1. A southern state passed in 1865 a statute of limitations
enacting that in computing the time in which any civil suit,
proceeding, or appeal should be barred by any statute of
limitation, the term of time from the 17th April, 1861, to the 1st
March, 1865, should not be computed. It then passed another
enacting that the time from 1 March, 1865, to 27 February, 1866,
should not be. The courts of that state were closed to loyal
suitors by the rebellion between the 17th April, 1861, and the 27th
February, 1866. On suit brought in May, 1866, for a cause of action
which arose in 1862, and which but for this deduction of time would
have been barred in one year from 1862, by older statutes of
limitation, the defendant asked the court to charge that if the
jury believed that the right to bring the suit accrued more than
one year before the
Page 81 U. S. 217
1st of March, 1865, their verdict should be for the defendant.
Held, in view of previous decisions of this Court and of
congressional legislation (referred to
infra, p.
81 U. S. 218),
that it could not be inferred that the Court meant to declare the
state statutes consistent with the federal Constitution, when it
simply told the jury that in computing the statute of limitations
they ought to exclude the time between the 17th of April, 1861, and
the 27th February, 1866, and that if the cause of action arose in
1862, it was not barred.
2. Although a certificate of the presiding justice of the
highest court of a state that there was drawn in question the
validity of an act of the state on the ground that it was repugnant
to the Constitution of the United States and that the decision was
in favor of its validity is entitled to much weight, yet where
evidently that court had nothing before it but an exception taken
and signed in the subordinate court which was clearly insufficient
to raise such a question, or to show that it was decided in a way
to give this Court jurisdiction, such certificate is not conclusive
to show that a federal question was raised in the case.
When a certificate of the presiding justice of the highest court
of a state mentions that a certain federal question was raised and
decided in his court, and does not state that any other was, this
silence justifies the conclusion that none other was, especially
when a decision on the matter where a second federal question is
alleged to have been passed on may have been well decided on many
other grounds not federal.
3. A federal question cannot be assumed to have been raised and
passed on in a state court so as to give jurisdiction to this Court
under the 25th section when nothing appears in the record to show
on what grounds the decision of the matter in which the federal
question is alleged to be involved was made.
In July, 1862, the State of Virginia (with the exception of
certain counties, not including that of Monroe), being in rebellion
against the United States, and being so proclaimed by the President
on the 1st of that month, one Caperton, provost marshal under the
Confederate forces of Monroe County (in which martial law had been
declared by Jefferson Davis, March 29, 1862), caused a certain
Bowyer, who had remained faithful to his allegiance, to be arrested
and thrown into prison, and there kept for a considerable time upon
a charge of giving information to the forces of the United
States.
At this time, the right to bring civil suits for false
imprisonment
Page 81 U. S. 218
was limited by the Virginia Code to apparently one year.
[
Footnote 1]
In 1863, certain western counties of Virginia, including Monroe
County, aforesaid, having formed themselves into a new state were
duly received as such into the Union, and in 1865 and 1866 the new
state passed two statutes, thus:
"
An Act in relation to the Statutes of Limitation,
passed March 1, 1865"
"
Be it enacted by the Legislature of West Virginia, in
computing the time in which any civil suit, proceeding or appeal
shall be barred by any statute of limitations, the period from the
17th day of April, 1861, to the date of the passage of this act
shall be excluded from such computation."
"
An Act in relation to the Statutes of Limitation,
passed February 27, 1866"
"
Be it enacted by the Legislature of West Virginia, in
computing the time within which any civil suit or proceeding in
trespass or case shall be debarred by any statute of limitation in
the Counties of Monroe [&c., other counties named], the period
from the first day of March, 1865, to the date of the passage of
this act shall be excluded from such computation."
Prior to the dates of either of these acts -- that is to say on
the 11th of June, 1864 -- the Congress of the United States passed
"An act in relation to the limitation of actions in certain cases,"
thus:
"That whenever, during the existence of the present rebellion,
any action, civil or criminal, shall accrue against any person who
by reason of resistance to the execution of the laws of the United
States or the interruption of the ordinary course of judicial
proceedings cannot be served with process for the commencement of
such action or arrest of such person;"
"Or whenever, after such action, civil or criminal, shall have
accrued, such person cannot, by reason of such resistance of the
laws or such interruption of judicial proceedings be served with
process for the commencement of the action;"
"The time during which such person shall be beyond the
Page 81 U. S. 219
reach of judicial process, shall not be deemed or taken as any
part of the time limited by law for the commencement of such
action."
And in December Term, 1867, this Court, in
Hanger v.
Abbott, [
Footnote 2]
decided that the time during which the courts in the then lately
rebellious states were closed to citizens of the loyal states was,
in suits brought by them afterwards, to be excluded from the
computation of the time fixed by statutes of limitation within
which such suits may be brought -- a principle subsequently
affirmed, and perhaps extended, A.D. 1870, in
The
Protector [
Footnote 3] and
in
Levy v. Stewart. [
Footnote 4]
The rebellion being declared, by the President's proclamation of
April 2, 1866, suppressed in Virginia, and the courts of West
Virginia open to all persons, Bowyer, on the 11th May, 1866, sued
Caperton in the state Circuit Court of Monroe County in trespass
for the false imprisonment which as Confederate provost marshal he
had made in 1862, during the rebellion.
Caperton having demurred to the declaration and pleaded the
general issue, put in six special pleas:
1st. That the action was barred because not brought within one
year next after the cause of it accrued.
2d. That it was not so brought within two years.
3d. That more than two years had elapsed after the right of
action accrued, and before March 1, 1865, when the first of the
above-quoted statutes of West Virginia was passed.
4th. That at the time of the supposed grievance, both the
plaintiff and defendant were citizens and residents of Virginia,
and that the whole time of limitation prescribed for this action by
the law of that state had run while the defendant resided in it,
and before the said 1st of March, 1865, when the act of that date
was passed.
Then came a plea, thus:
"5th. That before the time of the supposed grievances, the
defendant had, on oath made in conformity with the law
Page 81 U. S. 220
long existing in the Commonwealth of Virginia, declared himself
a citizen of the said commonwealth and solemnly swore that he would
be faithful and true to the said commonwealth, and would support
the constitution thereof so long as he continued to be a citizen of
the same, and until and at and after the time of the said supposed
grievances he continued to be a citizen of the same, and before and
at the time of the said supposed grievances the said commonwealth
was engaged in actual war, and an army consisting of a large
number, to-wit, __ thousand soldiers, was raised within the then
territory of the said commonwealth, for the safeguard and defense
of the same against those who then, by those then acting at the
City of Richmond, in said commonwealth, as the authorities of said
commonwealth, were deemed the enemies thereof; and during the time
that the said army was in actual service within said territory for
such safeguard and defense, and while the then actual authorities
of said commonwealth and those in the same confederacy therewith
were not only belligerents, but recognized as such by the
government of the United States, General H. Heth, the general and
commander of troops forming part of said army in actual service,
did, under the authority of the executive power then in fact
exercised over said commonwealth and over those in the same
confederacy therewith, appoint this defendant provost marshal of
the County of Monroe; and while this defendant was such provost
marshal under said appointment, the plaintiff was, without any
special order from or instigation of this defendant, taken and
imprisoned upon a charge of harboring deserters, and was, by this
defendant, discharged from imprisonment upon his giving surety for
his good behavior; and all the supposed grievances whereof the
plaintiff has complained, so far as this defendant did or procured,
caused, directed, ordered, instigated others to do the same, were
acts done while this defendant was such provost marshal under said
appointment, and done in what was then in fact the territory of
said commonwealth, and done in pursuance of the executive
authority, which then in fact governed in said commonwealth,
Page 81 U. S. 221
and in accordance with such laws, rules, and regulations as then
in fact prevailed therein."
This was followed by another plea, the
6th. That on the 7th September, 1865, the President had granted
him, the defendant, a full pardon and amnesty for all offenses by
him committed, arising from participation, direct or implied, in
the said rebellion, and the defendant took the oath prescribed in
the proclamation of the President, dated May 29, 1865, and the
defendant duly notified the Secretary of state in writing that he
had received and accepted the said pardon. And further, that all
the grievances complained of in the declaration were acts arising
from participation, direct and implied, in the said rebellion.
The court sustained the declaration, and issue being tendered to
the country on the general issue and the first three of the special
pleas, and the court having, without assigning any reasons, decided
the three remaining ones to be bad, on general demurrer, the case
came on to be tried.
The plaintiff having shown the imprisonment, the defendant
offered in evidence, "both in mitigation of damages and as
justification of the acts complained of," the already-mentioned
pardon of the President. This pardon had five conditions annexed to
it: (1) that Caperton should take a certain oath; (2) that he
should not acquire slaves &c.; (3) that he should pay certain
costs; (4) that he should not claim certain property, or its
proceeds; (5) that he should notify the Secretary of state in
writing that he accepted the pardon. It was shown that Caperton had
given the required notice and had taken the required oath. What had
been done in the other matters did not appear. The court excluded
the pardon.
The defendant then requested the court to charge as follows:
"1st. If the jury believe that this action was not brought
within one year next before the right to bring the same accrued,
the verdict should be for the defendant."
"2d. If the jury believe that the right to bring this action
accrued more than one year before the 1st day of March, 1865,
Page 81 U. S. 222
and that this action was not brought until after the 1st day of
March, 1865, the verdict should be for the defendant."
The court refused so to charge, and charged thus:
"In computing the time of the statute of limitations in this
cause, the jury ought to exclude from the computation all that term
of time between the 17th of April, 1861, and 27th of February,
1866, and if the cause of action arose in 1862, as alleged in the
declaration, then it is not barred by either of the statutes of
limitations upon which issues have been joined."
Verdict and judgment having, on the 25th July, 1867, gone for
the plaintiff, the judgment was taken from the Circuit Court of
Monroe County, where the suit was brought, to the Supreme Court of
Appeals of the State of West Virginia. All that now was shown by
the record as to the action of that court or the reasons of it
appeared in a certificate from its clerk, thus:
"The court having maturely considered the transcript of the
record of the judgment aforesaid, together with the arguments of
counsel thereupon, is of opinion, for reasons stated in writing and
filed with the record, that there is no error in said judgment;
therefore it is considered by the court that the judgment aforesaid
be affirmed, and that the defendant in error recover from the
plaintiff in error damages according to law, together with his
costs about his defense in this behalf expended."
"And the court doth certify that in the aforesaid judgment there
was drawn in question the validity of the statute of the State of
West Virginia, passed March 1st, 1865, entitled 'An act in relation
to the statutes of limitation,' on the ground that it was repugnant
to the Constitution of the United States, and the decision of this,
the highest court of law and equity in this state in which a
decision in said suit could be had, was in favor of the validity of
said statute."
From the affirmance by the Supreme Court of Appeals, the case
was brought here on the assumption that it came within the 25th
section of the Judiciary Act, quoted
supra, pp.
81 U. S. 5-6. A
motion to dismiss for want of jurisdiction having been made, the
question of jurisdiction was argued.
Page 81 U. S. 231
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Special jurisdiction only is given to this Court by virtue of a
writ of error to a state court, and unless the record shows that
the case falls within the conditions annexed to the right of a
party to invoke the exercise of the jurisdiction, the writ of error
must be dismissed. Primarily those conditions are two:
(1) That it shall appear that someone of the questions specified
in the twenty-fifth section of the Judiciary Act, or the second
section of the amendatory act, did arise in the case.
(2) That the question which did so arise in the case was decided
by the court in the way therein required to give this Court
jurisdiction to reexamine the question, and the rule is settled
that unless both those things appear, the jurisdiction does not
attach. [
Footnote 5]
On the sixth day of August, 1866, the plaintiff brought an
action of trespass for false imprisonment against the defendant in
the state court, in which he alleged that the defendant, on the
twenty-ninth of June, 1862, with force and arms, seized the
plaintiff and incarcerated him in a dungeon, and imprisoned him
there for twenty-four days, separated from his home and family, and
that he subjected him to great danger and many hardships, and
seriously impaired his health and put him to great pain and
distress, both of body and mind.
Service having been made the defendant appeared and demurred to
the declaration, and filed seven other pleas, as follows: (1) that
he was not guilty in manner and form as alleged; (2) that the
action was not brought within one year next after the right to
bring the same accrued; (3)
Page 81 U. S. 232
that the action was not brought within two years next after the
right to bring the same accrued; (4) that more than two years had
elapsed after the right to bring the action accrued, and before the
present limitation act of the state was passed; (5) that the
plaintiff and defendant were citizens of the same state, and that
the whole time prescribed as a limitation had elapsed before the
present act modifying the preexisting law was passed; (6) that the
supposed grievances were acts done by the defendant as provost
marshal under the military orders of the state, in time of actual
war, as more fully set forth in the plea; (7) that the President,
on the seventh of September, 1865, granted the defendant a full
pardon and amnesty for all offenses by him committed, arising from
participation, direct or indirect, in the rebellion.
Subsequently the plaintiff filed a joinder to the demurrer,
joined the issue tendered under the plea of not guilty, and filed a
replication to the six special pleas as follows: (1) that the
action is not barred as alleged, and tendered an issue to the
country; (2) that the action is not barred as alleged in the second
special plea, and also tendered an issue to the country; (3) that
the action is not barred as alleged in the third special plea, and
tendered an issue to the country; (4) plaintiff filed a demurrer to
the fourth, fifth, and sixth special pleas, and the defendant
demurred to the replication of the plaintiff to the defendant's
first special plea.
All the issues of law were determined by the court in favor of
the plaintiff, that is, the court overruled the demurrer to the
declaration, sustained the demurrers of the plaintiff to the
fourth, fifth, and sixth special pleas of the defendant, and also
overruled the demurrer or the defendant to the plaintiff's
replication to the defendant's first special plea, which left
nothing for trial but the issues of fact, which were submitted to a
jury, and the jury found all the issues of fact in favor of the
plaintiff, and that the defendant was guilty as alleged in the
declaration, and assessed damages for the plaintiff in the sum of
eight hundred and thirty-three dollars. Judgment was rendered for
the plaintiff, and
Page 81 U. S. 233
the defendant excepted and removed the case into the Court of
Appeals of the state, where the judgment was in all things
affirmed. Whereupon the defendant sued out the present writ of
error and removed the cause into this Court for reexamination under
the twenty-fifth section of the Judiciary Act.
Jurisdiction, it is claimed by the defendant, may be sustained
in this case upon three grounds, which will be separately
considered: (1) because the judge told the jury that, in computing
the time of the statute of limitations, they ought to exclude from
the computation all that period of time between the seventeenth of
April, 1861, and the twenty-seventh of February, 1866, as that
ruling, as he contends, was equivalent to a ruling that the recent
acts passed by the state upon that subject are valid laws, which he
denies; (2) because the court sustained the demurrer of the
plaintiff to the fifth special plea of the defendant, setting up
belligerent rights as a defense to the action; (3) because the
court excluded the pardon granted to him by the President when
offered in evidence under the plea of not guilty.
1. Two acts of limitation have recently been passed by the state
legislature. By the first, which was passed on the first day of
March, 1865, it was enacted that, in computing the time within
which any civil suit, proceeding, or appeal, shall be barred by any
statute of limitations, the period from the seventeenth day of
April, 1861, to the date of the passage of the act, shall be
excluded from such computation. [
Footnote 6] By a subsequent act passed on the
twenty-seventh of February, 1866, it is provided that, in computing
the time within which any civil suit, or proceeding in trespass or
case, shall be barred by any statute of limitations in certain
counties, including the county in which this suit was brought, the
period from the first day of March, 1865, to the date of the
passage of the act shall be excluded from such computation.
[
Footnote 7]
Two prayers for instruction upon that subject were also
presented by the defendant which were refused by the court,
Page 81 U. S. 234
but it is not necessary to reproduce them, as the question
involved is as fully raised by the instruction given to the jury as
by the refusal to give those instructions.
Exception was taken by the defendant to the refusal to instruct
and to the instruction given, but the grounds of the exception are
not stated, nor are the reasons for the ruling given by the court.
Such an exception is not sufficient to show that anyone of the
questions mentioned in the twenty-fifth section of the Judiciary
Act was either raised or decided in the manner therein required to
give this Court jurisdiction under a writ of error to a state
court. Unless both those things appear; that is, unless it appears
that the question was raised and that it was decided in the way
required, the jurisdiction does not attach, and it is clear that
the exception is not sufficient to show that either occurred at the
trial. Nothing further was done upon the subject in the court of
original jurisdiction, but the cause was removed into the Court of
Appeals of the state, where the judgment was affirmed. Appended to
the judgment in that court is a certificate signed by the clerk and
certified by the presiding justice of the court, that there was
drawn in question the validity of the act of the state passed
March, 1865, in relation to the statute of limitations, on the
ground that it was repugnant to the Constitution of the United
States, and that the decision of the highest court of law and
equity in the state was in favor of its validity. Evidently that
court had before it nothing but the exception taken and signed in
the subordinate court, which is clearly insufficient to raise such
a question or to show that it was decided in a way to give this
Court jurisdiction in such a case. Undoubtedly such a certificate
is entitled to much weight, as showing that the question was
decided by the court which gives it, and in the manner required to
give jurisdiction, but it is not conclusive to show that the
question was raised in the case, as the latter question may depend
upon the construction of the pleadings, or, as in this case, upon
the proper construction of the language of the bill of
exceptions.
Necessary implication, it is said, will suffice, which may
Page 81 U. S. 235
be granted, but it can hardly be said in this case that it must
necessarily be implied that the judge instructed the jury that the
state statute was consistent with the federal Constitution. What he
did tell the jury was that a certain period of time should be
excluded from the computation in determining the issues of fact
presented by the pleadings, whether the action was barred by the
one or two years' limitations. Three years before that, this Court
had decided that the period during which the courts of the state
where the defendant resided were closed by reason of the
insurrection and rebellion should not be deemed and taken as a part
of such a limitation. [
Footnote
8]
Congress allowed one year from the date of the act to the time
allowed for suing out writs of error and taking appeals in
districts where the sessions of the courts had been suspended or
interrupted by insurrection or rebellion, and this Court decided
that the act of Congress was a remedial and not a restraining one,
and applied the rule laid down in the prior case that in computing
the five years allowed for the purpose, the period for which the
courts were closed by insurrection or rebellion must be excluded
from the computation. [
Footnote
9] Provision was also made by Congress that the time during
which any person was beyond the reach of legal process by reason of
resistance to the execution of the laws or the interruption of the
ordinary course of judicial proceedings shall not be deemed or
taken as any part of the time limited by law for the commencement
of any action, civil or criminal. Objection was taken to the
validity of that provision, but this Court unanimously held it to
be constitutional. [
Footnote
10]
Prior to these decisions, founded upon acts of Congress, this
Court had decided, as before remarked, that the period during which
the courts were closed by the insurrection must be excluded from
every such computation, and this
Page 81 U. S. 236
Court has twice since that decided in the same way, every
Justice of the Court concurring in the opinion. [
Footnote 11] Enemy creditors cannot
prosecute their claims subsequent to the commencement of
hostilities, as the rule is universal and peremptory that they are
totally incapable of sustaining any action in the tribunals of the
other belligerent. Absolute suspension of the right to sue and
prohibition to exercise it exist during war by the law of nations,
but the restoration of peace removes the disability and opens the
doors of the courts.
Tested by these considerations, this Court is of the opinion
that the judge of the state court may well have followed the
decisions of this Court in the instruction he gave to the jury
without having intended to express any opinion as to the
constitutionality of the state law, and that it does not appear
with sufficient certainty that the supposed federal question did
arise in the case, or that it was decided in the manner required to
give this Court jurisdiction under a writ of error to a state
court.
2. Next ground assumed is that the court erred in sustaining the
demurrer of the plaintiff to the fifth special plea of the
defendant, setting up belligerent rights as a defense to the
action.
Unquestionably it does appear that the plaintiff demurred to
that plea and that the court sustained the demurrer to the plea,
but it nowhere appears that the court held the plea bad for the
reason supposed by the defendant. On the contrary, the plea is very
defectively drawn, and it may be that it was held bad for many
other sufficient reasons, and the fact that the certificate filed
by the chief justice makes no mention of this point justifies the
conclusion that it was not decided by the court of last resort.
Questions presented in a subordinate court are frequently waived in
the appellate court, and it is plain law that questions not
presented in the court of last resort do not give jurisdiction in a
case like the one before the Court. Such a question may be raised
in a
Page 81 U. S. 237
bill of exceptions, but sufficient of the proceedings must be
stated to show not only that it was raised, but that it was decided
in the manner required to give the jurisdiction.
3. All that remains to be considered is the question respecting
the pardon. By the bill of exceptions it appears that the defendant
offered the pardon, both in mitigation of damages and as a
justification of the alleged wrongful acts, and it appears that the
plaintiff objected to the introduction of the instrument and that
the court sustained the objection, and that the pardon was
excluded. Enough appears to show for what purpose the pardon was
offered, but nothing appears to show upon what grounds it was
rejected at the trial or that the question was ever examined or
decided by the Court of Appeals. Five conditions are embodied in
the pardon, but the record shows that the defendant complied with
the first and fifth, and it does not show that he has ever violated
anyone of the others. No mention is made of that ruling in the
certificate of the chief justice, nor is there anything in the
record to show that the exception was presented to the Court of
Appeals, unless that may be inferred from the fact that the Court
of Appeals found that there was no error in the record and affirmed
the judgment. Questions not decided in the state court because not
raised or presented by the complaining party will not be reexamined
in this Court on a writ of error sued out under the twenty-fifth
section of the Judiciary Act. [
Footnote 12] Such is the settled practice, and the act of
Congress provides that it must appear that the question presented
for decision in this Court was raised in the state court, and that
the decision of the state court was given as required by that
section. [
Footnote 13]
Repeated decisions have established that rule, and inasmuch as the
point has been several times ruled at the present session, we
forbear to extend the discussion.
Dismissed for want of jurisdiction.
[
Footnote 1]
Code of Virginia, 1860, p. 638, ยง 11.
[
Footnote 2]
73 U. S. 6 Wall.
532.
[
Footnote 3]
76 U. S. 9 Wall.
687.
[
Footnote 4]
78 U. S. 11 Wall.
244.
[
Footnote 5]
1 Stat. at Large 85; 14
id. 386.
[
Footnote 6]
Sess.Acts of West Virginia, 1865, p. 72.
[
Footnote 7]
Ib., 1866, p. 92.
[
Footnote 8]
Hanger v.
Abbott, 6 Wall. 534.
[
Footnote 9]
14 Stat. at Large 545;
The Protector,
9 Wall. 687.
[
Footnote 10]
13 Stat. at Large 123;
Stewart v.
Kahn, 11 Wall. 500.
[
Footnote 11]
Levy v.
Stewart, 11 Wall. 249;
Steinbach v.
Stewart, 11 Wall. 572.
[
Footnote 12]
Hamilton Co. v.
Massachusetts, 6 Wall. 636.
[
Footnote 13]
Steines v. Franklin County, supra, p.
81
U. S. 15.
