to settle the line. The state of Massachusetts pleads in bar to the bill, that in 1642, for the purpose of ascertaining and establishing the true southern boundary line of the colony of Massachusetts, a station or monument was erected and fixed at a point then taken and believed to be on the true and real boundary line of said colony ; and a line continued therefrom, westerly, to Connecticut river; which said monument or station, then became, and ever since has been, well known and notorious ; and then was, and ever since has been, called Woodward and Saffrey’s station, on Wrentham plains ; and after fixing of said station and running the line aforesaid, and after the granting of the charter of Rhode Island, and while all the territory north of said station and line was claimed, held and possessed, and jurisdiction over the same exercised and enjoyed, by Massachusetts, as parcel of her own territory, viz., in the year 1709, disputes having arisen between the two governments respecting the said boundary line, under an act of the assembly, the governor of Rhode Island colony appointed Major Joseph Jenckes to meet with his excellency, Colonel Joseph Dudley, governor of Massachusetts, to settle the boundary ; and it was declared, that what they should agree upon should be for ever after deemed the true boundary. These persons met at Roxbury, in January 1710-11, and after a full discussion of the subject, agreed, that “ the stake set up by Nathaniel Woodward and Solomon Saffrey, skilful and approved artists, in the year 1642, and since that often renewed, in the latitude of forty-one degrees and fifty-five minutes, being three English miles distant southward, from the southern-* mos^ Part °f river called *Charles river, agreeably to the Jetters- J patent for the Massachusetts province, be allowed on both sides the commencement of the line between the Massachusetts and the colony o Rhode Island, and to be continued between the two governments, &c., as is deciphered in the plan and tract of that line by Nathaniel Wood war and Solomon Saffrey, now shown forth to us, and is remaining on recor in the Massachusetts government.” “And whereas, upon presumption, by mistake or ignorance of that me, the inhabitants of the town of Providence, in the colony of Rhode Is an , have surveyed and laid out several lots and divisions of land to the nort i. ward of Woodward and Saffrey’s line aforesaid, on the Massachusetts si e , it is agreed, that there shall be and remain unto the said town o rovi 222 1840] OF THE UNITED STATES. Rhode Island v. Massachusetts. dence, and inhabitants of the government of Rhode Island, a certain tract land, of one mile in breadth, to the northward of said line, as described and platted ; beginning from the great river of Pawtucket, and so to proceed at the north side of the said patent line, of equal breadth, until it come to the place where Providence west line cuts the said patent line, supposed to contain five thousand acres, be the same more or less ; the soil whereof shall be and remain to the town of Providence, or others, according to the disposition thereof to be made by the government of Rhode Island aforesaid. Nevertheless, to continue and remain within the jurisdiction of Massachusetts.” “ And it was agreed, that persons to be appointed respectively by the two governments, should attend the first good season, within six months, to show the ancient line of Woodward and Saffrey, and to raise and renew the marks and memorials of the same.” This agreement was signed and sealed by Dudley and Jenckes, in the presence and by the advice of Nathaniel Paine, Nathaniel Blagrove and Samuel Thaxter, on the part of Massachusetts ; and by Jonathan Sprague and Samuel Wilkinson, on the part of Rhode Island. “ And the said defendant avers, that the whole real and true merits of said complainant’s supposed cause or causes of action, were fully heard, tried and determined by the said Jenckes and Dudley ; that the said agreement was fair, legal and binding between the parties; and was in all respects and all particulars, a valid and effectual settlement of the matter in controversy, and was had and made without covin, fraud or misrepresentation ; and with a full and equal knowledge of all circumstances, by both parties.” And the plea further avers, that the 18th June 1718, in order to perfect and complete the running and settling of the line in pursuance of the above agreement, Nathaniel Paine, Samuel Thaxter and John Chandler, were appointed a committee by Massachusetts, to which was afterwards added the name of Nathaniel Blagrove, to unite with a committee that should be appointed by Rhode Island for that purpose. And they were fully empowered to agree and compromise the dispute. And Rhode Island adopted in its assembly *the following act: “ Whereas, the committee appointed and empow-ered by the general assembly of this colony, in May 1718, to perfect L ^68 and settle the line between the said colony and that of Massachusetts, were bound up or restricted to an agreement made at Roxbury between Colonel Dudley and Major Jenckes, &c., so as the matter in difference between the two colonies, as to the stating and settling the said line, hath been retarded, &c. And the assembly hereby enact, constitute and appoint Major Joseph Jenckes, Major Randal Holding, Major Thomas Fry, Captain Samuel Wilkinson and Mr John Mumfoi’d, surveyor, a committee, to treat and agree "with the committee of Massachusetts ; and full power was given to settle and compromise the controversy respecting the line. The said committees having met at Rehoboth, in Massachusetts, entered into an agreement under seal, that the stake set up by Woodward and Saffrey in 1642, upon Wren-am plains, be the station from which to begin the line which shall divide t e two governments,” &c. This agreement, on the 29th October 1718, was ccepted by the general assembly of Rhode Island, and recorded ; and was ereby certified and confirmed by the same. And the plea avers, that said aine, Blagrove and Thaxter, or either of them, made no false representa-!on whatsoever to the commissioners of Rhode Island ; but that the agree- 223 268 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. ment was done and concluded fairly and in good faith, with a full and equal knowledge of all the circumstances, by the respective parties. The plea states that the Massachusetts commissioners made a report of their proceedings, in regard to the place of beginning and the running of the line, which was approved by the legislature. And that from the date of said agreements to the present time, Massachusetts has possessed and enjoyed all the territory, and exercised jurisdiction over the same, north of the said line ; and that the place where the* stake was set up by Woodward and Saffrey is well, known, and has ever been notorious, since the stake was set up. And the aforesaid agreements, and the unmolested possession according to the same, are pleaded in bar. And the defendant, not waiving said plea, pleaded as aforesaid, but relying and insisting on the same, by way of answer, in support of said plea, and to everything alleged in said bill to show that the said agreements ought not to stand, and be allowed as good and conclusive against the parties, and a valid and effectual bar, &c., saith, that the said agreements, &c., were fail* and legal, obtained without fraud or misrepresentation, and with a full and equal knowledge of all circumstances in both parties ; and that it was a valid and effectual settlement of the matter in controversy ; and that it never has been in any way rescinded, abandoned or relinquished. This case having assumed the forms of a chancery proceeding, the established rules of chancery pleading must govern it. In this mode, the points for decision are raised ; but the court, in deciding the questions involved, . may apply principles of the'common law, *of chancery, or of national x * law, as they shall deem the circumstances of the case require. The plea sets up certain agreements in bar of the relief prayed for, which substantially appear upon the face of the bill; and it is insisted, that in such case, a demurrer, and not a plea in bar, is the proper mode of defence ; that the great object of the bill is to set aside these agreements ; and that, under such circumstances, they cannot be pleaded in bar. On general principles, it would seem to be unreasonable, that the complainant, by stating the matter in bar in his bill, should prevent the respondent from pleading it. And such is not the established rule in chancery pleading. A plea is a special answer to the bill, and generally sets up matter in bar, which does not appear in the bill; but this is not always the case. An award may be pleaded to a bill to set aside the award and open the account. Mitf. 260 ; 2 Atk. 501 ; 3 Ibid. 529, 644. If the plaintiff, or a person under whom he claims, has released the subject of his demand, the defendants may plead the release in bar of the bill; and this will apply t0 a bill praying that the release may be set aside. Mitf. 261 ; 1 Atk. 294, 6 Madd. 166 ; 2 Sch. & Lef. 721 ; 3 P. Wms. 315. If a bill be brought to impeach a decree, on the ground of fraud used in obtaining it, the decree may be pleaded in bar of the suit. 3 Bro. P. C. 558 ; 2 Eq. Cas. Abr. 177 , 7 Vin. Abr. 398 ; 3 P. Wms. 95. These authorities show, that a plea in bar may embrace matters stated in the bill. Where the matters in defence are fully stated in the billl, and it contains no allegations which it is necessary to deny by a plea, and by an answer in support of the plea, a demurrer should be filed. , A question in this case is made, whether the plea is not multifarious, an , consequently, bad ? The rules which govern a special plea at law, are su 224 1840] OF THE UNITED STATES. 269 Rhode Island v. Massachusetts. stantially the same as apply to a plea in chancery. It must be single, and not double. Its office is, to bring forward a fact, which may be the result -of a combination of circumstances ; and which, if true, bars the relief prayed for in the bill. 15 Ves. 377., A plea, in order to be good, must be either an allegation or a denial of some leading fact, or of matters which, taken collectively, make out some general fact, which is a complete defence. Story’s Eq. Pl. 497 ; 4 Sim. 161 ; 7 Johns. Ch. 214 ; Beames’ Pl. in Eq. 10. But although a defence offered by way of plea should consist of a great variety of circumstances, yet, if they all tend to a single point, the plea may be good. Thus, a plea of title derived from the person under whom the plaintiff claims, may be a good plea, though consisting of a great variety of circumstances ; for the title is a single point, to which the cause is reduced by the plea. So, a plea of conveyance, fine and non-claim, would be good, as amounting to one title. Coop. Eq. Pl. 225 ; *Beames’Pl. in Eq. 18 ; Mitf. Eq. Pl. 296. The result of all the authorities is, that various facts may be pleaded, if they conduce to a single point, on which the defendant means to rest his defence. And by this rule the plea in this case must be tested. The defendant pleads in bar to the right asserted in the bill, the establishment of the Woodward and Saffrey station, as the place where the contested boundary line is to commence, and from which it was in fact run. And to support this, the agreements of 1710 and 1718 are relied on, and also the unmolested possession according to the same. These agreements, and the unmolested possession according to them, are facts and circumstances which •conduce to prove the right or title asserted in the plea. They are consistent with each other; and can, in no correct sense, be considered as tending to establish distinctive grounds of title. The two agreements are substantially the same ; and the unmolested possession, according to the agreements, is a consequence which naturally follows, and tends very strongly to confirm them. The important fact asserted in the plea is, that the controversy was amicably adjusted between the parties, by the establishment of the line ; and there is not a fact or circumstance averred in the plea, which does not go to support this main fact. This plea then cannot be multifarious. The point relied on is single and distinct, although it is established by a variety of lacts and circumstances. e Mere surplusage will not render a plea multifarious or double. Beames’ Pl. m Eq. 19, 20. In Story’s Eq. Pl. § 653, n. 3, it is remarked, what constitutes duplicity or multifariousness in a plea, is sometimes a matter of great nicety, upon the footing of authority. A plea cannot contain two distinct matters of defence; for, if more than one defence be admitted, it is well observed, there may be as many grounds of defence stated in a plea as in an answer; and this would defeat the object of the plea. Where, in a bill praying a conveyance for four estates, the defendant put in a plea of a fine as to one estate, and in the same plea, he put in a disclaimer as to the other estates, the plea was overruled ; for the disclaimer was wholly disconnected with the plea of the fine, and the plea was, therefore, double. Facts,- unconsistent with each other, cannot be pleaded, for this would set up two defences. But where the facts, however numerous, all conduce to establish one point, as in the plea under consideration, it is not multifarious. Story’s Eq. Pl. 499. his plea goes to the whole bill, and the matter in bar is clearly and 14 Pet.—15 225 270 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. distinctly averred. These averments must be sufficient to support the plea, and exclude intendments against the pleader. 2 Ves. 245 ; 2 Sch. & Lef. 727 ; 18 Ves. 182. The defendant has filed an answer in support of his plea, and this is necessary where there are equitable circumstances stated in the bill, in favor of the plaintiff’s case, against the matter pleaded. These allegations in the * , bill must be denied by way of answer, as *well as by averments in J the plea. 6 Ves. 594 ; 2 Ves. & B. 364. In such case, the answer must be full and clear, or it will not be effectual to support the plea ; for the court will intend the matters so charged against the pleader, unless they are fully and clearly denied. But if they are, in substance, fully and clearly denied, it may be sufficient to support the plea ; although all the circumstances charged in the bill may not be precisely answered. Mitf. 298-9 2 Atk. 241 ; 1 Sim. & Stu. 568 ; 5. Bro. P. C. 561. The answer goes to the whole bill, and it denies all fraud, misrepresentation or unfairness ; and every allegation in the bill which goes to show that the agreements set forth in the plea should not be binding and conclusive on the parties. A question is made, whether this answer, which goes to the whole bill, and denies the same facts as are denied in the plea, does not overrule the plea. This objection seems to derive some support from certain decisions made in the exchequer, and which have been, somewhat loosely, copied into some of the elementary treaties on chancery pleading. But these decisions have never been sanctioned by the high court of chancery in England ; whose rules of practice have been adopted by this court. The rule is, that the answer must not be broader than the plea; but must, in support of the plea, deny fraud and all equitable circumstances alleged in the bill, which are also by a general averment denied by the plea. The answer, when filed in support of the plea, forms no part of the defence. It is evidence which the plaintiff has a right to require, and to use to invalidate the defence made by the plea. 6 Ves. 597. In a note in Mitf. 240, it is said, “that in the cases in the court of exchequer, it seems to have been supposed, that the answer in support of the plea overruled the plea. But an answer can only overrule a plea, where it applies to matter which the defendant, by his plea, declines to answer ; demanding the judgment of the court whether, by reason of the matter stated in the plea, he ought to be compelled to answer so much of the bill.” If the plea goes only to a part of the bill, and prays the judgment of the court whether he shall be compelled to answer the other part; and the answer goes to the whole bill, the answer being broader than the plea, overrules it. For the answer is to the part of the bill which it is the object of the plea not to answer. As this plea extends to the whole bill, it is essential to its validity, that such facts should be averred in it as shall make a complete defence. But it is not necessary in the plea to notice every allegation in the bill which does not involve the facts that constitute the bar. Where the plea does not cover the whole bill, as where it only sets upon a matter in bar to a part of the relief sought in the bill, the other part of the bill must be answered. In the case undei *9'791 consideration, *the answer in support of the plea is not broader than J the plea, and consequently does not overrule it. I come now to examine the great question in the case ; and that is, whether the matter in bar, set out in the plea, constitutes a good defence ta 226 1840] OF THE UNITED STATES. 272 Rhode Island v. Massachusetts. the bill. In entering upon this subject, it may not be improper to notice the hardship complained of by the plaintiff’s counsel, in setting up the defence by a special plea. It is said, that the ground assumed is narrow and technical, and excludes the full merits of the controversy from being examined. That no opportunity is afforded the plaintiff to prove the mistake by the commissioners, in agreeing to Woodward and Saffrey’s station as the place where the boundary line was to begin ; and which is the main ground on which the bill prays for relief. It is true, a plea somewhat narrows the ground of controversy. Whilst it must contain all the facts material to a complete defence, it need not be extended to all the allegations of the bill. And the plaintiff may either take issue on the plea, or admit the truth of it, by setting it down for hearing ; as has been done in this case. The office of a plea is to reduce the cause to a single point, and thus prevent the expense and trouble of an examination at large. But the matters stated in the bill, which are not denied by the plea, are admitted to be true. The case of the plaintiff, then, as now to be considered, is a full and as strong as it is presented in the bill, where not denied by the plea. The averments of the plea are admitted to be true ; and the question is, whether those averments, counteracted by any allegations in the bill, not denied by the plea, constitute a bar to the right asserted by the plaintiff. The plea states, that in the year 1642, Woodward and Saffrey erected a station or monument, at a point then taken and believed to be on the true and real boundary of Massachusetts, on the south. And that in 1710, this station was agreed to be the true boundary, and the place from which the line should be run, by Dudley and Jenckes, commissioners appointed by Massachusetts and Rhode Island ; and who were authorized to settle and establish the line. And that afterwards, in the year 1718, other commissioners were appointed by Massachusetts and Rhode Island; to whom ample powers were given to compromise and settle for ever the boundary ; and who established the same place of beginning. And that the report made to Rhode Island by its commissioners, setting forth the agreement, was accepted by its legislature, and duly recorded and ratified. And the plea avers, that the Massachusetts commissioners were guilty of no fraud or misrepresentation ; and that both agreements were entered into with perfect fairness, and in good faith ; and with full and equal knowledge by the parties. That the claims of the plaintiff, as set forth in the bill, were fully heard, discussed and settled. And that Massachusetts has retained possession and exercised jurisdiction over the country north of the line thus established, until the present time. These are the facts, -substantially, on which the defendant relies, as a bar to the plaintiff’s bill. The principal ground of relief alleged in the bill is, the mistake in fixing the place from which the line was to run, more than seven miles south of harles river; wffiereas, by the charter of Massachusetts, it was to be but t ree miles south of that river. By the charter, the boundary was declared to be “three English miles south of any or every part of Charles river.” ome doubt may arise from this phraseology, whether the three English *es are to be measured from the source of the southern branches of arles river, or from the main channel of the river. And it would seem, r^e . establishment of the Woodward and Saffrey station, and other ac 8 done in reference to this boundary, shortly after the date of the charter, 227 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 273 and when its language was at least as well understood as at present, that the measurement was understood not to be required from the body of the river. At that early day, the country was a wilderness, and the land was of but little value; so that Massachusetts could have felt no very strong interest in establishing the line farther south than was authorized by the charter. The bill alleges a mistake in this distance from the river, of the Woodward and Saffrey station, by the commissioners of Rhode Island, in both of the agreements respecting the boundary ; and this mistake is not denied by the plea. But in the language of the plea, these agreements are now to be considered as having been fairly made, in good faith, without fraud or misrepresentation by the Massachusetts commissioners ; and with an equal and full knowledge of the facts and circumstances of the case. And the inquiry is, whether a mistake committed under such circumstances affords a sufficient ground on which to set aside the agreements. I will first consider the principles of this case, as they would apply to a controversy between individuals respecting a common boundary. The mistake of a fact, unless it operates as a surprise or fraud on the ignorant party, affords no ground for relief in chancery. 1 Story’s Eq. 160 ; 2 Ball & Beat. 179, 180 ; 4 Bro. C. C. 158 ; 6 Ves. 24. The ground of relief in such cases is, not the mistake or ignorance of material facts alone, but the unconscientious advantage taken of the party by the concealment of them. For if the darties act fairly, and it is not a case where one is bound to communicate the facts to the other, upon the ground of confidence or otherwise, the court will not interfere. 1 Story’s Eq. 160 ; 9 Ves. 275. It is essential, in order to set aside such a transaction, not only that an advantage should be taken, but it must arise from some obligation in the party to make the discovery; * .. not an obligation in *point of morals only, but of legal duty. 2 Bro. C. C. 240; 1 Harr. Eq. b. 1, ch. 3, p. 4, note n. Equity will not relieve, were the means of information are open to both parties ; and where each is presumed to exercise his own judgment. 2 Wheat. 178, 195. Where an agreement for the composition of a cause is fairly made between parties, with their eyes open, and rightfully informed, a court of equity will not overhaul it; though there has been a great mistake in the exercise of judgment. 1 Ves. 408 ; 1 Story’s Eq. 163. In like manner, where the fact is equally unknown to both parties; or where each has equal and adequate means of information ; or where the fact is doubtful from its own nature ; in every such case, if the parties have acted with entire good faith, a court of equity will not interpose. For in such cases, the equity is deemed equal between the parties ; and when it is so, a court of equity will not interfere. 1 Pow. on Cont. 200 ; 1 Madd. Ch. 62-4 ; 1 Story’s Eq. 163. The principles recognised by these authorities apply, in all their force and conclusiveness, to the case under consideration. A greater number of authorities might be cited, but it cannot be necessary. The principles stated are founded on reason and the fitness of things ; and they have been sanctioned by a uniform course of adjudication. If these rules are to be respected, and the mistake alleged in the bill had occurred under precisely the same circumstances between individuals, it would seem to be clear, that there would be no ground for relief. A controversy exists between individuals, respecting a common boundary; 228 274 1840] OF THE UNITED STATES. Rhode Island v. Massachusetts. one party claims that the line should begin at a certain point, and the other at a different one ; arbitrators are appointed, with full powers to settle and compromise the dispute, who establish the point as claimed by one of the parties. Some dissatisfaction is subsequently manifested by the unsuccessful party ; and seven years after the first reference, a second one is made to other persons, who are vested with ample powers to settle and compromise the controversy ; and they do settle it in exact conformity to the first award; and this second award is reported to the principals, who sanction it. In addition to this, the line or place of beginning established by the arbitrators, is the place claimed by the successful party, as his line, more than seventy-five years before the second award ; and more than twenty years before the other party had any interest in the boundary. And the conduct of the arbitrators is free from any imputation of fraud or unfairness ; all having equal and full knowledge of the matter in dispute, which was fully and fairly discussed and understood, and finally determined. A case under these circumstances between individuals, to say nothing of the lapse of time and acquiescence, since the award, *would not seem to be very r*275 strongly recommended to the equitable interposition of the court, on *• the ground that the arbitrators mistook a fact; a mistake not induced by the opposite party, or by misrepresentation, but into which the arbitrators of the unsuccessful party had innocently fallen, having as full a knowledge of the whole merits of the case as the arbitrators chosen by the other party. Relief, which should set aside the award, and open up the controversy, under such circumstances, would create a new head of equity. The mistake is admitted, because it is not denied by the plea ; and this may be said to be a technical advantage of the plaintiff. For if the fact of mistake were to be tested by the circumstances of the case, it would be difficult to come to the conclusion that a mistake had really occurred. If it were admitted to have taken place in the first award, it would require no small degree of credulity, to believe, that- it again occurred in the second award, made seven years after the first one ; and after much dissatisfaction had been manifested against the first award. This dissatisfaction could only have arisen, from the supposed fact that the boundary had been established too far south. But as the case is now considered, the mistake alleged is admitted ; but admitted under all the averments of the plea. If the Woodward and Saffrey station be as many miles south of Charles river, as alleged in the bill ; it would seem to be a more reasonable supposition, that it was agreed to, under a construction of the charter, or on the principles of compromise, than through mistake. But the mistake being admitted, still, as between individuals, there would be no sufficient ground for the interposition of a court of equity. And if relief could not be given between individuals, can it be decreed, under the same circumstances, as between sovereign states. There are equitable considerations, which would seem to apply with greater force to controversies between individuals, than to those which arise between states. Among states, there is a fligner agency, greater deliberation, and a more imposing form of proceed-yre, in the adjustment of differences, than takes place between private nuividuals. Between the former, from the nature of the proceeding, mis-a es of fact seldom occur ; and when they do happen, it is rather a question 0 policy than of right, whether they shall be corrected. 229 SUPREME COURT Rhode Island v. Massachusetts. [Jan’y 275 I am inclined to think, with the counsel on both sides, that the great question in this case should not be decided by the rules for the settlement of private rights. The high litigant parties, and the nature of the controversy, give an elevation and dignity to the cause which can never belong to differences between individuals. It may be a simple matter to determine where a line shall be run ; but when such determination may draw after it a change of sovereign power over a district of *country, and many J thousand citizens, the principles involved must be considered as of the highest magnitude. The question is national in its character ; and it is fit and proper that it should be decided by those broad and liberal principles which constitute the code of national law. Vattel, in his treatise, p. 277, says, “ When sovereigns cannot agree about their pretensions, and are nevertheless desirous of preserving or restoring peace, they sometimes submit the decision of their disputes to arbitrators, chosen by common agreement. When once the contending parties have entered into articles of arbitration, they are bound to abide by the sentence of the arbitrators : they have engaged to do this ; and the faith of -treaties should be religiously observed.” And again, “ In order to obviate all difficulty, and cut off every pretext of which fraud might make a handle, it is necessary that the arbitration articles should precisely specify the subject in dispute, the respective and opposite pretension^ of the parties, the demands of the one and the objections of the other. These constitute the whole of what is submitted to the decision of the arbitrators ; and it is upon these points alone, that the parties promise to abide by their judgment. If, then, their sentence be confined within these precise bounds, the disputants must acquiesce in it. They cannot say, that it is manifestly unjust; since it is pronounced on a question which they have themselves rendered doubtful by the discordance of their claims, and which has been referred, as such, to the decision of the arbitrators. Before they can pretend to evade such a sentence, they should prove, by incontestable facts, that it was the offspring of corruption or flagrant partiality.” And again, in page 178, he says, “ Arbitration is a very reasonable mode, and one that is perfectly conformable to the law of nations, for the decision of every dispute which does not directly interest the safety of the nation. Though the claim of justice may be mistaken by the arbitrators, it is still more to be feared that it will be overpowered in an appeal to the sword.” The author well observes, that the Helvetic republic, by a wise adherence to this mode of adjusting controversies among themselves, and with foreign countries, has secured its liberty, and made itself respectable throughout Europe. These principles have been established by the common consent of the civilized world. And where they are invoked in the settlement of disputes between states, and the proceeding is characterized by fairness and good faith, it ought not to be set aside, and indeed cannot be ; without, in the language of Vattel, proving by the clearest evidence, that the award was the offspring of corruption or flagrant partiality. And if the determination o the arbitrators has the sanction of time as well as of principle, it is believe , that history affords no instance where it has not been considered as absolute y binding on the parties. The peace of nations, and the prosperity of man kind, require that compacts thus formed should be held sacred. 2 J *The pretensions of Massachusetts in favor of the line as esta 230 1840] OF THE UNITED STATES. 277 Rhode Island v. Massachusetts. listed by both arbitrations, commenced in 1642 ; and no other jurisdiction, had been, at any time, exercised over the country north of this line. It was claimed before Rhode Island had a political existence. The elements of which it was afterwards composed, were, at the time this right was first asserted, mingled with the parent colony of Massachusetts,' and with other communities and nations. And after they became embodied and organized under the charter of 1663, it was nearly half a century before there seems to have been any dispute respecting this boundary. Nearly two centuries have elapsed since the claim of Massachusetts to this line was set up, and more than a hundred and twenty years since the controversy was settled by the commissioners or arbitrators chosen by the parties; and, as averred in the plea, specially sanctioned and confirmed by Rhode Island. Is time to have no influence in this case, on the agreements of the parties ? It covers with its peaceful mantle stale disputes between individuals; and so strong is its influence, that fraud, which vitiates all human transactions, cannot be reached when covered by great lapse of time. Has a treaty ever been set aside on the ground of mistake ? Has it ever been contended, that after its ratification by the high contracting parties, either could look behind the treaty and object to it, because the negotiators had mistaken a fact ? It is believed, that such a pretension would be new in the history of diplomacy. The treaty must speak for itself ; and under its provisions must the rights of the parties be ascertained. In the first treaty of limits between this country and Great Britain, it is a fact, not now questioned, that a mistake of many miles was made in establishing our northern boundary. But this has afforded to Great Britain no occasion of remonstrance or complaint. Our own government, on a recent occasien, declined an acquiescence in the decision of the king of the Netherlands, in relation to this same boundary. But in his letter of July 21st, 1832, to the representative of Great Britain in this country, the secretary of state says, in relation to the resolution of the senate against the decision ; that it was adopted under the conviction that the arbiter had not decided the question submitted to him, or had decided it in a manner not authorized by the submission.” “ It is not,” he adds, “ the intention of the undersigned, to enter into an investigation of the argument which has led to this conclusion. The decision of the senate precludes it, and the object of this communication renders it unnecessary ; but it may be proper to add, that no question could have arisen as to the validity of the decision, had the sovereign arbiter determined on and designated any boundary as that which was intended by the treaty of 1783.” This view, by the secretary, of the binding effect of the decision, if it had been made on the point submitted to the arbiter, is in accordance *with the principles of national law, $nd has a direct and most forcible application to the case under con- •-sideration. No objection is made by Rhode Island that the arbitrators exceeded their powers. No such objection can be made. Their powers were ample; and their proceedings, both in 1710, and in 1718, seem to have been characterized by great dignity and deliberation. The complainant, it is true, was dissatisfied w’ith the first decision, establishing Woodward and Saffrey’s ation ; and by remonstrances induced the appointment of the second commission in 1717, which, in the following year, confirmed, in all respects, the 231 278 SUPREME COURT [Jan’y Rhode Island v. Massachusetts. first decision. Notwithstanding these remonstrances against the first decis-on, it would seem from the bill, that untill 1749, the complainant believed that Woodward and Saffrey’s station was only three English miles south of Charles river ; and was, consequently, the true point from which the line should be run. This being the case, as the bill does not state the precise ground of dissatisfaction at the first report, it cannot well be imagined. Rhode Island, it seems, from time to time, by remonstrances, in the form of resolutions and otherwise, and by the appointment of commissioners, signified its dissatisfaction at the boundary, as established in 1710 and 1718. Massachusetts, as it was bound in comity to do, listened to these expressions by Rhode Island ; and more than once appointed commissioners on the subject. But whether we look to the averments in the plea, or to the statements in the bill, the defendant never seems to have done anything which could impair the force of the agreements. The bill states various facts, such as the little value of the land bounding on the disputed line for many years, the sparseness of the population, the want of means, and the intervention of war, as reasons why Rhode Island did not bring this controversy before the king in council, under the colonial government. It appears from the exhibits accompanying the bill, that, in 1740, there being a dispute between Massachusetts and Rhode Island, whether the former could exercise its jurisdiction to the shores of the Nar-raganset bay, the king of Great Britain appointed commissioners to settle the controversy, who decided against Massachusetts. This decision was confirmed, on an appeal from the commissioners, by the king and council. So long as the colonial government continued, this mode of redress, so successfully invoked by the complainant in the above instance, remained open. The articles of confederation, formed by the new government, made special provision for the settlement of disputed boundaries between states. And when these were revoked by the adoption of the constitution, the tribunal at last appealed to was open ; and has -ever remained ready to hear and decide the controversy. Giving full weight to all the allegations in the .. bill, which go to *excuse the delays of Rhode Island in asserting its claim, it is still difficult to say, that the claim remains unaffected by the unmolested possession of Massachusetts, according to the agreements. Rhode Island, it is true, is small in territory, and weak in numerical force, but it has always stood high in moral power, and intellectual endowment; and the tribunals which, since the commencement of the controversy, have been open to hear its complaint, have been tribunals of reason, of justice and of established law. The arguments of the counsel for the complainant, zealous and able as they were, rested mainly on the hardship and injustice of deciding this controversy on the pleadings as they now stand. The mistake is admitted, and what is there else in the bill, taken in connection with all the facts an circumstances, which can give the case of the complainant a more imposing form. No fraud is imputed ; the sealed agreements, now and ever, must speak in the same language ; the effect of time will remain ; an to excuses alleged in the bill for delay, can scarcely have, under any orm o pleading, greater effect than may be given to them as the case now stan s. I speak not of the volume of evidence which may be thrown into the cas® a change of the pleadings ; but of the leading and indisputable acts m 232 279 3840] OF THE UNITED STATES. Rhode Island v. Massachusetts. must, under any form of procedure, have a controlling influence in the decision. Believing, as I do, that in admitting the truth of the plea, Rhode Island has done nothing prejudicial to her interests ; and that in the present attitude of the case, its substantial merits are before us, I feel »bound to pronounce a different opinion from that which has been given by a majority of my brother judges. Taking the facts of the plea, and giving due weight to all the allegations of the bill, not denied by the plea, I am led to the conclusion that the bar is complete. In coming to this conclusion, I feel no want of respect for the state of Rhode Island, which has become so illustrious in our history, by its enterprise, its intelligence and its patriotism. Catron, Justice.—The facts and pleadings have been so fully stated by my brethren, as to require from me only a brief notice of the conclusions my mind has come to on the points in controversy. The defence, in the form of an incongruous plea, must set up matter in bar, which, if true, renders immaterial every other fact alleged in the bill; be these as they may, the defence must be conclusive of the controversy ; and every necessary averment to sustain the matter pleaded in bar, must also be made in an answer covering the plea, which cannot be permitted to stand unsupported by an answer. This is the familiar and settled practice of the high court of chancery in England; and adopted by rule in the courts of the United States. In form, it is believed, the plea and answer in this cause are accurate in a high degree, in regard to the matter pleaded, and the *averments necessary to give it effect, in the sense it is relied on as a bar ; unless L the defence set up be double. It is insisted, the plea is multifarious, because it relies on two defences : first, the compacts ; and second, the possession and occupation of the territory claimed by the plaintiff, for more than a century. The facts pleaded must be conducive to a single point of defence ; and the question is, are the compacts, the marking of the line in part execution of them, and the talking and holding possession in other part, and complete execution of them, combined facts and circumstances, conducing to establish the single point relied on in defence ? That is, that the line run from Woodward and Saffrey’s station was the true boundary, established by, and marked in execution of, the compacts ; and that by the compacts Rhode Island is estopped to deny its validity. And I think the circumstances pleaded are so connected as not to vitiate the plea. If it is bad, it must, therefore, be so on its merits, involving the obligatory force of the compacts. That they me primd facie conclusive of the boundary, is admitted ; but the bill alleges they were made in mistake, and the line run and marked, and possession surrendered to Massachusetts, in mistake of a prominent fact ; that Rhode Island then believed the station, and the line run from it, three miles south of Charles river ; whereas, subsequent observation and examination had ascertained it to be much further south, that is, about seven miles. The Massachusetts charter calls for a line to be drawn east and west, “ three miles south of the waters of said Charles river, or of any, or every part thereof and the plea, in substance, avers, the charter was construed, and the line settled by the compacts, without misrepresentation on the part of Massachusetts, and with full and equal knowledge of all circumstances by both parties. 233 SUPREME COURT Rhode Island v* Massachusetts. [Jan’y 280 The plea having been set down for argument, without an issue, must for the present be taken as true ; and the averments taken as admitted, that the parties entered into the compacts, and established the boundary, with full and equal knowledge of all the circumstances of law and fact involved in the controversy, as it then existed, and now exists. And in the face of the compacts thus made, can Rhode Island be heard to allege the existence of a mistake in the boundary established by them ; and marked by the mutual commissioners, and as the joint act of both parties ? Under the circumstances, to open the controversy, and let in proof of a mistake, at this day, to overthrow a solemn treaty made between two independent governments, is deemed by me, inadmissible, not to say dangerous. And I think the matters pleaded (if true) a good defence. If this compromise and solemn establishment of a boundary, made a century ago, can be impeached on the ground of a mistake, so palpable and easy of detection ; cannot every other made by the states be brought before this court, on a similar assumption, usually much better founded ; especially, where degrees of latitude , *are called for as boundaries ? If the parties, “ with full and equal -* knowledge of all circumstances,” compromised and settled a doubtful construction of the Massachusetts charter, and in which they were engaged nearly ten years ; why should this court go further into the matter, at the hazard of encouraging litigation in so many other quarters ? I will, for the present, refrain from entering into the inquiry, how far such a mistake of law, in construing a private instrument, could be inquired into by a court of chancery, in a suit between man and man ; nor what help the mistake of law (if any exists) could derive from the facts apparent by the bill, unless the statement of the proposition should suggest the answer. Nor will I attempt to draw the marked line of distinction between such private agreement, and a public treaty, by state with state ; in regard to the difficulty of going into matters of mistake, usually not predicable of a treaty. On consideration of the plea filed in this case by the defendant, and of the arguments of counsel thereupon had, as well in support of as against the said plea, it is now here ordered by this court, that the said plea be and the same is hereby overruled; and it is further now here ordered by this court, that the defendant answer the bill of complaint, as amended, on or before the first day of the next term. 234 1840] OF THE UNITED STATES. *282 *Albert P. De Valengin’s Administrators, Plaintiffs in error, v. John H. Duffy, Defendant in error. Legality of contract.—Covering belligerent property.—Responsibilities of executors.—Assets. It has been frequently held, that the device of covering property as neutral, when in truth it was beiligerent, is not contrary to the laws of war or of nations; contracts made with underwriters . in relation to property thus covered, have always been enforced in the courts of a neutral country, where the true character of the property, and the means taken to protect it from capture, have been fairly represented to the insurers ; the same doctrine has always been held, where false papers have been used to cover the property, provided the underwriter knew, or was bound to know, that such stratagems were always resorted to, by the persons engaged in that trade. If such means may be used to prevent capture, there can be no good reason for condemning with more severity, the continuation of the same disguise, after capture, in order to prevent the condemnation of the property, or to procure compensation for it, when it has -been lost by reason of the capture. Courts of the capturing nation would never enforce contracts of that description; but they have always been regarded as lawful in the courts of a neutral country. Whatever property or money is lawfully recovered by an executor or administrator, after the death of his testator or intestate, in virtue of his representative character, he holds as assets of the estate,; and he is liable therefor, in such representative character, to the party who has a good title thereto. The want of knowledge, or the possession of knowledge, on the part of the administrator, as to the rights and claims of other persons, upon the money thus received, cannot alter the rights of the party to whom it ultimately belongs. The owner of property or of money received by an administrator, may resort to the administrator * in his personal character, and charge him, de bonis pTopriis, with the amount thus received ; he may do this, or proceed against him as executor or administrator, at his election. But whenever an executor or administrator, in his representative character, lawfully receives money or property, he may be compelled to respond to the party entitled, in that character; and will not be permitted to throw it off, after he has received the money, in order to defeat the plaintiff’s action.1 In the case of a factor who sells the goods of his principal in his own name, upon a credit, and dies before the money is received, if it is afterwards paid to the administrator, in his representative character, the creditor would be entitled to consider it as assets in his hands; and to charge him in the same character in which he received it. The debtor, that is to say, the party who purchased from the factor, without any knowledge of the true owner, and who paid the money to the administrator, under the belief that the goods belonged to the factor, is unquestionably discharged by this payment; yet he cannot be discharged, unless he pays it to one lawfully authorized to receive it, except only in his representative character. Error to the Circuit Court of Maryland. In the circuit court of Maryland, John H. Duffy, the defendant in error, instituted a suit against the -administrators of Albert P. De Valengin, for the recovery of a sum of money which he claimed to belong to him, being a portion of thie indemnity paid by the government of Brazil, for the capture and loss of the brig President Adams, by a Brazilian cruiser, in 1828. John H. Duffy, a citizen of the United States, domiciled at Buenos Ayres, m 1828, shipped a quantity of hides, and other articles of merchandise, in 1828, on board the brig President Adams, commanded and part owned by -Albert P. De Valengin, a citizen of Baltimore, *for Gibraltar. The r*gg$ government of Brazil and that of Buenos Ayres were then at war L bor the better security of the property from Brazilian capture, the property -Was shipped in the name of De Valengin, and soon after she sailed, she was 1 And see Taylor v. Benham, 5 How. 233. 235 283 SUPREME COURT [Jan’y De Valengin v. Duffy. captured by an armed vessel of Brazil, and carried into Monte Video. There, both vessel and cargo were totally lost. Under an agreement between John H. Duffy and Captain De Valengin, a claim for the cargo as well as the vessel was made by him, on the government of Brazil, for indemnity. The ownership of John H. Duffy was concealed in this application, as his property was liable to capture by the cruisers of Brazil ; he being domiciled at Buenos Ayres. Captain De Valengin died before anything was recovered from the government of Brazil for the President Adams and cargo ; and a certain James Neale, who had become his administrator, under letters of administration granted in Maryland, prosecuted the claim as the representative of De Valengin ; and was, at length, paid the indemnity in Baltimore, by the aid of Mr. James Birkhead, of Rio de Janeiro ; who remitted it to him from that place. The proceeds of the property remitted by Mr. Birkhead, were returned in an inventory filed by Mr. Neale, as administrator, in the orphans’ court, at Baltimore, as the estate of De Valengin. A suit for the recovery of the amount claimed by John II. Duffy, was instituted in the circuit court of the United States against James Neale, as the administrator of De Valengin ; and he having died before the trial of the cause, and the plaintiffs in error having taken out letters of »administration, de bonis non, to the estate of De Valengin, they were summoned, and appeared and took defence in the action. In the declaration, the only count applicable to the controversy between the parties to the suit, was that for money had and received by James Neale, the administrator of De Valengin, for the use of the plaintiff. On the issues of non assumpsit and plene admin-istravit, the jury found for the plaintiff on the first, and for the defendants on the second count. The circuit court entered a judgment on the first plea for the amount found by the jury, $14,013.67 ; the judgment to bind assets. From this judgment, the defendants prosecuted their writ of error. On the trial of the cause in the circuit court, the defendants took a bill of exceptions to the decisions of the court, on six different propositions or prayers, submitted by their counsel for the opinion of the court. The bill of exceptions contained the whole evidence in the cause. All the prayers of the counsel for the defendants were refused by the court. The opinion of the supreme court on the matters presented under the writ of error, was given on two propositions ; into which all those submitted in the circuit court were considered to be resolved. *2841 1’ That the agreement between Captain De Valengin and John *H. -* Duffy, under which De Valengin was to claim remuneration from the Brazilian government, for the loss of the brig President Adams and her cargo, on the ground of its being nentral property ; when, in truth, the cargo was the property of John H. Duffy, and therefore, belligerent, and liable to capture by the laws of nations, was fraudulent and immoral; and that the courts of justice of the United States would not assist a party to recover money due on such agreement. 2. That if the money belonged to John H. Duffy, the action would not lie against Neale, as administrator, nor the money be assets in his hands of De Valengin’s estate ; that his return to the orphans’ court could not alter the character of the transaction ; and this suit ought to have been continued against Neale’s administrator, and not against the representatives of De Valengin. 236 1840] OF THE UNITED STATES. 28 4 De Valengin v. Duffy. The case was submitted to the court, on printed arguments, by McMahon ' and Johnson, for the plaintiffs in error ; and by Williams, for the defendant in error. On the first proposition, as stated by the circuit court in its opinion : the counsel for the plaintiffs in error contended, that the alleged agreement between John H. Duffy, the defendant in error, and Captain De Valengin, by which the latter was to prosecute the claim on the Brazilian government, for indemnity for the loss of the brig President Adams and her cargo, representing the whole property to belong to him, and, as such, not liable to capture ; proposes nothing more or less than the case of two persons conspiring to cheat a third party out of his property. The object of the agreement was merely to extract money from the third party ; and this was to be accomplished by conspiring to make a false and fraudulent representation of an injury done to one of them, who, in fact, had sustained no injury ; and this falsely alleged injury is made the sole basis of the payment by the third party. The verdict of the jury admits that the payment was made only in consequence of the false and concerted misrepresentations ; and would not have been made, if the truth had not been suppressed by the conspiracy. It is contended, that such an agreement will be held fraudulent everywhere ; and that, in such a case, the fraud has no locality. If two individuals were to conspire, in a foreign country, to obtain money from a third party, either by highway robbery or theft, or by cheating of any description ; and under the conspiracy, one of them were to obtain the money of the third party ; it would scarcely be contended, that under such an agreement, the other could claim from his associate in the conspiracy, a share of the plunder, through the instrumentality of a court of justice. It is contended, that there is no difference between such a case, and a conspiracy to cheat a government ; and that such a conspiracy is essentially different, as it regards its validity in our courts, from contracts made for the purpose of evading the revenue laws, or the mere commercial regulations *of a foreign country ; when to invalidate such a con- pOgg tract would be substantially to enforce such laws and regulations. L It is contended also, that not only was such an agreement void ; and that thereby the principal fact on which the court instructed the jury in favor of the plaintiff in the circuit court was removed from the case ; but that the existence of such an agreement necessarily prevented a recovery from the plaintiffs in error ; as it would have precluded a recovery against De Valengin, if he had obtained the money from the Brazilian government. The case put, on the whole of the proof of the defendant in error, established this fraudulent agreement, and showed that the money had been obtained by false documents, furnished by John H. Duffy, or obtained by his aid and with his privity. The property thus coming into the possession of the administrator, the effect of this action was and is, to repudiate the plaintiff’s own fraudulent documents, evidencing title in De Valengin ; and to reclaim the property, by force of the agreement to pay over the money to him, when recovered. The action could only be maintained upon the agreement to pay over the money, when received—he having parted with the title, for the fraudulent purpose ; this agreement to pay over was a part and parcel of the corrupt 237 285 SUPREME COURT [Jan’y De Valengin v. Duffy. and fraudulent agreement, which could not be severed from the latter, nor established without proof of it. The case, therefore, fell within the scope of the well-established principle, “ that when recovery cannot be had, except by proof of the illegal or corrupt agreement, or through the medium of it, it cannot be had at all.” The counsel for the plaintiffs in error also contended, that the proof of the fraudulent, agreement showed conclusively that the defendant in error had no title to the money sought to be recovered ; that by his own showing, the title to it was in the Brazilian government; that the money sought to be recovered was not, and never had been, his property, or the proceeds of his property ; but was, on the contrary, a sum of money originally belonging to the Brazilian government, and obtained by fraud from it; and the proof of the fraud furnished by himself, and shown in the agreement supposed by the prayer, established that the title was still in the said government, and not in the defendant in error. Upon the second proposition, as stated in the opinion of the court, that the action would not lie against Neale, as administrator, nor the money be assets in his hands, of the estate of De Valengin ; that the return of Neale to the orphans’ court cannot change the character of the transaction ; and that the action should have been continued against Neale’s administrator, and not against the plaintiffs in error—the counsel for the plaintiffs in error contended : The only pretence of claim against the estate of De Valengin and the plaintiffs in error, as administrators de bonis non of his estate, is founded on the allegation, that Neale, in his lifetime, received the proceeds of property which did not belong to De Valengin, but in fact belonged to the defendant 'n error> John H. Duffy ; and had *wrongfully carried it into the J estate of which he was administrator. The administrator could not, by a wrongful receipt or conversion of property which did not belong to the intestate, create a debt against the intestate, or charge against the estate of the intestate, which enables the owner of the property to come in as a general creditor against the estate. The administrator alone is personally liable for such wrongful receipt or conversion ; even where the property has gone to the benefit of the estate. This is established by numerous and uncontradicted decisions, which settle it beyond controversy, that upon a count for money had and received by an administrator, no other judgment can be rendered than the judgment de bonis propriis ; and that such a count cannot be joined with any counts on an indebtedness of the intestate, or with any indebtedness of the administrator as such ; such as money paid for the use of the estate, &c., which does create a debt against the estate. Cited, Jennings v. Newman, 4 T. R. 348 ; Brigden v. Parkes, 2 Bos. & Pul. 424 ; Powell v. Graham, 7 Taunt. 580 ; Ashby v. Ashby, 7 Barn. & Cres. 444 ; I Chit. Prec. 46, note; Reynolds v. Reynolds, 3 Wend. 240 ; Sumner v. Williams, 8 Mass. 198. Even if there was any remedy against the estate, in such a case, it would be found only in the right to follow and reclaim the specific property so wrongfully carried into the estate, by a proceeding for the specific recovery of it, or by a special claim against the estate, founded on the. allegation that the property had been carried into the estate and appropriated to its uses : and this, even if the revovery could not be had against the estate, 238 1840] OF THE UNITED STATES. 286 De Valengin v. Duffy. through the medium of the mere common count for money had and received by the administrator. There was no foundation for any such claim against the estate, as it was conceded, that Neale died after having sold the property and received the proceeds, and that no part of the said proceeds had ever been paid over to the plaintiffs in error, or accounted for to them, either by Neale in his lifetime, or by his administrators since his death ; and the plaintiff had, therefore, an ample remedy against Neale’s administrators for the recovery of the money. It was insisted, that the mere return of it, in an inventory, by Neale, could not vary the question ; not only because he could not, by his mere act of charging himself with it to the estate, make the estate a debtor therefor to the owners ; but also because the recovery by title paramount, in an action by Duffy against Neale, or his administrators, would have been a full protection against any claim founded on the mere return in the inventory. There is nothing in the Maryland act of 1820, ch. 174, to change the common-law rules on this subject (as was supposed in the court below), or even to bring it within the operation of that act as expounded by the courts of Maryland, in Sibley v. Williams, 3 Gill & Johns. 63-4 ; and that there was no evidence in the cause, to show that the money recived by Neale *on the sales, was in such a predicament, that the plaintiffs in error r4! or administrators de bonis non could have pursued and recovered I 4 the money, according to the construction of that act in the case just referred to ; and that the plaintiff’s remedy as to assets, in such a predicament, was aginst Neale’s estate, or on his bond. Williams, for the defendant in error.—By the laws of Maryland, administrators de bonis non are entitled, and their duty requires them, to demand from the legal representatives of the former administrator, the delivery over to them of all bonds, notes, accounts and evidences of debt, and to require the payment over of all money, belonging to the original estate. And such bonds, &c., and money, are assets in the hands of the administrators de bonis non. Laws of Maryland, 1798, ch. 101, sub-ch. 14, § 2 ; 1820 ch. 174, § 3-5. It is, accordingly, not only the right, but the duty, of the plaintiffs in error, to demand from Neale’s representatives the money and property, admitted by him, in his lifetime, to be in his hands, as the estate of De Valengin. The representatives of Neale cannot clJim this property as a part of his estate. Nor can the new administrators of De Valengin reject it, as forming no part of De Valengin’s estate. If the administrators de bonis non have neglected, and are neglecting, to perform their duty, in not calling on Neale’s representatatives for a delivery over of the property of their intestate ; they can be compelled, by application to the proper tribunal, to discharge their duty in this particular. In the meantime, it cannot be an objection, to be urged by the delinquent parties themselves, that they have failed in their duty. Nor, surely, ought it to work a loss or an injury to Duffy, that he has presumed they have fulfilled, or will fulfil, the obligations prescribed by law in this respect. And, further, if Duffy had the alternative, as he doubtless had, under e circumstances of this case, to treat Neale in his individual character as is debtor ; he most clearly had a right to embrace the more disadvantageous a ternative of regarding De Valengin’s estate as his debtor. In adopt- 239 287 SUPREME COURT [Jan’y De Valengin v. Duffy. ‘ • ing the latter alternative, as has been before remarked, it cannot belong to the plaintiffs in error to falsify Neale’s admission ; and deny that to be their intestate estate, which the first administrator declares on oath to be such. There is as little grace, as there is law, in placing themselves in such attitude. 2 Wms. Ex. 1086 ; 1 Taunt. 322. As to the assumption of the counsel for the plaintiffs in error, that the contract between De Valengin and the defendant was fraudulent and immoral, under which the indemnity for the cargo of the President Adams was claimed from the Brazilian government, and therefore, cannot be made the subject of a suit in a court of the United States ; the counsel for the defendant in error said, that it assumes that in a court of the United States, *9RR1 ^efween citizens of the United *States, an agreement cannot be J enforced, which seeks to guard bond fide American property from seizure by one belligerent power that is at war with another ; both of them being at peace with the United States. The device practised in this case, by placing the property in the name of the master, is not forbidden either by the laws of nations, the laws of war, or the laws of morality. The residence of Duffy in Buenos Ayres, which imposes upon him a temporary allegiance to one of the belligerent parties, may subject his property, if captured, to condemnation in the courts of the other. But if the property is restored or indemnified for, either because the capturing power chooses to waive its right to condemn, or because the residence of its true owner is unknown, it ought clearly to inure to the benefit of the true owner against all the rest of the world. It would be monstrous, and against all law and justice, to allow the other contracting party, who has participated in the seizure, to claim that as his own, which he admits to be another’s ; and which he has promised to account for, when received. 1 Bos. & Pul. 3 ; 7 Wheat. 283 ; 8 Ibid. 294. The cases relied on by the defendants below, are irrelevant to the points in issue. They chiefly relate to controversies between a neutral and a belligerent, as 2 Dall. 34; 1 Kent’s Com. 143 ; 7 Wheat, app’x, 27 ; Story’s Confl. L. 214, or to cases of insurance, where there was a concealment of material facts, as 3 W. C. C. 391 ; 2 Phil. Ins. 130. Taney, Ch. J., delivered the opinion of the court.—This case comes here, upon a writ of error to the circuit court for the district of Maryland. It appears from the record, that John II. Duffy, an American citizen, being engaged in commerce, and domiciled at Buenos Ayres, shipped a cargo of hides and lard to Gibraltar, on board the brig President Adams, in 1828. Buenos Ayres was then at war with Brazil. The President Adams was an American vessel; and De Valengin, her master, was a citizen of the United States ; he was also part-owner of the vessel. In order to protect the cargo from capture by the Brazilians, it was shipped as the property of De Valengin ; and the bill of lading, and other papers in relation to it, were made out in his name. The brig was, however, captured on her voyage by a Brazilian cruiser, and was wrecked ; and the vessel and cargo totally lost, near Monte Video, while in possession of the captors ; who were endeavoring to carry her into port. De Valengin being the ostensible owner of the cargo, he, with the consent of Duffy, prosecuted a claim for remuneration from the Brazilian government; insisting that the propeitj 240 1840] OF THE UNITED STATES. 288 De Valengin v. Duffy. belonged to him ; that it was neutral property, and therefore, unlawfully captured. De Valengin died, before he recovered anything ; and after his death, James Neale took out letters of administration on his estate, r*9oq *in the city of Baltimore, and continued to prosecute the claim, upon L the ground that the property was De Valengin’s ; and at length succeeded, in obtaining compensation for it from the Brazilian government. The money was paid to Neale’s agent, at Rio de Janeiro, and invested in coffee, • •and shipped to him to Baltimore ; where he received and took possession of it, as property belonging to De Valengin’s estate, and as his administrator. It was duly appraised as the.property of De Valengin, and returned as such by Neale, to the orphans’ court, in January 1834 ; and afterwards was sold to him, and the money received. It does not appear from the evidence, whether Neale had or had not any knowledge of the interest of Duffy in the cargo, while he wras prosecuting the claim against the Brazilian government ; or when he received the compensation for it. In March 1834, Duffy brought suit against Neale for the money he had thus received. The suit was against Neale, as administrator of De Velen-gin. In 1836, Neale died, the suit being still pending ; and after his death, process was issued against the present plaintiffs in error, who are the admii> istrators de bonis non of De Valengin, in order to make them defendants to the suit which he had instituted against Neale, in his lifetime, as administrator as aforesaid. The declaration was amended by the plaintiff, after the appearance of the administrators de bonis non ; and the only count applicable to the case, as it appears in the testimony, was that for money had' and received by Neale, as administrator of De Valengin, to and for the use of the plaintiff. The defendants pleaded non assumpsit andtplene adminis-travit, upon which issues were joined ; and the jury found for the plaintiff on the first issue, and for the defendants on the second ; and the judgment was entered for the amount found due by the jury, in the usual form, to bind assets when they shall arise. At the trial, several instructions were asked for by the defendants, which were refused by the court. They may all, however, be resolved into two. 1. That the agreement between De Valengin and Duffy, to claim remuneration from the Brazilian government, upon the ground, that it was neutral property, when in truth it was Duffy’s, and therefore, belligerent, and liable to capture by the laws of nations, wras fraudulent and immoral; and that the courts of justice of this country will not assist a party to recover money due on such an agreement. 2. That if the money belonged to Duffy, the action would not lie against Neale, as administrator, nor the money be assets in his hands, of De Valengin’s estate ; that his return to the orphans’ court cannot alter the character of the transaction ; and that the suit ought to have been continued against Neale’s administrator, and not against the representatives of De Valengin. The first question may be disposed of in a few words. It has been frequently held, that the device practised in this case, of covering the property as neutral, when in truth it was belligerent, *is not contrary to the .. laws of war, or the laws of nations. And contracts made with under- L writers m relation to property thus covered, have always been enforced in the courts of a neutral country, when the true character of the property and the means taken to protect it from capture, have been fairly represented to 14 Pet.—16 241 290 SUPREME COURT [Jan’y- De Valengin v. Duffy. the insurer. The same doctrine has always been held, where false papers were used to cover the property ; provided, the underwriter knew, or was bound to know, that such stratagems were always resorted to by persons engaged in that trade. And if such means may be used to prevent a capture, there can be no good reason for condemning, with more severity, the-pontinuation of the same disguise, after capture, in 'order to prevent the condemnation of the property, or to procure compensation for it, when it has been lost by reason of the capture. It is true, the courts of the capturing nation would never enforce contracts of that description ; but they have always been regarded as lawful in the courts of a neutral country. The second question is one of more nicety, and the cases are not entirely reconcilable to each other. There are, doubtless, decisions which countenance the doctrine, that no action will lie against an executor or administrator, in his representative character, except upon some claim or demand which existed against the testator or intestate in his lifetime ; and that if the claim or demand wholly accrued in the time of the executor or administrator, he is liable therefor only in his personal character. But upon a full consideration of the nature, and of the various decisions on the subject, we are of opinion, that whatever property or money is lawfully recovered or received by the executor or administrator, after the death of his testator or intestate, in virtue of his representative character, he holds as assets of the estate • and he is liable therefor, in such representative character, to the party who has a good title thereto. In our judgment, this, upon principle, must be the true doctrine. In the case of a factor, who sells the goods of his principal, in his own name, upon a credit, and dies before the money is received, if it is after- ■ wards paid to the administrator, in his representative character ; would not the creditor be entitled to consider it as assets in his hands, and to charge him in the same character in which he received it ? The want of knowledge, or the possession of knowledge, on the part of the administrator, as to the rights or claims of other persons upon the money thus received, cannot alter the rights of the party to whom it is ultimately due. The debtor, that is to say, the party who purchased from the factor, without any knowledge of the true owner, and who pays the money to the administrator, under the belief that the goods belonged to the factor himself, is unquestionably discharged by this payment. Yet he cannot be discharged, unless he pays it to one lawfully authorized to receive it; and the party to whom he pays cannot be lawfully authorized to receive, except only in his representative *9011 c^arac^er- he is *authorized to receive in that character, why J should he not be liable in that character ? Again, if a note had been taken by the factor, payable to himself, and after his death, his administrator sued upon it in his representative capacity, and recovered the money ; would he not be liable to the principal, in the same character in wThich he had, by the judgment of a court, recovered the money ? It would be difficult to reconcile the contrary docrine to any sound principles of reason, or to find any countenance for it in analogous cases. We do not mean to say, that the principal may not, in such cases, resort to the administrator, in his personal character, and charge him, de bonis propriis, the amount thus received. We think he may take either course, at his election ; but that whenever an executor or administrator, in his representative character, aw- 242 1840] 291 OF THE UNITED STATES. De Valengin v. Duffy. fully received money or property, he may be compelled to respond to the party entitled, in that character; and shall not be permitted to throw it off, after he has received the money, in order to defeat the plaintiff’s action. In this case, De Valengin was the bailee of the goods shipped by Duffy, and had a special property in them ; and it was his duty to take all proper measures for their safety and preservation. He had a right to sell and transfer the goods, in his own name, and as his own property. The Brazilian government, by agreeing to pay the money, admitted that the debt was justly due to him, on account of the destruction of this cargo. Whether that government was deceived or not, is another question ; and does not affect the point now to be decided. The admission of the debt as due to De Valengin, places this case upon the same principles with that of a factor before mentioned, who had sold the property of his principal, in his own name, and died before the receipt of the money. If the administrator is lawfully entitled to receive it, in his representative character, and does so receive it, he is liable, in the same character, to the party entitled. Neale prosecuted the claim, and received the money, as the administrator of De Valengin ; he must account for it in the same character. If this transaction had taken place before the act of assembly of Mary-lany, of 1820, ch. 174, the suit must, unquestionably, have been continued against Neale’s representatives, and could not have been sustained against the administrators de bonis non of De Valengin ; because the property which Neale had received as administrator was converted into money in his lifetime, and must, therefore, have been accounted for by his administrator, and would not have passed to the administrator de bonis non of the former intestate. But by the third section of the act of 1820, ch. 174, the administrator de bonis non is entitled to the bonds, notes, accounts and evidences of debt, which the deceased executor or administrator may have taken, and to the money in his hands in his representative character ; and he is authorized to recover them in the manner there pointed out. And the money now in controversy being, as we have already said, lawfully in the hands of Neale, in his representative character, the „ administrators de bonis non are entitled to it; and as they are author- *-ized to recover the fund out of which the money due to Duffy is to be paid, he had a right to make them parties to the suit which he had instituted against the first administrator, and to continue it against them. They are not injured, nor in any manner placed in danger, by this proceeding. For they are not liable, unless the money is recovered from Neale’s representatives or sureties ; provided there is no negligence or breach of duty on their part. The motion in arrest of judgment offered in the circuit court, if it had been objectionable upon other grounds, was evidently too late, by the rules of the court ; and, on that account, properly overruled. The judgment of circuit court is, therefore, affirmed. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Maryland, and was argued by counsel : On consideration whereof, it is ordered and adjudged y this court, that the judgment of the said circuit court in this cause be tne same is hereby affirmed, with costs and damages, at the rate of six Per centum per annum. 243 *293 SUPREME COURT [Jan’y *Guy C. Irvine, ïor the use of The Lumberman’s Bank at Warren, v. Nathaniel A. Lowry. Jur isdiction.—Citizenship of stockholders. —Negotiable paper. An action was brought by foreign attachment, in the court of common pleas of Warren county, Pennsylvania, in the name of a citizen of Pennsylvania, for the use of The Lumberman’s Bank, at Warren, Pennsylvania, against a citizen of New York; the suit was on a note given by the defendant to the plaintiff, to be paid “ in the office-notes of the Lumberman’s Bank at WarrenSome of the stockholders of the Lumberman’s Bank at Warren, were citizens of the state of New York, The defendant appeared to the action, by counsel, and having given bond with surety to the court of common pleas, removed the cause to the circuit court of the United States for the western district of Pennsylvania; a motion was made in the circuit ~ court, to remand the cause to the court of common pleas of Warren county, the circuit court having no jurisdiction of the cause, on the ground, that the real party in the suit was the Lumberman’s Bank, at Warren, an aggregate corporation, some of the stockholders of the bank being citizens of the state of New York. It was held, that the circuit court had jurisdiction of the case. The decisions of the supreme court have been uniform, and as declared at the present term in the case of the Commercial and Railroad Bank of Vicksburg v. Slocomb, that the courts of the * United States cannot exercise jurisdiction when some of the stockholders in a corporation established in one state are citizens of another state of which the party sued by the corporation is a citizen. A note to be paid “ in the office-notes of a bank,” is not negotiable, by the usage or custom of merchants; not being a promissory note, by the law-merchant, the statute of Anne, or the kindred act of assembly of Pennsylvania, it is not negotiable by indorsement;1 and not being under seal, it is not assignable by the act of assembly of Pennsylvania on that subject, relating to bonds. No suit could be brought upon it, in the name of the indorser; the legal interest in the instrument continues in the person in whose favor it was drawn, whatever equity another may have to claim the sum due on the same ; and he only is the party to a suit at law on the instrument. Certificate of Division from the Circuit Court for the Western District ; of Pennsylvania. On the 6th of May 1839, a writ of foreign attachment was issued out of the court of common pleas of Warren county, Pennsylvania, in the name of Guy C. Irvine, for the use of the Lumberman’s Bank at Warren, against Nathaniel A. Lowry, requiring bail in $80,000. The action was founded on a promissory note, in the following terms : “ $53,000. Warren, Pa., Sept. 6, ’37. “ Three months after date, I promise to pay to the order of Guy C. Irvine, Esq., fifty-three thousand dollars, in office-notes of the Lumberman’s Bank at Warren, and payable at their banking-house in Warren. Indorsed on side—Guy C. Irvine. N. A. Lowry.” The sheriff of Warren county attached certain real estate in the county; and also returned that he had attached the goods and chattels of Nathaniel A. Lowry, in the hands of certain persons named in the return. Among the garnishees was Guy C. Irvine. * *On the 24th of October 1839, Nathaniel A. Lowry, the defendant, presented a petition to the court of common pleas of AV arren county 1 A note for a certain sum, payable in current bank-notes, is not negotiable. Fry v. Rousseau, 3 McLean 106. s. p. Judah v. Harris, 19 Johns. 144 ; Leiber v. Goodrich, 5 Cow. 186. So, a note executed in Michigan, payable in New York, in New York funds, is not negotiable. Harbrook v. Palmer, 2 McLean 10. s. p. McCormick v. Trotter, 10 S. & R. 94; Wright v. Hart, 44 Penn. St. 454 ; Thompson v. Sloan, 23 Wend. 71. 244 1840] OF THE UNITED STATES. 294 Irvine v. Lowry. stating that he was, at the commencement of the action, and at the time of filing the petition, a resident and citizen of the state of New York ; and that Guy C. Irvine, the plaintiff in the suit, was, and was at the commencement of the suit, a citizen of the state of Pennsylvania ; and asking tfe court to accept the security offered for entering his appearance in the circuit court of the United States, and in all things complying with the acts of congress in such cases made and provided ; he prayed the court to proceed, no further in the cause, and to allow the removal of the cause to the circuit court of the United States for the western district of Pennsylvania. The court of common pleas granted leave for the removal of the cause to the circuit court ; and the defendant gave a bond with surety, for the entry of the cause in the circuit court. On the same day on which the petition of Nathaniel A. Lowry was presented to the court of common pleas of Warren county, the affidavits of Robert Falconer, President of the Lumberman’s Bank at Warren, and of Walter W. Hodges, were filed. The affidavit of Mr. Falconer stated, that at the date of the note on which the action was founded, he was president of the bank, and the note was received from the defendant, at the time it bore date, as a security for his previous indebtedness to the institution ; and that Guy C. Irvine bad not then, nor at any time since, any interest in the said note, except as guarantor for the payment of the same, and the solvency and sufficiency of the maker of the note. The affidavit of Mr. Hodges stated, that William Hall, Vine Elderken, Brown & Buckland, Starkweather & Brown, and sundry other persons, were stockholders in the Lumberman’s Bank at Warren ; and at the time of the institution of the suit were citizens of the state of New York, residing in that state. ’ The case being in the circuit court of the United States for the western district of Pennsylvania, at the November sessions of the court, Biddle, for the plaintiff, moved to remand the cause to the court of common pleas of Warren county, for want of jurisdiction. On hearing of this motion before the circuit court, MeCandles*, the counsel for the Lumberman’s Bank at Warren, produced to the court an act of the assembly of Pennsylvania, passed the 28th of February 1834, for chartering the bank ; also an act of assembly of Pennsylvania, of 21st March 1813, entitled, “ an act to recharter certain banks and it was admitted, that the bank commenced the business of banking at Warren, in Penaisylvania, having been organized under the act of 1824. The counsel for the bank also produced the note on which the «uit bad been brought. The counsel for the bank stated, and the defendant s counsel admitted, that this .suit was founded on the note. J ; Whereupon, it appearing to the court that this suit is founded on the note' a oiesaid, dated 6th Sept. 1837 ; that Guy C. Irvine was, at the date of the institution of this suit, a citizen «of Pennsylvania, *and that N. A. * ’y WaS’ same date, a citizen of the state of New York ; that $$$ sai ank was erected, and duly organized, at Warren, in Pennsylvania, under '' e act of February 28th, 1834,aforesaid ; and that six persons mentioned in e record, and sundry other stockholders thereof, were, at the date of said 5 citizens of the state of New York; .and due consideration being had of bei ^re^8es.’ c°urt are divided in opinion ; one of the judges thereof 0 opinion, that this court has no jurisdiction of the case ; that the * granted as aforesaid, be made absolute; and the record of this sui^J 245 295 SUPREME COURT [Jan’y Irvine v. Lowry. remanded to the court of common pleas of the county of Warren ; the other judge being of opinion, that the court has jurisdiction of the case ; and that the rule granted as aforesaid be denied.” The judges of the circuit court certified this division of opinion to the supreme court of the United States. The case was argued by J/c Candless, for the plaintiff ; and by Marvin, for the defendant. McCandless contended, that Guy C. Irvine is a mere nominal party in the suit, except as guarantor of the sufficiency of Lowry, the defendant. He is one of the garnishees in the attachment; and he is a competent witness in the cause, under the decisions of the courts of Pennsylvania. The nominal plaintiff, who assigns an obligation, is a competent witness, in an action against the obligor. 9 Serg. & Rawle 20 ; 2 Bro. 171. The courts of Pennsylvania, even after suit brought, allow a party on the record to assign the action, depositing with the clerk enough to cover the costs of the suit. 3 Binn. 306. The reason of this rule is, that in Pennsylvania there are no courts of chancery ; and the assignee of a chose in action is, therefore, compelled to bring his suit in the name of the assignor. So also a bankrupt, who has obtained his certificate, and released his claim to the surplus of his estate, may be a witness. 4 Dall. 137 ; 2 Ibid. 172. Cited also, 7 Serg. & Rawle 116 ; 3 Rawle 407 ; Pet. C. C. 308. This court have decided the question now depending before it. In Brown v. Strode, 5 Cranch 903, it was held, that the courts of the United States have jurisdiction in a case between citizens of the same state, when the plaintiffs are only nominal, for the use of an alien. Who is the real party in this cause ? It is not Guy C. Irvine, but the Lumberman’s Bank at Warren. This court have said, they would look at the real parties in the cause. In Wormley v. Wormley, 8 Wheat. 421, Mr. Justice Story says, ‘‘this court will not suffer its jurisdiction to be ousted by the mere joinder, or non-joinder, of formal parties.” The converse of the proposition is equally true. It has been incontestably shown : 1. That Guy C. Irvine is not a party, or if a party, is only nominal. 2. That the Lumberman’s * - *Bank is the real party. 3. That this court will look at the real J parties, for the purpose of entertaining or excluding jurisdiction. This is the case of a corporation aggregate, part of whose stockholders live in the same state as the defendant. This court has decided, that a corporation aggregate cannot be a citizen, and cannot litigate in the courts of the United States ; unless in consequence of the character of the individuals who compose a body politic. Mope Insurance Company v. Board-man, 5 Cranch 57 ; Bank of the United States v. Deveau^, Ibid. 61, Breithaupt n. Bank of Georgia, 1 Pet. 238 ; 1 Paine 410; Corporation of New Orleans v. Winter, 1 Wheat. 91 ; 1 W. C. C. 146 ; Bank of Augusta v. Earle, 13 Pet. 519 ; 1 Kent’s Com. 324-6 ; 3 Cranch 267 ; Commercial and Railroad Bank of Vicksburg v. Slocomb (ante, p. 60^. Another question arises in this case. This was a foreign attachment a proceeding in rem. Do the provisions of the judiciary act exten to any actions but those in personam ? (1 U. S. Stat. 79.) The act o con gress gives jurisdiction to the courts of the United States, in cases w ere “ the defendant is an inhabitant, or when he shall be found in the is ric , 246 .1840] OF THE UNITED STATES. 296 Irvine v. Lowry. at the time of serving the process.” Lowry -was not an inhabitant of the western district of Pennsylvania ; nor found there at the time of serving’ the writ. He was, at the time the writ issued, and afterwards, residing in the state of New York. What is the object of the foreign attachment? It is a proceeding against the lands or goods of a defendant, to compel his appearance. Can a party plaintiff compel the appearance of a defendant in the circuit court, by issuing a foreign attachment ? It has been decided that this cannot be done. 2 Dall. 369 ; Sergeant on Attach. 42. If a circuit court of the United States cannot have jurisdiction originally, can it have by the removal of a cause from a state court. It was not intended by the 12th section of the judiciary act of 1789, to extend the jurisdiction of the courts of the United States over causes brought before them on removal, beyond the limits prescribed to them originally. Conklin’s Treatise 78. No suit can be removed to the national courts, which might not, by the constitution, have been originally commenced in those -courts. As to the construction of the note on which the action was brought, the ■counsel cited, 1 Pet. 489 ; 3 Chitty on Commercial and Maritime Law 107. Marvin, for the defendant.—The question raised in this case has never yet been decided. Four questions have been presented in the argument for the plaintiff; but one only is depending. Has the circuit of the western district of Pennsylvania jurisdiction of the cause ? Is the Lumberman’s Bank at Warren, the plaintiff in the cause, *or is Guy C. Irvine the 1-^297 plaintiff ? On the decision of this point, the case must be decided. L Guy C. Irvine is a citizen of Pennsylvania, and Nathaniel A. Lowry is a citi- , zen and resident of the state of New York; and those are the parties on the record. This brings the case within the provisions of the constitution of the United States. But, it is said, the court will go beyond the parties named in the suit, and inquire who is beneficially interested. That it is not the only party to the record, which will give or exclude jurisdiction ; but the party really interested, and he only, is in the contemplation of the act of congress. In this case, it is said, the action is brought for,the bank, because this is so stated on the record. But the act of congress looks only to the parties on the record. Pennsylvania is the only state in the Union in which actions in this form are brought. In New York, no such form of proceeding is known. Would the court, in a case brought here from New York, and standing on the record between parties subject to the jurisdiction of the court, inquire who are the persons really interested in the controversy ? Was it necessary in this case to state for whose use the action was brought ; and if it was, could issue be taken upon it ? If this could be, a collateral issue would be raised ; the regular inquiry in the cause would not be pursued. In all other states, the courts will take care that r the party really interested has the money which may be recovered. This will be done by the equitable powers of the courts. The legal party : m the suit is Guy C. Irvine ; and the circuit court, on its law side, ’ will look only to the legal party. The note is not assignable by indorsement, for it is not a negotiable instrument. It is not given for the payment of money, but for the office-notes of the Lumberman’s 247 297 SUPREME COURT [Jan’y Irvine v. Lowry. Bank. It is not, therefore, within the statutes which make promissory notes negotiable. It is said, that Guy C. Irvine is not a party in this cause, because he may be a witness. But if he can be a witness, which is denied, it does not fol-.low, that he is not a party. Does the jurisdiction of the court of the United States depend on the legislature, or on the decisions of the courts of the states ? In many of the states, a party is a witness to an account ; and according to the rule now set up, this would deprive the courts of the United States of jurisdiction in a case between citizens of different states, when an account was the subject of contestation. The cases cited by the counsel for the plaintiff go on the principle, that the party has no interest in the cause, the costs having been paid, and his interest assigned. But in all these cases, he still continues the plaintiff in the cause. The law is not,, however, as stated by the plaintiff’s counsel. It has been decided by this court, that a party who is a plaintiff in a cause, cannot, by an assignment of * _ the action, and the payment of the costs, become a witness ; and *the- -* decision of the circuit court of Pennsylvania has been solemnly overruled. Scott v. Loyd, 12 Pet. 145. The case cited from 8 Wheat. 421, Wormley v. Wormley, was a case in equity ; and it rested on its special circumstances. The case cited from 5 Cranch 303, was one in which the bond sued upon was taken officially, for the use of creditors ; the bond had been given to a public officer, for the use of creditors. This was, no doubt, averred in the declaration. The real character of the parties was thus apparent on the record. The real party was the creditor. As to the removal of the cause to the circuit court, it being a foreign attachment, the counsel for the defendant contended, that there is no limitation imposed in the constitution. The act of congress protects suits by parties, not citizens of the same state, or found in the state in which the action, of whatever kind it may be, shall be brought. Act of congress of 1789, § 12 ; Conklin’s Treatise, 78-9. Suits cannot be removed which are not within the constitutional provision. The affidavits made in the court of common pleas of Warren county, were improperly admitted by that court, and should not be regarded here ; nothing in the case can be tried by affidavits of this character. Baldwin, Justice, delivered the opinion of the court.—This suit was instituted in the court of common pleas of Warren county, Pennsylvania, whence it was removed to the circuit court for the western district of thau state, pursuant to the provisions of the judiciary act of 1789, § 12 ; and comes before this court on a certificate of division of opinion between the judges of that court, on a motion to remand the cause for want of jurisdiction. Irvine, in whose name the suit is brought, is a citizen of Pennsylvania , the Lumberman’s Bank of Warren is a corporation chartered by a law of that state, and located at Warren ; part of the stockholders are citizens of New York, of which state the defendant is also a citizen. The suit is brought upon a paper, of which the following is a copy : *{ $53,000. Warren, Pa., Sept. 6, ’37. “ Three months after date, I promise to pay to the order of Guy 248 1840] 298 OF THE UNITED STATES. Irvine v. Lowry. Irvine, Esq., fifty-three thousand dollars, in the office-notes of the Lumberman’s Bank at Warren, and payable at their banking-house in Warren, Pa. Indorsed on side—Guy C. Irvine. N. A. Lowry.” The suit was commenced by the process of foreign attachment, agreeable to the law of Pennsylvania ; the property of the defendant was attached according to its provisions : whereupon, he appeared, and, by his counsel, moved for the .removal of the cause ; and having complied with the requisitions of the judiciary act, the cause was ordered to be removed to the circuit court. *By thus appearing and submitting to the process of attachment, r*9QQ the defendant waived any privilege to which he was entitled by the *-section of the judiciary act, as held by this court in Toland v. Sprague, 12 Pet. 330-1 ; so that on his appearance and entry of bail, the attachment was dissolved, and the cause will thenceforth proce^, as if it had commenced by the ordinary process of the court, served on the defendant within the district. The commencement of the action in the common pleas, by attachment, being expressly provided for in the 12th section of the judiciary act, it must be considered, when removed into the circuit court, as an original one. This brings us to the question raised in the argument of the plaintiff’s counsel, whether that court can exercise any jurisdiction over the case, on the ground, that the defendant, and some of the stockholders of the bank,, are citizens of New York ; which would be a fatal objection to the jurisdiction, if the corporation is to be considered as the plaintiff and sole party in interest. On this subject, the decisions of the court have been uniform, and, as declared in the present term, in the Vicksburg Bank v. Slocomb, have settled this point decisively ; nothing then remains but to ascertain from the record, as certified, whether the bank is the real plaintiff; for if they are not, then as Irvine is admitted to be a citizen of Pennsylvania, and Lowry, of New York, the jurisdiction is undoubted. The paper on which the suit is brought, is not negotiable by the usage or custom of merchants ; it is payable to order ; the promise is to pay so many dollars, but not to pay any certain sum of money ; it is a promise to pay the amount “in the office-notes of the Lumberman’s Bank at Warren,” which are not money, and at most a chattel. Not being a promissory note, either by the law-merchant, the statute of Anne, or the kindred act of assembly of Pennsylvania, it is not negotiable by indorsement; and not being under seal, it is not assignable by the act of assembly on that subject, relating to bonds. The bank, therefore, cannot sue in their own name, in virtue of the indorsement of Irvine in blank ; nor could they so sue, if it was specially indorsed to them ; because the legal right of action would still remain in Irvine, though the equitable interest in the thing promised ™ay have passed to the bank. This case, however, is not of that description;, t e only evidence of any transfer of the contents of the note is the blank indorsement of Irvine, and the affidavit of the president of the bank ; in the atter of which, it is stated, that the note was received by the bank from e defendant, at the time it bears date, as a security for his previous indebtedness thereto ; and that Irvine had not then, or since, any interest in> 249 299 SUPREME COURT [Jan’y Irvine v. Lowry. said note, except as a guarantor for its payment, and the solvency and sufficiency of the maker. In referring to the affidavit, we are not to be understood, that whatever may be its contents, they would influence our decision ; yet, assuming the case to be as there stated, the legal right of action is in Irvine ; the * । paper is not the evidence of an original *debt, contracted by a dis- J count thereof ; or its reception as payment of a pre-existing debt due the bank ; it is only a collateral security, by adding the name of Irvine as indorser. Standing as such to the bank, their rights are derivative through him ; and as the indorsement passes only an equity, the legal interest is in him ; he is the real plaintiff in a court of law, in which legal rights alone can be recognised. This consideration points to the true line of discrimination between this and the case of Browne v. Strode^ 5 Cranch 503 ; which was a suit against an executor, on his administration bond, given to the justices of the peace of the county where the testator died, and who were citizens of the state of Virginia, as well as the defendant. The jurisdiction of the circuit court was sustained, on the ground, that though the plaintiffs and defendants were citizens of the same state, the former were mere nominal parties, without any interest or responsibility; and made, by the law of Virginia, the mere instruments or conduits through whom the legal right of the real plaintiff could be asserted ; as such, their names must be used, for the bond must be given to them in their official capacity; but as the person to whom the debt was due was a British subject, he was properly considered as the only party plaintiff in the action. Whatever right of action existed in virtue of the bond, passed, by the operation of the law of Virginia, directly to the person for whose benefit it was given, through the conduit appointed for that purpose. For such, and kindred cases, the person or officer thus selected by the law as its agent, is not a party to the suit ; and no transfer of the bond or other security to the person interested is necessary, to invest him with a complete legal interest or right of action ; but cases of this description cannot be applied to actions like the present, in which the interest and responsibility of the parties to the paper depends on their contract; and the law neither dissolves or transfers any legal right of action on or to the party who accepts it as security for payment of a’pre-existing debt. We are, therefore, of opinion, that the circuit court has jurisdiction of the case, and direct that it be so certified. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the western district of Pennsylvania, and on the point and question on which the judges of the said circuit court were opposed in opinion, and which was certified to this court for its opinion, agreeable to the act of congress in such cases made and provided, and was argued by counsel: On consideration whereof, it is the opinion of this court, that the said circuit court has jurisdiction of the case. Whereupon, it is ordered and adjudged, that it be so certified to the said circuit cour accordingly. 250 1840] OF THE UNITED STATES. *301 United States, Plaintiffs in error, v. Jacob Knight, Benjamin Knight, Isaac Knight and Edward Knight, Defendants in error. J ail-limits. Action on a bond given to the United States for the liberty of the jail-yard, in Portland, in the state of Maine; the condition of the bond was, that J. K. and B. K. “ should continue true prisoners in the custody of the jailer, within the limits of the jail-yard.” It was agreed by the counsel for the plaintiff and defendants, that J. K. and B. K. had remained within “ the limits of the jail-yard,” as established under the laws of 1787, of Massachusetts, then prevailing in Maine; the limits of the jail-yard having, in October 1798, been extended over the whole county; but had not remained within the limits established on the 29th May 1787, and existing when the act of congress was passed, 4th January 1800, authorizing persons under process from the United States to have “ the jail-limits,” as established by the laws of the state: Held, that the act of congress of 19th May 1828, gives the debtors imprisoned under executions from the courts of the United States, at the suit of the United States, the privilege of jail-limits in the several states, as they were fixed by the laws of the several states at the date of that act. Whatever might be the liability of the officer who took the bond from the defendants, if the jail-limits continued to be such as were established under the law of Massachusetts of 1787; the bond not having been taken under that law, and the condition being different from the requirements of those regulations ; the parties to the bond, the suit being upon the bond, are bound for nothing whatsoever but what is contained in the condition; whether it be or be not conformable with the law. The statute of May 19th, 1828, entitled “ an act further to regulate processes in the courts of the United States,” which proposes only to regulate the mode of proceeding in civil suits, does not divest the public of any right, does not violate any principle of public policy, but on the contrary, makes provision, in accordance with the policy which the government has indicated, by many acts of previous legislation, to conform to state laws, in giving to persons imprisoned under their execution, the privilege of jail-limits, embracing executions at the suit of the United States. Wayman v. Southard, 1 Wheat. 10; and Beers v. Houghton, 9 Pet. 832, cited and affirmed. United States v. Knight, 3 Sumn. 358, affirmed. Error to the Circuit Court of Maine. The United States, in 1838, instituted an action of debt against the defendants in error, on a bond executed by them on the 30th day of January 1838, for the sum of $17,494.04 ; the condition of which was as follows : “ The condition of the above-written obligation is such, that whereas, the said Jacob and Benjamin Knight have been and now are imprisoned in the prison, at Portland, in the said Maine district, by virtue of an execution issued against them on a judgment obtained against them by the said United States, at the district court of the United States for Maine district, which was begun and holden at Portland, within and for the district of Maine, on the first Tuesday of December, a. d. 1837, for the sum of $8462.36, principal, and $161.79 for interest thereon, to *the 19th day of Dec-ember aforesaid, and costs of suit, taxed at $24.47, and also for all ■-legal interest that may accrue on said sum of $8462.36, from the said 19th December, until said judgment shall be fully discharged and satisfied, with one hundred cents more, for one writ of execution, and the officer’s fees and charges for commitment, taxed at $97.40. Now, if the said Jacob Knight and Benjamin Knight, from the time of executing this bond, shall continue true prisoners, in the custody of the jailer, within the limits of the jail-yard, until they shall be lawfully discharged, and shall not depart without the exterior bounds of said jail-yard, until lawfully discharged from said im- 251 302 SUPREME COURT [Jan’y United States v. Knight. prisonment, according to the laws of thé United States in such cases made and provided, and commit no manner of escape, then the said obligation to /be void ; otherwise, to remain in full force.” In this case, the parties in the circuit court agreed to the following statement of facts : “On the 30th day of January last past, Jacob and Benjamin Knight were committed to the jail in the city of Portland, on an execution issued on a judgment in favor of the said United States, against said Jacob and Benjamin ; whereupon, the said Jacob and Benjamin, as principals, and Isaac and Edward Knight, as sureties, gave the bond declared on in this suit ; that said Jacob and Benjamin continued to remain within the limits of the town of Portland, exclusive of the islands, and did not depart therefrom, up to the time of the commencement of this suit, nor have they since departed therefrom ; but neither the said Jacob nor Benjamin, from the time of the execution of said bond, nor afterwards, at any time, lodged cn the night-time within the walls of said jail, but remained at large within the limits of said town of Portland, exclusive of the islands belonging to the same, both day and night. If, upon the foregoing facts, the court are of opinion, that the condition of said bond has been broken by the said Jacob and Benjamin, and that they have made an escape, then the court are to render judgment to be entered, as of said October term, and as on verdict rendered for the said United States ; and if the court shall be of opinion, that the obligation of the bond has not been broken, then judgment to be rendered, in manner aforesaid, for the said defendants.” And each party reserves to themselves the right to a writ of error, to reverse any such judgment, as may, as aforesaid, be rendered by said court in the case. The justices of the peace of the county of Cumberland, on the 29th May 1787, established the “proper boundaries of the jail-yard in the county, to be—beginning at the bottom of Love lane, at low-water mark ; thence up said lane, including the houses on each side thereof, to the northerly side of Back street ; thence down said Back street, including the houses on both sides thereof, to King street ; from thence down said King street, including , the houses on both sides *thereof, to low-water mark ; thence by J low-water mark, to the first bounds, including all the grounds ana buildings within the aforesaid limits.” Afterwards, on the 16th of October 1798, the limits of the jail-yard were extended to “the town of Portland, exclusive of the islands and on the 10th of September, the judges of the court of sessions ordered, “ that the bounds of the jail-yard be extended over the whole county, and to the exterior limits thereof ; which are hereby fixed knd established as the bounds of the jail-yard for the said county of Cumberland.” At the October sessions of the circuit court, judgment, on the facts agreed, was given, that “the obligation of the bond was not broken ;” and the United States prosecuted this writ of error. The case was argued by Gilpin, Attorney-General of the United States, for the plaintiff in error ; and by Evans, for the defendants. Gilpin, for the United States, submitted to the court that the obligation of the bond given by the defendants to the United States was broken : 1. Because they were only entitled, pursuant to the act of congress of 6th January 1800, to the like privileges of the yards or limits of the said jail, 252 1840] OF THE UNITED STATES. 303 United States v. Knight. as persons confined on process from the court of Maine were entitled to at the time that act was passed. (2 U. S. Stat. 4.) 2. Because the privileges of persons'confined on process from the courts of Maine, at the time that act was passed, did not extend to the privilege of being outside of the walls of the jail during the night-time. Mr. Gilpin continued :—The conditions of the bond which the defendants gave to the United States were : 1. That Jacob and Benjamin Knight should continue true prisoners in the custody of the jailer, within the limits of the jail-yard, until they should be lawfully discharged. 2. That they should not depart without the exterior limits of the jail-yard, until lawfully discharged from imprisonment, according to the laws of the United States. 3. That they should commit no manner of escape. A violation of either of these conditions, by Jacob or Benjamin Knight, entitled -tho United States to a judgment for the penalty of the bond. The facts are, that although neither of thorn did depart beyond the limits of the town of Portland, exclusive of the Islands, which constituted the boundaries of the jail-yard, yet neither of them did, at any time, lodge at night, within the -walls of the jail, but both went at large within the boundaries, during the night as well as the day. The circuit court adjudged that this was no breach of either of the conditions of the bond. The correctness of this judgment depends upon the meaning of r4; *“true imprisonment,” and an “ escape” therefrom. A true impris- L onment, under an execution from the courts of the United States, is that which the laws of the United States prescribe, and an act of the prisoner, before his discharge, at variance therewith, is an escape. The United States, not having jails in the states for the custody of their prisoners, recommended to the state legislatures, on the 23d September 1789 (1 U. S. Stat. 96), to make it “ the duty of the keepers of their jails, to receive and safe keep therein, all prisoners committed under the authority of the United States,” until lawfully discharged ; and to subject them to the same penalties as in the case of prisoners committed under the state laws. To this recommendation, Massachusetts, of which Maine then constituted a part, acceded on the 26th February 1790 (1 Laws Mass. 487) ; thus requiring all prisoners committed under the laws of the United States, to be “ received und safely kept ” in the jails of Massachusetts. On the 5th May 1792^ 0 U. S. Stat. 265), congress extended, for a limited period, to persons so imprisoned, “ like privileges of the yards or limits of the jails, ” as persons . confined for debt under judgments of the state courts ; but subject also to the like regulations and restrictions.” These privileges they renewed, also for limited periods, in 1794 and 1796 (Ibid. 370, 482), and finally made them permanent by the act of 6th January 1800. (2 Ibid. 4.) Since then, and previous to the present suit, they have passed no additional act upon the subject. The law, therefore, in regard to the imprisonment of debtors of ' t e L nited States is, that they are to have the same privileges, and be sub- -ject to the same restrictions, while in jail, as debtors under process from the' state courts had or were subject to, on the 6th January 1800 ; that then, and on y then, are they “ truly imprisoned ;” and that the jailer is subject to the penalties attendant on their “ escape,” if he allows them any other privileges, ci relaxes any of those restrictions. What, then, were the privileges and restrictions of an imprisoned debtor 253 304 SUPREME COURT [Jan’y United States v. Knight. in Massachusetts, in 1800? They were, as declared in the act of 21st February 1785 (1 Laws Mass. 221), that he might have “ a chamber and lodging in any of the houses or apartments belonging to the prison, and liberty of the yard within the day-time.” These were the privileges of the debtors, and the restrictions upon them : to lodge in any apartment belonging to the jail, and to be at large within the limits of the yard in the day-time. To lodge elsewhere, or to be set at large, even within the limits of the yard, during the night, was not a “true imprisonmentbut clearly amounted to “an escape.” The words of the law seem too plain to permit a doubt as to this construction ; but if there by any, it is removed by the judicial decisions of the courts of Massachusetts. The rule laid down in the case of BieKeen v. Delaney, 5 Cranch 32, that the construction given by the state courts to state statutes is to be adopted, has been always upheld by this court. Applied to the present case, it is conclusive. A series of decisions * as she procured to support her family with the fruits of her industry, in this town ; but owing to the diminution of trade, she considers that she will have to devote herself to the pursuits of the country ; and wishing to establish herself on the eastern side of the Pond of St. George, she supplicates your excellency to be pleased to grant to * , her three hundred acres in the said place, as she has five *children J and five slaves, with herself; which favor she begs of the just administration of your excellency. Isabel Wiggins.” “ Fernandina, 1st August 1815. Decree. “ St. Augustine, 6th August 1815. The tract which the interested party solicits is granted to her, without prejudice to a third party ; and for the security thereof, let a certified copy of this instance and decree be issued to her, from the secretary’s office. Estrada.” Certificate of Aguilar. “I, Don Tomas de Aguilar, sub-lieutenant of the army, and secretary of the government of the place and province of East Florida, for his majesty, do certify, that the preceding copy is faithfully drawn from the original which exists in the secretary’s office, under my charge, and pursuant to the order, I give the present, in St. Augustine of Florida, on the sixth of August, 1815. Tomas de Aguilar.” Before the memorial and concession were offered in evidence, Elizabeth Wiggins made affidavit: “That in August 1815, she petitioned for the grant; that she received, shortly after, from the secretary of the government, a certified copy of the petition and decree ; that she never had had possession or control of the original; that she always understood that it was, at the date thereof, placed in the proper public office, as was usual in such cases ; that she understood from her counsel, the same could not be found ; and that she is ignorant what has become of the same.” The affidavit was objected to, on the part of the United States, and rejected by the court, and the evidence offered received, without its aid ; on proof being made of the handwriting of Aguilar, the government secretary. Much evidence was introduced to prove the practice and rules in use in the offices of the Spanish government, from which titles to lands issued. We think the evidence was admissible ; the existence of a foreign law, especially 288 1640] OF THE UNITED STATES. 845 United States v. Wiggins. when unwritten, is a fact to be proved, like any other fact, by appropriate ■evidence. The Spanish province of Florida was foreign to this country, in 1815, when the transaction referred to purports to have taken place* A principal witness to prove the practice in the government secretary’s office, was Alvarez, who had been a clerk in it from 1807, to the time of the change ■of government, in 1821. He and others, establish beyond controversy ,«that persons wishing grants of land from the Spanish government, presented a memorial to the governor, and he decreeed on the memorial, in the form pursued in Mrs. Wiggins’s case ; that the decree of the governor was filed in the secretary’s office, and constantly retained there, unless, in cases where a royal title was ordered to be issued, when the the decree was transferred *to the escribano’s office. Mrs. Wiggins’s is a case of the first class ; L and the petition and decree could not be removed from the government secretary’s office. These papers were not recorded in books there, but kept in files or bundles. The evidence given to the grantee was a certified copy of the decree, or of the memorial and decree, by the government secretary ; and that it was one of the ordinary duties of the secretary to make certified copies of memorials and decrees for the use of the parties. Generally, the decree of the governor directed the copy to be made for the use of the party ; and copies made by the government secretary, and certified by him, were generally received as evidence of title in the Spanish courts of justice ; the copies were made immediately after making the decree, and delivered to the party, when he called for them. No seal was affixed to the secretary’s certificate ; which was evidence of the facts to which it certified, in a case like this. From the evidence of the duties incumbent on the government secretary of Florida, derived from this record, and other sources, we have no doubt, the duties were such as proved ; that the secretary was the proper officer appointed by law to give copies ; and that the law trusted him, for this particular purpose, so far as he acted under its authority. It follows, in this case, as in all others where the originals are confined to a public office, and copies are introduced, that the copy is (first) competent evidence by authority of the certificate of the proper officer ; and (second) that it proves, primd facie, the original to have been of file in the office, when the copy w’as made. And for this plain reason, the officer’s certificate has accorded to it the sanctity of a deposition ; he certifies, “ that the preceding copy is faithfully drawn from the original, which exists in the secretary’s office, under my charge.” The same doctrine was holden in this court in Owings v. Hull, 9 Pet. 624-5. The copy of a bill of sale for slaves, made and of record in a notary’s office, in New Orleans, was offered in evidence, without accounting for the original; and objected to for this reason. By the laws of Louisiana, the original could not be removed from the notary’s office ; and he was authorized to give a copy. This -was received and deemed evidence of what was contained in the original ; and of course, that it existed when the copy was made. Again, in Percheman's Case, 7 Pet. 85, it was decided by this court, that a copy of a Spanish grant, certified by the government secretary, could be given in evidence, without accounting for the non-production of the original; and this, on general principles, which did not require the aid of legislation ; much reliance in that case having been placed upon acts of con- 14 Pet.—19 289 346 SUPREME COURT [Jan’y United States v. Wiggins. gress to give effect to the certificate. This court, in the United States v. Delespine, 12 Pet. 655, recognised the principle, that a certified copy, such as the one before us, was evidence, for there a copy of the first copy was introduced : and when speaking of the first copy, the court say, “ the *first copy was made from the original filed in the proper office, from ‘J which the original could not be removed for any purpose. That copy, it is admitted, would have been evidence in the cause.” The original copy having been lost, and no decree being found in the government secretary’^ office in favor of Delespine, although there was proof that one had existed, the copy of the first copy was received, and a decree founded on it.. Deles-pine’s case is, however, prominently distinguishable from the present on the main point in controversy ; in that case, there was positive proof of the existence in the secretary’s office of the original concession ; here there is none, save the inference that arises from Aguilar’s certificate, with some other circumstances : and the question is, can a decree for the land be founded upon these proofs ; in the face of the fact, that no decree, or evidence of the claim, now exists, or has ever been known to exist, in the proper office. “We have established that the copy of the petition and decree are made prima facie evidence by the certificate of the secretary. What is prima facie evidence of a fact ? It is such as, in judgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.”-Kelly v. Jackson^ 6 Pet. 632. And is it rebutted in this case ? Had the papers in the government secretary’s office been carefully kept; and had this claim been first brought forward, at a late day, as it is insisted in argument it was (that is, eighteen years after its date), then the presumption would stand against its original existence ; and it ought to be rejected, if the certificate had no support. But this is far from being the fact. The survey was made by the proper surveyor, for Mrs. Wiggins, March 23d, 1821, in conformity to the memorial and decree, and which refers to their date. Then again, she pursued this claim before the register and receiver of the land office of East Florida, whilst they acted as a board of commissioners for the examination of Spanish claims and titles ; and they rejected it, because there was no evidence of cultivation. Truly, the certificate and plat of the surveyor were only before them ; but as no exception appears to have been taken, for want of sufficient evidence of the existence of the concession, the circumstance of the non-production of it before the board, has not so much in it as was supposed in the argument. The record shows why such vigorous exertions were made, either to reject or to destroy the force of Aguilar’s certificate. The attorney for the government offered to prove by William G. Davis, that Aguilar, just before the delivery of the province was made to the United States, offered to forge a grant, in favor of the witness, for a tract of land ; and the attorney also offered to prove, by William Levington, that about the same time, Aguilar offered to forge, or did actually forge, under the signature of the foynei governor, White, of that province, a grant of land in favor of the witness , which evidence the court rejected ; and, we think, correctly. Aguilai was not introduced as a witness ; but the proof offered sought to establish upon * .. him forgery and fraud in other instances, so as to *destroy the credit 3^$] of his certificate in this. The secretary may have been honest an 290 1840] OF THE UNITED STATES. 848 United States v. Wiggins. faithful in the discharge of his duties in 1815, and grossly the reverse in 1821 ; and although any number of frauds should be established upon him, still, if the particular act sought to be avoided be not shown to be tainted with fraud, it cannot be affected with other frauds. 4 Pet. 297. If there had been a forgery in this instance, it is probable, it would have been brought to light, at the time the survey was made ; the making of which is the controlling fact with this court, coming in aid of the certificate of Aguilar. For it must be admitted, that if the unsupported certificate had been * brought forward, and the claim, for the first time, set up under it, in July 1833, eighteen years after it bears date ; that it could not have furnished any foundation for a decree, or been evidence of title, worthy of credit. The lapse of time, the silence of the claimant, and her failure to have presented it for confirmation, would, under the circumstances, have been conclusive objections to its credibility. But the existence of the claim in 1821, is rendered certain by the return of the surveyor-general ; and before the American tribunals, it has been steadily pursued. Furthermore, the presumption that the original memorial and concession supposed to have been on file in the government secretary’s office, have been lost or destroyed, is very strong. After the papers were taken possession of, in 1821, by the authorities of the United States, they were almost abandoned, in an open house, subject to the inspection and depredation of every one ; many of the files were seen untied, and the papers scattered about the room ; the doors and windows of the house being open. There can hardly be a doubt, that some of the papers were destroyed or lost. Nothing is therefore, found in the condition of the office, to rebut the prim a facie presumption furnished by the secretary’s certificate ; as might be the case, had the papers been kept with proper care : and especially, had the concessions been numbered, and no number been missing. The next question is, does the concession carry with it the conditions imposed by law on those having lands given to them for the purposes of settlement ? The object of the applicant, Mrs. Wiggins, is distinctly set forth by her memorial ; with the number of the family of which she wras the head, that is, five children and five slaves, with herself. By the regulations of Governor White, published in 1803, it was declared, that to each head of a family there should be distributed fifty acres ; and to the children and slaves, sixteen years of age, twenty-five acres for each one ; but from the age of eight to sixteen years, only fifteen acres. Taking the slaves and children all to have been over sixteen, there being ten of them, would have entitled the applicant to two hundred and fifty acres on their account, and the fifty acres on her own ; which would have made up the three hundred, acres applied for. rhe same ordinance provides, “ That those employed in the city, if lands be granted to them for cultivation, by themselves or their * slaves ; it shall be with the express condition, that he shall com-mence cultivation within one month after the concession of them, with the understanding, that if they do not do it, they will be granted to any one who will denounce him, and verbally prove it.” And that all concessions, without time specified, shall be void, and held as though not made, if grantees do not appear to take possession and cultivate them within the term six months. In the concession to Mrs. Wiggins, no time is specified for 291 349 SUPREME COURT [Jan’y United States v. Wiggins. the settlement ; and the government of the United States may take advantage of the non-performance of the condition prescribed by law, if the eighth article of the treaty with Spain does not provide for the omission. It stipulates, “that grants of lands made by Spain, before the 24th of January 1818, shall be ratified and confirmed to the persons in possession of the lands, to the same extent that the same grants would be valid, if the territories had remained under the dominion of Spain.” It was adjudged by this court, in the cases of Arredondo and Percheman, 6 and 7 Peters, that the words “ shall be ratified and confirmed,” in reference to perfect titles, should be construed to mean “ are ” ratified and confirmed, in the present tense. The object of the court in these cases was, to exempt them from the operation of the eighth article, for the reason that they were perfect titles by the laws of Spain, when the treaty was made ; and that when the soil and sovereignty of Florida were ceded by the second article, private rights of property were by implication protected. The court, in its reasoning, most justly held, that such was the rule by the laws of nations, even in cases of conquest, and undoubtedly so, in a case of cession ; therefore, it would be an unnatural construction of the eighth article, to hold, that perfect and complete titles, at the date of the treaty, should be subject to investigation and confirmation by this government; and to reconcile the article with the law of nations, the Spanish side of the article was referred to, in aid of the meaning of the American side, when it was ascertained, that the Spanish side was in the present tense ; whereupon the court held, that the implication resulting from the second article, being according to the law of nations, that, and the eighth article, were consistent; and that perfect titles “ stood confirmed ” by the treaty ; and must be so recognised by the United States, and in our courts. The construction of the treaty being settled, a leading inquiry in the cases referred to was, were they perfect, unconditional Spanish grants ? Percheman’s had no condition in it; and the only difficulty involved was, whether it had been made by the proper authority. The court held it had been so made. The grant to Arredondo and son was for four leagues square, and made as a present grant from its date ; with the subsequent condition, that the grantees should settle and improve the land in three *3501 *years» and on failure, the grant should become void ; further, that J they should settle on it two hundred Spanish families ; but no time wras fixed for the performance of this condition. Possession was taken and improvements made, within the three years ; but the families were not settled, when the country was ceded. This court declared, that after the cession of Florida to the United States, the condition of settling Spanish families had become, probably, impossible, by the acts of the grantor, the government of Spain ; and certainly immaterial to the United States; therefore the grant was discharged from the unperformed condition, and single. That the perfect titles, made by Spain, before the 24th of January 1818, within the ceded territory, are intrinsically valid, and exempt from the provisions of the eighth article, is the established doctrine of this court; and that they need no sanction from the legislative or judicial departments cl this country. But that there were, at the date of the treaty, very manj claims, whose validity depended upon the performance of conditions in 292 1840] OF THE UNITED STATES. 350 United States v. Wiggins consideration of which the concessions had been made, and which must have been performed, before Spain was bound to perfect the titles ; is a fact rendered prominently notorious by the legislation of congress and the litigation in the courts of this country for now nearly twenty years. To this class of cases, the eighth article was intended to apply ; and the United States were bound, after the cession of the country, to the same extent that Spain had been bound before the ratification of the treaty, to perfect them, by legislation and adjudication : and to this end, the government has provided that it may be sued by the claimants in its own courts ; where the claims shall be adjudged, and the equities of the claimants determined and settled according to the law of nations, the stipulations of the treaty, and the proceedings under the same, and the laws and ordinances of the government from which the claims are alleged to have been derived. These are the rules of decision prescribed to the courts by congress, in the act of 1824, ch. 173, § 2, passed to settle the titles of Missouri and Arkansas; and made applicable to Florida, by the act of 828, ch. 70, § 6. By the sixth section of the act of 1824, the claimant who has a decree in his favor, is entitled to a patent from the United States ; by which means his equitable claim draws to it the estate in fee. These are the imperfect claims to which the eighth article of the treaty with Spain refers. That a Spanish concession, carrying on its face a condition, the perform-tance of which is the consideration for the ultimate perfect title, is void, unless the condition has been performed in the time prescribed by the ordinances of Spain ; was decided by this court after the most mature consideration, in the cause of the United States v. Kingsley, 12 Pet. 476, which is the leading decision upon the imperfect titles known as mill-grants ; and which has been followed by all others coming within the principles then, with so much care *and accuracy, laid down. The concession to Mrs. Wiggins, carrying with it the conditions incident to settlement- *-rights, by the ordinances and usages of Spain ; a brief notice, in addition to what has already been said, will be taken of the regulations and ordinances governing the case. As to the first point, the practice of the government in disposing of the public domain, may be proved by those familiar with the customs ; and there is in the record, very satisfactory proof by witnesses of the laws and customs governing the provincial authorities in this respect; but as the proof is in exact accordance with the published ordinances on the subject, of course, the written law will be relied upon. After the passage of the act of 1823, it was the opinion of the attorneygeneral of the United States, that it was indispensable to the correct decision of the Florida claims by this court, that a correct translation into the English language should be made of the Spanish and French ordinances, affecting the land titles in that country. The task of translating and compiling them was assigned to Joseph M. White, Esq., then of Florida. The collection was accordingly made and translated, and the manuscript deposited in the state department ; and congress was informed of the fact, by a special message from the President of the United States, of February 11th, 1829. 2 White’s Recopilación, 9-10. It was afterwards published by Mr. White ; and latterly he has published a second and en-arged edition, which is the one referred to in this case. The treaty with Spain for the cession of Florida, was signed 2d Febru- 293 351 SUPREME COURT [Jan’y Pollard v. Kibbe. ary 1819 : on the 25th of November preceding, the political and military governor (Coppinger) caused to be published an ordinance setting forth the conditions on which concessions for settlement claims had been issued; obviously, with a view to the future cession. 2 White’s Recopilación 282-5. From the ordinance, it appears, “that concessions made to foreigners or natives, of large or small, portions of land, carrying their documents with them (which shall be certificates issued by the secretary), without having cultivated or ever seen the lands granted to them, such concessions are of no value of effect ; and should be considered as not made, because the abandonment has been voluntary, and that they have failed in complying with the conditions prescribed for the encouragement of population “and therefore, there is no reason why they should not revert to the class of public lands, making null the titles of cession which were made to them.” Ten years had been the time required for cultivation and occupation ; this rule was not rigidly adhered to, but the titles were perfected in some instances, where valuable improvements had been made, and the occupation had been short of ten years ; the governors taking into consideration the disturbed state of the country. These exceptions were abatements of the general rule, requiring ten years’ cultivation and occupation : as Mrs. Wiggins, howeter, never cultivated, or occupied the land claimed, she took no interest under the *rule, or any exception made to it ; and it is free J from doubt, had Spain continued to govern the country, no title could have been made to her ; nor can any be claimed from the United States, as successors to the rights and obligations of Spain. It is, therefore, adjudged, that the decree below be reversed, and the petition dismissed. This cause came on to be heard, on the transcript of the record from the superior court for the district of East Florida, and was argued by counsel: On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said superior court in this case be and the same is hereby reversed and annulled ; and that this cause be and the same is hereby remanded to the said superior court, with directions to dismiss the petition. *353] *The Lessee of William Pollard’s Heirs, &c., Plaintiffs in error, v. Gaius Kibbe, Defendant in error, (a) Error to state court.—Spanish treaty. Action of ejectment in the state court of Alabama, for a lot of ground in the city of Mobile. The plaintiff claimed the title to the lot under an act of congress, and the decision of the state court was against the right and title so set up and claimed; a writ of error was prosecuted to the supreme court of Alabama. It was held, that this case was embraced by the 25th section of the judiciary act of 1789, which gives this court jurisdiction to revise the judgment of the state court, in such cases. The act of congress under which title was claimed, being a private act, and for the benefit of the city of Mobile, and certain individuals, it is fair to presume, it was passed with reference to the particular claims of individuals, and the situation of the land embraced in the law, at the time it was passed. A lot of ground was granted by the Spanish government of Florida, in 1802, to Forbes & Cornel) Mr. Chief Justice Taney was prevented from sitting in this case, by indisposition. 291 1840j OF THE UNITED STATES. 353 Pollard v. Kibbe. pany, in the city of Mobile, which was afterwards confirmed by the commissioners of the United States ; the lot granted was eighty feet in front, and three hundred and four feet in depth, bounded on the east by Water street. This, while the Spanish government had possession of the territory, was Known as “a water lotin front of the lot was a lot which, at the time of the grant of the lot to Forbes & Company, was covered by the water of the bay and river of Mobile, the high tide flowing over it; and it was separated from Forbes & Company’s lot by Water street. It was, afterwards, in part, reclaimed by Lewis, who had no title to it, and who was afterwards driven off by one of the firm of Forbes & Company ; a blacksmith’s shop was then put on the lot by him; and Lewis, again, by proceedings at law, obtained possession of the blacksmith’s shop, it not being his inprovement; the improvement was first made in 1823. The Spanish governor, in 1809, after the Louisiana treaty of 1803, and before the territoiy west of the Perdido was out of the possession of Spain, granted the lot in front of the lot owned by Forbes & Company, to William Pollard ; but the commissioners of the United States, appointed after the territory was in the full possession of the United States, refused to confirm the same, “ because of the want of improvement and occupation.” In 1824, congress passed an act, the second section of which gave to those who bad improved them, the lots in Mobile, known under the Spanish government as “ water lots,” except when the lots so improved had been alienated, and except lots of which the Spanish government had made “ new grants,” or orders of survey, during the time the Spanish government had 41 power ” to grant the same; in which case, the lot was to belong to the alienee or the grantee. In 1836, congress paesed an act for the relief of William Pollard’s heirs, by which the lot ■granted by the Spanish government of 1809, was given to the heirs, saving the rights of third persons ; and a patent for this lot was issued to the heirs of William Pollard, by the United States, on the 2d of July 1836: Held, that the lot lying east of the lot granted in 1802, by the Spanish government, to Forbes & Company, did not pass by that grant to Forbes & Company; that the act of congress of 1824 did not vest the title in the lot east of the lot granted In 1802, in Forbes & Company; and that the heirs of Pollard, under the second section of the act of 1824, which excepted from the grant to the city of Mobile, &c., lots held under “ new grants ” from the Spanish government, and under the act of congress of 1836, were entitled to the lot granted in 1809, by the Spanish governor to William Pollard. The term “ new grants,” in its ordinary acceptation, when applied to the same subject or object, is the opposite of “ old;” but such cannot be its meaning in the act of congress of 1824. The term was doubtless used in relation to the existing condition of the territory in which such grants were made; the territory had been ceded to the United States by the Louisiana treaty ; but, in consequence of a dispute with Spain about the boundary line, had remained in the possession of Spain ; during this time, Spain continued to issue evidences of titles to lands within the territory in dispute. The term *“ new ” was very appropriately used, as . applicable to grants and orders of survey of this description, as contradistinguished L from those issued before the cession. The time when the Spanish government had the power ” to grant lands in the territory, by every reasonable intendment of the act of congress of 1824, must have been so designated with reference to the existing state of the territory, as between the United States and Spain ; the right to the territory being in the United States, and the possession in Spain. The language ‘ during the time at which Spain had the power to grant the same,” was, under such circumstances, very appropriately applied to the case; it could, with no propriety, have been applied to the case, if Spain had full dominion over the territory, by the union of the right and the possession ; and in this view, it is no forced interpretation of the word “ power,” to consider it here used as importing an imperfect right, and distinguished from complete lawful authority.1 The act of congress of 25th March 1812, appointing commissioners to ascertain the titles and claims to lands on the east side of the Mississippi, and west side of the Perdido, and falling within the cession of France, embraced all claims of this description. It extended to all claims, by virtue of any grant, order of survey, or other evidence of claim whatsoever, derived from the French, British or Spanish governments; and the reports of the commissioners show, that evidence of claims of various descriptions, issued by Spanish authority, down to 1810, came under their examination. And the legislation of congress shows many laws passed con- See Mobile v. Eslava, 16 Pet. 234; Mobile 95 ; Pollard v. Files, 2 Id. 595; Doe v. Eslava, *' Hallett, Id. 261; Mobile v. Emanuel, 1 How. 9 Id. 421 ; Pollard v. Kibbe, Id. 471. 295 354 SUPREME COURT [Jan’^ Pollard v. Kibbe. firming incomplete titles, originating after the date of the treaty between France and Spain, at St. Ildefonso; such claims are certainly not beyond the reach of congress to confirm: although it may require a special act of congress for that purpose ; such is the act of 2d July 1836, which confirms the title of William Pollard’s heirs to the lot which is the subject of this suit. The judgment of the supreme court of the United States, in a case brought by writ of error to a court of a state, must be confined to the error alleged in the decision of the state court, upon -the construction of the act of congress, before the state court.1 Error to the Supreme Court of the state of Alabama. In the circuit court for the county of Mobile, state of Alabama, an action of ejectment, for a lot of ground situated in the city of Mobile, was instituted by the plaintiffs in error, and was afterwards removed, by change of venue, to the circuit court for the county of Baldwin. It was tried before a jury in that court, and on the trial, the plaintiffs filed a bill of exceptions to the charge of the court. A verdict and judgment were given for the defendant. From this judgment of the circuit court, the plaintiffs prosecuted a writ of error to the supreme court of the state of Alabama ; and the judgment of the circuit court, in favor of the defendant, was affirmed by the supreme court. The plaintiffs prosecuted this writ of error to the supreme court of the United States, under the 25th section of the judiciary act of 1789. The following is the bill of exceptions filed by the plaintiffs, on the trial of the cause in the circuit court of the county of Baldwin : On the trial of this cause, at the above term, the plaintiffs, to maintain the issue on their part, gave in evidence an instrument, signed by Cayetano Perez, written in the Spanish language, a translation of which is hereto annexed, as part of this bill of exceptions, but which instrument was shown to have been reported against, and rejected, by the commissioners appointed by the United States government to investigate and report on such matters, because of the want of improvement and occupancy. *355] *Spanish grant (translated). “Mr. Commandant:—William Pollard, an inhabitant of the district, before you, with all respect, represents : that he has a mill established upon his plantation, and that he often comes to this place with planks and property from it, and that he wishes to have a place propitious or suitable for the landing and safety thereof; and that having found a vacant piece at the river side, between the channel which is called ‘John Forbes & Company’s,’ and the wharf at this place, he petitions you to grant said lot on the river bank, to give more facility to his trading; a favor he hopes to obtain of you. • William Pollard.’ “Mobile, 11th December 1809. “Mobile, 12th December 1809. “ I grant the petitioner the lot or piece of ground he prays for, on the river bank, provided it be vacant. Cayetano Perez. They further gave in evidence an act of congress, passed on the 26th day of May 1824, entitled an act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city. They further gave in evidence an act of congress, passed July 2d, 1836, entitled an act for the relief of William Pollard’s heirs. They then gave in 1 Armstrong v. Athens County, 16 Pet. 281. 296 1840] OF THE UNITED STATES. 355 Pollard v. Kibbe. evidence a patent, dated the 14th day of March 1837, issued in pursuance of said act of congress of the 2d of July 1836, which patent embraced the premises in question. The plaintiffs further proved, that in the year 1813 or 1814, some wreck and drift wood was removed from the place where the premises in question now are, by the hands of William Pollard, the grantee. The defendant gave in evidence a Spanish grant, dated 9th of June 1802, to John Forbes & Company, for a lot of ground, for eighty feet front on Royal street, with a depth of three hundred and four feet to the east, and bounded on the south by Government street; which grant was recognised as a perfect title, and so confirmed by act of congress. Attached to the original grant was a certificate signed by W. Barton, Register, Wm.1 Barnett, Receiver, P. M.; Attest—John Elliott, Clerk ; a copy of which is the following: Proceedings of the commissioners. Land-Office, Jackson Court-House. Commissioners’ Report, No. 2 ; Certificate, No. 3. In pursuance of the act of congress, passed on the 3d of March 1819, entitled “ an act for adjusting the claims to land, and establishing landoffices in the district east of the island of Orleans,” we certify, that the claim No. 3, in the report of the commissioners, numbered 2 (claimed by John Forbes & Company, original claimant, Panton, Leslie & Company), is recognised by the said act as valid against any claim on the part of the United States, or right derived *from the United States ; the said r4;„ claim being for eighty feet in front, and three hundred and four in L depth, area, 24,320 feet, situate in the town of Mobile, and claimed by virtue of Spanish grant executed by J. V. Morales, and dated 9th of June 1802. Given under our hands, this 8th day of January 1820. W. Barton, Register. * £ Wm. Barnett, Register, P. M. Attest—John Elliott, Clerk. ’ A map or diagram, indicating the property claimed, as well as that covered by the above grant, with other lots, streets, &c., was submitted to the jury, and to make a part of the bill of exceptions, by agreement between the counsel of the parties. According to that map, and the proof, the lot sued for was east of Water street, and also immediately in front of the lot conveyed by the above-mentioned grant to John Forbes & Company, and only separated from it by Water street. The proof showed that, previous to 1819, then, and until filled up, as after stated, the lot claimed by plaintiffs was, at ordinary high tide, covered with water, and mainly so, at all stages of the water ; that the ordinary high water flowed from the east to about the middle of what is now Water street, as indicated on the map referred to, between the lot claimed by plaintiffs, and that covered by the grant to John Forbes & Company. It was proved, that Jonn Forbes & Company had been in possession of the lot indicated by their deed, since the year 1802 ; and that said lot was known, under the Spanish government, as a water lot; no lots at that time, existing between it and the water. It was proved, that in the year 1823, no one being then in possession, and 297 SUPREME COURT Pollard v. Kibbe. [Jan’y 356 the same being under water, Curtis Lewis, without any title, or claim under title, took possession of, and filled up, east of Water street, and from it, eighty feet east, and thirty-six or forty feet wide, filling up north of Government street, and at the corner of the same and Water street; that Lewis remained in possession about nine months, when he was ousted in the night by James Inneranty, one of the firm of John Forbes & Company ; who caused to, be erected a smith-shop, and from whom, Lewis, some time after, regained possession, by legal process, and retained it till he conveyed the same. Proved, that when said Lewis took possession, Water street, at that place, could be passed by carts, and was common. The defendant connected himself, through conveyances for the premises in controversy, with the said grant to John Forbes & Company, also with the said Curtis Lewis, also, with the mayor and aidermen of the city of Mobile; from each of which sources his title, if any, was derived by deed. It was admitted by the parties to the suit, that the premises sued for were between Church street and North Boundary street; this was all the evidence introduced on the trial. On this evidence, the court charged the jury, that if the lot conveyed as * , above, to John Forbes & Company, by the deed aforesaid, *was 0 -I known as a water lot, under the Spanish government, and if the lot claimed by the plaintiffs had been improved, at and previous to the 26th day of May 1824, and was east of Water street, and immediately in front of the lot so conveyed to John Forbes & Company, then the lot claimed passed, by the act of congress of the 26th of May 1824, to those at that time owning and occupying the lot so as above conveyed to John Forbes & Company. The court further charged the jury, it was immaterial who made the improvements on the lot on the east side of Water street, being the one in dispute ; that by the said acts of congress, the proprietor of the lot on the west side of Water street, known as above, was entitled to the lot on the east side of it. To which charges of the court, the plaintiffs, by their counsel, excepted, and this was signed and sealed as a bill of exceptions. The case was argued by Test and Webster, for the plaintiffs in error ; and by Key, for the appellee. For the plaintiff in error, it was contended, that the charge in the circuit court of Baldwin county, was erroneous ; and the judgment of the superior court of Alabama should be reversed : 1. Because plaintiff had a good title, under his original grant, the confirmation thereof by the act of congress of the 2d July 1836, and the patent issued in pursuance thereof. 2. The construction put by the judge who tried the cause, on the act of May 26th, 1824, was not the true construction of that act. 3. The said charge to the jury was not warranted by the evidence set forth in the said bill of exceptions. The counsel for the plaintiffs in error stated, that the question in the case was, whether the grant to Forbes & Company, dated 9th June 1802, which had been confirmed by the commissioners of the United States, on the 8th of January 1820, conveyed the lot in front of the lot of Forbes & Company, which is now claimed by Pollard’s heirs. The plaintiffs had a good and valid title to this lot. They rely on the provisions of the act of congress of 1826. They do not claim as riparian proprietors. Pollard was in possession of the property, as is shown by the 298 1840] OF THE UNITED STATES. 357 Bollard v. Kibbe. act of congress of 1826 ; and the patent to him was granted under that law. The patent is the highest evidence of title, and the court will not look beyond or behind it. If the original grant by Governor Cayetano Perez was of no value, yet the act of 1836 gave it life, and made it a legal, valid and indisputable title, against any equitable title ; and the defendants have nothing but an equitable title. Cited, the Act of Congress of the session of 1836-37. The defendants claim under an act of congress granting certain lots to the city of Mobile. (4 U. S. Sta^t. 66.) A proper construction of this law negatives this claim. The law gives a title *to what is now called p “ a water lot not to what were called “ water lots” by the Spanish law. Under the Spanish laws, grants were extended into the river ; and no water lots were granted, unless particularly described to be such, and so * granted. The defendants exhibited no grant, specially describing the lot to be a water lot. The grant of the lot, by the act of 1836, recognises the lot for which the plaintiffs in error contend, as a lot under a “ new grant” of the Spanish government; and the lot is given to the heirs of Pollard, the -lessors of the plaintiffs in error. The defendants claim under the act of congress of 1824 ; and the act of 1836 is a legislative construction of that act. The jurisdiction of the court in this case depends upon the question, whether an act of congress has been misconstrued by the supreme court of Alabama. Has this been so ? It has been said, that the original grant by the governor of Florida has been treated with scorn, and is of no value. That grants of this description having been for lands within the territory claimed by the United States, under the cession treaty of Louisiana, have always been disregarded. This is not so. Congress have in more than a thousand instances respected and confirmed suchr titles. In regard to the contest between the United States and Spain, under the Louisiana treaty, relative to the lands lying west of the river Perdido, possession of those lands w’as not obtained until 1823. The condition of a country, between the time it has been ceded, and the time when it is taken possession of, is determined by the law of nations. The rule of that law is, that nothing is changed until possession is taken of the country. It is not admitted, that _ congress could, before the United States took possession of the country, pass laws abrogating the established law’s of Spain. Governments are, of all others, the parties on which the law’s of the country which may have -acquired the country by treaty, do not operate, before they are in possession. It has often been decided in this court, that the government which is in possession of a country may make grants. In the case of the State of Kho.de Island v. State of Massachusetts, 12 Pet. 748, the court say, “ w’hen a territory is acquired by cession, or even conquest, the rights of the inhabitants " to property are respected and sacred.” Grants of land by a government -defacto, of parts of a disputed territory in its possession, are valid against the state which had the right. 8 Wheat. 509 ; 12 Ibid. 535 ; 6 Pet. 712 ; . 8 Ibid. 445 ; 9 Ibid. 139 ; 10 Ibid. 330, 718. The act of congress of 1804 speaks of and relates entirely to past cases. See Act of 26th March 1804, § 14. It declares the titles referred to in it to have been, and to be, null and void. Land Laws 500. 299 SUPREME COURT Pollard v. Kibbe. [Jan’y 358 There is no objection to the title of the plaintiffs in error, on the ground, was n°t contirmed by the commissioners of the United *States. J Their decision does not disaffirm the title. After the refusal of the commissioners to allow it, an action may be brought upon it. Was the grant refused by the commissioners, because of the provisions of the treaty for the cession of Louisiana ? The commissioners say, it was refused 11 because of the want of proof of cultivation and occupation.” Grants made after the treaty have been confirmed in many cases ; among them a grant to Forbes & Company. There was a title in the heirs of Pollard, under the grant, but the supreme court of Alabama decided upon the act of congress of 1824. The grants made after the treaty have been so often confirmed, that the circumstance shows what was meant in the act of congress under which the plaintiff in error claims, by “ new grants.” “ New grants ” referred to the period of the treaty. The treaty was an epoch from which grants were characterized as new grants. The grant to Forbes & Company, under which the claim of the plaintiffs in error is opposed, is for three hundred and four feet. It is nowhere said to go to the river. Thus, if a riparian right is claimed, at the common law, it is negatived by the description of the lot. The grantees are limited to the feet and inches stated in the grant, and have no claim to say the grant extends to high-water mark. • The act of congress of 1824 shows, that the grants by the Spanish government did not give riparian rights. If the grantees had such rights, why apply to congress to allow them ? The plaintiffs in error had an equitable title, before 1824, which should have been protected. The subsequent act gave them a legal title. The courts of Alabama have misconstrued the acts of congress. A construction has been given to the act of 1824, which rides over the title of the lessors of the plaintiffs in error ; and this court only can correct the judgment of the state court. By the act of 1824, all the lots which belonged to no one, were given to the city of Mobile ; but the first section of the act takes no title, equitable or legal, from any one. The construction of the second section of the act of 1824, which is claimed for the defendant, is such as will take away the property of another person. That construction is : If you find an improved lot, give it to the person who has an improved lot above it ; thus, giving the lot to one who bad no agency in the improvement. This is against the grammatical construction of the law, and against the just intentions of the national legislature. This will not be sustained by the court, unless they will allow one person to take the property oi another, without compensation, and that the fair grammatical construction of the law shall be disregarded. The object of the law of 1824 was, to give lots not granted by the Spanish government, after the Louisiana treaty, styling such concessions “ new grants,” to the persons mentioned in the acts. “ New grants ” were excepted, and were left to the legislation of congress. * - *Key, for the defendants.—The case presents but few points for $60-1 the consideration of the court. It is admitted on the part of the plaintiffs in error, that in 1824, the legal title to the lot in controversy was in the United States. If this was so, by the act of congress of 1824, it 300 OF THE UNITED STATES. Pollard v. Kibbe. 1840] 360 became vested in the defendants. Before 1824, the defendants had an equitable title, which was made a perfect legal title by that act. By the decisions of this court in Foster v. Neilson, 2 Pet. 253 ; and Garcia v. Lee, 12 Ibid. 511, Spanish grants, made for any part of the territory west of the Perdido, after the treaty of 1803 with France, by which Louisiana was ceded to the United States, are declared void. No equitable title under the Spanish grant, made after 1803, could exist against the United States. The whole question between the parties in this case depends on the act <>f congress of 1824. It is to be admitted, that if this act is applicable to i :e title of the plaintiffs, the title is complete. If the title they claim is within the exception in that act, why ask or take a title under the act of ] *36 ? The title of the defendants is under a Spanish grant of 1802, which has been confirmed by the United States. The grant was for ground to which the lot claimed by the plaintiffs in error was an accretion. After the treaty of 1803, the riparian rights by the common law, gave the right to this lot to Forbes & Company. Whatever was the Spanish law, before tne treaty, afterwards, the common law prevailed. A just construction of this act of congress of 1824, gives the lot to the defendants ; and the judgment of the supreme court of Alabama should be sustained by this court. Thompson, Justice, delivered the opinion of the court.—The writ of error in this case brings up the record of the final judgment of the supreme court of the state of Alabama. This case is brought here under the 25th section of the judiciary act of 1789 ; that court being the highest court of law in that state in which a decision could be had. It was an action of ejectment, brought to recover possession of a lot of land, in the city of Mobile. Upon the trial of the cause, the plaintiff claimed title to the premises in question, under an act of congress, and the decision in the state court was against the right and title so set up and claimed. It is, therefore, one of the cases embraced in this section of the judiciary act, which gives to this court jurisdiction to revise the judgment of the state court. The act under which title was claimed, was passed on the 26th of May 1824 (4 U. S. Stat. 66), granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of that city. Although the judgment of this court must be confined to the error alleged in the decision of the state court, upon the construction *of the act of con-gress under which title was claimed, it becomes necessary, to the right understanding of the act which was drawn in question, to look at the state of facts appearing on the record. It being a private act, for the benefit of the city of Mobile and certain individuals, it is fair to presume, it was passed; with refence to the particular claims of such individuals, and the situation of the land embraced within the law, at the time it was passed. These facts, as they appear on the record, are briefly as follows : On the trial, the plaintiff gave in evidence an instnwnent signed by Cayetano Perez dated at Mobile, the 12th day of December, in the year 1809, purporting to be a petition of William Pollard, for a certain lot of ground, which is described as vacant, at the river side, between the canal, which is called John Forbes & Company’s, and the wharf of this place, corresponding in description with the location of the lot in question ; and a grant accompanying the petition, in these words : “ I grant the petitioner the lot or 301 361 SUPREME COURT [Jan’y Pollard v. Kibbe. piece of ground he prays for, on the river bank, provided it be vacant which grant was rejected by the commissioners appointed by the government of the United States, to investigate and report upon such claims, because of the want of improvement and occupation of the lot. The defendant gave in evidence a Spanish grant, dated the 9th of June, in the year 1802, to John Forbes & Company, for a lot of ground eighty feet front on Royal street, with a depth of three hundred and four feet to the east, and bounded on the south by Government street; which grant was recognised by the commissioners as a perfect title, and so confirmed by congress. A map or diagram is referred to in the record, by which it appears, that the lot sued for is east of Water street, and immediately in front of the lot conveyed by the above-mentioned grant to John Forbes & Company, and only separated from it by Water street. It appeared in evidence, that previous to the year 1819, and until filed up by Curtis Lewis, the lot in question was, at ordinary high tide, covered with water, and mainly so, at all stages of the tide. That the ordinary high water flowed from the east, to about the middle of what is now Water street. It was proved, that John Forbes & Company had been in possession of the lot granted to them, since the year 1802 ; and that said lot was known under the Spanish government, as a water lot; no lots at that time existing between it and the water. In the year 1823, no one being in possession of the lot in question, and the same being under water, Curtis Lewis, without title, or claim under title, took possession of, and filled up, east of Water street, about thirty-six or forty feet wide, and eighty feet deep from Water street ; the filling up being north of Government street, at the corner of that and Water street. Lewis remained in possession about nine months, when he was ousted in the night-time by James Innerarity, one of the firm of John Forbes & Company ; who caused to be erected thereon a smith’s shop. Lewis, some time after, regained the possession by legal process, and retained it until he con-* , veyed away the same. When Lewis took possession, Water street, J at that place, could be passed by carts, and was common. The defendant connected himself, through conveyances for the premises in question, with the grant to John Forbes & Company, and also with Curtis Lewis, and the mayor and aidermen of the city of Mobile. Such being the situation of the lot in question, and of the several claims to the same, the act of the 26th of May 1824 was passed. The first section of this act can have no bearing upon the claim set up to the lot in question. It only vests in the city of Mobile all the right and claim of the United States to all the lots not sold or confirmed to individuals, either by this or any former act, and to which no equitable title exists in favor of any individual, under this or any other act. If, therefore, the second section applies to the lot in question at all, it is excepted out of the first section. That the second section does apply to this lot, has not been and cannot be doubted. That section is as follows : “ That all the right and claim of the United States to so many of the lots of ground, east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known, under the Spanish government, as water lots, in the said city of 302 1840] OF THE UNITED STATES. Pollard v. Kibbe. 362 Mobile, whereon improvements have been made, be and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile ; except in cases where such proprietor or occupant has alienated his right to any such lot, now designated as a water lot, or the Spanish government has made a new grant or order of survey for the same, during the time at which they had the power to grant the same, in which case, the right and claim of the United States shall be and is hereby vested in the person to whom such alienation, grant or order of survey was made, or in his legal representatives ; provided, that nothing in this act contained, shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate?’ There are two facts to be collected from this description of the lots embraced in this section of the act, which must be kept in view in deciding this question, viz., that the lots on the west side of Water street were known under the Spanish government as water lots ; and that the lots on the east side of Water street, are now known as water lets, and may properly be distinguished under the denomination of old water lots, and new water lots. The only question for this court to decide is, whether the state court misconstrued this act, by deciding against the right and title set up under it by Pollard’s heirs. The record states, that the court charged the jury, that if the lot conveyed as above to John Forbes & Company, by the deed aforesaid, was known as a water lot, under the Spanish government, and if the lot claimed by the plaintiffs had been improved, at and previous to the 26th day of May 1824 (the date of the law), and was east of Water street, and immediately in front of the lot so conveyed to John Forbes & Company, *then the lot claimed passed, by the act of congress of the 26th of * May 1824, to those at that time owning and occupying the lot so as ■- $ $ above conveyed to John Forbes & Company. The facts hypothetically put by the court to the jury had been fully proved in the affirmative, and indeed, were not at all denied ; to wit, that the lot conveyed to John Forbes & Company was known, under the Spanish government, as a water lot; and that the lot claimed by the plaintiffs had been improved previous to the 26th of May 1824, and was in front of the lot conveyed to John Forbes & Company. The construction, therefore, of the court was, substantially, that the act conveyed the lot in question to the owners and occupants of the lot conveyed to John Forbes & Company. That such was the construction of the act given by the court, is conclusively shown, by the subsequent part of the charge ; that it was immaterial who made the improvements on the lot in dispute, on the east side of Water street. That by the said act of congress, the proprietor of the lot on the west side of Water street, was entitled to - the lot on the east side of it. If this construction of the act was erroneous, and against the right claimed by the plaintiffs, the judgment must be reversed. The act is, undoubtedly, very obscurely worded, and its construction, it must be admitted, is doubtful. The principal difficulty arises upon the true understanding and reference of the words, “ whereon improvements have been made ; ” whether they re er to improvements on the lot on the west side of Water street, or on the °t in question, on the east side of Water street. The grammatical con 803 SUPREME COURT Pollard v. Kibbe. [Jan’y 363 struction would, undoubtedly, refer the improvements to the lot on the west side of the street, and would be carrying into effect what is believed to be the general course of policy in most of the United States, of giving a preference to the owner of land on the shore of navigable streams of water, to the right and privilege of the land under the water, between high and low water mark. And on the other hand, it would seem unjust, where actual improvements had been made on the land below high-water mark, to disregard and take away such improvements, and give them to the owner of the lot on the west side of the street. The evidence as to the extent and value of the improvements on the lot in question is very loose, and affords but little information upon that point. They could, probably, have been but of little value. They were made by Curtis Lewis, he not having any title, or even claim of title. And it is not reasonable to suppose, that under such circumstances, and from the short time he was in possession before the passage of this act, that he would have made very valuable improvements. And if the intention of congress had been, to give the lots on the east side of Water street to those who had improved them, it would have required but a very plain and simple declaration to that effect ; and might have been just and equitable, if such im-* , provements were valuable. But it is difficult to conceive how *the J phraseology in the act could have been adopted to indicate such intention. It is not, however, necessary to decide upon the construction of this act, as between the conflicting claims of the owner of the lot on the west side of Water street, and those who had made improvements on the lot on the east side of that street. For there is excepted out of the act all cases where the Spanish government has made “a new grant,” or order of survey for the same, during the time at which they had “the power ” to grant the same ; in which cases the right and claim of the United States are vested in the person to whom such grant or order of survey was made, or his legal representatives. And if the plaintiffs bring themselves within this exception, the right is secured to them. And this presents the question as to the construction to be given to this exception. Two points of inquiry seem to be presented : one relates to the description of the grant or order of survey therein mentioned ; and the other as to the time when made. The exception describes these grants or orders of survey as “ new grants ” or orders of survey. The term “ new,” in its ordinary acceptation, when applied to the same subject or object, is the opposite of old. But such cannot be its meaning, as here used ; for there is no pretence that two grants or orders of survey, had at any time been issued for the same lot. Some other meaning must, therefore, be given to it. And itj doubtless, was used in relation to the existing condition of that part of the territory, when grants or orders of survey like the one in question were made. The territory had been ceded to the United States by the Louisiana treaty ; but in consequence of some dispute with Spain respecting the boundary line, this part of the territory remained in the possession of Spain. And it is a fact, established by the public documents, and laws of congress, and cases which have come before this court, that during the period between the cession by France, and the acquiring possession by the United States, Spain continued to issue evidences of title, of various descriptions ; some, complete 304 1840] OF THE UNITED STATES. Pollard v. Kibbe. 364 grants, and others, which were only inchoate rights or concessions. And the term “ new ” was very appropriately used as applicable to grants and orders of survey of this description, as contradistinguished from those issued before the cession. And this construction is rendered certain, when the description of the grants is connected with the subsequent part of the sentence, as to the time when made, to wit, during the time at which the Spanish government had “the power” to grant the same. This time, according to every reasonable intendment, must have been so designated with reference to the existing state of the territory, as between the United States and Spain ; the right to the territory being in the United States, and the possession in Spain. The language, “during the time at which Spain had the power to grant the same,” was, under such circumstances, very appropriately applied to the case. It could with no propriety have been applied to the case, if Spain had full dominion over the territory, by the union of right and possession ; and in this view, it is no forced interpretation of the r))eQft_ word power, to consider it here used, as importing an imperfect *-right, and distinguishable from complete lawful authority. And indeed, no other sensible construction can be given to the language here used ; and the course of the government of the United States, with respect to the claims originating during this period would seem necessarily to call for this construction. The act of congress of the 25th of April 1812, appointing commissioners to ascertain the titles and claims to lands on the east side of the river Mississippi, and west of the river Perdido, and falling within the cession by France, embraced all claims of this description ; it extended to all claims, by virtue of any grant, order of survey, or other evidence of claim whatsoever, derived from the French, British or Spanish governments. And the reports of the commissioners, show that evidence of claims of various descriptions, issued by Spanish authority, down to the year 1810, came under the examination of the commissioners ; and the legislation of congress shows many laws passed confirming incomplete titles, originating after the date of the treaty between France and Spain, at St. Ildefonso. Such claims are certainly not beyond the reach of congress to confirm, although it may require a special act of congress for that purpose; and the present claim being founded upon such act, distinguishes it from the doctrine of this court in the cases of Foster n. .Neilson, 2 Pet. 253, and Garcia y. Lee, 12 Ibid, 511. And such claims have been recognised by this court as existing claims, and not treated as being absolutely void. In the case of J)elacroi,x. v. Chamberlain, 12 Wheat. 599, an order of survey, issued during this period, came under the consideration of the court. It bore date in the year 1806. The court said, this order of survey was not sufficient to support an action of ejectment, not having been recorded or passed upon by the board of commissioners, so as to vest a legal title. But the court observed, that this order of survey bears date at a time when the Spanish authorities were in the actual possession of Mobile, where the land lies, and ]t was claimed as a part of the Floridas, then belonging to the Spanish erown ; and the United States claimed it as a part of Louisiana. That the I uited States, having since purchased the Floridas, ■without having previously settled the controverted boundary, rendered it unnecessary to examine f ese conflicting claims. And the court add, if the United States and Spain ad settled this dispute by treaty, before they extinguished the claim of 14 Pet.—20 305 SUPREME COURT Pollard v. Kibbe. [Jan’y 365 Spain to the Floridas, the boundary fixed by sueh treaty would have bound all parties. But as that was not done, the United States have never, so far • as we can discover, distinguished between the concessions of land, made by the Spanish authorities, within the disputed territory, while Spain was in the actual possession of it, from concessions of a similar character made by Spain, within her acknowledged limits. We will not, therefore,- raise any question upon the ground of want of authority in the intendant to make * - such concession. Nothing more *is to be understood from this case, than that the court did not consider the circumstance that the concession being made whilst Spain was in the actual possession of the territory, had prevented congress from acting on the subject of such concessions. And when congress, in the act of 26th of May 1824, excepts certain grants or orders of survey, made by Spain, during the time at which they had the power to grant the same, the conclusion is irresistible, that it included grants * like the one to William Pollard, now in question. This grant bears date on the 9th day of December, in the year 1809, and was rejected by the commissioners, for want of improvement and occupation ; and not because it was absolutely void. But suppose, it had been void, under the then existing laws in relation to these lands, it could not prevent congress from afterwards confirming this grant. The act of the 26th of March 1804, § 14 (2 U. S. •Stat. 287), declaring certain grants void, could not affect the one to Pollard, which was made in the year 1809, after the passage of that law. But if the construction of the act of the 26th of May 1824 is doubtful, as it is admitted to be, the act of the 2d July 1836 is entitled to great weight in aiding to remove that doubt. It is an act specially for the relief of William Pollard’s heirs. It declares, that there shall be and hereby is con- -firmed unto the heirs of William Pollard, deceased, a certain lot of ground, situated in the city of Mobile, and bounded as follows, to wit: On the north by what was formerly known as John Forbes & Company’s canal; on the west by Water street, on the south by the King’s wharf, and on the east by the channel of the river; being the description of the lot now in question ; and directing a patent to be issued in the usual form for the same. There is a proviso, declaring that this act shall not interfere with or affect the claims of third persons. But giving to this proviso its full force and effect, the enacting clause is a legislative construction of the act of 1824, and locates the patent thereby directed to be issued upon the lot now in question. They are acts in pari materia, and are to be construed together; and in such a manner, if the language will reasonably admit of it, as to permit both -acts to stand together and remain in full force. It is not to be presumed, that congress wrould grant or even simply release the right of the United States to land confessedly before granted. This would be only holding out inducements to litigation. And these two acts cannot stand together without considering the lot in question as coming within the exception of the act of 1824 ; and the act of 1836, as a confirmation (as it purports to be) of the title to the heirs of William Pollard. The judgment of the supreme court of the state of Alabama is, accor ingly, reversed. McLean, Justice.—I agree to the judgment of reversal in this case ; and as my opinion is mainly founded on the construction of the second section i 306 1840] OF THE UNITED STATES. *367 Pollard v. Kibbe. of the *act of 1824, without reference to the exceptions it contains, I will state, in a very few words, my views in regard to that section. It declares, “that all the right and claim of the United States to so many of the lots of ground east of Water street, and between Church street and North Boundary street, now known as w’ater lots, as are situated between the channel of the river and the front of the lots known, under the Spanish government, as water lots, in the said city of Mobile, whereon improvements have been made, be and the same are hereby vested in the several proprietors and occupants of each of the lots heretofore fronting on the river Mobile ; except in cases where such proprietor or occupant has alienated his right to any such lot, now designated as a water lot, or the Spanish government has made a new grant,” &c. The lots first named in this section are those to which the right of the United States is relinquished ; and those lots are now denominated water lots, in contradistinction to those called water lots under the Spanish government. “ A.11 the right and claim of the United States is relinquished to so many of the lots of ground then follows a description of the locality of these lots, lying “ east of Water street, and between Church street and North Boundary street, now known as water lots, as are situated between the channel of the river and the front of the lots known, under the Spanish government, as water lots, in the said city of Mobile and here the description of the locality of these lots ends, and the words “ whereon improvements have been made,” follow. Now, I entertain no doubt, the improvements must be made on the lots first named, and to which the United States relinquish their right; and not on those lots named merely to show the local situation of the present water lots. And this is the construction given to the section by the supreme court of Alabama. The improvements then must be made on the water lot; and the lot in controversy in this case is a water lot. The court instructed the jury, that “ if the lot claimed by the plaintiffs had been improved, at and previous to the 26th May 1824, and was east of Water street, and immediately in front of the lot so conveyed to John Forbes & Company, then the lot claimed, passed, by the act of congress, to those at that time owning and occupying the lot so as above conveyed to John Forbes & Company; and that it was immaterial who made the improvements on the disputed lot.” The second section gives to the proprietor of the lot fronting the water lot, such water lot, provided it has heen improved. Now, two things must concur, to give a title under this act; and these ar°, proprietorship of the front lot, and improvements on the water lot. But by whom must these improvements be made or owned, at the passage of the law ? The act does not specify ; and the court instructed the jury that if improvements were made, it was not material by whom they were wade. Can this be the true construction of the act ? Congress did not intend to give to the proprietor of the front lot *the water lot, unless it was improved ; nor did they intend to give to the person who had t 'wproved the water lot, such lot, unless he was the proprietor of the front wt. The improvements of the water lot were as essential to the claim of title, under this act, as the proprietorship of the front lot. And can it be Opposed, that congress intended to give the water lot to the proprietor of 307 SUPREME COURT Pollard V. Kibbe. [ Jan’y 368 the front lot, for the reason that the water lot had been improved by a stranger ? In other words, that congress, by a solemn act of legislation, would give a lot of ground to one man, because it had been improved by another ? This is the principle asserted by this construction ; and it is so unjust, and so directly opposed to the legislation of congress, in regard to the pre-emptive rights, on the ground of improvements, that I am unwilling to sanction it. There is no instance in the entire history of legislation by congress, where they have sanctioned such a principle. The policy has been to secure to the individual the benefits of his own labor and expenditure. And I am of the opinion, that unless the proprietor of the front lot was, on the 26th May 1824, also the proprietor of the improvements on the water lot, he can claim no title under the act. Baldwin, Justice.—I fully concur with the court on all the points embraced in their opinions, as well as the reasons assigned ; being fully satisfied with the construction given to the acts of congress of 1804, 1824 and 1836, I have no desire to add anything to the conclusive views presented in the opinion. But there are other important considerations necessarily connected with the merits of the case, which induce me to notice them in a separate opinion, leading to the same conclusion on other grounds. As it has been my assigned duty on several occasions to examine the subject of claims and titles to land, in the various territories which the United States acquired by cession from Georgia, France and Spain ; a broad and varied field of investigation has been opened, on a part of which there has been no opinion of this court as yet delivered. That part is a review of the political condition of the territory between the Perdido and Mississippi, from 1800 to 1821, under the Louisiana treaty, the various acts of the executive and legislative departments of this government, in relation to its cession, occupation, government and adjustment of claims therein, the constitution and laws of nations, before the ratification of the treaty of 1819 ; and in connection with that treaty, the judicial exposition of both treaties by this court. It is a subject of high concern to numerous claimants of land within that territory; to the United States, both in interest and in relation to the formal complaints made by Spain of the omission “ to cause the grants of the king to be respected, according to the stipulation of the eighth article of the treaty of 1819.” This complaint was made soon after the decision of the case of Foster v. Neilson, in 1829; and in 1832, the secretary * of state, after the decision of the case of * Arredondo, made to ihe J house of representatives a long and f-ull report in relation to these grants; in which he states the opinion of the executive department to be most decidedly in favor of their confirmation, on every ground on which they could be considered ; and especially, on the faith and honor of the United States pledged in the treaty. He felt himself to be unable to answer what he declared to be the just demands and complaints of Spain, and assigned as the sole reason why the executive had not recommended an immediate confirmation of the grants by congress, the two decisions of t is court in those two cases. Under such circumstances, I take this occasion to throw this responsibility from the court, in the course now pursued, and hope to show most clearly that those decisions have hitherto been much missapprehended ; an 308 1840] OF THE UNITED STATES. * 369 Pollard v. Kibbe. when taken in connection with subsequent ones, they must conclusively establish the right of the grantees of Spain in the disputed territory, derived from grants made between 1803 and 1810, while Spain was in the undisputed possession, west of the Perdido, independently of the treaty of 1819 ; d fortiori, by its stipulations. In so doing, I admit in the fullest manner, for all the purposes of this case, and the principles it involves, that this court is bound to take the east boundary of Louisiana to be the Perdido ; that it was a political question, which having been settled by the political departments of the government, cannot be questioned in this ; and that, as’held in Foster v. Neilson, 2 Pet. 309, no title can be maintained under a Spanish grant, “ singly ” on the ground, that the Spanish construction of the treaty of 1803 was right, and the American construction wrong. Keeping this principle in view, I shall consider the title of the plaintiff, under a Spanish concession, made in 1809, by the lawful authority of the king, independent of its confirmation by any special act of congress, as resting on its validity by the laws of nations, the constitution of the Uni+ed States, the ordinance of 1787, the two treaties, and the general course of legislation by congress, in relation to government and property in the disputed territory. It will be observed, that the claim of the plaintiff was duly filed and recorded, pursuant to the acts of congress for adjusting claims to land west of the Perdido ; he is, therefore, not deprived of any benefit which they confer, or rights which are reserved, but may rely on any support they may give to his title, by his having complied with all the requisitions enjoined. On a subject so broad, so interesting, so vitally affecting the rights of private property, under concessions by foreign powers, or the states of this Union, to the United States, the course of argument or opinion has ' hitherto been too limited, on the course of the political departments of the government, to save the necessity of the course herein pursued. It has been rather assumed, than deduced from that detailed investigation whjch can alone lead to a satisfactory result, on matters so complicated and interwoven into our system of territorial, state and federal governments. *In 1800, Spain ceded Louisiana to France, by the treaty of St. r*ghg Ildefonso, but retained peaceable possession till May 1803, when it was surrendered to France, in the same manner in which it was ceded by the previous treaty, declaring that, “ the limits of both shores of the Mississippi shall remain for ever fixed by the treaty of Paris, in 1763 ; and consequently, the settlements from the river Manshack or Iberville, to the line which divides the American territory from the dominions of the king, shall remain in the possession of Spain, and annexed to West Florida. See 2 Pet. 303 ; White’s Comp. 164. In October 1803, congress authorized the pres-ident to take possession of and occupy the territory ceded by France to the United States, and to organize a temporary government, “ for maintaining and protecting the inhabitants of Louisiana, in the free enjoyment of their liberty, property and religion.” (2 U. S. Stat. 243.) In December following, France surrendered the province to the United Sates, as it was ceded by Spain to France, under the same clauses and conditions, &c. ; and as this court have declared, “ in every respect with all its rights and appurtenances, as it was held by France, and received by France from Spain.” 10 Pet. 732. Spain then was in the possession of the disputed territory, by the consent 309 370 - SUPREME COURT [Jan’y Pollard v. Kibbe. of France, expressed in the surrender of Louisiana ; and the acceptance of the surrender by France to the United States, as she received it from Spain, was equally a consent by the United States to the continuance of the possession of Spain. Though the United States soon asserted her right to the “ sovereignty and propriety ” over and in the territory as far east as the Perdido, no attempt was made to disturb the possession of Spain till 1810. From 1803, till October 1810, the condition of the country was this: Spain was the acknowledged sovereign de facto, in the peaceable exercise of all the powers of government, and claiming to be also the sovereign de jure ; the United States neither asserting nor exercising the powers of a.govern-ment de facto, but asserting her right as sovereign de jure, under the treaty of 1803 ; and as this court said, “No practical application of the laws of the United States to this part of the territory was attempted, nor could be made, while the country remained in the actual possession of a foreign power.” 2 Pet. 304. * In October 1810, the president, by his proclamation, ordered military possession to be taken of the disputed territory ; declared the laws of the United States to be in force within it; and ordered the inhabitants to be obedient thereto ; but is was also declared, that in the hands of the United States, the territory was “ still left a subject of fair and friendly negotiation and adjustment,” &c. And, “ under the full assurance that the inhabitants shall be protected in the enjoyment of their liberty, property and religion.” See 3 State Papers, Foreign Relations, 397-8 ; Proclamation at large. At this time, there was a revolutionary convention in session at Baton Rouge, within the disputed territory, claiming to be an independent * i *government, to be admitted into the Union ; and also claiming the $ « uniocated lands ” therein. Ibid. 395-6. In replying to these prop- ositions, the secretary of state, in November 1810, in asserting the right of the United States as far as the Perdido, by the treaty of 1803, says, “ the delivery of possession has, indeed, been deferred, and the procrastination has been heretofore acquiesced in by this government, from a hope, patiently indulged, that amicable negotiation would accomplish the purpose of the United States,” &c. The secretary then makes these remarks : “ The vacant land of this territory, thrown into common stock with all the other vacant land of the Union, will be a property in common for the national uses of all the people of the United States. The community of interest upon which this government invariably acts, the liberal policy which it has uniformly displayed towards the people of the territqries (a part of which policy has ever been a just regard to honest settlers), will, nevertheless, be a sufficient pledge to the inhabitants of West Florida, for the early and continued attention of the federal legislature to their situation and their wants.” Ibid. 398. In inclosing the president’s proclamation to the governor of Mississippi, the secretary of state directs him to do whatever his powers will warrant, to “ secure to the inhabitants the peaceable enjoyment of their liberty, property and religion ; and to place them, as far as may c, on the same footing with the inhabitants of the other districts under is authority.” Ibid. 396-7. In January 1811, the president recommended to congress, in a con, fidential message, the expediency of authorizing him “ to take temporary possession of any part of Florida, in pursuance of arrangements wit e 310 1840] OF THE UNITED STATES. 371 Pollard v. KiLbe. Spanish authorities, and for making provision for the government of the same during such possession.” 3 State Papers, Foreign Affairs, 394-5. A law was accordingly passed, giving the authority required, as to the territory east of the Perdido, and south of Georgia and the Mississippi territory, and for organizing a government for the protection and maintenance of the inhabitants of the said territory, in the full enjoyment of their liberty, property and religion. At the same time, congress resolved, under certain contingencies, on the “ temporary occupation of the territory adjoining the south border of the United States ; they at the same time declare, that the said territory shall in their hands remain subject to future negotiation.” (2 U. S. Stat. 666.) In February 1813, the president was authorized “to occupy and hold all that tract of country called West Florida, which lies west of the Perdido, not now in the possession of the United States for -which purpose, and “ for affording protection to the inhabitants, under the authority of the United States, the president was authorized to employ the military and naval force of the United States.” (6 Laws of the United States 593.) This resolution and law remained unpublished till 1821, after the final ratification •of the *treaty of 1819 ; but under them, the whole disputed territory was taken and held by the United States, till it was annexed to the l 3‘2 adjacent states by acts of congress. In 1812, that portion which was situated between the Iberville, the Mississippi, the east branch of Pearl river, and the Mississippi territory, was annexed to Louisiana, on condition that a law should be passed “ securing to the people of the said territory, equal rights, privileges, benefits and advantages, with those enjoyed by the people of the other parts of the state.” (See 2 U. S. Stat. 708.) A law was passed by Louisiana, in compliance with this condition. In May of the same year, that portion which was situated between the east boundary of Louisiana and the Perdido, was annexed to the Mississippi territory, to be governed “ by the laws now in force, or which may be hereafter enacted, and the laws and ordinances of the United States relative thereto, as if the same had originally formed a part thereof,” &c. (Ibid. 734) ; by subsequent acts, this part of the territory, was divided between Mississippi and Alabama, and thence formed a part of those states, the former of which was admitted into tho Union, before the signature of the treaty of 1819, and the latter in December following. 2 Pet. 308. From this summary view of the course of the executive and legislative branches of the government, it is apparent, that they were in the assertion of the territorial rights of the United States, as claimed by them under the treaty of 1803 ; it is also apparent from the solemn pledges made by both departments, that the possession of the country was taken and held by force, yet subject to future negotiation as to the right of sovereignty and propriety, and full assurances to the inhabitants of being maintained and protected in the free enjoyment of their property. Before proceeding to the stipulations of either treaty, it is now necessary to notice those acts of congress which are referred to in the president’s proclamation of 1810, in which he declares, “ That the acts of congress re-ating to this territory, though contemplating a present possession by a foreign authority, have contemplated also, an eventual possession of the said 311 372 SUPREME COURT [Jan’y Pollard v. Kibbe. territory by the United States, and are accordingly so framed as to extend their operation to the same.” 3 State Papers, For. Aff. 397. The principles-of this proclamation were adopted by congress, whereby the laws which bound the inhabitants of the disputed territory, at the same time protected them in their rights of property, as completely as in the island of Orleans, or west of the Mississippi; these laws were suspended in their operation during the occupation of Spain, but applied to the whole country ceded by France to the United States, as soon as it came into their possession, and their provisions, from the first to the last, are of a uniform character. Whenever congress gave authority to take possession of the ceded territory, i and provide for its temporary government, the declared *object was, J “ to maintain and protect the inhabitants in the enjoyment of their property,” &c., as has been seen in the act of 1803. (2 U. S. Stat. 245.) By the act of 1804, it was provided, that “ no law shall be valid which is inconsistent with the laws and constitution of the United States.” (Ibid. 284.) “ The laws in force in the said territory, and not inconsistent with this act, shall continue in force until altered, modified or repealed.” (Ibid. 287.) The act of 1805, authorized a government similar to that of the Mississippi territory, and declared the ordinance of 1787 in force (except as to the descent of estates, and slavery), and continued the existing laws till altered, &c. ; it also authorized the admission of the territory into the Union, according to the third article of the treaty of 1803. (Ibid. 322.) As this act placed the whole ceded territory under the same system of government as Mississippi, we must look to the acts of 1798 and 1800, which organized a government over that territory (before any cession was made by Georgia to the United States), without the consent of Georgia, and while the whole territory over which the United States thus assumed jurisdiction,, was claimed by Georgia. This is necessary, in order to ascertain what effect the United States intended that their occupation of the territory then in controversy should have upon the rights of Georgia, or of the proprietors of lands claiming under that state. This is the more important, when the compact with Georgia, in 1802, is applied to the pre-existing state of things in the territory in dispute between her and the United States ; for it will be found in all respects analogous to the state of things existing in the country west of the Perdido, before the treaty of 1819 took effect ; and that the proclamation of the president, and the acts of congress, for taking the possession of West Florida, and annexing it to the contiguous territories first, and then to the states, contain pledges fully as strong, and to the same import, as those given to Georgia by this provision of the acts of 1798 and 1800: “That the establishment of the said government shall in no respect impair the right of the state of Georgia, or of any person or persons, either to the jurisdiction or the soil of the said territory ; but the rights and claims of the said state, and of all persons interested, are hereby declared to be as firm and available as if this act had never been made. (1 U. S. Stat. 549 ; 2 Ibid. 69.) In connection with this provision, it must be observed, that up to 1797, Spain had claimed and occupied the southern portion of the Mississippi territory, as part of Florida ; pursuant to the treaty of 1795, she surrendered all the country north of the 31° north latitude to the United States. The words, “ any” and “ all persons,” extend, therefore, as well to those 312 1840] OF THE UNITED STATES. 373 Pollard v. Kibbe. who claimed lands north of that line under Spain, as those who claimed under Georgia ; and as Spain had relinquished her rights to the territory, those of Georgia alone were noticed, while the grantees of either stood on the same precise footing under these laws. But the treaty of 1795, between *the United States and Spain, gave those claiming under her this pro-tection. “ It is also agreed, that the inhabitants of the territory of each party, shall respectively have free access to the courts of justice of the other ; and they shall be permitted to prosecute suits for the recovery of their property, &c.; and the proceedings and sentences of the said courts, shall be the same as if the contending parties had been citizens or subjects of the said (same) country.” Art 20. (8 U. S. Stat. 150.) This analogy between the condition of the territory south of the 31° north latitude, and west of the Perdido, and that which lies north thereof, has been made the more applicable by the act of 1812, which, it has been seen, applies the laws and ordinances of the United States, and the laws then in force, to the territory west of the Perdido, precisely as “ if it had formed originally a part of the Mississippi territory.” (2 U. S. Stat. 708.) And as the act of 1804 put the territorial government of Louisiana and Mississippi on the same footing, all the laws applicable to the one must be applied to the other and every part of it, whenever the United States assumed the powers of government. The act of 1805 adopted the ordinance of 1717, enacted for the government of the territory north and west of the Ohio in general terms ; the act of 1798 is more explicit in declaring, “that from the establishment of the said government, the people of the aforesaid territory shall be entitled to and enjoy all and singular the rights, privileges, and advantages granted “ by that ordinance,” in as full and ample manner as they are enjoyed “ by them.” (1 U. S. Stat. 550.) Among these rights, &c., are that of trial by jury, the writ of habeas corpus, judicial proceedings according to the course of the common law, the protection of property, the inviolability of contracts, and the right of admission into the Union, on an equal footing with the original states. (Ibid. 52, n.) In addition to which, the third article of the Louisiana treaty stipulates, that “the inhabitants of the ceded territory shallbe incorporated in the union of the United States, and admitted, as soon as possible, according to the principles of the federal constitution, to the enjoyment of all the rights, advantages and immunities of citizens of the United States ; and in the meantime, they shall be maintained and protected in the free enjoyment of their liberty, property and the religion they profess.” This, then, was the condition of the disputed territory and its inhabitants, from the time the United States took possession and governed it as a part of their territory. The right of sovereignty and general propriety remained subject to pending negotiation ; the civil rights of the people, and their rights of property were protected by various acts of congress : the ordinance of 1717, the treaty of 1803, and the constitution of the United states. The local laws remained in force till altered, and the political rights of the people were such as existed in all the other territories. 1 Pet. 542. * hen these territories became states, the inhabitants thereof became, citizens of those states, and as such, entitled to all the rights which p^^ citizens enjoyed in other states ; and the subjects of Spain, who owned or claimed property, had, by the 20th article of the treaty of 1795, 313 3V5 SUPREME COURT [Jan’y Pollard v. Kibbe. the same right of suing fox’ its recovery in the courts of the United States as one of its citizens had. 9 Pet. 234. On this state of things, the treaty of 1819 had no influence; at the time, of its ratification, the whole disputed territory was annexed to the contiguous states ; the inhabitants were incorporated in the Union, and were citizens of the United States ; and the respective states, in virtue of what this court most truly denominate acts of “ sovereign power/’ exercised by them under the treaty of 1803, over a part of what the United States insisted, and Spain denied, was a part of Louisiana ; claiming only to stand in the place of the king, and during negotiation, the exercise the powers and rights which he had exercised till 1810 ; the United States had nevei' attempted by law to impair any right of private property, or to insert such stipulation into the treaty of 1819 (2 White’s Rec. 498), but expressly disclaimed such intention, and admitted the validity of all fair grants. Ibid. 499, &c. Every public act of congress, from 1803 till 1813, which authorized the president to take possession of Louisiana, or to establish therein a temporary government, and every law which related to the subject, contained an express guarantee of property; the same guarantee was also given by the president in 1810, when in virtue of the act of 1-803, he took forcible and military possession of the disputed territory. And congress confirmed this guarantee by their secret acts of 1811 and 1813 ; unless protection to the inhabitants of the territory consisted in confiscating theii’ lands, and depriving them of the property acquired under the government and laws of Spain, while she held possession, with the consent of the United States. Every act of the executive and legislative branches of the government shows, that the contest with Spain was for the right of sovereignty ovex* the territory, and the propriety in the vacant land therein ; not for the right to what had been granted according to the laws of Spain, or which had otherwise become private property. 6 Pet. 735. Claiming the territory between the Perdido and the Mississippi by the Louisiana treaty, the United States were bound, by the express terms of the second article, which includes “ Islands belonging to Louisiana, all public lots and squares, vacant lands, and all public buildings, fortifications, barracks and other edifices, which are not private property.” 7 Pet. 87-8. No land which was not vacant (no land which was private property), passed to the United States, but was excepted from the cession, not only by the second article, but by the guarantee by the United States, to the inhabitants, in the third article, of the free enjoyment of theii' property, until their admission into the Union. From the pledge to maintain and protect this right, the United States never set up any absolution, nor from the pledge to hold the territory subject to future negotiation. What was considered as vacanl land, by the executive department, *in 1810, has been seen 1 J by the letter of the secretary of state, on the same day as the proclamation of the president, that land which was to be throwm into the common stock, with all the other vacant land of the United States, foi the national uses of all the people thereof ; land which remained as a part of the royal domain, when the United States took possession, in virtue of the treaty of 1803, which was not private property. This state of things as to government and property in the disputed territory, fully justified the view which the executive department of the gov-314 1840] OF THE UNITED STATES * 376 Pollard v. Kibbe. ernment took of this subject in 1832, which was in perfect accordance with the proclamation of the president, twenty-two years before, and with the course of the legislation from 1811 to 1819, in relation to the rights of private property in the disputed territory, held under grants of the Spanish authorities, before the United States took possession. It was, by both departments, the most solemn recognition of the principle, that a contest between the two governments concerning territorial boundary, did not and should not impair individual rights of property, and of its practical operation on grants made by the government in possession ; and such recognition carried with it the most sacred obligations, to carry that principle out in all its consequences, independently of any stipulation in the treaty of 1819. By third article of the Louisiana treaty, the United States were bound to protect and maintain the inhabitants of the ceded territory, “ in the free enjoyment” of their “ property,” until they were incorporated into the Union ; and when so incorporated, to admit them “to the enjoyment of all the rights, advantages and immunities of citizens of the United States.” From the moment of such incorporation, the constitution of the United States, and its amendments, interposed between the inhabitants and the legislative power of the United States, the same guarantee which any citizen of any other state had a right to claim for the enjoyment of his property ; and every proprietor, alien or citizen, had the same constitutional right to invoke the protection of the judicial power of the state or Union, against the invasion of his rights of person or property, wherever he might be located. 2 Pet. 235. That such incorporation was by acts “ of sovereign power by the United States,” exerted by military operations, expelling the existing authority of Spain, and compelling the inhabitants to submit to that of the United States, so far from diminishing, increases their constitutional and treaty obligation ; for such forced submission is in the nature of articles of capitulation, the observance of which is enjoined by the laws and practice of all civilized nations. 1 Pet. 542. The proclamation of the president and the acts of congress declared the terms on which the United States established their authority ; the inhabitants submitted, and thereby became entitled to the threefold protection of the constitution, treaty and law of nations. 2 Dall. 1, &c. Had Spain made a voluntary transfer of the allegiance of her *sub-jects in this part of Louisiana, as she did in the residue, the duty of the United States could not have been doubted ; it never has been doubted by any department of the government, or any member of it, as to every other portion of the territory ceded by the treaty of 1803 ; and the universal opinion of the people and government has been, that the rights acquired, and the obligations imposed, by that treaty, were throughout concomitant. Spain, indeed, might deny the right of the United States west of the Perdido, to have become in any way strengthened by the annexation of that part of Louisiana to the adjacent states, by an act of war or mere sovereign power ; but when the United States undertook to construe and execute the treaty in their own way, and as they did, in asserting their rights accruing by the cession, every rule and principle of national honor, faith and law would be violated, if they should deny their duty to comply with the terms of the treaty, which alone gave them any right, or with the pledges which they gave, when they took possession in virtue of its stipulations. It matters not 315 SUPREME COURT Pollard v. Kibbe. [Jan’y 377 by what right the United States held the disputed territory, at the time of its incorporation into the Union ; had it been done without the color of right, or had East Florida been so incorporated, before the treaty of 1819, the consequences would have been the same ; by the very and sole act of such incorporation, the inhabitants became citizens of the United States, their property was protected, and alien proprietors became entitled to all right secured to them by any treaty between theix- sovereign and the United States. In addition to these considerations, the acts of congress, from 1803 till 1811, before the United States took forcible possession, which, as the president declared in his proclamation in 1810, were “so framed” as to apply to that territory, whenever the contemplated eventual possession by the United States should take place, secured to the inhabitants every protection which those laws, the treaty and ordinance of 1787 could impart; and no subsequent law has attempted to impair any right thus secured, denied its existence, or asserted any right in the United States to lands which wrere private property in 1810. A more cleax* and correct exposition of the policy and course of the United States cannot be presented, than the following remarks of the secretary of the treasury, in presenting a plan for the final adjustment of all claims by Spanish grants, pursuant to resolutions of the senate and house of representatives, in 1818. “In presenting a plan of final adjustment, in which no other description of claims are comprehended than those which are founded upon patents and concessions issued by the several governments which have at different times exercised sovereign jurisdiction ovex' the late province of Louisiana, as held by France, the undersigned, &c., has proceeded upon the conviction, that ample provision has already been made for the adjustment of all claims to lands contemplated by the resolution, founded upon evidence inferior to patents and concessions. *He has arrived at this conviction, by a J careful examination of the several acts of congress fox' ascertaining and adjusting land titles in Louisiana, which have been passed since the 20th day of December 1803, the period at which possession was taken of that province by the United States. This long series of acts, commencing with the 26th March 1804, and terminating with the 29th April 1816, presents an uninterrupted and uniform course of relaxation in favor of land-claimants of every description. This relaxation has generally been effected by com-, prehending descriptions of cases not recognised by previous acts, by extending the time within which notices of claims and production of evidence were required, and by giving authority, not only to decide upon such claims, but to revise and confirm such as had been previously rejected. When it is considered, that in all these respects, relaxations have been frequent, and that the evidence upon which the claims have, in the first instance, and in each successive revision, been decided, has in most cases been that alone which has been produced by the party in interest, it is extremely improbable, that injustice has been done by the rejection of claims which ought to have been confirmed. Considering, then, that the titles to lands in the state of Louisiana, west of the east boundary of the island of New Orleans, so far as they are derived from or dependent upon any act of congress, are correctly ana finally settled ; nothing more is necessary than to prescribe a rule by whic the validity of titles not dependent upon the acts of congress may e promptly and legally determined,” &c. 8 State Papers, Public Lands, 393. 316 1840] 378 OF THE UNITED STATES. Pollard v. Kibbe. The secretary then presented a bill, providing for the final adjustment of claims throughout the whole extent of Louisiana, including those in the disputed territory, but it was not enacted into a law ; congress however continued to act as they had before done, in a spirit of unceasing liberality towards claimants, each successive law relaxing from the strictness of former ones. This is apparent from an inspection of the various acts of congress from 1805, in relation generally to claims to land in Louisiana ; as the principles of this case require a reference only to those laws which relate to the territory between the Perdido and the Mississippi, the others need not be noticed any further than in the preceding general review by the secretary of the treasury, and the following declaration made by this court in 1827, in reference to the legislation of congress, which is quoted in the opinion in the present case : that “the United States have never, so far as we can -discover, distinguished between the concessions of land made by the Spanish authorities, within the disputed territory, whilst Spain was in the actual occupation of it, from concessions of a similar character made by Spain within the acknowledged limits.” 12 Wheat. 600-1. This declaration will -be found to be fully justified by a reference to all the acts of congress, in relation not only to their whole territory acquired by the treaty of 1803, but to that which was acquired *by the compact or treaty of cession r#Q(_o * between Georgia and the United States, in 1802. By this compact, *-Georgia ceded to the United States the right of soil and jurisdiction, to all the territory within her chartered boundaries, which was situated west of the Chatahouchee, on certain conditions ; one of which was, that all grants of land made by the British or Spanish governments, before the 25th October 1795, &c , should be confirmed; to carry which into effect, various laws were passed in 1803, 1804 and 1805. (2 U. S. Stat. 229, 283, 323.) These acts related to the territory north of 31° of latitude, which had been the subject of controversy between the governments of Florida, while under Great Britain, and Georgia, within which the governor of West Florida had made grants, before the cession to Spain, by the treaty of peace in 1783 ; within which Spain made grants from that time till 1797, when she gave up possession to the United States ; and within which Georgia had also made grants up to the Mississippi. It was, therefore, in the strictest sense, dis- _ puted territory, claimed by the three parties, the United States, Spain and Georgia, at the date of the grants. The laws relating to the adjustment of titles to land therein, necessarily referred to grants made by a government -de facto, which the United States denied was a government de jure ; and the laws, being on a kindred subject, would, of course, be analogous in their -provisions, and receive the same construction, as those which related to the territory which was in dispute between the United States and Spain from -1804 till 1821. In examining the provisions of all the laws for adjusting the claims to lands in Louisiana and Florida, they will be found to be patented from -those in relation to the compact with Georgia ; and, as will be seen hereafter, have been construed alike by this court. The first law wThich related . exclusively to claims to land west of the Perdido, was passed in 1812 ; the -previous laws applied generally to Louisiana as ceded by the treaty, making no distinction between that part which was disputed, and that which was in the possession of the United States, as surrendered in 1803. But as the 317 379 SUPREME COURT [Jan’y Pollard v. Kibbe. practical operation of the laws of the United States depended on the president, in his execution of the authority conferred on him by the act of 1803 (2 U. S. Stat. 245); it is evident, that these laws could not be carried into effect by establishing land-offices and organizing boards of commissioners to adjust claims to land within that part of the territory, which was at the time occupied and governed by Spain. No government can exercise legislative powers within the territory actually in the possession of another sovereign ; this can be done only when such possession is displaced by force, or surrendered by treaty, or otherwise ; hence it appears, that no provision was made for the adjustment of claims to lands west of the Perdido, till by the president’s proclamation, the resolution and acts of congress, the United States had obtained possession of the greater part of West Florida. Then the act of 1812 provided for the appointment of commissioners, with the powers conferred by former laws ; directed all ^claimants to lands in 1 the disputed territory, to deliver notice and evidence of their claims within a limited time, and to state the written evidence thereof ; whether the claims arose under the British, French or Spanish governments ; together with the nature and extent thereof, &c. : provided, that where the claim is by a complete grant, it shall not be necessary to have any other evidence entered than the original grant, order of survey and plat of the land. On failure to deliver notice of the claim as required by law, the claim shall never aftei’ be confirmed or recognised by the United States, or any written evidence thereof, which shall not be recorded^ ever after be admitted in evidence in any court of the United States, against any grant which may thereafter be made by the United States. (2 U. S. Stat. 715.) The commissioners are empowered to inquire into the justice and validity of all claims filed with them ; and it is made their duty to ascertain whether the land claimed has been inhabited and cultivated, when it commenced, when it was surveyed, by whom, on what authority ; and every mattei’ which may affect the justice and validity of the claim ; to arrange the claims into classes, according to their respective merits, and to make a report thereon for the final action of congress. (Ibid.) By the act of 1814, the commissioners were directed to receive evidence in support of any claims not embraced in the former law. (3 Ibid. 121.) Pursuant to these laws, reports were made by the commissioners classifying the claims thus : 1. Claims founded on complete British, French or Spanish grants, which in their opinion are valid, agreeable to the laws, usages and customs of such governments-; in all, 430 claims. 2. Claims founded on orders of survey (requette), permission to settle, or other written evidence of claim, derived from either government, which ought to be confirmed ; in all, 426 claims. 3. Claims founded on complete grants said to be derived under such governments, w’hich, in the opinion of the commissioners, are not valid ; in all, 58 claims. 4. Claims founded on orders of survey, &c., which ought not to be confirmed ; in all, 298. 5. Claims of actual settlers, not derived from either government; ir. all, 1420. See Reports of Commissioners ; 3 State Papers, Public Lands, 6, 7, 5, 38-48, 13, 58, 59, 66, 67-76, 254-68. The reasons for rejecting the third and fourth classes of claims, are founded on the 14th section of the act of 1804 ; that they were made after the cession by France to the United States ; that the grants were unusually 318 1840] OF THE UNITED STATES. 38G Pollard v. Kibbe. large, and made after Spain had ceased to have any right or interest in the soil: but it is added, “admitting the claim of the United States to the country above mentioned to be unquestionable (and I see no reason to doubt it), the question then arises, how far the possession of that country by the Spanish government, after the right of the United States accrued, ought to *affect those claims which were granted by the former government, during the time which intervened between the purchase, and the time when possession was taken by the United States? If the United States had taken possession of West Florida at the same time that they did of Louisiana west of the Mississippi, many serious injuries to individuals might have been prevented. As this was not the case, it becomes an inquiry of interest and importance, whether the government is not morally bound, both by considerations of equity and policy, to make them a compensation commensurate to the injuries they may have sustained. This could be done by making them donations of any quantity of land which the government may deem just; particularly that class of claimants who have improved and cultivated their lands. They are not numerous ; and with few exceptions, their claims are moderate. It may not be impertinent also to remark, that generally speaking, they were such persons as were most liable to be deceived by the Spanish officers. In relation to that class of claimants wrho have not inhabited or cultivated their lands, which is generally the case with those who hold large claims, it appears to the commissioner, that the government of the United States is not legally bound to confirm them. Nevertheless, from a variety of considerations which will, doubtless, enter into the decision of this question, the government may deem it politic, either to confirm their claims to a certain extent, or in some other way to effect a compromise with them. Their unlimited confirmation would, in the opinion of your commissioner, seriously injure many individuals, some of whom probably resided on the lands before they were surveyed for the patentees.” 3 State Papers, Pub. Lands, 66. The reasons for adjudging the claims of the first class to be valid, are, that they “ comprehend patents derived from the British and Spanish governments, at a time when they possessed and exercised the undisputed sovereignty of the soil; and they ought, in the opinion of the undersigned commissioner, to be confirmed by the United States.” 3 State Papers, Pub. Lands, 66. That he alluded to the sovereignty de facto, is evident; for the list of cases under this class is that in which there appear eighty-six cases of grants, made by Spain after the date of the Louisiana treaty ; on twentyseven of which no settlements were made till after the 20th December 1803. This is the more apparent in the reasons for confirming the claims of the second class, under incomplete titles. “ Those made by Miro, &c., were originated by the Spanish authorities, prior to the purchase of Louisiana by the United States, and agreeably to the laws, usages and customs of the then existing government, would have been completed by the same power that made them.” 3 State Papers, Pub. Lands, 66. In relation to the claims issued by Morales, subsequently to the aforesaid “ purchase,” &c., he observes, that “ although, in his estimation, they do not occupy the same grade with those of the first class, *yet he conceives it just and equitable r*gg2 that they should be confirmed. This opinion is not predicated upon the validity of their orders of survey, but simply upon the fact, that they 319 SUPREME COURT Pollai'd v. Kibbe. [Jan’y 382 occupied and cultivated their lands, and complied with all the requisitions of the government which, at that time, exercised ownership ovci’ the soil. By reference to the register, it will be seen, that some of the last-mentioned claims exceed in quantity the ordinary donations made by the Spanish government, prior to the purchase of Louisiana by the United States. When this is the case, it is believed, the government of the United States may limit its confirmation to any extent which it may be deemed just, both in regard to the number of arpents in each tract, and the number of tracts claimed by the same person.” In this class of incomplete titles, there are two hundred and sixty claims, by orders of survey, &c., made after the treaty of 1803, on few of which settlements were made till after 20th December 1803. These reports were transmitted according to law, and laid before congress in 1816. 3 State Papers 6. In April 1818, the senate and house of representatives instructed the secretary of the treasury to report a plan for the final adjustment and settlement of these claims ; which he submitted in December following, accompanied with the draught of a bill enacted 3d March 1819, and classing the claims as follows : 1. Claims founded on complete grants from the Spanish government, which are, in the opinion of the commissioners, valid, and agreeable to the laws, usages and customs of the said government. The first section declares, that “ they be, and the same are hereby, recognised as valid and complete titles, against any claim on the part of the United States, or right derived from the United States.” And certain claims under British grants are so recognised. (3 U. S. Stat. 528.) 2. Claims founded on orders of survey, permission to settle, requette, or any written evidence of claim derived from Spain before 20th December 1803, and the land cultivated, &c., before that day ; which, in the opinion of the commissioners, ought to be confirmed. The second section declares that they lt shall be confirmed in the same manner as if the title had been completed.” Ibid ; Burchard 316. 3. All other claims comprised in the reports of the commissioners, and which ought, in their opinion, to be confirmed, “ the claimant shall be entitled to a donation not exceeding 1280 acres,” &c. *4. All persons embraced in the reports who have no written evidence of claim, and had settled the land claimed before the 15th April 1813, “shall be entitled to the same as a donation,” not exceeding 640 acres. 5. Every person in the list of actual settlers, who has no written evidence of title, and on the 12th April 1814, had inhabited or cultivated a tract of land, “ shall be entitled to a preference on becoming a purchaser.’ , *Time for filing claims is extended, and provision is made for a J revision of claims which had not been recommended for confirmation. Under the provisions of the act of 1819, the commissioners reported numerous other claims for confirmation, comprising all classes. (See 3 State Papers, Pub. Lands 436, 442, 447-51), including lots in the town of Mobile ; which reports were acted on by congress, by the act of 8th May 1822, as to the lots in Mobile (3 U. S. Stat. 699); and as to lands, by an act of the same date. (Ibid. 797.) In both these acts, the claims are classed as in the act of 1819 ; complete grants are recognised as valid, &c.; incomplete grants are confirmed, &c.; and donations made to settlers, &c., as was done by 320 1840] OF THE UNITED STATES. 383 Poliard v. Kibbe. that act : and the last recognises the laws, usages and customs of Spain, as the test of a grant being complete to vest the title. Both the acts of 1819 and 1822 being founded on the reports of the commissioners in 1816 and 1820, must be taken with reference thereto ; and recognising the claims therein reported as valid, to be complete titles, by • their intrinsic effect. In the report of 1816, the commissioner says, those claims of the first class, “ being founded on complete grants of former governments, we think, are good in themselves, on general principles, and therefore, require no confirmation by the government of the United States to give them validity ” (3 State Papers 267); and in that of 1820, that “they are certainly entitled to unqualified confirmation (Ibid. 441); and in relation to surveys on incomplete grants, the same rule is adopted in relation to those laws, customs and usages. Section 4th directs the register and receiver, &c., except in relation to perfect titles, as recognised in the first section of the acts of 1819 and 1822, shall have power to direct the manner in which all lands claimed thereby shall be surveyed and located ; having regard to the laws, usages and customs of the Spanish government on that subject, and also to the mode adopted by the United States (3 U. S. Stat. 768); Burchard 352 ; 4 Story 2168. Subsequent laws extended the time for filing claims, and various reports continued to be made and laid before congress ; these laws were more liberal in their provisions than former ones, in accordance with the general policy of congress, and more especially on account of a strong remonstrance by the legislature of Louisiana on the subject. See 3 State Papers 430, 432 ; also, 3 Story 1907, 1909, 1968, 2009, 2017 ; Burchard 312, 394, 404. By the act of 1832, provision was made for the adjustment of all claims filed by 1st July 1833 ; the sales of land in the disputed territory were suspended for one year ; and where claims were unconfirmed, but were embraced within the provisions of previous laws, and the land had been sold by the United States, the owners were entitled to receive the purchase-money for which the land was sold at public sale. (4 U. S. Stat. 561.) Pursuant to this act, reports were made and confirmed by the act of 1835 (Ibid. 749); and decisions in favor of land-claimants *pursuant to the rHs act of 1835, were confirmed by the act of 1836. 4 Story 2514. L $$ From this review of the course of the executive branch of the government in 1810, and the decisive opinion expressed in 1832, as to the title to land in the disputed territory being valid in the view of the United States and Spain, during the negotiations which preceded the treaty of 1819 ; and from the whole legislation of congress from 1803 till 1836, there can remain no ground for mistaking their mutual understanding of the effect of the treaty of 1803, in its obligation on the United States to protect the private pioperty of individuals in the disputed territory. In this respect, the treaty ^f 1819 was not taken into consideration ; for the United States were bound y every guarantee which a government could give to the people, as strongly I .8 any new treaty would bind them ; but a new treaty w’as necessary, to dis-mcumber the disputed territory from the pledges under which the United . tates took and held possession from 1810. \ To this state of the disputed territory, as developed in the preceding leview.in relation to its government, and the rights of private property uimg an adversary claim by Spain and the United States, and pending 14 Pet.—21 321 [Jan’y SUPREME COURT Pollard V. Kibbe. 384 negotiations for seventeen years, the final treaty must be referred, in order to ascertain its bearing on this case. The subjects of controversy were, the east and west boundary of Louisiana, according to the cession by Spain to France in 1800, and by France to the United States in 1803. The objects of the treaty were : 1. To define the west boundary : 2. To procure a cession of East Florida to the United States : 3. To settle the controversy as to the east boundary by a general cession and relinquishment of^all the claims and pretensions of Spain east of the Mississippi: and 4. To stipulate the terms and conditions on which all past controversies should be terminated, and the cession made. The title of the treaty shows its nature : “ A treaty of amity, settlement' and limits its declared objects, and the intention of the parties are, “ the adjustment of all differences,” “to finally settle, determine and adjust all differences and pretensions by a treaty,”' “ the restoration and permanent establishment of mutual aud sincere friendship, to consolidate, confirm, and for evei’ maintain, the good correspondence which happily prevails, and with the most earnest desire of conciliation, and with the object of putting an end to all the differences which have existed between them.” See the preamble to the treaty and the seventh article. Art. 1. There shall be a firm and inviolable peace and sincere friendship between the United States and their citizens and his Catholic Majesty,, his successors, and subjects, without exception of persons or places. Art. 2. His Catholic Majesty cedes to the United States, “ all the territories which belong to him east of the Mississippi, known by the name of East and West Florida,” &c. ; “and all vacant lands which are not private property/’ *Art. 3. The first clause fixes the west boundary of Louisiana at J the Sabine, &c. By the second clause, his Catholic Majesty “ cedes to the United States all his rights, claims and pretensions to any territory east of said lineand for ever renounced them. Art. 8. Stipulates for the confirmation and ratification of “ all the grants of land made before the 24th January 1818, by his Catholic Majesty or his lawful authorities, in the said territories, ceded by his Catholic Majesty to-the United States,” &c. It is not necessary to take any further notice of the other parts of this treaty, or give any detail of its provisions ; it suffices for all the purposes of this case, to consider it as having effected all its declared objects, according to the declared intention of the parties, without exception of persons or places. So both governments have ever considered it; and the once disputed territory has been peaceably held by the United States, according to the terms of its stipulations, and not by the mere force of the Louisiana treaty, or “the acts of sovereign power,” exercised by the United States previous to the ratification. The political departments of the government have uniformly recognised its application to the disputed territory, as a cession and renunciation by Spain of all her claims and pretensions, and thereby putting a final end to all existing differences and disputes concerning boundary, under the treaties of 1800 and 1803. This court has also so considered it, by declaring, in 1827, that “ the United States have since obtained the Floridas by purchase and cession from Spain” (2 Wheat. 600); and in the first sentence of their opinion in Garcia v. iee, repeating this declaration in lan- 322 1840] 385 OF THE UNITED STATES. Pollard v. Kibbe. guage which cannot be misapprehended or misapplied, in these words : “ The land is situated in the state of Louisiana, and in the territory lying north of the Iberville, and between the Perdido and the Mississippi, which was so long a subject of controversy between the United States and Spain ; and which was finally settled by cession of the Floridas to the United Spates, by the treaty of February 22d, 1819.” 12 Pet. 515. On this point, then, there is a perfect union of opinion by all the departments of the government, that this treaty applied to the disputed territory ; that it finally settled all former controversies concerning it, and that it was done by a cession by Spain, and a purchase'by the United States. These propositions are perfectly consistent with the assertion by the United States, of their original right to this territory under the former treaties ; they have bought their peace ; Spain has ceded her claims and pretensions ; though neither party has acknowledged the original right of the other (2 Pet. 310), yet both agree that, for the future, it belongs to the United States, in full sovereignty and propriety, as it was claimed by Spain. If, indeed, any doubt could be raised on the terms of the treaty, the interest of the United States requires, that they should be construed so as to effect the objects declared ; for if the cession and purchase do not include the disputed territory, the United States still hold it subject to future *negotiation, according to the declaration of the president in 1810, r% and congress in 1811. It has not and cannot be asserted, with truth, L that there is yet subsisting a controversy between Spain and the United States on this subject; nor can there be a suggestion of any act of cession, relinquishment by Spain, or any recognition of the right of the United States, unless it is found in the treaty of 1819 ; or any release of the pledge ’ under which possession was taken by force, unless by the operation of its stipulations upon the territory thus seized ; and further, if the confirmation of grants by the eighth article, does not extend to those made for lands west of the Perdido, the clause which annuls those made after 1818, and the grant to Vargas, is equally inapplicably to defeat them ; and if there is any part of East or West Florida to which the treaty does not apply, or any exception of persons or places within either is made, by any construction of any part of the treaty, it is an express contradiction of the first article, which negatives all exceptions. The treaty must then be taken as the court have declared it; or all its stipulations must be confined to East Florida, and that part of West Florida which lies east of the Perdido, leaving all controversies before subsisting in full force, as to territory west of that river. The nature and character of this treaty forbid an interpretation which would make it a violation of the honor and faith of the United States, so often pledged ; and jeopard their interest, by considering the disputed erritory to yet be in their hands, subject to future negotiation ; a conclusion from which there is no escape, if the negotiation which ended by the ratification of the treaty in 1821, did not settle all controversies. By refer-*ing to the terms of the ratification, there can be no doubt of the declared Meaning of the king of Spain, and the treaty-making power of the United fates, as well as to what was ceded to the United States, as the effect and °rce of the treaty when ratified, and the ratifications exchanged. In the aet of the king, it is important to observe, that he declares the cession to be 323 380 SUPREME COURT [Jan’y Pollard v. Kibbe. made by the second and third articles ; the bearing of which on the eighth article will be seen to have a most conclusive effect, when the case of Foster Neilson comes under review. The king says : “ Whereas, on the 22d February 1819, a treaty was concluded,” &c., “ consisting of sixteen articles, which had for their object the arrangement of differences and of limits between'both governments, and their respective territories, which are of the following form and literal tenor.” Here follows the treaty. “Therefore, having seen and examined the sixteen articles aforesaid, and having first obtained the consent and authority of the general Cortes of the nation, with respect to the cession mentioned and stipulated in the second and third articles, I approve and ratify all and every one of the articles referred to, and the clauses which are contained in them,” &c., “promising on the faith and word of a king, to execute and observe them, and to cause them to be executed and observed, entirely, as if I myself had signed them,” &c. *In pursuance of the advice and. consent of the senate, the presi-dent declared: “ I,” &c., “having seen and considered the treaty above recited, together with the ratification of his Catholic Majesty thereof, do,” &c., “ by there presents, accept, ratify and confirm the said treaty, and every clause and article thereof, as the same are herein set forth and after the exchange of ratifications, declared : “Now, therefore, to the end that the said treaty may be observed and performed with good faith on the part of the United States,” &c., “I do hereby enjoin and require all persons bearing office,” &c., “ and all others within the United States, faithfully to observe and fulfil the said treaty, and every clause and article thereof.” 6 Laws U. S. 628, 631. I cannot deem it necessary to reason on language like this, used in an act so solemn, by which two nations closed an inveterate controversy which had subsisted for seventeen years, on terms satisfactory to both ; in order to show what they intended as a mutual object, or whether they effected what they intended. An inspection of the treaty, from its title to the ratification, affords more conclusive evidence of its intention and effect than human ingenuity or reasoning can elicit by a commentary, or any effort to illustrate its provisions. It is what it purports, an amicable settlement of all past differences, without exception of persons or places, by a cession by one party of its rights to sovereignty, and the vacant land in the whole territory east of the Sabine river, which is not private property ; what is private property is excepted from the cession, by the the terms of the second and third articles ; and one of the conditions of the cession is, the confirmation and ratification of all grants made before a certain time, for lands in the ceded territories, excepting three. Compensation is made for mutual claims ; all past complaints are redressed, and the United States hold the disputed territory, freed from all past pledges, by the consent of Spain, and the stipulated confirmation of grants made by the king or his lawful authorities, saves his honor and faith pledged to the grantees. Peculiar force is to be given to this stipulation in the eighth article, when it is considered, that two full years elapsed between the signature and final ratification of the treaty ; and that the sole cause of the delay arose from those grants, one of which was for land west of the Perdido. 2 Pet. 312. Those having been annulled by the king, w’ere excepted from confirmation, leav ing all other fair grants within the stipulations of the eighth article, accor 324 1810] OF THE UNITED STATES. 38? Pollard v. Kibbe. ing to the declared intention of both negotiators of the treaty, of the parties thereto, and its true construction. Another decisive consideration of the effect of this treaty is presented, by taking it in connection with the treaty of 1803, and the various acts of the political departments of this government, before referred to; it applied to a territory which formed part of the states of this Union, and to its inhabitants, and other proprietors of land, who hold their property by the most sacred guarantee, and were already in the full fruition of *all the rights of citizens of the United j-* States, and the states to which the territory had been annexed. *- It must be remembered, that as the United States claimed the territory west of the Perdido, in virtue of the treaty of 1803, they must hold it subject to its obligations and the terms of the cession ; and that by first governing it as a portion of the territory of the United States, and afterwards annexing it to the adjacent states, the rights of property were protected by the ordinance of 1787, the constitution of the states, and of the United States. No new guarantee was given to the grantees of Spain, in the disputed territory, by the treaty of 1819 ; but it was a renewal, of all former pledges of the United States by the treaty of 1803, their acts, and the constitution, to neither of which Spain was a party ; but as Spain would neither cede nor abandon her claim, without a renewed pledge of nation to nation, in the most solemn of all international acts, the pledge was renewed both to the king, his subjects and grantees ; which was additional to all the previous promises and obligations of the United States to protect property, fairly and lawfully acquired, and maintain its free enjoyment. There is another view in which the treaty of 1819 must be considered, in order to give it its constitutional and intended effect, by operating directly on all the subjects to which it relates, where no future act is stipulated to be done by either party, or the thing stipulated is, in its nature, to be performed in future, as the incorporation of the territory and its inhabitants into the Union, which is necessarily a prospective act. But the cession by the king, and the confirmation of grants, must be taken to be acts *n ’ and since affirmed, with the exception of only Foster n. Neilson. .Whether that case, standing solitary and alone, shall stand in its glory or its ruins, a judicial monument, or a warning beacon, is not dependent on my opinion , my duty is performed by the preceding review of the law of tms case in a its various branches, which has led my mind to a conclusion necessari y 348 1840] OF THE UNITED STATES. 415 Pollard v. Kibbe. resulting from the established principles of constitutional, national and local law. 6. In ascertaining what are judicial principles and rules of decision, in testing the validity of titles, emanating from the Spanish authorities in the disputed territory, from 1804 till 1810, under the *treaty of 1803 or 1819 ; a general reference to the cases before recited ’will show, that •-with the single exception of a question of disputed boundary, every other question affecting title has been uniformly held to be strictly judicial. In Hunter n. Martin, the court established the general principle, that when a case arises under a treaty, the whole title of the parties must be examined and decided by the court, as well on the construction of the treaty and every matter bearing upon it. 1 Wheat. 352-60. In New Orleans v. De Armas, it was decided, that under the Louisiana treaty, the inhabitants had -a right to have their titles decided by the same tribunals which decide similar rights in other states (9 Pet. 235); and in New Orleans v. United States, an illustrious instance is found of the action of the courts of the United States, asserting the supremacy of a treaty, in protecting private property -against a series of acts of congress for nearly thirty years. 10 Pet. 734, 736. When the true construction of the Florida treaty was settled; in the case -of Arredondo, the court declared, as a consequence thereof : “ The proprietors could bring suits to recover them (the lands embraced in the grants confirmed by the treaty), and any question arising would be purely a judicial one.” 6 Pet. 741-2. So, in Percheman’s Case: “ Without it (the eighth article), the titles of individuals would remain as valid under the new government as they were under the old ; and those titles, at least, so far as they were consummate, might be asserted in the courts of the United States, independently of this article.” 7 Pet. 88. In Dela Croix v. Chamberlain, the question of boundary was considered to be political in its character, but every other question was treated as judicial. 12 Wheat. 600, 602. So, boundary was held in Foster n. Neilson, 2 Pet. 309, to be political. Yet in the same case, the court declared : “ Our constitution declares a treaty to be the law of the land ; it is, consequently, to be regarded in courts of justice, as equivalent to an act of the legislature, whenever it operates of _ itself without the aid of any legislative provisions.” Ibid. 314. I presume, it is scarcely necessary to inquire, whether the construction of an act of congress presents a judicial or political question. In Strother _ v. Lucas, the court say, “ treaties are the law of the land, and a rule of decision in all courts, their stipulations are, binding on the United States ; -m that of 1819, there is a present confirmation of all grants made before January 1818, with the exception of only three which had been previously -made, and were expressly omitted.” 12 Pet. 439. In Hhode Island v. Massachusetts, it was held, that “ the construction of compacts between " states,” was a judicial question, and was so considered by this court, in -^ims v. Irvine, Marlatt v. Silk, and Burton v. Williams.” 12 Pet. 725. " And after a review of Foster, Arredondo, and Percheman, is is said, _ “ That no act of the political department remained to be done ; that ' -it (the treaty of 1819) was an executed treaty, the law of the land, L and a rule for the court. In the numerous cases which have arisen since, the treaty has been taken to be an executed one, a rule of title and property, 349 SUPREME COURT Pollard v. Kibbe. [Jan’y 417 and all questions arising under it to be judicial.” Ibid. 747. The opinion of the chief justice, in this case, is full to the point now considered. “ I do not doubt the power of this court to hear and determine a controversy between states, or between individuals, in relation to the boundaries of the states, when the suit is brought to try a right of property in the soil, or any other right which is properly the subject of judicial cognisance and decision, and which depends on the true boundary line.” Ibid. 752. But I do not rest this point on judicial authority, a higher power confers inviolable sanctity on the right of the inhabitants, and proprietors of land in the disputed territory, which this court will never question. The ordinance of 1787 is declared to be a compact between the original states and the people and states in the said territory, and “ shall for ever remain inviolable, unless by common consent.” 1 Laws U. S. 478. *“The inhabitants of the said territory shall always be entitled to the benefits of,” &,c: ; “ and of judicial proceedings, according to the course of the common law.” Ibid. 479. “No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land and if the public emergency requires any person’s property to be taken, full compensation shall be made for the same. Ibid. The sixth article of the constitution declares, that “ all debts contracted, and all engagements entered into, befofe the adoption of this constitution, shall be as valid against the United States under this constitution, as under the confederation.” Thus, this ordinance, the most solemn of all engagements, has become a part of the constitution, and is valid to protect and for ever secure the rights of property and judicial proceedings to the inhabitants of every territory to which it applies. By the acts of congress of 1798 and 1800, the ordinance of 1787 was applied-to the territory of Mississippi (1 Story 494, 778) ; in 1805, to the territory of Orleans (2 Ibid. 963); embracing the whole of the disputed territory. This ordinance, then, is in itself a panoply broad enough to cover every right in controversy in this case, and impenetrable to any assault which can be made upon them by any subordinate power. When this most solemn and mutual compact, this engagement of the old congress, embodied in the constitution itself, shall be finally held to be dependent on an act of the new congress to give it efficiency, there can be no security for property. It must be remembered, too, that in this compact the new states are placed under concomitant obligations to the United States, to purchasers from them, , *to non-resident proprietors of lands, and the citizens of the United States, which are worthy of consideration. “The legislatures of those districts or new states shall never interfere with the primary disposal of the soil by the United States in congress assembled, nor with any regulations congress may find necessary for securing the title in such soil to the bona fide purchasers. No tax shall be imposed on lands, the property of the United States ; and in no case shall non-resident proprietors be taxed higher than those residents. The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and for ever free as well to the inhabitants of the said territory as to the citizens of the United States, &c., or those of any othei states that may be admitted into the confederacy, without any tax, impost or duty therefor.” 1 Laws U. S. 479-80. Congress cannot expect that this compact will be held sacred by the new states, if the reciprocal engage- 350 1840] OF THE UNITED STATES. 418 Pollard v. Kibbe. ments of the United States cease to be faithfully performed ; and it may be found, that the protection and maintenance or the rights of private property in the disputed territory, may conduce more to the honor and interest of the United States than a contrary course, which, in my opinion, will cause “ injury to their fame and hazard to their power.” Other considerations arise on a review of the state of things preceding the treaty of 1819, and during the military occupation of this territory by the United States, which deeply concern them in their foreign relations. In 18—, the minister of Great Britain, in behalf of her ally, called upon this government to explain the reason why the United States had incorporated the territory west of the Perdido into the Union, after it had been declared in the president’s proclamation that it was still held by the United States as “ a subject of fair, friendly negotiation and adjustment (3 State Papers, For. Aff. 400)—a question of sufficient difficulty to answer, when applied to the proclamation alone. But this difficulty would have become the greater, had the confidential message of thé president, and the consequent and simultaneous secret resolution and acts of 1811 and 1813 then been publicly disclosed ; whereby the law-making, war-making power of the United States, in authorizing the forcible occupation of the territory, by an act of war, had solemnly renewed the pledges of the president, as well in relation to the territorial rights of Spain, as the private property of her grantees. And if, when this fair and friendly negotiation and adjustment was finally closed by the ratification of the treaty in 1821, the United States had announced to Spain, that it did not relate to the territory west of the Perdido ; that it belonged to them by the treaty of 1803, and was held solely in virtue thereof ; that any cession by the treaty of 1819 was disclaimed, and that the United States disavowed any obligation to confirm any grants of land made by Spain after 1800 ; *that they remained null and void under ' the act of 1804, notwithstanding the treaty, till congress should please *-4o give them validity ; that the pledges given by the three departments of the government did not apply to that territory, or its private proprietors ; that the ordinance of 1719, the constitution of the United States, the treaty of 1803, or the constitution of the states to which it was annexed, still left private property dependent on the mere will of congress ; such declarations would have been.met with a new remonstrance, which might have made the United States desirous that its highest judicial tribunal should give to the treaty such a construction as would better comport with the law of nations, the faith of treaties, the injunctions of the constitution, and those principles which had been the standard rules of federal jurisprudence under the confederation, and thence to the present time. Whatever the acquisition of the Floridas may have cost, in dollars or acres, it was, as this court justly remarked, in 3 Pet. 463, richly repaid by its beneficial consequences, “ in addition to vacant lands,” of which the United States already possessed some hundreds of millions of acres. Nothing can tend so much to their interest, to preserve their high position at home and abroad, as for the United States to consider this treaty to have consummated all the great objects which it was intended to effect ; to extinguish the claim of Spain, by accepting the cession of the territory, charged with all the titles ceded or recognised under Spain, and in all respects redeeming to their full measure every previous pledge given by 351 [Jan’y "SUPREME COURT Pollard v. Kibbe. 419 any department of its government: whereby, in the words of the first article, there shall be a firm and inviolable peace, and sincere friendship, between the United States and their citizens and his Catholic Majesty, his successors and subjects, without exception of person and places and in the preamble to the ninth—“ with the object of putting an end to all the differences which have existed between them, and of confirming the good understanding which they wish to be for ever maintained between them,” &c. Such is the effect of a treaty of amity, settlement and limits, by the universally received principles of the law of nations ; such, too, is the effect of this treaty, according to the most solemn and often repeated adjudications of this court; and such would be its effects, if it had been only an ordinary treaty of cession, or compact of boundary, with similar stipulations for the protection of private property. It requires the application of no new principle, or the liberal erpansion of old ones, to take this treaty to so operate, that all land which, by the lawfully recognised authorities of Spain in the province, had been severed from the royal domain, before January 1818, was excepted from the cession to the United States by the second and third articles, and that all grants, &c., remain and stand, under the eighth article, ratified and confirmed, as valid to the same extent as they would have been if the territory had remained under the dominion of Spain. * .. *The ground in controversy was so severed in 1809, by a grant or J concession, which, though it may not amount to a complete legal title, yet the United States “were bound in good faith, by the terms of the treaty,” to confirm such concessions, and has admitted its obligation to confirm such as had “ been fairly made, as was declared in the first case which arose under the treaty, under a concession for land in the disputed territory (12 Wheat. 601); which principle was followed in every subsequent case till 1838’, save one ; and was fully recognised in Kingsley's Case, in the clearest terms: “ It is admitted, that in the construction of this article (the eighth) of the treaty, the United States succeeds to all the equitable obligations which we are to suppose would have, influenced his Catholic Majesty to secure his subjects their property, and which would have been applied by him in the construction of a conditional grant, to make it absolute.” 12 Pet. 484. These cases alone are full and decisive authority to rule the present, and when taken in connection with all previous decisions, on treaties and compacts of every description, between the United States and foreign nations, or with the states of this Union, or between state and state, making cessions of territory, or adjusting contested boundaries, from 1781 to 1838, their result, when brought to bear on the treaty of 1819, and the plaintiff’s title, is decisive. It has been seen, that Foster v. Neilson is a solitary exception from the uniform course of adjudication for fifty-seven years ; that the turning point of that case has been, and is yet admitted to remain and stand overruled (12 Pet. 519) ; and that it can be no authority against the plaintiffs, unless by restoring the overruled construction of the eighth article connected with the ratification, but is conclusive in its favor, when the settled and true construction is infused into that case and the opinion of the court. It has also been seen, that the bearing of the decision in Poole n. Fleeger, on the treaty of 1819, has been entirely misapprehended, by overlooking the obvious and 352 1840] OF THE UNITED STATES. 420 Pollard v. Kibbe. settled distinction between treaties and compacts of cession or boundary, which admit the original right of the nation or state to territory, which had before been possessed by another, without any stipulation for the protection of private property ; and those treaties or compacts which contain no such admission, and do contain such stipulations. That distinction cannot be more strongly marked than will be found on a comparison of the compact of 1820, between Kentucky and Tennessee, and the treaty of 1819 ; and when it is carried into all the cases which have ever been before this court, it will be most manifest, that their decisions have been uniformly influenced and governed by it, except in the one case of Garcia n. Lee, which admits the application of the treaty to the disputed territory. If the plaintiff’s case stood alone on this treaty, and it continues to be held to execute its own stipulations, without the aid of a law, it overthrows .all intervening obstacles to the confirmation of the grant, though the land was within the established boundary of *Louisiana ; even admitting that, up to 1821, it had remained annulled, under the act of 1804, or *-any other subsequent law. By the construction now given to that act, it has no bearing on this case, but independent of this construction, and the conclusive reasons assigned by the court, other considerations deprive it of all effect; for every subsequent act of congress, which protects private property, pro tanto repeals it; so does every other act which places the territory, its inhabitants and proprietors, under the government of the constitution of the United States, or the states which embrace it; and from whatever source the rights of property arise, they are as sacred underthe judicial wing of the Union, or the state, as those of its other citizens. In addition to this protection, the law of nations, without any treaty, stipulation, or constitu- > tional provision, makes private property inviolable, in the cession, relinquishment, conquest, or military occupation of the territory, by some of which means the United States acquired it, and it matters not by which ; the laws, usages and customs of Spain and the province, remained in force as the only rules of title and property, the only test of the validity of grants. In putting themselves in the place of Spain, whether by her consent, or force, the United States took on themselves all the obligations imposed by their position, and the state of the disputed territory, under the treaty of 180S and subsequent laws, and anew recognised tho^e obligations by the president’s proclamation, and the acts of 1811 and 1813 ; the stipulations of the treaty were only an affirmance and renewal of these obligations, in the more solemn form of a national compact most solemnly ratified ; but which bound the United States to nothing to which they were not previously bound, by every guarantee which a government could give to its citizens. For these reasons, I am clearly of opinion, that without the acts of 1824 or 1836, the plaintiffs’ title was as valid as with their aid ; those laws only fulfil previous pledges, and I am unwilling to put myopinion on any grounds which may impair their effect, or which leave it open to the inference, that a right of property under this, or any other grant of land west of the Perdido, requires for its confirmation an act which the United States may do, . or not do at their pleasure ; or that any proprietor, who claims by virtue of -such grant, has not the same constitutional rights to judicial proceedings as •any other citizens of the United States. With these settled convictions, arising from a full and often renewed 14 Pet.—23 353 SUPREME COURT Pollard v. Kibbe. [Jan’y 421 consideration of the course of the executive, legislative and judicial departments of this government; I must adhere to the opinion thus expressed, till its errors have been made to appear, by a more correct exposition of the law of nations, the obligations of treaties, and the decisions of this court. I look in vain to the opinion in Foster n. Neilson, for lighten these subjects, there is a profound silence as to the law of nations, or former adjudications ; the same silence is observed in Garcia v. Lee, which rests exclusively on Foster , v. Neilson ; and Poole v. Fleener. unless it was intended *to invoke the principles of Arredondo and Percheman, in support of the judgment then given, which were the only other cases referred to in the opinion,, so far from supporting it, are in the most direct hostility to it. The opinion in Arredondo was delivered after the appeal by the Spanish minister from the decision in Foster n. Neilson ’ the opinion in Percheman was an answer to the appeal by the secretary of state, from some misapprehensions-of the opinion in Arredondo. This double appeal was most fully met by the opinion in Percheman, in language which vindicated the honor and interest of the United States, and left this court no longer exposed to the imputation of being the only department of the government which presented any obstacle to the execution of the treaty as mutually understood. To these opinions I must adhere, till their principles have been most deliberately reconsidered, and their fallacy exposed ; if the laws of nations,, as there declared, are not correctly stated, there must be some future adjudication by this court, defining them ■with more accuracy, illustrating them with more truth, and more correctly applying their principles to the treaties of 1803 and 1819. Baeboub, Justice. (Dissenting.}—I dissent from the opinion just delivered in this case, and will very briefly state the reasons. It is a writ of error to the supreme court of Alabama, affirming the judgment of the circuit court of Baldwin county of that state, in favor of the defendant in error. The error alleged is, that the circuit court, whose judgment was affirmed by the supreme court, misconstrued the act of congress, entitled “ an act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city,” passed the 26th May 1824, in the charge which it gave to the jury, at the trial, as stated in the bill of exceptions in the record. Before I state the charge, it will be necessary, with a view to understand its bearing, to state the material facts appearing in the bill of exceptions to have been proved, and upon which the charge was founded. Pollard’s heirs, at the trial, to maintain the issue on their part, gave in evidence a concession for the lot in question, from the Spanish authorities, dated 12th of December 1809, but which had been reported against, and rejected by the commissioners of the United States, appointed to investigate and report upon such claims, because of the want of improvement and occupancy. They th(?n gave in evidence a patent, dated 14th of March 1837, issued by virtue of an act of congress, passed the 2d July 1836, entitled an act for the relief of William Pollard’s heirs ; the patent embraced the lot in question. The defendant then gave in evidence, a Spanish grant, dated the 9th of June 1802, to John Forbes & Company, for a lot of ground, eighty feet front, on Royal street, with a depth of three hundred and four feet to the east, and 354 1840] OF THE UNITED STATES. *423 Pollard v. Kibb^. bounded on the south by Government *street; which grant was recognised and confirmed by an act of congress. It was proved, that the lot in question is east of Water street and im-mediately in front of the lot conveyed by the above-mentioned grant,, to John Forbes & Company, and only separated from it by Water street, fit was proved, that previously to the year 1819, and until filled up, as hereafter stated, the lot in question was, at ordinary high tide, covered with water, and mainly so, at all stations of the water ; that the ordinary high water flowed from the east to about the middle of what is now Water street, between the lot in question, and that embraced in the grant to John Forbes & Company. John Forbes & Company had been in possession of the lot contained in their grant, since the year 1802 ; and it was known, under the Spanish government, as a water lot; no lots at that time existing between it and the water. In the year 1823, no one being in possession, and the lot in question being under water, a certain Curtis Lewis, without any title or claim, took possession of it, and filled it up, east of Water street, filling up north of Government street, and at the corner of same and Water street; Lewis remained a few months in possession, when he was ousted by one of the firm of John Forbes & Company, who erected a smith’s shop thereon, and they were then turned out by said Lewis, by legal process, who then retained possession until he conveyed it. When Lewis took possession, Water street,, at that place, could be passed by carts, and was common. The defendant connected himself, in title, to the lot in question, by means of conveyances^ with John Forbes & Company, with Curtis Lewis, and the mayor and aidermen of Mobile. It was admitted, that the lot in question lies between Church street and North Boundary street. On this state of facts, the court charged the jury, that if the lot conveyed as above to John Forbes & Company, by the deed aforesaid, was known as a water lot, under the Spanish government ; and if the lot in question had been improved, at and previous to the 26th of May 1824, and was east of Water street, and immediately in front of the lot so conveyed to John Forbes & Company ; then the lot in question passed, by the act of congress of 26th May 1824, to those at that time owing and occupying, so as above conveyed to John Forbes & Company ; and that it was immate-rial, who made the improvements on the lot on the east side of Water street, being the one in question ; that by the aforesaid act of congress, the proprietor of the lot on the west side of Water street, known as above, that is, as a water lot, under the Spanish government, was entitled to the lot on the east side of it. Whether this charge was correct or not, depends upon the construction of the act of 1824 ; and I now proceed to show, that it is, as I think, precisely in accordance with the true construction of that act; nay, that it is almost the very echo of it. The second section provides-, that all the right and claim of the United States to so *many of the lots of ground east of Water street, and between Church street t ^24 and North Boundary street, now known as water lots, as are situated between the channel of the river, and the front of the lots known under the panish government as water lots, in the said city of Mobile, whereon improvements have been made, be and the same are hereby7 vested in the sev* 355 SUPREME COURT Pollard v. Kibbe. [Jan’y 424 eral proprietors and occupants of each of the lots, heretofore fronting on the river Mobile, except,” &c. I will, at present, pause here, and examine the meaning of this section, independently of the exception ; I will afterwards examine the operation of that. Now, the questions are, who were the grantees, and what the things granted by this section ? And first, who were the grantees ? They were the proprietors and occupants of the lots, heretofore fronting on the river Mobile. It appears from the record, that the lots on the western side of Water street, were the lots heretofore fronting on the river Mobile, and that these were known under the Spanish government as water lots. There were no lots, at that time, existing between them and the water. The grantees, then, contemplated by the act of congress, were those persons who owned lots known as water lots under the Spanish government; because those were they which heretofore fronted on the river Mobile ; and the record, as I have said, fixes their locality on the western side of Water street. Next, let us inquire, what were the things granted? These were the lots east of Water street, and between Church and North Boundary streets, now known as water lots, and situated between the channel of the river and the front of the lots, known under the Spanish government as water lots, whereon improvements have been made. It appears, that the lot in question answers this description, as to locality, in every particular ; that improvements had been made upon it, and that it was in front of the lot owned by John Forbes & Company, which lay on the western side of Water street, and which originally fronted on Mobile river, reaching to it ; and was known under the Spanish government as a water lot. If we now apply the charge of the court to this state of facts, we shall see, that it accords with the language of the law, with extraordinary precision. The jury were told, hypothetically, that if the lot conveyed to John Forbes & Company was known as a water lot, under the Spanish government, which hypothesis is proved to be a fact, by the record ; and if the lot in question had been improved, previously to the 25th May 1824, and this fact also clearly appears from the record ; and was east of Water street, and immediately in front of the lot of John Forbes & Company, and this fact, too, as clearly appears from the record ; then, that the lot in question passed by the act of congress of May 1824, to those at that time owning and occupying the lot conveyed to John Forbes & Company. I repeat, that this charge so fully accords with the law, that it may almost be said to be an echo of its language. * I have said, that *all the facts which were put hypothetically to the -* jury, were proved by the record ; but it was not at all necessary that this should have been done. When we are examining the correctness of a charge given to a jury, that if a given state of facts existed, a particular legal result would follow, we must assume the existence of the facts, because the charge only instructs the jury that such is the law, if the facts exist, of which they are to judge; and if the facts do not exist, then the charge, by its very terms, does not apply. But the court told the jury, that' it was immaterial, by whom the improvements were made. I cannot doubt the correctness of this part o the charge : in this, too, the court echoed the very language of the act o congress, “ whereon improvements have been made.” Now, as the law itself does not say by whom the improvements have been made, but only 356 1840] 425 OF THE UNITED STATES. Pollard v. Kibbe. that they must have been made ; if the court had said, that they must have been made by any particular person, they would have put another condition into the law, and have required what it did not require. It is said, however, that the law could not have contemplated giving to one man the benefit of improvements made by another. If such could even be supposed to be the proper construction, the facts in the record would meet it ; because it appears, that Forbes & Company did make an improvement on the lot in question, as also did Curtis Lewis, under whom the defendant claims. But the law, to my mind, clearly does not contemplate giving the new water lot to a person, because he made improvements on it ; if it had so intended, it would have been so said ; but its purpose and its plain language is, that where the new water lot is improved, it shall pass to the owner of the old water lot. The policy of this is obvious. The old water lot originally went to the water ; the new water lot did not then exist, having since come into existence ; the purpose of the statute was to place the owner of the old water lot in his original position, that of still going to the water, which would be effected by giving him the new water lot, without inquiring by whom it was improved. But it is supposed, that the claim of Pollard’s heirs comes within the benefit of the exception in this section, which, so far as it respects this case, is in these words, “ except where the Spanish government has made a new grant or order of survey for the same, during the time at which they bad the power to grant the same ; in which case, the right and claim of the United States shall be and is hereby vested in the person to whom such grant or order of survey was made, or in his legal representatives.” It will be observed, that this exception only extends to such grants or orders of survey, as were made by the Spanish government when they had power to make the same. The grant from the Spanish government to Pollard, which is supposed to be within the benefit of this exception, bears date in 1809 ; if at that time the Spanish government had not power to make the grant, then the exception, by its very terms, does not embrace the case. *Now, this court solemnly decided in Foster n. Neilson, 2 Pet. 254, and again in Garcia v. Lee, 12 Ibid. 511, that in 1809, the date of Pollard’s grant, the Spanish government had not the power to make grants m the territory of which the lot in question was a part ; and that all such as w ere made after the treaty of St. Ildefonso were void. Consistently with these decisions, I think, that at the date of Pollard’s grant, the Spanish government had not the power to make it ; and it follows, that it is not within the benefit of the exception. Some reliance seemed to be placed upon the proviso to this section, which is in these words : “ provided, that nothing in this act contained, shall be construed to affect the claim or claims, if any such there be, of any individual or individuals, or of any body politic or corporate,” Now, it is too c ear for argument, that this proviso cannot aid the claim of Pollard’s heirs, upon the assumption that they claim under the exception ; because the o«. Proviso is to guard any possible claim of others against being a ected by the grant of congress ; either in the enacting part of the cession, or m the exception. I have not thought it necessary to bring the first sec-Af01] - any other person, he must *have invented it. That prior knowl- J edge was invention ; and that was the very thing to be proved. Two objections were taken to the character of the proof : 1st. That it was derived from the plaintiff himself : 2d. That the alleged improvement was not then brought into practical use by him. • Answer 1st. It was an invention ; else not patentable : in other words, it must spring from himself. An exhibition of it must necessarily, in some shape or other, be his act. Whatever might be said or done by others, could not be available to him. The exhibition might be effected by deeds, signs or words. It matters not in what particular manner the effect is produced, but the discovery must make manifest its paternity ; and it can do so only through the medium of its proper parent. This may be done by his works —a machine constructed. Let it be produced ; original, practical, perfect in all its parts. Nothing is gained by the author, unless something more than all this appears, viz., authorship. However eloquent the machiije may be as to its uses, it cannot speak for itself, as to its author. The nearest it can come to speech would be an inscription or label on its front : “ J. S. fecit” for example. That would, at best, be a written declaration. What difference would it make, that the writing, or stamping, or printing, should be in a book ? That description of evidence in a sister department of the law, is conclusive of important rights. In maintaining copyrights, the writing of the party is the essence of the discovery, and the sole proof o invention or originality. If, instead of writing with hris own hand, the same author dictates to another person, cannot the amanuensis prove the dictation, and hence the authorship ? A blind author has often given to the world t e 382 1840] OF THE UNITED STATES. 455 Philadelphia and Trenton Railroad Co. v. Stimpson. result of his genius, through the pen of another. On a question of authorship, surely the testimony of the scribe would be received as competent. Another species of proof of invention remains, namely, oral explanation alone. Why may it not be received ? It is the very thing itself. To speak it, was to create it, if it did not already exist in thought,; and if it did, it must prove it. The proof was givfen, to counteract the allegation of earlier discovery. It produces the effect, by showing that the earlier discoverers, as they are regarded, received from the plaintiff the information which enabled them to put the invention in use, and then attempt to deny the right of showing how the information was communicated and obtained. One of the very pieces of testimony objected to, consisted of a conversation with the person who claimed to be an inventor in preference to the plaintiff. The declarations did not stand alone ; they were accompanied by two drawings and a model. The date of the existence of these monuments is clearly proved. The conversations became but a part of the res gestee. There are many occasions on which one’s own sayings and doings are good evidence ; in some instances, the best, and in others, the only *evidence.. The present is an anomaly, unless it concurs. It does not follow, that the L expressions of an individual are the illegal creation of testimony for himself. Such are, 1. Various kinds of declarations ante litem motam ; 2. When the sayings are the doings, as in cases of notice ; 3. Where the expressions of an individual are the test of a given state of things, as intellect ; 4. Proof of a contract, as marriage, by words de praesenti ; 5. Almost any other discovery or invention, not connected with the useful arts. A reward is offered for lost property ; the finder informs of the finding of it ; the declarations can be proved. Answer 2d. As to the objection that the explanations were not reduced to practice. Here, too, the objection loses sight of the fact, that our evidence was not original, but merely designed to meet a collateral issue as to the period of invention, and not exactly as to invention itself. On any ground, however, the question of invention does not depend upon whether the thing has been reduced to practice, but whether it can be. Not whether it is actually practised, but practicable. Drawings, descriptions and models are sent to the patent-office. These are miniature likenesses, not the thing itself. Any other course would, in many instances, be quite impracticable. A ship, a house, a town, are often the recipients of an improvement which cannot be practically exhibited, except in connection with the vast object- to which it is applied. Sometimes, the reducing to practice might be destructive of life or property. A guillotine need not be rehearsed, in order to prove its power. Besides, it might destroy the very intention, to insist on practical exercise. It might be regarded as giving the invention to the public, and then the patent right is gone for ever. 5. Thomas P. Jones was called by the defendants, after all the testimony’ m chief, on both sides, and the plaintiff’s rebutting testimony also, had been given, and his witnesses dismissed ; and much time had been occupied in giving rebutting testimony for the defendants. The declared object was, to prove that the invention described in the plaintiff’s patent of 1835, was different from the invention described by him in his patent of 1831 : in other words, that the patent which purported to be a mere correction of form, was m substance a totally different thing. We are struck at once with an incon- 383 456 SUPREME COURT [Jan’y Philadelphia and Trenton Railroad Co. v. Stimpson. * sistency between this point, and the whole tenor of the defendants’ case. The notice which they gave, the aim of their evidence, their great design, is to show that the thing relied on by the plaintiff, which was patented by him in 1835, was well known and used in 1831 ; known to everybody, publicly, notoriously. Yet we are now told, that it was not known even to the plaintiff himself ; but that he found it necessary, four years afterwards, to desert the alleged invention of 1831, and surreptitiously to foist in a different thing, which then became known to him for the first time. Unless this be the true meaning of the point, it has none. The evidence offered was original and direct. It contradicted nothing already asserted in evidence. It was directed * ‘ to a point in *no way collateral. It went immediately to the essential J merits of the case. It was of great importance, undoubtedly. Nothing could be more conclusive against the plaintiff. Not only would' it be destructive of his claim to originality ; but it would prove a most audacious fraud, abortively attempted, and calculated, when detected, to deprive him of all standing in or out of court, and to render his defeat as disgraceful as it was inevitable. Notice of all this ought to have been given, perhaps. It is not urged, however, as an argument, that none was received ; although it might have been calculated to take the plaintiff by surprise. But it was a fact, above all others, requiring, and in its nature admitting of, countervailing proof. Not a clerk in the office, probably, could have failed to give material testimony in reply. These persons were at a distance; and wre should have been left to the question of probability, whether a man, in any extremity of impudent fraud, would have ventured to place two totally different patents side by side in the office, asserting that they were in substance identical. The evidence offered was not the best the nature of the case admitted of. Contradiction was to be proved between two written instruments, with, perhaps, a model accompanying each of them. Copies would be the proper sources of illustration. Were copies not accessible? We do not know. No inquiry was made. A thousand copies may have been made, before the patent-office was destroyed. Plaintiff himself, no doubt, had such copies in his possession. No notice was given to him to produce them, before this violent attempt was made to introduce secondary evidence. To get rid of all this, the argument was, that the difference was only to be inferred between the patents, from a difference between the conversation and one of them. But that would rebut nothing. No person denied that plaintiff’s conversations with the witnesses he produced, were as they were sworn to be. Other conversations with other persons might have shown descriptions of other inventions ; but they could not possibly show that the first conversations did not take place. The judge gave two reasons for rejecting the testimony. One wras, that it was offered at too late a stage of the cause. That was ruled in his sound discretion ; from the exercise of that discretion there is no appeal. No attempt was made to take one. On both of his grounds he was .right. But one was sufficient to cover the whole question, and it is inaccessible to review here. Story, Justice, delivered the opinion of the court.—This is a writ of error to the judgment of the circuit court for the eastern district of Pensylvania, rendered in an action brought by Stimpson, the defendant in error, agains 384 1840] OF THE UNITED STATES. 45? Philadelphia and Trenton Railroad Co. v. Stimpson. the plaintiffs in error, for a violation of a patent-right granted to him for a new and useful improvement in the mode of turning short curves on railroads. A patent was originally granted to Stimpson, for the same invention, on the 23d day of August 1831; and the renewed patent, upon which *thepres- ent suit is brought, was granted on the 26th of September 1835, upon •-the former letters-patent “ being cancelled on account of a defective specification,” and the renewed patent was for the term of fourteen years from the date of the original patent. With the exception of the recital of the fact that the former letters-patent wTere cancelled “ on account of a defective specification,” and “ the statement of the prior date from which the renewed patent was to begin to run, the renewed patent is in the precise form in which original patents are granted.” At the trial, upon the general issue, a bill of exceptions was taken to ■certain rulings of the court upon points of evidence, to the consideration of which we shall at once proceed, without any further preface. The first •exception taken is to the admission of the renewed patent as evidence in the cause, to the jury. The patent act of 1832, ch. 162, § 3, under which this patent was obtained, provides, that whenever any patent shall be inoperative or invalid, by reason that any of the terms or conditions prescribed by the prior acts of congress, have not, by inadvertence, accident or mistake, and without any fraudulent or deceptive intention, been complied with on the part of the inventor, it shall be lawful for the secretary of state, upon the surrender to him of such patent, to cause a new patent to be granted to the inventor, for the same invention, for the residue of the period then unexpired for which the original patent was granted, upon his compliance with the terms and conditions prescribed by the third section of the act of the 21st of February 1793, ch. 55. Now, the objection is, that the present patent does not contain any recitals that the pre-requisites thus stated in the act have been complied with, viz., that the error in the former patent has arisen by inadvertency, accident or mistake, and without any fraudulent or deceptive intention ; and that without such recitals, as it is the case of a special authority, the patent is a mere nullity, and inoperative. We are of opinion, that the objection cannot, in point of law, be maintained. The patent was issued under the great seal of the United States, and is signed by the president, and countersigned by the secretary of state. It is a presumption of law, that all public officers, and especially such high functionaries, perform their proper official duties, until the contrary is proved. And where, as in the present case, an act is to be done, or patent granted, upon evidence and proofs to be laid before a public officer, upon which he is to decide, the fact that he has done the act or granted the patent, is primd jacie. evidence that the proofs have been regularly made, and were satisfactory. No other tribunal is at liberty to re examine or controvert the sufficiency of such proofs, if laid before him, when the law has made such officer the proper judge of their sufficiency and competency. It is not, then, necessary for the patent to contain any recitals that the pre-requisites to the grant of it have been duly complied with, for the law makes the presumption ; and if, indeed, it were otherwise, the recitals would not help the case without the *auxiliary proof that these pre-requisites had been, de ^acto, complied with. This has been the uniform construction, so far L as we know, in all our courts of justice, upon matters of this sort. Patents 14 Pet.—25 385 459 SUPREME COURT [Jan’y Philadelphia and Trenton Railroad Co. v. Stimpson. for lands, equally with patents for inventions, have been deemed primdfacie evidence that they were regularly granted, whenever they have been produced under the great seal of the government ; without any recitals or proofs that the pre-requisites of the acts under which they have been issued have been duly observed. In cases of patents, the courts of the United States have gone one step farther, and as the patentee is required to make oath that he is the true inventor, before he can obtain a patent, the patent has been deemed primd facie evidence that he has made the invention. This objection, then, is overruled ; and there was no error in the circuit court in the admission of the patent. The next exception is to the refusal of the court to allow a witness, Josiah White, to give a description of an invention which he had seen on the Mauch Chunk railroad, in 1827, which had a groove on one side, and ran on the other on a flange for crossing, for the purpose of showing that the supposed invention of the plaintiff was known and in use by others, before the date of his patent. By the patent act of 1836 (which was applicable to the present point), it is provided, in the 15th section, that whenever the defendant relies in his defence on the fact of a previous invention, knowledge or use of the thing patented, he shall state in his notice of special matter to be used in his defence, the names and places of residence of those, whom he intend» to prove to have possessed a prior knowledge of the thing, and where the same had been used. The object of this most salutary provision is, to prevent patentees being surprised, at the trial of the cause, by evidence of a nature which they could not be presumed to know, or be prepared to meet, and thereby to subject them either to most expensive delays, or to a loss of their cause. It is incumbent on those who seek to show that the examination of a witness has been improperly rejected, to establish their right to have the evidence admitted ; for the court will be presumed to have acted correctly, until the contrary is established. In the present ease, there is no proof on the record, that notice had been given according to the requirements of the statute, that White was to be a witness, for the purpose above stated. Unless such notice was given, it is plain, that the examination could not be rightfully had. The onus probandi is on the defendants to show it, and unless they produce the notice, the objection must fail. In point of fact, it was admitted by counsel, at the argument, that no such notice was given. In either view, then, from the admission, or from the defect of the preliminary proof of notice in the record, the exception is not maintainable. The next exception is to the refusal of the court to allow certain questions to be put by the defendants to John H. B. Latrobe, a witness introduced by the defendants to maintain the issue on their part. Latrobe, on * , his examination, stated, “ I know Mr. Stimpson *by sight and char- 60-1 acter. He granted to the Baltimore and Ohio Railroad Company the privilege of using the curved ways on their railroad, and all lateral roads connected therewith. I fix the date of the contract in the early pait of October 1834, because I have then a receipt of Mr. Stimpson’s counsel, foi $2500. Mr. Stimpson laid his claim against the Baltimore Company for an infringement of his patent, in 1832. It was referred to me by the company, and I advised them.” The counsel for the defendants then offered to prove by the same witness, the declarations of the plaintiff and his agent, to t e witness, that the settlement made with the Baltimore and Ohio Railroa 386 1840] OF THE UNITED STATES. 460 Philadelphia and Trenton Kailroad Co. v. Stimpson. Company with the plaintiff, was not an admission by the said company of the plaintiff’s right in the alleged invention, but a mere compromise of a pending suit, disconnected with a grant in writing, made by the plaintiff to the said company ; and to that end, proposed to put the following questions, respectively, and in order, to the witness : “ 1. Do you know who was the agent of attorney of James Stimpson, in negotiating the arrangement and settlement between him and the company referred to ? Who was he ? 2. State, if any conversations occurred between James Stimpson, or his agent or counsel, at any time, during the negotiations, regarding the rights claimed by him in the patent for curved ways, without reference to the existence of a written contract, or its contents ? 3. What were they ?” The court refused to allow these questions to be put, for the purpose aforesaid. Now (as has been already intimated), it is incumbent upon those who insist upon the right to put particular question to a witness, to establish that right beyond any reasonable doubt, for the very purpose stated by them ; and they are not afterwards at liberty to desert that purpose, and to show the pertinency or relevancy of the evidence for any other purpose, not then suggested to the court. It was not pretended, at the argument, that the evidence so offered was good evidence in chief, in behalf of the defendants, upon the issue in the cause. It was res inter alios acta, and had no tendency to disprove the defendant’s title to the invention, or to support any title set up by the defendants ; for no privity was shown between the defendants and the Baltimore company. As evidence in chief, therefore, it was irrelevant and inadmissible. The sole purpose for which it was offered, so far as it was then declared to the court, was to show, that the compromise with the Baltimore company was not founded on any admission of the plaintiff’s right in the invention. Be it so ; it was then inconsequential; for it certainly had no just tendency to disprove his right. If the compromise had been offered on the part of the plaintiff, for the purpose of establishing his right to the invention, there is no pretence to say, that it would have been admissible against the defendants. In the converse case, it is equally inadmissible for the defendants. But it is now said, that the evidence was in fact offered for the purpose of rebutting or explaining certain statements made by one *Ross Winans, a witness called by the defendants, in his answers upon his L cross examination by the plaintiff’s counsel. Now, this purpose is not necessarily, or even naturally, suggested by the purpose avowed in the record. Upon his cross-examination, Winans stated : “ I understood there were arrangements made with the Baltimore company. I heard the company paid $5000.” Now, certainly these statements, if objected to by the defendants, would have been inadmissible upon two distinct grounds. 1. First, as mere hearsay ; 2. And secondly, upon the broader principle, now well established, although sometimes lost sight of in our loose practice at trials, that a party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination. If he wishes to examine him to other matters, he must do so by making the witness his own, and calling him as such, in the subsequent progress of the cause. The question, then, is presented, whether a party can, by his own omission to take an objection to the admission of improper evidence brought out on a cross-examination, found a right to introduce testimony in chief to 387 461 SUPREME COURT [Jan’y Philadelphia and Ttenton Railroad Co. v. Stimpson. rebut it or explain it. If, upon the cross-examination, Winans’s answer had been such as was unfavorable to the plaintiff, upon the collateral matters thus asked, which were not founded in the issue, he would have been bound by it, and not permitted to introduce evidence to contradict it. There is great difficulty in saying, that the defendants ought to be in a more favored predicament, and to acquire rights founded upon the like evidence to which they did not choose to make any objection, although otherwise it could not have been in the cause. But waiving this consideration, the grounds on which we think the refusal of the court was right, are ; first, that it was not distinctly propounded to the court, that the evidence was offered to rebut or explain Winans’s testimony ; and secondly, that in the form in which it was put, it proposed to separate the written contract of compromise from the conversations and negotiations which led to it, and to introduce the latter without the former, although it might turn out that the wTritten paper might most materially affect or control the presumptions deducible from those conversions, and negotiations. We think, that upon the settled principles of law, parol evidence bearing upon written contracts and papers, ought not to be admitted, without the production of such written contracts or papers, so as to enable both the court and the jury to see, whether or not the admission of the parol evidence in any manner will trench upon the rule, that parol evidence is not admissible to vary or contradict written contracts or papers. The next exception is to the admission of the evidence of William A. Stimpson, Richard Caton and George Neilson, as to certain declarations, and statements, and conversations of the plaintiff, as to his invention, prior to the date of his original patent; in order to rebut the evidence of the defendants, as to the invention or use by other persons of the same con- , trivance, before that date. The objection *is, that, upon general J principles, the declarations and conversations of a plaintiff, are not admissible evidence in favor of his own rights. As a general rule, this is undoubtedly true. It is, however, but a general rule, and admits and requires various exceptions. There are many cases in which a party may show his declarations comport with acts in his own favor, as a part of the res gestee. There are other cases, again, in which his material declarations have been admitted. Thus, for example, in the case of an action for an assault and battery and wounding, it has been held, that the de.clarations of the plaintiff, as to his internal pains, aches, injuries and symptoms, to the physician called to prescribe for him, are admissible for the purpose of showing the nature and extent of the injuries done to him. See I Phillips on Evid. ch. 12, § 1, p. 200-2 (8th ed., 1838). In many cases of inventions, it is hardly possible, in any other manner, to ascertain the precise time and exact origin of the particular invention. The invention itself is an intellectual process or operation ; and like all other expressions of thought, can in many cases scarcely be made known, except by speech. The invention may be consummated and perfect, and may be susceptible of complete description in words, a month, or even a year before it can embodied in any visible form, machine or composition of matter. It might take a yeai to construct a steamboat, after the inventor had completely mastered all t e details of his invention, and had fully explained them to all the vaiious artisans whom he might employ to construct the different parts of t e 388 1840] OF THE UNITED STATES. 462 Philadelphia and Trenton Railroad Co. v. Stimpson. machinery. And yet from those very details and explanations, another ingenious mechanic might be able to construct the whole apparatus, and assume to himself the priority of the invention. The conversations and declarations of a patentee, merely affirming that, at some former period, he invented that particular machine, might well be objected to. But his conversations and declarations, stating that he had made an invention, and describing its details and explaining its operations, are properly to be deemed an assertion of his right, at that time, as an inventor, to the extent of the facts and details which he then makes known ; although not of their existence at an antecedent time. In short, such conversations and declarations, coupled with a description of the nature and objects of the invention, are to be deemed apart of the res gestae ; and legitimate evidence that the invention was then known to and claimed by him, and thus its origin may be fixed, at least, as early as that period. This view of the subject covers all the parts of the testimony of the witnesses objected to in the circuit court ; and we are of opinion, that the court were right in admitting the evidence. The next and last exception is, to the rejection of the evidence of Dr. Jones, who was offered to prove that there were material differences between the. patent of 1831, and the renewed patent of 1835, and to explain these differences. No doubt can be entertained, that the testimony thus offered was, or might be, most material to *the merits of the defence. And o the question is not as to the competency or relevancy of the evidence, L but as to the propriety of its being admitted at the time when it wras offered. It appears, that the testimony was not offered by the defendants, or stated by them as a matter of defence, in the stage of the cause when it is usually introduced according to the practice of the court. It was offered, after the defendants’ counsel had stated in open court, that they had closed their evidence, and after the plaintiff, in consequence of that declaration, had discharged his own witnesses. The question, then, is, whether it wras, at that time, admissible on the part of the defendants, as a matter of right ; or whether its admission was a matter resting in the sound discretion of the court. If the latter, then it is manifest, that the rejection of it cannot be assigned ar, error. The mode of conducting trials, the order of introducing evidence, and the times when it is to be introduced, are, properly, matters belonging to the practice of the circuit courts, with which this court ought not to interfere ; unless it shall choose to prescribe some fixed, general rules on the subject, under the authority of the act of congress. Probably, the practice in no two states of the Union is exactly the same ; and therefore, in each state, the circuit courts must necessarily be vested with a large discretion, m the regulation of their practice. If every party had a right to introduce evidence, at any time, at his own election, without reference to the stage of the trial in which it is offered, it is obvious, that the proceedings of the court would often be greatly embarrassed, the purposes of justice be obstructed, and the parties themselves be surprised by evidence destructive of their rights, which they could not have foreseen, or in any manner have guarded against. It seems to us, therefore, that all courts ought to be, as indeed they generally are, invested with a large discretion on this subject, o prevent the most mischievous consequences in the administration of justice to suitors ; and we think that the circuit courts possess this discretion 389 SUPREME COURT United States v. Morris. [Jan’y 463 in as ample a manner as other judicial tribunals. We do not feel at liberty, therefore, to interfere with the exercise of this discretion ; and, indeed, if we were called upon to say, upon the present record, whether this discretion was, in fact, misapplied or not, we should be prepared to say, that we see no reason to doubt that it was, under all the circumstances, wisely and properly exercised. It is sufficient for us, however, that it was a matter of discretion and practice, in respect to which we possess no authority to revise the decision of the circuit court. Upon the whole, we are of opinion, that the judgment of the circuit court ought to be affirmed, with costs. Judgment affirmed. *464] *United States v. Isaac Morris. Slave-trade. Indictment under the second and third sections of the act of congress, entitled “ an act to prohibit the carrying on the slave-trade, from the United States to any foreign place or country,” passed 10th May 1800. The schooner Butterfly, carrying the flag of the United States, and documented as a vessel of' the United States, and having the usual equipments of vessels engaged in the slave-trade, sailed from Havana, towards the coast of Africa, on the 27th July 1839 ; she was captured by a British brig of war, and sent into Sierra Leone, on suspicion of being Spanish property ; at the time of the capture, Isaac Morris was in command of the vessel, and was described in the ship’s- papers, and described himself, as a citizen of the United States; the vessel was sent, by the British authorities at Sierra Leone, to be dealt with by the authorities of the United States : Held, that to constitute the offence denounced in the second section of the act of 10th May 1800, it was not necessary that there should have been an actual transportation or carrying of slaves in the vessel of the United States, in which the party indicted served. 2. The voluntary service of an American citizen on board a vessel of the United States, in a voyage commenced with intent that the vessel should be employed in the slave-trade, from one foreign place to another, is an offence against the second section of the law, although no slaves had been transported in such vessel, or received on board of her. 3. To constitute the offence under the third section of the act, it was not necessary that there should be an actual transportation of slaves in a foreign vessel, on board of which the party indicted served, 4. The voluntary service of an American citizen on board a foreign vessel, in a voyage commenced with intent that the vessel should be employed and made use of in the transportation of slaves from one foreign country to another, is, in itself, and where no slaves have been transported in such vessel, or received on board of her, an offence under the third section of the act. In expounding a penal statute, the court, certainly, will not extend it beyond the plain meaning of the words ; for it has been long and well settled, that such statutes must be construed strictly; yet the evident intention of the legislature ought not to be defeated by a forced and over-strict construction.1 Certificate of Division from the Circuit Court for the Southern District of New York. The defendant, Isaac Morris, was indicted under the second and third sections of the act entitled “ an act in addition to an act entitled ‘ an act to prohibit the carrying on the slave-trade from the United States to any foreign place or country,’ ” approved on the 10th of May 1800. The first count of the indictment charged that the defendant did, on the high seas, from the 15th day of June, until the 26th day of August, in the 1 American Fur Co. v. United States, 2 Pet. United States v. Winn, 3 Sumn. 209; The 358 ; United States v. Hartwell, 6 Wall. 385; Enterprise, 1 Paine 32 390 1840] OF THE UNITED STATES. 464 United States v. Morris. year 1839, voluntarily serve on board of the schooner Butterfly, a vessel of ’ the United States ; employed and made use of in the transportation of slaves from some foreign country or place to some other foreign country i or place ; the said defendant being a citizen of the United States. The I second count charged, that the defendant did, on the high seas, from . the 15th day of June to the 26th day of August, voluntarily serve on board , of the schooner Butterfly, being a foreign vessel employed in the slave-• trade ; the defendant being a citizen of the United States. *It was proved, on the trial, on the part of the prosecution, that the schooner Butterfly, carrying the flag of the United States, and •-documented as a vessel of the United States (her register being dated the 24th day of May 1839, and issued by the collector of New Orleans, to Nathan Farnsworth, a citizen of the United States, as owner), was boarded and examined, on the 26th day of August 1839, on the high seas, in latitude 5° 25' north, longitude 30° east, near Cape St. Paul’s, on the coast of Africa, by the British brig of war Dolphin, on suspicion of being a Spanish vessel engaged in the slave-trade, in contravention of the treaty between Great Britain and Spain for the suppression of the slave-trade. That on such ■examination, the vessel was found to be on her voyage from Havana, in the island of Cuba, which port she had left on the 27th day of July 1839, bound to St. Thomas, in the island of Principe, near the coast of Africa ; that the vessel had on board twenty-four large leagers capable of containing each from 250 to 300 gallons of water ; eighteen of these were in shocks, that is, the staves were in bundle, not fitted ; four of them contained water, and two contained bread ; there was a quantity of plank stowed away in the hold, similar to the planks used in framing slave-decks, but this plank could not have been fitted as a slave-deck until the vessel had discharged her cargo ; and that such leagers and slave-decks were commonly found to be a part of the equipments and fittings of vessels engaged in the slave-trade on the •coast of Africa ; that she had on board a full cargo, consisting of various commodities, adapted either to the traffic in negroes, or to any lawful trade carried on by trading vessels upon the coast of Africa ; that the prisoner was in command of the vessel; that he was described in the ship’s papers, and represented himself, as a citizen of the United States ; that the rest of the ship’s company were represented in the crew-list as Spaniards or Portuguese, who had been shipped at Havana ; that there were also on board fourteen Spaniards who had been received at Havana as passengers ; that the cargo had been shipped at the same place, and according to the invoice 1 and bill of lading, was to have been delivered at St. Thomas, in the island of Principe aforesaid, and appeared, by the documents, to be owned by । persons residing at Havana ; that two log-books, one in English and ; the other in Spanish, were found on board ; that various documents in the “Spanish language were also found on board ; that under these circumstances, i the vessel was captured by the Dolphin, suspecting the same to be Spanish property, and sent for adjudication to Sierra Leone, to be proceeded against m the mixed commission court at that place, which court declined taking cognisance of the case, on account of the vessel being documented as an merican vessel; that she was then sent to the port of New York, to be ealt with by the authorities of the United States as they might think proper. 391 465 SUPREME COURT (Jan’y’ United States v. Morris. No slaves were found on board the vessel at the time of her capture ; and it was testified by the witnesses for the prosecution, that from the cargo- ■ 1 and situation in which the vessel was found, no *slaves could have J been carried or transported in her at any time during the voyage on which she was then engaged ; that it would have been necessary to have-discharged the cargo, before slaves could have been taken on board ; that the vessel was short of water, having only about eleven gallons on board, when she was captured ; and that Cape St. Paul’s was a common watering place on that coast, being about five hundred miles distant from the island of Principe. Upon the foregoing state of facts, the judges were divided in opinion upon the four following questions ; which were presented on the facts aforesaid for their decision : 1. Whether it is necessary, in order to constitute the offence denounced * in the second section of the act of the 10th of May 1800, above referred to, that there should be an actual transportation or carrying of slaves, in the vessel of the United States on board of which the party indicted is alleged to have served. 2. Whether it is necessary, in order to constitute the offence denounced in the third section of the act of the 10th of May 1800, above referred to, that there should be an actual transportation or carrying of slaves, in a for- . eign vessel, on board of which the party indicted is alleged to have served. 3. Whether the voluntary service of an American citizen, on board a vessel of the United States, on a voyage commenced with the intent that the vessel should be employed and made use of in the transporting or carrying ' of slaves from one foreign country or place to another, is, in itself, and -where no slaves had been transported in such vessel, or received on board her, an offence under the said second section. 4. Whether the voluntary service of an American citizen, on board a foreign vessel, on a voyage commenced with the intent that the vessel should be employed and made use of in the transportation and carrying of slaves, from one foreign country or place to another, is, in itself, and where no slaves had been transported in such vessel, or received on board her, an offence under the said third section. Which points were stated under the direction of the court, at the request of the counsel for the parties in the cause, and ordered to be certified into the supreme court of the United States, pursuant to the act in such cases made and provided. The case was argued by Gilpin, Attorney-General of the United States, for the plaintiffs ; and by Nelson, for the defendant. Mr. Philip Hamilton submitted a written argument for the defendant. Gilpin, for the United States.—The questions that present themselves in this case are these : 1. Whether the voluntary service on board of an American vessel, on a voyage commenced with the intent that she shall be employed in the transportation and carrying of slaves, is a violation of the second section of the act of 10th May 1800 (2 U. S. Stat. 70), without any * _ slaves being actually transported or carried ? *2. Whether the vo - J untary service on board of a foreign vessel, on a voyage commence with the intent that she shall be employed in the slave-trade, is a violation 392 467 J 840] OF THE UNITED STATES. United States v. Morris. of the third section of the same act, without any slaves being actually transported or carried ? In the construction of a statute, the first inquiry is, what was the intention of the legislature ? The second, whether that intention is so clearly expressed as to embrace within its prohibition the acts complained of. I. The whole scope of the enactments of congress shows their intention to punish every American citizen who engages in the slave-trade. As early as 1794, they passed an act “to prohibit carrying on the slave-trade.” (1 U. S. Stat. 347.) This was followed, in 1800, by an additional act for the same purpose. (2 Ibid. 70.) In 1807, and in 1818, acts were passed, “to prohibit the importation of slaves into the United States.” (Ibid. 426 ; 3 Ibid. 450.) In 1819, additional prohibitions against “the slave-trade ” were adopted. (Ibid. 532.) And finally, in 1820, it was declared to be piracy. (Ibid 600.) This series of acts evinces the evident intention of congress to prevent the slave-trade—the traffic ; whether to the United States, or to foreign countries. When we examine the particular provisions of these various laws, the same intention is yet more apparent. The fitting out of vessels for the trade, their sailing outward, their employment in the actual traffic, their bringing slaves to the United States, or taking them to foreign ports, are all matters of minute regulation. No citizen can fit out or equip a vessel for the slave-trade, either in any part of the United States, or in any other place, to sail from the United States ; nor can he hold any property, directly or indirectly, in a vessel engaged in transporting slaves between two foreign countries ; nor can a vessel sail from the United States to engage in such traffic ; and if she clears out for the coast of Africa, security against her engaging in such traffic may be required, and must be given. (1 U. S. Stat. 347 ; 2 Ibid. 70 ; 3 Ibid. 450.) These are provisions to guard against, prevent and punish the preparatory or previous steps connected with this traffic. Again, the president is to cause an armed vessel to cruise on the African coast, and to bring into our ports all American vessels intended to transport slaves ; severe penalties are provided against any citizens who shall there take slaves on board, or transport them to a foreign country, or to the United States; or be found with any so brought, for the purposes of sale, in any of our ports or bays ; or hold, sell or dispose of them. (1 U. S. Stat. 347 ; 2 Ibid. 205, 426 ; 3 Ibid. 450, 532.) Here, then, is a series of enactments, providing against every contingency in which American citizens can be connected with this traffic, except their service in American or foreign vessels, during the outward voyage. Is it possible, that congress could omit to provide for this also ? Yet such is the fact, unless they have done so by thesecond arid third sections of the act of 10th May *1800. (2 Ibid. 70.) It is a well-established rule, that the cause producing L a law, and the general object to be attained, are to be considered in construing it. Preston v. Browder, 1 Wheat. 124. If this rule be applied, the inference is irresistible, that the legislature intended, by these sections, to include that portion of the traffic which is not elsewhere provided for ; that they intended the voluntary participation of our citizens in‘it should be punished, independently or equally with other conduct connected with such participation. II. Is this intention so expressed in the act, as to subject an offender to 393 468 ’ SUPREME COURT [Jan’y' United States v. Morris. its penalties ? Is he adequately warned, by its language, of the nature of the offence ? No doubt is expressed as to the clearness with which the intention of congress is made known on all points but one. The person, the service, the vessel, are clearly designated. But “ the voyage,” which it was intended to prohibit, is supposed to be doubtful. It is alleged, that “ employment in the transportation and carrying of slaves,” cannot refer to the outward voyage ; but relates exclusively to one during which the vessel has slaves actually on board. Is this the import of the words ? Are they not a general designation of the prohibited traffic ? Do they not signify the business in which the vessel is employed ? Coaches are engaged “ in the transportation of passengers : ” surely, the occasional want of a passenger does not change the character or description of their employment. Carriers are engaged in the transportation of merchandise, though their vehicles may be sometimes empty. Vessels are engaged in the fisheries, though a voyage of thousands of miles is necessary, before they reach the place where they are actually employed in fishing. Carriers of the mail are properly so designated, though no mail be, at a particu-lar moment, in their charge. Persons are employed in the post-office, though not performing, at every instant, the duties annexed to their office. Tonnage duties are payable by vessels “ employed in the transportation of goods coastwise,” at every entry, though they may be occasionally without a cargo. This construction is sanctioned by numerous acts of congress, relating to navigation, the fisheries, and the post-office establishment. 1 Story’s Laws 5, 208 ; 2 Ibid. 1353 ; 3 Ibid. 1986 ; 4 Ibid. 2256. But this signification is made more obvious by an examination of the particular statutes on this subject. The act of 1794 is entitled, “toprohibit carrying on the slave-trade” (1 U. S. Stat. 347), yet it provides against the “ fitting out” of vessels in our ports. How is this “ carrying on the slave-trade,” unless all parts of the general design are included in that phrase ? So, the act of 3d March 1819 (3 Ibid. 552), was passed “to prohibit the slave-trade yet it subjects vessels “ intended for the purpose of carrying slaves,” to forfeiture. So, the act of 10th May 1800.(2 Ibid. 70), upon the construction of which the present case turns, and which provides both for the punishment of persons, and the forfeiture of vessels ; condemns a vessel for being engaged in the *business of the slave-trade. Can it be contended, J that the outward voyage of a vessel fitted out for the slave-trade is not included in that language ; and if so, is it possible to exclude from the punishment prescribed by the act, a person voluntarily and knowingly serving on board the vessel, when its object was evidently to reach the one as well as the other ? Again, the third section punishes a citizen of the United States who voluntarily serves on board of a foreign vessel engaged in the slave-trade ; the second section punishes a citizen of the United States who voluntarily serves on board of an American vessel, engaged in transportation and carrying of slaves. Could congress intend to make the same act -of a citizen of the United States more or less criminal in the one case than in the other ? Yet so it must do, if a different meaning is to be given to the language used in the two sections. The construction contended for is also sanctioned by judicial decisions. The case of The Alexander, 3 Mason 175, was an indictment for holding a right of property in a vessel “ employed in the transportation, and carrying 394 1840] OF THE UNITED STATES. 469 United States v. Morris. of slaves.” The vessel was prepared for that purpose, but had taken no slaves on board ; yet the defendant was convicted. In the case of The Fortuna, 1 Dods. 81, the outward voyage was held to be a violation of the slave-trade acts. In the case of The Donna Marianna, Ibid. 91, Sir William Scott condemned a vessel, on the outward voyage, and not having taken any slaves on board, under the act of 23d May 1806 (23 Raithby’s Stat, at Large 326), although the words of that act only embrace a vessel in which slaves “ shall be exported, transported, carried,” &c. These are direct judicial decisions on the point in question. The same principle of interpretation may be recognised in other cases. The Emily and Caroline, 9 Wheat. 381, was a libel, under the act of 22d March 1794, which condemns a vessel, if she shall be fitted out for the slave-trade. Her fitting out was but just begun, yet it was held sufficient. In 7’Ae Merino, 9 Wheat. 391, two points are established : that the act of 10th May 1800 was meant to prevent any citizen of the United States from participating in or affording facilities for the slave-trade ; and this general intent was to be regarded in its construction. The Plattsburgh, 10 Wheat. 133, was condemned for being fitted out, under the act of 22d March 1791, though the equipment was only commenced. In the United States v. Gooding, 12 Wheat. 460, the vessel sailed from Baltimore, without any fitments, they being sent in another vessel to St. Thomas, where she was to put them on board ; yet this was held to be a fitting out at Baltimore. In the United States n. Quincy, 6 Pet. 464, an indictment for fitting out a vessel, with intent to employ her in committing hostilities, was sustained, although the fitment weie admitted to be insufficient. The result is, that where the general intent of a statute is to prevent certain acts, the subordinate proceedings, necessarily connected with them, and coming within that intent, are embraced in its provisions. It is true, that in penal laws, a more rigid rule of construction *prevails, than in relation to other statutes ; but that rule does not authorize or con- *-template a merely literal interpretation, at the expense of an evident intent, so expressed as to be well known to a person violating it. 5 Wheat. 76, 95 ; 2 Mason 144 ; 1 Paine 209. The act forbidden to be done was, voluntarily serving in this voyage, which was a voyage for the purpose of transporting slaves ; whether or not that purpose was fully effected, is immaterial, if it has been proved to the satisfaction of the jury, that such was in fact the purpose of the voyage then in progress; and that the participation of the defendant in it was voluntary on his part, with a knowledge of that purpose. Philip Hamilton, for the defendant, submitted the following written argument : Though four points are presented on the record, there are substantially but two, viz., the first and fourth. These decided, dispose of the others. 1. To sustain the prosecution, the case of The Alexander, 3 Ma«on, is chiefly relied on. The analogy, though ingenious, does not seem just ; as between a fostered trade and a pursuit denounced by a penal statute, to interpret that statute. The language used by congress in reference to the fisheries should not be adopted in reference to the slave-trade ; as the act in relation to the former speaks of “ carrying on fisheries “ employed in the 395 SUPREME COURT United States v. Morris. [Jan’y 470 fisheries “a fishing voyage ;” without defining any acts that shall constitute the pursuit or employment : it is otherwise in regard to the slave-trade. See Acts of Congress of 18th February 1793 (1 U. S. Stat. 305); Act of June 19th, 1813, § 1, 2 (3 Ibid. 2). 2. It is improbable, that the act of 1800, § 3, aimed to reach intent ; as the intent could not have been manifested in any other manner than by the precise acts inhibited by the second section, viz., the carrying, &c. The honest and the guilty trade would have been precisely similar to a certain point. Both vessels would go to the coast ; both would be similarly equipped ; both would there take slaves on board. The next movement indicates the intent, and is the very carrying trade denounced by the second section. It would be a strange anomaly, to legislate in regard to intent, after having legislated in regard to the particular fact, when the intent could only be established by the consummation of the act forbidden. Contemporaneous circumstances and interests repel the idea that intent was aimed at, as the friends of the trade would never jeopard it by exposing the lawful trader to be captured on her outward voyage, in order to discover, from the vessel, evidence that she intended to prosecute, an unlawful trade. 3. If congress aimed at intent, it would have been so expressed in the . _ act. No acts were ever more deliberated on, or more artificially *pre-J pared, than the early slave acts. The friends of the trade watched the legislation with too much jealousy, not to detect that lurking object, if it had existed. Refer to all the acts, and it will be found that wherever intent has been aimed at, it has been distinctly expressed. 1st, 2d and 3d sections of the act of March 1794 (I U. S. Stat. 347); 2d and 3d sections of the act of 20th April 1818 (3 Ibid. 450). 4. If the prosecutor can claim that intent was involved in the third section of the act of 1800, why may he not say it was also the subject of the fourth section of the act of May 15th, 1820 ? both acts using synonymous expressions—the act of 1800, “ employed in the slave-trade act of 1820, “ carrying on the slave-trade.” So, the third section of the same act subjects the offenders to capital punishment, who, “ engaged in a piratical cruise or enterprise,” shall land and commit robbery. The expressions are as general as “ carrying on fisheries ;” “ a fishing voyage :” yet, could a man be guilty of the capital offence, who was on board of a vessel designed for “ carrying on the slave-trade,” who did not decoy, or land and forcibly seize slaves ; or who was “ engaged in a piratical cruise or enterprise,” and did not land and commit robbery ? In this prosecution, the United States seek, by blending the second and third sections of the act of 1800, to sustain the construction that intent was aimed at. With the same propriety, they might contend, that the moment this vessel sailed from her home port, she was guilty of piracy, under the act of 1820, because she might have been designed for the purposes therein specified. This expanding and enlarging of statutes by construction ; this adaptation of statutes to the varying facts and circumstances of each case, rather than applying the varying facts to the immutable statute, is wholly inadmissible ; especially so, in criminal jurisprudence. 5. In the case of The Alexander, the learned judge interprets the first and second sections, by the third and fourth, and thinks congress intended the same thing. Admitting that, to a certain extent, they mean the same, 396 1840] OF THE UNITED STATES. 471 United States v. Morris. we still contend, that the third and. fourth sections are to be interpreted by the first and second. The meaning of the second section we get from the act itself, viz., the actual carrying of slaves. Section 1st (1800) gives double the value of slaves which may have been transported or carried. Section 4th forfeits all but the slaves which may have been found on board ; also, precludes the right to claim slaves found on board. The language of the second section so clearly and explicitly expresses the offence intended to be denounced, that every man who reads must understand what is forbidden ; hence there is no room for construction ; and the language must be taken in its natural sense and ordinary signification and import. 1 Kent’s Corn. 462. The words of a statute are to be taken in their natural sense, and ordinary signification and import. In the United States v. Wiltberger, 5 Wheat. 96, it is held : Where *there is no ambiguity in the words, there is no _ room for construction. The case must be a strong one indeed, to L justify a court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. That the second section is limited to the actual transportation, as we claim for it, will appear from a brief historical view of the slave acts. The constitution, art. 1, § 9, declares, that the migration or importation of such persons, as any of the states now existing (1789) shall think proper to admit, shall not be prohibited by congress, prior to the year 1808. That article secures the import trade, for a given period. In 1794, the current of public sentiment became irresistible, and by the act of that date, the traffic was cut up, so far as measures suggested themselves to the wisdom of congress, and were consistent with the sacred obligation of that instrument. The cardinal objects of the trade which could be reached, were the export and carrying trade. The subjects in regard to which congress could legislate, were vessels and persons. They might legislate over the property of citizens and foreigners residing within the United States, as well as over their persons. By § 1 of the act of 1794, vessels of citizens or foreigners fitted out from the United States to be employed in the export or carrying trade, were forfeited. By the 2d section of that act, they reached the persons of citizens or foreigners in the United States, by a severe penalty, who should fit out the vessels. Thus the subject rested, until the year 1800, when it was ascertained that the act of 1794, did not effectually accomplish its object; as ingenuity, sharpened by the hope of gain, soon devised means to evade that law. The carrying trade was found so lucrative, that though vessels might not be fitted out from the United States, still American capital might be em-baked in foreign vessels. By § 1 of the act of 1800, all right and property directly or indirectly owned in any vessel (American or foreign) employed in the carrying trade, was forfeited. Thus, American capital and American vessels being excluded, congress determining still further to cut up the trade, prohibited American citizens from rendering their personal services to promote it, and did so by the second and third septions of the act of 1800. The act of 1800 was merely auxiliary to the act of 1794 ; and from a careful examination of both, it will appear, that congress therein exhausted all their powers of legislation on the subject, embarrassed as it was by the constitution. 6. It thus appearing, that to prevent American citizens from serving on oard of American vessels employed in the carrying trade, was an essential 397 SUPREME COURT United States v. Morris. [Jan’y' link in the system, it is obvious, that the second section is to be expounded precisely as the concise and perspicuous language expresses, and that there is no room for construction. In the third section, a different form of expres-* sion is adopted. It would, *perhaps, be assuming too much to say, ’ J that the change was not a change of substance, rather than a loose and inartificial employment of language. We contend, that the third section means the same thing as the second, and something more. It means the slave-trade in foreign vessels, in all its illegal branches, so declared by congress. The second section is confined to one portion of it. It could not refer to the slave-trade prohibited by the laws of any other country, for two obvious reasons : 1. Because American citizens are not to be punished by the laws of the United States, for a violation of the municipal laws of any other power. 2. If otherwise, in point of fact, the slave-trade was a lawful trade in all its branches throughout the world, until long after this period. In 1807, the first act of the parliament of England was passed on this subject. If this proposition be correct, then the slave-trade punished by the third section, was the trade prohibited by congress, viz., the carrying trade and the export trade on board of foreign vessels ; to embrace these two branches, the general expression, “ slave-trade,” was peculiarly appropriate. Whatever might have been the object of congress, it is evident, by collating the acts and the sections of each, that the construction claimed for it by the prosecution cannot be sustained. 7. In addition to these considerations, the defect of wisdom should not be attributed to congress of passing a law that must inevitably result in the consummation of a wicked purpose. Once embarked in the pursuit, it is more dangerous to recede than to advance ; when to go forward presents the alluring prospects of gain, with the same, and perhaps, greater chances of impunity. Nelson, for the defendant, stated, that he would only ask the attention of the court to the acts of congress. The act of 1794 was intended to embrace two descriptions of cases. First, transporting of slaves from a foreign country to the United States : second, transporting slaves to foreign countries. It also applies to fitting out vessels to carry on the slave-trade. This was the condition of the law, when the act of 1800 was passed ; and the object of that act was, to make the penalties of the former act applicable to vessels not built in the United States. The purpose of this prosecution is not to forfeit the vessel, but to punish persons serving on board of a vessel engaged in the slave-trade. The employment of a person on board a vessel engaged in the transportation and carrying of slaves, is a very different thing from the employment of a vessel, or person on board of a vessel, designed to be employed in the slave-trade. Whenever the legislature design to punish intention, they so express it. Taney, Ch. J., delivered the opinion of the court.—This case comes before us upon a certificate of division from the circuit court of the United States, for the southern district of New York, in the second circuit. *4741 *^e defendant, Isaac Morris, is indicted under the second and third -• sections of the act entitled “ an act in addition to an act entitled ‘ an act to prohibit the carrying on the slave-trade from the United States to any foreign place or country,” approved on the 10th of May 1800. The 398 472 1840] OF THE UNITED STATES. 474 United States v. Morris. first count of the indictment charges that the defendant did, on the high seas, from the 15th of June until the 26th of August, in the year 1839, voluntarily serve on board of the schooner Butterfly, a vessel of the United States, employed and made use of in the transportation of slaves from some foreign country or place, to some other foreign country or place, the said defendant being a citizen of the United States. The second count charges' that the defendant did, on the high seas, from the 15th day of June to the 26th day of August, voluntarily serve on board of the schooner Butterfly,, being a foreign vessel employed in the slave-trade ; the defendant being a citizen of the United States. It was proved on the trial, on the part of the prosecution, that the schooner Butterfly, carrying the flag of the United States, and documented as a vessel of the United States, sailed from Havana, for the coast of Africa, on the 27th of July 1839, having on board the usual and peculiar equipments of vessels engaged in the transportation of slaves from the coast of Africa to other places. Before she reached the African coast, and before any slaves were taken on board, she was captured by the Dolphin, a British brig of war, and carried into Sierra Leone, upon suspicion of being Spanish property, to be proceeded against in the mixed commission court at that place. At the time of her capture, Isaac Morris was in command of the vessel, and was described in the ship's papers and represented himself as a citizen of the United States. The court at Sierra Leone declined taking cognisance of the case, because the vessel was documented as an American vessel ; and she was then sent to New York, to be dealt with by the authorities of the United States, as they might think proper. Upon the foregoing state of facts, the judges were divided in opinion upon the four following questions, which were presented on the facts aforesaid for their decision : 1. Whether it is necessary, in order to constitute the offence denounced in the second section of the act of the 10th of May 1800, above referred to, that there should be an actual transportation or carrying of slaves in the vessel of the United States, on board of which the party indicted is alleged to have served ? 2. Whether it is necessary, in order to constitute the offence denounced in the third section of the act of the 10th of May 1800, above referred to, that there should be an actual transportation or carrying of slaves in a foreign vessel, on board of which the party indicted is alleged to have served? 3. Whether the voluntary service of an American citizen, on *board a vessel of the United States, in a voyage commenced with the intent •- ' that the vessel should be employed and made use of in the transporting or carrying of slaves from one foreign country or place to another, is, in itself, and where no slaves had been transported in such vessel, or received on board her, an offence under the said second section ? 4. Whether the voluntary service of an American citizen, on board a foreign vessel, in a voyage commenced with the intent that the vessel should be employed and made use of in the transportation and carrying of slaves from one foreign country or place to another, is, in itself, and where no slaves have been transported in such vessel, or received on board her, an offence under the said third section ? And these points having been certified to this court, we proceed to express our opinion upon them. 399 SUPREME COURT United States v. Morris. [ J an’y The second section of the act of congress above mentioned, declares, •“ that it shall be unlawful for any citizen of the United States, or other person residing therein, to serve on board any vessel of the United States, -employed or made use of in the transportation or carrying of slaves from ■one foreign country or place to another ; and any such citizen or other person, voluntarily serving as aforesaid, shall be liable to be indicted therefor, and on conviction thereof, shall be liable to a fine not exceeding $2000 and be imprisoned not exceeding two years.’’ The first and third points certified from the circuit court, depend on the construction of this section. In expounding a penal statute, the court certainly will not extend it beyond the plain meaning of its words ; for it has been long and well settled, that such statutes must be construed strictly. Yet the evident intention of the legislature ought not to be defeated by a forced and overstrict construction. 5 Wheat. 95. The question in this case is, whether a vessel, on her outward voyage to the coast of Africa, for the purpose of taking on board a cargo of slaves, is “ employed or made use of” in the transportation or carrying of slaves from one foreign country or place to another, before any slaves are received on board ? To be “ employed” in anything, means not only the act of doing it, but also to be engaged to do it; to be under contract or orders to do it. And this is not only the ordinary meaning of the word, but it has frequently been used in that sense in other acts of congress. Thus, for example, the second section of the act of March 3d, 1825,entitled, “an act to reduce into one, the several acts establishing and regulating the post-office department,” declares, 11 that the postmaster-general, and all other persons ‘ employed’ in the general post-office, or in the care, custody or conveyance of the mail, shall, previous to entering upon the duties assigned to them,” take the oath prescribed by that section. Here, the persons who have contracted to per-form certain duties in the general post-office, are described as *“em-^6] ployed” in that department, before they enter upon the duties assigned them. So also, in the twenty-first section of the same law, various offences, such as the embezzling or destroying any letter, are enumerated, and the punishment prescribed, when committed by any person “ employed in any of the departments of the post-office establishment.” Yet it cannot be supposed, that the party must be actually engaged in transacting his official duties, when the letter was embezzled or destroyed, in order to constitute the offence described in this section. Again, the act of July 2d, 1813, § 8 (3 U. S. Stat. 4), declares, that certain vessels “ employed” in the fisheries, shall not be entitled to the bounties therein granted, unless the master makes an agreement, in writing or in print, with every fisherman employed therein, before he proceeds on any fishing voyage. Here, the vessel is spoken of as “employed” in the fisheries,before she sails on the voyage. So also, the act of March 3d, 1831 (4 Ibid. 492), entitled, “ an act concerning vessels employed in the whale fishery,” authorizes vessels owned by any incorporate company, and “employed wholly in the whale fishery, ’ to be registered or enrolled, and licensed in a particular manner, “ so long as any such vesse shall be wholly employed in the whale fishery.” The register or enrollmen and license, must be obtained before the vessel sails on her outward voyage to the whaling grounds; and consequently, in that voyage she must e 400 475 476 OF THE UNITED STATES. United Statesi. Morris. employed” in the whale fishery, in the sense in which these words are used in the act of congress ; otherwise, she would not be entitled to the register or enrollment and license authorized by this law. In like manner, the vessel in question was employed in the transportation of slaves, within the meaning of the act of congress of May 10th, 1800, if she was sailing on her outward voyage to the African coast, in order to take them on board, to be transported to another foreign country. In such a voyage, the vessel is employed in the business of transporting and carrying slaves from one foreign country to another. In other words, she is employed in the slave-trade. And any citizen of the United States, who shall voluntarily serve on board any vessel of the United States, on such a voyage, is guilty of the offence mentioned in the second section of this act ■of congress. It is hardly necessary to add, that “ voluntarily,” in this section, means, “ with knowledge ” of the business in which she is employed. And in order to constitute the offence, the party must have knowledge that the vessel was bound to the coast of Africa, for the purpose of taking slaves on board, to be transported to some other foreign country. The same reasoning applies to the th’rd section of the law, under which the second and fourth points certified to this court have arisen. The vessel is “ employed in the slave-trade ” when sailing to the African coast for the purpose •of taking the slaves on board. We, therefore, answer the first and second questions in the negative, *and the third and fourth in the affirmative ; and it will be certified accordingly to the circuit court. L ’ This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the southern district of New York, and on the points and’ questions on which the judges of the said circuit court were opposed in opinion, and which were certified to this court for its opinion, agreeable to the act of congress in such case made and provided and was argued by counsel. On consideration whereof, it is the opinion of this court: 1. That it is not necessary, in order to constitute the offence denounced in the second section of the act of the 10th of May 1800, referred to, that there should be an actual transportation or carrying of slaves in the vessel of the United States, on board of which the party indicted is alleged to have served. 2. That it is not necessary, in order to constitute the •offence denounced in the third section of the act of the 10th of May 1800, above referred to, that there should be an actual transportation or carrying of slaves in a foreign vessel, on board of which the party indicted is alleged to have served. 3. That the voluntary service of an American citizen on board a vessel of the United States, in a voyage commenced with the intent that the vessel should be employed and made use of in the transporting or carrying of slaves from one foreign country or place to another, is, in itself, and where no slaves had been transported in such vessel, or received on board her, an offence under the said second section. 4. That the voluntary ■service of an American citizen on board a foreign vessel, in a voyage commenced with the intent that the vessel should be employed and made use •of in the transportation and carrying of slaves from one foreign country or place to another, is, in itself, and where no slaves had been transported in 14 Pet.—26 401 3840] ' 411 SUPREME COURT [Jan’y Brown v. McGran. such vessel, or received on board her, an offence under the said third section. Whereupon, it is now here ordered and adjudged that it be so certified to the said circuit court accordingly. *478] *United States, Appellants, v. Heirs of Eleaier Waterman, Appellees. Florida land-claims. A grant of land by the government of Florida, made before the cession of Florida to the United. States by Spain, confirmed : every point involved in the case having been conclusively settled by the court, in their former adjudications in similar cases. Appeal from the Superior Court of East Florida. The case was submitted to the court, on the record, by C-ilpin, Attorney-General, for the United States. Baldwin, Justice.—This case comes up by appeal from the superior court of East Florida, in which the claim of the appellees to a tract of land described in the record, was confirmed by a decree of that court, proceeding pursuant to the acts of congress for the final adjustment of claims to land in that territory. • It has been very candidly and properly admitted by the attorney-general, that every point involved in the case has been conclusively settled by this court, in their former adjudications on similar cases ; it, therefore, becomes unnecessary to state the nature of the claim now before us, further * than that it is founded on a lawful grant, on conditions which have ’been -fully performed by the grantee. This court, therefore, orders, adjudges and decrees, that the decree of the court below, adjudging that the title of the appellees is valid under the treaty of 22d February 1821, between the United States and Spain, the laws and customs of Spain, the law of nations, and of the United States, be and the same is hereby affirmed ; and the cause < is remanded to the court below, with directions to proceed further therein, and to cause such further proceedings to be had as by law is directed. Decree affirmed. *479] *VriLLiAM and James Brown & Co., Plaintiffs in error, v. Thomas McGran, Defendant in error. Principal and factor.—Construction of instruments. An action was instituted against the consignees of 200 bales of cotton, shipped, by the direction of the owner, to Liverpool, on which the owner had received an advance by an acceptance of his bills on New York; which acceptance was paid out by bills drawn on the consignees of the cotton in Liverpool. Some time after the shipment of the cotton, the owner wrote to the consignees in Liverpool, expressing his “ wishes ” that the cotton should not be sold, until they should hear further from him ; in answer to this letter, the consignees said, “ your wishes in respect to the cotton are noted accordingly no other provision than from the sale of the cotton, for the payment of the advance, was made by the consignor, when the same was shipped; and no instructions for its reservation from sale were, given, when the shipment was made. Immediately after the acceptance of the bill drawn against the cotton, on the consignees in Liverpool, they sold the same for a profit of about ten per cent, on the shipment r cotton rose in price, in Liverpool, to more than fifty per cent, profit on the invoice, between t e 402 479 OF THE UNITED STATES. Brown v. McGran. 1840] acceptance of the bill of exchange, and the arrival of the same at maturity. The shipper instituted an action against the consignees, for the recovery of the difference between the actual sales and the sum the same would have brought, had it been sold at the subsequent high prices at Liverpool. It is certainly true, as a general rule, that the interpretation of written instruments properly belongs to the court, and not to the jury; but there certainly are cases, in which, from the different senses of the words used, or their obscure or indeterminable reference to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury, for the purpose of carrying into effect the real intention of the parties. This is especially applicable to cases of commercial correspondence, where the real objects, and intentions and agreements of the parties are often to be arrived at, only by allusions to circumstances which are but Imperfectly developed.1 There can be no reasonable doubt, that in particular circumstances, a wish expressed by a consignor to a factor, may amount to a positive command. In the case of a simple consignment of goods, without any interest in the consignee, or any advance or liability incurred on account thereof, the wishes of the consignor may fairly be presumed to be orders; and the “ noting the wishes accordingly,” by the consignees, an assent to follow them ; but very different considerations apply where the consignee is one clothed with a special interest, and a special property, founded upon advances and liabilities. Whenever a consignment is made to a factor, for sale, the consignor has a right, generally, to control the sale thereof, according to his own pleasure, from time to time, if no advances have been made, or liabsiities incurred, on account thereof; and the factor is bound to obey his orders; this arises from the ordinary relation of principal and agent. If, however, the factor makes advances, or incurs liabilities on account of the consignment, by which he acquires a special property in the goods, then the factor has a right to sell so much of the consignment as may be necessary to reimburse such advances, or meet such liabilities; unless there be some agreement between himself and the consignor which contracts or varies the right.2 If, contemporaneously with the consignment and advances or liabilities, there are orders given by the consignor, which are assented to by the factor, that the goods shall not be sold, before a fixed time, in such a case, the consignment is presumed to be received, subject to su h order; and the factor is not at liberty to sell the goods to reimburse his advances, until after that time has elapsed. So, when orders are given, not to sell below a fixed price ; unless the , consignor shall, after due notice and request, refuse to provide other means to reimburse the factor. In no case, will the factor be at liberty to sell the consignment, contrary to the 1 Turner v. Yates, 16 How. 23. 2 Where factors have made large advances, or incurred expenses on account of the consignment, the principal cannot, by any subsequent orders, control their right to sell, at such time, as in the exercise of a sound discretion, and in accordance with the usage of trade, they may deem best to secure indemnity to themselves and to promote the interests of the consignor; they acting, of course, in good faith and with reasonable skill. Field v. Farrington, 1 Pars. 141. There is no doubt, that such a course of dealing may exist between consignor and consignee, as would restrain the latter from selling at less than the invoice prices, without further advice; but all such cases must depend on their own special circumstances, such ns the usual course of previous dealings between the parties, the usages of the particular business, &c. The consignment of goods on which advances are asked and receiv-sd, involves the right in the consignee to sell the goods in the usual and accustomed manner, and at the regular market rates, in order to the closing of the transaction, and for the reimbursement of his advances. And where the consignor does not desire to subject himself to such liabilities, he should make special arrangements to meet his own views in relation thereto. After receiving an advance on his goods, the power of the consignor, in the absence of a special agreement to limit the prices at which they shall be sold, is at an end. He can impose no new terms on his consignee; the latter is bound no further to his principal, than to use all due and proper diligence, skill and attention, in selling the goods thus consigned, at the best rate the market affords, and in the manner required by the established customs and usages of trade. Smedley v. Williams, 1 Pars. (Pa.) 364-5. King, P. J. Nor can an attaching creditor of the consignor arrest the sale, without tendering to the consignee a repayment of his advances. Baugh v. Kirkpatrick, 54 Penn. St. 84. And see Blackwell v. Thomas, 28 N. Y. 67 ; Williams v. Tilt, 36 Id. 319. 403 479 SUPREME COURT [Jan’y Brown v. McGran. orders of the consignor, although he has made advances or incurred liabilities thereon, if the consignor stands ready and offers to reimburse and discharge such advances and liabilities. When the consignment is made, generally, without any specific orders as to the time and mode of sale, and the factor makes advances or incurs liabilities on the footing of such *con-J signment, the legal presumption is, that the factor is intended to be clothed with the ordinary rights of factors, to sell, in the exercise of a sound discretion, at such time, and in such manner, as the usage of trade and his general duty require, and to reimburse himself for his liabilities, out of the proceeds of the sale; and the consignor has no right, by any subsequent orders, given after advances have been made, or liabilities incurred, by the factor, to suspend or control this right of sale, except so far as respects the surplus of the consignment, not necessary for the reimbursement of such advances or liabilities. If a sale of cotton in Liverpool, by a factor, has been made on a particular day, tortiously, and against the orders of the owner, the owner has a right to claim damages for the value of the cotton on the day the sale was made, as for a tortious conversion; if the sale of the cotton by the factor was authorized, on a subsequent day, and the cotton had been sold against orders, before that day, the damages to which the owner would be entitled would be regulated by the price of cotton on that day; but the rate of damages is not to be obtained from the prices of cotton at any time between the day when the cotton was sold, against the orders of the owner, and the day on which the sale was authorized by him. Error to the Circuit Court of Georgia. In the inferior court of Richmond county, in the state of Georgia, Thomas McGran, the defendant, instituted a suit, by attachment, against the plaintiffs in error, to recover damages for the sale of two hundred bales of cotton, shipped by him to the plaintiffs in error, as his factors ; the cotton having been sold for a less price than the same would have produced, had the sales been made according to the instructions of the shipper. The declaration contained three counts, all upon the shipment of the two hundred bales of cotton, by Thomas McGran to William and James Brown & Company, at Liverpool, as the factors of the shipper. The first count alleged, that while the cotton remained in the hands of the consignees, the shipper ordered him to hold the cotton until they should hear from him again ; but the same was sold in violation of the order, and to the damage of the shipper. The second count charged the consignees with not having exercised reasonable diligence in keeping and selling the cotton ; but that they dealt with the same so negligently and carelessly, so that it was sold at a loss to the shipper. The third count alleged, that the consignees did not sell the cotton to the best interests of the shipper, nor did they obey his instructions ; but on the contrary, managed the same carelessly and negligently, and sold the same, contrary to orders, with a reasonable prospect of rise of the article, for $3000 less than the value of the cotton, at the time the same was sold. The case was removed, under the provisions of the judiciary act of 1789, to the circuit court of the United States for the district of Georgia; the defendants below not being citizens of the state of Georgia, and not residing in that state. The defendants pleaded the general issue, and the cause having been tried in the circuit court, the jury gave a verdict for the plaintiff, Ihomas * , McGran, under the directions of the court, for $4975.57.* *The defend- $1-1 ants excepted to the ruling of the circuit court, on questions su -mitted during the trial of this cause, and they prosecuted this writ o error. On the trial, it was given in evidence, that two hundred bales of cotton were shipped by defendant in error, from Mobile, to the plaintiffs in error. 404 1840] OF THE UNITED STATES. 481 Brown v. McGran. at Liverpool, as his factors, to be sold by them under a del credere commission. That this cotton was received by them, about the 9th of April 1833, and cost, per invoice, $9151.77. That the plaintiffs in error, through Brown, Brothers & Company, their house in New York, accepted, early in March 1833, a draft of defendant in error, for $9000, drawn against said cotton, upon their said house in New York ; that when this draft arrived at maturity, the said house in New York paid the same, and in order to reimburse themselves, and in pursuance of an arrangement between plaintiffs in error and defendant in error, drew upon the plaintiffs in error, at Liverpool at sixty days’ sight, for 187U. Os. ^d. This draft was dated May 7th, 1833, was accepted by plaintiffs in error, at Liverpool, June 3d, 1833, and fell due and was paid by them on the 5th of August following. That by the contract between the plaintiffs in error, and the defendant in error, the cotton in question became pledged by the defendant in error to the plaintiffs in error, to enable them to meet their acceptances and repay their advance thereon. After shipping the cotton and drawing against it as aforesaid, the defendant in error became insolvent. On June 3d, 1833, plaintiffs in error sold said two hundred bales of cotton for 2073Z. 4s. ^d., cash, September 16th, 1833 ; being a profit of about ten per cent. On the same day on which they sold this cotton, they sold 677 bales, in which their Baltimore house was interested ; and, in a wreek previous, had sold 216 bales, in which their Baltimore house was also interested. At the time of the sale of the 200 bales of cotton, the defendant in error was indebted to plaintiffs in error in a large sum. During the week in which the 200 bales were sold, the sales of cotton amounted to 47,250 bales ; a larger amount than in any previous week for about eight years. ' On April 20th, 1833, the defendant in error wrote to plaintiffs in error : “If you have any cottons on hand, when this reaches you, in which I am interested, I wTish you to hold them until you hear from me again.” This letter was received by William and James Brown & Company, on the 23d of May 1833 ; and on the day following, the 24th of May 1833, they wrote to Thomas McGran : “We are in possession *of your esteemed favor r*.R9 of the 20th ultimo, and your wishes in respect to the cotton we now hold on your account, are noted accordingly.” On June 9th, following, the plaintiffs in error wrote to defendant, annexing a circular, showing the extensive business done in cotton during the week, and a material improvement in prices ; and informed him, that, believing this advance would probably equal the expectations he had formed when he last wrote, and thinking it desirable to close his cotton in their bands, as they had then been drawn upon for the advance on it, they had taken advantage of this brisk demand to dispose of the 200 bales at an advance of one-half to five-eighths of a penny per pound upon its value when first landed. On July 30th, 1833, the defendant in error replied to the last letter, referring to his previous letter of April 20th, and asked of plaintiffs in error, “ why did you sacrifice my cottons, as the draft drawn by Brown, Brothers & Company, at sixty days, on account of these cottons, could not have been accepted more than a day or two before? Therefore, you had sixty days before you had any money to pay for me.” He adds, “ I do not recognise the sale ; and do not consider you authorized to sell the cotton before the time the draft drawn on you by Brown, Brothers & Company, against this cotton, falls due. If the 405 [Jan’y 482 SUPREME COURT Brown v. McGran. price is higher ou that day than the day you sold it, I will expect you to allow me the difference ; and if it is lower, I will be prepared to pay you any balance J may owe you.” On September 4th, 1833, the plaintiffs in error replied, that there had been a balance due to them from defendant; that the 200 bales were sold at an advance, and barely squared the accounts. That defendant had been obliged to stop payment, that any loss would be certain to fall on them, and profit not likely to go to him, but to his creditors. That the cotton was not sacrificed, but sold at a profit, such as is not frequently realized on that article ; that they sold some on account of their Baltimore house, and some immediately before, and immediately after, in which their said Baltimore house was interested. That near 50,000 bales changed hands in the same week. That, situated as the defendant in error then was, he could not reasonably have expected them to hold the cotton, without pointing out in what manner they should be indemnified in event of loss thereby. That the fact that Brown, Brothers & Company’s draft was not due, did not alter the case, as they had become responsible some months before, by Brown, Brothers & Company’s acceptance of the draft of the shippers. On July 22d, 1833, the defendant in error wrote to plaintiffs, that he had received their favor of the 24th of May, and noted the contents. That they would please to sell the 200 bales soon after the receipt of the letter, unless they were of opinion they could do better by holding a little longer. This letter was received by the plaintiffs in error, August 23d, 1833. *The counsel for the defendant below prayed the court to J instruct the jury, that the matters given in evidence on the part of the defendants were sufficient, and ought to be admitted to bar the plaintiff’s action ; which instruction the court refused to give. And the court further refused to instruct the jury : 1. That the advance by the house of Browns, in New York, was in effect an advance by the house in Liverpool; and after the advance so made, the shipper had no right to alter the instructions which were given at the time of such advance. 2. That the house in Liverpool having advanced so large an amount on this cotton, having a large previous unsettled claim against the shipper, and the said shipper having afterwards, and before the sale of the cotton, become insolvent ; the house in Liverpool had a right to sell for their reimbursement, notwithstanding the subsequent orders of the shipper. And the court instructed the jury, that it was their exclusive province to decide from the evidence in the cause, whether the defendants had advanced any money to the plaintiff on the cotton shipped by the Mary and Harriet. Whether, when the defendants sold said cotton, the plaintiff was indebted to them upon a previous unsettled claim, and whether the plaintiff had become insolvent before the sale of said cotton ; and also further instructed the jury, that if they found from the evidence in the cause, that the plaintiff had given instructions to the defendants, by his letter of the 20th of April 1833, not to sell any cottons which the defendants might have on hand when that letter reached them, in which the plaintiff was interested, until the defendants heard from him again, and that such instructions weie received and recognised by the defendants, by the evidence in the cause, and particularly by a letter given in evidence as one from the defendants to the plaintiff, dated the 24th of May 1833, in reply to the plaintiffs letter 406 OF THE UNITED STATES. Brown v. McGran. 1840] 483 to them of the, 20th of April 1833 ; that then the defendants were not justifiable in law in the sale of the 3d of June 1833, on account of the defendants having on that day accepted Brown, Brothers & Company’s draft for 18714 Os. 9c?., dated 7th of May 1833, at sixty days’ sight. And the court further instructed the jury, that if they found from the evidence in the cause, that cottons were selling for a higher price from the 3d June 1833, when the draft was accepted, and when the cotton was sold, until the time when the said draft was mature and payable, and if the evidence in the cause ascertained, at any time before the maturity of the draft, what such higher price was, and that the cotton belonging to the plaintiff could have been sold for such higher price ; that then the plaintiff was entitled to recover from the defendants the difference in price between the sum for which the defendants sold the plaintiff’s cotton, and the sum at which it might have been sold before or at the maturity of the draft. The defendants In the circuit court excepted to these instructions. *The case was argued by G. W. Brown, for the plaintiffs in error ; and by Jones, for the defendant. L Brown contended : 1. That although an agent is generally bound to conform to the instructions of his principal, the circumstances of this case were such as to give the plaintiffs in error a right to sell the cotton in question, notwithstanding the letter of the defendant in error, of April 20th, 1833. The cotton was shipped by McGran to the Browns, as his factors ; and this circumstance alone was equivalent to an authority to sell. The definition of a factor is, “ an agent who is commissioned by a merchant or other person to sell goods for him, and to receive the proceeds.” Selw. N. . P. 827. If, at the time when the consignment "was made, the consignor had given instructions as to the manner or time of sale, the consignees would have been bound to comply with them. But no such instructions were given. This was a general consignment ; and the evidence discloses the fact, that, upon the faith of this consignment, the Browns accepted bills to the amount of nearly the full value of the cotton. The invoice cost of the cotton was $9151.77 ; the bill drawn against it amounted to $9000. The evidence further shows (and all the evidence in the case was offered by the defendant in error) that this bill was accepted by the plaintiffs in error, through their house in New York of Brown, Brothers & Company. When this bill arrived at maturity, it was paid by the house in New York, who, in order to reimburse themselves, drew a bill upon the plaintiffs in error, dated May 7th, 1833, at sixty days’ sight, for 18714 0s. 9<4, which was accepted by them, June 3d, 1833, and fell due and was paid on the 5th of August following. This arrangement was in conformity with the contract made by the parties, was in accordance with the regular course of trade, and was highly advantageous to the shipper. The cotton arrived at Liverpool, April 9th, 1833, and was not sold until June 3d—a period of fifty-five days. At the time of the sale, McGran was indebted to the plaintiffs in error in a considerable balance, and had become insolvent. Under these circumstances, it is contended, that the plaintiffs in error ; acquired a special property in the cotton, with a power of sale, in order to reimburse themselves for the advance made through their house in New York, and to put themselves in funds to meet their acceptance of the bill 407 484 SUPREME COURT [Jan’y Brown v. McGran. drawn by said house against the shipment. 2 Kent’s Com. 640, 642 ; Story ii on Bailments 204-5, 218 ; Story on Agency 382 ; Parker v. Branch er, 22" Pick.; 40 ; 3 Chitty on Com. & Manuf. 551; Pothonier v. Dawson, Holt 383^ Zoit v. Millauden, 16 Mart. 470. The contract of the consignees with the consignor, in effect amounted to this : “We will consent to accept to such an amount *upon your -I consignment, provided we have the right of selling, in order to put ourselves in funds to meet our acceptance.” That such a right to sell existed, seems to be admitted by McGran throughout the correspondence notwithstanding his complaints as to the time when the sale was made. Upon the principles of commercial law, McGran, having drawn upon the Messrs. Brown without having funds in their hands, was bound to put them in funds to meet the bill so drawn. Bainbridge n. Wilcocks, 1 Bald. 538. There is a strong analogy between the case of a consignment of goods,, to secure an acceptance or advances, and the case of a mortgage with a power to sell annexed. Drinkwater v. Goodwin, Cowp. 256. In both cases,, there is a power to sell, coupled with an interest or estate in the thing pledged. Bice n. Austin, 17 Mass. 200 ; Hunt v. Rousmanier, 8 Wheat. 203. This power was irrevocable ; it could not be affected by the express revocation of McGran, nor by the death of bankruptcy of the consignor or consignees. Story on Agency 387, 504 ; 1 Bell’s Com. § 413 (4th edit.). And, d fortiori, it could not be revoked by the mere expression of McGran’s wishes, contained in his letter of April 20th. McGran does not “ order” nor “ directhe does not even “ request;” but makes use of the mildest word that can express the idea of desire ; he simply “wishes.” But it will be contended, that McGran’s wishes became binding upon the plaintiffs in error, upon their supposed assent contained in their reply of May 24th, 1833. They there say, that they had received the letter of defendant in error, and that his wishes in respect to the cotton they then held on his account were “ noted accordingly.” The expression means nothing more than that they observed the wishes of their correspondent, as contained in his letter;. they do not promise to comply with them in all events; they reserve to themselves the privilege of giving effect to them or not, as might be consistent with the protection of their own interests and legal rights. The expression “to note” never properly means to assent; and no usage can be found to justify our attaching to it such a signification in this case. Crabbe’s Syn.; Webster’s Diet. There are many much stronger cases in the law, where similar expressions have been decided not to be equivalent to an assent. Perring v. Hone, 4 Bing. 18, Opinion of Best, J.; Rees n. Warwick, 2 Barn. & Aid. 133 ; observed upon by Parke, J., in Fairlie v. Herring, 13 Eng. C. L. 78 ; Powell v. Jones, 1 Esp. 17 ; 2 Pardessus, Cours de Droit Commercial, 171. But if, in mercantile language, the expression conveys the idea of assent, there should be some evidence offered of that fact. The learned judge before whom the case was tried, erred in leaving it to the jury to say : 1st. Whether the defendant in error, by his letter of April 20th, instructed the plaintiffs in error ; and 2d. Whether the plaintiffs in error recognised these instructions; when no evidence whatever was laid before the jury to * ~ en^g^ten them as to the meaning of the expressions used. Story on -* Agency, 63, 72, note 1 ; * Ekins v. Macklish, Ambl. 184-5 ; Mechan-408 1840] OF THE UNITED STATES. W Brown v. McGran. ics* Bank v. Bank of Columbia, 5 Wheat. 326 ; Lucas v. Groning, 7 Taunt, 164; Macbeath v. Haldlmand, 1 T. R. 172. McGran, in his letter of July 30th, in which he complains of the sale of the cotton, really admits the right of the Browns to sell, in order to meet the bill drawn on them. He © * says, “ I do not recognise the sale, and do not consider you authorized to sell the cotton before the draft drawn on you by Brown, Brothers & Company, against this cotton, falls due. If the price is higher on that day than the day you sold it, I will expect you to allow me the difference ; and if it is lower, I will be prepared to pay you any balance I may owe you.” Now, this abandons the whole ground. McGran, by his letter of April 20th, had instructed, as it is contended on the other side, the plaintiffs in error, not to sell until they heard from him again. They did not hear from him again until August 23d, when his next letter, dated July 22d, and ordering them to sell, was received. Now, the plaintiffs in error were bound by the instructions of McGran, or they were not. If they were bound, they had no right to sell until August 23d, when his orders to sell were received. If they were not bound, as McGran admits (for he concedes that they had a right to sell at the date af the maturity of the draft, August 5th), then they were to use their own discretion, as skilful and honest factors, as to the time of sale. McGran admits they had a right to sell, in order to meet the bill, notwithstanding his instructions ; but limits them to a single day —that of the maturity of the draft. This position is absurd. On that day, it might have happened, that no purchasers could be found, or that the cotton had fallen so low that the whole would not produce enough to meet the bill. Again, if McGran had the right to instruct his factors to hold his cotton for four months, he would have had the same right to instruct them to hold it for four years. He might have done so with little inconvenience to himself ; for he had received as an advance nearly the whole invoice cost. This argument derives much additional force, from the fact that McGran, at the time when the order not to sell was given, had become • _ e • O' insolvent, and was in debt to plaintiffs in error. The policy of the law will induce the court to uphold the sale. The Messrs. Brown acted in good faith, and, no doubt, with prudence, although the result proved unsatisfactory. They did all that could be expected, for they acted for McGran precisely as they did for themselves. On the same day, they sold 677 bales, on account of nine different parties, in part of which their Baltimore house was interested ; and, within a wreek previously, 215 bales, in which the Baltimore house was also concerned. A larger business was done at Liverpool in cotton, during the week in which the sale was made, than had been done in any one week for the preceding eight years. The cotton was held upwards of fifty days, and sold at a profit of nearly ten per cent, more, according to the testimony, than is generally realized in that article. Where no fraud is chargeable on an agent, his conduct ought to receive a liberal and favorable construction. Drummond v. Wood, 2 Caines 310. But if the plaintiffs in error did recognise the instructions of the defendant in error, it was merely an admission as to the egal effect of a contract, and cannot conclude them. 2 Phil, on Evid. (4th edit.), and cases there cited. But conceding, for the sake of argument, that the correspondence in the case amounts to an agreement on the part of the plaintiffs in error, that they 409 487 SUPREME COURT [Jan’y Brown v. McGran. would hold the cotton until instructed by McGran to sell; it is contended, that such an agreement would not be binding, because it was made without consideration. A valuable consideration had already passed between the parties. McGran had shipped cotton to plaintiffs in error, who, upon the faith of the shipment, had come under an advance and acceptance to a large amount ; the contract was then concluded, and binding upon both parties, and no new agreement could be engrafted upon it, without a new consideration. To make a contract binding, the consideration must be either a benefit tb the party promising, or some trouble or prejudice to the party to whom the promise is made ; but here there was merely a gratuitous undertaking on the part of the plaintiffs in error to comply with the wishes of the defendant in error. Suppose, that McGran, in his letter of the 20th of April, had written to the Messrs. Brown, that he had become dissatisfied with their -conduct as his factors, and requested them, upon the receipt of his letter, *to deliver the cotton to some other agent named by him, and that the Messrs. Brown had replied, that they had received his letter, and noted his wishes accordingly. Could it be, for a moment, contended that upon the strength of this supposed assent, McGran could sustain an action of trover against the plaintiffs in error for the cotton, without paying the amount of their advances ? But if the assent of the plaintiffs in error in the case at bar, was sufficient entirely to destroy their rights over the cotton in question, there is no reason why it should not do so in the case supposed. 2. But it is contended, that the court erred in instructing the jury that the measure of damages was the difference between the price for which the cotton was sold, and that which could have been obtained at any time from the day of sale to the period when the bill arrived at maturity. The cotton was sold June 3d. On the same day, the bill was accepted, and became due August 5th. But McGran had, as he alleges, by his letter of April 20th, forbidden the Messrs. Brown to sell, and his next letter, authorizing them to sell upon its being received, was not received until August 23d. If, then, the plaintiffs were bound by his instructions, they were not authorized to sell until August 23d ; and the damage, if any, sustained by him, is for their not selling on or after that day. But there is no evidence in the case to show *4881 *w^a^ was cotton on or after that day, and therefore, it J does not appear that McGran had sustained any damage whatever. The relation of principal and agent is governed by the general rules of the law, founded on reason ; and if the principal suffers through the remissness or negligence of the agent, the actual loss sustained by the principal, in consequence of such misconduct, is the standard by whicjh his damages must be measured. Hamilton v. Cunningham, 2 Brock. 366. 3. It is also contended, that the court erred in instructing the jury, that if they found from the evidence in the cause, that cottons were selling for a highei- price from the 3d June 1833, when the draft was accepted, and when the cotton was sold, until the time when the draft was mature and payable, and if the evidence in the cause ascertains, at any time before the maturity of ■ the draft, what such higher price was, and that tho cotton belonging to the defendant in error could have been sold for such higher price, that then the defendant in error was entitled to recover from the plaintiffs in error the difference in price between the sum for which the plaintiffs in error sold the cotton of defendant in error, and the sum for which it might have been 410 1840] OF THE UNITED STATES. 488 Brown v. McGran. «old, before or at the maturity of the draft, without making it necessary for them to find any other fact. This instruction is entirely independent of, and unconnected with, the preceding instructions of the court. Upon finding simply the facts mentioned in it, the jury were told, that they must bring in a verdict for the defendant in error, without reference to any of the other important facts proved in the case. This instruction was calculated to mislead the jury, and is therefore erroneous. Gist v. Cockey, 1 Har. & Johns. 141. Jones, for the defendant, denied that the acceptance of a draft, drawn by the owner or consignor against goods shipped to the factor, gives a right to the factor to sell the goods, before the draft is payable. He cited, 6 Barn. & Cres. 36 ; 1 Camp. 410 ; 2 Stark. 272 ; 2 Saund. Plead, and Evid. 641. He contended, that the letter of .the plaintiffs in error, of the 24th May 1833, in answer to the letter of Thomas McGran, of the 20th of April 1833, in which they say, “your wishes in respect to the cotton we now hold on your account, are noted accordingly,” was a contract not to sell the cotton, until further instructions from the owner of the same. That it amounted to an unequivocal accession, in terms, to the order of the 20th of April, and to the clearest implication to abide by it. Yet, on the 23d June, when the time had arrived when the duties on cotton were reduced, a period when the prices of cotton would increase, and before the effects of that, and othei’ concurring causes of a rapidly increasing demand, and proportional advance of prices, could be fairly developed, they forced his coton into market, in the *teeth of his order, and of their unquali- r:fc fied accession to its terms, only ten days before. Cotton continued to L advance in the Liverpool market after the sale ; and at the time the plaintiffs in error were authorized by the subsequent letter of Thomas McGran to make sales, it had risen to a price which fully authorized the verdict of the jury. But there was no occasion, nor was there any right, to sell the cotton shipped by the defendant in error, for the purpose of reimbursement, until the acceptance of the bill drawn in New York should be matured. No advances in cash had been made by the house in New York, and nothing had been paid by the house in Liverpool. The whole accommodation afforded to the shipper of the cotton was mere paper facilities, by acceptances in New York ; and when those acceptances became due, by a draft on Liverpool. Mr. Jones considered that the proper test of the amount of the damages to which the defendant was entitled, was that which, under the instructions of the circuit court, had been adopted by the jury. The evidence showed the rise of the price of cotton, and as the plaintiffs in error were bound to keep it,after their receipt of the lettei' of the 20th of April, the j rices, until the draft was paid, should be considered as those to which the owner of the cotton was entitled. He argued : 1. That as to the instructions rejected by the court, they were both in form and substance, in all their premises, and in all theii’ conclusions, utterly inadmissible. 2. That the instructions actually given by the court to the jury, so far from supplying any cause of complaint, were even more favorable to defendants than any they were strictly entitled to ask, and in all other respects unexceptionable. Brown, in reply.—The argument of the learned counsel for the defend- 411 489 SUPREME COURT [Jan’y Brown v. McGran. ant in error proceeds upon the ground, that the plaintiffs in error had a mere lien on the cotton in question, which could be waived by such an assent as is supposed to be implied by their letter of May 24th. But the authorities cited show, that factors, under the circumstances existing in this case, have something more than a naked lien ; they have a special property in the thing itself—a power of sale, coupled with an interest; and such a right cannot be waived, without at least an intention to do so being clearly and unequivocally expressed. Story, Justice, delivered the opinion of the court.—This is a writ of error to a judgment of the circuit court of the district of Georgia, rendered in an action in which McGran, the defendant in error, was originally plaintiff. In the spring of 1833, McGran, a merchant in Georgia, shipped two hundred bales of cotton, consigned to the plaintiffs in error, a house of trade iu Liverpool, England, there doing business under the firm of William and *4onl James Brown & Company, for sale on *his account. The shipment J was made under an arrangement with the house of Brown, Brothers & Company, of New York, composed (as seems admitted) either wholly or in part of the partners in the Liverpool house, by which the New York house accepted a draft drawn upon them by McGran for $9000, the invoice value of the cotton being only $9151.77 ; and were to reimburse themselves by a draft on the Liverpool house. Accordingly, the New York house, on the 12th of March 1833, addressed a letter to the Liverpool house, in which they state : “ We inclose a bill of lading for two hundred bales of cotton, shipped by McLoskey, Hagar & Company, of Mobile, per ship Mary and Harriet, on account of Mr. Thomas McGran, of Augusta, on which you will please effect insurance. This cotton cost, per invoice, $9151.77. We have accepted Mr. McGran’s draft against this cotton, for $9000, for which we shall draw on you for our reimbursement, when it matures. In handing this draft for acceptance, Mr. McGran says, he would not have drawn for so large an advance, were it not that there is a balance at his credit with you, which has accumulated within the past two years ; so that if this should not produce enough to meet the advance, it will be covered by what is at his credit.” The existence of any such balance was utterly denied at the trial ; and the Liverpool house contended, that there was a balance the other way. The cotton duly arrived at Liverpool, on or about the 9th of April 1833. The New York house drew on the Liverpool house for their reimbursement, a bill dated the 7th of May 1833, for 1871Z. 0s. 9 claims upon it, made prior to, or at the same time with Mrs. Decatur’s, under prior or equal legal sanctions, and it was insufficient to pay all ? By this test, it was a proceeding that might, nay, must, of necessity, be varied; 427 508 SUPREME COURT [Jan’y Decatur v. Paulding. the exercise of the trustee’s discretion was required to examine the state of the fund and the validity of other claims ; and the performance of the required act must depend on, and might be varied by, the result of that examination. Again, this court held, in the same case (1 Cranch 164), that where the secretary of war was directed by an act of congress to place certain designated names on the pension list, his refusal would authorize a mandamus. In such a case, the duty of the executive officer is plain ; had congress directed Mrs. Decatur’s name to be put on the pension list, it would have prescribed an act merely and strictly ministerial ; but they order him to pay her out- of the navy pension fund, of which he is trustee, which he is bound to administer and dispose of according to other existing laws, and to the legal sufficiency of which he must look, whenever he makes a payment. So, when it was held, that the secretary of state might be compelled to deliver a patent which had been duly signed, sealed and recorded (1 Cranch 165), we have a proceeding which could not be varied ; the secretary could do nothing but the act required ; it had no communion with any other act; but suppose, the patent had not been signed and.sealed, and that the secretary was of opinion, that all the necessary pre-requisites had not been complied with ; or suppose, the right of the patentee was limited to a location within a certain designated body of land (as in military bounties), and all the lands therein had been exhausted, could the secretary, in such a case, be compelled to issue and deliver the patent by a writ of mandamus ? Again, the court , held, in the same case, that an officer might be Compelled to do an 5 -I act, peremptorily enjoined, and affecting individual or private rights (1 Cranch 166) ; thus distinguishing such an act from those of a public or political character, or those which affect the rights and interests of various persons. To place a name on the pension list, to deliver his patent to a patentee, to record the commission of a justice of the peace, are acts not of a public concern, but solely affecting the interest of the individual. On these, as the court say, it is “their province to decide ; not to inquire how the executive, or executive officers, perform duties in which they have a discretion.” Is the plaintiff in error solely interested in the act which she requires the secretary of the navy to do? Does it affect her individual rights alone ? Are not other claimants on the fund equally interested ? Is not the executive officer responsible for the correctness of his decision in performing a public trust ? Are not the nation, the public, bound to see that the fund is properly applied, and to make good any deficiency arising from an erroneous payment, even though made under the sanction of the circuit court of this district ? The tests thus established by this court, in the case of Marbury v. Madison, exclude the act asked for by the plaintiff in error, from the class of ministerial acts ; they place it clearly among those which are executive, and to a certain extent discretionary. In the case of McCluny v. Silliman, 2 Wheat. 369, a pre-emption claim had been rejected by the register of the land-office, on the ground, that t e •land belonged to another ; a mandamus was refused, because the court he , that they had no controlling power over the officer, in such a case, whatever might be the justice of the applicant’s claim ; but that “ the parties must be referred to the ordinary mode of obtaining justice, and not resort to t e extraordinary one of a mandamus.” Yet in what respect was the procee 428 1840] OF THE UNITED STATES. 509 Decatur v. Paulding. ing asked for in that case, less sustained by law than the present ? The case of Kendall v. United States, 12 Pet. 610, was, like that of Marbury v. Madison, very fully examined ; important principles were settled ; rules were carefully laid down ; and those cases distinguished in which an executive officer would be, and would not be, compelled to act by a mandamus. The court said, that to justify such a proceeding, the act required to be done, must be “ a mere ministerial act;” the postmaster-general was “ to credit ” the relators with a certain sum exactly ascertained and reported to him by an officer authorized so to do ; the act was precise, definite and purely ministerial; no money whatever was to be paid. All those are points distinguishing the case from the present one, especially the payment af money ; here, too, it is to be withdrawn out of a particular fund in the treasury, which, as the officer having it in charge believes, is appropriated to other purposes. These decisions of this court seem to be sufficient to sustain the judgment of the court below, and they are abundantly sanctioned, if it were necessary to go beyond them, by the opinions of other tribunals. 3 Hall's Law Journ. 128 ; 5 Binn. 104 ; 6 Ibid. 9 ; 1 Whart. 1. They *- $ mark with exactness the line between executive and merely ministerial duties; and they place the act which the secretary is now called on to perform, clearly within the former. It is one requiring the exercise of deliberate judgment in the construction of a long series of laws ; in a determination between conflicting legal provisions ; in ascertaining the rights of different parties, that may seriously interfere with each other, and in apportioning between all an inadequate fund. It is, therefore, in no sense, an act in which a court is authorized to interfere with an executive officer. Much less is it so, when the effect of such interference must be to require a revision of decisions previously made in the most deliberate manner, and to oblige every incumbent of an office, already laborious, to investigate and open anew, without the exhibition of additional facts, subjects that have been already fully and finally decided. 2. But if the act which the secrtary of the navy is required to perform were ministerial, and such as a court having competent jurisdiction might compel him to perform ; it is yet submitted, that upon the merits the applicant would not be entitled to the relief prayed for. Mrs. Decatur had no right to claim payment under the resolution, having received it under the general law. To make such a double payment out of the navy pension fund, would be a violation of the trust created in the establishment of that fund. It was not raised by congress ; it was taken from the sale of prizes captured by the naval officers and seamen. By what right, on what principle, of justice, can the widow of one officer receive from that fund twice as much as another ? Congress never designed so to violate the principles of justice, or so to appropriate any portion of a fund raised by the services and gallantry of the whole navy. That they could not, is strikingly shown in the instance of their gratuity to the widow of Commodore Perry ; she was entitled to her pension from this fund ; but when congress resolved, under circumstances of strong sympathy, to add to her compensation, they gave her an annuity “ payable out of the treasury ; ” not a double pension, to be taken-from the navy pension fund, to the detriment of those to whom it belonged, according to the terms of the original trust. (6 U. S. Stat. 260.) 429 510 SUPREME COURT [J an’y Decatur v. Paulding. It was evidently the intention of congress, to substitute the general for the special provision ; to give to all the widows of the officers and seamen, the same relative gratuity ; with this object, the special resolution in favor of Mrs. Decatur was withheld till the latest moment; it was only when it was found that a difference between the two houses might prevent the passage of the general bill, at that session, that the special resolution in her behalf was adopted. This is evinced, by the identity of every provision in the two, except that which prolongs the pension during life. An intention so clearly exhibited must always prevail in construing a statute. Brown v. Barry, 3 Dall. 365. But were there a doubt as to the intention to abrogate the special provision by the general law, it would not sanction the J assumption that congress meant the latter to apply to the case of Mrs. Decatur, while the former continued in force. It would be more reasonable to suppose, that her claim, having been separately presented, separately discussed, and separately legislated upon, any which she might have had under the general law was extinguished. In the construction of statutes, where a general legislative provision embraces a special one, it is a substitute for, not an addition to it. The general provision embraces and controls the special one. This arises from two well-established principles in regard to statutes : that all legislative provisions on the same subject are to be. taken together ; and that later regulations, if at variance with previous ones, are to control them. It is said by Lord Coke (2 Inst. 13), that earlier clauses in the same statute are to be restrained by those that are subsequent. Where an act provided for the place where treason, committed by particular persons, should be tried, and a subsequent act established the mode of all trials for treason, the latter was held to supersede the former. 11 Co. 63. In Rex v. Loxdale, 1 Burr. 447, it is said, that all statutes relating to one subject are to be taken together. When the act of 5 Geo. III. punished “ seducing artificers,” with three months’ imprisonment, and that of 23 Geo. III., with six months, the last was held to supersede the former ; though there was no express repeal. Rex n. Cator, 4 Burr. 2026. In Williams n. Pritchard, 4 T. R. 2, it is said, that a subsequent act controls a prior one on the same subject. In the Attorney- General n. Chelsea Waterworks, Fitzg. 195, it is said, that the latter part of the same statute controls the former part. In Bywater v. Brandling, 1 Barn. & Cres. 643, it is said, that statutes are to be so construed as to give effect to the whole, not to separate clauses. In Gage v. Currier, 4 Pick. 399, where an act of 1793 gave limited privileges, as to church membership, to a particular town, and an act of 1823 gave general privileges on the same subject to the whole state, the latter was held to supersede the former. Applying these principles, we must admit, that where a pension to the widow of a deceased officer is given, and subsequently thereto, a pension is allowed to all such widows, including by its terms the one for whom the special act was passed, it is to be taken as one general provision. It is held, that the same rules should govern the construction of statutes as of wills. Butler and Baker's Case, 3 Co. 27 ; Attorney- General v. Chelsea Waterworks, Fitzg. 195. If so, the principle contended for is clearly established. It cannot be doubted, that if, in a will, an annuity for five years, of a specific sum, payable out of a specific fund, were bequeathed to the plaintiff 430 1840] OF THE UNITED STATES. 511 Decatur v. Paulding. in error, and shortly afterwards, by a codicil, an annuity in ad respects similar, except that it was to last for life, were bequeathed to a class of persons of whom the plaintiff was necessarily one, that the latter would be regarded, not as an addition to, but a substitute for, the former. In St. Albans n. Beau clerk, 2 Atk. 638, where the same sum *was given to the same person, in twro codicils, it was held to be but one legacy ; *-and that even a greater sum to the same person is only an augmentation, not a second legacy. In James v. Semmens, 2 H. Bl. 213, an annuity of the same sum, to the same person, in a will, and afterwards in a codicil, was held to be but one, because made chargeable on the same fund. In Allen v. Callow, 3 Ves. 289, a legacy was given to a child named, and by a codicil, the same sum to the children generally ; and it was held to be a mere repetition. In Osborne v. Leeds, 5 Ves. 384, a legacy to children generally, and a codicil giving the same sum to a particular child, was held to be merely a repetition. In Dewitt n. Yates, 10 Johns. 158, a legacy to a grand-daughter, and afterwards one of the same sum to the same person, but payable by a different legatee, was held to be only a substitution. None of these cases are so strongly indicative of the intention to substitute the last for the first provision, as that of Mrs. Decatur. But if the first provision be not superseded, is it not expressly repealed by the last? The general act provides, that the navy pension fund shall be distributed in a certain manner, and no other ; it then repeals all other laws at variance with it. Is not the special act, therefore, repealed ? Even if not superseded or repealed, does not the well-established principle apply, that where two modes are are given to recover the same thing, one must be chosen? Co. Litt. 145. On these several grounds, it is submitted, that the plaintiff in error, having received her pension under one law, cannot claim it under the other, for which the former was only a substitute. Even if both were passed intentionally ; if congress, on the same day, knowingly passed two distinct acts, relating to the payment of a widow’s pension out of the navy pension fund, they can be regarded only as two sections of a single law ; the one providing for the person named, the other for all widows. How would the clauses be considered in such a case ? The most favorable construction would be, that Mrs. Decatur might take under either—might claim her right to select; that she was to have a special benefit, if she chose under the one section, not being required to offer any evidence to sustain her claim, as others were obliged to do ; or that she was to have her pension for life, if she preferred to waive that benefit. The special clause excepted her from the general provisions imposed on all other persons. Hex v. Armagh, 8 Mod. 8 ; Churchill v. Crease, 5 Bing. 180 ; Torrington n. Hargraves, Ibid. 492. 3. But again, the circuit court was right in refusing the mandamus, because it asked for the payment of a sum under the resolution, which the resolution did not warrant. The plaintiff in error asked a mandamus to compel the secretary of the navy to pay her the full and entire amount of the sums of money stated in her petition, which were one-half of the monthly pay of her husband, and also one-half of the daily rations to which he was entitled. The resolution gives her a pension “in conformity with the provisions of the act concerning naval pensions and the navy pension fund, *passed 30th June 1834” (4 U. 8. Stat. 714), and also, “the arrear- •- 431 513 SUPREME COURT [Jan’y Decatur v. Paulding. ages of the half-pay of a post-captain.” No authority or reason for including the daily rations (the subsistence of an officer or seaman) in his pay, can be shown, either by statute or usage. Uniform construction, from the beginning of the government, has excluded them. This exposition of the law is so strong, that a court of justice would now scarcely change it, even if the language admitted of doubt. 1 Dall. 136, 178-9. The whole current of legislation shows that they are considered as distinct. 1 Story’s Laws, 321 502, 514 ; 2 Ibid. 130, 1090, 1210 ; 3 Ibid. 1810. And in the case of Parlier n. United States, 1 Pet. 297, it evidently appears, that this court regarded the rations of an officer as distinct from his pay. On these gounds, it is submitted, that it was no error in the circuit court to refuse the mandamus which was prayed for. The act of the secretary of the navy, which it was sought to compel, was not such as that tribunal had a right to control ; and if it had been, the payment already received by the plaintiff in error appears to have been all that congress intended her to have, by virtue of the resolution on which, she relied. That the generous liberality of the legislature might be justly extended to reward the gallant services of the brave and lamented Decatur, no one can doubt ; but it is not to be supposed, that they desired to effect that object, by an unequal charge upon a fund collected by the gallantry and intended for the benefit of the officers and seamen of the navy in general. Taney, Ch. J., delivered the opinion of the court.—This case is brought here by a writ of error, from the judgment of the circuit court of the United States for the district of Columbia, refusing to award a peremptory mandamus. The material facts in the case are as follow : By an act of congress, passed on the 3d of March 1837, the widow of an officer who died in the naval service, became entitled to receive out of the navy pension fund half the monthly pay to which the deceased officer would have been entitled, under the acts regulating the pay of the navy, in force on the 1st day of January 1835 ; the half-pay to commence from the time of the death of such officer ; and upon the death or intermarriage of such widow, to go to the child or children of the officer. On the same day, the following resolution was passed by congress : No. 2. Resolution granting a pension to Susan Decatur, widow of the late Stephen Decatur. Resolved, by the senate and house of representatives of the United States of America in congress assembled, that Mrs. Susan Decatur, widow of the late Commodore Stephen Decatur, be paid from the navy pension fund, a pension, for five years, commencing from the 30th day of June 1834, in'conformity with the provisions of the act concerning naval pen-*5141 s’ons *and the navy pension fund, passed the 30th June 1834, and that she be allowed, from said fund, the arrearages of the half-pay of a post-captain, from the death of Commodore Decatur, to the 30th of June 1834, together with the pension hereby allowed her ; and that the arrearage of said pension be vested in the secretary of the treasury, in trust for the use of the said Susan Decatur : provided that the said pension shall cease on the death or marriage of the said Susan Decatur. Approved, March 3, 1837. 432 1840] OF THE UNITED STATES. 514 Decatur v. Paulding. By the act of congress of July 10th, 1832, the secretary of the navy is constituted the trustee of the navy pension fund ; and as such it is made his duty to grant and pay the pensions, according to the terms of the acts of congress. After the passage of the law and resolution of March 3d, 1837, Mrs. Susan Decatur, the widow of Commodore Decatur, applied to Mahlon Dickerson, then secretary of the navy, to be allowed the half-pay to which she was entitled under the general law above mentioned ; and also the pension and arrearages of half-pay specially provided for her by the resolution passed on the same day. The secretary of the navy, it appears, doubted, whether she was entitled to both, and referred the matter to the attorneygeneral ; who gave it as his opinion, that Mrs. Decatur was not entitled to both, but that she might take under either, at her election. The secretary thereupon informed her of the opinion of the attorney-general, offering at the same time to pay her under the law, or the resolution, as she might prefer. Mrs. Decatur elected to receive under the law ; but it is admitted by the counsel on both sides, that she did not acquiesce in this decision, but protested against it ; and by consenting to receive the amount paid her, she did not mean to waive any right she might have to the residue. Some time afterwards, Mr. Dickerson retired from the office of secretary of the navy, and was succeeded by Mr. Paulding, the defendant in this writ of error ; and in the fall of 1838, Mrs. Decatur applied to him to revise the decision of his predecessor, and to allow her the pension provided by the resolution. The secretary declined doing so ; whereupon, Mrs. Decatur applied to the circuit court for Washington county, in the district of Columbia, for a mandamus to compel him to pay the amount she supposed to be due to her. A rule to show cause was granted by the court; and upon a return made by him, stating, among other things, the facts above mentioned, the court refused the application for a peremptory mandamus. It is this decision we are now called on to revise. In the case of Kendall n. United States, 12 Pet. 524, it was decided in this court, that the circuit court for Washington county, in the district of Columbia, has the power to issue a mandamus to an officer of the federal government, commanding him to do a ministerial act. The first question, therefore, to be considered *in this case is, whether the duty imposed upon the secretary of the navy, by the resolution in favor of Mrs. *-Decatur, was a mere ministerial act. The duty required by the resolution was to be performed by him, as the head of one of the executive departments of the government, in the ordinary discharge of his official duties. In general, such duties, whether imposed by act of congress, or by resolution, are not mere ministerial duties. The head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and discretion. He must exercise his judgment in expounding the laws and resolutions of congress, under which he is, from time to time, required to act. If he doubts, he has a right to call on the attorney-general to assist him with his counsel; and it would be difficult to imagine, why a legal adviser was provided by law for the heads of departments, as well as for the president, unless their duties were regarded as executive, in which judgment and discretion was to be exercised. 14 Pet.—28 433 ¿15 SUPREME COURT [Jan’/ Decatur v. Paulding. If a suit should come before this court, which involved the construction of any of these laws, the court certainly would not be bound to adopt the -construction given by the head of a department. And if they supposed his decision to be wrong, they would, of course, so pronounce their judgment. But their judgment upon the construction of a law must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of congress, in order to ascertain the rights of the parties in thecause before them. The court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment in any case where the law authorized him to exercise discretion or judgment. Nor can it, by mandamus, act directly upon the officer, and guide and control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties. The case before us illustrates these principles, and shows the difference * between executive duties and ministerial acts. The claim of Mrs. Decatur having been acted upon by his predecessor in office, the secretary was obliged to determine whether it was proper to revise that decision. If he had determined to revise it, he must have exercised his judgment upon the construction of the law and the resolution, and have made up his mind, whether she was entitled under one only, or under both. And if he determined that she was entitled under the resolution as well as the law, he must-then have again exercised his judgment, in deciding whether the half-pay allowed her was to be calculated by the pay proper, or the pay and emoluments of an officer of the commodore’s rank. And after all this was done, he must have inquired into the condition of the navy pension fund, and the claims upon it, in order to ascertain whether there was money enough to -pay all the demands upon it; and if not money enough, how it was to be apportioned among the parties entitled. A resolution of congress, requiring # - the exercise of so *much judgment and investigation, can, with no -• propriety, be said to command a mere minsterial act to be done by the secretary. The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them. Upon the very subject before us, the interposition of the courts might throw the pension fund, and the whole subject of pensions, into the greatest confusion and disorder. It is understood, from the secretary’s return to the mandamus, that in allowing the . half-pay, it has always been calculated by the pay proper; and that the rations or emoluments to which the officer was entitled, have never been brought into the calculation. Suppose, the court had deemed the act required by the resolution in question a fit subject for a mandamus, and, in expounding it, had determined, that the rations and emoluments of the officer were to be considered in calculating the half-pay ? We can readily imagine the confusion and disorder into which such a decision would throw the whole subject of pensions and half-pay ; which now forms so large a portion of the annual expenditure of the government, and is distributed among such a multitude of individuals. The doctrines which this court now hold in relation to the executive departments of the government, are the same that were distinctly announce 434 1840] OF THE UNITED STATES. 516 Decatur v, Paulding. in the case of Kendall v. United, States, 12 Pet. 524. In p. 610 of that opinion, the court say, “ We do not think the proceeding in this case interferes, in any respect whatever, with the rights or duties of the executive, or that it involves any conflict of powers between the executive and judicial departments of the government. The mandamus does not seek to direct or control the postmaster-general in the discharge of any official duty, partaking in any respect of an executive character ; but to enforce the performance of a mere ministerial act, which neither he nor the president had any authority to deny or control.” And in p. 614, the court still more strongly state the mere ministerial character of the act required to be done in that case, and distinguish it from official acts of the head of a department, where judgment and discretion are to be exercised. The court there say, “ he was simply required to give the credit; this was not an official act, in any other sense than being a transaction in the department where the books and accounts were kept: and was an official act in the same sense that an entry in the minutes of a court, pursuant to an order of the court, is an official act; there is no room for the exercise of any discretion, official or otherwise ; all that is shut out by the direct or positive command of the law, and the act required to be done is, in every just sense, a mere ministerial act.” We have referred to these passages in the opinion given by the court in-the case of Kendall n. United States, in order to show more clearly the distinction taken between a mere ministerial act, required to be done by the head of an executive department, and a *duty imposed upon him in his official character as the head of such department, in which judg- L ment and discretion are to be exercised. There was in that case a difference of opinion in the court, in relation to the power of the circuit court to issue the mandamus. But there was no difference of opinion respecting the act to be done. The court wrere unanimously of opinion, that in its character the act was merely ministerial. In the case before us, it is clearly otherwise ; the resolution in favor of Mrs. DeCatur imposed a duty on the secretary of the navy, which required the exercise of judgment and discretion ; and in such a case, the circuit court had no right, by mandamus, to control his judgment, and guide him in the exercise of a discretion which the law had confided to him. We are, therefore, of opinion, that the circuit court were not authorized by law to issue the mandamus, and committed no error in refusing it. And as we have no jurisdiction over the acts of the secretary in this respect, we forbear to express any opinion upon the construction of the resolution in question. The judgment of the circuit court, refusing to award a peremptory mandamus, must be affirmed. McLean, Justice.—The answer of the secretary of the navy to the rule to show cause why a mandamus should not issue, is conclusive ; and I entirely concur with the decision of the circuit court, in refusing the writ. 1 he relatrix having received a pension under the general law, is not entitled to receive one, on the same ground, under the special law. My impression is, that congress having acted upon her case and made a special provision, she cannot claim under the general law. An individual applies to congress for compensation for services rendered to the public, and a special provision is made for his relief. And if a law should be passed at the same 435 517 SUPREME COURT [Jan’y Decatur v. Paulding. session, making general provision for the payment of similar services, I should think that it could not be successfully contended, that such individual could claim under the general law. 'The merits of his claim having been considered and decided by congress, he can only claim under the special provision made for him. But in the present case, the claimant having received, under the general law, as large, if not a larger benefaction, than was given under the special law, her right under the latter is extinguished. I differ from a majority of the judges, who hold, that the construction of this resolution, giving to the relatrix a pension, is a duty, in the discharge of which, an executive discretion may be exercised. The law is directory _ and imperative, and admits of the exercise of no discretion, on the part of the secretary. The amount of the half-pay pension given in the resolution, is fixed by law ; and is, therefore, certain. I am authorized to say, that my brother Story agrees with this view of the case. *Baldwin, Justice.—I concur with the court in not interfering -with the proceeding of the circuit court, refusing the mandamus prayed for by the relator, on the ground that she is not entitled to the benefits of the general pension law of the 3d March 1837, and of the special resolution passed on the same day in her favor. My opinion is not founded on any special proceedings in the passage of the law and resolution, which . have been referred to from the journals of the two houses, but from the intention of congress, apparent in the provisions of the two acts, not to give cumulative pensions, and the general principle of law, that where provision is expressly made by law for a particular case, it does not come within the general provisions of another law, which may embrace it by its general terms. 4 Story 2542, 2556. Had it been the intention to give both, the presumption i$> it w’ould have been so declared ; and the nature of the pensions, one being for life, and the other for five years and arrearages, shows the intention to be contrary, and to give her the election which she should claim ; she has yet that election, as it appears from the return to the rule, and the affidavits in the case, that the receipt of the pension under the general law, was, under such circumstances, no waiver of the pension specially given to her, should she now elect to take it, in preference to the general provision under the contemporary law. But I cannot concur in opinion with the court, on the grounds on which they affirm the judgment, for two reasons : 1. That the circuit court had jurisdiction of the case ; and 2. That this court had not jurisdiction : and in order to ascertain whether the circuit court had jurisdiction, it is necessary to ascertain what is jurisdiction, as contradistinguished from its exercise ; for we all agree, that if the jurisdiction exists, there was no error in refusing the mandamus prayed for. “ The power to hear and determine a cause is jurisdiction ; it is 1 coram judice' whenever a case is presented which brings this power into action ; if the petitioner states such a case in his petition that, on a demurrer, the court would render judgment in his favor, it is an undoubted case of jurisdiction ; whether on an answer denying and putting in issue the allegations of the petition, the petitioner makes out his case, is the exercise of jurisdiction, conferred by the filing of a peti-tion, containing all the requisites, and m the manner prescribed by law. 436 1810] OF THE UNITED STATES. 518 Decatur v. Paulding. 6 Pet. 709. The objection to jurisdiction “must be considered and decided, before any court can move one farther step in the cause ; as any movement is necessarily the exercise of jurisdiction. It is the power to hear and determine the subject-matter in controversy between parties to the suit, to adjudicate, or to exercise any judicial power over them ; the question is, whether on a case before a court, their action is judicial or extra-judicial, with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction ; what shall be adjudged or decreed between the parties, and what is the right of the case, is judicial action by hearing and determining it.” 12 Pet. 718. If the court can act on any one subject of the petition, any matter “ on which the plaintiff asks its interposition, it must be retained ; so that the true inquiry is, not as to the extent, but the existence of any jurisdiction” (Ibid. 732); if any case is made out for its exercise (13 Pet. 162); if any relief can be given, we must proceed. 8 Pet. 536 ;• 10 Ibid. 228. “ Where a court has jurisdiction, it has a right to decide every question which occurs in the cause ; and whether its decision be correct or otherwise, its judgment, until reversed, is binding in every other court. But if it act without authority, its judgments and orders are nullities ; they constitute no justification, and all persons concerned in executing such judgments or sentences are considered in law as trespassers.” 1 Pet. 340 ; s. p. 2 Ibid. 163-9 ; 3 Ibid. 203. When a court of general civil jurisdiction gives judgment for a debt, or confirms an act directed to be done, neither the existence of the debt, nor validity of the act done, can be afterwards questioned, unless on appeal or writ of error ; their power to act upon the subject, to judge whether the debt is due or not, is a question always open, collaterally; but if they can act upon it judicially their errors, however apparent, their proceedings, inverso ordine^ or contrary to law, have no effect on their jurisdiction, or the validity of its exercise, till an appellate power shall reverse them. 10 Pet. 472-6 ; s. p. 2 Ibid. 167, 169. If the judicial function has been exercised by lawful authority, the court has jurisdiction ; otherwise their acts are coram non judice. Ibid. 474. The judgment of a competent court, “ withdrawn by law from the revision of this,” is a sufficient cause to detain a prisoner ; we cannot “ look beyond the judgment, and re-examine the charges on which it was rendered.” The judgment of a court of record, whose jurisdiction is final, is as conclusive on all the world as the judgment of this court wrould be. It is as conclusive on this court, as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it.” 3 Pet. 202-3 ; s. p. 7 Wheat. 42-45. Ihe circuit court for the district of Columbia is a court of record, having general jurisdiction over criminal cases. An offence cognisable in any court, is cognisable in that. If the offence be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation wThich the judgment of any tribunal can have. To determine whether the offence charged in the indictment be legally punishable or not, is among the most unquestionable of its powers and duties. The decision of the question is the exercise of jurisdiction, whether the judgment be for or against the prisoner, the judgment is equally binding in the one case, as in the other ; and must remain in full force, unless reversed regularly by a superior court, capable of reversing it. If this judgment be 437 518 a SUPREME COURT [Jan’y Decatur v. Paulding. obligatory, no court can look behind it. If it be a nullity, the officer who obeys it is guilty of false imprisonment.” Ibid. 203-9, passim. These principles draw the line between jurisdiction, and its exercise, so clearly, as to supersede the necessity of my further inquiry what they are respectively ; leaving no open question,, except their application to this case, which is an application, or motion for a mandamus to the secretary of the navy, to compel him to pay to the relator, or to issue his warrant for the pensions claimed by her, under the act and resolution of congress of the 3d March 1837. The first proceeding in the circuit court was on a petition and affidavit in the proper form, praying for a rule to show cause why a mandamus should not issue; to which a return having been made; it was adjudged to be sufficient, and the motion for the mandamus was refused to be granted. Did, then, the petition, affidavit, &c., present a case for the exercise of the judicial power of the circuit court, or was it a matter coram non judice, is the question ? for if they could inquire into it, as judges, they had power to grant the rule, however erroneously, illegally or even oppressively, they might act in doing it. lu that stage of the cause, the proceeding was on the case as made out by the relator, which might justify the rule; though on the return of the respondent, there might be conclusive reasons for proceeding no further; but as the question of jurisdiction is on the first step, all questions which follow it are matters of discretion in its exercise, so that the only inquiry is, whether the case is “of judicial cognisance.” 12 Pet. 623. In ascertaining the jurisdiction of the circuit court of this district, I shall confine myself to the opinion of this court in Kendall n. United States, in which it was decided, that the case was proper for a mandamus, and that that court had power to issue it. After a review of former decisions, they proceed : “ The result of these cases clearly is, that the authority to issue the writ of mandamus to an officer of the United States, cammanding hinl to perform a specific act required by a law of the United States, is within the scope of the judicial powers of the United States, under the constitution.” 12 Pet. 618. “Congress has the entire control of the district, for every purpose of government; and it is reasonable to suppose, that in organizing a judicial department here, all judicial power necessary for the purposes of government would be vested in the courts of justice. The circuit court here, is the highest court of original jurisdiction ; and if the power to issue a mandamus in a case like the present exists in any court, it is vested in that court.” Ibid. 619. “ There can be no doubt, but that in the state of Maryland a writ of mandamus might be issued to an executive officer, commanding him to perform a ministerial act required of him by law ; and if it would lie in that state, there can be no good reason why it should not lie in this district, in analogous cases.” Ibid. 621. The court then decided, that the circuit court of the district has the power to issue a mandamus, under the first, third and fifth sections of the 27th February 1801 (Ibid. 622), and in applying the law to the case before them, say, “ there was no want of jurisdiction, then, as to the person ; and as to the subject-matter of jurisdiction, it extends, according to the language of the act of congress, to all cases in law or equity. This, of course, means cases of judicial cognisance, mat proceedings on an application to a court of justice for a mandamus, are judicial proceedings, cannot admit of a doubt; and that this is a case in law 438 1840] OF THE UNITED STATES. 518 b Decatur v. Paulding. is equally clear.” Ibid. 628-4. The court then construe the third section of the act of the 27th February 1801 (2 U. S. St. 105), “as if the 11th section of the act of 13th February 1801 has been incorporated into it,” by ■which this section declares, “ that the circuit courts shall have cognisance of all cases in law or equity, arising under the constitution and laws of the United States, and treaties made, or which shall be made, under their authority ; which are the very words of the constitution, and which is, of course, a delegation of the whole judicial power, in cases arising under the constitution, laws, &c. ; which meets and supplies the precise want of delegation of power, which prevented the exercise of jurisdiction, in the case of McIntire v. Wood, and McClung v. Silliman and must, on the principles which governed the decision of the court in those cases, be sufficient to vest the power in the circuit court of this district.” 12 Pet. 626. Its judgment, awarding a peremptory mandamus against the postmaster-general, was accordingly affirmed. See 6 Wheat. 600. As the authority of that case has been recognised in the opinion of the •court delivered in this, it must be considered as settled, that the circuit court of this district, having the cognisance of all cases in law or equity, and being a court of general jurisdiction, is invested, with the whole judicial power of the constitution, in relation to writs of mandamus ; which is jurisdiction, if judicial cognisance of the person, the subject-matter, and the power to hear and determine, is jurisdiction ; and of consequence, that court has a right to decide every question which arises in the cause, when their first step is judicial, under the authority of law. 1 Pet. 340. It is admitted, that if the law had required the secretary of the navy to do a ministerial act, the jurisdiction of that court would be unquestionable ; not only to grant the rule to show cause, to issue the mandamus, but enforce it by ultimate process, if no sufficient cause is shown to the contrary in the return : which appears to me to be also an admission, that that court may and must judicially inquire whether the act enjoined by law and refused to be performed, is ministerial, •executive or discretionary, in its nature. It is of the essence of the jurisdiction of any and every court of record, which is authorized to decide on any class of cases ; to inquire whether, in the one before them, it is of that class ; whether it is proper for the exercise of their power ; and how it shall be exercised ; otherwise, its action is abortive, and its proceeding by the most solemn consideration is a nullity, if their jurisdiction is to be tested by the judgment which they shall render. If a decision in this case, that a mandamus shall not issue, is not a nullity, a contrary one cannot be; for such a decision is the result of a judicial inquiry, which the law authorizes to be made, whether the rule shall be granted, and the proceedings be followed up to consummation, or not: the law authorizes this inquiry into the facts of the case, and the judgment of the court puts an end to the “inquiry concerning the fact, by deciding it.” To determine whether the facts of the case are legally sufficient to award the process of the court, “ is among the most unquestionable of its powers and duties.” 3 Pet. 203. The decision of these questions is the exercise of jurisdiction, whatever judgment may be given ; and if the principles laid down in the case of Kendall, are law in this, the result is irresistible, that the court which can decide the facts and law, on which the granting or refusing a mandamus depends, has jurisdiction to hear, determine and render a 439 518 c SUPREME COURT [Jan'/ Decatur v. Paulding. judgment on the application ; which is conclusive till reversed. When thia court has most solemnly adjudged, that the authority to issue a mandamus “is within the scope of the judicial power of the United States, under the constitution that if it exists in any court, it is vested in the circuit court, of this district; and that the power in that court to exercise this jurisdiction, “results irresistibly” from the act of 1801 ; I am wholly unable to reconcile the conclusion formed in this case, with the principles and premises established in that; or to view the two cases in connection, on this point, without the conviction, that they are entirely repugnant, as well in principle as in their consequences. It is the settled law of this court, that it cannot issue a mandamus to a public officer, in virtue of its original jurisdiction (1 Cranch 174, &c.; 12 Pet. 621); that this circuit court, by its original, general jurisdiction, has been invested with this power ; that it exists in no other court; is within the scope of the judicial power of the United States ; and consequently, exclusively within the judicial cognisance of thatt court. An award of a peremptory mandamus to the head of one executive department, has been affirmed as an act within the jurisdiction of the court, and is a case proper for its exercise ; because the thing commanded to be done was ministerial in its nature. 12 Pet. 618, 626. A decision of the same court, refusing &man-damus to another head of an executive department, has also been affirmed, on the ground, that that court had no jurisdiction of the case, because the act which that officer was called on to perform, was of an executive, discretionary nature, and consequently, not ministerial; from which no other conclusions can result, than these : 1st. That the court, which has exclusive, original jurisdiction, to award a mandamus to a head of department, in any case, the only court in whom this power is invested, has neither jurisdiction, nor power to inquire judicially, whether the act which is the subject of the application for a mandamus, is of that nature as to justify the awarding of this writ, and of consequence, cannot decide whether it shall issue or not, for if it can so inquire and decide, that is necessarily the exercise of jurisdiction. 2d. That the only court, which has any original jurisdiction over the person and subject-matter, to which the application for the mandamus applies, is incompetent to hear and determine it on its merits; if this court, in its exercise of appellate power on a writ of error, shall be of opinion, that the circuit court ought not to award the mandamus in the case before them, on the sole ground that the act complained of was not ministerial, and that, therefore, the subject-matter was coram non judice, in that court. 3d. Whence it follows, that this court, in virtue of its appellate jurisdiction, can alone exercise the judicial power of the United States, to hear and determine a case on a mandamus, which turns on the question, whether the act sought to be commanded to be done, was of a ministerial nature, a proper subject for the writ, or of an executive or discretionary character, which made it improper to issue it. In other words, that the award of a mandamus, in a case where its award would be erroneous, was an usurpation of the judicial function, a nullity, had it been made in this case ; which conclusions can, in my opinion, be drawn only by overlooking the settled distinction between jurisdiction, and its erroneous exercise. 440 1840] OF THE UNITED STATES. 518 d Decatur v. Paulding. Though it matters not, for the purposes of this case, on what ground the judgment below is affirmed, a view of the consequences which must result from a denial of jurisdiction, under the opinion of this court, must lead te the most serious considerations ; for the want of original jurisdiction leaves a judgment rendered in a case coram non judice, as utterly null and void, when objected to in a collateral action, as it is after a reversal on error. Nay, more so, where the nullity arises from an intrinsic want of power, it requires not the action of an appellate court, to authorize all the world to-disregard it, to oppose, even by force, the officer who attempts to execute any order or judgment, which the court may make or render, and makes him liable to an action or indictment, if he actually executes it. Now, let it be supposed, that in enforcing a proceeding by mandamus, the marshal or the defendant is maimed ; an indictment is found ; it must be tried in the circuit court of this district ; they decide that they had jurisdiction in the mandamus, and power to issue the attachment; that the marshal had lawful authority to execute it by force, if resisted, convict, sentence, and imprison the defendant ; the hands of this court are paralysed by its own decisions. The sentence of the circuit court is final, absolute and conclusive of the facts, as well as the law ; it is withdrawn from any revision by this court, by habeas corpus (7 Wheat. 42 ; 2 Pet. 202, 209), by writ of error (3 Cranch 170-2, 174), or mandamus (3 Dall. 42 ; 13 Pet. 290, 408); the judgment “ is as conclusive on all the world, as the judgment of this court would be, as conclusive on this court at on other courts” (2 Pet. 203), though this court should be of opinion, that in law the marshal ought to have been convicted. Ibid. 20,9. An imprisonment under a judgment caij-not be unlawful, unless that judgment be an absolute nullity ; and it is not a nullity, if the court has general jurisdiction of the subject, although it should be erroneous.” Ibid. Let this principle be applied to a mandamus* according to the opinion in Kendall’s Case, it will be manifest, that the circuit court, having original, exclusive and general jurisdiction in this case, had, if that case remains authoritative, full authority to exercise it, .by any order, judgment or process, which they deemed to be called for, in the exercise of their discretion, on the exigencies of the cause. It does not come within any power of this court, by looking to consequences, to remove any restrictions on its appellate jurisdiction, or to exercise it, where it is not clearly given ; it may decide on the errors of inferior courts, in assuming, or exercising, their powers ; but if it is admitted, that they have jurisdiction over the person and subject-matter, and power to issue the process in question, the power of this court is restricted to a revision of the exercise of those powers. “ Whether such a restriction be not inconsistent with sound public policy, and does not materially impair the rights of other parties, as well as of the United States, is an inquiry deserving of the most serious , attention of the legislature. We have nothing to do, but to expound the law as we find it; the defects of the system must be remedied by another department of the government.” 3 Wheat. 309. “We are entirely satisfied to administer the law as we find it.” “ The argument of inconvenience has heen pressed upon us with great earnestness. But where the law is clear, this argument is of no avail; and it will probably be found, that there are also serious inconveniences on the other side. Wherever power is lodged, it may be abused; but this forms no solid objection to its exercise. Con- 441 518 e SUPREME COURT [Jan’y Decatur v. Paulding. fidence must be reposed somewhere ; and if it should be abused, it will be a public grievance, for which a remedy may be applied by the legislature, and is not to be devised by courts of justice.” 7 Wheat. 45. “ The question whether an offence was or was not committed, that is, whether the indictment did or did not show that an offence had been committed, was a question which that court was competent to decide.” 3 Pet. 206. So, on a motion for a mandamas, the question is, whether on the petition and affidavits on the part of the relator, a rule should be granted to show cause, or the writ be awarded, or refused.” “The cases are numerous, which decide that the judgments of courts of record having general jurisdiction of the subject, although erroneous, are binding, until reversed.” “ This acknowledged principle seems to us to settle .the question now before the court. The judgment of the circuit court in a criminal case, is of itself evidence of its own legality, and requires for its support no inspection of the indictments on which it is founded. The law trusts that court with the whole subject, and has not confided to this court the power of revising its decisions. We cannot usurp that power, by the instrumentality of the writ of habeas corpus. The judgment informs us that the commitment is legal, and ■with that information it is our duty to be satisfied.” Ibid. 207. “ Without looking into the indictment, &c., we are unanimously of opinion, that the judgment of a court of general criminal jurisdiction justifies this imprisonment,” &c. (though as this court had declared, “ that court has misconstrued the law, and has pronounced an offence to be punishable criminally, which, as we may think, is not so ”); and “ that the writ of habeas corpus ought not be awarded.” Ibid. 209. These acknowledged principles must apply to the judgment or order of the former court on a mandamus, as it has the same original, general and exclusive jurisdiction in those cases, as it has on criminal offences ; the judgment is, of course, equally evidence of its own legality, and conclusive till reversed ; the only difference between the two classes of cases, is dependent on the question, whether this court has power to revise a judgment on a mandamus, either by a writ of habeas corpus, or a writ of error. On the application for a habeas corpus, this court must see that there is a judgment of a court, having knowledged power to act in the case ; all inquiry thus ceases, as this court cannot look beyond the judgment; if they inspect the petition, &c., to ascertain whether the case presented is one proper for the exercise 'of original jurisdiction, they usurp it, by placing themselves in the seat of the circuit court, in exercising the precise function which has been delegated to that court, in the plenitude of judicial power. On the same ground, this court might revise the judgment of a circuit court held in a state, on an action, or indictment, by habeas corpus, and discharge the defendant from imprisonment; not because the court below had not power to hear, determine or render a judgment ; but because on the case, as it appeared by look- . ing beyond the judgment, it ought to have been for the defendant. , Such power has never been asserted or exercised in relation to any circuit court; it has been solemnly denied as to the court of this district, which has “larger powers, in cases of mandamus, than any other court.” 12 Pet. 615, 626. If r a writ of habeas corpus does not lie on its judgments in criminal, and other civil cases, it cannot lie on a judgment in a case of mandamus ; if the party cannot be discharged on habeas corpus, it is decisive of jurisdiction, and 442 1840] OF THE UNITED STATES. 518 g Decatur v. Paulding. , shows most clearly, that the only questions which can be revised relate to ! errors alleged on matters of law, apparent in the record and judgment. | That this is a case within the jurisdiction of the circuit court, I, therefore, ' cannot doubt, even admitting that had it been exercised, in any way interfering with the defendant, under the circumstances of this case, it would have been contrary to law, on the construction of the act and resolution of congress ; but that the action of that court can be declared to be extra- : judicial, on a matter within their acknowledged jurisdiction, merely because it related to an act which this court deem not to be ministerial, seems to me to be the subversion of principles which have been long established, and till now have been held as acknowledged ones in every past adjudication. In my opinion, there can be no subject on which this court should act with more caution, or adhere more steadily to the marked corner-trees of the law, than those which point to, and denote the line between the jurisdiction of inferior courts and its exercise ; indeed, there is no subject on which a departure from an established principle would more radically “ subvert our whole system of jurisprudence.” 9 Pet. 602. When it is considered, that on the adherence to this line, or a departure from it, every order, decree or judgment of the courts of the United States, on the'various subjects of their jurisdiction, is absolutely conclusive on the subject-matter decided, if no appeal or writ of error lies or is taken ; or an absolute nullity, binding neither on other courts, parties, nor the officers of those courts which render a judgment, who may refuse to execute, or become punishable in execut- j ing it; the inquiry into jurisdiction becomes a question of the highest import. If the past adjudications of this court had settled the law to be, that on the question whether a circuit court had jurisdiction of an action of ejectment or debt, this court could look through the judgment, to the declaration and evidence, when the parties and subject-matter were confessedly within their jurisdiction ; and make the mode in which it had been exercised by a judgment, for plaintiff or defendant, the test of the power to render any judgment at all; or if it had the right, on an indictment and sentence, to make the same inquiry, when the power of the court to try and punish was admitted ; I should feel bound to apply the same principles to a case of mandamus, in the circuit court of this district, with- ■ out feeling myself at liberty to look to the consequences. But finding the ! law to be settled otherwise, in all other cases, and being wholly unable to discover in the decisions of this court, any one rule or principle, which will except the case of a mandamus from the application of the cases cited ; I feel bound to examine the effect of testing the jurisdiction of a court on man- i damns, by a rule, which is repudiated in every other case, civil or criminal. The difference between an adherence to,, or an innovation upon, established principles of general application, on any supposed inconvenience, seems to me to be as visible, as practical, and as important, as the difference between a change of system of jurisprudence by legislative power, and the assumption of a power by a court, to make it w’hat it ought to have been made by a law. Being fully convinced, that on the authority of this court, the proposition, that if the circuit court can deliberate, by judicial power, on granting a rule to show cause why a mandamus should not issue ; all intermediate questions between the rule, and an attachment, are and can be nothing else 443 518 4 SUPREME COURT [Jan’y Decatur v. Paulding. but the exercise of jurisdiction, is fully supported, I have nothing to add on this point. It is also my opinion, that the acts to be performed by the secretary of the navy, in relation to the payment of a pension, either under the general laws, or the special resolution in favor of the relator, if, by their fair construction, she was entitled to the extent of her claim, are of a purely ministerial nature, according to the decisions of this court. If the right of the relator was in all other respects clear, except so far as they depended on the construction of the acts of congress, the case was of judicial cognisance only ; the duty of a secretary is not judicial ; it is not his province to construe laws, which enjoin on him the performance of definite acts, differently from what the courts have done, or may do. Where the law directs him to act, he must act according to law, on all matters where his duty is prescribed, so as to restrain his discretion ; as the commissioner of the navy pension fund, he decides whether the applicant comes within the law, on the evidence adduced before him ; but when he has decided that a pension is due, or when the law declares that a person named is entitled to one, and prescribes the amount, he has no longer a discretion to withhold it. The ascertainment of the date at which the pension commenced, its amount and duration, are ministerial acts on which discretion is excluded, for its exercise cannot alter either; if the payment is a right of the applicant, the law makes it a duty to pay, or give a warrant for payment by the officer who holds the fund. Thus, under the general act, it is enacted, “ that if any officer,’* &c., “ have died,” &c., “ leaving a widow,” such widow shall be entitled to receive,” &c. (5 U. S. Stat. 180), or resolved, “that the widow of the late S. D. be paid from the navy pension fund a pension,” &c. (Ibid. 199), the command of the law is unqualified in both cases ; if the applicant comes within the description, the officer whose duty it is to pay, or direct the payment, has no discretion to do it or not, after being satisfied of the right of the applicant, as one of the beneficiaries of the law. The name must be inscribed on the pension roll, and thenceforth, the payment is but the execution of a specific defined duty, prescribed by law, of the same nature as entering an ascertained credit, on the account of a contractor in the post-office department (12 Pet. 614), the issuing a patent, after all the requisites of the law have been complied with (6 Wheat. 600), or the payment of a liquidated claim, under a special act of congress directing it to be done. In all these cases, the act to be done is purely ministerial; all the discretion to be exercised has been exhausted ; the duty is positive, by the command of the law’, which no authority can supersede or grant a dispensation from its performance ; nor while KendalVs Case is recognised as authority, can the nature of an executive office exempt the incumbent from the supervisory pow7er a competent court, in a case otherwise proper for its exercise. 12 Pet. 610-15. The judges of the courts of the United States are not clothed w’ith any immunity or exemption from this power ; it is applied to them ; and courts of record, of general jurisdiction, to the extent of the judicial power of the United States, by this court, and on the same principles, as to an executive officer, by the court of this district, not where the law confides a discretion to do or withhold a particular act, but vrhere it requires it to be done, as a ministerial duty. As, where the law required, that after the court 444 1840] OF THE UNITED STATES. 518 i Decatur v. Paulding. had rendered a judgment, it should be signed by the judge, and the judge died after the rendition of the judgment, but without affixing his signature to the record ; his successor refused to sign it, because the judgment had been given by his predecessor, and this court held : That the judge in office had a discretion to set aside the judgment by granting a new trial; but if he did not exercise his discretion by doing it as a judicial act, he was bound । to sign the judgment as a mere ministerial act required by law ; in order i to give one party a right to execution, and the other a right of appeal or writ of error. In the opinion of this court, there is the following sentence, which is too appropriate to one ground of objection to the jurisdiction, and action of the circuit court, in this case, to be omitted ; it is this : “ But the district judge is mistaken in supposing that no one but the judge who renders the judgment can grant a new trial. He, as the successor of his * predecessor, can exercise the same powers, and has a right to act in every case that remains undecided on the docket, as fully as his predecessor could have done. The court remains the same, and the change of the incumbent cannot, and ought not, in any respect, to injure the rights of the litigant -parties.” A peremptory mandamus was awarded. 8 Pet. 303-4. In this case, the change of officers who had the disbursement of the pension fund, can have no effect on the rights of the relator ; a refusal by the predecessor -of the present incumbent, is ho legal cause for his refusal to do the act required, had it been enjoined by law ; it can be considered only as a repeated refusal of successive applications, having the same effect as if made to himself to perform the same ministerial act, which it would have been the duty of either to perform, if the right claimed had existed, but as it did not exist, the refusal was justifiable. The remaining point in this case is, whether a writ of error lies from this, to the circuit court of this district to remove and revise the proceeding on mandamus ; which I shall not examine in detail, as my opinion in Holmes v. Jennison, on the same question in the kindred case of habeas corpus, is given at length. If this question remained as unembarrassed by the authority of this court, as it was in the case of Holmes, I should have as little doubt in this, as I had in that case ; but as this court asserted their power to issue the writ of error in the case in 7 Wheat. 534, and acted on _ it in 12 Pet. 608-26 ; the question can no longer be considered exclusively on the principles of the common law, the terms of the judiciary act, or analogous decisions of this court. Yes as. the case in 7 Wheaton did not -call for any action of this court, as the argument is not set out, nor any authority quoted in favor of the writ of error, and the court confined -themselves to a mere declaration that it would lie, and in the case in 12 Peters, this question was argued only on one side, and entirely unnoticed -by the court in their opinion, it cannot be considered as conclusively settled. That the great questions of jurisdiction, which arise in this court, in -cases on error under the 22d or 25th sections of the judiciary act, should ' be considered with the greatest deliberation, and remain open till all doubts _ are removed, especially, in cases where the common law is decisive against -the jurisdiction, no one will deny. When the court express an opinion, or act in a case involving their jurisdiction, in which there is either no argument, a partial one, or ex parte only ; it ought not, and cannot have the 445 518 k SUPREME COURT [Jan’y Decatur v. Paulding. same weight as judicial authority, as when the whole subject is presented to the court ; considered as it may be elsewhere than in open court, it is necessarily in the absence of counsel, and of any but a very limited reference to adjudged cases. In other times, this court often declared, that a point decided without argument remained open for consideration (3 Cranch 172 ; 6 Ibid. 317), till it was directly made ; even on a question of jurisdiction, which was for the first time made, thirty-four years after the court had been in the constant exercise of that which was objected to. In Bud n. Van Ness, it was objected, that the amount of a judgment in a state court, was not sufficient to ground an appeal or writ of error, this court say : “ This is a new question ; thirty-four years has this court been adjudicating under the 25th section, &c. ; and familiarly known to have passed in judgment upon cases of very small amount, without ever having its attention drawn to the construction, &c., now contended for. Nevertheless, if the received construction has been erroneously adopted, without examination, it is not too late to correct it now. But we think that is not necessary to sustain our practice upon contemporaneous, and long-protracted expositions, that as well the words of the two sections under which we exercise appellate jurisdiction, as the reasons and policy on which those clauses were enacted, will sustain the received distinction between the cases to which those sections extend.” 8 Wheat. 321-2. As no past opinion of this court has taken this course, in considering this question, I hold it to be as open now, as it was in the case just quoted ; and shall pursue that which the court then took. A mandamus is directed to a judge, to an inferior court, or an officer, commanding the performance of a specific act; but it lies in neither case, on any matter of discretion, or to coerce the judgment as to the manner of acting, where the law permits the doing or refusing to do the act ; though it does lie to enforce the performance of a mere ministerial act, by an executive officer (12 Pet. 610), a judge or court (8 Pet. 302), which they have no “ authority to deny or control.” Ibjd. The mandamus acts upon no right of the respondent, of person or property, where he has no interest in the subject-matter, as in the case now before us. • “ The real parties to the dispute are the relator and the United States,” who cannot be sued, or the claim be in any way enforced against them, without their consent through an act of congress ; but when they consent to submit the whole subject of pensions, to an officer of their own, and impose on him a positive duty to pay, he is the mere instrument to. execute the law. See 12 Pet. 611-12.. The command of the writ of mandamus, is no “ final judgment in a cause before a court, “ on which a writ of error may issue for its reversal (8 Pet. 303) ; it is one of “ those intermediate proceedings, which take place between the institution and trial of a suit ; obedience may be refused, if it be shown that there are matters in the cause, which are within the discretion of the court below, which justifiy the refusal (8 Pet. 589-90) ; and what is conclusive on this point, is, that a writ of error may be dismissed by this court, for the want of jurisdiction, as was done in 12 Pet. 140, in the the same case, in which a peremptory mandamus had been awarded four years before (8 Pet. 304), to sign a judgment previously rendered ; an in which this court refused a second mandamus, to render a final judgment. 9 Pet. 602, 605. All that this court can do, is to order the court below to proceed to judgment; but it will not direct in what manner its discretion 446 1840] OF THE UNITED STATES. 518 ? Decatur v. Paulding. shall be exercised (8 Pet. 304 ; 9 Ibid. 602-3) ; it compels them to “ proceed to a final judgment, in order that we may exercise the jurisdiction of review given by the law ” (12 Pet 622), but only for that purpose. Ibid. A mandamus never issues to an executive officer to control his discretion or judgment, where the law gives him any right to deliberate, it is to perform ministerial acts which the law has enjoined on him ; the mandamus is a summary order to enforce the duty, by supplyinga remedy for a denial of an existing right, where, for the want of a specific one, there would otherwise ba a failure of justice. 12 Pet. 620. The writ of mandamus, like the writ of habeas corpus, is a writ of right; but the proceeding upon it is matter of discretion, in no wise partaking of the character of a final judgment, its effect, or an aw’ard in the nature of a final judgment, which can be revised on error; so the law has been finally settled in England by the house of lords, as declared and recognised by this court in 6 Pet. 657 ; and so it must be considered here, unless a final judgment means one thing in the judiciary act, and another and different thing at common law, which distinction is negatived in the same case. The writ of mandamus, as known to the common law, is well defined in 1 Cranch 171 ; 5 Pet. 192, and 12 Ibid. 620 ; it is a prerogative writ, which is issued from the court of king’s bench, in virtue of its general supervising power over all inferior tribunals and officers, to compel them to what that court has determined, or supposes, to be consonant to right and justice, where there is no other specific remedy prescribed. Yet this court have held, that the mandatory writ in the register, which issues from th$ officina brevium, under the seal of the court of chancery, performs the same office, without the interference of the court of king’s bench. 5 Pet. 192-4. If this be so, then there is a specific remedy by an appropriate writ in the register, grantable on motion in chancery; there is a concurrent jurisdiction in the two courts ; and of consequence, it would seem not to be a prerogative writ, even by the common law, when directed to an inferior court ; but a writ in the nature of a mandamus described in 12 Pet. 622. In 5 Pet. 193, a mandamus to a public officer, is declared to be the exercise of original jurisdiction, but appellate when directed to a court; the power of this court to issue this writ is asserted, under the 13th section of the judiciary act, to be the same which is exercised by the chancellor, in England, and by the supreme courts of the states, in virtue of their “ general superintendence of inferior tribunals,” and the court use this language : “ The judiciary act confers this power expressly on this court; no other tribunal exists by which it can be exercised.” Ibid. 194. Iti 12 Pet. 621, “the power to issue this writ, and the purposes for which it may be issued in the courts of the United States, other than this district, is asserted under the 14th section, as a power common to this and the circuit courts in the states. But this power is not exercised, as in England, by the king’s bench, as having general supervising power over inferior courts, but only for the purpose of bringing the case to a final judgment or decree, so that it may be reviewed. Ibid. 622. So far, then, as respects a mandamus from this to a circuit court, or from a circuit to a district court, it is clear, that no decision upon such writ is a final judgment revisable in error or on appeal, as well on these principles, as. the following language of this court in 9 Pet. 602, in an unanimous opinion delivered by the late chief justice, on a motion for a mandamus: 447 518 m SUPREME COURT [Jan’y Decatur v. Paulding. “ This court is asked to decide, that the merits of the case are with the plaintiffs ; and to command the district court to render judgment in their favor. It is an attempt to introduce the supervising power of this court into a cause, while depending in an inferior court, and prematurely to decide it. In addition to this obvious unfitness of such a proceeding, its direct repugnance to the spirit and letter of our whole judicial system cannot escape notice. The supreme court, in the exercise of its ordinary appellate jurisdiction, can take cognisance of no case, until a final judgment or decree shall have been rendered in the inferior court. Though the merits of the cause may have been substantially decided, while anything, though merely formal, remains to be done, this court cannot pass upon the subject. If, from any intermediate stage in the proceeding, an appeal might be taken to the supreme court, the appeal might be repeated, to the great oppression of the parties So, if this court might interpose in the progress of a cause, by way of mandamus, and order a judgment or decree ; a writ of error may be brought to the judgment, or an appeal from the decree, and a judgment or decree entered in pursuance of a mandamus, might be afterwards reversed. Such a procedure would subvert our whole system of jurisprudence.” Taking it, then, as settled, that on a proceeding by a mandamus to an inferior court, no writ of error lies, I now proceed to inquire, whether it will lie, when the mandamus is directed to an officer to perform a merely ministerial act, by a court having original jurisdiction to award the writ, as the court of this district, is admitted to possess by the acts of February 1801, referred to in 12 Pet. 619, 622, 624. As the purposes of this case do not require it, I shall not examine into the apparent discrepancy ‘between the opinion in 5 Peters, and 12 Ibid., on the nature or office of the writ of mandamus, whether they depend on the 13th or 14th section of the judiciary act ; but confine myself to the view which the court take of the subject, under the act which gives jurisdiction to the court of this district to award it, which is this : “ That proceedings and an application to a court of justice for a mandamus, are judicial proceedings, cannot admit of a doubt; and that this is a case in law, is equally clear. It is the prosecution of a suit, to enforce a right secured by a special act of congress, requiring of the postmaster-general the performance of a precise, definite and specific act, plainly enjoined by the law. It cannot be denied, but that congress had the power to command that act to be done ; and the power to enforce the performance •of the act must rest somewhere, or it will present a case which has often been said to involve a monstrous absurdity in a well-organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist ; and if the remedy cannot be applied by the circuit court of this district, it exists nowhere. But by the express terms of this act, the jurisdiction of this circuit extends to all cases in law, &c. No more geneia language could have been used ; an attempt at- specification would have weakened the force and extent of the general words, all cases. Here, then, is the delegation to this circuit court, of the whole judicial power in t rs district, and in the very words of the constitution, which declares that t e judicial power shall extend to all cases in law and equity arising un ei the laws of the United States,” &c. 12 Pet. 623—4. No one has ever denied, that congress has power, by the constitution, o give authority to the courts of the United States, to issue a man amus 448 1840] OE THE UNITED STATES. 518 n Decatur v. Paulding. to an inferior court, or a public officer ; the only objection to its exercise by this court, on the writ directed to the secretary of state was, that it was by original jurisdiction, which could not be granted in such case. 1 Cranch 175. But this objection cannot avail, when applied to a court of general, original and exclusive jurisdiction, in the "whole range of the judicial power of the constitution ; which necessarily embraces prerogative, among all other writs known to the common law, or the laws of the states which ceded this district to the United States, with powers of exclusive legislation in and over it. Such is the jurisdiction of the circuit court of this district, as declared in the above extract from the opinion in KendaWs Case, which contains in substance the common law definition of the prerogative writ of mandamus ; whether it is directed to a court or an officer, it equally comes within the -definition, being adapted to the exigency of the case, so as to give an adequate remedy whenever there is an existing right which can be enforced by no other process, which is the very office of the common-law prerogative writ. There is no principle of law, there is no decision of this court, nor any provision of any act of congress, wffiich discriminates a mandamus to a court, from one to an officer, either in its nature, the action of the court upon it, or the effect thereof. It is but an order to do an act, ministerial in its nature, enjoined by law, in a case which involves no discretion, nor leaves any alternative ; such an order is never made, where a judicial act remains to be done by a court, or an executive act to be performed by an office^, which the law submits to the exercise of his own judgment on the matter. Thus, in 8 Pet. 304, the order wras made to sign a judgment previously rendered, because the law commanded it ; but in the same case, the court refused to order a judgment to be rendered for the plaintiff. 9 Pet. 602. So, in ICendalVs Case, the mandamus was properly issued, for the reasons assigned, the act commanded was purely ministerial ; it was refused in this oase, because some discretion was involved, which will be found to be thè turning point in all the cases at common law, or in this court, without a dictum in either, which asserts the doctrine, that the order of the court partakes any more of the character or effect of a final judgment, in the one class of cases than the other. Each is the prosecution of a suit to enforce a right, secured by a special, or the general, law which governs the case ; the proceeding is the same in both, from the presentation of the petition till the order of the court is made ; and when made, the order relates to a ministerial act, in which neither the court nor the officer has any interest, unless in cases where the mandamus restores the relator to an office, of which he has been ousted by an illegal act. But in such cases, the mandamus affects only the possession (See 12 Pet. 620); the right to the office remains open on a quo warranto. In the present case, the writ is prayed for in order to obtain the payment of a sum of money, to which the respondent has no claim ; the act required of him is to sign such warrant or other order on the officer who has the custody of the pension fund, as. will enable the relator to receive what congress have appropriated to her use. Whether such appropriation has been made, depends on the construction of the acts of congress ; which must be decided by the court, and not the secretary ; if the right to the sum claimed exists by the law, its payment is as much a ministerial act in signing the Warrant, as signing a judgment already rendered ; both being an execution 14 Pet.—29 449 518 o SUPREME COURT [Jan’y Decatur v. Paulding. of the command of the law; there is no principle which excludes a writ of error in one case, that can justify it in the other. The only question in this case is, whether congress has directed the money to be paid, as it was in KendalVs Case, whether the credit should be given ; when that is settled, the mandamus only enforces the right of the relator to receive that which congress had declared belonged to her ; the awarding the writ is ay a summary order, made on affidavit and motion, without a jury, or the forms of the common law being pursued, as in suits commenced by original writs. Whether the subject-matter of the order relates to the payment of money,, or any other act of a ministerial nature, the nature or character of the order does not become that of a final judgment, revisable by a writ of error, the common law does not authorize any appellate proceedings on a prerogative writ; the judiciary act makes no provision for it; and nothing but future legislation can, in my opinion, convert a summary order on a motion or rule, into a final judgment, so as to make it cognisable in error. The reasoning of the court, in 9 Pet. 602, is conclusive, that error does not lie to an order awarding a mandamus to a court. It is admitted, that it does not lie at common law in any case of mandamus (6 Pet. 657); for which one reason alone is sufficient to show the true policy of the law. That as this remedy was designed to be a speedy one, the party who had obtained it should not lose its benefit by being hung up by a writ of error (1 Str. 543, 8 Co. 127 6), or, in the language of this court, by the appeal being “ repeated to the great oppression of the parties ” (9 Pet. 602), by subjecting them to all the delay incident to an appeal, or writ of error ; which “ would subvert our whole system of jurisprudence” (Ibid.), if a summary order shall be deemed a final judgment or decree. The essence of a prerogative writ is in the promptitude of the remedy ; it is devised to create one, where none adequate existed ; and it is administered so as to meet the ends of justice in a summary manner. 12 Pet. 620. It is not for me to say, whether power to so act, ought to be subject to revision ; my inquiry is only, whether the law has made it so, by prescribing one rule for the case of its exercise on a court or judicial officer, and a different one for an executive or ministerial officer. The most solemn decisions of this court justify me in denying the existence of any revising power in the first classes of cases ; every reason and principle on which they are founded apply equally to the last classes; and where I find that the only cases in which the existence of such power is asserted or assumed, contain no reference to precedent authority, or reasons to support them, I cannot feel bound to consider the law to be so settled as to govern this case. Nor, in the course of the opinion now delivered by the court, does there seem to me to be such a train of reasoning, or reference to settled principles, as to overcome the weight of authority in the previous adjudications of this court. In referring to the case of Weston n. Charleston, in 2 Pet. 463, wherein it was held, that a writ of error would lie, under the 25th section, to the refusal of a state court to award a prohibition ; I think the court has added to the strength of their own opinion, but little, if anything, in principle or authority ; for no order of a court partakes less of the character of a final judgment in a suit, than an order awarding or refusing a prohibition. In one case, an inferior court is ordered not to proceed to a judgment, but to 450 1840] OF THE UNITED STATES. 518^ Decatur v. Paulding. surcease action in the cause ; in the other, it is left free to act ; but in either case, the only question is, whether the inferior court has jurisdiction ; if they have, it cannot be controlled in its exercise : if they have not, they can render no judgment; the action of the superior court must necessarily be confined to jurisdiction, and its revision by this court can extend no further. In the opinion in 2 Peters, no adjudged case at the common law, or in this court, is referred to ; its jurisdiction seems to be assumed more from the supposed necessity of its exercise, than from any principle of law, or provision in the judiciary act; and no argument was had on this point, till it was directed by the court, after an argument on the- merits at a preceding term ; for which reasons, I have been disposed rather to look to this case as a beacon, than to adopt it as a precedent. It has been, in my opinion unfortunate for this court, that the course of argument, in cases involving the momentous question of what are the proper subjects for the exercise of its appellate jurisdiction, has been so limited as it appears in the reports of its decisions on this subject. In tracing them back to the organization of the court, it will be found, that forty years had elapsed before there was a writ of error sustained on a prohibition ; more than thirty, before it was asserted that it would lie on a mandamus ; fifty, before it was acted on ; and that this is the first case in which it has been held to lie on a habeas corpus. This affords, it is true, no conclusive argument that the power exists only by assumption, because it has been so long dormant; yot it affords the most powerful reasons for the most thorough consideration of a case, where its exercise is invoked for the first time, by a full research into the principles, the analogies, and the usages of law ; which define appellate power and its subjects, according to the common law applied to the judiciary act, which, by reference, adopts it as its basis. There is great danger of error in bringing any case within the 22d or 25th sections, which is either without precedent in the common law, or opposed to its settled principles, still more so, when both objections apply as they do in the case of a prohibition ; for it will be found very difficult to exercise, under the judiciary act, any appellate power which is repudiated by the principles, usages and adjudged cases of the common law. And if it should so happen, that even on the fullest consideration, a single case of this description is acted upon, too much caution cannot be used in most thoroughly examining another case, supposed to be analogous ; d fortiori^ where the first innovation was without argument, a partial or ex parte one, or one directed on second thought, after the merits of the case had been discussed. No safer course can be adopted than was taken in the case in 8 Wheat. 321-2, wherein the court would not sustain an unquestioned practice of thirty-four years, “ by contemporaneous and long-protracted exposition,” in the actual exercise of jurisdiction under the 25th section ; but justified it by a reference to “ the reasons and policy” developed in that and the 22d sections, in conferring their appellate power. Had this course been taken in this, and the case of Holmes n. Jennison, by investigating the grounds on which a writ of error had been sustained on a prohibition ; instead of assuming that position as impregnable, then holding that the appellate power to revise the proceedings on a mandamus was a consequence resulting from its exercise in a case of prohibition ; and that the 451 518 q SUPREME COURT [Jan’y Decatur v. Paulding. same power over a habeas corpus followed, as the conclusion from those premises, the final result would have been more satisfactory, if not entirely different. Where this chain will end no one can tell. In forming my opinion in this, and the case of Holmes, I have been fully convinced, that it is founded on principles too well established by the adjudged cases, books of authority, and the decisions of this court, to be shaken by the case of Weston v. Charleston, or those which are dependent upon it; believing that that case rests alone on its own unsupported authority. I cannot recognise it as a basis for this, or the case of Holmes. Nor can I feel bound to consider the point as settled, so as to exclude further consideration, by reversing the course now taken by the court; and looking through the cases of habeas corpus, and mandamus, to the case of prohibition on which they rest, bringing the exercise of appellate power of this court over that case, to the test of the common law, the judiciary act, and the decisions of this court, cited in this, and the opinion in Holmes',s Case, which have hitherto remained without notice, in argument or opinion, and consequently, not considered. When this course shall have been taken by the court, mine will conform to whatever conclusion may be adopted ; but while those cases referred to by me continue unnoticed, my judgment will be guided by them as authoritative ; and until they shall be reconsidered and overruled, I cannot but consider them to be more firmly rooted and planted in the law, more congenial to its principles, its policy, and the reasons on which it is founded, than any decisions which have been since made to the contrary. If the purposes of justice require a further expansion of our appellate power, it is the duty of congress to prescribe it, but while the law remains unchanged by legislative power, I cannot cease to deprecate the onward progress of jurisdiction, by step on step, from case to case, to which no limit seems assignable, so long as the emergency of a cause can be held to justify the assumed necessity for the exercise of that power, where it is not clearly within the provisions of the judiciary act. Catron, Justice.—Between the circuit court of this district, and the executive administration of the United States, there is an open contest for power. The court claims jurisdiction to coerce by mandamus, in all cases where an officer of the government of any grade refuses to perform a ministerial duty : and of necessity claims the right to determine, in every case, what is such duty ; or whether it is an executive duty, when the power to coerce performance is not claimed. Where the line of demarkation lies, the court reserves to itself the power to determine. Any sensible distinction applicable to all cases, it is impossible to lay down, as I think ; such are the refinements, and mere verbal distinctions, as to leave an almost unlimited discretion to the court. How easily the doctrine may be pushed and widened to any extent, this case furnishes an excellent illustration. The process of reasoning adopted by those who maintain the power to assume jurisdiction, is, that where a right exists by law to demand money of an officer, and he refuses to pay, the court can enforce the right by mandamus', and to ascertain the existence of the right, it is the duty of the court to construe the law : and if, by such construction, the right is found, and the refusal to pay ascertained to have been a mistake ; then the officer will be coerced to pay out the money, as a ministerial duty. In most cases (as in 452 1840] OF THE UNITED STATES. 518 r Decatur v. Paulding. this), the court will be called on to try a contest only fit for an action of assumpsit. First, it must ascertain the existence of the right, from complicated facts, and the construction of doubtful laws : this found, the duty follows ; it being a duty, it is for the court to say, whether it is clear ; if so, being an ascertained duty, and clear, then coercion, of course, would follow. That few cases of contested claims against the government would escape investigation, were these assumptions recognised, is free from doubt. The great question, then, standing in advance of all others in this cause, and the only one I feel myself authorized to examine is the broad one, whether the circuit court of the district of Columbia, can, by a writ of mandamus, force one of the secretaries of the great departments, contrary to the opinion and commands of the president of the United States, to pay money out of the treasury ? Mrs. Decatur claimed a double pension ; a single one was paid by the secretary of the navy ; she demanded the additional one, amounting to nearly $20,000 ; the secretary refused to pay it; she then memorialized the president, and he concurred with, and affirmed the decision of the secretary, that the claim »could not be allowed ; and from this final decision of the executive department of the nation, Mrs. Decatur appealed, in the form of a petition *for a mandamus, to the circuit p court of the district of Columbia, to reverse and annul the decision, *-made by the secretary, and sanctioned by the president. The court assumed jurisdiction, compelled the United States, through the secretary of the navy, to file a long answer ; and in a tedious law-suit, to defend the United States. That he did so successfully, is of little consequence ; the evil lies not in the loss of $18,600 to the government, but in the concession by this court, that the circuit court of the district has the power to sit in judgment on the secretary’s decision ; to reverse the same, at its pleasure, and to ordei' the money to be paid out of the treasury, contrary to his will, arid to the will of the president, and that of all those intrusted by the constitution and laws with the safe-keeping of the public moneys. Stripped of the slight disguise of legal forms, such is the case before us ; the conflict between the executive and judiciary departments could not well be more direct, or more dangerous. The idea that they are distinct, and their duties separate, is confounded, if the jurisdiction of the court below is sustained ; placing the executive power at its mercy, in case of all contested claims. Few can be more contested than the one before us ; if jurisdiction can be exercised in this instance, it is difficult to see, in what others it does not exist; to establish which, we .will briefly recapitulate the leading facts. On the 3d of March 1837, a resolution was passed by congress giving a pension of the half-pay of the late Captain Decatur, to the petitioner, his widow ; and on the same day, a bill passed, giving an equal pension to all the widows of naval officers and seamen, who had died in the service ; with this difference in the general law and the resolution, that by the former, the half-pay continued for life, and by the resolution only for five years, if the petitioner so long lived, and continued a widow. She claims by her petition, not only the half-monthly pay proper of a post-captain of the navy, but for daily rations, eight, at twenty-five cents each, amounting to one-half of $730 per annum ; and also interest on the sum withholden. These claims for back rations and interest are contrary to the construction given by the government to the navy pension acts, for more than forty years. To cover «453 519 SUPREME COURT [ Jan’y Decatur v. Paulding. a failure, should the court concur with the executive departments in rejecting these claims, the petition has a double aspect, in the form of a bill in equity ; first, praying for the whole sum of $18,597 ; or such part or portion thereof as the court may direct. It was first called on to decide whether the United States owed the petitioner anything ; secondly, how much ; and, thirdly, whether there was any money in the treasury belonging to the navy fund, out of which the claim could then be satisfied. The secretary answers, he had money enough of the fund at his control, when he made the answer, if the old construction was adhered to by the * , cour^ j but if he was adjudged to pay the petitioner *for rations and J interest, then all other widows and orphans provided for by the -various acts of congress, and entitled to half-pay out of the fund, would likewise be entitled to come in for half rations and interest; in which case, he would not have money to pay the claim, but that the fund would be greatly in arrear. A more complicated and difficult law-suit than is found in this cause, rarely comes before a court of justice ; and to be compelled to defend which, the secretary protests ; “because such jurisdiction in this -court would, if assumed, operate as such an inference with the discharge of the official duties of the undersigned, as to make it impossible for him to perform them as required and intended ; and would transfer to the said court the discharge of the said duties, and the whole management and disposition of the said fund ; and subject all applicants for pensions to the delay, expense and embarrassments of legal controversies as to their rights, and to a suspension of the provisions to which they might be entitled under the laws, till these controversies were judicially decided. Because such a jurisdiction in the circuit court would make the United States suable in that court; and subject the money of the United States, in the treasury of the United States, to be taken therefrom by the judgments of said court. Because, if the circuit court assumes the jurisdiction of compelling the secretary of the navy, or the head of any other department to revise and reverse the decisions that may have been made by their predecessors in office, these officers will necessarily be taken off from the discharge of their immediate and most urgent public duties, and made to apply their time and attention, and that of the clerks in the departments, in an endless review and reconsideration of antiquated claims and settled questions ; to the delay and hinderance of measures of vital importance to the national welfare and safety. Fox these and other reasons which he trusts will be obvious, on further consideration, to the court, he respectfully objects to the jurisdic-diction assumed in this case ; and will now proceed, under such protest, to show cause why the mandamus prayed for should not be issued.” He was, however, compelled to defend the suit, and defeated the claim upon its merits ; the discussion of which took up two days in this court. But the great question was decided below, that the court bad jurisdiction and power to order money to be paid out of the treasury of the United States, by a writ in the nature of an execution, running in the name of the United States, commanding the government to obey its own authority ; this prominent feature of the writ demanded, it is impossible to disguise. That no other federal circuit court in the Union has power to issue such a writ, was recognised as settled in the case Kendall v. United States, hy this court, in 1838. The power claimed is confined to this ten miles 454 1840] OF THE UNITED STATES. *521 Decatur v. Paulding. square. And what is the extent of the *power? To overrule the decisions of the five great departments, and of the president, extending to the payment of money, the delivery of commissions, and innumerable other matters involved in the complicate operations of this government, amounting each year to a hundred thousand separate transactions, to say the least: the validity of all debatable and contested claims are holden to be subjected to the ordeal, and, on their rejection, to the supervision of the circuit court of this district. Beyond doubt, this is the breadth of the assumption of jurisdiction put forth by the cause before us. The entertaining such a •cause is calculated to alarm all men who seriously think of the consequences. It is an invitation to all needy expectants, with pretensions of claim on the government, to seek this superior and controlling power (the circuit court of this district), and invoke its aid to force their hands into the treasury, contrary to the better judgment of the guardians of the public money. Thousands of claims exist, quite as fair on their face, and as simple in their details, as is this of Mrs. Decatur’s, that have been rejected. She has been allowed to appeal to the court, and been heard ; and so can all others. The assumption of power need not be pushed further, to let suitors enough into the court to consume the time and absorb the attention of the secretaries ; a principal business of theirs presently must be, to sit at the bar of the court to ward off its mandate, and keep its officers from forcing the money out of the public treasury, unless this court arrests the attempt: whether well or ill intended, is aside from the purpose ; the assumption and exercise -of the power, is equally poisonous in its consequences to the country ; it takes from the hands of those, the administration of public affairs, that the laws and the people of this nation have intrusted with them ; it brings to the bar of the court, the nation itself ; for it cannot be denied, that the United States government is the real defendant in this cause ; and that if it was cast, it would be forced (on this cause being remanded for execution) to open the treasury according to the dictates of the circuit court. The origin of the opinion that the public money could be'reached through such instrumentality is of recent date ; its history will be found in the case of Kendall v. United States. Money was not there asked in a direct form; and the court put the case upon the express ground, that the defendant “ was not called upon to furnish the means of paying any balance that was awarded against the department by the solicitor of the treasury. He was simply (say the court) required to give the creditand this was no more an official act, than the making of an entry by a clerk, by order of a court of justice ; it was, in every just sense, a mere ministerial act. 12 Pet. 614. Had it not been placed on this narrow ground, the decision could not have been made. That it falls short of this case, is admitted ; still, it was then Manifest, that the attempt to push the doctrine of ministerial duties further, so as to reach the money in the treasury, would follow ; the case has occurred, and must be met. *1 maintain, that the executive power of this .nation, headed by the „ president, and divided into departments in its administration of the L finances of the country, acts independently of the courts of justice, in paying the public creditors ; and that the decision of the secretary of the navy in this case, affirmed by the president, under the advice of the attorney- 455 522 SUPREME COURT [Jan’y Decatur v. Paulding. general, was final, on the laws as they stood ; and that the petitioner could only appeal to congress. And here it may be safely asked, whether the secretary and president, the latter elected by the nation and responsible to the people directly, and to their representatives in congress, each exercising an undoubtedly legitimate authority, were not the safest and best to decide on the rights of the nation, and of the petitioner seeking justice at its hands ? Is the country known, that submits the administration of its finances to the courts of justice, or permits them to control the operations of the treasury ? What guarantee have the people of this country that the circuit court of this district will, as faithfully perform the functions they have assumed, when dealing out the public money to satisfy rejected claims, as the heads of the departments ? The court is wholly irresponsible to the people for its acts— is unknown to them ; the judges hold appointments of an ordinary judicial character, and are accidentally exercising jurisdiction over the territory where the treasury and public officers are located. Furthermore, for nearly forty years, this fearful claim to power has neither been exerted, nor was it supposed to exist; but now that it is assumed, we are struck with the peculiar impropriety of the circuit court of this district becoming the front of opposition to the executive administration. Every government is deemed to be just to its citizens ; its executive officers, equally with the judges of the courts, are personally disinterested ; and why should not their decisions be as satisfactory and final. They must be final, in most instances, in the nature of things, and the necessities of the government. Money is appropriated for certain objects ; none can be drawn from the treasury save according to some law ; of the obligations, the departments must judge in a prompt manner ; they cannot await years of litigation to learn their duties, and the responsibilities of the governments from the courts ; the secretary of the navy could not subject to want and miseries the whole of the widows and orphans on the navy pension list, until he was informed by the court of this district, whether Mrs. Decatur should be paid her claim for rations and interest; he had to proceed, as for forty years and more his predecessors had done, and pay out upon the old construction ; nor could the government submit to its alteration, for the arrearages would have exhausted the fund, possibly for the next ten years, and left most of the widows and orphans dependent upon it for daily bread, in utter destitution. To permit an interference of the courts of justice with the accounts and affairs of the treasury, would soon sap its very foundations ; money would not be drawn out according to its own rules, * nor cou^ the secretary of the treasury ever inform *congress of the -I amount needed. Congress would, of necessity, be compelled to consult the court, not the secretary, when making appropriations. This case again furnishes the illustration : if the courts were to hold that Mrs. Decatur should be paid the $18,597, and that the true construction of the acts of congress was, that the widows and orphans pensioned on the navy fund should receive, in addition to the half-monthly pay, half rations, and interest on the arrearages ; then an addition of, possibly, a million to the fund woulo be required. For these and other reasons, the court below had no jurisdiction of the subject-matter ; and, of course, no authority to issue the mandamus to bring 456 1840] OF THE UNITED STATES. 523 United States v. Stone. the secretary before it : and therefore, I hold the suit must be dismissed, and the judgment affirmed. This cause same on to be heard, on the transcript of the record from the circuit court of the United States for the district of Columbia, holden in and for the county of Washington, and was argued by counsel: On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said circuit court in this cause be and the same is hereby affirmed. *United States v. Samuel B. Stone. [*524 Certificate of division. Action in the district court of the United States for the southern district of New York, by the United States, against the defendant, for a penalty, under the act of 1838, “ to provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steama verdict was rendered for the United States, and without a judgment on the verdict, the case was, by consent, removed to the circuit court of the United States. In the circuit court, certain questions were presented on the argument, and a statement was made of those questions, and they were certified, pro formd. at the request of the counsel for the parties, to the supreme court, for their decision; no difference of opinion was actually expressed by the judges of the circuit court. The judgment or other proceedings on the verdict ought to have been entered in the district court; it was altogether irregular to transfer the proceeding in that condition to the circuit court. The case was remanded to the circuit court. In some cases, where the point arising is one of importance, the judges of the circuit court have, sometimes, by consent, certified the point to the supreme court, as upon a division of opinion ; when in truth they both rather seriously doubted, than differed about it; they must be cases sanctioned by the judgment of one of the judges of the supreme court, in his circuit. Certificate of Division from the Circuit Court for the Southern District of New York. An action of debt was instituted in the district court for the southern district of New York, by the United States, against the defendant, as master of the steamboat New York, to recover the penalty of $300 imposed by the ninth section of the act of congress, of the 7th of July 1838, entitled, “ an act for the better security of the lives of passengers on board vessels propelled in whole or in part by steam.” The cause was tried in the district court, in June 1839. On the trial of the cause in the district court, exceptions were taken by the counsel for the defendant to the decision of the court, on questions of evidence which arose in the trial. Evidence was offered by the defendant, which was overruled by the court; to which decisions, the counsel for the defendant also excepted. The district judge charged the jury in favor of the plaintiffs, on a case agreed upon ; but for the more full consideration of the questions in the cause, he recommended, with the consent of the counsel on both sides, that the jury should find a verdict for the plaintiffs, subject to the opinion of the court, upon a case to be made ; with leave to either party to turn the same into a bill of exceptions or special verdict. Upon which the jury found such verdict, accordingly. No judgment was entered on the verdict; but by consent of the counsel in the cause, it was transferred to the circuit court, without any other proceedings in the district court. The record stated, that on the argument of the cause, the circuit court were divided in opinion on questions presented on the argument of p the counsel for the plaintiffs and the defendant; and at the *request t 457 SUPREME COURT United States v. Stone. [Jan’y 525 of the counsel for the parties, they were ordered to be certified to the supreme court for their decision. This division of opinion was in fact made pro formâ, and for the purpose of obtaining the opinion of the supreme court on the points certified. For the United States, Gilpin, Attorney-General ; for Samuel B. Stone, Sullivan, who submitted a printed argument. The case was not argued, it having been remanded to the circuit court. Taney, Ch. J., delivered the opinion of the court.—The court have examined the record in this case, and it is evident, that in the form in which it comes before us, we have no jurisdiction. The suit appears to have been brought in the district court, and to have been carried on in that court until a verdict was rendered. It was then, by consent of counsel, transferred to the circuit court, precisely in the state in which it then was ; and a division of opinion then entered, pro formâ, to send the case to this court. All of this appears on the record ; and is exceedingly irregular. The suit was brought originally in the district court, and the verdict rendered there. The judgment or other proceeding on that verdict, ought to have been entered there also ; and it wras altogether irregular, to transfer the proceedings, in that condition, to the circuit court. We are aware, that in some cases, where the point arising is one of importance and difficulty, and it is desirable, for the purposes of justice to obtain the opinion of this court, the judges of the circuit court have sometimes, by •consent, certified the point to this court, as upon a division of opinion ; when, in truth, they both rather seriously doubted, than differed about it. We do not object to a practice of this description, when applied to proper •cases, and on proper occasions. But they must be cases sanctioned by the judgment of one of the judges of this court, in his circuit. A loose practice in this respect might render this court substantially a court for the original decision of all causes of importance : when the constitution and the laws intended to make it altogether appellate in its character; except in the few cases of original jurisdiction enumerated in the constitution. The •case, as sent here, involves a constitutional question, which is argued at some length in the printed brief ; and this furnishes a still stronger objection to the manner in which the point is brought before us. It would hardly be proper for this court to express opinions upon constitutional questions ; when it appears, clearly, by the record that there is no suit legitimately before it. The case is therefore remanded to the circuit court for further proceedings, according to law. The case of the United States v. Charles A. "Woolsey, having been sent here in like manner ; must also be remanded for the reasons above stated. 458 1840] OF THE UNITED STATES. *526 * United States, Plaintiffs in error, u John P. Gratiot, Robert Burton, Charles S. Hempstead and Dickerson B. Moorehouse, Defendants in error. Lead-mines. The United States instituted an action on a bond given by the defendants, conditioned that certain * of the obligors, who had taken from the agent of the United States, under the authority of the president of the United States, a license for smelting lead-ore, bearing date September 1st, 1834, should fully execute and comply with the terms and conditions of a license for purchasing and smelting lead-ore, at the United States’ lead-mines, on the Upper Mississippi river, in the state of Illinois, for the period of one year. The defendants demurred to the declara- " tion, and the question was presented to the circuit court of Illinois, whether the president of the United States had power, under the act of congress of 3d of March 1807, to make a contract for purchasing and smelting lead-ore, at the lead-mines of the United States, on the Upper Mississippi; this question was certified from the circuit, to the supreme court of the United States: Held, that the president of the United States had power, under the act of congress of 3d of March 1807, to make the contract on which this suit was instituted. The power over the public lands is vested in congress by the constitution, without limitation, and has been considered the foundation on which the territorial governments rest. McCulloch v. State of Maryland, 4 Wheat. 422; and American Insurance Company v. Canter, 1 Pet. 542, cited. The words “ dispose of ” the public lands, used in the constitution of the United States, cannot, -under the decisions of the supreme court, receive any other construction than that congress has the power, in its discretion, to authorize the leasing of the lead-mines on the public lands in the territories of the United States. There can be no apprehension of any encroachments -upon state rights, by the creation of a numerous tenantry within the borders of the states, from the adoption of such measures. The authority given to the president of the United States to lease the lead-mines, is limited to-a term not exceeding five years; this limitation, however, is not to be construed as a prohibition to renew the leases from time to time, if he thinks proper so to do; the authority is limited to a short period, so as not to interfere with the power of congress to make other dispositions of the mines, should they think the same necessary. The legal understanding of a lease for years, is a contract for the possession and profits of land, for a determinate period, with the recompense of rent; it is not necessary that the rent should be in money ; if reserved in kind, it is rent, in contemplation of law. The law of 1807, authorizing the leasing of the lead-mines, was passed before Illinois was organ- " ized as a state ; she cannot now complain of any disposition or regulation of the lead-mines, previously made by congress ; she surely cannot claim a right to the public lands within her limits. _ Certificate of Division from the Circuit Court of Illinois.1 On the first nay of September 1834, the defendants entered into the following bond to the United States, having executed the same under their respective hands and seals : “ Know all men, by these presents, that we, J. P. B. Gratiot, Robert Burton, D. B. Moorehouse and Charles S. Hempstead are holden and stand firmly bound unto the United States of America, or their certain attorney, ln the penal sum of' ten thousand dollars, current money of the United States, well and truly to be paid unto their treasury ; for which payment, well and truly to be made, we, the said J. P. B. Gratiot, Robert Burton, D. -B. Moorehouse and Charles *8. Hempstead do hereby, jointly and sev- r*g2^ erally, bind ourselves, our heirs, executors and administrators, and each of every of them, jointly, severally and firmly, by these presents. 1 For the opinion of Justice McLean, in the circuit court, see 1 McLean 454. 459 SUPREME COURT United States v. Gratiot. [Jan’y 527 Signed with our hands, and sealed with our seals, this day of September, in the year of our Lord 1834. The condition of the above obligation is such, that whereas, the said J. P. B. Gratiot and Robert Burton, have obtained from the agent of the United States a license, bearing date the first day of September 1834, containing stipulations therein more particularly described, to smelt lead-ore. Now, if the said J. P. B. Gratiot and Robert Burton shall faithfully and fully execute and comply with the terms and conditions set forth in said license, then and in that case, this obligation to be void and of no effect, otherwise, to remain in full force and virtue.” At the same time, a paper called a “ license for smelting,” which was executed by Thomas C. Legate, major of the United States army, superintendent of the lead-mines, J. P. B. Gratiot and Robert Burton, under their hands and seals, was delivered to J. P. B. Gratiot and Robert Burton, by Major Legate. “ This indenture, made and entered into this first day of September 1834, between Major T. C. Legate, superintending the United States lead-mines, acting under the direction of the secretary of war, of the first part, and J. P. B. Gratiot and Robert Burton, of the second part, witnesseth : That the said party of the second part is hereby permitted, by and with the approbation of the president of the United States, to purchase and smelt lead-ore, at the United States’ lead mines, on the Upper Mississippi, for the period of one year, from and after the date hereof, upon the following conditions, viz : 1. All purchases, or other acquisitions of ore, ashes, zinc or lead, to be from persons authorized to work the mines, either as lessees, smelters or diggers, and from no others ; and no ore to be purchased from the leased premises of any person, without his permission. 2. To commence smelting as soon as 100,000 pounds of ore are obtained, and to continue it so long as any is on hand ; to weigh a charge of ore for the log furnace, and the lead produced from it, when required to do it by the said first party, or his assistant. 3. To keep a book containing an accurate account of all ore, ashes or zinc, purchased or otherwise acquired, and of all lead manufactured; which book shall, at all times, be open to inspection of the said first party, or his assistant ; and to furnish a transcript or return at the end of every month (agreeably to a form furnished by the said first party); which book and returns to be verified, on oath, if required. 4. The said second party hereby agrees to pay the first party, for the use of the United States, six pounds of every hundred pounds of all the lead smelted by him, under this indenture, to be *paid monthly, in clear pure lead, at the wareroom on Fever river, or at such other place near the mines as the said first party shall direct, and free of expense to the United States. And the said second party is not to sell, or remove from the places of smelting, in any manner whatever, any lead, until the rent be paid as. aforesaid. This condition is subject to the revocation of the government, upon giving three months’ previous notice ; at which time, it will be optional with the licentiate to accept or refuse the new terms. Upon his refusal to accept, then this license shall cease and determine. 5. The second party is allowed to have as much fuel as will suffice, without waste, for the purpose of this indenture ; and to cultivate as much land as will suffice to furnish his teams, &c., with provender. 6. It is understood and agreed between the aforesaid parties, that the said second party shall not employ, in any manner, any 460 1840] OF THE UNITED STATES. 528 United States v. Gratiot. smelter, lessee or miner, who has forfeited /ife license, lease or permit to mine, nor any other person who is at the mines without the authority of the said first party ; and the said second party agrees not to employ or harbor the laborers of workmen of another smelter. Sixty days are allowed after the expiration of this license, to close all business under it; but it is understood that no purchase or hauling of ore is to take pl< ce, after the license is expired. The bond given for the faithful performance of the contract is to be in full force and virtue until a written settlement is made. It is distinctly understood by the said parties, that upon proof being afforded to the first party, that either of the foregoing stipulations have been violated or not complied with, he may declare this indenture null and void, and reenter and take possession of all the premises, as if no such agreement existed.” In the circuit court of the United States for the district of Illinois, the United States instituted an action of debt, to December term 1836, against the defendants, on this bond. The declaration set forth the bond and condition, and recited the license or contract therein mentioned, and averred that the lessees bad, by virtue of the lease, smelted 2,400,009 pounds of lead, but had failed to execute the conditions stipulated on their part, by altogether refusing to pay to the superintendent, for the use of the United States, the six pounds for every hundred pounds so smelted. The defendants demurred to the declaration, after oyer of the bond and license for smelting ; and on the argument of the demurrer, the following question arose, upon which the judges of the circuit court were divided in opinion, and directed it to be certified to this court : “ Whether the president had power, under the act of the 3d of March 1807 (2 U. S. Stat. 449), to make the contract set forth in the declaration.” The case was argued for the United States, by Gilpin, Attorney-General ; and by Benton, for the defendants. * Gilpin, for the United States.—These lead-mines (the United p529 States lead-mines on the Upper Mississippi) are situated on Fever L river, partly within the northern portion of the state of Illinois, and partly in the territory of Wisconsin. They are, of course, within “the territory north-west of the river Ohio,” ceded by Virginia to the United States, by the deed of cession, dated 1st March 1784 (1 Story’s Laws 472) which deed ceded “the soil as well as the jurisdiction.” In consequence of that cession, the old congress passed their ordinance of 20th May 1785 (Ibid. 563), for the survey and sale of the ceded lands. That ordinance, after directing the land to be surveyed into lots of one mile square, and all ‘‘springs, mines,” &c., to be noted, authorized their exposure to public sale; but it directed that from such sale there “should be reserved, for the United States, four lots in each township and also, “ one-third part of all gold, silver, copper or lead mines, to be sold or disposed of as congress should afterwards direct.” The ordinance of 9th July 1788, which repealed some portions of that of 1785, left these provisions in full force, up to the formation of the constitution. The third section of the fourth article of the constitution provides, that “ congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the 461 SUPREME COURT United States v. Gratiot. [Jan’y 529 United States.” This clause was legislated upon by the act of 18th May 1796 (1 U. S. Stat. 464), which provided for the survey and sale of a large portion of the north-western territory. In the second section of that act, the surveyors were directed to note “ all mines, salt-licks, salt-springs, and mill-seats and by the third section, every salt-spring, and a mile square ground it, and certain central sections of every township, were excluded from sale, and “ reserved for the future disposal of the United States.” On the 10th May 1800 (2 Ibid. 73), an act supplementary to this was passed, which expressly provided, “ that the lands of the United States, reserved for future disposition, might be let on leases by the surveyor-general, for terms not exceeding seven years.” When Ohio was formed into the first state in the north-western territory, congress stipulated, by the acts of 30th April 1802, and 3d March 1803 (Ibid. 173, 225}, that the reserved sections, and certain othei' sections of land then unsold, should be granted to the inhabitants for the use of schools, and that the legislature should hold them in trust for that exclusive purpose ; that the reserved salt-springs should be granted “ for the use of the people of the state,” under such regulations as the legislature should direct; and that the same should never be sold, nor leased for a longer period than ten years.” In the following year, an act was passed providing for “ the disposal of the public lands in the Indiana territory,” embracing therein the whole public domain from the boundary of the state of Ohio to the Mississippi, and reserving therein (Ibid. 343) a section in each township for schools, and “the several salt-springs in the , said territory, together *with as many contiguous sections to each as J might be deemed necessary by the president, for the future disposal of the United States.” In 1807, an act was passed (Ibid. 445), to prevent settlements on the public lands which “ had not been previously sold, ceded or leased ” by the United States ; but a provision was made in favor of such persons as had actually settled on them, by suffering them to remain, with the approbation of the president, as “ tenants at will,” on tracts not exceeding 320 acres; provided, however, that where any such tract “included either a lead-mine or a salt-spring, no permission to work the same should be granted, without the approbation of the president, who was authorized to cause such mines or springs to be leased for a term not exceeding three years.” Finally, on the 3d March 1807, it was expressly provided (Ibid. 449), that all the lead-mines in the Indiana territory, with as many sections contiguous to each as were deemed necessary, should be reserved for future disposal; and the president has “authorized to lease any lead-mine which had then or might thereafter be discovered in that territory, for a term not exceeding five years.” This provision remained in full force, and unrepealed, up to the time when the present suit was instituted. It will thus be seen, that, from the cession of the north-western territory, without interruption, down to 1807, congress practised and sanctioned the plan of reserving from sale certain portions of the public domain ; that they held them during an indefinite period, for future disposition ; and that this disposition consisted, either in selling them, when no further reason for reserving them existed, or in ceding them to the states, on certain conditions ; or in leasing them, under the control of the executive, for short periods. This plan has been recognised by repeated subsequent enactments, at least as late as the year 462 1840] OF THE UNITED STATES. 530 United States v. Gratiot. 1832. (2 Story 1076, 1243, 1501 ; 3 Ibid. 1764, 1930 ; 4 Ibid. 2136, 2140. 2259, 2264.) The United States’ lead-mines on the Upper Mississippi, being within the Indiana territory, were early reserved from sale ; and in pursuance of the act of 3d March 1807, leased for limited terms, und^er the direction of the president. At first, the leases included particular mines, or lots of ground but subsequently, the practice was introduced of leasing to some individuals the right to dig the ore on the reserved land, and to others the right to. smelt it. Under this practice, the contract set forth in the declaration was made. It consisted of two instruments : the one was an agreement made between the superintendent of the lead-mines, “ acting under the direction of the secretary of war,” and “ by and with the approbation of the president,” and two of the defendants ; by which they were “ permitted to purchase and smelt lead ore, at the mines, for the period of one year,” paying therefor to the United States “ six pounds of every hundred pounds of all the lead so smelted, at the wareroom on Fever river and also to have the necessary fuel, and to cultivate as much land as sufficed for the provender of their *teams ; the agreement was to be void, and the United States to have the right of immediate re-entry and possession, on non- L compliance with these terms. The other instrument was an accompanying bond, referred to in the agreement, with security conditioned for the fulfilment of these terms. On the trial, the question arose “ whethei* the president had power, under the act of 3d March 1807, to make this contract.” That the lands in question were “ lead mines in the Indiana territory,” is not denied. That they were reserved from sale, is also admitted. That the contract was the act of the president, since it was made by a duly-authorized agent, acting within the scope of his authority, is not disputed. Wilcox v. Jackson, 13 Pet. 513. The only point, therefore, in controversy is, whether or not this contract is such an agreement as congress meant, when they authorized the president “ to lease any lead-mine for a term not exceeding five years.” A lease is a grant of the possession and usufruct of real estate, for a limited term, in consideration of a certain rent. This contract is in all respects such a grant; the lessee has the use of the land for cultivation and fuel, so far as it is needed ; he has the use of the ore for the purpose of smelting ; he is bound to pay a certain rent ; and the grantors have a right of re-entry on certain contingencies. These are the incidents of a lease. Nor is it less a lease, because a right to dig ore on the same premises may be granted to another. There is nothing in such a division of the profits of the leased land, which impairs or changes the nature of the contract. The duration of the term is in accordance with the act of congress, for it is only for a single year. The contract, therefore, is such a lease as the president had authority to make. It has been contended, that the constitution confers no power to make such a contract, under the authority given to congress to dispose of, and make rules and regulations respecting, the public territory ; that the power of sale, and of such previous measures as are necessary for that purpose, and for ascertaining the value of the lands, is all the constitution confers ; and that to grant leases might have the effect of establishing a permanent tenantry within the states. To this it may be answered, in the first place, that these considerations do not present themselves in the question now before 463 SUPREME COURT United States v. Gratiot. [Jan’y 631 this court ; they may be proper for the examination of the circuit court, on the further trial of the cause ; but the only point here submitted is, whether or not the contract in question is a lease. Nor can the objections be sustained in themselves. If they have force, they apply against all reservations ; much morefindeed, against such as are made for fortifications or public works, than these of the lead-mines, since they are permanent ; while these are, by their terms, merely reserved “ for future disposât” Now, it has been seen, that the right of reservation has been exercised and acknowledged, without intermission, from the cession of the domain to the present time ; before the constitution was formed, as well as , s^nce- Even for the *admitted purpose of examination—for the pre--I vention of a useless sacrifice of the lead-mines—this course may be expedient. Nor can it be doubted, that such a power is within the language of the constitution. That language is unusually broad : “ to dispose of, and to make all needful rules and regulations” respecting the public domain. Surely, a power of lease, for a limited time, is embraced in language as broad as this. It has been held by this court to give the widest scope to the action of congress. McCullochs. State of Maryland, 4 Wheat. 422 ; American Ins. Co. s. Canter, 1 Pet. 542. Under it, territorial governments of vast expense and complicated political powers have been formed ; the whole management of the public domain rests upon these few words ; lands have been ceded for special purposes ; limitations have been fixed on the sovereign powers of the states ; school lands are set aside ; timber and salt-springs are kept for public use ; and the spots on which many of our fortifications and public buildings are placed, are permanently secured. All this has been done, in repeated instances, for nearly sixty years. To confine the language of the constitution, therefore, to a mere delegation to congress of a power to sell the territory, or to examine and prepare it for sale, is evidently an unwarranted restriction upon it. If a wider authority be conferred, none would seem more legitimate than this limited and restricted power of leasing, for short periods, the mines that might, from time to time, be discovered. The inference, that it would lead to the establishment of a numerous tenantry, within the states, is less an argument on the language of the constitution than a supposition that congress might wantonly abuse a delegated trust ; it might be used with equal force against all the clauses of the constitution, which give power to that body. If, therefore, it be clear, that the contract in question is a lease, within the legal acceptation of the term, and the intention of the particular act, it is submitted, that there is nothing in the constitution, or in the previous or subsequent legislation of congress respecting the public domain, which made the execution of it improper or invalid. Benton, for the defendants.—The position has been assumed by the attorney-general, that the United States may enter into the broad business of leasing the public lands ; and, by consequence, that -the president may have as many tenants on the public lands of the United States, as he shall desire ; that he may lease in perpetuity, and have those tenants to the extent of time. Such a power is solemnly protested against. No authority in the cession of the public lands to the United States is given, but to dispose of them, and to make rules and regulations respecting the prepara- 464 1840] 532 OF THE UNITED STATES. United States v. Gratiot. tion of them for sale ; for their preservation, and their sale. As to the power to lease, which is claimed for the United States, wThat would the states have said, when the cession of these lands *was made and accepted, if it had been declared, that the president could lease the lands ; and that, sixty years afterwards, this court would be engaged in enforcing a lease given by the United States of part of the lands then to be ceded ? Would the lands have been granted, if congress were to have the power to establish a tenantry to the United States upon them ? The state-rights principles would have resisted this ; no lands would have been ceded. The clause in the constitution of the United States, relative to the public lands, will govern this question ; and the deeds of cession go with the provisions of the constitution. The lands are “ to be disposed of” by congress ; not “held by the United States.” No question can be raised on the construction of the provision of the constitution relative to the public lands. The constitution gives the power of disposal ; and disposal is not letting or leasing. The power to make rules and regulations, applies to the power to dispose of the lands. The rules are to carry the disposal into effect; to protect them ; to explore them ; to survey them. Congress have always treated the public lands on these principles. Formerly, the lead-mines in the now state of Missouri were leased. This was while a territorial government existed there ; when Missouri became a state, opposition was made to the system, and to the practice under it. They were successfully resisted, and the whole system was driven out of the state of Missouri. In that state, there is no longer a body of tenantry, holding under leases from the United States. The practice of leasing the lead-mines then went into the territory of the United States above Missouri— into the territory of Illinois. It was resisted there, but ineffectually ; this resistance cannot be sustained in a territory, with equal force, as it can be in a state. Illinois has become a state ; and she will no longer allow this use of the public lands within her boundaries. 1. Congress has no power to give or authorize leases of the public lands, and to obtain profits from the working of the mines upon them. 2. Congress cannot delegate this power. 3. Congress has made no rule or regulation by which the contract on which this action is brought can be maintained. In arguing these points it is insisted : 1. That the first act of March 3d, 1807, ch. 101, giving the president authority to lease lead-mines, applies only to lands ceded to the United States by the Louisiana treaty, and to persons who had settled on such lands, previous to the passage of the act; and was merely intended to induce such persons to acknowledge the title of the United States, and to become its tenants ; and to give quiet possession, at the end of the lease, to the United States. 2. That the second act of March 3d, 1807, ch. 104, giving the president authority to reserve, for the f uture disposition of congress, the lead-mines of Indiana, and as many contiguous sections of land *as he should think proper, and to lease the „ same for a limited period, was clearly intended to cause the mines to be explored, and their value ascertained, that congress might afterward dispose of them, with a knowledge of their value ; and that the act contains no authority for any such license for smelting lead, with or without its various -onerous conditions, which forms the foundation for the contract disclosed m the record. 14 Pet.—30 465 534 SUPREME COURT [Jan’y United States v. Gratiot. This act is limited to five years. It is not to be tolerated, that this limi-" tation is to be defeated by the renewal of the leases. The leases are to be -given for mines which may be discovered. This is discovery by the surveyors of the United States. No mines are to be leased, but those which may thus becbme known. Private persons cannot seek for them, and then take leases of them. The law provides, that the “ reserved lead-mines” may be leased. But no lead-mines have been reserved in the state of Illinois and in the declaration, there is no averment that there has been such a reservation. The ease before the court is not, therefore, within the provisions of the act of congress ; if the construction of the constitution and the law shall, in the opinion of the court, be such as would authorize leasing the lands of the United States. Those who execute a law, are to show that they are within its terms ; agents are to act within the granted authority» The agents of the government of the United States must show that the -act of congress has been followed. To show that the agent of the United States has not followed his authority, will be to show it has not limited his authority. He styles himself “ agent of the United States’ lead-mines.” This is the assertion of an agency over all the world 1 Where is the law authorizing the appointment of a superintendent of the lead-mines ? There is no law, nor is there an averment in the pleadings of such an authority. The action of the agent is set forth, in the record ; not that he has granted a lease, but that he has granted a license. A license is not authorized. The license does not locate the person to whom it is given in any particular place. It gives him a right to go where he pleases. This is contrary to the usual forms of the law, and • it interferes with the provisions of the land laws. The license is not to work -mines ; but “ to purchase ore” “ and lead,” “ and timber.” All this is unauthorized by the acts of congress. It is a clear case on the policy of the law, and it is clear on the terms of the statutes, that the authority to lease is not given, and its exercise is invalid. 5 Am. State Papers 460. Thompson, Justice, delivered the opinion of the court.—This case comes up from the circuit court of the United States for the district of Illinois. It is an action of debt, founded on a bond given by the defendants to the United States, in the penalty of $10,000, bearing date the 1st of September , 1834, with a *condition thereunder written, for the performance of J certain covenants or stipulations contained in an indenture referred to, and bearing even date with the bond, and called a license for smelting lead. The declaration sets out the condition of the bond, with the parts of indenture referred to, upon which breaches are alleged ; and then assigns the breaches. The defendants crave oyer of the bond, and the instrument or indenture referred to in the condition, and they are read to him as follows : “Know all men, by these presents, that we, J. P. B. Gratiot, Robert Burton, D. B. Moorehouse and Charles S. Hempstead are holden and stand firmly bound unto the United States of America, or their certain attorney, in the penal sum of ten thousand dollars, current money of the said United States, well and truly to be paid into their treasury ; for which payment, well and truly to be made, we, the said J. P. B. Gratiot, Robert Burton, D. B. Moorehouse and Charles S. Hempstead do hereby, jointly and sever- 466 1840] OF THE UNITED STATES. 535 United States v. Gratiot. ally, bind ourselves, our heirs, executors and administrators, and each and every of them, jointly, severally and firmly, by these presents. Signed with our hands, and sealed with our seals, this first day of September, in the year of our Lord 1834. The condition of the above obligation is such, that whereas, the said J. P. B. Gratiot and Robert Burton have obtained from the agent of the United States a license, bearing date the first day of September 1834, containing stipulations therein more particularly described, to smelt lead ore : Now, if the said J. P. B. Gratiot and Robert Burton shall faithfully and fully execute and comply with the terms and conditions set forth in said license, then and in that case, this obligation to be void and of no effect, otherwise to remain in full force and virtue. Witnesses present : Geo. Goldthorp, Peter Aydelott, Abraham Blaylen.” J. P. B. Gratiot, Robert Burton, Chs. S. Hempstead, J. B. Moorehouse.’: [seal.] [seal.] [seal.] [seal.] License for smelting. “This indenture, made and entered into this first day of September 1834, between Major T. C. Legate, superintending the United States’ lead-mines, acting under the direction of the secretary of war, of the first part, and J. P. B. Gratiot and Robert Burton, of the second part, witnesseth : That the said party of the second part is hereby permitted, by and with the approbation of the president of the United States, to *purchase and smelt lead-ore at the United States’ lead-mines, on the Upper Mississippi, L for the period of one year, from and after the date hereof, upon the following condition, viz : 1. All purchases or other acquisitions of ore, ashes, zinc or lead, to be from persons authorized to work the mines, either as lessees, smelters or diggers, and from no others ; and no ore to be purchased from the leased premises of any person, without his permission. 2. To commence smelting as soon as 100,000 pounds of ore are obtained, and to continue it so long as any is on hand ; to weigh a charge of ore for the logfurnace, and the lead produced from it, when required to do it by the said first party or his assistant. 3. To keep a book containing an accurate account of all ore, ashes or zinc purchased, or otherwise acquired, and of all lead manufactured ; which book shall, at all times, be open to inspection of the said first party or his assistant; and to furnish a transcript or return, at the end of every month, agreeably to a form furnished by the said first party ; which book and returns to be verified on oath, if required. 4. The said second party hereby agrees to pay the first party, for the use of the United States, six pounds of every hundred pounds of all the lead smelted by him, under this indenture, to be paid monthly, in clear pure lead, at the wareroom on Fever river, or at such other place near the mines as the said first party shall direct, and free of expense to the United States. And the said second party is not to sell, or remove from the place of smelting, in any manner whatever, any lead, until the rent be paid as aforesaid. This condition is subject to the revocation of the government, upon giving three months’ previous notice ; at which time, it will be optional with the licentiate to accept or refuse the new terms. Upon his refusal to accept, then this license shall cease and determine. 5. The second party is allowed to have as much fuel as will suffice, without waste, for the purpose of this 467 536 SUPREME COURT [Jan’y United States v. Gratiot. indenture, and to cultivate as much land as will suffice to furnish his teams, &c., with provender. 6. It is understood and agreed between the aforesaid parties, that the *said second party shall not employ, in any manner, any smelter, lessee or miner, who ha^ forfeited his license, lease or, permit to mine, nor any other person who is at the mines, without the authority of the said first party; and the said second party agrees not to employ or harbor the laborers or workmen of another smelter. Sixty days are allowed, after the expiration of this license, to close all business under it; but it is understood, that no purchase or hauling of ore is to take place, after the license is expired. The bond given for the faithful performance of the contract is to be in full force and virtue, until a written settlement is made. It is distinctly -understood by the said parties, that, upon proof being afforded to the first party, that either of the foregoing stipulations have been violated or not complied with, he may declare this indenture null and void, and re- -* enter and take possession of all the premises as if no such agreement existed. “ Witnesses present : Tho. C. Legate, [seal.] - Geo. Goldthorp, Major U. S. Army, Sup. L. Mines. Peter Aydelott, J. P. B. Gratiot, [seal.] Abraham Blaylen.” Robert Burton.” [seal.] Which being read and heard, the defendants interposed a general, demurrer to the declaration ; and upon the argument of the demurrer, the opinions of the judges were opposed upon the following point. “Whether the president of the United States had power, under the act of congress of the 3d of March 1807, to make the contract set forth in the declaration ;” which point has been duly certified to this court. The act of congress referred to, is entitled, “ an act making provision for the disposal of the public lands situate between the United States military tract, and the Connecticut reserve, and for other purposes.” This act establishes a land-office, and makes provisions for the disposal of the lands of the United States referred to in the title of the act ; and among other things, the fifth section declares as follows : “ That the several lead-mines in the Indiana territory, together with as many sections contiguous to each as shall be deemed necessary by the president of the United States, shall be reserved for the future disposal of the United States. And any grant which may hereafter be made for a tract of land containing a lead-mine, which had been discovered previous to the purchase of such tract from the United States, shall be considered fraudulent and null ; and the president of the United States shall be and is hereby authorized to lease any lead-mine, which has been, or may hereafter be discovered in the Indiana territory, for a term not exceeding five years.” That the mines now in question lie within the territory referred to in the act of congress, and are the property of the United States is not denied. And the constitution of the United States (article 4, § 3) provides, “ that congress shall have power to dispose of and make al! needful rules and regulations respecting the territory or other property, belonging to the United States.” The term territory, as here used, is merely descriptive o one kind of property ; and is equivalent to the word lands. And congress has the same power over it as over any other property belonging to t ie 468 1840] OF THE UNITED STATES. 537 United States v. Gratiot. United States ; and this power is vested in congress without limitation ; and has been considered the foundation upon which the territorial governments rest.1 In the case of McCulloch v. State of Maryland, 4 Wheat. 422, the chief justice, in giving the opinion of the court, speaking of this article, and the powers of congress growing out of it, applies it to territorial , *governments; and says, all admit their constitutionality. And again, in the case of the American Insurance Company v. Canter, 1 L Pet. 542, in speaking of the cession of Florida, under the treaty with Spain ; he says, that Florida, until she shall become a state, continues to be a territory of the United States government, by that clause in the constitution which empowers congress to make all needful rules and regulations respecting the territory or other property of the United States. If such are the powers of congress over the lands belonging to the United States, the words “dispose of,” cannot receive Xhe construction contended for at the bar ; that they vest in congress the power only to sell, and not to lease such lands. The disposal must be left to the discretion of congress. And there can be no apprehension of any encroachments upon state rights, by the creation of a numerous tenantry within their borders ; as has been so strenuously urged in the argument. The law of 1807, authorizing the leasing of the lead-mines, was passed before Illinois ‘was organized as a state ; and she cannot now complain of any disposition or regulation of the lead-mines previously made by congress. She surely cannot claim a right to the public lands within her limits. It has been the policy of the government, at all times, in disposing of the public lands, to reserve the mines for the use of the United States. And their real value cannot be ascertained, without causing them to be explored and worked, under proper regulations. The authority given to the president to lease the lead-mines, is limited to a term not exceeding five years; this, limitation, however, is not to be construed as a prohibition to renew the leases, from time to time, if he shall think proper so to do. The authority is limited to a short period, so as not to interfere with the power of congress to make other disposition of the mines, should they think proper so to do. Does, then, the contract upon which the present action is founded, fall within the authority given to the president to lease the lead-mines ? Or, in other words, is this contract a lease, within the meaning of the law ? In construing this contract, the bond, and what is called “the license for smelt,-ing,” are to be taken as parts of the same instrument; and purport to have been made with the defendants, with T. C. Legate, superintending the United States’ lead-mines, acting under the direction of the secretary of war, who must be presumed to be acting undei’ the authority of the president; especially, as the permission given by the contract, in terms, is said to be by and with the appropriation of the president of the United States. This contract purports to be a license for smelting lead-ore ; and it is objected, that this is not a lease, within the meaning of the act of congress. But this objection is not well founded. It is a contract for one year, and of course, within 1 This clause of the constitution only applies to territory "within the chartered limits of some one of the states when they were British colonies ; it does not apply to territory acquired by the present federal government, by treaty or conquest from a foreign nation. Scott v. Sandford, 19 How. 395. 469 538 SUPREME COURT [Jan’y Holmes v. Jennison. the time limited by the law, which gives to the president authority to lease for five years. Is it, then, a lease ? The legal understanding of a lease for years is, a contract for the possession and profits of land, for a determinate period, with the recompense of rent. The contract in question is strictly * within this definition. The *business of smelting is a part of the -I operation of mining, although it may be a distinct branch from that of digging the ore ; but the law ought not to be so construed as to require the whole operation to be embraced in the same contract. They are different operations, requiring different qualifications, and distinct regulations. This contract is for the possession of land. The work is to be performed at the United States’ lead mines, and must, of course, be performed within the limits prescribed by law to be attached to such mines. And there is an express permission to use as much fuel as is necessary to carry on the smelting business, and to cultivate as much land as will suffice to furnish teams, &c., with provender ; and there is an express reservation of the rent of six pounds of every hundred pounds of lead smelted, with special and particular stipulation for securing the same. It is not necessary that the rent should be in money. If received in kind, it is rent, in contemplation of law. We are accordingly of opinion, that the question certified in the record must be answered in the affirmative. This cause came on to be heard, on the transcript of the record from the circuit court of the United States for the district of Illinois, and on the point and question on which the judges of the said circuit court were opposed in opinion, and which was certified to this court for its opinion, agreeable to the act of congress in such case made and provided, and was argued by counsel: On consideration whereof, it is the opinion of this court, that “ the president had power, under the act of the 3d of March 1807, to make the contract set forth in the declaration.” Whereupon, it is ordered and adjudged by this court, that it be so certified to the said circuit court accordingly. * *<^orge Holmes, Plaintiff in error, v. Silas H. Jennison, Gov-J ernor of the State of Vermont, and John Starkweather Sheriff of the County of Washington, in the said State of Vermont, and their successors in office, Defendants in error. . Extradition. In the state of Vermont, George Holmes was confined under a warrant issued by the governor of that state, directing the sheriff of the county of Washington, to convey and deliver him “ to William Brown, the agent of Canada, or to such person or persons as, by the laws of said province, may be authorized to receive the same, at some convenient place on the confines of this state and the said province of Lower Canada ; to the end that he, the said George Holmes, may be thence conveyed to the said district of Quebec, and be there dealt with as to law and justice appertains.” The warrant stated, that “ George Holmes was in the custody of the sheriff,” by reason of a charge of felony, sustained by indictment, found by the grand jurors of the district of Quebec, in the province of Lower Canada; that “ the said George Holmes, on the 31st day of January 1838, at the parish of St. Louis of Kamourasca, in said district, did feloniously kill and murder one Louis Paschal Achille Tache; and whereas, the said George Holmes not being a citizen of tne state of Vermont, but a citizen of the said province of Lower Canada, and has come into 470 1840] OF THE UNITED STATES. 540 Holmes v. Jennison. this state from the said province of Canada, and the offence whereof he stands charged as aforesaid, having been committed within the jurisdiction of said province, it is fit and expedient that he, the said George, be made amenable to the laws of said province, for the offence aforesaid.” A writ of habeas corpus was, on the petition of George Holmes, issued by the supreme court of ' Vermont, and on the return thereto by the sheriff, stating the warrant of the governor to be the cause of his detention, he was remanded by the court; Holmes prosecuted a writ of error to the supreme court of the United States. The writ of error was dismissed, the court being equally divided. Error to the Supreme Court of Judicature of the State of Vermont. On the 19th of July 1839, George Holmes presented a petition to the supreme court of the state of Vermont, then in session, setting forth that he was in the custody of John Starkweather, sheriff of the county of Washington, in the common jail of Montpelier, under a warrant bearing date the 16th of April 1839, issued by Silas H. Jennison, governor of Vermont; and that he was unlawfully imprisoned and restrained of his personal liberty. He prayed for a writ of habeas corpus, to be directed to the sheriff. The writ was issued, and the sheriff returned that he had the body of the petitioner before the court, and that he held him in custody under the following •order from the governor of the state of Vermont: “State ok Vermont : To John Starkweather, Esquire, Sheriff of the County of Washington, greeting : Whereas, George Holmes, late of Sorel, in the province of Lower Canada, is now detained in the common jail in said Washington county, and under your •custody, by reason of a certain charge of *felony, sustained by indict-ment found by the grand jurors of the district of Quebec, in said prov- L ince,to wit : That the said George Holmes, on the 31st day of January 1839, at the parish of St. Louis of Kamouraska, in said district, did feloniously kill and murder one Louis Paschal Achille Tache ; and whereas, the said George Holmes, not being a citizen of the state of Vermont, or of any of the United States, but a citizen of the said province of Lower Canada, and has come into this state from the said province of Canada, and the offence, whereof he is oharged as aforesaid, having been committed within the jurisdiction of said province, it is fit and expedient that he, the said George, be made amenable to the laws of said province, for the offence aforesaid : You are, therefore, required, that, as soon as may be after the 27th day of (instant) April, the body of the said George Holmes, now in your custody, you convey and deliver to William Brown, the agent of Canada, or to such person or persons as, by the laws of the said province, may be authorized to receive the same, at some convenient place on the confines of this state and the said province of Canada ; to the end, that he, the said George Holmes, may be therein conveyed to the said district of Quebec, and be there dealt with as to law and justice appertains. Hereof fail not, but of your doings in the premises make due return. Given under my hand, at Shoreham, this 16th day of April 1839. S. H. Jennison, Governor of Vermont.” On the hearing of the habeas corpus, before the Supreme Court of Ver- : mont, evidence was produced which showed that George Holmes was a native citizen of the United States, having been born in the state of New Hampshire. 471 541 SUPREME COURT [Jan’y Holmes v. Jennison. A correspondence between C. P. Van Ness, Esq., the governor of the state of Vermont, in the year 1825, with the executive of the United States^ was also given in evidence.- In March 1825, the governor of Vermont forwarded to Mr. Clay, the secretary of state of the United States, a communication addressed to him by “ the acting governor of Canada/’ stating that two soldiers of a British regiment, who had committed a robbery on two officers of the regiment, were then in confinement in jail, in Burlington, Vermont, and asked that the offenders should be delivered up to a person to be authorized to receive them, to be brought to justice in the province of Canada. The governor of Vermont, in the letter to the secretary of state, expresses his readiness to attend to any directions the secretary of state of the United States might please to give on the subject. The reply of Mr. Clay, which was transmitted by Governor Van Ness to the acting governor of Canada, states : “ I am instructed by the president to express his regret to your excellency, that the request of the acting governor of Canada cannot be complied with, under any authority now vested in the executive gov-* . ernment the United *States ; the stipulation between this and the British government, for the mutual delivery of fugitives from justice, being no longer in force ; and the renewal of it by treaty, being, at this-time, a subject of negotiation between the two governments.” A motion was made for the discharge of the prisoner, upon the ground of the insufficiency of the cause alleged for his detention, as being at variance with the provisions of the constitution of the United States ; and after a hearing of the case, the court rendered judgment against the application^ and ordered the prisoner to be remanded. George Holmes prosecuted this writ of error. The case was argued by Van Ness, for the plaintiff in error. No counsel appeared on the part of the defendants. Van Ness, for the plaintiff in error.—The case in the record now before the court presents two general questions. First, has this court jurisdiction? And secondly, if it has, is the judgment complained of erroneous ? The question of jurisdiction depends essentially upon the provisions of the constitution of the United States, defining the powers of this court, and upon the 25th section of the judiciary act of 1789, prescribing the mode in which the judgments of state courts, in certain cases, can be here reexamined. But before entering upon this field, it may be proper briefly to advert to the principles of the common law, as it regards the prosecution of writs of error. It appears never to have been judicially settled in England, whether this writ would lie where a judgment had been rendered on the return to a habeas corpus ; though the point, in one or two instances, has been incidentally alluded to, while in another, it was directly agitated, but without any decisive result. In the case of "Wagoner, called the Case of the City of London, reported in 8 Co. 253, there was an objection made to the return upon a habeas corpus, that it consisted too much in recital, instead of being more direct and certain ; and the court answered, that it “ was not a demurrer in law, but a return on a writ of privilege, upon which no issue could be taken or demurrer joined ; neither upon the award would any writ of error lie, the return being to inform the court of the truth of the matter in which such precise certainty is not required as in pleading.” In the case 472 1840] OF THE UNITED STATES. 542 Holmes v. Jennison. of the King v. Dean and Chapter af Trinity Chapel, in Dublin, reported in 8 Mod. 28, and in 1 Str. 536, a writ of error was brought to the king’s bench, in England, to reverse a judgment of the king’s bench, in Ireland, awarding a peremptory mandamus, and it was decided, that error would not lie. In the first-mentioned report of this case, the court is represented as saying : “ It is against the nature of a writ of error, to lie on any judgment but in causes where an issue can be joined and tried, or where judgment may be had upon a demurrer and joinder in demurrer, and therefore, it would pot lie *on a judgment for a procedendo, nor on the return of a habeas corpus.” By the report of Strange, which is much more full, and doubt- •-less, more correct, it appears, that on the first argument of the case, the judges doubted as to whethei’ the writ of error could be brought, some of them leaning one way, and some the other way. But after a second argument, they agreed, that the writ could not be sustained. Nothing, however, is said about a writ of erroi’ on a habeas corpus, except that one of the judges inferred from the form in which the judgment was entered'in the case of ths Aylesbury men (of which I shall presently take notice), that that case was not thought to be one in which a writ of error could be brought. And upon looking into the reasons assigned for the decision, it will be seen, that the principal one was the omission of the words, “ ideo consideratum est” in the entry of the judgment. Here, let it be observed, that in neither of the two cases referred to was there a question, whether a writ of error would lie in the case of a habeas corpus; and therefore, that whatevei' may have been said by the court in either of them, upon this point, was foreign to the subject before them, and cannot be entitled to the weight of authority. And it should be particularly noticed, that the principal reason upon which the last-mentioned case was finally decided, was the omission of the words, “ ideo consideration est,” in the entry of the judgment; thus placing the question, whether the decision of the court constituted a regular judgment upon the particular words made use of in entering such decision on the record, instead of determining that point from the nature and effect of the decision so given. But there remains the case of the Aylesbury Alen (Regina v. Paty), in which the question which we are now discussing, directly arose. This case occurred in the first years of the reign of Queen Anne, and is reported ?n 2 Salk. 503, and in 2 Ld. Raym. 1105, and also in Holt 526. There was a commitment by order of the house of commons, of certain persons, for an alleged contempt, in having commenced an action against the constables of Aylesbury, for refusing to take their votes at an election for members of parliament. The prisoners were brought before the court of king’s bench, by a writ of habeas corpus, and three of the four judges held, that the commitment was legal; but Holt, Chief Justice, declared the contrary. A writ of error to the house of lords upon this judgment, having been applied for, the house of commons insisted, that none ought to be granted, while the house of lords took the opposite side. The latter condemned the course pursued by the commons, and requested of the Queen, “ that no consideration whatever should prevail with her majesty to suffer an obstruction to the known course of justice ; but that she would be pleased to give effectual orders for the immediate issuing of the writ of error.” And in refer- 473 [Jan’y 543 SUPREME COURT Holmes v. Jennison. ring to the several objections made by the commons, they said : “ As to the * , second thing they (the commons) have taken upon them to *assert, J that no writ of error lies in the casewe affirm to your majesty, with great assurance, that the house of commons have no right or pretence to determine whether that be so or not. The right to judge when a writ of error is properly brought, is by law intrusted to that court to which the writ of error is returnable. And therefore, we shall not at present say anything to your majesty, in an extra-judicial way, and before the proper time, as to the point, whether a writ of error brought upon a judgment for remanding prisoners upon a habeas corpus can be maintained.” Now, although the house of lords did not in terms declare that the writ, if brought, would be sustained by them, yet it would certainly be unreasonable to suppose, that they would have pressed the subject in the manner they did, had they been of the contrary opinion. And as this case occurred nearly one hundred years after that of the City of London, it follows most clearly; that what had been loosely said in the latter, had never grown into authority, nor had any effect towards settling the principle. The question, therefore, remains an open and ’ unsettled one, in England, to this day. In Coke’s Com. on Littleton, 288 b, it is laid down, that “ a writ of error lieth, when a man is aggrieved by an error in the foundation, proceedings, judgment or execution.” And again, that “without a judgment, or an award in the nature of a judgment, no writ of error doth lie.” Now, what is a judgment, but the decision of the court upon the case before it ? And is not the decision upon the return to a habeas corpus, determining whether the imprisonment of a person is lawful or unlawful, a judgment in the case; or, at least, an award in the nature of a judgment? There is a case regularly brought before the court, and the merits of the question which it was designed to try are examined and determined. If this determination does not constitute a judgment, I am at a loss to understand what does. And moreover, in order to determine this, is it reasonable or proper, that we should shut our eyes to the nature and character of the act performed by the court ; and look merely at the particular set of words, that may happen to be used in recording such act ? It should here be noted, that error lies in England, to reverse an outlawry ; that it lies upon a statute-merchant; and also upon a fine ; in neither of which last two cases, at least, can it be said, that there is any judgment of a court. In the state of New York, this subject was very fully and ably discussed in the case of Yates v. People, reported in 6 Johns. 337 ; and it was there decided by the court of errors, the highest judicial tribunal in the state, that a writ of error would lie in the case of a habeas corpus. It is true, that there was a respectable minority in the court, dissenting from the decision, but it can scarcely be denied, that the weight of the argument was on the side of the majority. And I beg, particularly, to refer the court to the opinion delivered by that great man, De Witt Clinton, who, though not a technical, nor even a practising lawyer, exposed in a *masterly and unanswer- -* able manner, the weakness and absurdity of the grounds urged, why a writ of error should not be considered a legal and appropriate remedy in a case of this kind. Upon the whole, therefore, it appears to me, that the jurisdiction of this 474 1840] 545 OF THE UNITED STATES. Holmes v. Jennison. court in the present case, so far as it concerns the point whether a writ of error will lie in the case of a habeas corpus, is sustainable, even upon the principles of the common law. But we will now turn to the constitution and laws of the United States ; upon which, after all, as I have already said, the question essentially rests. The constitution provides, that in all cases arising under the same, the laws of the United States, and the treaties made under their authority, this court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as congress shall make. By the 25th section of the judiciary act of 1789, a final judgment or decree in any suit, in the highest court of law or equity in which a decision could be had, of a state, may be re-examined and reversed or affirmed in this court, upon a writ of error, where is drawn in question, upon other subjects, the validity of an authority exercised under any state, on the ground of such authority being repugnant to the constitution or laws of the United States, and the decision of the state court is in favor of the validity of such authority. The principal question wrhich the record in this case presents is, whether the authority exercised by the governor of Vermont, under or on behalf of the state, in issuing the order for the arrest of the plaintiff in error, and his transportation to a foreign country, was in violation of, or repugnant to, the constitution of the United States. And it has been fully settled by this court, that it need not, in terms, be stated, that the constitution or an act of congress was drawn in question, in order to give the court jurisdiction on error from a state court ; but that it is sufficient, if the record shows that some one of the requisite questions was necessarily involved in the case. I will not, therefore, spend further time to prove that the subject-matter of this cause may come here ; but will proceed with the examination, as to whether it has been brought here in the manner prescribed by the act of congress. The substance of what is required is, that there should be a question, of which, by the constitution, this court has appellate jurisdiction ; the manner of bringing that question here being but matter of form. And herein consists the difference between the principles which are to govern the decision of this case, and those which are applicable to writs of error in England. There, the right to bring error appears to depend upon the form of the proceedings which are sought to be re-examined, without regard to the merits of the controversy ; while here, it depends upon the principles involved in the case, without regard to the form of the proceedings. It is but fair to suppose, that it was the intention of congress, in framing the provisions of the judiciary act of 1789, which have been *already stated, to carry into execution the grant of jurisdiction contained in the constitution ; L and in that light, the act should be liberally construed. But so far as it may be supposed, that the object was to make exceptions to the grant, the construction ought to be a strict one. And here let me make the passing remark, that although, in my judgment, some erroneous ideas have been entertained as respects the power of congress to make exceptions, yet that I do not deem it necessary to my present purpose, to enter upon that question. I return to the point, the constitution, as we have seen, embraces in the jurisdiction, all cases arising under the same, or under the laws and treaties 475 546 SUPREME COURT [Jan’y Holmes v. Jennison. of the United States ; while the act of congress provides for a writ of error from the judgment of a state court, in any suit in which certain questions of the nature of those memtioned in the constitution, and including the one presented by the record before the court, shall arise. Can there be a reasonable doubt, that the main object of the law was, to provide for bringing up the questions specified, without reference to the particular form of the proceedings in which they might occur ? Is it not plain, that the terms “any suit,” were intended to be used in a sense co-extensive with “all cases?” And, indeed,I feel persuaded, that I might^afely rest the question upon the meaning of the term “ suit,” by itself considered. It is defined, to-be “ the lawful demand of one’s rightand what broader expression can be necessary to include the wTrit of habeas corpus, which is brought to recover jone’s personal liberty, the highest and most valuable of all rights? But finally, I view this question to have been settled (at least in effect) by this court. In the case of the Columbian Insurance Company v. Wheelright, 7 Wheat. 534, it was decided, that error would lie upon the award of a peremptory mandamus. Error was also sustained in a similar case, in favor of Mr. Kendall, the postmaster-general. 12 Pet. 524. And in the case of Weston v. City Council of Charleston, 2 Pet. 450, it was determined, that this writ might be brought upon a denial to grant a prohibition. In the last-mentioned case, the following language, with reference to the word “ suit,” was used by Chief Justice Marshall, in delivering the opinion of the court: “ The term is certainly a comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit.” I wish to bring back to the notice of the court, that it has been settled in England, by the house of lords, that neither in the case of a mandamus, nor of a prohibition, can a writ of error be sustained. As to the former, it was decided in the case already cited, of the King n. Dean and Chapter of * .. Trinity Chapel, which was *carried up to the house of lords. And J with regard to the latter, it was settled in the case of the Bishop of St. David's n. Lucy, 1 Salk. 134; 1 Ld. Raym. 545. If, then, this court has exercised jurisdiction in both of those cases, contrary to the decisions of the highest courts in England, why should not the jurisdiction be sustained in the one now before the court ; when it has never been determined in England, that a writ of error could not be brought to reverse a judgment rendered on the return to a habeas corpus? Surely, it will not be said, that property is more worthy of the protection of this court, than the personal liberty of the citizen. Nor can it be pretended, that a mandamus or a prohibition is esteemed a higher remedy than the writ of habeas corpus, the privilege of which was considered of so sacred a character, and so essential to the personal security of the people, that the constitution has provided against any suspension of it, even by congress, except in cases of rebellion or invasion. But I will leave this part of the case, in the full persuasion that, even without any other argument or authority, the determination of this court, and the reasons upon which it was founded in the case of Weston v. City 476 x 1840] OF THE UNITED STATES. 547 Holmes v. Jennison. Council of Charleston, is absolutely decisive in favor of the jurisdiction which I have endeavored to maintain.' I come now to the main question in the case, which is, whether the judgment of the state court is erroneous or not. I am not able to present to this ■court the reasons upon which the three judges of the court below, who concurred in- the decision, founded their judgment; since they have never appeared willing to assign any, though repeatedly called upon to do so. The first point, upon this part of the case, for which I contend, is, that the surrender of persons charged with the commission of crimes in foreign countries, is a mere matter of comity between nations, and not of obligation ; but that whether it be the one or the other, the subject is wholly of a national character, and the power over it conferred exclusively upon the government of the Union. Of the more early writers who have treated * upon the subject, Grotius, Burlamaqui and Vattel assert, that a positive obligation exists to make the surrender; while Puffendorf, Martens and Lord Coke deny the existence of such obligation, and hold, that surrenders are only made upon the ground of national comity, or by virtue of treaty -stipulations. The authors and legal characters, who have more recently treated of the matter, in this as well as in other countries, generally, if not all of them, maintain the latter position. There are two adjudged cases in this country, which deserve to be noticed. The one is a decision of Chancellor Kent, of New York, and is to be found in 4 Johns. Ch. 106 ; and the other, of Chief Justice Tilghman, of Pennsylvania, reported in 10 Serg. & Rawle 125. Chancellor Kent insists, that, by the laws of nations, there is an absolute and positive national obligation to surrender fugitives from justice, on proper demand being made. He *undertakes to maintain, that the article in the treaty of 1794, between the United States and Great Britain, providing for *-the mutual surrender of persons charged with murder and forgery, created no new obligation ; and he even supposes it to have operated, during its existence, as a restriction, so far as it related to the crimes in regard to which surrenders were to be made. Chief Justice Tilghman maintains precisely the opposite ground ; and it appears to me, that no impartial man can read his opinion, without acknowledging the superority of his reasoning, and _ becoming convinced of the correctness of his conclusions. There is no English authority that maintains the doctrine of obligation. In two of the cases cited by Chancellor Kent, the persons accused were sent to Ireland for -trial, and in another, to Calcutta ; but in all three of them, it was upon the ground, that this was allowable by the provisions of the habeas corpus act of Charles II., since the places to which the prisoners were sent were under the dominion of the king of England. What was done with the -man who was suspected of a murder in Portugal, is left in doubt; the whole report of the case being as follows: “ On a habeas corpus," it appeared, that the defendant was committed to Newgate, on suspicion -of murder in Portugal, which (by Mr. Attorney) being a fact out of the king’s dominions, is not triable by commission, upon 35 of Henry VIII., . o. 3, § 1, but by a constable and marshal; and the court refused to bail him.” It certainly does not appear, that he was to be sent out of the country. The remark of Judge Heath, in the case of Meer v. Kay, 4 Taunt. 34, although foreign to the question before the court, so far from operating 477 548 SUPREME COURT [Jan’y , Holmes v. Jenn ¡son. against ns, clearly shows that he did not consider the surrender of criminals as a matter of obligation. He exprfessly put it upon the ground of the “comity of nations,” that it had been held that the crew of a Dutch ship, which had run away with the vessel, might be sent back. But the decisions and practice of our own government ought to.be deemed to be conclusive upon this subject. Ever since the organization of the general government, it has been held, that we were under no obligation to surrender persons who had sought an asylum here, though charged with the commission of crimes, previous to their change of country. In the year 1791, the governor of South Carolina made a request that the president of the United States should demand of the governor of Florida, certain persons who had committed crimes in South Carolina, and fled to Florida. Mr. Jefferson, the secretary of state, in his report to President Washington, says : “ England has no convention with any nation for the surrender of fugitives from justice, and their laws have given no power to their executive to surrender fugitives of any description, they are accordingly constantly refused ; and hence, England has been the asylum of the Paolis, the la Mottes, the Calonnis; in short, of the most atrocious offenders, as well as of the most innocent victims, who have been able to get there. The laws of the United States, like those of England, receive every fugitive; and no authority has * , been given to *our executives to deliver them up. If, then, the -* United States could not deliver up to General Quesnada (Governor of Florida), a fugitive from the laws of his country, we cannot claim as a right the delivery of fugitives from us. And it is worthy of consideration, whether the demand proposed to be made in Governor Pinkney’s letter, should it be complied with the other party, might not commit us disagreeably, and perhaps dishonorably ; for I do not think that we can take for granted, that the legislature of the United States will establish a convention for the mutual delivery of fugitives ; and without a reasonable certainty that they will, I think we ought not to give Governor Quesnada any ground to expect that in a similar case we would redeliver fugitives from his government.” In the year 1793, Mr. Jefferson answered an application of Mr. Genet, the French minister, in the following terms : “ The laws of this country take no notice of crimes committed out of their jurisdiction. The most atrocious offender, coming within their pale, is received by them as an innocent man, and they have authorized no one to seize or deliver him. The evil of protecting malefactors of every dye is sensibly felt here, as in other countries; but until a reformation of the criminal codes of most nations, to deliver fugitives from them, would be to become their accomplices. The former is viewed, therefore, as the lesser evil. When the consular convention with France was under consideration, this subject was attended to ; but we could agree to go no further than is done in the ninth article of that instrument, where we agree mutually to deliver up captains, officers, marines, sailors and all other persons, being part of the crews of vessels. Unless, therefore, the persons demanded be part of the crew of some vessel of the French nation, no person in this country is authorized to deliver them up ; but on the contrary, they are under the protection of the laws.” Mr. Monroe, as secretary of state under President Madison, in his instructions to our commissioners at Ghent, said : “ Offenders, even con- 478 1840] OF THE UNITED STATES. 549 Holmes v. Jennison. spirators, cannot be pursued by one power into the territory of another, nor are they delivered up by the lattér, except in compliance with treaties, or by favor.” And as our government has, in all cases of applications from foreign powers, refused to surrender, upon the same ground, I would ask whether these decisions, and this practice, ought not to be conclusive upon all the authorities of our national and state governments ? Are we still to search among the general and vague remarks of the old writers upon the laws of nations, to ascertain what are our obligations in this respect ; when they have been so fully settled by our own government? This, indeed, would be most extraordinary. But I have said, that whether a matter of obligation, or of comity, the subject appertains exclusively to the national government. It is now well settled and understood, that there are three ways in which the states have been deprived of power by the constitution. First, where there is a grant of power to the national government, exclusive in its terms. Secondly, where, after a grant *to that government, there is a prohibition upon the states in relation to the same object. And thirdly, L 550 where the exercise by the states of an authority conferred upon the national government would be repugnant and incompatible. Before proceeding to inquire whether the power to act upon the subject of surrendering fugitives from foreign countries, is included in any grant of the character described under the first of these heads ; or whether, in any prohibition referred to, under the second ; let us see whether it does not become exclusive in the national government, simply upon the principle stated under the last head. From the very nature and organization of the general or national government, it is vested with the sole jurisdiction over all matters of a national character, and of external concern. The states, by the adoption of the existing constitution, have become divested of all their national attributes, except such as relate purely to their interpal concerns. They are not known to foreign governments as states, nor can they properly be distinguished by them from the mass of this nation. Every question, then, which can arise, and to which a foreign power is a party, or in relation to which any correspondence with such power becomes necessary, belongs to the government of the nation. In short, as to all such matters, we are one and indivisible ; precisely the same as if we had no separate states, nor any authorities in the country except those of the Union. Can it be denied, that the demanding and surrendering of fugitives, as between different countries, is a matter of national and of external concern ? The demand is made by the government of one country, upon that of another country, and the surrender made in compliance with such demand, is most clearly an act performed at the instance, and for the benefit, of a foreign power. And if this is a mere matter of national comity, and not of obligation, as I believe I have satisfactorily shown, the interference of the states would be, if possible, still more improper and incompatible. Some states might practise upon one principle, and some upon another ; which might lead to an entire want of uniformity in their proceedings, even as to the same foreign power. The views and plans, too, of the national government in relation to the subject, would always be subject to be frustrated 479 550 SUPREME COURT [Jan’y’ Holmes V. Jennison. and defeated by the action of the states ; the consequences of all which could scarcely fail to be highly mischievous, if not actually dangerous. Some of the writers who assert the existence of the obligation referred to, go so far as to say, that a refusal to surrender a fugitive may be cause of war. But has a state the power in this way to involve the whole nation in a foreign war? Or let us suppose, that one of our states should demand a criminal from a foreign government, and the lattei’ refuse a compliance, would the state in that case have the right to declare war? On whose behalf, would she make such declaration ? On hei’ own, or on that of the national government ? The moment we admit, that a state can act upon a matter of this kind, we are unavoidably led into these difficulties. *5511 *^or with the duty or obligation to surrender, is coupled the power -* to demand, and to this power follows the right to enforce such -demand. Who, then, can, for an instant, yield his assent to a proposition so absurd and so dangerous ? From what I have already said, it appears to me, there can be no room for an argument, that the states may severally act upon the subject, until the national government shall have acted, or until the two powers come in competition with each other. If this were to be the rule, then, the United States, by entering into regulations with some foreign nations, would deprive the states of their powers with regard to such nations, while they would remain as to other countries, and might be exercised upon entire distinct principles from those adopted by such regulations. Some states, too, as already stated, might decide one way, and some another way ; so that we might have between the national and the state governments^ several different and contradictory practices in relation to the same matter. It follows, therefore, that this is a power which, independently of its being purely of a national and external character, is not susceptible of being divided up among the national and state governments, or of being concurrently exercised between them. But I apprehend, that the states are prohibited by the constitution from acting upon this subject. The powers of war and peace, and of making treaties, are conferred upon the general government ; and at the same time, expressly prohibited to the states. Every incident, therefore, which follows the grant, is equally included in the prohibition ; and thus is the whole subject of the foreign relations of the country placed under the exclusive juris-■diction of the government of the Union. That the matter now in question is necessarily one of foreign intercourse, and may even call into action the war-power ; or, at any rate, that it is peculiarly proper for the exercise of the treaty-making power ; appears so clear, that I will add nothing upon that point to what has already been said. If it should be said, that although the United States have the power to regulate this subject by treaty, yet that until they do so, the states, by making surrenders, do not violate the constitution of the United States ; the answer, in my judgment, is easy and plain. If the United States can make a treaty for the surrender of fugitives, generally, they can make one for the surrender of a particular person ; and the power to agree to make the surrender, implies the power to refuse it. Well, suppose, they should refuse to enter into such a treaty, in a particular case, from a conviction that the person in question ought not to be surrendered, and a state should under- 480 1840] OF THE UNITED STATES, 451 Holmes v. Jennison, take to deliver up the same person, upon the ground, that the general government had made no treaty touching the case ; would not this be a violation of the constitution ? And would it not be equally so, where the arrangement should be refused by our government, for some special reason arising out of our intercourse with the foreign power applying for it ? The ■ general government alone understands the state of our relations with each foreign government, *and therefore, can alone know how to act, in a r* „ case of this kind, towards each one of them. And it would be extra-ordinary, that there should be no way to prevent the states from interfering and disconcerting the action and intentions of the general government, in a matter so essentially connected with our foreign intercourse, except for the United States actually to make a treaty on the subject. But there are even some opinions, that a fugitive from justice cannot be delivered up to a foreign government, in any other way than by treaty. Upon this principle, it would certainly seem, that the subject, as a direct and necessary consequence, belonged, by the constitution, exclusively to the treaty-making power. For it wrould be a singular supposition, that the states are prohibited, from making treaties with foreign powers, and yet not prohibited from doing those acts in relation to such powers, which can only be performed through the intervention of treaties. And what measure of action by the general government, according to the doctrine against which I am contending, would bring the constitution into actual operation upon the states? Would a treaty of the United States with some foreign power, for the mutual surrender of persons charged with murder, leave the states at liberty to make surrenders to the same power for forgery, or any other crime less than murder? I hardly think this will > be contended for by any one ; and yet the case, in my judgment, would stand upon the same ground, as when the United States refused to make a treaty to deliver up for any offence whatever. If the mere negative action of the general government, in part, should preclude the states to the same extent, why should not the negative action in whole, have the effect to exclude them altogether? It may, perhaps, be said, that the determination of the general government to surrender for one crime, was acting upon the subject, and therefore, precluded the states from surrendering for any crime ; as well those left untouched, as the one provided for. But if the general government, from motives of policy, and for reasons deemed sound, should determine to make no surrenders at all, to some particular power, why should not this determination have the same effect as the other ? Mr. Jefferson, in his letter to Mr. Genet, said : “ When the consular convention with France was under consideration, this subject was attended to ; but we could agree to go no further than is done in the ninth article of that instrument, where we agree mutually to deliver captains, officers, marines and sailors.” Can it, with reason, be contended, that after that determination, it was in the power of the individual states to deliver up to the French government fugitives charged with offence?#against its laws ? It will be further seen, that the states are prohibited even from entering, ; without the consent of congress, into “ any agreement or compact with ' another state, or with a foreign power.” Now, can it with any propriety be said, that a state can act upon this subject, and at the instance of a foreign government, when, at the same time, she is prohibited from entering into J 4 Pet.—31 481 SUPREME COURT Holmes v. Jennison. [Jan’y ' *553 any agreement or compact *with such government in relation to the same ? Certainly, the power to act implies the power to regulate the manner of action. If one party has a duty or obligation to perform towards another, the two ought to have aright to come to some agreement or understanding as to the way or manner of performing such duty or obligation Is not this so plain, that it cannot be misunderstood by a person of the most ordinary capacity ? And, indeed, should not the very order of surrender, made at the instance of a foreign power, be deemed to constitute an agreement to make such surrender ? What else can you call it, where one party asks the performance of an act, and the party applied to consents, but an. agreement to do the thing required ? If, then, the .subject in question does not belong exclusively to the national government, it does not belong to it at all. For, if so vested, it is-because it appertains to the foreign intercourse of the country ; and is necessarily exclusive. But if not so vested, then it is among the reserved powers-of the states, and remains exclusively with them. If it is a reserved power of the states, it will at once be seen, that all that has been done in relation to it, by the national government, from the adoption of the constitution to-this time, has been void and unconstitutional. The 27th article in Jay’s treaty was void. The surrender, under it, of Robins, alias Nash, was, of course, unauthorized. And all the negotiations and correspondence which have taken place upon the subject, during this whole time, have been without any authority. Yet nothing of this kind appears ever to have been contended for, or even suggested. The case of Robins was largely and warmly discussed in the house of representatives of the United States, at the time of his surrender, or soon afterwards ; and among all the objections raised in regard to it, no question appears to have been made of the authority of the-national government over the subject, nor a suggestion that the states had any concern with it. * Again, it could only be upon the ground of connecting the subject with the right of the states to regulate their internal police, that it could be supposed to be included in their reserved powers. But none of the writers on public law have treated this question as one at all connected with the internal police of a country, or with any internal power whatever. On the contrary, it has been uniformly ranked among the questions of external and foreign concern ; and is spoken of only when treating of the relations betwen different countries. And in the case of the City of New York n. Miln, ll Pet. 105, the police powers of the states were fully examined and defined by this court; and I think it will not be denied, that they were extended to their utmost limits. But at the same time, it will be perceived, that the subject now under discussion was not embraced by any of the principles declared to be applicable to those powers. The state law in that case had its operation, and its whole operation, within the territory and jurisdiction of New York. It neither led, nor could lead, to an intercourse or correspondence with any foreign power whatever. And it had, moreover, no reference * _ *to the commission of crimes, within or without the state, nor to the J arrest of criminals of any description. It is true, that the legislature of the state of New York, several years ago, enacted a law authorizing the governor of the state, in his discretion, to surrender fugitives from foreign countries. But public opinion has lately 482 1840] OF THE UNITED STATES. 564 Holmes v. Jennison. manifested itself strongly against the validity of the law ; and the governor, during the last year, refused to act undei- it, upon the express ground, that I the national government had exclusive jurisdiction over the subject, and 1 consequently, that the act of the legislature was unconstitutional and void. But secondly, if it should be admitted that a state, by some police regulations within her power to make, could effect the expulsion from her jurisdiction of a person charged with a crime in another country ; still the act of the governor of Vermont, in the present case, was not of that character, but was a direct act of foreign intercourse, and therefore, illegal and void. The order for the arrest of the plaintiff in error was not founded upon any law of the legislature of Vermont for the regulation of her internal police ; nor, in fact, upon any authority whatever proceeding from the state. On the contrary, it is manifest from the order itself, and has always been admitted, that the governor proceeded upon the ground of a supposed obligation on the part of the state, arising under the laws of nations, to surrender fugitives from justice, on the application of foreign governments ; and a belief that he had a right, as the executive of the state, to fulfil such obligations, without any authority for the purpose, derived from the constitution or legislative acts of the state. But if any further proof were wanting, that the governor of Vermont was not acting, nor authorized to act, merely by virtue of his office, in the execution of any internal police regulation, it would be sufficient to point to the article in the constitution of that state, which declares, that “ the people of this state, by their legal representatives, have the sole, inherent and exclusive right of governing and regulating the internal police of the same.” Neither has there been any practice or usage of the state, upon which the act in question can be attempted to be justified. Not a single person has ever been surrendered on the part of the state ; and it appears by the record; that in the year 1825, there was a positive refusal to give up two men who were demanded, as thieves, by the governor of Canada, and that the decision of the executive of Vermont was approved by the president of the United States. And here I beg the court to understand, that this case is not referred to, so far as it respects the decision of the then governor of Vermont, as an authority in point of law, but merely as one fact, among others, in order to exclude any pretence of an authority from usage for the proceeding in this case. And equally certain is it, that so far as it regards the surrender of American citizens, there could be no reciprocity on the part of Canada ; since, by the laws of that province, no subject of the realm can be sent prisoner out of the country. It was upon this ground, *that Lord Aylmer, the governor of Canada, in the year 1833, refused to *-surrender, on the application of the governor of New York, four men who had come over the line, and barbarously murdered a young woman in the town of Champlain. We have now arrived at the third and last point ; which is, that admitting a state to possess the right to act upon the subject of surrendering to foreign governments, fugitives from justice, yet that the sovereign power of the state must be brought into action, and the surrenders made under a regular law or proceeding of such power ; and that as the act now complained of was without any such authority, it was a violation of the provision 483 555 SUPREME COURT [Jan’y Holmes v. Jennison. in the constitution of the United States which declares, that “ no person shall be deprived of life, liberty or property, without due process of law.” But here arises the question, whether this provision in the constitution is applicable to the states ; or, in other words, whether it constitutes a protection against the unlawful exercise of state power. I am aware, that it has been decided by this court, in the case of Barron v. City of Baltimore, 1 Pet. 243, that the amendments to the constitution of the United States, commonly called the bill of rights, were simply limitations of the powers of the general government, and had no effect upon the state governments. But as the decision is a recent one, and stands alone, I trust the court will attend to me, while I submit a few remarks upon a question so important and interesting. Let me begin, by observing, that the rule of construction which can generally be resorted to, in order to determine the sense of any provision in the original constitution, cannot be applied to the articles of amendment. The constitution itself was one connected work, and was the result (if I may be allowed the expression) of a concentration of mind ; and in deciding upon one .part of it, reference may be had to other parts, and the whole so construed as consistently to stand together. But the case is very different as it regards the amendments ; the'se have little or no connection with each other, varying both in their character and in their terms, and were originally proposed from different quarters, and with different objects. Each article, therefore, if not each clause, should be construed simply according to its own nature, and the terms in which it may be expressed. With the utmost deference, I beg leave to observe, that in my humble judgment, an error was committed by the court, in the case referred to, in supposing all the articles of amendment to be in the nature of limitations of governmental power, or to have been so intended, at the time of their adoption. When we speak of a limitation of power, we have naturally in view some power which, without such limitation, might be lawfully exercised ; and of this character are the prohibitions in the original constitution, whether relating to the general government, or to the states. That some of the amendments are of the same character is unquestionably true. But there are others which are not so ; among which is the one containing * *the clause declaring that “ no person shall be deprived of life, liberty J or property, without due process of law.” These latter cannot be considered as limitations of power, but are to be understood as declarations of rights—of absolute rights, inherent in the people, and of which no power can legally deprive them. The right of personal liberty has existed ever since the first creation of man, and is incident to his nature. It has been recognised from the earliest organization of society, and the first institution of civil government, until the present time. And for the plain reason, that this sacred right is beyond the reach of all legitimate power, it cannot properly be the subject of a limitation to the action of a regular government. Whether the declaration of this right, as well as of others, was made a part of the constitution of the United States, with a view, principally, of guarding it from violations by the general government, it is not material to inquire. We find it there, and the only question now is, as to the extent of its operation. That the clause in question (and indeed the whole article in which it 484 1840] OF THE UNITED STATES. 556 Holmes v. Jennison. appears) embraces every person within the limits and jurisdiction of the whole Union, will not be denied. All that remains to be determined is. whether it is to be construed as leaving the states free to encroach upon the right which it declares every one shall enjoy ; or whether it is to be understood as recognising and adopting the principle that no power from any quarter can do so. In other words, whether the clause was inserted because it was deemed more proper for the states than for the general government to deprive a person of his life or liberty without law ; or, whether, to promulgate a general command against the violation of a right possessed by a title above all legitimate governmental power. If it should be supposed, that in forming the constitution, no protection was wanted from the general government against the illegal exercise of state power, the answer is, that this, though generally true, is by no means universally so. There are several restrictions upon the states, in the constitution, for the benefit and security of the people ; ano that, too, where the same powers are prohibited to the general government. One, for example, is, that no state shall pass ex post facto laws. And this is, for the reason, that no person ought to be punished by any government, for an act made criminal after the fact. Yet, surely, this principle is not mote worthy of being guarded by the general government, than that a person shall not be twice punished for the same offence ; or that he shall not be deprived of his life or liberty, except by due course of law. But we find that the United States stand pledged in the constitution to guaranty to every state in the Union a republican form of government, and to protect each of them against domestic violence ; thus becoming directly and deeply interested that state power shall not be unlawfully or improperly exercised. It may, with truth, be affirmed, that most of the amendments to the constitution contain principles which lie at the very foundation of civil liberty, and are most intimately connected with the dearest ^rights of the people. Principles which should be cherished and enforced by a just and parental gov- L ernment, to the utmost extents of its authority : principles which, in reality, like those proclaimed from the burning mount, deserve to be diligently taught to our children, and to be written upon the posts of the houses, and upon the gates. It is true, that most nf the states have incorporated into their constitutions the same principles ; though several of those instruments do not contain the important provision relied upon in this ease. But this furnishes no argument against allowing them the force in the constitution of the United States for which I contend. Some of the state constitutions also contain the prohibition against passing ex post facto laws; but does this weaken the authority of the same restriction upon the states in the general constitution ? And is it not, moreover, very proper, that the state constitutions should themselves embrace all the provisions necessary to a good government, whether they are needed for the present, or not ; since it cannot be foreseen, what further amendments or alterations may take place in the constitution of the United States. But the distinction which I have endeavored to establish between the limitations of power and the declarations of rights, is adopted in the clearest manner in the constitution itself. The ninth article of the amendments declares, that “the enumeration in the constitution of certain rights, shall 485 SUPREME COURT Holmes v. Jennison. [Jan’y 557 not be construed to deny or disparage others retained by the people.” And the tenth article provides, that “ the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the. states, respectively, or to the people.” Here we see, that the framers of these amendments had no idea of confounding the limitations of power, and the declarations of rights ; but treated each as distinct from the other. If the amendments had treated only of the former, certainly, the reservation, both to the states and to the people, in the tenth article, would have answered every purpose. But the ninth article was deemed necessary, as it regarded the rights declared to exist, in order to prevent the people from being deprived of others by implication, that might not he included in the -enumeration. It appears clear to my mind, then, that the provision in the constitution to which I have referred, instead of limiting the powers of the general government, directly calls into action those powers, for the protection of the citizen. That it forms a part of the supreme law of the land by which all the authorities of the states, as well as those of the Union, are bound. . And that the establishment of the contrary doctrine would essen- -tially weaken the security of the people ; since it would leave without the protection oi the paramount and superintending power of the Union, the great and fundamental right of personal liberty. The question recurs, whether the plaintiff in error was arrested and is held, “ without due process of law and thus in violation of the constitu-tion of the United States. I have already said, with *regard to this J part of the case, that the sovereign power of the state of Vermont alone could authorize the surrender. I beg now to add, that I deem this position to be maintainable, whether it depends upon comity or upop obligation ; though, perhaps, its defence might be thought most complete upon the first ground. If there is nothing upon the subject, beyond comity, then it rests entirely in the discretion of the state, as to the cases in whiph she will make surrenders, as well as to the conditions upon which they shall take place ; and, indeed, whether she will make surrenders at all. How, then, but through the sovereign power of the state, can a discretion like this be regulated or exercised ? And has it not always been with us a fundamental doctrine, that discretion in rulers, although the law of tyrants, is the scourge of a free people ? In a despotic form of government, the sovereign power is the will of the monarch, who can act, in every instance, as may suit his pleasure. But can the governor* of one of our states, of his own mere will, regulate and act upon this comity ? Can he, without any authority from the constitution, or the legislative power of his state, issue an order for the arrest and delivery to a foreign government of any person whatever ? If he can do this, then is the liberty of the citizen wholly at his arbitrary disposal. Does not the bare statement, however, of this point, carry along with it an argument, so unanswerable, that nothing further need be said upon it ? But it is a fact, that the only ground upon which the order for the surrender in this case has ever been attempted to be justified, was that there existed, by the laws of nations, a positive obligation on the part of the state of Vermont, to make surrenders in like cases ; and that the governor of the state, by virtue of his office, had the power to carry into execution that obligation. Let us see, whether this doctrine will stand the test of reason. 486 1-840] OF THE UNITED STATES. 558 Holmes v. Jennison. The laws of nations have no force over the people, individually, in any country, but only regulate the conduct of nations, as such, towards each, other. If any duties or obligations are created by those laws, as between one country and another, each of these owes duties or obligations in her collective capacity, and can only perform them as its own sovereign authority may direct or permit. In an absolute government, as already stated, the i sovereignty centres in the monarch, and everything is directed by him, according to his own arbitrary will. But in are public, the sovereign power resides in the people, or is lodged where they have placed it; and the proceedings must always be in conformity with the principles of the government. It follows, therefore, that when it becomes necessary, in the performance of national duty or obligation towards a foreign power, to interfere with individuals, it can be done only through laws emanating from the ^sovereign authority of the state where they reside, or happen to be. For as the obedience of individuals is due only to those laws, so are they, at the •same time, under their protection, and can only be reached through them. The statement of a *plain and familiar case will be sufficient to exem- [*559 plify this proposition. Our government deemed the country to be L under an obligation, by the laws of nations, to observe neutrality in the late 'Canadian revolt, and to prevent our citizens from taking part in the contest ; but did it attempt, in the performance of this duty, to order personal arrests, or to meddle with the liberty of the people, without laws of congress passed expressly for the purpbse ? Certainly not! The plaintiff in error, at the time of his arrest, was under the protection of the laws of the state of Vermont. In the constitution of that j state, it is declared, that “ no person can be justly deprived of nis liberty, 'except by the laws of the land or the judgment of his peers ; ” and by an existing act of the legislature of the state, it is provided, that “ no person’s body shall be restrained or imprisoned, unless by authority of law.” No action,* moreover, has taken place by the legislature of the state, upon the subject of the surrender of fugitives to foreign powers. Well, how are the people to understand these provisions ? To what laws, or to the laws of what country, are they directed for protection ? Why, most surely, to the laws of the same state ; and such as may be known and understood by the people as laws for their immediate direction and government. Laws, in short, passed by the proper authorities for the regulation of the internal and civil concerns of the state. But a new and extraordinary doctrine has been proclaimed, and acted upon in this case. A doctrine which, if true, would prove that the people ' have been laboring undei’ a delusion, and that their fancied security was but an idle dream. That they can no longer look to the general and state ; ■constitutions, and to the most positive legislative injunctions, for protection And defence. That they cannot, as they have been taught to suppose, lay i their hand upon the book containing them, and say—This is our political Bible ; this is the rock of our political salvation ; upon which we can rest in security, even against the blowing of the winds, or the coming of the storms. No ! on the contrary, they are now directed to Grotius, to Puffen--dorf and Vattel, to learn what measure of personal liberty they are entitled to, and under what circumstances they can repose in safety in the midst of their families. SUPREME COURT Hol.i.es v. Jennison. [Jan’y 559 It appears, that the King of England, with all the royal prerogatives, does not possess the power which is claimed for the governor of the state of -Vermont. The provision of the constitution of that state to which I have referred, was copied from the great charter of English liberty, and has been there understood in a different sense. Sir W. Blackstone, in the first volume of his celebrated Commentaries, makes the following remarks : “ A natural and regular consequence of this personal liberty is, that every Englishman may claim a right to abide in his own country so long as he pleases ; and not to b.e driven from it, except by the sentence of the law. No power on earth, but the authority of the parliament, can send any subject of England out of the land against his will; no! not even a criminal. To * , th*8 PurPose> th® great charter declares, *tbat no freeman shall be J imprisoned, unless by the judgment of his peers, or by the law of the land.” In Canada, the governors have uniformly refused to deliver up British subjects, because their habeas corpus act protects them. In order to place this point in a clear light, I will give an extract or two from the letter already referred to, of Lord Aylmer, to Governor Marcy, dated the 27th of May 1833 : “ I have been under the necessity of delaying an answer to your Excellency’s letter of the 4th of April last, in consequence of objections raised by the attorney-general of the province, to the surrendering of the four individuals charged with the murder of Elizabeth Stevenson ; that officer being of opinion, that it was not competent to the executive, in the absence of any regulation by treaty, or legislative enactment on the subject, to dispense with the provision in the habeas corpus act.” Again, he * says, “ the subject has received every consideration, and I very much regret * to say, that the opinion of the attorney-general is confirmed by a majority of those who have been called upon.” We have seen, then, that no president of the United States, no governor of Canada, and lastly, no king of England, has ventured to act in a case of this kind, except by legislative authority, or by treaty, which is tantamount to a law. Yet we have lived to witness the attempt of the governor of one of the states in this land of freedom, to break over all legal and constitutional restraints, and of his own will and authority, to exercise this arbitrary, this tremendous power, over the liberties of the people. Let me here declare, that Ido not mean to be understood as contending, that the clause in the constitution of the United States which is relied upon,, can be brought to bear upon every unlawful or irregular act in the course -of judicial or other proceedings under the laws of the states, by which a person might be deprived of his liberty, and for which he might bring an action of false imprisonment, or have his habeas corpus, before the proper tribunals or authorities. But it certainly does appear to me, that when the executive of a state, in the exercise of a governmental power, and simply by virtue of his office, undertakes to issue an order for the arrest and transportation of an individual, for a cause over which the state has invested his department of the government with no authority or jurisdiction whatever; this court has, by its appellate power, under the 25th section of the Judiciary act of 1789, the right to interpose its protection, and to enforce the provision in question. If I have succeeded, then, in showing that the act now complained of 488 1840] OF THE UNITED STATES. 56d Holmes v. Jennison. was wholly without law or authority ; it follows, that the position has been sustained, even admitting the jurisdiction of the states, yet that the plaintiff in error has been “deprived of his liberty, without due process of law,’* and therefore, in violation of the constitution of the United States. And thus have I completed the observations which I designed to make upon the several questions involved in the case before the court. *Taney, Ch. J.—The court have held this case under consideration r Holmes v. Jennison. same subject ; that is to say, it is employed altogethei* in enumerating the rights surrendered by the states ; and this is done with so much clearness . and brevity, that we cannot for a moment believe, that a single superfluous word was used, or words which meant merely the same thing. When, therefore, the second clause declares, that no state shall enter into li any agreement or compact ” with a foreign power, without the assent of congress, the words “agreement ” and “ compact,” cannot be construed as synonymous with one another ; and still less can either of them be Jield tornean the same thing with the word “ treaty ” in the preceding clause, into which the states áre positively and unconditionally forbidden to enter ; and which even the consent of congress could not authorize. In speaking of the treaty-making* power conferred on the general government, we have already stated our opinion of the meaning of the words used in the constitution, and the objects intended to be embraced in the -power there given. Whatever is granted to the general government is forbidden to the states, because the same word is used to describe the power denied to the latter, which is employed in describing the power conferred on the former; and it is very clear, therefore, that Vermont could not have entered into a treaty with England, or the Canadian government, by which the state agreed to deliver up fugitives charged with offences committed in Canada. But it may be said, that here is no treaty ; and, undoubtedly, in the sense in which that word is generally understood, there is no treaty between Vermont and Canada. For when we speak of “ a treaty,” we mean an instrument written and executed with the formalities customary among • nations ; and as no clause in the constitution ought to be interpreted differ- -ently from the usual and fair import of the words used, if the decision of this case depended upon the word above mentioned, we should not be prepared to say, that there was any express prohibition of the power exercised by the state of Vermont. But the question does not rest upon the prohibition to enter into a treaty. In the very next clause of the constitution, the states are forbidden to enter into any “ agreement” or “ compact” with a foreign nation ; and as these words could not have been idly or superfluously *5721 *used by the framers of the constitution, they cannot be construed to J mean the same thing with the word treaty. They evidently mean something more, and were designed to make the prohibition more comprehensive. A few extracts from an eminent writer on the laws of nations, showing the matter in which these different words have been used, and the different meanings sometimes attached to them, will, perhaps, coutribute to explain the reason for using them all in the constitution ; and will prove that the-most comprehensive terms were employed in prohibiting to the states all intercourse with foreign nations. Vattel, p. 192, § 152, says, “A treaty, in Latin fwdus, is a compact made with a view to the public welfare, by the superior power, either for perpetuity, or for a considerable time.” § 153. “ The compacts which have temporary matters for their object, are called agreements, conventions and pactions. They are accomplished by one single actj and not by repeated acts. These compacts are perfected in their execution, once for all; treaties receive a successive execution, whose duration equals that of the treaty.” § 154. Public treaties can only be made 498 1840] OF THE UNITED STATES 572 Holmes v. Jennison. by the “ supreme power, by sovereigns who contract in the name of the state. Thus, conventions made between sovereigns respecting their own private affairs, and those between a sovereign and a private person, are not public treaties.” § *206, p. 218. “ The public compacts called conventions, articles of agreement, &c., when they are made between sovereigns, differ from treaties only in their object.” After reading these extracts, we can be at no loss to comprehend the intention of the framers of the constitution in using all these words, “ treaty,” “ compact,” “ agreement.” The word “ agreement,” does not necessarily import any direct and express stipulation ; nor is it necessary that it should be in writing. If there is a verbal understanding, to which both parties have assented, and upon which both are acting, it is an “ agreement.” And the use of all of these terms, “ treaty,” “ agreement,” “compact,” show that it was the intention of the framers of the constitution to use the broadest and most comprehensive terms ; and that they anxiously desired to cut off all connection or communication between a state and a foreign power ; and we shall fail to execute that evident intention, unless we give to the word “ agreement” its most extended signification ; and so apply it as to prohibit every agreement, written or verbal, formal or informal positive or implied, by the mutual understanding of the parties. Neither is it necessary, in order to bring the case within this prohibition, that the agreement should be for the mutual delivery of all fugitives from justice, or for a particular class of fugitives. It is sufficient, if there is an agreement to deliver Holmes. For the prohibition in the constitution applies not only to a continuing agreement, embracing classes of cases, or a succession of cases, but to any agreement *whatever. An agreement r^., to deliver Holmes is, therefore, forbidden ; and as much so, as if it L were an agreement to deliver all persons in the same predicament. Is there not, then, in this case an agreement on the part of Vermont to deliver Holmes ? And is he not detained in custody, to be delivered up, pursuant to this agreement ? It must be remembered, that states can act only by their agents and servants ; and whatever is done by them, by authority of law, is done by the state itself. The supreme court of Vermont, as we have already mentioned, have decided, that the warrant of the governor, and the detention of Holmes under it, are authorized by law. Consequently, the seizure for the purpose of delivery, the agreement on the one side to deliver, and on the other to receive, is an agreement made by the authorized servants of the state ; and, of course, in contemplation of law, made by the state itself. The record before us does not state the application of the governor of Canada for the arrest and delivery of Holmes, although, from the nature of the transaction, doubtless, such an application was made. As it does not, however, appear in the record, we do not act upon the supposition that such a demand was made, nor consider it as in the case. The question is not, whether there was a demand, but whether there was an agreement with a foreign power ; and the governor’s warrant, of itself, imports an agreement with the Canadian authorities. It directs Holmes to be delivered “ to William Brown, the agent of Canada, or to Such person or persons as by the laws of the province are authorized to receive him.” How is he to be delivered, unless they accept? And if the authorities of Vermont agree to 499 573 SUPREME COURT [Jan’y Holmes v. Jennison. deliver him, and the authorities of Canada agree to accept, is not this an agreement between them ? From the nature of the transaction, the act of delivery necessarily implies a mutual agreement. Every one will admit, that an agreement, formally made, to deliver up all offenders who, after committing crimes in Canada, fly for shelter to Vermont, would be unconstitutional on the part of the state. So, an agreement, after Holmes had escaped to Vermont, written and signed by the state and provincial authorities, by which the governor of Vermont engaged to seize him and deliver him up to the Canadian officers, would, unquestionably, be unconstitutional. Yet precisely the same thing is done in this case, without a regular and formal agreement. It is, in, some way or other, . mutually understood by the parties, that he shall be seized and delivered up ; and he is seized, accordingly, in order to be delivered up, pursuant to this understanding. Can it be supposed, that the constitutionality of the act depends on the mere form of the agreement? We think not. The constitution looked to the essence and substance of things, and not to mere form. It would be but an evasion of the constitution, to place the question -upon the formality with which the agreement is made. The framers of the * „ . constitution manifestly believed, *that any intercourse between a state °1 J and a foreign nation was dangerous to the Union; that it would open a door of which foreign powers would avail themselves, to obtain influence in separate states. Provisions were, therefore, introduced, to cut off all negotiations and intercourse between the state authorities and foreign nations. If they could make no agreement, either in writing or by parol, formal or informal, there would be no occasion for negotiation or intercourse between the state authorities and a foreign government. Hence, prohibitions were introduced, which were supposed to be sufficient to cut off all communication between them. But if there was no prohibition to the states, yet the exercise of such a power on their part is inconsistent with the power upon the same subject •conferred on the United States. It is admitted, that an affirmative grant of a power to the general government, is not, of itself, a prohibition of the same power to the states ; and that there are subjects over which the federal and state governments exercise concurrent jurisdiction. But, where an authority is granted to the Union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant, there the authority to the federal government is necessarily exclusive ; and the same power cannot be constitutionally exercised by the states. The exercise of the power in question by the states, is totally contradictory and repugnant to the power granted to the United States. Since the expiration of the treaty with Great Britain, negotiated in 1793, the general government appears to have adopted the policy of refusing to surrender persons, who, having committed offences in a foreign nation, have taken shelter in this. It is believed, that the general government has entered into no treaty stipulations upon this subject, since the one above mentioned ; and in every instance where there was no engagement by treaty to deliver, and a demand has been made, they have uniformly refused, and have denied the right of the executive to surrender, because there was no treaty, and no law of congress to authorize it. And acting upon this principle throughout, they have never demanded from a foreign government any one who fled 500 1840] OF THE UNITED STATES. A 74 Holmes v. Jennison. from this country in order to escape from the punishment due to his crimes. This being the policy of the general government, is not the possession of the power by the states totally contradictory and repugnant to the authority conferred on the federal government ? What avails it, that the general government, in the exercise of that portion of its power over our foreign relations, which embraces this subject, deems it wisest and safest for the Union, to enter into no arrangements upon the subject, and to refuse all such demands ; if the state in which the fugitive is found, may immediately reverse this decision, and deliver over the offender to the government that demands him ? If the power remains in the states, the grant to the general government is nugatory and vain ; and it would be in the power of any state, to overturn and defeat the decisions of the general government, *upon a subject admitted to be within its appropriate sphere of action ; and to have been clearly and necessarily included in the L treaty-making power. The power in question, from its nature, cannot be a concurrent one, to be exercised both by the states and the general government. It must belong, exclusively, to the one or the other. If it were merely the power to surrender the fugitive, it might be concurrent ; because either might seize and surrender, whose officers could first lay hold of him. But the power in question, as has already been stated, is a very different one. It is the power of deciding the very delicate question, whether the party demanded ought, or ought not, to be surrendered. And in determining this question, whether the determination is made by the United States or a state, the claims of humanity, the principles of justice, the laws of nations, and -the interests of the Union at large, must all be taken into consideration, and weighed, when deliberating on the subject. Now, it is very evident, that the councils of the general government and of the state may not always agree on this subject. The decision of the one may stand in direct opposition to the decision of the other. How can there be a concurrent jurisdiction in such a case ? They are incompatible with each other, and one must yield. And it being conceded on all hands’, that the powei* has been granted to the general government, it follows, that it cannot be possessed by the states ; because its possession on their part would be totally contradictory and repugnant to the power granted to the federal government. Again, how are the states to exercise this power? We must not look at the power claimed, as if it were confined to fugitives from Canada into the bordering states. The constitution makes no distinction in that respect; and if the state has the power in this instance, it has the same power in relation to fugitives from England, or France or Russia. Now, how is j. state to hold communications with these nations? The states neither send nor receive ambassadors to or from foreign nations. That power has been expressly confided to the federal government. How, then, are negotiations to be carried on with a state, when a fugitive is demanded ? Are they to treat upon this subject with the ambassador received by the United States? And is he, after being refused by the general government, to appeal to the state to reverse that decision? Such, certainly was not the intention of the framers of the constitution, and cannot be its true construction. Every part of that instrument shows, that our whole foreign intercourse was 501 575 SUPREME COURT [Jan’y IJolmes v. Jenni son. intended to be committed to the hands of the general government ; and nothing shows it more strongly than the treaty-making power, and the power of appointing and receiving ambassadors; both of which are immediately connected with the question before us, and undoubtedly belong exclusively to the federal government. It was one of the main objects of the constitution to make us, so far as regarded our foreign relations, one people, and one nation ; and to cut off all communications between foreign governments, and the several state *authorities. The power now -* claimed for the states, is utterly incompatible with this evident intention ; and would expose us to one of those dangers, against which the framers of the constitution have so anxiously endeavored to guard. But it may be said, that the possession of the power to surrender fugitives to a' foreign nation by the states, is not incompatible with the grant of the same power to the United States ; and that in the language of this court, in the case of Sturges v. Crowninshield, 4 Wheat. 196, “it is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states.” And the case before ns may, perhaps, be likened to those cases in which affirmative grants of power tc the general government, have been held not to be inconsistent with the exercise of the same powers by the states, while the power remained dormant in the hands of the United States. This principle is, no doubt, the true one, in relation to the grants of power, to which it is applied in the case above mentioned of Sturges v. Croninshield. For example, the grant of power to congress to establish “ uniform laws on the subject of bankruptcies throughout the United States,” does not of itself carry with it an implied prohibition to the states to exercise the same powers. But in the same case of Sturges v. Crowninshield, another principle is stated, which is equally sound, and which is directly applicable to the point before us ; that is to say, that it never has been supposed, that the concurrent power of state legislation extended to every possible case in which its exercise had not been prohibited. And that whenever “the terms in which a power is granted to congress, or the nature of the power requires that it should be exercised exclusively by congress ; the subject is as completely taken from the state legislatures, as if they had been expressly forbidden to act on it.” This is the character of the power in question. From its nature, it can never be dormant in the hands of the general government. The argument which supposes this power may be dormant in the hands of the federal government, is founded, we think, in a mistake as to its true nature and character. It is not the mere power to delivei’ up fugitives from other nations upon demand ; but the right to determine whether they ought or ought not to be delivered, and to make that decision, whatever it may be, effectual. It is the power to determine whether it is the interest of the United States to enter into treaties with foreign nations, generally, or with any particular foreign nations, for the mutual delivery of offenders fleeing from punishment from either country ; or whether it is the interest and true policy of the United States, to abstain altogether from such engagements, and to refuse, in all cases, to surrender them. In the case first above supposed, it will be admitted, that if the United States have entered into such treaties, the states could not interfere, be- 502 1840] OF THE UNITED STATES. 576 Holmes v. Jennison. cause the United States will then have exercised the power; and .the exercise of the same power by the states would be altogether contradictory and repugnant. It is in the latter case, where they *refuse to treat and refuse to surrender, that the power is supposed to be dormant, l ^<7 . and not exercised by the federal government. But is not this a mistake as * to the nature of the power? And is it not as fully exercised by the decision not to surrender, as it could be by a decision the other way ? The question to be decided is a question of foreign policy ; committed, unquestionably, to the general government. The federal government has also the power to declare war ; and whenever it becomes a question whether we are to be at peace or at war, undoubtedly, the general government must determine that question. And if congress decides that the honor and interest of the country does not require war, and, on that account, refuses to declare it, is not this an exercise of its power over the subject ? And could it be said, that the power was a dormant power, because war had not been de-•clared. There is, however, an express prohibition to the states to engage in war ; and perhaps the case of ambassadors would be more analogous to the one under consideration. The power of appointing “ ambassadors, othei- public ministers and consuls,” is given to the federal government; and there is no prohibition to the exercise of the same power by the states. Now, if the general government deemed it to be the true policy of the country to have no communication oi’ connection with foreign nations, by ambassadors, other public ministers or consuls ; and refused, on that account, to appoint any ; ■could it be said, that this power was dormant in the hands of the government, and that the states might exercise it ? Or if the general government . ■deemed it advisable to have no such communications with some particular foreign nation, could any state regard it as an unexercised pow*er, and therefore, undertake to exercise it ? We can readily imagine, that there may be reasons of policy, looking to the whole Union, that might induce the government to decline an interchange of ambassadors with certain foreign countries. It is not material to the question in hand, whether that policy be right or wrong. But assuming such a case to exist, can any state regard it as an unexecuted portion of the power granted to the federal goverment ; and, by appointing an ambassador or consul, counteract its designs and thwart its policy ? There can be but one answer, we think, given to this question. And yet the case before us, is in all respects like it. It is a portion of o ir foreign policy, and of our foreign intercourse. The general government must act, for it is the only nation known to foreign powers ; and as their ambassadors are accredited to the United States, and not to the states, whatever demands they have, they must address to the general government. And in every case, therefore, where an offender, such as we are speaking of, is within the United States, and the foreign government desires to get possession of him ; the demand must be made on the general government; and . they are as much bound to decide upon it, as they are upon a question of sending or receiving an ambassador, or a question of peace or war. How, ' then, can a state exercise a concurrent power, or any power on the same, ; question ? In the language *of the supreme court, in the case of Houston n. Moore, 5 Wheat. 23, li we are altogether incapable of t comprehending how two distinct wills can, at the same time, be exercised in -503 5?8 SUPREME COURT [Jan’y Holmes v. Jennison. relation to the same subject, to be effectual; and, at the same time, compatible with one another.” The confusion and disorder which would arise from the exercise of this power by the several states, is too obvious to need comment. At the present moment, when Europe is at peace, there is no strong inducement to pursue an offendei’ who has taken refuge in this country ; and very earnest efforts, therefore, are not often made to obtain possession of the fugitive. But in the ordinary course of human affairs, this cannot always be the case and if civil commotions should take place in any of the great nations of Europe, powerful inducements will often exist to pursue those who may be compelled to fly from the vengeance of the victorious party. And in case a war should break out between any of the leading governments of the old world, sufficient motives will perhaps be found to make the belligerent nations extremely anxious to obtain possession of persons who may be found in some one of the United States. And how could this great national power be exercised with uniformity or advantage, if the several states were, from time to time, to determine the question ? One would probably determine to surrender for one set of offences ; another, another. One state, perhaps, would surrender for political offences ; another would not: and one state might deliver up fugitives to one nation only ; while another state would select some other foreign nation, as the only object of this comity. Such conflicting exercises of the same power would not be well calculated to preserve respect abroad or union at home. In times of high excitement, nothing but mischief could grow out of it. Nor do we perceive any advantage that could arise to the states, at any time, from the possession of this power. It is, as we have already said, in no degree connected with their police powers ; and they can, undoubtedly, remove from their territory every description of offenders who, in the judgment of the legislature, are dangerous to the peace of the state. It may, indeed, be supposed, that along the border line which separates the Canadas from the United States, the facility of escape into another jurisdiction is a temptation to crime, and that an arrangement between the authorities of the province and the states which adjoin them, for the mutual delivery of offenders, would be advantageous to both. If such an arrangement is deemed desirable, the foresight of the framers of the constitution have provided the way for doing it, without interfering with the powers of foreign intercourse committed to the general government, or endangering the peace of the Union. Under the second clause of the tenth article of the first section of the constitution, any state, with the consent of congress, may enter into such an agreement with the Canadian authorities. The agreement would, in that event, be made under the supervision of the United * _ States, *and the particular offences defined in which the power was J to be exercised ; and the national character of the persons who were to be embraced in it, as well as the proof to be required to justify the surrender. The peculiar condition of the bordei* states would take away all just cause of complaint from other nations, to whom the same comity was not extended ; and at the same time, the proper legal safeguards would be provided, for the protection of citizens of other states, who might happen to become obnoxious to the Canadian authorities, and he demanded as offenders against its laws. They would not be left to the unlimited discretion of the 504 1840] OF THE UNITED STATES. 57» Holmes v. Jennison. states in which they may happen to be found, when the demand is made ; ’ as must be the case, if the power in question is possessed bp the states. Upon the whole, therefore, my three brothers, before mentioned, and myself, after the most careful and deliberate examination, are of opinion, that the power to surrender fugitives, who, having committed offences in a foreign country, have fled to this for shelter, belongs, under the constitution of the United States, exclusively to the federal government; and that tho authority exercised in this instance by the governor of Vermont, is repugnant to the constitution of the United States. It is, therefore, our opinion, that the judgment of the supreme court of Vermont ought to be reversed, and the cause remanded to that court; and that it be certified to them, with the record, as the opinion of this court, that the said George Holmes is entitled to his discharge, under the habeas corpus issued at his instance. In the division, however, which has taken place between the members of the court, a different judgment must be entered. Thompson, Justice.—This case comes up by writ of error from the supreme court of the state of Vermont, under the 25th section of the judiciary act of 1789. The proceedings in the state court which are brought here for review, have been already so fully stated, that it is unnecessary for me to repeat them. It is sufficient for me to state, simply, that these proceedings are founded upon a writ of habeas corpus, under which George Holmes was brought up before the supreme court, claiming to be discharged , from the custody of the sheriff, when he was held under a warrant-from the governor of Vermont, by which the sheriff was commanded to arrest the said George Holmes, as a fugitive from justice, from the province of Lower Canada, he having been there indicted for the crime of murder. In the examination of this case, I shall confine myself simply to the question, whether the case comes within the 25th section of the judiciary act, so as to give this court jurisdiction and authority to review the proceedings in the supreme court of Vermont. I do not intend to examine the question, whether the proceedings upon a habeas corpus is “ a suit,” within the meaning of this *25th section ; or whether a writ of error will lie to review proceedings upon a habeas corpus. Although the case, upon L 58(> these points, is not free from doubts ; yet, thinking as I do, that this court has not jurisdiction at all of the case, these points are of minor importance. In the case of Crowell n. Randell, 10 Pet. 391, this court reviewed all the cases which had been brought before it under the 25th section, when the question of jurisdiction was brought under the consideration of the court; which review resulted in the following conclusion : “ That it has been uniformly held, that to give this court appellate jurisdiction, two things should have occurred, and be apparent upon the record. First, that some one of the questions stated in the section did arise in the court below ; 1 and secondly, that a decision was actually made by the state court; in the manner required by the section. If both these do not appear on the record, the appellate jurisdiction fails. That it is not sufficient to show, that such question might have occurred, or such decision might have been made, in the court below. It must be demonstrable, that they, did exist, and were made. That it is not indispensable, that it should appear on the-record, in totidem verbis, or by direct and positive statement, that the ques- 505 580 SUPREME COURT [Jan y Holmes v. Jennison. lion was made, and the decision given by the court below on the very point ; but that it is sufficient, if it be clear from the facts stated, by just and necessary inference, that the question was made ; and that the court below must, in order to have arrived at the judgment pronounced by it, have ■come to the very decision of that question as indispensable to that judgment. That it is not sufficient to show that a question might have arisen or been applicable to the case, unless it is further shown, on the record, that it did arise and was applied by the state court to the case.” According to this construction of the Jaw, it must appear, that some one of the cases put in this section of the act did, in point of fact, arise, and was, in point of fact, ■decided upon in the state court. Let us test the case now before us by these rules. This record does not in any manner whatever point to the authority under which the governor of Vermont claimed to have acted. Nor is there any treaty, or law of the United States, or any particular part of the constitution alluded, to in the record, with which the power exercised by the governor is brought in conflict or decided against. In all the cases heretofore brought up under this provision in the judiciary act, the record puts the proceedings in the state court upon some specific law or authority, under which the court professed to act; and which enabled this court to examine such claim on the part of the state court, and to see whether it fell within the revising power of this court. But as the proceedings in the case, in the state court, do not point to the authority under which the governor claimed to have acted, we are left to mere conjecture upon that point. As the case stands upon this record, it is a mere exercise of power by the governor, in arresting George * -] Holmes, for the purpose *of delivering him over to some person in J Canada, authorized to receive him. This record does not show any demand, or even request, by any authority in Canada, to have this done. From anything that appears on this record, it was a self-moved action on the part of the governor, under a sense of justice ; that as he was charged with the crime of murder in Canada, and must be punished there, if anywhere, he saw fit to arrest him and send him there. Nothing appears on the record, in any manner whatever, warranting the conclusion that the state of Vermont had authorized the governor to exercise such power ; or any arrangement had been made between the state and the government of Canada upon this subject. And admitting this to have been an arbitrary exercise of power, without even the color of authority ; it does not rest with this court to control or correct the exercise of such power, unless the case js brought within some one of the three classes of cases specified in the act of congress. There is certainly no general power vested in this court to revise any other cases. And according to the case of Crowell v. Randell, it must appear, either directly, or by necessary inference, that some one of these questions did, in point of fact, arise, and was decided by the court. As the record in this case does not point to any treaty, or law, or any part of the constitution of the United States, or authority embraced by it, that was drawn in question, or that has been violated bythe state court ; it makes it necessary to examine more at length, the several classes of cases mentioned in this 25th section, which fall under the revising power of this court, to see whether this case can be brought within any of them. This section contains 506 1840] 581 OF THE UNITED STATES. Holmes v. Jennison. three specified classes. The first is, where is drawn in question the validity -of a treaty, or statute of, or authority exercised under, the United States, and the decision is against their validity. This record, certainly, does not show that any treaty or law of the United States, or any authority exercised under the United States, was drawn in question at all ; and, of course, thete could have been no decision against their validity ; the court, did not profess to act under, or against, any such source of authority. The next class is, where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of their validity. There is no treaty or law of the United States drawn in question, nor was there any statute of Vermont in any manner under the consideration of the court, nor any decision upon the validity of a statute of that state. The record does not furnish the slightest evidence that the state of Vermont had ever passed any law on the subject ; and to draw the conclusion from the mere fact of surrender by the governor, that the laws of the state had authorized it, is certainly looking to something not apparent on the record, which this court has said cannot be done. If, therefore, the present case falls at all within this class, it must be because it was the exercise of an authority repugnant to the constitution *of the United States ; and then the question arises, what part of the L constitution has been violated, or is in conflict with the powei' exercised in this cases. The argument at the bar did not point to any specific provision in the constitution that has been violated, except the fifth admendment; which declares that no person shall be deprived of life, liberty or property, without due process of law. It is unnecessary to stop to inquire, whether this case falls within that provision, if it would be brought to bear upon it 5 for this court has decided, that none of these amendments apply to the states, but are limitations upon the powers of the general government. 7 Pet. 247. The argument has rested principally upon the theory of our government, in relation to the treaty-making power, and the organ for conducting foreign intercourse. There is certainly no specific provision in the constitution on the subject of surrendering fugitives from justice, from a foreign country, if demanded ; and we are left at large to conjecture upon various parts of the constitution, to see if we can find that such power is by fair and necessary implication embraced within the constitution : I mean, whether any such obligation is imposed upon any department of our government, by the constitution, to surrender to a foreign government a fugitive from justice. For unless there is such a power vested somewhere, it is difficult to perceive bow the governor of Vermont has violated any authority given by the constitution to the general government. If such a power or obligation, in the absence of any treaty or law of congress on the subject, rests anywhere, I should not be disposed to question its being vested in the president of the United States. It is a power essentially national in its character, and required to be carried into execution by intercourse with a foreign.government ; and there is a fitness and propriety of this being done through the executive department of the government, which is intrusted with authority to carry on our foreign intercourse. I do not mean to enter at large into the question of surrendering to foreign governments fugitives from justice. Whatever that power, or duty, or obligation, may be, it is, in 507 [Jan’y SUPREME COURT Holmes v. Jennison. 582 my judgment, not within the authority of this court to regulate or control its exercise. In order to give such power to this court, when the surrender has been made under authority of a state, it must appear to be repugnant to the constitution, or an existing law or treaty, of the United States. And unless the president of the United States is, under the constitution, vested with such power, it exists nowhere ; there being no treaty or law on the subject. And it appears to me indispensably necessary, in order to maintain the jurisdiction of this court in the present case, to show that tho president is vested with such power under the constitution. This record shows that such power or authority has been expressly disclaimed by the president, on an application by the governor of Vermont, in the year 1825. The secretary of state, in answer to the letter of the governor of Vermont on that subject, says, “ I am instructed by the president, to express his regret to your excellency, that the request of the acting governor of Canada * cannot be complied with, *under any authority now vested in the exec- ’ -I utive government of the United States ; the stipulation between this and the British government, for the mutual delivery over of fugitives from justice, being no longer in force, and the renewah of it by treaty, being at this time a subject of negotiation between the two governments.” Here,, then, is a direct denial by the president of the existence of such a power in the executive, in the absence of any treaty on the subject. And such has been the settled and uniform course of the executive government of the United States upon this subject, since the expiration of our treaty with England. And if this be so, it may be emphatically asked, what power in the general government comes in conflict with the power exercised by the governor of Vermont? In order to maintain the jurisdiction of this court, in the present case, it must be assumed, that the president has, under and by virtue of the constitution, in the absence of any treaty on the subject, authority to surrender fugitives from justice to a foreign government ; otherwise, it cannot be said, that the governor of Vermont has violated the constitution of the United States. If any such power is to be given to the president by treaty, it is not merely to regulate the mode and manner of exercising an existing power ; but must be a treaty creating the power, and founded upon the mere comity of nations, and not resting upon any obligation, the performance of which a foreign nation has a right to demand of our government. This powei’ to surrender fugitives from justice, to a foreign government, has its foundation, its very life and being, in a treaty to be made between the United States and such foreign government ; and is not, by the constitution, vested in any department of our government, without a treaty. The power, therefore, exercised by the governor of Vermont, can, at most, be only repugnant to a dormant power, resting entirely upon comity and reciprocity, to be established by treaty ; and which may, by possibility, be brought into action at some future day, through the instrumentality of such a treaty. This, in my judgment, is too remote and contingent to fall under the protecting authority of this court, under the 25th section of the judiciary act. The remaining class of cases embraced in this section, is, where is drawn in question the construction of any clause of the constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege or exemption, specially set up or claimed 508 1840] OF THE UNITED STATES. 583 Holmes v. Jennison. by either party, under such clause of the said constitution, treaty, statute or commission. This class points to some particular clause in the constitution, or of a treaty, or statute or commission, held under the United States ; by which a right, title, privilege or exemption is claimed, and the decision is against such claim. It may be again observed, that no treaty or law was drawn in question. Nor was any particular clause in the constitution, con- . furring any privilege or exemption, in any manner whatever alluded to in the record, or can be supposed, by any reasonable intendment, to have been drawn in question ; *except, perhaps, the fifth amendment, which, as it has been already shown, does not apply to the states, whatever may L J be its construction. Nor can the prohibition to the states to enter into any treaty, alliance or confederacy, or into any agreement or compact, with another state, or with a foreign power, be considered as drawn in question * ■or violated. There is nothing in this record to warrant an inference, that the state of Vermont had ever entered into any agreement or compact with Canada, in relation to the surrender of fugitives from justice. The governor of Vermont does not profess to act under any such agreement; and it is -inconceivable, if any existed, why no allusion whatever is made to it in his warrant, or in the proceedings before the court. The record, in my judg-. ment, does not furnish the least evidence, justifying a conclusion that any * treaty, compact or agreement of any description, had been entered into between the state of Vermont and Canada, on the subject of surrendering fugitives from justice ; and the case now before the court is the only one, from anything appearing on the record, where it has ever been attempted. And to construe this single isolated case, and that, too, by the governor alone, without any evidence of his acting under the authority of any statute of the state on the subject, to be an entering into a solemn compact or agreement between the state of Vermont and a foreign power, in violation of the article of the constitution, which prohibits a state from entering into any compact or agreement with a foreign power; is a construction to which I cannot yield my assent. I am not, therefore, able to discover how any question could have arisen, and been decided in the supreme court of Vermont, coming within the appellate power of this court. This power is not only affirmatively declared and pointed to certain specified cases ; but there is an express denial of the authority of this court to go beyond such specific questions. The act declares, that no other error shall be assigned or regarded as a ground of -reversal, than such as appears on the face of the record, and immediately respects the before-mentioned questions of the validity or construction of ' the constitution, treaties, statutes, commission or authority in dispute. And it appears to me to be a very strong and cogent objection to taking ' jurisdiction in this case, that a reversal of the judgment will be entirely -unavailing, unless the supreme court of Vermont shall voluntarily discharge " the prisoner. It is certainly not in the power of this court to enforce its -judgment. If the jurisdiction of this court was clearly and plainly given, it might not be a satisfactory answer, that it could not execute its judgment. _ But where the authority of this court depends upon a doubtful construction -of its appellate power, it furnishes a persuasive reason against applying the power to a case which may result in a nugatory and fruitless judgment. It is not to be presumed, that congress would vest in this court a power to 509 SUPREME COURT Holmes v. Jennison. [Jan’y 584 judge and decide, and withhold from it the authority to execute such judgment. It would be of no benefit to the party, and would be placing the * , court in no very enviable a *situation. If the proceeding on a habeas -* corpus is a suit in the meaning of the judiciary act, an execution of the judgment is the fruit and end of the suit, and is very aptly called tne end of the law. And the provisions contained in this 25th section of the judiciary act, show very satisfactorily, in my judgment, that the revising power of this court was not intended to be applied to any case where the could not execute its judgment. The act declares, that the writ of error shall have the same effect as if the judgment or decree complained of had been rendered or passed in a circuit court. And the proceedings upon the reversal shall also be the same, except that the supreme court, instead of remanding the cause for a final decision, as before provided, may at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. This looks to a case where the state court refuses to execute the judgment of this court. No such provision is made or allowed, when the writ of error is to a circuit court of the United States. In such case, the judiciary act declares, that the supreme court, shall not issue execution in causes that are removed before them by writs of error, but shall send a special mandate to the circuit court to award execution thereon. And what is the reason for this different mode of executing the judgment of this court. It is because this court can coerce the circuit courts to execute the mandate. The judiciary act gives to the supreme court the power to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed or persons holding office under the authority of the United States ; and that the courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. But no such coercive power is given over a state court ; and hence the necessity of authorizing this court to execute its own judgment. ’ If the supreme court of Vermont shall refuse to execute the judgment of this court, requiring the discharge of the prisoner Holmes, can this court in any way enforce its judgment ? If it can be done at all, it must be by sending a habeas corpus to the sheriff or jailer, having the custody of the prisoner, to bring him here to be discharged. And if that officer shall return that he holds him under a commitment of the supreme court of Vermont, what can this court do? We must remand him ; and there ends our jurisdiction. The judiciary act authorizes this court to issue writs of habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law ; with a proviso, however, that writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, * _ or arc ^committed for trial before some court of the same, or are nec- 5 J essary to be brought into court to testify (§ 14). The power, therefore, of this court to execute its judgment is expressly taken away ; and the prisoner obtains no relief. And can it be reasonably supposed, that congress intended by this 25th section of the judiciary act, to embrace cases where 510 1840] OF THE UNITED STATES. Holmes v. Jennison. 58$ the judgment must be a dead letter, and at most merely, advisory, and the expression of an opinion upon an abstract question, but utterly fruitless, if the advice shall be disregarded. I cannot yield my assent to the assumption of a power which must place this court in such a feeble, an inefficient situation. If this court has the power to meet the exigency of the ease at all, why not apply at once the appropriate and efficient remedy by habeas corpus ; and relieve the prisoner from his illegal imprisonment. But if this power is denied to the court, can it be, that the act of congress has clothed us only with the naked authority to advise the supreme court of Vermont to discharge the prisoner ? I think not. And that it is, therefore, a case not embraced under the 25th section of the judiciary act; and that the appellate power of this court cannot reach the case. Baldwin, Justice.—Concurring most fully and cordially in the opinions delivered by those of my brethren, who are opposed to any action by this court, on this case, I have nothing to add to the reasons assigned by them, respectively, lest it might imply my want of confidence in the grounds which they have taken ; and, in my mind, maintained with conclusive force. There are, however, two subjects of high consideration involved in this case, which 1 feel constrained to notice ; as my opinion would have been governed by them, had there been no other grounds for my declining to interfere with the order of the supreme court of Vermont, remanding the relator to the custody whence he was brought before them by the writ of habeas corpus. 1. The constitution of the United States confers no power on any department of the federal government, to prevent a state or its officers from sending out of its territory a person in the situation of Holmes, the relator. 2. That a writ of error does lie from this to a state court, to revise their proceedings on a writ of habeas corpus. That the treaty-making power of the constitution is competent to bind the states, by a stipulation to surrender fugitives from justice, is not denied by any ; nor that where such power is executed by a treaty, a state is under an obligation to surrender ; but that while such power remains dormant or contingent, the obligation does not exist, and that congress have no power to impose it, has been too clearly established by my brethren, to leave it in my power to add to the weight of their reasoning. But while I admit the competency of the treaty-making power to compel, I utterly deny its power to prevent the expulsion of a fugitive from justice from the territory of a state, pursuant to its laws, or the general authority vested in its executive or other appropriate officers, to administer and enforce its regulations of internal police. This distinction between the power to compel, and the power to prevent the surrender of a fugitive, is visible in the whole frame of the constitution, as well in the general lines which it designates, in separating the powers of the federal and state governments, by grants, prohibitions and separations, as by its more specific provisions. There cannot be found a clause in the whole instrument, which, in terms, or by any fair construction, can be made to bring the power to compel a state not to surrender, within any enumerated subject over which congress-can legislate ; unless it is sought as one of a vagrant nature, to be exercised under such of the various items specified, as may be suggested by a train of ingenious, refined and subtle reasoning, from one implication to. another, till 511 586 a SUPREME COURT [Jan’y Holmes v. Jennison. there is found some hook whereby to connect this with some granted power. Nay, it is cautiously omitted in the prohibition on the states, to use any language, which can be tortured into a reference to the subject-matter ; and as the nature of the treaty-making power precludes any enumeration of the subjects of its exercise, it is left with no other prescribed limitation, than, that treaties, to have their constitutional effect, must be made “ under the authority of the United States.” This power must then be called into action, and act on the subject, before a state can be deprived of the right to surrender, or retain a fugitive, at its pleasure ; a right which each state possessed in its plenitude, on the dissolution of the articles of confederacy, and which remained unimpaired, till it became party to the constitution, on its adoption by the people thereof, whereby they held the power subject to such restraints, as treaty stipulations might impose-in future. Without such stipulation, the whole subject-matter of fugitives of any description, from a foreign nation, or any of its colonies or dependencies, is reserved to the respective states, as fully as before the constitution ; but with such stipulation in a treaty, I admit, the state is as much bound to make the surrender, as if it had been a subject of express delegation of power to the president and senate ; or as if the same provision had been made in relation to foreign fugitives from justice or service, as those from the respective states, but which is guardedly omitted. In the second clause of the second section of the fourth article, the constitution provides, that “ a person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state from which he fled.” A corresponding provision is made for fugitives from service or labor ; and congress, by the act of 1793, have prescribed the made in which the provision ■of the constitution shall be carried into effect. (1 U. S. Stat. 302.) It Will not be pretended, that these provisions do not impose upon the states of this Union, an obligation as imperative, and impair their reserved rights to the same extent, as a similar stipulation in a treaty between the United States and any foreign state ; let it then be assumed, that there was such a treaty with Great Britain, in relation to fugitives from justice in Canada (and a stronger case cannot be supposed); the question it involves is not difficult of solution. The object and great purpose of the constitution and congress, in one case, and of the treaty in the other, is to make it the duty of the state and its officers, to make the surrender, on a demand ; but it does not follow, that it may not be done voluntarily, or without demand ; to take the fugitive to the border and force him to pass the line, whether the authorities of the adjacent states or provinces are desirous, or even willing to receive him or not, is but an ordinary police power. This is the true point in issue ; whether a state is prohibited by the constitution, from doing, of its own accord, an act which it is bound to do, whenever demanded pursuant to a law or a treaty of the United States ; and which it might do or refuse, if the subject was neither within the law nor treaty-making power of the United States. Had no provision been made for the reclamation of fugitives from the states, there could be no pretence for denying to the states an unlimited discretion over the whole subject; the constitution has put one single limitation on this dis- 512 1840] OF THE UNITED STATES. ’586 £ Holmes v. Jennison. •oretion, in case of a demand from the executive of another state ; leaving that discretion as free and full, where no demand is made, as if the constitution had been wholly silent on the subject. And if it had been so silent, the only difference would have been, that though there would have been no obli- * gation to surrender, on a demand, there would have been the same right and • power to do it, as now exists in each state, in respect to their respective fugitives ; or as would exist under a treaty-making provision for the reciprocal delivery of fugitives from the Canadas, or the states. No injunction of the constitution can be violated, nor the faith of treaties impaired, by each state or province refusing to be made a Botany Bay, an asylum or even the receptacle of the vagabonds, the criminals or convicts of the other ; any duty of state to state, of state to the Union, and the United States to foreign powers, is fully and faithfully executed by the performance -of the duties and stipulations imposed or made. But no political community, no municipal corporation, can be under any obligation to suffer a moral pestilence to pollute its air, or contagion, of the most corrupting and demoralizing influence, to spread among its citizens, by the conduct and example of men, who, having forfeited the protection of their own government by their crimes, claim to be rescued from the consequences, by an appeal to the same constitution and laws, under which our own citizens are not, and cannot be screened from punishment, when it is merited by their conduct. No state can be compelled to admit, retain or support foreign paupers, or those from another state; they may be removed, or sent where they came; not because poverty is a crime, but because it is a misfortune not to be mitigated or relieved by the compulsory contributions of those among whom they throw themselves, or are cast by their governments for maintenance. , Every state has acknowledged power to pass and enforce quarantine, health and inspection laws, to prevent the introduction of disease, pestilence or unwholesome provisions ; such laws interfere with no powers of congress or treaty stipulations ; they relate to internal police, and are subjects of domestic regulation within each state, over which no authority can be exercised by any power, under the constitution, save by requiring the consent of congress to the imposition of duties on exports and imports, and their payment into the treasury of the United States. 11 Pet. 102, 130, &c. ; 9 Wheat. 203, &c. ; 12 Ibid. 436, &c. See § 10, art. 1, cl. 2. “These laws form a portion of that immense mass of legislation, which embraces everything within the territory of a state, not surrendered to the general government,” justify the assumption of the power. But more than jurisdiction must be assumed, before this court could exert it to the extent which such a case requires ; forthough resistance to its mandate may be contingent, or merely possible, it ought to be well considered, whether, when it should happen, the court felt assured that they would be sustained by the law and constitution, in enforcing obedience by mandamus, attachment, and the imprisonment of the judges of the highest court of a state. It is not enough, that the term “any suit ” may embrace a case of habeas corpus; it must be one which in all other respects admits of the action prescribed in the judiciary act, in all its provisions relative to the appellate jurisdiction of this court; if it is, there will be found no defect of power to execute its final mandate or execution, by the authority of this court. If it is not, then, if the court assumes jurisdiction, it must usurp power to carry into effect a judgment which the law does not recognise, and consequently, makes no provision for its execution. It is dangerous, at least, if not unwise 531 586 w [Jan’y SUPREME COURT Holmes v. Jennison. or rash, to exercise a power which may be given by the constitution ; but which congress has given no authority to execute, or given in terms so obscure, that to so construe them, is in substance the exercise of legislative power, by the judicial department. However desirable it may be thought, to enlarge jurisdiction, and expand its exercise, so as to embrace cases not yet known to the law, or by so construing the constitution and law, as to make it, by reasoning, what it ought to have been in the text ; and giving inference and incident the effect of ordinance and enactment, increase the ostensible power of the court ; yet, assuredly, it will continue to lose, in public confidence, that moral strength, which can alone insure its efficient and quiet action, in the same proportion as it extends ungranted jurisdiction. -No course appears to me to lead more certainly to such results, than that which the court has been urged to take in this case; had we reversed the (so called) final judgment, and our mandate bad encountered new process, &c., our own solemn judgment would have had a most ludicrous effect, as a final decision, of what ? not the suit, cause or prosecution, but on the legality of the original process, which is a most conclusive reason why a decision -on mere process is not the subject of a writ of error. Or had the matter remained as it was, our reversal would have respected only the refusal to discharge the party from the process ; our mandate to discharge, would, if executed, leave him liable to arrest on new process, without affecting the suit; which is an equally conclusive reason to show that a final decision in -error on the habeas corpus is not such as is contemplated by the 24th or 25th sections, or provided for by either. Or, should that court refuse obedience to our mandate, the predicament of this court would be precisely the same as in Martin v. Hunter ; they must, at the next term, proceed in one of the following modes. 1. Follow the precedent of Martin v. Hunter—issue “a writ of error” to the supreme court of Vermont, “ founded ” on their “ refusal to obey the mandate of this courtraise that refusal to the dignity of a final judgment (ride I Wheat. 305), and then reverse it, and affirm “the judgment of the district court.” Ibid. 262. This, however, would not be a course appropriate to the present case : there is no judgment of any inferior court, or if there was, this court would have no power, by the 25th section, to affirm or reverse it, because the *and is certainly a convenient one, to consider the power of -I the states as existing over such cases as the laws of the Union may not reach. But be this as it may, the power granted to congress may be exercised or declined, as the wisdom of that body shall decide. If, in the opinion of congress, uniform laws concerning bankruptcies ought not to be established, it does not follow, that partial laws may not exist, or that state legislation on the subject must cease. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the states.” He proceeds to say, that the circumstance of congress having passed a bankrupt law, had not extinguished, but only suspended the right of the states. That the repeal of the bankrupt law could not confer the power •on the states, but that it removed a disability to its exercise which had been created by the act of congress. In 5 Wheat. 21, Judge Washington, in delivering the opinion in the case of Houston v. Moore, distinctly asserts, that if congress had declined to exercise the power of organizing, arming and disciplining the militia of the several states, it would have been competent to the state governments to have done so, in such manner as they might think proper. In Wilson and others v. Blackbird Creek Marsh Company, 2 Pet. 251-2, the legislature of Delaware had passed a law which stopped a navigable creek. In the argument, it was contended, that this law came in conflict with the power of the United States “to regulate commerce with foreign nations, and among the several states.” The chief justice, in answer to this argument, said, “If congress had passed any act which bore upon the case, the object of which was to control state legislation over those small navigable creeks, into which the tide flows, and which abound throughout the lower country of the middle and southern states, we should feel not much difficulty in saying, that a state law, coming in conflict with such act, would be void. But congress has passed no such act. The repugnancy of the law of Delaware to the constitution, is placed entirely on its repugnancy to the power to regulate commerce with foreign nations, and among the several states ; a power which has not been so exercised as to affect the question.” He concluded by saying, that the court did not consider the law in question, “ under all the circumstances of the case, as repugnant to the powei’ to regulate commerce, in its dormant state, or as being in conflict with any law passed on the subject.” If, then, it be true, that it is not the mere existence of a power, but its 538 1840] OF THE UNITED STATES. 952 Holmes v. Jennison. exercise, which is incompatible with the exercise of the same power by the state ; and that, too, where the powei- given was in express terms, “ to establish uniform laws on the subject of bankruptcies, throughout the United States,” the term “ uniform” making the case stronger than where the grant contains no such term ; and if it be also true, that the law of Delaware was not repugnant to *the power to regulate commerce, in its dormant state ; then it seems to me, that I have sufficient grounds for the pro-position which I have laid down. Let me, then, apply that proposition, and the principles of this court to this case. I have admitted, that the president and senate might make a treaty for the surrender of fugitives from justice, but they have not done so; that power, in relation to this subject, is in a dormant state ; the power exists, but has not been exercised ; without the exercise of that power by the president and senate, the federal executive has no power to surrender fugitives from justice. This was the authoritative declaration of our government, in 1791, when Mr. Jefferson, then secretary of state, held the following language: “The laws of the United States, like those of England, receive every fugitive (that is, as he had just said before, in the same communication to president Washinghon, the most atrocious offenders as well as the most innocent victims), and no authority has been given to our executive to deliver them up.” The same authoritative declaration was made by Mr. Clay, by direction of President Adams, in the year 1825, in answer to a demand from Canada ; and the reason assigned was, that the treaty upon that subject was no longer in force. It appears, then, that there is no treaty on the subject of surrendering fugitives; that without such treaty, the federal executive has no authority to surrender ; the authority, then, exercised by the governor of Vermont, is not repugnant to the power of making treaties, in its dormant state : because, in the language of the chief justice, before cited, it is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states. It is said by one of the judges, in delivering his opinion in the case of Houston v. Moore., that the powers of the federal government are exclusive of the states, when there is a direct repugnancy, or incompatibility in the exercise of it by the states. It is not said, whether this repugnancy is produced by the mere existence of the power in the federal government, or by its exercise. But he gives as examples of this, the power to establish a uniform rule of naturalization, for which he refers to Chirac v. Chirac, 2 Wheat. 259, 269 ; and the delegation of admiralty and maritime jurisdiction, for which he refers to 1 Wheat. 304, 337. In the case in 2 Wheaton, the chief justice does say, “that the power of naturalization is exclusively in congress, dees not seem to be, and certainly ought not to be, controverted.” But the point made, and which immediately precedes this remark was, that the law of Maryland, according to which the party had taken the oaths of citizenship, had been virtually repealed by the constitution of the United States, and the act of naturalization enacted by congress. The remark, then, was made in relation to a power which had been executed. But the case of Sturges v. Crouminshield was decided after that of Chirac v. Chirac; and in that later case, it was declared, that it was not the mere existence, but the exercise of the power, *which is incompatible with the exercise of the same power L 539 [Janry 594 SUPREME COURT Holmes v. Jennison. by the states ; and what makes this principle especially applicable is, that the power of establishing a system of naturalization, and bankrupt laws, is contained in the same clause, and expressed, identically, in the same terms. So that, if the mere existence of the power as to bankruptcy, without its exercise, does riot prohibit the states from acting on it ; by like reason, the mere existence of the power as to naturalization, without its exercise, does not prohibit them from acting on it. It is said in 1 Wheat. 337, arguendo^ by the court (fox’ it was not the point to be decided), that admiralty and maritime jurisdiction is of exclusive cognisance. It would seem, from the reasoning of the court, as if this rested upon these grounds : that the constitution is imperative on congress, to vest all the judicial power of the United States, in the courts of the United States ; that the judicial power was declared to extend to all cases of admiralty and maritime jurisdiction ; and that, therefore, by the terms in • which the clause was expressed, the jurisdiction was made exclusive. Such also, seems to be the principle laid down in 1 Kent’s Com. 351, where the author says : “ Whatever admiralty and maritime jurisdiction the district courts possess, would seem to be exclusive ; for the constitution declares, that the judicial power of the United States, shall extend to all cases of admiralty and maritime jurisdiction ; and act of congress of 1789, says, “ that the district courts shall have exclusive original cognisance of all civil causes of admiralty and maritime jurisdiction.” It seems to me, then, that neither of these cases impugns the principles which I have laid down. I consider it wholly irrelative to this case, to inquire, whether the authority exercised by the governor of Vermont was, or was not, justified by the constitution and laws of that state. Not only would the words of the act of congress, under which this case has been brought up, clearly require this construction ; but this court has expressly decided the question, in the case of Jackson n. Lamphire^ 3 Pet. 280, in which they say, that this court has no authority, on a writ of error from a state court, to declare a state law void, on account of its collision with a state constitution. Upon these grounds, I am of opinion, that this case does not come within the provisions of the 25th section of the judiciary act ; and consequently, that the writ of error ought to be dismissed, for want of jurisdiction. Catron, Justice.—To distinguish this cause from others that often arise in the states where statutes exist authorizing the arrest of fugitives from justice from other states, and foreign governments, it becomes necessary to ascertain precisely what the case before us is. First, it must be recollected, there is no statute in Vermont prohibiting those charged with crimes in other states, or foreign countries, *from .. coming into that state, or authorizing their apprehension if they come there : so we understand the fact to be ; and that the authority to issue the warrant of arrest in this case was assumed by the governor, as chief magistrate and representative of the state. Holmes had been guilty of no crime against the laws of Vermont ; but the warrant recites he was a subject of the province of Lower Canada ; that he stood indicted for the crime of murder there ; and that it was fit and expedient that he should be made amenable to the laws of that province for the offence. The sheriff, in his 540 1840] OF THE UNITED STATES. ^5 Holmes v. Jennison. return to the writ of habeas corpus, certifies that this warrant was the sole cause of detention and imprisonment. He was not commanded to hold Holmes to answer to the authorities of Vermont ; but ordered forthwith to convey and deliver him to William Brown, the agent of Canada, or to such person or persons, as by the laws of said province should be authorized to , receive the same, at some convenient place on the confines of the state, and ! the province of Canada ; to the end that the said George Holmes might be | thence conveyed to the district of Quebec, and there be dealt with as to law i and justice appertained. We will assume, for the present, and for the purposes of the argument, that an agreement to surrender, on which the arrest was founded, existed between tht executive chief magistrate of Vermont, and the queen of Great Britain ; that William Brown was the agent of Great Britain, and repre- * rented that kingdom ; that Governor Jennison represented Vermont ; and that the arrest was made in part execution of such previous agreement. In such case, I admit, the act would have been one as of nation with nation, and governed by the laws of nations ; that the agreement would have been -prohibited by the constitution, and the arrest, in part execution of it, void ; and that the judgment of the state court in favor of the validity of the arrest should be reversed. But that court was not called on to decide -(taking the facts assumed to exits), nor are we permitted to determine in this case, how far the state courts and magistrates may go, in dealing with fugitives from justice coming within their limits, when executing the stautes of the states. No such question has been raised at the bar, nor has it been considered of by the bench. This is the substance of my opinion, drawn up at length, on the point in this cause, on which, for a time, I thought the judgment below ought to be reversed. I founded myself upon the fact, that an agreement to arrest and surrender Holmes had been made between Vermont and Great Britain, before the arrest took place ; and that it was made in part execution of such previous agreement. Neither on the argument of the cause, nor at any time previous to hearing read the opinion of my four brethren, drawn up by the chief justice, and with the result of which I had intended to concur, had it occurred to me, the fact was doubtful. In that opinion, however, it is declared, that “ nothing appears that a demand was made by L $ $ Canada of Holmes ; and we do not act upon the supposition such a demand was made ; nor consider it in the case.” Now, if no demand was made, -I take it as granted, no agreement existed between Great Britain and Vermont for the surrender of Holmes. To assume that a general regula- -tion by treaty or agreement, existed between the state and the foreign kingdom, on which the ‘governor’s warrant founds itself, and from which the regulation must be inferred, would be charging the chief magistrate of Vermont with a palpable violation of the constitution of the United States, on " the ground that he assumed the power of foreign intercourse. There is -nothing in the record to establish such a conclusion ; nor can it be assumed, " with any propriety, on mere conjecture. It is manifest to my mind, the facts stated in the warrant have reference to this individual case. The arrest could, -therefore, not have been made in part execution of any compact or agreement between the state and kingdom : it follows, a judgment of reversal could only be founded on the intention of the governor to make a future 541 596 SUPREME COURT [Jan’y Holmes v. Jennison agreement, at thé time Holmes should be surrendered to Brown, or to some sheriff, or other officer, or agent of Canada, having lawful authority to receive the prisoner. The intent, we are not authorized to try ; we only have jurisdiction to examine into acts done ; and must proceed, if at all, on some past violation of the constitution of the United States, supposed to be that clause which declares, “ no state shall, without the consent of congress, enter into any agreement ox* compact with another state, or with a foreign power.” The defendant, Holmes, is yet in prison under the governor’s warrant of arrest ; no agreement to surrender him yet exists, and none may ever be made with Great Britain ; the act done by the governor, is singly that of Vermont, and therefore, cannot violate the recited clause of the constitution. All my brethren, those who are for reversing the judgment, and those who are for dismissing the writ of error, have adopted, and are acting on the supposition, that no demand to surrender Holmes can be inferred from the facts recited in the warrant of the governor ; and that the fact is considered out of the case. After much consideration, I entertain some doubts, whether such an inference could be safely made ; and deem it due to the opinion of all my brethren, on the finding of a mere fact in so delicate a matter, to concur with them in the conclusion that no demand was made, and that, consequently, no agreement existed ; and therefore, to concur with those who think the writ of error should be dismissed. A consequence inevitable to my mind, viewing the case in this aspect. That an intent to surrender, is equivalent to an agreement between two states, and therefore, the arrest in violation of the constitution of the United *5971 States, is a doctrine calculated to alarm the whole country. *The -* constitution equally cuts off the power of the states to agree with each other, as with a foreign power ; yet, it is notoriously true, that for the fifty years of our existence under the constitution, the states have, in virtue, of their own statutes, apprehended fugitives from justice from other states, and delivered them to the officers of the state where the offence was committed ; and this, indêpendently of the fourth article and second section of the constitution, and the act of congress of 1793, ch. 51, which provides for a surrender on the demand of the executive of one state upon that of another. The uniform opinion heretofore has been, that the states, on the formation of the constitution, had the power of arrest and surrender in such cases ; and that so far from taking it away, the constitution had provided for its exercise, contrary to the will of a state, in case of an unjust refusal ; thereby settling, as amongst the states, the contested question whether on a demand, the obligation to surrender was perfect and imperative, or whether it rested on comity, and was discretionary. After having had written out for me the very able argument delivered before this court, for the plaintiff in error ; and after having bestowed much reflection on this subject, and written out my views on every point involved, as the safest mode of testing of their accuracy ; I have come to the conclusion, divided as the court is, that it is better for the country, this question should for the present remain open. And I here take the occasion to say, that I hold myself free, and uncommitted by this opinion, or by anything occurring in this cause, to decide, in future cases, according to their character, and the conclusions I may then form. 542 1840] OF THE UNITED STATES. 597 Holmes v. Jennison. I concur, that a proceeding by habeas corpus is a suit, within the meaning of the judiciary act, § 25 ; and that a refusal to discharge a defendant is a final judgment in such suit. 1. But whether a writ of error will lie, must depend, in every case, on the fact : This court only has jurisdiction where the decision in the state court has drawn in question the validity of a treaty, or statute of, or an authority exercised under, the United States ; and the decision ,is against their validity. 2. Or, where is drawn in question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the constitution, &c., of the United States ; and the decision is in favor of such their validity. 3. Or, where is drawn in question the construction of any clause of the constitution, &c., and the decision is against the right claimed under such clause. The agreement being out of the case, the arrest, as an authority exercised under the state, and the decision in favor of its validity, could not be repugnant to the constitution ; as the court did not uphold an agreement, or an exercise of authority under any. Nor can I find that the decision below drew in question the construction of an other clause of the constitution, more than the one prohibiting *agreements with foreign powers. There being no agreement in the case ; certainly none of the exclu- L sive powers secured to the general government, to declare war, to send ambassadors, to make treaties, or to regulate commerce with foreign nations, were violated ; as no national intercourse of any kind was had by Vermont with the authorities of Great Britain. Whether the arrest violated the laws of Vermont, is immaterial to this . court ; we have no power, under the 25th section, to interfere, and must leave parties injured to seek redress in the state courts. It follows, from the nature or the case, this court has no jurisdiction to entertain the writ of error ; which, I think, should be dismissed. This cause came on to be heard, on the transcript of the record from the supreme court of judicature of the state of Vermont, and was argued by counsel : On consideration whereof, it is now here ordered and adjudged by this court, that this writ of error to the said supreme court be and the same is hereby dismissed, for the want of jurisdiction. Note.—The reporter has inserted this case in the present volume of reports, although no decision on the questions presented to the court was given. The principles, discussed with great ability by the counsel for the plaintiff in error, the importance of the questions involved in it, and the great judicial learning and knowledge contained in the opinions delivered by the justices of the court, are of the highest interest. Although no judgment was given in the case, it will be seen that a majority of the court concurred in the opinion, that the governor of the state of Vermont had not the power to deliver up to a foreign government a person charged with having committed a crime in the territory of that government. After this case hsd been disposed of in the supreme court of the United States, on a habeas corpus issued by the supreme court of judicature of the state of Vermont, -George Holmes was discharged. The judges of that court were satisfied, on an examination of the opinions delivered by the justices of the supreme court, that by a majority of the court it was held, that the power claimed to deliver up George Holmes did not exist.1 ’■See Ex parte Holmes, 12 Vt. 631. 543 INDEX TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. The References in this Index are to the Star *pages. ACTION. 1. A note to be paid “ in the office notes of a bank ” is not negotiable by the usage or custom of merchants; not being a promissory note by the law-merchant, the statute of Anne, or the kindred acts of assembly of Pennsylvania, it is not negotiable by indorsement ; and not being under seal, is not assignable by the act of assembly of Pennsylvania on that subject, relating to bonds. No suit could be brought upon it in the name of the indorser ; the legal interest in the instrument continues in the person in whose favor it was drawn, whatever equity another may have to claim the sum due on the same; and he only can be the party to a suit at law on the instrument. Irvine v. Lowry..........*293 2. The declaration in an action by an executor, for the recovery of money received by the defendant, after the decease of the testator, may be in the name of the plaintiff, as executor, or in his own name, without stating that he is executor; the distinction is, that when an executor «sues on a cause of action which occurred in the lifetime of the testator, he must declare in the detinet, that is, in his representative capacity only ; but when the cause of action accrues after the death of the testator, if the money when received will be assets, the executor may declare in his representative character, or in his own name. Kane v. Paul..............................*33 3. An action was instituted in the circuit court of Mississippi on a promissory note, dated at and payable in New York ; the declaration omitted to state the place at which the note was payable, and that a demand of payment had been made at that place: Held, 14 Pe..—35 that to maintain an action against the drawe or indorser of a promissory note or bill of exchange, payable at a particular place, it is not necessary to aver in the declaration, that the note, when due, was presented at the place for payment, and was not paid; but the place of payment is a material part of the description of the note, and must be set out in the declaration. Covington v. Comstock............................*43 ADMINISTRATORS. See Executors and Administrators. AGENT OR FACTOR. See Factor. AVERAGE AND CONTRIBUTION. See Insurance. BOUNDARIES OF STATES. 1. In a case in which sovereign states of the United States are litigating a question of boundary between them, in the supreme court of the United States, the court have decided, that the rules and practice of the court of chancery should, substantially, gov- / ern, in conducting the suit to a final close. Rhode Island v. Massachusetts......*210 2. In a controversy where two sovereign states ; are contesting the boundary between them, • it is the duty of the court to mould the rules of chancery practice and pleading in such a manner as to bring the case to a final hear- 545 600 INDEX. ing on its merits ; it is too important in its character, and the interests concerned too ’ great, to be decided upon mere technical principles of chancery pleadings.............Id. 3. The state of Rhode Island, in a bill against the state of Massachusetts, for the settlement of the boundary between the states, had set forth certain facts on which she relied in support of the claim for the decision of the supreme court, that the boundary claimed by the state of Massachusetts was not the true line of division between the states, according to their respective charters; to this bill the state of Massachusetts put in a plea and answer, which the counsel for the state of Rhode Island deemed to be insufficient. On a question whether the plea and answer were sufficient, the court held: that as, if the court proceeded to decide the case upon the plea, it must assume, without any proof on either side, that the facts stated in the plea are correctly stated, and incorrectly set forth in the bill, then it would be deciding the case upon such an issue as would strike out the very gist of the complainant’s case, and exclude the facts upon which the whole equity is founded, if the complainant has -any. That it would be unjust to the complainant not to give an opportunity of being heard according to the real state of the case between the parties ; and to shut out from consideration the many facts on which he relies to maintain his suit...............Id. 4. The plea of the state of Massachusetts, after setting forth various proceedings which preceded and followed the execution of certain agreements with Rhode Island, conducing to show the obligatory and conclusive effect of those agreements upon both states, as an accord and compromise of a disputed right, proceeded to aver, that Massachusetts had occupied and exercised jurisdiction and sovereignty, according to the agreement, to this present time ; and then set up as a defence, that the state of Massachusetts had occupied and exercised jurisdiction over the territory from that time up to the present; the defendants then pleaded the agreements of 1710 and 1718, and unmolested possession from that time, in bar to the whole biH of the complainant. The court held, that this plea was twofold : 1. An accord and compro-„ mise of a disputed right. 2. Prescription, or an unmolested possession from the time of the agreement. These two defences are entirely distinct and separate, and depend upon different principles ; here are two de-fences in the same plea, contrary to the established rules of pleading ; the accord and compromise, and the title by prescription, united in this plea, render it multifarious ; and it ought to be overruled on this ao count..................................Id. CASES CITED AND AFFIRMED. 1. Arredondo’s Case, 6 Pet. 691. United States v. Wiggins............................*334 2. Bank of Augusta v. Earle, 13 Pet. 684. Runyan v. Coster.................... *122 3. Beers v. Houghton, 9 Pet. 332. United’ States v. Knight................ . i .. *301 4. Boyle v. Zacharie, 6 Pet. 648. Evans v Gee.....................................*1 ß. Eliason v, Henshaw, 4 Wheat. 225. Carr n. Duval............................. *77 6. Fairfax v. Hunter, 7 Cranch 61. Runyan x. Coster............................*122: 7. Foster v. Neilson, 2 Pet. 254; and Garcia v. Lee, 12 Ibid. 511, which cases decide-against the validity of the grants made by the Spanish government, in the territory lying west of the Perdido river, and east of the Mississippi river, after the Louisiana treaty of 1803, cited and affirmed. Keene v. Whittaker.......................*172f 8. Hunt v. Rousmanier, 8 Wheat. 211. Sprigg v. Bank of Mount Pleasant.............*201 9. Kelly v. Jackson, 6 Pet. 632. United States-v. Wiggins............................*334 10. Kendall v. United States, 12 Pet. 527, 610, 614. Decatur v. Paulding..............*497 11. McCulloch «.State of Maryland, 4 Wheat. 422; and American Insurance Company v. Canter, 1 Pet. 542, cited. United States v. Gratiot..............................*526' 12. Owings v. Hull, 9 Pet. 624 ; Percheman’s Case, 7 Ibid. 51; United States v. Deles-pine, 12 Ibid. 655, cited. United States v. Wiggins........................... *334 13. Rhode Island v. Connecticut, 12 Pet. 735. Rhode Island v. Massachusetts.........*210 14. Sprigg v. Bank of Mount Pleasant, 10 Pet. 257, examined and affirmed. Sprigg v. Bank of Mount Pleasant...................*201 15. Wayman «.Southard, 1 Wheat. 10. United States n. Knight......................*301 CERTIFICATE OF DIVISION. 1. Action in the district court of the United States for the southern district of New York, by the United States against the defendant, for a penaHy under the act of 1838, “ to-provide for the better security of the lives of passengers on board of vessels propelled in whole or in part by steama verdict was rendered for the United States, and without a judgment on the verdict, the case was, by consent, removed to the circuit court of the United States ; in the circuit court certain questions were presented on the argu- 546 601 INDEX. ment, and a statement was made of those questions, and they were certified pro formât at the request of the counsel for the parties, to the supreme court, for their decision ; no difference of opinion was actually expressed by the judges of the circuit court. The judgment or other proceedings on the verdict ought to have been entered in the district court ; it was altogether irregular to transfer the proceedings in that condition to the circuit court. The case was remanded to the circuit court. United States v. Stone...............................*524 2. In some cases, where the point arising is one of importance, the judges of the circuit court have sometimes, by consent, certified the point to the supreme court, as upon a division of opinion ; when in truth they both rather seriously doubted, than differed about it. Those must be cases sanctioned by the judgmeht of one of the judges of the supreme court, in his circuit............Id. CHANCERY AND CHANCERY PRACTICE. 1. A decree for a specific performance of a contract to sell lands, refused, because a definite and certain contract was not made ; and because the party who claimed the performance had failed to make it definite and certain on his part, by neglecting to communicate by the return of the mail conveying to him the proposition of the vendor, his acceptance of the terms offered. Carr v. Duval..................................*77 2. If it be doubtful whether an agreement has been concluded, or it is a mere negotiation, chancery will not decree a specific performance...................................Id. 3. A bill for an injunction was filed, alleging that the parties who had obtained a judgment at law for the amount of a bill of exchange, of which the complainant was indorser, had, before the suit was instituted, obtained payment of the bill from a subsequent indorser, out of the funds of the drawers of the bill, obtained by the subsequent indorser, from one of the drawers. It was held, that it was not necessary to make the subsequent indorser, who was alleged to have made the payment, a party to the injunction bill. Atkins v. Dick. .*114 4. By a rule of the supreme court, the practice of the English courts of chancery is the practice in the courts of equity in the United States. In England, the party who puts in a plea, »which is the subject of discussion, has the right to begin and conclude the argument; the same jule should prevail in the courts of the United States, in chancery cases. Rhode Island n. Massachusetts..........*210 5. In a case in which two sovereign states of the United States are litigating a question of boundary between them, in the supreme court of the United States, the court have decided, that the rules and practice of the court of chancery should substantially govern in conducting the suit to a final issue. (12 Pet. 735-9.) The court, on re-examining the subject, are fully satisfied with ^the decision....................................Id. 6. In a controversy where two sovereign states are contesting the boundary between them, it is the duty of the court to mould the rules of chancery practice and pleading in such a manner as to bring the case to a final hearing on its merits ; it is too important in its character, and the interests concerned too great, to be decided upon the mere technical principles of chancery pleading............Id. In ordinary cases between individuals, the court of chancery has always exercised an equitable discretion in relation to its rules of pleading, whenever it has been found necessary to do so, for the purposes of justice. In a case in which two sovereign states are contesting a question of boundary, the most liberal principles of practice and pleading ought, unquestionably, to be adopted, in order to enable both parties to present their respective claims in their full strength. If a plea put in by the defendant may in any degree embarrass the complainant in bringing out the proofs of his claim, on which he relies; the case ought not to be disposed of on such an issue. Undoubtedly, the defend-ont must have the full benefit of the defence which the plea discloses, but, at the same time, the proceedings ought to be so ordered, as to give the complainant a full hearing on the whole of his case..........Id. 8. According to the rules of pleading in the chancery courts, if the plea be unexceptionable in its form and character, the complainant must either set it down for argument, or he must reply to it, and put in issue the facts relied on in the plea; if he elect to proceed in the manner first mentioned, and sets down the plea for argument, he then admits the truth of all the facts stated in the plea, and merely denies their sufficiency in point of law to prevent the recovery; if, on the other hand, he replies to the plea, and denies the truth of the facts therein stated, he admits that if the particular facts stated in the plea are true, they are then sufficient in law to bar his recovery ; and if they are proved to be true, the bill must be dismissed, without a reference to the equity arising from any other facts stated in the bill................................... Id. 9. If a plea, upon argument, is ruled to be sufficient in law to bar the recovery of the 547 ' 602 INDEX. complainant, the court of chancery would, according to its uniform practice, allow him to amend, and put in issue, by a proper replication, the truth of the facts stated in the plea; but in either case, the controversy would turn altogether upon the facts stated in the plea, if the plea is permitted to stand. It is the strict and technical character of those rules of pleading, and the danger of injustice often arising from them, which has given rise to the equitable discretion always exercised by the courts of chancery in relation to pleas. In many cases, when they are not overruled, the court will not permit them to have the full effect of a plea; and will, in some cases, leave to the defendant the benefit of it at the hearing: and in others, will order it to stand for an answer, as, in the judgment of the court, may best subserve the purposes of justice................Id. 10. The state of Rhode Island, in a bill against the state of Massachusetts, for the settlement of the boundary between the states, had set forth certain facts on which she relied in support of her claim for the decision of the supreme court, that the boundary claimed by the state of Massachusetts was not the true line of division between the states, according to their respective charters; to this bill, the state of Massachusetts put in a plea and answer, which the counsel for the state of Rhode Island deemed to be insufficient, On a question, whether the plea and answer were insufficient, the court held, that as, if the court proceeded to decide the case upon the plea, it must assume, without any proof on either side, that the facts stated in the plea are correctly stated, and incorrectly set forth in the bill, then it would be deciding the case upon such an issue as would strike out the very gist of the complainant’s case, and exclude the facts upon which the whole equity is founded, if the complainant had any..................Id. 11. It is a general rule, that a plea ought not to contain more defences that one; various facts can never be pleaded in one plea, unless they are all conducive to the single point on which the defendant means to rest his defence.............,.............. Id. See Injunction. CHARGE OF THE COURT. 1. The grantor in the deed was David Carrick Buchanan, and he declared in it that he was the same person who was formerly David Buchanan. The circuit court were required to charge the jury, that it was necessary to convince the jury, by proofs in court, that 548 David Carrick Buchanan was the same person as the grantor named in the patent, David Buchanan ; and that the statement by the grantor was no proof to establish the fact; the circuit court instructed the jury, that they must satisfied from the deed and other documents, and the circumstances of the case, that the grantor in the deed was the same person to whom the patent was issued ; and they declared their opinion that such was the fact. The principle is well established, that a court may give their opinion on the evidence to the jury, being careful to distinguish between matters of law and matters of opinion, in regard to the facts. When a matter of law is given by the court to the jury, it should be considered by the court as conclusive ; but a mere matter of opinion as to the facts will only have such an influence on the jury as they may think it entitled to. Games v. Dunn....*822 CHESAPEAKE AND OHIO CANAL COMPANY. 1. The legislatures of Virginia and Maryland authorized the surrender of the charter granted by those states to the Potomac Company to be made to the Chesapeake and Ohio Canal Company, the stockholders of the Potomac Company assenting to the same ; a provision was made in the acts authorizing the surrender, for the payment of a certain amount of the debts of the Potomac Company, by the Chesapeake and Ohio Canal Company, a list of those debts to be made out, and certified by the Potomac Company. This assignment does not impair the obligation of the contract of the Potomac Company with any one of its creditors, nor place him in a worse situation in regard to his demand; the means of payment possessed by the old company are carefully preserved, and indeed, guarantied by the new corporation; and if the fact can be established, that some bond fide creditors of the Potomac Company were unprovided for in the new charter, and have, consequently, no redress against the Chesapeake and Ohio Canal Company, it does not follow, that they are without remedy. Smith v. Chesapeake and Ohio Canal Company *45 CIRCUIT COURTS. 1. The mode of conducting trials, the order of introducing evidence, and the times when it is to be introduced, are properly matters belonging to the practice of the circuit courts, with which the.supreme court ought not to interfere; unless it shall choose to prescribe some fixed general rules on the INDEX. Ö03 subject, under the authority of the act of congress. The circuit courts possess this discretion in as ample a manner as other judicial tribunals. Philadelphia and Trenton Railroad Company v. Stimpson.........*448 CIRCUIT COURT OF THE DISTRICT OF COLUMBIA. See Heads of Departments, 1-5 : Mandamus. CONSIGNOR AND CONSIGNEE. See Factor. CONSTITUTION. 1. The fourth article of the constitution of the United States, which declares that “ full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state,” cannot, by any just construction of its words, beheld to embrace an alleged error in a decree of a state court, asserted to be in collision with a prior decision of the same court in the same case. Mitchell v. Lenox...........,...... .*49 CONSTITUTIONALITY OF STATE LAWS. 1. The plaintiffs, merchants of New York, instituted a suit in the circuit court of Alabama, against the administrators of the maker of a note, dated in New York, and payable in New York ; the act of the assembly of Alabama provides, that the estate of a deceased person, which is declared to be insolvent, shall be distributed by the executors or administrators, according to the provisions of the statute, among the creditors; and that no suit or action shall be commenced or sustained against any executor or administrator, after the estate of the deceased has been represented as insolvent, except in certain cases not of the description of that on which this suit was instituted : Held, that the insolvency of the estate, judicially declared under the statute of Alabama, was not sufficient in law to abate a suit instituted in the circuit court of the United States, by a citizen of another state, against the representative of a citizen of Alabama. Suydam v. Broadnax...........................*67 2. The exceptions in the sixth section of the law of Alabama, in favor of debts contracted out of the state, prevent the application of the statute, or its operation, in a case of a debt originating in and contracted by the deceased out of the state of Alabama... .Id. 3. A sovereign stat^ and one of the states of this Union, if the latter were not restrained by constitutional prohibitions, might, in virtue of sovereignty, act upon the contracts of its citizens, wherever made, and discharge them, by denying the right of action upon them in its own courts; but the validity of such contracts as were made out of the sovereignty or state, would exist and continue everywhere else, according to the lex loci contract its.......................id. CONSTRUCTION OF STATUTES. 1. It is undoubtedly a duty of the court to ascertain the meaning of the legislature, from the words used in the statute, and the subject-matter to which it relates; and to restrain its operations within narrower limits than its words import, if the court are satisfied that the literal meaning of its words would extend to cases, which the legislature never designed to include in it. Brewer v. Blougher............................*178 2. In expounding a penal statute, the court, certainly, will not extend it beyond the plain meaning of its words ; for it has been long and well settled, that such statutes must be construed strictly ; yet the evident intention of the legislature ought not to be defeated by a forced and over-strict construction. United States v. Morris.............*464 See Slave-Trade. CONSTRUCTION OF UNITED STATES STATUTES. 1. Action on a bond to the United States for the liberty of the jail-yard of Portland, in the state of Maine; the condition of the bond was, that J. K. and B. K. should “ continue true prisoners in the custody of the jailer, within the limits of the jail-yard ; ” it was agreed by the counsel for the plaintiff and defendants, that J. K. and B. K. had re. mained within “ the limits of the jail-yard,” as established under the laws of 1787, of Massachusetts, then prevailing in Maine; the limits of the jail-yard having, in October, 1798, been extended over the whole county ; but had not remained within the limits established on the 29th of May 1787, and existing when the act of congress was passed, 4th of January 1800, authorizing persons under process from the United States, to have the “jail limits” as established by the laws of the state: Held, that the act of congress of 19th May 1828, gave the debtors imprisoned under executions from the courts of the United States, at the suit of the United States, the privilege of the jail limits in the several states, as they were fixed by 54V 604 INDEX. the laws of the several states at the date of that act. United States v. Knight.......*302 2. Whatever might be the liability of the officer who took the bond from the defendants, if the jail limits continued to be such as were established under the laws of Massachusetts, of 1787, the bond not having been taken under that law, and the condition being different from the requirements of those regulations ; the parties to the bond, the suit being upon the bond, are bound for nothing whatsoever, but what is contained in the condition ; whether it be or be not conformable with the law........... ...................Id. 3. The statute of May 19th, 1828, entitled, “ an act to further regulate processes in the courts of the United States,” which proposes only to regulate the mode of proceeding in civil suits, does not divest the public of any right, does not violate any principle of pub lie policy, but on the contrary, makes provision, in accordance with the policy which the government has indicated, by many acts of previous legislation, to conform to state laws in giving to persons imprisoned under their execution, the privilege of jail limits, embracing executions at the suit of the United States.....................................Id. 4. The act of congress under which title was claimed, being a private act, and for the benefit of the city of Mobile, and certain individuals ; it is fair to presume, it was passed with reference to the particular claims of individuals, and the situation of the land embraced in the law, at the time it was passed. Pollard's Heirs v. Kibbe..........*353 5. A lot of ground was granted by the Spanish government of Florida, in 1802, to Forbes & Company, in the city of Mobile, which was afterwards confirmed by the commissioners of the United States ; the lot granted was 80 feet in front, and 304 feet in depth, bounded on the east by Water street; this, while the Spanish government had possession of the territory, was known as “ a water lot.” In front of this lot, was a lot which, at the time of the grant of the lot to Forbes & Company, was covered by the water of the bay and river of Mobile, the high tide flowing over it; and it was separated from Forbes & Company’s lot, by Water street; it was afterwards, in part, reclaimed by Lewis, who had no title to it, and who was afterwards driven off by one of the firm of Forbes & Company; a blacksmith’s shop was then put on the lot by them ; and Lewis, again, by proceedings at law, obtained possession of the blacksmith’s shop, it not being his improvement ; the improvement was first made in 1823 ; the Spanish governor, in 1809, after" the Louisiana treaty of 1803, and before the territory west of the Perdido was out of the possession of Spain, granted the lot in front of the lot owned by Forbes & Company, to William Pollard ; but the commissioners of the United States, appointed after the territory was in the full possession of the United States, refused to confirm the same, “ because of the want of improvement and occupancy.” In 1824, congress passed an act, the second section of which gave to those who have improved them, the lots in Mobile, known under the Spanish government as “ water lots ;” except when the lot so improved had been alienated, and except lots of which the -Spanish government had made “ new grants,” or orders of survey, during the time the Spanish government had “ power ” to grant the same; in which case, the lot was to belong to the alienee or the grantee. In . 1836, congress passed an act for the relief of William Pollard’s heirs, by which the lot -granted by the Spanish government of 1809, was given to the heirs, saving the rights of third persons; and a patent for this lot was issued to the heirs of William Pollard, by the United States, on the second of July 1836: Held, that the lot lying east of the lot granted in 1802, by the Spanish government, to Forbes & Company, did not pass by that grant to Forbes & Company; that the act of congress of 1824 did not vest the title in the lot east of the lot granted in 1802 in Forbes & Company; and that the heirs of Pollard, under the second section of the act -of 1824, which excepted from the grant to the city of Mobile, &c., lots held under “ new grants ” from the Spanish government, and under the act of congress of 1886, were entitled to the lot granted in 1809, by the Spanish governor to William Pollard. .. .Id. 6. The term “ new grants,” in its ordinary acceptation, when applied to the same subject or object, is the opposite of “ old ;” but such cannot be its meaning in the act of congress of 1824 ; this term was doubtless used in relation to the existing condition of the territory in which such grants were made. The territory had been ceded to the United States by the Louisiana treaty; but in consequence of a dispute with Spain about the boundary line, had remained in the possession of Spain ; during this time Spain continued to issue evidences of titles to lands within the territory in dispute. The term “ new ” was very appropriately used as applicable to grants and orders of survey of this description, as contradistinguished from those issued before the cession... .Id. 7. The time when the Spanish government had the “ power ” to grant lands in the territory, by every reasonable intendment of the act of 550 INDEX. 605 •confess of 1824, must have been so designated with reference to the existing state of the territory, as between the United States and Spain ; the right to the territory being in the United States, and the possession in Spain. The language, “ during the time at which Spain had the power to grant the same,” was, under such circumstances, very appropriately applied to the case; it could, with no propriety, have been applied to the case, if Spain had full dominion over the territory, by the union of the right and the possession; and in this view, it is no forced interpretation of the word “ power,” to consider it here used as importing an imperfect right, as distinguished from complete lawful authority....................Id. S. The act of congress of 25th April 1812, 1 appointing commissioners to ascertain the titles and claims to lands on the east side of the Mississippi, and west side of the Perdido, and falling within the cession of France, •embraced all claims of this description; it •extended to all claims, by virtue of any grant, order of survey, or other evidence of claim whatsoever, derived from the French, British or Spanish governments ; and the reports of the commissioners show, that evidence of claims of various descriptions, issued by Spanish authority, down to 1810, come under their examination. And the legislation of congress shows many laws passed confirming incomplete titles, originating after the date of the treaty between France and Spain at St. Ildefonso; such claims are certainly not beyond the reach of congress to confirm ; although it may require a special act of congress for that purpose. Such is the act of congress of 2d July 1886, which confirms the title of William Pollard’s heirs to the lot which is the subject of this suit...................................Id. See Construction of Statutes, 2 : Perjury : Slave Trade. CONTRACTS. 1. It has been frequently held, that the device of covering property as neutral, when in truth it was belligerent, is not contrary to the laws of war or of nations; contracts made with underwriters in relation to property thus covered, have always been enforced in the courts of a neutral country, where the true character of the property, and the means taken to protect it from capture have been fairly represented to the insurers. The same doctrine has always been held, where false papers have been used to cover the property, provided the underwriter knew, or was bound to know, that such stratagems were always resorted to by persons engaged in that trade. If such means may be used to prevent capture, there can be no good reason for condemning with more severity the continuation of the same disguise, after capture, in order to prevent the.condemnation of the property, or to procure compensation for it, when it has been lost by reason of the capture. Courts of the capturing nation would never enforce contracts of that description ; but they have always been regarded lawful in the courts of a neutral country. De Valengin n. Duffy............................*282 2. The Bank of the Metropolis contracted to deliver a title in fee-simple to Guttschlick, of a lot of ground, and at the time of the contract they held the lot, by virtue of a sale made under a deed of trust, at which sale they became the purchasers of the property ; the same lot had, by a deed of trust, executed by the same person, been previously conveyed to another person, to indemnify an indorser of his notes, and it was by the trustee, afterwards, and after the contract with Guttschlick, sold and purchased by another : Held, that at the time of the contract, they had not a fee-simple in the lot, which could be conveyed to Guttschlick. Bank of the Metropolis v. Guttschlick.. *19 CORPORATION. 1. A corporation may be bound by contracts, not executed under their common seal, and by the acts of its officers in the course of their official duties ; when, in a declaration, it is averred, that a bank by its officers agreed to a certain contract, this averment imports everything to make the contract binding. Bank of the Metropolis v. Guttschlick. ..*19 2. A paper executed by the president and cashier of a bank, purporting to convey a lot of ground held by the bank, is not the deed of the corporation.........................Id. 3. An action of assumpsit was brought against the Bank of the Metropolis, on a contract under the seals of the president and cashier : Held, that the action was well brought; it makes no difference, in an action of assumpsit against a corporation, whether the agent was appointed under the seal or not; or whether he puts his own seal to a contract which he makes in behalf of the corporation....................................Id. 4. The artificial being, a corporation aggregate^ is not, as such, a citizen of the United States ; yet the courts of the United States will look beyond the mere corporate character, to the individuals of whom it is composed ; and if they were citizens of a different state from. 551 606 INDEX. the party sued, they are competent to sue in the courts of the United States; but all the corporators must be citizens of a different state from the party sued. The same principle applies to the individuals composing a corporation aggregate, when standing in the attitude of defendants, which does when they are in that of plaintiffs. Commercial and Railroad Bank v. Slocomb, *60; s. P. Ervine v. Lowry............*393 5. The legislature of the state of New York, on, the 18th of April 1823, incorporated “The New York and Schuylkill Coal Company the act of incorporation was granted for the purpose of supplying the city of New York and vicinity with coal; and the company having, at great expense, secured the purchase of valuable apd extensive coal lands in' Pennsylvania, the legislature of New York, to promote the supply of coal as fuel, granted the incorporation, with the usual powers of a body corporate, giving to it the power to purchase and hold lands, to promote and attain the objects of the incorporation. The recitals in the act of incorporation showed that this power was granted with special reference to the purchase of lands in the state of Pennsylvania ; the right to hold the lands so purchased depends on the assent or permission, express or implied, of the state of Pennsylvania. Runyan v. Coster ................................ .*122 6. The policy of the state of Pennsylvania, on the subject of holding lands in the state, by corporations, is clearly indicated by the act of the legislature of Pennsylvania, of April 6th, 1833. Lands held by corporations of the state, or of any other state, without license from the commonwealth of Pennsylvania, are subject to forfeiture to the commonwealth ; but every such corporation, its feoffee or feoffees, hold and retain the same, to be divested or dispossessed by the commonwealth, by due course of law. The plain interpretation of this statute is, that until the claim to a forfeiture is asserted by the state, the land is held subject to be divested by due course of law, instituted by the commonwealth alone, and for its own use.. .Id. *J. The supreme court of Pennsylvania having decided, that a corporation has, in that state, a right to purchase, hold and convey land, until some act is done by the government, according to its own laws, to vest the estate in itself, the estate may remain in a corporation so purchasing or holding lands ; but the estate is defeasible by the commonwealth. This being the law of Pennsylvania, it must govern in a case where land in Pennsylvania had been purchased by a corporation, created by the legislati ve of New York, for the pur pose of supplying coal from Pennsylvania to« the city of New York...............Id. 8. In the case of the Bank of Augusta v. Earle, -13 Pet. 584, and in various other cases decided in the supreme court, a corporation is considered an artificial being, existing only ‘ in contemplation of law ; and being a mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. Corporations created by statute must depend for their powers, and the mode of exercising them, upon the true construction of the statute.Id. 9. A corporation can have ho legal existence out of the sovereignty by which it is created, as it exists only in contemplation of law, and . by force of the law ; and when that law ceases to operate, and is no longer obligato-ry, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty; but although it may live and have its being in that state only, yet it does not follow, that its existence there will not be recognised in other places; and its residence in one state ■ creates no insuperable objection to its power of contracting in another. The corporation must show that the law of its creation gave it authority to make such contracts ; yet, as . in the case of a natural person, it is not necessary that it should actually exist in the sovereignty in which the contract is made ; it is sufficient, that its existence, as an artificial person, in the state of its creation, is acknowledged and recognised by the state or nation where the dealing takes place; and that it is permitted by the laws of that place to exercise the powers with which it is endowed ................................. 10. Every power which a corporation exercises in another state, depends for its validity upon the laws of the sovereignty in which it is exercised ; a corporation can make no valid contract, without the sanction, express or implied, of such sovereignty; unless a case should be presented in which the right claimed by the corporation should appear to be secured by the constitution of the United States............................. Id” CRIMES. See Perjury. DAMAGES. See Factor. DEED. 1. A deed was executed in Glasgow, Scotland, by which land in Ohio, which had been pat- 552 INDEX/ 6or ► ented to David Buchanan by the United States, was conveyed to Walter Sterling ; the deed recited, that it was made in pursuance of a decree of the circuit court of the United States for the district of Virginia; no exemplification of the decree was offered in evidence, in support of the deed. The court held, that as Buchanan was the patentee of the land, although he made the deed in pursuance of a decree of the circuit court of Virginia, the decree could add nothing to the validity of the conveyance; and therefore, it was wholly unnecessary to produce an exemplification of the decree; the deed was good without the decree. Games v. Dunn............................... *322 2. The possession of a deed, regularly executed, is prima facie evidence of its delivery; under ordinary circumstances, no other evidence of the delivery of a deed than the possession of it, by the person claiming under it, is required.................Id. 3. A 'deed was executed by David Carrick Buchanan, stating that he was the same person who was formerly David Buchanan, the patentee of land in Ohio; the court held, that this was primd facie evidence of the fact alleged; the law knows but one Christian name ; and the omission and insertion of the middle name, or of the initial letter of that name, is immaterial; and it is competent for the party to show, that he is known by the one, as well as by the other. Id. DEED OF TRUST. I. In case of a deed of trust, executed to secure a debt, unless in case of some extrinsic matter of equity, a court of equity never interferes to delay or prevent a sale according to the terms of the trust; and the only right of the grantor in the deed, is the right to any surplus which may remain of the money for which the property was sold. Bank of the Metropolis v. Guttschlick.............*19 DISTRICT OF COLUMBIA. 1. The county of Alexandria, in the district of Columbia, cannot be regarded as standing in the same relation to the county of Washington that the states of the Union stand in relation to one another. Bank of Alexandria n. Dyer.............,................*141 See Executors and Administrators, 8: Limitation of Actions. DUTIES. See Perjury. EJECTMENT. 1. In an action of ejectment, the defendants i having entered into the consent rule, the f plaintiff, in Ohio, is not to be called upon toprove the calls of the patent under which he i claims, on the ground of establishing the I different corners; the defendants are bound to admit, after they have entered into the consent rule, that they are in possession of the premises claimed by the lessor of the . plaintiff. Games v. Dunn.............. *322 | See Practice, ERROR. See Writ of Error. EVIDENCE. 1. The proceedings in an action against the ' indorser of a note, by the holder, which gave to a trustee, by the terms of the deed of trust, a right to sell property held for the indemnity of the indorser, were proper evidence in an action on a contract for the sale of the lot, from which the party who had purchased under another title had been evicted by a title obtained under the deed of trust. No exceptions to the regularity of the proceedings offered in evidence can be taken, which should have been properly made in the original action by the party sued on the same. Bank of the Metropolis v. Guttschlick.........................*19 i 2. Whether evidence be admissible or not, is a ; question for the court to decide; but whether it be sufficient or not to support the issue, is a question for the jury; the only case in which the court can make inferences from evidence, and pass upon its sufficiency, is on a demurrer to evidence................ Id. । 3. When the deeds of the defendant in ejectment have been referred to by the plaintiff,. for the sole purpose of showing that both parties claim under the same person; this does not prevent the plaintiff impeaching the deeds afterwards for fraud. Remington v. Linthicum... ......................*84 4. Primd facie evidence of a fact, is such, as in judgment of law is sufficient to establish the fact, and if not rebutted, remains sufficient for evidence of it. United States v. Wiggins............................ *334 5. The rule is, that secondary or inferior shall not be substituted for evidence of a higher nature which the case submits of; the reason of that rule is, that an attempt to substitute the inferior for the higher, implies that the higher would give a different aspect to the case of the party introducing the lesser; 553 «08 INDEX. “the ground of the rule is a suspicion of fraud.” But before the rule is applied, the nature of the case must be considered, to ■ make a right application of it; and if it shall be seen, that the fact to be proved is an act of the defendant, which, from its nature, can be concealed from all others except him whose co-operation was necessary before the act could be complete; then the admissions and declarations of the defendant, either in writing, or to others, in relation to the act, become evidence. United States v. Wood...................................*431 6. It is certainly true, as a general rule, that the interpretation of written instruments properly belongs to the court, and not to the jury; but there are cases in which, from the different senses of the words used, or their obscure and indeterminate reference to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury, fof the purpose of carrying into effect the real intention of the parties. This is especially applicable to eases of commercial correspondence, where the real objects, and intentions, and agreements of the parties are often to be arrived at only by allusions to circumstances which are but inperfectly developed. Brown n. McGran....................................*479 7. It is incumbent on those who seek to show that the examination of a witness has been improperly rejected, to establish their right to have the evidence admitted; for the court will be presumed to have acted correctly, until the contrary is established. Philadelphia & Trenton Railroad Company v. Stimpson.......................................*448 8. To entitle a party to examine a witness in a patent cause, the purpose of whose testimony is to disprove the right of the patentee to the invention, by showing its use prior to the patent, by others, the provisions of the patent act of 1836, relative to notice, must be strictly complied with..................Id. 9. It is incumbent on those who insist- upon the right to put particular questions to a witness, to establish that right beyond any reasonable doubt, for the very purpose stated by them; and they are not afterwards at liberty to desert that purpose, and to show the pertinency or relevancy of the evidence for any other purpose not then suggested to the court................................ Id. 10. A party has no right to cross-examine any witness, except as to facts and circumstances connected with the matters stated in his direct examination. If he wishes to examine him on other matters, he must do so by making the witness his own; and calling him as such, in the subsequent progress of the cause. A party cannot, by his own omission to take an objection to the admission of improper evidence, brought out on a cross-examination, found a right to introduce testimony in chief, to rebut it or explain it.. ..............................Id. 11. Parol evidence, bearing upon written contracts and papers, ought not to be admitted in evidence, without the production of such written contracts or papers ; so as to enable both the court and the jury to see, whether or not the admission of the parol evidence, in any manner, will trench upon the rule that parol evidence is not admissible to vary or contradict written contracts or papers./«?. 12. As a general rule, and upon general principles, the declarations and conversations of the plaintiff are not admissible evidence in favor of his own rights; this is, however, but a general rule, and admits and requires various exceptions. There are many cases in which a party may show his declarations comport with acts in his own favor, as a part of the res gestae; there are other cases in which his material declarations have been admitted................................ .Id. 13. In an action for an assault and battery and wounding, the declarations of the plaintiff to . his internal pains, aches, injuries and symptoms, to the physician attending him, are ad- . missible,for the purpose of showing the nature and extent of the injuries done to him. In many cases of inventions, it is hardly possible in any other manner to ascertain the precise time and exact origin of the invention... Id. 14. The conversations and declarations of a patentee, merely affirming that, at some former period, he had invented a particular machine, may well be objected to; but his conversations and declarations, stating that he had made an invention, and describing its details, and explaining its operations, are properly deemed an assertion of his right, at that time, as an inventor, to the extent of the facts and details which he then makes known, although not of their existence at an anterior time. Such declarations, coupled with a description of the nature and objects of the invention, are to be deemed a part of the res gestae, and legitimate evidence that the invention was then known and claimed by him; and thus its origin may be fixed at least as early as that period............... 16. If the rejection of evidence is a matter resting in the sound dincretion of the court, it cannot be assigned as error...............' 16. Testimony was not offered by a defendant^ or stated by him as matter of defence, in the stage of the cause when it is usually introduced according to the practice of the court; it was offered, after the defendant’s counsel 554 INDEX. 609 had stated, in open court, that they had closed their evidence ; and after the plaintiff, in consequence of that declaration, had discharged his own witness. The circuit court refused to admit the testimony ; Held, that this decision was proper........Id. 17. A deed was executed in Glasgow, Scotland, by which land in Ohio, which had been patented by the United States to David Buchanan, was conveyed to Walter Sterling; the deed recited that it was made in pursuance of a decree of the circuit court of the United States for the district of Virginia; no exemplification of the decree was offered in support of the deed. The court held, that as Buchanan was the patentee of the land, although he made the deed in pursuance of the decree of the circuit court of Virginia, the decree could add nothing to the validity of the conveyance, and therefore, it was wholly unnecessary to produce an exemplification of the decree; the deed was good without the decree. Games v. Dunn. .*322 18. The possession of a deed, regularly executed, is primd facie evidence of its delivery; under ordinary circumstances no other evidence of the delivery of a deed than the possession of it, by the person claiming under it is required............................... Id. 19. The recital in a deed, by the grantor, that he, David Carrick Buchanan, was the patentee of the land conveyed under the name of David Buchanan, is primd facie evidence of the fact stated. The law knows but one Christian name, and the omission, or inser-’ tion of the middle name, or of the initial letter of that name, is immaterial; and it is competent for the party to show that he is known as well without as with the middle name................................... .Id. See Parol Evidence : Sales for Taxes, 2. EXCHANGE. 1. A paper was executed by R. R. K., of New Orleans, stating that the grantor, for and in consideration of a certain lot of ground (describing it), conveyed and transferred unto J. B. and S. B., all his right, title and interest in a certain tract or parcel of land (describing it), hereby warranting and defending unto the said J. B. and S. B., all his right and title in the same, and unto all persons claiming under them. The paper, called under the laws of Louisiana “ an act of sale,” was signed by R. R. K., J. B. and S. B., and a notary of New Orleans ; and was deposited in the office of the notary. This was not an “ exchange of property,” according to the laws of Louisiana ; and J. B. and S. B. did not, by accepting the transfer of property made by the same, and signing the paper, incur the two obligations imposed on all vendors by the civil code of Louisiana, that of delivering and that of warranting the lot of ground sold to R. R. K.; and did not thereby become liablq for the value of the -property stated in the said “ act of sale ” to , have been given for the property conveyed J thereby. Preston v. Keene............*133 i 2. Exchange, according to the civil code of 1 Louisiana, imports a reciprocal contract; which, by art. 1758 of that code, is declared, when the parties expressly enter into mutual agreements.............................Id. 3. An exchange is an executed contract; it -operates, per se, as a reciprocal conveyance of the thing given and of the thing received. -The thing given or taken in exchange must be specific, and so distinguishable from all - other things of the like kind as to be clearly -known and identified. Under the civil law of Louisiana, the exchanger who is evicted, has a choice either to sue for damages, or for the thing he gave in exchange; but he must first be evicted, before his cause of action can accrue................... .Id. EXECUTIVE DEPARTMENTS? See Heads of Departments, 1-5. EXECUTORS AND ADMINISTRATORS. 1. Where there are two executors in a will, it ~ is clear, that each has a right to receive the debts due to the estate, and all other assets < which shall come into his hands ; and he is answerable for the assets he receives ; this responsibility results from the right to re- -ceive, and the nature of the trust. A payment of the sums received by him to his co- -executor, will not discharge him from his liability to the estate ; he is bound to account for all assets which come into his hands, and to appropriate them according to the directions of the will. Edmonds v. Crenshaw.*!^ 2. Executors are not liable to each other ; but each is liable to the cestuis que trust and de- ‘ visees, to the full extent of the funds re- " ceived by him..........................Id. 3. The removal of an executor from a state in which the will was proved, and in which letters-testamentary were granted, does not ~ discharge him from his liability as executor ; much less does it release him from his liability for assets received by him and paid over v to his co-executor................... .Id. 4. Whatever property or money is lawfully . recovered by the executor or administrator, -after the death of his testator or intestate, 555 610 INDEX. in virtue of his representative character, he holds as assets of the estate; and he is liable therefor, in such representative character, to the party who has a good title thereto. The want of knowledge, or the possession of knowledge, on the part of the administrator, as to the rights and claims of other persons, upon Hhe money thus received, cannot alter the rights of the party to whom it ultimately belongs. De Valengin v. Duffy...................................*282 5. The owner of property or of money received by an administrator, may resort to the administrator, in his personal character, and charge him, de bonis propriis, with the amount thus received; he may do this, or proceed against him as executor or administrator, at his election. But whenever an executor or administrator, in his representative character, lawfully receives money or property, he may be compelled to respond to the party entitled, in that character ; and will not be permitted to throw it off, after he has received the money, in order to defeat the plaintiffs’ action. .....................................Id. 6. Letters-testamentary to the estate of Edward Coursault, a merchant who had died at Baltimore, were granted to Gabriel Paul, one of the executors named in the will; the other executor, Aglae Coursault, the wife of Edward Coursault, did not qualify as executrix, nor did she renounce the execution of the will. Afterwards, on the application of Aglae Coursault, stating she was executrix of Edward Coursault, accompanied with a power of attorney, given to her by Gabriel Paul, the qualified executor, who had removed to Missouri, the commissioners under the treaty of indemnity with France, awarded to the estate of Edward Coursault a sum of money, for the seizure and confiscation of the Good Friends and cargo, by the French government. During the pendency of the claim before the commissioners, Aglae Coursault died; and letters of administration, with the will annexed, were, on the oath of Thomas Dunlap, that the widow and executrix of Edward Coursault was dead, granted by the orphans’ court of the county of Washington, in the district of Columbia, to the plaintiff in error, Elias Kane, a resident in Washington; the sum awarded by the commissioners was paid to Ehas Kane, by the government of the United States. Gabriel Paul, the executor of Edward Coursault, brought an action against Elias Kane, for the money paid to him: Held, that he was entitled to recover the same; the letters-testamentary granted in Maryland, entitled the executors of Edward Coursault to recover, without his having the letters of ad ministration granted by the orphans’ court of Washington repealed or revoked. Kane v. Paul...........................*83 7. At common law, the appointment of an executor vests the whole personal estate in the person appointed executor, which he holds as trustee for the purposes of the will; and he holds the legal title in all the chattels of the testator; for the purpose of administering them, he is as much the proprietor of them as was the testator ; the ordinary cannot transfer those chattels to any other person, by granting administration of them. Id. 8. The act of congress of the 24th June 1812, gives to an executor or administrator, appointed in any state of the United States, or in the territories, a right to recover from any individual in the district of Columbia, effects or money belonging to the testator or the intestate, in whatever way the same may have been received; if the law does not permit him to retain it on account of some relations borne to the testator or to his executor, which defeats the rights of the executor or administrator ; letters-testamentary or letters of administration obtained in either of the states or territories of the Union, give a right to the person having them to receive and give discharges for such assets, without suit, which may be in the hands of any person within the district of Columbia. The right to receive from the government of the United States, either in the district of Columbia, or in the state where letters have been granted, any sum of money which the government may owe to the testator or intestate, at the time of his death, or which may become due thereafter, or which may accrue to the government as trustee for a testator or intestate, in any way, or at any time, is given by that act. A bond fide payment of a debt to the administrator, which was due to the estate, is a legal discharge to the debtor, whether the administration be void or voidable.......................... .Id. 9. The certificate of the register of wills, annexed to the proceedings of the orphans’ court of Maryland, granting letters-testamentary to the executor, showed, that the will had been proved, and that the letters-testamentary had been granted. This is proof that the person holding the letters-testamentary is executor, so far as the law requires it to be proved, in an action of assumpsit, upon a cause of action which arose in the time of the testator or of the executor. On the plea of the general issue, in such an action, and even in a case where that plea raises the question of right of title in the executor, the certificate of probate and qualification meets the requisition. A 556 INDEX. 611 judicial examination into their validity can only be gone into upon a plea in abatement, after oyer has been craved and granted; and then, upon issue joined, the plaintiff’s title, as executor or administrator, may be disputed, by showing any of those causes which make the grant void ab initio, or that the administration had been revoked.........Id. 10. The declaration, in an action by an executor, for the recovery of money received by the defendant, after the decease of the testator, may be in the name of the plaintiff, as executor, or in his own name, without stating that he is executor. The distinction is, that when an executor sues on a cause of action which occurred in the lifetime of his testator, he must declare in the detinet, that is, in his representative capacity only; but when the cause of action accrues after the death of the testator, if the money, when recovered, will be assets, the executor may declare in bis representative character, or in his own name............................ Id. FACTOR. J. In the case of a factor who sells the goods of his principal in his own name, upon a credit, and dies before the money is received, if it is afterwards paid to the administrator, in his representative character, the creditor would be entitled to consider it as assets in his hands ; and to charge him in the same character in which he received it. The debtor, that is to say, the party who purchased from the factor, without any knowledge of the true owner, and who paid the money to the administrator, under the belief that the goods belonged to the factor, is unquestionably discharged by this payment; yet he cannot be discharged, unless he pays it to one lawfully authorized to receive it, except only in his representative character. De Valengin v. Duffy................... *282 2. An action was instituted against the con-. signees of two hundred bales of cotton, shipped by the direction of the owner to Liverpool, on which the owner had received an advance, by an acceptance of his bills on New York; which acceptance was paid by bills drawn on the consignees of the cotton in Liverpool; some time after the shipment of the cotton, the owner wrote to the consignees in Liverpool, expressing his “ wishes ” that the cotton should not be sold until they should hear further from him; in answer to this letter, the consignees said, “ your wishes in respect to the cotton are noted accordingly.” No other provision than from the sale of the cotton for the payment of the advance, was made by the consignor, when the same was shipped; and no instructions for its reservation from the sale were given, i when the shipment was made. Immediately j after the acceptance of the bill drawn against the cotton, on the consignees in Liverpool, they sold the same for a profit of about ten per cent, on the shipment; cotton rose in price in Liverpool to more than fifty per cent, profit on the invoice, between the acceptance of the bill of exchange, and the arrival of the same at maturity. The shipper instituted an action against the consigneesfor the recovery of the difference between the actual sales and the sum thesame would have brought had it been sold at the subsequent high prices at Liverpool. Brown v. McGran.... *479 8. There can be no reasonable doubt, that in particular circumstances, a wish expressed by a consignor to a factor, may amount to a positive command.......................... Id. 4. In the case of a simple consignment of goods, without any interest in the consignee, or any advance or liabilityineurred on account thereof, the wishes of the consignor may fairly be presumed to be orders; and the “ noting the wishes accordingly,” by the consignees, an assent to follow them. But very different considerations apply, where the consignee is one clothed with a special interest and a special property, founded upon advances and liabilities...................Id. 5. Whenever a consignment is made to a factor, for sale, the consignor has a right, generally, to control the sale thereof, according to his own pleasure, from time to time, if no advances have been made, or liabilities incurred, on account thereof; and the factor is bound to obey his orders; this arises from the ordinary relation of principal and agent. If, however the factor makes advances, or incurs liabilities on account of the consignment, by which he acquires a special property in the goods, then the factor has a right to sell so much of the consignment as may be necessary to reimburse such advances, or meet such liabilities; unless there be some agreement between himself and the consignor which contracts or varies this right.... Id. 6. If, contemporaneously with the consignment, and advances or liabilities, there are orders given by the consignor, which are assented to by the factor, that the goods shall not be sold, before a fixed time, in such a case, the consignment is presumed to be received subject to such order; and the factor is not at liberty to sell the goods to reimburse his advances, until after that time has elapsed. So, when orders are given, not to sell below a fixed price; unless the consignor shall, after due notice and request, refuse to provide other means to reimburse the factor. 557 612 INDEX. In no case, will the factor be at liberty to sell the consignment, contrary to the orders of the consignor, although he has made advances or incurred liabilities thereon; if the consignor stands ready and offers to reimburse and discharge such advances and liabilities.........................Id. 7. When a consignment is made generally, without any specific orders as to the time and mode of sales, and the factor makes advances or incurs liabilities on the footing of such consignment, the legal presumption is, that the factor is intended to be clothed with the ordinary rights of factors, to sell, in the exercise of a sound discretion, at such time and in such manner as the usage of trade and his general duty require, and to reimburse himself for his liabilities, out of the proceeds of the sale; and the consignor has no right, by any subsequent orders, given after advances have been made, or liabilities incurred by the factor, to suspend or control this right of sale ; except so far as respects the surplus of the consignment, not necessary for the reimbursement of such advances or liabilities........................... Id. 8. If a sale of cotton, in Liverpool, by a factor, has been made on a particular day, tor-tiously, and against the orders of the owner, the owner has a right to claim damages for the value of the cotton, on the day the sale was made, as for a tortious conversion. If the sale of the cotton by the factor was authorized on a subsequent day, and the cotton has been sold against orders, before that day, the damages to which the owner may be entitled will be regulated by the price of cotton on that day. But the rate of damages is not to be obtained from the prices of cotton at any time between the day when the cotton was sold, against the orders of the owner, and the day on which the sale was authorized by him.....................Id. FLORIDA LAND-CLAIMS. 1. A grant of land by Estrada, the governor of East Florida, was made on the 1st of August 1815, to Elizabeth Wiggins, on her petition, stating, that “ owing to the diminution of trade, she will have to devote herself to the pursuits of the country;” the grant was made for the quantity of land apportioned by the regulations of East Florida, to the number of the family of the grantee ; it was regularly surveyed by the surveyor-general, according to the petition and grant; no settlement or improvement was ever made by the grantee, nor by any one acting for her, on the property. In 1831, Elizabeth Wiggins presented a petition to the superior court of East Florida, praying for a confirmation of the grant; and in July 1838, the court gave a decree in favor of the claimant; on an appeal to the supreme court of the United States, the decree of the superior court of East Florida was reversed. The court held, that by the regulations established on the 25th November 1818, by Governor Coppinger, the grant had become void, because of the non-improvement, and the neglect to settle the land granted. United States v. Wiggins.............................. *344 2. The existence of a foreign law, especially when unwritten, is a fact to be proved like any other, by appropriate evidence.......Id. 3. A copy of a decree by the governor of East Florida, granting land to a petitioner, while Spain had possession of the territory, certified by the secretary of the government to have been faithfully made from the original in the secretary’s office, is evidence in the courts of the United States. By the laws of Spain, prevailing in the province at that time, the secretary was the proper officer to give copies; and the law trusted him for this particular purpose, so far as he acted under its authority; the original was confined to the public office...............Id. 4. The eighth article of the Florida treaty stipulates, that “ grants of land made by Spain, in Florida, after the 24th of January 1818, shall be ratified and confirmed to the persons in possession of the land, to the same extent that the same grants would be valid, if the government of the territory had remained under the dominion of Spain. The government of the United States may take advantage of the non-performance of the conditions prescribed by the law relative to grants of land ; if the treaty does not provide for the omission.................. Id. 5. In the cases of Arredondo, 6 Pet. 691, and Percheman, 7 Ibid. 51, it was held, that the words in the Florida treaty, “ shall be ratified and confirmed,” in reference to perfect titles, should be construed, “ are ” ratified and confirmed. The object of the court, in these cases, was, to exempt them from the operation of the eighth article, for that they were perfect titles by the laws of Spain when the treaty was made ; and when the soil and sovereignty of Florida were ceded by the second article, private rights of property were, by implication, protected. By the law of nations, the rights to property are secured, when territories are ceded; and to reconcile the eighth article of the treaty with the law of nations, the Spanish side of the article was referred to in aid of the American side. The court held, that perfect titles “ stood confirmed ” by the treaty; and must be so 558 INDEX. 612 ' recognised by the United States, in our courts......... ................... .Id. 6. Perfect titles to lands, made by Spain, in the territory of Florida, before the 24th January 1818, are intrinsically valid, and exempt from the provision of the eighth article of the treaty : and they need no sanction from the legislative or judicial departments of the United States.............Id. 7. The eighth article of the Florida treaty was intended to apply to claims to land, whose validity depended on the performance of conditions, in consideration of which the concessions had been made; and which must have been performed before Spain was bound to perfect the titles. The United States were bound, after the cession of the country, to the same extent that Spain had been bound before the ratification of the treaty, to perfect them by legislation and adjudication......................... Id. 8. A grant of land by the government of Florida, made before the cession of Florida to the United States by Spain, confirmed : every point involved in the case having been conclusively settled by the court in their former adjudications in similar cases. United States v. Waterman.........,.......*478 FRAUD. 1. If there be any one ground upon which a court of equity affords relief, it is an allegation of fraud, proved or admitted. Atkins v. Dick............................. *114 2. Courts of equity will permit independent agreements which go to show a deed, on its face absolute, was intended only as a mortgage, to be set up against the express terms of the deed, only on the ground of fraud ; considering it a fraudulent attempt in the mortgagee, contrary to his own express agreement, to convert a mortgage into an absolute deed. It is equally a fraud on the part of a debtor, to attempt to convert his contract as principal, into that of a surety only. Sprigg v. Bank of Mount Pleasant..................................*201 HABEAS CORPUS. See Holmes v. Jennison, *540. HEADS OF DEPARTMENTS. 1. On the 3d of March 1837, congress passed an act giving to the widow of any officer who had died in the naval service of the United States, authority to receive, out of the navy pension fund, half the monthly pay to which the deceased officer would have been entitled under the acts regulating the pay in the navy, in force on the 1st day of January 1835. On the same day, a resolution was adopted by congress, giving to Mrs. Decatur, widow of Captain Stephen Decatur, a pension for five years, out of the navy pension fund,, and in conformity with the act of 30th June-1834, and the arrearages of the half-pay of a post-captain, from the death of Commodore Decatur, to the 30th June 1834; the arrearages to be invested in trust for her, by the secretary of the treasury. The pension and arrearages, under the act of 3d March 1837, were paid to Mrs. Decatur, on her application to Mr. Dickerson, the secretary of the navy, under a protest by her, that by receiving the same she did not prejudice her claim under the resolution of the same date ; she applied to the secretary of the navy, for the pension and arrears, under the resolution, which were refused by him; afterwards, she applied tn Mr. Spaulding, who succeeded Mr. Dickerson as secretary of the navy, for the pension and arrears, which were refused by him. The circuit court of the county of Washington, in the district of Columbia, refused to grant a mandamus to the secretary of the navy, commanding him to pay the arrears, and to allow the pension under the resolution of March 3d, 1837 : Held, that the judgment of the circuit court was correct. Decatur v. Paulding...............................*49T 2. In the case of Kendall v. United States, 12: Pet. 527, it was decided by the supreme court, that the circuit court for Washington county, in the district of Columbia, had the power to issue a mandamus to an officer of the federal government, commanding him to-do a ministerial act....................Id. 3. In general, the official duties of the head of one of the executive departments, whether imposed by act of congress or by resolution, are not mere ministerial duties; the head of an executive department of the government, in the administration of the various and important concerns of his office, is continually required to exercise judgment and dis-creation ; he must exercise his judgment in expounding the laws and resolutions of congress, under which he is, from time to time, required to act; if he doubts, he has a right to call on the attorney-general to assist him with his counsel; and it would be difficult to imagine, why a legal adviser was provided by law for the heads of departments, as well as for the president, unless their duties were regarded as executive, in which judgment and discretion were to be exercised.......Id. 4. If a suit should come before the supreme court, which involved the construction of any of the laws imposing duties on the heads of the executive departments, the court certainly 559 €13 INDEX. would not be bound to adopt the construction given by the head of a department; and if they supposed his decision to be wrong, they would, of course, so pronounce their judgment. But the judgment of the court upon the construction of a law, must be given in a case in which they have jurisdiction, and in which it is their duty to interpret the act of congress, in order to-ascertain the rights of the parties in the cause before them. The court could not entertain an appeal from the decision of one of the secretaries, nor revise his judgment, in any case where the law authorized him to exercise his discretion br judgment; nor can it, by mandamus, act directly upon the officer, or guide and ■control his judgment or discretion in the matters committed to his care, in the ordinary discharge of his official duties. The interference of the court with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and this power was never intended to be given to them. .Id. 6. The principles stated and decided in the case of Kendall v. United States, 12 Pet. 610, 614, relative to the exercise of jurisdiction by the circuit court of the district of Columbia, where the acts of officers of the executive departments of the United States may be inquired into for the purpose of directing a mandamus to such officers, affirmed............................. Id. ILLEGITIMACY. See Local Law, 5-7. INDIAN TITLE. See North Carolina Land Titles, 1, 2. INJUNCTION. 1. A bill for an injunction was filed, alleging that the parties who had obtained a judgment at law for the amount of the bill of exchange, of which the complainant was indorser, had, before the suit was instituted, obtained payment of the bill from a subsequent indorser, out of the funds of the drawer of the bill, obtained by the subsequent indorser from one of the drawees. It was held, that it was not necessary to make the subsequent indorser, who was alleged to have made the payment, a party to the injunction bill. Atkins v. Dick............ .*114 2. In such a bill, an allegation that the amount due on the bill of exchange was paid, is sufficient; without stating the value or nature of the effects out of which the payment was made................................Id. INSOLVENT LAWS. 1. The constitutional and legal rights of a citizen of the United States, to sue in the circuit courts of the United States, do not permit an act of insolvency, completely executed under the authority of a state, to be a ; good bar against a recovery upon a contract made in another state. Suydam v. Broadnax........................,......... *67 INSURANCE. 1, Insurance was made, to the amount of $8000, on the ship Paragon, for one year; the policy contained the usual risks, and, among others, that of the perils of the sea ; the assured claimed for a loss by collision • with another vessel, without any fault of the master or crew of the Paragon; and also insisted on a general average and contribution. The Paragon was in part insured; and in November 1836, in the year during which the policy was in operation, she sailed from Hamburg, in ballast, for Gottenburg, for a cargo of iron, for the United States ; while proceeding down the Elbe, wiih a pilot on board, she came in contact with a galliot, and sank her; she lost her bow sprit, jib-boom and anchor, and was otherwise damaged, and put into Cuxhaven, a port at the mouth of the Elbe, and in the jurisdiction of Hamburg. The captain of the galliot libelled the Paragon, alleging that the loss of his vessel was caused by the carelessness or fault of those on board the Paragon; upon the hearing of the cause, the court decided, that the collision was not the result of the fault or carelessness of either side ; and that, therefore, according to the marine law of Hamburg, the loss was a general average loss, and to be borne equally by both parties; that is, that the Paragon was to bear one-half of the expense of her own repairs, and to pay one-half of the value of the galliot; and that the galliot was to bear the loss of the half of her own value, and to pay one-half of the repairs of the Paragon; the result of this decree was, that the Paragon was to pay $2600, being one-half of the value of the galliot ($3000), after deducting one-half of her own repairs, being $400. The owners of the Paragon, having no funds in Hamburg, the master was obliged to raise the money on bottomry; there being do cargo on board the Paragon, and no freight 1 earned, the Paragon was obliged to bear the 560 INDEX. 614 whole loss: Held, that the assured was entitled to recover. Peters v. Warren Insurance Company............................*99 3J. A loss by collision, without any fault on either side, is a loss by the perils of the sea, within the protection of the policy of insurance ; so far as the injury and repairs done to the Paragon itself extended, the underwriters were liable for all damages........Id. S. The rule, that underwriters are liable only for losses arising from the proximate cause of the loss, and not for losses arising from a remote cause, not immediately connected with the peril, is correct, when it is understood and applied in its true sense; and as such, it has been repeatedly recognised in the supreme court.........................Id. 4. The law of insurance, as a practical science, does not indulge in niceties; it seeks to administer justice according to the fair interpretation of the intention of the parties; and deems that to be a loss within the policy, which is a natural and necessary consequence of the peril insured against..............Id. ■6. If there be any commercial contract which, more than any other, requires the application of sound common sense and practical reasoning in the exposition of it, and in the uniformity of the application of rules to it, it is certainly a policy of insurance......Id. >6. It has been held by learned foreign writers on the law of insurance, that whenever the thing insured becomes by law directly chargeable with any expense, contribution or loss, in consequence of a particular peril; the law treats the peril, for all practical purposes, as the proximate cause of such expense, contribution or loss. This they hold, upon the general principles of law, applicable to the contract of insurance; in the opinion of the supreme court, this is the just sense and true interpretation of the contract........Id. 7. In all foreign voyages, the underwriters, necessarily, have it in contemplation that the vessel insured must, or at least may be, subjected to the operation of the laws of the foreign ports which are visited ; those very laws may, in some cases, impose burdens, and in some cases, give benefits, different from our laws ; and yet there are cases under policies of insurance, where it is admitted, the foreign law will govern the rights of the .parties, and not the domestic law; such is the known Case of general average, settled an a foreign port according to the local law, •although it may differ from our own law. Id. JAIL LIMITS. See Construction of United States Statutes, 1-3. JUDGMENT. 1. Where a deed of trust was executed to secure the payment of certain notes, and a judgment obtained on the notes, the judgment does not operate as an extinguishment of the right of the holders of the note to call for the execution of the trust; although the act of limitations might apply to the judgment. Bank of the Metropolis v. Gutt-schlick............................ *19 See Practice. JURISDICTION. 1. The artificial being, a corporation aggregate, is not, as such, a citizen of the United States, yet the courts of the United States will look beyond the mere corporate character, to the individuals of whom it is composed; and if they were citizens from a different state than the party sued, they are competent to sue in the courts of the United States ; but all the corporators must be citizens of a different state from the party sued. The same principle applies to the individuals composing a corporation aggregate, when standing in the attitude of defendants, which does when they are in that of plaintiffs. Commercial and Railroad Bank v. Slocomb.,............*60 2. The act of congress, passed February 28th, 1839, entitled “ an act in amendment of the acts representing the judicial system of the United States,” did not contemplate a change in the jurisdiction of the courts of the United States, as regards the character of the parties, as prescribed by the judiciary act of 1789, as that act has been expounded by the supreme court of the United States : which is, that each of the plaintiffs must be capable of suing, and each of the defendants capable of being sued.................Id. 3. The 11th section of the act to establish the judicial coifrts of the United States, carries out the constitutional right of a citizen of one state to sue a citizen of another state in the circuit courts of the United States; and gives to the circuit courts “ original cognisance, concurrent with the courts of the several states, of all suits of a civil nature, at common law and in equity.” It was certainly intended to give to suitors, having a right to sue in the circuit court, remedies co-extensive with that right; these remedies would not be so, if any proceedings under an act of state legislation, to which the plaintiff was not a party, exempting a person of such state from suit, could be pleaded to abate a suit in the circuit court. Suydam n. Broadnax............................. *67 4. An action was brought by foreign attach- 14 Pet.—36 561 615 INDEX. meat, in the court of common pleas of Warren county, Pennsylvania, in the name of a citizen of Pennsylvania, for the use of the Lumberman’s Bank at Warren, Pennsylvania, against a citizen of New York ; the suit was on. a note given by the defendant to the plaintiff, to be paid “ in the office-notes of the Lumberman’s Bank at Warren;” some of the stockholders of the Lumberman’s Bank at Warren were citizens of the state of New York. The defendant appeared to the action, by counsel, and having given bond with surety to the court of common pleas, removed the cause to the circuit court of the United States for the western district of Pennsylvania ; a motion was made in the circuit court to remand the cause to the court of common pleas of Warren county, the circuit court having no jurisdiction of the cause, on the ground, that the real party in the suit was the Lumberman’s Bank at Warren, an aggregate corporation, some of the stockholders of the bank being citizens of the state of New York. It was held, that the circuit court had jurisdiction of the case. Irvine n. Lowry.................... *293 5. The decisions of the supreme court have been uniform, and as declared at the present term . in the case of the Commercial and Railroad Bank v. Slocomb, that the courts of the United States cannot exercise jurisdiction, when some of the stockholders in a corporation established in one state are citizens of another state, of which the party sued by the corporation is a citizen......Id. 6. Action of ejectment in the state court of Alabama, for a lot of ground in the city of Mobile ; the plaintiff claimed the title to the lot, under an act of congress, and the decision of the state court was against the right and title so set up and claimed ; a writ of error was prosecuted to the supreme court of Alabama. It was held, that this case was embraced by the 25th section of the judiciary act of 1789, which gives this court jurisdiction to revise the judgment of the state court in such cases. Pollard's Heirs n. Kibbe *353 *1 . In the state of Vermont, George Holmes was confined under a warrant, issued by the governor of that state, directing the sheriff of the county of Washington to “convey and deliver him to William Brown, the agent of Canada, or to such person, or persons as, by the laws of said province, may be authorized to receive the same, at some convenient place, on the confines of this state, and of the said province of Lower Canada; to the end that the said George Holmes may be thence conveyed to the district of Quebec, and be there dealt with as to law and justice appertains.” The warrant stated, that George Holmes was in the custodyof the sheriff, by reason of a charge of felony, sustained by indictment found by the grand jurors of the district of Quebec, in the province of Lower Canada; and that the said George Holmes, on the 31st day of January 1838, at the parish of St. Louis of Kamouraska, in the said district, did feloniously kill and murder one Louis Paschal Achille Tache; “ 4id whereas, the said George Holmes not being a citizen of the state of Vermont, but a citizen of the said province of Lower Canada, and the offence whereof he stands charged as aforesaid, having been committed within the jurisdiction of the said province, it is fit and expedient, that he, the said George, be made amenable to the laws of the said province, for the offence aforesaid.” A writ of habeas corpus was, on the petition of George Holmes, issued by the supreme court of Vermont; and on the return thereof by the sheriff, stating the warrant of the governor to be the cause of his detention, he was remanded by the court; Holmes prosecuted a writ of error to the supreme court of the United States. The writ of error was dismissed, the court being equally divided on the question, whether the supreme court had jurisdiction of this case. Holmes v. Jenni-son.............................. *540 LANDLORD AND TENANT. 1. It is a general rule, that a tenant shall not dispute his landlord’s title ; but this rule is subject to certain exceptions; if a tenant disclaims the tenure, and claims the fee in his own right, of which the landlord has notice, the relation of landlord and tenant is put an end to, and the tenant becomes a trespasser ; and he is liable to be turned out of possession, though the period of his lease is not expired. Walden v. Bodley... .*156 2. The same relation as that of landlord and tenant subsists between a trustee and a cestui que trust, as it regards the title... .Id LAND TITLES. See Construction of United States’ Statutes, 4-7 : North Carolina Land Titles. LEAD MINES. See Public Lands. LEASE. 1. The legal understanding of a lease for years, is a contract for the possession and profits of lands for a determinate period, with the recompense of rent; it is not necessary that 562 INDEX. 615» the rent should b*e in money ; if reserved in kind, it is rent, in contemplation of law. United States v. Gratiot........... *526 LIMITATION OF ACTIONS. 1. An act was instituted by the Bank of Alexandria, in the county of Alexandria, against the defendants, residents in the county of Washington, in the same district, for money loaned; the suit was brought in the county of Washington. The defendants pleaded the statute of limitations of Maryland, which prevails in that part of the district of Columbia, and which limits such actions to three years, from the date of the contract; the plaintiff replied, that he was “ beyond seas claiming the benefit of the exception in the statute in favor of persons beyond seas.” Bank of Alexandria v. Dyer. .*141 2. The words “ beyond seas,” in the statute of limitations of Maryland, are manifestly borrowed from the English statute of limitations of James I.,'c. 21 ; and it has always been held, that they ought not to be interpreted according to their literal meaning; but ought to be construed as equivalent to the words, “ without the jurisdiction of the state.” According to this interpretation, a person residing in another state of the Union was “ beyond seas,” within the meaning of the act of assembly; and therefore, excepted from its operation, until he should come , within the limits of Maryland. This statute is in force in Washington county, in the district of Columbia; and this court will give it the same construction it has received in the courts of Maryland............ Id. 3. The counties of Washington and Alexandria, together, constitute the territory of Columbia, and are united under one territorial government ; they have been formed by the acts of congress into one separate political community; the counties which constitute it resemble different counties in the same state; and do not stand towards one another in the relation of distinct and separate governments. Residents of the county of Alexandria were not “ beyond seas,” in respect to the county of Washington...........Id. LOCAL LAW. 1. A paper was executed by R. R. K., of the city of New Orleans, stating that the grantor, for and in consideration of, a certain lot or parcel of land (describing it), conveyed and transferred to J. B. and S. B., all his right, title and interest in a certain tract or parcel of land (describing it), hereby warranting and defending unto the said J. B. and S. B., all his right and title in the same, and unto all persons claiming under them. The paper called under the laws of Louisiana, “ an act of sale,” was signed by R. R. K., J. B., S. BL and a notary of New Orleans ; and was deposited in the office of the notary. This was. not “ an exchange,” according to the laws o£ Louisiana ; and J. B. and S. B. did not, by accepting the transfer of the property made-by the same, and signing the paper, incur the two obligations imposed on all vendors, by the civil code—that of delivering, and that of warranting, the lot of ground sold to» R. R. K.; and did not thereby become liable? for the value of the property stated in the-said “ act of sale ” to have been given far the property conveyed thereby. Preston v„ Keene............................. .*!&& 2. Exchange, according to the civil code of' Louisiana, imports a reciprocal contract -which, by art. 1758 of that code, is declared to be a contract where the parties expressly enter into mutual agreements...............IdL 3. An exchange is an executed contract; it operates, per se, as a reciprocal conveyance-of the thing given, and of the thing received-The thing given or taken in exchange must be specific, and so distinguishable from all things of the like kind as to be clearly known, and identified. Under the civil code of Louisiana, the exchanger who is evicted, has at choice either to sue for damages, or for th© thing he gave in exchange ; but he must first be evicted, before his cause of action can accrue......... ..................... .Ip 4. Construction of the act of the legislature of Maryland, passed December session 1825* entitled “ an act relating to illegitimatechildren,” which provides, that “ the illegitimate child or children of any female, and the issue of any such child or children,” are-declared capable in law “ to take and inherit both real and personal estate from their-mother and from each other, and from the-descendants of each other, as the case may be, in like manner as if born in lawful wedlock.” Brewer v. Blougher................*178: 5. J. S., who had several children, who were? the children of an incestuous connection* conveyed a tract of land in the state of Maryland to one of those children; the grantee-died intestate and without issue, seised in» fee of the land; two brothers and one sister of this incestuous intercourse survived him t Held, that under the act of Maryland, “ relating to illegitimate children,” they inherited the estate of their deceased brother. ... Id. 6. It is undoubtedly the duty of the court to> ascertain the meaning of the legislature from, the words used in the statute, and the subject-matter to which it relates; and to 563 616 INDEX. restrain its operation within narrower limits than its words import, if the court are satisfied that the literal meaning of its language would extend to eases which the legislature never designed to include in it. According to the principles of the common law, an illegitimate child is filius nullius, and can have no father known to the law; and when the legislature speaks, in general terms, of children of that description, without making any exceptions, the court is bound to suppose they design to include the whole class.... Id. LOUISIANA. See Construction of United States Statutes, 4-7. MANDAMUS. 1. On the 3d of March 1837, congress passed an act giving to the widow of any officer who had died in the naval service of the United States, authority to receive, out of the navy pension fund, half the monthly pay to which the deceased officer would have been entitled, under the acts regulating the pay in the navy, in force on the 1st day of January 1835. On the same day, a resolution was adopted by congress, giving to Mrs. Decatur, widow of Captain Stephen Decatur, a pension for five years, out of the navy pension fund, and 1 in conformity with the act of 30th June 1834, and the arrearages of the half-pay of a post-captain, from the death of Commodore Decatur to the 30th June 1834; the arrearages to be vested in trust for her by the secretary of the treasury. The pension and arrearages, under the act of 3d March 1837, were paid to Mrs. Decatur, on her application to Mr. Dickerson, the secretary of the navy, under a protest by her, that by receiving the same, she did not prejudice her claim under the resolution of the same date; she applied to the secretary of the navy for the pension and arrears, under the resolution, which were refused by him; afterwards, she applied to Mr. Paulding, who succeeded Mr. Dickerson as secretary of the navy, for the pension and arrears, which were refused by him. The circuit court of the county of Washington, in the district of Columbia, ■ refused to grant a mandamus to the secretary of the navy, commanding him to pay the arrears, and to allow the pension under the resolution of March 3d 1837: Held, that the judgment of the circuit court was correct. Decatur v. Paulding...........*497 2. In the case of Kendall v. United States, 12 Pet. 544, it was decided by the supreme court, that the circuit court for Washington 564 county, in the district of Columbia, had the power to issue a mandamus to an officer of the federal government, commanding him to do a ministerial act............ Id. See Heads of Departments. MANDATE. 1. The mandate of the supreme court to the circuit court must be its guide in executing the judgment or decree on which it issued ; the mandate is the judgment of the supreme court, transmitted to the circuit court ; and where the direction contained in it is precise and unambiguous, it is the duty of the circuit court to carry it into execution, and not to look elsewhere for authority to change its meaning. But when the circuit court are referred to testimony to ascertain the amount to be decreed, and are authorized to take more evidence on the point, it may some- ~ times happen, that there will be some uncertainty and ambiguity in the mandate ; and in such a case, the court below have, unquestionably, the right to resort to the opinion of the supreme court, delivered at the time of the decree, in order to assist them -in expounding it. West v. Brashear... .*51 MARSHALS’ AND SHERIFFS’ SALES. 1. A sale of land by the sheriff, under the laws of Maryland, seized under a fieri facias, -transfers the legal estate to the vendee, by operation of law, and does not require a sheriff’s deed to give it validity; but as sheriffs’ sales of lands are within the statute of frauds, some memorandum in writing of . the sales is required to be made. It is immaterial, when the return to the execution is made, provided it is before the recovery in an ejectment for the land sold, as the sale must be proved by written evidence; the sale passes the title, and the vendee takes it from the day of the sale; the evidence may, therefore, be procured, before or at the trial. Remington v. Linthicum........... .*84 2. If property is seized under a fieri facias, before the return-day of the writ, the marshal may proceed to sell, at any time afterwards, without any new process from the court ; as a special return on the fieri facias is one of the necessary modes of proving the sale, the marshal must be authorized to make the indorsement after the regular return-term, in case where the sale was made afterwards .... .......................... I&- 3. The return to a fieri facias, if written on the writ, should be so full as to contain the name of the purchaser, and the price paid INDEX. for the property, or it would not be a sufficient memorandum of the sale, within the statute of frauds ; nor can an imperfect return of a sale be made complete, by a reference to the ' private memorandum-book kept by the marshal of his sales ; as it was not a sufficient ■ memorandum of a sale, within the statute. Id. MASSACHUSETTS. See Boundaries of States : Chancery and Chancery Practice, 5-11 : Supreme Court. NAMES. 1 The law knows of but one Christian name, and the omission or insertion of the middle name, or of the initial letter of that name, is immaterial ; and it is competent for the party to show, that he is known as well without as with the middle name. Games v. Dunn............................*322 NORTH CAROLINA LAND TITLES. 1. Ejectment for 49,000 acres of land in the state of North Carolina, claimed by the plaintiffs, under a grant from the state, dated 20th July 1796, to William Cathcart, founded on entries made in the office of the entry-taker, in the county of Buncombe, in the state of North Carolina, after the 3d of February 1795, within the limits of the country. The land lay wholly within the limits of the territory specially described and set forth in thé fifth section of the act of 1783, entitled an act for opening the landoffice of the state of North Carolina. The claim of the plaintiffs in the ejectment was resisted, on the ground, that the grant under ■ which the plaintiffs claimed, was, at the’ time of its emanation, wholly within the territory allotted to the Cherokee Indians, and was null and void ; as such entries and ‘ grants were prohibited by the sixth section of the act. It was held, that the title under which the plaintiffs claimed, was invalid. Latimer v. Poteet..................*4 2. The Indian title being a right of occupancy, the state of North Carolina had the power to grant the fee in those lands, subject to this right...............................Id. PAROL EVIDENCE. 1. It is equally well settled in courts of equity, as in courts of law, as a rule of evidence, that parol evidence is inadmissible to ! contradict or substantially vary the legal import of a written agreement ; and this is founded on the soundest principles of reason and policy, as well as authority. Sprigg v. Danie of Mount Pleasant *201 See Evidence. PARTIES. See Corporations, 4 : Injunction: Specific Performance, 4. PATENTS. 1. On the 26th September 1835, a second patent was granted, the original patent, granted in 1831, having been surrendered and cancelled on account of a defective specification ; the second patent being for fourteen years from the date of the original patent; the second patent was in the precise form of the original, except the recital of the fact, that the former patent was cancelled, “ on account of a defective specification,” and the statement of the time the second patent was to begin to run. It was objected, that the second patent should not be admitted in evidence, on the trial of the case, because it did not contain any recitals that the pre-requisites of the act of congress of 1836, authorizing the renewal of patents, had been complied with: Held, that this objection could not, in point of law, be maintained. The patent was issued under the' great seal of the United States, was signed by the president, and countersigned by the secretary of state; it is a presumption of law, that all public officers, and especially such high functionaries, perform their proper official duties, until the contrary is proved. Where an act is to be done, or patent granted, upon evidence and proofs to be laid before a public officer, upon which he is to decide, the fact that he has done the act, in granting the patent, is primd facie evidence that the proofs have been regularly made, and were satisfactory. No other tribunal is at liberty to re-examine or controvert the sufficiency of such proofs, when the law has made the officer the proper judge of their sufficiency and competency. Philadelphia and Trenton Railroad Co. v. Stimpson *448 2. Patents for lands, equally with patents for inventions, have, in courts of justice, been deemed pnmd facie evidence that they have been regularly granted, whenever they have been produced under the great seal of the government,without any recitals or proofs that the pre-requisites of the acts under which they have been issued have been duly observed. In cases of patents, the United 565 617 ^18 INDEX. States have gone one step farther ; and as the patentee is required to make oath that lie is the true inventor, before he can obtain ¡a patent, the patent has been deemed primd Jade evidence that he has made the invention......?.........................Id. 3. To entitle a party to examine a witness, in a patent cause, the purpose of whose testimony is to disptove the right of the patentee to the invention, by showing its use by others, prior to the patent, the provisions of the patent act of 1836, relative to notice, must be strictly complied with.............Id. 4. The conversations and declarations of a patentee, merely affirming that, at some former period, he had invented a machine, may well be objected to; but his conversations and declarations, stating that he had made an invention, and describing its details, ■and explaining its operations, are properly «deemed an assertion of his right, at that time, as an inventor, to the extent of the facts and details which he then makes known, -although not of their existence at an anterior time. Such declarations, coupled with a description of the nature and objects of the invention, are to be deemed a part of the res gestce, and are legitimate evidence that the invention was then known and claimed ¡by him; and thus its origin may be fixed, -at least, as early as that period.....Id. PENAL STATUTES. -See Construction of Statutes : Slave Trade. PERJURY. 1. The defendant was indicted for perjury, in falsely taking and swearing “ the owners’ oath, in cases where goods have been actually purchasedas prescribed by the fourth «ection of the supplementary collection law, of the first of March 1823 ; the perjury was «charged to have been committed in April 3837, at the custom-house in New-York, on the importation of certain woollen goods in the ship Sheridan. The indictment charged the defendant with having intentionally suppressed the true cost of the goods, with intent to defraud the United States. 2. “Charging the perjury in swearing to the truth of the invoice produced by him at the time of the entry of the goods, the invoice being false, &c. It appeared by the evidence, 'that the goods mentioned in the entry had been bought by the defendant from John "Wood, his father, of Saddleworth, England ; no witness was produced by the United 'States, to prove that the value or cost of the .goods was greater than that for which they were entered at the custom-house in New York ; the evidence of this, offered by the prosecution was, the invoice-book of John Wood, and thirty-five original letters from the defendant to John Wood, between 1834 and 1837, showing a combination between John Wood and the defendant, to defraud the United States, by invoicing and entering goods at less than their actual cost; that this combination comprehended the goods imported in the Sheridan; and that the goods received by that ship had been entered by the defendant, he knowing that they had cost more than the prices at which he had entered them. This evidence was objected to on the part of the defendant, as not competent proof to convict the defendant of the crime of perjury; and that if an inference of guilt could be derived from such proof, it was an inference from circumstances, not sufficient, as the best legal testimony, to warrant a conviction: Held, that in order to a conviction, it was not necessary, on the part of the prosecution, to produce a living witness ; if the jury should believe, from the written testimony, that the defendant made a false and corrupt oath, when he entered the goods. United States v. Wood *430 2. The cases in which a living witness to the corpus delicti of the defendant, in a prosecution for perjury, may be dispensed with, are : All such where a person charged with a perjury by false swearing to a fact directly disproved by documentary or written testimony, springing from himself, with circumstances showing the corrupt intent: In cases where the perjury charged is contradicted by a public record, proved to have been well known to the defendant, when he tcok the oath, the oath only being proved to have been taken : In cases where the party is charged with taking an oath, contrary to what he must necessarily have known to be the truth; and the false swearing can be proved by his own letters, relating to the fact sworn to, or by other written testimony existing and being found in the possession of the defendant, and which has been treated by him as containing the evidence of the fact recited in it........................Id- 3. The letters of the defendant, showing his knowledge of the actual cost of the goods which had been falsely entered by him, are the best evidence which can be given; this evidence is good, under the general principle, that a man’s own acts, conduct and declarations, when voluntary, are always admissible in evidence against him. If the letters of the defendant showed that the invoice-book of the vendor of the goods, containing an invoice of the goods enumerated in the invoice 566 INDEX. 619 to which the defendant had sworn the owners’ oath, in which book the goods were priced higher in the sale of them to the defendant, recognised the book as containing the true invoice, his admission supersedes the necessity of other proof to establish the real price given by him for the goods; and the letters and invoice-book, in connection, preponderate against the oath taken by the defendant, making a living witness to the corpus delicti charged in the indictment, unnecessary............................Id. PLEAS AND PLEADING. 1. Action on an agreement in writing, by which Guttschiick had purchased a lot of ground in the city of Washington, from the Bank of the Metropolis, for wh.ch he had paid a part of the purchase-money, and given a note for the residue ; by the contract, the Bank of the Metropolis, through its president and •cashier, was pledged to convey the lot in fee-simple to Guttschiick, when the whole purchase-money was paid. The declaration in each count averred the payment of the note, and the failure of the bank to convey; to three special counts in the declaration, there was no conclusion ; to the fourth count, for money had and received, there was a general conclusion. It was held by the court, that whatever might have been the effect of the want of a conclusion to three counts, upon a special demurrer, the 32d section of the judiciary act of 1789 would cure the dei. ct, if admitted to be one. Bank of the Metropolis v. Guttschiick.......................*19 2. An allegation that a party made, accepted, indorsed or delivered a bill of exchange is sufficient, although the defendant did not do either of those acts himself« provided he authorized the doing of them..............Id. 3. An averment in a declaration set forth that the plaintiff had been turned out of possession of a lot of ground, but did not state that the eviction was by due course of law; the breach alleged in the count was, that the defendant had refused, on demand, to convey the lot. The court held the averment of eviction to be mere surplusage............ Id. a. The action was assumpsit against a bank on a contract, under the seals of the president and cashier: Held, that the action was well brought; it makes no difference, in an action of assumpsit against a corporation, whether the agent was appointed under the seal or not; or whether he puts his own seal to a contract which he makes in behalf of the corporation...............................Id. 5. An action was brought in the circuit court of Mississippi, against the Commercial and Railroad Bank of Vicksburg, Mississippi, by parties who were citizens of the state of Louisiana; the defendants pleaded in abatement, by attorney, that they were an aggregate corporation, and that two of the stockholders resided in the state of Mississippi. The affidavit to the plea was sworn to by the cashier of the bank, before the “ deputyclerk it was not entitled as of any term of the court; the plaintiffs demurred to the plea: Held, that the appearance of the defendants in the circuit court, by attorney, was proper ■ and that if any exceptions existed to this form of tbe plea, they should have urged to the receiving of it, when it was offered, and were not cause of demurrer: Held, that the circuit court of Mississippi had no jurisdiction of the case. Commercial and Railroad Bank v. Slocomb........*60 See Action, 2. POLICY OF INSURANCE. 1. If there be any commercial contract which, more than any other, requires the application of sound common sense, and practical reasoning, in the exposition of it, and in the uniformin' of the application of rules to it, it is certainly a policy of insurance. Peters v. Warrm Insurance Company...........*99 POTOMAC COMPANY. See Chesapeake and Ohio Canal Company. PRACTICE. 1. In a scire facias to revive a judgment in ejectment, where it is stated, that the term recovered is yet unexpired, this is sufficient; it is not required, that the term as laid in the declaration, and that facts showing its continuance, should be stated. Walden. v. Craig. .............................*147 2. When the court have given leave, on motion, to extend the term in a demise, and the amendment is specific, it is not necessary to interline it in the declaration; if leave to amend the declaration had been given generally, and the amendments had not been interlined, it would be different. ....... Id. 3. In Kentucky, there is no law which limits a revival of judgments ; and at law, lapse of time can only operate by way of evidence. From lapse of time, and favorable circumstances, the existence of a deed may be presumed, or that an obligation has been discharged ; but this presumption always arises under pleadings which would render the facts presumed proper evidence. A demurrer to a scire facias raises only questions of law <567 INDEX. on the facts stated in the writ of scire facias; no evidence is heard by the court on the demurrer; and consequently, there is no presumption against the judgment on which the writ issued, from lapse of time......Id. 4. The marshal, in his return to a scire facias to revive a judgment in ejectment, stated, that two of the defendants were dead. This return does not become matter of record, like the fact of service of the writ, stated in the return, and cannot be taken advantage of by demurrer; a plea in abatement is the proper method of taking advantage of the decease of those of the defendants who were dead ; on this plea, the plaintiff could have taken issue, and have had the facts ascertained by a jury..........................Id. 5. To a scire facias to revive a judgment in ejectment, it is not necessary to make the executors or administrators of deceased defendants parties; the subject-matter in dispute being land, over which they have no control. The law is well settled, that where a defendant in ejectment dies, the judgment must be. revived against bo.h his heirs and the terre-tenants....................... Id. 6. Service of process or notice is necessary to enable a court to exercise jurisdiction in a case ; and if jurisdiction be taken in a case in which there has been no process or notice, the proceeding is a nul.ity. But this is only where original jurisdiction is exercised ; and not a decision of a collateral question, in a case where the parties are before the court................................... Id. L After judgment, the parties are still in court, for all the purposes of giving effect to it; and in the action of ejectment, the court having power to extend the demise, af er judgment, the defendant may be considered in court, on a motion to amend, as well as on any other motion or order which may be necessary to carry into effect the judgment, In no correct sense, is th s power of amendment similar to the exercise of an original jurisdiction between parties on whom process has not been served..................... Id. PROCESS. 1. The statute of May 19th, 1828, entiled, “ an act further to regulate process in the courts of the United States,” which proposes only to regulate the mode of proceeding in civil suits, does not divest the public of any right, does not violate any principle of public policy, but on the contrary, makes provision in accordance with the policy which the government has indicated by many acts of previous legislation, to conform to state laws, in sdvins to Dersons imoiisoned under execution, the privilege of jail-limits, embracing executions at the suit of the United States. United States v. Knight..... .*302 See Practice, 1, 4-6. PROMISSORY NOTES. 1. An action was instituted in the circuit court of Mississippi, on a promissory note, dated at and payable in New York ; the declaration omitted to state the place at which the note1 was payable, and that a demand of payment had been made at that place. The court held, that, to maintain an action against the drawer of a promissory note or bill of exchange, payable at a particular place, it is not necessary to aver in the declaration, that the note, when due, was presented at the place for payment, and was not paid; but the place of payment is a material part of the description of the note, ' nd must be set out in the declaration. Covington v. Comstock............................. *43 2. A note to be paid *■ in the office notes of a bank,” is not negotiable by the usage or custom of merchants; not being a promissory note by the law-merchant, the statute of Anne, or the kindred act of assembly of Pennsylvania, it is not negotiable by indorsement ; and not being under seal, it is not assignable by the. act of aseembly of Pennsylvania on that subject, relating to bonds. No suit could be brought upon it, in the name of the indorser; the legal interest in the instrument continues in the person in whose favor it has been drawn, whatever equity another may have to claim the sum due on the same; and he only is the party to a suit at law on the instrument. Irvine n. Lowry..........................*293 3. Action on% promissory note for $2000, made for the purpose of being discounted at the branch bank, at Mobile, payable to the cashier of the bank or bearer, and upon which was written an order to credit the person to whom the note was sent, to be by him offered for discount to the bank, for the use of the makers, the order being signed by all the makers of the note. The bank, refused to discount the note, and it was marked with a pencil mark, in the manner in which notes are marked by the bank which are offered for discount. The agent of the makers, to whom the note was intrusted to be offered for discount, put it into circulation, after indorsing it; having disposed of it for $1200, for his own benefit, without the knowledge of the makers; and .communicated to the purchaser of the note, that it had been offered for discount and rejected — O* • - 568 INDEX. 621 by the bank ; the note was afterwards given to other persons in part payment of a previous debt, and credit for the amount was given in the account with their debtors. Tne form of the note was that required by the bank when notes are discounted, and had not been used before it had been so required by the bank. The circuit court instructed the jury, that the plaintiff was not entitled to recover from the makers of the note : Held, that the instruction was correct. Fowler v. Brantley...................*318 4, The known custom of the bank, and its ordinary modes of transacting business, including the prescribed forms of notes offered for discount, entered into the contract of those giving notes for the purpose of having them discounted at the bank ; and the parties to the note must be understood as having agreed to govern themselves by such customs and modes of doing business; and this, whether they had actual knowledge of them or not ; it was the especial duty of all those dealing with the note to ascertain them, if unknown. This is the established doctrine of the supreme court, as laid down in Renner v. Bank of Columbia, 9 Wheat. 581 ; in Mills v. Bank of the United States, 11 Ibid. 431; and in the Bank of Washington v. Triplett, 1 Pet. 32.....................Id. 5. A note over-due, or a bill dishonored, are circumstances of suspicion, to put those dealing for it afterwards on their guard; and in whose hands it is open to the same defences it was in the hands of the holder, when it fell due; after maturity, such paper cannot be negotiated....................Id. PUBLIC LANDS. 1. The United States instituted an action on a bond given by the defendants, conditioned that certain of the obligors, who had taken from the agent of the United States, under the authority of the president of the United States, a license for smelting lead-ore, bearing date September 1st, 1834, should fully execute and comply with the terms and conditions of a license for purchasing and smelting lead-ore, at the United States* lead-mines, on the upper Mississippi river, in the state of Illinois, for the period of one year. The defendants demurred to the declaration, and the question was presented to the circuit court of Illinois, whether the president of the United States had power, under tbe act of congress of 3d of March 1807, to make a contract for purchasing and smelting lead-ore, at the lead-mines of the United States, on the Upper Mississippi; this question was certified from the circuit to the supreme court of the United States : Held, that the president of the United States had power, under the act of congress of 3d of March 1807, to make the contract on which this suit was instituted. United States v. Gratiot. .*529 2. The power over the public lands is vested in congress by the constitution, without limitation, and has been considered the foundation on which the territorial governments rest. Id. 3. The words “ dispose of ” the public lands,, used in the constitution of the United States, cannot, under the decisions of the supreme court, receive any other construction than that congress has the power, in its discretion, to authorize the leasing of the lead-mines on the public lands, in the territories of the United States. There can be no apprehension of any encroachments upon state rights, by the creation of a numerous tenantry within the borders of the states, from the adoption of such measures.............. .Id. 4. The authority given to the president of the United States, to lease the lead-mines, is limited to a term not exceeding five years ; this limitation, however, is not to be construed as a prohibition to renew the leases, from time to time, if he thinks proper so to do. The authority is limited to a short period, so as not to interfere with the power of congress, to make other dispositions of the mines, should they think the same necessary...................................Id. 5. The legal understanding of a lease for years, is a contract for the possession and profits of land for a determinate period, with the recompense of rent ; it is not necessary that the rent should bë in money ; if reserved in kind, it is rent, in contemplation of law.. Id. 6. The law of 1807, authorizing the leasing of the lead-mines, was passed, before Illinois was organized as a state ; she cannot now complain of any disposition or regulation of the lead-mines, previously made by congress ; she surely cannot claim a right to the public lands, within her limits................Id, RHODE ISLAND. See Boundaries of States: Chancery and Chancery Practice, 5-11 : • Supreme Court. SALES OF REAL ESTATE. 1. The rule that the purchaser of property shall prepare and tender a deed of conveyance of the property to the vendor, to be executed by him, although prevailing in England, does not seem to have been adopted in some of the states of the United States ; in Ohio, the rule does not prevail. The local practice 569 622 INDEX. ought certainly to prevail, and to constitute the proper guide in the interpretation of the terms of a contract. Taylor v. Long-worth............................ *172 SALES FOR TAXES. I. The supreme court of Ohio has required a claimant under a tax-title to show, before his title can be available, a substantial compliance with the requisites of the law. Games n. Dunn............................*322 2. A deed of lands sold for taxes cannot be read in evidence, without proof that the requisites of the law which subjected the land to taxes had been complied with ; there can be no class of laws more strictly local in their character, and which more directly concern real property, than laws imposing taxes on lands, and subjecting the lands to sale for unpaid taxes; they not only constitute a rule of property, but theii construction by the courts of the state should be followed by the courts of the United States, with equal, if not with greater, strictness than any other class of laws.........Id. SCIRE FACIAS. See Practice. SECRETARY OF THE NAVY. See Heads of Departments. SLAVE-TRADE. 1. The schooner Butterfly, carrying the flag of the United States, and documented as a vessel of the United States, and having the usual equipments of vessels engaged in the slave-trade, sailed from Havana, towards the coast of Africa, on the 27th July 1829 ; she was captured by a British brig of war, and sent into Sierra Leone, on suspicion of being Spanish property. At the time of the capture, Isaac Morris was in command of the vessel, and was described in the ship’s papers, and described himsel f, as a citizen of the United States ; the vessel was sent by the British authorities at Sierra Leone to be dealt with by the authorities of the United States: Held, that to constitute the offence denounced in the second section of the act of 10th May 1800, it was not necessary that there should have been an actual transportation or carrying of slaves in the vessel of the United States, in which the party indicted served. 2. The voluntary service of an American citizen on board a vessel of the United States, in a voyage commenced with the intent that the vessel should be employed in the slave-trade, from one foreign place to another, is an offence against the second section of the law, although no slaves had been transported in such vessel, or received on board of her. 3. To constitute the offence under the third section of the act, it was not necessary that there should be an actual transportation of slaves in a foreign vessel on board of which the party indicted served. 4. The voluntary service of an American citizen on board a foreign vessel, in a voyage commenced with intent that the vessel should be employed and made use of in the transportation of slaves, from one foreign country * to another, is, in itself, and where no slaves have been transported in such vessel, or received on board of her, an offence under the third section of the act. United States v. Morris............................ *464 SPANISH LAND GRANTS. See Construction of United States Statutes, 4-7: Florida Land-Titles. SPECIFIC PERFORMANCE. 1. A decree for a specific performance of a contract was refused, because a definite and certain contract was not made, and because the party who claimed the performance had failed to make it definite and certain on his part, by neglecting to communicate, by return of mail conveying to him the proposition of the vendor, his acceptance of the terms offered. Carr v. Duval..............*77 2. If it be doubtful, whether an agreement has been concluded, or is a mere negotiation, chancery will not decree a specific performance.............................. Id. 3. Specific performance of a contract by T., for the sale by him of a lot of ground in the city of Cincinnati, was asked, by a bill filed in the circuit court for the district of Ohio, by L.; the complainant in the bill had purchased the lot, and had paid, according to the contract, the proportion of the purchasemoney payable to T.; by the contract, a deed, with’ a general warranty, was to have been given by the vendor, within three months, on which a mortgage for the balance of the purchase-money was to have been executed by the purchdfeer; this deed was never given nor offered. The purchaser went into possession of the lot, improved it by building valuable stores upon it, and sold a part of it; a subsequent agreement was made with the vendor, as to the rate of interest to be paid on the balance of the purchase-money ; the purchase was made in 1814, and the interest, as agreed upon, was 570 INDEX. 623 regularly paid until 1822, when it was with- , held. In 1822, the vendor instituted an j action of ejectment for the recovery of the property, and he obtained possession of the same in 1824; in 1819, the purchaser was informed that one Chambers and wife had a claim on the lot, which was deemed valid by counsel; and in 1823, a suit for the recovery of the lot was instituted by Chambers and wife against T. L. and others, which was depending until after 1829. In 1825, this bill was filed, claiming from T. a conveyance of the property, under the contract of 1814, on the payment of the balance of the purchasemoney and interest. The circuit court decreed a conveyance; and the decree was affirmed by the supreme court. Taylor v. Longworth..........................*173 4. After the filing of the original bill, amended bill and answers, the circuit court considered that C., who held a part of the lot purchased by L., should be made a party complainant; and he came in and submitted to such decree ae might be made between the original parties: Held, that this was regular.... Id. 6. There is no doubt, that time may be the essence of a contract for the sale of property ; it may be made so by the express stipulations of the parties, or it may arise by implication, from the very nature of the property, or the avowed objects of the seller or the purchaser. And even when time is not, thus, either expressly or impliedly, of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or has been inexcusably negligent in performing the contract on his part, or if there has, in the intermediate period, been a material change in circumstances, affecting the rights, interests or obligations of the parties, in all such cases, courts of equity will refuse to decree any specific performance, upon the plain ground, that it would be inequitable and unjust. But, except under circumstances of this sort, or of an analogous nature, time is not treated by courts of equity as of the essence of the contract; and relief will be given to the party who seeks it, if he has not been grossly negligent, and comes within a reasonable time, although he has not complied with the strict terms of the contract; but in all such cases, the court expects the party to make out a case free from all doubts, and to show that the relief which he asks is, under all the circumstances, equitable; and to account in a reasonable manner for his delay and apparent omission of duty.......................... Id. STATUTES OF LIMITATION. See Limitation of Actions. SUPREME COURT. 1 1. Under the 25th section of the judiciary act ' of 1789, three things are necessary to give the supreme court jurisdiction of a case brought up by writ of error or appeal: 1. The validity of a statute of the United States, or of an authority exercised under a state, must be drawn in question. 2. It must be drawn in question on the ground that it is repugnant to the constitution, treaties and laws of the United States. 3. The decision of the state court must be in favor of its validity. Commonwealth Bank of Kentucky v. Griffith............................*56 2. When the decision of a state court is against the validity of a state statute, as contrary to the constitution of the United States, a writ of error does not lie to the supreme court on such judgment........................ Id. 3. By a rule of the supreme court, the practice of the English courts of chancery is the practice of the courts of equity of the United States. Rhode Island v. Massachusetts *210 4. In a case in which two sovereign states of the United States are litigating a question of boundary between them, in the supreme court of the United States, the court have decided, i that the rules and practice should govern in j conducting a suit to a final issue.....Id. I 5. The judgment of the supreme court of the ; United States, in a case brought by writ of ■ error to a court of a state, must be confined > to the error alleged in the decision of the state court, upon the construction of the act of congress before the state court. Pollard's Heirs v. Kibbe........................*353 SURETY. 1. Extending the time of payment of a bond, or a mere delay in enforcing it, will not discharge a surety, unless some agreement has been made, injurious to the interest of the surety. Sprigg v. Bank of Mount Pleasant.............................. *201 2. It is a sound and well-settled principle of law, that sureties are not to be made liable beyond their contract; and any agreement with the creditor which varies essentially • the terms of the contract, without the assent of the surety, will discharge him from responsibility; but this principle cannot apply, where the surety has, by his own act, exchanged his character of surety for that of principal; and then applies to a court of equity to reinstate him to his character of surety, in violation of his own express contract................................ Id. TAXES. See Salks for Taxes. 571 624 INDEX. TREATIES. J. Construction of the treaties with the Cherokee Indians, relative to lands within the boundary; and the acts of the legislature of the state of North Carolina, relative to the occupation and entry of lands within the Indian boundary. Lattimer v. Poteet... .*4 2. It will not be denied, that the parties to a treaty are competent to determine any dispute respecting its limits ; in no mode can a controversy of this nature be so satisfactorily determined as by the contracting parties. If their language in the treaty be wholly indefinite, or the natural objects called for uncertain or contradictory, there is no power but that which formed the treaty which can remedy such defects.....................Id. 3. It is a sound principle of law, and applies to the treaty-making power of the government of the United States, whether exercised with a foreign nation or an Indian tribe, that all questions of boundary may be settled by the parties to the treaty ; and to the exercise of that high function of the government, within its constitutional powers, neither the rights of a state or an individual can be interposed..................................Id. See Construction of United States’ Statutes, 4-8: Florida Land-Claims. TREATY WITH FRANCE. 1. The powers and duties of the commissioners under the treaty of indemnity with France, were the same as those which were exercised under the treaty with Spain, by which Florida was ceded to the United States ; as decided in the cases of Comegys v. Vasse, 1 Pet. 212, and Sheppard v. Taylor, 5 Ibid. 710. There is a difference in the words used in the treaty and act of congress, when defining the powers of the board of commissioners; but they mean the same thing. The rules by which the board, acting under the French treaty, is directed to govern itself in deciding the cases that come before it, and the manner in which it is constituted and organized, show the purposes for which it was created. It was established for the purpose of deciding what claims were entitled to share in the indemnity provided by the treaty; and they, of course, awarded the amount to such person as appeared from the papers before them to be the rightful claimant. But there is nothing in the frame of the law establishing the board, nor in the manner of constituting and organizing it, which would lead to the inference that larger powers were intended to be given than those conferred on the commissioners under the Florida treaty. Freval n. Bache *95 TRUSTS. 1. In case of a deed of trust, executed to secure a debt, unless in case of some extrinsic matter of equity, a court of equity never interferes to delay or prevent a sale, according to the terms of the trust; and the only right of the grantor iu the deed, is the right to any surplus which may remain of the money for which the property sold. Bank of the Metropolis n. Guttschlick....... .*19 2. When a trust is created for the benefit of a third party, though without his knowledge at the time, he may affirm the trust, and enforce its execution................. Id. 3. Where a deed of trust is executed to secure the payment of certain notes, and a judgment obtained on the notes, the judgment does not operate as an extinguishment of the right of the holders of the note to call for the execution of the trust; although the act of limitations might apply to the judgment. .............................. .. Id. 4. The same relation as that of landlord and tenant subsists between a trustee and a cestui que trust, as it regards title to the estate. Walden v. Bodley........... ..........*15& WRIT OF ERROR. 1, It is the settled doctrine of the supreme court of the United States, that a writ of error does not lie from the circuit court, on the refusal of a motion to quash an execution; such refusal not being a final judgment, under the 22d section of the judiciary act of 1789. Evans v. Gee........................* 1 2. Under the 25th section of the judiciary act of 1789, three things are necessary to give the supreme court jurisdiction of a case brought, up by writ of error or appeal. 1. The validity of a statute of the United States, or of an authority exercised under a state, must be drawn in question. 2. It must be drawn in question on the ground that it is repugnant to the constitution, treaties or laws of the United States. 3. The decision of the state court must be in favor of its validity. Commonwealth Bank of Kentucky v. Griffith............................*56 3. When the decision of a state ccurt is against the validity of a state statute, as contrary to the constitution of the United States, a writ of error does not lie to the supreme court upon such a judgment.............Id, 572