(fnrnpU ilaui irijnnl ^library Cornell University Library KF8719.A72 V.1 A treatise upon the United States courts 3 1924 020 613 547 The original of tiiis bool< is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020613547 TREATISE THE UNITED STATES COURTS, AKD THEIR PRACTICE: ^ v^ EXPLAmiNG THE ENACTMENTS BY WHICH THEY ARE CONTROLLED ; THEIR ORGANIZATION AND POWERS; THEIR PECULIAR JURISDICTION; AND THE MODES OF PLEADING AND PROCEDURE IN THEM, WITH NUMEROUS PRACTICAL FORMS, BY BENJAMIN VAUGHAN ABBOTT THIRD EDITION. Rewritten and Corrected conformably \a the Rerised Statutes and Recent Decisions. VOL. I. ENACTMENTS^ ORGANIZATION; JDRISDICTION. NEW-YORK : WARD & PBLOUBET, SUCCESSORS TO DIOSST & COMPANY. 1877. Entered, according to act of Congress, inthe year 1876, by BENJAMIN VAUGHAN ABBOTT, In the Office of the Librarian of Congress, at Washington. PREFACE. The general object of this work is to give to the practitioner already conversant with jurisprudence in its general outline, as administered in the courts of the States^ a parallel acquaintance with all that is peculiar to the judicial organizati^ and the administration of justice Ir the Na- tional courts. It is assumed that the reader has already gained an acquaintance with whatever is common to courts of justice generally, and with the great body of common law and equity, which is administered by all the leading American courts upon principles fundamentally similar. These volumes seek merely to superadd a knowledge of those details which are necessary to qualify the practitioner for the special duty of practice in the courts of the Union. The work, as originally published, was received with a favor very gratifying to the author and publishers. Since it appeared, the entire body of the statute law of the* United States has received a new form and arrangement by the enactment of the United States Revised Statutes. The author was one of the commissioners by whom the Revision was draughted for the consideration of Congress. While the change affects only very slightly the substance and operation of the laws, it renders all references to them, by former arrangements, inap- propriate; and throws doubt over all quotations of their language. In this edition the work has been thoroughly rewritten, and stere- otyped anew. The provisions of the Revised Statutes as in force at the adjournment of the first session of the Forty-Fourth Congress (in 1876) are substituted for the collection of enactments gathered from the iii iv PREFACE. Statutes at Large, with which the worlc originally opened. The Rules of Court are given, with the changes introduced in tiiem, down to this date. And in the more original portion of the work, the Books describing Thk Judicial Organization : The Subjects of Jurisdiction : Procedure in Original Jurisdiction : and Procedure in Appellate Jurisdiction : the references to and quotations from the statute law, have been made to conform to the Revised Statutes. Moreover, numerous volumes of Reports issued since the work first appeared, have been carefully examined, and the decisions have been incorporated in the text or notes. These improvements, will, it is hoped, recommend, the book to the continued confidence of practitioners in the national tribunals. BENJ. VAUGHAN ABBOTT. New York, Oct. 1876. CONTENTS. VOLUME I. THE ENACTMENTS RELATIVE TO THE FEDERAL COURTS. CHAPTER I. PAGE CONSTITUTIONAI, PkOTISIONS i CHAPTER n. Statutes of Peactical Utilitt v Revised Statutes, Title I. General Provisions v Title XTTT. The Jadiciary .".' vi Subsequent acts affecting the Judiciary viii, xxxii, xxxiii, xxxvii, lix, Ixxxii Title LIV. Prize cv Title LXI. Bankruptcy cv Amendatory Bankrupt law of 1874 cxlvi V vi CONTENTS. CHAPTER m. Bulbs of Coitrt cliv Bules of the Supreme Court cliii Equity Rules clxii Admiralty Rules clxxx General orders in Bankruptcy cxc BOOK I. THE JUDICIAL ORGANIZATION. CHAPTER I. PAGE LcrTBosTTCTOB'r ^... 1 CHAPTER n. The Judicial Po'vraB 16 CHAPTER m. Gemeral Plan op the Coitbts 91 CHAPTER IV. The Distbict Coubts 131 CHAPTER V. The Ciecuit Coxtbts 140 CHAPTER VI. The Supbbme Coubt 147 CONTENTS. vii BOOK It SUBJECTS OF JURISDICTION. CHAPTEE I. pAoa AdmibaiiTT , 181 CHAPTER n, Bankbuptct 194 CHAPTER HI, CoLLiBioir .-. 206 CHAPTER IV. COFTRiaHT 311 CHAPTER V. Cbimbs 238 CHAPTER VI. EQirrre 348 CHAPTER Vn. Extradition 354 CHAPTER VOL Habeas Cobptis • 368 CHAPTER K. Patents 374 CHAPTER X. Pbize 3^3 viii CONTENTS. CHAPTER XI. Eeventte 343 CHAPTER Xn. Salvage 360 CHAPTER Xni. Seamen 385 CHAPTER XIV. SEIZtlEES 408 CHAPTER XV. Shipping , 414 THE UNITED STATES COURTS. THE EISTAOTMEIN'TS EBLATIVE TO THE FEDERAL COURTS. OOHSTITUTIOISIAL PEOVISIOI^S. Impeachment. AH. I., § ii., 5. The House of Representatives shall choose their speaker and other ofl5.oers ; and shall have the sole power of impeach- ment. Art. I., § irt., 6. The Senate shall have the sole power to try all impeach- ments. When •sitting for that purpose, they shall be on oath or affirmation. When the president of the United States is tried, the chief justice shall preside; and no person shall be convicted without the concurrence of two-thirds of the members present. Art. I., § ni., 7. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit, under the United States ; but the party con- victed shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law. Privilegre from arrest. Art. I., § vi., 1. [Provides that members of Con- gress "shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to, and returning from, the same ; and for any speech or debate in either House,. they shall not be questioned in any other place."] Power of Congress. Art. I., § vin. Congress shall have power, . . . 4. To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States : . . . Vol. I.— a ii THE ENACTMENTS. 8. To promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries : 9. To constitute tribunals inferior to the Supreme Court : 17. To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise lite authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erec- tion of forts, magazines, arsenals, dock-yards, and other needful buildings. Habeas corpus. Art. I., § ix., 3. The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. Keprieves aud pardons. Art. II., § n., 1. [Authorizes the president " to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."] Appointment of judges. Art. II., § ir., 3. [Vests in him the appointment of judges of the Supreme Court, and other officers ; but authorizes Congress to vest appointment of inferior officers in him, or in the courts of law, or in heads of departments.] Impeachment. Art. 11., § it. The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. Tribunals of the United States. Art. III., § i. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior; and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. The judicial power. Art. III., § ii., 1. The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their author- ity ; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects.' 2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be party, the Supreme Court shall have origi- nal jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make. 3. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been ' Restricted in regard to suits against a State, by Eleventh Amendment, infra, p. iv. CONSTITUTIONAL PROVISIONS. iii committed ; but when not committed -within any State, the trial shall be at such place or places as the Congress may by law have directed. Treason. Art. III., § m., 1. Treason against the United States shall con- sist only in levying war slgainst them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. 3. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted. Evidence. AH. IV., § i. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. Fugitives fi'om justice or service. Art. TV., § ii., 3. A person charged in any State with treason, felony, or other crime, who shall flee from justice, and Tje 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 having jurisdiction of the crime. 3. No person held to service or labor in one State, under the laws thereof, •escaping into another, shall, in consequence of any law or regulation therein, be •discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. Territorial courts. Art. IV., § in., 3. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitu- tion shall be so construed as to prejudice any claims of the United States, or of any particular State. Supremacy of the constitution, &c. Art. VI., 3. This constitution, and the laws of the United States which shall be made in pursuance thereof, and all ■treaties made, or which shall be made, under the authority of the United States, flhall be the supreme law of the land ; and the judges, in every State, shall be bound thereby, anything in the constitution or laws of any State to the contrary notwi thstanding. Oath of office. Art. VI., 3. [Requires oath of office from judicial officers.] Search warrants. 4«A Amendt. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. * Personal rights of defendants. 5th Amendt. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war or public danger ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against "himself; nor be deprived of life, liberty, or property, without due process of law ; nor shall private property be taken for public use without just compensa- tion. iv THE ENACTMENTS. 6«ft AmenAt. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where- in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusa- tion ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of coun- sel for his defense. Trial by jury. ItTi Amendt. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved ; and no fact tried by a jury shall be otherwise le-examined in any court of the United States than according to the rules of the common law. Bail and punishment. 8th Amendt. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Suits agraiiist States. 11th Amendt. The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. Civil rights, lith Amendt. 1. All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of Ufe, liberty, or prop- erty, without due process of law, nor deny to any person within its jurisdic- tion the equal protection of the laws. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. STATUTES OF PEAOTIOAL UTILITT. SELECTIONS FEOM THE REVISED STATUTES AND LATER ACTS. * Foett-Thihd CoiraKESS, Session I. [* JR. 8., p. 1.] An Act to revise and consolidate the Statutes of the Vhited States in force on the first day of December, Anno Domini one thoutand eight hundred and seventy- three. TITLE L Gbkbkal Pkovisions. CHAPTER ONE. Be it enacted hy the Senate and House of Representatives of the United States cf America in Congress assembled, In determining the meaning of the revised statutes, or of any act or resolution of Congress passed subsequent to February twenty-fifth, eighteen hundred and seventy-one, words importing the singular jiumber may extend and be applied to several persons or things; words import- ing the plural number may include the singular ; vpords importing the masculine gender may be applied to females ; the words "insane person" and "lunatic" shall include every idiot, non compos, lunatic, and insane person ; the word "person" may extend and be applied to partnerships and corpora- tions, and the reference to any officer shall include any person authorized by law to perform the duties of such office, unless the context shows that such words -were intended to be used in a more limited sense ; and a requirement of an " oath " shall be deemed complied with by making affirmation in judicial form. County. Sbc. 3. The word "county" includes a parish, or any other ■equivalent subdivision of a State or Territory of the United States. Vessel. Sec. 3. The word "vessel " includes every description of water- craft or other artificial contrivance used, or capable of being used, as a means ■oi transportation on water. * Vehicle. Sec. 4. The word "vehicle " includes every des- [* B. S., p. 2.] VI -THE ENACTMENTS. cription of carriage or other artificial contrivance used, or capable of being used^ as a means of transportation on land. Company, association. Sec. 5. The word "company "or "association," when used in reference to a corporation, shall be deemed to embrace the worda "successors and assigns of such company or association," in like manner as if these last-named woids, or words of similar import, were expressed. Seal. Sec. 6. In all cases where a seal is necessary by law to any commis- sion, process, or other instrument provided for by the laws of Congress, it shall be lawful to aflBx the proper seal by making an impression therewith directly on the paper to which such seal is necessary ; which shall be as valid as if made on wax or other adhesive substance. CHAPTEE TWO. FORM OF STATUTES AND EFFECT OF EBPEALS. Sec. 7-11. [Relate to matters of form and title in acts of Congress.] Repeal not to revlTe former act. Sec. 13. Whenever an act is repealed,, which repealed a former act, such former act shall not thereby be revived, unless it shall be expressly so provided. Repeals not to affect liabilities, unless, &c. Sec. 13. The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforce- ment of such penalty, forfeiture, or liability. [* R. S., p. 88.] * TITLE XIII. The Judiciary. CHAPTER ONE. JUDICIAL DISTRICTS. United States divided into judicial districts. Sec. 530. The United States shall be divided into judicial districts as follows : States constitnting one district. Sec. 531. The States of California, Con- necticut, Delaware, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Mary- laud, Massachusetts, Minnesota, Nebraska, Nevada, New Hampshire, New .Jersey, Oregon, Rhode Island, Vermont, and West Virginia, each, constitute one judicial district. Alabama. Sec 533. The State of Alabama is divided into three districts, which shall be called the southern, middle, and northern districts of Alabama. [Their boundaries given.] Arkansas. Sec. 533. The State of Arkansas is divided into two districts, which shall be called the eastern and western districts of Arkansas. [Their boundaries given.] [* M. 3., p. 89.J * Florida. Sec. 534. The State of Flotida is divided into two districts, which shall be called the northern and southern districts of Florida. [Their boundaries given.] STATUTES OF PRACTICAL UTILITY. vii Georgia. Sue. 535. The State of Georgia is divided into two districts, ■which shall be called the northern and southern districts of Georgia. [Their boundaries given.] Illinois. Sec. 536. The State of Illinois is divided into two districts, which shall be called the northern and southern districts of Illinois. [Their boundaries given.] Iowa. Sec. 537. The State of Iowa constitutes one district, which shall be called the district of Iowa. For the purpose of trying all issues of fact, triable by jury, in the district court, said district is divided into four divisions, which shall be called the northern, southern, western, and central divisions of the district of Iowa. [Their boundaries given.] Micliig'an. Sec. 588. The State of Michigan is divided into two districts, which shall be called the eastern and western districts of Michigan. [Their boundaries given.] * Mississippi. Sec. 539. The State of Mississippi is divided [* iJ. &, p. 90.] into two districts, which shall be called the northern and south- ern districts of Mississippi. [Their boundaries given.] Missouri. Sec. 540. The State of Missouri is divided into two districts, which shall be called the eastern and western districts of Missouri. [Their boundaries given.] New York. Sec. 541. The State of New York is divided into three dis- tricts, which shall be called the northern, eastern, and southern districts of New York. [Their boundaries given.] Jurisdiction over waters near city of New York. Sec. 542. The district courts of the southern and eastern districts of New York shall have concurrent jurisdiction over the waters within the counties of New York, Kings, Queens, and Suffolk, and over all seizures made and all matters done in such waters; and all processes or orders issued out of either of said courts, or by any judge thereof, shall run and be executed in any part of the said waters. North Carolina. Sec. 548. The State of North Carolina is divided into two districts, which shall be called the eastern and western districts of North Caro- lina. [Their boundaries given.] Ohio. Sec. 544. The State of Ohio is divided into two districts, which shall be called the northern and southern districts of Ohio. [Their boundaries given.] Pennsylvania. Sec. 545. The State of Pennsylvania is divided into two districts, which shall be called the eastern and western districts of Pennsyl- vania. [Their boundaries given.] * South Carolina. Sec. 546. The State of South Carolina [* B. S., p. 91.] is divided into two districts, which shall be called the eastern and western districts of the district of South Carolina. [Their boundaries given.] Tennessee. Sec. 547. The state of Tennessee is divided into three districts, which shall be called the eastern, western, and middle districts of Tennessee. [Their boundaries given.] Texas. Sec. 548. The State of Texas is divided into two districts, which shall be called the eastern and western districts of Texas. [Their boundaries given.] Virginia. Sec. 549. The State of Virginia is divided into two districts. viii THE ENACTMENTS. which shall be called the eastern and western districts of Virginia. [Their boundaries given.] Wisconsin. Sec. 550. The State of Wisconsin is divided into two districts, which shall be called the eastern and western districts of Wisconsin. [Their boundaries given.] ACT OF JUNE 26, 1876. FOKTT-rOUBTH CONGKBSS, SESSION I. 19 8tat at L., 61. An Act to further the administration of justice in the State of Oolorado. Be it enacted ly the Senate and House of Bepresentatii>es of the United States of America in Congress assembled, That when the State of Colorado shall be admit- ted into the Union, according to the provisions of the act entitled "An Act to enable the people of Colorado to form a constitution and State government, and for the admission of said State into the Union on an equal footing with the origi- nal States,'' approved March third, eighteen hundred and seventy-flve, the laws of the United States not locally inapplicable shall have the same force andefifect within the said State as elsewhere within the United States ; and said State shall constitute one judicial district, to be called the district of Colorado; and for said district a district judge and a marshal and a district attorney of the United States shall be appointed by the President, by and with the advice and consent of the Senate, with the same rights, powers, and duties provided by law for similar officers in the other States, except as herein otherwise provided ; and said district of Colorado shall be attached to, and constitute a part of, the eighth judicial circuit; and a term of the circuit court and district court for said district shall be held at Denver in said State on the first Tuesday of July and the first Tuesday of Becember in each year. And one grand jury and one petit jury only shall be summoned and serve in both of said courts. Sec. 3. [Declares the powers and duties of the circuit and district courts and judges, to be the same as those of other circuit and district courts and judges of the United States.] Sec. 3. [Fixes the compensation of the district judge at $3000 a year.] Sec. 4. [Declares the powers and duties and fees of the marshal, district attorney and clerls, for Colorado, to be the same as those of similar officers elsewhere, excepting, &c.] Sec. 4, 5. [Provide for prosecution and determination of pending appeals from the supreme court of the Territory; and for prosecuting appeals or writs of error from existing judgments or decrees of that court.] Sec. 7. [Provides for performance of the duties of district judge, until one shall have qualified.] Sec. 8. [Gives the circuit and district courts of Colorado, jurisdiction of causes pending in the supreme or district courts at the date of admission, of which those courts might have talien jurisdiction, had they existed at the time when such causes were commenced. STATUTES OF FRACTICAL UTILITY. ix * CHAPTER TWO. [* iJ. 8., p. 93.] DISTRICT COURTS — ORGANIZATION. District judges, appointment and residence. Sec. 551. A district judge shall be appointed for each district, except in the cases hereinafter provided. ^Every such judge shall reside in the district for which he is appointed, and for offending against this provision shall be deemed guilty of a high misdemeanor. Judges in Alabama. Sbc. 652. There shall be appointed in each of the States of Alabama, Georgia, Mississippi, South Carolina, and Tennessee, one district judge, who shall be district judge for each of the districts included in the State for which he is appointed, and shall, reside within some one of the «aid districts. And for offending against this provision, such judges shall be liable as in the preceding section. Districtjudgeof southern district of Florida. Sbc. 553. The district judge for the southern district of Florida shall reside at Key West. Salaries of district judges. Sbc. 554. District judges are entitled to receive jearLy salaries at the following rates, payable quarterly from the Treasury : ■[Various salaries prescribed.] No other allowance or payment shall be made to them for travel, expenses, or otherwise.' * Clerks. Sbc. 555. A clerk shall be appointed for each [* B. S., p. 93.] district court by the judge thereof, except in cases otherwise provided for by law. Sbc. 556, 557. [Relate to clerks in western district of Arkansas, and in the district of Kentucky.] Deputy clerks. Sec. 558. One or more deputies of any clerk of a district ^ourt may be appointed by the court. On the application of the clerk, and may be removed at the pleasure of judges authorized to make the appointment. In case of the death of the clerk, his deputy or deputies shall, unless removed, con- tinue in office and perform the duties of the clerk, in his name, until a clerk is appointed and qualified ; and for the default or misfeasances in office of any such deputy, whether in the life-time of the clerk or after his death, the clerk, and his estate, and the sureties in his official bond shall be liable ; and his ex- ecutor or administrator shall have such remedy for any such default or misfeas- ances committed after his death as the clerk would be entitled to if the same had occurred in his life-time. Sec. 559, 560. [Relate to deputy clerks in Indiana and Iowa.] Compensation of deputy clerks. Sbc. 561. The compensation of deputies of the clerks of the district courts shall be paid by the clerks, respectively, and allowed in the same manner that other expenses of the clerks' offices are paid and allowed. Records, where kept. Sbc. 563. The records of a district court shall be kept at the place where the court is held. When it is held at more than one place in any district, and the place of keeping the records is not specially pro- vided by law, they shall be kept at either of the places of holding the court which may be designated by the district judge. • But see Bev. Stat., §§ 597, 613. THE ENACTMENTS. [* B. S., p. 94.] * CHAPTER THREE. DISTRICT COTTETS — JtTRISDICTION. Jurisdiction. Sec. 563. The district courts shall have jurisdiction a» follows : Eirst. Of all crimes and ofEences cognizable under the authority of the United States, committed within their respective districts, or upon the high seas, the punishment of which is not capital, except in the cases mentioned in section fifty- four hundred and twelve. Title "Crimes."' Second. Of all cases arising under any act for the punishment of piracy, when no circuit court is held in the district of such court. Third. Of all suits for penalties and forfeitures incuiTed under any law of the United States. Fourth. Of all suits at common law brought by the United States, or_ by any officer thereof, authorized by law to sue. Fifth. Of all suits in equity to enforce the lien of the United States upon any real estate for any internal-revenue tax, or to subject to the payment of any such tax any real estate owned by the delinquent, or in which be has any right, title, or interest. Sixth. Of all suits for the recovery of any forfeiture or damages under section thirty-four hundred and ninety. Title "Debts dub by or to the United States ; " and such suits may be tried and determined by any district court within whose jurisdictional limits the defendant may be found. Seventh. Of all causes of action arising under the postal laws of the United States. Eighth, as amended 1875. Of all civil causes of admiralty and maritime jurisdiction ; saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it ; and of all seizures on land and on waters not within admiralty and maritime jurisdiction. And such jurisdic- tion shall be exclusive, except in the particular cases where jurisdiction of such causes and seizures is given to the circuit courts. And shall heme original and exclusive cognizance of all prizes trought into the United States, except as provided in paragraph six of section six hundred and twenty -nine.'^ • [* B. 8., p. 95.] * Ninth. Of all proceedings for the condemnation of prop- erty taken as prize, in pursuance of section fifty-three hundred and [seventy-six] eight,' Title '; Insurrection." Tenth. Of all suits by the assignee of any debenture for drawback of duties issued under any law for the collection of duties, against the person to whom such debenture was originally granted, or against any indgrser thereof, to recover the amount of such debenture. Eleventh. Of all suits authorized by law to be brought by any person for the recovery of damages on account of any injury to his person or property, or of the deprivation o£ any right or privilege of a citizen of the United States ' But as to jurisdiction of the dis- way of amendment, by act of Feb. 18 trict courts to hold summary trials of 1875, 18 Stat, at L., 317. certain offences, see Rev. Stat., §§ ' Eight is substituted for seventy- 4300-4305. six, by amendment; act of Feb. 18, ' The words in italic, are added by 1875, 18 Stat, at L., 317. STATUTES OF PRACTICAL UTILITY. xi by any act done in furtherance of any conspiracy mentioned in section nineteen hundred and eighty-five,' Title, "CivrL Rights." Twelfth. Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, ordinance, regulation, custom, or usage of any State, of any right, privilege, or immunity secured by the Constitution of the United States, or of any right secured by any law of the United States to persons within the jurisdiction thereof.' Thirteenth. Of all suits to recover possession of any office, except that of elector of President or Vice-President, Representative or Delegate in Congress, or member of a State legislature, authorized by law to be brought, wherein it appears that the sole question touching the title to such office arises out of the denial of the right to vote to any citizen offering to vote, on account of race, color, or previous condition of servitude : Provided, That such jurisdiction shall extend only so far as to determine the rights of the parties to such office by reason of the denial of the right guaranteed by the Constitution of the United States, and secured by any law, to enforce the right of citizens of the United States to vote in all the States. Fourteenth. Of all proceeding by the writ of quo warranto, prosecuted by any district attorney, for the removal from office of any person holding office, except as a member of Congress, or of a State legislature, contrary to the pro- visions of the third section of the fourteenth article of amendment of the Con- stitution of the United States. Fifteenth. Of all suits by or against any association established under any law providing for national banking associations within the district for which the court is held. Sixteenth. Of all suits brought by any alien for a tort [* ij. S., p. 96.] only in violation of the law of nations, or of a treaty of the United States. Seventeenth. Of all suits against consuls or vice-consuls, except for offenses above the description aforesaid. Eighteenth. The district courts are constituted courts of bankruptcy, and shall have in their respective districts original jurisdiction in all matters and proceedings in bankruptcy. Certain seizures cognizable in any district into which the property is taken. Sec. 564. Proceedings on seizures for forfeiture of any vessel or cargo entering any port of entry which has been closed by the President in pursuance of law, or of goods and chattels coming from a State or section declared by proclamation of the President to be in insurrection into other parts of the United States, or of any vessel or vehicle conveying such property, or convey- ing persons to or from such State or section, or of any vessel belonging, in whole or in part, to any inhabitant of such State or section, may be prosecuted in any district court into which the property so seized may be taken, and pro- ceedings instituted ; and the district court thereof shall have as full jurisdic- tion over such proceedings as if the seizure was made in that district. May proceed in prize causes after appeal. Sec. 565. Any district court ' Sec. 1980 is the reference here nate to that defined in the text, has intended. since been conferred. Act of Mar. 1, " Additional jurisdiction, very cog- 1875, 18 Stat, at L., 336, § 3. xii THE ENACTMENTS. may, notwithstanding an appeal to the Supreme Court, in any prize cause, make and execute all necessary orders for the custody and disposal of the prize property, and, in case of an appeal from a decree of condemnation, may proceed to make a decree of distribution, so far as to determine what share of the prize shall go to the captors, and what vessels are entitled to participate therein. Trial of issues of fact. Sec. 566. The trial of issues of fact in the district court, in all causes except cases in equity and cases of admiralty and maritime jurisdiction, and except as otherwise provided in proceeding in bankruptcy, shall be by jury. In causes of admiralty and maritime jurisdiction relating to any matter of contract or tort arising upon or concerning any vessel of twenty tons burden or upward, enrolled and licensed for the coasting trade, and at the time employed in the business of commerce and navigation between places in different States and Territories upon the lakes and navigable waters con- necting the lakes, the trial of issues of fact shall be by jury when either party requires it.' Transfer of records to district courts when a Territory becomes a State. Sec. 567. When any Territory is admitted as a State, and a district court is established therein, all the records of the proceedings in the several cases pending in the court of appeals of said Territory at the time of such admission, and all records of the proceedings in the several cases in which judgments or decrees had been rendered in said territorial court before that time, and from which writs of error could have been sued out or appeals could have been taken, or from which writs of error had been sued out or appeals had been taken and prosecuted to the Supreme Court, shall be transferred to and deposited in the district court for the said State. District judge shall demand and compel delivery of records of territorial court. Sec. 568. It shall be the duty of the district judge, in the case pro- vided in the preceding section, to demand of the clerk, or other person having possession or custody of the records therein mentioned, the delivery thereof, to be deposited in said district court ; and, in case of the refusal of such clerk or person to comply with such demand, the said district judge shall compel the delivery of said records by attachment or otherwise, according to law. Jurisdiction of district courts in cases transferred from territorial courts. Sec. 569. When any Territory is admitted as a State, and a district court is established therein, the said district court shall take cognizance of all cases which were pending and undetermined in the superior court of such Territory, from the judgments or decrees to be rendered in which *writs of error [* R. S., p. 97.] could have been Sued out or appeals taken to the Supreme Court, and shall proceed to hear and determine the same. Commissioners to administer oaths to appraisers. Sec. 570. Any district judge may appoint commissioners, before whom appraisers of vessels or goods and merchandise seized for breaches of any law of the United States may be sworn ; and such oaths, so taken, shall be as effectual as if taken before the judge in open court. Certain district courts to have circuit-court jurisdiction. Sec. 571. The district courts for the western district of Arkansas, the northern district of Miss- ' See Q-illett v. Pierce, 1 Brown, Adm., 553. STATUTES OF PRACTICAL UTILITY. xiii issippi, the -western district of South Carolina, and the district of West Virginia, shall have, in addition to the ordinary jurisdiction of district courts, jurisdic- tion of all cailseSj except appeals and writs of error, which are cognizable in a circuit court; and shall proceed therein in the same manner as a circuit court. CHAPTER FOUR. DISTKICT COUBTS — SESSIONS. Terms of district courts. Sec. 573. The regular terms of the district courts shall be held at the times and places following [saving as to Sunday] : In the southern district of Alabama, at Mobile, on the fourth Monday in [April,] December,^ and the [second Monday after the fourth Monday in Novem- ber] first Monday of June,^ In the middle district of Alabama, at Montgomery, on the [fourth] ^s4' Monday in May and November. In the northern district of Alabama, at Hantsville, on the third [Monday in May and November] _;??•«* Monday of April and the second Monday of October.^ In the eastern district of Arkansas, at Little Rock, on the first Monday in April and October. In the western district of Arkansas, at Fort Smith, on the second Monday in May and November, and at Helena on the second Monday in March and September. * In the district of California, at San Francisco, on the first [*JS. 8., p. 98.] Monday in April, on the second Monday in August, and on the first Monday in December. In the district of Connecticut, at New Haven, on the fourth Tuesday in Feb- ruary ; at Hartford, on the fourth Tuesday in May ; at New Haven, on the fourth Tuesday in August, and at Hartford on the fourth Tuesday in November. In the district of Delaware, at Wilmington, on the second Tuesday in Jan- uary, April, June, and September. In the northern district of Florida, at Tallahassee, on the first Monday in February, at Pensacola, on the first Monday in March, and at Jacksonville, on the first Monday in December. ' In the southern district of Florida, at Key West, on the first Monday in May and November. In the northern district of Georgia, at Atlanta, on the first Monday in March, and September. In the southern district of Georgia, at Savannah, on the second Tuesday in February, May, August, and November. In the northern district of Illinois, at Chicago, on the first Monday in July and the third Monday in December. In the southern district of Illinois, at Springfield, on the first Monday in January and June, and at Cairo, on the first Monday in March and October. In the district of Indiana, at Indianapolis, on the first Tuesday in May and November, and at New Albany, on the first Monday in January and July, and at Evansville, on the first Monday in [February and August,] April and Octol^er.'' In the northern division of the district of Iowa, at Dubuque, on the third Tuesday in April and November. ' Act June 22, 1874, 18 St. at L., 195. ' Act June 23, 1875, 18 St. at L., 251, xiv THE ENACTMENTS. In the southern division, at Keokuk, on the third Tuesday in [Marph and September,] Jarmary and June.'- In the central division, at Des Moines, on the second Tuesday in May and the third Tuesday in October. In the western division, at Council Bluffs, on the [third Tuesday in January and July] fourth Monday of Ma/rch and the fourth Monday of September.'- In the district of Kansas, at the seat of government, on the second Monday in April, and at Leavenworth, on the second Monday in October. In the district of Kentucky, at Covington, on the second Monday in May and the first Monday in December ; at Louisville, on the third Monday in February and the first Monday in October; at Frankfort, on the third Monday in May and the first Monday in January; and at Paducah, on the second Monday in April and the first Monday in November. In the district of Louisiana, at New Orleans, on the third Monday in Febru- ary, May, and November. In the district of Maine, at Portland, on the first Tuesday in February; at Bangor, on the fourth Tuesday in June ; at Bath, on the first Tuesday in Sep- tember, and at Portland on the first Tuesday in December. [* S. 8., p. 99.] * In the district of Maryland, at Baltimore, on the first Tues- day in March, June, September, and December. In the district of Massachusetts, at Boston, on the third Tuesday in March, on the fourth Tuesday in June, on the second Tuesday in September, and on the first Tuesday in December. In the eastern district of Michigan, at Detroit, on the first Tuesday in March, June, and November. In the western district of Michigan, at Grand Bapids, on the third Monday in May and October. In the district of Minnesota, at Winona, on the first Monday in June, and at Saint Paul on the first Monday in October. In the northern district of Mississippi, at Oxford, on the first Monday in June and December. In the southern district of Mississippi, at Jackson, on the fourth Monday in January and June. In the eastern district of Missouri, at Saint Louis, on the first Monday in May and November. In the western district of Missouri, at Jefferson, on the first Monday in March and'September. In the district of Nebraska, at Omaha, on the first Monday in May, and on the first Wednesday after the second Tuesday in October. In the district of Nevada, at Carson City, on the first Monday in February, May, and October. In the district of New Hampshire, at Portsmouth, on the third Tuesday in March and September; at Exeter, on the third Tuesday in June and December. In the district of New Jersey, at Trenton, on the third Tuesday in January, April, June, and September. In the northern district of New York, at Albany, on the third Tuesday in January; at Utica, on the third Tuesday in March; at Rochester, on the second ' These changes are made by act of Feb. 9, J874, 18 Stat, at L., 15. STATUTES OF PRACTICAL UTILITY. xv Tuesday in May; at Buffalo, on the third Tuesday in August; at Auburn, on the third Tuesday in November; and, in the discretion of the Judge of said court, one term annually at such time and place within the counties of Saint I'jawrence, •Clinton, Jefferson, Oswego, and Franklin as he may from time to time appoint. Such appointment shall be made by a notice of at least twenty days published in the State paper of the State of New York, and in one newspaper published at the place where said court is to be held ; and said term shall be held only for the trial of issues of fact arising within said counties. In the southern district of New York, in the city of New York, on the first Tuesday in every month. In the eastern district of New York, in Brooklyn, on the first Wednesday in every month. In the eastern district of North Carolina, at Elizabeth City, on the third Monday in April and October; at New Berne, on the fourth Monday in April and October; 'and at Wilmington, on the first Monday after the fourth Monday in April and October. In the western district of North Carolina, at Greensborough, on the first Monday in April and October; at Statesville, on the third Monday in April and October; and at Asheville, on the first Monday in May and No- vember. * In the northern district of Ohio, at Cleveland, on the [* R. 8., p. 100.] rfirst Tuesday in January, April, and October ; and at Toledo, two terms, to be held at such times as shall be fixed by the judge of said •district. , In the southern district of Ohio, at Cincinnati, on the first Tuesday in Feb- Tuary, April, and October. In the district of dregon, at Portland, on the first Monday in March, July, and November. In the eastern district of Pennsylvania, at Philadelphia, on the third Mon- day in February, May, August, and November. In the western district of Pennsylvania, at Pittsburgh, on the first Monday in May, and on the third Monday in October; at Williamsport, on the third Mon- day in June, and on the first Monday in October; at Erie, on the second Monday in January, and third Monday in July. In the district of Ehode Island, at Providence, on the first Tuesday in Feb- ruary and August; at Newport, on the second Tuesday in May, and on the third Tuesday in October. In the eastern district of South Carolina, at Charieston, on the first Monday in January, May, July, and October. In the western district, at Greenville, on the first Monday in August. In the eastern district of Tennessee, at Knoxville, on the second Monday in -January and July. In the middle district of Tennessee, at Nashville, on the third Monday in April and October. In the western district of Tennessee, at Memphis, on the fourth Monday in TSIay and November. ' In the easteni district; of Texas, at Brownsville, on the first Monday in March and October; at Galveston, on the first Monday in May and December. xvi THE ENACTMENTS. In the western district of Texas, at Austin, on the first Monday in Jannary and June ; at Tyler, on the fourth Monday in April, and on the first Monday in November. In the district of Vermont, at Burlington, on the fourth Tuesday in February \ at Windsor, on the [Monday next after the fourth Tuesday in July] thwd Tues- day in May ; at Rutland, on the [sixth A.ajf\ first Tuesday^ of October.' In the eastern district of Virginia, at Richmond, on the first Monday in April and October ; at Alexandria, on the first Monday in January and July ; and at Norfolk on the first Monday in May and November. In the western district of Virginia, at Danville, on the Tuesday after the fourth Monday in February and August; at Lynchburgh, on the Tuesday after the third Monday in March and September ; at Abingdon, on the Tuesday after the fourth Monday in May and October; and at Harrisonburgh, on the Tues- day after the first Monday in May, and the Tuesday after the second Monday in October. In the district of West Virginia, at Clarksburgh, on the twenty-fourth days of March and August; and at Wheeling, on the sixth days of April and Sep- tember; and at Charleston, on the nineteenth days of April and September. In the eastern district of Wisconsin, at Oshkosb, on the [first Monday in July} second Tuesda/y of July; '' at Milwaukee, on the first Monday in January and October. In the western district of Wisconsin, at Madison, on the first Monday in June; and at La Crosse, on the third Tuesday in September. [* S. S., p. 101.] * Effect of altering terms of district courts. Sec. 573. No action, suit, proceeding, or process in any district court shall abate or be rendered invalid by reason of any act changing the time of holding such court ; but the same shall be deemed to be returnable to, pending, and triable in the terms established next after the return day thereof. Court always open as court of admiralty, for certain purposes. Sec. 574. The district courts, as courts of admiralty, and as courts of equity, so far as equity jurisdiction has been conferred upon them, shall be deemed always open, for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to the hearing upon their merits, of all causes pending therein. And any district judge may, upon reasonable notice to the parties, make, and direct and award, at chambers, or in the clerk's office, and in vacation as well as in term, all such process, com- missions, orders, rules, and other proceedings, whenever the same are not grantable of course, according to the rules and practice of the court. District court in southern district of Florida. Sec. 575. The district court for the southern district of Florida shall at aU times be open, for the purpose of hearing and deciding causes of admiralty and maritime jurisdiction. Sec. 576, 577. [Relate to the districts of Wisconsin, Kentucky and Indiana.] • The changes in this paragraph, are ' Act of June 16, 1874, 18 Stat, at made by act of June 5, 1875, 18 Stat. L., 75. at L., 53. STATUTES OF PRACTICAL UTILITY. xvii Monthly ndjonrnments for trial of criminal oanses. Bec. 678. District coarts sliall liold monthly adjournments of their regular terms, for the trial of criminal causes, when their business requires it to be done, in order to prevent undue expenses and delays in such cases. Adjourned terms. Seo. 579. The judge of any district court in Indiana, Kentucky, Louisiana, Michigan, Ohio, Pennsylvania, and Texas, may adjourn the same from time tfl time, to meet the necessities or convenience of the business. Sec' 580. [Relates to the districts of Kentucky and Indiana.] Special terms. Sec. 581. A special term of any district court may be held at the same place where any regular term is held, or at such other place in the district as the nature of the business may require, and at such time and upon Buch notice as may be ordered by the district judge. And any business may be transacted at such special term which might be transacted at a regular term. * Sec. 583. [Relates to the district of Tennessee.] [* R. S., p. 103.] Adjournment in case of non-attendance of the jndgfe. Sec. 583. If the judge of any district court is unable to attend at the commence- ment of any regular, adjourned, or special term, the court may be adjourned by the marshal, by virtue of a written order directed to him by the judge, to the next regular term, or to any earlier day, as the order may direct. Adjournment in case of non-attendance of the judge in certain districts. Sec. 584. If the judge of any district court in Alabama, Califoinia, Georgia, Indiana, Iowa, Kentucky, North Carolina, Tennessee, or "West Virginia is not present at the time for opening the court, the clerk may open and adjourn the court from day to day for four days; and if the judge does not appear by two o'clock after noon of the fourth day, the clerk shall adjourn the court to the next regular term. But this section is subject to the' provisions of the preced- ing and next sections. Sec. 685, 586. [Relates to the districts of Indiana and Kentucky.] Sec. 586. [Relates to the districts of California, Iowa, and Tennessee.] Business certified to circuit court in case of disability of district jud^e. Sec. 587. When satisfactory evidence is shown to the circuit judge of any circuit, or, in his absence, to tlie circuit justice allotted to the circuit, that the judge of any district therein is disabled to hold a district court, and to perform the duties of his office, and an application accordingly is made in writing to such circuit judge or justice, by the district attorney or marshal of the district, the said judge or justice, as the case may be, may issue his order in the nature of a certiorari, directed to the clerk of such district court, re()uiringhim forth- with to certify into the next circuit court to be held in said district all suits and processes, civil and criminal, depending in said district court, and unde- termined, with all the proceedings thereon, and all the files and papers relating thereto. Said order shall be immediately published in one or more news- papers printed in said district, at least thirty days before the session of such circuit court, and shall be sufficient notification to all concerned ; and there- upon the circuit court shall proceed to hear and detei'mine the suits and processes so certified. And all bonds and recognizances taken for, or return- able to, such district court, shall be held to be taken for, and returnable to, Vol. L— B xviii THE ENACTMENTS. said circuit court, and shall have the same effect *therein [* B. 8., p. 103.] as they could have had in the district court to which they ■were taken. Snits bronght in district conrt after order to certify to circnit court. Sec. 588. When an order has been made as provided in the preceding section, the clerk of the district court shall continue, during the disability of the district judge, to certify, as aforesaid, all suits, pleas, and processes, civil and criminal, thereafter begun in said court, and to transmit them to the circuit court next to be held in that district; and the said court shall proceed to Iiear and determine them as provided in said section : Prmided, That when the disability of the district judge ceases or is removed, the circuit court shall order all such suits and proceedings then pending and undetermined therein, in -which the district courts have an exclusive original cognizance, to be remanded, and the clerk of such court shall transmit the same, with all matters relating thereto, to the district court next to be held in that district; and the same proceedings shall then be had in the district court as would have been had if such suits had originated or been continued therein. Powers of district judge vested, during disability, in circuit judge. Sbc. 589. In the case provided in the two preceding sections the circuit judge, and in his absence the circuit justice, shall have and exercise, during such disability, all the powers of every kind vested by law in such district judge. But this provision does not require them to hold any special court, or court of admiralty, at any other time than that fixed by law for holding the circuit court in said district. Preparatory examinations and orders in admiralty cases by district clerk. Sec. 590, as amended 1875. When the business of a [circuit] district^ court is certified into the circuit court on account of the disability of the district judge, the district clerk shall be authorized, by order of the circuit judge, or, in his absence, of the circuit justice within whose circuit such district is included, to take, during such disability, all examinations and depositions of witnesses, and make all necessary rules and orders, prieparatory to the final hearing of all causes of admiralty and maritime jurisdiction. District judge designiited to perform duties of disabled judge. Sec. £91. When any district judge is prevented, by any disability, from holding any stated or appointed term of his district court, or of the circuit court in his district in the absence of the other judges, and that fact is made to appear by the certificate of the clerk, under the seal of the court, to the circuit judge, or, in his absence, to the circuit justice of the circuit in which the district lies, such circuit judge or justice may, if in his judgment the public interests so require, designate and appoint the judge of any other district in the same circuit to hold said courts, and to discharge all the judicial duties of the judge 80 disabled, during such disability. Such appointment shall be filed in the clerk's oflSce, and entered on the minutes of the said district court, and a certified copy thereof, under the seal of the court, shall be transmitted by the district clerk to the judge so designated and appointed. ' "District" is substituted for by act of Feb. 1875, 18 Stat, at L., " Circuit " by way of amendment, 317. STATUTES OF PRACTICAL UTILITY. xix Desigiuition of another judge in case of accnmnlation of bnRincss. Sec. ■593. When, from the accumulation or urgency of business in any district ■court, the public interests require the designation and appointment hereinafter provided, and the fact is made to appear, by the certificate of the clerk, under the seal of the court, to the circuit judge, or, in his absEnce. to the circuit justice of the circuit in which the district lies, such circuit judge or justice may designate and appoint the judge of any other district in the same circuit to have and exercise within the district first named the same powers that are vested in the judge thereof; and each of the said district judges may, in case •of such appointment, hold separately at the same time a district or circuit court in such district, and discharge all the judicial duties of a district .judge theiein ; but no such judge shall hear appeals from the district court. When designation of another jntlge to be by Chief Justice United States. Sec. 593. If the circuit judge and circuit justice are absent from the circuit, •or are unable to execute the provisions of either of the two preceding sections, or if the district judge so designated is disabled or neglects to hold the courts and transact the business for which he is designated, the district clerk shall certify the fact to the Chief Justice of the United States, who may thereupon designate and appoint, in the manner aforesaid, the judge of any district -within sach circuit or within any circuit next contiguous; and said appointment shall be transmitted *to the district [* J2. S., p. 104.] clerk, and be acted upon by him as directed in the preced- ing section. Kerocation and new appointment. Sec. 594. The circuit judge, or circuit justice, or the Chief Justice, as the case may be, may, from time to time, if in his judgment the public intercuts so require, make a new designation and appointment of any other district judge within the said circuits, for the duties, and with the powers mentioned in the three preceding sections, and t« revoke .any previous designation and appointment. Duty of disrict jndg'e to comply with designation and appointment. Sec. 595. Jt shall be the duty of the district judge who is designated and appointed lunder either of the four preceding sections, to discharge all the judicial duties for which he is so appointed, during the continuance of such disability, or, in the case of an accumulation of business, during the time for which he is so appointed ; and all the acts and proceedings in the courts held by him, or by or before him, in pursuance of said provisions, shall have the satne effect and validity as if done by or before the district judge of the said district. Designation of district judge when public interest requires. Sec. 696. It shall be the duty of every circuit judge, whenever in his judgment the public interest so requires, to designate and appoint, in the manner and with the powers provided in section five hundred and ninety-one, the district judge of any judicial district within his circuit to hold a district or circuit court in the place or in aid of any other district judge within the same circuit; and it shall be the duty of the district judge, so designated and appointed, to hold the district or circuit" as aforesaid, without any other compensation than bis ' The word court is omitted. XX THE ENACTMENTS. regular ealary as established by law, except in the case provided in the next section. Sec. 597, 698, 599, 600. [Relate to districts of New York and of Florida. J When district jiiilge is interested in snit pending before liiui. Sec. 601. Whenever it appears that the judge of any district court is in any way concerned in interest in any suit pending therein, or has been of counsel for either party, or is so related to or connected with either party as to render it improper, in his opinion, for him to sit on the trial, it shall [* R. S., p. 105.] be his duty, on application by either party, to cause *the fact to be entered on the records of the court; and, also, an order that an authenticated copy thereof, with all the proceedings in the suit, shall be forthwith certified to the next circuit court for the district ; and if there be no circuit court therein, to the next circuit court in the State : and if there be no circuit court in the State, to the next convenient circuit court in an adjoining State; and the circuit court shall, upon the filing of such record with its clerk, take cognizance of and proceed to' hear the case, in like manner as if it had originally and rightfully been commenced therein. Continuances by yacancy in office of district judge. Sbc. 602. When the office of judge of any district court is vacant, all process, pleadings, and pro- ceedings pending before such court shall be continued of course until the next stated term after the appointment and qualification of his successor; except when such first-mentioned term is held as provided in the next section. Vacancy in office of district judge. Sec. 603. When the office of district judge is vacant in any district in a State containing two or more districts, th(5 judge of the other or of either of the other districts may hold the district coui-t, or the circuit court in case of the sickness or absence of the other judges thereof, in the district where the vacancy occurs, and discharge all the judicial duties of judge of such district, during such vacancy; and all the acts and proceedings in said courts, by or before such judge of an adjoining district, shall have the same effect and validity as if done by or before a judge appointed for such dis- trict. CHAPTER FIVE. JUDICIAL CIKCDITS. Circnits. Sec 604. The judicial districts of the United States are divided into nine circuits as follows: Fir.st. The first circuit includes the districts of Rhode Island, Massachusetts, New Hampshire, and Maine. ^ Second. The second circuit includes the districts of Vermont, Connecticut, and New York. Third. The third circuit includes the districts of Pennsylvania, New Jersey, and Delaware. Fourth. Tlie fourth circuit includes the districts of Maryland, Virginia, West Virginia, North Carolina, and South Carolina. Fifth. The fifth circuit includes the districts of Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas. Sixth. Thesixthcircuitincludes the districts of Ohio, Michigan, Kentucky, and Tennessee. STATUTES OF PRACTICAL UTILITY. XXI Seventh. The seventh circuit includos the districts of Indiana, Illinois, and Wisconsin. Eighth. The eighth circnit includes the districts of Nebraska, Minnesota, Iowa, Missouri, Kansas, and Arkansas.* Ninth. The ninth circuit includes the districts of California, Oregon, and Nevada. * CHAPTER SIX. [* R. S., p. 106.] CIBCUIT COURTS — ORGANIZATION. Justices allotted to circuit^, how desi^iinted. Sec. 605. The words "cir- ■cuit justice" and '"justice of a circuit," when used in this Title, shall be under- stood to designate the justice of the Supreme Court who is allotted to any circuit; but the word " judge," when applied generally to any circuit, shall be understood to include such justice. Allotment of the justices to the circuits. Sec. 606. The Chief Justice and associate justices of the Supreme Court shall be allotted among the circuits by an order of the court, and a new allotment shall be made whenever it becomes necessary or convenient by reason of the alteration of any circuit, or of the new appointment of a Chief Justice or associate justice, or otherwise. If a new allotment becomes necessary at any other time than during a term, it shall be made by the Chief Justice, and shall be binding until the next term and until a new allotment by the court. Circnit judges. Sec. 607. For each circuit there shall be appointed a cir- -cuit judge, who shall have the same power and jurisdiction therein as the justice ■of the Supreme Court, allotted to the circuit, and sliall be entitled to receive a salary at the rate of six thousand dollar.s a year, payable quarterly on the iirst -days of January. April, July, and October. Every circuit judge shall reside within his circuit. Circnit courts, where estnblislied. Stsc. 608. Circuit courts are established 4is follows: One for the three districts of Alabama, one for the eastern district of Arkansas, one for the southern district of Mississippi, and one for each dis- Irict in the States not herein named ; and shall be called the circuit courts for the districts for which they are established. » Circuit courts; by whom to be held. Sec. 609. [* B. S., p. 107.] Oircuit courts shall be held by the circuit justice, or by the •circuit judge of the circuit, or by the district judge of the district sitting alone, or by any two of the said judges sitting together. Justices of Supreme Court to attend once iu every two years. Sec. 610. It shall be the duty of the Chief Justice, and of each Justice of the Supreme Court, to attend at least one term of the circuit court in each district of the circuit to which he is allotted during every period of two years. Judges of circuit courts may sit apart. Sec. 611. Cases may be heard and tried by each of the judges holding a circuit court sitting apart by direction of the presiding justice or judge, who shall designate the business to be done by each. Circnit courts held at same time in different districts. Sec. 612. Circuit courts may be held at the same time in the different districts of the same circuit. ' Colorado was added to this circuit by act of June 26, 187S. ante, p. viii. xxii THE ENACTMENTS. Criminal terms in the sontliern district of New York ; how held. Sk(v 613. The terms nf the circuit court for the southern district of New Tork^ appointed exclusively for the trial and disposal of criminal business, may be held by the circuit judge of the second judicial circuit and the district judges for the southern and eastern districts of New York, or any one of said three judges; and at every such term held by said jud Sec. 630. The circuit courts shall have jurisdiction in matters in bankruptcy, to be exercised within the limits and in the manner provided by law. Appeals in admirnlty canses. Sec. 631. From all final decrees of a district court in causes of equity or of admiralty and maritime jurisdiction, except prize causes, where the matter in dispute exceeds the sum or value of fifty dollars, exclnsive of costs, an appeal shall be allowed to the circuit court next to bie held in such district, and such circuit court is required to receive, hqat, and determine such appeal. ' Copies of proofs and entries certified to appellate court.' Sbc. 633. In case of an appeal, as provided by the preceding section, copies of the proofs and of such entries and papers on file as may be necessary on hearing of the appeal, may be certified up to the appellate court. • See RtB. Stat., §§ 1977, 1979; also act of Mar. 1, 1875, 18 Stat, at L., 336. xxvi THE ENACTMENTS. Writ or error to judgments of district courts. Sec. 633. Final judgment* of a district court in civil actions, where the matter in dispute exceeds the sum or value of fifty doUai-s, exclusive of costs, may be re-examined and reversed or afSrmed in a circuit court, holden in the same district, upon a ■writ of error. Circuit court in and for the three districts of Alabama. Sec. 634. The circuit court in and for the three districts of Alabama shall exercise appellate and revisory jurisdiction of the decrees and judgments of the district courts for the said districts, under the laws conferring and regulating the juris- diction, powers, and practice of circuit courts in cases removed into such courts by appeal or writ of error. Writs of error and appeals within one year. Sec. 635. No judgment, decree, or order of a district court shall be reviewed by a circuit court, on writ of error or appeal, unless the writ of error is sued out, or the appeal is talsen, within one year after the entry of such judgment, decree, or order i^ProoifZed, That where a party entitled to prosecute a writ of error, or to take an appeal is an infant, or non compos mentis, or imprisoned, such writ of error may be prosecuted, or such appeal may be taken, within one year after the entry of the judgment, decree, or order, exclusive of the term of such [* R. S., p. 113.] disability. * Judgrment or decree on review. Skc. 636. A circuit court may affirm, modify, or reverse any judgment, decree, or order of a district court brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the district court, as the justice of the case may require. Jurisdicliuu of cases transferred from district courts on acconnt of disa- bility, &c. Sec. 637. When any cause, civil or criminal, of whatever nature, is removed into a circuit court, as provided by law, from a district court wherein the same is cognizable, on account of the disability of the judge of such district court, or by reason of his being concerned in interest therein, or having been of counsel for either party, or being so related to or connected with either party to Buch cause as to render it improper, in his opinion, for him to sit on the trial thereof, such circuit court shall have the same cognizance of such cause, and in like manner, as the said district court might have, or as said circuit ' might have if the same had been originally and lawfully commenced therein ; and shall pro- ceed to hear and determine the same accordingly. Courts always open for certain purposes. Sec. 638. The circuit courts, as courts of equity, shall be deemed always open for the purpose of filing any pleading, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, rules, and other proceedings, preparatory to the hearing, upon their merits, of all causes pending therein. And any judge of a circuit court may, upon reasonable notice to the parties, make, and direct and award, at chambers or in the clerk's office, and in vaca- tion as well as in term, all such process, commissions, orders, rules, and other proceedings, whenever the same are not grantable, of course, according to tho rules and practice of the coart. The word court omitted in the Roll. STATUTES OF PRACTICAL UTILITY. xxvii Bemoral of suits against aliens, &e., Tvliere nnionnt of $500 in dispnte. Bbc. 639. Any suit commenced in any State court, wherein the amount in dis- pute, exclusive of costs, exceeds the sum or value of five hundred dollars, to be made to appear to the satisfaction of said court, may be removed, for trial, into the circuit court, for the district where such suit is pending, next to be held after the filing of the petition for such removal hereinafter mentioned, in the cases and in the manner stated in this section. First. When the suit is against an alien, oris by a citizen of the State where- in it is brought, and against a citizen of another State, it may be removed on the petition of such defendant, filed in said State court at the time of entering his appearance in said State court. I Second. When the suit is against an alien and a citizen of the State where- in it is brought, or is by a citizen of such State against a citizen of the same, and a citizen of another State, it may be so removed, as against said alien or citizen of another State, upon the petition of such defendant, filed at any time before the trial or final hearing of the cause, if, so far as it relates to him, it is brought for the purpose of restraining or enjoining him, or is a suit in which there can be a final determination of the controversy, so far as concerns him, without the presence of the other defendants as parties in the cause. But such removal shall not take away or prejudice the right of the pIain'tiflE;to proceed at the same time with the suit in tlie State court, ns against the other defendants. Third. When a suit is between a citizen of the State in which it is brought and a citizen of another State, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if, before or at the time of filing said petition, he malces and flies in said State court an aflBdavit, stating that he has reason to believe and does believe that, from prejudice or local influence, he will not be able to obtain justice in such State court. In order to such removal, the petitioner in the cases aforesaid must, at the time of filing his petition therefor, offer in taid State court good and sufficient surety for his entering in such circuit court, on the first day of its session, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the cause, *or, iri said cases where a citizen of the State in which the suit is brought is a defen- [* B. 8., p. 114.] dant, copies of- all process, pleadings, depositions, testimony, and other proceedings in the cause concerning or affecting the petitioner, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein. It shall thereupon be the duty of the State court to accept the surety and to proceed no further in the cause against the petitioner, and any bail that may have been originally taken shall be discharged. When the said copies are entered as aforesaid in the circuit court, the cause shall there proceed in the same manner as if it had been brought there by origi- nal process, and the copies of pleadings shall have the same force and efi'ect, in every respect and for every purpose, as the original pleadings would have had by the laws and practice of the courts of such State if the cause had remained in the State court. Kenioval of suits against corporations organized nnder a latr of United States. Sec. 640. Any suit commenced in any court other than a circuit or xxviii THE ENACTMENTS. district court of the United States against any corporation other than a banking ■corporation, organized under a law of the United States, or against any member thereof as such member for any alleged liability of such corporation, or of surh member as a member tlioreof, may be removed, for trial, in the circuit court for the district where such suit is pending, upon the petition of such defendant, verified by oath, stating that such defendant has a defense arising under or by virtue of the Constitution or of any treaty or law of the United States. Such removal, in all other respects, shall be governed by the provisions of the pro- ceding section. Kcmoval of causes against persons denied any civil right, &c. Sec. 641. When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State, or in the part of the State where such suit or prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens ot the United States, or of all persons within the jurisdiction of the United States, or against any oflScer, civil or military, or ■other person, for any arrest or imprisonment or other trespasses or wrongs, made or committed by virtue of or under color of authority derived from any law providing for equal rights as aforesaid, or for refusing to do any act on the ground that it would be inconsistent with such law, such suit or prosecution may, upon the petition of such defendant, filed in said State court, at any time before the trial or final hearing of the cause, stating the facts and verified by oath, be removed, for trial, into the next circuit court to be held in the district where it is pending. Upon the filing of such petition all further proceedings in the State courts shall cease, and shall riot be resumed except as hereinafter pro- vided. But all-bail and other security given in such suit or prosecution shall continue in like force and effect as if the same had proceeded to final judgment and execution in the State court. It shall be the duty of the clerk of the State court to furnish such defendant, petitioning for a removal, copies of said process against him, and of all pleadings, depositions, testimony, and other proceedings in the case. If such copies arc filed by said petitioner in the circuit court on the first day of its session, the cause shall proceed therein in the same manner as if it had been brought there by original process; and if the said clerk refifcea or neglects to furnish such copies, the petitioner may thereupon [* R. S., p. 115.] docket * the case in the circuit court, and the said court eliall then have jurisdiction therein, and may, upon proof of such refusal or neglect of said clerk, and upon reasonable notice to the plaintiff, require the plaintiff to file a declaration, petition, or complaint in the cause; and, in case of his default, may order a nonsuit and dismiss the case at the costs of the plaintiff, and such dismissal shall be a bar to any further suit touching the matter in controversy. But if, without such refusal or neglect of said clerk to furnish such copies and proof thereof, the petitioner for removal fails to file copies in the circuit court as herein provided, a certificate, under the seal of the circuit court, stating such failure, shall be given, and upon the production thereof in said State court, the cause shall proceed therein as if no petition for a removal had been filed. When petitioner is in actual custody of State conrt. Sec. 642. When all the acts necessary for the removal of any suit or prosecution, as provided in the preceding section, have been performed, and the defendant petitioning for such STATUTES OF PRACTICAL UTILITY. xxix removal is in actual custody on process issued by said State court, it shall be tbe duty of the clerk of said circuit court to issue a writ of habeas corpus cum causa, and of the marshal, by virtue of said writ, to take the body of the: defendant into his custody, to be dealt with in said circuit court according to law and the orders of said court, or, in vacation, of any judge thereof ; and the marslial sliall file with or deliver to the clerk of said State court a duplicate- copy of said wi'it. Kciiioval of suits and prosecutions n^ainst revenue officers and officers acling^ under registration laws. Sec. 643. When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States now or hereafter enacted, or. against any person acting under or by authority of any such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority claiiijed by such officer or other person under any such law ; or is commenced against any person holding- property or estate by title derived from any such officer, and affiicts the validity of any such revenue law; or is commenced against any officer of the United States, or other person, on account of any act done under the provisions of Title XXVI, ''The Elective Prahchisb," or on account of any right, title or authority claimed by such officer or other person under any of the said pro visions, the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the circuit court next to be holden in the district where the same is pending, upon the petition of such defendant ta said circuit court, and in the following manner: Said petition shall set forth the nature of the suit or prosecution, and be verified by affidavit; and, together with a certificate signed by an attorney or counsellor at law of some court of record of the State where such suit or prosecution is commenced, or of the United States, stating that, as counsel for the petitioner, he has examined the proceed- ings against him, and carefully inquired into all matters set forth in the petition, and that he believes them to be tme, shall be presented to the-said circuit court, if in session, or if it be not, to the clerk thereof at his office, and shall be filed in said office. The cause shall thereupon be entered on the docket of the cir- cuit court, and shall proceed as a cause originally commenced in that court; but all bail and other security given upon such suit or prosecution shall continue in like force and eflect as if the same had proceeded to final judgment and execu- tion in the State court. When the suit is commenced in the Stat^ court by summons, subpcena, petition, or another process except capias, the clerk of the circuit court shall issue a writ of certiorari to the State court, requiring it to send to the circuit court the record and proceedings iu the cause. When it is com- menced by capias, or by any other similar form of proceeding by which a personal arrest is ordered, he shall issue a writ of habeas corpus cum causa, a duplicate of which shall be delivered to the clerk of the State court, or left at his office, by the marshal of the district, or his deputy, or by some person duly authorized thereto ; and thereupon it shall be the duty of the State court to stay all further * proceedings in the cause, and the suit or [* R. S., p. 116.] prosecution, upon delivery of such process, or leaving the same as aforesaid, shall be held to be removed to the circuit court, and any further proceedings, trial, or judgment therein in the State court shall he void. And if the defendant in the suit or prosecution be in actual custody on mesne process XXX TEE ENACTMENTS. therein, it shall be the duty of the marshal, by virtue of the writ of habeas cor- pus cum causa, to take the body of the defendant into his custody, to be dealt with in the cause according to law ancl the otder of the circuit court, or, in vacation, of any judge thereof; and if, upon the removal of such suit or prose- cution, it is made to appear to the circuit court that no copy of the recci'd and proceedings therein in the State court can be obtained, tlie circuit court may allow and require the plaintiflf to proceed de novo, and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions origi- nally brought in said circuit court. On failure of the plaictiif so to proceed, Judgment of non prosequitur may be rendered against him, with costs for the defendant. Bemoval of suits by aliens in a pavticiilar case. Sec. 644. Whenever a personal action has been or shall be brought in any' State court by an alien against any citizen of a State who is, or at the time the alleged action accrued was, a civil oflBcer of the United States, being a non-resident of that State wherein jurisdiction is obtained by the State court, by personal service of pro- cess, such action may be removed into the circuit court of the United States in and for the district in which the defendant sball have been served with the process, in the same manner as now provided for the removal of an action brought in a State court by the provisions of the preceding section. When copies of records are refused by clerk of State conrt. Sec. 645. In any case where a party is entitled to copies of the record and proceedings in any suit or prosecution in a State court, to be used in any court of the United States, if the clerk of said State court, upon demand, and the payment or ten- der of the legal fees, refuses or neglects to deliver to him certified copies of such records and proceedings, the court of the United States in which such record and proceedings are needed may, on proof by afiidavit that tlie clerk of said State court has refused or neglected to deliver copies thereof, on demand as aforesaid, direct such record to be supplied by afiidavit, or otherwise, as the circumstances of the case may require and allow ; and, thereupon, such proceed- ing, trial, and judgment may be had in the said court of the Unite3 States, and all such processes awarded, as if certified copies of such records and proceedings had been regularly before the said court. * Attnchiiiciiis, injunctions, and indemnify bonds to remain in force after removal. Sec. 6i6. When a suit is removed for trial from a State court to a circuit court, as provided in the foregoing sections, any attachment of the goods or estate of the defendant by the original process shall hold the same to answer the final judgment, in the same manner as by the laws of such State they would have been held to answer final judgment had it been rendered by the court in which the suit was commenced ; and any injunction granted before the removal of the cause against the defendant applying for its removal shall continue in force until modified or dissolved by the United States court into which the cause is removed; and any bond of indemnity or other obligation, given by the plaintiflf upon the issuing or granting of any attachment, writ of injunction, 'or other restraining process, against the defendant petitioning for the removal of the cause, sliall also continue in full force and may be prosecuted by the defen- dant and made available for his indemnity in case the attachment, injunction, or other restraining process be set aside or dissolved, or judgment be rendered in his favor, in the same manner, and with the same effect as if such attachment, STATUTES OF PRACTICAL UTILITY. xxxi injunction, or other restraining process had been granted, and auch bond had been originally filed or given in such State court. * Beiiioral of suits where i)arties claim land under titles [* B. S., p. 117.] from different States. Sec. 647. If, in any action commenced in a State court, where the title of land is concerned, and the parties are citizens of the same State, and the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, the sum or value being made to appear to the satisfaction of the court, either party, before the trial, states to the court, and makes affidavit, if they require it, that he claims and shall rely upon a right or title to the land under a grunt from a State pther than that in which the suit is pending, and produces the original grant, or an exemplification of it, except where the loss of public records shall put it out of his power, and moves that the adverse party inform the court whether he claims a right or title to the land under a grant from the State in which the suit is pending, the said adverse party shall give such information, or otherwise not be allowed to plead such grant, or give it in evidence upon the trial; and if he gives information that he does •claim under such grant, the party claiming under the grant first mentioned may, on motion, remove the cause for trial into the next circuit court to be holden in the district where such suit is pending. If the party so removing the cause is defendant, the removal shall be made under the regulations governing re- movals of a cause into such court by an alien; and neither party removing the cause shall be allowed to plead or give evidence of any other title than that stated by him as aforesaid as the ground of his claim. Issues of fact, when to he tried hy jury. Sec. 648. The trial of issues of fact in the circuit courts shall be by jury, except in cases .of equity and of ad- miralty and maritime jurisdiction, and except as otherwise provided in proceed- ings in banki-uptcy, and by the next section. Issues of fact tried by the court. Sec. 649. Issues of fact in civil cases in Any circuit court may be tried and determined by the court, without the inter- vention of a jury, whenever the parties, or their attorneys of record, file with the clerk a stipulation in wriling waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same eflTect as the verdict of a jury. Division of opinion in civil causes ; decision by presiding judge. Sec. 650. Whenever, in any civil suit or proceeding in a circuit court held by a circuit justice and a circuit judge or a district judge, or by a circuit judge and a dis- trict judge, there occurs any difference of opinion between the judges as to any matter or thing to bo decided, ruled, or ordered by the court, the opinion of the presiding justice or judge shall prevail, and be considered the opinion of the court for the time being. Division of opinion in criminal causes; certificate. Sec. 651. Whenever any question occurs on the trial or hearing of any criminal proceeding before a circuit court upon which the judges are divided in opinion, the point upon which they disagree shall, during the same term, upon the request of either party, or of their counsel, be stated under the direction of the judges, and certified, under the seal of the court, to the Supreme Court at their next session; but nothing herein contained shall prevent the cause from proceed- ing if, in the opinion of the court, further proceedings can be had with- out prqudice to the merits. Imprisonment shall not be allowed nor punishment inflicted in any case where the judges of such court are xxxii THE ENACTMENTS, divided in opinon upon the question touching the said imprisonment or punishment. [*i2. S., p. 118.] Division of opinion in civil cnnscs ; ccrllllcate, *Sec. 653. When a final judgment or decree ia entered in an/ ciVil suit or proceeding before any circuit court held by a circuit justice and a. circuit judge or a district judge, or by a circuit judge and a district judge, in the trial or hearing whereof any question has occurred upon which tho- opinions of the judges were opposed, tlie point upon wliich they so disagreed Bhall, during the same term, be stated under tlie direction of the judges, and certified, and eucli certificate sliall be entered (if record. Sec. 653-656. [Relate to circuit courts in Missouri.] 6ec. G57. [Relates to circuit court for the Southern district of New York.]. ACT OP FEBRUARY IG, 1875. FOKTT-FOtrRTH CONOBEBS, FmST BESSION, CH. 77, 18 Stot. at L., 315. An act ta facilitate tJie disposition of cases in the Supreme Court of the TTnitei States, and for other purpoies. Fiudin°rs in admiralty in circuit court. Jury trials. — Tlie circuit courts- of the United States, in deciding causes of admiralty and maritime jurisdiction on the instance-side of the court, shall find the facts and the couclusions of law upon which it renders its judgments or decrees, and shall state the facts and conclusions of law separately. And in finding the facts, as before pro- vided, said court may, upon the consent of the parties who shall have appeared and put any matter of fact in issue, and subject to such general rules in the premises as shall be made and provided from time to time, impanel a jury of not less than five and not more than twelve persons, to whom shall be sub- mitted the issues of the fact in such cause, under the direction of the court, as in cases at common law. And the finding of such jury, unless set aside for lawful cause, shall be entered of record, and stand as the finding of the court, upon which judgment shall he entered according to law. The review of the judgments and decrees entered upon such findings by the Supreme Court, upon appeal, shall be limited to a determination of the questions of law arising upon the record, and to such rulings of the circuit court, excepted to at the time, as may be presented by a bxU of exceptions, prepared as in actions at law. Jury trials in patent causes. Sec. 2. Said courts, when sitting in equity for the trial of patent causes, may impanel a jury of not less than five and not more than twelve persons, subject to such general rules in the prem- ises as may, from time to time, be made by the Supreme Court, and submit to them such questions of fact arising in such cause as such circuit court shall deem expedient; and the verdict of such jury shall be treated and proceeded upon in tho same manner and with the same efi"ect as in the case of issues sent from chancery to a court of law and returned with such findings. Appellate jurisdiction of supreme court, as dependent on amonnt. STATUTES OF PRACTICAL UTILITY, xxxiii Sbc. 3. Whenever, by the laws now in force, it is required that the matter in dispute shall exceed the sum or value of two thousand dollars, exclusive of costs, in order that the judgments and decrees of the circuit courts of the United States may be re-examined in the Supreme Court, such judgments and decrees hereafter rendered shall not be re-examined in the Supreme Court unless the matter in dispute shall exceed the sum or value of five thousand dollars, exclusive of costs. Sec. 4. This act shall take effect on the first day of May, eighteen hun- dred and seventy-flve. ACT OF MARCH 3, 1875. FORTT-THISD CONGKESS, SECOND SESSIOST, OH. 137, 18 Stat. Ot L., 470. An act to determine the jurindiction of eircuit courts of the United States, ahd to regulate the removal oj causes from State courts, and for other purposes. [* 18 S., p. 470.] ♦Original jurisdiction of circuit courts. Appellate jurisdiction. The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States are plaintiffs or petitioners, or in which there shall be a controversy between citizens of different States or a controversy between citizens of the same State claiming lands under grants of different States, or a controversy between citizens of a State and foreign states, citizens, or subjects; and shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except as otherwise provided by law, and concurrent jurisdiction with the district courts of the crimes and offenses cognizable therein. But no person shall be arrested in one district for trial in another in any civil action before a eircuit or district court. And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shaU be found at the time of serving such process or commencing such proceeding, except as hereinafter provided ; nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promis- sory notes negotiable by the law merchant and bills of exchange. And the circuit courts shall also have appellate jurisdiction from the district courts under the regulations and restrictions prescribed by law. lYIiat causes removable from State court to circuit courts, and by Tvhom. Sec. 2. Any suit of a civil nature, at law or in equity, now pending or here- after brought in any State court where the matter in dispute exceeds, exclu- VOL. I— C xxxiv THE ENACTMENTS. sive of costs, the sum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall be made, under their authority, or in which the United States shall be plaintiff or petitioner, or in which there shall be a controversy between citizens of different States, or a controversy between citizens of the same State claiming lands unfler grants of different States, or a controversy between [* 18 8., p. 471.] citizens of a State and foreign * States, citizens, or subjects, either party may remove said suit into the circuit court of the United States for the proper district. And when in any suit mentioned, in this section there shall be a controversy which is wholly between citizens of different States, and which can be fully determined as between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit into the circuit court of the United States for the proper district. Proceeding's to procure renioval. Sec. 3. That whenever either party, or any one or more of the plaintiffs or defendants entitled to remove any suit mentioned in the next preceding section shall desire to remove such suit from a State court to the circuit court of the United States, he or they may make and file a petition in such suit in such State court before or at the term at which said cause could be first tried and before the trial thereof for the removal of such suit into the circuit court to be held in the district where such suit is pend- ing, and shall make and file therewith a bond, with good and sufficient surety, for his or their entering in such circuit court, on the first day of its then next session, a copy of the record in such suit, and for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully or improperly removed thereto, and also for there appearing and entering special bail in such suit, if special bail was originally requisite therein, it shall then be the duty of the State court to accept said petition and bond, and proceed no further in such suit, and any bail that may have been originally taken shall be discharged ; and the said copy being entered as aforesaid in said circuit court of the United States, the cause shall then proceed in the same manner as if it had-been originally commenced in the said circuit- court ; and if in any action commenced in a State court the title of land be conceftied, and the parties are citizens of the same State, and the matter in dispute exceed the sum or value of five hundred dollars, exclusive of costs, the sum or value being made to appear, one or more of the plaintiffs or defendants, before the trial, may state to the court, and make affidavit, if the court requii-e it, that he or they claim and shall rely upon a right or title to the land under a grant from a State, and produce the original grant, or an exemplification of it, except where the loss of public records shall put it out of his or their power and shall move that any one or more of the adverse party inform the court whether he or they claim a right or title to the land under a grant from some other State, the party or parties so required shall give such information, or otherwise not be allowed to plead such grant, or give it in evidence upon the trial ; and if he or they inform that he or they do claim under such grant, any one or more of the party moving for such information may then, on petition and bond as hereinbefore mentioned in this act, remove the cause for trial to the circuit court of the United States next to be holden in such district- and STATUTES OF PRACTICAL UTILITY. xxxv any one of either party removing the cause shall not be allowed to plead or give evidence of any other title than that by him or them stated as aforesaid as the ground of his or their claim, and the trial of issues of fact in the circuit courts shall, in all suits except those of equity and admiralty and maritime jurisdiction, be by jury. Continuation of att^ichments, bonds, injunctions, &c. Sec. 4. That when any suit shall be removed from a State court to a circuit court of the United States, any attachment or sequestration of the goods or estate of the defendant had in such suit in the State court shall hold the goods or estate so attached or sequestered to answer the final judgment or decree in the same manner as by law tliey would have been held to answer final judgment or decree had it been rendered by the court in which such suit was commenced; and all bonds, undertakings, or security given by either party in such suit prior to its removal «ball remain valid and eSectual, notwithstanding said removal; and all in- junctions, orders, and other proceedings had in such suit prior to its removal «hall remain in full force and effect until dissolved or modified by the court to which such suit shall be removed. * Dismissal or remanding, by circuit court, of causes iin- [* 18 5., p. 473.] properly removed. Sec. 5. If, in any suit commenced in a cir- cuit court or removed from a State court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction •of said circuit court, or that the parties to said suit have been improperly or collusively made or joined, either as plaintiflEs or defendants for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed as justice may require, and shall make such order as to costs as shall be just; but the order of said -circuit court dismissing or remanding said cause to the State court shall be reviewable by the Supreme Court on writ of error or appeal, as the case may be. Circuit court, liow to proceed. Sec. 6. That the circuit court of the United States shall, in all suits removed under the provisions of this act, proceed therein as if the suit had been originally commenced in said circuit court, and the same proceedings had been taken in such suit in said circuit court as shall have been had therein in said State court prior to its removal. Filing record in circuit court. Sec. 7. That in all causes removable under this act, if the teim of the circuit court to which the same is removable, then next to be holden, shall commence within twenty days after filing the petition and bond in the State court for its removal, then he or they who apply to remove the same shall have twenty days from such application to file said copy of record in said circuit court, and enter appearance therein; and if done within said twenty days, such filing and appearance shall be taken to satisfy the said bond in that behalf; that if the clerk of the State court in which any such cause shall be pending, shall refuse to any one or more of the parties or persons applying to remove tlie same, a copy of the record therein, after tender of legal' fees fur such copy, said clerk so ofEending shall be deemed guilty of a xxxvi THE ENACTMENTS. misdemeanor, and, on conviction thereof in the circuit court of the United States to which said action, or proceeding was removed, shall be punished by imprisonment not more than one year, or by fine not exceeding one thousand dollars, or both in the discretion of the court. And the circuit court to which any cause, shall be rismovable under this act shall have power to issue a writ of certioraii to said State court commanding said State court to make return of the record in any such cause removed as aforesaid, or in which any one or more of the plaintiffs or defendants have complied with the provisions of this act for the- removal of the same, and enforce said writ according to law; and if it shall be- impossible for the parties or persons removing any cause under this act, or com- plying with the provisions for the removal thereof, to obtain such copy, for the- reason that the clerk of said State court refuses to furnish a copy, on payment of legal fees, or for any other reason, the circuit court shall make an order requir- ing the prosecutor in any such action or proceeding to enforce forfeiture or recover penalty as aforesaid, to file a copy of the paper or proceeding by which the same was commenced, within such time as the court may determine; and in default thereof the court shall dismiss the said action or proceeding; but if said order shall be complied with, then said circuit-court shall require the other party to- plead, and said action, or proceeding shall proceed to final judgment; and the said circuit court may make an order requiring the parties thereto to plead de novo; and the bond given, conditioned as aforesaid, shall be discharged so far as it requires copy of the record to be filed as aforesaid. How absent defendants brought in in suits to enforce or remove liens, &c., on property. Sec. 8. That when in any suit, commenced in any circuit court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the^ defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answi^r, or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, where,ver found, and also upon person or persons in possession or charge of said property,, if any there be ; or where such personal service upon such absent defendant or defendants is not practical, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks ; and in case such absent defendant shall not appear, plead, answer, or demur within the time so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, aSeot only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district. And when a part of the said real or personal property against which such proceeding shall be taken shall be within another district, but -within the same State, said suit may be brought in either district in said State ; Provided, however, That any STATUTES OF PRACTICAL UTILITY, xxxvii ■defendant or defendants not actually personally notified as above provided majj at any time within one year after final judgment in any suit mentioned in this section, enter his appearance in said suit in said circuit court, and there- upon the said court shall make an order setting aside the judgment therein, and permitting said defendant -or defendants to plead therein on payment by him or them of such costs as the court shall deem just; and thereupon said suit shall be proceeded with to final judgment according to law. Proceedings on death of party. Skc. 9. Whenever either party to a final judgment or decree which has been or shall be rendered in any circuit court has died or shall die before the time allowed for taking an appeal or bringing a writ of error has expired, it shall not be necessary to revive the suit by any formal proceedings aforesaid. The representative of such deceased party may file in the office of the clerk of such circuit court a duly certified copy of his appointment and thereupon may enter an appeal or bring writ of error as the party he represents might have done. If the party in whose favor such judg- ment or decree is rendered has died before appeal taken or writ of error brought, notice to his representatives shall be given from the Supreme Court, as provided in case of the death of a party after appeal taken or writ of error brought. Repeal. Skc. 10. All acts and parts of acts in conflict with the provisions ■of this act are hereby repealed. ACT OP JUNE 22, 1874. FORTY-THIRD CONGRESS, FIRST SESSION, CH. 401, 18 Stat, at L., 195. * [18 S., p. 195.] *An act relating to circuit courts of the United States for the districts of Alabama, Circuit Courts established in Alabama. Sec. 1. There sliall be, and is hereby, established a circuit court of the United States for the middle district of Alabama, as said district is now constituted by law, to be held in the city of Montgomery, and a like court for the northern district of Alabama, as said dis- trict is now constituted by law, to be held in the city of Huntsville. Powers and jurisdiction. Sec. 2. Said circuit court shall have and exer- cise within their respective districts, the same original powers and jurisdiction as are or may be conferred by law upon the circuit court of the United States for the southern district of Alabama at Mobile, and shall have and exercise appellate and revisory jurisdiction over the decrees and judgments of the dis- trict courts of the United States for the said middle and northern districts, respectively, under the laws of the United States regulating the jurisdiction, powers, and practice of the circuit courts, and the judges thereof, in cases removed into said courts by appeal or writ of error; and said courts, and the judges thereof, shall. have the general superintendence and jurisdiction over all cases and questions arising in said district courts, respectively, under the act approved March second, eighteen hundred and sixty-seven entitled "An act to establish a uniform system of bankruptcy throughout the United States " as is provided for in the second section of said act. xxxviii THE ENACTMENTS. Sec. 3. [Prescribes appointment of clerks, and duties of clerks, district- attorneys and marshals.] Sec. 4. [Directs transfer of records and papers in pending causes.] Sec. 5. [Restricts jurisdiction of the circuit court for the southern dis- trict.] Sec. 6. [Designates times of holding the circuit and district courts.] Sec. 7, 8. [Repeal previous laws.] [*iJ. &, p. 119.] * CHAPTER EIGHT. CIECUIT COTTRTS SESSIONS Terms. Sec. 658. The regular terms of the circuit courts shall be held in each year, at the times and places following ; but when any of said dates shall fall on Sunday, the term shall commence on the following day : In and for the southern district of Alabama, at Mobile, on the [second Monday in April and the fourth Monday in December] fourth Monday of December and tne first Monday of June in each yea/r ; for the middle district, on the first Monday of May and the flr.st Monday of November in each year ; for the northern district, on the first Monday of April and the second Monday of October in each year.' In and for the eastern district of Arkansas, at Little Rock, on the second Monday in April and the fourth Monday in October. In the district of California, at San Francisco, on the first Monday in. February, the second Monday in [June] July [and the first Monday in October] fourth Monday of November!' In the district of Connecticut, at New Haven, on the fourth Tuesday in April ; and at Hartford, on the third Tuesday in September. In the district of Delaware, at Wilmington, on the third Tuesdays in June and October. In the southern district of Florida, at Key West, on the first Mondays in May and November. In the northern district of Florida, at Tallahassee, on the first Monday in February ; at Pensacola, on the first Monday in March ; and at Jacksonville, on the first Monday in December. [* B. S., p. 130. j * In the southern district of Georgia, at Savannah, on th& second Monday in April ; and on the Thursday after the first Monday in November. In the northern district of Georgia, at Atlanta, on the second Mondays in March and September. In the northern district of Illinois,, at Chicago, on the first Monday in July and the third Monday in December. In the southern district of Illinois, at Springfield, on the first Mondays in January and June. In the district of Indiana, at Indianapolis, on the first Tuesday in May and November ; and at New Albany, on the first Monday in January and July ; 'As appointed by act of June 23, Feb. 18, 1876, § 1, 19 8tat. atL., which 1874, ch. 401, § 6, 18 Stat, at L., 195. supersedes act of June 16, 1874, ch. ^ The changes are made by act of 387, 18 Stat, at L., 76. STATUTES OF PRACTICAL UTILITY, xxxix and at Evansville, on the first Monday in [February and August] April and October. ' In the district of Iowa, at Des Moines, on the second Mondays in May and October. ' In the district of Kansas, at Leavenworth, on the first Monday in June ; and at the seat of government of the State, on the fourth Monday in November. In the district of Kentucky, at Covington, on the third Monday in April and the first Monday in December ; at Louisville, on the third Monday in February and the first Monday in October ; at Frankfort, on the third Monday in May and the first Monday in January ; and at Paducah, on the third Monday in March and the first Monday in November. In the district of Louisiana, at New Orleans, on the fourth Monday in April and the first Monday in November. In the district of Maine, at Portland, on the twenty-third days of April and September. In the district of Maryland, at Baltimore, on the first Mondays in April and November. In the district of Massachusetts, at Boston, on the fifteenth days of May and October. In the eastern district of Michigan, at Detroit, on the first Tuesdays in March, June, and November. In the -western district of Michigan, at Grand Bapids, on the third Mon- days in May and October. In the district of Minnesota, at Saint Paul, on the third Monday in June and the second Monday in December. In the southern district of Mississippi, at Jackson, on the first Mondays in May and November. In the eastern district of Missouri, at Saint Louis, on the third Mondays in March and September. In the western district of Missouri, at Jeflferson, on the third Mondays in April and November. *In the district of Nebraska, at Omaha, on the first [*ij. 8., p. 131.] Monday in May and the second Monday in. November. In the district of Nevada, at Carson City, on the [first Mondays in March, August, and December,] third Monday ofMa/rch and the first Monday of November.'' In the district of New Hampshire, at Portsmouth, on the eighth day of May ; and at Exeter on the eighth day of October, In the district of New Jersey, at Trenton, on the fourth Tuesdays in March and September. In the northern district of New York, at Canandaigua, on the third Tuesday in June; at Albany on the second Tuesday in October; and when the term appointed to be held at Albany is adjourned, it shall be adjourned to meet at the same place on the third Tuesday in January ; and when said "As changed by act of June 23, Feb. 18, 1876, § 1, 19 Stat, at L., 1874, § J., 18 Stat, at L., 251. which superseded act of June 16, ' These changes are made by act of 1874, ch. 387, 18 Stat, at L., 76. xl THE ENACTMENTS. ' adjourned term is adjourned it shall be adjourned to meet in TJtica on the third Tuesday in March. The said adjourned terms shall be held for the transaction of civil business only. In the southern district of New York, at the city of New York, on the first Monday in April and the third Monday in October: and for the trial of crimi- nal causes and suits in equity, on the last Monday in Februnry; and exclu- sively for the trial and disposal of criminal cases, and ujatters arising and pending in said court, on the second Wednesday in .Tanuaiy, March, and May, on the third Wednesday in June, and on the second Wednesday in October and December: Provided, That the holding of any of the last-mentioned terms for criminal business shall not dispense vrith nor affect the holding of any other term of the court at the same time, and that the pending of any other term of the court shall not prevent the holding of any of the said terms for criminal business. In the eastern district of New York, at Brooklyn, on the first Wednesday in every month. In the eastern district of North Carolina, at Ealeigh, on the first Monday in June and the last Monday in November. In the Western district of North Carolina, at Greensborough, on the first Mondays in April and October; at Statesville, on the third Mondays in April and October; and at Asheville, on the first Mondays in May and November. In the northern district of Ohio, at Cleveland, on the first Tuesdays in January, April, and October. In the southern district of Ohio, at Cincinnati, on the first Tuesdays in February, April, and October. In the district of Oregon, at Portland, on the [first Mondays in January, May, and September] second Monday of April and the first Monday of Octoher. ' In the eastern district of Pennsylvania, at Philadelphia, on the first Mon- days in April and October. In the western district of Pennsylvania, at Erie, on the second Monday in January and third Monday in July; at Pittsburgh, on the second Mondays in May and November; and at Williamsport, on the third Mondays in June and September. In the district of Rhode Island, at Providence, on the fifteenth days of June and November. [* B. S., p. 133.] * In the district of South Carolina, at Charleston, on the first Monday in April ; and at Columbia, on the fourth Mon- day in November. In the eastern district of Tennessee, at Knoxville, on the second Mondays in January and July. In the middle district of Tennessee, at Nashville, on the third Mondays in April and October. In the western district of Tennessee, at Memphis, on the fourth Mondays in May and November. In the eastern district of Texas, at Brownsville, on the first Moudaysin March and October; and at Galveston, on the first Mondays in May and December. ' These changes are made by act of which superseded act of June 16, Feb. 18, 187(3, § !, 19 Stat, at Z., 1874, ch. 387, 18 Stat, at L , 76. STATUTES OF PRACTICAL UTILITY. xli In the western district of Texas, at Austin, on the first Mondays in January -and June; and at Tyler, on the fourth Monday in April and the first Monday in November. In the district of Vermont, at Burlington, on the fourth Tuesday in Feb- ruary; at Windsor, on the [fourth Tuesday in July;] third, Tuesday in May and ^t Butland, on the [third day ot\JvrBt Tuesday in ' October. In the eastern district of Virginia, at Richmond, on the first Monday in April and October; at Alexandria, on the first Monday in January and July; and at Norfolk, on the first Monday in May and November. In the western district of Virginia, at Danville, on the Tuesday after the fourth Monday in February and August ; at Lynchburgh, on the Tuesday after the third Monday in March and September; at Harrisonburgh, on the Tuesday after the first Monday in May and the Tuesday after the second Monday in October; and at Abingdon, on the Tuesday after the fourth Monday in JMay and October. In the district of West Virginia, at Parkersburgh, on the first Monday in August. In the eastern district of Wisconsin, at Oahkosh, on the [first Monday in] ■second Tuesday of July; and at Milwaukee, on the first Monday in January and October. In the western district of Wisconsin, at Madison, on the first Monday in June; and at La Crosse, on the third Tuesday in September. Kecognizances to a certain term in southern district of New York. Sbc. •659. All recognizances and bail-bonds taken in criminal cases for an appear- ance at a circuit court in the southern district of New York, conditioned upon an appearance at the next one of the terms appointed by the act of February seven, eighteen hundred and seventy-three, shall be valid. Effect of altering terms of circuit courts. Sec. 660. No action, suit, pro- ceeding, or process in any circuit court shall abate or be rendered invalid ,by reason of any act changing the time of holding such court; but the same shall be deemed to be returnable to, pending, and triable in the terms established, next after the return day thereof. Special sessions for trial of criminal causes. Sec. 661. Any circuit court may, at its own discretion, or at the discretion of the Supreme Court, hold special sessions for the trial of criminal causes. Special sessions for criminal trials near the place of the offense. Sec. 663. The Supreme Court, or, when that court is not sitting, any circuit justice or circuit judge, together with the judge of the proper district, may direct special sessions of a circuit court to be held, for the trial of criminal causes, at any convenient place within the district * nearer to the place where the oflenses are said to be committed than the [* B. S., p. 133.] place appointed by law for the stated sessions. The clerk of such court shall, at least thirty days before the commencement of such special session, cause the time and place for holding it to be notified, for at least tliree weeks, consecutively^ in one or more of the newspapers published ' The changes in this paragraph are * As changed by act of June 16, made by act of June 5, 1874, 18 8tat. 1874, § 1, 18 Stal. at L., 75. at L., 53. xlii THE ENACTMENTS. nearest to the place where it is to be held. All process, writs, and recognizan- ces respecting juries, witnessses, bail, or otherwise, which relate to the cases to be tried at such special sessions, shall be considered as belonging to such sessions, in the same manner as if they had been issued or taken in reference thereto. Any such session may be adjourned from time to time to any time previous to the next stated term of the court ; and all business depending for trial at any special session shall, at the close thereof, be considered as removed to the next stated term. Sec. 663 670. [Authorize and regulate holding adjourned terms and special sessions of the circuit courts, in particular districts, viz., those of Missouri,. California, Oregon, Nevada, Kentucky, Indiana, Tennessee, North Carolina, Virginia, Wisconsin.] [* J?. 8., p. 124.] * Adjonrnmeut in absence of the Judges. Sec. 671. If neither of the judges of a circuit court is present to open any session, the marshal may adjourn the court from day to day until a judge is present: Provided^ That if neither of them attends before the close of the fourth day after the time appointed for the commencement of the session, the marshal may adjourn the court to the nest regular term. Sec. 672. If neither of the judges of a circuit court be present to open and adjourn any regular or adjourned or special session, either of them may, by a written order, directed alternately to the marshal, and, in his absence, to the clerk, adjourn the court from time to time, as the case may require, to any time before the next regular term. CHAPTER NINE. SUPREME COURT — ORGANIZATION. Number of Justices. Sec. 673. The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum. Precedence of the associate Justices. Sec 674. The associate justices shall have precedence according to the dace of their commissions, or when the com- missions of two or more of them bear the same dale, according to their ages. Tacancy In the olHce of Chief Justice. Sec. 675. In case of a vacancy in the office of Chief Justice, or of his inability to perform the duties and powers of his office, they shall devolve upon the associate justice who is first in precedence, until such disability is removed, or another Chief Justice is appointed, and duly qualified. This provision shall apply to every associate justice who succeeds to the office of Chief Justice. [*J?. a., p. 125.] Salaries of Judges. * Sec. 676. The Chief Justice of the United States shall receive the sum of ten thousand five hun- dred dollars a year, and the justices thereof shall receive the sum of ten thousand dollars a year each, to be paid monthly. Clerk, marshal, and reporter. Sec. 677. The Supreme Court shall have power to appoint a clerk and a marshal for said court, and a reporter of its decisions. Deputies of the clerk. Sec. 678. One or more deputies of the clerk of the Supreme Court may be appointed by the court on the application of the clerk, and may be removed at the pleasure of the court. In case of the death of the STATUTES OF PRACTICAL UTILITY. xliii clerk, his deputy or deputies shall, unless removed, continue in office and per- form the duties of the clerk in his name until a clerk is appointed and quali- fied ; and for the defaults or misfeasances in office of any such deputy, whether in the lifetime of the clerk or after his death, the clerk, and his estate, and the sureties in his official bond shall be liable ; and his executor or administrator shall have such remedy for any such defaults or misfeasances committed after his death as the clerk would be entitled to if the same had occurred in his life- time. Bbc. 679. [Provides for keeping the records of the old court of ap- peals.] Marshal of the Supreme Court. Sbc. 680. The marshal is entitled to- receive a salary at the rate of three thousand five hundred dollars a year. He shall attend the court at its sessions; shall serve and execute all process and orders issuing from it, or made by the Chief Justice or an associate justice, in pursuance of law; and shall take charge of all property of the United States, used by the court or its members. "With the approval of the Chief Justice he may appoint assistants and messengers to attend the court, with the compensation allowed to officers of the House of Bepresentativea of simi- lar grade. Sbc. 681. [Provides for the publication and distribution of reports of the decisions; the reporter's salary, &c., and restricts the price of the reports to the public, to five dollars a volume.] * CHAPTER TEN. [* B. S., p. 136.] STJPKBME COURT — SESSIONS. Terms. Sbc. 684. The Supreme Court shall hold, at the seat of Govern- ment, one term annually, commencing on the second Monday in October, and such adjourned or special terms as it may find necessary for the dispatch of business; and suits, proceedings, recognizances, and processes pending in or returnable to said court shall be tried, heard, and proceeded with as it the time of holding said sessions had not been hereby altered. Sec. 685, 686. [Authorize adjournments for want of a quorum, and prepar- atory orders by less than a quorum.] * CHAPTER ELEVEN. [* S. S., p. 127.] SUPBBME GOUBT — JTTKISDICTION. Original jurisdiction. Sbo. 687. The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, or between a State and citizens of other States, or aliens, in which latter cases it shall have original, but not exclusive jurisdiction. And it shall have exclusively all such jurisdiction of suits or pro- ceedings against embassadors, or other public ministers, or their domestics, or domestic servants, as a cojirt of law can have consistently with the law of nations; and original, but not exclusive, jurisdiction of all suits brought by embassadors, or other public ministers, or in which a consul or vice-consul is a party. Writs of prohibition and mandamus. Sec. 688. The Supreme Court shall have power to issue writs of prohibition to the district courts, when proceed- xliv THE ENACTMENTS. ing as courts of admiralty and maritime jurisdiction ; and writs of mandamus, in cases ■warranted by the principles and usages of law, to any courts appointed Tinder the authority of the United States, or to persons holding ofBce under the authority of the United States, where a State, or an embassador, or other public minister, or a consul or vice-consul is a party. [* B. S., p. 128.] * Issues of fact. Sec. 689. The trial of issues of fact in the Supreme Court, in all actions at law against citizens of the United States, shall be by jury. Appellate jurisdiction. Bbc. 690. The Supreme Court shall have appellate jurisdiction in the cases hereinafter specially provided for. Judgments in circuit court, on writ of error. &ec. 691. All final judg- ments of any circuit court, or of any district court acting as a circuit court, in <:ivil actions, brought there by original process, or removed there from courts of the several States, and all final judgments of any circuit court in civil actions removed there from any district court by appeal or writ of error, where the matter in dispute, exclusive of costs, exceeds the sum or value of [two] '_/?»« thousand dollars, may be re-examined and reversed or affirmed in the Supreme Court, upon a writ of error. Appeals in equity and admiralty cases. Sec. 693. An appeal shall be allowed to the Supreme Court from all final decrees of any circuit court, or of any dis- trict court acting as a circuit court, in cases of equity, and of admiralty arid maritime jurisdiction, where the matter in dispute, exclusive of costs, exceeds the sum or value of [two] ' ^e thousand dollars, and the Supreme Court is Required to receive, hear, and determine such appeals, f*^. 8., p. 139.] EevieTV of decisions of circuit court on certificate of division of opinion. * Sec. 693. Any final judgment or decree, in any civil suit or proceeding before a circuit court which was held, at the time, by a eiicuit justice and a circuit judge or a district judge, or by the circuit judge and a district judge, wherein the said judges certify as provided by law, that their opinions were opposed upon any question which occurred on the trial or hearing of the said suit or proceeding, may be reviewed and aflarmed or reversed or modified by the Supreme Court, on writ of error or appeal, according to the nature of the case, and subject to the provisions of law applicable to other writs of error or appeals in regard to bail and super- sedeas." Bbc. 694. [Belates to old appeals from middle and northern districts of Alabama.] Appeals in prize causes. Sec. 695. An appeal shall be allowed to the Supreme Court from all final decrees of any district court in prize causes, where the matter in dispute, exclusive of costs, exceeds the sum or value of [two] Jipo thousand dollars; and shall be allowed, without reference to the value of the matter in dispute, on the certificate of the district judge that the adjudication involves a question of general importance. And the Supreme Court shall receive, hear, and determine such appeals and shall always be open for the entry thereof. ' This change is made by act of ' See § 653. Feb. 16, 1875, ch. 77, § 3, 18 Stat, at ' See ante, p. , note ( X., 816; given upon p. , ante. STATUTES OF PRACTICAL UTILITY. xlv Appe.ils in prize canses remaining in circuit courts. Sec. 696. An appeal shall be allowed to the Supreme Court from all final decrees- of any circuit court in prize causes depending therein on the thirtieth day of ' June, eighteen hundred and sixty-four, in the same manner, and subject to the same conditions as appeals in prize causes from the district courts. Points certified on division of opinion in a circuit court. Sec. 697. When any question occurs on the hearing or trial of any criminal proceeding before- a circuit court, upon which the judges are divided in opinion, and the point upon which they' disagree is certified to the Supreme Court according to law, such point shall be finally decided by the Supreme Court; and its decision and order in the premises shall be remitted to such circuit court, and be there entered of record, and shall have effect according to the nature of the said judgment and order. Transcripts on appeals. * Sec. 698. TTpon the appeal of [* iJ. 5., p. 130.} any cause in equity, or of admiralty and maritime jurisdic- tion, or of prize or no prize, a transcript of the record, as directed by law to be made, and copies of the proofs, and of such entries and papers on file as may be necessary on the hearing of the appeal, shall be transmitted to the Supreme Court: Provided, That either the court below or the Supreme Court may order any original document or other evidence to be sent up, in addition to the copy of the record, or in lieu of a copy of a part thereof. And on such appeals no new evidence shall be received in the Supreme Court, except in admiralty and prize causes. Writs of error and appeals, without reference to amount. Seo. 699. A writ of error may be allowed to review any final judgment at law, and an appeal shall be allowed from any final decree in equity hereinafter mentioned, without regard to the sum or value in dispute : First. Any final judgment at law or final decree in equity of any circuit court, or of any district court acting as a circuit court, or of the supreme court of the District of Columbia, or of any Territory, in any case touching patent-rights or copyrights. Second. Any final judgment of a circuit court, or of any district court. act- ing as a circuit court, in any civil action brought by the United States for the enforcement of any revenue law thereof. Third. Any final judgment of a circuit court, or of any district court acting as a circuit court, in any civil action against any officer of the revenue for any act done by him in the performance of his official duty, or for the recovery of any money exacted by or paid to him which shall have been paid into the Treasury. Fourth. Any final judgment at law or final decree in equity of any circuit court, or of any district court acting as a circuit court, in any case brouglit on account of the deprivation of any right, privilege, or immunity secured by the Constitution of the United States, or of any right or privilege of a citizen of the United States. Fifth. Any final judgment of a circuit court, or of any district court acting as a circuit court, in any civil action brought by any person on account of injury to his person or property by any act done in furtherance of any con- xlvi THE ENACTMENTS. ^piracy mentioned in section nineteen hundred and eighty, Title " CrvTL Eights." ' Cases tried by the circuit conrt without the iiiteryention of a jury. Sec. 700. When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-mine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time, and duly presented by a bill of exceptions, may be reviewed by the Supreme Court upon a writ of error or upon appeal; and when the finding is special the review may extend to the determination ot the sufficiency of the facts found to support the judgment." Judgment or decree on review. * Sec. 701. The Supreme [* JJ. yS., p. 131.] Court may affirm, modify, or reverse any judgment, decree, or order of a circuit court, or district court acting as a circuit court;, or of a district court in prize causes, lawfully brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court, as the justice of the case may lequire. The Supreme Court shall not issue execution in a cause removed before it from such courts, but shall send a special mandate to the inferior •court to award execution thereupon. Writs of error and appeals from territorial courts. Sec. 703. The final judgments and decrees of the Supreme Court of any Territory, except the Territory of Washington, in cases where the value of the matter in dispute, exclusive of costs, to be ascertained by the oath of either party, or of other com- petent witnesses, exceeds one thousand dollars, may be reviewed and reversed or affirmed in the Supreme Court, upon writ of error or appeal, in the same manner and under the same regulations as the final judgments and decrees of a circuit court. In the Territory of Washington the value of the matter in dispute must exceed two thousand dollars, exclusive of costs. And any final judgment or decree of the Supreme Court of said Territory in any cause' the Constitution or a statute or treaty of the United States is brought in question may be reviewed in like manner. When a Territory becomes a State after judgment or decree in territorial court. Sec. 703. In all cases where the judgment or decree of any court of a Territory might be reviewed by the Supreme Court on writ of error or appeal, such writ of error or appeal may be taken within the time and in the manner provided by law, notwithstanding such Territory has, after such judgment or decree, been admitted as a State ; and the Supreme Court shall direct the man- date to such court as the nature of the writ of error or appeal requires. Judgments and decrees of district courts in cases transferred from terri- torial courts. Sec. 704. The judgments or decrees of any district court, in cases transferred to it from the superior court of any Territory, upon the admission of such Territory as a State, under sections five hundred aud sixty- seven and five hundred and sixty-eight, may be reviewed and reversed or affirmed upon writs of error sued out of, or appeals taken to, the Supreme ' Also, cases arising under the civil troversy; by section 5, of that act; rights act of March 1, 1875, are 18 Stnt. at £., 337. reviewable in the Supreme court, ' See § 64y. without regard to the amount in con- ' The word «iA«»'e omitted in the Roll. STATUTES OF PRACTICAL UTILITY. xlvii -Court, in the same manner as if such judgments or decress had been rendered in said superior court of such Territory. And the mandates and all writs necessary to the exercise of the appellate jurisdiction of the Supreme Court in such cases shall be directed to such district court, which shall cause the same to be duly executed and obeyed.' Jiidg'meiits and decrees of supreme court of District of [* R. S., p. 133.] Columbia. Sec. 705. The final judgment or decree of the supreme court of the District of, Columbia, in any case where the matter in dispute, exclusive of costs, exceeds the value of one thousand dollars, may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon writ of error or appeal, in the same manner and under the same regulations as are provided in cases of writs of error on judgments, or appeals ' from decrees rendered in a circuit court. Cases where matter in dispute exceeds $100. Sec. 706. The writ of error or appeal provided by the preceding section may be allowed in any case where the value of the matter in dispute, exclusive of costs, is less than one thousand dollars, but more than one hundred dollars, upon the petition in writing of -either party, accompanied by a copy of the proceedings complained of, and an assignment of errors, exhibited to any justice of the Supreme Court, if said justice is of opinion that such errors involve questions of law of such extensive operation as to render a decision of them by the Supreme Court desirable. The allowance in such case shall be by the written order of said justice, directed to the clerk of the supreme court of said District, to allow the appeal or issue the writ of error. Appeals from the Court of Claims. Sec. 707. An appeal to the Supreme Court shall be allowed, on behalf of the United States, from all judgments of the Court of Claims adverse to the United States, and on behalf of the plaintiff in any case where the amount in controversy exceeds three thousand dollars, or where his claim is forfeited to the United States by the judgment of said ■court, as provided in section one thousand and eighty-nine. Time and manner of appeals from the Court of Claims. Sec. 708. All appeals from the Court of Claims shall be taken within ninety days after the judgment is rendered, and shall be allowed under such regulations as the Supreme Court may direct. Judgments and decrees of State courts on writs of error. Sec. 709. A final judgment or decree in any suit in the highest court of a State, in which a •decision in the suit could be had, where is 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; 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, treaties, or laws of the United States, and the decision is in favor of their validity ; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or com- mission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed, by ■either party, under such Constitution, treaty, statute, commission, or authority, ' See sections 567, 569. xlviii THE ENTCTMENTS. may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error. The writ shall have the same effect as if the judgment or decree com- plained of had been rendered or passed in a court of the United States ; [and the- proceeding upon the reversal shall be the same, except that the Supreme Court, may, at their discretion, proceed to a final decision of the case, and award execution, or remand the same to the court from which it was so removed].' The Sapreme Court may [reaffirm,] ' reverse, modify, or affirm the judg- ment or decree of such State court, and may, at their discretion, award execu- tion, or remand the same to the court from which it was removed by the writ. [*-B. 8., p. 133.] * Precedence of writs of error to State conrts in crimi- nal cases. Sec. 710. Cases on writ of error, to revise the- judgment of a State court in any criminal case, shall have precedence, on the docket of the Supreme Court, of all cases to which the Government of the United States is not a party, excepting only such cases as the court, in its discretion, may decide to be o£ public importance. [*.B. &, p. 18i.] * CHAPTER TWELVE. PROVISIONS COMMON TO MOKE THAN ONE COURT OR JUDGE. Exclusive jurisdiction of courts of United States. Sec. 711. The jurisdic- tion vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: First. Of all crimes and offenses cognizable under the authority of thfr United States. Second. Of all suits for penalties and forfeitures incurred under the laws of the United States. Third. Of all civil causes of admiralty and maritime jurisdiction; saving to suitors, in all cases, the right of a common-law remedy, wbere the common law is competent to give it. Fourth. Of all seizures under the laws of the United States, on land or on waters not within admiralty and maritime jurisdiction. [* B. 8., p. 135.] * Fifth. Of all cases arising under the patent-right or copyright laws of the United States. Sixth. Of all matters and proceedings in bankruptcy. Seventh. Of all controversies of a civil nature, where a State is a party, ex- cept between a State and its citizens, or between a State and citizens of other States, or aliens. [Eighth. Of all suits or proceedings against embassadors, or other public ministers, or their domestics, or domestic servants, or against consuls or vice consuls.]" Sec. 713-714. [Prescribes official oath of United States judges; prohibits- their practicing law; and authorizes them, in certain cases, to resign on a con- tinuance of salary.] ' The words in brackets were ' Paragraph eight, mentioning suits stricken out by way of amendment, against foreign ministers, and their by act of Feb 18, 1875, 18 Stat, at L., servants, and consuls, was stricken out 818. by act of Feb. 18, 1875, 18 Stat, at L., 318. STATUTES OF PRACTICAL UTILITY. xlix Sec. 715. [Prescribes appointment and compensation of criers and atten- dants for the courts.] Power to issue writs. Sec. 716. The, Supreme Court and the circuit and district courts shall have power to issue writs of scire facias. They shall also have power to issue all writs not speciQcally provided for by statute, which may be necessary for the exercise of their respective Jurisdictions, and agreea- ble to the usages and principles of law. Writs of ne exeat. Sbc. 717. Writs of ne exeat maybe [* ^. 8., p. 136.] granted by any justice of the Supreme Court, in cases where they might be granted by the Supreme Court; and by any circuit jus- tice or circuit judge, in cases where they might be granted by the circuit court of which he is a judge. But no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States. TemporiU'f restraining orders. Sec. 718. Whenever notice is given of a motion for an injunction out of a circuit or district court, the court or judge thereof may, if there appears to be danger of irreparable injury from delay, grant an order restraining the act sought to be enjoined until the decision upon the motion; and such order may be granted with or without security, in the discretion of the court or judge. Injunctions. Sec. 719. Writs of injunction may be granted by any jus- tice of the Supreme Court in cases where they might be granted by the Supreme Court; and by any judge of a circuit court in cases where they might be granted by such court. But no justice of the Supreme Court shall hear or allow any application for an injunction, or restraining order in any cause pend- ing in the circuit to which he is allotted, elsewhere than within such circuit, or at such place outside of the same as the parties may stipulate in writing, except when it cannot be heard by the circuit judge of the circuit or the district judge of the district. And an injunction shall not be issued by a district judge, as one of the judges of a circuit court, in any case where a party has had a reasonable time to apply to the circuit court for a writ ; nor shall any injunction so issued by a district judge continue longer than to the circuit court next ensuing, unless so ordered by the circuit court. Injanctioii to stay proceedings in State courts. Sec. 730. The writ of injunction shall not be granted by any court of the United States to stay pro- ceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy. Laws of the States, rules of decision. Sec. 731. The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply. Proceedings in violation of civil rights. Sec. 733. The jurisdiction in civil and criminal matters conferred on the district and circuit courts by the provisions of this Title, and of Title "Civil Rights," and of Title " Crimes," for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United ' States, so far [* iS. 5., p. 137.] as such laws are suitable to carry the same into effect; but Vol. I.— D 1 THE ENACTMENTS. in all cases where they are not adapted to the object, or are deficient in tho provisions necessary to furnish suitable remedies and punish, oifenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty. When suits of equity may be maintained. Sec. 723. Suits in equity shall not be sustained in either of the courts of the United States in any case where a plain, adequate, and complete remedy may be had at law. Power to order production of books and writings in actions at law. Sbc. 734. In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to pro- duce the same by the ordinary rules of proceeding in chancery. If a plaintifi fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if a defendant fails to comply with such order, the court may, on motion, give judgment against him by default. Power to impose oaths and punish contempts. Skc. 725. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not be con- strued to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, wit- ness, or other person, to any lawful writ, process, order, rule, decree, or com- mand of the said courts. Sew trials. Sec. 736. All of the said courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. * Power to Iiold to security for the peace and good behavior. Sec. 737. The judges of the Supreme Court and of the circuit and district courts, the com- missioners of the circuit courts, and the judges and other magistrates of the several States, who are or may be authorized by law to make arrests for oflEenses against the United States, shall have the like authority to hold to security of the peace, and for good behavior, in cases arising under the Con- stitution and laws of the United States, as may be lawfully exercised by any judge or justice of the peace of the respective States, in cases cognizable before them. [* R. S., p. 138.] * Seo. 738. [Confers on the district and circuit courts, and the commissioners of the circuit courts, the power to enforce awards, &c., of consular officers of foreign nations, in controversies between captains and crews of vessels belonging to their respective nations.] Offenses punishable with death, where tried. Sec. 739. The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience. STATUTES OF PRACTICAL UTILITY. \\ Offenses on the high seas, &c., where triable. Sec. 730. The trial of all •offenses committed upon the high seas or elsewhere, out of the iurisdietion of ^tiy particular State or district, shall be in the district where the offender is found, or into which he is first brought. Offenses begun in one district and completed in another. When any offense against the United States is begun in one judicial district and com- pleted in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, determined, and punished in either district, in the same manner as if it had been actually and wholly committed therein Suits for pecuniary penalties and forfeitures, where to be brought. 'Sec. 733. AH pecuniary penalties and forfeitures may be sued for and recovered either in the district where they accrue or in the district where the ■offender is found. Suits for internal-revenue taxes, where to be brought. Sec. 733. Taxes iiccruing under any law providing internal revenue may be sued for and recovered either in the district where the liability for such tax occurs or in the district where the delinquent resides. Seizures, where cognizable. Sec. 734. Proceedings on seizures, for for- feiture under any law of the United States, made on the high seas may be prosecuted in any district into which the property so seized is brought and proceedings instituted. Proceedings on such seizures made within any district shall be * prosecuted in the district where ~[*fi. 8., p. 139.] the seizure is made, except in cases where it is otherwise ■provided. Captures of insurrectionary property, where cognizable. Sec. 785. Pro- •ceedings for the condemnation of any property captured [as prize],' whether on the high seas or elsewhere out of the limits of any judicial district, or within any district, on account of its being purchased or acquired, sold or ^iven, with intent to use or employ the same, or to suffer it to be used or employed, in aiding, abetting, or promoting any insurrection against the Gov- ernment of the United States, or knowingly so used or employed by the owner thereof, or with his consent, may be prosecuted in any district where the same may be seized, or into which it may be taken and proceedings first instituted. Proceedings to enjoin Comptroller of the Currency. Sec. 736. All pro- ceedings by any national banking association to enjoin the Comptroller of the Currency, under the provisions of any law relating to national banking asso- ciations, shall be had in the district where such association is located. When a part of several defendants cannot be served. Sec. 787. When there are severail defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within, the district in which the suit is brought, and do not voluntarily appear, the court may entertain juris- diction, and proceed to the trial and adjudication of the suit between the par- ties who are properly before it; but the judgment or decree rendered therein shall not conclude or prejudice other parties not regularly served with process nor voluntarily appearing to answer; and non-joinder of parties who are not 'The words "as prize"' are stricken February 18, 1875, 18 Stat, at L., out, by way of amendment, by act of 313. lii THE ENACTMENTS. inhabitants of nor found within the district, as aforesaid, shall not constitute- matter of abatement or objection to the suit. Suits in equity against absent defendants, to subject property in the dls> trict. Sbc. 738. When any defendant in a suit in equity to enforce any legal or equitable lien or claim against real or personal property within the district where the suit is brought is not an inhabitimt of nor found within the said district, and does not voluntarily appear thereto, it shall be lawful for the- court to make an order directing such absent defendant to appear, plead, answer, or demur to the complainant's bill at a certain day, therein to be designated; and the said order shall be served on such absent defendant, if practicable, wherever found, or, where such personal service is not practica- ble, shall be published in such manner as the court shall direct. If such absent defendant does not appear, plead, answer, or demur within the time so limited, or within some further time to be allowed by the court in its discretion, it shall be lawful for the court, upon proof of the service or publication of the said order, and of the performance of the directions contained therein, to- entertain jurisdiction, and proceed to the hearing and adjudication of such suit, in the same manner as if such absent defendant had been served with process within the said district. But the said adjudication shall, as regards such absent defendant without appearance, affect his property within such district only. Suits against inhabitants of United States to be brought where they reside- or are found. Sbc. 739. Except in the cases provided in the next three sec- tions, no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court; and except in the said cases and the cases provided by the preceding section, no civil suit shall be brought before either of said courts against an inhabitant of the [* JS. B., p. 140.] United States, *by any original process, in any other district than that of which he is an inhabitant or in which he ia found at the time of serving the writ. Suits not of a local nature in States containing several districts. Sec. 740, When a State contains more than one district, every suit not of a local nttture^ in the circuit or district courts thereof, against a single defendant, inhabitant of such State, must be brought in the district where he resides; but if there are two or more defendants, residing in different districts of the State, it may be brought in either district, and a duplicate writ may be issued against the defendants, directed to the marshal of any other district in which any defend- ant resides. The clerk issuing the duplicate writ shall indorse thereon that it. is a true copy of a writ sued out of the court of the proper district; and such original and duplicate writs, when executed and returned into the office from which they issue, shall constitute and be proceeded on as one suit ; and upon any judgment or decree rendered therein, execution may be issued, directed to the marshal of any district in the same State. Suits of a local nature in States containing several districts. Sbc. 741. In suits of a local nature, where the defendant resides in a different district, in the same State, from that in which the suit is brought, the plaintiff may have original and final process against him, directed to the marshal of the district in which he resides. When land lies in different districts of the same State. Sec. 742. Any STATUTES OF PRACTICAL UTILITY. liii suit of a local nature, at law or in equity, wliere the land or other subject- matter of a fixed character lies partly in one district and partly in another, "within the same State, may be brought in the circuit or district court of ■either district; and the court in which it is brought shall have jurisdiction to hear and decide it, and to cause mesne or final process to be issued and exe- cuted, as fully as if the said subject-matter were wholly within the district for which such court is constituted. Sec. 743-745. [Relates particularly to commencement of actions in Indiana ; -wh6re, in Iowa, suits are to be brought ; and Where, in Kentucky, suits are to be returned and tried.] Causes in progress of trial not discontinued by arrival [* R. S., p. 141.] of new term, * Sec. 746. When the trial or hearing of any ■cause, civil or criminal, in a circuit or district court, has been commenced and is in progress before a jury or the court, it shall not be stayed or discontinued by the arrival of the time fixed by law for another session of said court; and the •court may proceed therein and bring it to a conclusion, in the same manner and with the same effect as if another stated term of the court had not intervened. Parties may manage their causes personally or by counsel. Sec. 747. In all the courts of the United States the parties may plead and manage their own •causes personally, or by the assistance of such counsel or attorneys at law as, by the rules of the said courts, respectively, are permitted to manage and con- duct causes therein. Certain officers forbidden to practice as attorneys, &c. Sec. 748. No ■clerk, assistant or deputy clerk, of any territorial, district, or circuit court, or of the Court of Claims, or the Supreme Court of the United States, or marshal or deputy marshal of the Unted States, within the district for which he is appointed, shall act as a solicitor, proctor, attorney, or counsel in any cause depending in either of said courts, or in any district for which he is acting as such officer. Penalty for violating preceding' section. Sec 749. Whosoever violates the preceding section shall be stricken from the roll of attorneys by the court npon complaint, upon which the respondent shall have due notice, and be heard in his defense ; and in the case of a marshal or deputy marshal so acting, he shall be recommended by the court for dismissal from office. Final record, how made in equity and admiralty causes. Sec. 750. In equity and admiralty causes, only the process, pleadings, and decree, and such ■orders and memorandums as may be necessary to show the jurisdiction of the •court and regularity of the proceedings, shall be entered upon the final record. * CHAPTER THIRTEEN. [* B. 8., p. .] HABEAS COBPrS. Power of courts to issue writs of habeas corpus. Sec. 751. The Supreme Court and the circuit and district courts shall have power to issue writs of habeas corpus. Power of judges to grant writs of habeas corpus. Sec. 753. The several justices and judges of the said courts, within their respective jurisdictions, ' See section 698. liv THE ENACTMENTS. shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty. Writ of habeas corpus when prisoner is' in jail. Sec. 753. The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is com- mitted for trial bof ore some court thereof ; or is in custody for an act done or omitted in pursuance of a law of the United States, or of ah order, process, or decree of a court or judge thereof; or is in custody in violation of the consti- tution, or of a law or treaty of the United States ; or, being a subject or citizen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the- law of nations ; or unless it is necessary to bring the prisoner into court to testify. Application for the writ of habi'as corpus. Sec. 754. Application for a writ of habeas corpus shall be made to the court, or justice, or judge author- ized to issue the same, by complaint in writing, signed by the person for whose- relief it is intended, setting forth the facts concerning the detention of theparty restrained, in whose custody he is detained, and by virtue of what claim or authority, if kno-wn. The facts set forth in the complaint shall be verified by the oath of the person making the application. Allowance and direction of the writ. Sec. 755. The court, or justice, or judge to whom such application is made shall forthwith award a writ of habeas corpus, unless it appears from the petition itself that the party is not entitled thereto. The writ shall be directed to the person in whose custody the party is detained. , Time of return. Sec. 756. Any person to whom such writ is directed shall make due return thereof within three days thereafter, unless the party be detained beyond the distance of twenty miles ; and if beyond that distance, and not beyond a distance of a hundred miles, within ten days; and if beyond the distance of a hundred miles, within twenty days. Form of return. Sec. 757. The person to whom the writ is directe(i shall certify to the court, or justice, or judge before whom it is returnable the true cause of the detention of such party. Body of the party to be produced. Sec. 758. The person making the- return shall at the same time bring the body of the party before the judge who granted the writ. Day for hearing. Sec. 759. When the writ is returned, a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning requests a longer time. Denial of return^ counter-allegations; amendments. Sec. 760. The petitioner or the party imprisoned or restrained may deny any of the facts set forth in the return, or may allege any otlier facts that may be material in the case. Said denials or allegations shall be under oath. The return and all suggestions made against it may be amended, by leave of the court, or justice, or judge, before or after the same are filed, so that thereby the material facts- may be ascertained. Summary hearing ; disposition of party. Sec. 761. The court, or justice^ STATUTES OF PRACTICAL UTILITY. Iv or judge shall proceed in a summary way to determine the facts of the case, by hearing the testimony and arguments, and thereupon to dispose of the party as law and justice require. * In cases involTlng the law of nations, notice to be \^ R. 8., p. 143.] served on State attorney-general. Sec. 763. When a writ of habeas corpus is issued in the case of any prisoner who, being a subject or citizen of a foreign state and domiciled therein, is committed, or confined, or in custody, by or under the authority or law of any one of the United States, or process founded thereon, on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, claimed under the commission or order or sanction of any foreign state, or under color thereof, the validity and effect whereof depend upon the law of nations, notice of the said proceeding, to be prescribed by the court, or justice, or judge at the time of granting said writ, shall be served on the attorney-gen- eral or other officer prosecuting the pleas of said State, and due proof of such service shall be made to the court, or justice, or judge before the hearing. Appeals in cases of habeas corpus to circuit court. Sbo. 763. From the final decision of any court, justice, or judge inferior to the circuit court, upon an application for a writ of habeas corpus or upon such writ when issued, an appeal may be taken to the circuit court for the district in which the cause is heard : 1. In the case of any person alleged to be restrained of his liberty in viola- tion of the Constitution, or of any law or treaty of the United States. 2. In the case of any prisoner who, being a subject or citizen of a foreign state, and domiciled therein, is committed or confined, or in custody by or under the authority or law of the United States, or of any State, or process founded thereon, for or on account of any act done or omitted under any alleged right, title, authority, privilege, protection, or exemption, set up or claimed under the commission, order, or sanction of any foreign state or sovereignty, the validity and effect whereof depend upon the law of nations, or under color thereof. Appeal to Supreme Court. Sec. 764. From the flpal decision of such circuit court an appeal may be taken to the Supreme Court in the cases des- cribed inthe last clause of the preceding section. Appeals, how taken. Sbo. 765. The appeals allowed by the two preceding sections shall be taken on such terms, and under such regulations and orders, as well for the custody and appearance of the person alleged to be in prison or confined or restrained of his liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return thereto, and other proceedings, as may be prescribed by the Supreme Court, or, in default thereof, by the court or judge hearing the cause. Pending proceedings in certain cases, action by State authority void. Sec. 766. Pending the proceedings or appeal in the cases mentioned in the three preceding sections, and until final judgment therein, and after final judgment of discharge, any proceeding against the person so imprisoned or confined or restrained of his liberty, in any State court, or by or under the authority of any state, for any matter so heard and detennined, or in process of being heard and determined, under such writ of habeas corpus, shall be deemed null and void. Ivi THE ENACTMENTS. OHAPTEK FOURTEEN. DISTRICT ATTOBNBYS, MARSHAIiB, AND CLERKS. [* R. S.,p. 144.] * District attorneys. Sec. 767. There shall be appoint- ed in each district, except in the middle district of Alabama, and the northern district of Georgia, and the ii\estern district of South Carolina, a person learned in the law, to uct as iittorney for the United States in such district. The district attorney of the northern district of Alabama shall perform the duties of district attorney of the middle district of said-State; and the district attorney of the southern district of Georgia shall perform the duties of district attorney of the northern district of said state; and the district attorney of the eastern district of South Carolina shall per- form the duties of district attorney for the western district of said State. Iowa, district attorney. Sec. 768. The district attorney of the district of Iowa shall perform the duties of district attorney for all of the divi|ions of said district. Term and oath of district attorneys. Sec. 769. District attorneys shall be appointed for a term of four years, and their commissions shall cease and expire at the. expiration of four years from their respective dates. And every district attorney, before entering upon his office, shall be sworn to a faithful execution thereof. Salaries of district attorney. Sec. 770. The district attorney for the southern district of New York is entitled to receive quarterly, for all his ser- vices, a Salary at the rate of six thousand dollars a year. For extra services the district attorney for the district of California is entitled to receive a salary at the rate of five hundred dollars a year, and the district attorneys for all other districts at the rate of two hundred dollars a year. [* n. 8., p. 145.] Duties of district attorneys. * Sec. 771. It shall be the duty of every district attorney to prosecute, in his dis- trict, all delinquents for crimes and offenses cognizable under the authority of the United States, and all civil actions in which the United States are con- cerned, and, unless otherwise instructed by the Secretary of the Treasury, to appear in behalf of the defendants in all suits or proceedings pending in^is district against collectors, or other officers of the revenue, for any act done by them or for the recovery of any money exacted by or paid to such officers, and by them paid into the Treasury. ' Sec. 772. [Requires district attorneys, on instituting suit for a fine, penalty or forfeiture, to transmit to the Secretary of the Treasury a statement thereof.] Sec. 773. [Requires district attorneys to make returns to the solicitor of the treasury at end of each term, and on the first day of every October, as to the judicial business in his district.] Sec. 774. [Requires district attorneys to report suits under internal revenue laws, to the Commissioner of Internal Revenue.] Sec. 775. [Requires district attorneys to report, at end of each term, to the Department of Justice, of progress of any suit for money due the Post Office ' For provisions directing district be sued for official acts, see act of attorneys to appear for officers of March 3, 1875, ch. 130, § 8, 18 Stat al either House ot Congress, who may L., 401. STATUTES OF PRACTICAL UTILITY. Ivii preceding sections shall be taken down in writing by the officer before whom the witness appears, and shall be certified and transmitted by him to the court in which the suit is pending, in such manner as the practice of that court may require. If any person refuses or neglects to appear at the time and place mentioned in the summons, or, on his appear- ance, refuses to testify, he shall be liable to the same penalties as would be incurred for a like offense on tlie trial of a suit. Witness-fees. Sec. 874. Every witness appearing and testifying under the said provisions relatirig to the District of Columbia shall be entitled to receive for each day's attendance, from the party at whose instance he is summoned, the fees now provided by law for each day he shall give attendance. Letters rogatory from United States courts. Sec. 875. When any com- mission or letter rogatory, issued to take the testimony of any witness in a foreign country, in any suit in which the United States are parties or have an interest, is executed by the court or the commissioner to whom it is directed, it shall be returned by such court or commissioner to the minister or consul of the United States nearest the place where it is executed. On receiving the same, the said minister or consul shall indorse thereon a certificate, stating when and where the same was received, and that the said deposition is in the same condition as when he received it; and he shall thereupon transmit the said letter or commission, so executed and certified, by mail, to the clerk of the couit from which the same issued, in the manner in which his official dis- patches are transmitted to the Government. And the testimony of witnesses so taken and returned shall be read as evidence on the trial of the suit in which it was taken, without objection as to the method of returning the same. Subpcenas for witnesses to run into another district. Sec. 876. Sub- poenas for witnesses who are required to attend a court of the United States, in any district, may fun into any other district: Provided, That in civil causes the witnesses living out of the district in which the court is held do not live at a greater distance than one hundred miles from the place of holding the same. [* A i8., p. 166.] * Form of snbpoenas; attendance under. Sec. 877. Witnesses who are required to attend any term of a circuit or district court ,on the part of the United States, shall be subpcenaed to attend to testify generally on their behalf^ and not to depart the court without leave thereof, or of the district attorney; and under such process they shall appear before the grand or petit jury, or both, as they may be required by the court or district attorney. Witnesses in behalf of Indigent defendants in criminal cases. Sec. 878. Whenever any person indicted in a court of the United States makes affidavit, setting forth that there are ^witnesses whose evidence is material to his defense; that he can not safely go to trial without them; what he expects to prove by each of them; that they are within the district in which the court is held, or within one hundred miles of the place of trial; and that he is not possessed of sufficient means, and is actually unable to pay the fees of such witnesses, the STATUTES OF PRACTICAL UTILITY. Ixxvii court in term, or any jndge thereof in vacation, may order that such witnesses be subpoenaed if found within the limits aforesaid. In such case the costs incurred by the process and fees of the witnesses shall be paid in the same manner that similar costs and fees are paid in case of witnesses subpoenaed in behalf of the United States. Recog'nizance . of Tvitnesses at the hearing of charges in criminal cases. Sec. 879. Any judge or other officer who may be authorized to arrest and imprison or bail persons charged with any crime or offense against the United States may, at the healing of any such charge, require of any witness produced against tlie prisoner, on pain of imprisonment, a recognizance, with or without sureties, in his discretion, for his appearance to testify in the case. And where the crime or ofEense is charged to have been committed on the higli seas, or elsewhere within the admiralty and maritime jurisdiction of the United States, he may, in his discretion, require a like recognizance, with such sureties as he may deem necessary, of any witness produced in behalf of the accused, whose testimony in his opinion is important, and is in danger of being otherwise lost.' Sec. 880. [Kelates to the district of Vermont.] Iteco^nizance of witnesses required at any time on application of district attorney. Sec. 881. Any judge of the United States, on the application of a district attorney, and on being satisfied by proof that the testimony of any person is competent and will be necessary on the trial of any criminal proceed- ing in which the United States are parties or are interested, may compel such person to give recognizance, with or without sureties, at his discretion, to appear to testify therein; and, for that purpose, may issue a warrant against such person, under his hand, with or without seal, directed to the marshal or other officer authorized to execute process in behalf of the United States, to arrest and bring before him such person. If the person so arrested neglects or refuses to give recognizance in the manner required, the judge may issue a warrant of commitment against him, and the officer shall convey him to the- prison mentioned therein. And the said person shall remain in confinement until he is removed to the court for the purpose of giving his testimony, or until he gives the recognizance required by said judge. Copies of Department records and papers. Sec. 883. Copies of any books, records, papers; or documents in any of the Executive Departments, authenti- cated under the seals of such Departments, respectively, shall bo admitted in evidence equally with the originals thereof. Copies of records, &c., in office of Solicitor of tlie Treasury. Sec. 883. Copies of any documents, records, books, or papers in the office of the Solicitor of the Treasury, certified by him under the seal of his office, or, when his office is vacant, by the officer acting as Solicitor for the time, shall be evidence equally with the originals. [*i2. 5., p. 167.] * Instruments and papers for Comptroller of the Cur- rency. Sec. 884. Every certificate, assignment, and conveyance exe- cuted by the Comptroller of the Currency, in pursuance of law, and sealed with his seal of office, shall be received in evidence in all places and courts; and all copies of papers in his office, certified by liim and authen- " See sections 848, 1014. Ixxviii THE ENACTMENTS. ticated by the said seal, shall in all cases be evidence equally with the origi- nals. An impression of such seal diieotly on the paper shall be as valid as if made on wax or wafer. Organization certificates of national banks. Sec. 885. Copies of the organi- Tiation certificate of any national banking association, duly certified by the Comptroller of the Currency, and authenticated by his seal of ofiioe, shall be evidence in all courts and places witliin the jurisdiction of the United States of the existence of the association, and of every matter which could be proved by the production of the original certificate. Transcripts from books, &c., of the Treasury, in suits against delin- quents. Sec. 886. When suit is brought in any case of delinquency of a rev- enue officer, or other person accountable for public money, a transcript from the books and proceedings of the Treasury Department, certified by the Regis- ter and authenticated under the seal of the Department, or, when the suit involves the accounts of the War or Navy Departments, certified by the Audi- tors respectively charged with the examination of those accounts, and authen- ticated under the seal of the Treasury Department, shall be admitted as evi- -dence, and the court trying the cause shall be authorized to grant judgment and award execution accordingly. And all copies of bonds, contracts, or other papers relating to, or connected with, the settlement of any accounj; between the United States and an individual, when certified by the Begister, or by such Aaditor, as the case may be, to be true copies of the originals on file, and authenticated under the seal of the Department, may be annexed to such tran- scripts, and shall have equal validity, and be entitled to the same degree of credit which would be due to the original papers if produced and authenti- cated in court: Provided, That where suit is brought upon a bond or other sealed instrument, and the defendant pleads " non est factum," or makes his motion to the court, verifying such plea or motion by his oath, the court may take the same into^ consideration, and, if it appears to be necessary for the attainment of justice, may require the production of the original bond, con- tract, or other paper specified in such affidavit. Transcripts from books of the Treasury in indictments for embezzlement of public moneys. Sec. 887. Upon the trial of any indictment against 'any person for embezzling public moneys, it shall be sufficient evidence, for tjie purpose of showing a balance against Such person, to produce a transcript from the bo>)ks and proceedings of the Treasury Department, as provided by the preceding section. Copies of returns in returns-offlce. Sec. 888. A copy of any return of a contract returned and filed in the returns-offlce of the Department of the Inte- rior, as provided by law, when certified by the clerk of the said office to be full and complete, and when authenticated by the seal of the Department, shall be evidence in any prosecution against any officer for falsely and corruptly swearing to the affidavit required by law to be made by such officer in making his return of any contract, as required by law, to said returns-offlce. Copies of Post-Office records and of Auditor's statement of acconnts. Sec. 889. Copies of the quarterly returns of postmasters and of any papers pertaining to the accounts in the offlce of the Sixth Auditor, and transcripts from the money-order account-books of the Post-Offlce Department, when cer- .tified by the Sixth Auditor under the seal of his offlce, shall be admitted as STATUTES OF PRACTICAL UTILITY. Ixxix evidence in the courts of the United States, in civil suits and criminal prose- cutions ; and in any civil suit, in case of delinquency of any postmaster or contractor, a statement of the account, certified as aforesaid, shall be admitted in evidence, and the court shall be authorized thereupon to give judgment and award execution, subject to the provisions of law as to proceedings in such civil suits. * Copies of statements of demands by Post-Offlce Depart- [* R. 8., p. 168. J ment. Sec. 890. In all suits for the recovery of balances due from postmasters, a copy, duly certified under the seal of the Sixth Audi- tor, of the statement of any postmaster, special agent, or other person, employed by the Postmaster-General or the Auditor for that purpose, that he has mailed a letter to such delinquent postmaster at the post-oiBce where the indebtedness accrued, or at his last usual place of abode; that a sufficient time has elapsed for said letter to have reached its destination in the ordinary course of the mail ; and that payment of such balance has not been received, witliin the time designated in his instructions, shall be received as sufficient evidence in the courts of the United States, or other courts, that a demand has been made upon the delinquent postmaster; but when the account of a late postmaster has been once adjusted and settled, and a demand has been made for the balance appearing to be due, and afterward allowances are made or credits entered, it shall not be necessary to make a further demand for the new balance found to be due. Copies of recoi-ds, &c., of General Land-Office. Sec. 891. Copies of any records, books, or papers in the General Land-Office, authenticated by the seal and certified by the Commissioner thereof, or, when his office is vacant, by the principal clerk, shall be evidence equally with the originals thereof. And literal exemplifications of any such records shall beheld, when so intro- duced in evidence, to be of the same validity as if the names of the officers signing and countersigning the same bad been fully inserted in such record. Copiesof records, &c., of Patent-Office. Sec. 893. "Written or printed copies of any records, books, papers, or drawings belonging to the Patent-Office, and of letters-patent, authenticated by the seal and certified by the Commissioner or Acting Commissioner thereof, shall be evidence in all cases wherein the originals could be evidence ; and any person making application therefox, and paying the fee required by law, shall have certified copies thereof. Copies of foreign letters-patent. Sec. 893. Copies of the specifications and drawings of foreign letters-patent, certified as provided in the preceding sec- tion, shall be prima-facie evidence of the fact of the granting of such letters- patent, and of the date and contents thereof. Printed copies of specifications and drawings of patents. Sec. 894. The printed copies of specifications and drawings of patents, wliich the Commis- .sioner of Patents is authorized to print for gratuitious distribution, and to deposit in the capitols of the States and Territories, and in the clerk's offices or the district courts, shall, when certified by him and authenticated by the seal of his office, be received in all courts as evidence of all matters therein contained. Extracts li-om the Journals of Congress. Sec. 895. Extracts from the .Journals of the Senate, or of the House of Representatives, and of the Execu- Ixxx THE ENACTMENTS. tive Journal of the Senate when the injunction of secrecy is removed, certified by the Secretary of the Senate or by the Clerk of the House of Representatives, shall be admitted as evidence in the courts of the United States, and shall have the same force and efiect as the originals ■would have if produced and authenticated in court. Copies of records, &c., in offices of United States consnls, &c. Sec. 896. Copies of all official documents and papers in the office of any consul, vice- counsul, or commercial agent of the United States, and of all official entries in the books or records of any such office, certified under the hand and seal of such officer, shall be admitted in evidence in the courts of the United States. Sec. 897, 898. [Declare transcri pts into new books, made by the clerks of the district courts in the several districts of Texas, Florida, Wisconsin, Minnesota,. Iowa, and Kansas and in the western district of North Carolina, to be evi- dence equally with the originals.] [* iJ. 970. When, in any prosecution commenced on account pf the seizure of any vessel, goods, wares, or merchandise, made by any collector or other officer, under any act of Congress authorizing su ch seizui'e, judgment is rendered for the claimant, but it appears to the court that there was reasonable cause of seiz- ure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution : Provided, That the vessel, goods, wares, or merchandise be, after judgment, forthwith returned to such claimant or his agent. Double costs, when plaintiff is nonsuited in action agrainst officer making seizure, &c. Sec. 971. If, in any suit against an officer or other person executing: or aiding or assisting in the seizure of the goods, under any act providing for or regulating the collection of duties on imports or tonnage, the plaintiff ia nonsuited, or judgment passed' against him, the defendant shall recover double costs. * Copyright suits, flill costs allowed. Sbo. 973. In all [* B. S., p. 183.] recoveries under the copyright laws, either for damages, forfeitures, or penalties, full costs shall be allowed thereon. v Costs not recoverable in certain suits for infringement of patent, unless disclaimer entered, &c. Sec. 973. When judgment or decree is rendered for the plaintiff or complainant, in any suit at law or in equity, for the infringe- ment of a part of a patent, in which it appears that the patentee, in his speci- fication, claimed to be the original and first inventor or discoverer of any material or substantial part of the thing patented, of which he was not the original and first inventor, no costs shall be recovered, unless the proper dis- claimer, as provided by the patent-laws, has been entered at the Patent-Office before the suit was brought. When costs of prosecution to he paid by defendant. Sec. 974. When judgment is rendered against the defendant in a prosecution for any fine or forfeiture incurred under a statute of the United States, he shall be subject to the payment of costs ; and on every conviction for any other offense not capital, the court may, in its discretion, award that the defendant shall pay the costs of the prosecution. When costs are recovered by defendant in a prosecution. Sec. 975. If any xciv THE ENACTMENTS. informer or plaintiff on a penal statute, to whom the penalty or any part thereof, if recovered, is directed to accrue, discontinues his suit or prosecution, or is non-suited therein, or if upon trial judgment is rendered in favor of the defendant, the court shall award to the defendant his costs, unless such informer or plaintiff is an officer of the United States specially authorized to commence such prosecution, and the court, at the trial in open court, certifies upon the record that there was reasonahle cause for commencing the same ; in which case no costs shall be "adjudged to the defendant. Fees of clerk, marshal, &c., when payable by Informer; when by United States. Sec. 976. If any informer on a penal statute, to whom the penalty or any part thereof, if recovered, is directed to accrue, discontinues his suit or prosecution, or is non-suited therein, or if upon trial judgment is rendered in favor of the defendant, such informer shall be alone liable to the clerk, mar- shal, and attorney for the fees of such prosecution, unless he is an officer of the United States whose duty it is to commence such prosecution, and the court certifies that there was reasonable cause for commencing the same; in which case the United States shall be responsible for such fees. Costs, when several actions are brought against parties who might be joined in one. Sec. 977. If several actions or processes are instituted, in a court of the United States or one of the Territories, against persons who might legally be joined in one action or process touching the matter in dis- pute; the party pursuing the same shall not recover, on all of the judgments therein which may be rendered in his favor, the costs of more than one action or process, unless special cause for said several actions or processes is satisfac- torily shown on motion in opeu court. Allowance of costs in libels against vessel and cargo. Sec. 978. "When proceedings are had before a court of the United States or of the Territories, on several libels against any vessel and cargo, which might legally be joined in one libel, there shall not be allowed thereon more costs than on one libel, unless special cause for libeling the vessel and cargo separately is satisfactorily shown on motion in open court. And in proceeding in several libeis'or infor- mations against any cargo, or parts of cargo or merchandise seized as forfeited for the same cause, there shall not be allowed more costs than would be law- ful on one libel or information, whatever may be the number of owners or con- signees therein concerned. But allowance may be made on one libel or infor- mation for the costs incidental to several claims. Claimant's costs to be paid before possession, when, &c. Sec. 979. When judgment is rendered in favor of the claimant of any vessel or other property seized on behalf of the United States, and libeled or informed against as for- feited under auy law thereof, he shall be entitled to possession of the same when his own costs are paid. [*fl. /S., p. 184] *When district attorney is. entitled to but one bill of costs for several prosecutions. Sbo. 980. When a district attorney prosecutes two or more indictments, suits, or proceedings which should be joined, he shall be paid but one bill of costs for all of them. Taxation of fees of witness, before a commissioner. Sec. 981. In no case shall the fees of more than four witnesses be taxed against the United States in the examination of any criminal case before a commissioner of a circuit STATUTES OF PRACTICAL UTILITY. xov -court, unless their materiality and importance are first approved and certified to by the district attorney for the district in which the examination is had; and such taxation shall be subject to revision, as in other cases. Attorney liable for costs yexationsly increased by him. Sbo. &83. If any attorney, proctor, or otber person admitted to conduct causes in any court of the United States, or of any Territory, appears to have multiplied the proceed- ings in any cause before such court, so as to increase costs unreasonably and vexatiously, he shall be required, by order of the court, to satisfy any excess of costs so increased. Bill of costs, how taxed. Seo. 983. The bill of fees of the clerk, marshal, and attorney, and the amount paid printers and witnesses, and lawful fees for exemplifications and copies of papers necessarily obtained for use on trials in cases where by law costs are recoverable in f^vor of the prevailing party, shall be faxed by a judge or clerk of the court, and be included in and form a por- tion of a judgment or decree against the losing party. Such taxed bills shall be filed with the papers in the cause. Bills of costs to be sworn to before taxed or allowed. Sec. 984. Before any bill of costs shall be taxed by any judge or other' officer, or allowed by any officer of the Treasury, in favor of clerks, marshals, commissioners, or dis- trict attorneys, the party claiming such bill shall prove by his own oath, or that of some other person having a knowledge of the facts, to be attached to such bill, and filed therewith, that the services charged therein have been actually and necessarily performed, as therein stated. Executions to run in all the districts of a State. Sec. 98S. AH writs of execution upon judgments or decrees obtained in a circuit or district court, in any State which is divided into two or more districts, may run and be executed in any part of such State; but shall be issued from, and made returnable to, the court wherein the judgment was obtained. Executions in favor of United States to run in every State and Territory. Sec. 986. All writs of execution upon judgments obtained for the use of the United States, in any court thereof, in one State, may run and be executed in any other State, or in any Territory, but shall be issued from, and made returnable to, the court wherein the judgment was obtained. Execution stayed on conditions. Sec. 987. When a circuit court enters judgment in a civil action, either upon a verdict or on a finding of the court upon the facts, in cases where suci finding is allowed, execution may, on motion of either party, at the discretion of the court, and on such conditions for the security of the adverse party as it may judge proper, be stayed forty-two days from the time of entering judgment, to give time to file in the clerk's office of said court a petition for a new trial. If such petition is filed within said term of forty-two days, with a certificate thereon from any judge of such court that he allows it to be filed, which certificate he may make or refuse at his discretion, execution shall, of course, be further stayed to the next ses- sion of said court. If a new trial be granted, the former judgment shall be thereby rendered void. When judgment debtor entitled to a continuance of one terra. Sec. 988. In any State where judgments are liens upon the property of the defendant, and where, by the laws of such State, defendants are entitled, in the courts thereof, to a stay of execution for one term or more, defendants in actions in xcvi THE ENACTMENTS. the courts of the United States, held therein, shall be entitled to ia stay of execution for one term. [*-ffi. (S., p. 185.] * Execution not to issue against officers of reyenue in cases of probable cause, &c. Sec. 989. When a recovery- is had in any suit or proceeding against a collector or other officer of the revenue for any act done by him, or for the recovery of any money exacted by or paid to him and by him paid into the Treasury, in the performance of his official duty, and the court certifies that there was probable cause for the act done by the collector or other officer, or that he acted under the directions of the Secretary of the Treasury, or other proper officer of the Government, no execu- tion shall issue against such collector or other officer, but the amount so recovered shall, upon final judgment, be provided for and paid out pf the proper appropriation from the Treasury. Imprisonment for debt. Sec. 890. No person shall be imprisoned for debt in any State, on process issuing from a court of the United States, where, by the laws of such State, imprisonment for debt has been or shall be abolished. And all modifications, conditions, and restrictions upon imprisonment for debt, provided by the laws of any State, shall be applicable to the process issuing from the courts of the United States to be executed therein ; and the same course of proceedings shall be adopted therein as may be adopted in the courts of such State. Discharge from arrest or imprisonment on mesne or final process. Sbo. 991. When any person is arrested or imprisoned in any State, on mesne process or execution issued from any court of the United States, in any civil action, he shall be entitled to discharge from such arrest or imprisonment in the same manner as if he were so arrested and imprisoned on like process from the- courts of such State. The same oath may be taken, and the same notice thereof shall be required, as may be provided by the laws of such State, and the same course of proceedings shall be adopted as may be adopted in the courts thereof. But all such proceedings shall be had before one of the com- missioners of the circuit court for the district where the defendant is so held. Privileges of jail limits. Sec. 992. Persons imprisoned on process issuieg- from any court of the United States in civil actions, as well at the suit of the United States as at the suit of any person, shall be entitled to the same privi- leges of the yards of the respective jails as persons confined in like cases on process from the courts of the respective States are entitled to, and under the like regulations and restrictions. Ooods taken on a fieri facias, how appraised. Sec. 993. When it is required by the laws of any State that goods taken in execution on a writ of fieri facias shall be appraised, before the sale thereof, the appraisers appointed under the authority of the State may appraise goods taken in execution on a fieri facias issued out of any court of the United States, in the same manner as if such writ had issued out of a court of such State. And the marshal, in whose custody suCh goods may be, shall summon the appraisers, in the same manner as the sheriff is, by the laws of such State, required to sum- mon them; and if the appraisers, being duly summoned, fail to attend and perform the duties required of them, the marshal may proceed to sell such goods without an appraisement. When such appraisers attend they shall ba STATUTES OF PRACTICAL UTILITY. xcvii entitled to the like fees as in cases of appraisements under the laws of the State. Death of marshal after lerj or after, sale. 8bo. 994. "When a marshal dies, or is removed from office, or the term of his commission expires, after he has taken in execution, under process from a court of the United States, any lands, tenements, or hereditaments, and before sale or other final disposition thereof, the like process shall issue to the succeeding marshal, and the same proceed- ing shall be had as if such marshal had not died or been removed, or the term of his commission had not expired. And when a marshal dies or is removed from office, or the term of his commission expires, after he has sold any lands, tenements, or hereditaments, under process from a court of the * United States, and before a deed for the same is [* B. 8,., p. 186.] executed by him to the purchaser, such court may, on application by the purchaser, or by the plaintiff at whose suit the sale was made, setting forth the case and the reason why the title was not perfected by said marshal, order the marshal for the time being to perfect the title and execute a deed to the purchaser, upon his paying the purchase-money and costs remaining unpaid. Moneys paid into court, where and how deposited. Sec. 995. All moneys paid into any court of the United States, or received by the officers thereof, in any cause pending or adjudicated in such court, shall be forthwith deposited with the Treasurer, an assistant treasurer, or a designated depositary of the United States, in the name and to the credit of such court : Provided, That nothing herein shall be construed to prevent the delivery of any such money upon security, according to agreement of parties, under the direction of the court. How moneys deposited to be withdrawn. Sec. 996. No money deposited as aforesaid shall be withdrawn except by order of the judge or judges of said courts respectively, in term or in vacation, to be signed by such judge or judges, and to be entered and certified of record by the clerk ; and every such order shall state the cause in or on account of which it is drawn. Removal of causes by writ of error. Sec. 997. There shall be annexed to and returned with any writ of error for the removal of a cause, at the day and place therein mentioned, an authenticated transcript of the record, an assignment of errors, and a prayer for reversal with a citation to the adverse party. Citation. Sec. 998. When the writ is issued by a circuit court to a district court, the citation shall be signed by the judge of such district court, or by the circuit judge or such circuit court, or by a justice of the Supreme Court, and the adverse party shall have at least twenty days' notice. Citation, Supreme Court. Sec. 999. When the writ is issued by the Supreme Court to a circuit court, the citation shall be signed by a judge of such circuit court, or by a justice of the Supreme Court, and the adverse party shall have at least thirty days' notice; and when it is issued by tlie Supreme Conrt to a State court, the citation shall be signed by the Chief Justice, or judge, or chancellor of such court, rendering the judgment or passing the decree complained of, or by a justice of the Supreme Court of the United States, and the adverse party shall have at least thirty days' notice. Vol. L— G xcviji THE ENACTMENTS. [* R. S., p. 187.] *Boiid in error and on appeal. Sec. 1000. Every jus- tice or judge signing a citation on any writ of error, shall, except in cases brought up by the United States or by direction of any Depart- ment of the Government, take good and sufficient security that the plaintiff in error or the appellant shall prosecute his writ or appeal to eflfect, and, it he fail to make his plea good, shall answer all damages and costs, where the writ is a supersedeas and stays execution, or all costs only where it is not a super- sedeas as aforesaid. Kg bond required of United States, &c. Sec. 1001. Whenever a writ of error, appeal, or other process in law, admiralty, or equity, issues from or is brought up to the Supreme Court, or a circuit court, either by the United States or by direction of any Department of the Government, no bond, obliga- tion, or security shall be required from the United States, or from any party acting under the direction aforesaid, either to prosecute said suit, or to answer in damages or costs. In case of an adverse decision, such costs as by law are taxable against the United States, or against the party acting by direction as aforesaid, shall be paid out of the contingent fund of the Department under whose directions the proceedings were instituted. Writs of error to district courts acting as circuit courts. Sjsc. 1002. Writs of error shall be prosecuted from the final judgments of district courts acting as circuit courts to the Supreme Court in the same manner as from the final judgments of circuit courts. Writs of error to State courts, manner of issue. Sec. 1003. Writs of error from the Supreme Court to a State court, in cases authorized by law, shall be issued in the same manner, and under the same regulations, and shall have the same effect as if the judgment or decree complained of had been ren- dered or passed in a court of the United States. Writs of error returnable to the Supreme Court, how issued. Sbo. 1004. Writs of error returnable to the Supreme Court may be issued as well by the clerks of the circuit courts, under the seals thereof, as by the clerk of the Supreme Court. When so issued they shall be, as nearly as each case may admit, agreeable to the form of a writ of error transmitted to the clerks of the several circuit courts by the clerk of the Supreme Court, in pursuance of sec- tion nine of the act of May eight, seventeen hundred and ninety-two, chapter thirty-six. Amendment of writ of error. Sbo. 1005. The Supreme Court may, at any time, in its discretion, and upon such terms as it may deem just, allow an amendment of a writ of error, when there is a mistake in the teste of the writ, or a seal to the writ is wanting, or when the writ is made returnable on a day other.than the day of the commencement of the term next ensuing the issue of the writ, or when the statement of the title of the action or parties thereto in the writ is defective, if the defect can be remedied by reference to the accompanying record, and in all other particulars of form: Provided, The defect has not prejudiced, and the amendment will not Injure, the defendant in error. imendments in prize appeals. Sec. 1006. The Supreme Court may, if, in its judgment, the purposes of justice require it, allow any amendment, either in form or substance, of any appeal in prize causes. [* a. 8., p. 188.] * Supersedeas. ■ Sec. 1007. In any case where a writ STATUTES OF PRACTICAL UTILITY. xcix of error may be a supersedeas, the defendant may obtain such super- sedeas by serving the writ of error, by lodging a copy thereof for the adverse party in the clerk's office where the record remains, within sixty •days, Sundays exclusive, after the rendering of the judgment complained of, and giving the security required by law on the issuing of the citation. But if he desires to stay process on the judgment, he may, having served his writ of error as aforesaid, give the security required by law within sixty days after the rendition of such judgment, or afterward with the permission of a justice or judge of the appellate court. And in such cases where a writ of error may be a supersedeas, executions shall not issue until the expiration of [the said term of sixty] ien' days. Writs of error and appeals to Supreme Court, time for taking^. Sec. 1008. Ko judgment, decree, or order of a circuit or district court, in any civil action, at law or in equity, shall be reviewed in the Supreme Court, on writ of error or appeal, unless the writ of error is brought, or the appeal Is taken, within two years after the entry of such judgment, decree, or order: Promded, That where a party entitled to prosecute a writ of error or to take an appeal is an Infant, insane person, or imprisoned, such writ of error may be prosecuted, or such appeal may be taken, within two years after the judgment, decree, or order, exclusive of the term of such disability.' Appeals in prize causes, Tvithin that time. Sec. 1009. Appeals in prize causes shall be made within thirty days after the rendering of the decree appealed from, unless the court previously extends the time, for cause shown in the particular case : Provided, That the Supreme Court may, if in its judg- ment the purposes of justice require it, allow an appeal in any prize cause, if it appears that any notice of appeal, or of intention to appeal, was filed with the clerk of the district court within thirty days next af terthe rendition of the final decree therein. Damages and costs on affirmance in error. Sec. 1010. Where, upon a Tvrit of error, judgment is affirmed in the Supreme Court or a circuit court, the court shall adjudge to the respondents in error just damages for his delay, «nd single or double costs, at its discretion. Reversal on error limited. Sec. 1011. There shall be no reversal in the Supreme Court or in a circuit court upon a writ of error, for error in ruling £and] any' plea in abatement, other than a plea to the jurisdiction of the court, or for any error in fact. Appeals from circuit courts to Supreme Court. Sec. 1012. Appeals from the circuit courts and district courts acting as circuit courts, and from district ""courts in prize causes, shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error. Wheie both parties appeal to the Supreme Conii, one record sufficient. Sec. 1013. Where appeal is duly taken by both parties from the judgment or decree of a circuit or district court to the Supreme Court, a transcript of the record filed in the Supreme Court by either appellant may be used on both '"Ten" ia substituted for the 'See section 635. words in brackets, by way of amend- 'Error in the roll; corrected by the ment by act of Feb. 18, 1875, ch. 80, act mentioned in note 1. 18 Stat, at L., 318. C THE ENACTMENTS. appeals, and both shall be heard thereon in the same manner as if records had been filed by the appellants in both cases. [* R. S., p. 189.] * Offenders against the United States, how arrested and remoyed for trial. Sec. 1014. For any crime or offense against the United States, the offender may, by any justice or judge of the United States, or by any commissioner of a circuit court to take bail, or by any chancellor, judge of a supreme or superior court, chief or first judge of common pleas, mayor of a city, justice of the peace, or other magistrate, of any State where he may be found, and agreeably to the usual mode of process against offenders in such State, and at the expense of the United States, be arrested and imprisoned, or bailed, as the case may be, for trial before such court of the United States as by law iias cognizance of the offense. Copies of the process shall be returned as speedily as may be into the clerk's office of such court, together with the recognizances of the witnesses for their appear ance to testify in the case. And where any offender or witness is committed in any district other than that where the offense is to be tried, it shall be the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and of the marshal to execute, a warrant for his removal to the district where the trial is to be had.' Bail shall be admitted in cases not capital ; by whom. Sisc. 1015. Bail shall be admitted upon all arrests in criminal cases where the offense is not punishable by death ; and in such cases it may be taken by any of the persons authorized by the preceding section to arrest and imprison offenders. Bail may be admitted in capital cases ; by whom. Sec. 1016. Bail may be admitted upon aU arrests in criminal cases where the punishment may be death ; but in such cases it shall be taken only by the Supreme Court or a cir- cuit court, or by a justice of the Supreme , Court, a circuit judge, or a judge of a district court, who shall exercise their discretion therein, having regard to the nature and circumstance of the offense, and of the evidence, and to the usages of law. Bail in criminal cases removed by writ of error from State courts. Sec. 1017. When a writ of error is issued for the revision of the judgment of a State court, in any criminal proceeding where is drawn in question the validity of a statute of, or an authority exercised under, the United States, or where any title, right, privilege, or immunity is claimed under the Constitution, or any statute of, or commission held or authority exercised under, the United States, the defendant, if charged with an offense that is bailable by the laws of such State, shall not be released from custody until a final judgment upon such writ, or until a bond, with sufficient sureties, in a reasonable sum, as ordered and approved by the State court, is given ; and if the offense is not so baila- ble, until a final judgment upon the writ of error." Surrender of criminals by their bail. Sec. 1018. Any party charged with a criminal offense and admitted to bail, may, in vacation, be arrested by his bail, and delivered to the marshal or his deputy, before any judge or other officer having power to commit for such offense; and at the request of such bail, the judge or other officer shall recommit the party so arrested to the cus- tody of the marshal, and indorse on the recognizance, or certified copy thereof, ' See section 879. " See section 709. STATUTES OF PRACTICAL UTILITY. Cl the discharge and exoneratur of such bail ; and the party so committed shall therefrom be held in custody until discharged by due course of law. New bail to be given in certain cases. Sec. 1019. When proof is made to any judge of the United States, or other magistrate having authority to commit on criminal charges as aforesaid, that a person previously admitted to bail on any such charge is about to abscond, and that his bail is inauiiScient, the judge or magistrate shall require such person to give better security, or, for default thereof, cause him to be committed to prison; and an order for his arrest may be indorsed on the former commitment, or a new warrant therefor may be issued, by such judge or magistrate, setting forth the cause thereof. *Wiien penalty ofrecognizances may be remitted. Sec. [* jB. &, p. 190.] 1020. When any recognizance in a criminal cause, taken for, or in, or returnable to, any court of the United States, is forfeited by a breach of the condition thereof, such court may, in its discretion, remit the whole or a part of the penalty, whenever it appears to the court that there has been no wilful default of the party, and that a trial can, notwithstanding, be had in the cause, and that public justice does not otherwise require the same penalty to be enforced. Indictments and presentments to be by at least twelve gi-and jurors. Sec. 1031. No indictment shall be found, nor shall any presentment be made, with- out the concurrence of at least twelve grand jurors. Offenses against the elective franchise, how prosecuted. Sec. 1032. All crimes and offenses committed against the provisions of chapter seven. Title " Ceimes, " which are not infamous, may be prosecuted either by indictnient or by information filed by a district attorney. Matters set forth in prosecutions for perjury before a naval court-martial. Sec. 1023. In prosecutions for perjury committed on examination before a naval general court-martial, or for the subornation thereof, it shall be sufficient to set forth the offense charged on the defendant, without setting forth the authority by which the court was held, or the particular matters brought before, or intended to be brought before, said court. Charges which may be joiued in one indictment shall he so joined. Sec. 1034. When tbere are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, whicli may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts; and if two or more indictments are found in such cases, the court may order them to be consolidated. Indictments, defects of form." Sec. 1025. No indictmert found and pre- sented by a grand jury in any district or circuit court or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defend- ant. Judgment on demurrer to an indictment. Sec. 1026. In every case in any tried, or punished for any crime arising under the revenue laws, or the slave- trade laws of the United States, unless the indictment is found or the informa- tion is instituted within five years next after the committing of such crime. Penalties and forfeitures under laws of United States. Sec. 1047. No suit or prosecution for any penalty or forfeiture, pecuniary or otherwise, accruing under the laws of the United States, shall be maintained, except in cases where it is otherwise specially provided, unless the same is commenced within five years from the time when the penalty or forfeiture accrued : Tro- vided, That the person of the offender, or the property liable for such penalty or forfeiture, shall, within tbe same period, be found within the United States; so that the proper process therefor may be instituted and served against such person or property. Parties beyond reach of process during' the rebellion. Sec. 1048. In all cases where, during the late rebellion, any person could not, by reason of resistance to the execution of the laws of the United States, or of the inter- ruption of the ordinary course of judicial proceedings, be served with process for the commencement of any action, civil or criminal, which had accrued against him, the time during which such person was beyond the reach of legal process shall not be taken as any part of the time limited by law for the commencement of such action. * TITLE LIV. [* S. S. p. 904.] pmzB. Application of provisions of Title. Sec. 4613; The provisions of this Title shall apply to all captures made as prize by the authority of the United States, or adopted and ratified by the President of the United States. What are vessels of the Navy. Sbo. 4614. The term " vessels of the Navy," AS used in' this Title, shall include all armed vessels officered and manned by the United States, and under the control of the Department of the Navy. Sbo. 4615. [Prescribes the duties of commanding officer, in making a cap- ture, respecting preservation of ships papers, and sending in the prize for adjudication.] * Sec. 4616. [Prescribes mode in which commanders of [* B. S., p. 905.] vessels claiming to share iin a prize shall make and for- ward a statement of the claim.] Sec. 4617. [Prescribes duties of prize-master in bringing in the prize.] Libel and proceedings by district attorney. Sec. 4618. Upon receiving the report of the prize-master directed by the preceding section, the attorney of the United States for the district shall immediately file a libel against such prize property, and shall forthwith obtain a warrant from the court, directing the marshal to take it into his custody, and shall proceed diligently to obtain a condemnation and distribution thereof; and to that end shall see that the preparatory evidence is taken by the prize-commissioners, and that the prize-commissioners also take the deposition de bene esse of the prize-crew, cvi THE ENACTMENTS. and of other transient persons cognizant of any facts bearing on condemnation- or distribution. Duties of district attorneys. Sec. 4619. Tlie district attorneys of tlie several judicial districts shall represent the interests of the United States in all prize-causes, and shall not act as separate counsel tor the captors on any private retainer or compensation from them, unless in a question between the claiim- ants and the captors, on a demand for damages. They shall examine all fees, costs, and expenses, sought to be charged on any prize-fund, and protect the interest of the' captors and of the United States. The district attorneys of all districts in which any prize-causes are or may be pending shall, as often as once in three months, send to the Secretary of the Navy a statement of the condition of all prize-causes pending in their districts, in such form and embracing such particulars as the Secretary of the Navy shall require. Special connsel for captors. Sbc. 4620. In any case of capture made by vessels of the Navy, the Secretary of the Navy may employ special counsel for captors, when, in his judgment, the services of such special counsel are needed in the particular case, for the due protection of the interests of the captora and of the Navy-pension fund ; and, under the direction of the Secretary of the Navy, such counsel may institute and prosecute such proceefiings. in the case as may be necessary and proper for the protection of such> interests.' [* iJ. 8., p. 906.] * Appointment of prize-commissioners. SBp. 4621. Any district court may appoint prize-commissioners, not exceed- ing three in number; of whom one shall be a retired naval officer, approved by the Secretary of the Navy, who shall receive no other compensation than his pay in the Navy, and who shall protect the interests of the captors and of the Department of the Navy in the prize-property; and at least one of the others .shall be a member of the bar of the court, of not less than three years standing, and acquainted with the taking of depositions. Duties of prize-commissioners. Sbc. 4622. The prize-commissioners, or one of them, shall receive from the prize-master the documents and papers, and inventory thereof, and shall take the affidavit of the prize-master required by section forty-six hundred and seventeen, and shall forthwith take the testi- mony of the witnesses sent in, separate from each other, on interrogatories prescribed by the court, in the manner usual in prize-courts; and the witnesses- shall not be permitted to see the interrogatories, documents, or papers, or to consult with counsel, or with any persons interested, without special authority from the court; and witnesses who have the rights of neutrals shall be dis- charged as soon as practicable. The prize-commissioners shall also take depo- sitions de bene esse of the prize-crew and others, at the request of the district attorney, on interrogatories prescribed by the court. They shall also, as soon as any prize-property comes within the district for adjudication, examine the same, and make an inventory thereof, founded on an actual examination, and . report to the court whether any part of it is in a condition requiring immediate sale for the interests of all parties, and notify the district attorney thereof; and if it be necessary to the examination or making of the inventory that the ' See sections 361, 863-365, as to Government, by Department of Jus- control of counsel eniplnjed for tice. STATUTES OF PRACTICAL UTILITY. evil cargo be unladen, they shall apply to the court for an order to the marshal to unlade the same, and shall, from time to time, report to the court anything relating to the condition of the property, or its custody or disposal, which may require any action by the court, but the custody of the property shall be in the marshal only. They shall also seasonably return into court, sealed and secured from inspection, tlie documents and papers which shall come to their hands, duly scheduled and numbered, and the other preparatory evidence, and the evidence taken de bene esse, and their own inventory of the prize- property ; and ii" the captured vessel, or any of its cargo or stores, are such as in their judgment may be useful to the United States in war, they shall report the same to the Secretary of the Navy. Daties of marshal. Sec. 4633. The marshal shall safely keep all prize- property under warrant from the court, and shall report to the court any carga or other property that he thinks requires to be unladen and stored, or to be sold. He shall insure prize-property, if in his judgment it is for the interest of all concerned. He shall keep in his custody all persons found on board a prize and sent in as witnesses, until they are released by the prize-commission- ers or the court. If a sale of property is ordered, he shall sell the same in the manner required by the court, and collect the purchase-money, and forthwith deposit the gross proceeds of the sales with the assistant treasurer of the United States nearest the place of sale, subject to the order of the court in the particular cause; and each marshal shall forward to the Secretary of the Navy, whenever and as often as the Secretary of the Navy may require it, a full state- ment of the condition of each prize and of the disposal made thereof. Sec. 4624. [Provides for an appraisal, &c., of any prize-property which may be required to be taken for use of the Government, before it comes into the custody of the prize court.] * Proceedings for adjudication where property is not sent [* R. 8., p. 907.] • in. Skc. 4635. If by reason of the condition of the captured property, or if because the whole has been appropriated to the use of the United States, no part of it has been or can be sent in for adjudication, or if the property has been entirely lost or destroyed, proceedings for adjudication may be com- menced in any district the Secretary of the Navy may designate; and in any such case the proceeds of anything sold, or the value of anything taken or appropriated for the use of the United States, shall be deposited with the assistant treasurer in or nearest to that district, subject to the order of the court in the cause. If, when no property can be sent in for adjudication, the Secretary of the Navy shall not, within tliree months after any capture, designate a district for the institution of proceedings, the captors may institute proceedings for adjudication in any district. And if in any case of capture no proceedings for adjudication are commenced within a reasonable time, any parties claiming tlje captured property may, in any district court as a court of prize, move for a monition to show cause why such proceedings shall not be commenced, or institute an original suit in such court for restitution, and the monition issued in either case shall be served on the attorney of the United States for the district, and on the Secretary of the Navy, as well as on such other persons as the court shall order to be notified. Delivery of property on stipulation. Sec. 4626. No prize-property shall be delivered to the claimants on stipulation, deposit, or other security, except cviii THE ENACTMENTS. ■where there has been a decree of restitution and the captors have appealed there- from, or where the court, after a full hearing on the preparatory proofs, has refused to condemn the property on those proofs, and has given the captors leave to take further proofs, or where the claimant of any property shall satisfy the court that the same has a peculiar and intrinsic value to him, independent of its market-value. In any of these cases, the court may deliver the property on stipulation or deposit of its value, if satisfied that the rights and interests of the United States and captors, or of other claimants, will not be prejudiced thereby; but a satisfactory appraisement shall be first made, and an opportu- nity given to the district attorney and naval prize-commissioner, to be heard as to the appointment of appraisers. Any money deposited in lieu of stipulation, and all money collected on a stipulation, not being costs,- shall be deposited with the assistant treasurer, in the same manner as proceeds of a sale. When property may be sold. Bkc. 4637. Whenever any prize-property is condemned, or at any stage of the proceedings is found by the court to be perishing, perishable, or liable to deteriorate or depreciate, or whenever the costs of keeping the same are disproportionate to its value, the court shall order a sale of such property; and whenever, after the return-day on the libel, all the parties in interest who have appeared in the cause agree thereto, the court may make such order; and no appeal shall operate to prevent the mak- ing or execution of such order. Mode of making sale. Sec. 4638. Upon a sale of any prize-property by order of the court, the Secretary of the Navy shall employ an auctioneer of known skill in the branch of business to which any sale pertains, to make the sale, but the sale shall be conducted under the supervision of the marshal, and the collecting and depositing of the gross proceeds shall be by the auctioneer or his agent. Before any sale the marshal shall cause full catalogues and schedules to be prepared and circulated, and a copy of each shall be returned by the marshal to the court in each cause. The marshal shall cause all sales to be advertised fully and conspicuously in newspapers ordered by the court, and by posters, and be shall, at least five days before the sale, serve notice thereof upon the naval prize commissioner, and the goods shall be open to inspection! at least three days before the sale. [* B. 8., p. 908.] * Transfer of property to iuiother district for sale. Sec. 4639. Whenever it appears to the court, in the case of any prize-property ordered to be sold, that it will be for the interesl of all parties to have it sold in another district, the court may direct the marshal to transfer the same to the district selected by the court for the sale, and to insure the same, with proper orders as to the time and manner of selling the seme. It shall be the duty of the marshal so to transfer the property, and keep and sell the same in like manner as if the property were in his own dis- trict; and he shall deposit the gross proceeds of the sale with the assistant treasurer nearest to the place of sale, subject to the order of the court in which the adjudication thereon is pending. The necessary expenses' attending tbe insuring, transferring, receiving, keeping, and selling the property shall be a charge upon it and upon the proceeds tl»ereof ; and whenever any such expense is paid in advance by the marshal, and he is not repaid from the proceeds, any amount not so repaid shall be allowed to him, as in case of expenses incurred :n suits in which the United States is a party. The Secretary of the Navy STATUTES OF PRACTICAL UTILITY. cix may, in li^e manner, either by a general regulation or by special direction in any cause, require a marshal to transfer any prize-property from the district in ■which the judicial proceedings are pending, to any other district for sale ; and the same proceedings shall be had as. if such transfer had been made by order- of the court. ' Shore of captors. Sec. 4630. The net proceeds of all property condemned as prize, shall, when the prize was of superior or equal force to the vessel or vessels making the capture, be decreed to the captors; and when of inferior force, one-half shall be decreed to the United States and the other half to the captors, except that in case of privateers and letters of marque, the whole shall be decreed to the captors, unless it shall be otherwise provided in the commis- sions issued to such vessels. Sec. 4631. [Prescribes the proportions in which prize-money shall be dis- tributed among captors.] What vessels are entitled to share. Sec. 4633. All vessels of the Navy within signal-distance of the vessel or vessels making the capture, under such circumstances and in such condition as to be able to render effective aid, if required, shall share in the prize ; and in case of vessels not of the Navy, none shall be entitled * to share except the vessel [* iJ. iS., p. 909.]: or vessels making the capture; in which term shall be included vessels present at and rendering actual assistance in the capture. What officers are entitled to share. Sec. 4633. No commanding officer of a fleet or squadron shall be entitled to receive any share of prizes captured by any vessel or vessels not under his command, nor of such prizes as may have been captured by any vessel intended to be placed under his command, before they have acted under his orders. Nor shall the commanding officer of a fleet or squadron, leaving the station where he had command, have any share in the prizes taken by ships left on such station after he has gone out of the limits of his command, nor after he has transferred his command to his successor. No offi- cer or other person who shall have been temporarily absent on duty from a ves- sel on the books of which he continued to be borne, while so absent, shall be deprived, in consequence of such absence, of any prize-money to which he would otherwise be entitled. And he shall continue to share in the captures of the vessels to which he is attached, until regularly discharged therefrom. Determination of shares. Sbo. 4634. Whenever a decree of condemnation is rendered, the court shall consider the claims of all vessels to participate in the proceeds, and for that purpose shall, at as early a stage of the cause as pos- sible, order testimony to be taken tending to show what part should be awarded to the captors, and what vessels are entitled to share ; and such testi- mony may be sworn to before any judge or commissioner of the courts of the United States, consul or commercial agent of the United States, or notary pub- lic, or any officer of the Navy highest in rank, reasonably accessible to the de- ponent. The court shall make a decree of distribution, determining what ves- sels are entitled to share in the prize, and whetter the prize was of superior, equal, or inferior force to the vessel or vessels making the capture. The de- cree shall recite the amount of the gross proceeds of the prize subject to the " See section 5441, for punish- captor or claimant, &c., of prize ment for delaying or defrauding a property. ex THE ENACTMENTS. order of the court, and the amount deducted tharefrom for costs and expenses, and the amount remaining for distribution, and whether the whole of such residue is to go to the captors, or one-half to the captors, and one-half to the United States. Sec. 4635. [Authorizes a bounty to be paid for persons on enemy's vessels sunk or destroyed.] Appeals and amendments in prize-cases. Sec. 4636. The Supreme Court may, if, in its judgment, the purposes of justice require it, allow any amend- ment, either in form or substance, of any appeal in prize-cases, or allow a prize appeal therein, if it appears that any notice of appeal or of intention to appeal was filed with the clerk of the district court within thirty days next after the rendition of the final decree therein. Powers of district attorney after appeal. Sbo. 4637. Notwithstanding any appeal to the Supreme Court, the district court may make and execute all nec- essary orders for the custody and disposal of the prize-property; and in case of appeal from a decree of condemnation, may still proceed to make a decree of distribution so far as to determine what share of the prize shall go to the cap- tors, and what vessels are entitled to participate therein. [* B. S., p. 910.] * Secnrity for costs. Sec. 4638. The court may require any party, at any stage of the cause, and on claiming an appeal, to give security for costs. Costs and expenses. Sec. 4689. All costs and all expenses incident to the bringing in, custody, preservation, insurancs, sale, or other disposal of prize- property, when allowed by the court, shall be a charge upon such property, and shall be paid from the proceeds thereof, unless the court shall decree resti- tution free from such charge. Payment of expenses from prize-fund. Seo. 4640. No payment shall be made -for any prize-fund, except upon the order of the court. All charges for work and labor, materials furnished, or money paid, shall be supported by affidavit or vouchers. The court may, at any time, order the payment, from the deposit made with the assistant treasurer in the cause, of any costs or charges accrued and allowed. When the cause is finally disposed of, the court shall make its order or orders on the assistant treasurer to pay the costs and charges allowedn and unpaid ; and in case the final decree shall be for restitution, or in case there shall be no money subject to the order of the court in the cause, any costs or charges allowed by the court, and not paid by the claimants, shall be a charge upon, and be paid out of, the fund for defraying the expenses of suits in which the United States is a party or interested. Sec. 4641. [Prescribes the manner of making payment of prize money, among the persons adjudged to be entitled ; also of ransom money, salvage, bounty or proceeds of condemned property.] Assignments, &c., of prize-money and bounty. Sec. 4643. Every assign- ment of prize or bounty money due to persons enlisted in the naval service, and all powers of attorney or other authority to draw, receipt for, or transfer the same, shall be void, unless the same be attested by the captain, or other commanding officer, and the paymaster. Sec 4644. [Requires clerks of district courts to render accounts of distribu- tion of prize moneys ; and forward copies of decrees of distribution to Secre- taries of the Treasury, and Navy; and prescribes his fees tlierefor.] STATUTES OF PRACTICAL UTILITY. cxi * Allowances and commissions to marshals. Sec. 4645. [* J?. S., p. 911.] The marshal shall be allowed his actual and necessary expenses for the custody, care, preservation, insurance, sale, or other disposal of the prize-property, and for executing any order of the court respecting the same, and shall have a commission of one-quarter of one per centum on vessels, and of one-half of one per centum on all other prize-property, calculated on tlie gross proceeds of each sale; and if, after he has had any prize-property in his custody, and has actually performed labor and incurred responsibility for the care and preservation thereof the same is taken by the United States for its own use without a sale, or if it is delivered on stipulation to the claimants, he shall, in case the same is condemned, be entitled to one-half the above commissions on the amount deposited by the United States to the order of the courts, or collected upon the stipulation. No charges of the marshal for expenses or disbursements shall be allowed, except upon his oath that the same have been actually and necessarily incurred for the purpose stated. Sbo. 4646, 4647. [Kegulate compensation and official accounts of district attorneys and prize commissioners for services in prize causes,] Compensation of special counsel. Sbc. 4648. The court may allow such compensation as it deems just under the circumstances of each case to any special counsel for captors, not being the district attorney or any of his assis- tants, whether appointed by an Executive Department or by captors, for ser- vices actually rendered in the cause, to be paid as costs, in whole or in part, either from the entire fund or from the portion awarded to the captors; but no such allowance shall be made, except for services rendered on matters as to' which the party the counsel represents has an adverse interest to the United States, or an interest otherwise proper in the opinion of the court to be repre- sented by special counsel, or for services rendered in a contestation between parties claiming to participate in the distribution of the proceeds. Sbc. 4649. [Declares fees of special counsel in certain prize-cases to be a charge upon, and paid out of, the funds appropriated for defraying the expenses of suits in which the United States is a party or interested.] Commissions of auctioneers. Sec. 4650. The auctioneers employed to make sales of prize-property shall be entitled to receive commissions by a scale to be established by the Secretary of the Navy, not to exceed, in any case, one-half of * one per centum on any [* 5. S,, p. 913.] sum exceeding ten thousand dollars on vessels, nor one per centum on that sum on other prize-property, which shall be in full for expenses, as well as for services; and incase no such scale shall be established, they shall be entitled to receive such compensation as the court shall deem just under the circumstances of each case. Payment of fees of witnesses. Sec. 4651. Whenever the court shall allow fees to any witness in a prize-cause, or fees for taking evidence out of the dis-^ trict in which the court sits, and there is no money subject to its order in the cause, the same shall be paid by the marshal, and shall be repaid to him from any money deposited to-the order of the court in the cause; and any amount not so repaid the marshal shall be allowed as witness-fees paid by him in cases in which the United States is a party. Recaptures. Sec 4652. When any vessel or other property shall have been captured by any force hostile to the United States, and shall be recaptured. cxii THE EJSIACTMENTS. and it shall appear to the court that the same had not been condemned a» prize before its recapture, by any competent authority, the court shall award a meet and competent sum as salvage, according to the circumstances of each case. If the captured property belonged to the United States, it shall be restored to the United States, and there shall be paid from the Treasury of the United States the salvage, costs, and expenses ordered by the court. If the recaptured property belonged to persons residing within or under the protec- tion of the United States, the court shall adjudge the property to be restored to its owners, upon their claim, on the payment of such sum as the court may award as salvage, costs, and expenses. If the recaptured property belonged to any person permanently resident within the territory and under the protection of any foreign prince, government, or state in amity with the United States, and by the law or usage of such prince, government, or state, the property of a citizen of the United States would be restored under like circumstances of recapture, it shall be adjudged to be restored to such owner, upon his claim, upon such terms as by law or usage of such prince, government, or state would be required of a citizen of the United States under like circumstances of recap- ture; or when no such law or usage shall be known, it shall be adjudged to be restored upon the payment of such salvage, costs, and expenses as the court shall order. The whole amount awarded as salvage shall be decreed to the- captors, and no part to the United States, and shall be distributed as in the case of proceeds of property condemned as prize. Nothing in this Title shall be construed to contravene any treaty of the United States, [* B. S., p. 969.] * TITLE LXI. BAUKBtrPTCT.' CHAPTER ONE. COTJBTS or BAMISRTJPTCT, THEIR JUEISDICTION, ORGANIZATION, AND POWERS. Scope of the Jurisdiction of conrts of bankruptcy. Sec. 4972. The jurisdic- tion conferred upon the district courts as courts of bankruptcy shall extend* ' Contemporaneously with the pas- was not, in so far as it was dependent sage of the act of June 33, 1874, ch. upon a law that had been repealed, 390, amending by specific reference, a nullity, for want of anything to the bankrupt act of 1867, Congress which its references could be applied, enacted a complete substitute for the These difficulties are somewhat height- act of 1867, in Title 61 of the Revised ened by the enactment, April 14, Statutes, and repealed the act, in 1876, of a law also referring to the common with other general and per- act of 1867 as an existing law. manent acts. Such methods of legis- The view which appears to have lation might well raise perplexing been generally taken upon this sub-^ questions: such as, whether the spe- ject seems to be, that the various cific reference to the act of 1867 as provisions of the amendatory act are an existing law, did not save it from to be applied by judicial construction, the general repeal; or revive it, if and according to the apparent intent repealed ; or did not at least revive of Congress, to the provisions in the the particular and distinct provisions Revised Statutes which correspond declared amended; or upon the other with and are substituted for, the pro- hand, whether the amendatory act visions of the act of 1867. The foimal STATUTES OF PRACTICAL UTILITY. cxiii First. To all cases and controversies arising between the bankrupt and any creditor or creditors who shall claim any debt or demand under the bank- ruptcy. Second. To the collection of all the assets of the hankrupt. Third. To the ascertainment and liquidation of the liens and other specific claims thereon. Fourth. To the adjustment of the various priorities and conflicting inter- ests of all parties. Fifth. To the marshaling and disposition of the different funds and assets, so as to secure the rights of all parties and due distribution of the assets among all the creditors. Sixth. To all acts, matters, and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt, and the close of the proceedings in bankruptcy: Provided, Thai the court having charge of the estate of any banhrupt may direct that any of the legal assets or debts of the banhrupt, as contradistinguished from equitable demands, shaU, when such debt does not exceed five hundred dollars, be collected in the courts of the State where sxich banJcrupt resides having such jvrisdiction qf claims of such nature and amount.^ •Authority of district courts and judges. Sec. 4973. [* R. 8., p. 970.] The district courts shall be always open for the transac- tion of business in the exercise of their jurisdiction as courts of bankniptcy; and their powers and jurisdiction as such courts shall be exercised as well in vacation as in term time; and a judge sitting at chambers shall have the same powers and jurisdiction, including the power of keeping order and of punishing any contempt of his authority, as when sitting in court. Sessions of the district courts. Sec. 4974. A district court may sit for the transaction of business in bankruptcy, at any place within the district, of which place and of the time of commencing session the court shall have given notice, as well as at the places designated by law for holding sessions of such court. Power of district courts to compel obedience. Sec. 4975. The district courts as courts of bankruptcy shall have full authority to compel obedience to all orders and decrees passed by them in banliruptcy, by process of con- tempt and other remedial process, to the same extent that the circuit courts now have in any suit pending therein in equity. Powers of circuit judge during absence, sickness, or disability of district judge. Sbo. 4976. In case of a vacancy in the oflSce of district judge in any dis- trict, or in case any district judge shall, from sickness, absence, or other disability, be unable to act, the circuit judge of the circuit in which such district is included may make, during such disability or vacancy, all necessary rules and orders reference by title of act and num- In accordance with this view we ber of section is to be disregarded; have modified the text of the Revised and the substance of the provision is Statutes to conform to the amenda- to be sought in the itevised Statutes, tory act of 1874, in the same manner and the amendment applied to that, as would have been done had that act See The General Orders in Bank- made reference to Title 61 as the law ruptcy; Re Oregon Bulletin Pnblish- in the legislative intent, ing and Pi-inting Co., 13 Nat. Bank. ' Added by act of June 23, 1874, Seg., 200; 11 Am. Law Rev., 181. § 2. Vol-. I.— H cxiv THE ENACTMENTS. preparatory to the final hearing of all causes in bankruptcy, and cause the same to be entered or issued, as the case may require, by the clerk of the dis- trict court. Powers of the supreme court for the Disti-ict of Columbia. Sbc. 4977. The same jurisdiction, power, and authority which are hereby conferred upon the district courts in cases in bankruptcy are also conferred upon the supreme court of the District of Columbia, when the bankrupt resides in that District. Powers of the supreme coiu-ts for the Territories. Sec. 4978. The same jurisdiction, power, and authority which are hereby conferred upon the district courts in cases in bankruptcy are also conferred upon the [supreme courts] district courts ' of the several Territories, subject to the general superintendence and jurisdiction conferred upon circuit courts by section four thousand nine hundred and eighty-six,^ when tlie bankrupt resides in either of the Territories. This jurisdiction may be exercised, upon petitions regularly filed in such courts, by either of the justices thereof while holding the district court in the district in which the petitioner or the alleged bankrupt resides. Jurisdiction of actions between assignees and persons clainiins: adverse interests. Seo. 4979. The several circuit courts shall have within each dis- trict concurrent jurisdiction with the district court," whether the powers and jurisdiction of a circuit court have been conferred on such district court or not, of all suits at law or in equity brought by an assignee in bankruptcy against any person claiming an adverse interest or owing any debt to such banlerupt, ^ or by any such person against an assignee, touching any property or rights of the bankrupt transferable to or vested in such assignee. Appeals to circuit court, Sec. 4980. Appeals may be taken from the dis- trict to the circuit courts in all cases in equity, and writs of error from the circuit courts to the district courts may be allowed in cases at law, ai-ising under or authorized by this Title, when the debt or damages claimed amount to more than five hundred dollars; and any supposed creditor, whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allow- ance of a claim, may appeal from the decision of the district court to the circuit court for the same district. « How taken. Sec. 4981. No appeal shall be allowed in any case from the district to the circuit court unless it is claimed, and notice given thereof to the clerk of the district court, to be entered with the record of the proceed- ings, and also to the assignee or creditor, as the may be, or to the defeated party in equity, within ten days after the entry of the decree or decision appealed from ; nor unless the appellant at the time of [* B. S., p. 971.] * claiming the same shall give bond in the manner required in cases of appeals in suits in equity; nor shall any writ of error be allowed unless the party claiming it shall comply with the provisions of law regulating the granting of such writs. How entered. Seo. 4983. Such appeal shall be entered at the term of the ■ As amended, act of June 23, 1874, should follow "the district court." 16. See Td., § 3. " Query, whether of any district ' Added by act of June 23, 1874, §3 STATUTES OF PRACTICAL UTILITY. cxv ■circuit court which shall be held within the district next after the expira- tion of ten days from the time of claiming the same. Waiver of appeal. Sec. 4983. If the appellimt, in writing, waives his appeal before any decision thereon, proceedings may be had in the district court as if no apjoeal had been taken. Appeal from decision rejecting ciniiii. Sec. 4984. A supposed creditor who takes an appeal to the circuit court from the decision of the district court, rejecting his claim in whole or in part, shall, upon entering his appeal in the circuit court, file in the clerk's ofSce thereof a statement in writing of his claim, setting forth the same, substantially, as in a declaration for the same • cause of action at law, and the assignee shall plead or answer thereto in like manner, and like proceeding shall thereupon be had in the pleadings, trial, and determination of the cause, as in actions at law commenced and prosecu- ted, in the usual manner, in the courts of the United States, except that no execution shall be awarded against the assignee for the amount of a debt found due to the creditor. Costs. Sec. 4985. The final judgment of the circuit court, rendered upon any appeal provided for in the preceding section, shall be conclusive, and the list of debts shall, if necessary, be altered to conform thereto. The party pre- vailing in the suit shall be entitled to costs against the adverse party, to be taxed and recovered as in suits at law ; if recovered against the assignee, they shall be allowed out of the estate. Power of general superiutendenee conferred on circuit court. Sec. 4986. The circuit court for each district shall have a general superintendence and jurisdiction of all cases and questions arising in the district court for such dis- trict when sitting as a court of bankruptcy, whether the pqwers and jurisdic- tion of a circuit court have been conferred on such district court or not; and except when special provision is othei'wise made, may, upon bill, petition, or ■other proper process, of any party aggrieved, hear and determine the case as in a court of equity; and the powers and jurisdiction hereby granted may be exercised either by the court in term time, or, in vacation, by the circuit justice or by the circuit judge of the circuit. Superintendence by supreme courts of Territories. Sec. 4987. The several supreme courts of the Territories shall have the same general superin- tendence and jurisdiction over the acts and decisions of the justices thereof in cases of bankruptcy as is conferred on the circuit courts over proceedings in the district courts. Power of district judge in a district not within any organized circuit. Sec. 4988. In districts which are not within any organized circuit of the United States, the power and jurisdiction of a circuit court in bankruptcy m.jy be exercised by the district judge. Appeal and writ of error to Supreme Court. Sec. 4989. No appeal or writ of error shall be allowed in any case arising under this Title from the circuit courts to the Supreme Court, unless the matter in dispute in such case exceeds two thousand dollars. * Supreme Court may prescribe rules. Sec. 4990. The [* .B. &, p. 973.] general orders in bankruptcy heretofore adopted by the jus- tices of the Supreme Court, as now existing, may be followed in proceedings under this Title; and the justices may, from time to time, subject to the pro- cxvi THE ENACTMENTS. visions of this Title, rescind or vary any of those general orders, and may frame, rescind, or vary other general /Orders, for the following purposes: First. For regulating the practice and procedure of the district courts in bankruptcy, and the forms of petitions, orders, and other proceedings to be used in such courts in all matters under this Title. Second. For regulating the duties of the various officers of such courts. Third. For regulating the fees payable and the charges and costs to be allowed, [except such as are established by this Title or by law, '] with respect to all proceedings Ln bankruptcy before such courts, not exceeding the rate of fees now allowed by law for similar services in other proceedings. Fourth. For regulating the practice and procedure upon appeals. Fifth. For regulating the filing, custody, and inspection of records. Sixth. And generally for carrying the provisions of this Title into effect. All such general orders shall from time to time be reported to Congress^ with such suggestions as the justices may think proper. What constitutes commeucenient of proceedings. Sec. 4991. The filing of the petition for an adjudication in bankruptcy, either by a debtor in his own behalf, or by any creditor against a debtor, shall be deemed to be the com- mencement of proceedings in bankruptcy. Records of bankruptcy proceedings. Sbo. 4993. The proceedings in all cases of bankruptcy shall be deemed matters of record, but the same shall not. be required to be recorded at large, but shall be carefully filed, kept, and numbered in the office of the clerk of the court, and a docket only, or short memorandum thereof, kept in books to be provided for that purpose, which shall be open to public inspection. Copies of such records, duly certified under the seal of the court, shall in all cases be presumptive evidence of the facts therein stated. Registers in bankruptcy. Sec. 4993. Each district judge shall appoint, upon the nomination and recommendation of the Chief Justice of the Supreme Court, one or more registers in bankruptcy, when any vacancy occurs in such office, to assist him in the performance of his duties, under this Title, unless he shall deem the continuance of the particular office unnecessary. . Who are elisiible. Sec. 4994. No person shall be eligible for appointment as register in bankruptcy, unless he is a counselor of the district court for the district in which he is appointed, or of some one of the courts of record of the State in which he resides. Qualifleatiou. Sec. 4995. Before entering upon the duties of his office, every person appointed a register in bankruptcy shall give a bond to the United States, for the faithful discharge of the duties of his office, in a sum not less than one thousand dollars, to be fixed by the district judge, with sureties satisfactory to such judge; and he shall, in open court, take and sub- scribe the oath prescribed in section seventeen hundred and fifty-six. Title, '■Provisions applicable to sevbeal classhs of officers," and also an oath that he will not, during his continuance in office, be, directly or indirectly, interested in or benefited by the fees or emoluments arising from any suit or matter pending in bankruptcy, in either the district or circuit court in his district. ' Repealed by Act of .Tune 32, 1874, § 18. STATUTES OF PRACTICAL UTILITY. cxvii Kestrietions upon registers. Sec. 4996. No register shall be counsel or attorney, either in or out of court, in any suit or matter pending in bank- ruptcy in either the circuit or district court of his district, nor in an appeal -therefrom; nor shall he be executor, administrator, guardian, commis- sioner, appraiser, divider, or assignee of or upon any estate within the jurisdic- tion of either of those courts as courts of bankruptcy, nor shall he be interested in the fees or emoluments arising from any such trusts. ■ * EemoTal of registers. Sec. 4997. Registers are sub- [* B. 8., p. 973.] ject to removal from office by the judge of the district court. Powers of registers. Sec. 4998. Every register in bankruptcy has power: First. To make adjudication of bankruptcy in cases unopposed. Second. To receive the surrender of any bankrupt. Third. To administer oaths in all proceedings before him. Fourth. To hold and preside at meetings of creditors. Fifth. To take proof of debts. Sixth. To make all computations of dividends, and all orders of distribu- tion. Seventh. To furnish the assignee with a certified copy of such orders, and of the schedules of creditors and assets filed in each case. Eighth. To audit and pass accounts of assignees. Ninth. To grant protection. Tenth. To pass the last examination of any bankrupt in cases whenever the assignee or a creditor do not oppose. Eleventh. To sit in chambers and dispatch there such part of the adminis- trative business of the court and such uncontested matters as shall be defined in general rules and orders, or as the district judge shall in any particular matter direct. Limitations upon powers of registers. Sec. 4999. No register shall have power to commit for contempt, or to make adjudication of bankruptcy when op- posed; or to decide upon the allowance or suspension of an order of discharge. Registers to keep memoranda of proceedings. Sec. 5000. Every register shall make short memoranda of his proceedings in each case in which he acts, in a docket to be kept by him for that purpose, and shall forthwith, as the proceedings are taken, forward to the clerk of the district court a certified copy of these memoranda, which shall be entered by the clerk in the proper minute-book to be kept in his office. Registers to attend at place directed by judge. Sec. 5001. The judge of the district court may direct a register to attend at any place within the dis- trict for the purpose of hearing such voluntary applications under this Title as may not be opposed, of attending any meeting of creditors, or receiving any proof of debts, and, generally, for the prosecution of any proceedings under this Title. Power to summon witnesses. Sec. 5003. Every register, so acting, shall have and exercise all powers, except the power of Commitment, vested in the district court for the summoning and examination of persons or witnesses, «nd for requiring the production of books, papers, and documents. Mode of tailing evidence. Sec. 5003. Evidence or examination in any of the proceedings under this Title may be taken before the court, or a register in cxviii THE ENACTMENTS. bankruptcy, viva voce or in writing, before a commissioner of the circuit court, or by affidavit, or on commission, and the court may direct a reference- to a register in bankruptcy, or other suitable person, to take and certify such examination, and may compel the attendance of witnesses, the production of books and papers, and the giving of testimony in the same manner as in suits in equity in the circuit court. Depositions and acts to be reduced to writing. Sec. 5004. All depositions of persons and witnesses taken before a register, and all acts done by him, shall be reduced to writing, and be signed by him, and shall be filed in the clerk's office as part of the proceedings. He shall have power to administer oaths in all cases and in relation to all matters in which oaths may be admin- istered by commissioners of circuit courts. Witnesses must attend. Sec. 5005. Parties and witnesses summoned be- fore a register shall be bound to attend in pursuance of such summons at the place and time designated therein, and shall be entitled to protection, and he- liable to process of contempt in like manner as parties and witnesses are now liable thereto ia case of default in attendance under any writ of sub- poena. [*iJ. j9.j p. 974.] * Contempt before register. Sec. 5006. Whenever any person examined before a register refuses or declines to- answer, or to swear to or sig-n Ms examination when taken, the register shall refer the matter to the judge, who shall have power to order the person so act- ing to pay the costs thereby occasioned, and to punish him for contempt, if such person be compellable by law to answer such question or to sign such examination.. Registers may act for each other. Sec. 5007. Any register may act in the place of any other register appointed by and for the same district court. Payment of fees of registers. Sec. 5008. The fees of registers, as estab- lished by law or by rules and orders framed pursuant to law, shall be paid to- them by the parties for whom the services may be rendered. Contested issues to be decided by judge. Sec. 5009. In all matters where- an issue of fact or of law is raised and contested by any party to the proceed- ings before any register, he shall cause the question or issue to be stated by the opposing parties in writing, and he shall adjourn the same into couM for decision by the judge. Certificates of matters to be decided by judge. Sec. 5010. Any party shall, during the proceedings before a register, be at liberty to take the opinion of the district judge upon any point or matter arising in the course of such pro- cetdings, or upon the result of such proceedings, which shall be stated by the register in the shape of a short certificate to the judge, who shall sign the same if he approve thereof ; and such csrtificate, so signed, shall be binding on all the parties to the proceeding : but every such certificate may be discharged or varied by the judge at chambers or in open court. Appeal from judge's decision upon questions submitted. Sec. 5011. In any proceedings within the jurisdiction of the court, under this Title, the parties concerned, or submitting to such jurisdiction, may at any stage of the proceed- ings, by consent, state any questions in a special case for the opinion of the court, and the judgment of the court shall be final unless it is agreed and stated in the special case that either party may appeal, if, in such case, an appeal is allowed by this Title. The parties may also, if they think fit, agree^ STATUTES OF PRACTICAL UTILITY. cxix that upon the questions raised by such special case being finally decided, a sum of money, fixed by the parties, or to be ascertained by the court, or in such manner as the court may direct, or any property, or the amount of any disputed debt or claim, shall be paid, delivered, or transferred by one of such parties to the other of them, either with or without costs. Penalties against ofilcers. Sec. 5013. If any judge, register, clferk, mar- shal, messenger, assignee, or any other officer of the several courts of bank- ruptcy shall, for anything done- or pretended to be done under this Title, or under color of doing anything thereunder, wilfully demand or take, or appoint or allow any person whatever to take for him or on his account, or for or on account of any other person, or in trust for him or for any other person, any fee, emolument, gratuity, sum of money, or anything of value whatever, other, than is allowed by law, such person shall forfeit and pay a sum mot less than three hundred dollars and not more than five hundred dollars, and be impris- oned not exceeding three years. Meaning of terms and compatation of time. Sec. 5013. In this Title the word " assignee," and the word "creditor," shaU include the plural also; and the word " messenger," shall include Ms assistant or assistants, except in the provision for the fees of that officer. The word " marshal," shall include the marshal's deputies; theword " person " shall also include " corporation ; " and the word " oath " shall include " affirmation." And in all cases in which any particular number of days in prescribed by this Title, or shall be mentioned in any rule or order of court or general order which shall at any time be made under this Title, for the doing of any act, or for any other purpose, the same shall be reckoned, in the absence of any expression to the contrary, exclusive of the first and inclusive of the last day, * unless the last day shall fall on Sunday, Christmas Day, or on any day [* S. S., p. 975.] appointed by the President of the United States as a day of public fast or thanksgiving, or on the Fourth of July, in which case the time shall be reckoned exclusive of that day also. CHAPTER TWO. TOLITNTAKT BANKBTTPTCT. Petition and schedules. Sec. 5014. If any person residing within the jurisdiction of the- United States, and owing debts provable in bankruptcy exceeding the amount of three hundred dollars, shall apply by petition addressed to the judge of the judicial district in which such debtor has resided or carried on business for the six months next preceding the (ime of filing such petition, or for the longest period during such six months, setting forth his place of residence, his inability to pay all his debts in full, his willingness to surrender all his estate and efiects for the benefit of his creditors, and his desire to obtain a discharge from his debts, and shall annex to his petition a schedule and inventory, in compliance with the next two sections, the filing of such petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt. Schedule of debts. Sec. 5015. The said schedule must contain a full and true statement of all his debts, exhibiting, as far as possible, to whom each debt is due, the place of residence of each creditor, if known to the debtor, and if not known the fact that it is not known ; also the sum due to each rrad- CXX . THE ENACTMENTS. itor; the nature of each debt or demand, whether founded on written security, obligation, or contract, or otherwise; the true cause and consideration of the indebtedness in each case, and the place where such indebtedness accrued ; and also a statement of any existing mortgage, pledge, lien, judgment, or col- lateral or other security given for the payment of the same. Inventoryof property. Sec. 5016. The said inventory must contain an accurate statement and valuation^ of all the petitioner's estate, both real and personal, assignable under this Title, describing the same and stating where it is situated, and whether there are any, and, if so, what incumbrances thereon. Oath to petition and schedule. Sbc. 5017. The schedule and inventory and tialiMtwn ' must be verified by the oath of the petitioner, which may be taken either before the district judge, or before a register, or before a commis- sioner of the circuit court. Oath of alleg'iance. Sec. 5018. Every citizen of the United States petition- ing to be declared barkrupt shall, on filing his petition, and before any pro- ceedings thereon, take and subscribe an oath of allegiance and fidelity to the United States, which oath may be taken before either of the officers mentioned in the preceding section, and shall be filed and recorded with the proceedings in bankruptcy. Warrant to marshal. Sec. 5019. Upon the filing of such petition, sche- dule, and inventory, the judge or register shall forthwith, if he is satisfied that the debts due from the petitioner exceed three hundred dollars, is.'iue a warrant, to be signed by such judge or register, directed to 'the marshal for the district, authorizing him forthwith, as messenger, to publish notices in such newspapers [as the warrant specifies] ; as the marshal shall select, not exceeding two ;' to serve written or printed notice, by mail or personally, on all creditors upon the schedule filed with the debtor's petition, or [* a. S., p. 976.] whose names may be given to him in addition by * the debtor; and to give such personal or other notice to any persons concerned as the warrant specifies. But whenever the creditors of the banhrupt are so numerous as to make any notice now required by law, to them, by mail or otherwise, a great and disproportionate expense to the estate, the court may, in lieu thereof, in its discretion, order such notice to be given by publication in a newspaper or newspapers, to all such creditors whose claims, as reported, do not exceed the sums, respectively, of fifty dollars. ' Amendment of schedule. Sec. 5020. Every bankrupt shall be at liberty, from to time, upon oath, to amend and correct his schedule of creditors and property, so that the same shall conform to the facts. CHAPTER THREE. INVOLTTNTAHY BANKBUPTCT. Sec. 5031. [Defines aJts of bankruptcy; but appears superseded by section twelve of the amendatory act of 1874, post, p. .] [* B. S., p. 977.] Prior acts of bankruptcy. Sec. 5033. Any act of bank- ' These changes seem to carry out ' As amended, act of June 23, 1874, the intent of act of June 33, 1874, § § 5. 15. 'Added by act of June 33, 1874, §5. STATUTES OF PRACTICAL UTILITY. cxxi Tuptoy committed since the second day of March, eighteen hundred and sixty- seven, may be the foundation of an adjudication of involuntary bankruptcy, upon a petition filed within the time prescribed by law, equally with one com- mitted hereafter. Sbc. 5033. [Declares who may file a petition in involuntary bankruptcy; but appears superseded by section 12 of the amendatory act of 1874, 'post, p. .] Proceedings after filing the petition. Sbc. 5024. Upon the filing of the petition authorized by the preceding section, if it appears that sufficient grounds exist therefor, the court shall direct the entry of an order requiring the debtor to appear and show cause, at a court of bankruj)tcy to be holden at a time to be specified in the order, not less than five days from the service thereof, why the prayer of the petition should not be granted. The court may also, by injunction restrain the debtor, and any other person, in the mean time, from making any transfer or disposition of any part of the debtor's property not excepted by this Title from the operation thereof and from any interference therewith ; and if it shall appear that there is probable cause for believing that the debtor is about to leave the district, or to remove or conceal his goods and chattels or his evidence of property, or to make any fraudulent conveyance or disposition thereof, the court may issue a warrant to the maishal of the dis- trict, commanding him to arrest and safely keep the alleged debtor, unless he shall give bail to the satisfaction of the court for his appearance from time to time, as required by the court, until its decision upon the petition, or until its further order, and forthwith to take possession provisionally of all the prop- erty and efiects of the debtor, and safely keep the same until the further order of the court. Service of order to show cause. Sec. 5025. A copy of the petition and order to show cause shall be served on the debtor by delivering the same to him personally, or leaving the same at his last or usual place of abode ; or, if the debtor can not be found, and his place of residence can not be ascertained, service shall be made by publication in such manner as the judge may direct. No further proceedings, unless the debtor appears and consents thereto, shall be had until proof has been given, to the satisfaction of the court, of such service or publication ; and if such proof is not given on the return day of such order, the proceedings shall be adjourned and an order made that the notice be forthwith so served or published. And if on the return day of the order to show cause as aforesaid, the court shall be satisfied that the requirement of section thirty-nine of said act as to the number and amount of petitioning creditors has been complied with, or if, within the time provided for in section thirty-nine of this act, creditors sufficient in number and amount shall sign such petition so as to make a total of one-fourth in number of the creditors and one-third in the amount of the provable debts against the bankrupt, as provided in said section, the court shall so adjudge, which judgment shall be final ; otherwise it shall dismiss the proceedings, and, in cases hereafter commenced, with Hosts. ' Proceedings on retura day. Sbc. 5026. On such return day or adjourned day, if the notice has been duly served or published, or is waived by the ' Added by act of June 22, 1874, § 13. cxxii THE ENACTMENTS. appearance and consent of the debtor, the court shall proceed summarily to- hear the allegations of the petitioner and debtor, and may adjourn the pro- ceedings from time to time, on good cause shown, and shall, if the debtor on the same day so demands, in writing, order a trial by jury at the first term, of the court at which a jury shall be in attendance, to ascertain the fact of the alleged bankruptcy. Or, at the election of the debtor, the court may, in its dis- cretion, award a venire jUcAas to the marshal of the district, returnable within ten days before him for the trial of the facts set forth in the petition, at which time the trial shall be had, unless adjourned for cause. And unless, upon the hearing on trial, it shall appear to the satisfaction of said court or of the jury, as the case may be, that the facts set forth in said petition are true, or if it shall appear that the debtor has paid and satisfied all liens upon his property, in case the existence of such liens was the sole ground of the proceeding, the proceeding shall be dismissed, and the respondent shaU recover costs; and all proceedings in banhruptcy may be discon^ tinned on reasonable notice and hearing, with the approval of the court, and upon the assent, in writing, of such debtor, and not less than one-half of his creditors in number and amount ; or, in case all the creditors and swch debtor assent thereto, such discon- tinuance shall be ordered and entered; and allparties shall be remitted, in either case, to the same rights and duties existing at the date of the filing of the petition for banhruptcy, except so far as such estate shall have been already administered and, di^osed of. And the court shall have power to make all needful orders and decrees to carry the foregoing provision ijito effect.'- [If the petitioning creditor does not appear and proceed on the return day, or adjourned day, the court may upon the petition of any other creditor, to the required amount, proceed to adjudicate on such petition, without requiring a new service or publication of noUoe to the debtor. [* jR. S., p. 978.] Costs at trial. Sac. 5037. If upon such hearing or trial the debtor proves to the satisfaction of the court or of the jury, as the case may be, that the facts set forth in the petition are not true, or that the debtor has paid and satisfied all liens upon his property, in case the existence of such liens was the sole ground of the proceeding, the proceedings shall be dismissed and the respondent shall recover costs.] Warrant. Sec. 5028. If upon the hearing or trial the facts set forth in the petition are found to be true, or if upon default made by the debtor to appear pursuant to the order, due proof of service thereof is made, the court shall adjudge the debtor to be a bankrupt, and shall forthwith issue a warrant to take possession of his estate. Distribution of property of debtor. Sec. 5039. The warrant shall be directed, and the property of the debtor shall be taken thereon, and shall be assigned and distributed in the same manner and with similar proceedings to those hereinbefore provided for the taking possession, assignment, and distri- bution of the property of the debtor upon his own petition. Schedule and inventory. Sec. 5030. The order of adjudication of bankruptcy shall requre the bankrupt forthwith, or within such number of days not exceeding five after the date of the order or notice thereof, as shall by the order oe prescribed, to make and deliver, or transmit by mail, post-paid, to the messenger, a schedule ' The matter in italic is added, and section and of section 5037 is stricken the substance of the residue of the out by the act of .June 33, 1874, §14. STATUTES OF PRACTICAL UTILITY, cxxiii of the creditors and an inventory an^ vahmtion ' of his estate in the form and verified in the manner required of a petitioning debtor. Proceedings when debtor is absent. Sec. 5031. If the debtor has failed to appear in person, or by attorney, a certified copy of the adjudication shall be forthwith served on him by delivery or publication in the manner provided for the service of the order to show cause ; and if the bankrupt is absent or can not be found, such schedule and inventory shall be prepared by the mes- senger and the assignee from the best information they can obtain. CHAPTER FOUR. PR0CBBDIN6B TO KEAIIZB THE ESTATE FOK CEBDITORS. * Contents of notice to creditors. Sbc. 5033. The notice [B. S., p. 979.], to creditors under warrant shall state: First. That a warrant in bankruptcy has been issued against the estate of the debtor. Second. That the payment of any debts and the delivery of any property belonging to such debtor to him or for his use, and the transfer of any prop- erty by him, are forbidden by law. Third. That a meeting of the creditors of the debtor, giving the names, residences, and amounts, so far as known, to prove their debts and choose one or more assignees of his estate, will be held at a court of bankrupty, to be holden at a time and place designated in the warrant, not less than ten nor more than ninety days after the issuing of the same. MarshaPs retu . Sec. 5083. At the meeting held in pursuance of the notice, one of the registers of the court shall preside, and the messenger shall make return of the warrant and of his doings thereon; and if it appears that the notice to the creditors has not been given as required in the warrant, the meeting shall forthwith be adjourned, and a new notice given as required. Choice of assignee. Sbc. 5034. The creditors shall, at the first meeting held after due notice from the messenger in presence of a register designated by the court, choose one or more assignees of the estate of the debtor; the choice to be made by the greater part in value and in number of the creditors who have proved their debts. If no choice is made by the creditors at the meeting, the judge, or if there be no opposing interest, the register, shall appoint one or more assignees. If an assignee, so chosen or appointed, fails within five days to express in writing his acceptance of the trust, the judge or register may fill the vacancy. All elections or appointments of assignees shall ,be subject to the approval of the judg*^; and when in his judgment it is for ' any cause needful or expedient, he may appoint additional assignees, or order a new election. Who are disqualified. Sec. 5035. No person who has received any pre- ference contrary to the provisions of this Title shall vote for or be eligible as assignee; but no title to property, real or personal, sold, transferred, or con- veyed by an assignee, shall be affected or impaired by reason of his ineligi- Dility. Bond of assignee. Sbc. 5036. The district judge at any time may, and upon the request in writing of any creditor who has proved his claim shall, ' Added bv act of June 22, IS7', § 15. cxxiv THE ENACTMENTS. require the assignee to give good and sufficient bond to the United States, with a condition for the faithful performance and discharge of his duties; the bond shall be approved by the'judge or register by his indorsement thereon, shall be filed with the record of the case, and inure to the benefit of all creditors proving their claims, and may be prosecuted in the name and for the benefit of any injured party. If the assignee fails to give the bond within such time as the judge or register orders, not exceeding ten days after notice to him of such order, the judge shall remove him and appoint another in his place. [* S. S., p. 980.] * Assignee liable for contempt. Sbc. 5037. Any as- signee who refuses or unreasonably neglects to execute an instrument when lawfully required by the court, or disobeys a lawful order or decree of the court in the premises, may be punished as for a contempt of court. Resignation of the trust. Sue. 5038. An assignee may, with the consent of the judge, resign his trust and bo discharged therefrom. Removal of assignee. Sbc. 5039. The court, after due notice and hearing, may remove an assignee for any cause which, in its judgment, renders such removal necessary or expedient. At a meeting called for the purpose by order of the court, in its discretion, or called upon the application of a majority of the creditors in number and value, the creditors may, with consent of the court, remove any assignee by such a vote as is provided for the choice of assignee. Effect of resignation or removal. Sbc. 5040. The resignation or removal of an assignee shall in no way release him from performing all things requisite on his part for the proper closing up of his trust and the transmission thereof to his successors, nor shall it affect the liability of the principal or surety on the bond given by the assignee. Filling vacancies. Sbc. 5041. Vacancies caused by death or otherwise in the oflice of assignee may be filled by appointment of the court, or at its dis- creti(m by an election by the creditors, in the same manner as in the original choice of an assignee, at a regular meeting, or at a meeting called for the purpose, with such notice thereof in writing to all known creditors, and by such person as the court shall direct. Vesting estate in remaining assignee. Sbc. 5043. "When, by death or otherwise, the number of assignees is reduced, the estate of the debtor not lawfully disposed of shall vest in the remaining assignee or assignees, and in the persons selected to fill vacancies, if any, with the same powers and duties, relative thereto as if they were originally chosen. Former assignee to execute instrumeuts. Sac. 5043. Any formei' assignee, his executors or administrators, upon request, and at the expense of the estate, shall make and execute to the new assignee all deeds, conveyances, and assurances, and do all other lawful acts requisite to enable him to recover and receive all the estate. And the court may make all orders which it may deem expedient to secure the proper fulfillment of the duties of any former assignee, and the rights and interests of all persons interested in the estate. Assignment. Sbc 5044. As soon as an assignee is appointed and qualified, the judge, or, where there is no opposing interest, the register, shall, by an in'trument nndpr h'R hand, assign and convey to the assignee all the estate, STATUTES OF PRACTICAL UTILITY. cxxv real and personal, 6f the bankrupt, with all his deeds, books, and papers, relating thereto, and such assignment shall relate back to the commencemfint of the proceedings in bankruptcy, and by operation of law shall vest the title to all such property and estate, both real and personal, in the assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding- the commencement of the bankruptcy proceedings. Exemptions. Sec. 5045. There shall be excepted from the operation of the conveyance the necessary household and kitchen furniture, and such wther articles and necessaries of the bankrupt as the assignee shall designate and set apart, having reference in the amount to the family, condition, and circum- stances of the bankrupt, but altogether not to exceed in value, in any case, the sum of five hundred dollars; also the wearing apparel of the bankrupt,, and that of his wife and children, and the uniform, arms, and equipments of any person who is or has been a soldier in the militia, or in the service of the- United States; and such other property as now is, or hereafter shall be, exempted from attachment, or seizure, or levy on execution by laws of the United States, and such * other property not [* JS. S., p. 981.]. included in the foregoing exceptions as is exempted from levy and sale upon execution or other process or order of any court by the law& of the State in which the bankrupt has his domicile at the time of the com- mencement of the proceedings in bankruptcy, to an amount allowed by the constitution and laws of each State, as existing in the year eighteen hundred and seventy-one; and such exemptions shall be valid against debts contracted before the adoption and passage of such State constitution and laws, -as well as those contracted after the same, and against liens by judgment" or decree of any State court, any decision of any such court rendered since the adoption and passage of such constitution and laws to the contrary notwithstanding. These exceptions shall operate as a limitation upon the conveyance of the property of the bankrupt to his assignee ; and in no case shall the property hereby excepted pass to the assignee, or the title of the bankrupt thereto be impaired or affected by any of the provisions of this Title ; and the determina- tion of the assignee in the matter shall, on exception taken, be subject to the final decision of the said court. What property vests in assignee. Sec. 5046. All property conveyed by the bankrupt in fraud of his creditors ; all rights in equity, choses in action, patent-rights, and copy-rights ; all debts due him, or any person for his use, and all liens and securities therefor; and all his rights of action for property or estate, real or personal, and for any cause of action which be had against any person arising from contract or from the unlawful taking or detention, or in- jury to the property of the bankrupt; and all his rights of redeeming such property or estate; together with the like right, title, power, and authority to sell, manage, dispose of, sue for, and recover or defend the same, as the bank- rupt might have had if no assignment had been made, shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, but subject to the exceptions stated in the preceding section, be at once vested in such assignee. Ki^ht of action of assignee. Sec. 5047. The assignee shall have the like remedy to recover all the estate, debts, and effects in his own name, as the •cxxvi THE ENACTMENTS. debtor might have had if the decree in bankruptcy had not been rendered and no assignment had been made. If at the time of- the commencement of the proceedings in bankruptcy, an action is pending in the name of the debtor for the recovery of a debt or other thing which might or ought to pass to the assignee by the assignment, the assignee shall, if he requires it, be admitted to prosecute the action in his own name, in like manner and with like effect as if it had been originally commenced by him. And if any suit at law or in .equity, in which the bankrupt is a party in his own name, is pending at the time of the adjudication of bankruptcy, the assignee may defend the same in the same manner and with the like effect as it might have been defended by the bank- rupt. No abatement by death or remoyaL Sec. 5048. No suit pending in the name of the assignee shall be abated by his death or removal ; but upon the motion of the surviving or remaining or new assignee, as the case may be, he shall be admitted to prosecute the suit in like manner and with like effect as if it had been originally commenced by him. Copy of assignment conclusiye evidence of title, Sbc. 5049. A copy duly certified by the clerk of the court, under the seal thereof, of the assignment, shall be conclusive evidence of the title of the assignee to tak6, hold, sue for, and recover the property of the bankrupt. Bankrupt's books of account. Sec. 5050. ITo person shall be entitled, as against the assignee, to withhold from him possession of any books of account of the bankrupt, or claim any lien thereon. [* S,. 8., p. 983.] * Debtor must execute instruments. Sec. 5051. The debtor shall, at the request of the assignee and at the ex- pense of the estate, make and execute any instruments, deeds, and writings ■which may be proper to enable the assignee to possess himself fully of all the assets of the bankrupt. Chattel mortgages. Sec. 5053. No mortgage of any vessel or of any other goods or chattels, made as security for any debt, in good faith and for a pres- ent consideration and otherwise valid, and duly recorded pursuant to any statute of the United States or of any State, shall be invalidated or affected t^y an assignment in bankruptcy. Trust property. Sec. 5053. No property held by the bankrupt in trust shall pass by the assignment. Notice of appointment of assignee and record of assignment. Sec. 5054. The assignee shall immediately give notice of his appointment, by publication at least once a week for three successive weeks in such newspapers as shall for that purpose be designated by the court, due regard being had to their general circulation in the district or in that portion of the district in which the bank- rupt and his creditors shall reside, and shall, within six months, cause the assignment to him to be recorded in every registry of deeds or other office within the United States where a conveyance of any lands owned by the bank- rupt ought by law to be recorded. Assignee to demand and receive all assigned estate. Sec. 5055. The assignee shall demand and receive, from all persons holding the same, all the estate assigned or intended to be assigned. Notice prior to suit against assignee. Sec. 5056. No person shall be enti- tled to maintain an action against an assignee in bankruptcy for anything done STATUTES OF PRACTICAL UTILITY, cxxvii •by him as auoh assignee, without previously giving him twenty days' notice of such action, specifying the cause thereof, to the end that snch assignee may have an opportunity of tendering amends, should he see fit to do so. Time of commencing suits. Sec. 5057. No suit, either at law or in equity, shall be maintainable in any court between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of prop- erty transferable to or vested in such assignee, unless brought within two years ^from the time when the cause of action accrued for or against such assignee. And tliis provision shall not in any case revive a right of action barred at the time when an assignee is appointed. Assignee's accounts of money received. Sec. 5058. The assignee shall keep a regular account of all money received by him as assignee, to which every creditor shall, at reasonable times, have free resort. Assignee to keep money and goods separate. Sec. 5059. The assignee shall, as soon as may be after receiving any money belonging to the estate, •deposit the same in some bank in his name as assignee, or otherwise keep it distinct from all other money in his possession; and shall, as far as practicable, keep all goods and effects belonging to the estate separate from all other goods in his possession, or designated by appropriate marks, so that they may be easily and clearly distinguished, and may not be liable to be taken as his property or lor the payment of his debts. Temporary investment of money. Sec. 5060. When it appears that the distribution of the estate may be delayed by litigation or other cause, the court may direct the temporary investment of the money belonging to such estate in securities to be approved by the judge or register, or may authorize it to be de- posited in any convenient bank, upon such interest, not exceeding the legal rate, as the bank may contract with the assignee to pay thereon. * Arbitration. Sec. 5061. The assignee, under the [+ B.. S., p. 983.] direction of the court, may submit any controversy arising in the settlement of demands against the estate, or of debts due to it, to the determination of arbitrators to be chosen by him and the other party to the controversy, and, under such direction, may compound and settle any such controversy, by agreement with the other party, as he thinks proper and most for the interest of the creditors. Assignee to sell property. Sec. 5063. The assignee shall sell all such unincumbered estate, real and personal, which comes to his hands, on such terms as he thinks most for the interest of the creditors ; but upon petition of any person interested, and for cause shown, the court may make such order concerning the time, place, and manner of sale as will, in its opinion, prove to the interest of the creditors. Sale of disputed property. Sec. 5063. Whenever it appears to the satis- faction of the court that the title to any portion of an estate, real or personal, which has come into possession of the assignee, or which is claimed by him, is in dispute, the court may, upon the petition of the assignee, and after such notice to the claimant, his agent or attorney, as the court shall deem reasona- ble, order it to be sold, under the direction of the assignee, who shall hold the funds receivedin place of the estate disposed of; and the proceeds of the sale shall be considered the measure of the value of the property in any suit or controversy between the parties in any court. But this provision shall not cxxviii THE ENACTMENTS. prevent the recovery of the property from the possession of the assignee by any proper action commenced at any time before the court orders the sale. Sale of nncollectible assets. Sec. 5064. The assignee may sell and assign, under the direction of the court and in such manner as the court shall order, any outstanding claims or other property in his hands, due or belonging to the estate, which cannot be collected and received by him without unreasonable or inconvenient delay or expense. Sale of perishable property. Sec. 5065. When it appears to the satisfaction of the court that the estate of the debtor, or any part thereof, is of a perisha- ble nature, or liable to deteriorate in value, the court may order the same to be sold, in such manner as may be deemed most expedient, under the direction of the messenger or assignee, as the case may be, who shall hold the funds received in place of the estate disposed of. Discharge of liens. Sec. 5066. The assignee shall have authority, under the order and direction of the court, to redeem or discharge any mortgage or conditional contract, or plsdge or deposit, or lien upon any property, real or personal, whenever payable, and to tender due performance of the condition thereof, or to sell the same subject to such mortgage, lien, or other incum- brance. Provable debts. Sec. 5067. All debts due and payable from the bankrupt at the time of the commencement of proceedings in bankruptcy, and all debts then existing but not payable until a future day, a rebate of interest being made when no interest is payable by the terms of the contract, may be proved against the estate of the bankrupt. All demands against the bankrupt for or on account of any goods or chattels wrongfully taken, converted, or withheld by him may be proved and allowed as debts to the amount of the value of the property so taken or withheld, with interest. When the bankrupt is liable for unliquidated damages arising out of any contract or promise, or on account of any goods or chattels wrongfully taken, converted, or withheld, the court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate. [* B. 8., p. 984.] * Contingent debts. Sec. 5068. In all cases of contingent debts and contingent liabilities contracted by the bank- rupt, and not herein otherwise provided for, the creditor may make claim therefor, and have his claim allowed, with the right to share in the dividends, if the contingency happens before the order for the final dividend; or he may, at any time, apply to the court to have the present value of the debt or liabil- ity ascertained and liquidated, which shall then be done in such manner as the court shall order, and he shall be allowed to prove for the amount so ascertain ed. Liability of bankrupt as surety. Sec. 5069. When the bankrupt is bound as drawer, indorser, surety, bail, or guarantor upon any bill, bond, note, or any other specialty or contract, or for any debt of another person, but his liability does not become absolute until after the adjudication of bankruptcy, the creditor may prove the same after such liability becomes fixed, and before the final dividend is declared. Sureties for bankrupt. Sec. 5070. Any person liable as bail, surety, guaran- tor, or otherwise for the bankrupt, who shall have paid the debt, or any part thereof, in discharge Of the whole, shall be entitled tp prove such ^ebt or to STATUTES OF PRACTICAL UTILITY, cxxix stand in the place of the creditor if the creditor, has proved the same, although such payments shall have been made after the proceedings in bankruptcy were commenced. And any person so liable for the bankrupt, and who has not paid the whole of such debt, but is still liable for the same or any part thereof, may, if the creditor fails or omits to prove such debt, prove the same either in the name of the creditor or otherwise, as may be provided by the general orders, and subject to such regulations and limitations as may be established by such general orders. Deltts falling due at stated periods. Smc. 5071. Where the bankrupt is liable to pay rent or other debt falling due at fixed and stated periods, the creditor may prove for a proportionate part thereof up to the time of the bank- ruptcy, as if the same grew due from day to day, and not at such fixed and stated periods. 5o other debts provable. Sec. 5073. No debts other than those specified in the five preceding sections shall be proved or allowed against the estate. Set-oflfs. Sec. 5073. In all cases of mutual debts or mutual credits between the parties, the account between them shall be stated, and one debt set off against the other, and the balance only shall be allowed or paid ; bnt no set-off shall be allowed in favor of any debtor to the bankrupt of a claim in its nature not provable against the estate, or of a claim purchased by or transferred to him after the filing of the petition; or in cases of compulsory bankruptcy, after the act of ianhruptcy upon or in respect of which the adjudication shall be made, and with a mew of mahing such set-off. ' Distinct liabilities. Sec. 5074. When the bankrupt, at the time of adjudi- cation, is liable upon any bill of exchange, promissory note, or other obliga- tion in respect of distinct contracts as a member of two or more firms carrying on separate and distinct trades, and having distinct estates to be wound up in bankruptcy, or as a sole trader and also as a member of a firm, the circumstance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof and receipt of dividend in respect of such distinct contracts against the estates respectively liable upon such contracts. Secured debts. Sec. 5075. When a creditor has a mortgage or pledge of real or personal property of the bankrupt, or a lien thereon for securing the payment of a debt owing to him from the bankrupt, he shall be admitted as a creditor only for the balance of the debt after deducting the value of such property, to be ascertained by agreement between him and the assignee, or by a sale thereof, to be made in such manner as the court shall direct; or the creditor may release or convey his claim to the assignee upon such property, and, be admitted to prove his whole debt. If the value of the property exceeds the sum for which it is so held as * security, the assignee may release to the creditor the bankrupt's right [* iJ. i\, p. 985.] of redemption therein on receiving such excess; or he may sell the property, subject to the claim of the creditor thereon; and in either case the assignee and creditor, respectively, shall execute all deeds and writ- ings necessary or proper to consummate the transaction. If the property is 'Added by amendatory act of June 23, 1874, § 6. Vol. I.— I cxxx THE ENACTMENTS. not so sold or released and delivered up, the creditor shall not be allowed to prove any part of his debt. Proof of debt. Sec. 5076. Creditors residing within the judicial district where the proceedings in bankruptcy are pending shall prove their debts before one of the registers of the court, or before a commissioner of the circuit court, within the said district. Creditors residing Without the district, but within the United States, may prove their debts before a register in bankruptcy, or a commissioner of a circuit court, in the judicial district where such creditor, or either one of joint creditors, reside; but proof taken before a commissioner, shall be subject to revision by the register of the court. Creditor's oath. Sbc. 5077. To entitle a claimant against the estate of a bankrupt to have his demand allowed, it must be verified by a deposition in writing, under oath, and signed by the deponent, setting forth the demand, the consideration thereof, whether any and what securities are held therefor, and whether any and what payments have been made thereon; that the sum claimed is justly due from the bankrupt to the claimant ; that the claimant has not, nor has any other person, for his use, received any security or satisfaction whatever other than that by him set forth; that the claim was not procured for the purpose of influencing the proceedings in bankruptcy; and that no bargain or agreement, express or implied, has been made or entered into, by or on behalf of such creditor, to sell, ti'ansfer, or dispose of the claim, or any part thereof, or to take or receive, directly or indirectly, any money, property, or consideration whatever, whereby the vote of such creditor for assignee, or any action on the part of such creditor, or any other person in the proceedings, is or shall be in any way aSected, influenced, or controlled. No claim shall be allowed unless all the statements set forth in such deposition shall appear to be true. • Oath, by whom made. Sec. 5078. Such oath shall be made by the claimant, testifying of his own knowledge, unless he is absent from the United States or prevented from some other good cause from testifying, in which case the demand may be verified by the attorney or authorized agent of the claimant, testifying to the best of his knowledge, information, and belief, and setting forth his means of knowledge. Corporations may verify their claiml by the oath of their president, cashier, or treasurer. The court may require or receive further pertinent evidence either for or against the admission_of any claim. Oath, before whom taken; proof sent to register. Sbc. 5079. Such oath may be taken in any district before any register or any comaiissioner of the circuit court authorized to administer oaths; or, if the creditor is in a foreign country, before any minister, consul, or vice-consul of the United States. When the proof is so made it shall be delivered or sent by mail to the register having charge of the case. Proof to be sent to assignee. Sec. 5080. If the proof is satisfactory to the register it shall be delivered or sent by mail to the assignee, who shall exam- ine the same and compare it with the books and accounts of the bankrupt, and shall register, in a book to be kept by him for that purpose, the names of cred- itors who have proved their claims, in the order in which such proof is received, stating the time of receipt of such proof, and the amount and nature of the debts. Such books shall be open to the inspection of all the creditors. STATUTES OF PRACTICAL UTILITY, cxxxi The court may require or receive further pertinent evidence either for or against the admission of any claim. ♦Examination by court into proof of claims. Sac, [* 2J. 8., p. 986.] 5081. The court may, on application of the assignee, or of any creditor, or of the bankrupt, or without any application, examine upon oath the bankrupt, or any person tendering or who has made proof of a claim, and may summon any person capable of giving evidence concerning such proof, or concerning the debt sought to be proved, and shall reject all claims not duly proved, or where the proof shows the claim to be founded in fraud, illegality or mistake. Withdrawal of papers. Sec. 5083. A bill of exchange, promissory note, or other instrument, used in evidence upon the proof of a claim, and left in court or deposited in the clerk's office, may be delivered, by the register or clerk having the custody thereof, to the person who used it, upon his filing a copy thereof, attested by the clerk of the court, who shall indorse upon it the nawe of the party against whose estate it has been proved, and the date and amount of any dividend declared thereon. Postponpment of proof. Sec. 5083. When a claim is presented for proof before the election of the assignee, and the judge or register entertains doubts of its validity or of the right of the creditor to prove it, and is of opinion that such validity or right ought to be investigated by the assignee, he may post- pone the proof of the claim until the assignee is chosen. Surrender of preferences. Sec. 5084. Any person who, since the second day of March, eighteen hundred and sixty-seven, has accepted any preference, having reasonable cause to believe that the same was made or given by the debtor, contrary to any provisions of the act of March two, eighteen hundred and sixty-seven, chapter one hundred and seventy-six, to establish a uniform system of bankruptcy, or to any provisions of this Title, shall not prove the debt or claim on account of which the preference is made or given, nor shall he receive any dividend therefrom until he shall first surrender to the assignee .all property, money, benefit, or advantage received by him under such preference. ' Allowance and list of debts. Sec. 5085. The court shall allow all debts duly proved, and shall cause a list thereof to be made and certified by one of "the registers. Examination of bankrupt. Sec. 5086. The court may, on the application of the assignee, or of any creditor, or without any appplication, at all times require the bankrupt, upon reasonable notice, to attend and submit to an examination, on oath, upon all matters relating to the disposal or condition of his property, to his trade and dealings with others, to his accounts concerning the same, to all debts due to or claimed from him, and to all other matters concerning his property and estate and the due settlement thereof according to law. Such examination shall be in writing, and shall be signed by the bankrupt and filed with the other proceedings. In all causes and trials a/rising or ordered under this act, the alleged banhrupt, and any party thereto, shall le a competent wit- ness.^ Examination of witness. Sec. 5087. The court may, in like manner, re- ' Added by act of June 33, 1874, § 8. cxxxii THE ENACTMENTS. quire the attendance of any other person as a witness, and if such person fails to attend, on being summoned thereto, the court may compel his attendance by warrant directed to the marshal, commanding him to arrest such person and bring him forthwith before the court, or before a register in bankruptcy, for examination as a witness. Examination of bankrupt's wife. Sec. 5088. For good cause shown, the wife of any bankrupt may be required to attend before the court to the end that she may be examined as a witness ; and if she does not attend at the time and place specified in the order, the bankrupt shall not be entitled to a discharge unless he proves to the satisfaction of the court that he was unable to procure her attendance. [* R. 3., p. 987.] * Exaiulnation of imprisoned or disabled bankrupt. Sec. 6089. If the bankrupt is imprisoned, absent, or disabled from attendance, the court may order him to be produced by the jailer, or any officer in whose custody he may be, or may direct the examina- tion to be had, taken, and certified at such time and place and in such manner as the court may deem proper, and with like effect as if such examination had been had in court. No abatement upon death of debtor. Sec. 5090. If the debtor dies after the issuing of the warrant, the proceedings may be continued and conclnded in like manner as if he had lived. Distribntion of bankrupt's estate. Sec. 5091. All creditors whose debts are duly proved and allowed shall be entitled to share in the bankrupt's prop- erty and estate, pro rafa, without any priority or preference whatever, except as allowed by section fifty-one hundred and one. No debt proved by any person liable, as bail, surety, guarantor, or otherwise, for the bankrupt, shall be paid to the pers(m so proving the same until satisfactory evidence shall be produced of the payment of such debt by such person so liable, and the share to which such debt would be entitled may be paid into court, or otherwise- held for the benefit of the party entitled thereto, as the court may direct. Second meeting of creditors. Sec. 5092. At the expiration of three months from the date of the adjudication of bankruptcy in any Ohse, or as much earlier as the court may direct, the court,, upon request of the assignee, shall call a general meeting of the creditors, of which due notice shall be given, and the assignee shall then report, and exhibit to the court and to the creditors just and true accounts of all his receipts and payments, verified by his oath, and he shall also produce and file vouchers for all payments for which vouchers are required by any rule of the court; he shall also submit , the schedule of the bankrupt's creditors and property as amended, duly veri- fied by the bankrupt, and a statement of the whole estate of the bankrupt as then ascertained, of the property recovered and of the property outstanding, specifying the cause of its being outstanding, and showing what debts or claims are yet undetermined, and what sum remains in his hands. The major- ity in value of the creditors present shall determine whether any and what part of the net proceeds of the estate, after deducting and retaining a sum sufficient to provide for all undetermined claims which, bj reason of the distant residence of the creditor, or for other sufficient reason, have not been proved, and for other expenses and contingencies, shall be divided among the creditors; but unless at least one-hnlf in v^lue of the creditors attend the meet- STATUTES OF PRACTICAL UTILITY, cxxxiii iiig, either in person or by attorney, it shall be the duty of the assignee so to determine. Third meeting- of creditors. Sec. 5093. Like proceedings shall be had at the expiration of the next three months, or earlier, if practicable, and a third meeting of creditors shall then be called by the court, and a final dividend then declared, unless any suit at law or in equity is pending, or unless some other estate or effects of the debtor afterward come to the hands of the assignee in the qase of the assignee shall, as soon as may be, convert such estate and effects into money, and -within two months after tbe same are so converted they shall be divided in manner aforesaid. Further dividends shall be made in like manner as often as occasion requires, and after the third meeting of creditors no further meeting- shall be called, unless ordered by the court. Notice of meetings. Sec. 5094. The assignee shall give such notice to all known creditors, by mail or otherwise, of all meetings, after the first, as may be ordered by the court. * Creditor may act by attorney. Sec. 5095. Any creditor [* ^. A, p. 988.] ■may act at all meetings by his duly constituted attorney the same as4hough personally present. Settlement of assignee's account. Sec. 5096. Preparatory to the final divi- dend, the assignee shall submit his account to the court and file the same, and give notice to the creditors of such filing, and shall also give notice that he will apply for a settlement of his account, and for a discharge from all liability •as assignee, at a time to be specified in such notice, and at such time the court shall audit and pass the accounts of the assignee, and the assignee shall, if required by the court, be examined as to the truth of his account, and if it is found correct he shall thereby be discharged from all liability as assignee to any creditor of the bankrupt. The court shall thereupon order a dividend of the estate and effects, or of such part thereof as it sees fit, among such of the creditors as have proved their claims, in proportion to the respective amount of their debts. Dividend not to be disturbed. Sec. 5097. No dividend already declared shall be disturbed by reason of debts being subsequently proved, but the cred- itors proving such debts shall be entitled to a dividend equal to those already received by the other creditors before any further payment is made to the latter. Omission of assignee to call meetings. Sec. 5098. If by accident, mistake, ■or other cause, without fault of the assignee, either or both of the second or third meetings should not be held within the times limited, the court may, upon motion of an interested party, order such meetings, with like effect as to the validity of the proceedings as if the meeting had been duly held. Compensation of assignee. Sec. 5099. The assignee shall be allowed, and may retain out of money in his hands, all the necessary disbursements made by him. in the discharge of his duty, and a reasonable compensation for his services, in the discretion of the court. Commissioner^. Sec. 5100. In addition to all expenses necessarily incurred by him in the execution of his trust, in any case, the assignee shall be entitled to an allowance for his services in such case on all moneys received and paid out by him therein, for any sum not exceeding one thousand dollars, five per centum thereon; for any larger sum, not exceeding five thousand dollars, two cxxxiv THE ENACTMENTS. and a half per centum on the excess over one thousand dollars; and for any- larger sum, one per centum on the excess over five thousand dollars. If, at any time, there is not in his hands a sufficient amount of money to defray the necessary expenses required for the further execution of his trust, he shall net- be obliged to proceed therein until the necessary funds are advanced or satis- factorily secured to him. Debts entitled to priority. Sec. 5101. In the order for a dividend, the following claims shall be entitled to priority, and to be first paid in full in the following order: First.. The ffees, costs, and expenses of suits, and of the several proceed- ings in bankruptcy under this Title, and for the custody of property, as herein provided. Second. All debts due to the United States, and all taxes and assessments under the laws thereof. Third. All debts due to the State in which the proceedings in bankruptcy are pending, and all taxes and assessments made under the laws thereof. Fourth. Wages due to any operative, clerk, or house-servant, to an amount not exceeding fifty dollars, for labor performed within six months next preced- ing the first publication of the notice of the proceedings in bankruptcy. Fifth. All debts due to any persons who, by the laws of the United States, are, or may be, entitled to a priority, in like manner as if the provisions of this Title had not been adopted. But nothing contained in this Title shall interfere with the assessment and collection of taxes by the authority of the United States or any State. [* R. S., p. 989.] * Notice of dividend to each creditor. Sec. 5103. Whenever a dividend is ordered, the register shall, withiit ten days after the meeting, prepare a list of creditors entitled to dividend, and shall calculate and set opposite to the name of each creditor who h.is. proved his claim the dividend to which he is entitled out of the net proceeds of the estate set apart for dividend, and shall forward, by mail, to every credi- tor a statement of the dividend to which he is entitled, and such creditors shall be paid by the assignee in such manner as the court may direct. . Settlement of bankrupt estates by trustees. Composition witli creditors. Sec. 5103. If at the first meeting of creditors, or at any meeting of creditor* specially called for that purpose, and of which previous notice shall have been given for such length of time and in such manner as the court may direct, three-fourths in value of the creditors whose claims have been proved shall resolve that it is for the interest of the general body of the creditors that the estate of the bankrupt shall be settled by trustees, under the inspection and direction of a committee of the creditors, the creditors may certify and report such resolution to the court, and may nominate one or more trustees to take and hold and distribute the estate, under the direction of such committee. If it appears, after hearing the bankrupt and such creditors as desire to be heard, that the resolution was duly passed, and that the interests of the credi- tors will be promoted thereby, the court shall confirm it; and upon the execu- tion and filing, L)y or on behalf of three-fourths in value of all the creditors whose claims have been proved, of a consent that the estate of the bankrupt shall be wound up and settled by trustees, according to the terms of such reso- lution, the bankrupt, or, if an assignee has been appointed, the assignee, shall^ STATUTES OF PRACTICAL UTILITY, cxxxv under the direction of the court, and under oath, convey, transfer, and deliver all the property and estate of the bankrupt to the trustees, who shall, upon such conveyance and transfer, have and hold the same in the same manner, and with the same powers and rights, in all respects, as the bankrupt would have had or held the same if no proceedings in bankruptcy had been taken, or as the assignee in bankruptcy would have done, had such resolution not been passed. Such consent and the proceedings under it shall be as binding in all respects on any creditor whose debt is provable, who has not signed the same, as if he had signed it, and on any creditor whose debt, if provable, is not proved, as if he had proved it. The court, by order, shall direct all acts and things needful to be done to carry into effect such resolution of the creditors, and the trustees shall proceed to wind up and settle the estate under the direc- tion and inspection of such committee of the creditors, for the equal benefit of all such creditors; and the winding up and settlement of any estate under the provisions of this section shall be deemed to be proceedings in bankruptcy ; and the trustees shall have all the rights and powers of assignees in bank- ruptcy. The court, on the application of such trustees, shall have power to summon and examine, on oath or otherwise, the bankrupt, or any creditor, or any person indebted to the estate, or known or suspected of having any of the estate in his possession, or any other person whose examination may be mate- rial or necessary to aid the trustees in the execution of their trust, and to com- pel the attendance of such persons and the production of books and papersin the same manner as in other proceedings in bankruptcy; and the bankrupt shall have the like right to apply for and obtain a discharge after the passage of such resolution and the appointment of such trustees as if such resolution had not been passed, and as it all the proceedings had continued in the man- ner provided in the preceding sections of this Title. If the resolution is not duly reported, or the consent of the creditors is not duly filed, or if, upon its filing, the court does not think fit to approve thereof, the bankruptcy shall proceed as if no resolution had been passed, and the court may make all neces- sary orders for resuming the proceedings. And the period of time which shall have elapsed between the date of the resolution and the date of the order for resuming proceedings shall not be reckoned in calculating periods of time pre- scribed by this Title.' In all cases of bankruptcy now pending, or to be hereafter pending, by or against any person, whether an adjudication in bankruptcy shall have been had or not, the creditors of such alleged bankrupt may, at a meeting called under the direction of the court, and upon not less than ten days' notice to each known creditor of the time, place, and purpose of such meeting, such notice to be personal or otherwise as the court may direct, resolve that a com- position proposed by the debtor shall be accepted in satisfaction of the debts due to them from the debtor. And such resolution shall, to be operative, have been passed by a majority in number and three-fourths in value of the creditors of the debtor assembled at such meeting either in person or by proxy, and shall be confirmed by the signatures thereto of the debtor and two-thirds in number and one-half in value of all the creditors of the debtor. And in calculating a ' Here ended the original section ; added '^y act of June 23, 1874, ch. the nine paragraphs following are 390, § 17. cxxxvi THE ENACTMENTS. majority for the purpose of a composition under this section, creditors whose debts amount to sums, not exceeding fifty dollars shall be reckoned in the majority in value, but not in the majority in number; and the ^alue of the debts of secured creditors above the amount of such security, to be deteimined by the court, shall, as nearly as circumstances admit, be estimated in the same way. And creditors whose debts are fully secured shall not he entitled to vote upon or to sign such resolution without first relinquishing such security for the benefit of the estate. The debtor, unless prevented by sickness or other cause satisfactory to such meeting, shall be present at the same, and shall answer any inquiries made of him ; and he, or, if he is so prevented from being at such meeting, some one in his behalf, shall produce to the meeting a statement showing the whole of his assets and debts, and the names and addresses of the creditors to whom such debts respectively are due. Such resolution, ^together with the statement of the debtor as to his assets and debts, shall be presented to the court; and the court shall, upon notice to all the creditors of the debtor of not less than five days, and upon hearing, in- quire whether such resolution has been passed in the manner directed by this section; and if satisfied that it has been so passed, it shall, subject to the pro- visions hereinafter contained, and upon being satisfied that the same is for the best interest of all concerned, cause such resolution to be recorded and state- ment of assets and debts to be filed ; and until such record and filing shall have taken place, such resolution shall be of no validity. And any creditor of the debtor may inspect such record and statement at all reasonable times. The creditors may, by resolution passed in the manner and under the cir- cumstances aforesaid, add to, or vary the provisions of, any composition pre- viously accepted by thetn, without prejudice to any persons taking interests under such provisions who do not assent to such addition or variation. And any such additional resolution shall be presented to the court in the same manner and proceeded with in the same way and with the same consequences as the resolution by which the composition was accepted in the first instance. The provisions of a composition accepted by such resolution in pursuance of this section shall be binding on all the creditors whose names and addresses and the amounts of the debts due to whom are shown in the statement of the debtor produced at the meeting at which the resolution shall have been passed, but shall not aSect or prejudice the rights of any other creditors. Where a debt arises on a bill of exchange or promissory note, if the debtor shall be ignorant of the holder of any such bill of exchange or promissory note, he shall be required to state the amount of such bill or note, the date on which it falls due, the name of the acceptor and of the person to whom it is payable, and any other particulars within his knowledge respecting the same; and the insertion of such particulars shall be deemed a suificient description by the debtor in respect to such debt. Any mistake made inadvertently by a debtor in the statement of his debts may be corrected upon reasonable notice, and with the consent of a general meeting of his creditors. Every suf;h composition shall, subject to priorities declared in said act, provide for a pro-rat.i piiymont or satisfaction, in money, to the creditors of STATUTES OF PRACTICAL UTILITY. c:s^xXY\i reuch debtor in proportioD to the amount of their unsecured debts, or their debts in respect to which any such security shall have been duly surrendered and given up. The provisions of any composition made in pursuance of this section may be enforced by the court, on motion made in a summary manner by any person interested, and on reasonable notice ; and any disobedience of the order of the court made on such motion shall be deemed to be a contempt of court. Rules and regulations of court may be made in relation to proceedings of composition herein provided for in the same manner and to the same extent as now provided by law in relation to proceedings in bankruptcy. If it shall at any time appear to the court, on notice, satisfactory evidence, . and hearing, that a composition under this section cannot, in consequence of legal difficulties, or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the debtor, the court may refuse to accept and confirm such composition, or may set the same aside; and, in either case, the debtor shall be proceeded with as a bankrupt in conformity with the provi- sions of law, and proceedings may be had accordingly; and the time during ■which such composition shall have been in force shall not, in such case, be computed in calculating periods of time prescribed by said act. * CHAPTER FIVE. [* B. S., p. 990.] PSOTBCTION AND DISCHAEQB OV BANKKUPTS. Bankrupt subject to orders of court. Sbo. 5104. The bankrupt shall at all times, until his discharge, be subject to the order of the court, and shall, at the expense of the estate, execute all proper writings and instruments, and do all acts required by the court touching the assigned property or estate^ and to enable the assignee to demand, recover, and receive all the property and estate assigned, wherever situated. For neglect or refusal to obey any order of the court, the bankrupt may be committed and punished as for a contempt of -court. If the bankrupt is without the district, and unable to return and per- sonally attend at any of the times or do any of the acts which may be required pursuant to this section, and if it appears that such absence was not caused by willful default, and if, as soon as may be after the removal of such impediment, he offers to attend and submit to the order of the court in all respects, he shall be permitted so to do, with like effect as if he had not been in default. Waiver of suit by proof of debt. Sec. 5105. No creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all right of action against him; and all proceedings already commenced or unsatisfied judgments already obtained thereon against the bankrupt shall be deemed to be dis- cliarged and surrendered thereby. But a creditor proving his delt or claim shall not he hdd to hme waived his right.of action or suit against the lanhrupt where a ■discharge has teen refused, or the proceedings have been determined mthout a dis- charged Stay of suits. Sbo. 5106. No creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor's discharge shall have > Added by act of June 33, 1874, § 7. cxxxviii THE ENACTMENTS. been determined ; and any such suit or proceedings shall, upon the applica- tion of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge, provided there is no unreasona- ble delay on the part of the bankrupt in endeavoring to obtain his discharge, and provided, also, that if the amount due the creditor is in dispute, the suit, by leave of the court in bankruptcy, may proceed to judgment Jor the purpose of ascertaining the amount due, vf^hich amount may be proved in bankruptcy, but execution shall be stayed. Exemption from awest. Sec. 5107. No bankrupt shall be liable during the pendency of the proceedings in bankruptcy to arrest in any civil action, unless the same is founded on some debt or claim from which his discharge in bankruptcy would not release him. [* R. S., p. 991.] Application for discharge. * Sec. 5108. At any time after the expiration of six months from the adju- dication of bankruptcy, or if no debts have been proved against the bankrupt, or if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, [and within one year from the adjudication of bank- ruptcy, the bankrupt may apply to the court for a discharge from his debts.] before the final disposition of the cause, the bankrupt may apply to the eovrt foi- a discharge from his debts. This section shall apply in all eases heretofore or hereafter commenced.^ Nolice to creditors. Sec. 5109. Upon application for a discharge being made the court shall order notice to be given by mail to all creditors who have proved their debts, and by publication at least once a week in such newspapers as the court shall designate, due regard being had to the general circulation of the same in the district, or in that portion of the district in which the bankrupt and his creditors shall reside to appear on a day appointed for that purpose, and show cause why a discharge should not be granted to the bankrupt. Grounds for opposing discharge. Sec. 5110. No discharge shall be granted, or, if granted, shall be valid, in any of the following cases: First. If the bankrupt has willfully sworn falsely in his aflBdavit annexed to his petition, schedule, or inventory, or upon any examination in the course of the proceedings in bankruptcy, in relation to any material fact. Second. If the bankrupt has concealed any part of his estate or effects, or any books or writings relating thereto, or has been guilty of any fraud or negligence in the care, custody, or delivery to the assignee of the property belonging to him at the time of the presentation of his petition and inventory, excepting such property as he is permitted to retain under the provisions of this Title, or if he has caused, permitted, or suffered any loss, waste, or destruc- tion thereof. Third. If, within four months before the commencement of such proceed- ings, the bankrupt has procured his lands, goods, money, or chattels to be attached, sequestered, or seized on execution. Fourth. If, at any time after the second day of March, eighteen hundred and sixty-seven, the bankrupt has destroyed, mutilated, altered, or falsified ' Section 5108, was amended to read as given in italic, by Act of July 36, 1876, 19 Slat, at L. STATUTES OF PRACTICAL UTILITY, cxxxix any of his books, documents, papers, writings, or securities, or has made or been privy to the making of any false or fraudulent entry in any book of account or other document with intent to defraud his creditors; or has- removed or caused to be removed any part of his property from the district, with intent to defraud his creditors. Fifth. If the bankrupt has given any fraudulent preference contrary to the provisions of the act of March two, eighteen hundred and sixty-seven, to establish a uniform system of bankruptcy, or to the provisions of this Title, or has made any fraudulent payment, gift, transfer, conveyance, or assignment of any part of his property, or has lost any part thereof in gaming, or has admitted a false or fictitious debt against his estate. Sixth. If th^ bankrupt, having knowledge that any person has proved such false and fictitious debt, has not disclosed the ^ame to his assignee within one month after such knowledge. Seventh. If the bankrupt, being a merchant or tradesman, has not, at all times after the second day of March, eighteen hundred and sixty-seven, kept proper books of account. * Eighth. If the bankrupt, or any person in his behalf, [* B. 8., p. 993.} has procured the assent of any creditor to the discharge, or influenced the action of any creditor at any stage of the proceedings, by any pecuniary consideration or obligation. Ninth. If the bankrupt has, in contemplation of becoming bankrupt, made any pledge, payment, transfer, assignment, or conveyance of any part of his property, directly or indirectly, absolutely or conditionally, for the purpose of preferring any creditor or person having a claim against him, or who is or may be under liability for him, or for the purpose of preventing the property from coming into the hands of the assignee, or of being distributed in satisfaction of his debts. Tenth. If the bankrupt has been convicted of any misdemeanor under this Title. Speciflcation of grounds of opposition. Sec. 5111. Any creditor opposing the discharge of any bankrupt may file a specification in writing of the grounds of his opposition, and the court may in its discretion order any question of fact so presented to be tried at a stated session of the district court. Assets equal to fifty per cent, required. Sec. 5113. In all proceedings in bankruptcy commenced after the first day of January, eighteen hundred and sixty-nine, no discharge shall be granted to a debtior whose assets shall not be equal to fifty per centum of the claims proved against his estate upon which he shall be liable as the principal debtor, unless the assent in writing of a majority in number and value of his creditors to whom he shall have become liable as principal debtor, and who shall have proved their claims, is filed in the case at or before the time of the hearing of the application for discharge; but this provision shall not apply to those debts from which the bankrupt^ seeks a discharge which were contracted prior to the first day of January, eighteen hundred and sixty-nine. Final oath of bankrupt. Sbc. 5113. Before any discharge is granted, the bankrupt must take and subscribe an oath to the effect that he has not done, suffered, or been privy to any act, matter, or thing specified as a ground for withholding such discharge, or as invalidating such discharge if granted. •cxl THE^ ENACTMENTS. Discharge of bankrupt. Sec. 5114. If it shall appear to the court that the bankrupt has in all things conformed to his duty under this Title, and that he is entitled, under the provisions thereof, to receive a discharge, the court shall grant him a discharge from all his debts except as hereinafter provided, and shall give him a certificate thereof under the seal of the court. Form of certiflcate of discharge. Sec. 5115. The certificate of a discharge in bankruptcy shall be in substance in the following form : District court of the United States, district of Whereas has been duly adjudged a bankrupt under the Revised Statutes of the United States, Title '"Bankruptct," and appears to have conformed to all the requirements of law in that behalf, it is therefore ordered by the court that said , be forever discharged from all ■debts and claims which by said Title are made provable against his estate, and which existed on the day of , on which day the petition for adju- dication was flled by him (or against) him ; excepting such debts, if any, as are by law excepted from the operation of a discharge in bankruptcy. Given under my hand and the seal of the court at , in the said district, this day of , (Seal.) , Judge. [*5. S., p. 993.] * Second Bankruptcy. Sec. 5116. No person who has been discharged, and afterward becomes bankrupt on his own application, shall be again entitled to a discharge whose estate is insuffi- cient to pay seventy per centum of the debts proved against it, unless the assent in writing of three-fourths in value of his creditors who have proved their claims is filed at or before the time of application for discharge ; but a bankrupt who proves to the satisfaction of the court that he has paid all the debts owing by him at the time of any previous bankruptcy, or who has been voluntarily released therefrom by his creditors, shall be entitled to a discharge in the same manner and with the same effect as if he had not previously been bankrupt. Certain debts not released. Sbo. 5117. No debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy ; but the debt may be proved, and the dividend thereon shall be a payment on account of such debt. Liability of other persons not released. Sec. 5118. No discharge shall re- lease, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint-contractor, indorser, surety, or other- wise. Effect of discharge. Sec. 5119. A discharge in bankruptcy duly granted shall, subject to the limitations imposed by the two preceding sections, release the bankrupt from all debts, claims, liabilities and demands which were or might have been proved against his estate in bankruptcy. It may be pleaded by a simple averment that on the day of its date such discharge was granted to the bankrupt, setting a full copy of the same forth in its'terms as a full and complete bar to all suits' brought on any such debts, claims, liabilities, or de- mands. The certificate shall be conclusive evidence in favor of such bankrupt of the fact and the regularity of such discharge. Application to annul discharge. Seo. 5130. Any creditor of a bankrupt, STATUTES OF PRACTICAL UTILITY. cxlf whose debt was proved or provable against the estate in bankruptcy, who de- sires to contest the validity of the discharge on the ground that it was fraudu- lently obtained, may, at any time within two years after the date thereof, apply to the court which granted it to annul the same. The application shall be in writing, and shall specify which, in particular, of the several acts inen- tioned in section fifty-one hundred and ten it is intended to prove against the bankrupt, and set forth the grounds of avoidance ; and no evidence shall be admitted as to any other of such acts ; but the application shall be subject to. amendment at the discretion of the court. The court shall cause reasonable notice of the application to be given to the bankrupt, and order him to appear and answer the same, within such time as to the court shall seem proper. If, upon the hearing of the parties, the court finds that the fraudulent acts, or any of them, set forth by the creditor against the bankrupt, are proved, and that the creditor had no knowledge of the same until after the granting of the dis- charge, judgment shall be given in favor of the creditor, and the discharge of the bankrupt shall be annulled. But if the court finds that the fraudulent acts and all of them so set forth are not proved, or that they were known to the creditor before the granting of the discharge, judgment shall be rendered in favor of the bankrupt, and the validity of his discharge shall not be afiected by the proceedings. [* n. 8., p. 994.] CHAPTER SIX. PBOCEBDINGS PBCrTLIAR TO PABTNBBSHIPS AND COBPOBATIONS. haiikruptcy of partnerships. Sec. 5131. Where two or more persons who. are partners in trade are adjudged bankrupt, either on the petition of such partners or of any one of them, or on the petition of any creditor of the partners, a warrant shall issue, in the manner provided by this Title, ur)on which all the joint stock and property of the copartnership, and also all the separate estate of each of the partners, shall be taken, excepting such parts thereof as are hereinbefore excepted. All the creditors of the company, and the separate creditors of each partner, may prove their respective debts. The assignee shall be chosen by the creditors of the company. He shall keep separate accounts of the joint stock or property of the copartnership and of the sepa- rate estate of each member thereof; and after deducting out of the whole amount received by the assignee the whole of the expenses and disbursements, the net proceeds of the joint stock shall be appropriated to pay the creditors of the co-partnership, and the net proceeds of the separate estate of each part- ner shall be appropriated to pay his separate creditors. If there is any balance of the separate estate of any partner, after the payment of his separate debts, such balance shall be added to the joint stock for the payment of the joint credi- tors; and if there is any balance of the joint stock after payment of the joint debts, such balance shall be appropriated to and divided among the separate estates of the several partners according to their respective right and interest therein, and as it would have been if the partnership had been dissolved with- out any bankruptcy; and the sum so appropriated to the separate estate of each partner shall be applied to the payment of his separate debts. The certificate of discharge shall be granted or refused to each partner as the same would or ought to be if the proceedings had been against him alone. In all other respects the proceedings against partners shall be conducted in the like man- cxlii THE ENACTMENTS. ner as if they had been commenced and prosecuted against one person alone. If such copartners reside in different districts, that court in which the petition is first filed shall retain exclusive jurisdiction over the case. Of corporations and joint-stock companies. Sec. 5123. The provisions of this Title shall apply to all moneyed business or commercial corporations and joint-stock companies, and upon the petition of any officer of any such corpo- ration or company, duly authorized by a vote of a majority of the corporators at any legal meeting called for the purpose, or upon the petition of any credi- tor of such corporation or company, made and presented in the manner pro^ vided in respect to debtors, the like proceedings shall be had and taken as are provided in the case of debtors. All the provisions of this Title which apply to the debtor, or set forth his duties in regard to furnishing schedules and in- ventories, executing papers, submitting to examinations, disclosing, making over, secreting, concealing, conveying, assigning, or paying away his money or property, shall in like manner, and with like force, eifect, and penalties, apply to each and every officer of such corporations or company in relation to the same matters concerning the corporation or company, and the money and property thereof. All payments, conveyances, and assignments declared fraud- ulent and void by this Title when made by a debtor, shall in like manner, and to the like extent, and with like remedies, be fraudulent and void when made by a corporation or company. Whenever any corporation by proceedings under this Title is declared bankrupt, all its property and assets shall be distributed to the creditors of such corporations in the manner provided in this Title in respect to natural persons. But no allowance or * dis- [*iJ. "•«»"■ clxxxii THE ENACTMENTS. the property saved, or the proceeds thereof, or in 'personam, against the party at whose request and for whose benefit the salvage service has been performed. Process in petitory and possessory suits. No. 30. In all petitory and pos- sessory suits between part owners or adverse proprietors, or by the owners of a ship, or the majority thereof, against the master of a ship, for the ascertain- ment of the title and delivery of the possession, or for the possession only, or by one or more part owners against the others to obtain security for the return of the ship from any voyage undertaken without their consent, or by one or more part owners against the others to obtain possession of the ship for any voyage, upon giving security for the safe return thereof, the process shall be by an arrest of the ship, and by a monition to the adverse party or parties to appear and make answer to the suit. Execution on final decree. No. 21. In all cases of a final decree for the payment of money, the libellant shall have a writ of execution, in the nature of a. fieri facias, commanding the marshal or his deputy to levy and collect the amount thereof out of the goods and chattels, lands and tenements, or other real estate, of the defendant or stipulators. Beq^uisites of informations. No. 23. All informations and libels of infor- mation upon seizures for any breach of the revenue, or navigation, or other laws of the United States, shall state the place of seizure, whether it be on land or on the high seas, or on navigable waters within the admiralty and maritime jurisdiction of the United States, and the district within which the property is brought, and where it then is. The information or libel of infor- mation shall also propound in distinct articles the matters relied on as grounds or causes of forfeiture, and aver the same to be contrary to the form of the statute or statutes of the United States in such case provided, as the. case may require, and shall conclude with a prayer of due process to enforce the forfeit- ure, and to give notice to all persons concerned- in interest to appear and show cause at the return-day of the process why the forfeiture .should not be decreed. Requisites of libels. No. 23. All libels in instance causes, civil or maritime, shall state the nature of the cause ; as, for example, that it is a cause, civil and maritime, of contract, or of tort or damage, or of salvage, or of possession, or otherwise, as the case may be; and, if the libel be in rem, that the property is within the district; and, if in personam, the names and occupations and places of residence of the parties. The libel shall also propound and articulate in distinct articles the various allegations of fact upon which the libellant relies in support of his suit, so that the defendant may be enabled to answer dis- tinctly and separately the several matters contained in each article; and it shall cenclude with a prayer of due process to enforce his rights, in fern or in personam, (as the case may require,) and for such relief and redress as the court is competent to give in the premises. And the libellant may further rei.nire the defendant to answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel at the close or conclusion thereof. Amendments. No. 24. In all informations and libels in causes of admiralty and maritime jurisdiction, amendments in matters of form may be made at any tune, on motion to the court, as of course. And new coauts may be filed, and RULES OF COURT. clxxxiii amendments in matters of substance may be made, upon motion, at any time before the final decree, upon such terms as the court shall impose. And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libellant. Stipulation may be required from defendant. No. 35. In all cases of libels in pemonam, the court may, in its discretion, upon the appearance of the defen- dant, where no bail has been taken, and no attachment of property has been made to answer the exigency of the suit, require the defendant to give a stipu- lation, with sureties, in such sum as the court shall direct, to pay all costs and expenses which shall be awarded against him in the suit, upon the final ad- judication thereof, or by any interlocutory order in the progress of the suit. Teriflcation of claim : security for costs. No. 26. In suits in rem, the party claiming the property shall verify his claim on oath or solemn affirmation, stating that the claimant by whom or on -whose behalf the claim is made is the true and bona-Jide owner, and that no other pei-son is the owner thereof. And where the claim is put in by an agent or consignee, he shall also make oath that he is duly authorized thereto by the owner; or if the property be, at the time of the arrest, in the possession of the master of a ship, that he is the lawful bailee thereof for the owner. And, upon putting in such claim, the claimant shall file a stipulation, with sureties, in such sum as the court shall direct, for the payment of all costs and expenses which shall be awarded against him by the final decree of the courts or, upon an appeal, by the appellate court. Requisites of answer. "Ho. ^7. In all libels in causes of civil and maritime jurisdiction, whether in rem or in personam, ti^e answer of the defendant to the allegations in the libel shall be on oath or solemn aflBrmation ; and the answer shall be full and explicit and distinct to each separate article and sep- arate allegation in the libel, in the same order as numbered in the libel, and shall also answer ia like manner each interrogatory propounded at the close of the libel.' Exceptions to answer. No. 28. The libellant may except to the sufficiency, or fullness, or distinctness, or relevancy of the answer to the articles and inter- rogatories in the libel; and, if the court shall adjudge 'the same exceptions, or any of them, to be good and valid, the court shall order the'defendant forth- with, within such time as the court shall direct, to answer the same, and may further order the defendant to pay such costs as the court shall adjudge rea- sonable." Failure to answer. No. 29. If the defendant shall omit or refuse to make due answer to the libel upon the return-day of the process, or other day assigned by the court, the court shall pronounce him to be in contumacy and default; and thereupon the libel shall be adjudged to be taken ;)rc» con/esso against him, and the court shall proceed to hear the cttnse ex parte, and adjudge therein as to law and justice shall appertain. But the court may, in its discre- « ' Not always applicable where the sum does not exceed fifty dollars. See Rule No. 48, post, p. clxxxvi. ' Compare Rule No. 36, post, p. clxxxiv. clxxxiv THE ENACTMENTS. tion, set aside the default, and, upon the application of the defendant, admit bim to make answer to I'he libel, at any time before the final hearing and de- cree, upon his payment of all the costs of the suit up to the time of granting leave therefor. Proceedings on exceptions if alloWed. No. 30. In all cases where the de- fendant answers, but does not answer fully and explicitly and distinctly to all the matters in any article of the libel, and exception is taken thereto by the libellant, and the exception is allowed, the court may, by attachment, compel the defendant to make further answer thereto, or may direct the matter of the exception to be taken 'pro confesso against the defendant, to the full purport ' and effect of the article to which it purports to answer, and as if no answer had been out in thereto. Defendant's privilege. No. 31. The defendant may object, by his answer, to answer any allegation or interrogatory contained in the libel, which will expose him to any prosecution or punishment for a crime, or for any penalty or any forfeiture of his property for any penal offense. Defendant may interrogate libellant. No. 83. The defendant shall have a right to require the personal answer of the libellant upon oath or solemn affir- mation to any interrogatories which he may, at the close of his answer, pro- pound to the libellant touching any matters charged in the libel, or touching any matter of defense set up in the answer, subject to the like exception as to matters which shall expose the libellant to any prosecution, or punishment, oi forfeiture, as is provided in the thirty-first rule. In default of due answer by the libellant to such interrogatories, the court may adjudge the libellant to be in default, and dismiss the libel, or may compel his answer in the premises by attachment, or take the subject-matter of the interrogatory pro confeasa in favor o£ the defendant, as the court, in its discretion, shall deem most fit to promote public justice. Answers from absent parties. No. 33. Where either the libellant or the defendant is out of the country, or unable, from sickness or other casualty, to make an answer to any interrogatory on oath or solemn affirmation at the proper time, the court may, in its discretion, in furtherance of the due admin- istration ot justice, dispense therewith, or may award a commission to take the answer oi tin defendant when and as soon as it may be practicable. Intervenors. No. 34. If any third person shall intervene in any cause of admiralty and maritime jurisdiction in rem for his own interest, and he is entitled, according to the cause of admiralty proceedings, to be heard for his own interest therein, he shall propound the matter in suitable allegations, to which, if admitted by the court, the other party or parties i» the suit may be required, by order of the court, to make due answer; and such further pro- ceedings shall be had and decree rendered by the court therein as to law and justice shall appertain. But every such intervenor shall bo required, upon filing his allegations, to give a stipulation, with sureties, to abide by the final decree rendered in the cause, and to pay all such costs and expenses and dam- , ages as shall be awarded by the court upon the final decree, whether it is ren- dered in the original or appellate court. Taking stipulations. No. 35. The stipulations required by the last pre- ceding rule, or on appeal, or in any other admiralty or maritime pro- .liULES OF COURT. clxxxv ceeding, shall be given and taken in the manner prescribed by rule fifth as amended. Exceptions to pleadings. No. 36. Exceptions may be taken to any libel, allegation, or answer for surplusage, irrelevancy, impertinence, or scandal ; and if, upon reference to a master, the exception shall be reported to be so objectionable, and allowed by the court, the matter shall be expunged, at the cost and expense of tlie party in whose libel or answer the same is found.' Examination of garnishee. No. 37. In cases of foreign attachment, the garnishee shall be requii-ed to answer on oath or solemn afBrmation as to the debts, credits, or effects of the defendant in his hands, and to such interroga- tories touching the same as maybe propounded by the libellant; and if he shall refuse or neglect so to do, the court may award compulsory process in personam against him. If he admits any debts, credits, or effects, the same shall be held in his hands, liable to answer the exigency of the suit. Control of funds attached. No. 38. In cases of mariners' wages, or bot- tomry, or salvage, or other proceedings in rem, where freighter other proceeds of property are attached to or are bound by the suit, which are in the hands or possession of any person, the court may, upon due application, by petition of the party interested, require the party charged with the possession thereof to appear and show cause why the same should not be brought into court to answer the exigency of the suit ; and, if no sufficient cause be shown, the court may order the same to be brought into court to answer the exigency of the suit, and, upon failure of the party to comply with the order, may award an attachment, or other compulsive process, to compel obedience thereto. Dismissal for non-prosecution. No. 39. If, in any admiralty suit, the libellant shall not appear and prosecute his suit, according to the course and orders of the court, he shall be deemed in default and contumacy; and the court may, upon the application of the defendant, pronounce the suit to be deserted, and the same may be dismissed with costs. Opening default. No. 40. The court may, in its discretion, upon the mo- tion of the defendant and the payment of costs, rescind the decree in any suit in which, on account of his contumacy and default, the matter of the libel shall have been decreed against him, and grant a rehearing thereof at any time within ten days after the decree has been entered, the defendant submit- ting to such further orders and terms in the premises as the court may direct. Sales of property — how made. No. 41. All sales of property under any decree of admiralty shall be made by the marshal or his deputy, or other proper officer assigned by the court, where the marshal is a party in interest, in pur- suance of the orders of the court; and the proceeds thereof, when sold, shall be forthwith paid into the registry of the court by the officer making the sale, to be disposed of by the court according to law. Custody of moneys. No. 43. All moneys paid into the registry of the court shall be deposited in some bank designated by the court, and shall be so de- posited in the name of the court, alid shall not be drawn out, except by a check ■ or checks, signed by a judge of the court, and countersigned by the clerk, ' Compare Rule No. 28, ante, p. clxxxiii. clxxxvi THE enact:jexts.^ stating on whose account and for whose use it is drawn, and in what suit and out of what fand in particular it is paid. The clerk shall keep a regular book, containing a memorandum and copy of all the checks so drawn and the date thereof. Petition for funds in registry. No. 43. Any person having an interest in any proceeds in the registry of the court shall have a right, by petition and summary proceeding, to intervene pro inieresae suo for a delivery thereof to him; and upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon, and to decree therein according to law and justice. And if such petition or claim shall be deserted, or upon a heating, be dismissed, the court may, in its discretion, award costs against the petiticmer in favor of the adverse party. Eefereiices. No. 44. In cases where the court shall deem it expedient or necessary for the purposes of justice, the court may refer any matters arising in the progress of the suit to one or more commissioners, to be appointed by the court, to hear the parties and make report therein. And sucli commis- sioner or commissioners shall have and possess all the powers in the premises wiiich are usually given to or exercised by masters in chancery in reference to them, including the power to administer oaths to and to examine the parties and witnesses touching the premises. Appeals to Ciixuit Court. No. 45. All appeals from the district to the cir- cuit court must be made while the court is sitting, or within such other period as shall be designated by the district court by its general rules, or by an order specially made in the particular suit; or in case no such rule or order be made, then within thirty days from the rendering of the decree. Buli-s of District and Circuit Courts. No. 46. [District and circuit courts to regulate their practice in cases not here provided for.] Bail : Imprisonment for debt. No. 47. In all suits in personam, where a simple warrant of arrest issues and is executed, bail shiill be taken by the mar- shal and the court in those cases only in which it is required by the laws of the State where an arrest is made upon similar or analogous process issuing from the State courts. And imprisonment for debt, on process issuing out of the admiralty «ourt, is abolished in all cases where, by the laws of the State in which the court is held, imprisonment for debt has been, or shall be hereafter, abolished upon similar or analogous process issuing from a State court. Answers. No. 48. The twenty-seventh rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars, exclusive of costs, unless the district court shall be of opinion that the proceedings prescribed by that rule are necessary for the purposes of justice in the case before the court. All rules and parts of rules heretofore adopted, inconsistent with this order, are hereby repealed and annulled. Further proof. No. 49. Further proof, taken in a circuit court upon an admiralty appeal, shall be by deposition, taken before s'>me commissioner appoint d by a circuit court, pursuant to the acts of Congress in that behalf, or before some ofiicer authorized to take depositions by the thirtieth section of the act of Congress of the 34th of September, 1789, upon an oral examina- RULES OF COURT. clxxXTli tion and cross examination, unless tlie court in which such appeal shall be pending, or one of the judges thereof, shall, upon motion, allow a commission to issue to take such depositions upon written interrogatories and cross-inter- rogatories. When such deposition shall be taken by oral examination, a noti- fication from the magistrate before whom it is to be taken, or from the clerk of the court in which such appeal shall be pending, to the adverse party, to be present at the taking of the same, and to put interrogatories, if lie think fit, shall be served on the adverse party or his attorney, allowing time for their attendance after being notified not less than twenty-four heurs, and, in addi- tion thereto, one day, Sundays exclusive, for every twenty miles' travel ; pro- vided, that the court in which such appeal may be pending, or either of the judges thereof, may, upon motion, increase or diminish the length of notice above required.' Oral evidence. No. 50. When oral evidence shall be taken down by the clerk of the district court, pursuant to the above-mentioned section of the act of Congress, and shall be transmitted to the circuit court, the same may be used in evidence on the appeal, saving to each party the right to take the depositions of the same witnesses, or either of them, if he should so elect. Answer of new matter : Amendment. No. 51. When the defendant, in his answer, alleges new facts, these shall be considered as denied by the libellant, and no replication, general or special, shall be allowed. But within such time after the answer is filed as shall be fixed by the district court, either by gen- eral rule or by special order, the libellant may amend his libel so as to confess and avoid, or explain or add to, the new matters set forth in the answer; and within such time as may be fixed, in like manner, the defendant shall answer such amendments. Eecords on appeal. No. 53. The clerks of the district courts shall make up the records to be transmitted to the circuit courts on appeals, so that the same shall contain the following: 1. The style of the court. 2. The names of the parties, setting forth the original parties, and those who have become parties before the appeal, if any change has taken place. 3. If bail was taken, or property was attached or arrested, the process of the arrest or attachment and the service thereof; all bail and stipulations; and, if any sale has been made, the orders, warrants, and reports relating thereto. 4. The libel, with exhibits annexed thereto. 5. The pleadings of the defendant, with the exhibits annexed thereto. 6. The testimony on the part of the libellant, and any exhibits not annexed to the libel. 7. The testimony on the part of the defendant, and any exhibits not an- nexed to his pleadings. 8. Any order of the court to which exception was made. 9. Any report of an assessor or assessors, if excepted to, with the orders of the court respecting the same, and the exceptions to the report. If the report •was not excepted to, only the fact that a reference was made, and so much of the report as shows what results were arrived at by the assessor, are to be stated. ' Rul:s No. 49 and 50 were adopted at the December Term, 1851. clxxxviii THE ENACTMENTS. 10. The final decree. 11. The prayer for an appeal, and the action of the district court thereon; and no reasons of appeal shall be filed or inserted in the transcript. The following shall be omitted : 1. The continuances. 3. All motions, rules, and orders not excepted to which are merely prepara- tory for trial. 3. The commissions to take depositions, notices therefor, their captions, and certificates of their being sworn to, unless some exception to a deposition ia the district court was founded on some one or more of these; in whinh case, so much of either of them as may be involved in the exception shall be set out. In all other cases, it shall be sufficient to give the name of the witness, and to copy the interrogatories and answers, and to state the name of the commissioner, and the place where and the date when the deposition was sworn to; and, in copying all depositions taken on interrogatories, the answer shall be inserted immediately following the question. The clerk of the district court shall page the copy of the record thus made up, and shall make an index thereto, and he shall certify the entire document, at the end thereof, under the seal of the court, to be a transcript of the record of the district court in the cause named at the beginning of the copy made up pursuant to this rule; and no other certificate of the record shall be needful or inserted. Security by respondent in cross-libel. No. S3. Whenever a cross-libel is filed upon any counter-claim, arising out of the same cause of action for which the original libel was filed, the respondents in the cross-libel shall give security in the usual amount and form, to respond in damages, as claimed in said cross- libel, unless the court, on cause shown, shall otherwise direct; and aU pro- ceedings upon the original libel shall be stayed until such security shall be given. Libel of ship for embezzlement by master or crew. N». 54. When any ship or vessel shall be libeled, or the owner or owners thereof shall be sued, for any embezzlement, loss, or destruction by the master, officers, mariners, passengers, or any other person or persons, of any property, goods, or mer- chandise, shipped or put on board of such ship or vessel, or for any loss, dam- age, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred, without the privity or knowledge of such owner or owners, and he or they shall desire to claim the benefit of limi- tation of liability provided for in the third and fourth sections of the said act above recited,' the said owner pr owners shall and may file a libel or petition in the proper district court of the United States, as hereinafter specified, set- ting forth the facts and circumstances on which such limitation of liability is claimed, and praying proper relief in that behalf ; and thereupon said court, having caused due appraisement to be had of the amount or value of the inter- est of said owner or owners, respectively, in such ship or vessel, and her freight, for the voyage, shaU make an order for the payment of the same into ' Act of March 3, 18S1, entitled, "An act to limit the liability of ship-owners,- and for other purposes," RULES OF COURT. clxxxix court, or for the giving of a stipulation, with sureties, for payment thereof into court whenever the same shall be ordered; or, if the said owner or owners shall so elect, the said court shall, without such appraisement, make an order for the, transfer by him or them of his or their interest in such vessel and freight, to a trustee to be appointed by the court under the fourth section of said act; and, upon compliance with such order, the said court shall issue a monition against all persons claiming damages for any such embezzlement, loss, destruction, damage, or injury, citing them to appear before the said court and make due proof of their respective claims at or before a certain time to be named in said writ, not less than three months from the issuing of the same; and public notice of such monition shall be given as in other cases, and such further notice Served through the post-offlce, or otherwise, as the court, in its discretion, may direct ; and the said court shall also, on the ap- plication of the said owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims. Proving claim before commissioner. No. 55. Proof of all claims which shall be presented in pursuance of said monition shall be made before a com- missioner, to be designated by the court, subject to the right of any person interested to question or controvert the same; and, upon the completion of said proofs, the commissioner shall make report of the claims so proven, and upon confirmation of said report, after hearing any exceptions thereto, the moneys paid or secured to be paid into court as aforesaid, or the proceeds of said ship or vessel and freight (after payment of costs and expenses), shall be divided ^0 rato amongsE the several claimants, in proportion to the amount of their respective claims, duly proved and confirmed as aforesaid, saving, however, to all parties any priority to which they may be legally entitled. Requisite of libel or petition. No. 56. In the proceedings aforesaid, the said owner or owners shall be at liberty to contest his or their liability, or the liability of said ship or vessel for said embezzlement, loss, destruction, dam- age, or injury (independently of the limitation of liability claimed under said act), provided that, in his or their libel or petition, he or they shall state the facts and circumstances by reason of which exemption from liability is claimed ; and any person or persons claiming damages as aforesaid, and who shall have presented his or their claim to the commissioner under oath, shall and may answer such libel or petition, and contest the right of the owner or owners of said ship or vessel, either to an exemption from liability, or to a limitation of liability under the said act of Congress, or both. Jurisdiction of District Co.n-r . No. 57. The said libel or petition shall be filed and the said proceedings had in any district court of the United States in which said ship or vessel may be libeled to answer for any such embezzle- ment, loss, destruction, damage, or injury; or, if the said ship or vessel be not libeled, then in the district court for any district in which the said owner or owners may be sued in that behalf. If the ship have already been libeled and sold, the proceeds shall represent the same for the purpqses of these rules. CXC THE ENACTMENTS. GENERAL ORDERS IN BANKRDFTCT, ' Adoptbd April 13, 1875. It is hereby ordered by the Chief -Justice and Associate Justices of the Sn- preme Court of the United States, in pursuance of the powers conferred upon them by the several acts of Congress in that behalf, that the general orders in bankruptcy heretofore established by the court be, and they are hereby, amendtd so as to read as follows : Duties of clerks of District Courts. Order No. 1. [Prescribes the duties of clerks of district courts; and requires that a brief memorandum of the pro- ceedings in each case shall at all times be open for public inspection.] Process. No. 3. All process, summons, and subpoenas shall issue out of the court, under the seal thereof, and be tested by the clerk; and blanks, with the signature of the clerk and seal of the court, may, upon application, be furnished to the registers. Appearance. No. 3. Proceedings in bankruptcy may be conducted by the bankrupt in person in his own behalf, or by a petitioning or opposing credi- tor; but a creditor will only be allowed 'to manage before the court his indi- vidual interest. Either party n)ay appear and conduct the proceedings by attorney, who shall be an attorney or counselor authorized to practice in the circuit or district court. The name of the attorney or counselor, with his place of residence and business, shall be entered upon the docket with the date of the entry. All papers or proceedings offered by an attorney to be filed ■ shall be endorsed as above required; and orders granted on motion shall con- tain the name of the party or attorney making the motion. Notices and orders which are not, by the act or by these rules, required to be served on the party personally, may be served upon his attorney. Commencement of proceedings. No. 4. Upon the filing of a petition in case of voluntary bankruptcy, or as soon as any adjudication of bankruptcy is made upon a petition filed in case of involuntary bankruptcy, the petition shall be referred to one of the registers, in such manner as the district court shall direct, and the petitioner shall furnish the register with a copy of .the papers in the case, and thereafter all the proceedings required by the act shall be had before him, except such as are required by the act to be had in the district court, or by special order of the district judge, unless some other reg- ister is directed to act in the case. The order designating the register to act upon any petition shall name a day upon which the bankrupt shall attend before the register, from which date he shall be subject to the orders of the court in all matters relating to his bankruptcy, and may receive from the register a protection against arrest, to continue until the final adjudication on his application for a discharge, unless suspended or vacated by order of the court. A copy of the order shall forthwith be sent by mail to the register, or be delivered to him personally, by the clerk or aVt\e,x officer of the court. Registers. No. 5. The time when and the place where the registers shall act upon the matters arising under the several cases referred to them shall be fixed by special order of the district court, or by the register, acting under the authority of a general order, in each case made by the district court; and at RULES OF COURT. cxci such times and places the registers may perform the acts which they are em- powered to do by the act, and conduct proceedings in relation to the following matters, when uncontested, viz. : making adjudication of bankruptcy on peti- tion of the debtor; administering oaths ; receiving the surrender of a bankrupt ; granting protection thereon ; giving requisite direction for notices, advertise- ments, and other ministerial proceedings; taking proofs of claims; ordering payment of rates and taxes, and salary or wages of persons in the employment of the assignee ; ordering amendments, or inspection, or copies, or extracts of any proceedings; taking accounts of proceeds of securities held by any credi- tor; taking evidence concerning expenses and charges against the bankrupt's estate ; auditing and passing accounts of assignees ; proceedings for the decla- ration and payment of dividends and generally dispatching all administrative business of the court in matters of bankruptcy, and making all requisite uncon- tested orders and directions therein, which are not, by the acts of Congress concerning bankruptcy, specifically required to be made, done or performed by the district court itself; all of which shall be subject to the control and review of the said court ; provided, however, that by the surrender of a bankrupt men- tioned and referred to in this order and in the act in that behalf is intended and understood a personal submission of the bankrupt himself for full examina- tion and disclosure in reference to his property and affairs, and not a surrender or delivery of the possession of his property. Dispatch of business. No. 6. Every register, in performing the duties required of him under the act and by these orders, or by orders of the district court, sha'l use all reasonable dispatch, and shall not adjourn the business but for good cause shown. Six hours' session shall constitute a day's sitting, if the business requires ; and when there is time to complete the proceedings in prog- ress within the day, the party obtaining any adjournment or postponement thereof may be charged, if the court or register think proper, with all the costs incurred in consequence of the delay. Examination and filing of papers. .No. 7. It shall be the duty of the regis- ter to examine the bankrupt's petition and schedules filed therewith, and to certify whether the same are correct in form, or, if deficient, in what respect they are so; and the court may allow amendments to be made in the petition and schedules upon the application of the petitioner, upon proper cause shown, at any time prior to the discharge of the bankr\ipt. The register shall indorse uppn>each paper filed with him the time of filing, and at the close of the last examination of the bankrupt, the register having charge of the case shall file all the papers relating thereto in the ofHce of the clerk of the district court, and these papers, together with those on file in the clerk's office, and the entries in the minute-book, shall constitute the record in each case ; and the clerk shall cause the papers in each case to be bound together. Orders by the register. No. 8. Whenever an order is made by a register in any proceeding in which notice is required to be given to either party before the order can be made, the fact that the notice was given, and the substance of the evidence of the manner in which it was given, shall be recited in the preamble to the order, and the fact also stated that no adverse interest was represented at the time and place appointed for the hearing of the matter upon such notice ; and whenever an order is made where adverse interests are represented before cxcii THE ENACTMENTS. the register, the fact shall be stated that the opposing parties consented thereto, or that the adverse interest represented made no opposition to the granting of such order; provided, however, if any party interested adversely to such order shall not, before the hearing of the application therefor, give reasonable notice in writing to the register that he intends to contest the same, and objects to its being heard by the register, the same shall be heard Ly the register as by con- sent. But all such orders may be reviewed by the district court at the request of any party aggrieved, upon his paying the cost of certifying the matter to said court within ten days from the making of the order; which request and payment shall be entered by the register on his docket; and he shall thereupon forthwith certify the said matter to the court, and said court, upon making its decision, may make such order with regard to the costs as justice shall require. Notification to assignee of his appointment. No. 9. It shall be duty of the register, immediately upon the appointment of an assignee as presciibed in sec- tions twelve and thirteen * of the act. fshould he not be present at such meeting,) to notify him, by personal or mail seiT-ice, of his appointment ; and in such notification the assignee so appointed shall be required to give notice forthwith to the register of his acceptance or rejection of the trust. No official assignee shall be appointed by the court or judge ; nor any gen- eral assignee to act in any class of cases. No additional assignee shall be appointed by the court or judge under sec- tion thirteen t of the act, except upon petition of one-fourth in number and value of the creditors who have proved their debts, and upon good and suffi- cient cause shown. Testimony, how taken. No. 10. The examination of witnesses before a register in bankruptcy may be conducted by the party in person or by his coun- sel or attorney, and the witnesses shall be subject to examination and cross- examination, which shall be had in conformity with the mode now adopted in courts of law. The depositions upon such examinations shall be taken down in writing by or under the direction of the register in the form of narrative, unless he determines that examination shall be by question and answer in special instances, and when completed shall be read over to the witness and signed by him in the presence of the register. Any question or questions which may be objected to shall be noted by the register upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the question ; and the court shall have power to deal with the costs of incom- petent, immaterial, or irrelevant depositions or parts of them as may be just. In case of refusal of a witness to attend, or to testify before a register, the same proceedings may be had as are now authorized with respect to witnesses to be produced on examination before an examiner of any of the courts of the United States on written interrogatories. Minutes before register, filing, &c. No. 11. A memorandum made of each act performed by a register shall be in suitable form, to be entered upon the minute-book of the court, and shall be forwarded to the clerk of the court, and not later than by mail the next day after the act has been performed. When- * §§ 5033, 5034, B. S. \\ 5034, B, 8. RULES OF COURT. cxciii ever an issue is raised before the register ia any proceedings, either of fact or law, he shall cause the same to be stated in writing in the manner required by the fourth and dxth * sections of the act, and certify the same forthwith to the district judge for his decision. The pendency of the issue undecided before a judge shall not necessarily suspend or delay other proceedings before the register or court in the case. Accounts for seryices of register and marshal. No. 13. [Requires every register and marshal to keep and return accounts of expenses.] Marshal as ines<:enger. Surrender of property. No. 13. In cases of volun- tary bankruptcy, the bankrupt, after being decreed such,, and after the appoint- ment of an assignee or trustee, and assignment duly made, shall, unless the court otherwise direct, deliver possession of all his property and assets (includ- ing evidences of debt and books of account) to said- assignee or trustee, unless at or after such decree and before said assignment the court, on application of any creditor or creditors, and upon good cause shown by affidavit, shall deem it necessary for the interest of the creditors that possession of such property and assets should be sooner delivered up ; in which case, as in cases of involun- tary bankruptcy, the court may order said property and assets to be taken possession of by the marshal as messenger, directions for which may be inserted, in pursuance of such order, in the original warrant in bankruptcy, or in a special warrant to be issued for that purpose. It shall be the duty of the marshal as messenger to take possession of the property of the bankrupt when required thereto by warrant or order of the court, and to deliver the same to the assignee or trustee when appointed and assignment made as aforesaid. The marshal, when taking possession as afore- said, shall make an inventory of the property and assets by him received, aud deliver the same, with the said property and assets, to said assignee or trustee, who shall verify the same, and if found correct and full no further inventory shall be required : Provided, however, That if any goods or effects so taken into possession as the property of the bankrupt shall be claimed by or in behalf of any other person, the marshal shall forthwith notify the petitioning creditor, or assignee, if one be appointed, of such claim, and may, within five days after so giving notice of such claim, deliver them to the claimant or his agent, unless the petitioning creditor or party at whose instance possession is taken shall, by bond with sufficient sureties, to be approved by the marshal, indem- nify the marshal for the taking and detention of such goods and efleots, and the expenses of defending against all claims thereto; and, in case of such in- demnity, the marshal shall retain possession of such goods and eflects, and proceed in relation thereto as if no such claim had been made : And provided further, That in case the petitioning creditor claims that any property not in the possession of the bankrupt belongs to him, and should be taken by the marshal, the marshal shall not be bound to take possession of the same, unless indemnified in like manner. He shall also, in case the bankrupt is absent or cannot be found, prepare a schedule of the names and residences of his credi- tors, and the amount due to each, from the books or other papers of the bank- rupt that may be seized by him under his warrant, and from any other sources * §§ 5009, 5010, B. 8. Vol. I.— N cxciv THE ENACTMENTS. of information ; but all statements upon which his return shall be made shall be in writing, and sworn to by the parties making them, before one of the registers in bankruptcy of the court, or a commissioner of the courts of the United States. In oases of voluntary bankruptcy, the marshal may appoint special deputies to act, as he may designate, in one or more cases, as messengers, for the purpose of causing the notices to be published and served as required in the eleventh ' section of the act, and for no other purpose. In giving the notices required by the third subdivision of the eleventh ' section of the act, it shall be sufficient to give the names, residences, and the amount of the debts (in figures) due the several creditors, so far as known, and no more. Petitions and amendments. No. 14. All petitions, and the schedules filed therewith, shall be printed or written out plainly, and without abbreviation or interlineation, except where such abbreviation and interlineation may be for the purpose of reference; and whenever any amendments are allowed, they shall be written and signed by the petitioner on a separate paper, in the same manner as the original schedules were signed and verified ; and, if the amend- ments are made to diflerent schedules, the amendments to each schedule shall be made separately, with proper reference to the schedule proposed to be amended, and each amendment shall be verified by the oath of the petitioner, in the same manner as the original schedules. Priority of actions, (inrolaiitary bankruptcy.) No. 15. Whenever two or more petitions shall be filed by creditors against a common debtor, alleging separate acts of bankruptcy committed by said debtor on different days within six months prior to the filing of said petitions, and the debtor shall appear and show cause against an adjudication of bankruptcy against him on the petitions, that petition shall be first heard and tried which alleges the commis- sion of the earliest act of bankruptcy; and in case the several acts of bank- ruptcy are alleged in the different petitions to have been committed on the same day, the court before which the same are pending may order them to be consolidated, and proceed to a hearing as upon one petition; and if an adjudi- cation of bankruptcy be made upon either petition, or for the commission of a single act of bankruptcy, it shall not be necessary to p^-oceed to a hearipg upon the remaining petitions, unless proceedings be taken by the debtor for "the purpose of causing such adjudication to be annulled or vacated. Filing petitions in different districts. No. 16. In case two or more peti- tions shall be filed against the same individual in different districts, the first hearing shall be had in the district in which the debtor has his domicile, and such petition may be amended by inserting an allegation of an act of bank- ruptcy committed at an earlier date than that first alleged, if such earlier act is charged in either of the other petitions; and in case of two or more petitions against the same firm in different courts, each having jurisdiction over the case, the petition first filed shall be first heard, and may be amended by the insertion of an allegation of an earlier act of bankruptcy than that first alleged, if such earlier act is charged in either of the other petitions, and, in either case, the proceedings upon the other petitions may be stayed until an adjudication is made upon the petition first heard; and the court which makes the first adjudi- ■ §§ 5019, 5032, B. S. » § 5033, R. S.; § 5, act 1874. RULES OF COURT. cxcv cation of bankruptcy shall retain jurisdiction over all proceedings therein until the same shall be closed. In case two or more petitions for adjudication of bankruptcy shall be filed in difi'erent districts by different members of the same copartnership for an adjudication of the bankruptcy of said copartner- ship, the court in -which the petition is first filed having jurisdiction, shall take and retain jurisdiction over all proceedings in such bankruptcy until the same shall be closed; and if such petitions shall be filed in the same district, action shall be first had upon the one first filed. Kedemptions of property and compounding claims. No. 17. Whenever it may be deemed for the benefit of the estate of a bankrupt to redeem and dis- charge any mortgage or other pledge, or deposit or lien upon any property, real or personal, or to relieve said property from any conditional contract, and to tender performance of the conditions thereof, or to compound any debts or other claims or securities due, or belonging to, the estate of the bankrupt, the assignee, or the bankrupt, or any creditor who has proved his debt, may file his petition therefor in the ofiice of the clerk of the district court ; and there- upon the court shall appoint a suitable time and place for the hearing thereof, notice of which shall be given in some newspaper, to be desigoated by the court, at least ten days before the hearing, so that all creditors and other per- sons interested may appear and show cause, if any they have, why an order should not be passed by the court upon the petition authorizing such act on the part of the assignee. Proceedings in case of copartnerships. No. 18. In case one or more mem- bers of a copartnership refuse to join in a petition to have the firm declared bankrupt, the parties refusing shall be entitled to resist the prayer of the peti- tion in the same manner as if the petition had been filed by a creditor of the partnership, and notice of the filing of the petition shall be given to him in the same manner as provided by law and by these rtiles in the case of a debtor petitioned against; and that he shall have the right to appear at the time fixed by the court for the hearing of the petition, and to make proof, if he can, that the copartnership is not insolvent, or has not committed an act of bankruptcy, and to take all other defenses which any debtor proceeded against is entitled to take by the provisions of the act; and in case an adjudication of bankruptcy is made upon the petition, such copartner shall be required to fur- nish to the marshal, as messenger, a schedule of his debts and an inventory of his property, in the same manner as is required by the act in cases of debtors against whom adjudication of bankruptcy shall be made. Duties of assig'nees. No. 19. The assignee shall, immediately on entering upon his duties, prepare a complete inventory of all the property of the bank- rupt that comes into his possession, except where an inventory is furnished to him by the marshal; in which case, having verified the same, he shall add thereto a certificate that the same is correct, or that the same is correct as modified by a supplemental inventory to be annexed thereto ; in which supplemental inventory he shall state any deficiency of assets made in the marshal's inventory, and shall add any property or assets not contained therein. The assignee shall make report to the court, within twenty days after receiving the deed of assignment, of the articles set oflE to the bankrupt by him, cxcvi THE ENACTMENTS. according to the provisions of the fourteenth section ' of the act, with the estimated value of each article, and any creditor may take exceptions to the determination of the assignee within twenty days after the filing of -the report. The register may require the exceptions to be argued before him, and shall certify them to the court for final determination at the request of either party. The substance of each monthly return of the assignee shall be sent by the regis- ter to any creditor who shall request it and pay the fee provided for notices to creditors. In case the assignee shall neglect to file any report oi: statement which it is made his duty to file or make by the bankrupt act, or any general order in bankruptcy, within five days after the same shall be due, it shall be the duty of the register to make an order requiring the assignee to show cause before the court, at a time specified in the order, why he should not be removed from office. The register shall cause a copy of the order to be served upon the assignee at least seven days before the time fixed for the hearing, and proof of the service thereof to be delivered to the clerk. All accounts of assignees are to be referred as of course to the register for audit, unless otherwise specially ordered by the court. Composition with creditors, (arbitration.) No. 30. Whenever an assignee shall make application to the court for authority to submit a controversy aris- ing in the settlement of demands against the bankrupt's estate, or of debts due to it, to the determination of arbitrators, or for authority to compound and settle such controversy by agreement with the other party, the subject-matter of the controversy and the reasons why the assignee thinks it proper and most for the interest of the creditors that it should be settled by arbitration or other- wise shall be set forth clearly and distinctly in the application ; and the court, upon examination of the same, may immediately proceed to take testimony and make an order thereon, or may direct the assignee to give notice of the application either by publication oi- by mail, or both, to the creditors who have proved their claims, to appear and show cause, on a day to be named in the order and notice, why the application should not be granted, and may make such order thereon as may be just and proper. Disposal of property by assignee. Ho 31. Upon application to th,e court, and for good cause shown, the assignee may be authorized to sell any specified portion of the bankrupt's estate at private sale; in which case he shall keep an accurate account of each article sold, and the price received therefor, and to whom sold ; which account he shall file with his report at the first meeting of creditors after the sale. In making sale of the franchise of a corporation it may be offered in fractional parts or in certain number of shares corresponding to the number of shares in the bankrupt corporation. Perishable property. No. 33. In all cases where goods or other articles come into possession of the messenger or assignee which are perishable, or liable to deterioration in value, the court may, upon application, in its discretion, order the same to be sold, and the proceedings deposited in court. Service of njtice. No. 33. The notice provided by the eighteenth sec- tion ' of the act shall be served by the marshal or his deputy, and notices to ' Rev. Stat. § S039. RULES OF COURT. cxcvii the creditors of the time and place of meeting provided by the section ' shall be given through the mail by letter, signed by the clerk of the court. Every envelope containing a notice sent by' the clerk or messenger shall have printed on it a direction to the postmaster at the place to which it is sent to return the same within ten days unless called for. Opposition to discharg-e. No. 34. A creditor opposing the application of a bankrupt for discharge shall enter his appearance in opposition thereto on the day when the creditors are required to show cause, and shall file his specification of the grounds of his opposition, in writing, within ten days thereafter, unless the time shall be enlarged by order of the district court in the case, and the court shall thereupon make an order as to the entry of said case for trial on the docket of the district court, and the time within which the same shall be heard and decided. Second and third meeting of creditors. No. 25. Whenever any bank- rupt shall apply for his discharge, within three months from the date of his being adjudged a bankrupt, under the provisions of the twenty-ninth section' of the act, the court may direct that the second and third meetiigs of cred- itors of said bankrupt required by the twenty-seventh and twenty-eighth sec- tions ■■ of said act, shall be had on the day which may be fixed in the order of notice for the creditors to appear and show cause why a discharge should not be granted such bankrupt ; and the notices of such meeting shall be sufficient, if it be added to the notfce to show cause, that the second and third meetings of said creditors shall be had before the register upon the same day that cause may be shown against the discharge, or upon some previous days or day. Appeals. No. 26. Appeals in equity from the district to the circuit court, and from the circuit to the Supreme Court of the United States, shall be regu- lated by the rules governing appeals in equity in the courts of the United States. Any supposed creditor who takes an appeal to the circuit court from the decision of the district court rejecting his claim, in whole or in part, ac- cording to the provisions of the eighth section of the act, shall give notice of his intention to enter the appeal within ten days from the entry of the final decision of the district court upon his claim ; and he shall file his appeal in the clerk's ofiice of the circuit court -within ten days thereafter, setting forth a statement in writing of his claim in the manner prescribed by said section ; and the assignee shall plead or answer thereto in like manner within ten days after the statement shall be filed. Every issue thereon shall be made up in the court, and the cause placed upon the docket thereof, and shall be heard and decided in the same manner as other actions at law. Imprisoned debtor. No. St. If at the time of preferring his petition the debtor shall be imprisoned, the court, upon his application, may order him to be produced upon habeas corpus by the jailor, or any ofiicer in whose custody he maybe, before the register, for' the purpose of testifying in any matter relat- ing to his bankruptcy; and if committed after the filing of his petition upon process in any civil action founded upon a claim provable in bankruptcy, the court may; upon like application, discharge him from such imprisonment. If ' Rev. Stat. §§ 5039, 5041. ' = Rev. Stat. § 5108. » Rev. Stat, § § 509.3, 5093. cxcviii THE ENACTMENTS. tlie petitioner, during the pendency of the proceedings in bankruptcy, be ar- rested or imprisoned upon process in any civil action, the district court, upon Ins application, may issue a writ of habeas corpus to bring him before the court, to ascertain whether such process has* been issued for the collection of any claim provable in bankruptcy, and, if so provable, he shall be discharged ; if not, he shall be remanded to the custody in which he may lawfully be. Before granting the order for discharge, the court shall cause notice to be served upon the creditor, or his attorney, so as to give him an opportunity of appearing and Deing heard before the granting of the order. Deposit and payment of moneys. No. 38. The district court in each dis- trict shall designate certain national banks, if there are any within the judicial district, or, if there are none, then some other safe depository, in which all moneys received by assignees or paid into court in the course of any proceed- ings in bankruptcy shall be deposited; and every assignee and the clerk of said court shall deposit all sums received by them, severally, on account of any bankrupt's estate, in one designated depository, and every clerk shall make a report to the court of the funds received by him, and of deposits made by him, on the first Monday of every month. On the first day of each month, the assignee shall file a report with the register, stating whether any collections, deposits, or payments have been made by him during the preceding month, and, if any, he shall state the gross amount of each. The register shall eater such reports upon a book to be kept by him for that purpose, in which a sepa- rate account shall be kept with each estate ; and he shall also enter therein the amount, the date, and the expressed purpose of each check countersigned by him. JSTo moneys so deposited shall be drawn from such depository unless upon a check, or warrant, signed by the clerk of the court, or by an assignee, and countersigned by the judge of the court, or one of the registers designated for that purpose, stating the date, the sum, and the account for which it is drawn ; and an entry of the substance of such check or warrant, with the date thereof, the sum drawn for, and the account for which it is drawn, shall be forthwith made in a book kept for that purpose by the assignee or the clerk; and all checks and drafts shall be entered in the order of time in which they are drawn, and shall be numbered in the case of each estate. A cop/ of this rule, shall be furnished to the depository so designated, and also the name of any register authorized to countersign said checks. Prepayment or security of fees. No. 39. The fees of the register, marshal, and clerk shall be paid or secured in all cases before they shall be compelled to perform the duties required of them by the parties requiring such service; and in the case of witnesses their fees shall be tendered or paid at the time of the service of the summons or subpoena, and shall include their traveling expenses to and from the place at which they may be summoned to attend. The court may order the whole, or such portion of the fees and costs in each case to be paid out of the fund in court in such case as shall seem just. The funds deposited with the register, marshal, and clerk shall, in all cases where they come out of the bankrupt's estate, be considered as a part of such estate, and the assignee shall be charged therewith, and shall not be allowed for any disbursements therefrom, except upon the production of proper vouch- RULES OF COURT. cxcix ers from such officers, respectively, given after tlie due allowances of their respective bills. Fees and costs. Clerks. No. 30. The fees of the clerk shall be the same as now allowed by law for similar services in the general fee-bill, section 838 Eevised Statutes, except as herein provided ; but no charge shall be made for filing any paper previously filed with the register. Also, For entering memoranda or minutes of register, each folio $0 10 For sending notice to creditors by mail, each 15 For inserting notice in newspaper 50 (The necessary cost of advertising to be paid as an expense of the estate.) For taxing the costs in each case $1 00 — and for each folio of taxed bill 10 Registers. The following and no other fees shall be allowed to the register : For filing and entry of the general order of reference, and for office-rent, stationery, and other incidental expenses of pro- ceedings, conducted in the usual office of the register, to be allowed once only in any cause $5 00 When the proceedings are not conducted in the usual office of the register, but in some other city or town, he shall be allow- ed for each day employed in going, attending, and returning. .5 00 Also, in such case, traveling and incidental expenses of him- self and of any clerk or other officer attending him, which expenses and fees shall be apportioned among the cases, as pro- vided in section 5 of the act, or section 5135 of the Eevised Statutes. For each day's service while actually employed under a special order of the court, a sum to be allowed by the court, not ex- ceeding. r 6 00 But only one per-diem allowance to be made for a single day, and no duplication of such allowances to be made for dif- ferent cases on the same day ; and no other allowance shall be made for clerk-hire except as above stated. For every affidavit to any petition, schedule, or other proceed- ing in bankruptcy, except proof of debt by a creditor or his agent, for each oath and certifying the same 25 For examining petition and schedules and certifying to their correctness 3 00 For every warrant in bankruptcy, or other process, issued and directed to the marshal, (not including warrants for payment of money or anything other than process) 3 00 For each day in which a general meeting of creditors is held, and attending same 3 00 For notification to assignee of his appointment 50 For assignment of bankrupt's effects 1 00 For every bond with sureties 1 00 For every application for a general meeting of creditors 1 00 cc THE ENACTMENTS. For evei7 summons or subpoena requiring the attendance of a bankrupt, a bankrupt's wife, or a witness for examination, for each person summoned $0 10 Tor taking depositions, including proofs of debts, and examina- tion of bankrupt or his wife, for each folio 20 For certifying proof of debt as satisfactory 25 For copies of depositions and other papers, each folio 10 For each notice which the register may be required to send to or serve on any creditor, (which shall include for postage and stationery) 15 For mileage in making personal service when necessary, the same as allowed by law to the marshal. For inserting notice in newspaper when required 50 (Costs of advertising to be allowed as part of the expenses of the estate.) For each order for a general dividend 3 00 For computation of dividends 3 00 In addition thereto, for each creditor 10 For every judicial order made by a register, necessary or proper to be made by him, and not herein otherwise specially pro- vided for, and not including matters merely ministerial 1 00 For every discharge where there is no opposition 2 00 For auditing the accounts of assignees 1 00 — and for each additional hour necessarily employed therein, after the first hour 1 00 For every certificate of question to the district court or judge, under sections four and six of the act, or sections 5009 and 5010 of the Eevised Statutes 1 00 For preparing such certificate, each folio 20 For each folio of memorandum sent to the clerk 10 For countersignmg each check of assignee ; 10 For filing every paper not previously filed by the clerk, and marking and identifying every exhibit M) (Fees paid by creditors for establishing their debts shall be entitled to raat with other fees and costs in the case under section 5101 Revised Statutes.) 3. The deposit of $50 required to be made as security for the fees of the register shall be delivered by the clerk to the register to whom the case is referred, and be by him accounted for at the termination of the case. Marshals. The fees of the marshal shall be the same as are allowed for similar services by the general fee-bill in section 829 of the Revised Statutes, as modified by section 5136, including additional fees allowed by the latter section for distinct services ; but no allowances shall be made under the last clause of section 5136, commencing with the words "For cause shown.' The marshal shall be allowed for each hour necessarily em- ployed in making inventory of bankrupt's property $1 00 — and for each folio of inventory 20 For each hour actually and necessarily employed in personal at- tention in taking care of bankrupt's property 1 00 RULES OF COURT. cci (No other allowance to be made for custody of property, except for actual disbursements, which shall in all cases be passed upon by the court.) Assignees. The fees and allowances of assignees shall be as prescribed and provided for in sections 5099 and 5100 of the Revised Statutes; provided that, in addition to disbursements made, no allowance shall be made other than the commissions provided for in section 5100, except as hereinafter speci- fied ; and said commissions shall be calculated but once upon the amount of moneys received and paid, and not upon both the receipt and payment there- of. Besides which, there shall be allowed to the assignee as follows : For serving or sending notices to creditors, or publishing the same, when required to be done by the assignee, the same amount allowed to the register for like services. For each hour necessarily employed in making inventory or supplemental inventory of bankrupt's property, or verifying marshal's inventory |1 OO For each folio of inventory or supplemental inventory made by assignee , 20 For all services in designating the exempt property of a bank- rupt, and filing report thereon 5 00 For attending a general meeting of creditors 3 00 For every deed for real estate sold „„ 3 00 For drawing and filing each monthly report 1 00 For drawing and filing each quarterly report, not exceeding four, unless specially allowed 5 00 For each general account submitted to a creditors' meeting, not exceeding two, unless specially allowed 10 00 For all services in paying a general dividend, or executing an order of final distribution, and making report thereon, in- cluding all disbursements 5 00 In addition, for each creditor to whom a dividend is paid. ... 35 Witnesses and jurors. The fees of witnesses and jurors shall be the same as prescribed in the general fee-bill, in sections 848 and 853 of the Revised Statutes. Attorneys. No allowance shall be made against the estate of the bankrupt for fees of attorneys, solicitors, or counsel, except when necessarily employed by the assignee, when the same may be allowed as a disbursement; and no allowance shall be made to the assignee for custody of the bankrupt's property, except necessary disbursements in relation thereto. The necessity and reasonableness of disbursements shall in all cases be passed upon by the court. Any money received by either of the officers mentioned, in excess of lawful fees or compensation, shall be ordered by the judge to be paid into court, and such order may be enforced, if necessary, by attachment as for contempt. No bankrupt's discharge shall be refused or delayed by reason of the non- payment of any fees except the fee for his certificate of discharge. Taxation of costs. Ten days before the day fixed for the consideration of the assignee's final account, or at any other time fixed by the court on its own motion, or on the application of any person interested, the clerk, marshal, and ccii THE ENACTMENTS. register shall file with the clerk a statement of fees, including prospective fees for final distribution, which shall exhibit by items, each service and the fee charged for it, and the amount received. Said clerk shall tax each fee-bill, allowing none but such as are provided for by these rules, which taxation shall be conclusive, reserving to any party interested exceptions to the bills as taxed, which shaU be decided by the court. The office of auditor is hereby discon- tinued. Costs in contested adjudications. No. 31. In cases of involuntary bank- ruptcy, wliere the debtor resists an adjudication, and the court, after hearing, shall adjudge the debtor a bankrupt, the petitioning creditor shall recover, to be paid out of the fund, the same costs that are allowed by law to a party recovering in a suit in equity; and in case the petition shall be dismissedj the debtor may recover like costs from the petitioner. When a debtor shall be adjudged a bankrupt, on the application of a credi- tor, and shall be required under the provisions of the act to furnish a schedule of his creditors, and an inventory and valuation of his estate, the court, if the estate is large, and the required schedule and inventoiy are likely to be volu- minous or complicated, or other good reason exist, may, on the application of such debtor, allow him the services of a clerk or accountant to aid him therein, at such rate of compensation, not to exceed five dollars per day, as the court may deem reasonable. Forms and schedules. No. 33. The several forms specified in the schedules annexed to the former general orders for the several purposes therein stated shall be observed and used, with such alterations as may be necessary to suit the circumstances of any particular case. The tabular forms hereto annexed shall be used respectively by the several officers named in section nineteen of the amendatory act of June 22, 1874, in making the returns required by said section. In all cases where, by the provisions of the act, a special order is required to be made in any proceeding, or in any case instituted under the act in a district court of the United States, such order shall be framed by the court to suit the circumstances of the particular case ; and the forms hereby prescribed shall be followed as nearly as may be, and so far as the same are applicable to the circumstances requiring such special order. In proceedings in equity, instituted for the pui-pose of carrying into effect the provisions of the act, or for enforcing the rights and remedies given by it, the rules of equity practice established by the Supreme Court of the United States shall be followed as nearly as may be. In proceedings at law, instituted for the same purpose, the rules of the circuit court regulating the practice and proce- dure in cases at law shall be followed as nearly as may be. But the court, as \orT\ the judge thereof, may, by special rule in any case, vary the time allowed for return of process, for appearance and pleading, and for taking testimony and publication, and may otherwise modify the rules for the preparation of any particular case so as to facilitate a speedy hearing. Omissions and amendments. No. 83. Whenever a debtor shall omit to state in the schedules annexed to his petition any of the facts required to be stated concerning his debts or his property, he shall state, either in its appro- priate place in the schedules or in a separate affidavit, to be filed with the petition, the reason for the omission, with such particularity as will enable the RULES OF COURT. cciii court to determine whether to admit the schedules as sufficient, or to require the debtor to make further efforts to complete the same according to the re- quirements of the law ; and in malsing any application for amendment to the schedules, the debtor shall state under oath the substance of the matters pro- posed to be included in the amendment, and the reasons why the same had not been incorporated in his schedules as originally filed, or as preyiously amended. In like manner, he may correct any statement made during the course of his examination. Additional proof of debts. No. 34. Depositions to prove claims against a bankrupt's estate shall be correctly entitled in the court and in the cause. When made to prove a^ debt due to a copartnership, it must appear on oath that the deponent is a member of the creditor firm ; vf hen made by an agent, the reason the deposition is not made by the claimant in person must be stated ; and, when made to prove a debt due to a corporation, and the corporation has no such officer as cashier or treasurer, the deposition may be made by the officer whose duties most nearly correspond to those of cashier or treasurer. Depositions to prove debts existing in open account shall state when the debt became or will become due; and, if it consists of items maturing at difiurent dates, the average due date shall be stated ; in default of which it shall not be necessary to compute interest upon it. All such depositions shall contain an averment that no note has been received for such account, nor any judgment rendered tliereon. Proofs of debt received by any assignee shall be delivered to the register to whom the cause is referred. The register may decline to file any deposition until the fee for filing the same is paid. When a proof of debt is sent by mail to the register, and it shall be accompanied by the fee for filing it, and the fee for sending a notice to a creditor, the register shall acknowledge the receipt of it, and state the amount at which he has entered it, and, if it shall be insufficient or unsatisfactory to the register, he shall state the reason. Any creditor may file with the register a request that all notices to which he may be entitled shall be addressed to him at any place, to be designated by the post-office box or street number, as he may appoint, and thereafter, and until some other designation shall be made by such creditor, all notices shall be so addressed ; and, in other cases, notices shall be addressed as specified in tlie proof of debt. Claims which have been assigned before proof shall be supported by a depo- sition of the owner at the time of the commencement of proceedings, setting forth the true consideration of the debt, and that it is entirely unsecured, or, if secured, such deposition shall set forth the security, as is required in prov- ing secured claims. Upon filing with the register satisfactory proof of the assignment of a claim proved and entered on the register's docket, the register shall immediately give notice by mail, to the original claimant, of the filing of such proof of assign- ment. And, if no objection be entered within ten days, he shall make an order subrogating the assignee to the original claimant. If objection be made within the time specified, or within such further time as may be granted for that purpose, the register shall certify the objection into court for determination. The claims of persons contingently liable for the cciv THE ENACTMENTS. bankrupt may be proved in the uame of the creditor, when known by the party contingently liable. When the name of the creditor is unknown, such claims may be proved in the name of the party contingently liable; but no dividend shall be paid upon such claim, except upon satisfactory proof that it will diminish, ;i)'o tanto^ the original debt. The execution of any letter of attorney to represent a creditor, or of an assignment of claim after proof, or of the consent of a creditor to a bankrupt's discharge, may be proved or acknowledged before a register in bankruptcy, or a United States circuit-court commissioner. When executed on behalf of a copartnership, or of a corporation, the person executing the in- strument shall make oath that he is a member of the firm, or duiy-authorizsd officer of the corporation, on whose behalf he acts. When the party executing is not personally known to the officer taking the proof or acknowledgment, his identity shall be establislied by satisfactory proof. When the assignee or any creditor shall desire the re-examination of any claim filed against the bankrupt's estate, he may apply by petition to the register to whom the cause is referred, for an order for such re-examination ; and thereupon the register shall make an order fixing a time for hearing the petition, of which due notice shall be given by mail, addressed to the cre- ditor. At the time appointed, the register shall take the examination of the cre- ditor, and of any witnesses that may bo called by either party ; and if it shall appear from such examination that the claim ought to be expunged or dimin- ished, the register, if no objection be niade, may oider accordingly. If objec- tion be made, the register shall require the parties then, or within a time to . be fixed for that purpose, to form an issue to be certified into court for deter- mination. If the petitioner is in default in making up said issue, the petition shall be dismissed ; if the creditor whose claim is re-examined is in default in making said issue, the claim may be diminished or expunged by the register. All orders thus made by the register may be reviewed by the court on^ spe- cial petition, and upon showing satisfactory cause for such review. Trial before marshal. No. 85. If the debtor, under the provisions of sec- tion fourteen of the amendatory act relating to proceedings in bankruptcy, approved June 33, 1874, shall elect to have a trial of the facts before the mar- shal, he shall make such election in writing, and file the same with the clerk of the court; and thereupon the court, on application of the debtor, may award the venire facias in said section prescribed, upon and by virtue of which the marshal shall summon twenty-four good and lawful men, inhabitants of the vicinity of the place of trial, and indifferent between the parties, from whom to select a jury to try the said facts ; and the names of the persons so sum- moned shall be drawn by lot to make the said jury, and each party shall be entitled to challenge four persons peremptorily; and if a sufficient number of jurors unchallenged and free from exception shall not appear to make the full panel of twelve men (or such less number as the parties may agree upon) to try the said cause, the marshal shall Complete the number by forthwith summoning other proper persons for the purpose. And any person summoned by the mar- RULES OF COURT. CCV shall to sit on said jury, and failing to appear without sufficient excuse, shall be returned by the marshal and subject to be fined by the court. The petitioning creditor shall be deemed the actor, give due notice of trial, and have the opening and close before the jury. Subpoenas may be issued to witnesses, and objections to evidence shall be decided by the marshal presid- ing at the trial, subject to review by the court. The trial shall be had upon the petition to have the debtor declared a bankrupt, and no other pleadings shall be necessary. The debtor may, on his part, prove any fact or state of facts which will entitle him to have the case dismissed. The jury, if desired, shall find a special verdict upon any point or question of fact stated for that purpose in writing by either party before the case shall have been submitted to them. The verdict shall be signed by the foreman of the jury and coun- tersigned by the marshal, who shall immediately return the same to the court with the venire, and any points or questions raised and decided by him at the trial. The court for good and legal cause shown, may set aside the verdict and award a new venire as often as occasion shall require. Composition under section 17 of amendatory act. Ko. 36. If at anytime after the filing of a petition for an adjudication in bankruptcy, a petition duly veri- fied be filed by the debtor or bankrupt, or by any creditor of such debtor or bankrupt, setting forth that a composition has been proposed by such debtor or bankrupt, and that he verily believes that such proposed composition would be accepted by two-thirds in number and one-half in value of the ci;editors of such debtor or bankrupt, in satisfaction of the debts due from such debtor or bankrupt, the court shall forthwith order a meeting of the creditors to be called to consider of the said proposition as provided in the 17th section of the said amendatory act, whereupon such proceedings shall be had as are therein directed. The register acting in the case, or, if no register has been assigned, a register to be designated by the court, shall at the time and place specified in the notice for holding sucb meeting, hold and preside at the same, and report to the court the proceedings thereof, with his opinion thereon; upon the filing of which, the clerk shall give the notices to creditors required by said .section, and the court shall, at the time therein fixed, proceed to hear and determine the matter as in said section is prescribed. In like manner, additional meetings in relation to such proposed composi- tion, or any modification thereof, may, upon like application, be called and held, and the proceedings returned in like manner. Eeference to sections of act, &c. No. 37. All orders referring specifically to any section or sections of the original bankrupt act shall be deemed and construed to refer to the corresponding sections respectively in the Revised Statutes of the United States; for example, Order IX., in referring to sections 12 and 13 of the act, shall be construed to refer to sections 5033 and 5034 respectively of the Revised Statutes; and so of the rest. And all forms heretofore prescribed shall be adapted to any modification of the law, or of these orders. [Here follow, in the official rules, forms for annual reports of marshal, regis- ter, assignee, and clerk.] BOOK I. THE JUDICIAL ORGAOTZATIOJ^. CHAPTER I. Ili^TEODUOTOET. The judicial system of the United States is peculiar. The jurisdiction allotted to it is special and exceptional. But its characteristic features, however complex, were impressed upon it by two simple necessities, — the necessity of a Common Tribunal for the determination of controversies which might seriously compromise internal harmony, and the necessity for a National Tribunal for the determination of those which might affect external, political and commercial relations. To view these reasons more clearly in their great outlines, let us for a moment withdraw from our position within the system, and look upon it as a stranger from without. Sect, 1. Complexity of the judicial system. — To such a stranger, contemplating the American government from abroad, it presents a singularly complicated system, which he finds not easy to comprehend. A President, and a Congress, or legislative body, in the centre of the system, ap- pear at first sight to be clothed with powers of sovereignty co-extensive with the nation ; and yet that nation is composed of thirty or forty separate States, each enjoying an independ- ent existence, administered by its own separate governor, and its own legislative body. And when the foreign observer inquires for the pre- ^^gg, else relations of subordination in which the local Gov- Vol. I.— 1 (1) 3 THE JUDICIAL ORGANIZATION. ernor stands towards the national President, and the local Legislature toward the national Congress, he is surprised to hear that, so far from one being under the authority of the other, there is no ordinary official intercourse between these numerous States and the central executive authority ; that the legislation of the local representative bodies is not sub- ject to the disapproval or revision of the Congress ; and that although the jurisdiction of one is territorially co-extensive with ih.^, aggregate jurisdictions of the others, each legisla- ture proceeds, in the framing of laws, and each executive in the administration of them, in a manner entirely free from any direct supervision by the other. The key to the harmonious working of two such systems upon the same soil is to be sought in the doctrine of the dis- tribution of powers which characterizes the American Repub- lic, and constitutes one chief element in its peculiar success, giving to it its capacity of indefinite extension by binding to- gether dissimilar communities in a league of perpetual peace. It is not necessary to our present purpose to inquire what subjects the people regulate through the agency of the na- tional or Federal legislature and executive, and what through State legislatures and executives. But the fact of this peculiar and novel distribution of powers must be borne in mind if we would appreciate the judicial system. Sect. 2. Necessity of a judicial deparlment. — All authorities agree that the security of liberty and justice, even under a popular government, is dependent on the existence of a separate judicial department. As the quality of justice in the individual rests directly upon the function or faculty called conscience, or the moral sense, and is subverted when passion or self-interest rules the moral sense, so the quality of justice in government depends upon the existence of a judicial power which is not subservient to political ambi- tion, legislative authority, or the interest of executive pat- ronage. The judicial power of the United States, as well as that of the several States of the Union, is, therefore, vested in a sepa- rate department of the government, charged with the duty of expounding and applying the laws, not in obedience to the legislative will or the executive behest, but freely, and [169] according to the dictates of that general moral sense INTRODUCTORY. 3 the authoritative exposition of which forms so large a part of Christian jurisprudence. The adaptation of a judicial department thus formed, to a political community characterized by so peculiar a division of powers, produced the peculiar and complex regulations re- specting the Jurisdiction of the Federal Courts. For, so long as the differences between sovereign States are to be settled by an appeal to force, the judicial system of each State may be framed, and its administration conducted, without reference to any other than its own internal constitution. But in an attempt like that embodied in the American constitutions, to substitute organic legal relations and the peaceful determina- tions of judicial tribunals, in the place of diplomatic negotia- tions and the arbitrament of war, it at once becomes of the first importance that the judicial systems by which' the parties in interest are, themselves, so to speak, to determine their own differences, should be framed in such a manner as to avoid, to the utmost degree possible, those sources of injust- ice which would exist were questions involving conflicting in- terests of several States, or the intercourse of the aggregate body with foreign nations, left to be determined by tribunals constituted by either of the States. Where the law depends upon the will of the people as ex- pressed through their representatives, the interpretation of the law must also ultimately, in its remote source, be depend- ent upon the sense of the people, as expressed through their tribunals. I Hence the establishment of a National Executive and Con- gress, side by side with the Governors and Legislatures of the several States, necessarily required the establishment of a separate Judicial Department of the national government, de- pending for its existence upon the same organic law. Although the general and local governments may thus •work side by side, each exercising in their own sphere their own appropriate powers with rare collisions, it will be readily seen that the point at which such collisions are to be expected to occur most frequently is that of the judicial interpretation and application of laws, and their consequent administrative enforcement ; and especially in that which lies at the founda- tion of those laws, the organic law or constitution of the nation. These collisions will be most prone to arise in ref- [170] erence to those subjects which lie upon the border ground 4 THE JUDICIAL ORGANIZATION. between the two classes of powers, the local or municipal, and the general or national. These and similar considerations resulted in the formation of the present judicial system of the United States, — a system of very complex and artificial details, but which becomes clearly understood and readily remembered when the great political facts which necessitated its contrivance are borne in mind. Sect. 3. Interpretation of the Constitntion. In an attempt to establish government in a popular form upon a written constitution, the construction and effect which should in. future times be given to that instrument was obviously a matter of the first importance. For a constitution dif- fers essentially from the laws or ordinary acts of legisla- tion, in respect to the scope of interpretation, and depends much more upon certain qualities of prevision and flexibility of construction. A statute is made by agents, who act under instructions. A constitution is the act of principals, giving instructions. Moreover, a law or statute is enacted, usually, at the time of the exigency demanding it. It arises out of an actual diificulty, requiring relief, — an actual mischief demand- ing correction, — an unregulated matter, the inconvenience of which itself points out the character of the rule which the legislature must establish. A written constitution, although partaking much of this character, must possess more largely, characteristics which depend upon a certain anticipatory and philosophic wisdom, and the forecast of political issues not at the time and perhaps never to be in existence. The statute lays down a rule or regulation ; the constitution establishes a principle which is to govern the framing of rules and regula- tions. A constitution is ordained for permanence, and th^ power of amendment is restricted and hedged with hindrances. A statute is amendable at any session of the legislative body. It is a marked characteristic, therefore, of the American written constitutions, that they deal rather with principles than with regulations ; and the application of these principles must constantly be, in after years, the subject of judicial de- termination. The Constitution aims to declare what shall be and what shall not be done, but, in great part, it leaves [171] to after generations, through their legislative or judicial tribunals, to determine how it shall be, or by whom it shall be, done. A principle which shall be permanent, and the JJSl TROD UCTOR Y. 5 expression of which, can not be modified without great diffi- culty, requires to be stated in very general, if not ambiguous, language, so/that it may be iiexible in adaptation to the vary- ing phases in which the subject may in future times present itself. It results from the peculiar nature of a wisely-framed writ- ten constitution that it is destined to be the subject of much judicial interpretation. It presents the outlines of the organ- ization of the government, and leaves for subsequent legisla- tion and for judicial interpretation the filling-in of the picture conformably to those outlines, and to the new usages and exi- gencies of society. The practical wisdom of the framers of the Constitution of the United States is characteristically ap- parent in. the manner in which they prepared a declaration of general principles of government, which, although immediately intended for a seaboard community of three millions of peo- ple, has been found in the main to be capable of expansive application to a nation of forty millions, covering the breadth of the continent. Their foresight is no less apparent in what they avofded saying than in what they said. This being the nature of a written cdnstitution, it is of the first importance, in such a combinative government as ours, that the interpretation to be put upon the provisions of the general constitution should always rest, in the last resort, with the tribunals of the general government. This secures to the general government the means and condition of its own regu- lar and normal growth and expansion. Sect. 4. Laws and treaties. — It is obvious, from the same general considerations, that the laws made by the general leg- islature should be, in the last resort, interpreted by the tribu- nals of the general government ; and that the treaties with foreign nations, which can be made alone by the general gov- ernment, should also depend for their interpretation upon the same judiciary. It was necessary upon all these subjects to avoid the apprehension, as well as the dangers, of State preju- dices. The Constitution therefore declares that " all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be ^made under their authority,''^ are among the subjects 172 of the judicial power of the United States. Sect. 5. Officers of foreign government— The general gov- 6 THE JUDICIAL ORGANISATION. eminent is charged with, /the administration of international relations, and is empowered to regulate commerce with foreign countries. Since thus not only all official dealings with the political and commercial representatives of foreign nations, but also the general external commercial policy of the coun- try, is placed under the direction of the United States, to the exclusion of the interference of the separate States, it is both appropriate and essential that the persons and property of such representatives of foreign nations as are accredited to us, should be held amenable only to the tribunals of the United States, the government with whom they have to, deal, or with whose commercial relations their employment is concerned. Not only the comity due to the nations which they represent, but also the unity of the commercial relations of our own people with other nations, the interests of trade, and the maintenance of peace, require that the judicial power should extend " to all cases affecting ambassadors, other public min- isters, and consuls." Sect. 6. Admiralty and maritime jurisdiction. — The third class of cases in which jurisdiction ought not to be apportioned among the tribunals of the States, is that of maritime causes. Territorial boundaries and geographical differences, which divide the population of the shore into separate States and communities, and give rise to local differences of legislation, do not extend themselves over the waters of the sea. Men of every clime meet there in common, in 'peculiar relations of ad- venture, service, and peril, which irresistibly demand a sys- tem of jurisprudence wholly dissevered from those local pe- culiarities that mark every system of municipal law. Every civilized power possessing a. navy, has therefore, by the means of maritime tribunals, exercised judicial functions with reference to controversies respecting prize and capture, and in reference to crimes committed upon the high seas ; and this jurisdiction has generally and naturally drawn with it the power of determining controversies respecting private torts and injuries committed upon the same waters, such [173] as claims for damages resulting from collisions of ships, assaults upon seamen, wrecking and salvage services, and the breach of contracts of a purely maritime nature. These maritime courts were termed Courts of Admiralty, from their naval origin ; but in the progress of civilization, their INTRODUCTORY. 7 aspect and character as civil tribunals has become by far the most important element in their constitution. In England the admiralty coiirts have been gradually shorn of much of their ancient power, by the growing ascendency of the courts of common law, which have extended their own jurisdiction, to the diminution of the maritime jurisdiction. With the increasing growth of the wealth of the land, and the development of the great productive interests of manufactures and mining, the courts of the land, appointed directly by the crown, began to assert a paramount authority over the courts of the sea, and to endeavor to confine the exercise of their powers within narrower limits. ' In the American Colonies, however, where the inhabited land was but a strip of sea-coast, and the interests of the float- ing commerce continued to be greater than the industries of the soil, a similar modification of the jurisdiction of the mari- time courts was not effected. They maintained their juris- diction over many classes of civil controversies respecting shipping and maritime contracts which the English admiralty courts had lost. In framing a system pf government in which the municipal jurisdictions were to be so much divided, the sea-coast of the nation being broken into a dozen different States, it was de- sired to place within one uniform system of adjudication con- troversies relative to maritime property, contracts, and wrongs, in order that they might be administered in harmony and sym- pathy with the usages of universal commerce, and the gen- eral foreign commercial relations of the Union. It was ac- cordingly declared that the judicial power should extend "fo all cases of admiralty and maritime jurisdiction." Sect. 7. Controversies of the United States. — There renaain to be considered those cases which are brought within the jurisdiction of the general government by reason of the char- acter of the parties concerned in them. A government is not in general amenable to judicial proceedings in its own tribu- nals, except by its own consent embodied in form of law ; and it is obvious, therefore, that the government of the United States should not be subject to judicial proceed- [174] ings in the courts of the several States, although it is competent for it by law to authorize controversies in which it is concerned to be determined by those courts or by its own. Hence arises the fourth provision of the cJause of the Consti- 8 THE JUDICIAL ORGANIZATION. tution relative to. judicial power, wliich declares that it shall extend " to controversies to wMch the United States sJiall he a party." Sect. 8. Controversies of States. — From the foregoing con- siderations it is equally obvious that a controversy in which any State is concerned, unless it be a controversj- with its own citizens, is a proper subject for the jurisdiction of the courts of the United States. It was not to be contemplated that one State or its citizens, or a foreign state, or foreign citizens, could implead or be impleaded by another State, or the citi- zens of another State, in the tribunals of one of the States con- cerned, without at least sufficient opportunity for removing such controversies into the tribunals of the general govern- ment, whose powers are removed as far as possible from any sources of local influence. The same principle, too, upon which it is just that a citizen of one State, proceeded against by a citizen of another State in the tribunals of the latter, should be entitled to remove the cause from the local tribunal in which he is impleaded to a general tribunal, ma.kes it also just that a suit brought in a local court against an alien by a citizen of the State, should be likewise removable. The same principle which makes it just that controversies between two or more States, or between a State and the citizens of another State, should be brought in the tribunals of the United States, makes it just that controversies between citizens of diiferent States should follow the same rule ; or at least, that either party to such a controversy, if litigated in the courts of the State, should be entitled to have it removed to the tribunals of the general government, the common representative of both. Therefore it was declared that the judicial power should ex- tend ' ' to controversies between two or more States., between a State and citizens of another State, between citizens of differ- ent States. '" Sect. 9. Land titles. — One special provision relative to con- troversies concerning land grants is to be noticed. It is a pro- vision affecting a verj^ small class of cases, which were [175] however, of great importance at the time when it was framed. The existence of a provision of this special char- acter among the general principles embodied in this clause of the Constitution, arose from the peculiar condition of the coun- try, and what we might almost call the prevailing character of litigation at tlie time of the .adoption of the Constitution. IN TROD UCTOR Y. 9 TS'othing in jurisprudence more significantly marks the prog- ress which America has made during the past century, than the contrast between the leading matters of litigation at the beginning of it and at the present time. A hijndred years ago the country may be said to have consisted of a strip or belt of inhabited land upon the Atlantic coast, with lines ■ of boundary running back into an ill-defined wilderness beyond the mountains. As in almost all new countries, the soil con- stituted the chief source of wealth to all the inhabitants beyond a few sea ports, hence it was, next after maritime property, the chief subject of contest among men. The reports of any of the States dating at the time of the formation of the Con- stitution, and for some years subsequently, are largely occu- pied with land cases, writs of right, and ejectments. And from the vastness of the tracts in which the soil had been mapped out between the States, private controversies which drew in question the grants of the State, might practically involve the States themselves in contests upon which the title of thous- ands of inhabitants to their homes and farms would depend. It was suitable, therefore, that where even citizens of the same State claimed lands adversely to each other under grants by different States, the controversy, since in reality it involved the title of the different States, should be determinable by the tribunals of neither one, but by those of the general govern- ment ; and the provision of the Constitution, then very im- portant in securing peace and harmony between the States, but now of rare application, still remains, that the judicial power shall extend "fo contro'oersies between citizens of the same State claiming lands under grants of different States.'^ Sect. 10. Controversies with foreigners. — For reasons similar to those which have already been considered, the propriety is at once obvious of providing in some way for controversies with foreign States and foreign persons. It is obviously proper that controversies which might directly or indirectly involve the foreign relations of the' com- [176] munity, should be determinable by the tribunals of that department of the government to which those foreign relations belonged, or at least that the local courts of the several States should not be exclusively vested with the judicial power in such cases : hence the provision which closes the enumerations of subjects of judicial power, declar- ingthat that power shall extend to controversies " between a 10 THE JUDICIAL OSGANTZATION. State or the citizens tJiereof, or foreign States, citizens, or subjects.'''' Sect. 11. The eleventli amendment. — One of the framers of the Constitution remarked that it was not to be expected that they were to establish a new government as a skillful player would conduct a game of chess, — ^without a single fault. The experience of the time which has elapsed since the organiza- tion of the courts of the United States has sufficed to suggest some important modifications of the original scheme. The only one necessary to notice here is the modification of the constitutional definition of judicial power which we have been considering. It is embodied in the eleventh article of the amendments. Under the Constitution, as we have thus far stated its provisions, the courts held that the judicial power, extending as it did to controversies between two or more States, and to controversies between a State and the citizens of another State, or foreign citizens or subjects, authorized them to sustain actions by citizens or foreigners against a State. There being, however, an unwillingness on the part of several of the States to submit to be sued by individuals in the Federal courts, an amendment to the Constitution was adopted, declaring that " the judicial power of the United States shall not ie construed to extend to any suit in law or equity commenced or prosecuted against one of the United States hy citizens of another State, or hy citizens or subjects of any foreign State.'''' Sect. 12. Recapitulation.— We have thus far endeavored to assist the reader to memorize clearly that clause of the Con- stitution which ordains the judicial power, and marks out the limits of the jurisdiction of the United States courts ; to aid him to iix and hold permanently in mind the ordinance of sec- tion II. of article III. of the Constitution of the United States, that, — ' ' The judicial power shall extend to all cases in law and equity arising under this cdnstitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, other public ministers and consuls ; to all cases of admiralty and mari- time jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States, between a State and citizens of another State, 'between citizens of different States, between citizens of the same State claiming IN TROD UCTOR Y. \\ lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or sub- jects'' (suits by individuals against States excepted); The judicial power of the United States is thus seen to ex- tend to three classes of litigation. The first may be characterized, in a broad sense, as politi- cal, — ^that is to say, cases in which, whatever may be the sub- ject-matter of the controversy, whoever may be the par- ties to it, the controversy turns on the constitution of [177] the general government, or its laws or treaties. The second may be characterized as personal, — that is to say, cases in which, whatever may be the subject-matter, and whatever may be the law applicable thereto, the controversy involves the exercise of jurisdiction over certain classes of per- sons or bodies politic, who should be allowed to invoke the jurisdiction of the general government. This class includes public ministers, consuls, the United States itself, and the sev- eral States of the Union, and alien defendants. The third class may be characterized as depending upon the subject-matter, and this includes all controversies of ad- miralty or maritime cognizance. In some of these cases, the jurisdiction of the Federal courts is exclusive ; in others, it is concurrent with that of the State courts ; in others still, the defendant may, at his option, by removing the cause from the State to the national tribunal, avoid the jurisdiction of the former, and make the jurisdiction of the latter exclusive in the case. In some classes of cases, also, for the prevention of unprofitable litigation. Congress has restricted the right to invoke the jurisdiction of its tribu- nals in controversies where comparatively trifling amounts are at stake. These rules will be fully explained in their appropriate places. Sect. 13. Conflicts' of jurisdiction. — To appreciate the rela- tive position of the tribunals of the United States which are clothed with this judicial power, toward the tribunals of the several States of the Union, attention should be given to th& peculiar nature of the distribution or division of powers be- tween the local and the general government to which we have before adverted. In the question which has been so warmly discussed, whether "sovereignty" resides in the State gov- ernments or in the general government, it is often assumed 12 THE JUDICIAL ORGANIZATION. on both sides that sovereignty is one and Indivisible, that it must be found resident wholly in one or wholly in the other organization. It may be conceded that, as it exists in most systems of government with which political philosophy deals, sovereignty is, practically, one and undivided. Whether sov- ereignty be in the States or in the Union, or, on the other hand, in the People themselves, by reason of the new features [178] involved in the American constitutions, it is proper to observe, that if we look at the government of our coun- try as it actually exists, not as we see it described in the books, if we look at the powers which are in practice exercised by the respective States and by the general government, and the political authority wielded under these two forms over the persons and the property of the people, there is reason to say that the powers exercised by each State are such powers as, if they were exercised by a monarch, would be enumerated as a part of his sovereignty. And, on the other hand, the powers exercised by the gtoeral government are such, as, if they were exercised by a monarch, would also be enumerated and de- scribed as a part of the same sovereignty. The power of emi- nent domain, the power of direct taxation, the power to define and punish crime, — these and other powers, altliough not con- stituting all that is involved in the idea of sovereignty, nor, perhaps, essential to the idea of sovereignty, would yet be in- cluded in that term when it is applied to a sovereign who pos- sesses those powers. And so, upon the other hand, the pow- ers which we see actually and lawfully exercised by the gen- eral government, — the power to make peace and war, Jhe power to maintain an army and navy, the power to coin money and regulate commerce with foreign nations, — these and many others would also be included in a similar designation. It is important, therefore, to a right understanding of the actual practical relations of the judicial tribunals, to bear in mind that each may be said to be independent and supreme in its own appropriate sphere. And yet since, in the complexity of human affairs, absolute classification of powers is impossible, and there must be a border-line across which conflicting inter- ests and principles will interlace with each other, it is neces- sary that the adjudications of one system of tribunals or the other be made paramount and final in all cases in which the two, when lawfully exercised, would come in conflict. This supremacy the Constitution vests in the tribunals of the Uni- IN TROD UCTOR Y. ] a ted States ; so that we might, perhaps, accurately describe the relations of the two systems of tribunals by saying that each is supreme within its own sphere, and that it is only in those cases where the powers of the general government and those of the State governments blend and become, so to speak, indistinguishable, that the judicial power of the United States. overbears and supersedes that of the State tribunals. These, then, are the essential features of the judicial [179]. system of the United States ; — the final power, para- mount to all State tribunals, to determine questions affecting the nature of the general government and the legal effect of its a.cts, the safety and rights of its diplomatic guests, the purely commercial interests of maritime commerce, and those controversies among different States, and citizens of different States, and foreign persons, in which, for reasons of public justice, either party ought to be allowed to invoke the judg- ment of a tribunal other than that with which his adversary is by local ties identified. It is worthy of notice that the framers of the Constitution,, who made careful provision for conflict of jurisdiction in re- spect to the adjudications of the courts, made no direct pro- vision for those conflicts between the administrative powers of the courts which must arise in enforcing their respective juris- dictions against the same persons and property. The conflict- ing rights and duties of marshals of the United States courts, and the sheriffs and constables of State courts, in respect to property in custody of the law, and claimed under rival pro- cesses issued from those different tribunals, are among the most embarrassing to which the administration of the judicial power of the United States now gives rise. Sect. 13. J^:^•isprudeIlce of the United States Courts. — It is im- portant to notice the effects of the characteristic organization and powers of the United States courts, appearing in the body of the jurisprudence which their decisions form. Their, ad- judications of legal principles, when viewed as contributions to the jurisprudence of the country, may be described in three distinct classes. As compared 'srith the decisions of State tribunals, they are either of subservient, equal, or paramount authority. 1. Where the tribunals of the United States have jurisdic- tion by reason of the character or political status of the par- ties concerned, without respect to the subject-matter, they 14 THE JUDICIAL ORGANIZATION. are often called upon to administer the laws of particular States, and to construe State constitutions. In these cases it is the uniform rule of the courts of the United States to seek for, recognize, and follow the rules of property clearly estab- lished by the judicial decisions of the highest courts of [180] the State whose laws they are called upon to construe and apply. Upon this class of questions, therefore, their conclusions are avowedly subservient to the decisions of tlie courts of the State in question, and are of less weight as pre- •cedents than those decisions. 2. Upon questions of general commercial law, as well as upon such other subjects as depend rather upon geheral prin- ciples than any local regulations, — such as the doctrines of the criminal law and the rules of evidence, — the decisions of the Supreme Court may be said to have an equal weight in the courts of any State with the decisions of the courts of any other State. Upon these subjects more or less diversity of opinion often arises between the courts of the different States. And although the courts of a State often follow the rule clearly established by their own precedents, in preference to a different rule established by the Supreme Court of the United States, yet, in the absence of any controlling precedent in their own courts, the judges of the State courts would regard the decisions of the United States 'courts as a guide of equal authority with the decisions of the courts of any other State than their own. Especially is this the case upon subjects of commercial law, in which it is felt to be of great importance that decisions should be uniform ; and on these subjects the judgments of the Supreme Court of the United States are re- ceived with much respect, and followed, to some extent, even' in the courts of last resort of the several States. 3. Upon all those subjects which relate to the political or- ganization of the general government, the interpretation of its laws and treaties, and the commercial and other relations which are within its powers, the decisions of the Supreme Court of the United States are, in general, final and conclusive upon all the other courts of the country. The deference paid to the decisions of the Supreme Court upon these subjects is, to some degree, shared by the decisions of the Circuit Courts, which are held by justices of the Supreme Court, associated ■with local judges, in various parts of the Union. Although there are found in the reports of these courts a INTRODUCTORY. , 15 considerable number of cases in the latter class wMcli, by- reason of their peculiar subject-matter, are of but little gene- ral interest to the profession, there is, beside these, a large body of adjudications upon questions of constitutional, com- ,mercial, and maritime law, which possess, either by reason of the paramount authority of the judicial power over the subject involved, or by reason of the high degree of [181] -•learning, ability, and consistency which has generally been maintained by these tribunals, a general interest and im- portance to the profession at large not exceeded by any part •of the American jurisprudence. CHAPTER II. THE JUDICIAL POWEE. No powers have been conferred, either npon the judicial or any other department of the federal government, except those- which are specifically granted by the Constitution of the United States, either by express words or by necessary impli- cation. Although the Constitution is the supreme law of the land, and is paramount to all other laws, its scope is limited ; the exercise of the judicial power of the government is not to be extended to other subjects than those which are found to- fall within the purview of its provision. It is a general prin- ciple that while courts which originate in the common law possess a jurisdiction which must be regulated by the common law until some statute shall change their established princi- ples, courts which are created by written law, and whose ju- risdiction is defined by written law, can not transcend thaj ju- risdiction.' Sect. 14. Importance of questions of jurisdiction. — In a court of the United States, therefore, questions of jurisdiction are questions of special importance. The bench is clothed with unrestricted vigor in the exercise of its judicial powers ; the forum in which it sits is supreme ; but the door of access is narrow, and every suitor is challenged who approaches to in- voke the powers of the court. Constitutional restric- [183] tions guard the entrance ; and although the judgment ^ Mep. BoWman, i Oranch, 93; Shel- when exercising jurisdiction in a partic- don V. Sill, 8 Sow., 441. This princi- nlar case by virtue of a special statute, pie has been so strictly applied as to can not deviate from the letter of the lead to the rule laid down in William- act, nor make a decree founded in part son V. Berry (8 How., 495), that a court upon the statute, and in part on its. of chancery, of general equity powers, general jurisdiction. (16) THE JUDICIAL POWER. 17 of the court, when expressed, is paramount to all others, and final, and though its powers are far-reaching and irresis- tible, its interposition can not be invoked except upon those subjects and by thpse classes of persons for whom written authority exists, in the Constitution, and the acts of Congress made in pursuance thereof. The courts of the United States, accordingly, have, with great uniformity, disclaimed all jurisdiction not thus given. They hold themselves bound to take notice of an objection to their jurisdiction whenever it may occur, and however it may be presented, and without regarding the consent of parties ; and when satisfied that they have not jurisdiction, they will decline to proceed further.' It is held that the jurisdiction of any court, over either the person or the subject-matter, may be inquired into whenever any right or benefit is claimed under its proceedings ; and want of jurisdiction will render its judgment unavailable for any purpose." In determining questions. of jurisdiction under the acts of Congress, the court will, of course, hold the words of such an act to be restrained by the provisions of the Constitution, whenever the one would otherwise transcend the other.' We have seen that the judicial system is necessarily an ar- tificial and complex scheme ; and it becomes important to the practitioner to observe with care the barriers which the Con- stitution has set to the extent of the jurisdiction which may be conferred upon these courts. Sect. 14, Double foundation of jurisdiction. — To show more ' Rhode Island ®. Massachusetts, 13 that, with reference to courts of supe- Pet., 657, 718; Ketland v. The Oas- rior or general authority, jurisdiction bIus, 2 Hall., 365. The supreme court is presumed until the contrary appears; will not, even though the plaintifis but with reference to courts of inferior and defendants in error both waive all or limited authority, the jurisdiction objection to jurisdiction, express an must be affirmatively shown. lb. opinion upon the correctness of a de- ° United States «. New Bedford cision of a court of one of the States, Bridge, 1 TPaorfft. & M., 401. It is a brought up for review,, when it has no peculiar application of this principle, power to affirm or reverse the same, rather than an exception to it, that an Consent will not give jurisdiction. The appellate court, before whom a case is acts of Congress having carefully re- brought, of which the court below had stricted the jurisdiction conferred upon no jurisdiction, may take jurisdiction, the court, over the judgments and de- and will do so, so far as to annul and creea of the State tribunals, the court reverse the proceedings had below, will notesercisejurisdictionin a differ- They will not, however, remand the ent spirit. Mills «. Brown. 16 Pet., 335. case again to the inferior court, nor re- * Gray v. Larrimore, 3 Abb. U. S., 543. tain it themselves for further proceed- In applying this rule, the only differ- ings. United States v. Nourse, 6 Pet., ence recognized between courts of su- 470 ; Dred Scott v. Sandford, 19 Sow., perior and of inferior jurisdiction, is, 393, 437. Vol. I.— 3 18 THE JUDICIAL ORGANIZATION. clearly how the courts of the United States deduce their juris- diction and authority from the Constitution and acts of Con- gress, we propose, in this chapter, to examine in detail the precise meaning of those words of the Constitution in [184] which the subjects of judicial power are enumerated. The interpretation" of those words depends, like that of other provisions of the Constitution, upon those settled prin- ciples which are resorted to by all courts in construing stat- utes and organic laws. The provisions in question are of two kinds : 1. Those that confer jurisdiction ; 2. Those that authorize Congress to con- fer jurisdiction. The provision of the Constitution which defines the judicial power, is followed by a declaration that in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the supreme court shall have original jurisdiction ; in all the other cases, appellate jurisdiction, with such exceptions and under such regulations as Congress shall make. This provision fixes the original jurisdiction of the Supreme Court. It is neither necessary for Congress to authorize that court to exercise judicial power in such oases, nor competent for Congress to preclude them from so doing. ' But in respect to the appellate jurisdiction of that court, and in respect to all jurisdiction of the inferior courts which Congress is authorized from time to time to establish, the exercise of judicial power is conditioned upon authority being conferred by Congress, within the limits which have been marked out by the C^sti- tution." ' Kentucky v. Dennisdn, 24 How., for by statute." Me Martin, 5 Blatchf. 66 ; United States ». Hudson, 7 Oranch, 303. 33; Florida «. Georgia, 17 How., The Supreme Court is the only court 478. of the United States which derives any ' Abb. Nat. Big., titles Stjpbbmb part of its power directly from the OotrRT ; Circuit OouBT, 37-39. Constitution. The circuit and district Thus tlie authority of the courts of courts are, by authority of the Consli- the United States to issue the writ of tution, creatures of the national legis- certiordri, in connection with the writ lature, having such jurisdiction, and of habeas corpus, for the purpose of only such, as Congress has been pleased rendering their jurisdiction under the to confer upon them, and having no latter writ efEective, is that which can common law jurisdiction, though draw- be derived from section 14 of the judi- ing upon the common law for modes ciary act of 1789 (1 Btat. at L., 81; Bev. of procedure and practice when neces- 8tat., § .), which provides for issuing sary to carry into efiect the jurisdiction " writs of scire facias, habeas corpus, and given by statute. United States a. all other writs not specially provided Cultus Joe, 15 Int. Rev. Bee, 57. THE JUDICIAL POWER. 19 This discussion, therefore, of the scope of the judicial power as fixed by the Constitution, must be read with the qualification that the right of the courts to exercise these powers must be found also in some act of Congress. Congress has not yet provided for the exercise of all the judicial power described in the Constitution ; and with the single exception of the original jurisdiction expressly conferred upon the Su- preme Court, the actual power of either of the United States courts, in any case, must be supported, if at all, by the con- currence of a provision of the Constitution sanctioning the power, and a provision of a statute vesting that power in the court in question.' If the Constitution had ordained and established the {185] inferior courts, and distributed to them their respective powers, the courts could not be divested of them or re- strained in their exercise, by Congress. But as it has made no such distribution, but left to Congress the power to establish the courts, the result is that Congress must define their respec- tive jurisdictions ; and it follows, also, that, having a right to prescribe. Congress may withhold from any court of its crea- tion, jurisdiction of any of the enumerated controversies ; and that an act of Congress defining the jurisdiction of inferior •courts is not to be regarded as conflicting with the Constitution because it does not go to the full extent of the judicial power ^lUthorized by that instrument." It should be observed that these principles do not apply to ' It would be an error to suppose that confer on the courts of the United the courts of the United States have States a much broader original juris- original jurisdiction to enforce or pro- diction than they have done. But the tect every right or privilege secured or principle is now established that the guaranteed to the citizen by the Con- Circuit Court of the United States can stitution of the United States, and acts exercise jurisdiction in no case solely of Congress passed under its authority, upon the ground that it falls within the For, although the Constitution of the constitutional grant of judicial power United States declares that "the ju- to the United States. There must also jdicial power shall extend to all cases be an act of Congress expressly confer- in law and equity arising under this ring the jurisdiction. The circuit Constitution and the laws of the United court is a court of limited jurisdiction, States," it was early decided that this and the Supreme Court has held that provision of the Constitution did not " the fair presumption is (not as with itself vest in the circuit or district regard to a court of general jurisdic- courts of the United States any juris- tion that a cause is within its jurisdic- dlction whatever, but that those courts tion, unless the contrary appears, but could exercise jurisdiction only in rather) that a cause is without its ju- cases in which it had been expressly risdiction till the contrary appears, ■conferred by Congress. Confessedly, Harrison v. Hadley, % Dill., 329. ■the grant of the judicial power to the " Sheldon v. Sill, 8 How., 441. United States authorizes Congress to 20 THE JUDICIAL ORGANIZATION. the territorial courts of the United States, and the courts of the District of Columbia. The provisions of the Constitution respecting the judicial power are deemed to apply only to courts within the States. The territorial courts, and the local courts at the seat of government, are not regarded as standing on the same footing with the Federal courts ^generally. In legislating for the territories, or the District of Columbia,- Congress exercises an exclusive power of legislation, under the general authority given by the Constitution in respect to the territory belonging to the United States ; ' and it seems to be settled that the power of exclusive legislation imports also, as an incident, a co-extensive judicial power, at least so far as. private rights are to be enforced by judicial proceedings. Congress may, therefore, confer upon a territorial court a jurisdiction which could not be granted, under the Constitu- tion, to a court of the United States within one of the States.' Until very recently, the practice, pleadings, and forms and modes of proceeding of the territorial courts, as weU as their respective jurisdictions, were intended by Congress to be left to the legislative action of the territorial assemblies, and to the regulations which might be adopted by the courts themselves. But the power of Congress at any time to es- tablish regulations on these, as well as on any other, subjects of legislation, within the territories, has been explicitly as- serted by the supreme court.' And by act of April 7, 1874, ch. 8, §4 (18 Stat, at L. 27), Congress prescribed : " That it shall not be necessary in any of the courts of the several Territories of the United States to- exercise separately the common -law and chancery jurisdiction vested in said courts ; and that the several codes and rules of practice adopted in said Territories respectively, in so far as they authorize a mingling of said jurisdiction or a uniform course of proceedings in all cases, whether legal or equitable, ' Clinton v. Bngelbrecht, , 13 Wall., themselves. United States s. Cultus- 434. But compare Re Osterhaus, 6 Joe, 15 Int. Sev. Itec, 57. Am. L. T. Rep., 519. " American Ins. Co. v. Canter, 1 Pet., Although the district courts of a 511; Kendall b. United States, 13 i(^., Territory may in a sense be said to be 524, 615 ; Chouteau v. Rice, 1 Minn., of general jurisdiction, yet in the ex- 193. See also 13 Int. Rev. Rec, 163. ercise of their jurisdiction, and the ' Hornbuckle v. Toombs, 18 WaU.y settlement of their practice as circuit 648 ; see also Hershfield v. Griffith, Id., anddistrictcourtsof the United States, 657; Davis v. Bilsland, ic£., 659; Uni- they are subject to like limitations ted States v. Cultus Joe, 15 Int. Rev^ with the circuit and district courts Rec, 57. THE JUDICIAL POWER.^ 21 be confirmed ; and that all proceedings heretofore had or taken in said courts in conformity with said respective codes and rules of practice, so far as relates to the form and mode of proceeding, be, and the same are hereby, validated and con- firmed : Promded, that no party has or shall be deprived of the right or trial by jury in cases cognizable at common law." Sect. 15. Dormant power. — There was, at an early period, some difference of opinion as to whether the Constitution did not make it the duty of Congress to provide, by law, for the exercise of all the judicial power sanctioned by it ; but, in fact. Congress has not done so ; and the delineation of the Ju- dicial power contained in the Constitution, is now regarded as nothing more, in this respect, than a power vested in Con- gress to confer jurisdiction, in its discretion, \*-ithin those limits. "It was necessarily left to the legislative power," [186] says Mr. Justice Baldwin,' " to organize the Supreme <;!ourt, to define its powers consistently with the Constitution, as to its original j uri sdio tion, and to distribute the residue of ju- dicial power between this and the inferior courts which it was bound to ordain and establish, defining their respective powers, -whether original or appellate, by which and how it should be exercised. In obedience to the injunction of the Constitution, Congress exercised their power so far as they thought it ne- -cessary or proper, under the seventeenth clause of the eighth section, first article, for carrying into execution the powers vested by the Constitution in the judicial^ as well as all other 'departments and officers of the government of the United ■States. N"o department could organize itself ; the Constitu- tion provided for the organisation of the legislative power, and the mode of its exercise, but it delineated only the great 'Outlines of the judicial power, leaving the detail to Congress, in whom* was vested, by express delegation, the power to pass all laws necessary and proper for carrying into execution all powers except their own. The distribution and appropriate •exercise of judicial power must therefore be made by laws passed by Congress, and can not be assumed by any other de- partment," Sect. 16. Nature of judicial power.— We define the Judi- •cial power, as that phrase is used in relation to the distribu- ' Rhode Island ®. Massachusetts, 12 Pet., 657. 721. 22 THE JUDICIAL ORGANIZATION. tion of the functions of government, as — The authority to de- termine rights of person or property^ by arbitrating between adversaries, in specific controversies, at the instance of a party thereto. These five elements are essential constituents in the judi- cial power. The tribunal must have authority to determine controversies. Making an award which is subject to revision by the executive or the legislature, is not an exercise of judi- cial power. But the determinations of the judicial power are limited to concrete rights, and can not extend to purely ab- stract questions. And a judicial determination can only be made by arbitration between adversaries ; if there are not adversaries, there is no cause, and a fictitious litigation is a fraud upon the court. And where all these conditions are fulfilled, the court can only determine the specific cori- [187] troversy ; it can not enact general rules of justice, or establish principles, any further than the fact of de- termining a specific controversy in accordance with a general principle tends to' establish it as a recognized precedent. And finally, the least exercise of the judicial power depends upon its being invoiced by a party to the controversy. The judicial power never moves of itself. The executive and the legislative possess, within themselves, a legal volition. The judicial power has no will ; its function is, to apply the con- trol of justice to the wills of others when it is called upon to do so, but not otherwise. Sect. 17. Judicial power not exercised unless invoked. — The extension of the power of the courts of the United States to the cases and controversies specified does not sanction the exercise of anything more than 2^ judicial power, in reference thereto. The Constitution assumes that the judicial power is to be invoked in the due course of procedure, according to the usual forms of jurisprudence ; and controversies and cases which are not thus made the subject of litigation, are there- fore not brought within the judicial power. To bring this power into action, there must be a specific complaint against a particular person. The judicial department is enabled to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall as- sume such a form that the judicial power is capable of acting THE JUDICIAL POWER. 23 on it. That power is capable of acting only when the subject is submitted to it by a party who asserts his rights in the form prescribed by law. It then becomes a case.' When, however, such cases are made the subject of litiga- tion, they do not present, for the determination of the court, any other ^2jq. judicial questions. The authority is an au- thority to exercise judicial, not executive or legislative, power. In the words of Chief Justice Marshall,' " judicial power, as contradistinguished from the power of the laws, has no ex- istence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in dis- covering the course prescribed by law ; and, when that is dis- covered, it is the duty of the court to follow it. Judi- , cial power is never exercised for the purpose of giving [188] effect to the will of the judge ; always for the purpose of giving effect to the will of the legislature ; or, in other words, to the will of the law." Sect. 18. The judicial power distinguished from the executive and legislative. — The judicial power does not extend to all questions which may arise under the constitutions, laws, and trea,ties, or touching the subjects and classes of persons speci- fied in the clauses we are considering, even though presented in causes properly before the court. Some questions arising in such cases are the proper subjects of the legislative or ex- ecutive power. The courts are not only confined to contro- versies duly brought before them by adverse parties, but in the determination of such controversies they recognize the ex- istence of a class of questions beyond the appropriate sphere of judicial determination ; questions which are political in their nature, and belong to the other departments of the gov- ernment. This entire separation of the functions of the judi- ciary from those of the executive, is one of the characteristic features of our government ; though derived from our English a,ncestors. The principle involves somewhat more than the independence merely, of the judiciary ; the administration of judicial functions, under the Constitution of the United States, is designed to be entirely separated from the exercise of ex- ecutive power." Neither the legislative nor the executive de- • Osborn v. Bank of the Uaited " United States e. Blaisdell, 3 Ben. States, 9 Wheat. 738, 819. 133. 24 THE JUDICIAL ORGANIZATION. partment can be restrained in their action by the judicial department, although the acta of both, when performed, are in proper cases subject to its cognizance.' This distinction will be made more clear by adverting to the more important classes of questions of a political nature upon which the judiciary uniformly await the action of the other departments of the goyernment." It belongs to the legislative and executive power to ac- knowledge new States arising in the revolutions of the world, and, until such recognition by them, courts of justice can take no notice of any change. Upon this principle, where a civil war exists in a foreign nation, one part of which seeks to separate itself from the old established government, and erect itself into a distinct government, the courts of the United States must view such newly-constituted government as it is viewed by the executive and legislative branches of the United States. If our government remains neutral, and ' Mississippi «. Johnson, 4 WaU. 475, 500. Although the courts cannot directly restrain the (government of the United States, nor the action of the president as the executive power, nor thut of Congress as the legislative depart- ment .; yet when Congress makes an appropriation for a public improve- ment, and commits the execution of the work and the expenditure of the money to one of the departments, which in turn employs agents to carry forward the work, neither such de- partment nor its agents will be exempt from the restraining power of the courts, if either seek to execute the law in an unconstitutional manner ; as, by taking private property against the consent of the owner and without compensation. Avery s. Fox, 1 Abb. U. 8. 346. ' See the cases collected in Abb. Nat. Dig., titles Jurisdiction ; Oouets ; Treaties ; CrviL War. A bill in equity filed by one of the United States to enjoin the secretary of war, and other officers who repre- sent the executive authority of the United States, from carrying into exe- cution certain acts of Congress, on the ground that such execution would an- nul and , totally abolish the existing State government of tlie State, and establish another and different one in its place, — ^in other words, would overthrow and destroy the corporate existence of the State by depriving it of all the means and instrumentalities whereby its existence might and other- wise would be maintained, — calls for a judgment upon a political question, and will therefore not be entertained by the courts. This character of the bill is not changed by the fact that in set- ting forth the political rights sought to be protected, the bill avers that the State has real and personal property (as for example, the public buildings, &c.), of the enjoyment of which* by the destruction of its coi-porate exist- ence, the State will be deprived, such averment not being the substan- tive ground of the relief sought. Geor- gia V. Stanton, 6 WaU. 50. The assertion of a plaintiff that he is the owner of a tract of land which the land officers of the government treat as public land, does not take the case out of the rule that the judiciary can not interfere . with the duties of the executive officers of government, unless those duties are of a character purely ministerial, involving no exer- cise of judgment or discretion, and where it is the duty of these officers to determine, upon all the facts, whether the land is open to preemp- tion or sale. Litchfield «. Register, 9 Wall. 57.5. THE JUDICIAL POWER. 35 • recognizes the existence of a civil war, its courts cannot con- sider as criminal those acts of hostility which war authorizes, and which the hew government may direct against its enemy. All captures made by each must be considered [189] as having the same validity ; and if our government has avowed her determination to allow to each party the same rights of asylum, hospitality, and intercourse, all the im- munities which may be claimed by public ships in our ports under the law of nations must be considered as equally the right of each ; and as such must be recognized by our courts of justice, until Congress prescribes a different rule. So, too, the power of recognizing a State government, or the existence of a tribal organization among Indians upon the national territory, is political and not judicial. It rests with Congress, and not with the courts. Upon the same principle, the question whether the Confederate States were, during the civil war of 1861-5, a government de facto, entitled to the belligerent rights and principles that belonged to a sovereign nation, so that a commission issued to an armed vessel, by the government of the Confederate States could operate to protect such Vessel from the charge of piracy for hostilities committed by her, was a question which belonged to the legis- lative and executive departments. When it was jdecided by them, the courts of the United States followed their decision. As those departments did not recognize th*» existence of the new government, the courts of the nation could not do so, but regarded the ancient state of things as remaining un- changed. The condition of peace or war must be determined by the executive department of the government, and the courts are bound by the decision of that department upon the, question. And when war breaks out, the question what shall be done with enemy property within the territory of the United States, is a question rather of policy than of law, and as such, is also proper for the consideration of the legislative department of the government, not of the executive or judiciary. ' ' But when the courts have acquired There is no power in the executive jurisdiction of cases of maritime cap- department of the government to re- ture, the political department of the vise and reverse the judgments of the government should postpone the con- prize or other courts of law of the Bideration of questions concerning re- United States^ or to criticise and con- clamation and indemnities until the damn their supposed errors. Captures judiciary has finally performed its on the Rio Grande, 11 0-p.AU.-Gtn.\V^. functions in those cases. And when a court of the United 26 THE JUDICIAL ORGANIZATION. The boundary line determined on as the true one between this and another country by the political departments of the government, must be recognized as the true one by the judi- cial department. In respect to dealings with foreign nations generally, since the judiciary is not the department of the government to which the assertion of the interests of the nation against foreign powers is confided, its duty commonly is to decide upon [190] individual rights, according to those principles which the political departments of the nation have estab- lished. To inflict retaliation upon the subjects of ^a foreign State for its unjust proceedings towards our citizens, is a political, not a judicial, measure. It is for the consideration of the government, but is not a rule of decision in courts of justice. And if a merchant vessel of the United States be seized by the naval force of the United States within the territorial jurisdic- tion of a foreign friendly power, for a violation of the laws of the United States, it is an ofl'ense against that power, which must be adjusted between the two governments ; a court can take no cognizance of it. The validity of the public acts of the treaty-making power, and the construction and enforcement of treaties, are, largely, matters of executive and legislative, rather than judicial, cog- nizance. It is true that treaties are a part of the laws of the land, and, as such, tp be administered by the courts ; but this principle cannot fully apply except where a treaty can be said to operate of itself without the aid of legislative provi- sion. This point will be again considered in more detail in "cases arising under treaties." The construction and application of the acts of the legisla- tive power, is for the judicial department. Congress may, indeed, by a declaratory act, prescribe or explain the meaning to be attributed to language of an act of Congress in future cases. But an act which assumes to give construction to existing acts, which shall govern the decisions of the courts as to cases which have already arisen, is inoperative. ' States, in the exercise of its discretion, power or duty to interfere with pro- has advisedly determined to permit a ceedings. The Meteor, 13 Op. Mt.- vessel libeled for violation of the neu- Ben. 2. trality laws, to be released on bond, ' Home Mut. Ins. Co. of New Orleans the executive department has no a. Stockdale, 16 Int. Sev. Sec. 30. THE JUDICIAL POWER. 27 So under an act of Congress, providing that the laws of the United States shall be deemed in force in a territory " so far as the same or any portion may be applicable," the power is devolved upon the courts, when the question arises, to deter- mine what laws are "applicable," and what are not. In determining this question, courts are not bound by any con- struction which the administrative department of the govern- ment in the discharge of its duties may have given to such provision.' Sect. 19. Judicial power distinguislied from quasi judicial func- tions. — The authority given to executive officers to exercise judi- cial functions incidentally or occasionally, is not that judicial power to which the third article of the Constitution has refer- ence." This point is clearly stated by Mr. Cuetis,' in the following language : "The circumstance that questions of fact, or questions of law, are to be determined in the discharge of a particular duty, or the exercise of a particular function, has no neces- sary tendency to show that the duty or function is to be discharged by the judiciary. In the discharge of both executive and legislative duties, questions of law and of fact must often be determined ; but it does not follow that they are to be determined in a court of judicature. Silch questions may even be judicial in their nature ; that is to say, they may involve judgment and" discretion, and require the finding of facts, and the ascertaining of the law that is to be applied to them ; but the power under which this is done may still be distinct from the judicial power granted by the Con- [191] stitution to the courts of the United States." The distinction between the judicial power contemplated by the Constitution and the quasi judicial power vested by law in officers upon whom an exercise of discretion is cast, is well illustrated in the cases of United States «. Yale Todd (13 How., 52, note), and United States w. Ferreira (Id., 40). ' Lownsdale «. Portland, Beady, 1. power to settle the rights under trea- ' Dainese «. Allen, 3 Abii. Pr. N. 8., ties, except in cases purely political. 214. The construction given to a The construction of them is the pecu- treaty by an executive officer should liar province of the judiciary, -when a form a rule for the subsequent conduct case shall arise between individuals, of the department, but it can not affect Wilson v. Wall, 6 Wall. 83. titles previously given by the govern- '1 Curt. Juris. S Pr. of U. 8. ment. Congress has no constitutional Courts, 94. 28 THE JUDICIAL ORGANIZATION. In the year 1792, Congress passed an act (1 Stat, at L., 243) directing certain persons to be placed on the pension list for disability, and that each should also be allowed " such further sum for the arrears of pension, from the time of such disability, not exceeding the rate of annual allowance, in con- sequence of his disability, as the Circuit Court of the district in which they respectively reside may think just, provided that in every such case the rules and regulations following may be complied with." These rules required applicants to attend the court in person, or furnish certificate of inability, and to produce to the Circuit Court a certificate of service and affidavits of neighbors ; and that the Circuit Court should examine the nature of the wound or disability, and transmit the result of their inquiry to the Secretary of War, with their opinion as to what proportion of monthly pay would be equivalent to the disabilities. And it was declared to be the duty of judges of Circuit Courts respectively to remain at the places where their courts should be held, at least five days after the opening of sessions, to give opportunity for such ap- plications. It was also made the duty of the Secretary of War to place the names of applicants so certified by the cir- cuit judges, on the pension list, except that where he had cause to suspect imposition or mistake he should merely re- port the same to Congress. The circuit judges generally held that since the decision was subject to the revision of the Secretary or of Congress, whereas, by the Constitution, the judiciary were independent of any such control, they could not, in their judicial capacity, perform the duties called for by the statute ; but some of them were of opinion that the act could be considered as appointing the judges commissioners for the purposes mentioned. The question came before the Supreme Court in the case of Yale Todd, and that court held that the power thus proposed to be conferred on the circuit courts was not "judicial power," within the meaning of the Constitution, and, therefore, could not lawfully be exercised by courts of the United States ; ["192] and that, as the statute intended to confer the power on the courts as a judicial function, it could not be construed as an authority to judges composing the court to exercise the power out of the court in the character of com- missioners. In the case of United States «. Ferreira (13 How., 40), an THE JUDICIAL POWER. 2& appeal was brought to the Supreme Court from an award made by the district judge of the United States for the north- ern district of Florida, upon claims for injuries alleged to have been suffered by Spaniards by the operations of the American army in Florida. The treaty of 1819 between the United States and Spain, stipulated that the United States should cause satisfaction to be made for the injuries, if any, "which by process of law shall be established" to have been so suffered. By acts of Congress passed in 1823 and 1834, the judge of the territorial court of Florida was directed to receive, examine, and judge all causes of claims for losses, and report his decisions, if in favor of the claimants, together with the evidence, to the Secretary of the Treasury, who, on being satisfied that the same was just and equitable, should pay the amount thereof. By the act of March 3, 1849, for the relief of certain claimants, it was provided "that the judge of the District Court of the United States for the northern district of Florida be, and is hereby, authorized and directed to receive and adjudicate " upon certain claims therein speci- fied. The district judge having made his award on those claims,, the government took an appeal to the Supreme Court, and the question was presented whether such an appeal would lie. The Supreme Court held that the determination, although made by a judicial officer, and involving power of a judicial nature as distinguished from ministerial powers, and although the proceedings had been conducted by the district judge with as much conformity as possible to proceedings in a court of justice, was not the exercise of the judicial power of the United States, and therefore not subject to review in the Su- preme Court. "It is manifest," said the court, "that this, power to decide upon the validity of these claims is not con- ferred on them as a judicial function, to be exercised in the ordinary forms of a court of justice. For there is no suit ; no parties in the legal acceptance of the term are to be made ; no process is to issue ; and no one is authorized to appear on behalf of the United States, or to summon witnesses in the case. The proceeding is altogether ea; parte; and all tha.t the judge is required to do, is to receive the claim [193] when the party presents it, and to adjust it upon such evidence as he may have before him, or be able himself to obtain. But neither the evidence nor his award are to be 30 THE JUDICIAL ORGANIZATION. filed in the court in whicli h.e presides, nor recorded there." "The power conferred by these acts of Congress upon the judge as well as the Secretary, are, it is true, judicial in their nature. For judgment and discretion must be exercised by both of them. But it is nothing more than the power ordina- rily given by law to a commissioner appointed to adjust claims to lands or money under a treaty ; or special powers to inquire into or decide any other particular class of controversies in which the public or individuals may be concerned. A power of this description may constitutionally be conferred on a Sec- retary as well as on a commissioner. But it is not judicial, in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States." ' Whether the power conferred upon the judge by such a statu te is valid or not, was not expressly determined by the court in this case. Upon the same principle it was held that so long as the de- cisions of a court of claims were subject to the revision of Con- gress, they being, in fact, little more than the results of ad- visory examinations of claims against the United States, re- ported to Congress, or the executive departments, for their decision, the determinations of that court were not the exer- cise of judicial power such as to authorize appeals to the Su- preme Court.' Where, however, proceedings are authorized by statute to be instituted in a court, to which there are adverse parties, and which are conducted upon allegations and evidence, ajid are subject, not to review by the executive department, but, if at all, by the higher tribunals of the United States, the function of the court is to be regarded as judicial within the meaning of the Constitution. It makes no difference that the proceedings, strictly speak- ing, originate in the action of a board of commissioners, [194] who are not clothed with the judicial power of the United States, if, upon the removal of them into the court, they are not merely submitted to re-examination, but ' This decision was followed and ap- Solicitor of the Treasury, of an ao- plied in the Court of Claims, in Hum- count of a public officer, is not an ex- phreys o. United States (2)«s., 304). ercise of the judicial power of the ^1 Gt. of 01. JS. (Nbtt & S.), xxxiii. United States, within the meaning of So, too, the issuing of a distress the Constitution. Murray v. Hoboken warrant, upon the auditing, by the Land & Improvement Co., 18 How., 373. THE JUDICIAL POWER. 31 the court hears the case anew, not only upon the papers and testimony which had been nsed before the commissioners {they being made evidence in the court to which the proceed- ing is removed), but also upon such further evidence as either party may produce. In such case the suit, although removed by petitipn for review, is to be regarded as an original pro- ceeding, in substance and intent, and within the judicial power of the United States.' Sect. 20. Cases in law and equity, etc. — To appreciate the ■effect of the provisions which we are now considering, it is w^ell to observe that they do not, strictly speaking, create new powers, but only new agents. They do not originate new methods of administering justice, but merely regulate the administration of justice in methods already existing in the communities united under the Constitution, by vesting a part of that administration in new and different tribunals. Juris- diction in law' and in equity, in admiralty and maritime causes, in controversies between the various parties enumer- ated, was already exercised, in various tribunals of the coun- try, up to the time when the Constitution went into effect. And although the adoption of the Constitution was justly expected to give rise to a new class of questions, — namely, the judicial interpretation of its own provisions, and of acts of the government done under its authority, — it is not to be re- garded as creating any essentially new judicial power, or contemplating that new methods of jurisprudence would spring immediately from it. The Constitution, in this respect, had simply the effect to transfer from other tribunals a certain part of the existing and established current of judicial busi- ness. The terms "cases in law, equity,' and of admiralty juris- diction," are used in the Constitution, and in the judiciary and process acts of 1798, according to the jurisprudence of England ; defining them, in contradistinction to each other, by the rules and, principles of the common law, as adopted :and in force in the several States at the revolution, or the 'United States c. EioMe, Vt How., Stat, at L., 140), where the sole quea- S35. tion touching the title to the office The United States courts have no arises out of the denial of the right to jurisdiction over contested elections vote to citizens on account of their race, for State officers, except in the single color, or previous condition of servi case, provided for in a recent act (16 tude. Harrison ®. Hadley, 2 Bill., 339. 32 THE JUDICIAL ORGANIZATION. adoption of the Constitution, and passage of the acts of Con- gress. ' [195] This recognition by the Constitution of two systems of jurisprudence, legal and equitable, is regarded as es- tablishing the distinction between them, and jperpetuating, for the courts of the United States, the distinction between suits in which legal rights are to be ascertained and deter- termined, and those in which ec[uitable rights alone are re- cognized and equitable remedies administered.' Sect. 21. Common law. — The phrase, "cases in law and equity," marks the judicial character of the power conferred. The word "law," as here used, means the same system as is designated by the words "common law," in the seventh amendment to the Constitution. It includes all those pro- ceedings in which legal rights are to be ascertained and de- termined, whether they be the old long-settled proceedings of the common law, or new legal remedies, different, it may be, from the old common law forms, but proceeding according to the general course of common law principles, in contradis- tinction to those where equitable rights alone were recognized and equitable remedies administered, as well as in contradis- tinction to those where, as in admiralty, a mixture of public law, maritime law, and equity, is often found in one proceed- ing.' The American colonies had adopted the common law of England, not in its full extent, but with varying limitations and qualifications. In general, the common law was adopted in each colony as far as it was found, by the courts adminis- tering jurisprudence, to be conveniently applicable to the pe- culiar situation of the people ; and as the people of each col- ony were independent of the rest, in this respect, it has re- sulted that the phase of common law presented in each of the States differs, more or less, from that presented in the others. In none is it precisely co-extensive with the common law of England. The statutes passed in England in amendment of the com- mon law, before the revolution that separated the colonies, and which are applicable to the situation of the people of this 'Baker «. Biddle, BaUw., 894; "Fenii s. Holme, 21 ffo?«., 481; Ben- BaicB v. The James & Catharine, Id., nett ®. Butterworth, 11 Id., 669. 544. 'Parsons B.Bedford, 3 Pet., 483, 446 ; Parish o. Ellis, 16 Id., 451. THE JUDICIAL POWER. 33 eountry, are generally considered as forming a part of our common law ; and the same rule applies, of course, to the adjudications'of the English courts previous to that [196] time. The statutes of England since that date, of course, do not enter into our law ; nor are the adjudications of the English courts, had since the revolution, considered of binding authority in the courts of this country : they have with us the weight of opinions, not that of precedents.' The extent to which the common law was adopted, by this mention of it in the Constitution, as a system of Jurisprudence for the courts of the United States, has been the subject of some controversy. Mr. Justice Stoet expressed the opinion that "whether the common law of England, in its broadest sense, including equity and admiralty, as well as legal doc- trines, be the common law of the United States or not, it can hardly be doubted that the Constitution and laws of the United States are predicated upon the existence of the common law. The existence, therefore, of the common law is not only supposed by the Constitution, but is appealed to for the con- struction and interpretation of its powers." ' This view is, doubtless, sound, although the practical con- clusion which he then deduced from it, — namely, that com- mon law offences, though not recognized by any act of Con- gress, if committed against the United States, were cognizable under the authority of the United States, within the meaning of the judiciary act, — has been wholly overruled. It has been repeatedly declared by the courts of the United States that, in a strict sense, there is no common law of the United States. Each of the sovereign and independent States of which the Federal government is composed, may have its local usages, customs and common law, but there are no prin- ciples pervading the Union as distinguished from the several ,, States, and having the authority of law in its courts, except those embodied in the Constitution or laws of the Union. Since, then, the common law has not been made a part of the jurisprudence of the United States by enactment, when com- ' Mh. Nat. Big., title Common Law. law, not including the alterations and A statute declaring that in all cases amendments which have been made in not particularly provided for by the it by British statutes, antecedent to act, the common law shall govern, the revolution. Levy «. McCartee, 6 must be held to refer to the common Pet., 103. ., „ „ law in contradistinction to statute law, ' United States v. Coolidge, 1 OaU., and, therefore, it adopts the common 489. Vol. L— 3 34 THE JUDICIAL ORGANIZATION. mon law rights are asserted in a court of the United States, the court must look to the State in which the case arose. [197] But this doctrine is not to be applied in a way which would exclude the resort to principles of common law, in administering justice in cases in which the right or the remedy is shown to exist either by the positive law of the United States, or by the local law of the State in which the case arises. In a general sense, common law principles form the constant sustenance of the jurisprudence of the United States courts, and are necessarily involved at every step of procedure, whether it be in the exercise of implied powers, such as are incidental to the existence of the court, or in the construction and interpretation of the statutes by which their expressed powers are conferred and defined. Sect. 22. Common law offences. — It is well settled that the common law of England is not put in force directly or indi- rectly by means of any clause in the Constitution, so as to make anything an offence cognisable by courts of the United States which has not been made so by the Constitution itself, or acts of Congress passed under it ; and an indictment can- not be sustained in the courts of the United States, unless some law of the United States has declared the offence com- plained of to be a crime, and given to the court jurisdiction over it.' The result of the cases upon the criminal jurisdiction of the United States is clearly stated by Judge Conkliwg,' as follows : " In order to ascertain its extent, resort must be had to the various statutes of the United States providing for the punishment of crimes. For, although the national courts are unquestionably to look for the common law, in the absence of any statutable provisions, for rules to guide them in the exercise of their functions in criminal as well as civil cases, it is to the statutes of the .United States, enacted in pursuance of the Constitution, alone, that they must have recourse to determiile what constitutes an offence against the United States. The United States have no unwritten criminal code to which ' Abl). Nat. Dig., title Crimbs. As particular offence, is no ground for ex- to the distinction between punishing cepting it from the general rule that an offender, and affording a remedy if the judicial cognizance of the offence in rem, — see The Estrella, 4 Wheat., is grounded on the common law, the 398. State courts alone have jurisdiction. Even the fact that the general gov- United States v. Hutchinson, 4 Pa, einment is the party injured by a Law J. Bep., 311. " Oonhlingh Treatise, 167. THE JUDICIAL POWER. 35 Tesort can be had as a source of jurisdiction. A considerable proportion of these offences are, in their nature, oi admiralty jurisdiction. But this distinction in our system is merely theoretical, the form of prosecution and the rules of evi- dence being the same in these last mentioned cases as [198] in others. The Constitution, it is true, extends the judicial power of the United States to all cases of admiralty and maritime jurisdiction ; and this plenary grant embraces criminal as well as civil causes. But this power can be brought into action only through the instrumentality of the national legislature. This principle is applicable as well to ■criminal as to civil jurisdiction, and extends as well to ad- miralty as to common law offences.'" The subject of criminal jurisdiction will be more fully con- sidered under the topic of Ckimbs, and in connection with the statute regulating the modes of procedure, and the rules of decision in the United States courts. For the present, it is sufficient to observe that the Constitution appeals to and adopts the common law, — in the general sense of that term, not merely according to the practice in the State courts, — to the extent at least of making that law a guide in the adminis- tration of remedial justice. It does not give jurisdiction of offences which are not declared by statute ; but if jurisdiction be given by Congress, the common law is involved .at every step in its administration. Sect. 23. Equity. — The Constitution provides, also, for that peculiar system of remedial justice which had its origin -and growth in the defects or inaptness of the common law remedies. The same reasons which gave rise to the establish- ment of tribunals of the United States to administer the or- dinary remedies of common law, made necessary and appro- priate the addition of those equitable powers which have been rfound essential to the attainment of justice, especially cases involving fraud, mistake and trust. In accordance with the general tendency of American jurisprudence, .these powers have been vested by Congress in the same tribunals on which common law powers were conferred ; but they are, however, administered as distinct systems, and the Supreme Court of the United States has never yielded to the movement which ' For a discussion of the power of tempt, see United States v. Jacobi, 4 the national courts to jpunish for con- Am. Law T. U. S. Gts., 156 ; 14 Int. JSev. Bee., 45. 36 THE JUDICIAL ORGANIZATION. has appeared in many of the States toward merging the two methods in a common form of procedure. The distinction between law and equity is recognized and established, for the national courts^ by the Constitution and the acts of Congress regulating procedure, and cannot be obliterated, with respect to those courts, by any statutes of a State. Notwithstanding a reformed code of procedure of a State declares that the dis- tinction between law and equity is abolished, and that there shall be but one form of action, — a civil action, — if a com- plainant resorts to a Federal court, he must proceed at law or in equity, according to the nature of his case. If he files a bill in equity when he has an adequate remedy at law, his bill may be dismissed, even on appeal. ' So also the equity jurisdiction conferred on the Federal courts by the Constitution and statutes of the United States is not subject to limitation or restraint by any State legisla- tion, but is uniform throughout the States.' ' And upon the other hand, the courts of the United States cannot exercise equity powers, except such as are conferred by an act of Congress, and those judicial powers which the High Court of Chancery in England, under its judicial capacity as a court of equity, possessed and exercised at the time of the formation of the Constitution of the United States. Powers not judicial, exercised by the chancellor as the repre- sentative of the king' s prerogative, are not possessed by the circuit courts.' But while alterations in the jurisdiction of the State courts cannot affect the equitable jurisdiction of the circuit cburts of the United States, so long as the equitable rights themselves remain, yet an enlargement of equitable rights may be ad- ministered by the circuit courts as well as by the courts of the State.* The grant of equitable jurisdiction is not limited to such suits as were known at the time of the passage of the act, but is prospective. Whenever an act is passed which authorizes the commencement of a suit, jurisdiction of the case is thereby vested in the Federal courts, if the character of the parties warrants it, "and it comes within the meaning of the statute. The phrase suit of a civil nature at common ' Thompson «. Railroad Companies, ' Payne ». Hook, 7 W(M., 425. 6 Wall., 134. To nearly same eflEect, ' Loring «. Mnrsh, 2 Cliff.^'iA^. Walker®. Dreville, 12 TFoZZ., 440 ; * Case of Broderick's Will, 21 WiiK., Shuford V. Cain, 1 Mb. V. S., 302. 503. THE JUDICIAL POWER-. 37 law, or in equity," in the grant, was used in contradistinction to admiralty and criminal cases ; not to restrict the jurisdic- tion to old and settled forms. ' ^ And the principle that the old-established distinction be- tween law and equity is to be observed in the courts of the United States, applies to the remedy, and not to the right. It does not follow that every right given by the English law, and which, at the time the Constitution was adopted, might have been enforced in the Court of Chancery, can also be en- forced in a court of the United States ; the right must, be .given by the law of the State or of the United States. It is the form of remedy for which the Constitution provides ; and if a complainant has no right, the Circuit Court, sitting as a court of chancery, has nothing to remedy in any form of pro- ceeding.' In the application of their equity jurisdiction, the courts of the United States follow, generally, the rules of equity, and the modes of procedure of ;o'ther courts of equity having full chancery powers, as the same are understood in England, and in general throughout those States of the [199] Union in which a full equity system exists. The ex- tent of this jurisdiction will be considered in more detail, in connection with the statute which forbids suits in equity in cases where there is due remedy at law. Sect. 24. Cases arising under the Constitution, laws and treaties. Not every violation of the Constitution or laws or treaties of the United States, is within the judicial power : for if a question can not be brought into a court, there is no cause, in law or equity, and no jurisdiction is given. But if, in any case depending in a court, the controversy should depend on the conflict of a law of any State or any other act, with the national Constitution, laws or treaties, it would then be a case to which the judicial power of the United States would ex- tend. A case arising under the Constitution, a law or treaty, is not necessarily one in which a party comes into court to de- mand something conferred on him by the Constitution, the law, or the treaty. This would be too narrow a construction. A case in law or equity consists of the rights of the one party as well as the other, and may truly be said to arise under the ' United States «. Black, 3 Biss., " Meade v. Beale, Taney., 339. ^06. 38 THE JUDICIAL ORGANIZATION. Constitution or a law of the United States, whenever its cor- rect decision depends on the construction of either.' This is the interpretation put on this part of the Constitution, in the enactments regulating the review, by the Supreme Court, of judgments of the State courts." But the case is not regarded as arising under one of those instruments when neither party claims under it, but it is in- terposed as the foundation of a right in a third person, which is insisted as an obstacle to the plaintifl^'s recovery.' The- right of one party or the other must depend upon the Consti- tution, laws or treaties. It is not necessary that the case should turn wholly upon those instruments. If one of the questions to which the ju- dicial power of the Union is extended by the Constitution forms an ingredient of the cause, the case is within the ju- dicial power, although other questions of law or fact may be involved. A cause may depend on several questions of fact and [200] law. Some of these may depend on the construction of a law, others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction that the title or right set up by the party may be defeated by one con- struction of the Constitution or law of the United States, and sustained by the opposite construction, provided the laws necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction. The existence of such other questions cannot arrest the proceedings. If the evidence of other questions dependent on general principles of law were sufficient to withdraw a case from the jurisdiction of the Federal courts, almost every case, although involving the questions intended by the Constitution to be de- termined by the Federal courts, would be withdrawn ; for there is scarcely any case every part of which depends on the Constitution, laws, or treaties. This rule was declared by the Supreme Court in the case of Osborn t). Bank of the United States (9 Wheat.., 738), and the circumstances of the case were such as to afford a striking exemplification of the rule. ' Cohens v. Virginia, 6 Wheat., 264, of Feb. 5, 1867, § 2; Rev. Stat., % 709. 879. ' Owings v. Norwood, 5 Orane\ = Act of Sept. 34, 1789, § 35 ; Act 844. THE JUDICIAL POWER. 39 In the year 1824 the president and company of the Bank of the United States brought an action in a circuit court of the United States. This corporation was formed by a charter granted by act of Congress, which contained, in express words, power to sue and be su^d in all State courts having competent jurisdiction, and in any circuit court of the United States. The action in question was brought against Osborn, the Auditor of the State of Ohio, to enjoin him from enforcing a tax upon the bank. One of the main questions in the cause, on an appeal Tfhich brought- it before the Supreme Court, was, whether the action was within the judicial power of "the- United States. The court held that since the corpora- tion was a being which could acquire no right, make no con- tract, bring no suit, that was not authorized by a law of the United States, all its actions and all its rights were dependent on that law, and that even an action brought by it on a con- tract would be within the judicial power of the United States. The first question in such an action, lying at the foundation of the cause, is, has this legal'entity a right to sue % the next, had it a right to make this particular contract ? These are important questions, and they exist in every possible case, and depend entirely on a law of the United States. Whether in fact relied on or not in the defence, they [201] are still a part of the cause, and may be relied on. The principle is illustrated by contrasting an action brought by such an artificial person created by the laws of the United States, with an action brought by a naturalized citizen. Such a citizen is, indeed, made a citizen under an act of Congress, but the act does not give, regulate or prescribe his capacities, as is the case in respect to the charter of the corporation. On the other hand, actions brought by officers of the United States, suing in their own names as such, under acts of Congress authorizing them to sue in the courts of the United States, are cases arising under the laws of the United States, and are within the judicial power. So are those cases in which a duty is imposed upon an offi- cer of the United States by acts of Congress, and protection becomes necessary in the discharge of his functions. "It is not unusual," said the court in the same case, "for a legislative act to involve consequences which are not ex- pressed. An officer, for example, is ordered to arrest an indi- vidual. It is not necessary, nor is it usual, to say that he 40 THE JUDICIAL ORGANIZATION. shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from State control." "The collectors of the revenue, the car- riers of the mail, the mint establishment, and all those insti- tutions which are public in their nature, are examples in point. It has never been doubted that all who are employed in them are protected while in the line of duty, and yet this protection is not expressed in any act of Congress. It is inci- dental to, and is implied in, the several acts by which these institutions are created, and is secured to the individuals em- ployed in them, \ij the Judicial power alone ; that is, the ju- dicial power is the instrument employed by the Government in administering this security." ' Sect. 25. What cases arise under the Constitution. — The Con- stitution of the United States, and the laws made in pursu- ance thereof, being paramount, anything in the Constitution or laws of any State to the contrary notwithstanding, if the Con- stitution or laws of any State are in any respect repug- [202] nant to the Constitution and laws of the United States, they are so far void ; and the judicial department of the United States is both empowered and obliged to decide on the question of their validity, when it is brought before them in due course of litigation. JSTor is their power in this respect limited to the examination of the legislative acts of the several States. It results from the very nature of written Constitutions that the legislative acts must be controlled within the limits fixed by the organic law. It is emphatioally the province and duty of the judicial department to say what the law is, if the two statutes conflict with each other. When drawn in question before the court, the court must decide on the operation of each ; and if both a law and the Constitution apply to a particular case, and they are in opposition, the court must either decide that case in conformity to the law, or in conformity with the Constitution, disregarding the law. The court must determine between these conflicting rules. This is the very essence of judicial duty, and the courts are bound to give effect to the superior ordinance. And when the Supreme Court has declared State legislation to be in conflict with the Constitution of the United States, and, therefore, ' Osborn «. Bank of the United Statefs, 9 Wheat., 738, 865. THE JUDICIAL POWER. 41 Toid, the State tribunals are bound to conform to such deci- sion.' The courts oi the United States are not, however, author- ized to pronounce a State statute void merely upon the ground that it interferes with vested rights, provided it does not so interfere as to impair the obligation of a contract, or by being •an ex post facto law j, in either of which cases it would contra- vene restrictions imposed on the States by the Constitution. The only inquiry for them in this respect is — does the statute violate the Constitution of the United States, or the laws and treaties ? The courts of the United States cannot revise a State, statute upon general grounds of justice or policy, or of inconsistency with the State Constitution." Nor can they with propriety, in an action between individuals, inquire into the validity of a legislative act of a State, on allegations of ■corruption in procuring its enactment. ° Sect. 26. Cases arising under treaties. — A treaty of the United States is the law of the land, so far as it is operative without any legislative provision, and is as much to be regarded by the court as an act of Congress.' And this [203] is true of a treaty with an Indian tribe within our boundaries as well as of treaties with foreign nations ; ' and if the laws of a; State contravene such a treaty, they must be -declared in so far void by the courts when the question is brought before them for decision.' When even the Constitution of a State comes in conflict with a treaty of the United States, the former must yield so far as is necessary to give effect to the latter.' The distinction already pointed out" between judicial and political power is of peculiar importance in cases arising un- der treaties. The precise line of demarkation has not yet been completely drawn by adjudication, but several principles are settled. In the first place, the rule that a treaty has the' effect of ' Cook «. MofiFatt, 5 Bow., 395, 308. 323. It has been held, however, on ''Abb. Nat. Dig., title Constittj- the other hand, that the courts cannot TiONAL Law. declare an act of Congress unconstitu- ' Fletcher v. Peck, 6 Granch, 87. tional on the ground that it is in vio- * United States v. The Peggy, 1 lation of an obligation imposed by a Granch, 103. • treaty with a foreign power ; that is ' Turner v. Am. Baptist Miss. TJn- an international question. Grey v. ion, 5 McLean, 344. Clinton Bridge, 7 Am. Law Beg., N. ' Worcester v. Georgia, 6 Pet., 515. S., 149. ' Gordon v. Kerr, 1 Wash. G. Gt., » Ante, § 18. 42 THE J-UDICIAL ORGANIZATION. the supreme law of the land is to be understood as applying only to those cases where the treaty is operative in itself without the aid of legislation. A provision which the treaty- making power, without the aid of Congress, cannot carry into effect, is not treated as the law of the land until that aid has been given, and the legislative power has thus fulfilled its necessary function to complete the operative character of the treaty. When the contracting parties engage to do a particular act, — as when one Grovernment engages that the rate of duty levied by it on imports from the country of the other shall not exceed a certain rate, — the treaty addresses itself to the political, not to the judicial department; the legislature must execute such a contract before it can become a rule for the courts, and meanwhile they are not to disregard pre-ei- isting laws of Congress upon the subject, although the stipu- lation of the treaty is repugnant thereto, or calls for a change thereof.' Upon the same principle, a treaty which provides for the payment of a sum of money is not, in this respect, operative as a law until Congress has appropriated the sum ; and a treaty providing that grants of lands previously made [304] by one of the contracting powers shall be ratified and confirmed to persons in possession, is not operative as a law, in this respect, until such ratification and confirmation has been had by an act of the legislature. Again : the capacity of the contracting power with whom the Government has dealt, is a subject for the political de;^art- ment of the Govel-nment, and will not be inquired into by the courts. The question whether the king of a foreign country, with whom the President has made a treaty, has, by the Con- stitution of that country, the power to make or enter into such stipulations, is a political, and not a judicial question. The Constitution having vested the treaty-making power in the President and Senate, a treaty made by that authority cannot be disregarded by the courts, in any of its provisions, without violating the Constitution. It may be that the judicial power extends to such questions, as whether a treaty under which a case arises has b^en naade and ratified by the President, with the advice and consent of ' Foster ®. Neilson, 2 Pet., 258, 814 ; Taylor «. Morton, 2 OuH. G. at., 454. THE JUDICIAL POWER. 43 the Senate ; whether it is temporary, and has^expired, or ia perpetual ; whether it has been dissolved by mutual agree- ment, or has been declared to be void by the nation through its proper officers ; whether it contains articles repugna.nt to the Constitution of the United States, and to other similar ques- tions, touching what has been termed the necessary validity of a treaty ; yet where the alleged invalidity of a treaty turns upon the question whether it has become void or voidable by reason of violation on the part of a contracting power, — a question which is not to be determined by fixed rules of juris- prudence, but entirely by prudential considerations, — the courts will not pass upon the point.' And lastly, in respect to the application of treaty stipula- tions, the judicial power is to be exercised, no tin their construc- tion, but only in the interpretation of them. A court cannot alter, amend, or add to a treaty by the insertion of any clause, small or great, or dispense with any of its conditions and re- .quirements, or take away any qualification, or integral part of any stipulation, upon any notion of equity, or general con- venience or substantial justice. The doctriae of a perform- ance cy-pres, so just and appropriate in the civil concerns of private persons, has no application to the solemn com- pacts of nations. The judicial tribunals have as little [205] power to dispense with form, as substance.' It is com- petent, however, foi- Congress to confer upon the judicial de- partment the power to determine the construction of a treaty, and what cases are and what are not in point of fact within it. This 'has been done in many instances of land titles which were dependent on or protected by treaties of cession ; and in such cases, questions which before were purely matters of legislative determination, become the subject of judicial cognizance. Sect. 27. Cases aflFecting ambassadors and other public ministers and consuls. — The words of the Constitution specify cases affecting public ministers, while in other instances they speak of controversies between specified parties. The contrast is ' Abb. Nat. Dig., title Treaties. fore given by the Government. Con- " But compare Wilson v. Wall (6 gress has no constitutional power to Wall., 83), where it is said that while settle the rights under treaties, except "construction given to the treaty by an in cases purely political. The con- executive officer should form a rule struotion of them is the peculiar for the subsequent conduct of the de- province of the judiciary, when a partment, it can not affect titles be- case shall arise between individuals." / 44 THE JUDICIAL ORGANIZATION. doubtless significant of a broader jurisdiction in the former case. Public ministers represent their sovereigns, and are, like their sovereigns, not amenable in general to our laws ; and hence a reasonable construction of this provision is, that if an action in a State court affects a foreign minister, although indirectly, it must be dismissed, not because he is a party to it, but because it affects him. This peculiar lan- guage was used in order to give the national courts jurisdic- tion over all cases by which such ministers were in any man- ner affected, whereas in the case of States and citizens in the specified categories, whose immediate or remote interests are involved in a multitude of cases, and may be affected in an almost infinite variety of ways, it was intended to give juris- diction in those cases only to which they are actual parties.' It is well settled, however, that a public prosecution insti- tuted and conducted by and in the name of the United States, for the purpose of vindicating the law of nations, and that of the United States, offended, as the indictment charges, in the person of a public minister, by an assault committed on him by a private individual, is not a case affecting the public min- ister within this provision of the Constitution. " It is [206J a case which affects the United States, and the individ- ual whom they seek to punish ; but one in which the minister himself, although he was the person injured by the assault, has no concern, either in the event of the prosecution or in the costs attending it." " ' Osborn «. Bank of the United The circuit courts have jurisdiction States, 9 Wheat. .^ 854. of suits against foreign consuls. ' United States ». Ortega, llTTAeai., Graham ». Stucken, 4 Blatchf., 50. 469. As to the extent of theprivilege The courts of the States have no of such officers, see Abb. Nat. Dig., jurisdiction of suits against foreign titles Ministers, and Consuls. consuls ; but they may take jurisdic- The following are decisions recently tiou of suits by them. Sagory ®. reported : The provision of section 9 Wissman, 2 Ben., 340. of the judiciary act of 1789, giving to In an action upon a contract in a the district courts jurisdiction of civil circuit court against a firm, the juris- fluits against consuls, is constitutional, diction of the court depended upon The original jurisdiction of cases af- the fact that one of the defendants was fecting ambassadors and consuls con- consul of a foreign power. The court ferred upon the Supreme Court by the found that the consul was not liable, Constitution, art.3, § 2, is not expressed but that one of the defendants, other as exclusive, and ought not to be so than the consul, vpith two other per- construed. Nor is there anything in sons who composed a former firm, the privileges accorded to consuls by were liable. Held, that the court the law of nations, to prevent Con- could not give judgment against such gress from conferring jurisdiction defendant, for want of jurisdiction, against them on a subordinate tribu- Bixby «. Janssen, 6 Blatchf., 315. nal. Sittings v. Cra^'forrl. Taney, 1. THE JUDICIAL POWER. 45 Sect. 28. Cases of admiralty and maritime jurisdiction. The Constitution declares ttiat the judicial power shall extend ' ' to all cases of admiralty and maritime jurisdiction;" and so far as civil rights are concerned, Congress, by the Judiciary Act, vested original jurisdiction in these cases, subject to certain limitations in the district and circuit courts, and appellate jurisdiction in the circuit and supreme courts. The Constitutional grant involves the adoption for the United States of the general body of what is known through- out civilized countries as the "maritime law," and/ its uni- form administration throughout the country, unembarrassed by State laws, through the instrumentality of tribunals pro- ceeding according to the general course of courts of admiralty. The idea is that those rights which the maritime law has usually protected and enforced, and those wrongs for which it has authorized redress, shall be enforced or remedied in the national courts. There shall not be, as to matters arising out of or closely connected with navigation and maritime com- merce among the different States, one rule of laws in one port and another elsewhere, varying with the legislation or views of jurisprudence in the State, but a uniform rule, and a uni- form administration.' The nature and the obligation in this country of the maritime law have been explained by Mr. Justice Bkadlet, in rendering the opinion of the Supreme Court in the recent case of the Lot- tawanna.' He says : It is hardly necessary to argue that the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. In this respect it is like international law or the laws of war, which have the effect of law in no country any further than they are accepted and received as such ; or, like the case of the civil law, which forms the basis of most European laws, but which has the force of law in each State only so far as it is adopted therein, and with such modifications as are deemed expedient. The adoption of the common law by the several States of this Union also presents an analogous case. It is the ' See Roberts ». Skolfleld, % Ware, but suspends, State law upon the sub- 184. While Congress, in the exercise ject, and when the act producing this of its power to regulate commerce result is repealed, or so modified as to between the States and foreign nations, permit the operation of the State law, can legislate upon that subject as well it becomes again valid and in force, in ports and harbors as on the high 1874, Henderson v. Spofford, 59 N. 7., seas, by so doing it does not repeal, 131. '31 WaU., 558, 571. 46 THE JUDICIAL ORGANIZATION. basis of all tlie State laws ; but it is modified as each sees fit. Perhaps the maritime law is more uniformly followed by com- mercial nations than the civil and common laws are by those who use them. But, like those laws, however fixed, definite, and beneficial the theoretical code of maritime law may be, it can have the effect of law in any country only so far as it is permitted to have. But the actual maritime law can hardly be said to have a fixed and definite form as to all the subjects which may be embraced within its scope. Whilst it is true; that the great mass of maritime law is the same in all com- mercial countries, yet in each country peculiarities exist as to some of the rules or the mode of enforcing them. Especially is this the case on the outside boundaries of the law, where it comes in contact with, or shades off into the local or muni- cipal law of the particular country, and affects only its own merchants or people in their relations to each other. Whereas in matters affecting the stranger or foreigner, the commonly received law of the whole commercial world is more assiduously observed— as, in justice, it should be. ISo one doubts that every nation may adopt its own mari- time code. France may adopt one ; England another ; the United States a third ; still, the commerce of the commercial world, bound together as it is by mutual relations of trade and intercourse, demands that in all essential things wherein those relations bring them in contact, there should be a uniform law founded on natural reason and justice. Hence the adoption by all commercial nations (our own included) of the general maritime law as the basis and groundwork of all their maritime regulations. But no nation regards itself as precluded from making occasional modifications suited to its locality and the genius of its own people and institutions, especially in matters that are of merely local and municipal consequence, and do not affect other nations. It will be found, therefore, that the maritime codes of France, England, Swe- den and other countries are not one and the same in every particular; but that whilst there is a general correspondence between them, arising from the fact that each adopts the essential principles and the great mass of the general maritime law as the basis of its system, there are varying shades of difference corresponding to the respective territories, climate, and genius of the people of each country respectively. Each State adopts the maritime law, not as a code having any , (: ), (' ) ■ 1 / TIfE JUDICIAL POWER. ' 'I, 47 independent, or interent force propria vigor e, but as its own law, with such modifications and qualifications as it sees fit. Thus adopted and thus qualified in each case, it becomes the maritime law of the particular nation that adopts it. And without such voluntary adoption it would not be law. And thus it happens that, from 'the general practice of commer- ^cial nations in making the same general law the basis and groundwork of their respective maritime sj'stems, the great mass of maritime law which is thus received by these nations in common, comes to be the common maritime law of the world. That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The gen- eral system of maritime law, which was familiar to the law- yers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend "to all cases of admiralty and maritime jurisdiction." But by what criterion are we to ascertain the precise limits of the law thus adopted ? The Constitution does not define it. It does not declare whether it was intended to embrace the entire maritime law as expounded in the treaties, or only the limited and restricted system which was received in England, or lastly, such modi- fication of both of these as was accepted and recognized as law in this country. Nor does the Constitution attempt to ■draw the boundary line between maritime law and local law ; nor does it lay down any criterion for ascertaining that boun- dary. It assumes that the meaning of the phrase "admir- alty and maritime jurisdiction " is well understood. It treats this matter as it does the cognate ones of common law and equity, when it speaks of " cases in law and equity," or of " suits at common law," without defining those terms, assum- ing them to be known and understood. One thing, however, is unquestionable ; the Constitution must have referred to a system of law co-extensive with, and operating uniformly in the whole country. It certainly could not have been. the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution arrived on all subjects of a commercial character affecting the intercourse of the States with each other, or with foreign States. 48 ' ^^HE JUDICIAL ORGANIZATION. To ascertain, therefore, what the maritime law of this, country is, it is not enough to read the French, German, Italian, and other foreign works on the subject, or the codes which they have framed, but we must have regard to our own legal history, constitution, legislation, usages, and adjudica- tions as well. The decisions of the Supreme Court i^ustrative of these sources, and giving construction to the laws and Constitution, are especially to be considered ; and when these fail us we must resort to the principles by which they have been governed. But we must always remember that the court cannot make the law ; it can only declare it. If within its proper scope any change is desired in its rules other than those of procedure, it must be made by the legislative depart- ment. With respect to the localities, or in other words the char- acter and extent of the waters which are to be deemed em- braced within the American admiralty jurisdiction, it is impor- tant to understand that in the earlier period of our history, when the commerce on the great rivers of the West and the lakes was in its infancy, and the great bulk of the maritime causes were those arising upon the Atlantic coast, the courts of the United States naturally adopted the English definitions of public rivers and the boundaries of admiralty jurisdiction, and measured that jurisdiction by tide-waters. But in later years, with the vast growth of internal commerce, this rule has been reconsidered ; and it is now settled that the admir- alty and maritime jurisdiction in this country is not to be limited, as in England, to tidal waters, but extends to lakes and the waters connecting them, and is dependent upon the navigable character of the water, and not upon the ebb and flow of the tide. This new definition of admiralty jurisdic- tion will be the subject of more extended explanations in a subsequent chapter.' The grant of jurisdiction in all admiralty and maritime cases does not extend to a cession of the waters themselves in which these cases may arise, or of general jurisdiction over the same. Congress may pass all laws for giving the neces- sary effect to the exercise of the admiralty and maritime jurisdiction granted to the government of the Union ; but the general jurisdiction over the place, subject to this grant, ^Poit, Book n., Oh. 1. THE JUDICIAL POWErI ' ' ': 4;j adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation still remain in the States, and the giving of this power to Congress does not divest the State jurisdiction of crimes.' Thus, the power to regulate the fisheries belonging to the several States, and to punish those who should transgress those regulations, was exclusively vested in the States, respectively, at the time when the present Constitution was adopted, and was not surrendered to the United States by the.mere grant [207] of admiralty and maritime jurisdiction." With respect to crimes which may be recognized by and punishable under the maritime law, the grant of jurisdiction by Congress to the district courts is not as unrestricted as the grant of civil jurisdiction. Those courts have "cogni- zance of all crimes and offences that shall be cognizable under the authol-ity of the United States." They, the Fed- eral courts of inferior jurisdiction, cannot take cognizance of criminal offences of any grade, without the express appoint- ment or direction of positive law. To enable them to exercise the functions bestowed by the Constitution over crimes and misdemeanors, there must be a designation by positive law, both of the offence and of the tribunal which shall take cognizance of it." Sect. 29. Controversies to which the TJnited States are a party. — ^We now come to those classes of cases in which the exer- cise of judicial power is made dependent upon the character, citizenship, or residence of the parties. Ordinarily, where the jurisdiction depends upon the char- acter or residence of parties, it is the party named as such upon the record, who is regarded, and not one who is merely interested in the controversy ; and when a joint interest is prosecuted, each individual named as a party plaintiff must be entitled to invoke the jurisdiction of the court.* In general, the United States have the same civil remedies that individuals have." But they are not subject to the pro- cess of the courts, as individuals are. The Government is not liable to be sued, except with its own consent given by law. The courts have not power to command the withdrawal of * United States ». Bevans, 3 Wheat., 433. 336. ' A^. Nat. Big., title Jtjkisdiction, » Oorfield®. Coryell, 4 Fas^. 0. Ct., 81, 83. 371. ° United States v. Ames, 1 Woodb. . Jolly, tions have been held binding upon 18 Bow., 503. See, also, Denieiitt v. the National courts. Tioga R. R. Co. Exchange Bank, 10 Law Mep., N. S., ®. Blossburg, &c., 30 Wall, 137. S06. THE JUDICIAL POWER. 79 bill. "The general commercial law," sqid Mr. Justice Dan lEL, in delivering the opinion of the court in that case, "being circumscribed within no local limits, nor committed for its administration to any peculiar jurisdiction, and the Constitu- tion and laws of the United States having conferred upon the citizens of the several States, and upon aliens, the power or privilege of litigating and enforcing their rights acquired under and defined by that general commercial law, before the judicial tribunals of the United States, it must follow by regular con- sequence that any State law or regulation, the effect of which would be to impair the rights thus secured or to divest the Federal Courts of cognizance thereof, in their fullest accepta- tion under the commercial law, must be nugatory and unavail- ing. The statute of Mississippi" (which was under considera- tion), " so far as it may be understood to deny or in any degree to impair the right of a non-resident holder of a bill of exchange, immediately after presentment to, and refusal to accept by, the drawee, and after protest and notice to resort forthwith to the courts of the United States by suit upon such bill, must be regarded as wholly without authority, and inoperative. The same want of authority may be affirmed of a provision in the statute which would seek to render the right of recovery by the holder, after regular presentment and protest, and notice, for non-acceptance, dependent upon proof of subsequent presentment, protest, and notice, for non-pay- ment. " A requisition like this would be a violation of the gen- eral commercial law, which a State would have no power to impose, and which the courts of the United [234] States would be bound to disregard." So, too, although in some cases a State statute creating or securing a right may thus be given effect in a court of the United States, a statute restricting rights of an equitable nature, which in its terms relates only to proceedings in the courts of the State, will not be applied by the courts of the United States ; for they administer a general equity jurisdic- tion, and do not limit or control it according to State legisla- tion. Thus, the objection that a tender has not been made upon a mortgage, preliminary to a bill to redeem, in the man- ner required by a State statute regulating such bills in the State courts, is not available to defeat such a bill in the courts of the United States. Nor does the fact that by the local law BO THE JUDICIAL ORGANIZATION. there is a sufficient remedy at law, avail to defeat the usual equitable remedies in the courts of the United States." Questions of set-off in the Federal courts arise exclusively under the A cts of Congress, and no local law or usage can have any influence in their determination.' But where, in proceed- ings in State courts, the laws of a State allow a set-off pleaded to be interposed and tried in the same suit with the claim against which it is pleaded, the same thing may be done when the suit is brought or transferred into the Federal courts from them.' The decisions of the State courts, in so far as they settle rules of property, are uniformly respected by the Supreme Court of the United States.* Thus the ^ect of a judgment in ejectment is a rule of property which the local law con- trols.' So the question whether an unincorporated association is capable of taking by will must be determined in the National courts, according to the laws of the State in which the admin- istration lies, as ascertained from the decisions of the highest State court ; it depends upon every State to determine for itself to whom and by what instrument property within its borders may pass." But a State law prescribing rules of practice has no efficacy in the courts of the United States ; such rules can only be made operative in the National courts by being adopted by a rule of those courts.' Hence, when the effect of a State decision is only to regulate the practice of courts, and to determine what constitutes a judgment, the Supreme Court do not consider themselves bound by such decisions, upon the ground that 'Gordon o. Hobart, 3 8limn., 401. 759. The fact that a State statute has ' Partridge v. The Insurance Corn- provided a remedy at law against a pany, 15 TFaW., 573. fraudulent judgment doesnotpreclude ' Meade ». Beale, Taney, 339, 359. the judgment debtor from a resort to 'Miles v. Caldwell, 2 Wall., 35. the Equity Courts of the United States ° So held in a case where the for relief against it. Noyes v. Willard, Supreme Court of California had con- 1 WooAi, 187. strued the terms "tide lands," used The "claim law " of Georgia, so far in a statute of that State as applying as the same applies to real estate, pro- only to lands covered and uncovered Tides for equitable relief. It is, there- by the tides, and as not including fore, a remedy which cannot be admin- lands permanently submerged by the istered in the Federal courts, and is waters of the Bay of San Francisco, not prescribed to be used therein by Walker v. State Harbor Commission- theAct of June 1, 1873 (17 8tat. at ers, 17 Wall., 648; Supervisors e. L., 197), " to further the administra- United States, 18 Id., 71. tion of justice." Hall o. Mining Co., 'Mayor v. Lord, 9 WaU., 409; 1 WooAs, 544. United States a. Collins, 18 Int. Bee. ' Watkins v. United States, 9 Wall., Bee, 69. THE JUDICIAL POWER. 81 the laws upon which they are made are local in their character. It is the duty of the Supreme Court to preserve by its decisions the supremacy of the laws of the United States, which cannot be done without disregarding all State laws and decisions which would conflict with them.' Sect. 49. The statute making State laws a rule of decision. — The principle, that the courts of the United States are to admin- ister the local laws of the States in which they sit, in respect to the rights of parties and the correlative remedies, except where they conflict with the written or unwritten law of the Union, flows from the very nature of theif jurisdiction, as we have in outline explained it. But at the time of the organi- zation of these courts, and probably to guard against the apprehension that they might assert the power of devel- [235] oping and administering an independent system of juris- prudence, it was enacted' that the laws of the several States, except where the Constitution, treaties, or statutes of the United States should otherwise require or provide, should be regarded as rules of decision in trials at common law in the courts of the United States in cases where they apply. This statute, which is expressly made applicable only to the common law branches of the court, and seems to be under- stood as not applying to criminal causes, is, however, regarded as applicable, not only in actions at law strictly so called, but in special statutory proceedings of a legal, as dis- tinguished from an equitable character, such as a partition of lands, on a petition, between tenants in common," and a statu- tory petition for a new trial after default.* The application of this statute is not confined to the State laws which were in force at the time of its enactment in 1789." It draws into application all the laws which affect the right in litigation at the trial, which prescribe the rules of evidence nec- essarily incidental to the protection of such rights, and which declare the rule for the judgment to, be rendered, so far as these matters are subjects of internal police or State regula- tion over which the people have delegated no power to the Federal Grovernment, and on which the States can legislate in any manner, and to any extent not prohibited by their Consti- tutions or by the Constitution of the United States. • Amis «. Smith, 16 Pet., 303. ' Clark v. Sohier, 1 Woodb. & M., » By section 84 of the Judiciary Act 368. of 1789. Bev.-Stat., § 721. ° Thompson v. Phillips, 1 Baldw., ' Exp. Biddle, 3 Mass., 473. 346. 6 82 THE JUDICIAL ORGANIZATION. The object of this statute was to make the rules of decis- ions in the courts of the United States the same with those of the States, taking care to preserve the rights of the United States by the exceptions expressed in the reference to the laws of the Union ; and justice to the citizens of the several States required this to be done/ The Act includes the laws in rela- tion to evidence, as well as the laws in relation to property.' "Indeed," said Chief Justice Tanet, in delivering the opin- ion of the court in the case just cited, "it would be difficult to make the laws of the State in relation to the rights of property the rule of decision in the Circuit Courts without associating with them the laws of the same State, pre- [236] scribing the rules of evidence by which the rights of property must be decided. How could the courts of the United States decide whether property has been legally transferred unless they resorted to the laws of a State to ascertain by what evidence the transfer must be established \ In some cases the laws of the States require written evidence ; in others they dispense with it, and permit the party to prove his case by parol testimony ; and what rule of evidence could the courts of the United States adopt to decide a question of property but the rule which the legislature of the State has prescribed?" But the enactment does not apply to questions of a general nature, not based on any local statute or usage or rule affect- ing title to land, or principle which has become a rule of prop- erty.' Sect. 50. Limits upon the appliQation of the statute. — ^Two important restrictions upon the application of this statute are to be observed. First. It has no relation to matters of practice and proced- ure. The extent to which the courts of the United States are bound by the methods of procedure in force in the various States depends upon a different class of statutory proceed- ings, which will be noticed in another place. It is sufficient here to point out that the true exposition of the Act is that it makes the local rules of law relative to the rights of persons and the title to property, as settled in the several States, guides of the courts of the United States in the determination of controversies depending before such courts. It constitutes • McNiel n Holbrook, 13 Pet., 84. ' Boyce ». Tabb, 18 Wall., 546. ' Fowler v. Hooker, 4 Blatchf„ 426. THE JUDICIAL POWER. 83 a rule of decision, and relates to the ends of justice, not a rule of procedure relating merely to the means of enforcing jus- tice." It does not make the local law a guide to the adminis- trative officers of the CJnited States courts ; and since it does not apply to their acts it does not even make the local law a rule of decision when the validity of such administrative acts is drawn in question for determination by the courts .of the United States." Second. This statute does not preclude the courts of the United States from determining causes upon their own judgment, adversely to rules adhered to by the local [237] courts, on questions of commercial or general law, which are not determinable in any given case by any positive stat- ute or strictly local usage. The word " laws," in this section, is not regarded as including within its scope decisions of local or State tribunals upon general principles of law. " The laws of a State," said Mr. Justice Stoet,' "are more usually understood to mean the rules and enactments promulgated by the legislative authority thereiof, or long-established local customs having the force of laws. In all the various cases which have hitherto come before us for decision, this court have uniformly supposed that the true interpretation of the thirty-fourth section limited its application to State laws strictly local, that is to say, to the positive statutes of the State, and construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as rights and titles to real estate, and other matters ' It was held in United States ». of commerce, and the general principles Wonson (1 Qall., 5), that the statute of commercial law, where the State did not authorize the Circuit Court to court does not decide the case upon re-try with a jury a cause brought up any particular law of the State, or es- by appeal from the District Court, al- tablished usage, but upon the general though by the laws of the State in principles of commercial law, if it which the court was sitting, the party falls into error, that erroneous de- Iraight be entitled to hare a re-trial in cision is not regarded as conclusive such a manner ; for this was regarded evidence of the commercial law of by the court as a matter of procedure the State, and will not be followed as not within the Act. But in the case of such by the Supreme Court. And the Clark ». Sohier (1 Woodb. & M., 368) reason ia. the State court does not decide it was held that a State statute giving in such cases upon the peculiar laws and a right to new trial after default, if, institutions of the State. Its decision, not inconsistent with any Acts of Con- therefore, is no evidence that any law gress, was made applicable by this has been adopted by the State in con- statute, flict with the general principles which ° Wayman b. Southard, 10 Wheat., 1. regulate commercial contracts through- ' Swift ». Tyson, 16 Pet., 1. out the commercial world. Meade a. In cases depending upon the usage Beale, Taney, 339, 359. 84 THE JUDICIAL ORGANIZATION. immovable and intra territorial in their nature and character. It never has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instru- ments, and especially to questions of general commercial laW, where the State tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general rea- soning and analogies what is the true exposition of the con- tract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding, that this sec- tion, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court ; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed." [238] This rule was re-asserted in Watson x. Tarpley ; ' and it seems to be applicable to any case in which pri- vate rights are to be determined by the application of common law rules alone." It has, accordingly, been held, that upon such questions as the validity, construction, or interpretation of contracts, and even the interpretation of wills as to matter and language belonging to the corninon law, and not determined by local statutes, the courts of the United States will follow their own convictions in the light of principles and precedents rather" than the course of adjudication of the courts of the particular State in which the question may have arisen, unless, indeed, the case be a question of title which has been so settled as to become a rule of property ; ' or, perhaps, if the question be ' 18 flow., 517, referred to § 49, ante. ' See cases in Ml. Nat. Dig., title " Chicago City s. Bobbins, 3 Blade, Coubts. 418. THE JUDICIAL POWER. 85 "upon a transaction had on the faith of such a local course of •decision. For a local usage may have the force of a law within the meaning of this act, and if its existence is made out it may control the case. Yet the courts of the United States will not regard a decision of a State court, purporting to be based on the consideration of general principles of com- mercial law, as establishing a local usage which binds their •decision. ' In the case of Township of Pine Grrove v. Talcott (19 Wall.., 669), where the question involved was as to the validity of bonds issued in negotiable form by a township in Michigan, and held by a citizen of another State, claiming protection as a l)ona fide pui'chaser for value, the Supreme Court held that such bonds being commercial securities, their validity belonged to the domain of general jurisprudence, and declined to be bound by a decision of the State court which was deemed ,unsatisfactory.'' Sect. 51. Construction of State laws. — In the application of the statute above referred to, the courts of the United States, as a general' rule, follow the decisions of the courts of last resort; of the State in question in respect to the construction and application of the local laws.' This duty is founded upon the principle universally recognized, that the judicial depart- ment of any Government is the appropriate organ for constru- ing the legislative acts of that Grovernment. The laws of any State are to be read and understood as they are interpreted by the courts of that State. This interpretation is the.appropri- ate duty of those courts ; and courts of a different jurisdiction properly feel great reluctance in breaking the way in the explanation of such statutes in any case where there is not a ' Grloucester Ins. Co. «. Younger, obligatory on the Supreme Court. ■2 Curt. C. Ot., 333. Olcott v. Supervisors, 16 Wall, 678. '^ For the views of the Circuit Court, The effect -which the statute of on the questions involved in this case, Massachusetts prohibiting work on including a very elaborate citation Sunday shall have on the rights of of authorities, see 6 J.54.iV«t 2)igr., 116, parties in a collision case pending in 190. the District Court, one of whom has ' For numerous cases upon these violated the act, is not a question of rules as to the construction of State construction, but of its application, statutes, see Abb. Nat. Dig., title and the District Court must follow the Courts; StaTutus. decisions of the Supi-eme Court of the The decision of a State court on a United, States, and not those of the ■question whether or not the construe- State tribunals. Sawyer v. Oalsman, tion and maintenance of a railroad is 1 Loio., 134 A matter of sufficient public interest Blossburg, &c., R. Rj Co. ®. Tioga to warrant taxation in aid of it, is not R. R. Co., 5 Blatc/if., 387 ; Smith v. Shriver, 3 Wall. Jr. C. Ct., 319. 86 THE JUDICIAL ORGANIZATION. clear necessity to do so in order to come to a decision. Where the decisions of the courts of the State, upon the construction of a State statute, differ, the courts of the United States will, in general, follow the latest decision. And where the [239] courts of last resort of a State re-consider their own doc- trines, and adopt a different construction from that which they have previously asserted, the courts of the United States will, in subsequent cases, follow the later adjudica- tion. This, however, will not be done to the prejudice of transactions had upon the faith of a former settled construc- tion, at a time when it had the complete sanction of the State Government ;' nor will an appellate court of the United States reverse a judgment which was correct at the time that it was rendered, because of such a change subsequently made in thef interpretation of the law by the State courts. [240] The general rule, therefore, in respect to the con- struction of State statutes, may be expressed thus: The courts of the United States look to the several States as the appropriate and authoritative expounders of the legislation of their respective Q-overnments ; and whenever the courts of a State judicially settle the construction of a statute, the courts of the United States are bound thereby, and will give effect to such statute accordingly, saving, however, vested interests from being prejudiced by changes of construction. But in cases of conflict or fluctuation in the opinions of the State courts the Supreme Court will interpret the statute by their own judgment. Likewise, whether the legislature of a State has authority under the Constitution of the State to pass a particulai* stat- ute, what is the true interpretation of any statute passed by it for a purpose specified, and what acts will be justified under the statute, are matters ■ which lie exclusively within the determination of the highest court of the State." The decision of the highest court in a State, as to whether an Act of the legislature is in violation of the State Constitution, is, in gen- eral, conclusive in the National courts." If the question has not been decided in the State courts then the duty of con- struction devolves upon the National tribunal.* The Supreme Court of the United States, however, regard ' If a contract, when made, was v. Supervisors, 16 TTaK., 678. valid under the laws of a Stale, no " Aicardi «. State, 19 yfaU., 635. subsequent judicial or legislative ' Gut n. State, 9 Wall.^ 35, 1871; action will be regarded by the court King v. Wilson, 1 Dill., 555. as establishing its invalidity. Olcott ' Loring v. Marsh, 2 Oliff., 469. THE JUDICIAL POWER. 87 the decis'ons of the State courts upon questions of statutory- construction in the same light as other jadicial opinions, and do not feel bound by any such opinion unless the case called for its expression. If the construction given by a State court to a State statute was not needful for the ascertaining of the right or title in question between the parties, it will not be regarded as determining the question of construction as a rule of decision for the Supreme Court.' Sect. 52. Incidental powers of the judiciary. — An outline of the judicial power of the United States would be incomplete without some mention of those incidental powers which are necessary to make efficacious the judicial function of determin- ing controversies. The Constitution confers upon Congress the authority to make all laws which shall be necessary and ' Carroll v. Carroll, 16 Em., 275. Mr. Justice Gkibr, in the case of Pease •». Peck (18 How., 595), used the following language : "Many dicta are to be found in oifr decisions averring that the courts of the United States are bound to follow the decis- ions of the State courts on the con- struction of their own laws. But although this may be a correct, yet a rather strong, expression of a general rule, it can not be received as the enunciation of a maxim of universal application. Accordingly, our re- ports furnish many cases of exceptions to it. In all cases where there is a settled construction of the laws of a State, by its highest judicature, estab- lished by admitted precedent, it is the practice of the courts of the United States to receive and adopt it without criticism or further inquiry. But when this court have first decided a question arising under State laws we do not feel bound to surrender our convictions on account of a contrary subsequent decision of a State court, as in the case ' of Rowan «. Runnels (5 How., 139). When the decisions of the State court are not consistent we do not feel bound to follow the last, if it is contrary to our own con- victions — and much more is this the case where, after a long cause of con- sistent decisions, some new light sud- denly springs up, or an excited pub- lic opinion has elicited new doctrines, subversive of former safe precedent. Cases may exist, also, where a cause is got up in a State court for the very purpose of anticipating our decision of a question' known to be pending, in this court. Nor do we feel bound, in any case in which a point is first raised in the courts of the United States, and has been decided in a Circuit court, to reverse that decision contrary to our own convictions, in order to conform to a State decision made in the meantime. Such decis- ions have not the character of estab- lished precedent declarative of the settled law of a State. " Parties who, by the Constitution and laws of the United States, hive a right to have their coiftroversies de- cided in their tribunals, have a right to demand the unbiased judgment of the court. The theory upon which jurisdiction is conferred on the courts of the United States, in controversies between citizens of different States, has its foundation in the supposition that, possibly, the State tribunal rpight not be impartial between their own, citizens and foreigners." The rule is not applied by the Supreme Court in construing statutes prescribing the remedies of creditors. In construing those the National court may follow its own judgment. Butz v. Muscatine, 8 Wall., 575. But wliere a State court had held to be valid assignments, by debtors, with preference of creditors, made under a State law sanctioning such proceedings, it was Tield that the Cir- cuit Court would follow the rule estab- lished by the State court. Parker n. Phetteplace, 3 Oliff., 70. 88 THE JUDICIAL ORGANIZATION. proper for carrying into execution the express powers vested by the Constitution in any department of the Grovernment ; and this necessarily includes authority to make laws for carrying into execution all the judgments which the judicial depart- ment have power to pronounce.' But apart from this express grant the authority is involved by implication in the very nature of judicial power. The judicial power would be incomplete, and entirely inadequate to the purposes for which it was intended if, after judgment, it could be arrested in its progress, and denied the right of enforcing satisfaction in any manner prescribed by the laws of the United States. The authority to carry into complete effect the judgments of the courts necessarily results, by implication, from the power to ordain and establish such courts.' Independently of any statute it is a power which esssen- tially belongs to every court, to superintend the con- [241] duct of its officers, and to see by what authority they act, and to see that its process is not vexatiously employed.' And the courts of the United States, under their inherent powers and the right to regulate their own process, , possess ample authority to supervise the conduct of their professional and administrative officers, to prescribe rules in relation to the collection and disposition of moneys obtained under their process or orders, and the like, and to compel the observance of such orders and rules by attachment.* Sect. 5S. Eecapitulation. — In this description of the judi- cial power of the United States we have not sought to open and discuss those constitutional questions which may^ be regarded as not yet fully settled ; nor to dwell at great length upon those settled principles of constitutional law which, though of great importance, are rarely drawn into application at the bar. With the less ambitious, but perhaps not less important, purpose, we have inquired what, practically, are '■Wayman ». Southard, 10 Wheat. ^ 1. subject-matter being involved, it may " Bank of United States u. Halstead, go on to decide other matters which 10 Whmt., 51. of themselves would not afford ground 'King of Spain «. Oliver, 3 Wash, for the original exercise of jurisdic- C. Ot.,_ 439. tion, see Brooks v. Stolley, 3 Mc- * United States «. The Lawrence, 7 Lean, 533, 539; Warner v. Daniels, N. Y. Leg. Obs., 174. 1 Wcodi. & M., 90; Hepburn v. Dun- Por cases where the courts of the lop, 1 Wheat., 178, 197; Livingstone. United States have applied the rule Van Ingen, 1 Paine, 45; S. C, 4 that where a court has obtained WalPa Am. Law J., 56. jurisdiction by reason of a particular THE JUDICIAL POWER. 89 the limits of the National jurisdiction. We have examined the nature of judicial power, and have seen that it consists solely in the authority to determine rights of person or prop- erty, by arbitrating between adversaries, in specific controver- sies, at the iustance of a party thereto ; that it cannot be exer- cised unless invoked, and cannot be invoked except for the ' determination of such a controversy between adverse interests. We have seen that the judicial power of the United States is founded in the Constitution, and cannot transcend the limits marked out by that instrument ; that within those liinits it is established, and its exercise restricted and regulated by Acts of Congress ; and that the peculiar and complex scope of this pbwer is the natural correlative of the complex and peculiar political organization of the American government. That although the exercise of the judicial power of the United States is, apparently, in a very few cases [242] entrusted to State tribunals, it devolves as matter of judicial duty only upon the courts of the United States established by the Constitution, and the Acts of Congress in pursuance thereof ; that the National courts, and the State courts, each in their appropriate field of jurisdiction, are independent of the other ; and that where there is a concur- rent jurisdiction, the proceedings and determinations of the ■courts of either class are not subject to interference or to revision by the courts of the other class, except only in three methods of appeal or error, the removal of causes, and habeas corpus, methods which are explicitly defined by the Acts of Congress, and by which, in appropriate cases, questions arising in the State courts that are within the judicial power of the National tribunals, may be drawn thither from the State courts for determination. We have seen, too, that the establishment of these courts did not aim at the establishment of a separate system of jurisprudence from that administered by the local tribunalp, except so far as the local laws might be out of harmony with the laws of the Union, but that in all indifferent matters the courts of the United States, when determining individual rights, administer the positive local laws applicable thereto, and, with due deference also to local judicial opinion, apply the generally recognized rules of com- mercial and common law and equity which go to make up the jurisprudence of the country. And lastly, we have seen 90 THE JUDICIAL ORGANIZATION. that the authority conferred upon the judiciary of the United States, although for the most part explicitly defined by positive enactment, draws vsith it by necessary implication that incidental administrative power, some degree of which is essential to the efficacy of any system of judicial tribu- nals. CHAPTER III. GEIJfEEAL PLAN OF THE COURTS. The Constitution, as we have seen, declares that the judi- cial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish ; and by another section authorizes Congress to constitute tribunals inferior to the Supreme Court. Sect. 54. The tribunals, and their relation. — ^^Oongress has pro- vided for the exercise of this judicial power. Mrst, By the organization of the Supreme Court, whose chief function is the exercise of an appellate and supervisory jurisdiction by appeals, writs of error, mandamus, &c., over the other tribunals of the United States, and, in certain cases, over the courts of last resort of the several States, but which also has original jurisdiction in certain controversies to which States, public ministers, and the like, are parties ; Second, By creating Circuit Courts, the States of the Union being grouped together in nine circuits for this purpose, in each of which its Circuit Court exercises an original juris- diction at law and in equity, and an appellate jurisdiction over the District Courts ; Third, By the creation of District Courts in the numerous districts in which the States of the Union are arranged or divided for this purpose ; and in these District Courts is vested jurisdiction in cases of admiralty and maritime [244] nature, and in cases of seizures under laws of impost, navigation, or trade, and in suits for penalties and forfeitures under the laws of the United States, and also, concurrently 92 THE JUDICIAL ORGANIZATION. with other courts, of crimes and offences not capital,, of suits at common law where the United States sue, and exclusive jurisdiction of suits against consuls or vice-consuls, except for capital offences. Fourth, By creating the Court of Claims, which has juris- diction to investigate and determine claims against the G-ov- ernment, founded upon any Act of Congress or regulation of the Executive Department, or any contract witn the Grovern- ment, and cross- claims or offsets in favor of the Government against any such claimant. The single subject of impeachment is otherwise provided for by the Constitution itself, which makes the Senate the tri- bunal for the trial of such cases. These tribunals constitute the general judicial system of the United States, and upon them the exercise of the judicial power defined by the Constitution is devolved. There are, besides these, local tribunals in the Territories and the Dis- trict of Columbia, which have been created by Congress in virtue of its general legislative power over territory belonging to the Union, but most of which are of a transient nature, hav- ing their existence assured only by the temporary necessities of communities which are destined in time to become States, and to form their own local tribunals. From a very early period in the history of the Govern- ment the Circuit Courts were held by the judges of the Supreme Court in the intermissions of that tribunal, each judge sitting in his circuit, usually together with the judge of the District Court for the district in which the Circuit Court was held. From this it resulted that the determinations of the Circuit Courts were generally made by the concurrence of one mem- ber of the Supreme Court, which tribunal has an appellate 'jurisdiction over the decisions of all the circuits. The Act of April 10, 1869," entitled " An Act to amend the Judicial [245] System of the United States," has modified this system. As continued in force in the Revised Statutes, Hhis en- actment provides that for each circuit there shall be appointed a circuit judge, who shall have the same power and jurisdic- tion therein as the justice of the Supreme Court allotted to the circuit. Every circuit judge shall reside within his cir- cuit. But the system of allotting the justices of the Supreme ^Rm. Stat., §607. GENEE^AL PLAN OF THE COURTS. 93 Court among the circuits is continued, and the authority and duty of each of those justices to attend at least one term of the Circuit Court in each district of his circuit, during every period of two years, is expressly declared. ' Thus this statute, while increasing the judicial force of the Circuit Courts, preserves the same general connection between these courts and the Supreme Court. The district judge of each district usually or often sits with the circuit judge Or the judge of the Supreme Court, in holding the Circuit Court within his district, but in case of a difference between them, the opinion of the circuit judge pre- vails (except to authorize imprisonment or punishment), unless either party to the controversy obtains, as he may, the opinion of the Supreme Court upon the point, by [246] causing the question on which the judges are opposed, to be certified to that court for determination.' Sect. 55. Rules of court. — The Supreme Court is empowered (by R&G. Stat., § 917), to prescribe from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining discovery, of proceedings to obtain relief, of dr^awing up, entering, and enrolling decrees, and of proceedings before trustees appointed by the court, and generally to regulate the whole practice to be used in suits in equity or admiralty by the Circuit and District Courts. The general object is to enable the Supreme Court to regulate the whole practice of these other courts so as to prevent delays and expense in litigation. The Supreme Court is also authorized to make general orders for regulating the practice and procedure of the District Courts in Bankruptcy. Under this authority the Supreme Court have prescribed rules, not only for procedure at its own bar, but also for pro- cedure in the Courts of Equity of the United States, and for the instance side of the courts of admiralty and maritime jurisdiction, and for the courts and officers of bankruptcy." The Supreme Court cannot, under this power to prescribe rules, enlarge or diminish the jurisdiction of the inferior courts of the United States, but may, nevertheless, permit or 'Ibid., § 7l0. (a) An extended abridgment of " Abb. Nat. Dig., title Casks Cekti- these rules will be given in Book VI. PIED. 94 THE JUDICIAL ORGANIZATION. forbid the use of certain process or remedies in the exercise of their jurisdiction.' Further, the several Circuit and District courts are authorized (by Ren. Stat, % 918) from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court, to make rules and orders directing the returning of writs and process, the filing of pleadings, the taking of rules, the enter- ing and making up of judgments by default, and other mat- ters in vacation, and otherwise to regulate their own practice as may be necessary or convenient for the advancement of justice and the prevention of delays in proceedings.' Each of the several Circuit and District Courts throughout the country generally has framed and adopted such a body of rules for itself, in addition to the series of rules prescribed by the Supreme Court as above stated for all the courts of each class. The effect of these rules in shaping the course of pro- cedure will be more fully considered hereafter. [247] Sect. 56. In what sense the jurisdiction of the United States courts is inferior. — Under this system the Circuit and Dis- trict Courts are inferior courts in the sense that their judg- ments are usually subject to the revision of a superior tribunal. When a cause has been thus reviewed by the Supreme Court, the inferior courts can only execute the mandate of that court. They have no power to disturb its decrees, and can only settle what by the terms of the mandate remains to be done.* , But these courts are not "inferior" in the technical sense of that term. The distinction between courts of original and general jurisdiction over any particular subject and courts of special and limited jurisdiction, is this : The former are com- petent by their Constitution to decide upon their own jurisdic- tion, and to exercise it to a final judgment, without setting forth in their proceedings the facts and evidence upon which it is rendered. Their records import absolute verity,' and can- not be impugned by averment or proof to the contrary ; there can be no judicial inspection behind the judgment save by appellate power. The latter are so constituted that their ■ The St. Lawrence, 1 Blachy 522. ship Co., 6 Ben., 124. See also, on the extent of the power ^ See also Rev. 8tat., § 913. to make the rules, Nos. 55-58 In "Chaires v. United States, 3 Eow.f admiralty, ije Providence, &c., Steam- 611. GENERAL PLAN OF THE COURTS. 95 judgments may be looked through, for the facts and evidence necessary to sustain them ; their decisions do not furnish evi- dence of themselves to show jurisdiction and its lawful exer- cise ; every requisite for either must appear upon the face of their proceediugs, or they are nullities.' Although the courts of the United States are wholly the creatures of statute, and are courts of limited jurisdiction, so that their proceedings are erroneous if the jurisdiction be not shown upoij them, and judgments rendered in such cases may be reversed, yet their proceedings are not nullities which may be entirely disregarded if the jurisdictional facts are not shown therein.* Apart from the specific question of the quality of the parties or nature of the controversy, they are to be deemed, in respect to the force and effect of their judgments and decrees, as standing upon the same footing as courts of general juris- diction. If the jurisdictional facts do not appear upon their records, their judgments and decrees may be re-examined in due course of procedure for that purpose. But such defect does not make them nullities which may be disregarded in a collateral proceeding,' as is the case with those courts, [248] of limited and special jurisdiction which are dependent for the Validity of every step upon the statute authority. And when jurisdiction is apparent upon the record, regu- larity of procedure is to be inferred in support of the judg- ment.* Sect. 57. local character of the jurisdiction. — The process of the Circuit and District Courts is, in general, restricted to the territorial limits within which they are placed.' It is only where they are specially authorized by Act of Congress that they can execute their process without those limits.' By the Judiciary Act, under which the courts of the United States were first organized, it was provided that no civil suit should be brought before either Circuit or District Courts against an inhabitant of the United States, by original process, in any other district than that of which he was an ' Grignou B. Aster, 3 Row., 319, 341. Id., 586. " mep. Watkins, Z Pet., 193. 'Griswold v. Sedgwick, 1 'Ruckman v. Cowell, 1 N. 7. (1 137. Comst.), 505 ; Chemung Canal Bank ' Wilson v. Graham, 4 Wash. O. Ot,, «. Judson, 8 N'. T. (4 Seld.), 354 ; 53 ; United States v. Alberty, Eempat., McCormi'ck «. SuUivant, 10 Wheat., 444. 193; Kennedy ®. Georjjia State Bank, 'Map. Graham, 3 Wash, 0. Ot., 8 How., 586; Huff«. Hutcbinson, 14 456. 96 THE JUDICIAL ORGANIZATION. inhabitant, or in which, he was to be found at the time of serving the writ. ' The obiect of this provision was that no judgment should be rendered by these courts against any defendant who had not been served with process issued against his person from a court in the district of his residence, or a district where he was then present, unless the defendant, by entering his appearance to the suit, should waive the objection that he was proceeded against in another court." . This prohibition has been adjudged not to take away the- civil jurisdiction over causes which were otherwise within the jurisdiction of the courts. It is a personal privilege of a defendant who is sued out of his district, and he must plead it if he would avail himself of it." And an appearance by the defendant, and answering generally, without objection, has always been considered to be a waiver.' So, also, an appearance alone, and omission to plead [249] or otherwise to insist upon this privilege untU a subsequent term, has been held to be a waiver of it." The restriction which is imposed by this statute upon the suitor' s selection of a court applies not only in cases in which the jurisdiction depends on citizenship, but as well where the action is founded on on Act of Congress." Although this Act relates by its terms only to original process, "it is well understood," says CoiirKLiJsrG, "that no process whatever issued from the Circuit or District Courts can be legally executed without the limits of the judicial dis- trict in which it is issued, unless Congress expressly aut^ior- ize it to be done." ' Sect. 58. Provisions dispensing with absent parties. — The obsta- cles to proceedings in the courts of the United States in cases which were within their jurisdiction, resulting from these restrictions, were, in a measure, removed by the Act of Feb- ruary 28, 1839,° which authorized any court of the United States, in an action where there are several defendants, to entertain jurisdiction and proceed therein between the parties ■ Act of Sept. 34, 1789, § 11. See «. Palmer, 8 Wheat., 699. the enactment continued, with excep- ' Flanders u. jEtna Ins. Co., 3 Mms., tions of certain specified cases. Bev. 158; Harrison v. Rowan, Pef. (7. Ci., atat., § 739. 489. '' Levy ®. Fitzpatricb, 15 Pet., 167. ' Chaffee ®. Hayward, 20 How., 208. 'Teesee. Phelps, JfcA?;., 17. '' Conklingh Treatise, 139; Ei^. * Pollard V. Dwight, 4 Oranch, 421; Graham, 3 Wash. 0. Ot., 456. Logan V. Patrick, 5 Id., 288; Grade » Be-v. Stat., § 737. GENERAL PLAN OF THE COURTS. 97 who should be properly before it, notwithstanding others were not inhabitants of the district, nor found within it, and did not Toluntarily appear. This Act did not contemplate a change in the rule laid down by the Supreme Court respecting the jurisdiction of the courts, as it regards the character of the parties ; that is, that each of the plaintiffs must be capable of suing, and each of the defendants of being sued. It was intended to remove the difficulties which frequently occurred in practice, from the necessity of joining several defendants in a suit, some of whom were, and others were not, inhabitants of the district where the process was issued. Its effect is that persons not being inhabitants, or not found within the district, need not now be joined at all with those who were, or, if they are joined, and do not waive their personal exemption by a voluntary appear- ance, then the court may go on to judgment or decree against the parties properly before it, as if the others [250] had not been joined.' The Act relates solely to the non-joinder of persons who are not vrithin the reach of the process of the court. It does not affect any case where persons having an interest are not joined because their citizenship is such that their joinder would defeat the jurisdiction." In its application to common law suits it obviates the diffi- culty arising from the rule of common law that where one of several joint obligors in a contract, whether verbal or in writ- ing, was sued alone, he could plead the non -joinder of the other obligors in abatement, and thus defeat the jurisdiction of the court in cases where the joint obligors not sued were citizens of the same State with the plaintiff, or were residents of some other district than that where the suit was brought. By the Act of 1839, in such cases the plaintiff can now prose- cute his suit to judgment against any one of such obligors, in any district where he may be found.' In its application to suits in equity the rule is no more than a legislative affirmance of the practice previously estab- lished in the courts of the United States, in actions of that character, according to which the court proceeded as between parties whose presence was essential to the final determination 'Commercial & Railroad Bank of 280; D'Arcy v. Ketchum, 11 JSbw., Vicksburg ». Slocomb, 14 Pet., 60. 165 ; ClearWater o. Meredith, 21 " Shields t. Barrow, 17 Bow., 130. id, 492; Inbusch «. Farwell, 1 BUoh, • Barney ®. Baltimore Citv. 6 Wall., 566. 7 98 THE JUDICIAL ORGANIZATION. of a controversy, notwithstanding the absence of formal par- ties, or even of necessary parties having only interests which were separable from those of the parties before the court. But it remains true, notwithstanding the statute, and Kule 47 for courts of equity, made in pursuance of it, that a court of the United States can make no .decree affecting the rights of an absent person and can make no decree between the parties before it, which so far involves or depends upon the rights of an absent person that complete and final justice can not be done between the parties to the suit without affecting those rights." ' [251] The restriction imposed by section 11 of the Judi- ciary Act was still further relaxed by the Act of May 4, 1858, which relates to the case of actions brought in a court of the United States within a State containing more than one district." Such suits, if of a transitory nature, are to be brought in the district where the defendant resides, if there be but one defendant. If there be several residing in different districts in the same State the plaintiff may sue in either district. In suits of a local nature the plaintiff may proceed in the district where the suit must be brought, against a defendant resident in another district of the same State,, and if the prop- erty in question lies partly in one district and partly in another, in the same State, the plaintiff may proceed in either district.' Further, by Act of June 1, 1872,* when any defendant in a suit in equity to enforce any legal or equitable lien or claim against real or personal property within the district where the suit is brought, is not an inhabitant of nor found within the said district, and does not voluntarily appear thereto, the court may make an order directing such absent defendant to appear, plead, answes, or demur to the complainant's bill at a day designated ; if he does not appear, the court, upon proof of service, &c., may proceed as if he had been served within the district ; but the adjudication shall, as respects him, affect his property within the district only. ' Shields?). Barrow, 17 Bow., 130. ■». "Walkinshaw, 1 McAU.., 36. 'Barneys. Baltimore City, 6 Wall., ' Ttev. Staf., §§ 740, 741, 742. For 380. See, also, Shields v., Barrow, 17 provisions governing .suits involving Sov!., 130; Greene v. Sisson, 3 Ourt. national banks, see Rev. Stat., §563, O. Ot., 171; Winters. Ludlow, 3PM?., subd. 15; § 639, subd. 11; § 736. 464; S. C, 16 Leg. Int., 332; Tobin <■ Rev. Stat., § 738. GENERAL PLAN OF THE COURTS. 99 Sect. 59. Distinction between "local" and "transitory" suits. — By the enactments above considered tlie distinction between local and transitory actions is recognised for the courts of the United States, and is applied according to the local jurisdic- tion of those courts. Where, in equity, a cause involves a naked question of title, the suit is local ; but where the question changes its ■character, where the defendant is liable to complainant, either in consequence of contract or as trustee, or as the holder of a •legal title acquired by any species of bad faith practiced on the plain tiflE, the principles of equity give the court jurisdic- tion wherever the person may be found ; and the circum- stance that a question of title may be involved in the inquiry, and even constitute the essential point on which the case depends, will not arrest the jurisdiction. Thus a court of equity will decree a specific performance of a contract respecting lands ; will interfere where a party has fraudulently obtained a rent-charge upon lands; will enforce a trust concerning lands ; and will sustain a'bill for the foreclosure of a mortgage of lands, although in all these cases the lands lie without the jurisdiction of the court, pro- vided the defendant resides, or is to be found, within it. ' An offence may continue into two States, and be [252] punishable in both. So, also, civilly, a wrong-doer may be held liable to action in the courts of the United States, either where the direct act was done or where the consequen- tial injury took place. Thus, where parties owned, as tenants in common, a watercourse which was a boundary line between two States, it was held that an injury by diversion might be sued for in a personal action in the State where the injurious act was committed, or the injury to the mills resulting from the act might be sued for in the State where they were situated. The easement which the party has in such a case, in the flow of the water, is not indentical with the locality of the property." ' Massie v. Watts, 6 Craneh, 148. the decree itself, nor any conveyance But compare, as to foreclosure of under it, except by the person in mortgages, King i). Tuscumbia R. R. whom the title is vested, can operate Co., T Pa. Law J., 166. beyond the jurisdiction of the court, For the application bv courts of the — see "Watts «. Waddle, 6 Pet., 389; 1 United States of the rule that although McLean, 300; Watkins o. Holman, 16 a court, on a bill for a specific per- Pet., 25, 57; Cariington ®. Brents, 1 formauce of a contract for the sale of McLean, 167. land, may enforce its decrees by pro- ^ Stillman v. White Rock Manufac- cess against the defendant, neither turing Co., 3 Woodb. & M.. 538. It 100 THE JUDICIAL ORGANIZATION. Sect. 60. Locality of arrests and of criminal trials. — The Judiciary Act provided that no person should be arrested in one district in a civil action for trial in another.' This exemption, too, is ■ a personal privilege which the defendant may waive, if he chooses, by a voluntary appear- ance. In criminal cases, trials must be held in the State in which the crime has been committed, but if not. committed within any State, then at such place or places as Congress may by law have directed." And by the sixth amendment it was added that the trial must be in the State and district in which the crime was committed, which district shall be previously , ascertained by law. [253] In capital cases the trial must be had in the county where the offense was committed, where that can be done without great inconvenience.' This act is not abrogated or superseded by the amendment of the Constitution to which we have referred,* nor does that amendment apply to crimes committed against the laws of the United States out of the limits of any State. Such crimes are to be tried, as is required by the provision of the Consti- tution first referred to, at such place or places as Congress may by law have directed. Congress has directed that the trial of all offences com- mitted upon the high seas or elsewhere, out of the jurisdiction of any State or district, shall be in the district where the offender is found, or into which he is first brought. ' Sect. 61. Writs.— The Judiciary Act gave the Supreme Court power to issue writs of prohibition to District Courts in admiralty and maritime causes, and writs of mandamus to any courts appointed under the authority of the United States.' And power was given to the Supreme Court and the District and Circuit Courts to issue writs of scire facias and habeas corpus, and all other writs not specially provided for by statute, which should be necessary for the exercise of was held, also, in this case, that where tions of certain specified cases, Rev. a remedy by injunction is sought Stat., § 739. against a nuisance in one State, which ' Oonstitution, Art. III., § ii., 8. injures property in another, the laws 'Hev. Stat., §729. which govern must be those of the * United States "«. Burr, Burros Tr., State where the injurious act was 353. done. "Bev. Stat., § 730. 1 Act of Sept. 34, 1789, § 11. See 'Act of Sept. 34, 1789, § 13, Bee. the enactment continued, with excep- Stat., § 688. GENERAL PLAN OF THE COURTS. 101 their respective jurisdictions, and agreeable to the principles and xxsages of law.' The power wielded by the writ of mandamus is thus placed, conformably to the theory of the English law, in that tribunal which has the general supervising power over all inferior jurisdictions and judicial officers of the government." But the same power is also extended to the District and Cir- cuit Courts, in so far as the proper use of such a writ is neces- sary to the exercise of the other jurisdiction of those courts. The power of the courts of the United States to issue these writs includes not only mandamus, but certiorari. The power is not, however, inherent in the court. It is imparted by the statute, and must be exercised under the qualifications indicated by the law. By the inferior courts the writ [254] can only be awarded as auxiliary to the exercise of a judicial authority over the case or subject-matter to which it is applied.' The courts may issue such writs in aid of their jurisdic- tion, not only to control the courts and judicial officers of the United States, but as well to control State officers, wherever the existing jurisdiction of these courts over such officers would be ineffectual without it. Where such an exigency arises, and the courts of the United States accordingly issue a writ of mandamus, for instance, the writ is neither a prerogative writ, nor a new suit in the jurisdictional sense. A mandamus issued in such a case, in order to enforce a judgment of a court of the United States, is a proceeding ancillary to the judgment which gives the jurisdiction." The restriction expressed in the statute, that the writ and the mode of issue must be agreeable to the principles and usages of law, is understood as referilng to the principles and usages of law as known and understood in the State courts at the date of that enactment. Sect. 62. Mode of procedure. — We have already adverted to the statute which . declares that the laws of the several States shall be regarded as rules of decision at law, and have seen that this sta,tute does not apply to matters of practice. •Act of Sept. ^4, 1789, § 14; Beo. 'Matter of Van Orden, 3 Blatchf., Stat., § 716, J 751. 166; 12 N. Y. Leg. Obs., 161. ' Kendall v. United States, 13 Pet., * Riggs v Jonhson County', 6 Wall,, 634. 166. 102 THE JUDICIAL ORGANIZATION. The various enactments under wliic]! procedure in the national courts has been regulated, have recently been re-stated va, the Revised Statutes, under a consolidated and simplified form. But a brief review of the history of the original laws has not lost importance. It will be useful to the reader at this point, both as essential to a general view of the scheme of courts estab- lished by the acts of Congress, and as preparatory to inciden- ' tal references to the subject inseparable from the topics of jurisdiction to be presently considered. The act organizing the courts regulated many matters of procedure ; and at about the same time Congress passed the first Process Act. This directed that the common law pro- cedure, not otherwise regulated, should conform to the procedure then used in the State courts of the State where each United States court sat ; and that the equity., admiralty and maritime procedure should conform to the civil [255] law. The practice at common law established under this act (which was temporary by its terms) was preserved and confirmed by the Process Act of 1792 ; which further provided that the -procedure in equity and admiralty and maritime jurisdiction should conform to thei principles, rules, and usages belonging to courts of those respective jurisdictions, as distinguished from courts of common law, subject to the power of the courts to modify their own procedure by rules made for themselves, or by the Supreme Court for the Dis- trict and Circuit Courts. We can not better delineate the effect of this regulation of the common law procedure, than in the following language of Mr. Justice Clifford : "The intention of Congress, in passing the Process Acts, was, that the forms of writs and executions, and the modes of process, and proceedings in common law suits, in the ' several Circuit courts, should be the same as they were at that time in the courts of the respective States. Instead of framing the forms of process and prescribing the modes of process. Congress adopted those already prepared and in use in the respective States, not as State regulations, but as the rules and regulations prescribed by Congress for use in the several Circuit courts. Adopted, as they were, by an act of Congress, they became the permanent forms and modes of proceeding, and continue in force wholly unaffected bv any GENERAL PLAN OF THE COURTS. 103 subsequent State legislation. Alterations can only be made by Congress, or by the Federal courts, acting under the authority of an act of Congress. " The practical effect of the course pursued was, that the forms of writs and executions and the modes of process and proceedings were the same, whether the litigation was ia the State court or in the Circuit Court of the United States. They were not always the same in different States nor in different circuits ; and in some instances they were widely different in the different States of the same circuit. Those diversities, or many of them, continue to the present time. " Great diversity in the forms of real actions and of indict- ments were the necessary effect of the system. Different rules of pleading necessarily followed.- Modes of process also were different, both in respect to the mesne and final process. Attachment of personal and real property [256] upon mesne process is allowed in one district, while the power to create any such lien in the service of such process is entirely unknown in another district, even in the same circuit. Lands of the debtor were subject to seizure and sale on execu- tion in one district, while in another real property was only subject to seizure and an extent corresponding to a modified elegit, as at common law. Money judgments in one district became a lien upon the lands of the judgment debtor, while in another the judgment creditor must first seize the lands before he was entitled to any such preference. " Remedies on judgments against municipal corporations partook of the same diversity in the different districts as that appearing in the modes of process to enforce judgments re- covered against private persons. Judgment against such a corporation might be enforced in one district by levying the execution, as. issued against the corporation, upon the private property, personal or real, of any inhabitant of the munici- pality, while in another the appropriate remedy, -in case the execution against the corporation was returned nulla 'bona, was mandamus to compel the proper officers of the corpora- tion to assess a tax for the payment of the judgment. " The Circuit Courts, by virtue of those acts of Congress, became armed with the same forms of writs and executions) and vested with the authority to employ the same modes of process, as those in use in the State courts. The permanent effect of that wise measure was, that the forms of writs and. 104 THE JUDICIAL ORGANIZATION. executions, and the modes of process were the same, whether the litigation was in the forums of the State or in the Circuit Court of the United States." ' A very important qualification of this uniformity in the procedure of the State and national courts within the same State, resulted from the fact that the practice adopted was that of the State courts at the time of the enactment, while the subsequent radical changes in procedure made in many States, were not adopted to any great extent by the courts of the United States. The procedure, especially in States admit- ted to the Union since 1792, was made dependent on the acts of 1828, and of 1842, and on the various special acts by [257] which the various circuits and districts were extended over new States subsequent to 1842. The general prin- ciple, however, was that procedure in the United States courts depended. First. On acts of Congress regulating the procedure in such courts : or, Second. In the absence of any such regulations, upon some rule of the United States courts ; or. TJiird. In the absence of both, upon the practice prevailing, either at the time of the proceeding, or at some former period, in the courts of the State in which the cause of action arose. The power conferred upon the courts by the last clause of section 3 of the act of May 19, 1828, to alter their final process so as to conform to changes in the State laws, extended to future legislation of the States.' But under that provision, the courts of the United States had authority to adopt a State law only as the legislature had made it, without selection* or alteration of its provisions." An act passed in 1872,' and almost immediately afterward embodied in the Revised Statutes, introduced a more liberal and flexible rule, by providing that "the practice, pleadings and forms, and modes of proceeding in civil causes, other than equity, and admiralty causes, in the Circuit and District courts, shall conform, as near as may be, to the practice, pleadings, and forms, and modes of proceeding, existing at the time in like causes in the courts of record of the State ' Riggs ». Jolmson County, 6 Wall., * Act of .Tune 1, 1873, § 5, 17 Siat. 166. at L., 197, Bev. Stat., § 914. See the " RosB V. Duval, 13 Pet., 45 ; Mc- existing enactments on the forms of Crnclcen «. Hayward, 3 How., 608. proceedings in their connection. Sev. " McCracken v. Havward, 3 How., Stat., § 911 and onward. 608, GENERAL PLAN OF THE COURTS. 106 Tvithin wMcli such Circuit or District courts are held, any rule ■of court to the contrary notwithstanding." By the acts referred to, Congress have delegated to the courts of the United States power to tnake and alter rules of practice, giving them that general superintendence over the subject which seems to be properly within the Judicial pro- 'vince, and has been always so considered. The power to alter and add to the forms of process and modes of proceed- ing in a suit, embraces its whole process, and every transac- tion in it, from its commencement to its termination by the satisfaction of the judgment. It cannot be limited to formal as contradistinguished from substantial alterations, but must be understood as vesting in the courts authority so to frame, mould and shape the process, as to adapt it to the purposes intended. The rules of practice thus established by virtue of an act of Congress, have the force of a statute ; but wherever there is antagonism between them and a later statute, the rules of practice must of course yield, and the law of Congress gov- ern.* No court of the United States is authorized to adopt [258] by rule any provisions of State laws which are repug- nant to, or incompatible with the positive enactments of Congress, upon the jurisdiction, or practice, or proceedings of such courts." Within this limit, rules of pi;actice for transacting the bus- iness of the courts are a law to the courts ; and such rules, ih relation to the Federal courts, form a law arising under the constitution of the United States, and consequently are not subject to State regulation.' Even the agreement of parties cannot authorize the Supreme Court to revise a judgment of an inferior court in any other mode of proceeding than that which the law pre- scribes ; nor can the laws of a State, regulating the proceed- ings of its own courts, authorize a District or Circuit Court sitting in that State to depart from the modes of proceeding and rules prescribed by the acts of Congress.* In general, courts of equity have power to modify their •Scott ». The Young America, 1 Bank of Memphis, 16 Pe«., 89. tTevl., 107; Magruder v. United = Golden ».. Prince, 3 TFosA. C. (7<., States, Zleo., 31.' 313 ; «. C, o Am. Law J., 503. ° Keary v. Farmers' & Merchants' * Kelsey v. Forsyth, 31 How., 85. 106 THE JUDICIAL ORGANIZATION: own rules to meet the purposes of justice.' And for good, reasons, and on proper terms, the rules made by the Circuit court may be varied or dispensed with by that court, for instance to give a longer time to perform a required act." It is thus in the power of a court to suspend its own rules, or to except a particular case from them, to subserve the purposes of justice." Sect. 63. Incidental powers.— The most important of the incidental powers conferrred upon the courts of the United States by act of Congress, are : * the power to grant new trials in jury cases, to compel discovery of books and papers, to administer oaths and affirmations, and to punish as con- tempts of court misbehavior in the presence of the court, or so near thereto as to obstruct the administration of justice, and misbehavior of officers of courts in their official [259] character, and disobedience and resistance by any per- son to any lawful process or command. Sect. 64. Judges. — The judges of the United States courts are appointed by the president, with the advice and consent of the senate. By the Constitution they hold office during good behavior ; and are entitled at stated times to receive for their services a compensation not to be diminished during their continuance in office. This compensation is, at present, fixed at ten thousand five hundred dollars a year to the chief justice ; ten thousand dollars to each associate justice of the Supreme Court, and six thousand dollars to each circuit judge ; while the salaries of the district judges vary from three thousand five hundred to five thousand dollars, in dif- ferent districts. It is understood that the salaries of all judges of courts of the United States are due from the date of appointment, but the individual does not become en- titled to draw pay until he has entered on the duties of his office, or has at least taken his official oath ; for, until then, though under commission, he is not actually va. office. " Any judge who, having held his commission as such at least ten years, and having attained to the age of seventy years, resigns his office, may thereafter, during the residue ' Lawrence v. Bowman, 1 McAll., ' United States v. Breitling, 30 419. Bow., 252. And see Kussell ». Mc- = Wallace ». Clark. 3 Vfooah. & M., Lellan, 3 Woodb. & M., 157. 889. B&3. Stat, §§ 734-736. GENERAL PLAN OF THE COURTS. 107 of his natural life, receive the same salary which, was by law payable to him at the time of his resignation. ' It is incumbent upon the district and territorial judges to reside within the districts, and circuit judges within the cir cuits, respectively, for which they are appointed ; under pen alty of misdemeanor.' For any judge appointed under the authority of the United States, to exercise the profession or employment of counsel or attorney, or to be enga,ged in the practice of the law, is a high misdemeanor.* An oath of office to be taken by the judges of the consti tutional courts is prescribed by section 712 of Revised Statutes. ^ The national judges are within the protection of the gen- eral rule that judges of courts of record of superior or gen- eral jurisidiction are not liable to civil action for judicial acts, even when in excess of jurisdiction, and done maliciously or corruptly. For acts done in the clear absence of all jurisdic- tion over the subject-matter, they may be held liable.* The judges of the courts of the United States are author- ized to perform numerous acts incidental to the admuiistra- tion of justice, besides the entertaining of actions within their local jurisdiction.' Thus, any justice of any court of the United States [260J may take depositions de bene esse in certain cases." Any judge may also issue subpoenas duces tecum to com- pel the production of testimony before a commissioner to take depositions to be used before courts of the United States in other districts.' ' Rev. Stat., § 714. such. It is no unusual use of lan- A decree signed by a district judge guage to put the judge for the court, after he has tendered a conditional and to make provisions for him to resignation, but before it has been execute which can only be executed in accepted by the government, is valid, court. Nortbrup v. Gregory, 3 Abb. U. S., If, however, an act of Congress 503. appears intended to confer power " Sev. Stat, §§ 551, 553. And see on the courts as a judicial function. Id., § 553. it cannot be construed as an authority ' Bei). Stat., § 713. to the judges composing the court to * Bradley v. Fisher, 13 Wall., 835 ; exercise the power out of court in the Bandall ». Brigham, 7 Wall., 533. character of commissioners. Porter 'Where a statute confers a power «. United States, 2Paine,S13; United upon the "the judge," it is not nee- States v. Ferreira, 13 How., 40, 53, essatily to be understood as a power note. to be exercised out of court, and not ' Rev. Stat., § 863. a power conferred upon the court as ' HeD. Stat., § 869. 108 THE JUDICIAL ORGANIZATION. Any judge may issue subpoenas to take testimony in cases of contested elections to tHe House of Representatives. ' Any district judge may issue subpoenas to require witnesses residing or found within Jiis district . to appear before com- missioners to take testimony for a foreign court." The Circuit and District Courts may take declarations of certain aliens intending to become citizens, or applying for admission as such.' Any judge of the United States may take bail for appear- ance in any court of the United States in any criminal cause in which bail is by law allowed.* Any judge of the Supreme Court may grant writs of ne exeat and of injunction, in cases in which they might be granted by the Supreme Court or by a Circuit Court." The judges of the District Courts have the same power to grant injunctions to operate within their respective districts, in all cases which may come before the Circuit Courts within their districts, as the Supreme Court judges have.' The judges of the District Courts may, upon reasonable notice to the parties, award process and commissions, make interlocutory orders and rules, and direct other proceedings; at chambers or in the clerk' s office, and in vacation as well as in term. The judges of the Supreme and District Courts may take security of the peace and for good behavior, in cases arising under the Constitution and laws of the United States.' The judges of the Supreme Court and of the District Courts are authorized to administer the poor debtor's oath in* certain cases.' Sect. 65. Jurors. — The statutory regulations affecting the qualification, summoning, and impanneling jurors, and the powers and duties of grand and petit jurors, are now system- atically collected in Chapter 15, of Title 13, of the Revised Statutes, § § 800-822 ; and need not be restated here in detail.' The general principle recognized, is that jurors to serve in the United States courts shall have the same qualifications ' Rexi. Stat., § 110. ' See Book mi., post. To the pro- ' Rev. Stat., § 4071. visions mentioned in the text, should ' Rev. Stat., §2165. be added, Sev. Stat., § 853, preacrib- ' Mei>. Stat., § 1014. ing jurors' fees, and § 1671, exempting ^ Sev. Stat., §717. artificers and worlcmen employed in ' Bei>. Stat., § 719. the armories and arsenals of the ' Bei>. Stat., § 737. United States, from jury duty, ' JBev. Stnt.. § 991. GENERAL PLAN OF THE COURTS. 10& and be entitled to the same exemptions as jurors in th.e high- est court of law of the State, at the time ; and shall be des- ignated according to the mode practiced at the time, in snch State court. The mode of issuiug, serving, and returning writs of venire facias is the subject of some express regulations, and there are some local rules prescribed to operate within the districts of Pennsylvania, Northern ]S"ew York, Vermont, Western Arkansas, Kentucky, Indiana, and Western South Carolina ; as to these the statutes themselves should be con- sulted. It is to be observed that the adoption of the State practice is prospective ; future enactments of the State legislatures are included. But the reference to the State laws does not require a literal conformity to their methods of selecting and drawing jurors ; a substantial compliance is sufficient ; and this is required only so far as practicable.' These proceed- ings in the national courts are entirely independent of State laws and usages, except so far as these may be adopted, or followed as a matter of convenience. No fundamental prin- ciple requires conformity. Congress does not re-enact the respective State laws, but only prescribes conformity to them in certain respects, and then gives the courts power to make rules for the attainment of such conformity, in substance, as far as practicable, in their different circumstances, permitting them to make all necessary rules a,nd regulations for con- forming the designation and impanneling of juries, in sub- stance, to the laws and usages now in force in each State, with power to make such changes in these respect as new legislation of the State may indicate.' And the practice of the State courts, in relation to sum- moning juries does not become, it is held, the practice of the United States courts, untU expressly adopted by the latter.' Although the qualiflcations of jurors in the national courts are to be determined by the State laws, the number of persons to compose a jury is not influenced by the laws of the State.* ' United States ®. Tallman, 10 liar statutes of the State (South Caro- Blatchf., 31. Una), but recently, before the summon- » United States v. Collins, 18 Int. ingthe jury, the statute and the practice Bev. Bee. 69. of the iState courts under it had been " Thus where a jury was summoned materially modified, it was held that in the Circuit Court, according to the jury was regularly summoned not- what had for a long time been the withstanding, practice of the courts, under the ear- ' United States v. Dow, Tanty, 34. 110 THE JUDICIAL ORGANIZATION. A petit jury miist be composed of twelve, according to the rule of tlie common law. ' A grand jury must, by Rexi. Stat, § 808, consist of not less than sixteen nor more than twenty- three persons. In addition to the causes of disqualification and challenge resulting from the adoption of the State laws, no person is liable to be summoned more than once in two years," and the voluntary joining or assisting in any rebellion or insurrection against the United States is made a disqualification,' as to which a form of oath is authorized to be tendered to any venire man. It is held that although this will not, except at the instance of the attorney representing the government, be administered to jurors in the courts of the United States, yet any party may avail himself of the disqualification as a good cause for challenge. It does not follow, because the district attorney alone can call for the administration of the oath, that he alone can urge the disqualifying condition.* And such challenge, interposed by a party other than the govern- ment, may be disposed of by allowing those jurors who deem themselves disqualified to retire from the panel, without any fiworn evidence of their incompetency.' The grand jury of a District Court may take cognizance of all crimes and offences within the jurisdiction of the Circuit Court for the district, as well as of those within the proper jurisdiction of the District Court.' Grand jurors may, for cause, be challenged by any person to be affected by their finding. The right is not restricted to such persons as are in prison or under bail upon charges of crime. It may be exercised by one, who, though still at large, has been warned by the prosecuting attorney that he will be made, during the term, the subject of an indictment for perjury. And where there is reasonable excuse for the delay, challenges to members of the grand jury will be heard after the body has been fully organized.' But an indictment will not be vitiated by irregularities on the part of one member of a grand jury properly constituted, ' United States v. Insurgents of tain cases involving the civil rights Pennsylvania, 3 Ball., 335 ; Bonaparte laws. V. Camden & Amboy R. R. Co., Baldw., ' United States e. Blodgett, 85 Qa,, 205. 336. ' Beo. Stat., § 812. ' lb. ' Rev. Stat., §§ 820, 831. See also § « Sev. Stat., § 813. 823, for a restriction applicable in cer- ' United States v. Blodgett, 35 Oa., 388. GENERAL PLAN OF THE COURTS. Ill althougli the action of a whole panel which contains uncLuali- fied members, will be pronounced void.' There are no defendants or co-defendants to an inquiry before the grand jury, until the indictment is found and filed in court." Witnesses cannot be sent to the grand jury on the part of the accused.' Nor can he submit evidence io them on his behalf, not even by the consent of the prosecuting attor- ney ; the grand jury are to examine the foundation on which a charge is made by the government ; not that on which it is denied by the alleged offender.* The investigations of a grand jury are to be limited to Buch matters as may be called to their attention by the court, or submitted to them by the district attorney, or may come to their knowledge in the course of their investigations, or from the observations or disclosures of the members^ of their personal cognizance, and confirmed upon oath. In their investigations they are to receive only legal evidence, to the exclusion of mere report, suspicions, and hearsay evidence. Subject to this qualification, they may receive all the evi- dence presented which may throw light upon the matter under consideration, whether it tend to establish the inno- cence or the guilt of the accused.* The attorney for the government has a right to be present during the sitting of the grand jury, to conduct the evidence, and to confer with them.' But the limit of his duties ig reached when he has explained the meaning of laws, laid before the grand jury all evidence iu his hands, officially, and aided in the examination of the witnesses. He should take no part whatever in discussions of the grand jury as to guilt. The weight and credibility of the testimony is wholly for them, without even a suggestion from him. And, although, in plain cases, such a formality is not usually com- plied with, it has been said to be decorous for the government officer to withdraw when the grand jury are to decide upon the case, and, in all questions of importance and of doubt, indelicate for him to remain. Without exception, it is his duty to do so upon request of the jury, when he has submit- • United Statea «. Wilson, 6 -Jfc- 4 i«?., 514. Lean, 604. * United States o. Blodgett, 35 See also, Ml. Nat. Dig., titles ' Campbell v. Read, 3 Wall., 198. CmcuiT Court of the District op ' Scott v. Jones, 5 Eow., 343. Columbia; Supbbmb Codbt of the * Banner ®. Porter, 9 How., 235. Distbict, &c. " Beii. Stat., § 1907. 126 THE JUDICIAL ORGANIZATION. [279] law, and. terms for causes in which the United States are not a party are held in the counties fixed by the laws of the Territory. The Supreme and District Courts, respectively, possess chancery as well as common law juris- diction. Writs of error, bills of exceptions, and appeals, are allowed in all cases from the final decisions of the District Courts to the Supreme Court, under such regulations as may be prescribed by the Territorial legislature. Justices, of the peace are not to be given jurisdiction of any matter in contro- versy when the title of land may be in dispute, or where the debt or sum claimfed exceeds one hundred dollars. The District Courts have the same jurisdiction, in all cases arising under the Constitution and laws of the United States, as is vested in the Circuit and. District Courts of the United States ; and the first six days of every term of the District Courts, or so much thereof as shall be necessary, is required to be appropriated to the trial of causes arising under the Constitution and laws, and writs of error and appeal in all such cases are to be made to the Supreme Court of such Ter- ritory, the same as in other cases.' A marshal and attorney are appointed, as are the judges, by the president and senate. A clerk is appointed by each Supreme Court judge, in his district. Many other details oi organiiiation and powers are prescribed- by the Revised Stat- utes. Some embarrassment has been caused by questions of juris- diction arising upon the change of the government of a Ter- ritory into a State government. It is competent for Congress to provide for the transfer of causes, whether civil or criminal, which are pending at the termination of the Territorial gov- ernment, to the national courts, with authority to proceed therein to a final disposition. Without such authority, cases pending in the Territorial courts abate when the courts cease to exist, by the change of organization.' [280] Sect. 77. Military Courts. — The Articles of War con- tain provisions regulating in detail the organization, Rev. Siat. § 1910. As to Utah, 18 11 Stat, at L., 328. For the effect of Stat, at L., 353. the previous statutes relative to such ^ I'orsyth v. United States, 9 How., cases, see McNulty «. Batty, 10 How., 571. The review of jndgments and 72; Preston*. Bracken, Id., 81; Ben- decrees of Territorial courts, notwith- ner v. Porter, 9 Id., 285 ; Simpson v. standing the subsequent admission of United States, 9 Id., 578 ; Cotton «. the Territory as a State, is now pro- United States, ii., 579. vidcd for by the Act of June 12, 1858. GENERAL PLAN OF THE COURTS. 127 powers and proceedings of military courts-martial ; and the rules and regulations for the government of the navy in a similar manner provide for the naval courts-martial and courts of inquiry.' ' See the statutes referred to in JM. Nat. Dig., title CouETS-MAKTiAii. The acts of Congress, conferring jarisdiction upon a naval and military courts-martial to try offenses commit- ted in the naval and military service, are constitutional ; and it is not neces- sary that the jurisdiction should he exercised or attach by an arrest and commencement of the prosecution before the connection of the offender with the service is legally severed. Congress has power to authorize a trial for offences committed while in the service after the offender has be- come a private citizen. Ee Bogart, 17 Int. Sec. Bee, 155. Courts martial are judicial tribunals constituted by statutory authority, and organized in pursuance of statutory regulation, for the administration of a great and important department of jurisprudence, the law military. They are, in the strictest sense, courts of justice, having jurisdiction of a large and, in some respects, distinct com- munity, and taking judicial cogni- zance of the duties and obligations which the citizen assumes when he enters, by enlistment or otherwise, into the military service of the country. They are, moreover, not only legally constituted courts of justice, but also, courts whose judgments in cases fitted for their consideration and deteimination, are as final, conclusive, and authoritative ag those of any ju- dicial tribunal of the country. Hence, where their judgments become finalities — when their proceedings have been consummated by the action of the com- petent revisory authority — the records of the proceeding should be regarded as standing upon the footing, as far as the parties affected and the community at large are concerned, as the records of tlie ordinary tribunals of civil and criminal jurisdiction. Any person having an interest in the record of a naval court-martial on file in the navy department, is entitled to have an «xemplified copy of it after the pro- ceedings are consummated by the action of the proper revisory power. Records of the Courts-Martial, 11 Op. Att.-Gm., 137. After the trial and conviction of an officer of the navy by a court-martial having jurisdiction of the case, and the sentence, dismissing him from the service, by the president, and after such sentence has been carried into execution, the president can not re- consider his approval and revoke the sentence of the court. President's Approval of Sentence, 11 Op. Att-Gen., 19. In passing upon the sentence of a court-martial, and giving to it the approval without which it can not be executed, he acts judicially. The trial, finding, and sentence, are the solemn acts of a court organized and conducted under the authority and according to the prescribed forms of law. And the acts of the officer who reviews the proceedings of the court, whether he be the commander of the fleet or the president, and without whose approval the sentence can not be executed, is as much a part of this judgment, according to law, as is the trial or the sentence. When the president performs this duty of ap- proving the sentence ' of a court- martial dismissing an officer, his act has all the solemnity and significance of the judgment of a court of law. As it has to be performed under the same sanctions, so it draws with it the same consequences. One of these consequences is, that where a judg- ment has been regularly entered in a case properly within the judicial cognizance, from which no appeal has been provided or taken, and it has been followed by execution, it is final and conclusive upon the party against whom it is entered. And this effect attaches to the action of the president in approving the sentence of a court- martial dismissing an officer. After that approval has been consummated by actual dismissal, it is not open to a subsequent ponsideration and re- versal. Ih. 128 THE JUDICIAL ORGANIZATION. The Talidity of military tribunals established during th& rebellion was very elaborately discussed in the case of Milli- gan, in the Supreme Court in 1866.' The court were divided upon the questions involved, although concurring in the order made in reference to the cause before them. The major- ity of the court were of the opinion that if, in case of a for- eign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, in the locality where war actually prevails, the military power is allowed to govern by martial rule until the laws can have their full course ; and in such a contingency courts-martial may have jurisdiction to try and punish offen- ses. But that military commissions organized during the late civil war, in a State not invaded and not engaged in rebellion, in which the Federal courts were open, and in the proper and unobstructed exercise of their judicial functions, had no jur- isdiction to try, convict or sentence for any criminal offense, a citizen who was neither a resident of a rebellious State, nor a prisoner of war, nor a person in the military or naval ser- vice ; and that Congress could not, under the Constitution, invest them with any such power. The chief justice, and three of his associates, dissented from the position that Congress had not power to authorize the establishment of such tribunals, under their authority to provide for the government of the national forces, to [281] declare war, and to provide by law for carrying on war. And they concurred in the opinion that three kinds of military jurisdiction may be exercised under the Constitu- tion. First. Jurisdiction under military law, to be exercised during peace or war, under rules and articles established by Congress for the government of the national forces. Second. Military government, to be exercised in tirqe of war, without the boundaries of the United States in time of foreign war, and, in case of civil war, within States or dis- tricts occupied by rebels, treated as belligerents. This juris- diction is to be exercised by the military commander under the direction of the president, with the express or implied sanction of Congress, and may supersede, as far as may be deemed expedient, the local law. ' Bxfp. Milligan, 4 Wall., 2. See 563, and Burke ®. Miltenberger, 19 also, the cases of The Grapeshot, 7 lA., Id., 519. GENERAL PLAN OF THE COURTS. 123 Third. Martial law proper, to be exercised within tlie limits of tlie United States in time of invasion or insurrection, or during civil war, within the limits of the States not in act- ual rebellion, when the public danger requires its exercise. It may be called into action by Congress, or, in a case of jus- tifying or excusing peril, by the president, when ordinary law no longer adequately secures put)lic safety and private rights. In the case of Mechanics, &c. Bank,B. Union Bank, 23 Wall., 276, the Supreme Court has held that the. Constitution did not prohibit the military power from creating, during the civil war, courts for the trial of civil causes in conquered portions of the insurgent States ; the establishment of such courts was an exercise of one of the implied rights of conquest. And that a court established by proclamation of the commanding general in New Orleans, May 1, 1863, should be presumed, in absence of proof to the contrary, to have been authorized by the president ; and whether it acted within its jurisdiction in a particular cause, was a question for the Sta,te courts, not for the Supreme Court. At an earlier period in our Constitutional history, it was held, by the Supreme Court, that neither the president nor any military officer could establish a court in a conquered country, and authorize it to decide upon the rights of the United States, or of individuals.' The question came before the court in this case upon an appeal from a decree on a libel filed against a captain of a vessel of war, who had seized an American vessel in' a port of California during the war with Mexico. Before the capture was made, a prize court had been established at Monterey, in Mexico, by the military officer exercising the functions of governor of that province, of which possession had been taken by the American forces. The court was established by re- quest of the naval commander on the station, and Sanctioned 1 by the president of the United States, with power to exercise admiralty jurisdiction in cases of capture. The vessel cap- tured was carried to Monterey, instead of being sent to the United States, and was there condemned by this court as a prize. The Supreme Court held that this condemnation was not a valid defense for the captors. "The courts [282] established or sanctioned in Mexico," said Chief Jus- tice Taney, in delivering the opinion of the Supreme Court, ' Jecker d. Montgomery, 13 Row., 498. 130 THE JUDICIAL ORGANIZATION. "during the war, by the commanders of the American forces, were nothing more than the agents of the military to assist it in preserving order in the conqnered territory, and to protect the inhabitants in their persons and property while it was occupied by the American arms. They were subject to the military power, and their decisions under its control, when- ever the commanding officer thought proper to interfere. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize. And the sentence of condemnation in the court at Monterey is a nullity, and can have no effect upon the rights of any party." CHAPTER IV. [283] THE DISTKIOT OOUETS. Having viewed the scheme of the judicial organization of the United States in its entirety, we have seen that all the or- dinary judicial power of the Union is vested in numerous District Courts, nine Circuit Courts, and the Supreme Court ; which stand intimately connected with each other, both by the presence of the judges of the Supreme and District Courts as members of the Circuit Court, by the allotment of original jurisdiction, and by the relation of each to the other as an in- ferior or an appellate tribunal. Sect. 78. Eelations of the District Courts to the other Courts. — in considering the orgianization and jurisdiction of each of- these courts by itself, it might seem more logical to describe the most important tribunal first, and pass thence successively to those which are inferior ; but for the practical purpose of possessing the reader with a clear idea of the judicial business of these courts as it is carried on, with due regard to the mul- tiplicity as well as the magnitude of the interests affected, and to the characteristics of the great current of professional fbusiness which occupies the attention of the practitioners in these courts, and to make more clear the supervisory power which the Circuit Courts exercise over the proceedings of the District Courts, and which the Supreme Court in turn exercises over those of the Circuit Courts, and secondarily over those of the District Courts also', — it will be more convenient to proceed in the inverse order. We shall therefore first ask the reader' s attention to the District Courts, in which so considerable a portion of the judicial business of the United States courts [284] 133 THE JUDICIAL ORGANIZATION. originates. Passing thence into the Circuit Courts, as do the judges of the District Courts and judgments and decrees which they have ' made, we shall examine more in- telligently the constitution and the jurisdiction, both appellate and original, of the Circuit Courts, which, so much fewer in nulnber and superior in power, stand between the numerous local courts of the districts, and the single court of last resort. Passing then from the Circuit Court, in the ordinary course of appellate proceedings, we shall find the judges gathered from their respective circuits in the Supreme Court, whieh we shall enter as most of its practitioners do, from a conversance with the Circuit Courts, and shall thus be led to consider, in the first place, that which is, perhaps, in a practical sense, the most important part of the business of this highest tribunal, its revisals of the decisions of the Circuit Courts. It will remain then, to examine its powers in reviewing the decisions of the courts of last resort of the several States of the Union ; and, lastly, to define its original jurisdiction, — a power which, though of the very first importance, is rarely invoked. Sect. 79. Organization of the Districts. — The States are now divided into numerous districts, each State forming usually two or more, in each of which a District Court is organized, consisting of one judge resident in the district. By the original scheme of courts, established by the Judiciary Act^ each State was constituted a District, — Maine and Kentucky, however, which were then parts of Massachusetts and Virginia^ resj^ectively, being organized as separate districts. It was contemplated by that act that there should be four annual sessions in each district, and that the district judge should have power also to hold special courts or sessions in his dis- cretion. The records of the court were required to be kept at the place at which the District Court was directed by the statute to be held, or, if two places were named, at the one of them which the district judge should direct. By various later enactments, passed under the extension of the Union and the increase in judicial business, declaring new States to be districts, or dividing the larger States into two districts, or, in respect to Alabama, New York and Tennessee, into three, there are now fifty eight of these dis- tricts.' The statutes describing the boundaries of the districts, ' Fifty-seven are designated by Ssv. Stat, tit. xiii., ch. 1, and the THE DISTRICT COURTS. 133 regulating the organization of the District Courts, defining their jurisdiction, and prescribing the time and place of their sessions, are now embodied in the early chapters of Title XIII. of the Revised Statutes. The first chapter defines the bound- aries of the districts ; the second gives the organization of the courts ; the third declares the jurisdiction ; and the fourth prescribes the sessions, and provides in detail for the ad- journment or transaction of the business of the court,, in various cases of the absence of the proper judge ; his inability to hold court ; the existence of a vacancy in the ofBce, and the like. In case of interest or other disability of a judge relating merely to a particular cause, the party entitled to object there- to may have the cause moved into another court.' In some cases the District Courts of remote districts have been authorized to sit as Circuit Courts, and being thus vested vrith the powers of Circuit Courts, their decisions in that capacity have usually been made directly reviewable by appeal or error in the Supreme Court. Sect. 80. Jurisdiction of the District Courts. — Chapter three of Title XIII. of the Revised Statutes, enumerates eighteen heads of jurisdiction of the District Courts ;" which, briefly indicated, are : crimes not capital ; piracy (when no Circuit Court is held in the district) ; penalties and forfeitures ; suits by the United States or their officers ; liens on lands for internal revenue tax ; forfeitures or damages arising under the laws relative to debts due by or to the United States ; actions under the postal laws ; civil causes of admiralty and maritime jurisdiction, and seizures ; suits for condemnation of property used to promote insurrection ; certain suits upon assignments of debentures for drawback ; infringements of the civil rights laws ; infringements of rights secured by the constitution or laws of the United States ; certain suits to recover possession •of an office ; certain proceedings by quo warranto to remove from office ; suits by or against national banks ; suits by new State of Colorado is declared a 'It has been held that the District district by Act of June 36, 1876, § 1. Courts have the power and are bound Iowa is one district, which however to devise modes of proceeding which is in two " divisions." Sct. 5toi5., 537. shall enable them to carry into ef- For the efEect of a statute dividing fectual execution any law which they a district ' into two, see Porter ■!>. are called upon to administer, where United States, 3 Paine, 313. the Supreme Court has not already ' Rev. 8tat., § 601. &w Abh. Nat. by its rules provided for the mode of Dig., title RBMOvAi or Causes. proceeding. The Epsilon, 6 Ben., 378. 134 THE JUDICIAL ORGANIZATION. aliens for torts contrary to the law of nations or to a treaty of the United States ; suits against consuls or vice-consuls ex- cept for certain offences ; bankruptcy. With respect to several of these heads, some explanations additional to the text of the statute may be useful. [288] Sect. 81. Criminal Jurisdiction. — The statute gives the Districts Courts jurisdiction: "Of all crimes and offences cognizable under the authority of the United States,, committed within their respective districts, or upon the high seas, the punishment of which is not capital, except in the cases mentioned in section five thousand four hundred and twelve. Title ' Ceimes.' " The District Courts hold this jurisdiction concurrently with the somewhat broader juris- diction vested in the Circuit Courts. And in respect to the crimes triable in the Circuit and not in the District Court, indictments may be found in the District Court and remitted to the Circuit Court for trial. With two exceptions, to which allusion will be made, the criminal jurisdiction extends only to the violation of the positive laws of the United States, offences created or recog- nized by the written law being the only ones which are liable to indictment and punishment in the courts of the United States. [289] The two exceptions mentioned are those of offenses committed in places ceded to the United States, and cases affecting persons who are denied their rights in State tribunals. Where an act which is an offence by the law of a Sitate, is committed within a place which has been ceded to the juris- diction of the United States, — such as a navy yard or other government post, — it may be punished by the United States courts according to the State law, if no act of Congress has provided for it. The Civil Rights Bill gave to the District Court jurisdic- tion of offences against its provisions, and also, concurrently with the Circuit Courts, of all causes, civil and criminal, affecting persons who should be denied, or could not enforce in the State tribunals, rights by that act declared to belong- to all citizens. And it provided further, that in all such cases, where the laws of the United States were not adapted to carry it into effect, or were deficient, the common law, as modified by the Constitution and statutes of the State where the court THE DISTRICT COURTS. 135 sits, as far as not inconsistent with the Constitution and laws of the United States, should govern the court in the trial and disposition of such causes, and, if of a criminal nature, in the infliction of punishment. Sect. 82. Admiralty and maritime Jurisdiction.— The statute' gives the District Courts jurisdiction : " Of all civil causes of admiralty and maritime jurisdiction ; saving to suitors in all cases the right of a common-law remedy, where the. common law is competent to give it ; and of all seizures on land and on waters not within admiralty and maritime jurisdiction. And such jurisdiction shall be exclusive, except in the par- ticular eases where jurisdiction of such causes and seizures is given to the Circuit Courts. And shall have original and exclusive cognizance of all prizes brought into the United States, except as provided in paragraph six of section six hundred and twenty-nine." ° The enactment contained in the Revised Statutes was not in any respect a new grant of jurisdiction, nor was it designed to modify the jurisdiction as then existing, but was simply a statement of the extent to which the jurisdiction had been and then was, vested in the District Courts. The settled rules governing the nature and exercise by the District Courts of the admiralty jurisdiction remain substantially unaffected. Although the two jurisdictions of common law and ad- miralty causes which are conferred upon the District Courts are vested in the same tribunals, they are as [290] distinct from each other as if they were vested in dif- ferent tribunals ; they cannot be blended so that a proceeding shall be sustained partly by the one class of pow:ers and partly by the other.' In the exercise of their admiralty jurisdiction the District Courts are either instance courts or prize courts. The ad- miralty and maritime jurisdiction recognized by the Constitu- tion, and which, so far as civil cases are concerned, is con- ferred exclusively on the District Courts, embraces cases which are dependent either upon locality, or upon the nature ' ijCT. Sto^., §564, T 8; as amended an insurrection against the United by Act of Feb. 18, 1875, ch. 89, § 1, States. 18 Stat, at i., 317. The amendment As to the concurrent jurisdiction of consists in the addition of the last the Circuit and District Courts over sentence, relative to prize. these causes, see Rev. Stat., § 563, H ^ This exception relates to property 9; Id., § 639, IF 6. seized because employed in promoting ' The Sarah, 8 Wheat., 391. 136 THE JUDICIAL ORGANIZATION. of the contract or private right involved. The first class of cases, where the jurisdiction is dependent npon locality, relates to acts or injuries done on the high seas, where all nations clainj a common right and common jurisdiction, or acts or in- juries done upon the great navigable waters, whether tidal waters, rivers, or interior lakes, on which commerce is carried between different States or nations." The second class of cases includes contracts, claims, and services, purely maritime, and touching rights and duties appertaining to commerce and navigation. "The former class," says Mr. Justice Stoet,' " is again divisible into two great branches; one embracing captures, and questions of prize arising jure helli ; the other embracing acts, torts, and injuries strictly of civil cognizance, independent of belligerent operations. "By the law of nations, the cognizance of all captures, jure belli, or, as it is more familiarly phrased, of all questions of prize, and their incidents, belongs exclusively to the courts of the country to which the captors belong, and from whom they derive the authority to make the capture. No neutral nation has any right to inquire into or decide upon the validity of such capture, even though it should concern property be- longing to its own citizens or subjects, unless its own sovereign or territorial rights are violated ; but the sole and exclusive jurisdiction belongs to the courts of the capturing belligerent.' And this jurisdiction, by the common consent of nations, is vested exclusively in courts of admiralty possessing an original or appellate jurisdiction." This prize jurisdiction is vested in the District [291] Courts. They possess all the powers of a court of ad- miralty in civil cases, whether considered as an in- stance court or a prize court." The prize jurisdiction ex- tends to all captures, during war, in which naval forces are engaged. The other branch of admiralty jurisdiction dependent upon locality, respects civil acts, torts, and injuries done on the sea, or, in certain cases, on any navigable waters, without any claim of exercising the rights of war. Such are cases of assaults, and other persona] injuries ; cases of collision ; ' Abb. Nat. Dig., title Admikaltt, ' Act of June 6, 1812, 3 Stat, at L., 18-33. 761, § 6 ; The Hiawatha, Blatehf. Pr. " 3 Com. on the Const., 500. Gas., 1, 8; Jeclier v. Montgomery, 13 = See the Alerta v. Moran, 9 Craneh, Bow., 498. 356. THE DISTRICT COURTS. 137 ■cases of spoliation and damage (as they are technically called), such as illegal seizures, or depredations upon property ; cases of illegally dispossessing owners of their ships, commonly called possessory suits ; cases of seizures under municipal authority for supposed breaches of revenue laws authorizing seizures ;' and cages of salvage of property at sea. The remaining class respects contracts, claims, and ser- vices purely maritime. Among these are contracts of affreightment, or carriage by water ; the claims of material- men and others for repairs and outfits of ships belonging to other States ; bottomry bonds ; surveys of vessels damaged by perils of the sea ; pilotage, and suits for mariners' wages." This admiralty jurisdiction, which at first was construed, according to the English definitions, to extend only over tide waters, has been declared, by subsequent adjudications of the Supreme Court, to extend tO all navigable waters, through- out the country. The grounds of this most important ex- pansion of the doctrine of admiralty, and the extent to which it has been carried, will be explained at more length in a future chapter.' The enactment above quoted declares jurisdiction " Of all seizures on land and on waters not within admiralty and maritime jurisdiction." Seizures upon navigable waters are included in the civil admiralty jurisdiction, and are triable without a jury and according to the course of the admiralty. But it was held under the statutes in f brce before the revision (and there seems no reason for considering that the mere collocation of seizures on land, &c., with civil admiralty causes, in the same paragraph, imports a change), that in the trial of a case of seizure on land, the court sits as a court of common law, and not as a court of admiralty, as in the case of seizures on navigable waters. When the court is sitting in either capacity, it can not proceed in a cause which is not within its jurisdiction in that capacity. ■ Thus, if [293] when sitting in admiralty, it appear that a case brought before it was in fact a seizure on land, its juris- diction is defeated, and the libel should be dismissed, or should be amended by charging the seizure to have been ' See United States «. Three hundred * 'i Story Oom. on the Const., 501, and fifty chests of Tea, 13 Wheat., 503. 486; Burke v. Trevitt, 1 Mas., 69. ^ Book 11., ch. 1, Admiealtt. 138 THE JUDICIAL ORGANIZATION. made on land, and thereafter the procedure should be as at common law.' Sect. 83. Civil rights The act gives jurisdiction: "Of all suits authorized by law to be brought by any person for the recovery of damages, on account of any injury to his person or property, or of the deprivation of any right or privilege of a citizen of the United States, by any act done in further- ance' of any conspiracy mentioned in section nineteen hun- dred and eighty-five," Title, Civil Eights;" and: "Of all suits at law or in equity authorized by law to be brought by any person to redress the deprivation, under color of any law, ordinance, regulation, custom, or usage of any State, of any right, privilege, or immunity secured by the constitution of the United States, or of any right secured by any law of the United States, to persons within the jurisdiction thereof." In connexion with these definitions should be considered the cognate jurisdiction conferred by the act of March 1, 1875/ That act, which is entitled "An act to protect all citizens in their civil and legal rights," declares in substance that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of inns, public conveyances, theaters, and other places of public amusement; subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color ; and imposes on every person violating this provision a pecuniary forfeiture for the benefit of the person aggrieved, and punishment by fine and imprisonment It then provides : " That the District and Circuit Courts of the United States shall have, exclusively of the courts of the several States, cognizance of all crimes and offences against, and violations of, the provisions of this act ; and actions for the penalty given by the preceding section may be prosecuted in the Territorial, District, or Circuit Courts of the United ' The Sarah, 8 Wheat., 391. The District Court has jurisdiction The admiralty jurisdiction of the of proceedings wi r«TO against a vessel, District Court in revenue cases ex- to enforce a penalty for smuggling, tends only to seizures for forfeiture, and may proceed without a jury. The payment of duties can be enforced United Statep «. The Queen, 4 Ben. only by pro.ceedings on i he common 237. law side of the court. United States "^ Section 1980 is the reference in 0. Boxes of Pipes, 3 Abb. U. 8. tended. 500. * 18 Stat, at L., 336, ch. 114, § 3. THE DISTRICT COURTS. 139- States, wherever the defendant may be found, without regard to the other party ;" which provision is followed by direc- tions as to the official conduct of district attorneys, marshals, and commissioners. CHAPTER V. THE OIEOTJIT OOUETS. Feom the foregoing sketch of the District Courts, we pro- ceed to mention the leading features of the organization and jurisdiction of the tribunal next above them; the Circuit Courts. [299] Sect. 84. Organization of the Circtiits.— The Circuit Courts are organized in nine circuits, in which the districts into which the States have been divided are grouped as fol- lows : ' The First circuit includes the districts of Rhode Island, Massachusetts, New Hampshire and Maine. The Second, the districts of Vermont, Connecticut and New York. The Third, the districts of Pennsylvania, New Jersey and Delaware. The Fourth, the districts of Maryland, Virginia, West Virginia, North Carolina and South Carolina. * i%e Fifth, the districts of Georgia, Florida, Alabama, Mississippi, Louisiana and Texas. The Sixth, the districts of Ohio, Michigan, Kentucky and Tennessee. The Seventh, the districts of Indiana, Illinois, and Wis- consin. The Fiffhth, the districts of Nebraska, Minnesota, Iowa, Missouri, Kansas, Arkansas and Colorado." The Ninth, the districts of California, Oregon and Ne- vada. The act of 1869 provided for the appointment of a circuit judge in each of the nine judicial circuits. Formerly the ' R&o. Stat., § 604. ' Act of June 36, 1876, THE CIRCUIT COURTS. 141 justice of the Supreme Court allotted to a circuit was termed "the circuit judge;" but that title now more [300] particularly designates the judge to whom a special commission is issued as such ; and the member of the Supreme Court whose duty it is to attend a circuit, is desig- nated as the "circuit justice," or "justice of a circuit ;" but the word "judge," when applied generally to a circuit, iu- cludes the Supreme Court justice. There are, therefore, three judges concerned in the con- stitution of each Circuit Court, — the justice of the Supreme Court allotted to the circuit, the circuit judge appointed as such, and the judge of the district in which the Circuit Court is held. The court is held by either one of the three alone, or either two together. When together, the one first in the order in which they are above named presides. Several Circuit Courts may be held at the same time in the different districts of the same circuit. The origtual organization of the Circiiit Courts, as estab- lished by the Judiciary Act, was substantially superseded by the act of February 13, 1801, adopting a different system ; but in the following year the new system was abrogated, and the origtual system reinstated, which was, however, largely modified by the act of 1869 ; which established the system continued by the Revised Statutes. The statutes describing the organization of the Circuit Courts, definiug their jurisdiction, and prescribing the time and place of their sessions, are embodied in Title XIII. of the Revised Statutes. The sixth chapter of that title gives the organization, the seventh declares the jurisdiction, and the eighth prescribes the sessions. Sect. 85. Appellate jurisdictioa of the Circuit Courts. — [303} Having just considered the jurisdiction of the District Courts, it will be convenient, before examining the original jurisdiction of the Circuit Courts, to define the appellate jurisdiction which they exercise over the District Courts. This power is exercised, either by appeal, the appropriate process in cases of admiralty and maritime or of equity juris- diction ; or by writ of error, the proper process in common law cases ; or by mandamus, which may be issued by the Circuit Court in those cases where it is necessary to render effective its other appellate jurisdiction. The Circuit Courts have not, however, any such general supervising power over 143 THE JUDICIAL ORGANIZATION. the District Courts as to authorize the issue of this writ as an independent proceeding. The appeal given by the act of 1803, modifying section 21 of the Judiciary Act,' enables the Circuit Court sitting within the district to review any final judgment or decree in causes of equity, or of admiralty and maritime jurisdiction, except prize causes, where the matter in dispute exceeds fifty dollars in value exclusive of costs. An appeal brings up the entire cause, and enables the Circuit Court to review the law and the facts, but it can be taken only from final judgments or decrees. The Circuit Court can not exercise jurisdiction in ordinary admiralty causes, except by appeal from the Dis- trict Court. The writ of error given by section 22 of the Judiciary Act," enables the Circuit Courts within the district to review final judgments and decrees in civil actions in the District Oourt where the matter in dispute, exclusive of costs, exceeds fifty dollars in value. A writ of error removes for ex- [304] amination nothing but the law ; but on reversing a judgment on a writ of error, the Circuit Court have J)Ower to award a new trial to be had, if justice requires it, in the Circuit Court. Sect. 86. Original jurisdiction of the Circuit Courts. — Chapter seven of Title XIII. of the Revised Statutes, enumerates twenty heads of original jurisdiction of the Circuit Courts ; which, briefiy indicated, are: suits in which an alien is a party, or between citizens of different States ; suits in equity by the United States, involving more than five hundred dollars ; suits at common law by the United States, their officers, &c. ; suits under duty laws (except admiralty causes and seizures, and suits for penalties and forfeitures) internal revenue or postal laws ; suits for penalties under laws regulating carriage of passengers in merchant ships ; pro- ceedings against property seized because employed in in- surrection ; suits under slave trade laws ; certain suits upon assignments of debentures for drawback ; suits under the patent or copyright laws ; suits by or against banking asso- ciations ; suits by banking associations to enjoin comptroller ' of the currency or receiver ; suits for injuries done under revenue or election laws ; certain suits to recover possession ' Bev. Stat., § 631 ; United States ®. Wonson, 1 OaM., 6. ' Bev. Stat., § 633. THE CIRCUIT COURT. 143 of an office ; certain proceedings for removal of officers ; suits for pecuniary forfeitures under laws to enforce the elective franchise ; suits to enforce civil rights laws ; suits on account of injuries by conspirators in certain cases ; or against persons knowing to such conspiracies ; certain proceedings for punish- ment of officers and owners of vessels, through whose negli- gence life is lost ; and crimes cognizable under the laws of the United States, except, &c. Jurisdiction is also given in matters of bankruptcy, to be exercised within the limits and in the manner prescribed by law. Sect. 87. Aliens aUd citiifens. — The statute gives the Circuit Courts jurisdiction : Of all suits of a civil nature at com- mon lavs'- or in equity, where the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred doUarSj and an alien is a party, or the suit is between a citizen of the State where it is brought, and a citizen of another State ; provided, that no Circuit Court shall have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee, unless a suit might have been ptoseouted in such court to recover the said con- tents, if no assignment had been made, except in cases of foreign bills of exchange. "This is substantially a re-state- ment of the long familiar provisions of section 11 of the Judiciary Act of 1789 ; and the course of decisions under that act are applicable." For the purpose of determining the question of jurisdic- diction, the amount of the matter in dispute is deemed governed by the sum claimed in the process and plead- ings.' The provisions of the act turning on alienage and [305] citizenship have always been strictly construed. It is not enough that literally "an alien is a party;" the con- troversy must be one between a citizen of a State and an alien. Aliens, however, do not lose their right to sue by residence vrithin the United States, even in the same State with the de- fendants.' ' Abb. Nat. Big., title CrncuiT in the collection of abandoned prop- Coubt; Id., title Appbai,. erty, under the act of 1863, or the act " Abb. Nat. Dig., title Cerouit relative to commercial intercourse CoTiET 94-98. during the rebellion of 1864, or other The 'right of aliens to sustain ac- acts relative to the insurrectionary tions against the United States, or States, is restricted by the act of any person, on account of acts done July 37, 1868. 144 THE JUDICIAL ORGANIZATION. In cases where tlie suit is between a citizen of the State where it is brought and a citizen of another State, if there are several plaintiffs or defendants, each individual on each side must be within the description of the statute.' These rules, however, do not strictly apply to proceedings like bills of revivor, and proceedings founded upon judg- ments, in which, to some extent, the jurisdiction depends uj)on the citizenship of the parties to the original proceeding. 1S.QX are they to be applied to defeat the jurisdiction when the name of the party who is not subject to the jurisdiction can properly be struck out, leaving the cause to proceeid between the parties over whom the court does possess jurisdiction.' The rule in respect to corporations, — already more fully dis- cussed in considering the judicial power of the United States, — is, that an action by or against a corporation which appears in its corporate name as a party on the record is to be re- garded as a suit by or against citizens of the State which created the corporation. [306] The jurisdiction of the Circuit Court, in any of these cases, is not aflfected by the fact that a party is a foreign consul, although the Supreme Court and the District Courts are also given jurisdiction of cases against consuls.' The proviso against the courts of the United States as- suming jurisdiction merely by virtue of the assignment of things in action (other than bills of exchange), applies as well to assignments by operation of law as to transfers by act of the party.* But in the case of an assignment of property the subject of the suit, it is no objection to the exercise of the jurisdic- tion of the court that the transfer was made for the purpose of vesting the interest therein in a party competent to litigate in the Federal courts, unless the transfer is colorable only, and the real interest remains in the grantor or assignor. If the real interest was actually transferred, the court may en- tertain jurisdiction.' '^ Ahh. ITat. Dig., title Circuit '' Ahl. Nat. Big., title Circuit Court, 133-131. Court, 136-150. A citizen of the District of Co- ' Graham ». Stucken, 4 Blatehf., 50. lumbia, or of a Territory, is not a * As to the application of this pro- citizen of a State, ■within the meaning vision,' see the cases in Abb. Nat. Big., of the act. Barney v. Baltimore City, title Circuit Court, 99, &c. 6 Wall., 280. ' Barney v. Baltimore City, 6 WaU. 280. THE CIRCUIT COURT. 14.5 [307] The equity jurisdiction exercised by the Circuit Courts, under the statute above quoted, is a general jurisdiction as to subject-matter, within the limits pre- scribed as to what parties may sue and be sued. Its admin- istration depends, not upon the local law, but upon the general principles of equity recognized in the courts of Eng- land and in those States where the equity system is adminis- tered. Relief is not to be denied becaii se the State in which the court is sitting has no equity system, nor because the courts of the State, by virtue of special statutes or rules, afford a remedy of a legal nature. Sect. 88. Criminal jurisdiction. — The statute gives the Circuit Courts: "Exclusive cognizance of all crimes and offenses cognizable under the authority of the United States, except where it is or may be otherwise provided by law, and con- current jurisdiction with the District Courts of crimes and offenses cognizable therein." ' In general, where offenses are committed on land, the jurisdiction is vested only in that court within whose district they were committed, and in the case of an offense committed not within the district, it must appear that not only the ac- cused was not apprehended in the district, but also that the offense was committed out of the jurisdiction of. [308J the State, and not out of the jurisdiction of the United States." Sect. 89. Removal of causes. — ^Many classes of cases which are within the judicial power of the United States, as limited by the Constitution, have, as we have seen, been left, by the acts of Congress, within the jurisdiction of State Courts. In some such cases, however, the acts of Congress have provided that- a party to a suit in a State court, usually the defendant, may have the cause removed to the Circuit Court of the United States. The statute originally regulating such transfers was section 12 of the Judiciary Act ; which provided that an alien defendant or a citizen of one State, sued in another State, by a citizen of the latter, might, if the matter in controversy exceeds five hundred dollars, have the cause removed by petitioning the State court therefor at the time of appearing, and giving security that he will appear in the ' As to the concnrrent jurisdiction, ' For the application of these rules see United States ». Holliday, 3 Wall., and the exceptions to them, see Ml). 407. Sat. Dig., title Cikcuit Cotjkt. Vol. I.— 10 143 THE JUDICIAL ORGANIZATION. Circuit Court. A succession of later statutes, now embodied in chapter seven of title 2III. of the Eevision, have enlarged this right, materially. Their provisions, and the manner of obtaining the benefit of them, will be the subject of a later chapter. ' i CHAPTER YI. [312] THE STJPEEME OOUET. Having viewed in detail the jurisdiction and powers of the District and Circuit Courts, in whicli the greater portion of the judicial business is initiated and originally adjudicated, we now proceed to a similar view of the Supreme Court, — whose most important function, in a practical sense, is the revisal of the determinations of courts of inferior authority. Sect. 90. Relations of the Supreme Court to other courts. — The Supreme Court is not the creature of legislation. It does not ■derive its life from enactments of Congress ; though Congress prescribes its organization, and in part defines its jurisdic- tion. The Constitution itself creates the court, and vests it with inherent and independent powers, and secures to it a permanent existence. In this respect the Supreme Cour: diifers from the other courts of the national government ; which are called into existence by the will of Congress, and may by the same will be abolished. The provisions of the Constitution have already been given in full, in their connexion with provisions on cognate sub- jects. We here recur, however, to the language immediately 'affecting the Supreme Court. It is as follows : " The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from to time, ordain and establish." ' And, " In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court £313] shall have original jurisdiction. In all the other » Const, of U. 8., Art. m., § 1. 148 THE JUDICIAL ORGANIZATION. cases before mentioned, the Supreme Court shall have ap- pellate jurisdiction, both as to law and fact, with such ex- ceptions, and under such regulations, as the Congress shall make." ' Thus we see that the Supreme Court is permanently vested with the power to investigate and adjudicate, in the first instance, controversies of a certain class, rarely arising, but involving questions of peculiar delicacy, solemnity, and public importance; while in the great mass of its business it acts as an appellate tribunal, reviewing, and correcting or finally affirming the decisions rendered by tribunals of original investigation. Our view of the relations of the Supreme Court to other courts would not be complete without mentioning the powers which have been conferred upon it, by acts of Congress, to prescribe rules for, and regulate procedure in, the subordinate tribunals of the Union." Early acts " gave authority of this kind, in somewhat vague and general terms, to the court ; but the statutes by which the powers exercised in the adoption of the existing rules, were given, were the act of August 23, 1842,'— relative to procedure in suits,— and the act of March,. 2, 1867,° — relative to procedure in bankruptcy. The act of 1842 provided by, section 6 that, ' ' The Supreme Court shall have full power and authority, from time to time, to prescribe and regulate, and alter, the forms of writs and other process to be used and issued in the District and Circuit Courts of the United States, and the forms and modes of framing and filing libels, bills, answers, and other proceedings and pleadings, in suits at common law or in admiralty and in equity pending in the said courts, and also the forms and modes of taking and obtaining evidence, and of obtaining dis- covery, and generally the forms and modes of proceed- [314] ing to obtain relief, and the forms and modes of drawing up, entering, and enrolling decrees, and the forms and ' Const, of U. 8., Art. III., § ii., 3. previously mentioned. AnU, pp. 93, ^ The power of the various courts to 101. pxesoribe rules for their own prooe- ' See Act of May 8, 1793, § 3, arafe, dure, — which power is enjoyed by the p. 25; Act of May 19, 1828, |.l, ante, Supreme Court no less tljan by others, p. 48. ^and the extent to which this power, '5 Stat, at L., 516; Bev. Stat., § in the Circuit and District Courts, is 917. restricted by the rules prescribed for ' 14 Stat at L., 517; JReii. Stat., § them by the Supreme Court, have been 4990. THE SUPREME COURT. 149 modes of proceeding before trustees appointed by the court, and generally to regulate the whole practice of the said courts, so- a& to prevent delays, and to promote brevity and succinctness in all pleadings and proceedings therein, and to abolish all unnecessary costs and expenses in any suit therein." Under the authority thus given, the Supreme Court in 1842 promulgated a series of "Rules of Practice for the Courts of Equity of the United States," and, in 1844, similar "Rules of Practice for the Courts of the United States in Admiralty and Maritime Jurisdiction on the instance side of the Court," were issued. These codes of rules, with some subsequent but not very extensive modifications, form, as to all matters not regulated by statutes, the primary guides to the practitioner, in conducting the various proceedings to which they apply. The authority under which they were prescribed is continued, and the rules are now sustained by section 917 of the Revised Statutes. The Bankrupt Act of 1867 further directed the justices of the Supreme Court to frame General Orders for regulating the Procedure of the District Courts in Bankruptcy ; the forms to be used ; the duties of officers ; the fees and costs ; the practice on appeals ; the filing, custody, and inspection of records, and the carrying the Bankrupt Act into effect, generally. Greneral orders were framed accordingly ; and, being in operation when the Revised -Statutes were enacted, are, by section 4990, ratified and confirmed ; and by the same section full power to change them, is given. The rules in force under this enactment are the chief guide for details of proceedings in bankruptcy.' Sec. 91. Organization of the Supreme Court. , Although the Constitution creates, it does not organize the Supreme Court. The power of prescribing the form or organization, and, to a great extent, of defining the jurisdiction, is confided to Con- gress, while the appointment of the justices is with the President. The Judiciary Act of 1789, — under which the court was first' organized, — directed that the court should consist.of a chief justice and five associate justices, any four ' A full statement of these three clerk of the Supreme Court, at Wash- codes of rules is given in previous ington, D. C, in a pamphlet, contain- pages of this work. The rules in full ing also the full rules of procedure in are issued from time to time by the the Supreme Court. 150 THM JUDICIAL ORGANIZATION. of wTiom should be a quorum. Changes were made by- sub- sequent statutes in the number of the associate justices. The history of these changes possesses, now, but little [315] practical importance. The statutes describing the existing organization of the Supreme Court, and pre- scribing its session, are embodied in Title XIII. of the Revised Statutes, chapters nine and ten.' Sec. 92. Jurisdiction of the court. As has been already remarked, the Constitution empowers Congress to define to a considerable extent, the jurisdiction of .the, [316] Supreme Court. Original jurisdiction is directly and fully conferred in respect to two classes of cases, — those affecting ambassadors, other public ministers and con- suls, and those in which a State shall be a party. This jurisdiction cannot be divested or diminished by Congress ; nor is any action of Congress necessary before it can be- exercised. The court may proceed under the direct authority of the Constitution," and may regulate and mold the process employed, in such manner as, in the judgment of the court, will best promote the purposes of justice. ' Upon the other hand, the original jurisdiction caiinot be en- larged.* ' ' ' The members of the pourt at the Fifth Circuit, present date (Sept., 1876), are as fol- Ward Hunt, New York. Oom- lows: missioned December 11, 1873. The OMef Justice — Mobbison E. Second Circuit. Waitb, Ohio. Commissioned January The system by which justices are 31, 1874. Allotted to the Fourth alloted each to a circuit, and their Circuit. powers in holding Circuit Courts, — Nathan Cliffoed, have been already explained. See Maine. Commissiotiefl January 12, ante, p. 93. Their powers as indi- 1858. The First Circuit. vidua! judges are stated at p. 106. Noah H. Swaynb. Ohio. Com- " The supreme court exists by a missioned January 34, 1863. The different grant from the people of Sixth Circuit. their judicial power; it is exercised Samuel F. Miliee, Iowa. Com- by their authority, as their agent, missioned July 16, 1863. The Eighth selected by themselves for the purposes Circuit. specified. Rhode Island ®. Massachu- David Davis, Illinois. Commi's- setts, 13 Pet., 657. sioned December 8, 1863. The = Kentucky v. Dennison, 34 How., Seventh Circuit. 66, 98. Stephen J. Field, California. * Congress has no authority to Commissioned March 10, 1863. The assign to the Supreme Court original Ninth Circuit jurisdiction in any other cases than William Steons, Pennsylvania, those specified in the Constitution. Commissioned February 18, 1870. The distribution of original and The Third Circuit. appellate jurisdiction in that instru- J. P. Beadlbt, New Jersey. Com- ment cannot be altered or disturbed, missioned March 21, 1870. The nor the judicial power exercised in. THE SUPREME COURT. 151 But with respect to the appellate jurisdiction the case is very different. The Constitution confers this, not absolutely nor fully, but "with such exceptions and under such regula- tions as the Congress shall make." Congress may exclude such cases from the action of the court, or give such direction to the procedure of the court in the cases submitted as to Congress seems proper. The court can exercise no appellate power which is not conferred by law. ' And the jurisdiction cannot be exercised until Congress has prescribed a rule to regulate it ; and when a rule has been provided, the court cannot depart from it." To study the extent of the appellate jurisdiction we there- fore refer immediately to the acts of Congress by which it has been defined and regulated. These acts are now [317] embodied in chapter eleven of Title XIII. of the Revised Statutes. Sect. 93. Review of decisions of Circuit or District Courts. — The provisions of chapter eleven, most important to the general practitioner, are those which relate to revision of adjudica- tions of Circuit or District Courts. As to Circuit Courts, an important modification is introduced by section 8 of the act its appellate form in those cases in ' Wiscart ®. Dauchy, 3 -DaK., 331; which original jurisdiction has been United States®. Moore, 3 CVancA, 159; conferred. Marbury s. Madison, 1 Ray ®. Law, i^i!., 179; Durousaeau ®. Orartch, 137; Cohens v. Virginia, 6 United States, 6 Id., 307; Barry v. Wheat., 364; Osborn v. Bank of the Mercein, 5 Bow., 103. And see Jen- United States, Id., 738. nings e. The Terseverence, 3 Dall., The Supreme Court camnot acquire 336; Ableman v. Booth, 31 How., jurisdiction of a cause through an 506. order of a Circuit Court directing its Before examining the merits of a transfer, although such transfer may controversy brought before them in seem to be authorized by the provision the exercise of their appellate jurisdic- in section 13 of the act of June 30, tion over the decisions of the State 1864. Su,ch provision must be re- courts, the Supreme Court -will first garded as an attempt, inadvertently ascertain whether the case be within made, to give to the Si^preme Court a their jurisdiction, even though no jurisdiction withheld by the Oonstitu- objection betaken on the argument, tion. The Alicia, 7 Wall., 571. Armstrong «. Treasurer of Athens ' Crawford «. Points, 13 How., 11. County, 16 Pet., 281. And see The Lucy, 8 Wall,, 307. And if the act conferring the When Congress enacts that the jurisdiction has expired, the jurisdic- Supreme Court shall have appellate tion ceases, although the appeal or jurisdiction over final decisions of the writ of error be actually pending in Circuit Courls, in certain cases, the act the court at the time of the expiration operates as a denial or exception of of the act. A writ of error falls with such jurisdiction in other cases; and the abrogation of the statute upon the repeal of the act necessarily iiega- which it was founded. McNulty ». tives jurisdiction under it, of these Batty, 10 Ho'io., 73. cases also. Exp. McCardle, 7 Wall., 506. 152 THE JUDICIAL ORGANIZATION. of February 16, 1875;' whicli provides that, "whenever," by the laws now in force, it is required that the matter in dispute shall exceed the sum or value of two thousand dollars, ex- clusive of costs, in order that the judgments and decrees of the Circuit Courts of the United States may be re-examined in the Supreme Court, such judgments and decrees hereafter rendered shall not be re-examined in the Supreme Court, unless the matter in dispute shall exceed the sum or value of five thousand dollars, exclusive of costs. Under this modifi- cation, the statutes, stated very briefly," enable the Supreme Court, in causes involving more than five thousand dollars, exclusive of costs, to revise final judgments of a Circuit Court," in civil actions (including actions brought in from State or District Courts), by writ of error ; and final decrees of a Cir- cuit Court in cases of equity of admiralty and maritime jurisdiction upon appeal ; and further enable it to revise final judgments or decrees of a Circuit Court, entered upon a cer- tificate that the opinions of the two judges, holding the coutt, were opposed, by means of a writ of error or appeal ; * and, further, enable it to revise final decrees of a District Court in prize causes involving more than two thousand dollars, exclusive of costs, or upon certificate of the district judge that the adjudication involves a question of general import- ance ; and lastly, enable it to revise final judgments and decrees of Circuit Courts, irrespective of the amount in con- troversy, in certain cases, viz., patent and copyright suits, actions by the United States for the enforcement of a revenue law ; actions against an officer of the revenue for official acts or for recovery of money which he has collected and paid into the treasury ; suits for deprivation of a constitutional right, or right of a citizen of the United States ; and civil actions for an injury by an act done in furtherance of a con- spiracy against civil rights. ' 18 Stat, at L., 316. * In respect to revenue cases, it is " See the statutes themselves, ante, only vrhen they are brought up from p. xliii. a Circuit Court of the Uuited States, '' A District Court acting as a Cir- that the Supreme Court has jurisdic- cuit Court is included in the defini- tion irrespective of amount. When tion of jurisdiction given in the Re- the case vras brought up from a Ter- vised Statutes; and, although not ex- ritorial court, and the amount did pressly mentioned in the act of 1875, not exceed one thousand dollars, it should be deemed, we think, as mat- was held, that the appeal must be ter of construction, to be included in dismissed. United States •«. Carr, 8 the provision raising the jurisdictional How., 1. sum to live thousanc dollars. THE SUPREME COURT. 153 With reference to the question whether, in a given case, a District Court is to be deemed to have been acting as a Circuit Court or not, it has been decided that a writ [319] of error will not lie to review a judgment of a District Court, rendered in the exercise of its appropriate jurisdiction, or in rendering which it does not necessarily go beyond the proper jurisdiction of a District Court, merely because such court also possesses the powers of a Circuit Court. A Dis- trict Court, performing the appropriate duty of a District Court, is not to be considered as sitting as a Circuit Court, because it possesses the powers of a Circuit Court also. The District Courts which exercise Circuit Court jurisdiction, do not distinguish in their proceedings whether they sit as a Circuit or a District Court. That is determined by the sub- ject-matter of their judgments.' Wo review has been given in criminal cases, arising in the national courts. Neither a writ of error, writ of prohibition, nor certiorari, will lie from the Supreme Court to a Circuit Court of the United States, in a criminal case. The only method of bring- ing a criminal case into the Supreme Court, is upon a cer- tificate of the judges of the Circuit Court that their opinions are opposed upon a question raised at the trial." This is governed by sections 651 and 697 of the Revised Statutes, which provide that "when any question occurs on the trial or hearing of any criminal proceeding before a Cir- cuit Court, upon which the judges are divided in opinion," the point on which they disagree may be certified to the Supreme Court, for adjudication there. Likewise it has been decided that the Supreme Court has no power to reverse, on appeal, the imposition of' a fine decreed by the Circuit Court for contempt of it. Contempt of court is a specific criminal oifence, and the imposition of the fine was a judgment in a criminal case. But the court can take cognizance of a criminal case only upon a certificate of division in opinion.' Chapter eleven also contains some regulations of pro- cedure on writs of error and appeals ; and authorizes and regulates appeals to the Supreme Court from the Court of ' Southwick n. Postmaster-general, * Exp. Gordon, 1 Blaclf,, 503. 2 Pet., 443. Compare Durousseau », ° New Orleans «. Steamship Co., 30 United States, 6 Cranch, 307. Wall., 887. 154 THE JUDICIAL ORGANIZATION. Claims, and appeals from and writs of error to the Terri- torial Courts and the Supreme Court of the district of Columbia. [322] Sect. 94. Review of decisions of State courts.— A very- important branch of the appellate jurisdiction of the Supreme Court consists in the power conferred upon it to review decisions of State courts. A jurisdiction of this kind was conferred upon the court by section 25 of the Judiciary Act of 1789, — an enact- ment which stood unchanged until 1867, and under which many questions of the highest importance has, been adjudi- cated. In 1867, without, in terms, repealing this section, an enact- ment evidently intended as a substitute for it, was passed, but the omission of any words of repeal left open the question whether, possibly, both statutes were in force.' More recently the familiar section 25 has been repealed by the Revised Statutes ; in which the provision of the act of 1867 has been embodied in substance, and almost in exact words. The language of both these provisions is of interest to the reader ; — that of the act of 1789, because upon it depend so many important adjudications rendered in the past ; that of the act of 1867, or of the Revision, because it governs the review of the decisions of State courts, in the future. We present below the two enactments, in comparison ; indicating, by brackets, words which are omitted in the Revised Statutes, and by italics, words which are there added. « [323] Section 'iiV] of the Judicia/ry Act. TheActoflSQ^. ifes. Stot, § 709. "A final judgment or decree in any "A final judgment or decree in suit, in tlie highest court of law or any suit in the highest court of a equity of a State in which a decision State, in which a decision in the suit in the suit could be had, where is could be had, where is drawn in drawn in question the validity of a question the validity of a treaty or treaty or statute of, or an authority statute of, or ah authority exercised exercised under the United States, under, the United States, and the and the decision is against their decision is against their validity; or validity;' or where is drawn in ques- where is drawn in question the validity tion the validity of a statute of, or of a statute of, or an authority an authority exercised under any exercised under any State, on the State, on the ground of their being ground of tlieir being repugnant to = See Stewart «. Kahn, 1 Wall, 493; 591; Long v. Converse, 91 U. S. (1 Murdockc. City of Memphis, 30 Wall., Ottu), 105. THE SUPREME COURT. 155 repugnant to the constitution, treaties or laws of the United States, and the decision is in favor of such their validity, or where is drawn in ques- tion the construction of any clause of the constitution, or 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 by eitlier party, under such clause of the said constitution, treaty, statute, or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, the citation being signed by the chief justice, or judge,, or chancellor of the court ren- dering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in the Circuit Court, and the proceeding 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, pro- ceed to a final decision of the same, and award execution. But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid, than such as ap- 334] pears on the face of the record, and immediately respects the before-mentioned questions of validity or construction of the said constitu- tion, treaties, statutes, commissions, or authorities in dispute." the constitution, treaties, or laws of the United States, and the decision is in favor of [such] their validity ; or where any title, right, privilege, or immunity is claimed under the con- stitution, or any treaty or statute of, or commission held or authority exer- cised under, the United States, and the decision is against the title, right, privileges, or immunity specially set up or claimed, by either party, under such constitution, treaty, statute, commission, or authority, may be re- examined and reversed or affirmed in the Supreme Court of, the United States, upon a writ of error, [the cita- tion being signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of, or by a justice of the Supreme Court of the United States, in the same manner, and under the same regulations, and].' The writ shall have the same effect, as if the judgment or decree complained of had been rendered or passed in a court of the United States ; and the proceeding[s] upon the reversal shall [also] be the same, except that the Supreme Court may, at their dis- cretion, proceed to a final decision of the case, and award execution, or remand the same to [an inferior court] the court from, which it waa so removed. ' The substance of the provision in these brackets, is embodied in section 999 of the Revision. 156 THE JUDICIAL ORGANIZATION. Those provisions of the Constitution which declared the Constitution itself, and the laws and treaties of the United States, the supreme law of the land, and obligatory upon the judges in every State, and which extended the judicial power to all cases arising under the Constitution and laws and trea- ties of the Union, created, from the Y&yj outset, a necessity for an appellate power to review the action of State tribunals in cases involving the authority of the general government. Cases must constantly arise, in the State courts, of which they may rightfully take jurisdiction in the first instance, but in which some provision of the Constitution, or laws or treaties of the United States, may be called into question. To secure a uniform construction of these national enactments, and to maintain their paramount authority, was the object in view ia conferring that branch of the appellate power of the Supreme Court which we are now considering. Evidently, were it not for some such method, there might be one rule of construction and method of administration prevailing in the State courts, and another in the courts of the United States, resulting in irremediable confusion and conflict. The scope of our plan in the present work does not admit of our reviewing at any length the decisions which have been rendered under section 25 of the Judiciary Act, determining questions of constitutional law ; and very many cases relating to the mode of procuring a review of a State judgment must be reserved for the subject of procedure. The principles which have been determined, under the enactment in question, rela- tive to the limits of the appellate jurisdiction as defined fcy it, belong here, however. They relate principally, to the follow- ing topics. The constitutionality of the provisions of the Judiciary Act was quite early discussed and determined ; and it was held that section 25 is supported by the letter and the spirit of the Constitution. The Constitution intended that the judicial power, either in an original or appellate form, should [325] extend absolutely to all cases in law or equity arising under the Constitution, laws, and treaties of the United States, and to all cases affecting ambassadors, or. other pub- lic ministers, and consuls. The sixth article contemplates that cases within the judicial cognizance of the United States would arise in the State courts, in the exercise of their ordi- iiary jnrisdic'-ion ; and that they would incidentally take THE SUPREME COURT. 157 cognizance of cases arising under the laws and treaties of the United States. As the judicial power of the United States- extends to all such cases, it necessarily follows, by the very terms of the Constitution, that the appellate power of the courts of the United States must and does extend to the State tribunals in certain cases.' As section 25 limits the jurisdiction which it defines, to the review of a '•'■final "judgment or decree., the Supreme Court has no jurisdiction under it, unless the judgment or decree of the State court is a final one." Thus a judgment reversing that of an inferior court, and awarding a iienire facias de novo, is not a final judgment.' So the judgment of the highest court of law of a State, deciding in favor of the validity of a statute of a State, drawn in question on the gi;ound of its being repugnant to the Constitution of the United States, is not a final judgment within this section, if the suit has been remanded to the inferior State court, where it originated, for further proceedings, not inconsistent with the judgment of the highest court." So an order from the court of last resort of a State, merely affirming an order refusing to grant an in- junction, is not a final decree ; and no appeal lies from it to the Supreme Court, on the ground that it is against the validity of a right claimed under the laws of the United States. The fact that by the law of the State the order is appealable in its courts, does not affect the jurisdiction of the Supreme Court.* So a judgment of a court below, reversing the de- cision of the inferior court, and awarding a new trial, is not a final judgment, from which a writ of error will lie to the Supreme Court.' So an order affirming an order refusing a new trial is not reviewable.' So a decree upon an interlocu- tory motion, in an equity cause, to dissolve an injunc- tion, is not reviewable in the Supreme Court, upon a [326] writ of error under this section.' A decree of the highest cou^t of the State affirming an order of an inferior court, by which a motion to set aside a sheriff's return to an execution was allowed, and an alias execution awarded, is not a "final judgment." ' A decree in a court below, revers- " Martin®. Hunter, 1 Wheat., 304. ' Tracy «. Holeombe, 24 Sow., 436. ° Houston «. Moore, 3 Wheat., 433. ' Sparrow «. Strong, 4 Wall., 684. » Winn V. Jackson, 13 Wheat., 135. ' Verden v. Coleman, 18 How., 86; S. P., Pepper v. Dunlap, 5 How., 51. Moses «. Mayor, 15 Wall., 387. * Eeddall ■». Bryan, 34 Em., 430. » Wells ■«. McGregor, 13 Wall., 188. 158 THE JUDICIAL ORGANIZATION. ing a decree of foreclosure, and "remanding " the case to the inferior court for further proceedings, is not a final decree within either the judiciary act of 1789 or the act of 1867 amendatory of it, and a writ to review it should be dismissed.' Oenerally, no judgment is final which does not purport to terminate the litigation between the parties. A judgment reversing the judgment of an inferior court, and remanding the cause "for such other and further proceedings as [326] to law and justice shall appertain," does not do this." But a writ of error from the Supreme Court will lie, to review the judgment of the highest court of a State refusing .a writ of prohibition to prevent the levying of a tax which was imposed by a law repugnant to the Constitution of the United States, on the ground that the law was not repugnant to the Constitution. This is a final judgment in a suit, with- in the meaning of the statute.' And if the judgment of an inferior court of a State, against a title claimed under an act of Congress, is affirmed by a divided court above, a writ of error lies. In such case it is considered that the rulings of the circuit judge were adopted and affirmed by the judgment in the divided court, in the like manner that they would have been had both judges concurred in affirming the judgment on all the grounds assumed by the court below.* The refusal by the court of a State to allow a party to remove a case from the State court to a court of the United States, under the acts of Congress authorizing such removal, is a decision which is within the appellate jurisdiction conferred by section 25 ; and a writ of error lies to the State court.* A judgment in a State court that a judgment brought there for review 6e re- versed, or be affirmed, is one which appears to be rendered on a determination of the merits of the controversy, and is a " final judgment," within the rule, that only a final judgment can be reviewed on error (to the Uhited States Supreme Court)." , The term "suit" as employed, is a very comprehensive one, and is understood to apply to any proceeding in a court of justice, in which an individual pursues that remedy in a ' Moore v. Eobbins, 18 Wall., 588. ' Weaton v. City Council of Charles- " Saint Clair County ®. Lovingston, ton, 2 Pet., 449. 18 Wall., 638. 8. P., Parcels v. John- " Lesaieur v. Price, 12 How., 69. son, 20 Wall., 653; McComb ». Com- ' Kanouse v. Martin, 14 Sow., 23. jn'rs of Knox, 91 U. 8. (1' Otto), 1. » O'Dowd v. Russell, 14 Wall., 403. THE SUPREME COURT. 159 court of justice which the law affords him. Thus a writ of prohibition is included. In respect to what may be deemed the " MgJiest" court of . Ladd, 6 Wall., 440. Court had no jurisdictiou or authority A decision in the highest court of to re-examine, and either reverse or a State against the validity of a patent affirm the decision of the State court granted by the United States for land, on that ground. Montgomery ». Her- and whose validity is drawn in ques- nandez, 13 Wheat., 129. tion in such court, is a decision Section 35 does not give jurisdic- against the validity of an authority tion to review decisions against mere exercised under the United States, assertions of authority under the and may be reviewed; although the United States. Hence, where a party other side have also set up as their claims authority under an order of a case a similar authority whose validity couj-t of the United States, which, is by the same decision affirmed, when rightly viewed, does not pur- Reichart e. Felps, 6 Wall., 160. Com- port to confer any authority upon him, pare Eomie ». Cassanova, 91 U, 8. (1 the writ will be dismissed. Millin- Olto), 379. gar ». Hartupee, 6 Wall., 358. A writ ' Mai-tin v. Hunter, 1 Wheat, 304, of error lies to review the judgment 358. Vol. I.— 11 162 THE JUDICIAL ORGANIZATION. the authority of the general government ; and the right to re- examine it is not necessary.' "And the Supreme 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. This is not a case embraced in the Judiciary Act, which alone gives the Supreme Court power to issue a writ of error." " It is the peculiar province and privilege of the State courts to construe their own statutes ; and it is no part of the func- tions of the Supreme Court to review their decisions, or as- sume jurisdiction over them on the pretense that their judg- ments have impaired the obligation of contracts. The power delegated to the Supreme Court is for the restraint of uncon- stitutional legislation by the States, and not for the correction of alleged errors committed by their judiciary. Thus a de- cision of a State court declaring that a bauk was within [329] the purview of a general law, passed before its incor- poration, cannot be reviewed by the Supreme Court of the United States, on the ground that the law has been misconstrued, and the obligation of a contract thereby im- paired.' ' Commonwealth Bank v. Griffith, 14 Pe*., 56; Walker ». Taylor, 5 Bow., 64 ; Fulton a. McAflee, 16 Pet., 149. 'Jackson ». Lamphire, 3 Pet., 280; Satterlee v. Matthewson, 3 /(?., 380; McBride «. Hoey, 11 Id., 167. And see Withers v. Buckley, 20 Kow., 84 ; Adams ». Preston, 33 iS., 473; Med- berry ». Ohio, 34 lA., 418; Porter «. Fpley, Id., 415 ; Grand Gulf E. K. & Banking Co., «. Marshal, 12 Id., 165; Aicardi v. State, 19 WaU., 635. For a detailed statement of instan- ces in which the jurisdiction has been exercised or refused, see Abh. Nat. Dig., titles Appbai; Ekror; Su- PKBME Court. " Commercial Bank of Cincinnati d. Buckingham, 5 JBow., 317. The- Supreme Court cannot, under -section 35, review a judgment of a State court, because it was founded upon a provision of the State constitu- tion, if such provision was merely declaratory of a settled pre-existing rule of jurisprudence in the State upon which the decision brought up was chiefly based. W. Tennessee Bank v. Citizen's Bank, 13 Wall., 483 ; Baiik of W. Tennessee «. Citizen's Bank, lild., 9; Palmer «. Marston, /A, 10; Seiver J). Haskell, M., 13. When a decision holding a contract void, is made by the highest court of a State, ufnn the general principles by which courts determine that a transaction is good or bad, on nrinci- ples of public policy, the decision is one which the Supreme Court is not authorized to review. Tarver e. Keach, 15 Wall, 67. Under section 35 the Supreme Court cannot take jurisdiction of a case brought up from a State court, merely because tiie judgment of that court impairs or fails to give effect to a con- tract. To give jurisdiction, the judg- ment must give effect to some State statute, or provision of a State con- stitution, which impairs the obliga- tion of a contract. Knox v. Exchange Bank, 13 Wall., 379. Two States made an agreement as to where the boundary line between them was, and the Congress by statute gave its assent to the agreement. After this, one of the States sued a corporation of the other for taking THE SUPREME COURT. 163 " A controversy in whicli no right is claimed under tlie Constitution or laws of the United States, but which turns entirely upon the validity or interpretation of State laws, is exclusively within the jurisdiction of the State court, and no appeal lies from its judgment to the Supreme Court.' ' ' Upon principles similar to those which apply under the first and second clauses of the section,' it is held, under the third clause, -^relating to appeals in cases involving a right or authority, &c., exercised under the United States,' — that the appellate jurisdiction arises only when the State court has decided against the claim set up under the law, &c., of the United States.* The Supreme Court has no jurisdiction, if the decision of the State court b© in favor of the privilege claimed under act of Congress. To give appellate jurisdiction under section 25, the decision must be against the validity of the treaty, statute or authority, or against the right set up. " The right claimed by the appellant, and denied by the judg- ment of the State court, must be a right which, if well founded, the party might be able to assert in a court of justice, upon its own merits. The Supreme Court cannot review a decision of a State court, refusing to allow a party sued upon a contract to show, in defense, that he and the plaintiff made the contract in fraud of an act of Congress.' possession of land and water which is brought into the Supreme Court the State suing alleged were in its under section 35 of the Judiciary Act, territory. The corporation asserted that court will determine for itself the in defense, that under the agreement construction and eflect of the statute, the land and water were within the without reference to any previous jurisdiction of the other State; and adjudications of the highest court of the highest tribunal of the State in the State on the subject. Butz v. which the suit was brought decided Muscatine, 8 Wall., 575. that it was so. Held, that this was ' Congdori ». Goodman, 2 Black, but an adjudication upon the meaning 674. of the agreement, and not one upon 'Ante, p. [327, 328.] the construction of the statute; and ° That a mere as«er^io7i of authority accordingly that error would not lie is not enough; there must be a case under section 25. People ». Central involving an actual grant of power, Railroad, 12 Wall, 455. the validity of which is in question, — The question whether or not a see Millingar®. Hartupee, 6 TFaZZ., 258. State act prescribing a particular ■* McOlung «. Silliraan, 6 Wheat., mode of assessing taxes upon a par- 598; Pulton «. McAfEee, 16 Pet., 149; ticular corporation has been impliedly Walker ». Taylor, 5 How., 64; Scott repealed by a general law of the State ■». Jones, Id., 348; Reddall v. 3ryan, which does not in terms repeal it, is 24 Id., 420; Eoosevelt «. Meyer, 1 within the province of the State courts; Wall., 512. and their decision upon it is control- ' Gordon v. Caldcleugh, 3 Oranah, Jing, Bailey v. McGuire, 23 Wall, 315. 268. Where a question involving the " Walworth «. Keeland, 15 How., -construction of the statute of a State 348. 164 THE JUDICIAL ORGANIZATION. And it must be a right having some foundation in, or receiving some favor or support from the Constitution, treaties or laws of the United States. It is not enough to give jurisdiction that the act of Congress did not take away a right which pre- viously existed. Such an act cannot be said to give the right, though it may not destroy it.' But section 25 is not to [330] be so construed that a case can be regarded as arising under the Constitution or a treaty only when the right is created by the Constitution or treaty. This would defeat the obvious purpose of the Constitution, as well as the act of Congress. The language of both instruments extends the jurisdiction of the Supreme Court to rights protected by th& Constitution, treaties or laws of the United States, from what- ever source these rights may spring.' " It will be observed that the closing sentence of section 25 assigns certain limitations to the appellate jurisdiction pre- viously given. One is that no error can be considered in the Supreme Court, unless it appears on the face of the record.' The general application of this rule has been thus explained in a leading case in the Supreme Court. To give the court th& jurisdiction contemplated by section 25, two things should occur, and be apparent on the record : first, that some one of the questions stated in the section did arise in the court below ; and second, that a decision was actually made thereon, by the same court in the manner described by the section. If both of these do not appear on the record, the appellate jurisdiction fails. It is not sufficient to show that such a question might have occurred, or such a decision might have been made in the court below. It must be demonstra table that they did ex- ist, and where made. It is not, however, indispensable that it should appear on the record in totidem verbis, or by direct and positive statement, that the question was made, and the decision given by the court below, on the very point ; biit it is sufficient, if it is clear from the facts stated, by just and neces- sary infei(>nce, that the question was made ; and that the court below must, in order to have arrived at the judgment pro- nounced by it, have come to the very decision of that question ' Menard v. Afpasia, 5 Pet., 505. plied in Inglee d. Ooolidge, 3 Wheat., Compare Permoli v. First Muaici- 363; Miller «. Nicholls, 4 Id., 811; pality, 3 flow., 589. Maxwell ». Newbold, 18 How., 511; " City of New Orleans o. De Armas, Smitli s. Hunter, 7 Id., 738 ; Carter s, 9 Pet., 224, Bennett, 15 /. Villavaso, 6 Wall, 124. THE SUPREME COURT. 165 as indispensable to that judgment. The cases upon this ques- tion establish the f ollowiag rules : In order to bring a case within section 25 of the Judiciary Act it must appear on the face of the record, 1. That some one of the questions stated in that section did arise in the State court. 2. That the question was decided by the State court,' as required [331] in the same section. 8. It is not necessary that the question should appear on the record to have been raised, and the decision made, in direct and positive terms — ipsissi- mis lerbis : but it is sufficient if it appears, by clear and necessary intendment," that the question must have been ' It is not sufficient that a question under the Constitution was involved ; such question must appear to have been actually and distinctly raised, and to have been decided in the State court adversely to the plaintiff in error. The Victory, 6 Wall, 383; Hamilton Co. ®. Massachusetts, Id., 632; Farney «. Towle, 1 Black, 350; Matheson v. Branch Bank of Mobile, 1 How., 360; Crawford «. Branch Bank •of Mobile, Id., 379. Thus an objection that the court be- low did not give full faith and credit to a judgment of a sister State, does not give jurisdiction, if the provision of the Constitution on the subject, does not appear to have been invoked by him in the court below, and the right claimed uflder it brought to the notice of the court. Hoyt ®. Shelden, 1 BUuilc, 518. Where the record shows that the State court might have disposed of the case, and, for aught that appears, did decide it, without deciding any question under an act of Congress, &c., against the plaintiff in error, the Supreme Court has no jurisdiction under section 35 of the Judiciary Act. Ocean Ins. Co. ». Polleys, 13 Pet., 157. It is not enough that the record shows that the plaintiff in error claimed and contended that the judg- ment of the State court impaired the obligation of a contract, and violated the provisions of the Constitution of the United States, and that claim was overruled by the court ; but it must -appear by clear and necessary intend- ment, tijat the question was raised, _-and must have been decided in order to induce the judgment. Conimercial Bank of Cincinnati v. Buckingham, 6 How., 317; Mills ». Brown, 16 Pet., 535. But the jurisdiction may be exer- cised where a statute of the United States is technically in issue in the pleadings, or is relied on in them, and is decided against by rulings asked for and refused, even though the case may have been disposed of generally by the court on other grounds. Min- nesota V. Bachelder, 1 Wall., 109. " Tlie Supreme Court is not at liberty to resort to forced inferences and conjectional reasonings, or possi- ble, or even probable, suppositions of the points raised and actually decided by the State courts. It is to the record, and the record only, that the Supreme Court can resort to ascertain its appellate jurisdiction in cases de- cided in the cuurts of a State. Ocean Ins. Co. 11. Polleys, 13 Pet., 157. But it is not necessary the record should state in terms that the Consti- tution or a law of the Utdted States was drawn in question. It is sufficient if the record shows that the Constitu- tion, or a law of the United States, must have been misconstrued, or the decision could not have been made; or that the constitutionality of a State law was questioned, and the decision was in favor of the party claiming under such law. Where it thus ap- pears from the pleadings that the validity of the law under the Consti- tution of the United States, must have been discussed and decided in the court below, the Supreme Court will take jurisdiction. Miller «. Nicholls, 4 Wheat., 311; Wilson v. Black Bird Creek Marsli Co., 3 Pet., 345; Satter- lee 1). Matthewson, Id., 381 ; Harris v. 166 THE JUDICIAL ORGANIZATION. [332] raised, and must have been decided in order to have induced the Judgment. 4. It is not sufficient to show- that a question might have arisen or been applicable to the case, unless it is farther shown on the record that it did arise, and was applied by the State court to the case.' "In applying the rule prescribed by the statute,— that the jurisdictional question must appear by the record, — the Supreme Court will, in general, look only at the record. Whether the Supreme Court has or has not jurisdiction may be ascertained either from the pleadings, or by bill of excep- tions, or by a certificate of the court.' But the assignment of errors,' or the published opinion' of the court, cannot be reviewed for this purpose ; as these make no part of the record proper. A certificate of the presiding judge of the State court that some question falling within section 25 was Dennie, 3 Id., 392; Davis ®. Packard, 6 id., 41. And the Supreme Court may look at the record of the proceedings of the inferior State court in connection with the proceedings of the highest court, in order to deduce therefrom the points decided by tlie latter. And if it appears by the record that the con- struction of an act of Congress was in question in the inferior court, and was misconstrued there, and a deed, under which the plaintifO in error de- duced title, was declared to be void by reason of such misconstruction, and the highest court of tlie State, on this decision being excepted to, and on appeal, determined that the judgment of the Circuit Court be in all things affirmed, it must be taken that the court aflirmed the correctness of the decision thus excepted to, unless it appears on the record that they pro- ceeded on some other ground. If the record does not show that the State court in fact decided the cuse upon some other point, the Supreme Court will not infer that it was decided on another point, if such decision would be erroneous. Neilson v. Lagow, 13 Bow., 98. The record need not set out in full the clause of the Constitution, or the provision of the treaty or act of Con- gress under which the plaintiff in error olaim,s. If a case issbown which necessarily comes within the provision relied on, it is enough. Hickie s. Starke, 1 Pet., 94; Bridge Proprie- tors®. Hoboken Co., 1 Wall., 116. For some subsequent decisions as to the requisites and sufficiency of the record, the reader is referred to Mb. Nat. Dig., title Ebbob. These cases have lost much of their importance by the omission of the proviso on which they depend, from section 709 of the Revision. "Crowell ®. Randell, 10 PeS., 368. The general doctrine of this case was re-affirmed subsequently in Choteau ». Marguerite, \%Pet., 507. See, also, Bell ». Hearne, 19 Sow., 353. " Medberry v. Ohio, 34 How., A\Z\ Porter c. Foley, Id., 415; Fisher v, Cockerell, 5 Pet., 248. = Medberry ®. Ohio, 34 Eow., 413; Porter ». Foley, Id., 415. ' The general rule forbids reference to the opinion rendered in the State court, as a means of ascertaining what was decided, and thence deducing the appellate jurisdiction. Reed ». Marsh, 13 Pet., 153; Ocean Ins. Co. ®. Polleys, Id., 157; City of Mobile ». Eslava, 16 Id., 334; Medberry ». Ohio, 34 Eow., 413; Porter ». Foley, Id., 415. But in cases brought up from Louisiana, where, by a peculiarity of practice, the opinion is made a part of the re- cord, resort to it has been allowed. Grand Gulf R. R. & Banking Co. u. Marshall, 13 Row., 165; Cousin ti» Blanc, 19 Id., 203. THE SUPREME COURT. 167 drawn in question in the State court, will not aid the jurisdic- tion.' "Nor will a certificate of the clerk of the court below, that a motion was made for a new trial, and presenting reasons and certain papers filed on which the motion was founded, from the files of the court, be deemed a part of the rec- ord." "The other limitation imposed by the closing pro- [333] vision of section 25, upou the appellate jurisdiction con- ferred is, that the error must immediately respect such ques- tions as have previously been mentioned in the section. Thus, there is no jurisdiction to review the judgment of a State court, except upon an error in its decision of some one or more of the questions specified.' It is a test of the question of juris- diction that, if the court assume jurisdiction, and proceed to consider the merits of the case, they find it to involve no question either of validity or construction of treaties or statutes, &c., specified in the act.* And this principle appears applicable under the act of 1867, though that does not contain the declaratory clause of section 25. "The appellate jurisdiction of the- Supreme Court does not include authority to re-examine the whole case. They can re-examine so much and such parts of it, only, as come within some one or other of the classes of questions enumerated in the act of Congress, and so much of the case as must necessa- rily be decided to arrive at such question.' Their review of a judgment of a State court must be confined to the error alleged. They have no power to entertain questions which were not necessarily involved in the decision below.' Thus, where a party claiming a title to lands under ah act of Con- ' Eailroad Company o. Rock, 4 to judge whether a case for its juris- WalL, 177. diction exists, the writ of error must ^ Reed «. Marsh, 13 Pet., 153. be dismissed. The act requires some- So a certificate of the clerk of the thing more definite than such a cer- court in which the cause was origin- tiflcate. The statutes complained of ally tried, that a patent was read in should be stated. Lawler •«. Walker, evidence, does not make the patent a 14 How., 149. part of the record for this purpose. 'Maney b. Porter, 4 How., 55; La- Fisher «. Cockerel], 5 Pet., 248. grange «. Chouteau, ^Pet., 287; Wes- And when there is nothing on the ton ®. City Council of Charleston, 3 record to bring the case under section Pet.. 449. 25, except a certificate by the State * Gill v. Oliver, 11 How., 629. court that "there is drawn in ques- 'Montgomery o. Hernandez, 13 tion the validity of the statutes of the Wheat., 129. State of," &c., without specifying 'Mills «. Brown, 16 Pet., 525. ■ what statutes, or enabling this court 168 THE JUDICIAL ORGANIZATION. gress, brought a bill for a conveyance, and stated several equi- table circumstances in aid of Ms title, and the State court in which the suit was brought disinissed the bill, and the cause was brought to the Supreme Court, on the ground of an alleged misconstruction of the act of Congress by the State court, it was held that the Supreme Court could not take into consideration any distinct equity, arising out of the contracts or transactions of the parties, and creating a new and [334] independent title ; but they were confined to an ex- amination of the title as depending upon the construc- tion of the act of Congress.' But it is not necessarily to be understood that the question must be one confined exclu- sively and specially to the construction of the treaty, act of Congress, &c., in order to give the jurisdiction ; as this- would be too narrow a view. Points may arise growing out of, and connected with, the general question, and so blended with it as not to be separated, and, therefore, falling equally within the provisions of section 25." " Sec. 96. What State decisions may be reviewed under section 709. The case of Murdock v. City of Memphis,' drew in question what extension of authority was conferred by the act of 1867. One point adjudged in this case, viz., that the act of 1867 was a complete substitute for section 25 of 1789, and impliedly revealed it, has lost importance since the incorpora- tion of the provision in section 709 of the Revised Statutes. But the court also determined important questions respecting the scope of the act of 1867, which are equally applicable under section 709. The entire opinion deserves study ; l3ut the leading conclusions are thus summarized : ' Matthews ®. Zane, 7 Wheat. ^ 164. ^ is no jurisdiction to review a State 'Per Nelson, J., in Williains ». Oli- decision against a right or title ver, 13 Eow., 111. The cases of Smith claimed under a United States statute, ®. Maryland, 6 Oraneh, 386; and Mar- unless the plaintiff in error assert it as tin ». Hunter, 1 Wheat., 304, 355, vested in him; he cannot avail bim- afford illustrations of this principle. self of a right of a third person under *30 Wall., 591. Many other cases whom he does not claim. Jjong «. in which the jurisdiction and practice Converse, 91 U. S. (1 Otto), 105. under section 709 have been con- Where both parties to a suit for sidered, either in the aspect of what recovery of lands claimed under a authority is now vested in the Supi-eme common grantor, whose title under Court, or, what are the requisites of the United States was admitted, and the record, and when does it suffi- the only controversy was as to the ciently show the federal question, are extent of their respective rights, it exhibited in Ahbotth Nat. Digent, title was field, that no federal questiou was Bkkok: also Sdpbbme Ootjht. presented. Bomie v. Cassanova, 91 It has recently been held that there (7. A fl Otto). 379. THE SUPREME COURT. 169 First. It is essential to the jurisdiction of this court over the judgment or decree of a State court that it shall appear that one of the questions mentioned in the statute must have been raised and presented to the State court ; that it must have been decided by the State court against the right claimed or asserted by the plaintiff in error, under the constitution, treaties, laws, or authority of the United States, or that such a decision was necessary to the judgment or decree rendered in the case. Second. These things appearing, ttis court has jurisdic- tion, and must examine the judgment so far as to enable it to decide whether this claim of right was correctly adjudica- ted by the State court. Third. If it finds that it was rightly decided, the judg- ment' must be affirmed. FourtJi. If it was erroneously decided, then the court must further inquire whether there is any other matter or issue adjudged by the State court sufficiently broad to main- tain the judgment, notwithstanding the error in the decision of the Federal question. If this be found to be the case, the judgment must be affirmed without examination into the soundness of the decision of such other matter or issue." Fifth. But if it be found that the issue raised by the ques- tion of Federal law must control the whole case, or that there has been no decision by the State court of any other matter ■which is sufficient of itself to maintain the judgment, then this court will reverse that judgment, and will either render such judgment here as the State court should have rendered, or will remand the case -to that court for further proceedings, as the circumstances of the case may require. And it was adjudged that where an act of Congress calls into operative effect a provision in a deed, in virtue of which provision thus called into effect, a party claims title and right in such a way that, confessedly, but for the act, no suit would lie, the party so claiming claims a "title" and "right" "under" a statute of the United States ; and if the decision is against the title and right thus claimed, jurisdiction exists to re-examine. In Moore v. Mississippi' it was further decided that where 'Compare the earlier discussion of v. O'SuUivan, 91 TT. 8. (1 Otto), 578; this topic in Klinger n. Missouri, 13 Boiling «. Lersner, Id., 594, to the Wall., 357. same effect. '31 Wall, eSQ. See also McManus 170 THE JUDICIAL ORGANIZATION. a case is brought up from the highest court of the State under the assumption that it is within section 709 of the Kevised Statutes, if the record shows upon its face that a Federal question was not necessarily involved, and does not show- that one was raised, this court will not go outside of it— to the opinion or elsewhere — to ascertain whether one was in fact decided. Sect. 97. The appellate jurisdiction, as dependent upon value. Besides the conditions to the appellate jurisdiction of the Supreme Court which- relate to the court to be reviewed, there is one of considerable importance, which relates to the amount or value in controversy. In order to prevent the time of the highest tribunal in the nation from being occupied with trivial controversies, appellate jurisdiction is, as a general rule, made to depend, in part, upon the amount at stake in the cause. The rules of value imposed by the diiferent provisions of statute conferring jurisdiction upon the Supreme Court, and the chief exceptions in which the jurisdiction may be exercised irrespective of the amount involved, have been already stated in this chapter.' At present, it is only necessary to add a mention of the extent to which jurisdiction depends on value. It will be perceived, thit from the very nature of the rule, it contemplates that the appellate jurisdiction shall only be exercised where the subject-matter in controversy is some property or right having a pecuniary value capable of estimation. The rule requires a property value, capa- (335] ble of being ascertained and measured by the ordinary standards of value. Unless such value is shown by the ' Ante, section 93. an express prohibition, in act of Feb. The rule that a writ of error will 16, 1875, § 3, 18 Btat. at £., 316. not lie from the Supreme Court to a The amount of the judgment is not Circuit Court, unless the matter in material under section 35 of the controversy exceeds two thousand Judiciary Act (now Rev. Stat., § 709j, dollars, rested formerly upon the — which authorizes the review of principle of construction that author- decisions in the State courts, against izing an appeal where the matter is of rights claimed under laws or treaties that amount, excludes it when the of the United States. Buel v. Van amount is less. The statute gave an Ness, 8 Wheat., 313. appeal where the limit is exceeded; As to whether the jurisdiction exists this was held to raise an implication where separate libels, involved in one that, when the amount is beneath the appeal, seek to recover less than the limit named, no appeal shall lie. jurisdictional amount, taken sepa- Durousseau «. United States, 6 rately, but more, in the aggregate, Orahch, 307. It is now re-infbrced by — see The Rio Grapde, 19 Wall., 178. THE SUPREME COURT. 171 record, or by evidence aliunde, the Supreme Court lias no jurisdiction to review the judgment of the Circuit Court.' Hence, a writ of error does not lie to re-examine the judgment of a Circuit Court on a writ of habeas corpus^ The law is in- tended to confer upon the Supreme Court the right of revis- ing the decisions of the Circuit Court in those cases only where the rights of property are concerned, and the matter in dispute has a known and certain value, which can Be proved and calculated in the ordinary mode of a business transaction. This limitation upon the appellate power of the court extends to judgments iu criminal cases, although the liberty or life of the party may depend on the decision of the Circuit Court.' A claim to the guardianship of the person and property of children, not on account of any pecuniary value attached to the office, but upon other considerations, is not within the ap- pellate jurisdiction of the Supreme Court as conferred by section 22 of the Judiciary Act.' In order to give the Supreme Court appellate power under that statute, the matter in dis- pute must have been money, or some right, the value of which in money can be calculated. A controversy between father and mother for the custody of their child, was held not within the provision.* And so under a statute giving an ap- peal or a writ of error in cases "wherein the matter in dis- pute shall exceed" a specified sum, a writ of error does not lie in a criminal case. The words, "the matter iu dispute," seem appropriate to civil causes, where the subject in contest is of a value beyond the sum mentioned in the act. But in criminal cases the question is, the guilt or innocence of the accused ; and although he may be fined upward of [336} one hundred dollars, yet that is, in the eye of the law, a punishment for the oflfense, and not the particular object of the suit." Where the subject-matter in dispute was a raining claim in Nevada Territory, it was held that the writ of error ought not to be dismissed on the ground that the subject was not of the requisite value to give jurisdiction ; even though the land in which the mine existed had never been surveyed and brought ' Pratt t. Fitzhugh, 1 Black, 271. » De Kraflt n. Barney, 2 Black, 704; 'Pratt®. Fitzhugh, supra; Barry b. Ritchie «. Mauro, 2 Pet., 243. Merceirk, 5 How., 103; De Krafft c. ' Barry e. Mercein, 5 iSbw., 103. Bamey72 Black, 704. ' United States v. More, 3 Cranch, 159. 172 THE JUDICIAL ORGANIZATION. into market. It was not incapable of being valued in money on tliat account.' Where the matter in controversy was the right to an office, the salary of which was payable monthly, and the term of office was two years, and the aggregate salary would be more than the statute limit, it was held that the court had juris- diction. The fact that the salary was payable monthly made no difference — the appropriation, when made, being made for the whole sum." By "matter in dispute," in such provisions, is meant the subject of litigation — the matter for which the suit is brought, and on which issue is joined, and in relation to which jurors are called, and witnesses examined. In an action on a money demand, where the general issue is pleaded, the matter in dispute is the debt claimed ; and its amount, as stated in the body of the declaration, and not merely the damages alleged, or the prayer for judgment at its conclusion, must be consid- ered in determining the question whether the court can take jurisdiction. Reference must be had both to the debt claimed, and the damages alleged, or the prayer for judg- ment.' The verdict or judgment does not ascertain the value of the matter in dispute between the parties. To determine this, recurrence must be had to the original controversy— to the matter in dispute when the action was instituted. The de- scriptive words of the law point emphatically to this crite- rion ; and in common understanding the thing demanded, and not the thing found, constitutes the matter in dispute between the parties. If the law gives no rule, by which, on the case alleged by the plaintiff, the amount of his recovery [337] must be measured, the demand of the plaintiff must furnish one. Where the law gives the rule, the legal cause of action, and not the plaintiff ' s demand, must be re- garded.* But where the defendant brings error, the value taken is that in dispute as the case stands upon the writ of error in the Supreme Court ; not on that which was in dispute in the Circuit Court. Whatever may have been the amount claimed by the plaintiff in the court below, if the judgment in his ' Sparrow v. Strong, 3 Wall., 97. = Lee «. Watson, 1 Wall., 337. ' United States ». Addison, 33 i&w., 'Wilson «. Daniel, 3 Ball., 401, 174. 408. THE SUPREME COURT. 173 favor is for less than the prescribed sum, and the writ of error is sued out by the defendant below, the court has no juris- diction ; but if the writ of error in such case is brought by the plaintiff below, provided the amount claimed in his de- claration exceeds the statute minimum, the court has juris- diction ; because, should the judgment be reversed, he may still recover what he claims.' In Merrill ». Petty," the court, reviewing the previous dis- cussion of this subject, explained that an unbroken series of decisions has settled the following principles : First. The jurisdictional amount is to be determined by the sum in controversy at the time of the judgment in the Circuit Court ; disregarding any subsequent additions thereto, such as interest, Secooid. In cases where the plaintiff sues for an amount exceeding two thousand ° dollars, if, by reason of any erroneous ruling of the court below, he recovers nothing, or less than two thousand dollars, the sum claimed in his writ and declara- tion, is the sum in controversy. Third. If verdict is given against the defendant for a sum less than two thousand dollars, and judgment is rendered against him accordingly, nothing is in controversy between him and the plaintiff, if the plaintiff acquiesces in the judg- ment, beyond the sum for which the judgment is given ; and consequently the defendant is not entitled to any writ of error. Fourth. The language of the statute impliedly excludes all jurisdiction, in cases where the amount in controversy does not exceed two thousand dollars exclusive of costs. No stipulation between parties — such as a consent that two causes, one of which involves a sum above, and the other one below, the jurisdictional amount, may be heard together — can confer jurisdiction of a cause below the limit. If the jurisdictional facts existed at the time of issuing and serving the writ of error, by its issue and service the court obtained jurisdiction over the cause, and this jurisdiction, once acquired, cannot be taken away by any subsequent change in the value of the subject of controversy.' 'Gordon s. Ogden, 3 Pet., 33; ii., 349. Smith v. Honey, Id., 469; Knapp o. = 16 WaU.. 338. Banks, 3 Row., 73. And see Grant «. ' 'Sovi five thousand. McKee, 1 Pet., 248; Scott ». Lunt, 6 * Cooke ». United States, 3 TTaZZ., 218. 174 THE JUDICIAL ORGANIZATION. When the real value of the property in dispute does not appear by the proceedings, it is allowed to be shown by affi- davit for the purpose of determining the question of jurisdic- tion. The mode of doing this, however, and the rules govern- ing the estimation of value in particular cases, belong, more appropriately, under the subject of Peooeduee, and will there be considered. Sect. 98. Different modes of exercising appellate jurisdiction. As has been fully indicated by the preceding portions of this chapter, the leading modes in which the appellate jurisdiction of the Supreme Court is exercised, are appeal and writ of error. The distinction between an appeal and a writ of error is, that an appeal is a process of civil law origin, and removes a cause entirely ; subjecting the fact, as well as the law, to a review and revisal ; but a writ' of error is of common law origin, and it removes nothing for re-examination but {338] the law.' As respects the decisions of United States courts, the general rule is that causes of equitable cognizance, or within admiralty jurisdiction, can be brought before the Supreme Court for review only by appeal; but decisions in actions and proceedings at common law must be brought up by writ of error." But where the decision to be reviewed is one rendered by ' Wiscart ». Dauchy, 3 Ball., 321. admiralty and equity cases, and brings Compare The San Pedro, 3 Wheat., before the Supreme Court the facts as 133; United States®. Wonsou, 1 Gall.., well as the law. The San Pedro, 3 5; TJnited States v. Goodwin, 7 Wheat., 133. To the same effect, see Cranch, 108; Cohens v. Virginia, 6 TJnited States v. Haynes, 3 McLean, Wlieat., 364. 155; Westcot v. Bradford, 4 Wash. 0. " Causes of admiralty or maritime Ut., 493; United States v. Wonson, 1 jurisdiction, or suits in equity, cannot Gall., 5; Jenks ®. Lewis, 3 Mas., 503; be removed by writ of error from the Shirley d. Titus, 1 Sumn.. 4:4:1. Circuit Court for re-examination in the A mandanius issued by a territorial Supreme Court. The appropriate court to a land officer, is a proceeding •mode of removing auch causes is by at common law, and therefore to be appeal. The San Pedro, 3 Wheat., reviewed by writ of error — not by 133; McCollum v. Eager, Z Row., 61. appeal. Ward v. Gregory, 7 Pet., In this respect the manner of exercis- 633. ing the appellate jurisdiction of the A case which, in its nature, is an Supreme Courtvv'as essentially changed equitable suit, is properly brought up hy theactof 1803 (flsnie, 37), the appel- by appeal, although the laws of the late jurisdiction of the Supreme Court Territory in the courts of which it being made to conform with the emanated, abolished the distinction be- ancient and well-established principles tween cases at law and cases in equity, of judicial proceedings. The writ of and required all cases to be removed error, in cases of common law, remains from an inferior to a higher court by in force, and submits to the revision a writ of error, and not by appeal, of the Supreme Court ooly the law. Such laws cannot regulate the process The remedy by appeal is confined to of the Supreme Court. Brewster v. THE SUPREME COURT. 175 z. State court, and cognizable by the Supreme Court under the provisions of section 709 of the Revised Statutes, no such distinction as to the mode of carrying the cause up, obtains. Writ of error is the process designated by the statute to be employed in these cases. No appeal can be taken from the decision of a State Court, under these statutes ; a writ of error, alone, can bring up the cause.' Another proceeding upon which a species of appellate jurisdiction is exercised by the Supreme Court, is that known as a case certified. This proceeding was created [339] by act of April 29, 1803." It is now regulated as to ■civil causes by section 693, and as to criminal causes by sec- tion 697 of the Revised Statutes. But the decisions upon this jurisdiction as exercised under the former law are substantially applicable under the new. The provision applies only to the Circuit Courts ; and has no application to other courts. It has been explicitly decided, that when a Circuit Court is held by a justice of the Supreme Court and a circuit judge, and they are divided in opinion, the point may be certified to the Supreme Court. There is nothing in the recent legisla- tion creating circuit judges to prevent this.' The jurisdiction conferred upon the Supreme Court by this enactment is held to extend only to the single point upon which the judges holding the Circuit Court were divided.* The whole cause cannot be adjourned to the Supreme Court upon a certificate of division of opinion.' Nor wUl the Su- Wakefleld, 23 Bow., 118; Reddall v. upon a certificate of division of opin- Bryan, 24 Id., 420. And see Exp. ion of the judges of the Circuit Court Dubuque & Pacific R. R. Co., 1 WaU., for the District of Columbia. The ■69. appellate jurisdiction in respect to If a case, which, in its nature and that court extended only to the final objects, is a suit in equity, is removed judgments and decrees of the court, from a State court in Louisiana to the Ross ». Triplett, 3 Wheat., 600. Circuit Court of the United States, it 'Ins. Co. ». Denham, 11 Wall.^ 1. must be procetded with, by the latter * Wayman ». Southard, 10 Wheat., court, like other cases in equity, and 1 ; Ogle v. Lee, 2 Oranch, 33 ; Ward the proceeding to bring it to the ». Chamberlain, 3 Blaak, 430; Adams Supreme Court is an appeal, not a t. Jones, 13 Pet., 207. writ of error, Surgett o. Lapice, 8 ' United States v. Bailey, 9 Pet., How., 48. 267; Saunders ». Gould, 4 Id., 392; 'Verden «. €oleman, 33 Bow., 193; White «. Turk, 13 Id., 238. Where Lytic V. Arkans'ds, Id., 198. the certificate stated several specific "For the history of the enactment, questions, and . also a general one, in- see United States n. Daniel, 6 Wheat., volving the whole cause, the court 542. answered the former, but declined to The Supreme Court had no juris- answer the latter. Harris s. Elliott, -diction ot cases brought before it 10 Pet., 35, 176 THE JUDICIAL ORGANIZATION. preme Court sanction the breaking up of a whole case inta points, some oX which may never arise, for the purpose of bringing it before the court upon a certificate of division." The objection that the questions are several in number, and so material as to decide the whole cause, cannot prevail, how- ever, where they arise at one time, at one stage in the cause, and involve but one point. If they are several in number, and apply to different stages of the trial, and relate to independent points, a certificate is not, in general, proper ; but the ob- jection to acting on several points which dispose of the whole case is, not that the whole case may not properly be disposed of by a decision of what is certified, but that the decision must in substance be upon a single question, and not [340] upon several questions arising in several stages of the cause, and some of them anticipated." Moreover, the jurisdiction does not arise except upon an actual division of opinion between the judges below. The statute does not authorize the certificate to be made pro forma.) and for the purpose of bringing the case before the Supreme Court for consideration in the first instance ; and where it appears that this has been done, the cause will not- be considered in the Supreme Court.* And the court will decline to answer a hypothetical ques- tion, not involved in the actual controversy.* Again, this jurisdiction is given only with reference tO' questions of law. The questions certified must be questions of law, and not questions of fact ; not such as involve or im- ply conclusions or judgments by the judges, upon the weight and effect of testimony or facts adduced in the cause. Where the case was not placed before the judges below upon any general or settled principle of law, nor was their opposition in opinion founded upon a case molded and governed simply by the law, but they have divided upon a case which was, or might have been, affected by the facts heard in evidence, the influence of which facts, as controlling the obligations of the parties, fell peculiarly and properly within the province of the ' Nesmith «. Sheldon, 6 How.., 41; 'United States «. Stone, 14 Pet., Luther «. Borden, 7 M., 1; Webster 534; Webster ». Cooper, 10 How.., 54 ^ «. Cooper, 10 Id.., 54; Dennistoun v. United States «. City of Chicago, 7 Stewart, 18 /(?., 565. Id., 185 ; Exf. Gordon, 1 Blacky ^ United States v. City of Chicago, 503. 7 How., 185. " Pelham v. Rose, 9 Wall, 103. THE SUPREME COURT. . 177 jury, the Supreme Court has no jurisdiction.' Thus the question whether a jnachine is substantially like another which is patented ; " whether a charge of fraud is established ; ' and the like, cannot be carried up upon a certificate. Again, the jurisdiction does not extend to the review of an exercise of discretionary power by the Circuit Court,* nor can matters of practice resting in discretion be carried before the Supreme Court, for decision, by the proceeding.' Although the words of the act of Congress are general, that whenever any question shall occur before a Circuit Court, upon which the opinion of the judges shall be opposed, the point shall be certified, &c., yet this language cannot deemed to embrace every question that may arise in the progress of a cause, from its commencement. There may be many motions [341] made in the difl'erent stages of a cause, before trial, that cannot be brought up under a certificate of division ; such as motions for amendments, for commissions, for continuances, &o., and various other motions that arise in the progress of a suit. These, and all other questions resting in the discretion of the Circuit Court, are not to be reviewed in the Supreme Court." Thus a division of the judges of the Circuit Court, on a motion for a new trial, in a civil or criminal case, is not such a division of opinion as is to be certified to this court for its decision, under the statute. Such a motion is not a part of the proceedings in the cause. It is an application to the discretion of the court, founded on evidence which the court has heard, and which may make an impression not always to be communicated by a statement of that evidence. A division of opinion is a rejection of that motion, and the » verdict stands. To warrant a certificate, the question must be one which arises in a cause depending before the court, relative to a proceeding belonging to the cause.' But ' Dennistoun v. Stewart, 18 How.^ 543; Lanning 'o. London, 4 Wash. O. 565. And see Silliman «. Hudson Ot., 332 ; Taylor v. Carpenter, 3 River Bridge Co., 1 BlaeJe, 583. Woodb. & M., 1 ; Jones v. Vao Zandt, ^ Wilson «. Bamum, 8 Eow., 358. 5 How., 315. ° Ogilvie ». Knox Ins. Co., 18 ^o«c., Tiie Supreme Court cannot take 577. jurisdiction of a certificate of division ' Wiggins V. Gray, 34 How., 308. of opinion on a motion to quash an "Smith V. Vaughan, 10 Pet., 366; indictment (United States ■». Rosen- Packer ». Nixon, M, 408; Devereaus burgh, 7 Wall., 580), even where V. Marr, 13 WTieat., 313. And see Bank the question of the jurisdiction of the of United States ». Green, 6 Pet., 36. Circuit Court to try for the offense "Davis®. Braden, iO Pet., 386. charged, is involved. United States ' United States ®. Daniel, 6 Wheat., v. Avery, 13 Wall., 351. 178 THE JUDICIAL ORGANIZATION. although the motion^ on which a question arises, where the judges divide in opinion, was an appeal to their discretion, yet if the question on which they divide is matter of strict right, the Supreme Court has jurisdiction, and will decide all the points necessary to a decision of that question, if they arose simultaneously, and the judges differed thereon. In deciding a matter of discretion, a point may arise which is one of right, and very material. Thus a question of strict right, arising on a motion for a preliminary injunction, may be certified.' In addition to the three modes of exercising appellate ju- risdiction, already mentioned, the Supreme Court has certain powers to revise and control the action of inferior tribunals, by means of the writs of prohibition and mandamus, and by the writs of scire facias, habeas corpus, injunction, and other writs usual in Anglo-American jurisprudence. The power to issue the first two of these, is specially confprred upon [342] the Supreme Court. The power to issue the others is enjoyed by this court in common with other courts of the United States. In Exp. Yergef," the doctrine of the Constitution and of former decisions of the Supreme Court upon the exercise of appellate jurisdiction by the writ of habeas corpus, was summed up in these propositions : First. The original jurisdiction of the court cannot be ex- tended by Congress to any other cases than those expressly defined by the Constitution. Second. The .appellate jurisdiction conferred by the Con- stitution extends to all other cases within the judicial power of the United States. Third. This appellate jurisdiction is subject to such ex- ceptions and must be exercised under such regulations as Congress, in the exercise of its discretion, has made or may see fit to make. Fourth. Congress not only has not excepted writs of habeas corpus and mandamus from this appellate jurisdic- ' United States v. City of Chicago, how the decision of the Supreme 7 How., 185. Court should be carried into effect, The questions what the certificate belong more properly to the subject should contain, how the question of Procedure, and will be considered should be heard and determined, and under that head. ' 8 Wall, 85. THE SUPREME COURT. 179 tion, but has expressly provided for the exercise of this jurisdiction by means of these writs. And it was decided that the Supreme Court may, in the exercise of its appellate power, and by the employment of the writs of habeas corpus and certiorari, revise the decision of a Circuit Court, whenever such court has, in the exercise of its original jurisdiction, caused a prisoner to be brought before it, and after inquiring into the cause of detention, has remanded him to custody ; and may discharge fche prisoner from the restraint to which he has been remanded if found unwarranted by law. This power of the Supreme Court ex- tends to cases of unlawful imprisonment, generally, unless ■excluded by some limitation of the jurisdiction imposed by Congress. The mere fact that the imprisonment complained of was imposed by the order of a military and not a civil tribunal, does not exclude the case from the jurisdiction." Sect. 99. Original jurisdiction of the Supreme Court.i— No part of the judicial power of the United States is so important, elevated, and delicate in exercise, — when we look at the na- ture and gravity of the questions involved, — as the original jurisdiction of the Supreme Court. . It is this very fact which has led us to speak of it at the close, instead of at the coin- mencement of this sketch of the powers of the courts ; and which leads us now to mention it only briefly, instead of pre- senting a full view of its scope, and of the mode and limita- tions of its exercise. For, by reason of the importance and difficulty of the causes in which the original jurisdiction of the court is usually invoked, they are almost certain to be drawn into the professional charge of those who have already enjoyed both a thorough study and an extended practice in the field of national jurisprudence. They are thus, although first in intrinsic importance, the last and the most infrequent to make demand upon the practitioner's attention ; and in jthis work, which is designed as a practical guide to his course, they are, therefore, properly mentioned last in order. Much that might otherwise be here stated, has already been anticipated in describing the judicial power, and in giv- ing a general delineation of the jurisdiction of the Supreme Court. By referring to wha,t has been said upon the latter ' lUa,. Compare, on the history of this subject, Bx^. McCardle, 6 VfaU.^ the legislation and adjudications on 318. 180 THE JUDICIAL ORGANIZATION. subject, it will be seen that the Supreme Court has original jurisdiction in two classes of cases ; those affecting ambassa- dors, other public ministers and consuls ; and those in which a State shall be a party. This jurisdiction exists by the ex- press behest of the Constitution, and can neither be enlarged nor impaired by Congress. But the Constitution does not declare how far this jurisdic- tion shall be exclusive in the Supreme Court. That question is also covered by the legislation of Congress. Section 13 of the Judiciary Act of September 24, 1789,' provides that the court shall have exclusive jurisdiction where a State is [343] party, except between a State and its citizens; and except between a State and citizens of other States, or aliens, in which cases it shall have original, but not exclusive' jurisdiction ; and that the court shall have exclusively all such jurisdiction as a court can ha,ve consistently with the law of nations, of proceedings against public ministers, &c., and original, but not exclusive jurisdiction where the pro- ceeding is hy them ; or in which a consul or a vice-consul shall be a party. The particular cases in, and grounds upon which the original jurisdiction may be exercised, and the mode in which the proceedings are to be conducted, will be the subject of explanations in a future portion of the work, ' Reenacted, ifes. Stat., \ 687. BOOK II. SUBJECTS OF JURISDICTION. CHAPTER I. [347] ADMIRALTY. We hav^e now presented the leading Enactments relative to the courts of the Union ; and have given a view of the Judiciary of the United States with respect to the organiza- tion, statutory powers, and general mode of operation of the courts. Before proceeding to describe the procedure of these courts in detail, it wiU be advantageous to review the nature of some subjects of jurisdiction, or fields of jurisprudence with which the courts of the Union are chiefly or largely con- cerned. It is very trtie that almost any cause of action may, by reason of jurisdiction acquired by residence, or otherwise, become cognizable, at one time or another, in the national courts ; and it must not be imagined that the chapters com- posing this book are intended as a view of all the subjects litigated in those tribunals. There are, however, a few sub- jects, cognizance of which is, practically, drawn almost or quite exclusively within the jurisdiction of these courts ; and some, with reference to which special principles or rules ap- ply, when the litigation is in these courts. The object of the present chapters is, to explain the general features of the jurisprudence of these subjects. Others, in respect to which the national courts exercise the same powers, and proceed in substantially the same manner as the courts of the [1811 182 SUByECTS OF JURISDICTION. [348] States, should be studied in tlie various treatises appro- I priated to them. Prominent among the causes of action which are drawn within the judicial power of the United States, are those of admiralty and maritime jurisdiction. This phrase embraces a wide field ; so wide that it is convenient to give, under the present head, a view of the general nature and limits of admi- ralty jurisprudence, and to assign separate chapters to some topics which, though really branches of admiralty law, have come to. be familiarly known under their distinct names. These topics are QolUsion, Prize, Salvage, Seamen and Sliip- ping. Sect. 100. Admiralty jurisdictiou as affected by locality. We have already stated the reasons upon which admiralty juris- diction has been, by the Constitution, included in the judicial power of the United States ;' and the provision which has been made, by act of Congress, for the exercise of it by the Dis- trict Courts." The scope and general nature of the jurisdic- tion, as practised in this country, remain to be considered here. The original and primary field of admiralty jurisdiction embraces the "high seas." Acts done upon the sea; con- tracts for services upon the sea ; questions relating to pro- perty employed in navigating the sea ; such are the primary subjects of admiralty jurisdiction as understood and exercised throughout the world. This idea of the jurisdiction has been modified within different countries in view of reasons or by the operation of Causes peculiar to each ; but it is from this idea that we are to start in tracing the development of the jurisdiction as it now practically exists. Admiralty has, originally, and speaking without reference to peculiarities of any one system, jurisdiction over the seas. What is included in the term " sea" ? The open expanse of waters below low water mark, of course ; as to this no oc- casion arises for refinements or nice distinctions. And, in addition the term embraces arms of the sea, waters flowing from it into ports and havens, and forced by its tides back into the courses of the rivers.' ' Ante, p. 6. 402; De Lovio D. Boit, 2 Qail., 398, ' Ante, p. 135. 438 ; United States*. Hamilton, 1 2lfa«., ' See Waring ». Clarke, 5 Sow., 441, 152; United States e. Wiltberger, 5 ADMIRALTY. 183 In England, for a long time prior to our revolution, the course of jurisprudence upon this subject -was large- [349] ly influenced by a sentiment of distrust and disapproval which prevailed among the common law courts and lawyers, and, to a degree among the people at large, towards the courts of admiralty. They were courts of foreign origin, and were gtiided by the rules and forms, obnoxious through a long period to the English jurisprudents, of the civil law. They rejected trial by jury, and confided the determination of both fact and law to the judge. And during much of the time throughout which English jurisprudence, is, historically, the source and origin of that of this country, there was a constant effort to limit the admiralty jurisdiction, and to maintain that of courts of common law, against any possible encroachments from it. The tidal line was the extreme limit of the authority of courts of admiralty. And, while the flow of the tide might carry that jurisdiction up to high water mark, along the shore and up the bed of large streams debouching in the ocean, it was rigorously insisted that at the ebb, the maritime jurisdic- tion must recede with the waters, and the courts of law must enjoy their authority, in turn, while the soil was left bare. Moreover, as the county was in common law jurisprudence the organization or division which underlaid the political and legal administration of affairs, it was insisted that admiralty should not break the legal integrity of a county. Tide or no tide, occurrences within the body of a county were withheld from its cognizance. , Thus (until the passage of statutes too recent to be authoritative as forming a part of our law), the rule of English jurisprudence conflned admiralty jurisdiction to places without the body of a county, and within the actual flow of the tide. The earlier decisions of our courts were content to follow the view of admiralty which had thus grown up in England, and to regard the world "admiralty," in constitutional grants and statutory definitions, as meaning only that limited juris- diction which was signified by that term in the common law. But, in connection with the development of our interior com- merce, and the advance of navigation upon the lakes and WTieat., 76. 85, 101; Johnson «. S. C, Van Ness, 5; United States v. Twenty-one Bales, &c., 3 Paine, 60t ; Grush, S Mas., 390, 397. 184 SUBJECTS OF JURISDICTION. rivers of this country, far above, or wholly independent of tidal influences, reasons were perceived for discarding the re- strictions with which the common law had guarded the [350] maritime jurisdiction, and giving it the scope and ex- tent which have been assigned to it among other nations. The geographical causes which tended towards this result, found in the extent and importance of navigable waters not subject to tides, have doubtless been reinforced by others, growing out of American-political organization ; by the di- vision of the country into independent States governed by a common constitution, and engaged in a free and constant commerce and intercourse ; and'by the convenience of a resort to the constitutional tribunals for the determination of con- troversies arising from dealings and transportations extending from one State to another. The result has been that namga- Mlity., and not tide, has been made the leading test, in deter- mining what waters are within the admiralty jurisdiction, as it is understood and established in America. Without dwelling upon earlier cases, in which the ebb and flow of tide was treated as marking the limits of the jurisdic- tion, and which, so far as they depend upon that idea, are no longer authoritative, and dwelling only upon the development of the view which makes navigability the test, we find the earliest case important in this connection to be that of Waring ■a. Clarke, ' decided by the Supreme Court in 1846. This was a case of a collision which occurred upon a river at a spot within the ebb and flow of the tide, but also within the body of a county ; and it presented the quest-ion, whether, ih this country, and under the constitutional grant of admiralty powers to the Uniced States courts, places within the body of a county were to be excluded. The court held that they are not ; that county lines do not here, as in England, exclude admiralty jurisdiction. They decided that the grant of ad- miralty powers, in the Constitution^ to the courts of the United States, was not intended to be confined to such cases as belonged to the admiralty jurisdiction in England, at the time of the adoption of that instrument. Such a limitation ' 5 How., 441. See this case ap- same principle determined in New proved and followed, in Jackson B.Ttie Jersey Steam Navigation Co. b. Mer- Magnolia, 30 How., 296; The Com- chants' Bapk, 6 Som., 844, 878; Nelson merce, 1 Black, 574. See also the ®. Leland, 23 /. Bank of Attica, 31 N. 7., 406),— and limited partnerships, are prohibited by statute from making assignments with preferences. 1 Bev. Mat., 591, § 9; Id., 766, §§30, 31. 3. An assignment, although without preferences, made in contemplation of proceedings to compel the debtoi to make an assignment, instituted under the Non-imprisonment Act of 1831, is held a fraud upon that act. Spear ». Warden, 1 Oomst., 144; Hall v. Kel- logg, S Kern., 835; Wood «. Bolard, 8 Paige, 556. And one who has made an assignment with preferences is de- barred from a discharge under the in- solvent act. 3 Sell. Btat., 30, § 34. 3. After some dispute it has been set- tled that a general assignee for the ben- efit of creditors stands in no better position, and has no higher rights in respect to enforcing choses in action transferred by the assignment, than those of his assignor. He is not to be regarded us a purchaser for a valuable consideration. 'Matter of Howe, 1 Paige, 135; Mead ii. Phillips, 1 Sandf. Oh., 83; Marine & Fire Ins. Bank of Georgia ®. Jauncey, 1 Barb., 486; Le- ger V. BoDaf>e, 3 Burh., 475; Warren a. Fenn, 38 /rf., 333; Van Heusen ». Rad- clifl, 17 iV'. Y., 580; Bliss v. Cottle, 33 Id., 333; Reed ». Sands, 37 Id., 185; Maals ». Goodman, 3 Hilt., 375 ; Schieff- elin V. Hawkins, 14 Ahh. Pr., 113. Thus he takes evidences of debt subject to any offset which existed against his assignor (Chance i>. Isaacs, SPaige, 593; Maas v. Goodman, 2 Eilt., 375; and merchandise subject to any right of stoppage in transit (Harris «. Hunt, 6 Buer, 606; Harris v. Pratt, 17 JT. T., 349) ; or to any vendor's lien (Hag- gerty «. Palmer, 6 Johns. Oh., 437), which might have been enforced against his assignor. And he cannot impeach previous transfers of prop- erty made by his assignor which were binding upon the latter, although they may be voidable for fraud at the instance of creditors. Van Heusen «. RadclifE, 17 N. T., 580; Brownell v. Curtis, 10 Paige, 310; Storm v. Daven- port, 1 Sandf. Oh., 135; Osborne «. Moss, 7 Johns., 181 ; Averill «. Louoka, 6 Baii. , 470 ; Mills «. Argall, 6 Paige, 577; with which compare Bayard v.' Hoffman, 4 Johns. Oh., 450. 4. Any clauses in an assignment which confer any power or privilege upon the assignee inconsistent with tlie simple duty of converting the assets promptly into cash, an4 dis- tributing it among the creditors, or which give him a compensation or advantage therein not allowed by law, operate to defraud creditors, and are therefore held to render the assign- ment void. Upon this ground assign- ments have been condemned for giv- ing the assignee power to name his successor (Planck v. Schermerhorn, 8 Bari. Oh., 644); for giving him an extended time within wliich to per- form his duty of sale and payment (Woodburn t). Mosher, 9 Barb., 355; D'lvernois v. Leavitt, 33 Id., 63; com- pare Bellows V. Partridge, 19 Id,, 176) ; for providing in effect that he should not be personally liable for losses resulting from a mere want of ordinary diligence (Litchfield v. White, 3 Held., BANKRUPTCY. 201 Tenting fraud in its exercise ; and' the effort of the [380] <'.ourts, and the object of any additional legislation, 438; Olmstead «. Herrick, 1 E. B. Smith, 310; with which compare Van Nest V. Yoe, 1 Sand/. Gh., 4; Jacobs -0. Allen, 18 Bmi., 549) ; for providing a compensation beyond that allowed by law (Nichols v. MoEwen, 17 JV. T., 33) ; and for enabling him to vary the order of preferences. Barnum ». Hempstead, 7 Paige, 568; Boardman «. Halliday, 18 Id., 333; Strong v. Skinner, 4 Barb., 546. But clauses which merely express in terms, powers or rights which the law would confer upon the assignee, were they not expressed, — such as a provision that he may employ agents (Mann «. Whitbeck, 17 Barb., 388; Van Dine v. Willett, 34 How. Pr., 306) , that he may advertise for demands, and pay those presented within a certain time (Ward «. Ting- ley, 4 Sandf. Oh., 176; that he may pay insurance premiums and mortgage inteiest upon the property (Whitney ■V. Krows, 11 Barb., 198) ; or rent and taxes ("Van Dine a. Willett, 34 How. Pr., 306; 38 Barb., 319); or a provi- sion for his compensation which allows of its being adjusted at a sum within his legal commissions (Keteltas ». Wilson, 36 Barb., 398; 33 Bow. Pr., 69 ; Halstead ». Grordon, 34 Barb., 433; Campbell «. Woodworth, SB Id., 435; 34 iV. F.j 304); or directions as to sale or distribution which leave him at liberty to comply with the requirements of the law (Wilson v. Eobertson, 31 iV. T., 589; 19 Eoio. Pr., 350; Ogden «. Peters, 31 iV^. Y., 33; Griffln v. Marquardt, Id., 131; Jessup V. Hnlse, Id., 168; Stern «. Fisher, 33 Barb., 198; Halstead «. Gordon, 34 Barb., 433); are unobjec- tionable. See also Brigham v. Till- inghast, 15 Barb., 618; Dow .. Planter, 16 If. Y.. 563; Bellows v. Partridge, 19 Barb.', 176. 5. Assignments upon any trust which operates to secure some ulti- mate surplus or other benefit to the assignor have been declared void by 1 liev. Stat., 135, § 1; and the void trust as to the surplus avoids the whole deed and cannot be aided by extrinsic proof that there will be no actual surplus. , Goodrich «. Downs, 6 Hill, 438; with which compare Curtis ». Leavitt, 15 N. Y., 9, 114; Strong o. Skinner, 4 Ba/rb., 546 ; Barney v. GrifBn, 3 Gomst., 365; Leitch «. Hollister, 4 Id., 311; Lansing '». Woodworth, 1 Sandf. Oh., 43; Clark V. Rowling, 1 Hai SB. Supp., 105. This rule has been" applied where it was thought that the resulting trust was not intended, but arose from an inadvertent omission in drawing the assignment (Hooper s. Tuckerman, 3 Sandf.', 311) ; when the assignmentwas of partnership property, and the result- ing trust arose only indirectly through the individual interest of partners in the residue of the firm assets (Judson ». Gardner, 4, N. T. Leg. 06s., 434; Col- lomb«. Caldwell, IQ N. r.,484; Wil- son V. Robertson, 31 Id., 587; 19 How. Pr., 350; Smith ». Howard, 30 Id., 131 ; with which compare Collumb i). Read, 34 N. Y., 505) ; and when the reservation was of a sum for the sup- port of the assignor's family (Mackie ». Cairns, 5 Oow., 547; overruling Mur- ray V. Biggs, 15 Johns., 571), or to provide for payment of a loan on the way to the assignor. But cases in which property is as- signed direct to a particular creditor as a means of securing his demand (Leitch V. Hollister, 4 Gomst., 311; Hendricks v. Robinson, 3 Johns. Oh., 384; afBrmed, 17 Johns., 438; Dun- ham V. . Whitehead, 31 N. Y., 131 ;■ McClelland «. Remsen, 36 Ba^b., 633; 14^66. Pr., 331; 2S How. Pr., 175); cases in which the surplus to be re- turned is only such as may remain after paying all creditors in full (Win- tringham «. Lafoy, 7 Cow., 735 ; Van Rossum ffl. Walker, 11 Barb., 337; E y «. Cook, 18 Id., 613; Taylor •«. Ste- vens, 7 Bow. Pr., 415) ; and cases in which particular classes of property are exempted from the assignment (Carpenter v. Underwood, 19 iP". Y., 630) ; are deemed exceptions to the rule prohibiting any reservations to the assignor. 6. Provisions inserted in an assign- ment, tending to enable the debtor to exercise a future preference between 202 ^UByECTS OF JURISDICTION. [381] was to hedge the privilege with guards which might confine the debtor, in every case, to an holiest distribu- his creditors, are held to avoid the in- strument. Examples are, where the assignment preferred the creditors who should be named in a schedule to be therijafter made out and affixed (Aver- ill ». Loucks, 6 Barb.^ 470) ; where it directed that, in a certain contingency, debts enumerated in a later class should be preferred- to those mentioned in an earlier one (Sheldon t>. Dodge, 4 -Dere., 317; and where it directed that if certain creditors should refuse to release the assignor, then such creditors should >be preferred to them as the assignors should appoint. Hys- lop D. Clarke, 14 Johns., 458. 7. The endeavor to empower an as- signee to impose conditions upon creditors, before paying their demands, has fi-equently been held ground for avoiding the assignment; as where certain creditors are directed to be preferred upon the condition that they e.'recute releases of their demands (Hyslop ». Clark, 14 Johns., 458; Austin V. Bell, 30 Id., 443; Grover ». Wakeman, 11 Wend., 187; Armstrong V. Byrne, 1 Edw., 79; Lentilhon i>. MoS.-a.i, t Edw. Gh., 451; Seaving d. BrinkerhofE, 5 Johns. Oh., 339; Hone ■». Henriquez, 13 Wend., 340; Grasherie V. Apple, 14 Abb. Pr., 64); or where the assignment authorizes a surplus to ' be divided among those who will exe- cute a release. Grover ». Wakeman, 11 Wend., 187 ; Mills v. Levy, 3 Edw., 183 ; but see De Caters «. De Chau- mont, 3 Paige, 490 ; Hastings ». Bel- knap, 1 Den., 190. See also, upon the same general principle. Berry v. Riley, 3£ar6.,307: Bellows «. Partridge, 19 Id., 176; Oliver Lee & Co.'s Bank v. Talcott, 19 iV. T., 146; Bank of Sil- ver Creek v. Talcott, 22 Barb., 550; Jewett ». Woodward, 1 Edw., 195 ; Van Nest «. Yoe, 1 8andf. Oh., 4 ; Spaulding «. Strang, 36 Barb., 310. 8. Directions to an assignee to deal with the estate in a given way, in or- der to increase the amount to be real- ized from it, are another class of frauds upon creditors; that is, they are held to be fraudulent and to avoid the assignment wherever they operate to delay a sale. The Inter cases go upon the general ground that the creditors have a right to a prompt sale and distribution ol proceeds, whether a sacrifice is the result or not. With- out their consent the debtor cannot carry on his business through the me- dium of an assignee, for the purpose of increasing the ultimate fund. He may direct^ in general terms, a sale of the property, and to what debts and in what order the proceeds shall be applied ; but beyond this he can pre- scribe no condition whatever as to the management or disposal of the estate. Dunham v. Waterman, 17 jV". Y., 9. To the same effect are Van Nest «. Yoe, 1 Sandf. Oh., 4; 3 iV. T. Leg. Obs., 70; Schlussel v. Willett, 34 Barb., 615; \% Abb. Pr., 397;33.eoM. Pr., 15. 9. Akin to the last-mentioned pro- visions are clauses which empower the assignee to sell upon credit, with a view thereby to realize a larger price for the assets. As this necessarily pni- tracts the ultimate distribution until the term of credit expires, such a sale is held a fraud upon the right of the creditors to have the assets converted into money, and the money divided ■without delay. Rogers v. De Forest, 7 Paige, 373; Barney «. Griffin, 3 Gomst., 365; 8 N. T. Leg. Obs., 68; and 9 Id., 106; Nicholsons. Leavitt. 3 8eld., 610; and 6 i<^., 591; Burdsckii. Post, 3 Id., 533; Houghton ». W,pster- velt, Seld Notes, No. 1, 33 ; Porter v. Williams, 5 Seld. , 143 ; and 1 3 How. Pr., 107; Lyons v. Platner, 11 JV. Y. Leg. Obs., 87. But if the terms in which the power to sell is expressed do not necessarily import discretionary power to sell upon credit, but may be con- strued as consistent with an immediate conversion into money, the assignment is not rendered invalid. Kellogg u. Slauson, 1 Kern., 303; Whitney i>. Krows, 11 Barb., 198; Southworth «. Sheldon, 7 How. Pr., 414; Bellows v. Partridge, 19 Barb., 176; 13 N, Y. Leg. Ob.1., 319; Clark «. Fuller, 31 Barb. 138; Nichols «. McEwen, Id., 65; Wilson v. Ferguson, 10 How. Pr., 175; Clapp v. Utley, 16 Id., 384; Meacham o. Stearns, 9 Paige, 898; BANKRUPTCY. 203 tion of all available resources among his creditors. [382] In other States, as in New Jersey,' the practical diffi- ■Wilson ®. EobertsoD. 31 JV. r.,589; 19 Row. Pr., 350; Ogden «. Peters, 21 N. r., 33; Griffin b. Marquardt, J<«., 131 ; Schufeldt i>. Abernethy, 3 Duer, 533; 13 N. Y. Leg. Obs., 178; Murphy ■B. Bell, 8 Eo^B. Pr., 468. And a clause forbidding the assignee to sell upon credit, though superfluous, does not affect the asHignraent. Carpenter «. Underwood, 19 iV. T., 530; Van Eos- sum ». Walker, 11 -BorS., 387; Stern ®. Fisher, 33 U., 198. 10. In addition to the protection thrown around the rights of creditors by the principles embodied in the adju- dications above mentioned, it was deemed necessary, in 1860, for the leg- islature of New York to Interpose in their behalti and to enact that assign- ments shall be in writing and acknow- ledged and recorded; that the assign- or shall deliver to the county judge a sworn schedule containing an account of the creditors, stating their resi- dences, the sums due them respec- tively, the consideration of each debt, and any collateral security held for it, and containing also an inventoi'y of all the debtor's estate, stating incumbran- ces upon it, vouchers and securities ap- pertaining to it and its value ; that the assignee must file a bond with sureties for the faithful performance of his duty, and that an accounting may be compelled, in due season, by legal pro- ceedings for that purpose. Lawa of 1860, ch. 348. The system of restrictions which has thus grown up may be briefly stated thus: A debtor, if not a moneyed cor- poration, nor a member of a limited partnership, nor an infant, nor a person I tontemplating proceedings for an in- f, solvent's discharge, may make an as- signment indicating preferences among his creditors, if the demands proved are actual, valid, and honest; — provi- ded that he confers uo right on provi- lege upon his assignee inconsistent with the simple duty to sell and divide, nor any compensation exceeding that awarded by law; that he withholds nothing directly or indirectly, inten- tionally orinadvertencly, immediately, or remotely, for himself; that he denotes the preferences to bo made, absolutely and finally, neither reserv- ing to himself nor giving his assignee a power to modify them, nor making them dependent upon contingencies; that he abstains from any attempt to exact, or empower his assignee to exact favor from his creditors, as a condition of the payment of their div- idends; that he authorizes an imme- diate conversion of the property into cash, neither permitting the sale to be deferred to allow the assets to be nursed into greater value, nor credit to be given in hope of obtaining a higher price ; and lastly (which provi- sion opens a wide field of litigation not touched by the decisions above reviewed), that there are not in all the attendant circumstances under which the act is done, indications of an actual intent to hinder, delay or de- fraud his creditors ; — the privilege be- ing, moreover, allowed to be exercised only by means of an instrument in writing, acknowledged and recorded, and accompanied by a full disclosure of both the debit and credit sides of the assignor's afl^airs, — and even then only upon the condition that the assignee shall give bonds for the discharge of his duty, and stand liable to render an ac- count of his doings to a legal tribunal. 'The Eevised Statutes of New Jer- sey (1846, see p. 316; a,lso A'ta;. Dig., marg. p. 37) provide that every con- veyance or assignment made by a debtor, &c., in trust for creditors shall be made for their equal benefit, in proportion to their several demands, to the net amount that shall come into the hands of the assignee for dis- tribution ; that all preferences of, one creditor over another shall be deemed fraudulent and void, excepting mort- gage and judgment creditojs, when the judgment has not been by confes- sion for the purpose of preferring creditors. The act and subsequent supplements contain careful provisions exacting inventories of assigned es- tates; requiring bonds for the dis- charge of duty, by assignees; pre- scribing the course to be taken by the assignee in settling the estate, and •304: SUByECTS OF JURISDICTION. <;u]ties of the subject led to the withdrawal of the privilege of preferring creditors altogether, and to the passage of laws which deprived the debtor class of any power to control the distribution of their assets among their creditors beyond the time during which they were able to retain the administra- tion of their affairs in person. With respect to the systems of preferential assignments, the general effect of the bankrupt act is to abolish them. The cases, upon the whole, agree, and the language of the act leaves no good ground to question that the bankrupt law abrogates the right of an iasolvent debtor to prefer one creditor over another, and that any subsequently-made as- signment in trust for creditors, or other conveyance by an insolvent debtor, which operates to create preferences, even within a State whose laws have permitted such trusts, is void by the prohibitions of the act, and is of itself an act of bankruptcy upon which involuntary proceedings may be predicated. The policy of the law is to prescribe, as a uniform rule for the whole country, the equal pro rata distribution of the assets of an insolvent estate among all $he creditors (a limited preference for wages for subordinate services being the only one in favor of individuals introduced by the act), as a substitute for the systems of all preferential trust as- signments, previously used and recogni^ied in some of the States.' authorizing a compulsory accounting. Martin, 13 Wall., 40; Clark b. Iselin, Demands for wages not exceeding 21 Wall., 361; Watson ®. Taylor, id., I are made preferred debts by Act 378 ; Johnson v. Geisriter, 36 Mk., of March 15, 1855, Niat. Dig., 31. 44: Jackson v. McCuUoch, 13 BanK ' See Re Drummond, 1 Am. L. T. Beg., 383. For some contrary views Banh. S., 7; 1 BanJc. S., 10; Grow J), see Jenkins v. Mayer, 3 Biss., 303; Ballard, 1 Am. Law Times B. B., Beau ». Brookmire, 1 Bill.., 34; Israel 111: 3 Banhr. B., 69; Be Princeton, c. Ayer, 2 8. C, 344; Cookingham ®. 1 Am. Law l\mes, B. B., 135 ; Be Ferguson, 7 Blatahf., 488 ; Be Marten, Foster, Id., 137; 3 Bnnkr. B., 81; Be 13 Banh. Beg., 185; Cook v. Rogers, 13 Brodhead, Id., 93; Si^. Welch, Id., Id., 97; Shyrbck v. Bashore, Id., i81. fl; Tuttle 11. Truax, 1 Id., 169; Be Upon the more difficult question Rosenfleld, 3 Id., 49; Be Sidle, Id., whether a preferential assignment 77; JSxp. Randall, IQ Piiisb. Leg. J., made more than six months before S14; Sxp. Schick, 6 Int.- Bev. Bee., proceedings in bankruptcy are insti- 183; Bxp. Sutherland, 1 BanTcr. B., tuted, may be sustained, see Hislop ». 140; Exp. Craft, Id., 89; Ex-p. Black, Hoover, 68 N. 0., 141; Barnes v. Id., 81; Rankin ii. Florida, &c., R. R. Pelten, 8 Phil. (,Pa.), 133; Burkholder Co., Id., 196: Exp. Fitch, 2 Id., 164; «. Stump, Id., 173; Jones ». Kinney, Be Batohelder, 1 Low., 373 ; North e. 4 Banh. Beg., 650 ; Be Arledge, 1 Banh. House, 6 Bankr. Reg., 365; Barnes «. Beg., [195J 644; Be Stubbs, 4 Banh. Piiten, 8 PhU. (Pa.), 133; Toof ». Beg., 134 [376]- BANKRUPTCY. 205 The qLTiestion whether an assignment made in good faith, providing for equal pro rata payment of all [383] creditors, and valid by the laws of the State where made, is necessarily invalidated by the bankrupt laws, pre- sented greater difficulties ; and was differently decided in various cases.' But the discussion has lost much of its prac- tical importance since the enactment of the act of July 26, 1876," which declares that "no voluntary assignment by a debtor or debtors of all his or their property, heretofore or hereafter' made in good faith, for the benefit of all his or their creditors, ratably and without creating any preference, and valid according to the law of the State where made, shall, of itself, in the event of his or their being subsequently adjudi- cated bankrupts in a proceeding of involuntary bankruptcy, be a bar to the discharge of such debtor or debtors." This provision seems strongly to confirm the view that a State system of pro rata assignments as well as one of preference trusts, is contrary to the policy of the bankrupt act ; and that an assignment of either kind may be laid hold of by creditors as an act of bankruptcy on which involuntary pro- ceedings may be founded ; while it finally decides in favor of the debtor what was really the only serious question, viz., whether the making a pro rata assignment should be deemed, like creating a trust with preferences, an objection to granting a discharge. ' Claflin B. Wells, 1 Am. L. T. 'Bank. Be Stubbs, 4 Banh. Beg., [124], 376; JB., 20; 6i«*. Bev. Bee, 181; T Am. Be Burt, 1 Bill., 439; Matter of Law Beg. N. S., 163; Sedgwick «. Smith, 4 Ben., 1; if« Randall, Beady, Place, 1 Am. L. T. Bank. B., 97; 1 657; Beck v. Parker, 65 Pa. St., 262; Bank. Beg., 204; Perry «. Langley, 1 ^ Anon., 1 Pa. Law Jour. Bep., 121; Am. L. T. Bank. B., 155; 7 Am. Barnes ®. Rettew, 8 Phil, 133; Cook Law Beg. JT. 8., 429; Langley o. v. BogeTa, 13 Bank. Beg., 9T ; M.a,yer v. Perry, 8 Am. Law Beg. N. 8., 427 ; 1 Hellman, 91 U. 8. (1 Otto), 496. Be Wells, 1 Am. L. T. Bank. B., 20; "19 Stat, at L. CHAPTER III. COLLISION. Cattses of action for the collision of vessels may, for all practical purposes, be said to be exclusively within the juris- diction of the United States courts. The ground of action is in its nature essentially maritime ; being for a maritime tort — the impinging of one vessel upon another, through the willful or negligent violation of some rule of navigation. As most commonly employed, the term "collision" implies the im- pact of vessels together while they are in course of being nav^igated. But the term is equally applicable to cases where .a stationary vessel is struck by one under way ; or where one vessel is brought into contact with another by swinging at anchor. And even an injury received by a vessel at her moorings, in consequence of being violently rubbed or pressed against by a second vessel lying alongside ' of her, in conse- quence of a collision against such second vessel by a third one under way, may be compensated for, under the general head of collision, as well as an injury which is the direct re- sult of a blow, properly so called.' Sect. 107. Violation of duty essential to ^e cause of action. As has been already intimated, the ground of action, in col- lision cases, is some fault on the part of those in charge of the vessel impugned. If a collision occurs without fault in ^ the management of either vessel, by an inevitable accident, from causes which neither party could have prevented by the ' The Moxey, Abt. Adm., 73. ter vessel 'was liable for the damage. Where a vessel lying at a pier was The E. C. Scranton, 3 Ben., 35. _' injured by another vessel in an effort Compare, as to running against a made by the latter to get into a berth stationary object, here, — ^a seine, The at the next pier, by carelessness on the City of Baltimore, 5 Be7i. 474 ; 5 Am. part of the latter, — Held, that the lat- Law T., 25. [306] COLLISION. 207 ■exercise of all care and skill incumbent on them, neither ves- sel has a claim against the other, but. the loss rests where it falls.' Inevitable accident is where a vessel is pursuing a lawful avocation in a lawful manner, using the proper precautions against danger, and an accident occurs. The highest degree of caution that can be used is not required. It is enough that it is reasonable under the c rcumstances, such as is usual in similar cases, and has been found by long experience to be sufficient to answer the end in view, — the safety of life and property.' But if a collision occurs between two vessels be- cause the proper precautions were not adopted earlier, it is no defense to show that they were adopted as soon as the necessity for precaution was perceived, nor to prove that at the moment of the collision it was too late to raider such precautions of any service. Precautions must be Scjasonable." Collisions are always to be avoided when it is practicable to do so ; and the fact that one boat is in fault will not justify .another in the infliction of an injury that can be avoided by the observance of proper skill and care. And, in determining the question of fault with a view to the ascertainment of lia- bility for an injury, the proximate cause of the injury must be regarded. If that proximate cause is found in the impro- per attempt of the colliding vessel to land, or the inexcusable violence with which it was landed, the respondents are not shielded from liability by proof of negligence or fault on the part of the other vessel which had no connection with the act that produced the injury.* In the case of a collision attributable to the contributing ' Stainback «. Rae, 14 Sow., 533; juries resulting from the collision, if iThe Morning Light, 3 Wall., 550; she was otherwise without fault. The The Eliza & Abby, Blatchf. & K, Fairbanks, 9 Wall, 430. 435; The North America, 3 JVI Y. Leg. And fault on the sailing vessel's Oh^., 67; The Moxey, Ahh. Adm., 73; part, at the moment preceding a col- The Nautilus, Wftre, 3 ed., 529; The lision, does not absolve a steamer Fashion «. Wards, 6 McLean, 153 ; 1 which has suffered herself and a sail- .Newb., 8;, The Sylph, 4 Blatehf., 34; ing vessel to get into such dangerous The Olarita, 33 Wall., 1. > proximity as to cause collision. The " The Grace Girdler, 7 Wall., 196. Lucille, 15 Wall., 676. = The Johnson, 9 Wall., 146. * Mills a. The Nathaniel Holmes, 1 Yet an error committed by the ves- Bond, 353. To nearly the same effect, sel required to keep her course, after Western Ins. Co. ». The Goody the collision is inevitable, will not Friends, 1 Bond, 459; The Maria impair her right to recover for the in- Martin, 13 WaU.,tl. i 208 SUBJECTS OF JURISDICTION. fault of two vessels, by which a third person innocent of any negligence, is injured, both the vessels are liable to him.' That some neglect of duty must be established is, [386]' we believe, the rule of all the leading systems of mari- time law.' It is only where one party or both parties are in fault for the collision, that the admiralty law attempts to investigate the relative rights, and award a remedy in damages. The case does not often occur in practice, that a collision, is caused by a willful and malicious iutention to run an inno- cent vessel down. The fault ordinarily alleged in collision cases, is the careless transgression of some rule of navigation ; the neglect of some precaution or duty in the watch and guard of the ship ; the omission of some effort, reasonable under the circumstances, to avoid a collision seen to be im- pending ; or other neglect similar to these in character. Th e mere fact of a collision between two vessels does not in itself raise a presumption of negligence on the part of either ; the circumstances may be such as, upon proof of the situation of the injured vessel, to raise a presumption of want of reason- able care, caution, and skill on the part of the other.' But proof of the omission of a known legal duty is such strong evidence of carelessness and negligence, that, in every case of collision attributable to it, the offending vessel should be held 'The D. S. Gregory, 1 Ben., 236; either side; for if the fault was one S. C. »uh nom. Cavan v. The D. S. committed by the libelant alone, proof Gregory, 1 Am. L. T. U. 8. Ots., 95. of that fact is. of itself, a sufficient de- In such a case both vessels may be f ense ; or if the respondent alone corn- proceeded against in one libel, and the mitted the fault, then the libelant is damages apportioned between them entitled to recover; and if both were equally. The Washington, 9 Wall., in fault, the damages must be equally 513. Compare Atkinson ®. The R. B. apportioned between them. It is only Hamilton, 1 Bond, 536. when the disaster happens from natu- Wbere two tugs came in collision, ral causes, and without negligence or and the libellant left his own, which fault on either side, that the defense appeared to be sinking, and took to of inevitable accident can be admit- the other, and while attempting to re- ted. Union Steamship Co. «. New turn on board his own tug, he was York & Virginia Steamship Co., 24 injured, it was held, that the collision Sow., 307. was the remote, and not the proximate ' The Bridgeport, 7 Blatchf., 361. cause of his injuries to the libellant, When a vessel in motion comes into and that he could not recover. Tlje collision with one at anchor, the pre- Union, 2 Bus., 18. sumption is that the former is in fault, ' See numerous authorities cited in and she can exonerate herself only by 1 Pars. Shipp. & Adm., 525, note 2. showing that it was the fault of the The rule in the text does not apply to vessel at anchor, or caused by circum- a case where negligence or fault is stances utterly beyond her control, shown to have been committed on The Milwaukee, 2 Biss., 509. COLLISION. 209 to be altogether in fault unless clear and indisputable evidence establishes the contrary.' To establish some such fault against the vessel from which a recovery is sought, is the primary object of the practitioner in the proceed- ings in a collision case : and for this purpose a careful consi- deration of all the circumstances attending the injury, in the light of the numerous rules and adjudications governing the navigation, care and conduct of vessels," under various cir- cumstances, is requisite at the ' outset of, and, indeed, before commencing the proceeding. Sect. 108. Apportionment of the loss. In the case of a collision due to the fault of one vessel, she is chargeable with the whole loss. She must bear her own injury, and the owners of the other and innocent vessel, are entitled to compensation for the losses they have sustained." In the case of a collision due to fault on the part of both vessels, the general rule in this country is, that [387] the loss must be divided between them.* But it is not every kind or degree of fault which will bring a case within the rule ; both vessels must be Chargeable with a fault which induced or contributed to the collision. And if one vessel was clearly in fault, and the evidence to charge the other is conflicting or doubtful, no apportionment will be made." To the above, which are the ordinary cases, may be added ' Taylors. Harwood, Taney, 437. 495; The Brothers, 3 Biu., 104; see ' The reader will find the decisions this rule applied, under the circum- of the United States courts on these stances of the case, in the Wings of subjects, — which our space does not the Morning, 5 Blatohf., 15; The Bed- allow us to present here,— collected in ford, Id., 300; Cohen ». The Mary T. .4S6. iVa«.I>jy., titles Collision, Navi- Wilder, Taney, 567; Elliott v. The GATioN .and Shipping. See, also, a Volunteer, 7 Phil., 568; The Conti- compendious statement, embracing nental, 14 Wall., 345; The Atlas, 4 English as well as American cases, in Ben., 37; The Sapphire, 11 Wall, 164; 1 Pa/rs. Sliipp. & Adm., 548. Atlas «. Packet Co., 31 Wall., 389. ' The Scioto, Daveia, 359; Beeves The rule is applicable only where V. The Constitution, Oil^., 579. both vessels have been injured. The * The Catherine v. Dickinson, 17 Sapphire, 18 Wall., 51. How., 170; The Rival, 1 Spragiie, 138; And when a collision occurs between 9 Law Sep., 38, and 4 West Law J., vessels by the willful fault or inten- 89; Lennox*. Winisimmet Co., Id., tional wrong of both parties,, the dam- 160; 1 Law Bep. N. 8., 180; The Bay ages will not be apportioned, but the State, Aib. Adm., 235; 6 K Y. Ltg. libel will be dismissed. The Sylph,. Obs., 198; Foster®. The Miranda, 6 4: Blatchf., 34. McLean, 331; 1 Nmob., 337; The Gray ' Ward ®. The M. Dousman, 6 Me Eagle, 9 Wall., 505; The Louisiana, 3 Lean, 331; 1 Newb., 386. Ben., 371 ; The Magenta, 3 Abb. U. 8., Vol. L— 14 210 SUBJECTS OF JURISDICTION. a third, class of somewhat rarer occurrence, — cases in which the cause of loss is inscrutable ; that is to say, where from conflict in the evidence, it is diificult, if not impossible, to determine to what direct and specific acts the collision is to be attributed. In these cases it is held that a court of admi- ralty may apportion an equal proportion of the loss between the parties, if there is satisfactory ground for regarding both the vessels as in fault.' ' Lucas t. The Thomas Swann, 6 In The Bayard o. The Coal Valley, McLean, 382; 1 Newb., 158, and %Am. 3 Pittsb. (Pa.), 165, it -was held, that Law Beg., 659 ; The Nautilus, Ware, 3 where there is reasonable doubt as to ed., 539; James ®. The State of Maine, 'which party is to blame for a colli- 36 HunVs Mer. Mag. (March, 1857), si on, the loss must be sustained by the 336; The Comet, 1 Abb. U. aS., 451. one upon whom it has fallen. CHAPTER IV. COPYRIGHT. Ideas, considered simply as sucli, and irrespective of any form of expression in which they have been clothed, are not the subject of property, as the right of property is understood in jurisprudence. But when they are embodied in written expression, or are otherwise reduced to actual, tangible form, there may be property in them in such form. Upon general principles of law, the time, labor, and skill employed in em- bodying thoughts in a manuscript, are recognized as creating a property, just as really as that bestowed in any other skilled manufacture. An author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or who, by obtaining a copy, en- deavors to realize a profit by its publication.' ' Wheaton v. Peters, 8 Pet, 591, 656; Little v. Hall, 18 How., 165; Keene «. Wheatley, 9 Am. Law Meg., 33 ; Bartlette ». Crittenden, 4 McLean, 300; Bartlett v. Crittenden, 5 Id., 33; 7 West. Law J., 49. Thus the author of lectures has a right of prop- »i- the proprietor, but by others, provided ment of it, any more than the gift of such persons were in the employ of the a copy of a printed book is a transfer proprietor. Thus, where A., in the or abandonment of the exclusive right general theatrical employment of B., to republish it. The transfer of the was engaged in the office of assisting manuscript of a book will not, at in the adaptation of a play for repre- common law, carry with it a right to sentation, and made additions in the print and publish the work, without course of the performance of his duty, the express consent of the author; as it was held that B. became the pro- the property in the manuscript, and prietor of such additions. Keene 4i. the right to multiply the copieH, are Wheatley, 9 Am. Law Beg., 33. two separate and di.stinct interests. "We do not understand that a Stephens ». Oady, 14 Sow., 538; Bart- loritten assignment of the right to lett «. Crittenden, 5 McLean, 82; 7 take out a copyright in the first in- West. Law J., 49. stance is requisite. A transfer good " This was held in Keene v. Wheat- at common law will constitute the ley, 9 Am. Law Reg., § 3; but we transferee proprietor, and as such he understand the contrary has been may take the requisite steps to secure claimed since the act of 1870. COPYRIGHT. 217 fee a permanent resident of the country. A person tempora- rily residing here, even though he has declared his intention of becoming a citizen, cannot take or hold a copyright. ' In order to entitle one who was not born within the allegiance of the United States and has not been naturalized, to the benefit of the copyright law, he must show that at the time of record- . ing the title of the work, he was a resident of the United States : that is, that he had come to dwell within the United States with the actual intention of remaining there permanently;* but if the intent to remain permanently actually existed at the time when the title of the work was recorded, the fact that the author or proprietor afterwards changed that intent, does not avoid his copyright. In respect to what may be deemed a booJc, within the mean- ing of the copyright laws, and entitled to protection as such, it has been held that the term "book" necessarily conveys the idea of thought or conceptions clothed in language, or in characters written, printed or published. Its identity does not consist merely in the ideas, knowledge, or information . -communicated, but in the same conceptions, clothed in the same words," which make it the same composition. ' A book, within the copyright law, is not necessarily a book in the ordinary and common acceptation of the word, — i. e., a volume made up of many sheets bound together, — it may consist of matter comprised within a single sheet. The question whether the composition is within the class of works intended to be protected by the act is not to be determined by the si^e, form or shape in which it makes its appearance, but by the subject- matter of the work.* Thus, although in order to be copyrighted as a book, a work need not be a volume [394] composed of many sheets bound together, yet a mere newspaper or price current has been held not such a publication as is within the protection. The copyright laws were passed for the "promotion of science," and a mere price current, or publication of the state of the market, is not Mdthin the class of works contemplated. Such publications cannot prop- erly be called works of science. Moreover, the preliminary steps required by law to secure a copyright cannot be reason- 'Carreys. Collier, 56 Jr&s-B«9., 263. ' Stowe «. Thomas, 2 Wall. Jr. O. ' Boncicanlt v. Wood, 7 Am. Law Gt., 547 ; 2 Am. Law Beg., 339. Beg. 2f. S. 539 ; 3 Bias. 34. * Clayton v. Stone, 3 Paine, 383. 218 SUByECTS OF JURISDICTION. ably applied to a work of so ephemeral a character as a news- paper. The provisions relative to depositing a copy of the title, recording it, delivering a copy, &c., are inapplicable.' So a mere label, used by the manufacturer and vendor of a particular article, — e. g., " Chinese liniment," — to distinguish it, is not a book within the provisions of the copyright law ; and a copyright taken out for it will not serve to sustain a claim for an injunction against one who employs an imitation of it." But the word "book," is not restricted to volume. A sheet of paper containing diagrams representing a system of taking measures for,, and cutting ladies' dresses, with instruc- tions for practical use, has been held, is a "book" within the meaning of the act, and a proper subject of copyright.' Originality in all the materials of a book is not necessary. It may be the subject of a copyright, if the plan, arrange- ment, and combination of its materials are new, though the materials may be drawn from many sources, if they are for the first time brought together in a new form.* ' Clayton v. Stone, 3 Paine, 383 ; S. O., sub nom. The Price Current «. Stone, 1 Law Int. <& Bev., 69. " OofEeen ®. Brunton, 4 McLean, 616 ; 7 West. Law J., 59. ' ' Doury v. Ewing, 1 Bond, 540. Boundaries of townships are not legitimate subjects of copyright. Farmer v. Calvert, &c.-, Publishing Co., 5 Am. L. T. Sep., 168. A title separate from the publication ■which it is used to designate is not protected by the copyright law. It is only as a part of the copyrighted book, and as the title to that particular literary composition, that the title is within the provisions of the copyright act. Osgood V. Allen, 6 Am. L. T. Bep., 30. Words, which in their ordinary and universal use, denote the virtues, such as "Charity," "Faith," can not ordinarily be appropriated by any one as a title or designation for a book, play, &c., written by him. Isaacs v. Daly, 39 N. T. Superior Ot., 511. * Therefore, when an editor of an "Adams' Latin Grammar" made al- terations in, and additions to it, including notes collected from various sources, it was held, that as the col- lection and preparation of such notes required labor and intellectual exer- tion, and the plan Hud arrangement and combination of them were new, he was to be deemed the author of them in their form and arrangement, and entitled -to a copyright for them. Gray «. Russell, 1 Story 0. Oi., 11; 3 Law Sep., 394. So when the plaintiff wrote an arith- metic, the plan, arrangement, and illustrations of which he claimed to be new, it was held that the copying therefrom was a violation of his copy- right, although the materials and the Several particulars of the plan had ex- isted before in separate forms, and in separate works;, inasmuch as they had never before been united in one com- bination in the same manner ; Emerson V. Davies, 3 Story O. Ot., 768; 8 Law Sep., 370; and 4 West. Law J., 361. To what extent the subject-matter of law reports may be protected in favor of the reporter, by a copyright, has been drawn into consideration in two or three cases. It is held that no reporter has or can have any copyright in the written opinions of the judges of a court ; nor can the judges confer on any reporter any such right : judi- cial pinions being the property of the COPYRIGHT. 21» In respect to rnaps and charts it is to be observed [395] tbat as tbe natural objects from whicli a chart is made are open to tbe examination of all persons, a copyright cannot exist in a chart as a general subject. A right in such a sub- ject is violated only when another copies from the chart of him who has secured the copyright, and thereby avails himself of his labor and skill.' In respect to musical compositions it is clear that the com- position of a new air or melody is entitled to protection ; and the appropriation of the whole or any substantial part of such musical composition, without the permission of the proprietor, is piracy.' A musical composition, to be the subject of a copyright, must be, however, substantially a new and original work, and not a copy of a piece already produced, with additions and variations, which a writer of music with experience and skill coiild readily make. How far appropriation may be carried, in the arrangement and composition of a new piece of music, without amounting to infringement, is a question which must be left to the facts in each particular case. If the new air be substantially the same as the old, it is no doubt a piracy, and the adaptation of it, either by changing it to a dance, or by transferring it from one instrument to another, if the ear detects the same air in the new arrangement, will not relieve it from the penalty ; and the addition of variations makes no difference.* public, and therefore not the subject vey, the court held that though he of a copyright. But a reporter of could not have acopyright in the shoal judicial decisions may take out a itself, nor in the original elements of copyright for hia reports which will his charts, that hp could acquire one in secure his right to his head-notes, the results of his labors and surveys, statements of facts and arguments, And though he had deposited one of and notations, &c. Wheaton o. Peters, his charts in the navy department, it 8 Prf., 591, 668; Little e. Gould, 3 did not thereby bacome a public docu- BlatchJ., 165; aflBrmed on appeal, sub ment, which anyone had a right to lurni. Little v. Hall, 18 How., 165 ; copy. Blunt «. Patten, 2 Paine, 393. Same a. Gould, 3 Blatchf., 363; see See, also, upon the extent to which also, Paige v. Banks, T Blatchf ., 152; the copyright laws afford protection to 13 Wall., 608. maps, topographical surveys, &c., — In respect to copyright in ' ' letters, " Gray v. Russell, aud Emerson o. Davies, see Folsom v. Marsh, 2 Storey 0. Gt., 190. cited supra. » Blunt ». Patten, 3 Paine, 397. ' Jollie v. Jaques, 1 Blatchf., 618, Therefore, where a person, at his 625; 9 iV. T. Leg. Obs., 10._ own expense, has caused a survey to ' lb. In this case the plaintiff copy- be made of "Nantucket Shoals," in righted and published a new arrange- which he corrected errors in former ment of apiece of foreign music, under charts, and made a chart of such sur- a new title, and sued to enjoin a subse- 220 SUBJECTS OF JURISDICTION. If a musical composition is borrowed from a former [396] one, or is made up of different parts copied from older compositions, without material change, and put together into one tune, with only slight alterations or additions, the person so combining is not an "author," within the meaning of the statute. But the circumstances that the piece corre- sponds with older musical compositions, and belongs to the same style of music, do not constitute it a plagiarism, provided 5t is in its main design and in its material and important parts, the efforts of the composer's own mind.' In respect to dfamatio compositions, it has been held that the copyright laws do not extend so far as to protect mere spectacles or arrangements of scenic effects, having no literary character. An exhibition, spectacle, or scene, is not a ' ' dra- matic composition." Nor do they protect the composition of an immoral or indecent character." Sect. 110. Securing copyright. — The entry of a work for copy- right is, at the present day, regulated by sections 4956, 4957 of the Revised Statutes ; which are as follows : 4956. " Jtfo person shall be entitled to a copyriglit unless he shall, before publication, deliver at the office of the Librarian of Congress or deposit in the mail addressed to the Librarian of Congress, at Washington, District of Columbia, a printed copy of the title of the book or other article, or a description of the painting, drawing, chromo, statue, statuary, or a model or design for a work of the fine arts, for which he desires a copyright, nor unless he shall also, within ten days from the publication thereof, deliver at the office of the Librarian of Congress or deposit in the mail addressed to the Librarian of Congress, at Washington, District of Columbia, two copies of such copyright book or other article, or in case of a painting, drawing, statue, statuary, model or design for a work of the fine arts, a photograph of the same. 4957. " The Librarian of Congress shall record the name of such copyright book or other article, forthwith, in a book to quent publication of it by the defend- and the fact that plaintiff applied a ant. The court held, that upon a com- new name to the composition did not parison of the plaintiff's arrangement aid his case. with the original piece, it appeared to ' Reed «. Oarusi, Taney, 73; 8 Law be a mere adaptation, and not a sub- Mep., 4l0. Ject of copyright under our statute, — " Martinetti «. Maguire, 1 AJbb. U. 8., 356. COPYRIGHT. 231! be kept for that purpose, in the words following : "Library of Congress, to wit: Be it remembered thst on the day of i , A.B., of , hath deposited in this office the title of a book, (map, chart, or otherwise, as the case may be, or description of the article,) the title or description of which is in the following words, to wit : (here insert the title or descrip tion), the right whereof he claims as author, (originator, or proprietor, as the case may be,) in conformity with the laws of the United States resp.ecting copyrights. C. D., Librarian of Congress.' And he shall give a copy of the title or descrip- tion, under the se9,l of the Librarian of Congress, to the pro- prietor whenever he shall require it.'" Germane to these requirements, though enacted in the form of a condition, not to the obtaining a copyright but to the maintaining an action for infringement, is the enactment pre- scribing publication of the fact of entry ; which is found in section 1 of the act of June 18, 1874, and is as follows : " No person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title page vor the page immediately following, if it be a book ; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion thereof, or of the substance on which the same shall be mounted, the following words, viz. : 'Entered according to act of Congress, in the year , by A. B., in the office of the Librarian of Congress, at Washington ; ' or, at his option, the word ' Copyright,' together with the year the copyright was entered, and the name of the party by whom it was taken out ; thus— 'Copyright, 18—, by A. B.' " ' ' And section 4958 prescribes fees Under former laws, prescribing of librarian for recording title, 50 cts. ; requirements analogous to those in the for copy of record, 50 cts. text, it was held that where the title- " 18 Stat, at L., 78. This enact- page of a book was deposited in 1846, ment must be deemed, upon the priu- and the notice of the entry inserted in ciples of construction of revising the book- stated it to have been depos- Btatutes, so clearly stated in Murdock ited in 1847, the error created a fatal ®. City of iHemphis, 30 Wall., 591, to defect in the plaintifE's title ; and the be a complete substitute for and im- fact that the error arose from mere plied repeal of section 4957 of the mistake made no diSereuce. Baker Beeised Statutes. v. Taylor, 2 Blatchf., 83. And wherft 322 SUBJECTS OF JURISDICTION. Sect. 111. Renewals. — The title of the plaintiff in a copy- [398] right suit may require to be established under the pro- visions authorizing renewals, though these cases are, practically, of infrequent occurrence. They are more likely, for some years to come, to arise under the act of 1831, which provided' that if, at the expiration of a copyright, the author, inventor, designer, engraver, or any of them, where the work has been originally composed and made by more than one person, be still living, and a citizen or citizens of the United States, or resident therein, or being dead, shall have left a widow, or child, or children, either or all then living, the same exclusive right shall be continued to such author, designer, or engraver, or, if dead, then to such widow and child, or children, for the further term of fourteen years ; provided, that the title of the work so secured shall be a second time recorded, and all such other regulations as are required by the act, in regard to original copyrights, be complied with in respect to such renewed copyright, and that within six months before the expiration of the first term. And the author or proprietor is required " within two months from the renewal to cause a copy of the record to be published in one or more of the newspapers printed in. the United States, for four •weeks.' Where a claim to a renewal of a copyright is the ground of action, it necessarily involves the validity of the right under the first as well as the second term. In the [399] language of the statute, the " same exclusive right," is continued the second term, that existed the first.* The right granted of extension or renewal is for the benefit •of the author and his family ; and an assignee of the original copyright cannot take out the second or extended term, unless the title was not deposited, nor tbe same record may be inserted in another copy of the work delivered, until edition of the same work, published some years after the publication, it in a different number of volumes, was held that no cppyright was ob- "without impairing the copyright, iained. Dwight ®. Appleton, 1 N. Y. Leg. But where a work is published in Obs.. 195. several volumes, at different times, ' Section 2. 4 Stat, at L., 436. the insertion of the record in the page ' By section 3. 4 Btat. at L., 437. next following the title-page of the ' The mode of renewing a copyright, first volume of the work, is a suflScient now-a^days, is regulated by section compliance with the provisions of the 4954 of the Beviaed Statutes. statute to secure the whole work. The * Wheaton«. Peters, 8 Pet., 691,663. COPYRIGHT. 223 he has paid for it, clearly contracted for it, and is ttntifcled in equity to be protacted in it. An assignment of an existing copyright, without words looking beyond the existing term, and without a consideration, extending beyond that, is not to be extended by construction to pass the right to a renewal ; nor does a usage among booksellers to regard the renewal as passing by such assignment aflfect the question, unless the parties are both acquainted with the usage, or belonged to the trade.' But, while facts must be shown in addition to the bare as- signment of a copyright, indicating that the parties intended, and the equity of the case requires, a transfer of the renewal to the assignee, yet, where this is shown, the courts will enforce the right of the assignee in that respect. The privilege •of securing a renewal is not incapable of assignment.' Sect. 112. Assignments. — LTot only the original proprietor, but the assignee of a copyright, may be the plaintiff in an action for infringement. Although an assignment of literary property, as distinguished from a copyright, may be by de- livery only, this is not so of a copyright. A written as- [400] signment is necessary ; and it should be recorded. ' And there must be a transfer of the copyright, as distinguished from a sale of the mechanical instruments, — such as engraved or stereotype plates, — employed in the publication of the ' Pierpont e. Fowle, 3 "WooSb. & ferred ; and, in proof, read by consent J/., 23. Therefore, where A. employed a deposition of the author, taken in^ a B. to compile a school-book, and previous action by the assignees against Agreed to pay him $500, and B. con- an infringer, in which, being examined veyed to A. the copyright, it was held on the voir dire, he stated that to have that only the copyright then existing been the understanding. The court or taken out passed under the con- held that the original assignment must tract. be reformed, so as to give effect to the " Cowen v. Banks, 24 Hmo. Pr., 72. real agreement of the parties, and vest In this case the administratrix of an the entire property in the assignees; author deceased filed a bill to restrain and that the bill to restrain them must assignees of the copyright, taken out be dismissed. under the act of 1790, on the ground See, also, Paige v. Banks, 7 Blatchf., that their right expired with the orig- 15a; 13 Wall., 608. inal term, and that the author or his ' See act of June 80, 1834, 4 Stat. representatives, and not the assignees, at L., 728; Bev. Stat., 4954. It has, were enlitled to the extension given however, been held that under the by the act of 1831. The assignees filed copyright act a picture may be trans- a cross bill to reform the assignment, ferred by oral contract; and such sale alleging that the understanding of the of a picture gives the vendor the right parties to the original assignment was, to reproduce it and to enjoy a copy- that the entire interest was trans- right therein. Parton «, Prang, 5 .4?». L. T. Bep., 105, 224 SUBJECTS OF JURISDICTION. work. The property acquired by a purcliase of such plates- is an essentially different thing from the copyright.' Sect. 113. Infringement.^Two remedies are given for the infringement of a copyright, an action at law for statute pen- alty and damages ; and a bill in equity to enjoin the further publication of the piratical work." [401] The question what amounts to an infringement is, however, determined by the same considerations, whether the remedy at law or that in equity, be pursued. In respect to the/orOT in which the work complained of as an infringement appears, it is, as a general rule, a matter of no importance upon the question of infringement, in what form the works of another are used ; whether by a simple reprint, or by incorporating the whole or large portions in some other work.' But it is not sufficient, to constitute a piracy of a copyright, to show that one work may have been suggested by another, or that some parts or pages of it-have resemblances, either in method, details, or illustrations. It must be further shown that such resemblances are so close, full, uniform and striking, as to lead to the conclusion that the one is a substantial copy of the other, or mainly borrowed from it. The question is, whether the work com- ' Thus the sale of a copper-plate for adjudicated in a court of equity with- a map, on an execution against the out having first been determined at owner of the copyright of the map, law. Farmer ». Calvert, &c., Pub- does not pass to the purchaser a right lishing Co., 5 Am. L. T. Rep., 168. to use the copper-plate to print such It has also been held that the right maps. Stephens v. Cady, 14 How., conferred by that act, as to books, or 538; Stephens ©.Gladding, 17 Id., by Act of 1856, as to dramas, to bring 447. See, also, on the rights of as- an action at law for infringement, signees, under limited or partial as- may arise before actual publication signments, Roberts ■». Myers, 13 Law of the work by the author or proprie- JBep. Jf. 8., 396; Keene v. Wheatley, 9 tor. If the steps required by the act Am. Law Meg., 46; 4 Phil., 157; Pulte to be taken in order to secure a copy- v. Derby, 5 McLean, 838. right, have been duly performed, " See Itev. Stat., § 4964-71. Under within the time prescribed, an action the act of 1831, it was held that the at law may be maintained for an in- slatute penalty imposed was not in- fringing publication made after the purred by printing and publishing part recording of the title of the work, by only of a book. The words "a copy the author or proprietor, although of a book," import a trauscript or copy before actual publication by him. of the entire book. Congress did not Boucicault «. Wood, 7 Am. L. Beg. N. intend to inflict the penalty upon the S., 539; 2 Biss., 34. unlawful printing or publication of less 'Gray v. Russell, 1 Btory C. Gt., than an entire work. Rogers ». Jew- 11 ; 3 Law Hep., 394. ett, 3 Law Sep., 340. To photograph an engraving is an Infringement of a copyright may be infringement. Rossiter «. Hall, 5 Blatchf., 363. COPYRIGHT. 225 plained of is a servile, evrasive imitation of the plaintiff ' s, [402] or a 'bona fide, original compilation.' The true inquiry is, whether the work alleged to be a piracy is substantially the same as that copyrighted ; mere colorable variations intended to evade liability for an infringe- men fc will not destroy the legal identity of the two. If a ma- terial part of the copyrighted publication is used, the alleged piratical work, though it may be in some respects an im- provement, is an infringement." The application of this principle varies, however, some- what with the nature of the work under consideration. In the case of a work of purely original authorship, much less imitation, similarity, or quotation can be tolerated, than in works belonging to the class called compilations. Some simi- larities, and some use of prior works, even to the Copying of small parts, are tolerated in such books as dictionaries, gazet- teers, grammars, maps, arithmetics, almanacs, concordances, cyclopedias, itineraries, guide-books, and similar publica- tions, if the main design and execution are in reality novel and improved, and not a mere cover for important piracies. In compiling such works, the materials of all, to a consider- able extent, must be the same. Novelty and improvement can be substantial in scarcely any case, unless the matter is abridged, or a material change made, in the arrangement, or more modern information is added, or errors are corrected, or omissions supplied. But while a prior compiler cannot monopolize what was not original with himself, and what must be nearly identical in all similar \yorks on the same subject, a.subsequent compiler cannot employ a prior arrange- ment and materials so much as amounts to a substantial inva- sion of the former compilation.' The question of the motive of defendant has not much to do with the question of infringement, except in balanced cases. If a comparison of the two works indicates clearly that the defendant, in the preparation of his work, has in fact made use of the plaintiff' s to an extent unwarranted by law, the absence of an intent to violate the law will not relieve him ' Emerson v. Davies, 3 Story 0. Ot., ' Drury «. Ewing, 1 Bond, 540. 768, 787; 4 West. Law J., 261. And see « Webb v. Powers, 3 Woodb. & M., Greene v. Bishop, 1 Oliff., 186. 497, 513; 10 Law Sep., 153. Vol. I.— 15 226 SUBJECTS OF JURISDICTION. from the consequences of Ms acts." , But if it be doubtful whether much of the plaintiff 's work has been actually cop- ied, and whether the new work is a mere substitute, the intent not to pilfer from another, colorably or otherwise, the substantial parts of the new work, may be important." The question of infringement by making extracts [403] from a work does not depend so much on the length of the extracts as upon their value. Extracts may be taken, to a reasonable extent, and for a purpose consistent with the plaintiff's rights, — as where they are taken by a re- viewerj for the purpose of showing the merit or demerit of the work. But this privilege cannot be so exercised as to supersede the original book.° A fair abridgment of a copyright book, even though the sale of the abridgment may injure the sale of the original, is not an infringement. But the question, what is a fair abridg- ment, is one of delicacy and difficulty, and depends upon va- rious considerations growing out of the facts of the particular case ;^such as whether the new work is a hona fide abridg- ment, or only an evasion by the omission of unimportant parts ; whether it will prejudice or supersede the original ; whether it will be adapted to the same class of readers, &c. If the leading design truly is to abridge a work and cheapen the price, and this by mental labor is faithfully done, there is no ground for a prosecution by the owner of a copyright of the principal work. But to constitute a fair abridgment, within the privilege, there must be a real, substantial, conden- sation of the materials, and intellectual labor and judgment bestowed thereon ; and not merely the facile use of the scis- sors, or extracts of the essential parts constituting the chief value of the original work. The new book must be, in good faith, an abridgment, not a treatise interlarded with citations. For to copy certain passages from a book, omitting others, is in no just sense an abridgment, as the judgment is not exer- cised in condensing the views of the author ; his language is copied, not condensed." ' Story ■». Holcombe, 4 McLean, ' Story v. Holcombe, 4 McLean, 306 ; 306; 5 West. Law J., 145; Millett ». 6 West. Law J., lin ; Folsom «. Marsh, Bnowden, 1 West. Law J., 340; Parker 2 Story 0. Ct., 100. V. Hulme, 7 Id., 417; 1 Fish., 44. * See, upon the right of abridgment * Webb V. Powers, supra, generally, Keene «. Wheatley, 9 Am. COPYRIGHT. 227 So a translation of a copyright book, prepared in good faith, as a means of bringing tlie conceptions and ideas of the ■original work before the readers of another language, is not an infringement. And even the fact that the author has pre- viously caused the work t6 be translated into the same lan- guage, and to be copyrighted, will not render a second translation unlawful. The right which the copyright [404] laws secure exclusively to the author, is, the right to multiply the copies of that particular combination of charac- ters which exhibits to the eyes of another the ideas intended to be conveyed. This is what the law terms "copyright." Now a " copy'''' of a book must be a transcript of the language in which the conceptions of the author are clothed ; of some- thing printed and embodied in a tangible shape. The same con- ceptions, clothed in another language, cannot constitute the same composition. Hence a translation is not, in any just sense, a "copy " or transcript of a book. In all these cases the inquiry is not whether the defendant has used the thoughts, conceptions, information, and discoveries promulgated by the original, but whether his composition may be considered a new work, requiring invention, learning, and judgment, or only a mere transcript of the whole or parts of the original, with mere colorable variations.' The application of the remedies afforded by the forier copyright law, to the protection of dramatic compositions, was attended with much diflB.culty; owing to the peculiarity that these are reproduced, or infringed, not so much by pub- lished copies, as by representation upon the stage. Kecent legislation, particularly section 4966 of the Eevision has given securer redress for this description of infringement ; the deci- sions respecting which are highly interesting and instruc- tive.' Law Reg.,4A-^ ^ Phil., 157; Story v. ' See particularly, Boucicault «. Fox, Holcombe, supra; Folsom v. Marsh, 5 Blatchf., 87; Daly «. Palmer, 6 2 Story C. Ot., lOQ; Gray ». Rusjell, Blatchf., 256; 3 Am. Law Bev., 453; 1 Id., 11, 19; 2 Law Bep., 394; Webb Boucicaultu. Wood, 2 Biss., 34; 7 Am. e. Powers, 3 Woodb. & M., 497, 512; Law Beg. JST. 8., 539; Keene «. Kim- 10 Law Bep., 153; Greene ®. Bishop, 1 ball, 16 Qray (Mass.), 545; Palmer «. Cliff., 186. De Wi . 2 Sweeny (if. Y.), 530; ' Stowe «. Thomas, 3 Wall. Jr. G. 4:0 How. Pr., 303; 47 2^. T., 333; Ot., 547; 3 Am. Law Beg., 339; But Keene v. Whitney, 5 Pa. Law J., 501; hj Bev. S'.' t., § 4953, aaci.ors may re- 9 Am. Law Beg., 33. -servo the right to translate. [406] CHAPTER V. CEIMES. The general rule, in respect to criminal prosecntions in the Circuit and District Courts of the United States, is, that they are maintainable for those acts only which have been desig- nated as offenses, and for which a punishment has been pre- scribed by act of Congress.' It is remarkable that while the Constitution makes no express gift of' power to Congress to provide for the punishment of crimes other than counterfeit- ing and treason, yet, in view of the general operation of its provision, the judicial power over crimes has been deduced from, and found to be dependent upon the action of Congress, almost exclusively." In conducting trials for crime, the courts of the Union are, to a large extent, guided by the course and principles of Anglo-American jurisprudence relative to the nature and extent of criminal capacity and responsibility ; the relative guilt of principals and accessories ; the proper presumptions to be indulged ; the kind and degree of evidence to be required ; and the general course to be followed in the plead- ings and the procedure. But they do not convict or punish ^ Two exceptions to this remark ex- Hudson, 7 Id., 83; United States o. ist in the cases pointed out ante, p. Coolidge, 1 TFAeai., 415; United States- 134. The inherent power of courts to «. Bevans, S Id., 336 ; United States n. punish for contempts, ought, perhaps, Libby, 1 Woodb. & M., 331 ; United ' to be mentioned, also. And the States v. New Bedford Bridge, Id., Supreme Court of the District of 401 ; United States ». Wilson, 3 Columbia inherits from its predeces- Blatchf., 435; United States v. Lan- sor, the Circuit Court of the District, caster, 2 McLean, 431 ; United States a more extended criminal jurisdiction ». Irwin, 5 Id., 178; United States*. than the Circuit and District Courts Eamsay, Sempat., 481 ; United States throughout the Union possess, —as to v. Brady, 2 Int. Rev. iS«c., 46. Com- •which, see ante, p. 376. pare United States ». Worrall, 3 Doll., ' Oonkling^ 8 Treatise, 164: ; Exp. Boll- 384, 393; Ujjited States v. Tcrrel, man, 4 Craneh,'^^; United States v, J3emjijsi., 411 ; United States «. Barney, rS281 5 Blatchf., 394. CRIMES. 229 except for Btatutory offenses — ^for acts or neglects the pun- ishment of whioli lias been authorized by act of Congress. Seo. 116. Former legislation as to crimes. — Immedi- ately after the organizati^on of the goverDment under [407] the present Constitution, a statute embodying a sys- tem ,of criminal law and procedure, deem ed adequate for the iemands of the times, was enacted. It is known as the Crimes Act of 1790. ' It prescribed some regulations to gov- •ern the courts having criminal jurisdiction,' and their proce- dure. In addition to these, the act contained an extended system of provisions defining and declaring the punishment of various specific offenses. The next important statute in order of time, embodying principles of a general character affecting the criminal law, is that known as the Crimes Act of 1825.' Its provisions had but little bearing upon procedure, except that jurisdiction as •dependent upon locality is regulated with greater distinctness than was done by previous laws. The sections of the act are principally occupied with defining and prescribing the pun- ishment of various specific offenses. The two acts just mentioned embody a large part of the ■criminal law of the United States, as it existed prior to the Revision ; but by no means the whole. There were many other provisions of statute defining and punishing various specific offenses, scattered through various statutes ; and also acts having a general bearing upon criminal jurisprudehce, irre- spective of the nature of the particular offense in question.' In this work, as originally published, we collected the sub- stance of these enactments relating to offenses as to which the practitioner is more frequently called upon to advise, and classified them with a view to the reasons which appeared to iiave led Congress to legislate upon them instead of leaving them to State laws ; and thus presented in one chapter a con- cise general exhibit of the then existing criminal law of the .United States. The enactment of the Revised Statutes ' has ' Act of April 30, 1790. July 16, 1863; Act of June 11, 1864, » Act of March 3, 1835, 4 Btat. at Act of March 3, 1865. •Z., 115. * As to the effect of the enactment ' See, particularly, act of August 8, of the Revision on pending prosecu- 1846, Act of June 17, 1863, Act of cutions, — see United States «. Ulrici, 3 DiU., 533. 230 SUBJ'ECTS OF JURISDICTION. superseded this chapter, for Title 70 of the Revision embodies, the substance of the laws defining and punishing crimes ; and is fully as convenient, and more complete and authori- tative than any statement in the power of an author to pre- pare and present. We here give a brief resume of the con- tents and arrangement of the Title Ckimes ; accompanied by some explanations founded upon adjudications of the courts. It should, however, be understood that Title 70, is not a complete collection of all enactments punishing offenses. Many instances may' be found, throughout the Revision, ia which the clause affixing punishment for violating a prohibi- tion, could not well be separated from the prohibition itself, and this was too closely connected with the substance of mat- ters belonging in another title, to be taken from that. For an entire list of all punishments imposed by the Revision, nearly all the titles would need be consulted. Chapter one, of Title 70, containing "general provisions," and chapters eight and nine relating to the "punishment of accessories" and to "prisoners and their treatment," relate to matters of which all but the definition and punishment of accessories, are quite outside the scope of our work : pro- cedure in the national courts. Chapter two, of crimes against the existence of govern- ment, defines and prescribes punishment of treason ; mis- prision of treason ; inciting or engaging in rebellion or insur- rection ; criminal correspondence with foreign governments ; seditious conspiracy ; recruiting soldiers or sailors to seA^e against the United States ; enlistment to serve against the United States. [408] Treason is expressly defined in the Constitution, — which declares that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."' This definition puts at rest, at once, numerous questions ' Oonst. of U. 8., Art. I, § iii. § 1, 1 Stat, at L., 113; Act of July 17, Congress may, with the familiar ex- 1803, § 1; 13 Id,, 549. Or by impris- ception as to the effect of an attainder, onment for not legs than five years, declare the punishment. Ih. Under and a fine of not less than ten thou- this power, it has been made punisha- sand dollars, and a perpetual disquali- ble by death. Act of April 30, 1790, fication to hold office under the United States, lb. CRIMES. 231 •which have embarrassed the subject in English jurisprudence. In this country the question usually is, whether the acts of the defendant amount to "levying war," or to "adhering" to the enemies of the government, giving them aid and comfort. In explanation of the first of these phrases,' it has been decided, and has become a familiar rule, that overt acts are necessary. An intention to commit treason is an offense entirely distinct from the actual commission of that crime. [409] War can only be levied by the employment of actual fo:pce ; troops must be embodied, men must be assembled, in order to levy war." But these acts need not amount to com- plete war in the popular sense of that term. For, first, active preparations for hostilities may amount to war in the constitutional sense. An assemblage of men for the purpose of revolutionizing by force the government estab- lished by the United States in any of their Territories, as a step to, or as the means of executing some greater projects, amounts to levying war, and is treason. The traveling of in- dividuals to the place of rendezvous is not sufficient ; but the meeting of particular bodies of men, and their marching from places of partial to a place of general rendezvous, is such an actual assemblage as constitutes a levying of war.' Again, while a person who performs no act in the prosecution of the war, who only counsels and advises it, or who, being engaged in the conspiracy, fails to perform his part, may not be deemed to have committed the act of levying war, yet if war be actually levied, that is, if a body of men be actually assem- " Treason consisting in adhering to enemy with an intention of supplying the enemies of the United States, has him, although he might have been de- been discussed in two of the reported feated therein; or if the prisoner's eases, which are, however, rather in- intention had been to procure provis- stances of the application of the con- ions for the enemy by uniting with stitutional rule than adjudications of him in acts of hostility against the a general principle. In United States citizens of the United States. ». Pryor (3 Wash. 0. Ot., 334), the de- In United States «. Hodges (3 Wheel. fendant was indicted for treason in Cr. Gas., 477), the act of delivering adhering to the enemies of the United up prisoners and deserters to the ene- States, in going from an enemy's my was held to be such an adhering to squadron to the shore, for the purpose them and giving them aid and comfort, of peaceably procuring provisions for as constitutes the crime of treason the enemy. It was held that the act against the United States. did not constitute an overt act of " Exp. Bollman, 4 Oranch, 75 ; Uni- treason. But the rule, it was said, ted States «. Ban; 1 Burr's Trial, :14; would be otherwise, if the defendant Charge to Grand Jury, 2 Wall. Jr. 0. had carried provisions » towards an Ot., 134. ° Mi^. Bollman, 4 Oranch, 75. 233 SUByECTS OF JURISDICTION. bled for the purpose of effectiDg by force a treasonable object, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.' It is not necessary to prove that the individual accused was a direct personal actor in the violence. If he was present, di recting, aiding, abetting, counseling, or countenancing it, he is in law guilty of the forcible act. Nor is even his personal presence indispensable. Although he may have been absent' at the time of the actual perpetration, yet if he directed the, act, devised or knowingly furnished the means for carrying it into effect, and instigated others to perform it, he shares their guilt." And where a body, large or small, of armed men, [410J is mustered in military array for a treasonable pur- pose, every step which any one of them takes, in part execution of this purpose, is an overt act of treason in levy- ing war." Again, the object of the offenders need not be the entire overthrow of the government, in order to constitute war within the constitutional sense. Thus the occupation of a fortress by a body of men in military array, in order to de- tain it against a government to which they owe allegiance,' is treason on the part of every one concerned, either in the occu- pation or subsequent detention of the post, although no hos- tile resistance may have been encountered in the capture or detention." So the union of men in arms to commit acta of violence for the purpose of wholly preventing the execution of a law of Congress, and suppressing a public office created by it, by compelling the resignation of the offi- cer, and resisting all measures for the enforcement of the law, amounts to treason, within the Constitution.' But to consti- tute treason in resisting the execution of an act of Congress, there must be conspiracy to resist it, generally, and publicly, ' United States n. Burr, 3 Burr's statute under which it was taken had Trial, 405. been previously repealed, cannot be " Charge to the Grand Jury, supra. guilty of treason. United States i>. ' Bxp. Bollman, 4 Oraneh, 75 ; Uni- Villati, 3 DalL, 370. ted States o. Greiner, 14 Law Sep. N. ' United States v. Greiner. 14 Law S.,U; 4 Phil, 396. Sep. if. S., 91; 4PM., 396; Charge * Breach of allegiance is essential to to Grand Jury, 4 Blatchf., 518. constitute treason. United States v. '' Western Insurgents' Case, Wha^t. Wiltberger, 5 Wheat., 76, 97. Thus St. Tr., 103-183; Northampton Insur- an alien, whose oath of allegiance to geats' Case, Id., 458-584; Pries' Case, the Uaited States is void, because the Id., 610, 636. CRIMES. 233 ■ and by force j carried out in an actual resistance by force, or by intimidation of numbers. A conspiracy to resist by force the execution of such a law in particular instances only, and for a personal or private purpose, is not treason, however great the violence or force of numbers of the conspirators may be.* The expression "levying war," embraces not merely the act of formal or declared war, but any combination forci- bly to prevent or oppose the execution or enforcement of a provision of the constitution, or of a public statute, if accom- panied or followed by an act of forcible opposition in pursu- ance of such combination* Treason cannot be committed without a pre-existing conspiracy to oppose the law by force, followed by actual violence ; but the conspiracy may be deduced from the actions occurring at the time, afterwards or before, or from other facts." The question what may constitute treason, received extended and careful consideration by Mr. Justice Field, in the case of the United States v. Greathouse ; ' with reference both to the constitutional definition of the offense, and to the provisions of the act of July 17, 1862,' prescribing the punish- ment. And it was in that case held that rebels being citizens, are not "enemies" within the meaning of the constitution; hence, a conviction for treason, in promoting a rebellion, cannot be sustained under that branch of the constitutional definition which speaks of " adhering to their enemies, giving them aid and comfort." But aid rendered to a rebellion may sustain a conviction under that clause of the definition which relates to levying war.' To constitute a levying of war, there ' United States v. Han way, 3 Wall, act of the latter date, for subssquenl Jr. 0. Ot., 139. And see United offenses; and, 3. To punish treason States V. Hoxie, 1 Paine, 365. thereafter committed with either " Charge to Grand Jury, 5 Pa. Law death or fine and imprisonment, in J. Hep., 55. the discretion of the court, unless the ' 3 Abb. U. 8., 364. treason consist in engaging in (5r as- * 12 Stat, at Z., 590. With respect sisting a rebellion or insurrection; to the operation of this act upon tha then the death penalty is to be aban- punishment of treason, the decision in doned, and a less penalty inflicted. Greathouse's Case was, that Congress ' War levied against the United intended, 1. To preserve the act of States by citizens, under the pretended 1790 (wMcb prescribes the death pen- authority of the pseudo State govern- alty) in force for the prosecution and ment of a seceded State, or of the punishment of offenses committed pre- "Confederate States," was treason vious to July 17, 1863, unless the par- against the United States. Shortridge ties accused are convicted under the v. Macon, Chase's Dec,, 136. 234 SU£^£CrS OF JURISDICTION. must be an assemblage of people with force and arms, to overthrow the government or resist the laws ; but where war has been levied, all who aid in its prosecution by performing any part in furtherance of the common object, however min- ute, or however remote from the scene of action, are guilty of treason. The purchase of a vessel, guns, and ammunition ; the pre- paring her for sea, and making her ready for service in aid of the rebellion of citizens of the United States against the government thereof, and after war has been levied, with the purpose of attacking and destroying American vessels ; are overt acts of treason. That such acts done in furtherance of the common designs of the insurgents, give " aid and com- fort to the rebellion," is a conclusion of law which follows the acts, whether the vessel actually sails, or whether its cruise be successful or not. It is not essential to constitute giving aid and comfort, that the effort should be successful, and actually render assistance. Overt acts, which, if successful, would advance the interests of the rebellion, amount to aid and comfort. JSTor can a letter of marque, issued by a self-styled government, erected by some of the States, or the people thereof, in rebellion against the authority of the United States, constitute any defense to a judicial trial for treason in acts of levying war, done under such letter, so long as the legislative and executive departments have not recognized the existence of such self-styled government, and its author- ity to issue letters of marque. Again it is important to consider, in this connexion, tliat in treason all parties to the crime are principals. Every act which, in the case of felony, would render a man an accessory, will, in the case of treason, make him a principal. It is ma- terial here, to consider whether the persons charged are of the same party, upon the same pursuit, and under the expecta- tion of mutual defense and support. All persons pres- [411] ent, aiding, assisting or abetting any treasonable act, are principals. All persons who are present and coun- tenancing, and are ready to afford assistance, if necessary, to those who actually commit any treasonable act, are also princi- pals. If a number of persons assemble and set out upon a common design, as to resist and prevent, by force, the execu- tion of the law, and some of them commit acts of force and crimen: 235 violence, with intent to oppose the execution of the law, and others are present to aid and assist, if necessary, they are all principals.' The Constitution having given an express definition of treason, Congress cannot, of course, extend the guilt of trea- son to misconduct not embraced within the definition. But they may enact, and in several instances have enacted, laws to punish offenses not amounting to treason, but which have a tendency towards the subversion of the government. Crimes which have for their object the subversion of the laws and institutions which have been ordained in order to secure the peace and happiness of society, may receive such punishment as the legislature shall prescribe, although they do not amount to treason." Sect. 117. Crimes arising within the maritime and terri- torial jurisdiction of the United States. — Oifenses upon the [413] high seas are peculiarly and properly within the juris- diction of the United States ; and it has from the outset been recognized as necessary that Congress should legislate, fully, with reference to them. So, also, of offenses committed upon lands which have been ceded to and are held by the govern- ment as a part of the public domain. In respect to these crimes, the locality of the act tends to draw them within the national jurisdiction, and to exclude them from , that of the States. There is a reason, springing from the peculiar nature and organization of our double government, why the United States should prescribe a complete criminal code for the sea and the public domain. Chapter three of Title 70, supplies a system of provisions answering, to a good degree, the purpose of a criminal Code for these regions. It includes murder and manslaughter, and attempts at either ; rape ; assaults in several foi-ms ; maim- ing ; seduction of female passengers on vessels ; bigamy ; larceny : receiving stolen goods ; plundering a vessel in dis- tress ; making or inciting to revolt or mutiny on shipboard ; plundering, casting away, and destroying vessels ; piracy, and several cognate offenses ; robbery ; various acts in promotion ' Fries' Case, Whart. St. Tr., 610, J. Rep., 55. 636 ; Charge to Grand Jury, 5 Pa. Law '' Bkep. Bollman, 4 Oranch, 75. ■238 SUBySCTS OF JURISDICTION. of the slave trade ; arson ; depredations on timber lands ; cir- culation of obscene literature. The adjudications upon the former statutes from which this chapter was compiled have settled some rules of^'conT struction which should be understood. [414] One of these rules is, that where an act of Congress designates a crime by its common law name, without giving a definition, the crime intended is to be ascertained by reference to the common law. Thus, where murder, by that name, is made punishable, the courts apply the definition to the acts which are deemed murder by the common law.' So, where robbery is designated as punishable, without a spe- 'cification of the acts regarded as constituting robbery, the penalty is applied to whatever would constitute robbery at .common law." Substantially the same principle has been -applied where an act of Congress has provided for the sup- pression of "piratical aggressions," without defining what shall deemed piratical, but leaving the courts to consult the law of nations for a definition of the crime of piracy. Such an act is a constitutional exercise of the power of Congress to define and punish piracy. Congress may define by using a term of a determinate meaning, as well as by an express enu- meration of the particulars included in that term. That is certain, which, by necessary inference, is made certain ; and the law of nations has described the crime of piracy with reasonable certainty." The rule, however, is not confined to the enactments relating to these crimes ; but is a general rule in the interpretation of acts of Congress. Wherever a statute of the United States uses a technical term, which is known, and its meaning clearly ascertained by the law of nations or the common law or civil law, from one or the other of which it is obviously borrowed, it is proper to refer for its meaning to the source from which it is taken. But, upon the other hand, if the act of Congress states the elements which shall constitute the offense intended to be pun- ished, the statutory definition is to be; followed, and supersedes ' United States o. Magill, 1 TFasA. 610 ; United States «. Jones, 8 W,aah. 0. Gt., 463. For a view of the cases, 0. Gt., 309. see Ably. Nat. Dig., title Homicide. ' United States v. Smith, 5 Wheat., " United States a. Palmer, 3 Wheat., 158. And see United States v. Chap- els, 2 Wheel. Or. Cos., 218. CRIMES. 23T the common law meaning of any term wliicli may be employed in designating tlie oflEense.' The expression "high, seas" has been a subject [415] of discussion in several cases applying particularly to the criminal statutes. The general meaning of the expression is the uninclosed waters of the ocean on the sea-coast, outside of fauces terrce. The term is used in its proper and natural sense, and in contradistinction to mere tide-waters flowing in ports, havens and basins that are landlocked in their position and subject to territorial jurisdiction." It does not include a foreign river only half a mile wide, and running into the inte- rior of a country.' But it does include the mouth of a foreign river a mile and a half wide ; * also Long Island Sound ; ' and it has been held competent, on an indictment for piracy, for a jury to find that a vessel within a marine league of the shore, at anchor in an open roadstead, where vessels only ride under the shelter of the land at a season when the course of the winds is invariable, is upon the high seas.° ' Thus, to warrant a conviction for piracv. under the act of May 15. 1830, § 3 (3 Slat, at L., 600),— by whicii any person who, upon the high seas, or in any open roadstead, or any haven, basin or bay, or in any river where the sea ebbs and flows, commits the crime of robbery, in or upon any ship or vessel, or upon any of the ship's com- pany of any ship or vessel, or the lad- ing thereof, or who being engaged in any piratical cruise or enterprise, or being of the crew or ship's company of any piratical ship or vessel, lands from such, ship or vessel, and, on shore, commits robbery, is declared a pirate, — ^it was held not necessary that the taking should be one which would amount to piracy according to the Jaw of nations. The act declares the per- son a pirate, punishable by death, who commits a roobery upon the high seas against any vessel, or upon any ships, the company of any vessel, &c., and applies to any case of depredation upon an American vessel or property on the high seas, under circumstances that would constitute robbery, if the ofiense was committed on land. If the prisoner was guilty of this statute oflfense of robbery upon the high seas, he may be convicted, although his offense may fall short of piracy as known in the law of nations. Triat of the Officers anA Crew of the Savan- nah, s'ro. ^ United States v. Grush, 5 Mas., 290, 297; United States*. Wilson, 3 Blatcfif., 435; United States®. Robin- son, 4 Mas., 307; United States v. Grush, 5 Id., 300 ; Johnson v. Twenty- one Bales, &c., 3 Paine,^ 601 ; Van Ness, 5; 6 Am. Law J., 68; 3 Wheel. Or. Gas., 433. ^ United States ». Wiltberger, 5 Wheat.. 76. * United States v. Smith, 3 TFasA. G. Gt., 78, note. "■ The Martha Anne, Ola., 18. ° The court observed that in many places vessels lie at anchor in open sit- uations ('.nd especially where the trade- winds blow) under the lee of the land. Such vessels are neither in a river, h^en, basin or bay, and are nowhere unless it be on the seas. Being at anchor is immaterial. United States ©. Pirates. 5 Wlieat., 184, 200. By the act of August 18, 1856, 11 Stat, at L., 120; crimes com- mitted on guano islands, rocks or keys, or in the waters adjacent thereto,. .238 SUBJECTS OF JURISDICTION. In cases arising under provisions limited to acts [416] committed upon the high seas, it has been held that the jurisdiction of the Federal courts depends upon the place where the act was committed.' The words "out of the jurisdiction of any particular State," in section 8 of the Crimes Act of 1790, have been con- are to be deemed to have been com- mitted on the high seas, on board a merchant ship or vessel belonging to the United States, and made punisha- ble under laws of tlie United States relating to such ships or vessels, and offenses on the high seas ; vphich laws are extended ovSr such islands, &c. ' Thus, in a case arising under the Act of 1790, it was held that the offense of manslaughter is not punish- able in those courts unless it is com- mitted on the higb seas. United States V. Wiltberger, 5 Wheat.^ 76. In a similar case it was held that the Circuit Court had not jurisdiction to try for a murder committed on board a vessel of the United States , lying in the harbor of Boston. The harbor was not upon the high seas. Nor could it be deemed taken "out -of the jurisdiction" of the State, by that provision of the Constitution which extends the judicial power of the United States to all cases of ad- miralty and maritime jurisdiction; as a cession of such jurisdiction can uot be construed as a cession of the waters. Nor could a United States vessel be deemed another place within the pro- vision for the punishment of murder committed "within any fort, &c., or in any other place, &c., under the sole jurisdiction of the United States." United States ». Bevans, 3 Wheat., 336, 386. But by section 5, of the Act of 1825 (4 Stat, at L., 115), it is enacted that any offense committed on board of any vessel belonging to citizens of the United States, while lying within the jurisdiction of any foreign State, by any person belonging to the company of said ship, or any passenger, on any otlier person belon<>ing to tlie company of Slid ship, or any otlier passenger, ..shall be cognizable as if said offense had been committed on board of such vessel on the high seas. That the courts of the United States have no jurisdiction of a murder com- mitted at sea on board a foreign vessel, by one foreigner upon another; but they have jurisdiction of a murder committed on the high seas, by a for- eigner, upon a vessel belonging to the United States, upon another foreigner, being on board of a foreign vessel ; — and it makes no difference as to the jurisdiction of the courts of the United States, whether the offense was com- mitted on board of a vessel, or in the sea, as by throwing the deceased 0T,er- board and drowning him, or shooting him when in the sea, though not thrown overboard, — see United States ». Pirates, 5 Wheat.. 184; United States D. Holmes, Id., 418. Section 5, of the Act of 1835, was not designed to abrogate or curtail the jurisdiction of the United States over crimes committed at sea, but to remove doubts whether that jurisdiction could be exercised when the loaui in quo was a locked harbor, adapted by nature or artificially to protect vessels from the perils of an open coastage. The act does not afford the exclusive rule* of decision with respect to offenses which are not alleged and proved to have been committed on or against the persons of individuals on shipboard. United States v. Seagrist, 4 Blatchf., 420. Where the commission of an offense j was begun on board of an American ^ vessel', lying at the time in a river which formed an arm of the sea, on the coast of Africa, and continued uninter- ruptedly to a point in the Atlantic ocean several miles from laud, it was held that the offense was within the juris- diction of the courts of the United States. United States «. Gordon, 5 Blatchf., 18. CRIMES. 339 etrued to mean out of any one of the United States.' The general rule is, that the State courts have jurisdiction of offenses committed on arms of the sea, creeks, havens, basins and bays, within the ebb and flow of the tide, where those places are withili the body of a county ; and in such cases the Circuit Courts of the United States had no jurisdiction Sunder the Crimes Act of 1825." With respect to the various offenses coming under the general head of piracy, it was determined under [418] the act of 1790, that robbery and murder committed on the high seas, are acts of piracy.* To make a robbery on the high seas piracy, it is not neces- sary that it should be punishable by death when committed upon the land ; but the general rule is, that robbery or forcible depredations upon the high seas are piracy, both by the law of nations and by the act of Congress. * It was fur- ' United States t>. Pirates, 5 Wheat., 184, 300. " United States e. Grush, 5 Mas., 290. ° United States ®. Jones, 3 Wath. O. Ct., 209; United States ». Palmer, 3 Wheat., 610, 637. * Id. ; Id. ; United States %. Smith, ^ Wheat., 153; United States ». Pirates, Id., 184; Davison t. Sealskins, 3 Paine, 334; United States «. Hatch- ings, 3 Wheel. Cr. Oas., 543. One exception to the rule stated in the text is recognized; — where a rob- bery is committed by a person on the high seas, on board of any ship or ves- sel belonging exclusively to subjects " of a foreign State, on persons within a vessel belonging exclusively to sub- jects of a foreign State. This was held not a piracy within the meaning of the Act of April 30, 1790, for although some of the words of the statute are broad enough to embrace the prohibited acts, by whomsoever committed, yet they must be construed with reference to the evident intent of the legislature. So construed, the statute does not apply to offenses com- mitted on board of vessels of a foreign State. United States ®. Palmer, 3 Wheat., 610. But this exception is strictly con- fined to vessels of foreign States. To bring a person commiting murder or robbery within the exception, the ves- sel on board which he is, or to which lie belongs, must be, at the time, in point of fact, as well as right, the property of subjects of a foreign State, who must have, at the time, in virtue of this property, the control of the vessel. She must, at the time, be sailing under the flag of a foreign State, whose authority is acknowl- edged. General piracy, or murder or robbery committed by persons on board of a vessel not at the time be- longing to the subjects of any foreign power, but in possession of a crew act- ing in defiance of all law, and ac- knowledging obedience to no govern- ment whatever, is within the act, and is punishable in the courts of the Uni ted States. United States «. Klintock, 5 Wheat., 144, 151. A vessel loses her national character by assuming the character of a general pirate ; and a piracy committed liy a foreigner from on board such a vessel upon any other vessel whatever, is punishable under section 8 of the Act of April 80, 1790. United States «. Pirates, 5 Wheat., 184. Compare United States ». Gibert, 8 Sumn., 19. And this exception was somewhat qualified by the Act of March 3, 1847, 9 atat. at L., 175. 240 SUBJECTS OF JURISDICTION. ther held that to constitute the offense of piratically and. feloniously running awaly with a vessel, personal force and. violence is not necessary. The piratical and felonious act, within the meaning of the statute, is the running away with a vessel, with an intent to convert the same to the taker' sown, use against the will of the owner.' But to constitute this offense, it must appear that the command of the vessel was taken from the captain by the accused, without the former's consent, for some time, no matter how long ; and that the act was done feloniously, and with the intent to convert the ves- sel and cargo, or either, to the use of the persons concerned in the act." With respect to the offense of destroying a vessel, [422] it was held that to warrant a conviction under the act of March 26, 1804, a destruction of the vessel by cast- ing away, burning, or in some other manner, must be shown ; an injury repaired was not enough.' But further than this, actual injury to the underwriters was not necessary to be shown ; the fact that they were not injured because th& policy was invalid, formed no defense. And the words "any person or persons that hath underwritten," &c., were held to include corporations ; proof of formal charter and organiza- tion being unnecessary.* But under the somewhat more stringent provisions of the act of 1825, it was not necessary, in order to establish [423] the offense, to prove that the vessel was destroyed, or that the insurance offices were actually injured ; to show that the defendants conspired to destroy the vessel, with the view of injuring those offices was enough.' But a "conspir- ing" between two or more defendants must be shown ;° and* also an intent to injure insurers." With respect to maiming, it was held, under the provisions of the act of 1790, that to disable or disfigure any limb or member of a person, by means of shooting, stabbing, biting, cutting, gouging, or any other means, with intent to maim or ■ ' United States « Tully, 1 Gall., 347. * United States®. Amedy, 11 Wheat.,. " United States v. Haskell, 4 Wash. 392. 0. Ot., 402; 2 Wheel. Or. Gas., 101. ' United States «, Cole, 5 MeLean, ' United States v. Jolins, 4 Dall., 613. 412; 1 Wash. 0. Ot, 368; United ' Id. States V. Yanranst, 3 Idi, 146. ' United States i>. Hand, 6 McLean,. 274. CRIMES. 241 disfigure, is punisJiable under this section. The particular mode of effecting this disfiguration or disability, or the par- ticular weapon, or instrument, or means used, are not , material, providing the result is maiming or disfigura- [425] tion with intent so to do.' With respect to manslaughter it should be observed that since the Revision the punishment has been increased as to future offenses and prosecutions, by act of March 3, 1875," which provides that : ' ' whoever shall hereafter be convicted of the crime of manslaughter, in any court of the United States, in any State or Territory, including the District of Columbia, shall be imprisoned not exceeding ten years, and fined not exceeding one thousand dollars." Sect. 118. Admiaistration of State laws. — It should be ex- [428] plained, both as introductory to a special mention of sec- tion 5391 of the Revision, and as bearing upon several of the statutes which have been thus far stated, that the criminal jurisprudence of the United States courts over places upon the land within the exclusive jurisdiction of the United States, — the Territories, the District of Columbia, and lands within the States which have been ceded to the national gov- ernment for public purposes, — is regulated by a threefold system of legislation. It is governed, in part by acts of Con- gress prescribed for the particular Territory or District ; in part by acts defining and punishing specific crimes ; and in part by the section mentioned, which enables the courts of the United States to apply, in certain cases, the State laws. The legislation of Congress derives its authority from s/a express provision of the Constitution,' which confers upon Congress the power to exercise exclusive legislation in all cases whatsoever over such district as may by cession, &c., become the seat of government of the United States, and to exercise like authority over all places purchased by the con- sent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings. Under this clause, the territory belonging to the United ' United States «. Scroggins, Hempat., titles Assault ; Seamen. 478. " 18 Stat, at L., 473. For cases on the less violent and in- ' Comt. of V. iS., Art. I., § Tiii., jurious assaults, — see Abb. Nat, Dig., 17. Vol, 1—16 243 SUBJECTS OF JURISDICTION. States, not situated within the limits of any State, and also that within such limits, but over which jurisdiction has been ceded to the United States, and which is used for exclu- sive and constitutional objects, is subject to the laws of Con- gress, and not to the laws of the State, when the latter conflict in any degree with what has been required by the general government. Eemedies may, however, be sustained undei State laws, where Congress has not taken them away.' It is true that where the United States own land, situated within the limits of particular States, and over which they have no cession of jurisdiction, for objects either special or general, the rights and remedies in relation to it are usually such as apply to other land owners within the State, and the lex rei sitce will govern, except where the Constitution, treaties, [429j or statutes of the United States, otherwise require and provide." For, the mere purchase of lands by the United States, for public purposes, within the territorial limits of a State, does not of itself oust the jurisdiction or sovereignty of such State over such lands so purchased." The State jurisdiction remains until the State has expressly or im- pliedly given its consent. But as the Constitution declares that Congress shall have power to exercise ^'■exclusive legis- lation^^ in all "cases whatsoever," over all places purchased* by consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, dock-yards, and other needful buildings, therefore, when a purchase of land for any of these purposes is made by the national gov- ernment, and the State legislature has given its consent to the purchase, the land so purchased falls within the exclhasive legislation of Congress, ,and the State jurisdiction is com- pletely ousted. Exclusive jurisdiction is the attendant upon ' United States e. Ames, 1 WooSb. required by the Constitution in order & M., V6; 9 Law Hep., 295. to vest sucli jurisdiction in the United ' United States v. Ames, supra. States. United States v. Stahl, 1 See, also, Irvine «. Marshall, 20 Roio., Woolw., 193; McOahon, 206. .558; Act of April 28, 1828, 4 Stat, at The courts of Kansas alone have //., 264. jurisdiction to try a white man for the ' The national courts have no juris- murder of another, where such crime diction of the crime of murder, com- was committed on the reservation of mitted upon the military reservation the Kansas tribe of Indians in that of Port Barker, Kansas, because the State. The national courts have no State legislature has never given its jurisdiction in such a case. United consent to the occupation by tbe Uni- States e. Ward, McOahon (Kans.), ted States of such reservation, as is 199. CRIMES. 243 exclusive legislation." And the United States have sole and ■exclusive jurisdiction of crimes committed within tracts of land which the States have ceded to them for the purposes of the army and navy, notwithstanding reservations to the State of concurrent jurisdiction in executing process within, for offenses committed without, such tracts. The object of such reservation is to prevent the place from becoming an asylum for fugitives from justice. It does not exclude the exclusive jurisdiction of the United States, but merely operates as a con- dition of the grant." It is, however, held that every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for ah infraction of the laws of either. The [430] same act may be an offense or transgression of the laws of both. Thus an assault upon the marshal of the United States, and hindering him in the execution of legal process, is -a high offense against the United States, for which the perpe- trator is liable to imprisonment ; and the same act may also be a gross breach of the peace of a State, a riot, assault, or a murder, and subject the offender to a punishment under the State laws for a misdemeanor or felony. Either or both gov- ernments may punish such an offender. Yet it cannot be averred that the offender has been twice punished for the same offense ; but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to conviction by the - other.' ' United States v. Cornell, 3 Mm., authorized from that act to protect 60. that sovereignty by the same means ; ' United States n. Davis, 5 Mai., and, therefore, with regard to ofEenses 356 ; United States ®. Travers, 3 committed within this portion of the ., Wheel. Or. Gas., 4B0. District of Columbia, the government By the cession of Washington Coun- has a criminal common law, and its ty by Maryland, in addition to the courts possess a criminal common law District of Columbia, all her State pre- jurisdiction. United States v. Wat- rogative derived from the common liins, 3 Oranch G. Ot., 441, 452. law, which she adopted, so far as con- ' Moore «. Illinois, 14 How., 13; see ■cemed the territory ceded, passed to also United States v. Wells, 15 Int. the United States, together with and Bev. Sec. , 56. including the power which Maryland The jurisdiction of a State court . had, by virtue of that common law over a larceny of property of a nation- prerogative, to punish by indictment, al bank by an oflicer thereof, is not offenders against the sovereignty of afEected by his liability for embezzle- Ihe State. The United States became ment under the act of Congress of 244 SUBJECTS OF yURISDICTION. Offenses not punishable by an act of Congress of eitlier class, may be punislied under State laws, in virtue of section 5391 ; which is as follows : "If any offense be committed in any place which has been or may hereafter be, ceded to and under the jurisdiction of the United States, which offense is not pro- hibited, or the punishment thereof is not specially provided for, by any law of the United States, such offense shall be liable to, and receive the same punishment as the laws of the State in which such place is situated, now in force, provide for the like offense when committed within the jurisdiction of such State ; and no subsequent repeal of any such State law shall affect any prosecution for such offense in any court of the United States." Sect. 119. Crimes against Justice. — Chapter four includes, under this caption, such offenses as perjury ; subordination of perjury ; stealing or altering process, procuring false bail, &c. ; taking false oath in naturalization ; obstructing process or assaulting officer ; intimidation or corruption of witness or officer ; rescue at execution ; rescue of prisoner ; destroying, &c., public records ; corruption or intimidation of jurors, &c. ; attempt to influence juror ; conspiring to intimidate party, witness or juror ; eonspjracy to defeat the enforcement of the laws ; destroying records by officer in charge ; allowing prisoners to escape ; falsifying California land records. In respect to the offense of resisting an officer of a [444] court of justice, it was held, under former laws, that it may be complete without the actual employment of violence. If a person says he will not go with the officeB, and does not go, it is a resistance.,' So the offense of obstructing the execution of a writ of possession may consist in refusing to give up possession, or in opposing or obstructing the exe- cution of the writ by threats of violence, which it is in the power of the person to enforce, and thus preventing the offi- > cer from dispossessing the person so acting. If, when [445] rlie officer proceeds with the writ to the land, and is about to execute his process, a threat is used, by a person forcibly retaining the possession, accompanied by the exercise of force, or having the capacity to employ it, 18fi4. § 55. Commonwealth ». Barry, ' United States v. Lukins, 3 Wash, 116 JfcMS., 1. G. Ct., 835. CRIMES. 245 and tlie oificer does not execute Ms writ, the offense is com- plete. ' It is not a justification of the offense of obstructing the execution of process issued out of a Federal court, that the defendant was a subordinate oflBcer of the militia of a State, and acted under the sanction of a law of the State and under orders from the governor and commander-in-chief of the State militia." Under former laws it was held no defense to an indictment for forcibly obstructing or impeding an officer of the customs engaged in the discharge of his duties, that the object of the party was personal chastisement, and not to obstruct or impede the officer in the discharge of his duties ; if the defend- dant knew the. officer to be so engaged. The case, is within the statutes, if the officer is in fact obstructed.' But to justify a seizure, there must be a probable cause ; and if an officer of the customs seize without a probable cause, no indictment will lie for resisting him, for resisting officers of the .customs in the execution of their duty. The discretion with which the law vests him is a legal discretion ; and he cannot protect himself if he acts wantonly, for he is then a mere trespasser, and not in the execution of the duties of his office.* A seizure must have been lawfully made, and possession taken and continued by the officer ; and the accused must have carried such goods away forcibly, knowing them to be under seizure.' Sect. 120. Crimes against the operations of the government. Official misconduct. — Tliese are embraced in chapters five and six ; and they are, as is natural, numerous as well as import- ant. The first class includes such matters as forgeries of public 'United States v. Lowry, 2 Wmh. Mer. Mag. (Sept., 1858), 332; United C. -Ot, 169; 8. C, sid> nom. United States ». Mundel, 6 OalL, 345; United States V. Lowrey, 1 Am. Law J., 233. States v. Goure, 4 Oranoh C. Ct., As to what facts amount to resisting 488. process, in special cases, see United " United States ®. Bright, Bright, States V. Tinklepaugh, 3 Blatehf., 435 ; 19. United States a. Buck, 8 Am. Law ' United States ®. Keene, 5 Mas., Beg., 540; 4 Phil., 161; Chaj'ge to 453. Grand Jury, 2 OuH. 0. Ct., 687; * United States ®. Gay, 3 ©r/W., 359. United States «. Desmond, 39 Hunt's ' United States v. Cook, 1 Sprague, 213. 246 SUBJECTS OF JURISDICTION. obligations, national bank notes, letters patent, official and judicial papers and records of various kinds, with a great variety of frauds, injurious to the government, or tending to embarrass or defeat confidence in its operations ; counterfeit- ing the coin ; and postal crimes.' The second class comprises such offenses as extortion in various forms ; embezzlement ; failure to keep and pay over public moneys ; accepting a bribe ; and breach of some spe- cified duties imposed on officers, by law. Sect. 121 . Crimes against the elective franchise and civil rights. — These form the subject, of chapter seven. It contains numerous and stringent provisions, aimed to punish all forms of fraud or violence embarrassing or frustrating the exercise of the right of election ; and various conspiracies and other unlawful acts in violation of the laws protecting " civil rights." To our mention of this chapter must be, added a citation of themorerecentact of March 1,1875." It enacts: "That all per- sons within the jurisdiction of the United States shall be enti- tled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public convey- ances on land or water, theaters, and other places of public amusement ; subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color, regardless of any previous condition of servi- tude. " That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applica- ble to citizens of every race and colore and regardless of any previous condition of servitude, the full enjoyment of any of the accommodations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense, forfeit and pay the sum of five hun- dred dollars to the person aggrieved thereby, to be recovered in an action of debt, with full costs ; and shall also, for every such offense, be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined hot less than five hundred nor more than one thousand dollars, or shall be imprisoned 'For decisions upon these offenses JUat. Dig., titles Foegbby; Fhadd^ as defined in former laws, aee Abb. Post-office ; and the like, " 18 Stat, at L., 335, 336, § 1. CRIMES. 247 not less than thirty days nor more than one year : Provided, That all persons may elect to sne for the penalty aforesaid or to proceed under their rights at common law and by State statutes ; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this proviso shall not apply to criminal proceedings, either under this act or the criminal law of any State: And promded further, That a judgment for the pen- alty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respec- tively." ' And it confers jurisdiction of all crimes and offenses against and violations of the act, on the Territorial, District and Circuit Courts, and prescribes, by stringent provisions, duties of district attorneys and marshals in enforcing the act ; including a provision that, " Any district attorney who shall willfully fail to institute and prosecute the proceedings herein required, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered by an action of debt, with full costs, and shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not less than one thousand nor more than five thousand dollars : Provided, That a judgment for the penalty in favor of the party aggrieved against any such district attorney, or a judgment upon an indictment against any such district attorney, shall be a bar to either prosecution respec- tively." ' ' Ihid, § 3. amendments of the Constitution, and " For decisions of the national of the Civil Rights acts of Congress, see courts on the constitutionality, con- Abbott Nat. Dig., title Civil Rights. Btruction and effect of the recent For, decisions of State courts, see United States Ann. Dig., same title. CHAPTER VI, EQUITY. The distinction between remedies at law and in equity, wMch originated in the earliest periods of English judicial history, and existed almost unquestioned at the organization of our national government, is recognized in the Constitution ; and is there referred to as one of those fundamental facts in jurisprudence no obliteration of which was to be anticipated. The advance which has been made in social and judicial sci- ' ence, during the past quarter of a century, has been marked' by an extensive disposition to question the usefulness of this distinction. Several of the States have entered deliberately and unreservedly upon the endeavor to enforce civil rights and redress civil injuries by uniform methods of pleading and procedure, and in tribunals homogeneous in nature and struc- ture. And in other States, less disposed to obliterate ancient landmarks, partial improvements in the same direction 'have been introduced. But no important or extended changes of this nature have invaded the tribunals of the United States. They still exercise judicial power in cases "at law" and in suits "inequity," — substantially as the distinction was un- derstood and practiced when the Constitution was framed. The laws of a particular State abolishing the distinction be- tween proceedings at law and in equity do not affect proceed- ings in the courts of the United States in such State. The Constitution of the United States, in creating and defining the judicial power of the general government, establishes this distinction between law and equity ; and a party who claims a legal title must proceed at law ; while, if the claim is an [463] equitable one, he must proceed according to the rules [248] EQUITY. 249 wHch. the Supreme Court has prescribed, regulating pro- ceedings in equity.' Nor is tbis principle affected or impaired by the legislation of Congress, directing that the laws of the State shall be re- garded as rules of decision in the courts of the United States. It was not the intention of Congress, by the ena,ctments relat- ing to the adoption of State laws in the courts of the United Sta.tes, to confine those cdul-ts to the same remedies which then existed in the courts of the respective States. The rule is, that the remedies in the courts of the United States are to be at common law or equity, not according to the prac- tice of the particular State, but according to the general principles of common law and equity jurisprudence, as those systems are distinguished and defined in England.' Although it may be the course of practice in the courts of the State, to blend in the proceeding the principles of law and eq- uity, in the national courts sitting in the State the two systems must be kept distinct and separate. This principle is funda- mental in these courts, and cannot be departed from. They, therefore, in a suit at law, exclude the hearing and determi- nation of all questions that belong appropriately and exclu- sively to the jurisdiction of a court of equity. In a case call- ing for their interposition upon equitable considerations, relief should be sought by bill in equity.' And although the forms of proceeding and practice in the State courts have been adopted in the District Court, yet the adoption of the State practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit.* Pursuant to these views, the settled and established rule is that the Circuit Courts of the United States have jurisdiction in equity, derived from the Constitution and laws of the Union, which is uniform throughout all the [464] ' Bennett v. Buttcr'worth, 11 How., ' Robinson v. Campbell, 3 Wheat., 669. See, also, Loring «. Downer, 1 213, 232; United States ■». Howland, McAlL, 360; Byrd ». Badger, U., 443; 4 Id., 108, 115; Wayman v. Southard, Watkins ®. Holman, 16 Pet., 25; 10 Id., 1; Thompson ».' Phillips, Smith «. McCann, 24 Row., 398; Baldw., 246; Pomeroy v. Manin, 2 Mezes v. Greer, 1 McAll., 401; Bank Paine, 476. of Hamilton v. Dudley, 3 Pet., 493; ' Jones «. McMasters, 20 Sow., 8. Thompson v. Bailroad Companies, 6 ' Bennett v. Butterworth, 11 Bow.-, Wall., 134. 669; McCoUum s. Eager, 3 Id., 61. 250 SUByECTS OF JURISDICTION. States." The jurisdiction is limited to certain persons and subjects, but within those limits it is complete and full.' Their jurisdiction in this respect is derived from the Constitu- tion and laws of the United States. Their powers and rules of decision in equity cases are the same in all the States. Their practice is regulated by themselves, and by the rules established by the Supreme Court. In all these respects they are unaffected by State legislation.' They may exercise general equitable jurisdiction, notwithstanding there is no court of general equity jurisdiction organized under the laws of the State in which the Circuit Court is held.* And the Federal judiciary are not bound by the decision of a State court upon a question of equity jurisprudence. The Consti- tution having recognized equity as a branch of jurisprudence, whenever a case in equity arises under the judicial power of the United States, it is for the courts of the United States, and for the Supreme Court, in the last resort, to decide the principles applicable to it." ■ Robinson e. Campbell, 3 Wheat.^ 213, 231; Neves v. Scott, 13 How., 268; Mtch v. Oreighton, 24 iS., 159; Noonan «. Lee, 3 Blade, 499. ^ United States «. Parrott, 1 Me All., 371, 287; Baker «. Biddle, Baldw., 894. ' Noonan v. Lee, 2 Blaeh, 499 ; Gor- don ». Hobart, 2 Svmn., 401; Flagg V. Mann, Id., 486; Fletcher v. Morey, 2 Btory C. Ot., 555; Mayer v. Foulk- rod, 4 Wash. 0. Ot., 349; Lanmon v. Clark, 4 McLean, 18 ; United States ». Parrott, 1 McAll., 447. Therefore, it does hot prevent the equity jurisdiction of the United States that there is a remedy under the local law. Gordon v. Hobart, 2 Sumn., 501. And while a State law extending equity jurisdiction upon a particular subject, — e. g., cloud on title, — may be regarded as extending the jurisdiction of the Circuit Court held within that State, in such class of cases (Bayerque v. Cohen, 1 McAll., 113; but see Lorman «. Clarke, 2 Ma- Lean, 568) ; yet where a law of tlie State has provided for relief at law in the State courts, which equity alone could previously give, this does not afifect the equitable jurisdiction of the courts of the United States. Cropper V. Coburn, 3 Curt. 0. Ot., 465. As to how far peculiar or novel remedies, authorized by the special laws of a particular State, wid be recognized and allowed to be pursued and en- forced in the courts of the Union, — see Palmer v. Allen, 7 Orancli., 550; Ross «. Boe ex dem. Barland, 1 Pet., 655 ; McFaul ®. Ramsey, 20 How., 523 ; Exp. Biddle, 2 Mas., 472; £?«^. Kaino, 8 Blatelif., 1; Campbell ®. Claudius, Pet. 0. 0«., 484; Strachen k Clyburn, 3 McLean, 174; Lanmon ®. Clark, 4 Id., 18; Hacker i>. Stevens, Id., 535; Hooper «. Soheimer, 23 How.^ 335. A circuit court may sustain a suit by a receiver of a railroad company, seek- ing to enjoin officers of the State from granting away lands previously grant- ed by the State to the company, in the exercise of the general equity jurisdic- tion of the national courts, and without reliance upon any statute of the State authoiizing such suits by re- ceivers. Davis V. Gray, 16 Wall., 303. * Lorman v. Clarke, 3 McLean, 568. And see, also, Penns v. Klyne, Pet. 0. Ot., 497, note. ' Neves v. Scott, 13 How., 268. EQUITY. 2J1 Moreover, sections 913 and 914 of the Revision, which embody the most recent enactments authorizing any adoption of State laws of procedure for the national courts, clearly recognize the distinction of equity and admiralty as distinct systems of procedure, 'to be permanently preserved ; the adoption of State laws extends only to "civil causes other than equity and admiralty causes ; " a description which includes so much of the remedy by " civil action," in use in New York and other States, having reformed codes of procedure, as cor- responds with common law forms of action. Sect. 122. Scope of the jurisdiction. — The equitable jurisdic- tion of the Circuit Courts, as it, has been shaped by the legislation of Congress, and developed by the course of [465] adjudication, forms, in many respects, the most impor- tant branch of their civil authority. The exercise of this juris- diction is regulated, and its scope and limits are prescribed, principally by the provisions of the Revised Statutes, and by rules framed by the Supreme Court. Subject to the author- ity of these, the Circuit Courts, when sitting in equity, are, in general, guided by the standard principles and authorities of equity jurisprudence in England.' That fundamental rule of equity jurisprudence, by which chancery abstains from interfering where the complainant has a remedy at law, has been distinctly recognized, both by leg- islation and by decision, as applicable to these courts. It was expressly prescribed at the outset of their organiza- tion, by the Judiciary Act of 1789," which enacts that " suits in equity shall not be sustained in either of the courts of the United States in any case where plain, adequate, and com- plete remedy may be had at law." This provision, however, is regarded as declaratory ; it merely states explicitly the l^ule which would have been deduced by the courts from the ^general nature of the jurisdiction, in the absence of statute." ■ That the United States courts of the country, subject to the control of equity and admiralty jurisdiction the legislature, — see Grayson v. Vir- adopt, as a general rule, that practice ginia, 3 Ball., 330 ; Vattier « . Hinde, which is founded on the custom and 7 Pet., 353, 374; Rhode Island ». Mas- usages of courts of admiralty and equ- sachusetts, 14 Id., 310, 357; Pennsyl- ity, constituted on similar principles; vania». "Wheeling Bridge Co., 13 Bma, but the courts are authorized to make 518; Florida v. Georgia, 17 Id., 478. such deviations as are necessary to ^ Act of September 34, 1789, § 16, adapt the process and rules of the \ Stat, at L., 82. court to the peculiar circumstances of ^ See Boyce ®. Grundy, 3 Pet., 310: 252 SUByECTS OF JURIS DICTION. And the rule has been uniformly and steadily applied a^ an unquestioned limit to the equity powers of the courts. Where the injury of which the party complains is one for which he has a plain, complete, and adequate remedy at law, the courts of the United States cannot take jurisdiction of a bill in equity for relief ; and the objection may be taken by the court on its own motion, and although not I'aised by the pleadings. ' [466] But it does not oust the jurisdiction of the equity side of the court, that the plaintiff has a remedy on the common law side, unless it appear that such remedy be ade- quate and complete to the object of the suit.' Though there may be a legal remedy, yet if a Tnore com- plete remedy can be had in chancery, that is a sufficient ground of jurisdiction.' In a number of cases in which the courts of common law and courts of chancery have concur- rent jurisdiction, the ground of equity jurisdiction is not that the common law courts are incompetent to afford a remedy, but that such remedy is less complete than the court of equity, from its organization, is capable of affording. Cases, for example, of fraud, dower, account, and partition, are clearly cognizable, to some extent, in common law courts ; and yet the court of chancery has always exercised a concur- rent jurisdiction over them. Courts of law have, in modern times, with great propriety, dispensed with the profert of a lost bond, and yet the original jurisdiction of a court of equity to grant relief, by establishing the instrument, remains unimpaired. Therefore, where a case is otherwise proper for the jurisdiction of a court of equity, it is no objec- tion to the exercise of such jurisdiction, that the party may have some remedy at law ; as on the other hand, the mere cir- Bean «. Smith, 3 Mas., 252; Hunt i>, 74; Andrews v. Solomon, Pet. 0. Ct., Danforth, 3 Curt. G. Ot., 593; Bunee 856; Pierpont «. Fowle, 3 Woodb. & V. Gallagher, 5 Blatehf., 481; Brown M., 33; Shapley ». Eangeley, 1 Id., V. Paciflij Mail Steamship Co., Id.,S^5. 313. ' Parker v. Winnipiaeogee Lake '' Mayer v. Foulkrod, 4 Wash. O. Ot., Cotton & Woolen Co., 3 Blaci, 545; 849; Bunce ». Gallagher, 5 Blatehf., Hepburn v. Dunlop, 1 Wheat. 179, 481 ; Brown «. Pacific Mail Steamship 195; Smith v. Mclver, 9 Jd., 533; Co., Id., 525. Baker «. Biddle, Baldw., 394, 408; ' Boyce «. Grundy, 3 P«i., 210; Wy- Gaines ». Nicholson, 9 Eow., 856; lie ». Coxe, 15 Bow., 4:15; Barber v. Hipp ®. Babin, IQ Id., 271; Graves «. Barber, 21 ld.,5SZ; Warren v. Emer- Bi)ston Marine Ins. Co., 3 Oranch., son, 1 Curt. 0. Ot., 239; Bean «. 419; Watson «. Sutherland, S Wall., Smith, 2 i/as., 352. EQUITY. 253 cumstance that a more complete remedy can be afforded in the former than in the latter case, is not necessarily of itself a ground of jurisdiction. The inquiry must be, whether the case is within any of the general branches of equity jurisdic- tion, as claimed and exercised by a court of chancery.' ■ Harrison •o. Rowan, 4 Washi O, Gt., 203. Whilst alterations in the jurisdiction of the State courts cannot affect the equitable jurisdiction of the Circuit Courts of the United States, so long as the equitable rights themselves remain, yet an enlargement of equitable rights may be administered by the Circuit Courts as well as by the courts of the State, Case of Broderick's Will, 21 Wcdl., 603. The decisions of the United States courts, upon cases arising in the vari- ous departments of equitable jurisdic- tion, are collected under the titles deemed appropriate, in Abbott's Na- tional Digest. See, particularly, the titles AccoinsiT; Canchillation ov In- STBOMBNTS; ClOTJDS UPON TiTLB ; Copykight; Ckeditob's Suit; Dis- COVEBY ; FoBBCiosuEE ; Fraud ; Fhau- dulent contetanobs ; husband and Wife ; Injunctions ; Litebabt Pbop- ebtt; Mistake; Mobtgageb; Pas- ties ; Partnership ; Patents ; Plead- ing IN Equity; Peactioe; Specipiq Pbrpobmanoe; Vbmdob and Pub- OBABEB. CHAPTER VII. EXTKADITION- Bt "extradition" is meant the delivering up, by one government to another, of an individual who has fled to the territory of the latter, to escape the operation of the laws of the former. Proceedings auxiliary to cases of extradition arise in the tribunals of the United States in two classes of cases, which ■originate under distinct systems of law. One class comprises persons who have fled from one of the United States or organ- ized Territories, to take refuge in another. The other class comprises persons who have fled from foreign countries to take refuge anywhere within the United States. Cases of the latter class are governed by provisions of treaties between the United States and foreign countries, and acts of Congress passed to carry those treaties into effect. Cases' of the former class arise under a provision of the Constitution, and statutes passed pursuant to it. That provision covers, in two differ- ent clauses, respectively, fugitives from justice, and fugitiijes from service or labor. But the latter provision, although not rendered wholly obsolete by the abolition of slavery, — as it may be invoked in the case of a fugitive apprentice,' — pos- sesses at the present day but little practical importance. Our explanations will, therefore, be confined to the extradi- tion of fugitives from justice. ' Boaler n. Cummines, 1 Am. Law the latter had, upon one occasion, Beg.^ 654. In this case a minor had returned his son to his master, from hound himself as an apprentice in whom he had absconded. It was Delaware, under the act of February held that the apprentice might be 5, 1827, with the knowledge of his arrested by viitue of a commissioner's father, who lived in Pennsylvania, and warrant, and remanded to his master [254] as a fugitive from labor. EXTRADITION. 255 Sect. 123. Fugitives from a foreign country. — The extra- [472] dition of offenders who have fled to this country to escape the justice of a foreign government is a matter resting between the government of the United States, considered as a homogeneous national sovereignty, and the foreign govern- ment making the demand.' The States as such are not con- «cerned. The act is an act, of national sovereignty, which the United States government alone, as the foreign affairs of this country are practically administered, is accustomed to perform." ' So far as extradition aifeets the Territories, it is to be deduced from acts of Congress founded upon their power to legislate for the Territories. ' See Holmes ». Jennison, 14 Pet., 540; 3 Op. Att.-Oen., 559. The case of Holmes v. Jennison brought before the Supreme Court the question of the power of the governor of Vermont to make a foreign extradition. The case finally turned upon the question of the jurisdiction of the Supreme Court to revise the decision of the court below ; and no formal judgment was rendered upon the right of extradition. A ma- jority of the court, however, concurred in the position that the governor 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 govern- ment ; and the views of the court are said to have been adopted in the case by the Supreme Court of Vermont. Those views, briefly stated, are that the power to arrest and surrender to a ioreign government a person charged with the commission of a crime abroad, — the case presented not being one of the exercise of a police power of ex- pelling from a State a person unwor- thy to reside in it, but the surrender of a fugitive from the justice of a for- eign government as an act of comity t.-j them, — is a part of the foreign in- t Tcourse of this country, and has been conlerred upon the general govern- ment. It is embraced within the ■treaty-making power, which power is vested, under the Constitution, exclu- sively in tiie general government. It is prohibited to the States by the ^clauses which declare that no State shall enter into any treaty, agreement, or compact with a foreign power. There is no necessity, in order to bring a case within these prohibitions, that there should be a mutual treaty for extradition of fugitives generally. The Constitution prohibits an agree- ment on the part of a State (without the consent of Congress) to deliver up a single fugitive, and the fact that there is no formal agreement is unim- portant. The understanding between the parties that the prisoner is seized for the purpose of being delivered up to the agents of the foreign govern- ment, and that he is to be received by them upon such delivery, is such an agreement as violates the prohibition. And aside from the express prohibi- tions contained in the Constitution, the exercise of the power of extradi- tion by the State is inconsistent with and repugnant to the power conferred by the Constitution upon the general government. The Constitution, more- over, admits no mode by which, as towards European nations, a single State can exercise the power of extra- dition. The several States have no mode of communicating or holding negotiations with foreign nations. They neither send nor receive ambas- sadors to or from foreign nations. That power has been expressly con- fided to the general governrntnt. The whole tenor of the Constitution shows that its purpose was to commit the whole of our foreign intercourse to the general government; 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 256 SUByHCTS OF JURISDICTION [478] It is to be observed at the outset that the law of na- tions does not give a foreign government a right to de- mand of the government of the United States a surrender of a citizen or subject of such foreign government, who has com- mitted a crime in his own country, and is afterwards found within the limits of the United States. Such aright can only be claimed under a treaty stipulation. It is a matter of conven- tional arrangement, between States ; a duty of comity, not of strict right ; and it is the settled policy of the United States not to make such extradition except in virtue of express stipula- tions to that effect ; ' or under very extraordinary circumstances. Thus the cases in which, and the crimes for which, a per- son accused may be surrendered to a foreign government, are precisely those which are defined by treaty between the United States and the government making the demand; and if there is no such treaty, no extradition can be demanded. It is probable that the provisions of such a treaty, if com- plete in their terms, might be executed by the judiciary, without directions thereto in an act of Congress ; as a treaty of the United States operates as a law." But the subject is covered by the provisions of a general act of Congress, the act of August 12, 1848,= and embodied in section 5370, 5274 of the Revision, which contains directions for the action of the judi- ciary, applicable to all cases in which there now exists, or here- after may exist, any treaty for extradition between the [474] government of the United States and any foreign govern- ment. Section 6270, provides that any justice of the Supreme Court, circuit judge, district judge, United States commissioner, or judge of a State court of record of general jurisdiction, "may, upon complaint made under oath, charg- ing any person found within the limits of any State, Dis- trict, or Territory, with having committed within the juris- diction of any such foreign government any of the crimes provided for by such treaty or convention, issue his warrant for the apprehension of the person so charged, that he may authoritiea. To admit a power of ex- Brock. Marsh., 493 ; United State *i. tradition as vested in the single Davis, 3 ^'awin., 48'i ; 1 Op. Att.-Qen., States, is utterly incompatible with 68; Jd., 510; 3 Id., 359; 3 Id., 661 this intention. 6 Id., 85; 7 Id., 356. 'Matter of Metzger, 5 How., 176; " See Matter of British Prisoners,]" Case of Jose Ferreira dos Santas, 2 Woodb. & M., 66. ' 9 Stat, at L., 302. EXTRADITION. 257 be brouglit before such justice, judge, or commissioner, to the end that the evidence of criminality may be heard and consi- dered. If, on such hearing, he deems the evidence sufficient to sustain the charge under the provisions of the proper treaty or convention, he shall certify the same, together with a copy of all the testimony taken before him, to the Secretary of State, that a warrant may issue upon the recLuisition of the proper authorities of such foreign government, for the surren- der of such person, according to the stipulations of the treaty or convention ; and he shall issue his warrant for the com- mitment of the person so charged to the proper jail, there to remain until such surrender shall be made." Section 5271 was, by act of June 19, 1876, amended to read as follows : "In every case of complaint and of a hearing upon the return of the warrant of arrest, any depositions, warrants, or other papers offered in evidence, shall be admitted and received for the purpose of such hearing if they shall be prop- erly and legally authenticated so as to entitle them to be received as evidence' of the criminality of the person so appre- hended by the tribunals of the foreign country from which the accused party shall have escaped, and copies of any such depositions, warrants, or other papers, shall, if authenticated according to the law of such foreign country, be in like man- ner received as evidence ; and the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof > that any such deposition, warrant or other paper, or copy thereof, is authenticated in the manner required in this section." Provision is further made to enforce actual surrender of the accused to the agents of the foreign government ; and for his discharge, in case of delay thereafter, to convey him abroad. We reserve any statement of details relative to the pro- ceedings to be taken under this act, the quantity of evidence required, &c., for the subject of Procedure ; and conclude this view of the right of foreign extradition with a mention of the principal treaty stipulations by which it is defined. By our treaty with Great Britain, of August 9, 1842,' it ia ' Art. X., 8 Stnt. at L. At date of writing, tliis treaty is understood to be suspended. Vol. I.— 17 258 SUSyUCTS OF JURISDICTION. agreed that the United States and Grreat Britain "shall, upon mutual requisitions by them, or their ministers, officers, or authorities, respectively made, deliver up to justice all per- sons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other : provided, that this shall only be done upon such evidence of criminality as, ac- cording to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offense had been there committed." Our treaty with the Hawaiian Islands, of December 20, 1849," contains provisions on the subject of extradition which correspond with those of the treaty with Grreat Britain, above mentioned. By our treatj' with France, of November 9, 1843,' it is agreed that the United States and France "shall, on requisi- tions made in their name, through the medium of their re- spective diplomatix; agents, deliver up to justice persons [475] who, being accused of " — the following crimes, — "mur- der, (comprehending the crimes designated in the French penal code by the terms, assassination, parricide, infanticide, and poisoning,) or with an attempt to commit murder, or with rape, or with forgery, or with arson, or with embezzlement by public officers, when the same is punishable with infamous punishment," — "shall seek an asylum, or shall be 'found within the territories of the other : provided, that this shall be done only when the fact of the commission of the crime shall be so established as that the laws of the country in which the fugitive or the person so accused shall be found, would justify his or her apprehension and commitment for trial, if the crime had been there committed ;" and shall not be done for offenses of a purely political character. Robbery and burglary are added to the above enumeration by the treaty of February 24, 1845 ;" and by the treaty of February 10, 1858,* the above provisions are extended to per- sons charged, whether as principals, accessories, or accom- • Art. XIV. 9 Btat. at /".., 981. = 8 Stat, at X., 617. ' Arts. I., II., V. 8 Stat. atL., 583, * 11 Stat, at L., 741. EXTRADITION. 259 plices, with "forging or knowingly passing or putting in circulation counterfeit coin or bank notes or other paper cur- rent as money, with intent to defraud any person or persons ; embezzlement by any person or persons hired or salaried to the detriment of their employers, when these crimes are sub- ject to infamous punishment." Our treaty with the Orange Free State of December 22, 1871' covers substantially the same crimes as the treaties with France, with the addition of piracy. Our treaty with Sweden, of March 21, I860,' provides for the extradition of persons "who shall have been charged with or sentenced for any of the following crimes, to wit : Murder, (including assassination, parricide, infanticide, and poisoning,) or attempt to commit murder ; rape ; piracy, (in- cluding mutiny on board a ship, whenever the crew or part thereof, by fraud or violence against the commander, have taken possession of the vessel ;) arson ; robbery and burglary ; forgery, and the fabrication or circulation of counterfeit money, whether coin or paper money ; embezzlement by pub- lic officers, including appropriation of public funds." But the stipulation is declared not to apply to citizens or subjects of the nation upon whom the demand is made ; to offenses of a political character ; nor, until after trial and punish- ment or acquittal, to persons who have committed new [476] crimes within the State to which they have fled. Our treaties with Austria, of July 3, 1856,' and San Sal- vador, of May 23, 1870,* are substantially the same in the enumeration of offenses as that with Sweden, above men- tioned. So are our treaties with Nicaragua, of June 25, 1870,' and with Ecuador of June 28, 1872,° except that these omit attempts to murder. Our treaties with Venezuela, of August 27, I860,' with the Dominican Jtepublic, of February 8, 1867,' and with Italy, of March 23, 1868,' also substantially conform, in the enume- ration of offenses, to that with Sweden ; the most important ' Art. Yin., IX. 18 Stai. at L,, '. 18 Sfat. atZ., 73. 65. ' Art. XXVIU. 12 Stat, at L. " Art. II. 13 Btat. at L., 1186. 1159. = 11 Stat, at L., 691. ' Art. XXVUL 15 Stat, at L., * 18 Stat, at L., 9. 489. ' 17 Stat, at L., 25. • Art. H. 15 StaA. at L., 630. 260 sub;^i:cts of jurisdiction. difference being the addition of embezzlement from employers by persons hired or salaried. Our treaty with Bwitzerland, of ISTov ember 25, 1850/ also corresponds, in substance, with the treaty with Sweden ; ex- cepting that counterfeiting is omitted, and embezzlement by employees is included in the crimes enumerated. By our treaty with Prussia, of June 16, 1852,° it is agreed that "the United States and Prussia, and the other States of the Germanic Confederation included in, or which may here- after accede to this convention, shall upon mutual requisi- tions by them or their ministers, officers, or authorities, respec- tively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, or the fabrication or Circula- tion of counterfeit money, whether coin or paper money, or the embezzlement of public moneys committed within the jurisdiction of either party, shall seek an asylum, or shall be found within the territories of the other : Provided, that this shall only be done upon such evidence of criminality as, accor- ding to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offense had there been committed." And by a subsequent treaty with Prussia, of February 22, 1868,° the above provisions are extended to all the States of the North German Confederation.* [477] Our treaty with Bavaria, of September 19>, 1853,' contains the same provisions as that with Prussia, By our treaty with Mexico, of December 11, 1861," persons ' Art. XIV. 11 Stat, at £., 593. ' from justice shall be made only by the ' Art. I. 10 Stat, at L., 965. authority of the executive thereof, ex- ' Art. in. IS Stat, at L., 616. cept in the case of crimes committed " Between the dates of these two within the limits of the frontier states treaties the provisions of the treaty of or territories, in which latter case the 1853 were acceded to'by several of the surrender may be made by the chief German States. civil authority thereof, or such chief ^ 10 Stat, at L., 1033. Re-declared civil or judicial authority of the dis- by Treaty of May 36, 1868, Art. III., tricts or counties bordering on the 35 Stat, at L., 663. frontier as may for this purpose be " Art. III. 13 Stat, at L., 1300. duly authorized by the said chief civil Article IV. of the same treaty pro- authority of the said frontier states or vides that "on the part of each territories, or, if, from any cause, the country the surrender of fugitives civil authority of Such state or territo- EXTRADITION. 261 may be delivered up who are charged, whether as principals, accessories, or accomplices, with either of the following crimes : " Murder, (including assassination, parricide, infanti- cide, and poisoning ; ) assault with intent to commit murder ; mutilation ; piracy ; arson ; rape ; kidnapping, defining the same to be the taking and carrying away of a free person by force or deception ; forgery, including the forging or making, or knowingly passing or putting in circulation counterfeit coin or bank notes, or other paper current as money, with in- tent to defraud any person or persons ; the introduction or making of instruments for the fabrication of counterfeit coin or bank notes, or other paper current as money ; embezzle- ment of public moneys ; robbery, defining the same to be the felonious and forcible taking from the person of another of goods or money to any value, by violence or putting them in fear ; ,burglary, defining the same to be breaking and entering into the house of another with intent to commit felony ; and the crime of larceny, of cattle, or other goods and chattels, of the value of twenty-five dollars or more, when the same is committed within the frontier States or Territories of the con- tracting parties." Our treaty with Peru of September 12, 1870,' provides extra- dition for murder ; for rape and abduction by force ; bigamy and arson ; kidnapping by force or deception ; robbery, lar- ceny, and burglary ; counterfeiting ; forgery, broadly defined and extended to public securities, and judicial acts and records, postage and revenue stamps, public and authentic deeds and documents ; embezzlement, of public or private funds ; fraudulent bankruptcy ; frjiudulent barratry ; mutiny, when the crew have taken forcible possession of the ship or have transferred it to pirates ; severe injuries intention- ally caused on railroads, to telegraph lines, or to persons by means of explosions of mines or steam-boilers ; and piracy. But the treaty does not apply to any crime or' offense of a political character, nor to any crime or offense committed prior to the date of the treaty, except the crimes of murder ry shall be suspended, then such stir- This treaty is re-declared by that of render may be made by the chief mill- July 10, 1868, Art. III., 15 Stat, at L., tary officer in command of such state 688. or territory." '■ 18 Stat, at L., 35. 262 SUSyECTS OF yURISDICTION. and arson ; and the person delivered up shall in no case be tried for any crime committed previously to that for which his or their surrender is asked. Moreover, neither of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention. And if the person whose surrender may be claimed pursu- ant to the stipulations of the present treaty shall have been arrested for the commission of offences in the country where he has sought an asylum, or shall have been convicted thereof, his extradition may be deferred until he shall have been acquitted, or have served the term of imprisonment to which he may have been sentenced. By oar treaty with Belgium, of March 19, 1874,' persons shall be delivered up who shall have been convicted of or be charged with murder, comprehending the crimes designated in the Belgian penal Code by the terms of parricide, assassination, poisoning, and infanticide ; the attempt to commit murder; rape, arson, piracy, and mutiny on board a ship, whenever the crew, or part thereof, by fraud or violence against the commander, have taken possession of the vessel ; burglary (defined to be the act of breaking and entering by night into the house of another with the intent to commit felony;) robbery (defined tp be the act of feloniously and forcibly tak- ing from the person of another goods or money by violence or putting him in fear ;) and the corresponding crimes punished by the Belgian laws under the description of thefts com- mitted in an inhabited Jiouse by night, and by breaking in by climbing or forcibly ; and thefts committed with vio- lence or by means of thefts ; forgery (by which is under- stood the utterance of forged papers, and also counterfeiting of public, sovereign, or government acts :) the fabrication or circulation of counterfeit money, either coin or paper, or of counterfeit public bonds, bank notes, obligations, or, in general, anything being a title or instrument of credit ; the counterfeiting of seals, dies, stamps, and marks of state and public administrations, and the utterance thereof ; embezzlement of public moneys committed within the juris- diction of either party by public officers or depositaries; ' Art. n., 18 Hlab. at L., 137. EXTRADITION. 263 and embezzlement by any person or persons, hired or salaried, to the detriment of . their employers, when the crime is sub- ject to punishment by the laws of the place where it was com- mitted. Our treaty with the Ottoman Empire, of August 11, 1874, contains provisions almost precisely identical with those of the treaty with Belgium, last mentioned ; except there is nothing to correspond to the paragraph relating to thefts as punished by Belgian laws. Sect. 124. Fugitives from one State to another. — That [468] clause of the Constitution which authorizes the return of fugitives from justice, directs 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 having jurisdiction of the crime.'" In order to carry this provision fully into effect. Congress, in 1793,' passed an act declaring that when the executive authority of a State shall demand any person as a fugitive from justice, of the executive authority of any State or Terri- tory, to which such person shall have fled, the demand being accompanied by certain formal proofs, " it shall be the duty of the executive authority of the State or Territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the execu- tive authority making such demand, or the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear." The agent Is empowered to transport the accused to the State or Territory from which he fled, the return being made at the expense of such State or Territory. If no agent appears within six months from the arrest, the prisoner may be dis- charged. The important question, what system of laws is to guide in determining whether the acts charged against the accused con- stitute a " crime," came up for determination in the compara- tively recent case of Commonwealth of Kentucky t. Dennison.* • Const, of U. S., JLrt. IV., § ii., 3. Stat, at L., 303 ; ifo«.5to<.,§S378, 5379. ' Act of February 13, 1793, § 1, 1 =34 Eow., 66. 264 SUByECTS OF JURISDICTION. The laws of Kentucky, at the time when this case arose, made it a criminal offense to assist a slave to escape ; but in Ohio, it being a free State, such acts were not recog- nized as constituting a crime. One La,go was indicted in Ken- tucky for having assisted Charlotte, a slave, in an attempt to escape from her owner. Lago having escaped into [469] Ohio, a demand was made upon the Governor of Ohio, to return him to Kentucky as a fugitive from justice. |l The governor of Ohio, acting under the advice of thfe attorney- general of the State, refused the demand, upon the ground that assisting a slave to escape was not a crime by the law of Ohio, or by the common law ; and although it had been made punishable by the Statute of Kentucky, yet the Constitution did not oblige one State to surrender persons to another on the charge that they have committed an offense not known to the laws of the former, nor affecting public safety, nor gene- rally regarded as malum, in se. It was claimed that the right of extradition under the Constitution is limited to such acts as constituted treason or felony by the common law as it existed when the Constitution was adopted, or as are deemed crimes by the usages and laws of civilized nations. This refusal led to an application to the Supreme Court for a man- damus commanding Governor Dennison to make the arrest and return of Lago, as demanded. The Supreme Court held that the words "treason, felony, or other crime," as employed in the constitutional clause already quoted, embrace every act forbidden and made punishable by a law of the State claiming the return, of a fugitive. The word crime, by itself, includes every offense. It would have included treason and felony, without those offenses being specially mentioned. But "treason" and "felony" were specified, not for the purpose of confining the meaning of the term "crime" to offenses recognized by the common law and the usages of nations, but rather for the purpose of guarding against any restriction of the word " crime," and to prevent the provision from being construed by the laws and usages of independent nations in compacts for delivering up fugitives from justice. Accord- ing to these usages, even where the obligation to deliver the fugitive is admitted, persons who have fled on account of political offenses are almost always excepted, and the nation EXTRADITION. 265 upon which the demand is made also uniformly claims and exercises a discretion in weighing the evidence of the crime, and the character of the offense. The English government, from which we have borrowed bur general system of law and jurisprudence, has always refused to deliver up polit- ical oflEenders who have sought an asylum within its domin- ions. And as the States of this Union, although united as one nation for certain specified purposes, are yet, so far as concerns their internal government, separate sove- [470] reignties, independent of each other, it was obviously deemed necessary to show, by the terms used, that this com- pact was not to be regarded or construed as an ordinary treaty for extradition between nations altogether independent of each other, but was intended to embrace political offense's against the sovereignty of the State, as well as all other crimes. And as treason was also a ' ' felony, ' ' it was necessary to insert those words, to show, in language that could not be mistaken, that political offenders were included in it. For this was not a compact of peace and comity between separate nations who had no claim on each other for mutual support, but a compact binding them to give aid and assistance to each other in executing their laws, and to support each other in preserving order and law within their confines, whenever such aid was needed and required ; for it is manifest that the statesmen who framed the Constitution were fully sensible, that from the complex character of the government, it must fail unless the States mutually supported each other and the general government ; and that nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a State, by passing over a mathe- matical line which divides it from another, to defy its process, and stand ready, under the protection of such other State, to repeat the offense as soon as opportunity offered. To exclude from the clause new offenses created by a stat- ute 'of the State claiming the return, and growing out of its local institutions, and which are not admitted to be offenses in the State where the fugitive is found, nor so regarded by the general usage of civilized nations, would render the clause useless for any practical purpose. For where can the line of division be drawn with anything like certainty % Who is to 266 SUSyECTS OF JURISDICTION. make it ? The governor of tlie demanding State would prob- ably draw one line, and the governor of the other State an- other. And if they differ, who is to decide between them % Under such a vague and indefinite construction, the article would not be a bond of peace and union, but a constant source of controversy and irritating discussion. Looking, therefore, to the words of the Constitution, —to the obvious policy and necessity of this provision to preserve harmony between States, and order and law within their [471] respective borders, — to the early adoption of similar provisions by the colonies and by the confederated States, whose mutual interest it was to give each other aid and support whenever it was needed, — the conclusion was held to be irresistible, that this compact engrafted in the Constitution, includes, and was intended to include, every offense made punishable by the law of the State in which it was committed, and that it gives the right to the executive * authority of such State to demand the fugitive from the exe- cutive authority of the State in which he is found ; that the right given to "demand" implies that it is an absolute right ; and it follows that there must be a correlative obliga- tion to deliver, without any reference to the character of the crime charged, or to the policy or laws of the State to which the fugitive has fled. But the court further held that while the duty of a gov- ernor, upon whom a demand for extradition is made, is merely ministerial, and vests in him no discretion to inquire into the nature or character of the crime, but he is called upo^ by the Constitution to make the arrest and delivery, at once, upon the requisite demand and proofs being laid before him, yet if he refuses to perform the duty, there is no power conferred upon the judicial or any other department of the general government, to compel him to perform it. The gen- eral government has no power, under the Constitution, to im- pose duties upon a State officer, as such, and compel him to perform them. Congress may authorize a particular State ofiicer to perform a particular duty ; but, if he declines, it does not follow that he may be coerced. The execution of such a power is done as matter of comity, and not of com- pulsory obligation. Upon this ground, therefore, — that no power is delegated to the judiciary of the United States to EXTRADITION. 267 compel the executive of a State to act, — the application for a mandamus was refused^ The general principle, however, stands ; recommended, to say the least, to the executive oflBcers of the respective States ; that either State has a right, under the Constitution, to reclaim from another any individual who has .escaped within the territory of the latter, after having violated any criminal law of the former State. But to authorize the arrest and removal of a fugitive [472] from justice to the State having jurisdiction of the crime, it must distinctly appear from the affidavits before the magistrate, upon which the rec[uisition is based, that the STip- posed criminal committed the crime in the State from which the requisition proceeds.' ' Exp. Smith, 3 McLean, 131 ; 6 Law military officers may be surrendered Be'p., 57. for trial under State laws, — see 1 Op. As to the cases in which naval or AU. Gen., 344; 3 Id., 10. CHAPTER VIII. HABEAS CORPFS. A VEET important protection to the right of personal liberty throughout the United States is found in the writ of Jiabeas corpus, as vested in and employed by the federal Judiciary. The permanence of this remedy is guaranteed by the Constitution, which declares that it " shall not be sus- pended, unless when in cases of rebellion or invasion the pub- lic safety may require it.'" Sect. 125. Extent of tlie privilege. — The power to issue the writ of Tiaheas corpus which was at first granted in but a limited way to the national judiciary, but was extended by sub- sequent acts of Congress,' is now defined in sections 751, 752 and 753 of the Revised Statutes. They provide as follows : 751. "The Supreme Court" and the Circuit and the District Courts shall have power to issue writs of habeas corpus. 752. " The several justices and judges of the said courts, within their respective jurisdictions, shall have power to gran* writs of Jiabeas corpus for the purpose of an inquiry into the cause of restraint of liberty. 763. "The writ of Jiabeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is com- mitted for trial before some court thereof; or is in custody for an act done or omitted in pursuance of a ]aw of the United ' See act of Sept, 24, 1789, § 14 ; writs of Tiaheas corpus and certiorari by act of March 2, 1833, § 7; act of the courts and judges of the United Aug. 89, 1842: act of Feb. 5, 1867, States, examined, in re Stupp, 12 § 1. Blatchf., 501. " See the provisions of the Revised * For principles governing the exer- Statutes, iu regard to the issuing of cise of the appellate jurisdiction of the L268] Supreme Court, see ante, p. 178. HABEAS CORPUS. 269 States, or bf an order, process, or decree of a court or judge thereof ; or is in custody in violation of the constitution, or of a law or treaty of the United States ; or being a subject or citi- zen of a foreign state, and domiciled therein, is in custody for an act done or omitted under any»alleged right, title, authority, privilege, protection, or exemption claimed under the com- mission, or order or sanction of any foreign state, or under color thereof, the validity and, effect ^'hereof depend upon the law of nations ; or unless it is necessary to bring the prisoner into court to testify." The statement of the power in this form seems to set at rest some embarrassing questions of construction attending the former acts.' ' It has been held that the authority given to the judges of the United States courts, by section 14 of the judiciary Act of Sept. 34, 1789 (1 Stat, at L., 81), to grant writs of habeas corpus, extends to cases where a pris- oner is in custody under a valid con- viction and sentence, but claims, release upon the ground of a pardon. Great- house's Case, 3 Ali. U. S., 382. But the judge of the circuit court has no jurisdiction to review on habeas corpus the judgment of the circuit court, wliereby the petitioner has been convicted and sentenced under a stat- ute which he claims to have been repealed before such sentence was passed. No writ of error lies to the judge, and he has no power to revise or reverse the judgment. Where the party thus convicted and sentenced, has been unconditionally pardoned, and has been notified of such pardon, and is in no manner restrained of his liberty, he is not entitled to a writ of habeas corpus, even though it may not appear that he has accepted the par- don. Be Callicot, 8 Blotch/., 89. Where a prisoner shows that he is held under a judgment of a federal court, made without authority of law, the Supreme Court will, by writs of habeas corpus and certiorari, examine the record sufficiently to ascertain that fact, and if it is found true, will dis- charge the prisoner. Bs^p. Lange, 18 Wall, 163. The Circuit Court has power dn a writ of habeas corpus, in conjunction with a writ of certiorari, to revise the action of a commissioner of the court committing a fugitive from justice for surrender under an extradition treaty between the United States and a for- eign country, and it will look into the evidence on which the judgment of the commissioner rested, and will pass upon its weight, as well as upon its competency. Be Heinrieh, 5 Blatohf., 414. Under section 7, of the act of Con- gress of March 3, 1833, which author- ized any judge of the United States to issue the writ of habeas corpus where an officer of the United States is im- prisoned "for any act done or omitted to be done, in pursuance of a law of the United States," — the writ of habeas corpus was held the proper remedy where a marshal is imprisoned by the sentence of a State judge, as for con- tempt in not producing the bodies of certain persons named in a writ of habeas corpus, issued by such judge. In ordering his discharge upon a habeas corpus, a judge of the United States does not assume a jurisdiction to re- view or reverse the sentence or judg- ment of the State judge, but merely exercises a power expressly conferred by an act of Congress. Exp. Robin- son, 1 Bond, 39. A United States judge may inquire into the validity of the enlistment of a person into the military service of the United States, on a writ of habeas corpus. Exp. Schmied, 1 Dill., 587. This power is not abrogated, as to 270 SUBJECTS OF JURISDICTION. [481] Sect. 126. Limits to the use of the writ. — But it may- be well to retain in recollection a few principles by whicli, in practical administration, the use of the writ has in past years been limited ; some deduced from restrictions recognized by the common law before the power was conferred on the courts by the act of 1789, and therefore to be accepted as a part of the law governing and controlling that power, as it has been confided to them ;' and others founded upon the peculiar division of powers between the national and State governments, the respect due in the courts of the general government to the laws and process of the States, and the comity which its tribunals exercise towards the State courts. Prominent among these restrictions is the rule that although the writ is a writ of right, it is not granted as a matter of course, but upon cause shown ; and if upon the statements of the application for the writ, the ground [482] relied on is seen to be undoubtedly insufficient, the application may be denied in the first instance. The usual course of proceeding is for the court on the application of the prisoner for a writ of habeas corpus, to issue the writ, and on its return to hear and dispose of the case ; but where the cause of imprisonment is fully shown by the petition, the court may, without issuing the Avrit, con- sider and determine whether, upon the facts presented in the petition, the prisoner, if brought before the court, would be discharged." * minors under 18, by the act of Feb. land, as it stood at the time of the 24, 1864, 13 Stat, at L., § 10, and ant adoption of the Constitution, subject of July 4, 1864, § 5, /S., 380, confiding to such alterations as Congress may power to discharge them to the secre- see fit to prescribe; and not by the tary of war. lie McDonald, 1 Loio., State statutes. Map. Kaiug, Z Blatehf., 100 ; though those enactments do de- 1. prive State courts and judges of all " Exp. Milligan, 4 Wall., 3. Thus jurisdiction to make such discharges, in the case in which an application Me Neill, 8 Blatchf., 156. was made on behalf of Samuel A. » ' A writ of habeas corpus cum causa, Mudd and others, imprisoned upon in aid of proceedings for the removal the sentence of a military commission, of causes from a State court to a cir- for complicity in the assassination of cuit court, was authorized by the act President Lincoln, it appeared by the of February 5, 1867. See, as to this application that the points relied upon proceediug, Abranches o. Schell, 4 were, first, that the military commis- Blatchf., 356. sion in question had no jurisdiction to The proceedings on a writ of try and sentence the accused ; and, Tmbeas corpus in the Federal courts are second, that their ofiEense was pardoned governed by the common law of Eng- by the operation of the general pro- HABEAS CORPUS. 271 Another restriction which is recognized by the Supreme Court (being, however, supported by, and fully illustrated in the decisions of England and of the several States upon the subject), in cases where the writ is issued by that court as an act of appellate jurisdiction, is, that the action of the court is restraini d by the limits which attach to the nature of appel- late pow er. Where the cause shown for the restraint of the prisoner is a commitment by a judicial tribunal, the court inquires not whether the commitment ought to have been made, but whether it is a legal commitment. The proceeding is in the nature of a writ of error, to examine the legality of the commitment. By means of it the body of the prisoner, with the cause of confinement, is brought before the court. The court can, undoubtedly, inquire into the legal sufiiciency of that cause. But if it be the judgment of [483J a court of competent jurisdiction, that, in itself, is suffi- cient cause.' Upon similar principles, where a petition for a habeas cor- pus stated that the petitioner was confined by virtue of a judgment of the Circuit Court of the United States of the clamation of July 4, 1868, Judge also, Beo. Stat., § 755. BoTNTON, of the District Court of Compare on the merits, Matter of Florida, remarked that where the pe- Egan; 5 Blatchf., 319. tition states the facts fully, and the ' Exp. Watkins, 3 Pet., 193. See, return can throw no new light on the also, Matter of Metzger, 5 How., 176; matter, or where the petition contains Johnson v. Dnited States, 8 McLean, insufficient allegations on which to 89 ; TiTelson ». Cutter, iia!,, 336; 1 West. base a demand of discharge, the pro- Law J., 357; United States v. Johns, vision of the Constitution, relating to i Dull., 412; Exp. Smith, S McLean, this subject, is as fully answered by a 121; 6 Law JElep., 57. determinationoftlie question, whether Upon the question whether upon there ought to be a discharge from haheas corpus issued by the Circuit imprisonment, in the first instance, on Court, to bring up a prisoner held for the application, as by the granting of extradition, the Circuit Court may ex- the writ and its determination after- amine into the sufficiency of the evi- ward. And as, in the particular case, dence upon which the requisition was the facts were all before him, upon the made and the warrant granted ; or into application, and the return of the the propriety of the commissioner's officer who had charge of the prisoners decision upon the sufficiency of the would add nothing to the data on proofs, — see (in the affirmative) Exp. which a decision ought to be based. Smith, 3 McLean, 121; 6 Law Rep., he examined the questions presented 57; Maitter of Heinricb, 5 Blatchf., at once; and being of opinion that the 414; Matter of Martin, Id,, 303; and military commission not only had juris- (in the negative) Matter of Veremai- diction, but was the proper tribunal tre, 9 iV. T. Leg. Obs., 129; S Law Hep. for the purpose; and that the Presi- JT. S., 608; Matter of Kaine, 10 iV. T, dent's proclamation did not embrace Leg. Obs., 257; Matter of Heilbronn, the situation occupied by the petition- 13 Id., 65; Ecp. Van Aernam, 3 ers, — he denied the application. See, Blatchf., 160. 272 SUBJECTS OF yURISDICTION. District of Columbia, rendered in a criminal prosecution instituted against him in that court ; and that the indict- ments under which he was convicted and sentenced to impris- onment, charged no offense for which the prisoner was pun- ishable in that court, or of which that court could take cog- nizance, it was held that as the Supreme Court had no juris- diction in criminal cases to reverse or affirm a judgment ren- dered in the Circuit Coiirt in such a case, where the record is brought up directly by writ of error, it had no authority to examine into the legality of such judgment upon a writ of Jiabeas corpus. "^ And where a district judge, at his chambers, had decided that there was sufficient cause for a surrender of a person, claimed by a foreign government, and committed him to cus- tody to await the order of the President of the United States, it was held that as the Supreme Court can exercise no power, in an appellate form, over decisions made at chambers by a justice of the court, or by a judge of the .District Court, they cannot issue a habeas corpus to inquire into the legality of a commitment by such jucjlge. And it has been held that although the prohibition in the Constitution against the imposition of excessive fines is man- datory upon the courts of the United States exercising crimi- nal jurisdiction, yet the Supreme Court cannot revise such sentence, although the excess of the fine may be apparent upon the record ; and cannot therefore on a Jiaheas cor- [484] pus discharge a prisoner in custody for non-payment of such excessive fine." So, where an application was made (before the act of 1867) to the Supreme Court, for a writ of habeas corpus, to bring up the body of Dorr, who had been convicted of treason against the State of Rhode Island before the highest court of that State, and sentenced to the State prison for life, for the purpose of enabling him to sue out a writ of error, it was held that the Supreme Court had no power to grant the writ, No such employment of the writ was authorized by the com- mon law. The case was not one in which the Constitution has conferred upon the court original jurisdiction. And by the Judiciary Act, the power of a court of the United States, •- -Efep. Watkins,- 3 Pet., 193. = Exp. Watkins, 7 Pet., 568. HABEAS CORPUS. 273 or judge thereof, to issue the writ of habeas corpus to bring up a prisoner in custody under a sentence or execution of a State court, was limited to cases where he is to be used as a witness. It is immaterial whether the imprisonment be under civil or criminal process.' ' Exp. Dorr, 3 How., 103. The questions connected with the conflict of the national and State jur- isdictions are not deemed necessary to be discussed in this work, for the rea- fcon that they usually arise where the State tribunals have claimed to review, upon habeas corpus, a commitment by authority of the United States. We are only concerned with the use of the writ by the national judiciary. The several States' governments are distinct and independent of each other and of the general government, though the last may exercise certain powers within the same territorial limits as a State government. Should disputes arise between the national and a State government, in reference to their enactments or jurisdiction, the State government must give way, until the tribunals of the United States have settled the question. Un- der these principles no State judge has the right to issue a writ of habeas corpus, or to continue proceedings under such a writ, for the discharge of a persop held under authprity of and by an ofQcer of the general gov- ernment. If it do not appear, lipon application for such a writ, that the Vol. I. —18 person for whom application is made is so held, the State judge may in- quire, into the circumstances of the case, as to how the prisoner is held, and the marshal, in whose custody the party is, should give the required in- formation. Tarble's Case, 13 Wall., 397. And the rule was said to be settled that the habeas corpus act of March 2, 1833, gave relief to one in State cus- tody, not only when he is held under a law of the State which seeks ex- pressly to punish him for executing a law or process of the United States, but also when he is in such custody under a general law of the State which applies to all persons equally, where it .appears he is justified foi; the act done because it was done in pursuance of a law of the United States. Upon a habeas corpus issued un- der that act, whether the petitioner is held under State or Federal process was immaterial. If he was confined " for an act done in pursuance of a law of the United States or of a pro- cess of any judge or court thereof," he was entitled to a discharge. United States v. Jailer of Fayette County, 2 Abb. U. 8., 265. CHAPTER IX. PATENTS. The philosophy of t-he American law of patents is very similar to that of the law of copyright, as indicated in a pre- vious chapter. A mere idea Or conception is not, in law, the subject of property. But when the idea is reduced to practi- cal form and use, and, by the exercise of inventive talent and the expenditure of time and money, is developed into an actual and complete invention, capable of useful operation, this invention is the subject of property, and the rights of the inventor in it are entitled to protection so long as he retains them. If, however, he makes the thing invented, and the mode of constructing and operating it, known to the world, as, 'for example, by placing it upon public sale, these acts oper- ate, according to the general laws of property, and independent of any statutory protection, as an abandonment or dedication of his rights to the public. To relieve from this consequence, as well as to encourage the exercise of inventive talent, is the object of the patent laws. The principle of their operation is to confer upon the inventor, for a reasonable time, the exclu- sive right to make and sell his invention, unprejudiced by the results of the law relative to abandonment or dedication, as an equivalent for the benefit which the community will derive at the expiration of that time, from the accession of the new in- vention to the common stock of human knowledge. Thus a patent is not obnoxious to the objection that it creates a monopoly, in any sense in which the word monopoly is odious. For, while the immediate effect of the law is to bene- fit the inventor, its ultimate result is to promote the welfare of the community by the increased number, variety, [486] and value of the inventions which it begets. The [274] PA TENTS. 275 oommunity have, if such a law is properly conceived and administered, an equivalent for the temporary privilege which it confers. Sect. 127. Power of Congress. — M order to carry this policy^ into effect in a uniform and efficient manner through- out the whole nation, the Constitution confers upon Congress power "to promote the progress of science and the useful arts by securing for limited times, to authors and inventors, the exclusive right to their respective writings and dis- coveries." ' This power is held to be complete and plenary. 'Congress has general power, under the Constitution of the United States, to grant patents to inventors ; and it rests in the sound discretion of Congress to say when, and for what length of time and under what circumstances, * the patent for an invention shall be granted." They may exercise it by making special grants to inventors in special cases, as well as by gen- eral laws. They may extend and renew a patent right which has been previously granted, and has -expired ; for a grant of an exclusive privilege to an inventor for a limited time does not imply a binding and irrevocable contract that at the expi- ration of the period the invention shall become public prop- erty.' And it is not necessarily an objection to an act of Con- gress granting a patent, that it acts retrospectively, and gives a patent for an invention which was previously in public use.* They may act in favor of assignees, as well as of original inventors ; for a reservation in favor of assignees in an act extending a patent will not make the act unconstitutional, on the ground that Congress is only authorized to confer privi- leges on inventors. The power of Congress to reserve rights- and privileges to assignees is incidental to the general power conferred to promote the progress of the useful arts.' j In fact, the only restrictions upon the power of Con- 'gress, in this respect, which appear to have been recog- [487] ' Const, of U. S., Art. I., § vm. inson, 1 Oar. Law Bep., 209; Erana v. ' Blanchard v. Sprague, 3 Suihn., Eaton, Pet. C. Vt., 322, 337. 535; % Story 0. Ot., 164. ' McClurg «. Kingsland, 1 How., = Bloomer ». Stolley, 5 JKcieare, 158; 203; 17 Pet., 328; Blanshard ». 8 West. Law J.^ 158; Blanchard ®. Sprague, 3 Sumn., 535; Blanchard v. Haynes, 6 West. Law J., 83; Blanch- Sprague, 2 Story 0. Gt., 164. ard's Gun-stock Turning Factory v, ' Blanchard's Gun-stock Turning Warner, 1 Blatchf., 858; Evans «, Rob- Factory v. Warner, 1 Blatchf., 258. 276 SUByECTS OF JURISDICTION. nized, are these : — First. That they must not impair vested rights ; and thus they cannot deprive a proprietor of his right of property in an existing patent, nor authorize an ' inventor to recall rights which he has granted to others, or reinvest him with rights of property which he has before con- veyed for a valuable consideration.' Second. The power exercised by Congress in the enactment of the patent laws is domestic in its character ; and is necessarily confined within the limits of the United States. Those laws cannot operate beyond such limits ; nor can the right of the patentee extend beyond the limits within which the law by which the right is created is confined. The use of his invention outside the jurisdiction of the United States is no infringe- ment of his rights, and gives him no claim to compensa- tion.' Sect. 128. The patent laws. — It will thus be perceived that the system of patent laws in existence throughout the United States is wholly the creature of the legislation of Congress. They have legislated upon the subject from an early date. The earliest statute upon the subject was that of April 10, 1790.' This act was repealed by the act of February 21, 1793 ; * which latter act, as amended and extended by a series of acts passed in 1794,' 1800,° 1819,' and 1832,' formed the basis of our patent law down to 1836. In that year a general revision of the law of the subject was made, ' Bloomor n. McQuewan, 14 Bow., and, so equipped, came to one of our 539; McCIurg «. Kingsland, 1 Id., ports, it was held that the use of the 303; Vt Pet., 228. gaffs waa not, under such circanj^tan- " Brown d. Duchesne, 19 H-nw., 183, ces, within the application of our pat- 198; affirming 3 Onrt. C. Ct., 371; ent laws. Id. Morton v. New York Eye Infirmary, 5 But the jurisdiction extends to the Blatchf., 116; Waterbury Brass Co. «. decks of American vessels on the high Miller, 5 Fish. Pat. Oas., 48; Sissons seas, as much as it does to all the ter- 11. Gilbert, I J(i., 109; 9 Blatchf., 77. ritory of the country, and for many Thus the rights granted to a paten- purposes is even more exclusive, tee do not extend to a foreign vessel Gardiner «. Howe, 3 Oliff., 463. lawfully entering our ports; and the How far the principles of English use on such vessel of an improvement, statutes and adjudications upon patented in this country, is not an in- patents are influential in this country, fringement of the rights of an Ameri- — ^see Pennock «. Dialogue, 2 Pet., 1; can patentee, provided it was placed affirming 4 Waah. G. Ot., 538. upon her in a foreign port, and author- ' 1 Stat, at L., 109. ized by the laws of the couitry to * 1 Stat, at L., 318. which she belongs. Hence, when a " 1 Stat, at L., 393. vessel was built and rigged in France, ' 3 Stat, at L., 37. and equipped with gaSs which had ' S Stat, at L., 481. been patented in the United States, ' iStat. at L., 559; Id., 577. PATENTS. 277 and a new and comprehensive act was passed, — the act of July 4, 1836, by which former acts were repealed, [488] and a system was established destined to continue in force with some amendments and additions, till 1870. These amendatory or additional acts are, the act of March 3, 1837,' enabling patents to be issued to assignees of the original inventor ; and allowing a disclaimer of any excess in a specih- cation,° or a correction of the specification in cases of re-issue,' and allowing a patent to be sustained in part ;* — the act of March 3, 1839,' protecting patentees notwithstanding sales of the article made during a term not exceeding two years before the patent is issued ; — the acts of August 29, 1842,° and March 2, 1861,' allowing patents for designs ; and requiring the date of the patent to be stamped upon or affixed to each patented article offered for sale ; — the act of February 18, 1861,° author- izing the Supreme Court to review decisions of the Circuit Courts, in patent cases, without regard to the value in contro- versy;— the act of March 2, 1861, abolishing extensions.' The act of July 8, 1870" revised and consolidated anew all the laws regarding patents, and established a complete system on the subject ; but was, in turn, with some changes of minor importance, incorporated in chapter one of Title 60 of the Revised Statutes. That chapter embodies the now existing statute law of the subject. As it reproduces, for the most part, the substance, and to a good degree the language, of the act of 1836, and auxiliary statutes, a knowledge of the course of decisions under those laws is useful and instructive upon the leading topics involved. We refrain from any ex- tended repetition of the sections of the Eevision ; but give a brief summary of principles gathered from the decisions which will probably be applicable under it. Sect. 129. The issue of patents. — Patents are issued by, and all records and departmental business connected with them are in charge of the Commissioner of Patents at Washington. A patent is not invalid, however, because it is certified by Section 6. 5 Stat, at L., 193. ' 13 Stat, at L., 246. The last-men- {Section 7. 5 Stat, at X., , 193. tioned act abolished extensions, and Section 8. 5 Stat, at L., 193. fixed the term of future patents at Section 9. 5 Stat, at L., 194. seventeen years. Section 7. 4 Stat, at L., 354. ' Stat, at L., Stat, at L., 543. ' 13 Stat, at L., 349, § 16. " 11 Stat, at L., 278 SUHyHCTS OF JURISDICTION. a person as " acting" commissioner, instead of being certified by the commissioner himself. The courts will judicially take notice of the persons who preside over the patent-office, whether permanently or transiently ; the due appointment of one who signs as "acting commissioner," is, as between third persons, to be presumed.' The authority of the commissioner of patents to issue patents is not of the nature of jurisdiction, in its common law and technical acceptation. The doctrine appertaining to acts or judgments of inferior tribunals, that he who sets up such judgment must aver and prove that the tribunal had juris- diction in the matter, does not apply to his acts. And in ac- tions for infringement the courts do not inquire into the au- thority of the commissioner, or the regularity of his proceed- ings. The patentability of the invention may be in- [490] quired into. The regularity of the proceedings in pe- titioning for and obtaining a patent, and the correct- ness of the judgment of the officer in awarding it, cannot be questioned." To obtain a patent, the inventor is required to furnish a written description of his invention ; called a specification ; accompanied, when the case admits, by drawings or models. The ground upon which the patentee is required to disclose his invention, is, that the patent is regarded as a bargain between the inventor and the public. And as the patent law of the United States grants to the patentee a monopoly, and not only awards damages, but inflicts a penalty for a viola- tion of the exclusive privilege, it requires that the invention which is to be enjoyed by the public in return, shall be so described in the specifications, that one acquainted with the art of manufacture to which it relates, shall not only under- stand the invention, but be able by following the specifica- tions with the aid of the drawings, to construct the machine, or make the combination, which is the subject of the patent. K ' Wilson t. Kosseau, 4 Row., 646, WooAh. & M., 389; Smith B.PIympton, 663; York. & Maryland R. R. Co. ». 4 Wc.s«. Law J., 49. Winans, 17 Id., 30, 41; Woodworth «. " Wilder v. McCormick, 2 Blatchf., Hall, 1 Woodb. ifc Jf., 348; 6 Pa. Law 31. See Gear v. Grosvenor, 3 Off. J., 178; see Woodworth v. Hall, 1 Gaa. Pai., 380; Tarr «. Polsom, 5 /(«., PATENTS. 279 And this rule of law is founded upon the equitable principle that a monopoly or exclusive privilege should not be given to an individual without a just equivalent to the public. While the statute holds out encouragements to stimulate invention and improvement in the arts and manufactures, by securing to the inventor a remuneration for his outlay and a reward for his ingenuity, nevertheless the consideration for which the patent issues to him, is the benefit he confers on the community, by Ms discovery eventually becoming public property. . The patentee maybe regarded as a purchaser from the public, being bound to so communicate his secret by specifica.tions, drawings and models, that it shall be successfully available to the whole community at the [492] expiration of the patent. ' The requirement of the law, in general, is, thlat the patentee must describe the thing which he claims to have invented, with reasonable certainty, to the understanding of persons conversant with the art to which the invention belongs. It ought to distinguish the invention from things before known, and to enable any person skilled in the art or science to make and use the same." The description must be so explicit as to distinguish the invention from all others of the same kind, and so as to enable any person skilled in the art to make and use it ; and should be accommodated to the com- prehension of any practical mechanic, without taxing his genius or inventive powers.' For the contract of the public is not with him who has discovered, but with him who also makes his discovery usefully known. If he has discovered much and discloses little ; communicates to the world only one or more of the derivative and secondary truths of the principle he has discovered ; he patents no more than he has ' Wintermute v. Redington, 1 Fish., '' This is necessary to enable the 339; see Carr e. Rice, Id,, 198; Ran- commissioner to judge whether the som ®. Mayor of K. T., Id., 253; Page matter claimed is new or too broad — B. Ferry, id., 398; Tyler ». Boston, 7 and to enable the courts, when the Wall., 337; Carlton v. Bohee, 17 patent is afterwards contested, to Wall., 463. An additional reason for form a like judgment — and also to en- the requirement is said to be to guard able the public to understand what the the public against an unintentional patent is, and refrain from its use, un- infringement of the patent during its less licensed. Hogg ». Emerson, 6 continuance. Evans «. Eaton, 7 Wheat. Sow., 437, 484. 356, 438; affirming 3 Wash. 0. Ot., 'Gray v. James, Pet. 0. Ot., 894; 443; Parker v. Stiles, 5 McLean, 44; 7 Teese «. Phelps, 1 McAll, 48. West. Law J., 168. 280 SUBySCTS OF JURISDICTION. proclaimed. He will not be allowed afterward, when the extent of his right shall be the subject of controversy, to expand into a general expression what was before limited in a particular form, and argue that he had described the whole, by implication from the first. ' But the rule by which the sufficiency of the description or the specification is to be tested, and the effect of an insuffi- ciency or omission upon the validity of a patent, wUl be more fully considered when we come to speak of the various defenses in proceedings for infringement. The vvritten application and description, with appropriate models and drawings, and the requisite oath or affir- [493] mation being forwarded to the patent-office, receive an examination by experts attached to the office, with a view to determine whether the invention is patentable. With- out describing all the stages through which the application may pass in the course of business at the patent-office, it is sufficient to say that in case the ultimate decision of the office is in favor of the petitioner," letters patent are granted to, him securing the exclusive benefit of the invention for the term of seventeen years. If, during that term, another per- son, without the consent of the patentee, engages in making or selling the patented article in infringement of the right secured by the patent, the patentee, or his successors in ownership, may maintain an action at law for damages, or may file a bill in equity to restrain the further sale of the article, and to compel him to account for and pay over to the proprietor of the patent the profits he has already realized. Either of these actions may bring up for adjudication the questions whether the invention itself is patentable, — that is, whether it is an act of invention and is new and useful in the legal sense ; whether it is adequately described in the specifi- cation ; whether the plaintiff, either as original patentee, or by assignment or otherwise, is the proprietor of the right, and whether the thing made and sold by the defendant is so nearly like that patented as to amount to an infringement of ' Detmold «. Reeves, 4 Am. Lavs J. upon the steps prescribed for applying N. ^.,189. for and issuing patents; what inven- ' For any decisions of the courts tions are patentable, &c., see AbboWi Nat. Dig., title Patents. PATENTS. 281 the exclusive right. All these questions must be answered in the affirmative, in order to entitle the plaintiff to recover ; for if the defendant is able to show, either that the thing claimed by the plaintiff was not entitled to be patented, or that it is not described in the specification so as to enable a person skilled in the art to make and use it, or that the plaintiff is not the proprietor of the patent-right, or that the thing that the defendant is manufacturing does not involve the use of the plaintiff's invention, being either something known and in use before the patent sued upon was granted, or something which the defendant or others have newly or in- dependently invented, — ^if the defendant shows either of these things, he is entitled to prevail in the suit. Sect. 130. Re-issue of patents.— It of course not un- [494] frequently happens that a patentee, in his original ap- plication, commits some error in the description of his inven- tion. The law provides an opportunity of amending errors of this description, by the means either of surrender, or re- issue, or disclaimer. The privilege may be exercised for the purpose of curing a defect either in the specification, or the description, or in the claim ; but the error sought to be cpr- rected must be one of these.' A patent cannot be surrendered and re-issued to cure an error in the oath of citizenship." But when the description or specification is defective or insuf- ficient, or the claim is too extended, an amendment of the patent by surrender and re-issue may give it validity, and ' Childs ». Adams, 1 Fish. Pat. Cos., a bill for infringement. The defect 189. See the general and settled cannot be cured by surrender and re- ■ rules governing re-issues of {)atents issue, for the commissioner has power and their effect, explained, in Carew to re-issue a patent to cure defects in «. Boston Elastic Fabric Co., 5 JPish. the specification; but not to cure false Pat. Gas., 90; 1 Off. Gas. Pat., 91. statements in the application. The And see thepracticeof surrendering fact thitthe false statement was made valid patents, and of granting re- in ignorance of the law constituting issues thei'eon in cases where the orig- citizenship, or without an intent to inal patent was neither inoperative defraud the government, will not sus- nor valid, and where the specification tain the patent. lb. was neither defective nor insufiicient, But it has been held that as be- cohdemned, in Burr «. Duryee, 1 tween the holder of the patent and the Wall., 531. infringer, the omission to take the " Mini «. Adams, 3 Wall. Jr. O. Gt., oath required from an applicant for a 20. A patent issued to an alien, upon patent does not impair the validity of his false statement under oath that he the patent, if actually granted, is a citizen, is absolutely void; and Crompton ». Belknap Mills, 3 FM. the defect is available as a defense to Pat. Gas., 586. 283 SUByi:CTS OF JURISDICTION. protect the rights of the patentee against subsequent infringe- ments. ' This defect may consist in either a mistake of law as to what is required to be stated therein in respect to the claim of the inventor, or a mistake of fact, in omitting things which are indispensable to the completeness and exactness of the description of the invention, or of the mode of constructing, or making, or using, the same." It is in cases where a patent is inoperative or invalid, by reason of a defective or insuffi- cient description, specification or claim, and not where the device is not described or specified at all, that permission is given to re-issue the patent. Devices, not described or speci- fied, may, if they are the invention of the patentee, be the subject of a patent, subject to all other rules governing ' the inventor's right ; but it is not the office of a re-issue to embrace them.' It will be observed that the right to surrender a patent for re-issue is not confined to the person of the original patentee. It is given : 1. To the patentee, if he is alive, and has made no assignment of the original patent ; 3. To the executors or administrators of the patentee, after his decease, when there has been no such assignment ; 3. To the assignee when there has been an assignment of the whole or any undivided part of the original patent.* Where, however, there has been an assignment of an undivided part of the whole original patent, in such a case, the assignee of such a part, and the patentee, become joint owners of the patent, and should join in the sur- render ; if they do not, it will be invalid, unless the part owner not joining, ratifies it. And there is nothing fti the act restricting such right, because of special or limited grants or licenses previously made ; amendments to a patent, made on a reissue thereof, will inure to the benefit of the assignees and grantees under the patent as it stood before such re-issue. Such grantees may, however, if they prefer, rest their claims upon the specification as it stood when they purchased their right.' ' Battin «. Taggart, 17 How., 74, A re-issue may be granted to an as- 88. signee of an assignee, of a patent, and ' See Allen v. Blunt, 3 Story 0. Ot., may be granted without the consent 743 ; 8 Law Sep., 165. or knowledge of tlie patentee. Swift » Sarven v. Hall, 9 Blatehf., 524. v. Whisen, 2 Bond. 115. < Bev. Stat., § 4yl6. ' Smith ». Plympton, 4 West. Law J., 49. PATENTS. 283 Thus it will be seen that an action for the infringe- ment Ox a patent may arise either upon a patent as orig- [496] inally issued, or upon a new patent re-issued after the surrender of ' the original. Where a re-issued patent is the foundation of a suit, the questions as to the patentability of the invention, the suificiency of the description, the title of the plaintiff to the patent, and the fact of infringement, may be presented, the same as in a suit upon an original patent. And, in addition, the re-issue may be contested ; though only to a certain extent. For it is held that upon an application being made for a re-issue, it is the duty of the commissioner of patents to decide . whether the invention claimed in the original patent and that claimed in the amended one are sub- stantially the same. He is to inquire and ascertain whether the specification is definite or insufiicient in point of law or fact, and whether the inventor has claimed more than he has invented, and, in each case, whether the error has arisen from inadvertency, accident, or mistake, or with a deceptive or fraudulent intention.' Now the decision of the commissioner, granting a re-issue, is presumptive evidence that the claim for a re-issue was within the statute. The only inquiry allowable in the courts, with respect to the validity of the decision, is as to the fair- ness of the proceedings. The cases lean strongly to the doc- trine that if the re-issue does not upon its face exceed the power of the commissioner, and is not impeachable for fraud, it is conclusive.' ' Allen V. Blunt, 3 8tore, 4 Fish. Pat. Oaa., 163. ' Philadelphia & Trenton R. R. Co. -c. Stimpaon, 14 Pet., 448, 458. " Alien 1). Blunt, 2 Woodb. & M., 131, 139. . ^ Carhart v. Austin, 3 Fiah., 543 ; Sickles V. Evans, Id., 417.' * Woodworth ». Edwards, 8 Woodb. & M., 130. * Woodworth v. Hall, 1 Woodb. & M., 348; 6 Pa. Law J., 178 ; Stanley V. Whipple, 3 McLean, 35; Smith v. Pearce, Id., 176 ; Bloomer v. StoUey, 5 Id., 158; -8 West Law J., 168. The same view is taken in respect to re- issues, under the act of 1793. Grant V. Raymond, 6 Pet., 318. • Shaw 1). Cooper, 7 Pet., 393, 315 ; Mofflt V. Garr, 1 Black, 373. Tliat when a re-issue is adjudged invalid, the surrender which preceded it will also be invalidated ; and the original patent will be treated as remaining in force, — see Woodworth V. Hall, 1 Woodb. & M., 348; &Pa. Law J., 178; Woodworth ». Hall, IWoodb. & M., 389; Woodworth «.' Edwards, 3 Id., 130. That additional improvements are no longer allowed to be incorporated into the original patent, but an independent patent must be applied for, — see Act of March 3, 1861, § 9, 13 Stat, at L., 347; O'Reilly ». Morse, 15 How., 63 ; Batting. Taggart, 17 Id., 74; Carver V. Braintree Manufg. Co., 3 Story G. at., 433. Where a patentee invented an appa- ratus for breaking coal, and combined it with an apparatus for screening coal which he did not invent, and took a patent for the combination only, and afterwards took a patent for the breaking apparatus, and then sur- PA TENTS. 285 however, extinguishes the original patent — cancels it— and no right can afterwards be asserted upon it. Suits pending for an infringement of a patent fall with its surrender, because the foundation upon which they were commenced no longer exists. Sect. 131. Disclaimer. — The amendment of a patent by re- issue is allowed, as has been seen, both where the description is defective, and where the claim is too broad. For the first class of defects, no other mode of amendment is allowed ; but for defects of the second class,, — claims covering more than the inventor is entitled to patent, — a simpler remedy is allowed. By this mode, the patentee continues to hold his original patent ; but he files a certificate disclaiming that por- tion to which he finds he is unable to maintain a right. This remedy is now regulated by section 4917 of the Revision. This enactment is held to be of a remedial character. It is intended for the protection of the patentee as well as the pub- lic, and should not receive a construction that would restrict its operation within narrower limits than the words of the law fairly import. ' Under its provisions, if inventions, not new or original with the patentee, are included in the specifi- cation by mistake, accident, or inadvertence, or without will- ful default or intent to defraud or misleaid the public, the patent is good and valid for so much of the invention or dis- covery as is truly and honaflde the invention of the patentee. Where the thing claimed without right is apart of a machine, if it is not an essential part, and was not introduced into the patent through the willful default of the patentee, or with intent to defraud or mislead the public, the want of a dis- claimer in regard to it affords no ground for invalidating the patent. But if no disclaimer be entered in the patent-office before suit is brought, the plaintiff cannot recover costs agains't the defendant, although infringement of the valid claim be proved.' And in order to be effectual, the disclaimer must rendered both patents and took one for breaking apparatus. Baggin ®. Tag- the breaking apparatus alone, it was gert, 17 Hovi., 74. held that his describing and not claim- ' O'Reilly i'. Morse, 15 How., 63, 131. ing the breaking apparatus in his first "Hall ». Wiles, 3 Slatehf., 194; patents, and the surrender and can- Singer v. Walmsley, 1 Fish. Pat. Oas., celation of the second, did not deprive 558. him of his right to a patent for the 280 SVByECTS OF JURISDICTION. be filed in the patent-office before suit is brought. If [499] it is filed during the pendency of the suit, the plaintiff will not be entitled to recover costs in such suit, even if he should establish at the trial that a part of the invention not disclaimed has been infringed by the defendant/ But whether a disclaimer is filed before or after suit brought, the plaintiff will not be entitled to the benefit thereof, if he has unreasonably neglected and delayed to file it. Such neglect or delay is a good defense to the suit." Where, in a dis- claimer, the party states that he was the patentee, and noth- ing is said in respect to a transfer of any interest, the fair presumption is, that he still owns the whole ; and it was held a suflacient compliance with the statute of 1837, — requiring the party making a disclaimer to state the extent of his in- terest in the patent, — to say " that such disclaimer is to oper- ate to the extent of his interest therein." ° If, however, the patentee has assigned his patent in part, and a joint suit is brought in equity for a perpetual injunction, a disclaimer by the patentee alone, without the assignee's uniting in it, will not entitle the parties to the benefit of the act.* And a dis- claimer of part of an invention cannot affect a prior grantee under the patent, unless he accepts it ; he may refuse to be affected by it.' Sect. 132. What constitutes " Invention." — The patent laws are designed for the encouragement of "inventors." The primary ground upon which a claim to an exclusive right as patentee may be resisted, is, that the patentee was not, in point of fact, the first inventor of the thing which he has patented. It is true that no patent is allowed by law to issue without the oath of the patentee to this fact, and without an examination of the invention in the patent-office, and an official decision in favor of the originality of the claim. But the decision of the officer upon the points : that the applicant for a patent is the first inventor, that the thing invented • Reed ». Cutter.l Story 0. Ot., 590. 3 BUtcJif., 209; O'Reilly ». Morse, 15 ' Ih. See also Tuck v. Bramhill, 6 How., 62. Blatehf., 95; Z With. Pat. (7a«., 400. » Silsby v. Foote, 14 How., 218; As to what amounts to unreasonable affirming 1 Blatclif., 445. delay or neglect in filing a disclaimer, * Wyeth v. Stone, 1 Slory 0. Gt., —see Silsby v. Foote, 20 How,, 378; 273. modifying 2 Blatehf., 260; Seymour 'Smith v. Mercer, 5 Pa. Law J., V McCormick, 19 How., 96; affirming 529. PATENTS. 287 is useful, that it is sufficiently described in the specification, and other facts required to be established [500] before a patent may be issued, is not conclusive upon the courts or the public. The examination in the patent- office prevents the issuing of patents in many improper cases ; but it does not prevent or supersede a subsequent judicial .inquiry. The patent is presumptive evidence that it was lawfully granted ; that the thing patented possessed the re- quisite novelty and utility ; and that the applicant was the first inventor ; but the presumption may be rebutted by evi- dence, and the claim of the inventor thus overthrown. In order to make out a right to the benefit of the patent laws, the claimant must be, or must claim under, the original inventor of the improvement in question. In order that a person should be deemed entitled to the character of an in- ventor, he must himself have conceived the idea embodied in his improvement. This does not exclude all right to make use of the knowledge, or even the suggestions of other per- sons. Inquiries made, or information or advice received from men of science, in the course of an inventor's researches, will not impair his right to the character of an inventor. It makes no difference whether an inventor derives his informa- tion from books, or from conversation with men skilled in science. Although he is aided by the suggestions of others in arriving at the useful result, yet if, after all the sugges- tions, there was something left for him to devise and work out by his own skill and ingenuity, he is still to be regarded as the first and original discoverer. But if the suggestions and communications of others go to make up a complete and perfect machine, embodying all that is embraced in the patent subsequently issued to the party to whom the suggestions were made, the patent is invalid. So if a party suggest an idea as to an invention, which is indispensable to its opera- tion, and which in reality constitutes its whole value, and another adopts such suggestion and takes out a patent therefor, the patent is void, as not being the invention of the patentee.' ' O'Eeilly v. Morse, 15 H. Skates; Id., 602; from the model, and which is intro- Rich V. Lippincot, 2 Jd., 1 ; Ellithorpe duced into it by the workmen, without V. Robertson, Id., 83; Magic Ruffle the knowledge of the patentee, cannot Co. ■». Douglas, Id., 330; Union be appropriated by him as his inven- Manufg. Co. i). Lounsberry, Id., 889; tion. If such an improvement is White «. Allen, Id., 440; Waterman embodied by the assignees of the pat- V. Thompson, Id., 461; Hotchkiss v. entee in are-issue, they cannot reason Greenwood, 4 McLean, 456. upon it, against others who use it. ' Thus where the plaintiffs devised Berdan Fire Arms Manf. Co. «. Rem- designs for oil-cloths, which were car- ington, 3 Off.. Gas. Pat., 688. ried out by another person, it was A mere agreement to transfer an in- held that the plaintiffs, and not the Vention for the joint use of the inven- pattern-maker, were the inventors, tor, and of those who advance means Sparkman v. Higgins, \ Blatchf., 205; for working it, which was entered Peunock v. Dialogue, 4 Wash. 0. Ct., into more than two years before the 538; afBrmed, 2 Pet., 1; Watson «. patent was applied for, but was not Bladen, 4 Wash. 0. Ot., 580. consummated until that time, will not " Agawam Co. v. Jordan, 7 Wall,, affect the validity of the patent. Elm 583. City Co. V. Wooster, 4 Off. Gaz. Pat., 83. PATENTS. 291 A "process," eo nomine, is not the subject of a pa- tent under our laws, but it is included under the gene- [503] ralterm "useful arts." And an art may require one or more processes or machines in order to produce a certain result or manner. The term " machine" includes every me- chanical device or combination of mechanical powers and devices to perform some function and produce a certain effect or result. But where the result or effect is produced by chemical action, by the operation or application of some ele- ment or power of nature, or of one substance to another, such modes, methods, or operations, are called "processes." A new process is usually the result of discovery ; a machine, of claim was not one for a mere principle, and that the patent was good. Silsby e. Foote, 30 How., 378; affirming 2 Blatchf., 360. A patent for a design for a reel was held invalid under the act of March 2, imi {12, atat. at L., 248); it appear- ing that the reel itself, as an article of manufacture, was old and not the sub- ject of a patent; and that the shape applied to it by the patentee was that of a well-known mathematical figure, — a rhombus. Wooster ®. Crane, 5 Blatchf., 383. The discovery of a method of caus- ing steam to become self-packing by allowing it to act in grooves in the cylinders or other parts of the machin- ery, is an invention which may be the subject of a patent. And it does not detract from the novelty or patenta- bility of the invention, that similar grooves have been used in air ^nachin- ery for a like purpose. Poillon v. Schmidt, 6 jBtocA/., 299; ^ Fish. Pat. Gas., 476; 37 Eow. (N. Y.) Pr., 77. The proper mode of enameling the proper quality of paper to enable a turned down or folded collar to be made wholly of paper, without any danger of crumbling or breaking the enamel by the operation of folding, is a patentable invention; the collar made from such enameled paper being a new article of manufacture. Hoff- man V. Btiefel, 7 Blatchf., 58; 3 Fish. Pat. (7flss., 638. A patent, which claims the design of a billiard table constructed with beveled sides, was held void, where it was shown that such tables were not novel. And making a deeper bevel than that already existing will not render such an invalid patent valid. Collender v. Griffith, 3 Off. Q. 373; Parkhurst ». Kinsman, J^., 488; Keystone Bridge Co., 5 Id., 45fi ; Alien «. Hunter, 6 McLean, 303; Roberts ». Dickey, 4 JtZ., 533; Smith Goodyear v. Day, 3 Wall. Jr. G. Ct., v. O'Connor. 4 Off. Gaz. Pat., 633. 383; Teese v. Phelps, 1 McAll., 48; When, in a patent case, a person Foote 1}. Silsby, 1 Blatchf., 445; af- claims as an original inventor and the firmed 14 How., 318. defense is a prior invention, if the dc- " Reed v. Cutter, 1 Story O. Gt., fendant proves that the instrument 690; Reed ». Robinson, 4 Law Pep., which he alleges was invented by him 843. See, also, Bedford v Hunt, 1 was complete and capable of working, Mas., 303. that it was known to at least five per- ' Winans v. N. Y. & Harlem R. R., sons, and probably to many others, 31 Jour. Fr. Inst., Srd S., 333; Gaboon that it was put in use, tested, and 1). Ring, 1 Oliff., 593; Agawam Co. v. successful, he brings the case within Jordan, 7 Wnll, 583; Whitely' ». the severe tests required by law. Swayne, Id., 685. See Evans v. Weiss, Coffin v. Ogden, 18 WaU., 130. PATENTS. 393 Logetlier in any other material. In the first case, the inventor can patent nothing but his process, and not his composition of matter ; in the latter, both are new and original, and both patentable, not severally, but as one discovery or invention.' Inventions embodied in "machines" are by far the most important and most numerous. We quote the following ex- planation of their different kinds from the opinion of Mr. Justice Cliffokd, in the case of the Union Sugar Refinery «. Matthiessen." He observes that inventions pertaining to ma- chines, may be divided into four classes : '■'■First. Where the invention embraces the entire ma- chine, as a car for a railway, or a sewing machine. Such inventions are seldom made, but when made and duly pa- tented, any person is an infringer who, without license, makes or uses any portion of the machine. Under such a patent the patentee holds the exclusive right to malte and use, and vend to others to be used, the entire machine ; and if another, without license, makes, uses, or vends, any portion of it, he invades the right of the patentee. '■'^ Second. The second class of inventions referred to are those which embrace one or more elements of a machine, but not the entire machine, as the coulter of a plow, or the divider of a reaping machine. In patents of that class any person may make, use, or vend all other parts of the machine, and he^mUy employ a coulter or divider in the machines men- tioned, provided it be substantially different from that em- braced in the patent. " Third. The third class of machines to be mentioned are those which embrace both a new element and. a new combina- tion of elements previously used and well known. The pro- perty of the patentee in such a case consists in the new ele- ment and in the new combination. No one can lawfully make, use, or vend a machine containing such new element or such new combination. They may make, use, or vend the machine without thepatented improvements, if it is capable of such use, but they cannot use either of those improve- ments without making themselves liable as infringers. '■'■ Fourth. The fourth class of machines to be mentioned ' Goodyear ». The Railroad, 3 Wall. Jr. G. Gt., 356. " Fish. Pat. Gas., 600' 294 SUByECTS OF JURISDICTION. are those where all the elements of the machine are old, [505] and where the invention consists in a new combination of those elements, whereby a new and useful result is obtained. Most of the modern inventions are of this latter class, and many of them are of great utility and value. The rule is, that the property of an inventor, if duly secured by letters patent, is in all cases exactly commensurate with his invention. Such an invention, however, is but an improve- ment on an old machine, and consequently the patentee can not treat another as an infringer who has also improved the original machine by the use of a substantially different com- bination, although the machine may produce the same result. But every inventor is entitled to the full benefit of his inven- tion as described and secured in his patent, and no one charged with infringing the same can successfully defend himself against the charge, merely because the machine he makes, uses, or vends, differs from that of the plain- tiff in form or in any respect which does not render the machine so made, used, or vended, substantially different from the patented machine. Inventions of the fourth class are just as meritorious as those of any other class, and the property of the inventors is entitled to the same protection." The rule that a patent cannot be sustained for an "effect, " has a recent and instructive illustration in the case of Morton V. The New lorK £ye Intirmary," involving the patentability of the anaesthetic effect of sulphuric ether. A patent had been granted to Messrs. Jackson and Morton for this remark- able and important improvement in surgery. Their specifi- cation alleged that they were the first discoverers of the^iacfc that the inhalation of sulphuric ether and similar vapors would produce insensibility to pain. They described exam- ples of methods by which either of the vapors of ether to be employed might be conveyed to the lungs ; and, disclaiming the employment of narcotics by means of the stomach, claimed, as their invention, the employment of ether, or the vapor thereof, by inhalation, to effect insensibility to pain, or nervous quiet, in the subject of a surgical operation. An action for the infringement of this patent was defended upon the ground that the improvement was not patentable, ' 5 Blatchf., 116- 'i, Am. Law Reg. N. S., 672; 3 Fish. Pat. Oas., S30. And see 8 Op. Att.-Gen., 269. PATENTS. 299 chanic to construct the improvement ; wliicli, itself, must be in all material respects like that covered by or described in the plaintiff's patent.' And it must be a description con- tained in a printed book. An unprinted book is not a " public work" within the meaning of the statute." The principal rule applies in the -jase of a description pub- lished abroad. If the thing invented or discovered has been described in any foreign publication before the invention of the patentee, it will be fatal to his right. This goes upon the presumption, that if such foreign publication has been made, the patentee may have acquired a knowledge of it. And this pre sumption is not rebutted by proving, so far as a negative can be proved, that the inventor had no knowledge of it." So, if the invention has been patented abroad ; but in order to defeat an American patent on this ground, the issuing of the foreign patent must have been completed before the inven- tion here, and not merely before the application. And an in- vention is not deemed "patented in any foreign country," within the meaning of our patent acts, until it is made patent and known to the world by enrollment of the specification.' But the law does not go beyond these limits, in allowing a claim to novelty to be disproved by the fact of usage abroad. An original inventor is entitled to receive a patent for his in- vention, even though, by reason of such invention having been known i"- ^ foreign country, he is not the first inventor, pro- vided he believed himself to be the first inventor, and such foreign invention had not been patented, or described in any printed publication.' Mere use^of the invention in a foi'eign country, un- [512] ' Parker v. Stiles, 5 McLean, 44, 61 ; that described in F. and G.'s speciflca- 7 West. Law J., 168 ; Hays v. Sulsor,! tion, in May, 1845, but liis application Fish., 532; Judson ». Cope, Id., 615. for a patent was subsequent to June, " Keene v. Wheatley, 9 Am. Law 1845. It was held that F. and G.'s Beg., 33; 4l Phil., 157. invention was not patmted \iat\l a.it%r "Allen v. Hunter, 6 McLean, 303, H.'s invention, and that H. was en- 314. titled to a patent under the act of * Howe V. Morton, 13 Law Bep. If. 1836. 8., 70. In this case, letters patent ' O'Keilly v. Morse, 15 How., 63, were granted in England to F. and G. 110; Hays v. Sulsor, 1 Msh., 533; for improvements in sewing machines, Judson v. Cope, Id., 615; Bartholo- in December, 1844, but the specifica- mew ». Sawyer, 4= Blatehf., 347; Boe- tion was not enrolled until June, 1845. mer v. Simm, 5 Off. Oaz. Pat., 555; H. completed an invention for a simi- Judson v. Cope, 1 Bond, 327. lar improvement or arrangement as 300 SUBjfECTS OF JURISDICTION. accompanied by a patent or a published description, does not, as does a use in this country, avoid the patent. The element of novelty is determined by considerations somewhat peculiar, in the case of patents for vsrhat are called "combinations." For a patent may be sustained for a ma- chine embodying a novel combination of several parts, not- withstanding that each of the parts has been used in some machine formerly known. It is no objection to a patent for such a combination that some, or even all of the parts, have been known and used before. If the combination of them is new, and produces what is a substantially new and useful re- sult, the combination is patentable.' But a combination, to be patentable, must be substantially new, not a copy ; the parts may have been used before ; it is the bringing of them together that constitutes the invention." The combination must differ materially and substantially from former combinations. The invention is not "new," if all the parts of the combination have been applied to a different ob- ject before, and they are now only applied to a new object.' The claim can only be sustained by establishing novelty — not as to the parts, but as to the combination merely. To show that a new result is produced, will not support the patent.' And if the same combination existed before, up to a certain point, and the invention consists in adding some new machin- ery, in some improved mode of operation, or some new combi- nation, the patent must be limited to the improvement." To make a valid claim for a combination, it is not necessary, however, that the several elementary parts of the combination should act simultaneously. If such parts are so arranged that the successive action of each contributes to produce one result — which result is the product of the simultaneous or suc- cessive action of all such partS; — a valid claim for thus combin- ing those elementary parts may be made. And it is decisive, 'Barrett ». Hall, 1 Mas., 447; logue, 4 Wask. 0. Ot., 538; affirmed, Moodyi). Fiske, 2 Id., 112; Earle v. % Pet., 1. Sawyer, 4 /i. , 1; Pitts v. Whitman, 3 ^ Devoll v. Brown, 3 West. Law J., Btory O.- Ot., 609; Hovey «. Henry, 151. 3 West. Law J., 153; Hovey v. Stev- ' Hovey «. Henry, 3 West. Law J., ens, 1 Woodh. & M., 290; Blake v. 153; Bray «. Hartshorn, 1 Gliff., 538. Sperry, 2 JT. T. Leg. Obs., 351; Buck * Le Roy ®. Tatham, 14 Bow., 156, V. Hermance, 1 BMchf., 398; Hall v. 188. Wiles, 3 Id., 194; Pennock «. Dia- ^ Whitney \ Emmet, 5aMw., 303. PATENTS. 297 This, we say, is the purpose of the law ; to ascertain and reward that one of several independent inventors who has first reduced the improvement to a practical and useful real- ity. Hence the law allows one prosecuted for an infringe- ment to contest the patentee's claim to priority of invention, or to show an abandonment of it, by him, to the public. Under such provisions it has been held not to be [509] enough, in order to defeat a patentee's right, to show that a machine like that patented' had been made, but it must also be shown that it was used before the plaintiff's invention. This is the test of what is required to defeat the title of the patentee to an improved machine. A prior con- struction and use of the thing patented in one instance only, which has been finally forgotten, or abandoned, and never made public, so that, at the time of the invention by the patentee, the invention did not exist, will not render a patent invalid. The knowledge and use, referred to in the law means knowledge and use existing in a manner accessible to the public' Proof of a previous structure, bearing some resem- blance in some respects to the plaintiff's improvements, and which might have been suggestive of ideas, or have led to experiments resulting in the discovery and completion of his improvement, will not invalidate his patent. So, proof that a person constructed and ^sed his machine before another took out a patent for a similar machine, is not a Justification, if in fact the former was copied from the machine subse- quently patented." In the application of the provision for cases in which the patentee has unfairly obtained the patent," it is held that an inventor who has first actually perfected his invention, will not be deemed to have surreptitiously or unjustly obtained a pat- ' Parker v. Hulme, 7 West. Law J., granted to B., January 9, 1855. A 417 ; Gayler ». Wilder, 10 Mow., 477. patent was subsequently granted to A. ' Parker v. Stiles, 5 McLean, 44, 63 ; In a suit by the assignees of B. against 7 West. Law J., 168; Hovey v. Stevens, the assignees of A., it was held that 1 Woodb. & M., 390. the omission to give notice to A. ' In Phelps ». Brown, 1 Fish. Pat. might be set up as one of the defenses Cas., 479, it appeared that A. filed a under section 15 of the act of July 4, caveat in the patent-ofBce, April 17, 1836, as proof that B. " had surrepti- 1854. B. made application for a tiously or unjastly obtained the patent patent for the same invention, Novem- for that which was, in fact, discovered ber, 1854. JSTo notice was given to A. by another," &c. A patentee should of this application, but a patent was not be prejudiced for the error or oversight of the patent-office. 298 SUBJECTS OF JURISDICTION. eul for that which was in fact first invented by another, unless the latter was, at the time, using reasonable diligeA.ee in adapting and perfecting the same. But he who invents first is entitled to the prior right, if he uses reasonable diligence in adopting the same, although the second inventor [510] has in fact first .perfected the same, and first reduced the same to practice in positive form.' Sect. 134. Novelty. — The question usually associated with the word "novelty," in the patent' laws, is very cognate to that of priority of invention, which has just been considered ; but is more general in its scope and bearing. To warrant the commissioner in issuing a patent in the first instance, he must be satisfied, upon examining the application, not only that the applicant is, as compared with any other individual claimant, the true and first inventor of the improvement, but also, and beyond this, that the thing claimed is new, as com- pared with the general extent of human knowledge and skill, in the science or art to which it appertains. And although a patent has been granted, yet this question is not foreclosed thereby, but is competent for any member of the community who may be sued for infringement, to sustain a defense by showing that the invention claimed was not, in fact, novel. For patent rights are granted to encourage advance in art and science, and the law does not permit them to be obtained or used as a means of gaining control over what is already a part of the common stock. Thus, it is declared to be a defense to an action for in- fringement, to show that the invention patented has been previously described in a public work. Such description is deemed to disprove novelty, and it therefore avoids the patent, whether it was known to the patentee or not." But the description must be one which was prior in point of time to the invention of the plaintiff.' And it must be a de- scription sufiiciently full and precise to enable a me- [511] ' Reed «. Cutter, 1 Story G. Ct., ' Bartholome\T v. Sawyer, 1 Fish. 590. See Webb B.Quintard, 9 Blatehf., Pat. Gas., 516; 41 Hunfs Mer. Mag. 353; 5 Fish. Pat. Gas., 376. (Nov., 1859), 575. " That this rule holds, if the ' Parker v. Stiles, 5 McLean, 44, 61 ; machines are the same in principle, 7 West. Law J., 168; Hays v. Sulsor, though they may differ in proportions 1 Fith,, 533; Judsou v. Cope, M., or form, — see Brooks v. Bickuell, 3 615. McLean, Z50; 1 West. Law J., 150. PA TENTS. 303 invented, and is essential to its value. Where, however, the form is a material part of the discovery, and is essential to its value, then a departure from the form may be a sub- stantial departure." And in determining whether an [515] improvement is the subject of a patent, the jury have a right to take into consideration, in connection with the ^change, the result which has been produced ; because the re- sult, if greatly more beneficial, reflects back, and tends to characterize, in some degree, the importance of the change." But if unaided by some such element, a mere change in the form of a machine, or in the proportions of its parts, or the mere substitution of one mechanical equivalent for another, or an alteration in unimportant parts, causing no substantial change in the principle of operation, does not constitute an invention such as can be the subject of a patent." Thus the mere enlargement of the organization of a machine, compared with a former one, does not afford any ground, in the sense of the patent law, for a patent.* Sect. 136. Sufficiency of the description. — Having explained the general principles upon which the patentability of an in- vention may be contested in an action for infringement, we proceed to the examination of another substantive ground of defense, viz. : defect in the description of the invention, given in. the patent. "We have already stated the general grounds and extent of the rules requiring a patentee to give a descrip- tion of his invention, and enabling him to amend a descrip- tion when he discovers its insufficiency before infringement. ' Many «. Jagger, 1 Blatchf., 372; American Pin Co. v. Oakville Co., 3 Odiorne». Winkley, 2 Qall., 51. Blatchf., 190; 3 Am. Law Beg., 136; ^ Hall B. Wiles, 2 Blatchf., 194. McCormick b. Seymour, 3 Blatchf., = O'Reilly ». Morse, 15 How., 62; 209; affirmed, 19 How., 96; Sangster Winans v. Denmead, Id., 330; Wood- e. Miller, 5 Blatchf., 243; Whitney v. cock ». Parker, 1 Qall., 438 ; Lowell v. Emmett, Baldw., 303 ; Davis v. Palmer, Lewis, 1 Mas., 182; Carver v. Braintree 2 Brock. Marsh., 298; Stanley i>. WMp- Manufg. Co., 2 Story 0. Ot., 433; pie, 2 McLean, 35; Smith v. Pearce, Bean «. Smallwood, 2 Id., 408; DevoU Id., 176; McCormick ». Manny, 6 Id., 0. Brown, 3 West. Lam J., 151; For- 539; 4= Am. Lato Reg., 277. bush». Cook, lOiflSM ifop., JT. S., 664; 'Phillips ». Page, 24 How., 164. Blanchard's Grun-stock Factory?). War- In Jacobs v. Baker, 7 Wall., 295, ner, l^^osteA/., 258; Buck ». Hermance, doubt was expressed whether an im Id., 398; Hall ®. Wiles, 2 Id., 194; provement in the mode of constructing McCormick v. Seymour, Id., 240; re- prisons could be the subject of a versed on other points, 16 How., 480; patent under the existing law. Tracy ». Torrey, 8 Blatchf., 275; 304 SUBJECTS OF JURISDICTION. Section 4920 of tlie Revision ' enables a defendant to prove : " that for the purpose of deceiving the public, the description and specification filed by the patentee in the Patent Office, was made to contain less than the whole truth relative to his invention or discovery, or more than is necessary to produce the desired effect." [516] In examining and construing the description and specification, the court is guided by the general rule, that they are to be construed in a liberal manner, so as to give them effect, and to secure the rights of the patentees." In construing a patent, the court looks through the whole patent and specification, in order to ascertain what is the thing claimed and patented in it. There is no artiftcial or universal rule of interpretation of such an instrument, be- yond that which common sense furnishes ; which is, to con- strue the instrument as a whole, and extract from the descrip- I Taken from Act of 1836, § 15 ; Act of July 8, 1870, § 61. "Grant ». Raymond, 6 P««., 218; Simpson v. Wilson, 4 Ho'm., 709 , Tur- rill «. Michigan, &c., R. R. Co., 1 'Wall., 491 ; Ames v. Howard, 1 Symn.., 483; Blanchard v. Sprague, 3 Id., 585; Ryan «. Goodwin, Id., 514; 3 Law Sep., 320; Blanchard ii. Sprague, 2 iStory 0. Gt., 164; Davoll ». Brown, 1 Woodb. & M., 53; Goodyear v. Rail- road, 3 Wall. Jr. a. Ct., 356; Davis ■V. Palmer, 2 Brock. Marsh., 398; Bloomer v. Stolley, 5 McLean, 158; 8 West. Law J., 158 ; Allen v. Hunter, 6 McLean, 303 ; Latta i>. Shawk, 1 Msh., 465; Imlay ». Norwich & Worcester R. R. Co., 4 Blatchf., 237, Patents are not regarded as restrict- tions upon the rights of the communi- ty, but as inducements granted to in- ventors, for the encouragement of the useful arts. Ames v. Howard, 1 Sumn., 483 ; Blanchard v. Sprague, 3 Id., 535. The following cases, decided under the former patent laws, are instructive upon the subject of reading extrinsic papers in connection with a patent. In an action for the violation of a patent, where the patent 'and specifi- cation are so ambiguous as to leave it uncertain whether the grant is for an improvement in the making a certain instrument, or in the mode of using it, the affidavit may be referred to, for the purpose of explanation. Thus, when the patent recited the applicant to be the inventor of an improvement in boring muskets by a twisted screw - auger, and the specification described the manner of making the auger, its form, and how to be used, and the affidavit confined the invention to the improvement in maMng augers for bor- ing musket barrels, the court held that the patent extended only to the auger, and not to the manner of using it. Pettibone o. Derringer, 4 Wash. C. Ct., 215. ♦ In another case it was held that although the construction of the p.itent must certainly depend on the words of the instrument, yet where the words are ambiguous there may be extrinsic circumstances which ought to have great influence in expounding them. The intention of the parties, if that in- tention can 1)6 collected irom sources which the principles of law permit us to explore, ate entitled to great con- sideration. Therefore, a special act may be referred to, as well as the pat- entee's petition, and such cor struotion should be given to the grant as will make it, with such documents forming a part of it, not contradictory with itself. Evans v. Eaton, 3 Wheat., 454, 606. PA TENTS. 801 thoTigli not the only evidence, that a new mode of ope- ration has been introduced, if either a new effect, or a [513] better effect, or as good an effect more economically at- tained, is produced by the change. ' Sect. 135. Utility. — The law requires, as a condition of granting a patent, that the improvement for which it is claimed shall be losoful, as well as new. It is only for a " new," and "useful" invention that the commissioner is authorized to grant a patent. Noxious or hurtful contrivances, things which contravene public policy' or injure the morals or impair the interests of society, are not within the protection of the patent laws ; nor ought mere trivialities to obtain any sub- stantial foothold by their aid. But, whatever may be the rule of decision in the patent-office when an application for a patent comes before the commissioner for allowance, the rule of adjudication followed in the courts when the validity of a-patent actually granted is drawn in question, gives no great encouragement to dispute the patent for want of utility. While the courts recognize the principle, that to warrant a patent the invention must be useful, or the patent will be void, yet it is held that any degree of utility is sufficient to support a patent. The word " useful," in the patent law, is used in opposition to frivolous or nqpious. It is not neces- sary that the thing invented should be the best possible of its kind.' By " useful" is meant such an invention as may be applied to some beneficial use in society, in contradistinc- tion to an invention which is injurious to the morals, the health, or the good order of society. It need not be of such general utility as to supersede all other inventions in practice to accomplish the same purpose. The, law does not look to the degree of utility. The requirement cf the statute as to utility is satisfied if the invention is capable of being used for the purpose for which it is designed, and that purpose is at all beneficial." The fact that a patent has been issued ' Torbush «. Cook, \Q Lam Bep. N. Ct., 9; Whitney v. 'Exaraeti, Baldw., S., 664. 303. ' Roberts v. Ward, 4 McLean, 565. ' Bedford «. Hunt, 1 Mas., 302; Ma- To the same effect, under the former uy v. Jagger, 1 Blatehf., 372; Wilbur law, were Lowell v. Lewis, 1 Mas., «. Beecher, 2 7d. 132; Evans «. Eaton, 182; Winans«. Schenectady & Troy Pet. C. Ct., 322. R. R. Co., -3 Blatehf., 379, 390; To what extent an invention must Kneass v. Schuykill Bank, 4 Wash. 0. be useful, to render it the subject of a 302 SUByECTS OF yURISDICTION. [514] implies that tlie utility of the invention was shown to the satisfaction of the commissioner, and the courts will sustain his conclusion and action, if the facts before them leave if practicable for them to do so. Moreover, for the de- fendant in an infringement suit to contest the plaintiff's pat- ent on the ground of want of utility, almost necessarily involves him in the position of claiming, at the risk of an ex- pensive litigation, the right to manufacture and sell a useless invention. The argument is difficult to be evaded, that, if the invention were really useless, the defendant would not find it profitable to infringe it. Want of utility, therefore, however, serious as an objection to granting a patent in the first instance, can seldom form an available ground for contesting it in the courts. The fact that a patent has been issued, and the infer- ence that the defendant has thought it profitable to imitate the plaintiff's invention, drawn from the fact that he does not rest his defense upon the dissimilarity of the two manxifac- tures, are usually sufficient to defeat it. The question of utility arises in a somewhat peculiar way in the case of patents for " improvements." For, one Who is the inventor of a real improvement in a previously known ma- chine, has the same right to patent the improvement as the inventor of the original machine had to patent that ; but, in such a case, the patentee of the improvement cannot use the combined machine without a license ; nor can the owner of the original machine use the improvement without a license.' But to. constitute an improvement upon a machine a patent- able invention, it must be, in itself, substantially new and useful ; " there must be difference in principle. A mere change of form will not do, unless form is a part of the thing patent, -will depend upon the particu- As to what constitutes " utility " in lar circumstances of each case. No an invention, within the requirement general rule can be given; but it must of the patent laws, — see, also, Adams in some small measure, at least, be ». Edwards, 1 Fisih., 1. 6; Many v. beneficial to the community. An in- Sizer, Jci., 17; Carr «. Rice, 7rf., 198; vention for merely folding thread or Wintermute «. Eedington, Id., 339; cotton in a more ornamental manner, Hays «. Sulsor, /<£., 533; Judson o. by which the article would sell more Moore, Id., 544 ; Pitts «. Wemple, 3 quickly, and at a higher price, but Id., 10; Wayne o. Holmes. Jci., 30. which made no change in the article, 'Gray v. James, Pet. O. Gt., 394; is not a useful invention within the Pitts ». Wemple, 6 McLean^ 558. patent laws, though beneficial to the ' McCormick ». Seymour, 3 £feifiA/., patentee. Langdon v. De Groot, 1 309; affirmed, 19 Horn., 66; Hall «. " ■ 303. Wiles, 3 Blatchf., 194. PATENTS. 305 tive words and the claim what the invention is which -is intended to be patented, and how far it is capable of exact ascertainment, and how far it is maintainable in point of law, supposing it clear from all ambiguity.' The [517] court inspects the whole description as one paper, which is assumed to be true in fact ; and if it is found to be in conformity with the recLuisitions of the law, so that the nature of the invention appears with reasonable certainty, either from the words used or by necessary implication, though the description may be somewhat obscure, or imper- fect, or defective, in form or mode of explanation, it will be adjudged sufficient.' The schedule or specification annexed to the letters patent is, under our laws and practice, to be regarded as a compo- nent part of the letters patent, and may be referred to, to explain or add to the title of the patent itself.' The courts do not look alone to the descriptive words contained in the letters patent, but construe those words in connection with the specification." The patent and the specification are re- garded as connected, and dependent on each other for sup- port. ° Sometimes the preamble, even, may be resorted to for ascertaining the object of the specification ; sometimes the summing up ; and sometimes the formal clause at the end oi the specification. Gfenerally, all of them are examined to- gether, unless the formal clause seems explicitly to exclude the rest." In construing the language of the specification, the words are to be taken together, and they are to be so construed as to give effect to the jueaning and intention of the persons using them. Words g,re not to be distorted, in order to effect what may be supposed to have been the intention of the one using them ; but they are to have a reasonable construction, ' .Carver v. Braintree Manufg. Co., 3 Although it is true that in the con- Story 0. Ct., 432, 446. struction of a claim, reference may be ' Whitney v. Emmett, Baldw., 303. had to the specification, to ascertain ' Hogg«. Emerson, 6 ZfoMJ., 437, 478. the true interpretation of the claim, ' Pitts ®. Whitman, 3 Story G. Ot., yet, where the claim is such as to 609. leave no room for construction, where ' Sullivan «. Redfield, 1 Paine, 441; it is clear and explicit, and especially Goodyear ».. Railroad, 3 WM. Jr. 0. where there is nothing in the specifl- Gi., 350. cation which shows that the patentee " Day.oll «. Brown, 1 }7oo(ib. & M., did not mean just what the plain lan- 53, 59. guage of the claim imports, the court Vol. L— 20 306 SUBJECTS OF JURISDICTION. as connected with the sentence in which used.' Although there be some ambiguity or uncertainty in a part of the spec- ification, yet if, taking the whole together, the court can perceive the exact nature and extent of the claim made by the inventor, it is bound to adopt that interpretation, and to give it full effect." If, indeed, the specification is wholly [518] ambiguous and uncertain, so loosely defined, and so inaccurately expressed, that the court cannot upon fair interpretation of the words, and without vague conjecture of intention, gather what it is, the patent is void for such defect. But if the court can clearly see, by' a reasonable use of the means of interpretation of the language used, taking the whole in connection, what is the nature and extent of the claim, then the plaintiff is entitled to the benefits of it, how- ever imperfectly and inartificially he may have expressed himself." And the true rule of construction has been said to be, to apply plain and ordinary principles, and not yield to subtleties and technicalities unsuited to the subject, and not in keeping with the liberal spirit of the age, and likely to prove ruinous to a class of the community so inconsiderate and unskilled in business as men of genius and inventors usually are.* In those portions of the spficificatiou which describe the mode of constructing the improvement, the general test is, as previously stated, that it must be sufficient to enable a person skilled in the art to construct the improvement from the de- scription giiven, and the accompanying drawings and models ; without other aid. And the particular improvement claimed must be clearly stated and distinguished ; both that the pub- lic may know what he claims as new, and that parties may know wliat they are to defend against. ° is not aided by, and has no need of Denmead, .15 flbw., 830; Kneass e. aid from, such specification. Rich s. Schuylkill Bank, 4 Wash. 0. Ct., 9. Close, 4 Fish. Pat. Gas., 379. It should be observed that a patent ' Allen ». Hunter, 6 McLean, 803. must be construed and passed u,pon ^ Ryan v. Goodwin, 8 Sumn., 514; according to the laws in force at the 3 Law Bep.,%'iO\ Parker v. Stiles, 5 time of the granting of it. The repeal McLean, 44, 56; 7 West. Law J., 168. of such acts cannot impair the right ''Ames ®. Howard, 1 Sumn., 483; of property existing in a patentee. Emersou v. Hogg, % Blatchf., 1. McClurg ». Kingsland, 1 How., 303; ' Hogg B. Emerson, 6 Sow., 4S7, 485. 17 Pet., 338; Hogg a. Emerson, 6 See also, DavoU o. Brown, 1 Woodb. How., 437, 479. & M., 53; "Woodworth «. Hall, Id., ° See Brooks ». Bicknell, Z McLean, 348; 6 Pa. Law J., 178; Winans ». 350; 1 Went. Law J., 150; Whitney PA TENTS. 307 For if the description is so uncertain and obscure as to what was meant, and what is in fact the novelty, that it can nob be determined whether tlie improvement consists in the combination of the whole, or of all the parts, or [519] only of some of them, and of which — or of an invention of some, and if so, of what — the uncertainty will be fatal, and the patentee will be under the necessity of making a new specification, setting forth his claim with greater certainty, accuracy, and clearness, and disclaiming all not new.' But the patentee is not confined fo technical language ; but he may make .use of that which is in popular use, and better understood by all. The fewer technical terms used the better, if the subject is intelligible without them.' And the terms used will be construed with reference to the v. Emmet, Baldw., 303; Barrett v. Hall, 1 Mas., 447; O'Beilly v. Morse, 15 How., 62; Parker «. Stiles, 5 Mc- Lean, 44; 7 West. Law J., 168. The test is quite distinctly stated in an early case; that where a patent is for an improvement, the specification must describe, in full, clear and exact terms, what the improvement is: 1st, to enable the public to enjoy the full benefit of the discovery when the monopoly is expired, by having it so described on record that it can be constructed; and 3nd, to put every citizen on his guard, that he may not through ignorance violate the law, by infrinscinar the rights of the patentee. Evans V. Hettich, 7 Wheat. 453. The question of the sufiiciency of the description and specification must be determined, like a question of con- struction, from what is written, aided by the drawings, and, if need be, by the. patent-ofBce model. Howes «. jNute, 4 Fish. Pat. Cas., 263. ■ The meaning of letters patent, like other grants or written instruments, must be ascertained by the language employed, as applied to the subject- matter. Neither the correspondence between the commissioner and the appellant, nor the proceedings in the pitont-office, are admissible to enlarge, diminish or vary the language of the claim. Goodyear Co. v, Gardner, 4 Fish. Pat. Cas., 234. Such a construction as will allow an inventor to couch his specification in such ambiguous terms that its claims may be expanded or contracted to suit the emergency, should not be allowed. Detmold v. Reeves, 5 Pa. Law J. Bep., 99. A patent covers only the devices which are claimed, although others are described by way of explaining them or illustrating the way in which they operate. Wheeler v. McCormick, 4 Off. Gaz. Pat., 693. But a claim that immediately fol- lows a description of an invention may be construed in connection with it ; and if its terms refer to the specifica- tion, it must be so construed. Roberts V. Dickev, 4 Brews., 360; 3 Fittsb., 353; 1 Off. Gaz. Pat., 4; 4 Fish. Pat. Cas., 533. Two different translations of a phrase in a French patent for a fire- arm, equivalent to "breech-loading," were urged upon the court, supported by the testimony of experts. The court adopted that which was more literal, which better accorded with the other parts of the instrument not involved in doubt, and was germane to the invention and more in harmony with the other language of the patent. White V. Allen, 2 Cliff., 234. ' Hovey v. Stevens, 3 Wooib. <& M., 17, 25. " Hovey v. Stevens, supra. 308 SUByECTS OF JURISDICTION. preceding state of the art with which the patent is immedi- ately connected. The inventor is not obliged to suggest all the possible modes by which the invention may be varied and yet the effect produced. To state the modes which he contemplates to be the best, and to add, that other mere formal variations from these modes he does not deem to be unprotected by his patent, is enoi^gh." And old and well-known machinery, with which a new contrivance is to be connected, need not be de- scribed in the specification of a patent, or delineated in the drawing, when no change in their forms or proportions enters into the new invention.' So, in describing an improvement, the structure in detail of the entire and improved machine need not be given. It is only necessary to describe the im- provement, by showing the parts of which it consists, [620] and the effects which it produces.* Thus, where a patent was taken for an improvement in the mould board of ploughs, it was held that a particular description of former mould boards was not necessary. A general reference, either in general terms which are not untrue, or a reference to a particular mould board commonly known, accompanied by such a description of the improvement as will enable a work- man to distinguish what is new, will be sufficient in such a case,' In respect to the specific statement of the inventor's claim, it is held that where the claim immediately follows the de- scription, it may be construed in connection with the explana- tions contained in the specification ; and be restricted accord- ' Tompkins «. G-age, 5 Blatchf., flcation was sufficiently definite with- 368. out specifying in feet and inches the ' Carver v. Braintree Manufg. Co., exact distance from the ends of the car 3 Story 0. Gt., 433, 440. body at which it would be best to ar- Where, in an improvement in the range the trucks, or the exact distance construction of cars for railroads, the between the' two axles. Winans ». most essential feature of which con- Schenectady & Troy R. R. Co., 2 sisted in the location of the two sets SlateJi/., 379. And see Burrall v. of trucks relatively to each other — as JeWett, ^ Paige^ 134; Kneass*. Schuyl- remotely from each other as can be kill Bank, 4 Wash, C. Ct., 9. conveniently done for the support of ^ Emerson v. Hogg, 2 Blatohf., 1. the carriage — and in the near proxi- ■* Brooks v. Bicknell, 3 McLean, 350 ; mity of the two axles of each truck to 1 West. Law J., 150. each other — as near as possible to each ° Davis v. Palmer, 3 Brock. Marsh., other, and prevent their contact with 898. each other, it was held that the speci- PA'TEN.TS. 309 ingly.^ If the specification, taken as a whole, leaves no rea- sonable doubt concerning the intention of the patentee to include in his claim a certain part of a combination, though there may be an error in describing it, it will be considered as included." And where an invention consists of an improve- ment on a machine, the specification should distinguish the new parts from the old ;.and the claim should exclude the old parts, and claim only the new, by which the old were adapted to the new use, producing the new, result." The models* and drawings' accompanying the application for a patent, and referred to in the specification, constitute a part thereof ; and they may be resorted to to aid the descrip- tion, and to distinguish the thing patented from other things known before. In regard to the proper tribunal for deciding these questions of construction, it is held that the construction to be placed upon the specification of an invention in a patent, so far as it depends upon the language used, is, as a general rule, a matter of law for the court." The same rule applies with respect to the construction of the Ian- [521] guage of the claim.' But this rule does not by any means exclude from the consideration of the jury all the questions connected with the subject of construction. The court decide, as to the sufficiency of a patent, whether the statements are sufficient in law ; it is a question for the jury to decide whether the statements are true in fact. The court does hot look beyond the patent and other papers, but the ' Turrill «. Michiigan, &c. R. R. Co., Winans v. Sohenectady & Troy R. R. ] Wall., 491. See, also, Hovey v. Co., 2 Blatchf., ^79. And see Act of Stevens, 3 Woodb. & M., 17; Winans March 3, 1837, § 6, 5 Stat, at L., 193. ®. Denniead, 15 How., 330. Experts may be examined to ex- " Kittle V. Merriam, 3 Gurt. O. Ot., plain, if necessary, models and draw- 475. ings. Winans v. New Yorl^ & Erie R. ' Phillips V. Page, 34 Sow., 164 ; R. Co., 31 How., 86, 100. Evans ». Eatjn, 3 Wheat., 454; Bar- "Hogg «. Emerson, 6 How., 437, rett B. Hall, 1 Mas., 447, 476. 484; Davoll ®. Brown, 1 Woodh. & M., *Hogg 11. Emerson, 6 How., 437, 53; ParKer «. Hulme, 7 West. Law J., 485. 417; Davis v. Palmer, 3 Brock. Marsh.,, 'Earls V. Sawyer, i Mas., l;"Wash- 398; Teese v. Phelps, 1 McAlL, 48. burn V. Gould, 3 Sturi/ C. Ct., 133; 1 A,nd see Emerson v. Hogg, 3 Blatchf., West Lain J-, 465, and 7 Law Bep., 1; Parker «. Stiles, 5 McLean. 44, 45; 376; Emerson v. Hogg, 3 Blatchf., 1; 7 West Law J., \Q8; Battin «. Clayton, Knight «. Gavit, Mir. Pat.-off., 133; 3 Wluirt. Big., 409. Hogg V. Emerson, 11 How., 587, 606; ' Winans v. Denmead, 15 How., 330; Heinfich «. Luther, 6 McLean, 845; Backer ». Hcrmance, 1 fitoic^^'., 898. 310 SUBJECTS OF JURISDICTION. jury decide from the papers, the evidence of the witnesses, an inspection of the old and new machine, and the models, the question whether, in point of fact, the specification, as made out at the trial, is sufficient.' The jury are to judge of the meaning of words of art and technical phrases in commerce and manufactures, and of the surrounding circumstances, which may affect, enlarge or control the meaning of the words of the patent and specification." Thus, objections to a patent, that the specification and claim are aot so precise as to enable any person skilled in the structure of machines, to make the one described," — that the invention is not new," — that a re- newed and the original patent are not for the same inven- tion,'— or that the patent was obtained with a fraudulent intent,' — all involve matters of fact which belong to the pro- vince of the jury, upon the evidence. [522] And when a claim in a patent does not point out and designate the particular elements which compose a combination, but only declares that the combination is made up of so much of the described machinery as effects a particular result, it is a question of fact which of the described parts are essential to produce that result ; and, to this extent, not the construction of the claim, strictly speaking, but the application of it, should be left to the jury.' Sect. 137. The title which may be shown hy the plaintiff. — The ' Whitney v. Emmet, Baldw., 303. quiry whether the benefits of an inven- ' Washburn v. Gould, 3 Story O. Ot., tion are of sufficient consequence to be 123; 1 West. Law J., 4:G5; 7 Law Sep., protected, it is proper to l^five the 276. question of utility to the jury. Lang- = Battin v. Taggert, 11 Bow., 74, 85; don ». De Groot, 1 Paine, 303. And Lowell 1). Lewis, 1 Mas., 183; Davis b. it is said, generally, that the question Palmer, % Brock. Marsh., 398; Parker whether an invention is patentable is V. Stiles, 5 McLean, 44; 7 West. Law a mixed question of law and fact, and J., 168; Carver v. Braintree Manuf'g should not, in ordinary cases, be dis- Co., 3 8tm-y 0. Ot., 433. posed of without the intervention of a * Carver v. Braintree Manuf'g Co., S jury, where the title has not been fixed Story 0. Ct., 433; Battin b. Taggert, at law. Teese v. Phelps, IMcAll, 17. 17 Bow., 74 ; Park v. Little, 3 Wash. ' Stimpson«. Westchester R, R. Co., 0. Ot., 196. _ iBow., 380; Battin «. Taggert, 17 Id., It is the province of the court to 74, 85 ; Carver v. Braintree Manuf'g decide what constitutes novelty, and Co., 3 Story 0. Ot., 432. of the jury to determine, from the evi- ' Carver «. Braintree Manuf'g Co., 2 dence adduced, whether the paten- Story 0. Ot., 432; Reutgen v. Ka- tee's invention is new. Parker v. nowrs, 1 Wash. O. Ct., 168; Gray®. Stiles, 5 McLean, 44, 60; 7 West. Law James, Pet. 0. Ot., 394. /„ 168. 'Silby®. Foote, UBow.,ZlS, 236; So where it becomes a matter of in- affirming 1 Blatehf., 445. PATENTS. 311 patent laws expressly confer upon the inventor both the power to assign a patent after it has been issued, and the powei' to assign the invention, leaving the patent to issue to •the assignee." There are, as is equally well settled, two other modes in which a patentee can vest an interest in the patent, in another person ; they are, by grant of an exclusive right, and by license. Thus there may be an assignment of the in- vention, or of the patent, by which is properly understood a written transfer of the whole interest, or of an undivided por- tion, for every part of the United States. Or there may be a written grant for the exclusive right (exclusive, even, of the patentee), under the patent, to make and use, and to grant to others to make and use, the thing patented, within and throughout some specified part or portion of the United States. Or there may be a written or oral license to make and use the thing patented, to a greater or less extent ; the right to grant licenses to other persons remaining in the licenser.' Moreover, by section 4896 of the Revision," where an inventor dies before a patent has been granted, the right of obtaining the patent shall devolve on the executor [523] or administrator of such person, in trust for the heirs at law of the deceased, in case he shall have died intestate ; or if he left a will, then in trust for his devisees. Under these principles, the right of action for infringement is not confined to the original inventorj as patentee, but suits may be brought by persons holding other interests.* The technical rules designating the persons who are necessary or proper parties in actions for the infringement of patents, are more appropriate to be stated in connection with the sub- ject of Procedure ; though some explanation is appropriate, here, of the effect of assignments. It is well settled that an inventor may sell his invention before he obtains a patent ; and after the patent has been ob- tained, the contract will secure to the assignee the extent of > The rig;hta of assignees of patent ' See Stimpaon«. Rogers, 4 Blatchf., rigbts, and of purchasers of patented 333. articles, are now governed Ijy sections ■■ The right of action accrues to the 4898 _and 99 of the Revision. person owning the patent at the time 'Potter®. Holland, 1 Fish., 327; 4 the infringement is committed. Moore BUtchf., 306. «. Marsh, 7 Wall, 515. 312 SUBJECTS OF yURISDICTION. his right. The provision of law which requires the application for a patent to be made in the name of the inventor, becomes necessarily a part of the contract ; the inventor sells his right, ■ and obligates himself to obtain a patent. Hence, an assign- ment of an invention is not void by being executed before the invention is patented. The thing to be assigned is not the mere parchment, but the monopoly conferred — the right of property which it creates ; and when the party has acquired an inchoate right, an assignment of it is legal. It is a good transfer of the right of the patentee immediately upon his ob- taining the patent, and he would be estopped from setting up any adverse title. And after the patent has been issued no new assignment is necessary ; the legal right to the monopoly and the property it creates is vested, by operation of the as- signment, in the assignee.' Upon still clearer grounds, and by the express per- [524] mission of the statute, the patent right, after a patent has been obtained, may be assigned. A similar distinction to that pointed out in the chapter on copyright, between the sale of mechanical instruments em- ployed in publication, and the right to publish, obtains in re- spect to patented articles. Thus the sale of a patented machine by a sheriff, under an execution, does not, in and of itself, convey to the purchaser any right to use the machine in the manner pointed out in the patent right. Nor is it necessarily such a sale as subjects the sheriff to an action for an infringe- ment of the patent right.' [527] Sect. 138. What amounts to infringement. — If it be es- tablished that a valid patent right has been created, and that this right, or an actionable interest in it, is vested ' Herbert v. Adams, 4 Mas., 15; which patented brakes were attached, Gayler «. Wilder, 10 Hnw., 477, 493; does not render him liable to account Rathbone «. Orr, 5 McLean, 131; Jen- for infringement upon thepatentright, kins v. Greenwald. 1 Bojid, 126; the exclusive use of the brakes having Id., 135; Chambers B. Smith, 5 Fish, previously been licensed to the com- Pat. Oas., 13. pany by the patentee. The assignee ° Sawin 9. Guild, 1 Qall., 485. used the brakes as an agent and not as So an assignment of the revenues of a purchaser; such use, in the came of a railroad by the company, to a pre- the company, being exclusi-ve, in the ferred creditor, and the use of the roll- meaning of the license. Emigb n. ing stock, has been held not a transfer Chamberlain, 1 Am. Law Beg. N. 8., of corporate entity or property ; and 207 ; 2 Fish., 192. the use, by the assignee, of cars to PA TENTS. 313 in the plaintiff in the action before the court, the principal question still remains ; — ^Do the acts of the defendant consti- tute an infringement or violation of this right? If the affirma- tive of this question is not established by the evidence, the defendant is entitled to prevail. This question, in its ordinary aspects, is a question of fact ; which it is within the province of the jury to determine.' It is for them, and not for the court, to decide whether the thing constructed and used or sold by the defendant is [528] the same with that, the patent right to which is held by the plaintiff." The question of infringement ia not a question of m'otive or intent, so much as it is a question of effect or result. If the acts of the defendant do in fact deprive the plaintiff of his exclusive right, to his injury, the defendant is not excused from compensatory damages, or an accounting, by the fact that he did not intend to impair, or even that he did not know of the patent right. ' But there should be an intent to do acts which deprive or tend to deprive the owner of the lawful rewards of his discovery." The making of a patented machine, merely for philosophical experiments, or for the purpose of ascertaining the sufficiency of the machine to pro- duce its described effects, is not an infringement of the right." But the making of a patented machine, fit for use, and with a design to use it for profit, if in violation of the patent right, is an infringement." In respect to the particular person among several concerned ' Eich V. Lippincott, a6 Jour. Fr. ment. Blanch ard's Gun-stock Turning Innt. 3rd 8., 13; Brooks v. Bicknell, 3 Factory v. Warner, 1 Blatohf., 358. McLean, 350; 1 West Law J., 150. ^ Parker e. Hulme, 7 Weit. Law J., ' Winans ». Denmead, 15 JSow., 330; 417; 1 i^isA., 44; Hawes v. Washburne, Whitney ». Enimett, Baldw., 303: Ma- ,5 Off. Pat. Gag., 491. ny V. Jagger, 1 Blatchf., 373; Tatham ■* Sawin ». Gruild, 1 Gall., 485. v. Leroy, 2 Id., 474; Smith «. Pearce, ° Whittemore v. Cutter, 1 Gall., 3 McLean, 176; Beutgen v. Kanowrs, 1 439; Poppenhusen v. Falke, 2 Fish., Wash. 0. Ot., 168; Odiorne v. Wink- 181. ley, 2 Gall., 51. « Whittemore ». Cutter, 1 ffasZ/., 429. It is a question of fact for the jury, See, also, ' on this subject, Evans «. whether a departure, in a defendant's Weiss, 3 Wash. O. Ct., 343; 3 Am. machine, from the arrangement of Law J., 180; McOlurg «. Kingsland, 1 parts in a machine described in the Hoio., 302; 17 Pet., 329; Stimpson ». ■plaintiff's patent, constitutes a material Westchester R. R. Co., 4 Row., 380; variation from the patentee's arrange- Simpson «. Mad River R. R. Co., 6 314 SUBJECTS OF JURISDICTION. in an infringement who is deemed responsible for it, the rule seems to be that a decree for an account cannot be had against a mere workman, who has been instrumental, while in the employment of another, in the infringement ; he having had nothing to do with the profits.' The person chargeable is the principal, — the person for whom, by whose direction, and on whose account, the articles are made and sold, — the person who receives the profits of the sale. The workmen employed by him for stipulated wages have nothing to do with his [529] rights, or with his invasion of the rights of another.' Hence an action may be maintained against a corpora- tion for the infringement of a patent, upon proof of a wrong- ful manufacture by agents of the corporation, with its ap- proval and for its benefit. A corporation can only act by its agents. It can only act by those who are in its employ. And when one in the employment of a corporation, in the business of his employment, does an act for its benefit, and which it adopts and approves, and takes advantage of, it will be deemed to have authorized the act, and will be as much bound by it as though expressly authorized.' The purchase of a manufactured article, made in violation of a patent of a third person, but without any connection on the part of such purchaser with the manufacture, except as a purchaser, will not make the party buying guilty of an in- fringement of the rights of the patentee, as having used the patented invention. Thus in general, a contract to buy all the McLean, 603. tinuing the use of the brakes. He It has V)eeD said that he who makes uses them as agent of the company, or uses a patented machine, does it at rather than as purchaser. And the his peril. He takes upon himself all fact that the assignment is void as to the chances of the patent being origin- other creditors, makes no difference in ally valid, or being afterwards made this respect, if it is valid between the so by a surrender and the grant of a parties to it. Emigh v. Chamberlain, new one; which may cure all defects. 1 Bias., 367. Ames «. Howard, ] Sumn., 483. = Delano v. Scott, Oilp., 489, 498. ' Sargeant v. Lamed, 2 Ourt. G. But compare Bryce v. Dorr, 8 McLean, Ct., 340. And see Lightener «. Kim- 583. ball, 1 Low., 311. = Poppenhusen v. Xew York Gutta Where a railroad company using Percha Comb Co., 3 Fish., 63. patented brakes, under a license from As to when one joint owner of a pat- the patentee, transfers the use of the ent may be held liable to the other road and rolling stock to a preferred owner for infringement, — see Clum v. creditor, such an assignee does not Brewer, 3 Gurt. 0. Gt., 506 ; Pitts ®. become liable as an infringer by con- Hall, 3 Blatchf., 301. PA TENTS. 315 product of a patorited macliine, daring a certain period, does not rendor the purchaser liable to an action of infringement for the use of the machine on which it is made. Otherwise, if such contract is only a colorable purchase of the products, and is in reality a hiring of the machine. ' Subject to the above considerations, the question of in- fringement usually hinges upon the identity or difference be- tween the thing patented by the plaintiff and that made by the defendant. To constitute an infringement, the thing used by the defendant must be such as substantially to embody the patentee's mode of operation, and thereby attain the same kind of result as was reached by his invention. It is not necessary that the defendant should employ the plaintiff ' s invention to as good advantage as he employed it, or that the result should be precisely the same in degree ; nor that the thing patented should be adopted in every particular. If the patent is adopted substantially by the defendant, he is guilty of an infringement." Under this head, the [530] prominent consideration is, whether the machine used by the defendant is substantially, in its principle and mode of operation, like the plaintiff ' s. If so, if the principle on which the machinery works is the same, and the effect is simi- lar in both, in contemplation of law the machines are identi- cal,' and the defendant is chargeable with infringement. Thus, where a patented machine is capable of performing several functions, —as Blanchard' s machine for turning irre- gular forms, — and a person constructs a machine to perform, but one of such functions, — as the turning of wagon spokes, — ■ it is an infringement.'' What constitutes form, and what principle, is often a nice question to decide. The safest guide to accuracy in making the distinction, is to ascertain what is the result to be obtained ' Goodyear v. Railroad, 3 Wall. Jr. Rep., 383. C. Ol. 356; Anon., 3 West. Law J., » Odiome v. Winkley, 2 Gall., 51 ; 144; Blanohard's Gun-stock Turning Howe ». Abbott, 'i Story O. Ot., 190; Factory ®. .Jacobs, 2 BUtchf., 69. See, Grant v. Mason, 1 Law Int. & Bei)., also, Keplinger v. De Young, 10 22; Parker «. Haworth, 4 McLean, Wheat., 358. - 370 ; Brooks v. Bicknell, 3 Id. 250; 1 ^ Winans v. Denmead, 15 Row., 330; West. Lain J., 150. Soot «. Ball, 4 McLean, 177 ; Alden * Blanchard v. Beers, 3 Blatchf., », Dswey, 1 Storif 0. Ot., 336 ; 3 Law 411. 316 SUBJECTS OF JURISDICTION. by the discovery ; and whatever is essential to that object, in- dependent of the mere form and proportions of the thing used for the purpose, may generally, if not universally, be consid- ered as the principle of the invention.' The word principle, as applied to machines in the patent law, does not import a new mechanical power, — none such have been discovered for cen- turies. The particular means employed for producing a given result by a mechanical contrivance ; — for applying, modify- ing, or combining mechanical powers to produce a certain re- sult, constitutes what is termed the "principle" of the ma- chirte." Thus, the principles of two machines may be the same, altliough the form or proportions may be different. They may substantially employ the same power in the same way, though the external mechanism may be apparently different. On the other hand, the principles of two machines may be very differ- ent, although their external structure may have great simi- larity in many respects.' And generally, where two [531] machines or things are made to operate substantially in the same way, so as to produce the same result, they are considered the same in principle. Thus, where any of the mechanical powers, the lever, screw, wheel, &c., are used to accomplish certain purposes, the same powers being used, the fact that they are used in a somewhat different form, to do the same thing, will not constitute a difference in principle. Whether the mechanical instruments be larger or smaller, whether their action be horizontal or vertical, the principle is the same.* Again, the general rule is, that a change in. or variation ' Treadwell o. Bladen, 4 Wo,»h,. O. observing their mode of operation, Ot., 703, 706. To nearly the same whether the one, in the whole, or iii effect, Gray ». James, Pet. 0. Ct., 394; any of its parts, is a mere colorable or Olcott V, Hawkins, 3 Am. Law J. N. formal alteration of the other. If a 8. 831. patentee has invented a combination " Smith ». Pearce, 2 MeLean, 176 ; of two or more old things, so as to Parker v. Stiles, 5 Id., 44, 63 ; 7 produce a new and useful result, he West. Law J., 168. Bee also, Le Roy has a right to treat as infringers all 11. Tatham, 32 How., 133, andTatham who have used his invention, ia order 4). Le Koy, 3 Blatelif., 474. to accomplish something more or bet- ° Barrett ®. Hall, 1 Mas., 447, 471; ter when, without the aid of such in- Blanchard v. Beers, 3 Biatchf., 411. vention, it could not be effected. It must always be very much a mat- Sayles v. Chicago, &c. R. R. Co., 4 ter of judgment to the eye, in the ex- Fish. Pat. Gas., 584. amination of two machines, and in ' Roberts v. Ward, 4 McLean, 565. FA TENTS. 317 from the plaintiff's macMne, wMcli affects merely its form or proportions, &c., 6r involves merely the substitution of one mechanical equivalent for another, does not constitute such a change as will relieve the defendant from the charge of in- fringement.' For in order to constitute an infringement, it is not necessary that the arrangement and combination used by the party charged with infringement should be the same to the eye as the patented invention. If they embody the ideas of the patentee, and the machinery of the defendant dperates by such adoption and appropriation, then, though the ar- rangement may be apparently different, in reality and in judgment of law an infringement exists.' And, although the principle which underlies the patent law undoubtedly is, that a patent covers only the improve- ment precisely described, and is not violated unless the de- fendant made use of the precise thing described in the patent, yet if the imitation be so nearly exact as to satisfy the jury that the imitator attempted to copy the model, and to make some almost imperceptible variation, for the purpose of evad- ing the right of the patentee, this will be considered as a fraud upon the law, and such slight variation may be disre- garded/ ' Winans v. Denmead, 15 Sow., ted as evidence. But care should be 330, 343 ; Wyeth v. Stone, 1 Story 0. taken to distinguish what is meant by Ot., 273 ; 4 Laio Sep., 54; Gorham v. "principle," the true, legal meaning Mister, 1 Am. Law. J. N. 8., 543 ; of which, in respect to a machine, is 19 HunVs Mer. Mag. (Sept., 1848), the peculiar structure or constituent 296 ; 5 West. Law J., 535 ; Sargeant parts of such machine. And in this «. Lamed, 2 Curt. C. Ct., 340 ; Blan- view the question may be veiy prop- chard' ». Beers, 2 Blatchf., 411 ; Amer- erly asked, in cases of doubt and com- ican Pin Co. a. Oakville Co., 3 plexity, of skillful persons, whether Blatchf., 190 ; 3 Am. Law Beg., 136 ; the principles of two machines are the Sickels ■». Borden, 3 Blatahf., 535 ; same or different. Barrett v. Hall, 1 Dixon V. Moyer, 4 Wash. C. Ct., 68. Mas, 447, 471 ; Parker v. Stiles, 5 A charge of infringement will not McLean, 44, 64. The law contem- be avoided by making an unnecessary plates two classes of persons as appro- and useless addition to the invention, piiate witnesses. First. Artisans, or Poppenhusen ®. Falke, 5 Blatchf., 46. persons practically engaged in the ' Smith «. Higgins, 1 Fish, 537. trade, employment or business of the 'Davis ®. Palmer, 2 Brock. Marsh., particular branch of mechanics to 398. which the patent right applies, may It has already been stated that the be examined as to whether the speci- question of the identity of principle fication sufficiently describes the in- or form is a question of fact for the vention so that, it can be constructed jury to determine. To aid in such and used. Second. Persons who, al- decision the opinions of skillful wit- though not practical artisans, are nesses, whether the principles of two thoroughly conversant with the sub- machines are the same, may be admit- ject of mechanics as a science, may be 318 SUByECTS OF JURISDICTION. [533] There is, however, a class of cases in which variations in form liave peculiar importance ; they are the cases in which form is the essence of tlie invention. Thus, where one particular geometrical form alone is capable of embodjdng the invention, that form must be used, to aitaount to an in- fringement. But the rule is otherwise where the form desig- nated by the inventor is the best, and still other forms may and do embody the invention.' So, where a patent extends only to the form or parts of the machine as set out, and niade of any kind of materials, or saying nothing as to materials, the right would be violated by a machine of like form, of whatsoever materials made ; as the form would be the only matter patented." Where the patent under which the plaintiff claims was is- sued for a new combination of old parts, the rule requires him to show that the defendant has used all the elements of the combination. As the combination is the essence of the thing patented, if the defendant has used some of the parts only,' omitting one or more, he has not used the combination, and there is no infringement.' Thus, it has been held that examined as to novelfy of invention, or identity or diversity of mechanical apparatus, and contrivances, and equivalents. Allen ®. Blunt, 3 Story 0. Gt., 743, 747 ; Olcott v. Hawkins, 3 Am. Law J. if. S., 331. And the testimony of a chemist, who has analyzed the ingredients of a composition or matter, as to the na- ture of such composition, is not matter of opinion, but evidence of a fact de- monstrated. Allen «. Hunter, 6 Mc- lean, 303, 313 ; and see Turner ». The Black Warrior, 1 McAll., 181. ' Winans- v, Denmead, 15 How., 330. " Aiken v. Bemis, 3 Woodi. & M., ,848. ^ This rule is of frequent applica- tion. See Prouty v. Ruggles, 16 Pel., 336: affirming 1 Btory, O. 01., 568; Stimpson «. Baltimore & Susquehanna R. R. Oo., 10 Sow., 829; McCormack V. Talcott, 30 Id., 402; Eames v. God- frey, 1 Wall, 78; Barrett v. Hall, 1 Mae., 447; Moody «. Piske, 3 / lb. ; The Springbok, 5 Wall., 1 ; ^ \% Stat, at L., 306. affirming Blatchf. Pr. Oas., 484. " Ante, p. cv. CHAPTER XI. REVENUE. Caitses of action connected with or arising out of the laws for the collection of the revenue of the national government are brought, by obvious considerations, within the jurisdiction of the national courts. If the governn^ent of the Union were made dependent upon the courts of the States for aid in the enforcement of the laws providing revenue, the most serious embarrassments to the fiscal operations of the general govern- ment might be anticipated, at any crisis when the interests of the general government and those of the States, upon ques- tions of revenue, should unfortunately become opposed. Sim- ilar consequences would follow indirectly if the revenue offi- cers of the general government were liable to be called upon in the courts of the several States, to answer for acts done in the performance of their official duties. Such a practice would bring the administration of the revenue laws almost as completely under the control of the States as would a practice of resorting to State^courts in the first instance for the en- forcernent of those laws. We therefore naturally expect, in pursuing our examination of the jurisdiction of the national courts, to find that ample provision has been made to bring all judicial proceedings instituted for the collection of revenue, or for the review of the executive acts of revenue officers, within the jurisdiction of the courts of the United States. Sect. 149. Action for duties. -^Of course it is understood that the principal means employed by the government for the collection of "duties," — here using the term to denote con- tributions to the revenue exacted as the condition of allowing importation of goods from abroad, — consist in [556] [3431 344 SUSyECTS OF JURISDICTION. taking possession of the goods on whicli duties are charge- able, upon their arrival in port, and holding fhem in custody of the custom-house until the duties are paid, or sell- ing them in the event of non-payment. But this is not the only remedy of which the government may avail itself. An action for the recovery of duties will lie on behalf of the government, and may be brought whenever circumstances render it expedient. It is clear, upon principle as well as the obvious import of the various provisions of the acts of Con- gress on that subject, that the duties chargeable upon goods imported constitute a personal debt due to the United States from the importer, independent of any lien on the goods, and any bond given for the duties. The remedy of the United States is not exclusively confined to the lien on the goods, and the security of the bond,' but may be sought by action in the courts. The right of government to claim duties, by action, or otherwise, must be declared by statute, or it does not exist. The right of Congress to pass such statutes is fully conferred by the Constitution." And as Congress has the constitutional power "to lay and collect duties," so it possesses the inci- dental right to prescribe the manner in which the duties shall be levied, and the value of goods ascertained, and the condi- tions upon which importation shall be permitted.' But no duties are payable on goods imported into the United States, unless especially prescribed by statute.'' In determining whether a right of action for duties exists under either of the revenue laws, as well as in deciding other questions connected with this subject, it is to be borne in mind that the revenue laws of the United States are to be so ^ Meredith v. United States, 18 Pet., extends only to seizures for forfeitures 486 ; United States ». Genrge,6 Sfaic^., under duty laws; as conferred by 406 ; United States ®. Dodge, Deady, section 9 of the judiciary act of 1789 134. (1 Stat, at L., 76). The payment of Debt lies in favor of the United duties can only be enforced by pro- States against the importer, for the ceedings on the common law aide of duties due on goods imported. Uni- the court. United States ®. Boxes of ted States ■». Lyman, 1 ifa«., 483; Uni- Pipes, 3 J.4A. TI. 8. 500. ted States ii. Hathaway, 3 Id., 334. " Oomt. of U. 8., Art. VIII., § Tin. Sio Aoes indebitatus assumpsit. Uni- 1. ted States «. Howland, 3 Oraneh C. ' Tappan v. United States, 3 Mas., Ct., 508. 393. But the admiralty jurisdiction of ■* The Liverpool Hero, 3 Oall., the district court in revenue cases, 184. REVENUE. 345 construed as most effectually to accomplish the intention of the legislature in passing them, viz. : the raising revenue for the support of government. They do not fall within the rule that penal laws are to be construed strictly, in favor of those who may be prosecuted under them.' It is true [557] these laws are not construed beyond the natural import of the language, and duties are never imposed upon the citi- zens upon doubtful interpretations." But the object of them is the collection of duties ; they are not intended to provide for the punishment of crime,' and are not restricted by those rules of statutory construction which govern the courts in the administration of penal statutes. It has been held, however, that where serious ambiguity occurs in the language of a tariff act, or a doubtful classification of articles, the construc- tion must be in favor of the importer, as duties are never to be imposed on the citizen upon vague or doubtful interpreta- tions.' A class of questions of construction peculiar to this sub- ject, arise upon the meaning of terms employed in tariff laws, to designate the kinds of merchandise upon which a particu- lar rate of duty is chargeable. Nice and diflBlcult questions occur, where the law imposes a rate of duty upon articles designated by a name, or by words describing their class, whether the particular article imported is included within that name or class, or not. The rule of construction in this respect is, that the denomination of articles in tariff laws is to be construed according to the commercial understanding of the terms used.* The courts are guided in ascertaining the meaning of terms used in a tariff act, by their meaning according to the commercial understanding of the terms in the markets of the United States at the time the act was ^passed ; unless it appears from the act itself that some other certain fixed meaning is intended by the terms used." And a term employed by Congress in a revenue act, to designate an article as the subject of duty, is to be understood in its ordinary commercial sense, rather than in its scien tific mean- ' United States o. Twenty-flye Cases * Powers ». Barney, 5 Blatchf., 302. of Cloths, Grabhe, 356. ' Beatty v. United States, Dev., 70 ; ' Adams v. Bancroft, 3 Svmn., 384; Id., 331. 1 Law Sep., 319. 'Roosevelt v. Maxwell, 3 Blatchf., = United States ». Twenty-eigbt 391. Packages, Qilp., 306. 346 SUBJECTS OF JURISDICTION. ing, where they differ. The object of the duty laws is to raise revenue ; and for this purpose to classify substances according to the general usage and known denominations of trade. Whether a particular article is designated by one name or. another in the country of its origin ; or whether it is a simple or mixed substance, is unimportant.' Under [558] these principles is has been held that the term " Bohea tea," in an act imposing duty upon it, must be under- stood to mean the description of tea which is commonly known under that name, in our markets ; and not necessarily that which is so called in China." So under a tariff act im- posing a duty on " loaf sugar," it was held that these words must be considered according to trade and commerce, and buying and selling ; and if, uJ)on the evidence, that were un- derstood to mean sugar in loaves, then crushed loaf sugar was not "loaf sugar" within the act.' So, generally, a duty imposed upon a particular article by descriptive name, —for example, "cotton-bagging," — can only be collected from ar- ticles of the kind known in commerce by that name at the time when the act was passed.' So it has been held, that worsted shawls or suspenders are not dutiable as being "a manufacture of wool, or of which wool is a component part," within the meaning of an act imposing a duty upon that class of manufactures. This decision was placed upon the ground that, although worsted is made of wool by combing, yet it thereby becomes a distinct article, well known in com- merce by that denomination ; and Congress must be presumed to have used the term in this its commercial sense, and as contradistinguished from wool, and woolen goods, and other well-known denominations of goods." ' Two Hundred Chests of Tea, 9 known here, and no different appella- Wheat., 430; Barlow v. United States, tion exists in domestic use, it is to be 7 Pet., 404; United States ». One presumed that in commercial law, the Hundred and twelve Casks of Sugar, legislature used the word in the foreign 8 Pet., 277; Elliott «. Swartwout, 10 sense. lb. Id., 137; Cuitis «. Martin, 3 How., * Curtis ■». Martin, 3 How., 106. 106; Lawrence v. Allen, 7 Id., 785, ' Elliott ». Swartwout, 10 Pet., 137. 791; De Forest «. Lawrence 13 Id., Other illustrations of the general rule 374; Rheimer v. Maxwell, Z Blatchf., stated in the text maybe found in 124; Lennig ». Maxwell, Id., 125. United States «. Eighty-five Hogsheads "Two Hundred Chests of Tea, 9 of Sugar, 2 Paine, 54; United States Wheat., 4Aa. v. Sarchet, Gilp., 273; Maillard ■». ' United States v. Breed, 1 Sumn., Lawrence, 1 Blatchf., 504; 2 Law Sep. 159. When a foreign name is well- N. 8., 354; affirmed, 16 How., 251. REVENUE. 347 The general rule of construction above stated is, however, subject to the restriction that the intent which appears to hav actuated Congress in passing the act under considera- tion must control. If there is reason to perceive that they employed a name or designation in any sense different from its ordinary acceptation, that sense must be assigned to it.' The inquiry what rate of duty is imposed by law upon the goods under consideratioA, which is the lead- [559] ing inquiry in adjudicating upon a claim, is to be an- swered by comparing the article imported, as made known by the evidence in the cause, with the designation given in the act of Congress in force at the time, and supposed to be ap- plicable to the case. If the designation given in the act, taken in its ordinary commercial sense, or in such special sense as may appear to have been particularly intended by Congress, and construed with a reasonable purpose to carrj'- into effect the general object of providing a revenue, embraces the merchandise involved in the particular case, the merchan- dise is liable to duty ; otherwise it is not. The acts imposing duties, in force to December 1, 1873, were revised and consol- idated in title 33 of the Revised Statutes. Laws on this sub- ject, are, however, liable to frequent Changes ; for which the annual volumes of the Statutes at Large must be consulted. Two facts besides the dutiable character of the goods may require to be established in an action for duties. The impor- tation of the goods fixes the indebtedness for the duties ; and it is complete and perfect, and the obligation to pay duties is fully accrued when the vessel bringing merchandise, volunta- rily arrives in port, with intent to unload." The bringing in of the goods must be voluntary ; for goods brought by superior force or inevitable necessity into the United States, are not deemed to be imported in such a sense that the right to duties necessarily attaches to them. If, however, such goods are For additional illustrations of these Roosevelt i^. Maxwell, 3 Blatchf., 391. principles of construction, see Abbott's And the features of a course of legis- Nat. Dig., title Duties, IV. lation may make it apparent that Con- ' Thus it is not to be presumed that gress did not intend to include a par- Congress, when it substitutes the pro- ticular article under a name which, visions of one tariff act for those of according to commercial men, would another, intends to use terms in a include it. De Forrest ». Lawrence. 13 sense diilerent from that in which How., 274. they were used in the prior act. ° The Mary, 1 Oall., 306 ; The Bos- ton, Id., 239. 348 SUSyECTS OF JURISDICTION. afterwards sold or consumed in the country, or incorporated into the general mass of its property, they become retroactively liable to the payment of duties.' And there must be at least an intent to unload ; for there is no importation within the revenue laws, if a vessel enters a port and then [560] goes to sea without landing her cargo." Moreover, duties are chargeable only upon the quantity actually brought into the United States ; and none are payable upon any portion which^ although received on board to be imported, has been lost on the way by leakage, waste, perils of the seas, or other caiises.' But neither actual unloading nor entry at the custom-house is necessary to complete the right of gov- ernment to claim duties.* The right to duties accrues by the ' The Concord, 9 Crandi, 387 ; fol- lowed, The Nereide, 1 Wheat., 171; The Mary, 1 Qall, 206. Tlie word "arrival" means an arrival for pur- poses of business requiring an entry and clearance, and a stay at port so long as to require some of the acts con- nected with the business. A mere touching at port for advices, or to ascertain the state of the market, or being driven in by an adverse wind, 'and sailing again so soon as it changes, is not an "arrival." Harrison ». Vose, 9 How., 373, 378. See, also. United States V. Shackford, 5 Mas., 445, 447. But the •words "arrive" and " enter " are not always synonymous ; and there certainly may be an arrival without an actual entry, or attempt to enter. United States d. An Open Boat and Lading, 5 Jfas., 130, 133. Com- pare The Patriot, 1 Brock. Mavsh., 407. " Kohne v. Insurance Co. of North America, 1 Wash. 0. Ct., 158. ' Lawrence v. Caswell, 13 Sow., 488; Schuchardt ®. Lawrence, 3 Blatchf., 397; Sturges v. United States, Bev., 323; 4 Am. Law Beg., 335 ; Marriott «. Brune, 9 , How., 619 ; United States «. Southmayd, Id., 637; and see Act of March 3, 1799, § 38, 1 Btat.atL., 671. The laws of the United States, in relation to dommerce and revenue, use the word "import" in its commer- cial sense, — which is to bring from a ioreij^n jurisdiction into this jurisdic- tion, merchandise not the product of the country. United States v. The Forrester, 1 Newb., 81, 94. And the term " imports " can cover nothing which is not actually brought into our limits, — that is, the whole amount which is entered at the custom-house, and all which goes into the consump- tion of the oountty. Marriott v. Brune, 9^p«'.,619, 632. An anc'hor with chain cable, pur- chased abroad by an American vessel, to supply the place of one which has become unseaworthy, after the sailing of the vessel from a port of the United States, if such purchase is made lona fide for the use of the vessel, and not to sell it again as merchandise, becomes Jona7?iiea;part of the equipments and appurtenances of the vessel, and is not subject to duty as "goods, ware^, and merchandise," within the meaning of the revenue laws. Weld ». Maxwell, 4 Blatchf., 186. * Perots V. United States, Pet. C. Ct., 256; United States «. Lindsay, 1 Qall.,. 365. Duty is properly charged on "aban- doned " goods, that is, on goods never withdrawn from warehouse for any purpose, but left at the disposal of government and permitted to be sold. The ten per centum additional duty imposed by act of March 14, 1866 (14 Stat, at L., 8), upon goods withdrawn from warehouse after expiration of one year from date of importation, is also to be assessed upon goods never with- drawn, but sold to satisfy duties, and REVENUE. 349 importation with, an intent to unload ; and immediately upon the importation, the duties become a personal charge and debt on the importer.' The indebtedness for the duties accrues, in the fiscal sense of the term, when the goods have arrived at the port of entry ; although the importer may en- title himself to an extended term of credit, by making a deposit of the goods, or giving a bond for the payment of the duties, according to the regulations of acts of Congress." But the importation of foreign goods is not to be regarded as com- plete, as between the importer and the government, so long as the goods remain in the custody of the officers of the cus- toms. Until such goods are delivered to the importer, whether they remain on shipboard or in warehouse, they are subject to any duties on imports which Congress may see fit to impose.' The question who is the individual liable to action for du- ties seldom presents practical difficulties. In general, the lia- bility attaches to the "importer;" the person directing and controlling the importation ; for whose profit it is made. It was held under the provisions of the Collection Act of 1799, authorizing consignees to enter goods, and give [561] bonds for the duties, the United States have no remedy over against the owners of the goods, for whom the consignee acts as agent or trustee, if the duties are not paid.* The con- signee is to be considered as owner, and the consignor cannot be deemed indebted for the duties.' Where importers employ r such amount is to be deducted from 348. Hence, if a duty be increased or proceeds of sale in addition to the diminished by law, before arrival at legular duties. It is clearly the inten- the port of entry, though after the ar- tion and meaning of the warehouse rival in the collection district, the in- acts, that the government should creased or diminished duty is to be receive the same duties on goods aban- paid. Thus, where the duty on salt doned and sold to satisfy duties, that ceased on December 31, 1807, and a it would have received if the same vessel laden with salt arrived within goods had been withdrawn for con- the collection district before that day, sumption. United States «. Nuger, 18 but did not arrive at a port of entry hit. Bev. Sec., 16,4. until January 1, 1808, it was held that ' United States v. Lyman, 1 Mas., the cargo was not, liable to duty. 483; Prince «. United States, 3 GaU., United States «. Vowell, 5 Crunch, 204 ; United States ®. Lindsey, 1 Id., 368. Compare Ayer ®. Thacher, 8 365. Jfas., 153, 155. ' Meredith v. United States, 13 Pet., = United States v. Benzon, 3 Cliff., 486. The arrival contemplated is an 513. arrival within some port of entry. * Knox v. Devens, 5 Mas., 380. United States v. Vowell, 5 Cranch, ' United States v. Murdock, 3 368. Followed, Arnold o. United Oranch C. Ct., 486. States, 9 Id., 104; affirming 1 Gall., 350 ^WSyECTS OF JURISDICTION. agents to pass goods through the custom-house, and the agents, known so to be, obtain certain goods free of duty, if a mistalie of the revenue officers is afterwards discovered, and the goods appear to have been chargeable, the agents are not liable for the sum so due.' And where an executor has entered goods of his testator, and has given bond for duties, and sub- sequently becomes insolvent, having wasted the assets, the United States may claim payment of a debt for duties, from the sureties in the probate bond of the executor. They are not obliged to resort for payment to the surety on the custom- house bond, in the first instance." Sect. 150. Action to recover back excessive duties. — The case not unfrequently occurs, that a higher rate of duty than the law allows is exacted by the collector upon a particular im- portation, through misconstruction of the law, or similar causes not inconsistent with good faith on the part of the officer. The importer is under the necessity of paying, in the first instance, the sum which the collector finally decides to be chargeable ; as without such payment he cannot obtain his goods. He must, therefore, seek relief by some proceeding to recover back the excess of duties he has paid. Two modes of relief are provided ; one by appeal to the secretary of the treasury ; but this, not being a judicial proceeding, is beyond the scope of our work. The other, by action at law, against the collector, as an individual, to recover back the sum paid in excess, must be explained.' This righ t of action is now given by section 3011 of the Revision, which provides that : "Any person who shall have made payment under protest and in order to obtain possession of merchandise imported for him,* to any collector, or person acting as collector, of any ' United States o. Bevaa, CraVbe, 834. ment and liquidation of duties by the " United States v. Aborn, 3 Mas., collector is final and conclusive, and . 136. . cannot be questioned by tUe importer. ' The only way, in (he courts, in United States v. Cousinery, 19 Int. which an importer can question or Bev. Bee, 125. show the incorrectness of the rate and Against the jurisdiction of the court amount of duties ascertained by the of claims to entertain a petition collector is to protest, appeal, pay the against the government for recovery duties as ascertained by the collector, of excess of duties paid under protest, and sue to recover back the duties so see Nichols v. United States, 7 TTaK., paid. In an action brought by the 133. government for duties, the ascertain- ' The tariff acts of 1799 and 1845 REVENUE. 351 money as duties, when such amount of duties was not, or was not wholly, authorized by law, may maintain an action in the nature of an action at law, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid. But no recovery shall be allowed in such action unless a protest, in ,; writing, and signed by the claimant or his agent, was made and delivered at or before the payment, setting forth dis- tinctly and specifically the grounds of objection to the amount claimed." ' do not prevent the actual owner of goods imported, from suing for the recovery of duties paid under protest by the consignee, and do not require such suits to be brought in the name of the consignee. Mason t. Kane, Taney, 173. ' The history of this species of action, is briefly, this : Prior to the year 1839, such actions were sustained upon general princi- ples. It was held that a collector was generally liable ia an action to recover back an excess of duties paid to him as collector : First, When the duties have been illegally demanded, and a protest of the illegality has been made at the time of payment, or notice given thaj. the party means to contest the- claim. Second, Where the excess of duties has been paid under a mistake of fact, and notice thereof has been given to the collector before he has paid over the money to the govern- ment. Elliott V. Swartwout, 10 Pet., 187; Bend «. Hoyt, 18 M., '263; Knoedler v. Schell, 4 Blatchf., 484. The act of March 3, 1839, enacted that money paid to any collector for unascertained duties, or duties paid under protest, should be placed to the credit of the Treasurer of the United States, and kept and disposed of as other money paid for duties ; and not held by the collector to await the re- sult of any litigation ; and that when- ever it should iSe shown to the satisfac- tiop of the Secretary of the Treasury that, in any such case, more money had been paid to the collector than the law required to be paid, the Secretary of the Treasury should direct the ex- cess to be refunded. Although such was probably not the real intention of Congress in the act, yet the Supreme Court held, (in Cary ». Curtis, 3 How., 236), that the neces- sary effect of the statute was to abro- gate the right of action against the collector, at least after he had paid the money into the treasury. They held that the action against the collector, as an individual, was founded upon what the law terms an implied promise on the part of the defendant to pay what in good conscience, he is bound to pay to the plaintiff. Where the case shows that it is the duty of the defen- dant to pay, the law imputes to him a promise to fulfill that obligation. Grounds fpr implying such a promise must exist in order to maintain the ac- tion. But the law noverimplies a prom- ise to pay,unles3 some duty creates such an obligation, and more especially it never implies a promise to do an act con- trary to duty, or contrary to law. Col- lectors, under the act referred to, were required to pay all moneys received for unascertained duties, or for duties paid under protest, into the treasury of the United States; and conse- quently the court held that, in a case arising under that law where that duty had been perforined by the collector, the law would not imply a promise on his part to pay the same back to the im- porter, because he was under no obliga-' tion to pay the money twice,and to have paid the same back to the importer in the first place would have been con- trary to his official duty as prescribed by an act of Congress. The remedy of the importer, under this view, was limited, after the col- lector had paid over, to an application to the Secretary of the Treasury to re- fund the amount improperly collected. 352 SUBJECTS OF JURISDICTION. And section 3012 provides that : "No suit shall be maintained in any court for the recovery of duties alleged to have been erroneously or illegally exacted by collectors of customs, unless the plaintiif, within thirty days after due notice of the appearance of the defendant, either in person or by attorney, serves on the defendant or his attorney a bill of particulars of the plaintiff's demand, giving the name of the importer or importers, the description of the merchandise, and place from which imported, the name of the vessel, or means of importation, the date of the in- voice, the date of the entry at the custom-house, the precise amount of duty claimed to have been exacted in excess, the date of payment of said duties, the day and year on which protest was fil^d against the exaction thereof, the date of appeal thereon to the Secretary of the Treasury, and date of decision, if any, on such appeal. And if a bill of particulars, containing all the above-mentioned items, be not served as aforesaid, a judgment of nonpros, shall be rendered against the plaintiff or plaintiffs in said action." And section 2931, which authorizes an appeal from a col- lector's decision as to the rate and amount of duties payable, to be taken to the Secretary of the Treasury, provides that : " No suit shall be maintained in any court for the recov- ery of any duties alleged to have been erroneously or illegally exacted, until the decision of the Secretary of the Treasury shall have been first had on such appeal, unless the decision of the secretary shall be delayed more than ninety days from the date of such appeal in case of an entry at any port east This result of the act of 1839, hav- recover the amount of duties so paid ing been ascertained by the decision of under protest, unless the said protest the Supreme Court above mentioned, was made in writing, and signed by Congress passed the act of February the claimant, at or before the payment 36, 1845; upon which the enactment of said duties, setting forth distinctly cited in the text, is founded. This and specifically the grounds of objec- statute declared that the act of March tion to the payment thereof." 3, 1839, should not impair the right This statute restored the right of to maintain an action against the col- action against the collector, subject to lector to try the legality of the demand the condition that a foundation must and payment of duties; nor should it be laid for it, by serving upon the col- authorize the Secretary of the Treas- lector, before paying the duties iu ury to refund duties paid under pro- question, an explicit and written pro- test. And it contained the follow- test against the demand. Enoedler ». ing provision : " Nor shall any action Schell, 4 Blatchf., 484. See also, be maintained against any coiiector to Drake v. Redfield, 4 Blatdt^.^ 116. REVENUE. 353 of the Rocky Mountains, or more than five months in case of an entry west of those mountains." ' The service of the protest mentioned in Section 3011, is essential as the ground of the action. Independent of the statute provision, a payment made without some protest or notice of objection would be deemed a voluntary payment, and would not be recoverable ; tliough reducing the protest to writing would not be essential. But under the statute a written protest, signed by the party, with a statement of the definite grounds of objection to the duties demanded and paid, is a condition precedent to a right to sue in any court for their recovery.' And no protest can be regarded as operating to take the payment out of the rules applicable to payments voluntarily made, unless it conforms to the statute require- ments ; it must be in writing, and signed ; and it must set forth distinctly and specifically the grounds of objection to the payment.' The decisions under the act of 1845, from which section 3011 was taken, as to the requisites and sufiiciency of the protest, are in general, still applicable. It has been held that in the application of the statute of 1845, the protest may be regarded as a commercial document, and technical accuracy is not to be required in it.' It may be aided, where circumstances render such course [564] proper, by reference to the invoice and entry." It may be signed by an authorized agent of the importer, as well as by the importer in person." But the claimant's signature to another distinct paper writing, to which the protest is annexed by a wafer, not referring to the protest, nor in any manner making part of it, is not a compliance with the requirement of the statute that the protest be signed by the claimant.' It ' A similar condition is imposed by How., 110 ; Curtis ». Fiedler, "iiBlaele, section 8933, upon suits brought to re- 461; Schlesin'ger v. United States, 1 cover back excessive fees or official Gt. of 01., 46 ; Sadler v. Maxwell, 3 charges, Bldtehf., 134. 'Nichols B. United States, 7 Wall., *Swanstou ». Morton, 1 Gurt. G. Gt., 133 ; Falleck «. Barney, 5 Blatchf., 38. 394. The fact that the collector exacts " Thompson v. Maxwell, 3 Blatchf., duties in violation of instructions does 885 ; Vaccari v. Maxwell, 3 Id., 368. not supply the want of a protest. And see Lillie a. Redfleld, 4 Id., 41. Moke V. Barney, 5 Blatchf., 374. '.Gray «. Lawrence, 3 Blatchf., 117. ^ Consult United Stales v. Clement, ' Florio v. Peaslee, 3 Curt. C. Gt., Orabbe, 499 ; Swartwoat «. Gihon, 3 453. Vol. I.— 33 SU SUBJECTS OF JURISDICTION. must set forth, distinctly and specifically, the grounds of objection to the duties demanded ;' must point out to the collector, by positive and direct notice, every particular of ifact and of law vrhich he relies upon as protecting his goods from the duties demanded." This is a condition precedent to any action against the collector ; and is required in order that the officer may know to what amount of risk and respon- sibility he exposes the government by taking the duties in the face of the objection." Only such duties are deemed illegally exacted, in the legal sense of that term, as are paid under a protest which states specifically the ground of objec- tion. * The merchant, in his suit to recover du ties paid under iprotest, is confined to such grounds of objection to the pay- ment thereof as his protest distinctly and specifically sets out ;° and even though defects in the collector's proceedings in the assessment of duties appear in the course of the proof which he offers, they cannot avail the plaintiff, unless he has relied on them in his protest." And it mnst be made, in general, before tlie duties are paid, at least, before the pay- ment is finally adjusted and completed.' A sufficient protest is not, however, the only pre-requisite to a recovery in these cases ; there must be payment [565] and duress. In one instance, nine casks of hardware were shipped to the plaintiffs, as appeared from the invoice and manifest, and a bond given for the duties upon them in the usual way ; but when the ship was discharged ' Curtis B. Fielder, 3 Black, 461 ; Mote v. Barney, 5 Id., 374. , Christ «. Maxwell, 3 Blatchf., 129 ; Upon the requisites of a protest Masou V. Cane, 34 Hunt's Mer. Mag. against excess of duties, and the suf- (June, 1851), 717 ; Brown v. United flciency of protests in particular cases, States, 1 Ct. of 01., 377. see Baxter i). Maxwell, 4 Blatehf., 33 ; ' Thompson ». Maxwell, 3 Blatehf., Lillie i>. Eedfield, Id., 41 ; Ponsot v. 885. Maxwell, Id., 43 ; Boker v. Bronsou, = Curtis V. Fiedler, 3 Blaeh 461. Id., 473. ■* Lawrences. Caswell, 13 How., 488. As to the right to make a prospec- '• Norcross v. Greely, 1 Curt. 0. Ct., tive or continuous protest, covering fu- 114 ; 5 Law- Bep. N. 8., 149. Swan- ture importations involving the same ston ». Morton, 1 Ourt. C. Ct., 394; question, see Brune ». Marriott, Taney, Kriesler v. Morton, Id., 413; Durand, 133 ; Hutton «. Schell, 6 Blatehf., 48. «. Lawrence, 3 Blatehf., 396 ; Ponsot To object to the payment of any B.. Maxwell, 4 Id., 43 ; Brown v. Uni- particular duty or amount of duty, ted States, 1 Of. of CI., 377. and protest in writing against it, is not ° Burgess v. Converse, 3 Curt. 0. sufllcient ; the claimant must set forth Ct., 316. in his protest the grounds upon which ■"Marriott «. Burne, 9 How., 619 ; he objects, distinctly and specifically. Crocker «. Redfleld, 4 Blatehf,, 378 ; 1851, Mason ». Kane, Taney, 173. REVENUE. 355 seven casks only conld be found on board. The consignees paid the duties upon the seven casks, and applied to have the bond canceled vsrithout the payment of duties upon the two missing ones. This was refused ; and they then paid the duties under protest, in order to obtain a cancellation of the bond, and sued to recover back the money paid. It was held that the payment must be regarded as voluntary, and not made under duress, so as to lay a foundation for the action. In this case, no goods were in the hands of the col- lector, or under his authority ; and the money could not be said to have been paid in order to get pos- [566J session of them. It was paid merely to avoid suit on the b ind." In another instance the importers paid the amount they considered due, without a protest, and were allowed by the collector to withdraw the goods; and they afterwards paid the excess which had been demanded by him, accompanying this payment with a protest. It was held that they could not maintain an action to recover back this excess, because their payment was not made to enable them to obtain possession of the goods. The goods were not, when the payment was made, in the possession' of the collector, but had been pre- viously received by the importers. It is not every payment of duties, under protest, upon an illegal action by the col- lector, that will entitle the party paying to recover the same back, in a suit at law against the collector. To entitle a plaintiif to recover back money paid as duties to a collector, he must establish three essential facts : First. That the duties paid were not authorized or payat»le by law. Second. That he, at or before the payment of the duties, made a protest in writing, in which he set forth distinctly and specifically the grounds of objection to the payment of the duties. Third. That the payment was made in order to enable him to obtain possession of the goods upon which the duties were imposed. And if he fails of establishing either one of these three several facts, he must fail of a recovery. If illegal duties are de- manded, and they are paid under protest, still, if the pay- ment is not made to enable the party to obtain his goods, if it is not made by the party " to regain possession of his prop- " MarshaU ». Eedfield, 4 Blatchf., 221. 356 SUByHCTS OF JURISDICTION. erty, which could not be regained except by submitting to the payment," the amount paid cannot be recovered back in a suit against the collector.' And, inasmuch as the action is founded upon the equitable right of the importer to receive back what he ought not to have been required to pay, and the implied duty of the officer, to repay what he has collected without right, the action may be defeated by circum- [567] stances which take away this equitable right and duty. In a case which arose before the act of 1839, but the principles of which appear still applicable, cases of goods were entered by the importer as containing cotton goods. He gave a bond for the duties, and, the goods were delivered to him upon the faith of the bond and of his oath to the invoice, and without examination by the collector. Before the bond fell due, he claimed to have discovered that one of the cases which he previously supposed contained cotton goods, in fact contained siVk goods. He paid the bond under protest, and sued to recover back the duties upon the case in question, alleging that as sillc goods the merchandise was free of duty. It was held that he was not entitled to maintain the action, for the reason that he was chargeable with negligence in the mistake, and by receiving the goods had put it out of the power of the government to test the truth of his claim by an examination. To allow an action under such circumstances, would go far to deprive the government of all certainty and protection in the enforcement of the duty laws. The importer must make his choice at the time of the entry ; whether to rely on his invoice, or to have the contents of his pacjfcages examined." In another case, imported goods were entered for ware- house, under the act of March 28, 1854,' but before they were removed to the warehouse, the importer applied to the col- lector for a permit to land the goods for consumption. The collector, under instructions from the treasury department, ' Drake v. Redfield, 4 Blatchf., 116. tantly, and in consequence of that But it is not necessary, in order to illegality, and without being able to render the payment involuntary, that regain possession of his property, it should be compelled by actual vio- except by submitting to the payment, lenoe, or by any physical duress. It Maxwell «. Griswold, 10 How., 342. suffices, if the payment is caused on " Bend e. Hoyt, 13 Pet., 363. the one part by an illegal demand, ° 10 Btat. at L., 370. and is made on the other part reluc- REVENUE. , 357 charged Mm for half a month's storage of the goods, although they had remained all the time on board of the vessel in which they were imported. In an action to recover back the amount of the storage, against the payment of which the importer had protested, — Held, that the charge was an illegal one, but that the payment of it was voluntary, as the importer might have allowed the goods to go to the warehouse, and have withdrawn them from there ; and that, therefore, the amount could not be recovered back/ The action to recover back duties is not the only [570] right of action which an individual may acquire against a revenue officer. Actions may be maintained, where the facts of the case warrant them, for various wrongs committed under color of the official authority. Thus, if an officer of the customs takes goods from the possession of the owner, and detains them without reasonable cause, he is liable in damages to the full extent of the injury." So, a collector who has demanded from an importer a bond for duties in a greater amount than the law authorizes, and which the im- porter is unable to give, and who detains the goods because the bond is not given, may be liable for the loss or deteriora- tion of the property while thus wrongfully detained.' So, where but one permit to land the baggage of all the passen- gers on one vessel was issued, and the collector exacted from the owner of the vessel fees for one permit for every five pas- sengers, it was held that fees for more than the one permit were illegal, and could be recovered back in an action by such owner against the collector. So, excessive fees or official charges, extorted by a customs officer, not as duties, but as fees of office, &c., may be recovered ; and no written protest against the exaction is necessary.' But, in general, some per- ' Irvin e. Schell, 5 Blatehf., 157. But before one who has paid exces- ' Hall «. Warren, 2 McLean, 333. sive fees or charges exacted under a ^ Tracy v. Swartwout, 10 Pet., 80. collector's decision upon the construe- But the inability of an importer to tion of the. duty laws can sue to re- jfive a bond for the amount demanded cover back the amount paid, he must by the collector, not communicated take an appeal from the collector's to the collector at the time when the decision to the secretary of the treas- bond is demanded, can have no bear- ury. "The decision of the collector of ing upon the liability of the collector customs as to fees, charges, and esac- for refusing to deliver up the goods tions, is final, unless appeal is taken for want of the bond demanded. Ih. to the secretary of the treasury. Shaw * Ogden V. Maxwell, 3 Blatehf., 319. ■». Grinnell 9 Blatehf., 471. 358 SUBJECTS OF JURISDICTION. sonal negligence or wrong, or some violation of positive law must be shown in order to sustain tlie action. Where the law confers a discretion upon the officer, he is not answerable for the consequences of an honest exercise of it. The court will not inquire into the exercise by the collector of the discretion reposed in him, unless in case of collusion or bad faith.' In an action against a collector to recover the value of goods lost while on deposit in a custom- house warehouse,*under the provisions of the act, it should appear that the defendant was guilty of actual personal neg- ligence in regard to the safe-keeping of the goo(Js, and that, in consequence of such negligence, they were lost." And no claim can be made by an importer against a collector, for. de- lay necessary to secure an appraisal of goods, in a case in which it is authorized ; nor for leakage or deterioration consequent upon such necessary delay.' Where the authority of a collector to refuse a clear- [571] ance to a vessel is conditioned upon the existence of probable cause for suspicion, yet if the party interested has the power to remove the suspicions by evidence, a.nd fails to do so, he is not entitled to damages for the refusal of the clearance.* Where, however, the duty of the officer is not discretionary, but presc^bed by positive law, the inquiry is competent, whether the acts of the officer conform to the law ; and if they exceed the authority conferred, he may be liable for compen- satory, though not for vindictive damages to the party in- jured. Even instructions given to a collector by the Secre- tary of the Treasury, if they are not in accordance with the law, do not justify the course of the collector as against third persons, or exonerate him from the payment of adequate damages for an injury resulting from illegal acts. Where a ministerial officer acts in good faith, he is not liable to exem- plary damages for an injury done ; but he can claim no fur- ther exemption where his acts are clearly against the law.' " The Isabella, 1 Paine, 1 ; Gould ». 525. Hammond. 1 McAlL, 235. • Bass- «. Steele, 3 Watih. 0. Ot., ' Brissac v. Lawrence, 3 Blatchf., 381. 121- 'Tracy v. Swartwout, 10 Pet., 80; ' Belcher ». Linn, 34 How., 508, Elliott v. Swartwout, Id., 137. REVENUE. 359 So a collector of customs may be p'ersonally liable for ille- gal acts of his deputies ; upon the general principles of the law of principal and agent." ' Ogden V. Maxwell, 3 Blatchf., 319. dinates in respect of goods of which he But a collector is not personally respon- does not have charge. Brissac ». Law- sible for the negligence of his subor- rence, 3 Id., 121. I CHAPTER XII. SALVAGE. # The American cases define " salvage" to be an allowance for saving a ship or goods from tlie danger of the seas, from fire, pirates, or enemies ; ' "salvage service " to be such as is rendered in the rescue or relief of property at sea in imminent peril of loss or deterioration ; ' and a " salvor " to be one who, without any particular relation to a vessel in distress, proffers useful service, and gives it as a volunteer adventurer, without any pre-existing duty of employing himself for the preser- vation of the vessel.' These definitions indicate the subject as eminently one of admiralty cognizance." Whether salvage is due, and if due, how much, are questions on which there can be no doubt of the jurisdiction of a courb of admiralty ; nor of its authority to proceed in rem and attach the property detained. The ad- miralty is the only court where such a question can be tried.' This being so, it follows that the subject belongs, in this coun- try, to the courts of the United States. We have already indicated, in a previous chapter upon Admiralty, the general ' Weeks v. The Catherine Maria, 3 tary exertions of those who are under Pet. Adm., 434; Lea v. The Alexan- no legal obligation to render assistance, der, 3 Paine, 466. and the consequent ultimate safety of * The H. B. Foster, Abb. Adm., 333, the property from such peril, consti- 328. tute a case of salvage ; and where the ' The Wave ». Hyer, 3 Paine, 131 ; compensation is not fixed by such a reversing 8. C, aub nam. The Wave, contract as a court of admiralty will 1 Blatel^. & H., 235, and 7 N. Z. Leg. enforce, it will be determined by the Obi., 97. One of colliding vessels can- liberal rules which form a part of the not be a salvor of the other. The maritime law. Adams ». The Island Clarita, 23 Wall., 1. City, 1 Cliff., 310. ' The relief of property from an im- ' Houseman v. The North Carolina, pending peril of the sea, by the volun- 15 Pet., 40, [860] SALVAGE. 361 grounds wMch have led to the recognition of this jurisdiction in an enlarged extent. It has been distinctly held that the establishment of the admiralty jurisdiction upon the lakes and navigable rivers necessarily carried all its in- [573] cidents, including jurisdiction of salvage service.' The jurisdiction of admiralty is not defeated by the fact that, from the nature of the case, the acts which lie at the foundation of the judicial inquiry may have been partly per- formed upon the land. Cases often arise in admiralty, where the acts and services done are of a mixed nature. "Where salvage services are performed partly on tide waters, and partly on the shore, for the preservation of the property saved, the admiralty jurisdiction has been constantly exer- cised to the extent of decreeing salvage. This has been done, not only in conformity to the doctrines of the maritime law, but also to what has been held in the English courts of common law. For it has been laid down, that if the libel is founded upon one single continued act, which was prin- cipally upon the sea, though a part was upon land, — as if the mast of a ship be taken upon the sea, though it be after- wards brought on shore, — no prohibition would lie." Sect. 150. The property subject to salvage. — The general prin- ciple appears to be, that salvage may be allowed upon any description of property found in peril at sea, which may be the subject of proceedings in rem " in admiralty, looking to a sale of the property as a means of paying the amount awarded. It is not confined to services rendered to vessels ; rescuing a raft of timber, found adrift in harbor, and floating out to sea unaccompanied, is in its nature a maritime salvage service, for which salvage compensation may be awarded.* ' "Williams ». The Jenny Lind, Newb., Tome v. Cribs of Lumber, Taney, 443. 533. " United States v. Coombs, 12 Pet., A steamboat having been disman- 73. tied and stripped of her boiler, engine, ' We do not mean to be understood and paddle-wheels, was fitted up as a that the proceedings are necessarily to saloon and hotel, and for some months be in rem. The admiralty courts used as such. While being towed to have power to proceed in personam, in another locality, there to be used for cases of salvage, as well as in rem. a similar purpose, she got aground and Brevoor ». The Fair American, 1 Pet. it became necessary to lighten her by Adm., 87 ; Eules of Practice in Ad- pumping. To that end the services miralty, No. 19, ante, 151. of a steam propeller were engaged. ■* A Raft of Spars, Abb. Adm,., 485. Afterwards, the owner of the propeller And see Tome v. Dubois, 6 Wail., 548 ; filed a libel against the hulk to recover 362 SUSyECTS OF JURISDICTION. No important distinctions are drawn in awarding salvage, be- tween the vessel and the cargo saved, or between different portions of the cargo, in view of one being more easily rescued than another. Tlie uniform rule is to consider the service performed in rescuing the vessel and cargo, as one gen- [574] eral salvage service, to be compensated by awarding a certain qioantum of the proceeds of the whole/ But salvage has been refused for rescuing written instruments, such as a bill of exchange, or an evidence of debt or of title ; the reason assigned being that although the service may be meritorious and valuable, yet a court of admiralty, being limited, in proceedings for salvage, to a remedy by sale of the property, has no means of -enforcing payment in a case where the thing saved is documentary evidence merely.'' So, how- ever highly the service may be appreciated, salvage is not awarded for saving life ; yet, notwithstanding this, when sal- vage services result in the saving of both property and life, the intention and efforts of the salvors in saving life will war- rant the court in making a more liberal allowance for the property saved than would otherwise be done.' Sect. 151. The peril. — At the foundation of the idea of salvage lies the fact of "peril;" the property must be, at the time, in circumstances of danger beyond the ordinary expos- ures of navigation ; it must be involved in liability to loss and destruction, and in need of extraordinary assistance to rescue it. But it is not necessary that the distress should be actual or immediate, or that the danger should be imminent and absolute ; if, at the time the assistance is rendered, the ship has encountered any damage or misfortune which might possibly expose her to destruction if the services were not rendered, this is sufficient.* The facts that the peril was slight, and the duration of the service rendered was brief, compensation for such pumping as a The Cheeseman «. Two Ferry Boats, 3 salvage service. Held, that the hulk Bond, 363 ; Seven Coal Barges, 3 was not at the time engaged in com- Bws., 397. merce and navigation so as to be lia- ' Montgomery e. The T. P. Leath- hXe in rem in admiralty, and that the ers, Ne^uh., 431. libel must be dismissed without costs " The Emblem, Daneis, 61. for want of jurisdiction. The Hen- ° The Emblem, Daveis, 61 ; The drlck Hudson, 3 Ben., 419. Mulhouse, 13 Law Rep. HT. 8., 376. A steam ferry-boat, or a barge, ■* Winso ®. The Cornelius Grinnell, adrift on the Ohio river, and in peril, 16 Law Bep. iV. 8., 677; The Baragos- is a propel* subject of salvage service, sa, 1 Ben., 551. SALVAGE. 363 while they may diminish the amount to be allowed, do not prevent the case from being considered a case for salvage compensation.' Nor is it necessary that a vessel, whether sailing or steam, should be unnavigable, or that a steam vessel should be injured, not merely in her machinery but in her hull or her sails also. Where a vessel has not received any injury or damage, and is in the same condition she would ordinarily be in without having encountered any damage or accident, a service rendered to her is not a salvage service. But a steam vessel which has lost the use of her steam machinery by an accident, is not in the same condition she would ordinarily be in, although she is sound in hull and masts, and has the use of her sails ; and a service rendered to her under such circumstances, by towing her, is not a mere towage service, but is a salvage service." Sect. 152. What property is "derelict." — The term derelict is applied to maritime property entirely deserted or abandoned, under the compulsion of some extreme peril. The results of such an abandonment are important to be considered in two aspects. First. Such an abandonment does not wholly [575] divest the owner of his property. This is the result of a voluntary abandonment by the owner -tvith his free consent ; but not of a relinquishment as force, necessity, or danger com- pels. Thus, a vessel wrecked, or goods thrown overboard to lighten a ship, are recoverable on payment or tender of salvage. Although little prospect of recovering goods thrown overboard to lighten a vessel* could exist, yet the right of recovery is not necessarily lost ; but on proof of property, the goods are recoverable, on payment or tender of salvage, if either driven ' Coffin t. The John Shaw, 1 Cliff., compensation, as indicating the ex- 230. tent of the risk, did not take the case '' The Saragossa, 1 Ben., 551. out of the rules applicable to cases of Upon a claim for salvage filed in salvage. Holmes v. The Joseph C. behalf of a steamboat for saving a Griggs, 1 Ben., 81. sloop, -which had been abandoned, , And where well founded reasons ex- but to which the crew were returning isted for believing that a neutral ves- at the time of her rescue from a peril- sel was in imminent hazard of being ous position, it was held that the tes- condemned in the courts of a belliger- timony of the crew of the sloop, and ent by whom she was captured, it was others, to the effect that, in their opih- , held that the recaptors were entitled ion, the vessel would have been saved to salvage. Talbot «. Seeman, 1 by her crew if the steamboat had not Cranch. 1, 43; Murray «. The Charm- gone to her aid, although to be taken ing Betsy, 2 Id., 64, 121. into account in fixing the amount of 364 SUBJECTS OF JURISDICTION. on shore, or taken afloat." Second. The fact of the property being found derelict, materially strengthens, in most cases, the claim of the salvor to the favorable consideration of the court in determining the amount to be awarded him. In determining whether, under the circumstances of a par- ticular case, a vessel is to be deemed derelict, it must appear that she was absolutely abandoned by those in charge of her." If she was not abandoned finally, she is not to be deemed - derelict. It is, however, immaterial, if a final abandonment is shown, whether the desertion arose from accident or neces- sity, or was voluntary." In one instance, a steamboat, while proceeding to her destination, was so injured by a collision with a schooner, sailing in an opposite direction, as to be deemed in immediate danger of sinking ; and, under that ap- prehension, was left by all on board. The passengers and part of the crew went on board the schooner, but the master, with other ofiicers and the residue of the crew, remained in small boats about the wreck, employed in saving articles found floating ; and after a brief interval, judging it safe so to do, again went on board for the purpose of saving, and did save baggage of pass,engers, money, and other property to a large amount. It was held that the steamboat, under these circumstances, and at the time when the alleged services of the libelants were performed, was not derelict.* In a very parallel case, where a steamboat on the Mississippi, [576] being on fire, was surrendered by her master and crew to the master and crew of the sailing vessel, under the conviction that nothing could be effectually done for her safety without the aid of the latter vessel, a similar decision was made.' But where the master and crew left their vessel in a sinking condition, and took to the long-boat, and were picked up by another vessel while yet in sight of the wreck, the vessel and cargo thus left were considered as derelict." And ' Warder®. La Belle Creole, 1 Pet. 'Evans «. The Charles, 1 Newh., Adm., 31. 339; Montgomery ». The T. P. Leath- " Tysons. Pryor, 1 Qall., 133; Eowe crs, Id., 431, 435. 11. The Brig , 1 Mas., 873; Evans * Mesner «. The Suffolk Bank, 1 Law V. The Charles, 1 Newb., 339; Mont- Bep., 349. gomery ii. The T. P. Leathers, Id., ' Montgomery «. The T. P. Leathers, 431, 435; Mesner ». Suffolk Bank, 1 Newh., 431. And see Emerson «. The Law Bep., 349. The Attacapas, 8 Pandora, Id., 438. Ware, 65. " The Boston, 1 Svmn., 338. SALVAGE. 865 a vessel may be held derelict where the master, and all others on board, had deserted her in peril, notwithstanding the master had expressed an intention of endeavoring to send re- lief." The fact that human beings continue on board, seems not to prevent the conclusion that the property is derelict, if they are not persons legally considered as continuing in the responsible charge of the property. For a vessel with slaves on board, but without any white person, has been held derelict." But where a part of the crew of a vessel at sea were dead, and all the rest physically and mentally incapable of providing for their own safety, this was said to be not what is known as " derelict," but ^^ quasi derelict." ° Sect. 153. Who may be salvors. — The general object of the rules upon this subject is, to promote the exercise of courage and enterprise in the rendering of voluntary services required under circumstances of unusual peril. Hence, the law looks largely to the acts of the individual claimant, whether volun- tary, or required by some duty, — to the motives which inspire it, whether they involve the courageous desire to save the property, stimulated, it may be, by a hope of reward, or a mere expectation of earning wages from an employer, — and to other considerations of like character.* A fundamental rule is, that the services must be voluntary ; salvage is not awarded for services which do not transcend such duty as the indi- vidual may have owed in respect to the property in ques- ' The Laura, 14 Wall., 336. compensated for wTiat they have al- A bark is ndt derelict when found ready done, or without such immedi- by another vessel during the absence ate compensation, if their lien is not of a steamer which had previously had endangered. Finders, on the other her in tow and anchored and left her hand, take possession primarily, by for a necessary purpose, with an inten- right of discovery, and cannot be dis- tion to return, and afterwards carry- possessed afterwards by the owner or ing such intention into effect. Crom- master. Again, finders being in pos- well v. The Island City, 1 Cliff., session under no contract, may aban- 231. don their enterprise if their exertions '' Flinn b. The Leander, Bee's Adm., have not diminished the chances of 360. ultimate safety; and this, without ' Sturtevant v. The George Nicho- waiting for any such danger to life, or laus, INewl., 449, 453. apparent hopelessness of the enterprise, ■* Salvors, strictly so called, are per- as would alone justify salvors in aban- sons who undertake to save property donment. The Ida L. Howard, 1 in peril, at the request of the owners Low., 3. or of the master. They are under the A person whose oxen are used in a direction and control of the master, salvage service, does not thereby be- and may be discharged by him, with come a salvor. The Ottawa, 1 Low., or without good cause, upon being 374. 366 SUBJECTS OF JURISDICTION. tion. Thus, under ordinary circumstances, seamen are not allowed to claim compensation as salvors for services rendered in the performance of their duties, whatever may have been the perils, hardships, or gallantry of their services in saving the ship or cargo.' But they are not absolutely dis- [577] qualified from claiming as salvors, for extraordinary services in cases highly perilous," or where their con- tract has been dissolved.' , The American cases indicate a two-fold rule upon this point. When a seaman, after hav- ing been discharged from the obligations of his contract, ren- ders valuable service in saving the vessel from danger, he is treated as a stranger, with the same rights as a volunteer. And where a seaman, in time of great peril, performs services, in a spirit of gallantry, utterly above the fair requirements of ' his contract, although this may be still subsisting and in force, remuneration for the extra services may be allowed, upon salvage principles, though it seems not to be spoken of as salvage, in the full sense of the term.* Similar principles govern the allowance of salvage for pilots." A pilot, while acting within the strict line of his ' Hobart i). Drogan, 10 Pet., 108, Ct., 141 ; Bulaney v. The Peragio, 121; The Holder Borden, 1 Sprague, Bee's Adm., 212; The Charles Henry, 144; Miller ». Kelly, Abb. Adm., Sei. 1 Ben.,S; The Merrimac, Id., SOI; Seamen can be salvors only when Mesner v. Suffolk Bank, 1 Law Rep., their connection with the ship has 249; McGinnis ®. The Pontiac, 1 been entirely broken up. The Ante- Newb.,V6<); 5 MeLean, 359; Bonds, lope, 1 Low., 130; The Olive Branch, The Cora, 3 Wash. C. Ct., 80; afflrm- Id., 286. ing 3 Pet. Adm., 361. * The Two Catherines, 2 Mas., 819, Where a steamer, stranded, employs 338. another and smaller one to a«sist in * For illustrations as to the allow • getting her off, but herself supplies a ance of salvage on the ground that the part of the necessary motive power, contract of shipment was dissolved, — and directs the movements, the see Mason v. The Blaireau, 2 Craneh, smaller one does not run the risk of 240; The Triumph, 1 Sprague, 428; salvage service. The Virginia, 3 £ws., 11 Law Bep. N. A, 612; The John 49. Perkins, Id., 87; reversing 9 /A, 490; A master of a vessel has no right to The Harvest, 1 Sprague, 537; The compel a mate to perform salvage ser- Olive Branch, 1 Low., 286. vice, and if he does perform one by * The John Taylor, JVewb., 341 ; The the order of the master without objec- John Perkins, 9 Law Bep. iV. S., 490; tion, he is nevertheless to be eonsid- reversed on other grounds, 11 /tZ., 87; ered as a volunteer. Williamson v. The Dawn, Bavies, 121,142; 4 Law The Alphonso, 1 Ourt.-G. Ct., 376. Sep., 106. ° When a vessel is in such peril as In what cases persons connected to be the subject of a salvage service, with the vessel, — the master; the a pilot, by the general law, is not crew; the ship's physician; her pas- bound to give his aid for mere pilot- senger3,^may be entitled to salvage, age. The Susan, 1 Sprague, 499; 13 —see Phillips v. McCall, 4 Wash. 0. Law Bep. K S., 531. SALVAGE. 307 duty, however he .may entitle himself to extraordinary pilot- age com]3ensation for extraordinary services, as contradistin- guished from ordinary pilotage for ordinary services, cannot be entitled to claim salvage. In this respect he is not distin- guished from any other officer, public or private, acting within the appropriate sphere of his duty. But a pilot, as such, is not disabled, in virtue of his office, from being a sal- vor. On the contrary, whenever he performs salvage services beyond the line of his appropriate duties, or under circum- stances to which those duties do not justly attach, he stands - in the same relation to the property as any other sal- vor ; that is, he is entitled to compensation to the ex- [578] tent of the merit of his services, viewed in the light of a liberal public policy. The duty of a pilot is, properly to navigate the ship over and through his pilotage limits ; or, as it is commonly called, his pilotage ground. It is not within the. scope of the positive duties of a pilot to go to the rescue of a wrecked vessel, and employ himself in saving her or her cargo, when she is wholly unnavigable. That is a duty entirely distinct in its nature, and no more belonging to a pilot than it would be to supply such a vessel with masts or sails, or to employ lighters to discharge her cargo in order to float her. It is properly a salvage service ; involving duties and responsibilities for which his employment may peculiarly fit him ; but yet in no sense included in the duty of naviga- ting the ship.' Whenever, therefore, a vessel in the cliarge of her officers is exposed to imminent peril on the high seas, and is relieved therefrom by others, it presents a case for salvage, even though the service has been rendered by pilots ; and to entitle a pilot ia such case to salvage, it is not essen- tial that there should have been risk of life, an expenditure of money, or the application of any extraordinary means. The case may be exclusively one of skill.' ' Hobart ». Drogan, IQ Pet., 108; sel has been begun; and the senr- Hand i>. The Elvira, Qilp., 60. ice, without regard to the place where " Lea ®. The Alexander, 3 Puine, 466. it is rendered, will determine, whether Pilots may become salvors when they a pilot is, or is not, a salvor. lb. render services not in the line'of their Thus, where a pilot towed ihto duty, by which' a vessel is relieved port a vessel which had lost her rud- from danger threatening shipwreck, der, the question whether he was en- They may be salvors even after the titled to claim salvage or not, was relation of pilot to a particular ves- held to depend on the question w hether 368 SUSyECTS OF JURISDICTION. But before pilots can be permitted to become salvors, pub- lic policy requires that they should first be held strictly to a discharge of their duty as pilots.' That which a pilot does in the ordinary course of his duty, cannot be made the founda- tion of a claim for salvage. He cannot be at the same time, and in the same act, a pilot and a salvor ; but he may become the latter, for services rendered beyond the limits of his [579] official duties as the former.' And where the service performed is required by law as a duty, it cannot be set up as a salvage service. ° Moreover, pilots or engineers of steamboats, belonging to the ship' s company, are not included within the exception to the rule, by which pilots, in the usual mode of navigation, have, in some instances, been ad- mitted as salvors. In emergencies, they are holden to the same exertions for the preservation of life and property as common seamen.' A public officer is deemed compensated by the lawful emoluments of his ofiice, for all services in the line of his or- dinary ofiicial duty, which may tend to the preservation of property in peril. Biit where he renders extraordinary assist- ance, not required by his official duty, he is not disqualified from claiming salvage." The ofiicers and crews of public vessels are entitled to sal- vage for extraordinary personal services ; though it is con- sidered that the amount of compensation should be less than that allowed to private persons for the same service.' the loss of her rudder rendered the S. C, sub nom. The Wave, 1 Blatckf. ship uana-vigable. Hope «. The Dido, & H., 335; 7 2f. Y. Leg. Ote., 97. 3 Paine, 343. The contract of a pilot See to the contrary, Lea v. Alexander, ■with the boat on which he is employed, 3 Paine, 466. is virtually dissolved when the boat, * Mesner v. Suffolk Bank, 1 Law being on Are, is surrendered by the Sep., 349. master to another boat to save her. ' Case of Le Tigre, 3 Wash. 0. Ct., After such surrender the pilot may 567 ; The Leviathan, 13 Op. Att. Gen., become a salvor. Montgomery v. The 389. T. P. Leathers, 1 Mwb., 431. » The Mulhouse, 13 Law Rep. K S., ' Hope V. The Dido, 3 Paine, 343; 376. Lea V. The Alexander, Id., 466. Where the officers and crew of d, ' Hand ». The Elniira, Oilp., 60. vessel of war belonging to the United ^ Therefore, where the laws of New States government, rendered, — under York (adopted by Congress), made it the direction of her commander, and a part of the official duty of pilots to in obedience to the general instruc- assist vessels in distress, it was held tions of the government to &\\ its ves- that they were not entitled to salvage sels to render relief freely and for rendering such assistance. The promptly to American vessels in dis- Wavo ». Hyer, 3 Paine, 131; reversing tress, — services in towing .into an SALVAGE. 369 The foregoing cases contrast the elements of voluntary service and performance of duty. There is another class which distinguish bet\yeen services rendered from a spirit of individual enterprise, stimulated by the hope of reward, and those rendered to earn wages. The object of the law of sal- vage is, to afford inducements for the exercise of per- sonal courage, energy, and skill, appropriate to the [580] various circumstances of peril, to which maritime pro- perty is peculiarly exposed. And the general principle is, that so far as the compensation is heightened by the consid- eration of these elements, it must be awarded, if at all, in such a manner as to reach the individuals by whom the services were rendered." This principle is best illustrated by a consideration of the cases that have recently arisen upon the claims of corporations to receive salvage compensation. Within a few years past, incorporated companies have been formed, under the laws of several of the States, for the purpose of maintaining vessels, suitably manned and equipped, to be employed in saving ves- sels in distress. Thus, the New York act of April 23, 1864," authorizes corporations to be formed, sulaject to the general manufacturing companies' act of that State, "for the purpose of constructing, owning, and using vessels and machines to be employed for hire in towing vessels, carrying freight and passengers, and in aiding, protecting, and saving vessels and their cargoes, wrecked or in distress, on any of the navi- gable rivers and lakes in or bordering upon the State of New York, or on the high seas, or in the various arms of the seas and rivers running into the same, with all the rights apper- taining by law to private individuals performing service as salvors." The early decisions of the District and Circuit Courts within American port an American merchant vessel of war are entitled to salvage, vessel found abandoned at sea five in the same cases as those of other ves- hundred miles distant, but the delay sels. Robson v. The Huntress, 3 WaU. thus caused was one of two days Jr. G. Ot., 59. only, and no extraordinary service ' Thus, if apprentices are salvors, was rendered, and no unusual hard- their masters are not entitled to their ship or peril was encountered, it was share of the salvage, but it is to be held that the oflScers and crew were paid to the apprentices for their per- not entitled to salvage. The Josephine, sonal benefit. Mason ». The Blaireau, a Blatchf., 333. 3 Granch, 340. The officers and crew of a foreign ' K 7. LawiofiSU, 783, eh. 337. Vol. I.— 34 370 SUBJECTS OB yURISDICTION. New York, were adverse to the claims of such corporations to a proper salvage compensation. While allowing their right to recover a compensation for work and labor, any en- hanced reward in the nature of salvage was refused.' In the district court for Massachusetts, the more liberal rule of allowing corporations to claim as salvors, was recog- \nized ; and in this connection may be mentioned the case of the Coringa, decided in that court.^ In this case a vessel lost her rudder-head, off Cape Cod, and anchored in an exposed place. She was finally towed to Boston by the Charles Pearson, a steamer owned in whole, or in part, by insurance companies of Boston, and which was known as the underwriters' boat. It appeared in evidence that the officers and crew of the Pearson were hired by the month, and their contract was understood to require them to perform duty in saving vessels without further or other com- pensation. It also appeared that the steamer usually made a special contract in such case for paymeiit by the day, or hour, or the job ; and that when this was not done her services were usually settled for upon similar principles. No special con- tract was made by the master of the Coringa, but he testified that he knew he was dealing with the underwriters' boat, and he inferred that salvage could not be demanded. The service performed in this case was rendered under such circumstances that it was one of salvage, unless the facts above set forth took away this character from it. Judge Lowell held that it did not, and that the libellants were entitled to recover sal- vage. He said, "So far as these respondents are concerned, their officers and men must be considered to be volunteers ; they were under no contract or duty toward the respondents, and their rights among themselves must be settled independ- ently. I do not consider that this fact, nor the fact [585] that the managers of the Pearson usually made a bar- gain for her use, nor both together, constitute such a holding out to the world as should require me to insist that they undertake salvage services for towage wages." This question has now-been settled in favor of the position ' The Morning Star, 6 Blatchf,, 154; Union Tow-boat Co. ». The Delphos, The J. F. Farlan, 3 Ben., 306 ; The Neijob., 413. Stratton Audley, Id., 341. See also, ' Cited in 3 Pars, on Ship. & Adm., 896, note 1. SALVAGE. 371 of wrecker corporations, by the decision of the Supreme Court in the case of the Camanche." That case holds that in- asm uch as remuneration for salvage service is awarded to the owners of vessels, not because they are present or supposed to be present when the service is rendered, but on account of the danger to which the service exposes their property, and the risk which they run of loss in suffering their vessels to engage in such perilous undertakings, the rule allowing salvage compensation is applicable in favor of corporations owning vessels engaged in salvage service, as well as in favor of individuals. Sect. 154. Co-operating and rival salvors .-^Questions of diffi- culty sometimes arise between independent parties of salvors who compete with each other in rendering service to a vessel in distress, in regard to their respective rights, as compared with each other in the salvage compensation. The ordinary cases are, — where one party of salvors have abandoned the attempt, and a second party undertake and complete the service'; where two parties co-operate in the service bymu- ' 8 TraZZ.,448. And in The Biidie, 7 BlatcliA, 238, services rendered by a steam tug, owned lay a corporation engaged in the wrecking business, in rescuing a vessel in distress, were held to be a salvage service, in respect to the in- terest of the corporation, and salvage com pensation was awarded to the cor- pordtion, in that respect, in a suit brought by it alone against the vessel, in admiralty. The same doctrine was applied in The Blackw^U, 10 Wall, 1. The facts in this case were that while a vessel was lying at anchor in port, she took fire, and was burning, when a I tug, which was the property of a cor- poration, got up steam, and went to her relief. The tug carried engines belonging to the local fire department, and firemen, who, together with the master and ciew of the tug, succeeded in extinguishing the fire. The cor- poration and the master of the tug filed a libel against the vessel and car- go for salvage. The supreme court held, 1, that the assistance rendered in extinguishing the fire was a salvage service. Useful services of any kind rendered to a vessel or her cargo, exposed to any impending danger, including assis- tance in extinguishing a fire, or the towing a vessel from a position where she is in imminent danger of taking fire, are services which entitle those who render them to salvage. 3. That the claim of the owners of the tug to salvage was not defeated by the fact that the members of the fire department rendered assistance. Success in the service rendered is one of the essential elements to a claim for salvage ; but there may be more than one set of salvors whose labors con- tribute to the successful result. In such cases, all who share in the service, and materially contribute to the sav- ing, are entitled to share in the award. 3. That the ownership of the tug being in a corporation did not defeat the owners' claim for salvage. A cor- poration may recover salvage in virtue of the services of a vessel owned and employed by the corporation, if she is well manned and equipped for such service. 572 SUBJECTS OF JURISDICTION. tual consent ; and where a party first in possession, and still prosecuting their undertaking, are interfered with by new- comers, who take the property in peril out of their hands, and complete the service independently. The rule applicable to the first class of cases, — that of an undertaking abandoned, — is, that success in the salvage is one condition of the reward, and the compensation belongs wholly to the successful party. Parties who find a vessel derelict at sea, and carry her into port, are entitled to the usual salvage, without regard to meritorious but unsuccessful efforts previously made to res- cue her by other parties. But to warrant the application of this rule, the first salvors must have finally abandoned the undertaking.' The rule applicable to the second class of cases, — ^that of mutual co-operation, — divides the salvage between the co- operating parties, in proportion to their respective deserts under the circumstances of the case.' When the property is actually saved, and more than one set of salvors have con- tributed to the result, all who have engaged in the enterprise and have materially contributed to the saving of the pro- perty, are entitled to share in the reward which the law ' The Island City, 1 Black, 131. Where a ship, disabled at sea, was partially aided by one vessel, further assisted by another, and then left, with nobody on board, at anchor, but still in peril, while better means of rescue were sought for, and in that condition was discovered by a third vessel, which brought her into port, it was held, that this was a case in which all three nf the vessels were entitled to share in the salvage awarded. = Norris V. The Island City, 1 Cliff 219. All persons who give personal ser- vice in saving the property, are salvors, and the ship, cargo, freight, &c., saved, constitute one fund or subject of salvage. The Ottawa, 1 Low., 374. A. discovered a wreck, and with two others, whom he procured, took active and successful measures towards saving the spars, tackle, and rigging, and several other persons afterwards exerted themselves in the same ser- vice, and these others, on the next day, went on board the disabled ves- sel, or on board the vessel which had come to her assistance, and did what- ever was found necessary, the vessel being actually saved by a steamer. Held, that A., who remained on shore the second day, could not be decreed a salvor of the tackle, spars, and rigging only, but was entitled to come in with the others against the common fund, he bringing into the fund the value of the Bpars, &c., which had been set apart for his benefit. lb. Where five distinct sets of salvors took part in stripping and unloading a stranded vessel, they have not sepa- rate liens on the several articles saved by each set, but all are entitled to be paid out of all the property saved. The Albion Lincoln, 1 iow., 71. Where three sets of salvors at dif- ferent times rendered services to a vessel during a continuous peril, each set will be entitled to a compensation, although the separate services of either would not have saved the ves- sel in distress. Adams ». The Island City, 1 Qliff., 210. SALVAGi:. 373 allows for sucli meritorious service ; and in proportion to the nature, duration, risk, and value of the service rendered. Thus, if salvors, in effecting a salvage service, themselves fall into distress, and are relieved by other salvors, they do not lose their original right to salvage, but the second salvors can only partake of the salvage in proportion to their merit.' And the salvors cannot lawfully make it a con- [586] dition of giving assistance that the original salvors shall abandon all claims to salvage." The rule applicable to the third class of cases, — that of in- terference, — regards the party first in possession as rightfully entitled to complete their work, and the second party as wrong-doers, and not entitled to any share in th.e compensa- tion. Persons who have taken possession of a vessel to save her, and are prosecuting the undertaking with, vigor and ade- quate means, have a right, as against third persons, to retain the possession ; and they will be treated and compensated as the true salvors, notwithstanding they are wrongfully inter- rupted by others, who complete the service.' Where a vessel found derelict has been taken possession of by a set of salvors, a second set have no right to interfere with them, and become participators in the salvage, unless it appear that the first would have been unable to effect the purpose without the aid of the others. * But the rule which protects the right of the first comers, is not to be carried so far as to defeat the safety of the prop- erty. Persons who take possession of property found derelict on the high seas, for the purpose of saving it, and thereby entitling themselves to salvage, are bound in good faith to consult the interest of the owners, as well as their own, and to use all reasonable and available means to insure the safety of the property. If they have adequate force and means to rescue it under the apparent circumstances of the oase, they may reject the assistance of those who come after them and offer to co-operate in the service ; but if they have not, it is their duty to accept, and even to solicit aid, if it can be obtained.' ' The Henry Ewbank 1 Sumh., 400. Jff. 8., 546. = The Henry Ewbank,.! Sumn., 400. ' Hand ». The Elvira, Qilp., 60, 67. ^ The John Gilpin, Ole., 77. Com- ' The Amethyst, Daveis, 20; 3 iV. T. pare A Quantity of Iron, 14 fjaiD Sep. Leg. Obs., 313. 374 SUBJECTS OF JURISDICTION. Sect. 155. Nature and sufficiency of salvage service. — When a vessel is still in charge of her master and crew, but is in cir- cumstances of peril, those who were originally in charge of her are not divested of their right of control ; nor are persons proposing to render salvage service entitled to compel their assistance to be received. The general rule is, that salvors cannot force themselves upon a vessel in distress [587] against the will of the master, but it is at his option to accept their services or not.' It seems not impossible that exceptional cases might occur in which the unwillingness of the master to accept salvage service might be shown to be wholly unreasonable, and to spring from an incapacity for his post which ought to be regarded as an element gravely in- creasing the peril of the vessel and the merit of the salvage service, instead of as a reason why the salvors should be denied their reward. But the rule applicable in ordinary cases, where there is no reason for withholding that confidence which the law usually reposes in the master's judgment, calls for the consent of the master. Usually, there is not merely a consent, but a request for assistance, manifested by signals. If, under the circumstances, the signal may fairly be con- strued as a signal ?or assistance, and assistance is rendered in pursuance of it, such service is one of salvage." Another indispensable ingredient of a salvage claim is, that the service must have contributed immediately to the rescue or preservation of property in peril at sea. The claim- ant is not required to make it certain that the property was saved by his assistance ; but it must appear reasonably j)rob- able that his labor or skill contributed to its protection.' ' The Susan, 1 Syrague, 499 ; 13 of the weather ; if she was encounter- Law Rep. N. S., 531. ing a threatened or impending peril ' The James T. Abbott, 2 Sprague, from which she was rescued by the 101. tugs; then they, are entitled to be Although the signal set by a vessel compensated as for a salvage. For was not a signal of distress, but a sig- where a ship or its lading is saved nal for a tow, and tugboats started from an impending peril by the service for the vessel with the view to render of any person upon whom there is no a towage service merely; yet if the obligation to render the service, then ship, when the tugs came to her assist- such service is to be compensated as ance, was, in point of fact, in a con- a salvage. Philips v. The United dition where loss or serious damage States, 33 Hunt's Mer. Mag. (Oct., was reasonably to be apprehended ltJ55), 456. from her leaky condition, taken in "The John Wurts, Oh., 463; The counection with the boisterdus state Whitaker, 1 Sprague, 383; S. C, sub SALVAGE. 375 Generally, it should appear tliat the claimant had actual possession, continuously, of the property in peril; with power to save it, and he must show the actual employment of means to that end.' Salvage cannot be allowed upon attempts at res(5ue which are unsuccessful, though they are highly merit- orious." Sect. 156. Forfeiture of salvage. — ^The principles upon which salvage is awarded require complete diligence and good faith in preserving the property for the benefit of its owners. The right presupposes good faith, meritorious service, complete restoration, and incorruptible vigilance, so far as the property is within the reach or under the control of the salvors. Con- duct on the part of a salvor inconsistent with these obliga- tions, may be shown in defense of his proceeding for compen- sation ; and may be regarded by the court either as ground for reducing the amount to be awarded, or for rejecting the claim altogether, as the justice of the case may require.' Thus, salvors are required to exercise the same degree of dil- igence in keeping the property placed in their custody, as a prudent man ordinarily exercises in keeping his own. Neg- ligence in taking care of the property saved, either diminishes the amount, or works a total forfeiture of the salvage, accord- ing as it is slight or gross.* The rule is still more emphatic and strict in the case of a willful embezzlement. One who has rendered or taken part in salvage service, and who afterwards embezzles or conceals from its owner, any part of the saved property, thereby forfeits any right to salvage. ° The rule nom. Parker v. The Whitaker, 8 Lam The S. "W. Downs, 1 Newb., 458. Bep. N. S., 497; Montgomery ®. The . When towing may be,a salvage serv T. P. Leathers, Mewl., 4al; Emerson ice, — seeTheH.B. Foster, jiM. ^cZm., v. The Pandora, Id., 438. 233; 6 N. T. Leg. Obs., 333; Sturgis ' Clarke «. The Healy, 4 Wash. C. v. The Joseph Johnson, 19 How. Pr., Ot., 651. 339. For many decisions upon the "" ' Brooks V. The William Penn, 1 nature and sufflciency of salvage ser- Am. Law Beg., 584. vice, and when salvage may be allowed, But a party who, in view of the —see AhhotVa Nat. Dig., title Salvage. danger with which his boat is threat- ' Peisch «. Ware, 4 Granch, 347 ; ened by the approach of a steamboat American Ins. Co, v. Johnson, Blatchf. on fire, calls for the assistance of an- <6 E., 9 ; The Sumner's Apparel, other steamboat to remove his prop- Brown, Adni., 53; The Senator, Id.^ erty from its perilous situation, will 373. not be allowed to plead exemption * The Mulhouse, 13 Law Bep. N. S., from liability to pay for the services 376. demanded, upon the ground that his ° Mason i). The Blaireau, 3 Cranch, property would have been safe, if left 340; The Bello Corrunes, 6 Wheat., in its original position. Stevens v, 153. And see The Dove, 1 Gall., 585 376 SUBJECTS OF JURISDICTION. that «mbezzlement forfeits salvage, applies, whether the offense is committed before or after the property has been brought to port, and delivered to legal custody.' And the operation of this rule does not depend on the amount or value of the property embezzled ; the law visits any embezzle- ment, though small, with an entire forfeiture of all salvage." But an embezzlement, which is secret, and purely the act of an individual, will not prejudice co-salvors, who are in- [589] nocent and ignorant of it ; but all are affected who consent to, connive at, or conceal it — who encourage it, or fail to prevent it when they can.' Salvors must take rea- sonable care to prevent plunder by others. Slight neglect in this particular will be considered in the award, and gross neg- lect will work absolute forfeiture.' Sect. 157. What amount may be awarded. — It is implied in what has already been said, that the general principle of sal- vage is not confined to a mere quantum meruit, but is made to comprehend a reward for the risk of life and property, labor and danger in the undertaking, which may operate as an inducement to similar exertions. The courts do not place the compensation for salvage services upon the basis of pay- ment for work and labor, but, in the interest of commerce and navigation, will allow a liberal compensation in propor- tion to the benefits received by the owners.^ The amount of the salvage compensation rests in the sound discretion of the court. The award is not governed by any precise rule, but varies with the hazard, trouble, and expense incurred in the particular case. The rate is not governed by the mere extent of labor, but is a result from the combination of various con- siderations. The value of the property saved, the degree ol hazard in which it was placed, the enterprise, intrepidity, and danger of the service, and the policy of a liberal allowance for the timely interposition of marine assistance, all con- The Eising Sun, Ware, 378. ' The Island City, 1 Black, 131. The forfeited share inures to the See this principle recognized and owners, and not to the other salvors, applied in a peculiar case, — The Flinn e. The Leauder, Bee's Adm., Missouri's Cargo, 1 Sprague, 360; 8 260 ; Cromwell «. The Island City, 1 Law Rep. N. S., 88. Cliff., 231. * The John Perkins, 3 Ware, 89. ' The Boston, 1 Sumn., 338. ' Warders. La Belle Creole, 1 Pet. « The Island City, 1 BlacJc, 131 ; The Adm., 81 ; Eads v. The H. D. Bacon, John Perkins, 3 Ware, 89. 1 Mwb., 374. SALVAGE. 377 spire to heighten the amount. Where the value of the pro- perty is small, and the hazard is great, the allowance is al- ways in a greater proportion. On the other hand, where the value is large, and the services not highly meritorious, the proportion is diminished.' The general intention is, to make the awards upon liberal principles, ih order that the hope of an ample compensation may be a general inducement to sal- vors for the risk, hardship, and perils which they necessarily undergo." The value of the property saved, the degree of peril [590] from which it was delivered, the risk of property and persons of the salvors : the severity and duration of their labor, and the promptness and skill with which they inter- posed, are all to be considered.' Not only the actual toil and expenses are to be considered in a case of salvage, but also the imminent contingency that their services might prove un- availing, by the breaking up of the vessel, before any amount of the property could be saved." And the courts will even look beyond the diificulty and value of the particular service, and take into view the policy of encouraging competent per- sons, on a dangerous coast, to associate together and kepp themselves prepared with boats and other appliances, to render prompt assistance to vessels in distress." Some of the decisions have endeavored to afford guides or prescribe fixed proportions for determining the award in cases susceptible of a general rule. But no such efforts have met 'See Weeks ». The Catharine Maria, William Penn, 1 Am. Law Beg., 584; 2 Pet. Adm., 424; Two hundred and Chappel v. The John E. Clayton, 18 ten Barrels of Oil, 1 Sprague, 91; S. Sow. Pr., 319. C, sub nem. Howland ». Two huncjred * The John Gilpin, Olc, 77. and ten Barrels of Oil, 7 Law Sep., 'The Susan, 1 Sprague, 499; 13 377; The Narraganaett, 1 Blatchf., Law Rep. N. S., bZl. 311; Tyson v. Pryor, 1 Gall., 133; Where a steam-tug is constantly em- Rowe ®. The Brig . 1 Mas., 373. ployed during the winter, on a danger- To nearly same effect, McGinnis v. ous station, and at a heavy expense, ThePontlac, 1 Newi., 130; 5 McLean, for the purpose of rendering salvage 359 ; Montgomery v. Ths T. P. Leath- and towage services to vessels in dis- ers, Newb., 431. tress, her owners are entitled to the ' Mason v. The Blaireau, 3 Craneh, full remuneration usually awarded to 240 ; Brooks i:. The William Penn, 1 salvors who peril life and property. Am. Lam ling-, 584. though the particular salvage services ' Henne isf y «. The Versailles, 1 may not have been actually accom- Gurt. 0. CL, 353. To nearly the panied by much danger or labor. Vir- same eilect are Hand v. The Elvira, den ®. The Caroline, 6 Am. Law Beg., Oilp., 60; Montgomery v. The T. P. 333. And seeBi'ookss. The William Leathers, 1 Newb., 431 ; Brooks ». The Penn, 1 Id., 564. 378 SUBJECTS OF yURISDICTION. Bubstantial success, nor can it be said, reliably, that there are any fixed general rules upon the subject. The award rests in the discretion of the court, reviewable to some extent by the court of appeal. Even the rule formerly considered to prevail, of allowing one-half the value for the salvage of derelict property, has been relaxed. The Supreme Court have recently decided that the reward in derelict cases should be governed by the same principles as in other salrage cases ; that no valid reason can be assigned for fixing a reward for salving derelict property at a moiety, or any given proportion. The true principle is, an adequate reward according to the circumstances of the case.' Upon the question how the discretion of the [591] courts has been practically exercised in the various cases that have arisen, the practitioner will find it well to consult the cases, themselves in the books of reports." Sect. 158. Effect of a special contract. — Where it appears that the services for which salvage is claimed, were rendered, not upon the general hope of a salvage reward, but uncJer a contract for a stipulated compensation, that contract, if other- wise fair and valid, will govern the amount to be awarded. The salvor cannot repudiate the contract, and proceed for salvage." To give occasion for the application of this rule, however, two things must appear : that the parties formed a complete contract for a specific compensation ; and that this contract was not unfair or unreasonable in its terms. Questions under the first head, — ^the dejiniteii.es s of the ^ Post «. Jones, 19 flow., 150, 161. Harley«.Pour hundred and sixty-seven The rule is no longer adhered to Tons of Iron, 1 Semper, 1. strenuously in England. The Aquila, So, while courts of admiralty will 1 Bob. Adm., 37, 45 ; The Florence, not allow a salvor to avail liimself of 30 Sng. L. & Eq., 607. the calamities of others to drive a ' The decisions of the United States bargain; yet they will enforce a con- courts are given in Abbott's Nat. Dig., tract made for salvage service and sal- title Salvage. English cases in ad- vage compensation, wheje the salvori dition will be found in 3Par«. on Ship, has not taken advantage of liia power & Adm., 393, and Mob. on Adm. & to make an unreasonab'e bargain. 81. The" J. G. Paint, 1 Ben., 545. ' Bondies v. Sherwood, 33 How., So, a 6o»'i:.;?riecoinproraise precludes 214. a claim in admiralty for salvnue. And see The Whitaker, 1 Sprague, Brevoor v. The Pair Amc^rican, 1 Pi. 283; S. C, 8ub mm. Parker v. The Adm., 87; The H. B. Fo?ter, Ahh. Whitaker, 8 Law Bep. N. S., 497; Adm., 333; Z N. T. Leg. Obs., 333. SALVAGE. 379 contract, — generally arise where the owner of the property saved interposes proof of the special contract, as a defense to the claim for salvage compensation. To sustain this defense, it is necessary for the owner to plead and prove that a binding contract was made between those having charge of the vessel and the salvors, that the latter should be paid for their ser- vices in attempting to save the property ; and that they should be entitled to this payment in any event, whether the property was saved or lost.' And the agreement must have been so distinct and explicit in terms as to satisfy the court that the salvors assented to some other than a [592] salvage compensation.' In the case of Adams v. The Island City,' which arose upon a libel for salvage, it appeared that the bark Island City, being in distress, was partially assisted by a schooner, which left her, being unable to accomplish the salvage. The master of the schooner, however, carried into port a message from the bark to her owners, asking assistance. The owners requested the libelant's steamer to go to the assistance of the bark, which she did. The claim to salvage was resisted, upon the ground, among others, that the service was ren- dered under a contract with the owners of the bark, and, therefore, was not a salvage service. But Justice Clifford held the objection untenable. He said that no contract of any kind was made between the parties, except what might be implied from the request to go to the relief of the bark ; " which created no more obligation upon those on board the ' It will not bar a claim to salvage, Cliff., 330; The Camanche, 8 Wall., to show that the service was under- 448, 477. taken at the request of the owner, and ' Where a government vessel lay in upon a piomise to pay the bill if imminent peril, with signals of dis- thought reasonable, otherwise to refer tress, and the captain requested the the claim. And one who is under no claimants to save the vessel, assuring obligation to interpose for the preser- them that they should be well paid, /ation of property in danger at sea, but saying that he had no authority to will not be, treated by a court of admi- make a definite bargain, and they ralty as insisting on what is improper, saved the vessel after great danger if he declines making a contract, but and exertion, it was held that they insists upon leaving his compensation were entitled to salvage compensation, to be determined by the rules govern- There was no such specific agreement ing the allowance of salvage. The In- as limited them to a quantum meruit. dependence, 2 Curt. O. Gt., 350; 3 Gould «. United States, 1 Ct. of CI., Liv. Law Mag., 490; 8 Law Rep. N. 184. a., 151; Coffin v. The John Shaw, 1 ' 1 Cliff., 210. To same effect is Coffin V. The John Shaw, Id., 330. 380 SUBJECTS OF JURISDICTION. steamer to undertake the service than a signal of distress from the bark would have created, if it had been seen from the shore. They were at perfect liberty to go, or to decline to go, as they saw fit, and if they had refused, either from interest or choice, the owners of the bark would have no right of' ac- tion on account of the refusal. Such a service is entitled to be rewarded, under the conditions and according to the meas- ure of the maritime law ; as the claim st&,nds upon request to the master of the steamer to go to the assistance of the bark, a compliance with that request, and the performance of a ser- vice which is salvage in its incidents and nature. All the cases show that the relief of property from an impending peril of the sea, by the voluntary exertions of those who are under no legal obligations to render assistance, and the conse- quent ultimate safety of the property from such peril, consti- tute a case of salvage ; and where the compensation is not fixed by such a contract as a court of admiralty will enforce, it is to be adjusted according to those liberal rules [593] which form a part of the maritime law. In order to bar a claim for salvage, there must be a distinct agreement proved between the parties for a given sum. It is quite im- material whether the salvors accidentally fall in with the wreck, and volunteer their services, or are called upon by the owners or persons interested, to aid in saving it. It is the place where property is situated, and the circumstances of exposure and peril, which determine the question whether or not the case is one of salvage ; and it has been determined, that, to bar a claim of this description, it is necessary to allege and prove that a binding contract was made to pay for the service at all events, whether the property be lost or not." Questions under the second \L%'SL&.,—\h!d fairness of the con- tract, — arise where the salvors prefer the contract rate to the award which they anticipate from the free judgment of the court, and seek, in their proceeding for salvage, to have the contract rate enforced as the measure. When a case presents this aspect, if the bargain appears to have been made in good faith, to be free from fraud or mistake, and to be not extrav- agant in its terms, the courts will enforce it.' If an agree- ' The H. B. Foster, All. Aim., 232; 5 N. Y. Leg. Obi., 323 ; The A. D. Patchin, I Blatchf., 414. SALVAGE. 381 ment was mg-de between the parties under circumstances where there was no such necessity as to require immediate relief, at any expense or hazard on the one side, and, on the other, no obligation to lend the required assistance, and no motive to take advantage of the urgency of the peril in driving an unconscionable bargain, the court will adopt and enforce the contract as just and conscientious.' And the presumption is in favor of the agreement in these respects." But the con- trary may be shown ; and the court will not award the con- tract rate, if it appears clearly exorbitant or excessive. The agreement will be disregarded if disproportionate or unreas- onable, or if extorted through the pressure of impending calamity.' For such an agreement does not alter the nature of the service, but only guides the court in awarding the compensation. The service is still a salvage ser- [594] vice, and the compensation a salvage compensation. But contracts made for salvage services are not held obliga- tory by a court of admiralty, upon the persons whose property is saved, unless the court can see that no advantage is taken of the situation of the parties, and that the rate of compensa- tion is just and reasonable.' In connection with the subject of contracts for a special compensation, we may advantageously mention the principles which govern the settlement of salvage by Gompromise or arbitration. There are many cases in which the contract of the captain, in relation to the amount to be paid to salvors, or his agreement to refer the question of salvage to arbitrators, will bind the owners. In times of disaster, it is always his duty to exercise his best judgment, and to use his best exer- ' Bearse c. Three hundred and forty the distressed vessel, to secure their pigs of Copper, 1 Story 0. Ct., 314. exertions for saving his property, was ' Eads V. The H. D. Bacon, Mswh., held not to be legally binding, inMes- 374. ner v. Suffolk Bank, 1 Zaw Sep., ' The A. D. Patchin, 1 Blatchf., 349. 414 ; Bads v. The H. D. Bacon, 1 Prior lien-holders, not parties to the Netob., 374. And see Schultz v. The special agreement, they are not con- Nancy, Bee, Adm., 139 ; Cowell «. eluded by the amount of compensa- The Brothers, Id., 186. tion agreed to be paid, and a court of ' Williams ®. The Jenny Lind, admiralty may at their instance in- Newb., 443. quire into the reasonableness of the A promise of reward from a passen- compensation, and make such allow- ger, in circumstances of great danger, ance as may be equitable. Collins v. as in shipwreck, or in distress, or dis- The Fort Wayne, 1 iond, 476. aster at sea, to the officers or crew of 382 SUByJECTS OF JURISDICTION. tions for the benerifc of both the vessel and cargo ; and when, from his situation, he is unable to consult them or their agent, without an inconvenient and injurious delay, it is in his power to compromise a question of salvage. He is not bound in all cases to await the decision of a court of admiralty. So, when the salvage service has not been important, and the compensation demanded is a small one, it may be to the in- terest of the owners that the amount be settled at once by the captain, and the vessel proceed on her voyage without wait- ing to consult them. But in all such cases, unless the acts of the captain are ratified by the owners, his conduct will be carefully watched and scrutinized by the court ; and his con- tracts will not be regarded as binding on the parties concerned, unless they appear to have been made in good faith, and to be such as a discreet owner, placed in the same circum- stances, would probably have made. If he settles a claim for salvage by agreement, those who claim under it must show that the salvage allowed was reasonable and just. If he re- fers it to arbitrators, those who claim the benefit of the award must show that the proceedings were fair, and the referees worthy of the trust.' [595] Sect. 159. Military salvage. — By " military salvage " is understood a compensation awarded on salvage prin- ciples for the recapture of a vessel or cargo from a pirate, or from a public enemy before it has been condemned as prize. Such salvage has been, from the earliest period, allowed in the courts of the United States, upon general principles of admijralty law. The subject was formerly regulated in*some respects by the act of March 3, 1800,' and has lately been regulated anew by the act of June 30, 1864,= by which the act of 1800 was repealed. Under the last-mentioned act, when a vessel or other property is captured by any force hostile' to ' Houseman c. The North Carolina, the possession of which the vessel re- 15 P^f., 41. captured was taken. The degree of " 3 8tat. at L., 16. service rendered in such a case is pre- • Section 29. 13 Stat, at L., 314 ; cisely the same as if it had been ren- now embodied in Bev. Stat., § . dered by a belligerent ; yet, the rights * On a recapture of a vessel made by accruing from the recapture are differ- a neutral power, no claim for salvage ent, because no right can accrue from can arise ; for the recapture was a hos- an act which was unlawful. Talbot v. tile act, not justified by the situation Seeman, 1 Cranch, 1, 28. of the nation to which the recapturing It was held, that under the act of vessel belongs, in relation to that from 1800, as' well as by the general mari- SALVAGE. 383 the linited States, and is recaptured before condemnation as prize by any competent authority, a meet and competent sum is awarded as salvage, according to the circumstances of each case. If the property belonged to the United States, it is re- stored to the United States, and the salvage costs and expenses ordered by the court are to be paid from the treasury of the United States. If the recaptured property belonged to per- sons residing within or under the protection of the United States, the court adjudges the property to be restored to its owners, on the payment of such sum as the court may award as salvage costs and expenses. If the property belonged to any person permanently resident within the territory, [596] and under the protection of any foreign prince, govern- ment, or state, in amity with the United States, and by the law or usage o^ such prince, government, or state, the prop- erty of a citizen of the United States would be restored under like circumstances of recapture, it is restored to such owner upon such terms as, by the law or usage of such prince, government, or state, would be required of a citizen of the United States under like circumstances of recapture ; and when no such law or usage is known, it is restored upon the payment of such salvage costs and expenses as the court may order. The whole amount awarded as salvage is decreed to the captors, and no part to the United States ; and is dis- tributed as ill the case of proceeds of property condemned as prize. To constitute a case for military salvage for the recapture of a vessel taken as prize, it must appear that the property time law, tlie rule of reciprocity was Salvage is demandable upon the re- to be applied to recaptures of the pro- capture of property which has been perty of friends. If the law of a seized by pirates. If a ship which has friendly nation would restore in a like been seized under an usurped authori- case, then the United States were ty of a foreign government, is recap- bound to restore ; if otherwise, then tured by the crew, they are entitled the whole property must be condemned to the salvage. Williams d. Suffolk to the recaptors. The Adeline, 9 Ins. Co., 3 Sumn., 270; 1 Law Sep., CrasrecA, 344, 288 ; The Star, 3 Wheat., 153 ; reviewed on case certified. 13 78, 91. ' Pet., 415. And see Clayton v. The 8a,lvage is not due for rescuing the Harmony, 1 Pet. Adm.. 70. See, also, vessel of a neutral but of the hands of on the general subject. The Adven- a belligerent, who has taken posses- ture, 8 Granch, 321 ; reversing 1 sion for a supposed violation of a Brock. Ma/nh., 225 ; Coulon o. The treaty or of the law of nq,tions. Waite Neptune, 2 Pel. Adm., 356; Moodier. V. The Antelope, Bee, Adm., 233. The Harriet, Bee, Adm., 138. 384 SUByECTS OF JURISDICTION. was in the possession, either actual or constructive, of the enemy ; and that it was in actual hazard of being condemned as prize. The recapture must be lawful, and there must have been a meritorious service rendered to the recaptured.' Mili- tary salvage will not be allowed merely on account of stopping a'ship from going into an enemy's port." ' Talbot V. Seeman, 1 Oranch, 1, 38 ; Paine, 324 ; The Ann Green, 1 Gall., Murray v. The Charming Betsy, 3 Id., 374, 389. 64, 131 ; Davison «. Sealskins, 3 « The Ann Green, 1 Oall, 374, 393. CHAPTER XIII. [597] SEAMEN. To exercise control over and in behalf of seamen ; to en- force their claims for wages and the other rights which arise in their favor upon their contract of shipment ; to redress wrongs committed upon them by masters or inferior officers abroad ; and to convict for offenses peculiar to the vocation ; form an important branch of admiralty jurisdiction. And in so far as claims or proceedings for these purposes are of ad- miralty cognizance, they are, in thi^ country, exclusively within the jurisdiction of the United States. Sect. 160. The exislins: laws affecting seamen. — The act of June 7, 1872.' introduced a new and comprehensive system of statute provisions, governing the subject of seamen in the merchant service. It authorized the appointment of "ship- ping commissioners " at the leading ports of ocean navigation' to superintend the shipment and discharge of seamen, and rbatters connected therewith ; prescribed regulations for the contract of shipment, and for enforcing payment of wages ; made extended provisions for the protection and relief of sea- men, in various cases ; and defined offenses by them, and the punishment thereof. This Statute, together with whatever provisions of the previous acts of Congress it left in operation, became the basis of Title 53 of the Revised Statutes ; Mer- chant Seamek. ' 17 8tat. at L., 363, ch. 333. L., 410 ; Act of June 9, 1864, 18 Stat. ' See limitations prescribed by act at L., 64, upon the scope and operation Di Jan. 15, 1873, ch. 35, 17 8tat. at of the law. Vol. I.- 35 [385] 386 SUBJECTS OF JURISDICTION. Tlie text of Title 5B is the primary guide to the practi- tioner upon all subjects upon which it speaks ; it abrogates some former rules ; and as to others it supersedes the neces- sity of deducing them from f.heir origin in the decisions. But the law itself, as presented in the Revised Statutes, may so advantageously be consulted, that any synopsis of it which could be given in this work, would seem superfluous. We give, however, a brief statement of the leading doc- trines of the decisions,' both before and since the act of 1872, upon some topics which are of most frequent occurrence and chief practical importance ; believing that for some years yet to come a knowledge of those doctrines will be important in the administration of the law, however much some of them may be, in their direct operation, modified by its provisions. Sect. 161. The contract of shipment.— The contract of a sea- man to wages is founded upon the contract between himself and the master and the owners^ whereby he undertakes to serve on board the vessel. The law requires this contract to be in writing." But as the duty of complying with this re- quirement rests properly upon the master, the legal conse- quence imposed for an omission is, not that the seaman loses wages, but that the master becomes liable to penalty ; [598] and to payment of the highest rate of wages which has been paid at the port of shipment within the three months preceding, and to a forfeiture of twenty dollars in addition. Thus, there may be a recovery of wages upon the contract of shipment, without the execution of articles. By entering upon a voyage without signing shipping articles, an implied contract is created, so far as to bind the seaman, while he serves on board, to conform to the ordinary rules of the maritime law, and to entitle him to the ordinary rights of seamen duly shipped, including the recovery of wages measured as indicated ;' though he may avoid the engage- ment and leave the ship at pleasure.* And independently of the language of shipping articles, the law implies certain engagements on behalf of both the ' For a fuller exhibit of these decis- Ordbbe^ 336 ; Thomson «. Faussat, 1 ions, see Ahb. Nat. Dig., tit. Seamen. Pet. 0. Ot., 183. = Her). 8tat., § 4511, and onward. " The Fremont, 10 Am. L. Seg. If. ° Jameson v. The Regulus, 1 Pet. S., 340 ; S. C. mib nom. Britain ii. City Adm., 213; Jansen v. The Heinrich, of Fremont, IS Int. Bev. Sec., 149, SEAMEN. 3-87 parties. Tims, it is implied in favor of the seamen, from the fact of the contract of shipment, that, at the commencement of the voyage, the ship shall be furnished with all the neces- sary and customary requisites for navigation ; or, as the term is, shall be found seaworthy ; and that the captain shall sup- ply the mariner with good and sufficient provisions while in his service.' And he has long been held entitled, by the general rule of the maritime law, regulated and enforced in this country by express statute, to suitable medicines and medical attendance, in case of any illness or wound received in the service of the ship." And, upon the other hand, one who takes employment of a specific character on board ship, — for example, one who ships as steward, — impliedly contracts for the exercise of reasonable skill in that particular capacity. His negligence and want of skill are a good defense to his action for wages. And the fact that he was not discharged, but was permitted to serve through the employment, does not rebut this defense, if the circumstances, — for example, the vessel being on her voyage, — prevented his being dis- charged and a substitute procured.' The' mariner, if shipped for the vbyage, is bound or- [599] dinarily to serve until the end of the voyage. Payment and receipt on the discharge of the cargo at the last port of delivery, is the usual and sufficient evidence of the termina- tion of a seaman's contract forwages.^ In case of shipwreck, the seamen are bound to remain by the wreck and contribute their utmost exertions to rescue as much as possible from the violence of the elements, so long as there is a reasonable probability of saving anything, without too much hazard of ' Dixon D. The Cyrus, 2 Pet. Adm., seases the requisite experience and 407. ability. Allen «. Hallett, Abb. Adm., ' The Ben Flint, 1 Abb. U. S., 136. 573. And where a seaman deserts This right extends to a fireman from the vessel while in port, and an- employed on board a steanjer. The other hand is shipped in his place, and N. America, 5 Ben., 486. See also the deserter afterwards returns and se- Tomliuson v. Hewett, 3 Sawyer, 378 ; cretes himself on board, and is discov- Myers V. The Lizzie Hopkins, 1 Woods, ered after the ship has left port, the 170 ; Brown «. The Bradish Johnson, master is entitled to call upon him to Id.„ 301 ; Brown v. The D. S. Cage, perform any service as seamen which Id., i&l. may be within his ability; but is not ' The Buena Vista, 3 Blatckf., 510 ; entitled to assume that he is an able Forbes o. Parsons, Orabbe, 383. seaman, and to require him to do duty The master of a vessel is entitled to as such. lb. call upon the ship's cook to perform * Phillips «. The Thomas Scatter- service as a seaman, so far as he pos- good, Oi^., 1. 388 SUSyECTS OF JURISDICTION. life.' The prosecution of the voyage having, by an accident of major force, become impossible, the seamen are undoubt- edly discharged from the principal obligation of the contract — that of performing the voyage. But, as incidental to that, they are bound at all times to exert themselves for the pre- servation of the property entrusted to their care. It is a duty, resulting directly and necessarily from the nature of their engagement, to render their utmost exertions, on these occasions, to save all that is possible for their employers. So long as these services are continued, their right to wages, under the contract, remains in full force, as does their lien against the fragments of the wreck which they preserve. But a capture, unless followed by condemnation, does not dissolve the contract for mariners' wages. During the prize proceedings, it is suspended, and on a decree of restoration it revives.' Sect. 162. Shipping articles. — In the construction of ship- ping articles, the rule has been that the contract of each sea- man for his wages is a distinct contract, although he may sign the same shipping articles with others. He is not under- stood to contract Jointly, or to incur responsibility for any other person.' Deviations from the terms of the common shipping paper have been rigidly inspected ; ' and if additional burdens or ' The Dawn, Davie), 121 ; 4 Law in derogation of the general rights of Mip., 106; see Rev. 8tai., § 4535. seamen, as established by the maritime " The Saratoga, 3 (raK., 164; i Am. law, is void, unless such stipulation Law J., 13. was fully and fairly explained to them, ' Oliver «. Alexander, 6 Pet., and additional compensation allowed 143. them in consequence, adequate to the " The terms are now prescribed restrictions and risks imposed thereby. with some precision, by Bev. Btat., The Almatia, Deady, 473. § 4511. The shipping articles are not the A court of admiralty will require sole evidence of the seaman's rights, proof that anything unusual in the Effect must be given to an agreement terms of a shipping contract was made by the shipping agent at the time fairly explained to the seamen, and when the articles were signed and balanced by an adequate compensa- relied upon by the seamen as forming tion. In default of such explanation, part of the contract, where such agree- the court will set the contract aside, ment is clearly proven. Statements, and treat the man as engaged on the representations, and agreements made terms presented by law in absence of with seamen by shipping notaries, an agreement. The Australia, 3 Ware, when the articles are signed, bind the 340. To nearly same effect, the Roch- ship, and that without reference to the ambeau, Id., .304. instructions which the captain has Any stipulation in shipping articles given the notary. When the ship- SEAMEN. 389 sacrifices are imposed upon the seamen without adequate re- muneration, the courts have interfered to moderate or annul the stipulation. Seamen are emphatically the wards of ad- miralty ; and though not technically incapable of entering into a valid contract, they are treated by courts of maritime law in the same manner as courts of equity are accustomed to treat young heirs dealing with their expectancies, wards with their guardians, and cesiuis que trust with their trus- tees. If there is any undue inequality in the terms, any dis- proportion in the bargain, any sacrifice of rights on one side which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction is, that the bargain is unjust, and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable.^ The articles are construed with special view to the necessity of protecting seamen against any oppression or bad faith on the part of masters. Any express stipulation which they may contain will control the general rule of law applicable to the rights of seamen ; but to have that effect, its language must be clear." Before the act of 1840, it was held that [602] our courts of admiralty would not enforce against sea- men stipulations in shipping articles, which operated to their disadvantage, and were inserted in the articles in addition to the stipulations recognized by the act of 1790, unless it ap- peared from evidence outside the articles, that the seamen fully understood the stipulations, and received an adequate compensation therefor.' And since that act, an unusual clause in the shipping articles, not brought specially to the notice of the seaman at the time he shipped, has been held not to be binding on him.* owner allows a shipping agent to em- demand or be entitled to his wages', or ploy a crew for him, he holds out to any part thereof, until the return of the seamen, that the shipping agent the vessel to the port of outfit, does has authority to bind the ship by the not amount to a guarantee on the part contract which he makes. The actual of the mariner that the vessel shall bargain made between the shipping arrive; but is merely an agreement agent and the seaman, at the time of that such wages as were legally due at the shipment, binds the ship. The a foreign port should be paid only at the iLola, 6 Ben., 143. port of outfit. Johnson ■». The Lady ' Harden ». Gordon, 3 Mas., 540, WalterstorfE, 1 Pet. Adm.. 213. 556. = The Sarah Jane, Blatchf. & H., 401. ' An agreement in the shipping arti- * Matern v. Gribbs, 1 Sprague, 158 ; cles, that no officer or seaman should Mayshew ». Terry, Id., 584. S90 SUByjSCTS OF JURISDICTION. That portion of the articles which describes the voyage in- tended, has an important bearing on the right to recover wages. It was held tliat when the shipping articles did not describe the voyage in compliance with the requirements of the acts of 1790 and 1840, the seamen might leave the vessel at any time." And, on the other hand, if the voyage men- tioned in the shipping articles is broken np without cause, and without the seaman's consent, he may recover wages for the whole voyage stipulated, deducting his earnings mean- while." And a mariner may allege and prove that the ship- ping articles do not truly describe the voyage for which he was shipped, and may recover wages upon the ground that the voyage for which he contracted was different in length from that desfcribed in the articles, and that he was wrong- fully discharged at the expiration of the voyage specified in the articles.' [603] Sect. 163. The right to wages, generally. — The right to recover wages is, of course, dependent upon the prin- ciples which govern actions for services generally, requiring a substantial and faithful performance, according to ,the tenor and effect of the contract. Among the principles peculiar to this contract, is the rule which requires the earning of freight by the vessel as a condition to the right to wages. The gene- ral principle of the maritime law is, that "freight is the mother of wages," and if no freight is earned no wages are due.' The reason given for this rule is, that if mariners were to have their wages in all cases, they would not use their en- deavors, nor hazard their lives for the safety of the ship.' Freight, being the earnings of the ship in the course of the voyage, is the natural fund out of which the wages are con- templated to be paid ; for, although the ship is bound by the lien of the wages, the freight is relied on as the fund to dis- charge it, and is also relied on by the master to discharge his For instances of the enforcement or " The Maria, Blatchf. & S, 331. ayoidance of special articles in these ' Page ®. Sheffield, 2 Curt. G. Ct., agreements, see Abb. Nat. Dig., title 377; affirming 1 Prague, 285; 8 Law Shippinq Articles. Bep. N. a ground for forfeiture of wages, but more usually operates to warrant a deduction only.' The That the previous statutes on the numerous cases ; but they turn too subject did not abrogate the doctrine often upon the circumstances of the of the maritime law as to cases Outside particular case, to futtiish any reliable their operation, see the John Martin,' general rules. Mere absence from the 3 Aib. U. S., 173. But compare Grif- ship is not desertion, though where it ford V. KoUock, 3 Ware, 45; Id., 396; is wrongful and causes injury, it may Id., 346. be ground for deduction of wages. Cotfin V. Jenkins, S Story O. Gt., " Whitten «. The Commerce, 1 Pet. 108; Burtons. Salter, 11 Law Bep. N. Adm,.,16Q; 8neU«. The Independence, 8., 148; The Cadmus e. Maitthews, 3 Oilp.:, 140; And see The Elizabeth ■». Paine, 339; The Swallow, Olc., 4; Rickers, 3 Pairae, 391 ; The Betsey «. The Philadelphia, irf., 316. Duncan, 3 Wash. C. Ct., 373; Hart ' The Catawanteak, 3 Ben., 189; 1 v. The Otis, Orabbe, 53. Banh. Beg., 83. *The Cadmus «. Matthews, 3 Paine, ' The Caroline E. Kelly, 3 ^55. V. 339. 8., 160; S. C, s*J nom. Doherty v. ' Ulary «. The Washington, Orabbe,^ The Caroline E. Kelly, 1 PMla,, 570. 304; The Philadelphia, Olc, 316. Compare The' John Martin, 3 Abb. " Coffin v. Jenkins, 8 Btory O. Ct., U. 8., 173; Bush «.• The Alonzo, 3 108; The Union v. Jansen, 2 Paine, Giiff^i 5'k8. 377. ' What amounts to a desertion, has ' Beeante, p. [5f8]; also, Wood «. The been the subject of consideration in Nimrod, CHlp.,86. 400 suByi:cTS of jurisdiction. master nas a right- to disrate a seaman for incapacity, and in proper cases, he will be justified in so doing. The sea- man does not forfeit, in such case, all claim for wages. If he is put to other duties, he may claim reasonable wages.' Habitual drunkenness, if it goes to establish general incapacity to perform duty, is a ground of forfeiture of wages ; otherwise it goes only to diminish compensation for the voyage." Un- doubtedly it should be an incapacity existing before the com- mencement of the voyage, or resulting from some blame- worthy cause on the part of the seaman. Where, before the commencement of the voyage, a seaman who has shipped for the voyage becomes disabled by inevitable accident from pro- ceeding upon it, and quits the vessel, he is not entitled to compensation under the articles, but only to a reasonable sum for services actually rendered. But the rule is otherwise where the disability occurs during the voyage, or where the seaman was wrongfully discharged, although before the voy- age commenced.' Disobedience, such as a refusal to work, resulting [614] necessarily in detaining the vessel, may be ground for a deduction from the wages of the refractory seamen.* There is, however, no inflexible rule requiring the court, in all cases, to withhold wages for a wrongful refusal of duty ; but the judge may look into the circumstances, and exercise his discre- tion. ° Wages of seamen are forfeited for gross offenses, and not for slight faults, either of neglect or disobedience. The disobedience must either be an act of a very gross nature, in- volving serious danger, mischief, or malignancy ; or it must be habitual, and produce such a general diminution of duty, as goes to the very essence of the contract.' Thus, a refusal to do duty at a moment of high excitement, from punishment inflicted on the party, if not followed by obstinate perseve- rance, is not ground for a forfeiture of wages.' ' The Alonzo, 3 Ware, 318. Wheatley «. Hotchkiss, 1 Bprague, 'The libelant shipped as an able 325; Q Law Eep. N. ^., 693. seaman, but it was in fact competent ° Mxp. Gidding, 3 Gall., 56. to perform only the duties of a green ' Snell v. The Independence, Oilp., hand. It wa« held that the measure 140. of compensation for his services was ° Gladding v. Constant, 1 Pprague, not the wages of a green hand for such 73. a voyage, but only what his services " The Mentor, 4 Mas., 84. vnrH actually worth to the owners. Orne v. Townsend, 4 .afas., 541. SEAMEN. 401 For a seaman willfully to do any act which puts the vessel in jeopardy, — as for one to -violate a notorious excise law by smuggling, — is a breach of the duty which he owes to the ship. Such breach of duty may be considered in diminution or in bar of the seaman's wages.' Damages can be recovered for the misconduct of a seaman, only when they are the direct and immediate result of his acts or omissions ; not when they are remote and contingent." In a suit in rem by a mate to re- cover his wages as mate under the shipping articles, an alle- gation of misconduct while in the temporary command of the vessel as master, upon a voyage during which the master was not on board, cannot be set up as a gronnd of forfeiture of the wages claimed. For forfeiture of wages of seamen, though in some cases regulated by positive law, rests upon violation of a contract, the performance of which is enforced by the mari- time law, by means of this species of punishment. Conse- quently, before such a forfeiture can be adjudged, it must ap- pear that the contract under which the wages are claimed has been violated. It is not enough that some other contract be- tween the same parties has been broken, however gross the wrong may be. On a libel in rem by the mate, to recover the wages due to him in that capacity, the [615] claim for wages as temporary master cannot be enforced. Such a libel lays no foundation for any inquiry into an im- plied contract arising out of the emergency of a temporary command, either for the purpose of awarding or withholding compensation for services rendered in that command. That is a subject, the merits of which can be investigated only in a suit founded on that contract.' And it is held that seamen who have been punished in a criminal proceeding for insu- bordinate conduct, ought not for the same misconduct to for- feit their wages for the voyage.* See also the Palledo, 3 Wan-e, 331; T. U. 8. Cts., 183; The Cummiiigs, 7 The Richard Mott, 1 Bigs., 440 ; John- Phila., 598 ; Hayes i>. The J, J. Wick- son B. The Cyane, 1 Samyei; 150. wire, Id., 594. ' Scott ®. Bussel, Abb. Adm., 358. " Macomber v. Thompson, 1 Sumn., For instances, see Macomber «. Thonip- 384. son, 1 Sumn., 884; Sprague v. Kaine, ' Airey v. The Ann C. Pratt, 1 Curt. Bee, Adm., 184; The Olive Chamber- O. Gt., 393. lain, 1 Sjjragve, 9; The Mary Ann, 'Hill «. The Triumph, 3 iV. T. Leg. Abb. Adm., ^lO; Lang «. Holbrook, Obi., 115; "Wood v. The Nimrod, Crabbe, 179. The Almatia, 1 Am. L. (flip., 83. 402 SUBJECTS OF JURISDICTION. A mariner forfeits his wages by an embezzlement of any part of the cargo." And, in general, all the crew are liable to contribute from their wages, to make good the value of por^ tions of the cargo embezzled by some of their number. This is required, in order to compel vigilance upon the part of all, to protect the cargo from theft." But where an embezzle- ment takes place on. board of a ship, the seamen are not liable to contribute out of their wages, unless it was caused by their fraud, connivance, or negligence ; or, if the oilender is un- known, unless a presumption of guilt is fixed upon all the crew, or, at least, upon those who are called upon to con- tribute.' ' Mason n. The Blaireau, 3 Oranch, Parker v. The Calliope, 3 Pet. Adm., 340; Alexander v. Galloway, Abh. 373. Adm., 361; Mariners v. The KeDsing- 'Fogarty v. Pratt, % Am. Law J., ton, \ Pet. Adm., 239; Compare Ed- 238; Sullivan ». Ingraham, £ee, Adm., wards «. Sherman, Gilp., 461. 182. It is not such embezzlement as will ' Spurr v. Pearson, 1 Mas., 104. forfeit a mariner's wages, for the mari- How far innocence may be shown as ner to sell part of the cargo in order a ground of exemption, — see Sullivan to procure necessary provisions for ' v. Ingrabam, Bee, Adm., 183; Cram- the vessel, if done by order of the mate mer v. The Pair American, Pet. Adm., during the absence of the captain. 243; Mariners «>. The Kensington, Id., Anderson v. The Solon, Crabbe, 17; 238. CHAPTER XIV. SEIZURES. We are now to explain that branch of the j irisdiction of the courts of the United States which embraces the enforce- ment or prosecution of seizures of property for violation of law. The leading provisions of the statuCis which confer this jurisdiction, and which regulate tfce proceed in i_s of the courts in exercising it, have already bee i given. The i eneral nature of the grounds upon which these seizures are made, is now to be explained. Sect. 168. Nature of forfeitures.^One very important and fre- c[uently employed method of enforcing the laws of the United States is, by prescribing 2i, forfeiture of property employed in a violation of law, as a penalty for the unlawful acts of those by whom it is owned or used. Particularly where vessels are fitted out for an unlawful trade, or for smuggling, &c., or where goods are manufactured or are brought in to the coun- try in evasion of the revenue laws, it is found a convenient and efficient means of securing obedience to the law, to im- pose a forfeiture of the offending property, instead of rely- ing solely upon the infliction of imprisonment or the imposi- tion of a tine upon the individual chargeable with the oif ense, in person. Courts of admiralty also possess, to a certain extent, a power of decreeing and enforcing forfeitures independent of any statute law imposing them as a punishment for crime. The doctrine of forfeiture of seamen's wages, explained in the prev'ous cl^apter, is an instance of the exercise [619] of this power. But this branch of the subject does not [403] 404 3U£yi:CTS OF JURISDICTION. need an e v tended and specific consideration, by itself. Tlie general rule of the maritime law, as applied to torts and in- juries committed on the high seas, and within the admiralty j .lu diction, is not forfeiture of the offender's property, but compensation to the full extent of all damage, to be enforced by a proceeding therefor, in rem, or in personam,. In cases of extraordin iry turpitude, the law of nations goes farther, and inflicts the } enalty of confiscation ; but for petty mis- conduct, or thievery, it contents itself with the mitigated rule of compensatii)ii in damages.' Sect. 169. How forfeitures are enforced. —The initial step in the enforcement of a forfeit uie, is the seizure of the property exposed to be forfeited. This is fundamental to the whole proceeding. The officers of the government, having lawful reason to believe that the property in question has become liable to forfeiture, by reason of the unlawfulness of some use t> which it has been put, or for which it is intended, take possess on of it, and bring it before the District Court for ad- judication. A libel of information is then filed against the property ; opportunity is given to the owner to appear and defend the charge ; after the usual further proceedings, a trial is had, and if the alleged infraction of law is established, the property is condemned and sold under the decree of the court, and the proceeds are distributed as the law applicable to the case may prescribe. Thus, seizure is the fundamental step towards exercising the jurisdiction of the courts to en- force forfeiture. It is very tme, that at the common law, a forfeiture did not, strictly speaking, attach in rem, but was a consequence of the judgment of conviction. No right to the goods and chattels of a felon could be acquired by the crown by the mere commission of the offense ; but the right attached only upon a conviction of the offender. In every case, therefore, where the crown sought to recover such goods and chattels, its right could only be established by producing the [620] record of conviction. But this doctrine was never ap- plied to seizures and forfeitures created by statute, in 'rem, and cognizable on the revenue side of the exchequer. The thing was there primarily considered as the offender, or ' United States v. The Malek Adhel, 2 How., 210. SEIZURES. 405 rather, the offense was attached primarily to the thing. The same principle was applied to proceedings in rein, on seizures in the admiralty. Consequently, whether there be a penalty attached to the act or not, the proceedings in rem are inde- pendent of, and wholly unaffected by any criminal proceeding in personam; and a personal conviction of the offender is not necessary as a preliminary to the proceedings in rem. ' Sect. 170. Grounds and effect of forfeiture. — The grounds upon which a forfeiture of property may be decreed under the laws of the United States, are too numerous to be exhaustively enumerated." They have been prescribed, with definiteness and distinctness, by various acts of Congress ; the substance of which, as they were in force December 1, 1872, is embodied in the Revised Statutes. To these the reader must turn to learn the grounds of a forfeiture. We mention some princi- ples governing proceedings upon a seizure to enforce either of these forfeitures, as they may be gathered from the adjudi- cation. A seizure cannot be made, nor a forfeiture enforced [622] tor a violation of a law of the United States, after it has expired or been repealed.' N'or can a sentence of condemna- tion be aflSrmed, if the law under which the forfeiture has accrued, has expired ; although a condemnation and sale had taken place, and the money had been paid over to the United States before the law had expired.* Upon the other hand, if a defendant has incurred a forfeiture, and seeks to avail himself of a defense granted to him by a subsequent law, to which he was not entitled at the time when the act' for which the penalty is given was performed, he must take it, subject to such terms and conditions as the legislature, at the ' The Palmyra, 13 Wheat., 1. imposing forfeitures for violations of ' The statutes often employ the the copyright laws ; for several viola- terms "forfeit" and " forfeiture " in tions by revenue officers of the duty imposing a penalty recoverable by ac- laws, &c. ; and for the shipment, by tion, and to which the remedy by commanders of public vessels, of sear seizure and information in rem are men of a class prohibited to be ?m- whoUy inappropriate, and the explana- ployed. tions in this chapter do not apply. ' Yeaton ®. United States, 5 Oranch, Such, for instance, are the provisions 281; United States «. The Helen,, 6 id, authorizing the forfeiture of stocks of 303; The Irresistible, 7 Wheat., 551. national banks for non-payment of ' The Rachel «. United States, 6 assessments, and of seotfrities for fail- Cranch, 339, ure to redeem circulating notes ; those 406 SUBJECTS OF JURISDICTION. time it passed the beneficial law, or at any fatiire time, might please to prescribe.' It is held that if a seizure for a violation of the revenue laws has been made and continued, it is no objection to the proceedings instituted thereon that the cause of the forfeiture set up in them is not the same as that upon which the officers assumed to act in seizing. The United States are not bound down by the acts of the seizors to the causes which influenced them in making the seizure, nor by any irregularity on their part in conducting it, if the seizure can be maintained as founded on actual forfeiture for any cause existing at the time of the seizure.' In general, it is held that a forfeiture will not be enforced, unless the act for which it is to be decreed was committed with a criminal intent. Thus, the owner of goods cannot for- feit them for a violation of the revenue laws by reason of an act done without his consent or connivance, or that of some person employed or trusted by him.' So, a forfeiture is not to be incurred for a mere mistake in the manifest, re- [623] port, or entry, either in the quantity or value of goods imported, without fraud or culpable negligence. And the landing of goods without a permit, where a vessel has been abandoned by her crew, or cannot be brought into port, does not subject them to a forfeiture.* But this rule is liable to be varied whenever the express provisions of the statute impose a forfeiture irrespective of intent. Thus, the inno- cence of the owners of a ship which has committed a piratical aggression within the sense and meaning of the act of March 3, 1819," cannot exempt the offending vessel from the penalty of confiscation. The vessel which commits the aggression is treated as the offender, as the guilty instrument or thing to which the forfeiture attaches, without any reference whatso- ever to the character or conduct of the owner. This is not an uncommon course, and is justified by the necessity of the case, as the only means of suppressing the offense or wrong, or insuring an indemnity to the injured party. The acts of ' United States «. Hall, 3 Waiih. G. The Polly & Nancy, 1 Am. Law J., C«., 366; affirmed, 6 Cranch, 171. 483; United States v. The Margaret' ■' Wood V. United States, 16 Pet., Yates, 22 Vt., 608. ii42. * Peisch n. Ware, 4 Oraneh, 847. ' Peisch ». Ware, 4 Cranch, 347. To ' 3 Stat, at L., 510. nearly same effect, United States v. SEIZURES. 407 tlie master and crew, in cases of this sort, bind the interest of the Owner of the ship, whether he be guilty or innocent ; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason o their unlawful or wanton wrongs. But, under this act, the cargo of an in- nocent owner, free from any suspicion of collusion with the master, stands upon a different footing. There is no provi- sion in the act for its condemnation, and there is no principle of the law of nations which requires the penalty of confisca- tion to extend to. the cargo as well as the ship.' Upon similar principles, the courts endeavor to avoid ad- ministering the laws imposing /forfeiture in such a way as to preiudice the rights of innocent third persons in the property in question." Sect. 171. Jurisdiction over seizures.— The original ]ur- [624] isdiction over seizures under the laws of the United States, is exclusively vested in the District Courts. The District Court, as a court of admiralty and maritime jurisdiction, may entertain suits for all torts, damages, and un- lawful seizures at s^a ; and as a court of revenue, it may en- tertain suits for the trial of property seized for the violations of municipal laws ; and, as incident to this jurisdiction, it may compel a re-delivery of the property, and award damages for any loss of or injury to it. It may compel a seizor to proceed to adjudication, as it does a captor. ° It is held that the Dis- trict Courts have this jurisdiction in cases of alleged forfeiture, although the property seized may not be in possession of the officers of the court. The District Court derives its jurisdic- tion, not from ^ny supposed possession of its officers, but frorh. the act and place of seizure for the forfeiture. And when once it has acquired a regular jurisdiction, subsequent irregularity does not avoid it.' If the seizure is made within the waters ' ITaited States «. The Malek Adhel, As to the time when the pix)perty a Sbi«., SIO. forfeited vests in the government, — ^ The St. JagO de Cuba, 9 Wheat.^ see Caldwell «. United States, 8 Bow.^ 409; The Florenzo, 1 mat-ikj. & H., 366; The Floi-enzo, 1 Blatchf. & H., 52; Six hundred and flfty-one chests 53; United States e. Fifty-six barrels of Tea V. Jhe United Statei^, 1 Paine, of Whiskey, 6 Am. Law Beg. N. F„ 83; 499; The Plough boy, 1 G^aK., 41; One Clark ®. Protection Ins. Co., 1 Btory thousand nine hundred and sixty bags C. Ct., 109. of coffee, 8 Craneh, 398; The Mars, 1 = Burke v. Trevitt, 1 Man., 96. (?«Z?., 192; Clark «. Protection Ins. * The Bolina, 1 ffas?;,, 75. Compare Co., 1 8tory G. Cl., 109. Burke «. Trevitt, 1 Mas., 96. 408 SUBjTECTS OF JURISDICTION. of one district, the jurisdiction attaches to the court of that district, and the suit must be there prosecuted. The juris- diction, in these cases, is given to the court of that district, not where t e offense was committed, but where the seizure is made." But where the seizure is made on the high [625J seas, the jurisdiction is conferred upon no particular District Court, and it may, therefore, be exercised by the court of any district into which the property is carried, and there proceeded against. In like manner, if the seizure be made within the waters of a foreign nation, cognizance of the cause is given, under the general expressions ©f the section, as to civil cases of admiralty and maritime jurisdiction, to the court of the dis- trict into which the property is conducted, and in which the prosecution is instituted. A seizure is, however, necessary as a foundation for the jurisdiction.'' To authorize any District Court of the United States to ad- judicate upon a cause of forfeiture of a ship, such ship must be within its jurisdiction, and subject to, and within the reach of the process of such court, and must be seized by such pro- ' The Merino, 9 Wheat., 391, 403 ; wards brought -within such district : The Ann, 9 Crancfi, 389 ; The Abby, and such seizure must be alleged in 1 Mas., 360 ; The Little Ann, 1 Paine, the libel and proved on the trial. In 40. proceedings in rem against vessels for Thus the trial of seizures under the penalties and forfeitures under acts of act of February 18, 1793, — "for en- Congress, it is a general rule that a rolling and licensing ships or vessels seizure of the vessels must precede the to be employed in the coasting-trade filing of the libels, in order to give ju- and fisheries, and for regulating the risdiction to the court ; and that oon- same," — is to be in the judicial district sequently such precedent seizure must in which the seizure was made, with- be averred in the libel. But if, under out regard to the district where the the act of Congress, the owners exe- forfeiture accrued. Keene v. United cute delivery bonds, they thereby States, 5 Oraneh, 804. waive the objection of the want of a ' The jurisdiction of the district prior seizure. The Lewellen, 4 BUs., courts over cases of seizure under the 156. S. P., The Lewellen, Jrf., 167; laws of impost, navigation, and trade, The Fideliter, 1 Abb. U. 8., 577. given by the judiciary act of 1789 (1 The adoption by the government of Stat, at L., 77, § 9), does not attach, a seizure under the internal revenue unless there has been an open and vis- laws cures any delect, in the compe- ible seizure of the property proceeded tency to seize, of the person who made against, by an officer of the govern- the seizure. United States v. Barrels ment or other person authorized by of Distilled Spirits, 5 BlatchJ'., 407. law to seize, prior to the commence- As to the sufficiency of a seizure, see ment of the proceeding, either within United States v. One case of Silk, 4 the district where the proceeding is Ben., 536. had, or upon the high seas, and after- SEIZURES. 409 cess.' A seizure by a custom-house officer is not an es- sential pre-requisifce to such authority for adjudication, [626] the warra,nt of a marshal being sufficient for this pur- pose." So, as jurisdiction of revenue forfeitures is conferred upon the court of the district where the seizure was made, and not where the offense was committed, there must be a seizure before judicial cognizance can attach upon a forfeiture in rem under the statute ; for, until seizure, it is impossible to ascertain which is the competent forum. It must also be a good subsisting seizure at the time the libel of information is filed and allowed.' The jurisdiction over seizures is vested in the District Courts exclusively, as towards both the Circuit Courts and State Courts. That the Circuit Courts have no original juris- diction of this character, has been held in several cases." It was early held that the cognizance of seizures conferred upon the District Courts by the Judiciary Act was exclusive, as towards the State Courts. Any intervention of a State au- ' The Merino. 9 Wheat., 391, 402 ; The A.bby, 1 Ma»., 360. In the case of The Joseph G-orham (3 N. r. Leg. Obs., 388). the deputy- marshal for the southern district of New York, on August 4, 1843, by vir- tue of a warrant granted by the Dis- trict Court for that district, seized and attached a brig in the harbor of Ne