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Construction of Statutes of States.

what officers in command shall be entitled to | nite mischief would ensue, should the federal them. lbid. 567.

66. A brevet field-officer of the marine corps, commanding at a separate post, without a command equal to his brevet rank, is not entitled to brevet pay and emoluments. Ibid.

67. If such brevet officer is a captain in the line of his corps, and in the actual command of his company, whether he is in command of a post or not, he is entitled to the compensation given by the second section of the act of March 2, 1827. lbid.

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courts observe a different rule from that which has been long established in the state. M'Keen v. Delancy's Lessee, 5 Cranch, 22; 2 Cond. Rep. 179.

73. In cases depending on the statute of a state, and more especially in those respecting titles to land, the federal courts adopt the construction of the state where that construction is settled and can be ascertained. Polk's Lessee v. Wendal, 9 Cranch, 87; 3 Cond. Rep. 286.

74. In the construction of the statute or local 68. The first part of the act attaches brevet laws of a state, it is frequently necessary to recur pay and emoluments to the cornmand of a sepa- to the history and situation of the country, in rate post, for which it is not allowed by law, and order to ascertain the reason as well as the cannot, therefore, influence any right to compen-meaning of many of the provisions in them, to sation which may have accrued to a captain in the line under the second section of the act of 1827. The act is in full force, unrepealed, in any way, by the act of 1834, for the better organization of the marine corps. Ibid.

enable a court to apply, with propriety, the different rules for construing statutes. Preston v. Browder, 1 Wheat. 115; 3 Cond. Rep. 508.

75. The supreme court uniformly acts under a desire to conform its decisions to those of the state courts on their local laws. Mutual Assurance Society v. Watts, 1 Wheat. 279; 3 Cond. Rep. 570.

69. It is not sufficient that a law shall be considered repealed by necessary implication, to establish that subsequent laws cover some, or even all the cases provided for by it; for they 76. The supreme court holds in the highest may be merely affirmative, or cumulative, or respect, decisions of state courts upon local laws, auxiliary. But there must be a positive repug-forming rules of property. Shipp et al. v. Miller's nancy between the provisions of the new laws Heirs, 2 Wheat. 316; 4 Cond. Rep. 132. and those of the old; and even then the repealed law is repealed by implication only, pro tanto, to the extent of the repugnancy. Daviess v. Fairbairn et al., 3 Howard, 444.

70. It is a well-settled principle of construction, that conveyances are, if practicable on any reasonable view of the subject, to be sustained, rather than to be pronounced void; and also that statutes which apparently conflict with each other are to be reconciled, as far as may be on any fair hypothesis; and validity given to each, if it can be done, and is necessary to conform to usages under them, or to preserve the titles to property undisturbed. Beals v. Hale, 4 Howard, 51.

71. William S. Rogers, a white man, was indicted for the murder of Jacob Nicholson, also a white man, in the country allotted to and occupied by the Cherokee Indians. The defendant pleaded that he had incorporated himself with the Cherokee Indians, and had been adopted, recognised, and so treated by the tribe, and was domiciled in their country, and was entitled to all the privileges of the Cherokees; and therefore the court before which he had been tried had no jurisdiction over the case. The act of congress of June 30, 1834, entitled, "an act to regulate trade and intercourse with the Indian tribes, and to preserve the peace of the frontiers," provides that the law shall not extend to crimes committed by one Indian against the person or property of another Indian. Held, that the provision did not extend to the case of a white man who had become incorporated into an Indian tribe. The United States v. Rogers, 4 Howard, 573.

2. Principles applied, in the Courts of the United States, in the Construction of Statutes of the States of the United States.

72. In construing the statutes of a state, infi

77. Where the question upon the construction of the statute of a state relative to real property, has been settled by any judicial decision in the state where the land lies, the supreme court, upon the uniform principles adopted by it, would recognise that decision as a part of the local law. Gardner v. Collins, 2 Peters, 58.

78. In construing local statutes respecting real property, the courts of the Union are governed by the decisions of the state tribunals. Thatcher et al. v. Powell, 6 Wheat. 119; 5 Cond. Rep. 28.

79. The courts of the United States, in cases depending on the laws of a particular state, will, in general, adopt the construction which the courts of the state have given to those laws. Elmendorf v. Taylor et al., 10 Wheat. 152; 6 Cond. Rep. 47.

80. Under the thirty-fourth section of the judiciary act of 1789, the acts of limitations of the several states, where no special provision has been made by congress, form a rule of decision in the courts of the United States, and the same effect is given to them as is given in the state courts. M'Cluny v. Silliman, 3 Peters, 277.

81. The supreme court has uniformly professed its disposition, in cases depending on the laws of a particular state, to adopt the construction which has been given by the courts of the state to those laws. This course is founded upon the principle supposed to be universally recognised, that the judicial department of every government, where such department exists, is the ap propriate organ for construing the legislative acts of that government. Elmendorf v. Taylor et al., 10 Wheat. 152; 6 Cond. Rep. 47.

by the supreme court of the United States, to the 82. On this principle, the construction given constitution and laws of the United States, will be received by the states as their true construction. Ibid.

Construction of Statutes of States.

83. The statute laws of the states must furnish the rule of decision to the federal courts, as far as they comport with the constitution of the United States, in all cases arising within the respective states; and a fixed and received construction of their respective statute laws, in their own courts, makes a part of such statute law. Shelby et al. v. Guy, 11 Wheat. 361; 6 Cond. Rep.

345.

84. The supreme court adopts the local law of real property as ascertained by the decisions of the state courts, whether these decisions are grounded on the construction of the statutes of the state, or form a part of the unwritten law of the state, which has become a fixed rule of property. Jackson v. Chew, 12 Wheat. 153; 6 Cond. Rep. 489.

85. The true exposition of the thirty-fourth section of the judiciary act of 1789, chap. 20, which provides that "the laws of the several states, except where the constitution, treaties, or laws of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, where they apply," is, that the rights of persons and rules of property, as settled in the states, shall be guides to the courts of the United States, in controversies depending before such courts. United States v. Wonson, i Gallis. C. C. R. 5.

86. The laws of the state regulating titles and remedies to real estates, must, in the absence of other regulations by the United States, be, upon general principles, the rules of decision, equally between citizens and foreigners. Society for the Propagation of the Gospel, &c. v. Wheeler, 2 Gallis. C. C. R. 105.

87. If a contract made in a particular state, or with a view to its laws, be discharged under a law of that state, against which no constitutional objection exists; such law would be regarded as a rule of decision by the federal courts, as well as that under which it was created. Golden v. Prince, 3 Wash. C. C. R. 313.

rights or redress for injuries under those laws, or in the courts of that state. Ibid.

91. The establishment of federal courts, and the jurisdiction granted to them in certain speci. fied cases, could not, consistently with the spirit and provisions of the constitution, impair any of the obligations imposed by the laws of the state, by setting up in those courts a rule of decision at variance with that which was binding upon the citizens, and which they were bound to obey. Ibid.

92. The laws of a state, affecting contracts, regulating the disposition and transmission of property, real or personal, and a variety of others, which in themselves are free from all constitutional objections, are equally valid and obligatory within the state, since the adoption of the constitution of the United States, as they were before. They provide rules of civil conduct for every individual who is subject to their power. Ibid.

93. Soon after the decision of a case in the circuit court for the district of East Virginia, a case was decided in the court of appeals of the state, in which the question on the execution law of the state of Virginia was elaborately argued, and deliberately decided. That decision was, that the right to take out an elegit is not suspended by suing out a writ of fieri facias; and, consequently, that the lien of the judgment continues pending the proceedings on that writ. The supreme court, according to its uniform course, adopts the construction of the act which is made by the highest court of the state. The United States v. Morrison, 4 Peters, 127.

94. The supreme court of the state of South Carolina having decided that the act of the legislature of that state of 1744, relative to the commencement, within two years, of actions of ejectment after nonsuit, discontinuance, &c., is a part of the limitation act of 1812, and that a suit commenced within the time prescribed, arrests the limitation; and this, being the decision of the highest judicial tribunal on the con88. The laws of the states, as to rights, fur-struction of a state law relating to titles and real nish rules of decision for the federal courts, under certain qualifications; but as to remedies, they have no binding force in those courts. Campbell et al. v. Claudius, Peters' C. C. R.

484.

89. 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.

property, must be regarded by this court as the rule to bind its judgment. Henderson and Wife v. Griffin, 5 Peters, 151.

95. The legislature must be presumed to use words in their known and ordinary signification, unless that sense be repelled by the context. "The common law" is constantly used in contradistinction to the statute law. Lessee of Levy v. M'Cartee, 6 Peters, 102.

96. The supreme court have uniformly adopted the decisions of the state tribunals, respectively, in the construction of their statutes. This has been done as a matter of principle, in all cases where the decision of a state court has become a rule of property. Green v. Neal, 6 Peters, 291.

90. The state governments retained the right to make such laws as they might think proper, within the ordinary functions of legislation, if 97. In a great majority of the causes brought not inconsistent with the powers vested exclu- before the federal tribunals, they are called on sively in the government of the United States, to enforce the laws of the states. The rights and not forbidden by some articles of the consti- of parties are determined under these laws; and tution of the United States, or of the state; and it would be a strange perversion of principle, if such laws were obligatory upon all the citizens the judicial exposition of these laws by the state of that state, as well as others who might claim | tribunals should be disregarded. These exposi 36*

3 D

Construction of Statutes of States.

tions constitute the law, and fix the rule of pro- | without changing the effect or conclusiveness perty. Rights are acquired under this rule; and it regulates all the transactions which come within its scope. Ibid.

of the verdict of a jury upon the facts litigated on the trial. The party may bring the facts into review before the appellate court, so far as they 98. On all questions arising under the consti- bear upon questions of law, by a bill of exceptution and laws of the Union, the supreme court tions, if there be any mistake of the facts, the may exercise a revising power; and its decisions court below is competent to redress it, by grantare final and obligatory on all other judicial tri-ing a new trial. Parsons v. Bedford et al., 3 Pebunals, state as well as federal. A state tribunal ters, 414. has a right to examine any such questions, and to determine thereon; but its decisions must conform to that of the supreme court, or the corrective power may be exercised. But the case is very different when the question arises under a local law. The decision of this question by the highest tribunal of a state, should be considered as final by the supreme court; not because the state tribunal, in such a case, has any power to bind the supreme court; but because, in the language of the court, in the case of Shelby et al. v. Guy, 11 Wheat. 361, "a fixed and received construction by a state in its own courts, makes a part of the statute law." Ibid.

103. The supreme court, in accordance with a steady course of decision for many years, will carefully examine and ascertain if there be a settled construction by the state courts of the statutes of the respective states, where they are exclusively in force; and abide by, and follow such construction when found to be settled. Bank of the United States v. Daniels et al., 12 Peters, 32.

104. It is undoubtedly the duty of the court to ascertain the meaning of the legislature, from the words used in the statute, and the subject> matter to which it relates; and to restrain its operations within narrower limits than its words import, if the court are satisfied that the literal meaning of its words would extend to cases which the legislature never designed to include in it. Lessee of Brewer v. Blougher, 14 Peters, 178.

105. In expounding a penal statute, the court, certainly, will not extend it beyond the plain meaning of its words; for it has been long and well settled that such statutes must be construed strictly. Yet the evident intention of the legis lature ought not to be defeated by a forced and over-strict construction. The United States v. Morris, 14 Peters, 464.

99. If the construction of the highest judicial tribunal of a state forms a part of the statute law, as much as an enactment by the legislature, how can the supreme court make a distinction between them? There could be no hesitation in so modifying the decisions, as to conform to any legislative alteration in a statute; and why should not the same rule apply, where the judicial branch of the state government, in the exercise of its acknowledged functions, should, by construction, give a different effect to a statute from what had at first been given to it? The charge of inconsistency might be made with more force and propriety against the federal tri- 106. A defendant having appeared and pleaded bunals for a disregard of this rule, than by con- to the action, and at the trial having withdrawn forming to it. They profess to be bound by the his plea, the supreme court cannot take notice local law, and yet they reject the exposition of of any matter of abatement in the writ or dethat law which forms a part of it. It is no anclaration. Where the writ had stated both of swer to this objection, that a different exposition was formerly given to an act which was adopted by the federal court. The inquiry is, what is the settled law of the state, at the time the decision is made. This constitutes the rule of property within the state, by which the rights of litigant parties must be determined. Ibid.

100. As the federal tribunals profess to be governed by this rule, they cannot act inconsistently by enforcing it. If they change their decision, it is because the rule on which the decision was founded has been changed. Ibid.

101. The exposition of the acts of the several legislatures is the appropriate duty of the state courts; and the federal courts will always feel great reluctance in breaking the way in explanation of such statutes, and will not do so, unless really necessary for the decisions of cases before them. Coates, Executrix, v. Muse's Adm'r, 1 Brockenb. C. C. R. 539.

the defendants to be citizens of another state than that of which the plaintiff was a citizen, and one of the defendants has been returned not found by the marshal, under the laws of Alabama, it is not necessary in the declaration to aver the citizenship of the absent defendant. Smith v. Clapp, 15 Peters, 125.

107. If any error exists in the calculation of interest in a judgment on a note, on which suit has been brought, the court before whom the suit was brought may, by the laws of Alabama, correct the error. Ibid.

108. A statute was passed by the legislature of Michigan on the 12th of April, 1827, and related to deeds and other conveyances, and went into effect immediately. This was the only law in force as to recording mortgages as well as other deeds until January, 1828. The law provided that all deeds should be recorded in the county of Wayne or the city of Detroit, accord. 102. No court ought, unless the terms of an ing as the land was situated in one or the other. act of congress render it unavoidable, to give a This act, although they were not named, eo construction to the act which should, however nomine, embraced mortgages. An act was pass unintentional, involve a violation of the constitu-ed on the same day which was made applicable tion. The terms of the act of 1824 may well be satisfied by limiting its operation to modes of practice and proceeding in the courts below,

to all mortgages executed after January 1, 1828. A mortgage recorded according to the first act, although recorded after January 1, 1828, was

Construction of the Treaty between the United States and Spain.-Consuls.

legally recorded. A second law on the same subject does not repeal the former one, without a repealing clause or negative words, unless so clearly repugnant as to imply a negative. Beale v. Hale, 4 Howard, 53.

CONSTRUCTION OF THE TREATY BE-
TWEEN THE UNITED STATES AND
SPAIN, OF 1795.

1. The sixth article of the treaty with Spain, of 1795, continued in full force, in this particular, by the treaty ratified in 1821, seems to have had principally in view, cases where the property of the subjects of either state had been taken possession of within the territorial jurisdiction of the other, during war. The eighth article provides for cases where the shipping of the inhabitants of either state are forced, through stress of weather, pursuit of pirates or enemies, or any other urgent necessity, to seek shelter in the ports of the other. There may well be some doubts entertained whether the case of the Amistad, in its actual circumstances, falls within the purview of this article. The United States v. The Amistad, 15 Peters, 519.

ties and annexed to the treaty. It never was annexed; and, therefore, in the case of the Amiable Isabella, 6 Wheaton, 1, it is held inoperative. Ibid.

4. The treaty with Spain never could have been intended to take away the equal right of all foreigners who should assert their claims to equal justice before the courts of the United States; or to deprive such foreigners of the protection given to them by other treaties, or by the general laws of nations. Ibid.

CONSULS.

1. A foreign consul has a right to claim, or institute a proceeding in rem, where the rights of property of his fellow citizens are in question, without a special procuration from those for whose benefit he acts. The Bello Corrunes, 6 Wheat. 152; 5 Cond. Rep. 45.

2. But a consul cannot receive actual restitution of the res in controversy, without a special authority from the particular individuals who are entitled. Ibid.

3. To watch over the rights and interests of their subjects, wherever the pursuits of commerce may draw them, or the vicissitudes of human affairs may force them, are the great objects for which consuls are deputed by their sovereigns. Ibid.

2. The ninth article of the treaty provides, that all ships and merchandise, which shall be rescued out of the hands of any pirates and robbers, on the high seas, which shall be brought into some port of either state, shall be delivered | to the officers of the port in order to be taken 4. In the court for the correction of errors in care of, and "restored entire to the proprietary, the state of New York, the plaintiff in error asas soon as due and sufficient proof shall be made signed as error, in a case removed by writ of concerning the property thereof." To bring the error to that court, that he was at the time the case of the Amistad within this article, it is action was brought, and continued, consul-geessential to establish: First, That the negroes, neral in the United States of the king of Saxony, under all the circumstances, fall within the de- and as such, should have been impleaded in scription of merchandise, in the sense of the some district court of the United States, and the treaty. Secondly, That there has been a rescue supreme court of New York had no jurisdiction of them on the high seas, out of the hands of in the suit. No plea to the jurisdiction was tenpirates and robbers. Thirdly, That Ruiz and dered in the case until it was before the court Montez are the true proprietors of the negroes, of errors; and in that court, the fact that the and have established their title by competent plaintiff in error was consul-general of the king proofs. If those negroes were, at the time, law-of Saxony was not denied. The court of errors fully held as slaves under the laws of Spain, and in their decree say: having examined and fully recognised by those laws as property capable of being bought and sold, no reason is seen why this may not be deemed, within the intent of the treaty, to be included under the denomination of merchandise, and ought, as such, to be restored to the claimants; for upon that point the laws of Spain would seem to furnish the proper rule of interpretation. But, admitting that to be the construction of the treaty, it is clear in the opinion of the court, that neither of the other essential facts and requisites has been established by proof: and the onus probandi of both lies upon the claimants, to give rise to the casus fæderis. Ibid.

considered the causes assigned for error, they affirm the judgment of the supreme court. By the supreme court:-This was deciding against the privilege set up under the act of congress, which declares that the district courts of the United States shall have jurisdiction, exclusive of the courts of the several states, of all suits against consuls and vice-consuls. Davis v. Pacard, 6 Peters, 41.

5. The record of the proceedings in this case, brought up with the writ of error to the court for the correction of errors, of the state of New York, showed that the suit was commenced in the supreme court of the state of New York, 3. The seventeenth article of the treaty with and that the plaintiff in error, who was consul Spain, which provides for certain passports and general of the king of Saxony, did not plead or certificates as evidence of property on board of set up his exemption from such suit in the suthe ships of both states, is, in its terms, applica-preme court; but, on the cause being carried up ble only to cases where either of the parties is engaged in war. This article required a certain form of passport to be agreed upon by the par

to the court for the correction of errors, this matter was assigned for error in fact; notwithstanding which, the court of errors gave judg

Consuls.

ment against the plaintiff in error. By the su- [ reign, entrusted, by virtue of his office, with aupreme court:-The court of errors of New York thority to represent him in his negotiations with having decided that the character of consul did foreign states, or to vindicate his prerogative. not exempt the plaintiff in error from being sued Ibid. 446. in the state court, the judgment of the court of errors was reversed. Ibid., 7 Peters, 276.

6. As an abstract question, it is difficult to understand on what ground a state court can claim jurisdiction of civil suits against foreign consuls. By the constitution, the judicial power | of the United States extends to all cases affecting ambassadors, other public ministers and consuls; and the judiciary act of 1789, gives to the district courts of the United States, exclusively of the courts of the several states, jurisdiction of all suits against consuls and vice-consuls, except for certain offences enumerated in the act. Ibid.

12. Although a foreign consul is admitted to interpose a claim in the admiralty, for subjects unknown to his nation, yet, before restitution can be decreed, proof of the individual proprie tary interest must be exhibited. The Ântelope, 10 Wheat. 66; 6 Cond. Rep. 30.

13. A consul is authorized to claim in behalf of subjects of his country. The London Packet, 1 Mason's C. C. R. 14.

14. A consul represents the subjects of his nation, if not otherwise represented. German et al. v. Cochran, Bee's D. C. R. 209.

15. Consuls are subject to indictment for misdemeanors in the circuit courts of the United States. The United States v. Ravara, 2 Dall. 297, 299.

16. A consul is not personally answerable on a contract made in his official capacity, on account of his government. Jones v. La Tombe, 3 Dall. 384.

7. If a consul, being sued in a state court, omits to plead his privilege of exemption from the suit, and afterwards, on removing the judg ment of the inferior court to a higher court, by writ of error, claims the privilege, such an omission is not a waiver of the privilege. If this was to be viewed merely as a personal privilege, 17. The advice of an American consul in a there might be grounds for such a conclusion; foreign port, gives to the master of a vessel no but it cannot be so considered: it is the privi-justification of an illegal act. Wilson v. The lege of the country or government which the Mary, Gilpin's C. C. R. 31. consul represents. This is the light in which foreign ministers are considered by the law of nations; and our constitution and law seems to put consuls on the same footing in this respect. Ibid.

18. Where a voyage is broken up without necessity, in a foreign port, and the seamen are discharged without payment to the consul of the three months' wages required by the act of Feb ruary 28, 1803, the district court will, on a libel of the seamen, compel the owner to pay the three months' wages; two-thirds to the seamen, and the other third for the use of the United States. Pool v. Welsh, Gilpin's C. C. R. 198.

8. If this privilege or exemption was merely personal, it can hardly be supposed that it would have been thought sufficiently important to require a special provision in the constitution and laws of the United States. Higher considera- 19. It may be doubted, however, whether the tions of public policy, doubtless, led to the pro-intention of congress was to require or permit vision. It was deemed fit and proper that the the payment to be made elsewhere than to the courts of the government, with which rested the consul at the port of discharge. Ibid. regulation of foreign intercourse, should have cognizance of suits against the representatives of such foreign governments. Ibid.

20. The surety of a consul for the faithful dis charge of his duties, and for his truly accounting for all the moneys coming into his possession by virtue of the act of 14th April, 1792, is not responsible on account of moneys remitted to him for purposes not comprehended within his consular duties, as prescribed by that act. U. S. v. Bell, Gilpin's D. C. R. 43.

9. The action in the supreme court of New York against the defendant, was on a recognisance of bail, and it was contended that this was not an original proceeding, but the continuance of a suit rightfully brought against one who was answerable to the jurisdiction of the court in 21. A consul's certificate of any fact is not eviwhich it was instituted, and in which the plain-dence between third persons; unless expressly tiff in error became special bail for the defen- or impliedly made so by statute. Levy v. Burdant, and therefore the act of congress did not ley, 2 Sumner's C. C. R. 355. apply to the case: Held, that the act of congress, being general in its terms, extending to all suits against consuls, it applied to this suit. Ibid.

10. It is not competent for a neutral consul, without the special authority of his government, to interpose a claim on account of the violation of the territorial jurisdiction of his country. The Anne, 3 Wheat. 435; 4 Cond. Rep. 286.

11. A consul, though a public agent, is supposed to be clothed with authority only for commercial purposes. He has an undoubted right to interpose claims for the restitution of property belonging to the subjects of his own native country; but he is not entitled to be considered as a minister or diplomatic agent of his sove

22. Query, If a consul's certificate is evidence that a ship's register was deposited with him, according to the act of congress of 1803, ch. 62, sec. 2. Ibid.

23. An information was brought, in the name of the consul of the United States, for the Island of St. Thomas, suing for the benefit of the United States, against the defendant, to recover a penalty for not depositing with the consul the ship's register, on her arrival at the port of St. Thomas, agreeably to the act of congress of 1803, ch. 62, sec. 2. Held, that the certificate of the consul was not admissible evidence to prove the arrival or departure of the vessel. Ibid.

24. Query, If a consul, who sues for a penalty,

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