« ForrigeFortsett »
establishment of civil government included the | criminal, including causes in law, equity, reveestablishment of different departments of such nue and admiralty, and particularly all such government, judicial as well as others. The ordinance of General Kearney establishing civil government in New Mexico, with courts of civil and criminal jurisdiction, provided that the judges of those courts should be appointed by the President of the United States. Same documents, No. 19, p. 30.
The case of Leitensdorfer v. Webb, 20 How., 176, 15 L. ed. 891, cited by the majority in support of their views, does not, therefore, appear to me to touch the real question at issue. There, General Kearney, having his specific instructions from the President, and, as this court stated in that case, "Holding possession for the United States, in virtue of the power of conquest and occupancy, and in obedience to the duty of maintaining the security of the inhabitants, ordained, under the sanction and 305*] *authority of the United States, a provisional or temporary government for the acquired territory."
As to the appointment of Judge Peabody as provisional judge of New Orleans, which was held valid in the case of The Grapeshot, 9 Wall., 129, 19 L. ed. 651, a case cited as conclusive of the question under consideration here, the appointment came directly from the President. On the 20th of October, 1862, he issued his order, reciting that the insurrection had temporarily subverted and swept away the civil institutions of Louisiana, including the judiciary and judicial authorities of the Union, so that it had become necessary to hold the State in military occupation, and that it was indispensable that there should be some judicial tribunal existing there, capable of administering justice; and that, therefore, he had thought proper to establish and did establish a provisional court, and appoint a judge thereof, with authority to hear, try and determine all causes, civil and criminal, including causes in law, equity, revenue and admiralty, conforming his proceedings as far as possible, to the course of proceedings, and practice of the courts of the United States in Louisiana, but that the appointment of the judge should not extend beyond the period of military occupation of the City of New Orleans or the restoration of the civil authority in that city and State.
The following is the order of President Lincoln, from which the Provisional Court in New Orleans derived its existence:
"EXECUTIVE MANSION, WASHINGTON, October 20, 1862. The insurrection which has for some time prevailed in several of the States of this Union, including Louisiana, having temporarily subverted and swept away the civil institutions of that State, including the judiciary and judicial authorities of the Union, so that it has become necessary to hold the State in military occupa tion, and it being indispensably necessary that there should be some judicial tribunal existing there capable of administering justice, I have, therefore, thought it proper to appoint, and I do hereby constitute a Provisional Court, which shall be a court of record for the State of Louisiana, and I do hereby appoint CHARLES A. PEABODY, of New York, to be a provisional judge. to hold said court, with authority to bear, try and determine all causes, civil and
powers and jurisdiction as belong to the District and Circuit Courts of the United States, conforming his proceedings, so far as possible, to the course of proceedings and practice which has been customary in the courts of the United States in Louisiana; his judgments to be final and conclusive. And I do hereby authorize and empower the said judge to make and establish such rules and regulations as may be necessary for the exercise of his jurisdiction, and to appoint a prosecuting attorney, marshal and clerk of the said court, who shall perform the functions of attorney, marshal and clerk, according to such proceedings and practice as before mentioned and such rules and regulations as may be made and established by said judge. These appointments are to continue during the pleasure of the President, not extending beyond the military occupation of the City of New Orleans, or the restoration of the civil authority in that city and the State of Louisiana. These officers shall be paid out of the contingent fund of the War Department, compensations as follows: The judge at the rate of $3,500 per annum; the prosecuting attorney, including the fees, at the rate of $3,000 per annum; and the clerk, including the fees, at the rate of $2,500 per annum; such compensation to be certified by the Secretary of War. A copy of this order, certified by the Secretary of War, and delivered to such judge, shall be deemed and held to be a sufficient commission. Let the seal of the United States be hereunto affixed. [L. S.] ABRAHAM LINCOLN.
By the President:
WILLIAM H. SEWARD,
Secretary of State."
Upon the restoration of the civil authority the Provisional Court thus established ceased to exist. In July, 1866, Congress enacted that all suits, causes, prosecutions and proceedings of that court, proper for the jurisdiction of the District or Circuit Court of the United States for Louisiana, should be transferred to those courts respectively, and be heard and determined therein, and that all judgments, orders and decrees of the Provisional Court, in cases thus transferred, should at once become the orders, judgments, and decrees of the district or circuit court, as the case *might be, [*306 and be enforced, pleaded and proved accordingly. 14 Stat. at L., 300.
We thus have the establishment of the court by the President, and the recognition of the legality of its establishment by Congress. Surely there is no analogy between that case and the one at bar.
No other case is cited in support of the extraordinary judgment of the Provost Court we are now considering, and I feel confident that there is no authority in the previous decisions of this court for the doctrine announced by the majority in their opinion.
I do not question that it was competent for the President to authorize the establishment by military officers, or civilians appointed military governors, of temporary courts, to continue during the war, with civil as well as criminal jurisdiction to the extent essential for the security of persons and property, in territory dominated by our forces, after the overthrow
The position that the judgment of the Provost Court was validated by article 149 of the Constitution of Louisiana of 1868, does not seem to me to merit any consideration. The article requires, for the validation of the judg ment, that it must have been rendered in accordance with existing laws in the State, and the assertion that any laws of the State at the time authorized the establishment of a Provost Court, or that such court should rehear a case upon the mandate of a commanding general of the United States, is a proposition which needs only to be mentioned to be answered. The following is the 149th article of the Constitution of Louisiana of 1868:
of the insurgent power of the Confederates. | tion of law, however difficult; but he was not
But supposing that the Provost Court in the present case was rightly invested with civil jurisdiction, there was nothing to justify its judgment in the case mentioned. It had already given its judgment that the suit before it, of the Union Bank should be dismissed. There its powers ended. What subsequently it did was done under the dictation of its mili
"Art. 149: All rights, actions, prosecutions, claims, contracts and all laws in force at the time of the adoption of this Constitution, and not inconsistent therewith, shall continue as if it had not been adopted; all judgments and judicial sales, marriages and executed contracts made in good faith and in accordance with existing laws in this State rendered, made or entered into between the 26th day of January, 1861, and the date when this constitution shall be adopted, are hereby declared to be valid, except the following laws," etc.
Besides, it is a novel doctrine in this country, that a judgment affecting private rights of property, not merely defective for want of compliance with some matter of form, but absolutely void for want of jurisdiction in the court to render it, can be validated by subsequent enactment, legislative or constitutional. I know of no judicial determination recognizing any such doctrine or even looking that way.
Mr. Justice Bradley desires me to say that
THE NEW JERSEY RAILROAD & TRANS-
tary superior; and so, as if in derision of the
A judgment thus rendered wants all the ele
(See S. C., 22 Wall., 341-350.)
ties as witnesses-depositions of-injury,
when evidence of negligence.
ments of a judicial determination, and is enti-Nonsuit, when denied―requests to charge-par-
"COMMISSION AS MILITARY GOVERNOR.
WAR DEPARTMENT, WASHINGTON CITY, June 3, 1862. HON. GEORGE F. SHEPLEY, &c., &c. :
SIR-You are hereby appointed Military Governor of the State of Louisiana. with authority to exercise and perform, within the limits of that State, all and singular the powers, duties and functions pertaining to the office of military governor (including the power to establish all necessary offices and tribunals and suspend the writ of habeas corpus), during the pleasure of the President, or antil the loyal inhabitants of that State shall organize a civil government in conformity with the Constitution of the United States. By the President.
[SEAL OF U. S.] 22 WALL.
E. M. STANTON.
1. Where the evidence submitted by the plaintiff was sufficient to justify the court in leaving the case to the jury, the court did not err in refusing a nonsuit.
2. There is no error in the refusal of a court to charge the jury as requested, when such request involved the determination of a question of fact by the court, upon which there was a conflict of evidence.
3. In the courts of the United States, parties
4. An injury upon a railroad car, while the pas
'N ERROR to the Circuit Court of the United States for the District of New Jersey. This action was brought in the court below by defendants in error, to recover damages for personal injuries sustained by Sarah H. PolÎard while a passenger on defendant's railroad. The evidence for the plaintiffs showed that the defendant's train, on which Mrs. Pollard was a passenger, was approaching the depot at Jersey City; Mrs. Pollard was standing, her limbs braced against the seat from which she had just arisen engaged in fixing her little girl's hair, preparatory to leaving the cars; the train was moving slowly and about to enter the depot, and passengers were getting out and off; there was then a jerk or lurch or concussion of the cars which threw Mrs. Pollard backward, so that the lower part of her spine struck against the arm of the seat, causing her serious and permanent injuries; that with Miller's patent platform and buffer, there is no jerking or jolting of the cars.
that there The defendant's evidence was: was no unusual jolt; and that Miller's coupling did not make a train steadier.
The deposition of Sarah A. Pollard, taken de bene esse, was admitted in evidence, against the defendant's objection. The plaintiff requested the court to charge the jury, among other things, as follows:
"1. That the facts of this case are not of that character which would warrant, on the part of the jury, an inference that the defendant was guilty of a want of care and skill: and the jury must look to affirmative proof of want of care and skill in coming to any verdict in this case.
2. That the facts of this case are not such as to warrant the conclusion that there was a want of care on the part of the defendant. 3. If, under all the facts of this case, the jury are unable to find how or in what manner the injury was caused, that there would not be sufficient proof of negligence or want of skill on the part of the defendant to enable the plaintiffs to recover."
To which the court said:
"I decline to charge as requested in the first and second prayers, for the reason that they ask the court to decide disputed questions of fact, which it is the peculiar province of the jury to settle.
If the fourth prayer means that the jury has no right, from the facts and circumstances proved, to infer negligence or want of skill and care on the part of the defendant, unless they are able to find how and in what manner the injury was caused, it is not a proper request in the present case, and I decline to so charge the jury."
To these rulings of the court the defendant excepted and, upon verdict and judgment for the plaintiff, sued out this writ of error:
Mr. J. W. Scudder, for plaintiff in error: The rule of law is that the negligence of the defendant cannot be presumed by reason of the proper care on the part of the plaintiff. There must be positive proof, on the part of the plaintiff, of the negligence of the defendant.
The burden of proof as to want of care on the part of the defendant is on the plaintiff.
"That, while the plaintiffs are bound to satisfy the jury that the injury was caused by the negligence of the defendant, if, from the evidence, the jury are satisfied that the injury was occasioned while she was a passenger on defendant's road, and that she was in the exercise of ordinary care, namely: that degree of care which may reasonably be expected from a person in her situation, this would be prima facie or presumptive evidence of defendant's liability, and the plaintiffs would not be reParrot v. Wells, 15 Wall., 524, 21 L. ed. quired to show by what particular acts of misconduct or negligence on the part of the de- 206; Tourtellot v. Rosebrook, 11 Met., 460; fendant the injury was occasioned; that in Robinson v. Fitchburg and Worcester Railroad such case as supposed above, the defendant Co., 7 Gray, 97; Hammack v. White, 11 C. B. Company must show, the burden being upon it, N. S., 594 (106 Eng. C. L.); Curtis v. Rochthat its whole duty was performed, and that ester & Syracuse R. Co., 18 N. Y., 543; Transthe injury was unavoidable by human fore-portation Co. v. Downer, 11 Wall., 134, 20 L sight; that the Company was bound to use the ed. 161. best precautions and improvements in known practical use to secure the safety of its passengers; public policy and safety requiring that it be held to the greatest possible care and diligence."
To which the court said:
"The fourth prayer is also ruled to be the law, as decided by the Supreme Court of the United States in Stokes v. Saltonstall, 13 Pet., 181; but you will be careful not to consider any presumption against the defendant until you are satisfied by affirmative proof, on the part of the plaintiff, that she was in the exercise of reasonable care and caution when the injury was sustained.
The first part of the fifth prayer is the legal sequence of the fourth, and while the latter part is the law, it has no application to this case as developed by the testimony, unless the jury think that they are warranted by the evidence in finding that the Company ought to have adopted the Miller buffer."
The defendant's counsel asked the court to charge, among other things:
The first and second prayers on the part of the defendant were sound propositions as applicable to the case, and the court declined to charge the same.
These propositions were not designed, as the court erroneously supposed, to withdraw the case from the determination of the jury; but it was a request to state to the jury that they must not be controlled by inference, but rely only on facts affirmatively proven.
The testimony of Mrs. Pollard, she being the wife of Jerome B. Pollard, was unlawfully admitted.
Her testimony was taken de bene esse and objected to.
Lucas v. Brooks, 18 Wall., 436, 21 L. ed.
The taking of a deposition de bene esse depends on the statute law solely.
If a party should be allowed to testify, such party cannot be examined de bene esse without express statutory authority.
"The mode of proof in the trial of actions at common law shall be oral testimony and ex89 J. S.
amination of witnesses in open court, except as hereinafter provided." Rev. Stat. of U. S., 162, sec. 861.
The Acts of Congress in relation to parties being witnesses, lead to the conclusion that a party cannot be examined de bene esse except by express authority.
Such express authority has been given with reference to witnesses in the courts of the District of Columbia, but not in other courts.
Act, July 2, 1864, sec. 3, 13 Stat. at L., 351. Mr. Albert A. Abbott, for defendants in
The laws which govern the courts of the United States in the taking and reception in evidence of depositions de bene esse are the Statutes of the United States, viz.:
Act, Sep. 24, 1789, § 30, 1 Stat. at L., 88; Act, March 1, 1817, 3 Stat. at L., 350; Act, July 29, 1854, 10 Stat. at L., 315; Act, May 9, 1872, 17 Stat. at L., 89; Keary v. Farmers' Bank, 16 Pet., 89; McCracken v. Hayward, 2 How., 608.
Under the above statutes, the deposition of any person, whether party or otherwise, may be taken and read in evidence in the manner and for the causes therein stated.
The charge of the court correctly stated the law as decided by this court, and it would have been proper for the court to charge exactly as requested and without qualification.
Stokes v. Saltonstall, supra; Brown v. N. Y. Cent. R. R. Co., 34 N. Y., 404; Hegeman v. Western R. R. Co,, 13 N. Y., 1; Story, Bail., sec. 601; The New World v. King, 16 How.. 469; Railroad Co. v. Derby, 14 How., 468. The defendant's prayers request the court to find upon pure matters of fact. Such an interference upon the province of the jury has never been tolerated by this court.
A direction to find for one party or the other can only be given where there is no conflict of evidence. Klein v. Russell (ante, 116), per Swayne, J.; Railroad Co. v. Stout, 17 Wall., 657, 21 L. ed. 745.
The law arising upon the evidence was given by the court to the jury with such fullness as to guide them correctly in their findings, and there would have been no error even had the court refused to give a correct instruction.
Railway Co. v. Whitton, 13 Wall., 270, 20 L. ed. 571.
Mr. Chief Justice Waite delivered the opinion of the court:
It is unnecessary to decide, in this case, whether the Act of June 1, 1872, R. S., sec. 914, by which the practice, pleadings, forms and modes of proceedings, etc., in the Circuit and District Courts of the United States are made to conform, as near as may be, to the practice, pleadings, forms and modes of proceedings in the courts of the States, gives to the circuit courts the power to order a nonsuit against the will of the plaintiff in States where that power exists in the state courts, because, upon an examination of the record, we are all of the opinion that the evidence submitted by the plaintiff was sufficient to justify the court in leaving the case to the jury.
It is conceded that the part of the charge to the jury excepted to is fully sustained by the decision of this court in Stokes v. Saltonstall,
13 Pet., 181. We see no necessity for reconsidering that case.
There was no error in the refusal of the court to charge the jury as requested by the defendants. Each request involved the determination of a question of fact by the court where there was, to say the least, a conflict of evidence.
We have decided at the present term, in Texas v. Chiles, not yet reported, ante, 650, that in the courts of the United States, parties to a suit are, by Acts of Congress, put upon a footing of equality with other witnesses, and are "admissible to testify for themselves and compellable to testify for the others."
This disposes of all the errors assigned in this case.
The judgment of the Circuit Court is affirmed.
UNITED STATES, Appt.,
DAVID G. FARRAGUT, Admiral, etc., et al. (See S. C., 22 Wall., 406-424.) Admiralty case, submission of to arbitration-effect of construction of submission-when award conclusive-when set aside-capture -distribution of prize money-enemy property-error.
1. There is nothing in admiralty jurisdiction which prevents parties in that court, whether sitting in prize or as an instance court, from submitting their case by rule of the court to arbitra
2. An award in such a case is to be construed, and its effect determined in this court, by thesame general principles which would govern it in a court of common law or of equity.
3. An expression in the agreement of submission, that all questions of law in the case are to beconcluded by the award is only a submission of all matters involved in the suit.
4. Where the award finds facts it is conclusive;. where it finds propositions of law. unmixed with facts, its mistake can be corrected in this court. 5. Where a proposition is one of mixed law and fact. in which the error of law, if there be one, cannot be distinctly shown, the parties must abide by the award.
6. The award was also liable to be set aside in the court below, for exceeding the power conferred by the submission, for mistake of law, for fraud and for all the reasons for which awards are set
aside in courts.
7. These principles applied to a libel in admiralty against captured vessels as prize of war to procure their value to be distributed among the
NOTE. When awards will be set aside by a court of equity and when not-see note to Burchell v. Marsh, 15 L. ed. U. S. 96.
Domicil in enemy's country, or neutral country, in war; effect of on goods shipped-see note to The Frances, 3 L. ed. U. S. 581; and note to The Mary & Susan. 4 L. ed. U. S. 32.
Joint capture; what vessels entitled to share in distribution of prize money.
If a decree of condemnation is rendered, it is then the duty of the court to determine what vesThe sels are entitled to participate in the prize. Weehawken v. The Atlanta, 18 L. ed. U. S. 253; 2 Sprague, 253.
Under the statutes of the U. S., all vessels of the navy within signal distance of the vessel or vessels making the capture, under such circumstances and in such condition as to be able to render effective aid, if required, share in the prize; and in case of vessels not of the navy, none shall be entitled to share except the vessel or vessels making the capture; in them shall be included vessels present at and rendering actual assistance in the capture. The successive Acts upon the subject are: 1779, ch. 24. 1 Stat. at L.. 715; 1800, ch. 33, 2 Stat. at L., 52; 1862. ch. 204, 12 Stat. at L. 606: 1864, ch. 174, 13 Stat. at L., 306; U. S. R. S. §
Statute of 1864 does not alter rule of distribu879
officers and crew of the capturing force, which wa by agreement referred to arbitration.
8. Whether the capture was a conjoint opera tion of the army and navy, is mainly a question of fact, and the award is conclusive upon it.
9. So also the names of the vessels participating in the capture, and the value of the captured prop erty, are all questions exclusively of fact, and the finding is a finality.
10. Whether the property was lawful prize, and subject to condemnation, was to be decided by the arbitrators; and unless they violated some princi ple of law in deciding it, the award must be confirmed.
1. Property of persons domiciled or residing within the enemy's lines is enemy property, and liable to capture as prize of war, without regard to their sentiments of loyalty or disloyalty to the
United States Government.
12. In holding that vessels of such persons were liable to capture and condemnation and lawful prize of war, the arbitrators did not violate any principle of law.
13. But in awarding the value of these vessels to the captors as prize, and in addition thereto forty per cent. of that value for salvage, they did violate law. [No. 234.]
Argued Apr. 23, 1875. Decided May 3, 1875.
PPEAL from the Supreme Court of the District of Columbia.
The case is stated by the court. Messrs. Geo. H. Williams, Atty-Gen., and R. M. Corwine, for appellant:
Every question which was properly cognizable before the arbitrators or which might have been considered by the court, had not the reference been made, is open for inquiry. The case is here for the determination by the court, of the question, whether what was done by the arbitrators was legal, and whether the Supreme Court of the District of Columbia had sufficient authority to render judgment on that award. The appeal vacates the decree of the lower court, and the case is tried de novo, as are appeals to this court from other decrees and judg ments in prize cases. Such appeals are always tried on the original pleadings and evidence used in the court below, though oftentimes the parties are allowed to take additional evidence after the case reaches this court. The arbitrators specifically find that the capture was not a conjunct operation of the Army and Navy of the United States. This is a mistake of law and fact.
The fundamental rule is, that there is no
tion in pending cases. Distribution of Prize Money, 11 Op. Atty Gen., 102.
Co-operation in a blockade does not make the blockading vessels joint captors if the prize was captured out of signal distance of them, although the chase was begun in sight of several of the vessels. The Cherokee, 2 Sprague, 235, 3 Am. L. Reg., 289; The St. John, 2 Sprague, 266.
Those vessels who claim to participate in the proceeds solely on the ground that they were within signal distance, have the burden of proof on them to establish their claim. It must appear that they were within a distance at which signals could have been seen in the state of atmosphere and other circumstances existing at the time and it is not enough to place them within a distance at which signals could have been seen under other circumstances. The Ella & Anna, 2 Sprague, 267: The Aries, 2 Sprague, 262; The St. John, 2 Sprague, 266 The Anglia, Blatchf. Pr. 566.
Under the Acts of March 25, 1862, and July 17, 1862, an armed merchant vessel not in the service of and having no commission from the U. S., although she is present at the capture of the prize and co-operates therein, is not entitled to share in the proceeds. The Merrimac, Blatch. Pr., 584.
In the absence of statute regulating the distribution of prizes to private armed ships, the claims
orize of war where the work was done and the property captured by the conjunct action of the Army and Navy; that is, where it was the consequence of the concurrent action of both. This is the English rule.
La Bellone, 2 Dod., 343.
In the United States, the court has laid down the rule for guidance in this class of cases in the opinion in The Siren, 13 Wall., 389, 20 L. ed. 505.
The syllabus is this:
"The right of the vessels of the Navy of the United States to prize money comes only in virtue of grant or permission from the United States; and if no Act of Congress sanctions a claim to it, it does not exist."
No such Act gives prize money to the navy in cases of joint capture by the army and navy. In cases of such capture, the capture is exclusively to the benefit of the United States.
There is another serious objection to the maintenance of this judgment.
These captures, being of private property on the inland waters of the United States and made during the rebellion, viz.: April, 1862, are controlled by the series of laws passed prior to and after the capture. These laws require that all such property shall be for the benefit of the United States, or held in trust for the owners.
See, Act of July 13, 1861, 12 Stat. at L., 255, etc.
The Supreme Court of the United States says in the case of The Cotton Plant, 10 Wali., 577, 19 L. ed. 983, speaking of the 7th section of the Act of July 2, 1864, above cited: "The Act was passed during the war of the rebellion, and part of a system of laws devised for seStates and districts declared to be in insurreccuring captured and abandoned property in tion, by the President's Proclamation of July
See, also, Mrs. Alexander's Cotton, 2 Wall., 404, 17 L. ed. 915, where the same doctrine is held.
There is no legal evidence of the value of these vessels.
There are several objections to the paper offered.
1. There was at the time, no law which auof such vessels, in cases of joint capture, must be settled by the general law of relative strength, and this is to be determined by the number of men on board each ship. The Dispatch, 2 Gall., 1.
As to what constitutes "signal distance," within the meaning of the Act regulating the distribution of prize money, see The Aries, 2 Sprague, 262, 10 L. Rep., N. S., 336; The St. John, 2 Sprague 266; The Ella & Anna, 2 Sprague, 267, 16 L. Rep., N. S., 669; The Ella, 2 Int. Rev. Rec., 117. Six miles said be the ordinary limits of "signal distance.' The R. E. Lee, 1 Low,, 36. No Act gives prize money to navy in case of joint capture by army and navy. In such cases, capture inures exclusively to benefit of the United States. The Siren, 20 L. ed. U. S. 505.
Where a vessel was fitted out within a loyal State and seized, libeled and condemned on the instance side of the court, the officers and crew of U. S. man of war who aided in the capture are not entitled to a share of the proceeds. Proceeds of The Chapman, 4 Sawy., 501.
To entitle a vessel to share in the distribution of prize money, she must have been within signal distance and part of the force commanded by the officer who made the capture, and so situated that she could have rendered assistance in the conflict. The Selma, 1 Low., 30.