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 or- powers and jurisdiction as belong to the Disdinance of General Kearney establishing civil trict and Circuit Courts of the United States, government in New Mexico, with courts of civil conforming his proceedings, so far as possible. and criminal jurisdiction, provided that the to the course of proceedings and practice judges of those courts should be appointed by which has been customary in the courts of the the President of the United States. Same docu- United States in Louisiana; his judgments to ments, No. 19, p. 30.

be final and conclusive. And I do hereby auThe case of Leitensdorfer v. Webb, 20 How., thorize and empower the said judge to make 176, 15 L. ed. 891, cited by the majority in and establish such rules and regulations as support of their views, does not, therefore, ap- may be necessary for the exercise of his jurispear to me to touch the real question at issue. diction, and to appoint a prosecuting attorney, There, General Kearney, having his specific in- marshal and clerk of the said court, who shall structions from the President, and, as this court perform the functions of attorney, marshal and stated in that case, “Holding possession for the clerk, according to such proceedings and pracUnited States, in virtue of the power of con- | tice as before mentioned and such rules and quest and occupancy, and in obedience to the regulations as may be made and established duty of maintaining the security of the inhab- by said judge. These appointments are to conitants, ordained, under the sanction and tinue during the pleasure of the President, not 305*] *authority of the United States, a pro- extending beyond the military occupation of visional or temporary government for the ac- the City of New Orleans, or the restoration of quired territory."

the civil authority in that city and the State As to the appointment of Judge Peabody as of Louisiana. These officers shall be paid out provisional judge of New Orleans, which was of the contingent fund of the War Department, held valid in the case of The Grapeshot, 9 Wall., compensations as follows: The judge at the 129, 19 L. ed. 651, a case cited as conclusive rate of $3,500 per annum; the prosecuting atof the question under consideration here, the torney, including the fees, at the rate of $3,000 appointment came directly from the President. per annum; and the clerk, including the fees, at On the 20th of October, 1862, he issued his or- the rate of $2,500 per annum; such compensader, reciting that the insurrection had tempo- tion to be certified by the Secretary of War. rarily subverted and swept away the civil in- A copy of this order, certified by the Secretary stitutions of Louisiana, including the judiciary of War, and delivered to such judge, shall be and judicial authorities of the Union, so that deemed and held to be a sufficient commission. it had become necessary to hold the State in Let the seal of the United States be hereunto military occupation, and that it was indis- affixed. [L. s.]

ABRAHAM LINCOLN. pensable that there should be some judicial tri- By the President: bunal existing there, capable of administering WILLIAM H. SEWARD, justice; and that, therefore, he had thought

Secretary of State." proper to establish and did establish a provi. Upon the restoration of the civil authority sional court, and appoint a judge thereof, with the Provisional Court thus established ceased authority to hear, try and determine all causes, to exist. In July, 1866, Congress enacted that civil and criminal, including causes in law, all suits, causes, prosecutions and proceedings equity, revenue and admiralty, conforming his of that court, proper for the jurisdiction of the proceedings as far as possible, to the course of District or Circuit Court of the United States proceedings, and practice of the courts of the for Louisiana, should be transferred to those United States in Louisiana, but that the ap- courts respectively, and be heard and deterpointment of the judge should not extend be mined therein, and that all judgments, orders yond the period of military occupation of the and decrees of the Provisional Court, in cases City of New Orleans or the restoration of the thus transferred, should at once become the civil authority in that city and State. orders, judgments, and decrees of the district

The following is the order of President Lin- or circuit court, as the case *might be, (*306 coln, from which the Provisional Court in New and be enforced, pleaded and proved accordingOrleans derived its existence:

ly. 14 Stat. at L., 300. "EXECUTIVE MANSION, We thus have the establishment of the court WASHINGTON, October 20, 1862. by the President, and the recognition of the leThe insurrection which has for some time gality of its establishment by Congress. Surely prevailed in several of the States of this Union, there is no analogy between that case and the including Louisiana, having temporarily sub- one at bar. verted and swept away the civil institutions of No other case is cited in support of the exthat State, including the judiciary and judicial | traordinary judgment of the Provost Court we authorities of the Union, so that it has become are now considering, and I feel confident that necessary to hold the State in military occupa- there is no authority in the previous decisions tion, and it being indispensably necessary that of this court for the doctrine announced by the there should be some judicial tribunal existing majority in their opinion. there capable of administering justice, I have, I do not question that it was competent for therefore, thought it proper to appoint, and I the President to authorize the establishment by do hereby constitute a Provisional Court, which military officers, or civilians appointed military shall be a court of record for the State of governors, of temporary courts, to continue Louisiana, and I do hereby appoint CHARLES A. during the war, with civil as well as criminal PEABODY, of New York, to be a provisional jurisdiction to the extent essential for the se judge, to hold said court, with authority to curity of persons and property, in territory hear, try and determine all causes, civil and | dominated by our forces, after the overthrow

of the insurgent power of the Confederates. I tion of law, however difficult; but lie was not
Such was the case with the Military Governor judge there; he was only a military chieftain,
of Louisiana, who was specially authorized in and his order had nothing in it which
his commission from the President to establish | *took from its character as an arbi- [*308
all necessary tribunals within the State, and trary edict of despotic power.
whose appointment of judges of the third and The position that the judgment of the Pro-
fourth District Courts of New Orleans was vost Court was validated by article 149 of the
recognized as valid by this court in the cases of Constitution of Louisiana of 1868, does not
Handlin v. Wickliffe, reported in the 12th of seem to me to merit any consideration. The
Wallace, 173, 20 L. ed. 365, and Pennywit v. article requires, for the validation of the judg.
Eaton, reported in the 15th of Wallace, 380, ment, that it must have been rendered in ac-
382, 21 L. ed. 72, 114. All that I insist upon cordance with existing laws in the State, and
307*] is, that where *such courts were es- the assertion that any laws of the State at the
tablished the authority from the President time authorized the establishment of a Provost
must be shown, and that it cannot be presumed Court, or that such court should rehear a case
from the mere existence of the courts, and the upon the mandate of a commanding general of
exercise of jurisdiction by them. Sometimes, the United States, is a proposition which needs
indeed, the general power conferred upon a only to be mentioned to be answered. The fol-
subordinate officer carried with it authority lowing is the 149th article of the Constitution
to establish such tribunals; s, for example, of Louisiana of 1868:
the power conferred upon a military command. “Art. 149: All rights, actions, prosecutions,
er to establish a civil government, carried au- claims, contracts and all laws in force at the
thority to establish tribunals with civil as well time of the adoption of this Constitution, and
as criminal jurisdiction in the territory gov- not inconsistent therewith, shall continue as if
erned, for the administration of justice. But it had not been adopted; all judgments and ju-
the mere possession of military power in a par- dicial sales, marriages and executed contracts
ticular district within the United States by an made in good faith and in accordance with ex-
officer of the Army the United States carried isting laws in this State rendered, made or en-
with it, by itself, no authority to establish tri-tered into between the 26th day of January,
bunals to dispose of civil controversies between 1861, and the date when this constitution shall
the inhabitants of such district, and where any be adopted, are hereby declared to be valid, ex-
such authority is asserted to have existed it cept the following laws,” etc.
must be shown to have been granted by the Besides, it is a novel doctrine in this coun-
President; it cannot be presumed, certainly try, that a judgment affecting private rights of
not where the ordinary jurisdiction of the property, not merely defective for want of com-
court excluded any power over civil contro- pliance with some matter of form, but abso-
versies, as was the case with provost courts. lutely void for want of jurisdiction in the

But supposing that the Provost Court in the court to render it, can be validated by subse-
present case was rightly invested with civil quent enactment, legislative or constitutional.
jurisdiction, there was nothing to justify its I know of no judicial determination recogniz-
judgment in the case mentioned. It had al- ing any such doctrine or even looking that way.
ready given its judgment that the suit before Mr. Justice Bradley desires me to say that
it, of the Union Bank should be dismissed. he was not present at the argument of this
There its powers ended. What subsequently case, and took no part in its decision.
it did was done under the dictation of its mili-
tary superior; and so, as if in derision of the THE NEW JERSEY RAILROAD & TRANS-
proceeding, the provost judge afterwards said

PORTATION COMPANY, Piff. in Err., to the counsel of the defendant, that no law need be read to him; that the commanding general had ordered a new trial, and that “the JEROME B. POLLARD and Sarah H. Pollard, case would be decided under orders.”

His Wife. A judgment thus rendered wants all the ele

(See S. C., 22 Wall., 341-350.) ments of a judicial determination, and is enti- Nonsuit, when denied-requests to charge-partled to no respect in any tribunal where justice

ties as witnesses—depositions of—injury, is administered. The commanding general, we when evidence of negligence. all know, was a man of eminent ability, and 1. Where the evidence submitted by the plaintiff. competent to sit in judgment upon any ques

was sufficient to justify the court in leaving the

case to the jury, the court did not err in refusing a 1.–The following is a copy of the commission is. nonsuit. sued by the President to General Shepley as Mili- 2. There is no error in the refusal of a court to tary Governor of Louisiana :

charge the jury as requested, when such request *COMMISSION AS MILITARY GOVERNOR.

involved the determination of a question of fact by WAR DEPARTMENT, WASHINGTON City, June the court, upon which there was a conflict of evi

dence. Hox, GEORGE F. SHEPLEY, &c., &c. :

3. In the courts of the United States, parties SIR-You are hereby appointed Military Gov- to a suit are, by Acts of Congress, admissible to ernor of the State of Louisiana, with authority to testify for themselves and compellable to testify exercise and perform, within the limits of that for the others, and their depositions, taken de bene State, all and singular the powers, duties and func- esse, are admissible. sions pertaining to the office of military governor 4. An injury upon a railroad car, while the pas. (including the power to establish all necessary senger injured was in the exercise of ordinary care, offices and tribunals and suspend the writ of habeas is prima facie evidence of the company's liability. corpus), during the pleasure of the President, or antil the loyal inhabitants of that State shall or

[No. 218.) ganize a civil government in conformity with the Constitution of the United States.

Argued Apr. 14, 1875. Decided May 3, 1875. By the President. (SEAL OF U. S.)

V.

}

3, 1862.

1

N ERROR to the Circuit Court of the United “1. That the facts of this case are not of

that character which would warrant, on the This action was brought in the court below part of the jury, an inference that the defendby defendants in error, to recover damages for ant was guilty of a want of care and skill; personal injuries sustained by Sarah H. Pol- and the jury must look to affirmative proof of lard while a passenger on defendant's railroad. want of care and skill in coming to any ver

The evidence for the plaintiffs showed that dict in this case. the defendant's train, on which Mrs. Pollard 2. That the facts of this case are not such was a passenger, was approaching the depot at as to warrant the conclusion that there was a Jersey City; Mrs. Pollard was standing, her want of care on the part of the defendant. limbs braced against the seat from which she 3. If, under all the facts of this case, the had just arisen engaged in fixing her little jury are unable to find how or in what manner girl's hair, preparatory to leaving the cars; the injury was caused, that there would not the train was moving slowly and about to enter be sufficient proof of negligence or want of the depot, and passengers were getting out skill on the part of the defendant to enable and off; there was then a jerk or lurch or con the plaintiffs to recover.” cussion of the cars which threw Mrs. Pollard To which the court said: backward, so that the lower part of her spine “I decline to charge as requested in the first struck against the arm of the seat, causing and second prayers, for the reason that they her serious and permanent injuries; that with ask the court to decide disputed questions of Miller's patent platform and buffer, there is fact, which it is the peculiar province of the no jerking or jolting of the cars.

jury to settle. The defendant's evidence was: that there If the fourth prayer means that the jury has was no unusual jolt; and that Miller's coup- no right, from the facts and circunstances ling did not make a train steadier.

proved, to infer negligence or want of skill and The deposition of Sarah A. Pollard, taken care on the part of the defendant, unless they de bene esse, was admitted in evidence, against are able to find how and in what manner the the defendant's objection. The plaintiffre injury was caused, it is not a proper request in quested the court to charge the jury, among the present case, and I decline to so charge the other things, as follows:

jury.” “That, while the plaintiffs are bound to sat- To these rulings of the court the defendant isfy the jury that the injury was caused by the excepted and, upon verdict and judgment for negligence of the defendant, if, from the evi- the plaintiff, sued out this writ of error: dence, the jury are satisfied that the injury Mr. J. W. Scudder, for plaintiff in error: was occasioned while she was a passenger on The rule of law is that the negligence of the defendant's road, and that she was in the exer- defendant cannot be presumed by reason of the cise of ordinary care, namely: that degree of proper care on the part of the plaintiff. There care which may reasonably be expected from a must be positive proof, on the part of the person in her situation, this would be prima plaintiff, of the negligence of the defendant. facie or presumptive evidence of defendant's The burden of proof as to want of care on liability, and the plaintiffs would not be re- the part of the defendant is on the plaintiff. quired to show by what particular acts of mis- Parrot v. Wells, 15 Wall., 524, 21 L. ed. conduct 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 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 The first and second prayers on the part of practical use to secure the safety of its pas the defendant were sound propositions as applisengers; public policy and safety requiring cable to the case, and the court dec!ined to that it be held to the greatest possible care charge the same. and diligence.”

These propositions were not designed, as the To which the court said:

court erroneously supposed, to withdraw the “The fourth prayer is also ruled to be the case from the determination of the jury; but it law, as decided by the Supreme Court of the was a request to state to the jury that they United States in Stokes v. Saltonstall, 13 Pet., must not be controlled by inference, but rely 181; but you will be careful not to consider any only on facts affirmatively proven. presumption against the defendant until you

The testimony of Mrs. Pollard, she being the are satisfied by affirmative proof, on the part wife of Jerome B. Pollard, was unlawfully adof the plaintiff, that she was in the exercise mitted. of reasonable care and caution when the injury Her testimony was taken de bene esse and obwas sustained.

jected to. The first part of the fifth prayer is the legal Lucas v. Brooks, 18 Wall., 436, 21 L. ed. sequence of the fourth, and while the latter 779. part is the law, it has no application to this

The taking of a deposition de bene esse decase as developed by the testimony, unless the pends on the statute law solely. jury think that they are warranted by the evi

If a party should be allowed to testify, such dence in finding that the Company ought to party cannot be examined de bene esse without have adopted the Miller huffer."

express statutory authority. The defendant's counsel asked the court to “The mode of proof in the trial of actions charge, among other things:

at common law shall be oral testimony and ex

case

error:

amination of witnesses in open court, except | 13 Pet., 181. We see no necessity for reconas hereinafter provided.” Rev. Stat. of U. Š., sidering that case. 162, sec. 861.

There was no error in the refusal of the The Acts of Congress in relation to parties pourt to charge the jury as requested by the being witnesses, lead to the conclusion that a defendants. Each request involved the deterparty cannot be examined de bene esse except mination of a question of fact by the court by express authority.

where there was, to say the least, a conflict of Such express authority has been given with evidence. reference to witnesses in the courts of the Dis- We have decided at the present term, in trict of Columbia, but not in other courts. Texas v. Chiles, not yet reported, ante, 650, that

Act, July 2, 1864, sec. 3, 13 Stat. at L., 351. in the courts of the United States, parties to Ur. Albert A. Abbott, for defendants in à suit are, by Acts of Congress, put upon a

footing of equality with other witnesses, and The laws which govern the courts of the are "admissible to testify for themselves and United States in the taking and reception in compellable to testify for the others.” evidence of depositions de bene esse are the This disposes of all the errors assigned in Statutes of the United States, viz.:

this case. Act, Sep. 24, 1789, § 30, 1 Stat. at L., 88;

The judgment of the Circuit Court is afAct, March 1, 1817, 3 Stat. at L., 350; Act, firmed. 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

UNITED STATES, Appt., How., 608.

Under the above statutes, the deposition of DAVID G. FARRAGUT, Admiral, etc., et al. any person, whether party or otherwise, may

(See S. C., 22 Wall., 406-424.) be taken and read in evidence in the manner Admiralty case, submission of to arbitrationand for the causes therein stated.

effect of-construction of submission—when The charge of the court correctly stated the award conclusive-when set aside_capture law as decided by this court, and it would have -distribution of prize money-enemy propbeen proper for the court to charge exactly as erty-error. requested and without qualification.

1. There is nothing in admiralty jurisdiction Stokes v. Saltonstall, supra; Brown v. N. Y. which prevents parties in that court, whether sit. Cent. R. R. Co., 34 N. Y., 404; Hegeman v. ting in prize or as an instance court, from subWestern R. R. C0,, 13 N. Y., 1; Story, Bail., mitting their case by rule of the court to arbitrasec. 601; The New World v. King, 16 How., 2. An award in such a case is to be construed, 469; Railroad Co. v. Derby, 14 How., 468.

and its effect determined in this court, by the The defendant's prayers request the court to same general principles which would govern it in a

court of common law or of equity. find upon pure matters of fact. Such an inter- 3. An expression in the agreement of submission, ference upon the province of the jury has never

that all questions of law in the case are to be

concluded by the award is only a submission of been tolerated by this court.

all matters involved in the suit. A direction to find for one party or the other 4, Where the award finds facts it is conclusive ; can only be given where there is no conflict of where it finds propositions of law. unmixed with evidence. Klein v. Russell (ante, 116), per facts, uns mistake can be corrected in this court,

5. Where a proposition is one of mixed law and Swayne, J.; Railroad Co. v. Stout, 17 Wall., fact, in which the error of law, if there be one, 657, 21 L. ed. 745.

cannot be distinctly shown, the parties must abide

by the award. The law arising upon the evidence was given 6. The award was also liable to be set aside in by the court to the jury with such fullness as to the court below, for exceeding the power conferred guide them correctly in their findings, and there by the submission, for mistake of law, for fraud would have been no error even had the court and for all the reasons for which awards are set

asile in courts. refused to give a correct instruction.

7. These principles applied to a libel in admirRailway Co. v. Whitton, 13 Wall., 270, 20 alty against captured vessels as prize of war to L. ed. 571.

procure their value to be distributed among the

NOTE.—When awards will be set aside by a court Mr. Chief Justice Waite delivered the opin- Marsh, 15 L. ed. U. s. 96.

of equity and when not-see note to Burchell V. ion of the court:

Domicil in chemy's country, or neutral country, It is unnecessary to decide, in this case, in war; effect of on goods shipped-see note to whether the Act of June 1, 1872, R. S., sec. Mary & Susan, 4 L.

The Frances, 3 L. ed. U. S. 581; and note to The

U. S. 32. 914, by which the practice, pleadings, forms and Joint capture; what vessels entitled to share in modes of proceedings, etc., in the Circuit and distribution of prize mone!..

If a decree of condemnation is rendered, it is District Courts of the United States are made then the duty of the court to determine what ves

The to conform, as near as may be, to the practice, sels are entitled to participate in the prize. pleadings, forms and modes of proceedings in eehawken, v. The Atlanta, 18 L. ed. U. S. 253 ; 2

Sprague, 253. the courts of the States, gives to the circuit Under the statutes of the U. S., all vessels of the courts the power to order a nonsuit against the navy within signal distance of the vessel or ves

sels making the capture, under such circumstances will of the plaintiff in States where that power and in such condition as to be able to render ef. exists in the state courts, because, upon an ex

fective aid, if required, share in the prize ; and in amination of the record, we are all of the opin- tled to share except the vessel or vessels making

case of vessels not of the navy, none shall be entiion that the evidence submitted by the plaintiff the capture : in them shall be included vessels preswas sufficient to justify the court in leaving ent at and rendering actual assistance in the car

The successive Acts upon the subject are : the case to the jury.

1779, ch. 24. 1 Stat. at L.. 715; 1800, ch. 33. 2 It is conceded that the part of the charge to Stat. at L., 52; 1862. ch. 204, 12 Stat. at L. 606 : the jury excepted to is fully sustained by the 1864, ch. 174, 13 Stat. at L., 306; U. S. R. S. s decision of this court in Stokes v. Saltonstall, Statute of 1864 does not alter rule of distribu

.

APPEAL from the Supreme Court of the Dis-made during the rebellion, viz.: April, 182