Sidebilder
PDF
ePub

Consignor and Consignee.

master on marine interest, unless he has been directed by the consignor to appropriate the freight to another purpose. Ibid.

67. An instrument, claimed to be an hypothetion of a vessel, is not such, if it was given to the consignee when he had funds in his hands to secure the advances made by him for the vessel. The John and Alice, 1 Wash. C. C. R.

293.

68. A consignee impliedly contracts, not only for his fidelity in the disposition of the cargo, and for the exercise of his best judgment, but for the exercise of a sound judgment in the management of the business confided to him. If he is authorized to direct the destination of the ship, with a view to the best market, it is his duty to make all necessary inquiries to enable him to find out where the best market is. But if the consignment be general, he is not bound to look out for any other market than that to which the vessel is consigned; and he might make himself liable by sending her to any other, should a loss be there sustained. Kingston v. Wilson, 4 Wash. C. C. R. 310.

ance of the goods. Ruggles v. Bucknor, Paine's C. C. R. 358.

74. In the case of Kingston v. Wilson, in the circuit court of Pennsylvania, 4 Wash. C. C. R. 316, Mr. Justice Washington said:-"I am strongly inclined to think, that if the owner of a cargo overdraw a bill at hazard upon his consignee, before he is apprized of the balance due to him, he does so at the peril of paying the damages upon the return of the bill, without a claim for remuneration by the payer of the bill; if at the time of the refusal to accept the bill the balance was not ascertained, so that he could know to what amount he could with safety accept the bill.”

75. The endorsement and delivery of a bill of lading, or the delivery of the bill without endorsement, if the cargo is, by the terms of it, to be delivered to a particular person, amounts to a transfer of the property, subject to the right of the vendor, if the consideration be not paid, to reclaim the property before it shall get into the actual possession of the vendee. Walter et al. v. Ross et al., 2 Wash. C. C. R. 283.

76. A factor has no property or interest in goods consigned to him beyond his commission, and cannot control the owner's right over them. Ibid.

69. A custom of London was proved, that consignees, having liens on the cargoes consigned to them, insure them against fire; and that the consignee in this case was always in the habit of acting conformably with the custom; 77. If goods be sold and shipped upon the but no evidence was given of a policy in this account and at the risk of the vendor, the bill particular case. If the custom is intended for of lading making the goods deliverable to him, the benefit of the consignor, the consignee is or being assigned to him, transfers the legal title bound to insure; and if he do not, he stands in- in the goods, to the perfection of which nothing surer himself, and is entitled to the premium. is wanted but actual possession. Until this be Aliter, if the custom be merely for the protec- obtained, the vendor retains an equitable right tion of the interests of the consignee. Ibid. to countermand the delivery of the goods; if the 70. A del credere commission is not demand-consideration has not been paid, the consignee able when the sale is made on credit, but never- has, in the mean time, failed. Ryberg & Co. v. theless paid for in cash, in consideration of a Snell, 2 Wash. C. C. R. 403. deduction of a certain per centage. Ibid.

71. It is no objection to the vesting of the right of property in the consignee for value, or whose debt is to be secure, that the goods are, by agreement, to be at the risk, and for account of the consignor. U. S. v. The Delaware Ins. Co., 4 Wash. C. C. R. 418.

72. Where goods on consignment at Boston, were, on failure of the owners, assigned for the benefit of creditors, and before notice to the consignee of the assignment could be reasonably made, another creditor of the debtors attached them, by a trustee process in Boston, the debtor and creditors being citizens of Pennsylvania, it was held, that the assignment, if bona fide, was a sufficient title to pass the goods to the assignees, and to overreach the trustee process. Bohlen v. Cleveland, 5 Mason's C. C. R. 174.

78. P. H., residing in Richmond, Virginia, of the firm of M. H. & Co., London, merchants, wrote to R. D., on the 5th of September, 1793, a merchant of Falmouth, Virginia, informing him of the arrival, in James river, of the ship Molly, chartered by M. H. & Co., to load with tobacco, to be shipped to Europe, consigned to M. H. & Co., and advising R. D. to embrace this favourable time and opportunity, as he deemed it, of shipping tobacco to Europe. The vessel, he said, would "go to Cork for orders, and from thence to any port in Europe, out of the Straits." In another part of his letter, he informed R. D. that, "if peace is not established in France, by the time the Molly arrives at Cork, it is most probable she will be sent to Rotterdam, or some port in Holland." On the 19th of the same month, R. D. wrote in reply, after informing P. 73. One chartered the hold of a vessel for a H. that he had sent fifty-eight hogsheads to be voyage, covenanting to pay freight, the owner shipped by the Molly, "I hope the tobacco will appointing and paying the master and crew, and go to a saving market, as the quality is well fitting out the vessel. A third person shipped suited to the Dutch market, where I expect it goods, and consigned them to the defendant, will ultimately go, as appearances, I conceive, who, on receiving them from the master, pro- strongly indicate a continuance of the war." The mised to pay the freight: Held, that the charter-Molly arrived at Cork about the end of the year party did not deprive the owner of his lien for the freight, and that the defendant became liable to the owner for the freight, by his accept

1793, when M. H. & Co. determined to send the tobacco to France, the war still continuing, and accordingly consigned it to a mercantile house in

Constitution of the United States.

Havre. After experiencing great delay and dif- | claim no powers which are not granted to it by the ficulty in obtaining the account of sales from the constitution; and the powers actually granted consignees in Havre, and using every effort to must be such as are expressly given, or given by get from them the proceeds of sale, M. H. & Co. necessary implication. The instrument is to have finally, in 1803, consented to a compromise, where- a reasonable construction like other grants, acby R. D. was only entitled to £142 4s., after de- cording to the import of its terms; it is not to be ducting costs, commissions, &c., for his propor- restrained to particular cases, unless that contion of the proceeds of the cargo of the Molly. struction grows out of the context expressly, or By the court:-It seems, that although it was by necessary implication; the words are to be clearly the understanding of R. D. that his to- taken in their natural and obvious sense, and not bacco would not be sent to France, should the in a sense unreasonably restricted or enlarged. war continue, yet his letter did not amount to a Ibid. positive instruction, which would deprive the consignees, after the arrival of the tobacco in Cork, of the discretion of sending it to France, if they should deem it advisable for the interests of the consignor to do so. At all events, if the consignor objected to this destination being given to his tobacco, it was his duty to have informed the consignees of it; aud his silence, after he was apprized of its destination, was an implied sanction and approval of the act of the consignees, of which he had no right to complain, after the speculation proved to be disastrous. It seems, however, that only half commissions are chargeable by the consignee in such cases. Dunbar v. Miller, Hart & Co., 1 Brockenb. C. C. R. 85.

CONSTITUTION OF THE UNITED STATES.

3. The constitution unavoidably deals in general language. It did not suit the purpose of the people, in framing this great charter for our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was forseen that that would be a perilous and difficult if not an impracticable task. The instrument was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications which at the present might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require. Ibid.

4. The object of the constitution was to establish three great departments of government: the legislative, the executive, and the judicial departments. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them. Without the latter it would be impossible to carry into effect some of the express provisions of the constitution. Ibid.

1. The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by the people of the United States. There can be no doubt that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary, to extend or restrain those powers, according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be that the people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incom- 5. It is the duty of congress to vest the judipatible with the objects of the general compact; cial power of the United States; it is a duty to to make the powers of the state governments, invest the whole power. The language, if impegiven cases, subordinate to those of the nation; or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The constitution was not, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in state institutions, for the powers of the states depend on their own constitutions, and the people of every state had a right to modify or restrain them, according to their own views of policy or principle. On the other hand, it is perfectly clear that the sovereign powers vested in the state governments, by their respective constitutions, remain unaltered and unimpaired, except so far as they were granted to the government of the United States. Martin, Heir at Law of Fairfax v. Hunter's Lessee, 1 Wheat. 304; 3 Cond. Rep. 575.

2. The government of the United States can

rative as to one part, is imperative as to all. No part of the criminal jurisdiction of the United States can, consistently with the constitution, be delegated to state tribunals. Ibid.

6. The judicial power is delegated by the constitution in the most general terms, and may, therefore, be exercised by congress under every variety of form of appellate or original jurisdiction. Ibid.

7. The appellate power is not limited by the terms of the third article of the constitution to any particular courts. The words are, "the judicial power" (which includes appellate power) shall extend to all cases, &c., and "in all other cases before mentioned the supreme court shall have appellate jurisdiction." It is the case, then, and not the court, that gives jurisdiction. If the judicial power extends to the case, it will be in vain to search, in the letter of the consti

Constitution of the United States.

tution, for any qualification of the tribunal where it depends. Ibid.

8. The framers of the constitution contemplated that cases within the judicial cognizance of the United States not only might, but would arise in the state courts, in the exercise of their ordinary jurisdiction. With this view the sixth article declares, "This constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding." It is obvious that this obligation is imperative on the judges in their official, and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in question. They were not to decide merely according to the laws or constitution of the state, but according to the constitution, laws, and treaties of the United States. Ibid.

9. Under the constitution of the United States the power of naturalization is exclusively in congress. Chirac v. Chirac, 2 Wheat. 259; 4 Cond. Rep. 111.

10. Since the adoption of the constitution of the United States, a state has authority to pass a bankrupt law, provided such law does not impair the obligation of contracts, within the meaning of the constitution, art. 1, sec. 10, and provided there be no act of congress in force to establish a uniform system of bankruptcy conflicting with such law. Sturges v. Crowninshield, 4 Wheat. 122; 4 Cond. Rep. 409.

11. Congress, has, by the constitution, exclusive authority to regulate the proceedings in the courts of the United States; and the states have no authority to control those proceedings, except so far as the state process acts are adopted by congress, or by the courts of the United States under the authority of congress. Wayman v. Southard, 10 Wheat. 1; 6 Cond. Rep. 1.

12. The federal government is one of the delegated powers. All powers not delegated to it, or inhibited to the states, are reserved to the states or the people. Briscoe et al. v. Bank of the Commonwealth of Kentucky, 11 Peters, 257.

13. The constitution was designed to operate on the states in their corporate capacities. It is crowded with provisions which restrain or annul the sovereignty of the states in some of the higher branches of their prerogatives. Martin, Lessee of Fairfax v. Hunter's Lessee, 1 Wheat. 304; 3 Cond. Rep. 575.

14. The language of the constitution is imperative on the states as to the performance of many duties. It is imperative on the state legislatures to make laws prescribing the time, place, and manner of holding elections for senators and representatives, and for electors of president and vice-president. And in these, as well as in other cases, congress have a right to revise, amend, or supersede the laws which may be passed by the state legislatures. Ibid.

15. The constitution of the United States was designed for the common and equal benefit of all the people of the United States. The judicial power was granted for the same benign and salutary purposes. It was not to be exercised exclusively for the benefit of parties who might be plaintiffs in a suit, and who would elect the national forum, but also for the protection of defendants, who might be entitled to try their rights or assert their privileges before the same forum. Ibid.

16. The amendment of the constitution of the United States, by which the judicial power of the United States was declared not to extend to any suit commenced or prosecuted by a citizen or citizens of another state, or by foreign subjects, against a state, prevented the exercise of jurisdiction in any case, past or future. Hollingsworth v. The State of Virginia, 3 Dall. 378; 1 Cond. Rep. 169.

17. The third article of the constitution of the United States describes the extent of the judicial power. The second section closes an enumeration of the cases to which it extends, with "controversies between a state and the citizens thereof, and foreign states, citizens or subjects." A subsequent clause of the same section gives the supreme court original jurisdiction in all cases in which a state shall be a party: the state of Georgia may then certainly be sued in this court. The Cherokee Nation v. The State of Georgia, 5 Peters, 1.

18. It has been truly said, that under a constitution conferring specific powers, the power contended for must be granted, or it cannot be exerted. The power of Congress to give the priority to debts due to the United States, is claimed under the authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the government of the United States, or in any department or officer thereof. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution. The United States v. Fisher et al., 2 Cranch, 258; 1 Cond. Rep. 421.

19. The general principles contained in the constitution are not to be regarded as rules to fetter and control, but as matters merely declaratory and directory; for, even in the constitu tion itself, we may trace repeated departures from the theoretical doctrine that the legislative, executive and judicial powers, should be kept separate and distinct. Cooper v. Telfair, 4 DaÎl. 13; 1 Cond. Rep. 24.

20. The government of the Union is a government of the people; it emanates from them; its powers are granted by them, and are to be exercised directly on them, and for their benefit. Although limited in its powers, the government is supreme within its sphere of action; and its laws, when made in pursuance of the constitution, form the supreme law of the land. M Culloch v. The State of Maryland, 4 Wheat. 316; 4 Cond. Rep. 466.

21. There is nothing in the constitution of the

Constitution of the United States.

22. If the end be legitimate, and within the scope of the constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect. lbid.

United States, similar to the articles of confede-seized while performing, under the sanction of ration, which excludes incidental or implied the chief magistrate of the Union, those duties powers. Ibid. which the humane policy adopted by congress had recommended. He was apprehended, tried and condemned, under colour of a law which has been shown to be repugnant to the constitution, laws and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of the supreme court. It cannot be less clear when the judgment affects personal liberty, and inflicts disgraceful punishment, if punishment could disgrace when inflicted on innocence. The plaintiff in error is not less interested in the operation of this unconstitutional law, than if it affected his property. He is not less entitled to the protection of the constitution, laws and treaties of his country. Worcester v. The State of Georgia, 6 Peters, 515.

23. If a certain means to carry into effect any of the powers expressly given by the constitution to the government of the Union, be an appropriate measure, not prohibited by the constitution, the degree of its necessity is a question of legislative discretion, not of judicial cognizance. lbid.

24. The present constitution of the United States did not commence its operations until the first Wednesday in March, 1789; and the provision in the constitution, that "no state shall make any law impairing the obligation of a contract," does not extend to a state law enacted before that day, and operating upon rights of property vested before that time. Owings v. Speed, 5 Wheat. 420; 4 Cond. Rep. 714.

25. The constitutional power of regulating commerce, extends to the regulation of navigation. Gibbons v. Ogden, 9 Wheat. 1; 5 Cond. Rep. 562.

26. The power to regulate commerce extends to every species of commercial intercourse between the United States and foreign nations, and among the several states. It does not stop at the external boundary of a state. It is general, and has no limitations but such as are prescribed by the constitution itself. So far as it extends, it is exclusively vested in congress; and no part of it can be exercised by a state. Ibid.

27. State inspection laws, health laws, and laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, &c., are not within the power granted to congress to regulate commerce. Ibid.

29. There is nothing in the constitution of the United States which forbids the legislature of a state to exercise judicial functions. Satterlee v. Matthewson, 2 Peters, 413.

32. The provision in the fifth amendment to the constitution of the United States, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. Barron v. The Mayor and City Council af Baltimore, 7 Peters, 243.

33. The constitution was ordained and established by the people of the United States for themselves; for their own government; and not for the government of individual states. Each state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments framed by different persons, and for different purposes. Ibid.

28. The framers of the constitution of the United States must be understood to have employed words in their natural sense, and to have intended what they said; and in construing the extent of the powers which it creates, there is no other rule than to consider the language of 34. The supreme court has no right to prothe instrument which confers them, in connex-nounce an act of the state legislature void, as ion with the purposes for which they are con- contrary to the constitution of the United States, ferred. Ibid. from the mere fact that it divests antecedent vested rights of property. The constitution of the United States does not prohibit the states from passing retrospective laws, generally; but only ex post facto laws. It has been solemnly settled by this court, that the phrase "ex post facto law" is not applicable to civil laws, but to penal and criminal laws, which punish no party for acts antecedently done, which were not punishable at all, or not punishable to the extent or in the manner prescribed. Ex post facto laws relate to penal and criminal proceedings which impose punishments or forfeitures; and not to civil proceedings which affect private rights retrospectively. Watson v. Mason, 8 Peters, 88. 35. The clause in the constitution of the

30. There is no part of the constitution of the United States which applies to a state law, which divested rights vested by law in an individual; provided its effect be not to impair the obligation of a contract. Ibid.

31. The supreme court said: The plaintiff in error was seized in the country of the Cherokee Indians, and forcibly carried away, while under the guardianship of treaties guarantying the country in which he resided, and taking it under the protection of the United States. He was VOL. I.-34

Constitution of the United States.

United States, concerning ex post facto laws, does not extend to civil rights and remedies. The Society for Propagating the Gospel v. Wheeler, 2 Gallis. Č. C. R. 138.

36. It is not the want of an original power in an independent sovereign state, to prohibit loans to a foreign government, which restrains a state legislature from direct opposition to those made by the United States. The restraint is imposed by the constitution. The American people have conferred the power of borrowing money on the government; and by making that government supreme, have shielded its action, in the exercise of that power, from the action of the local governments. The grant of the power, and the declaration of supremacy, is a declaration that no such restraining or controlling powers shall be exercised. Weston v. The City Council of Charleston, 2 Peters, 449.

37. A constitution, from its nature, deals in generals, not in details. Its framers cannot perceive minute distinctions which arise in the progress of the nation, and therefore confine it to the establishment of broad and general principles. The Bank of the U. S. v. Deveaux, 5 Cranch, 61 2 Cond. Rep. 189.

38. The judicial department was introduced into the American constitution, under impres sions, and with views, which are too apparent not to be perceived by all. However true the fact may be, that the tribunals of the states will administer justice as impartially as those of the nation, to parties of every description, it is not less true that the constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors, that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens.of different states. Ibid.

39. The judiciary act must be restrained by the constitution of the United States. Owings v. Norwood's Lessee, 5 Cranch, 344; 2 Cond. Rep.

275.

40. The fourth article of the constitution of the United States, which declares that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state," cannot, by any just construction of its words, be held to embrace an alleged error in a decree of a state court, asserted to be in collision with a prior decision of the same court in the same case. Mitchell v. Lenox, 14 Peters, 49.

41. It will, probably, be found, when we look to the character of the constitution of the United States itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as to the known historical fact that many of its provisions were matters of compromise of op posing interests and opinions, that no uniform rule of interpretation can be applied, which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. Perhaps the safest rule of interpretation, after all, will be found to be to

[ocr errors]

look to the nature and objects of the particular powers, duties, and rights, with all the light and aids of contemporary history, and to give to the words of each just such operation and force, consistent with their legitimate meaning, as to fairly secure and attain the ends proposed. Prigg v. The Commonwealth of Pennsylvania, 16 Peters, 539.

42. If the legislatures of the several states may, at will, annul the judgments of courts of the United States, and destroy rights acquired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. U. S. v. Judge Peters, 5 Cranch, 115; 2 Cond. Rep. 202.

43. The second section of the fourth article of the constitution of the United States, does not extend to a slave voluntarily carried by his master into another state, and there left under the protection of a law declaring him free, but to slaves escaping from one state into another. Butler v. Hopper, 1 Wash. C. C. R. 499.

44. The powers bestowed by the constitution upon the government of the United States were limited in their extent, and were not intended, nor can they be construed with other powers before vested in the state governments, which of course were reserved to those governments impliedly, as well as by an express provision of the constitution. Golden v. Prince, 3 Wash. C. C. R. 313.

45. The state governments retained the right to make such laws as they might think proper within the ordinary functions of legislation, if not inconsistent with the powers vested exclusively in the government of the United States, and not forbidden by some article of the constitution of the United States, or of the state; and such laws were obligatory upon all the citizens of that state, as well as others who might claim rights or redress for injuries under those laws, or in the courts of that state. Ibid.

46. The power of making "rules concerning captures on land and water," which is superadded in the constitution to that of declaring war, is not confined to captures which are extra territorial, but extends to rules respecting enemy's property found within the territory; and is an express grant to congress of the power of confiscating enemy's property found within the territory at the declaration of war, as an independent substantive power, not included in that of declaring war. Brown v. The U. S., 8 Cranch, 110; 3 Cond. Rep. 56.

47. The legislature of a state may enact laws more effectually to enable all sects to accomplish the great objects of religion, by giving them corporate rights for the management of their property, and the regulation of their temporal as well as spiritual concerns. Terret et al. v. Taylor et al., 9 Cranch, 43; 3 Cond Rep. 254.

48. The expressions "admiralty and maritime jurisdiction" in the constitution of the United States, give jurisdiction of all things done upon and relating to the sea; or in other words, all transactions and proceedings relative to com

« ForrigeFortsett »