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A COLLECTION
OP
IMPORTANT JUDICIAL OPINIONS
BY EMINENT JUDGES.
WITH
AN INTRODUCTION, NOTES, ANALYSES, ETC.
BY
WILLIAM L. SNYDER,
OF THE NEW YORK BAR.
NEW YOEK:
BAKEK, YOOKHIS & CO., LAW PUBLISHEES,
66 NASSAU STREET.
]883.
Entered, according to Act of Congress, in the year eighteen hundred and eighty-three, by
BAKER, VOORHIS & CO.,
In the Office of the Librarian of Congress, at Washington.
BAKER ft GODWIN, PRINTERS,
25 Park Row, New York.
PEEFACE.
Some two years since I prepared a volume containing Ar-
guments and Speeches before Courts and Juries by Eminent
Lawyers — ^tbe object being to preserve some of the best
efforts of distinguished advocates. It was thought that a col-
lection of legal speeches worthy to be regarded as models of
legal reasoning and forensic power, would be valuable and
instructive, and the success which attended the publication has
fully corroborated that belief. The book was designed as a
standard collection of legal eloquence, and bears the popular
title of "Great Speeches by Great Lawyers."
The approval which that undertaking has received, encour-
aged the publishers to continue their original design of pro-
ducing a ".Cyclopedia of Legal Eloquence, Argument, and
Opinion," and the present work forms part of the plan, and
is intended as a companion volume to the " Great Speeches."
It will be found to embrace a varied collection of judicial
opinions upon important branches of the law, and includes
decisions of English and American judges. Those names have
been selected which stand highest in the esteem of the pro-
fession. If, however, a few are not readily recognized as
so specially notable, yet it is thought that the vigor, ability,
and learning shown in these decisions of judges less widely
known, will fully justify their admission into this collection.
The law, aa it has been administered here and in England
for more than three hundred years, embraces a record extend-
IV PREFACE.
ing through many thousands of volumes, and the judges who
have contributed to this great body of authority are ahnost
innumerable. The changes which time has wrought have
caused much of this judicial learning to become obsolete.
Many able opinions, doubtless, will be missed from this collec-
tion ; but to present, within the compass of a single volume,
judgments pronounced by distinguished men, suitable to illus-
trate elementary principles in both civil and criminal branches
of jurisprudence, and to maintain throughout a high standard
of excellence, is a task exceedingly difficult and perplexing.
If, however, this work meets with approval, another will be
issued, containing a number of notable opinions which could
not be given within the limits of the present volume.
In view, therefore, of the labor and responsibility which
attend, this undertaking, and the vast amount of material
from which the selections have been made, I shall trust to
the kind indulgence of my professional brethren, in passing
judgment upon the work.
WILLIAM L. SITTDER.
Kbw Tobk, March, 1883.
CONTENTS.
SIE EDWAED COKE.
[1613-1614.]
PAGE
The King v. Taverner. — If one slay his adversary in a
duel, it is murder at the common law . . . .11
Warner v. Suckerman. — Power of the court to grant writ
of prohibition 15
Bagge v. Slade. — A promise is a good consideration for
a promise 19
Cryps v. Baynton. — The complaint need not contain the
items of an account ....... 20
Simpson v. Powell. — Forbearance to sue, a good considera-
tion for a promise 21
LOED HOLT.
[1703-1704.].
AsHBY V. White. — On the right to recover damages for not
being allowed to vote 23
Regina v. Paty. — Jurisdiction of the Commons to com-
mit for contempt 37
CoGGs V. Bernard. — The law of bailments ... 40
LOED HAEDWIOKE.
[1740-1751-]
Brook v. Galley. — When equity will restrain a suit at law
to enforce infant's contract after ratification . . 53
Freeman v. Bishop. — ^When equity will set aside a mort-
gage given by a young heir, on grounds of public
policy 60
Gratwick v. Juniper. — Equity will relieve against a mis-
take;^ fact 64
Chesterfield v. Jansen. — ^When equity will not relieve
against a wager after ratification of the contract . 67
[V]
Tl CONTENTS.
LOED MANSFIELD.
[1766-1778.1
PAGE
Carter v. Boehm. — Concealments and disclosures in con-
tracts of insurance 84
HoLMAN V. Johnson. — Contract valid where made, is valid
everywhere 97
Bexwell v. Christie. — Illegality of "Puffing," and false
representations at auction sales . . . _ . . loi
Jones v. Randall. — Wager between third parties as to re-
sult of litigation — when valid 104
Da Costa v. Jones. — Wager as to the sex of an individual
immoral and void ....... 107
Somerset v. Stewart. — The air of England too pure to be
breathed by a slave 112
SIE WILLIAM BLAOKSTONB.
[I773-]
Scott v. Shepherd. — On the common law distinction be-
tween actions of " Trespass " and " Case " . . .116
OLIVER ELLSWOKTH.
[1798.]
Anonymous. — On the operation of a national treaty upon a
State statute . ■ 12}
LOED EEDESDALE.
[1802.]
Bond v. Hopkins. — Equity will prevent an advantage gained
at law from being used against conscience . . -IS*
THEOPHILUS PAESONS.
[1807-1810.]
Richardson v. Maine Ins. Co. — Maritime contracts.—
Goods contraband of war.— Rights of neutrals . .156
MiLFORD V. Worcester. — Marriage contract. — ^What neces-
»f^ sary to constitute 171
Greenwood v. Curtis. — Illegality as to note, when no bar to
Wi a recovery on the contract 179
Coffin v. Coffin. — Pleading. — The word " whereas " after
judgment may be disregarded 187
CONTENTS. Til
THEOPHILUS FARSONS—coniinued.
"PAGE
Commonwealth v. Thompson. — Empiricism, though result-
ing fatally, no crime at common law . . . .192
Commonwealth v. Newell. — Mayhem. — What constitutes
the offense at common law 198
JAMES KENT.
[1809-1816.]
Yates ». Lansing. — A judge cannot be sued for error arising
in a matter within his jurisdiction .... 201
Livingston v. Roosevelt. — One partner cannot bind his co-
partner except in the course of copartnership dealings. 215
Gardner v. Village of Newburgh. — Private property can-
not be taken for public use without just compensa-
tion 226
Peck v. Ellis. — He who comes into equity must come with
"clean hands." No contribution between wrong-
doers .......... 233
Hildreth v. Sands. — When equity will avoid a sale as fraud-
ulent, though made to an innocent purchaser . . 240
HUGH H. BEAOKENEIDGB.
[1812-1814.]
McAllister v. Marshall. — On the law of secret trusts as
between debtor and creditor 253
Alexander v. Jameson. — The origin, use, and abolition of
seals 258
Commonwealth v. Taylor. — The right to indict for making
noise in private house ....... 263
JOHN MAESHALL.
[1819.]
McCuLLocH V. Maryland. — On the powers of the States
and the Federal government . . . , . 267
LOED STOWELL.
[1821-1823.]
Gilbert v. Buzzard. — On the law of burial and the use ^f k ■ '
metallic coffins 296
The Jane and Matilda. — Woman's sex no bar to her claiflT
for mariner's wages -313
nu CONTENTS.
LOED BEOUGHAM.
[1831-1833.]
Greenough v. Gaskell. — On the law of confidential and
privileged communications to attorneys . . . 323
McCarthy v. De Caix. — Marriage solemnized in England
can only be dissolved in England. — Ignorance of law
and fact, excuses 339
THOMAS EUFFIN.
[1833.]
Hoke v. Henderson. — On the power of the Legislature to
transfer a public office from one individual to another 347
EOGEE BEOOKE TANEY.
[1837.]
Charles River Bridge v. Warren Bridge. — On the nature
and character of corporate grants .... 379
JOHN BANNISTEE GIBSON.
[1841-1850.]
Commonwealth v. Mosler. — On moral and mental insanity
in cases of homicide 405
Commonwealth v. Harman. — Value of circumstantial evi-
dence in cases of homicide 411
School Directors v. James. — Domicil of child after pa-
rent's death not necessarily the domicil of the guardian 416
De Chastellux v. Fairchild. — Granting new trial a judi-
cial, not a legislative act 421
LOED CAMPBELL.
[1844.]
The Queen v. Millis. — On the validity at common law, of
marriages not solemnized by a priest .... 435
JOSEPH STOEY.
[1844.1
Vidal v. Girard's Executors- — On charitable uses, elee-
mosynary grants, and the legal status of Christianity , 471
EUGENIUS A. NISBET.
[1849.]
Culbreath v. Culbreath. — When the court will relieve
against a mistake of law 505
CONTENTS. IX
LEMUEL SHAW.
[1851-1859.]
PAGE
May v. Breed. — On the comity of States as to the validity
of a foreign discharge in bankruptcy . . . .5^9
Commonwealth v. Temple. — Public use in the highway
subordinate to new use granted to street railways . 540
BENJAMIN E. OUETIS.
[1851-1853.]
United States v. Morris. — The jury in Federal Courts are
not judges of the law in criminal .cases, but of the fact
only 551
United States v. McGlue. — Delirium tremens, as dis-
tinguished from drunken madness, a defense to homi-
cide 568
Hennessey v. The Ship Versailles. — Maritime law. — Prin-
ciples governing the law of salvage . . . •582
JEEEMIAH S. BLACK.
[1853.]
Sharpless v. The Mayor. — On the power of the legislature
to authorize a municipality to borrow money for pub-
lic improvements 593
LOED BLAOKBUEN.
[1866.]
Fletcher v. Rylands. — On the maxim, " Sic utere tuo ut
alienum non Icedas" 621
SALMON P. CHASE.
[1868.]
Texas v. White. — On the indestructibility and perpetuity of
the Federal Union 635
GEOEGE SHAESWOOD.
[1871.]
Palairet's Appeal. — On the power of the Legislature to
extinguish perpetual rents 659
DANIEL AGNEW.
[1871.]
Palairet's' Appeal. — On the power of the Legislature to
extinguish perpetual rents 676
X CONTENTS.
THOMAS M. OOOLEY.
People v. Common Council of Detroit. — On the power
of the State to interfere with local self-government . 685
MOEEISON E. WAITE.
[1877-1878.]
Pensacola Telegraph Co. v. Western Union Telegraph
Co. — On inter-State commerce, and the power of
Congress over the telegraph 707
Reynolds v. United States. — The crime of polygamy not
excusable on the ground of religious belief . . .716
LOGAN E. BLECKLEY.
[1878-1879.]
Western Railroad v. Thornton. — On the law of garnish-
ment as against foreign corporation as bailee . . 735
Early v. Oliver. — Power of the Court to abridge argument
in interlocutory proceeding ..... 745
SIE JAMES FITZJAMES STEPHEN.
[1880.]
Attorney-General v. Edison Telephone Co. — On exclu-
sive right of the postmaster-general to use of telephone ■
in the postal service . . . . . . . 753
Conduct and Demeanor of the Judge — Lord Bacon . . 52
The Development of Social Order — Hon. Stanley Matthews 130
The Reason of the Uncertainty of the Law — HON. Joseph Story 252
Validity of Gifts for Advancement of Learning, and to Perpetuate
Donor's Name — Lord Chief Justice Wilmot . . 322
Wisdom and Justice of the Statute of Limitations — Hon. Joseph
Story ........ 378
The Work and Fame of the Lawyer — Hon. Richard D. Hub-
bard ........ 404.
Nature of a License as Distinguished from a Grant — Sir Edward
Hall Alderson, knt. ..... 424
Nature and Sanctity of an Oath— Lord Chief Justice Willes 504
Liability of Judicial Officer. Absence as Distinguished from Ex-
cess of Jurisdiction — Hon. Stephen J. Field . . 550
Distinct Powers Conferred on Co-ordinate Branches of Govern-
ment— Hon. Samuel F. Miller .... 634
Public Franchises Subject Always to Legislative Control — LORD
Chief Justice Hale. ..... 658
Dignity and Importance of the Law — David Hoffman . 684
The Science of Jurisprudence — Sir William Jones . . 734
IMPOETANT JUDICIAL DECISIONS
BY EMINENT JUDGES.
INTEODUCTION.
The aim and purpose of the lawyer is to ascertain what the
law is, and the measure of his professional success will depend
largely upon his ability to master this inquiry. He must be-
come familiar with abstract principles, the causes which give
rise to them, and the reasons upon which they rest ; and hav-
ing acquired sufficient knowledge of fundamental rules, he
must possess also intelligence to apply them accurately to the
facts which arise in particular cases. Complete legal training
further demands the ability to ascertain facts, as well as law.
This branch of professional skUl, however, can only be acquired
by experience. How to draw facts from the mouth of a wit-
ness, either upon direct or cross-examination, cannot be learned
from the pages of any book ; but it is absolutely necessary that
the examiner should possess a knowledge of the law, so that he
will know how to take advantage of the testimony, and dis-
criminate as to its value and importance. Knowledge of legal
principles, therefore, is the first great requisite upon which to
build a professional reputation, and is absolutely essential.
But the law can only be thoroughly understood by becoming
familiar with the great opinions which have been pronounced
from time to time, and in which are gradually unfolded its
growth and history, and the reason and philosophy which lie at
the foundation of all legal science.
The elementary principles of law are the result of wisdom
and experience. Customs, manners, and habits change with the
generations ; methods and forms of procedure, the application
of remedies, and the nature sometimes of those remedies, change
with the rolling years and the development of the sciences.
Things which come to be irksome, odious, unaccommodating, ill
adapted to the wants of society, drop out and become obsolete.
But the great principles of justice and right, to be applied in
[xiii]
^^ INTKODUCTION
measuring human obligation and responsibility, either as be-
tween private persons, or as between the State and the indi-
vidual, — these principles are fixed and eternal, and changeless as
the physical laws of the universe. " It is the great merit of
the common law," says Chief Justice Shaw, "that it is founded
upon a comparatively few broad principles of justice, fitness, and
expediency, the correctness of which is generally acknowledged,
and which at first are few and simple, but which, carried out
in their practical detail, and adapted to extremely complicated
cases of fact, give rise to many and often perplexing questions.
Yet these original principles remain fixed, and are generally
comprehensive enough to adapt themselves to new institutions
and conditions of society, new modes of commerce, new usages
and practices, as the progress of society in the advancement of
civilization may require." *
It would be natural, therefore, for the student to inquire,
whence doth the law spring, and what the source and fountain
of this great science ? There are three sources from which the
law is derived : custom or usage, the parliament or legislature,
and the judiciary. In other words, law is made either by cus-
tom, by written statutes, or by judicial decisions. But the lat-
ter often embraces the former, since the effect and limitation
of custom must be judicially ascertained ; statutes must be fre-
quently construed, and this duty devolves upon the court,
whose opinion is recorded, and stands as precedent and au-
thority.
The judgments, therefore, which have from time to time
been pronounced by the eminent men who have adorned the
bench in England and America for more than three centuries,
are of the utmost importance, for in those judgments the prin-
ciples of the law are illustrated and preserved; and much
which has been declared by these great magistrates, is authority
to-day, touching those matters which have not been superseded
by positive statutes. Lord Holt, nearly two hundred years
ago, laid down the principles of the law of bailments with
clearness and accuracy ; and his famous opinion f is daily re-
ferred to as comprehending the subject. Lord Mansfield,
* Commonwealth v. Temple, page 640. f CoggB v. Bernard, page 40.
IN*rRODUCTION, XT
some years later, illustrated the rules governing statements and
disclosures which are essential in entering into contracts of ma-
rine insurance ; and the reason and wisdom of the principles
advanced by the great judge * are applauded as embracing the
soundest reason and morality. The judgments of Lord Haed-
wiCKB are admired and justly regarded as containing the doc-
trines upon which courts of equity will grant relief. Upon ques-
tions of commercial law, equity, public policy, or international
comity, the opinions pronounced by Mansfield, Haedwicke,
Kenton, Eldon, Kedesdale, Brougham, Ellbnboeough, Pak-
SONS, Maeshall, Kent, Stoet, Cuetis, Shaw, Gibson, Black,
CooLEY, and others equally famous, are regarded with respect and
veneration, and in them will be found not only legal principles,
but the reason and philosophy upon which those principles rest.
From these great judgments the student will ascertain what
the law is, and why it is so. It is indeed a fact, that a great
part of the lawyer's time is spent in reading, analyzing, studying,
and digesting the written decisions of famous judges who have,
from time to time, contributed to the development of legal
science, and assisted in promulgating and illustrating its primal
doctrines.
The most fascinating department of professional learning,
however, is that which relates to constitutional and international
law — a branch of jurisprudence which has attained a new inter-
est and most absorbing importance in America since the Kevo-
lution. The genius and wisdom of the men who framed the
constitution of the United States, and supplied half a continent
with a democratic-republican government, strong enough and
broad enough to comprehend many sovereignties beneath one
protecting arch, commanded the applause and admiration of
mankind. In framing the government of the United States,
"Washington, Hamilton, Adams, Madison, and their associates,
accomplished the most successful and important act which the
world has ever seen. Their work has stood the test. Neither
invasions, insurrection, nor revolution, have been able to shake
its strength, or impair the integrity of the grand structure.
The relations between the States and the Federal government,
* Carter v. Boehm, page 84.
XVI INTEODUCTION.
under the constitution, have been ascertained and declared by
the judgments rendered in the Supreme Court of the United
States. Marshall, Tanet, Chase, "Waite, and their associates,
are names regarded with reverence, in view of the lasting and
important benefits which they have conferred by their veise
and benign judgments ; and many of the absorbing questions
discussed in the high tribunal over which they presided, have
been settled by the sword, and form part of the nation's
history.
With the inventive genius of the age, and the rapid
growth and prosperity which followed in the wake of desolat-
ing war, new fields of enterprise have opened. Railroads,
telegraphs, telephones, and many modem improvements and
conveniences, have attracted the ambition of men. A tide
of immigration to these shores, which has no parallel, gave
fresh impetus and stimulus to trade and commerce. Cities
and towns have sprung into existence almost in a night. In
developing the agricultural and mineral products of the rich-
est and greatest country on the globe, means of communication
and transportation became absolutely essential. Enterprising
individuals sought public aid in constructing and operating
public highways, and from the treasuries of State and Nation a
liberal people poured the public wealth, and conferred great
areas of the public domain in assisting to construct railroads
and telegraphs to be used in the interest and for the benefit of all.
Franchises and privileges of untold value have been bestowed
freely upon chartered bodies, who have undertaken to construct
and manage these public improvements; some of which,
more powerful and influential than others, have succeeded
in destroying or absorbing their weaker rivals, until the
work of concentration and consolidation has almost reached a
climax ; and the people find themselves face to face with the
question as to the mode in which these powerful corporations
shall be managed and controlled by the State. How far must
private right yield to the encroachments of corporate power?
How far can the State limit and control bodies of its own crea-
tion, which have come to wield such wealth and influence as
would seem almost to threaten the government itself 1 These
legal problems are now pressing for solution, and the time has
INTRODUCTION. XVU
come for the great struggle between the State and the formida-
ble corporations which it has created and fostered with public
money and public lands.
Then, as to the State and municipal corporations, what is
the relation which exists between them, and how far can the
legislature interfere with local self-government, by compulsory
authority ? Under what circumstances can the State arbitrarily
authorize a municipality to levy taxes for public improve-
ments ? This. interesting inquiry is discussed with great learn-
ing and ability by Hon. Thomas M. Coolet, of Michigan, and
Hon. Jekemiah S. Blaok, of Pennsylvania, whose opinions will
be found in this volume.
The student will perceive at once the important questions
which have grown up within the domain of jurisprudence in a
comparatively short time. Questions as to the form of the
remedy, or the exact words in which a pleading ought to be
framed, have disappeared almost entirely, and given place to in-
quiries of far greater magnitude and importance. A reference
to the judgment rendered by Chief Justice Parsons, in Coffin
V. Coffin, or that of Fitzjames Stephen, on the right of the
government to control all means of communications by electric
signals, or of Chief Justice Waite, on inter-State commerce
and the power of congress to control the telegraph, wiU suffice
to illustrate this proposition.
Aside from these important inquiries, involving the powera
and destinies, the success and welfare of cities and States, what
are the rules which govern the private relations between man
and man, and what is the theory, origin, and idea of the law ?
How did it grow, and how can we trace the silver thread of
justice and reason which has existed from time immemorial?
What is the philosophy of -the law ?
The object and purpose of law is to enforce liability. In-
jury is sustained. The inquiry which the law makes is, who is
to blame ? It may be said that injury imports liability, which
is either cifil or criminal, public or private. If one is injured
by the default or negligence of another, either in person or es-
tate, he appeals to the law to compel the delinquent to respond
in damages, and make good the loss. It is one individual seek-
B
xviu INTRODirCTION.
ing redress against another for a private wrong. So when
crime is committed, the entire community suflEers, since the
law is framed to protect every citizen alike, and to secure his
safety and happiness ; and all have, therefore, an equal interest
in enforcing the liability and meting out the punishment ; for
the public is interested in preventing a repetition of crime.
An able writer, in a recent work on the Common Law,*
ascribes the origin and purpose of the law to vengeance, and
this observation is borne out by the facts. And what was
true in this connection in primitive times, is still true in some
respects ; though the result of popular education, through the
modern system of common sdiools, has contributed largely to
dispel the clouds of ignorance and superstition which prevailed
in the dark ages, and has led to a reformation as to the theory
of crimes and punishments. The masses have come to be a
reading public, able to comprehend and study for themselves,
instead of having a privileged class to do their thinking for
them. The lessons of charity and humanity so admirably set
forth in the New Testament scriptures, have been generally
disseminated and inculcated, and men have thereby been lifted
to a higher plane, and have learned to admire virtue and
philanthropy, and to revere the memory of those who have
devoted their lives to the amelioration of the race, until a
better nature has entered, like leaven, into the great mass of
society. The consequence has been the presence of a broader
spirit of humanity in all the affairs of life, which has tended to
temper and soften the rigor and cruelty of the law in many
respects, so that the element of torture has gradually disap-
peared, and the theory of punishment has come more and more
to be regarded in its proper light, as a warning and solemn ad-
monition for the prevention of crime ; and the idea which now
largely prevails is that punishment ought never to be inflicted
for purposes of vengeance or retaliation.
But it is doubtless true, that, in the past, revenge was, and
still is in a modified sense, the prominent characteristic of the
law, because, under certain conditions of society, pi*mpt ven-
geance is the only remedy by which crime can be prevented ;
* The Common Law, by 0. W. Holmes, Jr.
INTRODUCTION. XIX
and, in punishing crime, men simply act in accordance with the
law of nature, and are actuated largely by motives of self-pres-
ervation. Among savages, or in localities where no system of
law prevails, retribution is administered spontaneously, without
method or order ; while this unpleasant duty, among enlight-
ened nations, is delegated to the sheriff or hangman, who per-
forms it with a ceremony to which a sort of ghastly dignity
attaches. But vengeance falls upon the head of the offender
alike in barbarous and enlightened countries. This spirit of re-
venge is everywhere prominent in the laws of the ancients ;
and mars the early common law of England.
The cruelty of the old Greek statutes, is indicated in the
tradition that. Deaco's laws were written in blood; and what
can be more horrible than the butchery which- it is said was
sanctioned by the law of the Twelve Tables, which allowed the
creditor to cut the body of the unfortunate debtor in pieces, so
that each might take his proportionate share of quivering flesh ;
or, what was in some respects even worse, allowed the creditor
to imprison his body in chains, subject him to stripes and hard
labor, and even in some cases permitted him to sell not only the
bankrupt, but also his wife and helpless children, into perpetual
slavery. This is vengeance, not law. Parricide is indeed a
horrible crime ; but imagine the cruel depravity of a people
who invented a punishment so severe and inhuman as that to
be found in the Roman law, which directed that the prisoner,
upon conviction, be first scourged, and then sewed up in a
leathern sack, with a live dog, a coct, a viper, and an ape, and
so cast into the sea.*
And this theory of cruelty and retaliation is a prominent
feature in the Levitical law, in which it is written : " If men
strive, and hurt a woman with child, so that her fruit depart
from her, and yet no mischief follow : he shall be surely pun-
ished, according as the woman's .husband will lay upon him ;
and he shall pay as the judges determine. And if any mischief
follow, then thou shalt give life for life, eye for eye, tooth
for tooth, hand for hand, foot for foot, burning for burning,
wound for wound, stripe for stripe." f But this law went fur-
ther, and visited punishment even upon the dumb brutes, and
*Blackstone, Book IV, p. 202. f Exodua xxi, 22-26.
XX INTKODirCTION.
if scienter was shown, then upon both the animal and its
owner, as it is written : " If an ox gore a man or a woman, that
they die ; then the ox shall be surely stoned, and his flesh shall
not be eaten ; but the owner of the ox shall be quit. But if the
ox were wont to push with his horn in times past, and it hath
been testified to his owner, and he hath not kept him in, but
that he hath killed a man or a woman ; the ox shall be stoned,
and his owner also shall be put to death." * And the ecclesias-
tical courts on the continent, during the middle ages, occupied
their precious time in excommunicating bugs, flies, leeches, lo-
custs, and caterpillars, but where the animal was capable of
physical seizure, its body was produced in court, counsel were
appointed to defend, the beasts were tried with due solemnity,
sentence was deliberately and formally pronounced, and the
unfortunate brutes were executed, sometimes under circumstan-
ces of extreme cruelty.f Emil Agnel, in his curious collection
of trials of animals, has recorded a number of these absurd and
inhuman exhibitions. At Fontenay-Aux-Koses, near Paris, as
early as 1266, a hog was burned for having eaten a child. In
1404, three pigs were executed at Eonvers, in Burgundy, for
having- devoured a baby in its cradle, and on the 13th of July,
1408, the death penalty was pronounced against a hog for a like
offense. The sentence imposed upon condemned animals was
executed publicly, with great pomp and solemnity, and the execu-
tions were witnessed by thousands. The poor brutes were
usually clad in garments conspicuous with bright colors, and were
often decorated with scarfs and ribbons, and paraded through the
streets, and conducted with great ceremony to the place of exe-
cution ; and one case is recorded, on the 18th of April, 1499,
where the death warrant was read to the animal before being led
to the scaffold. As late as 1389, at Dijon, a horse was con-
demned and executed for kicking a man to death.
It was not easy, howevei;, to seize the swarms of flies, lo-
custs, birds, or the worms, slugs, rats, moles, or insects which
destroyed the products of the soil. But a most absurd remedy
was invented by the ecclesiastical tribunals, which fulminated
their anathemas against them, the offenders being regarded as
emissaries of the devil and enemies of mankind. Strange as
* Exodus xxi, 28, 29. \ Agnel'a Procda Contre les Animaux.
INTRODUCTION ^^1
it may seem, very learned and elaborate arguments are still pre-
served, which were urged in behalf of the absent mischief-
makers, and cases are recorded where the plea for mercy was
successful, and the insects escaped without the brand of the
church's displeasure. One instance of this kind was at May-
ence, where it was sought to curse certain Spanish flies, and a
plea, which finally prevailed, was urged in their behalf, on ac-
count of their extreme youth, and the smallness of their bodies.
^Nothing however is recorded upon the subject as to who re-
tained or paid counsel to defend the unconscious and guileless
defendants.
When the English Common Law is examined, this theory of
vengeance and retaliation is clearly traced. If a man violently
attacked another, and deprived him of any member which would
render the individual less able, in fighting, either to defend him-
self or annoy his adversary, the crime was denominated may-
hem, and was punished by a forfeiture of member for member.
The origin of the term mayhem is considered by Chief Justice
Pabsons in Commonwealth v. Newell, given in this work.
The rack, which may be said to be a synonym for vengeance,
was a favorite instrument of torture as late as the days of Lord
Coke, and was constantly resorted to in the courts, until com-
paratively recent times. Think of a man possessed of the in-
telligence and intellect of Bacon, in poor old Peacham's case
— ^Peacham, who never harmed or intended harm to a living
soul ; think of Bacon stating to the king, in all seriousness,
that he had examined Peacham "before torture, in torture, be-
tween torture, and after torture." * From these gloomy re-
cords one would indeed suppose that "man was made to
mourn." But, after all, it is only a view of "man's inhu-
manity to man," that forced that declaration from the Scottish
bard. Man was created for a grander and nobler object — to
fulfill a higher and nobler mission ; but the cruelty and op-
pression which have so long existed in the world, have retarded
and almost defeated the object of his creation. " The pursuit
of happiness " is the inalienable right of every mortal born into
the world, and man's hjghest earthly ambition ought to be to
protect and preserve that simple, natural right. From the
* Lives of the Chief Justices, Vol. I, p. 286.
xxn INTRODUCTION.
black history of former times, and in view of the variety and
refined cruelty adapted to particular crimes, the conclusion is
justified that in the past the primary object of human tribunals
was to mete out vengeance for wrongs inflicted.
But it is a glorious truth, that as the world grows older it
grows better. The rack and the thumbscrew have been abol-
ished, and since the disappearance of the old institution of
the wager of battle, and the law which required an eye for an
eye and a tooth for a tooth, the enforcement of civil rights can
no longer be regarded in the light of revenge. Many a pious
litigant would be horrified at such an idea, and might quote
from the sacred passage, where it is written, "vengeance is
mine, I will repay, saith the Lord." They will contend with
milder phrase that the object of the law is to furnish remedies,
and the maxim is old — ubi jus, ibi remedium. But this was,
in former times, almost an empty saying, because much injus-
tice and oppression arose solely from the fact that remedies
were often ineffectual, crude, and imperfect, or did not exist at
all ; and the aim of modern reformers has been directed mainly
to furnishing more ample and perfect remedies. The general
principles of the law governing contracts and obligations, where
the liability springs from the settled distinctions between right
and wrong, remain much the same. And, in this respect, what
has been declared by Coke, and Holt, and Maitsfield, and
Haedwicke, is law, to-day.
But the forms of procedure and modes of enforcing civil
rights have undergone great changes, which have produced cor-
responding benefits. Where one throws a lighted squib, which
finally explodes and puts out his neighbor's eye, it is no longer
necessary, where codes have been introduced, to waste time,
and lie about the matter, by pleading that the defendant made
an assault upon the plaintiff with force and ai-ms, to wit, with
sticks, staves, clubs, and fists. The pleader is now required to
state the facts constituting his cause of action, without unneces-
sary repetition. The distinction as to the form of the action
having been abolished in many States, the embarrassment whicli
gave Sir William Blackstone so much solicitude, in Scott v.
Shepherd,* and caused him to dissent from his learned associ-
•Pase 116.
INTRODUCTION. XXlll
ates, is obviated, and the only question in such cases now is,
not whether the pleader should have declared in "case" or
" trespass," but whether the cause of the injury is or is not too
remote to create liability.
Although great improvements have been eflEected in matters
of procedure, even greater reforms have been made in correct-
ing the body of the substantive law. The entire system relat-
ing to the ownership, descent, and tenure of landed estates, has
undergone a complete revolution. The mode in which lands
were held in feudal times, while it suited the barbarous and
half civilized condition of the middle ages, and was, in some
respects, essential to the safety and well-being of the State as it
then existed, became oppressive and burdensome. Even the
abolition of military tenures, at the period of the Restoration,
was only a step in the right direction. The feudal system is an
anachronism which, in this age of the world, is productive only
of wrong and injustice. The land could not be sold to pay the
debts of the owner, for theoretically there was no owner but
the crown. And the rule which entitled the eldest son, and in
some localities the youngest son, to inherit his father's estates,
to the exclusion of equally deserving brothers and sisters, while
it operated to support a splendid aristocracy, worked wrong and
injustice. Even in America, during the colonial period, land,
though supposed to be allodial, could be entailed, and hampered
with all sorts of conditions and restrictions, so as to hinder its use
and enjoyment for generations ; and this last curse of the old feu-
dal times, which was fastened to land before the revolution, exists,
at the present day, in many of the older States of the Union.
In Pennsylvania the legislature attempted, by a liberal stat-
ute, to sweep away this last vestige of the old Anglo-Norman
monarchy, and passed a law providing for the extinguishment
of perpetual rents, upon payment of a sum aggregating the
value of the same during the life-time of the owner and twen-
ty-one years thereafter, but the act was declared unconstitu-
tional by a divided court. The views upon both sides of this
important controversy will be found in the opinions rendered
by Hon. Geokge Shaeswood, and Hon. Daniel Agnew, in the
following pages.* With this single exception, however, there
* Palairet's Appeal, page 659.
XXIV INTRODUCTION.
has been a complete revolution in this branch of the law. The
old system, fostered by greed and selfishness, has at last disap-
peared, and the legislature has put it beyond the power of own-
ers to lock up their estates so as to suspend the power of alien-
ation for a longer time than existing lives and twenty-one years
thereafter. In America, primogeniture and joint-tenancy are
forbidden, and much of the learning of Coke and Littleton,
upon this abstruse branch of the law, has become obsolete.
The law with regard to the property rights of married
women has also been changed. The old system extinguished
woman's legal existence upon her marriage, and allowed the
husband alone the use and enjoyment of her estates during his
life, and gave him the absolute ownership of her personalty.
This unfair and inequitable rule has also been swept away, and
the rights of women are now fully recognized and protected.
Curious as it may seem, attempts have been made to ignore
woman entirely, even while unmarried. In the case of " The
Jane and Matilda," counsel sought to prevail upon Lord Stowell
to exclude payment to a female mariner, solely upon the ground
that she was a woman. Lord Stowell's opinion on this inter-
esting subject, which wiU be found in this work, holds that a
woman, even in his time, has some rights which the opposite
sex were bound to respect.
Thus it will be seen that the science of jurisprudence is a
progressive science, which has kept pace with the growth and
development of civilization ; and its broad, underlying princi-
ples wiU be found suificiently ample to accommodate them-
selves to every condition imposed by the changes of time and
circumstances. Through wise legislation and interpretation, the
law will grow and develop into a more perfect and harmoni-
ous system, and will finally overcome every obstacle and every
barrier which results from superstition, prejudice, and igno-
rance, and operate as a shield for the protection of all, without
regard to race, sex, or condition.
W. L. S.
New Yobk, March, 1883.
GEEAT OPINIONS BY GEEAT JUDGES.
SIR EDWARD COKE.
Sm Edward Coke was bom on the first of February, 1551, at Mileham,
in the county of Norfolk, and died at his residence at Stoke on the third of
September, 1634, in the eighty-third year of his age. It is a singular fact
that, since the sages of antiquity, the three men whose names are preeminent
in the several departments of learning in which they excelled, should have
come into the world about the same time, and lived together as members of
the same community — William Shakespeare, the greatest of English bards;
Francis Bacon, renowned in scholarship, useful learning and experimental
philosophy; and Sir Edward Coke, who, in his day and age, was indeed the
greatest oracle of our municipal jurisprudence. It is a fact not less singular,
perhaps, that these distinguished men entertained neither love nor respect
for one another. Coke despised Shakespeare and hated Bacon, while the
latter bent his energies to compass the ruin of his great rival. When the
student comes to look into the biography of the two distinguished men
last mentioned, he will be shocked to learn of the servility, baseness and
corruption of the one, and the malicious cruelty and virulence of the other.
Bacon was the fawning tool of James I, and the chief flatterer and sy-
cophant at his court. He sustained that arrogant sovereign in the unlawful
acts and proceedings by which he sought to establish in England an absolute
monarchy. When James undertook to deprive his subjects of their prop-
erty, their liberty or their lives, by an absolute flat, without legal process or
investigation, it was Bacon who advised him that.his authority was by divine
rightj and that any course he might choose to pursue was, therefore, per-
fectly proper. When James assumed to create statutes or alter or repeW
them at will, by Ids naked proclamation, made without recognizing any
co-ordinate branch of his government, and without deigning to consult or
convene his parliament, it was Bacon who advised him that his prerogative
was sufficiently ample to justify his arbitrary measures. When James boldly
commanded the judges of the courts to desist and refrain from proceeding
in any cause, civil or criminal, in which he imagined the subject of his pre-
rogative was involved, and to await his majesty's pleasure, it was Bacon who
advised him that such was his right, and that in the exercise of such power
he was justifled by law. It was Bacon who allowed himself to be used as
the instrument for destroying the independence of the judiciary, and to bring
the judges into servile obedience to the king. It was Bacon who disgraced
1 [1]
2 SIR EDWARD COKE.
the marble chair, and sullied his judicial ermine. It was Bacon who took
tribes from parties in cases pending before him. It was Bacon who was im-
peached for malfeasance and corruption.
So Coke, when he was attorney-general, pursued with cruel malignity the
unfortunate defendants in the State trials conducted by him, and used every
means in his power, whether fair or foul, to send helpless prisoners to the
scaffold. It was Coke who violated all the forms, and outraged common de-
cency, in order to convict of treason Sir Walter Raleigh, one of the noblest
spirits of his age, and succeeded, against law and evidence, in accomplishing
iis ends. It was Coke who took delight in applying the rack to his victims,
and exulted in their suffering and misery. It was Coke who, after he was
•deprived of his ermine, sacrificed his own daughter, by forcing her to mari^
Sir John Villiers, to gain the favor of his sovereign, in order that he might
use it for the sole purpose of accomplishing the ruin of Bacon, his enemy
and rival.
Notwithstanding this gloomy picture, the lives of these men present an-
other aspect, which reflects upon their iriemories a lustre which will brighten
witb the ages; for both Coke and Bacon have conferred benefits upon the
race which make posterity their debtor. When the character and impor-
tance of the services which they performed for their fellow men are consid-
ered and measured, the personal vices, iniquities and crimes which marred
and discolored their lives will be forgotten. Who can calculate how much
the world owes to the genius and intellect of Francis Bacon? His fame is
more brilliant than that of his rival, for literary honors and reputation are
more glittering than distinction gained in the graver realms of jurisprudence,
though Bacon was himself a great lawyer; but it is a mistake to suppose
that the name of Bacon will survive the name of Coke. When men forget
their liberties and the forms and essence of republican government; when
superstition and ignorance push back the human mind into darkness, idola-
try and slavery; when a constitutional monarchy and a free republic become
traditions, and the reign of empire becomes universal; then, perhaps, men
shall forget the proud independence and sterling integrity of the great Eng-
lish lawyer who wrote The Petition of Right, a document as dear to the
hearts of free men as the Great Charter or the Declaration of Independence.
■The Petition of Right will render the name of Coke immortal, and will be
. read as long as mankind are instructed by the "Novum Organum,'' or the
■"De Augmentis."
When James conferred new powers upon the court of High Commission,
■by which that petty tribunal, having cognizance only in certain ecclesiasti-
cal matters, assumed to exercise general jurisdiction over all acts and offenses,
civil or criminal, and usurped the power to arrest, imprison and outlaw at
the king's pleasure, it was Sir Edward Coke who issued his writ of prohibi-
tion to restrain such high-handed proceedings ; and when the king sought
to corrupt the sturdy patriot by making him a member of the Commis-
sion, Coke indignantly refused to listen to the proposal. When James
attempted to hold court in person, on the theory that the judicial author-
ity was only delegated, and could be assumed by the crown at pleasure, it
was Sir Edward Coke who told his sovereign that the king in his own person
SIR EDWARD COKE. 3
had no right to adjudge any cause, either civil or criminal. When James at-
tempted to create laws, or alter or amend them by proclamation, it was Sir Ed-
"ward Coke who declared that " the king cannot, without parliament, change
any part of the common law, nor create any offense by his proclamation
which was not an offense before; and had no prerogative but that which the
laws of England allow him." When James commanded the court to suspend
proceedings in a civil suit, in which he imagined his prerogative was in-
volved, it was Sir Edward Coke who possessed the courage to disregard royal
interference, and to proceed to judgment. When the judges were censui-ed
lot their conduct in refusing to heed the king in this matter, it was Sir Ed-
ward Coke who, when interrogated as to his future coxurse under the same
circumstances, made the dignified answer, "whbn the case happens, I
SHALL DO THAT WHICH SHALL BE FIT FOR A JUDGE TO DO."
When the great struggle against absolute monarchy commenced — a strug-
gle which culminated in the Long Parliament, and the death of Charles I on
the block— it was Sir Edward Coke who placed himself at the head of his
countrymen, and from his seat in parliament, contended fearlessly and man-
fully for the rights and liberties of Englishmen. When James instructed the
Speaker of the House to warn that body not to meddle with anything touch-
ing the government or affairs of State, and reminded them of his power to
punish for acts done in parliament during and subsequent to its sitting, and
declared that the House had no privileges except such as were delegated by
Toyal authority, it was Sir Edward Coke that loudly protested against this
arrogant assumption of absolute power, and drew up the famous Pbotbst,
-which declared that "the liberties, franchises, privileges and jurisdiction of
parliament are the ancient and undoubted birthright and inheritance of the
subjects of England, and that every member of the House hath and of
light ought to have, freedom of speech, in all matters of State." It was upon
the recommendation of Sir Edward Coke, that the Protest was adopted by
the House, and entered upon its journals, though James afterward ripped
the record from the book, and tore the leaves in pieces with his own hand,
and ordered Coke, along with Selden, Piynne and others, to be carried pris-
oners to the Tower.
It was Sir Edward Coke who carried the act which abolished monopolies
and special privileges, and authorized the crown to grant patents, securing
to inventors for a limited time the exclusive right to their inventions.
When Charles I came to the throne, and threatened and attempted, like
his father before him, to intimidate parliament, it was Sir Edward Coke who
replied with lofty independence to the young sovereign's opening speech, and
declared that "the king cannot lawfully tax any by way of loans, for it is
against the franchise of the land for freemen to be taxed, but by their consent,
in parliament." It was Sir Edward Coke that drew the resolution which is
now the basis of the Habeas Corpus Act, declaring that no man can be detained
in prison unless the cause of his commitment be shown, and proclaiming that
the writ of habeas corpus was a writ of right, and could not be denied to any
man. It was Sir Edward Coke who refused to grant any supply to the king
unless he should affirm the great Petition of Eight, absolutely and without
condition.
4 SIR EDWARD COKE.
In that immortal statute will be found the germ of our liberties. Away
back, early in the seventeenth century, Sir Edward Coke sounded the
key note which runs through Jefferson's Declaration, the elements of which
have been incorporated in our own constitution. Had the matters set forth
in this petition taken the form of an arraignment of the king. Instead of
an humUe prayer, it would have read as follows:
The law hath declared that no man shall be compelled to pay any tax, or
to contribute any money, except by virtue of an act of parliament; that no
man shall be deprived of his life, his liberty, or his property, or denied the
protection of the laws, except by the lawful judgment of his peers, or the
law of the land.
The English king, in violation of every statute, and contrary to all laws,
has levied fines and taxes upon his people without their consent, and com-
pelled them at his pleasure to pay money without legal process or authority,
and for refusal to pay he has put them in prison, and deprived them of their
liberty, their lives and their property.
He has imprisoned Others of his subjects without showing any cause
therefor, and when they were brought up upon writs of Tiabects corpus, he has
refused to certify the cause of their detention, and re-imprisoned them with-
out preferring charges against them.
He has, by royal edict, and without giving reasons therefor, deprived his
subjects of the protection of the laws, adjudged them outlaws, and sent them
into exile. He has sent soldiers and mariners throughout the realm in time of
peace, without the consent of parliament, and compelled the inhabitants
against their will to receive them into their houses, to their grievous vexation
and annoyance, contrary to law and custom.
He has created Military Commissions and appointed swarms of officers, in
time of peace, giving to them authority to try citizens charged with common
law offenses, and has summarily put the accused to death, without legal
trial, under the forms of martial law.
His Military Commissions have protected others from punishment, and
shielded them upon the pretext that their offenses were cognizable only in
military courts, and when arraigned, he has acquitted them, contrary to jus-
tice and right, or refused absolutely to proceed against .them.
Then follows the humble prayer: Wherefore his subjects doth humbly
petition his most excellent majesty, that no tax be levied without their con-
sent in parliament ; that no man be henceforth outlawed, imprisoned or de-
tained without legal process; that the king desist from quartering his troops
upon the inhabitants, and that Military Commissions be abolished.
Much the same kind of oppression is denounced in the Declaration of In-
dependence, written only a century and a half later, in which Jefferson thus
proceeds, for even graver causes, to arraign the misdeeds and cruelties of
George III;
"He has dissolved representative houses repeatedly, for opposing with
manly firmness, his invasions on the rights of the people.
" He has refused, for a long time after such dissolutions, to cause others to
be elected, whereby the legislative powers, incapable of annihilation, have
returned to the people at large for their exercise; the State remaining, in the
meantime, exposed to all dangers of invasion from without and convulsions
within.
SIR EDWARD COKE. 5
" He has made judges dependent on his will alone, for the tenure of their
offices, and the amount and payment of their salaries.
" He has erected a multitude of new offices, and sent hither swarms of offi-
cers to harass our people, and eat out their substance.
" He has kept among us in time of peace, standing armies, without the
consent of our legislatures.
" He has affected to render the military independent of and superior to the
civil power.
'• He has combined with others to subject us to a jurisdiction foreign to
our constitution, and unacknowledged by our laws; giving his assent to their
acts of pretended legislation.
" For quartering large bodies of armed troops among us ; for protecting
them by a mock trial from punishment, for any murders which they should
commit on the "inhabitants of these States; for cutting off our trade with all
parts of the world; for imposing taxes on us without our consent; for de-
priving us. in many cases, of the benefits of trial by jury; * * * for sus-
pending our own legislatures, and declaring themselves invested with power
to legislate for us in all cases whatsoever.
" He has abdicated government here by declaring us out of his protection,
and waging war against us.
" He has plundered our seas, ravaged our coasts, burned our towns, and
destroyed the lives of our people.
" He is at this time transporting large armies of foreign mercenaries to
complete the works of death, desolation and tyranny, already begun with
circumstances of cruelty and perfidy scarcely paralleled in the most barbar-
ous ages, and totally unworthy the head of a civilized nation."
This parallel between the Petition of Eight and the Declaration of In-
dependence will suffice to show that the indignities, cruelties and usurpa-
tions which aroused the patriotism of Coke early in the seventeenth century,
are of the same character as those which inspired the patriotism of Jefferson
late in the eighteenth; though the misdeeds and crimes of George HI
were more aggravating, more extensive, and in some respects more atro-
cious than those perpetrated by either of the first monarchs of the house of
Stuart. The services, therefore, which Coke rendered to posterity are of
enduring importance, and will secure his fame forever.
Aside from his achievements as a parliamentarian, and his triumphs upon
great questions of constitutional law. Coke understood, as well as any man of
his time, the subtleties and refinements of the law of tenures, which em-
braced the most abstruse and complex learning to be met with in the great
body of the law, as evidenced by his writings, and especially in his exhaustive
Commentary upon Littleton. His reports, too, are so famous and rank so
ligh, that they were formerly cited as The Repohts, notwithstanding the
celebrated volumes of Plowden, — excellent, accurate, and full in necessary
detail; yet Coke's elaborate work, despite some inaccuracies and even inven-
tions on the author's part, were held in highest esteem, and cited as if no
others existed. Coke doubtless spent a great deal of time and labor in pre-
paring his Keports, and even took pains to "polish" them, as he himself
declares. The profound lawyer expressed such an aversion for letters, beyond
the range of his profession, that any attempt at literary finish or style in
Lis work would hardly be expected. Yet, notwithstanding his overweening
contempt for polite learning, Coke really did aspire to literary distinction, and
doubtless considered himself a finer writer than Bacon or Shakespeare. This
becomes apparent in view of the fact that he prepared a carefully written
C SIR EDWARD COKE.
preface or introduction to each of the several parts of his Eeports, couched
in a style which Colie doubtless considered exceedingly elegant. A glance
at his attempts at rhetoric will 'provoke a smile, and the man's vanity is
apparent in almost every line. These essays were, of course, always writ-
ten in Latin. I shall give a few short translated extracts, that the reader
may get some idea of Colie's literary ac(iuirements. The preface to the first
part of the Reports begins as follows:
"Nothing is or can be so fixed in mind, or fastened in memory, but in
short time is or may be loosened out of the one, and by little and little quite
lost out of the other. It is therefore necessary that memorable things should
be committed to writing (the witness of times, the life and the light of truth),
and not wholly be taken to slippery memoiy, which seldom yieldeth a cer-
tain reckoning; and herein our present time is of all that ever was to future
posterity, the most ungrateful; for they of former, though not of such flour-
ishing time, to the great benefit of themselves, of us, and our posterity, have
faithfully and carefully registered in books, as well the sayings as the doings
which were in their time worthy of note and observation; For omitting
others, and taking one example for all.'how carefully have those of our pro-
fession in former times reported to ages succeeding, the opinions, censures
and judgments of their reveread judges and sages of' the common laws, which
if they had silenced and not set forth in writing, certainly as their bodies in
the bowels of the earth are long ago consumed, so had their grave opinions,
censure and judgments been with them long since wasted and worn away
with the worm of oblivion. But we, as justly to be blamed as the thing itself
to be bewailed, having greater cause, are less careful; having better opportu-
nity, are less occasioned; and being in greater necessity, are of all others the
most negligent; whom neither the excellency and perfection of knowledge, a
thing most pleasant, nor the practice thereof in furtherance of justice, a thing
most profitable (although one great, learned, and grave man* hath made an
entrance), can, among so many in this flourishing spring-time of knowledge,
move any other to follow his example, the neglect whereof is, in my opinion,
many ways dangerous.
Who would suppose that sober, technical, lawyer Coke, who took no de-
light In the great plays written in his own' time, would deign to quote from
the great poet and dramatist of antiquity. The f oUpwing appears in part II
of the Reports:
" To the learned reader: There are (saith Euripedes) three virtues worthy
our meditation ; to honor God, our parents who begat us, nat v6/joiv rs koivovc
'EAAador, and the common laws of Greece. The like do I say to thee (gentle
reader), next to thy duty and piety to God, and his anointed, thy gracious sov-
ereign, and thy honor to thy parents, yield due reverence and obedience to the
common laws of England, for of all laws (I speak of human), these are most
equal and most certain, of greatest antiquity and least delay, and most bene-
ficial and easy to be observed; as, if the model of a preface would permit, I
could defend against any man that is not malicious without understanding;
and make manifest to any of judgment and indifferency, by proofs pregnant
and demonstrative, and by records and testimonies luculent and irrefragable.
Bed sunt quidamfastidiosi, quinesdo quo malo affectu odentnt artes antequam
pernoveruni. There is no jewel in the world comparable to learning ; no learn-
ing so excellent, both for prince and subject, as knowledge of laws; and no
knowledge of any laws (I speak of human) so necessary for all estates, and
for all causes, concerning goods, lands, or life, as the common laws of Eng-
land. If the beauty of other countries be faded and wasted with bloody
* Edmund Plowden,
SIR EDWARD COKE. 7
wars, thank God for the admirable peace wherein this realm hath long flour-
ished, under the due administration of these laws; if thou readest of the ty-
ranny of other nations, wherein powerful will and pleasure stands for law and
reason, and where upon conceit of mislike, men are suddenly poisoned, or
otherwise murdered, and never called to answer. Praise God for the Justice
of the gracious sovereign,* who (to the world's admiration) governeth her
people by God's goodness, in peace and prosperity by these laws, and pun-
isheth not the greatest offender, no, though his offense be crimen Icbsib majes-
tatis, treason against her sacred person, but by the just and equal proceed-
ings of law."
In the preface to the third part of his Reports, Sir Edward Coke thus
speaks of the value of correct reporting, and the object of having the work
done offlcially:
" To the end that all the judges and justices in all the several parts of the
realm might, as it were with one mouth in all men's cases, pronounce one
and the same sentence; whose learned works are extant, and digested into
nine several volumes, wherein if you observe the unity and consent of so
many several judges and courts in so many successions of ages, and the co-
herence and concordance of such infinite, several and divers cases (one, as it
were, with sweet consent and amity, proving and approving another), it may
be questioned whether the matter be worthy of greater admiration or com-
mendation; for, as in nature we see the infinite distinction of things proceed
from some unity, as many fiowers from one root, many rivers from one
fountain, many arteries in the body of man from one heart, many veins from
one liver, and many sinews from the brain, so without question, lex orta est
cum mente dimna, and this admirable unity and consent in such diversity of
things proceeds only from God, the fountain and founder of all good laws
and constitutions."
Later, in the same preface. Coke thus speaks of the origin and antiquity
of the common law:
"First, they say that Brutus, the first king of this island, as soon as he
had settled himself in his kingdom, for the safe and peaceable government of
his people, wrote a book In the Greek tongue, calling it the laws of the
Britons, and he collected the same out of the laws of the Trojans. This king,
say they, died after the creation of the world, 2860 years, and before the in-
carnation of Christ, 1103 years, Samuel then being judge of Israel. I will
not examine these things in a quo warranto; the ground thereof I think was
best known to the authors and writers of them; but that the laws of the an-
cient Britons, their contracts and other instruments, and the records and
judicial proceedings of tlieir judges, were wrote and sentenced in the Greek
tongue, it is plain and evident by proofs luculent and uncontrollable; for
proof whereof I shall be enforced only to point out the heads of some few
reasons, yet so as you may prosecute the same from the fountains themselves
at your good pleasure, and greater leisure. And, first, take a just testimony
out of the commentaries of Julius Csesar (whose relations are as true as his
style and phrase are perfect). He, in his Sixth Book of the "Wars of France,
saith, that in ancient time the nobility of France were all of two sorts,
Druides or Bquites; the one for matters of government at home, the other
for martial employments abroad. To the Druides appertained the ordering
as well of matters ecclesiastical as the administration of the laws and gov-
ernment of the commonwealth ; for so he saith, efo omnibus controversiis pub-
licis privaiisque constituunt, &c., etd quod est adm,isaum f acinus, si coede facta,
si de hmreditate, de finibus controversia est, decernunt; premia, pcenasque consti-
tuunt. Concerning the mysteries of their religion, they neither did nor
might commit them to writing; but for the dispatching and deciding of
* Queen Elizabeth.
8 SIR EDWAED COKE.
causes, as well public as private, saitli he, Oracia Mens utuntwr, they used to
do it in the Gtreek tongue, to the end that their discipline might not be made
common among the vulgar. * * * Nay their very name and appellation
may serve for a proof of the use of the Greek tongue, they being called
Druids, of on<(!»» e
erty determinable before us. Was ever such a petition heard
of in parliament, as that a man was hindered of giving his
vote, and praying them to give him remedy ? The parliament
undoubtedly would say, take your remedy at law. It is not
like the case of determining the right of election between the
candidates.
My brother Powell says that the plaintiff's right of voting
ought first to have been determined in parliament, and to that
ASHBY T. WHITE. 35
purpose cites the opinion of my Lord Hobart, 318, that the
patron may bring his action upon the case against the ordinary
after a judgment for him in a quare impedit, but not before.
It is indeed a fine opinion, but I do not know whether it Will
bear debating, or how it will prove, when it comes to be
handled. For at common law the patron had no remedy for
damages against the disturber, but the statute, 13 Ed. 1, st. 1,
c. 5, s. 8, gives him damages; but if he will not make the
bishop a party to the suit, he has lost his remedy which the
statute gives him. But in our case the plaintiff has no oppor-
tunity to have remedy elsewhere. My brother Powys has cited
the opinion of Littleton on the statute of Merton, that no action
lay upon the words, si pa/rentes conquer antur, because none had
ever been brought, yet he cannot depend upon it. Indeed,
that is an argument when it is founded upon reason, but it is
none when it is against reason. But I will consider the opinion.
Some question had arisen on the opening of that statute on
those words, siparentes conquerantur, &c., what was the mean-
ing of them, whether they meant a complaint in a court in a
judicial manner?* But it is plain the word conquerantv/r
means only siparentes lamententur, that is only a complaint in
pais, and not in a court ; for the guardian in socage shall enter
in that case, and shall have a special writ de ejectione custodioB
terrae et hosredis. But this saying has no great force ; if it had,
it would have been destructive of many new actions, which are
at this day held to be good law. The case of Hunt and Dow-
man, before mentioned, was the first action of that nature ; but
it was grounded on the common reason and the ancient justice
of the law. So the case of Turner and Sterling.
Let us consider wherein the law consists, and we shall find
it to be, not in particular instances and precedents, but in the
reason of the law, and ubi eadem ratio, ibi idem jus. This
privilege of voting does not differ from any other franchise
whatsoever. If the house of commons do determine this matter,
* That usage may explain the meaning of an ancient statute, see Rex v. Scot,
3 T. R. 604; Sheppard v. GoBnold, Vaugh. 169. In Bank of England v. Ander-
son, 3 Bing. N. C. 666, per Tindal, C. J. — " We attribute great weight to that
maxim of law, contemporanea expositio furlusima est in lege." And this is said with
reference to a statute no older than 5
with an agreement to receive back more than the principal and
legal interest in any event, then, though a contingency is
thrown in on which the whole principal and interest may be
lost by possibility, it is usurious and contrary to the statute.
On this it was insisted for the plaintiff. I will not now enter
into a critical dispute, how far any such contract, where by the
faUing out of the contingency one way or other the money
may be lost, is in strictness a loan.
The civil law has very nice and refined distinctions upon
this ; commodatum et mutuatum are there technical terms for
a loan. By the first was meant, where the things lent were to
be restored in specie^ by the second, where in genere only ; but
in both the things were to be restored in all events, and noth-
ing was to be paid for the use or hire ; which, when it was so,
was locatum et conductum by the Eoman lawyers, under which,
perhaps, all our laws woold strictly come.
But these minute distinctions upon loans are not adopted
by us, but we mix and confound their commodatum et mutua-
tum, as appears in an action upon a loan, which takes in both.
So, though interest is to be paid for it, it is with us still a loan.
3. BOTTOMET, THOUGH STEIOTLT A LOAN, IS NOT USUKIOUS.
So though money is to be advanced upon a risk, which upon
a contingency may be totally lost, it is still a loan of money ;
and all the books treating of bottomry caU it money lent on
bottomry. Besides, this is plain by the express words of the
statute 11 Hen. YII, 8, which shows they understood that an
adventure might be inserted in a contract of a loan ; and it is
observable, that this, if real and fair, exempted it from the laws
of usury, though at that time all kinds of usury or taking inter-
est was unlawful. By the law of England, therefore, the inser-
72 LORD HA.RDWICKE.
tion of a contingency will not of itself prevent a contract being
a loan.
4. AUTHOEITIES ANALYZED. ThE OONTINGENOT MUST EXTEND
BOTH TO PRINCIPAL AND ItTTEEEBT.
Consider the result of the cases cited on the statute of
usury, which I will not repeat, but only deduce proper and
natural inferences from them.
First, if there is a loan on contingency, in consideration
whereof a higher interest than the law allows is contracted for
forbearance, if the risk goes only to the interest or premium
and not to the principal also, though real and substantial risk is
inserted, it is contrary to the statute, because the money lent is
not in hazard, but safe in all events, and no regard is then had
whether the contingency is real or colorable ; as appears from
what Doddridge, J., says, in Roberts v. Tremayn, who, by the
way, takes it for granted that such a loan may be with us on
contingency.
Next, if the contingency extends to both, and there is a
higher rate than the law allows, regard is had whether a bo?ia
fide risk is created by the contingency, or whether only color-
able ; for, if so, courts of law hold it contrary to the statute,
because it is an evasion to get out of the statute, which is pro-
hibited by the law itself. Clayton's Case, 5 Co. 70, and in the
case put by Popham in Burton's Case, immediately preceding.
So in Mason y. Abdy.
But where the contingency has extended to principal and
interest both, and not colorable only, but a fair and substantial
risk is created of the whole, it takes it out of the statute ; though
called a loan, it is considered as a bargain on chance, and diflfers
little from a wager. On this depends the case of bottomry, for
I agree that the approving thereof is from there being fair con-
tracts on a real hazard, and not that they concern trade, though
trade and commerce are taken into consideration, but not alone
relied on, to support usury, for that cannot be.
5. The fact as to boerowing oe lending not conclusive on
THE question OF USURY.
The plaintiff's counsel object to this by laying stress on cer-
CHESTERFIELD v. JANSEN. ^3
tain expressions and diota of judges in some cases, that there
must be no transaction or communication of borrowing and
lending ; and care must be taken that there be no suCh ; and
therefore, as the first proposal in the present case was to borrow
money on a contract to pay two for one, it is usurious notwith-
standing the contingency thrown in. A very right answer has
been already given, that courts of justice are to regard the sub-
stance of things on a contract and not mere words, which might
be inaccurately used by the parties in private dealing. But
another answer may be given, that, in the most accurate books,
these expressions are applied to cases arising on purchase of an
annuity or sale of goods and merchandise at a premium or ad-
vanced profit beyond the rate of legal interest, in which cases
these expressions are properly applicable, but cannot be so to
loans on contingency. That is a fair, real contingency; for
there, from the nature of the thing, the communication must
be about a borrowing and lending, as is plain from the case of
bottomry, and the case put by Dodderidge, J., in terms, is of
lending 100^., &c., upon a casualty, — ^if it goes to the interest
only and not the principal, it is usury, — which he clears by the
case of bottomry. The very stating of the case on the purchase
of an annuity or sale of goods proves the truth of this.
6. Distinction between a pdhohase and a loan.
An annuity may be purchased at as low a rate as you can,
provided it was the original negotiation to purchase and sell an
annuity ; but if the treaty began about bonowing and lending,
and ends in the purchase of an annuity, it is evident that it was
only a method or contrivance to split the payment of the prin-
cipal and usurious interest into several instalments, and conse-
sequently that it was a shift, which is Fuller's Case, and Tan-
field's, 4 Leon and Noy, 151, which I take to have been on the
same deed as that in 1 Brownlow. So in the sale of goods or
merchandise it is lawful to sell as dear as you can, on a clear
bargain by the way of sale ; but if it is first proposed to bor-
row, and afterwards to sell goods beyond the market, this is
usurious, of which there are two cases in Mo. 397. The very
putting these cases shows how proper and forcible those expres-
sions of the judges before mentioned are, when used in the
74 LOED HAROWICKE.
purchase of an annuity and sale of goods, but how improper
when thrown out in eases of loans of money on contingency.
7. Equity can believe against eveey species of feattd. —
Four classes of feauds.
The second question is, supposing the first contract to be
valid in law, whether it was contrary to conscience, and to be
relieved against in this court upon any head or principle of
equity ? I will follow the prudent example of not giving any
direct and conclusive opinion. As it would be unnecessary, it
is the safest not to do it ; yet it lias been made necessary to say
something on it.
It cannot be said that such contracts deserve to be encour-
aged ; for they generally proceed from excessive prodigality on
one hand, and extortion on the other, which are vitia temporis,
and pernicious in their consequences ; and then it is the duty
of a court, if it can, to restrain them. This court has an un-
doubted jurisdiction to relieve against every species of fraud.
I. Then fraud, which is dolus malus, may be actual, arising
from facts and circumstances of imposition, which is the plain-
est case.
II. It may be apparent, from the intrinsic nature and sub-
ject of the bargain itself ; such as no man in his senses and not
under a delusion would make on the one hand, and as no hon-
est and fair man would accept on the other, which are inequita-
ble and unconscious bargains ; and of such even the common
law has taken notice ; for which, if it would not look a little lu-
dicrous, might be cited 1 Lev. 3, James v. Morgan.
III. A third kind of fraud is, which may be presumed from
the circumstances and condition of the parties contracting ; and
this goes farther than the rule of law, which is, that it must be
proved, not presumed ; but it is wisely established in this court
to prevent taking surreptitious advantage of the weakness or
necessity of another, which, knowingly to do, is equally against
conscience as to take advantage of his ignorance ; a person is
equally unable to judge for himself in one as the other.
lY. A fourth kind of fraud may be collected or inferred in
the consideration of this court, from the nature and circum-
stances of the transaction, as being an imposition and deceit on
CHESTERFIELD v. JANSEN. 75
the other persons not parties to the fraudulent agreement. It
may sound odd that an agreement may be infected by being a
deceit on others not parties ; but such there are, and against such
there has been relief. Of this kind have been marriage-brocage
contracts; neither of the parties herein being deceived, but
they tend necessarily to the deceit on the one party to the mar-
riage, or of the parent, or of the friend. So in a clandestine,
private agreement to return part of the portion of the wife, or
provision stipulated for the husband, to the parent or guardian.
In most of these cases it is done with their eyes open, and
knowing what they do ; but if there is fraud therein, the court
holds it infected thereby, and relieves. So where a debtor en-
ters, in to a deed of composition with his creditors for 10s. in the
pound, or any other rate, attended with a proviso that all cred-
itors executed this within a certain period, if the debtor pri-
vately agrees with one creditor to induce him to sign this deed,
that he will pay or secure a greater sum , in respect of his par-
ticular debt ; in this there can be no particular deceit on the
debtor, who is party thereto, Ijut it tends to deceit of the other
creditors, who relied on an equal composition, and did it out of
compassion to the debtor.* This court therefore relieves
against all such underhand bargains. So of premiums con-
tracted to be given for preferring or recommending to a public
office or employment ; none of the parties are defrauded, but
the persons having the legal appointment of these offices, are or
may be deceived thereby ; or if any person, agreeing to take the
premium, has authority to appoint the officer, it tends to public
mischief by introducing an unworthy object for an unworthy
consideration.
8. Public policy ; teue meaning of the dootbine.
These cases show what courts of equity mean, when they
profess to go on reasons drawn from public utility. To weaken
the force of such reasons they have been called political argu-
ments, and introducing politics into the decision of courts of
justice. This was showing the thing in the light which best
served the argument for the defendant, but far from the true
* 1 Wms. 768 : 1 Atk. 105.
76 LORD HARDWICKE-
one, if the word politics is taken in the common acceptation ;
but if in its true original meaning, it comprehends everything
that concerns the government of the country, of which the ad-
ministration of justice makes a considerable part, and in this
sense it is admitted always. To apply this : thus far, and in this
sense, is relief in a court of equity founded on public utility.
Particular persons in contracts shall not only transact bona fide
between themselves, but shall not transact mala fide in respect
of other persons, who stand in such a relation to either as to be
affected by the contract or the consequences of it; and as the
rest of mankind besides the parties contracting are concerned,
it is properly said to be governed on public utility.
9. Catching baegains with heies, eeveesionees oe ex-
pectajstts.
The last head of fraud, on which there has been relief, is that
which infects catching bargains with heirs, reversioners or ex-
pectants in the life of the father, &c., against which relief is
always extended. These have been generally mixed cases, com-
pounded of all or several species of fraud, there being some-
times proof of actual fraud, which is always decisive. There is
always fraud presumed or inferred from the circumstances or
condition of the parties contracting; weakness on one side,
usury on the other, or extortion or advantage taken of that
weakness. There has been always an appearance of fraud from
the nature of the bargain, which was the particular ground on
which there was relief against Pit ; there being no declaration
there of any circumvention, as appears from the book, but
merely from the intrinsic unconscionableness of the bargain.
In most of these cases have concurred deceit and illusion on
other persons not privy to the fraudulent agreement ; the father,
ancestor, or relation, from whom, was the expectation of the
estate, has been kept in the dark ; the heir or expectant has
been kept from disclosing his circumstances, and resorting to
them for advice, which might have tended to his relief and also
reformation. This misleads the ancestor, who has been seduced
to leave his estate, not to his heir or family, but to a set of art-
ful persons, who have divided the spoil beforehand.
chesterfield v. jansen. 77
10. The oonteact feee feom fraud. — Nature of post obit
contracts discussed.
Consider which of these species is ia the present case.
There is no color of evidence of actual fraud in the defendant,
who did not think he was doing anything immoral or unjust ;
although, if the declarations of Mr. Spencer can be beheved,
the defendant had a misgiving, how far it could be held good
in this court.
But though this case is clearer of actual fraud- than almost
any that has come, yet several things are insisted on for the
plaintiffs, as necessity on one side and advantage taken of it on
the other ; unconseionableness in its nature, from the terms of
payiag two for one in case of the death of an old woman the
next week or day ; that there was deceit upon her, who was in
loco parentis, from whom were his great expectations. This
was however the thing intended.
I admit also, there are more circumstances alleged on the
side of the defendant to weaken and take off, than have occurred
in most cases of this kind. Mr. Spencer was of the age of
thirty, possessed of a great estate of his own, not weak in mind,
but of good sense and parts, though iu that the witnesses differ.
If it was necessary to give an opinion upon this point, I should
consider the weight of these objections, and the answers to
them ; but as it is not, I will only consider the contingency in-
serted, which was to cure the whole.
I would not have it thought that the insertion of such a
contingency would in every case sanctify such a bai'gain. Sup-
pose such a bargain made by a son in life of his father or
grandfather, on whom was his whole dependency ; I appeal to
every one what the consequence of it would be. "Whether such
a contingency is inserted or not, it will come to the same thing ;
the creditor knowing the fund for payment, must depend on
the debtor surviving the father or grandfather, whether it is
said so or not ; and therefore I have always thought there was
great sense in what Vernon reports to be said by the court in
Bemay v. Pit, "that the expressing the death of the son in life
of the father, makes the case worse," &c.
78 LORD HARDWICKE.
I have not mentioned the reasons drawn from the discour-
agement of prodigality and preventing the ruin of families;
considerations of weight, and ingredients which the court has
often very wisely taken along with them. It is said for the de-
fendant, to be vain and wild for the court to proceed on such
principles. If it had been said it was ineffectual in many in-
stances, I should have agreed thereto ; but I cannot hold that
to be vain and wild, which the law of all countries and all wise
legislatures have endeavored at as far as possible. The senate
and law-makers in Home were not so weak as not to know that
a law to restrain prodigality, to prevent a son running in debt
in life of his father, would be vain in many cases ; yet they
made laws to this purpose, viz., the Macedonian decree, already
mentioned. Happy, if they could in some degree prevent it ;
est aliquod prodire tenus.
It is said for the defendant that this would be to assume a
legislative authority ; and that several acts of parliament have
been thought necessary to restrain and make void contracts of a
pernicious tendency to the public. What can properly be called
such an assuming in this court I utterly disclaim ; but, notwith-
standing, I shall not be afraid to exercise a jurisdiction I find
established,* and shall adhere to precedents.f As far therefore
as the court went, in Bemay v. Pit, in Twisleton v. Griffith, in
Curwyn v. Milner, and the opinion of Lord Talbot on the orig-
inal transaction,:]: in Cole v. Gibbons, so far, and as far as these
principles do naturally and justly lead, I shall not scruple to
follow. The acts of parliament instanced will be found to be
made (many of them), not for want of power in this court to
give relief in many of these contracts, but to make them void
in law, to give the party a short remedy against them.
The judgment I am going to give will not be founded upon
this ; but I have done it that the work of this day may not be
misunderstood, or precedents thought to be shaken ; not that
this establishes such a contract as is called fair, like killing
fairly in a duel, which the law does not allow as an excuse for
murder. Junct annuities and^osi ohits are grown into traffic,
which ought to abate of its fairness.
* 2 Vern. 14. \ 1 Wms. 810. % 8 Wms. 290.
CHESTERFIELD v. JANSEN. 79
11. The only question is whether the eattfioation was
wrrH knowledge and without compulsion.
As the last question, of the subsequent acts of Mr. Spencer,
this is the point on which the determination of this case will
depend; and I entirely agree with the opinion delivered
already. Had the first bond been void by the statutes of usury,
no new engagement would have made it better ; the original
would have infected it. But if a man is fully informed and
with his eyes open, he may fairly release and come to a new
agreement, and bar himself of relief, which might be had in
this court.
The material inquiry is, whether this was done after full in-
formation, freely, without compulsion, &c. ? And upon the
best consideration of the evidence, it appears to be so done, and
with fairness. First, the condition of the necessity of Mr.
Spencer was over ; for though he had no power over the capital
of this accession of estate, yet it was so great a one that Httle
more than one-third of a year's income would have paid oflE the
whole. If that, then, be a state of necessity, how far shall it be
carried ? Then, the state of expectancy was over by the death
of the duchess ; and also the danger of her coming to the knowl-
edge of his conduct and circumstances, and his fear of offending
her, which was the principal restraint upon him ; so that there
was no ancestor or relation left upon whom any deceit could be
committed in consequence of any new agreement ; and it ap-
pears that before this new bond he had sufficient notice, that he
had a chance at least, that he might have relief in equity, from
the defendant's ovra declaration to him of his doubt whether it
would be good. Lastly, there was no impediment against his
seeking relief by disclosing the whole case at that time in a
court of justice.
Under these circumstances was the new engagement, with-
out any fraud, contrivance, or surprise to draw him in, which
operates more strongly than the deed of confirmation in Cole v.
Gibbons, that it is too much to set it aside. The only differ-
ence to distinguish that from this case was, that there the re-
leasor was not in the power of the releasee ; here Mjr- Spencer
was debtor, and his creditor might immediately have distressed
80 LOED HARUWICKE.
him by an action ; but the answer is, there was neither an at-
tempt nor threat to bring an action. It is objected further, for
the plaintiffs, that Cole v. Gibbons was a single case, and there
are several precedents in which such new security and subse-
quent transaction was not sufficient to give a sanction to a de-
mand of this kind, as in Lord Ardglass v. Muschamp ; but the
circumstances there show it not to be at all applicable ; then
the confirmation in Wiseman v. Beak was still more extraordi-
nary ; and that was a very extraordinary invention of Serjeant
Philips, of a bill to be foreclosed against a relief in equity.
In both these cases the original transaction was grossly fraudu-
lent ; but I have only shown it here to be a doubtful object of
relief in this court, which surely is the most proper case of all
others to put an end to by a new engagement.
12. Costs denied in discretion oe the couet.
On the whole, therefore, the only relief is that which I am
advised to give, against the penalty of the last bond.
The only doubt which could arise on this is, as to costs, to
which the defendant is not entitled. The plaintiffs are only
executors ; they had a probable cause of litigating this contract,
which is far from deserving favor, and were in the right to
submit it to the judgment of the court ; and it is observable
that in Cole v. Gibbons, which was on this point, the bill was
dismissed without costs, and no costs given on the bill, but on
the contrary deducted. There was indeed in that case no pen-
alty, as there is here ; but still that does not take away the dis-
cretion of this court in respect of costs, according to the cir-
cumstances of the case ; and there are several cases of a bond
with a penalty disputed, where, though the costs at law will
undoubtedly follow the demand, yet, on the circumstances, costs
in this court are refused.
13, Decree to be entered for payment op judgment and
interest.
Therefore let it be referred to the master to take an account
of the principal and interest due on the bonds of 1744, and the
judgment thereon, and to tax the defendant his costs at law ;
CHESTERFIELD v. JANSEN. 81
and an account of the money paid by Mr. Spencer to the de-
fendant ; and let that first be applied to discharge the interest,
and then to sink the principal, and all just allowances be made ;
and on payment by the plaintiffs to the defendant of what is
found due, let the defendant deliver up the bond to be can-
celled, and acknowledge satisfaction on the judgment ; but that
must be at the expense of the plaintiffs, and if the plaintiffs pay
what is so found due, let there be no costs in this court on
either side ; but otherwise let the bill be dismissed with costs.
LORD MANSFIELD.
"VTiiiMAM MuBBAT first saw the light in the Castle of Scone, at Perth, Scot-
land, on the 2d of March, 1705, and at the age of fifty became Chief Justice
of England, and was raised to the peerage by the title of Baron Mansfield, of
Mansfield. When prejudice and factional hatred shall have faded, and time
has obliterated the bitter jealousy engendered by burning political controver-
sies, which have left marks and scars upon the page of history, despite the
acrid criticisms and aspersions cast upon the character and abilities of this dis-
tinguished man, posterity will recognize in Lord Mansfield the greatest com-
mon law judge that ever sat in England, and future generations will appre-
•ciate the value of the services which he rendered in molding the commercial
and maritime law, which to-day forms part of our own system of jurispru-
•dence. It is true that Mansfield was a Jacobite, and adhered to the interests
•of the hated Stewarts, until he perceived that his future prospects and suc-
'cess required a change of his political faith, when he became a supporter
of the house of Hanover and an ardent tory. He subjected himself,
therefore, to all the abuse which an ardent tory deserved at the hands of
-his independent, spirited, and liberty-loving opponents. The wrath of
■Junius, and scathing arraignment which he received at the hands of Chatham
-and Camden, were legitimate results of his political course ; and his bitter
•opposition to the cause of the struggling colonies likewise subjected him to
•the hatred and contempt of every American patriot; and there were conse-
•quently few in America who could estimate with impartiality his genius and
acquirements as a judge and a lawyer.
The unfortimate controversy in Shelly'a case, which created such com-
motion in Westminster Hall in the time of Elizabeth, and which afterwards
was renewed with so much vigor in the case of Perrin v. Blake, involved the
good name of Mansfield in his contention with Mr. Pearne, the author of the
famous essay on contingent remainders, and cast a shadow upon his pro-
fessional reputation. But after all, the spots upon the sun only serve to re-
flect its brightness with greater splendor. At this distance of time, the rep-
utation of Lord Mansfield as a great lawyer loses none of its lustre, and he is
regarded as the founder of our system of commercial and maritime law,
"which he may justly be said to have created. The common law of England,
when he came upon the bench, consisted of an elaborate system of convey-
-ancing, rendered complex and diflScult by the long struggle between the
crown and the clergy, in the attempt of the latter to evade the various statutes
against mortmain ; a system which involved the most subtle learning and
artificial rules of construction. But the manufacturing and commercial in-
terests which had developed with the rise and growth of the British empire,
which since the time of the Plantagenets had come to be the greatest of all
mercantile countries, found no system of jurisprudence adapted to its neces-
sities. There were no treatises and no guides to be found in the common law.
J'rom the Roman code, and the text of the continental wiiters, Mansfield,
[82]
LORD MANSFIELD. 83
in the language of Lord Campbell, "grafted new shoots of great value on
the barren branches of the Saxon juridical tree, though he never injured its
Toots, and allowed this vigorous stock to bear the native and racy fruits for
"Which it has been justly renowned."
Judge Story regarded Lord Mansfield as the author, in a great measure, of
the commercial law of England, which he esteems as a system of great beauty
find equity. The following graceful tribute was paid to his memory by the
■distinguidied American jurist:
"England and America and the civilized world lie under the deepest ob-
ligations to him. Wherever commerce shall extend its social influences;
"wherever justice shall be administered by enlightened and liberal rules;
wherever contracts shall be expounded upon the eternal principles of right
and wrong; wherever moral delicacy and judicial refinement shall be infused
into the municipal code, at once to persuade men to be honest, and to keep
them so ; wherever the intercourses of mankind shall aim at something more
elevated than that groveling spirit of barter in which meanness and avarice
and fraud strive for the mastery over ignorance, credulity, and folly, the
name of Lord Mansfield will be held in reverence by the good and the wise,
by the honest merchant, the enlightened lawyer, the just statesman, and the
conscientious judge. The maxims of maritime jurisprudence, which he en-
^afted into the stock of the common law, are not the exclusive property of
a single age or nation, but the common property of all times and all countries.
They are built upon the most comprehensive principles and the most en-
lightened experience of mankind. He designed them to be of universal
application, considering, as he himself has declared, the maritime law to be
not the law of, a particular country, but the general law of nations. And
such under his administration it became, as his. prophetic spirit, in citing a
passage from the most eloquent and polished orator of antiquity, seems
^gently to insinuate, ' Xbn erit alia lex RorruB, alia Athenis; alia nunc, alia
posthac; sed, et ajmd omnes gentes et omni tempore, una eademque lex dbtinebit.'
He was ambitious of his noble fame, and studied deeply and diligently and
honestly to acquire it. He surveyed the commercial law of the continent,
drawing from thence what was most just, useful, and rational; and left to
the world, as the fruit of his researches, a collection of principles, unexam-
pled in extent, and unequaled in excellence. The proudest monument of
his fame is in the volumes of Burrow, and Cowper, and Douglass, which we
may fondly hope will endure an long as the language in which they are
written shall continue to instruct manldnd. His judgments should not be
merely referred to and read on the spiu: of particular occasions, but should
be studied as models of juridical reasoning and eloquence.''
Notwithstanding the consummate abilities of Mansfield, a review of his
admiralty decisions will show that they are not always in harmony. When
we consider, however, that the great English judge was compelled to mold
and adapt the law, performing the labors of a pioneer, and creating rather
than following precedents, and in view of the scanty facilities for reporting
in his time, this discrepancy is not to be wondered at. It is said that during
the thirty-two years in which he presided in the king's bench, he was but
twice reversed by the house of lords; and only two of his decisions were dis-
sented from by his associates.
84
LORD MANSFIELD.
I.
CONCEALMENTS AND DISCLOSUKES IN CON-
TRACTS OF INSURANCE.
Caeteb v. Boehm. — Eastee Teem, Mat 9, 1766.
[8 Burr., 1905.]
Analysis of Lord Mansfield's Opdsioii.
I. a contract of insurance, though specula-
tive, rests upon mutual confidence.
3. Matters upon which parties may be inno-
cently silent.
3. Reason of the rule as to disclosures and
concealments.
^ Nature and character of the contract of
insurance.
5. Policy for the benefit of governor of a
fort, good.
6. Statement of the facts disclosed by the
evidence.
7. Evidence relied on by defendants and
contents of letters which they claimed
should have been disclosed,
S. Grounds on which it was claimed the
policy was void.
9. Facts within defendant's Imowledge
or of which he had means of knowl-
edge.
10. No attack in actual operation when policy
was made.
11. Alleged concealments; condition of the
place.
13. Second concealment ; — as to probability
of a visit from the French.
13. Third concealment ;— as to design of the
French the previous year.
14. Silence as to matters of political specula^
tion and general intelligence.
15. Opinion of the broker immaterial.
16. Reason of the rule as to concealments is
to prevent fraud not to promote it.
George Carter was governor of Fort Marlborough, otherwise known as
Bencoolen, in the Island of Sumatra, in the East Indies. On the 9th of May,
1760, Koger Carter, at the instance and request and for the benefit of his
brother George, insured the fort against its being taken by a foreign enemy.
The policy was made by the defendant, Charles Boehm, at London, to run
for twelve calendar months, from October 1st, 1759, to October 1st, 1760;
interest or no interest, without benefit of salvage. Governor Carter had in
the fort at the time effects of the value of £20,000; the amount of the policy,
however, was £10,000. The rate was four per cent. In February, 1760, the
French, under the command of Count D'Bstaigne, began military operations
against Nattal, and afterwards, .with the assistance of Dutch pilots, the ad-
miral ascended the river on which Fort Marlborough was situated, and cap-
tured it on the 21st of April, 1760. The plaintiff then brought suit against
Boehm to recover the amount of the policy. The case was tried before Lord
Mansfield, at Guildhall, and resulted in verdict for the plaintiff.
At the trial it was contended, on behalf of the defendant, that the policy
was void, because the fact as to the weakness of the fort, and the probability
of its being attacked by the French, which were well known to plaintiff,
were concealed from the defendant at the time of the making of the policy,
CARTER V. BOEHM. 85
and the failure of plaintifE to disclose these facts, it was claimed was a
fraud as against the def endajjt, which vitiated the contract. In support of
his position the defendant produced two letters, written hy Governor Carter,
at Fort Marlborough, dated respectively on the 16th and 23d of September,
1759, the former directed to the East India Company, the latter to the plaintiff,
with instructions to insure the fort. The governor states to the company
that the French had, the preceding year, a design on foot to take the settle-
ment by surprise; and that it was very probable they might revive that de-
sign; that the fort was badly supplied with stores, arms, and ammunition,
and not in condition to resist an attack by a European enemy. In the letter
to his brother the governor states that he was afraid, more than formerly,
that the French would attack and take the settlement, for the reason that
not being able to render assistance to their friends on the coast, they might,
rather than lie idle, visit the fort, although no such intention existed the
previous year. He, therefore, desired his brother to take out an insurance
on his stock. It appeared that Fort Marlborough was a factory or trading
settlement, not a military post; and was built for purposes of defense against
the natives, and not to resist a foreign enemy, and the position of governor
w^as a mercantile, not a military one. The policy broker, Cawthorne, was
allowed to testify, as an expert, that, in his opinion, the letters from the gov-
ernor to the East India Company and to his brother, the plaintiff, should
have been shown, and their contents disclosed, when the policy was made.
Upon these facts the defendant moved for a new trial. The plaintiff an-
swered that the condition of the fort and the probability of an attack were
matters universally known to every member upon the Exchange in London,
and the question as to an attack was a matter purely of political speculation,
liord Mansfield sustained the judgment, and gave his reason for denying the
motion for a new trial in the following opinion. The delicacy and impor-
tance of the questions presented are handled with great ability, and the prin-
ciples enunciated have since been recognized and affirmed in a number of
cases as elementary principles in the law of insurance contracts.
LOED MANSFIELD.— This is a motion for a new trial.
In support of it, the counsel for tlie defendant contend, " That
some circumstances in the knowledge of Governor Carter, not
having been mentioned at the time the policy was underwrote,
amount to a concealment which ought, in law, to avoid the
policy."
The counsel for the plaintiff insist, " That the not mention-
ing these particulars does not amount to a concealment, which
ought in law, to avoid the policy ; either as a fraud ; or as
varying the contract."
1st. It may be proper to say something, in general, of con-
cealments which avoid a policy. 2d. To state particularly the
case now under consideration. 3d. To examine whether the
86 LORD MANSFIELD.
verdict, which finds this policy good, although the partieiilars
objected were not mentioned, is well fbunded.
1. A OONTEACT OF INSUEANCB, THOITGH SPECULATIVE, BESTS UPOIT
MUTUAL CONFIDENCE.
First. Insurance is a contract upon speculation. The special
facts, upon which the contingent chance is to be computed, lie
most commonly in the knowledge of the insured only : the un-
derwriter trusts to his representation, and proceeds upon confi-
dence that he does not keep back any circumstance in his
knowledge, to mislead the underwriter into a belief that the
circumstance does not exist, and to induce him to estimate the
risk, as if it did not exist. The keeping back such circumstance
is a fraud, and therefore the policy is void. Although the sup-
pression should happen through mistake, without any fraudulent
intention ; yet still the underwriter is deceived, and the policy
is void ; because the risk run is really different from the risk
understood and intended to be run, at the time of the agree-
ment. The policy would equally be void, against the under-
writer, if he concealed ; as, if he insured a ship on her voyage,
which he privately knew to be arrived : and an action would
lie to recover the premium. The governing principle is appli-
cable to all contracts and dealings.
Good faith forbids either .party, by concealing what he pri-
vately knows, to draw the other into a bargain, from his igno-
rance of that fact, and his believing the contrary.
2. Mattees upon which paeties mat be innocently silent.
But either party may be innocently silent, as to grounds
open to both, to exercise their judgment upon. Aliud est
cela/re/ aliud, tacere : nequeenimid est eelare quicquid rebi-
ceaSf sed cum quod tu soias, idignorare emolumenti tui causa
velis eos, quorum intersit id scire.
This definition of concealment, restrained to the efficient
motives and precise subject of any contract, will generally hold
to make it void, in favor of the party misled by his ignorance
of the thing concealed.
There are many matters, as to which the insured may be in-
CARTER V. BOEHM. 8T
nocently silent — lie need not mention what the underwriter
knows — scientia utrinque par pares Gontrahentea facit.
An underwriter cannot insist that the policy is void, because
the insured did not tell him what he actually knew ; what way
soever he came to the knowledge. The insured need not men-
tion what the underwriter ought to know ; what he takes upon
himself the knowledge of ; or what he waives being informed
of. The underwriter need not be told what lessens the risk
agreed and understood to be run by the express terms of the
policy. He need not be told general topics of speculation ; as,
for instance — ^the underwriter is bound to know every cause
which may occasion natural perils ; as, the difficulty of the voy-
age — ^the kind of seasons — the probability of lightning, hurri-
canes, earthquakes, &c. He is bound to know every cause
which may occasion political perils; from the ruptures of
states; from war, and the various operations of it. He is
bound to know the probability of safety, from the continuance
or return of peace ; from the imbecility of the enemy, through
the weakness of their councils, or their want of strength, &c.
If an underwriter insures private ships of war, by sea and
on shore, from port to port, and place to place, anywhere —
he need not be told the secret enterprises they are destined
upon ; because he knows some expedition must be in view ;
and, from the nature of his contract, without being told, he
waives the information. If he insures for three years, he need
not be told any circumstance to show it may be over in two : or
if he insures a voyage, with liberty of deviation, he need not
be told what tends to show there will be no deviation.
Men argue differently from natural phenomena, and politi-
cal appearances; they have different capacities, different de-
grees of knowledge, and different intelligence. But the means
of information and judging are open to both ; each professes
to act from his own skill and sagacity ; and therefore neither
needs to communicate to the other.
3. Reason of the ettlb as to dibolosuees and concealments.
The reason of the rule which obliges parties to disclose, is
to prevent fraud, and to encourage good faith. It is adapted
to such facts as vary the nature of the contract ; which one pri-
88 LORD MANSFIELD.
vately knows, and the other is ignorant of, and has no reason
to suspect. The question therefore must always be, "whether
there was, under all the circumstances at the time the policy
was underwritten, a fair representation, or a concealment, fraud-
ulent if designed ; or, though not designed, varying materially
the object of the policy, and changing the risk understood to
be run."
4. Nattiee and chaeaotee of the conteaot of insueance.
This brings me, in the second place, to state the cause now
under consideration. The policy is against the loss of Fort
Marlborough, from being destroyed by, taken by, or surren-
dered unto, any European enemy, between the 1st of October,
1759, and 1st of October, 1760. It was underwritten on the
9th of May, 1760.
The underwriter knew at the time that the policy was to
indemnify, to that amount, Koger Carter, the governor of
Fort Marlborough, in case the event insured against should
happen. The governor's instructions for the insurance, bearing
date at Fort Marlborough, the 22d of September, 1759, were
laid before the underwriter. Two actions upon this policy
were tried before me in the year 1762. The defendants then
knew of a letter written to the East India Company, which the
company offered to put into my hands ; but would not deliver
to the parties, because it contained some matters which they
did not think proper to be made public.
5. Policy foe the benefit of goveenoe of a foet, good.
An objection occurred to me at the trial, "whether the
policy against the loss of Fort Marlborough, for the benefit of
the governor, was good ; " upon the principle which does not
allow a sailor to insure his wages.
But considering that this place, though called a fort, was
really but a factory or settlement for trade ; and that he, though
called a governor, was really but a merchant — considering too,
that the law allows the captain of a ship to insure goods which
he has on board, or his share in the ship, if he be a part owner ;
and the captain of a privateer, if he be a part owner, to insure
CARTER V. BOEHM. 89
Ms share — considering too, that the objection did not lie, npon
any ground of justice, in the mouth of the underwriter, who
knew him to be the governor, at the time he took the premium ;
and as, with regard to principles of public convenience, the
the case so seldom happens (I never saw one before), any dan-
ger from the example is little to be apprehended — I do not
think myself warranted, upon that point, to nonsuit the
plaintiff ; especially, too, as the objection did not come from
the bar.
Though this point was mentioned, it was not insisted upon,
at the last trial ; nor has it been seriously argued upon this mo-
tion, as sufficient, alone, to vacate the policy ; and if it had, we
are aJl of opinion, " that we are not warranted to say it is void,
upon this account."
6. Statement of the facts disclosed by the evtoenoe.
Upon the plaintiff's obtaining these two verdicts, the under-
writers went to a court of equity ; where they have had an
opportunity to sift everything to the bottom, to get every dis-
covery from the governor and his brother, and to examine any
witnesses who were upon the spot. At last, after the fullest
investigation of every kind, the present action came on to be
tried at the sittings after last term.
The plaintiff proved, without contradiction, that the place
called Bencoolen, or Fort Marlborough, is a factory or settle-
ment, but no military fort or fortress. That it was not estab-
lished for a place of arms, or defense against the attacks of an
European enemy ; but merely for the purpose of trade, and of
defense against the natives. That the fort was only intended
and built with an intent to keep off the country blacks. That
the only security against European ships of war, consisted in the
difficulty of the entrance and navigation of the river, for want
of proper pilots. That the general state and condition of the
eaid fort, and of the strength thereof, was, in general, well
known by most persons conversant or acquainted with Indian
affairs, or the state of the company's factories or settlements ;
and could not be kept secret or concealed from persons who
should endeavor, by proper inquiry, to inform themselves.
That there was no apprehensions, or intelligence of any attack
90 LORD MANSFIELD.
by the French, until they attacked Nattal, in February, 1Y60.
That on the 8th of February, 1760, there was no suspicion of
any design by the French. That the governor then bought
from the witness, goods to the value of £4,000, and had goods
to the value of above £20,000, and then dealt for £50,000, and
upwards. That on the 1st of April, 1760, the fort was attacked
by a French man-of-war, of sixty-four guns, and a frigate of
twenty guns, under the Count.D'Estaigne, brought in by Dutch
pilots, unavoidably taken, and afterwards delivered to the
Dutch, and the prisoners sent to Batavia.
7. EVDDENOE BELIED ON BT DEFENDANTS AND CONTENTS OF LET-
TEES WHICH THET CLAIMED SHOULD HAVE BEEN DISCLOSED.
On the part of the defendant, after all the opportunities
of inquiry, no evidence was offered, that the French ever had
any design upon Fort Marlborough before the end of March,
1760; or that there was the least intelligence or alarm "that
they might make the attempt," till the taking of Nattal, in the
year 1760.
They did not offer to disprove the evidence that the gover-
nor had acted, as in full security, long after the month of Sep- •
tember, 1759 ; and had turned his money into goods, so late as
the 8th of February, 1760. There was no attempt to show that
he had not lost by the capture very considerably beyond the
value of the insurance.
But the defendant relied upon a letter, written to the East
India Company, bearing date the 16th of September, 1759,
which was sent to England, by the Pitt, captain "Wilson, who
arrived in May, 1760, together with the instructions for insur-
ing ; and also a letter bearing date the 22d of September, 1759,
sent to the plaintiff by the same conveyance and at the same
time. The first of these letters notifies to the East India Com-
pany, that the French had, the preceding year, a design on
foot to attempt taking that settlement by surprise ; and that it
was very probable they might revive that design. It confesses
and represents the weakness of the fort ; its being badly supplied
with stores, arms, and ammunition ; and the impracticability of
maintaining it (in its then state) against an European enemy.
The latter letter (to his brother) owns that he is " now more
CARTER V. BOEHM. 91
afraid than formerly that the French should attack and take
the settlement ; for, as they cannot muster a force to reKeve
their friends at the coast, they may, rather than remain idle, pay
us a visit. It seems they had such an intention last year." And
therefore he desires his brother to get an insurance made upon
his stock there.
They relied, too, upon the cross-examination of the broker
who negotiated the policy, " That in his opinion these letters
ought to have been shown, or the 'contents disclosed; and if
they had, the policy would not have been underwritten."
8. Geottnds on which rr was claimed the policy was void.
The defendant's counsel contended at the trial, as they have
done upon this motion, " That the policy was void " —
1st. Because the state and condition of the fort, mentioned
in the governor's letter to the East India Company, was not
disclosed. 2d. Because he did not disclose that the French,
not being in a condition to relieve their friends upon the coast,
were more likely to make an attack upon this settlement rather
than remain idle. 3d. That he had not disclosed his having-
received a letter of the 4th of February, 1T59, from which it
seemed that the French had a design to take this settlement,
by surprise, the year before.
They also contended, that the opinion of the broker was
almost decisive.
The whole was laid before the jury; who found for the
plaintiff.
9. Facts within defendant's knowledge oe of which he -had
means of knowledge.
Thirdly — It remains to consider these objections, and to
examine " whether this verdict is well founded."
To this purpose, it is necessary to consider the nature of the
contract, at the time it was entered into. The policy was
signed in May, 1760. The contingency was, " Whether Fort
Marlborough was or would be taken, by an European enemy,
between October, 1759, and October, 1760." The computa-
tion of the risk depended upon the chance, "whether any
European power would attack the place by sea." If they did,
it was incapable of resistance.
92 LOKD MANSFIELD.
The underwriter at London, in May, 1760, could judge much
better of the probability of the contingency than Governor
Carter could at Fort Marlborough, in September, 1759. He
knew the success of the operations of the war in Europe. He
knew what naval force the English and French had sent to the
East Indies. He knew, from a comparison of that force,
whether the sea was open to any such attempt by the French.
He knew, or might know, every thing which was known at
Fort Marlborough, in September, 1759, of the general state of
affairs in the East Indies, or the particular condition of Fort
Marlborough, by the ship which brought the orders for the in-
surance. He knew that ship must have brought many letters to
the East India Company ; and particularly from the governor.
He knew what probability there was of the Dutch committing
or having committed hostilities.
Under these circumstances, and with this knowledge, he in-
sures against the general contingency of the place being attacked
by an European power.
10. No ATTACK nr actual operation when policy was made.
If there had been any design .on foot, or any enterprise be-
gun in September, 1759, to the knowledge of the governor, it
would have varied the risk Imder stood by the underwriter; be-
cause, not being told of a particular design or attack then sub-
sisting, he estimated the risk upon the foot of an uncertain
operation which might or might not be attempted.
But the governor had no notice of any design subsisting in
September, 1759. There was no such design in fact; the
attempt was made without premeditation, from the sudden op-
portunity of a favorable occasion, by the connivance and assist-
ance of the Dutch, which tempted Count D'Estaigne to break
his parol.
These being the circumstances under which the contract
was entered into, we shall be better able to judge of the objec-
tions upon the foot of concealments.
11. Alleged concealments; coNDmoN of the place.
The first concealment is, that he did not' disclose the condi-
tion of the place. The underwriter knew the insurance was for
CARTER V. BOEHM. 93
tlie governor. He knew the governor must be acquainted with
the state of the place. He knew the governor conld not dis-
close it, consistent with his duty. He knew the governor, by
insuring, apprehended at least the possibility of an attack.
With this, knowledge, without asking a question, he under-
wrote. By so doing he took the knowledge of the state of the
place upon himself. It was a matter as to which he might be
informed various ways ; it was not a matter within the private
knowledge of the governor only.
But, not to rely upon that — The utmost which can be con-
tended is, that the underwriter trusted to the fort being in the
condition in which it ought to be : in like manner, as it is taken
for granted, that a ship insured is seaworthy.
What is that condition ? AU the witnesses agree " that it
was only to resist the natives, and not an European force."
The policy insures against a total loss: taking for granted
" that if the place was attacked it would be lost."
The contingency therefore which the underwriter has in-
sured against is, " Whether the place would be attacked by
an European force ; " and not, " Whether it would be able to
resist such an attack if the ships could get up the river." It
was particularly left to the jury to consider, "Whether this
was the contingency in the contemplation of the parties:"
they have found that it was. And we are all of opinion " that,
in this respect, their conclusion is agreeable to the evidence."
In this view, the state and condition of the place was mate-
rial only iu case of a land attack by the natives.
12. SeOOND concealment ; — as to PEOBABILnT OF A VISIT FROM
THE FeENCH.
The 2d concealment is, his not having disclosed that,
from the French not being able to relieve their friends upon
the coast, they might make them a visit. This is no part of the
fact of the case : it is mere speculation of the governor's from
the general state of the war. The conjecture was dictated to
him from his fears. It is a bold attempt for the conquered to
attack the conqueror in his own dominions. The practica-
bility of it, in this case, depended upon the English naval force
94 LORD MANSFIELD.
in those seas ; wliicli the underwriter could better judge of at
Xondon, in May, 1760, than the governor could at Fort Marl-
borough, in September, 1759.
13. Thied concealment; — as to design of the Feench the
peevious teae.
The 3d concealment is, that he did not disclose the letter
irom Mr. "Winch, of the 4th of February, 1759, mentioning the
•design of the French the year before.
What the letter was; how he mentioned the design; or
upon what authority he mentioned it ; or by whom the design
•was supposed to be imagined, does not appear. The defendant
las had every opportunity of discovery ; and nothing has come
out upon it, as to this letter, which he thinks makes for his
purpose. The plaintiff offered to read the account Winch
Tvrote to the East India Company, which was objected to ; and
therefore not read. The nature of that intelligence therefore
is very doubtful. But taking it in the strongest light, it is a
report of a design to surprise, the year before ; but then
■dropped. This is a topic of mere general speculation ; which
miade no part of the fact of the case upon which the insurance
Tvas to be made.
It was said, if a man insured a ship, knowing that two
privateers were lying in her way, without mentioning that cir-
cumstance, it would be a fraud ; I agree to it. But if he knew
that two privateers had been there the year before, it would be
no fraud not to mention that circumstance ; because it does not
f oUow that they will cruise this year at the same time, in the
same place ; or that they are in a condition to do it. If the
circumstance of " this design laid aside " had been mentioned,
it would have tended rather to lessen the risk than increase it ;
for the design of a surprise which has transpired, and been laid
aside, is less likely to be taken up again ; especially by a van-
quished enemy.
The jury considered the nature of the governor's silence as
to these particulars ; they thought it innocent ; and that omis-
sion to mention them did not vary the contract. And we are
all of opinion "that, in this respect, they judged extremely
right."
CAETER V. BOEEtM. 95
14. Silence as to matters of politioal specttlation and
general intelligence.
There is a silence not objected to at the trial, nor upon this
motion, which might with as much reason have been objected
to as the two last omissions ; rather more.
It appears by the governor's letter to the plaintiff, dated 22d
September, 1759, " That he was principally apprehensive of a
Dutch war." His words are : " And in case of a Dutch war I
would have it [the insurance] done at any rate." He certainly
had, what he thought, good grounds for this apprehension.
Count D'Estaigne being piloted by the Dutch, delivering the
fort to the Dutch, and sending the prisoners to Batavia, is a
confirmation of those grounds. And probably the loss of the
place was owing to the Dutch. The French could not have
got up the river without Dutch pilots; and it is plain the
whole was concerted with them. And yet, at the time of un-
derwriting the policy, there was no intimation about the Dutch.
The reason why the council have not objected to his not dis-
closing the grounds of this apprehension is, because it must
have arisen from political speculation and general intelligence ;
therefore, they agree, it is not necessary to communicate such
things to an underwriter.
16. Opinion of the broker immaterial.
Lastly, great stress was laid upon the opinion of the
broker. But we all think the jury ought not to pay the least
regard to it. It is mere opinion ; which is not evidence. It is
opinion after an event. It is opinion without the least founda-
tion from any previous precedent or usage. It is an opinion
which, if rightly formed, could only be drawn from the same
premises from which the court and jury were to determine the
cause ; and therefore it is improper and irrelevant in the mouth
of a witness.
There is no imputation upon the governor, as to any inten-
tion of fraud. By the same conveyance which brought his or-
ders to insure, he wrote to the company everything which he
knew or suspected ; he desired nothing to be kept a secret,
which he wrote either to them or his brother. His subsequent
96 LORD MANSFIELD.
conduct, down to the 8th of February, 1760, showed that he
thought the danger very improbable.
16. Reason of the eule as to concealments is to peevent
feaiid not to peomote it.
The reason of the rule against concealments is to prevent
fraud and encourage good faith. If the defendant's objections
were to prevail, in the present case, the rule would be turned
into an instrument of fraud. The underwritei here, knowing
the governor to be acquainted with the state of the place;
knowing that he apprehended danger, and must have some
ground for his apprehension ; being told nothing of either ;
signed this policy without asking a question.
If the objection " that he was not told " is sufficient to va^
cate it, he took the premium knowing the policy to be void ; in
order to gain, if the alternative turned out one way ; and to
make no satisfaction if it turned out the other: he drew the
governor into a false confidence "that, if the worst should
happen, he had provided against total ruin ; " knowing, at the
same time, " that the indemnity to which the governor trusted,
was void."
There was not a word said to him of the affairs in India, or
the state of the war there, or the condition of Fort Marl-
borough. If he thought that omission an objection at the
time, he ought not to have signed the policy with a secret re-
serve in his own mind to make it void. If he dispensed with
the information, and did not think this silence an objection
then, he cannot take it up now, after the event.
What has often been said of the statute of frauds may, with
more propriety, be applied to every rule of law drawn from
principles of natural equity, to prevent fraud, " That it should
never be so turned, construed, or used, as to protect or be a
means of fraud."
After the fullest deliberation, we are all clear that the ver-
dict is well founded ; and there ought not to be a new trial ;
consequently that the rule for that purpose ought to be dis-
charged. Rule discharged.
HOLMAN V. JOHNSON.
97
II.
CONTEACT VALID WHEEE MADE IS VALID
EYEEYWHEEE.
HoTiMAN V. JOHNSOK, TeINTIT TeeM, JtTLt 5tH, 1775.
[1 Cowper, 341.]
Analysis of Loed Mansfield's Opinion.
. Contracts goTemed by the law of the
country where made.
. Theory upon which courts reject immoral
contracts.
. The contract in suit valid.
4. Debt follows the person, and may be en-
forced anywhere.
5. The doctrine of Huberus cited and ap-
proved.
Holman and his partner were Scotchmen, and tea merchants, carrying
on business at DimJdrk. Johnson aMas Newland, was an English smuggler
engaged in buying tea, andrunning it clandestinely into England, without
paying duty, and in violation of the revenue laws of that country. With
knowledge of the character and vocation of Johnson, Holman contracted to
sell him a quantity of tea, to be delivered to Johzlson at Dunkirk, in Scot-
land. The tea was there promptly delivered according to contract. John-
son failed to pay, and Holman sued him in England for the purchase money.
The defendant claimed that the contract must be governed by the law
of England, rather than by the law of Scotland, where it arose, and as the
plaintiff sold the tea with knowledge that it was to be smuggled into Eng-
land, the contract was illegal and plaintiff could not recover. Lord Mans-
field held, that the contract must be governed by the law of the place where
it arose, and since the tea was sold and delivered in Scotland, where it was
perfectly legitimate, and plaintiffs were in no vrise interested in the trans-
portation of it into England, that it was a Scotch contract, and being valid
where made, could be enforced anywhere. The opinion of the Chief Justice
is as follows:
1. CONTEACTS GOVEENED BT THE LAW OF THE COUNTEY "WHEEE
MADE.
LOED MAlSrSFIELD.— There can be no donbt but tbat
every action tried here must be tried by the law of England ;
but tbe law of England says, tbat in a variety of circumstances,
witb regard to contracts legally made abroad, the laws of the
7
98 LOED MANSFIELD.
country where the cause of action arose shall govern. There
are a great many cases which every country says shall be deter-
mined by the laws of foreign countries where they arise. But
I do not see how the principles on which that doctrine obtains
are applicable to the present case. For no country ever takes
notice of the revenue laws of another.
2. ThEOET upon which OOTTETB EEJECT IMMOEAL C0NTEACT8.
The objection that a contract is immoral or illegal as be-
tween plaintiff and defendant, sounds at aU times very ill in the
mouth of the defendant. It is not for his sake, however, that
the objection is ever allowed ; but it is founded on general princi-
ples of policy, which the defendant has the advantage of, con-
. trary to the real justice, as between him and the plaintiff, by
accident, if I may so say. The principle of public policy is
this : ex dolo malo non oritur actio. No court will lend its aid
to a man who founds his cause of action upon an immoral or
an illegal act. If from the plaintiff's own stating or otherwise,
the cause of action appears to arise ex turpi causa, or the trans-
gression of a positive law of this country, there the court says
he has no right to be assisted. It is upon that ground the
court goes ; not for the sake of the defendant, tut because they
will not lend their aid to such a plaintiffl So if the plaintiff
and defendant were to change sides, and the defendant was to
bring his action against the plaintiff, the latter would then have
the advantage of it ; for where both are equally in fault, potior
est conditio defmdentis.
3. The conteact m snr valid.
The question therefore is, whether, in this case, the plaint-
iff's demand is founded upon the ground of any immoral act or
contract, or upon the ground of his being guilty of anything
which is prohibited by a positive law of this country ? An im-
moral contract it certainly is not ; for the revenue laws them-
selves, as well as the offenses against them, are all positivi
juris. What then is the contract of the plaintiff ? It is this :
being a resident and inhabitant of Dunkirk, together with his
partner, who was born there, he sells a quantity of tea to the
HOLMAN v. JOHNSON. 99
defendant, and delivers it at Dunkirk, to the defendant's order,
to be paid for in ready money there, or by bills drawn person-
ally upon him in England. This is an action brought merely
for goods sold and delivered at Dunkirk. Where then, or in
what respect, is the plaintiff guilty of any crime? Is there
any law of England transgressed by a person making a com-
plete sale of a parcel of goods at Dunkirk, and giving credit
for them ? The contract is complete, and nothing is left to be
done. The seller, indeed, knows what the buyer is going to do
with the goods, but has no concern in the transaction itself. It
is not a bargain to be paid in case the vendee should succeed
in landing the goods ; but the interest of the vendor is totally
at an end, and his contract complete, by the delivery of the
goods at Dunkirk.
4. Debt follows the peeson', akd may be entoeoed aitt-
WHEEE.
To what a dangerous extent would this go if it were to be
held a crime. If contraband clothes are bought in France, and
brought home hither, or if glass bought abroad, which ought to
pay a great duty, is run into England, shall the French tailor
or the glass manufacturer stand to the risk or loss attending
their being run into England ? Clearly not. Debt follows the
person, and may be recovered in England, let the contract of
debt be made where it will ; and the law allows a fiction for the
sake of expediting the remedy. Therefore, I am clearly of
opinion, that the vendors of these goods are not guilty of any
offense, nor have they transgressed against the provisions of
any act of parliament.
5. The Docteine of Hubeeus criED and appeoved.
I am very glad the old books have been looked into. The
doctrine Huberus lays down is founded in good sense, and upon
general principles of justice. I entirely agree with him. He
puts the general case in question thus : Tit. de conflictu leguiii,
vol. 4, page 539. "/^ eerto loco meroex qumilam, prnhiiitm sunt.
8i vendantur ibi, oontractas est nuUus. Verum, si merx ea-
dem alibi sit vendita,, uii non erat interdiota, emptor condem-
100 LORD MANSFIELD.
nahitur, 'quia contractus inde ab initio validusfuit," Trans-
lated, it might be rendered thus : In England, tea, which has
not paid duty is prohibited? and if sold there the contract is
null and void. But if sold and delivered at a place where it is
not prohibited, as at Dunkirk, and an action is brought for the
price of it in England, the buyer shall be condemned to pay
the price, because the original contract was good and valid. He
goes on thus : " Verum si merces venditoe in altero loco, vbipro-
hibitce sunt essent tradendw,jam non fieret condemnatio, quia
repugnaret hoc juri et oommodo reipublicoB qucB merces prohi-
huit." Apply this in the same manner. But if the goods sold
were to be delivered in England, where they are prohibited, the
contract is void, and the buyer shall not be liable in an action
for the price, because it would be an inconvenience and preju-
dice to the State, if such an action could be maintained.
The gist of the whole turns upon this : that the conclusive
delivery was at Dunkirk. If the defendant had bespoke the
tea at Dunkirk to be sent to England at a certain price, and the
plaintiff had undertaken to send it into England, or had any
concern in the running it into England, he would have been an
offender against the laws of this country. But upon the facts
of the case, from the first to the last, he clearly has offended
against no law of England. Therefore, let the rule for a new
trial be discharged.
The three other judges concurred.
BEXWELL T. CHBISTIE, 101
III.
ILLEGALITY OF "PUFFIJ^G," AND FALSE EEPEE-
SENTATIONS AT AUCTION SALES.
Bexwell v. Cheistie, Hilaet Term, Febetjaet 3d, 1776.
[1 Cowper, 396.]
Analysis of Loed Maitsfield's Opihion.
No undertaking on the part of defendant
or plaintiff that there should be no bid
under £^5.
, Employment by owner of private bidder a
fraud on the sale and upon the public.
, False description in auction catalogue a
fraud on the public.
The defendant, Christie, was an auctioneer. The plaintiff was the
owner of a gelding, which he sent to the defendant to be sold, with a writ-
ten order not to let him go under £15. The auction at which the sale took
place purported to he "a sale of goods and effects of a gentleman, deceased,
at his house in the country, by order of the executor." The condition of
the sale was, that the goods were to be sold "to the best bidder." It ap-
peared further that the horse was not included in the catalogue, but was put
•up at the sale, and knocked down at £6, 6s., 6d., which was the highest price
bid. Plaintiff brought an action on the case against the defendant for dam-
ages, for carelessly and negligently selling the gelding for less than £15, con-
trary to plaintiff's instructions. Verdict was rendered for the plaintiff,
subject to the opinion of the court.
The plaintiff contended that the defendant, by taking the horse, impliedly
agreed with the owner not to sell it for less than £15, and his doing so was
a fraud on plaintiff and a breach of contract. But the defendant insisted
that the takmg of the horse implied no such contract. That it was not un-
derstood that the sale should be started at £15; that bids might be enter-
tained for less, but the animal was not to be sold until the bidding reached
£15. Hence, if the bidding did not reach that figure, the defendant was
l)ound to let the highest bidder take it; because, if he had employed a
"puffer" tobiditup tothat figure, such action would have been illegal,
fraudulent and void. This view was adopted by the Chief Justice, who held
also that the statement as to its being an executor's sale was likewise a fraud
and that plaintiff could not recover. But held that plaintiff could lawfully
have authorized defendant to start the bidding at £15, for then no deception
would have been practiced.
LOED MANSFIELD. — The matter in question is in itself
of small value : but ia respect of the principles by which it
102 LOED MANSFIELD.
must be governed, it is a question of great importance. Since
the trial I have mooted the point with many who are not law-
yers, upon the morality and rectitude of the transaction.
1. No UNDEETAKING ON THE PAET OV DEFEND AHT OE PLAINTIFP
THAT THKEE SHOULD BE NO BID TJNDEE £15.
The question is, whether a bidding by the owner of goods
at a sale under these conditions, namely, " that the highest bid-
der shall be the purchaser, and if a dispute arise, to be decided
by a majority of the persons present," is a bidding within the
meaning of such conditions of sale ? There is no express un-
dertaking on the part of the defendant, nor is it, as has been inge-
niously said, a direction that there should be no bidding under
£15, which might be fair ; but the direction given to the de-
fendant is, "not to let the horse go under £15," which implies
there might be a bidding under that sum.
2. Employment by ownee of pefvate btodee a feattd on
the sale and upon the public.
The question then is, whether the owner can privately em-
ploy another person to bid for him ? The basis of all dealings
ought to be good faith ; so more especially in these transactions,
where the public are brought together upon a confidence that*
the articles set up to sale will be disposed of to the highest
real bidder. That could never be the case, if the owner might
secretly and privately enhance the price, by a person employed
for that purpose ; yet tricks and practices of this kind daily
increase, and grow so frequent, that good men give in to the
ways of the bad and dishonest in their own defense. But such
a practice was never .openly avowed. An owner of goods set
up to sale at an auction never yet bid in the room for himself.
If such a practice were allowed no one would bid. It is a fraud
upon the sale and upon the public. The disallowing it is no
hardship upon the owner. For if he is unwilling his goods
should go at an under price, he may order them to be set up
at his own price, and not lower. Such a direction would be
iair. Or he might do as was done by Lord Ashburnham, who
sold a large estate by auction. He had it inserted in the con-
ditions of sale, that he himself might bid once in the course of
BEXWELL V. CHRISTIE, 103
the sale, and he bid at once £15,000 or £20,000. Such a condi-
tion is fair, because the public are then apprised, and know
upon what terms they bid. In Holland it is the practice to bid
downwards.
The question then is, is such a bidding fair ? If not, it is
no argument to say it is a frequent custom. Gaming, stock
jobbing and swiudling are frequent, but the law forbids them
aU. Suppose there was an agreement to abate so much, which
is the case where goods are sold by one person in the trade to
another ; they abate sometimes 10 or 15 per cent. Such an
agreement between the owner and a bidder, at sale by auction,
would be a gross fraud. What is the nature of a sale by auc-
tion ? It is, that the goods shaU go to the highest real bidder.
But there would be an end of that, if the owner might pri-
vately bid upon his own goods. There is no contract with the
auctioneer. He is only an agent between the buyer and seller.
He may fairly bid for a third person, who employs him, but
not for the owner.
3. False desceiptioit m auction catalogue a feaud on
THE PUBLIC.
In this case there is another fraud put upon the public. For
by the catalogue the goods are described to be " the goods of a
gentleman deceased, and sold by order of the executor." Upon
this representation, many people would attend to bid, on a sup.
position that the goods were necessarily to be sold at all events,
whether valuable or not valuable, whereas they might have their
suspicions if they were the property of persons living. Horses,
or any other species of property belonging to persons that are
dead, are not so likely to be faulty as those which are parted
with in their life-time.
We all remember the sale of a gentleman's wines, where
vast quantities had been sent in belonging to other persons, and
all sold at a very high price, under an idea they were his. The
consequence was, most of the buyers were taken in.
Therefore, upon full consideration, I am of opinion that a
bidding by the owner in the manner contended for, and agree-
able to the directions given in this case, would have been a
fraud upon the sale ; and consequently, that this action against
the defendant as auctioneer cannot be maintained.
104: LORD MANSFIELD.
IV.
WAGER BETWEEN THIRD PARTIES AS TO RE-
SULT OF LITIGATION— WHEN" VALID.
Jones V. Randall, Eastee Teem, Apeil 28th, 1774.
[1 Cowper, 31]
Analysis op Loed Mansfield's Opinion.
I. The contract of wager neither immoral I .t. Circumstances under which it would be
nor illegal. I immoral and illegal.
3. The wager not contrary to public policy.
Bandall and his friend, in a suit pending in the court of chancery, sus-
tained defeat, the case having been decided against them. They appealed,
therefore, to the house of lords, from the decision of the chancellor, and
pending the appeal made a bet with Jones, the plaintiff, that the decision
below would be affirmed by the lords, and Jones bet it would be reversed.
The amount of the wager was fifty guineas, to be paid to the winner. The
decision was reversed, and Jones, not having received the money thus fairly
won, brought suit to recover it.
The defense was, first, that the law was certain, it being founded upon
fixed and immutable principles of justice, and hence that it was unlavrf ul to
bet upon a thing which was not dependent upon mere chance ; and, second,
that a bet or wager was, upon general principles, an immoral contract, and
could not be enforced. Held that plaintiff was entitled to recover, where
the subject matter of the wager was not immoral, or contrary to public
policy. That in this case the nature of the result was uncertain, and the
chances being equal and the wager not objectionable, plaintiff could recover.
LORD MANSFIELD.— This case must be decided upon
the state of it as it appears upon the declaration. It is there
stated to be a wager made by the defendant, who was the party
appealing in a cause depending before the house of lords, and
who, in case the judgment was reversed in his favor, was to pay
50Z. to the plaintiff ; if it was affirmed, he was to receive 50^.
He was willing, therefore, to receive something, if he lost by
the decision, and to pay the same sum if the judgment were in
his favor. The chances therefore were equal.
JONES T. RANDALL. 105
1. The oonteaot of wagek neither ttvtmoeal nob illegal.
The question upon this state of it is, whether this contract
is against law, and void upon the face of it ?
It is admitted by the counsel for the defendant, that the
contract is against no positive law. It is admitted too, that
there is no case to be found which says it is illegal. But it is
argued, and rightly, that notwithstanding it is not prohibited
by any positive law nor adjudged illegal by any precedents, yet
it may be decided to be so upon principles ; and the law of
England would be a strange science indeed, if it were de-
cided upon precedents only. Precedents serve to illustrate
principles and to give them a fixed certainty. But the law of
England, which is exclusive of positive law, enacted by statute,
depends upon principles ; and these principles run through all
the cases according as the particular circumstances of each have
been found to fall within the one or other of them.
The question then is, whether this wager is against princi-
ples ? If it be contrary to any, is must be contrary either to
principles of morality, for the law of England prohibits every-
thing which is eord/ra honos mores, or it must be against princi-
ples of sound policy, for many contracts which are not against
morality, are stiU void as being against the maxims of sound
policy. "With respect to the first question, whether it is against
morality ? This contract is equal between the parties ; they
have each of them equal knowledge or equal ignorance ; and it
is concerning an event which, reasoning by the rules of predes-
tination, is to be sure so far certain, that it must be as it
should afterwards happen to be. But it is a future event,
equally uncertain to the parties, whether the house of lords
would be of the same or of a different opinion with the chan-
cellor ; the presumption, if any, rather against the person bet-
ting in opposition to the chancellor's judgment.
2. ClECTrMSTANCES UNDER WHICH n WOTTLD BE IMMORAL AND
ILLEGAL. j
No doubt there may be a wager of this kind under such
circumstances as would render it immediately immoral, and
change it into a crime ; and of these there are some in the
106 LORD MANSFIELD.
books ; as in evasions of simony, where a person who wanted to
be made a bishop, conversing with the person who had most
interest at court upon the subject of a see that was then vacant,
said, " I will bet you so much," naming a considerable sum,
" that I have not the bishoprick." This was a mere color to
disguise what was the real intention of the party, which was,
to purchase it. The contract in that case was clearly and mani-
festly corrupt and therefore void. So if the present wager had
been made with one of the judges or with one of the lords*
it would have been a bribe. Or if it had been as Mr. Dunning
stated it, merely a color to cover usury, then, notwithstanding
the disguise of the wager, the moment the truth appeared, it
would remain to be governed by principles, as if the parties
had really entered into such a corrupt agreement. Again, if
it had been a wager laid with either the attorney or counsel
in the cause, it would have been an objection. But theie is no
fact of that sort in this case, which is a transaction, that, as far
as I can see, contains nothing either immoral or contrary to jus-
tice. As to the certainty of the law mentioned by Mr. Dun-
ning, it would be very hard upon the profession, if the law was
so certain that everybody knew it ; the misfortune is, that it is
so uncertain, that it costs much money to know what it is, even
in the last resort.
3. The wagee not conteaet to ptjblio policy.
The second question is, whether this contract is against
sound policy? And supposing it clear of all the circumstances
before mentioned, such as being upon equal terms, without
fraud, and with a view only of securing something to the ap-
pellant, in case the decision went against him, I profess that,
even independent of those circumstances, I see no objection to
it in sound policy. From my own memory of this cause, if
there ever was uncertainty in any case it was in this.
When a nice question therefore is depending, it may be a
point upon which even persons in the profession may differ ;
and if either they or any two other persons bet about the deci-
sion, provided there be no fraud or color in the case, I see no
reason why they should not do so. The present case being of
that sort, and not being prohibited by any positive law, nor
DA COSTA V. JONES. lOT
contrary to any principle of sound policy or morality, I do not
think we are at liberty to prerent the plaintiff from bringing
his action to recover the money he has won, and therefore I am
of opinion that the rule for arresting the judgment ought to be
discharged. The three other judges concurred.
V.
WAGER AS TO THE SEX OF AN INDIVIDUAL
IMMORAL AND VOID.
Da Costa v. Jones, Hilary Teiim, Jajsvakt SIst, 1778.
[2 Cowper, 729.]
AlTALTSIS OF LOED ManSFIELD's OpINION.
I. When indecent evidence maybe admitted;
when rejected,
z. Circumstances under which i* wager is
immoral.
3. A wager on the sex of a third person
illegal.
4, Where the wager involves indecent evi-
dence it cannot be enforced.
A veiy singular action was brought by one Da Costa against a man named
Jones, to recover £300. The case was rendered remarkable, however, for
the sole reason that it brought into prominence one of the curious charac-
ters in history — Charles Genevieve Louis Auguste Andrfi Timothee d'Eon de
Beaumont, familiarly known throughout Christendom as Monsieur le Cheva-
lier D'Eon. The chevalier was born in 1728, at Tonnerre, in Burgundy,
received a liberal education, and obtained his degree as a doctor of canon
and civil law, before the parliament of Paris. While still a young man, his
ambition was directed toward a new channel. He entered the army, and
was afterwards taken into the secret councils of Louis the XV, and sent as a,
spy to Russia, where it became necessary to conceal his sex. He assumed
female attire and won distinction for the success of his perilous and delicate
mission. Being a person of mettle, the chevalier met his antagonist in single
combat, and became the hero of several duels. After his mission to Russia,
however, a doubt arose as to his sex, which was never dispelled until his death.
When the chevalier visited England, having laid aside for a time the cares of
the camp and the cabinet, he assumed male attire and gave himself up to the
pleasures of the turf and the gaming table. It was during this period
in the life of the daring Frenchman that Da Costa and Jones excited
the curiosity of Europe, by their famous wager, Jones agreeing to
108 LORD MANSFIELD.
pay Da Costa three hundred pounds as against seventy-five guineas, in
case at any time the chevalier proved to be a female. Afterwards, Da Costa,
claiming to have won the wager, brought suit against Jones to recover the
£300. The case was tried before Lord Mansfield, and the plainttfiE recovered
the full amount together with forty shillings costs. Defendant's counsel
moved in arrest of judgment, and obtained an order to show cause why it
should not be made perpetual, on the ground that the whole subject matter
of the wager was immoral and illegal, and that the judgment was void and
ought not to be enforced, it being contrary to public morals. After a very
elaborate argument, the court made the rule absolute, and the verdict was
set aside.
Notwithstanding the court would not let the judgment stand, it was
allowed to settle a great number of wagers of precisely the same nature, and
It is said more than £75,000 were staked on the event. The chevalier left
England, declaring he had no interest on the policies opened upon his sex.
He returned to France, assumed female attire, and became the recipient of
a pension from the French government for services as a spy to Louis XV,
which he enjoyed until the revolution of 1790, and being reduced to pov-
erty, returned to England, and lived as companion to a lady of fortune, and
died in 1810. A post mortem examination, however, revealed the fact that
he was of the sex which he originally claimed.
The opinion of the court in setting aside the verdict is as follows:
LOKD MANSFIELD.— This case, upon the trial of the
first cause, made a great noise all over Europe: and soon
afterwards I own 1 was sorry that the answer given to the ob-
jection made at the trial, " that it appeared upon the record,"
had been so hastily given way to by me. I was sorry that the
nature of the action had not been more fully considered. I was
sorry for another thing ; that the witnesses who were subpoenaed
had not been told they might refuse to give evidence if they
pleased. But no objection was made on their behalf by the
counsel for the defendant, nor did any of themselves apply for
protection or hesitate to answer. I have since heard that many
of them were confidential persons, servants, and others em-
ployed in the way of their profession and business. Had any
of them demurred, it would have opened the nature of the
action.
1. When indboent evidenoe mat be ADMrrrED ; when ee-
JEOTBD.
That two men by laying a wager concerning a third person,
might compel his physicians, relations, and servants, to disclose
DA COSTA V. JONES. 109
what they knew relative to the subject matter of that wager,
would have been an alarming proposition : the bare stating it
would have startled. Indeed, the objection being put upon the
general crude ground of the cause leading to indecent evidence,
and not upon the special nature of this case, did not strike me.
For indecency of evidence is no objection to its being received,
where it is necessary to the decision of a civil or criminal
right : and upon that ground, we think Mr. Justice Burnet did
wrong in rejecting the case that came before him ; for there the
party had received an injury. But if it had been an action upon
a wager, whether such a woman had such a defect or infirmity,
it would have been nearly the present case. Indifferent wagers
upon indifEerent matters, without interest to either of the
parties, are certainly allowed by the law of this country, in so
far as they have not been restrained by particular acts of par-
liament ; and the restraints imposed in particular cases, support
the general rule. For where parliament interposes and says,
" unless you have an interest in such a case, any wager or in-
surance upon it shall be void and of no effect ; " it implies, that
in cases not specially prohibited by act of parliament, parties
may wager or insure at pleasure.
2. ClECDMSTANCES TJUDEE WHICH A WAGEE IS IMMOEAL.
And this species of contract has, in fact, gone to an extent
that is much to be complained of. Whether it would not have
been better policy to have treated all wagers originally as gam-
ing contracts, and so have held them void, it is now too late to
discuss ; they have too long and too often been held good and
valid contracts. But notwithstanding they have been so gen-
erally entertained, there must be a variety of instances where
the voluntary act of two indifferent parties, by laying a wager,
shall not be permitted to form a ground for an action or a
judicial proceeding in a court of justice. Suppose a wager be-
tween two people, that one of them, or that a third person,
shall do a criminal act. To go from stronger cases to thos^
that are less strong. " I lay you a wager you do not beat such a
person. Tou lay that you will." Such a wager would be void :
because it is an iacitement to a breach of the peace. Suppose
the subject matter of a wager were a violation of chastity, or an
110 LOED MANSFIELD.
immoral action : " I lay I seduce such a woman." Would a
■court of justice entertain an action upon such a wager ? Most
clearly not ; because it is an incitement to immorality. Sup-
pose a wager upon a subject contra honos mores, like the case
-of Sir Charles Sedley ; would a court of justice try a wager
that incites to such indecency ? It may be said, that there are
no adjudged cases ; but you offend ; you misbehave by laying
such a wager. To come nearer to the point ; suppose a wager
that affects the interest or the feelings of a third person ; which
is one of the grounds upon which the motion for a new trial in
this case has been argued. For instance : that such a woman
has committed adultery. Would a court of justice try the
adultery in an action upon such a wager ? Or, a wager that an
unmarried woman has had a bastard. Would you try that ?
Would it be endured? Most unquestionably it would not.
Because it is not only an injury to a third person, but it disturbs
the peace of society ; and in either of these two last cases, the
party to be affected by it would have a right to say, how dare
you bring my name in question ? If a husband complains of
adultery, he shall be allowed to try it ; because he is a party
injured. So, if it be necessary to justice, to try whether such
an one is a bastard ; it shall be tried. But third persons, merely
for the purpose of laying a wager, shall not thus wantonly ex-
pose others to ridicule, and libel them under the form of an
action.
3. A WAGEE ON THE SEX OF A THIED PEESON ILLEGAL.
We then come to the present case, which is shortly this :
Here is a person who appears to all the world to be a man ; is
stated upon the record to be " Monsieur Le Chevalier D'Eon ; "
has acted in that chai-acter in a variety of capacities ; and has
his reasons and advantages in so appearing. Shall two indifl'er-
ent people, by a wager between themselves, injure him so as to
try, in an action upon that wager, whether (as was said in the
argument) he is a cheat and impostor ? or, show that he is a
woman, and be allowed to subpcena all his intimate friends and
confidential attendants to give evidence that wiU expose him
all over Europe ? It is monstrous to state. It is a disgrace to
judicature. And if the chevalier, by application to the court
DA COSTA V. JONES. HI
or otherwise, lias come and said, " here is a villainous wager
laid to injure me ; I pray the court, as a third person whose in-
terest it affects, to stop it ; " the court would instantly have
done it : upon the same principle as the court stayed the pro-
ceedings, upon the application of Mr. Muilman, in the case of
Coxe V. Phillips. Wherever a question arises upon a real matter
of right, though the interest of third persons, not parties, may be
affected by it, it shall be tried. If a witness lays a wager upon
the subject matter in dispute between a third person, it does
not affect his evidence so as to defeat either party of it.
4. Wheee the wagee involves indecent evidence it cannot
BE BNFOECED.
I think the other ground is material. The question is upon
the sex of a person, to the appearance of all the world, a man ;
and who, for reasons of his own, thinks proper to keep his sex a
secret. The medium of proof upon such a question must arise
from the circumstances that distinguish the sexes. This neces-
sarily tends to introduce all the indecent evidence such an in-
quiry can involve. Suppose two persons were to lay a wager
upon a mark or defect in a woman's body. Will the court say
they would suffer her chambermaid to be called, to give evidence
upon such a question. The case mentioned in the argument,
of an insurance by two sons upon the lives of their respective
fathers, and other cases, where the life of one person is run
against another, are not cases that injure or affect the individ-
uals who happen to be made the subject of such wagers. They
are no reflection or injury to them. So, a wager whether the
next child shall be a boy or a girl, hurts no one. But the pres-
ent case is indecent in itself, and manifestly a gross injury to a
third person ; therefore ought not to be endured. We think
the objection appears suflBciently upon the record, and that
there is ground enough upon these allegations to arrest the
judgment.
The three other judges concurred. Eule for arresting the
judgment absolute.
112
LORD MANSFIELD.
VI.
THE AIE OF ENGLAKD TOO PURE TO BE
BREATHED BY A SLAVE.
SoMEESET V. StewaeTj Teinitt Teem, JuiTE 22d, 1772.
[Lofft's E., St. Tr., Vol. I, 301.]
Analysis of Loed Mansfield's Opinion.
I. The return made to the writ of habeas
corpus.
s. Dicta supposed to support the doctrine of
slavery in England.
3. Slavery so odious that nothing can sup-
port it but positive law.
4. The air of England too pure for a slave to
breathe.
James Somerset was ceptured on the coast of Africa, carried to Vir-
ginia on board a " slaver," was there sold into bondage, and became the
property of Charles Stewart, Esq. Mr. Stewart, in 1V71, visited England, and
took Somerset with him, but when within the British dominions, in Lon-
don, in the parish of St. Mary-le-Bow, in the ward of Cheap, the bondman
concluded to serve his master no longer, and left him. Stewart seized the
negro by force, and gave him into the custody of John Knowles, commander
of the Ann and Mary, then lying in the Thames, bound for Jamaica,
with instructions to convey him thither and sell him as a slave. Somerset
was confined in irons on board the ship. Before the vessel was about to sail,
Thomas Walkin, Elizabeth Cade, and John Marlow, made affidavit of the
fact that the negro was held a prisoner against his vrill. Whereupon Lord
Mansfield allowed a writ of habeas corpus, directed to Captain Knowles, re-
quiring him to bring the body of Somerset before his lordship, and show
the cause of his detention. On the 9th of December, 1771, the negro was
produced before the Chief Justice of England, and return made showing that,
according to the laws of Virginia and Jamaica, and other of his majesty's
colonies and plantations in America, negroes were bought and sold as goods
and chattels, and by virtue of such sales said slaves became and were the
property of the purchasers thereof. That Somerset was purchased by
Stewart, an inhabitant of Virginia, and became and was his property, and
had not been manumitted or set free. The case was argued with great learn-
ing and ability by the most celebrated counsel in London. On Uie part of
Stewart it was insisted that the status of Somerset must be governed by
the law of the domicil of his master, which recognized the existence of
slavery, and the right of property in human beings. So important was the
cause considered that a re-argument, or second argument, wao ordered, and
a decision was not rendered until Trinity Term, on the S3d of June, 1773,
SOMERSET V. STEWAHT. 113
■when the chief justice delivered the following celebrated opinion, setting the
hondmanfree:
LOED MAlSrSriELD.— On the part of Somerset, the case
which we gave notice should be decided this day, the court now
proceeds to give its opinion. I shall recite the return to the
writ of habeas corpus, as the ground of our determination;
omitting only words of form.
1. The eetuen made to the writ as habeas coepus.
The captain of the ship on board of which the negro was
taken, makes his return to the writ in terms signifying that there
have been, and still are, slaves to a great nuniber in Africa, and
that the trade in them is authorized by the laws and opinions of
Virginia and Jamaica ; that they are goods and chattels, and, as
such, salable and sold. That James Somerset is a negro of
Africa, and long before the return of the king's writ was
brought to be sold, and was sold to Charles Stewart, Esq., then
in Jamaica, and has not been manumitted since. That Mr.
Stewart, having occasion to transact business, came over hither,
with an intention to return, and brought Somerset to attend and
abide with him, and to carry him back, as soon as the business
should be transacted. That such intention has been, and stiU
continues ; and that the negro did remain tUl the time of his
departure, in the service of his master, Mr. Stewart, and quitted
it without his consent ; and thereupon, before the return of the
king's writ, the said Charles Stewart did commit the slave on
board the Ann and Mary, to save custody, to be kept till he
should set sail, and then to be taken with him to Jamaica and there
sold as a slave. And this is the cause why he. Captain Knowles,
who was then and now is commander of the above vessel, then
and now lying in the river of Thames, did the said negro, com-
mitted to his custody, detain, and on which he now renders him
to the orders of the court.
2. dlota supp0sei> to support the docterne of slaveet in
Englaoti
"We pay all due attention to the opinion of Sir Philip Yorke,
and Lord Chief Justice Talbot, whereby they pledged them-
selves to the British planters, for all the legal consequences of
114 LORD MANSFIELD.
slaves coming over to this kingdom or being baptized, recog-
nized by Lord Hardwicke, sitting as chancellor on the 19th of
October, 1Y49, that trover would lie. That a notion had pre-
vailed, if a negro came over or became a christian, he was
emancipated, but no ground in law. That he and Lord Talbot,
when attorney and solicitor-general, were of opinion that no
such claim for freedom was valid ; that though the statute of
tenures had abolished villains regardant to a manor, yet he did
not conceive but that a man might stiU become a villain in
gross, by confessing himself such in open court.
3. Slavery so odious that nothing can suppoet it but
POSITIVE LAW.
We are so well agreed, that we think there is no occasion
of having it argued (as I intimated an intention at first) before
all the judges as is usual, for obvious reasons, on a return to a
habeas corpus. The only question before us- is, whether the
cause on the return is sufficient ? If it is, the negro must be
remanded ; if it is not, he must be discharged. Accordingly,
the return states that the slave departed and refused to serve,
whereupon he was kept, to be sold abroad. So high an act of
dominion must be recognized by the law of the country where
it is used. The power of a master over his slave has been
extremely difEerent in different countries. The state of slavery
is of such a nature that it is incapable of being introduced on
any reasons, moral or political, but only positive law, which
preserves its force long after the reasons, occasions, and time it-
self from whence it was created, is erased from memory. It is
so odious that nothing can be suffered to support it, but posi-
tive law. I am quite clear that the act of detaining a man as a
slave can only be justified by the law of the country where the
act is done, although contracts are to be construed according to
the law of the country where they are entered into, and the suc-
cession to personal property according to the law of the coimtry
where the deceased owner was domiciled at the time of his death.
4. The aie of England too puee for a slave to breathe.
Then what ground is there for saying that the status of
slavery is now recognized by the law of England ? That trover
SOMEKSET v. STEWART. 115
■will lie for a slave ? That a slave market may be established in
Smithfield? I care not for the supposed dicta of judges, how-
ever eminent, if they be contrary to all principle. The dicta
cited were probably misunderstood, and at all events they are
to be disregarded. ViUainage, when it did exist in this coun-
try, differed in many particulars from West India slavery. The
lord never could have thrown his villain, whether regardant or
in gross, into chains, sent him to the West Indies, and sold him
there to work in a mine or in a cane field. ■ At any rate villain-
age has ceased in England, and it cannot be revived. The air
of England has long been too pure for a slave, and every man
is free who breathes it. Every man who comes into England
is entitled to the protection of English law, whatever oppression
he may heretofore have sufEered, and whatever may be the
color of his skin.
" Quamvis ille niger, quamvia tu candidus esses."
Let the negro be discharged.
SIR WILLIAM BLACKSTONE.
ON THE COMMON LAW DISTINCTION BETWEEN AC-
TIONS OF "TRESPASS" AND "CASE."
SooTT V. Shepherd, Common Pleas, Eastee Teem, 1773.
[2 Blackstone, 892.]
Analysis of Me. Justice Blackstone's Opiniow.
< The question as to whether original act
was lawful or unlawful, immaterial.
a. Defendant not liable for the acts of Willis
or Ryal.
. Defendant liable only for consequences of
his own immediate act.
. Evidence to support an action on the
case will not support an action for
trespass.
Sib William Blackstonb'b reputation is not due to any particular serv-
ice rendered by Mm in a judicial capacity, though he wore the ermine with
honor and dignity, as judge of the Court of Common Pleas, in the time of
George III, for a period of ten years. His fame rests almost entirely upon
the superior excellence of his Commentaries, a treatise upon the elementary
principles of the common law of England, which, for elegance, grace, and
purity of style, have never been equaled — a work which is read with delight
in our own day, by those, even, who have not adopted the law as a profession.
The Commentaries have been translated into many languages, and are familiar
to men of learning throughout the civilized world. From the crabbed, pe-
dantic styles of Coke, Plowden and Bracton, the student turns with delight to
the refreshing pages of Blackstone, who has clothed the dry subjects under
discussion, with elegant and classic English, and has imparted a new and
lively interest to the arduous and diflBcult study of the law. Jeremy Ben-
tham, the great jurist, says of the author of the Commentaries, "He it is
who, first of all institutional writers, has taught jurisprudence to speak the
language of the scholar and the gentleman, put a polish upon that rugged
science, cleansed her from the dust and cobwebs of the office, and if he has
not enriched her with that precision which is drawn only from the sterling
treasury of the sciences, has decked her out to advantage from the toilet of
classic erudition, enlivened her with metaphors and allusions, and sent her
abroad in some measure to instruct, and in still greater measure to entertain,
the most miscellaneous and even the most fastidious societies. The merit to
which, as much, perhaps, as any, this work stands indebted, is the enchant-
ing harmony of its numbers." And our own Chancellor Kent says of Black-
[110]
SCOTT T. SHEPHERD. 117
stone and his work: "He is justly placed at the head of all the modem
writers, who treat of the general elementary principles of law. By the ex-
cellence of his arrangement, the variety of his learning, the justness of his
taste, and the purity and elegance of his style, he communicated to those
subjects, which were harsh and forbidding in the pages of Coke, the attrac-
tion of a liberal science and the embellishments of polite literature."
The Commentaries were published just prior to the time of the American
Revolution. The author was born in London in July, 1733, and died in
February, 1780, at the age of fifty-seven. The period of his judicial service
extended over the last ten years of his life. In the opinion delivered by him
in the great "squib case," it is true he dissents from a majority of the
court, though the legal propositions advanced in that opinion were not dis-
puted, the point upon which he dissented being upon the application of his
principles to the facts before the court. The case was as follows:
It was the 28th of October, 1770, and fair day at Milbourne Port. A
large concourse of people were in the market-house, which is a covered
huUding, supported by arches, the sides and one end of the structure being
open. Shepherd, out of wanton mischief and to enjoy the sport, threw a
lighted squib into the market. It fell on Yates' ginger bread stand, whence
it was thrown by Willis, to prevent injury, and save the wares of Yates, and
fell on the stand of Ryal, at the other side of the market. The latter, to
prevent hurt to himself, picked up the smoking missile and threw it some
distance across the market, when it accidentally struck Scott in the face,
hurst and put out one of his eyes. Scott then brought an action against
Shepherd, the first thrower, to recover damages. The form of the action was
in trespass and assault, in throwing a lighted squib, and the jury gave the
plaintiff £100 damages.
The verdict was taken subject to the opinion of the whole court, as to
whether an action of trespass would lie, defendant's counsel contending that
plaintiff' should have brought an "action on the case," instead of an " action
of trespass," and that the latter action would lie against Ryal only.
It will be observed that this famous case really turned on a technical
qiiibble, growing out of the refined distinctions formerly recognized in the
forms of actions. It was a well settled rule of the old common law, that
where the injury was the direct and immediate result of the defendant's act,
trespass was the proper form of action. If, however, the damage flowed
indirectly, or was the proximate consegioence of the act of the defendant, then
case, and not trespass, was the proper form. It was attempted to complicate
the subject further, by tacking still another distinction to the form of the
Temedy, depending upon the question as to whether the defendant's conduct
was originally lawful or unlawful; but the court unanimously abandoned
this view.
This case is no longer of much importance, since forms of actions, in
many of the States of the Union, have been long since abolished, and the
pleader is required to make a plain and concise statement of the facta consti-
tuting the cause of action without unnecessary repetition. The spirit of re-
form, and the superiority of modern methods become apparent when the
discussion in the "squib case" is considered. The modern theory is that
118 SIR "WILLIAM ELACKSTONE.
life is too short, and time too precious, to waste in abstract metaphysical
discussion, for the sake of distinguishing as to the form of remedy only, as
to whether the train of circumstances leading to the injury had or had not
been obstructed, and then acquired a new impetus; or whether it was after all
the same motion originally imparted, which caused the damage. The distinc-
tion now made by the courts upon this subject has assumed a practical and
useful inquiry, and affects the question of liability, not the form of the rem-
edy. Are the damages a natural consequence which might reasonably be an-
ticipated by a person of ordinary prudence and intelligence? If they were,
then the injury is the proximate cause of the damage resulting. Otherwise,
if the cause is so remote that the injury cannot be said to be the natural and
immediate result of the act, whether in itself lawful or unlawful, then it
will be regarded as too remote, and no liability arises. And this rule is em-
braced in the maxim, causa proarma, rum remota tpectatur.
This case is further useful to illustrate how eminent judges may agree
perfectly upon the questions of law, and yet differ materially upon the ap-
plication of the law to a given state of facts. In this case Mr. Justice
Blackstone did not differ from his associates as to the law, but as to its ap-
plication to. the facts of the case. In the opinion of Chief Justice De Gray,
who, along with Nares and Gould, took a different view from Blackstone,
who alone dissented from the judgment of the court, the Chief Justice says:
"I agree with my brother Blackstone, as to the principles he has laid down,
but not in his application of those principles to the present case." Black-
stone held, contrary to a majority of the court, that trespass would not lie
against Shepherd, because he thought the injury did not arise from the force
given to the squib by the original act of the defendant, but from a new force
communicated through an independent agency. He says:
BLACKSTONE, J. (dissenting). — I am of opinion that in
this case an action of trespass will not lie against the defendant
Shepherd. The law recognizes the settled distinction to be
that where the injury is i7nmediate, an action of trespass will
lie ; where it is only consequential, it must be an action on the
case. Reynolds v. Clarke, Lord Raym. 1401, Stra. 634 ; Haward
V. Bankes, Burr. 1114; Harker v. Birbeck, Burr. 1159.
1. The question as to whether original act was lawful ok
unlawful, immateeial.
The lawfulness or unlawfulness of the original act is not
the criterion ; though something of that sort is put into Lord
Raymond's mouth in Stra. 635, where it can only mean, that if
the act then in question, of erecting a spout, had been in itself
unlawful, trespass might have lain, but as it was a lawful act
(upon the defendant's own ground), and the injury to the
plaintiff only consequential, it must be an action on the case.
SCOTT V. SHEPHERD. 119
But this cannot be tlie general rule ; for it is held by the court
in the same case, that if I throw a log of timber into the high-
way (which is an unlawful act), and another man tumbles over
it, and is hurt, an action on the case only lies, it being a conse-
quential damage ; but if in throwing it I hit another man, he
may bring trespass, because it is an immediate wrong. Tres-
pass may sometimes lie for the consequences of a lawful act.
If in lopping my own trees a bough accidentally falls on my
neighbor's ground, and I go thereon to fetch it, trespass lies.
This is the case cited from 6 Edw. lY, Y. But then the entry
is of itself an immediate wrong. And case wiU sometimes lie
for the consequence of an unlawful act. If by false imprison-
ment I have a special damage, as if I forfeit my recognizance
thereby I shall have an action on the case ; per Powell, J., 11
Mod. 180. Yet here the original act was unlawful, and in the
nature of trespass. So that lawful or unlawful is quite out of
the case ; the solid distinction is between direct or immediate
injuries on the one hand and mediate or consequential on the
other. And trespass never lay for the latter. If this be so,
the only question wiU be whether the injury which the plaintiff
suffered was immediate or consequential only ; and I hold it to
be the latter.
2. DEFENDAirr NOT LIABLE FOE THE ACTS OP "WiLLIS OR RyAL.
The original act was, as against Yates, a trespass; not as-
against Eyal or Scott. The tortious act was complete when
the squib lay at rest upon Yates' stall. He, or any bystander,
had, I allow, a right to protect themselves by removing the
squib, but should have taken care to do it in such a manner aa
not to endamage others. But Shepherd, I think, is not answer-
able in an action of trespass and assault for the mischief done
by the squib in the new motion impressed upon it, and the new
direction given it by either Willis or Ryal, who both were
agents, and acted upon their own judgment. This differs it
from the cases put of turning loose a wild beast or a madman.
They are only instruments in the hand of the first agent. Nor
is it like diverting the course of an enraged ox, or of a stone
thrown, or an arrow glancing against a tree ; because there the
original motion, the vis impressa, is continued, though diverted.
120 SIR WILLIAM BLACKSTONE.
Plere the instrument of mischief was at rest, till sr new impetus
and a new direction are given it, not once only, but by two suc-
cessive rational agents. But it is said that the act is not com-
plete, nor the squib at rest, till after it is spent or exploded. It
certainly has a power of doing fresh mischief, and so has a
stone that has been thrown against my windows, and now lies
still. Yet if any person gives that stone a new motion, and
does farther mischief with it, trespass wiU riot lie for that
against the original thrower. No doubt but Yates may main-
tain trespass against Shepherd. And, according to the doctrine
contended for, so may Eyal and Scott. Three actions for one
single act ; nay, it may be extended in infinitum. If a man
tosses a football into the street, arid, after being kicked about
by one hundred people, it at last breaks a tradesman's window,
shall he have trespass against the man that first produced it ?
Surely .only against the man that gave it that mischievous
direction. But it is said, if Scott has no action against Shep-
herd, against whom must he seek his remedy ? I give no opin-
ion whether case would lie against Shepherd for the conse-
quential damage ; though, as at present advised, I think, upon
the circumstances, it would. But I think, in strictness of law,
trespass would Ke against Eyal, the immediate actor in this
unhappy business. Both he and Willis have exceeded the
bounds of self-defense, and not used sufficient circumspection
in removing the danger from themselves. The throwing it
acroES the market-house, instead of brushing it down, or throw-
ing it out of the open sides into the street (if it was not meant
to continue the sport, as it is called), was at least an unnecessary
and incautious act. Not even menaces from others are suf-
ficient to justify a trespass against a third person ; much less a
fear of danger to either his goods or his person, — ^nothing but
inevitable necessity.*
3. Defendant liable only foe consequences of his own
immediate act.
So in the case put by Bryan, J., and assented to by Littleton
and Cheke, C. J., and relied on in Raym. 467, " If a man aa-
* Weaver «. Ward, Hob. 184; Dickenson v. Watson, T. Jones, 206 ; Gilbert v.
Stone, Al. 35, Styl. "72.
SCOTT V. SHEPHERD. 121
saults me, so that I cannot avoid him, and if I lift up my staff
to defend myself, and in lifting it up, undesignedly hit another
who is behind me, an action lies by that person against me ;
and yet I did a lawful act in endeavoring to defend myself."
But none of these great lawyers ever thought that trespass
would lie, by the person struck, against him who first assaulted
the striker. The cases cited from the Register and Hardres are
all of immediate acts, or the direct and inevitable effects of the
defendant's immediate acts. And I admit that the defendant
is answerable in trespass for aU the direct and inevitable effects
caused by his own immediate act. But what is his own imme-
diate act? The throwing the squib to Yates' stall. Had
Yates' goods been burnt, or his person injured. Shepherd must
have been responsible in trespass. But he is not responsible
for the acts of other men. The subsequent throwing across
the market-house by WiUis is neither the act of Shepherd, nor
the inevitable effect of it ; much less the subsequent throwing
by Eyal.
4. Evidence to support ait action on the case will not
suppoet an action fob trespass.
Slater v. Barker was first a motion for a new trial after ver-
dict. In our case the verdict is suspended until the determi-
nation of the court. And although after verdict the court will
not look with eagle's eyes to spy out a variance, yet when a
question is put by the jury upon such a variance, and it is made
' the very point of the cause, the court will not wink against
the light, and say that evidence, which at most is only applicar
ble to an action on the case, will maintain an action of trespass.
2. It was an action on the case that was brought, and the court
held the special case laid to be fully proved. So that the
present question could not arise upon that action. 3. The same
evidence that will maintain trespass, may also frequently main-
tain case, but not e converso. Every action of a trespass with
a "j>er quod " includes an action on the case. I may bring
trespass for the immediate injury and subjoin a ^^per quod "
for the consequential damages ; or may bring case for the
consequential damages, and pass over the immediate injury,
as in the case from 11 Mod. 180, before cited. But if I bring
122 SIR WILLIAM BLACKSTONE.
trespass for an immediate injury, and prove at most only
a consequential damage, judgment must be for the defendant
Gates- and Bailey, Tr. Geo. Ill, 2 "Wils. 313. It is said by
Lord Raymond, and very justly, in Reynolds v. Clarke, " We
must keep up the boundaries of actions, otherwise we shall
introduce the utmost confusion." As I therefore think no
immediate injury passed from the defendant to the plaintiff
(and without such immediate injury no action of trespass can
be maintained), I am of opinion that in this action judgment
ought to be for the defendant.
OLIVER ELLSWORTH.
ON THE OPERATION OF A NATIONAL TREATY UPON
A STATE STATUTE.
At a Teem of the UinTED States Cieodit Couet in
NoETH Caeolina, m 1798.
Analysis of Opinion of Chief Justice Ellswoeth.
, Alien's debts not extinguished by a war
with his nation.
Power to confiscate debts of an enemy in
time of war.
What debts witliin the treaty of peace of
1783.
Operation of the treaty upon debts confis-
cated prior to its adoption.
5. Confiscation acts creating legal impedi-
ments discharged by the treaty.
6. Where statutes conflict, the latter abrogates
the former. — A treaty a national statute.
7. The treaty sanctioned by State as well as
national authority.
8. How far vested rights must 3rield to the
public good.
John Randolph, of Roanoke, when a young man, used to justify duel-
ing upon ttie ground that it was private war; and claimed, as a logical de-
duction, that if it was right for nations to engage in hostilities to satisfy pub-
lic wrongs and enforce public rights, individuals, upon the same principle,
might wage war to satisfy private honor. The fallacy of this reasoning is
the failure to distinguish between the municipal law and the law of nature.
The former prescribes a rule of civil conduct for the government and for the
protection of individuals to which all have consented, and which must be
recognized and enforced while society exists. The latter alone governs na-
tions, because they are independent, free, and upon terms of absolute equality,
amenable to no earthly tribunal. But, whether right or wrong, wars have
often been productive of fruitful litigation.
The laws of nature are prescribed by the Creator and discoverable by the
light of reason. The conduct of a nation, therefore, in making war, must be
judged by the rules of natural justice. In time of war the means of enforc-
ing private rights and of giving validity to contract obligations existing be-
tv/een citizens of hostile countries are necessarily suspended; and, as a con-
sequence, abundant opportunity to gratify private avarice is afforded. It
becomes often difficult, therefore, to distinguish between plunder, robbery,
and confiscation, and to decide whether the particular act can be justified
under the law of necessity and self-preservation, or whether it was wholly
the result of individual cupidity. Owing to the great variety of circum-
stances under which persons and property are placed while war exists, — es-
[123]
124 OLIVER ELLS-WORTH ON THE
pedally war which may be regarded as civil or revolutionary in its character
— extensive litigation has always resulted when society resumed its normal
condition, and the questions arising are frequently novel and always inter-
esting.
During the American revolution, the colonies, actuated by severe neces-
sity under circumstances which justified their conduct, in certain instances
confiscated British debts. In some States the remedy of the English cred-
itor was suspended merely, while in others the debtor was authorized to pay
the debt into the State treasury ; and acts were frequently passed by the vari-
ous State legislatures, declaring all property of alien enemies to be vested
absolutely in the State. When the war closed the treaty of peace entered
into between the United States and Great Britain provided, among other
things, that creditors on either side should meet with no lawful impediment
to the recovery of honafide debts theretofore contracted. Later, the constitu-
tion of the United States declared all treaties then existing, or which should
thereafter be made, to be the supreme law of the land, anything in the con-
stitution or laws of any State to the contrary notwithstanding.
The litigation arising out of the attempts of British creditors to enforce
claims sequestered or confiscated during the revolution, presented, therefore,
some very important questions which were discussed with great learning and
ability. The most conspicuous argument, perhaps, on the side of the Ameri-
can debtor was made by Patrick Henry at Richmond, Virginia, and has
since been regarded as the greatest legal effort of the famous American
orator.*
The various questions presented in this class of cases are considered in a
clear and vigorous opinion by Hon. Oliver Ellsworth, of Connecticut, who
came upon the Bench in 1796, as the successor of Hon. John Eutledge, and
was (in consequence of the resignation of Hon. William Gushing, of Gonnecti-
cut, who never actually presided over the court) third in the line of Ghief Jus-
tices of the United States Supreme Court. This is one of the few opinions
which have been preserved of this very able and accomplished man. The
subject matter of the opinion here given is valuable, and goes farther than
the mere abstract question of the right of the English creditor, to recover
the debts contracted in the colonies prior to the revolution, and which had
been confiscated during the war. It embraces a philosophical discussion of
the right to confiscate the debts of an alien enemy, and the reason and policy
of the law with regard to such confiscation ; it treats of the scope and effect
of a national treaty, and its operation upon the statute of a sovereign state
in conflict with the provisions of such a treaty, and touches upon the doctrine
of vested rights, and how far such rights are affected by an exercise of the
right of eminent domain.
The case in which this opinion was rendered has never been reported,
and the decision itself is preserved only by Mr. Flanders, the biographer of
the Chief Justice, to whom we are indebted for it. The mode, however, in
which the subject under discussion is treated is admirable. The difficult
question, that the debt was not in existence when the treaty went into effect,
* See Speech of Patrick Henry in '* Great Speeches by Great Lawyers," p. i.
OPERATION OF A NATIONAL TREATY. 125
Is met by the old principle that the debt was not in fact extinguished; that
the confiscating act being a statute, and the treaty a statute conflicting with
it, the latter abrogates the fonner and revives the debt. Upon the question
that the debtor was clothed with a vested right to stand discharged of the
obligation, the Chief Justice, applies the law of eminent domain, which pro-
vides that private property must yield to public necessity. The opinion is
as follows:
ELLSWORTH, C. J.— It is admitted that tlie bond on
which this action is brought was executed by the defendant to
the plaintifEs, and that the plaintiffs have not been paid. But
the defendant pleads that, since the execution of the bond, a
war has existed in which the plaintifEs were enemies ;. and that,
during that war, this debt was confiscated, and the money paid
into the Treasury of the State. And the plaintiffs reply that,
by the treaty which terminated the war, it was stipulated " that
creditors on either side should meet with no lawful impedi-
ments in the way of the recovery of iona fide debts heretofore
contracted."
1. Alien's debts not extinguished by a wak with his nation.
Debts contracted to an alien are not extinguished by the in-
tervention of a war with his nation. His remedy is suspended
while the war lasts ; because it would be dangerous to admit
him into the country, or to correspond with agents in it, and
also because a transfer of treasure from the country to his na-
tion would diminish the ability of the former, and increase
that of the latter, to prosecute the war. But with the termina-
tion of hostilities, these reasons and the suspension of the rem-
edy cease.
2. Power to confiscate debts of an enemy nsr time of wah.
As to the confiscation here alleged, it is doubtless true
that enemy's debts, so far as consists in barring the creditors,
and compelling payment from the debtors for the use of the
public, can be confiscated ; and that, on principles of equity,
though, perhaps, not of policy, they may be ; for their confis-
cation, as well as that of property of any kind, may serve as an
indemnity for the expenses of war, and as a security against
future aggressions. That such confiscations have fallen into
126 OLIVER ELLSWORTH ON THE
disuse, not from the duty which one nation, independent of
treaties, owes to another, but from a commercial policy which
European nations have found a common, and, indeed, strong
ifiterest in supporting. Civil war which terminates in a sever-
ance of empire does, perhaps less than any other, justify the
confiscation of debts, because of the special relation and confi-
dence subsisting at the time they were contracted. And it may
have been owing to this consideration, as well as others, that
the American States, in the late Revolution, so generally for-
bore to confiscate the debts of British subjects. In Yirginia,
they were only sequestered. In South Carolina, all debts, to
whomsoever due, were excepted from confiscation ; as well, in
Oeorgia, of British merchants and others residing in Great
Britain.* And in the other States, except this, I do not recol-
lect that British debts were touched. Certain, it is, that the
recommendation of Congress on the subject of confiscation did
not extend to them. North Carolina, however, judging for
herseK in a moment of severe pressure, exercised the sovereign
power of passing a confiscation act, which extends, among
others, to the debts of the plaintiffs : providing, however, at
the same time, as to all debts which should be paid into the
treasury under that act, that the State would indemnify the
debtors, should they be obliged to pay again.
Allowing, then, that the debt in question was, in fact, and
of right confiscated, can the plaintiffs recover* by the treaty of
1783?
3. "What debts within the treatt of peace or 1783.
The fourth article of that treaty is in the following words :
— " It is agreed that creditors on either side shaU meet with no
lawful impediment to a recovery of the full value, in sterling
money, of aU bona fide debts heretofore contracted." There is
no doubt but the debt in question was a bona fide debt, and,
therefore, contracted ; i. e., prior to the treaty. To bring it
within the article, it is also requisite that the debtor and cred-
itor should have been on different sides with reference to the
* Georgia suspended, but did not confiscate ; and in the case of Georgia ».
Brailsford, it was held that the creditors could recover.
OPEBATIOK OF A NATIONAL TREATY. 127
parties to the treaty. And as the defendant was confessedly a
citizen of the United States, it must appear that the plaintiffs
were subjects of the King of Great Britain. And it is pretty
clear, from the pleadings and the laws of the State, that they
were so. It is true that, on the 4th of July, 1776, when ]!^orth
Carolina became an independent State, they were inhabitants
thereof, though natives of Great Britain, and might have been
claimed and holden as citizens, whatever were their sentiments
or inclinations. But the State afterwards, in 1777, liberally
gave to them, and others similarly circumstanced, the option of
taking an oath of allegiance, or of departing the State under a
prohibition never to return ; with the indulgence of a time to
settle their estates, and remove their effects. They chose the
latter, and ever after adhered to the King of Great Britain,
and must, therefore, be regarded as on the British side.
4; Operation of the teeatt upon debts confiscated peiob
TO its adoption.
It is also pertinent to the inquiry, whether the debt in ques-
tion be within the before recited article, to notice the objection
stated by the defendant's counsel, viz., that, at the date of the
treaty, what is now sued for as a debt was not a debt, but a
nonentity ; payment having been made, and a discharge effected,
Tinder the act of confiscation, and, therefore, that the stipula-
tion concerning debts did not reach it.
In the first place, it is not strictly true that in this case
there was no debt at the date of the treaty. A debt is created
by contract, and exists tiU the contract is performed. Legisla-
tive interference to exonerate a debtor from the performance of
his contract, whether upon or without conditions, or to take
from the creditor the protection of law, does not in strictness
destroy the debt, though it may the local remedy for it. The
debt remains, and, in a foreign country, payment is frequently
enforced.
5. Confiscation acts creating legal impediments disohakged
BT THE TREATY.
Secondly. It was manifestly the design of the stipulation
that where debts had been, heretofore, contracted, there should
be no bar to their recovery from the operation of laws passed
128 OLIVER ELLSWORTH ON THE
subsequent to the contracts. To adopt a narrower construction
of the article would be to leave creditors to a harder fate than
they have been left to by any modern treaty.
Upon a view, then, of all the circumstances of the case, it
must be considered as one within the stipulation, that there
should be " no legal impediment to a recovery ; " and it is not
to be doubted that impediments created by the act of confisca-
tion are " legal " impediments. They must, therefore, be disre-
garded if the treaty is a rule of decision. Whether it is so, or
not, remains to be considered.
6. Where statutes contliot, the latter abrogates the
former. a treaty a national statute.
Here, it is contended by the counsel for the defendant, that
the confiscation act has not been repealed by the State ; that
the treaty could not repeal oj? annul it ; and, therefore, that it
remains in force, and secures the defendant ; and further, that
a repeal of it could not take from him a right vested, to stand
discharged.
As to the opinion that a treaty does not annul a statute, so
far as there is an interference, it is unsound. A statute is a
declaration of the public will, and of high authority ; but it is
controllable by the public will subsequently declared; hence
the maxim, that, when two statutes are opposed to each other,
the latter abrogates the former. Nor is it material, as to the
effect of the public will, what organ it is declared by, provided
it be an organ constitutionally authorized to make the declara-
tion. A treaty, when it is in fact made, is, with regard to each
nation that is a party to it, a national act ; an expression of the
national will, as much so as a statute can be ; and does, there-
fore, of necessity annul any prior statute, so far as there is an
interference. The supposition that the public can have two
wills, at the same time, repugnant to each other — one expressed
by a statute and another by a treaty — is absurd.
7. The treaty sanctioned by State as well as national
authority.
The treaty now under consideration was made, on the pai-t
of the TJnited States, by a Congress composed of deputies from
OPERATION OF A* NATIONAL TREATY. 129
each State, to -whoin was delegated, by the Articles of Confed-
eration expressly, " the sole and exclusive right and power of
entering into treaties and alHances ; " and laws ratified or made
by them became a complete national act, and the act and law
of every State. If, however, a subsequent sanction of this
State were necessary to make it a law here, it has been had and
repeated.
The act of 1787, declaring the treaty a law in the State, and
to the adoption of the Constitution of the United States in
1789, which declares, that all t^^eaties which had been or might
be made under the authority of the United States, should be
the supreme law of the land, are particular acts sanctioning the
treaty made by the general government. Surely, then, the
treaty is now law in this State ; and the confiscation act, so f ar
as the treaty interferes with it, is annidled.
8. How FAE VESTED EIGHTS MUST YIELD TO THE PUBLIO GOOD.
With regard to the remaining suggestion, that annulling
the confiscation act will not annul the defendant's right of dis-
charge acquired while the act was in force, it is true, the repeal
of the law does not destroy what has been well done under it.
But, admitting the right claimed by the defendant to be as sub-
stantial as a right of property can be, yet he may be deprived
of it if the treaty so requires. It is justifiable, and frequent in
the adjustment of national differences, to concede, for the safety
of the State, rights of individuals ; and they are afterwards in-
demnified or not, according to circumstances. What is more
material to be here noted is, that the right or obstacle in ques-
tion, whatever it may amount to, has been created by law, and
not by the creditor, and comes, therefore, within the descrip-
tion of legal impediments ; all of which, in this case, the treaty,
I apprehend, removes. Let judgment be for the plaintiffs.
THE DEVELOPMENT OF SOCIAL ORDER.
HON. STANLEY MATTHKWS.
Associate Justice Supreme Court of the United States.
This social order, from the nature of the case, in the history of
the race, obeys the law of evolution and development. The vari-
ous forms which at any given period we find co-existing in the
world — as there are now, and always have been, many — are but
stages of this development. Everywhere and at all times, we see
the energies of man displayed and exerted in efforts to conquer the
world, without and within — to subdue the material universe in
order to support and improve his physical and to unfold and de-
velop his spiritual life. And if too often history has to record the
fall of nations, and the lapse of races and peoples into barbarism,
and even to lament their extinction, nevertheless, the law of prog-
ress, in all that we know and call civilization, on the whole asserts
itself, even by means of adverse experiences; for the education of
the world has come from the knowledge of both good and evil.
The hope of this advancement and progressive improvement in the
conditions of our earthly life, and increase in the elements of indi-
vidual well being, is what sweetens the bitterness of living, makes
light its burdens, and turns sacrifice into delight. Without it, it is
not perhaps too much to say that life would scarcely be worth liv-
ing; and that society itself becoming stagnant, would also become
corrupt, and of corruption die. At least, out of this hope is begot-
ten all the grace and loveliness of life, all art and literature, paint-
ing, poetry, sculpture, architecture and music, — everything that
cultivates and embellishes our earthly habitation. It were rash to
predict whether a perfect social order would ever be realized by
mankind on the earth. But as we are taught to pray for it, we
ought not to cease to expect it. We shall, at least, know it when it
comes. It will be the kingdom of God upon earth, in which His
will shall be done, even as it is done in heaven. In it there will be
a place for every man in which to do the work for which he is best
fitted, wherein he will be able to perfect his individual being by the
most complete and eflScient exertion of every faculty and quality
that constitute his characteristics as a man, and whereby he will
have the opportunity of accomplishing the greatest good both for
others and himself; when every right will be the most richly en-
joyed, when every duty will be the most faithfully performed;
where the perfect law of justice will be accomplished in every hu-
man relation, and' cover with its invincible shield the weakest from
every conceivable wrong. — [From an Address before the State Bar Association, at
Albany, Sept. 20, 1881.I
[180]
LORD REDESDALE.
EQUITY WILL PREVENT AN ADVANTAGE GAINED AT
LAW FROM BEING USED AGAINST CONSCIENCE.
Bond t. Hopkins, in Chancery, Deoicmbee, 1802.
[1 Sch. ALef. R.,413.]
Analysis of Lord Kedesdale's Opinion.
z. Dr. Bond recognized as legitimate by his
father.
^. The will and codicils disinheriting Dr.
Bond, obtained through a wicked con-
spiracy.
3. The will and codicils being void, Henry
Bond died intestate.
4. Object of original and supplemental bills
filed by Dr. Bond in 1755 and 1756. —
The Malone suit.
5. Statute of limitations does not run
against one seeking to get evidence.
6. The only issue in the Malone suit w^as the
validity of the will and codicils of Dr.
Bond's father.
7. The will and codicils declared null by the
decree of 1770.
S. Dr. Bond unjustly deprived of the bene-
fit of the decree of 1770.— His suffer-
ings and death.
9. Length of time, where possession is un-
der color of title, will not prejudice
right of true owner,
zo. Application of the statute of limitations
to suits in equity.
11. Equity will prevent an advantage gained
at law from being used against con-
science.
12. Where the equitable title is not barred,
the statute of limitations at law is no
bar in equity.
Equity will not allow advantage to be ta-
ken under the statute of frauds, where
it is against conscience.
Authority of Lord Eldon in Pulteney v.
Warren.
The statute began to run in 1770, so that
this suit, commenced In 1776, was not
barred.
16. A party has twenty years during which
it shall be open to him to proceed to
assert his title.
A new equitable title accrued to Dr. Bond
under the decree of 1770.
Dr. Bond not bound to file a cross-bill.
Bill suffered to be taken pro con/esso^
equal to an admission of the fact in
issue.
20. Plaintiffs not barred by the statute of
limitations.
21. Equity will regard as done that which
ought to have been done.
i3-
14.
IS
17-
19.
Jarndtce '0. Jarndtce, in the 19th of Dickens, pages 1-360, fur-
nishes some idea of proceedings in chancery, as conducted under the cum-
bersome forms and ruinous and interminable methods of procedure in vogue
in the early part of the present century. That celebrated case was in itself a
monument of the old chancery practice, which, according to Kenge, of Kenge
& Carboy, Lincoln's Inn, presented every diflSiculty, every contingency,
every masterly fiction, every form of procedure, known in that court.
Chancery, as understood prior to the reforms introduced by Brougham and
[131]
133 LORD REDE8DALE.
Romilly, implied a great deal. The meaning of the term may be gleaned from
the following language of Mr. Dickens, in his ingenious piece of satire, above
referred to: "Chancery, which has its decaying houses and its blighted lands
in every shire; which has its worn-out lunatic in every mad-house, and
its dead in every churchyard; which has its ruined suitor, with his slip-shod
heels and threadbare dress, borrowing and begging through the round of
every man's acquaintance; which gives to moneyed might the means abun-
dantly of wearying out the right; which so exhausts finances, patience,
courage, hope; so overthrows the brain, and breaks the heart, that there ia
not an honorable among its practitioners who would not give — who does not
often give the warning, ' Suffer any wrong that can be done you rather than
come here.'"
Jamdyce v. Jarndyce, it is true, was born in the imagination of the great
novelist, but the reality of that description existed in fact upon the records
of the courts, not of Great Britain and Ireland only, but in her colonies also,
and continued to disgrace our civilization until the spirit of reform, begotten
largely by the production of such pungent sarcasm as distinguishes the story
of the "Bleak House," resulted in the abolition, to a large extent, of the old
methods, which regarded matters of form as of more importance than matters
of substance, and cultivated and encouraged the technicalities which were
often adroitly employed by unscrupulous counsel to defeat the ends of justice.
Is the picture in "Bleak House" overdrawn? Bead the story of the
trials and privations, the sufferings and death, of Dr. John Bond, in Bond v.
Hopkins, and the misery entailed in that litigation upon lila children and his
grandchildren in an honest endeavor to get possession of their home. Follow
three generations in the dark and tortuous caverns of legal quibbles and
technicalities through which they groped for nearly half a century, before
their wrongs were righted, and answer whether the flctioji surpasses, or ap-
proaches even, the grim facts laid bare by the final judgment actually deliv-
ered in a real chancery suit.
This litigation, in Bond v. Hopkins, would perhaps have continued to the
present time, but for the fact that a chancellor of powerful intellect and
spotless integrity succeeded to the bench. In this particular instance, his
fitness for the administration of his high trust appears in a remarkable de-
gree, and in the exercise of his abilities he completely overshadows the long
line of his predecessors, who seemed to have neither the vigor nor un-
derstanding to deal with the complications which from time to time arose in
the case.
John I^eeman Mitpord thoroughly understood the science of jurispru-
dence in all its details, and was one of the greatest of chancellors. lie suc-
ceeded John Scott, afterwards Lord Eldon, as Attorney-General, and was a
representative in parliament from 1785 till 1801, when he was elected Speaker
of the House of Commons, and in 1803 was appointed Lord Chancellor of
Ireland, and raised to the peerage, with the title of Lord Redesdale. He
presided on the bench until 1806, when he resigned and was succeeded by
the right Hon. George Ponsonby, one of the counsel for the plaintiff in the
present case. He died on the 16th of January, 1830, at the age of eigh-
ty-two.
BOND V. HOPKINS. 133
The litigation in whicli tlie opinion below was written, was commenced
■when Lord Eedesdale was only six years old. The story of the case is as
follows:
Henry Bond was a wealthy Irish gentleman living in affluence upon his
estates at Bondville, in the town of Bondville, in Ireland. Besides being
possessed of a goodly fortune in money and chattels, his lands extended into
portions of three comities, of which he was seized in fee of the reversion,
subject to a limitation to his issue male.
His only son. Dr. John Bond, was a person remarkably fond of travel and
adventure. He left the homestead in 1753 and went to Amterica, and while
absent his father, Henry Bond, in November, 1754, died. At the time of the
old gentleman's demise there were in the Bond Mansion, and had been for a
long time previously, several persons employed about his person in different
capacities, among whom were Kose Hopkins; her husband Thomas; and
Henry, their infant son ; and Roger Malone, her brother. William McGeough
and his vrife, Elizabeth, were collateral relatives of Henry Bond, and in the
event of his dying intestate, without leaving lawful issue, they would be en-
titled to his property by descent, as his only heirs at law.
Impelled by motives of greed and avarice, these persons, taking advan-
tage of the son's absence, entered into a wicked conspiracy, and by some
artful device succeeded in inducing Henry Bond, shortly before his death, to
make a will, in which Eoger Malone was named as one of the executors.
By this instrument and the codicils thereto, the bulk of his property was de-
vised and bequeathed to Malone and the Hopkins's, while but a small portion
of it was given to Dr. Bond. The house and demesne of Bondville was de-
■vised to Thomas and Rose Hopkins for life, with remainder to their son
Henry, in fee.
It will be seen that in order to render this will operative, it would have
to be shown that Henry Bond died without lawful issue, in order to extin-
guish the entail. The plan, therefore, as shown by the development of the
scheme, was to have Dr. Bond adjudicated illegitimate, while he was yet ab-
sent from the country, and without giving him an opportunity to shield his
name from this eternal disgrace. William and Elizabeth McGeough, there-
fore, in collusion with Malone and the Hopkins's, as was alleged, before it
was possible for the son to reach his native land, at once brought an action
of ejectment in a court of law, to get title to part of the estates, by claiming
as heirs at law of Henry Bond, and alleging that the son. Dr. John Bond,
was illegitimate. In case they could succeed in having him adjudicated a
bastard, they would cut off his right to inherit, even if the will should after-
wards be set aside. The decision, moreover, would establish the right of the
testator to make a vrill, as to the realty, because, it seems, he could only dispose
of the entail in the event of his d3dng without issue male. If, however, the will
should be set aside on the ground that it was obtained by undue influence,
still the McGeoughs, should the illegitimacy be established, would take the es-
tates by descent, and then it could be enjoyed by the confederates in common.
The ejectment by the McGeoughs, then, was the first chapter in the his-
tory of a long and tedious litigation, which was destined to drag its slow
length through the courts of law and equity for nearly half a century.
134: LORD EEDESDALE.
Dr. Bond, Immediately on receiving tidings of his father's death, has-
tened to Ireland, where he arrived in the fall of 1755. What then must have
been his chagrin and mortification upon his return, to discover strangers — the
Hopkins's and Roger Malone — in possession of his house and all the personal
property, and also of the title deeds and papers of every description belong-
ing to the estate, and claiming the right to them under his father's will; and
what must have been the bitterness of his disappointment on finding his
blood relatives seeking to get part of his property in a court of law, by
branding him as a bastard and an outcast. It is true that some of his father's
tenants steadily stood by the son, and attorned to him, refusing to recognize
the Hopkins's. But he was unable to get possession of Bondville, or the
deeds and documentary evidence necessary to make his defense to the eject-
ment suit, and to establish his legitimacy ; but on the 24th of October, 1755, he
was allowed to come in and defend the action. Being stripped, however, of
the means of establishing his defense, he filed a bill in equity in 1755, pray-
ing for a discovery, and demanding the production of the title deeds and
papers necessary to establish his defense in law to the ejectment suit. Very
soon Roger Malone and the Hopkins's brought ejectment in a court of
law against Dr. Bond claiming the estate as devisees, under his father's
will. This second action forced Dr. Bond in 1756 to amend his bUl in
equity, and compelled him to seek further discovery to ascertain the prac-
tices used in obtaining this will, which he alleged was nuU and void, having
been procured through fraud and undue influence. Early the following
year, on the 19th of January, 1757, the Hopkins's and Roger Malone filed a
bill in equity against Dr. Bond making the McGeoughs parties also, setting
up the alleged will of Henry Bond and alleging that he died seized of his
estates, subject to a limitation to his issue male, and charging that he died
without issue male- They prayed, therefore, that the will be established and
that they might have the benefit of the devises and bequests therein, and
praying for quiet possession by the issue of an injunction to restrain Dr.
Bond from taking proceedings at law against them. To this bill Dr. Bond
was compelled to file his answer, in which he impeached the alleged will as
obtained by fraud and imposition.
Three years had now elapsed since the death of Henry Bond. In that
time three suits had been brought against his son, two at law and one in
equity. The first by collateral heirs of his father claiming the estates on the
ground that he was an illegitimate son. The second was by strangers claim-
ing as devisees under a will of his father, which they had procured during
his absence, by fraud and conspiracy. The third was a suit in equity by the
same parties against both himself and his collateral relatives claiming as
devises under the same will, and tying his hands by an injunction to prevent
him from suing them at law for any purpose. The doctor, on the other hand,
was driven by this flood of litigation, to bring a suit in equity in order to secure
the evidence with vifhich to make his defense to these several actions. In
view of the fact that the Hopkins's were all this time in possession of Bond-
ville the court made an order that they should give security for the rents
thereof.
BOND V. HOPKINS. 135
Meantime, Dr. Bond became embarrassed, having been deprived of his
property, and being ■without the necessary proofs on which to go to trial, and
it was ten years before the evidence could be procured upon which to pro-
ceed. Finally, on the 13th of May, 1767, an order was made directing a
trial of the issue in the equity suit brought by the Hopkins's to ascer-
tain whether the will and codicils set up therein were really the will and
codicils of Henry Bond. An objection to the venue delayed the trial an-
other year, but this technical quibble was settled in April, 1768. But one
fine morning in November, 1769, fifteen years after the death of Henry
Bond, this issue was actually tried in the Court of King's Bench, whither it
had been sent from the equity side of the court, and a verdict was rendered
establishing the fact that the alleged will and codicils were not the will and
codicils of Henry Bond, but were obtained by fraud and undue influence, and
were, therefore, null and void. The McGeoughs meantime, for some reason,
withdrew and did not join in the trial of this issue. In January, 1770, an
application for a new trial was denied with costs, and on final hearing on the
23d of July, 1770, the Hopkins bill in equity was dismissed with costs.
This issue must necessarily have settled the questions of fact; first, that
Dr. Bond was legitimate, because the bill alleged that Henry Bond died
without issue male; second, that his father died intestate. It is, therefore,
diflBcult to understand or comprehend, how it was that the son was not
restored to his property, and tbe litigation brought to an end. Lord Redes-
dale himself, in writing the final decision in the case nearly a quarter
of a century later, is unable to explain it. Dr. Bond supposed, and his
counsel supposed, that, having established his heirship, and defeated
the conspiracy, and the fraudulent will which was its legitimate fruit, he
ought to take possession of his property. The Hopkins's, however, would
not stir one foot, and Dr. Bond was compelled to drive them out of his house
at Bondville, and take his property by force. It was, however, but a tem-
porary triumph, for some benighted judge, for some unaccountable reason,
issued a possessory bill to the Hopkins's, and the other conspirators, and
Dr. Bond was in turn driven from his house and lands at BondviUe, which
he was destined never again to enter. The title deeds and papers were sur-
rendered by the confederates to their solicitors, and Dr. Bond was not able
to get them. He was now broken-hearted, ruined financially, and heavily in
debt, and finally became reduced to penury and rags; he was cast into prison,
and on the second day of June, 1774, after twenty years of cruel litigation,
died miserably in his cell.
Although he was not able to live long enough to right his wrongs, he de-
termined that his enemies should not wholly triumph. Prior to his death,
therefore, he made a will devising his estates to his son Thomas for life, with
remainder to his first and other sons in strict settlement.
Dr. Bond, however, was hardly cold in his grave when the Hopkins's,
Malone and the McGeoughs, brought an action of ejectment against Thomas
Bond, the doctor's son, who was yet a minor, to get possession of the parts of
the estate which the tenants had attorned. Thomas Bond, like his father
before him, was thus driven into a court of equity, where he filed a bill, in
which he prayed that the Hopkins's, Malone, and the McGeoughs, be di-
136 LORD REDESDALE.
rected to bring the pretended will of his grandfather into court to be surren-
dered up and cancelled; and for an injunction against interfering with the
possession of his property, and to restrain the ejectment suit. It would be diffi-
cult to see what trial was necessary, but under the forms, he was compelled
to pray that if any trial was necessary, it might go on under the direction of
the court, and that the plaintiff might be permitted to use the testimony al-
ready taken of such witnesses as had since died, or were unable to attend.
This bill was filed in 1776, and was taken ^o confeaao against the McGeoughs,
who thus conceded the legitimacy of Dr. Bond.
In 1777, the year following, the Hopkins's filed their answer to this bill,
and, notwithstanding the previous adjudication upon this point, they in-
sisted upon the illegitimacy of Dr. Bond, though certainly estopped by the
record and judgment on that identical question, rendered in 1770, seven years
previously. A replication was filed to this answer, and a year later, on the
28th of July, 1778, a receiver was appointed, but an injunction was granted by
the court to Thomas Bond, restraining proceedings against him in the eject-
ment suit. Seven years more elapsed during which time Mr. Bond encoim-
tered disappointments similar to those experienced by his father. He was
finally reduced to penury and obliged to appear as a pauper before the court,
and to request that he might be allowed to proceed with the litigation in
forma pauperis, and on the 13th of May, 178S, this leave was granted. Taking
advantage of these misfortunes, Henry Hopkins and Roger Malone in 1786,
with a view to defeat the title of the Bonds to Bondville which had now re-
mained in possession of the Hopkins's and Malone more than twenty years, lev-
ied a fine, in order to bar the entailment against the right heirs of Henry Bond,
and to nullify the effect of the decree of 1770 in their favor. Meantime, Henry
Hopkins, Roger Malone, and some of the McGeoughs died, all leaving wills,
transmitting to their posterity their interest in the litigation, but Rose Hop-
kins survived. In 1789, Henry Bond, grandson and devisee of Dr. Bond, and
great grandson of Henry Bond, arrived at majority; and after laboring for a
period of four years to secure sufficient means and proper testimony, on
the 15th of Jime, 1793, commenced this suit in connection with his father,
which, after a period of ten years, was finally decided in his favor by Lord
Redesdale, in December, 1803, in the following vigorous opinion.
The plaintiffs prayed for a discovery and production of all title deeds,
muniments and papers relating to the estate of Henry Bond, the grand-
father and great grandfather of the plaintiffs; and asked that the pretended
will and codicils alleged to have been executed by said Henry Bond be de-
livered up and cancelled, and that the plaintiffs might be quieted by a per-
petual injunction against all suits at law brought or to be brought by the de-
fendants.
Rose Hopkins, the principal defendant, both in her own right and as
devisee of her son Henry, insisted upon the illegitimacy of Dr. Bond, and still
claimed as devisee under the alleged will of Henry Bond. She also pleaded
the statute of limitations, and claimed twenty years of adverse possession of
Bondville. The Master refused to allow the plea of the statute of limitations
in bar, and the Hopkins appealed to the Lord High Chancellor. Lord Redes-
dale decided in favor of the Bonds, and totally and completely routed and
BOND V. HOPKINS. 137
discomfited the Hopkins's, and granted to the long suffering heirs the re-
lief which he said they were entitled to years before.
For the plaintiffs appeared John Philpot Curran, the famous orator;
Hon. George Ponsonby, who afterwards succeeded Lord Redesdale as Chan-
cellor, and Mr. O'Grady. The decision is as follows :
LOKD EEDESDALE.— I had no doubt from the first
that I ought to aflBrm the decree, if I should not think it right
to go further. The decree enables the plaintiff to try his title
at law, without the impediments unconsciously thrown in the
way of that title.
1. De. Bond eecogotzed as legitimate by his fathee.
The facts of the case are these : Henry Bond being seized
of estates in three different coimties, died in 1754, leaving a
eon. Dr. John Bond, who was unquestionably acknowledged by
his father as legitimate, though there has been a question as to
his legitimacy. This son was then in America, and the several
persons who have been mentioned were about his father in dif-
ferent situations at the time of his death.
2. The will and codicils disinheeiting De. Bond, obtained
theough a wicked conspieaot.
It must now be taken that they entered into a wicked con-
spiracy to obtain a wiU from the father, disposing of the prop-
erty in their own favor. The court would struggle hard to
prevent the effect of such a conspiracy to the prejudice of the
heir. But if it cannot be avoided upon principles applicable to
all cases of the same description, or without breaking in upon
the provisions of a statute, it is better to suffer this conspiracy
to succeed than to disturb the titles of others, by infringing
settled principles, or the provisions of an act of parliament.
3. . The will and codicils being void, Henet Bond died
intestate.
Upon the death of Henry Bond, the persons engaged in this
conspiracy got possession of his house, his title deeds and per-
sonal fortune, and of everything which could be used to protect
their possession against the heir. Possessing all these papers
and documents, they had the completest means of investigating
138 LORD REDESDALE.
the heirship. Even the very evidence of the marriage (if the
completest existed) fell into their hands. Under these circum-
stances Dr. John Bond came to Ireland and made his claim.
He found means to get into possession of that part of the prop-
erty which was in the occupation of tenants, by prevailing on
them to attorn to him ; and he and his creditors have been in
possession ever since of these parts.
It is admitted, if Dr. John Bond was not the heir at law to
Henry Bond, that Elizabeth McGeough was. There is no
question as to her title, except the legitimacy of Dr. John
Bond, and the wiU of Henry set up by the defendants, suppos-
ing it an operative devise. Dr. John Bond filed his biU in
October, 1755, to enable him to discuss the question as to thia
will. He charged another will, devising the property to him-
self, which, if established, would have put the question of his
legitimacy out of the case ; but the evidence in the cause is
silent as to that wiU ; therefore it is out of the question, and I
must now take it that Henry Bond died intestate.
4. Object of 0EiQmA.L and supplemental bills filed by
De. Bond in 1755 and 1756. — The Malone suit.
The bill of 1755 required a production of all instruments
in the hands of the defendants, and prayed an injunction as to
the parts of the estate of which Dr. Bond was in possession,
and for which ejectments had been brought by the persons
claiming under the alleged will ; it also suggested the fraudu-
lent proceedings which had been taken in collusion with Mr.
and Mrs. MeGreough. This bill was brought therefore by Dr.
Bond, on the supposition that he had a right to the assistance
of this court to try his title at law to the lands now in question,
and to retain possession of the others in the meantime.
In 1756 this bill was amended by a new bill put on the file,
distinctly praying that the real will of Henry Bond might be
brought in and deposited in court. That was a clear, equitable
title in Dr. Bond. He might be mistaken in point of fact, but
he was right in point of jurisdiction. The bill so amended
prayed an injunction in the same way as the former bill did.
On the 19th of January, 1757, pending this suit, and whilst
Dr. Bond was unable to bring an ejectment, for want of the
BOND V. HOPKINS. 130
necessary discoveries sought by his bill, Malone and the other
persons claiming under the will set up by them, filed their bill.
It prayed that the will which they set up might be established y
that they might be quieted in the possession of such part of the ♦
estates as they were in possession of, and that the tenants of
the other parts might be obliged to pay their rents to them, or
that a receiver might be appointed.
6. Statute of limitations does not eun against one seek-
ing TO GET evidence.
In this way both parties put themselves into a court of
equity — Dr. Bond necessarily. It was impossible he could pro-
ceed at law without discovering what were the instruments
which had been procured from his father. He could not enjoy
the benefit of the instrument devising to him, if any such there
were, unless it was discovered and produced ; and he had a
right to seek the discovery against those persons who had pos-
sessed all the papers of the deceased. It is impossible, when
persons thus possess themselves of all the papers of a dead man,
and keep the party who may be entitled in the dark, that lapse
of time should be allowed to prejudice the party so kept in the
dark, while he is seeking in a court of equity the discovery to
which he is entitled. Therefore I throw out of the case the
lapse of time between the arrival of Dr. Bond, and January,
1757.
6. The only issue in the Malone suit was the validitit
OF THE WILL AND CODICILS OF Db. Bond's FATHER.
The bill then filed by Malone and others proceeded but
slowly ; it brought before the court Dr. Bond, and by an
amendment, McGeough and wife also ; and it made all the ten-
ants parties. As amended, therefore, it put the title of the
plaintiffs therein merely on the will set up by them, calling on
Dr. Bond and Mrs. McGeough to interplead as to the question
of heirship, and praying to be quieted against both ; putting the
title merely on the issue of devisavit vel non. Unless it could
be considered as amounting to an undertaking to put the title
on this issue merely, it was an improper bill ; but the court con-
sidered it as so doing, and as properly so doing, and accord-
140 LORD REDESDALE.
ingly, on the 10th of May, 1767, directed an issue on the single
fact, whether the alleged will and codicil wei-e the real will and
codicil of Henry Bond. That was the only question conceived
to be in issue between the plaintiffs and defendants in that cause.
Notwithstanding this suit ejectments had been brought by
Malone and the other persons claiming under the alleged will ;
an order to elect was obtained, and they elected to proceed in
equity, and by that election they submitted to have the question
discussed in equity. Dr. Bon nad at that time his own bill
pending (originally properly) on the file, but I take it his pro-
ceedings were suspended by the other bill bringing the same
question, as to the will set up against him, before the court.
Under these circumstances Malone's cause was brought to a
hearing, and an issue was directed. The cause was reheard,
merely as to the venue for the trial of the issue, and the decree
aflBrmed on the rehearing. In consequence (whatever I may
think of the proceeding), I cannot take the decree of the 10th
of May, 1767, to have been a slip of the court, but that the
court on deliberation conceived it proper to direct that issue.
If it had been found in favor of the plaintiffs, the court would
have directed Dr. Bond to give up the estates, of which he was
in possession. He had put himself on the question of will or
no will, admitting that to be the question on which the title
stood as between him .and the plaintiffs in that cause. An
order was made between the hearing and the rehearing, that the
plaintiffs should give security for the rents of those parts of the
estates of which they were in possession. It is evident that
was done under the impression that otherwise an injury might
arise to Dr. Bond from the delay. It is not important with re-
spect to the title to these rents in equity, whether security was
in fact given or not ; but if a recognizance had been entered
into, the court was bound to give Dr. Bond the benefit of that
recognizance.
7. The will aot> codicils declared null by the decree
OF 1770.
The issue was tried in 1769, and there was a finding against
the will. An application was made for a new trial, which was
refused with costs. The final decree was pronounced on 25th
BOND V. HOPKINS. 141
Jiily, 1770, tlie certificate of the verdict being confirmed, the
bill was dismissed with costs. I do not conceive that nothing
is pronounced by this decree respecting the pretended will and
codicil. Dr. Bond gained at least this right under the decree,
that the will and codicil so condemned should form no obstacle
in future to his title. In that respect, therefore, I think the
Master of the Rolls has not gone far enough in the relief which
h'e has given under the present bill. I think he should have
prevented the setting up of these instruments to defeat the title
of Dr. Bond.
8. Dk. Bond unjustly depeived of the BENEPrr of the decree
OF 1770. — His suffeeings and death.
Some time after the dismissal of Malone's bill, a very dis-
graceful transaction took place. An attempt was made by Dr.
Bond, under pretense of an injunction, to get into possession
of Bondville. It is not wonderful that he should be mad with
disappointment at finding, after such a scene of litigation, ter-
minated so successfully for him on the trial of the issue, that he
was not in possession. If the decree of 1770 was not to be fol-
lowed up by any benefit to him, the whole proceeding was a
mockery, and ought not to have been suffered ; but I cannot
conceive the court so intended, for though he was not author-
ized by it to put himseK in possession by force, yet the court
must have intended that the question of wiU or no wiU should
be forever closed between the parties, and that the plaintiflf, in
the bill of 1757, should be precluded from setting up a title
under that wiH, or under the mere possession which they held
under pretense of that will.
The litigation had involved Dr. Bond in the utmost difficul-
ties. He died in prison in the greatest distress in 1774. The
costs ordered to him were not paid. It is said other costs due
on his part were not paid by him, but the balance must have
been in his favor. I take it, his situation was that of extreme
misery, produced by the fraud of these persons. If they had
not fabricated this will, but had said on his arrival, " we do not
know who is heir ; we will deliver up possession to the heir,
whoever he is," that would have been quickly decided; but
they set up this will, and thus by the semblance of right pre-
142 LOKD REDESDALE. »
vailed on a court of equity to direct an issue, and protect them
in the meantime in the possession. If they had not set up this
title, the court would not have protected them in the possession.
9. Length of time, wheee possession is undee Coloe of
title, will not peejudicb eight of teue ownee.
To a certain extent, the rule that a party shall not be allowed
to change the ground of his possession, is just. In this cauBe
it is particularly so. The question here is, whether a court of
equity should suffer length of time to prejudice the title, where
the possession was protected by the court as a lawful^ posses-
sion, by force of instruments, afterwards condemned by the
court as fraudulent ; and the court therefore cannot suffer these
parties now to use their possession, whilst it was so protected, as
a mere unlawful possession. I must therefore distinguish the
possession to 1770, protected as it was by the court, under color
of these instruments set up as the will and codicil of Henry
Bond, from the subsequent possession ; and on that ground
alone I think there is sufficient to support the decree of the
Master of the Kolls. I think the decree ought to have gone
further ; but before I discuss that part of the case, 1 think it
important that the question raised against the decree as it stands
on the statute of limitations, should be f uUy discussed.
10. Application of the statute of limitations to stnxs in
EQUITY.
The statute of limitations * does not apply in terms to pro-
ceedings in courts of equity ; it applies to particular autions at
common law, and limits the time within which they shall be
brought, according to the nature of these actions : but it does
not say there shall be no recovery in any other mode of pro-
ceeding. The first part of the preamble applies to particular
writs ; the second part to quiet possessions ; and the enactment
proceeds on the first part only. At the time of passing that
act in this country, suits in equity were very common, and the
manner in which courts of equity had considered the statute of
limitations in England was well understood. Therefore this act
* 10 Car. I, aess. 2, c. 6.
BOND v. HOPKINS.
143
must be considered as having passed with full knowledge on
the part of the legislature of the construction put upon a simi-
lar statute in England, in proceedings in courts of equity ; and
that courts of equity would not probably be considered as af-
fected by it, otherwise than as courts had been considered as
afiected by the English act ; that is, it would be considered as
affecting equitable titles, and equitable titles by analogy to it.
There are certain principles on which courts of equity act,
■which are very well settled. The cases which occur are vari-
ous, but they are decided on fixed principles. Courts of equity
have in this respect no more discretionary power than courts of
law. They decide new cases as they arise, by the principles on
which former eases have been decided, and may thus illustrate
or enlarge the operation of those principles ; but the principles
are as fixed and certain as the principles on which the courts of
common law proceed.
Nothing is better established in courts of equity (and it was
established long before this act), than that where a title exists
at law and in conscience, and the effectual assertion of it at law
is unconscientiously obstructed, relief should be given in equity ;
and that where a title exists in conscience, though there be none
at law, relief should also, though in a different mode, be given
in equity. Both these cases are considered by courts of equity as
affected by the statute of limitations ; that is, if the equitable title
be not sued upon within the time within which a legal title of
the same nature ought to be sued upon, to prevent the bar created
by the statute, the court, acting by analogy to the statute, will
not relieve. If the party be guilty of such laches in prosecut-
ing his equitable title as would bar him, if his title were solely
at law, he shall be barred in equity ; but that is aU the opera-
tion this statute has or ought to have on proceedings in equity,
and the statute having been made in this country after these
principles had been fully established by the decisions of the
courts of equity in England, on the statute of limitations made
in that country, it must have been the intent of the legislature
here to leave it open to courts of equity, guided by their estab-
lished principles, to determine how far the statutes should be
applied to their proceedings. If a court of equity goes be-
yond the line which it ought to adopt as its limit, there is a
144 LORD EEDE8DALE.
court of last resort wiicli may correct its errors. If that court
should act so as to alter instead of declaring the law, the legis-
lature may interfere, but if the court of last resort decides, and
the legislature acquiesces, the law must be taken to be accord-
ing to the decision.
11. Equttt will peevent an advajstage gained at law
feom being used against conscience.
One acknowledged principle on which courts of equity give
relief, is to prevent an advantage gained at law from being used
against conscience. There are two modes by which the court
gives relief in such cases ; one direct, the other indirect. In
the first mode it acts by giving of itself full relief ; in the sec-
ond, by enabling the party to try his title at law, without the
impediments which may against conscience be opposed at law
to his proceedings. Many instances of these may be pijt. A
person having a right in equity may not have a right to bring
an action at law. He may be compelled to come into equity to
obtain leave to proceed at law in the name of the person having
the legal right. So, a party may have a title at law, if tempo-
rary bars were out of the way ;-it happens frequently, from the
complications of titles to lands, especially in this country (where
such titles are generally much more complicated than in Eng-
land), that the true question cannot be got at at law, without
the interference of a court of equity, or the agreement of the
parties.
Whether this court will interfere to take from one in favor
of another that which would be a defense at law, depends on
what is called good conscience. In this country the registry act
prevents the discussion of questions on equal equities, which
often arises in England ; as for instance, in England, a later in-
cumbrancer, without notice, may gain an advantage at law
over a former ; and a court of equity does not consider itself
warranted to take away his advantage. A satisfied term may
protect the inheritance, and it is the custom to procure assign-
ments of such, and a honafide purchaser is allowed to use it for
his protection, if in point of conscience he ought to use it ;
that is, if he be a purchaser without notice. And in the pres-
ent case it is not disputed that temporary bars ought to be put
BOND V. HOPKINS. 1^5
out of the way ; but it is said that the bar arising from lapse of
time ought not to be removed. Why not as well as a satisfied
term, if used against conscience ?
12. Where the equitable title is not baeeed, the statute
of lzmttations at law is no bab in equitt.
But it is contended that the bar arising from the statute of
limitations ought not to be removed, because the enactment of
the statute is positive. The answer is, the positive enactment
has nothing to do with the case. The question is not, wli ether
it shall operate in a case provided for by the positive enactment
of the statute, but whether it shall operate in a case not pro-
vided for by the words of the act, and to which the act can ap-
ply only so far as it governs decisions in courts of equity ; that
is, whether it shall prevent a court of equity doing justice ac-
cording to good conscience, where the equitable title is not
barred by lapse of time, although the legal title is so barred.
It is admitted that in a case where this court may decree pos-
session (supposing the suit instituted in time), it wiU not be pre-
vented by the statute of limitations from doing justice, by a
direct decree, although before the time of making that decree,
the lapse of time would bar proceedings on a legal title. But
it is said it cannot do justice indirectly ; that is, it cannot do
justice where it thinks fit to put the question of title in a train
of discussion at law, by directing a trial at law to ascertain
facts, and the law arising on those facts, which is only one
means of doing justice used by courts of equity, and a means
used because the court will not break in on legal proceedings
more than is necessary for the purposes of justice, but will suf-
fer the course of the law to procaed as far as with justice it
can. It is admitted, even in that indirect mode of administer-
ing relief, if a term for years or any other temporary bar be an
impediment to justice, it may be put out of the way. There is
no difficulty made upon that part of the case.
It is admitted, also, that where the court is to act directly
and by itself, it is not bound by the words of the statute, or by
the spirit of it, provided the suit in equity is instituted in due
time. It should seem to follow (though there were no case),
that when it acts indirectly, it should be no more barred by the
10
146 LORD EEDESDALE.
statute than when it acts directly. Barnesly v. Powell, 1 Ves.
285, is an authority to show that if the court could not, from
the nature of the case, do justice indirectly, by putting the title
in a course of trial in another court, it ought to act upon the
matter itself, and give direct relief. But it is clear that courts
of equity have, under the correction of the court of dernier re-
sort, and with the acquiescence of the legislature, decided on
the principles on which the Master of tlie Rolls' decree is
founded. M'Kenzie v.- Powis, 4 Cro. C. 328; Pincke v.
Thornycroft, 1 Bro. C. 289 ; s. c. Dom. Proc. 1784, reported
in Cruise on Fines, 366,* and many other cases.
In the first of these cases, the appeal was on the single
ground that the court of equity had not set the statute of lim-
itations out of the way. It is evident that courts of equity had
been then in the habit of removing the statute out of the way,
for so much time as had run pending the cause in equity.
The dernier resort thought that from the circumstances of
that case it should be put whoUy out of the way. Pincke v.
Thornycroft is on the same principle ; the bar there had run
during the suit. The fine was first thrown in the party's way
in that case, not as operating by length of time, but because he
had not entered to avoid it. It might have been said that the
party should have searched whether there was a fine before he
proceeded at law, and that he was negligent in not doing so.
But it was held to be against conscience to make use of a fine
levied pending a suit in equity, a suit instituted for the purpose
of obtaining the discovery upon which that ejectment pro-
ceeded. The suit was a proper one. The devisees had got pos-
session of all the title deeds. The plaintiff, as heir, had a right
to call on them in the manner he did by his biU, for so far as
they were not devisees of any part of the estate, they held the
deeds relating to that part, in trust for him. There was no
fraud; they were bona fide devisees; the only doubt was,
whether the woids used in the will were sufiiciently compre-
hensive to carry the farm in question. There Lord Thurlow
and the House of Lords, on the appeal, were clearly of opinion
that non-claim on the fine, levied pending that suit, should not
*4 Bro. Pari. Cas. 92, 2d ed.
BOND V. HOPKINS. li'i'
be made use of to prejudice the legal title. That case is always
cited with approbation. The principle therefore is fully estab-
Eshed with reference to the statute of limitations and the stat-
ute of fines.
13. Equity will not allow advantage to be taken under
THE statute of FRAUDS, WHERE IT IS AGAINST CONSCIENCE.
The same principle is also established by what the court
does upon the statute of frauds. The statute of frauds says
that no action or suit shall be maintained on an agreement re-
lating to lands which is not in writing, signed by the party to
be charged with it ; and yet the court is in the daily habit of
relieving, where the party seeking relief has been put in a situa-
tion which makes it against conscience in the other party to in-
sist on the want of writing so signed as a bar to his relief. The
£rst case (apparently) of this kind was Foxcraf t v. Lyster, cited
2 Yem. 456, and reported in Colles' Pari. Gas. 108. That case
was decided on a principle acted upon in courts of law, though
not applicable by the modes of proceeding in a court of law to
the particular case. It was against conscience to suffer the
party who had entered and expended his money on the faith of
a parol agreement to be treated as a trespasser, and the other
party to enjoy the advantage of the money he had laid out.
At law fraud destroys right. If I mix my com with an-
other's he takes all, but if I induce another to mix his corn
with mine, I cannot then insist on having the whole. The law
in that case does not give me his corn. The case of Foxcraft
•u. Lyster, therefore, 1 conceive was decided on clear principle ;
though whether the cases founded on that case have been all so
well considered I wiU not take upon me to say. But it appears
from these cases that courts of equity have decided on equitable
grounds, in contradiction to the positive enactment of the stat-
nte of frauds, though their proceedings are in words included
in it, whereas they are not included in the words of the enact-
ment of the statute of limitations.
14. Authority of Lord Eldon in Pulteney v. Wareen.
All these cases were discussed in Pulteney v. "Warren, 6
Yes. jun. Y3. It was there decided to be against conscience to
14:8 LORD EEDESDALE.
use an advantage which the party had gained by delay produced
by himself, through the acts of the courts of law and equity ;
and though these courts had not made the terms for the party
injured which they should have done, yet it was held that that
omission should not prejudice him. The words of Lord Eldon
are these : " If there be a principle on which courts of justice
ought to act without scruple, it is this ; to relieve parties against
the injustice occasioned by its own acts or oversights, at the in-
stance of the party against whom the relief is sought." That
case is unquestionable. There, accident had produced this con-
sequence, that no action could be brought at law. What dififer-
ence is there between the case where no action could be
brought, and that where no effectual action could be brought?
It would be very strange that a party having no pretence finally
to relief in equity should get it, in effect, by the delay occa-
sioned by the pretence under which he obtained the interfer-
ence of the court in his favor.*
Under these circumstances I have no diflBculty in holding
that the statute of limitations, in the manner it has been in-
sisted on, should not operate as a bar, if the lapse of time (since
the title to equitable relief began) does not prevent relief in
equity on that title ; and this brings me to the second part of
the case ; whether the party now applying has come into this
court in time.
15. The statute began to ettn m 1770, so that this suit,
COMMENCED IN 1776, WAS NOT BAEEED.
The bill of 1776 is to be taken as that on which this suit is
now depending. I cannot take it up on the bills of 1755 or
1756, for though not dismissed, they were to a certain degree
abandoned. Under color of the will which was set up by the
defendants, their possession was protected by a court of equity
during the suit instituted by them, so that I must take their
possession, as protected by the statute against relief in equity,
to be only from 1770, when their suit was finally dismissed.
Therefore the bill of 1776 is in ample time. If Dr. Bond bad
* Vide Duval v. Terry, Show. Pari. Oas. 16. Semble on this principle, interest
given beyond the penalty, on a bond.
BOND T. HOPKINS. 1^9
lived to 1776, he would have had a clear title to put out of the
way what was occasioned by the act of the court, assuming ju-
risdiction of the whole question, and acting in a way that would
have deprived Dr. Bond of the whole estate if it had decided
against him. If the suit had lasted till 1776 there could be no
doubt of this.
It would be monstrous to say otherwise ; it would be mon-
strous to say, "you have succeeded in impeaching the will,
on which the whole of the case of the other party was put, but
in effect that wiU has been established, because the time that has
elapsed pending the suit, prevents your recovery at law."
16. A PAKTT HAS TWENTY TEARS DTTRING WHICH CT SHALL BE
OPEN TO HIM TO PROCEED TO ASSERT HIS TITLE.
This brings the case clearly to the question, whether those
who framed this statute with the fuU knowledge of the decis-
ions upon a similar statute in England, did not mean that par-
ties should have twenty years during which it should be ofen
to them to proceed at law ; and I take that to be the true in-
tent and meaning of the act, and the reason for not including
in the words of the enactment, proceedings in courts of equity.
Here Dr. Bond could not bring an ejectment pending the suit
instituted in 1757 ; the court at least conceived that he could
not, and required security for the rents and profits, from the
other party. On this ground, therefore, I conceive the opera-
tion of the statute ought to be taken from the decree of dis-
mission in 1770.
17. A NEW EQUITABLE TITLE ACCEITED TO De. BoWD UNDER
THE DECREE OF 177C.
But there is another ground in this case for relief to be
given directly by the court itself ; I think, from the suit insti-
tuted in 1757, and from the decree of 1770, a new equitable
title accrued to Dr. Bond : for the result of that suit and of the
decree, I conceive should be, that the parties to it should be
prevented setting up the wUl against his title in any future lit-
igation. That I consider is a new equitable right in Dr. Bond,
accrued to him by the decision in 1770. There is also another
new equitable right which he gained by those proceedings ; the
150 LOED REDESDALE.
bill (of 1757) was brouglit against Dr. Bond and Mrs.
McGeough, and was calculated to bind both ; it went on this
ground : '* We, (the plaintiffs in that bill,) have no title but
under the will ; we are entitled to a decree establishing the will
against both, no matter which is heir ; " and perhaps the ground
on which the court proceeded in directing the issue was, that
an ejectment against one would not decide the title against the
other ; and though that bill puts in issue the legitimacy of Dr.
Bond, it could only be for the purpose of compelling Dr. Bond
and Mrs. McGeough to discuss the question between themselves.
The plaintiffs had no right otherwise to put the question in
litigation; and suppose Dr. Bond and Mrs. McGeough had
agreed to divide the estate, and had said so by their answers ;
the court would not have suffered the question of legitimacy to
be discussed. Mrs. McGeough declined to be a party to the
issue on the will, and Dr. Bond's representatives have now a
right to say, she declined it because she admitted his legitimacy.
There was no evidence on the part of Mrs. McGeough to im-
peach his legitimacy ; and the plaintiffs took the issue with Dr.
Bond on the will, as the true heir, and have now no right to
dispute his legitimacy. Therefore, Dr. Bond gained also this
right, by the suit in 1757, and the decree in 1770 ; that the per-
sons who were plaintiffs in that suit should not set up his ille-
gitimacy in bar of his title ; and they must be taken to have
offered, by their suit, to deliver up the possession to Dr. Bond
or Mrs. McGeough, whichever should appear to be the heir, if
the finding should be against the will.
Therefore, Dr. Bond acquired anew right on this ground at
the end of that suit. He might either, according to the prac-
tice of this court, have amended his bill, which was still on the
file, or have filed a new one, stating the termination of the suit
of 1757 by the decree of 1770, and calling for the possession on
the ground of that decree. Mrs. McGeough must indeed have
been a party, and, perhaps, might still have tried the question
of legitimacy ; but the court ought in the meantime to have
taken the possession from the plaintiffs in the bill of 1757 ;
and if it allowed Mrs. McGeough to try an issue with Dr.
Bond on his legitimacy, which I think very questionable, it
ought to have delivered the possession to whomsoever should
BOND V. HOPKINS. 151
be found finally to have tlie right, on the discussion of the
question of legitimacy. The court ought not to have enter-
tained the suit of 1757, unless such was to be the effect of it.
18. Db. Bond not bound to file a ceoss-bill.
It has been said, doctor Bond might have filed a cross-bill,
and that it was his fault not to do so, or to bring forward his
own bill ; but he was not bound to do so. In the Attorney
General v. Whorwood, 1 Yes. 534 (but imperfectly reported),
the case could not have been fully decided on the bills then be-
fore the court ; and on a further hearing on the 11th and 13th
June, 1755, upon exceptions to the master's report, and the
special matter in that report, the court directed a supplemental
information to be filed by the attorney-general, to bring before
the court a further question respecting to colleges not parties to
the original information ; and by an order of the 28th July,
1755, the court gave leave to the heir at law and next of kin to
file bills against the colleges, and to assert their titles. The
heir at law and next of kin did so, and finally obtained decrees
on their rights, the dispositions in favor of all the colleges
.being determined by the court to be void. Suppose no such
bills had been filed, and the court had determined on the in-
formation of the attorney-general only, to which the heir and
next of kin were parties defendants and brought before the
court to bind their rights, and that, pending the suit on these
informations, the statute of limitations had run against the title
of the heir, ought the court to have permitted it to destroy that
title?
I have no doubt, therefore, that when the bill of 1757 was
dismissed in 1770, if a bill had been filed by Doctor Bond
against the parties to the present suit, saying, " I have a right
to this estate against you, if Mrs. McGeough has not ; and I
am entitled to a perpetual injunction against you, founded on
what has passed in your suit, and to take BondviUe out of your
possession ; to have an account of the rents against you, and
the benefit of the recognizance for that purpose." His right to
this relief would have been considered as a clear right arising
out of the decree of 1770, and he would have been held enti-
tled to the account, and the benefit of the recognizance, if any
152 LOED REDESDALE.
had been entered into. That this was meant by the court, and
that the bill of 1776 was thus acted upon, is clear, for an in-
junction was awarded in 1778, to stay proceedings on the eject-
ments which had been brought in 1775 ; and upon what ground
could that have been, but on the ground that the decree of
1770 had definitively condemned the will, and entitled Doctor
Bond to restrain those who claimed under it from ever setting
it up against him.
19. Bill suffered to be taken pko confebso, equal to as
ADMISSION of the FACT IN ISSUE.
The decree of 1770 is therefore to be considered as the
foundation of the present bill, which is brought to have the
benefit of that decree ; and I ought to give the same relief as if
this had been a cross-bill, or a bill filed immediately by Dr.
Bond, unless the subsequent lapse of time makes a difference.
Therefore I ought to decree a perpetual injunction as to the
parts of the estate of which he was in possession at the time of
that decree, if it be necessary; and as to the other parts, I
should decree the possession to the plaintiffs in this suit, unless
the title of Mrs. McGeough stands in the way. But it does
not, because, as the heir of Mrs. McGeough has suffered this
biU to be taken pro confesso, it is the same as if an issue had
been directed between the plaintiffs and Mrs. McGeough, and
found in favor of the plaintiffs. Even if Mrs. McGeough's
heir had answered and contested the legitimacy of Dr. Bond, I
should Lave had much doubt about letting him try the question
of legitimacy now, because Mrs. McGeough should have made
herself a party to the issue formerly directed, if she meant to
try that question ; and it was unconscionable to put Dr. Bond
alone to try the question on the will at his expense. The
McGeoughs, too, may be considered as having admitted the
legitimacy of Di-. Bond, for since the will was condemned in
1770, no ejectment has been brought by them for the estates of
which he got the possession.
20. Plaintiffs not baeeed by the statute of limitations.
The only remaining question is whether length of time since
the decree of 1770 operates at all, conscientiously, or by that
BOND V. HOPKINS 153
analogy to the provisions in the statute of limitations which has
been applied by courts of equity to their proceedings. The
first is out of the question. This must be taken to have been
an abominable conspiracy to deprive the heir of Henry Bond,
whoever he might be, of the property in question. It has una-
voidably been in part successful, by means of the possession,
which enabled the parties who held it to fight the right owner
with his own property. Therefore, there is nothing in point of
conscience to protect the possession of the defendants. They
have no right to try Dr. Bond's legitimacy. They cannot per-
vert a right existing only in the person claiming to be the true
heir, to the purposes of wrong. A biU was filed in 1T76, and
to this answers were put in, and replications filed. The present
plaintifE was all the while an infant. The defendants might
have set down the cause for dismissal, but if there had been a
single counsel to have stated the right of the infant, there must
have been a decree in his favor. The defendants therefore
did not stir. There was an order in 1785 for liberty for the
plaintiff to sue in forma pauperis, and on that order the de-
fendants must have been brought into court. The fine was
levied in 1786 ; in 1789 the infant came of age, and in 1792
filed this bill ; and it is sufficiently engrafted on the former
(notwithstanding the informality of it), as there was no demur-
rer. They both seek the benefit of the decree in 1770 ; they
are :£ounded properly on that decree, and properly seek the
benefit of it.
I have no doubt therefore, the decree of the Master of the
KoUs is to be sustained so far as is necessary. The decision of
the former suit gave the plaintiff a full right to call on the
court, by the bill of 1776, to put the statute of limitations out
of the way, but I think it warrants more ; I think it warrants a
perpetual injunction against the parties to that suit, to restrain
them from setting up the wUl, or the question of legitimacy, to
the prejudice of the plaintiff's title. McG-eough cannot now
set up the question of legitimacy for his mere benefit, and it is
against conscience that the other defendants should be per-
mitted to set it up for their benefit. Suppose there had been a
decree against McGeough in a separate cause, or a renunciation
by deed. The other defendant in this cause, having no title
154 LORD EEDESDALE.
founded on the question of illegitimacy, could not in point of
conscience be allowed to discuss that question. Therefore, the
decree of 1770 appears to me not only to be a foundation for
the Master of the Rolls' decree, but to give a clear equitable
title to the plaintiff, which nobody but Mrs. McGeough could
dispute.
21. Equttt will eegaed as done that which ought to
have been done.
I think the court should have made the delivering up
the possession to Dr. Bond (in case a verdict should be found
against the will) a condition on directing the issue ; but if the
court has not done all it ought to have done, that shall not prej-
udice the party, according to the decision of Lord Eldon, in
Pulteney v.. "Warren. So in the case of a bill waiving a forfeit-
ure, and on that ground seeking relief in a court of equity,
though plaintiff fail in obtaining that relief, he shall be re-
strained from insisting on the forfeiture at law.
I must consider the plaintiffs, in the biU of 1757, as having
undertaken to abide the fate of that cause, with respect to the
will under which they claimed, and the issue which they prayed,
as the foundation for a perpetual injunction against the heir.
The court itself was blamable in not having expressly provided
for Dr. Bond all it ought to have provided, either when direct-
ing the issue, or by the decree of 1770 ; but I think in point of
conscience those provisions ought to be considered as made,
which ought to have been made, and that the other parties
ought not in conscience to be permitted to take advantage of
that neglect or mistake of the court.
THEOPHILUS PARSONS.
Among the great names in the early history of American jurisprudence,
perhaps none will command greater respect than that of Thbophilus
Paksons, of Massachusetts. Bom in 1750, the year in which Jonathan
Mayhew, from his pulpit in Boston, pronounced that famous discourse
which was afterwards significantly termed the morning gun of the Revolu-
tion, Mr. Parsons lived through the critical period in which the colonies
achieved their independence, and in the time when the more diflBcult prob-
lem presented itself of shaping and framing 9, system of jurisprudence
adapted to the new condition which resulted from the success of the Amer-
ican arms. It was indeed a glorious period; but one which, in view of the
variety and novelty of the circumstances and conditions, presented questions
for solution which taxed the genius and abilities of the great men of the time.
In one respect Mr. Parsons was peculiarly fortunate, because his talents
and endowments were inherited by his son Theophilus, who, in our day and
generation, enjoyed a high reputation for professional learning, and who has
given to the world a treatise upon the law of contracts which ranks, in En-
gland and America, as a standard text.
The elder Parsons was chosen Chief Justice fo* the commonwealth of
Massachusetts in 1806, to succeed Judge Dana, and filled the position till
the time of his death in 1813. When called to preside upon the Bench, he
was in the enjoyment of a very extensive and lucrative practice at the bar,
worth $10,000 a year, a sum which in his day was esteemed a handsome for-
tune. He accomplished many useful reforms, and did much to facilitate the
transaction of business in the courts, and to break up the vicious system of
delay which had grown up and burdened and clogged the calendars to an
extent which resulted practically to almost a substantial denial of justice.
The profession was also indebted to him for the establishment of a system
of nm prills circuits, at which a vast amount of business was periodically dis-
posed of to the great convenience of suitors and counsel.
Chief Justice Parsons, besides being a profound lawyer, achieved dis-
tinction also as a scholar, having acquii-ed eminence, not only in the classics
and the elegant branches of polite literature, but in every department of
science and philosophy taught in the schools. His decisions will be found
in the early volumes of the Massachusetts Reports, from the second to the
seventh, both inclusive. Brevity and clearness are the distinguishing fea-
tures of the style of the Chief Justice. He rarely wrote a long opinion, and
never unless the interest or importance of the subject demanded an elabor-
ate discussion. The opinions selected, bearing upon a variety of topics, suf-
ficiently illustrate the learning and ability of the Chief Justice, indicating the
qualities of his mind, and his mode of dealing with the questions arising
before him.
[155]
156
THEOPHILTTS PARSONS.
I.
MAKITIME CONTRACTS.— GOODS CONTRABAND
OF WAR.— RIGHTS OF NEUTRALS.
Richardson v. The Maine Insueanoe Co., Novembee Teem,
1810.
[6 MasB., 102.]
Analtsib of Opinion of Chief Justice Paesons.
The search and warning by the British
privateer neither a capture, arrest, de-
tention, or restraint, within the policy.
Notice of the bloclcade and warning to
discontinue voyage not per se a deten-
tion by a foreign prince.
Legal and illegal blockades. — Goods con-
traband of war.
Illicit voyages defined and classified.
Neutral intercourse In time of war.
When neutral insurer liable m neutral
country.
7. Goods contraband of war. — Munitions
of war.
8. Goods contraband of war, — Neutral mer-
chandise knowingly shipped to block-
aded port.
9. European maritime law.
10. Authorities collated and discussed.
zi. Fear of loss not a peril within the
policy.
12. Application of the law to the case at bar.
The facts in this case present some interesting questions, wliicli are very
ably discussed by tlie Chief Justice, respecting the law of maritime insur-
ance, and the rights and liabilities of neutral shippers in a neutral country.
When and under what circumstances can a neutral insure a cargo, or goods
contraband of war, against loss by capture and condemnation ? When this
particular peril is omitted from the policy, what circiunstances will amount
to a deviation or barratry, so as to discharge the policy ? These inquiries
are considered with great learning, and present a very clear idea of the law,
and the reasons upon which it is founded. The rule here laid down as to
what merchandise will be regarded contraband of war has come to be stand-
ard authority, and the language used in this opinion, on that branch of the
subject, is sometimes cited by elementary and text writers. In 1861, during
the war of the rebellion, goods contraband of war were declared, by General
Benjamin F. Butler, to embrace everything capable of being used in carrying
on military operations; and in the application of this rule, the Massachusetts
general, with all the deliberation of the Massachusetts judge, refused to re-
turn the negro slaves, who had ran away from their masters and taken
refuge within his lines, upon the ground that being used by the enemy to
carry on hostilities they were contraband of war. Prom this bit of elegant
satire the word "contraband," during the war, came to be synonymous
with negro slave.
The barque Active sailed from the port of Salem, in Massachusetts, bound
for the port of Malaga, in Spain, on the 11th of December, 1807. The de-
RICHARDSON v. THE MAINE INSURANCE CO. 157
fendants, on the 7th of December, four days previously, had insured the ves-
sel for $6,000, and, among other risks, against the perils of the sea, enemies,
men of war, takings at sea, arrests, restraints and detainments of all kings,
princes, people, etc. The British government had already promulgated
the famous Orders in Council of the 11th of November, 1807, in the Penin-
sular war which had arisen between France and England, and had blockaded
the Spanish ports, including the port of Malaga. Both plaintiffs and defend-
ants were ignorant of these facts when the vessel sailed. On the 3d of Jan-
uary, 1808, after meeting with several gales, from which damage accrued,
the Active was boarded by Peter Duval, Commander of the British privateer
Phoenix, who warned the master of the barque not to proceed to Malaga, and
delivered to him a copy of His Majesty's Orders in Council, dated November
11th, 1807, declaring that port, and all the ports of Spain, in a etate of
blockade, and prohibiting entrance thereto on penalty of forfeiture and con-
fiscation; and further warned him not to proceed to the port of destmation,
or any other port in Spain, but to proceed to a port in Great Britain, Gibral
tar or Malta, in conformity to said Orders in Council. Upon consultation
with the officers of the barque, it was agreed to abandon the voyage and re-
turn to Salem. On the return voyage, two days later, on the 5th of January,
1808, the Active was captured as a prize by a British privateer, and ordered
to the island of Nevis. On the 30th of January, however, the officers of
the Active succeeded m regaining possession of their barque ; and after en-
countering several gales, and sustaining additional damage thereby, she
arrived in Salem on the 38th of February, 1808, where she was seized by the
United States authorities imder the famous embargo laid by our government
on American ports. Notice of the loss was immediately given to the de-
fendants, and an offer of abandonment made.
This action was then brought on the policy of insurance. The declara-
tion contained three coimts, as follows: (1.) Loss by reason of the arrest of
the barque and her cargo when on the voyage insured, by British subjects
acting under the order of their sovereign, whereby the port of Malaga and
all the ports of Spain were declared in a state of blockade, and neutrals pro-
hibited, after notice, from entering the same on penalty of seizure and confis-
cation; also, loss by a subsequent arrest and capture by British subjects, and
a rescue by the master and crew of the barque ; also, loss by reason of the
embargo laid by the United States prior to her return to Salem, which con
tinued in force when the action was brought. (3.) Total loss by winds and
storms. (3.) |6,000 for money had and received.
The cause was argued by Jackson for the plaintiffs, and Dexter and Otis
for defendants. It was contended for the plaintiffs that the voyage which
the defendants undertook that .the ship should be able to perform, was de-
feated and lost by a peril within the policy. That the order of the British
sovereign prohibiting the barque from going to her enemy's port, and enforc-
ing obedience thereto with her fleets, so as to render it hazardous to proceed
thither, was a "restraint of princes " within the policy. That if the block-
ade of Malaga was lawful, plaintiffs' duty was to return to Salem and make
the best salvage they could for the underwriters. Defendants contended that
a necessity for altering the voyage could not of itself constitute a total loss,
158 THEOPHILUS PARSONS.
and the property being from that moment to the time of the abandonment in
safety, and fully in the possession and under the control of the assured,
there was not a total loss at the time of the abandonment. The Chief Jus-
tice delivered the following opinion :
PAESONS, C. J. — After reciting the facts in the case, and
ol)sei:ving that it might not be necessary to state the arrest, the
rescue, and the subsequent embargo, which occurred after the
master had discontinued his voyage to Malaga, and was return-
ing to Salem, his honor proceeded :
A principal question in the case is, whether on these facts,
the plaintiffs can recover a total loss, arising from the restraint
and detention of princes insured against, it being admitted that
after the notice and warning, the vessel and her cargo would
have been exposed to great danger of capture and condemna-
tion by pursuing her voyage to Malaga.
1. The seaech and waenxptg bt the BErnsH peivateee
NEITHEE A CAPTURE, AEEEST, DETENTIOK OE EE8TEAINT,
WITHIN THE POLICY.
From the facts it is manifest that the privateer, by coming
on board the barque, and by giving the notice, warning and
advice stated, did not capture her. A capture is a seizure as
prize, with the intent or expectation of obtaining a condemna-
tion. In this case there does not appear to be any actual seiz-
ure. The barque was brought to, and examined by the priva-
teer, as was lawful for her commander. From this examination
the vessel appears to be neutral, and bound to a port declared
by his sovereign to be blockaded, of which the master had not
received notice. The privateer does not then proceed to seize
her as prize, but after giving the master notice of the blockade,
disn)is8es her.
Neither from these facts, can the privateer be considered as
having arrested, restrained or detained the barque, so as to enti-
tle the owner to abandon, within the intent of the policy. For
in this instrument I know of no difEerence between the import
of restraint and detention. They are respectively the effect of
superior force, operating directly on the vessel. So long as a
ship is \inder restraint, so long she is detained ; and whenever
she is detained, she is under restraint. Neither have I found
RICHARDSON v. THE MAINE INSURANCE CO. 159
a book or case, relating to insurances, in wliicli a different con-
struction lias been given to these words.
Now it was lawful for the commander of a privateer to de-
tain the barque as a neutral vessel, for the purpose of search ;
and after the search she was discharged from this restraint.
And indeed in considering the conduct of the privateer, as
amounting either to capture, arrest, detention or restraint within
the policy, during the search, the plaintiff cannot prevail for
that cause, as on the termination of the search, and after the
notice, warning and advice, the barque was abandoned by the
privateer to the master, who immediately had the exclusive
possession of her.
2. Notice of the blockade and waening to DiscoNmnjE
VOYAGE NOT PEE SE A DETENTION BY A FOEEIGN PEINCB.
It has been argued that the notice and warning, given by
the privateer, is a restraint or a detention of a prince, within
the meaning of the policy ; because the barque could not after-
wards proceed to her destined port without great danger of
capture and condemnation.
But it cannot be admitted, that information at sea to a mas-
ter of a neutral vessel, that her port of destination is blockaded,
is of itself a restraint or detention of the vessel ; for this infor-
mation may as well be received from another neutral vessel
as from a privateer belonging to subjects of the blockading
sovereign. And as to the warning not to proceed to the block-
aded port, it cannot be material in this question ; for the future
danger of capture was not in any degree caused by the warning,
but wholly by the knowledge of the blockade ; for after this
knowledge the barque, continuing her voyage to the blockaded
port, would have been equally liable to capture and condemna-
tion as she would have been had the notice only been given,
and the warning to discontinue her voyage been omitted.
3. Legal and illegal blockades. — G-oods conteaband of
WAE.
If therefore it can be concluded from these facts, that the
barque has been detained or restrained by a prince, within the
160
THE0PHILU8 PARSONS.
intention of the policy, so as to entitle tlie owners to abandon,
that conclusion must result from the blockade of the port of
her destination, by one of the belligerent sovereigns, by which
she was prohibited from attempting to enter that port, on
penalty of condemnation as prize of war if captured in the
attempt.
In deciding on this point, it is not necessary to inquire
whether the blockade was actual, or only constructive, or
whether the orders in council were, or were not an interruption
of the lawful rights of neutral commerce. These are questions
which may be discussed and settled by the neutral and bellig-
erent sovereigns. But as between the parties to a contract of
insurance the effect is the same, whether the blockade is, or is
not authorized by the laws of war ; because the danger to the
assured is the same, and arises from the same cau^e, the act of
one of the powers at war.
Every species of neutral merchandise bound to a port known
to be blockaded, are goods contraband of war ; and the block-
ading power, on seizing them, will condemn them as prize of
war, on the ground that the neutral owner has forfeited his
neutral rights, by a breach of his neutral duty. If therefore
the master of the barque, after the knowledge of the blockade
of Malaga, had continued his voyage, and been captured by any
British armed ship, she would have been condemned, with her
cargo, as prize of war, for this supposed breach of neutrality.
To avoid this danger, which was great, the master discon-
tinued his voyage, and returned to Salem. The voyage being
thus wholly lost, the assured, on seasonably offering to abandon,
claim a total loss. This claim is resisted by the assurers, on
the ground that the voyage was not lost by any of the perils
insured against ; that the insurance did not cover a voyage to a
blockaded port ; and that if they had insured a cargo on such a
voyage, the voyage would have been illegal, and the policy
would have been void.
Several points are involved in this defense, which deserve
attention ; we will first consider the supposed nullity of a policy,
arising as it is said from insuring goods on illicit voyages.
BICHARDSON v. THE MAINE INSURANCE CO. 161
4. Illicit voyages defusted and classified.
Illicit voyages may be ranked ia several classes, some of
wliicli we will mention.
When tlie sovereign of the country to which the ship be-
longs, shall prohibit his subjects from trading with a foreign
country or port, whether the prohibition be a consequence of
his declaring war against the foreign country, or be made by an
express ordinance for any cause at the will of the sovereign, a
voyage to that country for the purpose of trade is illicit, and
all insurances on such voyages by his subjects are void, whether
the assurers had or had not knowledge of the prohibition. For
the law will not allow any effect to a contract made to protect a
traffic, which it has prohibited. A prohibition of this kind is
considered by Emerigon, c. 12, s. 31, I vol. 542, under the head
of " interdiction of commerce."
Another class of illicit voyages are those which are prohib-
ited by the trade laws of a foreign state, whether those laws
■ whoUy exclude the merchant ships of other states from its ports,
or only prohibit the importation or exportation of particular
species of goods. Because the municipal laws of any state have
not the force of laws without its jurisdiction ; voyages prohibited
in one state are not in any other state deemed for that reason
to be illegal. These voyages may therefore be the subjects of
insurance in any state in which they are not prohibited. And
if the assurer will expressly insure against seizure for ilhcit
trade, or if, with a f uU knowledge of the nature of the voyage,
he wiU insure it without making any exception, he wiU be bound
to indemnify the assured for the losses arising from the
breaches of the trade laws of the foreign state. But although
he may not take upon himself these losses, and thus be irre-
sponsible for them, yet he is answerable for any other losses
insured against, because the poKcy is not void.
The last class we shall mention, is the transportation by a
neutral of goods contraband of war to the country of either of
the belligerent powers. And here, it is said, that these voyages
are prohibited by the law of nations, which forms a part of the
municipal law of every state ; and consequently that an insur-
ance on such voyages, made in a neutral state, is prohibited by
11
162 THEOPHILUS PARSONS.
tte laws of that state ; and therefore, as in the case of an insur-
ance on interdicted commerce, is void.
5. N'ETITEAIi INTEEOOTJBSE IN TIME OF WAE.
That there are certain laws which form a part of the munic-
ipal laws of all civilized states, regulating their mutual inter-
course and duties, and thence called the law of nations, must be
admitted ; as for instance, the law of nations affecting the
rights and the security of ambassadors. But we do not consider
the law of nations, ascertaining what voyages or merchandise
are contraband of war, as having the same extent and effect. It
is agreed by every civilized state, that if the subject of a neu-
tral power shall attempt to furnish either of the belligerent
sovereigns with goods contraband of war, the other may right-
fully seize and condemn them as prize. But we do not know
of any rule, established by the law of nations, that the neutral
shipper of goods contraband of war, is an offender against Ms
own sovereign, and liable to be punished by the municipal laws .
of his own country.
"When a neutral sovereign is notified of a declaration of war,
he may, and usually does notify his subjects of it, with orders
to decline all contraband trade with the nations at war, declar-
ing that if they are taken in it, he cannot protect them, but not
announcing the trade as a violation of his own laws. Should
their sovereign offer to protect them, his conduct would be
incompatible with his neutrality. And as on the one hand, he
cannot complain of the confiscation of his subjects' goods, so
on the other, the power at war does not impute to him these
practices of his subjects. A neutral merchant is not obliged to
regard the state of war between other nations ; but if he ships
goods prohibited jure belli, they may be rightfully seized and
condemned. It is one of the cases, where the two conflicting
rights may exist, which either party may exercise, without
charging the other with doing wrong. As the transportation
is not prohibited by the laws of the neutral sovereign, his sub-
jects may lawfully be concerned in it ; and as the right of war
authorizes a belligerent power to seize and condemn the goods,
he may rightfully do it.
RICHAEDSON v. THE MAINE INST7RANCE CO. 163
"We will mention one other case. A neutral ship may law-
fully be laden with the property of one of the hostile powers ;
but the other may seize her, carry her into port, and lawfully
take from the ship his enemy's goods. Here are conflicting
rights, which are admitted by the power who shall seize ; for he
wiU pay the neutral his freight, when he acts fairly, attempting
no improper concealment.
But we know of no case where the neutral merchant has
been punished by his own sovereign for his contraband ship-
ments. If he will adventure on the trade, and his effects are
seized and condemned as prize ; to this penalty he must submit,
for his sovereign wiU not interfere, because the capture was
lawful. And it may be further observed, that if the exporta-
tion of contraband goods from a neutral country to a port of
either of the powers at war, is a trade, which from its nature is
prohibited by the laws of the neutral sovereign, then the policy
on such goods would be void, and the assurer would be ex-
empted from any loss or damage arising even from the danger
of the sea. But an exemption of this kind is not founded on
any sound principle, nor is it supported by any usage.
6. When nedteal insueee liable in nbuteal country.
We do not therefore discover any just distinction between
an interloping trade in a foreign port, illicit lege loci, and a
trade in transporting contraband goods, which is illicit jure
belli / so far as either may be an object of insurance by neutrals
in a neutral country. And we are satisfied that an insurance,
effected in the country of a neutral prince, by his subjects,
against capture and condemnation of their goods, because they
are contraband of war, is not prohibited by his laws, merely
because the capture and condemnation are justified by the laws
of war. But if goods contraliand of war are on cargo, the
assurer is not responsible for their capture and condemnation
on that account, unless either with a full knowledge of the na-
ture of the goods, and of the voyage, or by an express under-
taking, he shall insure them against such capture. So an insurer
is not answerable for a seizure and confiscation of goods for the
violation of the trade laws of a foreign port, unless with a full
knowledge of the trade, or by an express undertaking, he shall
164 THEOPHILUS PARSONS.
insure them against such seizure. But in both cases, where no
such special insurance is made, the policy is not void because
the ship is bound on an interloping or contraband voyage, but
the assurer will be answerable for the other risks, against which
he has insured.
Y. Goods oonteaband of wae. — Munitions of wae.
Goods contraband of war are of two descriptions : munitions
of war, the property of a neutral, bound from a neutral port to
the territory of either of the belligerents, after the existence of
the war is known ; and every species of neutral goods, bound
from a neutral port to a port belonging to either of the powers
at war, and known to be blockaded by the other power. The
principle therefore on which a belligerent will capture and con-
demn as prize the goods of a neutral, bound to a port known by
him to be blockaded, arises from the consideration that all such
goods are contraband of war.
We will consider the first description of contraband goods.
If, after the war is known to exist, a ship laden wholly or in
part with munitions of war, is insured to the country of one of
the powers at war, and the assurer has not assured against cap-
ture for contraband trade, the policy would not be void, but the
assurer would not be holden for a loss by condemnation on ac-
count of the contraband goods. So if the country to which the
ship was destined, engaged in war after the commencement of
the voyage, the policy would not be void ; but if the master,
after notice of hostilities, continued his voyage, and was con-
demned for being bound to a port of one of the belligerent na-
tions, with munitions of war on board, the assurer would not
be liable, because he did not insure against a capture for that
cause. This case is not distinguishable from a voyage prohib-
ited by the trade laws of a foreign port. If new regulations,
made during the voyage, should render the trade illicit, and the
master on his arrival should violate those regulations, and for
that cause the property insured should be confiscated, the assurer
will not be answerable, unless he had insured against seizure for
illicit trade. But if he had, he would be holden for the loss,
whether the trade became illicit before or after the commence-
ment of the voyage.
RICHARDSON v. THE MAINE INSURANCE CO. 3 65
It has, however, been supposed, that there is a difference be-
tween the cases ; for the loss in the former case, arose by condem-
nation /i^re helli ; and it is a rule that a declaration of war, or a
treaty of peace, made after the commencement of the risk, does
not vary the rights or the obligations of the parties to the policy.
This position is generally true, although it is not correct
when a war should happen between the nation to which the
ship belongs, and the nation to whose port the voyage is in-
sured, for on this event being known to the parties, the voyage
becomes illegal, being interdicted by the laws of the country to
which the ship belongs.
But it is unnecessary now to discuss the nature and extent
of this exception.
The effect of the rule, when it is applicable, is that each
party is bound by the contract, whether the perils insured
against become greater or less, by war or peace. The rule,
therefore, extends only to the degree of hazard, but not the na-
ture of the peril. For by the breaking out of the war, the
assurer becomes liable for no perils, which he had not insured
against, although the perils insured against may have become
much greater by this event.
8. Goods conteaband of war. — Neuteal mekohasdise know-
ingly SHIPPED TO blockaded POETS.
The other description of goods contraband of war, includes
all neutral merchandise, bound to a port known to be block-
aded. If before the commencement of the risk, the port is
known to be blockaded, and the assurer does not insure against
condemnation for contraband trade, the policy is good as to all
the risks insured against ; but the assurer is not responsible for
any loss arising from such condemnation. So if the port is not
known to be blockaded, until the ship is on her passage, the
assurer is not answerable for such condemnation, if, after notice,
the ship continues her voyage, and is captured. But if the as-
surer has insured agajinst a condemnation for contraband trade,
the policy is good, and he must answer for any loss arising from
a condemnation for that cause, whether the trade be contraband
because the goods are munitions of war, or because they are
destined or bound to a port known to be blockaded. Por the
166 THEOPHILUS PARSONS.
law is the same, because the reason is the same. And in the
case of contraband trade, the master, on discovering great dan-
ger in pursuing his voyage, as by learning that the port is block-
aded may, as in the case of pirates in the way, depart from his
voyage, seek an asylum in the nearest safe port, or even, if more
convenient, return to his original port and wait until the block-
ade be raised, or the blockading fleet be dispersed, and then may
continue his voyage, without being chargeable with deviation.
But if the master, knowing the inevitable danger of capture, if
he proceed on his voyage, should notwithstanding continue it,
and expose the vessel to certain seizure, this will be a loss not
arising from the perils insured against, but from a criminal
breach of the duty he owes to his owners, which is barratry.
Earle et al. v. Rowcrof t, 8 E. 126. If, however, on learning his
danger, the master abandon the voyage insured, and either re-
turn home, or proceed on another voyage, this will be a devia-
tion, by which the assurer is discharged. These positions
appear to me to result necessarily from the established princi-
ples of maritime law applicable to the contract of insurance.
9. EuEOPEAN MAEITIME LAW.
As the case before us is of much importance, we have en-
deavored to ascertain the practice in Europe in similar cases,
but without much success. ' Emerigon, c. 8, s. 5, 1 vol. 210,
notices policies on voyages, illicit by the laws of the country to
which the ship is destined ; and unless the insurance is made
with a full knowledge of the trade, the assurer is not holden for
a loss arising from the illicit trade. But no distinction is made,
whether the trade, become unlawful before or after the com-
mencement of the risk. Valin also notices the right to condemn
goods contraband of war (Lib. 3, tit. 9, art. 11), but we do not
find either in him, or in Emerigon, any principles stated, as
expressly applying to the insurance by a neutral on goods of
this description. But Emerigon, c. 12, s. 31, I vol. 542, partic-
ularly considers the cases of an interdiction of commerce with
any country or port, by the sovereign of the country to which
the ship belongs, whether the interdiction is a consequence of
declaring war, or arises from the express will of the prince. If
the interdiction happen before the commencement of the voy-
RICHARDSOIT v. THE MAINE INSURANCE CO. 167
age, the charter party is Toid ; but if after the commencement
of the risk, the insurance is not void, for the assurer shall be
entitled to his premium. If the interdiction happen while the
ship is on her passage, and she is obliged to return home, she
shall be entitled to her outward freight from the shippers, who
may recover it as an average from the assurers on the cargo ;
and the assurers on the ship shall be answerable for the wages
and provisions of the seamen home, having the benefit of the
freight out.
Our law in this respect is difEerent. For the ship cannot de-
mand freight but on delivering the goods, or by virtue of some
express provisions of the charter-party. And an insurer on the
ship is not answerable for the wages and provisions of the sea-
men, except when they are a general average.
But the blockade of a port by an enemy' s fleet is not a
case within the ordinance providing in cases of interdiction of
commerce. Yal. Lib. 3, tit. 1, art. 8. This is considered as a
temporary interruption, and the master may wait until the port
be opened, without prejudice to the policy.
In the English books the right to insure illicit trade seems
to be well settled (1 Marsh. 54, Doug. 233, Planehe v. Fletcher),
but there is no adjudged case determining whether insurance by
a neutral of goods contraband of war, is, or is not prohibited.
10. AuTHOEITIES COLLATED AND DISCUSSED.
There are three insurance causes where the ships were pre-
vented from entering their destined ports.
The first is the case of Hadkinson v. Eobinson, 3 Bos. & Pul.
388. The action was on a policy upon a cargo of pilchards, on
board the ship Pascaro, at and from Mount Bay to Naples ; and
the policy contained the usual memorandum, including fish. In
the outward passage the port of Naples was, by the govern-
ment of the country, shut against all English vessels on pain of
confiscation. The master having information of this fact, put
into Port Mahon for further intelligence. There the report
being confirmed, he sold the fish at a low price ; and on infor-
mation received by the owners they offered to abandon, on the
ground that the voyage was wholly lost. But it was adjudged.
168 THEOPHILUS PARSONS.
that althougli the loss of the voyage insured is good cause of
abandonment, if it arise from the perils insured against ; yet in
that case, the voyage was not lost by one of those perils, because
the detention of the cargo at a neutral port, in consequence of
the danger of entering the destined port, was not a peril insured
against.
It has been argued that this decision was founded on the
memorandum relating to the perishable nature of the cargo.
But we cannot be of that opinion ; for a cargo of fish may as
well be abandoned by a loss of the voyage, as a cargo of any
other description of merchandise.
The second case is that of Lubbock v. Kowcrof t, 5 Esp. Rep.
50. The insurance was on twenty bags of pepper on board the
ship Nelly, at and from London to Messina. The ship having
arrived at Minorca, it was found that Messina was in the hands
of, or blockaded by the French ; in consequence of which the
plaintiff offered to abandon to the defendant, and demanded a
total loss. But Lord EUenborough was of opinion that the
abandonment was from an apprehension of capture by the ene-
my, and not from any loss within the policy.
The last is the case of Barker v. Blakes, 9 East, 283. In
this case it was determined, that when a neutral ship bound
from America to Havre, was taken and carried into England,
and was there detained until Havre was declared to be in a state
of blockade, by which the further prosecution of the voyage
was prohibited, such detention, so prolonged, was a total loss
within the policy.
From the two first of these cases it appears that when the
port of destination, after the commencement of the voyage,
became hostile, a fear to enter it, because of the danger of cap-
ture, is not a loss of the voyage, within any peril insured
against. And in the third case, the declaring of Havre to be
blockaded is not considered as a loss of the voyage insured, be-
cause of the danger of attempting to enter it ; but a detention,
continued until the blockade, was considered as a loss of the
voyage, which authorized an abandonment, the detention being
a peril insured against.
RICHARDSON v. THE MAINE INSURANCE CO. 169
11. FeAK of lobs not a peril "WITHIN THE POLICY.
There remains for consideration one other point, arising out
of the defense. It is made a question, whether a well-grounded
fear that a total loss will arise from one of the perils insured
against, if the voyage be pursued, is itself a peril within the
policy, which will authorize the assured to abandon as for a
total loss. The question is stated on the supposition that the
peril, from which the loss is feared, is insured against by the
policy. And on the best copsideration we can give this ques-
tion we are satisfied that this fear of loss thus stated is not a
peril within the policy. It is not within the terms of the policy,
on any reasonable construction that can be given to them. To
admit it to be a peril insured against would be productive of
much uncertainty, would open a door to frauds on the assurer,
and would be repugnant to the principles recognized in the
cases of Hadkinson v. Kobinson, and Lubbock v. Rowcroft.
12. Application of the law to the case at bak.
We wiU now consider how far the several positions we have
endeavored to establish are applicable to the present case.
"WTien the ship sailed for Malaga, that port had been declared to
be in a state of blockade ; but as the parties had then no knowl-
edge of this fact, we consider that port as to them open. On
the voyage the master received correct information of the block-
ade. From that time, if he afterward continued his voyage to
the blockaded port, the cargo insured became contraband of
war, which exposed him on that account to capture and condem-
nation. A loss by capture and condemnation for that cause was
not insured against ; although it was competent for the assurers
to have taken that risk on themselves. But the policy was not
discharged. And if the master had continued his voyage, the
assurers would have remained answerable for such risks as they
had insured against, but for no others.
If the defendants had insured against capture for having on
board goods contraband of war, and the master had proceeded
on his voyage, and had been captured for that cause, they would
have been liable. Or the master, to avoid manifest danger of
capture, might in this case have gone to some safe port, or even
170 THE0PHILU8 PAKS0N8.
have Returned, if more convenient, to Ms original port, to wait
until the danger was removed, and he might afterwards have
pursued his voyage without prejudice to his insurance. But if,
instead of avoiding the danger that was manifest, the master
had voluntarily thrown himself in the way of the blockading
fleet, and had been thereby captured, the loss would have been
by his barratry.
In the case before us, the master, through fear of capture,
discontinued his voyage and returned home. But the fear of a
capture, when the capture is insured against, cannot amount to
a total loss, for which the owner may lawfully abandon ; and a
fortiori of such a capture as is not insured against.
The conclusion is, that although a just fear of capture occa-
sioned the loss of the voyage insured, yet that loss did not arise
from any of the perils insured against by the defendants, and
the plaintiffs cannot recover a total loss.
When the master discontinued his voyage, by which it is
understood an abandonment of it, with an intention in him no
further to pursue it, and sailed for his original port ; from that
time the poKcy was discharged. For all sea damage happen-
ing before, the plaintiffs can recover, if it exceed seven per
cent. The losses happening after the voyage insured was dis-
continued, and on the voyage'home, are not to be borne by the
defendants, because such losses did not happen in the voyage
they had insured. Although losses insured against, which hap-
pen after a departure from the usual course of the Voyage de-
scribed in the policy for good cause, may be a charge upon the
assurer ; yet when that voyage is once determined, we can sub-
stitute no new voyage in the place of it, and hold the assurer
answerable for any loss that may happen in the course of it.
For this reason it is not thought necessary to remark on the
subsequent capture, rescue and embargo, which are stated in
the case.
Pursuant to the agreement of the parties, the verdict must
be set aside and a new trial granted. And if the jury, on the
new trial, shall assess the sea damage, happening before the
discontinuance of the voyage, at more than seven per cent.,
then a verdict is to be found for such damages, otherwise a
verdict is to be taken for the defendants.
MILFORD V. WORCESTER.
171
II.
MAEEIAGE OONTEACT.— WHAT NECESSAET TO
CONSTITUTE.
MlLFOKD "V. WOKOEBTEE, SePTEMBEE TeEM, 1810.
[7 Mass., 48.]
Analysis of Opikion of Chief Justice Paesonb.
I. General observations as to the marriage
contract.
B. The law in England during the colonial
period.
3. The English statutes affecting the colo-
nies.
4. When marriage valid under the statute.
5. That the marriage was not in terms pro-
hibited immaterial.
6. Importance of the statute.
7. Qtiaker marriages.
8. When marriages illegal,
g. Effect of cohabitation.
The town of Milf ord sued the town of Worcester for the support and
relief of Stephen Temple, Rhoda Temple, and their six children. The
question involved on the trial was whether or not Stephen and Bhoda
were husband and wife, because Stephen's legal settlement was in "Wor-
cester, and if Ehoda was his lawful wife, then she and the children had
their legal settlement there also, and the town was liable for their support;
if not, then it was liable for the support of Stephen Temple only.
The marriage took place under the following circumstances : More than
twenty years before the action was brought — some time in 1784 — Stephen
Temple and Rhoda Essling came to a tavern in Upton, and producing a cer-
tificate showing they had published their intention to become man and wife,
requested a Mr. Dorr, a Justice of the Peace for the cotmty of Worcester, to
marry them, which he for some unaccountable reason declined to do, saying
he would take " no active part " in the ceremony. But Stephen and Rhoda
then and there, in the presence of the stubborn justice and before a number
of witnesses, consummated the marriage contract, Stephen declaring that he
took Rhoda as his lawful wife, Rhoda declaring that she took Stephen as
her lawful husband, and each made to the other the vows and promises
usual in contracting marriages. The parties thereafter lived and cohabited
together for more than twenty years, and reared a family of children.
The question then came before the court, as to whether after all the ageS
couple were really husband and wife.
The English statutes relating to the colony of Massachusetts, provided
for the solemnization of marriages by a civil magistrate or an ordained
minister, but forbade them to perform such ceremony in opposition to the
1T2 THEOPHILUS PARSONS.
■wishes of parents or guardians, under penalty of £50. After the revolution
laws -were passed regulating marriages (Laws 1785, ch. 86; 1786, ch. 3), for-
Ijidding marriages within the prohibited degrees, and declaring a marriage
■between a white person and any negro, Indian, or mulatto void, and provid-
ing punishments for solemnizing marriages except as prescribed by the
statute; but no marriages were declared void, though performed in violation
of the statute, except those embraced within the prohibited degrees, or be-
tween white persons and negroes, Indians, or mulattoes.
These statutes, both before and since the revolution, were simply declar-
atory or directory in their character, creating no obligation beyond the pen-
alty, and prohibiting only incestuous and miscegenous marriages. In En-
gland, it is true, there can be no valid marriage unless solemnized by an
ordained minister, but this rigid rule does not prevail except in places spe-
cially subject to the English statute.
The doctrine enunciated in this opinion, however, is stiU the law of
Massachusetts, and has been recently approved by Judge Parsons' learned
successor, Hon. Horace Gray, in the Commonwealth ®. Munson, 137 Mass.
459. But in a majority of the States, the views of the Chief Justice have not
been adopted, the weight of authority being in favor of the rule of the civil
law, which recognizes the right of the parties to take upon themselves the
obligation, and regarding consent as the essence of the contract, as expressed
in the maxim, consensus, non concvMtus, faeit Tnatrimonium. And this rule
has been adopted by the Supreme Court of the United States in Meister v.
Moore, 96 IT. S. 76, and State laws prescribing formalities as to the mode
of celebrating marriage, are regarded as declaratory, merely, and not manda-
tory, imless they contain express words of nullity, or terms of prohibition.
This opinion, however, is useful, since it indicates the views entertained by
the prominent lawyers of the revolutionary period as to the nature and
character of the marriage contract, and the statutory regulations vrith respect
to marriages in colonial times.
PAESONS, C. J. — This action is assumpsit for the main-
tenance of Stephen Temple, Ehoda Temple, said to be his wife,
and their six children, who, as the plaintiffs allege, are paupers
having their settlement in "Worcester. The cause has been
tried upon the general issue, and a verdict found for the plaint-
iffs, as to the maintenance of Stephen Temple; but against
them, as to the maintenance of Ehoda and the six children.
The plaintiffs move for a new trial upon the judge's report, in
which it is not stated whether the objection is to the judge's
direction, or to the verdict as against evidence.
From the report it appears to have been admitted by the
parties, that Stephen Temple's settlement was in "Worcester,
and that the jury did right in charging that town with his sup-
port. If Ehoda was his lawful wife, the six children would be
MILFORD V. WORCESTER. 173
legitimate, and she with her cliildren will have a derivative
settlement in Worcester, with her husband and their father.
The legality of the marriage between Stephen and Khoda was
therefore the only questions between the parties. If this mar-
riage is established, then the verdict must be set aside, and a
new trial granted, that MiKord may recover the money ex-
pended in maintaining the wife and the six children ; other-
wise the verdict is to stand.
1. General obseevations as to the maeeiage conteact.
Marriage is unquestionably a civil contract, founded in the
social nature of man, and intended to regulate, chasten and re-
fine the intercourse between the sexes ; and to multiply, pre-
serve and improve the species. It is an engagement, by which
a single man and a single woman of sufficient discretion take
each other for husband and wife. From the nature of the con-
tract it exists during the lives of the two parties, unless dis-
solved for causes, which defeat the object of marriage, or from
relations imposing duties repugnant to matrimonial rights and
obligations.
Marriage, being essential to the peace and harmony, and to
the virtues and improvements of civil society, it has been, in
all well regulated governments, among the first attention^ of
the civil magistrate to regulate marriages; by defining the
characters and relations of parties who may marry, so as to pre-
vent a confiict of duties, and to preserve the purity of families ;
by describing the solemnities, by which the contract shall be
executed, so as to guard against fraud, surprise, and seduc-
tion — by annexing civil rights to the parties and their issue,
to encourage marriage, and to discountenance wanton and las-
civious cohabitation, which, if not checked, is followed by pros-
tration of morals, and a dissolution of manners — and by de-
claring the causes and the judicature for rescinding the con-
tract, when the conduct of either party, and the interest of the
state authorize a dissolution. A marriage contracted by parties
authorized by law to contract, and solemnized in the manner
prescribed by law, is a lawful marriage, and to no other mar-
riage are incident the rights and privileges secured to husband
and wife, and to the issue of the marriage.
174 THEOPHILTJS PAESONS.
2. The law in England dueing the colonial peeiod.
The inquiry therefore in this case is, whether the mntual
engagement of Stephen Temple and Ehoda Essling, made at
"the tavern in Upton, under the circumstances there existing,
was a lawful marriage. Let us now examine the law.
When our ancestors left England, and ever since, it is weU
known that a lawful marriage there must be celebrated before
a clergyman in orders, and that all questions of marriage, di-
vorce, and alimony regularly belong to the ordinary. When
our ancestors first settled here, smarting under the arbitrary
censures of the ecclesiastical courts, they were not disposed to
invest their own clergy with any civil powers whatever ; but to
leave them wholly to the exercise of their pastoral functions.
With this impression in 1646, by an ordinance passed for the
due solemnization of marriages, no person is authorized to join
together in marriage any persons, but a magistrate, or some
other person to be appointed in such places where no magistrate
was near. And all persons were forbidden to join themselves
in marriage, but before some magistrate, or other person au-
thorized as aforesaid. Neither was the magistrate authorized to
permit the parties to contract marriage in his presence, unless
the intention of marriage had been previously published.
Thus stood the law until the repeal of the first charter.
Under the provincial charter new and different regulations for
the solemnizing of marriages were made, which were in force
in 1Y84, and by which the case before us must be governed.
3. The English statutes affecting the colonies.
By the provincial statute of 4 Will. & Mar. c. 10, every
justice of the peace within his county, and every settled minis-
ter in any town are authorized to solemnize marriages between
persons who may lawfully intermarry, and who have the con-
sent of those under whose immediate government they are,
upon producing a certificate of the publication of the intention
of marriage. This statute containing no negative words, it was
afterwards enacted by the statute of 7 Will. Ill, c. 6, that no
person, other than a justice of the peace, and that within his
MILFOKD T. WORCESTER.
175
county only, or ordained minister, and that only in the town
where he was settled, shoidd join any persons in marriage ; nor
any, unless one or both of the parties were inhabitants or resi-
dents in such county or town respectively ; nor without certifi-
cate of publishment ; nor without evident signification that the.
parents or guardians were knowing of and consenting to such
marriage, on the penalty of forfeiting fifty pounds to the coun-
ty. The authority of an ordained minister to solemnize marriages
was afterwards by the statute of 3 G. Ill, c. 4, and 13 G. Ill, c.
6, enlarged in some special cases, which it is not necessary now
to mention. These statutes remained in force until January,
1787, when the statute of 1786, c. 3, came into operation.
No form of words is established for the solemnization of a
marriage. The usage is for the justice or minister to require
of the parties respectively an assent to a mutual agreement to
take each other for husband and wife; after which he pro-
nounces them to be husband and wife. But the statute would
be substantially conformed to, if the parties were to make the
mutual engagement in the presence of the justice or minister
with his assent, he imdertaking to act on that occasion in his
ofiBcial character. But without such assent and undertaking of
the justice or minister, notvtdthstanding their personal presence,
the marriage, I am well satisfied, will not be solemnized pur-
suant to, nor be a lawful marriage within the statute.
4. When maeeiage valid under the statitte.
When a justice or minister shall solemnize a marriage be-
tween parties, who may lawfully marry, although without pub-
lication of the bans of marriage, and without the consent of
the parents or guardians, such marriage would unquestionably
be lawful, although the oflBlcer would incur the penalty of fifty
pounds for a breach of his duty. If therefore a mutual engage-
ment of marriage made by the parties in the presence of a jus-
tice or minister, he not assenting to act in his official character
on that occasion, would be a solemnization of the marriage by
him, it would be equally so whether the intention of marriage
had or had not been published ; and if it had not, he might in-
cur the penalty of fifty pounds, where he had been guilty of
176 THEOPHILUS PARSONS.
no breach of official duty. This consequence is not to be ad-
mitted ; and the necessary inference is, that such marriage en-
gagement, so made by the parties in the presence of a justice
or minister, not consenting to act officially on the occasion, is
not a lawful marriage pursuant to the statute.
5. That the maeeiage was not m teems peohibited
HVEMATBEIAL.
Eut it has been argued, that this marriage, although not
solemnized pursuant to the statute, is yet a lawful marriage,
had between parties competent to contract marriage and not de-
clared void by any statute.
This ground for supporting the marriage deserves considera-
tion : as, if it be tenable, the consequences are very extensive.
"Where the laws of any state have prescribed no regulations for
the celebration of marriages, a mutual engagement to inter-
marry, by parties competent to make such contract, woidd in a
moral view be a good marriage, and would impugn no law of
the state. But when civil government has established regula-
tions for the due celebration of marriages, it is the duty, as well
as the interest of all the citizens to conform to such regulations.
A deviation from them may tend to introduce fraud and sur-
prise in the contract ; or by a celebration without witnesses, the
vilest seduction may be practiced under the pretext of matri-
mony. "When therefore the statute enacts that no person but a
justice or a minister shall solemnize a marriage, and that only
in certain cases, the parties are themselves< prohibited from
solemnizing their own marriages by any form of engagement,
or in the presence of any witnesses whatever.
If this be not a reasonable inference, fruitless are all the
precautions of the legislature. In vain do the laws require a
previous publication of the bans, or the assent of the parents
or guardians of young minors, or prohibit a justice or minister
from solemnizing a marriage without these prerequisites. A
young and inconsiderate couple may at a tavern or elsewhere,
with or without the presence of witnesses, rush into matrimony,
distress their friends, and destroy their own future prospects in
life.
MILFORD V. WORCESTER. 177
6. iMPOETAiTOE OF THE STATUTE.
As the notoriety of marriages is of importance to the people,
in furnishing an easy method of proving descents, the statute
of 1786, c. 3, requires a certificate of a justice or minister of
every marriage by him solemnized, to be entered on a public
record, which cannot be impeached unless by evidence of fraud.
Marriages otherwise solemnized cannot therefore be recorded,
and cannot be presumed to be marriages recognized by law.
It has been truly observed by the counsel for the plaintiffs,
that a marriage engagement of this kind is not declared void
by any statute. But we cannot thence conclude that it is recog-
nized as valid, unless we render in a great measure nugatory all
the statute regulations on this subject.
7. QUAKEE MAEEIAQES.
It may be objected to these principles, that if they are cor-
rect, a marriage among quakers, agreeably to the rules of their
society, is void. I know not that the conclusion would not be
just. I know that such was the opinion of lawyers before the
revolution ; and so general was this impression, that to guard
those people from consequences so mischievous, in the eighth
section of the revising statute of 1786, c. 3, all such marriages
before had were confirmed, and such marriages authorized in
future.
8. "When maeeiages illegal.
Marriages may be considered as void or vahd, with respect
either to civil rights incident to marriages, or to penal conse-
quences to the parties, where marriages are questioned. What-
ever foundation for the distinction there may be, when the
parties might have lawfully intermarried ; there can be none,
where the parties are prohibited from marrying. This last case
comprehends by our laws incestuous marriages (Stat. 7 Will.
Ill, 6 ; 1785, c. 69), marriages within the age of consent (Stat.
1784, c. 40, § 5), when either of the parties has a husband or
wife living (Stat. 1785, c. 69), and marriages between a white
person, and an indian, negro, or mulatto (Stat. 4 Ann. c. 6 ;
1786, c. 3).
12
I'S THEOPHILUS PARSONS.
Marriages between parties, who might lawfully have inter-
married, deserve a further consideration. No person can law-
fully solemnize such marriages but a justice of the peace or an
ordained minister. And a record of a marriage so solemnized
by either of those officers, founded on a certificate duly made,
is legal evidence of the marriage, and no inquiry is further
made as to the publication of bans, the assent of parents or
guardians, or the inhabitancy of the parties. When therefore
the marriage appears to have been celebrated by a competent
officer, as a justice or a minister, the marriage is deemed law-
ful, although the officer, for his irregularity, may have incurred
the penalty of fifty pounds. But a marriage, merely the effect
of a mutual engagement between the parties, or solemnized by
any one not a justice of the peace or an ordained minister, is
not a legal marriage entitled to the incidents of a marriage duly
solemnized. The woman, when a widow, cannot claim dower,
nor the issue seizin by descent.
9. Effect of cohabitation.
Whether cohabitation, after such a pretended marriage, will
subject either of the parties to punishmeni, as guilty of forni-
cation, may depend on circumstances. If either of the parties
were circumvented, and verily supposed the marriage legal,
perhaps such party would be protected from punishment ; on
the general principle, that to constitute guilt, the mind must
appear to be guilty. But every young woman of honor ought
to insist on a marriage solemnized by a legal officer, and to
shun the man who prates about marriage condemned by human
laws, as good in the sight of heaven. This cant, she may be
assured, is a pretext for seduction ; and if not contemned, will
lead to dishonor and misery.
Upon the whole, it is the opinion of the court, that the mu-
tual engagement of the parties in this case, to take each other
for husband and wife, in the room where a justice was present,
he not assenting, but refusing to solemnize the marriage, is not
a lawful marriage: so that the woman, or her issue by Stephen
Temple, could acquire a derivative settlement from him in
Worcester, and the verdict must stand.
GREENWOOD v. CURTIS. 179
III.
ILLEGALITY AS TO JSTOTE, WHEN NO BAK TO
A KECOVEEY ON THE CONTEACT.
Gkeenwood v. Cuetis, Maech Teem, 1810. ^
[6 Mass., 358.]
At first blush it would seem that Green vrood «. Curtis presented the ques-
tion as to how far a contract, valid where made, can be enforced in a coun-
try in which it is prohibited by positive law, or is regarded as contrary to
public morals. The general rule is that such contracts can be enforced.
The exception to this rule, however, embraces all contracts involving moral
turpitude with respect either to the consideration or the subject matter, and
this exception illustrates the familiar maxim ex turpi causa mm oritur aMo.
But the real question here decided is whether, in an action upon an ac-
count stated and upon a promissory note, both part of the same transaction,
where the account acknowledges a balance payable in cash, and the note
provides for the payment of this balance in slaves, thus rendering the note
void in the lex fori, can the note be disregarded and a recovery had upon the
account alone; or are both part of one transaction, in which the illegality at-
taching to the note taints the entire negotiation so as to defeat a recovery.
The following are the facts :
William Greenwood, a citizen of Charleston, South Carolina, forwarded
by his vessel " Hope,'' of which Isaac B. Hichborn was master, a cargo of
merchandise to the coast of Africa, to be sold or traded for slaves, which
were to be thence transported to Charleston. The vessel arrived at her desti-
nation in February, 1802, and her entire cargo was bartered or sold on credit
to Benjamin Curtis the defendant, residing at Rio Pongos, on the coast of
Africa, for one hundred and fifteen slaves, which the defendant promised to
deliver. Hichborn died shortly after the cargo was disposed of, and Mr. De-
laney was chosen master of plaintiff's vessel. The defendant delivered to
Delaney fifty-nine slaves, and made also some cash advances, on account of
the cargo purchased by him, and afterwards, on the 27th of July, 1802, an
accounting was had, and an account was stated, between Delaney and the
defendant, purporting to be between Hichborn and the defendant, in which
the defendant was charged with the cargo, and credited with fifty- nine slaves
delivered and the advances made by him, and a cash balance was struck in
favor of the plaintiff, which was found to be, in the currency of the country,
6,056 bars, which account was duly signed by the defendant. The defendant
delivered, at the same time with this account, and as part of the transaction,
his promissory note, which was simply a promise to pay this balance in
slaves, as nearly as a numerical apportionment of slaves to the balance would
180 THE0PHILU8 PARSONS.
discharge it, but a residuum remaining, it- was to be paid in money. Tlie
note was as follows :
" Kio PoNGOS, 27th July, 1802.
"I promise to pay, or cause to be paid, to the owners or concerned of the
brigantine Hope, nine four-foot slaves, thirty-seven prime slaves, and seventy-
six bars, on demand, for value received of Capt. Hichbom.
" Benjamin Cdetis."
•
The note and account were duly delivered to the plaintiff, who, in May
of the following year, authorized, as his agent, William Hippias, of the brig
Betsy, then about to proceed to Africa, instructing him to demand and re-
ceive of the defendant, the contents of the note, and bring the proceeds to
the plaintiff in Charleston. Hippias, upon his arrival at Eio Pongos, accord-
ingly made .the demand, which was refused. He thereupon wrote the plaint-
iff, informing him of this demand and refusal. Hippias afterwards returned
to Charleston, and in proceeding thence to sea, before the commencement of
this action, his vessel foundered, and he, together with all his papers, were
lost.
Plaintiff sued the defendant in Boston, upon the note and the account
stated. The declaration contained three counts, the first two being upon the
note, and the promise to deliver the slaves and bars according to its tenor;
the third count was upon an insimul oomputassent, or an account stated, al-
leging that an accounting was had, upon which there was found to be due
from the defendant to the plaintiff, 6,056 bars, equal in value to $4,481 41 of
pur currency.
Upon the trial, the letters of Hippias were admitted to prove the demand
made on the defendant, on the note, and his refusal to perform. Judgment
was rendered for plaintiff, subject to the opinion of the court in banc.
The two points relied upon by counsel for defendant were: (1) That the
letters of Hippias were not competent evidence of the demand and refusal as
to the note. (3) That the contract was based upon an immoral considera-
tion, and was illegal and void; that the subject matter of the contract was
immoral at the common law, and in violation of the declaration of right pre-
fixed to the constitution of the commonwealth, as part of the organic law,
forbidding the slave traffic, and was positively prohibited by statute (Laws
of 1787, chap. 48), which declared the slave trade to be "unrighteous com-
merce," and characterized those engaged in it as acting "regardless of the
rights of human kind."
With great ingenuity and wonderful clearness, the Chief Justice proceeds
in his opinion in favor of the plaintiff, and sustains the judgment, without
necessarily passing upon the first point, and while admitting the soundness
of the second proposition, holds that it does not in any wise affect a recov-
ery, because there was no merger, and that the account stated was sufficient,
irrespective of the note.
A very learned and elaborate dissenting opinion, however, was rendered
by the Hon. Theodore Sedgwick, in which he holds that both note and ac-
count are part of the same transaction, and that the account alone displays
the consideration or the relation of the parties as the ground of the promise;
that there was but one contract, and the note was evidence of the manner in
GEEElfWOOD v.- CURTIS. 181
•which it was to be performed, and the same heing immoral and illegal in
Massachiisetts, no recovery could be had. ,
The other justices, Sewall, Thatcher and Parker, concurred in the opinion
of the Chief Justice, which is as follows :
PAKSONS, C. J. — This action is assumpsit on a promis-
sory note for the delivery of slaves, and the payment of bars,
which are an African currency, and also on an insimul comvpu-
tassent. A verdict has been found for the plaintiff upon a trial
on the general issue, subject to the opinion of the court upon a
case stated by the parties.
Two objections have been made to the verdict by the coun-
sel for the defendant. That the letters of Hippias were im-
properly admitted in evidence ; and if they were not, that no
action can be maintained in this State on a breach of either of
the supposed promises.
The note was made at Eio Pongos, on the coast of Africa,
for the delivery of slaves there on demand. Hence the defend-
ant very properly argued, that the slaves ought to have been
demanded before he could be discharged in an action on the
note ; and there was no evidence of this demand, but what arose
out of Hippias' letters. If those were properly admitted, and
the plaintiff cannot recover upon the insimul oomputassent,
the verdict must be set aside. But if the plaintiff can main-
tain his action upon the insimul computassent, where no pre-
vious demand was necessary to entitle him to his action, the
admission of Hippias' letters becomes immaterial, and cannot
affect the verdict.
When the plaintiff's vessel, of which Hichbom was master
and supercargo, arrived in Africa, the master sold the cargo to
the defendant, to be paid for by the delivery of one hundred
and fifteen slaves. The defendant delivered but a part of the
slaves to Delaney, who, on the death of Hichbom, succeeded
lim as master, and the vessel returned without the residue. The
contract on the part of the defendant was then broken, and the
plaintiff, if the contract was lawful, had his remedy at law to
recover damages for such breach.
That the contract was not performed is admitted by de-
fendant. For he has stated an- account between himself and
the owner of the outward cargo, in which he credits the owner
182 THEOPHILUS PARSONS.
•with the value of the cargo, and after having charged him
vith the slaves delivered, and the advances made to the master,
acknowledges a balance in cash of 6,056 bars, equal to 4,481
dollars forty-one cents, due from him. If no further transac-
tions had been had, there can be no doubt but that the plaintiff,
on assenting to this settlement, might have recovered this bal-
ance on an insimul compy,lasseni, and without maMng a de-
mand of the money previous to the action.
But it appears, that on the same day before Delaney left
Rio Pongos, the defendant also made the note declared on, the
balance of the account being the consideration of the note, and
the note and accounts being parts of the same transaction. It
is manifest then, that the plaiutiffi cannot recover, both on the
note and on the account. If there be no illegality attached to
this transaction, the plaintiff may recover on either, as the note
not being negotiable nor accepted in satisfaction of the account,
nor of an higher nature, does not merge the account.
Being, therefore, well satisfied, that an action may be main-
tained on the insimul computassent, if the settlement was not
illegal, without any previous demand, it becomes unnecessary to
give any opinion on the admission of Hippias' letters. But
having considered this question, it is our opinion that the ad-
mission was regular. Hippias was sent to make the demand,
in a country where there is no regular civil government, and
not having, that we know of, any magistrates or notaries
authorized to take and certify affidavits, or regularly to authen-
ticate testimony in any manner; and as no cause was then
pending or expected, it cannot be required that he should carry
with him a dedimus protesiatum.
There seems, therefore, to be a commercial necessity to ad-
mit evidence of this nature under these circumstances, to enforce
contracts made abroad in barbarous or jmcivilized countries.
This evidence might be controlled ; and if the defendant had
shown, that when Hippias was at Rio Pongos, the slaves were
ready to be delivered, probably little credit would have been
paid to the letters. But whether this opinion be or be not
correct, if an action can be maintained on the insimul comjpii-
tassent, the admission was immaterial, and cannot affect the
verdict.
GREENWOOD v. CURTIS. 1S3
The second objection, that no action upon either of the
promises alleged can be maintained in this State, is principally
relied on by the defendant. The argument of his counsel has
been supported with much Ingenuity. The slave trade, he has
argued, is or has been prohibited by a statute of the common-
wealth, in the preamble of which it has been declared to be an
unrighteous commerce ; and he attempted to show that in itseK
it was immoral. This objection deserves much consideration.
By the common law, upon principles of national comity, a
contract made in a foreign place, and to be there executed, if
valid by the laws of that place, may be a legitimate ground of
action in the courts of this State ; although such contract may
not be valid by our laws, or even may be prohibited to our citi-
zens. Thus in States where a greater rate of interest is allowed
than by our statute, a contract securing a greater rate of inter-
est, but agreeably to the law of the place, may be sued in our
courts, where the plaintiff shall recover the stipulated interest.
This rule is subject to two exceptions. One is, when the
commonwealth or its citizens may be injured by giving legal
effect to the contract by a judgment in our courts. Thus a con-
tract for the sale and delivery of merchandise in a State where
such sale is not prohibited, may be sued in another State where
such merchandise cannot lawfully be imported. But if the
delivery was to be in a State where the importation was inter-
dicted, there the contract could not be sued in the interdicted
State; because the giving of legal eff'ect to such a contract
would be repugnant to its rights and interest. Another excep-
tion is, when the giving of legal effect to the contract would ex-
hibit to the citizens of the State an example pernicious and de-
testable. Thus, if a foreign state allows marriages incestuous by
the law of nature, as between parent and child, such marriage
could not be allowed to have any validity here. But marriages
not naturally unlawful but prohibited by the law of one State
and not of another, if .celebrated where they are not prohibited,
would be holden valid in a State where they are not allowed.
As in this State, a marriage between a man and his deceased
wife's sister is lawful, but it is not so in some States ; such a
marriage celebrated here would be held valid in any other State,
and the parties entitled to the benefits of the matrimonial con-
184 THEOPHILUS PARSONS.
tract. Another case may be stated as within the second excep-
tion, in an action on a contract made in a foreign state by a
prostitute, to recover the wages of her prostitution. This con-
tract, if lawful where it was made, could not be the legal ground
of an action here ; for the consideration is confessedly immoral,
and a judgment in support of it would be pernicious from its
example. And perhaps all cases may be considered as within
this exception, which are founded on moral turpitude, in respect
either of the consideration or the stipulation.
Before the present case can be compared with this rule,
including the exceptions to it, the merits of it must be ascer-
tained.
In South Carolina it was lawful to purchase slaves on the
coast of Africa, and to import them as merchandise into that
State. And it does not appear that this purchase and importa-
tion was unlawful at Kio Pongos. The original contract was
made at Rio Pongos, for the purpose of obtaining slaves to
transport to Charleston. The account was stated at Eio Pongos,
in which the defendant acknowledged a balance due in cash,
which was assented to by the plaintiff in Charleston. "Whether
either of the contracts is to be governed by the law of Eio
Pongos or of South Carolina, is immaterial ; for, in either case,
it does not appear that either of them was invalid lege loci.
Either of them, therefore, may be the ground of an action in
this State, unless it come withia one of the exceptions to the
rule, even if a contract of this nature made by the citizens of
this State should be void. To maintain the action if it be not
within the exceptions, is enjoined on us by the comity we owe
another State. And to entitle the defendant to retain in his
hands the debt which he justly owes, as between the parties, he
ought clearly to show some principle by which he may defend
himself in dishonestly retaining this property.
"We do not perceive any injury that could arise to the rights
or interest of this State or its citizens, if either of the contracts
had been faithfully executed agreeably to the terms of it. It
was made abroad by persons not citizens of the commonwealth,
and to be executed abroad, having no relation in its conse-
quences to our laws.
The defendant, therefore, to establish his defense, must
GREENWOOD v. CURTIS. 185
bring this case witliin the second exception ; and show that the
action, as considered by the laws of this commonwealth, is a
turpis caitsa, furnishing a pernicious precedent, and so not to
be countenanced. This upon public principles he is authorized
to do, notwithstanding he is a party to all the moral turpitude
of the contract.
The argument is, that the transportation of slaves from
Africa is an immoral and vicious practice, and consequently
that any contract to purchase slaves for that purpose is base and
dishonest, and cannot be the foundation of an action here
within the principle of comity adopted by the common law.
This objection may apply to the counts on the note, but not to
the count on the insimul cotnputassent.
Laying the counts on the note out of the case, we shall con-
sider the objection of moral turpitude, so far as it affects the
count on the insimul computassent : and we are satisfied that
the objection does not apply to the contract averred in this
count; there being nothing immoral in the consideration on
the plaintiff's part, or in the stipulation made by the defendant.
If a Charleston merchant should send a cargo of merchandise
to Africa, for the purpose of there selling it, and with the pro-
ceeds to purchase slaves ; and if the cargo be accordingly sold,
and the purchaser agree to pay for it in slaves ; and he after-
wards shall refuse or neglect to deliver the slaves, but makes a
new agreement with the owner to pay him a sum of money for
his cargo, an action can unquestionably, in our opinion, be
naaintained on this new contract ; and the illegal contract being
annuled or void, cannot affect it. So if the purchaser had de-
livered a part only of the slaves to the merchant, and after-
wards agrees with him to pay the balance in cash, we see no ob-
jection to an action to recover this balance in cash, if the pur-
chaser refuse to pay it.
In the present case, the defendant having delivered a part
only of the slaves, and having become a creditor of the plaint-
iff for supplies furnished to his use, states his account, in
which, after deducting the slaves delivered and the supplies
furnished, he acknowledges a balance in cash, and the plaintiff,
having assented to the account, demands the balance in this
action. We see no legal objection to his recovery. The con-
186 THE0PHILU8 PARSONS.
sideration of the implied promise arising from this settlement,
is the sale of the cargo, which involves in it no moral turpi-
tude ; neither is the performance of the promise by paying the
balance in cash immoral. And although on the same day the
defendant, in consideration of this balance due in cash, prom-
ises by bis note to discharge it principally in slaves, and the
small remainder in cash ; yet this promise is no bar to an action
by the plaintiff on the account, even if the promise by the note
is here considered as legal, and a fortiori if it is considered as
void for its immorality. It is true, if the defendant voluntarily
discharged the note, the balance of the account could not after-
wards be recovered, for the consideration of it was discharged
by the payment of the note ; nor could the payment of the •
note be recovered back, for potior est cond/itio possidentis.
In this case, the defendant having acknowledged a balance
of cash in his hands, the property of the plaintiff ; although
it came into his hands from the sale of the merchandise, for
which he was to pay in slaves, but did not, this balance, as
between the parties, is justly due the plaintiff ; and unless the ■
principles of public policy against the action upon the insimul
Gornputassent are manifest, we cannot decide that the defendant
shall not be held to pay what he justly owes.
In this view of the case, we are satisfied that the action is
maintained on the insimul computassent, and that the plaintiff
may take his verdict on that count, and have judgment entered
upon it.
Judgment according to verdict.
COFFIN T. COFFIN. 187
IV.
PLEADING.— THE WOED "WHEREAS" AFTER
JUDGMENT MAY BE DISREGARDED.
Coffin v. Coffin^ Maech Term, 1807.
[2 Mass., 360.]
This decision of Chief Justice Parsons is given, not because it is
thought to be in any sense a great opinion, but for the reason that it illus-
trates, in a striking and forcible manner, the growth and development of
legal procedure. Pleading as a science was well in theory, but the rules of
pleading as actually applied, before the old common law writs were abol-
ished, and when the jurisdiction of courts of law and courts of equity were
separate and exclusive, presented a system so abstruse and refined in its de-
tails, and so ingenious and subtle as to its distinctions, that it became de-
structive of the rights it was intended to guard and protect, and presented
a series of artificial rules beyond the comprehension of ordinary mortals.
The truth of this statement will appear when we call to mind the famous
case tried many years ago in England. The action was commenced in the
law court, and after a struggle of more than twenty years, the learned judges
made the discovery that upon the pleadings and theory of the case, a court
of law could furnish no relief, and the plaintifE was told that he must seek
his remedy in a court of equity. The aged suitor then knocked at the gates
of the chancellor's court, and was finally dismissed from that august tribu-
nal, for the reason that more than twenty years had elapsed since he might
have applied for relief in equity, and having wasted this time in a court hav-
ing no jurisdiction, the action was barred by the statute of limitations, and
it was too late to render relief.
The important and interesting question presented in the case now under
discussion was,' whether, during a period of five hundred years, the word
"wherefore " had ever been a success in a pleading, either in English or in
Latin. What this question had to do with the facts proven at the trial upon
which the jury based their verdict, or how it affected the merits of the con-
troversy in any way, it will be impossible to discover. Nevertheless the court
was called upon to decide whether the attorney had not made a slip of the pen
in drawing the declaration, and thereby violated some ancient rule of pleading
claimed to be of far more transcendant importance than any reason to sus-
tain it, which might have existed at some period in the dark ages. It was
argued, that the declaration was by way of recital only, and not a positive
averment of the trespass. The action was brought to recover damages for
an assault and battery, and after hearing all the evidence the jury rendered
a verdict in favor of the plaintiff. The defendant's counsel now asked the
court, in all seriousness, to set aside this verdict, because the plaintiff.
188 THEOPHILUS PARSONS.
though he recited Bomething about an injury, never really did allege it.
His declaration was quod cum — for that "whereas" — the defendant had
assaulted and beat the plaintiff; when he ought to have directly and posi-
tively alleged that the defendant did actually assault and beat; and notwith-
standing plaintifE proved the beating and the damage, and convinced the
jury that the defendant did it, yet that incident could not cure the horrible
slip he had made in his pleading.
The Chief Justice was himself a very skillful pleader, and, it is said, was
one of the few men, in his day, who had thoroughly mastered that abstruse
science as then understood. It is said that an attorney desiring to make a
pleading that would stand the test to which he knew it would be subjected
by the Chief Justice, put thirteen counts into it, and the defendant put in
even a greater number of pleas, but when the case was called, the Chief Jus-
tice held that all the counts and all the pleas were alike bad, and good-
naturedly advised the parties to discontinue the action and divide the costs.
But in the case here presented, the Chief Justice would not allow the word
"whereas " to defeat a verdict after a long and tedious trial on the merits,
and his opinion settled the law on that point, though he intimated that upon
demurrer the result might have been different. The opinion may be re-
garded as a landmark in the liberal construction of pleadings as modified by
our statutes.
PARSONS, 0. J. — This is an action for trespass for an as-
sault and battery ; and a verdict has been found for the plaint-
iff upon the general issue. The defendant now moves in arrest
of judgment for a defect in the declaration. The defendant
was attached to answer the plaintiff in a plea of trespass, for
that whereas the defendant, at the time and place mentioned,
with force and arms committed the trespass complained of.
It is said that this manner of laying the trespass is by way of
recital and not sufficiently certain and positive to admit of a
legal Judgment after verdict. A count in trespass of this form,
when the proceedings were in latin, was called a declaration
with a quod cum, whereas being substituted for cum. In ex-
amining the cases on this point, it is very certain that formerly'
declarations in trespass with a quod cum were holden bad, and
that no judgment could be rendered thereon, even after ver-
dict ; and the defect was not considered as cured by any of
the English statutes of amendment or jeofails. For many
years past the judges in England have appeared dissatisfied
with these decisions ; and after several attempts it is now
holden, that a declaration of this description filed in the Com-
mon Pleas is not bad, even on special demurrer. Much legal
COFFIN V. COFFIN. 189
astutia is discovered in the reasoning wUch has led to this con-
clusion. To explain it, it must be remembered that a count in
the Common Pleas recites the writ ; and this recital is consid-
ered as a part of the count. Thus in trespass for an assault
and battery with a quod cum, the defendant is attached to an-
swer the plaintiff in a plea, quare or wherefore with force and
arms he assaulted and beat the plaintiff ; whereupon the plaint-
iff complains quod cum, for that whereas the defendant as-
saulted and beat the plaintiff, by which he hath damage to the
sum of, &c.
The first attempt was made in the case of Norman v.
George, Fitz. 255. The declaration was in the Common Pleas
and was trespass with a quod cum. The error assigned was,
that the trespass was alleged by way of recital, when the charge
ought to have been certain and positive. The defendant in
error insisted that, as the count inserted in the writ, a reference
to the writ aided the insufficiency of the charge. Of this Lord
Eaymond doubted ; for if the recited original vary from the
count, the court could not take notice of it but by resorting to
the original. He also observed that a reference to the writ as
recited would not amount to a positive allegation, for there it
is qua/re vi et arm,i8. No judgment however was given.
Four years after this, in the case of Warren v. Lapdon (1
Barnes' Notes, 176), ia the Common Pleas, the declaration in
trespass was with a quod cum, and a motion was made after
verdict to arrest the judgment for this cause. But the court re-
fused a rule to show cause, being of opinion, that although cum,
if it stood alone might be bad, yet the recital of the original
had helped it.
Notwithstanding the Common Pleas would not arrest the
judgment for this defect, an attempt was made in the King's
Bench, in the case of Douglas v. Hall (1 Wils. 99), to reverse a
judgment of the Common Pleas for this error. But Lee, C. J.,
thought the declaration with a quod cum well enough, as it re-
ferred to the writ, in which quare vi et armis was a sufficient
averment. However, Dennison, J., assumed a different ground.
He would reject cum as surplusage after the merits had been
tried, but thought it bad upon demurrer. No judgment was
given.
190 THEOPHILUS PARSONS.
Afterwards, in the case of White v. Shaw (2 "Wils. 203), in
the Common Pleas, whereas had complete success. A declara-
tion in trespass with a quod cum was demurred to specially for
that cause. The court observed, that if the declaration had
been in a bill in the King's Bench, it might have been bad ;
but in the Common Pleas the count is helped by setting out the
writ in the declaration, and the plaintiff had judgment. Thus
it is settled in the Common Pleas that cum, when referred to
the potent word qy,a/re, amounts to a positive allegation. Yet
if we look into the case of Hore v. Chapman (2 Salk. 636), in
the King's Bench, we shall find a declaration in trespass, where
qua/re is substituted for quod cum. But judgment was arrested
after verdict, because quare is not positive, but interrogatory,
and much worse than quod cum. It is however settled in the
Common Pleas, that by connecting the whereas, a word of re-
cital, with the interrogative why or wherefore, there results a
positive allegation : the reasons for this decision it is not ex-
pedient critically to examine. "We perfectly understand Jus-
tice Dennison, when he observes that after the merits had been
tried, " whereas " ought to be considered as surplusage, and no
notice be taken of the officious intruder.
I have found no decision of the court of King's Bench,
since the proceedings were in English, on the effect of whereas
in a count in trespass, when introduced in proceedings by a
bDl, in which is not contained the interrogative why.
Thus far we have considered the authorities in the books.
The general rule, which governs in deciding on the forms of
declarations in all cases is, that they should with sufficient cer-
tainty describe the gravamen, that the defendant may know
what to answer. And certainty to a common intent is sufficient.
But there is a greater strictness in the rule, in actions where
the consequences of a conviction are penal to the defendant,
than in others. In assumpsit it has been determined as long
ago as the case of Ernly v. Lord Falkland et al. (Hard. 1, 103),
that a declaration quod cum super se assumpsit is good after
verdict. But the reason why in trespass it is not, is given in
the case in Fitzgibbon, 255, already cited. It is because on a
conviction in trespass there is a judgment quod capiatur,
against the defendant. In this state a judgment of capiatur
COFFIN V. COFFIN. 191
cannot be entered ; and there is therefore no reason for requir-
ing greater strictness in declarations in trespass than in assump-
sit. There is also a difference in the form of the writ pre-
scribed by our statute, and the common law form in the Com-
mon Pleas. In the English form the plaintiff, after alleging
his damages, adds, "and thereupon he brings suit," &c., or
proffers his witnesses. In our form there is a material substi-
tution of the affirmative words, " which shall then and there
appear." By (5ur writ the defendant is attached to appear at a
court named, there to answer to the plaintiff in a plea of tres-
pass, for that whereas the defendant with force and arms at the
time and place mentioned assaulted and beat the plaintiff, to
his damage, &c., "which at the said court shall appear." In
this view of the declaration can it be doubted whether it is not
certain to a common intent; or whether the change be not
positively, although not in technical form, affirmed ?
To relieve parties from the consequences of objections to
mere informality in legal proceedings, the statute of Oct. 30,
1784, beside vesting the court with a general power to order
amendments on motion, enacts that " no summons, writ, decla-
ration, process, judgment, or other proceedings in court or
course of justice, shall be abated, arrested, quashed, or reversed,
for any kind of circumstantial errors or mistakes, where the
person and case may be rightly understood by the court, nor
through defect or want of form only." In the action before
us the person and case cannot be misunderstood by the court
from the unnecessary use of the word " whereas" Its inser-
tion is a mere technical mistake in form, and not a substantial
error : and we think with Justice Dennison, that it is mere sur-
plusage, and after verdict shall be rejected. It is not necessary
to decide what judgment would have been given had the de-
fendant demurred specially to this declaration. But as it is a
matter of practice, and the negligence or unskillfulness of at-
torneys may again bring up the question, we are fully satisfied
that as the mistake is merely formal and not substantial, a gen-
eral demurrer would not avail the defendant. As we are not
satisfied with the reason of the judgment in the case of White
V. Shaw, if the defendant should demur, and assign this mis-
192 THEOPHILUS PARSONS.
take specially for cause of demurrer, we think the exception
must prevail.
We are sensible that this opinion is against the judgment
of the court in the case of Holbrook v. Pratt. By the present
system of administering justice by this court, the judges on
the circuit have not time to deliberate, or to examine books on
any subject. Under these circumstances it would be surprising
if a mistake were not sometimes made by the judges. This
apology which we make for others, we hope the candor of the
public will allow to the present judges.
Let judgment be entered according to verdict.
V.
EMPIEIOISM, THOUGH EESULTTOG FATALLY,
NO CEIME AT COMMON LAW.
Commonwealth v. Thompson, Novembee Teem, 1810.
[6 Mass., 134.]
A guilty mind is the essence of every crime. Withont criminal intent
there can he no crime. To constitute murder there must be malice afore-
thought, either express or implied, and this deliberate malice embraces the
operation of a guilty mind. .This rule of the common law is illustrated by
the charge of the chief justice upon the facts in the Commonwealth ».
Thompson, and from it may be learned also the exceptions to the rule as
above stated, and the technical distinctions which exist at the common law
between murder and manslaughter. Because there may be murder even
where there is no intent to kill the deceased ; and where the homicide is the
result of an unlawful act, whether the killing is murder qr manslaughter
will depend upon the fact as to whether the unlawful act, from which death
resulted, was a felony or a misdemeanor only. If, for example, one shoots
at A. and misses him, but kills B. ; or, if he lays poison for A., and B.,
against whom the prisoner had no malicious intent, takes it and dies, it is
nevertheless murder; because there was a previous felonious intent to kill
A., which, by operation of law, is transferred to B. So, if one gives a
woman with child medicine to procure an abortion, and the woman dies, it
is murder; but if two persons play at sw;ord and buckler, unless by the
COMMONWEALTH v. THOMPSON. 193
king's command, says Blackstone, and one of them accidentally kills the
other, it is manslaughter only. In the case of the abortionist and fencer,
the killing was the result of an unlawful act; but the act of the former was
felony, while that of the latter amounted to a misdemeanor only.
The case of Thompson illustrates the rule, that to constitute manslaugh-
ter the kUling must have been the consequence of some unlawful act. This
rule, as applied in cases of empiricism, is valuable in view of the various
statutes which have been adopted in many States, making it a misdemeanor
to practice medicine without a diploma from some chartered medical school
or respectable institution; or, at the least, forbidding such practice, or re-
quiring such license or diploma. The growth and prosperity of the coun-
try, since the days of the Chief Justice, has rendered wonderful facilities for
the dissemination of professional knowledge and the development and ad-
vancement of medical science, and as a result laws against empiricism be-
come more and more stringent, and quacks and mountebanks should, as a
consequence, proportionately diminish. The facts of the case are as fol-
lows:
In the month of December, 1808, a peculiar individual, named Samuel
Thompson, made hip appearance in the village of Beverly, and pro-
claimed that he was a physician possessed of wonderful skiU and power.
He boasted, in his grotesque way, that he could cure all fevers, whether
black, grey, green or yellow, and with characteristic impudence declared
broadly that the medical profession were impostors. That they were all
wrong in theory and practice, and that he alone was right. The drugs he
used were given odd names. One he called "coffee;"' another, "well-my-
gristle;" and a third, "ram-cats." He had several patients at Beverly and
Salem. Unfortunately Ezra Lovett, Jr., who had for several days been con-
fined to his house by a cold, sent for the prisoner. The manner in which
he proceeded to finish poor Lovett's earthly career is thus described by the
reporter:
" He came to the house of the deceased, and ordered a large fire to be
builfto heat the room. He then placed the feet of the deceased, with his
shoes off, on a stove of hot coals, and wrapped him in a thick blanket, cov-
ering his head. In this situation he gave him a powder in water, which im-
mediately puked him. Three minutes after, he repeated the dose, which in
about two minutes operated violently. He again repeated the dose, which
in a short time operated with more violence. These doses were all given
within the space of half an hour, the patient in the meantime drinking co-
piously of a warm decoction called by the prisoner his coffee. The de-
ceased, after puking, in which he brought up phlegm but no food, was
ordered to a warm bed, where he lay in a profuse sweat all night, Tuesday
morning the deceased left his bed, and appeared to be comfortable, com-
plaining only of debility; and in the afternoon he was visited by the prisoner,
who administered two more of his emetic powders in succession, which
puked the deceased, who, during the operation, drank of the prisoner's coffee
and complained of much distress. On Wednesday morning the prisoner
came, and after causing the face and hands of the deceased to be washed
with rum, ordered him to walk in the air, which he did for about fifteen
minutes. In the afternoon the prisoner gave him two more of his emetic
powders, with draughts of his coffee. On Thursday the deceased appeared
to be comfortable, but complained of great debility. In the afternoon the
prisoner caused him to be again sweated, by placing him vyith another pa-
13
194 THEOPHILUS PARSONS.
tient over afi iron pan with vinegar heated by hot stonesput into the vinegar,
covering them at the same time with blankets. On Piiday and Saturday
the prisoner did not visit the deceased, who appeared to be comfortable, al-
though complaining of increased debility. On Sunday morning, the debili-
ty increasing, the prisoner was sent for, and came in the afternoon, when he
administered another of his emetic powders with his cofifee, which puked the
deceased, causing him much distress. On Monday he appeared comfort-
able, but with increasing weakness, until the evening, when the prisoner
visited him, and administered another of his emetic powders, and in about
twenty minutes repeated the dose. This last dose did not operate. The
prisoner then administered pearlash mixed with water, and afterwards re-
peated his emetic potions. The deceased appeared to be in great distress,
-and said he was dying. The prisoner then asked him how far the medicine
had got down. The deceased, laying his hand on his breast, answered here;
■on which the prisoner observed that the medicine would soon get down and
unscrew his navel — meaning, as was supposed by the hearers, that it would
'operate as a cathartic. Between nine and ten o'clock in the evening the de-
ceased lost his reason, and was seized with convulsion fits; two men being
required to hold him in bed. After he was thus seized with convulsions,
the prisoner got down his throat one or two doses more of his emetic pow-
ders ; and remarked to the father of the deceased, that his son had got the hyps
like the devil, but that his medicines would fetch him down — meaning, as
the witness understood, would compose him. The next morning the regu-
lar physicians of the town were sent for, but the patient was so completely
exhausted that no relief could be given. The convulsions and the loss of
reason continued, with some intervals, until Tuesday evening, when the de-
ceased expired.
From the evidence it turned out that the coffee was a decoction of marsh
Tosemary mixed with the bark of the bayberry bush. The powder, princi-
pally used by the prisoner and which was the emetic administered, was the
pulverized plant vulgarly known as Indian tobacco, otherwise described as
lobelia inflata of Linnseus.
Thompson was indicted for willful murder. The defense was that the
prisoner had pursued his practice in divers places, for several years, with
marked success, and that the death of the deceased was unexpected, and
could not be imputed as a crime. The Chief Justice ruled that the charge
of murder could not be sustained since no malice had been shown, either
express or implied, and from the facts malice could not be presumed, even
though the drug became in the prisoner's hands, through gross ignorance, a
deadly poison. He also charged that, if the jury believed the prisoner acted
with an honest intention, there was not even manslaughter, since empiricism
was not a felony at the common law. The law governing the case is clearly
and briefly stated by the Chief Justice, in his charge, as follows:
PAKSOlSrS, 0. J.— That the deceased lost his life by the
unskillful treatment of the prisoner, does not seem to admit of
any reasonable doubt : but of this point the jury are to judge.
Before the Monday evening preceding the death of Lovett, he
had, by profuse sweats, and by often repeated doses of the
emetic powder, been reduced very low. In this state, on that
evening, other doses of this Indian tobacco were administered.
COMMONWEALTH v. THOMPSON. 195
"When tlie second potion did not operate, probably because the
tone of bis stomacb was destroyed, the repetition of them, that
they inight operate as a cathartic, was followed by convulsion
fits, loss of reason, and death.
But whether this treatment, by which the deceased lost his
life, is or is not a felonious homicide, is the great question be-
fore the jury.
To constitute the crime of murder, with which the prisoner
is charged, the killing must have been with malice, either ex-
press or implied. There was no evidence to induce a belief
that the prisoner, by this treatment, intended to kiU or to in-
jure the deceased ; and the ground of express malice must fail.
It has been said, that implied malice may be inferred from the
rash and presumptuous conduct of the prisoner in administering
such violent medicines. Before implied malice can be inferred,
the jury must be satisfied that the prisoner, by his treatment of
his patient, was willfully regardless of his social duty, being
determined on mischief. But there is no part of the evidence,
which proves that the prisoner intended by his practice any
iarm to the deceased. On the contrary, it appears that his in-
tention was to cure him The jury should consider whether
the charge of murder was, on these principles, satisfactorily
supported.
But though innocent of the crime of murder, the prisoner
may, on this indictment, be convicted of manslaughter, if the
evidence be sufficient. And the solicitor general has strongly
urged that the prisoner was guilty of manslaughter, because
lie rashly and presumptuously administered to the deceased a
deleterious medicine, which in his hands, by reason of his gross
ignorance, became a deadly poison.
The prisoner's ignorance is, in this case, very apparent. On
any other ground consistent with his innocence, it is not easy
to conceive, that on the Monday evening before the death,
when the second dose of his very powerful emetic had failed to
operate, through the extreme weakness of the deceased, he could
expect a repetition of these fatal poisons would prove a cathar-
tic, and relieve the patient : or that he could mistake convul-
sion fits, symptomatic of approaching death, for an hypochon-
driac affection.
196 THE0PHILU8 PARSONS.
But on considering this point the court are all of opinion,
notwithstanding this ignorance, that if the prisoner acted with
an honest intention and expectation of curing the deceased by
this treatment, although death, unexpected by him, was the
consequence, he was not guilty of manslaughter.
To constitute manslaughter the killing must have been a
consequence of some unlawful act. Now there is no law which
prohibits any man from prescribing for a sick person, with his
consent, if he honestly intends to cure him by his prescription.*
And it is not felony if, through his ignorance of the quality of
the medicine prescribed, or of the nature of the disease, or of
both, the patient contrary to his expectation should die. The
death of a man, killed by voluntarily following a medical pre-
scription, cannot be adjudged felony in the party prescribing,
unless he, however ignorant of medical science in general, had
so much knowledge, or probable information of the fatal ten-
dency of the prescription, that it may be reasonably presumed
by the jtiry to be the effect of obstinate willful rashness at the
least, and not of an honest intention and expectation to cure.
In the present case there is no evidence that the prisoner,
* Our ancestors in the year 1649, when physicians were few, and quacks
were numerous, endeavoring to guard against the folly and presumption of
ignorant practitioners, passed the following ordinance :
"Forasmuch as the law of God allows no man to impair the life or
limbs of any other, but in a judicial way,
"It is therefore ordered, that no person or persons whatsoever, employed
at any time about the bodies of men, women and children, for the preserva-
tion of lite or health, as surgeons, midwives, physicians or others, presume
to exercise or put forth any act contrary to the known approved rules of the
art, in each mystery and occupation; nor exercise any force, violence or cru-
elty upon or towards the body of any, whether young or old (no not in the
most difficult and desperate cases), without the advice and consent of such as
are skillful in the same art (if such may be had), or at least of some of the
wisest and gravest there present, and consent of the patient or patients, if
they be mentis compotes, much less contrary to such advice and consent; upon
such severe punishment as the nature of the fact may deserve. AVhich
law nevertheless is not intended to discourage any from all lawful use of
their skill, but rather to encourage, and direct them in the right use thereof;
and inhibit and restrain the presumptory arrogancy of such as through perfi-
dence of their own skill, or any other sinister respects, dare boldly to attempt
to exercise any violence upon or towards the bodies of young or old, one or
other, to the prejudice or hazard of the life or limb of man, woman or
child." — Old Colony Laws, p. 38.
COMMONWEALTH v. NEWELL. 197
either from Ms own experience, or from the information of
others, had any knowledge of the fatal effects of the Indian to-
bacco when injudiciously administered : but the only testimony
produced to this point, proved that the patient found a cure
from the medicine.
The law thus stated is conformable, not only to the general
principles which governed in charges of felonious homicide,
but also to the opinion of the learned and excellent Lord Chief
Justice Hale. He expressly states (1 H. H. P. C. 429), that if
a physician, whether licensed or not, gives a person a potion,
without any intent of doing him any bodily hurt, but with in-
tent to cure or prevent a disease, and contrary to the expecta-
tion of the physician it kiDs him, he is not guilty of murder or
naanslaughter.
If in this case it had appeared in evidence, as was stated by
the solicitor general, that the prisoner had previously, by ad-
ministering this Indian tobacco, experienced its injurious ef-
fects, in the death or bodily hurt of his patients, and that he
afterwards administered it in the same form to the deceased,
and he was killed by it, the court would have left it to the seri-
ous consideration of the jury, whether they would presume that
the prisoner administered it from an honest intention to cure,
or from obstinate rashness and foolhardy presumption, although
he might not have intended any bodily harm to his patient. If
the jury should have been of this latter opinion, it would have
been reasonable to convict the prisoner of manslaughter at least ;
for it would not have been lawful for him again to administer
a medicine of which he had such fatal experience.
It is to be exceedingly lamented, that people are so easily
persuaded to put confidence in these itinerant quacks, and to
trust their lives to strangers without knowledge or experience.
If this astonishing infatuation should continue, and men are
found to yield to the impudent pretensions of ignorant em-
piricism, there seems to be no adequate remedy by a criminal
prosecution, without the interference of the legislature ; if the
quack, however weak and presumptuous, should prescribe with
honest intentions and expectations of relieving his patients.
The prisoner was acquitted.
198 THEOPHILUS PARSONS.
VI.
MAYHEM,— WHAT OOISTSTITUTES THE OFFEiq"SE
AT COMMON LAW.
Commonwealth v. ]!^ewell et al., Novbmbee Teem, 1810.
[1 Mass., 246.]
In order to make out the crime of burglary at common law, it became
necessary to show, not only the breaking and entering of a dweUing-house
during the night-time, but that the prisoner broke and entered with intent
to commit a felony. In this case, Charles Newell and five others were
indicted for biu-glary. The indictment charged that the prisoners un-
lawfully and feloniously broke and entered the dwelling-house of Joseph
Dixon, in the night-time, with the intention him to maim and disfigure, and
did cut off the right ear of said Dixon.
The offense charged was the cutting off of an ear. This, it was claimed,
was no felony, because it was not mayhem, as the part of the body hurt did
not render the party less able in fighting either to defend himself or annoy
his adversary, and did not weaken but only disfigured him; any injury not
fatal, which did not fall within the definition of mayhem, was no felony.
Unless, therefore, the indictment charged that the breaking was with intent
to commit a felony, there was no burglary, and the offense charged not
being a felony, the indictment was bad.
On this ground the prisoner demurred to the indictment. The Chief
Justice sustained the demurrer. In his opinion, which is interesting and iu-
structive, he traces the origin and history of the peculiar crime of mayhem.
PAKSONS, C. J. — The breaking and entering a dwelling-
house in the night is not burglary, unless it be done with an in-
tent to commit a felony. The question for our decision is,
whether the cutting off the ear of D., of set purpose and malice
aforethought, with the intention to maim and disfigure him, is
by our laws a felony ; for if it be not a felony, an intention to
do it cannot be an intention to commit a felony.
By the ancient common law, mayhem was an injury of a
particular nature, constituting a specific offense, the commission
of which could be regularly averred by no circumlocution, with-
out the aid of the barbarous verb mahemiare. It consisted in
COMMONWEALTH v. NEWELL. 19&
violently and unlawfully depriving another of the use of a
member proper for his defense in fighting ; and wa8 punished
by a forfeiture of member for member, in consequence of which
forfeiture it was deemed a felony. If the sufferer sought this
satisfaction, or rather revenge, his remedy was by an appeal of
mayhem ; and the sovereign punished this injury done to his
subject by an indictment for a mayhem ; and in both the ap-
peal and the indictment, the offense must be alleged to have
been committed feloniously.
But this was only in the rude state of society ; and as civil-
ization advanced the punishment was disused, and the offender
made satisfaction by paying pecuniary damages, and was pun-
ished by fine and imprisonment, as in cases of trespass. This
was the state of the common law, long before and at the time
when our ancestors emigrated to this country, bringing with
them but a very small part of the common law defining crimes
and their punishment. Mayhem, therefore, was never deemed
by them a felony, but only an aggravated trespass at common
law ; and as such the offender was answerable to the party in-
jured in a civil action of trespass, and to the government upon
an indictment for a misdemeanor; and no statute provision,
during the existence of the colonial and provisional charters,
recognizes mayhem as a distinct offense from trespass, or as con-
stituting a specific felony. We are therefore obliged to consid-
er mayhem as no felony by the common law adopted in this
State.
Since the revolution, the only legislative provisions relating
to this offense, consider and punish it as a misdemeanor. If,
therefore, the Statute of 1804, ch. 123, has declared the mali-
ciously cutting off an ear with intent to maim and disfigure, a
mayhem, we cannot infer that it is felony. The statute, how-
ever, has not made that declaration. It only enacts that if any
person, with set purpose and aforethought malice, and with an
intention to maim and disfigure, shall unlawfully cut off an ear
of another, he and every person privy being present and aiding,
or absent having counseled or procured the commission, shall
be punished by solitary imprisonment and by confinement to
hard labor. Here the word maim is used in the popular sense
of mutilating, and not as synonymous with the technical word
200 THEOPHILUS PARSONS.
mayhem. The cutting off the ear is not called a maim, but is
created an offense, when done with an intention to maim and
disfigure, and punished as a misdemeanor ; for a trespass may
be committed with set purpose, and with malice aforethought.
The offense described not being a felony, it is argued that it
may nevertheless be supported as an indictment for a misde-
meanor. There are one or two ancient cases in favor of this
position, as Holmes' Case, Cro. Car. 376 ; Martin's Lessor's
Case, in the time of Henry IV, which is reported in Cro. Jac.
497. But in a later case, of Hex v. Wesbeer, the old cases were
considered and overruled.
JAMES KENT.
A JUDGE CANNOT BE SUED FOR ERROR ARISING IN
A MATTER WITHIN HIS JURISDICTION.
Yates v. Lansing, N. Y. Supbeme CotTBT, Fkbeuabt, 1810.
[6 Johos. 282.]
Analysis of Opinion of Chief Justice Kent.
■u No person shall be twice imprisoned un-
less by legal order.
3. Previous discharge of plaintiff not au-
thorized.
3. Court having jurisdiction may re-im-
prison notwithstanding discharge.
4. It is sufficient if court has jurisdiction of
cause of commitment.
5. Responsibility of judges at common law
for judicial acts.
6. Early authorities securing and recogniz-
ing the independence of the judiciary.
7. Jurors and judges alike protected in their
official acts.
8. Authority— Holt, Mansfield and De Grey.
9. Views adopted in American courts.
10. Judges liable only for acts done in a
ministerial capacity.
XX. An intentional violation of the statute
can only be imputed to a judge in case
of impeachment.
James Kent has made for himself a name which will remain forever
famous in the literature of the law. Notwithstanding the great number of
elementary legal writers, both in England and America, who have achieved
distinction, only two names appear at the highest point of excellence attained
in this particular sphere of useful labor ; and the distinguished honors which
attach are awarded by common consent to Sir William Blackstone and
James Kent.
Eminence in intellectual greatness is always difficult of attainment, since
genius alone will not suffice to secure it; and few are possessed of industry
and diligence, the necessary adjuncts to enable individual ambition to reach
the summit. It may, however, be observed, that famous names are found,
not in groups, but in pairs. In oratory, Cicero, the Roman, occupies the
same lofty plane alone with the master of Grecian eloquence. Among the
philosophers of antiquity, Socrates and Plato are accorded dual honors. In
poetry Virgil shares renown with Homer; while among modern bards, only
Shakespeare stands without a peer, and without a rival. Milton and Dante
sing in lofty strains, and paint the pictures which belong to other worlds,
beyond our mortal state. The faded splendor of martial glory is divided
between Alexander and Caesar, the two who more nearly approached the ac-
[301]
202 JAMES KENT.
compllshment of universal empire. So in the literature of the law there are
none in modern times who share the same distinction with the English and
American commentators — BlackstoniB and Kent — though in treating particu-
lar branches of jurisprudence, many have reached, perhaps, a higher plane.
James Kent was born at Fredericks, Putnam county, in the State of New
York, in July, 176& In 1777 he entered Yale College, but was compelled to
abandon his studies in the midst of his collegiate course, in consequence of
the occupation of New Haven by British troops. He graduated, how-
ever, with honors, in 1781, and studied law in the picturesque village of
Poughkeepsie, on the banks of the Hudson. He sat in the legislature of his
native State, but, fortunately for posterity, he was beaten as a candidate for
Congress in the county of Dutchess, in 1793; for had he been successful, his
elevation to the national councils might have changed and diverted his ener-
gies and ambition into other channels than those which he subsequently
pursued with such distinguished success. He removed after his defeat to
the city of New York, and was appointed professor in Columbia College,
which position he held until 1796, when he was appointed master in chancery,
and in the following year recorder of the city of New York. In 1798, his
friend Governor Jay elevated him to the position of junior judge of the
Supreme Court. In 1804 he was made chief justice, which position he occu-
pied until 1814, when he was appointed chancellor, and continued to dis-
charge the duties of this high trust until 1833, when he became legally in-
capacitated, having attained the age of sixty years. He was, however, only
then in his prime, and devoted himself with great industry to the preparation
of his commentaries, the first volume of which appeared in 1826, and the
fourth and last in 1830. Soon after his retirement from the bench, in 1834,
he was appointed a second time law professor of Columbia College, and was
thus afforded an opportunity to give to the world the fruits of his learning
and research in his famous text book. He died on the 4th of December,
1847, at the age of eighty-five.
The important controversy which gave rise to the following opinion, is
a clear exposition of the principle that a judge of a court of general juris-
diction cannot be called upon to answer in a civil action for an error of
judgment in any matter within his jurisdiction. The facts of the case are
as follows:
John Van Ness Yates sued John Lansing, Jr., the chancellor of the State
of New York, to recover a penalty of $1,350, under the fifth section of the
habeas corpus act, for an alleged violation of its provisions. On the 18th of
August, 1808, Yates was arrested in the city of Albany, on a writ issued out
of the Court of Chancery, upon the charge of having appeared as solicitor,
and prosecuted a cause in chancery, using the name of Peter W. Yates,
a prominent solicitor, without the knowledge or consent of the latter, in
contempt of the court, and contrary to the statute. He at once sued out a
writ of habeas corpus in the Supreme Court, and pursuant thereto appeared
before Hon. Ambrose Spencer, who, after argument, declared the arrest un-
lawful, and promptly discharged the prisoner (Case of Yates, 4 Johns. 318).
Afterwards, on the 5th of September following, Lansing, sitting as chan-
cellor, issued a new writ for the same offense, under which Yates was, on the
13th of September, re-arrested by the sheriff and committed to prison, where
YATES V. LANSING. 203
he remained for the space of forty-eight hours, when he was liberated. Yates,
then sued the chancellor to recover $1,250 penalty under the fifth section of
the Jiabeas ccn-pv^ act, which provides as follows :
"No person who shall be set at large upon any habeas coj^ws shall be
again imprisoned for the same offense, unless by the legal order or process
of the court wherein he is bound by recognizance to appear, or other court
having jurisdiction of the cause; and that if any person shall knowingly,
contrary to this act, re-commit or imprison, or cause to be re-committed or
imprisoned, for the same offense or pretended offense, any person so set at
large, or shall knowingly aid or assist therein, he shall forfeit to the party
aggrieved $t,250. any colorable pretense or variation in the warrant of com-
mitment notwithstanding."
The plaintiff claimed that the Supreme Court, having adjudicated that
the arrest would not lie for the offense charged in the first writ issued by
the chancellor, and the court having vacated it expressly on that ground,
the second writ for the same offense, was a clear violation of the fifth sec-
tion, knowingly and willfully committed. The defendant answered that the
act complained of was done in his oflBcial character as chancellor of the State
of New York in a matter within his jurisdiction.
The question here presented affects within its scope and bearing the very
existence of the judiciary, for, as Mr. Justice Field has well said, "It is a
general principle of the highest importance to the proper administration, of
justice that a judicial officer in exercising the authority vested in him, shall
be free to act upon his own convictions, without apprehension of personal
consequences to himself. Liability to answer to every one who might feel
himself aggrieved by the action of the judge would be inconsistent with the
possession of this freedom, and would destroy that independence without
which no judiciary can be either respectable or useful."*
Ever since the time of Lord Coke, it has been settled that judges of supe-
rior or general jurisdiction as distinguished from those of special or limited
jurisdiction, are exempt from liability in an action civil or criminal in re-
spect to matters of controversy within their jurisdiction, even though they
may have exceeded that jurisdiction. But suppose the act is not only will-
fully and knowingly done, but is also a malicious and corrupt act. The chan-
cellor in his opinion anticipates this branch of the argument, for he says cor-
rupt acts on the part of a judge can only be shown under process of impeach-
ment. From this reasoning the lule may be stated thus : for an act done by
a judge of a superior court, having jurisdiction as to the party and the sub-
ject matter, he is not responsible for error. For an act done corruptly under
the same circumstances, it seems he may be impeached, but is not liable to a
civil action, until the malfeasance has been established in a trial by impeach
ment. For an act done where the court has no jurisdiction, it is not a ju-
dicial act, and is not vnthin the protection which extends only to judicial
acts ; and where the jurisdiction is special and limited, if the judge exceeds
his powers, he is liable to the party aggrieved. The question, however,
whether a judge can be sued for a corrupt act before such corruption ia
established in impeachment proceedings is not settled, and in Bradley v.
Y. 12.
* Bradley v. Fisher, 13 Wall. 335 ; and see also Lange v. Benedict, 73 N.
204 JAMES KENT.
Fisher, 13 Wall. 385, Justices Davis and Clifford, expressed the opinion that
where it can be shown that a judge acted maliciously and corruptly, he is
liable in an action the same as a private person would be under like cir-
cumstances. The opinion of Judge Kent on this subject is as follows:
I
KENT, C. J. — The record before the court presents the
case of a civil suit, brought against the chancellor of this State,
for an act done by him in his judicial capacity, while sitting in
the Court of Chancery. The pleadings admit that the defendant
did, as chancellor and not otherwise, at a Court of Chancery,
ield on the 15th of September, 1808, order the plaintifE, after
ie had been discharged upon habeas corpus by one of the
judges of this court, to be recommitted for the contempt and
malpractice for which he had been originally imprisoned ; and
that the action is brought for such re-imprisonment, and to re-
cover the penalty mentioned in the 5th section of the habeas
corpus act. .
,The counsel who appeared for the plaintiff at the last term
{and who was the same counsel that argued the case upon the
habeas corpus at the last February term), declined to argue this
case, but would not consent that judgment should pass against
the plaintiff by default, and pressed the court for a decision
during the term, and accompanied his motion with an intima-
tion that he intended to carry the cause, by writ of error, into
the Court for the Correction of Errors. This fact must be my
apology for bestowing more time upon the case than the doc-
trine which it involves might seem to require. We have given
it a deliberate attention, and, in the opinion of the court, the
action cannot be sustained upon any principle of law, justice or
public policy. ,
1. ISo PBESON SHALL BE TWICE IMPRISONED UNLESS BY LEGAL /
OEDEE.
The words of the statute upon which the suit is brought are,
*' that no person who shall be set at large upon any habeas cor-
pus, shall be again imprisoned for the same offense, unless by
the legal order or process of the court wherein he is bound by
recognizance to appear, or other court having jurisdiction of
the cause ; and if any person shall knowingly, contrary to this
act, recommit or imprison, or cause to be recommitted or im-
YATES V. LANSING. 205
prisoned, for tlie same offense, any person so set at large, he shall
forfeit to the party grieved, twelve hundred and fifty dollars."
There appear to be several strong reasons why this section in
the statute cannot support the action.
2. Pkkvious disohaege of plaintiff not authoeized.
The order of the Court of Chancery was legal, inasmuch as
the previous discharge of the plaintiff was not in a case author-
ized by the statute, and was null and void in law. This was
the decision of the court at the last August term (4 Johns. Rep.
317), and it will be unnecessary to review that point, or repeat
what was then said. According to the judgment of the court,
there cannot be a pretext for this suit, even if the defendant
was otherwise liable for an undue exercise or misapplication of
the powers of his court.
3. COUET HAVING JUEISDICTION MAT EE-IMPEI80N, NOTWITHSTAND-
ING discharge.
But the point which I purpose now principally to consider
is, whether there be any foundation in law for the suit, admit-
ting that the defendant was mistaken in supposing that the dis-
charge of the plaintiff under the habeas corpus was unduly
made. The statute allows the party so discharged to be again
imprisoned for the same offense, provided it be by the legal
order or process of the court wherein he is bound by recogni-
zance to appear, or other court having jurisdiction of the cause.
Any court which has jurisdiction of the subject matter, may re-
imprison, notwithstanding the discharge. To state a plain case :
if a person committed at a Court of Oyer and Terminer, or Ses-
sions of the Peace, of a felony, and imprisoned in the state pri-
son, be discharged by a judge on haheas corj>us, on the ground
that the court had no authority to commit, or that the order of
commitment was invalid, would any one doubt that the court
might cause the convict to be further re-Imprisoned either upon
the same warrant, if it judged it suiEcient, or by awarding a
new and better one? The statute never intended such a de-
struction of principle as- to intrust to a judge in vacation the
power to control the judgment, or check the jurisdiction of a
court of record.
206 JAMES KENT.
4. It 18 SUFFICIENT IF OOUET HA.8 JUKI8DI0TI0N OF CAC8E OF
COMMITMENT.
Our system of appellate jurisprudence is built upon a
sounder foundation, and, instead of intrusting to the fiat of a
single judge to correct the errors of any court of justice, it has
provided the constitutional process by appeal, or a writ of error.
It is sufficient that the court which commits has jurisdiction of
the cause of commitment ; and as the cause in the present case
was an alleged malpractice and contempt, the Court of Chancery
most undoubtedly had jurisdiction over the subject matter. It
is decisive on the point that the court considered the act, of
Tvhich it complained, to be a contempt and malpractice, by
being an unauthorized interference with the practice of the
court. Every court judges exclusively for itself, of its own
contempts ; no other court, and much less a single judge out of
court, can undertake to judge on the question. The plaintifiE
was re-committed, to use the language of the order, for " con-
tempt and malpractice ; " and whether the Court of Chancery
was right or wrong in considering that the plaintiff's conduct
amounted to a contempt, and whether it took the proper steps
to ascertain the contempt, is perfectly immaterial as to the
point of jurisdiction. It had authority to punish contempts.
It must judge what are contempts. Practicing as solicitor
without leave, and practicing in another's name, and practicing
in another's name without his knowledge, are all misdemeanors
and contempts of the court. These are undeniable propositions.
On the ground which the court took, then, it certainly had
jurisdiction of the subject matter. The case of Howell, the re-
corder of London, is to this purpose. He presided at a Court
of Oyer and Terminer, and fined and imprisoned a juror for
bringing in a wrong verdict. In a suit against him for this act,
the whole court of Common Bench declared that the Oyer and
Terminer had jurisdiction of the cause, because it had power to
punish a misdemeanor in a juror ; though in the case before the
court, the recorder had made an erroneous judgment in consider-
ing the act of the juror as amounting to a misdemeanor, when in
fact it was no misdemeanor.*
» Hammond v. Howell, 2 Mod. 218.
YATES V. LANSI^•G. 207
6. ReSPONSTBILITT of JtTDGES AT COMMON LAW FOB JUDICIAL
ACTS.
To be prepared to give a sound construction to the statute
giving tlie penalty in question, we ought to bear in mind the
uniform and solemn language of the common law, as to the re-
sponsibility of judges, by private suit, for their judicial deci-
sions. "We shall never faiow," says Lord Coke, "the true
reason of the interpretation of the statutes, if we know not
what the law was before the making of them." Where courts
of special and limited jurisdiction exceed their powers, the
whole proceeding is corai^i non judice, and all concerned
in such void proceedings are held to be liable in trespass.*
But I believe this doctrine has never been carried so far as to
justify a suit against the members of the superior courts of
general jurisdiction, for any act done by them in a judicial
capacity. There is no such case or decision which I have met
with, and I find the doctrine to be decidedly otherwise. In
Miller v. Seeve,t Lord Chief Justice De Grey said, that the
judges of the king's superior courts of general jurisdiction
were not liable to answer personally for their errors in judg-
ment. The protection as to them was absolute and universal ;
with respect to the inferior courts, it was only while they act
vrithin their jurisdiction. The penalty sought for in the pre-
sent suit, was, I think, very clearly imposed upon individuals
only, acting ministerially or extrnjudicially out of court. The
words of the statute do not apply to the act of a court done of
record ; and we ought to require a positive application of the
penalty to such a case, before we can in decency presume that
the statute intended so far to humble and degrade the judicial
department, as to render the judges responsible in a civil suit
for their judicial acts.
The doctrine which holds a judge exempt from a civil suit
or indictment for any act done, or omitted to be done by him,
sitting as judge, has a deep root in the common law. It is to be
found in the earliest judicial records, and it has been steadily
maintained by an undisturbed current of decisions in the En-
* Case of the Marshalsea, 10 Co. 68; Terry «. Himtington, Hardres, 480.
t 2 Black. Rep. 1141.
208 JAMES KENT.
glish courts, amidst every change of policy, and through every
revolution of their government. A short view of the eases will
teach us to admire the wisdom of our forefathers, and to revere
a principle on which rests the independence of the administra-
tion of justice. Juvat aocedere fontes atque hmtri/re.
6. Eaelt authorities secueing and eecognizing the inde-
pendence OF THE JUDICIAET.
Sergeant Hawkins * lays down this general rule, as the re-
sult of his inquiries on the subject : " That the law has freed
the judges of aU courts of record from all prosecutions whatso-
ever, except in the parliament, for anything done by them
openly in such courts as judges. For," he adds, " the authority
of government cannot be maintained, unless the greatest credit
be given to those who are so highly intrusted with the admin-
istration of public justice, and that if they should be exposed
to the prosecution of those whose partiality to their own causes
would induce them to think themselves injured, it would be
impossible for them to keep up in the people that veneration of
their persons, and submission to their judgments, without
which it is impossible to execute the laws with vigor and suc-
cess."
We met with the principle here stated as early as the Book
of Assize, 27 Ed. Ill, pi. 18. The case there was, that A. was
indicted, for that, being a judge of Oyer and Terminer, certain
persons were indicted before him of trespass, and he had entered
upon the record that they were indicted of felony, and judg-
ment was demanded, if he should answer for falsifying the
record, since he was a judge by commission ; and all the judges
were of opinion that the presentment was void. And at this
same early period we find this wise protection extended equally
to grand jurors. In 21 Ed. Ill, Hil. pi. 16, a writ of conspiracy
was sued in King's Bench, and the question was, whether it be
a good plea to the action, that the defendants were indictors in
the case complained of, and it was held to be a good plea. In
9 Hen. VI, 60, pi. 9, an action upon the case was brought
against A. for fraud, in executing the office of escheator, and
* B. 1, c. 7, p. 6.
YATES V. LANSING. 209
Babington, J., said, and so it was agreed, that such a suit would
not lie against a judge of record. So in 9 Ed. lY, 3, pi. 10, it
was held by Littleton, J., and not denied, that an action of
assault and battery would not lie against a justice of the peace,
for what he did as a judge of record ; and the same principle
was afterwards more solemnly advanced by all the judges, in
2 Ed. IV, 67, pi. 49. They aU concurred in opinion, that
for what a justice of the peace did in the sessions he was not
amenable.
7. JUEOES AND JUDGES ALIKE PROTECTED IN THEIK OFFICIAL
ACTS.
These cases, and many more opinions of the like effect,
which could be gleaned from the year books, conclusively show
that judges of all courts of record, from the highest to the
lowest, and even jurors, who are judges of fact, were always
exempted from prosecution, by action or indictment, for what
they did in their judicial character. It did not escape the dis-
cernment of the early sages of the law, that the principle requi-
site to secure a free, vigorous and independent administration
of justice, applied to render jurors, as well as judges, inviola-
ble; and I fully acquiesce in the opinion of Lord Ch. J.
Wibnot, that trials by jury wiU be buried in the same grave
with the authority of the courts who are to preside over them. '
But I proceed to show that in subsequent periods of the
English law, the doctrine was equally asserted and enforced.
Staunf ord, in his Pleas of the Crown, which was first published
in 1567, says (p. 173), that no prosecution for conspiracy lies
against grand jurors, for it shall not be intended, that what
they did, by virtue of their oaths, was false and malicious ; and
that the same law applied to a justice of the peace, for he shall
not be punished as a conspirator for what he does in open
session as a justice. In the case of Floyd and Barker,* the sub-
ject underwent a solemn consideration by Lord Coke and aU
the judges ;• and their resolution was, that no grand juror was
responsible for finding an indictment, and that no judge, who
tries and gives judgment in a criminal case, or does any act in
• 12 Co. 23.
14
^10 JAMES KENT.
court, was to be questioned for it, either at the suit of the
party, or of the king. And it was observed, " that if the
judges of the realm who have the administration of justice,
were to be drawn in question, except it be before the king
• himself, it would tend to the slander of justice, and those who
are the most sincere would not be free ;from continual calum-
niations." In Ayre v. Sedgwick,* Noy, J. laid down the same
uncontradicted rule, that no action lay against a judge for any-
thing which he did as judge. But the case of Hammonds.
Howell f deserves our particular notice, as being peculiarly
weighty on the point before ns. This is the case to which I
have already alluded for another purpose. The defendant was
recorder of London, and, as one of the judges of Oyer and Ter-
miner, had fined and imprisoned the plaintiff, because he had
brought in a verdict, as a petit juror, contrary to the direction
•of the court and the evidence. If ever a case was calculated to
awaken sensibility, and to try the strength of the principle, this
must have been one. It arose some time after the decision of
IBushell's case, in which it was agreed by all the judges, that a
juror was not finable for his verdict. The act of the defendant
was admitted to have been illegal, and no doubt it struck the
whole court as a high-handed and arbitrary measure. The
counsel for the plaintiff admitted the weight of the objection,
that an action would not lie against a judge of record for what
he did, quatenus a judge ; and he endeavored to except this
case from the general principle, by contending, that what the
defendant did, was not warranted by his commission, and that,
therefore, he did not act as judge. But the court did not yield
to such miserable sophistry ; for they held, that the bringing of
-the action was a greater offense than the imprisonment of the
plaintiff, for it was a bold attempt both against the government
and justice in general. They said that no authority, or sem-
blance of an authority, had been urged for an action against a
judge of record, for doing anything as judge ; that this was
never before imagined, and no action would lie against a judge
for a wrongful commitment, any more than for an erroneous
judgment; that though the defendant acted erroneously, he
• 2 Roll. Rep. 199. \l Mod. 184 ; 2 Mod. 218.
YATES V. LANSING.
211
acted judicially, and if what he did was corrupt, complaint
might be made to the king, and if erroneous, it might be re-
versed.
8. Atjthoeity — ^HoLT, Mansfield and De Geet.
The case of Groenvelt v. Burnwell * arose long after the
passing of the habeas corpus act, and the unanimous opinion
of the Court of King's Bench was given by Sir John Holt,
whose name has always been held in reverence by English free-
men ; for he was a sound judge and an inflexible patriot, who
manifested, on every occasion, a generous and distinguished
zeal for the liberties of the people. He went at large into the
cases in support of the doctrine, and showed, to every one's
entire satisfaction, that judges were not liable to an action by
the party, for what they did as judges ; that no averment was
admissible that a judge of record had acted against his duty ;
that if even a justice of the peace should record that, upon his
view, as a force which was no force, he could not be drawn in
question, for it is a judicial act ; that, in like manner, jurors
were not responsible for their verdicts, because they were
judges of fact; and he added, in this emphatical language,
" that it would expose the justice of the nation, and no man
would execute the office of judge, upon peril of being ar-
raigned, by action or indictment, for every judgment lie pro-
nounces." In the very modem cases of Miller v. Searl and
others,t and of Mostyn v. Fabrigas,:!: De Grey, Chief Justice,
in the one, and Lord Mansfield in the other case, explicitly and
emphatically declare the same doctrine. Indeed, I am per-
suaded that the discussion of the question, even under this 5th
section of the habeas corpus act, would not now be endured in
any court in Westminster Hall.
9. YiEWS ADOPTED IN AMEEIOAlf COUETS.
I shall close this review of the cases with noticing one
arising in an American court. The case I allude to is that of
Phelps V. Sill, lately decided in tlie Supreme Court of Connec-
ticut.§ From the cliaracters composing that court, I think the
* 12 Mod. 386 ; 1 Salk. 396 ; 1 Ld. Kaym, 454. f 2 Black. Rep. 1146.
i Cowp. 112. § 1 Day's Cases in Error, 315.
212 JAMES KENT.
decision entitled to great consideration. That was a suit
against a judge of probates for omitting to take security from
a guardian, and the court held that the action would not lie.
They said that " it was a settled principle that a judge is not to
be questioned in a civil suit for doing, or for neglecting or re-
fusing to do, a particular official act, in the exercise of judicial
power. That a regard to this maxim was essential to the ad-
ministration of justice. If by any mistake in the exercise of
his office a judge should injure an individual, hard would be
his condition, if he were to be responsible for damages. The
rules and principles which govern the exercise of judicial
power are not, in all cases, obvious ; they are often complex,
and appear under difEerent aspects to different persons. No
man would accept the office of judge, if his estate were to
answer for every error in judgment, or if his time and property
were to be wasted in litigations with every man whom his de-
cisions might offend."
10. Judges liable only foe acts done m a ministeeiai,
CAPACITY.
After this recognition of the principle, I may confidently
appeal to every sound and intelligent lawyer, whether it could
possibly have been the meaning of the habeas corpus act to
make the chancellor, or any other judge of any other court of
.record, responsible to a civil suit, for a heavy penalty, for an ac-
tion done of record by him, while sitting in his court of justice?
Ought such a sacred principle of the common law as the one
we have been considering, to be subverted without an express
declaration to that effect? Does such a construction appear
ever to have been entertained in any book, or by any individual,
from the time of the statute of Charles II, until the bringing
of the present suit ? Our act is but a transcript from the En-
glish statute, and Sergeant Hawkins * expressly excludes every
such construction. "The habeas corpus act," he observes,
" makes the judges liable to an action at the suit of the party,
in one case only, viz., in refusing to award a habeas corpus, and
seems to leave it to their discretion in all other cases to pursue
* B. 2, c. 16, § 24.
YATES T. LANSING. 213
the directions of the act, in the same manner as they ought to
execute all other laws, without making them subject to the ac-
tion of the party, or to any other express penalty or forfeiture."
The penalty to which the chancellor and judges are liable, is
mentioned in the fourth section of the act ; and that is given
against them by name, and only for their refusal, in the vaca-
tion time, to allow a writ of habeas corpus, when duly applied
for. The chancellor and judges may refuse such a writ, at
their discretion, if applied for in term time, and the penalty
will not attach. It is only when they refuse, in a mere minis-
terial capacity, to allow a writ, that they are made responsible.
The allowance of a writ in vacation is not a judicial act. It is
merely analogous to the case stated in Green v. The Hundred
of B.,* where it was held that an action on the case lay against a
justice of the peace, for refusing to take the oath of the party
robbed, because, ia such case, he did not act as a judge, but as a
particular minister appointed by the statute of Eliz. to take
examinations. The habeas corpus act does not, then, in any of
its provisions, violate or even touch the principle, that no suit
lies for a judicial act. Though the judge is bound under a
penalty to allow the writ, yet when the prisoner is brought be-
fore him he is to discharge, bail, or remand him, as he shall be
advised ; and no action or penalty is given for what he shall
then do or refuse to do.
11. An intentionai, violation of the statute can only be
imputed to a judge in case of impeachment.
Judicial exercise of power is imposed upon the courts.
They must decide and act according to their judgment, and
therefore the law wiU protect them. The chancellor, in the
case of the plaintiff, was bound in duty to imprison and re im-
prison him, if he considered his conduct as amounting to a con-
tempt of his court. The obligations of his ofiBce left him no vo-
lition. He was as much bound to punish a contempt committed
in his court as he was bound in any other case to exercise his
power. He may possibly have erred in judgmeht, in calling an
act a contempt which did not amount to one, and in regarding
• 1 Leon. 323.
214 JAMES KENT.
a discharge as null when it was binding. This court may have
erred in the same way ; still it was but error of judgment, for
which neither the chancellor, nor the judges of this court, are
or can be responsible in a civil suit. Such responsibility would
be an anomaly in jurisprudence. No statute could have in-
tended such atrocious oppression and injustice. The penalty
is given only for the voluntary and willful acts of individuals,
acting in a private or ministerial capacity. It is a mulct, and
given by way of punishment. The person who forfeits it, must
" knowingly, contrary to the act," re-imprison, or cause the
party to be re-imprisoned. There must be the scienter, or in-
tentional violation of the statute ; and this can never be im-
puted to the judicial proceedings of a court. It would be an
impeachable offense, which can never be averred or shown but
under the process of impeachment,
J!To man can foresee the disastrous consequences of a prece-
dent in favor of such a suit. Whenever we subject the estab-
lished courts of the land to the degradation of private prosecu-
tion, we subdue their independence and destroy their authority.
Instead of being venerable before the public, they become
contemptible; and we thereby embolden the licentious to
trample upon everything sacred in society, and to overturn
those institutions which have hitherto been deemed the best
guardians of civil liberty.
I am, therefore, of opinion that judgment ought to be en-
tered for the defendant.
LIVINGSTON V. ROOSEVELT.
215
II.
ONE PAETNEE CANNOT BIND HIS COPAETNEE,.
EXCEPT IN THE COUESE OF COPAET-
NERSHIP DEALINGS.
LXVINGSTOH V. EOOSEVELT, NeW YoEK SuPKEMB CoURT^
Mat, 1809.
[4 Johns., 261.]
Ajtaltsis of Opinion of Chief Justice Kent.
i. Partnership note given for individual
debt does not bind the partnerstiip.
3, The transaction in suit created an indi-
vidual not a partnership liability.
3. Other circumstaaces showing that the ob-
ligation was an individual not a part-
nership debt.
4. The written and parol testimony show
that it was an individual debt.
5. The question of notice applies to the orig-
inal vendor.
6. The question of fact should have been
submitted to the jury.
7. All the facts show constructive notice
that there was no firm debt.
8. There must be something in the nature of
the debt or the partnership to bind the
firm,
9. Indicia by which the nature of the part-
nership must be ascertained.
10, One partner cannot make a valid part-
nership engagement except on a part-
nership account.
11. Lord Kenyon on authority of one partner
to bind the firm.
13. When creditor will be chargeable with
notice that he is not dealing on a part-
nership account.
13. When creditor not chargeable with such
notice.
It is a general 'rule in the law of partnership, that one partner has no
power to bind his copartner for anything out of the course of their partner-
ship dealings. The principle on which the right of one partner to bind his
associatesis based, rests upon necessity; upon the community of interest in
the firm's assets and profits ; and upon the implied assent which arises from the
copartnership ; but this assent cannot be presumed or implied in any contract
which is not within the scope of the copartnership business. It is only to
act in the course of their particular business, that an authority is delegated
by partners to each other, and it is only in such transactions that strangers
have a right to go on the credit of the partnership funds. To this rule there
are three exceptions; (1) where the partner who denies his liability has an
interest in, or has derived some benefit from, the contract; (2) where the firm
name is attached to negotiable paper, in the hands of a hona fide hoXAei, with-
out notice, before maturity; (3) where no diligence or caution has been used
to inform the world of the character or nature of the partnership, because,
in the absence of proof to the contrary, the partnership will be presumed
to be a general one.
But what is a general partnership? Can there be shown an instance of a
partnership so general and comprehensive in its character, as to embrace
within its scope every branch of commercial enterprise, and every species of
216' JAMES KENT.
speculation in wliich its individual members may be tempted to embark?
From their very nature, partnerships must, of necessity, be more or less lim-
ited. This proposition is illustrated by Chief Justice Kent, where he cites an
example of a member of a general commercial partnership buying western
lands, or a member of a law firm purchasing groceries or furniture for his fam-
ily. In such cases he says no one will suppose the partnership can be held.
But it has been decided that partners are liable for money borrowed by one
partner on the credit of the firm, and in the course of the business of the firm,
though the borrower misapplied the funds thus borrowed.* And the same
rule applies where the money is borrowed by one partner, not expressly
on his individual credit, partly for his own use and partly for the use of the
flrm.f In the present case it was sought to hold the partnership on the
theory that it was a general one, and also on the theory that one partner has
power to bind his copartner in any event. These grounds were held to be
untenable. The case is as follows:
Benjamin Livingston brought suit against Cornelius C. Roosevelt and
Cornelius I. Eoosevelt, as copartners, carrying on business in the city of
New York, under the firm name and style of C. C. Roosevelt & Co., to re-
cover upon the following note :
New Tork, April 5, 1805.
Six months after date, I promise to pay to the order of C. C. Roosevelt
& Co., the sum of one thousand dollars, value received, without defalcation.
C. I. ROOSEVELT.
The maker then indorsed upon it the name of his firm, C. C. Eoosevelt &
Co., and delivered it to the plaintiff for value. The note having been pro-
tested at maturity for non-payment, suit was brought against the indorsers
and payees, C. C. Eoosevelt & Co. Cornelius C. Roosevelt alone defended
and resisted payment, on the ground that the obligation was given for the
individual debt of the maker, Cornelius I. Roosevelt, and was made without
the knowledge or consent of his copartner, and claimed as matter of law that
one partner has no power to bind his copartner for anything out of the course
of their copartnership dealings.
It was insisted on the part of the plaintiff, in answer to this, that the
partnership was a general one, and that, therefore, one partner could bind
the firm by pledging its credit in a business transaction, though not strictly
within the line of business carried on by the partnership.
The note in suit was given under the following circumstances: The two
Roosevelts, in February, 1803, formed a general partnership for carrying on
business as sugar refiners. Upon their building in Thames street the words
"sugar house" were painted in large letters. The partnership was adver-
tised in two city papers as being for the purpose of carrying on business as
sugar refiners. John G. Bogert, acting as the plaintiff's agent, had in his
possession as administrator of Anthony Carroll, deceased, twenty pipes of
brandy, which were purchased by Cornelius I. Roosevelt, who gave plaintiff
in payment therefor, the note in suit. It was made and delivered at the pri-
* 1 Parsons on Contracts, page 182.
f Church V. Sparrow, 5 Wend. 223; Whitaker v. Brown, 16 Wend. 605;
Miller j;. Manice, 6 Hill's N. Y. 214.
LIVINGSTON V. ROOSEVELT. 217
vate residence of the maker, the brandy was billed to him, and shipped on
board his private schooner, the Elizabeth, to the West Indies, with a variety
of other articles. Cornelius C. Roosevelt had no interest or concern in the
vessel, which had been purchased by his brother on his individual account,
and for which he had given his individual note. Cornelius I. swore also,
when the brandy passed through the custom house, that it belonged to him
individually. It appeared further, that at the time of the sale it was imder-
stood between the plaintiff and C. I. Roosevelt, that the credit of the firm
was to be given to secure the debt, plaintiff first satisfying himself that the
two Roosevelts were partners, but nothing was said at the time as to the
form of this note, which Cornelius I. drew, nor was anything said about the
sale being made directly to the partnership.
Upon the evidence, the trial judge instructed the jury to find a verdict
for the plaintiff, and from this judgment an appeal was taken, when the ver-
dict was set aside as contrary to the law and the evidence.
The opinion of the Chief Justice is as follows:
KENT, C. J. — The plaintifE cannot succeed in this case if
the facts warrant the conclusion, that he took a partnership se-
curity for a debt which he actually knew, at the time, was the
private debt of the particular partner. Nor can he succeed, if
this actual knowledge be not made out, provided the subject^
matter of the contract, and the nature and circumstances of the
copartnership, were sufficient to charge him with constructive
or legal notice of the fact. Believing these propositions to be
correct, I shall examine the case to see if, according to them,
the plaintiff can be permitted to retain the verdict.
1. Paetneeship note given foe individual debt does not
BIND the PAETNERSHIP.
The law is well settled, that if a person takes a partnership
security from one of the partners, for what is known at the
time to be the particular debt of the partner who gives such
security, the copartnership is not holden. The cases in this
court of Livingston v. Hastie & Patrick, and of Lansing v. Gaine
& Ten Eyck (2 Caines, 246 ; 2 Johns. Eep. 300), were decided
upon this ground ; and the cases in the English courts of Arden
V. Sharpe & Gilson, Sherreff' v. Wilks, and the case ex-parte
Bonbonus in Chancery (2 Esp. Eep. 524 ; 1 East, 48 ; 8 Yesey,
jun. 540), aU recognize the same principle. The knowledge in
the creditor, that the partnership name is given for the individual
debt of one partner, renders the transaction fraudulent and
218 JAMES KENT.
void in respect to the copartnership. In the present case, the
jury were told that, by law, the plaintiff was entitled to recover.
According to my view of the case, it ought to have been ob-
served to the jury, that the weight of evidence was in support
of the allegation, that the plaintiff understood, at the time, that
he was contracting a debt with Cornelius I. Hoosevelt, in his in-
dividual capacity, and that, therefore, the plaintiff was not en-
titled to recover. Let us cast an eye over the material facts.
2. The thanbaction in suit ceeated an nroivrDTrAL not a
PAETNEESHIP LIABILriT.
The note in question was given for 20 pipes of brandy sold
to C. I. Roosevelt, and there is no evidence in the case that
Cornelius 0. Eoosevelt & Co. ever dealt in the article of brandy,
or carried on any business in the grocery line, or were con-
cerned generally in trade. There was no evidence that the
firm ever held themselves Out to the world as being engaged in
any other concern than the sugar-refining business, nor that they
ever did in fact step beyond that limited concern. The plaintiff
was then unauthorized to conclude that this purchase was upon
a partnership account. Prima facie, it certainly was not, and
it lay with him to show what color he had for a contrary infer-
ence, and if he has shown none that is reasonable, he is not well
founded in his attempt to charge this debt upon the firm.
The intrinsic circumstances of the transaction are sufficient
to show that the plaintiff knowingly dealt with C. I. Roosevelt,
in his private capacity, and there can be no doubt but that, as a
matter of fact, the purchase of the brandies was on the separate
account of C. I. R., and that the partnership was not interested
in the purchase. The brandy was not only purchased by C. I.
Roosevelt, but shipped by him for the West Indies, on board a
vessel owned by him individually, and with other goods pur-
chased and shipped by him on his private account. He drew
this note, in his own name, for the purchase money, in favor of
the company, and then indorsed the name of the firm, and de-
livered the note, so indorsed, to the plaintiff. What can be
plainer than the language of this fact, that the note was drawn
and received for a private debt, and that the firm was only
given as a security ? Was it ever known before that one part-
LIVINGSTON V. ROOSEVELT. 219
ner contracting a debt, in behalf of the copartnership, took this,
circuitous mode to give the note of his house ? There could be
no possible use in it, and merchants are not accustomed to take
such indirect methods in doing business, ^without a motive.
If it was understood to be the proper debt of the company,
why was the individual partner bound directly and absolutely
for the money, and the company only contingently, in the char-
acter of indorsers ? Why did the plaintiff, when he sold to a
company, take upon himself the burden of making the first de-
mand, at the precise time of payment, upon the individual
partner, and of then using due diligence in giving notice so as
to fix the indorsers ? And, lastly, why did the partner himself
assume the responsibility of being first singly answerable for
the debt, and of being obliged to pay it, or to lose his credit
before the company were resorted to ? These questions cannot
be answered, as it strikes me, but upon the supposition that the
seller, as well as the purchaser, imderstood that the sale was on
a private, and not on a partnership account. The agent of the
plaintiff sufficiently explains why the note was taken in thia
shape, when he says that " the partnership engagement was to
be given for the brandies."
3. Other cntcuMSTANCES showing that the obligation war
AN INDIVIDUAL NOT A PAETNEE8HIP DEBT.
There are other facts which go to prove that the brandies
were understood to be sold to C. I. Eoosevelt, and not to the
company. The note was called for and given at the dwelling-
house of C. I. Koosevelt, not at the counting-house of the firm ;
the bill of parcels was made out in the name of C. I. Roosevelt
only ; the brandy was entered at the custom-house in his name,
and the plaintiff made oath there that the sale was to C. I.
Eoosevelt. This last fact ought to have great weight in form-
ing our conclusions upon the transaction. The affidavit was
made before the note was given, and when the intention of the
parties must have been well understood and recollected. It
was a solemn act, in which we must suppose that the fact of
the sale, and to whom, was stated with caution and precision.
It was made by a person who was perfectly competent to scru-
tinize and feel the force and import of expression, and who
220 JAMES KENT
must have distinguished quickly and accurately between a sale
to an individual and a sale to a mercantile company. The
affidavit is conclusive that the plaintiff did not then under-
stand there was any other purchaser than the single individual,
and he must have obtained his knowledge of the sale, either
from his own view of the act, or from the information of his
agent.
It appears then to me to be a consequence not to be resisted,
that the note was drawn in the shape which we see it, in order
to obtain the security of the firm to a debt, which both the
contracting parties knew to be the proper debt of the single
partner.
4. The written aito paeol testimony show that rr was an
INDIVIDUAL DEBT.
The written testimony, from which this conclusion is drawn,
weighs much more in the scale of evidence than the parol testi-
mony (even if opposed to it) of the agents of the plaintifE, giv-
en two years and a half after the transaction took place. John
Cross says that the bill of parcels was made out as C. I. Roose-
velt directed, and that he received no directions from the plaint-
iff, " nor does he recollect " receiving any from John G. Bogert,
his agent, to make out the bill; that Bogert directed him to
call for the -note, "but gave him no directions relative to the
form of it," and when it was delivered, neither Bogert nor the
plaintiffs made any objections to the form of it. This negative
testimony, then, proves nothing. Bogert was the principal
agent of the plaintiff in the transaction, and he says that he un-
derstood the purchase was on a partnership account, although
he declares that "nothing was said relative to whose account
the purchase was made." It was then a latent inference which
he had no authority to draw ; and it is a little remarkable, that
if it was understood from the beginning to be a partnership
purchase, that the agent should say " that the sale was not com-
pleted until he had satisfied himself by inquiries that the de-
fendants were partners, and that the partnership engagement
was to be given for the brandies." The construction which I
give to this parol testimony goes in confirmation of the written
proof ; and even if any part of it should be deemed repugnant,
LIVINGSTON V. ROOSEVELT. 221
it cannot be compared to the former, either in its judgment of
law or in its power to produce conviction.
5. The question of notice applies to the original vendor.
There is one circumstance in the case not well explained.
It states that the sale of the brandies was made by Bogert, as
agent of the plaintifE. This fact appears to be conceded
throughout the case, and Bogert himself testifies that lie acted
as the plaintiff's agent; and yet it is further stated that the
brandies were in the hands of Bogert, as administrator of one
Anthony Carroll, deceased, by whom the brandies were im-
ported, and that they were sold in part satisfaction of a debt
due from that estate to the plaintiff. It is possible that Carroll
and the plaintiff had been concerned together as partners in im-
porting the brandies, or that Carroll acted nominally as owner,
and really as agent of the plaintiff, on whose capital the busi-
ness was conducted, for the affidavit of the plaintiff at the cus-
tom house (and which was made to obtain the usual debenture)
must have been in the character of purchaser from CarroU.
But without being able to solve this fact it is sufficient to ob-
serve that upon this case, the court must consider the plaintiff
as the real vendor of the brandies, whatever may have been the
form which the title had previously assumed. He was consid-
ered by all parties, both at the trial and upon the argument, as
the vendor, and he took the note, as principal, for a debt due to
him from Roosevelt. The question of notice, therefore, applies
to him as an original party to the sale, and though he may have
chiefly effected the sale, and took the note, by means of Bogert,
his agent, yet in aU such cases notice to the agent is notice to
the principal.
6. The question op fact should have been submitted to
THE JURY.
I am, therefore, of opinion upon the first point, that the
verdict is against evidence. The inevitable inference from the
testimony appears to me to be, that the plaintiff or his agent
actually knew that the purchase was not a partnership concern,
and that they required a partnership indorsement by way of
security. Instead of a pointed direction in favor of the plaint-
222 JAMES KENT.
iff, tlie justness of this inference ought to have been submitted
to the jury.
7. All the facts show oonstetjotive notice that theee
was no fiem debt.
But if the plaintiff did not in fact know that the purchase
was made by C. I. Koosevelt upon his own account, and acted
under the mistaken impression that it was a partnership pur-
chase, still the firm were not bound by the indorsement, be-
cause the facts disclosed amounted to constructive notice, or
notice in law. The partnership between the defendants was
confined to the sugar refining business. It had nothing to do
with the purchase or sale of brandies. The partners had given
timely and due notice in the public gazettes of their limited
engagement, and had designated the place where their business
was to be carried on. Every precaution was taken which the
nature of the case admitted, to guard the public against misap-
3)rehension. If persons were afterwards under a mistake as to
the confined nature of the partnership, it must have been owing
to some dealings of the copartnership, inconsistent with its de-
clared object, or to gross negligence in those persons, in not
seeking information at the proper sources. The understanding
of particular merchants, that the defendants were general part-
ners, was of no avail, without showing that the house had done
some act to mislead, or given some reasonable cause for that
impression. But there is no evidence before us, according to
my view of the case, that the partnership ever misled the pub-
lic, by a single act, or transacted any business which had not an
iminediate connection with its limited concern.
8. There must be something in the nature of the debt
OE the PAETNEESIIIP to bind the FIEM.
The habit of keeping partnership accounts with the banks I
do not consider as forming an exception to this conduct. That
habit was perfectly consistent with their particular and avowed
business, and it was, besides, a private matter, not in the way
of dealing, and which the public were not to know. The
checks and other proper negotiations with the banks were gen-
erally, if not entirely, drawn and conducted by C. I. Roosevelt,
LIVINGSTON y. ROOSEVELT. 223
and it does not appear that his partner ever knew of or rectified
a single- transaction with the banks. What those transactions
were ought to have been explained, and not left as they are
now, by the case, in total uncertainty. Each partner had a
power to draw checks in the partnership name, for the partner-
ship moneys in the bank, because it is incident to every part-
nership that every partner should have a power to possess and
■dispose of the partnership moneys and stock. Each partner^ in
limited as well as in general partnerships, can draw checks and
give notes, but it does not follow from thence that the paper
given by a partner on his private account would bind the firm,
because here the authority of the partner fails. There must,
then, be something in the nature of the debt, or in the nature
or conduct of the copartnership, to make the other partner re-
sponsible.
There are cases which go the length of this general propo-
sition, that one partner cannot pledge the partnership funds,
nor make a valid partnership engagement for his individual
debt (Pinkney v. Hull, 1 Salk. 126, and 1 Ld. Eaym. 175 ; the
cases of Gregson i'. Hutton and Marsh v. Vansemmer, cited in
1 East, 49 ; the opinion of Le Blanc, J., in 1 East, 55, and of
Lord Eldon in 6 Yes. jun. 604). "Whether this doctrine can be
supported, in cases where the person dealing with the partner-
ship is not chargeable with knowledge of the fact, I am not pre-
pared to say. I believe the English law is now understood to .
be otherwise and, perhaps, there is no distinction in principle
upon this point between special and general partnerships, and
that the question, in all cases, is a question of notice, express or
constructive.
9. Indicia, by which the nature of the paetneeship must be
asceetained.
All partnerships are more or less limited. There is no one
that embraces at the same time every branch of business, and
when a person deals with one of the partners in a matter not
within the scope of the partnership, the intendment of law will
be that he deals with him on his private account, notwithstand-
ing the partner may give the partnership name, unless there be
some circumstances in the case to destroy that presumption.
224 JAMES KENT.
"If," says Lord Eldon,* "under the circumstances, the person
taking the paper can be considered as being advertised that it
was not intended to be a partnership proceeding, the partner-
ship is not bound."
Public notice of the object of a copartnership, the declared
and habitual business carried on, the store, the counting house,
the sign, &c., are the usual and regular indicia by which the
nature and extent of a partnership are to be ascertained.
10. One paetnee cannot make a valid paetnership engage-
ment EXCEPT on a PAETNBESHIP ACCOUNT.
When the business of. a partnership is thus defined and pub-
licly declared, and the company do not depart from that partic-
ular business, nor appear to the world in any other light than the
one thus exhibited, one of the partners cannot make a valid
partnership engagement on any other than a partnership ac-
count. There must be some authority beyond the mere circum-
stance of partnership, to make such a contract binding. Were
it otherwise, it would be idle and worse than idle to talk of
limited partnerships, in any matter or concern whatever, and
the law would be recognizing an association, only to render it
a most dangerous illusion to those whom it embraced.
11. LoED Kenton on atjthoeitt of one paetnee to bind
THE FIEM.
Lord Kenyon must have understood the capacity of one
partner to bind the rest with this restriction, when he observed,
in the case of D. Berkom v. Smith and Lewis,t that persons
might be partners in a certain concern, and if they did not ap-
pear to the world as partners, it should not be suflBcient to make
them liable in cases not connected with the particular business.
The law will presume, in aU such cases, that the creditor is ad-
vertised that he is not dealing on a partnership account, and
for him to take a partnership engagement without the consent
of the firm, is, in judgment of law, a fraud upon the firm.
• 8 Vesey, 644. t 1 Esp. Rep. 29.
LIVINGSTON T. ROOSEVELT. 225
12. When creditoe will be chargeable with notice that
he is not dealing on a partnership account.
Suppose, in the case of a general commercial partnership, a
debt was to be contracted by one partner upon the purchase of
new lands ; or suppose, in the case of a partnership between
two attorneys, in law business, a partnership note was to be
given by one of them upon the purchase of groceries or furni-
ture for his family, it could not be supposed by any one that
the company would be holden. These would be plain cases of
a fraud practiced upon the firm, of which the creditor would
be chargeable with notice. "When the public have the usual
means of knowledge given them, and no means have been suf-
fered by the partnership to mislead them, every man is to be
presumed to know the extent of the partnership with whose
members he deals.
13. "When creditoe not chargeable with such notice.
There are, however, qualifications as to the extent of this doc-
trine, and some instances occur to me which explain and define
its application, and which it may not be amiss to mention.
If negotiable paper of a firm be given by one partner on his
private account, and that paper should pass into the hands of an
innocent and honafide holder, as in the case of paper negotiated
or discounted at the banks ; or if one partner should purchase
on his private account, an article in which the firm dealt, or
which had an immediate and direct connection with the business
of the firm, in these cases I should think that a different rule
ought to be adopted, and one requiring the actual knowledge,
of its being a private and not a partnership dealing, to be
brought home to the claimant. The circumstances of these
cases would take away the intendment of knowledge in the
creditor. The indorsee, for instance, of such a note, takes it
upon the credit of the partnership, and he has no means of
knowing, from the paper itself, on what account it was created,
and he has a right to presume it was a fair partnership engage-
ment. This is the English rule * in those pari^icular cases.
• 2 Esp. Eep. 524, 731.
15
226
JAMES KENT.
But the present case cannot be taken out of the operation
of the general rule. The plaintiff had no just ground to infer
that when he was selling brandy to C. I. Eoosevelt, he was deal-
ing with the sugar refining company. Considering the circum-
stances under which the partnership was announced and con-
ducted, he was chargeable with notice, that he was not dealing
on a partnership account.
I am accordingly of opinion that the verdict is against law
and evidence, and that it ought to be set aside and a, new trial
awarded, with costs to abide the event.
III.
PEIVATE PEOPEETT CAKKTOT BE TAKEN FOR
PUBLIC USE WITHOUT JUST COM-
PENSATIOK
Gaednee v. Yillaqe of Nbwbuegh, N. Y. Couet op Chah-
OEET, August, 1816.
[2 Johns. Ch., 162.]
Analysis of Chancelloe Kent's Opinion.
*. Right to use of water in running stream
a legal right.
z. Diversion or obstruction of a water-course
is a private nuisance.
3. In cases of private nuisance equity has
concurrent jurisdiction, by injunction,
with courts of law.
4. The right to a stream attaches to the free-
hold, and cannot be taken away with-
out " due process of law."
5. The legislature must provide for compen-
sation as a condition precedent to ex-
ercise of light of eminent domain.
6. Authority of Grotius, I^iffendorf and
Bynkershoeck.
7. Inviolability of private property secured
by organic law.
8. Provision for compensation must be em-
braced within the statute.
Specimens of Kent's opinions as a common law judge have been given.
We shall now present some judgments written by this eminent man, while
presiding over a court of equity as chancellor of the State of New York.
We turn with delight to his opinion rendered in the case of Gardner e. Vil-
lage of Newburgh, in which he emphasized the fundamental rule of oonsU-
tutionallaw, that pkivatb propbrty cannot be taken for public use
■WITHOUT JUST COMPENSATION. In vlew of the rapid tendency toward the
centralization of wealth and power; when we consider the gigantic influence
GARDNER t. VILLAGE OF NEWBURGH. 227
of great corporations which have grown up under the fostering care of both
national and State legislatures; when we realized the steady encroachments
of these corporate bodies, which, at times, seem almost strong enough to
l)reak through all constitutional limitations, it is indeed refreshing to turn to
the wholesome truth set forth in this opinion, which declares that the right
of private property is rendered sacred by the organic law, and that in taking
private property for public use, the legislature must, in all oases, first provide
for a fair compensation to individual owners, as a condition precedent to a
valid exercise of their power. The great chancellor declares emphatically
that any statute under which private property is authorized to be taken for
public purposes, is altogether nugatory, unless it shall contain provision for
making compensation to private owners, under some equitable assessment to
be provided by law. It won't do to assume that no injury will arise, and
leave private owners to get redress as' best they can, if their rights should be-
come impaired. The act itself must provide the remedy; and if a provision
for compensation is omitted, the court will restrain proceedings imder it by
injunction.
On the 27th of March, 1809, the legislature passed an act to provide for
furnishing the village of Newburgh with pure and wholesome water for pub-
lic and domestic purposes. The water was to be taken from a certain spring
upon a farm owned by Hasbrouk, one of the defendants, and conveyed thence
through conduits to the village. This spring was the source of a limpid
stream, which flowed down from Hasbrouk's lands, through plaintiff's farm,
and emptied into the Hudson. The plaintiff had from time immemorial en-
joyed the use of this stream, which passed his door, for watering his cattle,
feAilizing his fields, and for various domestic purposes; and upon its banks
le had erected mills and kilns. The trustees appointed under the s:atute,
■with the consent of the owner of the spring, proposed to tap this stream at a
point on Hasbrouk's land just before it intersected the land of the plaintiff,
and to deflect it through conduits across neighboring fields belonging to other
parties, thus depriving plaintiff altogether of its use. Application was made
to obtain plaintiff's consent, and the trustees offered him some trifling com-
pensation, which was by no means adequate, which was refused. The act
giving authority to take the water, provided for compensation to be made to
the owner of the spring, and of the lands through which the conduits were to
pass, but failed altogether to provide for compensation to the plaintiff, from
whose lands it was proposed to divert the stream.
The plaintiff accordingly filed his bill in equity, praying for an injunction
to restrain the defendants from depriving him of the use of the stream, on
the ground that the statute was unconstitutional so far as the plaintiff was
concerned, and conferred no authority on the defendants, because it con
tained no provision for affording him compensation for his property rights.
The chancellor granted the injunction in conformity with the following
opinion:
CHANCELLOE KENT.— The statute under which the
trustees of the village of Newburgh are proceeding,* makes
* Laws of 1809, oh. 119.
228 JAMES KENT.
adequate provision for the party injured by the laying of the
conduits through his land, and also affords security to the owner
of the spring or springs, from whence the water is to be
taken. But there is no provision for making compensation to
the plaintiff, through whose land the water issuing from the
spring has been accustomed to flow.
1. Eight to use of watee nr ETrNMNO steeam a legal
EIGHT.
The bm charges that the trustees are preparing to divert
from the plaintiff's land, the \^hole or the most part of the
stream, for the purpose of supplying the village. The plaint-
iff's right to the use of the water is as valid in law, and as use-
ful to him, as the rights of others who are indemnified or pro-
tected by the statute ; and he ought not to be deprived of it,
and we cannot suppose it was intended he should be deprived
of it, without his consent, or without making him a just com-
pensation. The act is unintentionally defective, in not provid-
ing for his case, and it ought not to be enforced, and it was not
intended to be enforced, until such provision should be made.
2. DiVEESION OE OBSTEUOTION OF A WATEE-COUESE IS A PEI-
VATE NUISANCE.
It is a clear principle in law, that the owner of land is en-
titled to the use of. a stream of water which has been accus-
toiped from time immemorial to flow through it, and the law
gives him ample remedy for the violation of this right. To
divert or obstruct a water-course is a private nuisance ; and the
books are full of cases and decisions asserting the right and af-
fording the remedy.*
3. In oases of peivate nuisance equity has concukeent jue-
isdiction, by injunction, with couets of law
The Court of Chancery hais also a concurrent jurisdiction, by
injunction, equally clear and well established in these cases of
private nuisance. Without noticing nuisances arising from
*F. N. B. 184; Moore v. Browne, Dyer, 319, b. ; Lutterel's Case, 4 Co. 86;
Glynne v. Nichols, Comb. 43; 2 Show. 607; Prickman v. Tripp, Comb. 231.
GARDNER v. VILLAGE OF NEWBURGH. 229
other causes, we have many cases of the application of equity
powers on this very subject of diverting streams. In Finch v.
Hesbridger,* the lord keeper held that after a long enjoyment
of a water-course ninning to a house and garden, through the
groimd of another, a right was to be presumed, unless disproved
by the other side, and the plaintiff was quieted in his enjoy-
ment by injimction. So again, in Bush v. Western, f a plaintiff
who had been in possession for a long time of a water course,
was quieted by injunction against the interruption of the de-
iendant, who had diverted it, though the plaintiff had not es-
tablished his right at law, and the court said such bUls were
usual. These cases show the ancient and established jurisdic-
tion of this court ; and the foundation of that jurisdiction is
the necessity of a preventive remedy, when great and immedi-
ate mischief or material injury would arise to the comfort and
useful enjoyment of property. The interference rests on the
principle of a clear and certain right to the enjoyment of the
subject in question, and an injurious interruption of that right
which, upon just and equitable grounds, ought to be pre-
vented.;]:
4. The eight to a bteeam attaches to the feeehold, and
CAIOJOT BE taken AWAY WITHOUT "dUE PEOCESS OF LAW."
In the application of the general doctrines of the court to
this case, it appears to me to be proper and necessary that the
preventive remedy be applied. There is no need, from what at
present appears, of sending the plaintiff to law to have his title
first established. His right to the use of the stream is one
which has been immemorially enjoyed, and of which he is now
in the actual possession. The trustees set up no other right to
the stream (assuming, for the present, the charges in the bill),
than what is derived from the authority of the statute ; and if
they are suffered to proceed and divert the stream, or the most
essential part of it, the plaintiff would receive immediate and
* 2 Vern. 390. f Free, in Ch. 530.
^ Anon., 1 Vern. 120; East India Company «. Sandys, 1 Vern. 127; Hills v.
University of Oxford, 1 Vern. 275 ; Anon., 1 Vesey, 476 ; Anon., 2 Vesey, 414 ;
Whitchurch ». Hide, 2 Atk. 391; 2 Vesey, 453; Attorney-General -d. Nichol,
16 Vesey, 338.
230 JAMES KENT
great injury, by the suspension of all these works on his land
which are set in operation by the water. In addition to this
he will lose the comfort and use of the stream for farming and
domestic purposes ; and besides, it must be painful to any one
to be deprived at once of the enjoyment of a stream which he
has been accustomed always to see flowing by the door of his
dwelling. A right to a stream of water is as sacred as a right
to the soil over which it flows. It is a part of the freehold
of which no man can be disseized " but by lawful judgment of
his peers or by due process of law." This is an ancient and
fundamental maxim of common right to be found in magna
charta, and which the legislature has incorporated into an act
declaratory of the rights of the citizens of this State (Laws, sess.
10, ch. 1).
5. The legislattiee must provide foe compensation as a con-
dition PEEOEDENT TO EXEECI8E OF EIGHT OP EMINENT DOMAIN.
I have intimated that the statute does not deprive the plaint-
iff of the use of the stream until recompense be made. He
would be entitled to his action at law for the interruption of
his right, and all his remedies at law, and in this court, remain
equally in force. But I am not to be understood as denying a
competent power in the legislature to take private property for
necessary or useful public purposes, and, perhaps, even for the
purposes specified in the act on which this case arises. But to
render the exercise of the power valid, a fair compensation
must, in aU cases, be previously made to the individuals af-
fected, under some equitable assessment to be provided by law.
This is a necessary qualification accompanying the exercise of
legislative power, in taking private property for public uses ;
the limitation is admitted by the soundest authorities, and is
adopted by all temperate and civilized governments, from a
deep and univprsal sense of its justice.
6. AUTHOEITT OF GeoTIUS, PuFFENDOEF AND BtNKEESHOEOK.
Grotius,* Puffendorf,f and Bynkershoeck,;]: when speaking
* De Jur. B.
tain Rawdon, an ancestor of the present Earl of Moria, and which is in old Eng-
lish verse, we have the attestation of sealing in these words :
' In token that this thing is sooth,
' I bite the white wax with my tooth.' "
ALEXANDER v. JAMESON. 261
left to a dwarf, according to the expression of Junius, to do the
work of a giant ? I speak of what the courts may do, com-
pared with what is practicable by the legislature, in respect of
reforming rules of construction, rules of evidence, and usages of
practice. There is an extent to which the courts cannot go,
which is to abolish the technical distinction in the use of seals
altogether, because acts of assembly recognize them ; such as
the distinction between notes not under seal, and bonds with
the annexing of seals. This, as regarding the statute of limita-
tions, or other presumption of the effect of seals.
4. A SEAL NOT AN AMULET TO WOEK A OHAEM OE MAGIC
SPELL.
•Seals might be of use, where there were seals distinguishhig
identity. Coats of arms came in with the Normans, taken
from the engraving on the shields ; and those cut on stone or
metal, or other material, might be of notoriety, and distinguish
persons. But this has ceased to be a use of them, with the
greater mass of the people, even in the countries of- chivalry ;
and here, in these States, never could be said to have had much
existence. Few of the emigrants could boast an ancestry.
There is no magic in words, said a learned judge, meaning
mere terms ; much less I would say can there be magic in
seals. To talk of seals ascertaining anything now, or assisting
to ascertain, cannot be comprehended, unless it could be thought
that there was some charm in them, some spell to work evi-
dence. It is as unmeaning as to any effect of this nature, as
the word Abracadabra put at the end of a signature.
5. JUEIES ALLOWED TO LOOK AT SEALS BECAUSE THET COULD
NOT BEAD.
Why should writings go to a jury at an early period, when
they could not read ? It saved the neck of a felon to be able
to read a verse. They could examine a seal as to its form, or
what was cut upon it, so far as respected images of substantial
things; but the arbitrary marks of letters were unknown to
them. The excluding unsealed instruments or papers might be
said to bei founded in one reason, according to the technical
notions of the times. Every writing not imder seal, came un-
262 HUGH H. BRACKENRIDGE.
der tlie denomination of parol. And because oral testimony
could not go but in the mind, this other parol could not go by
the hand. But there is a use in letting all go by the hand that
can be carried ; for it will assist the recollection, and assist the
memory. Startled by some doubt on this subject, I have heard
of a judge, a president of the Common Pleas, ruling that a let-
ter might go, because in fact it had been under seal. But I
believe we should smile, or wring the face with a grimace irre-
sistible, to talk of letters going under this subtlety. And yet,
in mercantile causes especially, there would be no possibility of
a fair examination without letting them go, whether the coun-
sel objected or otherwise. In land trials, what is to be done
with field notes, drafts, and scrapings of oflBce, unless, by a fic-
tion, we could suppose them as drawing with them the seal
above in the office to which they belong. But there was a time
when there was no seal in the office ; and this auxiliary would
not suffice. How could juries judge of original books of en-
tries, of accounts or calculations, and set oflf, without having
them with them ? Every case of this kind would have to go to
auditors or referees. An agreement not under seal could not
go, though it contained many stipulations.
6. The duty of the court to ^lbolish fbom jukispettdence
THE EUDE DISTINCTIONS OF FOEMEE TIME;S.
"We do not sit here, said a learned judge, to take our rules
from Siderfin and Keble, nor do we sit here to be bound by
every rule of a former period. We are not cerfs adscript to
the clods of decisions. If we thought ourselves bound by every
rule of the common law, it would furnish the best reason for
abolishing it. The reason of the law, says Lord Coke, is the
life of the law. And will not the reason cease with a change
of situation and circumstances? In an enchanted island we
might not find ourselves at liberty. But however judges
might be bound by every rule of jurisprudence in the island of
Great Britain, we have crossed the ocean, and are at the dis-
tance of three thousand miles. Our situation is changed, and
it is only such parts of the common law as have been introduced
by usage, that we are to regard. And not all that ; for we
have the right to change a usage, so far as respects our rules of
COMMONWEALTH v. TAYLOR.
263
practice. Will common sense and sound policy exclude writ-
ings from tlie jury that are not under seal, and carry the dis-
tinctions of rude times into our jurisprudence ? Though Holt
and Hale and Coke may have been entrammelled by them, we
ought not to be. It would be like taking the skin of a dead
horse for a horse. I can have no doubt but that in this case
the books ought to have been carried out by the jury, and
therefore I affirm the judgment.
Judgment affirmed.
III.
THE EIGHT TO INDICT FOE MAKING NOISE IN
PEIVATE HOUSE.
Commonwealth v. Tatloe, Octobeb Tebm, 1812.
[5 Binn., 277.]
Analysis of Judge Beackeneddge's Opinion.
. The motive of the entry may constitute a
misdemeanor.
, The work of the imagmation must be con-
sidered in connection with sudden
noise.
3. The indictment supported on the ground
of malicious mischief.
About ten o'clock on the night of the 24th of August, 1809, James Tay-
lor secretly entered the house of his neighbor, James Strain, and thereupon
suddenly made a great noise with intent to disturb his family, and Strain's
wife, Elizabeth, who was pregnant at the time, became terrified and fright-
ened to such an extent, that she sickened, and on the seventh of September fol-
lowing suffered a miscarriage. Taylor was indicted in the quarter sessions
of Franklin county. The nature of the charge was twofold: (1), a forcible
entry into Strain's house; (2), for malicious mischief. The language in the
indictment charged that Taylor, " with force and arms at Lurgan township,
in the county aforesaid, the dwelling house of James Strain there situate, un-
lawfully, maliciously and secretty did Ireak and enter, with intent to disturb
the peace of the commonwealth; and so being in the said dwelling house,
unlawfully, vehemently, and turbulently, did make a great noise in disturb-
ance of the peace of the commonwealth, and greatly misbehave himself, in the
said dwelling house ; and Elizabeth Strain, the wife of the said James, greatly
264 HUGH H. BRACKENRIDGE.
did frighten and alann, by means of which said fright and alarm, she, the said
Elizabeth, being then and there pregnant, did on the seventh day of Septem-
ber in the year aforesaid, at the county aforesaid miscarry, and other wrongs
to the said Elizabeth, then and there did, to the evil example, etc."
Taylor was convicted, whereupon he moved in arrest of judgment, on the
ground that the offense charged was not indictable, and the motion having
been granted, the case came before the Supreme Court on a writ of error.
It is an elementary rule of criminal law that an indictment will not lie
for a mere civil injury, or an injury which solely concerns a private individ-
ual. The offense charged must constitute a public wrong; the remedy for
private wrong being a civil action for damages. Applying this rule the
prisoner's counsel contended that there was here simply an entry without
force into a dwelling house, and there making a noise. That the noise did
not constitute a public nuisance, and there was no allegation as to how the
noise was made. That the charge was vague and uncertain, and embraced
simply a trespass punishable in damages to the extent of the injury.
There was some doubt in the mind of the Chief Justice (Hon. "William
Tilghman) as to whether there was a forcible entry, hut the indictment was
sustained on the ground that acts injiu^ious to private persons, which tend to
excite violent resentment, and thus produce fighting and disturbance of the
peace of society (as a challenge to fight a duel, or a libel on a deceased per-
son), are in themselves indictable, and it was clear that the prisoner's con-
duct tended to provoke wrath and produce violent passion.
Judge Brackenridge, however, holds that the motive and intent with
which the entry is made, and the use it is put to, should be considered in
ascertaining whether there was a misdemeanor. A noise, however, resulting
in fright, he held to be of itself an indictable offense, because a noise is a
noise, and there can be no inference that it is gentle, and when operating
upon the imagination often produces untold disaster and terrible results both
as to mind and body. Then follows a citation of numerous instances of the
effect produced upon the imagination by fright, commencing as far back as
the time of Paulus Emilius, the old Roman consul, famous for his victory
over the last of the Macedonian kings, and running down to the time of
Peter the Great, whose executors have not yet been able to execute the pro-
visions of his will with regard to the conquest of Europe and the Orient.
The erudition and style of this opinion are unique, and its like is not
to be found.
BEACKENRIDGE, J. — It cannot be inferred, vi teifnini,
that the word break means more than a clausum f regit, or a
breaking of the close in contemplation of law, even though a
dwelling house was the close broken; because the trespass
might be by walking into it, the door open. But the court
might refuse to quash, because it might appear on the evidence
that the breaking amounted to more than a clausum /regit ia.
trespass.
COMMOirWEALTH v. TAYLOR. 266
1. The motive of the entet mat constitute a misdemeanoe.
But taking the entry to amount to nothing more than a
walking in, the door open, may not the motive of his entry, and
the use he made of it, constitute a misdemeanor ? What is he
alleged to have done, after entering the house ? " Wilf uUy,
vehemently, and turbulently, did make a great noise." How is
a noise occasioned that is perceptible to the ear ? It must be
by an impulse of the air on the organs of hearing. And what
is it, whether it is by the medium of air, or water, or earth,
that an assault and battery is committed ? The impulse of the
air may give a great shock ?
2. The woek op the imagination must be consideeed in
connection with sudden noise.
Birds have fallen from the atmosphere struck by a mighty
voice. This happened at the celebration of the Isthmian
games, as related by Plutarch in his life of Paulus EmUius.
Are we bound to consider the noise gentle? Are we not at
liberty to infer the mightiest effort of the human lungs ? But
the power of imagination increases the effect. Armies have
been put to rout by a shout. The king of Prussia in the seven
years' war, won a battle by the sound of artillery without ball.
Individuals have been thrown into convulsions by a sudden
fright from a shout. The infant in the womb of a pregnant
woman has been impressed with a physical effect upon the
body, and even upon the mind, by a fright. Mary, queen of
Scots, from the assassination of Kizzio, communicated to her
offspring the impression of fear at the sight of a drawn sword.
Peter the Great of Russia had a dread of embarking on water
from the same cause. Shall we wonder then that death is occa-
sioned to the embryo, in the womb of a pregnant woman, by a
sudden fright ? If, in this indictment, it had been stated, that
the woman was pregnant with a living child, it might have
been homicide. But she is stated to have miscarried, which is
the parting with a child in the course of gestation. Will not
the act of the individual maliciously occasioning this, constitute
a misdemeanor ? A sudden fright even by an entry without
noise, presenting the appearance of a spectre, might occasion
266 HUGH H. BRACKENRIDGE.
this, even though in playful frolic ; yet after such effect, would
not the law impute malice ?
3. The indictment suppoeted on the ground of MALicioas
MISCHIEF.
No person has a right to trifle in that manner to the injury
of another. But in this case why not a civil action ? Because
the woman might have been alone, and we have a right to infer
that she was alone, because that would be a situation most like-
ly to accomplish the purpose, the alarming by a fright. If
alone, what other testimony but that of the woman could be
had to substantiate the injury? From the necessity of the case
she must be a witness, and that could only be in the shape of a
prosecution by indictment. But alone or not alone, the offense
laid is that of a malicious mischief, which is indictable, and the
jury have found the outrage to have been intentional, and ma-
liciously committed. I can have no doubt, therefore, but that
it amounts to a misdemeanor, and is prosecutable by indict-
ment.
Why is it that a malicious mischief is indictable, but be-
cause it carries with it the mala mens, which is of the essence
of a crime ? The perpetrator may be regarded in some measure
as hostis humani generis, and regardless of social duty. It re-
quires that his conduct should be considered in a light of in-
famy, in a degree a malefactor, and be stigmatized as such,
rather than as a mere wrong-doer in trespass, and answerable
only in damages. This is the real policy, and the principle at
the bottom of the distinction.
Judgment reversed.
JOHN MARSHALL.
ON THE POWEES OF THE STATES AND THE
FEDERAL GOVERNMENT.
In the Supreme Coitrt of the United States at Wash-
ington, D, C.J Febeuaet Term, 1819.
[McCulloch V. Maryland, 4 Wheat., 400.]
Analysts of Opinion of Chief Justice Marshall.
1. Power of Congress to incorporate a bank.
». The constitution emanates from the peo-
ple, not from the States.
3. The gOTernment, though limited in its
action, supreme within its sphere.
4. The constitution cannot enumerate the
various modes of executing delegated
powers.
5. Where an act or duty is authorized, gov-
ernment may select the means of per-
formance.
6. Nature of the power to create a corpora-
tion.
7. Right to employ the necessary means
to execute delegated powers, express-
ly conferred.
8. Power of Congress to pass necessary
laws. — Word "necessary" construed.
9. Enumeration of certain powers which
exist by implication only.
10. Application of the maxim noscitur a
saciis,
IT. Where the end is within the scope of the-
constitution, all appropriate means to
enforce it are constitutional.
12. The government may create a bank if
required for its fiscal operations, with
power to create branches.
13. How far Congress may restrain a State
from the exercise of the taxing power.
14. Nature and extent of the taxing power
in the States.
15. No State can tax, the means employed
by the federal government for the ex-
ecution of its powers.
16. The power to tax involves the power to
destroy, which, if wielded by a differ-
ent hand, is inconsistent with the
power to create.
17. Argument of the "Federalist" on the
subject of taxation.
John Maeshall must be regarded in many respects as one of the most
remarkable and extraordinary figures in American history. To the genius
of such men as Marshall is chiefly due the success of American institutions.
The scope of his abilities and the merit of his achievements can only be ap-
preciated in view of his scanty opportunities and the varied character and
nature of his public services. As soldier, statesman, diplomatist, lawyer,
and author, he has won honor and distinction, but his fame rests chiefly
upon his reputation as the foremost judge and law-giver of modem times.
To Marshall and Mansfield will be accorded, by common consent, the first
place in the juridical history of the Anglo-Saxon race. The figure of the
former in early life upon the battlefields of the Kevolution, creates a strong
[267]
268 JOHN MARSHALL.
contrast with the bent and aged personage at Washington, occupying the
highest judicial position in the land. When we recall Marshall the soldier,
in active service at Brandywine and Germantown, Monmouth and Stony
Point, — a tall slender figure, clad in a green hunting shirt with the words
"liberty or death" wrought in white letters across the bosom, a black hat
mounted with a buck's tail for a cockade, a belt bearing tomahawk and
soalping-knife about the waist — the "minute man" of the Revolution will
not be recognized in the venerable magistrate with wrinkled face and black
eyes, dressed in sombre robes, the central figure upon the bench of the
Supreme Court of the United States.
Marshall received his appointment as chief justice from John Adams, the
second President of the United States, and continued in the discharge of the
duties of his great office till the time of his death, in July, 1835, a period of
thirty-five years. In the high place which he occupied the value of his
services in construing the framework of a new government cannot be over-
estimated. The armies of the Revolution succeeded in severing the colonies
from the mother country, but when this task was accomplished there re-
mained a work of even greater magnitude — to frame for those colonies their
constitution and laws. To John Marshall more than to any other one man
the American people are indebted for the judicial construction of that con-
stitution. The force of his reasoning and the vigor of his understanding
have never been surpassed.
As a specimen of Marshall's judicial ability and mental powers, his opin-
ion in McCulloch «. The State of Maryland has been selected.
Like all the pioneer cases in the Supreme Coiirt of the United States, the
questions involved are of the highest and most vital interest. The jealousy
between the States and the federal government which marked the early period
of our history, renders the discussion specially notable. There seemed to
be a growing opinion that the powers conferred upon Congress by the consti-
tution clashed with the powers which necessarily existed in the State govern-
ments. Marshall, by calm reasoning and the convincing power of his logic,
demonstrates that such a notion is erroneous. That the sovereign powers
lodged in the States do not conflict with the powers delegated by the consti-
tution to the general government, but that both are supreme in their respec-
tive spheres, and together form a harmonious and beautiful system. The
following are the facts of the case:
In 1816 the Bank of the United States was incorporated under an Act of
Congress passed on the 10th of April in that year. On the 11th of February,
1818, the legislature of the State of Maryland passed an Act entitled "An
Act to impose a tax on all banks or branches thereof, in the State of Mary-
land, chartered by the legislature." It provided that a bank not chartered
by the State or which established a branch within the State, should issue its
notes upon stamped paper, of a particular denomination, to be furnished by
the State, unless such foreign bank should pay $15,000 annually in advance
for the use of the State. A penalty of $500 for every violation of the Act
was imposed, to be recovered by indictment or an action of debt; one-half
to be paid to the informer and one-half to the use of the State.
Under this Act, John James, as well for himself as for the State of Mary-
land, brought an action of debt against James William McCulloch, cashier
Mcculloch v. Maryland. 269
of the Bank of the United States, which had established a branch at the
city of Baltimore. Plaintiff claimed that this branch bank, which vras not
chartered by the laws of Maryland, was within the Act of 1818, and having
failed to comply with its provisions, had incurred the forfeiture therein
provided. It was a controversy between the State of Maryland and the
general government; the former claiming, first, that the defendant's charter
was unconstitutional and void, since there was no power in the constitution
which authorized its creation; and second, that the right of a State to tax
property vrtthin its borders was an exercise of sovereign power which had
never been delegated to the general government, and in the exercise of which
its laws were supreme.
The answer to the first proposition was that power was delegated to lay
and collect taxes; borrow money, and regulate commerce; and authority was
given to make all laws necessary and proper to carry these powers into exe-
cution, and since the bank was a simple means of executing a specific power,
its charter was constitutional. Without denying the truth of the second
proposition, the court held that it had no application, because, while all sub-
jects over which the sovereign power of a State extends are objects of taxa-
tion, those over which it does not extend are, upon the soundest principles,
exempt from taxation. A State could only tax that which existed by its own
authority, but such power did not extend to those means employed by Con-
gress to carry into execution powers conferred on that body by the people of
the United States. And then followed the unanswerable argiunent that the
power to tax involved the power to destroy; and if the State could destroy
one branch of the government, they might in the same way defeat all, and
thus destroy the government Itself.
The able and learned discussion of the questions involved was conducted
at the bar by the Attorney-General (William Wirt), Daniel Webster and Wil-
liam Pinkney for the government, and Luther Martin, Joseph Hopkinson
and General Walter Jones, for the State of Maryland.
MAESHALL, C. J. In the case now to be determined, the
defendant, a sovereign State, denies the obligation of a law en-
acted by the legislature of the Union, and the plaintiff, on his
part, contests the validity of an Act which has been passed by
the legislature of that State. The constitution of our country,
in its most interesting and vital parts, is to be considered ; the
conflicting powers of the government of the Union and of its
members, as marked in that constitution, are to be discussed ;
and an opinion given, which may essentially influence the great
operations of the government. No tribunal can approach such
a question without a deep sense of its importance, and of the
awful responsibility involved in its decision. But it must be
decided peacefully, or remain a source of hostile legislation,
perhaps hostility of a^ still more serious nature; and if it is to
270 JOHN MARSHALL.
be so decided, by this tribunal, alone can the decision be made.
On the Supreme Court of the United States has the constitu-
tion of our country devolved this important duty.
1. Power of Oongeess to incoepoeate a bank.
The first question made in the cause is, has Congress power
to incorporate a bank ?
It has been truly said, that this can scarcely be considered
as an open question, entirely unprejudiced by the former pro-
ceedings of the nation respecting it. The principle now con-
tested was introduced at a very early period of our history, has
been recognized by many successive legislatures, and has been
acted upon by the judicial department, in cases of peculiar
delicacy, as a law of undoubted obligation.
It will not be denied that a bold and daring usurpation
might be resisted, after an acquiescence still longer and more
complete than this. But it is conceived that a doubtful ques-
tion, one on which human reason may pause, and the human
judgment be suspended, is the decision of which the great prin-
ciples of liberty are not concerned, but the respective powers
of those who are equally the representatives of the people, are
to be adjusted ; if not put at rest by the practice of the govern-
ment, ought to receive a considerable impression from that
practice. An exposition of the constitution, deliberately estab-
lished by legislative acts, on the faith of which an immense
property has been advanced, ought not to be lightly disregarded.
The power now contested was exercised by the first Con-
gress elected under the present constitution. The biU for in-
corporating the Bank of the United States did not steal upon
an unsuspecting legislature, and pass unobserved. Its principle
was completely understood, and was opposed vrith equal zeal
and ability. After being resisted, first in the fair and opened
field of debate, and afterwards in the executive cabinet, \vitli as
much perservering talent as any measure has ever experienced,
and being supported by arguments which convinced minds as
pure and intelligent as this country can boast, it became a law.
The original act was permitted to expire ; but a short experi-
ence of the embarrassments to which the refusal to revive it
exposed the government, convinced those who were most preju-
MoCULLOCH V. MARYLAND. 271
diced against tlie measure of its necessity, and induced the pas-
sage of tiie present law. It would require no ordinary share of
intrepidity to assert that a measure adopted under these circum-
stances was a bold and plain usurpation, to which the constitu-
tion gave no countenance.
These observations belong to the cause ; but they are not
made under the impression that, were the question entirely
new, the law would be found irreconcilable with the constitu-
tion.
2. The constttdtion emanates feom the people, not feom
THE States.
In discussing this question, the counsel for the State of
Maryland have deemed it of some importance, in the construc-
tion of the constitution, to consider that instrument not as
emanating from the people, but as the act of sovereign and in-
dependent States. The powers of the general government, it
has been said, are delegated by the States, who alone are truly
sovereign ; and must be exercised in subordination to the
States, who alone possess supreme dominion.
It would be difficult to sustain this proposition. The con-
vention which framed the constitution was indeed elected by
the State legislatures. But the instrument, when it came from
their hands, was a mere proposal, without obligation or preten-
sions to it. It was reported to the then existing Congress of
the United States, with a request that it might " be submitted
to a Convention of Delegates, chosen in each State by the peo-
ple thereof, under the recommendation of its legislature, for
their assent and ratification." This mode of proceeding was
adopted; and by the convention, by Congress, and by the
State legislatures, the instrument was submitted to the people.
They acted upon it in the only manner in which they can act
safely, effectively, and wisely, on such a subject, by assembling
in convention. It is true, they assembled in their severaL
States — and where else should they have assembled ? No po-
litical dreamer was ever wild enough to think of breaking down
the lines which separate the States, and of compounding the
American people into one common mass. Of consequence
272 JOHN MARSHALL.
when they act, they act in their States. But the measures they
adopt do not, on that account, cease to be the measures of the
people themselves, or become the measures of the State gov-
ernments.
From these conventions the constitution derives its whole
authority. The government proceeds directly from the people ;
is " ordained and established " in the name of the people ; and
is declared to be ordained, " in order to form a more perfect
union, establish justice, insure domestic tranquillity, and secure
the blessings of Kberty to themselves and to their posterity."
The assent of the States, in their sovereign capacity, is implied
in calling a convention, and t^us submitting that instrument to
the people. But the people were at perfect libertyto accept or
reject it ; and their act was final. It required not the affirm-
ance, and could not be negatived, by the State governments.
The constitution, when thus adopted, was of complete obliga-
tion, and bound the State sovereignties. ^
It has been said, that the people had already surrendered all
their powers to the State sovereignties, and had nothing more
to give. But, surely, the question whether they may resume
and modify the powers granted to government does not remain
to be settled in this country. Much more might the legitimacy
of the general government be doubted, had it been created by
the States. The powers delegated to the State sovereignties
were to be exercised by themselves, not by a distinct and inde-
pendent sovereignty, created by themselves. To the formation
of a league, such as was the confederation, the State sovereign-
ties were certainly competent. But when, " in order to form a
more perfect union," it was deemed necessary to change this
alliance into an effective government, possessing great and sov-
ereign powers, and acting directly on the people, the necessity
of referring it to the people, and of deriving its powers directly
from them, was felt and acknowledged by all.
The government of the Union, then (whatever may be the
influence of this fact on the case), is, emphatically and truly, a
government of the people. In form and in substance it ema-
nates from them. Its powers are granted by them, and are to
be exercised directly on them, and for their benefit.
MoOULLOCH V. MARYLAND. 273
3. The GOTEiasrMENT, though limited in itb action, supeeme
WITHIN ITS SPHERE.
This government is acknowledged by all to be one of enu-
merated powers. The principle, that it can exercise only the
powers granted to it, would seem too apparent to have required
to be enforced by all those arguments which its enlightened
friends, while it was depending before the people, found it
necessary to urge. That principle is now universally admitted.
But the question respecting the extent of the powers actually
granted, is perpetually arising, and will probably continue to
arisCj as long as our system shall exist.
In discussiag these questions, the conflicting powers of the
general and State governments must be brought into view, and
the supremacy of their respective laws, when they are in oppo-
sition, must be settled.
If any one proposition could command the imiversal assent
of mankind, we might expect it would be this : that the gov-
ernment of the Union, though limited in its powers, is supreme
within its sphere of action. This would seem to result neces-
sarily from its nature. It is the. government of all ; its powers
are delegated by all ; it represents all, and acts for all. Though
any one State may be willing to control its operations, no State
is willing to allow others to control them. The nation, on those
subjects on which it can act, must necessarily bind its component
parts. But this question is not left to mere reason : the people
have, in express terms, decided it, by saying, "this constitution,
and the laws of the United States, which shall be made in pur-
suance thereof," "shall be the supreme law of the land," and
by requiring that the members of the State legislatures, and the
officers of the executive and judicial departments of the States,
shall take the oath of fidelity to it.
The government of the United States, then, though limited
in its powers, is supreme ; and its laws, when made in pursu-
ance of the constitution, form the supreme law of the land,
" any thing in the constitution or laws of any State to the con-
trary notwithstandiag."
18
274 JOHN MARSHALL.
4. The constitution cannot enumekate the vaeious modes
of executing delegated p0web8.
Among the enumerated powers, we do not find that of es-
tablishing a bank or creating a corporation. But there is no
phrase in the instrument which, like the articles of conf ederar
tion, excludes incidental or implied powers ; and which requires
that every thing granted shall be expressly and minutely de-
scribed. Even the 10th amendment, w'hich was framed for the
purpose of quieting the excessive jealousies which had been ex-
cited, omits the word " expressly," and declares only that the
powers " not delegated to the United States, nor prohibited to
the States, are reserved to the States or to the people ; " thus
leaving the question, whether the particular power which may
become the subject of contest has been delegated to the one
government, or prohibited to the other, to depend on a fair
construction of the whole instrument. The men who drew and
adopted this amendment had experienced the embarrassments
resulting from the insertion of this word in the articles of con-
federation, and probably omitted it to avoid those embarrass-
ments. A constitution, to contain an accurate detail of all the
subdivisions of which its great powers wiU admit, and of all
the means by which they may be carried into execution, would
partake of the prolixity of a legal code, and could scarcely be
embraced by the human mind. It would probably never be
understood by the public. Its nature, therefore, requires that
only its great outlines should be marked, its important objects
designated, and the minor ingredients which compose those ob-
jects be deduced from the nature of the objects themselves.
That this idea was entertained by the framers of the American
constitution, is not only to be inferred from the nature of the
instrument, but from the language. Why else were some of
the limitations, found in the ninth section of the first article,
introduced? It is also, in some degree, warranted by their
having omitted to use any restrictive term which might prevent
its receiving a fair and just interpretation. In considering this
question, then, we must never forget, that it is a constitution
we are expounding.
Although, among the enumerated powers of government,
we do not find the word " bank " or " incorporation," we find
MoCULLOCH V, MARYLAND. 275
the great powers to lay and collect taxes ; to borrow money ; to
regulate commerce ; to declare and conduct a war ; and to raise
and support armies and navies. The sword and the purse, all
the external relations, and no inconsiderable portion of the in-
dustry of the nation, are intrusted to its government. It can
never be pretended that these vast powers draw after them
others of inferior importance, merely because they are inferior.
Such an idea can never be advanced. But it may with great
reason be contended, that a government, intrusted with such
ample powers, on the due execution of which the happiness and
prosperity of the nation so vitally depends, must also be in-
trusted with ample means for their execution. The power
being given, it is the interest of the nation to facilitate its exe-
cution. It can never be their interest, and cannot be presumed
to have been their intention, to clog and embarrass its execu-
tion by withholding the most appropriate means. Throughout
thia vast republic, from the St. Croix to the Gulf of Mexico,
from the Atlantic to the Pacific, revenue is to be collected and
expended, armies are to be marched and supported. The exi-
gencies of the nation may require that the treasure raised in the
north should be transported to the south, that raised in the east
conveyed to the west, or that this order should be reversed. Is
that construction of the constitution to be preferred, which
would render these operations difficult, hazardous, and expen-
sive ? Can we adopt that construction (unless the words impe-
riously require it), which would impute to the framers of that
instrument, when granting these powers for the public good,
the intention of impeding their exercise by withholding a choice
of means ? If, indeed, such be the mandate of the constitution,
we have only to obey ; but that instrument does not profess to
enumerate the means by which the powers it confers may be
executed ; nor does it prohibit the creation of a corporation, if
the existence of such a being be essential to the beneficial exer-
cise of those powers. It is, then, the subject of fair inquiry,
how far such means may be employed ?
5. "Wheee ait act or duty is authoeized, goveenment mat
select the means of perpoumanoe.
It is not denied, that the powers given to the government
imply the ordinary means of execution. That, for example, of
276 JOHN MARSHALL.
raising revenue, and applying it to national purposes, is admitted
to imply the power of conveying money from place to place, as
exigencies of the nation may require, and of employing the
usual means of conveyance. But it is denied that the govern-
ment has its choice of means ; or, that it may employ the most
convenient means, if, to employ them, it be necessary to erect a
corporation.
On what foundation does this argument rest? On this
alone : The power of creating a corporation, is one appertain-
ing to sovereignty, and is not expressly conferred on Congress.
This is true. But all legislative powers appertain to sovereign-
ty. The original power of giving the law on any subject what-
ever, is a sovereign power ; and if the government of the
Union is restrained from creating a corporation, as a means for
performing its functions, on the single reason that the creation
of a corporation is an act of sovereignty ; if the sufficiency of
this reason be acknowledged, there would be some difficulty in
sustaining the authority of Congress to pass other laws for the
accomplishment of the same objects.
The government which has a right to do an act, and has im-
posed on it the duty of performing that act, must, according to
the dictates of reason, be allowed to select the means ; and
those who contend that it may not select any appropriate
means, that one particular mode of effecting the object is ex-
cepted, take upon themselves the burden of establishing that
exception.
6. Natuee of the power to create a coepoeation.
The creation of a corporation, it is said, appertains to sover-
eignty. This is admitted. But to what portion of sovereignty
does it appertain ? Does it belong to one more than to another?
In America, the powers of sovereignty are divided between the
government of the Union and those of the States. They are
each sovereign, with respect to the objects committed to it, and
neither sovereign with respect to the object committed to the
other. We cannot comprehend that train of reasoning which
would maintain, that the extent of power granted by the people
is to be ascertained, not by the nature and terms of the grant,
but by its date. Some State constitutions were formed hefore.
MoCULLOCH V. MARYLAND 277
some since that of tlie United States. We cannot believe that
their relation to each other is in any degree dependent upon
this circumstance. Their respective powers must, we think, be
precisely the same as if they had been formed at the same time.
Had they been formed at the same time, and had the people
conferred on the general government the power contained in
the constitution, and on the States the whole residuum of
power, would it have been asserted that the government of the
Union was not sovereign with respect to those objects which
were intrusted to it, in relation to which its laws were declared
to be supreme ? If this could not have been asserted, we can-
not well comprehend the process of reasoning which maintains
that a power appertaining to sovereignty cannot be connected
with that vast portion of it which is granted to the general gov-
ernment, so far as it is calculated to subserve the legitimate ob-
jects of that government. The power of creating a corpora^
tion, though appertaining to sovereignty, is not, like the power
of making war, or levying taxes, or of regulating commerce, a
great substantive and independent power, which cannot be im-
plied as incidental to other powers, or used as a means of exe-
cuting them. It is never the end for which other powers are
exercised, but a means by which other objects are accomplished.
!No contributions are made to charity for the sake of an incor-
poration, but a corporation is created to administer the charity ;
no seminary of learning is instituted in order to be incorpo-
rated, but the corporate character is conferred to subserve the
purposes of education. No city was ever built with the sole
object of being incorporated, but is incorporated as affording
the best means of being well governed. The power of creat-
ing a corporation is never used for its own sake, but for the
purpose of effecting something else. No sufficient reason is,
therefore, perceived, why it may not pass as incidental to those
powers which are expressly given, if it be a direct mode of ex-
ecuting them.
7. Eight to employ the necessaet means to execute del-
egated POWERS, EXPEESSLT CONI'EKEED.
But the constitution of the United States has not left the
right of Congress to employ the necessary means, for the exe-
278 JOHN MARSH ATX.
cution of the powers conferred on the government, to general
reasoning. To its enumeration of powers is added that of
making " all laws which shall be necessary and proper, for car-
rying into execution the foregoing powers, and all other powers
vested by this constitution, in the government of the United
States, or in any department thereof."
The counsel for the State of Maryland have urged various
arguments to prove that this clause, though in terms a grant of
power, is not so in effect ; but is really restrictive of the gen-
eral right, which might otherwise be implied, of selecting
means for executing the enumerated powers.
In support of this proposition, they have found it necessary
to contend, that this clause was inserted for the purpose of con-
ferring on Congress the power of making laws. That, without
it, doubts might be entertained, whether Congress could exer-
cise its powers in the form of legislation.
But could this be the object for which it was inserted ? A
government is created by the people, having legislative, execu-
tive, and judicial powers. Its legislative powers are vested in
a Congress, which is to consist of a Senate and House of Eep-
resentatives. Each house may determine the rule of its pro-
ceedings ; and it is declared that every biU which shall have
passed both houses, shall, before it becomes a law, be presented
to the President of the United States. The 7th section de-
scribes the course of proceedings, by which a biU shall become
a law ; and, then, the 8th section enumerates the powers of
Congress. Could it be necessary to say, that a legislature
should exercise legislative powers in the shape of legislation ?
After allowing each house to prescribe its own course of pro-
ceeding, after describing the manner in which a biU should be-
come a law, would it have entered into the mind of a single
member of the convention, that an express power to make laws
was necessary to enable the legislature to make them ? That a
legislature, endowed with legislative powers, can legislate, is a
proposition too self-evident to have been questioned.
But the argument on which most reliance is placed, is
drawn from the peculiar language of this clause. Congress is
not empowered by it to make all laws, which may have relation
to the powers conferred on the government, but such only as
Mcculloch v. marylaot). 279
may be " necessary cmd proper " for carrying them into execu-
tion. The word " necessary " is considered as controlling the
whole sentence, and as limiting the right to pass laws for the
execution of the granted powers, to such as are indispensable,
and without which the power would be nugatory. That it ex-
cludes the choice of means, and leaves to Congress, in each case,
that only which is most direct and simple. »
8. PowBE OF Congress to pass neoessart laws. — ^Woed
" JSTECESSAET " OONBTETJED,
It is true, that this is the sense in which the word " neces-
sary" is always used? Does it always import an absolute
physical necessity, so strong, that one thing, to which another
may be termed necessary, cannot exist without that other?
"We think it does not. If reference be had to its use, in the
common affairs of the world, or in approved authors, we find
that it frequently imports no more than that one thing is
convenient, or useful, or essential to another. To employ the
means necessary to an end, is generally understood as employ-
ing any means calculated to produce the end, and not as being
confined to those single means, without which the end would
be entirely unattainable. Such is the character of human lan-
guage, that no word conveys to the mind, in all situations, one
single definite idea ; and nothing is more common than to use
words in a figurative sense. Almost all compositions contain
words which, taken in their rigorous sense, would convey a
meaning different from that which is obviously intended. It
is essential to just construction, that many words which import
something excessive, should be imderstood in a more mitigated
sense — ^in that sense which common usage justifies. The word
" necessary" is of this description. It has not a fixed character
peculiar to itself. It admits of all degrees of comparison ; and
is, often connected with other words, which increase or dimin-
ish the impression the mind receives of the urgency it imports.
A thing may be necessary, very necessary, absolutely or indis-
pensably necessary. To no mind would the same idea be con-
veyed by these several phrases. This comment on the word is
well illustrated by the passage cited at the bar, from the 10th
section of the first article of the constitution. It is, we think,
280 JOHN MARSHALL.
impossible to compare the sentence which prohibits a State
from laying " imposts, or duties on imports or exports, except
what may be absolutely necessary for executing its inspection
laws," with that which authorizes Congress " to make all laws
which shall be necessary and proper for carrying into execu-
tion " the powers of the general government, without feeling a
con-action that the convention xmderstood itself to change ma-
terially the meaning of the word " necessary," by prefixing the
word " absolutely." This word, then, like others, is used in
various senses ; and, in its construction, the subject, the con-
text, the intention of the person using them, are all to be taken
into view.
Let this be done in the case under consideration. The sub-
ject is the execution of those great powers on which the welfare
of a nation essentially depends. It must have been the inten-
tion of those who gave these powers, to insure, as far as human
prudence could insure, their beneficial execution. This could
not be done by confiding the choice of means to such narrow
limits as not to leave it in the power of Congress to adopt any
which might be appropriate, and which were conducive to the
end. This provision is made in a constitution intended to en-
dure for ages to come, and, consequently, to be adapted to the
various 'crises of human affairs. To have prescribed the means
by which government should, in all future time, execute its
powers, would have been to change entirely the character of
the instrument, and give it the properties of a legal code. It
would have been an unwise attempt to provide, by immutable
rules, for exigencies which, if foreseen at all, must have been
seen dimly, and which can be best provided for as they occur.
To have declared that the best means shall not be used, but
those alone without which the power given would be nugatory,
would have been to deprive the legislature of the capacity to
avail itself of experience, to exercise its reason, and to accom-
modate its legislation to circumstances. If we apply this prin-
ciple of construction to any of the powers of the government,
we shall find it so pernicious in its operation that we shall be
compelled to discard it. The powers vested in Congress may
certainly be carried into execution, without preseribiag an oath
of office. The power to exact this security for the faithful per-
MoCULLOCH V. MARYLAND. 281
formance of duty, is not given, nor is it indispensably necessary.
The different departments may be established ; taxes may be
imposed and collected ; armies and navies may be raised and
maintained ; and money may be borrowed, without requiring
an oath of office. It might be argued, with as much plausibil-
ity as other incidental powers have been assailed, that the con-
vention was not unmindful of this subject. The oath which
might be exacted — ^that of fidelity to the constitution — ^is pre-
scribed, and no other can be required. Tet, he would be
charged with insanity who should contend, that the legislature
might not superadd, to the oath directed by the constitution,
such other oath of office as its wisdom might suggest.
9. Entjmeeation of ceetain powers which exist bt impli-
cation ONLY.
So, with respect to the whole penal code of the United
States. Whence arises the power to punish in cases not pre-
scribed by the constitution ? All admit that the government
may, legitimately, punish any violation of its laws ; and yet,
this is not among the enumerated powers of Congress. The
right to enforce the observance of law, by punishing its infrac-
tion, might be denied with the more plausibility, because it is
expressly given in some cases. Congress is empowered "to
provide for the punishmenj; of counterfeiting the securities and
current coin of the United States," and " to define and punish
piracies and felonies committed on the high seas, and offenses
against the law of nations." The several powers of Congress
may exist, in a very imperfect state to be sure, but they may
exist and be carried into execution, although no punishment
should be inflicted in cases where the right to punish is not ex-
pressly given.
Take, for example, the power " to establish post offices and
post roads." This power is executed by the single act of mak-
ing the establishment. But from this has been inferred the
power and duty* of carrying the mail along the post road, from
one post -office to another. And, from this implied power, has
again been inferred the right to punish those who steal letters
from the post office, or rob the mail. It "may be said, with
some plausibility, that the right to carry the mail, and to pun-
282 JOHN MAESHALL.
ish those who rob it, is not indispensably necessary to the estab-
lishment of a post office and post road. This right is indeed
essential to the beneficial exercise of the power, but not indis-
pensably necessary to its existence. So, of the punishment of
the crimes of stealing or falsifying a record or process of a court
of the United States, or of perjury in such court. To punish
these offenses is certainly conducive to the due administration
of justice. But courts may exist, and may decide the causes
brought before them, though such crimes escape punishment.
The baneful influence of this narrow construction on all the
operations of the government, and the absolute impracticability
of maintaining it without rendering the government incompe-
tent to its great objects, might be illustrated by numerous ex-
amples drawn from the constitution, and from our laws. The
good sense of the public has pronounced, without hesitation,
that the power of punishment appertains to sovereignty, and
may be exercised whenever the sovereign has a right to act, as
iQcidental to his constitutional powers. It is a means for car-
rying into execution all sovereign powers, and may be used,
although not iadispfensably necessary. It is a right incidental
to the power, and conducive to its beneficial exercise.
If this limited construction of the word "necessary" must
be abandoned in order to punish, whence is derived the rule
which would reinstate it, when the government would carry its
powers into execution by means not vindictive in their nature ?
If the word " necessary " means '• needful," " requisite," " es-
sential," " conducive to," in order to let in the power of pun-
ishment for the infraction of law ; why is it not equally com-
prehensive when required to authorize the use of means which
facilitate the execution of the powers of government without
the infiiction of punishment ?
10. Application of the wattm NosomrE a socns.
In ascertaining the sense in which the word "necessary " is
used in this clause of the constitution, we may derive some aid
from that with which it is associated. Congress shall have
power " to make all laws which shall be necessary and proper
to carry into execution " the powers of the government. If
the word "necessary" was used in that strict and rigorous
MoCULLOCH V. MARYLAND. 283
sense for wliicli the counsel for the State of Maryland contend,
it would be an extraordinary departure from the usual course
of the human mind, as exhibited in composition, to add a word,
the only possible effect of which is to qualify that strict and
rigorous meaning; to present to the mind the idea of some
choice of means of legislation not straitened and compressed
withia the narrow limits for which gentlemen contend.
But the argument which most conclusively demonstrates
the error of the construction contended for by the counsel for
the State of Maryland, is founded on the intention of the con-
vention, as manifested in the whole clause. To waste time and
argument in proving that, without it. Congress might carry its
powers into execution, would be not much less idle than to hold
a lighted taper to the sun. As little can it be required to
prove, that ia the absence of this clause, Congress would have
some choice of means. That it might employ those which, in
its judgment, would most advantageously effect the object to
be accomplished. That any means adapted to the end, any
means which tended directly to the execution of the constitu-
tional powers of the government, were in themselves constitu-
tional. This clause, as construed by the State of Maryland,
would abridge, and almost annihilate this useful and necessary
right of the legislature to select its means. That this could not
be intended, is, we should think, had it not been already con-
troverted, too apparent for controversy. We think so for the
following reasons :
1st. The clause is placed among the powers of Congress, not
among the limitations on those powers.
2d. Its terms purport to enlarge, not to diminish the powers
vested in the government. It purports to be an additional
power, not a restriction on those already granted. ISTo reason
has been, or can be assigned for thus concealing an intention to
narrow the discretion of the national legislature under words
which purport to enlarge it. The f ramers of the constitution
wished its adoption, and well knew that it would be endangered
by its strength, not by its weakness. Had they been capable of
using language which would convey to the eye one idea, and,
after deep reflection, impress on the mind another, they would
rather have disguised the grant of power, than its liimtation.
284 JOHN MARSHALL.
If, then, their intention had beeii, by this clause, to restrain the
free use of means which might otherwise have been imphed,
that intention would have been inserted in another place, and
would have been expressed in terms resembling these. " In
carrying into execution the foregoing powers, and all others,"
&c., " no laws shall be passed but such as are necessary and
proper." Had the intention been to make this clause restrict-
ive, it would unquestionably have been so in form as well as in
eflEect.
11. "Wheee the end is wrrHiN the scope of the coNSTrruTioii,
ALL APPEOPEIATE MEANS TO ENFOEOE IT ABB CONSTTTUTIONAL.
The result of the most careful and attentive consideration
bestowed upon this clause is, that if it does not enlarge, it can-
not be construed to restrain the powers of Congress, or to im-
pair the right of the legislature to exercise its best judgment in
the selection of measures to carry into execution the constitu-
tional powers of the government. If no other motive for its
insertion can be suggested, a sufficient one is found in the de-
sire to remove all doubts respecting the right to legislate on
that vast mass of incidental powers which must be involved in
the constitution, if that instrument be not a splendid bauble.
We admit, as all must admit, that the powers of the gov-
ernment are limited, and that its limits are not to be transcend-
ed. But we think the sound construction of the constitution
must allow to the national legislature that discretion, with re-
spect to the means by which the powers it confers are to be
carried into execution, which will enable that body to perform
the high duties assigned to it, in the manner most beneficial to
the people. Let the end be legitimate, let it be within the scope
of the constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the constitution, are consti-
tutional.
That a corporation must be considered as a means not less
usual, not of higher dignity, not more requiring a particular
specification than other means, has been sufficiently proved.
If we look to the origin of corporations, to the manner in which
they have been framed in that government from which we have
McCUlLOCH V. MA.RTLAND. 285
derived most of our legal principles and ideas, or to the uses to
wMcli they have been applied, we find no reason to suppose
that a constitution, omitting, and wisely omitting, to enumerate
all the means for carryiag into execution the great powers
vested in government, ought to have specified this. Had it
been intended to grant this power as one which should be dis-
tinct and independent, to be exercised in any case whatever, it
would have found a place among the enumerated powers of the
government. But being considered merely as a means, to be
employed only for the purpose of carrying into execution the
given powers, there could be no motive for particularly men-
tioning it.
The propriety of this remark would seem to be generally
acknowledged by the universal acquiescence in the construction
which has been uniformly put on the third section of the 4th
article of the constitution. The power to " make aU needful
rules and regulations respecting the territory or other property
belonging to the United States," is not more comprehensive
than the power " to make all laws which shall be necessary and
proper for carrying into execution " the powers of the govern-
ment. Tet all admit the constitutionality of a territorial gov-
ernment, which is a corporate body.
12. The qoveeitment mat create a bank w required for
ITS FISCAL operations, WITH POWER TO CREATE BRANCHES.
If a corporation may be employed iudiscriminately with
other means to carry into execution the powers of the govern-
ment, no particular reason can be assigned for excluding the
use of a bank, if required for its fiscal operations. To use one
must be within the discretion of Congress, if it be an appro-
priate mode of executing the powers of government. That it
is a convenient, a useful, and essential instrument in the prose-
cution of its fiscal operations, is not now a subject of contro-
versy. AU those who have been concerned in the administra-
tion of our finances, have concurred iu representing its impor-
tance and necessity; and so strongly have they been felt, that
statesmen of the first class, whose previous opinions against it
had been confirmed by every circumstance which can fix the
human judgment, have yielded those opinions to the exigencies
286 JOHN MARSHALL.
of the nation. Under the confederation, Congress, justifying
the measure by its necessity, transcended perhaps its powers to
obtain the advantage of a bank ; and our own legislation attests
the universal conviction of the utility of this measure. The
time has passed away when it can be necessary to enter into
any discussion in order to prove the importance of this instru-
ment, as a means to effect the legitimate objects of the govern-
ment.
But, were its necessity less apparent, none can deny its being
an appropriate measure ; and if it is, the degree of its necessity,
as has been very justly observed, is to be discussed in another
place. Should Congress, in the execution of its powers, adopt
measures which are prohibited by the constitution ; or should
Congress, under the pretext of executing its powers, pass laws
for the accomplishment of objects not intrusted to the govern-
ment; it would become the painful duty of this tribunal,
should a case requiring such a decision come before it, to say
that such an act was not the law of the land. But where the
law is not prohibited, and is reaUy calculated to effect any of
the objects intrusted to the government, to undertake here to
inquire into the degree of its necessity, would be to pass the
line which circumscribes the judicial department, and to tread
on legislative ground. This court disclaims all pretensions to
euch a power. •
After this declaration, it can scarcely be necessary to say,
that the existence of State banks can have no possible influence
on the question. No trace is to be found in the constitution of
an intention to create a dependence of the government of the
Union on those of the States, for the execution of the great
powers assigned to it. Its means are adequate to its ends ; and
on those means alone was it expected to rely for the accom-
plishment of its ends. To impose on it the necessity of re-
sorting to means which it cannot control, which another gov-
ernment may furnish or withhold, would render its course
precarious, the result of its measures uncertain, and create a
dependence on other governments, which might disappoint its
most important designs, and is incompatible with the language
of the constitution. But were it otherwise, the choice of •
McCDlLOCH V. MARYLAND. 287
means implies a right to choose a national bank in preference
to State banks, and Congress alone can make the election.
After the most deliberate consideration, it is the unanimous
ajid decided opinion of this court, that the act to incorporate
the Bank of the United States is a law made in pursuance of
the constitution, and is a part of the supreme law of the land.
The branches, proceeding from the same stock, and being
conducive to the complete accomplishment of the object, are
equally constitutional. It would have been unwise to locate
them in the charter, and it would be unnecessarily inconvenient
to employ the legislative power in making those subordinate
arrangements. The great duties of the bank are prescribed;
those duties require branches ; and the bank itseK may, we
think, be safely trusted with the selection of places where those
branches shall be fixed ; reserving always to the government
the right to require that a branch shall be located where it may
be deemed necessary.
J3. How FAE Congress mat eesteain a State feom the
EXERCISE of the TAXING POWER.
It being the opinion of the court, that the act incorporating
the bank is constitutional ; and that the power of establishing
a branch in the State of Maryland might be properly exercised
by the bank itself, we proceed to inquire —
2. Whether the State of Maryland may, without violating
the constitution, tax that branch ?
That the power of taxation is one of vital importance ; that
it is retained by the States ; that it is not abridged by the grant
of a similar power to the government of the Union ; that it is
to be concurrently exercised by the two governments : are
truths which have never been denied. But, such is the para-
mount character of the constitution, that its capacity to with-
draw any subject from the action of even this power, is ad-
mitted. The States are expressly forbidden to lay any duties
on imports or exports, except what may be absolutely necessary
for executing their inspection laws. If the obligation of this
prohibition must be conceded ; if it may restrain a State from
the exercise of its taxing power on imports and exports ; the
same paramount character would seem to restrain, as it certain-
288 JOHN MARSHALL.
ly may restrain, a State from such other exercise of this power,
as is in its nature incompatible with, and repugnant to, the
constitutional laws of the Union. A law, absolutely repugnant
to another, as entirely repeals that other as if express terms of
repeal were used.
On this ground the counsel for the bank place its claim to
be exempted from the power of a State to tax its -operations.
There is no express provision for the case, but the claim has
been sustained on a principle which so entirely pervades the
constitution, is so intermixed with the materials which com-
pose it, so interwoven with its web, so blended with its texture,
as to be incapable of being separated from it, without rending
it into shreds.
This great principle is, that the constitution and the laws
made in pursuance thereof are supreme ; that they control the
constitution and laws of the respective States, and cannot be
controlled by them. From this, which may be almost termed
an axiom, other propositions are deduced as corollaries, on the
truth or error of which, and on their application to this case,
the cause has been supposed to depend. These are, 1st. That
a power to create implies a power to preserve. 2d. That a
power to destroy, if wielded by a diEEerent hand, is hostile to,
and incompatible with, these powers to create and to preserve.
3d. That where this repugnancy exists, that authority which is
supreme must control, not yield to that over which it is su-
preme.
These propositions, as abstract truths, would, perhaps, never
be controverted. Their application to this case, however, has
been denied ; and, both in maintaining the affirmative aild the
negative, a splendor of eloquence, and strength of argument,
seldom, if ever, surpassed, have been displayed.
The power of Congress to create, and of course to continue,
the bank, was the subject of the preceding part of this opinion ;
and is no longer to be considered as questionable.
That the power of taxing it by the States may be exercised
so as to destroy it, is too obvious to be denied. But taxation
is said to be an absolute power, which acknowledges no other
limits than those expressly prescribed in the constitution, and
like sovereign power of every other description, is trusted to
MoCULLOCH V. MAEYLAND. 289
the discretion of those who use it. But the very terms of this
argument admit that the sovereignty of the State, in the article
of -taxation itself, is subordinate to, and may be controlled by
the constitution of the United States. How far it has been
controlled by that instrument must be a question of construc-
tion. In making this construction, no principle not declared,
can be admissible, which would defeat the legitimate operations
of a supreme government. It is of the very essence of suprem-
acy to remove all obstacles to its action within its own sphere,
and CO to modify every power vested in subordinate govern-
ment, as to exempt its own operations from their own influence.
This effect need not be stated in terms. It is so involved in
the declaration of supremacy, so necessarily implied in it, that
the expression of it could not make it more certain. We
must, therefore, keep it in view while construing the consti-
tution.
The argument on the part of the State of Maryland, is, not
that the States may directly resist a law of Congress, but that
they may exercise their acknowledged powers upon it, and that
the constitution leaves them this right in the confidence that
they will not abuse it.
14. Natuee aotj extent of the taxing powek of the States.
Before we proceed to examine this argument, and to subject
it to the test of the constitution, we must be permitted to be-
stow a few considerations on the nature and extent of this
original right of taxation, which is acknowledged to remain
with the States. It is admitted that the power of taxing the
people and their property is essential to the very existence of
government, and may be legitimately exercised on the objects
to which it is applicable, to the utmost extent to which the
government may choose to carry it. The only security against
the abuse of this power, is found in the structure of the gov-
ernment itself. In imposing a tax the legislature acts upon its
constituents. . This i% in general a sufficient security against er-
roneous and oppressive taxation.
The people of a State, therefore, give to their government
a right of taxing themselves and their property, and as the ex-
igencies of government cannot be limited, they prescribe no
19
290 JOHN MARSHALL.
limits to the exercise of this right, resting confidently on the
interest of the legislator, and on the influence of the constitu-
ents over their representative, to guard them against its abuse.
But the means employed by the government of the Union have
no such security, nor is the right of a State to tax them sus-
tained by the same theory, Those means are not given by the
people of a particular State, not given by the constituents of
the legislature, which claim the right to tax them, but by the
people of all the States. They are given by all, for the benefit
of all — and upon theory, should be subjected to that govern-
ment only which belongs to all.
It may be objected to this definition, that the power of
taxation is not confined to the people and property of a State.
It may be exercised upon every object brought within its juris-
diction.
This is true. But to what source do we trace this right?
It is obvious that it is an incident of sovereignty, and is co-
extensive with that to which it is an incident. AU subjects
over which the sovereign power of a State extends, are objects
of taxation ; but those over which it does not extend, are, upon
the soundest principles, exempt from taxation. This proposi-
tion may almost be pronounced self-evident.
15. No State can tax the means employed by the fedeeal
GOVERNMENT FOE THE EXECUTION OF IIS POWEES.
The sovereignty of a State extends to every thing which
exists by its own authority, or is introduced by its permission ;
but does it extend to those means which are employed by Con-
gress to carry into execution powers conferred on that body by
the people of the United States ? We think it demonstrable
that it does not. Those powers are not given by the people of
a single State. They are given by the people of the United
States, to a government whose laws, made in pursuance of the
constitution, are declared to be supreme. Consequently, the
people of a single State cannot confer a sovereignty which wiU
extend over them.
If we measure the power of taxation residing in a State, by
the extent of sovereignty which the people of a single State
possess, and can confer on its government, we have an intelli-
MoCULLOCH V. MABTLAND. 291
gible standard, applicable to every case to which the power
may be applied. "We have a principle which leaves the power
of taxing the people and property of a State unimpaired ; which
leaves to a State the command of all its resources, and which
places beyond its reach, all those powers which are conferred
by the people of the tJnited States on the government of the
Union, and all those means which are given for the purpose of
carrying those powers into execution. We have a principle
which is safe for the States, and safe for the Union. We are
relieved, as we ought to be, from clashing sovereignty ; from
interfering powers ; from a repugnancy between a right in one
government to puU down what there is an acknowledged right
in another to build up ; from the incompatibility of a right in
one government to destroy what there is a right in another to
preserve. We are not driven to the perplexing inquiry, so un-
fit for the judicial department, what degree of taxation is the
legitimate use, and what degree may amount to the abuse of
the power. The attempt to use it on the means employed by
the government of the Union, in pursuance of the constitution,
is itself an abuse, because it is the usurpation of a power which
the people of a single State cannot give.
We find, then, on just theory, a total failure of this original
right to tax the means employed by the government of the
Union, for the execution of its powers. The right never ex-
isted, and the question whether it has been surrendered, cannot
arise.
16. The powee to tax htvolves the power to desteot,
which, if wielded by a diffekent hand, is moonsis-
tent with the powee to ceeate.
But, waiving this theory for the present, let us resume the
inquiry whether this power can be exercised by the respective
States, consistently with a fair construction of the constitu-
tion ? *
That the power to tax involves the power to destroy ; that
the power to destroy may defeat and render useless the power
to create ; that there is a plain repugnance, in conferring on
one government a power to control the constitutional measures
of another, which otherj with respect to those very measures, is
292 JOHN MARSHALL.
declared to be supreme over that which exerts the control, are
propositions not to be denied. But all inconsistencies are to
be reconciled by the magic of the word CONFIDENCE.
Taxation, it is said, does not necessarily and unavoidably de-
stroy. To carry it to the excess of destruction would be an
abuse, to presume which, would banish that confidence which
is essential to all government.
But is this a case of confidence ? Would the people of any
one State trust those of another with a power to control the
most insignificant operations of their State government ? "We
know they would not. Why, then, should we suppose that the
people of any one State should be willing to trust those of an-
other with a power to control the operations of a government
to which they have confided their most important and most
valuable interests ? In the legislature of the Union alone, are
all represented. The legislature of the Union alone, therefore,
can be trusted by the people with the power of controlling
measures which concern all, in the confidence that it will not
be abused. This, then, is not a case of confidence, and we
must consider it as it really is.
If we apply the principle for which the State of Maryland
contends, to the constitution generally, we shall find it capable
of changing totally the character of that instrument. We shall
find it capable of arresting all the measures of the government,
and of prostrating it at the foot of the States. The American
people have declared their constitution, and the laws made in
pursuance thereof, to be supreme; but this principle would
transfer the supremacy, in fact, to the States.
If the States may tax one instrument, employed by the
government in the execution of its powers, they may tax any
and every other instrument. They may tax the mail; they
may tax the mint ; they may tax patent rights ; they may tax
the papers of the custom-house ; they may tax judicial process ;
they may tax all the means employed by the government, to an
excess which would defeat all the ends of government. This
was not intended by the American people. They did not de-
sign to make their government dependent on the States.
Gentlemen say they do not claim the right to extend State
taxation to these objects. They limit their pretensions to prop-
MoCULLOCH V. MARYLAND.
293
erty. But on wliat principle is this distinction made ? Those
who make it have furnished no reason for it, and the principle
for which they contend denies it. They contend that the
power of taxation has no other limit than is found in the 10th
section of the first article of the constitution ; that, with respect
to everything else, the power of the States is supreme, and ad-
mits of no control. If this be true, the distinction between
property and other subjects to which the power of taxation is
applicable, is merely arbitrary, and can never be sustained.
This is not aU. If the controlling power of the States be estab-
lished ; if their supremacy as to taxation be acknowledged ;
what is to restrain their exercising this control in any shape
they may please to give it ? Their sovereignty is not confined
to taxation. That is not the only mode in which it might be
displayed. The question is, in truth, a question of supremacy ;
and if the right of the States to tax the means employed by the
general government be conceded, the declaration that the con-
stitution, and the laws made in pursuance thereof, sh^ll be the
supreme law of the land, is empty and unmeaning declamation.
17. Aegument of the "Fedeealist" on the subject of
taxatioit.
In the course of the argument, the " Federalist " has been
quoted ; and the opinions expressed by the authors of that work
have been justly supposed to be entitled to great respect in ex-
poimding the constitution. 'No tribute can be paid to them
which exceeds their merit ; but in applying their opinions to
the cases which may arise in the progress of our government,
a right to judge of their correctness must be retained ; and, to
understand the argument, we must examine the proposition it
maintains, and the objections against which it is directed. The
subject of those numbers, from which passages have been cited,
is the unlimited power of taxation which is vested in the gen-
eral govemmfent. The objection to this unlimited power, which
the argument seeks to remove, is stated with fullness and clear-
ness. It is, " that an indefinite power of taxation in the latter
(the government of the Union) might, and probably would, in
time, deprive the former (the government of the States) of the
means of providing for their own necessities ; and would sub-
ject them entirely to the mercy of the national legislature. As
294 JOHN MARSHALL.
the laws of the Union are to become the supreme law of the
land ; as it is to have power to pass all laws that may be neces-
sary for carrying into execution the authorities with which it is
proposed to vest it ; the national government inight at any time
abolish the taxes imposed for State objects, upon the pretence
of an interference with its own. It might allege a necessity
for doing this, in order to give efficacy to the national reve-
nues ; and thus all the resources of taxation might, by degrees,
become the subjects of federal monopoly, to the entire exclu-
sion and destruction of the State governments."
The objections to the constitution which are noticed in
these numbers, were to the undefined power of the government
to tax, not to the incidental privilege of exempting its own
measures from State taxation. The consequences apprehended
from this undefined power were, that it would absorb all the
objects of taxation, " to the exclusion and destruction of the
State governments." The arguments of the " Federalist " are
intended to prove the fallacy of these apprehensions ; not to
prove that the government was incapable of executing any of
its powers, without exposing the means it employed to the em-
baiTassments of State taxation. Arguments urged against these
objections, and these apprehensions, are to be understood as
relating to the points they mean to prove. Had the authors of
those excellent essays been asked, whether they contended for
that construction of the constitution which would place within
the reach of the States those measures which the government
might adopt for the execution of its powers, no man, who has
read their instructive pages, will hesitate to admit, that their
answer must have been in the negative.
It has also been insisted, that, as the power of taxation in
the general and State governments is acknowledged to be con-
current, every argument which would sustain the right of the
general government to tax banks chartered by the States, will
equally sustain the right of the States to tax banks chartered
by the general government.
But the two cases are not on the same reason. The people
of all the States have created the general government, and have
conferred upon it the general power of taxation. The people
of all the States, and the States themselves, are represented in
Congress, and, by their representatives, exercise this power.
MoCULLOCH V. MARYLA.ND. 295
When they tax the chartered institutions of the States, they
tax their constituents ; and these taxes must be uniform. But,
when a State taxes the operations of the government of the
United States, it acts upon institutions created, not by their
own constituents, but by people over whom they claim no con-
trol. It acts upon the measures of a government created by
others as well as themselves, for the benefit of others in com-
mon with themselves. The difference is that which always ex-
ists, and always must exist, between the action of the whole on
a part, and the action of a part on the whole — ^between the
laws of a government declared to be supreme, and those of a
government which, when in opposition to those laws, is not
supreme.
But if the fuU application of this argument could be admit-
ted, it might bring into question the right of Congress to tax
the State banks, and could not prove the right of the States to
tax the Bank of the United States.
The court has bestowed on this subject its most deliberate
consideration. The result is a conviction that the States have
no power, by taxation or otherwise, to retard, impede, burden,
or in any manner control, the operations of the constitutional
laws enacted by Congress to carry into execution the powers
vested in the general government. This is, we think, the una-
voidable consequence of that supremacy which the constitution
has declared.
We are unanimously of opinion, that the law passed by the
legislature of Maryland, imposing a tax on the Bank of the
United States, is imconstitutional and void.
This opinion does not deprive the States of any resources
which they originally possessed. It does not extend to a tax
paid by the real property of the bank, in common with the
other real property within the State, nor to a tax imposed on
the interest which the citizens of Maryland may hold in this
institution, in common with other property of the same de-
scription throughout the State. But this is a tax on the opera-
tions of the bank, and is, consequently, a tax on the operation
of an instrument employed by the government of the Union to
carry its powers into execution. Such a tax must be uncon-
stitutional.
LORD STOWELL.
ON THE LAW OP BURIAL AND THE USE OF METAL-
Lie COFFINS.
GiLBEET V. Buzzard, Consistoey Court of London,
July, 1821.
[2 Hagg. Con., 333.]
Analysis of Loed Stowell's Opinion.
I. Allegations on the part of the plaintiffs.
.t. Allegations on the part of defendants.
3. Claim for penalties abandoned. — A single
question of law presented.
4. Mode of disposing of the dead among
the ancients.
5. Sir Thomas Browne on inhumation and
burning in early ages.
6. Various modes of burial, and use of cof-
fins among the ancients.
7. Places selected for sepulture in various
countries.
8. Modes of sepulture governed by usage,
rather than by rules of law or religion.
9. Use and disuse of coffins. — Shocking at-
tempt of King Leopold to abolish them.
xo. Useof coffins in England f and materials
employed in constructing them.
II. Fees for coffined and uncoffined funerals.
X2, The right of burial does not necessarily
include the use of a metallic casket.
13. Sentiments which have given rise to a
desire to preserve remains of the dead,
14. The use of iron coffins not unlawful.
15. Burial fee should be regulated by dura^
bility of coffin used.
x6. Comparative durability of iron and wood-
en coffins.
17. Argument that the right of occupancy in
the grave is perpetual, not temporary.
18. The cemetery the common property of
the living, and subject only to tempo-
rary appropriations.
19. In fixing compensation for use of grave,
density of population and scarcity of
land must be considered.
20. Taking of money for interments not con-
trary to the canon law.
21. Rate of compensation to be fixed by the
Ordinary, not by the parishes.
Of "William and Jane Scott, of Sandgate, in Newcastle-upon-Tyne, were
born thirteen children, the names of two of whom, William and John, who
adorned the profession with their talents and learning, are destined to live
forever in the annals of the law. William, the elder, in 1821, rose to the
peerage, bearing the title of Lord Stowell; while his younger brother. John,
in 1799, entered the house of lords, was appointed Chief Justice of the Com-
mon Pleas and Lord Chancellor in 1801, and is known to posterity by his
title of Lord Eldon.
The literary style in which the judgments by these distinguished
brothers are written, presents a marked contrast. The opinions of Eldon are
clothed in language so uncertain and obscure, that his position as to the law of
[296]
GILBERT V. BUZZARD. 297
the case is sometimes difficult to discover, and his judgments have been lilcened
unto " Egyptian mummies, embalmed in a multitude of artfully contrived
folds and wrappers;" while the elegant and graceful diction which distin-
guishes the judgments of Stowell — finished and polished essays, smooth and
perfect almost as poems in prose — have won for him a renown in the realms
of jurisprudence, equal to that attained by Addison and Hawthorne,
Macaulay and De Quincy, in the profession of letters. Stowell was also an
accomplished scholar, and for five years filled the Camden professorship in
the department of ancient history, in the university of Oxford. In this
respect his fame approaches that of Sir William Jones, one of the first schol-
ars of his time. His term of judicial service was very protracted. For
thirty years he was a judge in the high court of admiralty, besides having
served prior to that time in the ecclesiastical tribunals, as judge of the con-
sistory court. The opinions selected indicate the learning and graceful style
of this accomplished man.
The singular controversy which gave Lord Stowell an opportunity to
write his learned paper on the law of burial, gives rise also to some general
observations suggested by the case. The tendency of human nature is to cry
down at the start, every improvement which the ingenuity of a fertile brain
may present to the world, no matter how useful or convenient the invention or
discovery may prove. This fact is confirmed by universal experience. Jonas
Hanway , the man who first carried an umbrella in London, was hooted dt and
stoned in the streets. Gallileo was put in prison by the clergy for believing
that the earth moved round the sun. Robert Fulton was thought to be crazy
when he talked about a steamboat. Morse had to struggle against prejudice
and ridicule before he could get an appropriation for his telegraph; and Ed-
ward Lillie Bridgman, who invented and patented metallic coflSns, had to
petition parliament for relief against the oppression and prejudice of the
clergy, who taxed the life out of his invention.
This litigation will give some faint idea of what Bridgman and his cus-
tomers sufEered when iron coffins were first introduced. Their use seems to
have been suggested in consequence of the insecurity to which the remains of
the dead were subjected, in consequence of the growing demand for corpses,
which were frequently taken up and sold to medical colleges for dissection
and scientific purposes.
The questions arising in the case, however, can hardly be appreciated in
this country, to which the ecclesiastical law of England does not extend, and
which forms no part of our political system; and the conclusions reached by
the court as to the temporal use of the grave by its occupant, can have no
force in a republic spread over the broad bosom of a continent, and embrac-
ing within its limits hundreds of millions of square miles. It has been held,
that in the United States the temporal law of the church within the exclu-
sive jurisdiction of the English ecclesiastical tribunals, has no significance;
that the right to bury a corpse and preserve its remains is a legal right
which the law will recognize and protect. Our courts have held further, that
lands held by a church for cemetery purposes, are held by it in trust for
charitable as well as religious uses, and that the next of kin of occupants of
graves are beneficiaries for whom the trust was created, and for whose bene-
fit it will be upheld. That the occupancy of the grave, whether it operates
298 LORD STOWELL.
as a fee or as an easement, is perpetual so far as the usufructuary right of
occupancy is concerned, and for an intrusion of this right the offender must
answer in damages.
The facts arising in the case of Gilbert «. Buzzard, are as follows: On
the 2d of March, 1819, Mary Gilbert, wife of John Gilbert, died in the
parish of Saint Andrews, Holbom, in the city of London. The husband,
prompted by feelings of reverence and affection for the departed, deposited
her remains in an Iron coffin, to preserve them as long as possible from final
dissolution. The church wardens, however, chose to outrage the tenderest
feelings of humanity by refusing to allow the body to be buried, but forci-
bly prevented interment, and placed it in the bone house adjoining the
church yard. On the 14th of April, 1820, more than a year after the de-
cease of Mrs. Gilbert, a written request was sent to the rector, church war-
dens and sexton of St. Andrews, to allow the interment to take place on the
18th. Blinded by ignorance, bigotry and superstition, the church wardens
and officers, in disregard of the dictates of humanity and the best iCnd noblest
qualities of human nature, and in violation of the grandest precepts of the
divine teacher, forbade the grave to be prepared, and refused to permit the
burial, unless the remains should be taken from the metallic casket, in which
loving hands had placed them, and deposited in a wooden one.
Gilbert resorted to the courts of law for relief, and retained Sir James
Scarlett and Mr. Chitty as counsel, but under the peculiar and technical
authority and jurisdiction of the ecclesiastical law, as it prevails in England,
he was told by the court that he must seek his remedy in the consistory hav-
ing cognizance of all matters pertaining to the church. Accordingly Gilbert,
as plaintiff, exhibited articles against Buzzard and Boyer, church wardens of
the parish of Saint Andrews, as defendants, and proceeded against them in
the ecclesiastical tribunal for preventing the interment of a parishioner. The
question presented was, whether the plaintiff had a right at common law to
bury his wife in an iron coffin. Sir William Scott (Lord Stowell) heard the
argument and rendered judgment in the case.
His opinion is an exceedingly scholarly and polished essay upon the sub-
ject of burial, couched in elegant and dignified language, and presents an
exhaustive review of the modes of sepulture, which have been practiced in
the world. He decided that the right of burial was a common law right,
but that the use of the cemetery was subject only to temporary appropria-
tion, owing to the dense population of the parish, and the price and scarcity
of burial plots; and that while the use of an iron coffin was not necessarily
imlawful, it was nevertheless subject to additional compensation, com-
mensxirate with the relative durability as between wood and metal.
After a very learned discussion as to the fact of durability, the court fixed
£10 as the additional fee to be paid for the use of a metal coffin. The opinion
of the Courtis as follows:
LOKD STOWELL.— This suit is brought by John Gilbert,
parishioner, of Saint Andrews, Holbom, against John Buzzard
and William Boyer, church wardens of that parish, for the of-
fense of obstructing the interment of his wife, Mai-y Gilbert.
, GILBERT. T. BUZZ AED. 29(>
1. Allegations on the part of the plaintifes.
The criminating articles state in substance, that she was
likewise a parishioner, and died on the second of March, 1819 ;
that her body was deposited in an iron coiBn, and proper notice
given of the intended interment, and the usual fees paid for
such a burial ; but that the church wardens prevented, by f orce,
the burial from taking place, and, in consequence thereof, the
body was deposited in the bone, house, where it remains; that
the iron coffin would take up less space than a wooden one, and
is so constructed as to prevent the body from being taken out.
That again on the 14*h of April, in the present year, a written
notice was given to the rector, church wardens, and sexton, of
an intended funeral on the 18th, and a written answer returned
by the church wardens, that they would not permit it. That
the demand of interment was actually made on the day men-
tioned, but that the church wardens refused to permit the in-
terment unless the body was taken out of the iron coffin, and
forbade any grave to be prepared for its reception.
2. Allegations on the paet op defendants.
The defensive a;llegation states in substance, that the account
given by the promoter misrepresents the transactions; that
nothing was said by Gilbert, on his first application, about an
iron coffin, though he was then informed that the parish would
not receive one, but that he said it was to be of wood. He
paid the usual fees, and not until then declared it was to be of
iron, and refused to take back the fees. That a select vestry,
which governs the parish concerns, being assembled, took the
subject into consideration and passed a resolution not to admit
the iron coffin ; and a copy of such resolution was served upon
the undertaker. That on the 9th of March a forcible entry
was made into the church yard, and a great disturbance took
place, by a tumultuous demand for the body and for its inter-
ment, but the burial was not permitted to take place, and the
body remains in the bone house. That the parish is very large
and populous, containing an increasing population of 30,000
persons ; that the annual burials are above 800 and are increas-
ing ; that they have three burial grounds, besides the church
yard, all nearly filled with corpses ; that they would soon be
300 LORD STOWELL.
rendered useless by the mtroduction of iron coffins ; that it is
impossible to obtain new burial grounds, but at an enormous
expense and with grievous inconvenience ; that their proceed-
ings had been all guided and authorized by the select vestry
and by the parish at large.
3. Claim fok penalties abandoned. — ^A single question of
LAW PRESENTED. '
The suit appears to have begun under strong feelings of
mutual irritation, which have now properly subsided, and the
parties have agreed to take the opinion of the court upon the
dry question of right, without introducing into it any imputa-
tion of misconduct on either side, or engrafting upon it any
demand of penalties to be inflicted or costs to be decreed. In
this act of amnesty the court willingly concurs, and therefore
forbears to repeat any observations upon the strange wander-
ings into which the case has strayed since the transaction hap-
pened, which appears now in its regular form of proceeding.
4. Mode OF disposing of the dead among the ancients.
Before entering into the immediate question, it may not be
entirely useless or foreign to remark that the most ancient
modes of disposing of the bodies of the dead mentioned by his-
tory, are by burial or by burning,' of which the former appears
to be the more ancient. Many proofs of this occur in the sa-
cred history of the patriarchal ages, in which places of sepul-
ture appear to have been objects of anxious acquirement, and
the use of them is distinctly and repeatedly recorded. The ex-
ample of the divine founder of our religion in the immediate
disposal of his own person, imitated by that of his disciples and
followers, has confirmed the indulgence of that natural feeling,
which appears to prevail, against the instant and entire disper-
sion of the body by fire, and has very generally established
sepulture as the customary practice of christian nations.
5. SiK Thomas Beownb on inhtjmation and burning in
EARLY AGES.
Sir Thomas Browne thus expresses himself, in his quaijit
but energetic manner, in his treatise upon urn burial : " Men
GILBERT V. BUZZARD 301
have been fantastical in the singular contrivances of their cor-
poral dissolution ; but the soberest nations have rested on two
ways, inhumation and burning. That interment is of the elder
date the examples of Abraham and the patriarchs are sufficient
to illustrate ; but christians have abhorred the way of obsequies
by fire, and though they sticked not to give their bodies to be
burnt in their lives, detested that mode after death, affecting
rather a depositure than an absumption, and conforming them-
selves to the will of God, which required them to return again,
not to ashes, but unto dust. But burning was not fully disused
till Christianity was finally established, which gave the final ex-
tinction to these sepulchral bonfires."
6. Yaeious modes of bueiai, and use of coffins among the
ancients.
The mode of depositing in the earth has, however, itself
varied in the practice of nations. " Mihi quidem" says Cicero,
" antiqiiissi?num sepuUurcB genus id videtur fuisse, quo apud
Xenophontern Gyrus utitur" That great man is made by his
historian to declare, in his celebrated dying speech, " that he
desired to be buried neither in gold nor in silver, nor in any-
thing else, but to be immediately returned to the earth; for
what," says, he, " can be more blessed than to mix at once with
that which produceth and nourisheth everything excellent and
beneficial to mankind." There certainly, however, occurs very
ancient mention (indeed the passage itself rather insiauates the
same indirectly) of sepulchral chests, or what we call coffins, in
which the bodies being inclosed, were deposited so as not to
come into immediate contact with the earth. It is recorded
specially of the patriarch Joseph, that " when he died, he was
put into a coffin and embalmed ; " both of these being, perhaps,
marks of distinction to a person who had acquired high and
merited honors in that coimtry. It is thought to be strongly
intimated by several passages in the sacred writings, both old
and new, that the use of coffins, in our meaning of the word,
as inclosing chests deposited in the earth, was not familiar
amongst the Jews, and it is an opinion not lightly entertained
by some of the learned, that such was the case likewise in the
302 LORD STOWELL.
practice of the Greeks and the Komans. It is some confirma-
tion of that opinion that there is, perhaps, no word in the lan-
guage of either of them, that is exactly synonymous with our
word coffin, though the word itseK is borrowed from both lan-
guages, though in another signification.* The Grecian terms
usually adduced referring rather to \h.& ferebrum or bier on
which the body was conveyed, than to a chest or trunk, in
which it was shut up ; and the Eoman terms are either of the
like signification, or are mere general words (such as area, locu-
lus, and the like), without any funeral meaning, and without
implying any final destination of the substances which compose
them, to a deposition in the earth along with a human body,
7. Places selected eob sepultttee nr vaeious counteies.
The practice of sepulture has also varied with respect to the
places where performed. In ancient times caves seemed to
lave been in high request, then gardens, or other private de-
mesnes of proprietors, inclosed spaces out of the walls of towns,
or by the sides of roads {siste, viato?'), and finally, in christian
<50untries, churches and church yards, where the deceased could
receive the pious and charitable wishes of the faithful, who re-
sorted thither on the various calls of public worship. In our
own country the practice of burying in churches is said to be ante-
rior to that of burying in what are now called church yards, but
was reserved for persons of pre-eminent sanctity of Hf e. Men of
less memorable merit were buried in inclosed places not con-
nected with the sacred edifices themselves. But a connection,
imported from Home by Cuthbert, Archbishop of Canterbury,
took place about the year 750 ; and spaces of ground adjoining
the churches were carefully inclosed, and solemnly consecrated
and appropriated to the burials of those who had been entitled
to attend divine service in those churches ; and who now be-
came entitled to render back into those places their remains to
earth, the common mother of mankind, without payment for
the ground which they were to occupy, or for the pious offices
which solemnized the act of interment.
* Ki^'io! — CopMnus fcenumque suppellex. Juv. iii, 14. In both languages the
word signifies a basket.
GILBERT V. BUZZARD. 303
8. Modes of sepultuee governed by usage, eathee than
by ettles op law oe eeligion.
In what way the mortal remains are to be conveyed to the
grave and there deposited, I .do not find any positive rule of
law or of religion, that prescribes. The authority under which
the received practices exist, is to be found in our manners rather
than in our laws ; they have their origin in natural sentiments
of public decency and private affection, they are ratified by
common usage and consent, and being attached to a subject of
the gravest and most impressive nature, remain unaltered by
private caprice or fancy, amidst all the giddy revolutions that
are perpetually varying the modes and fashions that belong to
the lighter circumstances of human life. That bodies shoidd
be carried in a state of naked exposure to the grave, would be a
real offense to the living, as well as an apparent indignity to the
dead. Some iwoolucra, or coverings, have been deemed neces-
sary in all civilized and christian countries ; but chests or trunks
containing the bodies, descending along with them into the
grave, and remaining tiU their own decay, cannot plead either
the same necessity nor the same general use.
9. Use and disuse of coffins. — Shocking attempt of King
Leopold to abolish them.
I have already mentioned three nations of antiquity, two of
them highly polished, in which such a practice is reasonably sup-
posed not to have been familiar. In the eastern part of modern
Europe, the christians, generally members of the Greek church,
as well as their Mahometan masters, the Turks, are carried
npon open biers, and from thence descend in their shrouds or
funeral vestments only, mto their graves. Such is likewise the
general practice of Asia, in those parts where the practice of
burning does not continue to exist. Such is also represented to
be the mode of interment in the great European establishments
of South America. In Western and Northern Europe the use
of sepulchral chests has been more general. In our own times
an attempt was made by a great European sovereign to abolish
the use of them in his Italian dominions. The attempt was
30i LORD STOWELL.
much applauded by some philosophers, on the physical ground
that the dissolution of bodies would be accelerated, and the
dangerous violence of the fermentation disarmed, by a speedy
absorption of the noxious particles into the surrounding soil.
"Whatever might be the truth of this theory, the measure was
unfortunately accompanied by regulations which prescribed that
bodies of every age, and of both sexes, and of all ranks and
conditions, and of every species of mortal disease, however
hideous and loathsome, should be brought out, naked from the
houses and tumbled into a night cart, at the sound of a bell,
and conveyed to a pit beyond the city walls, "there to rot in one
common mass of undistinguished putrefaction — ^regulations
which, as might have been foreseen, were so strongly encoun-
tered by the natural feelings and established habits of a highly
civilized and polished people, that it was found necessary, at no
great distance of time, to bury the edict itself by a total revo-
cation.
10. Use of coffins m England, aito mateeials employed
m CONSTRUOimG THEM.
In our own country the use of coflBns is extremely ancient,
though, most probably, by no means general. They are actually
found of great antiquity, of various forms and of various mate-
rials: of wood, of stone, of metals, of marble, and even of
glass. Coffins, says Dr. Johnson, in his explication of the
word, are made of wood and various other matters. From the
original expense, of some of these materials, or from the labor
requisite in the preparation of them for this use, or from both,
it is evident that most, if not all of them, must have been occu-
pied by persons who had filled the loftier stations of life. In
modern practice, chests or coffins of wood or lead, or both, are
commonly used by persons who can afford to pay for them ;
for persons in abject poverty (whom the civil law technically
calls the miserahiliter egeni), what is called a shell, and which
I understand to be an imperfect coffin, and is successively used
for different individuals in some very populous parishes, unless
public or private charity supplies something better as the
vehicle. Persons dying at sea are, I believe, not unfrequently
consigned to the deep wrapped up in their hammocks or sleep-
GILBERT V. BUZZAED
305
ing beds ; but I know not that any of these are Tuymmatim or
directly required by any authority whatever.
A statute of Charles II requires that coffins shall be lined
with woolen, but it does not require that coffins shall be used.
It is to be observed that in the funeral service of the church of
England, there is no mention — indeed, there is rather an appar-
ently studious avoidance of any mention of coffins. It is,
throughout the whole service, the corpse or the body. The
officiating priest is to meet the corpse at the gate of the church
yard ; at a certain part of the service dust is directed to be
thrown, not upon the coffin, upon the body. In another part,
certain portions of holy writ or of pious admonition are to be re-
cited whilst the corpse is making ready to be put into the grave.
11. Fees foe coffined and ungoffined funeeals.
I observe, likewise, that in old tables of burial fees, a dis-
tinction of payment is made for coffined funerals and uncoffined
funerals. There is one of 1627, exhibited by Sir H. Spelman, in
his Tract de Sepultura, in which a certain sum is charged for a
coffined funeral, and about half that sum for an uncoffined fu-
neral, and expressly under those descriptions.* From which I
draw this conclusion of fact, that uncoffined funerals were, at
that time, by no means so unf requent as not to require a partic-
ular notice and provision. I think I might also venture to de-
duce this conclusion, a conclusion by no means impertinent to
the present inquiry, that even at that time it was recognized as
not unjust, that where the deceased by the use of his coffin
* A vestry constitution, 24 Nov., 162Y — 26 April, 1628.
Whoever shall be buried in the chancel, shall pay to the parish as shall be
For interring the corpse 10
In the aisles of the chancel,
To the church wardens for the ground 16 8
To the parson for interring the corpse 6 8
In the body of the church.
To the church wardens for the ground 10
To the parson for interring the corpse 6 8
In the church yard, CofSned. Uncoffined,
To the parson for interring the corpse 2 8 14
To him in like manner for every child under 1
years 2 8 14
All these double for every stranger. SpdmarC. Works, p. 186.
30
306 LORD STOWELL.
took a longer occupancy of the ground, he should compensate
the parish by an increased payment.
12. The eight of burial does not neoessaeily xnolpde
the usb of a metallic casket.
The argument therefore, that rests the right of admission
for particular coffins upon the naked right of the parishioner to
be buried in his parish church yard, seems to stop short of that
which is requisite to be proved, the right of being buried in a
large chest or trunk of any materials, metallic or other, which
his executors may think fit. The rule of law which says that a
man has a right to be buried in his own church yard is to be
found, most certainly, in many of our authoritative text writers,
but it is not quite so easy to find the rule which gives him the
right of burying a large chest or trunk in company with him-
self. That is no part of his original and absolute right, nor is
it necessarily involved in it. That right, strictly taken, is to be
returned to his parent earth for dissolution, and to be carried
thither in a decent and inoffensive manner. When these pur-
poses are answered, his rights are, perhaps, fully satisfied, in the
strict sense in which any claim, in the nature of an absolute
right, can be deemed to extend. At the same time it is not to
be denied that very natural feelings prompt to something be-
yond this ; to a continuation of the frame of the body beyond
its immediate consignment to the grave. An indulgence of
such feelings, highly allowable in themselves, naturally enough
engrafts itself upon the original right, so as to appear insepar-
ably connected with it, in countries where the practice has been
habitually indulged ; for, however men may feel or affect to
feel, an indifference about the fate of their own remains, few
have firmness, or rather hardness of mind sufficient to contem-
plate without pain, the total and immediate extinction of the
remains of those who were justly dear to them when living.
13. Sentiments which have given eise to a desire to
PRESERVE remains OF THE DEAD.
A sentiment of this kind has been supposed, as I have inti-
mated, to have led in part to a preference of burial to the pro-
cess of burning. It has likewise given birth to extravagant
GILBERT V. BUZZARD. 307
means for preserving human remains, for a period of time long
after the term at which any memory of the individuals, or any
affection of their survivors can be supposed to extend.
Amongst such extravagancies the use of coffins is certainly not
to be numbered. They are merely temporary themselves,
though of much longer duration than is necessary for their pri-
mary intention, that of preserving the body from the ravages
of the reptiles of the earth, if any such ravages are at all to be
apprehended. In later times, and in populous cities, ravages of
a more formidable kind are to be dreaded, against which
they afford no security ; those of the persons engaged in the
employment of furnishing bodies for dissection,' an employ-
ment which, whatever be its necessity, is certainly not conducted
without lamentable violation of natural feelings and occasion-
ally of public decency itself.
14, The use of ikon coffiks not unlawful.
It is particularly, I presume, with a view to prevent such
spoliations of the dead, that the use of iron coffins is pressed, in
this application to the court. The purpose of security against
such spoliations is, I understand, proposed to be effected by some
ingenious mechanical contrivance, which prevents the coffin
from being opened when once effectually closed. I do not find
that any objection is taken to the contrivance itself, on the
ground of in efficiency, or on any other. The objection is to the
metal, iron, of which the whole coffin is composed ; and I must
say that, knowing of no rule of law that prescribes coffins, and
certainly of none which prescribes wooden coffins exclusively,
and knowing that modern and frequent usage admits coffins of
lead, a metal much more indestructible than iron, I find some
difficulty in pronouncing that the use of this latter metal is
clearly and universally unlawful in the structure of coffins, and
that coffins so composed are inadmissible, upon any terms what-
ever. Such coffins, being composed of thin lamince, occupy,
as I presume and as I see it is alleged, rather less space than
those of wood itself. There is no objection therefore, on that
ground, and the objection, that they may be magnified to any
size, however inconvenient, seems to apply to coffins composed
of this substance, not at all more than to those of any other.
308 LORD STOWELL.
16. Bueiaij fee should be regulated by dueabilitt of
COFFm USED.
The real truth is, that the claim on the part of these coffins,
which is quarreled with, is neither more nor less than this,
that they shall be admitted upon the same terms of pecuniary
payment as those of wood. This claim cannot, I think, be rea-
sonably urged, but under shelter of one of two propositions ;
either that there is no difference in the duration of coffins of
wood and those of iron, or that the difference of duration
ought to make no difference in the pecuniary terms of ad-
mission.
16. COMPAEATIVB DtTEABILrTT OF lEON AND WOODEN COFFINS.
Upon the first of these questions, that of comparative dura-
tion, a wish was expressed by the court that it might be assisted
by opinions obtained from persons more scientifically convers-
ant with such subjects than I can describe myself to be, but be-
ing left to my own unassisted apprehensions on such a matter,
I must confess that it was not without a violent revolt of every
notion that I entertain, that I heard it rather insinuated in
argument than directly asserted or maintained, that iron coffins
do not keep a longer possession of the ground than those of
wood. To me it appears, without any experimental knowledge
that I can claim, that upon all common theory it must be other-
wise. Eust is the process by which iron travels to its decom-
position. If an iron coffin deposited in the earth contracts no
rust at all, from want of air or moisture, in that case it pre-
serves its integrity unimpaired. But if, from the moisture of
the soil in which it is deposited, or from the access of a little
air it contracts rust, that rust, until it scales off, forms an exter-
nal covering which protects the interior parts, and retards their
decomposition ; whereas the decay of the external parts of the
wood propagates inwardly its corruption, and promotes and
hastens the dissolution of the whole. It is the fault of the
party complainant, if, being left to judge upon this matter with-
out sufficient information, I judge amiss in holding that coffins
of iron are much more durable than those of wood.
gilbeet v. buzzard. 309
17. Aegument that the eight of occupanot in the geave
is perpetual, not tempoeabt.
It being assumed that the court is justified in holding this
opinion, upon the fact of comparative duration, the pretensions
of these coffins to an admission upon the same pecuniary terms
as those of wood, must resort to the other proposition, which
declares that the diflference of duration ought to produce no
difference in those terms. Accordingly it has been argued,
that the ground once given to the body is appropriated to it
forever — it is literally in mortmain unalienably ; it is not only
the domus ultima, but the domus ceterna, of that tenant, who
is never to be disturbed, be his condition what it may ; ' the in-
troduction of another body into that lodgment at any time,
however distant, is an unwarrantable intrusion. If these posi-
tions be true, it certainly follows that the question of compara-
tive duration sinks into utter insignificance.
In support of them it seems to be assumed that the tenant
himself is imperishable ; for surely there can be no inextin-
guishable title, no perpetuity of possession, belonging to a sub-
ject which itself is perishable. But the fact is that " man " and
" forever " are terms quite incompatible in any state of his ex-
istence, dead or living, in this world. The time must come
when " vpsceperiere ruince^'' when the posthumous remains must
mingle with and compose a part of that soil in which they have
been deposited. Precious embalmments and costly monuments
may preserve for a long time, the remains of those who have
filled the more commanding stations of human life, but the
common lot of mankind furnishes no such means of conserva-
tion. With reference to them the domus ceterna is a mere
flourish of rhetoric ; the process of nature will speedily resolve
them into an intimate mixture with their kindred dust, and
their dust wiU help to furnish a place of repose for other occu-
pants in succession. It is objected that no precise time can be
fixed, at which the mortal remains and the chest which con-
tains them shall undergo the complete process of dissolution ;
and it certainly cannot, being dependent upon circumstances
that vary, upon difference of soils, and exposures of seasons and
olimates: but observation can ascertain them sufficiently for
practical use. The experience of not many years is required
to furnish a sufficient certainty for such a purpose.
310 LORD STOWELL.
18. The cemetery the common peopeety op the living, and
subject only to tempoeaey appe0peiati0n8.
Founded on such facts and considerations, the legal doc-
trine certainly is, and has remained unaffected, that the com-
mon cemetery is not res unius cetatis, the property of one
generation now departed, but is likewise the common property
of the living, and of generations yet unborn, and is subject
only to temporary appropriations. There exists in the whole
a right of succession, which can be lawfully obstructed only in
a portion of it by public authority, that of the ecclesiastical
magistrate, who gives occasionally an exclusive title in such por-
tion to the succession of some family, or to an individual, who
has a fair claim to be favored by such a distinction ; and this
not without a just consideration of its expedience, and a due
attention to the objections of those who oppose such an aliena-
tion from the common property. Even a bricked grave, granted
without such an authority, is an aggression upon the common
freehold interests, and carries the pretensions of the dead to
an extent that violates the rights of the living.
19. In fixing compensation foe use of geave, denstty of
population and scaecriy op land must be consideeed.
If this view of the matter be just, all contrivances that,
whether intentionally or not, prolong the time of dissolution
beyond the period at which the common local understanding
and usage have fixed it, is an act of injustice, unless compen-
sated in some way or other. In country parishes, where the
population is small and the cemetery is large, it is a matter less
worthy of consideration ; more ground can be spared, and less
is wanted; but in populous parishes, in large and crowded
cities, the indulgence of an exclusive possession is unavoidably
limited, for unless limited, evils of most formidable magnitude
take place. Church yards cannot be made commensurate to the
demands of a large and increasing population. The period of
decay and dissolution does not arrive fast enough in the accus-
tomed mode of depositing bodies in the earth, to evacuate the
ground for the use of succeeding claimants. New cemeteries
must be purchased at an enormous expense to the parish, and to
GILBERT V. BUZZARD. 311
be used at an increased expense to families, and at the inconve-
nience of their being compelled to resort to very incommodious
distances for attendance on the offices of interment.
In this very parish three additional burial grounds are al-
leged to have been purchased, and to be now nearly filled.
This is the progress of things in their ordinary course, and if
to this is to be added the general introduction of a new mode
of interment, which is to insure to bodies a much longer posses-
sion, the evil will become intolerable, and a comparatively small
portion of the dead will shoulder out the living and their pos-
terity. The whole environs of this metropolis will be sur-
rounded with a circumvaUation of church yards, perpetually
increasing by becoming themselves surcharged with bodies, if
indeed, land owners can be found who wiU be willing to di-
vert their ground from the beneficial uses of the living to the
barren preservation of the dead, contrary to the humane maxim
quoted by TuUy from Plato's Republic : "Qucb terra frugea
ferre, et, ut mater, cibos, suppeditare possit, earn ne quis nobis
minuat, neve vivus neve mortuus."
20. Taking of money foe mTEEMENTS not conteabt to the
CANON LAW.
If therefore these iron coffins are to bring additional charge
and trouble upon the parish, they ought to bring with them a
proportionable compensation. Upon all common principles of
estimated value, you must pay proportionably for the longer
lease which you take of the groimd; to this condition coffins of
lead are subjected, and what is the exemption to be pleaded for
iron ? If you wish to protect your deceased relatives by addi-
tional securities, which press upon the convenience of the par-
ish, we do not blame the purpose nor reject the measure, but it
is you and not the parish who must pay the whole of the charge
imposed. I am aware, as I have already intimated, that very
ancient canons forbid the taking of money upon interment,
upon the notion that consecrated grounds are amongst the res
sacrcB, and that money payments for them were therefore acts
of a simoniacal complexion. But this has not been the way of
considering that matter since the reformation, for the practice
goes up at least nearly as far ; it appears founded upon reason-
312 LORD STOWELL.
able considerations and is subjected to the proper control of an
authority of inspection. In populous parishes, where funerals
are very frequent, the expense of keeping church yards in an
orderly and seemly condition, is not small, and that of purchas-
ing new ones when the old ones become surcharged, is extremely
oppressive. To answer such charges, both certain and contin-
gent, it surely is not unreasonable that the actual use should
contribute when it is called for ; at the same time the parishes are
not left to carve for themselves in imposing these rates ; they
are all submitted to the examination of the Ordinary, who ex-
ercises his judgment and expresses the result by a confirmation
of their propriety in terms of very guarded caution. It is,
perhaps, not easy to say where the authority could be more
properly lodged, or more conveniently exercised.
21. Kate of compensation to be fixed by the oedinaet,
not by the paeishbs.
Having, I think, sufficiently declared, in these observations,
my opinion generally upon the subject, I am not aware that
much more remains than that I should direct the parish to com-
pose a table of fees for the consideration of the Ordinary. It
will be for their own consideration in the first instance, how
far these coffins should be put upon the same footing as those
of lead. It is certain that they occupy less room, and that they
are more temporary in duration ; but it is likewise to be remem-
bered, that being much more accessible in point of original
expense, they are, therefore, likely to be much more numerous.
They are more likely on that account to transmute the ceme-
tery into a mine of iron, than there is any hazard of its being
converted into a mine of lead. It may be said that imposition
of high fees may, in effect, operate as a prohibition in populous
parishes and crowded church yards, to which I answer that,
even if such an effect should follow, it is better, than that a
parish should be robbed of the fair and convenient use of their
own public cemetery. Patent rights (under which I under-
stand these coffins are constructed) must be held by the same
tenure as all other rights. Ita utere jure tuo alienum ne
Imdas, they must not trench upon rights more ancient, more
public, and such as this court is peculiarly bound to protect.
THE JANE AND MATILDA. 313
In the meantime, I recommend that the body which has lain
so long nnhonored, should be committed to the grave without
obstruction, but without prejudice to the present question, or to
the rights of the parish. No public prohibitory resolution had
passed at the time of the death, and I wiUingly lay hold of that
circumstance to recommend a measure of peace towards the liv-
ing and of charity toward the dead.
I shall admit affidavits on both sides, before any table of
fees is confirmed.
On a su1}sequent day this cause came on again, on the explanations permitted
to be offered on aflBdavits, as above directed by the court, and connsel were heard
on the effect of those explanations. A fee of £10 extra on the interment of each
metal coffin in the parish was subsequently fixed, a sum which practically de-
stroyed the patent of Mr. Bridgman, in his invention.
II.
WOMAN'S SEX NO BAE TO HER CLAIM FOE
MARINER'S WAGES.
The Jane and Matilda. — July 12, 1823.
[1 Hagg. Adm't, 187.]
Analysis of Loed Stowell's Opinioit.
, Services performed by the claimant.
, Testimony of the captain.
Testimony of the custom-house officer
and waterman.
Claimant legally entitled to recompense
for services rendered.
5. Military and other services which have
been performed by women.
6. Ignorance of co-owners as to employment
of a female immaterial.
The character of woman fiirnishes a theme at once the most romantic
and thrilling in legend and poem, in story and romance. Many of the im-
pressive and dramatic chapters in the world's history take life and color •
from memories of woman's shame or woman's glory. Notwithstanding the
great disadvantages with which she has had to struggle, and the insurmount-
able barriers which for centuries have hindered the growth and development
of her influence ; notwithstanding the fact that until but recently the law
has been construed and perverted to rob her of individuality by merging her
very existence in that of her husband, and despite all the years of injustice
314 LOED STOWELL.
and wrong that woman has suffered, she has left the impress of her genius
upon the ages, and while poetry is written, the bard will sing the glory of
her proud renown —
" She walks in beauty, like the night
Of cloudless climes and starry skies;
And all that's best of dark and bright
Meet in her aspect and her eyes."
The elevation of woman, the growth of her influence, and the recognition
of her ennobling nature, mark the highest advance of civilization in the long
story of human progress.
There is a sublime sentiment in the answer of Christ to the Pharisees
when he said : "Have ye not read that he which made them at the beginning,
made them male and female, and said, for this cause shall a man leave father
and mother, and shall cleave to his wife: and they twain shall be one flesh?
Wherefore they are no more twain, but one flesh." But this sacred truth
has been used to deprive woman of her legal rights. It has been perverted
to take away entirely her legal existence, and made the fimdamental princi-
ple of a system of inhumanity, injustice, and oppression, under which
women have suffered, which is designated by the early common law writers,
under the head of "baron and femme,'' which, literally translated, means
woman and her master. It has been construed so as to justify what is
termed a community of interest with regard to the property of the wife; but
which, in truth, was not a community interest at all, but simply a transfer
of her property to the husband absolutely during his lifetime. This injus-
tice has been at last recognized by the legislature both here and in England,
and the rights and property of the wife are now protected by statute against
the waste or rapacity of the improvident or avaricious husband.
But until the claim of Elizabeth Stephens for mariner's wages was con-
tested, no case could be found where the objection was raised that a female
had no rights, solely because she happened to be woman born. The law re-
cognized a woman's existence as long as she remained single. It was only
when she entered the matrimonial state that her existence ceased, in the eye of
the law. In this case, however, the attempt was made to induce the court, as
matter of law to ignore entirely the rights of a female solely on the ground
of sex. It seems that on the 17th of May, 1817, at Plymouth, England,
Elizabeth Stephens, a somewhat robust and vigorous female, shipped aboard
the "Jane and Matilda," as cook, steward and ship-keeper, the wages agreed
upon being two pounds and five shillings per month. She remained with
the ship during three successive voyages (coasting and trading in England,
Wales, Ireland, and Spain), until October, 1821, when the captain became
banltrupt. The vessel was assigned to the mariners to secure their wages, and
among the others to Elizabeth Stephens. It was not denied that she had at all
times faithfully performed all the duties required of her. While not actually
engaged as cook and steward, she (as is customary with mariners in her po-
sition) performed her watch, took her turn at the helm, and assisted in navi-
gating the vessel, lent a hand in pulling the ropes upon the deck when re-
quired, and in the discharge of all her duties, exhibited skill and ability, and
acquitted herself with credit. When the assignees of the insolvent captain
THE JANE AND MATILDA. 315
claimed possession of the sliip, she, without resistance, surrendered the share
that had been transferred to her as security for her wages. When the assig-
nees got possession, however, they absolutely refused to pay her, and she
was driven to legal proceedings to recover the amount due, estimated at from
sixty-four to ninety-one pounds. To this claim the assignees interposed the
meanest defense ever introduced in a c6urt of justice. They resisted it
solely on the ground that the claimant was a woman, and could not, there-
fore, recover wages earned in the capacity of a mariner. It was argued
that, for a woman to go down to the sea in a ship, in the capacity of mariner,
and then be allowed to recover the wages earned in a position where she
must necessarily come in contact with the sailors in their common employ-
ment, would be to encourage immoral practices. But this lofty morality,
when urged to defeat a recovery for services after they had been actually
rendered, even if logically correct, only places the parties urging it in the
contemptible plight of endeavoring to reap for themselves the proceeds of
the shame which they assumed to deprecate, but which they by no means es-
tablished. The affair was a gross libel on the woman's virtue, which was
not justifled or excused. Callous and stolid, the assignees refused to com-
promise, and drove the court to the necessity of placing their disgrace upon
the record. But the meanness of these parties went farther, and they even
made application to the Court of Chancery for an injunction to prevent the
payment of the money awarded Miss Stephens in the Court of Admiralty, on
the ground that she was, after all, the wife of the captain, and the claim was
therefore collusive. Finding that a woman, while single, has some rights which
the law is bound to respect, they quickly shifted their ground, and claimed
that she was married, and therefore had no rights. It appears, however,
that the injimction was never enforced. The opinion of the court in this
odd case is as follows;
LORD STOWELL. — I am driven to the necessity of giv-
ing a decree in this case, which I would gladly have avoided.
It is a case that presents itself upon evidence on one side only,
and on a claim, which I have no particular wish to encourage,
for man's work done by a female, and under circumstances
which, ii generally brought into practice, might lead to a good
deal of moral disorder, with all the consequences likely enough
to flow from it. It is likewise a claim against a bankrupt es-
tate, in which the parties resisting the claim have produced no
evidence, and in truth have offered none but such as could not
be admitted without a breach of the established rules of prac-
tice in this court. If due diligence and attention have really
been used in procuring evidence, I can only say they have been
unsuccessful in their results ; and that, I think, would have
been a reason for acceding to something of a private compro-
mise. However, no regard has been shown to the intimations
316 LORD STOWELL.
wMcli I have thrown out to that effect, and I must follow the
course which the parties have prescribed to me.
1. Seevioes peefoemed bt the claimant.
It is a claim, as I have said, for man's work done by a
female, and this work done on board a ship in two capacities —
one as cook and steward (for these are imited offices), the other
as keeper of the ship and her stores in harbor or dock. The
two first employments combined, are not thought derogatory to
the female character when their offices are performed on land ;
for they are so performed in most families under the corre-
sponding titles of cook and housekeeper. But they are em-
ployments very rarely so filled on board of ships, and it is de-
sirable that they should so continue, for the reason already
alluded to, that if the practice became frequent, it might be too
likely to convert ships into places of irregular indulgence.
There may be occasion enough to fear that the lawful com-
mands of the master would not be the only commands to which
a ready obedience would be given. But if the fact has been
that the captain has had the entire management of the ship given
up to him, without any attention on the part of the other own-
ers; and has employed such a cook and steward without
objection from them ; and if the service belonging to such em-
ployments has been actually and properly performed, and the
expense of another cook and steward saved to the ship and her
owners, it is surely too late to object to the payment of the
wages ordinarily due for such services, merely on the ground
of the sex of the person employed in performing them. The
work has been done, and well done ; and being so, I hardly
conceive that suck an objection is legally maintainable. It
may be said, and has been said, that the person acting aboard,
acts (and is expected to do so) as mariner likewise. It will
appear upon the evidence that this person did so in a great de-
gree. The witnesses speak to exhibitions both of skill and
strength, in her serving her due time in her turn at the helm,
and in lending her hands, which were sufficiently robust, at the
pulling of ropes upon the deck.
The other capacity in which she served, is that of ship-
keeper for a long space of time, in which the vessel remained
THE JANE AND MATILDA. 317
in dock or harbor, during all which time she had the business
of keeping the ship clean by frequent washing, and of looking
to the safe custody of the stores left on board. This is an em-
ployment not usually consigned to females, though there is
some evidence that women do live on board ships in such situ-
ations with their families, and occasionally perform such duties ;
and I do not see why, if they actually have performed the serv-
ices without objection, the objection of the sex should be
urged in bar of the ordinary remuneration ; or why the ship-
keeper is to be pennyless any more than the housekeeper.
2. Testimont of the captain.
The first witness is the captain : certainly a person on whose
evidence I am not inchned to rest much, though I do not see
that it is very forcibly impugned, either by the manner in
which he has given it, or by what is extorted from him on the
cross examination. There may be reasons enough to suspect
that he engaged the services of this woman in more capacities
than those he has described. I say, to suspect ; because it cer-
tainly is not proved and cannot be so taken ; whether she acted
in the character of wife, or in a less honorable connection,
seems hardly settled even in conjecture. He sometimes, though
rarely, called her " wife," which, he says, he did from her con-
nection with the ship in a capacity which would entitle a man
to be called a ship's husband, and no otherwise. He has de-
clined to answer a searching question respecting his intimacies
with her ; and nothing can be inferred from his use of his legal
privilege in so declining. It is, theref pre, unnecessary for me
to inquire how far such a circumstance, if proved, would de-
stroy the claim for services actually performed of an unexcep-
tionable and useful nature. The substance of the captain's
evidence is this : he says he hired her in the Cutwater at Ply-
mouth, on a coasting and trading voyage ; he agreed to pay her
£2 6s. per month for so long as she should remain on board ;
she engaged to act as cook and steward the day after she came
on board, and bound herself by an agreement to perform such
services. The following day he set sail, and made various voy-
ages from Plymouth to Wales, from Wales to Ireland, from
Ireland to Seville in Spain, from Seville to London, and back
318 LORD STOWELL.
again to Plymouth, where he discharged the suitor Elizabeth
Stephens. Some short time after the captain took a cargo on
board for St. Michaels, and Elizabeth Stephens again entered
the ship and agreed for the voyage. Shortly, however, the ship
was seized by the sheriff for a debt ; it was subsequently sold,
and bought in by a Mr. Simmonds, the creditor. During this
time she remained on board, and the ship was carried into the
London docks, where she remained some time on board. The
ship was again taken out in September, 1820, for another voy-
age, when the captain again agreed with the suitor for £2 5a.
per month. She remained on board until October, performing
the offices of cook and steward, and assisting in her turn in
navigating the vessel ; she performed her watch and took her
turn at the helm. In October the captain became a bankrupt.
3. TESTIMOirT OF THE CUSTOM-HOUSE OFFICEE AND WATERMAN.
The next witness is a custom-house officer. He went on
board the Jane and Matilda, in the London docks, and there
found the suitor on board, bound for Seville in Spain, whom
the captain called cook and steward. There was no other person
on board ; and the master only came occasionally. He consid-
ered she was hired by the master, and that she performed her
part as a mariner and seaman. The next witness is a water-
man. He says he saw her frequently on board the ship ; she
appeared to have the sole command ; and, in the witness's
opinion, was a most excellent shipkeeper, taking great care of
the ship. The last witness is a man who went with the ship to
Plymouth. He said she well and truly performed her duty,
not only as cook and steward, but as a seaman ; she obeyed all
lawful commands ; and he considered her particularly diligent
and attentive, performing her part much better than many of
the crew had done.
4. Claimant legally ENirrLED to eecompense fok seevices
RENDERED.
Upon this evidence I find some difficulty in coming to the
conclusion that this woman is entitled to nothing. Here are
duties performed which must be performed by somebody on
THE JANE AND MATILDA. 319
board tliis sliip. Nobody else is proved to have performed
them. She is proved to have performed them, and to have
performed them well. She states her case fairly; produces
her witnesses fearlessly ; witnesses not at all connected with
her, or otherwise impeached. Nothing comes from them that
betrays a disposition to give an unjust testimony. She does
not act, as far as I see, with any perverse resistance. She gives
up the assignment without any opposition on her part. Here
are strong testimonies, totally unopposed, to the work done ;
and that is the material point for the court to look to ; for sup-
posing an informality in the mode of hiring, still, if the work
has been done and properly done, it entitles the performer to
the common remuneration ; and it is not pretended that she
sues for more than the common rate of payment for such em-
ployment. Nobody else is described as performing the duties.
It is true that 1 rejected an allegation which came too late in
the day, which pleaded that the person who seized the ship at
Plymouth had been shipkeeper himself, or by deputy, for a
certain portion of time ; because it was offered in an undue
form, and at an undue period of the cause ; and because the
fact, if true, might have been ascertained by fair inquiry long
before, and ought to have been so ascertaiaed and regularly
produced. The share of the ship transferred to her by assign-
ment of the captain was surrendered without any resistance.
I really feel a difficulty in sayiag that, under aU these circum-
stances the woman is not entitled to recompense. Tet that is
what the other parties require. They say she shall have noth-
ing — we bind her to the chance of her legal demand and the
decision upon it, and to that only — no compromising offer shall
she receive from us.
5. MlLITAET AND OTHER SERVICES WHICH HAVE BEEN PEEFOEMED
BY WOMEN.
Now, I cannot blind myself to the facts I have stated of
this particular case, though certainly not disposed to encourage
any general practice of this kind. Neither can I blind myself
to the notorious fact that many offices of man's labor are per-
formed by women in many countries, and amongst other coun-
tries even in our own — and man's labor of the coarsest and
320 LORD STOWELL.
roughest species. Even military offices have been so performed
meritoriously, and rewarded on that account. In this court we
have seen, during the war, women acting in defense of the
ships they were on board, and sharing in the distribution of
salvage adjudged. We have heard of women standing by the
gun to which their husbands were attached in time of engage-
ment, and of others who have acted as soldiers under the dis-
guise of men, and receiving pay and other emoluments of the
profession suited to the proper execution of the duty. The
name of Joan of Arc will long live, to her own glory, and to
the shame of our country, from which she received such un-
worthy treatment. I have lately been present at discussions
elsewhere, in which many instances have been cited of females
holding high offices entitling to military command, and to emi-
nent stations in the field of battle, oi for the suppression of
civil commotions. The sovereignty of these kingdoms, which
entitles the bearer to the character of captain-general of the
realm, has been borne by females with sufficient splendor, and,
in the case of Queen Elizabeth, not without demonstrations of
personal courage, and a readiness to encounter the hostilities
with which she was threatened. The Countess of Dorset,
Pembroke, and Montgomery, in the time of Charles I, filled
the office of hereditary high sheriff of Westmoreland. As such
she was authorized to raise the fosse comitatus, and she did
actually sit on the bench at the assizes, and is even said to have
personally attended at the execution of the last process of the
law.
Looking to all these circumstances, I find great difficulty in
arriving at the conclusion that a female can be entitled to noth-
ing for that service which would be remunerated in a man. It
does not appear to me that the sex alone creates a legal and total
disqualification. There may be reasons enough that render the
engagement of women in a particular maritime employment
unseemly and unsuitable ; but if persons have had the benefit
of their services in such employments, to the effect of saving
the expense they must have incurred by employing other per-
sons in them, I doubt much the propriety of their turning
round and taking shelter under the objection that those who
have performed the services are not of the right sex.
THE JANE AND MATILDA. 321
6. IgNOEAUCE of CO-OWNEES as to employment of A FEMALE
IMMATEEIAL.
It was said that the co-owners were ignorant of all this em-
ployment of a female. That may be their fault, or their misfor-
tune, in giving their confidence to an unworthy person ; but be
it one or the other, it would not destroy the legal claim of a
third person who has acquired it. It was said, too, that there
was no inattention on the part of the assignees. That may be;
but they must take the property in the state in which they find
it, deteriorated possibly by the fault of former possessors ; but
such as it is, such they must take it. And I am constrained to
add, that there certainly has been no particular promptitude on
the part of these assignees, even after making due allowance for
the difficulties that generally obstruct the course of proceeding
in a bankrupt concern. No defensive allegation was offered
till the established practice of the court had shut the door
against its admission ; and after the cause had been fully heard
throughout on both sides, and nothing but the indulgence of
the court, acting principally on the hope that a little delay
might tend to prevent further expenditure, had postponed the
decision, another allegation was offered, with an offer of fresh
facts, but without any averment that they were such as might
not have been discovered, by due diligence, in the proper time,
and when no such irregular indulgence was necessary to be ap-
plied for. The court rejected the offer on that ground, and
leaves, I fear, the property to the ordinary course of bankrupt
corcems, to be expended in litigation.
Upon, the whole, I am of opinion that nothing has been
shown to deprive this female suitor of her right to the ordinary
wages for the service she has performed. In her original affi-
davit she claimed about £60 ; in her summary petition, about
£90. As I do not wish to distress a bankrupt estate, I shall
pronounce for the lower sum. As the present is not a regular
court day, I shall not at present make the actual decree ; but,
having now stated the grounds of my judgment, I shall sign a
decree conformably to them on the caveat day.
The court pronounced that the sum of £64 14». was due for wages, and de-
creed the payment thereof, with the expenses.
21
VALIDITY OF GIFTS FOR ADVANCEMENT OF LEARN-
ING, AND TO PERPETUATE DONOR'S NAME.
LORD CHIEF JUSTICE WILMOT.
A gift for the advancement of useful learning is the most mer-
itorious charity that can be given. Most charities terminate with
individuals, who are the objects of them. But donations of this
kind are benefactions to the whole community. They furnish the
means of bringing great parts and natural abilities out into public
service, and thereby become a charity not only to the persons who
are so helped forward in their education, but to the whole society,
which reaps the benefit of those parts and abilities in the several
stations of life, where Providence places and employs them; and
as Coke, in arguing Porter's case, says: "No time was ever so bar-
barous as to take away erudition and science."
All people have at all times thought it most meritorious to pro-
mote and encourage them. Even Omar, who directed the Alexan-
drian library to be burnt, did not wage war against useful learning;
but thought if the learning contained in those books did not agree
with the Alcoran, it was noxious; and if it did, it was useless.
It has been observed that it is an ostentatious attempt to per-
petuate the testator's name.
Wishes of this kind often influence the wisest and best of men.
There is nothing immoral in yielding to such a motive, if it was
the sole and only motive of such a disposition. It is a passion
implanted in the mind as a laudable incentive to industry, and the
reward promised Abraliam for his faith: "I will make thy name
great among the nations."
The Barnardistons and Peters's are to change their name; but
that circumstance will not affect the validity of the devise; and why
should that circumstance be more disgustful in one case than the
other ? To raise and establish a family in the testator's name and
blood was his first object. Natural affection was the principle of
that provision. To perpetuate his name, by the medium of a col-
lege for the good of mankind, was his next object. Social affection
was the object of that provision.
Admit that vanity had some share in both the dispositions; it
loses all its malignant qualities when it is productive of good.
And in Popham, 139, ascribing charitable gifts to vainglory and
ostentation, is said to tend to a public wrong, because it deters and
discourages them; and perhaps the world owes some of the great-
est and noblest benefactions to this motive, acting in a thousand
shapes and forms. It is a spring not to be checked and stopped
up; because, under the direction of good laws, it becomes an inex-
haustible source of benefits to mankind. And courts of justice
are not to examine, like casuists, the motives of such dispositions,
but to execute or condemn them, according to their own intrinsic
merit or demerit, let them proceed from what motive they will. —
[Atty. Gen. v. Lady Downing, Wilmot's Opinions, pp. 35, 26.]
[332]
LORD BROUGHAM.
ON THE LAW OF CONFIDENTIAL AND PRIVILEGED
COMMUNICATIONS TO ATTORNEYS.
Geeenough v. G-askell, High Cotjet of Chanceet, Jas-
VARY, 1833.
[1 Mylne & Keene, 98.]
Analysis or Loed Beougham's Opinion.
s. A party, but not his attorney, must dis-
close all he knows.
2. Communications made to counsel are sa-
cred, and ought never to be disclosed.
3. Information given in procuring profes-
sional advice, protected without refer-
ence to litigation pending or contem-
plated.
4. Reason and foundation on which the
doctrine of confidential communications
rests.
5. Apparent exceptions to the rule, showing
the cases where protection is withheld.
6. Authority of Lords Holt, Nottingham,
and EUenborough, giving the rule the
broadest scope.
7. Cases where protection has been refused
illustrating the exceptions to the rule.
8. Attempt of Lord Tenterden to restrict
the rule to cases where litigation is
pending or contemplated,
g. Subsequent modification by Lord Ten-
terden of his previous ruling.
10. Restriction as to the rule no longer fol-
lowed.
DxJKiNG the most memorable and gloomy period of the American revolu-
tion, when General Washington was about to go into winter quarters at
Valley Forge — across the Atlantic, in tJie city of Edinburgh, Henkt Brough-
am was bom. He lived long enough to mourn the loss of Abraham Lincoln,
the sixteenth president of the United States, and to witness the impeach-
ment trial of Andrew Johnson, the successor of the great emancipator.
Along time's path, 1778 and 1868 are the dates which mark the limitations
of the earthly sojourn of the great Scotch advocate.
The aim of this remarkable man seemed to be to compass all knowl-
edge. Mr. Irving Browne, in his "Short Studies of Great Lawyers," speak-
ing of Lord Brougham, says : ' ' His biographer has not only to portray a lawyer,
but an author, a philosopher, a scientist, a statesman, and a reformer." Some
idea of his varied acquirements, industry and usefulness is suggested by this
inscription, which posterity by common consent must write under his statue :
" The great apostle of education, the emancipator of the negro, the restorer
of abused charities, the reformer of the law," to which must be added, says
Mr. Browne, " champion of popular education, advocate of free printing, de-
[333]
324 LORD BROUGHAM.
fender of Queen Caroline." In view of the extensive field of knowledge
cultivated by Brougham, some unkind rival waggishly remarked that "if he
only knew a little law he would know a little of everything." But as an
advocate, his defense of Queen Caroline is equal in some respects to the
magnificent and stately rhetoric of Erskine, and secures for him a high place
as a forensic orator; and his judgments, during his brief administration as
Lord Chancellor, reflect credit upon his professional learning and acquire-
ments. Brougham, too, was a practical man. His talents were not buried
in a napkin, but were used freely in accomplishing his great' undertakings,
among which his reform in chancery procedure is notable; for this was
mainly accomplished through his industry and perseverance, in connection
with Lord Campbell and Sir Samuel Eomilly. Lord Eldon was indeed a
great chancellor, and presided in the marble chair for five-and-twenty years,
but it was a quarter of a century of delay and doubt, which resulted in
ruin to a majority of the suitors in his court.
For years the clumsy proceedings in chancery had been regarded as a
public calamity. A fair illustration of this fact will appear in the case of
Dr. Bond and his children and grandchildren, and a perusal of the opinion
of Lord Kedesdale, in that remarkable case, at page ISl, ante. But in the
days of Eldon, who was extremely dilatory, the Court of Chancery grew to
be a crying evil, and the unfinished business there, at one time , involved
property aggregating over eleven million pounds sterling, which was an
enormous sum in Eldon's.time.
Brougham used his knowledge, his talents, his strength and his energies
to abolish the wretched system of procedure then in vogue. He became
chancellor in 1830, and Sydney Smith, referring to the advent of this vigor-
ous reformer, says: "There is Brougham, sworn in as chancellor at noon,
and laying on the table of the lords at six o'clock the same day, a bUl for
chancery reform." In this connection it is sufficient to observe that during
the brief four years of his chancellorship, he disposed of nearly all the enor-
mous arrears of his predecessors. Eldon and Lyndhurst, and, in addition, all
the new business which came before him.
His judgments show careful and intelligent consideration, and are re-
garded as high authority. The decision in Greenough b. Gaskell, given
below, shows the thoroughness of the man, and indicates his learning and
research. It is evidence, too, in connection with his busy life, and the great
accumulation of business upon his calendars, of the prodigious energy of
this model judge. This opinion stands to-day as high authority, and was
referred to by Lord Abinger, in 2 M. & W. 100, and is cited in Russell v.
Jackson, 15 Jur. 1117, as settling the law on the subject of professional
communications made to a counselor, solicitor, or attorney, which are re-
garded as sacred in courts of justice.
It established the doctrine that the confidential counselor, solicitor or at-
torney of a party, cannot be compelled to disclose papers delivered or com-
munications made to him, or letters or entries made by him in that capacity;*
and clearly illustrates the scope and extent of this salutary rule, the excep-
• 1 Greenleaf on Evidence, § 2SV.
GKEENOUGH v. GASKELL. 325
tions to it, and the reason and foundation upon which it rests. It is based, not
■upon the theory that such communications are made confidentially, but wholly
upon groimda of public policy, with a view to promote the administration of
jxistice in order to secure the rights of parties litigant, or in search of legal ad-
Tice. The doctrine, therefore, cannot be extended to confidential communi-
cations, which are not made to attorneys or counsel, and does not embrace
the latter even, unless they stand in professional relations with the parties.
But if made to the lawyer in his character as such, or to his interpreter,
agent or clerk, they are protected, and whether the counselor is called as a
■witness merely, or is made a defendant in an action, he will not be obliged
or permitted to disclose them.* " The principle of the rule which applies to
attorneys and counsel," saysChief Justice Shaw, "is, that so numerous and
complex are the laws by which the rights and duties of citizens are governed,
so important is it they should be permitted to avail themselves of the superior
skill and learning of those who are sanctioned by the law, as its ministers
and expounders, both in ascertaining their rights in the country, and main-
taining them most safely in courts without publishing those facta which they
have a right to keep secret, but which must be disclosed to a legal adviser
and advocate, to enable him successfully to perform the duties of his office,
that the law has considered it the ■wisest policy to encourage and sustain this
confidence, by requiring that on such facts the mouth of the attorney shall
■be forever sealed. f
The question involved in Lord Brougham's opinion arose upon an appeal
from an order made by the vice-chancellor, refusing plaintifiE's application
for leave to inspect certain entries and memoranda, books, letters and papers,
admitted to be in the possession of the defendant, on the ground that they
came to his knowledge and possession in the course of his professional em-
ployment as attorney and counselor at law.
The discovery was sought in an equity suit brought against Richard Gas-
kell, the defendant, to cancel a certain promissory note made by one Thomas
Darwell, a client of the defendant, on the ground that plaintiffs were induced
by the defendant to join Darwell in making the note, by means of false rep-
resentations as to the latter's solvency. It was alleged by the plaintiffs that
Gaskell obtained an order for the payment of £1,600 to his client, Darwell,
which order, it was said, was made upon the assumption that Darwell had
furnished the security required by a previous order of the court, but which
security had not in fact been furnished, as the defendant well knew when
he got the order. When the mistake was discovered, DarweU was ordered to
pay back the money into court, and failing to do so, was arrested. Gaskell,
it was said, then applied to the plaintiffs to join Darwell in making a note,
■upon which Gaskell afterwards advanced the necessary amount, and Darwell
was at once released; that in order to induce plaintiffs to make this note,
Gaskell falsely represented that his client's embarrassments were temporary
* Jackson v. French, 3 Wend. 337 ; Power ». Kent, 1 Cowan, 211 ; Bowman v.
Norton, 5 C. & P. l'?V; Fen wick v. Beed, 1 Meriv. 114; Perkina v. Hawkshaw, 2
Stark. 239.
fHatton V. Robinson, 14 Pick. 422.
326 LORD BROUGHAM.
only, when he well knew that he was hopelessly insolvent, and had com-
mitted an act of bankruptcy.
The theory of the action was, that because Darwell got the money by an
order improperly obtained by defendant, the money was in the first instance
got through defendant's agency, and if Darwell had failed to raise the
amount, defendant would himself have been liable, and, therefore, that in
equity, Gaskell, the lawyer, was the principal debtor, and the plaintiffs,
when they made the note, were only his sureties; and in view of the false
representations, and defendant's relation to the original debt, upon which
Darwell was arrested, the note, it was claimed, should be delivered up and
cancelled. The defendant denied the fraud, and denied that the order of
court had been improperly obtained, and denied that he induced plaintiffs to
make the note by means of false representations, or that the note was made
at his instance or entreaty. He admitted, however, that he had for years
acted as the attorney for Darwell, and was at the time the note was made,
fully aware of his insolvency, and admitted having entries, memoranda,
books, letters and papers relating to Darwell's circumstances, a schedule of
which he appended to his answer; but alleged that he had written or re-
ceived the same in the course of his professional employment, and refused to
allow an inspection or examination of the particular papers and writings.
Upon application to the court the vice-chancellor refused to allow such
inspection, and this decision, upon appeal, was aflHrmed by Lord Brougham,
who stated his reasons as follows:
1. A PAETT, BUT NOT HIS ATTOENET, MUST DISCLOSE ALL HE
KNOWS.
LOED BEOUGHAM.— We are here to consider not the
case which has frequently arisen in courts of equity, and more
than once since I came into this court, of a party called upon to
produce his own communications with his professional advisers.
How far he may be compelled to do so has, at di£Eerent times,
been a matter of controversy. And in two cases before Lord
Lyndhurst, Hughes v. Biddulph ; Vent v. Pacey,* and one since
I sat here, Bolton v. Corporation of Liverpool,f the piinciple
has been acted upon, that even the party himself cannot be
compelled to disclose his own statements made to his counsel or
solicitor in the suit pending, or in reference to that suit when
in contemplation. But the party has no general privilege or
protection. He is bound to disclose all he knows, and believes
and thinks respecting his own case ; and the authorities, there-
fore, are, that he must disclose also the cases he has laid before
counsel for their opinion, unconnected with the suit itself.
*4 Rnss. 190, 193. f 1 Mylne & Keene, p. 511.
GEEENOUGH v. 6ASKELL. 327
2. OoMMtTNICATIONS MADE TO COUNSEL AEB SACKED, AND OUGHT
NEVER TO BE DISCLOSED.
Here the question relates to the solicitor, who is called upon
to produce the entries he had made in accounts, and letters re-
ceived by him, and those written (chiefly to his town agent) by
him, or by his direction, in his character or situation of confi-
dential solicitor to the party ; and I am of opinion that he can-
not be compelled to disclose papers delivered, or communica^
tions made to him, or letters or entries made by him in that
capacity. To compel a party himself to answer upon oath, even
as to his belief or his thoughts is one thing ; nay, to compel him
to disclose what he has written or spoken to others, not being
his professional advisers, is competent to the party seeking the
discovery ; for such communications are not necessary to the
conduct of judicial business, and the defense or prosecution of
men's rights by the aid of skillful persons. To force from the
party himself the production of communications made by him
to professional men, seems inconsistent with the possibility of
an ignorant man safely resorting to professional advice, and can
only be justified if the. authority of decided cases warrants it.
But no authority sanctions the much wilder violation of profes-
sional confidence, and in circumstances wholly different, which
would be involved in compelling counsel or attorneys or solici-
tors to disclose matters committed to them in their professional
capacity, and which, but for their employment as professional
men, they would not have become possessed of.
3. Infoemation given in peocueing peofessional advice, peo-
tected without eefeeence to litigation pending oe con-
templated.
As regards them, it does not appear that the protection is
qualified by any reference to proceedings pending or in contem-
plation. If, touching matters that come within the ordinary
scope of professional employment, they receive a communica-
tion in their professional capacity, either from a client or on his
account, and for his benefit in the transaction of his business,
or, which amounts to the same thing, if they commit to paper,
in the course of their employment on his behalf, matters which
328 LORD BROUGHAM.
they know only througL. their professional relation to the client,
they are not only justified in withholding such matters, but
bound to withhold them, and wiE not be compelled to disclose
the information or produce the papers in any court of law or
equity, either as party or as witness. If this protection were
confined to cases where proceedings had commenced, the rule
would exclude the most confidential, and it may be the most
important of all communications ; — ^those made with a view of
being prepared either for instituting or defending a suit, up to
the instant that the process of the court issued.
If it were confined to proceedings begun or in contempla-
tion, then every communication would be unprotected which a
party makes with a view to his general defense against attacks
which he apprehends, although at the time no one may have re-
solved to assail him. But were it allowed to extend over such
communications, the protection would be insuflBcient, if it only
included communications more or less connected with judicial
proceedings ; for a person oftentimes requires the aid of pro-
fessional advice upon the subject of his rights and his liabilities,
with no reference to any particular litigation, and without any
other reference to litigation generally than all human afEairs
have, in so far as every transaction may, by possibility, become
the subject of judicial inquiry. " It would be most mischiev-
ous," s^d the learned judges in the Common Pleas, "if it could
be doubted whether or not an attorney, consulted upon a man's
title to an estate, was at liberty to divulge a flaw." *
4. Reasoit and foundation on which the doctrine of confi-
dential COMMUNICATIONS BESTS.
The foundation of this rule is not diflScult to discover. It
is hot (as has sometimes been said) on account of any particular
importance which the law attributes to the business of legal
professors, or any particular disposition to afford them protec-
tion, though certainly it may not be very easy to discover why
a like privilege has been refused to others, and especially to
medical advisers. But it is out of regard to the interests of
justice, which cannot be upholden, and to the administration of
• 2 Brod. rLAWFUL STATUTES A PEOOF OF THE
WISDOM OF WEITTEN CONSTITtmONS.
In America, written constitutions, conferring and dividing
the powers of government, and restraining the actions of those
in authority for the time being, have been established as securi-
ties of public liberty and private right. Still the agency of men
is necessary to the operation of the government, and the execu-
tion of its powers. The same frailties which cause men in power,
through which they happen in those countries where their own
judgment and conscience are their only guides and restraints,
to enact laws unjust or oppressive, may here also be expected
sometimes to have the same effects, although their acts should
involve a violation of the constitution. It is astonishing that it
does not oftener happen. That it does not, is a proof not only
of the essential value of written constitutions, but of the pro-
found wisdom with which, in ours, the powers of government
are distributed ; so as to secure in every department the agency
of public servants not only capable of comprehending, but so
solicitous of obeying the constitution in its true spirit, that they
will not palpably violate it, nor incur the danger of doing so by
the exercise of doubtful powers. Such praise is not only due to
the constitution for its wisdom, but the merit of scrupulously
observing it must be allowed to those who have been called to
legislate under it, and have not, in the whole course of the legis-
lation of nearly sixty years, been urged by passion or betrayed
by carelessness into the adoption of perhaps half a dozen acts
incompatible with it. When, unfortunately, such instances do
. HOKE V. HENDERSON, 357
occur, the preservation of the integrity of the constitution is con-
fided by the people, as a sacred deposit, to the judiciary. In the
discharge of that duty the approbation of the legislature itself
is to be anticipated ; for the principle of virtue which restrains
them from a known and willful violation of it, will induce them
to rejoice at the rescue of the constitution from their own in-
cautious and involuntary infraction of it. It remains now to
inquire whether the act under consideration be of that char-
acter.
9. The legal tentjee op defendant's oefice coNTiNirES dtje-
ING GOOD BEHAVlOE.
The office of clerk is recognized ia the constitution ; but the
tenure is not prescribed in any part of that instrument, and is
doubtless within the discretion of the legislature, Yery soon
after the adoption of the constitution, the act of 177T (Rev.
c. 115), for the establishment of courts of law, passed and
provided that the courts should appoint clerks of skill and
probity, who should execute official bonds and take certain
oaths of office ; and enacts in the fourth section, that the clerks
so appointed shaU hold their offices during their good behavior
therein. In 1806 a new law passed, which established a supe-
rior court of law and a court of equity in each county, and pro-
vided that the judges should appoint clerks, and clerks and mas-
ters in equity, of skill and probity, for the courts thereby estab-
lished, who should be residents of the county at the passage of
the act, and should continue to reside within the same during
their continuance in office, and be subject to the same rules, reg-
ulations and penalties as the clerks, and clerks and masters, of
the courts before established. Under this law, the defendant
was, in April, 1807, appointed. The legal tenure of his office is
therefore that created by the act of 1777, during his good be-
havior therein, and as additionally qualified by the act of 1806,
during his residence in the county of Lincoln. He has not
been found guilty of any misdemeanor in office, but has dis-
charged its duties faithfully, and it is not stated that he has re-
moved from the county, but that he was qualified, and therefore
still resides there. The act of 1832 removes him from office
and confers it on the applicant.
358 THOMAS RUFFIN.
10. Public libeett eequiees the peotection of peivate
peopeett, even as against the (joveenment itself.
The great object of society is to enable men to appropriate
among themselves the things which in their natural state were
common^ The purpose of the ordinary laws instituted by society,
is to protect the right to the things thus appropriated to one in-
dividual, from the acts and wrongs of other individuals. The
right is yet exposed to the action of the mass of individuals
composing the society ; and against that there can be no effect-
ual resistance, because it is sustained by physical force. There
is, nevertheless, an intermediate power between that of an in-
dividual, or a few individuals, on the one side, and the whole
society on the other, from which danger to individual right may
be apprehended. It is that power which resides in the person,
or the body of persons, on whom is conferred the authority
to act in the name and with the sanction of the supposed will
of the whole community ; which may be observed and used con-
trary to the will of the community, for the purposes of private
wrong. The body possessing that power we designate as the
government of a country, whether it consists of one or more
persons. The great and essential differences between govern-
ments, as distinguished from one another by their constitutions,
consist in the greater or less personal liberty of the citizen, and
the greater or less security of private right against the violence
or seizure of those who are the government for the time being.
It is true, the whole community may modify the rights which
persons can have in things, or, at their pleasure, abolish them
altogether. But when the community allows the right, and
declares it to exist, that constitution is the freest and best which
forbids the government to abolish the. right, or which restrains
the government from depriving a particular citizen of it. In
other words public liberty requires that private property should
be protected, even from the government itself.
11. YiNDIOATION OF PEIVATE EIGHTS PEODUCED THE AmEKIOAN
EEVOLUTION.
The people of all countries, who have enjoyed the semblance
of freedom, have regarded this, and insisted on it, as a funda-
mental principle. Long before the formation of our present
HOKE T. HENDERSON. 359
constitntion, it was asserted by our ancestors, on various occar
sions; and in one sense of it, its vindication produced the
revolution. At the 'beginning of that struggle, while the
jealousy of power was strong, and the love of liberty and of
right was ardent, and the weakness of the individual citizen
against the claims of unrestricted power in the government
was consciously felt, the people formed the constitution of this
State, and therein declared, " that no freeman ought to be taken,
imprisoned, or disseized of his freehold, liberties, or privileges,
or outlawed, or exiled, or in any manner destroyed or deprived
of his life, liberty or property, but by the law of the land." Bill
of Eights, sec. 10. By the fourth section, it is declared, " that the
legislative, executive, and supreme judicial powers of government
ought to be forever separate and distinct from each other."
12. Ceetain powers exeecised by BEmsH paeliament have
BEEN EXPEESSLT DENIED AmEEIOAN LEGIBLATOBS.
In absolute governments, whether hereditary or representa-
tive, the division of the powers of government is unimportant,
because that body in which resides the superior authority can,
at will, make it supreme, and absorb all the other departments.
It does not follow, therefore, that because the British parlia-
ment, whose supremacy is acknowledged, decides questions of
private right, and puts that decision, as it does its other deter-
minations, into the form of a statute, that whatever it does is
legislative in its nature. It can adjudicate, and often does sub-
stantially adjudicate, when it professes to enact new laws. The
faculty is expressly denied to our legislature as much as legis-
lation is denied to our judiciary. Whenever an act of the as-
sembly, therefore, is a decision of titles between individuals, or
classes of individuals, although it may in terms purport to be
the introduction of a new rule of title, it is essentially a judg-
ment against the old claim of right, which is not a legislative
but a judicial function.
13. An act adjudging as to peopeett eights is an assumption
OF JITDICIAL power.
It may not be easy to distinguish those powers, and to de-
fine each so that an act shall be seen at once to be referable to
360 THOl^AS EUFFIN.
the one or the other. But I think that where a right of prop-
erty is acknowledged to have been in one person at one time,
and is held to cease in him and to exist in another, whatever
may be the origin of the new right in the latter, the destruction
of the old one in the former is by sentence. If the act of 1832
had been confined in its terms to the clerkship of Lincoln, its
judicial character would be obvious. If it had said that Mr.
Henderson had forfeited his office, or had conveyed it to Mr.
Hoke, or that after forfeiture Mr. Hoke had been duly ap-
pointed, or was by that act appointed, or had been elected by
the citizens, and was approved by the legislature, and therefore
the one should go out and the other go in, it would be plainly,
as respects Mr. Henderson's title, an adjudication against it, al-
though the subsequent investment of the title in Mr. Hoke
would be legislative. Is the act the less of the former char-
acter because it does not recite an abuse by Henderson, or
other cause of forfeiture ? Is not such forfeiture assumed in
it ? For it is impossible, in the nature of things, that Mr. Hoke
can be rightfully put in, unless the other be rightftdly put out ;
and Mr. Henderson cannot rightfully be deprived, unless the
thing he claims was never property, or has ceased to be so ; or
unless he has parted from the property he had in it by forfeit-
ure or otherwise.
14 The statute partly lkgislattve and partly jmjiciAL m
ITS CHAEACTEE.
This act, however, is not restricted to one coimty, but ap-
plies generally to all the clerks in every county, and it is said
that for that reason it cannot be a judicial act. It certainly,
in that light, is wanting in the precision and direct operation
usually belonging to, and distinguishing judicial proceedings.
But nevertheless it partakes of that character in its operation
on the former officers. If valid, it compels the courts to de-
prive the officers without further inquiry before a jury into the
fact or legal sufficiency of any cause of f orf eitiire or removal.
If the legislature cannot itself adjudge a forfeiture directly,
still less, it would seem, ought they to command the courts to
remove without any cause whatever. Nor does the extension
of the sentence of expulsion to all the clerks in the State .vary
HOKE V. HENDEESON. 361
its character in this respect. The provision is not that of a
law prescribing a rule of property or modifying the extent of
interest, or the tenure prospectively of which these offices shall
be susceptible, or declaring that all property in them shall
cease by the abolition of' the offices themselves ; but it is a provi-
sion by which the office, preserved in the law and still regarded
as the subject of property, is taken, and merely taken from one
man and given to another. The only sense in which that
transaction cannot be called judicial, is that no court of justice
could have pronounced the judgment under the existing laws
upon the state of facts in this case. To have authorized such
a sentence by a court, further legislation would have been
necessary. It is true, then, that the act is not purely judicial.
But this is all that can be said in support of it. It is certainly
as true that it is not purely legislative ; for it leaves the nature
of the office as it was, in duties, powers, privileges, and emolu-
ments, and confers it on one person as a lucrative place, after
taking it from the former possessor who was before the ac-
knowledged owner. ■ As far as the act is legislative, it is within
the legitimate powers of the general assembly ; and it must be
admitted that the elections allowed or commanded by it are
constitutional and valid, and confer a good title on the per-
sons elected where a vacancy existed, and it may perhaps be
admitted that they are also valid, and confer a title whenever
the pre-existing rights of the incumbents shall expire by lapse
of time, or cease by surrender, or by forfeiture, for any cause
declared by law.
15. The legislatuee cannot assume judicial powers.
The question is not now upon the validity of the title under
the new elections to the office, if vacant, or when it shall in
future become so, but upon the right claimed under it to imme-
diate induction, notwithstanding the office is already fuU by a
previous legal appointment of another person. To sustain this
claim, the previous appointment must be vacated, or the officer
adjudged out. When the act proceeds to do this, it becomes
in that respect an adjudication. Although it is not purely so
in all its provisions, and may not in any be conclusively and
definitely so, because it does not decide inter jpartes by name,
302 THOMAS RUFFIN.
yet it partakes of that nature for the reasons already stated*
and the prohibition of the constitution is as imperative agaiast
the assumption of the Judicial power by the legislature, in com-
bination with their legislative authority, as if the act were a
single and simple one of direct adjudication. Creating a right,
or conferring it on one when not already vested in another, is
legislation. So prescribing the duties of officers, their qualifi-
cations, their fees, their powers, and the consequences of a
breach of duty, including punishment and removal, are all
political regulations, and fall within' the legislative province.
But to inflict those punishments, after finding the default, is to
adjudge ; and to do it without default is equally so, and still
more, indefensible. The legislature cannot act in that charac-
ter, and therefore, although their act has the forms of law, it
is not one of those laws of the land by which alone a freeman
can be deprived of his property.
16. Meaning of the teem " law of the land," wrrniN the
OONSTrrUTION.
Those terms " law of the land," do not mean merely an act
of the general assembly. If they did, every restriction upon
the legislative authority would be at once abrogated. For what
more can the citizen suffer than to be " taken, imprisoned, dis-
seized of his freehold, liberties and privileges, be outlawed,
exiled and destroyed, and be deprived of his property, his lib- .
erty and his life," without crime ? Yet all this he may sufEer
if an act of assembly simply denouncing those penalties on par-
ticular persons, or a particular class of persons, be in itself a
law of the land within the sense of the constitution ; for what
is, in that sense, the law of the land, must be duly observed by
all, and upheld and enforced by the courts.
In reference to the infliction of punishment and divesting of
the rights of property, it has been repeatedly held in this State,
and it is believed in every other of the Union, that there are
limitations upon the legislative power, notwithstanding those
words ; and that the clause itseK means that such legislative
acts as profess in themselves directly to punish persons, or to
deprive the citizen of his property, without trial before the ju-
dicial tribunals, and a decision upon the matter of right, as
HOKE V. HENDERSON. 363
determined by the laws under which it vested, according to the
course, mode and usages of the common law, as derived from
our forefathers, are not effectually "laws of the land," for
those purposes. Although in some instances the principle may
have heen misapplied, yet it seems in every case in which it
hath come into discussion, to be admitted to be a sound one,
and the true import of the constitution. It was early asserted
in an anonymous case in 1 Hayw. 29. It was acted on again in
Den on dem. Bayard v. Singleton (Martin's Cases, 48), in 1787,
in which it was held that the act for conferring titles derived
by purchase from the commissioners of confiscated property,
which directed that suits brought by claimants of such property
should be dismissed by the court on affidavit of the defendant
that he was a purchaser from the commissioner, was void. It
was elaborately considered in the case of the tlniversity v. Foy,
1 Murph. 58, 2 Hayw. 310 ; and declared again in Den on dem.
of Hamilton v. Adams, 2 Murph. 161. In AUen v. Peden, 2 Car.
Law, 638, it was distinctly decided that an act of the legisla-
ture emancipating a slave against the will of his, owner was
plainly in violation of the fundamental law of the land, and so
void. And in Doe on dem. of Robinson v. Barfield, 2 Murph.
391, that a deed of a married woman, not executed according
to the existing law, did not pass the title to lands, notwith-
standing an act of the legislature passed after her death, enacted
that it should be good and effectual for that purpose.
17. The lkgislathee cannot teansfbb pefvate peopeety
feom one man to anothee.
It thus appears, that in respect to every species of corporeal
property, real and personal, the principle has been asserted and
applied. It has been adjudged, that the legislature caimot
seize the land or slaves of the citizen from him, and confer them
on another ; and in the case of Allen v. Peden, it was applied
in a remarkable manner, and to the extent that the legislature
could not enact that the property in a slave should cease and
exist in no person, upon the ground, I presume, that it was not
a general provision for the extinction of slavery, but the de-
priving of a single citizen of his property, without any motive
of public utility, or view to general expediency.
364 THOMAS RUFFIN.
18. A PUBLIC OFFICE 18 PEOPEETT WITHIN THE LEGAL DEFINI-
TION OF THE TEEM.
The sole inquiry that remains is, whether the oflBce of which
the act deprives Mr. Henderson, is property. It is scarcely
possible to make the proposition clearer to a plain mind, accus-
tomed to regard things according to practical results and real-
ties, than by barely stating it. For what is property ; that is,
what do we understand by the term ? It means, in reference to
the thing, whatever a person can possess and enjoy by right ;
and in reference to the person, he who has that right to the ex-
clusion of others, is said to have the property. That an office
is the subject of property thus explained, is well understood by
every one, as weU as distinctly stated in the law books from the
earliest times. An office is enumerated by commentators on the
law among incorporeal hereditaments ; and is defined to be the
right to exercise a public or private enjoyment, and to take
the fees and emoluments thereunto belonging. 2 Bl. Com. 36.
A public office has been well described to be this : When one
man is specially set by law, and is compellable to do another's
business against his will and without his leave, and can demand
therefor such compensation, by way of salary or fees, as by law
is assigned ; to the doing of which business no other person but
the of&cer, or one deputed by him, is legally competent. Garth.
478 ; Leigh's Case, 1 Munf . 476. Th^'t the purpose of creating
public offices is the common good, is not doubted. Hence,
most of the rules regulating them have a reference to the dis-
charge of the duties, and the promotion of the public con-
venience; they zxe pro commodo popvli. Hence they are not
the subjects of property in the sense of that fuE and absolute
dominion which is recognized in many other things. They are
only the subjects of property as far as they can be so in safety
to the general interest involved in the discharge of their duties.
This principle demands that different rights of property should
be recognized in different offices. It is one of the ordinary
rights of property to alien and dispose of it at pleasure ; but
that is inadmissible in public offices, because the public require
a responsible person to answer for defaults. Besides, the
power of alienation is not the test of property ; for doubtless it
is within the scope of legislative authority to restrict it or to
HOKE V, HENDERSON. 365
deny it, as in the laws which prescribe the ceremonies necessary
to the validity of wiUs, or conveyances of infants and married
women, and which deny altogether the power of conveying, and
which interdict all conveyances made in mortmain.
It is another ordinary right of property to have the power of
substituting another person to manage it, or to let it lie idle and
unmanaged. But the former is not allowable in some offices, and
the latter in none. The chief executive office and judicial offices
cannot be delegated, while subordinate ministerial ones may ;
for there would be no security that, in the former cases, the dele
gate would be competent, and no responsibility of the superior
would be adequate to answer the consequences ; though in the
latter it is otherwise. But non-user is punishable in all public
officers, and at the election of the public is a forfeiture. So a
misdemeanor or corruption in office may be punished by judi-
cial sentence in any manner prescribed by law, including amo-
tion as for a forfeiture. These are all restrictions and penalties
to secure the public service^ which is the object in creating the
office. But with these limitations, and the like, a public office
is the subject of property, as every other thing corporeal or in-
corporeal, from which men can earn a livelihood and make
gain. The office is created for pubKc purposes, but it is con-
ferred on a particular man, and accepted by him as a source of
individual emolument. To the extent of that emolument it is
private property, as much as the land which he tills, or the
horse he rides, or the debt which is owing to him. Between
him and another man, none will deny the right of property.
For if one usurp an office which belongs to another, the owner
may have an action for damages for the expulsion, for the fees
of office received, and a remedy by quo warranto, to inquire
into the right of the usurper, and by mandamus, to be himself
restored. When we find these remedies established to enforce
the right of admission into office, to secure the possession of it
and its emoluments, we can no longer doubt that, in law, an-
office is deemed the subject of property, and valuable property,
to the officer, as well as an institution for the convenience of
the people. If it be so, it falls within those provisions of the
constitution which secure private interests; and cannot be
366 THOMAS RUFFIN.
divested without some fault of the offiper, or the ceaaer of the
oflSce itself.
These are the general principles that lead the court to the
conclusion that the act of assembly is inyalid.
In opposition to them, several arguments have been urged,
-which the court has anxiously considered, but without a change
of opinion.
19. Public offices always subject to the conteol of the
legislatuee.
It was principally urged that, whatever may be the rule of the
common law, yet in this country, and under our republican ia-
stitutions, public offices cannot be admitted to be private prop-
erty ; but the offices must be regarded as created solely for the
public use, and therefore as subject to abolition when required
by the general interest, of which the legislature is exclusively
to judge. This argument was illustrated by the additional
observation, that by the contrary doctrine, a system requiring
officers for its execution once fixed, would be unchangeably
j)ermanent, the absurdity of which was strongly insisted on
and proved by the various changes in our judiciary system,
which have all been acquiesced in, without a scruple of their
constitutionality.
The court does not perceive the least reason to doubt the
validity of any one of those laws, nor to question any part of the
propositions stated by the counsel, except that offices cannot be
the subjects of private property. Undoubtedly, the creation of
an office is a question of political expediency ; so is the qualifi-
cation of the officer, and so are his duties, perquisites, punish-
ment, and the tenure by which he holds his office. By conse-
quence, they are the subject of legislative regulation. And as
the creation, so is the continuance of the office, a -question of
sound discretion in the legislature, of which a court cannot
question the exercise. If the legislature increase his duties
and responsibilities, or diminish his emoluments, he must sul|)-
mit, except in those eases in which the constitution itself has
declared the duty and fixed the compensation ; because in the
nature of things, those are the subjects of such regulations as
the general welfare may from time to time dictate, and the
HOKE V. HENDERSON. 36T
office must therefore have been conferred and accepted subject
to such regulation.
The legislature is charged with the duty of securing the rights
of suitors, and of all persons who have their business done only
.by the clerks, againgtloss through the person thus appointed by
the law, as well as with the duty of securing a reasonable com-
pensation to the officer for histime and labor. It is competent,
therefore, to call for large official bonds, and to increase or
diminish the fees ; for all that concerns the interest of the com-
munity at large. So also it is yielded, for the like reasons, that
the ofElce itself, when it ceases to be required for the benefit of
the people, may be abolished. There is no obligation on the
legislature or the people to keep up an useless office, or pay an
officer who is not needed. He takes the office with the tacit
xmderstanding, that the existence of the office depends on the
public necessity for it ; and that the legislature is to judge of
that.
30. An office mat be abolished, but while m existence is
A subject OT" peopeett.
But while these postulates are conceded, the conclusions
drawn from them cannot be admitted. They are, that there
cannot be private property in public offices ; and if there be,
that the officer may be discharged at the discretion of the legis-
lature. Neither of these propositions is believed to be correct.
The former has been already considered at large ; and to what
has been said may be added the provisions in our own constitu-
tion, guaranteeing adequate salaries to certain officers, and de-
claring that no person shall hold more than one lucrative office
at one time. The latter by no means follows from the prem-
ises. It may be quite competent to abolish an office ; and true,
that the property of an officer is thereby, of necessity, lost.
Yet it is quite a different proposition that, although the office
be continued, the officer may be discharged at pleasure, and his
office given to another. The office may be abolished, because
the legislature esteem it unnecessary. The common weal is
promoted by that law ; at least, it is the apparent object, and
must be deemed to be the real one. But while the office re-
mains, it is not possible that the public interest can be con-
368 THOMAS RUFFIN.
cemed in the question, wlio performs the services incident to
it. The sole concern of the community is, that they should be
performed, and well performed, by somebody. That they
should be done by one particular person more than by another,
. is not therefore a matter of expediency in any sense ; and hence
it cannot be the subject of legislation, that one man, who has
the faith of the public pledged *o him, that he should have the
employment for a certain term, and who has, upon that faith,
entered upon the employment, and faithfully executed it,
should be deprived of it and supplanted by another man, who
is to do and can do the community no other services than those
already in a course of performance by the former.
» 21. DlSTTNCTION BETWEEN THE ABOLIIION OF AN OFFICE AND
THE TEANSFEE OF ITS EMOLUMENTS.
It is true that a clerk, like aU other ofiBcers, is a public
servant, but he has also a private interest. He is not merely a
public servant and political agent. If he were, and had no in-
terest of his own, he might be discharged at pleasure. The
distinction in principle between agencies of the two kinds is
obvious. The one is for the public use exclusively, and is often
neither lucrative nor honorary, but is onerous. To be deprived
of such an office is often a relief, and never can be an injury.
The other is for the public service, conjointly with a benefit to
the officer. To be deprived in this last case is a loss to the
officer. If it arise by the destruction of the office, it is a loss
without an injury, because the right of the officer is necessarily
dependent upon the existence of the office, as an establishment
in the political economy of the country. But if it arises from
the transfer of the emoluments, the loss then becomes an injury ;
because that which belongs to one man, as a thing not simply
of ideal but of real value, is taken from him and given to an-
other. The distinction which I am endeavoring to express and
explain, may be f uUy exemplified by the difEerence between the
public agency exercised in appointing a clerk, and that exer-
cised in discharging the duties of a clerk. By the law, the
justices of the superior courts and the justices of the county
courts were authorized to appoint the clerks of their respective
courts. That power is an office in the extended sense of that
HOKE V. HENDERSON. 369
word, whicli originally signifies duty, generally ; but it is not a
lucrative or a valuable office. It was a duty to be performed
exclusively for the public convenience, and with reference to it
alone, without any benefit, immediate or remote, to the judges
and justices as individuals, who were required by oath not to
make any private advantage from it, but to give their voice for
the appointment of only such persons as appeared to them to
be sufficiently qualified, and to do that without reward or the
hope of it, or any private motive whatsoever. The courts were
in this respect not exercising a judicial function, nor serving
for emolument, but were the mere ministers of the law, and
naked agents of the body politic, to effect an end purely public.
Such political agents the legislature can discharge whenever it
shall appear to them that the end can be better effected through
other agents.
22. Wisdom of making the tenure op the judicial office
dtteing good behavior.
But when the country has through those agents appointed
a person to the office of clerk, though he also is a servant of the
public, yet he is something more than a naked, uninterested,
political instrument. For the term for which the law assures
the office to him, he claims, and can claim, to continue to be
the agent of the public to discharge the duties of that place,
while there are duties remaining to be discharged, and he is
ready and willing to perform them. Nor is there anything in
our constitution, the form or nature of our government, to
change the character of this right. There is no reason why a
public office should not be given during good behavior. The
services are what concern the coimtry ; and they may be expected
to be best done by those whose knowledge of them, from time
and experience, is most extensive and exact. Some offices can,
under the constitution, be granted or conferred for no other
term but that of good behavior. Such is the provision re-
specting the office of a judge and justice of the peace. Cer-
tainly that is not introduced solely for the benefit of the persons
holding those offices, but upon the great public consideration,
that he who is to decide controversies between the pow-
erful and the poor, and especially between the government and
24
370 THOMAS RUFFIN.
an individual, should be independent, in the tenure of his
office, of all control and influence which might impair his im-
partiality — whether such control be essayed through the frowns
of a bad man, or through the adulation of an artful one, or such
influence be produced by the threats of the government to
visit non-conformity to their will by depriving him of office,
or rendering it no longer a means of livelihood. For these
reasons, the constitution has fixed the tenure of the judicial office
to be during good behavior. The people have said that the
liberty and safety of the citizen required that it should not be
held upon any other tenure. It is clear, therefore, that our
ancestors did not entertain the notion that such a tenure was
not consistent with our institutions generally.
23. Changes m the tenuee of office must operate peo-
SPECTIVELY.
It is true, that it does not put clerks upon the same basis.
There was not the same reason for it. The public interest did
not require that any law should be laid down to the legislature
as to the tenure of those offices ; but it was left to their discre-
tion, as expediency might from time to time require it to be
altered. It was, therefore, in the power of the legislature to
confer such offices for life, or during good behavior, or during
pleasure, or for any term of years, determinable with life at an
earlier day. For an absolute term of years it could not be
granted ; as upon the death of the officer, it would in that ease
go to his executor, which would be inadmissible, since the office
concerns the administration of justice, and an incompetent
person might be introduced into it. It, however, pleased the
legislature to make the tenure during good behavior. When
they did so, it was quite within their competency to alter it sub-
sequently. But such alterations must operate prospectively,
and as regulations for future appointments and future enjoy-
ment. As to those to whom the grant was made for life, an
estate, a property vested ; which cannot be divested without de-
fault or crime.
This course of reasoning in some degree anticipates some
other arguments urged for the plaintiff ; which, however, it may
be more becoming to state distinctly, and consider more par-
ticularly.
HOKE T. HENDERSON. 371
It was said, that as the tenure was necessarily at the will of
the legislature, he who took the office, received it subject to
fiuch alteration of tenure, as well as of duties and emoluments,
as the legislature might prescribe. And the distinction between
the tenure of the judicial office as being constitutional and
unalterable, and that of a clerk as being statutory, and there-
fore alterable, was strongly urged.
24. Distinction between offices cebated by the constitu-
tion AND BY STATUTE CONSIDEEED.
The distinction is admitted, but not the argument derived
from it. The constitution restrains the legislature from ap-
pointing a judge or justice of the peace, except during good
behavior. It does not restrain them in respect to a clerk, but
allows that office to be given for a longer or a shorter term, as
may be most expedient. The question is, what is the effect of
a grant for a particular period ? Can the duration be afterwards
lessened to the prejudice of a grantee ? We think not ; because
he acquires a property. That it may be lessened in reference
to new appointments, cannot be contested ; but that it can, in
respect to existing ones, involves the propositions already dis-
cussed, that an office is not the subject of private property, and
that private property may be seized without judicial sentence,
and even without compensation. This property does not differ
f roin that in other subjects, so far as it is allowed at all. In
lands there may be estates in fee, for life or for years. The
legislature may grant the public domain in any of those estates ;
but if it please them once to grant it, the grant is irrevocable,
and the estate cannot be resumed. It becomes the land of a
citizen, and cannot be taken from him by a law, without the ac-
tion of his peers, as a jury, to pass on the facts, and of a court to
determine the title. It is further said that the distinction be-
tween these offices, as derived from the constitution and a stat-
ute, is exhibited in the power to alter the compensation. That
the clerk must be considered as holding office at the will of the
legislature, while thS fees depend entirely on their pleasure;
whereas, a judge, who holds his office independent of that will,
is necessarily entitled to his salary, as stipulated to be paid to
him. Upon this latter proposition, a person in my situation
372 THOIUS RtTFFIN.
cannot be expected to express, and cannot properly express, an
opinion. But taking it to be true, it does not establish the
point to which it is adduced. If it be true, it arises as an inci-
dent to the independent tenure of the judicial office fixed by the
constitution.
No such object was in view, in respect of a clerical office.
All that is intended is, that the legislature shall allow such fees
as are adequate to the livelihood of the clerk, and as a compen-
sation for his labor. It is supposed that a sense of justice will
ever influence the legislature to do this, and, if 'not, that the
public interest will. For this argument assumes that the office
is still necessary to the public convenience, and continues, by
law, to exist. Without a competent officer, with a competent
livelihood, the office must be unfilled, except by compulsion,
and if occupied, the duties will be unperformed. 'Eo danger
therefore could have been apprehended, that the legislation on
this subject would be unjust to the officer, who, in the line of
his official duty, can never be called to do an act which will
render him obnoxious to the government or the men of power
of his day. Nor was the danger more to be expected, that the
public interest would suffer by the legislature not providing
proper and sufficient offices, in which the business of the citizens
might be transacted ; and if such inconvenience should at any
time arise, it could be only temporary, and would be redressed
upon another election of representatives. The analogy between
those offices, in this respect, does not therefore exist as supposed ;
and it may well be that the legislature can regulate the emolu-
ments, and prescribe the duties and punishments of the clerk,
without possessing the power of depriving him of office, merely
for the sake of benefiting another person.
Nor do those powers, nor that of abolishing the office alto-
gether, which are readily conceded to the legislature, involve the
further one of depriving the officer of his office, while it continues.
25. The legislatuee not peesttmed to willettllt violate
THE CONSTmjTION.
It has been urged that it is vain and futile for the court to
refuse to execute this law, and to uphold Mr. Henderson's title,
because if the legislature be determined in their purpose, they
HOKE V. HENDERSON. did
can be still more unjust by destroying the office itself, or
taking away the fees.
There are several answers to that argument. The abolition
of the office depends upon the necessity for it in the opinion of
the legislature and of the people ; if useful, doubtless it will be
preserved ; and if it be not, private interest must yield to gen-
eral convenience. But admitting it to be necessary, and that
Mr. Henderson is constitutionally entitled to it during his good
behavior, it is not to be expected nor apprehended ; it cannot
be imputed to the legislature that it will, for the indirect pur-
pose of expelling by starvation, render the office more onerous,
without adequate compensation, or take away the compensation
altogether, while the duties remain as they are. If such a law
were to pass, it would itself be unconstitutional — ^that being the
object. If the purpose were declared in the law in such terms,
that the court could say that the act was passed upon no other,
the same duty would then be imposed on the court which we
are now discharging. But if the law be couched in general
terms, so that the court, which cannot inquire into motives not
avowed, could not see that the act had its origin in any other
consideration but public expediency, and therefore would be
obliged to execute it as a law ; still it would not, in reality, be
the less unconstitutional, although the court could not pro-
nounce it so. It would be law, not because it was constitu-
tional, but because the court could not see its real character,
and therefore could not see that it was unconstitutional. It
would not be constitutional as a provision which deprives a
citizen of his property, but it would be held so, because we
should be obliged to regard it as not having such a provision.
The argument is therefore unsound in this : That it supposes
(what cannot be admitted as a supposition) the legislature will
designedly and willfully violate the constitution, in utter disre-
gard of their oaths and duty. To do, indirectly, in the abused
exercise of an acknowledged power, not given for, but perverted
to that purpose, that which is expressly forbidden to be done
directly, is a gross and wicked infraction of the constitution ; and
the more so, because the means resorted to deprive the injured
person, and are designed to deprive him, of all redress, by pre-
venting the question becoming the subject of judicial cognizance.
374 THOMAS RUFFIN.
26. Abuses of legislative powee beyond the oonteol oi" the
judiciakt, not to be peesttmed.
But that is not the only test of the constitutionality of an
act of the legislature. There are many laws palpably uncon-
stitutional, which never can be the subjects of legal contro-
versies. Not to allude to the causes which have been recently
the themes of the bitterest political controversies, several in-
stances of much simplicity may be adduced from our State gov-
ernment. The constitution of this State provides, that the
governor, judges, attorney-general, treasurer, and other officers
shall be elected by the general assembly by ballot, and that
certain of them shall have adequate salaries during their con-
tinuance in office. Suppose the legislature to refuse to elect
those officers ; or to give them salaries ; or, after assigning them
salaries in a statute, to refuse to lay taxes, or to collect a rev-
enue to pay them. All these would be plain breaches of con-
stitutional duty ; and yet a court could give no remedy, but it
must be left to the action of the citizens at large to' change un-
faithful for more faithful representatives. Yet no one will say
that the legislature can, by law, remove the governor or a judge,
or any other head of a department, because they can unconstitu-
tionally refuse to provide salaries for them, and the courts cannot
compel the raising of such salaries. Nor can it be said, because
there cannot be such compulsion, that therefore the law is con-
stitutional. All that can be said is, that such is the imperfec-
tion of all human institutions, that it is not possible to antici-
pate and provide against all vices of the heart, more than all
errors of the head ; and that after every precaution, much re-
liance must be placed in the integrity of our fellow-men, and
that such confidence is liable to be abused. But I think it may
safely be assumed, as is done in the constitution, with all the
responsibilities of the legislative representatives to their con-
stituents under frequent elections, with all the clear declarations
of the rights, of the citizen in that instrument, with the division
of the powers of government made in it, whence arise the pow-
ers and the duty of the judiciary to ascertain the conformity of
a statute -with the constitution ; that with all these guards
against abuse, the danger of a willful and designed violation is
HOKE V. HENDERSON. 375
never to be apprehended. No arguments, therefore, in favor
of the necessity of executing a particular act, apparently in-
consistent with the constitution, can be drawn from any sup-
posed ability of the legislature to effect the same end by indi-
rect means, which are beyond the cognizance and control of the
judiciary. When such an abuse shall occur, it will devolve on
the people themselves to correct it, and not on us as a portion
of their subordinate agents.
27. The eight to resign an office consideeed.
I have omitted to consider, in its proper place, another objec-
tion made by the counsel for the defendant, and must therefore
now take notice of it. It has been said, that the obligation to
continue in office ought to be mutual, to be complete, and that
such is not the case, because the officer may, at his pleasure,
resign. The argument on behaK of the power to discharge an
officer, assumes the right of the officer to discharge himself ;
and in that point differs entirely from the law as it stands in
the conception of the court. An officer may certainly resign ;
but without acceptance his resignation is nothing and he
remains in office. It is not true that an office is held at the
will of either party. It is held at the will of both. Generally
resignations are accepted ; and that has been so much a matter
of course, with respect to lucrative offices, as to have grown into
a common notion that to resign is a matter of right. But it is
otherwise. The public has a right to the services of all the
citizens, and may demand them in all civil departments, as well
as in the mOitary. Hence there are on our statute book several
acts to compel men to serve in offices ; as the act of 1741, which
inflicts a penalty on one appointed a constable, and neglecting
or refusing to qualify ; the act of 17Y7, which compels a sheriff
to serve at least one year; the various acts directing the ap-
pointment and services of overseers of the road ; and the recent
statutes restraining certain militia officers from resigning under
five years, and the like. Every man is obliged, upon a general
principle, after entering upon office, to discharge the duties of
it while he continues in office, and he cannot lay it down until
the public, or those to whom the authority is confided, are
satisfied that the office is in a proper state to be left, and the
376 THOMAS RUFFIN.
officer discharged. The obligation is, therefore, strictly mutual,
and neither party can forcibly violate it. If, indeed, the pub-
lic change the emoluments of office, it is another question,
whether that be not an implied permission for the officer to
retire at his election, unless the contrary be provided in the law.
For I cannot doubt that the legislature has the perfect power,
if it chooses arbitrarily to exercise it, of compelling, not indeed
a particular man designated in a statute by name, but any citi-
zen elected or appointed, as by law prescribed, to serve in office
even against his will. I have mentioned some instances in
which it is done : and there is no reason why, making due com-
pensation, it may not be done as to all offices.
It is true that non-user of an office is a forfeiture of it ; and
that is spoken of as a penalty and punishment in itself. But it
is not the only punishment, and is a punishment only when
the office is itself valuable. Such a forfeiture does not dis-
charge the officer, but at the election of the sovereign ; for that
would be to say that an onerous office could not be conferred.
The officer may be punished by removal for non-user as a for-
feiture, or he may be kept in office and punished personally for
non-user as a crime.
28. Removal feom office and release feom duties works
a mateeial injuet.
It is lastly said, that it can be no injury to remove an officer,
because his salary is taken to be but a just compensation for
his time and labor, and when the public do not take the latter,
the officer can have no demand for them. This position is
rather an artful than a solid or fair argument. It is true
that to the officer is left the command of his own time, and the
application of his own labor, and the fruits of it. But it is not
true that he does not suffer by being deprived. Of what is he
deprived ? Of an employment, the immediate source of liveH-
hood, the preparation for which has been the great business, it
may be, of his life, to which he has served a long apprentice-
ship, and to which he has devoted himself, abandoning other
lines of life, or other roads to fortune which were once open to
his free choice. True he is free to work at other employments,
but he is fit for none ; he knows but this. He is Sn the situa-
HOKE T. HENDERSON. 377
tion of one bred to the agriculture of our country, to whom the
legislature should say : " Till the ground no more ; go and spin
silJi, or weave muslin." His labor is not the subject of con-
scription, but he hangs a burden on himself, because the only
employment to which he is competent is denied him. The loss
is therefore undeniable. The only question is, whether it be
such an one as the legislature can rightfully inflict. We think,
as already stated, that they may, if it be merely the incidental
consequence of a general law really passed for the purpose of
abolishing useless offices, as a species of governmental institu-
tion. But that they cannot, if the offices are retained, and the
officer is deprived of his property therein, without default and
without trial, for the single and sole purpose of giving it to
another.
It became the court to consider this subject dispassionately
in all its bearings. We have done so without a desire to swerve
to either side from the direct line of the law and the constitu-
tion, but with the utmost respect for the opinions and intentions
of those from whom we differ. But having reached the conclu-
sion above stated, upon which no member of the court doubts,
we are obliged to pronounce it as a duty not to be evaded ; and,
being a known duty, we do so without reluctance, in support
of the right of the citizen, and of the inviolability of the funda-
mental law of the land.
The judgment of the Superior Court must therefore be
affirmed.
WISDOM AND JUSTICE OF THE STATUTE OF
LIMITATIONS.
HON. JOSEPH STORY.
I own myself to be one of those who consider the statute of
limitations a highly beneficial statute, and entitled, as such, to re-
ceive, if not a liberal, at least a reasonable construction, in further-
ance of its manifest object. It is a statute of repose; the object
of which is, to suppress fraudulent and stale claims from spring-
ing up at great distances of time, and surprising the parties or
their representatives, when all the proper vouchers and evidences
are lost, or the facts have become obscure, from the lapse of time
or the defective memory, or death, or removal of witnesses. The
defense, therefore, which it puts forth is an honorable defense,
which does not seek to avoid the payment of just claims and de-
mands, admitted now to be due; but which encounters, in the
only practicable manner, such as are ancient and unacknowledged;
and, whatever may have been their original validity, such as are now
beyond the power of the party to meet, with all the proper vouch-
ers and evidence to repel them. The natural presumption cer-
tainly is, that claims which have been long neglected are un-
founded, or at least are no longer subsisting demands. And this
presumption the statute has erected into a positive bar. There is
wisdom and policy in it, as it quickens the diligence of creditors,
and guards innocent persons from being betrayed by their ignor-
ance, or their over confidence in regard to transactions which have
become dim by age. Yet I well remember the time when courts
of law exercised what I cannot but deem a most unseemly anxiety
to suppress the defense; and when, to the reproach of the law,
almost every effort of ingenuity was exhausted to catch up loose
and inadvertent phrases from the careless lips of the supposed
debtor, to construe them into admissions of the debt. Happily,
that period has passed away, and judges now confine themselves to
the more appropriate duty of construing the statute, rather than
devising means to evade its operation.
It appears to me, also, that it is the duty of the court to adhere
to the very terms of the statute, and not upon imaginary equitable
considerations, to escape from the positive declarations of the
text. No exceptions ought to be made, unless they are found
therein; and if there are any inconveniences or hardships grow-
ing out of such a construction, it is for the legislature, which is
fully competent for that purpose, and not for the court, to apply
the proper remedy. [Spring v. Gray, 5 Mason, 533.1
[378]
ROGER BROOKE TANEY.
ON THE NATURE AND CHARACTER OF CORPO-
RATE GRANTS.
Chakles River Bbid&e v. Warren Bridge.— U. S. Su-
preme Court, January Term, 1837.
[11 Peters, 420.]
Analysis of Opinion of Chief Justice Taney.
I. Narration of the facts. — History of the
Charles River Bridge,
a. History of the Warren Bridge.
3. History of the litigation.
4. Grounds relied upon by the plaintiffs.
5. Retrospective legislation not necessarily
unconstitutional .
6. Plaintiffs' charter must contain an ex-
press, not an implied contract.
7. The ferry right in Harvard College ex-
tinguished, not transferred.
8. Theferryrighthavingbeen extinguished,
an equitable assignment could not be
claimed.
9. No assignment created by the annual pay-
ment of jC^oo.
10. The ferry franchise, and that of the
bridge, independent and separate.
11. Rule of construction as to corporate
grants. — Nothing passes by implica^
tion.
12. Rule the same in England and the United
States. — Authorities collated.
13. No sovereign power can be surrendered
by implication. — The taxing power not
distinguishable in this regard.
14. Extent and scope of plaintiffs' grant.
15. Plaintiffs' charter not impaired by the
grant to the Warren Bridge.
16. The act extending plaintiffs' charter con-
sidered.
The doctrine of implied grants contrary
to public policy.
The doctrine of implied grants ruinous in
its results to the public welfare.
^7
18.
Roger Brooke Taney, of Maryland, fifth Chief Justice of the Supreme
Court of the United States, came upon the bench in 1837, as the successor of
the illustrious John Marshall of Virginia. These distinguished men presided
over the judicial department of the government successively from the time
of John Adams, its second president, to the administration of Abraham Lin-
coln, a period of more than three score years. They may justly be regarded
as typical exponents on either side of the great question which arose upon
the adoption of the constitution as to the fundamental character of the gov-
ernment which had been formed under that instrument — a question which
divided the country, provoked civil war, and was ultimately settled by the
sword. The former gave to the constitution that liberal construction which
imparted life and vigor to the federal government; the latter interpreted it
[379]
380 ROGER BROOKE TANEY.
by those rules of strict construction, in harmony with the idea of State sov-
ereignty, which finally culminated in the war for the preservation of the
Union.
During the time m which Marshall and Taney presided upon the bench,
oiu' country fought the second war with England; the war with Mexico; and
had nearly reached the final campaign in the great civil war, waged to deter-
mine whether the doctrines of Marshall or Taney should prevail.
But the views advanced by these great men diflEered only with regard to
the rules of construction to be applied to the federal constitution, and this
diversity of opinion was confined to it alone. As between the State and a
private corporation, both agree that the rule was rigid as against the corpo-
ration and in favor of the State. In such a grant nothing could pass by im-
plication. But as between a great people without government, and the grant
of power creating such government, the rule of construction Marshall held
to be in favor of the government, only in so far as became absolutely neces-
sary to preserve in its integrity the government thus created.
In the constitution Marshall recognized an instrument springing from
the people, intended to mold a nation, and define and limit its powers; and
therefore the grant it contained conferring authority "to make all laws
which shall be necessary and proper for carrying into execution " the powers
granted by it, he construed to impart life and vitality to the government,
rather than measure it by those rules of strict construction applicable only
to private grants, which would disarm the government of the powers neces-
sary to accomplish the ends of its creation. He interpreted it as.a grant of
power from the people, rather than a grant of power from the States.
These doctrines, entertained respectively by these famous jurists, are
illustrated in McCulloch v. The State of Maryland, ante, and the case here
given; the former defining the rule of construction sustaining the powers of
the federal government, which is in its nature a public grant ; the latter de-
claring the rule of construction as to a private grant, or a grant from a State
to a private corporation.
Taney, in this case, reasons that the State cannot be presumed to surren-
der any of its powers by implication, because the whole community have an
interest in preserving those powers undiminished, and applies the rule in
favor of a State as against a private corporation. MarshaU, in the case
above cited, applies a similar doctrine In favor of the federal government as
against a State. "When the legislature of Maryland attempted to tax an in-
stitution created by Congress as a means of executing its legitimate powers,
he pronounced the law creating such a tax unconstitutional, because it would
be conceding to the States a power which might be used to destroy the gov-
ernment itself. And what language could be employed to illustrate this doc-
trine, advanced by Marshall, more appropriate than that employed here by
Mr. Justice Taney, when he says: "The continued existence of a govern-
ment would be of no great value, if, by implications and presumptions, it
was disarmed of the powers necessary to accomplish the ends of its creation;
and the functions it was designed to perform, transferred to the hands of
privileged corporations."
The case of the Charles River Bridge grew out of the following facts:
The plaintiffs were incorporated by an act of the legislature of Massachu-
CHARLES RIVER BRIDGE ,. WARREN BRIDGE. 381
setts on the 9th of March, 1785, under the name of " The Proprietors of the
Charles River Bridge," and authorized to erect a bridge over the Charles
river, a navigable stream between Boston and Charlestown, and to receive
certain tolls, their charter to continue for a period of forty years. In 1793
this charter was extended thirty years, or seventy years from the opening of
the bridge (June 17th, 1786); and at the expiration of that time the bridge
■was to become the property of the State. On the 9th of November, 1636,
the governor of Massachusetts, by authority of the Court of Assistance, had
granted to a particular individual the right to establish a ferry over the
Charles river, between Boston and Charlestown, and to take certain tolls,
which right, having expired in 1650, was granted by the legislature to Har-
vard College, and was held by it until 1785, when authority was given to the
plaintiff, as above stated, to buUd a bridge where the ferry stood, they being
required to pay £200 annually to Harvard College during the lifetime of their
charter.
In 1838, the defendants were incorporated under the name of " The Pro-
prietors of the Warren Bridge," and authorized to construct a bridge over
the Charles river, within a few rods of plaintiffs' bridge. The charter fur-
ther provided, that as soon as the proprietors had been reimbursed for build-
ing this bridge it should become free, and be and remain the property of the
State, but this period of reimbursement was not to exceed six years from the
time the company commenced receiving tolls.
As soon as the bill incorporating the defendant company was passed, the
plaintiffs filed their bill in chancery in the Supreme Court of Massachusetts,
praying for an injunction to prevent the erection of the Warren Bridge, and
for general relief. While the action was pending, defendant's bridge having
approached completion so that persons passed over it, as was alleged, thiis
avoiding the payment of the toll which would otherwise have been received
by plaintiffs, a supplemental bill was filed, alleging these facts.
The court below dismissed plaintiffs' bill, being equally divided in opin-
ion, and an appeal or writ of error was taken to the Supreme Court of the
United States. The case was argued before Chief Justice Marshall and his
associates, and was held under advisement for a year, when, a difference of
opinion having arisen among the judges, a re-argument was ordered, which
was heard before Chief Justice Taney; Marshall having died in the mean-
time. The judgment below, dismissing plaintiffs' bill, was aflBrmed, and the
act incorporating Warren Bridge was declared constitutional.
PlaintifEs claimed that the act authorizing the erection of the Warren
Bridge was in violation of their corporate rights. That their charter was a
contract with the State, conferring a franchise of great value, and Warren
Bridge, being free, drew off the passengers and property which would other-
wise pass over Charles River Bridge, thus destroying its income, and render-
ing this franchise of no value. That there was an implied contract on the
part of the State, that it would do nothing to impair the value of the charter
it had granted to the plaintiffs; and the act, therefore, incorporating the de-
fendant corporation was a law impairing the obligation of a contract and
void imder the constitution of Massachusetts and the constitution of the
United States, which forbid any law impairing the obligation of a contract.
The answer of the Chief Justice, deciding against the plaintiffs, is clear
382 ROGER BROOKE TANEY.
and conclusive. After showing tliat the ferry franchise in Harvard College
■was extinguished, and the annuity of £300 a year paid in lieu thereof, — thus
stripping the case of an emharrassing feature, — he lays down the rule gov-
erning grants of public franchises by the State to a private corporation.
He declares such a grant to be simply a bargain between the company and
the public, and any ambiguity in its terms must operate against the com-
pany and in favor of the public, and that the grantee can claim nothing by
implication. That the State had never agreed, by the terms of its grant
with the plaintiffs, not to charter a free bridge, if the public necessities re-
quired it, and the right to charter such a bridge was not taken away by
implication. That corporations must be confined to the privileges plainly
given in their charter, and the spirit of monopoly and exclusive privileges
in the nature of monopolies must be restrained within the strictest limits.
If Judge Taney had left no record of his learning and ability as a states-
man and lawyer, other than his opinion in this case, it would suffice to sus-
tain his great reputation; and to indicate the breadth and scope of his judg-
ment, and the power and strength of his intellect. Notwithstanding the
very learned and elaborate dissenting opinion pronounced by Mr. Justice
Story, the soundness of the views here expressed by the Chief Justice will
now hardly be questioned; and after a lapse of nearly half a century, the
weight and importance of the doctrines advanced are more thoroughly ap-
preciated in view of a growing tendency on the part of powerful ihonopolies
to arrogate to themselves those powers which inhere in the sovereign; powers
and rights which have sometimes been declared to be inalienable by consti-
tutional amendments, as well as by repeated judicial authority.
The opinion of the Chief Justice is as follows:
TANEY, C. J. — The questions involved in this case are of
the gravest character, and the court have given to them the
most anxious and deliberate consideration. The value of the
right claimed by the plaintiffs is large in amount ; and many
persons may no doubt be seriously affected in their pecuniary
interests by any decision which the court may pronounce ; and
the questions which have been raised as to the power of .the
several States, in relation to the corporations they have char-
tered, are pregnant with important consequences ; not only to
the individuals who are concerned in the corporate franchises,
but to the communities in which they exist. The court are
fuUy sensible that it is their duty, in exercising the high powers
conferred on them by the constitution of the United States, to
deal with these great and extensive interests with the utmost
caution ; guarding, as far as they have the power to do so, the
rights of property, and at the same time carefully abstaining
from any encroachment on the rights reserved to tlie States.
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 383
1. NaBEATION of the facts. HiSTOEY OF THE ChAELES EITEK
BEEDGE.
It appears, from the record, that in the year 1650, the legis-
lature of Massachusetts granted to the president of Harvard
College "the liberty and power" to dispose of the ferry from
Charlestown to Boston, by lease or otherwise, in the behalf,
and for the behoof of the college : and that, under that grant,
the college continued to hold and keep the ferry by its lessees
or agents, and to receive the profits of it until 1786. In the
last mentioned year a petition was presented to the legislature,
by Thomas KusseU and others, stating the inconvenience of the
transportation by ferries, over Charles river, and the public
advantages that would result from a bridge ; and praying to be
incorporated for the purpose of erecting a bridge in the place
where the ferry between Boston and Charlestown was then
kept. Pursuant to this petition, the legislature, on the 9th of
March, 1785, passed an act incorporating a company, by the
name of " The Proprietors of the Charles River Bridge," for
the purposes mentioned in the petition. Under this charter
the company were empowered to erect a bridge, in " the place
where the ferry was then kept ;" certain toUs were granted, and
the charter was limited to forty years, from the first opening of
the bridge for passengers; and from the time the toU com-
menced, until the expiration of this term, the company were to
pay two hundred pounds, annually, to Harvard College ; and,
at the expiration of the forty years, the bridge was to be the
property of the commonwealth ; " saving (as the law expresses
it) to the said college or imiversity, a reasonable annual com-
pensation, for the annual income of the ferry, which they
might have received had not the said bridge been erected."
The bridge was accordingly built, and was opened for pas-
sengers on the 17th of June, 1786. In 1792, the charter was
extended to seventy years, from the opening of the bridge ;
and at the expiration of that time it was to belong to the com-
monwealth. The corporation have regularly paid to the college
the annual sum of., two hundred pounds, and have performed
aU of the duties imposed on them by the terms of their charter.
384 ROGER BROOKE TANEY.
2. History of the "Waeeen BEmoE.
In 1828, the legislature of Massachusetts incorporated a
company by the name of "The Proprietors of the "Warren
Bridge," for the purpose of erecting another bridge over
Charles river. This bridge is only sixteen rods, at its com-
mencement, on the Charlestown side, from the commencement
of the bridge of the plaintiffs ; and they are about fifty rods
apart at their termination on the Boston side. The travellers
who pass over either bridge, proceed from Charlestown square,
which receives the travel of many great public roads leading
from the country ; and the passengers and travellers who go to
and from Boston, used to pass over the Charles Kiver bridge,
from and through this square, before the erection of the War-
ren bridge.
The Warren bridge, by the terms of its charter, was to be
surrendered to the State, as soon as the expenses of the pro-
prietors in building and supporting it should be reimbursed ;
but this period was not, in any event, to exceed six years from
the time the company commenced receiving toll.
3. HiSTOET OF THE LITIGATION.
When the original bill in this case was filed, the Warren
bridge had not been built ; and the bill was filed after the pas-
sage of the law, in order to obtain an injunction to prevent its
erection, and for general relief. The bill, among other things,
charged as a ground for relief, that the act for the erection of
the Warren bridge impaired the obligation of the contract be-
tween the commonwealth and the proprietors of the Charles
river bridge ; and was therefore repugnant to the constitution
of the United States. Afterwards, a supplemental bill was
filed, stating that the bridge had then been so far completed,
that it had been opened for travel, and that divers persons had
passed over, and thus avoided the payment of the toU, which
would otherwise have been received by the plaintiffs. The an-
swer to the supplemental bill admitted that the bridge had been
so far completed, that foot passengers could pass ; but denied
that any persons but the workmen and the superintendents had
passed over with their consent. In this state of the pleadings,
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 385
the cause came on f »r hearing in the supreme judicial court for
the county of Suffolk, in the commonwealth of Massachusetts,
at November term, 1829 ; and the court decided that the ac-
incorporating the Warren bridge, did not impair the obligation
of the contract with the ptoprietors of the Charles river bridge,
and dismissed the complainants' biU : and the case is brought
here by writ of error from that decision. It is, however, proper
to state, that it is understood that the State court was equally
divided upon the question ; and that the decree dismissing the
bill upon the ground above stated, was pronounced by a major-
ity of the court, for the purpose of enabling the complainants
to bring the question for decision before this court.
In the argument here it was admitted, that since the filing
of the supplemental biU, a sufficient amount of toU had been
received by the proprietors of the "Warren bridge to reimburse
aU their expenses, and that the bridge is now the property of
the State, and has been made a free bridge ; and that the value
of the franchise granted to the proprietors of the Charles river
bridge has, by this means, been entirely destroyed.
H the complainants deemed these facts material, they ought
to have been brought before the State Court by a supplemental
bin ; and this court, in pronouncing its judgment, cannot regu-
larly notice them. But in the view which the court take of
this subject, these additional circumstances would not in any
degree influence their decision. And as they are conceded to
be true, and the case has been argued on that ground, and the
controversy has been for a long time depending, and all parties
desire a final end of it ; and as it is of importance to them, that
the principles on which this court decide should not be misun-
derstood ; the case will be treated in the opinion now delivered,
as if these admitted facts were regularly before us.
A good, deal of evidence has been offered to show the na-
ture and extent of the ferry right granted to the college ; and
also to show the rights claimed by the proprietors of the bridge
at different times, by virtue of their charter ; and the opinions
entertained by committees of the legislature, and others, upon
that subject. But as these circumstances do not affect the
judgment of this court, it is unnecessary to recapitulate them.
25
386 EOGEB BROOKE TANEY.
4. Grounds relied upon by the'plainttffs.
The plaintiffs in error insist, mainly, upon two grounds:
1st. That, by virtue of the grant of 1650, Harvard College was
entitled, in perpetuity, to the right of keeping a ferry between
Charlestown and Boston; that this right was exclusive; and
that the legislature had not the power to establish another ferry
on the same line of travel, because it would infringe the rights
of the college ; and that these rights, upon the erection of the
bridge in the place of the ferry, under the charter of 1785, were
transferred to, and became vested in, " the proprietors of the
Charles river bridge ; " and that under, and by virtue of this
transfer of the ferry right, the rights of the bridge company
were as exclusive in that line of travel as the rights of the
ferry. 2d. That independently of the ferry right, the acts of
the legislature of Massachusetts of 1785 and 1792, by their true
construction, necessarily implied that the legislature would not
authorize another bridge, and especially a free one, by the side
of this, and placed in the same line of travel, whereby the fran-
chise granted to the "proprietors of the Charles river bridge"
should be rendered of no value ; and the plaintiffs in error con-
tend, that the grant of the ferry to the college, and of the char-
ter to the proprietors of the bridge, are both contracts on the
part of the State ; and that the law authorizing the erection of
the Warren bridge in 1828, impairs the obligation of one or
both of these contracts.
6. Eeteobpective legislation not necessaeilt unconsti-
tutional.
It is very clear, that in the form in which this case comes
before us ; being a writ of error to a State court ; the plaintiffs,
in claiming under either of these rights, must place themselves
on the ground of contract, and cannot support themselves upon
the principle that the law divests vested rights. It is well
settled by the decisions of this court, that a State law may be
retrospective in its character, and may divest vested rights ;
and yet not violate the constitution of the United States, un-
less it also impairs the obligation of a contract. In 2 Peters,
413, Satterlee v. Mathewson, this court, in speaking of the
CHARLES RIYEE BRIDGE v. WARREN BRIDGE. 387
8tate law then before them, and interpreting the article in the
constitution of the United States which forbids the States to
pass laws impairing the obligation of contracts, uses the follow-
ing language : " It (the State law) is said to be retrospective ;
be it so. But retrospective laws which do not impair the obli-
gation of contracts, or partake of the character of ex post facto
laws, are not condemned or forbidden by any part of that in-
strument" (the constitution of the United States). And in an-
other passage in the same case, the court say : " the objection,
however, most pressed upon the court, and relied upon by the
counsel for the plaintifE in error, was, that the effect of this act
was to divest rights which were vested by law in Satterlee.
There is certainly no part .of the constitution of the United
States, which applies to a State law of this description ; nor are
we aware of any decision of this, or of any circuit court, which
has condemned such a law upon this ground, provided its effect
be not to impair the obHgation of a contract." The same prin-
ciples were reaffirmed in this court, in the late case of "Watson
and others v. Mercer, decided in 1834, 8 Pet. 110: "as to the
first point (say the court), it is clear that this court has no right
to pronounce an act of the State legislature void, as contrary to
the constitution of the United States, from the mere fact that
it divests antecedent vested rights of property. The constitu-
tion of the United States does not prohibit the States from
passing retrospective laws, generally ; but only ex post facto
laws."
6. PLAIimrFs' OHAETEE MUST CONTAIN AN EXPEESB, NOT AN
IMPLIED CONTRACT.
After these solemn decisions of this court, it is apparent
that the plaintiffs in error cannot sustain themselves here,
either upon the ferry right, or the charter to the bridge ; upon
the ground that vested rights of property have been divested
by the legislature. And whether they claim under the ferry
right, or the charter to the bridge, they must show that the
title which they claim was acquired by contract, and that the
terms of that contract have been violated by the charter to the
Warren bridge. In other words, they must show that the State
had entered into a contract with them, or those under whom
388 ROGER BROOKE TANEY.
they claim, not to establish a free bridge at the place where the
Warren bridge is erected. Such, and such only, are the prin-
ciples upon which the plaintiffs in error can claim relief in this
case.
The nature and extent of the ferry right granted to Har-
vard College, in 1650, must depend upon the laws of Massa-
chusetts ; and the character and extent of this right has been
elaborately discussed at the bar. But in the view which the
court take of the case before them, it is not necessary to express
any opinion on these questions. For, assuming that the grant
to Harvard College, and the charter to the bridge- company,
were both contracts, and that the ferry right was as extensive
and exclusive as the plaintiffs contend for, still they cannot en-
large the privileges granted to the bridge, unless it can be
shown that the rights of Harvard College in this ferry have,
by assignment, or in some other way, been transferred to the
proprietors of the Charles river bridge, and still remain in
existence, vested in them, to the same extent with that in
which they were held and enjoyed by the college before the
bridge was built.
7. The feeet eight in Haevaed College extinguished, not
teansfeeeed.
It has been strongly pressed upon the court, by the plaintiffs
in error, that these rights are stiU existing, and are now held
by the proprietors of the bridge. If this franchise stiU exists,
there must be somebody possessed of authority to use it, and
to keep the ferry. Who could now lawfully set up a ferry
where the old one was kept? The bridge was built in the
same place, and its abutments occupied the landings of the
ferry. The transportation of passengers in boats, from landing
to landing, was no longer possible ; and the ferry was as effec-
tually destroyed as if a convulsion of nature had made there a
passage of dry land. The ferry, then, of necessity, ceased to
exist, as soon as the bridge was erected ; and when the ferry
itself was destroyed, how can rights which were incident to it
be supposed to survive ? The exclusive privileges, if they had
such, must follow the fate of the ferry, and can have no legal
existence without it — and if the ferry right had been assigned
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 389
by the college, in due and legal form, to the proprietors of the
bridge, they themselves extinguished that right when they
erected the bridge in its place. It is not supposed by any one,
that the bridge company have a right to keep a ferry. No
such right is claimed for them, nor can be claimed for them,
under their charter to erect a bridge — and it is difficult to im-
agine how ferry rights can be held by a corporation, or an in-
dividual, who have no right to keep a ferry. It is clear, that
the incident must follow the fate of the principal, and the priv-
ilege connected with property, cannot survive the destruction
of the property ; and if the ferry right in Harvard College was
exclusive, and had been assigned to the proprietors of the
bridge, the privilege of exclusion could not remain in the
hands of their assignees, if those assignees destroyed the ferry.
8. The feekt eight having been extinguished, an equita-
ble ASSIGNMENT COULD NOT BE CLAIMED.
But upon what ground can the plaintiffs in error contend
that the ferry rights of the coUege have been transferred to the
proprietors of the bridge ? If they have been thus transferred,
it must be by some mode of transfer known to the law ; and
the evidence relied on to prove it, can be pointed out in the
record. How was it transferred ? It is not suggested that
there ever was, in point of fact, a deed of conveyance executed
by the college to the bridge company. Is there any evidence
in the record from which such a conveyance may, upon legal
principle, be presumed ? The testimony before the court, so
far from laying the foundation for such a presumption, repels
it in the most positive terms. The petition to the legislature,
in 1Y85, on which the charter was granted, does not suggest an
assignment^ nor any agreement or consent on the part of the
college ; and the petitioners do not appear to have regarded the
washes of that institution as by any means necessary to insure
their success. They place their application entirely on consid-
erations of public interest and public convenience, and the
superior advantages of a communication across Charles river
by a bridge, instead of a ferry. The legislature, in granting
the charter, show by the language of the law, that they acted
on the principles assumed by the petitioners. The preamble
390 ROGER BROOKE TANEY.
recites that tlie bridge " will be of great public utility ; " and
that is the only reason they assign for passing the law which
incorporates this company. The validity of the charter is not
made to depend on the consent of the college, nor of any
assignment or surrender on their part ; and the legislature deal
with the subject, as if it were one exclusively within their own
power, and as if the ferry right were not to be transferred to
the bridge company, but to be extinguished, and they appear
to have acted on the principle that the State, by virtue of its
sovereign powers and eminent ■ domain, had a right to take
away the franchise of the ferry ; because, in their judgment,
the public interest and convenience would be better promoted
by a bridge in the same place ; and upon that principle they
proceed to make a pecuniary compensation to the college for
the franchise thus taken away : and as there is an express reser-
vation of a continuing pecuniary compensation to the college,
when the bridge shall become the property of the State, and no
provision whatever for the restoration of the ferry right, it is
evident that no such right was intended to be reserved or con-
tinued. The ferry, with all its privileges, was intended to be
forever at an end, and a compensation in money was given in
lieu of it. The college acquiesced in this arrangement, and
there is proof, .in the record, that it was all done with their
consent. Can a deed of assignment to the bridge company,
which would keep alive the ferry rights in their hands, be pre-
sumed under such circumstances ? Do not the petition, the
law of incorporation, and the consent of the college to the pe-
cuniary provision made for it in perpetuity, all repel the notion
of an assignment of its rights to the bridge company, and prove
that every party to this proceeding, intended that its franchises,
whatever they were, should be resumed by the State, and be no
longer held by any individual, or corporation ? "With such evi-
dence before us, there can be no ground for presuming a con-
veyance to the plaintiffs. There was no reason for such a con-
veyance. There was every reason against it ; and the arrange-
ments proposed by the charter to the bridge, could not have
been carried into full effect, unless the rights of the ferry were
entirely extinguished.
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 391
9. No ASSIGNMENT CREATED BT THE ANinjAL PAYMENT OF TWO
HUNDRED POUNDS.
It is, however, said, that the payment of the two hun-
dred pounds a year to the college, as provided for in the law,
gives to the proprietors of the bridge an equitable claim to be
treated as the assignees of their interest ; and by substitution,
upon chancery principles, to be clothed with all their rights.
The answer to this argument is obvious. This annual sum
was intended to be paid out of the proceeds of the tolls, which
the company were authorized to collect. The amount of the
tolls, it must be presumed, was graduated with a view to this
incumbrance, as well as to every other expenditure to which
the company might be subjected, under the provisions of their
charter. The tolls were to be collected from the public, and it
was intended that the expense of the annuity to Harvard Col-
lege should be borne by the public ; and it is manifest that it
was so borne, from the amount which it is admitted they re-
ceived, until the Warren bridge was erected. Their agreement,
therefore, to pay that sum, can give them no equitable right to
be regarded as the assignees of the college, and certainly can
furnish no foundation for presuming a conveyance ; and as the
proprietors of the bridge are neither the legal nor equitable
assignees of the college, it is not easy to perceive how the ferry
franchise can be invoked in aid of their claims, if it were even
still a subsisting privilege ; and had not been resumed by the
State, for the purpose of building a bridge in its place.
10. The feert franchise, and that of the bridge, inde-
pendent AND SEPARATE.
Neither can the extent of the pre-existing ferry right, what-
ever it may have been, have any influence upon the construc-
tion of the written charter for the bridge. It does not, by any
means, follow, that because the legislative power in Massachu-
setts, in 1650, may have granted to a justly favored seminary
of learning, the exclusive right of ferry between Boston and
Charlestown, they would, in 1785, give the same extensive
privilege to another corporation, who were about to erect a
bridge in the same place. The fact that such a right was
392 ROGER BROOKE TANEY.
granted to the college, cannot, by any sound rule of conetruo-
tion, be used to extend the privileges of the bridge company
beyond what the words of the charter naturally and legally im-
port. Increased population longer experienced in legislation,
the different character of the corporations which owned the
ferry from that which owned the bridge, might well have in-
duced a change in the policy of the State in this respect ; and
as the franchise of the ferry, and that of the bridge, are differ-
ent in their nature, and were each established by separate
grants, which have no words to connect the privileges of the
one with the privileges of the other ; there is no rule of legal
interpretation which would authorize the court to associate
these grants together, and to infer that any privilege was in-
tended to be given to the bridge company, merely because it
had been conferred on the ferry. The charter to the bridge is
a written instrument which must speak for itself, and be inter-
preted by its own terms.
11. Rtjle of construction as to ooepoeate geants. — IfoTH-
ING PASSES BY IMPLICATION.
This brings us to the act of the legislature of Massachusetts,
of 1785, by which the plaintiff's were incorporated by the name
of " The Proprietors of the Charles Eiver Bridge ; " and it is
here, and in the law of 1792, prolonging their charter, that we
must look for the extent and nature of the franchise conferred
upon the plaintiffs.
Much has been said in the argument of the principles -of
construction by which this law is to be expounded, and what
undertakings, on the part of the State, may be implied. The
court think there can be no serious difficulty pn that head. It
is the grant of certain franchises by the public to a private cor-
poration, and in a matter where the public interest is concerned.
The rule of construction in such cases is well settled, both in
England, and by the decisions of our own tribunals. In 2
Barn. & Adol. 793, in the case of the Proprietors of the Stour-
bridge Canal against Wheely and others, the court say, " the
canal having been made under an act of parliament, the rights
of the plaintiffs are derived entirely from that act. This, like
many other cases, is a bargain between a company of adven-
CHARLES RIVER BRIDGE t. WA&REN BRIDGE. 393
tnrers and the public, the terms of which are expressed in the
statute ; and the rule of construction in all such cases, is now
fully established to be this : that any ambiguity in the terms of
the contract, must operate against the adventurers, and in favor
of the public, and the plaintiffs can claim nothing that is not
clearly given them by the act." And the doctrine thus laid
down is abundantly sustained by the authorities referred to in
this decision. The case itself was as strong a one as could well
be imagined, for giving to the canal company, by implication,
a right to the toUs they demanded. Their canal had been
used by the defendants, to a very considerable extent, in trans-
porting large quantities of coal. The rights of all persons to
navigate the canal were expressly secured by the act of parlia-
ment ; so that the company could not prevent them from using
it, and the toll demanded was admitted to be reasonable. Yet,
as they only used one of the levels of the canal, and did not
pass through the locks ; and the statute, in giving the right to
exact toU, had given it for articles which passed " throv^h any
one or more of the lochs" and had said nothing as to toll for
navigating one of the levels ; the court held that the right to
demand toll, in the latter case, could not be implied, and that
the company were not entitled to recover it. This was a fair
case for an equitable construction of the act of incorporation,
and for an implied grant ; if such a rule of construction could
ever be permitted in a law of that description. For the canal
had been made at the expense of the company ; the defendants
had availed themselves of the fruits of their labors, and used
the canal freely and extensively for their own profit. Still the
right to exact toll could not be implied, because such a privi-
lege was not found in the charter.
12. Rttle the same in England and the United States. —
attthoeities collated.
Borrowing, as we have done, our system of jurisprudence
from the EngKsh law ; and having adopted, in every other
case, civil and criminal, its rules for the construction of stat-
utes ; is there anything in our local situation, or in the nature
of our political institutions, which should lead us to depart from
the principle where corporations are concerned ? Are we to
39^ ROGER BROOKE TANEY.
apply to acts of incorporation a rule of construction differing
from that of tlie English law, and, by implication, make the
terms of a charter, in one of the States, more unfavorable to
the public, than upon an act of parliament, framed in the same
words, would be sanctioned in an English court ? Can any
good reason be assigned for excepting this particular class of
cases from the operation of the general principle ; and for in-
troducing a new and adverse rule of construction in favor of
corporations, while we adopt and adhere to the rules of con-
struction known to the English common law, in every other
case, without exception ? "We think not ; and it would present
a singular spectacle, if, while the courts in England are restrain-
ing, within the strictest limits, the spirit of monopoly, and ex-
clusive privileges in nature of monopolies, and confining cor-
porations to the privileges plainly given to them in their char-
ter, the courts of this country should be found enlarging these
privileges by implication, and CQpstruing a statute more un-
favorably to the public, and to the rights of the community,
than would be done in a like case in an English court of justice.
But we are not now left to determine, for the first time, the
rules by which public grants are to be construed in this coun-
try. The subject has already been considered in this court ;
and the rule of construction, above stated, fully established.
In the case of the United States v. Arredondo, 8 Pet. 738, the
leading cases upon this subject are collected together by the
learned judge who delivered the opinion of the court ; and the
principle recognized, that in grants by the public nothing
passes by implication.
The rule is still more clearly and plainly stated in the case
of Jackson v. Lamphire, in 3 Pet. 289. That was a grant of
land by the State ; and in speaking of this doctrine of implied
covenants in grants by the State, the court use the following
language, which is strikingly applicable to the case at bar: —
" The only contract made by the State, is the grant to John
Cornelius, his heirs and assigns, of the land in question. The
patent contains no covenant to do, or not to do any further act
in relation to the land ; and we do not feel ourselves at liberty,
in this case, to create one by implication. The State has not,
by this act, impaired the force of the grant ; it does not pro-
CHARLES RIVER BRIDGE v. WARREN BRIDGE. 395
fess or attempt to take the land from the assigns of Cornelius,
and give it to one not claiming under him ; neither does the
award produce that effect ; the grant remains in full force ; the
property conveyed is held by his grantee, and the State asserts
no claim to it."
The same rule of construction is also stated in the case of
Beatty v. The Leasee of Knowles, 4 Pet. 168 ; decided in this
court in 1830. In delivering their opinion in that case, the
court say : — " That a corporation is strictly limited to the exer-
cise of those powers which are specifically conferred on it, will
not be denied. The exercise of the corporate franchise being
restrictive of individual rights, cannot be extended beyond the
letter and spirit of the act of incorporation."
But the case most analogous to this, and in which the ques-
tion came more directly before the court, is the case of the
Providence Bank v. Billings & Pittman, 4 Pet. 514 ; and which
was decided in 1830. In that case, it appeared that the legis-
lature of Khode Island had chartered the bank, in the usual
form of such acts of incorporation. The charter contained no
stipulation on the part of the State, that it would not impose a
tax on the bank, nor any reservation of the right to do so. It
was silent on this point. Afterwards, a law was passed, impos-
ing a tax on all banks in the State ; and the right to impose
this tax was resisted by the Providence Bank, upon the ground,
that if the State could impose a tax, it might tax so heavily as
to render the franchise of no value, and destroy the institution ;
that the charter was a contract, and that a power which may
in effect destroy the charter is inconsistent with it, and is im-
pliedly renounced by granting it. But the court said that the
taxing power was of vital importance, and essential to the ex-
istence of government ; and that the relinquishment of such a
power is never to be assumed. And in delivering the opinion
of the court, the late chief justice states the principle in the
following clear and emphatic language. Speaking of the tax-
ing power, he says, " as the whole community is interested in
retaining it undiminished, that community has a right to insist
that its abandonment ought not to be presumed, in a case in
which the deliberate purpose of the State to abandon it does
not appear." The case now before the court is, in principle.
396 ROGER BROOKE TANET.
precisely the same. It is a charter from a State. The act of
incorporation is silent in relation to the contested power. The
argument in favor of the proprietors of the Charles river
bridge, is the same, almost in words, with that used by the
Providence Bank ; that is, that the power claimed by the State,
if it exists, may be so used as to destroy the value of the fran-
chise they have granted to the corporation. The argument
must receive the same answer ; and the fact that the power has
been already exercised so as to destroy the value of the fran-
chise, cannot in any degree affect the principle. The existence
of the power does not, and cannot depend upon the circumstance
of its having been exercised or not.
13. No SOVBKEIGN POWER OAK BE SUEEENDEEED BY IMPLICA-
TION'. — The taxing powee not distinguishable in this
EEGABD.
It may, perhaps, be said, that in the case of the Providence
Bank, this court were speaking of the taxing power ; which is
of vital importance to the very existence of every government.
But the object and end of all government is to promote the
happiness and prosperity of the community by which it is
established ; and it can never be assumed, that the government
intended to diminish its power of accomplishing the end for
which it was created. And in a country like ours, free, active,
and enterprising, continually advancing in numbers and wealth ;
new channels of communication are daily found necessary, both
for travel and trade ; and are essential J;o the comfort, conveni-
ence, and prosperity of the people. A State ought never to be
presumed to surrender this power, because, like the taxing
power, the whole community have an interest in preserving it
undiminished. And when a corporation alleges, that a State
has surrendered for seventy years, its power of improvement
and public accommodation, in a great and important line of
travel, along which a vast number of its citizens must daily
pass ; the community have a right to insist, in the language of
this court above quoted, " that its abandonment ought not to
be presumed, in a case in which the deliberate purpose of the
State to abandon it does not appear." The continued exist-
ence of a government would be of no great value, if, by impli-
CHARLES RIVER BRIDGE v. "WARREN BRIDGE. 397
cations and presumptions, it was disarmed of the powers neces-
sary to accomplish the ends of its creation, and the functions
it was designed to perform transferred to the hands of privi-
leged corporationfi. The rule of construction announced by
the court, was not coniined to the taxing power ; nor is it so
limited in the opinion delivered. On the contrary, it was dis-
tinctly placed on the ground that the interests of the commu-
nity were concerned in preserving, undiminished, the power
then in question ; and whenever any power of the State is said
to be surrendered or diminished, whether it be the taxing
power or any other affecting the public interest, the same prin-
ciple applies, and the rule of construction must be the same.
No one will question that the interests of the great body of the
people of the State would, in this instance, be affected by the
surrender of this great line of travel to a single corporation,
with the right to exact toll, and exclude competition for sev-
enty years. While the rights of private property are sacredly
guarded, we must not forget that the community also have
rights, and that the happiness and well being of every citizen
depend on their faithful preservation.
14. Extent and scope of plaintiffs' geant.
Adopting the rule of construction above stated as the set-
tled one, we proceed to apply it to the charter of 1785, to the
proprietors of the Charles river bridge. This act of incorpora-
tion is in the usual form, and the privileges such as are com-
monly given to corporations of that kind. It confers on them
the ordinary faculties of a corporation, for the purpose of
building the bridge ; and establishes certain rates of toU, which
the company are authorized to take. This is the whole grant.
There is no exclusive privilege given to them over the waters
of Charles river, above or below their bridge. No right to
erect another bridge themselves, nor to prevent other persons
from erecting one. No engagement from the State, that an-
other shall not be erected ; and no undertaking not to sanction
competition, nor to make improvements that may diminish the
amount of its income. Upon all these subjects the charter is
silent ; and nothing is said in it about a line of travel, so much
insisted on in the argument, in which they are to have exclu-
398 ROGER BROOKE TANEY.
eive privileges. No words are used, from whicli an intention
to grant any of these rights can be inferred. If the plaintiff is
entitled to them, it must be implied, simply, from the nature
of the grant ; and cannot be inferred from the words by which
the grant is made.
15. Plaintiffs' chaeteb not impaibed bt the geant to the
Waeeen bridge.
The relative position of the Warren bridge has already oeen
described. It does not interrupt the passage over the Charles
river-bridge, nor make the way to it or from it less convenient.
!None of the faculties or franchises granted to that corporation,
have been revoked by the legislature ; and its right to take the
toUs granted by the charter remains unaltered. In short, all
the franchises and rights of property enumerated in the char-
ter, and there mentioned to have been granted to it, remaia un-
impaired. But its income is destroyed, by the "Warren bridge ;
which, being free, draws oflE the passengers and property which
would have gone over it, and renders their franchise of no
value. This is the gist of the complaint. For it is not pre-
tended that the erection of the Warren bridge would have
done them any injury, or in any degree affected their right of
property ; if it had not diminished the amount of their toUs.
In order then to entitle themselves to relief, it is necessary to
show that the legislature contracted not to do the act of which
they complain ; and that they impaired, or in other words, vio-
lated that contract by the erection of the Warren bridge.
The inquiry then is, does the charter contain such a con-
tract on the part of the State ? Is there any such stipulation
to be found in that instrument ? It must be admitted, on all
hands, that there is none — ^no words that even relate to another
bridge, or to the diminution of their tolls, or to the line of
travel. If a contract on that subject can be gathered from the
charter, it must be by implication ; and cannot be found in
the words used. Can such an agreement be implied? The
rule of construction before stated is an answer to the question.
In charters of this description, no rights are taken from the
public, or given to the corporation, beyond those which the
words of the charter, by their natural and proper construction.
CHARLES EIYER BRIDGE v. WARREN BRIDGE. 399
purport to convey. There are no words which import such a
contract as the plaintiffs in error contend for, and none can be
implied ; and the same answer mnst be given to them that was
given by this court to the Providence Bank. The whole com-
munity are interested in this inquiry, and they have a right to
require that the power of promoting their comfort and conven-
ience, and of advancing the public prosperity, by providing
safe, convenient, and cheap ways for the transportation of pro-
duce, and the purposes of travel, shall not be construed to have
been surrendered or diminished by the State ; unless it shall
appear by plain words, that it was intended to be done.
But the case before the court is even stiU stronger against
any such implied contract as the plaintiffs in error contend for.
The Charles river bridge was completed in 1786. The time
limited for the duration of the corporation, by their original
charter, expired in 1826. When, therefore, the law passed
authorizing the erection of the "Warren bridge, the proprietors
of Charles river bridge held their corporate existence under the
law of 1792, which extended their charter for thirty years ; and
the rights, privileges, and franchises of the company, must de-
pend upon the construction of the last mentioned law, taken in
connection with the act of 1785.
16. The act extending plaintiffs' chaetee oonsdoeeed.
The act of 1792, which extends the charter of this bridge,
incorporates another company to buUd a bridge over Charles
river ; furnishing another communication with Boston, and dis-
tant only between one and two miles from the old bridge.
The first six sections of this act incorporate the proprietor^
of the "West Boston bridge, and define the privileges, and de-
scribe the duties of that corporation. In the seventh section
there is the following recital : " And whereas the erection of
Charles river bridge was a work of hazard and public utility,
and another bridge in the place of "West Boston bridge may
diminish the emoluments of Charles river bridge; therefore,
for the encouragement of enterprise," they proceed to extend
the charter of the Charles river bridge, and to continue it for
the term of seventy years from the day the bridge was com,
pleted ; subject to the conditions prescribed in the original act-
4:00 ROGER BROOKE TANEY.
and to be entitled to the same tolls. It appears, then, that by
the same act that extended this charter, the legislature estab-
lished another bridge, which they knew would lessen its profits ;
and this, too, before the expiration of the first charter, and only
seven years after it was granted; thereby showing that the
State did not suppose that, by the terms it had used in the first
law, it had deprived itself of the power of making such pubKc
improvements as might impair the profits of the Charles river
bridge ; and from the language used in the clauses of the law
by which the charter is extended, it would seem that the legis-
lature were especially careful to exclude any inference that the
extension was made upon the ground of compromise with the
bridge company, or as a compensation for rights impaired.
On the contrary, words are cautiously employed to exclude
that conclusion ; and the extension is declared to be granted as
a reward for the hazard they had run, and " for the encourage-
ment of enterprise." The extension was given because the
company had undertaken and executed a work of doubtful suc-
cess ; and the improvements which the legislature then con-
templated, might diminish the emoluments they had expected
to receive from it. It results from this statement, that the leg-
islature in the very law extending the charter, asserts its rights
to authorize improvements over Charles river which would take
off a portion of the travel from this bridge and diminish its
profits ; and the bridge company accept the renewal thus given,
and thus carefully connected with this assertion of the right on
the part of the State. Can they, when holding their corporate
existence under this law, and deriving their franchises alto-
gether from it, add to the privileges expressed in their charter
an implied agreement which is in direct conflict with a portion
of the law from which they derive their corporate existence ?
Can the legislature be presumed to have taken upon themselves
an implied obligation, contrary to its own acts and declarations
contained in the same law? It would be diflScult to find a case
justifying such an implication, even between individuals ; still
less will it be found where sovereign rights are concerned, and
where the interests of a whole community would be deeply
affected by such an implication. It would, indeed, be a strong
exertion of judicial power, acting upon its own views of what
CHARLES EIVER BRIDGE v WARREN BRIDGE. 401
justice required, and the parties ought to have done ; to raise,
by a sort of judicial coercioUj an implied contract, and infer it
from the nature of the very instrument in which the legislar
ture appear to have taken pains to use words which disavow
and repudiate any intention, on the part of the State, to make
such a contract.
17. The docteine of implied grants contbaet to pitblic
POLICY.
Indeed, the practice and usage of almost every State in the
Union, old enough to have commenced the work of internal
improvement, is opposed to the doctrine contended for on the
part of the plaintiffs in error. Turnpike roads have been made
in succession, on the same line of travel ; the later ones inter-
fering materially with the profits of the first. These corpora-
tions have, in some instances, been utterly ruined by the intro-
duction of newer and better modes of transportation, and trav-
elling. In some cases, railroads have rendered the turnpike
roads on the same line of travel so entirely useless, that the
franchise of the turnpike corporation is not worth preserving.
Yet in none of these cases have the corporation supposed that
their privileges were invaded, or any contract violated on the
part of the State. Amid the multitude of cases which have
occurred, and have been daily occurring for the last forty or
fifty years, this is the first instance in which such an implied
contract has been contended for, and this court called upon to
infer it from an ordinary act of incorporation, containing noth-
ing more than the usual stipulations and provisions to be found
in every such law. The absence of any such controversy, when
there must have been so many occasions to give rise to it,
proves that neither States, nor individuals, nor corporations,
ever imagined that such a contract could be implied from such
charters. It shows that the men who voted for these laws,
never imagined that they were forming such a contract ; and if
we maintain that they have made it, we must create it by a
legal fiction, in opposition to the truth of the fact, and the ob-
vious intention of the party. We cannot deal thus with the
rights reserved to the States ; and by legal intendments and
mere technical reasoning, take away from them any portion of
36
402 ROGER BROOKE TANEY.
that power over their own internal police and improvement,
which is 80 necessary to their well being and prosperity.
18. The DooTEmK of implied geants euinous in its eeshlts
TO THE PDBLIO WELFAEE.
And what would be the fruits of this doctrine of implied
contracts on the part of the States, and of property in a line of
travel by a corporation, if it should now be sanctioned by this
court ? To what results would it lead us ? If it is to be found
in the charter to this bridge, the same process of reasoning
must discover it, in the various acts which have been passed,
within the last forty years, for turnpike companies. And what
is to be the extent of the privileges of exclusion on the difiEer-
ent sides of the road ? The counsel who have so ably argued
this case have not attempted to define it by any certain bound-
aries. How far must the new improvement be distant from
the old one ? How near may you approach without invading
its rights in the privileged line ? If this court should establish
the principles now contended for, what is to become of the
numerous railroads established on the same line of travel with
turnpike companies, and which have rendered the franchises
of the turnpike corporations of no value ? Let it once be un-
derstood that such charters carry with them these implied con-
tracts, and give this unknown and undefined property in a line
of travelling, and you will soon find the old turnpike corpora-
tions awakening from their sleep, and calling upon this court
to put down the improvements which have taken their place.
The millions of property which have been invested in railroads
and canals, upon lines of travel which had been before occupied
by turnpike corporations, will be put in jeopardy. We shall
be thrown back to the improvements of the last century, and
obliged to stand still, until the claims of the old turnpike cor-
porations shall be satisfied ; and they shall consent to permit
these States to avail themselves of the lights of modern science,
and to partake of the benefit of those improvements which are
now adding to the wealth and prosperity, and the convenience
and comfort, of every other part of the civilized world. Nor
is this aU. This court will find itself compelled to fix, by some
arbitrary rule, the width of this new kind of property in a line
CHARLES RIVER BRIDGE v. 'WARREN BRIDGE. 403
of travel ; for if sucli a right of property exists, we have no
lights to guide us in marking out its extent, unless, indeed, we
resort to the old feudal grants, and to the exclusive rights of
ferries, by prescription, between towns ; and are prepared to
decide, that when a turnpike road from one town to another
had been made, no railroad or canal, between these two points,
could afterwards be established. This court are not prepared
to sanction principles which must lead to such results.
Many other questions, of the deepest importance, have been
raised and elaborately discussed in the argument. It is not
necessary, for the decision of this case, to express our opinion
upon them, and the court deem it proper to avoid volunteering
an opinion on any question, involving the construction of the
constitution, where the case itself jdoes- not bring the question
directly before them, and make it their duty to decide upon it.
Some questions, also, of a purely technical character, have
been made and argued, as to the form of proceeding and the
right to relief. But enough appears on the record to bring
out the great question in contest ; and it is the interest of all
parties concerned, that the real controversy should be settled
without further delay : and as the opinion of the court is pro-
nounced on the main question in dispute here, and disposes of
the whole case, it is altogether unnecessary to enter upon the
examination of the forms of proceeding, in which the parties
have brought it before the court.
The judgment of the supreme judicial court of the com-
monwealth of Massachusetts, dismissing the plaintifiEs' bill,
must, therefore, be affirmed, with costs.
THE WORK AND FAME OF THE LAWYER.
HON. RICHARD D. HUBBARD.
And now when I consider this long life closed — these many years
ended of eminent labor in the highest ranks of the forum — and nothing
left of it all but a tolling bell, a handful of earth and a passing tradition —
a tradition already half past — I am reminded of the infelicity which attends
the reputation of a great lawyer. To my thinking, the most vigorous brain
work of the world is done in the ranks of our profession. And then our
work concerns the highest of all temporal interests, property, reputation,
the peace of families, liberty, life even, the foundations of society, the juris-
prudence of the world, and as a recent event has shown, the arbitrations
and peace of nations. The world accepts the work, but forgets the work-
ers. The waste hours of Lord Bacon and Serjeant Talfourd were de-
voted to letters, and each is infinitely better remembered for his mere lit-
erary diversions than for his whole long and laborious professional life-
work. The victory gained by the counsel of the seven bishops was
worth infinitely more to the people ot England than all the triumphs
of the Crimean war. But one Lord Cardigan led a foolishly brilliant
charge against a Russian battery at Balaklava, and became immor-
tal. Who led the great charge of the seven great confessors of the En-
glish church against the English, crown at Westminster Hall.? You must
go to your books to answer. They were not on horseback. They wore
gowns instead of epaulettes. The truth is, we are like the little insects
that in the unseen depths of the ocean lay the coral foundations of uprising
islands. In the end come the solid land, the olive and the vine, the habi-
tations of man, the arts and industries of life, the havens of the sea and
ships riding at anchor. But the busy toilers which laid the beams of a
continent in a dreary waste, are entombed in their work and forgotten in
their tombs.
Yet the infelicity to which I have alluded is not without its compensa-
tions. For what, after all, is posthumous fame to him who brought noth-
ing into this world and may carry nothing out ? The dead leave behind
their reputations aUke with their estates. A man may be libelled to-day
as a fool, a fanatic, and a knave, and to-morrow his libellers sneak into his
funeral procession, and the chief magistrate of forty millions of freemen
begs the honor of two feet of space at his obsequies. It is the old story —
the tax which posthumous fame so often pays for its title — a garret and a
crust in life, a mausoleum and statue afterwards. What avails it all ?
We may justly console ourselves with the reflection, that we belong to a
profession which above all others shapes and fashions the institutions in
which we live, and which, in the language of a great statesman, " is as an-
cient as the magistracy, as noble as virtue, as necessary as justice '' — a pro-
fession, I venture to add, which is generous and fraternal above all others,
and in which living merit is appreciated in its day, according to its deserts,
and by none so quickly and so ungrudgingly as by those who are its pro-
fessional contemporaries and competitors in the same field. We have our
rivalries — who else has more ? — but they seldom produce jealousies. We
have our contentions — who else has so many? — but they seldom produce
enmities. The old Saxons used to cover their fires on every hearth at the
sound of the evening curfew. In like manner, but to a better purpose, we
also cover at each nightfall the embers of each day's struggle and strife.
We never defer our amnesties till after death, and have less occasion there-
fore than some others to deal in post mortem bronzes and marbles. So
much we may say without arrogance of ourselves — so much of our noble
profession. — From an Address to the Hartford Bar, on Hon. William Hungerford, Jan-
uary, 1873.
[404]
JOHN BANNISTER GIBSON.
ON MORAL AND MENTAL INSANITY IN CASES OF
HOMICIDE.
Commonwealth v. Moslee, Decbmbee Teem, 1846.
[4 Pa. St., 264.]
Analysis of OprNioN op Chief Justice Gibbon.
1. General insanity, when sufiQcient to ex-
cuse from responsibility.
3. Partial insanity, when sufficient to excuse
from responsibility.
3. Moral or homicidal insanity, when a de-
fense.
4. Conduct of the prisoner when the act was
committed.
5. Want of motive not necessarily evidence
of insanity.
6 Neither the nature of the crime, nor pris-
oner's erratic conduct, necessarily suffi-
cient to excuse.
7. As to prisoner's visions and forebodings.
8. Facts necessary to reduce the offense to
manslaughter.
John BAinnsTEB Gibson was in some respects one of the most remark-
able of the number of distinguished men who have graced the bench of the
Supreme Court of Pennsylvania, and possessed many of the qualities of a
great judge. Nature endowed him with fine talents, and although not a close
student, he was regarded intellectually as the strongest of all his cotem-
poraries. Though lacking to some extent in polish and refinement, he was
possessed of a noble and generous heart, and his friendship was sincere,
though without display or ostentation. His acquirements were not confined
to professional learning, but covered an extensive field, embracing the de-
lightful pursuits of poetry, music, and art, of which he was very fond.
Born in 1780, he was appointed Judge of the Supreme Court in 1816, by
Governor Snyder, to fill the vacancy occasioned by the death of the witty and
accomplished Brackenridge, whose opinions are the most unique to be found
in legal literature. Upon the death of Chief Justice Tilghman in 1827,
Gibson succeeded to the Chief Justiceship, which position he held till the
time of his death in 1853.
Force, brevity and clearness are the characteristic features of his judicial
opinions. He grappled at once the very marrow of the subject, but seemed
to possess neither love nor patience for details. The following selections
wUl suflBce to show his clear and robust style of reasoning:
In 1846 Charles Hosier was indicted for the murder of Eve, his wife, in
the city of Philadelphia. The parties had been married about eleven
years. There was a great disparity in their ages, the prisoner being nearly
[405]
406 JOHI^ BANNISTER GIBSON.
twenty years the younger of the two. On the day of the homicide the
prisoner came into the house about one o'clock, and shortly afterwards com-
menced taunting one Boyer, a son of the deceased by aformer husband, and at
the same time threatening to cut the throat of her grand-daughter. About six
o'clock the prisoner and deceased were left alone in the house, having previ-
ously had a slight quarrel, and about twenty minutes past six o'clock the de-
ceased was found lying in the house with her throat cut. No question was
made on the trial as to the fact of the prisoner being the guilty agent. His shirt
was torn — there were several bruises on the person of the deceased, and her
left eye was black as from a blow. He was arrested while changing his
shirt, in the room where the act was done. He inmiediately said that he ' ' did
it," and said that he "had done it with her own son's razor; " that he " was
ready to go anywhere; " " he had tried to do it before;" "had done it this
time right;" "it belonged to her;'' "she had never treated him right." The
defense was insanity; and in support of it evidence was. offered to show that
a year or more before, he had attempted to fire his wife's house; that some
time previously he had started for Pittsburgh, but soon returned, saying that
every night the deceased and her grand-daughter stood at the foot of his bed j
and that when arrested his appearance and conduct, according to the im-
pression of one VTitness, were those of a crazy man.
When the evidence was closed and addresses had been delivered to the
jury by counsel for the prisoner and for the prosecution, the Chief Justice
delivered the following able and vigorous charge, covering the law as to
insanity, the chief defense interposed in behalf of the prisoner:
GIBSON, C. J.— The fact of killing is not denied. Two
points of defense have been set up ; the first, that of insanity,
implying an entire deprivation, on the part of the prisoner, of
the power of seK-control, and constituting a complete defense
to the charge ; the second, that of temporary fury induced by
adequate provocation, reducing the offense to manslaughter.
The first, if sustained, will acquit him altogether ; the second,
while acquitting him of murder, will leave him guilty of man-
slaughter.
1. GrENEEAL mSAOTTT, WHEN SUFFICIENT TO EXOUSE FKOM
EBSPONSIBILrrY.
Insanity is mental or moral; the latter being sometimes
called homicidal mania, and properly so. It is my purpose to
deliver to you the law on this ground of defense, and not to
press upon your consideration, at least to an unusual degree,
the circumstances of the present case on which the law acts.
A man may be mad on all subjects ; and then, though he
may have glimmerings of reason, he is not a responsible agent.
COMMONWEALTH v. MOSLEB. 407
This is general insanity ; but if it be not so great in its extent
or degi'ee as to blind him to the nature and consequences of his
moral duty, it is no defense to an accusation of crime. It must
be so great as entirely to destroy his perception of right and
wrong ; and it is not until that perception is thus destroyed
that he ceases to be responsible. It must amount to delusion
or hallucination, controlling his will, and making the commis-
sion of the act, in his apprehension, a duty of overruling neces-
sity. The most apt illustration of the latter is the perverted
sense of religious obligation which has caused men sometimes
to sacrifice their wives and children.
2. Paetial msAKiTy, when sttfficient to excuse feom
EESPONSIBILmr.
Partial insanity is confined to a particular subject, the man
being sane on every other. In that species of madness, it is
plain that he is a responsible agent, if he were not instigated
by his madness to perpetrate the act. He continues to be a
legitimate subject of punishment, although he may have been
laboring under a moral obliquity of perception, as much so as
if he were merely laboring under an obliquity of vision. A
man whose mind squints, unless impelled to crime by this very
mental obliquity, is as much amenable to punishment as one
whose eye squints. On this point there has been a mistake, as
melancholy as it is popular. It has been announced by learned
doctors, that if a man has the least taint of insanity entering
into his mental structure, it discharges him of all responsibility
to the laws. To this monstrous error may be traced both the
fecundity in homicides, which has dishonored this country, and
the immunity that has attended them. The law is, that whether
the insanity be general or partial, the degree of it must be so
great as to have controlled theVill of its subject, and to have
taken from him the freedom of moral action.
3. Moral oe homicidal insanitt, when a defense.
But there is a moo'ol or homicidal insanity, consisting of an
irresistible inclination to kill, or to commit some other particu-
lar offense. There may be an unseen ligament pressing on the
mind, drawing it to consequences which it sees, but cannot
408 JOHN BANNISTER GIBSON.
avoid, and placing it under a coercion which, while its reBults
are clearly perceived, is incapable of resistance. The doctrine
which acknowledges this mania is dangerous in its relations,
and can be recognized only in the clearest cases. It ought to
be shown to have been habitual, or at least to have evinced
itself in more than a single instance. It is seldom directed
against a particular individual ; but that it may be so, is proved
by the case of the young woman who was deluded by an irre-
sistible impulse to destroy her chUd, though aware of the hei-
nous nature of the act. The frequency of this constitutional
malady is fortunately small, and it is better to confine it within
the strictest limits. If juries were to allow it as a general mo-
tive, operating in cases of this character, its recognition would
destroy social order as well as personal safety. To establish it
as a justification in any particular case, it is necessary either to
show, by clear proofs, its contemporaneous existence evinced
by present circumstances, or the existence of an habitual ten-
dency developed in previous cases, becoming in itseK a second
nature. Now, what is the evidence of mental insanity in tiiis
particular case ?
4. Co2,
opinion in Sharpless v. The Mayor,
595.
Blackburn, Lord,
opinion in Fletcher v. Rylands, 623.
Blackstone, Sir William,
observations as to functions of a
court of equity, 54.
sketch of, 116.
fame of his commentaries, 116.
opinion in Scott v. Shepherd, 116.
on exercise of the right of eminent
domain, 231.
as to what constitutes marriage, 443.
Bleak House, 132.
Bleckley, Logan E.,
opinion in Western Railroad v.
Thornton, 737.
opinion in Early v. Oliver, 747.
Blockade,
notice of, not necessarily a deten-
tion by a foreign prince, 159.
legal and illegal, denned, 159.
neutral merchandise kno^wingly
shipped to, 165.
Bona Fide Purchaser,
when equity will avoid sale to, 242.
[777]
778
INDEX.
Bond, Dr. John,
his sufferings and deatli, 141.
Bond V. Hopiiins, 131, 137.
Bonds,
when valid in hands of bona fide
holder, 655.
rule as to defenses to government
bonds, 656.
refusal to issue municipal bonds,
when justified, 690.
Boroughs.
right of election in, defined, 27.
Bottomry,
not usury, 71.
Brackeiiridge, Hugh H.,
notice of, 253.
opinion in McAllister v. Marshall,
254.
opinion in Alexander v. Jameson,
258.
opinion in Commonwealth v. Tay-
lor, 268.
Bracton,
on dower in cases of clandestine
marriages, 438.
Breach of Promise,
action for, after copula, 454.
Bridge,
case of Charles River, 383.
Brougham, Henry, Lord,
sketch of his character, 823.
opinion in Greenough v. Gaskell, 326.
opinion in McCarthy v. De Caix,339.
Browne, Sir Thomas,
on inhumation and burning, 800.
Burgage
and burgership, defined, 27, 28.
Burgesses,
right to elect, a subject of inherit-
ance, 28.
Burgh, John de,
on canon law as to validity of mar-
riages, 431.
Burglary,
felonious intent essential to consti-
tute, 198.
indictment must show intent to
commit a felony, 198.
Burial,
various modes of, among the an-
cients, 300, 301.
places selected for, in various coun-
tries, 302.
fees for, coffined and uncofflned,305.
right of, does not include use of
casket, 306.
sentimental views with regard to,
306.
See Coffins; Dead.
Butler, Benjamin F.,
declares negroes contraband of war,
156.
Bushell's Case, 559.
Bynkershoech,
on right of eminent domain, 280.
Campbell, Lord,
opmion in Queen v. Millis, 480.
Canon Law,
with regard to solemnization of mar-
riages, 431.
Capture,
arrest and detention, within marine
policy, 158.
Carter r. Boehm, 84
statement of facts in opinion, 89.
contents of letters withheld in case,
90.
groimds for avoiding policy in, 91.
See also Iksukahce; Concbai/-
MBNTS; DiSCLOSUKES.
Case,
as distinguished from trespass, 116.
evidence in, will not support tres-
pass, 121.
Catching Bargains,
with young heirs, voidable in equi-
ty, 62.
with heirs, reversioners or expect-
ants, 76.
Catholic Church.
See BoMAK Catholic.
Cemetery,
in England subject only to tempo-
rary appropriation, 310.
See also Burial; Coffht.
Challenges,
to jurors, when proper, 719, 722.
Chancellor,
may promulgate decision anywhere,
750.
Chancery,
defined by Charles Dickens, 132.
See also Equity.
Charitable Uses,
validity of, 471, 491.
enforcement of, prior to the Statute
of Elizabeth, 494.
law of, in Pennsylvania, 497.
Charity,
for the advancement of learning,
most meritorious, 322.
Charles I,
Coke's reply to opening speech of, 3.
Charles River Bridge v. Warren
Bridge, 379.
history of, 388.
history of the litigation, 384.
extent of its grant, 397.
charter of, not impaired by grant to
Warren Bridge, 398.
Chnse, Salmon I'.,
sketch of character of, 635.
opinion in Texas v. White, 638.
INDEX.
779
Chesterfield v. Jansen, 67.
Chevalier D'Eon,
notice of, 107.
Christianity,
legal status of, 471.
how far regarded as part of the com-
mon law, 499.
not excluded from Girard college,
500.
Girard will not inconsistent with,
501.
Circumstantial Evidence,
value of, in cases of homicide, 413.
all evidence more or less circimi-
stantial, 413.
Civil Law,
as to recovery of money paid hy
mistake, 518.
Clandestine Marriages,
early decrees against, 454.
dower in cases of, 438.
See also Masbiage.
Coffin V. Coffin, 187.
Coffins,
use and manufacture of.in England,
304.
use of, among the ancients, 301.
metallic, difficulties experienced by
inventor of, 297.
attempt of King Leopold to abolish,
303.
Cogg'S V. Bernard, 40.
Cohabitation,
effect of, on marriage contract, 178.
Coke, Sir Edward,
sketch of his character, 1, 10.
abolishes monopolies, 2.
secures patents to inventors, 3.
character of his reports, 4
literary character of his works, 5.
his account of the origin and antiq-
luty of the common law, 7.
the famous marriage settlement of
his daughter, 8, 9.
opinion in King v. Tavemer, 11.
opinion in Warner v. Suckerman,15.
opinion in Bagge v. Slade, 19.
opinion in Cryps v. Baynton, 20.
opinion in Simpson v. Powell, 21.
on power of the court to grant vmt
of prohibition, 16-18.
on drunkard's responsibility for
crime, 568.
Comity of States,
as to law of contracts, 519.
existing between the States of the
Union, 714.
See also Inteenatiokal Com-
ity.
"Commerce,"
power to regulate, includes the tele-
graph, 710.
" Commerce " — continued.
includes commerce conducted, by
corporations, 714.
Common Carriers,
exempt from rules with regard to
ordinary bailees, 744.
Commons, House of,
jurisdiction to commit for contempt,
37.
Commonwealth v. Harman, 411.
V. Mosler. 405.
V. Newell, 198.
V. Taylor, 263.
V. Temple, 540.
V. Thompson, 192.
Communication,
to attorney, privileged, 323.
Compensation,
for private property taken for pub-
lic use, 226.
a condition precedent to exercise of
eminent domain, 230.
must be provided for in the statute,
232.
when element of, immaterial, 667.
Complaint,
need not contain items of an ac-
count, 20.
Concealments,
when will avoid infant's contracts
for necessaries, 57.
circumstance tending to show
fraud, 64.
Concealments and Disclosures,
in insurance contracts, 84, 91, 92.
reason of the rule as to, 87.
several concealments specifled,93, 95.
rule as to.intended to prevent fraud,
not to promote it, 96.
Condition Precedent,
compensation is. in cases of eminent
domain, 230, 232.
Confidential Communications.
See Privilbged Communica-
tions.
Confiscation,
of enemy's debts in time of war, 125.
operation of treaty upon debts after,
12.
Conflict of Statutes,
the latter abrogates former, 128.
Congress,
power to " regulate commerce, '' 709.
power over the postal service, 709.
power to prevent States from ob-
structing telegraphs, 711.
power of, to incorporate a bank, 370.
power of, to pass "necessary" laws,
379.
implied powers of, 281, 284.
right to restrain State from exer-
cising taxing power, 287.
780
INDEX.
Conscience,
equity will prevent legal advantage
from being used against, 181, 144.
equity will not allow advantage
taken under statute of frauds to
be used against, 147.
Consideration,
forbearance to sue a good consider-
ation for a promise, ai.
promise a good consideration for a
promise, 19.
inadequacy of, a badge of fraud,
344.
Constitution,
emanates from the people, not from
the States, 371.
cannot enumerate all the modes of
executing delegated powers, 374.
meaning in, of words "necessary
laws," 379.
powers in, which exist by implica-
tion, 381, 384.
meaning of the term "law of the
land,** within, 363.
furnishes test for validity of statute,
602.
is the supreme law, 556.
never designed to make jurors
judges of the law, 556.
Constitutional law,
taking private property for public
use, 336.
powers of the States and federal
government, 367.
Construction,
rule as to statutes, 350.
rule of, as to corporate grants, 393.
Contempt,
jurisdiction of Commons to com-
mit for, 37.
Contingencies,
contracts on, distinguished from
usury, 71.
Contraband of War,
goods, 156, 159.
munitions of war, 164.
neutral merchandise knowingly
shipped, 165.
Contra Bonos Mores,
when wager void, 110.
Contract,
natureof post obit, 17.
valid where made is valid every-
where, 97.
governed by the law of the place
where made, 97.
theory on which courts reject, as
immoral, 98.
valid where made, when cannot be
enforced, 179.
of wager when neither illegal or im-
moral, 105.
Contract — eontimied,
when illegal, 105.
how far law of place forms ele-
ment of, 534.
derives force from natural and mu-
nicipal law, 536.
extinguishment of, governed by the
law of its origin, 533.
See also Insubancb.
Contribution,
none between wrong-doers, 238, 335,
337.
principle of contribution, 337.
doctrine of the civil law with re-
gard to, 288.
public policy requires the rule,
339.
Conveyance,
voluntary, may become void as to
creditors, 349.
made to hinder, delay and defraud
creditors, void, 340.
Coolejr, Thomas M.
opinion in People v. Common Coun-
cil of Betroit, 688.
Corporate Grants,
rule of construction as to, 393.
Corporation,
takes no powers by implication,
387.
contract with, cannot be implied,
387.
can take nothing by implication,393.
nature of the power to create, 376,
285.
implied grants to, contrary to pub-
lic policy, 402.
power of Congress over corporations
engaged in commerce, 714.
in one State may transact business
in another, 714.
See also Foreigk Cohpoba-
TION.
Costs,
in equity, in discretion of the court,
80.
Counsel,
right of, to be fully heard, 748.
Court,
duty of the, to expound legislative
action, 353.
power of, to declare a law unconsti-
• tutional, 354.
See also State CotTBTS.
Creditor,
when chargeable with notice with
regard to partnership, 335.
Cremation,
discussed, 300.
Crimc_,
a guilty mind the essence of, 193.
must be tried by a jury, 555.
INDEX.
781
Croke, J.,
on power of coiirt to grant prohibi-
tion, 18.
remarks of, in King v. Taverner,12.
sentence pronounced by, 13.
Cross Bill,
when need not be set up in equity
suit, 151.
Cryps V. Baynton, 20.
Cnrtis, Benjamin R.,
sketch of his character, 553.
opinion in United States v. Morris,
554
opinion in United States v. McGlue,
568.
opinion in Hennesy v. Ship Ves-
sailles, 583.
l)a Costa V. Jones, 107.
Damagre,
exists whenever a statute is infring-
ed, 83.
for not being allowed to vote, 38.
Deacon,
marriage by, 458.
Dead,
mode of disposing of, among the
ancients, 300.
See BuBiAL; Coffins.
Debt,
follows the person, and may be en-
forced anywhere, 99.
of alien, not extinguished by war,
125. ,
meaning of, within treaty of 1783,
136.
Debtor and Creditor,
secret trusts as between, 254.
divine law as to, 255.
must be just and merciful, 257.
De Chastellux v. Fairchild, 431.
Decision^
may be promulgated anywhere, 750.
Declaration of Independence,
compared with Petition of Right,4, 5.
Dedication,
of public and lateral roads, 670.
De Grey, Lord Chief Justice,
on independence of judiciary, 211.
Delirium Tremens,
as distinguished from drunken mad-
ness, 568, 580.
symptoms, course and termination,
578.
Delegated Powers,
all modes of executing, cannot be
enumerated, 274.
government may select means of
performance, 274, 275.
right to employ means to execute,
expressly conferred, 377.
Delusion,
in cases of homicide, 577.
Demand,
when may be proved in case of a
note.without proof of protest, 183.
Dickens, Charles,
satire of, concerning equity pro-
cedure, 131.
his definition of chancery, 132.
D'Eon, le Chevalier, 107.
Disclosures,
when necessary in insurance con-
tracts, 84, 91.
reason of the rule as to, 87.
Dodderidg'e, J.,
remarks of, in King v. Tavemer,
13, 13.
on power of court to grant prohibi-
tion, 18.
Domicil,
of guardian and ward, when dis-
tinct, 416.
of children after marriage of wid-
ow, 417.
parent may change domicil of child,
418.
change of, not necessary to guard-
ianship, 419.
Dower,
right to, when marriage not cele-
brated by priest, 438.
Duchy Court,
may be restrained by Court of Kings
Bench by writ of prohibition, 16.
Duel,
slaying of adversary in, murder, 11.
views of John Randolph as to, 133.
Due Process of Law,
stream of water cannot be taken
without, 339.
Early v. Oliver, 745.
Easements,
all public easements within control
of legislature, 543.
Ecclesiastical Law,
with regard to marriage in England,
435.
Eldon, Lord,
in Pulteney v. Warren, 147.
opinions compared with Lord Sto-
well's, 395.
Election,
right of, in boroughs, defined, 37.
See also Vote.
manner of, in English boroughs, 29.
Elective Franchise,
value and importance of, 30.
See also Vote.
Eleemosynary Grants,
validity of, 471, 491.
782
INDEX.
Elizabeth,
enforcement of trusts prior to stat-
ute of, 494
Chancery records in reign of, 496.
Ellenborouglij Lord,
on subject of privileged communi-
cations, 830.
Ellsworth, Oliver,
notice of, 134.
opinion on question of national
treaty in conflict with. State stat-
ute, 135.
Emerigoii. on maritime law, 166.
Eminent Domain,
provision for compensation a con-
dition precedent to right of, 230.
Grotius, Puffendorf, and Bynker-
shoeck on right of, 230.
distinguished from taxation, 595.
does not extend to rents in perpe-
tuity, 665.
act to extinguish perpetual rents
falls within, 679.
Empiricism,
no crime at the common law, 193.
Enemy, power to confiscate debts of,
125.
England,
air of, too pure to be breathed by a
slave, 112, 114.
marriage in, subject to ecclesiastical
jurisdiction, 435.
Equitable Title,
when not barred by statute of limi-
tations, 145.
Equity,
when it will restrain suit at law to
enforce contract, 53-56.
princples on which the court acts, 59.
he who asks equity must do equity,
60.
persons within protection of, 61.
will relieve against advantages taken
of young heir, 63.
when it will rescind horse contracts,
63.
will relieve against a mistake of
fact, 67.
will not grant relief after ratifica-
tion of wager, 67.
follows the law in questions of
usury, 70.
can relieve against every species of
fraud, 74.
will prevent advantage gained at
law from being used against con-
science, 131, 144.
will not allow advantage under stat-
ute of frauds to be taken against,
147.
when statute of limitations no bar
in, 145.
Equity — continued.
when not necessary to file cross-bill
in, 151.
will regard as done that which ought
to be done, 154.
he who comes into equity must come
with clean hands, 233, 238.
will avoid a fraudulent sale even
against innocent party, 340.
will relieve against ignorance or
mistake,both of law and fact, 342.
344.
will not allow trust to fail for want
of a trustee, 487.
when it will relieve against mistake
of fact, 505.
when bound by principles of nat-
ural justice, 508.
will not relieve against mere igno-
rance, 511.
Estates Tail,
acts abolishing, 674.
Evidence,
when indecent evidence admissible,
108, 111.
when admissible to show a partner-
ship note to be an individual lia-
bility, 220.
as to existence of partnership liabil-
ity, must go to the jury, 221.
of fraud, inadequacy of considera-
tion, 344.
other facts to establish, 845, 246.
of insanity in cases of homicide nec-
essary to reduce killing to man-
slaughter, 408.
See also Cikctjmstantiai. Evi-
dence.
positive and circumstantial, 413.
of experts in cases of homicide,
577.
given in former trial, when proper,
723.
Experts,
opinions of, how far admissible in
cases of homicide, 677.
Extortion.
See Catching Bakgahsts.
Fact,
existence of partnership liability a
question of fact, 221.
See also Question of Fact.
Fame,
of the lawyer, 404.
Fear of Loss,
not a peril within policy of insur-
ance, 156.
Federal Courts,
authorities with respect to powers
of, 563.
importance of duties of, 566.
INDEX.
T83
Federal Government,
powers of, as regards the States, 267.
created by the people, not by the
States, 371.
though limited, supreme within its
sphere, 273.
may select mode of enforcing dele-
gated powers, 275.
cannot be taxed by a State, 390.
rule of construction as to grants of
power to States, 598.
Tederalist,
argument in, power of taxation, 293.
Federal System, sketch of, 659.
Federal Onion,
indestructibility and perpetuity of,
635.
Fees,
from public celebration of marriage,
485.
for cofSned and uncofSned funerals,
805.
for burial, regulated by durability
of coffin, 308.
for interments not unlawful, 311.
Femme Sole. See Woman.
Ferry Bight,
how extinguished by legislature, 888.
separate from a right to bridge, 391.
Field, Hon. Stephen J.,
liability of judicial officers, 203, 550
Filth, owner of land liable for injuries
from, 628.
Forbearance, to sue a good consider-
ation for a promise, 21.
Foreign Assignee,
rights against domestic creditor,536.
Foreign Corporation.
law of garnishment as to, 735.
Fox's Libel Bill, purpose of, 559.
Franchises,'
public, subject to control of legisla-
ture, 658.
Chief Justice Lewis on public fran-
chises, 696.
Fraud, classes of, 74.
rule as to concealments in insurance
contracts, to prevent fraud, 96.
in auction sales, 101.
vitiates a deed, even as against an
innocent party, 240.
of grantee must be clearly establish-
ed, 243.
evidences of inadequacy of consider-
ation, 244.
other evidences of, 245-248.
Frands, Statute of,
equity will not allow advantage un-
der, to be used against conscience,
147.
Freeduien, social and political status
at the South, 649.
Freeman v. Bishop, 60.
Frisht,
effect of, upon the imagination, 265.
Funerals. See CoFPms.
Gardner v. Till, of Newburgh,
Garnishment,
law of, as against foreign corpora-
tion, 735.
passenger's trunk and apparel not
subject to, 737.
must be made within the State, 739.
property not vdthin State not sub-
ject to, 740.
property must be within the State
at time of seizure, 743.
property seized after service and be-
fore return, 742.
Gibson, John Bannister,
notice of his character, 405.
opinion in Comm. v. Hosier, 406.
opinion in Sch. Direct's v. James, 417.
opinion in De Chaatellux v. Fair-
child, 431.
Gifts,
for advancement of learning, 333.
Gilbert t. Buzzard, 396.
Girard, Stephen,
character of his bequest to Girard
College, ,474.
clauses of his will, 474.
restriction as to ministers, 479.
bequests to Philadelphia and Penn-
sylvania, 480.
grounds advanced to invalidate his
will, 484.
religious views of, not subject to
review, 498.
Girard Will Case, 471.
Grand Jnry,
number of, in Federal Courts, 718.
Grant,
as distinguished from a license, 424.
carries all rights necessary to its
beneficial use, 545.
to corporation, how construed, 392.
Grants of Power,
from federal to State governments,
rule, 698.
Gratwick t. Juniper, 65.
Grave,
right to occupancy, temporary, 309.
in fixing compensation for, density
of population to be considered,310.
See also Bukial; Coffin.
(Jray, Hon. Horace,
law of marriage in Mass., 172.
Greenough v. Gaskell, 323.
Greenwood v. Curtis, 179.
Grotius, right of eminent domain, 330
Ground Rents, power of legislature
to extinguish, 659.
784:
INDEX.
Guardian and Ward,
when domicils separate, 416.
guardian cannot change domicil of,
418.
guardian cannot subject ward's
property to taxation, 419.
Habeas Corpus,
right of, defended by Lo;rd Coke, 3.
in Begin a v. Paty, 37.
writs of error in, 38.
granted in the case of the negro
James Somerset, 112.
judge liable for refusal to grant, 213.
Hale, Lord Chief Justice,
on the law of homicide, where fatal
drug was administered, 197.
on drunltard's responsibility for
crime, 568.
on legislative control of public
franchises, 658.
Hardwicke, Lord Philip,
slsetch of his character, 53.
opinion in Brook v. Galley, 56.
opinion in Freeman v. Bishop, 62.
opinion in Gratwick v. Juniper, 65.
opinion in Chesterfield v. Jansen, 70.
Harvard College, ferry right in, 388.
Haugliton, Mr. Jiistice,
remarks of, in King v. Tavemer, 13.
on power of court to grant prohibi-
tion, 18.
Hearing, party entitled to be heard
fully, 745, 748.
Heir, catching bargains with, voida-
ble in equity, 62.
Highways,
when public use in, subordinate,
540, 548.
right to, by street railways, 540.
how used, 542, 543.
new uses in, may be granted, 548.
Hildreth v. Sands, 240.
Hofi'man, David,
on the dignity of the law, 684.
Holman v. Jolinson, 97.
Holt, Lord,
sketch of his character, 23-25.
opinion in Ashby v. "White, 25.
opmion in Regina v. Paty, 37.
opinion in Coggs v. Bernard, 41.
independence of judiciary, 211.
privileged communications, 330.
decision in Tenant v. Goldwin, 629.
Homicide,
facts necessary to reduce to man-
slaughter, 409.
value of circumstantial evidence,411.
Horse Cars, bound to move at more
than ordinary speed, 548.
Horses, contracts for purchase of,
when equity will rescind, 63.
Hubbard, Hon. Bichard D.;
on the fame of the lawyer, 404.
Huberus, on the validity of contracts,
valid where made, 100.
Hungerford, Hon. W iliiam,
remajrks on memory of, 404.
Husband and Wife.
See Makkiage Contkact.
Ignorance,
in prescribing medicine, when no
felony, 196.
of owner of vessel as to employ-
ment of female, immateiial, 321.
of law and fact excuses, 339.
of law, when equity will excuse, 505.
distinguished from mistake, 511.
rule as to, in Massachiuetts, 513.
and South Carolina, 517.
Illegality of Contract, 179.
note, but not original contract, 179.
Illicit Voyages. See Votageb.
Imagination, effect of noise on, 265.
Immoral Contract,
theory on which courts reject, 98.
cannot be enforced, 179.
in the light of international comity,
183. See also Contkacts.
Immoral Wager,
cannot be enforced, 110.
Impeachment, only remedy for cor-
rupt, judicial act, 213.
Implied Powers,
under the Constitution, 281, 284.
Imprisonment,
no person can be twice imprisoned
except by legal order, 204.
when court may re-imprison, 205.
Inadequacy of Consideration,
a badge of fraud, 244.
Indecent Evidence,
when admissible, 108, HI.
Indictment,
when remedy by indictment in-
stead of by action, 33.
for disturbance in private house,263.
for malicious mischief, 266.
Infants,
domicil of, after marriage of vrid-
ow, 417.
rule as to contracts of, 56.
concealments or imposition on, 57.
Injunction, may be used to abate a
private nuisance, 228.
Injunction and Receiver^
hearsay affidavits on application, 747
hearing on application concerning,
_ 749.
Injury, imports damage, 32.
International Comity,
as affecting immoral contracts, 183.
as to law of contracts, 519.
INDEX.
785
Insanitj,
in cases of homicide, 405, 406, 407.
partial, when sufficient excuse, 407
want of motive not necessarily evi-
dence of, 408.
a question of fact for the jury, 574.
rules of law applicable to, 575.
observations and legal meaning of,
in cases of homicide, 574, 575.
Instrument,
meaning of those who speak in it
must be ascertained, 350.
general words in, strengthened by
exceptions, 600.
Insurance;
contract of, rests on mutual confi-
dence, 86.
' nature and character of contract, 88.
as to military operations in place
where loss occurs, 93.
concealments and disclosures in con-
tracts of, 84, 91.
reason of the rule as to, 87.
See also Neutkals.
Interpretation,
rules of construction as 'to, 600.
Intoxication,
no defense in cases of homicide, 581.
James I,
controversies with Lord Coke, 1-3.
. his arbitrary measures, 1-3.
Jane and Matilda, the, 313.
Jarndyce t. Jarndyce, 181.
Jewish Marriages, validity of, 461.
Jones T. Randall, 104.
Jones, Sir William,
on the science of jurisprudence, 734.
Bacon's estimate of conduct and de-
meanor of, 53.
not liable for error in matters with-
in his jurisdiction, 201.
it is sufficient if he has jurisdiction
of cause, 206.
responsibility at common law for
judicial acts, 207.
early statutes securing independ-
ence of, 208.
protected in his official acts, 209.
independence of, established by
Holt, Blansfleld and De Grey,311.
for willful act only liable to im-
■ peachment, 313.
liability of, acting without jurisdic-
tion, 550.
Judicial Power,
law adjudicating property rights an
assumption of, 359.
Jurv, protected for official acts, 209.
allowed to look at seals because they
could not read, 361.
50
Jury — conttrmed.
in federal courts are not judges of
the law in criminal cases, 551.
all crimes must be tried by, 655.
bound to take the law from the
court, 558.
may be directed by court in cases
of libel, 560.
power of, to judge the law under
the Sedition Act, 561.
has' no power to reverse Supreme
Court, 563.
sole judges of application of the law
to facts, 566. <
number of grand jury in federal
courts, 718.
challenges, when proper, 719.
charge to, in cases of polygamy, 723
783.
Kent, James.
on writs of error in habeas corpus
cases, 38.
remarks concerning Blackstone's
Commentaries, 116, 117.
sketch of his character, 201.
opinion in Yates v. Lansing, 304.
in Livingston v. Roosevelt, 317.
in Gardner v. V. of Newburgh,327
in Peck v. Ellis, 333.
in Hildreth v. Sands, 340.
on rule of comity as to foreign as-
signee and domestic creditor, 587.
Kenyan, Lord, on right of one part-
ner to bind the firm, 234.
King V. Taverner, 11.
Law,
• consists in the reason of the law, 35.
uncertainty of, 106, 252.
simply enforcement of justice, 256.
principles of, may be adapted to
wants of society, 542.
dignity and importance of, 674.
"Law of the Land," meaning of,
may abolish perpetual rents, 679, 683.
within the Constitution, 362.
defined, 661.
Lawyer, the work and fame of the, 404.
Legislature! power to transfer public
office, 347.
cannot assume judicial powers, 361.
cannot transfer property for private
use, 863.
can control public offices, 866.
cannot encroach upon powers of
judiciary, 421.
cannot order a new trial, 421.
power to authorize, municipality to
borrow money for public improve-
ments, 593.-
power of, liable to be abused, 601.
786
INDEX.
Legialatnre—eoniimted.
cannot be transferred, 601.
may grant authority to make a con-
tract, 606.
com-ts can furnish no remedy for
bad legislation, 607.
of State in rebellion, how far valid,
653.
insurgent cannot divest title to prop-
erty of State, 654.
power of, to exercise right of equi-
table conversion, 672.
power of, to control local self-gov-
ernment, 685.
over municipal corporations, 693.
when it can exercise compulsory
authority of municipality, 694.
cannot levy taxes to buy land for
local purposes, 698.
limitations of power over municipal
affairs, 701, 703.
Leopold, King of Italy, attempt to
abolish use of coffins, 303.
Lewis, Chief Justice,
on public franchises, 696.
Lex Fori,
application of, 528.
when remedies of, must prevail, 529.
Lex Loci Contractus,
application of the rule, 524.
governs as to extinguishment of
contract, 533.
when it governs, 799.
Libellous Intent,
not a question of law, 559.
License,dlstinguished from grant, 434.
Limitation,
statute of, does not run against one
seeking to get evidence, 139.
application of statute in equity
suits, 142.
when equitable title not barred by,
145.
a party has twenty years to assert
his title, 149, 153.
wisdom of statute of, 378.
Livingston v. BooseTelt, 316.
Loan, as distinguished from a pur-
chase 78.
LoUey's Case, 843.
Magna Charta,
provisions of, as to sanctity of life,
liberty, and property, 662.
Malice,
continues where there is no recon-
ciliation or sudden quarrel, 12.
essential to constitute crime of mur-
der, 193, 195.
sometimes arises by operation of
law, 192.
not essential in nuisance cases, 546.
Malice — continued.
may be inferred in cases of homi-
cide, 571.
proof of what is, 573.
Malicious Mischief,
an indictable offense, 263, 266.
M andamus, application for,as against
municipality, 691.
Mansfield, Lord,
sketch of his character, 83.
tribute of Story, J., to memory of,83.
opinion in Carter v. Boehm, 85.
opinion in Holman v. Johnson, 97.
opinion in Bexwell v. Christie, 101.
opinion in Jones v. BandaU, 104.
opinion in Da Costa v. Jones, 107.
opinion in Somerset v. St«wart, 113.
on independence of judiciary, 311.
on drunkard's responsibility, 568.
Manslaughter, facts necessary to re-
duce killing to, 409.
Maritime Contracts, 156.
law of, in Europe, 166.
Maritime Law,
with regard to employment of fe-
male mariner, 313.
governing law of salvage, 582.
Marriage,
what necessary to constitute, 171.
general observations as to, 173.
English law as to, during colonial
period, 174
in Massachusetts, 175.''
when illegal, 177.
effect of cohabitation, 178.
solemnized in England can only be
dissolved in England, 339.
authority of Lolley's Case, 342.
validity of, when not solemnized by
a priest, 485.
priest not essei^tial prior to refor-
mation, 430.
canon law as to validity of, 431.
validity of, in Sicily, 433.
validity of, in Roman Catholic
Church, 433.
validity of, in Scotland, 483.
law of, in time of the Saxons, 434.
early decrees against clandestine,
484.
public celebration of, to secure fees,
485.
uncertainty of early authorities, 436.
authorities as to validity of, without
priest, reviewed, 436, 447.
criminal cases discussed, 448.
American authorities — Kent and
Story, 451.
statutes in England, 452, 455.
construction given to, by dramatist
and novelist, 457.
Impossible to procure priest, 458.
INDEX.
78T
Marriage — continued.
by deacon, 458.
character of priest necessary to per-
form, 460.
consequences of holding void, 468.
Marriage Settlement, of Lady Fran-
ces.daughterof Sir Edward Coke,89.
Marshall, John,
sketch of his character, 267.
opinion in McCuIloch v. Maryland,
268.
views of construction contrasted
with Justice Taney, 379.
Matthews, Stanley, on development
of social order, 180.
Maxims,
ubi eadem ratio, ibi idem jus, 85.
ubi jus, ibi remedium, 81.
potior est conditio posidentis, 186.
causa proxima non remota spec-
tatur, 118.
he that asks equity must do equity,
60.
ex turpe causa non oritur actio, 179.
he who comes into equity must
come with clean hands, 283.
no contribution between wrong-
doers, 233.
ignorantia facti excusat; ignorantia
juris non excusat, 505.
ignorantia juris non excusat, 512.
noscitur a sociis, 282.
sic utere tuo ut alienum non Isedas,
621.
May V. Breed, 519.
not in conflict with Ogden v. Saun-
ders, 534.
Mayhem, what constitutes, 198.
not regarded as a felony since the
revolution, 199.
McAllister v. Marshall, 254.
McCarthy v. De Calx, 389.
Medical Prescription,
given in ignorance, though fatal
not necessarily felony, 196.
Metallic Coffins,
legal difficulties. experienced by in-
ventor of, 297.
use of not unlawful, 307.
comparative durability, 308.
Milford v. Worcester, 171.
Miller, Hon Samuel F., 37.
specific powers of government, 684.
Ministerial Acts,
when judge liable for, 213.
Misdemeanor, motive considered to
ascertain, 265.
Mistake of Fact,
equity will relieve against, 64.
Mistake of !.iuv,
when equity will relieve, 505.
conflict of authority on question, 508.
Mistake of Law — continued.
money paid by, may be recovered
back, 510.
rule in South Carolina and Massa-
chusetts, 517.
as distinguished from ignorance,
511, 513.
Mitford, John Freeman, 182.
See also Lobd Redebdalb.
Money had and received, legal prin-
ciples governing actions for, 509.
MonopoKes,
abolished by efforts of Lord Coke, 3.
Municipal Corporation,
may act as trustee under a will, 486.
trust to, may be confirmed by legis-
lature, 489.
effect and importance of such con-
firmation, 490.
as to State, is a public, not a private
corporation, 696.
distinction between public and pri-
vate rights and responsibilities,697
when not compelled to issue bonds.
under the statute, 690.
power of legislature over, 692.
nature and purposes of, 694.
legislature may permit, to build rail-
road, 614.
may be taxed for public improve-
ment, 615.
has sole right to decide as to pur-
chase of park, 700.
Munitions of War,
See CONTKABAND.
Murder,
definition of, by Lord Coke, 11.
malice essential ingredient of crime,
192, 195.
as distinguished from manslaughter,
102, 196.
Murray, William,
See Mansfield, Lord.
Natural Law,
when forms part of contract obli-
gation, 526.
in harmony with municipal law, 527.
Necessary Laws,
. within the Constitution, 279.
Negligence,
of gratuitous bailee, 50.
when, must be shown in trespass, 632.
Negro,
cannot be held in bondage in Eng-
land, 113.
declared by General Butler contra-
band of war, 156.
Neutral,
rights of, 156.
intercourse in time of war, 163.
insurer liable in neutral country, 163.
788
INDEX.
Kisbet, Eu^enlns A.;
opinion in Culbreath v. Culbreath,
507.
Notary,
in barbarous countries, demand of
note need not be made by, 183.
Notice,
•with regard to partnership dealings
when chargeable to vendor, 231.
Nottingham, Lord, on subject of
privUeeed communications, 330.
Noxious Vapors,
liability for, absolute, 631.
Nuisance^
obstructing watercourse, a private
nuisance, 338.
equity has concurrent jurisdiction
to abate by injunction, 338.
when established malice need not
be shown, 546.
when length of time as to, im-
material, 547.
Oath, nature and sanctity of, 504.
Office,
power of legislature to transfer, 347.
distinction between constitutional
and statutory, 371.
right to resign from, 375.
removal from works material in-
jury, 376.
See also Public Office.
Ogden T. Saunders,
does not conflict with May v. Breed,
534.
distinct views entertained by the
Court in, 534.
Falairet's Appeal, 659-676.
Parent,
may change domicil of child, 418.
Parker, Chief Justice,
on lex fori and leao loci co'ntraetua, 538.
anticipates the question in May v.
Breed, 531.
Parliament,
cannot afford a remedy for de-
privation of elective franchise, 34.
certain powers of, denied in Ameri-
ca, 359.
Parsons, Theophilns,
sketch of his character, 155.
opinion of, in Richardson v. The
Marine Insurance Co., 158.
opinion in Milford v. Worcester, 171.
opinion in Greenwood v. Curtis, 179.
opinion in CoflSn v. CoflBn, 187.
opinion in Com. v. Thompson, 193.
opinion in Com v. Newell, 198.
Partnership,
law of, as between partners, 216.
note, when it does not bind, 317.
Partnership — contvrmed.
evidence admissible to show an
individual liability, 320.
existence of, a question of fact for
the jury, 321.
must be something in the nature of
the debt to bind the firm, 222.
indicia by which nature of, must be
ascertained, 233.
when one partner cannot bind, 224.
authority of Lord Kenyon on, 334.
creditor chargeable with notice that
he is not dealing with, 335.
Fawns and Pledges, 47.
Peck V. Ellis, 233.
Penn, William, legality of act di-
vesting estates of, 669,
Pennsylvania,
bequests to, by Stephen Girard, 480.
law of charities in, 497.
Pensacola Telegraph Company t.
W. U. Tel. Co., 707.
People T. Common Council of De-
troit, 685.
People y. Hnrlbnt, doctrine in, 698.
Performance of Contract,
when substituted allowed, 529.
governed by the lex loci not.the lex
fori, 530.
Peril,
fear of loss, not a pe-il within
policy, 169.
what constitutes impending, 585.
degree of, in salvage cases, 590.
Perpetual Rents,
act to extinguish, declared void, 664.
an estate in land, 678.
are contrary to American institu-
tions, 678.
may be abolished by legislature,
679, 683.
Petition of Right,
importance of, 3.
contents of, 3.
parallel between, and declaration of
independence, 3.
Physician,
acting honestly, though ignorantly,
when not guiltj of murder, 197.
Pleading,
severity of the old rule as to, re-
laxed, 187.
wrong word in, after verdict, may
be disregarded, 188.
early statute allowing amendments
in, 191.
Plowden, Edmund,
mention of reports of, 5, 6.
Polygamy,
a crime not excusable on grounds
of religious belief, 716.
proper charge in case of, 780, 783.
INDEX.
189
Possession,
under color of title when it wUl not
prejudice true owner, 142.
Postmaster, right of, in England, to
transmit telegrams, 759.
Post Obit contracts nature of, 77.
Post Offices, power of Congress to
regulate and use telegraph in, 710.
Powers,
which exist by implication, in Con-
gress, 381.
of government cannot be taxed, 390.
of government cannot be surren-
dered by implication, 396.
Precedents,
when not controlling, 510.
Preferences,
as between domestic creditor and
foreign assignee, 536-538.
Premeditation, evidence of, in cases
of homicide, 573.
Presumption,
circumstances on which presump-
tion of payment arises, 66.
in case two bonds are given to
secure same debt, 66.
Priest,
validity of marriage, not solemnized
by, 435.
onus on prisoner in bigamy cases to
show necessity for, 430.
presence of, not necessary prior to
Council of Trent, 480.
marriage by pseudo priest, 456.
marriage where it is impossible to
procure, 458.
what kind of priest essential to
marriage contract, 460.
Private Nuisance,
when indictable, 363.
Private Property,
cannot be taken for public use
without compensation, 336.
secured inviolate by organic law,381.
must be protected, 358.
rights, vindication of, produced the
American Revolution, 358.
legislature cannot transfer to indi-
vidual, 363.
must bear share of public burdens,
607.
what constitutes "taking" of, 608.
cannot be taken for private use, 609,
661.
Privileged Communications,
as between attorney and client, 823.
reason of the rule, 338.
apparent exceptions to rule, 339, 333.
Pro Confesso, bill so taken equal to
an admission, 152.
Professional Advice,
information given for, protected,327.
Prohibition, power of Court to grant
the writ, 15.
Promise,
a good consideration for, 19.
forbearance to sue, good considera-
tion for, 31.
Property. See Privatb Pkopbrtt.
Protest, when waived in barbarous
countries, 183.
Public Oiflce,
power of legislature to transfer, 347.
when regarded as private property,
364.
always subject to control of legisla-
ture, 366.
may be abolished, 367.
distinction between abolition and
transfer of emoluments, 368.
See also Office.
Public Policy,
grounds of, in equity to relieve
against infant's contracts, 59.
when ground for cancelling mort-
gage by young heir, 60.
true meaning of the doctrine, 75.
when wager not contrary to, 106.
how far vested rights must yield
to, 139.
requires there should be no contri-
bution between wrong-doers, 239.
doctrine of implied grants contrary
to, 401.
restriction in Girard wiU not con-
trary to, 501.
Public Use, illustration of what
constitutes, 666.
Public Works,
railroads are public works. 613.
may be built by municipality, 614.
Puffendorf on right of eminent do-
main, 230.
Pulteney v. Warren,
authority of Lord Eldon in, 147.
Purchase,
distinguished from a loan, 73.
Purchaser under creditor's judgment
entitled to all creditor's rights, 250.
Quaker Marriages, validity, 177,461.
Quantum Meruit, agreement to pay in
salvage cases must be express, 589.
Queen v. Millis, 425.
Question of Fact,
insanity in homicide cases a ques-
tion of fact, 574.
right to read evidence given in
former trial a, 734.
Question of Law,
court, not the jury, sole judge of, 558.
libellous intent not a, 559.
may be certified to Supreme Court,
561.
790
INDEX.
(Jnestion of Law — contimued.
must be decided by the court, 598.
Quod Ciiin,
in declarations in trespass, 187.
Railways,
right of, in streets, 540.
See also CoKPOBATioNB; High-
ways.
authorized for public convenience,
not for private gain, 549.
a public, not a private work, 613.
Randolph, John, of Roanoke,
view of dueling, 123.
Ratiflcatiou,
power of equity to relieve against,58.
of infant's contract, when voidable,
58.
of wager contract good, 67.
of voidable contract, when binding,
79
Reconstruction, validity of, 650.
Redesdale, Lord,
notice of, 133.
opinion in Bond v. Hopkins, 137.
Reg'ina t. Paty, 37.
Religion, legal and constitutional
meaning of, 737.
Religious Belief,
no excuse for crime, 716, 736, 731.
Remedy,
exists, wherever there is a right, 31.
when by private action; when by in-
dictment, 33.
when governed by the law of the
forum, 539.
argument on application, where
remedy is discretionary, 750.
Representative, legal definition, 703.
Resignation, right of, considered,375.
Retrospective Legislation,
not necessarily unconstitutional,386.
Re.vnolds v. United States, 716.
Richardson v. The Mar. Ins. Co. 158.
Right. See Petition of Right.
Rights and Remedies,
reciprocal terms, 31.
how far vested rights must yield to
public necessity, 139.
distinguished from obligations, 647.
Roman Catholic Church, priest not
essential to marriage in, 433.
Ruifin, Thomas,
notice of, 847.
opinion in Hoke v. Henderson, 349.
Running Stream. Bee Water.
Sale, when fraudulent, will be set
aside in equity, 340.
Salvage,
request by insurer to tow vessel will
not bar, 588.
Salvage— «m